Judicial_Council_of_California_Civil_Jury_Instructions
                     Judicial Council of California
Civil Jury Instructions
CACI*
* Pronounced “Casey”
As approved at the
Judicial Council’s Rules Committee October 2021 Meeting
and Judicial Council November 2021 Meeting
1
Judicial Council of California
Series 100–2500
Judicial Council of California
Advisory Committee on Civil Jury Instructions
Hon. Martin J. Tangeman, Chair
LexisNexis Matthew Bender
Official Publisher
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ISSN: 1549-7100
ISBN: 978-1-6633-0050-8 (print)
© 2021 by the Judicial Council of California. All rights reserved. No copyright is claimed by the Judicial Council of
California to the Table of Contents, Life Expectancy Tables, Table of Statutes, Table of Cases, Index, or the Tables of
Related Instructions.
© 2021, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, Secondary
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CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2022 edition)
Cite these instructions: “CACI No. _________.”
Cite these verdict forms: “CACI No. VF-_________.”
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Preface to CACI Updates
This edition of CACI includes a number of additions and changes to the instructions, which
were first published in 2003. In providing these updates, the Judicial Council Advisory
Committee on Civil Jury Instructions is fulfilling its charge to maintain CACI. The committee
is also striving to add instructions in new areas of the law and to augment existing areas.
The impetus for the revisions came from several sources including CACI users who detected
changes in the law or who simply sought to do a better job of explaining the law in plain
English. Responding to feedback from users is consistent with the Advisory Committee’s goal
to act as a vehicle for maintaining CACI as the work product of the legal community. We hope
that our hundreds of contributors view our role in the same way and that they will continue to
support us.
November 2021
Hon. Martin J. Tangeman
Court of Appeal, Second District
Chair, Advisory Committee on Civil Jury Instructions
____________________________________________________________________________
The Advisory Committee on Civil Jury Instructions welcomes comments. Send comments
by e-mail to: [email protected]
Or you may send print comments by regular mail to:
Advisory Committee on Civil Jury Instructions—Attn.
Eric Long
Legal Services Office
455 Golden Gate Avenue
San Francisco, CA 94102-3588
iii
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Table of New and Revised CACI
November 2021
This 2022 Edition of CACI includes all of the new and revised California Civil Jury
Instructions approved by the Judicial Council’s Rules Committee at its October 2021 meeting
and the Judicial Council at its November 2021 meetings.
Volume 1
NEGLIGENCE
400. Negligence—Essential Factual Elements (sources and authority)
MEDICAL NEGLIGENCE
533. Failure to Obtain Informed Consent—Essential Factual Elements (sources and authority)
555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit (Code Civ.
Proc., § 340.5) (sources and authority)
DANGEROUS CONDITION OF PUBLIC PROPERTY
1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6) (sources and authority)
MALICIOUS PROSECUTION
1501. Wrongful Use of Civil Proceedings (sources and authority)
EMOTIONAL DISTRESS
1621. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander—Essential Factual Elements (sources and authority)
DEFAMATION
1708. Coerced Self-Publication (sources and authority)
FRAUD OR DECEIT
1903. Negligent Misrepresentation (sources and authority)
INSURANCE LITIGATION
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable Settlement Demand Within Liability Policy
Limits—Essential Factual Elements (revised)
FAIR EMPLOYMENT AND HOUSING ACT
2521A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Employer or Entity Defendant (revised)
2521B. Work Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Employer or Entity Defendant (revised)
2521C. Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or
Entity Defendant (revised)
2522A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant (revised)
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Table of New and Revised CACI
2522B. Work Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Individual Defendant (revised)
2522C. Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual
Defendant (revised)
VF-2506A. Work Environment Harassment—Conduct Directed at Plaintiff—Employer or Entity
Defendant (revised)
VF-2506B. Work Environment Harassment—Conduct Directed at Others—Employer or Entity Defendant
(revised)
VF-2506C. Work Environment Harassment—Sexual Favoritism—Employer or Entity Defendant
(revised)
VF-2507A. Work Environment Harassment—Conduct Directed at Plaintiff—Individual Defendant
(revised)
VF-2507B. Work Environment Harassment—Conduct Directed at Others—Individual Defendant
(revised)
VF-2507C. Work Environment Harassment—Sexual Favoritism—Individual Defendant (revised)
Volume 2
LABOR CODE ACTIONS
2702. Nonpayment of Overtime Compensation—Essential Factual Elements (revised)
2704. Waiting-Time Penalty for Nonpayment of Wages (revised)
2705. Independent Contractor—Affirmative Defense—Worker Was Not Hiring Entity’s Employee
(revised)
2750. Failure to Compensate Employee for Necessary Expenditures or Losses—Essential Factual
Elements (new)
2752. Tip Pool Gratuities—Essential Factual Elements (new)
2753. Failure to Pay All Vested Vacation Time—Essential Factual Elements (new)
2754. Reporting Time Pay—Essential Factual Elements (new)
CIVIL RIGHTS
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements (42
U.S.C. § 1983) (sources and authority)
3041. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care (revised)
3046. Violation of Pretrial Detainee’s Federal Civil Rights—Fourteenth Amendment—Medical Care and
Conditions of Confinement (new)
3050. Retaliation—Essential Factual Elements (revised)
SONG-BEVERLY CONSUMER WARRANTY ACT
3231. Continuation of Express or Implied Warranty During Repairs (Civ. Code, § 1795.6) (sources and
authority)
VICARIOUS RESPONSIBILITY
3709. Ostensible Agent (revised)
3714. Ostensible Agency—Physician-Hospital Relationship (new)
UNLAWFUL DETAINER
vi
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Table of New and Revised CACI
4304. Termination for Violation of Terms of Lease/Agreement—Essential Factual Elements (revised)
4330. Denial of Requested Accommodation (new)
vii
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Table of Renumbered and Revoked
Instructions
214 Revoked December 2012
361 Revoked December 2013
408 Renumbered to 470 May 2017
409 Renumbered to 471 May 2017
410 Renumbered to 428 and replaced by new 410 December 2013
410 Renumbered to 472 410 May 2017
450 Revoked June 2010; replaced by 450A, 450B December 2010
450A Derived from 450 December 2010
450B Derived from 450 December 2010
470 Renumbered from 408 May 2017
471 Renumbered from 409 May 2017
472 Renumbered from 410 May 2017
VF-405 Renumbered to VF-411 December 2015
VF-411 Renumbered from VF-405 December 2015
503 Replaced by 503A, 503B April 2007
503A Derived from 503 April 2007
503B Derived from 503 April 2007
530 Replaced by 530A, 530B April 2007
530A Derived from 530 April 2007
530B Derived from 530 April 2007
605 Renumbered to 4106 December 2007
802 Revoked February 2007
1009 Replaced by 1009A, 1009B February 2007
1009A Derived from 1009 February 2007
1009B Derived from 1009 February 2007
1009C Revoked December 2011
1009D Derived from 1009B April 2009
1123 Renumbered to 1124 December 2014
1124 Renumbered from 1123 December 2014
1207 Replaced by 1207A, 1207B April 2009
1207A Derived from 1207 April 2009
1207B Derived from 1207 April 2009
1240 Revoked June 2010; restored December 2010
VF-1202 Revoked December 2014
1305 Renumbered to 1305A May 2021
1305A Renumbered from 1305 May 2021
VF-1303 Renumbered to VF-1303A May 2021
VF-1303A Renumbered from VF-1303 May 2021
1503 Revoked October 2008; replaced by former 1506 December 2013
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Derived, Renumbered, Replaced, Revoked CACI
1504 Revoked October 2008
1505 Renumbered to 1510 June 2013
1506 Renumbered to 1503 June 2013
1709 Renumbered from 1722 November 2017
1722 Renumbered to 1709 November 2017
1722 Renumbered from 1724 November 2017
1724 Renumbered to new 1722 November 2017
1804 Replaced by 1804A, 1804B April 2008
1804A Derived from 1804 April 2008
1804B Derived from 1804 April 2008
1806 Revoked December 2007
1808 Revoked June 2015
VF-1805 Revoked December 2007
VF-1806 Revoked December 2007
1905 Revoked December 2013
2203 Revoked December 2013
VF-2302 Revoked April 2008
2402 Revoked November 2018
2407 Renumbered to 3963 November 2018
2433 Renumbered to 3903P November 2018
2440 Revoked June 2013; restored December 2013; renumbered to 4600 June 2015
2442 Renumbered to 4601 June 2015
2443 Renumbered to 4602 June 2015
2521 Replaced by 2521A, 2521B, 2521C December 2007
2521A Derived from 2521 December 2007
2521B Derived from 2521 December 2007
2521C Derived from 2521 December 2007
2522 Replaced by 2522A, 2522B, 2522C December 2007
2522A Derived from 2522 December 2007
2522B Derived from 2522 December 2007
2522C Derived from 2522 December 2007
2543 Revoked June 2013; restored December 2013
2561 Revoked December 2012; restored June 2013
VF-2506 Replaced by VF-2506A, VF-2506B, VF-2506C December 2007
VF-2506A Derived from VF-2506 December 2007
VF-2506B Derived from VF-2506 December 2007
VF-2506C Derived from VF-2506 December 2007
VF-2507 Replaced by VF-2507A, VF-2507B, VF-2507C December 2007
VF-2507A Derived from VF-2507 December 2007
VF-2507B Derived from VF-2507 December 2007
VF-2507C Derived from VF-2507 December 2007
2613 Revoked May 2021
2630 Revoked May 2021
2730 Revoked June 2014; restored December 2014; renumbered to 4603 June 2015
2731 Renumbered to 4604 June 2015
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Derived, Renumbered, Replaced, Revoked CACI
3001 Renumbered to 3020 and replaced by former 3007 December 2012
3002 Renumbered to 3022 and replaced by former 3008 December 2012
3003 Renumbered to 3023 and replaced by former 3009 December 2012
3004 Renumbered to 3024 and replaced by former 3010 December 2012
3005 Renumbered to 3025 and replaced by former 3017 December 2012
3006 Renumbered to 3026 December 2012
3007 Renumbered to 3001 December 2012
3008 Renumbered to 3002 December 2012
3009 Renumbered to 3003 December 2012
3010 Renumbered to 3013 and replaced by new 3010 December 2010; renumbered
to 3004 December 2012
3011 Renumbered to 3040 December 2012
3012 Renumbered to 3041 December 2012
3013 Renumbered to 3017 and replaced by new 3013 December 2010; renumbered
to 3042 December 2012
3014 Renumbered to 3021 December 2012
3015 Revoked December 2012
3016 Renumbered to 3050 December 2012
3017 Renumbered to 3005 December 2012
3020 Renumbered to 3060 and replaced by former 3001 December 2012
3021 Renumbered to 3061 and replaced by former 3014 December 2012
3022 Renumbered to 3062 and replaced by former 3002 December 2012
3023 Replaced by 3023A, 3023B December 2009; replaced by former 3003 De-
cember 2012
3023A Derived from 3023 December 2009; renumbered to 3063 December 2012
3023B Derived from 3023 December 2009; renumbered to 3064 December 2012
3024 Renumbered to 3065 and replaced by former 3004 December 2012
3025 Renumbered to 3066 and replaced by former 3005 December 2012
3026 Renumbered to 3067 and replaced by former 3006 December 2012
3027 Renumbered to 3068 December 2012; replaced by new 3027 December 2013
3028 Renumbered to 3069 December 2012
VF-3001 Renumbered to VF-3010 and replaced by former VF-3005 December 2012
VF-3002 Renumbered to VF-3011 and replaced by former VF-3006 December 2012
VF-3003 Renumbered to VF-3012 December 2012
VF-3004 Renumbered to VF-3013 December 2012
VF-3005 Renumbered to VF-3001 December 2012
VF-3006 Renumbered to VF-3002 December 2012
VF-3007 Renumbered to VF-3020 December 2012
VF-3008 Renumbered to VF-3021 December 2012
VF-3009 Renumbered to VF-3022 December 2012
VF-3010 Renumbered to VF-3030 and replaced by former VF-3001 December 2012
VF-3011 Renumbered to VF-3031 and replaced by former VF-3002 December 2012
VF-3012 Renumbered to VF-3032 and replaced by former VF-3003 December 2012
VF-3013 Renumbered to VF-3033 and replaced by former VF-3004 December 2012
VF-3014 Renumbered to VF-3034 December 2012
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Derived, Renumbered, Replaced, Revoked CACI
VF-3015 Renumbered to VF-3035 December 2012
3102 Replaced by 3102A, 3102B October 2008
3102A Derived from 3102 October 2008
3102B Derived from 3102 October 2008
3105 Revoked October 2008
3108 Revoked October 2008
3111 Revoked October 2008
3213 Renumbered to 3222 June 2012
3230 Renumbered to 3206 and replaced by new 3230 June 2012
3509 Renumbered to 3509A May 2017
3509A Renumbered from 3509 May 2017
3511 Renumbered to 3511A May 2017
3511A Renumbered from 3511 May 2017
3724 Renumbered from 3726 November 2017
3724 Renumbered to new 3726 November 2017
3726 Renumbered from 3724 November 2017
3726 Renumbered to new 3724 November 2017
3904 Renumbered to 3904A December 2010
3963 Renumbered to 3965 November 2018
4003 Revoked May 2019
4010 Revoked July 2018
4106 Renumbered to 4120 and replaced by former 605 December 2007
4606 Revoked November 2017
4600 Renumbered from 2440 June 2015
4601 Renumbered from 2442 June 2015
4602 Renumbered from 2443 June 2015
4603 Renumbered from 2730 June 2015
4604 Renumbered from 2731 June 2015
xii
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Judicial Council Advisory Committee on Civil Jury Instructions
HON. MARTIN J. TANGEMAN
Chair
COMMITTEE MEMBERS
HON. MARY ARAND
HON. SUZANNE R. BOLANOS
MS. A. MARISA CHUN
MR. NICHOLAS P. CONNON
HON. ROBERT P. DAHLQUIST
MR. ROBERT A. GOODIN
HON. ADRIENNE M. GROVER
PROF. PAUL T. HAYDEN
HON. JUDY HOLZER HERSHER (Ret.)
HON. AMY D. HOGUE
HON. MICHAEL W. JONES
MR. MICHAEL A. KELLY
HON. MARLA J. MILLER
MS. MELINDA PILLING
MR. JULIAN W. POON
MR. TODD M. SCHNEIDER
HON. RICHARD L. SEABOLT
HON. MARK WOOD SNAUFFER
MS. CHRISTINE SPAGNOLI
MS. MARY-CHRISTINE SUNGAILA
ADMINISTRATIVE DIRECTOR, STAFF TO THE JUDICIAL COUNCIL
MARTIN HOSHINO
xiii
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JC Advisory Committee
LEGAL SERVICES OFFICE
MS. DEBORAH BROWN, CHIEF COUNSEL
MR. ERIC LONG, ATTORNEY
xiv
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Judicial Council of California
Chair
Hon. Tani G. Cantil-Sakauye
Supreme Court
Hon. Carol A. Corrigan
Courts of Appeal
Hon. Carin T. Fujisaki Hon. Marsha G. Slough
Hon. Brad R. Hill
Trial Courts
Hon. Maria O. Anderson Hon. Jonathan B. Conklin
Hon. C. Todd Botke Hon. Samuel K. Feng
Hon. Stacy Boulware Eurie Hon. Harold W. Hopp
Hon. Kevin C. Brazile Hon. Dalila Carrol Lyons
Hon. Kyle S. Brodie Hon. David M. Rubin
Legislature
Hon. Richard Bloom Hon. Thomas J. Umberg
State Bar
Mr. David Fu Ms. Gretchen Nelson
Ms. Rachel W. Hill Mr. Maxwell V. Pritt
Advisory Members
Hon. Rupert A. Byrdsong Hon. Glenn Mondo
Ms. Rebecca J. Fleming Hon. Ann C. Moorman
Mr. Kevin Harrigan Hon. Theodore C. Zayner
Mr. Shawn Landry
Secretary
Martin Hoshino
The Judicial Council is the policymaking body of the California courts. Under the leadership of the Chief
Justice and in accordance with the California Constitution, the council is responsible for ensuring the
consistent, independent, impartial, and accessible administration of justice.
xv
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Preface
These instructions represent the work of a task force on jury instructions appointed by Chief
Justice Ronald M. George in 1997. The task force’s charge was to write instructions that are
legally accurate and understandable to the average juror. The six-year effort responded to a
perceived need for instructions written in plain English and the specific recommendation of the
Blue Ribbon Commission on Jury System Improvement.
Jurors perform an invaluable service in our democracy, making important decisions that
affect many aspects of our society. The Judicial Council instructions attempt to clarify the legal
principles jurors must consider in reaching their decisions. The instructions were prepared by a
statewide, broad-based task force consisting of court of appeal justices, trial judges, attorneys,
academics, and lay people. They are approved by the Judicial Council as the state’s official jury
instructions under the California Rules of Court (see now Cal. Rules of Court, Rule 2.1050(a)).
The Rules of Court provide that the use of these instructions is strongly encouraged (see now
Cal. Rules of Court, Rule 2.1050(e)).
These instructions were prepared with a minimum of three steps: staff attorney drafts,
subcommittee refinement, and full task force consideration. Initial drafts of the instructions
were prepared by staff attorneys in the former Administrative Office of the Courts (now Legal
Services Office) in San Francisco, primarily Lyn Hinegardner. Lawyers throughout the state
provided subject-matter expertise and, in some cases, sets of instructions from which the task
force began its drafting. These instructions were submitted to the legal community for comment
and, in responding, hundreds of attorneys and judges provided valuable assistance. Several
organizations, most particularly State Bar sections, provided invaluable input. A list of people
and organizations who contributed to this effort follows; we apologize to those who have been
omitted through oversight.
We are grateful to the publisher of this work. Representatives of LexisNexis Matthew
Bender worked closely with us to prepare the jury instructions for publication. We appreciate
their efficiency and courtesy.
We would also like to express our appreciation to our predecessor. The people of California
and the legal community have been well served for over 60 years by BAJI, California Jury
Instructions, Civil, Book of Approved Jury Instructions, written by a committee of the Superior
Court of California, County of Los Angeles. That we have taken a very different approach to
drafting of instructions does not detract from the historic importance of work done by the BAJI
committee.
We believe that these instructions go a long way toward achieving the goal of a plain-
English explanation of the law. These instructions, like the law, will be constantly changing.
Change will come not only through appellate decisions and legislation but also through the
observations and comments of the legal community. The Judicial Council Advisory Committee
on Civil Jury Instructions, which has the responsibility of maintaining these instructions,
welcomes your comments and suggestions for improvement.
September 2003
James D. Ward, Former Associate Justice
Court of Appeal, Fourth Appellate District, Division Two
xvii
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Preface
Vice-Chair, Task Force on Jury Instructions
Chair, Civil Instruction Section
xviii
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Judicial Council Task Force on Jury Instructions
Civil Instructions Subcommittee
Hon. James D. Ward, Chair Hon. Carolyn B. Kuhl
Prof. Lee Campbell Ms. Edith R. Matthai
Mr. William B. Chapman Hon. Michael B. Orfield
Hon. H. Walter Croskey Hon. Stuart R. Pollak
Hon. Barton C. Gaut Mr. Tyler Pon
Ms. Janet M. Green Hon. Ignazio J. Ruvolo
Hon. Joseph B. Harvey Mr. Daniel U. Smith
Hon. Harry E. Hull, Jr. Ms. Christine Spagnoli
Mr. Michael A. Kelly Hon. Lynn O’Malley Taylor
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Table of Contents
Volume 1
USER GUIDE
SERIES 100 PRETRIAL
SERIES 200 EVIDENCE
SERIES 300 CONTRACTS
SERIES 400 NEGLIGENCE
SERIES 500 MEDICAL NEGLIGENCE
SERIES 600 PROFESSIONAL NEGLIGENCE
SERIES 700 MOTOR VEHICLES AND HIGHWAY SAFETY
SERIES 800 RAILROAD CROSSINGS
SERIES 900 COMMON CARRIERS
SERIES 1000 PREMISES LIABILITY
SERIES 1100 DANGEROUS CONDITION OF PUBLIC PROPERTY
SERIES 1200 PRODUCTS LIABILITY
SERIES 1300 ASSAULT AND BATTERY
SERIES 1400 FALSE IMPRISONMENT
SERIES 1500 MALICIOUS PROSECUTION
SERIES 1600 EMOTIONAL DISTRESS
SERIES 1700 DEFAMATION
SERIES 1800 RIGHT OF PRIVACY
SERIES 1900 FRAUD OR DECEIT
xxi
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SERIES 2000 TRESPASS
SERIES 2100 CONVERSION
SERIES 2200 ECONOMIC INTERFERENCE
SERIES 2300 INSURANCE LITIGATION
SERIES 2400 WRONGFUL TERMINATION
SERIES 2500 FAIR EMPLOYMENT AND HOUSING ACT
xxii
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Volume 2
SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT
SERIES 2700 LABOR CODE ACTIONS
SERIES 2800 WORKERS’ COMPENSATION
SERIES 2900 FEDERAL EMPLOYERS’ LIABILITY ACT
SERIES 3000 CIVIL RIGHTS
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTEC-
TION ACT
SERIES 3200 SONG-BEVERLY CONSUMER WARRANTY ACT
SERIES 3300 UNFAIR PRACTICES ACT
SERIES 3400 CARTWRIGHT ACT
SERIES 3500 EMINENT DOMAIN
SERIES 3600 CONSPIRACY
SERIES 3700 VICARIOUS RESPONSIBILITY
SERIES 3800 EQUITABLE INDEMNITY
SERIES 3900 DAMAGES
SERIES 4000 LANTERMAN-PETRIS-SHORT ACT
SERIES 4100 BREACH OF FIDUCIARY DUTY
SERIES 4200 UNIFORM VOIDABLE TRANSACTIONS ACT
SERIES 4300 UNLAWFUL DETAINER
SERIES 4400 TRADE SECRETS
SERIES 4500 CONSTRUCTION LAW
SERIES 4600 WHISTLEBLOWER PROTECTION
xxiii
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SERIES 4700 CONSUMERS LEGAL REMEDIES ACT
SERIES 4800 CALIFORNIA FALSE CLAIMS ACT
SERIES 4900 REAL PROPERTY LAW
SERIES 5000 CONCLUDING INSTRUCTIONS
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
xxiv
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Volume 1 Table of Contents
USER GUIDE
SERIES 100 PRETRIAL
100. Preliminary Admonitions
101. Overview of Trial
102. Taking Notes During the Trial
103. Multiple Parties
104. Nonperson Party
105. Insurance
106. Evidence
107. Witnesses
108. Duty to Abide by Translation Provided in Court
109. Removal of Claims or Parties
110. Service Provider for Juror With Disability
111. Instruction to Alternate Jurors
112. Questions From Jurors
113. Bias
114. Bench Conferences and Conferences in Chambers
115. “Class Action” Defined (Plaintiff Class)
116. Why Electronic Communications and Research Are Prohibited
117. Wealth of Parties
118. Personal Pronouns
119–199. Reserved for Future Use
SERIES 200 EVIDENCE
200. Obligation to Prove—More Likely True Than Not True
201. Highly Probable—Clear and Convincing Proof
202. Direct and Indirect Evidence
203. Party Having Power to Produce Better Evidence
204. Willful Suppression of Evidence
205. Failure to Explain or Deny Evidence
206. Evidence Admitted for Limited Purpose
207. Evidence Applicable to One Party
208. Deposition as Substantive Evidence
209. Use of Interrogatories of a Party
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210. Requests for Admissions
211. Prior Conviction of a Felony
212. Statements of a Party Opponent
213. Adoptive Admissions
214. Reserved for Future Use
215. Exercise of a Communication Privilege
216. Exercise of Right Not to Incriminate Oneself (Evid. Code, § 913)
217. Evidence of Settlement
218. Statements Made to Physician (Previously Existing Condition)
219. Expert Witness Testimony
220. Experts—Questions Containing Assumed Facts
221. Conflicting Expert Testimony
222. Evidence of Sliding-Scale Settlement
223. Opinion Testimony of Lay Witness
224. Testimony of Child
225–299. Reserved for Future Use
SERIES 300 CONTRACTS
300. Breach of Contract—Introduction
301. Third-Party Beneficiary
302. Contract Formation—Essential Factual Elements
303. Breach of Contract—Essential Factual Elements
304. Oral or Written Contract Terms
305. Implied-in-Fact Contract
306. Unformalized Agreement
307. Contract Formation—Offer
308. Contract Formation—Revocation of Offer
309. Contract Formation—Acceptance
310. Contract Formation—Acceptance by Silence
311. Contract Formation—Rejection of Offer
312. Substantial Performance
313. Modification
314. Interpretation—Disputed Words
315. Interpretation—Meaning of Ordinary Words
316. Interpretation—Meaning of Technical Words
317. Interpretation—Construction of Contract as a Whole
318. Interpretation—Construction by Conduct
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319. Interpretation—Reasonable Time
320. Interpretation—Construction Against Drafter
321. Existence of Condition Precedent Disputed
322. Occurrence of Agreed Condition Precedent
323. Waiver of Condition Precedent
324. Anticipatory Breach
325. Breach of Implied Covenant of Good Faith and Fair Dealing—Essential Factual
Elements
326. Assignment Contested
327. Assignment Not Contested
328. Breach of Implied Duty to Perform With Reasonable Care—Essential Factual Elements
329. Reserved for Future Use
330. Affirmative Defense—Unilateral Mistake of Fact
331. Affirmative Defense—Bilateral Mistake
332. Affirmative Defense—Duress
333. Affirmative Defense—Economic Duress
334. Affirmative Defense—Undue Influence
335. Affirmative Defense—Fraud
336. Affirmative Defense—Waiver
337. Affirmative Defense—Novation
338. Affirmative Defense—Statute of Limitations
339–349. Reserved for Future Use
350. Introduction to Contract Damages
351. Special Damages
352. Loss of Profits—No Profits Earned
353. Loss of Profits—Some Profits Earned
354. Owner’s/Lessee’s Damages for Breach of Contract to Construct Improvements on Real
Property
355. Obligation to Pay Money Only
356. Buyer’s Damages for Breach of Contract for Sale of Real Property (Civ. Code, § 3306)
357. Seller’s Damages for Breach of Contract to Purchase Real Property
358. Mitigation of Damages
359. Present Cash Value of Future Damages
360. Nominal Damages
361. Reliance Damages
362–369. Reserved for Future Use
370. Common Count: Money Had and Received
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371. Common Count: Goods and Services Rendered
372. Common Count: Open Book Account
373. Common Count: Account Stated
374. Common Count: Mistaken Receipt
375. Restitution From Transferee Based on Quasi-Contract or Unjust Enrichment
376–379. Reserved for Future Use
380. Agreement Formalized by Electronic Means—Uniform Electronic Transactions Act
(Civ. Code, § 1633.1 et seq.)
381–399. Reserved for Future Use
VF-300. Breach of Contract
VF-301. Breach of Contract—Affirmative Defense—Unilateral Mistake of Fact
VF-302. Breach of Contract—Affirmative Defense—Duress
VF-303. Breach of Contract—Contract Formation at Issue
VF-304. Breach of Implied Covenant of Good Faith and Fair Dealing
VF-305–VF-399. Reserved for Future Use
SERIES 400 NEGLIGENCE
400. Negligence—Essential Factual Elements
401. Basic Standard of Care
402. Standard of Care for Minors
403. Standard of Care for Physically Disabled Person
404. Intoxication
405. Comparative Fault of Plaintiff
406. Apportionment of Responsibility
407. Comparative Fault of Decedent
408–410. Reserved for Future Use
411. Reliance on Good Conduct of Others
412. Duty of Care Owed Children
413. Custom or Practice
414. Amount of Caution Required in Dangerous Situations
415. Employee Required to Work in Dangerous Situations
416. Amount of Caution Required in Transmitting Electric Power
417. Special Doctrines: Res ipsa loquitur
418. Presumption of Negligence per se
419. Presumption of Negligence per se (Causation Only at Issue)
420. Negligence per se: Rebuttal of the Presumption of Negligence—Violation Excused
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421. Negligence per se: Rebuttal of the Presumption of Negligence (Violation of Minor
Excused)
422. Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof. Code,
§ 25602.1)
423. Public Entity Liability for Failure to Perform Mandatory Duty
424. Negligence Not Contested—Essential Factual Elements
425. “Gross Negligence” Explained
426. Negligent Hiring, Supervision, or Retention of Employee
427. Furnishing Alcoholic Beverages to Minors (Civ. Code, § 1714(d))
428. Parental Liability (Nonstatutory)
429. Negligent Sexual Transmission of Disease
430. Causation: Substantial Factor
431. Causation: Multiple Causes
432. Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act as Superseding Cause
434. Alternative Causation
435. Causation for Asbestos-Related Cancer Claims
436–439. Reserved for Future Use
440. Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other
Seizure─Essential Factual Elements
441. Negligent Use of Deadly Force by Peace Officer—Essential Factual Elements
442–449. Reserved for Future Use
450A. Good Samaritan—Nonemergency
450B. Good Samaritan—Scene of Emergency
450C. Negligent Undertaking
451. Affirmative Defense—Contractual Assumption of Risk
452. Sudden Emergency
453. Injury Incurred in Course of Rescue
454. Affirmative Defense—Statute of Limitations
455. Statute of Limitations—Delayed Discovery
456. Defendant Estopped From Asserting Statute of Limitations Defense
457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding
458–459. Reserved for Future Use
460. Strict Liability for Ultrahazardous Activities—Essential Factual Elements
461. Strict Liability for Injury Caused by Wild Animal—Essential Factual Elements
462. Strict Liability for Injury Caused by Domestic Animal With Dangerous
Propensities—Essential Factual Elements
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463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements
464–469. Reserved for Future Use
470. Primary Assumption of Risk—Exception to Nonliability—Coparticipant in Sport or
Other Recreational Activity
471. Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or
Coaches
472. Primary Assumption of Risk—Exception to Nonliability—Facilities Owners and
Operators and Event Sponsors
473. Primary Assumption of Risk—Exception to Nonliability—Occupation Involving
Inherent Risk
474–499. Reserved for Future Use
VF-400. Negligence—Single Defendant
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of Others
Not at Issue
VF-402. Negligence—Fault of Plaintiff and Others at Issue
VF-403. Primary Assumption of Risk—Liability of Coparticipant
VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches
VF-405. Primary Assumption of Risk—Liability of Facilities Owners and Operators and
Event Sponsors
VF-406. Negligence—Providing Alcoholic Beverages to Obviously Intoxicated Minor
VF-407. Strict Liability—Ultrahazardous Activities
VF-408. Strict Liability for Domestic Animal With Dangerous Propensities
VF-409. Dog Bite Statute (Civ. Code, § 3342)
VF-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation Would Not
Have Disclosed Pertinent Facts
VF-411. Parental Liability (Nonstatutory)
VF-412–VF-499. Reserved for Future Use
SERIES 500 MEDICAL NEGLIGENCE
500. Medical Negligence—Essential Factual Elements
501. Standard of Care for Health Care Professionals
502. Standard of Care for Medical Specialists
503A. Psychotherapist’s Duty to Protect Intended Victim From Patient’s Threat
503B. Affirmative Defense—Psychotherapist’s Communication of Threat to Victim and Law
Enforcement
504. Standard of Care for Nurses
505. Success Not Required
506. Alternative Methods of Care
507. Duty to Warn Patient
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508. Duty to Refer to a Specialist
509. Abandonment of Patient
510. Derivative Liability of Surgeon
511. Wrongful Birth—Sterilization/Abortion—Essential Factual Elements
512. Wrongful Birth—Essential Factual Elements
513. Wrongful Life—Essential Factual Elements
514. Duty of Hospital
515. Duty of Hospital to Provide Safe Environment
516. Duty of Hospital to Screen Medical Staff
517. Affirmative Defense—Patient’s Duty to Provide for the Patient’s Own Well-Being
518. Medical Malpractice: Res ipsa loquitur
519–530. Reserved for Future Use
530A. Medical Battery
530B. Medical Battery—Conditional Consent
531. Consent on Behalf of Another
532. Informed Consent—Definition
533. Failure to Obtain Informed Consent—Essential Factual Elements
534. Informed Refusal—Definition
535. Risks of Nontreatment—Essential Factual Elements
536–549. Reserved for Future Use
550. Affirmative Defense—Plaintiff Would Have Consented
551. Affirmative Defense—Waiver
552. Affirmative Defense—Simple Procedure
553. Affirmative Defense—Emotional State of Patient
554. Affirmative Defense—Emergency
555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit
(Code Civ. Proc., § 340.5)
556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit
(Code Civ. Proc., § 340.5)
557–599. Reserved for Future Use
VF-500. Medical Negligence
VF-501. Medical Negligence—Informed Consent—Affirmative Defense—Plaintiff Would
Have Consented Even If Informed
VF-502. Medical Negligence—Informed Consent—Affirmative Defense—Emergency
VF-503–VF-599. Reserved for Future Use
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SERIES 600 PROFESSIONAL NEGLIGENCE
600. Standard of Care
601. Negligent Handling of Legal Matter
602. Success Not Required
603. Alternative Legal Decisions or Strategies
604. Referral to Legal Specialist
605. Reserved for Future Use
606. Legal Malpractice Causing Criminal Conviction—Actual Innocence
607–609. Reserved for Future Use
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit
(Code Civ. Proc., § 340.6)
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit
(Code Civ. Proc., § 340.6)
612–699. Reserved for Future Use
SERIES 700 MOTOR VEHICLES AND HIGHWAY SAFETY
700. Basic Standard of Care
701. Definition of Right-of-Way
702. Waiver of Right-of-Way
703. Definition of “Immediate Hazard”
704. Left Turns (Veh. Code, § 21801)
705. Turning (Veh. Code, § 22107)
706. Basic Speed Law (Veh. Code, § 22350)
707. Speed Limit (Veh. Code, § 22352)
708. Maximum Speed Limit (Veh. Code, §§ 22349, 22356)
709. Driving Under the Influence (Veh. Code, §§ 23152, 23153)
710. Duties of Care for Pedestrians and Drivers in Crosswalk (Veh. Code, § 21950)
711. The Passenger’s Duty of Care for Own Safety
712. Affirmative Defense—Failure to Wear a Seat Belt
713–719. Reserved for Future Use
720. Motor Vehicle Owner Liability—Permissive Use of Vehicle
721. Motor Vehicle Owner Liability—Affirmative Defense—Use Beyond Scope of
Permission
722. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
723. Liability of Cosigner of Minor’s Application for Driver’s License
724. Negligent Entrustment of Motor Vehicle
725–729. Reserved for Future Use
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730. Emergency Vehicle Exemption (Veh. Code, § 21055)
731. Definition of “Emergency” (Veh. Code, § 21055)
732–799. Reserved for Future Use
VF-700. Motor Vehicle Owner Liability—Permissive Use of Vehicle
VF-701. Motor Vehicle Owner Liability—Permissive Use of Vehicle—Affirmative
Defense—Use Beyond Scope of Permission
VF-702. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
VF-703. Liability of Cosigner of Minor’s Application for Driver’s License
VF-704. Negligent Entrustment of Motor Vehicle
VF-705–VF-799. Reserved for Future Use
SERIES 800 RAILROAD CROSSINGS
800. Basic Standard of Care for Railroads
801. Duty to Comply With Safety Regulations
802. Reserved for Future Use
803. Regulating Speed
804. Lookout for Crossing Traffic
805. Installing Warning Systems
806. Comparative Fault—Duty to Approach Crossing With Care
807–899. Reserved for Future Use
SERIES 900 COMMON CARRIERS
900. Introductory Instruction
901. Status of Common Carrier Disputed
902. Duty of Common Carrier
903. Duty to Provide and Maintain Safe Equipment
904. Duty of Common Carrier Toward Disabled/Infirm Passengers
905. Duty of Common Carrier Toward Minor Passengers
906. Duty of Passenger for Own Safety
907. Status of Passenger Disputed
908. Duty to Protect Passengers From Assault
909–999. Reserved for Future Use
SERIES 1000 PREMISES LIABILITY
1000. Premises Liability—Essential Factual Elements
1001. Basic Duty of Care
1002. Extent of Control Over Premises Area
1003. Unsafe Conditions
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1004. Obviously Unsafe Conditions
1005. Business Proprietor’s or Property Owner’s Liability for the Criminal Conduct of Others
1006. Landlord’s Duty
1007. Sidewalk Abutting Property
1008. Liability for Adjacent Altered Sidewalk—Essential Factual Elements
1009A. Liability to Employees of Independent Contractors for Unsafe Concealed Conditions
1009B. Liability to Employees of Independent Contractors for Unsafe Conditions—Retained
Control
1009C. Reserved for Future Use
1009D. Liability to Employees of Independent Contractors for Unsafe Conditions—Defective
Equipment
1010. Affirmative Defense—Recreation Immunity—Exceptions (Civ. Code, § 846)
1011. Constructive Notice Regarding Dangerous Conditions on Property
1012. Knowledge of Employee Imputed to Owner
1013–1099. Reserved for Future Use
VF-1000. Premises Liability—Comparative Negligence of Others Not at Issue
VF-1001. Premises Liability—Affirmative Defense—Recreation Immunity—Exceptions
VF-1002. Premises Liability—Comparative Fault of Plaintiff at Issue
VF-1003–VF-1099. Reserved for Future Use
SERIES 1100 DANGEROUS CONDITION OF PUBLIC PROPERTY
1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov. Code,
§ 835)
1101. Control
1102. Definition of “Dangerous Condition” (Gov. Code, § 830(a))
1103. Notice (Gov. Code, § 835.2)
1104. Inspection System (Gov. Code, § 835.2(b)(1) & (2))
1105–1109. Reserved for Future Use
1110. Affirmative Defense—Natural Conditions (Gov. Code, § 831.2)
1111. Affirmative Defense—Condition Created by Reasonable Act or Omission (Gov. Code,
§ 835.4(a))
1112. Affirmative Defense—Reasonable Act or Omission to Correct (Gov. Code, § 835.4(b))
1113–1119. Reserved for Future Use
1120. Failure to Provide Traffic Control Signals (Gov. Code, § 830.4)
1121. Failure to Provide Traffic Warning Signals, Signs, or Markings (Gov. Code, § 830.8)
1122. Affirmative Defense—Weather Conditions Affecting Streets and Highways (Gov.
Code, § 831)
1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6)
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1124. Loss of Design Immunity (Cornette)
1125. Conditions on Adjacent Property
1126–1199. Reserved for Future Use
VF-1100. Dangerous Condition of Public Property
VF-1101. Dangerous Condition of Public Property—Affirmative Defense—Reasonable Act
or Omission (Gov. Code, § 835.4)
VF-1102–VF-1199. Reserved for Future Use
SERIES 1200 PRODUCTS LIABILITY
1200. Strict Liability—Essential Factual Elements
1201. Strict Liability—Manufacturing Defect—Essential Factual Elements
1202. Strict Liability—“Manufacturing Defect” Explained
1203. Strict Liability—Design Defect—Consumer Expectation Test—Essential Factual
Elements
1204. Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements—Shifting Burden of Proof
1205. Strict Liability—Failure to Warn—Essential Factual Elements
1206. Strict Liability—Failure to Warn—Products Containing Allergens (Not Prescription
Drugs)—Essential Factual Elements
1207A. Strict Liability—Comparative Fault of Plaintiff
1207B. Strict Liability—Comparative Fault of Third Person
1208. Component Parts Rule
1209–1219. Reserved for Future Use
1220. Negligence—Essential Factual Elements
1221. Negligence—Basic Standard of Care
1222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements
1223. Negligence—Recall/Retrofit
1224. Negligence—Negligence for Product Rental/Standard of Care
1225–1229. Reserved for Future Use
1230. Express Warranty—Essential Factual Elements
1231. Implied Warranty of Merchantability—Essential Factual Elements
1232. Implied Warranty of Fitness for a Particular Purpose—Essential Factual Elements
1233. Implied Warranty of Merchantability for Food—Essential Factual Elements
1234–1239. Reserved for Future Use
1240. Affirmative Defense to Express Warranty—Not “Basis of Bargain”
1241. Affirmative Defense—Exclusion or Modification of Express Warranty
1242. Affirmative Defense—Exclusion of Implied Warranties
1243. Notification/Reasonable Time
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1244. Affirmative Defense—Sophisticated User
1245. Affirmative Defense—Product Misuse or Modification
1246. Affirmative Defense—Design Defect—Government Contractor
1247. Affirmative Defense—Failure to Warn—Government Contractor
1248. Affirmative Defense—Inherently Unsafe Consumer Product (Civ. Code, § 1714.45)
1249. Affirmative Defense—Reliance on Knowledgeable Intermediary
1250–1299. Reserved for Future Use
VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at Issue
VF-1201. Strict Products Liability—Design Defect—Affirmative Defense—Misuse or
Modification
VF-1202. Strict Products Liability—Design Defect—Risk-Benefit Test
VF-1203. Strict Products Liability—Failure to Warn
VF-1204. Products Liability—Negligence—Comparative Fault of Plaintiff at Issue
VF-1205. Products Liability—Negligent Failure to Warn
VF-1206. Products Liability—Express Warranty—Affirmative Defense—Not “Basis of
Bargain”
VF-1207. Products Liability—Implied Warranty of Merchantability—Affirmative
Defense—Exclusion of Implied Warranties
VF-1208. Products Liability—Implied Warranty of Fitness for a Particular Purpose
VF-1209–VF-1299. Reserved for Future Use
SERIES 1300 ASSAULT AND BATTERY
1300. Battery—Essential Factual Elements
1301. Assault—Essential Factual Elements
1302. Consent Explained
1303. Invalid Consent
1304. Affirmative Defense—Self-Defense/Defense of Others
1305A. Battery by Law Enforcement Officer (Nondeadly Force)—Essential Factual Elements
1305B. Battery by Peace Officer (Deadly Force)—Essential Factual Elements
1306. Sexual Battery—Essential Factual Elements
1307–1319. Reserved for Future Use
1320. Intent
1321. Transferred Intent
1322–1399. Reserved for Future Use
VF-1300. Battery
VF-1301. Battery—Self-Defense/Defense of Others at Issue
VF-1302. Assault
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VF-1303A. Battery by Law Enforcement Officer (Nondeadly Force)
VF-1303B. Battery by Peace Officer (Deadly Force)
VF-1304–VF-1399. Reserved for Future Use
SERIES 1400 FALSE IMPRISONMENT
1400. No Arrest Involved—Essential Factual Elements
1401. False Arrest Without Warrant by Peace Officer—Essential Factual Elements
1402. False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause
to Arrest
1403. False Arrest Without Warrant by Private Citizen—Essential Factual Elements
1404. False Arrest Without Warrant—Affirmative Defense—Private Citizen—Probable
Cause to Arrest
1405. False Arrest With Warrant—Essential Factual Elements
1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
1407. Unnecessary Delay in Processing/Releasing—Essential Factual Elements
1408. Affirmative Defense—Police Officer’s Lawful Authority to Detain
1409. Common Law Right to Detain for Investigation
1410–1499. Reserved for Future Use
VF-1400. False Imprisonment—No Arrest Involved
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right to Detain
for Investigation
VF-1402. False Arrest Without Warrant
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative Defense—Probable
Cause to Arrest
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative Defense—Probable
Cause to Arrest
VF-1405. False Arrest With Warrant
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
VF-1407. False Imprisonment—Unnecessary Delay in Processing/Releasing
VF-1408–VF-1499. Reserved for Future Use
SERIES 1500 MALICIOUS PROSECUTION
1500. Former Criminal Proceeding—Essential Factual Elements
1501. Wrongful Use of Civil Proceedings
1502. Wrongful Use of Administrative Proceedings
1503. Affirmative Defense—Proceeding Initiated by Public Employee Within Scope of
Employment (Gov. Code, § 821.6)
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1504. Former Criminal Proceeding—“Actively Involved” Explained
1505–1509. Reserved for Future Use
1510. Affirmative Defense—Reliance on Counsel
1511. Wrongful Use of Civil Proceedings—Affirmative Defense—Attorney’s Reliance on
Information Provided by Client
1512–1519. Reserved for Future Use
1520. Abuse of Process—Essential Factual Elements
1521–1529. Reserved for Future Use
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
1531–1599. Reserved for Future Use
VF-1500. Malicious Prosecution—Former Criminal Proceeding
VF-1501. Malicious Prosecution—Wrongful Use of Civil Proceedings
VF-1502. Malicious Prosecution—Wrongful Use of Civil Proceedings—Affirmative
Defense—Reliance on Counsel
VF-1503. Malicious Prosecution—Wrongful Use of Administrative Proceedings
VF-1504. Abuse of Process
VF-1505–VF-1599. Reserved for Future Use
SERIES 1600 EMOTIONAL DISTRESS
1600. Intentional Infliction of Emotional Distress—Essential Factual Elements
1601. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
1602. Intentional Infliction of Emotional Distress—“Outrageous Conduct” Defined
1603. Intentional Infliction of Emotional Distress—“Reckless Disregard” Defined
1604. Intentional Infliction of Emotional Distress—“Severe Emotional Distress” Defined
1605. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged Conduct
1606–1619. Reserved for Future Use
1620. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim—Essential Factual Elements
1621. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander—Essential Factual Elements
1622. Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear
of Cancer, HIV, or AIDS—Essential Factual Elements
1623. Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear
of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential
Factual Elements
1624–1699. Reserved for Future Use
VF-1600. Intentional Infliction of Emotional Distress
VF-1601. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged
Conduct
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VF-1602. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
VF-1603. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim
VF-1604. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander
VF-1605. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS
VF-1606. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent
Conduct
VF-1607–VF-1699. Reserved for Future Use
SERIES 1700 DEFAMATION
1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1702. Defamation per se—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1704. Defamation per se—Essential Factual Elements (Private Figure—Matter of Private
Concern)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private
Concern)
1706. Definition of Statement
1707. Fact Versus Opinion
1708. Coerced Self-Publication
1709. Retraction: News Publication or Broadcast (Civ. Code, § 48a)
1710–1719. Reserved for Future Use
1720. Affirmative Defense—Truth
1721. Affirmative Defense—Consent
1722. Affirmative Defense—Statute of Limitations—Defamation
1723. Common Interest Privilege—Malice (Civ. Code, § 47(c))
1724. Fair and True Reporting Privilege (Civ. Code, § 47(d))
1725–1729. Reserved for Future Use
1730. Slander of Title—Essential Factual Elements
1731. Trade Libel—Essential Factual Elements
1732–1799. Reserved for Future Use
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VF-1700. Defamation per se (Public Officer/Figure and Limited Public Figure)
VF-1701. Defamation per quod (Public Officer/Figure and Limited Public Figure)
VF-1702. Defamation per se (Private Figure—Matter of Public Concern)
VF-1703. Defamation per quod (Private Figure—Matter of Public Concern)
VF-1704. Defamation per se—Affirmative Defense—Truth (Private Figure—Matter of
Private Concern)
VF-1705. Defamation per quod (Private Figure—Matter of Private Concern)
VF-1706–VF-1719. Reserved for Future Use
VF-1720. Slander of Title
VF-1721. Trade Libel
VF-1722–VF-1799. Reserved for Future Use
Table A. Defamation Per Se
Table B. Defamation Per Quod
SERIES 1800 RIGHT OF PRIVACY
1800. Intrusion Into Private Affairs
1801. Public Disclosure of Private Facts
1802. False Light
1803. Appropriation of Name or Likeness—Essential Factual Elements
1804A. Use of Name or Likeness (Civ. Code, § 3344)
1804B. Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports
Broadcast or Account, or Political Campaign (Civ. Code, § 3344(d))
1805. Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment
(Comedy III)
1806. Affirmative Defense to Invasion of Privacy—First Amendment Balancing Test—Public
Interest
1807. Affirmative Defense—Invasion of Privacy Justified
1808. Stalking (Civ. Code, § 1708.7)
1809. Recording of Confidential Information (Pen. Code, §§ 632, 637.2)
1810. Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ.
Code, § 1708.85)
1811. Reserved for Future Use
1812. Comprehensive Computer Data and Access Fraud Act—Essential Factual Elements
(Pen. Code, § 502)
1813. Definition of “Access” (Pen. Code, § 502(b)(1))
1814. Damages for Investigating Violations of Comprehensive Computer Data and Access
Fraud Act (Pen. Code, § 502(e)(1))
1815–1819. Reserved for Future Use
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1820. Damages
1821. Damages for Use of Name or Likeness (Civ. Code § 3344(a))
1822–1899. Reserved for Future Use
VF-1800. Privacy—Intrusion Into Private Affairs
VF-1801. Privacy—Public Disclosure of Private Facts
VF-1802. Privacy—False Light
VF-1803. Privacy—Appropriation of Name or Likeness
VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344)
VF-1805–VF-1806. Reserved for Future Use
VF-1807. Privacy—Recording of Confidential Information (Pen. Code, §§ 632, 637.2)
VF-1808–VF-1899. Reserved for Future Use
SERIES 1900 FRAUD OR DECEIT
1900. Intentional Misrepresentation
1901. Concealment
1902. False Promise
1903. Negligent Misrepresentation
1904. Opinions as Statements of Fact
1905. Definition of Important Fact/Promise
1906. Misrepresentations Made to Persons Other Than the Plaintiff
1907. Reliance
1908. Reasonable Reliance
1909. Reserved for Future Use
1910. Real Estate Seller’s Nondisclosure of Material Facts
1911–1919. Reserved for Future Use
1920. Buyer’s Damages for Purchase or Acquisition of Property
1921. Buyer’s Damages for Purchase or Acquisition of Property—Lost Profits
1922. Seller’s Damages for Sale or Exchange of Property
1923. Damages—“Out of Pocket” Rule
1924. Damages—“Benefit of the Bargain” Rule
1925. Affirmative Defense—Statute of Limitations—Fraud or Mistake
1926–1999. Reserved for Future Use
VF-1900. Intentional Misrepresentation
VF-1901. Concealment
VF-1902. False Promise
VF-1903. Negligent Misrepresentation
VF-1904–VF-1999. Reserved for Future Use
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SERIES 2000 TRESPASS
2000. Trespass—Essential Factual Elements
2001. Trespass—Extrahazardous Activities
2002. Trespass to Timber—Essential Factual Elements (Civ. Code, § 3346)
2003. Damage to Timber—Willful and Malicious Conduct
2004. “Intentional Entry” Explained
2005. Affirmative Defense—Necessity
2006–2019. Reserved for Future Use
2020. Public Nuisance—Essential Factual Elements
2021. Private Nuisance—Essential Factual Elements
2022. Private Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit
2023. Failure to Abate Artificial Condition on Land Creating Nuisance
2024–2029. Reserved for Future Use
2030. Affirmative Defense—Statute of Limitations—Trespass or Private Nuisance
2031. Damages for Annoyance and Discomfort—Trespass or Nuisance
2032–2099. Reserved for Future Use
VF-2000. Trespass
VF-2001. Trespass—Affirmative Defense—Necessity
VF-2002. Trespass—Extrahazardous Activities
VF-2003. Trespass to Timber (Civ. Code, § 3346)
VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ. Code, § 3346; Code
Civ. Proc., § 733)
VF-2005. Public Nuisance
VF-2006. Private Nuisance
VF-2007–VF-2099. Reserved for Future Use
SERIES 2100 CONVERSION
2100. Conversion—Essential Factual Elements
2101. Trespass to Chattels—Essential Factual Elements
2102. Presumed Measure of Damages for Conversion (Civ. Code, § 3336)
2103–2199. Reserved for Future Use
VF-2100. Conversion
VF-2101–VF-2199. Reserved for Future Use
SERIES 2200 ECONOMIC INTERFERENCE
2200. Inducing Breach of Contract
2201. Intentional Interference With Contractual Relations—Essential Factual Elements
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2202. Intentional Interference With Prospective Economic Relations—Essential Factual
Elements
2203. Intent
2204. Negligent Interference With Prospective Economic Relations
2205. Intentional Interference With Expected Inheritance—Essential Factual Elements
2206–2209. Reserved for Future Use
2210. Affirmative Defense—Privilege to Protect Own Economic Interest
2211–2299. Reserved for Future Use
VF-2200. Inducing Breach of Contract
VF-2201. Intentional Interference With Contractual Relations
VF-2202. Intentional Interference With Prospective Economic Relations
VF-2203. Negligent Interference With Prospective Economic Relations
VF-2204–VF-2299. Reserved for Future Use
SERIES 2300 INSURANCE LITIGATION
2300. Breach of Contractual Duty to Pay a Covered Claim—Essential Factual Elements
2301. Breach of Insurance Binder—Essential Factual Elements
2302. Breach of Contract for Temporary Life Insurance—Essential Factual Elements
2303. Affirmative Defense—Insurance Policy Exclusion
2304. Exception to Insurance Policy Exclusion—Burden of Proof
2305. Lost or Destroyed Insurance Policy
2306. Covered and Excluded Risks—Predominant Cause of Loss
2307. Insurance Agency Relationship Disputed
2308. Affirmative Defense—Misrepresentation or Concealment in Insurance Application
2309. Termination of Insurance Policy for Fraudulent Claim
2310–2319. Reserved for Future Use
2320. Affirmative Defense—Failure to Provide Timely Notice
2321. Affirmative Defense—Insured’s Breach of Duty to Cooperate in Defense
2322. Affirmative Defense—Insured’s Voluntary Payment
2323–2329. Reserved for Future Use
2330. Implied Obligation of Good Faith and Fair Dealing Explained
2331. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or Delay in
Payment (First Party)—Essential Factual Elements
2332. Bad Faith (First Party)—Failure to Properly Investigate Claim—Essential Factual
Elements
2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights—Essential
Factual Elements
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable Settlement Demand Within
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Liability Policy Limits—Essential Factual Elements
2335. Bad Faith—Advice of Counsel
2336. Bad Faith (Third Party)—Unreasonable Failure to Defend—Essential Factual Elements
2337. Factors to Consider in Evaluating Insurer’s Conduct
2338–2349. Reserved for Future Use
2350. Damages for Bad Faith
2351. Insurer’s Claim for Reimbursement of Costs of Defense of Uncovered Claims
2352–2359. Reserved for Future Use
2360. Judgment Creditor’s Action Against Insurer—Essential Factual Elements
2361. Negligent Failure to Obtain Insurance Coverage—Essential Factual Elements
2362–2399. Reserved for Future Use
VF-2300. Breach of Contractual Duty to Pay a Covered Claim
VF-2301. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or
Delay in Payment
VF-2302. Reserved for Future Use
VF-2303. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights
VF-2304–VF-2399. Reserved for Future Use
SERIES 2400 WRONGFUL TERMINATION
2400. Breach of Employment Contract—Unspecified Term—“At-Will” Presumption
2401. Breach of Employment Contract—Unspecified Term—Actual or Constructive
Discharge—Essential Factual Elements
2402. Reserved for Future Use
2403. Breach of Employment Contract—Unspecified Term—Implied-in-Fact Promise Not to
Discharge Without Good Cause
2404. Breach of Employment Contract—Unspecified Term—“Good Cause” Defined
2405. Breach of Implied Employment Contract—Unspecified Term—“Good Cause”
Defined—Misconduct
2406. Breach of Employment Contract—Unspecified Term—Damages
2407–2419. Reserved for Future Use
2420. Breach of Employment Contract—Specified Term—Essential Factual Elements
2421. Breach of Employment Contract—Specified Term—Good-Cause Defense (Lab. Code,
§ 2924)
2422. Breach of Employment Contract—Specified Term—Damages
2423. Breach of Implied Covenant of Good Faith and Fair Dealing—Employment
Contract—Essential Factual Elements
2424. Affirmative Defense—Breach of the Implied Covenant of Good Faith and Fair
Dealing—Good Faith Though Mistaken Belief
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2425–2429. Reserved for Future Use
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements
2431. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate
Public Policy
2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions That Violate Public Policy
2433–2440. Reserved for Future Use
2441. Discrimination Against Member of Military—Essential Factual Elements (Mil. & Vet.
Code, § 394)
2442–2499. Reserved for Future Use
VF-2400. Breach of Employment Contract—Unspecified Term
VF-2401. Breach of Employment Contract—Unspecified Term—Constructive Discharge
VF-2402. Breach of Employment Contract—Specified Term
VF-2403. Breach of Employment Contract—Specified Term—Good-Cause Defense
VF-2404. Employment—Breach of the Implied Covenant of Good Faith and Fair Dealing
VF-2405. Breach of the Implied Covenant of Good Faith and Fair Dealing—Affirmative
Defense—Good Faith Mistaken Belief
VF-2406. Wrongful Discharge in Violation of Public Policy
VF-2407. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate
Public Policy
VF-2408. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions for Improper Purpose That Violates Public Policy
VF-2409–VF-2499. Reserved for Future Use
SERIES 2500 FAIR EMPLOYMENT AND HOUSING ACT
2500. Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))
2501. Affirmative Defense—Bona fide Occupational Qualification
2502. Disparate Impact—Essential Factual Elements (Gov. Code, § 12940(a))
2503. Affirmative Defense—Business Necessity/Job Relatedness
2504. Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense
2505. Retaliation—Essential Factual Elements (Gov. Code, § 12940(h))
2506. Limitation on Remedies—After-Acquired Evidence
2507. “Substantial Motivating Reason” Explained
2508. Failure to File Timely Administrative Complaint (Gov. Code, § 12960(e))—Plaintiff
Alleges Continuing Violation
2509. “Adverse Employment Action” Explained
2510. “Constructive Discharge” Explained
2511. Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)
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2512. Limitation on Remedies—Same Decision
2513. Business Judgment
2514–2519. Reserved for Future Use
2520. Quid pro quo Sexual Harassment—Essential Factual Elements
2521A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))
2521B. Work Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))
2521C. Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))
2522A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2522B. Work Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2522C. Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2523. “Harassing Conduct” Explained
2524. “Severe or Pervasive” Explained
2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))
2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment by a
Supervisor)
2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))
2528. Failure to Prevent Harassment by Nonemployee (Gov. Code, § 12940(j))
2529–2539. Reserved for Future Use
2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual Elements
(Gov. Code, § 12940(m))
2542. Disability Discrimination—“Reasonable Accommodation” Explained
2543. Disability Discrimination—“Essential Job Duties” Explained (Gov. Code, §§ 12926(f),
12940(a)(1))
2544. Disability Discrimination—Affirmative Defense—Health or Safety Risk
2545. Disability Discrimination—Affirmative Defense—Undue Hardship
2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
Interactive Process (Gov. Code, § 12940(n))
2547. Disability-Based Associational Discrimination—Essential Factual Elements
2548. Disability Discrimination—Refusal to Make Reasonable Accommodation in Housing
(Gov. Code, § 12927(c)(1))
2549. Disability Discrimination—Refusal to Permit Reasonable Modification to Housing
Unit (Gov. Code, § 12927(c)(1))
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2550–2559. Reserved for Future Use
2560. Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements (Gov. Code, § 12940(l))
2561. Religious Creed Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12940(l)(1), 12926(u))
2562–2569. Reserved for Future Use
2570. Age Discrimination—Disparate Treatment—Essential Factual Elements
2571–2599. Reserved for Future Use
VF-2500. Disparate Treatment (Gov. Code, § 12940(a))
VF-2501. Disparate Treatment—Affirmative Defense—Bona fide Occupational Qualification
(Gov. Code, § 12940(a))
VF-2502. Disparate Impact (Gov. Code, § 12940(a))
VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative Defense—Business
Necessity/Job Relatedness—Rebuttal to Business Necessity/Job Relatedness
Defense
VF-2504. Retaliation (Gov. Code, § 12940(h))
VF-2505. Quid pro quo Sexual Harassment
VF-2506A. Work Environment Harassment—Conduct Directed at Plaintiff—Employer or
Entity Defendant (Gov. Code, § 12940(j))
VF-2506B. Work Environment Harassment—Conduct Directed at Others—Employer or
Entity Defendant (Gov. Code, § 12940(j))
VF-2506C. Work Environment Harassment—Sexual Favoritism—Employer or Entity
Defendant (Gov. Code, § 12940(j))
VF-2507A. Work Environment Harassment—Conduct Directed at Plaintiff—Individual
Defendant (Gov. Code, § 12940(j))
VF-2507B. Work Environment Harassment—Conduct Directed at Others—Individual
Defendant (Gov. Code, § 12940(j))
VF-2507C. Work Environment Harassment—Sexual Favoritism—Individual Defendant
(Gov. Code, § 12940(j))
VF-2508. Disability Discrimination—Disparate Treatment
VF-2509. Disability Discrimination—Reasonable Accommodation (Gov. Code, § 12940(m))
VF-2510. Disability Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, § 12940(m))
VF-2511. Religious Creed Discrimination—Failure to Accommodate (Gov. Code,
§ 12940(l))
VF-2512. Religious Creed Discrimination—Failure to Accommodate—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12926(u), 12940(l))
VF-2513. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
Interactive Process (Gov. Code, § 12940(n))
VF-2514. Failure to Prevent Harassment, Discrimination, or Retaliation
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VF-2515. Limitation on Remedies—Same Decision
VF-2516–VF-2599. Reserved for Future Use
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SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT
2600. Violation of CFRA Rights—Essential Factual Elements
2601. Eligibility
2602. Reasonable Notice by Employee of Need for CFRA Leave
2603. “Comparable Job” Explained
2604–2609. Reserved for Future Use
2610. Affirmative Defense—No Certification From Health-Care Provider
2611. Affirmative Defense—Fitness for Duty Statement
2612. Affirmative Defense—Employment Would Have Ceased
2613–2619. Reserved for Future Use
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(k))
2621–2699. Reserved for Future Use
VF-2600. Violation of CFRA Rights
VF-2601. Violation of CFRA Rights—Affirmative Defense—Employment Would Have
Ceased
VF-2602. CFRA Rights Retaliation
VF-2603–VF-2699. Reserved for Future Use
SERIES 2700 LABOR CODE ACTIONS
2700. Nonpayment of Wages—Essential Factual Elements (Lab. Code, §§ 201, 202, 218)
2701. Nonpayment of Minimum Wage—Essential Factual Elements (Lab. Code, § 1194)
2702. Nonpayment of Overtime Compensation—Essential Factual Elements (Lab. Code,
§ 1194)
2703. Nonpayment of Overtime Compensation—Proof of Overtime Hours Worked
2704. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
2705. Independent Contractor—Affirmative Defense—Worker Was Not Hiring Entity’s
Employee (Lab. Code, § 2775)
2706–2709. Reserved for Future Use
2710. Solicitation of Employee by Misrepresentation—Essential Factual Elements (Lab.
Code, § 970)
2711. Preventing Subsequent Employment by Misrepresentation—Essential Factual Elements
(Lab. Code, § 1050)
2712–2719. Reserved for Future Use
2720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption
2721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption
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2722–2731. Reserved for Future Use
2732. Retaliatory Unfair Immigration-Related Practice—Essential Factual Elements (Lab.
Code, § 1019)
2733–2739. Reserved for Future Use
2740. Violation of Equal Pay Act—Essential Factual Elements (Lab. Code, § 1197.5)
2741. Affirmative Defense—Different Pay Justified
2742. Bona Fide Factor Other Than Sex, Race, or Ethnicity
2743. Equal Pay Act—Retaliation—Essential Factual Elements (Lab. Code, § 1197.5(k))
2744–2749. Reserved for Future Use
2750. Failure to Reimburse Employee for Necessary Expenditures or Losses—Essential
Factual Elements (Lab. Code, § 2802(a))
2751. Reserved for Future Use
2752. Tip Pool Conversion—Essential Factual Elements (Lab. Code, § 351)
2753. Failure to Pay All Vested Vacation Time—Essential Factual Elements
2754. Reporting Time Pay—Essential Factual Elements
2755–2799. Reserved for Future Use
VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
VF-2702. Nonpayment of Overtime Compensation (Lab. Code, § 1194)
VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
VF-2704. Solicitation of Employee by Misrepresentation (Lab. Code, § 970)
VF-2705. Preventing Subsequent Employment by Misrepresentation (Lab. Code, § 1050)
VF-2706–VF-2799. Reserved for Future Use
SERIES 2800 WORKERS’ COMPENSATION
2800. Employer’s Affirmative Defense—Injury Covered by Workers’ Compensation
2801. Employer’s Willful Physical Assault—Essential Factual Elements (Lab. Code,
§ 3602(b)(1))
2802. Fraudulent Concealment of Injury—Essential Factual Elements (Lab. Code,
§ 3602(b)(2))
2803. Employer’s Defective Product—Essential Factual Elements (Lab. Code, § 3602(b)(3))
2804. Removal or Noninstallation of Power Press Guards—Essential Factual Elements (Lab.
Code, § 4558)
2805. Employee Not Within Course of Employment—Employer Conduct Unrelated to
Employment
2806–2809. Reserved for Future Use
2810. Coemployee’s Affirmative Defense—Injury Covered by Workers’ Compensation
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2811. Co-Employee’s Willful and Unprovoked Physical Act of Aggression—Essential
Factual Elements (Lab. Code, § 3601(a)(1))
2812. Injury Caused by Co-Employee’s Intoxication—Essential Factual Elements (Lab.
Code, § 3601(a)(2))
2813–2899. Reserved for Future Use
VF-2800. Employer’s Willful Physical Assault (Lab. Code, § 3602(b)(1))
VF-2801. Fraudulent Concealment of Injury (Lab. Code, § 3602(b)(2))
VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3))
VF-2803. Removal or Noninstallation of Power Press Guards (Lab. Code, § 4558)
VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of Aggression (Lab. Code,
§ 3601(a)(1))
VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab. Code, § 3601(a)(2))
VF-2806–VF-2899. Reserved for Future Use
SERIES 2900 FEDERAL EMPLOYERS’ LIABILITY ACT
2900. FELA—Essential Factual Elements
2901. Negligence—Duty of Railroad
2902. Negligence—Assignment of Employees
2903. Causation—Negligence
2904. Comparative Fault
2905. Compliance With Employer’s Requests or Directions
2906–2919. Reserved for Future Use
2920. Federal Safety Appliance Act or Boiler Inspection Act—Essential Factual Elements
2921. Causation Under FSAA or BIA
2922. Statute of Limitations—Special Verdict Form or Interrogatory
2923. Borrowed Servant/Dual Employee
2924. Status as Defendant’s Employee—Subservant Company
2925. Status of Defendant as Common Carrier
2926. Scope of Employment
2927–2939. Reserved for Future Use
2940. Income Tax Effects of Award
2941. Introduction to Damages for Personal Injury
2942. Damages for Death of Employee
2943–2999. Reserved for Future Use
VF-2900. FELA—Negligence—Plaintiff’s Negligence at Issue
VF-2901. Federal Safety Appliance Act or Boiler Inspection Act
VF-2902–VF-2999. Reserved for Future Use
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SERIES 3000 CIVIL RIGHTS
3000. Violation of Federal Civil Rights—In General—Essential Factual Elements (42 U.S.C.
§ 1983)
3001. Local Government Liability—Policy or Custom—Essential Factual Elements (42
U.S.C. § 1983)
3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)
3003. Local Government Liability—Failure to Train—Essential Factual Elements (42 U.S.C.
§ 1983)
3004. Local Government Liability—Act or Ratification by Official With Final Policymaking
Authority—Essential Factual Elements (42 U.S.C. § 1983)
3005. Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983)
3006–3019. Reserved for Future Use
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual
Elements (42 U.S.C. § 1983)
3021. Unlawful Arrest by Peace Officer Without a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3022. Unreasonable Search—Search With a Warrant—Essential Factual Elements (42 U.S.C.
§ 1983)
3023. Unreasonable Search or Seizure—Search or Seizure Without a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
3024. Affirmative Defense—Search Incident to Lawful Arrest
3025. Affirmative Defense—Consent to Search
3026. Affirmative Defense—Exigent Circumstances
3027. Affirmative Defense—Emergency
3028–3039. Reserved for Future Use
3040. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Substantial Risk of
Serious Harm (42 U.S.C. § 1983)
3041. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care (42
U.S.C. § 1983)
3042. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive Force
(42 U.S.C. § 1983)
3043. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Deprivation of
Necessities (42 U.S.C. § 1983)
3044–3045. Reserved for Future Use
3046. Violation of Pretrial Detainee’s Federal Civil Rights—Fourteenth
Amendment—Medical Care and Conditions of Confinement
3047–3049. Reserved for Future Use
3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
3051. Unlawful Removal of Child From Parental Custody Without a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
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3052. Use of Fabricated Evidence—Essential Factual Elements (42 U.S.C. § 1983)
3053. Retaliation for Exercise of Free Speech Rights—Public Employee—Essential Factual
Elements (42 U.S.C. § 1983)
3054. Reserved for Future Use
3055. Rebuttal of Retaliatory Motive
3056–3059. Reserved for Future Use
3060. Unruh Civil Rights Act—Essential Factual Elements (Civ. Code, §§ 51, 52)
3061. Discrimination in Business Dealings—Essential Factual Elements (Civ. Code, § 51.5)
3062. Gender Price Discrimination—Essential Factual Elements (Civ. Code, § 51.6)
3063. Acts of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7)
3064. Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7)
3065. Sexual Harassment in Defined Relationship—Essential Factual Elements (Civ. Code,
§ 51.9)
3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1)
3067. Unruh Civil Rights Act—Damages (Civ. Code, §§ 51, 52(a))
3068. Ralph Act—Damages and Penalty (Civ. Code, §§ 51.7, 52(b))
3069. Harassment in Educational Institution (Ed. Code, § 220)
3070. Disability Discrimination—Access Barriers to Public Facility—Construction-Related
Accessibility Standards Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)
3071. Retaliation for Refusing to Authorize Disclosure of Medical Information—Essential
Factual Elements (Civ. Code, § 56.20(b))
3072–3099. Reserved for Future Use
VF-3000. Violation of Federal Civil Rights—In General (42 U.S.C. § 1983)
VF-3001. Public Entity Liability (42 U.S.C. § 1983)
VF-3002. Public Entity Liability—Failure to Train (42 U.S.C. § 1983)
VF-3003–VF-3009. Reserved for Future Use
VF-3010. Excessive Use of Force—Unreasonable Arrest or Other Seizure (42 U.S.C. § 1983)
VF-3011. Unreasonable Search—Search With a Warrant (42 U.S.C. § 1983)
VF-3012. Unreasonable Search or Seizure—Search or Seizure Without a Warrant (42 U.S.C.
§ 1983)
VF-3013. Unreasonable Search—Search Without a Warrant—Affirmative Defense—Search
Incident to Lawful Arrest (42 U.S.C. § 1983)
VF-3014–VF-3019. Reserved for Future Use
VF-3020. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive
Force (42 U.S.C. § 1983)
VF-3021. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Substantial
Risk of Serious Harm (42 U.S.C. § 1983)
VF-3022. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care
(42 U.S.C. § 1983)
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VF-3023. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Deprivation of
Necessities
VF-3024–VF-3029. Reserved for Future Use
VF-3030. Unruh Civil Rights Act (Civ. Code, §§ 51, 52(a))
VF-3031. Discrimination in Business Dealings (Civ. Code, §§ 51.5, 52(a))
VF-3032. Gender Price Discrimination (Civ. Code, § 51.6)
VF-3033. Ralph Act (Civ. Code, § 51.7)
VF-3034. Sexual Harassment in Defined Relationship (Civ. Code, § 51.9)
VF-3035. Bane Act (Civ. Code, § 52.1)
VF-3036–VF-3099. Reserved for Future Use
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT
3100. Financial Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.30)
3101. Financial Abuse—Decedent’s Pain and Suffering (Welf. & Inst. Code, § 15657.5)
3102A. Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3102B. Employer Liability for Enhanced Remedies—Employer Defendant Only (Welf. &
Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57)
3104. Neglect—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3105. Reserved for Future Use
3106. Physical Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.63)
3107. Physical Abuse—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3108. Reserved for Future Use
3109. Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06)
3110. Abduction—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)
3111. Reserved for Future Use
3112. “Dependent Adult” Explained (Welf. & Inst. Code, § 15610.23)
3113. “Recklessness” Explained
3114. “Malice” Explained
3115. “Oppression” Explained
3116. “Fraud” Explained
3117. Financial Abuse—“Undue Influence” Explained
3118–3199. Reserved for Future Use
VF-3100. Financial Abuse—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.30, 15657.5(b))
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VF-3101. Financial Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.30,
15657.5(b))
VF-3102. Neglect—Individual or Individual and Employer Defendants (Welf. & Inst. Code,
§§ 15610.57, 15657; Civ. Code, § 3294(b))
VF-3103. Neglect—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.57, 15657;
Civ. Code, § 3294(b))
VF-3104. Physical Abuse—Individual or Individual and Employer Defendants (Welf. & Inst.
Code, §§ 15610.63, 15657; Civ. Code, § 3294(b))
VF-3105. Physical Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.63,
15657; Civ. Code, § 3294(b))
VF-3106. Abduction—Individual or Individual and Employer Defendants (Welf. & Inst.
Code, §§ 15610.06, 15657.05; Civ. Code, § 3294(b))
VF-3107. Abduction—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.06,
15657.05; Civ. Code, § 3294(b))
VF-3108–VF-3199. Reserved for Future Use
Table A. Elder Abuse: Causes of Action, Remedies, and Employer Liability
SERIES 3200 SONG-BEVERLY CONSUMER WARRANTY ACT
3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of Repair
Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))
3201. Failure to Promptly Repurchase or Replace New Motor Vehicle After Reasonable
Number of Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))
3202. “Repair Opportunities” Explained
3203. Reasonable Number of Repair Opportunities—Rebuttable Presumption (Civ. Code,
§ 1793.22(b))
3204. “Substantially Impaired” Explained
3205. Failure to Begin Repairs Within Reasonable Time or to Complete Repairs Within 30
Days—Essential Factual Elements (Civ. Code, § 1793.2(b))
3206. Breach of Disclosure Obligations—Essential Factual Elements
3207–3209. Reserved for Future Use
3210. Breach of Implied Warranty of Merchantability—Essential Factual Elements
3211. Breach of Implied Warranty of Fitness for a Particular Purpose—Essential Factual
Elements
3212. Duration of Implied Warranty
3213–3219. Reserved for Future Use
3220. Affirmative Defense—Unauthorized or Unreasonable Use
3221. Affirmative Defense—Disclaimer of Implied Warranties
3222. Affirmative Defense—Statute of Limitations (Cal. U. Com. Code, § 2725)
3223–3229. Reserved for Future Use
3230. Continued Reasonable Use Permitted
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3231. Continuation of Express or Implied Warranty During Repairs (Civ. Code, § 1795.6)
3232–3239. Reserved for Future Use
3240. Reimbursement Damages—Consumer Goods (Civ. Code, §§ 1793.2(d)(1), 1794(b))
3241. Restitution From Manufacturer—New Motor Vehicle (Civ. Code, §§ 1793.2(d)(2),
1794(b))
3242. Incidental Damages
3243. Consequential Damages
3244. Civil Penalty—Willful Violation (Civ. Code, § 1794(c))
3245–3299. Reserved for Future Use
VF-3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities (Civ. Code, § 1793.2(d))
VF-3201. Consequential Damages
VF-3202. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities—Affirmative Defense—Unauthorized or Unreasonable Use
(Civ. Code, § 1793.2(d))
VF-3203. Breach of Express Warranty—New Motor Vehicle—Civil Penalty Sought
VF-3204. Breach of Implied Warranty of Merchantability
VF-3205. Breach of Implied Warranty of Merchantability—Affirmative
Defense—Disclaimer of Implied Warranties
VF-3206. Breach of Disclosure Obligations
VF-3207–VF-3299. Reserved for Future Use
SERIES 3300 UNFAIR PRACTICES ACT
3300. Locality Discrimination—Essential Factual Elements
3301. Below Cost Sales—Essential Factual Elements
3302. Loss Leader Sales—Essential Factual Elements
3303. Definition of “Cost”
3304. Presumptions Concerning Costs—Manufacturer
3305. Presumptions Concerning Costs—Distributor
3306. Methods of Allocating Costs to an Individual Product
3307–3319. Reserved for Future Use
3320. Secret Rebates—Essential Factual Elements
3321. Secret Rebates—Definition of “Secret”
3322–3329. Reserved for Future Use
3330. Affirmative Defense to Locality Discrimination Claim—Cost Justification
3331. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader
Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items
3332. Affirmative Defense to Locality Discrimination, Below Cost Sales, Loss Leader Sales,
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and Secret Rebates—Functional Classifications
3333. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader
Sales Claims—Meeting Competition
3334. Affirmative Defense to Locality Discrimination Claim—Manufacturer Meeting
Downstream Competition
3335. Affirmative Defense—“Good Faith” Explained
3336–3399. Reserved for Future Use
VF-3300. Locality Discrimination
VF-3301. Locality Discrimination Claim—Affirmative Defense—Cost Justification
VF-3302. Below Cost Sales
VF-3303. Below Cost Sales Claim—Affirmative Defense—Closed-out, Discontinued,
Damaged, or Perishable Items
VF-3304. Loss Leader Sales
VF-3305. Loss Leader Sales Claim—Affirmative Defense—Meeting Competition
VF-3306. Secret Rebates
VF-3307. Secret Rebates Claim—Affirmative Defense—Functional Classifications
VF-3308–VF-3399. Reserved for Future Use
SERIES 3400 CARTWRIGHT ACT
3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price
Fixing—Essential Factual Elements
3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Essential Factual Elements
3402. Horizontal Restraints—Dual Distributor Restraints—Essential Factual Elements
3403. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation—Essential Factual Elements
3404. Horizontal Restraints—Group Boycott—Rule of Reason—Essential Factual Elements
3405. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason—Essential
Factual Elements
3406. Horizontal and Vertical Restraints—“Agreement” Explained
3407. Horizontal and Vertical Restraints—Agreement Between Company and Its Employee
3408. Vertical Restraints—“Coercion” Explained
3409. Vertical Restraints—Termination of Reseller
3410. Vertical Restraints—Agreement Between Seller and Reseller’s Competitor
3411. Rule of Reason—Anticompetitive Versus Beneficial Effects
3412. Rule of Reason—“Market Power” Explained
3413. Rule of Reason—“Product Market” Explained
3414. Rule of Reason—“Geographic Market” Explained
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3415–3419. Reserved for Future Use
3420. Tying—Real Estate, Products, or Services—Essential Factual Elements (Bus. & Prof.
Code, § 16720)
3421. Tying—Products or Services—Essential Factual Elements (Bus. & Prof. Code,
§ 16727)
3422. Tying—“Separate Products” Explained
3423. Tying—“Economic Power” Explained
3424–3429. Reserved for Future Use
3430. “Noerr-Pennington” Doctrine
3431. Affirmative Defense—In Pari Delicto
3432–3439. Reserved for Future Use
3440. Damages
3441–3499. Reserved for Future Use
VF-3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price Fixing
VF-3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce
VF-3402. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Affirmative Defense—In Pari Delicto
VF-3403. Horizontal Restraints—Dual Distributor Restraints
VF-3404. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation
VF-3405. Horizontal Restraints—Group Boycott—Rule of Reason
VF-3406. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason
VF-3407. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason Affirmative
Defense—“Noerr-Pennington” Doctrine
VF-3408. Tying—Real Estate, Products, or Services (Bus. & Prof. Code, § 16720)
VF-3409. Tying—Products or Services (Bus. & Prof. Code, § 16727)
VF-3410–VF-3499. Reserved for Future Use
SERIES 3500 EMINENT DOMAIN
3500. Introductory Instruction
3501. “Fair Market Value” Explained
3502. “Highest and Best Use” Explained
3503. Change in Zoning or Land Use Restriction
3504. Project Enhanced Value
3505. Information Discovered after Date of Valuation
3506. Effect of Improvements
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3507. Personal Property and Inventory
3508. Bonus Value of Leasehold Interest
3509A. Precondemnation Damages—Unreasonable Delay (Klopping Damages)
3509B. Precondemnation Damages—Public Entity’s Authorized Entry to Investigate
Property’s Suitability (Code Civ. Proc., § 1245.060)
3510. Value of Easement
3511A. Severance Damages to Remainder (Code Civ. Proc., §§ 1263.410, 1263.420(a))
3511B. Damage to Remainder During Construction (Code Civ. Proc., § 1263.420(b))
3512. Severance Damages—Offset for Benefits
3513. Goodwill
3514. Burden of Proof
3515. Valuation Testimony
3516. View
3517. Comparable Sales (Evid. Code, § 816)
3518–3599. Reserved for Future Use
VF-3500. Fair Market Value Plus Goodwill
VF-3501. Fair Market Value Plus Severance Damages
VF-3502. Fair Market Value Plus Loss of Inventory/Personal Property
VF-3503–VF-3599. Reserved for Future Use
SERIES 3600 CONSPIRACY
3600. Conspiracy—Essential Factual Elements
3601. Ongoing Conspiracy
3602. Affirmative Defense—Agent and Employee Immunity Rule
3603–3609. Reserved for Future Use
3610. Aiding and Abetting Tort—Essential Factual Elements
3611–3699. Reserved for Future Use
SERIES 3700 VICARIOUS RESPONSIBILITY
3700. Introduction to Vicarious Responsibility
3701. Tort Liability Asserted Against Principal—Essential Factual Elements
3702. Affirmative Defense—Comparative Fault of Plaintiff’s Agent
3703. Legal Relationship Not Disputed
3704. Existence of “Employee” Status Disputed
3705. Existence of “Agency” Relationship Disputed
3706. Special Employment—Lending Employer Denies Responsibility for Worker’s Acts
3707. Special Employment—Joint Responsibility
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3708. Peculiar-Risk Doctrine
3709. Ostensible Agent
3710. Ratification
3711. Partnerships
3712. Joint Ventures
3713. Nondelegable Duty
3714. Ostensible Agency—Physician-Hospital Relationship
3715–3719. Reserved for Future Use
3720. Scope of Employment
3721. Scope of Employment—Peace Officer’s Misuse of Authority
3722. Scope of Employment—Unauthorized Acts
3723. Substantial Deviation
3724. Social or Recreational Activities
3725. Going-and-Coming Rule—Vehicle-Use Exception
3726. Going-and-Coming Rule—Business-Errand Exception
3727. Going-and-Coming Rule—Compensated Travel Time Exception
3728–3799. Reserved for Future Use
VF-3700. Negligence—Vicarious Liability
VF-3701–VF-3799. Reserved for Future Use
SERIES 3800 EQUITABLE INDEMNITY
3800. Comparative Fault Between and Among Tortfeasors
3801. Implied Contractual Indemnity
3802–3899. Reserved for Future Use
SERIES 3900 DAMAGES
3900. Introduction to Tort Damages—Liability Contested
3901. Introduction to Tort Damages—Liability Established
3902. Economic and Noneconomic Damages
3903. Items of Economic Damage
3903A. Medical Expenses—Past and Future (Economic Damage)
3903B. Medical Monitoring—Toxic Exposure (Economic Damage)
3903C. Past and Future Lost Earnings (Economic Damage)
3903D. Lost Earning Capacity (Economic Damage)
3903E. Loss of Ability to Provide Household Services (Economic Damage)
3903F. Damage to Real Property (Economic Damage)
3903G. Loss of Use of Real Property (Economic Damage)
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3903H. Damage to Annual Crop (Economic Damage)
3903I. Damage to Perennial Crop (Economic Damage)
3903J. Damage to Personal Property (Economic Damage)
3903K. Loss or Destruction of Personal Property (Economic Damage)
3903L. Damage to Personal Property Having Special Value (Civ. Code, § 3355) (Economic
Damage)
3903M. Loss of Use of Personal Property (Economic Damage)
3903N. Lost Profits (Economic Damage)
3903O. Injury to Pet—Costs of Treatment (Economic Damage)
3903P. Damages From Employer for Wrongful Discharge (Economic Damage)
3903Q. Survival Damages (Economic Damage) (Code Civ. Proc., § 377.34)
3904A. Present Cash Value
3904B. Use of Present-Value Tables
3905. Items of Noneconomic Damage
3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)
3906. Lost Earnings and Lost Earning Capacity—Jurors Not to Reduce Damages on Basis of
Race, Ethnicity, or Gender (Economic Damages)
3907–3919. Reserved for Future Use
3920. Loss of Consortium (Noneconomic Damage)
3921. Wrongful Death (Death of an Adult)
3922. Wrongful Death (Parents’ Recovery for Death of a Minor Child)
3923. Public Entities—Collateral Source Payments (Gov. Code, § 985)
3924. No Punitive Damages
3925. Arguments of Counsel Not Evidence of Damages
3926. Settlement Deduction
3927. Aggravation of Preexisting Condition or Disability
3928. Unusually Susceptible Plaintiff
3929. Subsequent Medical Treatment or Aid
3930. Mitigation of Damages (Personal Injury)
3931. Mitigation of Damages (Property Damage)
3932. Life Expectancy
3933. Damages From Multiple Defendants
3934. Damages on Multiple Legal Theories
3935. Prejudgment Interest (Civ. Code, § 3288)
3936–3939. Reserved for Future Use
3940. Punitive Damages—Individual Defendant—Trial Not Bifurcated
3941. Punitive Damages—Individual Defendant—Bifurcated Trial (First Phase)
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3942. Punitive Damages—Individual Defendant—Bifurcated Trial (Second Phase)
3943. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or
Employee—Trial Not Bifurcated
3944. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or
Employee—Bifurcated Trial (First Phase)
3945. Punitive Damages—Entity Defendant—Trial Not Bifurcated
3946. Punitive Damages—Entity Defendant—Bifurcated Trial (First Phase)
3947. Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated
3948. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based
on Acts of Named Individual)—Bifurcated Trial (First Phase)
3949. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based
on Acts of Named Individual)—Bifurcated Trial (Second Phase)
3950–3959. Reserved for Future Use
3960. Comparative Fault of Plaintiff—General Verdict
3961. Duty to Mitigate Damages for Past Lost Earnings
3962. Duty to Mitigate Damages for Future Lost Earnings
3963. Affirmative Defense—Employee’s Duty to Mitigate Damages
3964. Jurors Not to Consider Attorney Fees and Court Costs
3965. No Deduction for Workers’ Compensation Benefits Paid
3966–3999. Reserved for Future Use
VF-3900. Punitive Damages
VF-3901. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent
or Employee
VF-3902. Punitive Damages—Entity Defendant
VF-3903. Punitive Damages—Entity Defendant—Ratification
VF-3904. Punitive Damages—Entity Defendant—Authorization
VF-3905. Damages for Wrongful Death (Death of an Adult)
VF-3906. Damages for Wrongful Death (Parents’ Recovery for Death of a Minor Child)
VF-3907. Damages for Loss of Consortium (Noneconomic Damage)
VF-3908–VF-3919. Reserved for Future Use
VF-3920. Damages on Multiple Legal Theories
VF-3921–VF-3999. Reserved for Future Use
SERIES 4000 LANTERMAN-PETRIS-SHORT ACT
4000. Conservatorship—Essential Factual Elements
4001. “Mental Disorder” Explained
4002. “Gravely Disabled” Explained
4003. “Gravely Disabled” Minor Explained
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4004. Issues Not to Be Considered
4005. Obligation to Prove—Reasonable Doubt
4006. Sufficiency of Indirect Circumstantial Evidence
4007. Third Party Assistance
4008. Third Party Assistance to Minor
4009. Physical Restraint
4010. Limiting Instruction—Expert Testimony
4011. History of Disorder Relevant to the Determination of Grave Disability
4012. Concluding Instruction
4013. Disqualification From Voting
4014–4099. Reserved for Future Use
VF-4000. Conservatorship—Verdict Form
VF-4001–VF-4099. Reserved for Future Use
SERIES 4100 BREACH OF FIDUCIARY DUTY
4100. “Fiduciary Duty” Explained
4101. Failure to Use Reasonable Care—Essential Factual Elements
4102. Duty of Undivided Loyalty—Essential Factual Elements
4103. Duty of Confidentiality—Essential Factual Elements
4104. Duties of Escrow Holder
4105. Duties of Stockbroker—Speculative Securities
4106. Breach of Fiduciary Duty by Attorney—Essential Factual Elements
4107. Duty of Disclosure by Real Estate Broker to Client
4108. Failure of Seller’s Real Estate Broker to Conduct Reasonable Inspection—Essential
Factual Elements (Civ. Code, § 2079)
4109. Duty of Disclosure by Seller’s Real Estate Broker to Buyer
4110. Breach of Duty by Real Estate Seller’s Agent—Inaccurate Information in Multiple
Listing Service—Essential Factual Elements (Civ. Code, § 1088)
4111. Constructive Fraud (Civ. Code, § 1573)
4112–4119. Reserved for Future Use
4120. Affirmative Defense—Statute of Limitations
4121–4199. Reserved for Future Use
SERIES 4200 UNIFORM VOIDABLE TRANSACTIONS ACT
4200. Actual Intent to Hinder, Delay, or Defraud a Creditor—Essential Factual Elements
(Civ. Code, § 3439.04(a)(1))
4201. Factors to Consider in Determining Actual Intent to Hinder, Delay, or Defraud (Civ.
Code, § 3439.04(b))
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4202. Constructive Fraudulent Transfer—No Reasonably Equivalent Value
Received—Essential Factual Elements (Civ. Code, § 3439.04(a)(2))
4203. Constructive Fraudulent Transfer—Insolvency—Essential Factual Elements (Civ.
Code, § 3439.05)
4204. “Transfer” Explained
4205. “Insolvency” Explained
4206. Presumption of Insolvency
4207. Affirmative Defense—Good Faith (Civ. Code, § 3439.08(a), (f)(1))
4208. Affirmative Defense—Statute of Limitations—Actual and Constructive Fraud (Civ.
Code, § 3439.09(a), (b))
4209–4299. Reserved for Future Use
VF-4200. Actual Intent to Hinder, Delay, or Defraud Creditor—Affirmative Defense—Good
Faith
VF-4201. Constructive Fraudulent Transfer—No Reasonably Equivalent Value Received
VF-4202. Constructive Fraudulent Transfer—Insolvency
VF-4203–VF-4299. Reserved for Future Use
SERIES 4300 UNLAWFUL DETAINER
4300. Introductory Instruction
4301. Expiration of Fixed-Term Tenancy—Essential Factual Elements
4302. Termination for Failure to Pay Rent—Essential Factual Elements
4303. Sufficiency and Service of Notice of Termination for Failure to Pay Rent
4304. Termination for Violation of Terms of Lease/Agreement—Essential Factual Elements
4305. Sufficiency and Service of Notice of Termination for Violation of Terms of Agreement
4306. Termination of Month-to-Month Tenancy—Essential Factual Elements
4307. Sufficiency and Service of Notice of Termination of Month-to-Month Tenancy
4308. Termination for Nuisance or Unlawful Use—Essential Factual Elements (Code Civ.
Proc., § 1161(4))
4309. Sufficiency and Service of Notice of Termination for Nuisance or Unlawful Use
4310–4319. Reserved for Future Use
4320. Affirmative Defense—Implied Warranty of Habitability
4321. Affirmative Defense—Retaliatory Eviction—Tenant’s Complaint (Civ. Code,
§ 1942.5)
4322. Affirmative Defense—Retaliatory Eviction—Engaging in Legally Protected Activity
(Civ. Code, § 1942.5(d))
4323. Affirmative Defense—Discriminatory Eviction (Unruh Act)
4324. Affirmative Defense—Waiver by Acceptance of Rent
4325. Affirmative Defense—Failure to Comply With Rent Control Ordinance/Tenant
Protection Act
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4326. Affirmative Defense—Repair and Deduct
4327. Affirmative Defense—Landlord’s Refusal of Rent
4328. Affirmative Defense—Tenant Was Victim of Domestic Violence, Sexual Assault,
Stalking, Elder/Dependent Adult Abuse, or Human Trafficking (Code Civ. Proc.,
§ 1161.3)
4329. Affirmative Defense—Failure to Provide Reasonable Accommodation
4330. Denial of Requested Accommodation
4331–4339. Reserved for Future Use
4340. Damages for Reasonable Rental Value
4341. Statutory Damages on Showing of Malice (Code Civ. Proc., § 1174(b))
4342. Reduced Rent for Breach of Habitability
4343–4399. Reserved for Future Use
VF-4300. Termination Due to Failure to Pay Rent
VF-4301. Termination Due to Failure to Pay Rent—Affirmative Defense—Breach of Implied
Warranty of Habitability
VF-4302. Termination Due to Violation of Terms of Lease/Agreement
VF-4303–VF-4399. Reserved for Future Use
SERIES 4400 TRADE SECRETS
4400. Misappropriation of Trade Secrets—Introduction
4401. Misappropriation of Trade Secrets—Essential Factual Elements
4402. “Trade Secret” Defined
4403. Secrecy Requirement
4404. Reasonable Efforts to Protect Secrecy
4405. Misappropriation by Acquisition
4406. Misappropriation by Disclosure
4407. Misappropriation by Use
4408. Improper Means of Acquiring Trade Secret
4409. Remedies for Misappropriation of Trade Secret
4410. Unjust Enrichment
4411. Punitive Damages for Willful and Malicious Misappropriation
4412. “Independent Economic Value” Explained
4413–4419. Reserved for Future Use
4420. Affirmative Defense—Information Was Readily Ascertainable by Proper Means
4421. Affirmative Defense—Statute of Limitations—Three-Year Limit (Civ. Code, § 3426.6)
4422–4499. Reserved for Future Use
VF-4400. Misappropriation of Trade Secrets
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VF-4401–VF-4499. Reserved for Future Use
SERIES 4500 CONSTRUCTION LAW
4500. Breach of Implied Warranty of Correctness of Plans and Specifications—Essential
Factual Elements
4501. Owner’s Liability for Failing to Disclose Important Information Regarding a
Construction Project—Essential Factual Elements
4502. Breach of Implied Covenant to Provide Necessary Items Within Owner’s
Control—Essential Factual Elements
4503–4509. Reserved for Future Use
4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Essential Factual Elements
4511. Affirmative Defense—Contractor Followed Plans and Specifications
4512–4519. Reserved for Future Use
4520. Contractor’s Claim for Changed or Extra Work
4521. Owner’s Claim That Contract Procedures Regarding Change Orders Were Not
Followed
4522. Waiver of Written Approval or Notice Requirements for Changed or Additional Work
4523. Contractor’s Claim for Additional Compensation—Abandonment of Contract
4524. Contractor’s Claim for Compensation Due Under Contract—Substantial Performance
4525–4529. Reserved for Future Use
4530. Owner’s Damages for Breach of Construction Contract—Work Does Not Conform to
Contract
4531. Owner’s Damages for Breach of Construction Contract—Failure to Complete Work
4532. Owner’s Damages for Breach of Construction Contract—Liquidated Damages Under
Contract for Delay
4533–4539. Reserved for Future Use
4540. Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra
Work
4541. Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra
Work—Total Cost Recovery
4542. Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit
Recovery
4543. Contractor’s Damages for Breach of Construction Contract—Owner-Caused Delay or
Acceleration
4544. Contractor’s Damages for Breach of Construction Contract—Inefficiency Because of
Owner Conduct
4545–4549. Reserved for Future Use
4550. Affirmative Defense—Statute of Limitations—Patent Construction Defect (Code Civ.
Proc., § 337.1)
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4551. Affirmative Defense—Statute of Limitations—Latent Construction Defect (Code Civ.
Proc., § 337.15)
4552. Affirmative Defense—Work Completed and Accepted—Patent Defect
4553–4559. Reserved for Future Use
4560. Recovery of Payments to Unlicensed Contractor—Essential Factual Elements (Bus. &
Prof. Code, § 7031(b))
4561. Damages—All Payments Made to Unlicensed Contractor
4562. Payment for Construction Services Rendered—Essential Factual Elements (Bus. &
Prof. Code, § 7031(a), (e))
4563–4569. Reserved for Future Use
4570. Right to Repair Act—Construction Defects—Essential Factual Elements (Civ. Code,
§ 896)
4571. Right to Repair Act—Damages (Civ. Code, § 944)
4572. Right to Repair Act—Affirmative Defense—Act of Nature (Civ. Code, § 945.5(a))
4573. Right to Repair Act—Affirmative Defense—Unreasonable Failure to Minimize or
Prevent Damage (Civ. Code, § 945.5(b))
4574. Right to Repair Act—Affirmative Defense—Plaintiff’s Subsequent Acts or Omissions
(Civ. Code, § 945.5(d))
4575. Right to Repair Act—Affirmative Defense—Failure to Follow Recommendations or to
Maintain (Civ. Code, § 945.5(c))
4576–4599. Reserved for Future Use
VF-4500. Owner’s Failure to Disclose Important Information Regarding Construction Project
VF-4501–VF-4509. Reserved for Future Use
VF-4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Affirmative Defense—Contractor Followed Plans and Specifications
VF-4511–VF-4519. Reserved for Future Use
VF-4520. Contractor’s Claim for Changed or Extra Work—Owner’s Response That Contract
Procedures Not Followed—Contractor’s Claim of Waiver
VF-4521–VF-4599. Reserved for Future Use
SERIES 4600 WHISTLEBLOWER PROTECTION
4600. False Claims Act: Whistleblower Protection—Essential Factual Elements (Gov. Code,
§ 12653)
4601. Protected Disclosure by State Employee—California Whistleblower Protection
Act—Essential Factual Elements (Gov. Code, § 8547.8(c))
4602. Affirmative Defense—Same Decision (Gov. Code, § 8547.8(e))
4603. Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5)
4604. Affirmative Defense—Same Decision (Lab. Code, § 1102.6)
4605. Whistleblower Protection—Health or Safety Complaint—Essential Factual Elements
(Lab. Code, § 6310)
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4606. Whistleblower Protection—Unsafe Patient Care and Conditions—Essential Factual
Elements (Health & Saf. Code, § 1278.5)
4607–4699. Reserved for Future Use
VF-4600. False Claims Act: Whistleblower Protection (Gov. Code, § 12653)
VF-4601. Protected Disclosure by State Employee—California Whistleblower Protection
Act—Affirmative Defense—Same Decision (Gov. Code, § 8547.8(c))
VF-4602. Whistleblower Protection—Affirmative Defense of Same Decision (Lab. Code,
§§ 1102.5, 1102.6)
VF-4603–VF-4699. Reserved for Future Use
SERIES 4700 CONSUMERS LEGAL REMEDIES ACT
4700. Consumers Legal Remedies Act—Essential Factual Elements (Civ. Code, § 1770)
4701. Consumers Legal Remedies Act—Notice Requirement for Damages (Civ. Code,
§ 1782)
4702. Consumers Legal Remedies Act—Statutory Damages—Senior or Disabled Plaintiff
(Civ. Code, § 1780(b))
4703–4709. Reserved for Future Use
4710. Consumers Legal Remedies Act—Affirmative Defense—Bona Fide Error and
Correction (Civ. Code, § 1784)
4711–4799. Reserved for Future Use
SERIES 4800 CALIFORNIA FALSE CLAIMS ACT
4800. False Claims Act—Essential Factual Elements (Gov. Code, § 12651)
4801. Implied Certification of Compliance With All Contractual Provisions—Essential
Factual Elements
4802-4899. Reserved for Future Use
SERIES 4900 REAL PROPERTY LAW
4900. Adverse Possession
4901. Prescriptive Easement
4902. Interference With Secondary Easement
4903-4909. Reserved for Future Use
4910. Violation of Homeowner Bill of Rights—Essential Factual Elements (Civ. Code,
§ 2924.12(b))
4911-4919. Reserved for Future Use
4920. Wrongful Foreclosure—Essential Factual Elements
4921. Wrongful Foreclosure—Tender Excused
4922-4999. Reserved for Future Use
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Volume 2 Table of Contents
SERIES 5000 CONCLUDING INSTRUCTIONS
5000. Duties of the Judge and Jury
5001. Insurance
5002. Evidence
5003. Witnesses
5004. Service Provider for Juror With Disability
5005. Multiple Parties
5006. Nonperson Party
5007. Removal of Claims or Parties and Remaining Claims and Parties
5008. Duty to Abide by Translation Provided in Court
5009. Predeliberation Instructions
5010. Taking Notes During the Trial
5011. Reading Back of Trial Testimony in Jury Room
5012. Introduction to Special Verdict Form
5013. Deadlocked Jury Admonition
5014. Substitution of Alternate Juror
5015. Instruction to Alternate Jurors on Submission of Case to Jury
5016. Judge’s Commenting on Evidence
5017. Polling the Jury
5018. Audio or Video Recording and Transcription
5019. Questions From Jurors
5020. Demonstrative Evidence
5021. Electronic Evidence
5022. Introduction to General Verdict Form
5023–5089. Reserved for Future Use
5090. Final Instruction on Discharge of Jury
5091–5099. Reserved for Future Use
VF-5000. General Verdict Form—Single Plaintiff—Single Defendant—Single Cause of
Action
VF-5001. General Verdict Form—Single Plaintiff—Single Defendant—Multiple Causes of
Action
VF-5002–VF-5099. Reserved for Future Use
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Guide for Using Judicial Council of
California Civil Jury Instructions
Ease of understanding by jurors, without sacrificing accuracy, is the primary goal of
these Judicial Council instructions. A secondary goal is ease of use by lawyers. This
guide provides an introduction to the instructions, explaining conventions and features
that will assist in the use of both the print and electronic editions.
Jury Instructions as a Statement of the Law: While jury instructions are not a
primary source of the law, they are a statement or compendium of the law, a secondary
source. That the instructions are in plain English does not change their status as an
accurate statement of the law.
Instructions Approved by Rule of Court: Rule 2.1050 of the California Rules of
Court provides: “The California jury instructions approved by the Judicial Council are
the official instructions for use in the state of California . . . The Judicial Council
endorses these instructions for use and makes every effort to ensure that they accurately
state existing law . . . Use of the Judicial Council instructions is strongly encouraged.”
Absence of Instruction: The fact that there is no CACI instruction on a claim, defense,
rule, or other situation does not indicate that no instruction would ever be appropriate.
Using the Instructions
Revision Dates: The original date of approval and all revision dates of each instruction
are presented. An instruction is considered as having been revised if there is a
nontechnical change to the title, instruction text, or Directions for Use. Additions or
changes to the Sources and Authority and Secondary Sources do not generate a new
revision date.
Directions for Use: The instructions contain Directions for Use. The directions alert
the user to special circumstances involving the instruction and may include references
to other instructions that should or should not be used. In some cases the directions
include suggestions for modifications or for additional instructions that may be
required. Before using any instruction, reference should be made to the Directions for
Use.
Sources and Authority: Each instruction sets forth the primary sources that present the
basic legal principles that support the instruction. Applicable statutes are listed along
with quoted material from cases that pertain to the subject matter of the instruction.
Authorities are included to support the text of the instruction, the burden of proof, and
matters of law and of fact.
Cases included in the Sources and Authority should be treated as a digest of relevant
citations. They are not meant to provide a complete analysis of the legal subject of the
instruction. Nor does the inclusion of an excerpt necessarily mean that the committee
views it as binding authority. Rather, they provide a starting point for further legal
1
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USER GUIDE
research on the subject. The standard is that the committee believes that the excerpt
would be of interest and relevant to CACI users.
Secondary Sources are also provided for treatises and practice guides from a variety of
legal publishers.
Instructions for the Common Case: These instructions were drafted for the common
type of case and can be used as drafted in most cases. When unique or complex
circumstances prevail, users will have to adapt the instructions to the particular case.
Multiple Parties: Because jurors more easily understand instructions that refer to
parties by name rather than by legal terms such as “plaintiff” and “defendant,” the
instructions provide for insertion of names. For simplicity of presentation, the
instructions use single party plaintiffs and defendants as examples. If a case involves
multiple parties or cross-complaints, the user will usually need to modify the parties in
the instructions. Rather than naming a number of parties in each place calling for
names, the user may consider putting the names of all applicable parties in the
beginning and thereafter identifying them as “plaintiffs,” “defendants,” “cross-
complaints,” etc. Different instructions often apply to different parties. The user should
only include the parties to whom each instruction applies.
Personal Pronouns: Many CACI instructions include an option to insert the personal
pronouns “he/she/nonbinary pronoun,” “his/her/nonbinary pronoun,” or “him/her/
nonbinary pronoun.” It is the policy of the State of California that intersex, transgender,
and nonbinary people are entitled to full legal recognition and equal treatment under the
law. In accordance with this policy, attorneys and courts should take affirmative steps
to ensure that they are using individuals’ correct personal pronouns. Although the
advisory committee acknowledges a trend for the use of “they,” “their,” and “them” as
singular personal pronouns, the committee also recognizes these same pronouns have
plural denotations with the potential to confuse jurors. For clarity in the jury
instructions, the committee recommends using an individual’s name rather than a
personal nonbinary pronoun (such as “they”) if the pronoun’s use could result in
confusion.
Reference to “Harm” in Place of “Damage” or “Injury”: In many of the
instructions, the word harm is used in place of damage, injury, or other similar words.
The drafters of the instructions felt that this word was clearer to jurors.
Substantial Factor: The instructions frequently use the term “substantial factor” to
state the element of causation, rather than referring to “cause” and then defining that
term in a separate instruction as a “substantial factor.” An instruction that defines
“substantial factor” is located in the Negligence series. The use of the instruction is not
intended to be limited to cases involving negligence.
Listing of Elements and Factors: For ease of understanding, elements of causes of
action or affirmative defenses are listed by numbers (e.g., 1, 2, 3) and factors to be
considered by jurors in their deliberations are listed by letters (e.g., a, b, c).
Uncontested Elements: Although some elements may be the subject of a stipulation
that the element has been proven, the instruction should set forth all of the elements and
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USER GUIDE
indicate those that are deemed to have been proven by stipulation of the parties.
Omitting uncontested elements may leave the jury with an incomplete understanding of
the cause of action and the plaintiff’s full burden of proof. It is better to include all the
elements and then indicate the parties have agreed that one or more of them has been
established and need not be decided by the jury. One possible approach is as follows:
To establish this claim, [plaintiff] must prove all of the following:
1. That [plaintiff] and [defendant] entered into a contract (which is not disputed
in this case);
2. That [plaintiff] did all, or substantially all, of the significant things that the
contract required it to do;
3. That all conditions required for [defendant]’s performance had occurred (which
is also not disputed in this case).
Irrelevant Factors: Factors are matters that the jury might consider in determining
whether a party’s burden of proof on the elements has been met. A list of possible
factors may include some that have no relevance to the case and on which no evidence
was presented. These irrelevant factors may safely be omitted from the instruction.
Burdens of Proof: The applicable burden of proof is included within each instruction
explaining a cause of action or affirmative defense. The drafters felt that placing the
burden of proof in that position provided a clearer explanation for the jurors.
Affirmative Defenses: For ease of understanding by users, all instructions explaining
affirmative defenses use the term “affirmative defense” in the title.
Titles and Definitions
Titles of Instructions: Titles to instructions are directed to lawyers and sometimes use
words and phrases not used in the instructions themselves. Since the title is not a part
of the instruction, the titles may be removed before presentation to the jury.
Definitions of Legal Terms: The instructions avoid separate definitions of legal terms
whenever possible. Instead, definitions have been incorporated into the language of the
instructions. In some instances (e.g., specific statutory definitions) it was not possible
to avoid providing a separate definition.
Evidence
Circumstantial Evidence: The words “indirect evidence” have been substituted for the
expression “circumstantial evidence.” In response to public comment on the subject,
however, the drafters added a sentence indicating that indirect evidence is sometimes
known as circumstantial evidence.
Preponderance of the Evidence: To simplify the instructions’ language, the drafters
avoided the phrase preponderance of the evidence and the verb preponderate. The
instructions substitute in place of that phrase reference to evidence that is “more likely
to be true than not true.”
Using Verdict Forms
Verdict Forms are Models: A large selection of special verdict forms accompanies the
instructions. Users of the forms must bear in mind that these are models only. Rarely
can they be used without modifications to fit the circumstances of a particular case.
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USER GUIDE
Purpose of Verdict Forms: The special verdict forms generally track the elements of
the applicable cause of action. Their purpose is to obtain the jury’s finding on the
elements defined in the instructions. “The special verdict must present the conclusions
of fact as established by the evidence, and not the evidence to prove them; and those
conclusions of fact must be so presented as that nothing shall remain to the court but
to draw from them conclusions of law.” (Code Civ. Proc., § 624; see Trujillo v. North
County Transit Dist. (1998) 63 Cal.App.4th 280, 285 [73 Cal.Rptr.2d 596].) Modifi-
cations made to the instructions in particular cases ordinarily will require corresponding
modifications to the special verdict form.
Multiple Parties: The verdict forms have been written to address one plaintiff against
one defendant. In nearly all cases involving multiple parties, the issues and the evidence
will be such that the jury could reach different results for different parties. The liability
of each defendant should always be evaluated individually, and the damages to be
awarded to each plaintiff must usually be determined separately. Therefore, separate
special verdicts should usually be prepared for each plaintiff with regard to each
defendant. In some cases, the facts may be sufficiently simple to include multiple
parties in the same verdict form, but if this is done, the transitional language from one
question to another must be modified to account for all the different possibilities of yes
and no answers for the various parties.
Multiple Causes of Action: The verdict forms are self-contained for a particular cause
of action. When multiple causes of action are being submitted to the jury, it may be
better to combine the verdict forms and eliminate duplication.
Modifications as Required by Circumstances: The verdict forms must be modified as
required by the circumstances. It is necessary to determine whether any lesser or greater
specificity is appropriate. The question in special verdict forms for plaintiff’s damages
provides an illustration. Consistent with the jury instructions, the question asks the jury
to determine separately the amounts of past and future economic loss, and of past and
future noneconomic loss. These four choices are included in brackets. In some cases it
may be unnecessary to distinguish between past and future losses. In others there may
be no claim for either economic or noneconomic damages. In some cases the court may
wish to eliminate the terms “economic loss” and “noneconomic loss” from both the
instructions and the verdict form. Without defining those terms, the court may prefer
simply to ask the jury to determine the appropriate amounts for the various components
of the losses without categorizing them for the jury as economic or noneconomic. The
court can fix liability as joint or several under Civil Code sections 1431 and 1431.2,
based on the verdicts. A more itemized breakdown of damages may be appropriate if
the court is concerned about the sufficiency of the evidence supporting a particular
component of damages. Appropriate special verdicts are preferred when periodic
payment schedules may be required by Code of Civil Procedure section 667.7.
(Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 148–150 [266 Cal. Rptr. 671].)
November 2021
Hon. Martin J. Tangeman
Chair, Judicial Council Advisory Committee on Civil Jury Instructions
4
Copyright Judicial Council of California
PRETRIAL
100. Preliminary Admonitions
101. Overview of Trial
102. Taking Notes During the Trial
103. Multiple Parties
104. Nonperson Party
105. Insurance
106. Evidence
107. Witnesses
108. Duty to Abide by Translation Provided in Court
109. Removal of Claims or Parties
110. Service Provider for Juror With Disability
111. Instruction to Alternate Jurors
112. Questions From Jurors
113. Bias
114. Bench Conferences and Conferences in Chambers
115. “Class Action” Defined (Plaintiff Class)
116. Why Electronic Communications and Research Are Prohibited
117. Wealth of Parties
118. Personal Pronouns
119–199. Reserved for Future Use
5
Copyright Judicial Council of California
100. Preliminary Admonitions
You have now been sworn as jurors in this case. I want to impress on
you the seriousness and importance of serving on a jury. Trial by jury is
a fundamental right in California. The parties have a right to a jury that
is selected fairly, that comes to the case without bias, and that will
attempt to reach a verdict based on the evidence presented. Before we
begin, I need to explain how you must conduct yourselves during the
trial.
Do not allow anything that happens outside this courtroom to affect your
decision. During the trial do not talk about this case or the people
involved in it with anyone, including family and persons living in your
household, friends and co-workers, spiritual leaders, advisors, or
therapists. You may say you are on a jury and how long the trial may
take, but that is all. You must not even talk about the case with the
other jurors until after I tell you that it is time for you to decide the
case.
This prohibition is not limited to face-to-face conversations. It also
extends to all forms of electronic communications. Do not use any
electronic device or media, such as a cell phone or smart phone, PDA,
computer, the Internet, any Internet service, any text or instant-
messaging service, any Internet chat room, blog, or website, including
social networking websites or online diaries, to send or receive any
information to or from anyone about this case or your experience as a
juror until after you have been discharged from your jury duty.
During the trial you must not listen to anyone else talk about the case or
the people involved in the case. You must avoid any contact with the
parties, the lawyers, the witnesses, and anyone else who may have a
connection to the case. If anyone tries to talk to you about this case, tell
that person that you cannot discuss it because you are a juror. If that
person keeps talking to you, simply walk away and report the incident to
the court [attendant/bailiff] as soon as you can.
After the trial is over and I have released you from jury duty, you may
discuss the case with anyone, but you are not required to do so.
During the trial, do not read, listen to, or watch any news reports about
this case. [I have no information that there will be news reports
concerning this case.] This prohibition extends to the use of the Internet
in any way, including reading any blog about the case or about anyone
involved with it. If you receive any information about this case from any
source outside of the courtroom, promptly report it to the court
[attendant/bailiff]. It is important that all jurors see and hear the same
evidence at the same time.
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Do not do any research on your own or as a group. Do not use
dictionaries, the Internet, or other reference materials. Do not investigate
the case or conduct any experiments. Do not contact anyone to assist
you, such as a family accountant, doctor, or lawyer. Do not visit or view
the scene of any event involved in this case or use any Internet maps or
mapping programs or any other program or device to search for or to
view any place discussed in the testimony. If you happen to pass by the
scene, do not stop or investigate. If you do need to view the scene during
the trial, you will be taken there as a group under proper supervision.
[If you violate any of these prohibitions on communications and
research, including prohibitions on electronic communications and
research, you may be held in contempt of court or face other sanctions.
That means that you may have to serve time in jail, pay a fine, or face
other punishment for that violation.]
It is important that you keep an open mind throughout this trial.
Evidence can only be presented a piece at a time. Do not form or express
an opinion about this case while the trial is going on. You must not
decide on a verdict until after you have heard all the evidence and have
discussed it thoroughly with your fellow jurors in your deliberations.
Do not concern yourselves with the reasons for the rulings I will make
during the course of the trial. Do not guess what I may think your
verdict should be from anything I might say or do.
When you begin your deliberations, you may discuss the case only in the
jury room and only when all the jurors are present.
You must decide what the facts are in this case. Do not let bias,
sympathy, prejudice, or public opinion influence your verdict.
At the end of the trial, I will explain the law that you must follow to
reach your verdict. You must follow the law as I explain it to you, even if
you do not agree with the law.
New September 2003; Revised April 2004, October 2004, February 2005, June
2005, December 2007, December 2009, December 2011, December 2012, May 2020
Directions for Use
This instruction should be given at the outset of every case, even as early as when
the jury panel enters the courtroom (without the first sentence).
If the jury is allowed to separate, Code of Civil Procedure section 611 requires the
judge to admonish the jury that “it is their duty not to converse with, or suffer
themselves to be addressed by any other person, on any subject of the trial, and that
it is their duty not to form or express an opinion thereon until the case is finally
submitted to them.”
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Sources and Authority
• Constitutional Right to Jury Trial. Article I, section 16 of the California
Constitution.
• Instructing the Jury. Code of Civil Procedure section 608.
• Jury as Trier of Fact. Evidence Code section 312.
• Admonishments to Jurors. Code of Civil Procedure section 611.
• Contempt of Court for Juror Misconduct. Code of Civil Procedure section
1209(a)(6).
• Under Code of Civil Procedure section 611, jurors may not “form or express an
opinion” prior to deliberations. (See also City of Pleasant Hill v. First Baptist
Church of Pleasant Hill (1969) 1 Cal.App.3d 384, 429 [82 Cal.Rptr. 1]. It is
misconduct for a juror to prejudge the case. (Deward v. Clough (1966) 245
Cal.App.2d 439, 443–444 [54 Cal.Rptr. 68].)
• Jurors must not undertake independent investigations of the facts in a case.
(Kritzer v. Citron (1950) 101 Cal.App.2d 33, 36 [224 P.2d 808]; Walter v.
Ayvazian (1933) 134 Cal.App. 360, 365 [25 P.2d 526].)
• Jurors are required to avoid discussions with parties, counsel, or witnesses.
(Wright v. Eastlick (1899) 125 Cal. 517, 520–521 [58 P. 87]; Garden Grove
School Dist. v. Hendler (1965) 63 Cal.2d 141, 144 [45 Cal.Rptr. 313, 403 P.2d
721].)
• It is misconduct for jurors to engage in experiments that produce new evidence.
(Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234
Cal.App.3d 1724, 1746 [286 Cal.Rptr. 435].)
• Unauthorized visits to the scene of matters involved in the case are improper.
(Anderson v. Pacific Gas & Electric Co. (1963) 218 Cal.App.2d 276, 280 [32
Cal.Rptr. 328].)
• It is improper for jurors to receive information from the news media about the
case. (Province v. Center for Women’s Health & Family Birth (1993) 20
Cal.App.4th 1673, 1679 [25 Cal.Rptr.2d 667], disapproved on other grounds in
Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 41 [32 Cal.Rptr.2d 200,
876 P.2d 999]; Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 408
[196 Cal.Rptr. 117].)
• Jurors must avoid bias: “ ‘The right to unbiased and unprejudiced jurors is an
inseparable and inalienable part of the right to trial by jury guaranteed by the
Constitution.’ ” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98,
110 [95 Cal.Rptr. 516, 485 P.2d 1132], internal citations omitted.) Evidence of
racial prejudice and bias on the part of jurors amounts to misconduct and may
constitute grounds for ordering a new trial. (Ibid.)
• An instruction to disregard any appearance of bias on the part of the judge is
proper and may cure any error in a judge’s comments. (Gist v. French (1955)
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136 Cal.App.2d 247, 257–259 [288 P.2d 1003], disapproved on other grounds in
Deshotel v. Atchinson, Topeka & Santa Fe Ry. Co. (1958) 50 Cal.2d 664, 667
[328 P.2d 449] and West v. City of San Diego (1960) 54 Cal.2d 469, 478 [6
Cal.Rptr. 289, 353 P.2d 929].) “It is well understood by most trial judges that it
is of the utmost importance that the trial judge not communicate in any manner
to the jury the judge’s opinions on the case submitted to the jury, because juries
tend to attach inflated importance to any such communication, even when the
judge has no intention whatever of influencing a jury’s determination.”
(Dorshkind v. Harry N. Koff Agency, Inc. (1976) 64 Cal.App.3d 302, 307 [134
Cal.Rptr. 344].)
Secondary Sources
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§ 322.50 (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.05
California Judges Benchbook: Civil Proceedings—Trial §§ 12.6, 13.50, 13.51, 13.58
(Cal CJER 2019)
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101. Overview of Trial
To assist you in your tasks as jurors, I will now explain how the trial
will proceed. I will begin by identifying the parties to the case. [Name of
plaintiff] filed this lawsuit. [He/She/Nonbinary pronoun/It] is called a
[plaintiff/petitioner]. [He/She/Nonbinary pronoun/It] seeks
[damages/specify other relief] from [name of defendant], who is called a
[defendant/respondent].
[[Name of plaintiff] claims [insert description of the plaintiff’s claim(s)].
[Name of defendant] denies those claims. [[Name of defendant] also
contends that [insert description of the defendant’s affırmative defense(s)].]]
[[Name of cross-complainant] has also filed what is called a cross
complaint against [name of cross-defendant]. [Name of cross-complainant]
is the [defendant/respondent], but also is called the cross-complainant.
[Name of cross-defendant] is called a cross-defendant.]
[In [his/her/nonbinary pronoun/its] cross-complaint, [name of cross-
complainant] claims [insert description of the cross-complainant’s claim(s)].
[Name of cross-defendant] denies those claims. [[Name of cross-defendant]
also contends that [insert description of the cross-defendant’s affırmative
defense(s) to the cross-complaint].]]
First, each side may make an opening statement, but neither side is
required to do so. An opening statement is not evidence. It is simply an
outline to help you understand what that party expects the evidence will
show. Also, because it is often difficult to give you the evidence in the
order we would prefer, the opening statement allows you to keep an
overview of the case in mind during the presentation of the evidence.
Next, the jury will hear the evidence. [Name of plaintiff] will present
evidence first. When [name of plaintiff] is finished, [name of defendant] will
have an opportunity to present evidence. [Then [name of cross-
complainant] will present evidence. Finally, [name of cross-defendant] will
present evidence.]
Each witness will first be questioned by the side that asked the witness to
testify. This is called direct examination. Then the other side is permitted
to question the witness. This is called cross-examination.
Documents or objects referred to during the trial are called exhibits.
Exhibits are given a [number/letter] so that they may be clearly
identified. Exhibits are not evidence until I admit them into evidence.
During your deliberations, you will be able to look at all exhibits
admitted into evidence.
There are many rules that govern whether something will be admitted
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into evidence. As one side presents evidence, the other side has the right
to object and to ask me to decide if the evidence is permitted by the
rules. Usually, I will decide immediately, but sometimes I may have to
hear arguments outside of your presence.
After the evidence has been presented, I will instruct you on the law that
applies to the case and the attorneys will make closing arguments. What
the parties say in closing argument is not evidence. The arguments are
offered to help you understand the evidence and how the law applies to
it.
New September 2003; Revised February 2007, June 2010, May 2019
Directions for Use
This instruction is intended to provide a “road map” for the jurors. This instruction
should be read in conjunction with CACI No. 100, Preliminary Admonitions.
The bracketed second, third, and fourth paragraphs are optional. The court may wish
to use these paragraphs to provide the jurors with an explanation of the claims and
defenses that are at issue in the case. Include the third and fourth paragraphs if a
cross-complaint is also being tried. Include the last sentence in the second and
fourth paragraphs if affirmative defenses are asserted on the complaint or cross-
complaint.
The sixth paragraph presents the order of proof. If there is a cross-complaint,
include the last two sentences. Alternatively, the parties may stipulate to a different
order of proof—for example, by agreeing that some evidence will apply to both the
complaint and the cross-complaint. In this case, customize this paragraph to
correspond to the stipulation.
Sources and Authority
• Pretrial Instructions on Trial Issues and Procedure. Rule 2.1035 of the California
Rules of Court.
• Order of Trial Proceedings. Code of Civil Procedure section 607.
• “[W]e can understand that it might not have seemed like [cross-complainants]
were producing much evidence on their cross-complaint at trial. Most of the
relevant (and undisputed) facts bearing on the legal question of whether [cross-
defendants] had a fiduciary duty and, if so, violated it, had been brought out in
plaintiffs’ case-in-chief. But just because the undisputed evidence favoring the
cross-complaint also happened to come out on plaintiffs’ case-in-chief does not
mean it was not available to support the cross-complaint.” (Le v. Pham (2010)
180 Cal.App.4th 1201, 1207 [103 Cal.Rptr.3d 606], original italics.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 147
Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, Ch. 1, Preparing for
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Trial, ¶¶ 1:1, 1:2 (The Rutter Group)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.50 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial § 3.100 (Cal CJER 2019)
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102. Taking Notes During the Trial
You have been given notebooks and may take notes during the trial. Do
not take the notebooks out of the courtroom or jury room at any time
during the trial. You may take your notes into the jury room during
deliberations.
You should use your notes only to remind yourself of what happened
during the trial. Do not let your note-taking interfere with your ability to
listen carefully to all the testimony and to watch the witnesses as they
testify. Nor should you allow your impression of a witness or other
evidence to be influenced by whether or not other jurors are taking
notes. Your independent recollection of the evidence should govern your
verdict, and you should not allow yourself to be influenced by the notes
of other jurors if those notes differ from what you remember.
[The court reporter is making a record of everything that is said. If
during deliberations you have a question about what the witness said,
you should ask that the court reporter’s records be read to you. You
must accept the court reporter’s record as accurate.]
At the end of the trial, your notes will be [collected and
destroyed/collected and retained by the court but not as a part of the
case record/ [specify other disposition]].
New September 2003; Revised April 2007, December 2007
Directions for Use
This instruction may be given as an introductory instruction or as a concluding
instruction after trial. (See CACI No. 5010, Taking Notes During the Trial).
The bracketed paragraph should not be read if a court reporter is not being used to
record the trial proceedings.
In the last paragraph, specify the court’s disposition of the notes after trial. No
statute or rule of court requires any particular disposition.
Sources and Authority
• Juror Notes. Rule 2.1031 of the California Rules of Court.
• “Because of [the risks of note-taking], a number of courts have held that a
cautionary instruction is required. For example, [one court] held that the
instruction should include ‘an explanation . . . that [jurors] should not permit
their note-taking to distract them from the ongoing proceedings; that their notes
are only an aid to their memory and should not take precedence over their
independent recollection; that those jurors who do not take notes should rely on
their independent recollection of the evidence and not be influenced by the fact
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that another juror has taken notes; and that the notes are for the note taker’s own
personal use in refreshing his recollection of the evidence. The jury must be
reminded that should any discrepancy exist between their recollection of the
evidence and their notes, they should request that the record of the proceedings
be read back and that it is the transcript that must prevail over their notes.’ ”
(People v. Whitt (1984) 36 Cal.3d 724, 747 [205 Cal.Rptr. 810, 685 P.2d 1161],
internal citations and footnote omitted.)
• “In People v. Whitt, we recognized the risks inherent in juror note-taking and
observed that it is ‘the better practice’ for courts to give, sua sponte, a cautionary
instruction on note-taking. Although the ideal instruction would advert
specifically to all the dangers of note-taking, we found the less complete
instruction given in Whitt to be adequate: ‘Be careful as to the amount of notes
that you take. I’d rather that you observe the witness, observe the demeanor of
that witness, listen to how that person testifies rather than taking copious notes
. . . . [I]f you do not recall exactly as to what a witness might have said or you
disagree, for instance, during the deliberation [sic] as to what a witness may
have said, we can reread that transcript back . . . .’ ” (People v. Silbertson
(1985) 41 Cal.3d 296, 303 [221 Cal.Rptr. 152, 709 P.2d 1321], internal citations
and footnote omitted.)
Secondary Sources
California Deskbook on Complex Civil Litigation Management, Ch. 4, Trial of
Complex Cases, § 4.21[5] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.32
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 3.97 (Cal CJER 2019)
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103. Multiple Parties
[There are [number] plaintiffs in this trial. You should decide the case of
each plaintiff separately as if it were a separate lawsuit. Each plaintiff is
entitled to separate consideration of that plaintiff’s own claim(s).]
[There are [number] defendants in this trial. You should decide the case
against each defendant separately as if it were a separate lawsuit. Each
defendant is entitled to separate consideration of that defendant’s own
defenses.]
[Different aspects of this case involve different parties (plaintiffs and
defendants). Each instruction will identify the parties to whom it applies.
Pay particular attention to the parties named in each instruction.]
[or]
[Unless I tell you otherwise, all instructions apply to each plaintiff and
defendant.]
New September 2003; Revised April 2009, May 2020
Directions for Use
The CACI instructions require the use of party names rather than party-status words
like “plaintiff” and “defendant.” In multiparty cases, it is important to name only the
parties in each instruction to whom the instruction applies. For example, an
instruction on loss of consortium (see CACI No. 3920) will not apply to all
plaintiffs. Instructions on vicarious liability (see CACI No. 3700 et seq.) will not
apply to all defendants. Unless all or nearly all of the instructions will apply to all
of the parties, give the first option for the last paragraph.
Sources and Authority
• “We realize, of course, that multiple defendants are involved and that each
defendant is entitled to instructions on, and separate consideration of, every
defense available and applicable to it. The purpose of this rule is to insure that
the jury will distinguish and evaluate the separate facts relevant to each
defendant.” (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 58 [148
Cal.Rptr. 596, 583 P.2d 121], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 78 et seq.
27 California Forms of Pleading and Practice, Ch. 318, Judgments, § 318.15
(Matthew Bender)
1 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 10,
Determining Initial Parties to the Action, § 10-I
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104. Nonperson Party
A [corporation/partnership/city/county/[other entity]], [name of entity], is a
party in this lawsuit. [Name of entity] is entitled to the same fair and
impartial treatment that you would give to an individual. You must
decide this case with the same fairness that you would use if you were
deciding the case between individuals.
When I use words like “person” or “he” or “she” in these instructions to
refer to a party, those instructions also apply to [name of entity].
New September 2003
Directions for Use
This instruction should be given as an introductory instruction if one of the parties
is an entity. Select the type of entity and insert the name of the entity where
indicated in the instruction.
Sources and Authority
• Corporations Have Powers of Natural Person. Corporations Code section 207.
• “Person” Includes Corporation. Civil Code section 14.
• As a general rule, a corporation is considered to be a legal entity that has an
existence separate from that of its shareholders. (Erkenbrecher v. Grant (1921)
187 Cal. 7, 9 [200 P. 641].)
• “In general, any person or entity has capacity to sue or defend a civil action in
the California courts. This includes artificial ‘persons’ such as corporations,
partnerships and associations.” (American Alternative Energy Partners II, 1985 v.
Windridge, Inc. (1996) 42 Cal.App.4th 551, 559 [49 Cal.Rptr.2d 686], internal
citations omitted.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Corporations, § 1, p. 775
1 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 10,
Determining Initial Parties to the Action, §§ 10-V[E]–10-V[I]
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105. Insurance
You must not consider whether any of the parties in this case has
insurance. The presence or absence of insurance is totally irrelevant. You
must decide this case based only on the law and the evidence.
New September 2003; Revised May 2019, November 2019
Directions for Use
If this instruction is given, the advisory committee recommends that it be read to the
jury before reading instructions on the substantive law.
By statute, evidence of a defendant’s insurance coverage is inadmissible to prove
liability. (Evid. Code, § 1155.) If evidence of insurance has been admitted for some
other reason, (1) this instruction may need to be modified to clarify that insurance
may not be considered for purposes of determining liability; and (2) a limiting
instruction should be given advising the jury to consider the evidence only for the
purpose for which it was admitted.
Sources and Authority
• Evidence of Insurance Inadmissible to Prove Liability. Evidence Code section
1155.
• “ ‘The evidence [of liability insurance] is regarded as both irrelevant and
prejudicial to the defendant. Hence, not only is it subject to objection and
exclusion, but any attempt to inject it by question, suggestion or argument is
considered misconduct of counsel, and is often held reversible error.
[Citations.]’ ” (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 469 [130 Cal.Rptr.
786].)
• “Evidence of a defendant’s insurance coverage ordinarily is not admissible to
prove the defendant’s negligence or other wrongdoing.” (Blake v. E. Thompson
Petroleum Repair Co. (1985) 170 Cal.App.3d 823, 830 [216 Cal.Rptr. 568],
original italics.)
• “[E]vidence of a plaintiff’s insurance coverage is not admissible for the purpose
of mitigating the damages the plaintiff would otherwise recover from the
tortfeasor. This is the ‘collateral source rule.’ ” (Blake, supra, 170 Cal.App.3d at
p. 830, original italics; see Helfend v. Southern California Rapid Transit Dist.
(1970) 2 Cal.3d 1, 16–18 [84 Cal.Rptr. 173, 465 P.2d 61].)
• “Both of the foregoing principles are subject to the qualification that where the
topic of insurance coverage is coupled with other relevant evidence, that topic
may be admitted along with such other evidence. ‘[para. ] It has always been the
rule that the existence of insurance may properly be referred to in a case if the
evidence is otherwise admissible.’ The trial court must then determine, pursuant
to Evidence Code section 352, whether the probative value of the other evidence
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outweighs the prejudicial effect of the mention of insurance.” (Blake, supra, 170
Cal.App.3d at p. 831, internal citation omitted.)
• “[T]he trial court did not abuse its discretion by excluding evidence of
[plaintiff]’s insured [health care coverage] under Evidence Code section 352.
[Plaintiff] had the right to treat outside his plan. Evidence of his insurance would
have confused the issues or misled and prejudiced the jury.” (Pebley v. Santa
Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1278 [232 Cal.Rptr.3d 404].)
• “[M]ost of these references to Kaiser and Medicare, as well as the single
reference to Social Security, merely provided context and background
information on [plaintiff]’s past treatment at Kaiser and on some aspects of
[defendant]’s experts’ calculation of past and future reasonable medical expenses.
They were helpful and even necessary to the jury’s understanding of the issues.
[Plaintiff] has not shown the court abused its discretion in admitting these
references to assist the jury’s understanding of the facts.” (Stokes v. Muschinske
(2019) 34 Cal.App.5th 45, 58 [245 Cal.Rptr.3d 764].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 217 et seq.
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.32–34.36
California Practice Guide: Civil Trials and Evidence, Ch. 5-G, Jury
Selection—Scope of Permissible Voir Dire—Proper vs. Improper Questions ¶ 5:371
(The Rutter Group)
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, §§ 50.20, 50.32 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.68 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 16, Jury Instructions, 16.06
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.26
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106. Evidence
You must decide what the facts are in this case only from the evidence
you see or hear during the trial. Sworn testimony, documents, or
anything else may be admitted into evidence. You may not consider as
evidence anything that you see or hear when court is not in session, even
something done or said by one of the parties, attorneys, or witnesses.
What the attorneys say during the trial is not evidence. In their opening
statements and closing arguments, the attorneys will talk to you about
the law and the evidence. What the lawyers say may help you
understand the law and the evidence, but their statements and
arguments are not evidence.
The attorneys’ questions are not evidence. Only the witnesses’ answers
are evidence. You should not think that something is true just because an
attorney’s question suggests that it is true. However, the attorneys for
both sides can agree that certain facts are true. This agreement is called
a “stipulation.” No other proof is needed and you must accept those facts
as true in this trial.
Each side has the right to object to evidence offered by the other side. If
I do not agree with the objection, I will say it is overruled. If I overrule
an objection, the witness will answer and you may consider the evidence.
If I agree with the objection, I will say it is sustained. If I sustain an
objection, you must ignore the question. If the witness did not answer,
you must not guess what that witness might have said or why I sustained
the objection. If the witness has already answered, you must ignore the
answer.
An attorney may make a motion to strike testimony that you have
heard. If I grant the motion, you must totally disregard that testimony.
You must treat it as though it did not exist.
New September 2003; Revised February 2005, December 2010, December 2012,
May 2020
Directions for Use
This instruction should be given as an introductory instruction.
Sources and Authority
• “Evidence” Defined. Evidence Code section 140.
• Jury to Decide Questions of Fact. Evidence Code section 312.
• Miscarriage of Justice. Evidence Code section 353.
• A stipulation in proper form is binding on the parties if it is within the authority
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of the attorney. Properly stipulated facts may not be contradicted. (Palmer v. City
of Long Beach (1948) 33 Cal.2d 134, 141–142 [199 P.2d 952].)
• Courts have held that “attempts to suggest matters of an evidentiary nature to a
jury other than by the legitimate introduction into evidence is misconduct
whether by questions on cross-examination, argument or other means.” (Smith v.
Covell (1980) 100 Cal.App.3d 947, 960 [161 Cal.Rptr. 377].)
• Courts have stated that “[t]he right to object on appeal to misconduct or
improper argument, even when prejudicial, is generally waived in the absence of
a proper objection and request the jury be admonished.” (Atkins v. Bisigier
(1971) 16 Cal.App.3d 414, 427 [94 Cal.Rptr. 49]; Horn v. Atchison, Topeka &
Santa Fe Ry. Co. (1964) 61 Cal.2d 602, 610 [39 Cal.Rptr. 721, 394 P.2d 561].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 1
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 281, 282
1A California Trial Guide, Unit 21, Procedures for Determining Admissibility of
Evidence, §§ 21.01, 21.03 (Matthew Bender)
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§§ 322.56–322.57 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.61, 551.77
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 2.37, 2.38, 3.99, 5.21,
5.29, 5.39, 11.9, 11.35 (Cal CJER 2019)
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107. Witnesses
A witness is a person who has knowledge related to this case. You will
have to decide whether you believe each witness and how important each
witness’s testimony is to the case. You may believe all, part, or none of a
witness’s testimony.
In deciding whether to believe a witness’s testimony, you may consider,
among other factors, the following:
(a) How well did the witness see, hear, or otherwise sense what the
witness described in court?
(b) How well did the witness remember and describe what
happened?
(c) How did the witness look, act, and speak while testifying?
(d) Did the witness have any reason to say something that was not
true? For example, did the witness show any bias or prejudice or
have a personal relationship with any of the parties involved in
the case or have a personal stake in how this case is decided?
(e) What was the witness’s attitude toward this case or about giving
testimony?
Sometimes a witness may say something that is not consistent with
something else the witness said. Sometimes different witnesses will give
different versions of what happened. People often forget things or make
mistakes in what they remember. Also, two people may see the same
event but remember it differently. You may consider these differences,
but do not decide that testimony is untrue just because it differs from
other testimony.
However, if you decide that a witness did not tell the truth about
something important, you may choose not to believe anything that
witness said. On the other hand, if you think the witness did not tell the
truth about some things but told the truth about others, you may accept
the part you think is true and ignore the rest.
Do not make any decision simply because there were more witnesses on
one side than on the other. If you believe it is true, the testimony of a
single witness is enough to prove a fact.
New September 2003; Revised April 2004, June 2005, April 2007, December 2012,
June 2015, December 2016, May 2020
Directions for Use
This instruction may be given as an introductory instruction or as a concluding
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instruction after trial. (See CACI No. 5003, Witnesses.)
Sources and Authority
• Role of Jury. Evidence Code section 312.
• Considerations for Evaluating the Credibility of Witnesses. Evidence Code
section 780.
• Direct Evidence of Single Witness Sufficient. Evidence Code section 411.
• “It should certainly not be of importance to tell the ordinary man of the world
that he should distrust the statements of a witness whom he believes to be a
liar.” (Wallace v. Pacific Electric Ry. Co. (1930) 105 Cal.App. 664, 671 [288 P.
834].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 281
1A California Trial Guide, Unit 22, Rules Affecting Admissibility of Evidence,
§ 22.30 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.122 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.72 (Cal CJER 2019)
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108. Duty to Abide by Translation Provided in Court
Some testimony will be given in [insert language other than English]. An
interpreter will provide a translation for you at the time that the
testimony is given. You must rely solely on the translation provided by
the interpreter, even if you understand the language spoken by the
witness. Do not retranslate any testimony for other jurors. If you believe
the court interpreter translated testimony incorrectly, let me know
immediately by writing a note and giving it to the [clerk/bailiff/court
attendant].
New September 2003; Revised April 2004, June 2011
Sources and Authority
• “Juror [] committed misconduct by failing to rely on the court interpreter’s
translation, as she promised she would during voir dire. She committed further
misconduct by sharing her personal translation with her fellow jurors thus
introducing outside evidence into their deliberations.” (People v. Cabrera (1991)
230 Cal.App.3d 300, 304 [281 Cal.Rptr. 238].)
• “It is well-settled a juror may not conduct an independent investigation into the
facts of the case or gather evidence from outside sources and bring it into the
jury room. It is also misconduct for a juror to inject his or her own expertise
into the jury’s deliberation.” (People v. Cabrera, supra, 230 Cal.App.3d at p.
303.)
• “If [the juror] believed the court interpreter was translating incorrectly, the
proper action would have been to call the matter to the trial court’s attention, not
take it upon herself to provide her fellow jurors with the ‘correct’ translation.”
(People v. Cabrera, supra, 230 Cal.App.3d at p. 304.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 281
1 California Trial Guide, Unit 3, Other Non-Evidentiary Motions, § 3.32 (Matthew
Bender)
1A California Trial Guide, Unit 20, Procedural Rules for Presentation of Evidence,
§ 20.13 (Matthew Bender)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.10, 91.12 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.119 (Cal CJER 2019)
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109. Removal of Claims or Parties
[[Name of plaintiff]’s claim for [insert claim] is no longer an issue in this
case.]
[[Name of party] is no longer a party to this case.]
Do not speculate as to why this [claim/person] is no longer involved in
this case. You should not consider this during your deliberations.
New September 2003
Directions for Use
This instruction may be read during trial as appropriate.
Secondary Sources
California Judges Benchbook: Civil Proceedings—Trial § 9.27 (Cal CJER 2019)
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110. Service Provider for Juror With Disability
During trial, [name of juror] will be assisted by a [insert service provider].
The [insert service provider] is not a member of the jury and is not to
participate in the deliberations in any way other than as necessary to
provide the service to [name of juror].
New September 2003
Directions for Use
This instruction should be read along with other introductory instructions at the
beginning of the trial if appropriate.
Sources and Authority
• Eligibility to Serve as Juror. Code of Civil Procedure section 203(a)(6).
• Service Provider for Juror With Disability. Code of Civil Procedure section 224.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 320, 330
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection, §
322.40 (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 8, Interpreters, 8.32
California Judges Benchbook: Civil Proceedings—Trial § 13.10 (Cal CJER 2019)
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111. Instruction to Alternate Jurors
As [an] alternate juror[s], you are bound by the same rules that govern
the conduct of the jurors who are sitting on the panel. You will observe
the same trial and should pay attention to all of my instructions just as
if you were sitting on the panel. Sometimes a juror needs to be excused
during a trial for illness or some other reason. If that happens, an
alternate will be selected to take that juror’s place.
New October 2004
Directions for Use
If an alternate juror is substituted, see CACI No. 5014, Substitution of Alternate
Juror.
Sources and Authority
• Alternate Jurors. Code of Civil Procedure section 234.
• “Alternate jurors are members of the jury panel which tries the case. They are
selected at the same time as the regular jurors. They take the same oath and are
subject to the same qualifications as the regular jurors. Alternate jurors hear the
same evidence and are subject to the same admonitions as the regular jurors and,
unless excused by the court, are available to participate as regular jurors.”
(Rivera v. Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144],
internal citations omitted.)
Secondary Sources
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§§ 322.44, 322.52, 322.101 (Matthew Bender)
1 California Trial Guide, Unit 10, Voir Dire Examination, § 10.01 et seq. (Matthew
Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 6, Jury Selection, 6.08[4]
California Judges Benchbook: Civil Proceedings—Trial § 3.89 (Cal CJER 2019)
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112. Questions From Jurors
If, during the trial, you have a question that you believe should be asked
of a witness, you may write out the question and send it to me through
my courtroom staff. I will share your question with the attorneys and
decide whether it may be asked.
Do not feel disappointed if your question is not asked. Your question
may not be asked for a variety of reasons. For example, the question
may call for an answer that is not allowed for legal reasons. Also, you
should not try to guess the reason why a question is not asked or
speculate about what the answer might have been. Because the decision
whether to allow the question is mine alone, do not hold it against any of
the attorneys or their clients if your question is not asked.
Remember that you are not an advocate for one side or the other. Each
of you is an impartial judge of the facts. Your questions should be posed
in as neutral a fashion as possible. Do not discuss any question asked by
any juror with any other juror until after deliberations begin.
New February 2005; Revised April 2007, April 2009, June 2011
Directions for Use
This is an optional instruction for use if the jurors will be allowed to ask questions
of the witnesses. For an instruction to be given at the end of the trial, see CACI No.
5019, Questions From Jurors. This instruction may be modified to account for an
individual judge’s practice.
Sources and Authority
• Written Questions From Jurors. Rule 2.1033 of the California Rules of Court.
• “In a proper case there may be a real benefit from allowing jurors to submit
questions under proper control by the court. However, in order to permit the
court to exercise its discretion and maintain control of the trial, the correct
procedure is to have the juror write the questions for consideration by the court
and counsel prior to their submission to the witness.” (People v. McAlister
(1985) 167 Cal.App.3d 633, 644 [213 Cal.Rptr. 271].)
• “[T]he judge has discretion to ask questions submitted by jurors or to pass those
questions on and leave to the discretion of counsel whether to ask the
questions.” (People v. Cummings (1993) 4 Cal.4th 1233, 1305 [18 Cal.Rptr.2d
796, 850 P.2d 1].)
• “The appellant urges that when jurymen ask improper questions the defendant is
placed in the delicate dilemma of either allowing such question to go in without
objection or of offending the jurors by making the objection and the appellant
insists that the court of its own motion should check the putting of such
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improper questions by the jurymen, and thus relieve the party injuriously
affected thereby from the odium which might result from making that objection
thereto. There is no force in this contention. Objections to questions, whether
asked by a juror or by opposing counsel, are presented to the court, and its
ruling thereon could not reasonably affect the rights or standing of the party
making the objection before the jury in the one case more than in the other.”
(Maris v. H. Crummey, Inc. (1921) 55 Cal.App. 573, 578–579 [204 P. 259].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 97
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-E, Juror
Questioning Of Witnesses, ¶ 7:45.11b (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.01–91.03 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 3.96, 8.53 (Cal CJER
2019)
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113. Bias
Each one of us has biases about or certain perceptions or stereotypes of
other people. We may be aware of some of our biases, though we may
not share them with others. We may not be fully aware of some of our
other biases.
Our biases often affect how we act, favorably or unfavorably, toward
someone. Bias can affect our thoughts, how we remember, what we see
and hear, whom we believe or disbelieve, and how we make important
decisions.
As jurors you are being asked to make very important decisions in this
case. You must not let bias, prejudice, or public opinion influence your
decision. You must not be biased in favor of or against parties or
witnesses because of their disability, gender, gender identity, gender
expression, race, religion, ethnicity, sexual orientation, age, national
origin, [or] socioeconomic status[, or [insert any other impermissible form
of bias]].
Your verdict must be based solely on the evidence presented. You must
carefully evaluate the evidence and resist any urge to reach a verdict
that is influenced by bias for or against any party or witness.
New June 2010; Revised December 2012, May 2020
Sources and Authority
• Conduct Exhibiting Bias Prohibited. Standard 10.20(a)(2) of the California
Standards of Judicial Administration.
• Judge Must Perform Duties Without Bias. Canon 3(b)(5) of the California Code
of Judicial Ethics.
Secondary Sources
Witkin, California Procedure (5th ed. 2008) Trial, § 132
1 California Trial Guide, Unit 10, Voir Dire Examination, §§ 10.03[1], 10.21[2],
10.50, 10.80, 10.100 (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 6, Jury Selection, § 6.21
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114. Bench Conferences and Conferences in Chambers
From time to time during the trial, it may become necessary for me to
talk with the attorneys out of the hearing of the jury, either by having a
conference at the bench when the jury is present in the courtroom, or by
calling a recess to discuss matters outside of your presence. The purpose
of these conferences is not to keep relevant information from you, but to
decide how certain evidence is to be treated under the rules of evidence.
Do not be concerned about our discussions or try to guess what is being
said.
I may not always grant an attorney’s request for a conference. Do not
consider my granting or denying a request for a conference as any
indication of my opinion of the case or of my view of the evidence.
New December 2010
Directions for Use
This instruction is based on Model Instruction 1.17 of the federal Ninth Circuit
Court of Appeals. It may be used to explain to the jury why there may be
discussions at the bench that the jury will not be able to hear, and why sometimes
the judge will call a recess for discussions outside of the presence of the jury.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 281
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.77 (Matthew
Bender)
1 California Trial Guide, Unit 4, Pretrial Evidentiary Motions, § 4.10[1] (Matthew
Bender)
Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure, Ch.
2, Public Access to Trials and Records, 2.05
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115. “Class Action” Defined (Plaintiff Class)
A class action is a lawsuit that has been brought by one or more
plaintiffs on behalf of a larger group of people who have similar legal
claims. All of these people together are called a “class.” [Name of
plaintiff] brings this action as the class representative.
In a class action, the claims of many individuals can be resolved at the
same time instead of requiring each member to sue separately. Because
of the large number of claims that are at issue in this case, not everyone
in the class will testify. You may assume that the evidence at this [stage
of the] trial applies to all class members [except as I specifically tell you
otherwise]. All members of the class will be bound by the result of this
trial.
In this case, the class(es) consist(s) of the following:
[Describe each class, e.g.,
Original Homebuyers: All current homeowners in the Happy Valley
subdivision in Pleasantville, California, who purchased homes that were
constructed and marketed by [name of defendant]. (“Class of Original
Purchasers”)
Subsequent Homebuyers: All current homeowners in the Happy Valley
subdivisions in Pleasantville, California, who purchased homes that were
constructed and marketed by [name of defendant] from another homeowner.
(“Class of Later Purchasers”)].
New June 2011
Directions for Use
The first paragraph may be modified for use with a defendant class. If in the course
of the trial the court decertifies the class or one of the classes as to some or all
issues, a concluding instruction explaining the effect of the decertification should be
given.
In the second paragraph, if class evidence and individual evidence will be received
in separate stages of the trial, include the first bracketed language. If both class
evidence and individual evidence will be received together, include the second
bracketed language and specify the class evidence in a separate instruction.
Sources and Authority
• Right to Bring Class Action. Code of Civil Procedure section 382.
• “Courts long have acknowledged the importance of class actions as a means to
prevent a failure of justice in our judicial system. ‘ “By establishing a technique
whereby the claims of many individuals can be resolved at the same time, the
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class suit both eliminates the possibility of repetitious litigation and provides
small claimants with a method of obtaining redress . . . .” ’ Generally, a class
suit is appropriate ‘when numerous parties suffer injury of insufficient size to
warrant individual action and when denial of class relief would result in unjust
advantage to the wrongdoer.’ ‘But because group action also has the potential to
create injustice, trial courts are required to ‘ “carefully weigh respective benefits
and burdens and to allow maintenance of the class action only where substantial
benefits accrue both to litigants and the courts.” ’ ” (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 434–435 [97 Cal.Rptr.2d 179, 2 P.3d 27], internal
citations omitted.)
• “The cases uniformly hold that a plaintiff seeking to maintain a class action must
be a member of the class he claims to represent.” (La Sala v. American Sav. &
Loan Assn. (1971) 5 Cal.3d 864, 875 [97 Cal.Rptr 849, 489 P.2d 1113].)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 267 et seq.
Cabraser, California Class Actions and Coordinated Proceedings (2d ed.), Ch. 3,
California’s Class Action Statute, § 3.03 (Matthew Bender)
California Deskbook on Complex Civil Litigation Management, Ch. 5, Specialized
Areas, § 5.80 et seq. (Matthew Bender)
12 California Forms of Pleading and Practice, Ch. 120, Class Actions, §§ 120.11,
120.14 (Matthew Bender)
4 California Points and Authorities, Ch. 41, Class and Representative Actions,
§ 41.30 et seq. (Matthew Bender)
2 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 37,
Class Actions, § 37-I et seq.
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116. Why Electronic Communications and Research Are
Prohibited
I know that many of us are used to communicating and perhaps even
learning by electronic communications and research. However, there are
good reasons why you must not electronically communicate or do any
research on anything having to do with this trial or the parties.
In court, jurors must make important decisions that have consequences
for the parties. Those decisions must be based only on the evidence that
you hear in this courtroom.
The evidence that is presented in court can be tested; it can be shown to
be right or wrong by either side; it can be questioned; and it can be
contradicted by other evidence. What you might read or hear on your
own could easily be wrong, out of date, or inapplicable to this case.
The parties can receive a fair trial only if the facts and information on
which you base your decisions are presented to you as a group, with
each juror having the same opportunity to see, hear, and evaluate the
evidence.
Also, a trial is a public process that depends on disclosure in the
courtroom of facts and evidence. Using information gathered in secret by
one or more jurors undermines the public process and violates the rights
of the parties.
New June 2011
Directions for Use
Give this instruction after CACI No. 100, Preliminary Admonitions, in order to
provide more information to the jury as to the reasons why independent electronic
research using the internet and electronic communications are prohibited.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 330 et seq.
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-F, Juror
Misconduct During Trial, ¶¶ 7:110, 7:113.1 (The Rutter Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-F, Juror
Misconduct During Deliberations, ¶¶ 15:206–15:210 (The Rutter Group)
4 Johnson, California Trial Guide, Unit 91, Jury Deliberations and Rendition of
Verdict, § 91.10 et seq. (Matthew Bender)
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§ 322.50 et seq. (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
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Ch. 17, Dealing With the Jury, 17.21
California Judges Benchbook: Civil Proceedings—Trial §§ 3.95, 13.50, 13.51 (Cal
CJER 2019)
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117. Wealth of Parties
In reaching a verdict, you may not consider the wealth or poverty of any
party. The parties’ wealth or poverty is not relevant to any of the issues
that you must decide.
New November 2017
Directions for Use
This instruction may be given unless liability and punitive damages are to be
decided in a nonbifurcated trial. The defendant’s wealth is relevant to punitive
damages. (Adams v. Murakami (1991) 54 Cal.3d 105, 108 [284 Cal.Rptr. 318, 813
P.2d 1348].) Otherwise, the wealth or lack of it is not relevant. (Hoffman v. Brandt
(1966) 65 Cal.2d 549, 552–553 [55 Cal.Rptr. 417, 421 P.2d 425].) If this instruction
is given in a nonbifurcated trial, it should be modified to clarify that the prohibition
on considering wealth applies only to liability and compensatory damages, and not
to punitive damages. For discussion of the role of a defendant’s financial condition
with regard to punitive damages, see the punitive damages instructions in the
Damages series, CACI Nos. 3940–3949.
Sources and Authority
• “Justice is to be accorded to rich and poor alike, and a deliberate attempt by
counsel to appeal to social or economic prejudices of the jury, including the
wealth or poverty of the litigants, is misconduct where the asserted wealth or
poverty is not relevant to the issues of the case. The possibility, even if true, that
a judgment for plaintiffs would mean that defendant would have to go to the
Laguna Honda Home, had no relevance to the issues of the case, and the
argument of defense counsel was clearly a transparent attempt to appeal to the
sympathies of the jury on the basis of the claimed lack of wealth of the
defendant. As such, it was clearly misconduct.” (Hoffman, supra, 65 Cal.2d at
pp. 552–553, internal citations omitted.)
• “[W]here liability and punitive damages are tried in a single proceeding,
evidence of wealth is admissible. ‘[W]hile in the ordinary action for damages
information regarding the adversary’s financial status is inadmissible, this is not
so in an action for punitive damages. In such a case evidence of defendant’s
financial condition is admissible at the trial for the purpose of determining the
amount that it is proper to award [citations]. The relevancy of such evidence lies
in the fact that punitive damages are not awarded for the purpose of rewarding
the plaintiff but to punish the defendant. Obviously, the trier of fact cannot
measure the ‘punishment’ without knowledge of defendant’s ability to respond to
a given award.’ ” (Las Palmas Associates v. Las Palmas Center Associates
(1991) 235 Cal.App.3d 1220, 1243 [1 Cal.Rptr.2d 301], original italics.)
• “In an action for damages, a showing of poverty of the plaintiff is highly
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prejudicial; if such evidence is deliberately introduced, it may constitute
reversible error.” (Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [84 Cal.Rptr.
220].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 215, 216
4 Levy et al., California Torts, Ch. 54, Punitive Damages, § 54.24 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51[14]
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.141 et seq.
(Matthew Bender)
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118. Personal Pronouns
One of the [parties/witnesses/attorneys/specify other participant in the
case] in this case uses the personal pronouns [specify the person’s
pronouns]. You may hear the judge and attorneys refer to [name of
person] using the pronouns: [specify the person’s pronouns].
New May 2020
Directions for Use
It is the policy of the State of California that intersex, transgender, and nonbinary
people are entitled to full legal recognition and equal treatment under the law. In
accordance with this policy, attorneys and courts should take affirmative steps to
ensure that they are using correct personal pronouns. To further this policy, these
instructions have been expanded to include “nonbinary pronoun” wherever
appropriate. Although the advisory committee acknowledges a trend for the singular
use of “they,” “their,” and “them,” the committee also recognizes these pronouns
have plural denotations with the potential to confuse jurors. For clarity in the jury
instructions, the committee recommends using an individual’s name rather than a
personal nonbinary pronoun (such as “they”) if the pronoun could result in
confusion.
The court should consult with the attorneys in the case before reading this
instruction to the jury. The court should also consult with the individual whose
pronouns are being discussed to ensure the court acts in a way that protects the
individual’s dignity and privacy.
Sources and Authority
• Gender Recognition Act. Stats. 2019, ch. 853 (SB 179).
• “Sex” Defined. Gov. Code, § 12926(r)(2).
• “Gender Expression” Defined. Cal. Code Regs., tit. 2, § 11030(a).
• “Gender Identity” Defined. Cal. Code Regs., tit. 2, § 11030(b).
119–199. Reserved for Future Use
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EVIDENCE
200. Obligation to Prove—More Likely True Than Not True
201. Highly Probable—Clear and Convincing Proof
202. Direct and Indirect Evidence
203. Party Having Power to Produce Better Evidence
204. Willful Suppression of Evidence
205. Failure to Explain or Deny Evidence
206. Evidence Admitted for Limited Purpose
207. Evidence Applicable to One Party
208. Deposition as Substantive Evidence
209. Use of Interrogatories of a Party
210. Requests for Admissions
211. Prior Conviction of a Felony
212. Statements of a Party Opponent
213. Adoptive Admissions
214. Reserved for Future Use
215. Exercise of a Communication Privilege
216. Exercise of Right Not to Incriminate Oneself (Evid. Code, § 913)
217. Evidence of Settlement
218. Statements Made to Physician (Previously Existing Condition)
219. Expert Witness Testimony
220. Experts—Questions Containing Assumed Facts
221. Conflicting Expert Testimony
222. Evidence of Sliding-Scale Settlement
223. Opinion Testimony of Lay Witness
224. Testimony of Child
225–299. Reserved for Future Use
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200. Obligation to Prove—More Likely True Than Not True
The parties must persuade you, by the evidence presented in court, that
what they are required to prove is more likely to be true than not true.
This is referred to as “the burden of proof.”
After weighing all of the evidence, if you cannot decide that something is
more likely to be true than not true, you must conclude that the party
did not prove it. You should consider all the evidence, no matter which
party produced the evidence.
In criminal trials, the prosecution must prove that the defendant is guilty
beyond a reasonable doubt. But in civil trials, such as this one, the party
who is required to prove something need prove only that it is more likely
to be true than not true.
New September 2003; Revised February 2005, May 2020
Directions for Use
Evidence Code section 502 requires the court to instruct the jury regarding which
party bears the burden of proof on each issue and the requisite degree of proof.
For an instruction on clear and convincing evidence, see CACI No. 201, Highly
Probable—Clear and Convincing Proof.
Sources and Authority
• Burden of Proof—Preponderance of Evidence. Evidence Code section 115.
• Party With Burden of Proof. Evidence Code section 500.
• Each party is entitled to the benefit of all the evidence, including the evidence
produced by an adversary. (Williams v. Barnett (1955) 135 Cal.App.2d 607, 612
[287 P.2d 789]; 7 Witkin, California Procedure (4th ed. 1997) Trial, § 305, p.
352.)
• The general rule in California is that “ ‘[i]ssues of fact in civil cases are
determined by a preponderance of testimony.’ ” (Weiner v. Fleischman (1991) 54
Cal.3d 476, 483 [286 Cal.Rptr. 40, 816 P.2d 892], citation omitted.)
• The preponderance-of-the-evidence standard “simply requires the trier of fact ‘to
believe that the existence of a fact is more probable than its nonexistence.’ ” (In
re Angelia P. (1981) 28 Cal.3d 908, 918 [171 Cal.Rptr. 637, 623 P.2d 198],
citation omitted.)
• “Preponderance of the evidence” “ ‘means what it says, viz., that the evidence
on one side outweighs, preponderates over, is more than, the evidence on the
other side, not necessarily in number of witnesses or quantity, but in its effect on
those to whom it is addressed.’ ” (Glage v. Hawes Firearms Co. (1990) 226
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EVIDENCE CACI No. 200
Cal.App.3d 314, 325 [276 Cal.Rptr. 430] (quoting People v. Miller (1916) 171
Cal. 649, 652 [154 P. 468] and holding that it was prejudicial misconduct for
jurors to refer to the dictionary for definition of the word “preponderance”).)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§ 36
Jefferson, California Evidence Benchbook (3d ed. 1997) Ch. 45, Burdens of Proof
and of Producing Evidence; Presumptions
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.90, 551.92
(Matthew Bender)
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201. Highly Probable—Clear and Convincing Proof
Certain facts must be proved by clear and convincing evidence, which is
a higher burden of proof. This means the party must persuade you that
it is highly probable that the fact is true. I will tell you specifically which
facts must be proved by clear and convincing evidence.
New September 2003; Revised October 2004, June 2015
Directions for Use
Evidence Code section 502 requires the court to instruct the jury regarding which
party bears the burden of proof on each issue and the requisite degree of proof.
This instruction should be read immediately after CACI No. 200, Obligation to
Prove—More Likely True Than Not True, if the jury will have to decide an issue by
means of the clear-and-convincing evidence standard.
Sources and Authority
• Burden of Proof. Evidence Code section 115.
• Party With Burden of Proof. Evidence Code section 500.
• “Proof by clear and convincing evidence is required ‘where particularly
important individual interests or rights are at stake,’ such as the termination of
parental rights, involuntary commitment, and deportation. However, ‘imposition
of even severe civil sanctions that do not implicate such interests has been
permitted after proof by a preponderance of the evidence.’ ” (Weiner v.
Fleischman (1991) 54 Cal.3d 476, 487 [286 Cal.Rptr. 40, 816 P.2d 892] (quoting
Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 389–390).)
• “ ‘Clear and convincing’ evidence requires a finding of high probability.” (In re
Angelia P. (1981) 28 Cal.3d 908, 919 [171 Cal.Rptr. 637, 623 P.2d 198].)
• “Under the clear and convincing standard, the evidence must be ‘ “ ‘ “so clear as
to leave no substantial doubt” ’ ” ’ and ‘ “ ‘ “sufficiently strong to command the
unhesitating assent of every reasonable mind.” ’ ” ’ ” (Butte Fire Cases (2018)
24 Cal.App.5th 1150, 1158 [235 Cal.Rptr.3d 228].)
• “We decline to hold that CACI No. 201 should be augmented to require that ‘the
evidence must be “so clear as to leave no substantial doubt” and “sufficiently
strong as to command the unhesitating assent of every reasonable mind.” ’
Neither In re Angelia P., supra, 28 Cal.3d 908, nor any more recent authority
mandates that augmentation, and the proposed additional language is dangerously
similar to that describing the burden of proof in criminal cases.” (Nevarrez v.
San Marino Skilled Nursing & Wellness Center (2013) 221 Cal.App.4th 102, 114
[163 Cal.Rptr.3d 874].)
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EVIDENCE CACI No. 201
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§§ 39, 40
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 45.4, 45.21
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.90, 551.92
(Matthew Bender)
1 Cathcart et al., Matthew Bender Practice Guide: California Debt Collection and
Enforcement of Judgments, Ch. 9, Burdens of Proof and Persuasion, 9.16
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202. Direct and Indirect Evidence
Evidence can come in many forms. It can be testimony about what
someone saw or heard or smelled. It can be an exhibit admitted into
evidence. It can be someone’s opinion.
Direct evidence can prove a fact by itself. For example, if a witness
testifies she saw a jet plane flying across the sky, that testimony is direct
evidence that a plane flew across the sky. Some evidence proves a fact
indirectly. For example, a witness testifies that he saw only the white
trail that jet planes often leave. This indirect evidence is sometimes
referred to as “circumstantial evidence.” In either instance, the witness’s
testimony is evidence that a jet plane flew across the sky.
As far as the law is concerned, it makes no difference whether evidence
is direct or indirect. You may choose to believe or disbelieve either kind.
Whether it is direct or indirect, you should give every piece of evidence
whatever weight you think it deserves.
New September 2003; Revised December 2012
Directions for Use
An instruction concerning the effect of circumstantial evidence must be given on
request when it is called for by the evidence. (Shepherd v. Walley (1972) 28
Cal.App.3d 1079, 1084 [105 Cal.Rptr. 387]; Calandri v. Ione Unified School Dist.
(1963) 219 Cal.App.2d 542, 551 [33 Cal.Rptr. 333]; Trapani v. Holzer (1958) 158
Cal.App.2d 1, 6 [321 P.2d 803].)
Sources and Authority
• Direct Evidence. Evidence Code section 410.
• Inference. Evidence Code section 600(b).
• The Assembly Committee on Judiciary Comment to section 600 observes:
“Under the Evidence Code, an inference is not itself evidence; it is the result of
reasoning from evidence.”
• “[T]he fact that evidence is ‘circumstantial’ does not mean that it cannot be
‘substantial.’ Relevant circumstantial evidence is admissible in California.
Moreover, the jury is entitled to accept persuasive circumstantial evidence even
where contradicted by direct testimony.” (Hasson v. Ford Motor Co. (1977) 19
Cal.3d 530, 548 [138 Cal.Rptr. 705, 564 P.2d 857], overruled on other grounds
in Soule v. GM Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “The terms ‘indirect evidence’ and ‘circumstantial evidence’ are interchangeable
and synonymous.” (People v. Yokum (1956) 145 Cal.App.2d 245, 250 [302 P.2d
406], disapproved on other grounds, People v. Cook (1983) 33 Cal.3d 400, 413
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EVIDENCE CACI No. 202
[189 Cal.Rptr. 159, 658 P.2d 86]; People v. Goldstein (1956) 139 Cal.App.2d
146, 152 [293 P.2d 495].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 1, 2
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 152–155
7 Witkin, California Procedure (5th ed. 2008) Trial, § 291
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.62 (Matthew
Bender)
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 19.12–19.18
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203. Party Having Power to Produce Better Evidence
You may consider the ability of each party to provide evidence. If a
party provided weaker evidence when it could have provided stronger
evidence, you may distrust the weaker evidence.
New September 2003
Directions for Use
An instruction on failure to produce evidence should not be given if there is no
evidence that the party producing inferior evidence had the power to produce
superior evidence. (Thomas v. Gates (1899) 126 Cal. 1, 6 [58 P. 315]; Hansen v.
Warco Steel Corp. (1965) 237 Cal.App.2d 870, 876 [47 Cal.Rptr. 428]; Holland v.
Kerr (1953) 116 Cal.App.2d 31, 37 [253 P.2d 88].)
The reference to “stronger evidence” applies to evidence that is admissible. This
instruction should not be construed to apply to evidence that the court has ruled
inadmissible. (Hansen, supra, 237 Cal.App.2d at p. 877.)
For willful suppression of evidence, see CACI No. 204, Willful Suppression of
Evidence.
Sources and Authority
• Power to Produce Better Evidence. Evidence Code section 412.
• Section 412 does not incorporate the “best evidence rule,” but instead deals with
“stronger and more satisfactory” evidence. (Largey v. Intrastate Radiotelephone,
Inc. (1982) 136 Cal.App.3d 660, 672 [186 Cal.Rptr. 520] (giving of instruction
was proper because corporate records concerning date of meeting could have
been stronger evidence than recollection of participants several years later).)
• This inference was a mandatory presumption under former Code of Civil
Procedure section 1963(6). It is now considered a permissible inference. (See 3
Witkin, California Evidence (4th ed. 2000) § 114, p. 152.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 302
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial § 11.10 (Cal CJER 2019)
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204. Willful Suppression of Evidence
You may consider whether one party intentionally concealed or
destroyed evidence. If you decide that a party did so, you may decide
that the evidence would have been unfavorable to that party.
New September 2003; Revised October 2004
Directions for Use
This instruction should be given only if there is evidence of suppression. (In re
Estate of Moore (1919) 180 Cal. 570, 585 [182 P. 285]; Sprague v. Equifax, Inc.
(1985) 166 Cal.App.3d 1012, 1051 [213 Cal.Rptr. 69]; County of Contra Costa v.
Nulty (1965) 237 Cal.App.2d 593, 598 [47 Cal.Rptr. 109].)
If there is evidence that a party improperly altered evidence (as opposed to
concealing or destroying it), users should consider modifying this instruction to
account for that circumstance.
In Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12 [74
Cal.Rptr.2d 248, 954 P.2d 511], a case concerning the tort of intentional spoliation
of evidence, the Supreme Court observed that trial courts are free to adapt standard
jury instructions on willful suppression to fit the circumstances of the case,
“including the egregiousness of the spoliation and the strength and nature of the
inference arising from the spoliation.”
Sources and Authority
• Willful Suppression of Evidence. Evidence Code section 413.
• Former Code of Civil Procedure section 1963(5) permitted the jury to infer
“[t]hat the evidence willfully suppressed would be adverse if produced.”
Including this inference in a jury instruction on willful suppression is proper
because “Evidence Code section 413 was not intended as a change in the law.”
(Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 994 [16
Cal.Rptr.2d 787], disapproved of on other grounds in Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d
179].)
• “The rule of [present Evidence Code section 413] . . . is predicated on common
sense, and public policy. The purpose of a trial is to arrive at the true facts. A
trial is not a game where one counsel safely may sit back and refuse to produce
evidence where in the nature of things his client is the only source from which
that evidence may be secured. A defendant is not under a duty to produce
testimony adverse to himself, but if he fails to produce evidence that would
naturally have been produced he must take the risk that the trier of fact will
infer, and properly so, that the evidence, had it been produced, would have been
adverse.” (Williamson v. Superior Court of Los Angeles County (1978) 21 Cal.3d
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CACI No. 204 EVIDENCE
829, 836 fn. 2 [148 Cal.Rptr. 39, 582 P.2d 126], original italics.)
• “We can see no error in the trial court’s ruling [giving this instruction]. The jury
was told only that it could ‘consider whether one party intentionally concealed
or destroyed evidence.’ Defendants were free to present the jury with evidence
that (as counsel represented to the court), the redactions were only of telephone
numbers, and that the failure to interview certain witnesses was proper, and to
argue that evidence to the jury.” (Ventura v. ABM Industries Inc. (2012) 212
Cal.App.4th 258, 273 [150 Cal.Rptr.3d 861].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 302
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 129
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 5.44, 11.10 (Cal CJER
2019)
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205. Failure to Explain or Deny Evidence
If a party failed to explain or deny evidence against [him/her/nonbinary
pronoun/it] when [he/she/nonbinary pronoun/it] could reasonably be
expected to have done so based on what [he/she/nonbinary pronoun/it]
knew, you may consider [his/her/nonbinary pronoun/its] failure to explain
or deny in evaluating that evidence.
It is up to you to decide the meaning and importance of the failure to
explain or deny evidence against the party.
New September 2003; Revised December 2012
Directions for Use
This instruction should be given only if there is a failure to deny or explain a fact
that is material to the case.
Sources and Authority
• Failure to Explain or Deny. Evidence Code section 413.
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 129
7 Witkin, California Procedure (5th ed. 2008) Trial, § 302
Cotchett, California Courtroom Evidence, § 11.04 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93[3] (Matthew
Bender)
4 California Trial Guide, Unit. 90, Closing Argument, § 90.30[2] (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 11.10 (Cal CJER 2019)
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206. Evidence Admitted for Limited Purpose
During the trial, certain evidence was admitted for a limited purpose.
You may consider that evidence only for that purpose and for no other.
New September 2003; Revised May 2018, November 2018
Directions for Use
It is recommended that the judge call attention to the purpose to which the evidence
applies.
If appropriate, an instruction limiting the purpose for which evidence is to be
considered must be given upon request. (Evid. Code, § 355; Daggett v. Atchison,
Topeka & Santa Fe Ry. Co. (1957) 48 Cal.2d 655, 665–666 [313 P.2d 557];
Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388,
412 [264 Cal.Rptr. 779].)
A limited-purpose instruction is insufficient to cure hearsay problems with case-
specific testimony given by an expert witness. (People v. Sanchez (2016) 63 Cal.4th
665, 684 [204 Cal.Rptr.3d 102, 374 P.3d 320].)
For an instruction on evidence applicable to one party or a limited number of
parties, see CACI No. 207, Evidence Applicable to One Party.
Sources and Authority
• Evidence Admitted for Limited Purpose. Evidence Code section 355.
• Refusal to give a requested instruction limiting the purpose for which evidence
is to be considered may constitute error. (Adkins v. Brett (1920) 184 Cal. 252,
261–262 [193 P. 251].)
• “The effect of the statute—here, the municipal code section—is to make certain
hearsay evidence admissible for a limited purpose, i.e., supplementing or
explaining other evidence. This triggers the long-standing rule codified in
Evidence Code section 355, which states, ‘When evidence is admissible . . . for
one purpose and is inadmissible . . . for another purpose, the court upon request
shall restrict the evidence to its proper scope and instruct the jury accordingly.’
. . . In the absence of such a request, the evidence is ‘ “usable for any purpose.”
’ ” (Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1060–1061 [202
Cal.Rptr.3d 890], original italics.)
• “Where the information is admitted for a purpose other than showing the truth of
the matter asserted . . . , prejudice is likely to be minimal and a limiting
instruction under section 355 may be requested to control the jury’s use of the
information.” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1525 [3
Cal.Rptr.2d 833].)
• An adverse party may be excused from the requirement of requesting a limiting
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EVIDENCE CACI No. 206
instruction and may be permitted to assert error if the trial court unequivocally
rejects the argument upon which a limiting instruction would be based. (Warner
Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 298–299 [85
Cal.Rptr. 444, 466 P.2d 996].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 32–36
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 20.11–20.13
1A California Trial Guide, Unit 21, Procedures for Determining Admissibility of
Evidence, § 21.21 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.66[2], 551.77
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 3.106, 12.26 (Cal CJER
2019)
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207. Evidence Applicable to One Party
[During the trial, I explained that certain evidence could be considered
as to only one party. You may not consider that evidence as to any other
party.]
[During the trial, I explained that certain evidence could be considered
as to one or more parties but not to every party. You may not consider
that evidence as to any other party.]
New September 2003
Directions for Use
If appropriate, an instruction limiting the parties to whom evidence applies must be
given on request. (Evid. Code, § 355.) It is recommended that the judge call
attention to the party or parties to which the evidence applies.
For an instruction on evidence admissible for a limited purpose, see CACI No. 206,
Evidence Admitted for Limited Purpose.
Sources and Authority
• Evidence Applicable to One Party. Evidence Code section 355.
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 32–36
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 20.11–20.13
1A California Trial Guide, Unit 21, Procedures for Determining Admissibility of
Evidence, § 21.21 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.66, 551.77
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 3.106, 12.26 (Cal CJER
2019)
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208. Deposition as Substantive Evidence
During the trial, you received deposition testimony that was [read from
the deposition transcript/[describe other manner presented, e.g., shown by
video]]. A deposition is the testimony of a person taken before trial. At a
deposition the person is sworn to tell the truth and is questioned by the
attorneys. You must consider the deposition testimony that was presented
to you in the same way as you consider testimony given in court.
New September 2003; Revised December 2012
Sources and Authority
• How Testimony is Taken. Code of Civil Procedure section 2002.
• Use of Deposition at Trial. Code of Civil Procedure section 2025.620.
• Admissibility of Former Testimony. Evidence Code sections 1291(a), 1292(a).
• “Former Testimony” Defined. Evidence Code section 1290(c).
• “Admissions contained in depositions and interrogatories are admissible in
evidence to establish any material fact.” (Leasman v. Beech Aircraft Corp.
(1975) 48 Cal.App.3d 376, 380 [121 Cal.Rptr. 768].)
• “The deposition of a witness, whether or not a party, may be used by any party
for any purpose if the court finds the witness unavailable as a witness within the
meaning of section 240 of the Evidence Code.” (Chavez v. Zapata Ocean
Resources, Inc. (1984) 155 Cal.App.3d 115, 118 [201 Cal.Rptr. 887], citation
omitted.)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 167–176
7 Witkin, California Procedure (5th ed. 2008) Trial, § 293
1A California Trial Guide, Unit 20, Procedural Rules for Presentation of Evidence,
§§ 20.30–20.38, Unit 40, Hearsay, §§ 40.60–40.61 (Matthew Bender)
5 Levy et al., California Torts, Ch. 72, Discovery, § 72.41 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 193, Discovery: Depositions,
§§ 193.90–193.96 (Matthew Bender)
2 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 45,
Depositions and Subpoenas in California, § 45-IX
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209. Use of Interrogatories of a Party
Before trial, each party has the right to ask the other parties to answer
written questions. These questions are called interrogatories. The
answers are also in writing and are given under oath. You must consider
the questions and answers that were read to you the same as if the
questions and answers had been given in court.
New September 2003
Sources and Authority
• Use of Interrogatories at Trial. Code of Civil Procedure section 2030.410.
• “Admissions contained in depositions and interrogatories are admissible in
evidence to establish any material fact.” (Leasman v. Beech Aircraft Corp.
(1975) 48 Cal.App.3d 376, 380 [121 Cal.Rptr. 768].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 177
7 Witkin, California Procedure (5th ed. 2008) Trial, § 293
1A California Trial Guide, Unit 20, Procedural Rules for Presentation of Evidence,
§ 20.50 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 194, Discovery: Interrogatories,
§ 194.26 (Matthew Bender)
2 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 41,
Interrogatories, § 41-V
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210. Requests for Admissions
Before trial, each party has the right to ask another party to admit in
writing that certain matters are true. If the other party admits those
matters, you must accept them as true. No further evidence is required
to prove them.
[However, these matters must be considered true only as they apply to
the party who admitted they were true.]
New September 2003
Directions for Use
The bracketed phrase should be given if there are multiple parties.
Sources and Authority
• Requests for Admission. Code of Civil Procedure section 2033.010.
• “As Professor Hogan points out, ‘[t]he request for admission differs
fundamentally from the other five discovery tools (depositions, interrogatories,
inspection demands, medical examinations, and expert witness exchanges). These
other devices have as their main thrust the uncovering of factual data that may
be used in proving things at trial. The request for admission looks in the
opposite direction. It is a device that seeks to eliminate the need for proof in
certain areas of the case.’ ” (Brigante v. Huang (1993) 20 Cal.App.4th 1569,
1577 [25 Cal.Rptr.2d 354] (quoting 1 Hogan, Modern California Discovery (4th
ed. 1988) § 9.1, p. 533).)
• All parties to the action may rely on admissions. (See Swedberg v. Christiana
Community Builders (1985) 175 Cal.App.3d 138, 143 [220 Cal.Rptr. 544].)
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Discovery, §§ 162, 172, 182
1A California Trial Guide, Unit 20, Procedural Rules for Presentation of Evidence,
§ 20.51 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 196, Discovery: Requests for
Admissions, § 196.19 (Matthew Bender)
2 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 44,
Requests for Admission, § 44-I
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211. Prior Conviction of a Felony
You have heard that a witness in this trial has been convicted of a
felony. You were told about the conviction [only] to help you decide
whether you should believe the witness. [You also may consider the
evidence for the purpose of [specify].] You must not consider it for any
other purpose.
New September 2003; Revised December 2012
Directions for Use
Include the word “only” unless the court has admitted the evidence for some other
purpose, in which case, include the next-to-last sentence. For example, a prior
alcohol-related conviction might be relevant to show conscious disregard if the
claim involves conduct while under the influence.
Sources and Authority
• Admissibility of Evidence of Prior Felony Conviction. Evidence Code section
788.
• The standards governing admissibility of prior convictions in civil cases are
different from those in criminal proceedings. In Robbins v. Wong (1994) 27
Cal.App.4th 261, 273 [32 Cal.Rptr.2d 337], the court observed: “Given the
significant distinctions between the rights enjoyed by criminal defendants and
civil litigants, and the diminished level of prejudice attendant to felony
impeachment in civil proceedings, it is not unreasonable to require different
standards of admissibility in civil and criminal cases.” (Id. at p. 273.)
• In Robbins, the court concluded that article I, section 28(f) of the California
Constitution, as well as any Supreme Court cases on this topic in the criminal
arena, does not apply to civil cases. (Robbins, supra, 27 Cal.App.4th at p. 274.)
However, the court did hold that the trial court “may utilize such decisions to
formulate guidelines for the judicial weighing of probative value against
prejudicial effect under section 352.” (Ibid.)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 304, 306, 307,
320
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.123 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 11, Questioning Witnesses and Objections, 11.64
California Judges Benchbook: Civil Proceedings—Trial § 8.74 (Cal CJER 2019)
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212. Statements of a Party Opponent
A party may offer into evidence any oral or written statement made by
an opposing party outside the courtroom.
When you evaluate evidence of such a statement, you must consider
these questions:
1. Do you believe that the party actually made the statement? If you
do not believe that the party made the statement, you may not
consider the statement at all.
2. If you believe that the statement was made, do you believe it was
reported accurately?
You should view testimony about an oral statement made by a party
outside the courtroom with caution.
New September 2003
Directions for Use
Under Evidence Code section 403(c), the court must instruct the jury to disregard a
statement offered as evidence if it finds that the preliminary facts do not exist. For
adoptive admissions, see CACI No. 213, Adoptive Admissions.
Sources and Authority
• Determination of Preliminary Facts. Evidence Code section 403.
• Statements of Party. Evidence Code section 1220.
• The Law Revision Commission comment to this section observes that “[t]he
rational underlying this exception is that the party cannot object to the lack of
the right to cross-examine the declarant since the party himself made the
statement.”
• There is no requirement that the prior statement of a party must have been
against his or her interests when made in order to be admissible. Any prior
statement of a party may be offered against him or her in trial. (1 Witkin,
California Evidence (4th ed. 2000) Hearsay § 93.)
• The cautionary instruction regarding admissions is derived from common law,
formerly codified at Code of Civil Procedure section 2061. The repeal of this
section did not affect decisional law concerning the giving of the cautionary
instruction. (People v. Beagle (1972) 6 Cal.3d 441, 455, fn. 4 [99 Cal.Rptr. 313,
492 P.2d 1].)
• The purpose of the cautionary instruction has been stated as follows: “Ordinarily
there is strong reasoning behind the principle that a party’s extrajudicial
admissions or declarations against interest should be viewed with caution. . . .
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CACI No. 212 EVIDENCE
No class of evidence is more subject to error or abuse inasmuch as witnesses
having the best of motives are generally unable to state the exact language of an
admission and are liable, by the omission or the changing of words, to convey a
false impression of the language used.” (Pittman v. Boiven (1967) 249
Cal.App.2d 207, 214 [57 Cal.Rptr. 319].)
• The need to give the cautionary instruction appears to apply to both civil and
criminal cases. (See People v. Livaditis (1992) 2 Cal.4th 759, 789 [9 Cal.Rptr.2d
72, 831 P.2d 297] (conc. opn. of Mosk, J.).)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Hearsay, §§ 91–94, 126
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 127
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 3.7–3.22
2 California Trial Guide, Unit 40, Hearsay, § 40.30 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.76 (Matthew
Bender)
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213. Adoptive Admissions
You have heard evidence that [name of declarant] made the following
statement: [describe statement]. You may consider that statement as
evidence against [name of party against whom statement was offered] only
if you find that all of the following conditions are true:
1. The statement was made to [name of party against whom statement
was offered] or made in [his/her/nonbinary pronoun] presence;
2. [Name of party against whom statement was offered] heard and
understood the statement;
3. [Name of party against whom statement was offered] would, under
all the circumstances, naturally have denied the statement if [he/
she/nonbinary pronoun] thought it was not true;
3. AND
4. [Name of party against whom statement was offered] could have
denied it but did not.
If you decide that any of these conditions are not true, you must not
consider for any purpose either the statement or [name of party against
whom statement was offered]’s response.
[You must not consider this evidence against any other party.]
New September 2003; Revised December 2012
Directions for Use
Under Evidence Code section 403(c), the court must instruct the jury to disregard
the evidence of an adoptive admission if it finds that the preliminary facts do not
exist.
For statements of a party opponent, see CACI No. 212, Statements of a Party
Opponent. Evasive conduct falls under this instruction rather than under CACI
No. 212.
Sources and Authority
• Determination of Preliminary Facts. Evidence Code section 403.
• Adoptive Admissions. Evidence Code section 1221.
• “When a person makes a statement in the presence of a party to an action under
circumstances that would normally call for a response if the statement were
untrue, the statement is admissible for the limited purpose of showing the party’s
reaction to it. His silence, evasion, or equivocation may be considered as a tacit
admission of the statements made in his presence.” (In re Estate of Neilson
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CACI No. 213 EVIDENCE
(1962) 57 Cal.2d 733, 746 [22 Cal.Rptr. 1, 371 P.2d 745].)
• In order for the hearsay evidence to be admissible, “it must have been shown
clearly that [the party] heard and understood the statement.” (Fisch v. Los
Angeles Metropolitan Transit Authority (1963) 219 Cal.App.2d 537, 540 [33
Cal.Rptr. 298].) There must also be evidence of some type of reaction to the
statement. (Ibid.) It is clear that the doctrine “does not apply if the party is in
such physical or mental condition that a reply could not reasonably be expected
from him.” (Southers v. Savage (1961) 191 Cal.App.2d 100, 104 [12 Cal.Rptr.
470].)
• “[T]here may be admissions other than statements made by the party himself;
that is, statements of another may in some circumstances be treated as
admissions of the party. The situations are (1) where the person who makes the
statement is in privity with the party against whom it is offered, as in the case of
agency, partnership, etc.; and (2) where the statement of the other is adopted by
the party as his own, either expressly or by conduct. Familiar examples of this
second situation are the admissions by silence, where declarations of third
persons made in the presence of a party give rise to admissions, the conduct of
the party in the face of the declaration constituting the adoption of the statement
to form an admission.” (In re Estate of Gaines (1940) 15 Cal.2d 255, 262 [100
P.2d 1055].)
• “The basis of the rule on admissions made in response to accusations is the fact
that human experience has shown that generally it is natural to deny an
accusation if a party considers himself innocent of negligence or wrongdoing.”
(Keller v. Key System Transit Lines (1954) 129 Cal.App.2d 593, 596 [277 P.2d
869].)
• If the statement is not accusatory, then the failure to respond is not an
admission. (Neilson, supra, 57 Cal.2d at p. 747; Gilbert v. City of Los Angeles
(1967) 249 Cal.App.2d 1006, 1008 [58 Cal.Rptr. 56].)
• Admissibility of this evidence depends upon whether (1) the statement was made
under circumstances that call for a reply, (2) whether the party understood the
statement, and (3) whether it could be inferred from his conduct that he adopted
the statement as an admission. (Gilbert, supra, 249 Cal.App.2d at p. 1009.)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Hearsay, §§ 103–106
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 3.23–3.30
Cotchett, California Courtroom Evidence, § 21.09 (Matthew Bender)
2 California Trial Guide, Unit 40, Hearsay, § 40.31 (Matthew Bender)
214. Reserved for Future Use
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215. Exercise of a Communication Privilege
[Name of party/witness] has an absolute right not to disclose what [he/she/
nonbinary pronoun] told [his/her/nonbinary pronoun]
[doctor/attorney/[other]] in confidence because the law considers this
information privileged. Do not consider, for any reason at all, the fact
that [name of party/witness] did not disclose what [he/she/nonbinary
pronoun] told [his/her/nonbinary pronoun] [doctor/attorney/[other]]. Do not
discuss that fact during your deliberations or let it influence your
decision in any way.
New September 2003; Revised December 2012
Directions for Use
This instruction must be given upon request, if appropriate and the court has
determined that the privilege has not been waived. (Evid. Code, § 913(b).)
Sources and Authority
• No Presumption on Exercise of Privilege. Evidence Code section 913(b).
• The comment to Evidence Code section 913 notes that this statute “may modify
existing California law as it applies in civil cases.” Specifically, the comment
notes that section 913 in effect overrules two Supreme Court cases: Nelson v.
Southern Pacific Co. (1937) 8 Cal.2d 648 [67 P.2d 682] and Fross v. Wotton
(1935) 3 Cal.2d 384 [44 P.2d 350]. The Nelson court had held that evidence of a
person’s exercise of the privilege against self-incrimination in a prior proceeding
may be shown for impeachment purposes if he or she testifies in a self-
exculpatory manner in a subsequent proceeding. Language in Fross indicated
that unfavorable inferences may be drawn in a civil case from a party’s claim of
the privilege against self-incrimination during the case itself.
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses, §§ 97–99
7 Witkin, California Procedure (5th ed. 2008) Trial, § 299
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 35.26–35.27
Cotchett, California Courtroom Evidence, § 18.09 (Matthew Bender)
3 California Trial Guide, Unit 51, Privileges, §§ 51.01–51.32 (Matthew Bender)
2 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 40,
Scope of Discovery, § 40-III
California Judges Benchbook: Civil Proceedings—Trial §§ 8.34, 8.41 (Cal CJER
2019)
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216. Exercise of Right Not to Incriminate Oneself (Evid. Code,
§ 913)
[Name of party/witness] has an absolute constitutional right not to give
testimony that might tend to incriminate [himself/herself/nonbinary
pronoun]. Do not consider, for any reason at all, the fact that [name of
party/witness] invoked the right not to testify. Do not discuss that fact
during your deliberations or let it influence your decision in any way.
New September 2003; Revised December 2012
Directions for Use
The privilege against self-incrimination may be asserted in a civil proceeding.
(Kastigar v. United States (1972) 406 U.S. 441, 444 [92 S.Ct. 1653, 32 L.Ed.2d
212]; People v. Merfeld (1997) 57 Cal.App.4th 1440, 1443 [67 Cal.Rptr.2d 759].)
Under California law, neither the court nor counsel may comment on the fact that a
witness has claimed a privilege, and the trier of fact may not draw any inference
from the refusal to testify as to the credibility of the witness or as to any matter at
issue in the proceeding. (Evid. Code, § 913(a); see People v. Doolin (2009) 45
Cal.4th 390, 441–442 [87 Cal.Rptr.3d 209, 198 P.3d 11].)
Therefore, the issue of a witness’s invocation of the Fifth Amendment right not to
self-incriminate is raised outside the presence of the jury, and the jury is not
informed of the matter. This instruction is intended for use if the circumstances
presented in a case result in the issue being raised in the presence of the jury and a
party adversely affected requests a jury instruction. (See Evid. Code, § 913(b).)
Sources and Authority
• No Presumption From Exercise of Fifth Amendment Privilege. Evidence Code
section 913.
• Privilege to Refuse to Disclose Incriminating Information. Evidence Code
section 940.
• “[I]n any proceeding, civil or criminal, a witness has the right to decline to
answer questions which may tend to incriminate him in criminal activity.”
(Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [151 Cal.Rptr. 653, 588 P.2d 793],
internal citation omitted.)
• “A defendant may not bring a civil action to a halt simply by invoking the
privilege against self-incrimination.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036,
1055 [151 Cal.Rptr.3d 65].)
• “[T]he privilege may not be asserted by merely declaring that an answer will
incriminate; it must be ‘evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious
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disclosure could result.’ ” (Troy v. Superior Court (1986) 186 Cal.App.3d 1006,
1010–1011 [231 Cal.Rptr. 108], internal citations omitted.)
• “The Fifth Amendment of the United States Constitution includes a provision
that ‘[no] person . . . shall be compelled in any criminal case to be a witness
against himself, . . . .’ Although the specific reference is to criminal cases, the
Fifth Amendment protection ‘has been broadly extended to a point where now it
is available even to a person appearing only as a witness in any kind of
proceeding where testimony can be compelled.’ ” (Brown v. Superior Court
(1986) 180 Cal.App.3d 701, 708 [226 Cal.Rptr. 10], citation and footnote
omitted.)
• “There is no question that the privilege against self-incrimination may be
asserted by civil defendants who face possible criminal prosecution based on the
same facts as the civil action. ‘All matters which are privileged against
disclosure upon the trial under the law of this state are privileged against
disclosure through any discovery procedure.’ ” (Brown, supra, 180 Cal.App.3d at
p. 708, internal citations omitted.)
• “California law, then, makes no distinction between civil and criminal litigation
concerning adverse inferences from a witness’s invocation of the privilege
against self-incrimination; under Evidence Code section 913, juries are forbidden
to make such inferences in both types of cases. No purpose is served, therefore,
in either type of trial by forcing a witness to exercise the privilege on the stand
in the jury’s presence, for . . . the court would then be ‘required, on request, to
instruct the jury not to draw the very inference [the party calling the witness]
sought to present to the jury.” (People v. Holloway (2004) 33 Cal. 4th 96, 131
[14 Cal.Rptr.3d 212, 91 P.3d 164], internal citations omitted.)
• “The privilege against self-incrimination is guaranteed by both the federal and
state Constitutions. As pointed out by the California Supreme Court, ‘two
separate and distinct testimonial privileges’ exist under this guarantee. First, a
defendant in a criminal case ‘has an absolute right not to be called as a witness
and not to testify.’ Second, ‘in any proceeding, civil or criminal, a witness has
the right to decline to answer questions which may tend to incriminate him [or
her] in criminal activity.’ ” (People v. Merfeld, supra, 57 Cal.App.4th at p. 1443,
internal citations omitted.)
• “The jury may not draw any inference from a witness’s invocation of a privilege.
Upon request, the trial court must so instruct jurors. ‘To avoid the potentially
prejudicial impact of having a witness assert the privilege against self-
incrimination before the jury, we have in the past recommended that, in
determining the propriety of the witness’s invocation of the privilege, the trial
court hold a pretestimonial hearing outside the jury’s presence.’ Such a
procedure makes sense under the appropriate circumstances. If there is a dispute
about whether a witness may legitimately rely on the Fifth Amendment privilege
against self-incrimination to avoid testifying, that legal question should be
resolved by the court. Given the court’s ruling and the nature of the potential
testimony, the witness may not be privileged to testify at all, or counsel may
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elect not to call the witness as a matter of tactics.” (People v. Doolin, supra, 45
Cal.4th at pp. 441–442, original italics, internal citations omitted.)
• “Once a court determines a witness has a valid Fifth Amendment right not to
testify, it is, of course, improper to require him to invoke the privilege in front
of a jury; such a procedure encourages inappropriate speculation on the part of
jurors about the reasons for the invocation. An adverse inference, damaging to
the defense, may be drawn by jurors despite the possibility the assertion of
privilege may be based upon reasons unrelated to guilt.” (Victaulic Co. v.
American Home Assurance Co. (2018) 20 Cal.App.5th 948, 981 [229 Cal.Rptr.3d
545].)
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 98
5 Levy et al., California Torts, Ch. 72, Discovery, §§ 72.20, 72.30 (Matthew Bender)
Cotchett, California Courtroom Evidence, § 18.09 (Matthew Bender)
3 California Trial Guide, Unit 51, Privileges, § 51.32 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 191, Discovery: Privileges and
Other Discovery Limitations, § 191.30 et seq. (Matthew Bender)
1 California Deposition and Discovery Practice, Ch. 21, Privileged Matters in
General, § 21.20, Ch. 22, Privilege Against Self-Incrimination (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.34 (Cal CJER 2019)
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217. Evidence of Settlement
You have heard evidence that there was a settlement between [insert
names of settling parties]. You must not consider this settlement to
determine responsibility for any harm. You may consider this evidence
only to decide whether [insert name of witness who settled] is biased or
prejudiced and whether [his/her/nonbinary pronoun] testimony is
believable.
New September 2003
Directions for Use
Evidence of prior settlement is not automatically admissible: “Even if it appears that
a witness could have been influenced in his testimony by the payment of money or
the obtaining of a dismissal, the party resisting the admission of such evidence may
still appeal to the court’s discretion to exclude it under section 352 of the code.”
(Granville v. Parsons (1968) 259 Cal.App.2d 298, 305 [66 Cal.Rptr. 149].)
Sources and Authority
• Evidence of Settlement. Evidence Code section 1152(a).
• “While evidence of a settlement agreement is inadmissible to prove liability, it is
admissible to show bias or prejudice of an adverse party. Relevant evidence
includes evidence relevant to the credibility of a witness.” (Moreno v. Sayre
(1984) 162 Cal.App.3d 116, 126 [208 Cal.Rptr. 444], internal citations omitted.)
• “[E]vidence of a plaintiff’s settlement with one or more defendants is admissible
at trial to prove witness bias and to prevent collusion.” (Diamond v. Reshko
(2015) 239 Cal.App.4th 828, 843 [191 Cal.Rptr.3d 438].)
• “[A] term in a settlement agreement requiring the settling defendant to stay in
the case during trial is not per se improper, but the settling defendant’s position
should be revealed to the court and jury to avoid committing a fraud on the
court, and to permit the trier of fact to properly weigh the settling defendant’s
testimony.” (Diamond, supra, 239 Cal.App.4th at p. 844.)
• “[T]he good faith settlement determination did not limit the trial court’s authority
to admit evidence of that settlement at trial. To the contrary, . . . the decision
whether to admit evidence of the settlement was for the trial court to make.”
(Diamond, supra, 239 Cal.App.4th at p. 846.)
• “The bias inherent in a settling defendant’s realignment with the plaintiff’s
interest may or may not affect the conduct of the plaintiff or settling defendant at
trial, but that is a question for the jury to decide.” (Diamond, supra, 239
Cal.App.4th at p. 848.)
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Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 145–153
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.15–34.24
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, § 50.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.68 (Matthew
Bender)
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218. Statements Made to Physician (Previously Existing
Condition)
[Insert name of health-care provider] has testified that [insert name of
patient] made statements to [him/her/nonbinary pronoun] about [name of
patient]’s medical history. These statements helped [name of health-care
provider] diagnose the patient’s condition. You can use these statements
to help you examine the basis of [name of health-care provider]’s opinion.
You cannot use them for any other purpose.
[However, a statement by [name of patient] to [name of health-care
provider] about [his/her/nonbinary pronoun] current medical condition
may be considered as evidence of that medical condition.]
New September 2003; Revised June 2006, May 2020
Directions for Use
This instruction does not apply to, and should not be used for, a statement of the
patient’s then-existing physical sensation, mental feeling, pain, or bodily health.
Such statements are admissible as an exception to the hearsay rule under Evidence
Code section 1250. This instruction also does not apply to statements of a patient
regarding a prior mental or physical state if the patient is unavailable as a witness.
(Evid. Code, § 1251.)
This instruction also does not apply to, and should not be used for, statements of a
party that are offered into evidence by an opposing party. Such statements are
admissible as an exception to the hearsay rule under Evidence Code section 1220.
See CACI No. 212, Statements of a Party Opponent.
Sources and Authority
• Statements of Party. Evidence Code section 1220.
• Statements pointing to the cause of a physical condition may be admissible if
they are made by a patient to a physician. The statement must be required for
proper diagnosis and treatment and is admissible only to show the basis of the
physician’s medical opinion. (People v. Wilson (1944) 25 Cal.2d 341, 348 [153
P.2d 720]; Johnson v. Aetna Life Insurance Co. (1963) 221 Cal.App.2d 247, 252
[34 Cal.Rptr. 484]; Willoughby v. Zylstra (1935) 5 Cal.App.2d 297, 300–301 [42
P.2d 685].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Hearsay, § 197
2 California Trial Guide, Unit 40, Hearsay, § 40.42 (Matthew Bender)
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219. Expert Witness Testimony
During the trial you heard testimony from expert witnesses. The law
allows an expert to state opinions about matters in the expert’s field of
expertise even if the expert has not witnessed any of the events involved
in the trial.
You do not have to accept an expert’s opinion. As with any other
witness, it is up to you to decide whether you believe the expert’s
testimony and choose to use it as a basis for your decision. You may
believe all, part, or none of an expert’s testimony. In deciding whether to
believe an expert’s testimony, you should consider:
a. The expert’s training and experience;
b. The facts the expert relied on; and
c. The reasons for the expert’s opinion.
New September 2003; Revised May 2020
Directions for Use
This instruction should not be given for expert witness testimony on the standard of
care in professional malpractice cases if the testimony is uncontradicted.
Uncontradicted testimony of an expert witness on the standard of care in a
professional malpractice case is conclusive. (Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 632–633 [85 Cal.Rptr.2d 386]; Conservatorship of McKeown
(1994) 25 Cal.App.4th 502, 509 [30 Cal.Rptr.2d 542]; Lysick v. Walcom (1968) 258
Cal.App.2d 136, 156 [65 Cal.Rptr. 406].) In all other cases, the jury may reject
expert testimony, provided that the jury does not act arbitrarily. (McKeown, supra,
25 Cal.App.4th at p. 509.)
Do not use this instruction in eminent domain and inverse condemnation cases. (See
Aetna Life and Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 877
[216 Cal.Rptr. 831]; CACI No. 3515, Valuation Testimony.)
For an instruction on hypothetical questions, see CACI No. 220, Experts—Questions
Containing Assumed Facts. For an instruction on conflicting expert testimony, see
CACI No. 221, Conflicting Expert Testimony.
Sources and Authority
• Qualification as Expert. Evidence Code section 720(a).
• “ ‘A properly qualified expert may offer an opinion relating to a subject that is
beyond common experience, if that expert’s opinion will assist the trier of fact.’
‘However, even when the witness qualifies as an expert, he or she does not
possess a carte blanche to express any opinion within the area of expertise.
[Citation.] For example, an expert’s opinion based on assumptions of fact
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without evidentiary support [citation], or on speculative or conjectural factors
[citation], has no evidentiary value [citation] and may be excluded from
evidence. [Citations.] Similarly, when an expert’s opinion is purely conclusory
because unaccompanied by a reasoned explanation connecting the factual
predicates to the ultimate conclusion, that opinion has no evidentiary value
because an “expert opinion is worth no more than the reasons upon which it
rests.” ’ ‘An expert who gives only a conclusory opinion does not assist the jury
to determine what occurred, but instead supplants the jury by declaring what
occurred.’ ” (Property California SCJLW One Corp. v. Leamy (2018) 25
Cal.App.5th 1155, 1163 [236 Cal.Rptr.3d 500], internal citation omitted.)
• “Under Evidence Code section 720, subdivision (a), a person is qualified to
testify as an expert if he or she ‘has special knowledge, skill, experience,
training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates.’ ‘[T]he determinative issue in each case must be
whether the witness has sufficient skill or experience in the field so that his
testimony would be likely to assist the jury in the search for the truth . . . .
[Citation.] Where a witness has disclosed sufficient knowledge, the question of
the degree of knowledge goes more to the weight of the evidence than its
admissibility. [Citation.]’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969
[191 Cal.Rptr.3d 766].)
• The “credibility of expert witnesses is a matter for the jury after proper
instructions from the court.” (Williams v. Volkswagenwerk Aktiengesellschaft
(1986) 180 Cal.App.3d 1244, 1265 [226 Cal.Rptr. 306].)
• “[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court
acts as a gatekeeper to exclude expert opinion testimony that is (1) based on
matter of a type on which an expert may not reasonably rely, (2) based on
reasons unsupported by the material on which the expert relies, or (3)
speculative. Other provisions of law, including decisional law, may also provide
reasons for excluding expert opinion testimony. [¶] But courts must also be
cautious in excluding expert testimony. The trial court’s gatekeeping role does
not involve choosing between competing expert opinions.” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771−772 [149
Cal.Rptr.3d 614, 288 P.3d 1237], footnote omitted.)
• “ ‘Generally, the opinion of an expert is admissible when it is “[r]elated to a
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact . . . .” [Citations.] Also, “[t]estimony in the
form of an opinion that is otherwise admissible is not objectionable because it
embraces the ultimate issue to be decided by the trier of fact.” [Citation.]
However, “ ‘Where the jury is just as competent as the expert to consider and
weigh the evidence and draw the necessary conclusions, then the need for expert
testimony evaporates.’ ” ’ Expert testimony will be excluded ‘ “ ‘when it would
add nothing at all to the jury’s common fund of information, i.e., when ‘the
subject of inquiry is one of such common knowledge that men of ordinary
education could reach a conclusion as intelligently as the witness.” ’ ” ’ ” (Burton
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v. Sanner (2012) 207 Cal.App.4th 12, 19 [142 Cal.Rptr.3d 782], internal citations
omitted.)
• Under Evidence Code section 801(a), expert witness testimony “must relate to a
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.” (New v. Consolidated Rock Products Co.
(1985) 171 Cal.App.3d 681, 692 [217 Cal.Rptr. 522].)
• Expert witnesses are qualified by special knowledge to form opinions on facts
that they have not personally witnessed. (Manney v. Housing Authority of The
City of Richmond (1947) 79 Cal.App.2d 453, 460 [180 P.2d 69].)
• “Although a jury may not arbitrarily or unreasonably disregard the testimony of
an expert, it is not bound by the expert’s opinion. Instead, it must give to each
opinion the weight which it finds the opinion deserves. So long as it does not do
so arbitrarily, a jury may entirely reject the testimony of a plaintiff’s expert, even
where the defendant does not call any opposing expert and the expert testimony
is not contradicted.” (Howard, supra, 72 Cal.App.4th at p. 633, citations
omitted.)
• “When any expert relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to support the expert’s
opinion, the statements are hearsay. It cannot logically be maintained that the
statements are not being admitted for their truth.” (People v. Sanchez (2016) 63
Cal.4th 665, 686 [204 Cal.Rptr.3d 102, 374 P.3d 320].)
• “Any expert may still rely on hearsay in forming an opinion, and may tell the
jury in general terms that he did so. Because the jury must independently
evaluate the probative value of an expert’s testimony, Evidence Code section 802
properly allows an expert to relate generally the kind and source of the ‘matter’
upon which his opinion rests. A jury may repose greater confidence in an expert
who relies upon well-established scientific principles. It may accord less weight
to the views of an expert who relies on a single article from an obscure journal
or on a lone experiment whose results cannot be replicated. There is a distinction
to be made between allowing an expert to describe the type or source of the
matter relied upon as opposed to presenting, as fact, case-specific hearsay that
does not otherwise fall under a statutory exception.” (People v. Sanchez, supra,
63 Cal.4th at pp. 685–686, original italics.)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 26–44
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 29.18–29.55
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.04 (Matthew Bender)
3A California Trial Guide, Unit 60, Opinion Testimony, § 60.05 (Matthew Bender)
California Products Liability Actions, Ch. 4, The Role of the Expert, § 4.03
(Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.70, 551.113
(Matthew Bender)
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220. Experts—Questions Containing Assumed Facts
The law allows expert witnesses to be asked questions that are based on
assumed facts. These are sometimes called “hypothetical questions.”
In determining the weight to give to the expert’s opinion that is based on
the assumed facts, you should consider whether the assumed facts are
true.
New September 2003
Directions for Use
Juries may be instructed that they should weigh an expert witness’s response to a
hypothetical question based on their assessment of the accuracy of the assumed facts
in the hypothetical question. (Treadwell v. Nickel (1924) 194 Cal. 243, 263–264
[228 P. 25].)
For an instruction on expert witnesses generally, see CACI No. 219, Expert Witness
Testimony. For an instruction on conflicting expert testimony, see CACI No. 221,
Conflicting Expert Testimony.
Sources and Authority
• The value of an expert’s opinion depends on the truth of the facts assumed.
(Richard v. Scott (1978) 79 Cal.App.3d 57, 63 [144 Cal.Rptr. 672].)
• “Generally, an expert may render opinion testimony on the basis of facts given
‘in a hypothetical question that asks the expert to assume their truth.’ ” (People
v. Vang (2011) 52 Cal.4th 1038, 1045 [132 Cal.Rptr.3d 373, 262 P.3d 581].)
• Hypothetical questions must be based on facts that are supported by the
evidence: “It was decided early in this state that a hypothetical question to an
expert must be based upon facts shown by the evidence and that the appellate
court will place great reliance in the trial court’s exercise of its discretion in
passing upon a sufficiency of the facts as narrated.” (Hyatt v. Sierra Boat Co.
(1978) 79 Cal.App.3d 325, 339 [145 Cal.Rptr. 47].)
• “A hypothetical question need not encompass all of the evidence. ‘It is true that
“it is not necessary that the question include a statement of all the evidence in
the case. The statement may assume facts within the limits of the evidence, not
unfairly assembled, upon which the opinion of the expert is required, and
considerable latitude must be allowed in the choice of facts as to the basis upon
which to frame a hypothetical question.” On the other hand, the expert’s opinion
may not be based “on assumptions of fact without evidentiary support [citation],
or on speculative or conjectural factors . . . .” ’ ” (People v. Vang, supra, 52
Cal.4th at p. 1046, internal citation omitted.)
• Hypothetical questions should not omit essential material facts. (Coe v. State
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Farm Mutual Automobile Insurance Co. (1977) 66 Cal.App.3d 981, 995 [136
Cal.Rptr. 331].)
• The jury should not be instructed that they are entitled to reject the entirety of
an expert’s opinion if a hypothetical assumption has not been proven. Rather, the
jury should be instructed “to determine the effect of that failure of proof on the
value and weight of the expert opinion based on that assumption.” (Lysick v.
Walcom (1968) 258 Cal.App.2d 136, 156 [65 Cal.Rptr. 406].)
• “The jury still plays a critical role in two respects. First, it must decide whether
to credit the expert’s opinion at all. Second, it must determine whether the facts
stated in the hypothetical questions are the actual facts, and the significance of
any difference between the actual facts and the facts stated in the questions.”
(People v. Vang, supra, 52 Cal.4th at pp. 1049–1050.)
• “[Experts] . . . can rely on background information accepted in their field of
expertise under the traditional latitude given by the Evidence Code. They can
rely on information within their personal knowledge, and they can give an
opinion based on a hypothetical including case-specific facts that are properly
proven. They may also rely on nontestimonial hearsay properly admitted under a
statutory hearsay exception.” (People v. Sanchez (2016) 63 Cal.4th 665, 685 [204
Cal.Rptr.3d 102, 374 P.3d 320].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 208–215
Jefferson, California Evidence Benchbook (3d ed. 1997) § 29.43, pp. 609–610
3A California Trial Guide, Unit 60, Opinion Testimony, §§ 60.05, 60.50–60.51
(Matthew Bender)
California Products Liability Actions, Ch. 4, The Role of the Expert, § 4.03
(Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.70 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.92 (Cal CJER 2019)
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221. Conflicting Expert Testimony
If the expert witnesses disagreed with one another, you should weigh
each opinion against the others. You should examine the reasons given
for each opinion and the facts or other matters that each witness relied
on. You may also compare the experts’ qualifications.
New September 2003
Directions for Use
Unless the issue is one that can be resolved only with expert testimony, the jury
should not be instructed that they must accept the entire testimony of the expert
whose testimony appears to be entitled to greater weight. (Santa Clara County
Flood Control and Water Conservation Dist. v. Freitas (1960) 177 Cal.App.2d 264,
268–269 [2 Cal.Rptr. 129].)
For an instruction on expert witnesses generally, see CACI No. 219, Expert Witness
Testimony. For an instruction on hypothetical questions, see CACI No. 220,
Experts—Questions Containing Assumed Facts.
Sources and Authority
• “[C]redibility of expert witnesses is a matter for the jury after proper instructions
from the court.” (Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180
Cal.App.3d 1244, 1265 [226 Cal.Rptr. 306].)
• “[W]e rely upon the rule of Sargon [Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747 [149 Cal.Rptr.3d 614, 288 P.3d
1237]] that although trial courts ‘have a substantial “gatekeeping” responsibility’
in evaluating proposed expert opinion, the gate tended is not a partisan
checkpoint.” (Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 492
[199 Cal.Rptr.3d 583], internal citation omitted.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 292
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.70 (Matthew
Bender)
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222. Evidence of Sliding-Scale Settlement
You have heard evidence that there was a settlement agreement between
[name of settling defendant] and [name of plaintiff].
Under this agreement, the amount of money that [name of settling
defendant] will have to pay to [name of plaintiff] will depend on the
amount of money that [name of plaintiff] receives from [name of
nonsettling defendant] at trial. The more money that [name of plaintiff]
might receive from [name of nonsettling defendant], the less that [name of
settling defendant] will have to pay under the agreement.
You may consider evidence of the settlement only to decide whether
[name of settling defendant/name of witness] [, who testified on behalf of
[name of settling defendant],] is biased or prejudiced and whether [his/her/
nonbinary pronoun] testimony is believable.
New April 2007; Revised June 2016
Directions for Use
Use this instruction for cases involving sliding scale or “Mary Carter” settlement
agreements if a party who settled appears at trial as a witness. A “Mary Carter”
agreement calls for the settling defendant to participate in the trial on the plaintiff’s
behalf, and provides for a settling defendant to be credited for amounts the plaintiff
recovers from nonsettling defendants. It is secret and raises concerns of collusion
and the potential for fraud. The interests of the parties are realigned in a manner not
apparent to the trier of fact. (Diamond v. Reshko (2015) 239 Cal.App.4th 828, 843,
fn. 7 [191 Cal.Rptr.3d 438].)
The court must give this instruction on the motion of any party unless it finds that
disclosure will create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury. (Code Civ. Proc., § 877.5(a)(2).)
If the settling defendant is an entity, insert the name of the witness who testified on
behalf of the entity and include the bracketed language in the third paragraph.
See CACI No. 217, Evidence of Settlement. See also CACI No. 3926, Settlement
Deduction.
Sources and Authority
• Evidence of Settlement. Code of Civil Procedure section 877.5(a)(2).
• “[W]hen a defendant is a party to a sliding scale settlement, which is also called
a ‘Mary Carter’ agreement, that agreement must be disclosed to the jury if the
settling defendant testifies at trial, unless the court finds that the disclosure will
create a substantial danger of undue prejudice.” (Diamond, supra, 239
Cal.App.4th at p. 843.)
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• Evidence of a settlement agreement is admissible to show bias or prejudice of an
adverse party. Relevant evidence includes evidence relevant to the credibility of
a witness. (Moreno v. Sayre (1984) 162 Cal.App.3d 116, 126 [208 Cal.Rptr.
444].)
• Evidence of a prior settlement is not automatically admissible. “Even if it
appears that a witness could have been influenced in his testimony by the
payment of money or the obtaining of a dismissal, the party resisting the
admission of such evidence may still appeal to the court’s discretion to exclude
it under section 352 of the code.” (Granville v. Parsons (1968) 259 Cal.App.2d
298, 305 [66 Cal.Rptr. 149].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 211
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.27
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.73[10] (Matthew Bender)
46 California Forms of Pleading and Practice, Ch. 520, Settlement and Release,
§ 520.16[3] (Matthew Bender)
3 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 57,
Settlement and Release, § 57-V
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223. Opinion Testimony of Lay Witness
A witness [who was not testifying as an expert] gave an opinion during
the trial. You may, but are not required to, accept that opinion. You may
give the opinion whatever weight you think is appropriate.
Consider the extent of the witness’s opportunity to perceive the matters
on which the opinion is based, the reasons the witness gave for the
opinion, and the facts or information on which the witness relied in
forming that opinion. You must decide whether information on which the
witness relied was true and accurate. You may disregard all or any part
of an opinion that you find unbelievable, unreasonable, or unsupported
by the evidence.
New April 2008
Directions for Use
Give the bracketed phrase in the first sentence regarding the witness not testifying
as an expert if an expert witness also testified in the case.
Sources and Authority
• Opinion Testimony of Lay Witness. Evidence Code section 800.
• Foundation for Opinion Testimony of Lay Witness. Evidence Code section 802.
• Character Evidence. Evidence Code section 1100.
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 3–25
Wegner et al., California Practice Guide: Civil Trial and Evidence, Ch. 8C-H,
Opinion Evidence, ¶¶ 8:643–8:681 (The Rutter Group)
Jefferson’s California Evidence Benchbook (Cont.Ed.Bar 3d ed.) §§ 29.1–29.17
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.70 (Matthew
Bender)
1 Cotchett, California Courtroom Evidence, Ch. 17, Nonexpert and Expert Opinion,
§ 17.01 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.72 (Cal CJER 2019)
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224. Testimony of Child
You have heard testimony from a witness who is [ ] years old. As
with any other witness, you must decide whether the child gave truthful
and accurate testimony.
In evaluating a child’s testimony, you should consider all of the factors
surrounding that testimony, including the child’s age and ability to
perceive, understand, remember, and communicate.
You should not discount or distrust testimony just because a witness is a
child.
New April 2008
Sources and Authority
• Minors Qualified to Testify. Evidence Code section 700.
• Evaluation of Child’s Testimony in Criminal Trial. Penal Code section 1127f.
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation, §§ 13, 100, 232
Wegner et al., California Practice Guide: Civil Trial and Evidence, Ch. 8C-A,
Testimony, ¶¶ 8:228–8:233 (The Rutter Group)
Jefferson’s California Evidence Benchbook (Cont.Ed.Bar 3d ed.) § 26.2
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.111, 551.113,
551.122 (Matthew Bender)
1 Cotchett, California Courtroom Evidence, Ch. 16, Competency, Oath,
Confrontation, Experts, Interpreters, Credibility, and Hypnosis, § 16.01 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.105 (Cal CJER 2019)
225–299. Reserved for Future Use
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Copyright Judicial Council of California
CONTRACTS
300. Breach of Contract—Introduction
301. Third-Party Beneficiary
302. Contract Formation—Essential Factual Elements
303. Breach of Contract—Essential Factual Elements
304. Oral or Written Contract Terms
305. Implied-in-Fact Contract
306. Unformalized Agreement
307. Contract Formation—Offer
308. Contract Formation—Revocation of Offer
309. Contract Formation—Acceptance
310. Contract Formation—Acceptance by Silence
311. Contract Formation—Rejection of Offer
312. Substantial Performance
313. Modification
314. Interpretation—Disputed Words
315. Interpretation—Meaning of Ordinary Words
316. Interpretation—Meaning of Technical Words
317. Interpretation—Construction of Contract as a Whole
318. Interpretation—Construction by Conduct
319. Interpretation—Reasonable Time
320. Interpretation—Construction Against Drafter
321. Existence of Condition Precedent Disputed
322. Occurrence of Agreed Condition Precedent
323. Waiver of Condition Precedent
324. Anticipatory Breach
325. Breach of Implied Covenant of Good Faith and Fair Dealing—Essential
Factual Elements
326. Assignment Contested
327. Assignment Not Contested
328. Breach of Implied Duty to Perform With Reasonable Care—Essential Factual
Elements
329. Reserved for Future Use
330. Affirmative Defense—Unilateral Mistake of Fact
331. Affirmative Defense—Bilateral Mistake
332. Affirmative Defense—Duress
333. Affirmative Defense—Economic Duress
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334. Affirmative Defense—Undue Influence
335. Affirmative Defense—Fraud
336. Affirmative Defense—Waiver
337. Affirmative Defense—Novation
338. Affirmative Defense—Statute of Limitations
339–349. Reserved for Future Use
350. Introduction to Contract Damages
351. Special Damages
352. Loss of Profits—No Profits Earned
353. Loss of Profits—Some Profits Earned
354. Owner’s/Lessee’s Damages for Breach of Contract to Construct Improvements
on Real Property
355. Obligation to Pay Money Only
356. Buyer’s Damages for Breach of Contract for Sale of Real Property (Civ.
Code, § 3306)
357. Seller’s Damages for Breach of Contract to Purchase Real Property
358. Mitigation of Damages
359. Present Cash Value of Future Damages
360. Nominal Damages
361. Reliance Damages
362–369. Reserved for Future Use
370. Common Count: Money Had and Received
371. Common Count: Goods and Services Rendered
372. Common Count: Open Book Account
373. Common Count: Account Stated
374. Common Count: Mistaken Receipt
375. Restitution From Transferee Based on Quasi-Contract or Unjust Enrichment
376–379. Reserved for Future Use
380. Agreement Formalized by Electronic Means—Uniform Electronic
Transactions Act (Civ. Code, § 1633.1 et seq.)
381–399. Reserved for Future Use
VF-300. Breach of Contract
VF-301. Breach of Contract—Affirmative Defense—Unilateral Mistake of Fact
VF-302. Breach of Contract—Affirmative Defense—Duress
VF-303. Breach of Contract—Contract Formation at Issue
VF-304. Breach of Implied Covenant of Good Faith and Fair Dealing
VF-305–VF-399. Reserved for Future Use
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300. Breach of Contract—Introduction
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] and [name of
defendant] entered into a contract for [insert brief summary of alleged
contract].
[Name of plaintiff] claims that [name of defendant] breached this contract
by [briefly state the alleged breach].
[Name of plaintiff] also claims that [name of defendant]’s breach of this
contract caused harm to [name of plaintiff] for which [name of defendant]
should pay.
[Name of defendant] denies [insert denial of any of the above claims]. [Name
of defendant] also claims [insert affırmative defense].
New September 2003; Revised December 2007
Directions for Use
This instruction is designed to introduce the jury to the issues involved in the case.
It should be read before the instructions on the substantive law.
Sources and Authority
• The Supreme Court has observed that “[c]ontract and tort are different branches
of law. Contract law exists to enforce legally binding agreements between
parties; tort law is designed to vindicate social policy.” (Applied Equipment
Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 514 [28 Cal.Rptr.2d
475, 869 P.2d 454].)
• “The differences between contract and tort give rise to distinctions in assessing
damages and in evaluating underlying motives for particular courses of conduct.
Contract damages seek to approximate the agreed-upon performance . . . and
are generally limited to those within the contemplation of the parties when the
contract was entered into or at least reasonably foreseeable by them at that time;
consequential damages beyond the expectations of the parties are not
recoverable.” (Applied Equipment Corp., supra, 7 Cal.4th at p. 515, internal
citations omitted.)
• Certain defenses are decided as questions of law, not as questions of fact. These
defenses include frustration of purpose, impossibility, and impracticability.
(Oosten v. Hay Haulers Dairy Employees and Helpers Union (1955) 45 Cal.2d
784, 788 [291 P.2d 17]; Mitchell v. Ceazan Tires, Ltd. (1944) 25 Cal.2d 45, 48
[153 P.2d 53]; Autry v. Republic Productions, Inc. (1947) 30 Cal.2d 144, 157
[180 P.2d 888]; Glen Falls Indemnity Co. v. Perscallo (1950) 96 Cal.App.2d
799, 802 [216 P.2d 567].)
• “Defendant contends that frustration is a question of fact resolved in its favor by
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the trial court. The excuse of frustration, however, like that of impossibility, is a
conclusion of law drawn by the court from the facts of a given case . . . .”
(Mitchell, supra, 25 Cal.2d at p. 48, italics added.)
• Estoppel is a “nonjury fact question to be determined by the trial court in
accordance with applicable law.” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum
Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35 Cal.Rptr.2d 515].)
• “A settlement agreement is a contract, and the legal principles which apply to
contracts generally apply to settlement contracts.” (Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 789 [249 Cal.Rptr.3d 295, 444 P.3d 97].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 872–892
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.50
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.10 et seq. (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
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301. Third-Party Beneficiary
[Name of plaintiff] is not a party to the contract. However, [name of
plaintiff] may be entitled to damages for breach of contract if [he/she/
nonbinary pronoun/it] proves that a motivating purpose of [names of the
contracting parties] was for [name of plaintiff] to benefit from their
contract.
You should consider all of the circumstances under which the contract
was made. It is not necessary for [name of plaintiff] to have been named
in the contract.
New September 2003; Revised November 2019
Directions for Use
The right of a third-party beneficiary to enforce a contract might not be a question
for the jury to decide. Third-party beneficiary status may be determined as a
question of law if there is no conflicting extrinsic evidence. (See, e.g., Kalmanovitz
v. Bitting (1996) 43 Cal.App.4th 311, 315 [50 Cal.Rptr.2d 332].)
Among the elements that the court must consider in deciding whether to allow a
case to go forward is whether the third party would in fact benefit from the contract.
(Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 829–830 [243 Cal.Rptr.3d 299,
434 P.3d 124].) If the court decides that this determination depends on resolution of
a question of fact, add this element as a second element that the plaintiff must prove
in addition to motivating purpose.
Sources and Authority
• Contract for Benefit of Third Person. Civil Code section 1559.
• “While it is not necessary that a third party be specifically named, the
contracting parties must clearly manifest their intent to benefit the third party.
‘The fact that [a third party] is incidentally named in the contract, or that the
contract, if carried out according to its terms, would inure to his benefit, is not
sufficient to entitle him to demand its fulfillment. It must appear to have been
the intention of the parties to secure to him personally the benefit of its
provisions.’ ” (Kalmanovitz, supra, 43 Cal.App.4th at p. 314, original italics,
internal citation omitted.)
• “ ‘It is sufficient if the claimant belongs to a class of persons for whose benefit it
was made. [Citation.] A third party may qualify as a contract beneficiary where
the contracting parties must have intended to benefit that individual, an intent
which must appear in the terms of the agreement. [Citation.]’ ” (Brinton v.
Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 558 [90 Cal.Rptr.2d
469].)
• “Insofar as intent to benefit a third person is important in determining his right
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to bring an action under a contract, it is sufficient that the promisor must have
understood that the promisee had such intent. No specific manifestation by the
promisor of an intent to benefit the third person is required.” (Lucas v. Hamm
(1961) 56 Cal.2d 583, 591 [15 Cal.Rptr. 821, 364 P.2d 685].)
• “[A] review of this court’s third party beneficiary decisions reveals that our court
has carefully examined the express provisions of the contract at issue, as well as
all of the relevant circumstances under which the contract was agreed to, in
order to determine not only (1) whether the third party would in fact benefit
from the contract, but also (2) whether a motivating purpose of the contracting
parties was to provide a benefit to the third party, and (3) whether permitting a
third party to bring its own breach of contract action against a contracting party
is consistent with the objectives of the contract and the reasonable expectations
of the contracting parties. All three elements must be satisfied to permit the third
party action to go forward.” (Goonewardene, supra, 6 Cal.5th at pp. 829–830.)
• “Because of the ambiguous and potentially confusing nature of the term ‘intent’,
this opinion uses the term ‘motivating purpose’ in its iteration of this element to
clarify that the contracting parties must have a motivating purpose to benefit the
third party, and not simply knowledge that a benefit to the third party may
follow from the contract.” (Goonewardene, supra, 6 Cal.5th at p. 830, internal
citation omitted.)
• “[The third] element calls for a judgment regarding the potential effect that
permitting third party enforcement would have on the parties’ contracting goals,
rather than a determination whether the parties actually anticipated third party
enforcement at the time the contract was entered into.” (Goonewardene, supra, 6
Cal.5th at p. 831.)
• “Section 1559 of the Civil Code, which provides for enforcement by a third
person of a contract made ‘expressly’ for his benefit, does not preclude this
result. The effect of the section is to exclude enforcement by persons who are
only incidentally or remotely benefited.” (Lucas, supra, 56 Cal.2d at p. 590.)
• “Whether a third party is an intended beneficiary or merely an incidental
beneficiary to the contract involves construction of the parties’ intent, gleaned
from reading the contract as a whole in light of the circumstances under which it
was entered. [Citation.]” (Jones v. Aetna Casualty & Surety Co. (1994) 26
Cal.App.4th 1717, 1725 [33 Cal.Rptr.2d 291].)
• “[A] third party’s rights under the third party beneficiary doctrine may arise
under an oral as well as a written contract . . . .” (Goonewardene, supra, 6
Cal.5th at p. 833.)
• “In place of former section 133, the Second Restatement inserted section 302:
‘(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a
promise is an intended beneficiary if recognition of a right to performance in the
beneficiary is appropriate to effectuate the intention of the parties and either
[para. ] (a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or [para. ] (b) the circumstances
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indicate that the promisee intends to give the beneficiary the benefit of the
promised performance. [para. ] (2) An incidental beneficiary is a beneficiary who
is not an intended beneficiary.’ ” (Outdoor Servs. v. Pabagold (1986) 185
Cal.App.3d 676, 684 [230 Cal.Rptr. 73].)
• “[T]he burden is upon [plaintiff] to prove that the performance he seeks was
actually promised. This is largely a question of interpretation of the written
contract.” (Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 436 [204
Cal.Rptr. 435, 682 P.2d 1100].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 705–726
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.83,
140.103, 140.131 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.132 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.11 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 19, Seeking or
Opposing Recovery As Third Party Beneficiary of Contract, 19.03–19.06
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302. Contract Formation—Essential Factual Elements
[Name of plaintiff] claims that the parties entered into a contract. To
prove that a contract was created, [name of plaintiff] must prove all of
the following:
1. That the contract terms were clear enough that the parties could
understand what each was required to do;
2. That the parties agreed to give each other something of value [a
promise to do something or not to do something may have value];
and
3. That the parties agreed to the terms of the contract.
[When you examine whether the parties agreed to the terms of the
contract, ask yourself if, under the circumstances, a reasonable person
would conclude, from the words and conduct of each party, that there
was an agreement. You may not consider the parties’ hidden intentions.]
If [name of plaintiff] did not prove all of the above, then a contract was
not created.
New September 2003; Revised October 2004, June 2011, June 2014
Directions for Use
This instruction should only be given if the existence of a contract is contested. At
other times, the parties may be contesting only a limited number of contract
formation issues. Also, some of these issues may be decided by the judge as a
matter of law. Read the bracketed paragraph only if element 3 is read.
The elements regarding legal capacity and legal purpose are omitted from this
instruction because these issues are not likely to be before the jury. If legal capacity
or legal purpose is factually disputed then this instruction should be amended to add
that issue as an element. Regarding legal capacity, the element could be stated as
follows: “That the parties were legally capable of entering into a contract.”
Regarding legal purpose, the element could be stated as follows: “That the contract
had a legal purpose.”
The final element of this instruction would be given before instructions on offer and
acceptance. If neither offer nor acceptance is contested, then this element of the
instruction will not need to be given to the jury.
Sources and Authority
• Essential Elements of Contract. Civil Code section 1550.
• Who May Contract. Civil Code section 1556.
• Consent. Civil Code section 1565.
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• Mutual Consent. Civil Code section 1580.
• Good Consideration. Civil Code section 1605.
• Writing Is Presumption of Consideration. Civil Code section 1614.
• Burden of Proof on Consideration. Civil Code section 1615.
• “Whether parties have reached a contractual agreement and on what terms are
questions for the fact finder when conflicting versions of the parties’ negotiations
require a determination of credibility.” (Hebberd-Kulow Enterprises, Inc. v.
Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283 [159 Cal.Rptr.3d 869].)
• “Whether a contract is illegal or contrary to public policy is a question of law to
be determined from the circumstances of each particular case.” (Jackson v.
Rogers & Wells (1989) 210 Cal.App.3d 336, 349–350 [258 Cal.Rptr. 454].)
• “In order for acceptance of a proposal to result in the formation of a contract,
the proposal ‘must be sufficiently definite, or must call for such definite terms in
the acceptance, that the performance promised is reasonably certain.’ [Citation.]”
(Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811 [71
Cal.Rptr.2d 265].)
• “Whether a contract is sufficiently definite to be enforceable is a question of law
for the court.” (Ladas v. California State Automobile Assn. (1993) 19
Cal.App.4th 761, 770, fn. 2 [23 Cal.Rptr.2d 810].)
• “Consideration is present when the promisee confers a benefit or suffers a
prejudice. Although ‘either alone is sufficient to constitute consideration,’ the
benefit or prejudice’ “ ‘must actually be bargained for as the exchange for the
promise.’ ” ’ ‘Put another way, the benefit or prejudice must have induced the
promisor’s promise.’ It is established that ‘the compromise of disputes or claims
asserted in good faith constitutes consideration for a new promise.’ ” (Property
California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1165 [236
Cal.Rptr.3d 500], internal citations omitted.)
• “[T]he presumption of consideration under [Civil Code] section 1614 affects the
burden of producing evidence and not the burden of proof.” (Rancho Santa Fe
Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 884 [268 Cal.Rptr. 505].)
• “Being an affirmative defense, lack of consideration must be alleged in answer to
the complaint.” (National Farm Workers Service Center, Inc. v. M. Caratan, Inc.
(1983) 146 Cal.App.3d 796, 808 [194 Cal.Rptr. 617].)
• “ ‘It matters not from whom the consideration moves or to whom it goes. If it is
bargained for and given in exchange for the promise, the promise is not
gratuitous.’ ” (Flojo Internat., Inc. v. Lassleben (1992) 4 Cal.App.4th 713, 719 [6
Cal.Rptr.2d 99], internal citation omitted.)
• “The failure to specify the amount or a formula for determining the amount of
the bonus does not render the agreement too indefinite for enforcement. It is not
essential that the contract specify the amount of the consideration or the means
of ascertaining it.” (Moncada v. West Coast Quartz Corp. (2013) 221
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Cal.App.4th 768, 778 [164 Cal.Rptr.3d 601].)
• “ ‘An essential element of any contract is “consent.” [Citations.] The “consent”
must be “mutual.” [Citations.] “Consent is not mutual, unless the parties all
agree upon the same thing in the same sense.” ‘ ‘ “The existence of mutual
consent is determined by objective rather than subjective criteria, the test being
what the outward manifestations of consent would lead a reasonable person to
believe. [Citation.] Accordingly, the primary focus in determining the existence
of mutual consent is upon the acts of the parties involved.” ’ ” (Monster Energy
Co. v. Schechter (2019) 7 Cal.5th 781, 789 [249 Cal.Rptr.3d 295, 444 P.3d 97],
internal citations omitted.)
• “The manifestation of assent to a contractual provision may be ‘wholly or partly
by written or spoken words or by other acts or by failure to act.’ ” (Merced
County Sheriff’s Employees’ Assn. v. County of Merced (1987) 188 Cal.App.3d
662, 670 [233 Cal.Rptr. 519] (quoting Rest. 2d Contracts, § 19).)
• “A letter of intent can constitute a binding contract, depending on the
expectations of the parties. These expectations may be inferred from the conduct
of the parties and surrounding circumstances.” (California Food Service Corp.,
Inc. v. Great American Insurance Co. (1982) 130 Cal.App.3d 892, 897 [182
Cal.Rptr. 67], internal citations omitted.)
• “If words are spoken under circumstances where it is obvious that neither party
would be entitled to believe that the other intended a contract to result, there is
no contract.” (Fowler v. Security-First National Bank (1956) 146 Cal.App.2d 37,
47 [303 P.2d 565].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 116 et seq.
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.10,
140.20–140.25 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.350 et seq. (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, §§ 75.10, 75.11 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
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303. Breach of Contract—Essential Factual Elements
To recover damages from [name of defendant] for breach of contract,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into a
contract;
[2. That [name of plaintiff] did all, or substantially all, of the
significant things that the contract required [him/her/nonbinary
pronoun/it] to do;]
[2. [or]
[2. That [name of plaintiff] was excused from having to [specify things
that plaintiff did not do, e.g., obtain a guarantor on the contract];]
[3. That [specify occurrence of all conditions required by the contract
for [name of defendant]’s performance, e.g., the property was
rezoned for residential use];]
[3. [or]
[3. That [specify condition(s) that did not occur] [was/were] [waived/
excused];]
[4. That [name of defendant] failed to do something that the contract
required [him/her/nonbinary pronoun/it] to do;]
[4. [or]
[4. That [name of defendant] did something that the contract
prohibited [him/her/nonbinary pronoun/it] from doing;]
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s breach of contract was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised April 2004, June 2006, December 2010, June 2011,
June 2013, June 2015, December 2016, May 2020
Directions for Use
Read this instruction in conjunction with CACI No. 300, Breach of
Contract—Introduction.
Optional elements 2 and 3 both involve conditions precedent. A “condition
precedent” is either an act of a party that must be performed or an uncertain event
that must happen before the contractual right accrues or the contractual duty arises.
(Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th
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1131, 1147 [180 Cal.Rptr.3d 683].) Element 2 involves the first kind of condition
precedent; an act that must be performed by one party before the other is required
to perform. Include the second option if the plaintiff alleges that the plaintiff was
excused from having to perform some or all of the contractual conditions.
Not every breach of contract by the plaintiff will relieve the defendant of the
obligation to perform. The breach must be material; element 2 captures materiality
by requiring that the plaintiff have done the significant things that the contract
required. Also, the two obligations must be dependent, meaning that the parties
specifically bargained that the failure to perform the one relieves the obligation to
perform the other. While materiality is generally a question of fact, whether
covenants are dependent or independent is a matter of construing the agreement.
(Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279 [120 Cal.Rptr.3d 893].) If
there is no extrinsic evidence in aid of construction, the question is one of law for
the court. (Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333 [284 P.2d 94].)
Therefore, element 2 should not be given unless the court has determined that
dependent obligations are involved. If parol evidence is required and a dispute of
facts is presented, additional instructions on the disputed facts will be necessary.
(See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th
375, 395 [75 Cal.Rptr.3d 333, 181 P.3d 142].)
Element 3 involves the second kind of condition precedent; an uncertain event that
must happen before contractual duties are triggered. Include the second option if the
plaintiff alleges that the defendant agreed to perform even though a condition did
not occur. For reasons that the occurrence of a condition may have been excused,
see the Restatement Second of Contracts, section 225, Comment b. See also CACI
No. 321, Existence of Condition Precedent Disputed, CACI No. 322, Occurrence of
Agreed Condition Precedent, and CACI No. 323, Waiver of Condition Precedent.
Element 6 states the test for causation in a breach of contract action: whether the
breach was a substantial factor in causing the damages. (US Ecology, Inc. v. State of
California (2005) 129 Cal.App.4th 887, 909 [28 Cal.Rptr.3d 894].) In the context of
breach of contract, it has been said that the term “substantial factor” has no precise
definition, but is something that is more than a slight, trivial, negligible, or
theoretical factor in producing a particular result. (Haley v. Casa Del Rey
Homeowners Assn. (2007) 153 Cal.App.4th 863, 871–872 [63 Cal.Rptr.3d 514]; see
CACI No. 430, Causation—Substantial Factor, applicable to negligence actions.)
Equitable remedies are also available for breach. “As a general proposition, ‘[t]he
jury trial is a matter of right in a civil action at law, but not in equity. [Citations.]’ ”
(C & K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23 Cal.3d 1, 8
[151 Cal.Rptr. 323, 587 P.2d 1136]; Selby Constructors v. McCarthy (1979) 91
Cal.App.3d 517, 524 [154 Cal.Rptr. 164].) However, juries may render advisory
verdicts on these issues. (Raedeke v. Gibraltar Savings & Loan Assn. (1974) 10
Cal.3d 665, 670–671 [111 Cal.Rptr. 693, 517 P.2d 1157].)
Sources and Authority
• Contract Defined. Civil Code section 1549.
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• “A contract is a voluntary and lawful agreement, by competent parties, for a
good consideration, to do or not to do a specified thing.” (Robinson v. Magee
(1858) 9 Cal. 81, 83.)
• “To prevail on a cause of action for breach of contract, the plaintiff must prove
(1) the contract, (2) the plaintiff’s performance of the contract or excuse for
nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the
plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 [169
Cal.Rptr.3d 475].)
• “Implicit in the element of damage is that the defendant’s breach caused the
plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305,
1352 [90 Cal.Rptr.3d 589], original italics.)
• “It is elementary a plaintiff suing for breach of contract must prove it has
performed all conditions on its part or that it was excused from performance.
Similarly, where defendant’s duty to perform under the contract is conditioned
on the happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc., v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524], internal citation omitted.)
• “When a party’s failure to perform a contractual obligation constitutes a material
breach of the contract, the other party may be discharged from its duty to
perform under the contract. Normally the question of whether a breach of an
obligation is a material breach, so as to excuse performance by the other party,
is a question of fact. Whether a partial breach of a contract is material depends
on ‘the importance or seriousness thereof and the probability of the injured party
getting substantial performance.’ ‘A material breach of one aspect of a contract
generally constitutes a material breach of the whole contract.’ ” (Brown, supra,
192 Cal.App.4th at pp. 277–278, internal citations omitted.)
• “The obligations of the parties to a contract are either dependent or independent.
The parties’ obligations are dependent when the performance by one party is a
condition precedent to the other party’s performance. In that event, one party is
excused from its obligation to perform if the other party fails to perform. If the
parties’ obligations are independent, the breach by one party does not excuse the
other party’s performance. Instead, the nonbreaching party still must perform and
its remedy is to seek damages from the other party based on its breach of the
contract.” (Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172, 1182–1183 [236
Cal.Rptr.3d 542], internal citations omitted.)
• “Whether specific contractual obligations are independent or dependent is a
matter of contract interpretation based on the contract’s plain language and the
parties’ intent. Dependent covenants or ‘[c]onditions precedent are not favored in
the law [citations], and courts shall not construe a term of the contract so as to
establish a condition precedent absent plain and unambiguous contract language
to that effect.’ ” (Colaco, supra, 25 Cal.App.5th at p. 1183, internal citations
omitted.)
• “The wrongful, i.e., the unjustified or unexcused, failure to perform a contract is
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a breach. Where the nonperformance is legally justified, or excused, there may
be a failure of consideration, but not a breach.” (1 Witkin, Summary of
California Law (10th ed. 2005) Contracts, § 847, original italics, internal
citations omitted.) “Ordinarily, a breach is the result of an intentional act, but
negligent performance may also constitute a breach, giving rise to alternative
contract and tort actions.” (Ibid., original italics.)
• “ ‘ “Where a party’s breach by non-performance contributes materially to the
non-occurrence of a condition of one of his duties, the non-occurrence is
excused.” [Citation.]’ ” (Stephens & Stephens XII, LLC, supra, 231 Cal. App. 4th
at p. 1144.)
• “ ‘Causation of damages in contract cases, as in tort cases, requires that the
damages be proximately caused by the defendant’s breach, and that their causal
occurrence be at least reasonably certain.’ A proximate cause of loss or damage
is something that is a substantial factor in bringing about that loss or damage.”
(U.S. Ecology, Inc., supra, 129 Cal.App.4th at p. 909, internal citations omitted.)
• “An essential element of [breach of contract] claims is that a defendant’s alleged
misconduct was the cause in fact of the plaintiff’s damage. [¶] The causation
analysis involves two elements. ‘ “One is cause in fact. An act is a cause in fact
if it is a necessary antecedent of an event.” [Citation.]’ The second element is
proximate cause. ‘ “[P]roximate cause ‘is ordinarily concerned, not with the fact
of causation, but with the various considerations of policy that limit an actor’s
responsibility for the consequences of his conduct.’ ” ’ ” (Tribeca Companies,
LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1102–1103
[192 Cal.Rptr.3d 354], footnote and internal citation omitted.)
• “Determining whether a defendant’s misconduct was the cause in fact of a
plaintiff’s injury involves essentially the same inquiry in both contract and tort
cases.” (Tribeca Companies, LLC, supra, 239 Cal.App.4th at p. 1103.)
• “b. Excuse. The non-occurrence of a condition of a duty is said to be ‘excused’
when the condition need no longer occur in order for performance of the duty to
become due. The non-occurrence of a condition may be excused on a variety of
grounds. It may be excused by a subsequent promise, even without
consideration, to perform the duty in spite of the non-occurrence of the
condition. See the treatment of ‘waiver’ in § 84, and the treatment of discharge
in §§ 273–85. It may be excused by acceptance of performance in spite of the
non-occurrence of the condition, or by rejection following its non-occurrence
accompanied by an inadequate statement of reasons. See §§ 246–48. It may be
excused by a repudiation of the conditional duty or by a manifestation of an
inability to perform it. See § 255; §§ 250–51. It may be excused by prevention
or hindrance of its occurrence through a breach of the duty of good faith and
fair dealing (§ 205). See § 239. And it may be excused by impracticability. See
§ 271. These and other grounds for excuse are dealt with in other chapters of
this Restatement. This Chapter deals only with one general ground, excuse to
avoid forfeiture. See § 229.” (Rest.2d of Contracts, § 225, comment b.)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 872
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.50
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.10 et seq. (Matthew
Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.03–22.50
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304. Oral or Written Contract Terms
[Contracts may be written or oral.]
[Contracts may be partly written and partly oral.]
Oral contracts are just as valid as written contracts.
New September 2003; Revised December 2013
Directions for Use
Give the bracketed alternative that is most applicable to the facts of the case.
If the written agreement is fully integrated, the second option may not be
appropriate. Parol evidence is inadmissible if the judge finds that the written
agreement is fully integrated. (Code Civ. Proc., § 1856(d).) The parol evidence rule
generally prohibits the introduction of extrinsic evidence—oral or written—to vary
or contradict the terms of an integrated written instrument. (EPA Real Estate
Partnership v. Kang (1992) 12 Cal.App.4th 171, 175 [15 Cal.Rptr.2d 209]; see Civ.
Code, § 1625; Code Civ. Proc., § 1856(a).)
There are, however, exceptions to the parol evidence rule. (See, e.g., Riverisland
Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th
1169, 1174−1175 [151 Cal.Rptr.3d 93, 291 P.3d 316] [fraud exception]; see also
Code Civ. Proc., § 1856.) If an exception has been found as a matter of law, the
second option may be given. If there are questions of fact regarding the applicability
of an exception, additional instructions on the exception will be necessary.
Sources and Authority
• Oral Contracts. Civil Code section 1622.
• Statute of Frauds. Civil Code section 1624.
• “This question posed by defendant [may a contract be partly written and partly
oral] must be answered in the affirmative in this sense: that a contract or
agreement in legal contemplation is neither written nor oral, but oral or written
evidence may be received to establish the terms of the contract or agreement
between the parties. . . . A so-called partly written and partly oral contract is in
legal effect a contract, the terms of which may be proven by both written and
oral evidence.” (Lande v. Southern California Freight Lines (1948) 85
Cal.App.2d 416, 420–421 [193 P.2d 144].)
• “When the parties to a written contract have agreed to it as an ‘integration’—a
complete and final embodiment of the terms of an agreement—parol evidence
cannot be used to add to or vary its terms . . . [However,] ‘[w]hen only part of
the agreement is integrated, the same rule applies to that part, but parol evidence
may be used to prove elements of the agreement not reduced to writing.’ ”
(Masterson v. Sine (1968) 68 Cal.2d 222, 225 [65 Cal.Rptr. 545, 436 P.2d 561].)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts § 117
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-G, Parol
Evidence Rule, ¶ 8:3145 (The Rutter Group)
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.83
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.12 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
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305. Implied-in-Fact Contract
In deciding whether a contract was created, you should consider the
conduct and relationship of the parties as well as all the circumstances of
the case.
Contracts can be created by the conduct of the parties, without spoken
or written words. Contracts created by conduct are just as valid as
contracts formed with words.
Conduct will create a contract if the conduct of both parties is
intentional and each knows, or has reason to know, that the other party
will interpret the conduct as an agreement to enter into a contract.
New September 2003
Sources and Authority
• Contract May Be Express or Implied. Civil Code sections 1619.
• Express Contract. Civil Code section 1620.
• Implied Contract. Civil Code section 1621.
• “Unlike the ‘quasi-contractual’ quantum meruit theory which operates without an
actual agreement of the parties, an implied-in-fact contract entails an actual
contract, but one manifested in conduct rather than expressed in words.”
(Maglica v. Maglica (1998) 66 Cal.App.4th 442, 455 [78 Cal.Rptr.2d 101].)
• “An implied-in-fact contract is based on the conduct of the parties. Like an
express contract, an implied-in-fact contract requires an ascertained agreement of
the parties.” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636 [198
Cal.Rptr.3d 211], internal citation omitted.)
• Express and implied-in-fact contracts have the same legal effect, but differ in
how they are proved at trial: “ ‘Contracts may be express or implied. These
terms, however, do not denote different kinds of contracts, but have reference to
the evidence by which the agreement between the parties is shown. If the
agreement is shown by the direct words of the parties, spoken or written, the
contract is said to be an express one. But if such agreement can only be shown
by the acts and conduct of the parties, interpreted in the light of the subject-
matter and of the surrounding circumstances, then the contract is an implied
one.’ ” (Marvin v. Marvin (1976) 18 Cal.3d 660, 678, fn. 16 [134 Cal.Rptr. 815,
557 P.2d 106], internal citation omitted.)
• “As to the basic elements [of a contract cause of action], there is no difference
between an express and implied contract. . . . While an implied in fact contract
may be inferred from the conduct, situation or mutual relation of the parties, the
very heart of this kind of agreement is an intent to promise.” (Division of Labor
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Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal.App.3d 268,
275 [137 Cal.Rptr. 855]; see also Friedman v. Friedman (1993) 20 Cal.App.4th
876, 888 [24 Cal.Rptr.2d 892].)
• The formation of an implied contract can become an issue for the jury to decide:
“Whether or not an implied contract has been created is determined by the acts
and conduct of the parties and all the surrounding circumstances involved and is
a question of fact.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123
Cal.App.3d 593, 611 [176 Cal.Rptr. 824], internal citation omitted.)
• “Whether an implied contract exists ‘ “ ‘is usually a question of fact for the trial
court. Where evidence is conflicting, or where reasonable conflicting inferences
may be drawn from evidence which is not in conflict, a question of fact is
presented for decision of the trial court. . . .’ [Citation.]” ’ ” (Unilab Corp,
supra, 244 Cal.App.4th at p. 636.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 102
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.10,
140.110 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.07
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306. Unformalized Agreement
[Name of defendant] contends that the parties did not enter into a
contract because they had not signed a final written agreement. To prove
that a contract was created, [name of plaintiff] must prove both of the
following:
1. That the parties understood and agreed to the terms of the
agreement; and
2. That the parties agreed to be bound before a written agreement
was completed and signed.
New September 2003; Revised December 2012, May 2020
Directions for Use
Give this instruction if the parties agreed to contract terms with the intention of
reducing their agreement to a written and signed contract, but an alleged breach
occurred before the written contract was completed and signed. For other situations
involving the lack of a final written contract, see CACI No. 304, Oral or Written
Contract Terms, and CACI No. 305, Implied-in-Fact Contract.
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention.
Sources and Authority
• “Where the writing at issue shows ‘no more than an intent to further reduce the
informal writing to a more formal one’ the failure to follow it with a more
formal writing does not negate the existence of the prior contract. However,
where the writing shows it was not intended to be binding until a formal written
contract is executed, there is no contract.” (Harris v. Rudin, Richman & Appel
(1999) 74 Cal.App.4th 299, 307 [87 Cal.Rptr.2d 822], internal citations omitted.)
• The execution of a formalized written agreement is not necessarily essential to
the formation of a contract that is made orally: “[I]f the respective parties orally
agreed upon all of the terms and conditions of a proposed written agreement
with the mutual intention that the oral agreement should thereupon become
binding, the mere fact that a formal written agreement to the same effect has not
yet been signed does not alter the binding validity of the oral agreement.
[Citation.]” (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th
348, 358 [72 Cal.Rptr.2d 598].)
• If the parties have agreed not to be bound until the agreement is reduced to
writing and signed by the parties, then the contract will not be effective until the
formal agreement is signed. (Beck v. American Health Group International, Inc.
(1989) 211 Cal.App.3d 1555, 1562 [260 Cal.Rptr. 237].)
• “Whether it was the parties’ mutual intention that their oral agreement to the
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terms contained in a proposed written agreement should be binding immediately
is to be determined from the surrounding facts and circumstances of a particular
case and is a question of fact for the trial court.” (Banner Entertainment, Inc.,
supra, 62 Cal.App.4th at p. 358.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 133, 134
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.350 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.07[3]
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307. Contract Formation—Offer
Both an offer and an acceptance are required to create a contract. [Name
of defendant] contends that a contract was not created because there was
never any offer. To overcome this contention, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] communicated to [name of defendant] that
[he/she/nonbinary pronoun/it] was willing to enter into a contract
with [name of defendant];
2. That the communication contained specific terms; and
3. That, based on the communication, [name of defendant] could have
reasonably concluded that a contract with these terms would
result if [he/she/nonbinary pronoun/it] accepted the offer.
If [name of plaintiff] did not prove all of the above, then a contract was
not created.
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention there was never any offer.
This instruction assumes that the defendant is claiming the plaintiff never made an
offer. Change the identities of the parties in the indented paragraphs if, under the
facts of the case, the roles of the parties are switched (e.g., if defendant was the
alleged offeror). If the existence of an offer is not contested, then this instruction is
unnecessary.
Sources and Authority
• Courts have adopted the definition of “offer” found at Restatement Second of
Contracts, section 24: “An offer is the manifestation of willingness to enter into
a bargain, so made as to justify another person in understanding that his assent
to that bargain is invited and will conclude it.” (City of Moorpark v. Moorpark
Unified School Dist. (1991) 54 Cal.3d 921, 930 [1 Cal.Rptr.2d 896, 819 P.2d
854].)
• Under basic contract law “ ‘[a]n offer must be sufficiently definite, or must call
for such definite terms in the acceptance that the performance promised is
reasonably certain.’ ” (Ladas v. California State Automobile Assn. (1993) 19
Cal.App.4th 761, 770 [23 Cal.Rptr.2d 810].)
• “The trier of fact must determine ‘whether a reasonable person would
necessarily assume . . . a willingness to enter into contract.’ [Citation.]” (In re
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First Capital Life Insurance Co. (1995) 34 Cal.App.4th 1283, 1287 [40
Cal.Rptr.2d 816].)
• Offers should be contrasted with preliminary negotiations: “Preliminary
negotiations or an agreement for future negotiations are not the functional
equivalent of a valid, subsisting agreement.” (Kruse v. Bank of America (1988)
202 Cal.App.3d 38, 59 [248 Cal.Rptr. 217].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 116, 117,
125–137
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.210 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.18–13.24
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308. Contract Formation—Revocation of Offer
Both an offer and an acceptance are required to create a contract. [Name
of defendant] contends that the offer was withdrawn before it was
accepted. To overcome this contention, [name of plaintiff] must prove one
of the following:
1. That [name of defendant] did not withdraw the offer; or
2. That [name of plaintiff] accepted the offer before [name of
defendant] withdrew it; or
3. That [name of defendant]’s withdrawal of the offer was never
communicated to [name of plaintiff].
If [name of plaintiff] did not prove any of the above, then a contract was
not created.
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention.
This instruction assumes that the defendant is claiming to have revoked the
defendant’s offer. Change the identities of the parties in the indented paragraphs if,
under the facts of the case, the roles of the parties are switched (e.g., if defendant
was the alleged offeree).
Sources and Authority
• Revocation Before Acceptance. Civil Code section 1586.
• Methods for Revocation. Civil Code section 1587.
• “It is a well-established principle of contract law that an offer may be revoked
by the offeror any time prior to acceptance.” (T. M. Cobb Co., Inc. v. Superior
Court (1984) 36 Cal.3d 273, 278 [204 Cal.Rptr. 143, 682 P.2d 338].)
• “ ‘Under familiar contract law, a revocation of an offer must be directed to the
offeree.’ [Citation.]” (Moffett v. Barclay (1995) 32 Cal.App.4th 980, 983 [38
Cal.Rptr.2d 546].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 159–165
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.22, 140.61
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.351 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
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Contractual Provisions, § 75.211 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.23–13.24
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309. Contract Formation—Acceptance
Both an offer and an acceptance are required to create a contract. [Name
of defendant] contends that a contract was not created because the offer
was never accepted. To overcome this contention, [name of plaintiff] must
prove both of the following:
1. That [name of defendant] agreed to be bound by the terms of the
offer. [If [name of defendant] agreed to be bound only on certain
conditions, or if [he/she/nonbinary pronoun/it] introduced a new
term into the bargain, then there was no acceptance]; and
2. That [name of defendant] communicated [his/her/nonbinary
pronoun/its] agreement to [name of plaintiff].
If [name of plaintiff] did not prove both of the above, then a contract was
not created.
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention.
This instruction assumes that the defendant is claiming to have not accepted
plaintiff’s offer. Change the identities of the parties in the indented paragraphs if,
under the facts of the case, the roles of the parties are switched (e.g., if defendant
was the alleged offeror).
Sources and Authority
• Acceptance. Civil Code section 1585.
• “[T]erms proposed in an offer must be met exactly, precisely and unequivocally
for its acceptance to result in the formation of a binding contract; and a qualified
acceptance amounts to a new proposal or counteroffer putting an end to the
original offer.” (Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851,
855–856 [70 Cal.Rptr.2d 595].)
• “[I]t is not necessarily true that any communication other than an unequivocal
acceptance is a rejection. Thus, an acceptance is not invalidated by the fact that
it is ‘grumbling,’ or that the offeree makes some simultaneous ‘request.’
Nevertheless, it must appear that the ‘grumble’ does not go so far as to make it
doubtful that the expression is really one of assent. Similarly, the ‘request’ must
not add additional or different terms from those offered. Otherwise, the
‘acceptance’ becomes a counteroffer.” (Guzman v. Visalia Community Bank
(1999) 71 Cal.App.4th 1370, 1376 [84 Cal.Rptr.2d 581].)
• “The interpretation of the purported acceptance or rejection of an offer is a
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question of fact. Further, based on the general rule that manifested mutual assent
rather than actual mental assent is the essential element in the formation of
contracts, the test of the true meaning of an acceptance or rejection is not what
the party making it thought it meant or intended it to mean. Rather, the test is
what a reasonable person in the position of the parties would have thought it
meant.” (Guzman, supra, 71 Cal.App.4th at pp. 1376–1377.)
• “Acceptance of an offer, which may be manifested by conduct as well as by
words, must be expressed or communicated by the offeree to the offeror.”
(Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114 [86 Cal.Rptr. 424].)
• “The Restatement Second of Contracts, section 60 provides, ‘If an offer
prescribes the place, time or manner of acceptance its terms in this respect must
be complied with in order to create a contract. If an offer merely suggests a
permitted place, time or manner of acceptance, another method of acceptance is
not precluded.’ Comment a to Restatement 2d, section 60 provides, ‘a.
Interpretation of offer. If the offeror prescribes the only way in which his offer
may be accepted, an acceptance in any other way is a counter-offer. But
frequently in regard to the details of methods of acceptance, the offeror’s
language, if fairly interpreted, amounts merely to a statement of a satisfactory
method of acceptance, without positive requirement that this method shall be
followed.’ [¶] Similarly, Restatement 2d, section 30 provides in relevant part,
‘Unless otherwise indicated by the language or the circumstances, an offer
invites acceptance in any manner and by any medium reasonable in the
circumstances.’ Comment b to Restatement 2d section 30 states: ‘Invited form.
Insistence on a particular form of acceptance is unusual. Offers often make no
express reference to the form of acceptance; sometimes ambiguous language is
used. Language referring to a particular mode of acceptance is often intended
and understood as suggestion rather than limitation; the suggested mode is then
authorized, but other modes are not precluded. In other cases language which in
terms refers to the mode of acceptance is intended and understood as referring to
some more important aspect of the transaction, such as the time limit for
acceptance.’ ” (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232
Cal.App.4th 294, 311–312 [181 Cal.Rptr.3d 399], original italics, footnote
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 180–192
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.352 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.214 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.25–13.31
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310. Contract Formation—Acceptance by Silence
Ordinarily, if a person does not say or do anything in response to
another party’s offer, then the person has not accepted the offer.
However, if [name of plaintiff] proves that both [he/she/nonbinary pronoun/
it] and [name of defendant] understood silence or inaction to mean that
[name of defendant] had accepted [name of plaintiff]’s offer, then there was
an acceptance.
New September 2003; Revised May 2020
Directions for Use
This instruction assumes that the defendant is claiming to have not accepted
plaintiff’s offer. Change the identities of the parties in the last two sets of brackets
if, under the facts of the case, the roles of the parties are switched (e.g., if defendant
was the alleged offeror).
This instruction should be read in conjunction with and immediately after CACI
No. 309, Contract Formation—Acceptance, if acceptance by silence is an issue.
Sources and Authority
• Consent by Acceptance of Benefits. Civil Code section 1589.
• Because acceptance must be communicated, “[s]ilence in the face of an offer is
not an acceptance, unless there is a relationship between the parties or a previous
course of dealing pursuant to which silence would be understood as acceptance.”
(Southern California Acoustics Co., Inc. v. C. V. Holder, Inc. (1969) 71 Cal.2d
719, 722 [79 Cal.Rptr. 319, 456 P.2d 975].)
• Acceptance may also be inferred from inaction where one has a duty to act, and
from retention of the offered benefit. (Golden Eagle Insurance Co. v. Foremost
Insurance Co. (1993) 20 Cal.App.4th 1372, 1386 [25 Cal.Rptr.2d 242].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 193–197
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.11 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.31
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311. Contract Formation—Rejection of Offer
[Name of defendant] contends that the offer to enter into a contract
terminated because [name of plaintiff] rejected it. To overcome this
contention, [name of plaintiff] must prove both of the following:
1. That [name of plaintiff] did not reject [name of defendant]’s offer;
and
2. That [name of plaintiff] did not make any additions or changes to
the terms of [name of defendant]’s offer.
If [name of plaintiff] did not prove both of the above, then a contract was
not created.
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention that the plaintiff rejected the offer.
Note that rejections of a contract offer, or proposed alterations to an offer, are
effective only if they are communicated to the other party. (See Beverly Way
Associates v. Barham (1990) 226 Cal.App.3d 49, 55 [276 Cal.Rptr. 240].) If it is
necessary for the jury to make a finding regarding the issue of communication then
this instruction may need to be modified.
This instruction assumes that the defendant is claiming plaintiff rejected defendant’s
offer. Change the identities of the parties in the indented paragraphs if, under the
facts of the case, the roles of the parties are switched (e.g., if defendant was the
alleged offeree).
Conceptually, this instruction dovetails with CACI No. 309, Contract
Formation—Acceptance. This instruction is designed for the situation where a party
has rejected an offer by not accepting it on its terms.
Sources and Authority
• Acceptance. Civil Code section 1585.
• Cases provide that “a qualified acceptance amounts to a new proposal or
counter-offer putting an end to the original offer. . . . A counter-offer containing
a condition different from that in the original offer is a new proposal and, if not
accepted by the original offeror, amounts to nothing.” (Apablasa v. Merritt and
Co. (1959) 176 Cal.App.2d 719, 726 [1 Cal.Rptr. 500], internal citations
omitted.) More succinctly: “The rejection of an offer kills the offer.” (Stanley v.
Robert S. Odell and Co. (1950) 97 Cal.App.2d 521, 534 [218 P.2d 162].)
• “[T]erms proposed in an offer must be met exactly, precisely and unequivocally
for its acceptance to result in the formation of a binding contract; and a qualified
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acceptance amounts to a new proposal or counteroffer putting an end to the
original offer.” (Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851,
855–856 [70 Cal.Rptr.2d 595].)
• The original offer terminates as soon as the rejection is communicated to the
offeror: “It is hornbook law that an unequivocal rejection by an offeree,
communicated to the offeror, terminates the offer; even if the offeror does no
further act, the offeree cannot later purport to accept the offer and thereby create
enforceable contractual rights against the offeror.” (Beverly Way Associates,
supra, 226 Cal.App.3d at p. 55.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 163
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.352 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, §§ 75.212–75.214 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.23–13.24
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312. Substantial Performance
[Name of defendant] contends that [name of plaintiff] did not perform all
of the things that [name of plaintiff] was required to do under the
contract, and therefore [name of defendant] did not have to perform [his/
her/nonbinary pronoun/its] obligations under the contract. To overcome
this contention, [name of plaintiff] must prove both of the following:
1. That [name of plaintiff] made a good faith effort to comply with
the contract; and
2. That [name of defendant] received essentially what the contract
called for because [name of plaintiff]’s failures, if any, were so
trivial or unimportant that they could have been easily fixed or
paid for.
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention that the plaintiff did not perform all of the
things required under the contract.
Sources and Authority
• “ ‘Substantial performance means that there has been no willful departure from
the terms of the contract, and no omission of any of its essential parts, and that
the contractor has in good faith performed all of its substantive terms. If so, he
will not be held to have forfeited his right to a recovery by reason of trivial
defects or imperfections in the work performed.’ ” (Connell v. Higgins (1915)
170 Cal. 541, 556 [150 P. 769], citation omitted.)
• The Supreme Court has cited the following passage from Witkin with approval:
“At common law, recovery under a contract for work done was dependent upon
a complete performance, although hardship might be avoided by permitting
recovery in quantum meruit. The prevailing doctrine today, which finds its
application chiefly in building contracts, is that substantial performance is
sufficient, and justifies an action on the contract, although the other party is
entitled to a reduction in the amount called for by the contract, to compensate
for the defects. What constitutes substantial performance is a question of fact,
but it is essential that there be no wilful departure from the terms of the contract,
and that the defects be such as may be easily remedied or compensated, so that
the promisee may get practically what the contract calls for.” (Posner v.
Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 186–187 [14 Cal.Rptr. 297, 363 P.2d
313]; see also Kossler v. Palm Springs Developments, Ltd. (1980) 101
Cal.App.3d 88, 101 [161 Cal.Rptr. 423].)
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• “ ‘Whether, in any case, such defects or omissions are substantial, or merely
unimportant mistakes that have been or may be corrected, is generally a question
of fact.’ ” (Connell, supra, 170 Cal. at pp. 556–557, internal citation omitted.)
• “The doctrine of substantial performance has been recognized in California since
at least 1921, when the California Supreme Court decided the landmark case of
Thomas Haverty Co. v. Jones [citation], in which the court stated: ‘The general
rule on the subject of [contractual] performance is that “Where a person agrees
to do a thing for another for a specified sum of money to be paid on full
performance, he is not entitled to any part of the sum until he has himself done
the thing he agreed to do, unless full performance has been excused, prevented,
or delayed by the act of the other party, or by operation of law, or by the act of
God or the public enemy.” [Citation.] [¶] . . . [I]t is settled, especially in the
case of building contracts, where the owner has taken possession of the building
and is enjoying the fruits of the contractor’s work in the performance of the
contract, that if there has been a substantial performance thereof by the
contractor in good faith, where the failure to make full performance can be
compensated in damages, to be deducted from the price or allowed as a
counterclaim, and the omissions and deviations were not willful or fraudulent,
and do not substantially affect the usefulness of the building for the purposes for
which it was intended, the contractor may, in an action upon the contract,
recover the amount unpaid of his contract price less the amount allowed as
damages for the failure in strict performance. [Citations.]’ ” (Murray’s Iron
Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1291–1292 [71 Cal.Rptr.3d
317].)
• “We hold that a provision in the parties’ contract making time of the essence
does not automatically make [the defendant’s] untimely performance a breach of
contract because there are triable issues regarding the scope of that provision and
whether its enforcement would result in a forfeiture to [the defendant] and a
windfall to [the plaintiff].” (Magic Carpet Ride LLC v. Rugger Investment
Group, LLC (2019) 41 Cal.App.5th 357, 360 [254 Cal.Rptr.3d 213].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 843–884
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.23
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.30, 50.31 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08[2], 22.16[2], 22.37, 22.69
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313. Modification
[Name of party claiming modification] claims that the original contract was
modified or changed. [Name of party claiming modification] must prove
that the parties agreed to the modification. [Name of other party] denies
that the contract was modified.
The parties to a contract may agree to modify its terms. You must decide
whether a reasonable person would conclude from the words and
conduct of the parties that they agreed to modify the contract. You
cannot consider the parties’ hidden intentions.
[A contract in writing may be modified by a contract in writing.]
[A contract in writing may be modified by an oral agreement to the
extent the oral agreement is carried out by the parties.]
[A contract in writing may be modified by an oral agreement if the
parties agree to give each other something of value.]
[An oral contract may be modified by consent of the parties, in writing,
without an agreement to give each other something of value.]
New September 2003; Revised December 2009
Sources and Authority
• Modification. Civil Code section 1698.
• The Law Revision Commission comment to this section observes: “The rules
provided by subdivisions (b) and (c) merely describe cases where proof of an
oral modification is permitted; these rules do not, however, affect in any way the
burden of the party claiming that there was an oral modification to produce
sufficient evidence to persuade the trier of fact that the parties actually did make
an oral modification of the contract.”
• Modification of Oral Contract. Civil Code section 1697.
• “It is axiomatic that the parties to an agreement may modify it.” (Vella v.
Hudgins (1984) 151 Cal.App.3d 515, 519 [198 Cal.Rptr. 725].)
• “Another issue of fact appearing in the evidence is whether the written contract
was modified by executed oral agreements. This can be a question of fact. An
agreement to modify a written contract will be implied if the conduct of the
parties is inconsistent with the written contract so as to warrant the conclusion
that the parties intended to modify it.” (Daugherty Co. v. Kimberly-Clark Corp.
(1971) 14 Cal.App.3d 151, 158 [92 Cal.Rptr. 120], internal citation omitted.)
• “Modification is a change in the obligation by a modifying agreement which
requires mutual assent.” (Wade v. Diamond A Cattle Co. (1975) 44 Cal.App.3d
453, 457 [118 Cal.Rptr. 695].)
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• “A contract can, of course, be subsequently modified with the assent of the
parties thereto, provided the same elements essential to the validity of the
original contract are present.” (Carlson, Collins, Gordon & Bold v. Banducci
(1967) 257 Cal.App.2d 212, 223 [64 Cal.Rptr. 915], internal citations omitted.)
• “Generally speaking, a commitment to perform a preexisting contractual
obligation has no value. In contractual parlance, for example, doing or promising
to do something one is already legally bound to do cannot constitute the
consideration needed to support a binding contract.” (Auerbach v. Great Western
Bank (1999) 74 Cal.App.4th 1172, 1185 [88 Cal.Rptr.2d 718].)
• Consideration is unnecessary if the modification is to correct errors and
omissions. (Texas Co. v. Todd (1937) 19 Cal.App.2d 174, 185–186 [64 P.2d
1180].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 995–1002
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-G, Parol
Evidence Rule, ¶¶ 8:3050–8:3202 (The Rutter Group)
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.112,
140.149–140.152 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.520–50.523 (Matthew
Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.21, 77.121,
77.320–77.323 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.58
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314. Interpretation—Disputed Words
[Name of plaintiff] and [name of defendant] dispute the meaning of the
following words in their contract: [insert disputed language].
[Name of plaintiff] claims that the words mean [insert plaintiff’s
interpretation]. [Name of defendant] claims that the words mean [insert
defendant’s interpretation]. [Name of plaintiff] must prove that [his/her/
nonbinary pronoun/its] interpretation is correct.
In deciding what the words of a contract mean, you must decide what
the parties intended at the time the contract was created. You may
consider the usual and ordinary meaning of the language used in the
contract as well as the circumstances surrounding the making of the
contract.
[The following instructions may also help you interpret the words of the
contract:]
New September 2003; Revised December 2014
Directions for Use
Give this instruction if there is conflicting extrinsic evidence as to what the parties
intended the language of their contract to mean. While interpretation of a contract
can be a matter of law for the court (Parsons v. Bristol Development Co. (1965) 62
Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839]), it is a question of fact for the
jury if ascertaining the intent of the parties at the time the contract was executed
depends on the credibility of extrinsic evidence. (City of Hope National Medical
Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 [75 Cal.Rptr.3d 333, 181 P.3d
142].)
Read any of the instructions (as appropriate) on tools for interpretation (CACI
Nos. 315 through 320) after reading the last bracketed sentence.
Sources and Authority
• Contract Interpretation: Intent. Civil Code section 1636.
• Contracts Explained by Circumstances. Civil Code section 1647.
• “Juries are not prohibited from interpreting contracts. Interpretation of a written
instrument becomes solely a judicial function only when it is based on the words
of the instrument alone, when there is no conflict in the extrinsic evidence, or a
determination was made based on incompetent evidence. But when, as here,
ascertaining the intent of the parties at the time the contract was executed
depends on the credibility of extrinsic evidence, that credibility determination
and the interpretation of the contract are questions of fact that may properly be
resolved by the jury.” (City of Hope National Medical Center, supra, 43 Cal.4th
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at p. 395, footnote and internal citations omitted.)
• “This rule—that the jury may interpret an agreement when construction turns on
the credibility of extrinsic evidence—is well established in our case law.
California’s jury instructions reflect this (Judicial Council of Cal. Civ. Jury
Instns. (2008) CACI No. 314) . . . , as do authoritative secondary sources.”
(City of Hope National Medical Center, supra, 43 Cal.4th at pp. 395−396,
internal citations omitted.)
• “The trial court’s determination of whether an ambiguity exists is a question of
law, subject to independent review on appeal. The trial court’s resolution of an
ambiguity is also a question of law if no parol evidence is admitted or if the
parol evidence is not in conflict. However, where the parol evidence is in
conflict, the trial court’s resolution of that conflict is a question of fact and must
be upheld if supported by substantial evidence. Furthermore, ‘[w]hen two
equally plausible interpretations of the language of a contract may be made . . .
parol evidence is admissible to aid in interpreting the agreement, thereby
presenting a question of fact which precludes summary judgment if the evidence
is contradictory.’ ” (WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702,
1710 [50 Cal.Rptr.2d 323].)
• “In interpreting a contract, the objective intent, as evidenced by the words of the
contract is controlling. We interpret the intent and scope of the agreement by
focusing on the usual and ordinary meaning of the language used and the
circumstances under which the agreement was made.” (Lloyd’s Underwriters v.
Craig & Rush, Inc. (1994) 26 Cal.App.4th 1194, 1197–1198 [32 Cal.Rptr.2d
144], internal citations omitted.)
• “Ordinarily, even in an integrated contract, extrinsic evidence can be admitted to
explain the meaning of the contractual language at issue, although it cannot be
used to contradict it or offer an inconsistent meaning. The language, in such a
case, must be ‘ “reasonably susceptible” ’ to the proposed meaning.” (Hot Rods,
LLC v. Northrop Grumman Systems Corp. (2015) 242 Cal.App.4th 1166,
1175–1176 [196 Cal.Rptr.3d 53].)
• “ ‘When there is no material conflict in the extrinsic evidence, the trial court
interprets the contract as a matter of law. [Citation.] This is true even when
conflicting inferences may be drawn from the undisputed extrinsic evidence
[citations] or that extrinsic evidence renders the contract terms susceptible to
more than one reasonable interpretation. [Citations.] If, however, there is a
conflict in the extrinsic evidence, the factual conflict is to be resolved by the
jury. [Citations.]’ ” (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 433 [246
Cal.Rptr.3d 161].)
• “[I]t is indisputably the law that ‘when ambiguous terms in a memorandum are
disputed, extrinsic evidence is admissible to resolve the uncertainty.’ The
agreement must still provide the essential terms, and it is ‘clear that extrinsic
evidence cannot supply those required terms.’ ‘It can, however, be used to
explain essential terms that were understood by the parties but would otherwise
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be unintelligible to others.’ ” (Jacobs v. Locatelli (2017) 8 Cal.App.5th 317, 325
[213 Cal.Rptr.3d 514], original italics, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 764–766
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.15 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.04[2][b], 21.14[2]
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315. Interpretation—Meaning of Ordinary Words
You should assume that the parties intended the words in their contract
to have their usual and ordinary meaning unless you decide that the
parties intended the words to have a special meaning.
New September 2003; Revised December 2014
Directions for Use
This instruction may be given with CACI No. 314, Interpretation—Disputed Words.
See the Directions for Use and Sources and Authority to that instruction for
discussion of when contract interpretation may be a proper jury role.
Sources and Authority
• Words to Be Understood in Usual Sense. Civil Code section 1644.
• “Generally speaking, words in a contract are to be construed according to their
plain, ordinary, popular or legal meaning, as the case may be. However,
particular expressions may, by trade usage, acquire a different meaning in
reference to the subject matter of a contract. If both parties are engaged in that
trade, the parties to the contract are deemed to have used them according to their
different and peculiar sense as shown by such trade usage and parol evidence is
admissible to establish the trade usage even though the words in their ordinary
or legal meaning are entirely unambiguous. [Citation.]” (Hayter Trucking Inc. v.
Shell Western E & P, Inc. (1993) 18 Cal.App.4th 1, 15 [22 Cal.Rptr.2d 229].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 768
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.15 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.20
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316. Interpretation—Meaning of Technical Words
You should assume that the parties intended technical words used in the
contract to have the meaning that is usually given to them by people
who work in that technical field, unless you decide that the parties
clearly used the words in a different sense.
New September 2003; Revised December 2014
Directions for Use
This instruction may be given with CACI No. 314, Interpretation—Disputed Words.
See the Directions for Use and Sources and Authority to that instruction for
discussion of when contract interpretation may be a proper jury role.
Sources and Authority
• Technical Words. Civil Code section 1645.
• “The ‘clear and explicit’ meaning of these provisions, interpreted in their
‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a
special meaning is given to them by usage’ [citation], controls judicial
interpretation.” (Cooper Companies, Inc. v. Transcontinental Insurance Co.
(1995) 31 Cal.App.4th 1094, 1101 [37 Cal.Rptr.2d 508].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 768
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.15 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.22
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317. Interpretation—Construction of Contract as a Whole
In deciding what the words of a contract meant to the parties, you
should consider the whole contract, not just isolated parts. You should
use each part to help you interpret the others, so that all the parts make
sense when taken together.
New September 2003; Revised December 2014
Directions for Use
This instruction may be given with CACI No. 314, Interpretation—Disputed Words.
See the Directions for Use and Sources and Authority to that instruction for
discussion of when contract interpretation may be a proper jury role.
Sources and Authority
• Effect to Be Given to Every Part of Contract. Civil Code section 1641.
• “[T]he contract must be construed as a whole and the intention of the parties
must be ascertained from the consideration of the entire contract, not some
isolated portion.” (County of Marin v. Assessment Appeals Bd. of Marin County
(1976) 64 Cal.App.3d 319, 324–325 [134 Cal.Rptr. 349].)
• “Any contract must be construed as a whole, with the various individual
provisions interpreted together so as to give effect to all, if reasonably possible
or practicable.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith
(1998) 68 Cal.App.4th 445, 473 [80 Cal.Rptr.2d 329].)
• “[W]e should interpret contractual language in a manner which gives force and
effect to every clause rather than to one which renders clauses nugatory.” (Titan
Corp. v. Aetna Casualty and Surety Co. (1994) 22 Cal.App.4th 457, 473–474 [27
Cal.Rptr.2d 476].)
• “Nor are we persuaded by [defendant]’s related claim that it was improper for
[plaintiff]’s counsel to tell the jurors, during closing argument, that in resolving
witness credibility issues they should consider the ‘big picture’ and not get lost
in the minutiae of the contractual language.” (City of Hope National Medical
Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 394 [75 Cal.Rptr.3d 333, 181
P.3d 142].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 769–770
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.15 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
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a Particular Construction of Contract, 21.19
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318. Interpretation—Construction by Conduct
In deciding what the words in a contract meant to the parties, you may
consider how the parties acted after the contract was created but before
any disagreement between the parties arose.
New September 2003; Revised December 2014
Directions for Use
This instruction may be given with CACI No. 314, Interpretation—Disputed Words.
See the Directions for Use and Sources and Authority to that instruction for
discussion of when contract interpretation may be a proper jury role.
Sources and Authority
• “In construing contract terms, the construction given the contract by the acts and
conduct of the parties with knowledge of its terms, and before any controversy
arises as to its meaning, is relevant on the issue of the parties’ intent.” (Southern
Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc. (1999) 74
Cal.App.4th 1232, 1242 [88 Cal.Rptr.2d 777].)
• “This rule of practical construction is predicated on the common sense concept
that ‘actions speak louder than words.’ Words are frequently but an imperfect
medium to convey thought and intention. When the parties to a contract perform
under it and demonstrate by their conduct that they knew what they were talking
about the courts should enforce that intent.” (Crestview Cemetery Assn. v. Dieden
(1960) 54 Cal.2d 744, 754 [8 Cal.Rptr. 427, 356 P.2d 171].)
• “The conduct of the parties after execution of the contract and before any
controversy has arisen as to its effect affords the most reliable evidence of the
parties’ intentions.” (Kennecott Corp. v. Union Oil Co. of California (1987) 196
Cal.App.3d 1179, 1189 [242 Cal.Rptr. 403].)
• “[T]his rule is not limited to the joint conduct of the parties in the course of
performance of the contract. As stated in Corbin on Contracts, ‘The practical
interpretation of the contract by one party, evidenced by his words or acts, can
be used against him on behalf of the other party, even though that other party
had no knowledge of those words or acts when they occurred and did not concur
in them. In the litigation that has ensued, one who is maintaining the same
interpretation that is evidenced by the other party’s earlier words, and acts, can
introduce them to support his contention.’ We emphasize the conduct of one
party to the contract is by no means conclusive evidence as to the meaning of
the contract. It is relevant, however, to show the contract is reasonably
susceptible to the meaning evidenced by that party’s conduct.” (Southern
California Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839, 851 [44
Cal.Rptr.2d 227], internal citations omitted.)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 772
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.51
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319. Interpretation—Reasonable Time
If a contract does not state a specific time in which the parties are to
meet the requirements of the contract, then the parties must meet them
within a reasonable time. What is a reasonable time depends on the facts
of each case, including the subject matter of the contract, the reasons
each party entered into the contract, and the intentions of the parties at
the time they entered the contract.
New September 2003; Revised December 2014
Directions for Use
This instruction may be given with CACI No. 314, Interpretation—Disputed Words.
See the Directions for Use and Sources and Authority to that instruction for
discussion of when contract interpretation may be a proper jury role.
Sources and Authority
• Time of Performance of Contract. Civil Code section 1657.
• “[A]s the contract was silent as to the time of delivery a reasonable time for
performance must be implied.” (Palmquist v. Palmquist (1963) 212 Cal.App.2d
322, 331 [27 Cal.Rptr. 744].)
• “The question of what constituted a reasonable time was of course one of fact.”
(Lyon v. Goss (1942) 19 Cal.2d 659, 673 [123 P.2d 11].)
• “[W]hat constitutes a reasonable time is a question of fact, depending upon the
situation of the parties, the nature of the transaction, and the facts of the
particular case.” (Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836 [52
Cal.Rptr. 1, 415 P.2d 816].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 785–787
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.41
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.15 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.49
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.30
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.46
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320. Interpretation—Construction Against Drafter
In determining the meaning of the words of the contract, you must first
consider all of the other instructions that I have given you. If, after
considering these instructions, you still cannot agree on the meaning of
the words, then you should interpret the contract against [the party that
drafted the disputed words/the party that caused the uncertainty].
New September 2003; Revised December 2014
Directions for Use
This instruction may be given with CACI No. 314, Interpretation—Disputed Words.
See the Directions for Use and Sources and Authority to that instruction for
discussion of when contract interpretation may be a proper jury role.
Sources and Authority
• Language Interpreted Against Party Causing Uncertainty. Civil Code section
1654.
• “[T]his [Civil Code section 1654] canon applies only as a tie breaker, when
other canons fail to dispel uncertainty.” Pacific Gas & Electric Co. v. Superior
Court (1993) 15 Cal.App.4th 576, 596 [19 Cal.Rptr.2d 295], disapproved on
other grounds in Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th
362, 376–377 [36 Cal.Rptr.2d 581, 885 P.2d 994].)
• “The trial court’s instruction . . . embodies a general rule of contract
interpretation that was applicable to the negotiated agreement between [the
parties]. It may well be that in a particular situation the discussions and
exchanges between the parties in the negotiation process may make it difficult or
even impossible for the jury to determine which party caused a particular
contractual ambiguity to exist, but this added complexity does not make the
underlying rule irrelevant or inappropriate for a jury instruction. We conclude,
accordingly, that the trial court here did not err in instructing the jury on Civil
Code section 1654’s general rule of contract interpretation.” (City of Hope
National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 398 [75
Cal.Rptr.3d 333, 181 P.3d 142].)
• “[I]f the uncertainty is not removed by application of the other rules of
interpretation, a contract must be interpreted most strongly against the party who
prepared it. This last rule is applied with particular force in the case of adhesion
contracts.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 801 [79
Cal.Rptr.2d 273], internal citations omitted.)
• “[T]he doctrine of contra proferentem (construing ambiguous agreements against
the drafter) applies with even greater force when the person who prepared the
writing is a lawyer.” Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 1370
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[62 Cal.Rptr.2d 27].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 780
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.15 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.15
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321. Existence of Condition Precedent Disputed
[Name of defendant] claims that the contract with [name of plaintiff]
provides that [he/she/nonbinary pronoun/it] was not required to [insert
duty] unless [insert condition precedent].
[Name of defendant] must prove that the parties agreed to this condition.
If [name of defendant] proves this, then [name of plaintiff] must prove that
[insert condition precedent].
If [name of plaintiff] does not prove that [insert condition precedent], then
[name of defendant] was not required to [insert duty].
New September 2003
Directions for Use
This instruction should only be given if both the existence and the occurrence of a
condition precedent are contested. If only the occurrence of a condition precedent is
contested, use CACI No. 322, Occurrence of Agreed Condition Precedent.
Sources and Authority
• Conditional Obligation. Civil Code section 1434.
• Condition Precedent. Civil Code section 1436.
• “Under the law of contracts, parties may expressly agree that a right or duty is
conditional upon the occurrence or nonoccurrence of an act or event.” (Platt
Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313 [24 Cal.Rptr.2d 597, 862 P.2d
158].)
• “A conditional obligation is one in which ‘the rights or duties of any party
thereto depend upon the occurrence of an uncertain event.’ ‘[P]arties may
expressly agree that a right or duty is conditional upon the occurrence or
nonoccurrence of an act or event.’ A condition in a contract may be a condition
precedent, concurrent, or subsequent. ‘[A] condition precedent is either an act of
a party that must be performed or an uncertain event that must happen before
the contractual right accrues or the contractual duty arises.’ ” (JMR Construction
Corp. v. Environmental Assessment & Remediation Management, Inc. (2015) 243
Cal.App.4th 571, 593 [198 Cal.Rptr.3d 47].)
• “The existence of a condition precedent normally depends upon the intent of the
parties as determined from the words they have employed in the contract.”
(Karpinski v. Smitty’s Bar, Inc. (2016) 246 Cal.App.4th 456, 464 [201
Cal.Rptr.3d 148].)
• “Dependent covenants or ‘[c]onditions precedent are not favored in the law
[citations], and courts shall not construe a term of the contract so as to establish
a condition precedent absent plain and unambiguous contract language to that
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effect.’ ” (Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172, 1183 [236
Cal.Rptr.3d 542], internal citations omitted.)
• “[W]here defendant’s duty to perform under the contract is conditioned on the
happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)
• “When a contract establishes the satisfaction of one of the parties as a condition
precedent, two tests are recognized: (1) The party is bound to make his decision
according to the judicially discerned, objective standard of a reasonable person;
(2) the party may make a subjective decision regardless of reasonableness,
controlled only by the need for good faith. Which test applies in a given
transaction is a matter of actual or judicially inferred intent. Absent an explicit
contractual direction or one implied from the subject matter, the law prefers the
objective, i.e., reasonable person, test.” (Guntert v. City of Stockton (1974) 43
Cal.App.3d 203, 209 [117 Cal.Rptr. 601], internal citations omitted.)
• “[T]he parol evidence rule does not apply to conditions precedent.” (Karpinski,
supra, 246 Cal.App.4th at p. 464, fn 6.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 803–814
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.44,
140.101 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.20–50.22 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.19, 22.66
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322. Occurrence of Agreed Condition Precedent
The parties agreed in their contract that [name of defendant] would not
have to [insert duty] unless [insert condition precedent]. [Name of
defendant] contends that this condition did not occur and that [he/she/
nonbinary pronoun/it] did not have to [insert duty]. To overcome this
contention, [name of plaintiff] must prove that [insert condition precedent].
If [name of plaintiff] does not prove that [insert condition precedent], then
[name of defendant] was not required to [insert duty].
New September 2003; Revised May 2020
Directions for Use
Do not give this instruction unless the defendant has testified or offered other
evidence in support of the contention a condition precedent did not occur.
If both the existence and the occurrence of a condition precedent are contested, use
CACI No. 321, Existence of Condition Precedent Disputed.
Sources and Authority
• Conditional Obligation. Civil Code section 1434.
• Condition Precedent. Civil Code section 1436.
• “A conditional obligation is one in which ‘the rights or duties of any party
thereto depend upon the occurrence of an uncertain event.’ ‘[P]arties may
expressly agree that a right or duty is conditional upon the occurrence or
nonoccurrence of an act or event.’ A condition in a contract may be a condition
precedent, concurrent, or subsequent.” (JMR Construction Corp. v.
Environmental Assessment & Remediation Management, Inc. (2015) 243
Cal.App.4th 571, 593 [198 Cal.Rptr.3d 47].)
• “[A] ‘condition precedent’ is ‘either an act of a party that must be performed or
an uncertain event that must happen before the contractual right accrues or the
contractual duty arises.’ ” (Stephens & Stephens XII, LLC v. Fireman’s Fund Ins.
Co. (2014) 231 Cal.App.4th 1131, 1147 [180 Cal.Rptr.3d 683].)
• “Under the law of contracts, parties may expressly agree that a right or duty is
conditional upon the occurrence or nonoccurrence of an act or event.” (Platt
Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313 [24 Cal.Rptr.2d 597, 862 P.2d
158].)
• “The existence of a condition precedent normally depends upon the intent of the
parties as determined from the words they have employed in the contract.”
(Karpinski v. Smitty’s Bar, Inc. (2016) 246 Cal.App.4th 456, 464 [201
Cal.Rptr.3d 148].)
• “ ‘[G]enerally, a party’s failure to perform a condition precedent will preclude an
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action for breach of contract.’ ” (Stephens & Stephens XII, LLC, supra, 231
Cal.App.4th at p. 1147.)
• “[W]here defendant’s duty to perform under the contract is conditioned on the
happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)
• “When a contract establishes the satisfaction of one of the parties as a condition
precedent, two tests are recognized: (1) The party is bound to make his decision
according to the judicially discerned, objective standard of a reasonable person;
(2) the party may make a subjective decision regardless of reasonableness,
controlled only by the need for good faith. Which test applies in a given
transaction is a matter of actual or judicially inferred intent. Absent an explicit
contractual direction or one implied from the subject matter, the law prefers the
objective, i.e., reasonable person, test.” (Guntert v. City of Stockton (1974) 43
Cal.App.3d 203, 209 [117 Cal.Rptr. 601], internal citations omitted.)
• “[T]he parol evidence rule does not apply to conditions precedent.” (Karpinski,
supra, 246 Cal.App.4th at p. 464, fn 6.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 799–814
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.44,
140.101 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.20–50.22 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.19, 22.66
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323. Waiver of Condition Precedent
[Name of plaintiff] and [name of defendant] agreed in their contract that
[name of defendant] would not have to [insert duty] unless [insert condition
precedent]. That condition did not occur. Therefore, [name of defendant]
contends that [he/she/nonbinary pronoun/it] did not have to [insert duty].
To overcome this contention, [name of plaintiff] must prove by clear and
convincing evidence that [name of defendant], by words or conduct, gave
up [his/her/nonbinary pronoun/its] right to require [insert condition
precedent] before having to [insert duty].
New September 2003; Revised December 2013
Directions for Use
For an instruction on waiver as an affirmative defense, see CACI No. 336,
Affırmative Defense—Waiver.
Sources and Authority
• “Ordinarily, a plaintiff cannot recover on a contract without alleging and proving
performance or prevention or waiver of performance of conditions precedent and
willingness and ability to perform conditions concurrent.” (Roseleaf Corp. v.
Radis (1953) 122 Cal.App.2d 196, 206 [264 P.2d 964].)
• “ ‘[C]ase law is clear that “ ‘[w]aiver is the intentional relinquishment of a
known right after knowledge of the facts.’ [Citations.] The burden . . . is on the
party claiming a waiver of a right to prove it by clear and convincing evidence
that does not leave the matter to speculation, and “doubtful cases will be decided
against a waiver’ [citation].” [Citations.] The waiver may be either express,
based on the words of the waiving party, or implied, based on conduct indicating
an intent to relinquish the right.” (Stephens & Stephens XII, LLC v. Fireman’s
Fund Ins. Co. (2014) 231 Cal.App.4th 1131, 1148 [180 Cal.Rptr.3d 683].)
• “All case law on the subject of waiver is unequivocal: ‘ “Waiver always rests
upon intent.’ ” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout
III, Ltd. (1994) 30 Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515] [plaintiff’s claim that
defendant waived occurrence of conditions must be proved by clear and
convincing evidence].)
• “A condition is waived when a promisor by his words or conduct justifies the
promisee in believing that a conditional promise will be performed despite the
failure to perform the condition, and the promisee relies upon the promisor’s
manifestations to his substantial detriment.” (Sosin v. Richardson (1962) 210
Cal.App.2d 258, 264 [26 Cal.Rptr. 610].)
• “Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
no disputed facts and only one reasonable inference may be drawn, the issue can
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be determined as a matter of law.’ ” (DuBeck v. California Physicians’ Service
(2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• Section 84 of the Restatement Second of Contracts provides:
(1) Except as stated in Subsection (2), a promise to perform all or
part of a conditional duty under an antecedent contract in spite of the
non-occurrence of the condition is binding, whether the promise is
made before or after the time for the condition to occur, unless
(a) occurrence of the condition was a material part of the
agreed exchange for the performance of the duty and the
promisee was under no duty that it occur; or
(b) uncertainty of the occurrence of the condition was an
element of the risk assumed by the promisor.
(2) If such a promise is made before the time for the occurrence of
the condition has expired and the condition is within the control of
the promisee or a beneficiary, the promisor can make his duty again
subject to the condition by notifying the promisee or beneficiary of
his intention to do so if
(a) the notification is received while there is still a reasonable
time to cause the condition to occur under the antecedent terms
or an extension given by the promisor; and
(b) reinstatement of the requirement of the condition is not
unjust because of a material change of position by the promisee
or beneficiary; and
(c) the promise is not binding apart from the rule stated in
Subsection (1).
Secondary Sources
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.48
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.44
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.231 (Matthew Bender)
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324. Anticipatory Breach
A party can breach, or break, a contract before performance is required
by clearly and positively indicating, by words or conduct, that the party
will not or cannot meet the requirements of the contract.
If [name of plaintiff] proves that [he/she/nonbinary pronoun/it] would have
been able to fulfill the terms of the contract and that [name of defendant]
clearly and positively indicated, by words or conduct, that
[he/she/nonbinary pronoun/it] would not or could not meet the contract
requirements, then [name of defendant] breached the contract.
New September 2003; Revised May 2020
Sources and Authority
• Anticipatory Breach. Civil Code section 1440.
• “Repudiation of a contract, also known as “anticipatory breach,” occurs when a
party announces an intention not to perform prior to the time due for
performance.” (Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co. (2014)
231 Cal.App.4th 1131, 1150 [180 Cal.Rptr.3d 683].)
• Courts have defined anticipatory breach as follows: “An anticipatory breach of
contract occurs on the part of one of the parties to the instrument when he
positively repudiates the contract by acts or statements indicating that he will not
or cannot substantially perform essential terms thereof, or by voluntarily
transferring to a third person the property rights which are essential to a
substantial performance of the previous agreement, or by a voluntary act which
renders substantial performance of the contract impossible or apparently
impossible.” (C. A. Crane v. East Side Canal & Irrigation Co. (1935) 6
Cal.App.2d 361, 367 [44 P.2d 455].)
• Anticipatory breach can be express or implied: “An express repudiation is a
clear, positive, unequivocal refusal to perform; an implied repudiation results
from conduct where the promisor puts it out of his power to perform so as to
make substantial performance of his promise impossible.” (Taylor v. Johnston
(1975) 15 Cal.3d 130, 137 [123 Cal.Rptr. 641, 539 P.2d 425].)
• “In the event the promisor repudiates the contract before the time for his or her
performance has arrived, the plaintiff has an election of remedies—he or she
may ‘treat the repudiation as an anticipatory breach and immediately seek
damages for breach of contract, thereby terminating the contractual relation
between the parties, or he [or she] can treat the repudiation as an empty threat,
wait until the time for performance arrives and exercise his [or her] remedies for
actual breach if a breach does in fact occur at such time.’ ” (Romano v. Rockwell
Internat., Inc. (1996) 14 Cal.4th 479, 489 [59 Cal.Rptr.2d 20, 926 P.2d 1114].)
• Anticipatory breach can be used as an excuse for plaintiff’s failure to
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substantially perform. (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d
19, 29 [142 P.2d 22].)
• “Although it is true that an anticipatory breach or repudiation of a contract by
one party permits the other party to sue for damages without performing or
offering to perform its own obligations, this does not mean damages can be
recovered without evidence that, but for the defendant’s breach, the plaintiff
would have had the ability to perform.” (Ersa Grae Corp. v. Fluor Corp. (1991)
1 Cal.App.4th 613, 625 [2 Cal.Rptr.2d 288], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 886–893
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.54,
140.105 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.23 (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.15, 77.361
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.23
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325. Breach of Implied Covenant of Good Faith and Fair
Dealing—Essential Factual Elements
In every contract or agreement there is an implied promise of good faith
and fair dealing. This implied promise means that each party will not do
anything to unfairly interfere with the right of any other party to receive
the benefits of the contract. Good faith means honesty of purpose
without any intention to mislead or to take unfair advantage of another.
Generally speaking, it means being faithful to one’s duty or obligation.
However, the implied promise of good faith and fair dealing cannot
create obligations that are inconsistent with the terms of the contract.
[Name of plaintiff] claims that [name of defendant] violated the duty to act
fairly and in good faith. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into a
contract;
[2. That [name of plaintiff] did all, or substantially all of the
significant things that the contract required [him/her/nonbinary
pronoun/it] to do [or that [he/she/nonbinary pronoun/it] was
excused from having to do those things;]
[3. That all conditions required for [name of defendant]’s
performance [had occurred/ [or] were excused];]
4. That [name of defendant] [specify conduct that plaintiff claims
prevented plaintiff from receiving the benefits under the contract];
5. That by doing so, [name of defendant] did not act fairly and in
good faith; and
6. That [name of plaintiff] was harmed by [name of defendant]’s
conduct.
New April 2004; Revised June 2011, December 2012, June 2014, November 2019,
May 2020
Directions for Use
This instruction should be given if the plaintiff has brought a separate count for
breach of the covenant of good faith and fair dealing. It may be given in addition to
CACI No. 303, Breach of Contract—Essential Factual Elements, if breach of
contract on other grounds is also alleged.
Include element 2 if the plaintiff’s substantial performance of contract requirements
is at issue. Include element 3 if the contract contains conditions precedent that must
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occur before the defendant is required to perform. For discussion of element 3, see
the Directions for Use to CACI No. 303.
In element 4, insert an explanation of the defendant’s conduct that violated the duty
to act in good faith.
If a claim for breach of the implied covenant does nothing more than allege a mere
contract breach and, relying on the same alleged acts, simply seeks the same
damages or other relief already claimed in a contract cause of action, it may be
disregarded as superfluous because no additional claim is actually stated. (Careau &
Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [272
Cal.Rptr. 387].) The harm alleged in element 6 may produce contract damages that
are different from those claimed for breach of the express contract provisions. (See
Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194
Cal.App.4th 873, 885 [123 Cal.Rptr.3d 736] [noting that gravamen of the two claims
rests on different facts and different harm].)
It has been noted that one may bring a claim for breach of the implied covenant
without also bringing a claim for breach of other contract terms. (See Careau &
Co., supra, 222 Cal.App.3d at p. 1395.) Thus it would seem that a jury should be
able to find a breach of the implied covenant even if it finds for the defendant on all
other breach of contract claims.
Sources and Authority
• “There is an implied covenant of good faith and fair dealing in every contract
that neither party will do anything which will injure the right of the other to
receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co.
(1958) 50 Cal.2d 654, 658 [328 P.2d 198], internal citation omitted.)
• “ ‘ “Every contract imposes upon each party a duty of good faith and fair
dealing in its performance and its enforcement.” ’ [] The covenant of good faith
finds particular application in situations where one party is invested with a
discretionary power affecting the rights of another. Such power must be
exercised in good faith.” (Carma Developers (Cal.), Inc. v. Marathon
Development California, Inc. (1992) 2 Cal.4th 342, 371–372 [6 Cal.Rptr.2d 467,
826 P.2d 710], internal citations omitted.)
• “When one party to a contract retains the unilateral right to amend the
agreement governing the parties’ relationship, its exercise of that right is
constrained by the covenant of good faith and fair dealing which precludes
amendments that operate retroactively to impair accrued rights.” (Cobb v.
Ironwood Country Club (2015) 233 Cal.App.4th 960, 963 [183 Cal.Rptr.3d
282].)
• “The covenant of good faith and fair dealing, implied by law in every contract,
exists merely to prevent one contracting party from unfairly frustrating the other
party’s right to receive the benefits of the agreement actually made. The
covenant thus cannot ‘ “ ‘be endowed with an existence independent of its
contractual underpinnings.’ ” ’ It cannot impose substantive duties or limits on
the contracting parties beyond those incorporated in the specific terms of their
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agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349–350 [100
Cal.Rptr.2d 352, 8 P.3d 1089], original italics, internal citations omitted.)
• “The implied covenant of good faith and fair dealing cannot be read to require
defendants to take a particular action that is discretionary under the contract
when the contract also expressly grants them the discretion to take a different
action. To apply the covenant to require a party to take one of two alternative
actions expressly allowed by the contract and forgo the other would contravene
the rule that the implied covenant of good faith and fair dealing may not be
‘read to prohibit a party from doing that which is expressly permitted by an
agreement.’ ” (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230,
256 [244 Cal.Rptr.3d 797], original italics.)
• “The implied covenant of good faith and fair dealing rests upon the existence of
some specific contractual obligation. ‘The covenant of good faith is read into
contracts in order to protect the express covenants or promises of the contract,
not to protect some general public policy interest not directly tied to the
contract’s purpose.’ . . . ‘In essence, the covenant is implied as a supplement to
the express contractual covenants, to prevent a contracting party from engaging
in conduct which (while not technically transgressing the express covenants)
frustrates the other party’s rights to the benefits of the contract.’ ” (Racine &
Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026,
1031–1032 [14 Cal.Rptr.2d 335], internal citations omitted.)
• “There is no obligation to deal fairly or in good faith absent an existing contract.
If there exists a contractual relationship between the parties . . . the implied
covenant is limited to assuring compliance with the express terms of the
contract, and cannot be extended to create obligations not contemplated in the
contract.” (Racine & Laramie, Ltd., supra, 11 Cal.App.4th at p. 1032, internal
citations omitted.)
• “Although breach of the implied covenant often is pleaded as a separate count, a
breach of the implied covenant is necessarily a breach of contract.” (Digerati
Holdings, LLC, supra, 194 Cal.App.4th at p. 885.)
• “ ‘[B]reach of a specific provision of the contract is not . . . necessary’ to a
claim for breach of the implied covenant of good faith and fair dealing.” (Thrifty
Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230,
1244 [160 Cal.Rptr.3d 718].)
• “ ‘It is universally recognized the scope of conduct prohibited by the covenant of
good faith is circumscribed by the purposes and express terms of the contract.’
Violation of an express provision is not, however, required. ‘Nor is it necessary
that the party’s conduct be dishonest. Dishonesty presupposes subjective
immorality; the covenant of good faith can be breached for objectively
unreasonable conduct, regardless of the actor’s motive.’ ‘A party violates the
covenant if it subjectively lacks belief in the validity of its act or if its conduct
is objectively unreasonable. [Citations.] In the case of a discretionary power, it
has been suggested the covenant requires the party holding such power to
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exercise it “for any purpose within the reasonable contemplation of the parties at
the time of formation—to capture opportunities that were preserved upon
entering the contract, interpreted objectively.” ’ [¶] ‘The issue of whether the
implied covenant of good faith and fair dealing has been breached is ordinarily
“a question of fact unless only one inference [can] be drawn from the
evidence.” ’ ” (Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280,
291–292 [251 Cal.Rptr.3d 779], internal citations omitted.)
• “If the allegations do not go beyond the statement of a mere contract breach and,
relying on the same alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they may be
disregarded as superfluous as no additional claim is actually stated. Thus, absent
those limited cases where a breach of a consensual contract term is not claimed
or alleged, the only justification for asserting a separate cause of action for
breach of the implied covenant is to obtain a tort recovery.” (Careau & Co.,
supra, 222 Cal.App.3d at p. 1395.)
• “[W]e believe that the gravamen of the two counts differs. The gravamen of the
breach of contract count is [cross defendants’] alleged failure to comply with
their express contractual obligations specified in paragraph 37 of the cross-
complaint, while the gravamen of the count for breach of the implied covenant
of good faith and fair dealing is their alleged efforts to undermine or prevent the
potential sale and distribution of the film, both by informing distributors that the
film was unauthorized and could be subject to future litigation and by seeking an
injunction. (Digerati Holdings, LLC, supra, 194 Cal. App. 4th at p. 885.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 822, 824–826
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.12, 140.50
et seq. (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 23, Suing or
Defending Action for Breach of Duty of Good Faith and Fair Dealing, 23.05
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326. Assignment Contested
[Name of plaintiff] was not a party to the original contract. However,
[name of plaintiff] may bring a claim for breach of the contract if [he/she/
nonbinary pronoun/it] proves that [name of assignor] transferred [his/her/
nonbinary pronoun/its] rights under the contract to [name of plaintiff].
This transfer is referred to as an “assignment.”
[Name of plaintiff] must prove that [name of assignor] intended to transfer
[his/her/nonbinary pronoun/its] contract rights to [name of plaintiff]. In
deciding [name of assignor]’s intent, you should consider the entire
transaction and the conduct of the parties to the assignment.
[A transfer of contract rights does not necessarily have to be made in
writing. It may be oral or implied by the conduct of the parties to the
assignment.]
New February 2005
Directions for Use
The bracketed third paragraph should be used only in cases involving a transfer that
may be made without a writing.
Sources and Authority
• Oral Assignments. Civil Code section 1052.
• “While no particular form of assignment is required, it is essential to the
assignment of a right that the assignor manifest an intention to transfer the
right.” (Sunburst Bank v. Executive Life Insurance Co. (1994) 24 Cal.App.4th
1156, 1164 [29 Cal.Rptr.2d 734], internal citations omitted.)
• “The burden of proving an assignment falls upon the party asserting rights
thereunder. In an action by an assignee to enforce an assigned right, the evidence
must not only be sufficient to establish the fact of assignment when that fact is
in issue, but the measure of sufficiency requires that the evidence of assignment
be clear and positive to protect an obligor from any further claim by the primary
obligee.” (Cockerell v. Title Insurance & Trust Co. (1954) 42 Cal.2d 284, 292
[267 P.2d 16], internal citations omitted.)
• “The accrued right to collect the proceeds of the fire insurance policy is a chose
in action, and an effective assignment thereof may be expressed orally as well as
in writing; may be the product of inference; and where the parties to a
transaction involving such a policy by their conduct indicate an intention to
transfer such proceeds, the courts will imply an assignment thereof. In making
such a determination, substance and not form controls.” (Greco v. Oregon
Mutual Fire Insurance Co. (1961) 191 Cal.App.2d 674, 683 [12 Cal.Rptr. 802],
internal citations omitted.)
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• “An assignor may not maintain an action upon a claim after making an absolute
assignment of it to another; his right to demand performance is extinguished, the
assignee acquiring such right. To ‘assign’ ordinarily means to transfer title or
ownership of property, but an assignment, to be effective, must include
manifestation to another person by the owner of his intention to transfer the
right, without further action, to such other person or to a third person. It is the
substance and not the form of a transaction which determines whether an
assignment was intended. If from the entire transaction and the conduct of the
parties it clearly appears that the intent of the parties was to pass title to the
chose in action, then an assignment will be held to have taken place.” (McCown
v. Spencer (1970) 8 Cal.App.3d 216, 225 [87 Cal.Rptr. 213], internal citations
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 727–739
6 California Forms of Pleading and Practice, Ch. 60, Assignments, § 60.20 (Matthew
Bender)
27 California Legal Forms, Ch. 76, Assignments of Rights and Obligations, § 76.201
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59
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327. Assignment Not Contested
[Name of plaintiff] was not a party to the original contract. However, [he/
she/nonbinary pronoun/it] may bring a claim for breach of contract
because [name of assignor] transferred the rights under the contract to
[name of plaintiff]. This transfer is referred to as an “assignment.”
New February 2005
Directions for Use
This instruction is intended to explain to the jury why a party not named in the
original contract is nevertheless a party to the case.
Sources and Authority
• Oral Assignment. Civil Code section 1052.
• “To ‘assign’ ordinarily means to transfer title or ownership of property, but an
assignment, to be effective, must include manifestation to another person by the
owner of his intention to transfer the right, without further action, to such other
person or to a third person. It is the substance and not the form of a transaction
which determines whether an assignment was intended. If from the entire
transaction and the conduct of the parties it clearly appears that the intent of the
parties was to pass title to the chose in action, then an assignment will be held
to have taken place.” (McCown v. Spencer (1970) 8 Cal.App.3d 216, 225 [87
Cal.Rptr. 213], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 727–739
6 California Forms of Pleading and Practice, Ch. 60, Assignments, § 60.20 (Matthew
Bender)
27 California Legal Forms, Ch. 76, Assignments of Rights and Obligations, § 76.201
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59
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328. Breach of Implied Duty to Perform With Reasonable
Care—Essential Factual Elements
The parties’ contract requires that [name of defendant] [specify
performance alleged to have been done negligently, e.g., install cable
television service]. It is implied in the contract that this performance will
be done competently and with reasonable care. [Name of plaintiff] claims
that [name of defendant] breached this implied condition. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into a
contract;
[2. That [name of plaintiff] did all, or substantially all of the
significant things that the contract required [him/her/nonbinary
pronoun/it] to do;]
[or]
[2. That [name of plaintiff] was excused from having to [specify things
that plaintiff did not do, e.g., obtain a guarantor on the contract];]
[3. That [specify occurrence of all conditions required by the contract
for [name of defendant]’s performance, e.g., the property was
rezoned for residential use];]
[or]
[3. That [specify condition(s) that did not occur] [was/were] [waived/
excused];]
4. That [name of defendant] failed to use reasonable care in [specify
performance]; and
5. That [name of plaintiff] was harmed by [name of defendant]’s
conduct.
New June 2015
Directions for Use
Give this instruction if the plaintiff alleges harm from the defendant’s failure to
perform a contractual obligation with reasonable care. Every contract includes an
implied duty to perform required acts competently. (Holguin v. Dish Network LLC
(2014) 229 Cal.App.4th 1310, 1324 [178 Cal.Rptr.3d 100].) If negligent
performance is alleged, the jury should be instructed that the contract contains this
implied duty. The jury must then decide whether the duty has been breached. It
must also find all of the other elements required for breach of contract. (See CACI
No. 303, Breach of Contract—Essential Factual Elements.)
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This instruction may be adapted for use as an affirmative defense if the defendant
asserts that the plaintiff is not entitled to recover on the contract because of the
plaintiff’s failure to perform its duties competently. (See Roscoe Moss Co. v. Jenkins
(1942) 55 Cal.App.2d 369, 376–378 [130 P.2d 477].)
For discussion of issues with the options for elements 2 and 3, see the Directions
for Use to CACI No. 303, Breach of Contract—Essential Factual Elements.
Sources and Authority
• “[E]xpress contractual terms give rise to implied duties, violations of which may
themselves constitute breaches of contract. ‘ “Accompanying every contract is a
common-law duty to perform with care, skill, reasonable expedience, and
faithfulness the thing agreed to be done, and a negligent failure to observe any
of these conditions is a tort, as well as a breach of the contract.” The rule which
imposes this duty is of universal application as to all persons who by contract
undertake professional or other business engagements requiring the exercise of
care, skill and knowledge; the obligation is implied by law and need not be
stated in the agreement [citation].’ ” (Holguin, supra, 229 Cal.App.4th at p.
1324.)
• “A contract to perform services gives rise to a duty of care which requires that
such services be performed in a competent and reasonable manner.” (North
American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [69
Cal.Rptr.2d 466].)
• “[T]he statement in the written contract that it contains the entire agreement of
the parties cannot furnish the appellants an avenue of escape from the entirely
reasonable obligation implied in all contracts to the effect that the work
performed ‘shall be fit and proper for its said intended use,’ as stated by the trial
court.” (Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d 552].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 822, 824
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.12
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Crompton et al., Matthew Bender Practice Guide: California Contract Litigation,
Ch. 21, Asserting a Particular Construction of Contract, 21.79
329. Reserved for Future Use
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330. Affirmative Defense—Unilateral Mistake of Fact
[Name of defendant] claims that there was no contract because [he/she/
nonbinary pronoun/it] was mistaken about [insert description of mistake].
To succeed, [name of defendant] must prove all of the following:
1. That [name of defendant] was mistaken about [insert description of
mistake];
2. That [name of plaintiff] knew [name of defendant] was mistaken
and used that mistake to take advantage of [him/her/nonbinary
pronoun/it];
3. That [name of defendant]’s mistake was not caused by [his/her/
nonbinary pronoun/its] excessive carelessness; and
4. That [name of defendant] would not have agreed to enter into the
contract if [he/she/nonbinary pronoun/it] had known about the
mistake.
If you decide that [name of defendant] has proved all of the above, then
no contract was created.
New September 2003; Revised April 2004
Directions for Use
If the mistake is one of law, this may not be a jury issue.
This instruction does not contain the requirement that the mistake be material to the
contract because the materiality of a representation is a question of law. (Merced
County Mutual Fire Insurance Co. v. State of California (1991) 233 Cal.App.3d
765, 772 [284 Cal.Rptr. 680].) Accordingly, the judge would decide whether an
alleged mistake was material, and that mistake would be inserted into this
instruction.
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
• Mistake. Civil Code section 1576.
• Mistake of Fact. Civil Code section 1577.
• “It is settled that to warrant a unilateral rescission of a contract because of
mutual mistake, the mistake must relate to basic or material fact, not a collateral
matter.” (Wood v. Kalbaugh (1974) 39 Cal.App.3d 926, 932 [114 Cal.Rptr. 673].)
• “A mistake need not be mutual. Unilateral mistake is ground for relief where the
mistake is due to the fault of the other party or the other party knows or has
reason to know of the mistake. . . . To rely on a unilateral mistake of fact, [the
party] must demonstrate his mistake was not caused by his ‘neglect of a legal
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duty.’ Ordinary negligence does not constitute the neglect of a legal duty as that
term is used in section 1577.” (Architects & Contractors Estimating Service, Inc.
v. Smith (1985) 164 Cal.App.3d 1001, 1007–1008 [211 Cal.Rptr. 45], internal
citations omitted.)
• To prevail on a unilateral mistake claim, the defendant must prove that the
plaintiff knew that the defendant was mistaken and that plaintiff used that
mistake to take advantage of the defendant: “Defendants contend that a material
mistake of fact—namely, the defendants’ belief that they would not be obligated
to install a new roof upon the residence—prevented contract formation. A
unilateral mistake of fact may be the basis of relief. However, such a unilateral
mistake may not invalidate a contract without a showing that the other party to
the contract was aware of the mistaken belief and unfairly utilized that mistaken
belief in a manner enabling him to take advantage of the other party.” (Meyer v.
Benko (1976) 55 Cal.App.3d 937, 944 [127 Cal.Rptr. 846], internal citations
omitted.)
• “Failure to make reasonable inquiry to ascertain or effort to understand the
meaning and content of the contract upon which one relies constitutes neglect of
a legal duty such as will preclude recovery for unilateral mistake of fact.” (Wal-
Noon Corporation v. Hill (1975) 45 Cal.App.3d 605, 615 [119 Cal.Rptr. 646].)
However, “[o]rdinary negligence does not constitute the neglect of a legal duty
as that term is used in section 1577.” (Architects & Contractors Estimating
Service, Inc. v. Smith, supra, 164 Cal.App.3d at p. 1008.)
• Neglect of legal duty has been equated with “gross negligence,” which is defined
as “the want of even scant care or an extreme departure from the ordinary
standard of conduct.” (Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 588,
594 [297 P.2d 644].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 257–276
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.50–215.57, 215.141 (Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.90 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.350 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.24
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 16, Attacking
or Defending Existence of Contract—Mistake, 16.08[2], 16.13–16.16, 16.18
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331. Affirmative Defense—Bilateral Mistake
[Name of defendant] claims that there was no contract because both
parties were mistaken about [insert description of mistake]. To succeed,
[name of defendant] must prove both of the following:
1. That both parties were mistaken about [insert description of
mistake]; and
2. That [name of defendant] would not have agreed to enter into this
contract if [he/she/nonbinary pronoun/it] had known about the
mistake.
If you decide that [name of defendant] has proved both of the above, then
no contract was created.
New September 2003
Directions for Use
This instruction does not contain the requirement that the mistake be material to the
contract because the materiality of a representation is a question of law. (Merced
County Mutual Fire Insurance Co. v. State of California (1991) 233 Cal.App.3d
765, 772 [284 Cal.Rptr. 680].) Accordingly, the judge would decide whether an
alleged mistake was material, and that mistake would be inserted into this
instruction.
If the mistake is one of law, this may not be a jury issue.
Sources and Authority
• When Consent Not Free. Civil Code section 1567.
• Consent Obtained by Fraud. Civil Code section 1568.
• Mistake. Civil Code section 1576.
• Mistake of Fact. Civil Code section 1577.
• Mistake of Law. Civil Code section 1578.
• Rescission of Contract. Civil Code section 1689.
• “A mistake of fact may be urged as a defense to an action upon a contract only
if the mistake is material to the contract.” (Edwards v. Lang (1961) 198
Cal.App.2d 5, 12 [18 Cal.Rptr. 60].)
• “A ‘mistake’ within the meaning of subdivision (b)(1) of section 1689 of the
Civil Code can be either one of fact or of law. ‘Generally a mistake of fact
occurs when a person understands the facts to be other than they are . . . .’
When both parties understand the facts other than they are, the mistake
necessarily is mutual and thus becomes a basis for rescission.” (Crocker-Anglo
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Nat’l Bank v. Kuchman (1964) 224 Cal.App.2d 490, 496 [36 Cal.Rptr. 806],
internal citations omitted.)
• “[T]o warrant a unilateral rescission of a contract because of mutual mistake, the
mistake must relate to basic or material fact, not a collateral matter.” (Wood v.
Kalbaugh (1974) 39 Cal.App.3d 926, 932 [114 Cal.Rptr 673].)
• “Where, as here, the extrinsic evidence is not in conflict, the determination of
whether a mutual mistake occurred is a question of law.” (Hess v. Ford Motor
Co. (2002) 27 Cal.4th 516, 527 [117 Cal. Rptr. 2d 220, 41 P.3d 46].)
• “Ordinary negligence does not bar a claim for mutual mistake because ‘ “[t]here
is an element of carelessness in nearly every case of mistake . . . .” ’ ‘Only
gross negligence or ‘preposterous or irrational’ conduct will [bar] mutual
mistake.’ ” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218
Cal.App.4th 1230, 1243 [160 Cal.Rptr.3d 718], internal citation omitted.)
• “Where parties are aware at the time the contract is entered into that a doubt
exists in regard to a certain matter and contract on that assumption, the risk of
the existence of the doubtful matter is assumed as an element of the bargain.”
(Guthrie v. Times-Mirror Co. (1975) 51 Cal.App.3d 879, 885 [124 Cal.Rptr
577].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 257–276
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.50–215.57, 215.140 (Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.90 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.350 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.24
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 16, Attacking
or Defending Existence of Contract—Mistake, 16.08[1], 16.09, 16.11, 16.18
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332. Affirmative Defense—Duress
[Name of defendant] claims that there was no contract because [his/her/
nonbinary pronoun] consent was given under duress. To succeed, [name of
defendant] must prove all of the following:
1. That [name of plaintiff] used a wrongful act or wrongful threat to
pressure [name of defendant] into consenting to the contract;
2. That [name of defendant] was so afraid or intimidated by the
wrongful act or wrongful threat that [he/she/nonbinary pronoun]
did not have the free will to refuse to consent to the contract; and
3. That [name of defendant] would not have consented to the contract
without the wrongful act or wrongful threat.
An act or a threat is wrongful if [insert relevant rule—e.g., “a criminal act
is threatened”].
If you decide that [name of defendant] has proved all of the above, then
no contract was created.
New September 2003; Revised December 2005
Directions for Use
Use CACI No. 333, Affırmative Defense—Economic Duress, in cases involving
economic duress.
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
• Duress. Civil Code section 1569.
• Menace. Civil Code section 1570.
• “Menace” is considered to be duress: “Under the modern rule, ‘ “[d]uress, which
includes whatever destroys one’s free agency and constrains [her] to do what is
against [her] will, may be exercised by threats, importunity or any species of
mental coercion. It is shown where a party ‘intentionally used threats or pressure
to induce action or nonaction to the other party’s detriment.’ ” ’ The coercion
must induce the assent of the coerced party, who has no reasonable alternative to
succumbing.” (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84 [260
Cal.Rptr. 403], internal citations omitted.)
• “Duress envisions some unlawful action by a party by which one’s consent is
obtained through fear or threats.” (Keithley v. Civil Service Bd. of The City of
Oakland (1970) 11 Cal.App.3d 443, 450 [89 Cal.Rptr. 809], internal citations
omitted.)
• Duress is found only where fear is intentionally used as a means of procuring
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consent: “[A]n action for duress and menace cannot be sustained when the
voluntary action of the apprehensive party is induced by his speculation upon or
anticipation of a future event suggested to him by the defendant but not
threatened to induce his conduct. The issue in each instance is whether the
defendant intentionally exerted an unlawful pressure on the injured party to
deprive him of contractual volition and induce him to act to his own detriment.”
(Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894–895 [57 Cal.Rptr. 19].)
• It is wrongful to use the threat of criminal prosecution to obtain a consent:
“California law is clear that an agreement obtained by threat of criminal
prosecution constitutes menace and is unenforceable as against public policy.”
(Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15
Cal.App.4th 119, 127 [18 Cal.Rptr.2d 626].) However, a threat of legitimate civil
action is not considered wrongful: “[T]he action or threat in duress or menace
must be unlawful, and a threat to take legal action is not unlawful unless the
party making the threat knows the falsity of his claim.” (Odorizzi v. Bloomfield
School Dist. (1966) 246 Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
• Standard duress is evaluated under a subjective standard: “The question in each
case [is], Was the person so acted upon by threats of the person claiming the
benefit of the contract, for the purpose of obtaining such contract, as to be bereft
of the quality of mind essential to the making of a contract, and was the contract
thereby obtained? Hence, under this theory duress is to be tested, not by the
nature of the threats, but rather by the state of mind induced thereby in the
victim.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 744 [129
Cal.Rptr. 566].)
• The wrongful acts of a third party may constitute duress sufficient to allow
rescission of a contract with a party, who, although not participating in those
wrongful acts, had knowledge of the innocent party’s position. (Leeper v.
Beltrami (1959) 53 Cal.2d 195, 205–206 [1 Cal.Rptr. 12, 347 P.2d 12].)
• “[Defendant has] the burden of proving by a preponderance of the evidence the
affirmative of the issues of duress and plaintiff’s default.” (Fio Rito v. Fio Rito
(1961) 194 Cal.App.2d 311, 322 [14 Cal.Rptr. 845]; cf. Stevenson v. Stevenson
(1940) 36 Cal.App.2d 494, 500 [97 P.2d 982].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 310–316
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121
(Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.20 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.351 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
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1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.20–17.24[1]
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333. Affirmative Defense—Economic Duress
[Name of defendant] claims that there was no contract because [his/her/
nonbinary pronoun/its] consent was given under duress. To succeed, [name
of defendant] must prove all of the following:
1. That [name of plaintiff] used a wrongful act or wrongful threat to
pressure [name of defendant] into consenting to the contract;
2. That a reasonable person in [name of defendant]’s position would
have believed that there was no reasonable alternative except to
consent to the contract; and
3. That [name of defendant] would not have consented to the contract
without the wrongful act or wrongful threat.
An act or a threat is wrongful if [insert relevant rule, e.g., “a bad-faith
breach of contract is threatened”].
If you decide that [name of defendant] has proved all of the above, then
no contract was created.
New September 2003; Revised December 2005, June 2011, December 2011, May
2020
Directions for Use
Different elements may apply if economic duress is alleged to avoid an agreement
to settle a debt. (See Perez v. Uline, Inc. (2007) 157 Cal.App.4th 953, 959–960 [68
Cal.Rptr.3d 872].)
Element 2 requires that the defendant have had “no reasonable alternative” other
than to consent. Economic duress to avoid a settlement agreement may require that
the creditor be placed in danger of imminent bankruptcy or financial ruin. (See Rich
& Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154,
1156–1157, 204 Cal.Rptr. 86].) At least one court has stated this standard in a case
not involving a settlement (see Uniwill v. City of Los Angeles (2004) 124
Cal.App.4th 537, 545 [21 Cal.Rptr.3d 464]), though most cases do not require that
the only alternative be bankruptcy or financial ruin. (See, e.g., Chan v. Lund (2010)
188 Cal.App.4th 1159, 1173–1174 [116 Cal.Rptr.3d 122].)
In the next-to-last paragraph, state the rule that makes the alleged conduct wrongful.
(See Restatement 2d of Contracts, § 176, When a Threat is Improper.) The conduct
must be something more than the breach or threatened breach of the contract itself.
An act for which a party has an adequate legal remedy is not duress. (River Bank
America v. Diller (1995) 38 Cal.App.4th 1400, 1425 [45 Cal.Rptr.2d 790].)
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
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• “The doctrine of ‘economic duress’ can apply when one party has done a
wrongful act which is sufficiently coercive to cause a reasonably prudent person,
faced with no reasonable alternative, to agree to an unfavorable contract. The
party subjected to the coercive act, and having no reasonable alternative, can
then plead ‘economic duress’ to avoid the contract.” (CrossTalk Productions, Inc.
v. Jacobson (1998) 65 Cal.App.4th 631, 644 [76 Cal.Rptr.2d 615], internal
citation omitted.)
• The nonexistence of a “reasonable alternative” is a question of fact. (CrossTalk
Productions, Inc., supra, 65 Cal.App.4th at p. 644.)
• “ ‘At the outset it is helpful to acknowledge the various policy considerations
which are involved in cases involving economic duress. Typically, those claiming
such coercion are attempting to avoid the consequences of a modification of an
original contract or of a settlement and release agreement. On the one hand,
courts are reluctant to set aside agreements because of the notion of freedom of
contract and because of the desirability of having private dispute resolutions be
final. On the other hand, there is an increasing recognition of the law’s role in
correcting inequitable or unequal exchanges between parties of disproportionate
bargaining power and a greater willingness to not enforce agreements which
were entered into under coercive circumstances.’ ” (Rich & Whillock, Inc., supra,
157 Cal.App.3d at p. 1158.)
• “ ‘As it has evolved to the present day, the economic duress doctrine is not
limited by early statutory and judicial expressions requiring an unlawful act in
the nature of a tort or a crime. . . . Instead, the doctrine now may come into
play upon the doing of a wrongful act which is sufficiently coercive to cause a
reasonably prudent person faced with no reasonable alternative to succumb to
the perpetrator’s pressure. . . . The assertion of a claim known to be false or a
bad faith threat to breach a contract or to withhold a payment may constitute a
wrongful act for purposes of the economic duress doctrine. . . . Further, a
reasonably prudent person subject to such an act may have no reasonable
alternative but to succumb when the only other alternative is bankruptcy or
financial ruin. . . .’ ” (Chan, supra, 188 Cal.App.4th at pp. 1173–1174.)
• “ ‘It is not duress . . . to take a different view of contract rights, even though
mistaken, from that of the other contracting party, and it is not duress to refuse,
in good faith, to proceed with a contract, even though such refusal might later be
found to be wrong. [¶] . . . “A mere threat to withhold a legal right for the
enforcement of which a person has an adequate [legal] remedy is not duress.” ’ ”
(River Bank America, supra, 38 Cal.App.4th at p. 1425.)
• “[W]rongful acts will support a claim of economic duress when ‘a reasonably
prudent person subject to such an act may have no reasonable alternative but to
succumb when the only other alternative is bankruptcy or financial ruin.’ ”
(Uniwill, supra, 124 Cal.App.4th at p. 545.)
• “Economic duress has been recognized as a basis for rescinding a settlement.
However, the courts, in desiring to protect the freedom of contracts and to
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accord finality to a privately negotiated dispute resolution, are reluctant to set
aside settlements and will apply ‘economic duress’ only in limited circumstances
and as a ‘last resort.’ ” (San Diego Hospice v. County of San Diego (1995) 31
Cal.App.4th 1048, 1058 [37 Cal.Rptr.2d 501].)
• “Required criteria that must be proven to invalidate a settlement agreement are:
‘(1) the debtor knew there was no legitimate dispute and that it was liable for
the full amount; (2) the debtor nevertheless refused in bad faith to pay and
thereby created the economic duress of imminent bankruptcy; (3) the debtor,
knowing the vulnerability its own bad faith had created, used the situation to
escape an acknowledged debt; and (4) the creditor was forced to accept an
inequitably low amount. . . .’ ” (Perez, supra, 157 Cal.App.4th at pp. 959–960.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 315–317
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.22, 215.122 (Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.24 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.20–17.24[2]
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334. Affirmative Defense—Undue Influence
[Name of defendant] claims that no contract was created because [he/she/
nonbinary pronoun] was unfairly pressured by [name of plaintiff] into
consenting to the contract.
To succeed, [name of defendant] must prove both of the following:
1. That [name of plaintiff] used
1. [a relationship of trust and confidence] [or]
1. [[name of defendant]’s weakness of mind] [or]
1. [[name of defendant]’s needs or distress]
1. to induce or pressure [name of defendant] into consenting to the
contract; and
2. That [name of defendant] would not otherwise have consented to
the contract.
If you decide that [name of defendant] has proved both of the above, then
no contract was created.
New September 2003
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
• Undue Influence. Civil Code section 1575.
• The question of undue influence is decided as a question of fact: “[D]irect
evidence of undue influence is rarely obtainable and, thus the court is normally
relegated to determination by inference from the totality of facts and
circumstances. Indeed, there are no fixed definitions or inflexible formulas.
Rather, we are concerned with whether from the entire context it appears that
one’s will was overborne and he was induced to do or forbear to do an act
which he would not do, or would do, if left to act freely.” (Keithley v. Civil
Service Bd. of the City of Oakland (1970) 11 Cal.App.3d 443, 451 [89 Cal.Rptr.
809], internal citations omitted.)
• “In essence, undue influence consists of the use of excessive pressure by a
dominant person over a servient person resulting in the apparent will of the
servient person being in fact the will of the dominant person. The undue
susceptibility to such overpersuasive influence may be the product of physical or
emotional exhaustion or anguish which results in one’s inability to act with
unencumbered volition.” (Keithley, supra, 11 Cal.App.3d at p. 451.)
• Whether or not the parties have a confidential relationship is a question of fact:
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“It is, of course, well settled that while the mere fact that a relationship is
friendly and intimate does not necessarily amount to a confidential relationship,
such relationship may be said to exist whenever trust and confidence is reposed
by one person in the integrity and fidelity of another. It is likewise frequently
emphasized that the existence of a confidential relationship presents a question
of fact which, of necessity, may be determined only on a case by case basis.”
(O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 153 [119 Cal.Rptr. 245], internal
citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 317–322
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.40–215.42, 215.130–215.132 (Matthew
Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.70 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.352 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.25–17.28
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335. Affirmative Defense—Fraud
[Name of defendant] claims that no contract was created because [his/her/
nonbinary pronoun/its] consent was obtained by fraud. To succeed, [name
of defendant] must prove all of the following:
1. That [name of plaintiff] represented that [insert alleged fraudulent
statement];
2. That [name of plaintiff] knew that the representation was not true;
3. That [name of plaintiff] made the representation to persuade
[name of defendant] to agree to the contract;
4. That [name of defendant] reasonably relied on this representation;
and
5. That [name of defendant] would not have entered into the contract
if [he/she/nonbinary pronoun/it] had known that the representation
was not true.
If you decide that [name of defendant] has proved all of the above, then
no contract was created.
New September 2003
Directions for Use
This instruction covers intentional misrepresentation under the first alternative
presented in Civil Code section 1572. The other types of fraud that are set forth in
section 1572 are negligent misrepresentation, concealment of a material fact, and
false promise.
If the case involves an alleged negligent misrepresentation, substitute the following
for element 2: “That [name of plaintiff] had no reasonable grounds for believing the
representation was true.”
If the case involves concealment, the following may be substituted for element 1:
“That [name of plaintiff] intentionally concealed an important fact from [name of
defendant], creating a false representation.” See CACI No. 1901, Concealment, for
alternative ways of proving this element.
If the case involves a false promise, substitute the following for element 1: “That
[name of plaintiff] made a promise that [he/she/nonbinary pronoun/it] did not intend
to perform” and insert the word “promise” in place of the word “representation”
throughout the remainder of the instruction.
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
• Actual Fraud. Civil Code section 1572.
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• Fraud can be found in making a misstatement of fact, as well as in the
concealment of a fact: “Actual fraud involves conscious misrepresentation, or
concealment, or non-disclosure of a material fact which induces the innocent
party to enter the contract.” (Odorizzi v. Bloomfield School Dist. (1966) 246
Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
• Fraud may be asserted as an affirmative defense: “One who has been induced to
enter into a contract by false and fraudulent representations may rescind the
contract; or he may affirm it, keeping what he has received under it, and
maintain an action to recover damages he has sustained by reason of the fraud;
or he may set up such damages as a complete or partial defense if sued on the
contract by the other party.” (Grady v. Easley (1941) 45 Cal.App.2d 632, 642
[114 P.2d 635].)
• “It is well established that a defrauded defendant may set up the fraud as a
defense and, in fact, may even recoup his damages by counterclaim in an action
brought by the guilty party to the contract. The right to avoid for fraud, however,
is lost if the injured party, after acquiring knowledge of the fraud, manifests an
intention to affirm the contract.” (Bowmer v. H. C. Louis, Inc. (1966) 243
Cal.App.2d 501, 503 [52 Cal.Rptr. 436], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 286–309
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.70–215.72, 215.144 (Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.40 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.353 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.24
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.09, 17.12–17.18
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336. Affirmative Defense—Waiver
[Name of defendant] claims that [he/she/nonbinary pronoun/it] did not have
to [insert description of performance] because [name of plaintiff] gave up
[his/her/nonbinary pronoun/its] right to have [name of defendant] perform
[this/these] obligation[s]. This is called a “waiver.”
To succeed, [name of defendant] must prove both of the following by clear
and convincing evidence:
1. That [name of plaintiff] knew [name of defendant] was required to
[insert description of performance]; and
2. That [name of plaintiff] freely and knowingly gave up [his/her/
nonbinary pronoun/its] right to have [name of defendant] perform
[this/these] obligation[s].
A waiver may be oral or written or may arise from conduct that shows
that [name of plaintiff] gave up that right.
If [name of defendant] proves that [name of plaintiff] gave up
[his/her/nonbinary pronoun/its] right to [name of defendant]’s performance
of [insert description of performance], then [name of defendant] was not
required to perform [this/these] obligation[s].
New September 2003
Directions for Use
This issue is decided under the “clear and convincing” standard of proof. See CACI
No. 201, Highly Probable—Clear and Convincing Proof.
Sources and Authority
• “Waiver is the intentional relinquishment of a known right after knowledge of
the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422].)
• “ ‘ “The waiver may be either express, based on the words of the waiving party,
or implied, based on conduct indicating an intent to relinquish the right.
[Citation.]” [Citation.] Thus, “California courts will find waiver when a party
intentionally relinquishes a right or when that party’s acts are so inconsistent
with an intent to enforce the right as to induce a reasonable belief that such right
has been relinquished.” [Citation.]’ [Citation.]” (Wind Dancer Production Group
v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78 [215 Cal.Rptr.3d 835].)
• “Acceptance of benefits under a lease is conduct that supports a finding of
waiver.” (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179
[120 Cal.Rptr.3d 943], internal citations omitted.)
• “Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
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no disputed facts and only one reasonable inference may be drawn, the issue can
be determined as a matter of law.’ ” (DuBeck v. California Physicians’ Service
(2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• When the injured party with knowledge of the breach continues to accept
performance from the guilty party, such conduct may constitute a waiver of the
breach. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435,
440–441 [6 P.2d 71].)
• There can be no waiver where the one against whom it is asserted has acted
without full knowledge of the facts. It cannot be presumed, in the absence of
such knowledge, that there was an intention to waive an existing right. (Craig v.
White (1921) 187 Cal. 489, 498 [202 P. 648].)
• “[N]otwithstanding a provision in a written contract that expressly precludes oral
modification, the parties may, by their words or conduct, waive the enforcement
of a contract provision if the evidence shows that was their intent.” (Wind
Dancer Production Group, supra, 10 Cal.App.5th at p. 80.)
• “The burden, moreover, is on the party claiming a waiver of a right to prove it
by clear and convincing evidence that does not leave the matter to speculation,
and ‘doubtful cases will be decided against a waiver’.” (City of Ukiah v. Fones
(1966) 64 Cal.2d 104, 107–108 [48 Cal.Rptr. 865, 410 P.2d 369].)
• “The trial court correctly instructed the jury that the waiver of a known right
must be shown by clear and convincing proof.” (DRG/Beverly Hills, Ltd. v.
Chopstix Dim Sum Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35
Cal.Rptr.2d 515].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 881, 882
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57,
140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08, 22.65, 22.68
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337. Affirmative Defense—Novation
[Name of defendant] claims that the original contract with [name of
plaintiff] cannot be enforced because the parties substituted a new and
different contract for the original.
To succeed, [name of defendant] must prove that all parties agreed, by
words or conduct, to cancel the original contract and to substitute a new
contract in its place.
If you decide that [name of defendant] has proved this, then the original
contract is not enforceable.
New September 2003; Revised October 2004
Directions for Use
If the contract in question is not the original contract, specify which contract it is
instead of “original.”
Although there is language in Alexander v. Angel (1951) 37 Cal.2d 856, 860–861
[236 P.2d 561] that could be read to suggest that a novation must be proved by the
higher standard of clear and convincing proof, an examination of the history of that
language and the cases upon which the language in Alexander depends (Columbia
Casualty Co. v. Lewis (1936) 14 Cal.App.2d 64, 72 [57 P.2d 1010] and Houghton v.
Lawton (1923) 63 Cal.App. 218, 223 [218 P. 475]) demonstrates that the original
use of the term “clear and convincing,” carried forward thereafter without analysis,
was intended only to convey the concept that a novation must clearly be shown and
may not be presumed. The history of the language does not support a requirement
that a party alleging a novation must prove there is a high probability (i.e., clear and
convincing proof) that the parties agreed to a novation. See also, sections 279 and
280 of the Restatement Second of Contracts. A party alleging a novation must prove
that the facts supporting the novation are more likely to be true than not true.
Sources and Authority
• Novation. Civil Code sections 1530. 1531.
• “A novation is a substitution, by agreement, of a new obligation for an existing
one, with intent to extinguish the latter. A novation is subject to the general rules
governing contracts and requires an intent to discharge the old contract, a mutual
assent, and a consideration.” (Klepper v. Hoover (1971) 21 Cal.App.3d 460, 463
[98 Cal.Rptr. 482].)
• Conduct may form the basis for a novation although there is no express writing
or agreement. (Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762,
773 [97 P.2d 798].)
• Novation is a question of fact, and the burden of proving it is upon the party
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asserting it. (Alexander v. Angel (1951) 37 Cal.2d 856, 860 [236 P.2d 561].)
• “When there is conflicting evidence the question whether the parties to an
agreement entered into a modification or a novation is a question of fact.”
(Howard v. County of Amador (1990) 220 Cal.App.3d 962, 980 [269 Cal.Rptr.
807].)
• “The ‘question whether a novation has taken place is always one of intention,’
with the controlling factor being the intent of the obligee to effect a release of
the original obligor on his obligation under the original agreement.” (Alexander,
supra, 37 Cal.2d at p. 860, internal citations omitted.)
• “[I]n order for there to be a valid novation, it is necessary that the parties intend
that the rights and obligations of the new contract be substituted for the terms
and conditions of the old contract.” (Wade v. Diamond A Cattle Co. (1975) 44
Cal.App.3d 453, 457 [118 Cal.Rptr. 695].)
• “While the evidence in support of a novation must be ‘clear and convincing,’ the
‘whole question is one of fact and depends upon all the facts and circumstances
of the particular case,’ with the weight and sufficiency of the proof being matters
for the determination of the trier of the facts under the general rules applicable
to civil actions.” (Alexander, supra, 37 Cal.2d at pp. 860–861, internal citations
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 992–994
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.141
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.450–50.464 (Matthew
Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.20,
77.280–77.282 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.58[3]
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338. Affirmative Defense—Statute of Limitations
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [name of plaintiff]’s claimed harm occurred
before [insert date two or four years before date of filing].
New December 2007
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
filed within the applicable four-year period for breach of a written contract (see
Code Civ. Proc., § 337(1)) or two-year period for breach of an oral contract. (See
Code Civ. Proc., § 339(1).) Do not use this instruction for breach of a California
Uniform Commercial Code sales contract. (See Com. Code, § 2725.)
If the contract either shortens or extends the limitation period, use the applicable
period from the contract instead of two years or four years.
If the plaintiff alleges that the delayed-discovery rule applies to avoid the limitation
defense, CACI No. 455, Statute of Limitations—Delayed Discovery, may be adapted
for use.
Sources and Authority
• Four-Year Statute of Limitations: Contract. Code of Civil Procedure section
337(a).
• Two-Year Statute of Limitations: Contract. Code of Civil Procedure section
339(1).
• “In general, California courts have permitted contracting parties to modify the
length of the otherwise applicable California statute of limitations, whether the
contract has extended or shortened the limitations period.” (Hambrecht & Quist
Venture Partners v. Am. Medical Internat. (1995) 38 Cal.App.4th 1532, 1547 [46
Cal.Rptr.2d 33].)
• “A contract cause of action does not accrue until the contract has been
breached.” (Spear v. Cal. State Automobile Assn. (1992) 2 Cal.4th 1035, 1042 [9
Cal.Rptr.2d 381, 831 P.2d 821].)
• “The claim accrues when the plaintiff discovers, or could have discovered
through reasonable diligence, the injury and its cause.” (Angeles Chem. Co. v.
Spencer & Jones (1996) 44 Cal.App.4th 112, 119 [51 Cal.Rptr.2d 594].)
• “[T]he discovery rule may be applied to breaches [of contract] which can be,
and are, committed in secret and, moreover, where the harm flowing from those
breaches will not be reasonably discoverable by plaintiffs until a future time.”
(Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, 4–5 [131
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Cal.Rptr.2d 680].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 508–548
5 Witkin, California Procedure (5th ed. 2008) Pleading, § 1072
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 345
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42[2]
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.120 et seq. (Matthew
Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining
Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.
339–349. Reserved for Future Use
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350. Introduction to Contract Damages
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant] for breach of contract, you
also must decide how much money will reasonably compensate [name of
plaintiff] for the harm caused by the breach. This compensation is called
“damages.” The purpose of such damages is to put [name of plaintiff] in
as good a position as [he/she/nonbinary pronoun/it] would have been if
[name of defendant] had performed as promised.
To recover damages for any harm, [name of plaintiff] must prove that
when the contract was made, both parties knew or could reasonably
have foreseen that the harm was likely to occur in the ordinary course of
events as result of the breach of the contract.
[Name of plaintiff] also must prove the amount of [his/her/nonbinary
pronoun/its] damages according to the following instructions. [He/She/
Nonbinary pronoun/It] does not have to prove the exact amount of
damages. You must not speculate or guess in awarding damages.
[Name of plaintiff] claims damages for [identify general damages claimed].
New September 2003; Revised October 2004, December 2010
Directions for Use
This instruction should always be read before any of the following specific damages
instructions. (See CACI Nos. 351–360.)
Sources and Authority
• Contract Damages. Civil Code section 3300.
• Damages Must Be Clearly Ascertainable. Civil Code section 3301.
• Damages No Greater Than Benefit of Full Performance. Civil Code section
3358.
• Damages Must Be Reasonable. Civil Code section 3359.
• “An element of a breach of contract cause of action is damages proximately
caused by the defendant’s breach. The statutory measure of damages for breach
of contract is ‘the amount which will compensate the party aggrieved for all the
detriment proximately caused thereby, or which, in the ordinary course of things,
would be likely to result therefrom.’ ‘Contract damages seek to approximate the
agreed-upon performance. “[I]n the law of contracts the theory is that the party
injured by breach should receive as nearly as possible the equivalent of the
benefits of performance.” ’ ” (Copenbarger v. Morris Cerullo World Evangelism,
Inc. (2018) 29 Cal.App.5th 1, 9 [239 Cal.Rptr.3d 838], internal citations
omitted.)
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• “This aim can never be exactly attained yet that is the problem the trial court is
required to resolve.” (Brandon & Tibbs v. George Kevorkian Accountancy Corp.
(1990) 226 Cal.App.3d 442, 455 [277 Cal.Rptr. 40], internal citations omitted.)
• “[D]amages may not exceed the benefit which it would have received had the
promisor performed.” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 468,
internal citations omitted.)
• “ ‘The rules of law governing the recovery of damages for breach of contract are
very flexible. Their application in the infinite number of situations that arise is
beyond question variable and uncertain. Even more than in the case of other
rules of law, they must be regarded merely as guides to the court, leaving much
to the individual feeling of the court created by the special circumstances of the
particular case.’ ” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 455, internal
citation omitted.)
• “Contractual damages are of two types—general damages (sometimes called
direct damages) and special damages (sometimes called consequential
damages).” (Lewis Jorge Construction Management, Inc. v. Pomona Unified
School Dist. (2004) 34 Cal.4th 960, 968 [22 Cal.Rptr.3d 340, 102 P.3d 257].)
• “General damages are often characterized as those that flow directly and
necessarily from a breach of contract, or that are a natural result of a breach.
Because general damages are a natural and necessary consequence of a contract
breach, they are often said to be within the contemplation of the parties,
meaning that because their occurrence is sufficiently predictable the parties at the
time of contracting are ‘deemed’ to have contemplated them.” (Lewis Jorge
Construction Management, Inc., supra, 34 Cal.4th at p. 968, internal citations
omitted.)
• “ ‘Contract damages are generally limited to those within the contemplation of
the parties when the contract was entered into or at least reasonably foreseeable
by them at that time; consequential damages beyond the expectation of the
parties are not recoverable. This limitation on available damages serves to
encourage contractual relations and commercial activity by enabling parties to
estimate in advance the financial risks of their enterprise.’ ‘In contrast, tort
damages are awarded to [fully] compensate the victim for [all] injury suffered.’ ”
(Erlich v. Menezes (1999) 21 Cal.4th 543, 550 [87 Cal.Rptr.2d 886, 981 P.2d
978], internal citations omitted.)
• “[I]f special circumstances caused some unusual injury, special damages are not
recoverable therefor unless the circumstances were known or should have been
known to the breaching party at the time he entered into the contract.’ ” (Resort
Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1697 [42
Cal.Rptr.2d 136], internal citations omitted.)
• “The detriment that is ‘likely to result therefrom’ is that which is foreseeable to
the breaching party at the time the contract is entered into.” (Wallis v. Farmers
Group, Inc. (1990) 220 Cal.App.3d 718, 737 [269 Cal.Rptr. 299], internal
citation omitted.)
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• “Where the fact of damages is certain, as here, the amount of damages need not
be calculated with absolute certainty. The law requires only that some reasonable
basis of computation be used, and the result reached can be a reasonable
approximation.” (Acree v. General Motors Acceptance Corp. (2001) 92
Cal.App.4th 385, 398 [112 Cal.Rptr.2d 99], footnotes and internal citations
omitted.)
• “Under contract principles, the nonbreaching party is entitled to recover only
those damages, including lost future profits, which are ‘proximately caused’ by
the specific breach. Or, to put it another way, the breaching party is only liable
to place the nonbreaching party in the same position as if the specific breach had
not occurred. Or, to phrase it still a third way, the breaching party is only
responsible to give the nonbreaching party the benefit of the bargain to the
extent the specific breach deprived that party of its bargain.” (Postal Instant
Press v. Sealy (1996) 43 Cal.App.4th 1704, 1709 [51 Cal.Rptr.2d 365], internal
citations omitted.)
• “[D]amages for mental suffering and emotional distress are generally not
recoverable in an action for breach of an ordinary commercial contract in
California.” (Erlich, supra, 21 Cal.4th 543 at p. 558, internal citations omitted.)
• “Cases permitting recovery for emotional distress typically involve mental
anguish stemming from more personal undertakings the traumatic results of
which were unavoidable. Thus, when the express object of the contract is the
mental and emotional well-being of one of the contracting parties, the breach of
the contract may give rise to damages for mental suffering or emotional
distress.” (Erlich, supra, 21 Cal.4th at p. 559, internal citations omitted.)
• “The right to recover damages for emotional distress for breach of mortuary and
crematorium contracts has been well established in California for many years.”
(Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 803 [7 Cal.Rptr.2d 82],
internal citation omitted.)
• “[T]he principle that attorney fees qua damages are recoverable as damages, and
not as costs of suit, applies equally to breach of contract.” (Copenbarger, supra,
29 Cal.App.5th at p. 10, original italics.)
• “Numerous other cases decided both before and after Brandt have likewise
recognized that ‘[a]lthough fee issues are usually addressed to the trial court in
the form of a posttrial motion, fees as damages are pleaded and proved by the
party claiming them and are decided by the jury unless the parties stipulate to a
posttrial procedure.’ ” (Monster, LLC v. Superior Court (2017) 12 Cal.App.5th
1214, 1229 [219 Cal.Rptr.3d 814].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 894–903
California Breach of Contract Remedies (Cont.Ed.Bar 1980; 2001 supp.) Recovery
of Money Damages, §§ 4.1–4.9
13 California Forms of Pleading and Practice, Ch. 140, Contracts,
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§§ 140.55–140.56, 140.100–140.106 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.70 et seq.
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.10–50.11 (Matthew
Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.20 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.03 et seq.
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351. Special Damages
[Name of plaintiff] [also] claims damages for [identify special damages].
To recover for this harm, [name of plaintiff] must prove that when the
parties made the contract, [name of defendant] knew or reasonably should
have known of the special circumstances leading to the harm.
New September 2003
Directions for Use
Before giving this instruction, the judge should determine whether a particular item
of damage qualifies as “special.”
Sources and Authority
• Measure of Contract Damages. Civil Code section 3300.
• “ ‘Unlike general damages, special damages are those losses that do not arise
directly and inevitably from any similar breach of any similar agreement.
Instead, they are secondary or derivative losses arising from circumstances that
are particular to the contract or to the parties. Special damages are recoverable if
the special or particular circumstances from which they arise were actually
communicated to or known by the breaching party (a subjective test) or were
matters of which the breaching party should have been aware at the time of
contracting (an objective test). [Citations.] Special damages “will not be
presumed from the mere breach” but represent loss that ‘occurred by reason of
injuries following from’ the breach.’ ” (Schellinger Brothers v. Cotter (2016) 2
Cal.App.5th 984, 1010 [207 Cal.Rptr.3d 82].)
• “Special damages must fall within the rule of Hadley v. Baxendale, . . . that is,
they must reasonably be supposed to have been contemplated or foreseeable by
the parties when making the contract as the probable result of a breach.”
(Sabraw v. Kaplan (1962) 211 Cal.App.2d 224, 227 [27 Cal.Rptr. 81], internal
citations omitted.)
• “Parties may voluntarily assume the risk of liability for unusual losses, but to do
so they must be told, at the time the contract is made, of any special harm likely
to result from a breach [citations]. Alternatively, the nature of the contract or the
circumstances in which it is made may compel the inference that the defendant
should have contemplated the fact that such a loss would be ‘the probable result’
of the defendant’s breach. [Citation.] Not recoverable as special damages are
those ‘beyond the expectations of the parties.’ [Citation.] Special damages for
breach of contract are limited to losses that were either actually foreseen
[citation] or were ‘reasonably foreseeable’ when the contract was formed.” (Ash
v. North American Title Co. (2014) 223 Cal.App.4th 1258, 1269–1270 [168
Cal.Rptr.3d 499].)
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• “When reference is made to the terms of the contract alone, there is ordinarily
little difficulty in determining what damages arise from its breach in the usual
course of things, and the parties will be presumed to have contemplated such
damages only. But where it is claimed the circumstances show that a special
purpose was intended to be accomplished by one of the parties (a failure to
accomplish which by means of the contract would cause him greater damage
than would ordinarily follow from a breach by the other party), and such
purpose was known to the other party, the facts showing the special purpose and
the knowledge of the other party must be averred. This rule has frequently been
applied to the breach of a contract for the sale of goods to be delivered at a
certain time. In such cases the general rule of damages is fixed by reference to
the market value of the goods at the time they were to have been delivered,
because in the usual course of events the purchaser could have supplied himself
with like commodities at the market price. And if special circumstances existed
entitling the purchaser to greater damages for the defeat of a special purpose
known to the contracting parties (as, for example, if the purchaser had already
contracted to furnish the goods at a profit, and they could not be obtained in the
market), such circumstances must be stated in the declaration with the facts
which, under the circumstances, enhanced the injury.” (Mitchell v. Clarke (1886)
71 Cal. 163, 164–165 [11 P. 882], internal citation omitted.)
• “[I]f special circumstances caused some unusual injury, special damages are not
recoverable therefor unless the circumstances were known or should have been
known to the breaching party at the time he entered into the contract. The
requirement of knowledge or notice as a prerequisite to the recovery of special
damages is based on the theory that a party does not and cannot assume limitless
responsibility for all consequences of a breach, and that at the time of
contracting he must be advised of the facts concerning special harm which might
result therefrom, in order that he may determine whether or not to accept the
risk of contracting.” (Brandon & Tibbs v. George Kevorkian Accountancy Corp.
(1990) 226 Cal.App.3d 442, 455 [277 Cal.Rptr. 40], internal citations omitted.)
• “Contract damages must be clearly ascertainable in both nature and origin. A
contracting party cannot be required to assume limitless responsibility for all
consequences of a breach and must be advised of any special harm that might
result in order to determine whether or not to accept the risk of contracting.”
(Erlich v. Menezes (1999) 21 Cal.4th 543, 560 [87 Cal.Rptr.2d 886, 981 P.2d
978], internal citations omitted.)
• “ ‘[F]oreseeability is to be determined as of the time of the making of the
contract’; ‘what must be foreseeable is only that the loss would result if the
breach occurred’; ‘it is foreseeability only by the party in breach that is
determinative’; ‘foreseeability has an objective character’; and ‘the loss need
only have been foreseeable as a probable, as opposed to a necessary or certain,
result of the breach.’ ” (Ash, supra, 223 Cal.App.4th at p. 1270.)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 896
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.13
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.61 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[6], 7.08[3]
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352. Loss of Profits—No Profits Earned
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/nonbinary pronoun/it] would have earned
profits but for [name of defendant]’s breach of the contract.
To decide the amount of damages for lost profits, you must determine
the gross, or total, amount [name of plaintiff] would have received if the
contract had been performed and then subtract from that amount the
costs [including the value of the [labor/materials/rents/expenses/interest
on loans invested in the business]] [name of plaintiff] would have had if
the contract had been performed.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
New September 2003
Directions for Use
This instruction applies to both past and future lost profit claims. Read this
instruction in conjunction with CACI No. 350, Introduction to Contract Damages,
or CACI No. 351, Special Damages.
Insertion of specified types of costs to be deducted from gross earnings is optional,
depending on the facts of the case. Other types of costs may be inserted as
appropriate.
Sources and Authority
• Damages Must Be Clearly Ascertainable. Civil Code section 3301.
• “Lost profits may be recoverable as damages for breach of a contract. ‘[T]he
general principle [is] that damages for the loss of prospective profits are
recoverable where the evidence makes reasonably certain their occurrence and
extent.’ Such damages must ‘be proven to be certain both as to their occurrence
and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773−774 [149
Cal.Rptr.3d 614, 288 P.3d 1237].)
• “Where the fact of damages is certain, the amount of damages need not be
calculated with absolute certainty. The law requires only that some reasonable
basis of computation of damages be used, and the damages may be computed
even if the result reached is an approximation. This is especially true where, as
here, it is the wrongful acts of the defendant that have created the difficulty in
proving the amount of loss of profits or where it is the wrongful acts of the
defendant that have caused the other party to not realize a profit to which that
party is entitled.” (GHK Associates v. Mayer Group (1990) 224 Cal.App.3d 856,
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873–874 [274 Cal.Rptr. 168], internal citations omitted.)
• “Historical data, such as past business volume, supply an acceptable basis for
ascertaining lost future profits. [Citations.] In some instances, lost profits may be
recovered where plaintiff introduces evidence of the profits lost by similar
businesses operating under similar conditions. [Citations.]” (Sargon Enterprises,
Inc., supra, 55 Cal.4th at p. 774.)
• “Regarding lost business profits, the cases have generally distinguished between
established and unestablished businesses. ‘[W]here the operation of an
established business is prevented or interrupted, as by a . . . breach of
contract . . . , damages for the loss of prospective profits that otherwise might
have been made from its operation are generally recoverable for the reason that
their occurrence and extent may be ascertained with reasonable certainty from
the past volume of business and other provable data relevant to the probable
future sales.’ ” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “ ‘On the other hand, where the operation of an unestablished business is
prevented or interrupted, damages for prospective profits that might otherwise
have been made from its operation are not recoverable for the reason that their
occurrence is uncertain, contingent and speculative. [Citations.] . . . But
although generally objectionable for the reason that their estimation is
conjectural and speculative, anticipated profits dependent upon future events are
allowed where their nature and occurrence can be shown by evidence of
reasonable reliability.” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “Unestablished businesses have been permitted to claim lost profit damages in
situations where owners have experience in the business they are seeking to
establish, and where the business is in an established market.” (Resort Video,
Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1698–1699 [42 Cal.Rptr.2d
136], internal citations omitted.)
• “Even if [plaintiff] was able to provide credible evidence of lost profits, it must
be remembered that ‘[w]hen loss of anticipated profits is an element of damages,
it means net and not gross profits. Net profits are the gains made from sales
‘after deducting the value of the labor, materials, rents, and all expenses,
together with the interest of the capital employed.’ ” (Resort Video, Ltd., supra,
35 Cal.App.4th at p. 1700, internal citations omitted.)
• “It is the generally accepted rule, in order to recover damages projected into the
future, that a plaintiff must show with reasonable certainty that detriment from
the breach of contract will accrue to him in the future. Damages which are
remote, contingent, or merely possible cannot serve as a legal basis for
recovery.” (California Shoppers, Inc. v. Royal Globe Insurance Co. (1985) 175
Cal.App.3d 1, 62 [221 Cal.Rptr. 171], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 904–907
California Breach of Contract Remedies (Cont.Ed.Bar 1980; 2001 supp.) Recovery
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of Money Damages, §§ 4.11–4.17
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.79
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages, § 65.21 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.12
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353. Loss of Profits—Some Profits Earned
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/nonbinary pronoun/it] would have earned
more profits but for [name of defendant]’s breach of the contract.
To decide the amount of damages for lost profits, you must:
1. First, calculate [name of plaintiff]’s estimated total profit by
determining the gross amount [he/she/nonbinary pronoun/it] would
have received if the contract had been performed, and then
subtracting from that amount the costs [including the value of the
[labor/materials/rents/expenses/interest on loans invested in the
business]] [name of plaintiff] would have had if the contract had
been performed;
2. Next, calculate [name of plaintiff]’s actual profit by determining
the gross amount [he/she/nonbinary pronoun/it] actually received,
and then subtracting from that amount [name of plaintiff]’s actual
costs [including the value of the [labor/materials/rents/expenses/
interest on loans invested in the business]]; and
3. Then, subtract [name of plaintiff]’s actual profit, which you
determined in the second step, from [his/her/nonbinary pronoun/
its] estimated total profit, which you determined in the first step.
The resulting amount is [name of plaintiff]’s lost profit.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
New September 2003
Directions for Use
Read this instruction in conjunction with CACI No. 350, Introduction to Contract
Damages, or CACI No. 351, Special Damages.
Insertion of specified types of costs to be deducted from gross earnings is optional,
depending on the facts of the case. Other types of costs may be inserted as
appropriate.
Sources and Authority
• Damages Must Be Clearly Ascertainable. Civil Code section 3301.
• “Lost profits may be recoverable as damages for breach of a contract. ‘[T]he
general principle [is] that damages for the loss of prospective profits are
recoverable where the evidence makes reasonably certain their occurrence and
extent.’ Such damages must ‘be proven to be certain both as to their occurrence
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and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773−774 [149
Cal.Rptr.3d 614, 288 P.3d 1237].)
• “Where the fact of damages is certain, the amount of damages need not be
calculated with absolute certainty. The law requires only that some reasonable
basis of computation of damages be used, and the damages may be computed
even if the result reached is an approximation. This is especially true where, as
here, it is the wrongful acts of the defendant that have created the difficulty in
proving the amount of loss of profits or where it is the wrongful acts of the
defendant that have caused the other party to not realize a profit to which that
party is entitled.” (GHK Associates v. Mayer Group (1990) 224 Cal.App.3d 856,
873–874 [274 Cal.Rptr. 168], internal citations omitted.)
• “Historical data, such as past business volume, supply an acceptable basis for
ascertaining lost future profits. [Citations.] In some instances, lost profits may be
recovered where plaintiff introduces evidence of the profits lost by similar
businesses operating under similar conditions. [Citations.]” (Sargon Enterprises,
Inc., supra, 55 Cal.4th at p. 774].)
• “Regarding lost business profits, the cases have generally distinguished between
established and unestablished businesses. ‘[W]here the operation of an
established business is prevented or interrupted, as by a . . . breach of
contract . . . , damages for the loss of prospective profits that otherwise might
have been made from its operation are generally recoverable for the reason that
their occurrence and extent may be ascertained with reasonable certainty from
the past volume of business and other provable data relevant to the probable
future sales.’ ” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “ ‘On the other hand, where the operation of an unestablished business is
prevented or interrupted, damages for prospective profits that might otherwise
have been made from its operation are not recoverable for the reason that their
occurrence is uncertain, contingent and speculative. [Citations.] . . . But
although generally objectionable for the reason that their estimation is
conjectural and speculative, anticipated profits dependent upon future events are
allowed where their nature and occurrence can be shown by evidence of
reasonable reliability.” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “Unestablished businesses have been permitted to claim lost profit damages in
situations where owners have experience in the business they are seeking to
establish, and where the business is in an established market.” (Resort Video,
Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1698–1699 [42 Cal.Rptr.2d
136], internal citations omitted.)
• “Even if [plaintiff] was able to provide credible evidence of lost profits, it must
be remembered that ‘[w]hen loss of anticipated profits is an element of damages,
it means net and not gross profits.’ Net profits are the gains made from sales
‘after deducting the value of the labor, materials, rents, and all expenses,
together with the interest of the capital employed.’ ” (Resort Video, Ltd., supra,
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35 Cal.App.4th at p. 1700, internal citations omitted.)
• “It is the generally accepted rule, in order to recover damages projected into the
future, that a plaintiff must show with reasonable certainty that detriment from
the breach of contract will accrue to him in the future. Damages which are
remote, contingent, or merely possible cannot serve as a legal basis for
recovery.” (California Shoppers, Inc. v. Royal Globe Insurance Co. (1985) 175
Cal.App.3d 1, 62 [221 Cal.Rptr. 171], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 904–907
California Breach of Contract Remedies (Cont.Ed.Bar 1980; 2001 supp.) Recovery
of Money Damages, §§ 4.11–4.17
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.79
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.12
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354. Owner’s/Lessee’s Damages for Breach of Contract to
Construct Improvements on Real Property
To recover damages for breach of a contract to construct improvements
on real property, [name of plaintiff] must prove:
[[The reasonable cost to [name of plaintiff] of completing the work;]
[And the value of loss of use of the property;]
[And the reasonable cost of alternative housing from the date the
work was to have been completed until the date the work was
completed;]
[Less any amounts unpaid under the contract with [name of
defendant];]]
[or]
[The difference between the fair market value of the [lessee’s
interest in the] property and its fair market value had the
improvements been constructed.]
New September 2003
Directions for Use
Read this instruction in conjunction with CACI No. 350, Introduction to Contract
Damages. The bracketed options state alternative measures of damage. Choose the
option appropriate to the facts of the case. For a definition of “fair market value,”
see CACI No. 3501, “Fair Market Value” Explained.
Sources and Authority
• “The proper measure of damages for breach of a contract to construct
improvements on real property where the work is to be done on plaintiff’s
property is ordinarily the reasonable cost to the plaintiff of completing the work
and not the difference between the value of the property and its value had the
improvements been constructed. A different rule applies, however, where
improvements are to be made on property not owned by the injured party. ‘In
that event the injured party is unable to complete the work himself and, subject
to the restrictions of sections 3300 and 3359 of the Civil Code, the proper
measure of damages is the difference in value of the property with and without
the promised performance, since that is the contractual benefit of which the
injured party is deprived.’ ” (Glendale Fed. Sav. & Loan Assn. v. Marina View
Heights Dev. Co., (1977) 66 Cal.App.3d 101, 123–124 [135 Cal.Rptr. 802],
internal citations omitted.)
• “If the work were to be done on plaintiffs’ property the proper measure of
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damages would ordinarily be the reasonable cost to plaintiffs of completing the
work. A different rule applies, however, when the improvements are to be made
on property that is not owned by the injured party.” (Coughlin v. Blair (1953) 41
Cal.2d 587, 600 [262 P.2d 305], internal citations omitted.)
• “It is settled . . . that the measure of damages for the breach of a building
construction contract is ordinarily such sum as is required to make the building
conform to the contract. In such situations, the diminution of value rule cannot
be invoked and the measure of damages is not the difference between the actual
value of the property and its value had it been constructed in accordance with
the plans and specifications.” (Kitchel v. Acree (1963) 216 Cal.App.2d 119, 123
[30 Cal.Rptr. 714], internal citations omitted.)
• “The available damages for defective construction are limited to the cost of
repairing the home, including lost use or relocation expenses, or the diminution
in value.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 561 [87 Cal.Rptr.2d 886,
981 P.2d 978], internal citations omitted.)
• “Where the measure of damages turns on the value of property, whether liability
sounds in tort or breach of contract, the normal standard is market value. The
definition of market value and the principles governing its ascertainment are the
same as those applicable to the valuation of property in eminent domain
proceedings and in ad valorem taxation of property. In Sacramento etc. R. R. Co.
v. Heilbron, market value was defined as ‘the highest price estimated in terms of
money which the land would bring if exposed for sale in the open market, with
reasonable time allowed in which to find a purchaser, buying with knowledge of
all of the uses and purposes to which it was adapted and for which it was
capable.’ That classic exposition with subsequent refinements has always been
the accepted definition of market value in California.” (Glendale Federal Savings
& Loan Assn., supra, 66 Cal.App.3d at pp. 141–142, internal citations and
footnote omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 937–939
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.10
et seq. (Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.100 (Matthew
Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts And Subcontracts,
§ 30D.223 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 10, Seeking or
Opposing Statutory Remedies in Contract Actions, 10.05
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355. Obligation to Pay Money Only
To recover damages for the breach of a contract to pay money, [name of
plaintiff] must prove the amount due under the contract.
New September 2003
Directions for Use
Read this instruction in conjunction with CACI No. 350, Introduction to Contract
Damages. If there is a dispute as to the appropriate rate of interest, the jury should
be instructed to determine the rate. Otherwise, the judge should calculate the interest
and add the appropriate amount of interest to the verdict.
Sources and Authority
• Damages for Breach of Obligation to Pay Money. Civil Code section 3302.
• Interest on Contract Damages. Civil Code section 3289.
• “The section is part of the original Civil Code and was intended to codify a
common-law rule of damages for breach of a contract to pay a liquidated sum.
In Siminoff v. Jas. H. Goodman & Co. Bank, the court after careful and
extensive analysis concluded that section 3302 was not intended to abolish the
common-law measure of damages for dishonor of a check. Hartford, in reaching
the opposite conclusion, failed even to note the common-law rule or the
California cases which had followed it, and did not discuss the strong arguments
in its favor advanced in the Siminoff opinion. The Hartford holding on section
3302 no longer applies to the instant problem since section 3320 clearly
constitutes ‘a legislative recognition that a depositor whose check is wrongfully
dishonored may thereby sustain “actual damage” beyond the amount of the
check’ and thus supersedes the Hartford holding on the measure of damages.”
(Weaver v. Bank of America National Trust & Savings Assn. (1963) 59 Cal.2d
428, 436, fn. 11 [30 Cal.Rptr. 4, 380 P.2d 644], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 936
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[7][a]
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356. Buyer’s Damages for Breach of Contract for Sale of Real
Property (Civ. Code, § 3306)
To recover damages for the breach of a contract to sell real property,
[name of plaintiff] must prove:
1. The difference between the fair market value of the property on
the date of the breach and the contract price;
2. The amount of any payment made by [name of plaintiff] toward
the purchase;
3. The amount of any reasonable expenses for examining title and
preparing documents for the sale;
4. The amount of any reasonable expenses in preparing to occupy
the property; and
5. [Insert item(s) of claimed consequential damages].
New September 2003
Directions for Use
Read this instruction in conjunction with CACI No. 350, Introduction to Contract
Damages. If the appropriate rate of interest is in dispute, the jury should be
instructed to determine the rate. Otherwise, the judge should calculate the interest
and add the appropriate amount of interest to the verdict.
For a definition of “fair market value,” see CACI No. 3501, “Fair Market Value”
Explained.
Sources and Authority
• Damages for Breach of Contract to Convey Real Property. Civil Code section
3306.
• Interest on Contract Damages. Civil Code section 3289.
• “ ‘The rules of damages for a breach of a contract to sell or buy real property
are special and unique. To the extent that the measure of compensatory damages
available to a buyer or seller of real property for a breach of a contract are
different from the general measure of compensatory damages for a breach of
contract, the special provisions for damages for a breach of a real property sales
contract prevail.’ ” (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739,
751 [118 Cal.Rptr.3d 531].)
• “A simple reading of the statute discloses that by its explicit terms it is adaptable
only to a failure to convey, and not to a delay in conveying.” (Christensen v.
Slawter (1959) 173 Cal.App.2d 325, 330 [343 P.2d 341].)
• “This court itself has recently described section 3306 as providing for ‘loss-of-
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bargain damages’ measured by the difference between the contract price and the
fair market value on the date of the breach.” (Reese v. Wong (2001) 93
Cal.App.4th 51, 56 [112 Cal.Rptr.2d 669], internal citation omitted.)
• “It is settled that when a seller of real property fails or refuses to convey, a
buyer who has made advance payments toward the purchase price may recover
interest on those payments as damages for breach of contract. This rule is not
limited to sales of real property; it applies to sales in general.” (Al-Husry v.
Nilsen Farms Mini-Market, Inc. (1994) 25 Cal.App.4th 641, 648 [31 Cal.Rptr.2d
28], internal citations omitted.)
• Section 3306 does not ordinarily apply to breach of an unexercised option to buy
property. (Schmidt v. Beckelman (1960) 187 Cal.App.2d 462, 470–471 [9
Cal.Rptr. 736].)
• “ ‘Generally, [consequential] damages are those which, in view of all facts
known by the parties at the time of the making of the contract, may reasonably
be supposed to have been considered as a likely consequence of a breach in the
ordinary course of events. This provision would conform the measure of
damages in real property conveyance breaches to the general contract measure of
damages which is specified in Civil Code 3300: “. . . all the detriment
proximately caused (by the breach), or which, in the ordinary course of things,
would be likely to result therefrom.” ’ ” (Stevens Group Fund IV v. Sobrato
Development Co. (1991) 1 Cal.App.4th 886, 892 [2 Cal.Rptr.2d 460], quoting the
Assembly Committee on Judiciary.)
• “Moreover, in none of the foregoing cases does it appear that the buyer
demonstrated the existence of the other requisites for an award of consequential
or special damages, i.e., that the seller knew of the buyer’s purpose in
purchasing the property and that the anticipated profits were proved with
reasonable certainty as to their occurrence and amount.” (Greenwich S.F., LLC,
supra, 190 Cal.App.4th at p. 757.)
• “The plain language of section 3306, adding consequential damages to the
general damages and other specified damages recoverable for breach of a
contract to convey real property, the legislative history of the 1983 amendment
acknowledging that the addition of consequential damages would conform the
measure of damages to the general contract measure of damages, and the
generally accepted inclusion of lost profits as a component of consequential or
special damages in other breach of contract contexts and by other states in the
context of breach of contracts to convey real property, taken together, persuade
us that lost profits may be awarded as part of consequential damages under
section 3306 upon a proper showing.” (Greenwich S.F., LLC, supra, 190
Cal.App.4th at p. 758, internal citations omitted.)
• “Rents received from the lease of the property in this case are not properly an
item of consequential damages. Here, plaintiff introduced evidence as to the fair
market value of the property which included these profits. To allow these as
consequential damages under these circumstances would have permitted a double
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recovery for plaintiff.” (Stevens Group Fund IV, supra, 1 Cal.App.4th at p. 892.)
• “[T]he phrase ‘to enter upon the land’ refers to the taking of possession rather
than the use of the property.” (Schellinger Brothers v. Cotter (2016) 2
Cal.App.5th 984, 1011 [207 Cal.Rptr.3d 82].)
• “We think the phrase ‘and interest’ should continue to be read as referring to the
generally applicable provisions of [Civil Code] section 3287 regarding
prejudgment interest. As amended in 1967, subdivision (a) of section 3287
establishes a right to recover prejudgment interest on damages ‘capable of being
made certain by calculation’ and subdivision (b) gives the court general
discretionary authority to award prejudgment interest where damages are ‘based
upon a cause of action in contract . . ..’ The discretionary authority conferred by
subdivision (b) will ordinarily apply to loss-of-bargain damages measured by the
contract price/market value differential.” (Rifkin v. Achermann (1996) 43
Cal.App.4th 391, 397 [50 Cal.Rptr.2d 661].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 926–928
California Real Property Remedies Practice (Cont.Ed.Bar 1980; 1999 supp.) Breach
of Seller-Buyer Agreements, §§ 4.11–4.14
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
11-D, Buyer’s Remedies Upon Seller’s Breach—Damages And Specific Performance,
¶ 11:184 (The Rutter Group)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser,
§ 569.22 (Matthew Bender)
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[7][f]
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
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357. Seller’s Damages for Breach of Contract to Purchase Real
Property
To recover damages for the breach of a contract to buy real property,
[name of plaintiff] must prove:
1. The difference between the amount that was due to [name of
plaintiff] under the contract and the fair market value of the
property at the time of the breach; [and]
2. [Insert item(s) of claimed consequential damages, e.g., resale
expenses].
New September 2003
Directions for Use
Read this instruction in conjunction with CACI No. 350, Introduction to Contract
Damages. If there is a dispute regarding the appropriate rate of interest, the jury
should be instructed to determine the rate. Otherwise, the judge should calculate the
interest and add the appropriate amount of interest to the verdict.
For a definition of “fair market value,” see CACI No. 3501, “Fair Market Value”
Explained.
Sources and Authority
• Damages for Breach of Contract to Purchase Real Property. Civil Code section
3307.
• “It is generally accepted that the equivalent of value to the seller is fair market
value. Fair market value is reckoned ‘in terms of money.’ ” (Abrams v. Motter
(1970) 3 Cal.App.3d 828, 840–841 [83 Cal.Rptr. 855], internal citations omitted.)
• “The “value of the property” to [plaintiff] is to be determined as of the date of
the breach of the agreement by [defendant].” (Allen v. Enomoto (1964) 228
Cal.App.2d 798, 803 [39 Cal.Rptr. 815], internal citation omitted.)
• There can be no damages where the value to the owner equals or exceeds the
contract price. (Newhart v. Pierce (1967) 254 Cal.App.2d 783, 792 [62 Cal.Rptr.
553], internal citation omitted.)
• “[T]he view that this section is exclusive, and precludes other consequential
damages occasioned by the breach, was rejected in Royer v. Carter. Under Civil
Code, section 3300, other damages are recoverable, usually embracing the out-
of-pocket expenses lost by failure of the transaction.” (Wade v. Lake County Title
Co. (1970) 6 Cal.App.3d 824, 830 [86 Cal.Rptr. 182], internal citation omitted.)
• “[C]ourts have permitted consequential damages, only where the seller has
diligently attempted resale after the buyer has breached the contract.” (Askari v.
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R & R Land Co. (1986) 179 Cal.App.3d 1101, 1107 [225 Cal.Rptr. 285], internal
citation omitted.)
• “[I]f the property increases in value before trial and the vendor resells the
property at a price higher than the value of the contract, there are no longer any
loss of bargain damages.” (Spurgeon v. Drumheller (1985) 174 Cal.App.3d 659,
664 [220 Cal.Rptr. 195].)
• “The same rule of no loss of bargain damages to the vendor applies where the
resale is for the same price as the contract price.” (Spurgeon, supra, 174
Cal.App.3d at p. 664, internal citations omitted.)
• “For the reason that no loss of bargain damages are available to a seller if there
is a resale at the same or a higher price than the contract price, the law imposes
on the seller of the property the duty to exercise diligence and to make a resale
within the shortest time possible. In discussing the duty to mitigate where the
vendee seeks return of a deposit, the Sutter court states the requirement that
resales be made with reasonable diligence ‘states a policy applicable to resales
of real property. Whether the resale is made one, two or three months later, or
whether it be a year or more, it should be made with reasonable diligence to
qualify the vendor to an allowance of an off-set against the vendee’s claim for
restitution of money paid.’ ” (Spurgeon, supra, 174 Cal.App.3d at p. 665,
internal citations omitted.)
• “Although it is well settled in the foregoing authorities that damages under Civil
Code section 3307 for the difference between the contract price and property
value may be insufficient to give the vendor the benefit of his bargain and he is
entitled also to resale expenses and some costs of continued ownership, he
should not be permitted to receive a windfall at the purchaser’s expense.” (Smith
v. Mady (1983) 146 Cal.App.3d 129, 133 [194 Cal.Rptr. 42].)
• “Inasmuch as under Abrams and Sutter the vendor has an obligation to resell
promptly in order to obtain consequential damages and the resale price may fix
the property value as a basis for Civil Code section 3307 damages, we are
impelled to conclude that there is no inherent separateness in the original sale
and subsequent resale transactions. The increased resale price should not be
disregarded in considering an offset to consequential damages awarded to a
vendor against a defaulting purchaser of real property.” (Smith, supra, 146
Cal.App.3d at p. 133.)
• “The owner of real or personal property may competently testify to its value.”
(Newhart, supra, 254 Cal.App.2d at p. 789, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 929–934
California Real Property Remedies Practice (Cont.Ed.Bar 1980; 1999 supp.), Breach
of Seller-Buyer Agreements, §§ 4.37–4.43
California Practice Guide: Real Property Transactions, Ch. 11-C, ¶¶ 11:101–11:110,
Seller’s Remedies Upon Buyer’s Breach-Damages and Specific Performance (The
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Rutter Group)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser,
§ 569.22 (Matthew Bender)
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[7][f]
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
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358. Mitigation of Damages
If [name of defendant] breached the contract and the breach caused
harm, [name of plaintiff] is not entitled to recover damages for harm that
[name of defendant] proves [name of plaintiff] could have avoided with
reasonable efforts or expenditures. You should consider the
reasonableness of [name of plaintiff]’s efforts in light of the circumstances
facing [him/her/nonbinary pronoun/it] at the time, including
[his/her/nonbinary pronoun/its] ability to make the efforts or expenditures
without undue risk or hardship.
If [name of plaintiff] made reasonable efforts to avoid harm, then your
award should include reasonable amounts that [he/she/nonbinary pronoun/
it] spent for this purpose.
New September 2003
Sources and Authority
• “ ‘ “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers
damage as a result of . . . a breach of contract . . . has a duty to take
reasonable steps to mitigate those damages and will not be able to recover for
any losses which could have been thus avoided.” ’ Under the doctrine, ‘[a]
plaintiff may not recover for damages avoidable through ordinary care and
reasonable exertion.’ However, ‘[t]he duty to mitigate damages does not require
an injured party to do what is unreasonable or impracticable.’ ” (Agam v. Gavra
(2015) 236 Cal.App.4th 91, 111 [186 Cal.Rptr.3d 295], internal citations
omitted.)
• ‘The rule of mitigation of damages has no application where its effect would be
to require the innocent party to sacrifice and surrender important and valuable
rights.” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32
Cal.Rptr.2d 329].)
• “Whether a plaintiff acted reasonably to mitigate damages . . . is a factual
matter to be determined by the trier of fact . . . .” (Agam, supra, 236
Cal.App.4th at p. 111.)
• “A plaintiff who suffers damage as a result of either a breach of contract or a
tort has a duty to take reasonable steps to mitigate those damages and will not
be able to recover for any losses which could have been thus avoided.” (Shaffer
v. Debbas (1993) 17 Cal.App.4th 33, 41 [21 Cal.Rptr.2d 110], internal citation
omitted.)
• “A party injured by a breach of contract is required to do everything reasonably
possible to negate his own loss and thus reduce the damages for which the other
party has become liable. The plaintiff cannot recover for harm he could have
foreseen and avoided by such reasonable efforts and without undue expense.
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However, the injured party is not precluded from recovery to the extent that he
has made reasonable but unsuccessful efforts to avoid loss.” (Brandon & Tibbs v.
George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460 [277
Cal.Rptr. 40], internal citations omitted.)
• “The burden of proving that losses could have been avoided by reasonable effort
and expense must always be borne by the party who has broken the contract.
Inasmuch as the law denies recovery for losses that can be avoided by
reasonable effort and expense, justice requires that the risks incident to such
effort should be carried by the party whose wrongful conduct makes them
necessary. Therefore, special losses that a party incurs in a reasonable effort to
avoid losses resulting from a breach are recoverable as damages.” (Brandon &
Tibbs, supra, 226 Cal.App.3d at pp. 460–461, internal citations omitted.)
Secondary Sources
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.56
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.77
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, §§ 65.103, 65.121
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.12[6][b], 7.15[4]
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359. Present Cash Value of Future Damages
To recover for future harm, [name of plaintiff] must prove that the harm
is reasonably certain to occur and must prove the amount of those future
damages. The amount of damages for future harm must be reduced to
present cash value. This is necessary because money received now will,
through investment, grow to a larger amount in the future. [Name of
defendant] must prove the amount by which future damages should be
reduced to present value.
To find present cash value, you must determine the amount of money
that, if reasonably invested today, will provide [name of plaintiff] with the
amount of [his/her/nonbinary pronoun/its] future damages.
[You may consider expert testimony in determining the present cash
value of future damages.] [You must use [the interest rate of
percent/ [and] [specify other stipulated information]] agreed to by the
parties in determining the present cash value of future damages.]
New September 2003; Revised December 2010, June 2013
Directions for Use
Give this instruction if future damages are sought and there is evidence from which
a reduction to present value can be made. Give the next-to-last sentence if there has
been expert testimony on reduction to present value. Unless there is a stipulation,
expert testimony will usually be required to accurately establish present values for
future losses. Give the last sentence if there has been a stipulation as to the interest
rate to use or any other facts related to present cash value.
It would appear that because reduction to present value benefits the defendant, the
defendant bears the burden of proof on the discount rate. (See Wilson v. Gilbert
(1972) 25 Cal.App.3d 607, 613–614 [102 Cal.Rptr. 31] [no error to refuse
instruction on reduction to present value when defendant presented no evidence].)
Present-value tables may assist the jury in making its determination of present cash
value. Tables, worksheets, and an instruction on how to use them are provided in
CACI No. 3904B, Use of Present-Value Tables.
Sources and Authority
• Future Damages. Civil Code section 3283.
• “In an action for damages for such a breach, the plaintiff in that one action
recovers all his damages, past and prospective. A judgment for the plaintiff in
such an action absolves the defendant from any duty, continuing or otherwise, to
perform the contract. The judgment for damages is substituted for the
wrongdoer’s duty to perform the contract.” (Coughlin v. Blair (1953) 41 Cal.2d
587, 598 [262 P.2d 305], internal citations omitted.)
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• “If the breach is partial only, the injured party may recover damages for non-
performance only to the time of trial and may not recover damages for
anticipated future non-performance. Furthermore, even if a breach is total, the
injured party may treat it as partial, unless the wrongdoer has repudiated the
contract. The circumstances of each case determine whether an injured party
may treat a breach of contract as total.” (Coughlin, supra, 41 Cal.2d at pp.
598–599, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1719
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.09[3]
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360. Nominal Damages
If you decide that [name of defendant] breached the contract but also that
[name of plaintiff] was not harmed by the breach, you may still award
[him/her/nonbinary pronoun/it] nominal damages such as one dollar.
New September 2003
Sources and Authority
• Nominal Damages. Civil Code section 3360.
• “A plaintiff is entitled to recover nominal damages for the breach of a contract,
despite inability to show that actual damage was inflicted upon him, since the
defendant’s failure to perform a contractual duty is, in itself, a legal wrong that
is fully distinct from the actual damages. The maxim that the law will not be
concerned with trifles does not, ordinarily, apply to violation of a contractual
right. Accordingly, nominal damages, which are presumed as a matter of law to
stem merely from the breach of a contract may properly be awarded for the
violation of such a right. And, by statute, such is also the rule in California.”
(Sweet v. Johnson (1959) 169 Cal.App.2d 630, 632–633 [337 P.2d 499], internal
citations omitted.)
• “With one exception . . . an unbroken line of cases holds that nominal damages
are limited to an amount of a few cents or a dollar.” (Avina v. Spurlock (1972)
28 Cal.App.3d 1086, 1089 [105 Cal.Rptr. 198], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 903
15 California Forms of Pleading and Practice, Ch. 177, Damages, §§ 177.14, 177.71
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[11]
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361. Reliance Damages
If you decide that [name of defendant] breached the contract, [name of
plaintiff] may recover the reasonable amount of money that
[he/she/nonbinary pronoun/it] spent in preparing for contract
performance. These amounts are called “reliance damages.” [Name of
plaintiff] must prove the amount that [he/she/nonbinary pronoun/it] was
induced to spend in reliance on the contract.
If [name of plaintiff] proves reliance damages, [name of defendant] may
avoid paying [some/ [or] all] of those damages by proving [include one or
both of the following]:
[1. That [some/ [or] all] of the money that [name of plaintiff] spent in
reliance was unnecessary;]
[1. [or]
[2. That [name of plaintiff] would have suffered a loss even if [name of
defendant] had fully performed [his/her/nonbinary pronoun/its]
obligations under the contract].
New December 2015
Sources and Authority
• “One proper ‘measure of damages for breach of contract is the amount expended
[by the nonbreaching party] on the faith of the contract.’ ” (Agam v. Gavra
(2015) 236 Cal.App.4th 91, 105 [186 Cal.Rptr.3d 295].)
• “Where, without fault on his part, one party to a contract who is willing to
perform it is prevented from doing so by the other party, the primary measure of
damages is the amount of his loss, which may consist of his reasonable outlay or
expenditure toward performance, and the anticipated profits which he would
have derived from performance.” (Buxbom v. Smith (1944) 23 Cal.2d 535, 541
[145 P.2d 305].)
• “This measure of damages often is referred to as ‘reliance damages.’ It has been
held to apply where, as here, ‘one party to an established business association
fails and refuses to carry out the terms of the agreement, and thereby deprives
the other party of the opportunity to make good in the business . . . .’ ” (Agam,
supra, 236 Cal.App.4th at p. 105, internal citations omitted.)
• “The lost earnings found by the jury constituted harm flowing not from the
breach of any contract but from plaintiff’s entry into the contract in the
expectation of receiving the promised options. Such ‘reliance’ damages may
sometimes be recovered on a contract claim ‘[a]s an alternative’ to expectation
damages.” (Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775,
788 [211 Cal.Rptr.3d 743], original italics.)
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• “[I]n the context of reliance damages, the plaintiff bears the burden to establish
the amount he or she expended in reliance on the contract. The burden then
shifts to the defendant to show (1) the amount of plaintiff’s expenses that were
unnecessary and/or (2) how much the plaintiff would have lost had the defendant
fully performed (i.e., absent the breach). The plaintiff’s recovery must be
reduced by those amounts.” (Agam, supra, 236 Cal.App.4th at p. 107, internal
citation omitted.)
• “Concerning reliance damages, Restatement [Second of Contracts] section 349
provides as follows: ‘As an alternative to the measure of damages stated in
[Restatement section] 347, the injured party has a right to damages based on his
reliance interest, including expenditures made in preparation for performance or
in performance, less any loss that the party in breach can prove with reasonable
certainty the injured party would have suffered had the contract been
performed.’ ” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th
887, 907 [28 Cal.Rptr.3d 894], original italics.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 894 et seq.
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.79
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.21 et seq.
(Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.15
362–369. Reserved for Future Use
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370. Common Count: Money Had and Received
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun/it] money. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] received money that was intended to be
used for the benefit of [name of plaintiff];
2. That the money was not used for the benefit of [name of plaintiff];
and
3. That [name of defendant] has not given the money to [name of
plaintiff].
New June 2005
Directions for Use
The instructions in this series are not intended to cover all available common
counts. Users may need to draft their own instructions or modify the CACI
instructions to fit the circumstances of their case.
Sources and Authority
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in justice
and right, should be returned. . . . The plaintiff’s right to recover is governed by
principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins.
Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
• “ ‘A cause of action for money had and received is stated if it is alleged [that]
the defendant “is indebted to the plaintiff in a certain sum ‘for money had and
received by the defendant for the use of the plaintiff.’ ” . . .’ The claim is viable
‘ “wherever one person has received money which belongs to another, and which
in equity and good conscience should be paid over to the latter.” ’ As juries are
instructed in CACI No. 370, the plaintiff must prove that the defendant received
money ‘intended to be used for the benefit of [the plaintiff],’ that the money was
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not used for the plaintiff’s benefit, and that the defendant has not given the
money to the plaintiff.” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th
1439, 1454 [151 Cal.Rptr.3d 804], internal citations omitted.)
• “ ‘The action for money had and received is based upon an implied promise
which the law creates to restore money which the defendant in equity and good
conscience should not retain. The law implies the promise from the receipt of
the money to prevent unjust enrichment. The measure of the liability is the
amount received.’ Recovery is denied in such cases unless the defendant himself
has actually received the money.” (Rotea v. Izuel (1939) 14 Cal.2d 605, 611 [95
P.2d 927], internal citations omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief is
something in the nature of a constructive trust and . . . ‘one cannot be held to
be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘This kind of action to recover back money which ought not in justice to be
kept is very beneficial, and, therefore, much encouraged. It lies for money paid
by mistake, or upon a consideration which happens to fail, or extortion, or
oppression, or an undue advantage of the plaintiff’s situation contrary to the laws
made for the protection of persons under those circumstances.’ ” (Minor v.
Baldridge (1898) 123 Cal. 187, 191 [55 P. 783], internal citation omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money paid
pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
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form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
• “The cause of action [for money had and received] is available where, as here,
the plaintiff has paid money to the defendant pursuant to a contract which is
void for illegality.” (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 [33
Cal.Rptr.2d 276], internal citations omitted.)
• “ ‘It is well established in our practice that an action for money had and received
will lie to recover money paid by mistake, under duress, oppression or where an
undue advantage was taken of plaintiffs’ situation whereby money was exacted
to which the defendant had no legal right.’ ” (J.C. Peacock, Inc. v. Hasko (1961)
196 Cal.App.2d 353, 361 [16 Cal.Rptr. 518], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 561
12 California Forms of Pleading and Practice, Ch. 121, Common Counts,
§§ 121.24[1], 121.51 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, § 43.25 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
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371. Common Count: Goods and Services Rendered
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun/it] money for [goods delivered/services
rendered]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] requested, by words or conduct, that
[name of plaintiff] [perform services/deliver goods] for the benefit
of [name of defendant];
2. That [name of plaintiff] [performed the services/delivered the
goods] as requested;
3. That [name of defendant] has not paid [name of plaintiff] for the
[services/goods]; and
4. The reasonable value of the [goods/services] that were provided.
New June 2005
Sources and Authority
• “ ‘ “Quantum meruit refers to the well-established principle that ‘the law implies
a promise to pay for services performed under circumstances disclosing that they
were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a party
need not prove the existence of a contract [citations], but it must show the
circumstances were such that ‘the services were rendered under some
understanding or expectation of both parties that compensation therefor was to
be made.’ ” [Citation.]’ ‘The underlying idea behind quantum meruit is the law’s
distaste for unjust enrichment. If one has received a benefit which one may not
justly retain, one should “restore the aggrieved party to his [or her] former
position by return of the thing or its equivalent in money.” [Citation.]’ “ ‘The
measure of recovery in quantum meruit is the reasonable value of the services
rendered provided they were of direct benefit to the defendant.” [Citations.]’ In
other words, quantum meruit is equitable payment for services already
rendered.” (E. J. Franks Construction, Inc. v. Sahota (2014) 226 Cal.App.4th
1123, 1127–1128 [172 Cal.Rptr.3d 778], original italics, internal citations
omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
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the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “To recover on a claim for the reasonable value of services under a quantum
meruit theory, a plaintiff must establish both that he or she was acting pursuant
to either an express or implied request for services from the defendant and that
the services rendered were intended to and did benefit the defendant.” (Ochs v.
PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [9 Cal.Rptr.3d 734],
internal citation omitted.)
• “[W]here services have been rendered under a contract which is unenforceable
because not in writing, an action generally will lie upon a common count for
quantum meruit.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76
Cal.App.4th 990, 996 [90 Cal.Rptr.2d 665].)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in justice
and right, should be returned. . . . The plaintiff’s right to recover is governed by
principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins.
Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money paid
pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
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Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 554
12 California Forms of Pleading and Practice, Ch. 121, Common Counts, §§ 121.25,
121.55–121.58 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, §§ 44.33, 44.40 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
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372. Common Count: Open Book Account
A book account is a written record of the credits and debts between
parties [to a contract/in a fiduciary relationship]. [The contract may be
oral, in writing, or implied by the parties’ words and conduct.] A book
account is “open” if entries can be added to it from time to time.
[Name of plaintiff] claims that there was an open book account in which
financial transactions between the parties were recorded and that [name
of defendant] owes [him/her/nonbinary pronoun/it] money on the account.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] had financial
transactions with each other;
2. That [name of plaintiff], in the regular course of business, kept [a
written/an electronic] account of the debits and credits involved
in the transactions;
3. That [name of defendant] owes [name of plaintiff] money on the
account; and
4. The amount of money that [name of defendant] owes [name of
plaintiff].
New December 2005; Revised November 2019
Directions for Use
The instructions in this series are not intended to cover all available common
counts. Users may need to draft their own instructions or modify the CACI
instructions to fit the circumstances of the case.
Include the second sentence in the opening paragraph if the account is based on a
contract rather than a fiduciary relationship. It is the contract that may be oral or
implied; the book account must be in writing. (See Code Civ. Proc., § 337a [book
account must be kept in a reasonably permanent form]; Joslin v. Gertz (1957) 155
Cal.App.2d 62, 65–66 [317 P.2d 155] [book account is a detailed statement kept in a
book].)
Sources and Authority
• “ ‘A book account may be deemed to furnish the foundation for a suit in
assumpsit . . . only when it contains a statement of the debits and credits of the
transactions involved completely enough to supply evidence from which it can
be reasonably determined what amount is due to the claimant.’ . . . ‘The term
“account,” . . . clearly requires the recording of sufficient information regarding
the transaction involved in the suit, from which the debits and credits of the
respective parties may be determined, so as to permit the striking of a balance to
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ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955) 132
Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.)
• “A book account is defined . . . as ‘a detailed statement, kept in a book, in the
nature of debit and credit, arising out of contract or some fiduciary relation.’ It
is, of course, necessary for the book to show against whom the charges are
made. It must also be made to appear in whose favor the charges run. This may
be shown by the production of the book from the possession of the plaintiff and
his identification of it as the book in which he kept the account between him and
the debtor. An open book account may consist of a single entry reflecting the
establishment of an account between the parties, and may contain charges alone
if there are no credits to enter. Money loaned is the proper subject of an open
book account. Of course a mere private memorandum does not constitute a book
account.” (Joslin, supra, 155 Cal.App.2d at pp. 65–66, internal citations
omitted.)
• “A book account may furnish the basis for an action on a common count ‘ “. . .
when it contains a statement of the debits and credits of the transactions
involved completely enough to supply evidence from which it can be reasonably
determined what amount is due to the claimant.” ’ A book account is described
as ‘open’ when the debtor has made some payment on the account, leaving a
balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co.
(1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and
footnote omitted.)
• “A book account is a detailed statement of debit/credit transactions kept by a
creditor in the regular course of business, and in a reasonably permanent manner.
In one sense, an open-book account is an account with one or more items
unsettled. However, even if an account is technically settled, the parties may still
have an open-book account, if they anticipate possible future transactions
between them.” (Reigelsperger v. Siller (2007) 40 Cal.4th 574, 579, fn. 5 [53
Cal.Rptr.3d 887, 150 P.3d 764], original italics, internal citation omitted.)
• “[T]he most important characteristic of a suit brought to recover a sum owing on
a book account is that the amount owed is determined by computing all of the
credits and debits entered in the book account.” (Interstate Group
Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)
• “It is apparent that the mere entry of dates and payments of certain sums in the
credit column of a ledger or cash book under the name of a particular individual,
without further explanation regarding the transaction to which they apply, may
not be deemed to constitute a ‘book account’ upon which an action in assumpsit
may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d
434].)
• “The law does not prescribe any standard of bookkeeping practice which all
must follow, regardless of the nature of the business of which the record is kept.
We think it makes no difference whether the account is kept in one book or
several so long as they are permanent records, and constitute a system of
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bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop
(1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim. Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in justice
and right, should be returned . . . . The plaintiff’s right to recover is governed
by principles of equity, although the action is one at law.’ ” (Mains v. City Title
Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief is
something in the nature of a constructive trust and . . . ‘one cannot be held to
be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money paid
pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
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form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 561
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.20, 8.47 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, § 43.28 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
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373. Common Count: Account Stated
An account stated is an agreement between the parties, based on prior
transactions between them establishing a debtor-creditor relationship,
that a particular amount is due and owing from the debtor to the
creditor. The agreement may be oral, in writing, or implied from the
parties’ words and conduct.
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun/it] money on an account stated. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] owed [name of plaintiff] money from
previous financial transactions;
2. That [name of plaintiff] and [name of defendant], by words or
conduct, agreed that the amount that [name of plaintiff] claimed to
be due from [name of defendant] was the correct amount owed;
3. That [name of defendant], by words or conduct, promised to pay
the stated amount to [name of plaintiff];
4. That [name of defendant] has not paid [name of plaintiff] [any/all]
of the amount owed under this account; and
5. The amount of money [name of defendant] owes [name of plaintiff].
New December 2005; Revised November 2019
Sources and Authority
• “ ‘An account stated is an agreement, based on prior transactions between the
parties, that the items of an account are true and that the balance struck is due
and owing. [Citation.] To be an account stated, “it must appear that at the time
of the statement an indebtedness from one party to the other existed, that a
balance was then struck and agreed to be the correct sum owing from the debtor
to the creditor, and that the debtor expressly or impliedly promised to pay to the
creditor the amount thus determined to be owing.” [Citation.]’ ” (Leighton v.
Forster (2017) 8 Cal.App.5th 467, 491 [213 Cal.Rptr.3d 899].)
• “The essential elements of an account stated are: (1) previous transactions
between the parties establishing the relationship of debtor and creditor; (2) an
agreement between the parties, express or implied, on the amount due from the
debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the
amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76
Cal.Rptr. 663], internal citations omitted.)
• “The agreement of the parties necessary to establish an account stated need not
be express and frequently is implied from the circumstances. In the usual
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situation, it comes about by the creditor rendering a statement of the account to
the debtor. If the debtor fails to object to the statement within a reasonable time,
the law implies his agreement that the account is correct as rendered.” (Zinn,
supra, 271 Cal.App.2d at p. 600, internal citations omitted.)
• “An account stated is an agreement, based on the prior transactions between the
parties, that the items of the account are true and that the balance struck is due
and owing from one party to another. When the account is assented to, ‘ “it
becomes a new contract. An action on it is not founded upon the original items,
but upon the balance agreed to by the parties. . . .” Inquiry may not be had into
those matters at all. It is upon the new contract by and under which the parties
have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer
(1980) 103 Cal.App.3d 782, 786–787 [163 Cal.Rptr. 483], internal citations
omitted.)
• “To be an account stated, ‘it must appear that at the time of the statement an
indebtedness from one party to the other existed, that a balance was then struck
and agreed to be the correct sum owing from the debtor to the creditor, and that
the debtor expressly or impliedly promised to pay to the creditor the amount
thus determined to be owing.’ The agreement necessary to establish an account
stated need not be express and is frequently implied from the circumstances.
When a statement is rendered to a debtor and no reply is made in a reasonable
time, the law implies an agreement that the account is correct as rendered.
Actions on accounts stated frequently arise from a series of transactions which
also constitute an open book account. However, an account stated may be found
in a variety of commercial situations. The acknowledgement of a debt consisting
of a single item may form the basis of a stated account. The key element in
every context is agreement on the final balance due.” (Maggio, Inc. v. Neal
(1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr. 883], internal citations
omitted.)
• “An account stated need not be submitted by the creditor to the debtor. A
statement expressing the debtor’s assent and acknowledging the agreed amount
of the debt to the creditor equally establishes an account stated.” (Truestone, Inc.
v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr.
757], internal citations omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “The account stated may be attacked only by proof of ‘fraud, duress, mistake, or
other grounds cognizable in equity for the avoidance of an instrument.’ The
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defendant ‘will not be heard to answer when action is brought upon the account
stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103
Cal.App.3d at p. 787, internal citations omitted.)
• “An account stated need not cover all the dealings or claims between the parties.
There may be a partial settlement and account stated as to some of the
transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation
omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 561
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 1003, 1004
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.10, 8.40–8.46 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
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374. Common Count: Mistaken Receipt
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun/it] money [that was paid/for goods that were
received] by mistake. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] [paid [name of defendant] money/sent goods
to [name of defendant]] by mistake;
2. That [name of defendant] did not have a right to [that money/the
goods];
3. That [name of plaintiff] has asked [name of defendant] to return the
[money/goods];
4. That [name of defendant] has not returned the [money/goods] to
[name of plaintiff]; and
5. The amount of money that [name of defendant] owes [name of
plaintiff].
New December 2005
Sources and Authority
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money paid
pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “It is well settled that no contract is necessary to support an action for money
had and received other than the implied contract which results by operation of
law where one person receives the money of another which he has no right,
conscientiously, to retain. Under such circumstances the law will imply a
promise to return the money. The action is in the nature of an equitable one and
is based on the fact that the defendant has money which, in equity and good
conscience, he ought to pay to the plaintiffs. Such an action will lie where the
money is paid under a void agreement, where it is obtained by fraud or where it
was paid by a mistake of fact.” (Stratton v. Hanning (1956) 139 Cal.App.2d 723,
727 [294 P.2d 66], internal citations omitted.)
• Restatement First of Restitution, section 28, provides:
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A person who has paid money to another because of a mistake of fact and who
does not obtain what he expected in return is entitled to restitution from the
other if the mistake was induced:
(a) by the fraud of the payee, or
(b) by his innocent and material misrepresentation, or
(c) by the fraud or material misrepresentation of a person purporting
to act as the payee’s agent, or
(d) by the fraud or material misrepresentation of a third person,
provided that the payee has notice of the fraud or representation
before he has given or promised something of value.
• “Money paid upon a mistake of fact may be recovered under the common count
of money had and received. The plaintiff, however negligent he may have been,
may recover if his conduct has not altered the position of the defendant to his
detriment.” (Thresher v. Lopez (1921) 52 Cal.App. 219, 220 [198 P. 419],
internal citations omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in justice
and right, should be returned. . . . The plaintiff’s right to recover is governed by
principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins.
Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
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action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 561
12 California Forms of Pleading and Practice, Ch. 121, Common Counts, § 121.25
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
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375. Restitution From Transferee Based on Quasi-Contract or
Unjust Enrichment
[Name of plaintiff] claims that [name of defendant] must restore to [name
of plaintiff] [specify, e.g., money] that [name of defendant] received from
[name of third party], but that really should belong to [name of plaintiff].
[Name of plaintiff] is entitled to restitution if [he/she/nonbinary pronoun]
proves that [name of defendant] knew or had reason to know that [name
of third party] [specify act constituting unjust enrichment, e.g., embezzled
money from [name of plaintiff]].
New November 2019
Directions for Use
This instruction is for use in a claim for restitution based on the doctrines of quasi-
contract and unjust enrichment. Under quasi-contract, one is entitled to restitution of
one’s money or property that a third party has misappropriated and transferred to the
defendant if the defendant had reason to believe that the thing received had been
unlawfully taken from the plaintiff by the third party. (Welborne v. Ryman-Carroll
Foundation (2018) 22 Cal.App.5th 719, 725–726 [231 Cal.Rptr.3d 806].) The
elements of a claim for unjust enrichment are receipt of a benefit and unjust
retention of the benefit at the expense of another. (Professional Tax Appeal v.
Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238–242 [239
Cal.Rptr.3d 908].) Unlawfulness is not required.
Sources and Authority
• “ ‘ “[Quasi-contract] is an obligation . . . created by the law without regard to
the intention of the parties, and is designed to restore the aggrieved party to [its]
former position by return of the thing or its equivalent in money. [Citations.]” ’
The doctrine focuses on equitable principles; its key phrase is ‘ “unjust
enrichment,” ’ which is used to identify the ‘transfer of money or other valuable
assets to an individual or a company that is not entitled to them.’ ” (Welborne,
supra, 22 Cal.App.5th at p. 725, original italics, internal citations omitted.)
• “Under the law of restitution, an individual may be required to make restitution
if he is unjustly enriched at the expense of another. A person is enriched if he
receives a benefit at another’s expense. The term ‘benefit’ ‘denotes any form of
advantage.’ Thus, a benefit is conferred not only when one adds to the property
of another, but also when one saves the other from expense or loss. Even when a
person has received a benefit from another, he is required to make restitution
‘only if the circumstances of its receipt or retention are such that, as between the
two persons, it is unjust for him to retain it.’ ” (Ghirardo v. Antonioli (1996) 14
Cal.4th 39, 51 [57 Cal.Rptr.2d 687, 924 P.2d 996], internal citations omitted.)
• “[T]he recipient of money who has reason to believe that the funds he or she
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receives were stolen may be liable for restitution.” (Welborne, supra, 22
Cal.App.5th at p. 726, original italics.)
• “A transferee who would be under a duty of restitution if he had knowledge of
pertinent facts, is under such duty if, at the time of the transfer, he suspected
their existence.” (Welborne, supra, 22 Cal.App.5th at p. 726 [quoting
Restatement of Restitution, § 10].)
• “[Defendant] also errs in its claim that this matter may not be tried to a jury.
The gist of an action in which a party seeks only money damages is legal in
nature even though equitable principles are to be applied. As appellant argues,
this is an express holding of Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th
723, 728 [91 Cal.Rptr.2d 881].” (Welborne, supra, 22 Cal.App.5th at p. 728, fn.
8, internal citation omitted.)
• “[U]njust enrichment is not a cause of action. Rather, it is a general principle
underlying various doctrines and remedies, including quasi-contract.” (Jogani v.
Superior Court (2008) 165 Cal.App.4th 901, 911 [81 Cal.Rptr.3d 503], internal
citation omitted.)
• “Unlike a claim for damages based on breach of a legal duty, appellants’ unjust
enrichment claim is grounded in equitable principles of restitution. An individual
is required to make restitution when he or she has been unjustly enriched at the
expense of another. A person is enriched if he or she receives a benefit at
another’s expense. The term ‘benefit’ connotes any type of advantage. [¶]
Appellants have stated a valid cause of action for unjust enrichment based on
[defendant]’s unjustified charging and retention of excessive fees which the title
companies passed through to them.” (Hirsch v. Bank of America (2003) 107
Cal.App.4th 708, 721–722 [132 Cal.Rptr.2d 220], original italics, internal
citations omitted.)
• “Although some California courts have suggested the existence of a separate
cause of action for unjust enrichment, this court has recently held that ‘ “[t]here
is no cause of action in California for unjust enrichment.” [Citations.] Unjust
enrichment is synonymous with restitution. [Citation.]’ ” (Levine v. Blue Shield
of California (2010) 189 Cal.App.4th 1117, 1138 [117 Cal.Rptr.3d 262], internal
citation omitted.)
• “California law on unjust enrichment is not narrowly and rigidly limited to
quasi-contract principles, as defendants contend. ‘[T]he doctrine also recognizes
an obligation imposed by law regardless of the intent of the parties. In these
instances there need be no relationship that gives substance to an implied intent
basic to the “contract” concept, rather the obligation is imposed because good
conscience dictates that under the circumstances the person benefited should
make reimbursement.’ ” (Professional Tax Appeal, supra, 29 Cal.App.5th at p.
240, original italics.)
• “Finally, plaintiff’s complaint also stated facts that, if proven, are sufficient to
defeat a claim that defendants were bona fide purchasers without notice of
plaintiff’s claim. ‘[A] bona fide purchaser is generally not required to make
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restitution.’ But, ‘[a] transferee with knowledge of the circumstances surrounding
the unjust enrichment may be obligated to make restitution.’ [¶] For a defendant
to be ‘ “without notice” ’ means to be ‘without notice of the facts giving rise to
the restitution claim.’ ‘A person has notice of a fact if the person either knows
the fact or has reason to know it. [¶] . . . A person has reason to know a fact if
[¶] (a) the person has received an effective notification of the fact; [¶] (b)
knowledge of the fact is imputed to the person by statute . . . or by other law
(including principles of agency); or [¶] (c) other facts known to the person
would make it reasonable to infer the existence of the fact, or prudent to conduct
further inquiry that would reveal it.’ ” (Professional Tax Appeal, supra, 29
Cal.App.5th at p. 241, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 1050 et seq.
12 California Forms of Pleading and Practice, Ch. 121, Common Counts, § 121.25
(Matthew Bender)
376–379. Reserved for Future Use
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380. Agreement Formalized by Electronic Means—Uniform
Electronic Transactions Act (Civ. Code, § 1633.1 et seq.)
[Name of plaintiff] claims that the parties entered into a valid contract in
which [some of] the required terms were supplied by [specify electronic
means, e.g., e-mail messages]. If the parties agree, they may form a
binding contract using an electronic record. An “electronic record” is
one created, generated, sent, communicated, received, or stored by
electronic means. [E.g., E-Mail] is an electronic record.
[Name of plaintiff] must prove, based on the context and surrounding
circumstances, including the conduct of the parties, that the parties
agreed to use [e.g., e-mail] to formalize their agreement.
[[Name of plaintiff] must have sent the contract documents to [name of
defendant] in an electronic record capable of retention by [name of
defendant] at the time of receipt. An electronic record is not capable of
retention by the recipient if the sender or its information processing
system limits or prohibits the ability of the recipient to print or store it.]
New December 2012; Revised December 2016
Directions for Use
This instruction is for use if the plaintiff is relying on the Uniform Electronic
Transactions Act (UETA, Civ. Code, § 1633.1 et seq.) to prove contract formation. If
there are other contested issues as to whether a contract was formed, also give
CACI No. 303, Breach of Contract—Essential Factual Elements.
The first paragraph asserts that electronic means were used to supply some or all of
the essential elements of the contract. Give the third paragraph if a law requires a
person to provide, send, or deliver information in writing to another person. (See
Civ. Code, § 1633.8(a).)
The most likely jury issue is whether the parties agreed to rely on electronic records
to finalize their agreement. Whether the parties agree to conduct a transaction by
electronic means is determined from the context and surrounding circumstances,
including the parties’ conduct. (See Civ. Code, § 1633.5(b).)
The UETA does not specify any particular transmissions that meet the definition of
“electronic record,” such as e-mail or fax. (See Civ. Code, § 1633.2(g).)
Nevertheless, there would seem to be little doubt that e-mail and fax meet the
definition. The parties will probably stipulate accordingly, or the court may find that
the particular transmission at issue meets the definition as a matter of law.
If a law requires a signature, an electronic signature satisfies the law. (Civ. Code,
§ 1633.7(d).) The UETA defines an electronic signature as an electronic sound,
symbol, or process attached to or logically associated with an electronic record and
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executed or adopted by a person with the intent to sign the electronic record. (Civ.
Code, § 1633.2(h); see Gov. Code, § 16.5(d) (digital signature).) The validity of an
electronic signature under this definition would most likely be a question of law for
the court. If there is an issue of fact with regard to the parties’ intent to use
electronic signatures, this instruction will need to be modified accordingly.
Sources and Authority
• “Electronic Record” Defined Under UETA. Civil Code section 1633.2(g).
• “Electronic Signature” Defined Under UETA. Civil Code section 1633.2(h).
• Agreement to Conduct Transaction by Electronic Means. Civil Code section
1633.5(b).
• Enforceability of Electronic Transactions. Civil Code section 1633.7.
• Providing Required Information by Electronic Means. Civil Code section
1633.8(a).
• Attributing Electronic Record or Signature to Person. Civil Code section 1633.9.
• “ ‘Whether the parties agree to conduct a transaction by electronic means is
determined from the context and surrounding circumstances, including the
parties’ conduct. . . . ‘The absence of an explicit agreement to conduct the
transaction by electronic means is not determinative; however, it is a relevant
factor to consider.” (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232
Cal.App.4th 974, 989 [182 Cal.Rptr.3d 154].)
• “Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform
Electronic Transactions Act, an electronic signature has the same legal effect as a
handwritten signature.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232
Cal.App.4th 836, 843 [181 Cal.Rptr.3d 781], internal citations omitted.)
• “Civil Code section 1633.9 addresses how a proponent of an electronic signature
may authenticate the signature—that is, show the signature is, in fact, the
signature of the person the proponent claims it is.” (Ruiz, supra, 232 Cal.App.4th
at p. 843.)
• “We agree that a printed name or some other symbol might, under specific
circumstances, be a signature under UETA . . . .” (J.B.B. Investment Partners,
Ltd., supra, 232 Cal.App.4th at p. 988.)
• “The trial court’s analysis was incomplete. Attributing the name on an e-mail to
a particular person and determining that the printed name is ‘[t]he act of [this]
person’ is a necessary prerequisite but is insufficient, by itself, to establish that it
is an ‘electronic signature.’ . . . UETA defines the term ‘electronic signature.’
Subdivision (h) of section 1633.2 states that ‘ “[e]lectronic signature” means an
electronic sound, symbol, or process attached to or logically associated with an
electronic record and executed or adopted by a person with the intent to sign the
electronic record.’ (Italics added; see CACI No. 380 [party suing to enforce an
agreement formalized by electronic means must prove ‘based on the context and
surrounding circumstances, including the conduct of the parties, that the parties
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agreed to use [e.g., e-mail] to formalize their agreement . . .]’ ” (J.B.B.
Investment Partners, Ltd., supra, 232 Cal.App.4th at pp. 988–989, original
italics.)
• “In the face of [plaintiff]’s failure to recall electronically signing the 2011
agreement, the fact the 2011 agreement had an electronic signature on it in the
name of [plaintiff], and a date and time stamp for the signature, was insufficient
to support a finding that the electronic signature was, in fact, ‘the act of’
[plaintiff].” (Ruiz, supra, 232 Cal.App.4th at p. 844.)
• “[W]hether [defendant]’s printed name constituted an ‘electronic signature’
within the meaning of UETA or under the law of contract, are legal
issues . . . .” (J.B.B. Investment Partners, Ltd., supra, 232 Cal.App.4th at p.
984.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts § 11
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 15, Attacking
or Defending Existence of Contract—Failure to Comply With Applicable
Formalities, 15.32
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.26
(Matthew Bender)
27 California Legal Forms: Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.17 (Matthew Bender)
381–399. Reserved for Future Use
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VF-300. Breach of Contract
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into a
contract?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[2. Did [name of plaintiff] do all, or substantially all, of the significant
things that the contract required [him/her/nonbinary pronoun/it] to
do?
[2. Yes No
[2. If your answer to question 2 is yes, [skip question 3 and] answer
question 4. If you answered no, [answer question 3 if excuse is at
issue/stop here, answer no further questions, and have the
presiding juror sign and date this form].]
[3. Was [name of plaintiff] excused from having to do all, or
substantially all, of the significant things that the contract
required [him/her/nonbinary pronoun/it] to do?
[3. Yes No
[3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
[4. Did all the conditions that were required for [name of defendant]’s
performance occur?
[4. Yes No
[4. If your answer to question 4 is yes, [skip question 5 and] answer
question 6. If you answered no, [answer question 5 if waiver or
excuse is at issue/stop here, answer no further questions, and have
the presiding juror sign and date this form].]
[5. Were the required conditions that did not occur
[excused/waived]?
[5. Yes No
[5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
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6. [Did [name of defendant] fail to do something that the contract
required [him/her/nonbinary pronoun/it] to do?
6. Yes No]
6. [or]
6. [Did [name of defendant] do something that the contract
prohibited [him/her/nonbinary pronoun/it] from doing?
6. Yes No]
6. If your answer to [either option for] question 6 is yes, then
answer question 7. If you answered no [to both options], stop
here, answer no further questions, and have the presiding juror
sign and date this form.
7. Was [name of plaintiff] harmed by [name of defendant]’s breach of
contract?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past [economic] loss [including [insert
descriptions of claimed damages]]: $ ]
[b. Future [economic] loss [including [insert
descriptions of claimed damages]]: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010, June 2011, June 2013, June 2015, May
2020
Directions for Use
This verdict form is based on CACI No. 303, Breach of Contract—Essential Factual
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Elements. This form is intended for use in most contract disputes. If more specificity
is desired, see verdict forms that follow.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Optional questions 2 and 3 address acts that the plaintiff must have performed
before the defendant’s duty to perform is triggered. Include question 2 if the court
has determined that the contract included dependent covenants, such that the failure
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 3 if the plaintiff claims that the plaintiff
was excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence. (DRG/
Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].)
Note that questions 4 and 5 address conditions precedent, not the defendant’s
nonperformance after the conditions have all occurred or been excused. The
defendant’s nonperformance is the first option for question 6. If the defendant
alleges that its nonperformance was excused or waived by the plaintiff, an additional
question on excuse or waiver should be included after question 6.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-301. Breach of Contract—Affirmative Defense—Unilateral
Mistake of Fact
We answer the questions submitted to us as follows:
1. Was [name of defendant] mistaken about [insert description of
mistake]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] know that [name of defendant] was mistaken
and use that mistake to take advantage of [him/her/nonbinary
pronoun/it]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s mistake caused by [his/her/nonbinary
pronoun/its] excessive carelessness?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would [name of defendant] have agreed to enter into the contract
if [he/she/nonbinary pronoun/it] had known about the mistake?
4. Yes No
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010
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Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. This form is not a stand-
alone verdict form. It may be incorporated into VF-300, Breach of Contract, if the
elements of the affirmative defense are at issue.
This verdict form is based on CACI No. 330, Affırmative Defense—Unilateral
Mistake of Fact. The verdict forms do not address all available affirmative defenses.
The parties may need to create their own verdict forms to fit the issues involved in
the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-302. Breach of Contract—Affirmative Defense—Duress
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] use a wrongful act or wrongful threat to
pressure [name of defendant] into consenting to the contract?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] so afraid or intimidated by the wrongful
act or wrongful threat that [he/she/nonbinary pronoun] did not
have the free will to refuse to consent to the contract?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Would [name of defendant] have consented to the contract without
the wrongful act or wrongful threat?
3. Yes No
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. This form is not a stand-
alone verdict form. It may be incorporated into VF-300, Breach of Contract, if the
elements of the affirmative defense are at issue.
This verdict form is based on CACI No. 332, Affırmative Defense—Duress. The
verdict forms do not address all available affirmative defenses. The parties may need
to create their own verdict forms to fit the issues involved in the case.
If there are multiple causes of action, users may wish to combine the individual
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forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-303. Breach of Contract—Contract Formation at Issue
We answer the questions submitted to us as follows:
1. Were the contract terms clear enough so that the parties could
understand what each was required to do?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the parties agree to give each other something of value?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the parties agree to the terms of the contract?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[4. Did [name of plaintiff] do all, or substantially all, of the significant
things that the contract required [him/her/nonbinary pronoun/it] to
do?
[4. Yes No
[4. If your answer to question 4 is yes, [skip question 5 and] answer
question 6. If you answered no, [answer question 5 if excuse is at
issue/stop here, answer no further questions, and have the
presiding juror sign and date the form].]
[5. Was [name of plaintiff] excused from having to do all, or
substantially all, of the significant things that the contract
required [him/her/nonbinary pronoun/it] to do?
[5. Yes No
[5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
[6. Did all the conditions that were required for [name of defendant]’s
performance occur?
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[6. Yes No
[6. If your answer to question 6 is yes, [skip question 7 and] answer
question 8. If you answered no, [answer question 7 if excuse_or
waiver is at issue/stop here, answer no further questions, and
have the presiding juror sign and date this form.]
[7. Were the required conditions that did not occur
[excused/waived]?
[7. Yes No
[7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
8. [Did [name of defendant] fail to do something that the contract
required [him/her/nonbinary pronoun/it] to do?
8. Yes No]
8. [or]
8. [Did [name of defendant] do something that the contract
prohibited [him/her/nonbinary pronoun/it] from doing?
8. Yes No]
8. If your answer to [either option for] question 8 is yes, then
answer question 9. If you answered no [to both options], stop
here, answer no further questions, and have the presiding juror
sign and date this form.
9. Was [name of plaintiff] harmed by [name of defendant]’s breach of
contract?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What are [name of plaintiff]’s damages?
[a. Past [economic] loss [including] [insert descriptions of claimed
damages]:
[a. $ ]
[b. Future [economic] loss [including] [insert descriptions of
claimed damages]:]
[b. $ ]
[b. TOTAL $
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Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New October 2004; Revised December 2010, June 2015, May 2020
Directions for Use
This verdict form is based on CACI No. 302, Contract Formation—Essential
Factual Elements, and CACI No. 303, Breach of Contract—Essential Factual
Elements. The elements concerning the parties’ legal capacity and legal purpose will
likely not be issues for the jury. If the jury is needed to make a factual
determination regarding these issues, appropriate questions may be added to this
verdict form.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Optional questions 4 and 5 address acts that the plaintiff must have performed
before the defendant’s duty to perform is triggered. Include question 4 if the court
has determined that the contract included dependent covenants, such that the failure
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 5 if the plaintiff claims that the plaintiff
was excused from having to perform an otherwise required obligation.
Optional questions 6 and 7 address conditions precedent to the defendant’s
performance. Include question 6 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 7 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence. (DRG/
Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].)
Note that questions 6 and 7 address conditions precedent, not the defendant’s
nonperformance after the conditions have all occurred or been excused. The
defendant’s nonperformance is the first option for question 8. If the defendant
alleges that its nonperformance was excused or waived by the plaintiff, an additional
question on excuse on waiver should be included after question 8.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 10.
If specificity is not required, users do not have to itemize all the damages listed in
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question 10. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-304. Breach of Implied Covenant of Good Faith and Fair
Dealing
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into a
contract?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[2. [Did [name of plaintiff] do all, or substantially all, of the
significant things that the contract required [him/her/nonbinary
pronoun/it] to do?
[2. Yes No]
[2. If your answer to question 2 is yes, [skip question 3 and] answer
question 4. If you answered no, [answer question 3 if excuse is at
issue/stop here, answer no further questions, and have the
presiding juror sign and date this form].]
[3. Was [name of plaintiff] excused from having to do all, or
substantially all, of the significant things that the contract
required [him/her/nonbinary pronoun/it] to do?
[3. Yes No
[3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
[4. Did all the conditions that were required for [name of defendant]’s
performance occur?
[4. Yes No
[4. If your answer to question 4 is yes, [skip question 5 and] answer
question 6. If you answered no, [answer question 5 if waiver or
excuse is at issue/stop here, answer no further questions, and have
the presiding juror sign and date this form].]
[5. Were the required conditions that did not occur
[excused/waived]?
[5. Yes No
[5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
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the presiding juror sign and date this form.]
6. Did [name of defendant] unfairly interfere with [name of plaintiff]’s
right to receive the benefits of the contract?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of plaintiff] harmed by [name of defendant]’s
interference?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past [economic] loss [including [insert
descriptions of claimed damages]]:
$ ]
[b. Future [economic] loss [including [insert
descriptions of claimed damages]]:
$ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New June 2014; Revised June 2015
Directions for Use
This verdict form is based on CACI No. 325, Breach of Implied Covenant of Good
Faith and Fair Dealing—Essential Factual Elements.
The special verdict forms in this series are intended only as models. They may need
to be modified depending on the facts of the case.
Optional questions 2 and 3 address acts that the plaintiff must have performed
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before the defendant’s duty to perform is triggered. Include question 2 if the court
has determined that the contract included dependent covenants, such that the failure
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 3 if the plaintiff claims that he or she was
excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence. (DRG/
Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].) Note that questions 4 and 5 address
conditions precedent, not the defendant’s nonperformance after the conditions have
all occurred or been excused.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories. If counts for both breach of express
contractual terms and breach of the implied covenant are alleged, this verdict form
may be combined with CACI No. VF-300, Breach of Contract. Use VF-3920 to
direct the jury to separately address the damages awarded on each count and to
avoid the jury’s awarding the same damages on both counts. (See Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [272
Cal.Rptr. 387].)
VF-305–VF-399. Reserved for Future Use
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400. Negligence—Essential Factual Elements
401. Basic Standard of Care
402. Standard of Care for Minors
403. Standard of Care for Physically Disabled Person
404. Intoxication
405. Comparative Fault of Plaintiff
406. Apportionment of Responsibility
407. Comparative Fault of Decedent
408–410. Reserved for Future Use
411. Reliance on Good Conduct of Others
412. Duty of Care Owed Children
413. Custom or Practice
414. Amount of Caution Required in Dangerous Situations
415. Employee Required to Work in Dangerous Situations
416. Amount of Caution Required in Transmitting Electric Power
417. Special Doctrines: Res ipsa loquitur
418. Presumption of Negligence per se
419. Presumption of Negligence per se (Causation Only at Issue)
420. Negligence per se: Rebuttal of the Presumption of Negligence—Violation
Excused
421. Negligence per se: Rebuttal of the Presumption of Negligence (Violation of
Minor Excused)
422. Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof.
Code, § 25602.1)
423. Public Entity Liability for Failure to Perform Mandatory Duty
424. Negligence Not Contested—Essential Factual Elements
425. “Gross Negligence” Explained
426. Negligent Hiring, Supervision, or Retention of Employee
427. Furnishing Alcoholic Beverages to Minors (Civ. Code, § 1714(d))
428. Parental Liability (Nonstatutory)
429. Negligent Sexual Transmission of Disease
430. Causation: Substantial Factor
431. Causation: Multiple Causes
432. Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act as Superseding
Cause
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434. Alternative Causation
435. Causation for Asbestos-Related Cancer Claims
436–439. Reserved for Future Use
440. Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or
Other Seizure—Essential Factual Elements
441. Negligent Use of Deadly Force by Peace Officer─Essential Factual Elements
442–449. Reserved for Future Use
450A. Good Samaritan—Nonemergency
450B. Good Samaritan—Scene of Emergency
450C. Negligent Undertaking
451. Affirmative Defense—Contractual Assumption of Risk
452. Sudden Emergency
453. Injury Incurred in Course of Rescue
454. Affirmative Defense—Statute of Limitations
455. Statute of Limitations—Delayed Discovery
456. Defendant Estopped From Asserting Statute of Limitations Defense
457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding
458–459. Reserved for Future Use
460. Strict Liability for Ultrahazardous Activities—Essential Factual Elements
461. Strict Liability for Injury Caused by Wild Animal—Essential Factual
Elements
462. Strict Liability for Injury Caused by Domestic Animal With Dangerous
Propensities—Essential Factual Elements
463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements
464–469. Reserved for Future Use
470. Primary Assumption of Risk—Exception to Nonliability—Coparticipant in
Sport or Other Recreational Activity
471. Primary Assumption of Risk—Exception to Nonliability—Instructors,
Trainers, or Coaches
472. Primary Assumption of Risk—Exception to Nonliability—Facilities Owners
and Operators and Event Sponsors
473. Primary Assumption of Risk—Exception to Nonliability—Occupation
Involving Inherent Risk
474–499. Reserved for Future Use
VF-400. Negligence—Single Defendant
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of
Others Not at Issue
VF-402. Negligence—Fault of Plaintiff and Others at Issue
VF-403. Primary Assumption of Risk—Liability of Coparticipant
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VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or
Coaches
VF-405. Primary Assumption of Risk—Liability of Facilities Owners and
Operators and Event Sponsors
VF-406. Negligence—Providing Alcoholic Beverages to Obviously Intoxicated
Minor
VF-407. Strict Liability—Ultrahazardous Activities
VF-408. Strict Liability for Domestic Animal With Dangerous Propensities
VF-409. Dog Bite Statute (Civ. Code, § 3342)
VF-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation
Would Not Have Disclosed Pertinent Facts
VF-411. Parental Liability (Nonstatutory)
VF-412–VF-499. Reserved for Future Use
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400. Negligence—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of defendant]’s negligence. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] was negligent;
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised February 2005, June 2005, December 2007,
December 2011
Directions for Use
In medical malpractice or professional negligence cases, the word “medical” or
“professional” should be added before the word “negligence” in the first paragraph.
The word “harm” is used throughout these instructions, instead of terms like
“loss,” “injury,” and “damage,” because “harm” is all-purpose and suffices in their
place.
Sources and Authority
• General Duty to Exercise Due Care. Civil Code section 1714(a).
• “Although it is true that some exceptions have been made to the general
principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence of statutory
provision declaring an exception to the fundamental principle enunciated by
section 1714 of the Civil Code, no such exception should be made unless clearly
supported by public policy.” (Rowland v. Christian (1968) 69 Cal.2d 108, 112
[70 Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘The elements of a cause of action for negligence are well established. They
are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)
the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d
496].)
• “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission
Inn Corp. (2018) 24 Cal.App.5th 627, 643 [234 Cal.Rptr.3d 330].)
• “The element of causation requires there to be a connection between the
defendant’s breach and the plaintiff’s injury.” (Coyle, supra, 24 Cal.App.5th at p.
645.)
• “ ‘In most cases, courts have fixed no standard of care for tort liability more
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precise than that of a reasonably prudent person under like circumstances.’ This
is because ‘[e]ach case presents different conditions and situations. What would
be ordinary care in one case might be negligence in another.’ ” (Coyle, supra, 24
Cal.App.5th at pp. 639–640, internal citation omitted.)
• “ ‘ “[I]t is the further function of the court to determine and formulate the
standard of conduct to which the duty requires the defendant to conform.”
[Citation.] [¶] The formulation of the standard of care is a question of law for
the court. [Citations.] Once the court has formulated the standard, its application
to the facts of the case is a task for the trier of fact if reasonable minds might
differ as to whether the defendant’s conduct has conformed to the standard.
[Citations.]’ ” (Regents of University of California v. Superior Court (2018) 29
Cal.App.5th 890, 902–903 [240 Cal.Rptr.3d 675].)
• “The first element, duty, ‘may be imposed by law, be assumed by the defendant,
or exist by virtue of a special relationship.’ ” (Doe v. United States Youth Soccer
Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128 [214 Cal.Rptr.3d 552].)
• “[T]he existence of a duty is a question of law for the court.” (Ky. Fried
Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819 [59 Cal.Rptr.2d
756, 927 P.2d 1260].)
• “In the Rowland [Rowland, supra, 69 Cal.2d at p. 113] decision, this court
identified several considerations that, when balanced together, may justify a
departure from the fundamental principle embodied in Civil Code section 1714:
‘the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the defendant’s
conduct and the injury suffered, the moral blame attached to the defendant’s
conduct, the policy of preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty to exercise
care with resulting liability for breach, and the availability, cost, and prevalence
of insurance for the risk involved.’ As we have also explained, however, in the
absence of a statutory provision establishing an exception to the general rule of
Civil Code section 1714, courts should create one only where ‘clearly supported
by public policy.’ ” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771
[122 Cal.Rptr.3d 313, 248 P.3d 1170], internal citations omitted.)
• “[T]he analysis of foreseeability for purposes of assessing the existence or scope
of a duty is different, and more general, than it is for assessing whether any such
duty was breached or whether a breach caused a plaintiff’s injuries. ‘[I]n
analyzing duty, the court’s task “ ‘ “is not to decide whether a particular
plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s
conduct, but rather to evaluate more generally whether the category of negligent
conduct at issue is sufficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed on the negligent party.” ’ ” ‘The jury,
by contrast, considers “foreseeability” in two more focused, fact-specific settings.
First, the jury may consider the likelihood or foreseeability of injury in
determining whether, in fact, the particular defendant’s conduct was negligent in
the first place. Second, foreseeability may be relevant to the jury’s determination
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of whether the defendant’s negligence was a proximate or legal cause of the
plaintiff’s injury.’ ” (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th
826, 837 [236 Cal.Rptr.3d 236], original italics, internal citation omitted.)
• “A defendant does not owe a legal duty to protect against third party conduct,
unless there exists a special relationship between the defendant and the plaintiff.
In that circumstance, ‘[i]n addition to the special relationship . . . , there must
also be evidence showing facts from which the trier of fact could reasonably
infer that the [defendant] had prior actual knowledge, and thus must have known,
of the offender’s assaultive propensities. [Citation.]’ In short, the third party’s
misconduct must be foreseeable to the defendant.” (Doe v. Los Angeles County
Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 682–683 [250
Cal.Rptr.3d 62], original italics.)
• “[T]he concept of foreseeability of risk of harm in determining whether a duty
should be imposed is to be distinguished from the concept of ‘ “foreseeability”
in two more focused, fact-specific settings’ to be resolved by a trier of fact.
‘First, the [trier of fact] may consider the likelihood or foreseeability of injury in
determining whether, in fact, the particular defendant’s conduct was negligent in
the first place. Second, foreseeability may be relevant to the [trier of fact’s]
determination of whether the defendant’s negligence was a proximate or legal
cause of the plaintiff’s injury.’ ” (Burns v. Neiman Marcus Group, Inc. (2009)
173 Cal.App.4th 479, 488, fn. 8 [93 Cal.Rptr.3d 130], internal citation omitted.)
• “By making exceptions to Civil Code section 1714’s general duty of ordinary
care only when foreseeability and policy considerations justify a categorical no-
duty rule, we preserve the crucial distinction between a determination that the
defendant owed the plaintiff no duty of ordinary care, which is for the court to
make, and a determination that the defendant did not breach the duty of ordinary
care, which in a jury trial is for the jury to make. . . . While the court deciding
duty assesses the foreseeability of injury from ‘the category of negligent conduct
at issue,’ if the defendant did owe the plaintiff a duty of ordinary care the jury
‘may consider the likelihood or foreseeability of injury in determining whether,
in fact, the particular defendant’s conduct was negligent in the first place.’ An
approach that instead focused the duty inquiry on case-specific facts would tend
to ‘eliminate the role of the jury in negligence cases, transforming the question
of whether a defendant breached the duty of care under the facts of a particular
case into a legal issue to be decided by the court . . . .’ ” (Cabral, supra, 51
Cal.4th at pp. 772–773, original italics, internal citations omitted.)
• “[W]hile foreseeability with respect to duty is determined by focusing on the
general character of the event and inquiring whether such event is ‘likely enough
in the setting of modern life that a reasonably thoughtful [person] would take
account of it in guiding practical conduct’, foreseeability in evaluating
negligence and causation requires a ‘more focused, fact-specific’ inquiry that
takes into account a particular plaintiff’s injuries and the particular defendant’s
conduct.” (Laabs v. Southern California Edison Company (2009) 175
Cal.App.4th 1260, 1273 [97 Cal.Rptr.3d 241], internal citation omitted.)
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• “The issue here is whether [defendant]—separate from other legal and practical
reasons it had to prevent injury of any kind to the public—had a tort duty to
guard against negligently causing what we and others have called ‘purely
economic loss[es].’ We use that term as a shorthand for ‘pecuniary or
commercial loss that does not arise from actionable physical, emotional or
reputational injury to persons or physical injury to property.’ And although
[defendant] of course had a tort duty to guard against the latter kinds of injury,
we conclude it had no tort duty to guard against purely economic losses.”
(Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 398 [247
Cal.Rptr.3d 632, 441 P.3d 881], internal citations omitted.)
• “[Defendant] relies on the rule that a person has no general duty to safeguard
another from harm or to rescue an injured person. But that rule has no
application where the person has caused another to be put in a position of peril
of a kind from which the injuries occurred.” (Carlsen v. Koivumaki (2014) 227
Cal.App.4th 879, 883 [174 Cal.Rptr.3d 339].)
• “A defendant may owe a duty to protect the plaintiff from third party conduct if
the defendant has a special relationship with either the plaintiff or the third
party.” (University of Southern California v. Superior Court (2018) 30
Cal.App.5th 429, 440 [241 Cal.Rptr.3d 616].)
• “ ‘Typically, in special relationships, “the plaintiff is particularly vulnerable and
dependent upon the defendant who, correspondingly, has some control over the
plaintiff’s welfare. [Citation.]” [Citation.] A defendant who is found to have a
“special relationship” with another may owe an affirmative duty to protect the
other person from foreseeable harm, or to come to the aid of another in the face
of ongoing harm or medical emergency.’ ” (Carlsen, supra, 227 Cal.App.4th at
p. 893.)
• “We agree that the same factors we discussed in Giraldo [v. Dept. of Corrections
& Rehabilitation (2008) 168 Cal.App.4th 231] apply to the relationship between
a law enforcement officer and arrestee: Once in custody, an arrestee is
vulnerable, dependent, subject to the control of the officer and unable to attend
to his or her own medical needs. Due to this special relationship, the officer
owes a duty of reasonable care to the arrestee.” (Frausto v. Dept. of California
Highway Patrol (2020) 53 Cal.App.5th 973, 993 [267 Cal.Rptr.3d 889].)
• “Generally, a greater degree of care is owed to children because of their lack of
capacity to appreciate risks and avoid danger. [Citation.] Consequently,
California courts have frequently recognized special relationships between
children and their adult caregivers that give rise to a duty to prevent harms
caused by the intentional or criminal conduct of third parties.” (Doe, supra, 8
Cal.App.5th at p. 1129, internal citations omitted.)
• “[P]ostsecondary schools do have a special relationship with students while they
are engaged in activities that are part of the school’s curriculum or closely
related to its delivery of educational services.” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 624–625 [230 Cal.Rptr.3d
415, 413 P.3d 656], original italics.)
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• “[A] university’s duty to protect students from foreseeable acts of violence is
governed by the ordinary negligence standard of care, namely ‘that degree of
care which people of ordinarily prudent behavior could be reasonably expected
to exercise under the circumstances.’ ” (Regents of University of California,
supra, 29 Cal.App.5th at p. 904.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1138, 1450–1460,
1484–1491
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.4–1.18
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.02, 1.12,
Ch. 2, Causation, § 2.02, Ch. 3, Proof of Negligence, § 3.01 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.10
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.10, 165.20
(Matthew Bender)
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401. Basic Standard of Care
Negligence is the failure to use reasonable care to prevent harm to
oneself or to others.
A person can be negligent by acting or by failing to act. A person is
negligent if that person does something that a reasonably careful person
would not do in the same situation or fails to do something that a
reasonably careful person would do in the same situation.
You must decide how a reasonably careful person would have acted in
[name of plaintiff/defendant]’s situation.
New September 2003; Revised May 2020
Sources and Authority
• “The formulation of the standard of care is a question of law for the court. Once
the court has formulated the standard, its application to the facts of the case is a
task for the trier of fact if reasonable minds might differ as to whether a party’s
conduct has conformed to the standard.” (Ramirez v. Plough, Inc (1993) 6
Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167], internal citations omitted.)
• Restatement Second of Torts, section 282, defines negligence as “conduct which
falls below the standard established by law for the protection of others against
unreasonable risk of harm.”
• Restatement Second of Torts, section 283, provides: “Unless the actor is a child,
the standard of conduct to which he must conform to avoid being negligent is
that of a reasonable man under like circumstances.”
• The California Supreme Court has stated: “Because application of [due care] is
inherently situational, the amount of care deemed reasonable in any particular
case will vary, while at the same time the standard of conduct itself remains
constant, i.e., due care commensurate with the risk posed by the conduct taking
into consideration all relevant circumstances. [Citations].” (Flowers v. Torrance
Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d
685, 884 P.2d 142]; see also Tucker v. Lombardo (1956) 47 Cal.2d 457, 464 [303
P.2d 1041].)
• The proper conduct of a reasonable person in a particular situation may become
settled by judicial decision or may be established by statute or administrative
regulation. (Ramirez, supra, 6 Cal.4th at p. 547.) (See CACI Nos. 418 to 421 on
negligence per se.)
• Negligence can be found in the doing of an act, as well as in the failure to do an
act. (Rest.2d Torts, § 284.)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 998, 999
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.3
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.01, 1.02,
1.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.31 (Matthew
Bender)
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402. Standard of Care for Minors
[Name of plaintiff/defendant] is a child who was years old at the
time of the incident. Children are not held to the same standards of
behavior as adults. A child is required to use the amount of care that a
reasonably careful child of the same age, intelligence, knowledge, and
experience would use in that same situation.
New September 2003
Sources and Authority
• “Children are judged by a special subjective standard. . . . They are only
required to exercise that degree of care expected of children of like age,
experience and intelligence.” (Daun v. Truax (1961) 56 Cal.2d 647, 654 [16
Cal.Rptr. 351, 365 P.2d 407].)
• If the negligence is negligence per se, violation of a statute will create a
presumption of negligence that “may be rebutted by a showing that the child, in
spite of the violation of the statute, exercised the care that children of his
maturity, intelligence and capacity ordinarily exercise under similar
circumstances.” (Daun, supra, 56 Cal.2d at p. 655.)
• Restatement Second of Torts, section 283A, provides: “If the actor is a child, the
standard of conduct to which he must conform to avoid being negligent is that
of a reasonable person of like age, intelligence, and experience under like
circumstances.”
• The standard of care for minors is not the standard of an “average” child of the
same age; the standard is subjective, based on the conduct of a child of the same
age, intelligence, and experience as the minor plaintiff or defendant. (Cummings
v. County of Los Angeles (1961) 56 Cal.2d 258, 263 [14 Cal.Rptr. 668, 363 P.2d
900].)
• An exception to this reduced standard of care may be found if the minor was
engaging in an adult activity, such as driving. (Prichard v. Veterans Cab Co.
(1965) 63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360]; Neudeck v.
Bransten (1965) 233 Cal.App.2d 17, 21 [43 Cal.Rptr. 250]; see also Rest.2d
Torts, § 283A, com. c.)
• Children under the age of five are incapable of contributory negligence as a
matter of law. (Christian v. Goodwin (1961) 188 Cal.App.2d 650, 655 [10
Cal.Rptr. 507].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1132–1134
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.19
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.31
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(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.121, 165.190
(Matthew Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors (Matthew Bender)
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403. Standard of Care for Physically Disabled Person
A person with a physical disability is required to use the amount of care
that a reasonably careful person who has the same physical disability
would use in the same situation.
New September 2003
Directions for Use
By “same” disability, this instruction is referring to the effect of the disability, not
the cause.
Sources and Authority
• Liability of Person of “Unsound Mind.” Civil Code section 41.
• Restatement Second of Torts, section 283C, provides: “If the actor is ill or
otherwise physically disabled, the standard of conduct to which he must conform
to avoid being negligent is that of a reasonable man under like disability.” (See
also Conjorsky v. Murray (1955) 135 Cal.App.2d 478, 482 [287 P.2d 505]; Jones
v. Bayley (1942) 49 Cal.App.2d 647, 654 [122 P.2d 293].)
• Persons with mental illnesses are not covered by the same standard as persons
with physical illnesses. (See Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 1323
[53 Cal.Rptr.2d 635].)
• Restatement Second of Torts, section 283B, provides: “Unless the actor is a
child, his insanity or other mental deficiency does not relieve the actor from
liability for conduct which does not conform to the standard of a reasonable man
under like circumstances.”
• As to contributory negligence, the courts agree with the Restatement’s position
that mental deficiency that falls short of insanity does not excuse conduct that is
otherwise contributory negligence. (Fox v. City and County of San Francisco
(1975) 47 Cal.App.3d 164, 169 [120 Cal.Rptr. 779]; Rest.2d Torts, § 464, com.
g.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.20
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
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404. Intoxication
A person is not necessarily negligent just because that person used
alcohol [or drugs]. However, people who drink alcohol [or take drugs]
must act just as carefully as those who do not.
New September 2003; Revised May 2020
Directions for Use
This instruction should be given only if there is evidence of alcohol or drug
consumption. This instruction is not intended for situations in which intoxication is
grounds for a negligence per se instruction (e.g., driving under the influence).
Sources and Authority
• Mere consumption of alcohol is not negligence in and of itself: “The fact that a
person when injured was intoxicated is not in itself evidence of contributory
negligence, but it is a circumstance to be considered in determining whether his
intoxication contributed to his injury.” (Coakley v. Ajuria (1930) 209 Cal. 745,
752 [290 P. 33].)
• Intoxication is not generally an excuse for failure to comply with the reasonable-
person standard. (Cloud v. Market Street Railway Co. (1946) 74 Cal.App.2d 92,
97 [168 P.2d 191].)
• Intoxication is not negligence as a matter of law, but it is a circumstance for the
jury to consider in determining whether such intoxication was a contributing
cause of an injury and is also a question of fact for the jury. (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 217 [57 Cal.Rptr. 319]; Barr v. Scott (1955) 134
Cal.App.2d 823, 827–828 [286 P.2d 552]; see also Emery v. Los Angeles Ry.
Corp. (1943) 61 Cal.App.2d 455, 461 [143 P.2d 112].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1477
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, §§ 20.02, 20.04 (Matthew
Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
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405. Comparative Fault of Plaintiff
[Name of defendant] claims that [name of plaintiff]’s own negligence
contributed to [his/her/nonbinary pronoun] harm. To succeed on this
claim, [name of defendant] must prove both of the following:
1. That [name of plaintiff] was negligent; and
2. That [name of plaintiff]’s negligence was a substantial factor in
causing [his/her/nonbinary pronoun] harm.
If [name of defendant] proves the above, [name of plaintiff]’s damages are
reduced by your determination of the percentage of [name of plaintiff]’s
responsibility. I will calculate the actual reduction.
New September 2003; Revised December 2009
Directions for Use
This instruction should not be given absent substantial evidence that plaintiff was
negligent. (Drust v. Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr. 750].)
If there are multiple defendants or alleged nondefendant tortfeasors, also give CACI
No. 406, Apportionment of Responsibility.
Sources and Authority
• “[W]e conclude that: . . . The doctrine of comparative negligence is preferable
to the ‘all-or-nothing’ doctrine of contributory negligence from the point of view
of logic, practical experience, and fundamental justice; . . . .” (Li v. Yellow Cab
Co. (1975) 13 Cal.3d 804, 808 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “The comparative fault doctrine ‘is designed to permit the trier of fact to
consider all relevant criteria in apportioning liability. The doctrine “is a flexible,
commonsense concept, under which a jury properly may consider and evaluate
the relative responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or other theories
of responsibility), in order to arrive at an “equitable apportionment or allocation
of loss.’ [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270,
1285 [164 Cal.Rptr.3d 112].)
• “Where contributory negligence is asserted as a defense, and where there is
‘some evidence of a substantial character’ to support a finding that such
negligence occurred, it is prejudicial error to refuse an instruction on this issue,
since defendant is thereby denied a basic theory of his defense.” (Hasson v. Ford
Motor Co. (1977) 19 Cal.3d 530, 548 [138 Cal.Rptr. 705, 564 P.2d 857].)
• “The use by the trial court of the phrase ‘contributory negligence’ in instructing
‘on the concept of comparative negligence is innocuous. Li v. Yellow Cab Co.
[citation] abolished the legal doctrine, but not the phrase or the concept of
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‘contributory negligence.’ A claimant’s negligence contributing causally to his
own injury may be considered now not as a bar to his recovery, but merely as a
factor to be considered in measuring the amount thereof.” (Bradfield v. Trans
World Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr. 172].)
• “Generally, a defendant has the burden of establishing that some nonzero
percentage of fault is properly attributed to the plaintiff, other defendants, or
nonparties to the action.” (Pfeifer, supra, 220 Cal.App.4th at p. 1285.)
• “[W]ithin the comparative fault system, when an employer is liable solely on a
theory of respondeat superior, ‘the employer’s share of liability for the plaintiff’s
damages corresponds to the share of fault that the jury allocates to the
employee.’ ” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1261
[218 Cal.Rptr.3d 664].)
• “[P]retreatment negligence by the patient does not warrant a jury instruction on
contributory or comparative negligence. This view is supported by comment m
to section 7 of the Restatement Third of Torts: Apportionment of Liability, which
states: ‘[I]n a case involving negligent rendition of a service, including medical
services, a factfinder does not consider any plaintiff’s conduct that created the
condition the service was employed to remedy.’ ” (Harb v. City of Bakersfield
(2015) 233 Cal.App.4th 606, 632 [183 Cal.Rptr.3d 59].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1138, 1450–1460,
1484–1491
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.41–1.45
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.04 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.170
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.380 (Matthew
Bender)
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406. Apportionment of Responsibility
[[Name of defendant] claims that the [negligence/fault] of [insert name(s)
or description(s) of nonparty tortfeasor(s)] [also] contributed to [name of
plaintiff]’s harm. To succeed on this claim, [name of defendant] must
prove both of the following:
1. That [insert name(s) or description(s) of nonparty tortfeasor(s)]
[was/were] [negligent/at fault]; and
2. That the [negligence/fault] of [insert name(s) or description(s) of
nonparty tortfeasor(s)] was a substantial factor in causing [name of
plaintiff]’s harm.]
If you find that the [negligence/fault] of more than one person including
[name of defendant] [and] [[name of plaintiff]/ [and] [name(s) or
description(s) of nonparty tortfeasor(s)]] was a substantial factor in causing
[name of plaintiff]’s harm, you must then decide how much responsibility
each has by assigning percentages of responsibility to each person listed
on the verdict form. The percentages must total 100 percent.
You will make a separate finding of [name of plaintiff]’s total damages, if
any. In determining an amount of damages, you should not consider any
person’s assigned percentage of responsibility.
[“Person” can mean an individual or a business entity.]
New September 2003; Revised June 2006, December 2007, December 2009, June
2011
Directions for Use
This instruction is designed to assist the jury in completing CACI No. VF-402,
Negligence—Fault of Plaintiff and Others at Issue, which must be given in a
multiple-tortfeasor case to determine comparative fault. VF-402 is designed to
compare the conduct of all defendants, the conduct of the plaintiff, and the conduct
of any nonparty tortfeasors.
Throughout, select “fault” if there is a need to allocate responsibility between
tortfeasors whose alleged liability is based on conduct other than negligence, e.g.,
strict products liability.
Include the first paragraph if the defendant has presented evidence that the conduct
of one or more nonparties contributed to the plaintiff’s harm. (See Stewart v. Union
Carbide Corp. (2010) 190 Cal.App.4th 23, 33 [117 Cal.Rptr.3d 791] [defendant has
burden to establish concurrent or alternate causes].) “Nonparties” include the
universe of tortfeasors who are not present at trial, including defendants who settled
before trial and nonjoined alleged tortfeasors. (Dafonte v. Up-Right (1992) 2 Cal.4th
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593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140].) Include “also” if the defendant
concedes some degree of liability.
If the plaintiff’s comparative fault is also at issue, give CACI No. 405, Comparative
Fault of Plaintiff, in addition to this instruction.
Include the last paragraph if any of the defendants or others alleged to have
contributed to the plaintiff’s harm is not an individual.
Sources and Authority
• Proposition 51. Civil Code section 1431.2.
• “[W]e hold that after Li, a concurrent tortfeasor whose negligence is a proximate
cause of an indivisible injury remains liable for the total amount of damages,
diminished only ‘in proportion to the amount of negligence attributable to the
person recovering.’ ” (American Motorcycle Assn. v. Superior Court (1978) 20
Cal.3d 578, 590 [146 Cal.Rptr. 182, 578 P.2d 899], citing Li v. Yellow Cab Co.
(1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “In light of Li, however, we think that the long-recognized common law
equitable indemnity doctrine should be modified to permit, in appropriate cases,
a right of partial indemnity, under which liability among multiple tortfeasors may
be apportioned on a comparative negligence basis. . . . Such a doctrine
conforms to Li’s objective of establishing ‘a system under which liability for
damage will be borne by those whose negligence caused it in direct proportion
to their respective fault.’ ” (American Motorcycle Assn., supra, 20 Cal.3d at p.
583.)
• “[W]e hold that section 1431.2, subdivision (a), does not authorize a reduction in
the liability of intentional tortfeasors for noneconomic damages based on the
extent to which the negligence of other actors—including the plaintiffs, any
codefendants, injured parties, and nonparties—contributed to the injuries in
question.” (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 29 [267
Cal.Rptr.3d 203, 471 P.3d 329].)
• “The comparative fault doctrine ‘is designed to permit the trier of fact to
consider all relevant criteria in apportioning liability. The doctrine “is a flexible,
commonsense concept, under which a jury properly may consider and evaluate
the relative responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or other theories
of responsibility), in order to arrive at an ‘equitable apportionment or allocation
of loss.’” [Citation.]’” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270,
1285 [164 Cal.Rptr.3d 112].)
• “[A] ‘defendant[’s]’ liability for noneconomic damages cannot exceed his or her
proportionate share of fault as compared with all fault responsible for the
plaintiff’s injuries, not merely that of ‘defendant[s]’ present in the lawsuit.”
(Dafonte, supra, 2 Cal.4th at p. 603, original italics.)
• “The proposition that a jury may apportion liability to a nonparty has been
adopted in the Judicial Council of California Civil Jury Instructions (CACI)
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special verdict form applicable to negligence cases. (See CACI Verdict Form 402
and CACI Instruction No. 406 [‘[Verdict Form] 402 is designed to compare the
conduct of all defendants, the conduct of the plaintiff, and the conduct of any
nonparty tortfeasors. [¶] . . . [¶] . . . “Nonparties” include the universe of
tortfeasors who are not present at trial, including defendants who settled before
trial and nonjoined alleged tortfeasors.’].” (Vollaro v. Lispi (2014) 224
Cal.App.4th 93, 100 fn. 5 [168 Cal.Rptr.3d 323], internal citation omitted.)
• “[U]nder Proposition 51, fault will be allocated to an entity that is immune from
paying for its tortious acts, but will not be allocated to an entity that is not a
tortfeasor, that is, one whose actions have been declared not to be tortious.”
(Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, 1071 [6 Cal.Rptr.3d
695], original italics.)
• “A defendant bears the burden of proving affirmative defenses and indemnity
cross-claims. Apportionment of noneconomic damages is a form of equitable
indemnity in which a defendant may reduce his or her damages by establishing
others are also at fault for the plaintiff’s injuries. Placing the burden on
defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly
onerous.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 [129 Cal.Rptr.2d
336].)
• “[T]here must be substantial evidence that a nonparty is at fault before damages
can be apportioned to that nonparty.” (Scott v. C. R. Bard, Inc. (2014) 231
Cal.App.4th 763, 785 [180 Cal.Rptr.3d 479].)
• “When a defendant is liable only by reason of a derivative nondelegable duty
arising from his status as employer or landlord or vehicle owner or
coconspirator, or from his role in the chain of distribution of a single product in
a products liability action, his liability is secondary (vicarious) to that of the
actor and he is not entitled to the benefits of Proposition 51.” (Bayer-Bel v.
Litovsky (2008) 159 Cal.App.4th 396, 400 [71 Cal.Rptr.3d 518], original italics,
internal citations omitted.)
• “Under the doctrine of strict products liability, all defendants in the chain of
distribution are jointly and severally liable, meaning that each defendant can be
held liable to the plaintiff for all damages the defective product caused.”
(Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1010 [169
Cal.Rptr.3d 208].)
• Proposition 51 does not apply in a strict products liability action when a single
defective product produced a single injury to the plaintiff. That is, all the
defendants in the stream of commerce of that single product remain jointly and
severally liable. . . . [I]n strict products liability asbestos exposure actions, . . .
Proposition 51 applies when there are multiple products that caused the
plaintiff’s injuries and there is evidence that provides a basis to allocate fault for
noneconomic damages between the defective products.” (Romine, supra, 224
Cal.App.4th at pp. 1011–1012, internal citations omitted.)
• “[T]he jury found that defendants are parties to a joint venture. The incidents of
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a joint venture are in all important respects the same as those of a partnership.
One such incident of partnership is that all partners are jointly and severally
liable for partnership obligations, irrespective of their individual partnership
interests. Because joint and several liability arises from the partnership or joint
venture, Civil Code section 1431.2 is not applicable.” (Myrick v. Mastagni
(2010) 185 Cal.App.4th 1082, 1091 [111 Cal.Rptr.3d 165], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 156, 158–163, 167,
168, 171, 172, 176
Haning et al., California Practice Guide: Personal Injury, Ch. 9-M, Verdicts And
Judgment, ¶ 9:662.3 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.52–1.59
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, §§ 4.04–4.03, 4.07–4.08 (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.03
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.14A, Ch. 9, Damages, § 9.01 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.61 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.04
et seq. (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.284, 165.380
(Matthew Bender)
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407. Comparative Fault of Decedent
[Name of defendant] claims that [name of decedent]’s own negligence
contributed to [his/her/nonbinary pronoun] death. To succeed on this
claim, [name of defendant] must prove both of the following:
1. That [name of decedent] was negligent; and
2. That [name of decedent]’s negligence was a substantial factor in
causing [his/her/nonbinary pronoun] death.
If [name of defendant] proves the above, [name of plaintiff]’s damages are
reduced by your determination of the percentage of [name of decedent]’s
responsibility. I will calculate the actual reduction.
New September 2003; Revised December 2009
Directions for Use
This instruction should not be given absent evidence that the decedent was
negligent. (Drust v. Drust (1980) 113 Cal.App.3d 1, 6 [169 Cal.Rptr. 750].)
Sources and Authority
• “[P]rinciples of comparative fault and equitable indemnification support an
apportionment of liability among those responsible for the loss, including the
decedent, whether it be for personal injury or wrongful death.” (Horwich v.
Superior Court (1999) 21 Cal.4th 272, 285 [87 Cal.Rptr.2d 222, 980 P.2d 927].)
• “[I]n wrongful death actions, the fault of the decedent is attributable to the
surviving heirs whose recovery must be offset by the same percentage.
[Citation.]” (Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1395 [273
Cal.Rptr. 231].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1560
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.07 (Matthew Bender)
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, § 55.05
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 181, Death and Survival Actions,
§ 181.12 (Matthew Bender)
6 California Points and Authorities, Ch. 66, Death and Survival Actions, § 66.20 et
seq. (Matthew Bender)
408–410. Reserved for Future Use
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411. Reliance on Good Conduct of Others
Every person has a right to expect that every other person will use
reasonable care [and will not violate the law], unless that person knows,
or should know, that the other person will not use reasonable care [or
will violate the law].
New September 2003; Revised May 2020
Directions for Use
This instruction should not be used if the only other actor is the plaintiff and there
is no evidence that the plaintiff acted unreasonably. (Springer v. Reimers (1970) 4
Cal.App.3d 325, 336 [84 Cal.Rptr. 486].)
Sources and Authority
• “[E]very person has a right to presume that every other person will perform his
duty and obey the law and in the absence of reasonable grounds to think
otherwise, it is not negligence to assume that he is not exposed to danger which
could come to him only from violation of law or duty by such other person.”
(Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 523 [105
Cal.Rptr. 904].)
• “However, this rule does not extend to a person who is not exercising ordinary
care, nor to one who knows or, by the exercise of such care, would know that
the law is not being observed.” (Malone v. Perryman (1964) 226 Cal.App.2d
227, 234 [37 Cal.Rptr. 864].)
• “[CACI No. 411] is a pattern jury instruction designed for use in civil
negligence cases involving a plaintiff suing a defendant for failing to prevent
harm caused by a third party. The principle it espouses is essentially that a
defendant will not be liable for harm caused by a third party’s negligent or
criminal conduct, unless the third party’s conduct was foreseeable . . . .” (People
v. Elder (2017) 11 Cal.App.5th 123, 135 [217 Cal.Rptr.3d 493].)
• “[Defendant], if exercising ordinary care himself, was entitled to assume that
plaintiff’s employer had furnished to plaintiff a safe place within which to work
and he could further assume that the plaintiff would reasonably use the
protection afforded to him by the employer.” (Tucker v. Lombardo (1956) 47
Cal.2d 457, 467 [303 P.2d 1041] [approved language in jury instruction].)
• “If there is evidence on both sides of the question as to whether the conduct of a
third person is or is not foreseeable, the jury instruction is correct. Its application
or effect will depend on the finding of the jury as to whether the act of the third
person should have been anticipated or foreseen.” (Whitton v. State of California
(1979) 98 Cal.App.3d 235, 246 [159 Cal.Rptr. 405].)
• “If the likelihood that a third person may act in a particular manner is the hazard
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or one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortious, or criminal does not prevent the actor
from being liable for harm caused thereby.” (Bigbee v. Pacific Telephone and
Telegraph Co. (1983) 34 Cal.3d 49, 58 [192 Cal.Rptr. 857, 665 P.2d 947]; see
also Rest.2d Torts, § 449.)
• “Foreseeability, when analyzed to determine the existence or scope of a duty, is
a question of law to be decided by the court.” (Ann M. v. Pacific Plaza Shopping
Center (1993) 6 Cal.4th 666, 678 [25 Cal.Rptr.2d 137, 863 P.2d 207],
disapproved on other grounds in Reid v. Google Inc. (2010) 50 Cal.4th 512, 527
fn. 5 [113 Cal.Rptr.3d 327, 235 P.3d 988].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1468–1470
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.02 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, §§ 90.88, 90.90 (Matthew
Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.51
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.120 et seq.
(Matthew Bender)
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412. Duty of Care Owed Children
An adult must anticipate the ordinary behavior of children. An adult
must be more careful when dealing with children than with other adults.
New September 2003
Directions for Use
This instruction is to be used where the plaintiff seeks damages for injury to a
minor.
For standard of care for minors, see CACI No. 402, Standard of Care for Minors.
Sources and Authority
• “ ‘A child of immature years is expected to exercise only such care as pertains to
childhood, and all persons dealing with such a child are chargeable with such
knowledge. As a result, one dealing with children is bound to exercise a greater
amount of caution than he would were he dealing with an adult.’ [Citations].”
(Kataoka v. May Dept. Stores Co. (1943) 60 Cal.App.2d 177, 182–183 [140 P.2d
467].)
• Schwartz v. Helms Bakery, Ltd. (1967) 67 Cal.2d 232, 240, 243 [60 Cal.Rptr.
510, 430 P.2d 68]; Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 37 [286 P.2d
21].
• “A greater degree of care is generally owed to children because of their lack of
capacity to appreciate risks and to avoid danger.” (McDaniel v. Sunset Manor
Co. (1990) 220 Cal.App.3d 1, 7 [269 Cal.Rptr. 196], citing Casas v. Maulhardt
Buick, Inc. (1968) 258 Cal.App.2d 692, 697–700 [66 Cal.Rptr. 44].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1136, 1137
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.19
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.31 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.88 (Matthew Bender)
California Products Liability Actions, Ch. 10, Trial, § 10.05 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 364, Minors (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.120 (Matthew
Bender)
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413. Custom or Practice
You may consider customs or practices in the community in deciding
whether [name of plaintiff/defendant] acted reasonably. Customs and
practices do not necessarily determine what a reasonable person would
have done in [name of plaintiff/defendant]’s situation. They are only
factors for you to consider.
Following a custom or practice does not excuse conduct that is
unreasonable. You should consider whether the custom or practice itself
is reasonable.
New September 2003
Directions for Use
An instruction stating that evidence of custom is not controlling on the issue of
standard of care should not be given in professional malpractice cases in which
expert testimony is used to set the standard of care. (See Osborn v. Irwin Memorial
Blood Bank (1992) 5 Cal.App.4th 234, 277 [7 Cal.Rptr.2d 101].) The instruction
may be used if the standard of care is within common knowledge. (See Leonard v.
Watsonville Community Hospital (1956) 47 Cal.2d 509, 519 [305 P.2d 36].)
This instruction is also inappropriate in cases involving strict liability (Titus v.
Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372, 378 [154 Cal.Rptr. 122]) or cases
involving negligence in the use of public roads (Shuff v. Irwindale Trucking Co.
(1976) 62 Cal.App.3d 180, 187 [132 Cal.Rptr. 897]).
Sources and Authority
• Evidence of custom and practice is relevant, but not conclusive, on the issue of
the standard of care in cases of ordinary negligence. (Holt v. Department of
Food and Agriculture (1985) 171 Cal.App.3d 427, 435 [218 Cal.Rptr. 1].)
• Restatement Second of Torts, section 295A, provides: “In determining whether
conduct is negligent, the customs of the community, or of others under like
circumstances, are factors to be taken into account, but are not controlling where
a reasonable man would not follow them.”
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1029, 1030
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.30, Ch. 3, Proof of
Negligence, § 3.33 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.11, 2.21 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
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16 California Points and Authorities, Ch. 165, Negligence, § 165.31 (Matthew
Bender)
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414. Amount of Caution Required in Dangerous Situations
People must be extremely careful when they deal with dangerous items
or participate in dangerous activities. [Insert type of dangerous item or
activity] is dangerous in and of itself. The risk of harm is so great that
the failure to use extreme caution is negligence.
New September 2003; Revised May 2020
Directions for Use
An instruction on the standard of care for extremely dangerous activities is proper
only “in situations where the nature of the activity or substance is so inherently
dangerous or complex, as such, that the hazard persists despite the exercise of
ordinary care.” (Benwell v. Dean (1964) 227 Cal.App.2d 226, 233 [38 Cal.Rptr.
542]; see also Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 544 [67
Cal.Rptr. 775, 439 P.2d 903].)
This instruction should not be given at the same time as an instruction pertaining to
standard of care for employees who have to work in dangerous situations. In
appropriate cases, juries may be instructed that a person of ordinary prudence is
required to exercise extreme caution when engaged in a dangerous activity.
(Borenkraut v. Whitten (1961) 56 Cal.2d 538, 544–546 [15 Cal.Rptr. 635, 364 P.2d
467].) However, this rule does not apply when a person’s lawful employment
requires that person to work in a dangerous situation. (McDonald v. City of Oakland
(1967) 255 Cal.App.2d 816, 827 [63 Cal.Rptr. 593].) This is because “reasonable
[employees] who are paid to give at least part of their attention to their job” may
not be as able to maintain the same standards for personal safety as nonemployees.
(Young v. Aro Corp. (1974) 36 Cal.App.3d 240, 245 [111 Cal.Rptr. 535].) (See
CACI No. 415, Employee Required to Work in Dangerous Situations.)
Sources and Authority
• Even a slight deviation from the standards of care will constitute negligence in
cases involving dangerous instrumentalities. (Borenkraut, supra, 56 Cal.2d at p.
545.)
• Dangerous instrumentalities include fire, firearms, explosive or highly
inflammable materials, and corrosive or otherwise dangerous or noxious fluids.
(Warner v. Santa Catalina Island Co. (1955) 44 Cal.2d 310, 317 [282 P.2d 12].)
• In Menchaca, the Court held that “[d]riving a motor vehicle may be sufficiently
dangerous to warrant special instructions, but it is not so hazardous that it
always requires ‘extreme caution.’ ” (Menchaca, supra, 68 Cal.2d at p. 544.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1050–1054
1 Levy et al., California Torts, Ch. 1, Negligence, §§ 1.02, 1.30 (Matthew Bender)
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California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.14
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence (Matthew Bender)
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415. Employee Required to Work in Dangerous Situations
An employee required to work under dangerous conditions must use the
amount of care for [his/her/nonbinary pronoun] own safety that a
reasonably careful employee would use under the same conditions.
In deciding whether [name of plaintiff] was negligent, you should consider
how much attention [his/her/nonbinary pronoun] work demanded. You
should also consider whether [name of plaintiff]’s job required [him/her/
nonbinary pronoun] to take risks that a reasonably careful person would
not normally take under ordinary circumstances.
New September 2003
Directions for Use
This type of instruction should not be given in cases involving freeway collisions
between private and commercial vehicles. (Shuff v. Irwindale Trucking Co. (1976)
62 Cal.App.3d 180, 187 [132 Cal.Rptr. 897].)
An instruction on this principle is “aimed at situations where the employment
conditions lessen the plaintiff’s ability to take precautions.” (Von Beltz v. Stuntman,
Inc. (1989) 207 Cal.App.3d 1467, 1485 [255 Cal.Rptr. 755].) It does not apply
where the plaintiff has ample opportunity to consider various precautions (ibid.) or
when employees act pursuant to choice rather than necessity. (Roberts v. Guillory
(1972) 25 Cal.App.3d 859, 861–862].)
Sources and Authority
• This type of instruction “soften[ed] the impact of instructing on the issue of
contributory negligence” (Young v. Aro Corp. (1974) 36 Cal.App.3d 240, 244
[111 Cal.Rptr. 535]) at a time when contributory negligence was a complete bar
to a plaintiff’s recovery. The instruction may be given in cases involving
comparative fault. (See, e.g., Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123,
136–137 [1 Cal.Rptr.2d 747].)
• “It has long been recognized that ‘where a person must work in a position of
possible danger the amount of care which he is bound to exercise for his own
safety may well be less by reason of the necessity of his giving attention to his
work than would otherwise be the case.’ [Citations].” (Austin v. Riverside
Portland Cement Co. (1955) 44 Cal.2d 225, 239 [282 P.2d 69].)
• “Considered in the light of the realities of his working life, the laborer’s duty
may become considerably restricted in scope. In some instances he may find
himself powerless to abandon the task at hand with impunity whenever he senses
a possible danger; in others, he may be uncertain as to which person has
supervision of the job or control of the place of employment, and therefore
unsure as to whom he should direct his complaint; in still others, having been
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encouraged to continue working under conditions where danger lurks but has not
materialized, he may be baffled in making an on-the-spot decision as to the
imminence of harm. All of these factors enter into a determination whether his
conduct falls below a standard of due care.” (Gyerman v. United States Lines
Co. (1972) 7 Cal.3d 488, 501 [102 Cal.Rptr. 795, 498 P.2d 1043], citation
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1484
2 Wilcox, California Employment Law, Ch. 30, Employer’s Tort Liability to Third
Parties for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.14 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.172
(Matthew Bender)
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416. Amount of Caution Required in Transmitting Electric Power
People and companies must be very careful in constructing, insulating,
inspecting, maintaining, and repairing power lines and transmission
equipment at all places where it is reasonably probable that they will
cause harm to persons or property.
New September 2003
Directions for Use
The cases have crafted a specific standard of care for the construction and
maintenance of power lines, and juries must be instructed on this standard upon
request. (Scally v. Pacific Gas and Electric Co. (1972) 23 Cal.App.3d 806, 816 [100
Cal.Rptr. 501].)
Sources and Authority
• Electric power lines are considered dangerous instrumentalities. (Polk v. City of
Los Angeles (1945) 26 Cal.2d 519, 525 [159 P.2d 931].)
• The requirement to insulate wires applies to only those wires that may come into
contact with people or property: “While an electric company is not under an
absolute duty to insulate or make the wires safe in any particular manner, it does
have a duty to make the wires safe under all the exigencies created by the
surrounding circumstances. The duty of an electric company is alternative, i.e.,
either to insulate the wires or to so locate them to make them comparatively
harmless.” (Scally, supra, 23 Cal.App.3d at pp. 815–816.)
• Dunn v. Pacific Gas and Electric Co. (1954) 43 Cal.2d 265, 272–274 [272 P.2d
745]; McKenzie v. Pacific Gas & Electric Co. (1962) 200 Cal.App.2d 731, 736
[19 Cal.Rptr. 628] (disapproved on another ground in Di Mare v. Cresci (1962)
58 Cal.2d 292, 299 [23 Cal.Rptr. 772, 373 P.2d 860].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1051
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 7.1–7.12
23 California Forms of Pleading and Practice, Ch. 277, Gas and Electricity
(Matthew Bender)
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417. Special Doctrines: Res ipsa loquitur
[Name of plaintiff] may prove that [name of defendant]’s negligence caused
[his/her/nonbinary pronoun] harm if [he/she/nonbinary pronoun] proves all
of the following:
1. That [name of plaintiff]’s harm ordinarily would not have
happened unless someone was negligent;
2. That the harm was caused by something that only [name of
defendant] controlled; and
3. That [name of plaintiff]’s voluntary actions did not cause or
contribute to the event[s] that harmed [him/her/nonbinary
pronoun].
If you decide that [name of plaintiff] did not prove one or more of these
three things, you must decide whether [name of defendant] was negligent
in light of the other instructions I have read.
If you decide that [name of plaintiff] proved all of these three things, you
may, but are not required to, find that [name of defendant] was negligent
or that [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm, or both.
[Name of defendant] contends that [he/she/nonbinary pronoun/it] was not
negligent or that [his/her/nonbinary pronoun/its] negligence, if any, did not
cause [name of plaintiff] harm. If after weighing all of the evidence, you
believe that it is more probable than not that [name of defendant] was
negligent and that [his/her/nonbinary pronoun] negligence was a
substantial factor in causing [name of plaintiff]’s harm, you must decide
in favor of [name of plaintiff]. Otherwise, you must decide in favor of
[name of defendant].
New September 2003; Revised June 2011, December 2011
Directions for Use
The first paragraph of this instruction sets forth the three elements of res ipsa
loquitur. The second paragraph explains that if the plaintiff fails to establish res ipsa
loquitur as a presumption, the jury may still find for the plaintiff if it finds based on
its consideration of all of the evidence that the defendant was negligent. (See Howe
v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163–1164 [117
Cal.Rptr.3d 126].)
If the plaintiff has established the three conditions that give rise to the doctrine, the
jury is required to find that the accident resulted from the defendant’s negligence
unless the defendant comes forward with evidence that would support a contrary
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finding. (See Cal. Law Revision Com. com. to Evid. Code, § 646.) The last two
paragraphs of the instruction assume that the defendant has presented evidence that
would support a finding that the defendant was not negligent or that any negligence
on the defendant’s part was not a proximate cause of the accident. In this case, the
presumption drops out, and the plaintiff must then prove the elements of negligence
without the benefit of the presumption of res ipsa loquitur. (See Howe, supra, 189
Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res Ipsa Loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption arises
when the evidence satisfies three conditions: ‘(1) the accident must be of a kind
which ordinarily does not occur in the absence of someone’s negligence; (2) it
must be caused by an agency or instrumentality within the exclusive control of
the defendant; (3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.’ A presumption affecting the burden of
producing evidence ‘require[s] the trier of fact to assume the existence of the
presumed fact’ unless the defendant introduces evidence to the contrary. The
presumed fact, in this context, is that ‘a proximate cause of the occurrence was
some negligent conduct on the part of the defendant . . . .’ If the defendant
introduces ‘evidence which would support a finding that he was not negligent or
that any negligence on his part was not a proximate cause of the occurrence,’ the
trier of fact determines whether defendant was negligent without regard to the
presumption, simply by weighing the evidence.” (Brown v. Poway Unified School
Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679, 843 P.2d 624], internal
citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was the
result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161,
internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
negligence from the happening of the accident.” (Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
• “All of the cases hold, in effect, that it must appear, either as a matter of
common experience or from evidence in the case, that the accident is of a type
which probably would not happen unless someone was negligent.” (Zentz v.
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Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442–443 [247 P.2d
344].)
• The purpose of the second “control” requirement is to “link the defendant with
the probability, already established, that the accident was negligently caused.”
(Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d
33].)
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintiff need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” (Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of negligence
or lack of proximate cause that the injury claimed was the result of that
negligence. As a presumption affecting the burden of producing evidence (as
distinguished from a presumption affecting the burden of proof), if evidence is
presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of the
accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of the
presumed fact causes the presumption, as a matter of law, to disappear.’ When
the presumptive effect vanishes, it is the plaintiff’s burden to introduce actual
evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
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jury may be instructed that, even though it does not find that the facts giving rise
to the presumption have been proved by a preponderance of the evidence, it may
nevertheless find the defendant negligent if it concludes from a consideration of
all the evidence that it is more probable than not that the defendant was
negligent.’ ” (Howe, supra, 189 Cal.App.4th at p. 1163, internal citation
omitted.)
• “It follows that where part of the facts basic to the application of the doctrine of
res ipsa loquitur is established as a matter of law but that others are not, the
court should instruct that application of the doctrine by the jury depends only
upon the existence of the basic facts not conclusively established.” (Rimmele v.
Northridge Hospital Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr.
39].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§§ 116–120
7 Witkin, California Procedure (5th ed. 2008) Trial, § 300
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-G, Inability To
Prove Negligence Or Causation—Res Ipsa Loquitur, “Alternative Liability” And
“Market Share Liability”, ¶¶ 2:1751–2:1753 (The Rutter Group)
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.20 et seq. (Matthew
Bender)
1A California Trial Guide, Unit 11, Opening Statement, § 11.42, Unit 90, Closing
Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.11
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.340 et seq.
(Matthew Bender)
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418. Presumption of Negligence per se
[Insert citation to statute, regulation, or ordinance] states:
.
If [name of plaintiff/defendant] proves
1. That [name of defendant/plaintiff] violated this law and
2. That the violation was a substantial factor in bringing about the
harm,
then you must find that [name of defendant/plaintiff] was negligent [unless
you also find that the violation was excused].
If you find that [name of defendant/plaintiff] did not violate this law or
that the violation was not a substantial factor in bringing about the
harm [or if you find the violation was excused], then you must still
decide whether [name of defendant/plaintiff] was negligent in light of the
other instructions.
New September 2003; Revised December 2005, June 2011, November 2020
Directions for Use
This jury instruction addresses the establishment of the two factual elements
underlying the presumption of negligence. If they are not established, then a finding
of negligence cannot be based on the alleged statutory violation. However,
negligence can still be proven by other means. (See Nunneley v. Edgar Hotel (1950)
36 Cal.2d 493, 500–501 [225 P.2d 497].)
If a rebuttal is offered on the ground that the violation was excused, then the
bracketed portion in the second and last paragraphs should be read. For an
instruction on excuse, see CACI No. 420, Negligence per se: Rebuttal of the
Presumption of Negligence—Violation Excused.
If the statute is lengthy, the judge may want to read it at the end of this instruction
instead of at the beginning. The instruction would then need to be revised, to tell
the jury that they will be hearing the statute at the end.
Rebuttal of the presumption of negligence is addressed in the instructions that
follow (see CACI Nos. 420 and 421).
Sources and Authority
• Negligence per se. Evidence Code section 669.
• “Although compliance with the law does not prove the absence of negligence,
violation of the law does raise a presumption that the violator was negligent.
This is called negligence per se.” (Jacobs Farm/Del Cabo, Inc. v. Western Farm
Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529]; see also
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Cal. Law Revision Com. com. to Evid. Code, § 669.)
• “ ‘The negligence per se doctrine is codified in Evidence Code section 669,
subdivision (a), under which negligence is presumed if the plaintiff establishes
four elements: (1) the defendant violated a statute, ordinance, or regulation; (2)
the violation proximately caused death or injury to person or property; (3) the
death or injury resulted from an occurrence the nature of which the statute,
ordinance, or regulation was designed to prevent; and (4) the person suffering
the death or the injury to his person or property was one of the class of persons
for whose protection the statute, ordinance, or regulation was adopted.’ ‘The
burden is on the proponent of a negligence per se instruction to demonstrate that
these elements are met.’ ” (Taulbee v. EJ Distribution Corp. (2019) 35
Cal.App.5th 590, 596 [247 Cal.Rptr.3d 538], internal citations omitted.)
• “The first two elements are normally questions for the trier of fact and the last
two are determined by the trial court as a matter of law. That is, the trial court
decides whether a statute or regulation defines the standard of care in a
particular case.” (Jacobs Farm/Del Cabo, Inc., supra, 190 Cal.App.4th at p.
1526, internal citations omitted; see also Cal. Law Revision Com. com. to Evid.
Code, § 669.)
• “[T]he doctrine of negligence per se is not a separate cause of action, but creates
an evidentiary presumption that affects the standard of care in a cause of action
for negligence.” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534 [238
Cal.Rptr.3d 528].)
• “Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to prove
duty of care and standard of care. [Citation.] The plaintiff still has the burden of
proving causation.” (David v. Hernandez (2014) 226 Cal.App.4th 578, 584 [172
Cal.Rptr.3d 204].)
• “Where a statute establishes a party’s duty, ‘ “proof of the [party’s] violation of a
statutory standard of conduct raises a presumption of negligence that may be
rebutted only by evidence establishing a justification or excuse for the statutory
violation.” ’ This rule, generally known as the doctrine of negligence per se,
means that where the court has adopted the conduct prescribed by statute as the
standard of care for a reasonable person, a violation of the statute is presumed to
be negligence.” (Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263 [155
Cal.Rptr.3d 306], internal citation omitted.)
• “[I]n negligence per se actions, the plaintiff must produce evidence of a violation
of a statute and a substantial probability that the plaintiff’s injury was caused by
the violation of the statute before the burden of proof shifts to the defendant to
prove the violation of the statute did not cause the plaintiff’s injury.” (Toste v.
CalPortland Construction (2016) 245 Cal.App.4th 362, 371 [199 Cal.Rptr.3d
522].)
• “ ‘The significance of a statute in a civil suit for negligence lies in its
formulation of a standard of conduct that the court adopts in the determination
of such liability. The decision as to what the civil standard should be still rests
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with the court, and the standard formulated by a legislative body in a police
regulation or criminal statute becomes the standard to determine civil liability
only because the court accepts it. In the absence of such a standard the case goes
to the jury, which must determine whether the defendant has acted as a
reasonably prudent man would act in similar circumstances. The jury then has
the burden of deciding not only what the facts are but what the unformulated
standard is of reasonable conduct. When a legislative body has generalized a
standard from the experience of the community and prohibits conduct that is
likely to cause harm, the court accepts the formulated standards and applies them
[citations], except where they would serve to impose liability without fault.’ ”
(Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547 [25 Cal.Rptr.2d 97, 863 P.2d
167].), internal citations omitted.)
• “There is no doubt in this state that a federal statute or regulation may be
adopted as a standard of care.” (DiRosa v. Showa Denko K. K. (1996) 44
Cal.App.4th 799, 808 [52 Cal.Rptr.2d 128].)
• “[T]he courts and the Legislature may create a negligence duty of care, but an
administrative agency cannot independently impose a duty of care if that
authority has not been properly delegated to the agency by the Legislature.”
(Cal. Serv. Station Etc. Ass’n v. Am. Home Assur. Co. (1998) 62 Cal.App.4th
1166, 1175 [73 Cal.Rptr.2d 182].)
• “In combination, the [1999] language and the deletion [to Lab. Code, § 6304.5]
indicate that henceforth, Cal-OSHA provisions are to be treated like any other
statute or regulation and may be admitted to establish a standard or duty of care
in all negligence and wrongful death actions, including third party actions.”
(Elsner v. Uveges (2004) 34 Cal.4th 915, 928 [22 Cal.Rptr.3d 530, 102 P.3d
915].)
• “While courts have applied negligence per se to building code violations, it has
only been applied in limited situations.” (Jones v. Awad (2019) 39 Cal.App.5th
1200, 1212 [252 Cal.Rptr.3d 596].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002–1028
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-H, Negligence
Predicated On Statutory Violation (“Negligence Per Se”), ¶ 2:1845 (The Rutter
Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8G-C,
Procedural Considerations—Presumptions, ¶ 8:3604 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28–1.31
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, §§ 3.10, 3.13 (Matthew
Bender)
4 California Trial Guide, Unit 90, Closing Argument, §§ 90.88, 90.89 (Matthew
Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.04 (Matthew Bender)
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33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.50
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.70, 165.80,
165.81 (Matthew Bender)
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419. Presumption of Negligence per se (Causation Only at Issue)
[Insert citation to statute, regulation, or ordinance] states:
.
A violation of this law has been established and is not an issue for you to
decide.
[However, you must decide whether the violation was excused. If it was
not excused, then you] [You] must decide whether the violation was a
substantial factor in harming [name of plaintiff].
If you decide that the violation was a substantial factor, then you must
find that [name of plaintiff/defendant] was negligent.
New September 2003; Revised December 2011
Directions for Use
The California Law Revision Commission comment on Evidence Code section 669
states that the trier of fact usually decides the question of whether the violation
occurred. However, “if a party admits the violation or if the evidence of the
violation is undisputed, it is appropriate for the judge to instruct the jury that a
violation of the statute, ordinance, or regulation has been established as a matter of
law.” In such cases, the jury would decide causation and, if applicable, the existence
of any justification or excuse. For an instruction on excuse, see CACI No. 420,
Negligence per se: Rebuttal of the Presumption of Negligence—Violation Excused.
See also Sources and Authority to CACI No. 418, Presumption of Negligence per
se.
Sources and Authority
• Presumption of Negligence per se. Evidence Code section 669(a).
• “Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to prove
duty of care and standard of care. [Citation.] The plaintiff still has the burden of
proving causation.” (David v. Hernandez (2014) 226 Cal.App.4th 578, 584 [172
Cal.Rptr.3d 204].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002–1028
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28–1.31
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.10 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.110
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.70, 165.80
(Matthew Bender)
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420. Negligence per se: Rebuttal of the Presumption of
Negligence—Violation Excused
A violation of a law is excused if [name of plaintiff/name of defendant]
proves that one of the following is true:
(a) The violation was reasonable because of [name of
plaintiff/defendant]’s [specify type of “incapacity”]; [or]
(b) Despite using reasonable care, [name of plaintiff/name of defendant]
was not able to obey the law; [or]
(c) [Name of plaintiff/name of defendant] faced an emergency that was
not caused by [his/her/nonbinary pronoun] own misconduct; [or]
(d) Obeying the law would have involved a greater risk of harm to
[name of plaintiff/defendant] or to others; [or]
(e) [Other reason excusing or justifying noncompliance.]
New September 2003; Revised May 2020
Directions for Use
The burden of proof shifts from the party asserting a negligence per se claim to the
party claiming an excuse for violating a law. (Baker-Smith v. Skolnick (2019) 37
Cal.App.5th 340, 347 [249 Cal.Rptr.3d 514].) Factor (b), regarding an attempt to
comply with the applicable statute or regulation, should not be given if the evidence
does not show such an attempt. (Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 423
[94 Cal.Rptr. 49].) Factor (b) should be used only in special cases because it relies
on the concept of due care to avoid a charge of negligence per se. (Casey v. Russell
(1982) 138 Cal.App.3d 379, 385 [188 Cal.Rptr. 18].)
Sources and Authority
• Rebuttal of Presumption of Negligence per se. Evidence Code section 669(b)(1).
• “In our opinion the correct test is whether the person who has violated a statute
has sustained the burden of showing that he did what might reasonably be
expected of a person of ordinary prudence, acting under similar circumstances,
who desired to comply with the law.” (Alarid v. Vanier (1958) 50 Cal.2d 617,
624 [327 P.2d 897].)
• “[T]he presumption of negligence codified in Evidence Code section 669,
subdivision (a), may be rebutted by proof that ‘[t]he person violating the statute,
ordinance, or regulation did what might reasonably be expected of a person of
ordinary prudence, acting under similar circumstances, who desired to comply
with the law.’ ” (Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590,
597 [247 Cal.Rptr.3d 538].)
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• “An excuse instruction is improper unless special circumstances exist.” (Baker-
Smith, supra, 37 Cal.App.5th at p. 345.)
• “The Restatement Second of Torts illustrates the types of situations which may
justify or excuse a violation of the statute: [¶] ‘(a) [T]he violation is reasonable
because of the actor’s incapacity [e.g., a small child runs into the street without
looking, in violation of statute requiring pedestrians to look both ways before
crossing]; [¶] ‘(b) [H]e neither knows nor should know of the occasion for
compliance; [¶] ‘(c) [H]e is unable after reasonable diligence or care to comply
[e.g., a statute provides that railroads must keep fences clear of snow. A heavy
blizzard covers the fences with snow and, acting promptly and reasonably, the
railroad company is unable to remove all the snow for 3 days. Someone crosses
the fence on the snow mound and is injured. The violation of the statute is
excused]; [¶] ‘(d) [H]e is confronted by an emergency not due to his own
misconduct [e.g., swerving into left lane to avoid child suddenly darting into the
road]; [¶] ‘(e) [C]ompliance would involve a greater risk of harm to the actor or
to others.’ Thus, in emergencies or because of some unusual circumstances, it
may be difficult or impossible to comply with the statute, and the violation may
be excused.” (Casey, supra, 138 Cal.App.3d at p. 384, internal citations omitted.)
• “To determine whether excuse could be a defense in a negligence per se case,
California law weighs the benefits and burdens of accident precautions.” (Baker-
Smith, supra, 37 Cal.App.5th at p. 345.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002–1028
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28–1.31
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.13 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.81 (Matthew
Bender)
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421. Negligence per se: Rebuttal of the Presumption of
Negligence (Violation of Minor Excused)
[Name of plaintiff/defendant] claims that even if [he/she/nonbinary pronoun]
violated the law, [he/she/nonbinary pronoun] is not negligent because [he/
she/nonbinary pronoun] was years old at the time of the incident.
If you find that [name of plaintiff/defendant] was as careful as a
reasonably careful child of the same age, intelligence, knowledge, and
experience would have been in the same situation, then [name of plaintiff/
defendant] was not negligent.
New September 2003
Directions for Use
This instruction does not apply if the minor is engaging in an adult activity. (Evid.
Code, § 669(b)(2).)
Sources and Authority
• Rebuttal of Presumption of Negligence per se: Minor. Evidence Code section
669(b)(2).
• “The per se negligence instruction is predicated on the theory that the
Legislature has adopted a statutory standard of conduct that no reasonable man
would violate, and that all reasonable adults would or should know such
standard. But this concept does not apply to children.” (Daun v. Truax (1961) 56
Cal.2d 647, 654 [16 Cal.Rptr. 351, 365 P.2d 407].)
• An exception to this reduced standard of care may be found if the minor was
engaging in an adult activity, such as driving. (Prichard v. Veterans Cab Co.
(1965) 63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360]; Neudeck v.
Bransten (1965) 233 Cal.App.2d 17, 21 [43 Cal.Rptr. 250]; see also Rest.2d
Torts, § 283A, com. c.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1002–1028
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.28–1.31
1 Levy et al., California Torts, Ch. 3, Proof of Negligence, § 3.13 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
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422. Providing Alcoholic Beverages to Obviously Intoxicated
Minors (Bus. & Prof. Code, § 25602.1)
[Name of plaintiff] claims [name of defendant] is responsible for [his/her/
nonbinary pronoun] harm because [name of defendant] [sold/gave]
alcoholic beverages to [name of alleged minor], a minor who was already
obviously intoxicated.
To establish this claim, [name of plaintiff] must prove all of the following:
1. [That [name of defendant] was [required to be] licensed to sell
alcoholic beverages;]
1. [or]
1. [That [name of defendant] was authorized by the federal
government to sell alcoholic beverages on a military base or other
federal enclave;]
2. [That [name of defendant] [sold/gave] alcoholic beverages to [name
of alleged minor];]
2. [or]
2. [That [name of defendant] caused alcoholic beverages to be [sold/
given away] to [name of alleged minor];]
3. That [name of alleged minor] was less than 21 years old at the
time;
4. That when [name of defendant] provided the alcoholic beverages,
[name of alleged minor] displayed symptoms that would lead a
reasonable person to conclude that [he/she/nonbinary pronoun] was
obviously intoxicated;
5. That [name of alleged minor] harmed [name of plaintiff]; and
6. That [name of defendant]’s [selling/giving] alcoholic beverages to
[name of alleged minor] was a substantial factor in causing [name
of plaintiff]’s harm.
In deciding whether [name of alleged minor] was obviously intoxicated,
you may consider whether [he/she/nonbinary pronoun] displayed one or
more of the following symptoms to [name of defendant] before the
alcoholic beverages were provided: impaired judgment; alcoholic breath;
incoherent or slurred speech; poor muscular coordination; staggering or
unsteady walk or loss of balance; loud, boisterous, or argumentative
conduct; flushed face; or other symptoms of intoxication. The mere fact
that [name of alleged minor] had been drinking is not enough.
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New September 2003; Revised December 2009, June 2014, December 2014, May
2020
Directions for Use
Business and Professions Code section 25602.1 imposes potential liability on those
who have or are required to have a liquor license for the selling, furnishing, or
giving away of alcoholic beverages to an obviously intoxicated minor. It also
imposes potential liability on a person who is not required to be licensed who sells
alcohol to an obviously intoxicated minor. (See Ennabe v. Manosa (2014) 58 Cal.4th
697, 711 [168 Cal.Rptr.3d 440, 319 P.3d 201].) In this latter case, omit element 1,
select “sold” in the opening paragraph and in element 2, and select “selling” in
element 6.
If the plaintiff is the minor who is suing for the plaintiff’s own injuries (see Chalup
v. Aspen Mine Co. (1985) 175 Cal.App.3d 973, 974 [221 Cal.Rptr. 97]), modify the
instruction by substituting the appropriate pronoun for “[name of alleged minor]”
throughout.
For purposes of this instruction, a “minor” is someone under the age of 21. (Rogers
v. Alvas (1984) 160 Cal.App.3d 997, 1004 [207 Cal.Rptr. 60].)
Sources and Authority
• Liability for Providing Alcohol to Minors. Business and Professions Code
section 25602.1.
• Sales Under the Alcoholic Beverage Control Act. Business and Professions Code
section 23025.
• “In sum, if a plaintiff can establish the defendant provided alcohol to an
obviously intoxicated minor, and that such action was the proximate cause of the
plaintiff’s injuries or death, section 25602.1—the applicable statute in this
case—permits liability in two circumstances: (1) the defendant was either
licensed to sell alcohol, required to be licensed, or federally authorized to sell
alcoholic beverages in certain places, and the defendant sold, furnished, or gave
the minor alcohol or caused alcohol to be sold, furnished, or given to the minor;
or (2) the defendant was ‘any other person’ (i.e., neither licensed nor required to
be licensed), and he or she sold alcohol to the minor or caused it to be sold.
Whereas licensees (and those required to be licensed) may be liable if they
merely furnish or give an alcoholic beverage away, a nonlicensee may be liable
only if a sale occurs; that is, a nonlicensee, such as a social host, who merely
furnishes or gives drinks away—even to an obviously intoxicated minor—retains
his or her statutory immunity.” (Ennabe, supra, 58 Cal.4th at pp. 709–710,
original italics.)
• “[W]e conclude that the placement of section 25602.1 in the Business and
Professions Code does not limit the scope of that provision to commercial
enterprises. First, the structure of section 25602.1 suggests it applies to
noncommercial providers of alcohol. The statute addresses four categories of
persons and we assume those falling in the first three categories—those licensed
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by the Department of ABC, those without licenses but who are nevertheless
required to be licensed, and those authorized to sell alcohol by the federal
government—are for the most part engaged in some commercial enterprise. The
final category of persons addressed by section 25602.1 is more of a catchall:
‘any other person’ who sells alcohol. Consistent with the plain meaning of the
statutory language and the views of the Department of ABC, we find this final
category includes private persons and ostensible social hosts who, for whatever
reason, charge money for alcoholic drinks.” (Ennabe, supra, 58 Cal.4th at p.
711.)
• “[Business and Professions Code] Section 23025’s broad definition of a sale
shows the Legislature intended the law to cover a wide range of transactions
involving alcoholic beverages: a qualifying sale includes ‘any transaction’ in
which title to an alcoholic beverage is passed for ‘any consideration.’ (Italics
added.) Use of the term ‘any’ to modify the words ‘transaction’ and
‘consideration’ demonstrates the Legislature intended the law to have a broad
sweep and thus include both indirect as well as direct transactions.” (Ennabe,
supra, 58 Cal.4th at p. 714, original italics.)
• “ ‘The use of intoxicating liquor by the average person in such quantity as to
produce intoxication causes many commonly known outward manifestations
which are “plain” and “easily seen or discovered.” If such outward
manifestations exist and the seller still serves the customer so affected, he has
violated the law, whether this was because he failed to observe what was plain
and easily seen or discovered, or because, having observed, he ignored that
which was apparent.’ ” (Schaffıeld v. Abboud (1993) 15 Cal.App.4th 1133, 1140
[19 Cal.Rptr.2d 205], original italics.)
• “[T]he standard for determining ‘obvious intoxication’ is measured by that of a
reasonable person.” (Schaffıeld, supra, 15 Cal.App.4th at p. 1140.)
• “We shall make no effort to state definitively the meaning of the word
‘furnishes’ . . . . As used in a similar context the word ‘furnish’ has been said to
mean: ‘ “To supply; to offer for use, to give, to hand.” ’ It has also been said the
word ‘furnish’ is synonymous with the words ‘supply’ or ‘provide.’ In relation to
a physical object or substance, the word ‘furnish’ connotes possession or control
over the thing furnished by the one who furnishes it. The word ‘furnish’ implies
some type of affirmative action on the part of the furnisher; failure to protest or
attempt to stop another from imbibing an alcoholic beverage does not constitute
‘furnishing.’ ” (Bennett v. Letterly (1977) 74 Cal.App.3d 901, 904–905 [141
Cal.Rptr. 682], internal citations omitted.)
• “As used in liquor laws, ‘furnish’ means to provide in any way, and includes
giving as well as selling. . . . [¶] California courts have interpreted the terms
‘furnish’ and ‘furnished’ as requiring an affirmative act by the purported
furnisher to supply the alcoholic beverage to the drinker.” (Fiorini v. City
Brewing Co., LLC (2014) 231 Cal.App.4th 306, 320–321 [179 Cal.Rptr.3d 827]
[beverage manufacturer does not “furnish” beverage to the consumer], footnote
and internal citation omitted.)
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• “As instructed by the court, the jury was told to consider several outward
manifestations of obvious intoxication, which included incontinence, unkempt
appearance, alcoholic breath, loud or boisterous conduct, bloodshot or glassy
eyes, incoherent or slurred speech, flushed face, poor muscular coordination or
unsteady walking, loss of balance, impaired judgment, or argumentative
behavior. This instruction was correct.” (Jones v. Toyota Motor Co. (1988) 198
Cal.App.3d 364, 370 [243 Cal.Rptr. 611], internal citation omitted.)
• “[S]ection 25602.1’s phrase ‘causes to be sold’ requires an affirmative act
directly related to the sale of alcohol which necessarily brings about the resultant
action to which the statute is directed, i.e., the furnishing of alcohol to an
obviously intoxicated minor.” (Hernandez v. Modesto Portuguese Pentecost Assn.
(1995) 40 Cal.App.4th 1274, 1276 [48 Cal.Rptr.2d 229].)
• “The undisputed evidence shows [defendant]’s checker sold beer to Spitzer and
that Spitzer later gave some of that beer to Morse. As in Salem [Salem v.
Superior Court (1989) 211 Cal.App.3d 595, 600 [259 Cal.Rptr. 447]], we
conclude defendant cannot be held liable because the person to whom it sold
alcohol was not the person whose negligence allegedly caused the injury at
issue.” (Ruiz v. Safeway, Inc. (2013) 209 Cal.App.4th 1455, 1462 [147
Cal.Rptr.3d 809].)
• “[O]bviously intoxicated minors who are served alcohol by a licensed purveyor
of liquor, may bring a cause of action for negligence against the purveyor for
[their own] subsequent injuries.” (Chalup, supra, 175 Cal.App.3d at p. 979.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1218
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.63
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-L, Liability For
Providing Alcoholic Beverages, ¶ 2:2101 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.21
(Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 19, Alcoholic Beverages: Civil
Liability, §§ 19.12, 19.52, 19.75 (Matthew Bender)
1 California Points and Authorities, Ch. 15A, Alcoholic Beverages: Civil Liability
for Furnishing, § 15A.21 et seq. (Matthew Bender)
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423. Public Entity Liability for Failure to Perform Mandatory Duty
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] violated [insert reference to statute, regulation,
or ordinance] which states: [insert relevant language]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] violated [insert reference to statute,
regulation, or ordinance];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s failure to perform its duty was a
substantial factor in causing [name of plaintiff]’s harm.
[Name of defendant], however, is not responsible for [name of plaintiff]’s
harm if [name of defendant] proves that it made reasonable efforts to
perform its duties under the [statute/regulation/ordinance].
New September 2003
Directions for Use
The judge decides the issues of whether the statute imposes a mandatory duty and
whether it was designed to protect against the type of harm suffered. (Haggis v. City
of Los Angeles (2000) 22 Cal.4th 490, 499 [93 Cal.Rptr.2d 327, 993 P.2d 983].)
Sources and Authority
• Government Liability for Failure to Perform Mandatory Duty. Government Code
section 815.6.
• “ ‘Where a public entity is under a mandatory duty imposed by an enactment
that is designed to protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that kind proximately caused by its failure
to discharge the duty unless the public entity establishes that it exercised
reasonable diligence to discharge the duty.’ (Gov. Code, § 815.6.) Thus, the
government may be liable when (1) a mandatory duty is imposed by enactment,
(2) the duty was designed to protect against the kind of injury allegedly suffered,
and (3) breach of the duty proximately caused injury.” (State Dept. of State
Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348 [188 Cal.Rptr.3d 309,
349 P.3d 1013].)
• “In order to recover plaintiffs have to show that there is some specific statutory
mandate that was violated by the County, which violation was a proximate cause
of the accident.” (Washington v. County of Contra Costa (1995) 38 Cal.App.4th
890, 896–897 [45 Cal.Rptr.2d 646], internal citations omitted.)
• “[T]he term ‘enactment’ refers to ‘a constitutional provision, statute, charter
provision, ordinance or regulation.’ . . . A ‘contract cannot give rise to “a
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mandatory duty imposed by an enactment . . . .” ’ ” (Tuthill v. City of San
Buenaventura (2014) 223 Cal.App.4th 1081, 1091−1092 [167 Cal.Rptr.3d 820].)
• “The first element of liability under Government Code section 815.6 requires
that ‘ “the enactment at issue be obligatory, rather than merely discretionary or
permissive, in its directions to the public entity; it must require, rather than
merely authorize or permit, that a particular action be taken or not taken.
[Citation.] It is not enough, moreover, that the public entity or officer have been
under an obligation to perform a function if the function itself involves the
exercise of discretion. [Citation.]’ [Citation.] Courts have construed this first
prong rather strictly, finding a mandatory duty only if the enactment
‘affirmatively imposes the duty and provides implementing guidelines.” ’ ” (B.H.
v. County of San Bernardino (2015) 62 Cal.4th 168, 180 [195 Cal.Rptr.3d 220,
361 P.3d 319], original italics.)
• “ ‘It is not enough, moreover, that the public entity or officer have been under an
obligation to perform a function if the function itself involves the exercise of
discretion.’ Moreover, ‘[c]ourts have . . . [found] a mandatory duty only if the
enactment “affirmatively imposes the duty and provides implementing
guidelines.” ’ ‘ “ ‘[T]he mandatory nature of the duty must be phrased in explicit
and forceful language.’ [Citation.] ‘It is not enough that some statute contains
mandatory language. In order to recover plaintiffs have to show that there is
some specific statutory mandate that was violated by the [public entity].’ ”
[Citations.]’ ” (State Dept. of State Hospitals, supra, 61 Cal. 4th at pp. 348−349,
internal citations omitted.)
• “Courts have recognized that as a practical matter the standard for determining
whether a mandatory duty exists is ‘virtually identical’ to the test for an implied
statutory duty of care under Evidence Code section 669.” (Alejo v. City of
Alhambra (1999) 75 Cal.App.4th 1180, 1185, fn. 3 [89 Cal.Rptr.2d 768],
disapproved on other grounds in B.H., supra, 62 Cal.4th at p. 188, fn. 6, internal
citations omitted.)
• “The injury must be ‘ “ ‘one of the consequences which the [enacting body]
sought to prevent through imposing the alleged mandatory duty.’ ” ’ . . . ‘That
the enactment “confers some benefit” on the class to which plaintiff belongs is
not enough; if the benefit is “incidental” to the enactment’s protective purpose,
the enactment cannot serve as a predicate for liability under section 815.6.”
(Tuthill, supra, 223 Cal.App.4th at p. 1092, internal citation omitted.)
• “Financial limitations of governments have never been, and cannot be, deemed
an excuse for a public employee’s failure to comply with mandatory duties
imposed by law.” (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125,
146 [32 Cal.Rptr.2d 643], internal citations omitted.)
• “Questions of statutory immunity do not become relevant until it has been
determined that the defendant otherwise owes a duty of care to the plaintiff and
thus would be liable in the absence of such immunity. However, a defendant
may not be held liable for the breach of a duty if such an immunity in fact
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exists.” (Washington, supra, 38 Cal.App.4th at p. 896, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 296–300
5 Levy et al., California Torts, Ch. 60, General Principles of Liability and Immunity
of Public Entities and Employees, § 60.22 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.61 (Matthew Bender)
45 California Forms of Pleading and Practice, Ch. 514, Schools: Injuries to
Students, § 514.17 (Matthew Bender)
19 California Points and Authorities, Ch. 196, Public Entities, § 196.182 (Matthew
Bender)
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424. Negligence Not Contested—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of defendant]’s negligence. [Name of defendant] agrees that [he/she/
nonbinary pronoun/it] was negligent, but denies that the negligence caused
[[name of plaintiff] any harm/the full extent of the harm claimed by
[name of plaintiff]].
To establish [his/her/nonbinary pronoun/its] claim against [name of
defendant], [name of plaintiff] must prove both of the following:
1. That [name of plaintiff] was harmed; and
2. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2005
Directions for Use
This instruction is intended for cases in which the defendant “admits” liability, but
contests causation and damages. This instruction can be modified for use in cases
involving claims that are not based on negligence.
Secondary Sources
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, Ch. 2,
Causation (Matthew Bender)
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425. “Gross Negligence” Explained
Gross negligence is the lack of any care or an extreme departure from
what a reasonably careful person would do in the same situation to
prevent harm to oneself or to others.
A person can be grossly negligent by acting or by failing to act.
New April 2008; Revised December 2015
Directions for Use
Give this instruction if a particular statute that is at issue in the case creates a
distinction based on a standard of gross negligence. (See, e.g., Gov. Code,
§ 831.7(c)(1)(E) [immunity for public entity or employee to liability to participant in
or spectator to hazardous recreational activity does not apply if act of gross
negligence is proximate cause of injury].) Courts generally resort to this definition if
gross negligence is at issue under a statute. (See, e.g., Wood v. County of San
Joaquin (2003) 111 Cal.App.4th 960, 971 [4 Cal.Rptr.3d 340].)
Give this instruction with CACI No. 400, Negligence—Essential Factual Elements,
but modify that instruction to refer to gross negligence.
This instruction may also be given if case law has created a distinction between
gross and ordinary negligence. For example, under the doctrine of express
assumption of risk, a signed waiver of liability may release liability for ordinary
negligence only, not for gross negligence. (See City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095]; see also
CACI No. 451, Affırmative Defense—Contractual Assumption of Risk.) Once the
defendant establishes the validity and applicability of the release, the plaintiff must
prove gross negligence by a preponderance of the evidence. (Eriksson v. Nunnink
(2015) 233 Cal.App.4th 708, 732, 734 [183 Cal.Rptr.3d 234].) A lack of gross
negligence can be found as a matter of law if the plaintiff’s showing is insufficient
to suggest a triable issue of fact. (See Grebing v. 24 Hour Fitness USA, Inc. (2015)
234 Cal.App.4th 631, 638–639 [184 Cal.Rptr.3d 155]; cf. Jimenez v. 24 Hour
Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555 [188 Cal.Rptr.3d 228] [whether
conduct constitutes gross negligence is generally a question of fact, depending on
the nature of the act and the surrounding circumstances shown by the evidence].)
Sources and Authority
• “ ‘Gross negligence’ long has been defined in California and other jurisdictions
as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the
ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara, supra, 41 Cal.4th at
p. 754, internal citations omitted.)
• “By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton
negligence” ’) describes conduct by a person who may have no intent to cause
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harm, but who intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm will result.”
(City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4, internal citations
omitted.)
• “California does not recognize a distinct cause of action for ‘gross negligence’
independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th
826, 856 [120 Cal.Rptr.3d 90].)
• “Gross negligence is pleaded by alleging the traditional elements of negligence:
duty, breach, causation, and damages. However, to set forth a claim for ‘gross
negligence’ the plaintiff must allege extreme conduct on the part of the
defendant.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072,
1082 [122 Cal.Rptr.3d 22], internal citation omitted.)
• “The theory that there are degrees of negligence has been generally criticized by
legal writers, but a distinction has been made in this state between ordinary and
gross negligence. Gross negligence has been said to mean the want of even scant
care or an extreme departure from the ordinary standard of conduct.” (Van Meter
v. Bent Constr. Co. (1956) 46 Cal.2d 588, 594 [297 P.2d 644], internal citation
omitted.)
• “Numerous California cases have discussed the doctrine of gross negligence.
Invariably these cases have turned upon an interpretation of a statute which has
used the words ‘gross negligence’ in the text.” (Cont’l Ins. Co. v. Am. Prot.
Indus. (1987) 197 Cal.App.3d 322, 329 [242 Cal.Rptr. 784].)
• “[I]n cases involving a waiver of liability for future negligence, courts have held
that conduct that substantially or unreasonably increased the inherent risk of an
activity or actively concealed a known risk could amount to gross negligence,
which would not be barred by a release agreement. Evidence of conduct that
evinces an extreme departure from manufacturer’s safety directions or an
industry standard also could demonstrate gross negligence. Conversely, conduct
demonstrating the failure to guard against, or warn of, a dangerous condition
typically does not rise to the level of gross negligence.” (Anderson v. Fitness
Internat., LLC (2016) 4 Cal.App.5th 867, 881 [208 Cal.Rptr.3d 792], internal
citations omitted.)
• “[P]ublic policy generally precludes enforcement of an agreement that would
remove an obligation to adhere to even a minimal standard of care. Applying
that general rule here, we hold that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child
who participates in a recreational camp designed for the needs of such children
violates public policy and is unenforceable.” (City of Santa Barbara, supra, 41
Cal.4th at p. 777, original italics.)
• “ ‘Prosser on Torts (1941) page 260, also cited by the Van Meter court for its
definition of gross negligence, reads as follows: “Gross Negligence. This is very
great negligence, or the want of even scant care. It has been described as a
failure to exercise even that care which a careless person would use. Many
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courts, dissatisfied with a term so devoid of all real content, have interpreted it
as requiring wilful misconduct, or recklessness, or such utter lack of all care as
will be evidence of either—sometimes on the ground that this must have been
the purpose of the legislature. But most courts have considered that ‘gross
negligence’ falls short of a reckless disregard of consequences, and differs from
ordinary negligence only in degree, and not in kind. So far as it has any
accepted meaning, it is merely an extreme departure from the ordinary standard
of care.” ’ ” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358
[257 Cal.Rptr. 356], original italics, internal citations omitted.)
• “In assessing where on the spectrum a particular negligent act falls, ‘ “[t]he
amount of care demanded by the standard of reasonable conduct must be in
proportion to the apparent risk. As the danger becomes greater, the actor is
required to exercise caution commensurate with it.” ’ ” (Hass v. RhodyCo
Productions (2018) 26 Cal.App.5th 11, 32 [236 Cal.Rptr.3d 682].)
• “Generally it is a triable issue of fact whether there has been such a lack of care
as to constitute gross negligence [citation] but not always.” (Chavez v. 24 Hour
Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [189 Cal.Rptr.3d 449].)
• “The Legislature has enacted numerous statutes . . . which provide immunity to
persons providing emergency assistance except when there is gross negligence.
(See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good
faith renders emergency care at the scene of an emergency occurring outside the
place and course of nurse’s employment unless the nurse is grossly negligent];
Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves on-
call in a hospital emergency room who in good faith renders emergency
obstetrical services unless the physician was grossly negligent, reckless, or
committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for
licensed physician who in good faith and without compensation renders
voluntary emergency medical assistance to a participant in a community college
or high school athletic event for an injury suffered in the course of that event
unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706
[immunity for certified respiratory therapist who in good faith renders emergency
care at the scene of an emergency occurring outside the place and course of
employment unless the respiratory therapist was grossly negligent]; Bus. & Prof.
Code, § 4840.6 [immunity for a registered animal health technician who in good
faith renders emergency animal health care at the scene of an emergency unless
the animal health technician was grossly negligent]; Civ. Code, § 1714.2
[immunity to a person who has completed a basic cardiopulmonary resuscitation
course for cardiopulmonary resuscitation and emergency cardiac care who in
good faith renders emergency cardiopulmonary resuscitation at the scene of an
emergency unless the individual was grossly negligent]; Health & Saf. Code,
§ 1799.105 [immunity for poison control center personnel who in good faith
provide emergency information and advice unless they are grossly negligent];
Health & Saf. Code, § 1799.106 [immunity for a firefighter, police officer or
other law enforcement officer who in good faith renders emergency medical
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services at the scene of an emergency unless the officer was grossly negligent];
Health & Saf. Code, § 1799.107 [immunity for public entity and emergency
rescue personnel acting in good faith within the scope of their employment
unless they were grossly negligent].)” (Decker, supra, 209 Cal.App.3d at pp.
356–357.)
• “The jury here was instructed: ‘It is the duty of one who undertakes to perform
the services of a police officer or paramedic to have the knowledge and skills
ordinarily possessed and to exercise the care and skill ordinarily used in like
cases by police officers or paramedics in the same or similar locality and under
similar circumstances. A failure to perform such duty is negligence. [para.] The
standard to be applied in this case is gross negligence. The term gross
negligence means the failure to provide even scant care or an extreme departure
from the ordinary standard of conduct.’ ” (Wright v. City of L.A. (1990) 219
Cal.App.3d 318, 343 [268 Cal.Rptr. 309] [construing “gross negligence” under
Health & Saf. Code, § 1799.106, which provides that a police officer or
paramedic who renders emergency medical services at the scene of an
emergency shall only be liable in civil damages for acts or omissions performed
in a grossly negligent manner or not performed in good faith].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 331
Advising and Defending Corporate Directors and Officers (Cont.Ed.Bar) § 3.13
1 Levy et al., California Torts, Ch. 1, General Principles of Liability, § 1.01
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, §§ 380.10,
380.171 (Matthew Bender)
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426. Negligent Hiring, Supervision, or Retention of Employee
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of employee] and that [name of employer defendant] is responsible
for that harm because [name of employer defendant] negligently [hired/
supervised/ [or] retained] [name of employee]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. [That [name of employer defendant] hired [name of employee];]
2. That [name of employee] [[was/became] [unfit [or] incompetent] to
perform the work for which [he/she/nonbinary pronoun] was hired/
[specify other particular risk]];
3. That [name of employer defendant] knew or should have known
that [name of employee] [[was/became] [unfit/ [or] incompetent]/
[other particular risk]] and that this [unfitness [or] incompetence/
[other particular risk]] created a particular risk to others;
4. That [name of employee]’s [unfitness [or] incompetence/[other
particular risk]] harmed [name of plaintiff]; and
5. That [name of employer defendant]’s negligence in [hiring/
supervising/ [or] retaining] [name of employee] was a substantial
factor in causing [name of plaintiff]’s harm.
New December 2009; Revised December 2015, June 2016
Directions for Use
Give this instruction if the plaintiff alleges that the employer of an employee who
caused harm was negligent in the hiring, supervision, or retention of the employee
after actual or constructive notice that the employee created a particular risk or
hazard to others. For instructions holding the employer vicariously liable (without
fault) for the acts of the employee, see the Vicarious Responsibility series, CACI
No. 3700 et seq.
Include optional question 1 if the employment relationship between the defendant
and the negligent person is contested. (See Jackson v. AEG Live, LLC (2015) 233
Cal.App.4th 1156, 1185–1189 [183 Cal.Rptr.3d 394].) It appears that liability may
also be imposed on the hirer of an independent contractor for the negligent selection
of the contractor. (See Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654,
662–663 [109 Cal.Rptr. 269].) Therefore, it would not seem to be necessary to
instruct on the test to determine whether the relationship is one of employer-
employee or hirer-independent contractor. (See CACI No. 3704, Existence of
“Employee” Status Disputed.)
Choose “became” in elements 2 and 3 in a claim for negligent retention.
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In most cases, “unfitness” or “incompetence” (or both) will adequately describe the
particular risk that the employee represents. However, there may be cases in which
neither word adequately describes the risk that the employer should have known
about.
Sources and Authority
• “California case law recognizes the theory that an employer can be liable to a
third person for negligently hiring, supervising, or retaining an unfit employee.”
(Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [58 Cal.Rptr.2d 122].)
• “Negligence liability will be imposed on an employer if it ‘knew or should have
known that hiring the employee created a particular risk or hazard and that
particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139 [91 Cal.Rptr.3d 864].)
• “[Plaintiff] brought several claims against [defendant employer], including
negligent hiring, supervising, and retaining [employee], and failure to warn. To
prevail on his negligent hiring/retention claim, [plaintiff] will be required to
prove [employee] was [defendant employer]’s agent and [defendant employer]
knew or had reason to believe [employee] was likely to engage in sexual abuse.
On the negligent supervision and failure to warn claims, [plaintiff] will be
required to show [defendant employer] knew or should have known of
[employee]’s alleged misconduct and did not act in a reasonable manner when it
allegedly recommended him to serve as [plaintiff]’s Bible instructor.” (Lopez v.
Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th
566, 591 [201 Cal.Rptr.3d 156], internal citations omitted.)
• “[A] negligent supervision claim depends, in part, on a showing that the risk of
harm was reasonably foreseeable. [Citations.] ‘Foreseeability is determined in
light of all the circumstances and does not require prior identical events or
injuries.’ [Citations.] ‘ “It is not necessary to prove that the very injury which
occurred must have been foreseeable by the school authorities . . .. Their
negligence is established if a reasonably prudent person would foresee that
injuries of the same general type would be likely to happen in the absence of
[adequate] safeguards.” ’ ” (D.Z. v. Los Angeles Unified School Dist. (2019) 35
Cal.App.5th 210, 229 [247 Cal.Rptr.3d 127], internal citations omitted.)
• “Liability for negligent supervision and/or retention of an employee is one of
direct liability for negligence, not vicarious liability.” (Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [52 Cal.Rptr.3d 376].)
• “Liability for negligent hiring and supervision is based upon the reasoning that if
an enterprise hires individuals with characteristics which might pose a danger to
customers or other employees, the enterprise should bear the loss caused by the
wrongdoing of its incompetent or unfit employees. The tort has developed in
California in factual settings where the plaintiff’s injury occurred in the
workplace, or the contact between the plaintiff and the employee was generated
by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66
Cal.App.4th 1333, 1339–1340 [78 Cal.Rptr.2d 525].)
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• “To establish negligent supervision, a plaintiff must show that a person in a
supervisorial position over the actor had prior knowledge of the actor’s
propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238
Cal.App.4th 889, 902 [189 Cal.Rptr.3d 570].)
• “Apparently, [defendant] had no actual knowledge of [the employee]’s past. But
the evidence recounted above presents triable issues of material fact regarding
whether the [defendant] had reason to believe [the employee] was unfit or
whether the [defendant] failed to use reasonable care in investigating [the
employee].” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th
828, 843 [10 Cal.Rptr.2d 748]; cf. Flores v. AutoZone West Inc. (2008) 161
Cal.App.4th 373, 384–386 [74 Cal.Rptr.3d 178] [employer had no duty to
investigate and discover that job applicant had a juvenile delinquency record].)
• “We note that the jury instructions issued by our Judicial Council include
‘substantial factor’ causation as an element of the tort of negligent hiring,
retention, or supervision. The fifth element listed in CACI No. 426 is ‘[t]hat
[name of employer defendant]’s negligence in [hiring/ supervising/ [or] retaining]
[name of employee] was a substantial factor in causing [name of plaintiff]’s
harm.’ [¶] CACI No. 426 is consistent with California case law on the causation
element of [plaintiff]’s claim against [employer].” (Liberty Surplus Ins. Corp. v.
Ledesma & Meyer Construction Co., Inc. (2018) 5 Cal.5th 216, 224, fn.5 [233
Cal.Rptr.3d 487, 418 P.3d 400], original italics.)
• “A claim that an employer was negligent in hiring or retaining an employee-
driver rarely differs in substance from a claim that an employer was negligent in
entrusting a vehicle to the employee. Awareness, constructive or actual, that a
person is unfit or incompetent to drive underlies a claim that an employer was
negligent in hiring or retaining that person as a driver. (See Judicial Council of
Cal. Civ. Jury Instns. (2011) CACI No. 426.) That same awareness underlies a
claim for negligent entrustment. (See CACI No. 724.) In a typical case, like this,
the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51 Cal.4th
1148, 1157 [126 Cal.Rptr.3d 443, 253 P.3d 535].)
• “The language of the instruction used specifies the particular risk at issue in this
case. That is consistent with the model instruction, which prompts the user to
‘specify other particular risk,’ as well as the Directions for Use for CACI No.
426, which state: ‘In most cases, “unfitness” or “incompetence” (or both) will
adequately describe the particular risk that the employee represents. However,
there may be cases in which neither word adequately describes the risk that the
employer should have known about.’ It is also consistent with the case law,
discussed above, holding that a claim for negligent supervision requires a
showing of foreseeability of a particular risk of harm.” (D.Z., supra, 35
Cal.App.5th at p. 235, original italics.)
• “[I]f an employer admits vicarious liability for its employee’s negligent driving
in the scope of employment, ‘the damages attributable to both employer and
employee will be coextensive.’ Thus, when a plaintiff alleges a negligent
entrustment or hiring cause of action against the employer and the employer
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admits vicarious liability for its employee’s negligent driving, the universe of
defendants who can be held responsible for plaintiff’s damages is reduced by
one—the employer—for purposes of apportioning fault under Proposition 51.
Consequently, the employer would not be mentioned on the special verdict form.
The jury must divide fault for the accident among the listed tortfeasors, and the
employer is liable only for whatever share of fault the jury assigns to the
employee.” (Diaz, supra, 41 Cal.4th at p. 1159, internal citations omitted.)
• “[W]hen an employer . . . admits vicarious liability, neither the complaint’s
allegations of employer misconduct relating to the recovery of punitive damages
nor the evidence supporting those allegations are superfluous. Nothing in Diaz or
Armenta suggests otherwise.” (CRST, Inc. v. Superior Court (2017) 11
Cal.App.5th 1255, 1264 [218 Cal.Rptr.3d 664].)
• “[A] public school district may be vicariously liable under [Government Code]
section 815.2 for the negligence of administrators or supervisors in hiring,
supervising and retaining a school employee who sexually harasses and abuses a
student.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 879 [138 Cal.Rptr.3d 1, 270 P.3d 699].)
• “[P]laintiff premises her direct negligence claim on the hospital’s alleged failure
to properly screen [doctor] before engaging her and to properly supervise her
after engaging her. Since hiring and supervising medical personnel, as well as
safeguarding incapacitated patients, are clearly within the scope of services for
which the hospital is licensed, its alleged failure to do so necessarily states a
claim for professional negligence. Accordingly, plaintiff cannot pursue a claim of
direct negligence against the hospital.” (So v. Shin (2013) 212 Cal.App.4th 652,
668 [151 Cal.Rptr.3d 257].)
• “[Asking] whether [defendant] hired [employee] was necessary given the dispute
over who hired [employee]—[defendant] or [decedent]. As the trial court noted,
‘The employment was neither stipulated nor obvious on its face.’ However, if the
trial court began the jury instructions or special verdict form with, ‘Was
[employee] unfit or incompetent to perform the work for which he was hired,’
confusion was likely to result as the question assumed a hiring. Therefore, the
jury needed to answer the question of whether [defendant] hired [employee]
before it could determine if [defendant] negligently hired, retained, or supervised
him.” (Jackson, supra, 233 Cal.App.4th at pp. 1187–1188.)
• “Any claim alleging negligent hiring by an employer will be based in part on
events predating the employee’s tortious conduct. Plainly, that sequence of
events does not itself preclude liability.” (Liberty Surplus Ins. Corp., supra, 5
Cal.5th at p. 225, fn. 7.)
• “We find no relevant case law approving a claim for direct liability based on a
public entity’s allegedly negligent hiring and supervision practices. . . .
Here, . . . there is no statutory basis for declaring a governmental entity liable
for negligence in its hiring and supervision practices and, accordingly, plaintiffs’
claim against County based on that theory is barred . . . .” (de Villers v. County
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of San Diego (2007) 156 Cal.App.4th 238, 252–253 [67 Cal.Rptr.3d 253].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1350
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-I,
Employment Torts and Related Claims—Negligence, ¶ 5:800 et seq. (The Rutter
Group)
3 California Torts, Ch. 40B, Employment Discrimination and Harassment, § 40B.21
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.12 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.22 (Matthew Bender)
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427. Furnishing Alcoholic Beverages to Minors (Civ. Code,
§ 1714(d))
[Name of plaintiff] claims [name of defendant] is responsible for [his/her/
nonbinary pronoun] harm because [name of defendant] furnished alcoholic
beverages to [him/her/nonbinary pronoun/[name of minor]], a minor, at
[name of defendant]’s home.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was an adult;
2. That [name of defendant] knowingly furnished alcoholic beverages
to [him/her/nonbinary pronoun/[name of minor]] at [name of
defendant]’s home;
3. That [name of defendant] knew or should have known that [he/she/
nonbinary pronoun/[name of minor]] was less than 21 years old at
the time;
4. That [name of plaintiff] was harmed [by [name of minor]]; and
5. That [name of defendant]’s furnishing alcoholic beverages to
[[name of plaintiff]/[name of minor]] was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2011; Revised May 2020
Directions for Use
This instruction is for use for a claim of social host (noncommercial) liability for
furnishing alcohol to a minor. (See Civ. Code, § 1714(d).) For an instruction for
commercial liability, see CACI No. 422, Sale of Alcoholic Beverages to Obviously
Intoxicated Minors.
Under the statute, the minor may sue for the minor’s own injuries, or a third person
may sue for injuries caused by the minor. (Civ. Code, § 1714(d)(2).) If the minor is
the plaintiff, use the appropriate pronoun throughout. If the plaintiff is a third
person, select “[name of minor]” throughout and include “by [name of minor]” in
element 4.
Sources and Authority
• No Social Host Liability for Furnishing Alcohol. Civil Code section 1714(c).
• Exception to Nonliability. Civil Code section 1714(d).
• “Although the claim against [host] appears to fall within the section 1714,
subdivision (d) exception, plaintiffs cannot bootstrap respondents into that
exception by alleging that respondents conspired with or aided and abetted [host]
by providing alcoholic beverages that were furnished to [minor]. Subdivision (b)
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of section 1714 unequivocally states that ‘the furnishing of alcoholic beverages
is not the proximate cause of injuries resulting from intoxication . . . .’ This
provision necessarily precludes liability against anyone who furnished alcohol to
someone who caused injuries due to intoxication. The exception set forth in
subdivision (d) vitiates subdivision (b) for a very narrow class of claims: claims
against an adult who knowingly furnishes alcohol at his or her residence to a
person he or she knows is under the age of 21. Because respondents are not
alleged to have furnished alcohol to [minor] at their residences, plaintiffs’ claims
against them are barred because, as a matter of statutory law, plaintiffs cannot
establish that respondents’ actions proximately caused plaintiffs’ injuries.”
(Rybicki v. Carlson (2013) 216 Cal.App.4th 758, 764 [157 Cal.Rptr.3d 660].)
• “We shall make no effort to state definitively the meaning of the word
‘furnishes’ . . . . As used in a similar context the word ‘furnish’ has been said to
mean: ‘ “To supply; to offer for use, to give, to hand.” ’ It has also been said the
word ‘furnish’ is synonymous with the words ‘supply’ or ‘provide.’ In relation to
a physical object or substance, the word ‘furnish’ connotes possession or control
over the thing furnished by the one who furnishes it. The word ‘furnish’ implies
some type of affirmative action on the part of the furnisher; failure to protest or
attempt to stop another from imbibing an alcoholic beverage does not constitute
‘furnishing.’ ” (Bennett v. Letterly (1977) 74 Cal.App.3d 901, 904–905 [141
Cal.Rptr. 682], internal citations omitted.)
• “As used in liquor laws, ‘furnish’ means to provide in any way, and includes
giving as well as selling. . . . [¶] California courts have interpreted the terms
‘furnish’ and ‘furnished’ as requiring an affirmative act by the purported
furnisher to supply the alcoholic beverage to the drinker.” (Fiorini v. City
Brewing Co., LLC (2014) 231 Cal.App.4th 306, 320–321 [179 Cal.Rptr.3d 827]
[beverage manufacturer does not “furnish” beverage to the consumer], footnote
and internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1215 et seq.
1 Levy et al., California Torts, Ch. 1, Duty and Breach, § 1.21 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 19, Alcoholic Beverages: Civil
Liability, §§ 19.11, 19.13 (Matthew Bender)
1 California Points and Authorities, Ch. 15A, Alcoholic Beverages: Civil Liability
for Furnishing, § 15A.21 et seq. (Matthew Bender)
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428. Parental Liability (Nonstatutory)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because of [name of defendant]’s negligent supervision of [name of minor].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert one or both of the following:]
1. [observed [name of minor]’s dangerous behavior that led to [name
of plaintiff]’s injury;] [or]
1. [was aware of [name of minor]’s habits or tendencies that created
an unreasonable risk of harm to other persons;]
2. That [name of defendant] had the opportunity and ability to
control the conduct of [name of minor];
3. That [name of defendant] was negligent because [he/she/nonbinary
pronoun] failed to [insert one or both of the following:]
3. [exercise reasonable care to prevent [name of minor]’s conduct;]
[or]
3. [take reasonable precautions to prevent harm to others;]
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Renumbered from CACI No. 410 December 2013
Directions for Use
This instruction is not intended for use for claims of statutory liability against
parents or guardians based on a minor’s willful conduct, e.g., Civil Code section
1714.1 (willful misconduct), section 1714.3 (discharging firearm), or Education
Code section 48904(a)(1) (willful misconduct).
Sources and Authority
• “While it is the rule in California . . . that there is no vicarious liability on a
parent for the torts of a child there is ‘another rule of the law relating to the
torts of minors, which is somewhat in the nature of an exception, and that is that
a parent may become liable for an injury caused by the child where the parent’s
negligence made it possible for the child to cause the injury complained of, and
probable that it would do so.’ ” (Ellis v. D’Angelo (1953) 116 Cal.App.2d 310,
317 [253 P.2d 675], internal citations omitted.)
• “Parents are responsible for harm caused by their children only when it has been
shown that ‘the parents as reasonable persons previously became aware of habits
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or tendencies of the infant which made it likely that the child would misbehave
so that they should have restrained him in apposite conduct and actions.’ ”
(Reida v. Lund (1971) 18 Cal.App.3d 698, 702 [96 Cal.Rptr. 102], internal
citation omitted.)
• “In cases where the parent did not observe the child’s conduct which led to the
injury, the parent has been held liable where he had been aware of the child’s
dangerous propensity or habit and negligently failed to exercise proper control or
negligently failed to give appropriate warning. In other cases, where the parent
did not observe and was not in a position to control the conduct which
endangered the plaintiff, recovery was denied on the ground that there was no
showing that the parent knew of any dangerous tendency. What is said about
‘propensity’ or ‘habit’ in those cases has no applicability where the parent is
present and observes the dangerous behavior and has an opportunity to exercise
control but neglects to do so.” (Costello v. Hart (1972) 23 Cal.App.3d 898,
900–901 [100 Cal.Rptr. 554], internal citations omitted.)
• “ ‘The ability to control the child, rather than the relationship as such, is the
basis for a finding of liability on the part of a parent. . . . [The] absence of such
ability is fatal to a claim of legal responsibility.’ The ability to control is inferred
from the relationship of parent to minor child, as it is from the relationship of
custodian to charge; yet it may be disproved by the circumstances surrounding
the particular situation.” (Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1290
[232 Cal.Rptr. 634], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1378–1385
California Tort Guide (Cont.Ed.Bar 3d ed.) General Principles, § 1.25
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.12; Ch. 8,
Vicarious Liability, § 8.08 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.16
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 367A, Minors: Tort Actions,
§ 367A.32 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.131
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.130 (Matthew
Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors, § 100A.251
(Matthew Bender)
1 California Civil Practice: Torts §§ 3:32–3:35 (Thomson Reuters)
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429. Negligent Sexual Transmission of Disease
[Name of plaintiff] claims that [name of defendant] sexually transmitted
[specify sexually transmitted disease, e.g., HIV] to [him/her/nonbinary
pronoun]. [Name of defendant] may be negligent for this transmission if
[name of plaintiff] proves that [name of defendant] knew, or had reason to
know, that [he/she/nonbinary pronoun] was infected with [e.g., HIV].
New May 2017; Revised May 2020
Directions for Use
This instruction should be given with CACI No. 400, Negligence—Essential Factual
Elements. In a claim for negligent transmission of a sexually communicable disease,
the elements of negligence, duty, breach, and causation of harm must be proved.
(John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188 [45 Cal.Rptr.3d 316, 137
P.3d 153].)
One has a duty to avoid transmitting an infectious disease if that person should have
known of the infection (constructive knowledge). (John B., supra, 38 Cal.4th at pp.
1190–1191.) While the existence of a duty is a question of law for the court, what a
person should have known is a question of fact.
It must be noted that in John B., the court limited its holding on constructive
knowledge to the facts of the case before it, which involved a couple who were
engaged and subsequently married; a defendant who was alleged to have falsely
represented himself as monogamous and disease-free, and who insisted the couple
stop using condoms; and a plaintiff who agreed to stop using condoms in reliance
on those allegedly false representations. The court did not consider the existence or
scope of a duty for persons whose relationship did not extend beyond the sexual
encounter itself, whose relationship did not contemplate sexual exclusivity, who had
not represented themselves as disease-free, or who had not insisted on having sex
without condoms. (John B., supra, 38 Cal.4th at p. 1193.) Therefore, this instruction
may not be appropriate on facts that were expressly reserved in John B.
Sources and Authority
• “[A] person who unknowingly contracts a sexually transmitted disease such as
herpes may maintain an action for damages against one who either negligently
or through deceit infects her with the disease.” (Doe v. Roe (1990) 218
Cal.App.3d 1538, 1543 [267 Cal.Rptr. 564].)
• “[T]o be stricken with disease through another’s negligence is in legal
contemplation as it often is in the seriousness of consequences, no different from
being struck with an automobile through another’s negligence.” (John B., supra,
38 Cal.4th at p. 1188, original italics.)
• “Because ‘ “[a]ll persons are required to use ordinary care to prevent others
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being injured as a result of their conduct” ’, this court has repeatedly recognized
a cause of action for negligence not only against those who have actual
knowledge of unreasonable danger, but also against those who have constructive
knowledge of it.” (John B., supra, 38 Cal.4th at p. 1190, internal citation
omitted.)
• “ ‘[C]onstructive knowledge,’ which means knowledge ‘that one using reasonable
care or diligence should have, and therefore is attributed by law to a given
person’, encompasses a variety of mental states, ranging from one who is
deliberately indifferent in the face of an unjustifiably high risk of harm to one
who merely should know of a dangerous condition. (John B., supra, 38 Cal.4th
at pp. 1190–1191, internal citations omitted.)
• “[T]he tort of negligent transmission of HIV does not depend solely on actual
knowledge of HIV infection and would extend at least to those situations where
the actor, under the totality of the circumstances, has reason to know of the
infection. Under the reason-to-know standard, ‘the actor has information from
which a person of reasonable intelligence or of the superior intelligence of the
actor would infer that the fact in question exists, or that such person would
govern his conduct upon the assumption that such fact exists.’ In other words,
‘the actor has knowledge of facts from which a reasonable man of ordinary
intelligence or one of the superior intelligence of the actor would either infer the
existence of the fact in question or would regard its existence as so highly
probable that his conduct would be predicated upon the assumption that the fact
did exist.’ ” (John B., supra, 38 Cal.4th at p. 1191, internal citations omitted.)
• “[W]e are mindful that our precedents direct us to consider whether a duty of
care exists ‘ “on a case-by-case basis.” ’ Accordingly, our conclusion that a claim
of negligent transmission of HIV lies against those who know or at least have
reason to know of the disease must be understood in the context of the
allegations in this case, which involves a couple who were engaged and
subsequently married; a defendant who falsely represented himself as
monogamous and disease-free and insisted the couple stop using condoms; and a
plaintiff who agreed to stop using condoms in reliance on those false
representations. We need not consider the existence or scope of a duty for
persons whose relationship does not extend beyond the sexual encounter itself,
whose relationship does not contemplate sexual exclusivity, who have not
represented themselves as disease-free, or who have not insisted on having sex
without condoms.” (John B., supra, 38 Cal.4th at p. 1193.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1044
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.13
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2]
(Matthew Bender)
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16 California Points and Authorities, Ch. 165, Negligence, § 165.170 (Matthew
Bender)
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430. Causation: Substantial Factor
A substantial factor in causing harm is a factor that a reasonable person
would consider to have contributed to the harm. It must be more than a
remote or trivial factor. It does not have to be the only cause of the
harm.
[Conduct is not a substantial factor in causing harm if the same harm
would have occurred without that conduct.]
New September 2003; Revised October 2004, June 2005, December 2005, December
2007, May 2018, May 2020, November 2020
Directions for Use
As phrased, this definition of “substantial factor” subsumes the “but for” test of
causation, that is, “but for” the defendant’s conduct, the plaintiff’s harm would not
have occurred. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d
913, 819 P.2d 872]; see Rest.2d Torts, § 431.) The optional last sentence makes this
explicit, and in some cases it may be error not to give this sentence. (See Soule v.
GM Corp. (1994) 8 Cal.4th 548, 572–573 [34 Cal.Rptr.2d 607, 882 P.2d 298];
Rest.2d Torts, § 432(1).)
“Conduct,” in this context, refers to the culpable acts or omissions on which a claim
of legal fault is based, e.g., negligence, product defect, breach of contract, or
dangerous condition of public property. This is in contrast to an event that is not a
culpable act but that happens to occur in the chain of causation, e.g., that the
plaintiff’s alarm clock failed to go off, causing her to be at the location of the
accident at a time when she otherwise would not have been there. The reference to
“conduct” may be changed as appropriate to the facts of the case.
The “but for” test of the last optional sentence does not apply to concurrent
independent causes, which are multiple forces operating at the same time and
independently, each of which would have been sufficient by itself to bring about the
same harm. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 [135 Cal.Rptr.2d 629, 70
P.3d 1046]; Barton v. Owen (1977) 71 Cal.App.3d 484, 503–504 [139 Cal.Rptr.
494]; see Rest.2d Torts, § 432(2).) Accordingly, do not include the last sentence in a
case involving concurrent independent causes. (See also Major v. R.J. Reynolds
Tobacco Co. (2017) 14 Cal.App.5th 1179, 1198 [222 Cal.Rptr.3d 563] [court did not
err in refusing to give last sentence of instruction in case involving exposure to
carcinogens in cigarettes].)
In cases of multiple (concurrent dependent) causes, CACI No. 431, Causation:
Multiple Causes, should also be given.
A case in which the plaintiff’s claim is based on disease resulting from asbestos
exposure requires a different instruction. (Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953, 977 [67 Cal.Rptr.2d 16, 941 P.2d 1203]; Lopez v. The Hillshire
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Brands Co. (2019) 41 Cal.App.5th 679, 688 [254 Cal.Rptr.3d 377] [citing previous
discussion of issues related to asbestos cases in Directions for Use of this instruction
and CACI No. 435].) Give CACI No. 435, Causation for Asbestos-Related Cancer
Claims, and do not give this instruction. (But see Petitpas v. Ford Motor Co. (2017)
13 Cal.App.5th 261, 298–299 [220 Cal.Rptr.3d 185] [not error to give both CACI
Nos. 430 and 435 in case with both product liability and premises liability
defendants].)
Sources and Authority
• “The test for joint tort liability is set forth in section 431 of the Restatement of
Torts 2d, which provides: ‘The actor’s negligent conduct is a legal cause of harm
to another if (a) his conduct is a substantial factor in bringing about the harm,
and, (b) there is no rule of law relieving the actor from liability because of the
manner in which his negligence has resulted in the harm.’ Section 431 correctly
states California law as to the issue of causation in tort cases.” (Wilson v. Blue
Cross of So. Cal. (1990) 222 Cal.App.3d 660, 671–672 [271 Cal.Rptr. 876].)
• “California has definitively adopted the substantial factor test of the Restatement
Second of Torts for cause-in-fact determinations. Under that standard, a cause in
fact is something that is a substantial factor in bringing about the injury. The
substantial factor standard generally produces the same results as does the ‘but
for’ rule of causation which states that a defendant’s conduct is a cause of the
injury if the injury would not have occurred ‘but for’ that conduct. The
substantial factor standard, however, has been embraced as a clearer rule of
causation—one which subsumes the ‘but for’ test while reaching beyond it to
satisfactorily address other situations, such as those involving independent or
concurrent causes in fact.” (Rutherford, supra, 16 Cal.4th at pp. 968–969,
internal citations omitted.)
• “The term ‘substantial factor’ has not been judicially defined with specificity, and
indeed it has been observed that it is ‘neither possible nor desirable to reduce it
to any lower terms.’ This court has suggested that a force which plays only an
‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not
a substantial factor. Undue emphasis should not be placed on the term
‘substantial.’ For example, the substantial factor standard, formulated to aid
plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked
by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s injury but
is nevertheless urged as an insubstantial contribution to the injury. Misused in
this way, the substantial factor test ‘undermines the principles of comparative
negligence, under which a party is responsible for his or her share of negligence
and the harm caused thereby.’ ” (Rutherford, supra, 16 Cal.4th at pp. 968–969,
internal citations omitted.)
• “The substantial factor standard is a relatively broad one, requiring only that the
contribution of the individual cause be more than negligible or theoretical. Thus,
‘a force which plays only an “infinitesimal” or “theoretical” part in bringing
about injury, damage, or loss is not a substantial factor’, but a very minor force
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that does cause harm is a substantial factor. This rule honors the principle of
comparative fault.” (Bockrath, supra, 21 Cal.4th at p. 79, internal citations
omitted.)
• “[G]iving CACI No. 430, which states that a factor is not substantial when it is
‘remote or trivial,’ could be misleading in an asbestos case, where the long
latency period necessitates exposures will have been several years earlier. Jury
instructions therefore should not suggest that a long latency period, in which the
exposure was temporally ‘remote,’ precludes an otherwise sufficient asbestos
claim. ‘ “Remote” often connotes a time limitation. Nothing in Rutherford
suggests such a limitation; indeed, asbestos cases are brought long after exposure
due to the long-term latent nature of asbestos-related diseases.’ It was not error
for the court to give CACI No. 435 alone instead of CACI No. 430.” (Lopez,
supra, 41 Cal.App.5th at p. 688, internal citation omitted.)
• “The text of Restatement Torts second section 432 demonstrates how the
‘substantial factor’ test subsumes the traditional ‘but for’ test of causation.
Subsection (1) of section 432 provides: ‘Except as stated in Subsection (2), the
actor’s negligent conduct is not a substantial factor in bringing about harm to
another if the harm would have been sustained even if the actor had not been
negligent.’ . . . Subsection (2) states that if ‘two forces are actively operating
. . . and each of itself is sufficient to bring about harm to another, the actor’s
negligence may be found to be a substantial factor in bringing it about.’ ” (Viner,
supra, 30 Cal.4th at p. 1240, original italics.)
• “Because the ‘substantial factor’ test of causation subsumes the ‘but for’ test, the
‘but for’ test has been phrased in terms of ‘substantial factor,’ as follows, in the
context, as here, of a combination of causes dependent on one another: A
defendant’s negligent conduct may combine with another factor to cause harm; if
a defendant’s negligence was a substantial factor in causing the plaintiff’s harm,
then the defendant is responsible for the harm; a defendant cannot avoid
responsibility just because some other person, condition, or event was also a
substantial factor in causing the plaintiff’s harm; but conduct is not a substantial
factor in causing harm if the same harm would have occurred without that
conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 [164 Cal.Rptr.3d
309].)
• “Giving CACI No. 430 in its entirety also would have meant instructing the jury
on the principle of ‘but-for’ causation. Although generally subsumed within the
substantial factor test, ‘the but-for test is inappropriate in cases when two forces
are actively operating and each is sufficient to bring about the harm.’ . . . ‘If a
plaintiff [or decedent] has developed a disease after having been exposed to
multiple defendants’ asbestos products, medical science [is] unable to determine
which defendant’s product included the specific fibers that caused the plaintiff’s
[or decedent’s] disease.’ A ‘but-for’ instruction is therefore inappropriate in the
asbestos context, at least when there are multiple sources of exposure. (Lopez,
supra, 41 Cal.App.5th at p. 688, internal citations omitted.)
• “That the Use Notes caution against giving the more general CACI No. 430 in a
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mesothelioma case, when the more specific instruction CACI No. 435 is more
applicable, does not support a conclusion that it was error to give both
instructions. CACI No. 430 is a correct statement of the law relating to
substantial factor causation, even though, as Rutherford [v. Owens-Illinois, Inc.]
noted, more specific instructions also must be given in a mesothelioma case.
Because the more specific CACI No. 435 also was given, we do not find that the
trial court erred by giving both instructions.” (Petitpas, supra, 13 Cal.App.5th p.
299, original italics.)
• “A tort is a legal cause of injury only when it is a substantial factor in producing
the injury. If the external force of a vehicle accident was so severe that it would
have caused identical injuries notwithstanding an abstract ‘defect’ in the vehicle’s
collision safety, the defect cannot be considered a substantial factor in bringing
them about. [¶] The general causation instruction given by the trial court
correctly advised that plaintiff could not recover for a design defect unless it was
a ‘substantial factor’ in producing plaintiff’s ‘enhanced’ injuries. However, this
instruction dealt only by ‘negative implication’ with [defendant]’s theory that any
such defect was not a ‘substantial factor’ in this case because this particular
accident would have broken plaintiff’s ankles in any event. As we have seen,
[defendant] presented substantial evidence to that effect. [Defendant] was
therefore entitled to its special instruction, and the trial court’s refusal to give it
was error.” (Soule, supra, 8 Cal.4th at p. 572–573, original italics, footnote and
internal citations omitted.)
• “The first element of legal cause is cause in fact . . . . The ‘but for’ rule has
traditionally been applied to determine cause in fact. The Restatement formula
uses the term substantial factor ‘to denote the fact that the defendant’s conduct
has such an effect in producing the harm as to lead reasonable men to regard it
as a cause.’ ” (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1095 [44
Cal.Rptr.3d 14], internal citations omitted.)
• “If the accident would have happened anyway, whether the defendant was
negligent or not, then his or her negligence was not a cause in fact, and of
course cannot be the legal or responsible cause.” (Toste v. CalPortland
Construction (2016) 245 Cal.App.4th 362, 370 [199 Cal.Rptr.3d 522].)
• “We have recognized that proximate cause has two aspects. ‘ “One is cause in
fact. An act is a cause in fact if it is a necessary antecedent of an event.” ’ This
is sometimes referred to as ‘but-for’ causation. In cases where concurrent
independent causes contribute to an injury, we apply the ‘substantial factor’ test
of the Restatement Second of Torts, section 423, which subsumes traditional ‘but
for’ causation. This case does not involve concurrent independent causes, so the
‘but for’ test governs questions of factual causation.” (State Dept. of State
Hospitals v. Superior Court (2015) 61 Cal.4th 339, 354 [188 Cal.Rptr.3d 309,
349 P.3d 1013], original italics, footnote omitted.)
• “The second aspect of proximate cause ‘focuses on public policy considerations.
Because the purported [factual] causes of an event may be traced back to the
dawn of humanity, the law has imposed additional “limitations on liability other
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than simple causality.” [Citation.] “These additional limitations are related not
only to the degree of connection between the conduct and the injury, but also
with public policy.” [Citation.] Thus, “proximate cause ‘is ordinarily concerned,
not with the fact of causation, but with the various considerations of policy that
limit an actor’s responsibility for the consequences of his conduct.’ ”
[Citation.]’ ” (State Dept. of State Hospitals, supra, 61 Cal.4th at p. 353, internal
citation omitted.)
• “On the issue . . . of causation, as on other issues essential to the cause of
action for negligence, the plaintiff, in general, has the burden of proof. The
plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was a
cause in fact of the result. A mere possibility of such causation is not enough;
and when the matter remains one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, it becomes the duty of the court to
direct a verdict for the defendant.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095,
1104 [236 Cal.Rptr.3d 128].)
• “ ‘Whether a defendant’s conduct actually caused an injury is a question of fact
. . . that is ordinarily for the jury . . . .’ ‘[C]ausation in fact is ultimately a
matter of probability and common sense: “[A plaintiff] is not required to
eliminate entirely all possibility that the defendant’s conduct was not a cause. It
is enough that he introduces evidence from which reasonable [persons] may
conclude that it is more probable that the event was caused by the defendant
than that it was not. The fact of causation is incapable of mathematical proof,
since no [person] can say with absolute certainty what would have occurred if
the defendant had acted otherwise. If, as a matter of ordinary experience, a
particular act or omission might be expected to produce a particular result, and if
that result has in fact followed, the conclusion may be justified that the causal
relation exists. In drawing that conclusion, the triers of fact are permitted to
draw upon ordinary human experience as to the probabilities of the case.” ’ . . .
‘ “A mere possibility of . . . causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of the court to direct a verdict for the
defendant.” ’ ” (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029–1030
[68 Cal.Rptr.3d 897], internal citations omitted.)
• “Ordinarily, proximate cause is a question of fact which cannot be decided as a
matter of law from the allegations of a complaint. . . . Nevertheless, where the
facts are such that the only reasonable conclusion is an absence of causation, the
question is one of law, not of fact.” (Modisette v. Apple Inc. (2018) 30
Cal.App.5th 136, 152 [241 Cal.Rptr.3d 209].)
• “[E]vidence of causation ‘must rise to the level of a reasonable probability based
upon competent testimony. [Citations.] “A possible cause only becomes
‘probable’ when, in the absence of other reasonable causal explanations, it
becomes more likely than not that the injury was a result of its action.”
[Citation.] The defendant’s conduct is not the cause in fact of harm “ ‘where the
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evidence indicates that there is less than a probability, i.e., a 50-50 possibility or
a mere chance,’ ” that the harm would have ensued.’ ” (Bowman v. Wyatt (2010)
186 Cal.App.4th 286, 312 [111 Cal.Rptr.3d 787].)
• “However the test is phrased, causation in fact is ultimately a matter of
probability and common sense.” (Osborn v. Irwin Memorial Blood Bank (1992)
5 Cal.App.4th 234, 253 [7 Cal.Rptr.2d 101], relying on Rest.2d Torts, § 433B,
com. b.)
• “As a general matter, juries may decide issues of causation without hearing
expert testimony. But ‘[w]here the complexity of the causation issue is beyond
common experience, expert testimony is required to establish causation.’ ”
(Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 290 [236 Cal.Rptr.3d
802], internal citation omitted.)
• “The Supreme Court . . . set forth explicit guidelines for plaintiffs attempting to
allege injury resulting from exposure to toxic materials: A plaintiff must ‘allege
that he was exposed to each of the toxic materials claimed to have caused a
specific illness’; ‘identify each product that allegedly caused the injury’; allege
‘the toxins entered his body’ ‘as a result of the exposure’; allege that ‘he suffers
from a specific illness, and that each toxin that entered his body was a
substantial factor in bringing about, prolonging, or aggravating that illness’; and,
finally, allege that ‘each toxin he absorbed was manufactured or supplied by a
named defendant.’ ” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187,
1194 [130 Cal.Rptr.3d 571], quoting Bockrath, supra, 21 Cal.4th at p. 80,
footnote omitted.)
• “[M]ultiple sufficient causes exist not only when there are two causes each of
which is sufficient to cause the harm, but also when there are more than two
causes, partial combinations of which are sufficient to cause the harm. As such,
the trial court did not err in refusing to instruct the jury with the but-for test.”
(Major, supra, 14 Cal.App.5th at p. 1200.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1334–1341
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.13–1.15
1 Levy et al., California Torts, Ch. 2, Causation, § 2.02 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.22,
Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.71
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.260–165.263
(Matthew Bender)
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431. Causation: Multiple Causes
A person’s negligence may combine with another factor to cause harm. If
you find that [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm, then [name of defendant] is responsible
for the harm. [Name of defendant] cannot avoid responsibility just
because some other person, condition, or event was also a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction will apply only when negligence is the theory asserted against the
defendant. This instruction should be modified if the defendant is sued on a theory
of product liability or intentional tort.
Sources and Authority
• “ ‘Where several persons act in concert and damages result from their joint tort,
each person is held for the entire damages unless segregation as to causation can
be established. Even though persons are not acting in concert, if the results
produced by their acts are indivisible, each person is held liable for the whole.”
(Hughey v. Candoli (1958) 159 Cal.App.2d 231, 240 [323 P.2d 779].)
• “In cases where concurrent independent causes contribute to an injury, we apply
the ‘substantial factor’ test of the Restatement Second of Torts, section 423,
which subsumes traditional ‘but for’ causation.” (State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 352 fn. 12 [188 Cal.Rptr.3d 309, 349 P.3d
1012].)
• “A defendant’s negligent conduct may combine with another factor to cause
harm; if a defendant’s negligence was a substantial factor in causing the
plaintiff’s harm, then the defendant is responsible for the harm; a defendant
cannot avoid responsibility just because some other person, condition, or event
was also a substantial factor in causing the plaintiff’s harm; but conduct is not a
substantial factor in causing harm if the same harm would have occurred without
that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 [164
Cal.Rptr.3d 309].)
• “We are also not persuaded CACI No. 431 confused the jury or diluted the
standard for causation. The [defendants] conflate the legal concepts of substantial
factor for causation and concurrent cause. CACI No. 431 is necessary to explain
to the jury a ‘plaintiff need not prove that the defendant’s negligence was the
sole cause of plaintiff’s injury in order to recover. Rather it is sufficient that
defendant’s negligence is a legal cause of injury, even though it operated in
combination with other causes, whether tortious or nontortious.’ ” (Uriell v.
Regents of University of California (2015) 234 Cal.App.4th 735, 746−747 [184
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Cal.Rptr.3d 79] [CACI No. 431 properly explained concurrent substantial causes
to the jury].)
• “For there to be comparative fault there must be more than one contributory or
concurrent legal cause of the injury for which recompense is sought.” (Doupnik
v. General Motors Corp. (1991) 225 Cal.App.3d 849, 866 [275 Cal.Rptr. 715].)
• “Because we conclude that, in this case, in which causation was the most critical
contested issue and in which there was substantial evidence of multiple causes of
[decedent]’ s death, the trial court improperly [refused to instruct] the jury with
respect to concurrent causation . . . .” (Logacz v. Limansky (1999) 71
Cal.App.4th 1149, 1152 [84 Cal.Rptr.2d 257].)
• “Clearly, where a defendant’s negligence is a concurring cause of an injury, the
law regards it as a legal cause of the injury, regardless of the extent to which it
contributes to the injury.” (Espinosa v. Little Company of Mary Hospital (1995)
31 Cal.App.4th 1304, 1317–1318 [37 Cal.Rptr.2d 541], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1344
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.16
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.280–165.284
(Matthew Bender)
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432. Affirmative Defense—Causation: Third-Party Conduct as
Superseding Cause
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because of the later misconduct
of [insert name of third party]. To avoid legal responsibility for the harm,
[name of defendant] must prove all of the following:
1. That [name of third party]’s conduct occurred after the conduct of
[name of defendant];
2. That a reasonable person would consider [name of third party]’s
conduct a highly unusual or an extraordinary response to the
situation;
3. That [name of defendant] did not know and had no reason to
expect that [name of third party] would act in a
[negligent/wrongful] manner; and
4. That the kind of harm resulting from [name of third party]’s
conduct was different from the kind of harm that could have
been reasonably expected from [name of defendant]’s conduct.
New September 2003; Revised June 2011, December 2011
Directions for Use
A superseding cause instruction should be given if the issue is raised by the
evidence. (See Paverud v. Niagara Machine and Tool Works (1987) 189 Cal.App.3d
858, 863 [234 Cal.Rptr. 585]; disapproved in Soule v. General Motors Corp. (1994)
8 Cal. 4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d. 298] [there is no rule of
automatic reversal or inherent prejudice applicable to any category of civil
instructional error].) The issue of superseding cause should be addressed directly in
a specific instruction. (See Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 10
[116 Cal.Rptr. 575]; disapproved in Soule, supra, 8 Cal. 4th at p. 580.)
Superseding cause is an affirmative defense that must be proved by the defendant.
(Maupin v. Widling (1987) 192 Cal.App.3d 568, 578 [237 Cal.Rptr. 521].) Therefore,
the elements of this instruction are phrased in the affirmative and require the
defendant to prove that they are all present in order to establish superseding cause.
(See Martinez v. Vintage Petroleum (1998) 68 Cal.App.4th 695, 702 [80 Cal.Rptr.2d
449].)
If, as a matter of law, a party is liable for subsequent negligence, as in subsequent
medical negligence, this instruction should not be given.
Sources and Authority
• “ ‘It is well established . . . that one’s general duty to exercise due care includes
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the duty not to place another person in a situation in which the other person is
exposed to an unreasonable risk of harm through the reasonably foreseeable
conduct (including the reasonably foreseeable negligent conduct) of a third
person.’ In determining whether one has a duty to prevent injury that is the
result of third party conduct, the touchstone of the analysis is the foreseeability
of that intervening conduct.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132,
1148 [210 Cal.Rptr.3d 283, 384 P.3d 283], internal citation omitted.)
• “This issue is concerned with whether or not, assuming that a defendant was
negligent and that his negligence was an actual cause of the plaintiff’s injury, the
defendant should be held responsible for the plaintiff’s injury where the injury
was brought about by a later cause of independent origin. This question, in turn,
revolves around a determination of whether the later cause of independent origin,
commonly referred to as an intervening cause, was foreseeable by the defendant
or, if not foreseeable, whether it caused injury of a type which was foreseeable.
If either of these questions is answered in the affirmative, then the defendant is
not relieved from liability towards the plaintiff; if, however, it is determined that
the intervening cause was not foreseeable and that the results which it caused
were not foreseeable, then the intervening cause becomes a supervening cause
and the defendant is relieved from liability for the plaintiff’s injuries.” (Akins v.
County of Sonoma (1967) 67 Cal.2d 185, 199 [60 Cal.Rptr. 499, 430 P.2d 57].)
• “ ‘A superseding cause is an act of a third person or other force which by its
intervention prevents the actor from being liable for harm to another which his
antecedent negligence is a substantial factor in bringing about.’ If the cause is
superseding, it relieves the actor from liability whether or not that person’s
negligence was a substantial factor in bringing about the harm.” (Brewer v.
Teano (1995) 40 Cal.App.4th 1024, 1031 [47 Cal.Rptr.2d 348], internal citation
omitted; see Restatement 2d of Torts, § 440.)
• “The rules set forth in sections 442–453 of the Restatement of Torts for
determining whether an intervening act of a third person constitutes a
superseding cause which prevents antecedent negligence of the defendant from
being a proximate cause of the harm complained of have been accepted in
California. Under these rules the fact that an intervening act of a third person is
done in a negligent manner does not make it a superseding cause if a reasonable
man knowing the situation existing when the act of the third person is done
would not regard it as highly extraordinary that the third person so acted or the
act is a normal response to a situation created by the defendant’s conduct and
the manner in which the intervening act is done is not extraordinarily negligent.”
(Stewart v. Cox (1961) 55 Cal.2d 857, 864 [13 Cal.Rptr. 521, 362 P.2d 345],
internal citations omitted.)
• “This test is but another way of saying that foreseeable intervening ordinary
negligence will not supersede but such negligence, if ‘highly extraordinary,’ will
supersede. [¶] ‘[T]he fact that an intervening act of a third person is done in a
negligent manner does not make it a superseding cause if . . . the act is a
normal response to a situation created by the defendant’s conduct and the
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manner in which the intervening act is done is not extraordinarily
negligent. . . .’ This test is but another way of saying a normal, but negligent,
intervening response will not supersede but an extraordinarily negligent response
will supersede.” (Martinez, supra, 68 Cal.App.4th at p. 701 [holding that highly
extraordinary negligence or extraordinarily negligent response obviates need to
prove unforeseeable risk of harm].)
• “Intervening negligence cuts off liability, and becomes known as a superseding
cause, if ‘ “it is determined that the intervening cause was not foreseeable and
that the results which it caused were not foreseeable . . . .” ’ ” (Martinez, supra,
68 Cal.App.4th at pp. 700–701, original italics.)
• “ ‘[T]he defense of “superseding cause[]” . . . absolves [the original] tortfeasor,
even though his conduct was a substantial contributing factor, when an
independent event [subsequently] intervenes in the chain of causation, producing
harm of a kind and degree so far beyond the risk the original tortfeasor should
have foreseen that the law deems it unfair to hold him responsible.’ . . . [¶] To
determine whether an independent intervening act was reasonably foreseeable,
we look to the act and the nature of the harm suffered. To qualify as a
superseding cause so as to relieve the defendant from liability for the plaintiff’s
injuries, both the intervening act and the results of that act must not be
foreseeable. Significantly, ‘what is required to be foreseeable is the general
character of the event or harm . . . not its precise nature or manner of
occurrence.’ ” (Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th
746, 755–756 [155 Cal.Rptr.3d 693], original italics, internal citations omitted.)
• “ ‘Third party negligence which is the immediate cause of an injury may be
viewed as a superseding cause when it is so highly extraordinary as to be
unforeseeable. . . . “The foreseeability required is of the risk of harm, not of the
particular intervening act. In other words, the defendant may be liable if his
conduct was ‘a substantial factor’ in bringing about the harm, though he neither
foresaw nor should have foreseen the extent of the harm or the manner in which
it occurred.” . . . It must appear that the intervening act has produced “harm of
a kind and degree so far beyond the risk the original tortfeasor should have
foreseen that the law deems it unfair to hold him responsible.” . . . [¶] . . .
[F]oreseeability is a question for the jury unless undisputed facts leave no room
for a reasonable difference of opinion. . . . Thus, the issue of superseding cause
is generally one of fact. . . .’ ” (Lawson v. Safeway Inc. (2010) 191 Cal.App.4th
400, 417 [119 Cal.Rptr.3d 366].)
• “The intervening negligence (or even recklessness) of a third party will not be
considered a superseding cause if it is a ‘normal response to a situation created
by the defendant’s conduct’ and is therefore ‘ “. . . within the scope of the
reasons [for] imposing the duty upon [the defendant] to refrain from negligent
conduct” ’ in the first place.” (Pedeferri v. Seidner Enterprises (2013) 216
Cal.App.4th 359, 373 [163 Cal.Rptr.3d 55], internal citations omitted.)
• “Under the theory of supervening cause, the chain of causation that would
otherwise flow from an initial negligent act is broken when an independent act
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intervenes and supersedes the initial act.” (Hardison v. Bushnell (1993) 18
Cal.App.4th 22, 26 [22 Cal.Rptr.2d 106].)
• “[T]he intervening and superseding act itself need not necessarily be a negligent
or intentional tort. For example, the culpability of the third person committing
the intervening or superseding act is just one factor in determining if an
intervening force is a new and independent superseding cause.” (Ash v. North
American Title Co. (2014) 223 Cal.App.4th 1258, 1277 [168 Cal.Rptr.3d 499]
[unforeseeable bankruptcy can be superseding cause].)
• “Whether an intervening force is superseding or not generally presents a
question of fact, but becomes a matter of law where only one reasonable
conclusion may be reached.” (Ash, supra, 223 Cal.App.4th at p. 1274.)
• “[O]ne does not reach the issue of superseding cause until one is satisfied that
the record supports a finding of negligence on the part of the defendant and a
further finding that but for such negligence the accident would not have
occurred. This, at least, has been the approach of our Supreme Court. . . .
[S]uch an approach may be analytically wrong, because a finding that plaintiff’s
harm was due to a superseding cause, is, in reality, a finding that the cause
which injured the plaintiff was not a part of the risk created by the defendant.”
(Ewart v. Southern California Gas Co. (1965) 237 Cal.App.2d 163, 169 [46
Cal.Rptr. 631].)
• “The potential for error in the [instruction] lies in the ambiguity of the words
‘extraordinary’ and ‘abnormal.’ These terms could be interpreted as meaning
either: A. Unforeseeable (unpredictable, statistically extremely improbable, etc.);
or B. Outside the scope of that which would be done by ordinary man. The
instruction was correct if interpreted in sense A, since defendant’s conduct would
not in fact give rise to liability if the criminal act were unforeseeable. However,
the instruction was incorrect if interpreted in sense B. Such an interpretation
would almost invariably preclude liability for failure to police against criminal
conduct, since there are very few situations indeed to which ordinary men would
respond by committing serious criminal offenses. Yet it is not the law that one
has no duty to protect against foreseeable criminal acts.” (Campodonico v. State
Auto Parks, Inc. (1970) 10 Cal.App.3d 803, 807 [89 Cal.Rptr. 270], original
italics.)
• “Proximate cause analysis is also concerned with intervening forces operating
independent of defendant’s conduct. Multiple elements are weighed in
determining whether an intervening force is a superseding cause of harm to the
plaintiff, thus absolving defendant from liability: ‘(a) the fact that its intervention
brings about harm different in kind from that which would otherwise have
resulted from the actor’s negligence; [¶] (b) the fact that its operation or the
consequences thereof appear after the event to be extraordinary rather than
normal in view of the circumstances existing at the time of its operation; [¶] (c)
the fact that the intervening force is operating independently of any situation
created by the actor’s negligence, or, on the other hand, is or is not a normal
result of such a situation; [¶] (d) the fact that the operation of the intervening
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force is due to a third person’s act or to his failure to act; [¶] (e) the fact that the
intervening force is due to an act of a third person which is wrongful toward the
other and as such subjects the third person to liability to him; [¶] (f) the degree
of culpability of a wrongful act of a third person which sets the intervening
force in motion.’ ” (Novak v. Continental Tire North America (2018) 22
Cal.App.5th 189, 197 [231 Cal.Rptr.3d 324], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1348, 1349
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-O, Causation
Issues, ¶ 2:2444 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶ 2:1326 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.22
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.74
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.321
(Matthew Bender)
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433. Affirmative Defense—Causation: Intentional Tort/Criminal Act
as Superseding Cause
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because of the later [criminal/
intentional] conduct of [insert name of third party]. [Name of defendant] is
not responsible for [name of plaintiff]’s harm if [name of defendant] proves
[both/all] of the following:
[1. That [name of third party] committed [an intentional/a criminal]
act;]]
2. That [name of third party]’s [intentional/criminal] conduct
happened after the conduct of [name of defendant]; and
3. That [name of defendant] did not know and could not have
reasonably foreseen that another person would be likely to take
advantage of the situation created by [name of defendant]’s
conduct to commit this type of act.
New September 2003; Revised June 2014
Directions for Use
Give the optional first element if there is a dispute of fact as to whether the third
party actually committed the criminal or intentional act that is alleged to constitute
superseding cause. The element may be modified to describe the alleged act more
particularly if desired.
Sources and Authority
• “California has adopted the modern view embodied in section 448 of the
Restatement Second of Torts: ‘The act of a third person in committing an
intentional tort or crime is a superseding cause of harm to another resulting
therefrom, although the actor’s negligent conduct created a situation which
afforded an opportunity to the third person to commit such a tort or crime,
unless the actor at the time of his negligent conduct realized or should have
realized the likelihood that such a situation might be created, and that a third
person might avail himself of the opportunity to commit such a tort or crime.’
Present California decisions establish that a criminal act will be deemed a
superseding cause unless it involves a particular and foreseeable hazard inflicted
upon a member of a foreseeable class.” (Kane v. Hartford Accident and
Indemnity Co. (1979) 98 Cal.App.3d 350, 360 [159 Cal.Rptr. 446].)
• “[A]n intervening act does not amount to a ‘superseding cause’ relieving the
negligent defendant of liability if it was reasonably foreseeable: ‘[An] actor may
be liable if his negligence is a substantial factor in causing an injury, and he is
not relieved of liability because of the intervening act of a third person if such
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act was reasonably foreseeable at the time of his negligent conduct.’ Moreover,
under section 449 of the Restatement Second of Torts that foreseeability may
arise directly from the risk created by the original act of negligence: ‘If the
likelihood that a third person may act in a particular manner is the hazard or one
of the hazards which makes the actor negligent, such an act whether innocent,
negligent, intentionally tortious, or criminal does not prevent the actor from
being liable for harm caused thereby.’ ” (Landeros v. Flood (1976) 17 Cal.3d
399, 411 [131 Cal.Rptr. 69, 551 P.2d 389], internal citations omitted.)
• “The trial court’s modification of CACI No. 433 appears to have been intended
to apply the principle of negligence law that unforeseeable criminal conduct cuts
off a tortfeasor’s liability. CACI No. 433 sets forth the heightened foreseeability
that is required before an intervening criminal act will relieve a defendant of
liability for negligence. A third party’s criminal conduct becomes actionable if
the negligent tortfeasor has created a situation that facilitated the crime.” (Collins
v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1508 [155 Cal.Rptr.3d 137],
internal citations omitted.)
• “Criminal conduct which causes injury will ordinarily be deemed the proximate
cause of an injury, superseding any prior negligence which might otherwise be
deemed a contributing cause.” (Koepke v. Loo (1993) 18 Cal.App.4th 1444, 1449
[23 Cal.Rptr.2d 34].)
• “The common law rule that an intervening criminal act is, by its very nature, a
superseding cause has lost its universal application and its dogmatic rigidity.”
(Kane, supra, 98 Cal.App.3d at p. 360.)
• “CACI No. 433 is neither a concurrent causation nor a comparative fault
instruction allowing the jury to apportion relative degrees of fault. CACI No.
433, a superseding cause instruction, applies when a third party takes advantage
of or utilizes a situation created by the tortfeasor’s conduct to engage in
intentional or criminal conduct inflicting harm on another person.” (Crouch v.
Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1023
[253 Cal.Rptr.3d 1].)
• “CACI No. 433 erroneously allowed [defendant] a complete defense based on a
heightened standard of foreseeability inapplicable to plaintiffs’ design defect
claims. Specifically, CACI No. 433 allowed [defendant] to secure a defense
verdict by showing it ‘could not have reasonably foreseen that another person
would be likely to take advantage of the situation created by . . . [defendant]’s
conduct to commit this type of act.’ However, [defendant] did not create a
situation that [third party] took advantage of in order to commit a crime. [Third
party] did not throw the concrete at [decedent]’s truck because he perceived a
defective angle or composition of the windshield. CACI No. 433 erroneously
introduced a test that does not make sense in this products liability case.”
(Collins, supra, 214 Cal.App.4th at p. 1509.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1365, 1367
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California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.303,
165.322 (Matthew Bender)
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434. Alternative Causation
You may decide that more than one of the defendants was negligent, but
that the negligence of only one of them could have actually caused [name
of plaintiff]’s harm. If you cannot decide which defendant caused [name
of plaintiff]’s harm, you must decide that each defendant is responsible
for the harm.
However, if a defendant proves that [he/she/nonbinary pronoun/it] did not
cause [name of plaintiff]’s harm, then you must conclude that defendant
is not responsible.
New September 2003; Revised November 2019
Directions for Use
This instruction is based on the rule stated in the case of Summers v. Tice (1948) 33
Cal.2d 80, 86 [199 P.2d 1], in which the court held that the burden of proof on
causation shifted to the two defendants to prove that each was not the cause of
plaintiff’s harm.
Sources and Authority
• “When we consider the relative position of the parties and the results that would
flow if plaintiff was required to pin the injury on one of the defendants only, a
requirement that the burden of proof on that subject be shifted to defendants
becomes manifest. They are both wrongdoers—both negligent toward plaintiff.
They brought about a situation where the negligence of one of them injured the
plaintiff, hence it should rest with them each to absolve himself if he can. The
injured party has been placed by defendants in the unfair position of pointing to
which defendant caused the harm. If one can escape the other may also and
plaintiff is remediless.” (Summers, supra, 33 Cal.2d 80 at p. 86.)
• “California courts have applied the [Summers] alternative liability theory only
when all potential tortfeasors have been joined as defendants.” (Setliff v. E. I. Du
Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1534–1535 [38
Cal.Rptr.2d 763].)
• “There is an important difference between the situation involved in Summers and
the present case. There, all the parties who were or could have been responsible
for the harm to the plaintiff were joined as defendants. Here, by contrast, there
are approximately 200 drug companies which made DES, any of which might
have manufactured the injury-producing drug.” (Sindell v. Abbott Laboratories
(1980) 26 Cal.3d 588, 602 [163 Cal.Rptr. 132, 607 P.2d 924].)
• “According to the Restatement, the burden of proof shifts to the defendants only
if the plaintiff can demonstrate that all defendants acted tortiously and that the
harm resulted from the conduct of one of them. (Rest.2d Torts, § 433B, com. g,
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p. 446.) It goes on to state that the rule thus far has been applied only where all
the actors involved are joined as defendants and where the conduct of all is
simultaneous in time, but cases might arise in which some modification of the
rule would be necessary if one of the actors is or cannot be joined, or because of
the effects of lapse of time, or other circumstances.” (Sindell, supra, 26 Cal.3d at
p. 602, fn. 16.)
• “Summers applies to multiple tortfeasors not to multiple defendants, and it is
immaterial in this case that the matter went to trial only as against respondent,
for A, B, and/or C was also a tortfeasor.” (Vahey v. Sacia (1981) 126 Cal.App.3d
171, 177 [178 Cal.Rptr. 559], original italics, footnote omitted.)
• “[Restatement Second of Torts] Section 433B, subdivision (3) sets forth the rule
of Summers v. Tice, supra, 33 Cal. 2d 80, using its facts as an example.
Comment h provides: ‘The cases thus far decided in which the rule stated in
Subsection (3) has been applied all have been cases in which all of the actors
involved have been joined as defendants. All of these cases have involved
conduct simultaneous in time, or substantially so, and all of them have involved
conduct of substantially the same character, creating substantially the same risk
of harm, on the part of each actor. It is possible that cases may arise in which
some modification of the rule stated may be necessary because of complications
arising from the fact that one of the actors involved is not or cannot be joined as
a defendant, or because of the effect of lapse of time, or because of substantial
differences in the character of the conduct of the actors or the risks which they
have created. Since such cases have not arisen, and the situations which might
arise are difficult to forecast, no attempt is made to deal with such problems in
this Section. The rule stated in Subsection (3) is not intended to preclude
possible modification if such situations call for it.’ ” (Setliff, supra, 32
Cal.App.4th at p. 1535.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1345
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.16
1 Levy et al., California Torts, Ch. 2, Causation, § 2.03 (Matthew Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.72
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.330 (Matthew
Bender)
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435. Causation for Asbestos-Related Cancer Claims
A substantial factor in causing harm is a factor that a reasonable person
would consider to have contributed to the harm. It does not have to be
the only cause of the harm.
[Name of plaintiff] may prove that exposure to asbestos from [name of
defendant]’s [product/ [,/or] activities/ [,/or] property/ [,/or] operations]
was a substantial factor causing [his/her/nonbinary pronoun/[name of
decedent]’s] illness by showing, through expert testimony, that there is a
reasonable medical probability that the exposure was a substantial factor
contributing to [his/her/nonbinary pronoun] risk of developing cancer.
New September 2003; Revised December 2007, May 2018, November 2018, May
2020, November 2020
Directions for Use
This instruction is to be given in a case in which the plaintiff’s claim is that the
plaintiff contracted an asbestos-related disease from exposure to the defendant’s
asbestos-containing product or asbestos-related activities. (See Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 982–983 [67 Cal.Rptr.2d 16, 941 P.2d 1203];
Lopez v. The Hillshire Brands Co. (2019) 41 Cal.App.5th 679, 688 [254 Cal.Rptr.3d
377] [addressing causation standard for exposure to asbestos from a defendant’s
property or operation when the defendant is not a manufacturer or supplier of
asbestos-containing products]; but see Petitpas v. Ford Motor Co. (2017) 13
Cal.App.5th 261, 290 [220 Cal.Rptr.3d 185] [court gave CACI No. 435 with regard
to premises liability defendant].) If the plaintiff’s claim is based on anything other
than disease resulting from asbestos exposure, then this instruction is not to be
given.
If the issue of medical causation is tried separately, revise this instruction to focus
on that issue.
If necessary, CACI No. 431, Causation: Multiple Causes, may also be given.
Sources and Authority
• “In the context of a cause of action for asbestos-related latent injuries, the
plaintiff must first establish some threshold exposure to the defendant’s defective
asbestos-containing products, and must further establish in reasonable medical
probability that a particular exposure or series of exposures was a ‘legal cause’
of his injury, i.e., a substantial factor in bringing about the injury. In an
asbestos-related cancer case, the plaintiff need not prove that fibers from the
defendant’s product were the ones, or among the ones, that actually began the
process of malignant cellular growth. Instead, the plaintiff may meet the burden
of proving that exposure to defendant’s product was a substantial factor causing
the illness by showing that in reasonable medical probability it was a substantial
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factor contributing to the plaintiff’s or decedent’s risk of developing cancer. The
jury should be so instructed. The standard instructions on substantial factor and
concurrent causation remain correct in this context and should also be given.”
(Rutherford, supra, 16 Cal.4th at pp. 982–983, original italics, internal citation
and footnotes omitted.)
• “Squarely faced with the issue of CACI No. 435’s correctness for a non-
manufacturer/non-supplier, we conclude that CACI No. 435 applied to plaintiffs’
asbestos-related claim, even though [defendant] is not a manufacturer or supplier
of asbestos. [¶] CACI No. 435 was developed to address the special
considerations that apply when the injury was allegedly caused by asbestos
exposure. These include the long latency period, the occupational settings that
often expose workers to multiple forms and brands of asbestos, and, in a case of
exposure to asbestos from multiple sources, the difficulty of proving that a
plaintiff’s or decedent’s illness was caused by particular asbestos fibers traceable
to the defendant. These considerations are similar whether the defendant was a
manufacturer/supplier or otherwise created the exposure to asbestos.” (Lopez,
supra, 41 Cal.App.5th at p. 687, internal citation omitted.)
• “The term ‘substantial factor’ has not been judicially defined with specificity, and
indeed it has been observed that it is ‘neither possible nor desirable to reduce it
to any lower terms.’ This court has suggested that a force which plays only an
‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not
a substantial factor. Undue emphasis should not be placed on the term
‘substantial.’ For example, the substantial factor standard, formulated to aid
plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked
by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s injury but
is nevertheless urged as an insubstantial contribution to the injury. Misused in
this way, the substantial factor test ‘undermines the principles of comparative
negligence, under which a party is responsible for his or her share of negligence
and the harm caused thereby.’ ” (Rutherford, supra, 16 Cal.4th at p. 969, internal
citations omitted.)
• “[A] very minor force that does cause harm is a substantial factor. This rule
honors the principle of comparative fault.” (Bockrath v. Aldrich Chem. Co.
(1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398], internal citation
omitted.)
• “Contrary to defendant’s assertion, the California Supreme Court’s decision in
Viner v. Sweet (2003) 30 Cal.4th 1232 [135 Cal.Rptr.2d 629, 70 P.3d 1046]
(Viner) did not alter the causation requirement in asbestos-related cases. In Viner,
the court noted that subsection (1) of section 432 of the Restatement Second of
Torts, which provides that ‘the actor’s negligent conduct is not a substantial
factor in bringing about harm to another if the harm would have been sustained
even if the actor had not been negligent,’ ‘demonstrates how the “substantial
factor” test subsumes the traditional “but for” test of causation.’ Defendant
argues that Viner required plaintiffs to show that defendant’s product
‘independently caused [plaintiff’s] injury or that, but for that exposure, [plaintiff]
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would not have contracted lung cancer.’ Viner, however, is a legal malpractice
case. It does not address the explicit holding in Rutherford that ‘plaintiffs may
prove causation in asbestos-related cancer cases by demonstrating that the
plaintiff’s exposure to defendant’s asbestos-containing product in reasonable
medical probability was a substantial factor in contributing to the aggregate dose
of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of
developing asbestos-related cancer, without the need to demonstrate that fibers
from the defendant’s particular product were the ones, or among the ones, that
actually produced the malignant growth.’ ” Viner is consistent with Rutherford
insofar as Rutherford requires proof that an individual asbestos-containing
product is a substantial factor contributing to the plaintiff’s risk or probability of
developing cancer.” (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 998,
fn. 3 [35 Cal.Rptr.3d 144], internal citations omitted.)
• “ ‘A threshold issue in asbestos litigation is exposure to the defendant’s
product. . . . If there has been no exposure, there is no causation.’ Plaintiffs bear
the burden of ‘demonstrating that exposure to [defendant’s] asbestos products
was, in reasonable medical probability, a substantial factor in causing or
contributing to [plaintiff’s] risk of developing cancer.’ ‘Factors relevant to
assessing whether such a medical probability exists include frequency of
exposure, regularity of exposure and proximity of the asbestos product to
[plaintiff].’ Therefore, ‘[plaintiffs] cannot prevail against [defendant] without
evidence that [plaintiff] was exposed to asbestos-containing materials
manufactured or furnished by [defendant] with enough frequency and regularity
as to show a reasonable medical probability that this exposure was a factor in
causing the plaintiff’s injuries.’ ” (Whitmire v. Ingersoll-Rand Co. (2010) 184
Cal.App.4th 1078, 1084 [109 Cal.Rptr.3d 371], internal citations omitted.)
• “[G]iving CACI No. 430, which states that a factor is not substantial when it is
‘remote or trivial,’ could be misleading in an asbestos case, where the long
latency period necessitates exposures will have been several years earlier. Jury
instructions therefore should not suggest that a long latency period, in which the
exposure was temporally ‘remote,’ precludes an otherwise sufficient asbestos
claim. ‘ “Remote” often connotes a time limitation. Nothing in Rutherford
suggests such a limitation; indeed, asbestos cases are brought long after exposure
due to the long-term latent nature of asbestos-related diseases.’ It was not error
for the court to give CACI No. 435 alone instead of CACI No. 430.” (Lopez,
supra, 41 Cal.App.5th at p. 688, internal citation omitted.)
• “That the Use Notes caution against giving the more general CACI No. 430 in a
mesothelioma case, when the more specific instruction CACI No. 435 is more
applicable, does not support a conclusion that it was error to give both
instructions. CACI No. 430 is a correct statement of the law relating to
substantial factor causation, even though, as Rutherford noted, more specific
instructions also must be given in a mesothelioma case. Because the more
specific CACI No. 435 also was given, we do not find that the trial court erred
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by giving both instructions.” (Petitpas, supra, 13 Cal.App.5th at p. 299, original
italics.)
• “Further, ‘[t]he mere “possibility” of exposure’ is insufficient to establish
causation. ‘[P]roof that raises mere speculation, suspicion, surmise, guess or
conjecture is not enough to sustain [the plaintiff’s] burden’ of persuasion.” (Izell
v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 969 [180 Cal.Rptr.3d 382],
internal citations omitted.)
• “[T]here is no requirement that plaintiffs show that [defendant] was the
exclusive, or even the primary, supplier of asbestos-containing gaskets to
PG&E.” (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 981 [227
Cal.Rptr.3d 321].)
• “[T]o establish exposure in an asbestos case a plaintiff has no obligation to
prove a specific exposure to a specific product on a specific date or time. Rather,
it is sufficient to establish ‘that defendant’s product was definitely at his work
site and that it was sufficiently prevalent to warrant an inference that plaintiff
was exposed to it’ during his work there.” (Turley, supra, 18 Cal.App.5th at p.
985.)
• “To support an allocation of liability to another party in an asbestos case, a
defendant must ‘present evidence that the aggregate dose of asbestos particles
arising from’ exposure to that party’s asbestos ‘constituted a substantial factor in
the causation of [the decedent’s] cancer.’ ” (Soto v. BorgWarner Morse TEC Inc.
(2015) 239 Cal.App.4th 165, 205 [191 Cal.Rptr.3d 263].)
• “ ‘[G]iven the long latency period of asbestos-related disease, and the
occupational settings that commonly exposed the worker to multiple forms and
brands of asbestos products with varying degrees of toxicity,’ our Supreme Court
has held that a plaintiff ‘need not prove with medical exactitude that fibers from
a particular defendant’s asbestos-containing products were those, or among those,
that actually began the cellular process of malignancy.’ Rather, a ‘plaintiff may
meet the burden of proving that exposure to defendant’s product was a
substantial factor causing the illness by showing that in reasonable medical
probability it was a substantial factor contributing to the plaintiff’s or decedent’s
risk of developing cancer.’ ” (Izell, supra, 231 Cal.App.4th at p. 975, original
italics, internal citation omitted.)
• “Many factors are relevant in assessing the medical probability that an exposure
contributed to plaintiff’s asbestos disease. Frequency of exposure, regularity of
exposure, and proximity of the asbestos product to plaintiff are certainly
relevant, although these considerations should not be determinative in every
case. [Citation.] Additional factors may also be significant in individual cases,
such as the type of asbestos product to which plaintiff was exposed, the type of
injury suffered by plaintiff, and other possible sources of plaintiff’s injury.
[Citations.] ‘Ultimately, the sufficiency of the evidence of causation will depend
on the unique circumstances of each case.’ [Citation.] ” (Paulus v. Crane Co.
(2014) 224 Cal.App.4th 1357, 1363–1364 [169 Cal.Rptr.3d 373].)
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• “In this case, [defendant] argues the trial court’s refusal to give its proposed
instruction was error because the instruction set forth ‘the requirement in
Rutherford that causation be decided by taking into account “the length,
frequency, proximity and intensity of exposure, the peculiar properties of the
individual product, [and] any other potential causes to which the disease could
be attributed.” ’ But Rutherford does not require the jury to take these factors
into account when deciding whether a plaintiff’s exposure to an asbestos-
containing product was a substantial factor in causing mesothelioma. Instead,
those factors are ones that a medical expert may rely upon in forming his or her
expert medical opinion.” (Davis v. Honeywell Internat. Inc. (2016) 245
Cal.App.4th 477, 495 [199 Cal.Rptr.3d 583], internal citation omitted.)
• “Mere presence at a site where asbestos was present is insufficient to establish
legally significant asbestos exposure.” (Shiffer v. CBS Corp. (2015) 240
Cal.App.4th 246, 252 [192 Cal.Rptr.3d 346].)
• “We disagree with the trial court’s view that Rutherford mandates that a medical
doctor must expressly link together the evidence of substantial factor causation.
The Rutherford court did not create a requirement that specific words must be
recited by appellant’s expert. Nor did the Rutherford court specify that the
testifying expert in asbestos cases must always be ‘somebody with an M.D. after
his name.’ The Rutherford court agreed with the Lineaweaver court that ‘the
reference to “medical probability” in the standard “is no more than a recognition
that asbestos injury cases (like medical malpractice cases) involve the use of
medical evidence.” [Citation.]’ The Supreme Court has since clarified that
medical evidence does not necessarily have to be provided by a medical doctor.”
(Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 675 [156 Cal.Rptr.3d
90], internal citations omitted.)
• “Nothing in Rutherford precludes a plaintiff from establishing legal causation
through opinion testimony by a competent medical expert to the effect that every
exposure to respirable asbestos contributes to the risk of developing
mesothelioma. On the contrary, Rutherford acknowledges the scientific debate
between the ‘every exposure’ and ‘insignificant exposure’ camps, and recognizes
that the conflict is one for the jury to resolve.” (Izell, supra, 231 Cal.App.4th at
p. 977.)
• “[T]he identified-exposure theory is a more rigorous standard of causation than
the every-exposure theory. As a single example of the difference, we note
[expert]’s statement that it ‘takes significant exposures’ to increase the risk of
disease. This statement uses the plural ‘exposures’ and also requires that those
exposures be ‘significant.’ The use of ‘significant’ as a limiting modifier appears
to be connected to [expert]’s earlier testimony about the concentrations of
airborne asbestos created by particular activities done by [plaintiff], such as
filing, sanding and using an airhose to clean a brake drum.” (Phillips v.
Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1088 [217 Cal.Rptr.3d
147].)
• “Nor is there a requirement that ‘specific words must be recited by [plaintiffs’]
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expert.’ [¶] The connection, however, must be made between the defendant’s
asbestos products and the risk of developing mesothelioma suffered by the
decedent.” (Paulus, supra, 224 Cal.App.4th at p. 1364.)
• “We hold that the duty of employers and premises owners to exercise ordinary
care in their use of asbestos includes preventing exposure to asbestos carried by
the bodies and clothing of on-site workers. Where it is reasonably foreseeable
that workers, their clothing, or personal effects will act as vectors carrying
asbestos from the premises to household members, employers have a duty to
take reasonable care to prevent this means of transmission. This duty also
applies to premises owners who use asbestos on their property, subject to any
exceptions and affirmative defenses generally applicable to premises owners,
such as the rules of contractor liability. Importantly, we hold that this duty
extends only to members of a worker’s household. Because the duty is premised
on the foreseeability of both the regularity and intensity of contact that occurs in
a worker’s home, it does not extend beyond this circumscribed category of
potential plaintiffs.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1140 [210
Cal.Rptr.3d 283, 384 P.3d 283].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, § 570
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Theories of
Recovery—Strict Liability For Defective Products, ¶ 2:1259 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-O, Theories of
Recovery—Causation Issues, ¶ 2:2409 (The Rutter Group)
1 Levy et al., California Torts, Ch. 2, Causation, § 2.03 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.22,
Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.72
(Matthew Bender)
436–439. Reserved for Future Use
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440. Negligent Use of Nondeadly Force by Law Enforcement
Officer in Arrest or Other Seizure—Essential Factual Elements
A law enforcement officer may use reasonable force to [arrest/detain/
[,/or] prevent escape of/ [,/or] overcome resistance by] a person when the
officer has reasonable cause to believe that that person has committed or
is committing a crime. However, the officer may use only that degree of
force necessary to [arrest/detain/ [,/or] prevent escape of/ [,/or] overcome
resistance by] the person. [Even if the officer is mistaken, a person being
arrested or detained has a duty not to use force to resist the officer
unless the officer is using unreasonable force.].
[Name of plaintiff] claims that [name of defendant] was negligent in using
unreasonable force to [arrest/detain/ [,/or] prevent escape of/ overcome
resistance by] [him/her/nonbinary pronoun]. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] used force to [arrest/detain/ [,/or]
prevent escape of/ [,/or] overcome resistance by] [name of
plaintiff];
2. That the amount of force used by [name of defendant] was
unreasonable;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s use of unreasonable force was a
substantial factor in causing [name of plaintiff]’s harm.
In deciding whether [name of defendant] used unreasonable force, you
must consider the totality of the circumstances to determine what
amount of force a reasonable [insert type of offıcer] in [name of
defendant]’s position would have used under the same or similar
circumstances. “Totality of the circumstances” means all facts known to
the officer at the time, including the conduct of [name of defendant] and
[name of plaintiff] leading up to the use of force. Among the factors to be
considered are the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue; [and]
(c) Whether [name of plaintiff] was actively resisting [arrest/detention]
or attempting to avoid [arrest/detention] by flight[; and/.]
[(d) [Name of defendant]’s tactical conduct and decisions before using
force on [name of plaintiff].]
[An officer who makes or attempts to make an arrest does not have to
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retreat or stop because the person being arrested is resisting or
threatening to resist. Tactical repositioning or other deescalation tactics
are not retreat. An officer does not lose the right to self-defense by using
objectively reasonable force to [arrest/detain/ [,/or] prevent escape of/
[,/or] overcome resistance by] the person.]
New June 2016; Revised May 2020, November 2020, May 2021
Directions for Use
Use this instruction if the plaintiff makes a negligence claim under state law arising
from the force used in effecting an arrest or detention. Such a claim is often
combined with a claimed civil rights violation under 42 United States Code section
1983. See CACI No. 3020, Excessive Use of Force—Unreasonable Arrest or Other
Seizure—Essential Factual Elements. It might also be combined with a claim for
battery. See CACI No. 1305, Battery by Peace Offıcer—Essential Factual Elements.
For additional authorities on excessive force by a law enforcement officer, see the
Sources and Authority to these two CACI instructions.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers.” It would appear that a negligence claim involving nondeadly force does
not depend on whether the individual qualifies as a peace officer under the Penal
Code. (See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace
officer”].) For cases involving the use of deadly force by a peace officer, use CACI
No. 441, Negligent Use of Deadly Force by Peace Offıcer—Essential Factual
Elements. (Pen. Code, § 835a.) This instruction and CACI No. 441 may require
modification if the jury must decide whether the force used by the defendant was
deadly or nondeadly.
Include the last bracketed sentence in the first paragraph only if there is evidence
the person being arrested or detained used force to resist the officer.
Factors (a), (b), and (c) are often referred to as the “Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are to be applied under California negligence law. (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506].) They
are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 673 F.3d 864, 872);
additional factors may be added if appropriate to the facts of the case. If negligence,
civil rights, and battery claims are all involved, the instructions can be combined so
as to give the Graham factors only once. A sentence may be added to advise the
jury that the factors apply to multiple claims.
Factor (d) is bracketed because no reported California state court decision has held
that an officer’s tactical decisions before using nondeadly force can be actionable
negligence. It has been held that liability can arise if the officer’s earlier tactical
conduct and decisions show, as part of the totality of circumstances, that the
ultimate use of deadly force was unreasonable. (Hayes v. County of San Diego
(2013) 57 Cal.4th 622, 639 [160 Cal.Rptr.3d 684, 305 P.3d 252].) In this respect,
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California negligence law differs from the federal standard under the Fourth
Amendment. (Hayes, supra, 57 Cal.4th at p. 639 [“[T]he state and federal standards
are not the same, which we now confirm”]; cf. Vos v. City of Newport Beach (9th
Cir. 2018) 892 F.3d 1024, 1037 [“To determine police liability [under state law
negligence], a court applies tort law’s ‘reasonable care’ standard, which is distinct
from the Fourth Amendment’s ‘reasonableness’ standard. The Fourth Amendment is
narrower and ‘plac[es] less emphasis on preshooting conduct.’”)
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
Sources and Authority
• Legislative Findings re Use of Force by Law Enforcement. Penal Code section
835a(a).
• Use of Objectively Reasonable Force to Arrest. Penal Code section 835a(b).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “There is an abundance of authority permitting a plaintiff to go to the jury on
both intentional and negligent tort theories, even though they are inconsistent. It
has often been pointed out that there is no prohibition against pleading
inconsistent causes of action stated in as many ways as plaintiff believes his
evidence will show, and he is entitled to recover if one well pleaded count is
supported by the evidence.” (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575,
586 [86 Cal.Rptr. 465, 468 P.2d 825].)
• “The evidence relevant to negligence and intentional tort overlaps here and
presents a case similar to Grudt. . . . [¶] This court held it was reversible error
to exclude the negligence issue from the jury even though plaintiff also had pled
intentional tort. The court pointed to the rule that a party may proceed on
inconsistent causes of action unless a nonsuit is appropriate.” (Munoz v. Olin
(1979) 24 Cal.3d 629, 635 [156 Cal.Rptr. 727, 596 P.2d 1143].)
• “Consistent with these principles and the factors the high court has identified, the
federal court in this case did not instruct the jury to conduct some abstract or
nebulous balancing of competing interests. Instead, as noted above, it instructed
the jury to determine the reasonableness of the officers’ actions in light of ‘the
totality of the circumstances at the time,’ including ‘the severity of the crime at
issue, whether the plaintiff posed a reasonable threat to the safety of the officer
or others, and whether the plaintiff was actively resisting detention or attempting
to escape.’ The same consideration of the totality of the circumstances is
required in determining reasonableness under California negligence law.
Moreover, California’s civil jury instructions specifically direct the jury, in
determining whether police officers used unreasonable force for purposes of tort
liability, to consider the same factors that the high court has identified and that
the federal court’s instructions in this case set forth. (Judicial Council of Cal.
Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in arguing that the
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federal and state standards of reasonableness differ in that the former involves a
fact finder’s balancing of competing interests.” (Hernandez, supra, 46 Cal.4th at
p. 514, internal citation omitted.)
• “Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of ‘ “the nature and
quality of the intrusion on the individual’s Fourth Amendment interests” ’ against
the countervailing governmental interests at stake. Our Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it. Because ‘[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application,’ however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Graham, supra, 490 U.S. at p. 396,
internal citations omitted.)
• “The most important of these [Graham factors, above] is whether the suspect
posed an immediate threat to the officers or others, as measured objectively
under the circumstances.” (Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
• “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. . . . [T]he question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. . . .” ’ In calculating whether the
amount of force was excessive, a trier of fact must recognize that peace officers
are often forced to make split-second judgments, in tense circumstances,
concerning the amount of force required.” (Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 527–528 [89 Cal.Rptr.3d 801], internal citations omitted.)
• “ ‘[A]s long as an officer’s conduct falls within the range of conduct that is
reasonable under the circumstances, there is no requirement that he or she
choose the “most reasonable” action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful
apprehension of a violent suspect, in order to avoid liability for negligence.’”
(Hayes, supra, 57 Cal.4th at p. 632.)
• “The California Supreme Court did not address whether decisions before non-
deadly force can be actionable negligence, but addressed this issue only in the
context of ‘deadly force.’” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983,
991, fn. 7.)
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
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detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
• “[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, original italics, internal
citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 496
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
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441. Negligent Use of Deadly Force by Peace Officer—Essential
Factual Elements
A peace officer may use deadly force only when necessary in defense of
human life. [Name of plaintiff] claims that [name of defendant] was
negligent in using deadly force to [arrest/detain/ [,/or] prevent escape of/
[,/or] overcome resistance to] [him/her/nonbinary pronoun/name of
decedent]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was a peace officer;
2. That [name of defendant] used deadly force on [name of
plaintiff/decedent];
3. That [name of defendant]’s use of deadly force was not necessary
to defend human life;
4. That [name of plaintiff/decedent] was [harmed/killed]; and
5. That [name of defendant]’s use of deadly force was a substantial
factor in causing [name of plaintiff/decedent]’s [harm/death].
[Name of defendant]’s use of deadly force was necessary to defend human
life only if a reasonable officer in the same situation would have believed,
based on the totality of the circumstances known to or perceived by
[name of defendant] at the time, that deadly force was necessary [either]:
[to defend against an imminent threat of death or serious bodily injury
to [name of defendant] [and/or] [another person]][; or/.]]
[to apprehend a fleeing person for a felony, when all of the following
conditions are present:
i. The felony threatened or resulted in death or serious bodily
injury to another;
ii. [Name of defendant] reasonably believed that the person fleeing
would cause death or serious bodily injury to another unless
immediately apprehended; and
iii. [Name of defendant] made reasonable efforts to identify
[himself/herself/nonbinary pronoun] as a peace officer and to
warn that deadly force may be used, unless the officer had
objectively reasonable grounds to believe the person is aware
of those facts.]
[A peace officer must not use deadly force against persons based only on
the danger those persons pose to themselves, if an objectively reasonable
officer would believe the person does not pose an imminent threat of
death or serious bodily injury to the peace officer or to another person.]
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[A person being [arrested/detained] has a duty not to use force to resist a
peace officer unless the peace officer is using unreasonable force.]
[“Deadly force” is force that creates a substantial risk of causing death
or serious bodily injury. It is not limited to the discharge of a firearm.]
A threat of death or serious bodily injury is “imminent” if, based on the
totality of the circumstances, a reasonable officer in the same situation
would believe that a person has the present ability, opportunity, and
apparent intent to immediately cause death or serious bodily injury to
the peace officer or to another person. An imminent harm is not merely
a fear of future harm, no matter how great the fear and no matter how
great the likelihood of the harm, but is one that, from appearances, must
be instantly confronted and addressed.
“Totality of the circumstances” means all facts known to or perceived by
the peace officer at the time, including the conduct of [name of defendant]
and [name of plaintiff/decedent] leading up to the use of deadly force. In
determining whether [name of defendant]’s use of deadly force was
necessary in defense of human life, you must consider [name of
defendant]’s tactical conduct and decisions before using deadly force on
[name of plaintiff/decedent] and whether [name of defendant] used other
available resources and techniques as [an] alternative[s] to deadly force,
if it was reasonably safe and feasible to an objectively reasonable officer.
[A peace officer who makes or attempts to make an arrest does not have
to retreat or stop because the person being arrested is resisting or
threatening to resist. Tactical repositioning or other deescalation tactics
are not retreat. A peace officer does not lose the right to self-defense by
using objectively reasonable force to [arrest/detain/ [,/or] prevent escape/
[,/or] overcome resistance].]
New November 2020
Directions for Use
Use this instruction for a negligence claim arising from a peace officer’s use of
deadly force. Penal Code section 835a preserves the “reasonable force” standard for
nondeadly force, but creates a separate, higher standard that authorizes a peace
officer to use deadly force only when “necessary in defense of human life.” If the
plaintiff claims that the defendant used both deadly and nondeadly force, or if the
jury must decide whether the force used was deadly or nondeadly, this instruction
may be used along with the corresponding essential elements for negligence
involving nondeadly force. See CACI No. 440, Negligent Use of Nondeadly Force
by Law Enforcement Offıcer in Arrest or Other Seizure—Essential Factual Elements.
Element 1 may be stipulated to or decided by the judge as a matter of law. In such
a case, the judge must instruct the jury that the defendant was a peace officer. If
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there are contested issues of fact regarding element 1, include the specific factual
findings necessary for the jury to determine whether the defendant was a peace
officer.
Select either or both bracketed options concerning the justifications for using deadly
force under Penal Code section § 835a(c) depending on the facts of the case. If only
one justification is supported by the facts, omit the either/or language. Include the
bracketed sentence following the justifications if the plaintiff claims that the only
threat the plaintiff posed was self-harm. A peace officer may not use deadly force
against a person based on a danger that person poses to themselves if an objectively
reasonable officer would believe the person does not pose an imminent threat of
death or serious bodily injury to the peace officer or to another person. (Pen. Code,
§ 835a(c)(2).)
“Deadly force” means any use of force that creates a substantial risk of causing
death or serious bodily injury, including, but not limited to, the discharge of a
firearm. (Pen. Code, § 835a(e)(1).) The definition may be omitted from the
instruction if a firearm was used. Note that this definition does not require that the
encounter result in the death of the person against whom the force was used. If
there is no dispute about the use of deadly force, the court should instruct the jury
that deadly force was used.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
In a wrongful death or survival action, use the name of the decedent victim where
applicable and further modify the instruction as appropriate.
Sources and Authority
• Legislative Findings Regarding Use of Force by Law Enforcement. Penal Code
section 835a(a).
• When Use of Deadly Force Is Justified. Penal Code section 835a(c).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “Peace Officer” Defined. Penal Code section 830 et seq.
• “There is an abundance of authority permitting a plaintiff to go to the jury on
both intentional and negligent tort theories, even though they are inconsistent. It
has often been pointed out that there is no prohibition against pleading
inconsistent causes of action stated in as many ways as plaintiff believes his
evidence will show, and he is entitled to recover if one well pleaded count is
supported by the evidence.” (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575,
586 [86 Cal.Rptr. 465, 468 P.2d 825].)
• “The evidence relevant to negligence and intentional tort overlaps here and
presents a case similar to Grudt v. City of Los Angeles, supra, 2 Cal.3d 575. . . .
[¶] This court held it was reversible error to exclude the negligence issue from
the jury even though plaintiff also had pled intentional tort. The court pointed to
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the rule that a party may proceed on inconsistent causes of action unless a
nonsuit is appropriate.” (Munoz v. Olin (1979) 24 Cal.3d 629, 635 [156 Cal.Rptr.
727, 596 P.2d 1143].)
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
• “[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, original italics, internal
citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 427, 993
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
442–449. Reserved for Future Use
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450A. Good Samaritan—Nonemergency
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for [name of plaintiff]’s harm because [he/she/nonbinary
pronoun] was voluntarily trying to protect [name of plaintiff] from harm
in a nonemergency situation. If you decide that [name of defendant] was
negligent, [he/she/nonbinary pronoun] is not responsible unless [name of
plaintiff] proves both of the following:
1. [(a) That [name of defendant]’s failure to use reasonable care
added to the risk of harm;]
1. [or]
1. [(b) That [name of defendant]’s conduct caused [name of plaintiff]
to reasonably rely on [his/her/nonbinary pronoun] protection;]
AND
2. That the [additional risk/ [or] reliance] was a substantial factor in
causing harm to [name of plaintiff].
Derived from former CACI No. 450 December 2010
Directions for Use
Use this instruction for situations other than at the scene of an emergency. Different
standards apply in an emergency situation. (See Health & Saf. Code, § 1799.102;
CACI No. 450B, Good Samaritan—Scene of Emergency.) Give both instructions if
the jury will be asked to decide whether an emergency existed as the preliminary
issue. Because under Health and Safety Code section 1799.102 a defendant receives
greater protection in an emergency situation, the advisory committee believes that
the defendant bears the burden of proving an emergency. (See Evid. Code, § 500
[party has the burden of proof as to each fact the existence or nonexistence of
which is essential to the claim for relief or defense asserted].)
Select either or both options for element 1 depending on the facts.
Sources and Authority
• Good Samaritan Immunity for Medical Licensees. Business and Professions
Code sections 2395–2398.
• Good Samaritan Immunity for Nurses. Business and Professions Code sections
2727.5, 2861.5.
• Good Samaritan Immunity for Dentists. Business and Professions Code section
1627.5.
• Good Samaritan Immunity for Rescue Teams. Health and Safety Code section
1317(f).
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• Good Samaritan Immunity for Persons Rendering Emergency Medical Services
Health and Safety Code section 1799.102.
• Good Samaritan Immunity for Paramedics. Health and Safety Code section
1799.104.
• Good Samaritan Immunity for First-Aid Volunteers. Government Code section
50086.
• “Under well-established common law principles, a person has no duty to come
to the aid of another. If, however, a person elects to come to someone’s aid, he
or she has a duty to exercise due care. Thus, a ‘good Samaritan’ who attempts to
help someone might be liable if he or she does not exercise due care and ends
up causing harm.” (Van Horn v. Watson (2008) 45 Cal.4th 322, 324 [86
Cal.Rptr.3d 350, 197 P.3d 164], internal citations omitted.)
• “A person who has not created a peril is not liable in tort merely for failure to
take affirmative action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act. Also pertinent to our
discussion is the role of the volunteer who, having no initial duty to do so,
undertakes to come to the aid of another—the ‘good Samaritan.’ . . . He is
under a duty to exercise due care in performance and is liable if (a) his failure to
exercise such care increases the risk of such harm, or (b) the harm is suffered
because of the other’s reliance upon the undertaking.” (Williams v. State of
California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664 P.2d 137], internal
citations omitted.)
• “A defendant does not increase the risk of harm by merely failing to eliminate a
preexisting risk.” (University of Southern California v. Superior Court (2018) 30
Cal.App.5th 429, 450 [241 Cal.Rptr.3d 616].)
• “A police officer, paramedic or other public safety worker is as much entitled to
the benefit of this general rule as anyone else.” (Camp v. State of California
(2010) 184 Cal.App.4th 967, 975 [109 Cal.Rptr.3d 676].)
• “The police owe duties of care only to the public at large and, except where they
enter into a ‘special relationship,’ have no duty to offer affirmative assistance to
anyone in particular.” (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051,
1060–1061 [241 Cal.Rptr.3d 437].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a danger
has induced reliance, or when the actions of CHP place a person in peril or
increase the risk of harm. In other words, to create a special relationship and a
duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s way
[citations], or lulled a citizen into a false sense of security and then withdrew
essential safety precautions.” ’ Nonfeasance that leaves the citizen in exactly the
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same position that he or she already occupied cannot support a finding of duty
of care. Affirmative conduct or misfeasance on the part of CHP that induces
reliance or changes the risk of harm is required.” (Greyhound Lines, Inc. v.
Department of the California Highway Patrol (2013) 213 Cal.App.4th 1129,
1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• “A special relationship can be found ‘when the state, through its agents,
voluntarily assumes a protective duty toward a certain member of the public and
undertakes action on behalf of that member, thereby inducing reliance, it is held
to the same standard of care as a private person or organization.’ ” (Arista,
supra, 29 Cal.App.5th at p. 1061.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1205–1210
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.150 (Matthew
Bender)
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450B. Good Samaritan—Scene of Emergency
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for [name of plaintiff]’s harm because [he/she/nonbinary
pronoun] was trying to protect [name of plaintiff] from harm at the scene
of an emergency.
To succeed on this defense, [name of defendant] must prove all of the
following:
1. That [name of defendant] rendered medical or nonmedical care or
assistance to [name of plaintiff] at the scene of an emergency;
2. That [name of defendant] was acting in good faith; and
3. That [name of defendant] was not acting for compensation.
If you decide that [name of defendant] has proved all of the above, but
you decide that [name of defendant] was negligent, [he/she/nonbinary
pronoun] is not responsible unless [name of plaintiff] proves that [name of
defendant]’s conduct constituted gross negligence or willful or wanton
misconduct.
“Gross negligence” is the lack of any care or an extreme departure from
what a reasonably careful person would do in the same situation.
“Willful or wanton misconduct” means conduct by a person who may
have no intent to cause harm, but who intentionally performs an act so
unreasonable and dangerous that the person knows or should know it is
highly probable that harm will result.
If you find that [name of defendant] was grossly negligent or acted
willfully or wantonly, [name of plaintiff] must then also prove:
1. [(a) That [name of defendant]’s conduct added to the risk of
harm;]
1. [or]
1. [(b) That [name of defendant]’s conduct caused [name of plaintiff]
to reasonably rely on [his/her/nonbinary pronoun] protection;]
AND
2. That the [additional risk/ [or] reliance] was a substantial factor in
causing harm to [name of plaintiff].
Derived from former CACI No. 450 December 2010; Revised December 2011, May
2020
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Directions for Use
Use this instruction for situations at the scene of an emergency not involving
medical, law enforcement, or emergency personnel. (See Health & Saf. Code,
§ 1799.102.) In a nonemergency situation, give CACI No. 450A, Good
Samaritan—Nonemergency.
Under Health and Safety Code section 1799.102(b), the defendant must have acted
at the scene of an emergency, in good faith, and not for compensation. These terms
are not defined, and neither the statute nor case law indicates who has the burden of
proof. However, the advisory committee believes that it is more likely that the
defendant has the burden of proving those things necessary to invoke the protections
of the statute. (See Evid. Code, § 500 [party has the burden of proof as to each fact
the existence or nonexistence of which is essential to the claim for relief or defense
asserted].)
If the jury finds that the statutory standards have been met, then presumably it must
also find that the common-law standards for Good-Samaritan liability have also been
met. (See Health & Saf. Code, § 1799.102(c) [“Nothing in this section shall be
construed to change any existing legal duties or obligations”].) In the common-law
part of the instruction, select either or both options for element 1 depending on the
facts.
See also CACI No. 425, “Gross Negligence” Explained.
Sources and Authority
• Immunity for Persons Rendering Care at Scene of Emergency. Health and Safety
Code section 1799.102.
• “ ‘Gross negligence’ long has been defined in California and other jurisdictions
as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the
ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara v. Superior Court
(2007) 41 Cal.4th 747, 754 [62 Cal.Rptr.3d 527, 161 P.3d 1095], internal
citations omitted.)
• “By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton
negligence” ’) describes conduct by a person who may have no intent to cause
harm, but who intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm will result.”
(City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4, internal citations
omitted.)
• “Under well-established common law principles, a person has no duty to come
to the aid of another. If, however, a person elects to come to someone’s aid, he
or she has a duty to exercise due care. Thus, a ‘good Samaritan’ who attempts to
help someone might be liable if he or she does not exercise due care and ends
up causing harm.” (Van Horn v. Watson (2008) 45 Cal.4th 322, 324 [86
Cal.Rptr.3d 350, 197 P.3d 164], internal citations omitted.)
• “A person who has not created a peril is not liable in tort merely for failure to
take affirmative action to assist or protect another unless there is some
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relationship between them which gives rise to a duty to act. Also pertinent to our
discussion is the role of the volunteer who, having no initial duty to do so,
undertakes to come to the aid of another—the ‘good Samaritan.’ . . . He is
under a duty to exercise due care in performance and is liable if (a) his failure to
exercise such care increases the risk of such harm, or (b) the harm is suffered
because of the other’s reliance upon the undertaking.” (Williams v. State of
California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664 P.2d 137], internal
citations omitted.)
• “A police officer, paramedic or other public safety worker is as much entitled to
the benefit of this general rule as anyone else.” (Camp v. State of California
(2010) 184 Cal.App.4th 967, 975 [109 Cal.Rptr.3d 676].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a danger
has induced reliance, or when the actions of CHP place a person in peril or
increase the risk of harm. In other words, to create a special relationship and a
duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s way
[citations], or lulled a citizen into a false sense of security and then withdrew
essential safety precautions.” ’ Nonfeasance that leaves the citizen in exactly the
same position that he or she already occupied cannot support a finding of duty
of care. Affirmative conduct or misfeasance on the part of CHP that induces
reliance or changes the risk of harm is required.” (Greyhound Lines, Inc. v.
Department of the California Highway Patrol (2013) 213 Cal.App.4th 1129,
1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• Statutory exceptions to Good Samaritan liability include immunities under
certain circumstances for medical licensees (Bus. & Prof. Code, §§ 2395–2398),
nurses (Bus. & Prof. Code, §§ 2727.5, 2861.5), dentists (Bus. & Prof. Code,
§ 1627.5), rescue teams (Health & Saf. Code, § 1317(f)), persons rendering
emergency medical services (Health & Saf. Code, § 1799.102), paramedics
(Health & Saf. Code, § 1799.104), and first-aid volunteers (Gov. Code, § 50086).
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1205–1210
Haning et al., California Practice Guide: Personal Injury, Ch. 2(IV)-H, Emergency
Medical Services Immunity, ¶¶ 2:3495–2:3516 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
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16 California Points and Authorities, Ch. 165, Negligence, § 165.150 (Matthew
Bender)
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450C. Negligent Undertaking
[Name of plaintiff] claims that [name of defendant] is responsible for [name
of plaintiff]’s harm because [name of defendant] failed to exercise
reasonable care in rendering services to [name of third person]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant], voluntarily or for a charge, rendered
services to [name of third person];
2. That these services were of a kind that [name of defendant] should
have recognized as needed for the protection of [name of plaintiff];
3. That [name of defendant] failed to exercise reasonable care in
rendering these services;
4. That [name of defendant]’s failure to exercise reasonable care was
a substantial factor in causing harm to [name of plaintiff]; and
5. [(a) That [name of defendant]’s failure to use reasonable care
added to the risk of harm;]
5. [or]
5. [(b) That [name of defendant]’s services were rendered to perform
a duty that [name of third person] owed to third persons including
[name of plaintiff];]
5. [or]
5. [(c) That [name of plaintiff] suffered harm because [[name of third
person]/ [or] [name of plaintiff]] relied on [name of defendant]’s
services.]
New June 2016; Revised November 2018
Directions for Use
This instruction presents the theory of liability known as the “negligent undertaking”
rule. (See Restatement Second of Torts, section 324A.) The elements are stated in
Paz v. State of California (2000) 22 Cal.4th 550, 553 [93 Cal.Rptr.2d 703, 994 P.2d
975].
In Paz, the court said that negligent undertaking is “sometimes referred to as the
‘Good Samaritan’ rule,” by which a person generally has no duty to come to the aid
of another and cannot be liable for doing so unless the person aiding’s acts
increased the risk to the person aided or the person aided relied on the person
aiding’s acts. (Paz, supra, 22 Cal.4th at p. 553; see CACI No. 450A, Good
Samaritan—Nonemergency.) It is perhaps more accurate to say that negligent
undertaking is another application of the Good Samaritan rule. CACI No. 450A is
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for use in a case in which the person aided is the injured plaintiff. (See Restatement
2d of Torts, § 323.) This instruction is for use in a case in which the defendant’s
failure to exercise reasonable care in performing services to one person has resulted
in harm to another person.
Select one or more of the three options for element 5 depending on the facts.
Sources and Authority
• Negligent Undertaking. Restatement Second of Torts section 324A.
• “[T]he [Restatement Second of Torts] section 324A theory of
liability—sometimes referred to as the “Good Samaritan” rule—is a settled
principle firmly rooted in the common law of negligence. Section 324A
prescribes the conditions under which a person who undertakes to render
services for another may be liable to third persons for physical harm resulting
from a failure to act with reasonable care. Liability may exist if (a) the failure to
exercise reasonable care increased the risk of harm, (b) the undertaking was to
perform a duty the other person owed to the third persons, or (c) the harm was
suffered because the other person or the third persons relied on the undertaking.”
(Paz, supra, 22 Cal.4th at p. 553, original italics.)
• “Thus, as the traditional theory is articulated in the Restatement, and as we have
applied it in other contexts, a negligent undertaking claim of liability to third
parties requires evidence that: (1) the actor undertook, gratuitously or for
consideration, to render services to another; (2) the services rendered were of a
kind the actor should have recognized as necessary for the protection of third
persons; (3) the actor failed to exercise reasonable care in the performance of the
undertaking; (4) the actor’s failure to exercise reasonable care resulted in
physical harm to the third persons; and (5) either (a) the actor’s carelessness
increased the risk of such harm, or (b) the actor undertook to perform a duty that
the other owed to the third persons, or (c) the harm was suffered because either
the other or the third persons relied on the actor’s undertaking. [¶] Section
324A’s negligent undertaking theory of liability subsumes the well-known
elements of any negligence action, viz., duty, breach of duty, proximate cause,
and damages.” (Paz, supra, 22 Cal.4th at p. 559, original italics, internal citation
omitted; see also Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763, 775 [180
Cal.Rptr.3d 479] [jury properly instructed on elements as set forth above in
Paz].)
• “Under this formulation, a duty of care exists when the first, second and fifth
elements are established. The third element addresses the breach of that duty of
care and the fourth element covers both causation and damages.” (Peredia v. HR
Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691 [236 Cal.Rptr.3d 157].)
• “Section 324A is applied to determine the ‘duty element’ in a negligence action
where the defendant has ‘ “specifically . . . undertaken to perform the task that
he is charged with having performed negligently, for without the actual
assumption of the undertaking there can be no correlative duty to perform that
undertaking carefully.” ’ The negligent undertaking theory of liability applies to
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personal injury and property damage claims, but not to claims seeking only
economic loss.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914,
922 [224 Cal.Rptr.3d 725], internal citations omitted.)
• “The foundation for considering whether an actor . . . should be exposed to
liability on this theory is whether the actor made a specific undertaking ‘ “to
perform the task that he is charged with having performed negligently, for
without the actual assumption of the undertaking there can be no correlative duty
to perform that undertaking carefully.” ’ ” (Jabo v. YMCA of San Diego County
(2018) 27 Cal.App.5th 853, 878 [238 Cal.Rptr.3d 588].)
• “[U]nder a negligent undertaking theory of liability, the scope of a defendant’s
duty presents a jury issue when there is a factual dispute as to the nature of the
undertaking. The issue of ‘whether [a defendant’s] alleged actions, if proven,
would constitute an “undertaking” sufficient . . . to give rise to an actionable
duty of care is a legal question for the court.’ However, ‘there may be fact
questions “about precisely what it was that the defendant undertook to do.” That
is, while “[t]he ‘precise nature and extent’ of [an alleged negligent undertaking]
duty ‘is a question of law . . . “it depends on the nature and extent of the act
undertaken, a question of fact.” ’ ” [Citation.] Thus, if the record can support
competing inferences [citation], or if the facts are not yet sufficiently developed
[citation], “ ‘an ultimate finding on the existence of a duty cannot be made prior
to a hearing on the merits’ ” [citation], and summary judgment is precluded.
[Citations.]’ (see CACI No. 450C [each element of the negligent undertaking
theory of liability is resolved by the trier of fact].)” (O’Malley v. Hospitality
Staffıng Solutions (2018) 20 Cal.App.5th 21, 27–28 [228 Cal.Rptr.3d 731],
internal citations omitted.)
• “To establish as a matter of law that defendant does not owe plaintiffs a duty
under a negligent undertaking theory, defendant must negate all three alternative
predicates of the fifth factor: ‘(a) the actor’s carelessness increased the risk of
such harm, or (b) the undertaking was to perform a duty owed by the other to
the third persons, or (c) the harm was suffered because of the reliance of the
other or the third persons upon the undertaking.’ ” (Lichtman, supra, 16
Cal.App.5th at p. 926.)
• “The undisputed facts here present a classic scenario for consideration of the
negligent undertaking theory. This theory of liability is typically applied where
the defendant has contractually agreed to provide services for the protection of
others, but has negligently done so.” (Lichtman, supra, 16 Cal.App.5th at p.
927.)
• “The general rule is that a person who has not created a peril is not liable in tort
for failing to take affirmative action to protect another unless they have some
relationship that gives rise to a duty to act. However, one who undertakes to aid
another is under a duty to exercise due care in acting and is liable if the failure
to do so increases the risk of harm or if the harm is suffered because the other
relied on the undertaking. Section 324A integrates these two basic principles in
its rule.” (Paz. supra, 22 Cal.4th at pp. 558−559.)
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• “[T]he ‘negligent undertaking’ doctrine, like the special relationship doctrine, is
an exception to the ‘no duty to aid’ rule.” (Conti v. Watchtower Bible & Tract
Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1231 [186 Cal.Rptr.3d
26].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a danger
has induced reliance, or when the actions of CHP place a person in peril or
increase the risk of harm. In other words, to create a special relationship and a
duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s way
[citations], or lulled a citizen into a false sense of security and then withdrew
essential safety precautions.” ’ Nonfeasance that leaves the citizen in exactly the
same position that he or she already occupied cannot support a finding of duty
of care. Affirmative conduct or misfeasance on the part of CHP that induces
reliance or changes the risk of harm is required.” (Greyhound Lines, Inc. v.
Department of the California Highway Patrol (2013) 213 Cal.App.4th 1129,
1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• “A defendant does not increase the risk of harm by merely failing to eliminate a
preexisting risk.” (University of Southern California v. Superior Court (2018) 30
Cal.App.5th 429, 450 [241 Cal.Rptr.3d 616].)
• “A operates a grocery store. An electric light hanging over one of the aisles of
the store becomes defective, and A calls B Electric Company to repair it. B
Company sends a workman, who repairs the light, but leaves the fixture so
insecurely attached that it falls upon and injures C, a customer in the store who
is walking down the aisle. B Company is subject to liability to C.” (Restat. 2d of
Torts, § 324A, Illustration 1.)
Secondary Sources
5 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1205–1210
Flahavan et al., California Practice Guide: Personal Injury, Ch. 2(II)-I, Negligence
Liability Based on Omission to Act—Legal Duty Arising from “Special
Relationship”, ¶¶ 2:2005–2:2009 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2][d],
[5][c] (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.150, 165.241
(Matthew Bender)
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451. Affirmative Defense—Contractual Assumption of Risk
[Name of defendant] claims that [name of plaintiff] may not recover any
damages because [he/she/nonbinary pronoun] agreed before the incident
that [he/she/nonbinary pronoun] would not hold [name of defendant]
responsible for any damages.
If [name of defendant] proves that there was such an agreement and that
it applies to [name of plaintiff]’s claim, then [name of defendant] is not
responsible for [name of plaintiff]’s harm[, unless you find that [name of
defendant] was grossly negligent or intentionally harmed [name of
plaintiff]].
[If you find that [name of defendant] was grossly negligent or
intentionally harmed [name of plaintiff], then the agreement does not
apply. You must then determine whether [he/she/nonbinary pronoun/it] is
responsible for [name of plaintiff]’s harm based on the other instructions
that I have given you.]
New September 2003; Revised December 2011
Directions for Use
This instruction sets forth the affirmative defense of express or contractual
assumption of risk. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120
Cal.Rptr.3d 90].) It will be given in very limited circumstances. Both the
interpretation of a waiver agreement and application of its legal effect are generally
resolved by the judge before trial. The existence of a duty is a question of law for
the court (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [183 Cal.Rptr.3d
234]), as is the interpretation of a written instrument if the interpretation does not
turn on the credibility of extrinsic evidence. (Allabach v. Santa Clara County Fair
Assn., Inc. (1996) 46 Cal.App.4th 1007, 1011 [54 Cal.Rptr.2d 330].)
However, there may be contract law defenses (such as fraud, lack of consideration,
duress, unconscionability) that could be asserted by the plaintiff to contest the
validity of a waiver. If these defenses depend on disputed facts that must be
considered by a jury, then this instruction should also be given.
Express assumption of risk does not relieve the defendant of liability if there was
gross negligence or willful injury. (See Civ. Code, § 1668.) However, the doctrine of
primary assumption of risk may then become relevant if an inherently dangerous
sport or activity is involved. (See Rosencrans v. Dover Images, Ltd. (2011) 192
Cal.App.4th 1072, 1081 [122 Cal.Rptr.3d 22].)
If there are jury issues with regard to gross negligence, include the bracketed
language on gross negligence. Also give CACI No. 425, “Gross Negligence”
Explained. If the jury finds no gross negligence, then the action is barred by express
assumption of risk unless there are issues of fact with regard to contract formation.
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Sources and Authority
• Contract Releasing Party From Liability for Fraud or Willful Injury is Against
Public Policy. Civil Code section 1668.
• “[P]arties may contract for the release of liability for future ordinary negligence
so long as such contracts do not violate public policy. ‘A valid release precludes
liability for risks of injury within the scope of the release.’ ” (Anderson v.
Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 877 [208 Cal.Rptr.3d 792],
internal citations omitted.)
• “With respect to the question of express waiver, the legal issue is not whether
the particular risk of injury appellant suffered is inherent in the recreational
activity to which the Release applies [citations], but simply the scope of the
Release.” (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 27 [236
Cal.Rptr.3d 682], original italics.)
• “Express assumption occurs when the plaintiff, in advance, expressly consents
. . . to relieve the defendant of an obligation of conduct toward him, and to take
his chances of injury from a known risk arising from what the defendant is to do
or leave undone. . . . The result is that . . . being under no duty, [the defendant]
cannot be charged with negligence.” (Saenz v. Whitewater Voyages, Inc. (1990)
226 Cal.App.3d 758, 764 [276 Cal.Rptr. 672], internal citations omitted.)
• “While often referred to as a defense, a release of future liability is more
appropriately characterized as an express assumption of the risk that negates the
defendant’s duty of care, an element of the plaintiff’s case.” (Eriksson, supra,
233 Cal.App.4th at p. 719.)
• “[C]ases involving express assumption of risk are concerned with instances in
which, as the result of an express agreement, the defendant owes no duty to
protect the plaintiff from an injury-causing risk. Thus in this respect express
assumption of risk properly can be viewed as analogous to primary assumption
of risk.” (Knight v. Jewett (1992) 3 Cal.4th 296, 308–309, fn. 4 [11 Cal.Rptr.2d
2, 834 P.2d 696].)
• “ ‘ “It is only necessary that the act of negligence, which results in injury to the
releaser, be reasonably related to the object or purpose for which the release is
given.” ’ . . . ‘An act of negligence is reasonably related to the object or
purpose for which the release was given if it is included within the express
scope of the release.’ ” (Eriksson, supra, 233 Cal.App.4th at p. 722.)
• “Although [decedent] could not release or waive her parents’ subsequent
wrongful death claims, it is well settled that a release of future liability or
express assumption of the risk by the decedent may be asserted as a defense to
such claims.” (Eriksson, supra, 233 Cal.App.4th at p. 725.)
• “[E]xculpatory clause which affects the public interest cannot stand.” (Tunkl v.
Regents of Univ. of California (1963) 60 Cal.2d 92, 98 [32 Cal.Rptr. 33, 383
P.2d 441].)
• “In Tunkl, our high court identified six characteristics typical of contracts
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affecting the public interest: ‘ “[1] It concerns a business of a type generally
thought suitable for public regulation. [2] The party seeking exculpation is
engaged in performing a service of great importance to the public, which is often
a matter of practical necessity for some members of the public. [3] The party
holds himself out as willing to perform this service for any member of the
public who seeks it, or at least any member coming within certain established
standards. [4] As a result of the essential nature of the service, in the economic
setting of the transaction, the party invoking exculpation possesses a decisive
advantage of bargaining strength against any member of the public who seeks
his services. [5] In exercising a superior bargaining power the party confronts
the public with a standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence. [6] Finally, as a result of the transaction, the
person or property of the purchaser is placed under the control of the seller,
subject to the risk of carelessness by the seller or his agents.” ’ Not all of these
factors need to be present for an exculpatory contract to be voided as affecting
the public interest.” (Hass, supra, 26 Cal.App.5th at p. 29, internal citations
omitted.)
• “The issue [of whether something is in the public interest] is tested objectively,
by the activity’s importance to the general public, not by its subjective
importance to the particular plaintiff.” (Booth v. Santa Barbara Biplane Tours,
LLC (2008) 158 Cal.App.4th 1173, 1179–1180 [70 Cal.Rptr.3d 660], original
italics.)
• “[P]ublic policy generally precludes enforcement of an agreement that would
remove an obligation to adhere to even a minimal standard of care. Applying
that general rule here, we hold that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child
who participates in a recreational camp designed for the needs of such children
violates public policy and is unenforceable.” (City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095], original
italics.)
• “ ‘ “[A] purveyor of recreational activities owes a duty to a patron not to
increase the risks inherent in the activity in which the patron has paid to
engage.” ’ Thus, in cases involving a waiver of liability for future negligence,
courts have held that conduct that substantially or unreasonably increased the
inherent risk of an activity or actively concealed a known risk could amount to
gross negligence, which would not be barred by a release agreement.” (Willhide-
Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 359
[235 Cal.Rptr.3d 716].)
• “ ‘ “A written release may exculpate a tortfeasor from future negligence or
misconduct. [Citation.] To be effective, such a release ‘must be clear,
unambiguous, and explicit in expressing the intent of the subscribing parties.’
[Citation.] The release need not achieve perfection. [Citation.] Exculpatory
agreements in the recreational sports context do not implicate the public interest
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and therefore are not void as against public policy. [Citations.]” ’ ‘ “An
ambiguity exists when a party can identify an alternative, semantically
reasonable, candidate of meaning of a writing. [Citations.]” ’ ” (Huverserian v.
Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1467 [110 Cal.Rptr.3d
112], original italics, internal citations omitted.)
• “Unlike claims for ordinary negligence, products liability claims cannot be
waived.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631,
640 [184 Cal.Rptr.3d 155].)
• “Since there is no disputed issue of material fact concerning gross negligence,
the release also bars [plaintiff]’s cause of action for breach of warranty.”
(Grebing, supra, 234 Cal.App.4th at p. 640.)
• “Generally, a person who signs an instrument may not avoid the impact of its
terms on the ground that she failed to read it before signing. However, a release
is invalid when it is procured by misrepresentation, overreaching, deception, or
fraud. ‘It has often been held that if the releaser was under a misapprehension,
not due to his own neglect, as to the nature or scope of the release, and if this
misapprehension was induced by the misconduct of the releasee, then the
release, regardless of how comprehensively worded, is binding only to the extent
actually intended by the releaser.’ ‘In cases providing the opportunity for
overreaching, the releasee has a duty to act in good faith and the releaser must
have a full understanding of his legal rights. [Citations.] Furthermore, it is the
province of the jury to determine whether the circumstances afforded the
opportunity for overreaching, whether the releasee engaged in overreaching and
whether the releaser was misled. [Citation.]’ A ‘strong showing of misconduct’
by the plaintiff is not necessary to demonstrate the existence of a triable issue of
fact here; only a ‘slight showing’ is required.” (Jimenez v. 24 Hour Fitness USA,
Inc. (2015) 237 Cal.App.4th 546, 563–564 [188 Cal.Rptr.3d 228], internal
citations omitted.)
• “Plaintiffs assert that Jerid did not ‘freely and knowingly’ enter into the Release
because (1) the [defendant’s] employee represented the Release was a sign-in
sheet; (2) the metal clip of the clipboard obscured the title of the document; (3)
the Release was written in a small font; (4) [defendant] did not inform Jerid he
was releasing his rights by signing the Release; (5) Jerid did not know he was
signing a release; (6) Jerid did not receive a copy of the Release; and (7) Jerid
was not given adequate time to read or understand the Release. [¶] We do not
find plaintiffs’ argument persuasive because . . . there was nothing preventing
Jerid from reading the Release. There is nothing indicating that Jerid was
prevented from (1) reading the Release while he sat at the booth, or (2) taking
the Release, moving his truck out of the line, and reading the Release. In sum,
plaintiffs’ arguments do not persuade us that Jerid was denied a reasonable
opportunity to discover the true terms of the contract.” (Rosencrans, supra, 192
Cal.App.4th at pp. 1080–1081.)
• “Whether a contract provision is clear and unambiguous is a question of law, not
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of fact.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250
Cal.Rptr. 299].)
• “By signing as [decedent]’s parent, [plaintiff] approved of the terms of the
release and understood that her signature made the release ‘irrevocable and
binding.’ Under these circumstances, the release could not be disaffirmed. [¶]
Although [plaintiff]’s signature prevented the agreement from being disaffirmed,
it does not make her a party to the release.” (Eriksson, supra, 233 Cal.App.4th at
p. 721.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1439, 1449–1451
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.44
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.171
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.402 (Matthew
Bender)
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452. Sudden Emergency
[Name of plaintiff/defendant] claims that [he/she/nonbinary pronoun] was
not negligent because [he/she/nonbinary pronoun] acted with reasonable
care in an emergency situation. [Name of plaintiff/defendant] was not
negligent if [he/she/nonbinary pronoun] proves all of the following:
1. That there was a sudden and unexpected emergency situation in
which someone was in actual or apparent danger of immediate
injury;
2. That [name of plaintiff/defendant] did not cause the emergency;
and
3. That [name of plaintiff/defendant] acted as a reasonably careful
person would have acted in similar circumstances, even if it
appears later that a different course of action would have been
safer.
New September 2003
Directions for Use
The instruction should not be given unless at least two courses of action are
available to the party after the danger is perceived. (Anderson v. Latimer (1985) 166
Cal.App.3d 667, 675 [212 Cal.Rptr. 544].)
Additional instructions should be given if there are alternate theories of negligence.
Sources and Authority
• “Under the ‘sudden emergency’ or ‘imminent peril’ doctrine, ‘a person who,
without negligence on his part, is suddenly and unexpectedly confronted with
peril, arising from either the actual presence, or the appearance, of imminent
danger to himself or to others, is not expected nor required to use the same
judgment and prudence that is required of him in the exercise of ordinary care in
calmer and more deliberate moments.’ ‘A party will be denied the benefit of the
doctrine . . . where that party’s negligence causes or contributes to the creation
of the perilous situation.’” (Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298,
301–302 [266 Cal.Rptr.3d 636], internal citations omitted.)
• “The doctrine of imminent peril is available to either plaintiff or defendant, or, in
a proper case, to both.” (Smith v. Johe (1957) 154 Cal.App.2d 508, 511 [316
P.2d 688].)
• “Whether the conditions for application of the imminent peril doctrine exist is
itself a question of fact to be submitted to the jury.” (Damele v. Mack Trucks,
Inc. (1990) 219 Cal.App.3d 29, 37 [267 Cal.Rptr. 197].)
• “The doctrine of imminent peril is properly applied only in cases where an
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unexpected physical danger is presented so suddenly as to deprive the driver of
his power of using reasonable judgment. [Citations.] A party will be denied the
benefit of the doctrine of imminent peril where that party’s negligence causes or
contributes to the creation of the perilous situation. [Citations.]” (Shiver v.
Laramee (2018) 24 Cal.App.5th 395, 399 [234 Cal.Rptr.3d 256].)
• “ ‘The test is whether the actor took one of the courses of action which a
standard man in that emergency might have taken, and such a course is not
negligent even though it led to an injury which might have been prevented by
adopting an alternative course of action.’ [Citation.]” (Schultz v. Mathias (1970)
3 Cal.App.3d 904, 912–913 [83 Cal.Rptr. 888].)
• “An emergency or peril under the sudden emergency or imminent peril doctrine
is a set of facts presented to the person alleged to have been negligent. It is that
actor’s behavior that the doctrine excuses. It is irrelevant for purposes of the
sudden emergency doctrine whether [defendant’s] lane change created a
dangerous situation for [plaintiff] or anyone else; the only relevant emergency is
the one [defendant] faced.” (Abdulkadhim, supra, 53 Cal.App.5th at p. 302,
internal citations omitted, original italics.)
• “The doctrine of imminent peril applies not only when a person perceives danger
to himself, but also when he perceives an imminent danger to others.” (Damele,
supra, 219 Cal.App.3d at p. 36.)
• “[T]he mere appearance of an imminent peril to others—not an actual imminent
peril—is all that is required.” (Damele, supra, 219 Cal.App.3d at p. 37.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1439, 1449–1451
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.7
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03, 1.11,
1.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.250 (Matthew
Bender)
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453. Injury Incurred in Course of Rescue
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was not at fault
for [his/her/nonbinary pronoun] own injury because [he/she/nonbinary
pronoun] was attempting to rescue a person who was in danger [as a
result of [name of defendant]’s negligence].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That there was, or a reasonable person would have perceived that
there was, an emergency situation in which someone was in actual
or apparent danger of immediate injury;
2. That [the emergency/a danger to [name of plaintiff]] was created
by [name of defendant]’s negligence; and
3. That [name of plaintiff] was harmed while attempting to rescue
the person in danger.
New September 2003; Revised December 2011
Directions for Use
This instruction sets forth the rescue doctrine. As originally developed, the doctrine
established a duty of care toward the rescuer and was also the rescuer’s response to
the affirmative defense of contributory negligence when contributory negligence was
a complete bar to recovery. (See Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d
361, 368 [99 Cal.Rptr. 29, 491 P.2d 821].) Today it may be asserted in much the
same way as a response to a claim for comparative fault. (See Neighbarger v. Irwin
Industries, Inc. (1994) 8 Cal.4th 532, 536–537 [34 Cal.Rptr.2d 630, 882 P.2d 347]
[rescue doctrine discussed in case decided after contributory negligence was no
longer a complete bar].)
The doctrine does not apply if the plaintiff acted rashly or recklessly in attempting
the rescue. The defendant has the burden of proving rash or reckless conduct.
(Solgaard, supra, 6 Cal.3d at p. 368.)
One older case has held that the doctrine can apply to a defendant other than one
who created the emergency if the defendant negligently increased the plaintiff’s
peril. (See Scott v. Texaco, Inc. (1966) 239 Cal.App.2d 431, 435–436 [48
Cal.Rptr.785] [defendant’s vehicle negligently struck plaintiff while she was trying
to stop traffic because of an accident up ahead].) Subsequently, the California
Supreme Court stated the doctrine as a right to recover from the person whose
negligence created the peril. (Solgaard, supra, 6 Cal.3d at p. 368, emphasis added.)
However, the negligence of someone other than the one who created the emergency
was not at issue in the case, so it is not clear that the court’s language would
foreclose such a claim. To use this instruction for such a case, select “a danger to
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[name of plaintiff]” in element 2. Also omit the bracketed material in the opening
sentence.
Sources and Authority
• “The cases have developed the rule that persons injured in the course of
undertaking a necessary rescue may, absent rash or reckless conduct on their
part, recover from the person whose negligence created the peril which
necessitated the rescue. [¶] Although its precise limits are not yet fully
developed, the rescue doctrine varies the ordinary rules of negligence in two
important respects: (1) it permits the rescuer to sue on the basis of defendant’s
initial negligence toward the party rescued, without the necessity of proving
negligence toward the rescuer, and (2) it substantially restricts the availability of
the defense of contributory negligence by requiring defendant to prove that the
rescuer acted rashly or recklessly under the circumstances.” (Solgaard, supra, 6
Cal.3d at p. 368, footnote omitted.)
• “The rescue doctrine contemplates a voluntary act by one who, in an emergency
and prompted by spontaneous human motive to save human life, attempts a
rescue that he had no duty to attempt by virtue of a legal obligation or duty
fastened on him by his employment.” (Bryant v. Glastetter (1995) 32
Cal.App.4th 770, 784 [38 Cal.Rptr.2d 291].)
• “[T]he rescue doctrine arose in an era of contributory negligence, where any
negligence on the part of a plaintiff barred the action. ‘The purpose of the rescue
doctrine when it was first created was to avoid having a plaintiff be found
contributorily negligent as a matter of law when he voluntarily placed himself in
a perilous position to prevent another person from suffering serious injury or
death, the courts often stating that the plaintiff’s recovery should not be barred
unless his rescue attempt was recklessly or rashly made.’ Most defendants could
point to some negligence by the rescuer and simply approaching the danger
could be construed as negligent, or as an assumption of the risk. This advanced
no tenable public policy: It deterred rescues and ran counter to the human
impulse to help others in need. Accordingly, the courts ruled the act of
approaching danger did not interrupt the normal causal reach of tort liability and
did not, of itself, establish contributory negligence.” (Sears v. Morrison (1999)
76 Cal.App.4th 577, 581 [90 Cal.Rptr.2d 528], internal citations omitted.)
• “In order to assert the rescue doctrine, the rescuer must show that there was
someone in peril and that he acted to rescue such person from the peril.” (Tucker
v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1252 [124 Cal.Rptr.3d
245].)
• “The evidence in the instant case was uncontradicted that defendant’s employees
. . . were in peril of their lives, that immediate action was required to save or
assist them, that plaintiff undertook to rescue them, and that he was injured
while in the course of doing so. It is apparent, therefore, that plaintiff was, as a
matter of law, a rescuer and entitled to the benefits of the rescuer doctrine,
including an instruction to the jury that as a rescuer, plaintiff could recover on
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the basis of defendant’s negligence to [its employees], if plaintiff’s injury was a
proximate result thereof, and if plaintiff acted neither rashly nor recklessly under
the circumstances.” (Solgaard, supra, 6 Cal.3d at p. 369.)
• “One also generally owes a duty of care to bystanders who attempt a rescue that
becomes necessary due to one’s own negligence. Thus, although it is
contributory negligence unreasonably to expose oneself to a risk created by the
defendant’s negligence, a person is not contributorily negligent who, with due
care, encounters the risk created by the defendant’s negligence in order to
perform a rescue necessitated by that negligence.” (Neighbarger, supra, 8 Cal.4th
at pp. 536–537, internal citation omitted.)
• “We do not accept this narrow view of the rescue rule, which would focus
attention on the person creating the original danger and not on the person of the
rescuer. We think the force of the rule should properly be centered on the
rescuer, for it is the quality of his conduct which is being weighed. Whether he
was induced to enter a position of danger as a result of the act of a particular
defendant or as a result of some outside force is inconsequential to the process
of evaluating the quality of his behavior.” (Scott, supra, 239 Cal.App.2d at pp.
435–436.)
• “[Plaintiff] asserts that he should not have been required to show that
respondents’ negligence threatened real and imminent harm to himself or others,
but only that he reasonably perceived the appearance of such danger . . . . We
agree.” (Harris v. Oaks Shopping Ctr. (1999) 70 Cal.App.4th 206, 210 [82
Cal.Rptr.2d 523].)
• “Under the rescue doctrine, an actor is usually liable for injuries sustained by a
rescuer attempting to help another person placed in danger by the actor’s
negligent conduct. The question here is whether an actor is liable for injuries
sustained by a person who is trying to rescue the actor from his own negligence.
The answer is yes.” (Sears, supra, 76 Cal.App.4th at p. 579, original italics.)
• “In general, the rescue doctrine permits a rescuer to recover for injuries
sustained while attempting to rescue a party placed in danger by the defendant’s
conduct. In this case we conclude that the rescuer cannot maintain negligence
claims against defendant because he failed to establish that a duty of care was
owed to the rescued party.” (Tucker, supra, 194 Cal.App.4th at p. 1248.)
• “There is some disagreement among the authorities where the danger is only to
property. In Henshaw v. Belyea (1934) 220 C. 458, 31 P.2d 348, plaintiff ran
from a safe place on the sidewalk in an attempt to save his employer’s truck
from slipping downhill by placing a block under a wheel, and his foot was
crushed. The court approved the extension of the rescue doctrine to such a case.
(220 C. 463.) (See 23 Cal. L. Rev. 110; 8 So. Cal. L. Rev. 159.)” (6 Witkin
Summary of California Law (10th ed. 2005) Torts, § 1308.)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1463–1465
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.41
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03[4], 1.30
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence,
§ 380.30[5][e][v] (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.140 (Matthew
Bender)
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454. Affirmative Defense—Statute of Limitations
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [name of plaintiff]’s claimed harm occurred
before [insert date from applicable statute of limitation].
New April 2007; Revised December 2007
Directions for Use
This instruction states the common-law rule that an action accrues on the date of
injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [245 Cal.Rptr. 658, 751
P.2d 923].) The date to be inserted is the applicable limitation period before the
filing date. For example, if the limitation period is two years and the filing date is
August 31, 2007, the date is August 31, 2005.
For an instruction on the delayed-discovery rule, see CACI No. 455, Statute of
Limitations—Delayed Discovery. See also verdict form CACI No. VF-410, Statute
of Limitations—Delayed Discovery—Reasonable Investigation Would Not Have
Disclosed Pertinent Facts.
Do not use this instruction for attorney malpractice. (See CACI No. 610, Affırmative
Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit, and CACI
No. 611, Affırmative Defense—Statute of Limitations—Attorney Malpractice—Four-
Year Limit.)
“Claimed harm” refers to all of the elements of the cause of action, which must
have occurred before the cause of action accrues and the limitation period begins.
(Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1029 [98
Cal.Rptr.2d 661].) In some cases, it may be necessary to modify this term to refer to
specific facts that give rise to the cause of action.
Sources and Authority
• Two-Year Statute of Limitations. Code of Civil Procedure section 335.1.
• Three-Year Statute of Limitations. Code of Civil Procedure section 338(c).
• One-Year Statute of Limitations. Code of Civil Procedure section 340.2(c).
• “A limitation period does not begin until a cause of action accrues, i.e., all
essential elements are present and a claim becomes legally actionable.” (Glue-
Fold, Inc., supra, 82 Cal.App.4th at p. 1029, internal citations omitted.)
• “ ‘ “ ‘ “Ordinarily this is when the wrongful act is done and the obligation or the
liability arises, but it does not ‘accrue until the party owning it is entitled to
begin and prosecute an action thereon.’ ” . . . In other words, “[a] cause of
action accrues ‘upon the occurrence of the last element essential to the cause of
action.’ ” ’ ” ’ ” (Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 323
[226 Cal.Rptr.3d 267], original italics.)
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• “It is undisputed that plaintiffs discovered shortly after the accident in 2010 that
[defendant] had failed to secure the insurance coverage plaintiffs requested.
Thus, this case does not involve the delayed discovery doctrine, which makes
‘accrual of a cause of action contingent on when a party discovered or should
have discovered that his or her injury had a wrongful cause.’ In delayed
discovery cases, ‘plaintiffs are required to conduct a reasonable investigation
after becoming aware of an injury, and are charged with knowledge of the
information that would have been revealed by such an investigation.’ Here, the
question is when plaintiffs incurred ‘actual injury’—not when they discovered
[defendant]’s negligence. The trial court erred to the extent that it relied on the
delayed discovery doctrine to determine when plaintiffs incurred actual injury.”
(Lederer v. Gursey Schneider LLP (2018) 22 Cal.App.5th 508, 521 [231
Cal.Rptr.3d 518], internal citations omitted.)
• “Where, as here, ‘damages are an element of a cause of action, the cause of
action does not accrue until the damages have been sustained. . . . “Mere threat
of future harm, not yet realized, is not enough.” . . . “Basic public policy is best
served by recognizing that damage is necessary to mature such a cause of
action.” . . . Therefore, when the wrongful act does not result in immediate
damage, “the cause of action does not accrue prior to the maturation of
perceptible harm.” ’ ” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604
[129 Cal.Rptr.3d 525].)
• “ ‘[O]nce plaintiff has suffered actual and appreciable harm, neither the
speculative nor uncertain character of damages nor the difficulty of proof will
toll the period of limitation.’ Cases contrast actual and appreciable harm with
nominal damages, speculative harm or the threat of future harm. The mere
breach of duty—causing only nominal damages, speculative harm or the threat
of future harm not yet realized—normally does not suffice to create a cause of
action.” (San Francisco Unified School Dist. v. W. R. Grace & Co. (1995) 37
Cal.App.4th 1318, 1326 [44 Cal.Rptr.2d 305], internal citations omitted.)
• “Violations of a continuing or recurring obligation may give rise to ‘continuous
accrual’ of causes of action, meaning that ‘ “a cause of action accrues each time
a wrongful act occurs, triggering a new limitations period.” [Citation.]’ ”
(Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 59 [247 Cal.Rptr.3d 875].)
• “Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant.” (Czajkowski v. Haskell & White
(2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)
• “ ‘[R]esolution of the statute of limitations issue is normally a question of
fact . . . .’ ” (Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 487 [59
Cal.Rptr.2d 20, 926 P.2d 1114].)
• “Commencement of the statute of limitations is usually a factual question, but
can be resolved as a matter of law when, as here, the material facts are not
disputed.” Moss v. Duncan (2019) 36 Cal.App.5th 569, 574 [248 Cal.Rptr.3d
689].)
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• “Because the relevant facts are not in dispute, the application of the statute of
limitations may be decided as a question of law.” (Lederer, supra, 22
Cal.App.5th at p. 521.)
• “Based upon our review of legal precedent and our understanding of the
principles and policies of the continuous accrual theory, we conclude that the
theory is not limited in its application to cases in which a payor has acted
‘wrongfully’ in the sense of failing or refusing to make a periodic payment to a
payee.” (Blaser v. State Teachers’ Retirement System (2019) 37 Cal.App.5th 349,
372 [249 Cal.Rptr.3d 701].)
• “So long as the time allowed for filing an action is not inherently unreasonable,
California courts afford ‘contracting parties considerable freedom to modify the
length of a statute of limitations.’ ” (Wind Dancer Production Group v. Walt
Disney Pictures (2017) 10 Cal.App.5th 56, 74 [215 Cal.Rptr.3d 835].)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493–507, 553–592, 673
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal
of Tort Actions, §§ 71.01–71.06 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§§ 345.19, 345.20 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.20 et seq.
(Matthew Bender)
1 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 17,
Preparing the Answer, § 17-IV[I]
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455. Statute of Limitations—Delayed Discovery
If [name of defendant] proves that [name of plaintiff]’s claimed harm
occurred before [insert date from applicable statute of limitations], [name of
plaintiff]’s lawsuit was still filed on time if [name of plaintiff] proves that
before that date,
[[name of plaintiff] did not discover, and did not know of facts that would
have caused a reasonable person to suspect, that [he/she/nonbinary
pronoun/it] had suffered harm that was caused by someone’s wrongful
conduct.]
[or]
[[name of plaintiff] did not discover, and a reasonable and diligent
investigation would not have disclosed, that [specify factual basis for cause
of action, e.g., “a medical device” or “inadequate medical treatment”]
contributed to [name of plaintiff]’s harm.]
New April 2007; Revised December 2007, April 2009, December 2009, May 2020
Directions for Use
Read this instruction with the first option after CACI No. 454, Affırmative
Defense—Statute of Limitations, if the plaintiff seeks to overcome the statute-of-
limitations defense by asserting the “delayed-discovery rule” or “discovery rule.”
The discovery rule provides that the accrual date of a cause of action is delayed
until the plaintiff is aware of the plaintiff’s injury and its negligent cause. (Jolly v.
Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [245 Cal.Rptr. 658, 751 P.2d 923].)
The date to be inserted is the applicable limitation period before the filing date. For
example, if the limitation period is two years and the filing date is August 31, 2009,
the date is August 31, 2007.
If the facts suggest that even if the plaintiff had conducted a timely and reasonable
investigation, it would not have disclosed the limitation-triggering information, read
the second option. (See Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th 797 [27
Cal.Rptr.3d 661, 110 P.3d 914] [fact that plaintiff suspected her injury was caused
by surgeon’s negligence and timely filed action for medical negligence against
health care provider did not preclude “discovery rule” from delaying accrual of
limitations period on products liability cause of action against medical staple
manufacturer whose role in causing injury was not known and could not have been
reasonably discovered within the applicable limitations period commencing from
date of injury].)
See also verdict form CACI No. VF-410, Statute of Limitations—Delayed
Discovery—Reasonable Investigation Would Not Have Disclosed Pertinent Facts.
Do not use this instruction for medical malpractice (see CACI No. 555, Affırmative
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Defense—Statute of Limitations—Medical Malpractice—One-Year Limit, and CACI
No. 556, Affırmative Defense—Statute of Limitations—Medical Malpractice—Three-
Year Limit) or attorney malpractice (see CACI No. 610, Affırmative
Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit, and CACI
No. 611, Affırmative Defense—Statute of Limitations—Attorney Malpractice—Four-
Year Limit). Also, do not use this instruction if the case was timely but a fictitiously
named defendant was identified and substituted in after the limitation period expired.
(See McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942 [63 Cal.Rptr.3d 615]
[if lawsuit is initiated within the applicable period of limitations against one party
and the plaintiff has complied with Code of Civil Procedure section 474 by alleging
the existence of unknown additional defendants, the relevant inquiry when the
plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts
the plaintiff actually knew at the time the original complaint was filed].)
“Claimed harm” refers to all of the elements of the cause of action, which must
have occurred before the cause of action accrues and the limitation period begins.
(Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1029 [98
Cal.Rptr.2d 661].) In some cases, it may be necessary to modify this term to refer to
specific facts that give rise to the cause of action.
Sources and Authority
• “An exception to the general rule for defining the accrual of a cause of
action—indeed, the ‘most important’ one—is the discovery rule. . . . It
postpones accrual of a cause of action until the plaintiff discovers, or has reason
to discover, the cause of action. [¶] . . . [T]he plaintiff discovers the cause of
action when he at least suspects a factual basis, as opposed to a legal theory, for
its elements, even if he lacks knowledge thereof—when, simply put, he at least
‘suspects . . . that someone has done something wrong’ to him, ‘wrong’ being
used, not in any technical sense, but rather in accordance with its ‘lay
understanding.’ He has reason to discover the cause of action when he has
reason at least to suspect a factual basis for its elements. He has reason to
suspect when he has ‘notice or information of circumstances to put a reasonable
person on inquiry’; he need not know the ‘specific “facts” necessary to establish’
the cause of action; rather, he may seek to learn such facts through the ‘process
contemplated by pretrial discovery’; but, within the applicable limitations period,
he must indeed seek to learn the facts necessary to bring the cause of action in
the first place—he ‘cannot wait for’ them to ‘find him’ and ‘sit on’ his ‘rights’;
he ‘must go find’ them himself if he can and ‘file suit’ if he does.” (Norgart v.
Upjohn Co. (1999) 21 Cal.4th 383, 397–398 [87 Cal.Rptr.2d 453, 981 P.2d 79],
original italics, internal citations and footnote omitted.)
• “[I]t is the discovery of facts, not their legal significance, that starts the statute.”
(Jolly, supra, 44 Cal.3d at p. 1113.)
• “Jolly ‘sets forth two alternate tests for triggering the limitations period: (1) a
subjective test requiring actual suspicion by the plaintiff that the injury was
caused by wrongdoing; and (2) an objective test requiring a showing that a
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reasonable person would have suspected the injury was caused by wrongdoing.
[Citation.] The first to occur under these two tests begins the limitations
period.’ ” (Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1552
[178 Cal.Rptr.3d 897].)
• “While ignorance of the existence of an injury or cause of action may delay the
running of the statute of limitations until the date of discovery, the general rule
in California has been that ignorance of the identity of the defendant is not
essential to a claim and therefore will not toll the statute.” (Bernson v.
Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 [30 Cal.Rptr.2d 440, 873
P.2d 613].)
• “[U]nder the delayed discovery rule, a cause of action accrues and the statute of
limitations begins to run when the plaintiff has reason to suspect an injury and
some wrongful cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis for that
particular cause of action. In that case, the statute of limitations for that cause of
action will be tolled until such time as a reasonable investigation would have
revealed its factual basis.” (Fox, supra, 35 Cal.4th at p. 803.)
• “[A]s Fox teaches, claims based on two independent legal theories against two
separate defendants can accrue at different times.” (E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1323 [64 Cal.Rptr.3d 9].)
• “A limitation period does not begin until a cause of action accrues, i.e., all
essential elements are present and a claim becomes legally actionable. Developed
to mitigate the harsh results produced by strict definitions of accrual, the
common law discovery rule postpones accrual until a plaintiff discovers or has
reason to discover the cause of action.” (Glue-Fold, Inc., supra, 82 Cal.App.4th
at p. 1029, internal citations omitted.)
• “A plaintiff’s inability to discover a cause of action may occur ‘when it is
particularly difficult for the plaintiff to observe or understand the breach of duty,
or when the injury itself (or its cause) is hidden or beyond what the ordinary
person could be expected to understand.’ ” (NBCUniversal Media, LLC v.
Superior Court (2014) 225 Cal.App.4th 1222, 1232 [171 Cal.Rptr.3d 1].)
• “[T]he plaintiff may discover, or have reason to discover, the cause of action
even if he does not suspect, or have reason to suspect, the identity of the
defendant. That is because the identity of the defendant is not an element of any
cause of action. It follows that failure to discover, or have reason to discover, the
identity of the defendant does not postpone the accrual of a cause of action,
whereas a like failure concerning the cause of action itself does. ‘Although never
fully articulated, the rationale for distinguishing between ignorance’ of the
defendant and ‘ignorance’ of the cause of action itself ‘appears to be premised
on the commonsense assumption that once the plaintiff is aware of’ the latter, he
‘normally’ has ‘sufficient opportunity,’ within the ‘applicable limitations period,’
‘to discover the identity’ of the former. He may ‘often effectively extend[]’ the
limitations period in question ‘by the filing’ and amendment ‘of a Doe
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complaint’ and invocation of the relation-back doctrine. ‘Where’ he knows the
‘identity of at least one defendant . . . , [he] must’ proceed thus.” (Norgart,
supra, 21 Cal.4th at p. 399, internal citations and footnote omitted.)
• “The discovery rule only delays accrual until the plaintiff has, or should have,
inquiry notice of the cause of action. The discovery rule does not encourage
dilatory tactics because plaintiffs are charged with presumptive knowledge of an
injury if they have ‘ “ ‘information of circumstances to put [them] on inquiry’ ” ’
or if they have ‘ “ ‘the opportunity to obtain knowledge from sources open to
[their] investigation.’ ” ’ In other words, plaintiffs are required to conduct a
reasonable investigation after becoming aware of an injury, and are charged with
knowledge of the information that would have been revealed by such an
investigation.” (Fox, supra, 35 Cal.4th at pp. 807–808, internal citations
omitted.)
• “Thus, a two-part analysis is used to assess when a claim has accrued under the
discovery rule. The initial step focuses on whether the plaintiff possessed
information that would cause a reasonable person to inquire into the cause of his
injuries. Under California law, this inquiry duty arises when the plaintiff
becomes aware of facts that would cause a reasonably prudent person to suspect
his injuries were the result of wrongdoing. If the plaintiff was in possession of
such facts, thereby triggering his duty to investigate, it must next be determined
whether ‘such an investigation would have disclosed a factual basis for a cause
of action[.] [T]he statute of limitations begins to run on that cause of action
when the investigation would have brought such information to light.’ ”
(Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251 [162 Cal.Rptr.3d
617], internal citation omitted.)
• “[I]f continuing injury from a completed act generally extended the limitations
periods, those periods would lack meaning. Parties could file suit at any time, as
long as their injuries persisted. This is not the law. The time bar starts running
when the plaintiff first learns of actionable injury, even if the injury will linger
or compound. ‘ “ ‘[W]here an injury, although slight, is sustained in consequence
of the wrongful act of another, and the law affords a remedy therefor, the statute
of limitations attaches at once. It is not material that all the damages resulting
from the act shall have been sustained at that time, and the running of the
statute is not postponed by the fact that the actual or substantial damages do not
occur until a later date . . . .’ ” ’ ” (Vaca v. Wachovia Mortgage Corp. (2011)
198 Cal.App.4th 737, 745 [129 Cal.Rptr.3d 354], original italics, internal citation
omitted.)
• “[T]he discovery rule ‘may be applied to breaches [of contract] which can be,
and are, committed in secret and, moreover, where the harm flowing from those
breaches will not be reasonably discoverable by plaintiffs until a future time.’ ”
(Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th
56, 73 [215 Cal.Rptr.3d 835].)
• “[T]he trial court erred in concluding that the discovery rule did not pertain to
the limitations period of section 335.1 for medical battery claims.” (Daley v.
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Regents of University of California (2019) 39 Cal.App.5th 595, 606 [252
Cal.Rptr.3d 273].)
• There is no doctrine of constructive or imputed suspicion arising from media
coverage. “[Defendant]’s argument amounts to a contention that, having taken a
prescription drug, [plaintiff] had an obligation to read newspapers and watch
television news and otherwise seek out news of dangerous side effects not
disclosed by the prescribing doctor, or indeed by the drug manufacturer, and that
if she failed in this obligation, she could lose her right to sue. We see no such
obligation.” (Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th
1202, 1206 [48 Cal.Rptr.3d 668].)
• “The statute of limitations does not begin to run when some members of the
public have a suspicion of wrongdoing, but only ‘[o]nce the plaintiff has a
suspicion of wrongdoing.’ ” (Unruh-Haxton v. Regents of University of
California (2008) 162 Cal.App.4th 343, 364 [76 Cal.Rptr.3d 146], original
italics.)
• “Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant. [¶] However, when a plaintiff relies
on the discovery rule or allegations of fraudulent concealment as excuses for an
apparently belated filing of a complaint, ‘the burden of pleading and proving
belated discovery of a cause of action falls on the plaintiff.’ ” (Czajkowski v.
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)
• “ ‘[R]esolution of the statute of limitations issue is normally a question of fact
. . . .’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487 [59
Cal.Rptr.2d 20, 926 P.2d 1114].)
• “More specifically, as to accrual, ‘once properly pleaded, belated discovery is a
question of fact.’ ” (Nguyen, supra, 229 Cal.App.4th at p. 1552.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493–507, 553–592, 673
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue—Statute Of Limitations, ¶¶ 5:108–5:111.6 (The Rutter Group)
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal
of Tort Actions, § 71.03[3] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.19[3] (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, §§ 143.47,
143.52 et seq. (Matthew Bender)
McDonald, California Medical Malpractice: Law and Practice §§ 7:1–7:7 (Thomson
Reuters)
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456. Defendant Estopped From Asserting Statute of Limitations
Defense
[Name of plaintiff] claims that even if [his/her/nonbinary pronoun/its]
lawsuit was not filed on time, [he/she/nonbinary pronoun/it] may still
proceed because [name of defendant] did or said something that caused
[name of plaintiff] to delay filing the lawsuit. In order to establish the
right to proceed, [name of plaintiff] must prove all of the following:
1. That [name of defendant] said or did something that caused [name
of plaintiff] to believe that it would not be necessary to file a
lawsuit;
2. That [name of plaintiff] relied on [name of defendant]’s conduct
and therefore did not file the lawsuit within the time otherwise
required;
3. That a reasonable person in [name of plaintiff]’s position would
have relied on [name of defendant]’s conduct; [and]
[4. That after the limitation period had expired, [name of defendant]’s
representations by words or conduct proved to not be true; and]
5. That [name of plaintiff] proceeded diligently to file suit once [he/
she/nonbinary pronoun/it] discovered the need to proceed.
It is not necessary that [name of defendant] have acted in bad faith or
intended to mislead [name of plaintiff].
New October 2008; Revised December 2014, June 2015, May 2020
Directions for Use
Equitable estoppel, including any disputed issue of fact, is to be decided by the
court, even if there are disputed issues of fact. (Hopkins v. Kedzierski (2014) 225
Cal.App.4th 736, 745 [170 Cal.Rptr.3d 551].) This instruction is for use if the court
submits the issue to the jury for advisory findings.
There is perhaps a question as to whether all the elements of equitable estoppel
must be proved in order to establish an estoppel to rely on a statute of limitations.
These elements are (1) the party to be estopped must know the facts; (2) the party
must intend that the party’s conduct will be acted on, or must act in such a way that
the party asserting the estoppel had the right to believe that the conduct was so
intended; (3) the party asserting the estoppel must be ignorant of the true state of
facts; and, (4) that party must rely upon the conduct to the party’s detriment. (See
Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138 Cal.App.4th 748, 766–767 [41
Cal.Rptr.3d 819]; see also Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th
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1236, 1246 [150 Cal.Rptr.3d 446] [equitable estoppel to deny family leave under
California Family Rights Act].)
Most cases do not frame the issue as one of equitable estoppel and its four
elements. All that is required is that the defendant’s conduct actually have misled
the plaintiff, and that plaintiff reasonably have relied on that conduct. Bad faith or
an intent to mislead is not required. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363,
384 [2 Cal.Rptr.3d 655, 73 P.3d 517]; Shaffer v. Debbas (1993) 17 Cal.App.4th 33,
43 [21 Cal.Rptr.2d 110].) Nor does it appear that there is a requirement that the
defendant specifically intended to induce the plaintiff to defer filing suit. Therefore,
no specific intent element has been included. However, the California Supreme
Court has stated that element 4 is to be given in a construction defect case in which
the defendant has assured the plaintiff that all defects will be repaired. (See Lantzy,
supra, 31 Cal.4th at p. 384.)
Sources and Authority
• “As the name suggests, equitable estoppel is an equitable issue for court
resolution.” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. The
factual findings are purely advisory because, on equitable causes of action, the
judge is the proper fact finder. ‘[W]hile a jury may be used for advisory verdicts
as to questions of fact [in equitable actions], it is the duty of the trial court to
make its own independent findings and to adopt or reject the findings of the jury
as it deems proper.’ ” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156 [85
Cal.Rptr.3d 337], internal citations omitted.)
• “[CACI No. 456 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
estoppel . . . .” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “Equitable tolling and equitable estoppel are distinct doctrines. ‘ “Tolling, strictly
speaking, is concerned with the point at which the limitations period begins to
run and with the circumstances in which the running of the limitations period
may be suspended. . . . Equitable estoppel, however, . . . comes into play only
after the limitations period has run and addresses . . . the circumstances in
which a party will be estopped from asserting the statute of limitations as a
defense to an admittedly untimely action because his conduct has induced
another into forbearing suit within the applicable limitations period. [Equitable
estoppel] is wholly independent of the limitations period itself and takes its life
. . . from the equitable principle that no man [may] profit from his own
wrongdoing in a court of justice.” ’ Thus, equitable estoppel is available even
where the limitations statute at issue expressly precludes equitable tolling.”
(Lantzy, supra, 31 Cal.4th at pp. 383–384, internal citations omitted.)
• “Accordingly, (1) if one potentially liable for a construction defect represents,
while the limitations period is still running, that all actionable damage has been
or will be repaired, thus making it unnecessary to sue, (2) the plaintiff
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reasonably relies on this representation to refrain from bringing a timely action,
(3) the representation proves false after the limitations period has expired, and
(4) the plaintiff proceeds diligently once the truth is discovered, the defendant
may be equitably estopped to assert the statute of limitations as a defense to the
action.” (Lantzy, supra, 31 Cal.4th at p. 384, internal citations omitted.)
• “Equitable estoppel does not require factually misleading statements in all
cases.” (J. P. v. Carlsbad Unified Sch. Dist. (2014) 232 Cal.App.4th 323, 335
[181 Cal.Rptr.3d 286].)
• “ ‘An estoppel may arise although there was no designed fraud on the part of the
person sought to be estopped. . . . To create an equitable estoppel, “it is enough
if the party has been induced to refrain from using such means or taking such
action as lay in his power, by which he might have retrieved his position and
saved himself from loss. . . . Where the delay in commencing action is induced
by the conduct of the defendant it cannot be availed of by him as a defense.” ’ ”
(Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142,
1152–1153 [113 Cal.Rptr.2d 70, 33 P.3d 487].)
• [T]he parties may, by their words or conduct, be estopped from enforcing a
written contract provision. Under the doctrine of estoppel, ‘[a] defendant may be
equitably estopped from asserting a statutory or contractual limitations period as
a defense if the defendant’s act or omission caused the plaintiff to refrain from
filing a timely suit and the plaintiff’s reliance on the defendant’s conduct was
reasonable.’ ‘ “It is not necessary that the defendant acted in bad faith or
intended to mislead the plaintiff. [Citations.] It is sufficient that the defendant’s
conduct in fact induced the plaintiff to refrain from instituting legal proceedings.
[Citation.]” ’ (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10
Cal.App.5th 56, 78–79 [215 Cal.Rptr.3d 835].)
• “ ‘ “[W]hether an estoppel exists—whether the acts, representations or conduct
lulled a party into a sense of security preventing him from instituting
proceedings before the running of the statute, and whether the party relied
thereon to his prejudice—is a question of fact and not of law.” [Citations.]’ ”
(Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 925–926 [73
Cal.Rptr.3d 216], internal citations omitted.)
• “It is well settled that a public entity may be estopped from asserting the
limitations of the claims statute where its agents or employees have prevented or
deterred the filing of a timely claim by some affirmative act. Estoppel most
commonly results from misleading statements about the need for or advisability
of a claim; actual fraud or the intent to mislead is not essential. A fortiori,
estoppel may certainly be invoked when there are acts of violence or
intimidation that are intended to prevent the filing of a claim.” (John R. v.
Oakland Unified Sch. Dist. (1989) 48 Cal.3d 438, 445 [256 Cal.Rptr. 766, 769
P.2d 948], internal citations omitted.)
• “ ‘Estoppel as a bar to a public entity’s assertion of the defense of
noncompliance arises when the plaintiff establishes by a preponderance of the
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evidence: (1) the public entity was apprised of the facts, (2) it intended its
conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts, and
(4) relied upon the conduct to his detriment.’ ” (J.P. supra, 232 Cal.App.4th at p.
333.)
• “It is well settled that the doctrine of estoppel in pais is applicable in a proper
case to prevent a fraudulent or inequitable resort to the statute of limitations.”
(Estate of Pieper (1964) 224 Cal.App.2d 670, 690–691 [37 Cal.Rptr. 46],
internal citations omitted.)
• “Although ‘ignorance of the identity of the defendant . . . will not toll the
statute’, ‘a defendant may be equitably estopped from asserting the statute of
limitations when, as the result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.’ ” (Vaca v. Wachovia Mortgage Corp.
(2011) 198 Cal.App.4th 737, 745 [129 Cal.Rptr.3d 354], original italics, internal
citation omitted.)
• “Settlement negotiations are relevant and admissible to prove an estoppel to
assert the statute of limitations.” (Holdgrafer, supra, 160 Cal.App.4th at p. 927.)
• “The estoppel issue in this case arises in a unique context. Defendants’ wrongful
conduct has given rise to separate causes of action for property damage and
personal injury with separate statutes of limitation. Where the plaintiffs
reasonably rely on defendants’ promise to repair the property damage without a
lawsuit, is a jury permitted to find that plaintiffs’ decision to delay filing a
personal injury lawsuit was also reasonable? We conclude such a finding is
permissible on the facts of this case.” (Shaffer, supra, 17 Cal.App.4th at p. 43,
internal citation omitted.)
• “At the very least, [plaintiff] cannot establish the second element necessary for
equitable estoppel. [Plaintiff] argues that [defendant] was estopped to rely on the
time bar of section 340.9 by its continued reconsideration of her claim after
December 31, 2001, had passed. But she cannot prove [defendant] intended its
reconsideration of the claim to be relied upon, or acted in such a way that
[plaintiff] had a right to believe it so intended.” (Ashou, supra, 138 Cal.App.4th
at p. 767.)
• “ ‘It is well settled that a public entity may be estopped from asserting the
limitations of the claims statute where its agents or employees have prevented or
deterred the filing of a timely claim by some affirmative act.’ Estoppel as a bar
to a public entity’s assertion of the defense of noncompliance arises when a
plaintiff establishes by a preponderance of the evidence (1) the public entity was
apprised of the facts, (2) it intended its conduct to be acted upon, (3) the
plaintiff was ignorant of the true state of facts, and (4) relied upon the conduct
to his detriment.” (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th
1229, 1239–1240 [92 Cal.Rptr.3d 1], internal citation omitted.)
• “A nondisclosure is a cause of injury if the plaintiff would have acted so as to
avoid injury had the plaintiff known the concealed fact. The plaintiff’s reliance
on a nondisclosure was reasonable if the plaintiff’s failure to discover the
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concealed fact was reasonable in light of the plaintiff’s knowledge and
experience. Whether the plaintiff’s reliance was reasonable is a question of fact
for the trier of fact unless reasonable minds could reach only one conclusion
based on the evidence. The fact that a plaintiff was represented by counsel and
the scope and timing of the representation are relevant to the question of the
reasonableness of the plaintiff’s reliance.” (Superior Dispatch, Inc. v. Insurance
Corp. of New York (2010) 181 Cal.App.4th 175, 187–188 [104 Cal.Rptr.3d 508],
internal citations omitted.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 566–581
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue—Statute Of Limitations, ¶ 5:111.6 (The Rutter Group)
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal
of Action, § 71.06 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.81 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.50
(Matthew Bender)
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457. Statute of Limitations—Equitable Tolling—Other Prior
Proceeding
[Name of plaintiff] claims that even if [his/her/nonbinary pronoun/its]
lawsuit was not filed by [insert date from applicable statute of limitations],
[he/she/nonbinary pronoun/it] may still proceed because the deadline for
filing the lawsuit was extended by the time during which [specify prior
proceeding that qualifies as the tolling event, e.g., she was seeking workers’
compensation benefits]. In order to establish the right to proceed, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] received timely notice that [name of
plaintiff] was [e.g., seeking workers’ compensation] instead of filing
a lawsuit;
2. That the facts of the two claims were so similar that an
investigation of the [e.g., workers’ compensation claim] gave or
would have given [name of defendant] the information needed to
defend the lawsuit; and
3. That [name of plaintiff] was acting reasonably and in good faith
by [e.g., seeking workers’ compensation].
For [name of defendant] to have received timely notice, [name of plaintiff]
must have filed the [e.g., workers’ compensation claim] by [insert date from
applicable statute of limitations] and the [e.g., claim] notified [name of
defendant] of the need to begin investigating the facts that form the basis
for the lawsuit.
In considering whether [name of plaintiff] acted reasonably and in good
faith, you may consider the amount of time after the [e.g., workers’
compensation claim] was [resolved/abandoned] before [he/she/nonbinary
pronoun/it] filed the lawsuit.
New December 2009; Revised December 2014
Directions for Use
Equitable tolling, including any disputed issue of fact, is to be decided by the court,
even if there are disputed issues of fact. (Hopkins v. Kedzierski (2014) 225
Cal.App.4th 736, 745 [170 Cal.Rptr.3d 551].) This instruction is for use if the court
submits the issue to the jury for advisory findings.
Equitable tolling is not available for legal malpractice (see Laird v. Blacker (1992) 2
Cal.4th 606, 618 [7 Cal.Rptr.2d 550, 828 P.2d 691] [statutory tolling provisions of
Code Civ Proc., § 340.6 are exclusive for both one-year and four-year limitation
periods]; see also CACI No. 610, Affırmative Defense—Statute of
Limitations—Attorney Malpractice—One-Year Limit, and CACI No. 611, Affırmative
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Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit) nor for
medical malpractice with regard to the three-year limitation period of Code of Civil
Procedure section 340.5. (See Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th
928, 934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [statutory tolling provisions of Code
Civ. Proc., § 340.5 are exclusive only for three-year period; one-year period may be
tolled on other grounds]; see also CACI No. 555, Affırmative Defense—Statute of
Limitations—Medical Malpractice—One-Year Limit, and CACI No. 556, Affırmative
Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit.)
Sources and Authority
• Tolling for Equal Employment Opportunity Commission Investigation.
Government Code section 12965(d)(1).
• “The equitable tolling of statutes of limitations is a judicially created,
nonstatutory doctrine. It is ‘designed to prevent unjust and technical forfeitures
of the right to a trial on the merits when the purpose of the statute of
limitations—timely notice to the defendant of the plaintiff’s claims—has been
satisfied.’ Where applicable, the doctrine will ‘suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness.’ ”
(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99
[84 Cal.Rptr.3d 734, 194 P.3d 1026], internal citations omitted.)
• “The purpose of equitable tolling is to ‘ease[] the pressure on parties
“concurrently to seek redress in two separate forums with the attendant danger
of conflicting decisions on the same issue.” ’ It is intended to benefit the court
system ‘by reducing the costs associated with a duplicative filing requirement, in
many instances rendering later court proceedings either easier and cheaper to
resolve or wholly unnecessary.’ ” (Long v. Forty Niners Football Co. (2019) 33
Cal.App.5th 550, 555 [244 Cal.Rptr.3d 887], internal citation omitted.)
• “While the case law is not entirely clear, it appears that the weight of authority
supports our conclusion that whether a plaintiff has demonstrated the elements of
equitable tolling presents a question of fact.” (Hopkins, supra, 225 Cal.App.4th
at p. 755.)
• “[E]quitable tolling, ‘[a]s the name suggests . . . is an equitable issue for court
resolution.’ ” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. The
factual findings are purely advisory because, on equitable causes of action, the
judge is the proper fact finder. ‘[W]hile a jury may be used for advisory verdicts
as to questions of fact [in equitable actions], it is the duty of the trial court to
make its own independent findings and to adopt or reject the findings of the jury
as it deems proper.’ ” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156 [85
Cal.Rptr.3d 337], internal citations omitted.)
• “[CACI No. 457 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
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. . . tolling.” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “The equitable tolling doctrine rests on the concept that a plaintiff should not be
barred by a statute of limitations unless the defendant would be unfairly
prejudiced if the plaintiff were allowed to proceed. ‘[T]he primary purpose of the
statute of limitations is normally satisfied when the defendant receives timely
notification of the first of two proceedings.’ ” (Aguilera v. Heiman (2009) 174
Cal.App.4th 590, 598 [95 Cal.Rptr.3d 18], internal citations omitted.)
• “Broadly speaking, the doctrine applies ‘ “[w]hen an injured person has several
legal remedies and, reasonably and in good faith, pursues one.” ’ [Citation.]
Thus, it may apply where one action stands to lessen the harm that is the subject
of a potential second action; where administrative remedies must be exhausted
before a second action can proceed; or where a first action, embarked upon in
good faith, is found to be defective for some reason.” (Wassmann v. South
Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 853 [234
Cal.Rptr.3d 712].)
• “[T]he effect of equitable tolling is that the limitations period stops running
during the tolling event, and begins to run again only when the tolling event has
concluded. As a consequence, the tolled interval, no matter when it took place, is
tacked onto the end of the limitations period, thus extending the deadline for suit
by the entire length of time during which the tolling event previously occurred.”
(Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370–371 [2 Cal.Rptr.3d 655, 73
P.3d 517].)
• “A major reason for applying the doctrine is to avoid ‘the hardship of
compelling plaintiffs to pursue several duplicative actions simultaneously on the
same set of facts.’ ‘[D]isposition of a case filed in one forum may render
proceedings in the second unnecessary or easier and less expensive to resolve.’ ”
(Guevara v. Ventura County Community College Dist. (2008) 169 Cal.App.4th
167, 174 [87 Cal.Rptr.3d 50], internal citations omitted.)
• “[A]pplication of the doctrine of equitable tolling requires timely notice, and
lack of prejudice, to the defendant, and reasonable and good faith conduct on the
part of the plaintiff. These elements seemingly are present here. As noted, the
federal court, without prejudice, declined to assert jurisdiction over a timely filed
state law cause of action and plaintiffs thereafter promptly asserted that cause in
the proper state court. Unquestionably, the same set of facts may be the basis for
claims under both federal and state law. We discern no reason of policy which
would require plaintiffs to file simultaneously two separate actions based upon
the same facts in both state and federal courts since ‘duplicative proceedings are
surely inefficient, awkward and laborious.’ ” (Addison v. State (1978) 21 Cal.3d
313, 319 [146 Cal.Rptr. 224, 578 P.2d 941], internal citations omitted.)
• “ ‘ “The timely notice requirement essentially means that the first claim must
have been filed within the statutory period. Furthermore[,] the filing of the first
claim must alert the defendant in the second claim of the need to begin
investigating the facts which form the basis for the second claim. Generally this
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means that the defendant in the first claim is the same one being sued in the
second.” “The second prerequisite essentially translates to a requirement that the
facts of the two claims be identical or at least so similar that the defendant’s
investigation of the first claim will put him in a position to fairly defend the
second.” “The third prerequisite of good faith and reasonable conduct on the part
of the plaintiff is less clearly defined in the cases. But in Addison v. State of
California, supra, 21 Cal.3d 313[,] the Supreme Court did stress that the plaintiff
filed his second claim a short time after tolling ended.” ’ ” (McDonald, supra, 45
Cal.4th at p. 102, fn. 2, internal citations omitted.)
• “The third requirement of good faith and reasonable conduct may turn on
whether ‘a plaintiff delayed filing the second claim until the statute on that claim
had nearly run . . .’ or ‘whether the plaintiff [took] affirmative actions which
. . . misle[d] the defendant into believing the plaintiff was foregoing his second
claim.’ ” (Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172
Cal.App.4th 1494, 1505 [92 Cal.Rptr.3d 131].)
• “Where exhaustion of an administrative remedy is mandatory prior to filing suit,
equitable tolling is automatic: ‘It has long been settled in this and other
jurisdictions that whenever the exhaustion of administrative remedies is a
prerequisite to the initiation of a civil action, the running of the limitations
period is tolled during the time consumed by the administrative proceeding.’
This rule prevents administrative exhaustion requirements from rendering
illusory nonadministrative remedies contingent on exhaustion.” (McDonald,
supra, 45 Cal.4th at p. 101, internal citation omitted.)
• “The trial court rejected equitable tolling on the apparent ground that tolling was
unavailable where, as here, the plaintiff was advised the alternate administrative
procedure he or she was pursuing was voluntary and need not be exhausted. In
reversing summary judgment, the Court of Appeal implicitly concluded equitable
tolling is in fact available in such circumstances and explicitly concluded
equitable tolling is not foreclosed as a matter of law under the FEHA. The Court
of Appeal was correct on each count.” (McDonald, supra, 45 Cal.4th at p. 114.)
• “Equitable tolling and equitable estoppel [see CACI No. 456] are distinct
doctrines. ‘ “Tolling, strictly speaking, is concerned with the point at which the
limitations period begins to run and with the circumstances in which the running
of the limitations period may be suspended. . . . Equitable estoppel,
however, . . . comes into play only after the limitations period has run and
addresses . . . the circumstances in which a party will be estopped from
asserting the statute of limitations as a defense to an admittedly untimely action
because his conduct has induced another into forbearing suit within the
applicable limitations period. [Equitable estoppel] is wholly independent of the
limitations period itself and takes its life . . . from the equitable principle that
no man [may] profit from his own wrongdoing in a court of justice.” ’ ” (Lantzy,
supra, 31 Cal.4th at pp. 383–384.)
• “[V]oluntary abandonment [of the first proceeding] does not categorically bar
application of equitable tolling, but it may be relevant to whether a plaintiff can
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satisfy the three criteria for equitable tolling.” (McDonald, supra, 45 Cal.4th at
p. 111.)
• “The equitable tolling doctrine generally requires a showing that the plaintiff is
seeking an alternate remedy in an established procedural context. Informal
negotiations or discussions between an employer and employee do not toll a
statute of limitations under the equitable tolling doctrine.” (Acuna v. San Diego
Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416 [159 Cal.Rptr.3d 749],
internal citation omitted.)
• “Tolling the FEHA limitation period while the employee awaits the outcome of
an EEOC investigation furthers several policy objectives: (1) the defendant
receives timely notice of the claim; (2) the plaintiff is relieved of the obligation
of pursuing simultaneous actions on the same set of facts; and (3) the costs of
duplicate proceedings often are avoided or reduced.” (Mitchell v. State Dept. of
Public Health (2016) 1 Cal.App.5th 1000, 1008 [205 Cal.Rptr.3d 261].)
• “ ‘[P]utative class members would be ill advised to rely on the mere filing of a
class action complaint to toll their individual statute of limitations.’ A trial court
may, nonetheless, apply tolling to save untimely claims. But in doing so, the
court must address ‘two major policy considerations.’ The first is ‘protection of
the class action device,’ which requires the court to determine whether the denial
of class certification was ‘unforeseeable by class members,’ or whether potential
members, in anticipation of a negative ruling, had already filed ‘ “protective
motions to intervene or to join in the event that a class was later found
unsuitable,” depriving class actions “of the efficiency and economy of litigation
which is a principal purpose of the procedure.” ’ The second consideration is
‘effectuation of the purposes of the statute of limitations,’ and requires the court
to determine whether commencement of the class suit ‘ “notifie[d] the defendants
not only of the substantive claims being brought against them, but also of the
number and generic identities of the potential plaintiffs who may participate in
the judgment.” [Citation.] In these circumstances, . . . the purposes of the statute
of limitations would not be violated by a decision to toll.’ ” (Batze v. Safeway,
Inc. (2017) 10 Cal.App.5th 440, 482–483 [216 Cal.Rptr.3d 390], internal
citations omitted.)
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
not enumerated in the statute.” (Laird, supra, 2 Cal.4th at p. 618 [applying rule
to one-year limitation period].)
• “We see no reason to apply the second sentence of section 340.5 to the one-year
period it does not mention, in addition to the three-year period it does mention.
The general purpose of MICRA does not require us to expand that sentence
beyond its language.” (Belton, supra, 20 Cal.4th at p. 934 [rejecting application
of rule to one-year limitation period].)
• “[E]quitable tolling has never been applied to allow a plaintiff to extend the time
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for pursuing an administrative remedy by filing a lawsuit. Despite broad
language used by courts in employing the doctrine, equitable tolling has been
applied almost exclusively to extend statutory deadlines for judicial actions,
rather than deadlines for commencing administrative proceedings.” (Bjorndal v.
Superior Court (2012) 211 Cal.App.4th 1100, 1109 [150 Cal.Rptr.3d 405].)
• “Plaintiffs cite no authority, and we are aware of none, that would allow a
plaintiff in one case to equitably toll the limitation period based on the filing of
a stranger’s lawsuit.” (Reid v. City of San Diego (2018) 23 Cal.App.5th 901, 916
[234 Cal.Rptr.3d 636].)
• “Equitable tolling applies to claims under FEHA during the period in which the
plaintiff exhausts administrative remedies or when the plaintiff voluntarily
pursues an administrative remedy or nonmandatory grievance procedure, even if
exhaustion of that remedy is not mandatory.” (Wassmann, supra, 24 Cal.App.5th
at pp. 853–854.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Actions, § 760 et seq.
Turner et al., California Practice Guide: Civil Procedure Before Trial—Statutes of
Limitations, Ch. 1-A, Definitions And Distinctions ¶ 1:57.2 (The Rutter Group)
3 California Torts, Ch. 32, Liability of Attorneys, § 32.60[1][g.1] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.21 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.46
(Matthew Bender)
458–459. Reserved for Future Use
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460. Strict Liability for Ultrahazardous Activities—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] was engaged in an
ultrahazardous activity that caused [him/her/nonbinary pronoun/it] to be
harmed and that [name of defendant] is responsible for that harm.
People who engage in ultrahazardous activities are responsible for the
harm these activities cause others, regardless of how carefully they carry
out these activities. [Insert ultrahazardous activity] is an ultrahazardous
activity.
To establish [his/her/nonbinary pronoun/its] claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] was engaged in [insert ultrahazardous
activity];
2. That [name of plaintiff] was harmed;
3. That [name of plaintiff]’s harm was the kind of harm that would
be anticipated as a result of the risk created by [insert
ultrahazardous activity]; and
4. That [name of defendant]’s [insert ultrahazardous activity] was a
substantial factor in causing [name of plaintiff]’s harm.
New September 2003
Sources and Authority
• “The doctrine of ultrahazardous activity provides that one who undertakes an
ultrahazardous activity is liable to every person who is injured as a proximate
result of that activity, regardless of the amount of care he uses.” (Pierce v.
Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85 [212 Cal.Rptr. 283],
internal citations omitted.)
• Whether an activity is ultrahazardous is a question of law to be determined by
the court. (Luthringer v. Moore (1948) 31 Cal.2d 489, 496 [190 P.2d 1].)
• Restatement of Torts Second, section 519, provides:
(1) One who carries on an abnormally dangerous activity is subject
to liability for harm to the person, land or chattels of another
resulting from the activity, although he has exercised the utmost care
to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility
of which makes the activity abnormally dangerous.
• Restatement of Torts Second, section 520, provides:
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In determining whether an activity is abnormally dangerous, the following
factors are to be considered:
(a) existence of a high degree of risk of some harm to the person,
land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried
on; and
(f) extent to which its value to the community is outweighed by its
dangerous attributes.
• Section 519 formerly provided, in part, that “one who carries on an
ultrahazardous activity is liable to another whose person, land or chattels the
actor should recognize is likely to be harmed by the unpreventable miscarriage
of the activity for harm resulting thereto from that which makes the activity
ultrahazardous, although the utmost care is exercised to prevent the harm.” This
section was followed by the court in Luthringer, supra, and by other courts in
subsequent cases. (See Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413,
418 [228 Cal.Rptr. 108].) This statement regarding forseeability is evidently still
good law in California, even though the wording of section 519 does not
presently contain the limitation.
• Strict liability in this context has been confined to “consequences which lie
within the extraordinary risk posed by the abnormally dangerous activity and is
limited to the ‘class of persons who are threatened by the abnormal danger, and
the kind of damage they may be expected to incur.’ ” (Goodwin v. Reilley (1985)
176 Cal.App.3d 86, 92 [221 Cal.Rptr. 374], citing Prosser & Keeton, The Law
of Torts (5th ed. 1984) § 75, p. 562.)
• “The important factor is that certain activities under certain conditions may be so
hazardous to the public generally, and of such relative infrequent occurrence,
that it may well call for strict liability as the best public policy.” (Luthringer,
supra, 31 Cal.2d at p. 500.)
• “It is axiomatic that an essential element of a plaintiff’s cause of action, whether
based on negligence or strict liability, is the existence of a causal connection
between defendant’s act and the injury which plaintiff suffered.” (Smith v.
Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 780 [56 Cal.Rptr. 128],
internal citations omitted.)
• Defendant contended that the strict liability doctrine “cannot be applied unless
the defendant is aware of the abnormally dangerous condition or activity.” This
is unsound: One who carried on such an “activity is liable for injuries to a
person whom the actor reasonably should recognize as likely to be harmed . . . ,
even though ‘the utmost care is exercised to prevent the harm.’ ” (Garcia, supra,
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183 Cal.App.3d at p. 420, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1575–1588 et seq.
1 Levy et al., California Torts, Ch. 7, Strict Liability for Hazardous Activities,
§§ 7.01–7.06 (Matthew Bender)
1 California Environmental Law & Land Use Practice, Ch. 1, Nuisance, Trespass,
and Strict Liability for Ultrahazardous Activities (Matthew Bender)
1A California Trial Guide, Unit 11, Opening Statement, § 11.55 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
23 California Points and Authorities, Ch. 234, Ultrahazardous Activities (Matthew
Bender)
1 California Civil Practice: Torts §§ 2:4–2:10 (Thomson Reuters)
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461. Strict Liability for Injury Caused by Wild Animal—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant]’s [insert type of animal]
harmed [him/her/nonbinary pronoun] and that [name of defendant] is
responsible for that harm.
People who own, keep, or control wild animals are responsible for the
harm that these animals cause to others, no matter how carefully they
guard or restrain their animals.
To establish [his/her/nonbinary pronoun] claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] owned, kept, or controlled [a/an] [insert
type of animal];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s [insert type of animal] was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2015, June 2016
Directions for Use
Give this instruction to impose strict liability on an animal owner for injuries caused
by an animal of a type that is inherently dangerous without the need to show the
owner’s knowledge of dangerousness. (See Baugh v. Beatty (1949) 91 Cal.App.2d
786, 791–792 [205 P.2d 671].) For an instruction for use for a domestic animal if it
is alleged that the owner knew or should have known that the animal had a
dangerous propensity, see CACI No. 462, Strict Liability for Injury Caused by
Domestic Animal With Dangerous Propensity. (See Thomas v. Stenberg (2012) 206
Cal.App.4th 654, 665 [142 Cal.Rptr.3d 24].) For an instruction on statutory strict
liability under the dog-bite statute, see CACI No. 463, Dog Bite Statute—Essential
Factual Elements.
Whether the determination that the animal that caused injury is a “wild animal”
triggering this instruction is a matter of law for the court or can be a question of
fact for the jury has apparently not been addressed by the courts.
Sources and Authority
• “The keeper of an animal of a species dangerous by nature . . . is liable,
without wrongful intent or negligence, for damage to others resulting from such
a propensity. The liability of the keeper is absolute, for ‘[the] gist of the action is
not the manner of keeping the vicious animal, but the keeping him at all with
knowledge of the vicious propensities. [Citation.] In such instances the owner is
an insurer against the acts of the animal, to one who is injured without fault, and
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the question of the owner’s negligence is not in the case.’ ” (Hillman v. Garcia-
Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033].)
• “[I]f the animal which inflicted the injury is vicious and dangerous, known to the
defendant to be such, an allegation of negligence on the part of defendant is
unnecessary and the averment, if made, may be treated as surplusage.” (Baugh,
supra, 91 Cal.App.2d at p. 791.)
• “[A] wild animal is presumed to be vicious and since the owner of such an
animal . . . is an insurer against the acts of the animal to anyone who is injured,
and unless such person voluntarily or consciously does something which brings
the injury on himself, the question of the owner’s negligence is not in the case.”
Baugh, supra, 91 Cal.App.2d at p. 791.)
• “The court instructed the jury with respect to the liability of the keeper of a
vicious or dangerous animal, known to be such by its owner. Although plaintiff
has not raised any objection to this instruction, it was not proper in the instant
case since the animal was of the class of animals ferae naturae, of known
savage and vicious nature, and hence an instruction on the owner’s knowledge of
its ferocity was unnecessary.” (Baugh, supra, 91 Cal.App.2d at pp. 791–792.)
• “[Strict] liability has been imposed on ‘keepers of lions and tigers, bears,
elephants, wolves [and] monkeys.’ ” (Rosenbloom v. Hanour Corp. (1998) 66
Cal.App.4th 1477, 1479, fn. 1 [78 Cal.Rptr.2d 686].)
• “The owner of a naturally dangerous animal may be excused from the usual duty
of care: ‘In cases involving “primary assumption of risk”—where, by virtue of
the nature of the activity and the parties’ relationship to the activity, the
defendant owes no legal duty to protect the plaintiff from the particular risk of
harm that caused the injury—the doctrine . . . operates as a complete bar to the
plaintiff’s recovery.’ ” (Rosenbloom, supra, 66 Cal.App.4th at p. 1479, internal
citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1563
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.23 (Matthew Bender)
1 California Civil Practice: Torts §§ 2:20–2:21 (Thomson Reuters)
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462. Strict Liability for Injury Caused by Domestic Animal With
Dangerous Propensities—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant]’s [insert type of animal]
harmed [him/her/nonbinary pronoun] and that [name of defendant] is
responsible for that harm.
People who own, keep, or control animals with unusually dangerous
natures or tendencies can be held responsible for the harm that their
animals cause to others, no matter how carefully they guard or restrain
their animals.
To establish [his/her/nonbinary pronoun] claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] owned, kept, or controlled a [insert type
of animal];
2. That the [insert type of animal] had an unusually dangerous
nature or tendency;
3. That before [name of plaintiff] was injured, [name of defendant]
knew or should have known that the [insert type of animal] had
this nature or tendency;
4. That [name of plaintiff] was harmed; and
5. That the [insert type of animal]’s unusually dangerous nature or
tendency was a substantial factor in causing [name of plaintiff]’s
harm.
New September 2003; Revised April 2007, June 2013
Directions for Use
Give this instruction to impose strict liability on an animal owner if the owner knew
or should have known that the animal had a dangerous propensity. (See Thomas v.
Stenberg (2012) 206 Cal.App.4th 654, 665 [142 Cal.Rptr.3d 24].) There is also strict
liability for injuries caused by animals of a type that are inherently dangerous
without the need to show the owner’s knowledge of dangerousness. (Baugh v. Beatty
(1949) 91 Cal.App.2d 786, 791–792 [205 P.2d 671]; see CACI No. 461, Strict
Liability for Injury Caused by Wild Animal—Essential Factual Elements.)
For an instruction on statutory strict liability under the dog-bite statute, see CACI
No. 463, Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements.
Sources and Authority
• “A common law strict liability cause of action may also be maintained if the
owner of a domestic animal that bites or injures another person knew or had
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reason to know of the animal’s vicious propensities. If [defendant] knew or
should have known of his dog’s vicious propensities and failed to inform
[plaintiff] of such facts, he could be found to have exposed [plaintiff] to an
unknown risk and thereby be held strictly liable at common law for her injuries.
Under such circumstances, the defense of primary assumption of risk would not
bar [plaintiff]’s claim since she could not be found to have assumed a risk of
which she was unaware.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115–1116
[47 Cal.Rptr.3d 553, 140 P.3d 848], original italics, internal citations omitted.)
• “The doctrine of strict liability for harm done by animals has developed along
two separate and independent lines: (1) Strict liability for damages by
trespassing livestock, and (2) strict liability apart from trespass (a) for damages
by animals of a species regarded as inherently dangerous, and (b) for damages
by animals of a species not so regarded but which, in the particular case, possess
dangerous propensities which were or should have been known to the possessor.”
(Thomas, supra, 206 Cal.App.4th at p. 665.)
• “California has long followed the common law rule of strict liability for harm
done by a domestic animal with known vicious or dangerous propensities
abnormal to its class.” (Drake v. Dean (1993) 15 Cal.App.4th 915, 921 [19
Cal.Rptr.2d 325].)
• Any propensity that is likely to cause injury under the circumstances is a
dangerous or vicious propensity within the meaning of the law. (Talizin v. Oak
Creek Riding Club (1959) 176 Cal.App.2d 429, 437 [1 Cal.Rptr. 514].)
• The question of whether a domestic animal is vicious or dangerous is ordinarily
a factual one for the jury. (Heath v. Fruzia (1942) 50 Cal.App.2d 598, 601 [123
P.2d 560].)
• “ ‘The gist of the action is not the manner of keeping the vicious animal, but the
keeping him at all with knowledge of the vicious propensities. In such instances
the owner is an insurer against the acts of the animal, to one who is injured
without fault, and the question of the owner’s negligence is not in the case.’ ”
(Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033], internal
citations omitted.)
• “The absolute duty to restrain the dog could not be invoked unless the jury
found, not only that the dog had the alleged dangerous propensity, but that
defendants knew or should have known that it had.” (Hillman, supra, 44 Cal.2d
at p. 628.)
• “[N]egligence may be predicated on the characteristics of the animal which,
although not abnormal to its class, create a foreseeable risk of harm. As to those
characteristics, the owner has a duty to anticipate the harm and to exercise
ordinary care to prevent the harm.” (Drake, supra, 15 Cal.App.4th at p. 929.)
• “It is well settled in cases such as this (the case involved a bull) that the owner
of an animal, not naturally vicious, is not liable for an injury done by it, unless
two propositions are established: 1. That the animal in fact was vicious, and 2.
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That the owner knew it.” (Mann v. Stanley (1956) 141 Cal.App.2d 438, 441 [296
P.2d 921].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1575–1588 et seq.
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.33 (Matthew Bender)
1 California Civil Practice: Torts, §§ 2:20–2:21 (Thomson Reuters)
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463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant]’s dog bit
[him/her/nonbinary pronoun] and that [name of defendant] is responsible
for that harm.
People who own dogs can be held responsible for the harm from a dog
bite, no matter how carefully they guard or restrain their dogs.
To establish [his/her/nonbinary pronoun] claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] owned a dog;
2. That the dog bit [name of plaintiff] while [he/she/nonbinary
pronoun] was in a public place or lawfully on private property;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s dog was a substantial factor in causing
[name of plaintiff]’s harm.
[[Name of plaintiff] was lawfully on private property of the owner if [he/
she/nonbinary pronoun] was performing any duty required by law or was
on the property at the invitation, express or implied, of the owner.]
New September 2003; Revised April 2007, May 2020
Directions for Use
Read the last optional paragraph if there is an issue regarding whether the plaintiff
was lawfully on private property when the plaintiff was bitten.
For an instruction on common-law liability based on the defendant’s knowledge of
his or her pet’s dangerous propensities, see CACI No. 462, Strict Liability for Injury
Caused by Domestic Animal With Dangerous Propensities—Essential Factual
Elements.
Sources and Authority
• Liability for Dog Bites. Civil Code section 3342(a).
• This statute creates an exception to the general rule that an owner is not strictly
liable for harm caused by a domestic animal absent knowledge of the animal’s
vicious propensity. (Hicks v. Sullivan (1932) 122 Cal.App. 635, 639 [10 P.2d
516].)
• It is not necessary that the skin be broken in order for the statute to apply.
(Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176 [80 Cal.Rptr.2d 173].)
• “The defenses of assumption of the risk and contributory negligence may still be
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asserted” in an action brought under section 3342. (Johnson, supra, 68
Cal.App.4th at p. 176.)
• “A veterinarian or a veterinary assistant who accepts employment for the
medical treatment of a dog, aware of the risk that any dog, regardless of its
previous nature, might bite while being treated, has assumed this risk as part of
his or her occupation.” (Nelson v. Hall (1985) 165 Cal.App.3d 709, 715 [211
Cal.Rptr. 668], original italics.)
• “[Plaintiff], by virtue of the nature of her occupation as a kennel worker,
assumed the risk of being bitten or otherwise injured by the dogs under her care
and control while in the custody of the commercial kennel where she worked
pursuant to a contractual boarding agreement. The Court of Appeal correctly
concluded a strict liability cause of action under the dog bite statute (§ 3342)
was therefore unavailable to [plaintiff].” (Priebe v. Nelson (2006) 39 Cal.4th
1112, 1132 [47 Cal.Rptr.3d 553, 140 P.3d 848].)
• The definition of “lawfully upon the private property of such owner” effectively
prevents trespassers from obtaining recovery under the Dog Bite Statute.
(Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358 [197 P.2d 59].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1569–1573
California Tort Guide (Cont.Ed.Bar 3d ed.) § 3.2
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, § 6.12 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability (Matthew Bender)
1 California Civil Practice: Torts § 2:16 (Thomson Reuters)
464–469. Reserved for Future Use
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470. Primary Assumption of Risk—Exception to
Nonliability—Coparticipant in Sport or Other Recreational Activity
[Name of plaintiff] claims [he/she/nonbinary pronoun] was harmed while
participating in [specify sport or other recreational activity, e.g., touch
football] and that [name of defendant] is responsible for that harm. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] either intentionally injured [name of
plaintiff] or acted so recklessly that [his/her/nonbinary pronoun]
conduct was entirely outside the range of ordinary activity
involved in [e.g., touch football];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Conduct is entirely outside the range of ordinary activity involved in
[e.g., touch football] if that conduct (1) increased the risks to [name of
plaintiff] over and above those inherent in [e.g., touch football], and (2) it
can be prohibited without discouraging vigorous participation or
otherwise fundamentally changing the [sport/activity].
[Name of defendant] is not responsible for an injury resulting from
conduct that was merely accidental, careless, or negligent.
New September 2003; Revised April 2004, October 2008, April 2009, December
2011, December 2013; Revised and Renumbered From CACI No. 408 May 2017;
Revised May 2018
Directions for Use
This instruction sets forth a plaintiff’s response to the affirmative defense of primary
assumption of risk asserted by a defendant who was a coparticipant in the sport or
other recreational activity. For an instruction applicable to coaches, instructors, or
trainers, see CACI No. 471, Primary Assumption of Risk—Exception to
Nonliability—Instructors, Trainers, or Coaches. For an instruction applicable to
facilities owners and operators and to event sponsors, see CACI No. 472, Primary
Assumption of Risk—Exception to Nonliability—Facilities Owners and Operators
and Event Sponsors. For an instruction applicable to occupations with inherent risk,
see CACI No. 473, Primary Assumption of Risk—Exception to
Nonliability—Occupation Involving Inherent Risk.
Primary assumption of risk generally absolves the defendant of a duty of care
toward the plaintiff with regard to injury incurred in the course of a sporting or
other recreational activity covered by the doctrine. (See Knight v. Jewett (1992) 3
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Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834 P.2d 696].) Element 1 sets forth the
exceptions in which there is a duty.
While duty is generally a question of law, some courts have held that whether the
defendant has increased the risk beyond those inherent in the sport or activity is a
question of fact for the jury. (See Luna v. Vela (2008) 169 Cal.App.4th 102,
112–113 [86 Cal.Rptr.3d 588] and cases cited therein, including cases contra.) There
may also be disputed facts that must be resolved by a jury before it can be
determined if the doctrine applies. (See Shin v. Ahn (2007) 42 Cal.4th 482, 486 [64
Cal.Rptr.3d 803, 165 P.3d 581].)
Sources and Authority
• “Primary assumption of risk arises where a plaintiff voluntarily participates in an
activity or sport involving certain inherent risks; primary assumption of risk . . .
bar[s] recovery because no duty of care is owed as to such risks.” (Connelly v.
Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11 [45 Cal.Rptr.2d 855],
internal citations omitted.)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply to
skateboarding”]; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 540 [220
Cal.Rptr.3d 556] [horseback riding is an inherently dangerous sport]; Foltz v.
Johnson (2017) 16 Cal.App.5th 647, 656–657 [224 Cal.Rptr.3d 506] [off-road
dirt bike riding].)
• “A coparticipant in an active sport ordinarily bears no liability for an injury
resulting from conduct in the course of the sport that is merely careless or
negligent.” (Ford v. Gouin (1992) 3 Cal.4th 339, 342 [11 Cal.Rptr.2d 30, 834
P.2d 724].)
• “[W]e conclude that a participant in an active sport breaches a legal duty of care
to other participants—i.e., engages in conduct that properly may subject him or
her to financial liability—only if the participant intentionally injures another
player or engages in conduct that is so reckless as to be totally outside the range
of the ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at p.
320.)
• “The Knight rule, however, ‘does not grant unbridled legal immunity to all
defendants participating in sporting activity. The Supreme Court has stated that
“it is well established that defendants generally do have a duty to use due care
not to increase the risks to a participant over and above those inherent in the
sport.” Thus, even though “defendants generally have no legal duty to eliminate
(or protect a plaintiff against) risks inherent in the sport itself,” they may not
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increase the likelihood of injury above that which is inherent.’” (Distefano v.
Forester (2001) 85 Cal.App.4th 1249, 1261 [102 Cal.Rptr.2d 813], internal
citations omitted.)
• “In Freeman v. Hale, the Court of Appeal advanced a test . . . for determining
what risks are inherent in a sport: ‘[C]onduct is totally outside the range of
ordinary activity involved in the sport (and thus any risks resulting from that
conduct are not inherent to the sport) if the prohibition of that conduct would
neither deter vigorous participation in the sport nor otherwise fundamentally alter
the nature of the sport.’” (Distefano, supra, 85 Cal.App.4th at p. 1261.)
• “[G]olfers have a limited duty of care to other players, breached only if they
intentionally injure them or engage in conduct that is ‘so reckless as to be totally
outside the range of the ordinary activity involved in the sport.’” (Shin, supra,
42 Cal.4th at p. 497.)
• “The [horseback] rider generally assumes the risk of injury inherent in the sport.
Another person does not owe a duty to protect the rider from injury by
discouraging the rider’s vigorous participation in the sport or by requiring that
an integral part of horseback riding be abandoned. And the person has no duty to
protect the rider from the careless conduct of others participating in the sport.
The person owes the horseback rider only two duties: (1) to not ‘intentionally’
injure the rider; and (2) to not ‘increase the risk of harm beyond what is inherent
in [horseback riding]’ by ‘engag[ing] in conduct that is so reckless as to be
totally outside the range of the ordinary activity involved in the sport’”
(Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545–1546 [98 Cal.Rptr.3d
779].)
• “[T]he general test is ‘that a participant in an active sport breaches a legal duty
of care to other participants—i.e., engages in conduct that properly may subject
him or her to financial liability—only if the participant intentionally injures
another player or engages in conduct that is so reckless as to be totally outside
the range of the ordinary activity involved in the sport.’ Although a defendant
has no duty of care to a plaintiff with regard to inherent risks, a defendant still
has a duty not to increase those risks.” (Swigart, supra, 13 Cal.App.5th at p.
538, internal citations omitted.)
• “The question of which risks are inherent in a recreational activity is fact
intensive but, on a sufficient record, may be resolved on summary judgment.
Judges deciding inherent risk questions under this doctrine ‘may consider not
only their own or common experience with the recreational activity involved but
may also consult case law, other published materials, and documentary evidence
introduced by the parties on a motion for summary judgment.’” (Foltz, supra, 16
Cal.App.5th at p. 656, internal citations omitted.)
• “[W]hether defendant breached the limited duty of care he owed other golfers by
engaging in conduct that was ‘so reckless as to be totally outside the range of
the ordinary activity involved in [golf]’ depends on resolution of disputed
material facts. Thus, defendant’s summary judgment motion was properly
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denied.” (Shin, supra, 42 Cal.4th at p. 486, internal citation omitted.)
• “Although we recognize the Court of Appeal decisions specifically addressing
the point are in conflict, we believe resolving this issue is not a matter of further
defining [defendant]’s duty, which would be a question of law for the court.
Rather, it requires application of the governing standard of care (the duty not to
increase the risks inherent in the sport) to the facts of this particular case—the
traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski Co., supra,
118 Cal.App.4th at pp. 591–592 [whether defendant’s design of snowboard jump
increased inherent risks of snowboarding is question for jury]; Solis v. Kirkwood
Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial jumps built by
resort increased inherent risk of falling while skiing is question for jury]; Lowe
v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123 [65
Cal.Rptr.2d 105] [whether distraction caused by activities of minor league
baseball team’s mascot increased inherent risk of spectator being hit by a foul
ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra, 138
Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84 Cal.App.4th
975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court to determine
whether defendant’s conduct increased the risk inherent in participating in a
particular sport, but that trial court may receive expert testimony on the
customary practices in the sport to make that determination].) [¶] Our conclusion
it is for the trier of fact to determine whether [defendant] breached his limited
duty not to increase the risks inherent in the sport of volleyball finds solid
support in the Supreme Court’s most recent sports injury, primary assumption of
the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a case that postdates the
appellate court decisions suggesting the issue is one for the court to resolve.”
(Luna v. Vela (2008) 169 Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588].)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question of
law and based on the general characteristics of the sport activity and the parties’
relationship to it.” (Griffın v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th
490, 501 [194 Cal.Rptr.3d 830].)
• “Primary assumption of risk has often been applied in the context of active
sports, but the doctrine also applies to other recreational activities that
‘ “involv[e] an inherent risk of injury to voluntary participants . . . where the
risk cannot be eliminated without altering the fundamental nature of the
activity.” ’ ‘Where the doctrine applies to a recreational activity, operators,
instructors and participants in the activity owe other participants only the duty
not to act so as to increase the risk of injury over that inherent in the activity.’
Coparticipants must not intentionally or recklessly injure other participants, but
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the doctrine is a complete defense to a claim of negligence. However, recovery
for injuries caused by risks not inherent in the activity is not barred by the
doctrine.” (Wolf v. Weber (2020) 52 Cal.App.5th 406, 410–411 [266 Cal.Rptr.3d
104], original italics, internal citations omitted.)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a defendant’s
duty of care in the primary assumption of risk context “is a legal question which
depends on the nature of the sport or activity . . . and on the parties’ general
relationship to the activity, and is an issue to be decided by the court, rather than
the jury.” ’ This statement of the rule is correct where there is no dispute about
the inherent risks, and such cases may be resolved on summary judgment. [¶]
However this statement is overly broad. Although the risks inherent in many
activities are not subject to reasonable dispute (e.g., being hit with a baseball
during a game), the risks inherent in some activities are not commonly known.
In such cases, expert testimony may be required ‘ “for purposes of weighing
whether the inherent risks of the activity were increased by the defendant’s
conduct.” ’ Thus, it is not entirely accurate to say inherent risks of an activity
always present purely legal questions, because sometimes the nature of an
activity and its risks must be gleaned from the evidence.” (Jimenez, supra, 247
Cal.App.4th at p. 608, original italics, internal citations omitted.)
• “[Plaintiff] has repeatedly argued that primary assumption of the risk does not
apply because she did not impliedly consent to having a weight dropped on her
head. However, a plaintiff’s expectation does not define the limits of primary
assumption of the risk. ‘Primary assumption of risk focuses on the legal question
of duty. It does not depend upon a plaintiff’s implied consent to injury, nor is the
plaintiff’s subjective awareness or expectation relevant. . . . .’ ” (Cann v.
Stefanec (2013) 217 Cal.App.4th 462, 471 [158 Cal.Rptr.3d 474].)
• “Primary assumption of the risk does not depend on whether the plaintiff
subjectively appreciated the risks involved in the activity; instead, the focus is an
objective one that takes into consideration the risks that are ‘ “inherent” ’ in the
activity at issue.” (Swigart, supra, 13 Cal.App.5th at p. 538.)
• “A jury could find that, by using a snowboard without the retention strap, in
violation of the rules of the ski resort and a county ordinance, defendant
unnecessarily increased the danger that his snowboard might escape his control
and injure other participants such as plaintiff. The absence of a retention strap
could therefore constitute conduct not inherent to the sport which increased the
risk of injury.” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 829 [89
Cal.Rptr.2d 519].)
• “The existence and scope of a defendant’s duty depends on the role that
defendant played in the activity. Defendants were merely the hosts of a social
gathering at their cattle ranch, where [plaintiff] asked to ride one of their horses;
they were not instructors and did not assume any of the responsibilities of an
instructor.” (Levinson, supra, 176 Cal.App.4th at pp. 1550–1551, internal citation
omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
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as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Whether a duty exists ‘does not turn on the reasonableness or unreasonableness
of the plaintiff’s conduct, but rather on [(1)] the nature of the activity or sport in
which the defendant is engaged and [(2)] the relationship of the defendant and
the plaintiff to that activity or sport.’ It is the ‘nature of the activity’ and the
parties’ relationship to it that determines whether the doctrine applies—not its
characterization as a sporting event.” (McGarry v. Sax (2008) 158 Cal.App.4th
983, 999–1000 [70 Cal.Rptr.3d 519], internal citations omitted.)
• “[T]o the extent that ‘ “ ‘a plaintiff unreasonably undertakes to encounter a
specific known risk imposed by a defendant’s negligence,’ ” ’ he or she is subject
to the defense of comparative negligence but not to an absolute defense. This
type of comparative negligence has been referred to as ‘ “secondary assumption
of risk.” ’ Assumption of risk that is based upon the absence of a defendant’s
duty of care is called ‘ “primary assumption of risk.” ’ ‘First, in “primary
assumption of risk” cases—where the defendant owes no duty to protect the
plaintiff from a particular risk of harm—a plaintiff who has suffered such harm
is not entitled to recover from the defendant, whether the plaintiff’s conduct in
undertaking the activity was reasonable or unreasonable. Second, in “secondary
assumption of risk” cases—involving instances in which the defendant has
breached the duty of care owed to the plaintiff—the defendant is not entitled to
be entirely relieved of liability for an injury proximately caused by such breach,
simply because the plaintiff’s conduct in encountering the risk of such an injury
was reasonable rather than unreasonable.’ ” (Kindrich v. Long Beach Yacht Club
(2008) 167 Cal.App.4th 1252, 1259 [84 Cal.Rptr.3d 824], original italics, internal
citations omitted.)
• “Even were we to conclude that [plaintiff]’s decision to jump off the boat was a
voluntary one, and that therefore he assumed a risk inherent in doing so, this is
not enough to provide a complete defense. Because voluntary assumption of risk
as a complete defense in a negligence action was abandoned in Li v. Yellow Cab
Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226], only the
absence of duty owed a plaintiff under the doctrine of primary assumption of
risk would provide such a defense. But that doctrine does not come into play
except when a plaintiff and a defendant are engaged in certain types of activities,
such as an ‘active sport.’ That was not the case here; plaintiff was merely the
passenger on a boat. Under Li, he may have been contributorily negligent but
this would only go to reduce the amount of damages to which he is entitled.”
(Kindrich, supra, 167 Cal.App.4th at p. 1258.)
• “Though most cases in which the doctrine of primary assumption of risk exists
involve recreational sports, the doctrine has been applied to dangerous activities
in other contexts (see, e.g., Saville v. Sierra College (2005) 133 Cal.App.4th 857
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[36 Cal.Rptr.3d 515] [training in peace officer takedown maneuvers]; Hamilton v.
Martinelli & Associates (2003) 110 Cal.App.4th 1012 [2 Cal.Rptr.3d 168]
[training on physical restraint methods]; Aaris v. Las Virgenes Unified School
Dist. (1998) 64 Cal.App.4th 1112 [75 Cal.Rptr.2d 801] [practice of cheerleader
routines]; Bushnell [v. Japanese-American Religious & Cultural Center], 43
Cal.App.4th 525 [50 Cal.Rptr.2d 671] [practice of moves in judo class]; and
Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [53 Cal.Rptr.2d 713]
[injury to nurse’s aide by nursing home patient]).” (McGarry, supra, 158
Cal.App.4th at pp. 999–1000, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1496–1508
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03, Ch. 15, General Premises Liability, § 15.21
(Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.172
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 (Matthew
Bender)
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471. Primary Assumption of Risk—Exception to
Nonliability—Instructors, Trainers, or Coaches
[Name of plaintiff] claims [he/she/nonbinary pronoun] was harmed by
[name of defendant]’s [coaching/training/instruction]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [name of plaintiff]’s [coach/trainer/
instructor];
2. [That [name of defendant] intended to cause [name of plaintiff]
injury or acted recklessly in that [his/her/nonbinary pronoun]
conduct was entirely outside the range of ordinary activity
involved in teaching or coaching [sport or other recreational
activity, e.g., horseback riding] in which [name of plaintiff] was
participating;]
2. [or]
2. [That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g., horseback
riding];]
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised April 2004, June 2012, December 2013; Revised and
Renumbered From CACI No. 409 May 2017; Revised May 2020
Directions for Use
This instruction sets forth a plaintiff’s response to a defendant’s assertion of the
affirmative defense of primary assumption of risk. Primary assumption of risk
generally absolves the defendant of a duty of care toward the plaintiff with regard to
injury incurred in the course of a sporting or other recreational activity covered by
the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834
P.2d 696].)
There are exceptions, however, in which there is a duty of care. Use the first option
for element 2 if it is alleged that the coach or trainer intended to cause the student’s
injury or engaged in conduct totally outside the range of the ordinary activity
involved in teaching or coaching the sport or activity. Use the second option if it is
alleged that the coach’s or trainer’s failure to use ordinary care increased the risk of
injury to the plaintiff, for example, by encouraging or allowing the plaintiff to
participate in the sport or activity when the plaintiff was physically unfit to
participate or by allowing the plaintiff to use unsafe equipment or instruments. (See
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Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845 [120 Cal.Rptr.3d 90].) If the
second option is selected, also give CACI No. 400, Negligence—Essential Factual
Elements.
While duty is a question of law, courts have held that whether the defendant has
unreasonably increased the risk is a question of fact for the jury. (See Luna v. Vela
(2008) 169 Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited
therein].) There may also be disputed facts that must be resolved by a jury before it
can be determined if the doctrine applies. (See Shin v. Ahn (2007) 42 Cal.4th 482,
486 [64 Cal.Rptr.3d 803, 165 P.3d 581].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 470, Primary Assumption of Risk—Exception to
Nonliability—Coparticipant in Sport or Other Recreational Activity. For an
instruction on primary assumption of risk applicable to facilities owners and
operators and to event sponsors, see CACI No. 472, Primary Assumption of
Risk—Exception to Nonliability—Facilities Owners and Operators and Event
Sponsors. For an instruction applicable to occupations with inherent risk, see CACI
No. 473, Primary Assumption of Risk—Exception to Nonliability—Occupation with
Inherent Risk.
Sources and Authority
• “In order to support a cause of action in cases in which it is alleged that a sports
instructor has required a student to perform beyond the student’s capacity or
without providing adequate instruction, it must be alleged and proved that the
instructor acted with intent to cause a student’s injury or that the instructor acted
recklessly in the sense that the instructor’s conduct was ‘totally outside the range
of the ordinary activity’ involved in teaching or coaching the sport.” (Kahn v.
East Side Union High School District (2003) 31 Cal.4th 990, 1011 [4
Cal.Rptr.3d 103, 75 P.3d 30], internal citation omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply to
skateboarding”].)
• “Here, we do not deal with the relationship between coparticipants in a sport, or
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with the duty that an operator may or may not owe to a spectator. Instead, we
deal with the duty of a coach or trainer to a student who has entrusted himself to
the former’s tutelage. There are precedents reaching back for most of this
century that find an absence of duty to coparticipants and, often, to spectators,
but the law is otherwise as applied to coaches and instructors. For them, the
general rule is that coaches and instructors owe a duty of due care to persons in
their charge. The coach or instructor is not, of course, an insurer, and a student
may be held to notice that which is obvious and to ask appropriate questions.
But all of the authorities that comment on the issue have recognized the
existence of a duty of care.” (Tan v. Goddard (1993) 13 Cal.App.4th 1528,
1535–1536 [17 Cal.Rptr.2d 89], internal citations omitted.)
• “[D]ecisions have clarified that the risks associated with learning a sport may
themselves be inherent risks of the sport, and that an instructor or coach
generally does not increase the risk of harm inherent in learning the sport simply
by urging the student to strive to excel or to reach a new level of competence.”
(Kahn, supra, 31 Cal.4th at p. 1006.)
• “To the extent a duty is alleged against a coach for ‘pushing’ and/or
‘challenging’ a student to improve and advance, the plaintiff must show that the
coach intended to cause the student’s injury or engaged in reckless conduct—that
is, conduct totally outside the range of the ordinary activity involved in teaching
or coaching the sport. Furthermore, a coach has a duty of ordinary care not to
increase the risk of injury to a student by encouraging or allowing the student to
participate in the sport when he or she is physically unfit to participate or by
allowing the student to use unsafe equipment or instruments.” (Eriksson, supra,
191 Cal.App.4th at p. 845, internal citation omitted.)
• “That an instructor might ask a student to do more than the student can manage
is an inherent risk of the activity. Absent evidence of recklessness, or other risk-
increasing conduct, liability should not be imposed simply because an instructor
asked the student to take action beyond what, with hindsight, is found to have
been the student’s abilities. To hold otherwise would discourage instructors from
requiring students to stretch, and thus to learn, and would have a generally
deleterious effect on the sport as a whole.” (Honeycutt v. Meridian Sports Club,
LLC (2014) 231 Cal.App.4th 251, 258 [179 Cal.Rptr.3d 473].)
• Coaches and sports instructors “owe students a duty ‘not to increase the risks
inherent in the learning process undertaken by the student.’ But this does not
require them to ‘fundamentally alter the nature of the sport and, in some
instances, effectively preclude participation altogether . . . .’ Instead, ‘[b]y
choosing to participate in a sport that poses the obvious possibility of injury, the
student athlete must learn to accept an adverse result of the risks inherent in the
sport.’ ” (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436–1437
[89 Cal.Rptr.2d 920], internal citations omitted.)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question of
law and based on the general characteristics of the sport activity and the parties’
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relationship to it.” (Griffın v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th
490, 501 [194 Cal.Rptr.3d 830].)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a defendant’s
duty of care in the primary assumption of risk context “is a legal question which
depends on the nature of the sport or activity . . . and on the parties’ general
relationship to the activity, and is an issue to be decided by the court, rather than
the jury.” ’ This statement of the rule is correct where there is no dispute about
the inherent risks, and such cases may be resolved on summary judgment. [¶]
However this statement is overly broad. Although the risks inherent in many
activities are not subject to reasonable dispute (e.g., being hit with a baseball
during a game), the risks inherent in some activities are not commonly known.
In such cases, expert testimony may be required ‘ “for purposes of weighing
whether the inherent risks of the activity were increased by the defendant’s
conduct.” ’ . . . Thus, it is not entirely accurate to say inherent risks of an
activity always present purely legal questions, because sometimes the nature of
an activity and its risks must be gleaned from the evidence.” (Jimenez, supra,
247 Cal.App.4th at p. 608, original italics, internal citations omitted.)
• “[Plaintiff] has repeatedly argued that primary assumption of the risk does not
apply because she did not impliedly consent to having a weight dropped on her
head. However, a plaintiff’s expectation does not define the limits of primary
assumption of the risk. ‘Primary assumption of risk focuses on the legal question
of duty. It does not depend upon a plaintiff’s implied consent to injury, nor is the
plaintiff’s subjective awareness or expectation relevant. . . . .’ ” (Cann v.
Stefanec (2013) 217 Cal.App.4th 462, 471 [158 Cal.Rptr.3d 474].)
• “Although we recognize the Court of Appeal decisions specifically addressing
the point are in conflict, we believe resolving this issue is not a matter of further
defining [defendant]’s duty, which would be a question of law for the court.
Rather, it requires application of the governing standard of care (the duty not to
increase the risks inherent in the sport) to the facts of this particular case—the
traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski Co., supra,
118 Cal.App.4th at pp. 591–592 [whether defendant’s design of snowboard jump
increased inherent risks of snowboarding is question for jury]; Solis v. Kirkwood
Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial jumps built by
resort increased inherent risk of falling while skiing is question for jury]; Lowe
v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123 [65
Cal.Rptr.2d 105] [whether distraction caused by activities of minor league
baseball team’s mascot increased inherent risk of spectator being hit by a foul
ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra, 138
Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
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inherent in the sport’]; see also Huffman v. City of Poway (2000) 84 Cal.App.4th
975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court to determine
whether defendant’s conduct increased the risk inherent in participating in a
particular sport, but that trial court may receive expert testimony on the
customary practices in the sport to make that determination].) [¶] Our conclusion
it is for the trier of fact to determine whether [defendant] breached his limited
duty not to increase the risks inherent in the sport of volleyball finds solid
support in the Supreme Court’s most recent sports injury, primary assumption of
the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a case that postdates the
appellate court decisions suggesting the issue is one for the court to resolve.”
(Luna, supra, 169 Cal.App.4th at pp. 112–113.)
• “The existence of a duty of care is a separate issue from the question whether
(on the basis of forseeability among other factors) a particular defendant
breached that duty of care, which is an essentially factual matter.” (Kockelman v.
Segal (1998) 61 Cal.App.4th 491, 498 [71 Cal.Rptr.2d 552].)
• “[A duty not to increase the risk] arises only if there is an ‘ “organized
relationship” ’ between the defendants and the participant in relation to the
sporting activity, such as exists between . . . a coach or instructor and his or her
students. [I]mposing such a duty in the context of these types of relationships is
justified because the defendants are ‘responsible for, or in control of, the
conditions under which the [participant] engaged in the sport.’ ” (Bertsch, supra,
247 Cal.App.4th at pp. 1208−1209, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1496, 1497,
1501–1508
Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating
Factors In Reduction Of Damages, ¶¶ 3:1067–3:1078 (The Rutter Group)
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.31 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 et seq.
(Matthew Bender)
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472. Primary Assumption of Risk—Exception to
Nonliability—Facilities Owners and Operators and Event
Sponsors
[Name of plaintiff] claims [he/she/nonbinary pronoun] was harmed while
[participating in/watching] [sport or other recreational activity e.g.,
snowboarding] at [name of defendant]’s [specify facility or event where
plaintiff was injured, e.g., ski resort]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] was the [owner/operator/sponsor/other]
of [e.g., a ski resort];
2. [That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g.,
snowboarding];]
2. [or]
2. [That [name of defendant] unreasonably failed to minimize a risk
that is not inherent in [e.g., snowboarding] and unreasonably
exposed [name of plaintiff] to an increased risk of harm;]
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2013; Revised and Renumbered From CACI No. 410 May 2017;
Revised May 2019
Directions for Use
This instruction sets forth a plaintiff’s response to a defendant’s assertion of the
affirmative defense of primary assumption of risk. Primary assumption of risk
generally absolves the defendant of a duty of care toward the plaintiff with regard to
injury incurred in the course of a sporting or other recreational activity covered by
the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834
P.2d 696].) There is, however, a duty applicable to facilities owners and operators
and to event sponsors not to unreasonably increase the risks of injury to participants
and spectators beyond those inherent in the activity. (See Nalwa v. Cedar Fair, L.P.
(2012) 55 Cal.4th 1148, 1162 [150 Cal.Rptr.3d 551, 290 P.3d 1158] [participants];
Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123 [65
Cal.Rptr.2d 105] [spectators].)
There is also a duty to minimize risks that are extrinsic to the nature of the sport;
that is, those that can be addressed without altering the essential nature of the
activity. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 38 [236
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Cal.Rptr.3d 682].) Choose either or both options for element 2 depending on which
duty is alleged to have been breached.
While duty is a question of law, courts have held that whether the defendant has
increased the risk is a question of fact for the jury. (See Luna v. Vela (2008) 169
Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited therein]; cf.
Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344,
354 [235 Cal.Rptr.3d 716] [court to decide whether an activity is an active sport, the
inherent risks of that sport, and whether the defendant has increased the risks of the
activity beyond the risks inherent in the sport].) There may also be disputed facts
that must be resolved by a jury before it can be determined if the doctrine applies.
(See Shin v. Ahn (2007) 42 Cal.4th 482, 486 [64 Cal.Rptr.3d 803, 165 P.3d 581].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 470, Primary Assumption of Risk—Exception to
Nonliability—Coparticipant in Sport or Other Recreational Activity. For an
instruction on primary assumption of risk applicable to instructors, trainers, and
coaches, see CACI No. 471, Primary Assumption of Risk—Exception to
Nonliability—Instructors, Trainers, or Coaches. For an instruction applicable to
occupations with inherent risk, see CACI No. 473, Primary Assumption of
Risk—Exception to Nonliability—Occupation With Inherent Risk.
Sources and Authority
• “[U]nder the primary assumption of risk doctrine, operators, sponsors and
instructors in recreational activities posing inherent risks of injury have no duty
to eliminate those risks, but do owe participants the duty not to unreasonably
increase the risks of injury beyond those inherent in the activity.” (Nalwa, supra,
55 Cal.4th at p. 1162.)
• “The doctrine applies to recreational activities ‘ “involving an inherent risk of
injury to voluntary participants . . . where the risk cannot be eliminated without
altering the fundamental nature of the activity.” ’ ” (Griffın v. The Haunted Hotel,
Inc. (2015) 242 Cal.App.4th 490, 500 [194 Cal.Rptr.3d 830].)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply to
skateboarding”], internal citations omitted.)
• “What the primary assumption of risk doctrine does not do, however, is absolve
operators of any obligation to protect the safety of their customers. As a general
rule, where an operator can take a measure that would increase safety and
minimize the risks of the activity without also altering the nature of the activity,
the operator is required to do so. As the court explained in Knight, ‘in the sports
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setting, as elsewhere, the nature of the applicable duty or standard of care
frequently varies with the role of the defendant whose conduct is at issue in a
given case.’ When the defendant is the operator of an inherently risky sport or
activity (as opposed to a coparticipant), there are ‘steps the sponsoring business
entity reasonably should be obligated to take in order to minimize the risks
without altering the nature of the sport [or activity].’ ” (Grotheer v. Escape
Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1300 [222 Cal.Rptr.3d 633],
original italics, internal citations omitted.)
• “Thus, Nalwa actually reaffirms Knight’s conclusions regarding the duties owed
to participants by operators/organizers of recreational activities. In short, such
operators and organizers have two distinct duties: the limited duty not to increase
the inherent risks of an activity under the primary assumption of the risk
doctrine and the ordinary duty of due care with respect to the extrinsic risks of
the activity, which should reasonably be minimized to the extent possible
without altering the nature of the activity.” (Hass, supra, 26 Cal.App.5th at p.
38, original italics.)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question of
law and based on the general characteristics of the sport activity and the parties’
relationship to it.” (Griffın, supra, 242 Cal.App.4th at p. 501.)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a defendant’s
duty of care in the primary assumption of risk context “is a legal question which
depends on the nature of the sport or activity . . . and on the parties’ general
relationship to the activity, and is an issue to be decided by the court, rather than
the jury.” ’ This statement of the rule is correct where there is no dispute about
the inherent risks, and such cases may be resolved on summary judgment. [¶]
However this statement is overly broad. Although the risks inherent in many
activities are not subject to reasonable dispute (e.g., being hit with a baseball
during a game), the risks inherent in some activities are not commonly known.
In such cases, expert testimony may be required ‘ “for purposes of weighing
whether the inherent risks of the activity were increased by the defendant’s
conduct.” ’ . . . Thus, it is not entirely accurate to say inherent risks of an
activity always present purely legal questions, because sometimes the nature of
an activity and its risks must be gleaned from the evidence.” (Jimenez, supra,
247 Cal.App.4th at p. 608, original italics, internal citations omitted.)
• “Although we recognize the Court of Appeal decisions specifically addressing
the point are in conflict, we believe resolving this issue is not a matter of further
defining [defendant]’s duty, which would be a question of law for the court.
Rather, it requires application of the governing standard of care (the duty not to
increase the risks inherent in the sport) to the facts of this particular case—the
traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski Co., supra,
118 Cal.App.4th at pp. 591–592 [whether defendant’s design of snowboard jump
increased inherent risks of snowboarding is question for jury]; Solis v. Kirkwood
Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial jumps built by
resort increased inherent risk of falling while skiing is question for jury]; Lowe
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v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123 [65
Cal.Rptr.2d 105] [whether distraction caused by activities of minor league
baseball team’s mascot increased inherent risk of spectator being hit by a foul
ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra, 138
Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84 Cal.App.4th
975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court to determine
whether defendant’s conduct increased the risk inherent in participating in a
particular sport, but that trial court may receive expert testimony on the
customary practices in the sport to make that determination].) [¶] Our conclusion
it is for the trier of fact to determine whether [defendant] breached his limited
duty not to increase the risks inherent in the sport of volleyball finds solid
support in the Supreme Court’s most recent sports injury, primary assumption of
the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a case that postdates the
appellate court decisions suggesting the issue is one for the court to resolve.”
(Luna, supra, 169 Cal.App.4th at pp. 112–113.)
• “Although defendants generally have no legal duty to eliminate (or protect a
plaintiff against) risks inherent in the sport itself, it is well established that
defendants generally do have a duty to use due care not to increase the risks to a
participant over and above those inherent in the sport. Thus, although a ski resort
has no duty to remove moguls from a ski run, it clearly does have a duty to use
due care to maintain its towropes in a safe, working condition so as not to
expose skiers to an increased risk of harm. The cases establish that the latter
type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in
the sport) that is assumed by a participant.” (Knight, supra, 3 Cal.4th at pp.
315–316.)
• “Under Knight, defendants had a duty not to increase the inherent risks to which
spectators at professional baseball games are regularly exposed and which they
assume. As a result, a triable issue of fact remained, namely whether the
[defendants]’ mascot cavorting in the stands and distracting plaintiff’s attention,
while the game was in progress, constituted a breach of that duty, i.e.,
constituted negligence in the form of increasing the inherent risk to plaintiff of
being struck by a foul ball.” (Lowe, supra, 56 Cal.App.4th at p. 114, original
italics.)
• “[T]hose responsible for maintaining athletic facilities have a . . . duty not to
increase the inherent risks, albeit in the context of businesses selling recreational
opportunities.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148,
162 [41 Cal.Rptr.3d 299, 131 P.3d 383], internal citation omitted.)
• “Knight, consistently with established case law, simply requires courts in each
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instance to examine the question of duty in light of the nature of the defendant’s
activities and the relationship of the parties to that activity.” (Parsons v. Crown
Disposal Co. (1997) 15 Cal.4th 456, 482 [63 Cal.Rptr.2d 291, 936 P.2d 70].)
• “Because primary assumption of risk focuses on the question of duty, it is not
dependent on either the plaintiff’s implied consent to, or subjective appreciation
of, the potential risk.” (Griffın, supra, 242 Cal.App.4th at p. 502, original
italics.)
• “Defendants’ obligation not to increase the risks inherent in the activity included
a duty to provide safe equipment for the trip, such as a safe and sound craft.”
(Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 255 [38
Cal.Rptr.2d 65].)
• “[A duty not to increase the risk] arises only if there is an ‘ “organized
relationship” ’ between the defendants and the participant in relation to the
sporting activity, such as exists between a recreational business operator and its
patrons . . . . [I]mposing such a duty in the context of these types of
relationships is justified because the defendants are ‘responsible for, or in control
of, the conditions under which the [participant] engaged in the sport.’ ”
However, ‘[t]his policy justification does not extend to a defendant wholly
uninvolved with and unconnected to the sport,’ . . . who neither ‘held out their
driveway as an appropriate place to skateboard or in any other way represented
that the driveway was a safe place for skateboarding.’ ” (Bertsch, supra, 247
Cal.App.4th at pp. 1208−1209, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1496–1497,
1501–1508
Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating
Factors In Reduction Of Damages, ¶ 3:1120 (The Rutter Group)
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.31 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 et seq.
(Matthew Bender)
394
Copyright Judicial Council of California
473. Primary Assumption of Risk—Exception to
Nonliability—Occupation Involving Inherent Risk
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of defendant] while [name of plaintiff] was performing
[his/her/nonbinary pronoun] job duties as [specify, e.g., a firefighter]. [Name
of defendant] is not liable if [name of plaintiff]’s injury arose from a risk
inherent in the occupation of [e.g., firefighter]. However, [name of plaintiff]
may recover if [he/she/nonbinary pronoun] proves all of the following:
[1. That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g.,
firefighting];]
[1. [or]
[1. That [name of defendant] [misrepresented to/failed to warn] [name
of plaintiff] [of] a dangerous condition that [name of plaintiff] could
not have known about as part of [his/her/nonbinary pronoun] job
duties;]
[1. [or]
[1. That the cause of [name of plaintiff]’s injury was not related to the
inherent risk;]
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New May 2017; Revised May 2020
Directions for Use
Give this instruction if the plaintiff asserts an exception to assumption of risk of the
injury that the plaintiff suffered because the risk is an inherent part of the plaintiff’s
duties. This has traditionally been referred to as the “firefighter’s rule.” (See
Gregory v. Cott (2014) 59 Cal. 4th 996, 1001 [176 Cal. Rptr. 3d 1, 331 P.3d 179].)
There are, however, exceptions to nonliability under the firefighter’s rule. The
plaintiff may recover if (1) the defendant’s actions have unreasonably increased the
risks of injury beyond those inherent in the occupation; (2) the defendant
misrepresented or failed to disclose a hazardous condition that the plaintiff had no
reason to know about; or (3) the cause of the injury was not related to the inherent
risk. This instruction asks the jury to determine whether an exception applies.
(Gregory, supra, 59 Cal.4th at p. 1010.) These exceptions are presented in the
options to element 1.
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While duty is a question of law, courts have held that whether the defendant has
increased the risk is a question of fact for the jury. (See Luna v. Vela (2008) 169
Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited therein].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 470, Primary Assumption of Risk—Exception to
Nonliability—Coparticipant in Sport or Other Recreational Activity. For an
instruction applicable to coaches, instructors, or trainers, see CACI No. 471,
Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or
Coaches. For an instruction applicable to facilities owners and operators and to
event sponsors, see CACI No. 472, Primary Assumption of Risk—Exception to
Nonliability—Facilities Owners and Operators and Event Sponsors.
Sources and Authority
• “Primary assumption of risk cases often involve recreational activity, but the
doctrine also governs claims arising from inherent occupational hazards. The bar
against recovery in that context first developed as the ‘firefighter’s rule,’ which
precludes firefighters and police officers from suing members of the public for
the conduct that makes their employment necessary. After Knight, we have
viewed the firefighter’s rule ‘not . . . as a separate concept,’ but as a variant of
primary assumption of risk, ‘an illustration of when it is appropriate to find that
the defendant owes no duty of care.’ Whether a duty of care is owed in a
particular context depends on considerations of public policy, viewed in light of
the nature of the activity and the relationship of the parties to the activity.”
(Gregory, supra, 59 Cal. 4th at pp. 1001–1002, internal citations omitted.)
• “The firefighter’s rule, upon which the [defendant] relies, and the analogous
veterinarian’s rule, are examples of the primary assumption of risk doctrine
applied in the employment context.” (Moore v. William Jessup University (2015)
243 Cal.App.4th 427, 435 [197 Cal.Rptr.3d 51].)
• “Our holding does not preclude liability in situations where caregivers are not
warned of a known risk, where defendants otherwise increase the level of risk
beyond that inherent in providing care, or where the cause of injury is unrelated
to the symptoms of [Alzheimers] disease.” (Gregory, supra, 59 Cal.4th at p.
1000.)
• “[T]he principle of assumption of risk, which forms the theoretical basis for the
fireman’s rule, is not applicable where a fireman’s injuries are proximately
caused by his being misled as to the nature of the danger to be confronted.”
(Lipson v. Superior Court (1982) 31 Cal.3d 362, 371 [182 Cal. Rptr. 629, 644
P.2d 822].)
• “The firefighter’s rule, however, is hedged about with exceptions. The firefighter
does not assume every risk of his or her occupation. The rule does not apply to
conduct other than that which necessitated the summoning of the firefighter or
police officer, and it does not apply to independent acts of misconduct that are
committed after the firefighter or police officer has arrived on the scene.”
(Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [34 Cal. Rptr.
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2d 630, 882 P.2d 347], internal citation omitted.)
• “We have noted that the duty to avoid injuring others ‘normally extends to those
engaged in hazardous work.’ ‘We have never held that the doctrine of
assumption of risk relieves all persons of a duty of care to workers engaged in a
hazardous occupation.’ However, the doctrine does apply in favor of those who
hire workers to handle a dangerous situation, in both the public and the private
sectors. Such a worker, ‘as a matter of fairness, should not be heard to complain
of the negligence that is the cause of his or her employment. [Citations.] In
effect, we have said it is unfair to charge the defendant with a duty of care to
prevent injury to the plaintiff arising from the very condition or hazard the
defendant has contracted with the plaintiff to remedy or confront.’ This rule
encourages the remediation of dangerous conditions, an important public policy.
Those who hire workers to manage a hazardous situation are sheltered from
liability for injuries that result from the risks that necessitated the employment.”
(Gregory, supra, 59 Cal.4th at p. 1002, internal citations omitted.)
• “[A] person whose conduct precipitates the intervention of a police officer owes
no duty of care to the officer ‘with respect to the original negligence that caused
the officer’s intervention.’ ” (Harry v. Ring the Alarm, LLC (2019) 34
Cal.App.5th 749, 759 [246 Cal.Rptr.3d 471].)
• “Because of the nature of the activity, caring for the mentally infirm, and the
relationship between the parties, patient and caregiver, mentally incompetent
patients should not owe a legal duty to protect caregivers from injuries suffered
in attending to them. Here, the very basis of the relationship between plaintiff
and [defendant] was to protect [defendant] from harming either herself or
others.” (Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1770 [53
Cal.Rptr.2d 713].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1515
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.23
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.173
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.412 (Matthew
Bender)
474–499. Reserved for Future Use
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Copyright Judicial Council of California
VF-400. Negligence—Single Defendant
We answer the questions submitted to us as follows:
1. Was [name of defendant] negligent?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
399
Copyright Judicial Council of California
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at
Issue—Fault of Others Not at Issue
We answer the questions submitted to us as follows:
1. Was [name of defendant] negligent?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s total damages? Do not reduce the
damages based on the fault, if any, of [name of plaintiff].
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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3. If [name of plaintiff] has proved any damages, then answer
question 4. If [name of plaintiff] has not proved any damages, then
stop here, answer no further questions, and have the presiding
juror sign and date this form.
4. Was [name of plaintiff] negligent?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff]’s negligence a substantial factor in causing
[his/her/nonbinary pronoun] harm?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What percentage of responsibility for [name of plaintiff]’s harm do
you assign to:
[Name of defendant]: %
[Name of plaintiff]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
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If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
402
Copyright Judicial Council of California
VF-402. Negligence—Fault of Plaintiff and Others at Issue
We answer the questions submitted to us as follows:
1. Was [name of first defendant] negligent?
1. Yes No
1. Was [name of second defendant] negligent?
1. Yes No
1. [Repeat as necessary for other defendants.]
1. If you answered yes for any defendant in question 1, then answer
question 2 for that defendant. If you answered no for any
defendant in question 1, insert the number zero next to that
defendant’s name in question 8. If you answered no for all
defendants in question 1, stop here, answer no further questions,
and have the presiding juror sign and date this form.
2. For each defendant that received a “yes” answer in question 1,
answer the following:
2. Was [name of first defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
2. Yes No
2. Was [name of second defendant]’s negligence a substantial factor
in causing harm to [name of plaintiff]?
2. Yes No
2. [Repeat as necessary for other defendants.]
2. If you answered yes for any defendant in question 2, then answer
question 3. If you answered no for any defendant in question 2,
insert the number zero next to that defendant’s name in question
8. If you did not answer yes for any defendant in question 2, stop
here, answer no further questions, and have the presiding juror
sign and date this form.
3. What are [name of plaintiff]’s total damages? Do not reduce the
damages based on the fault, if any, of [name of plaintiff] or others.
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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VF-402 NEGLIGENCE
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
3. If [name of plaintiff] has proved any damages, then answer
question 4. If [name of plaintiff] has not proved any damages, then
stop here, answer no further questions, and have the presiding
juror sign and date this form.
4. Was [name of plaintiff] negligent?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, insert the number zero next to [name of plaintiff]’s
name in question 8, skip question 5, and answer question 6.
5. Was [name of plaintiff]’s negligence a substantial factor in causing
[his/her/nonbinary pronoun] harm?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, insert the number zero next to [name of plaintiff]’s
name in question 8 and answer question 6.
6. Was [name/description of first nonparty] negligent?
6. Yes No
6. Was [name/description of second nonparty] negligent?
6. Yes No
6. [Repeat as necessary for other nonparties.]
6. If you answered yes for any person in question 6, then answer
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NEGLIGENCE VF-402
question 7 for that person. If you answered no for any person in
question 6, insert the number zero next to that person’s name in
question 8. If you answered no for all persons in question 6, skip
question 7 and answer question 8.
7. For each person who received a “yes” answer in question 6,
answer the following:
7. Was [name/description of first nonparty]’s negligence a substantial
factor in causing harm to [name of plaintiff]?
7. Yes No
7. Was [name/description of second nonparty]’s negligence a
substantial factor in causing harm to [name of plaintiff]?
7. Yes No
7. [Repeat as necessary for other nonparties.]
7. If you answered yes for any person in question 7, then answer
question 8. If you answered no for any person in question 7, then
insert the number zero next to that person’s name in question 8
and answer question 8.
8. What percentage of responsibility for [name of plaintiff]’s harm do
you assign to the following? Insert a percentage for only those
who received “yes” answers in questions 2, 5, or 7:
[Name of first defendant]: %
[Name of second defendant]: %
[Name of plaintiff]: %
[Name/description of first non- %
party]:
[Name/description of second %
nonparty]:
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
405
Copyright Judicial Council of California
VF-402 NEGLIGENCE
2014, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements, CACI No. 405, Comparative Fault of Plaintiff, and CACI No. 406,
Apportionment of Responsibility.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
This verdict form is designed for a single plaintiff, multiple defendants, and multiple
nonparties who are alleged to have been negligent. If there are multiple plaintiffs,
consider preparing a separate verdict form for each. If a coplaintiff is alleged to
have been negligent and that coplaintiff’s negligence is alleged to have harmed the
plaintiff, treat the allegedly negligent coplaintiff as a nonparty in questions 6 and 7
and add the coplaintiff’s name to the list of contributing persons in question 8 of the
plaintiff’s verdict form.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-403. Primary Assumption of Risk—Liability of Coparticipant
We answer the questions submitted to us as follows:
1. Did [name of defendant] either intentionally injure [name of
plaintiff] or act so recklessly that [his/her/nonbinary pronoun]
conduct was entirely outside the range of ordinary activity
involved in [specify sport or activity, e.g., touch football]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
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VF-403 NEGLIGENCE
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, April 2009, December 2010,
December 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 470, Primary Assumption of
Risk—Exception to Nonliability—Coparticipant in Sport or Other Recreational
Activity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
408
Copyright Judicial Council of California
VF-404. Primary Assumption of Risk—Liability of Instructors,
Trainers, or Coaches
We answer the questions submitted to us as follows:
1. Was [name of defendant] [name of plaintiff]’s
[coach/trainer/instructor]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] intend to cause [name of plaintiff] injury
or act recklessly in that [his/her/nonbinary pronoun] conduct was
entirely outside the range of ordinary activity involved in
teaching or coaching [sport or other activity] in which [name of
plaintiff] was participating?
2. Yes No]
2. [or]
2. [Did [name of defendant]’s failure to use reasonable care increase
the risks to [name of plaintiff] over and above those inherent in
[sport or other activity]?
2. Yes No]
2. If your answer to [either option for] question 2 is yes, then
answer question 3. If you answered no [to both options], stop
here, answer no further questions, and have the presiding juror
sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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VF-404 NEGLIGENCE
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, December 2010, June 2012,
December 2016
Directions for Use
This verdict form is based on CACI No. 471, Primary Assumption of
Risk—Exception to Nonliability—Instructors, Trainers, or Coaches.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-405. Primary Assumption of Risk—Liability of Facilities
Owners and Operators and Event Sponsors
We answer the questions submitted to us as follows:
1. Was [name of defendant] the [owner/operator/sponsor/other] of
[e.g., a ski resort]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] do something or fail to do something that
unreasonably increased the risks to [name of plaintiff] over and
above those inherent in [sport or other recreational activity, e.g.,
snowboarding]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
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[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 472, Primary Assumption of
Risk—Exception to Nonliability—Facilities Owners and Operators and Event
Sponsors.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-406. Negligence—Providing Alcoholic Beverages to Obviously
Intoxicated Minor
We answer the questions submitted to us as follows:
1. [Was [name of defendant] [required to be] licensed to sell alcoholic
beverages?]
1. [or]
1. [Was [name of defendant] authorized by the federal government to
sell alcoholic beverages on a military base or other federal
enclave?]
1. Yes No]
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] [sell/ give] alcoholic beverages to [name
of alleged minor]?
2. Yes No]
2. [or]
2. [Did [name of defendant] cause alcoholic beverages to be [sold/
given away] to [name of alleged minor]?]
2. Yes No]
2. If your answer to either option for question 2 is yes, then answer
question 3. If you answered no to both options, stop here, answer
no further questions, and have the presiding juror sign and date
this form.
3. Was [name of alleged minor] less than 21 years old at the time?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. When [name of defendant] provided the alcoholic beverages, did
[name of alleged minor] display symptoms that would lead a
reasonable person to conclude that [name of alleged minor] was
obviously intoxicated?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
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answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of alleged minor] later harm [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s [selling/giving] alcoholic beverages to
[name of alleged minor] a substantial factor in causing [name of
plaintiff]’s harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror 415
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VF-406 NEGLIGENCE
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010,
December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 422, Providing Alcoholic Beverages to
Obviously Intoxicated Minors.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Omit question 1 if the defendant is a person such as a social host who, though not
required to be licensed, sells alcohol to an obviously intoxicated minor. (See Ennabe
v. Manosa (2014) 58 Cal.4th 697, 711 [168 Cal.Rptr.3d 440, 319 P.3d 201].)
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the comparative fault of the plaintiff is an issue, this form should be modified.
See CACI No. VF-401, Negligence—Single Defendant—Plaintiff’s Negligence at
Issue—Fault of Others Not at Issue, for a model form involving the issue of
comparative fault.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-407. Strict Liability—Ultrahazardous Activities
We answer the questions submitted to us as follows:
1. Was [name of defendant] engaged in [insert ultrahazardous
activity]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] harmed?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff]’s harm the kind of harm that would be
anticipated as a result of the risk created by [insert ultrahazardous
activity]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s [insert ultrahazardous activity] a
substantial factor in causing [name of plaintiff]’s harm?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 460, Strict Liability for Ultrahazardous
Activities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-408. Strict Liability for Domestic Animal With Dangerous
Propensities
We answer the questions submitted to us as follows:
1. Did [name of defendant] own, keep, or control a [insert type of
animal]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [insert type of animal] have an unusually dangerous nature
or tendency?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know, or should [he/she/nonbinary
pronoun] have known, that the [insert type of animal] had this
nature or tendency?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the [insert type of animal]’s unusually dangerous nature or
tendency a substantial factor in causing harm to [name of
plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 462, Strict Liability for Injury Caused by
Domestic Animal With Dangerous Propensities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-409. Dog Bite Statute (Civ. Code, § 3342)
We answer the questions submitted to us as follows:
1. Did [name of defendant]’s dog bite [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] in a public place or lawfully on private
property when [he/she/nonbinary pronoun] was bitten?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the dog a substantial factor in causing harm to [name of
plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are the damages, if any, that [name of plaintiff] suffered as a
result of the dog bite?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
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[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 463, Dog Bite Statute (Civ. Code,
§ 3342)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-410. Statute of Limitations—Delayed Discovery—Reasonable
Investigation Would Not Have Disclosed Pertinent Facts
We answer the questions submitted to us as follows:
1. Did [name of plaintiff]’s claimed harm occur before [insert date
from applicable statute of limitations]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Before [insert date from applicable statute of limitations], did [name
of plaintiff] know of facts that would have caused a reasonable
person to suspect that [he/she/nonbinary pronoun/it] had suffered
harm that was caused by someone’s wrongful conduct?
2. Yes No
2. [or]
2. Would a reasonable and diligent investigation have disclosed
before [insert date from applicable statute of limitations] that
[specify factual basis for cause of action, e.g., “a medical device” or
“inadequate medical treatment”] contributed to [name of plaintiff]’s
harm?
2. Yes No
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2007; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 454, Affırmative Defense—Statute of
Limitations, and CACI No. 455, Statute of Limitations—Delayed Discovery. If the
only issue is whether the plaintiff’s harm occurred before or after the limitation date,
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omit question 2. If the plaintiff claims that the delayed-discovery rule applies to
save the action, use the first option for question 2. If the plaintiff claims that a
reasonable investigation would not have disclosed the pertinent information before
the limitation date, use the second option for question 2.
The date to be inserted throughout is the applicable limitation period before the
filing date. For example, if the limitation period is two years and the filing date is
August 31, 2007, the date is August 31, 2005.
In question 1, “claimed harm” refers to all of the elements of the cause of action,
which must have occurred before the cause of action accrues and the limitation
period begins. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018,
1029 [98 Cal.Rptr.2d 661].) In some cases, it may be necessary to modify this term
to refer to specific facts that give rise to the cause of action.
The first option for question 2 may be modified to refer to specific facts that the
plaintiff may have known.
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VF-411. Parental Liability (Nonstatutory)
We answer the questions submitted to us as follows:
1. Was [name of defendant] aware of habits or tendencies of [name of
minor] that created an unreasonable risk of harm to other
persons and led to [name of plaintiff]’s harm?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] have the opportunity and ability to
control the conduct of [name of minor]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant] negligent because [he/she/nonbinary
pronoun] failed to exercise reasonable care to prevent [name of
minor]’s conduct?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
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[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-405 December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 428, Parental Liability (Nonstatutory).
Questions 1 and 3 can be altered to correspond to one or both of the alternative
bracketed option in elements 1 and 3 of CACI No. 428.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-412–VF-499. Reserved for Future Use
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MEDICAL NEGLIGENCE
500. Medical Negligence—Essential Factual Elements
501. Standard of Care for Health Care Professionals
502. Standard of Care for Medical Specialists
503A. Psychotherapist’s Duty to Protect Intended Victim From Patient’s Threat
503B. Affirmative Defense—Psychotherapist’s Communication of Threat to Victim
and Law Enforcement
504. Standard of Care for Nurses
505. Success Not Required
506. Alternative Methods of Care
507. Duty to Warn Patient
508. Duty to Refer to a Specialist
509. Abandonment of Patient
510. Derivative Liability of Surgeon
511. Wrongful Birth—Sterilization/Abortion—Essential Factual Elements
512. Wrongful Birth—Essential Factual Elements
513. Wrongful Life—Essential Factual Elements
514. Duty of Hospital
515. Duty of Hospital to Provide Safe Environment
516. Duty of Hospital to Screen Medical Staff
517. Affirmative Defense—Patient’s Duty to Provide for the Patient’s Own Well-
Being
518. Medical Malpractice: Res ipsa loquitur
519–530. Reserved for Future Use
530A. Medical Battery
530B. Medical Battery—Conditional Consent
531. Consent on Behalf of Another
532. Informed Consent—Definition
533. Failure to Obtain Informed Consent—Essential Factual Elements
534. Informed Refusal—Definition
535. Risks of Nontreatment—Essential Factual Elements
536–549. Reserved for Future Use
550. Affirmative Defense—Plaintiff Would Have Consented
551. Affirmative Defense—Waiver
552. Affirmative Defense—Simple Procedure
553. Affirmative Defense—Emotional State of Patient
554. Affirmative Defense—Emergency
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555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-
Year Limit (Code Civ. Proc., § 340.5)
556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-
Year Limit (Code Civ. Proc., § 340.5)
557–599. Reserved for Future Use
VF-500. Medical Negligence
VF-501. Medical Negligence—Informed Consent—Affirmative Defense—Plaintiff
Would Have Consented Even If Informed
VF-502. Medical Negligence—Informed Consent—Affirmative
Defense—Emergency
VF-503–VF-599. Reserved for Future Use
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500. Medical Negligence—Essential Factual Elements
Please see CACI No. 400, Negligence—Essential Factual Elements
New September 2003; Revised December 2011, December 2015
Directions for Use
In medical malpractice or professional negligence cases, the word “medical” or
“professional” should be added before the word “negligence” in the first paragraph
of CACI No. 400. From a theoretical standpoint, medical negligence is still
considered negligence. (See Flowers v. Torrance Memorial Hospital Medical Center
(1994) 8 Cal.4th 992, 997–998 [35 Cal.Rptr.2d 685, 884 P.2d 142].)
Also give the appropriate standard-of-care instruction for the defendant’s category of
medical professional. (See CACI No. 501, Standard of Care for Health Care
Professionals, CACI No. 502, Standard of Care for Medical Specialists, CACI No.
504, Standard of Care for Nurses, CACI No. 514, Duty of Hospital.)
It is not necessary to instruct that causation must be proven within a reasonable
medical probability based upon competent expert testimony. The reference to
“medical probability” in medical malpractice cases is no more than a recognition
that the case involves the use of medical evidence. (Uriell v. Regents of University
of California (2015) 234 Cal.App.4th 735, 746 [184 Cal.Rptr.3d 79].)
Sources and Authority
• “Professional Negligence” of Health Care Provider Defined. Code of Civil
Procedure section 340.5, Civil Code sections 3333.1 and 3333.2.
• “The elements of a cause of action for medical malpractice are: (1) a duty to use
such skill, prudence, and diligence as other members of the profession
commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal
connection between the negligent conduct and the injury; and (4) resulting loss
or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 [191
Cal.Rptr.3d 766].)
• “The court’s use of standard jury instructions for the essential elements of
negligence, including causation, was appropriate because medical negligence is
fundamentally negligence.” (Uriell, supra, 234 Cal.App.4th at p. 744 [citing
Directions for Use to this instruction].)
• “Section 340.5 defines ‘professional negligence’ as ‘a negligent act or omission
by a health care provider in the rendering of professional services, which act or
omission is the proximate cause of a personal injury or wrongful death, provided
that such services are within the scope of services for which the provider is
licensed and which are not within any restriction imposed by the licensing
agency or licensed hospital.’ The term ‘professional negligence’ encompasses
actions in which ‘the injury for which damages are sought is directly related to
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the professional services provided by the health care provider’ or directly related
to ‘a matter that is an ordinary and usual part of medical professional services.’
‘[C]ourts have broadly construed “professional negligence” to mean negligence
occurring during the rendering of services for which the health care provider is
licensed.’ ” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 297 [170 Cal.Rptr.3d
125], original italics, internal citations omitted.)
• “With respect to professionals, their specialized education and training do not
serve to impose an increased duty of care but rather are considered additional
‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary
prudence’ in a particular situation.” (Flowers, supra, 8 Cal.4th at pp. 997–998.)
• “Since the standard of care remains constant in terms of ‘ordinary prudence,’ it
is clear that denominating a cause of action as one for ‘professional negligence’
does not transmute its underlying character. For substantive purposes, it merely
serves to establish the basis by which ‘ordinary prudence’ will be calculated and
the defendant’s conduct evaluated.” (Flowers, supra, 8 Cal.4th at p. 998.)
• “The Medical Injury Compensation Reform Act (MICRA) contains numerous
provisions effecting substantial changes in negligence actions against health care
providers, including a limitation on noneconomic damages, elimination of the
collateral source rule as well as preclusion of subrogation in most instances, and
authorization for periodic payments of future damages in excess of $ 50,000.
While in each instance the statutory scheme has altered a significant aspect of
claims for medical malpractice, such as the measure of the defendant’s liability
for damages or the admissibility of evidence, the fundamental substance of such
actions on the issues of duty, standard of care, breach, and causation remains
unaffected.” (Flowers, supra, 8 Cal.4th at p. 999.)
• “On causation, the plaintiff must establish ‘it is more probable than not the
negligent act was a cause-in-fact of the plaintiff’s injury.’ ‘ “A possible cause
only becomes ‘probable’ when, in the absence of other reasonable causal
explanations, it becomes more likely than not that the injury was a result of its
action.” ’ ‘[C]ausation in actions arising from medical negligence must be proven
within a reasonable medical probability based on competent expert testimony,
i.e., something more than a “50-50 possibility.” ’ ‘[T]he evidence must be
sufficient to allow the jury to infer that in the absence of the defendant’s
negligence, there was a reasonable medical probability the plaintiff would have
obtained a better result.’ ” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th
234, 247 [235 Cal.Rptr.3d 629], internal citations omitted.)
• “That there is a distinction between a reasonable medical ‘probability’ and a
medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’
indeed, an infinite number of circumstances which can produce an injury or
disease. A possible cause only becomes ‘probable’ when, in the absence of other
reasonable causal explanations, it becomes more likely than not that the injury
was a result of its action. This is the outer limit of inference upon which an
issue may be submitted to the jury.” (Jennings v. Palomar Pomerado Health
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MEDICAL NEGLIGENCE CACI No. 500
Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [8 Cal.Rptr.3d 363], original
italics, internal citations omitted.)
• “The rationale advanced by the hospital is that . . . if the need for restraint is
‘obvious to all,’ the failure to restrain is ordinary negligence. . . . [T]his
standard is incompatible with the subsequently enacted statutory definition of
professional negligence, which focuses on whether the negligence occurs in the
rendering of professional services, rather than whether a high or low level of
skill is required. [Citation.]” (Bellamy v. Appellate Dep’t of the Superior Court
(1996) 50 Cal.App.4th 797, 806–807 [57 Cal.Rptr.2d 894].)
• “[E]ven in the absence of a physician-patient relationship, a physician has
liability to an examinee for negligence or professional malpractice for injuries
incurred during the examination itself.” (Mero v. Sadoff (1995) 31 Cal.App.4th
1466, 1478 [37 Cal.Rptr.2d 769].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1066–1068, 1071,
1072
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.65
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.11, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.01 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.15 (Matthew
Bender)
27 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13, 295.43
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et
seq. (Matthew Bender)
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501. Standard of Care for Health Care Professionals
[A/An] [insert type of medical practitioner] is negligent if [he/she/nonbinary
pronoun] fails to use the level of skill, knowledge, and care in diagnosis
and treatment that other reasonably careful [insert type of medical
practitioners] would use in the same or similar circumstances. This level
of skill, knowledge, and care is sometimes referred to as “the standard of
care.”
[You must determine the level of skill, knowledge, and care that other
reasonably careful [insert type of medical practitioners] would use in the
same or similar circumstances, based only on the testimony of the expert
witnesses [including [name of defendant]] who have testified in this case.]
New September 2003; Revised October 2004, December 2005, December 2010
Directions for Use
This instruction is intended to apply to nonspecialist physicians, surgeons, and
dentists. The standards of care for nurses, specialists, and hospitals are addressed in
separate instructions. (See CACI No. 502, Standard of Care for Medical Specialists,
CACI No. 504, Standard of Care for Nurses, and CACI No. 514, Duty of Hospital.)
The second paragraph should be used if the court determines that expert testimony
is necessary to establish the standard of care, which is usually the case. (See Scott v.
Rayhrer (2010) 185 Cal.App.4th 1535, 1542–1543 [111 Cal.Rptr.3d 36].)
If the standard of care is set by statute or regulation, refer to instructions on
negligence per se (CACI Nos. 418–421). (See Galvez v. Frields (2001) 88
Cal.App.4th 1410 [107 Cal.Rptr.2d 50].)
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
Sources and Authority
• “With unimportant variations in phrasing, we have consistently held that a
physician is required to possess and exercise, in both diagnosis and treatment,
that reasonable degree of knowledge and skill which is ordinarily possessed and
exercised by other members of his profession in similar circumstances.”
(Landeros v. Flood (1976) 17 Cal.3d 399, 408 [131 Cal.Rptr. 69, 551 P.2d 389].)
• “The courts require only that physicians and surgeons exercise in diagnosis and
treatment that reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of the medical profession under similar
circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36 [210 Cal.Rptr.
762, 694 P.2d 1134].)
• “[T]he law imposes on individuals a duty to have medical education, training
and skill before practicing medicine and that practicing medicine without this
education, training and skill is negligent. . . . [A] breach of that portion of the
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standard of care does not, in and of itself, establish actionable malpractice (i.e.,
one cannot recover from a person merely for lacking medical knowledge unless
that lack of medical knowledge caused injury to the plaintiff).” (Hinson v.
Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1119 [267
Cal.Rptr. 503], disapproved on other grounds in Alexander v. Superior Court
(1993) 5 Cal.4th 1218, 1228 [23 Cal.Rptr.2d 397, 859 P.2d 96].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating to
the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
• “Today, ‘neither the Evidence Code nor Supreme Court precedent requires an
expert witness to have practiced in a particular locality before he or she can
render an opinion in an ordinary medical malpractice case.’ ” (Borrayo v. Avery
(2016) 2 Cal.App.5th 304, 310–311 [205 Cal.Rptr.3d 825], original italics.)
• “As a general rule, the testimony of an expert witness is required in every
professional negligence case to establish the applicable standard of care, whether
that standard was met or breached by the defendant, and whether any negligence
by the defendant caused the plaintiff’s damages. A narrow exception to this rule
exists where’ ” ‘. . . the conduct required by the particular circumstances is
within the common knowledge of the layman.’ . . . [Citations.]” ’ This exception
is, however, a limited one. It arises when a foreign object such as a sponge or
surgical instrument, is left in a patient following surgery and applies only when
the plaintiff can invoke the doctrine of res ipsa loquitur. ‘The “common
knowledge” exception is generally limited to situations in which . . . a
layperson “. . . [can] say as a matter of common knowledge . . . that the
consequences of professional treatment were not such as ordinarily would have
followed if due care had been exercised.” . . .’ ” (Scott, supra, 185 Cal.App.4th
at pp. 1542–1543, footnote and internal citations omitted.)
• “We have already held upon authority that the failure to remove a sponge from
the abdomen of a patient is negligence of the ordinary type and that it does not
involve knowledge of materia medica or surgery but that it belongs to that class
of mental lapses which frequently occur in the usual routine of business and
commerce, and in the multitude of commonplace affairs which come within the
group of ordinary actionable negligence. The layman needs no scientific
enlightenment to see at once that the omission can be accounted for on no other
theory than that someone has committed actionable negligence.” (Ales v. Ryan
(1936) 8 Cal.2d 82, 93 [64 P.2d 409].)
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• The medical malpractice standard of care applies to veterinarians. (Williamson v.
Prida (1999) 75 Cal.App.4th 1417, 1425 [89 Cal.Rptr.2d 868].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1066, 1067, 1104,
1108
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.1
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.11 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.42 (Matthew
Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13,
295.43, 295.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et seq. (Matthew Bender)
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502. Standard of Care for Medical Specialists
[A/An] [insert type of medical specialist] is negligent if [he/she/nonbinary
pronoun] fails to use the level of skill, knowledge, and care in diagnosis
and treatment that other reasonably careful [insert type of medical
specialists] would use in similar circumstances. This level of skill,
knowledge, and care is sometimes referred to as “the standard of care.”
[You must determine the level of skill, knowledge, and care that other
reasonably careful [insert type of medical specialists] would use in similar
circumstances based only on the testimony of the expert witnesses
[including [name of defendant]] who have testified in this case.]
New September 2003; Revised October 2004
Directions for Use
This instruction is intended to apply to physicians, surgeons, and dentists who are
specialists in a particular practice area.
The second paragraph should be used except in cases where the court determines
that expert testimony is not necessary to establish the standard of care.
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
Sources and Authority
• “In those cases where a medical specialist is alleged to have acted negligently,
the ‘specialist must possess and use the learning, care and skill normally
possessed and exercised by practitioners of that specialty under the same or
similar circumstances.’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968
[191 Cal.Rptr.3d 766].)
• “In the first place, the special obligation of the professional is exemplified by his
duty not merely to perform his work with ordinary care but to use the skill,
prudence, and diligence commonly exercised by practitioners of his profession.
If he further specializes within the profession, he must meet the standards of
knowledge and skill of such specialists.” (Neel v. Magana, Olney, Levy, Cathcart
& Gelfand (1971) 6 Cal.3d 176, 188 [98 Cal.Rptr. 837, 491 P.2d 421].)
• “The difference between the duty owed by a specialist and that owed by a
general practitioner lies not in the degree of care required but in the amount of
skill required.” (Valentine v. Kaiser Foundation Hospitals (1961) 194 Cal.App.2d
282, 294 [15 Cal.Rptr. 26] (disapproved on other grounds by Siverson v. Weber
(1962) 57 Cal.2d 834, 839 [22 Cal.Rptr. 337, 372 P.2d 97]).)
• “The role of the psychiatrist, who is indeed a practitioner of medicine, and that
of the psychologist who performs an allied function, are like that of the
physician who must conform to the standards of the profession and who must
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often make diagnoses and predictions based upon such evaluations. Thus the
judgment of the therapist in diagnosing emotional disorders and in predicting
whether a patient presents a serious danger of violence is comparable to the
judgment which doctors and professionals must regularly render under accepted
rules of responsibility.” (Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d
425, 438 [131 Cal.Rptr. 14, 551 P.2d 334].)
• “[A] psychotherapist or other mental health care provider has a duty to use a
reasonable degree of skill, knowledge and care in treating a patient,
commensurate with that possessed and exercised by others practicing within that
specialty in the professional community.” (Kockelman v. Segal (1998) 61
Cal.App.4th 491, 505 [71 Cal.Rptr.2d 552].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating to
the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.2
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.85 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et seq. (Matthew Bender)
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503A. Psychotherapist’s Duty to Protect Intended Victim From
Patient’s Threat
[Name of plaintiff] claims that [name of defendant]’s failure to protect
[name of plaintiff/decedent] was a substantial factor in causing [injury to
[name of plaintiff]/the death of [name of decedent]]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] was a psychotherapist;
2. That [name of patient] was [name of defendant]’s patient;
3. That [name of patient] communicated to [name of defendant] a
serious threat of physical violence;
4. That [name of plaintiff/decedent] was a reasonably identifiable
victim of [name of patient]’s threat;
5. That [name of patient] [injured [name of plaintiff]/killed [name of
decedent]];
6. That [name of defendant] failed to make reasonable efforts to
protect [name of plaintiff/decedent]; and
7. That [name of defendant]’s failure was a substantial factor in
causing [[name of plaintiff]’s injury/the death of [name of
decedent]].
Derived from former CACI No. 503 April 2007; Revised June 2013, May 2020
Directions for Use
Read this instruction for a Tarasoff cause of action for professional negligence
against a psychotherapist for failure to protect a victim from a patient’s act of
violence after the patient communicated to the therapist a threat against the victim.
(See Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14,
551 P.2d 334].) The liability imposed by Tarasoff is modified by the provisions of
Civil Code section 43.92(a). First read CACI No. 503B, Affırmative
Defense—Psychotherapist’s Communication of Threat to Victim and Law
Enforcement, if the therapist asserts that the therapist is immune from liability under
Civil Code section 43.92(b) because the therapist made reasonable efforts to
communicate the threat to the victim and to a law enforcement agency.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(a).
• “[T]herapists cannot escape liability merely because [the victim] was not their
patient. When a therapist determines, or pursuant to the standards of his
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profession should determine, that his patient presents a serious danger of
violence to another, he incurs an obligation to use reasonable care to protect the
intended victim against such danger. The discharge of this duty may require the
therapist to take one or more of various steps, depending upon the nature of the
case. Thus it may call for him to warn the intended victim or others likely to
apprise the victim of the danger, to notify the police, or to take whatever other
steps are reasonably necessary under the circumstances.” (Tarasoff, supra, 17
Cal.3d at p. 431.)
• Civil Code section 43.92 was enacted to limit the liability of psychotherapists
under Tarasoff regarding a therapist’s duty to warn an intended victim. (Barry v.
Turek (1990) 218 Cal.App.3d 1241, 1244–1245 [267 Cal.Rptr. 553].) Under this
provision, “[p]sychotherapists thus have immunity from Tarasoff claims except
where the plaintiff proves that the patient has communicated to his or her
psychotherapist a serious threat of physical violence against a reasonably
identifiable victim or victims.” (Barry, supra, 218 Cal.App.3d at p. 1245.)
• “When the communication of the serious threat of physical violence is received
by the therapist from a member of the patient’s immediate family and is shared
for the purpose of facilitating and furthering the patient’s treatment, the fact that
the family member is not technically a ‘patient’ is not crucial to the statute’s
purpose.” (Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 817 [15 Cal.Rptr.3d
864].)
• “Section 43.92 strikes a reasonable balance in that it does not compel the
therapist to predict the dangerousness of a patient. Instead, it requires the
therapist to attempt to protect a victim under limited circumstances, even though
the therapist’s disclosure of a patient confidence will potentially disrupt or
destroy the patient’s trust in the therapist. However, the requirement is imposed
upon the therapist only after he or she determines that the patient has made a
credible threat of serious physical violence against a person.” (Calderon v. Glick
(2005) 131 Cal.App.4th 224, 231 [31 Cal.Rptr.3d 707].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1189, 1190
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services and Civil Rights, § 361A.93
(Matthew Bender)
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
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503B. Affirmative Defense—Psychotherapist’s Communication of
Threat to Victim and Law Enforcement
[Name of defendant] is not responsible for [[name of plaintiff]’s injury/the
death of [name of decedent]] if [name of defendant] proves that [he/she/
nonbinary pronoun] made reasonable efforts to communicate the threat to
[name of plaintiff/decedent] and to a law enforcement agency.
Derived from former CACI No. 503 April 2007; Revised June 2013, May 2020
Directions for Use
Read this instruction for a Tarasoff cause of action for professional negligence
against a psychotherapist (Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425
[131 Cal.Rptr. 14, 551 P.2d 334]) if there is a dispute of fact regarding whether the
defendant made reasonable efforts to communicate to the victim and to a law
enforcement agency a threat made by the defendant’s patient. The therapist is
immune from liability under Tarasoff if the therapist makes reasonable efforts to
communicate the threat to the victim and to a law enforcement agency. (Civ. Code,
§ 43.92(b).) CACI No. 503A, Psychotherapist’s Duty to Protect Intended Victim
From Patient’s Threat, sets forth the elements of a Tarasoff cause of action if the
defendant is not immune.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(b).
• Failure to inform a law enforcement agency concerning a homicidal threat made
by a patient against his work supervisor did not abrogate the “firefighter’s rule”
and, therefore, did not render the psychiatrist liable to a police officer who was
subsequently shot by the patient. (Tilley v. Schulte (1999) 70 Cal.App.4th 79,
85–86 [82 Cal.Rptr.2d 497].)
• “When the communication of the serious threat of physical violence is received
by the therapist from a member of the patient’s immediate family and is shared
for the purpose of facilitating and furthering the patient’s treatment, the fact that
the family member is not technically a ‘patient’ is not crucial to the statute’s
purpose.” (Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 817 [15 Cal.Rptr.3d
864].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1189, 1190
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services and Civil Rights, § 361A.93
(Matthew Bender)
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CACI No. 503B MEDICAL NEGLIGENCE
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
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504. Standard of Care for Nurses
[A/An] [insert type of nurse] is negligent if [he/she/nonbinary pronoun] fails
to use the level of skill, knowledge, and care in diagnosis and treatment
that other reasonably careful [insert type of nurses] would use in similar
circumstances. This level of skill, knowledge, and care is sometimes
referred to as “the standard of care.”
[You must determine the level of skill, knowledge, and care that other
reasonably careful [insert type of nurses] would use in similar
circumstances based only on the testimony of the expert witnesses
[including [name of defendant]] who have testified in this case.]
New September 2003; Revised October 2004, June 2010
Directions for Use
The appropriate level of nurse should be inserted where indicated—i.e., registered
nurse, licensed vocational nurse, nurse practitioner.
The second paragraph should be included unless the court determines that expert
testimony is not necessary to establish the standard of care.
Sources and Authority
• “[A] nurse is negligent if he or she fails to meet the standard of care—that is,
fails to use the level of skill, knowledge, and care that a reasonably careful nurse
would use in similar circumstances.” (Massey v. Mercy Med. Ctr. Redding (2009)
180 Cal.App.4th 690, 694 [103 Cal.Rptr.3d 209] [citing this instruction].)
• “ ‘[T]oday’s nurses are held to strict professional standards of knowledge and
performance.’ But ‘[s]ome difficulties are presented [in the nursing malpractice
context] by the fact that a nurse’s traditional role has involved “both routine,
nontechnical tasks as well as specialized nursing tasks. If, in considering the
case law in this area, the dispute is analyzed in terms of what action by the
nurse is being complained about, it is possible to make some sense out of the
relevant decisions.” ’ ” (Massey, supra, 180 Cal.App.4th at p. 697, internal
citation omitted.)
• “[A] nurse’s conduct must not be measured by the standard of care required of a
physician or surgeon, but by that of other nurses in the same or similar locality
and under similar circumstances.” (Lattimore v. Dickey (2015) 239 Cal.App.4th
959, 969 [191 Cal.Rptr.3d 766].)
• The jury should not be instructed that the standard of care for a nurse
practitioner must be measured by the standard of care for a physician or surgeon
when the nurse is examining a patient or making a diagnosis. (Fein v.
Permanente Medical Group (1985) 38 Cal.3d 137, 150 [211 Cal.Rptr. 368, 695
P.2d 665].) Courts have observed that nurses are trained, “but to a lesser degree
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than a physician, in the recognition of the symptoms of diseases and injuries.”
(Cooper v. National Motor Bearing Co. (1955) 136 Cal.App.2d 229, 238 [288
P.2d 581].)
• “[E]xpert opinion testimony is required to prove that a defendant nurse did not
meet the standard of care and therefore was negligent, ‘except in cases where the
negligence is obvious to laymen.’ ” (Massey, supra, 180 Cal.App.4th at pp.
694–695.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1129–1130
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.52
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.84 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et
seq. (Matthew Bender)
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505. Success Not Required
[A/An] [insert type of medical practitioner] is not necessarily negligent just
because [his/her/nonbinary pronoun] efforts are unsuccessful or [he/she/
nonbinary pronoun] makes an error that was reasonable under the
circumstances. [A/An] [insert type of medical practitioner] is negligent only
if [he/she/nonbinary pronoun] was not as skillful, knowledgeable, or
careful as other reasonable [insert type of medical practitioners] would
have been in similar circumstances.
New September 2003
Directions for Use
Plaintiffs have argued that this type of instruction “provides too easy an ‘out’ for
malpractice defendants.” (Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331,
343 [160 Cal.Rptr. 246].) Nevertheless, in California, instructions on this point have
been sustained when challenged. (Rainer v. Community Memorial Hospital (1971)
18 Cal.App.3d 240, 260 [95 Cal.Rptr. 901].)
Sources and Authority
• “While a physician cannot be held liable for mere errors of judgment or for
erroneous conclusions on matters of opinion, he must use the judgment and form
the opinions of one possessed of knowledge and skill common to medical men
practicing, in the same or like community and that he may have done his best is
no answer to an action of this sort.” (Sim v. Weeks (1935) 7 Cal.App.2d 28, 36
[45 P.2d 350].)
• “The ‘law has never held a physician or surgeon liable for every untoward result
which may occur in medical practice’ but it ‘demands only that a physician or
surgeon have the degree of learning and skill ordinarily possessed by
practitioners of the medical profession in the same locality and that he exercise
ordinary care in applying such learning and skill to the treatment of his
patient.’ ” (Huffman v. Lindquist (1951) 37 Cal.2d 465, 473 [234 P.2d 34],
internal citations omitted.)
• It is appropriate to instruct a jury that “they do not necessarily adjudge whether
there was negligence in terms of the result achieved . . . .” (Dincau v. Tamayose
(1982) 131 Cal.App.3d 780, 800 [182 Cal.Rptr. 855].)
• “[A] physician and surgeon is not required to make a perfect diagnosis but is
only required to have that degree of skill and learning ordinarily possessed by
physicians of good standing practicing in the same locality and to use ordinary
care and diligence in applying that learning to the treatment of his patient.” (Ries
v. Reinard (1941) 47 Cal.App.2d 116, 119 [117 P.2d 386].)
• “A doctor is not a warrantor of cures nor is he required to guarantee results and
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CACI No. 505 MEDICAL NEGLIGENCE
in the absence of a want of reasonable care and skill will not be held responsible
for untoward results.” (Sanchez v. Rodriguez (1964) 226 Cal.App.2d 439, 449
[38 Cal.Rptr. 110].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1066, 1067
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.5
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.01 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.38
(Matthew Bender)
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506. Alternative Methods of Care
[A/An] [insert type of medical practitioner] is not necessarily negligent just
because [he/she/nonbinary pronoun] chooses one medically accepted
method of treatment or diagnosis and it turns out that another medically
accepted method would have been a better choice.
New September 2003
Sources and Authority
• “A difference of medical opinion concerning the desirability of one particular
medical procedure over another does not . . . establish that the determination to
use one of the procedures was negligent.” (Clemens v. Regents of Univ. of
California (1970) 8 Cal.App.3d 1, 13 [87 Cal.Rptr. 108].)
• “Medicine is not a field of absolutes. There is not ordinarily only one correct
route to be followed at any given time. There is always the need for professional
judgment as to what course of conduct would be most appropriate with regard to
the patient’s condition.” (Barton v. Owen (1977) 71 Cal.App.3d 484, 501–502
[139 Cal.Rptr. 494].)
• This type of instruction may be important in arriving at a fair decision: “[I]n
determining whether defendants breached a standard of care owed decedent, the
jury may not engage in ‘but for’ reasoning.” (Meier v. Ross General Hospital
(1968) 69 Cal.2d 420, 435 [71 Cal.Rptr. 903, 445 P.2d 519].)
• “[I]n order for CACI No. 506 to be given, there must have been expert
testimony presented to the jury to the effect that a medical practitioner chose a
medically accepted method of diagnosis (or treatment) from among alternative
medically accepted methods of diagnosis (or treatment).” (Ayala v. Arroyo Vista
Family Health Center (2008) 160 Cal.App.4th 1350, 1353 [73 Cal.Rptr.3d 486].)
Secondary Sources
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.11 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.34 (Matthew Bender)
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507. Duty to Warn Patient
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun] did not warn [name of patient] that [his/her/
nonbinary pronoun] condition presented a danger to others.
[Name of defendant] was negligent if [name of plaintiff] proves that [he/
she/nonbinary prounoun] did not take reasonable steps to warn [name of
patient] that [his/her/nonbinary prounoun] condition presented a danger to
others.
New September 2003
Directions for Use
This instruction is intended to cover situations where a patient’s condition
foreseeably causes harm to a third party.
Sources and Authority
• “To avoid liability in this case, [defendants] should have taken whatever steps
were reasonable under the circumstances to protect [plaintiff] and other
foreseeable victims of [patient]’s dangerous conduct. What is a reasonable step
to take will vary from case to case.” (Myers v. Quesenberry (1983) 144
Cal.App.3d 888, 894 [193 Cal.Rptr. 733], internal citations omitted.) “Our
holding does not require the physician to do anything other than what he was
already obligated to do for the protection of the patient. Thus, even though it
may appear that the scope of liability has been expanded to include injuries to
foreseeable victims other than the patient, the standard of medical care to the
patient remains the same.” (Ibid.)
• “When the avoidance of foreseeable harm to a third person requires a defendant
to control the conduct of a person with whom the defendant has a special
relationship (such as physician and patient) or to warn the person of the risks
involved in certain conduct, the defendant’s duty extends to a third person with
whom the defendant does not have a special relationship.” (Reisner v. Regents of
Univ. of California (1995) 31 Cal.App.4th 1195, 1198–1199 [37 Cal.Rptr.2d 518]
[infected sex partner could maintain action against his partner’s physicians for
failing to tell the young woman that she had received HIV-tainted blood].)
• Proof of causation is still required: “[Defendants] will be liable only if [plaintiff]
is able to prove their failure to warn [patient] not to drive in an irrational and
uncontrolled diabetic condition was a substantial factor in causing his injuries.”
(Myers, supra, 144 Cal.App.3d at p. 895.)
• This obligation to third parties appears to be limited to healthcare professionals
and does not apply to ordinary citizens. (Koepke v. Loo (1993) 18 Cal.App.4th
1444, 1456–1457 [23 Cal.Rptr.2d 34].)
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MEDICAL NEGLIGENCE CACI No. 507
Secondary Sources
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.16 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.22,
175.23 (Matthew Bender)
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508. Duty to Refer to a Specialist
If a reasonably careful [insert type of medical practitioner] in the same
situation would have referred [name of patient] to a [insert type of medical
specialist], then [name of defendant] was negligent if [he/she/nonbinary
pronoun] did not do so.
However, if [name of defendant] treated [name of patient] with as much
skill and care as a reasonable [insert type of medical specialist] would
have, then [name of defendant] was not negligent.
New September 2003
Sources and Authority
• Physicians who elect to treat a patient even though the patient should have been
referred to a specialist will be held to the standard of care of that specialist. If
the physician meets the higher standard of care, he or she is not negligent.
(Simone v. Sabo (1951) 37 Cal.2d 253, 257 [231 P.2d 19].)
• If the evidence establishes that the failure of a nurse to consult the attending
physician under the circumstances presented in the case is not in accord with the
standard of care of the nursing profession, this instruction may be applicable.
(Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 344 [160 Cal.Rptr.
246].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1066, 1067
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.6
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.13 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.11 (Matthew
Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.20
(Matthew Bender)
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509. Abandonment of Patient
[Name of plaintiff] claims [name of defendant] was negligent because [he/
she/nonbinary pronoun] did not give [name of patient] enough notice
before withdrawing from the case. To succeed, [name of plaintiff] must
prove both of the following:
1. That [name of defendant] withdrew from [name of patient]’s care
and treatment; and
2. That [name of defendant] did not provide sufficient notice for
[name of patient] to obtain another medical practitioner.
However, [name of defendant] was not negligent if [he/she/nonbinary
pronoun] proves that [name of patient] consented to the withdrawal or
declined further medical care.
New September 2003
Sources and Authority
• As a general proposition, “a physician who abandons a patient may do so ‘only
. . . after due notice, and an ample opportunity afforded to secure the presence
of other medical attendance.’ [Citation.]” (Payton v. Weaver (1982) 131
Cal.App.3d 38, 45 [182 Cal.Rptr. 225].)
• “A physician cannot just walk away from a patient after accepting the patient for
treatment. . . . In the absence of the patient’s consent, the physician must notify
the patient he is withdrawing and allow ample opportunity to secure the presence
of another physician.” (Hongsathavij v. Queen of Angels/Hollywood Presbyterian
Medical Center (1998) 62 Cal.App.4th 1123, 1138 [73 Cal.Rptr.2d 695].)
• “When a competent, informed adult directs the withholding or withdrawal of
medical treatment, even at the risk of hastening or causing death, medical
professionals who respect that determination will not incur criminal or civil
liability: the patient’s decision discharges the physician’s duty.” (Thor v. Superior
Court (1993) 5 Cal.4th 725, 743 [21 Cal.Rptr.2d 357, 855 P.2d 375].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.8
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.42 (Matthew Bender)
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510. Derivative Liability of Surgeon
A surgeon is responsible for the negligence of other medical practitioners
or nurses who are under the surgeon’s supervision and control and
actively participating during an operation.
New September 2003; Revised April 2007, May 2020
Directions for Use
Give this instruction in a case in which the plaintiff seeks to hold a surgeon
vicariously responsible under the “captain-of-the-ship” doctrine for the negligence of
nurses or other hospital employees that occurs during the course of an operation.
There is some disagreement in the courts regarding whether the captain-of-the-ship
doctrine remains a viable rule of law. (Compare Truhitte v. French Hospital (1982)
128 Cal.App.3d 332, 348 [180 Cal.Rptr. 152] (doctrine has been eroded) with
Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1397–1398 [51 Cal.Rptr.3d
277] (doctrine remains viable).)
Sources and Authority
• The “captain of the ship” doctrine imposes liability on a surgeon under the
doctrine of respondeat superior for the acts of those under the surgeon’s special
supervision and control during the operation. (Thomas v. Intermedics
Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 967 [55 Cal.Rptr.2d 197].)
• “The doctrine has been explained as follows: ‘A physician generally is not liable
for the negligence of hospital or other nurses, attendants, or internes, who are
not his employees, particularly where he has no knowledge thereof or no
connection therewith. On the other hand, a physician is liable for the negligence
of hospital or other nurses, attendants, or internes, who are not his employees,
where such negligence is discoverable by him in the exercise of ordinary care,
he is negligent in permitting them to attend the patient, or the negligent acts
were performed under conditions where, in the exercise of ordinary care, he
could have or should have been able to prevent their injurious effects and did
not. [¶] The mere fact that a physician or surgeon gives instructions to a hospital
employee does not render the physician or surgeon liable for negligence of the
hospital employee in carrying out the instructions. Similarly, the mere right of a
physician to supervise a hospital employee is not sufficient to render the
physician liable for the negligence of such employee. On the other hand, if the
physician has the right to exercise control over the work to be done by the
hospital employee and the manner of its performance, or an employee of a
hospital is temporarily detached in whole or in part from the hospital’s general
control so as to become the temporary servant of the physician he assists, the
physician will be subject to liability for the employee’s negligence. [¶] Thus,
where a hospital employee, although not in the regular employ of an operating
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surgeon, is under his special supervision and control during the operation, the
relationship of master and servant exists, and the surgeon is liable, under the
doctrine of respondeat superior, for the employee’s negligence.’ ” (Thomas,
supra, 47 Cal.App.4th at pp. 966–967, original italics.)
• This doctrine applies only to medical personnel who are actively participating in
the surgical procedure. (Thomas, supra, 47 Cal.App.4th at pp. 966–967.)
• While the “captain of the ship” doctrine has never been expressly rejected, it has
been eroded by modern courts. “A theory that the surgeon directly controls all
activities of whatever nature in the operating room certainly is not realistic in
present day medical care.” (Truhitte, supra, 128 Cal.App.3d at p. 348, original
italics.)
• “[T]he Truhitte court ignores what we have already recognized as the special
relationship between a vulnerable hospital patient and the surgeon operating on
the patient. A helpless patient on the operating table who cannot understand or
control what is happening reasonably expects a surgeon to oversee her care and
to look out for her interests. We find this special relationship sufficient
justification for the continued application of captain of the ship doctrine.
Moreover, in light of the Supreme Court’s expressions of approval of the
doctrine . . . , we feel compelled to adhere to the doctrine.” (Baumgardner,
supra, 144 Cal.App.4th at pp. 1397–1398, internal citations omitted.)
• Absent evidence of right to control, an operating surgeon is generally not
responsible for the conduct of anesthesiologists or others who independently
carry out their duties. (Seneris v. Haas (1955) 45 Cal.2d 811, 828 [291 P.2d
915]; Marvulli v. Elshire (1972) 27 Cal.App.3d 180, 187 [103 Cal.Rptr. 461].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1109
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.4
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.25
(Matthew Bender)
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511. Wrongful Birth—Sterilization/Abortion—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] negligently failed to
prevent the birth of her child. To establish this claim, [name of plaintiff]
must prove both of the following:
1. That [name of defendant] performed a negligent
[sterilization/abortion] procedure; and
2. That [name of plaintiff] gave birth to an unplanned child after this
procedure was performed.
New September 2003
Directions for Use
The general medical negligence instructions—instructions on the standard of care
and causation—could be used in conjunction with this one.
Sources and Authority
• No Defense for Parent’s Failure or Refusal to Prevent Live Birth. Civil Code
section 43.6(b).
• “California law now permits a mother to hold medical personnel liable for their
negligent failure to prevent or to terminate a pregnancy.” (Foy v. Greenblott
(1983) 141 Cal.App.3d 1, 8 [190 Cal.Rptr. 84].)
• Negligent sterilization procedure that leads to the birth of a child, either normal
or disabled, can form the basis of a wrongful birth action. (Custodio v. Bauer
(1967) 251 Cal.App.2d 303, 323–325 [59 Cal.Rptr. 463]; Morris v. Frudenfeld
(1982) 135 Cal.App.3d 23, 37 [185 Cal.Rptr. 76].) The same is true of an
unsuccessful abortion procedure. (Stills v. Gratton (1976) 55 Cal.App.3d 698,
707–709 [127 Cal.Rptr. 652].)
• A wrongful birth claim based on a negligently performed sterilization or abortion
procedure does not support an action for wrongful life: “California courts do
recognize a wrongful life claim by an ‘impaired’ child for special damages (but
not for general damages), when the physician’s negligence is the proximate
cause of the child’s need for extraordinary medical care and training. No court,
however, has expanded tort liability to include wrongful life claims by children
born without any mental or physical impairment.” (Alexandria S. v. Pac. Fertility
Medical Ctr. (1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d 23].)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1110
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.22
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)
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512. Wrongful Birth—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[name of defendant] failed to inform [him/her/nonbinary pronoun] of the
risk that [he/she/nonbinary pronoun] would have a [genetically impaired/
disabled] child. To establish this claim, [name of plaintiff] must prove all
of the following:
[1. That [name of defendant] negligently failed to [diagnose/ [or] warn
[name of plaintiff] of] the risk that [name of child] would be born
with a [genetic impairment/disability];]
[1. [or]
[1. That [name of defendant] negligently failed to [perform
appropriate tests/advise [name of plaintiff] of tests] that would
more likely than not have disclosed the risk that [name of child]
would be born with a [genetic impairment/disability];]
2. That [name of child] was born with a [genetic
impairment/disability];
3. That if [name of plaintiff] had known of the [genetic impairment/
disability], [insert name of mother] would not have conceived [name
of child] [or would not have carried the fetus to term]; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff] to have to pay extraordinary expenses
to care for [name of child].
New September 2003; Revised April 2007
Directions for Use
The general medical negligence instructions on the standard of care and causation
(see CACI Nos. 500–502) may be used in conjunction with this instruction. Read
also CACI No. 513, Wrongful Life—Essential Factual Elements, if the parents’ cause
of action for wrongful birth is joined with the child’s cause of action for wrongful
life.
In element 1, select the first option if the claim is that the defendant failed to
diagnose or warn the plaintiff of a possible genetic impairment. Select the second
option if the claim is that the defendant failed to order or advise of available genetic
testing. In a testing case, there is no causation unless the chances that the test would
disclose the impairment were at least 50 percent. (See Simmons v. West Covina
Medical Clinic (1989) 212 Cal.App.3d 696, 702–703 [260 Cal.Rptr. 772].)
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Sources and Authority
• “Claims for ‘wrongful life’ are essentially actions for malpractice based on
negligent genetic counseling and testing.” (Gami v. Mullikin Medical Center
(1993) 18 Cal.App.4th 870, 883 [22 Cal.Rptr.2d 819].) Since the wrongful life
action corresponds to the wrongful birth action, it is reasonable to conclude that
this principle applies to wrongful birth actions.
• Regarding wrongful-life actions, courts have observed: “[A]s in any medical
malpractice action, the plaintiff must establish: ‘(1) the duty of the professional
to use such skill, prudence, and diligence as other members of his profession
commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal
connection between the negligent conduct and the resulting injury; and (4) actual
loss or damage resulting from the professional’s negligence.’ ” (Gami, supra, 18
Cal.App.4th at p. 877.)
• The negligent failure to administer a test that had only a 20 percent chance of
detecting Down syndrome did not establish a reasonably probable causal
connection to the birth of a child with this genetic abnormality. (Simmons,
supra.)
• Both parent and child may recover damages to compensate for “the
extraordinary expenses necessary to treat the hereditary ailment.” (Turpin v.
Sortini (1982) 31 Cal.3d 220, 239 [182 Cal.Rptr. 337, 643 P.2d 954].)
• In wrongful-birth actions, parents are permitted to recover the medical expenses
incurred on behalf of a disabled child. The child may also recover medical
expenses in a wrongful-life action, though both parent and child may not recover
the same expenses. (Turpin, supra, 31 Cal.3d at pp. 238–239.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1112–1118
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.21–9.22
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)
457
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513. Wrongful Life—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun] failed to inform [name of plaintiff]’s parents of
the risk that [he/she/nonbinary pronoun] would be born [genetically
impaired/disabled]. To establish this claim, [name of plaintiff] must prove
all of the following:
[1. That [name of defendant] negligently failed to [diagnose/ [or] warn
[name of plaintiff]’s parents of] the risk that [name of plaintiff]
would be born with a [genetic impairment/disability];]
[1. [or]
[1. That [name of defendant] negligently failed to [perform
appropriate tests/advise [name of plaintiff]’s parents of tests] that
would more likely than not have disclosed the risk that [name of
plaintiff] would be born with a [genetic impairment/disability];]
2. That [name of plaintiff] was born with a [genetic
impairment/disability];
3. That if [name of plaintiff]’s parents had known of the risk of
[genetic impairment/disability], [his/her/nonbinary pronoun]
mother would not have conceived [him/her/nonbinary pronoun] [or
would not have carried the fetus to term]; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s parents to have to pay extraordinary
expenses for [name of plaintiff].
New September 2003; Revised April 2007, April 2008, November 2019
Directions for Use
The general medical negligence instructions on the standard of care and causation
(see CACI Nos. 500–502) may be used in conjunction with this instruction. Read
also CACI No. 512, Wrongful Birth—Essential Factual Elements, if the parents’
cause of action for wrongful birth is joined with the child’s cause of action for
wrongful life.
In element 1, select the first option if the claim is that the defendant failed to
diagnose or warn the plaintiff of a possible genetic impairment. Select the second
option if the claim is that the defendant failed to order or advise of available genetic
testing. In a testing case, there is no causation unless the chances that the test would
disclose the impairment were at least 50 percent. (See Simmons v. West Covina
Medical Clinic (1989) 212 Cal.App.3d 696, 702–703 [260 Cal.Rptr. 772].)
In order for this instruction to apply, the genetic impairment must result in a
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MEDICAL NEGLIGENCE CACI No. 513
physical or mental disability. This is implied by the fourth element in the
instruction.
Sources and Authority
• No Wrongful Life Claim Against Parent. Civil Code section 43.6(a).
• “[I]t may be helpful to recognize that although the cause of action at issue has
attracted a special name—‘wrongful life’—plaintiff’s basic contention is that her
action is simply one form of the familiar medical or professional malpractice
action. The gist of plaintiff’s claim is that she has suffered harm or damage as a
result of defendants’ negligent performance of their professional tasks, and that,
as a consequence, she is entitled to recover under generally applicable common
law tort principles.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229 [182 Cal.Rptr.
337, 643 P.2d 954].)
• “Claims for ‘wrongful life’ are essentially actions for malpractice based on
negligent genetic counseling and testing.” (Gami v. Mullikin Medical Center
(1993) 18 Cal.App.4th 870, 883 [22 Cal.Rptr.2d 819].)
• General damages are not available: “[W]e conclude that while a plaintiff-child in
a wrongful life action may not recover general damages for being born impaired
as opposed to not being born at all, the child—like his or her parents—may
recover special damages for the extraordinary expenses necessary to treat the
hereditary ailment.” (Turpin, supra, 31 Cal.3d at p. 239.)
• A child may not recover for loss of earning capacity in a wrongful-life action.
(Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614 [208 Cal.Rptr.
899].)
• The negligent failure to administer a test that had only a 20 percent chance of
detecting Down syndrome did not establish a reasonably probable causal
connection to the birth of a child with this genetic abnormality. (Simmons, supra,
212 Cal.App.3d at pp. 702–703)
• “Wrongful life claims are actions brought on behalf of children, while wrongful
birth claims refer to actions brought by parents. California courts do recognize a
wrongful life claim by an ‘impaired’ child for special damages (but not for
general damages), when the physician’s negligence is the proximate cause of the
child’s need for extraordinary medical care and training. No court, however, has
expanded tort liability to include wrongful life claims by children born without
any mental or physical impairment.” (Alexandria S. v. Pac. Fertility Medical Ctr.
(1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d 23], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1112–1123
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.21–9.22
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
459
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CACI No. 513 MEDICAL NEGLIGENCE
Malpractice, § 415.11 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.70 (Matthew
Bender)
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514. Duty of Hospital
A hospital is negligent if it does not use reasonable care toward its
patients. A hospital must provide procedures, policies, facilities, supplies,
and qualified personnel reasonably necessary for the treatment of its
patients.
[When you are deciding whether [name of defendant] was negligent, you
must base your decision only on the testimony of the expert witnesses
who have testified in this case.]
New September 2003
Directions for Use
This instruction may be augmented by CACI No. 515, Duty of Hospital to Provide
Safe Environment, and/or CACI No. 516, Duty of Hospital to Screen Medical Staff.
The second paragraph should be used unless the court determines that expert
testimony is not necessary to establish the standard of care.
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
This instruction is not intended if the hospital is being sued based on the negligence
of an agent or employee. See instructions in the Vicarious Responsibility series and
adapt accordingly.
Sources and Authority
• “[T]he duty imposed by law on the hospital is that it must exercise such
reasonable care toward a patient as his mental and physical condition, if known,
require . . . .” (Vistica v. Presbyterian Hospital & Medical Center, Inc. (1967)
67 Cal.2d 465, 469 [62 Cal.Rptr. 577, 432 P.2d 193].)
• “A private hospital owes its patients the duty of protection. It was the duty of
the hospital to use reasonable care and diligence in safeguarding a patient
committed to its charge [citations] and such care and diligence are measured by
the capacity of the patient to care for himself. By reason of the tender age of
appellant’s baby respondent owed a higher degree of care in attending it than if
she had been an adult.” (Thomas v. Seaside Memorial Hospital (1947) 80
Cal.App.2d 841, 847 [183 P.2d 288].)
• “It is the duty of any hospital that undertakes the treatment of an ill or wounded
person to use reasonable care and diligence not only in operating upon and
treating but also in safeguarding him, and such care and diligence is measured
by the capacity of the patient to care for himself.” (Valentin v. La Societe
Francaise de Bienfaisance Mutuelle (1946) 76 Cal.App.2d 1, 4 [172 P.2d 359].)
• “[T]he professional duty of a hospital . . . is primarily to provide a safe
environment within which diagnosis, treatment, and recovery can be carried out.
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CACI No. 514 MEDICAL NEGLIGENCE
Thus if an unsafe condition of the hospital’s premises causes injury to a patient
. . . there is a breach of the hospital’s duty qua hospital.” (Murillo v. Good
Samaritan Hospital (1979) 99 Cal.App.3d 50, 56–57 [160 Cal.Rptr. 33].)
• “Defendant . . . was under a duty to observe and know the condition of a
patient. Its business is caring for ill persons, and its conduct must be in
accordance with that of a person of ordinary prudence under the circumstances, a
vital part of those circumstances being the illness of the patient and incidents
thereof.” (Rice v. California Lutheran Hospital (1945) 27 Cal.2d 296, 302 [163
P.2d 860].)
• “If a hospital is obliged to maintain its premises and its instrumentalities for the
comfort of its patients with such care and diligence as will reasonably assure
their safety, it should be equally bound to observe the progress of a patient in his
recovery from a major operation with such care and diligence as his condition
reasonably requires for his comfort and safety and promptly to employ such
agencies as may reasonably appear necessary for the patient’s safety.” (Valentin,
supra, 76 Cal.App.2d at p. 5.)
• “No expert opinion is required to prove the hospital’s failure to provide an
adequate number of trained, qualified personnel at the most critical time in
postoperative care was negligent.” (Czubinsky v. Doctors Hospital (1983) 139
Cal.App.3d 361, 367 [188 Cal.Rptr. 685].)
• “A California civil jury instruction succinctly characterizes a hospital’s duty to
its patients as follows: ‘A hospital must provide procedures, policies, facilities,
supplies, and qualified personnel reasonably necessary for the treatment of its
patients.’ (CACI No. 514.) The instruction would appear to be an accurate
distillation of the case law applicable when patients are being treated at a
hospital facility for an illness, injury or medical condition.” (Walker v. Sonora
Regional Medical Center (2012) 202 Cal.App.4th 948, 960 [135 Cal.Rptr.3d
876].)
• “ ‘Present-day hospitals, as their manner of operation plainly demonstrates, do
far more than furnish facilities for treatment. They regularly employ on a salary
basis a large staff of physicians, nurses and internes [sic], as well as
administrative and manual workers, and they charge patients for medical care
and treatment, collecting for such services, if necessary, by legal action.
Certainly, the person who avails himself of ‘hospital facilities’ expects that the
hospital will attempt to cure him, not that its nurses or other employees will act
on their own responsibility.’ Although hospitals do not practice medicine in the
same sense as physicians, they do provide facilities and services in connection
with the practice of medicine, and if they are negligent in doing so they can be
held liable. Here, defendant hospital implicitly recognized that point when it
requested, and the trial court gave, this jury instruction: ‘A hospital must provide
procedures, policies, facilities, supplies, and qualified personnel reasonably
necessary for the treatment of its patients.’ ” (Leung v. Verdugo Hills Hospital
(2012) 55 Cal.4th 291, 310 [145 Cal.Rptr.3d 553, 282 P.3d 1250].)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1120
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-I, Negligence
Liability Based On Omission To Act—Legal Duty Arising From “Special
Relationship”, ¶¶ 2:1898–2:1925 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA Provisions
Affecting Damages, ¶¶ 3:282.11c, 3:282.11d (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.55–9.64
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.81 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13
(Matthew Bender)
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515. Duty of Hospital to Provide Safe Environment
If [name of defendant hospital] knew or reasonably should have known it
was likely that [name of patient] would harm [himself/herself/nonbinary
pronoun/another], then [name of defendant hospital] had to use reasonable
care to prevent such harm.
New September 2003
Directions for Use
Always read CACI No. 514, Duty of Hospital, in conjunction with this instruction.
Sources and Authority
• “When a patient is admitted into the care of a hospital, the hospital must
exercise reasonable care to protect that patient from harm.” (Walker v. Sonora
Regional Medical Center (2012) 202 Cal.App.4th 948, 959 [135 Cal.Rptr.3d
876].)
• “[T]he duty extends to safeguarding the patient from dangers due to mental
incapacity; and where the hospital has notice or knowledge of facts from which
it might reasonably be concluded that a patient would be likely to harm himself
or others unless preclusive measures were taken, then the hospital must use
reasonable care in the circumstances to prevent such harm.” (Vistica v.
Presbyterian Hospital & Medical Center, Inc. (1967) 67 Cal.2d 465, 469 [62
Cal.Rptr. 577, 432 P.2d 193].)
• “If those charged with the care and treatment of a mentally disturbed patient
know of facts from which they could reasonably conclude that the patient would
be likely to harm himself in the absence of preclusive measures, then they must
use reasonable care under the circumstances to prevent such harm.” (Meier v.
Ross General Hospital (1968) 69 Cal.2d 420, 424 [71 Cal.Rptr. 903, 445 P.2d
519].)
• “A rule more fitting to the facts of this case is expressed in Wood v. Samaritan
Institution (1945) 26 Cal.2d 847 [161 P.2d 556], where the California Supreme
Court held hospitals have a duty to be especially protective of their alcoholic
patients.” (Emerick v. Raleigh Hills Hospital (1982) 133 Cal.App.3d 575, 581
[184 Cal.Rptr. 92].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1120–1123
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.55–9.62
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.81 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13
(Matthew Bender)
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516. Duty of Hospital to Screen Medical Staff
A hospital is negligent if it does not use reasonable care to select and
periodically evaluate its medical staff so that its patients are provided
adequate medical care.
New September 2003
Directions for Use
Always read CACI No. 514, Duty of Hospital, in conjunction with this instruction.
Sources and Authority
• “[W]e hold a hospital is accountable for negligently screening the competency of
its medical staff to insure the adequacy of medical care rendered to patients at its
facility.” (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 346 [183
Cal.Rptr. 156].)
• “[A] hospital generally owes a duty to screen the competency of its medical staff
and to evaluate the quality of medical treatment rendered on its premises. Thus,
a hospital could be found liable for injury to a patient caused by the hospital’s
negligent failure ‘to insure the competence of its medical staff through careful
selection and review,’ thereby creating an unreasonable risk of harm to the
patient.” (Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th
948, 959–960 [135 Cal.Rptr.3d 876], internal citation omitted.)
• “The hospital has ‘a direct and independent responsibility to its patients of
insuring the competency of its medical staff and the quality of medical care
provided . . . .’ [Citation.] Hospitals must be able to establish high standards of
professional work and to maintain those standards through careful selection and
review of staff. And they are required to do so by both state and federal law.
[Citations.]” (Rhee v. El Camino Hospital Dist. (1988) 201 Cal.App.3d 477, 489
[247 Cal.Rptr. 244].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1120–1123
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.55–9.62
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.81 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13
(Matthew Bender)
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517. Affirmative Defense—Patient’s Duty to Provide for the
Patient’s Own Well-Being
A patient must use reasonable care to provide for the patient’s own well-
being. This includes a responsibility to [follow [a/an] [insert type of
medical practitioner]’s instructions/seek medical assistance] when a
reasonable person in the same situation would do so.
[Name of defendant] claims that [name of plaintiff]’s harm was caused, in
whole or in part, by [name of plaintiff]’s negligence in failing to [follow
[name of defendant]’s instructions/seek medical assistance]. To succeed,
[name of defendant] must prove both of the following:
1. That [name of plaintiff] did not use reasonable care in [following
[name of defendant]’s instructions/seeking medical assistance]; and
2. That [name of plaintiff]’s failure to [follow [name of defendant]’s
instructions/seek medical assistance] was a substantial factor in
causing [his/her/nonbinary pronoun] harm.
New September 2003; Revised December 2015, May 2020
Directions for Use
Read this instruction in conjunction with basic comparative fault and damages
instructions (CACI Nos. 405, 406, 407).
The defendant has the burden of proving that the plaintiff was comparatively
negligent and that this negligence was a cause of the harm. (Pfeifer v. John Crane,
Inc. (2013) 220 Cal.App.4th 1270, 1285 [164 Cal.Rptr.3d 112].)
Sources and Authority
• “It is error for a trial court to charge the jury with regard to contributory
negligence [for failure to follow doctor’s advice] when there is no expert
testimony the plaintiff was negligent.” (Bolen v. Woo (1979) 96 Cal.App.3d 944,
952 [158 Cal.Rptr. 454].)
• “[I]t is error in medical malpractice cases to [instruct on contributory negligence]
in the absence of some evidence that the injured patient’s acts or omissions were
a proximate cause of the harm sustained.” (LeMons v. Regents of University of
California (1978) 21 Cal.3d 869, 875 [148 Cal.Rptr. 355, 582 P.2d 946].)
• “Unquestionably the jury must have considered whether the attitude of
respondent was one of refusal to follow the advice of his physicians or was,
because of his extended experience, one of justifiable fear of want of their skill.
Whether such delays under the circumstances were those of a reasonably prudent
person determines the right of respondent to recover all of the special damages,
and the implied finding was that respondent was not arbitrary in not promptly
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acceding to each suggestion of an operation.” (Dodds v. Stellar (1946) 77
Cal.App.2d 411, 422 [175 P.2d 607].)
• “Negligence, in fact, may often explain why the patient, to begin with, needed
and sought out the physician’s assistance. The health care professional, in this
instance, takes the patient as he finds him. Other than in very rare cases, the
only legitimate application of the doctrine of contributory fault is when it takes
place concurrently with or after the delivery of the practitioner’s care and
treatment.” (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 632 [183
Cal.Rptr.3d 59].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.66
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.61 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.14
(Matthew Bender)
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518. Medical Malpractice: Res ipsa loquitur
[Name of plaintiff] may prove that [name of defendant]’s negligence caused
[his/her/nonbinary pronoun] harm if [he/she/nonbinary pronoun] proves all
of the following:
1. That [name of plaintiff]’s harm ordinarily would not have
occurred unless someone was negligent; [In deciding this issue,
you must consider [only] the testimony of the expert witnesses.]
2. That the harm occurred while [name of plaintiff] was under the
care and control of [name of defendant]; and
3. That [name of plaintiff]’s voluntary actions did not cause or
contribute to the event[s] that harmed [him/her/nonbinary
pronoun].
If you decide that [name of plaintiff] did not prove one or more of these
three things, then you must decide whether [name of defendant] was
negligent in light of the other instructions I have read.
If you decide that [name of plaintiff] proved all of these three things, you
may, but are not required to, find that [name of defendant] was negligent
or that [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm, or both.
[Name of defendant] contends that [he/she/nonbinary pronoun/it] was not
negligent or that [his/her/nonbinary pronoun/its] negligence, if any, did not
cause [name of plaintiff] harm. If after weighing all of the evidence you
believe that it is more probable than not that [name of defendant] was
negligent and that [his/her/nonbinary pronoun/its] negligence was a
substantial factor in causing [name of plaintiff]’s harm, you must decide
in favor of [name of plaintiff]. Otherwise, you must decide in favor of
[name of defendant].
New September 2003; Revised December 2011
Directions for Use
The first paragraph of this instruction sets forth the three elements of res ipsa
loquitur. The bracketed sentence in element 1 should be read only if expert
testimony is introduced. The word “only” within that sentence is to be used if the
court has determined that the issue of the defendant’s negligence involves matters
beyond common knowledge.
The second paragraph explains that if the plaintiff fails to establish res ipsa loquitur
as a presumption, the jury may still find for the plaintiff if it finds based on its
consideration of all of the evidence that the defendant was negligent. (See Howe v.
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Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163–1164 [117
Cal.Rptr.3d 126].)
If the plaintiff has established the three conditions that give rise to the doctrine, the
jury is required to find that the accident resulted from the defendant’s negligence
unless the defendant comes forward with evidence that would support a contrary
finding. (See Cal. Law Revision Com. comment to Evid. Code, § 646.) The last two
paragraphs of the instruction assume that the defendant has presented evidence that
would support a finding that the defendant was not negligent or that any negligence
on the defendant’s part was not a proximate cause of the accident. In this case, the
presumption drops out, and the plaintiff must then prove the elements of negligence
without the benefit of the presumption of res ipsa loquitur. (See Howe, supra, 189
Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res ipsa loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption arises
when the evidence satisfies three conditions: ‘ “(1) the accident must be of a
kind which ordinarily does not occur in the absence of someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive
control of the defendant; (3) it must not have been due to any voluntary action
or contribution on the part of the plaintiff.” ’ A presumption affecting the burden
of producing evidence ‘require[s] the trier of fact to assume the existence of the
presumed fact’ unless the defendant introduces evidence to the contrary. The
presumed fact, in this context, is that ‘a proximate cause of the occurrence was
some negligent conduct on the part of the defendant. . . .’ If the defendant
introduces ‘evidence which would support a finding that he was not negligent or
that any negligence on his part was not a proximate cause of the occurrence,’ the
trier of fact determines whether defendant was negligent without regard to the
presumption, simply by weighing the evidence.” (Brown v. Poway Unified School
Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679, 843 P.2d 624], internal
citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was the
result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p.
1161, internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
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negligence from the happening of the accident.” (Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
• “All of the cases hold, in effect, that it must appear, either as a matter of
common experience or from evidence in the case, that the accident is of a type
which probably would not happen unless someone was negligent.” (Zentz v.
Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442–443 [247 P.2d
344].)
• “In determining the applicability of res ipsa loquitur, courts have relied on both
expert testimony and common knowledge. The standard of care in a professional
negligence case can be proved only by expert testimony unless the conduct
required by the particular circumstances is within the common knowledge of the
layperson.” (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943 [54 Cal.Rptr.2d
209], internal citations omitted.)
• “Under the doctrine of res ipsa loquitur and this common knowledge exception,
it is proper to instruct the jury that it can infer negligence from the happening of
the accident itself, if it finds based on common knowledge, the testimony of
physicians called as expert witnesses, and all the circumstances, that the injury
was more likely than not the result of negligence.” (Gannon v. Elliot (1993) 19
Cal.App.4th 1, 6 [23 Cal.Rptr.2d 86], internal citation omitted.)
• “The fact that a particular injury rarely occurs does not in itself justify an
inference of negligence unless some other evidence indicates negligence. To
justify res ipsa loquitur instructions, appellant must have produced sufficient
evidence to permit the jury to make the necessary decision. He must have
presented ‘some substantial evidence which, if believed by the jury, would
entitle it to draw an inference of negligence from the happening of the accident
itself.’ ” (Blackwell, supra, 46 Cal.App.4th at p. 944, internal citations omitted.)
• The purpose of the second “control” requirement is to “link the defendant with
the probability, already established, that the accident was negligently caused.”
(Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d
33].) The control requirement is not absolute. (Zentz, supra, 39 Cal.2d at p. 443.)
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintiff need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” (Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
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affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of negligence
or lack of proximate cause that the injury claimed was the result of that
negligence. As a presumption affecting the burden of producing evidence (as
distinguished from a presumption affecting the burden of proof), if evidence is
presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of the
accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of the
presumed fact causes the presumption, as a matter of law, to disappear.’ When
the presumptive effect vanishes, it is the plaintiff’s burden to introduce actual
evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
jury may be instructed that, even though it does not find that the facts giving rise
to the presumption have been proved by a preponderance of the evidence, it may
nevertheless find the defendant negligent if it concludes from a consideration of
all the evidence that it is more probable than not that the defendant was
negligent.’ ” (Howe, supra, 189 Cal.App.4th at p. 1163, internal citation
omitted.)
• “It follows that where part of the facts basic to the application of the doctrine of
res ipsa loquitur is established as a matter of law but that others are not, the
court should instruct that application of the doctrine by the jury depends only
upon the existence of the basic facts not conclusively established.” (Rimmele v.
Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr.
39].)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§§ 116–120
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
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Malpractice, § 415.11[2] (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.50
(Matthew Bender)
519–530. Reserved for Future Use
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530A. Medical Battery
[Name of plaintiff] claims that [name of defendant] committed a medical
battery. To establish this claim, [name of plaintiff] must prove all of the
following:
1. [That [name of defendant] performed a medical procedure without
[name of plaintiff]’s consent; [or]]
1. [That [name of plaintiff] consented to one medical procedure, but
[name of defendant] performed a substantially different medical
procedure;]
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
A patient can consent to a medical procedure by words or conduct.
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Select either or both of the two bracketed options in the first element depending on
the nature of the case. In a case of a conditional consent in which it is alleged that
the defendant proceeded without the condition having occurred, give CACI No.
530B, Medical Battery—Conditional Consent.
Sources and Authority
• “The California Supreme Court has described the right to consent to medical
treatment as ‘ “basic and fundamental,” ’ ‘intensely individual,’ and ‘broadly
based.’ The same court has also emphasized that excusing the patient from a
judicial proceeding regarding a surgery to be performed over his objection
‘denie[s] fundamental due process.’ It is immaterial that a doctor has said the
treatment is required to save the patient’s life. Rather, ‘ “A doctor might well
believe that an operation or form of treatment is desirable or necessary, but the
law does not permit him to substitute his own judgment for that of the patient by
any form of artifice or deception.” ’ Finally, the patient’s reasons for refusing are
irrelevant. ‘For self-determination to have any meaning, it cannot be subject to
the scrutiny of anyone else’s conscience or sensibilities.’ ” (Stewart v. Superior
Court (2017) 16 Cal.App.5th 87, 105 [224 Cal.Rptr.3d 219], internal citations
omitted.)
• Battery may also be found if a substantially different procedure is performed:
“Where a doctor obtains consent of the patient to perform one type of treatment
and subsequently performs a substantially different treatment for which consent
was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8
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Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “The battery theory should be reserved for those circumstances when a doctor
performs an operation to which the patient has not consented. When the patient
gives permission to perform one type of treatment and the doctor performs
another, the requisite element of deliberate intent to deviate from the consent
given is present. However, when the patient consents to certain treatment and the
doctor performs that treatment but an undisclosed inherent complication with a
low probability occurs, no intentional deviation from the consent given appears;
rather, the doctor in obtaining consent may have failed to meet his due care duty
to disclose pertinent information. In that situation the action should be pleaded in
negligence.” (Cobbs, supra, 8 Cal.3d at p. 240.)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent—which
sounds in negligence—arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71
Cal.Rptr.3d 469].)
• “Confusion may arise in the area of ‘exceeding a patient’s consent.’ In cases
where a doctor exceeds the consent and such excess surgery is found necessary
due to conditions arising during an operation which endanger the patient’s health
or life, the consent is presumed. The surgery necessitated is proper (though
exceeding specific consent) on the theory of assumed consent, were the patient
made aware of the additional need.” (Pedesky v. Bleiberg (1967) 251 Cal.App.2d
119, 123 [59 Cal.Rptr. 294].)
• “Consent to medical care, including surgery, may be express or may be implied
from the circumstances.” (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454
[30 Cal.Rptr. 243].)
• “It is elemental that consent may be manifested by acts or conduct and need not
necessarily be shown by a writing or by express words.” (Kritzer v. Citron
(1950) 101 Cal.App.2d 33, 38–39 [224 P.2d 808].)
• “[T]he reason why CACI No. 530B has an explicit intent and knowledge
requirement and CACI No. 530A does not is clear. The law presumes that
‘[w]hen the patient gives permission to perform one type of treatment and the
doctor performs another, the requisite element of deliberate intent to deviate
from the consent given is present.’ That situation is covered by CACI No.
530A.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d
559], internal citation omitted.)
• “In the absence of any definitive case law establishing whether operating on the
wrong disk within inches of the correct disk is a ‘substantially different
procedure,’ we conclude the matter is a factual question for a finder of fact to
decide and at least in this instance, not one capable of being decided on
demurrer.” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647 [75
Cal.Rptr.3d 861.)
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• “Although . . . consent to surgery necessarily encompasses consent to
postoperative care, not all postoperative contact between doctor and patient
constitutes care. The question of the nature of the contact between plaintiff and
[defendant], and whether that contact was within the scope of plaintiff’s consent,
is a factual question for a finder of fact to decide.” (So v. Shin (2013) 212
Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257], original italics.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 459–1635
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶ 3:1394 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA Provisions
Affecting Damages, ¶ 3:1883–3:1885 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11–9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
(Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.28 et seq. (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
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530B. Medical Battery—Conditional Consent
[Name of plaintiff] claims that [name of defendant] committed a medical
battery. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] consented to a medical procedure, but
only on the condition that [describe what had to occur before
consent would be given];
2. That [name of defendant] proceeded without this condition having
occurred;
3. That [name of defendant] intended to perform the procedure with
knowledge that the condition had not occurred;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
A patient can consent to a medical procedure by words or conduct.
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Give this instruction in a case of a conditional consent in which it is alleged that the
defendant proceeded without the condition having occurred. If the claim is that the
defendant proceeded without any consent or deviated from the consent given, give
CACI No. 530A, Medical Battery.
Sources and Authority
• Battery may also be found if a conditional consent is violated: “[I]t is well
recognized a person may place conditions on the consent. If the actor exceeds
the terms or conditions of the consent, the consent does not protect the actor
from liability for the excessive act.” (Ashcraft v. King (1991) 228 Cal.App.3d
604, 610 [278 Cal.Rptr. 900].)
• Battery is an intentional tort. Therefore, a claim for battery against a doctor as a
violation of conditional consent requires proof that the doctor intentionally
violated the condition placed on the patient’s consent. (Piedra v. Dugan (2004)
123 Cal.App.4th 1483, 1498 [21 Cal.Rptr.3d 36], internal citations omitted.)
• “[T]he reason why CACI No. 530B has an explicit intent and knowledge
requirement and CACI No. 530A does not is clear. The law presumes that
‘[w]hen the patient gives permission to perform one type of treatment and the
doctor performs another, the requisite element of deliberate intent to deviate
from the consent given is present.’ That situation is covered by CACI No. 530A.
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On the other hand, in a case involving conditional consent, the requisite element
of deliberate intent to deviate from the consent given cannot be presumed simply
from the act itself. This is because if the intent element is not explicitly stated in
the instruction, it would be possible for a jury (incorrectly) to find a doctor liable
for medical battery even if it believed the doctor negligently forgot about the
condition precedent.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94
Cal.Rptr.3d 559], internal citation omitted.)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent—which
sounds in negligence—arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71
Cal.Rptr.3d 469].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 459–740
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11–9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.25 (Matthew
Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.28 et seq. (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
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531. Consent on Behalf of Another
In this case [name of patient] could not consent to the [insert medical
procedure] because [he/she/nonbinary pronoun] was [insert reason—e.g., a
minor/incompetent/unconscious]. In this situation, the law allows [name of
authorized person] to give consent on behalf of [name of patient].
You must decide whether [name of authorized person] consented to the
[insert medical procedure] performed on [name of patient].
New September 2003
Sources and Authority
• Parent Delegation of Right to Authorize Medical Care. Family Code section
6910.
• “If the patient is a minor or incompetent, the authority to consent is transferred
to the patient’s legal guardian or closest available relative.” (Cobbs v. Grant
(1972) 8 Cal.3d 229, 244 [104 Cal.Rptr. 505, 502 P.2d 1]; Farber v. Olkon
(1953) 40 Cal.2d 503, 509 [254 P.2d 520].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 460, 463
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
32 California Forms of Pleading and Practice, Ch. 365, Minors: Contract Actions,
§ 365.13; Ch. 366, Minors: Court Consent for Medical Care or Enlistment, § 366.10
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 394, Parent and Child, § 394.54
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
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532. Informed Consent—Definition
A patient’s consent to a medical procedure must be “informed.” A
patient gives an “informed consent” only after the [insert type of medical
practitioner] has adequately explained the proposed treatment or
procedure.
[A/An] [insert type of medical practitioner] must explain the likelihood of
success and the risks of agreeing to a medical procedure in language that
the patient can understand. [A/An] [insert type of medical practitioner]
must give the patient as much information as [he/she/nonbinary pronoun]
needs to make an informed decision, including any risk that a reasonable
person would consider important in deciding to have the proposed
treatment or procedure, and any other information skilled practitioners
would disclose to the patient under the same or similar circumstances.
The patient must be told about any risk of death or serious injury or
significant potential complications that may occur if the procedure is
performed. [A/An] [insert type of medical practitioner] is not required to
explain minor risks that are not likely to occur.
New September 2003; Revised December 2005, October 2008, June 2014
Directions for Use
This instruction should be read in conjunction with CACI No. 533, Failure to
Obtain Informed Consent—Essential Factual Elements. Do not give this instruction
with CACI No. 530A, Medical Battery, or CACI No. 530B, Medical
Battery—Conditional Consent. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316,
324 [71 Cal.Rptr.3d 469].)
If the patient is a minor or is incapacitated, tailor the instruction accordingly. If a
medical practitioner knows or should know of a patient’s unique concerns or lack of
familiarity with medical procedures, this knowledge may expand the scope of
required disclosures and require additional instructional language. (See Truman v.
Thomas (1980) 27 Cal.3d 285, 291 [165 Cal.Rptr. 308, 611 P.2d 902].)
Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority
• “From the foregoing axiomatic ingredients emerges a necessity, and a resultant
requirement, for divulgence by the physician to his patient of all information
relevant to a meaningful decisional process.” (Cobbs v. Grant (1972) 8 Cal.3d
229, 242 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “ ‘[A] physician has a fiduciary duty to disclose all information material to the
patient’s decision,’ when soliciting a patient’s consent to a medical procedure. A
cause of action premised on a physician’s breach of this fiduciary duty may
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alternatively be referred to as a claim for lack of informed consent.” (Jameson v.
Desta (2013) 215 Cal.App.4th 1144, 1164 [155 Cal.Rptr.3d 755], internal
citations omitted.)
• “When a doctor recommends a particular procedure then he or she must disclose
to the patient all material information necessary to the decision to undergo the
procedure, including a reasonable explanation of the procedure, its likelihood of
success, the risks involved in accepting or rejecting the proposed procedure, and
any other information a skilled practitioner in good standing would disclose to
the patient under the same or similar circumstances.” (Mathis v. Morrissey
(1992) 11 Cal.App.4th 332, 343 [13 Cal.Rptr.2d 819].)
• “A physician has a duty to inform a patient in lay terms of the dangers
inherently and potentially involved in a proposed treatment.” (McKinney v. Nash
(1981) 120 Cal.App.3d 428, 440 [174 Cal.Rptr. 642].)
• “First, a physician must disclose to the patient the potential of death, serious
harm, and other complications associated with a proposed procedure. Second,
‘[b]eyond the foregoing minimal disclosure, a doctor must also reveal to his
patient such additional information as a skilled practitioner of good standing
would provide under similar circumstances.’ ” (Cobbs, supra, 8 Cal.3d at p. 244,
internal citations omitted.)
• “Material information is that which the physician knows or should know would
be regarded as significant by a reasonable person in the patient’s position when
deciding to accept or reject the recommended medical procedure. To be material,
a fact must also be one which is not commonly appreciated. If the physician
knows or should know of a patient’s unique concerns or lack of familiarity with
medical procedures, this may expand the scope of required disclosure.” (Truman,
supra, 27 Cal.3d at p. 291, internal citations omitted.)
• “Obviously involved in the equation of materiality are countervailing factors of
the seriousness and remoteness of the dangers involved in the medical procedure
as well as the risks of a decision not to undergo the procedure.” (McKinney,
supra, 120 Cal.App.3d at p. 441.)
• “Where a shoulder is injured in an appendectomy, or a clamp is left in the
abdomen, expert testimony is not required since the jury is capable of
appreciating and evaluating the significance of such events. However, when a
doctor relates the facts he has relied upon in support of his decision to operate,
and where the facts are not commonly susceptible of comprehension by a lay
juror, medical expert opinion is necessary to enable the trier of fact to determine
if the circumstances indicated a need for surgery.” (Cobbs, supra, 8 Cal.3d at p.
236, internal citations omitted.)
• “We underline the limited and essentially subsidiary role of expert testimony in
informed consent litigation. . . . [A] rule that filters the scope of patient
disclosure entirely through the standards of the medical community ‘ “arrogate[s]
the decision [of what to disclose] . . . to the physician alone.” ’ We explicitly
rejected such an absolute rule as inimical to the rationale and objectives of the
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informed consent doctrine; we reaffirm that position. Nevertheless, . . . there
may be a limited number of occasions in the trial of informed consent claims
where the adequacy of disclosure in a given case may turn on the standard of
practice within the relevant medical community. In such instances, expert
testimony will usually be appropriate.” (Arato v. Avedon (1993) 5 Cal.4th 1172,
1191 [23 Cal.Rptr.2d 131, 858 P.2d 598], internal citation omitted.)
• “[A] physician must disclose personal interests unrelated to the patient’s health,
whether research or economic, that may affect the physician’s professional
judgment.” (Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 129 [271
Cal.Rptr. 146, 793 P.2d 479], cert. denied, 499 U.S. 936 (1991).)
• “While . . . there is no general duty of disclosure with respect to
nonrecommended procedures, we do not conclude . . . that there can never be
such a duty. In an appropriate case there may be evidence that would support the
conclusion that a doctor should have disclosed information concerning a
nonrecommended procedure.” (Vandi v. Permanente Medical Group, Inc. (1992)
7 Cal.App.4th 1064, 1071 [9 Cal.Rptr.2d 463].)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent—which
sounds in negligence—arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Saxena, supra, 159 Cal.App.4th at p. 324.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.41 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew
Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.28 (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
481
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533. Failure to Obtain Informed Consent—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun] performed [a/an] [insert medical procedure] on
[name of plaintiff] without first obtaining [his/her/nonbinary pronoun]
informed consent. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of defendant] performed [a/an] [insert medical
procedure] on [name of plaintiff];
2. That [name of defendant] did not disclose to [name of plaintiff] the
important potential results and risks of[and alternatives to] the
[insert medical procedure];
3. That a reasonable person in [name of plaintiff]’s position would
not have agreed to the [insert medical procedure] if that person
had been adequately informed; and
4. That [name of plaintiff] was harmed by a result or risk that [name
of defendant] should have explained.
New September 2003; Revised June 2014, May 2020
Directions for Use
This instruction should be read in conjunction with CACI No. 532, Informed
Consent—Definition. See also the Directions for Use and Sources and Authority to
that instruction.
If the patient is a minor or is incapacitated, tailor the instruction accordingly.
Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority
• “[W]hen there is a more complicated procedure, . . . the jury should be
instructed that when a given procedure inherently involves a known risk of death
or serious bodily harm, a medical doctor has a duty to disclose to his patient the
potential of death or serious harm, and to explain in lay terms the complications
that might possibly occur. Beyond the foregoing minimal disclosure, a doctor
must also reveal to his patient such additional information as a skilled
practitioner of good standing would provide under similar circumstances.”
(Cobbs v. Grant (1972) 8 Cal.3d 229, 244–245 [104 Cal.Rptr. 505, 502 P.2d 1],
internal citations omitted.)
• “There must be a causal relationship between the physician’s failure to inform
and the injury to the plaintiff. Such causal connection arises only if it is
established that had revelation been made consent to treatment would not have
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been given.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• “[T]he ‘burden of going forward’ is different from the ‘burden of proof,’ and the
burden of proof always remains with the plaintiff. Indeed, the only time the
burden of proof on informed consent shifts to the defendant-physician is after
the plaintiff has carried her burden of showing the nondisclosure of material
information and when the defendant-physician is attempting to prove that ‘even
though a reasonably prudent person might not have undergone the procedure if
properly informed of the perils, this particular plaintiff still would have
consented to the procedure.’ ” (Flores v. Liu (2021) 60 Cal.App.5th 278, 298
[274 Cal.Rptr.3d 444], original italics, internal citations omitted.)
• “[E]ven though a physician has no general duty of disclosure with respect to
nonrecommended procedures, he nevertheless must make such disclosures as are
required for competent practice within the medical community.” (Vandi v.
Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9
Cal.Rptr.2d 463].)
• “The patient-plaintiff may testify on this subject but the issue extends beyond his
credibility. Since at the time of trial the uncommunicated hazard has
materialized, it would be surprising if the patient-plaintiff did not claim that had
he been informed of the dangers he would have declined treatment. Subjectively
he may believe so, with the 20/20 vision of hindsight, but we doubt that justice
will be served by placing the physician in jeopardy of the patient’s bitterness and
disillusionment. Thus an objective test is preferable: i.e., what would a prudent
person in the patient’s position have decided if adequately informed of all
significant perils.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• “[T]he objective test required of the plaintiff does not prevent the defendant-
physician from showing, by way of defense, that even though a reasonably
prudent person might not have undergone the procedure if properly informed of
the perils, this particular plaintiff still would have consented to the procedure.”
(Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1206 [67 Cal.Rptr.2d 573],
original italics.)
• “[A]n action for failure to obtain informed consent lies where ‘an undisclosed
inherent complication . . . occurs,’ not where a disclosed complication occurs.”
(Warren, supra, 57 Cal.App.4th at p. 1202, original italics, internal citation
omitted.)
• “[Plaintiff] is entitled to recover not only for the undisclosed complications, but
also for the disclosed complications, because she would not have consented to
either surgery had the true risk been disclosed, and therefore would not have
suffered either category of complications.” (Warren, supra, 57 Cal.App.4th at p.
1195.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
483
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CACI No. 533 MEDICAL NEGLIGENCE
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.23 et seq.
(Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.23,
175.29 (Matthew Bender)
484
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534. Informed Refusal—Definition
[A/An] [insert type of medical practitioner] must explain the risks of
refusing a procedure in language that the patient can understand and
give the patient as much information as [he/she/nonbinary pronoun] needs
to make an informed decision, including any risk that a reasonable
person would consider important in deciding not to have [a/an] [insert
medical procedure]. The patient must be told about any risk of death or
serious injury or significant potential complications that may occur if the
procedure is refused. [A/An] [insert type of medical practitioner] is not
required to explain minor risks that are not likely to occur.
New September 2003
Directions for Use
This instruction should be read in conjunction with CACI No. 535, Risks of
Nontreatment—Essential Factual Elements.
If the patient is a minor or is incapacitated, tailor the instruction accordingly.
Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority
• The definition of “informed consent” in Cobbs v. Grant (1972) 8 Cal.3d 229
[104 Cal.Rptr. 505, 502 P.2d 1] applies “whether the procedure involves
treatment or a diagnostic test.” (Truman v. Thomas (1980) 27 Cal.3d 285, 292
[165 Cal.Rptr. 308, 611 P.2d 902].)
• In Truman, “the high court extended the duty to make disclosure to include
recommended diagnostic as well as therapeutic procedures and to include
situations in which the patient declines the recommended procedure.” (Vandi v.
Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1069 [9
Cal.Rptr.2d 463].) This has been termed the “informed refusal” doctrine.
(Townsend v. Turk (1990) 218 Cal.App.3d 278, 284 [266 Cal.Rptr. 821].)
• “In a nutshell, a doctor has a duty to disclose all material information to his
patient which will enable that patient to make an informed decision regarding
the taking or refusal to take such a test.” (Moore v. Preventive Medicine Medical
Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471, 475, 477,
478, 480, 481
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.12
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
485
Copyright Judicial Council of California
CACI No. 534 MEDICAL NEGLIGENCE
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.23 (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
486
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535. Risks of Nontreatment—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun] did not adequately inform [name of plaintiff]
about the risks of refusing the [insert medical procedure]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] did not perform the [insert medical
procedure] on [name of plaintiff];
2. That [name of defendant] did not disclose to [name of plaintiff] the
important potential risks of refusing the [insert medical
procedure];
3. That a reasonable person in [name of plaintiff]’s position would
have agreed to the [insert medical procedure] if that person had
been adequately informed about these risks; and
4. That [name of plaintiff] was harmed by the failure to have the
[insert medical procedure] performed.
New September 2003; Revised June 2014, May 2020
Directions for Use
This instruction presents the “informed refusal” doctrine. (See Townsend v. Turk
(1990) 218 Cal.App.3d 278, 284 [266 Cal.Rptr. 821].) It should be given with CACI
No. 534, Informed Refusal—Definition.
If the patient is a minor or is incapacitated, tailor the instruction accordingly.
Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority
• “Applying these principles, the court in Cobbs [Cobbs v. Grant (1972) 8 Cal.3d
229, 243 [104 Cal.Rptr. 505, 502 P.2d 1]] stated that a patient must be apprised
not only of the ‘risks inherent in the procedure [prescribed, but also] the risks of
a decision not to undergo the treatment, and the probability of a successful
outcome of the treatment.’ This rule applies whether the procedure involves
treatment or a diagnostic test. On the one hand, a physician recommending a
risk-free procedure may safely forego discussion beyond that necessary to
conform to competent medical practice and to obtain the patient’s consent. If a
patient indicates that he or she is going to decline the risk-free test or treatment,
then the doctor has the additional duty of advising of all material risks of which
a reasonable person would want to be informed before deciding not to undergo
the procedure. On the other hand, if the recommended test or treatment is itself
risky, then the physician should always explain the potential consequences of
declining to follow the recommended course of action.” (Truman v. Thomas
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CACI No. 535 MEDICAL NEGLIGENCE
(1980) 27 Cal.3d 285, 292 [165 Cal.Rptr. 308, 611 P.2d 902], internal citations
omitted.)
• “The duty of reasonable disclosure was expanded in Truman v. Thomas [supra].
There, a doctor recommended that his patient undergo a risk-free diagnostic
procedure but failed to advise her of the risks involved in the failure to follow
his recommendation. The Supreme Court concluded that for a patient to make an
informed choice to decline a recommended procedure the patient must be
adequately advised of the risks of refusing to undergo the procedure. Thus, the
high court extended the duty to make disclosure to include recommended
diagnostic as well as therapeutic procedures and to include situations in which
the patient declines the recommended procedure.” (Vandi v. Permanente Medical
Group, Inc. (1992) 7 Cal.App.4th 1064, 1069 [9 Cal.Rptr.2d 463].)
• “In a nutshell, a doctor has a duty to disclose all material information to his
patient which will enable that patient to make an informed decision regarding
the taking or refusal to take such a test.” (Moore v. Preventive Medicine Medical
Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 471, 475, 477,
480, 481
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.12
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[2] (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.33 (Matthew Bender)
536–549. Reserved for Future Use
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Copyright Judicial Council of California
550. Affirmative Defense—Plaintiff Would Have Consented
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for [name of plaintiff]’s harm because [name of plaintiff] would
have consented to the procedure, even if [he/she/nonbinary pronoun] had
been informed of the risks. To establish this defense, [name of defendant]
must prove that had [name of plaintiff] been adequately informed about
the risks of the [insert medical procedure], [he/she/nonbinary pronoun]
would have consented, even if a reasonable person in [name of plaintiff]’s
position might not have consented.
New September 2003; Revised June 2015, May 2020
Directions for Use
Give this instruction if the defendant asserts as an affirmative defense that the
plaintiff would have consented (and thereby would have suffered the same harm)
had the plaintiff been informed of the risks. This instruction can be modified to
cover “informed refusal” cases by redrafting it to state, in substance, that even if the
plaintiff had known of the risks of refusal, the plaintiff still would have refused the
test.
Sources and Authority
• “Whenever appropriate, the court should instruct the jury on the defenses
available to a doctor who has failed to make the disclosure required by law.”
(Cobbs v. Grant (1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “The patient-plaintiff may testify on this subject but the issue extends beyond his
credibility. Since at the time of trial the uncommunicated hazard has
materialized, it would be surprising if the patient-plaintiff did not claim that had
he been informed of the dangers he would have declined treatment. Subjectively
he may believe so, with the 20/20 vision of hindsight, but we doubt that justice
will be served by placing the physician in jeopardy of the patient’s bitterness and
disillusionment. Thus an objective test is preferable: i.e., what would a prudent
person in the patient’s position have decided if adequately informed of all
significant perils.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• “The prudent person test for causation was established to protect defendant
physicians from the unfairness of having a jury consider the issue of proximate
cause with the benefit of the ‘20/20 vision of hindsight . . .’ This standard
should not be employed to prevent a physician from raising the defense that
even given adequate disclosure the injured patient would have made the same
decision, regardless of whether a reasonably prudent person would have decided
differently if adequately informed.” (Truman v. Thomas (1980) 27 Cal.3d 285,
294 fn. 5 [165 Cal. Rptr. 308, 611 P.2d 902].)
489
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CACI No. 550 MEDICAL NEGLIGENCE
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 469
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
490
Copyright Judicial Council of California
551. Affirmative Defense—Waiver
[Name of defendant] claims that [he/she/nonbinary pronoun] did not have
to inform [name of patient] of the risks of the [insert medical procedure]
because [name of patient] asked not to be told of the risks.
If [name of defendant] has proved that [name of patient] told [him/her/
nonbinary pronoun] that [he/she/nonbinary pronoun] did not want to be
informed of the risks of the [insert medical procedure], then you must
conclude that [name of defendant] was not negligent in failing to inform
[name of patient] of the risks.
New September 2003; Revised May 2020
Directions for Use
“Whenever appropriate, the court should instruct the jury on the defenses available
to a doctor who has failed to make the disclosure required by law.” (Cobbs v. Grant
(1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].) This instruction could be
modified to cover “informed refusal” cases by redrafting it to state, in substance,
that the plaintiff indicated that the plaintiff did not want to be informed of the risks
of refusing the test.
Sources and Authority
• “[A] medical doctor need not make disclosure of risks when the patient requests
that he not be so informed.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• This defense is considered a “justification.” Justification for failure to disclose is
an affirmative defense on which the defendant has the burden of proof. (Mathis
v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn. 9 [13 Cal.Rptr.2d 819].)
• In Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1083–1084 [91
Cal.Rptr. 319], the court held that it was not error for the court to refuse an
instruction on informed consent where the evidence showed that the doctor’s
attempt to explain the medical procedure was prevented by the plaintiff’s
insistence on remaining ignorant of the risks involved.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 469
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
491
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552. Affirmative Defense—Simple Procedure
[Name of defendant] claims that [he/she/nonbinary pronoun] did not have
to inform [name of plaintiff] of the risks of [a/an] [insert medical
procedure]. [A/An] [insert type of medical practitioner] is not required to
tell a patient about the dangers of a simple procedure if it is commonly
understood that the dangers are not likely to occur.
If [name of defendant] has proved that [a/an] [insert medical procedure] is
a simple procedure, and that it is commonly understood that any
dangers are not likely to occur, then [name of defendant] was not required
to inform [name of plaintiff] of the risks.
New September 2003; Revised June 2014
Directions for Use
The court should instruct the jury on the defenses available to a doctor who has
failed to make the disclosure required by law. (Cobbs v. Grant (1972) 8 Cal.3d 229,
245 [104 Cal.Rptr. 505, 502 P.2d 1].) This instruction could be modified to cover
“informed refusal” cases (see CACI No. 534, Informed Refusal—Definition, and
CACI No. 535, Risks of Nontreatment—Essential Factual Elements) by redrafting it
to state, in substance, that the risks of refusing the test were commonly understood
to be unlikely to occur.
Sources and Authority
• “[D]isclosure need not be made if the procedure is simple and the danger remote
and commonly appreciated to be remote.” (Cobbs, supra, 8 Cal.3d at p. 245.)
• “[T]here is no physician’s duty to discuss the relatively minor risks inherent in
common procedures, when it is common knowledge that such risks inherent in
the procedure are of very low incidence.” (Cobbs, supra, 8 Cal.3d at p. 244.)
• “We note that under our law justification is regarded as an affirmative defense
and that the defendant normally bears the burden of proof with respect to
affirmative defenses.” (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn.
9 [13 Cal.Rptr.2d 819].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 469
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
492
Copyright Judicial Council of California
MEDICAL NEGLIGENCE CACI No. 552
Malpractice, § 415.13 (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
493
Copyright Judicial Council of California
553. Affirmative Defense—Emotional State of Patient
[Name of defendant] claims that [he/she/nonbinary pronoun] did not have
to inform [name of plaintiff] of the risks of the [insert medical procedure].
[A/An] [insert type of medical practitioner] does not have to provide
information about risks if the information will so seriously upset the
patient that the patient will not be able to reasonably consider the risks
of refusing to have the medical procedure.
If [name of defendant] has proved that [name of plaintiff] would have been
so seriously upset by being told of the risks that [he/she/nonbinary
pronoun] would not have been able to reasonably consider the risks of
refusing to have the [insert medical procedure], then [name of defendant]
was not required to inform [name of plaintiff] of the risks.
New September 2003
Directions for Use
“Whenever appropriate, the court should instruct the jury on the defenses available
to a doctor who has failed to make the disclosure required by law.” (Cobbs v. Grant
(1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].) This instruction could be
modified to cover “informed refusal” cases by redrafting it to state, in substance,
that the information regarding the risks of refusing the test would have seriously
upset the patient.
Sources and Authority
• “A disclosure need not be made beyond that required within the medical
community when a doctor can prove by a preponderance of the evidence he
relied upon facts which would demonstrate to a reasonable man the disclosure
would have so seriously upset the patient that the patient would not have been
able to dispassionately weigh the risks of refusing to undergo the recommended
treatment.” (Cobbs, supra, 8 Cal.3d at p. 246.)
• This defense is considered a “justification.” Justification for failure to disclose is
an affirmative defense on which the defendant has the burden of proof. (Mathis
v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn. 9 [13 Cal.Rptr.2d 819].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 466, 469
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons (Matthew
494
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MEDICAL NEGLIGENCE CACI No. 553
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
495
Copyright Judicial Council of California
554. Affirmative Defense—Emergency
[Name of defendant] claims that [he/she/nonbinary pronoun] did not have
to obtain [name of patient/authorized person]’s informed consent to the
[insert medical procedure] because an emergency existed. To succeed,
[name of defendant] must prove both of the following:
1. That [name of defendant] reasonably believed the [insert medical
procedure] had to be done immediately in order to preserve the
life or health of [name of patient]; and
2. That [insert one or more of the following:]
2. [[name of patient] was unconscious] [or]
2. [there was not enough time to inform [name of patient]] [or]
2. [there was not enough time to get consent from an authorized
person].
New September 2003
Directions for Use
“Whenever appropriate, the court should instruct the jury on the defenses available
to a doctor who has failed to make the disclosure required by law.” (Cobbs v. Grant
(1972) 8 Cal.3d 229, 245 [104 Cal.Rptr. 505, 502 P.2d 1].) This instruction could be
modified to cover “informed refusal” cases by redrafting it to state, in substance,
that the emergency situation made it impossible to inform the patient regarding the
risks of refusing the test.
Sources and Authority
• When Consent Not Required. Business and Professions Code sections 2397(a)
(doctor), 1627.7(a) (dentist).
• Consent is implied in an emergency situation. (Cobbs, supra, 8 Cal.3d at p.
243.)
• This defense is considered a “justification.” Justification for failure to disclose is
an affirmative defense on which the defendant has the burden of proof. (Mathis
v. Morrissey (1992) 11 Cal.App.4th 332, 347, fn. 9 [13 Cal.Rptr.2d 819].)
• The existence of an emergency situation can also be a defense to battery.
(Wheeler v. Barker (1949) 92 Cal.App.2d 776, 781 [208 P.2d 68]; Preston v.
Hubbell (1948) 87 Cal.App.2d 53, 57–58 [196 P.2d 113]; Hundley v. St. Francis
Hospital (1958) 161 Cal.App.2d 800, 802 [327 P.2d 131].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 470
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.15
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3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.14, 31.62 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[7] (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.38 (Matthew
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
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555. Affirmative Defense—Statute of Limitations—Medical
Malpractice—One-Year Limit (Code Civ. Proc., § 340.5)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that before [insert date one year before date of
filing], [name of plaintiff] discovered, or knew of facts that would have
caused a reasonable person to suspect, that [he/she/nonbinary pronoun]
had suffered harm that was caused by someone’s wrongful conduct.
[If, however, [name of plaintiff] proves [insert tolling provision(s) of general
applicability, e.g., Code Civ. Proc., §§ 351 [absence from California], 352
[insanity], 352.1 [prisoners], 352.5 [restitution orders], 353.1 [court’s
assumption of attorney’s practice], 354 [war], 356 [injunction]], the period
within which [name of plaintiff] had to file the lawsuit is extended for the
amount of time that [insert tolling provision, e.g., [name of defendant] was
absent from California].]
New April 2009; Revised May 2020
Directions for Use
Use CACI No. 556, Affırmative Defense—Statute of Limitations—Medical
Malpractice—Three-Year Limit, if the three-year limitation provision is at issue.
If the notice of intent to sue required by Code of Civil Procedure section 364 is
served within 90 days of the date on which the statute of limitations will run, the
statute of limitations is tolled for 90 days beyond the end of the limitations period.
(See Code Civ. Proc., § 364; Woods v. Young (1991) 53 Cal.3d 315, 325–326 [279
Cal.Rptr. 613, 807 P.2d 455].) Adjust the “date one year before the date of filing” in
the instruction accordingly. If there is an issue of fact with regard to compliance
with the requirements of section 364, the instruction may need to be modified
accordingly.
Give the optional last paragraph if there is a question of fact concerning a tolling
provision from the Code of Civil Procedure. If so, the verdict form should ask the
jury to find (1) the “discovery” date (the date on which the plaintiff discovered or
knew of facts that would have caused a reasonable person to suspect that the person
had suffered harm that was caused by someone’s wrongful conduct); (2) whether the
tolling provision applies; and (3) if so, for what period of time. The court can then
add the additional time to the discovery date and determine whether the action is
timely.
Contrary to the otherwise applicable rule (see CACI No. 455, Statute of
Limitations—Delayed Discovery), the defendant has been given the burden of
proving that the plaintiff discovered or should have discovered the facts alleged to
constitute the defendant’s wrongdoing more than one year before filing the action.
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(See Samuels v. Mix (1999) 22 Cal.4th 1, 8–10 [91 Cal.Rptr.2d 273, 989 P.2d 701]
[construing structurally similar Code Civ. Proc., § 340.6, on legal malpractice, to
place burden regarding delayed discovery on the defendant and disapproving Burgon
v. Kaiser Foundation Hospitals (1979) 93 Cal.App.3d 813 [155 Cal.Rptr. 763],
which had reached the opposite result under Code Civ. Proc., § 340.5].) See also
CACI No. 610, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit.
Sources and Authority
• Statutes of Limitation for Medical Malpractice. Code of Civil Procedure section
340.5.
• Notice of Intent to Commence Action. Code of Civil Procedure section 364(a).
• 90-Day Extension of Limitation Period. Code of Civil Procedure section 364(d).
• “The one-year limitation period of section 340.5 is a codification of the
discovery rule, under which a cause of action accrues when the plaintiff is
aware, or reasonably should be aware, of ‘injury,’ a term of art which means
‘both the negligent cause and the damaging effect of the alleged wrongful act.’ ”
(Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290 [170 Cal.Rptr.3d 125].)
• “When a plaintiff has information which would put a reasonable person on
inquiry, when a plaintiff’s “reasonably founded suspicions [have been] aroused”
and the plaintiff has “become alerted to the necessity for investigation and
pursuit of her remedies,” the one-year period commences. “Possession of
‘presumptive’ as well as ‘actual’ knowledge will commence the running of the
statute.” ’ ” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823 [16 Cal.Rptr.2d
714], internal citations omitted.)
• “[W]hen the plaintiff in a medical malpractice action alleges the defendant health
care provider misdiagnosed or failed to diagnose a preexisting disease or
condition, there is no injury for purposes of section 340.5 until the plaintiff first
experiences appreciable harm as a result of the misdiagnosis, which is when the
plaintiff first becomes aware that a preexisting disease or condition has
developed into a more serious one.” (Drexler v. Petersen (2016) 4 Cal.App.5th
1181, 1183–1184 [209 Cal.Rtpr.3d 332].)
• “Injury from the failure to diagnose a latent, progressive condition occurs ‘when
the undiagnosed condition develops into a more serious condition,’ and that more
serious condition is made manifest by an appreciable increase or alteration in
symptoms. A patient’s concerns or suspicions about a diagnosis do not trigger
the statute of limitations when no more serious condition is manifest and no lack
of diligence is shown.” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 781
[273 Cal.Rptr.3d 731], internal citations omitted.)
• “The fact that [plaintiff] contemplated suing [defendants] is strong evidence that
[plaintiff] suspected the doctors had not properly diagnosed or treated his
headaches. Even with the presence of such suspicions, however, the one-year
and three-year limitations periods did not begin to run until [plaintiff] discovered
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his injury—that is, became aware of additional, appreciable harm from his
preexisting condition—and, with respect to the one-year limitations period, also
had reason to believe that injury was caused by the wrongdoing of [defendants].”
(Drexler, supra, 4 Cal.App.5th at p. 1190, internal citation omitted.)
• “We see no reason to apply the second sentence of section 340.5 to the one-year
period it does not mention, in addition to the three-year period it does mention.
The general purpose of MICRA does not require us to expand that sentence
beyond its language.” (Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928,
934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [Code Civ. Proc., § 352.1, which tolls
statutes of limitation for prisoners, applies to extend one-year period of Code
Civ. Proc., § 340.5].)
• “The implications of Belton’s analysis for our case here is inescapable. Like
tolling the statute of limitations for confined prisoners under section 352.1,
tolling under section 351 for a defendant’s absence from California is of general
applicability [and therefore extends the one-year period of Code of Civil
Procedure section 340.5]. (For other general tolling provisions, see § 352 [minors
or insanity]; § 352.5 [restitution orders]; § 353.1 [court’s assumption of
attorney’s practice]; § 354 [war]; § 356 [injunction].)” (Kaplan v. Mamelak
(2008) 162 Cal.App.4th 637, 643 [75 Cal.Rptr.3d 861].)
• “[A] plaintiff’s minority as such does not toll the limitations period of section
340.5. When the Legislature added the separate statute of limitations for minors
to section 340.5 in 1975, it clearly intended that the general provision for tolling
of statutes of limitation during a person’s minority (§ 352, subd. (a)(1)) should
no longer apply to medical malpractice actions.” (Steketee v. Lintz (1985) 38
Cal.3d 46, 53 [210 Cal.Rptr 781, 694 P.2d 1153], internal citations omitted.)
• “Section 340.5 creates two separate statutes of limitations, both of which must
be satisfied if a plaintiff is to timely file a medical malpractice action. First, the
plaintiff must file within one year after she first ‘discovers’ the injury and the
negligent cause of that injury. Secondly, she must file within three years after
she first experiences harm from the injury. This means that if a plaintiff does not
‘discover’ the negligent cause of her injury until more than three years after she
first experiences harm from the injury, she will not be able to bring a
malpractice action against the medical practitioner or hospital whose malpractice
caused her injury.” (Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d
1046, 1054 [254 Cal.Rptr. 104], original italics.)
• “That legislative purpose [re: Code Civ. Proc., § 364] is best effectuated by
construing section 364(d) as tolling the one-year statute of limitations when
section 364(a)’s ninety-day notice of intent to sue is served during, but not
before, the last ninety days of the one-year limitations period. Because the
statute of limitations is tolled for 90 days and not merely extended by 90 days
from the date of service of the notice, this construction results in a period of 1
year and 90 days in which to file the lawsuit. In providing for a waiting period
of at least 90 days before suit can be brought, this construction achieves the
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legislative objective of encouraging negotiated resolutions of disputes.” (Woods,
supra, 53 Cal.3d at p. 325.)
• “[I]f the act or omission that led to the plaintiff’s injuries was negligence in the
maintenance of equipment that, under the prevailing standard of care, was
reasonably required to treat or accommodate a physical or mental condition of
the patient, the plaintiff’s claim is one of professional negligence under section
340.5. But section 340.5 does not extend to negligence in the maintenance of
equipment and premises that are merely convenient for, or incidental to, the
provision of medical care to a patient.” (Flores v. Presbyterian Intercommunity
Hospital (2016) 63 Cal.4th 75, 88 [201 Cal.Rptr.3d 449, 369 P.3d 229]; see
Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153,
157–162 [222 Cal.Rptr.3d 839] [tripping over scale does not involve provision of
medical care].)
• “[W]hile MICRA is not limited to suits by patients, it ‘applies only to actions
alleging injury suffered as a result of negligence in . . . the provision of medical
care to patients.’ Driving to an accident victim is not the same as providing
medical care to the victim. A paramedic’s exercise of due care while driving is
not ‘necessary or otherwise integrally related to the medical treatment and
diagnosis of the patient”, at least when the patient is not in the vehicle.’ ”
(Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 8 [205 Cal.Rptr.3d 719], internal
citations omitted.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue—Statute Of Limitations, ¶ 5:109 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.26, 9.67–9.72
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Professionals, § 31.60 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.47 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.45 et seq. (Matthew Bender)
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1–7:7 (Thomson
Reuters)
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556. Affirmative Defense—Statute of Limitations—Medical
Malpractice—Three-Year Limit (Code Civ. Proc., § 340.5)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [name of plaintiff]’s alleged injury occurred
before [insert date three years before date of filing].
[If, however, [name of plaintiff] proves
[Choose one or more of the following options:]
[that [he/she/nonbinary pronoun/it] did not discover the alleged
wrongful act or omission because [name of defendant] acted
fraudulently[,/; or]]
[that [name of defendant] intentionally concealed facts constituting the
wrongful act or omission[,/; or]]
[that the alleged wrongful act or omission involved the presence of an
object that had no therapeutic or diagnostic purpose or effect in [name of
plaintiff]’s body[,/;]]
the period within which [name of plaintiff] had to file the lawsuit is
extended for the amount of time that [insert tolling provision, e.g., [name
of defendant] intentionally concealed the facts].]
New April 2009; Revised November 2017
Directions for Use
Use CACI No. 555, Affırmative Defense—Statute of Limitations—Medical
Malpractice—One-Year Limit, if the one-year limitation provision is at issue.
If no tolling provision from Code of Civil Procedure section 340.5 is at issue, read
only the first paragraph. Read the rest of the instruction if there is a question of fact
concerning a tolling provision. If so, the verdict form should ask the jury to find (1)
the date on which the alleged injury occurred; (2) whether the tolling provision
applies; and (3) if so, for what period of time. The court can then add the additional
time to the date of injury and determine whether the action is timely.
If the notice of intent to sue required by Code of Civil Procedure section 364 is
served within 90 days of the date on which the statute of limitations will run, the
statute of limitations is tolled for 90 days beyond the end of the limitation period.
(See Code Civ. Proc., § 364; Russell v. Stanford Univ. Hospital (1997) 15 Cal.4th
783, 789–790 [64 Cal.Rptr.2d 97, 937 P.2d 640].) If there is an issue of fact with
regard to compliance with the requirements of section 364, the instruction may need
to be modified accordingly.
If the claim involves a diagnosis error, the cause of action accrues when the plaintiff
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first experiences “appreciable harm” as a result of the defendant’s diagnosis error.
Appreciable harm occurs when the plaintiff first becomes aware, or reasonably
should have become aware, that a preexisting disease or condition has developed
into a more serious one. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181,
1183–1184, 1194 [209 Cal.Rptr.3d 332].) When this has occurred is a question of
fact for the jury unless the facts are undisputed. (Id. at p. 1197.) Appreciable harm
determines when the injury occurred to complete the cause of action; it is not a
question of delayed discovery. Therefore, appreciable harm is required to trigger the
three-year limitation period of Code of Civil Procedure section 340.5. (Steingart v.
White (1988) 198 Cal.App.3d 406, 414–417 [243 Cal.Rptr. 678].)
Sources and Authority
• Three-Year Limitation Period for Medical Malpractice. Code of Civil Procedure
section 340.5.
• “No tolling provision outside of MICRA can extend the three-year maximum
time period that section 340.5 establishes.” (Belton v. Bowers Ambulance Serv.
(1999) 20 Cal.4th 928, 931 [86 Cal.Rptr.2d 107, 978 P.2d 591]; see also Fogarty
v. Superior Court (1981) 117 Cal.App.3d 316, 319–321 [172 Cal.Rptr. 594]
[Code Civ. Proc., § 352 does not toll statute for insanity].)
• “The three-year limitations period of section 340.5 provides an outer limit which
terminates all malpractice liability and it commences to run when the patient is
aware of the physical manifestation of her injury without regard to awareness of
the negligent cause.” (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 760 [199
Cal.Rptr. 816].)
• “The fact that [plaintiff] contemplated suing [defendants] is strong evidence that
[plaintiff] suspected the doctors had not properly diagnosed or treated his
headaches. Even with the presence of such suspicions, however, the one-year
and three-year limitations periods did not begin to run until [plaintiff] discovered
his injury—that is, became aware of additional, appreciable harm from his
preexisting condition—and, with respect to the one-year limitations period, also
had reason to believe that injury was caused by the wrongdoing of [defendants].”
(Drexler, supra, 4 Cal.App.5th at p. 1190, internal citation omitted.)
• “Section 340.5 creates two separate statutes of limitations, both of which must
be satisfied if a plaintiff is to timely file a medical malpractice action. First, the
plaintiff must file within one year after she first ‘discovers’ the injury and the
negligent cause of that injury. Secondly, she must file within three years after
she first experiences harm from the injury. This means that if a plaintiff does not
‘discover’ the negligent cause of her injury until more than three years after she
first experiences harm from the injury, she will not be able to bring a
malpractice action against the medical practitioner or hospital whose malpractice
caused her injury.” (Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d
1046, 1054 [254 Cal.Rptr. 104], original italics.)
• “The same considerations of legislative intent that compelled us, in [Woods v.
Young (1991) 53 Cal.3d 315, 325–326 [279 Cal.Rptr. 613, 807 P.2d 455]], to
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construe Code of Civil Procedure section 364, subdivision (d), as ‘tolling’ the
one-year limitations period also apply to the three-year limitation. Unless the
limitations period is so construed, the legislative purpose of reducing the cost
and increasing the efficiency of medical malpractice litigation by, among other
things, encouraging negotiated resolution of disputes will be frustrated.
Moreover, a plaintiff’s attorney who gives notice within the last 90 days of the
3-year limitations period will confront the dilemma we addressed in Woods, i.e.,
a choice between preserving the plaintiff’s cause of action by violating the 90-
day notice period under Code of Civil Procedure section 364, subdivision
(d)—thereby invoking potential disciplinary proceedings by the State Bar—and
forfeiting the client’s cause of action. In the absence of tolling, the practical
effect of the statute would be to shorten the statutory limitations period from
three years to two years and nine months. As in the case of the one-year
limitation, we discern no legislative intent to do so.” (Russell, supra, 15 Cal.4th
at pp. 789–790.)
• “[T]he ‘no therapeutic or diagnostic purpose or effect’ qualification in section
340.5 means the foreign body exception does not apply to objects and substances
intended to be permanently implanted, but items temporarily placed in the body
as part of a procedure and meant to be removed at a later time do come within
it.” (Maher v. County of Alameda (2014) 223 Cal.App.4th 1340, 1352 [168
Cal.Rptr.3d 56].)
• “[I]f the act or omission that led to the plaintiff’s injuries was negligence in the
maintenance of equipment that, under the prevailing standard of care, was
reasonably required to treat or accommodate a physical or mental condition of
the patient, the plaintiff’s claim is one of professional negligence under section
340.5. But section 340.5 does not extend to negligence in the maintenance of
equipment and premises that are merely convenient for, or incidental to, the
provision of medical care to a patient.” (Flores v. Presbyterian Intercommunity
Hospital (2016) 63 Cal.4th 75, 88 [201 Cal.Rptr.3d 449, 369 P.3d 229]; see
Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153,
157–162 [222 Cal.Rptr.3d 839] [tripping over scale does not involve provision of
medical care].)
• “[W]hile MICRA is not limited to suits by patients, it ‘applies only to actions
alleging injury suffered as a result of negligence in . . . the provision of medical
care to patients.’ Driving to an accident victim is not the same as providing
medical care to the victim. A paramedic’s exercise of due care while driving is
not ‘necessary or otherwise integrally related to the medical treatment and
diagnosis of the patient”, at least when the patient is not in the vehicle.. . .’ ”
(Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 8 [205 Cal.Rptr.3d 719], internal
citations omitted.)
• “[W]hen the plaintiff in a medical malpractice action alleges the defendant health
care provider misdiagnosed or failed to diagnose a preexisting disease or
condition, there is no injury for purposes of section 340.5 until the plaintiff first
experiences appreciable harm as a result of the misdiagnosis, which is when the
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plaintiff first becomes aware that a preexisting disease or condition has
developed into a more serious one.” (Drexler, supra, 4 Cal.App.5th 1183–1184.)
• “Applying the well-settled definition of injury set forth in the cases cited ante to
the facts here, it must be concluded [plaintiff] suffered no damaging affect or
appreciable harm from [defendant]’s asserted neglect until [doctor] discovered
her cancer in April 1985. Her complaint was therefore timely with respect to the
three-year limit.” (Steingart, supra, 198 Cal.App.3d at p. 414.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 1-B, First Steps in
Handling a Personal Injury Case—Initial Evaluation of Case: Decision to Accept or
Reject Employment or Undertake Further Evaluation of Claim, ¶ 1:67.1 (The Rutter
Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.26, 9.67–9.72
4 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Professionals, § 31.60 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.47 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.45 et seq. (Matthew Bender)
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1–7:7 (Thomson
Reuters)
557–599. Reserved for Future Use
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VF-500. Medical Negligence
We answer the questions submitted to us as follows:
1. Was [name of defendant] negligent in the diagnosis or treatment of
[name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 500, Medical Negligence—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-501. Medical Negligence—Informed Consent—Affirmative
Defense—Plaintiff Would Have Consented Even If Informed
We answer the questions submitted to us as follows:
1. Did [name of defendant] perform a [insert medical procedure] on
[name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] give [his/her/nonbinary pronoun] informed
consent for the [insert medical procedure]?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Would a reasonable person in [name of plaintiff]’s position have
refused the [insert medical procedure] if that person had been
adequately informed of the possible results and risks of [and
alternatives to] the [insert medical procedure]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would [name of plaintiff] have consented to the [insert medical
procedure] even if [he/she/nonbinary pronoun] had been given
adequate information about the risks of the [insert medical
procedure]?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff] harmed as a consequence of a result or
risk that [name of defendant] should have explained before the
[insert medical procedure] was performed?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
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answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2015, December
2016, May 2020
Directions for Use
This verdict form is based on CACI No. 533, Failure to Obtain Informed
Consent—Essential Factual Elements, and CACI No. 550, Affırmative
Defense—Plaintiff Would Have Consented.
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The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the affirmative defense, which is contained in question 4, is not an issue in the
case, question 4 should be omitted and the remaining questions renumbered
accordingly.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-502. Medical Negligence—Informed Consent—Affirmative
Defense—Emergency
We answer the questions submitted to us as follows:
1. Did [name of defendant] perform a [insert medical procedure] on
[name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] give [his/her/nonbinary pronoun] informed
consent to the [insert medical procedure]?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Would a reasonable person in [name of plaintiff]’s position have
refused the [insert medical procedure] if that person had been fully
informed of the possible results and risks of [and alternatives to]
the [insert medical procedure]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff] harmed as a consequence of a result or
risk that [name of defendant] should have explained before the
[insert medical procedure] was performed?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] reasonably believe the [insert medical
procedure] had to be done immediately in order to preserve the
life or health of [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is no, then answer question 7. If you
answered yes to this question, answer question 6.
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6. Was [name of plaintiff] unconscious?
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2016, May 2020
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Directions for Use
This verdict form is based on CACI No. 533, Failure to Obtain Informed
Consent—Essential Factual Elements, and CACI No. 554, Affırmative
Defense—Emergency.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Depending on the facts, alternative language may be substituted for question 6 as in
item 2 of CACI No. 554. If specificity is not required, users do not have to itemize
all the damages listed in question 7. The breakdown is optional depending on the
circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the affirmative defense, which is contained in questions 5 and 6, is not an issue in
the case, then questions 5 and 6 should be omitted and the remaining questions
renumbered accordingly.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-503–VF-599. Reserved for Future Use
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PROFESSIONAL NEGLIGENCE
600. Standard of Care
601. Negligent Handling of Legal Matter
602. Success Not Required
603. Alternative Legal Decisions or Strategies
604. Referral to Legal Specialist
605. Reserved for Future Use
606. Legal Malpractice Causing Criminal Conviction—Actual Innocence
607–609. Reserved for Future Use
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-
Year Limit (Code Civ. Proc., § 340.6)
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-
Year Limit (Code Civ. Proc., § 340.6)
612–699. Reserved for Future Use
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600. Standard of Care
[A/An] [insert type of professional] is negligent if [he/she/nonbinary
pronoun] fails to use the skill and care that a reasonably careful [insert
type of professional] would have used in similar circumstances. This level
of skill, knowledge, and care is sometimes referred to as “the standard of
care.”
[You must determine the level of skill and care that a reasonably careful
[insert type of professional] would use in similar circumstances based only
on the testimony of the expert witnesses[, including [name of defendant],]
who have testified in this case.]
New September 2003; Revised October 2004, December 2007, May 2020
Directions for Use
Use this instruction for all professional negligence cases other than professional
medical negligence, for which CACI No. 501, Standard of Care for Health Care
Professionals, should be used. See CACI No. 400, Negligence—Essential Factual
Elements, for an instruction on the plaintiff’s burden of proof. The word “legal” or
“professional” should be added before the word “negligence” in the first paragraph
of CACI No. 400. (See Sources and Authority following CACI No. 500, Medical
Negligence—Essential Factual Elements.)
Read the second paragraph if the standard of care must be established by expert
testimony.
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
If the defendant is a specialist in a field, this instruction should be modified to
reflect that the defendant is held to the standard of care of a specialist. (Wright v.
Williams (1975) 47 Cal.App.3d 802, 810 [121 Cal.Rptr. 194].) The standard of care
for claims related to a specialist’s expertise is determined by expert testimony. (Id.
at pp. 810–811.)
Whether an attorney-client relationship exists is a question of law. (Responsible
Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733 [20 Cal.Rptr.2d 756].)
If the evidence bearing upon this decision is in conflict, preliminary factual
determinations are necessary. (Ibid.) Special instructions may need to be crafted for
that purpose.
Sources and Authority
• “The elements of a cause of action in tort for professional negligence are (1) the
duty of the professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligent conduct and the
resulting injury; and (4) actual loss or damage resulting from the professional’s
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negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491
P.2d 433].)
• “Plaintiffs’ argument that CACI No. 600 altered their burden of proof is
misguided in that it assumes that a ‘professional’ standard of care is inherently
different than the standard in ordinary negligence cases. It is not. ‘With respect
to professionals, their specialized education and training do not serve to impose
an increased duty of care but rather are considered additional “circumstances’
relevant to an overall assessment of what constitutes “ordinary prudence” in a
particular situation.’ ‘Since the standard of care remains constant in terms of
“ordinary prudence,” it is clear that denominating a cause of action as one for
“professional negligence” does not transmute its underlying character. For
substantive purposes, it merely serves to establish the basis by which “ordinary
prudence” will be calculated and the defendant’s conduct evaluated.’ ” (LAOSD
Asbestos Cases (2016) 5 Cal.App.5th 1022, 1050 [211 Cal.Rptr.3d 261], internal
citation omitted.)
• “ ‘In addressing breach of duty, “the crucial inquiry is whether [the attorney’s]
advice was so legally deficient when it was given that he [or she] may be found
to have failed to use ‘such skill, prudence, and diligence as lawyers of ordinary
skill and capacity commonly possess and exercise in the performance of the
tasks which they undertake.’ . . .” . . .’ ” (Blanks v. Seyfarth Shaw LLP (2009)
171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710].)
• “[I]f the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort.” (Moua v. Pittullo, Howington, Barker, Abernathy, LLP
(2014) 228 Cal.App.4th 107, 112–113 [174 Cal.Rptr.3d 662].)
• “[T]he issue of negligence in a legal malpractice case is ordinarily an issue of
fact.” (Blanks, supra, 171 Cal.App.4th at p. 376.)
• “ ‘[T]he requirement that the plaintiff prove causation should not be confused
with the method or means of doing so. Phrases such as “trial within a
trial,” “case within a case,” . . . and “better deal” scenario describe methods of
proving causation, not the causation requirement itself or the test for determining
whether causation has been established.’ ” (Knutson v. Foster (2018) 25
Cal.App.5th 1075, 1091 [236 Cal.Rptr.3d 473].)
• “Plaintiffs argue that ‘laying pipe is not a “profession.” ’ However, case law,
statutes, and secondary sources suggest that the scope of those held to a
‘professional’ standard of care—a standard of care similar to others in their
profession, as opposed to that of a ‘reasonable person’—is broad enough to
encompass a wide range of specialized skills. As a general matter, ‘[t]hose
undertaking to render expert services in the practice of a profession or trade are
required to have and apply the skill, knowledge and competence ordinarily
possessed by their fellow practitioners under similar circumstances, and failure to
do so subjects them to liability for negligence.’ ” (LAOSD Asbestos Cases,
supra, 5 Cal.App.5th at p. 1050.)
• “It is well settled that an attorney is liable for malpractice when his negligent
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investigation, advice, or conduct of the client’s affairs results in loss of the
client’s meritorious claim.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [218
Cal.Rptr. 313, 705 P.2d 886].)
• “[A] lawyer holding himself out to the public and the profession as specializing
in an area of the law must exercise the skill, prudence, and diligence exercised
by other specialists of ordinary skill and capacity specializing in the same field.”
(Wright, supra, 47 Cal.App.3d at p. 810.)
• “To establish a [professional] malpractice claim, a plaintiff is required to present
expert testimony establishing the appropriate standard of care in the relevant
community. ‘Standard of care “ ‘is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations] . . . .’ ” [Citation.]’ ” (Quigley v. McClellan
(2013) 214 Cal.App.4th 1276, 1283 [154 Cal.Rptr.3d 719], internal citations
omitted.)
• “California law does not require an expert witness to prove professional
malpractice in all circumstances. ‘In professional malpractice cases, expert
opinion testimony is required to prove or disprove that the defendant performed
in accordance with the prevailing standard of care [citation], except in cases
where the negligence is obvious to laymen.’ ” (Ryan v. Real Estate of the
Pacific, Inc. (2019) 32 Cal.App.5th 637, 644–645 [244 Cal.Rptr.3d 129].)
• “Where . . . the malpractice action is brought against an attorney holding
himself out as a legal specialist and the claim against him is related to his
expertise as such, then only a person knowledgeable in the specialty can define
the applicable duty of care and opine whether it was met.” (Wright, supra, 47
Cal.App.3d at pp. 810–811, footnote and internal citations omitted.)
• “The standard is that of members of the profession ‘in the same or a similar
locality under similar circumstances’ . . . . The duty encompasses both a
knowledge of law and an obligation of diligent research and informed
judgment.” (Wright, supra, 47 Cal.App.3d at p. 809, internal citations omitted;
but see Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th
463, 470–471 [71 Cal.Rptr.3d 707] [geographical location may be a factor to be
considered, but by itself, does not provide a practical basis for measuring similar
circumstances].)
• Failing to Act Competently. Rules of Professional Conduct, rule 3-110.
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, § 288
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 593
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1124, 1125,
1128–1131
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 1-A,
Sources Of Regulation Of Practice Of Law In California-Overview, ¶ 1:39 (The
Rutter Group)
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Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 6-E,
Professional Liability, ¶¶ 6:230–6:234 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.31
(Matthew Bender)
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, §§ 30.12, 30.13, Ch. 32, Liability of Attorneys, § 32.13 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§§ 76.50, 76.51 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.50
(Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.20 et seq. (Matthew Bender)
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601. Negligent Handling of Legal Matter
To recover damages from [name of defendant], [name of plaintiff] must
prove that [he/she/nonbinary pronoun/it] would have obtained a better
result if [name of defendant] had acted as a reasonably careful attorney.
[Name of plaintiff] was not harmed by [name of defendant]’s conduct if the
same harm would have occurred anyway without that conduct.
New September 2003; Revised June 2015, May 2020
Directions for Use
In cases involving professionals other than attorneys, this instruction would need to
be modified by inserting the type of the professional in place of “attorney.” (See,
e.g., Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 829–830
[60 Cal.Rptr.2d 780] [trial-within-a-trial method was applied to accountants].)
The plaintiff must prove that but for the attorney’s negligent acts or omissions, the
plaintiff would have obtained a more favorable judgment or settlement in the
underlying action. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241 [135 Cal. Rptr. 2d
629, 70 P.3d 1046].) The second sentence expresses this “but for” standard.
Sources and Authority
• “If the allegedly negligent conduct does not cause damage, it generates no cause
of action in tort. The mere breach of a professional duty, causing only nominal
damages, speculative harm, or the threat of future harm—not yet realized—does
not suffice to create a cause of action for negligence.” (Jordache Enterprises,
Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749–750 [76
Cal.Rptr.2d 749, 958 P.2d 1062].)
• “In the legal malpractice context, the elements of causation and damage are
particularly closely linked.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574,
1582 [171 Cal.Rptr.3d 23].)
• “In a client’s action against an attorney for legal malpractice, the client must
prove, among other things, that the attorney’s negligent acts or omissions caused
the client to suffer some financial harm or loss. When the alleged malpractice
occurred in the performance of transactional work (giving advice or preparing
documents for a business transaction), must the client prove this causation
element according to the ‘but for’ test, meaning that the harm or loss would not
have occurred without the attorney’s malpractice? The answer is yes.” (Viner,
supra, 30 Cal.4th at p. 1235.)
• “[The trial-within-a-trial method] is the most effective safeguard yet devised
against speculative and conjectural claims in this era of ever expanding
litigation. It is a standard of proof designed to limit damages to those actually
caused by a professional’s malfeasance.” (Mattco Forge Inc., supra, 52
Cal.App.4th at p. 834.)
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• “ ‘Damage to be subject to a proper award must be such as follows the act
complained of as a legal certainty . . . .’ Conversely, ‘ “ ‘[t]he mere probability
that a certain event would have happened, upon which a claim for damages is
predicated, will not support the claim or furnish the foundation of an action for
such damages.’ ” ’ ” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165–166
[149 Cal.Rptr.3d 422], original italics, footnote and internal citations omitted.)
• “One who establishes malpractice on the part of his or her attorney in
prosecuting a lawsuit must also prove that careful management of it would have
resulted in a favorable judgment and collection thereof, as there is no damage in
the absence of these latter elements.” (DiPalma v. Seldman (1994) 27
Cal.App.4th 1499, 1506–1507 [33 Cal.Rptr.2d 219], original italics.)
• “ ‘The element of collectibility requires a showing of the debtor’s solvency.
“[‘W]here a claim is alleged to have been lost by an attorney’s negligence, . . .
to recover more than nominal damages it must be shown that it was a valid
subsisting debt, and that the debtor was solvent.’ [Citation.]” The loss of a
collectible judgment “by definition means the lost opportunity to collect a money
judgment from a solvent [defendant] and is certainly legally sufficient evidence
of actual damage.” ’ ” (Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th
1180, 1190 [164 Cal.Rptr.3d 54], original italics, internal citations omitted.)
• “Collectibility is part of the plaintiff’s case, and a component of the causation
and damages showing, rather than an affirmative defense which the Attorney
Defendants must demonstrate.” (Wise, supra, 220 Cal.App.4th at p. 1191.)
• “Because of the legal malpractice, the original target is out of range; thus, the
misperforming attorney must stand in and submit to being the target instead of
the former target which the attorney negligently permitted to escape. This is the
essence of the case-within-a-case doctrine.” (Arciniega v. Bank of San
Bernardino (1997) 52 Cal.App.4th 213, 231 [60 Cal.Rptr.2d 495].)
• “Where the attorney’s negligence does not result in a total loss of the client’s
claim, the measure of damages is the difference between what was recovered and
what would have been recovered but for the attorney’s wrongful act or omission.
[¶] Thus, in a legal malpractice action, if a reasonably competent attorney would
have obtained a $3 million recovery for the client but the negligent attorney
obtained only a $2 million recovery, the client’s damage due to the attorney’s
negligence would be $1 million—the difference between what a competent
attorney would have obtained and what the negligent attorney obtained.” (Norton
v. Superior Court (1994) 24 Cal.App.4th 1750, 1758 [30 Cal.Rptr.2d 217].)
• “[A] plaintiff who alleges an inadequate settlement in the underlying action must
prove that, if not for the malpractice, she would certainly have received more
money in settlement or at trial. [¶] The requirement that a plaintiff need prove
damages to ‘a legal certainty’ is difficult to meet in any case. It is particularly so
in ‘settle and sue’ cases . . . .” (Filbin, supra, 211 Cal.App.4th at p. 166,
original italics, internal citation omitted.)
• “[W]e conclude the applicable standard of proof for the elements of causation
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and damages in a ‘settle and sue’ legal malpractice action is the preponderance
of the evidence standard. First, use of the preponderance of the evidence
standard of proof is appropriate because it is the ‘default standard of proof in
civil cases’ and use of a higher standard of proof ‘occurs only when interests
“ ‘more substantial than mere loss of money’ ” are at stake.’ ” (Masellis v. Law
Offıce of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1092 [264 Cal.Rptr.3d
621].)
• “In a legal malpractice action, causation is an issue of fact for the jury to decide
except in those cases where reasonable minds cannot differ; in those cases, the
trial court may decide the issue itself as a matter of law.” (Yanez v. Plummer
(2013) 221 Cal.App.4th 180, 187 [164 Cal.Rptr.3d 309].)
• “ ‘The trial-within-a-trial method does not “recreate what a particular judge or
fact finder would have done. Rather, the jury’s task is to determine what a
reasonable judge or fact finder would have done . . . .” . . . Even though
“should” and “would” are used interchangeably by the courts, the standard
remains an objective one. The trier of fact determines what should have been,
not what the result would have been, or could have been, or might have been,
had the matter been before a particular judge or jury. . . .” (Blanks v. Seyfarth
Shaw LLP (2009) 171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710], original
italics.)
• “If the underlying issue originally was a factual question that would have gone
to a tribunal rather than a judge, it is the jury who must decide what a
reasonable tribunal would have done. The identity or expertise of the original
trier of fact (i.e., a judge or an arbitrator or another type of adjudicator) does not
alter the jury’s responsibility in the legal malpractice trial-within-a-trial.”
(Blanks, supra, 171 Cal.App.4th at pp. 357–358.)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 319–322
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-E,
Professional Liability, ¶ 6:322 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.10 et seq.
(Matthew Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§ 76.50 et seq. (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.20 et seq. (Matthew Bender)
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602. Success Not Required
[A/An] [insert type of professional] is not necessarily negligent just
because [his/her/nonbinary pronoun] efforts are unsuccessful or [he/she/
nonbinary pronoun] makes an error that was reasonable under the
circumstances. [A/An] [insert type of professional] is negligent only if [he/
she/nonbinary pronoun] was not as skillful, knowledgeable, or careful as
another reasonable [insert type of professional] would have been in similar
circumstances.
New September 2003; Revised December 2007
Directions for Use
Use this instruction for all professional negligence cases other than professional
medical negligence, for which CACI No. 505, Success Not Required, should be
used.
Sources and Authority
• “The services of experts are sought because of their special skill. They have a
duty to exercise the ordinary skill and competence of members of their
profession, and a failure to discharge that duty will subject them to liability for
negligence. Those who hire such persons are not justified in expecting
infallibility, but can expect only reasonable care and competence. They purchase
service, not insurance.” (Gagne v. Bertran (1954) 43 Cal.2d 481, 489 [275 P.2d
15].)
• “This rule [of Gagne v. Bertran, supra] has been consistently followed in this
state with respect to professional services (Roberts v. Karr, 178 Cal.App.2d 535
[3 Cal.Rptr. 98] (surveyor); Gautier v. General Telephone Co., 234 Cal.App.2d
302 [44 Cal.Rptr. 404] (communications services); Bonadiman-McCain, Inc. v.
Snow, 183 Cal.App.2d 58 [6 Cal.Rptr. 52] (engineer); Lindner v. Barlow, Davis
& Wood, 210 Cal.App.2d 660 [27 Cal.Rptr. 101] (accountant); Pancoast v.
Russell, 148 Cal.App.2d 909 [307 P.2d 719] (architect)).” (Allied Properties v.
John A. Blume & Associates (1972) 25 Cal.App.3d 848, 856 [102 Cal.Rptr.
259].)
• “The attorney is not liable for every mistake he may make in his practice; he is
not, in the absence of an express agreement, an insurer of the soundness of his
opinions or of the validity of an instrument that he is engaged to draft; and he is
not liable for being in error as to a question of law on which reasonable doubt
may be entertained by well-informed lawyers.” (Lucas v. Hamm (1961) 56
Cal.2d 583, 591 [15 Cal.Rptr. 821, 364 P.2d 685], cert. denied (1962) 368 U.S.
987 [82 S.Ct. 603, 7 L.Ed.2d 525], internal citations omitted.)
• Jury instructions stating this principle are proper: “[A]n attorney does not
ordinarily guarantee the soundness of his opinions and, accordingly, is not liable
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for every mistake he may make in his practice. He is expected, however, to
possess knowledge of those plain and elementary principles of law which are
commonly known by well informed attorneys, and to discover those additional
rules of law which, although not commonly known, may readily be found by
standard research techniques.” (Smith v. Lewis (1975) 13 Cal.3d 349, 358 [118
Cal.Rptr. 621, 530 P.2d 589], overruled in part on other grounds in In re
Marriage of Brown (1976) 15 Cal.3d 838, 851 [126 Cal.Rptr. 633, 544 P.2d
561].)
• “In order to prevail on this theory and escape a negligence finding, an attorney
must show that there were unsettled or debatable areas of the law that were the
subject of the legal advice rendered and this advice was based upon ‘reasonable
research in an effort to ascertain relevant legal principles and to make an
informed decision as to a course of conduct based upon an intelligent assessment
of the problem.’ ” (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336,
378–379 [89 Cal.Rptr.3d 710].)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 326–329
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-E,
Professional Liability, ¶ 6:234 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, §§ 32.11, 32.62
(Matthew Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§ 76.50 (Matthew Bender)
1 California Legal Forms, Ch. 1A, Role of Counsel in Starting a New Business,
§§ 1A.30–1A.32 (Matthew Bender)
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603. Alternative Legal Decisions or Strategies
An attorney is not necessarily negligent just because the attorney
[chooses one legal strategy/makes a decision/makes a recommendation]
and it turns out that another [strategy/decision/recommendation] would
have been a better choice.
New September 2003; Revised May 2020
Sources and Authority
• “We recognize, of course, that an attorney engaging in litigation may have
occasion to choose among various alternative strategies available to his
client . . . .” (Smith v. Lewis (1975) 13 Cal.3d 349, 359 [118 Cal.Rptr. 621, 530
P.2d 589], overruled in part on other grounds in In re Marriage of Brown (1976)
15 Cal.3d 838, 851 [126 Cal.Rptr. 633, 544 P.2d 561].)
• “ ‘In view of the complexity of the law and the circumstances which call for
difficult choices among possible courses of action, the attorney cannot be held
legally responsible for an honest and reasonable mistake of law or an
unfortunate selection of remedy or other procedural step.’ [Citation.]” (Banerian
v. O’Malley (1974) 42 Cal.App.3d 604, 613 [116 Cal.Rptr. 919].)
Secondary Sources
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.11 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability
(Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice
(Matthew Bender)
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604. Referral to Legal Specialist
If a reasonably careful attorney in a similar situation would have
referred [name of plaintiff] to a legal specialist, then [name of defendant]
was negligent if [he/she/nonbinary pronoun] did not do so.
However, if [name of defendant] handled the matter with as much skill
and care as a reasonable legal specialist would have, then [name of
defendant] was not negligent.
New September 2003
Sources and Authority
• This type of an instruction was approved for use in legal malpractice cases in
Horne v. Peckham (1979) 97 Cal.App.3d 404, 414–415 [158 Cal.Rptr. 714],
disapproved on other grounds in ITT Small Business Finance Corp. v. Niles
(1994) 9 Cal.4th 245, 256 [36 Cal.Rptr.2d 552, 885 P.2d 965].
• Failing to Act Competently. Rule of Professional Conduct: Rule 3-110(C).
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, § 294
605. Reserved for Future Use
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606. Legal Malpractice Causing Criminal Conviction—Actual
Innocence
[Name of plaintiff] alleges that [name of defendant] was negligent in
defending [him/her/nonbinary pronoun] in a criminal case, and as a result,
[he/she/nonbinary pronoun] was wrongly convicted. To establish this
claim, [name of plaintiff] must first prove that [he/she/nonbinary pronoun]
was actually innocent of the charges for which [he/she/nonbinary pronoun]
was convicted.
New April 2009
Directions for Use
Give this instruction after CACI No. 400, Negligence—Essential Factual Elements,
and CACI No. 600, Standard of Care, in a legal malpractice action arising from an
underlying criminal case.
To prove actual innocence, the plaintiff must first prove legal exoneration. (See
Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201 [108 Cal.Rptr.2d 471,
25 P.3d 670].) Presumably, exoneration will be decided by the court as a matter of
law. If there is a question of fact regarding exoneration, this instruction should be
modified accordingly.
However, one may be exonerated without actually being innocent of the charges; for
example, by the People’s decision not to retry the case on remand because of
insufficient evidence. (See Coscia, supra, 25 Cal.4th at p. 1205 [exoneration is
prerequisite to proving actual innocence (emphasis added)].) Do not give this
instruction if the court determines as a matter of law that the exoneration does
establish actual innocence; for example, if later-discovered DNA evidence
conclusively proved that the plaintiff could not have committed the offense.
Sources and Authority
• Statute of Limitations: Factual Innocence. Code of Civil Procedure section
340.6(a).
• “In a legal malpractice action arising from a civil proceeding, the elements are
(1) the duty of the attorney to use such skill, prudence, and diligence as
members of his or her profession commonly possess and exercise; (2) a breach
of that duty; (3) a proximate causal connection between the breach and the
resulting injury; and (4) actual loss or damage resulting from the attorney’s
negligence. In a legal malpractice case arising out of a criminal proceeding,
California, like most jurisdictions, also requires proof of actual innocence.”
(Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 45 [83 Cal.Rptr.3d 779], internal
citations omitted.)
• “[T]hose policy considerations [underlying the actual-innocence requirement] are
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as follows. ‘First, we should not permit a guilty defendant to profit from his or
her own wrong. [Citation.] Second, to allow guilty defendants to shift their
punishment to their former attorneys would undermine the criminal justice
system. [Citation.] Third, “a defendant’s own criminal act remains the ultimate
source of his predicament irrespective of counsel’s subsequent negligence.”
[Citation.] Fourth, a guilty defendant who is convicted or given a longer
sentence as a result of counsel’s incompetence can obtain postconviction relief
on that basis; in contrast, “a civil matter lost through an attorney’s negligence is
lost forever.” [Citation.] Fifth, there are formidable practical problems with
criminal malpractice litigation, including the difficulty of quantifying damages
and the complexity of the standard of proof, which must combine the
preponderance of the evidence standard with the reasonable doubt standard
applicable in a criminal trial. [Citation.]’ ” (Khodayari v. Mashburn (2011) 200
Cal.App.4th 1184, 1193 [132 Cal.Rptr.3d 903].)
• “If the defendant has in fact committed a crime, the remedy of a new trial or
other relief is sufficient reparation in light of the countervailing public policies
and considering the purpose and function of constitutional guaranties.” Wiley v.
County of San Diego (1998) 19 Cal.4th 532, 543 [79 Cal.Rptr.2d 672, 966 P.2d
983].)
• “The question of actual innocence is inherently factual. While proof of the
government’s inability to prove guilt may involve technical defenses and
evidentiary rules, proof of actual innocence obliges the malpractice plaintiff ‘to
convince the civil jurors of his innocence.’ Thus, the determination of actual
innocence is rooted in the goal of reliable factfinding.” (Salisbury v. County of
Orange (2005) 131 Cal.App.4th 756, 764–765 [31 Cal.Rptr.3d 831], internal
citations omitted.)
• “[A]n individual convicted of a criminal offense must obtain reversal of his or
her conviction, or other exoneration by postconviction relief, in order to establish
actual innocence in a criminal malpractice action. . . . [P]ublic policy
considerations require that only an innocent person wrongly convicted be
deemed to have suffered a legally compensable harm. Unless a person convicted
of a criminal offense is successful in obtaining postconviction relief, the policies
reviewed in Wiley [supra] preclude recovery in a legal malpractice action.”
(Coscia, supra, 25 Cal.4th at p. 1201.)
• “[A] plaintiff must obtain postconviction relief in the form of a final disposition
of the underlying criminal case—for example, by acquittal after retrial, reversal
on appeal with directions to dismiss the charges, reversal followed by the
People’s refusal to continue the prosecution, or a grant of habeas corpus
relief—as a prerequisite to proving actual innocence in a malpractice action
against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at p. 1205.)
• “[T]he rationale of Wiley and Coscia requires a plaintiff in a criminal legal
malpractice case to show actual innocence and postconviction exoneration on
any guilty finding for a lesser included offense, even though the plaintiff alleges
he received negligent representation only on the greater offense.” (Sangha v.
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LaBarbera (2006) 146 Cal.App.4th 79, 87 [52 Cal.Rptr.3d 640].)
• “[Plaintiff] must be exonerated of all transactionally related offenses in order to
satisfy the holding in Coscia. Because the judicially noticed facts unequivocally
demonstrate that [plaintiff] plead no contest to two offenses transactionally
related to the felony charge of battery on a custodial officer in order to settle the
criminal action, and she was placed on probation for those offenses, she cannot
in good faith plead exoneration.” (Wilkinson, supra, 167 Cal.App.4th at p. 48.)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, § 290
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 6-H,
Professional Competence In Criminal Cases, ¶¶ 6:935–6:944 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.02 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§§ 76.10, 76.381 (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.32 (Matthew Bender)
607–609. Reserved for Future Use
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610. Affirmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit (Code Civ. Proc., § 340.6)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that before [insert date one year before date of
filing] [name of plaintiff] knew, or with reasonable diligence should have
discovered, the facts of [name of defendant]’s alleged wrongful act or
omission.
[If, however, [name of plaintiff] proves
[Choose one or more of the following three options:]
[that [he/she/nonbinary pronoun/it] did not sustain actual injury until
on or after [insert date one year before date of filing][,/; or]]
[that on or after [insert date one year before date of filing] [name of
defendant] continued to represent [name of plaintiff] regarding the specific
subject matter in which the wrongful act or omission occurred[,/; or]]
[that on or after [insert date one year before date of filing]
[he/she/nonbinary pronoun/it] was under a legal or physical disability that
restricted [his/her/nonbinary pronoun/its] ability to file a lawsuit[,/;]]
the period within which [name of plaintiff] had to file the lawsuit is
extended for the amount of time that [insert tolling provision, e.g., [name
of defendant] continued to represent [name of plaintiff]].]
New April 2007; Revised April 2009, May 2020
Directions for Use
Use CACI No. 611, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—Four-Year Limit, if the four-year limitation provision is at issue.
The court may need to define the term “actual injury” depending on the facts and
circumstances of the particular case.
If no tolling provision from Code of Civil Procedure section 340.6 is at issue, read
only through the end of the first paragraph. Read the rest of the instruction if there
is a question of fact concerning a tolling provision. If so, the verdict form should
ask the jury to find (1) the “discovery” date (the date on which the plaintiff
discovered or knew of facts that would have caused a reasonable person to suspect
that the person had suffered harm that was caused by someone’s wrongful conduct);
(2) whether the tolling provision applies; and (3) if so, for what period of time. The
court can then add the additional time to the discovery date and determine whether
the action is timely.
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Sources and Authority
• Statute of Limitation for Attorney Malpractice. Code of Civil Procedure section
340.6.
• Persons Under Disabilities. Code of Civil Procedure section 352.
• “Under section 340.6, the one-year limitations period commences when the
plaintiff actually or constructively discovers the facts of the wrongful act or
omission, but the period is tolled until the plaintiff sustains actual injury. That is
to say, the statute of limitations will not run during the time the plaintiff cannot
bring a cause of action for damages from professional negligence.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751 [76
Cal.Rptr.2d 749, 958 P.2d 1062].)
• “Summary judgment was proper under section 340.6, subdivision (a)’s one-year
limitations period only if the undisputed facts compel the conclusion that
[plaintiff] was on inquiry notice of his claim more than one year before the
complaint was filed. Inquiry notice exist where ‘the plaintiffs have reason to at
least suspect that a type of wrongdoing has injured them.’ ‘ “A plaintiff need not
be aware of the specific ‘facts’ necessary to establish the claim; that is a process
contemplated by pretrial discovery. Once the plaintiff has a suspicion of
wrongdoing, and therefore an incentive to sue, she must decide whether to file
suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff
must go find the facts; she cannot wait for the facts to find her.” [Citation.]’ ”
(Genisman v. Carley (2018) 29 Cal.App.5th 45, 50–51 [239 Cal.Rptr.3d 780],
internal citation omitted.)
• “ ‘ “[S]ubjective suspicion is not required. If a person becomes aware of facts
which would make a reasonably prudent person suspicious, he or she has a duty
to investigate further and is charged with knowledge of matters which would
have been revealed by such an investigation.” [Citation.]’ ” (Genisman, supra, 29
Cal.App.5th at p. 51.)
• “For purposes of section 340.6, ‘actual injury occurs when the plaintiff sustains
any loss or injury legally cognizable as damages in a legal malpractice action
based on the acts or omissions that the plaintiff alleged.’ While ‘nominal
damages will not end the tolling of section 340.6’s limitations period,’ it is ‘the
fact of damage, rather than the amount, [that] is the critical factor.’ ” (Genisman,
supra, 29 Cal.App.5th at p. 52, internal citation omitted.)
• “Actual injury refers only to the legally cognizable damage necessary to assert
the cause of action. There is no requirement that an adjudication or settlement
must first confirm a causal nexus between the attorney’s error and the asserted
injury. The determination of actual injury requires only a factual analysis of the
claimed error and its consequences.” (Truong v. Glasser (2009) 181 Cal.App.4th
102, 113 [103 Cal.Rptr.3d 811].)
• “ ‘[S]ection 340.6, subdivision (a)(1), will not toll the limitations period once the
client can plead damages that could establish a cause of action for legal
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malpractice.’ ‘[T]he limitations period is not tolled after the plaintiff sustains
actual injury [even] if the injury is, in some sense, remediable. [Citation.]
Furthermore, the statutory scheme does not depend on the plaintiff’s recognizing
actual injury. Actual injury must be noticeable, but the language of the tolling
provision does not require that it be noticed.’ On the other hand, ‘the statute of
limitations will not run during the time the plaintiff cannot bring a cause of
action for damages from professional negligence’ because the plaintiff cannot
allege actual injury resulted from an attorney’s malpractice.” (Croucier v. Chavos
(2012) 207 Cal.App.4th 1138, 1148 [144 Cal.Rptr.3d 180], internal citations
omitted.)
• “[A]ctual injury exists even if the client has yet to ‘sustain[] all, or even the
greater part, of the damages occasioned by his attorney’s negligence’; even if the
client will encounter ‘difficulty in proving damages’; and even if that damage
might be mitigated or entirely eliminated in the future. [¶] However, ‘actual
injury’ does not include ‘speculative and contingent injuries . . . that do not yet
exist . . . .’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn
& Associates, APC (2015) 238 Cal.App.4th 1031, 1036 [190 Cal.Rptr.3d 90],
internal citations omitted.)
• “[B]ecause ‘determining actual injury is predominately a factual inquiry’ to the
extent a question remains on this point, the matter is properly resolved by the
trier of fact . . . .” (Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194
Cal.App.4th 557, 576 [125 Cal.Rptr.3d 120].)
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037–1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6, discovery
of the negligent act or omission initiates the statutory period, and the absence of
injury or damages serves as a tolling factor.” (Adams v. Paul (1995) 11 Cal.4th
583, 589, fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute of
limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273, 989
P.2d 701], internal citations omitted.)
• “[D]efendant, if he is to avail himself of the statute’s one-year-from-discovery
limitation defense, has the burden of proving, under the ‘traditional allocation of
the burden of proof’ that plaintiff discovered or should have discovered the facts
alleged to constitute defendant’s wrongdoing more than one year prior to filing
this action.” (Samuels, supra, 22 Cal.4th at pp. 8–9, internal citations omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
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wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6
Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “We hold that a cause of action for legal malpractice does not accrue until the
client discovers, or should discover, the facts establishing the elements of his
cause of action.” (Neel, supra, 6 Cal.3d at p. 194.)
• “ ‘[W]here there is a professional relationship, the degree of diligence in
ferreting out the negligence for the purpose of the statute of limitations is
diminished. [Citation.]’ ” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 315 [166 Cal.Rptr.3d 116].)
• “If the allegedly negligent conduct does not cause damage, it generates no cause
of action in tort. The mere breach of a professional duty, causing only nominal
damages, speculative harm, or the threat of future harm—not yet realized—does
not suffice to create a cause of action for negligence. Hence, until the client
suffers appreciable harm as a consequence of his attorney’s negligence, the client
cannot establish a cause of action for malpractice.” (Budd v. Nixen (1971) 6
Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal citations omitted.)
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses a
particular phase of such a relationship-representation regarding a specific subject
matter. Moreover, the limitations period is not tolled when an attorney’s
subsequent role is only tangentially related to the legal representation the
attorney provided to the plaintiff. Therefore, “[t]he inquiry is not whether an
attorney-client relationship still exists but when the representation of the specific
matter terminated.” ’ Tolling does not apply where there is a continuing
relationship between the attorney and client ‘involving only unrelated matters.’ ”
(Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1064 [109 Cal.Rptr.3d 392],
original italics, internal citations omitted.)
• “[W]here a client hires a law firm to represent it, the provisions of section 340.6
apply to that firm; the term ‘attorney’ in section 340.6 may embrace the entire
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partnership, law corporation, or other legal entity the client retains. [¶] That
either an attorney or a firm may be the subject of an action does not support a
reading under which representation by one attorney or firm might toll the
limitations period as to another no longer affiliated attorney or firm. Rather, the
text implies an action against a law firm is tolled so long as that firm continues
representation, just as an action against an attorney is tolled so long as that
attorney continues representation, but representation by one attorney or firm does
not toll claims that may exist against a different, unaffiliated attorney or firm.”
(Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 509 [66
Cal.Rptr.3d 52, 167 P.3d 666], original italics.)
• “ ‘[W]hen an attorney leaves a firm and takes a client with him or her, . . . the
tolling in ongoing matters [does not] continue for claims against the former firm
and partners.’ ” (Stueve Bros. Farms, LLC, supra, 222 Cal.App.4th at p. 314.)
• “ ‘Ordinarily, an attorney’s representation is not completed until the agreed tasks
or events have occurred, the client consents to termination or a court grants an
application by counsel for withdrawal.’ ‘The rule is that, for purposes of the
statute of limitations, the attorney’s representation is concluded when the parties
so agree, and that result does not depend upon formal termination, such as
withdrawing as counsel of record.’ ‘Continuity of representation ultimately
depends, not on the client’s subjective beliefs, but rather on evidence of an
ongoing mutual relationship and of activities in furtherance of the relationship.’ ”
(Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049 [69 Cal.Rptr.3d 435],
internal citations omitted.)
• “[T]he continuous representation tolling provision in section 340.6, subdivision
(a)(2), applies to toll legal malpractice claims brought by successor trustees
against attorneys who represented the predecessor trustee.” (Kelly, supra, 243
Cal.App.4th at p. 951.)
• “[A]bsent a statutory standard to determine when an attorney’s representation of
a client regarding a specific subject matter ends, and consistent with the purposes
of the continuing representation rule, we conclude that for purposes of . . .
section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral
withdrawal or abandonment of the client, the representation ends when the client
actually has or reasonably should have no expectation that the attorney will
provide further legal services. . . . That may occur upon the attorney’s express
notification to the client that the attorney will perform no further services, or, if
the attorney remains silent, may be inferred from the circumstances. Absent
actual notice to the client that the attorney will perform no further legal services
or circumstances that reasonably should cause the client to so conclude, a client
should be entitled to rely on an attorney to perform the agreed services and
should not be required to interrupt the attorney-client relationship by filing a
malpractice complaint. After a client has no reasonable expectation that the
attorney will provide further legal services, however, the client is no longer
hindered by a potential disruption of the attorney-client relationship and no
longer relies on the attorney’s continuing representation, so the tolling should
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end. To this extent and for these reasons, we conclude that continuous
representation should be viewed objectively from the client’s perspective . . . .”
(Laclette v. Galindo (2010) 184 Cal.App.4th 919, 928 [109 Cal.Rptr.3d 660],
original italics.)
• “Continuity of representation ultimately depends, not on the client’s subjective
beliefs, but rather on evidence of an ongoing mutual relationship and of
activities in furtherance of the relationship.” (GoTek Energy, Inc. v. SoCal IP
Law Group, LLP (2016) 3 Cal.App.5th 1240, 1248 [208 Cal.Rptr.3d 428],
original italics.)
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
not enumerated in the statute.” (Laird v. Blacker (1992) 2 Cal.4th 606, 618 [7
Cal.Rptr.2d 550, 828 P.2d 691] [applying rule to one-year limitation period]; cf.
Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d
107, 978 P.2d 591] [substantially similar language in Code Civ. Proc., § 340.5,
applicable to medical malpractice, construed to apply only to three-year
limitation period].)
• “[T]he fourth tolling provision of section 340.6, subdivision (a)—that is, the
provision applicable to legal and physical disabilities—encompasses the
circumstances set forth in section 351 [exception, where defendant is out of the
state].” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 569 [107
Cal.Rptr.3d 539].)
• “[A] would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning
of section 352.1 if he or she is serving a term of imprisonment in the state
prison.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [230 Cal.Rptr.3d
528].)
• “In light of the Legislature’s intent that section 340.6(a) cover more than claims
for legal malpractice, the term ‘professional services’ is best understood to
include nonlegal services governed by an attorney’s professional obligations.”
(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 [191 Cal.Rptr.3d 536, 354 P.3d
334].)
• “For purposes of section 340.6(a), the question is not simply whether a claim
alleges misconduct that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed, necessarily depends on
proof that an attorney violated a professional obligation as opposed to some
generally applicable nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p.
1238.)
• “Lee held that ‘section 340.6(a)’s time bar applies to claims whose merits
necessarily depend on proof that an attorney violated a professional obligation in
the course of providing professional services. In this context, a “professional
obligation” is an obligation that an attorney has by virtue of being an attorney,
such as fiduciary obligations, the obligation to perform competently, the
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obligation to perform the services contemplated in a legal services contract into
which an attorney has entered, and the obligations embodied in the State Bar
Rules of Professional Conduct.’ ” (Foxen v. Carpenter (2016) 6 Cal.App.5th 284,
292 [211 Cal.Rptr.3d 372].)
• “In sum, consistent with Lee, section 340.6(a) applies to malicious prosecution
claims against attorneys who performed professional services in the underlying
litigation.” (Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 799 [245
Cal.Rptr.3d 452].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 626–655
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§§ 76.170, 76.430 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
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611. Affirmative Defense—Statute of Limitations—Attorney
Malpractice—Four-Year Limit (Code Civ. Proc., § 340.6)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [his/her/nonbinary pronoun/its] alleged
wrongful act or omission occurred before [insert date four years before
date of filing].
[If, however, [name of plaintiff] proves
[Choose one or more of the following four options:]
[that [he/she/nonbinary pronoun/it] did not sustain actual injury until
on or after [insert date four years before date of filing]][,/; or]]
[that on or after [insert date four years before date of filing] [name of
defendant] continued to represent [name of plaintiff] regarding the specific
subject matter in which the wrongful act or omission occurred[,/; or]]
[that on or after [insert date four years before date of filing] [name of
defendant] knowingly concealed the facts constituting the wrongful act or
omission[,/; or]]
[that on or after [insert date four years before date of filing]
[he/she/nonbinary pronoun/it] was under a legal or physical disability that
restricted [his/her/nonbinary pronoun/its] ability to file a lawsuit[,/;]]
the period within which [name of plaintiff] had to file the lawsuit is
extended for the amount of time that [insert tolling provision, e.g., [name
of defendant] knowingly concealed the facts].]
New April 2007; Revised April 2009
Directions for Use
Use CACI No. 610, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit, if the one-year limitation provision is at issue.
If no tolling provision from Code of Civil Procedure section 340.6 is at issue, read
only through the end of the first paragraph. Read the rest of the instruction if there
is a question of fact concerning a tolling provision. If so, the verdict form should
ask the jury to find (1) the date on which the alleged wrongful act or omission
occurred; (2) whether the tolling provision applies; and (3) if so, for what period of
time. The court can then add the additional time to the date on which the alleged
wrongful act or omission occurred and determine whether the action is timely.
The court may need to define the term “actual injury” depending on the facts and
circumstances of the particular case.
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Sources and Authority
• Statute of Limitation for Attorney Malpractice. Code of Civil Procedure section
340.6.
• Persons Under Disabilities. Code of Civil Procedure section 352.
• “Under section 340.6, the one-year limitations period commences when the
plaintiff actually or constructively discovers the facts of the wrongful act or
omission, but the period is tolled until the plaintiff sustains actual injury. That is
to say, the statute of limitations will not run during the time the plaintiff cannot
bring a cause of action for damages from professional negligence.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751 [76
Cal.Rptr.2d 749, 958 P.2d 1062].)
• “Actual injury refers only to the legally cognizable damage necessary to assert
the cause of action. There is no requirement that an adjudication or settlement
must first confirm a causal nexus between the attorney’s error and the asserted
injury. The determination of actual injury requires only a factual analysis of the
claimed error and its consequences. The inquiry necessarily is more qualitative
than quantitative because the fact of damage, rather than the amount, is the
critical factor.” (Truong v. Glasser (2009) 181 Cal.App.4th 102, 113 [103
Cal.Rptr.3d 811].)
• “ ‘[S]ection 340.6, subdivision (a)(1), will not toll the limitations period once the
client can plead damages that could establish a cause of action for legal
malpractice.’ ‘[T]he limitations period is not tolled after the plaintiff sustains
actual injury [even] if the injury is, in some sense, remediable. [Citation.]
Furthermore, the statutory scheme does not depend on the plaintiff’s recognizing
actual injury. Actual injury must be noticeable, but the language of the tolling
provision does not require that it be noticed.’ On the other hand, ‘the statute of
limitations will not run during the time the plaintiff cannot bring a cause of
action for damages from professional negligence’ because the plaintiff cannot
allege actual injury resulted from an attorney’s malpractice.” (Croucier v. Chavos
(2012) 207 Cal.App.4th 1138, 1148 [144 Cal.Rptr.3d 180], internal citations
omitted.)
• “[A]ctual injury exists even if the client has yet to ‘sustain[] all, or even the
greater part, of the damages occasioned by his attorney’s negligence’; even if the
client will encounter ‘difficulty in proving damages’; and even if that damage
might be mitigated or entirely eliminated in the future. [¶] However, ‘actual
injury’ does not include ‘speculative and contingent injuries . . . that do not yet
exist . . . .’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn
& Associates, APC (2015) 238 Cal.App.4th 1031, 1036 [190 Cal.Rptr.3d 90],
internal citations omitted.)
• “[B]ecause ‘determining actual injury is predominately a factual inquiry’ to the
extent a question remains on this point, the matter is properly resolved by the
trier of fact . . . .” (Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194
Cal.App.4th 557, 576 [125 Cal.Rptr.3d 120].)
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• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037–1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6, discovery
of the negligent act or omission initiates the statutory period, and the absence of
injury or damages serves as a tolling factor.” (Adams v. Paul (1995) 11 Cal.4th
583, 598 fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute of
limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273, 989
P.2d 701], internal citations omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6
Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “If the allegedly negligent conduct does not cause damage, it generates no cause
of action in tort. The mere breach of a professional duty, causing only nominal
damages, speculative harm, or the threat of future harm—not yet realized—does
not suffice to create a cause of action for negligence. Hence, until the client
suffers appreciable harm as a consequence of his attorney’s negligence, the client
cannot establish a cause of action for malpractice.” (Budd v. Nixen (1971) 6
Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal citations omitted.)
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses a
particular phase of such a relationship-representation regarding a specific subject
matter. Moreover, the limitations period is not tolled when an attorney’s
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subsequent role is only tangentially related to the legal representation the
attorney provided to the plaintiff. Therefore, “[t]he inquiry is not whether an
attorney-client relationship still exists but when the representation of the specific
matter terminated.” ’ Tolling does not apply where there is a continuing
relationship between the attorney and client ‘involving only unrelated matters.’ ”
(Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1064 [109 Cal.Rptr.3d 392],
original italics, internal citations omitted.)
• “[W]here a client hires a law firm to represent it, the provisions of section 340.6
apply to that firm; the term ‘attorney’ in section 340.6 may embrace the entire
partnership, law corporation, or other legal entity the client retains. [¶] That
either an attorney or a firm may be the subject of an action does not support a
reading under which representation by one attorney or firm might toll the
limitations period as to another no longer affiliated attorney or firm. Rather, the
text implies an action against a law firm is tolled so long as that firm continues
representation, just as an action against an attorney is tolled so long as that
attorney continues representation, but representation by one attorney or firm does
not toll claims that may exist against a different, unaffiliated attorney or firm.”
(Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 509 [66
Cal.Rptr.3d 52, 167 P.3d 666], original italics.)
• “ ‘[W]hen an attorney leaves a firm and takes a client with him or her, . . . the
tolling in ongoing matters [does not] continue for claims against the former firm
and partners.’ ” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 314 [166 Cal.Rptr.3d 116].)
• “ ‘Ordinarily, an attorney’s representation is not completed until the agreed tasks
or events have occurred, the client consents to termination or a court grants an
application by counsel for withdrawal.’ ‘The rule is that, for purposes of the
statute of limitations, the attorney’s representation is concluded when the parties
so agree, and that result does not depend upon formal termination, such as
withdrawing as counsel of record.’ ‘Continuity of representation ultimately
depends, not on the client’s subjective beliefs, but rather on evidence of an
ongoing mutual relationship and of activities in furtherance of the relationship.’ ”
(Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049 [69 Cal.Rptr.3d 435],
internal citations omitted.)
• “[T]he continuous representation tolling provision in section 340.6, subdivision
(a)(2), applies to toll legal malpractice claims brought by successor trustees
against attorneys who represented the predecessor trustee.” (Kelly, supra, 243
Cal.App.4th at p. 951.)
• “[A]bsent a statutory standard to determine when an attorney’s representation of
a client regarding a specific subject matter ends, and consistent with the purposes
of the continuing representation rule, we conclude that for purposes of . . .
section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral
withdrawal or abandonment of the client, the representation ends when the client
actually has or reasonably should have no expectation that the attorney will
provide further legal services. . . . That may occur upon the attorney’s express
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notification to the client that the attorney will perform no further services, or, if
the attorney remains silent, may be inferred from the circumstances. Absent
actual notice to the client that the attorney will perform no further legal services
or circumstances that reasonably should cause the client to so conclude, a client
should be entitled to rely on an attorney to perform the agreed services and
should not be required to interrupt the attorney-client relationship by filing a
malpractice complaint. After a client has no reasonable expectation that the
attorney will provide further legal services, however, the client is no longer
hindered by a potential disruption of the attorney-client relationship and no
longer relies on the attorney’s continuing representation, so the tolling should
end. To this extent and for these reasons, we conclude that continuous
representation should be viewed objectively from the client’s perspective . . . .”
(Laclette v. Galindo (2010) 184 Cal.App.4th 919, 928 [109 Cal.Rptr.3d 660],
original italics.)
• “Continuity of representation ultimately depends, not on the client’s subjective
beliefs, but rather on evidence of an ongoing mutual relationship and of
activities in furtherance of the relationship.” (GoTek Energy, Inc. v. SoCal IP
Law Group, LLP (2016) 3 Cal.App.5th 1240, 1248 [208 Cal.Rptr.3d 428],
original italics.)
• “[T]he fourth tolling provision of section 340.6, subdivision (a)—that is, the
provision applicable to legal and physical disabilities—encompasses the
circumstances set forth in section 351 [exception, where defendant is out of the
state].” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 569 [107
Cal.Rptr.3d 539].)
• “[A] would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning
of section 352.1 if he or she is serving a term of imprisonment in the state
prison.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [230 Cal.Rptr.3d
528].)
• “In light of the Legislature’s intent that section 340.6(a) cover more than claims
for legal malpractice, the term ‘professional services’ is best understood to
include nonlegal services governed by an attorney’s professional obligations.”
(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 [191 Cal.Rptr.3d 536, 354 P.3d
334].)
• “For purposes of section 340.6(a), the question is not simply whether a claim
alleges misconduct that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed, necessarily depends on
proof that an attorney violated a professional obligation as opposed to some
generally applicable nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p.
1238.)
• “Lee held that ‘section 340.6(a)’s time bar applies to claims whose merits
necessarily depend on proof that an attorney violated a professional obligation in
the course of providing professional services. In this context, a “professional
obligation” is an obligation that an attorney has by virtue of being an attorney,
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such as fiduciary obligations, the obligation to perform competently, the
obligation to perform the services contemplated in a legal services contract into
which an attorney has entered, and the obligations embodied in the State Bar
Rules of Professional Conduct.’ ” (Foxen v. Carpenter (2016) 6 Cal.App.5th 284,
292 [211 Cal.Rptr.3d 372].)
• “In sum, consistent with Lee, section 340.6(a) applies to malicious prosecution
claims against attorneys who performed professional services in the underlying
litigation.” (Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 799 [245
Cal.Rptr.3d 452].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 626–655
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§§ 76.170, 76.430 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
612–699. Reserved for Future Use
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MOTOR VEHICLES AND HIGHWAY SAFETY
700. Basic Standard of Care
701. Definition of Right-of-Way
702. Waiver of Right-of-Way
703. Definition of “Immediate Hazard”
704. Left Turns (Veh. Code, § 21801)
705. Turning (Veh. Code, § 22107)
706. Basic Speed Law (Veh. Code, § 22350)
707. Speed Limit (Veh. Code, § 22352)
708. Maximum Speed Limit (Veh. Code, §§ 22349, 22356)
709. Driving Under the Influence (Veh. Code, §§ 23152, 23153)
710. Duties of Care for Pedestrians and Drivers in Crosswalk (Veh. Code, § 21950)
711. The Passenger’s Duty of Care for Own Safety
712. Affirmative Defense—Failure to Wear a Seat Belt
713–719. Reserved for Future Use
720. Motor Vehicle Owner Liability—Permissive Use of Vehicle
721. Motor Vehicle Owner Liability—Affirmative Defense—Use Beyond Scope of
Permission
722. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
723. Liability of Cosigner of Minor’s Application for Driver’s License
724. Negligent Entrustment of Motor Vehicle
725–729. Reserved for Future Use
730. Emergency Vehicle Exemption (Veh. Code, § 21055)
731. Definition of “Emergency” (Veh. Code, § 21055)
732–799. Reserved for Future Use
VF-700. Motor Vehicle Owner Liability—Permissive Use of Vehicle
VF-701. Motor Vehicle Owner Liability—Permissive Use of Vehicle—Affirmative
Defense—Use Beyond Scope of Permission
VF-702. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
VF-703. Liability of Cosigner of Minor’s Application for Driver’s License
VF-704. Negligent Entrustment of Motor Vehicle
VF-705–VF-799. Reserved for Future Use
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700. Basic Standard of Care
A person must use reasonable care in driving a vehicle. Drivers must
keep a lookout for pedestrians, obstacles, and other vehicles. They must
also control the speed and movement of their vehicles. The failure to use
reasonable care in driving a vehicle is negligence.
New September 2003
Directions for Use
This instruction states the common-law standard of reasonable care in driving. It
applies to negligent conduct that is not covered by provisions of the Vehicle Code:
“Aside from the mandate of the statute, the driver of a motor vehicle is bound to
use reasonable care to anticipate the presence on the streets of other persons having
equal rights with himself to be there.” (Zarzana v. Neve Drug Co. (1919) 180 Cal.
32, 37 [179 P. 203].)
The instructions in this series should be used in conjunction with instructions on the
elements of negligence contained in the negligence series.
Sources and Authority
• The common-law duty supplements statutory driving regulations: “[A driver is]
under a duty, both by statute and common law, to operate his vehicle without
negligence so as to abstain from injuring any other person or his property.”
(Bewley v. Riggs (1968) 262 Cal.App.2d 188, 194 [68 Cal.Rptr. 520].)
• The standard of care is that of a reasonably careful person under the
circumstances: “[The driver] was required to act as a reasonably prudent person
under the same or similar circumstances . . . .” (Watkins v. Ohman (1967) 251
Cal.App.2d 501, 502–503 [59 Cal.Rptr. 709].)
• “ ‘The degree of care required in watching the movements of a particular
machine depends upon the facts and circumstances existing at the time and place
of the accident’ and a driver is required to use that degree of care, only, which
would be required of a reasonably prudent driver under similar circumstances.”
(Whitford v. Pacific Gas and Electric Co. (1955) 136 Cal.App.2d 697, 702 [289
P.2d 278], internal citations omitted.)
• The common-law requirement goes to the issues of lookout and control.
Regardless of whether a driver was complying with the speed limit, “[he was]
still bound to anticipate that he might meet persons at any point of the street and
in order to avoid a charge of negligence he was bound to use ordinary care and
to keep an ordinarily careful lookout for such persons and keep his machine
under such control as would enable him to avoid a collision.” (Boccalero v.
Wadleigh (1931) 113 Cal.App. 376, 379 [298 P. 526], internal citation omitted.)
• “The operator of a vehicle must keep a proper lookout for other vehicles or
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persons on the highway and must keep his car under such control as will enable
him to avoid a collision; failure to keep such a lookout constitutes negligence.”
(Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519,
524 [113 Cal.Rptr. 277].)
• On the lookout requirement, one court observed: “The driver of an automobile is
bound to use reasonable care to anticipate the presence on the highway of others
who have equal right to be there and the fact that his vision is temporarily
interfered with, either by the glaring sun or headlights, does not relieve him
from that duty.” (Hill v. Peres (1934) 136 Cal.App. 132, 137 [28 P.2d 946],
internal citations omitted.)
• On the control requirement, one court observed: “Cases in which the problem
has been presented adhere to the view that a driver must at all times exercise
ordinary care to avoid a collision including swerving or altering his course, in
addition to applying his brakes, if that would be a reasonable means of avoiding
the collision.” (Guyton v. City of Los Angeles (1959) 174 Cal.App.2d 354, 362
[344 P.2d 910].)
• “The age of a minor who operates a motor vehicle will not excuse him from
liability for driving it in a negligent manner, and he will be required to meet the
standard established primarily for adults.” (Prichard v. Veterans Cab Co. (1965)
63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360].)
• Drivers with mental disabilities are required to exercise the ordinary care
required of an adult without such disability. (Fox v. City and County of San
Francisco (1975) 47 Cal.App.3d 164, 173 [120 Cal.Rptr. 779].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.1–4.5
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.01 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.10 (Matthew Bender)
California Civil Practice: Torts § 25:22 (Thomson Reuters)
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701. Definition of Right-of-Way
When the law requires a [driver/pedestrian] to “yield the right-of-way”
to [another/a] [vehicle/pedestrian], this means that the
[driver/pedestrian] must let the [other] [vehicle/pedestrian] go first.
Even if someone has the right-of-way, that person must use reasonable
care to avoid an accident.
New September 2003
Directions for Use
This instruction should be given following a reading of the appropriate Vehicle
Code section.
If the case involves a statutory right-of-way, the jury could also be given
instructions on negligence per se, if applicable.
Sources and Authority
• “Right of Way” Defined. Vehicle Code section 525.
• Intersection Right of Way. Vehicle Code section 21800.
• Left Turn Right of Way. Vehicle Code section 21801.
• Approaching Entrance to Intersection. Vehicle Code section 21802.
• Intersection Controlled by Yield Right-of-Way Sign. Vehicle Code section 21803.
• Entry Onto Highway. Vehicle Code section 21804.
• Equestrian Crossings. Vehicle Code section 21805.
• Authorized Emergency Vehicles. Vehicle Code section 21806.
• “Right of way rules have been described as simply establishing ‘a practical basis
for necessary courtesy on the highway.’ ” (Eagar v. McDonnell Douglas Corp.
(1973) 32 Cal.App.3d 116, 122 [107 Cal.Rptr. 819].)
• “[A] driver entering a public highway from private property who collides with a
vehicle traveling on the public road is not necessarily liable for a violation of
[Vehicle Code] section 21804. Rather, the driver violates this section only if he
or she fails to act as a ‘ “reasonably prudent and cautious [person].” ’ Whether
the driver failed to so act is a question of fact for the trier of fact to decide.”
(Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 266 [155 Cal.Rptr.3d
306], internal citation omitted.)
• “Of course, even if [defendant] had the right of way, he had a duty to exercise
reasonable care to avoid an accident, and the jury was so instructed.” (Eagar,
supra, 32 Cal.App.3d. at p. 123, fn. 3, internal citation omitted.)
• “Where a car has actually entered an intersection before the other approaches it,
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the driver of the first car has the right to assume that he will be given the right
of way and be permitted to pass through the intersection without danger of
collision. He has a right to assume that the driver of the other car will obey the
law, slow down, and yield the right of way, if slowing down be necessary to
prevent a collision.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 508 [208
Cal.Rptr.3d 655].)
• “When, as here, each motorist has acted reasonably and the pedestrian has failed
to exercise due care for her own safety, the law of this state does not permit the
technical violation of the pedestrian’s right of way statute to impose negligence
on the motorists as a matter of law. The statute creates a preferential, but not
absolute, right in favor of the pedestrian who is still under a duty to exercise
ordinary care.” (Byrne v. City and County of San Francisco (1980) 113
Cal.App.3d 731, 742 [170 Cal.Rptr. 302].)
• “ ‘Even where a right of way is given by statute, if conditions so require it to
avoid injury to others, the right of way must be yielded.’ ” (Bove v. Beckman
(1965) 236 Cal.App.2d 555, 563 [46 Cal.Rptr. 164], internal citation omitted.)
• “Although such a driver may have the right-of-way, he is not absolved of the
duty to exercise ordinary care; may not proceed blindly in disregard of an
obvious danger; and must be watchful of the direction in which danger is most
likely to be apprehended.” (Malone v. Perryman (1964) 226 Cal.App.2d 227,
234 [37 Cal.Rptr. 864].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1010, 1011
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, § 4.15
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§§ 82.10, 82.68 (Matthew Bender)
California Civil Practice: Torts § 25:26 (Thomson Reuters)
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702. Waiver of Right-of-Way
A [driver/pedestrian] who has the right-of-way may give up that right
and let another person go first. If the other person reasonably believes
that a [driver/pedestrian] has given up the right-of-way, then the other
person may go first.
New September 2003; Revised May 2020, May 2021
Sources and Authority
• “[I]f one who has the right of way ‘conducts himself in such a definite manner
as to create a reasonable belief in the mind of another person that the right-of-
way has been waived, then such other person is entitled to assume that the right
of way has been given up to him . . .’.” (Hopkins v. Tye (1959) 174 Cal.App.2d
431, 433 [344 P.2d 640].)
• “A conscious intentional act of waiver of the right of way by the pedestrian is
not required. Whether there is a waiver depends upon the acts of the pedestrian.
If they are such that a driver could reasonably believe that the pedestrian did not
intend to assert her right of way, a waiver occurs.” (Cohen v. Bay Area Pie
Company (1963) 217 Cal.App.2d 69, 72–73 [31 Cal.Rptr. 426], internal citation
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1010, 1011
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.15
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68[1][c] (Matthew
Bender)
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703. Definition of “Immediate Hazard”
The statute just read to you uses the words “immediate hazard.” An
immediate hazard exists if the approaching vehicle is so near or is
approaching so fast that a reasonably careful person would realize that
there is a danger of collision [or accident].
New September 2003
Directions for Use
This instruction is designed to be given as a supplement to the several Vehicle Code
provisions that contain the term “immediate hazard.” (Veh. Code, §§ 21802
[Approaching intersection entrance], 21803 [Yield right of way], 21804 [Public or
private property], 21805 [Equestrian crossings], 21950 [Crosswalks], 21953 [Tunnel
or overhead crossing], 21954 [Pedestrian outside crosswalk], 22451 [Train signals].)
Sources and Authority
• “It is to be noted that the legislature has not set a hard and fast rule for the
conduct of drivers approaching through highways but has provided the general
rule that such drivers must yield the right of way to others traveling on the
highway who are approaching so closely as to constitute ‘an immediate hazard.’
Our complex traffic problems are such that the circumstances of the traffic on a
through highway as a driver approaches must govern his conduct in determining
whether it is an immediate hazard. Whether a driver acts with due care or
negligently in proceeding across a through highway must as a general rule be
left to the determination of the jury in view of all the circumstances.” (Wilkinson
v. Marcellus (1952) 51 Cal.App.2d 630, 633 [125 P.2d 584].)
• At least one court has held that the term “immediate hazard” should be defined
for the jury if a party so requests. (Hickenbottom v. Jeppesen (1956) 144
Cal.App.2d 115, 121 [300 P.2d 689].) However, any error in failing to define the
term will be considered harmless if other instructions cover that point: “The
words ‘immediate hazard’ seem reasonably clear in the context in which they
appear, both in the statute and in the instruction given; the hazard of a collision.”
(Ibid.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1010, 1011
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.10–4.11
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704. Left Turns (Veh. Code, § 21801)
The statute just read to you uses the word “hazard.” A “hazard” exists if
any approaching vehicle is so near or is approaching so fast that a
reasonably careful person would realize that there is a danger of a
collision [or accident].
[A driver who is attempting to make a left turn must make sure that no
oncoming vehicles are close enough to be a hazard before the driver
proceeds across each lane.]
New September 2003; Revised May 2020
Directions for Use
The bracketed paragraph should be given in appropriate cases involving multiple
lanes of oncoming traffic. (Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 227 [268
Cal.Rptr. 70].)
Sources and Authority
• Duty to Yield Right of Way: Left Turn. Vehicle Code section 21801(a).
• “We hold section 21802, subdivision (a), requires that where, as here, some, but
not all, of the oncoming vehicles have yielded their right-of-way to a left-turning
driver, that driver has a continuing duty during the turning movement to
ascertain, before proceeding across the next open lane(s), if any vehicle is
approaching from the opposite direction so close as to constitute a hazard.”
(Sesler, supra, 219 Cal.App.3d at pp. 224–225)
• Noting that in 1957 the Legislature added the phrase “at any time during the
turning movement” to this section, the court in In re Kirk (1962) 202 Cal.App.2d
288, 291 [20 Cal.Rptr. 787], reasoned that “if the oncoming vehicle in the lane
closest to the left turning vehicle surrenders its right of way by indicating to the
operator of the left turning vehicle that it desires him to proceed, such operator
may not proceed beyond that first lane of traffic, now effectively blocked by the
waiving vehicle, if in fact other vehicles approaching in any of the other
oncoming lanes will constitute a hazard to the left turning vehicle during the
turning movement.”
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1010, 1011
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.10–4.11
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68[2][g] (Matthew
Bender)
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705. Turning (Veh. Code, § 22107)
A driver must use reasonable care when turning [or moving to the right
or to the left].
New September 2003
Directions for Use
An instruction on this point should be given only if the jury is instructed on Vehicle
Code section 22107. It should be read after that section has been given. (Anderson
v. Latimer (1985) 166 Cal.App.3d 667, 672–673 [212 Cal.Rptr. 544].)
Sources and Authority
• Turning and Changing Lanes. Vehicle Code section 22107.
• “This provision does not require the driver to know that a turn can be made with
safety but only that he must exercise reasonable care, and whether such care has
been exercised is normally a question of fact.” (Butigan v. Yellow Cab Co.
(1958) 49 Cal.2d 652, 656 [320 P.2d 500].)
• Courts have held that a reading of section 22107 should be followed by an
instruction clarifying that the driver is under a duty to exercise only as much
care as a reasonably prudent person when making a turn or movement: “An
instruction to a jury concerning Vehicle Code, section 544 [now 22107] must
make it clear that the driver who is about to turn must exercise such care as
would a reasonably prudent man under similar circumstances, no more and no
less.” (Lewis v. Franklin (1958) 161 Cal.App.2d 177, 184 [326 P.2d 625].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1014, 1015, 1017
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.10–4.11
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.67 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§§ 82.66, 82.67 (Matthew Bender)
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706. Basic Speed Law (Veh. Code, § 22350)
A person must drive at a reasonable speed. Whether a particular speed
is reasonable depends on the circumstances such as traffic, weather,
visibility, and road conditions. Drivers must not drive so fast that they
create a danger to people or property.
If [name of plaintiff/defendant] has proved that [name of defendant/plaintiff]
was not driving at a reasonable speed at the time of the accident, then
[name of defendant/plaintiff] was negligent.
New September 2003; Revised December 2016
Directions for Use
Driving at an unreasonable speed is negligence per se (see Hert v. Firestone Tire &
Rubber Co. (1935) 4 Cal.App.2d 598, 599 [41 P.2d 369]), which establishes the first
element of CACI No. 400, Negligence—Essential Factual Elements. Plaintiff must
still prove the other two elements of harm and causation. (See CACI No. 430,
Causation: Substantial Factor.)
Sources and Authority
• Speeding. Vehicle Code section 22350.
• “The so-called basic speed law is primarily a regulation of the conduct of the
operators of vehicles. They are bound to know the conditions which dictate the
speeds at which they can drive with a reasonable degree of safety. They know,
or should know, their cars and their own ability to handle them, and especially
their ability to come to a stop at different speeds and under different conditions
of the surface of the highway.” (Wilding v. Norton (1957) 156 Cal.App.2d 374,
379 [319 P.2d 440].)
• “Whether Vehicle Code section 22350 has been violated is a question of fact.”
(Leighton v. Dodge (1965) 236 Cal.App.2d 54, 57 [45 Cal.Rptr. 820], internal
citation omitted.)
• “A number of cases have held that it is proper to give an instruction in the terms
of this section and to inform the jury that a violation of the statute is
negligence.” (Hardin v. San Jose City Lines, Inc. (1953) 41 Cal.2d 432, 438 [260
P.2d 63].)
• Compliance with the posted speed law does not negate negligence as a matter of
law. (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 186 [163 Cal.Rptr. 912].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1009
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.16
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2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[3][a] (Matthew
Bender)
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707. Speed Limit (Veh. Code, § 22352)
The speed limit where the accident occurred was [insert number] miles
per hour.
The speed limit is a factor to consider when you decide whether or not
[name of plaintiff/name of defendant] was negligent. A driver is not
necessarily negligent just because the driver was driving faster than the
speed limit. However, a driver may be negligent even if the driver was
driving at or below the speed limit.
New September 2003; Revised May 2020
Sources and Authority
• Speed Limits. Vehicle Code section 22352.
• Speeding as Negligence. Vehicle Code section 40831.
• A party is entitled to an instruction that the prima facie speed limit is a factor
for the jury to consider in making its negligence determination. (Hardin v. San
Jose City Lines, Inc. (1953) 41 Cal.2d 432, 439 [260 P.2d 63].)
• “The mere driving of an automobile in excess of the speed limit does not show
negligence as a matter of law. The jury was free to find [defendant] not guilty of
negligence even if they found that he was exceeding the speed limit.” (Williams
v. Cole (1960) 181 Cal.App.2d 70, 74 [5 Cal.Rptr. 24], internal citations
omitted.)
• The burden of proving negligence in a civil action is on the party charging
negligence, and even if such party has established speed in excess of the
applicable prima facie limit the party must establish negligence under the
circumstances. (Faselli v. Southern Pacific Co. (1957) 150 Cal.App.2d 644, 648
[310 P.2d 698].)
• “Even though the Texaco truck was traveling at a speed less than the maximum
specified in the Vehicle Code, the reasonableness of its speed was a question of
fact under all the circumstances, and circumstances may make travel at a speed
less than the maximum rate a negligent operation of a motor vehicle.” (Scott v.
Texaco, Inc. (1966) 239 Cal.App.2d 431, 436–437 [48 Cal.Rptr. 785], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1009
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.18
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[2][c], [4] (Matthew
Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.10 (Matthew Bender)
554
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708. Maximum Speed Limit (Veh. Code, §§ 22349, 22356)
The maximum speed limit where the accident occurred was [insert
number] miles per hour.
New September 2003
Directions for Use
An instruction on maximum speed limits could be useful to help frame the issue for
the jury. On the other hand, a specific instruction on the maximum speed limits may
be unnecessary. In the event that there is sufficient evidence to support an
instruction that one of the parties violated the maximum speed limit, the judge could
give the negligence per se instructions while reciting the specific code section. In
that event, the judge would not give an instruction on the basic speed law. (See
Hargrave v. Winquist (1982) 134 Cal.App.3d 916 [185 Cal.Rptr. 30].)
Sources and Authority
• General Maximum Speed is 65 Miles Per Hour. Vehicle Code section 22349(a).
• Basic Maximum Speed for Two-Lane Undivided Highways is 55 Miles Per
Hour. Vehicle Code section 22349(b).
• Maximum Speed at Selected Locations is 70 Miles Per Hour. Vehicle Code
section 22356.
• Driving Too Slowly. Vehicle Code section 22400(a).
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1009
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.17
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[2][b], [4][b][iii]
(Matthew Bender)
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709. Driving Under the Influence (Veh. Code, §§ 23152, 23153)
The statute just read to you uses the term “under the influence.” A
driver is not necessarily “under the influence” just because the driver
has consumed some alcohol [or drugs]. A driver is “under the influence”
when the driver has consumed an amount of alcohol [or drugs] that
impairs the driver’s ability to drive in a reasonably careful manner.
New September 2003; Revised May 2020
Directions for Use
This instruction is designed to supplement a negligence per se instruction on driving
under the influence.
The presumption of intoxication based on a 0.08 blood level applies to criminal
prosecutions only. There is no statutory or case authority supporting the conclusion
that the presumption applies in civil cases. (Hyatt v. Sierra Boat Co. (1978) 79
Cal.App.3d 325, 334 [145 Cal.Rptr. 47].)
For a definition of “drug,” see Vehicle Code section 312: “The term ‘drug’ means
any substance or combination of substances, other than alcohol, which could so
affect the nervous system, brain, or muscles of a person as to impair, to an
appreciable degree, his ability to drive a vehicle in the manner that an ordinarily
prudent and cautious man, in full possession of his faculties, using reasonable care,
would drive a similar vehicle under like conditions.”
Sources and Authority
• Driving Under the Influence of Alcohol or Drugs. Vehicle Code sections
23152(a), 23153(a).
• “All of the decided cases on the subject recognize that it is negligence as a
matter of law to drive a vehicle upon a public highway while in an intoxicated
condition.” (Zamucen v. Crocker (1957) 149 Cal.App.2d 312, 316 [308 P.2d
384], internal citations omitted.)
• The term “under the influence” was first defined in People v. Dingle (1922) 56
Cal.App. 445, 449 [205 P. 705], as follows: “[I]f intoxicating liquor has so far
affected the nervous system, brain, or muscles of the driver of an automobile as
to impair, to an appreciable degree, his ability to operate his car in the manner
that an ordinarily prudent and cautious man, in the full possession of his
faculties, using reasonable care, would operate or drive a similar vehicle under
like conditions, then such driver is ‘under the influence of intoxicating liquor’
within the meaning of the statute.”
• “One is not necessarily under the influence of intoxicating liquor as the result of
taking one or more drinks. The circumstances and effect must be considered;
whether or not a person was under the influence of intoxicating liquor at a
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certain time is a question of fact for the jury to decide.” (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 217 [57 Cal.Rptr. 319].)
• Driving while “under the influence” under Vehicle Code sections 23152 and
23153 is not the same as “being under the influence” of a controlled substance
under Health and Safety Code section 11550. Under the Vehicle Code
provisions, “the defendant’s ability to drive must actually be impaired,” while
the Health and Safety Code provision is violated as soon as the influence is
present “in any detectable manner.” (People v. Enriquez (1996) 42 Cal.App.4th
661, 665 [49 Cal.Rptr.2d 710].)
• Courts have also distinguished the “under the influence” standard from the
“obvious intoxication” standard used in Business and Professions Code section
25602.1. (Jones v. Toyota Motor Co. (1988) 198 Cal.App.3d 364, 368 [243
Cal.Rptr. 611]: “ ‘Under the influence’ is defined by a person’s capability to
drive safely, whereas ‘obvious intoxication’ is defined by a person’s
appearance.”)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1014, 1015, 1017
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.25
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.02[3][b] (Matthew
Bender)
2 California Civil Practice: Torts § 25:28 (Thomson Reuters)
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710. Duties of Care for Pedestrians and Drivers in Crosswalk
(Veh. Code, § 21950)
A driver of a vehicle must yield the right-of-way to a pedestrian who is
crossing the roadway within any marked crosswalk or within any
unmarked crosswalk at an intersection. When approaching a pedestrian
who is within any marked or unmarked crosswalk, a driver must use
reasonable care and must reduce the vehicle’s speed or take any other
action necessary to ensure the safety of the pedestrian.
Pedestrians must also use reasonable care for their own safety.
Pedestrians may not suddenly leave a curb or other place of safety and
walk or run into the path of a vehicle that is so close as to constitute an
immediate hazard. Pedestrians also must not unnecessarily stop or delay
traffic while in a marked or unmarked crosswalk.
The failure of a pedestrian to exercise reasonable care does not relieve a
driver of a vehicle from the duty of exercising reasonable care for the
safety of any pedestrian within any marked crosswalk or within any
unmarked crosswalk at an intersection.
New September 2003; Revised December 2016, May 2020
Directions for Use
This instruction sets forth the respective duties of drivers and pedestrians in a
crosswalk. (See Veh. Code, § 21950.) Crosswalk accidents often present a
comparative negligence analysis based on the statutory duties of both parties.
Sources and Authority
• Right-of-Way at Crosswalks. Vehicle Code section 21950.
• Vehicles Stopped for Pedestrians at Crosswalks. Vehicle Code section 21951.
• “Driving a motor vehicle may be sufficiently dangerous to warrant special
instructions, but it is not so hazardous that it always requires ‘extreme caution.’ ”
(Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 544 [67 Cal.Rptr. 775,
439 P.2d 903], internal citations omitted.)
• “When the pedestrian suddenly leaves his place of safety, the vehicle must be so
close as to constitute an immediate hazard. Such wording [in Veh. Code,
§ 21950] indicates the statute was intended to apply to those situations where a
pedestrian unexpectedly asserts his right-of-way in an intersection at a time
when the vehicle is so close that it is virtually impossible to avoid an accident.
Typical situations include when a pedestrian steps, jumps, walks or runs directly
in front of a vehicle travelling in lanes which are adjacent to the curb or other
place of safety occupied by the pedestrian. Under such circumstances, the
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vehicle would most certainly constitute an immediate hazard to the pedestrian.”
(Spann v. Ballesty (1969) 276 Cal.App.2d 754, 761 [81 Cal.Rptr. 229], original
italics.)
• “It is undisputed that defendant did not yield the right of way to plaintiff. Such
failure constitutes a violation of the statute and negligence as a matter of law in
the absence of reasonable explanation for defendant’s conduct.” (Schmitt v.
Henderson (1969) 1 Cal.3d 460, 463 [82 Cal.Rptr 502, 462 P.2d 30].)
• “When, as here, each motorist has acted reasonably and the pedestrian has failed
to exercise due care for her own safety, the law of this state does not permit the
technical violation of the pedestrian’s right of way statute to impose negligence
on the motorists as a matter of law. The statute creates a preferential, but not
absolute, right in favor of the pedestrian who is still under a duty to exercise
ordinary care.” (Byrne v. City and County of San Francisco (1980) 113
Cal.App.3d 731, 742 [170 Cal.Rptr. 302], internal citation omitted.)
• “While it is the duty of both the driver of a motor vehicle and a pedestrian,
using a public roadway, to exercise ordinary care, that duty does not require
necessarily the same amount of caution from each. The driver of a motor
vehicle, when ordinarily careful, will be alertly conscious of the fact that he is in
charge of a machine capable of projecting into serious consequences any
negligence of his own. Thus his caution must be adequate to that responsibility
as related to all the surrounding circumstances. A pedestrian, on the other hand,
has only his own physical body to manage and with which to set in motion a
cause of injury. While, usually, that fact limits his capacity to cause injury, as
compared with a vehicle driver, still, in exercising ordinary care, he, too, will be
alertly conscious of the mechanical power acting, or that may act, on the public
roadway, and of the possible, serious consequences from any conflict between
himself and such forces. And the caution required of him is measured by the
possibilities of injury apparent to him in the conditions at hand, or that would be
apparent to a person of ordinary prudence in the same position.” (Cucinella v.
Weston Biscuit Co. (1954) 42 Cal.2d 71, 75−76, 81 [265 P.2d 513] [proposed
jury instruction correctly stated the law].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1012, 1013, 1016
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.72–4.73
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, §§ 20.10–20.12 (Matthew
Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.10 (Matthew Bender)
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711. The Passenger’s Duty of Care for Own Safety
A passenger is not required to be aware of the conditions on the highway
and is entitled to expect that a driver will use reasonable care. However,
if a passenger becomes aware of [a danger on the highway] [the driver’s
impairment or failure to use reasonable care], then the passenger must
take reasonable steps to protect the passenger’s own safety.
New September 2003; Revised May 2020
Sources and Authority
• “ ‘In the absence of some fact brought to his attention which would cause a
person of ordinary prudence to act otherwise, a passenger in an automobile has
no duty to observe traffic conditions on the highway, and his mere failure to do
so, without more, will not support a finding of contributory negligence. In other
words, an automobile passenger’s “duty to look” does not arise until some factor
of danger comes to his attention, thus charging him as a person of ordinary
prudence to take steps for his own safety. . . .’ ” (Casey v. Russell (1982) 138
Cal.App.3d 379, 386–387 [188 Cal.Rptr. 18], internal citations omitted.)
• “Even when negligence of a driver may not be imputed to him, the passenger is
bound to exercise ordinary care for his own safety. He may not shut his eyes to
an obvious danger; he may not blindly rely on the driver in approaching a place
of danger. He is normally bound to protest against actual negligence or
recklessness of the driver, the extent of his duty in this regard depending upon
the particular circumstances of each case and ordinarily being a question of fact
for the jury.” (Pobor v. Western Pacific Railroad Co. (1961) 55 Cal.2d 314, 324
[11 Cal.Rptr. 106, 359 P.2d 474], internal citations omitted.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.67–4.71
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.03[2][c] (Matthew
Bender)
2 California Civil Practice: Torts § 25:29 (Thomson Reuters)
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712. Affirmative Defense—Failure to Wear a Seat Belt
[Name of defendant] claims that [name of plaintiff] was negligent because
[he/she/nonbinary pronoun] failed to wear a seat belt. To succeed, [name of
defendant] must prove all of the following:
1. That a working seat belt was available;
2. That a reasonably careful person in [name of plaintiff]’s situation
would have used the seat belt;
3. That [name of plaintiff] failed to wear a seat belt; and
4. That [name of plaintiff]’s injuries would have been avoided or less
severe if [he/she/nonbinary pronoun] had used the seat belt.
[In deciding whether a reasonably careful person would have used a seat
belt, you may consider Vehicle Code section 27315, which states: [insert
pertinent provision].]
New September 2003; Revised October 2008
Directions for Use
Note that the Motor Vehicle Safety Act (Veh. Code, § 27315) applies only to
persons 16 years or older. (Veh. Code, § 27315(d)(1).) No case law regarding
whether persons under 16 can be found comparatively negligent for failing to wear
a seat belt has been found.
Sources and Authority
• Failure to Wear Seat Belt as Negligence. Vehicle Code section 27315(i).
• “Defendants . . . are required to prove two issues of fact: (1) the defendant must
show whether in the exercise of ordinary care the plaintiff should have used the
seat belt which was available to him. . . . (2) The defendant must show what the
consequence to the plaintiff would have been had seat belts been used.”
(Franklin v. Gibson (1982) 138 Cal.App.3d 340, 343 [188 Cal.Rptr. 23].)
• “Upon a retrial the court or jury will determine whether in the exercise of
ordinary care [plaintiff] should have used the seat belt; expert testimony will be
required to prove whether [plaintiff] would have been injured, and, if so, the
extent of the injuries he would have sustained if he had been using the seat
belt . . . .” (Truman v. Vargas (1969) 275 Cal.App.2d 976, 983 [80 Cal.Rptr.
373].)
• In Housley v. Godinez (1992) 4 Cal.App.4th 737, 747 [6 Cal.Rptr.2d 111], the
court approved of the following jury instruction, which was read in addition to
section 27315: “The Defendants have raised the seat belt defense in this case.
First, you must decide whether in the exercise of ordinary care, the Plaintiff
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should have used seat belts, if available to him. Second you must determine with
expert testimony the nature of injuries and damages Plaintiff would have
sustained if he had used seat belts.”
• “[Section 27315] permits the civil trial courts to instruct on the existence of the
seat belt statute in appropriate cases, while allowing the jury to decide what
weight, if any, to give the statute in determining the standard of reasonable
care.” (Housley, supra, 4 Cal.App.4th at p. 747.)
• “[N]othing in the statute prohibits a jury from knowing and considering its very
existence when determining the reasonableness of driving without a seat belt.”
(Housley, supra, 4 Cal.App.4th at p. 744.)
• “There was evidence presented that appellant’s failure to wear a seat belt
worsened his injuries. The foreseeability test clearly eliminates this act as a
supervening cause because it is the general likelihood of the type of injury that
must be unforeseeable in order to absolve defendant; the extent of injury need
not be foreseeable.” (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 28 [22
Cal.Rptr.2d 106].)
• “Expert testimony is not always required to prove that failure to use a seat belt
may cause at least some, if not all, of plaintiff’s claimed injuries. [¶] Depending
on the facts of the case, expert testimony may be necessary for the jury to
distinguish the injuries that [plaintiff] unavoidably sustained in the collision from
the injuries he could have avoided if he had worn a seat belt.” (Lara v. Nevitt
(2004) 123 Cal.App.4th 454, 458–459 [19 Cal.Rptr.3d 865], internal citation
omitted.)
• “The seat belt defense does not depend on a Vehicle Code violation nor is it
eviscerated by a Vehicle Code exemption from the requirement to wear seat
belts.” (Lara, supra, 123 Cal.App.4th at p. 461 fn. 3.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.71
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.05[2] (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.10 (Matthew Bender)
California Civil Practice: Torts § 25:26 (Thomson Reuters)
713–719. Reserved for Future Use
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720. Motor Vehicle Owner Liability—Permissive Use of Vehicle
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
and that [name of defendant] is responsible for the harm because [name of
defendant] gave [name of driver] permission to operate the vehicle. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of driver] was negligent in operating the vehicle;
2. That [name of defendant] was an owner of the vehicle at the time
of the injury to [name of plaintiff]; and
3. That [name of defendant], by words or conduct, gave permission to
[name of driver] to use the vehicle.
In determining whether permission was given, you may consider the
relationship between the owner and the operator. [For example, if the
parties are related or the owner and the operator are employer and
employee, such a relationship may support a finding that there was
implied permission to use the vehicle.]
[If the vehicle owner has given a person permission to use the vehicle,
and that person authorizes a third person to operate the vehicle, the
third person may be considered to have used the vehicle with the
permission of the owner.]
New September 2003
Directions for Use
Separate instructions will be necessary regarding the negligence of the driver and
that it caused harm to the plaintiff. Read bracketed language if appropriate to the
facts. If ownership of the vehicle is uncontested, element 2 may be deleted.
Sources and Authority
• Permissive Use. Vehicle Code section 17150.
• Permissive Use: Limitation on Liability. Vehicle Code section 17151(a).
• The statutory limitation under section 17151(a) “does not apply . . . to a vehicle
owner’s own common law negligence, as distinguished from the owner’s
statutory vicarious liability for the operator’s negligence.” (Fremont
Compensation Insurance Co. v. Hartnett (1993) 19 Cal.App.4th 669, 675–676
[23 Cal.Rptr.2d 567].)
• “[U]nless the evidence points to one conclusion only, the question of the
existence of the requisite permission under [section 17150] is one to be
determined by the trier of fact, ‘upon the facts and circumstances in evidence
and the inferences reasonably to be drawn therefrom.’ ” (Peterson v. Grieger,
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Inc. (1961) 57 Cal.2d 43, 51 [17 Cal.Rptr. 828, 367 P.2d 420], internal citations
omitted.)
• “[P]ermission cannot be left to speculation or conjecture nor be assumed, but
must be affirmatively proved, and the fact of permission is just as important to
sustain the imposition of liability as is the fact of ownership.” (Scheff v. Roberts
(1950) 35 Cal.2d 10, 12 [215 P.2d 925], internal citations omitted.)
• “Where the issue of implied permissive use is involved, the general relationship
existing between the owner and the operator, is of paramount importance.
Where, for example, the parties are related by blood, or marriage, or where the
relationship between the owner and the operator is that of principal and agent,
weaker direct evidence will support a finding of such use than where the parties
are only acquaintances or strangers.” (Elkinton v. California State Automobile
Assn., Interstate Insurance Bureau (1959) 173 Cal.App.2d 338, 344 [343 P.2d
396], internal citations omitted.)
• “There is no doubt that the word ‘owner’ as used in [the predecessor to Vehicle
Code section 17150] for the purpose of creating a liability thereunder, is not
synonymous with that word as used in the ordinary sense of referring to a
person or persons whose title is good as against all others. Under the Vehicle
Code there may be several such ‘owners’ at any one time. One or more persons
may be an ‘owner,’ and thus liable for the injuries of a third party, even though
no such ‘owner’ possesses all of the normal incidents of ownership.” (Stoddart v.
Peirce (1959) 53 Cal.2d 105, 115 [346 P.2d 774], internal citation omitted.)
• “The question whether the [defendant] was an owner for purposes of imposition
of liability for negligence [under Vehicle Code section 17150] was one of fact.”
(Campbell v. Security Pacific Nat. Bank (1976) 62 Cal.App.3d 379, 385 [133
Cal.Rptr. 77].)
• “Strict compliance with Vehicle Code section 5602 [regarding the sale or transfer
of a vehicle] is required to enable a transferring owner to escape the liability
imposed by section 17150 on account of an accident occurring before notice of
the transfer is received by the Motor Vehicle Department.” (Laureano v.
Christensen (1971) 18 Cal.App.3d 515, 520–521 [95 Cal.Rptr. 872].)
• “[T]he true and actual owner of an automobile [is not] relieved from liability by
the expedient of registration in the name of another. . . . It is clear that it was
the legislative intent to make the actual owners of automobiles liable for the
negligence of those to whom permission is given to drive them. According to the
allegations of the complaint defendants . . . were in fact the true owners of the
car and had control of it, the registration being in the name of defendant [driver]
for the purpose of avoiding liability.” (McCalla v. Grosse (1941) 42 Cal.App.2d
546, 549–550 [109 P.2d 358].)
• “[I]t is a question of fact in cases of co-ownership, as it is in cases of single
ownership, whether the operation of an automobile is with or without the
consent, express or implied, of an owner who is not personally participating in
such operation. The mere fact of co-ownership does not necessarily or
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conclusively establish that the common owners have consented to any usage or
possession among themselves of a type for which permission is essential.”
(Krum v. Malloy (1943) 22 Cal.2d 132, 136 [137 P.2d 18].)
• “The immunity of the negligent operator under the [Workers’ Compensation] Act
does not insulate a vehicle owner who is neither the plaintiff’s employer nor co-
employee from liability under section 17150. [¶] Since the owner’s liability does
not arise from the status or liability of the operator, the defenses applicable to
the operator are not available to the owner.” (Galvis v. Petito (1993) 13
Cal.App.4th 551, 554 [16 Cal.Rptr.2d 560].)
• “The doctrine of ‘negligent entrustment’ is clearly distinguishable from the
theory of ‘vicarious liability.’ Negligent entrustment is a common law liability
doctrine. Conversely, the obligation of a lending owner of an automobile is one
of statutory liability. An owner of an automobile may be independently negligent
in entrusting it to an incompetent driver. California is one of several states which
recognizes the liability of an automobile owner who has entrusted a car to an
incompetent, reckless, or inexperienced driver, and has supplemented the
common law doctrine of negligent entrustment by enactment of a specific
consent statute.” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 538 [55 Cal.Rptr.
741], internal citations omitted.)
• For purposes of liability under the permissive use statute, “[s]ince defendant [car
owner] had the opportunity of making such investigation as he deemed necessary
to satisfy himself as to the identity of the [renter] to whom he intrusted his
automobile, he should not be permitted to escape liability to a third party
because of any fraudulent misrepresentation made by the renter of the car to
him.” (Tuderios v. Hertz Drivurself Stations, Inc. (1945) 70 Cal.App.2d 192, 198
[160 P.2d 554].)
• “[T]he provisions of Proposition 51 do not operate to reduce the liability of
vehicle owners imposed by Vehicle Code section 17150.” (Rashtian v. BRAC-
BH, Inc. (1992) 9 Cal.App.4th 1847, 1849 [12 Cal.Rptr.2d 411].)
• “[I]f the evidence shows that an automobile was being driven by an employee of
the owner at the time of an accident, the jury may infer that the employee was
operating the automobile with the permission of the owner.” (Hicks v. Reis
(1943) 21 Cal.2d 654, 659 [134 P.2d 788], internal quotation marks and citations
omitted.)
• “The mere fact that at the time of an accident one is driving an automobile
belonging to another is not, of itself, sufficient to establish that the former was
driving the car with the permission of the owner.” (Di Rebaylio v. Herndon
(1935) 6 Cal.App.2d 567, 569 [44 P.2d 581].)
• “[I]mplied permission to use an automobile may be found even where the owner
and permittee expressly deny that permission was given.” (Anderson v. Wagnon
(1952) 110 Cal.App.2d 362, 366 [242 P.2d 915].)
• “[I]n determining whether there has been an implied permission, it is not
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necessary that the owner have prior knowledge that the driver intends to use the
car, but it must be ‘under circumstances from which consent to use the car is
necessarily implied.’ ” (Mucci v. Winter (1951) 103 Cal.App.2d 627, 631 [230
P.2d 22], internal citation omitted.)
• For purposes of statutory vicarious liability, “if the owner entrusts his car to
another he invests him with the same authority to select an operator which the
owner has in the first instance. . . . [¶] . . . The owner is thus liable for
negligent acts by a subpermittee even though the subpermittee operated the
owner’s vehicle with authorization only from the permittee, since the foundation
of the statutory liability is the permission given to another to use an
instrumentality which if improperly used is a danger and menace to the public.”
(Peterson v. Grieger, Inc. (1961) 57 Cal.2d 43, 54 [17 Cal.Rptr. 828, 367 P.2d
420], internal quotation marks and citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1416–1421, 1427
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.28–4.32, 4.37
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.20 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§§ 82.11, 82.16 (Matthew Bender)
California Civil Practice: Torts §§ 25:44–25:45 (Thomson Reuters)
566
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721. Motor Vehicle Owner Liability—Affirmative Defense—Use
Beyond Scope of Permission
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for [name of plaintiff]’s harm because [name of driver]’s use of
the vehicle exceeded the scope of the permission given. To succeed, [name
of defendant] must prove both of the following:
1. That [name of defendant], by words or conduct, gave permission to
[name of driver] to use the vehicle for a limited time, place, or
purpose; and
2. That [name of driver]’s use of the vehicle substantially violated the
time, place, or purpose specified.
New September 2003
Directions for Use
This instruction is intended for use when the vehicle owner contends that the use of
the vehicle exceeded the scope of the permission, thereby terminating the
permission.
Sources and Authority
• Permissive Use. Vehicle Code section 17150.
• “[W]here the permission is granted for a limited time, any use after the
expiration of the period is without consent, and the owner is not liable, unless
the circumstances justify an inference of implied consent to further use. [¶] . . .
On principle, there is no fundamental ground of distinction between a limitation
of time and one of purpose or place, insofar as permission is concerned; and it
would seem clear that a substantial violation of either limitation terminates the
original express consent and makes the subsequent use without permission. . . .
[¶] . . . [T]he substantial violation of limitations as to locality or purpose of use
operate in the same manner as violation of time limitations, absolving the owner
from liability.” (Henrietta v. Evans (1938) 10 Cal.2d 526, 528–529 [75 P.2d
1051], internal citations omitted.)
• “[W]here restrictions by the owner as to time, purpose, or area are involved, the
owner’s permission is considered terminated only where there has been a
substantial violation of such restrictions, and it is a question of fact whether
under all the circumstances presented, such restrictions as to time, purpose, or
area have been substantially violated prior to the occurrence of the accident so
as to vitiate the owner’s permission and thus absolve him from the vicarious
liability imposed under [the predecessor to section 17150].” (Peterson v. Grieger,
Inc. (1961) 57 Cal.2d 43, 52 [17 Cal.Rptr. 828, 367 P.2d 420], internal citations
omitted.)
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• “What is a substantial deviation from a permitted use is a question of fact under
the circumstances of each case.” (Garmon v. Sebastian (1960) 181 Cal.App.2d
254, 260 [5 Cal.Rptr. 101].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1428
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.35–4.36
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.20[5][c] (Matthew
Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.16 (Matthew Bender)
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722. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
and that [name of defendant] is responsible for the harm because [name of
defendant] gave [name of minor] permission to operate the vehicle. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of minor] was negligent in operating the vehicle;
2. That [name of plaintiff] was harmed;
3. That [name of minor]’s negligence was a substantial factor in
causing the harm; and
4. That [name of defendant], by words or conduct, gave [name of
minor] permission to use the vehicle.
New September 2003; Revised April 2004, October 2004
Directions for Use
Under Vehicle Code section 17708, an element of this cause of action is that the
defendant must have “custody” of the minor driver. The instruction omits this
element because it will most likely be stipulated to or decided by the judge as a
matter of law. If there are contested issues of fact regarding this element, this
instruction may be augmented to include the specific factual findings necessary to
arrive at a determination of custody.
Sources and Authority
• Parental Liability for Minor’s Vehicle Operation. Vehicle Code section 17708.
• “[I]t was incumbent upon [plaintiffs], in order to fasten liability upon [the
parents] for the minor’s negligence, to establish two necessary facts. These facts
were, first, that at the time the collision occurred respondents had custody of the
minor and, second, that they had given to the minor their permission, either
express or implied, to his driving the automobile by the negligent operation of
which the injuries were caused.” (Sommers v. Van Der Linden (1938) 24
Cal.App.2d 375, 380 [75 P.2d 83].)
• “Whether or not a sufficient custody existed, within the meaning of the statute,
might well depend upon evidence of specific facts showing the nature, kind and
extent of the custody and right of control which the respondent [grandfather]
actually had.” (Hughes v. Wardwell (1953) 117 Cal.App.2d 406, 409 [255 P.2d
881].)
• “In the absence of statute, ordinarily a parent is not liable for the torts of his
minor child. A parent, however, becomes liable for the torts of his minor child if
that child in committing a tort is his agent and acting within the child’s
authority.” (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 904–905 [151
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Cal.Rptr. 456], internal citations omitted.)
• “ ‘[P]erson having custody of the minor’ means person having permanent legal
custody, and not a person such as a school teacher whose control over his pupils
is limited in time and scope.” (Hathaway v. Siskiyou Union High School Dist.
(1944) 66 Cal.App.2d 103, 114 [151 P.2d 861].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1412–1415
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.42–4.43
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.30[1] (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.133 (Matthew Bender)
California Civil Practice: Torts § 25:52 (Thomson Reuters)
570
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723. Liability of Cosigner of Minor’s Application for Driver’s
License
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of minor]’s negligence in operating the vehicle and that [name of
defendant] is responsible for the harm because [name of defendant] signed
[name of minor]’s application for a driver’s license. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of minor] was negligent in operating the vehicle;
2. That [name of plaintiff] was harmed;
3. That [name of minor]’s negligence was a substantial factor in
causing the harm;
4. That [name of defendant] signed [name of minor]’s application for
a driver’s license; and
5. That at the time of the collision [name of minor]’s driver’s license
had not been canceled or revoked by the Department of Motor
Vehicles.
New September 2003
Sources and Authority
• Liability of Cosigner of Minor’s Driver’s License Application. Vehicle Code
section 17707.
• No Liability if Minor is Agent of Another. Vehicle Code section 17710.
• Application for Relief From Liability. Vehicle Code section 17711.
• “Cancellation accomplishes voluntarily what revocation [of minor’s driver’s
license] accomplishes involuntarily. If termination is accomplished by the latter
method, resort to the former becomes superfluous. Once revocation occurs, the
driving privilege is at an end. Thereafter there is no reason and no necessity for
a voluntary application to terminate that which has already been terminated
involuntarily. Both means are equally effective to terminate the driving privilege
and to terminate the signer’s liability.” (Hamilton v. Dick (1967) 254 Cal.App.2d
123, 125 [61 Cal.Rptr. 894].)
• “[T]he negligence of the minor son of the [parents] is imputed to them . . . by
virtue of their having signed his application for an operator’s license, which was
not revoked or cancelled at the time of the accident in question, notwithstanding
the fact that the license was then temporarily suspended” and even though the
parents specifically forbade the minor from operating the vehicle. (Sleeper v.
Woodmansee (1936) 11 Cal.App.2d 595, 598 [54 P.2d 519].)
• “It seems quite evident that, in adopting [the predecessors to sections 17150 and
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17707] of the Vehicle Code, the legislature intended to create a limited liability
for imputed negligence against both the owner of an automobile and the signer
of a driver’s license. . . . We must assume the legislature intended to fix a
limited liability . . . for imputed negligence against the owner of an automobile
and the signer of a driver’s license or either of them and that it did not intend to
double that limited liability when the same individual was both the owner of the
machine and the signer of the license.” (Rogers v. Foppiano (1937) 23
Cal.App.2d 87, 92–93 [72 P.2d 239].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1412–1415
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.41, 4.43
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.30[2] (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.134 (Matthew Bender)
California Civil Practice: Torts § 25:52 (Thomson Reuters)
572
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724. Negligent Entrustment of Motor Vehicle
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] negligently permitted [name of driver] to use
[name of defendant]’s vehicle. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of driver] was negligent in operating the vehicle;
2. That [name of defendant] [owned the vehicle operated by [name of
driver]/had possession of the vehicle operated by [name of driver]
with the owner’s permission];
3. That [name of defendant] knew, or should have known, that [name
of driver] was incompetent or unfit to drive the vehicle;
4. That [name of defendant] permitted [name of driver] to drive the
vehicle; and
5. That [name of driver]’s incompetence or unfitness to drive was a
substantial factor in causing harm to [name of plaintiff].
New September 2003; Revised December 2009
Directions for Use
For a definition of “negligence,” see CACI No. 401, Basic Standard of Care.
Sources and Authority
• Permissive Use by Unlicensed Driver. Vehicle Code section 14606(a).
• Permissive Use by Unlicensed Minor. Vehicle Code section 14607.
• Rental to Unlicensed Driver. Vehicle Code section 14608(a).
• “ ‘ “[I]t is generally recognized that one who places or entrusts his [or her]
motor vehicle in the hands of one whom he [or she] knows, or from the
circumstances is charged with knowing, is incompetent or unfit to drive, may be
held liable for an injury inflicted by the use made thereof by that driver,
provided the plaintiff can establish that the injury complained of was
proximately caused by the driver’s disqualification, incompetency, inexperience
or recklessness . . . .” ’ ” (Flores v. Enterprise Rent-A-Car Co. (2010) 188
Cal.App.4th 1055, 1063 [116 Cal.Rptr.3d 71].)
• “A rental car company may be held liable for negligently entrusting one of its
cars to a customer. . . . In determining whether defendant was negligent in
entrusting its car to [the driver], defendant’s conduct is to be measured by what
an ordinarily prudent person would do in similar circumstances.” (Osborn v.
Hertz Corp. (1988) 205 Cal.App.3d 703, 709 [252 Cal.Rptr. 613], internal
citations omitted.)
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• “Liability for negligent entrustment is determined by applying general principles
of negligence, and ordinarily it is for the jury to determine whether the owner
has exercised the required degree of care.” (Allen v. Toledo (1980) 109
Cal.App.3d 415, 421 [167 Cal.Rptr. 270], internal citations omitted.)
• “A claim that an employer was negligent in hiring or retaining an employee-
driver rarely differs in substance from a claim that an employer was negligent in
entrusting a vehicle to the employee. Awareness, constructive or actual, that a
person is unfit or incompetent to drive underlies a claim that an employer was
negligent in hiring or retaining that person as a driver. (See Judicial Council of
Cal. Civ. Jury Instns. (2011) CACI No. 426.) That same awareness underlies a
claim for negligent entrustment. (See CACI No. 724.) In a typical case, like this,
the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51 Cal.4th
1148, 1157 [126 Cal.Rptr.3d 443, 253 P.3d 535].)
• “[I]f an employer admits vicarious liability for its employee’s negligent driving
in the scope of employment, ‘the damages attributable to both employer and
employee will be coextensive.’ Thus, when a plaintiff alleges a negligent
entrustment or hiring cause of action against the employer and the employer
admits vicarious liability for its employee’s negligent driving, the universe of
defendants who can be held responsible for plaintiff’s damages is reduced by
one—the employer—for purposes of apportioning fault under Proposition 51.
Consequently, the employer would not be mentioned on the special verdict form.
The jury must divide fault for the accident among the listed tortfeasors, and the
employer is liable only for whatever share of fault the jury assigns to the
employee.” (Diaz, supra, 41 Cal.4th at p. 1159, internal citation omitted.)
• “[O]rdinarily, in the absence of a special relationship between the parties, there
is no duty to control the conduct of a third person so as to prevent him from
causing harm to another and . . . this rule applies even where the third person’s
conduct is made possible only because the defendant has relinquished control of
his property to the third person, unless the defendant has reason to believe that
the third person is incompetent to manage it.” (Grafton v. Mollica (1965) 231
Cal.App.2d 860, 863 [42 Cal.Rptr. 306].)
• “[T]he tort requires demonstration of actual knowledge of facts showing or
suggesting the driver’s incompetence—not merely his lack of a license. . . . For
liability to exist, knowledge must be shown of the user’s incompetence or
inability safely to use the [vehicle].” (Dodge Center v. Superior Court (1988)
199 Cal.App.3d 332, 341 [244 Cal.Rptr. 789], internal citations omitted.)
• “Knowledge of possession of a temporary permit allowing a person to drive only
if accompanied by a licensed driver is sufficient to put the entrustor ‘upon
inquiry as to the competency of’ the unlicensed driver. . . . It is then for the jury
to determine under the circumstances whether the entrustor is negligent in
permitting the unlicensed driver to operate the vehicle.” (Nault v. Smith (1961)
194 Cal.App.2d 257, 267–268 [14 Cal.Rptr. 889], internal citations omitted.)
• “In cases involving negligent entrustment of a vehicle, liability ‘ “is imposed on
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[a] vehicle owner or permitter because of his own independent negligence and
not the negligence of the driver.” ’ ” (Ghezavat v. Harris (2019) 40 Cal.App.5th
555, 559 [252 Cal.Rptr.3d 887].)
• “[E]ntrustment of a vehicle to an intoxicated person is not negligence per se. A
plaintiff must prove defendant had knowledge of plaintiff’s incompetence when
entrusting the vehicle.” (Blake v. Moore (1984) 162 Cal.App.3d 700, 706 [208
Cal.Rptr. 703].)
• “[T]he mere sale of an automobile to an unlicensed and inexperienced person
does not constitute negligence per se.” (Perez v. G & W Chevrolet, Inc. (1969)
274 Cal.App.2d 766, 768 [79 Cal.Rptr. 287].)
• “It is well-settled that where a company knows that an employee has no
operator’s license that such knowledge is sufficient to put the employer on
inquiry as to his competency; it is for the jury to determine under such
circumstances whether the employer was negligent in permitting the employee to
drive a vehicle.” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 545 [55 Cal.Rptr.
741].)
• “[I]t has generally been held that the owner of an automobile is under no duty to
persons who may be injured by its use to keep it out of the hands of a third
person in the absence of facts putting the owner on notice that the third person
is incompetent to handle it.” (Richards v. Stanley (1954) 43 Cal.2d 60, 63 [271
P.2d 23], internal citations omitted.)
• “[T]he mere fact of co-ownership does not prevent one co-owner from
controlling use of the vehicle by the other co-owner. Thus, where . . . plaintiff
alleges that one co-owner had power over the use of the vehicle by the other and
that the negligent co-owner drove with the express or implied consent of such
controlling co-owner, who knew of the driver’s incompetence, the basis for a
cause of action for negligent entrustment has been stated.” (Mettelka v. Superior
Court (1985) 173 Cal.App.3d 1245, 1250 [219 Cal.Rptr. 697].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1372–1377
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-B, Liability
Arising From Operation Of Motor Vehicle, ¶ 2:985 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 7D-D, Liability
Based On Negligent Entrustment, ¶ 7:1332 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, § 4.38
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.21 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of Action,
§ 82.11 (Matthew Bender)
California Civil Practice: Torts § 25:47 (Thomson Reuters)
725–729. Reserved for Future Use
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730. Emergency Vehicle Exemption (Veh. Code, § 21055)
[Name of defendant] claims that [name of public employee] was not
required to comply with Vehicle Code section [insert section number]
because [he/she/nonbinary pronoun] was operating an authorized
emergency vehicle and was responding to an emergency at the time of
the accident.
To establish that [name of public employee] was not required to comply
with section [insert section number], [name of defendant] must prove all of
the following:
1. That [name of public employee] was operating an authorized
emergency vehicle;
2. That [name of public employee] was responding to an emergency
situation at the time of the accident; and
3. That [name of public employee] sounded a siren when reasonably
necessary and displayed front red warning lights.
If you decide that [name of defendant] proved all of these things, then you
cannot find it negligent for a violation of section [insert section number].
However, even if you decide that [name of defendant] proved all of these
things, you may find it negligent if [name of public employee] failed to
operate [his/her/nonbinary pronoun] vehicle with reasonable care, taking
into account the emergency situation.
New September 2003
Directions for Use
For a definition of “emergency,” see CACI No. 731, Definition of “Emergency.”
Sources and Authority
• Authorized Emergency Vehicle Exemption. Vehicle Code section 21055.
• “Authorized Emergency Vehicle” Defined. Vehicle Code section 165.
• Authorized Emergency Vehicle: Public Employee Immunity. Vehicle Code
section 17004.
• “The purpose of the statute is to provide a ‘clear and speedy pathway’ for these
municipal vehicles on their flights to emergencies in which the entire public are
necessarily concerned.” (Peerless Laundry Services v. City of Los Angeles (1952)
109 Cal.App.2d 703, 707 [241 P.2d 269].)
• Vehicle Code section 21056 provides: “Section 21055 does not relieve the driver
of a vehicle from the duty to drive with due regard for the safety of all persons
using the highway, nor protect him from the consequences of an arbitrary
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exercise of the privileges granted in that section.”
• “The effect of Vehicle Code sections 21055 and 21056 is: where the driver of an
authorized emergency vehicle is engaged in a specified emergency function he
may violate certain rules of the road, such as speed and right of way laws, if he
activates his red light and where necessary his siren in order to alert other users
of the road to the situation. In such circumstances the driver may not be held to
be negligent solely upon the violation of specified rules of the road, but may be
held to be negligent if he fails to exercise due regard for the safety of others
under the circumstances. Where the driver of an emergency vehicle fails to
activate his red light, and where necessary his siren, he is not exempt from the
rules of the road even though he may be engaged in a proper emergency
function, and negligence may be based upon the violation of the rules of the
road.” (City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395,
402–403 [182 Cal.Rptr. 443], internal citations omitted.)
• “Notwithstanding [Vehicle Code section 17004], a public entity is liable for
injuries proximately caused by negligent acts or omissions in the operation of
any motor vehicle by an employee of the public entity, acting within the scope
of his or her employment.” (City of San Jose v. Superior Court (1985) 166
Cal.App.3d 695, 698 [212 Cal.Rptr. 661], internal citations omitted.)
• “If the driver of an authorized emergency vehicle is responding to an emergency
call and gives the prescribed warnings by red light and siren, a charge of
negligence against him may not be predicated on his violation of the designated
Vehicle Code sections; but if he does not give the warnings, the contrary is true;
and in the event the charged negligence is premised on conduct without the
scope of the exemption a common-law standard of care is applicable.” (Grant v.
Petronella (1975) 50 Cal.App.3d 281, 286 [123 Cal.Rptr. 399], internal citations
omitted.)
• “Where the driver of an emergency vehicle responding to an emergency call
does not give the warnings prescribed by section 21055, the legislative warning
policy expressed in that section dictates the conclusion [that] the common-law
standard of care governing his conduct does not include a consideration of the
emergency circumstances attendant upon his response to an emergency call.”
(Grant, supra, 50 Cal.App.3d at p. 289, footnote omitted.)
• The exemption created by section 21055 is an affirmative defense, and the
defendant must prove compliance with the conditions. (Washington v. City and
County of San Francisco (1954) 123 Cal.App.2d 235, 242 [266 P.2d 828].)
• “In short the statute exempts the employer of such a driver from liability for
negligence attributable to his failure to comply with specified statutory
provisions, but it does not in any manner purport to exempt the employer from
liability due to negligence attributable to the driver’s failure to maintain that
standard of care imposed by the common law.” (Torres v. City of Los Angeles
(1962) 58 Cal.2d 35, 47 [22 Cal.Rptr. 866, 372 P.2d 906].)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 358, 394–398
2 Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 11.140–11.144
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.55 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 246, Emergency Vehicles
(Matthew Bender)
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731. Definition of “Emergency” (Veh. Code, § 21055)
An “emergency” exists if the driver of an authorized emergency vehicle
is [insert one of the following]
[responding to an emergency call.]
[involved in rescue operations.]
[in the immediate pursuit of an actual or suspected violator of the
law.]
[responding to, but not returning from, a fire alarm.]
[operating a fire department vehicle while traveling from one place
to another place because of an emergency call.]
New September 2003
Directions for Use
This instruction is based on the language of Vehicle Code section 21055(a) and is
only intended for cases in which there is a factual issue regarding whether the
defendant was acting in response to an emergency at the time of the accident.
(Washington v. City and County of San Francisco (1954) 123 Cal.App.2d 235, 241
[266 P.2d 828].)
Sources and Authority
• Authorized Emergency Vehicle Exemption. Vehicle Code section 21055(a).
• “Whether a vehicle is driven in response to an emergency call depends on the
nature of the call received and the situation as presented to the mind of the
driver and not upon whether there is an emergency in fact. The driver, of course,
should have reasonable grounds to believe that there is an emergency.” (Gallup
v. Sparks-Mundo Engineering Co. (1954) 43 Cal.2d 1, 5 [271 P.2d 34], internal
citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 358, 394–398
2 Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 11.140–11.144
732–799. Reserved for Future Use
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VF-700. Motor Vehicle Owner Liability—Permissive Use of Vehicle
We answer the questions submitted to us as follows:
1. Was [name of defendant] an owner of the vehicle at the time of the
injury to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant], by words or conduct, give permission to
[name of driver] to use the vehicle?
2. Yes No
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
This is for use in conjunction with the general negligence verdict forms involving
motor vehicles. The two questions here should be incorporated into the verdict form
regarding the underlying case. The special verdict forms in this section are intended
only as models. They may need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 720, Motor Vehicle Owner
Liability—Permissive Use of Vehicle.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-701. Motor Vehicle Owner Liability—Permissive Use of
Vehicle—Affirmative Defense—Use Beyond Scope of Permission
We answer the questions submitted to us as follows:
1. Was [name of defendant] an owner of the vehicle at the time of the
injury to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant], by words or conduct, give permission to
[name of driver] to use the vehicle?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s permission to use the vehicle given for
a limited time, place, or purpose?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of driver]’s use of the vehicle substantially violate the
limitations as to time, place, or purpose?
4. Yes No
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
This is for use in conjunction with the general negligence verdict forms involving
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VF-701 MOTOR VEHICLES AND HIGHWAY SAFETY
motor vehicles. The four questions here should be incorporated into the verdict form
regarding the underlying case. The special verdict forms in this section are intended
only as models. They may need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 720, Motor Vehicle Owner
Liability—Permissive Use of Vehicle, and CACI No. 721, Motor Vehicle Owner
Liability—Affırmative Defense—Use Beyond Scope of Permission.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-702. Adult’s Liability for Minor’s Permissive Use of Motor
Vehicle
We answer the questions submitted to us as follows:
1. Was [name of minor] negligent in operating the vehicle?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of minor]’s negligence a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant], by words or conduct, give [name of
minor] permission to use the vehicle?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
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[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 722, Adult’s Liability for Minor’s
Permissive Use of Motor Vehicle.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-703. Liability of Cosigner of Minor’s Application for Driver’s
License
We answer the questions submitted to us as follows:
1. Was [name of minor] negligent in operating the vehicle?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of minor]’s negligence a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] sign [name of minor]’s application for a
driver’s license?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. At the time of the collision, had [name of minor]’s driver’s license
been cancelled or revoked by the Department of Motor Vehicles?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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VF-703 MOTOR VEHICLES AND HIGHWAY SAFETY
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 723, Liability of Cosigner of Minor’s
Application for Driver’s License.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
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MOTOR VEHICLES AND HIGHWAY SAFETY VF-703
findings that are required in order to calculate the amount of prejudgment interest.
587
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VF-704. Negligent Entrustment of Motor Vehicle
We answer the questions submitted to us as follows:
1. Was [name of driver] negligent in operating the vehicle?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] own the vehicle operated by [name of
driver] or did [name of defendant] have possession of the vehicle
operated by [name of driver] with the owner’s permission?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know, or should [he/she/nonbinary
pronoun] have known, that [name of driver] was incompetent or
unfit to drive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] permit [name of driver] to drive the
vehicle?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of driver]’s incompetence or unfitness to drive a
substantial factor in causing harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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MOTOR VEHICLES AND HIGHWAY SAFETY VF-704
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 724, Negligent Entrustment of Motor
Vehicle. Modify to include elements of negligence instruction against the driver if
plaintiff is suing both driver and owner.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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VF-704 MOTOR VEHICLES AND HIGHWAY SAFETY
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-705–VF-799. Reserved for Future Use
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RAILROAD CROSSINGS
800. Basic Standard of Care for Railroads
801. Duty to Comply With Safety Regulations
802. Reserved for Future Use
803. Regulating Speed
804. Lookout for Crossing Traffic
805. Installing Warning Systems
806. Comparative Fault—Duty to Approach Crossing With Care
807–899. Reserved for Future Use
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800. Basic Standard of Care for Railroads
Railroad companies must use reasonable care to avoid causing injury to
anyone crossing railroad tracks from a street or roadway. [Railroad
companies must use reasonable care in the design and maintenance of
warning signals and protective devices at railroad crossings.] [Train
operators must use reasonable care in operating their trains at railroad
crossings.] The failure to use reasonable care is negligence.
New September 2003
Directions for Use
The instructions in this series should be used together with one or more of the
instructions that follow, which give specific guidance on the nature and scope of a
railroad’s duties of care regarding grade crossings.
Consideration should be given as to whether any of the asserted theories of liability
are preempted by federal law (see CSX Transportation, Inc. v. Easterwood (1993)
507 U.S. 658 [113 S.Ct. 1732, 123 L.Ed.2d 387] and Norfolk Southern Railway Co.
v. Shanklin (2000) 529 U.S. 344 [120 S.Ct. 1467, 146 L.Ed.2d 374]). If so, it may
be necessary to modify this instruction to avoid indirect reference to these theories.
Sources and Authority
• The California Supreme Court has stated the duty of railroads at crossings as
follows: “Generally speaking, the duty to exercise reasonable or ordinary care is
imposed upon the operator of a railroad at public highway crossings with respect
to persons traveling upon the highway and over the crossing, both as to the
manner of operating the train and the maintenance of the crossing. The standard
of care is that of the man of ordinary prudence under the circumstances.” (Peri
v. Los Angeles Junction Ry. Co. (1943) 22 Cal.2d 111, 120 [137 P.2d 441],
internal citations omitted.)
• “Ordinarily the issue of the negligence in crossing cases, whether the railroad
was negligent in the design and maintenance of the crossing or in the operation
of the train, is one of fact as in other negligence cases.” (Romo v. Southern
Pacific Transportation Co. (1977) 71 Cal.App.3d 909, 916 [139 Cal.Rptr. 787],
internal citations omitted.)
• The amount of care that is “reasonable” varies in proportion to the circumstances
constituting the probable danger. (Romo, supra, 71 Cal.App.3d at p. 916.)
• “Where the conditions existing at the crossing create an unusual hazard or
danger, the operator of the railroad must exercise care commensurate with those
circumstances, and whether he has done so is a question of fact.” (Peri, supra,
22 Cal.2d at p. 123.)
• “We hold that . . . federal regulations adopted by the Secretary of
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Transportation pre-empt respondent’s negligence action only insofar as it asserts
that petitioner’s train was traveling at an excessive speed.” (CSX Transportation,
Inc., supra, 507 U.S. at p. 676.)
• “When the [Federal Highway Administration] approves a crossing improvement
project and the State installs the warning devices using federal funds, [federal
regulations] establish a federal standard for the adequacy of those devices that
displaces state tort law addressing the same subject.” (Norfolk Southern Railway
Co., supra, 529 U.S. at p. 357.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.2
2 Levy et al., California Torts, Ch. 23, Carriers, §§ 23.25–23.26 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.61
(Matthew Bender)
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Copyright Judicial Council of California
801. Duty to Comply With Safety Regulations
An [ordinance/regulation] of the [insert name of entity] provides as
follows: [insert text of ordinance or regulation]
Railroad companies must obey safety regulations. Regulations state only
the minimum measure of care required of a railroad company.
Particular conditions and situations may require a company to use more
care than the regulations require.
New September 2003
Directions for Use
Regulations adopted by the Secretary of Transportation pursuant to the Federal
Railroad Safety Act preempt state common-law negligence claims based on general
allegations of “excessive speed.” (CSX Transportation, Inc. v. Easterwood (1993)
507 U.S. 658, 675 [113 S.Ct. 1732, 123 L.Ed.2d 387].) Also, claims alleging
inadequate warning devices are preempted where federally funded grade crossing
improvements have been installed. (Norfolk Southern Railway Co. v. Shanklin
(2000) 529 U.S. 344, 359 [120 S.Ct. 1467, 146 L.Ed.2d 374].) This instruction is
not intended to apply to situations in which a railroad’s compliance with these
federal safety regulations would preempt state law negligence claims.
Sources and Authority
• “ ‘ “It is well settled that such statutory regulations constitute only the minimum
measure of care required by the railroad, and it is usually a matter for the jury to
determine whether something more than the minimum was required under the
evidence in the case.” ’ A railroad company is not necessarily free from
negligence, even though it may have literally complied with safety statutes or
rules. The circumstances may require it to do more.” (Hogue v. Southern Pacific
Co. (1969) 1 Cal.3d 253, 258 [81 Cal.Rptr. 765, 460 P.2d 965], internal citations
omitted; Peri v. Los Angeles Junction Ry. Co. (1943) 22 Cal.2d 111, 126 [137
P.2d 441].)
• “If the peculiar characteristics of a crossing call for the installation of automatic
protection—or the upgrading of existing automatic protection—the railroad may
be guilty of negligence in failing to provide such protection.” (Romo v. Southern
Pacific Transportation Co. (1977) 71 Cal.App.3d 909, 916 [139 Cal.Rptr. 787],
internal citations omitted.)
• “We hold that . . . federal regulations adopted by the Secretary of
Transportation pre-empt respondent’s negligence action only insofar as it asserts
that petitioner’s train was traveling at an excessive speed.” (CSX Transportation,
Inc., supra, 507 U.S. at p. 676.)
• “When the [Federal Highway Administration] approves a crossing improvement
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RAILROAD CROSSINGS CACI No. 801
project and the State installs the warning devices using federal funds, [federal
regulations] establish a federal standard for the adequacy of those devices that
displaces state tort law addressing the same subject.” (Norfolk Southern Railway
Co., supra, 529 U.S. at p. 357.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.4
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
802. Reserved for Future Use
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803. Regulating Speed
[A railroad company] [A train operator] must use reasonable care to
control the train’s speed as it approaches and passes through a railroad
crossing. The [railroad company] [train operator] must control train
speed with due regard for the safety of human life and property, taking
into consideration the location and conditions of the crossing.
New September 2003
Directions for Use
This instruction may not be appropriate in certain cases. Regulations adopted by the
Secretary of Transportation pursuant to the Federal Railroad Safety Act preempt
state common-law negligence claims based on general allegations of “excessive
speed.” (CSX Transportation, Inc. v. Easterwood (1993) 507 U.S. 658, 675 [113
S.Ct. 1732, 123 L.Ed.2d 387].) However, a negligence action based on a duty to
slow or stop a train to avoid a specific, individual hazard is not preempted. (CSX
Transportation, Inc., supra, 507 U.S. at 676, fn. 15.)
Sources and Authority
• “We hold that . . . federal regulations adopted by the Secretary of
Transportation pre-empt respondent’s negligence action only insofar as it asserts
that petitioner’s train was traveling at an excessive speed.” (CSX Transportation,
Inc., supra, 507 U.S. at p. 676.)
• “While it is true that no rate of speed is negligence per se in the absence of a
statute or ordinance, it does not follow that a railroad company will be permitted
to run its trains under all conditions at any rate of speed it may choose. It must
regulate its speed with proper regard for the safety of human life and property,
especially when running through towns and cities. . . . [T]he question whether
or not a rate of speed is excessive is one of fact for the jury.” (Young v. Pacific
Electric Ry. Co. (1929) 208 Cal. 568, 572–573 [283 P. 61].)
• “The ‘reasonably prudent person’ test applies also to the speed at which a train
approaches and passes a crossing, and material in the application of that test is
‘that no unnecessary risk shall be cast upon the public’ considering the ‘location
and surroundings’ of the crossing involved. Specially mentioned is a ‘crossing in
a thickly populated community and extensively used.’ ” (Rice v. Southern Pacific
Co. (1967) 247 Cal.App.2d 701, 707 [55 Cal.Rptr. 840], internal citations
omitted.)
• “[I]t is for the jury to say whether the speed of a train was too high for a
particular intersection.” (Romo v. Southern Pacific Transportation Co. (1977) 71
Cal.App.3d 909, 916 [139 Cal.Rptr. 787].)
• Even when crossing protection is provided and the company speed limit is not
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exceeded, speeding is still a question of fact. (Herrera v. Southern Pacific Co.
(1957) 155 Cal.App.2d 781, 787 [318 P.2d 784].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.5
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.26[6] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
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804. Lookout for Crossing Traffic
A train operator must keep a reasonable lookout for vehicles and people.
If an operator discovers, or should have discovered, that a vehicle or a
person is on or near the track, the operator must use reasonable care to
avoid causing harm.
New September 2003
Directions for Use
For an instruction regarding the right to expect that others will use reasonable care,
see CACI No. 411, Reliance on Good Conduct of Others.
Regulations adopted by the Secretary of Transportation pursuant to the Federal
Railroad Safety Act preempt state common-law negligence claims based on general
allegations of “excessive speed.” (CSX Transportation, Inc. v. Easterwood (1993)
507 U.S. 658, 675 [113 S.Ct. 1732, 123 L.Ed.2d 387].) However, a negligence
action based on a duty to slow or stop a train to avoid a specific, individual hazard
is not preempted. (CSX Transportation, Inc., supra, 507 U.S. at p. 675, fn. 15.)
Sources and Authority
• “Obviously, the railroad may not be required to guarantee the safety of those
crossing its tracks. It is not required to anticipate that at every crossing, an
automobile will be driven in the path of the train. It is only required to exercise
ordinary care to discover such automobiles and to thereafter exercise care to
avoid a collision.” (Essick v. Union Pacific Ry. Co. (1960) 182 Cal.App.2d 456,
463 [6 Cal.Rptr. 208].)
• The following instruction was approved in Essick, supra, 182 Cal.App.2d at p.
461: “ ‘The duty of [defendant] toward persons using the private crossing we are
here concerned with was to exercise ordinary care to discover any such persons
on or near the crossing and to exercise ordinary care to avoid injuring such
persons after their presence on or near the track was discovered.’ ”
• “The train crew cannot assume that a highway crossing in the middle of a city
will be clear and they must keep a reasonable lookout for the presence of
intersecting traffic. This implies as a corollary the further obligation to have the
train under such control as may be reasonably necessary to deal with situations
which an ordinarily prudent operator would anticipate.” (Herrera v. Southern
Pacific Co. (1957) 155 Cal.App.2d 781, 785 [318 P.2d 784], internal citations
omitted.)
• “The installation and maintenance of automatic signals does not relieve a
railroad company of this duty of keeping a reasonable lookout for other traffic.”
(Herrera, supra, 155 Cal.App.2d at p. 786, internal citations omitted.)
• “We hold that . . . federal regulations adopted by the Secretary of
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RAILROAD CROSSINGS CACI No. 804
Transportation pre-empt respondent’s negligence action only insofar as it asserts
that petitioner’s train was traveling at an excessive speed.” (CSX Transportation,
Inc., supra, 507 U.S. at p. 676.) However, a negligence action based on a duty
to slow or stop a train to avoid a specific, individual hazard is not preempted.
(Ibid, fn. 15.)
• In a thoughtful opinion, the Oklahoma Supreme Court has held the following:
“We hold that a specific, individual hazard is a person, vehicle, obstruction,
object, or event which is not a fixed condition or feature of the crossing and
which is not capable of being taken into account by the Secretary of
Transportation in the promulgation of uniform, national speed regulations. In
short, a specific, individual hazard refers to a unique occurrence which could
lead to a specific and imminent collision and not to allegedly dangerous
conditions at a particular crossing.” (Myers v. Missouri Pacific Railroad Co.
(Okla. 2002) 52 P.3d 1014, 1027, footnotes omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.6
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.26[2] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.62
(Matthew Bender)
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Copyright Judicial Council of California
805. Installing Warning Systems
Railroad companies must post signs or other devices that give the public
reasonable warning of the presence of its tracks. A railroad company
must use reasonable care in the design, installation, operation, and
maintenance of its warning signals and protective systems. The amount
of care that is reasonable depends on the particular characteristics of
each crossing.
New September 2003
Directions for Use
This instruction may not be appropriate in certain cases. Claims alleging inadequate
warning devices are preempted where federally funded grade crossing improvements
have been installed. (Norfolk Southern Railway Co. v. Shanklin (2000) 529 U.S.
344, 353 [120 S.Ct. 1467, 146 L.Ed.2d 374].)
Sources and Authority
• “[O]nce the [Federal Highway Administration] has funded the crossing
improvement and the warning devices are actually installed and operating, the
regulation ‘displace[s] state and private decision-making authority by
establishing a federal-law requirement that certain devices be installed or federal
approval obtained.’ ” (Norfolk Southern Railway Co., supra, 529 U.S. at p. 354,
internal citation omitted.)
• “It should be noted that nothing prevents a State from revisiting the adequacy of
devices installed using federal funds. States are free to install more protective
devices at such crossings with their own funds or with additional funding from
the FHWA. What States cannot do—once they have installed federally funded
devices at a particular crossing—is hold the railroad responsible for the
adequacy of those devices.” (Norfolk Southern Railway Co., supra, 529 U.S. at
p. 358.)
• “If the peculiar characteristics of a crossing call for the installation of automatic
protection—or the upgrading of existing automatic protection—the railroad may
be guilty of negligence in failing to provide such protection.” (Romo v. Southern
Pacific Transportation Co. (1977) 71 Cal.App.3d 909, 916 [139 Cal.Rptr. 787],
internal citation omitted.)
• “Whether a railroad is negligent in the design and maintenance of the crossing is
a question of fact for the jury.” (Wilkinson v. Southern Pacific Co. (1964) 224
Cal.App.2d 478, 487–488 [36 Cal.Rptr. 689], internal citation omitted.)
• “The defendant, having undertaken to warn travelers of the approach of its trains
by the use of a wigwag, was under a duty to use reasonable care in the
construction and maintenance of the signal system lest the appearance of safety
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RAILROAD CROSSINGS CACI No. 805
created by the presence of the device constitute a trap for persons relying upon it
for protection.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d 866, 869
[180 P.2d 896].)
• “Whatever may be the purpose of maintaining an automatic wig-wag signal at a
railroad crossing, even though it be intended to merely warn travelers of the
approach of trains, common justice demands that it shall be so constructed and
maintained that it will not lure travelers on the highway into danger. It follows
that a company which does maintain such a defective system will be held liable
for injuries sustained as the result of those imperfections, regardless of whether
the system was designed to warn travelers of the approach of trains rather than
to inform them of the danger from stationary cars which block the crossings.”
(Mallett v. Southern Pacific Co. (1937) 20 Cal.App.2d 500, 509 [68 P.2d 281].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.8–12.9
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
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806. Comparative Fault—Duty to Approach Crossing With Care
A driver approaching a railroad crossing is required to use reasonable
care to discover whether a train is approaching. The amount of care that
is reasonable will depend on the circumstances. A railroad track is itself
a warning of danger. If the driver’s view of approaching trains is
blocked, the driver must use greater care than when the view is clear.
If a bell or signal has been placed to warn drivers of danger, a driver is
not required to use as much care as when there are no such warnings.
However, even if the warning devices are not activated, a driver must
use reasonable care in looking and listening for approaching trains.
New September 2003; Revised December 2009, May 2020
Directions for Use
For an instruction regarding the prima facie speed limits set by Vehicle Code section
22352, see CACI No. 707, Speed Limit. For an instruction on the duty of care of a
passenger, see CACI No. 711, The Passenger’s Duty of Care for Own Safety. For
instructions on negligence per se, see CACI Nos. 418 to 421.
Sources and Authority
• Vehicle Proceeding at Railroad Crossing. Vehicle Code section 22451.
• Speed Limit at Railroad Crossing. Vehicle Code section 22352(a)(1).
• “[T]hat the driver’s view is somewhat obstructed does not make him
contributorily negligent as a matter of law; whether his failure to stop, the place
from which he looks and the character and extent of the obstruction to his view
are such that a reasonably prudent person would not have so conducted himself
are questions for the jury in determining whether he was guilty of contributory
negligence.” (Lucas v. Southern Pacific Co. (1971) 19 Cal.App.3d 124, 139 [96
Cal.Rptr. 356].)
• “A railroad track is itself a warning of danger and a driver intending to cross
must avail himself of every opportunity to look and listen; if there are
obstructions to the view, he is required to take greater care.” (Wilkinson v.
Southern Pacific Co. (1964) 224 Cal.App.2d 478, 488 [36 Cal.Rptr. 689],
internal citation omitted.)
• “A railroad company will not be permitted to encourage persons to relax their
vigil concerning the dangers that lurk in railroad crossings by assuring them,
through the erection of safety devices, that the danger has been removed or
minimized, and, at the same time, to hold them to the same degree of care as
would be required if those devices had not been provided.” (Will v. Southern
Pacific Co. (1941) 18 Cal.2d 468, 474 [116 P.2d 44], internal citation omitted.)
• “[A] driver may not cross tracks in reliance upon the safety appliances installed
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by the railroad with complete disregard for his own safety and recover damages
for injuries sustained by reason of his own failure to use reasonable care.” (Will,
supra, 18 Cal.2d at p. 475.)
• “Violation of the railroad’s statutory duty to sound bell and whistle at a highway
crossing does not absolve a driver from his failure to look and listen and, if
necessitated by circumstances such as obstructed vision, even to stop.”
(Wilkinson, supra, 224 Cal.App.2d at p. 489.)
• “It is settled that a railroad may not encourage persons traveling on highways to
rely on safety devices and then hold them to the same degree of care as if the
devices were not present.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d
866, 871 [180 P.2d 896].)
• “When a flagman or mechanical warning device has been provided at a railroad
crossing, the driver of an automobile is thereby encouraged to relax his
vigilance, and, in using other means to discover whether there is danger of
approaching trains, he is not required to exercise the same quantum of care as
would otherwise be necessary.” (Spendlove v. Pacific Electric Ry. Co. (1947) 30
Cal.2d 632, 634 [184 P.2d 873], internal citations omitted.)
• “When the case before us was tried January 30, 1958, the stop, look and listen
instruction was included in BAJI as instruction Number 203-B. Since the trial,
the editors of BAJI have concluded that the instruction does not conform to the
standards of negligence which prevail in California.” (Anello v. Southern Pacific
Co. (1959) 174 Cal.App.2d 317, 322 [344 P.2d 843].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts §§ 1039, 1239, 1240,
1479
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.10–12.12
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.27 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads § 485.67
(Matthew Bender)
807–899. Reserved for Future Use
603
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Copyright Judicial Council of California
COMMON CARRIERS
900. Introductory Instruction
901. Status of Common Carrier Disputed
902. Duty of Common Carrier
903. Duty to Provide and Maintain Safe Equipment
904. Duty of Common Carrier Toward Disabled/Infirm Passengers
905. Duty of Common Carrier Toward Minor Passengers
906. Duty of Passenger for Own Safety
907. Status of Passenger Disputed
908. Duty to Protect Passengers From Assault
909–999. Reserved for Future Use
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900. Introductory Instruction
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of defendant]’s negligence while [he/she/nonbinary pronoun] was a
passenger on [name of defendant]’s [insert type of carrier, e.g., train].
[In this case, [name of defendant] was a common carrier at the time of
the incident. A common carrier provides transportation to the general
public.]
[or]
[[Name of plaintiff] also claims that [name of defendant] was a common
carrier at the time of the incident.]
New September 2003
Directions for Use
Give either one of the bracketed sentences, depending on whether the defendant’s
status as a common carrier is contested or not.
This instruction is intended as an introductory instruction to frame the issues. CACI
No. 400, Negligence—Essential Factual Elements, would still be given to set forth
the elements that plaintiff has to prove in order to recover (i.e., negligence, harm,
and causation).
Sources and Authority
• “Common Carrier” Defined. Civil Code section 2168.
• “Carriage” Defined. Civil Code section 2085.
• “[A] common carrier within the meaning of Civil Code section 2168 is any
entity which holds itself out to the public generally and indifferently to transport
goods or persons from place to place for profit.” (Squaw Valley Ski Corporation
v. Superior Court (1992) 2 Cal.App.4th 1499, 1508 [3 Cal.Rptr.2d 897].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1055–1064
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.32 et seq.
(Matthew Bender)
California Civil Practice: Torts § 28:1 (Thomson Reuters)
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901. Status of Common Carrier Disputed
To prove that [name of defendant] was a common carrier, [name of
plaintiff] must prove that it was in the business of transporting [the
property of] the general public.
In deciding this issue, you may consider whether any of the following
factors apply. These factors suggest that a carrier is a common carrier:
(a) The carrier maintains a regular place of business for the purpose
of transporting passengers [or property].
(b) The carrier advertises its services to the general public.
(c) The carrier charges standard fees for its services.
(d) [Insert other applicable factor(s).]
A carrier can be a common carrier even if it does not have a regular
schedule of departures, a fixed route, or a transportation license.
If you find that [name of defendant] was not a common carrier, then
[name of defendant] did not have the duty of a common carrier, only a
duty of ordinary care.
New September 2003
Directions for Use
The court should give the ordinary negligence instructions in conjunction with this
one. Ordinary negligence is the standard applicable to private carriers.
Sources and Authority
• “Common Carrier” Defined. Civil Code section 2168.
• Contract of Carriage. Civil Code section 2085.
• “[A] common carrier within the meaning of Civil Code section 2168 is any
entity which holds itself out to the public generally and indifferently to transport
goods or persons from place to place for profit.” (Squaw Valley Ski Corp. v.
Superior Court (1992) 2 Cal.App.4th 1499, 1508 [3 Cal.Rptr.2d 897], internal
citations omitted.)
• “Whether a party is a common carrier for reward may be decided as a matter of
law when the material facts are not in dispute. When the material facts are
disputed, it is a question of fact for the jury.” (Huang v. The Bicycle Casino, Inc.
(2016) 4 Cal.App.5th 329, 339 [208 Cal.Rptr.3d 591 [citing this instruction].)
• “Factors bearing on a party’s common carrier status include (1) whether the
party maintained an established place of business for the purpose of transporting
passengers; (2) whether the party engaged in transportation as a regular business
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and not as a casual or occasional undertaking; (3) whether the party advertised
its transportation services to the general public; and (4) whether the party
charged standard rates for its service. The party need not have a regular schedule
or a fixed route to be a common carrier, nor need the party have a transportation
license. [¶] Not all these factors need be present for the party to be a common
carrier subject to the heightened duty of care.” (Huang, supra, 4 Cal.App.5th at
p. 339, internal citations omitted; see also Gradus v. Hanson Aviation, Inc.
(1984) 158 Cal.App.3d 1038, 1047–1048 [205 Cal.Rptr. 211] [approving jury
instruction].)
• “In deciding whether [defendant] is a common carrier, a court may properly
consider whether (1) the defendant maintains a regular place of business for the
purpose of transportation; (2) the defendant advertises its services to the general
public; and (3) the defendant charges standard fees for its services.” (Martine v.
Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 725 [238
Cal.Rptr.3d 237, citing this instruction].)
• “Common carrier status emerged in California in the mid-19th century as a
narrow concept involving stagecoaches hired purely for transportation. Over
time, however, the concept expanded to include a wide array of recreational
transport like scenic airplane and railway tours, ski lifts, and roller coasters. This
expansion reflects the policy determination that a passenger’s purpose, be it
recreation, thrill-seeking, or simply conveyance from point A to B, should not
control whether the operator should bear a higher duty to protect the passenger.”
(Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1294 [222
Cal.Rptr.3d 633], internal citations omitted.)
• “[T]he key inquiry in the common carrier analysis is whether passengers expect
the transportation to be safe because the operator is reasonably capable of
controlling the risk of injury.” (Grotheer, supra, 14 Cal.App.5th at p. 1295 [hot
air balloon is not a common carrier].)
• “A private carrier . . . is bound only to accept carriage pursuant to special
agreement.” (Webster v. Ebright (1992) 3 Cal.App.4th 784, 787 [4 Cal.Rptr.2d
714].) Private carriers “ ‘make no public profession that they will carry for all
who apply, but . . . occasionally or upon the particular occasion undertake for
compensation to carry the goods of others upon such terms as may be agreed
upon.’ ” (Id. at p. 788, internal citations omitted.)
• “ ‘[T]he law applicable to common carriers is peculiarly rigorous, and it ought
not to be extended to persons who have not expressly assumed that character, or
by their conduct and from the nature of their business justified the belief on the
part of the public that they intended to assume it.’ ” (Samuelson v. Public
Utilities Com. (1951) 36 Cal.2d 722, 730 [227 P.2d 256], internal citation
omitted.)
• “To be a common carrier, the entity merely must be of the character that
members of the general public may, if they choose, avail themselves of it.”
(Squaw Valley Ski Corp., supra, 2 Cal.App.4th at pp. 1509–1510, internal
citation omitted.)
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COMMON CARRIERS CACI No. 901
• “Given the fact [defendant] indiscriminately offers its Shirley Lake chair lift to
the public to carry skiers at a fixed rate from the bottom to the top of the Shirley
Lake run, it logically comes within the Civil Code section 2168 definition of a
common carrier.” (Squaw Valley Ski Corp., supra, 2 Cal.App.4th at p. 1508.)
• “[T]he ‘reward’ contemplated by the statutory scheme need not be a fee charged
for the transportation service. The reward may be the profit generated indirectly
by easing customers’ way through the carriers’ premises.” (Huang, supra, 4
Cal.App.5th at p. 339, internal citation omitted.)
• “ ‘[T]he “public” does not mean everyone all of the time; naturally, passengers
are restricted by the type of transportation the carrier affords. [Citations.] “One
may be a common carrier though the nature of the service rendered is
sufficiently specialized as to be of possible use to only a fraction of the total
population.” . . . To be a common carrier, the entity merely must be of the
character that members of the general public may, if they choose, avail
themselves of it.’ ” (Huang, supra, 4 Cal.App.5th at p. 339, internal citation
omitted.)
• “Plaintiff also argues the public policy of protecting passengers of a common
carrier for reward, as expressed in Civil Code section 2100, precludes limiting
defendant’s duty to riders on [bumper cars]. In Gomez v. Superior Court [(2005)
35 Cal.4th 1125, 1136, fn. 5 [29 Cal. Rptr. 3d 352, 113 P.3d 41]], we held that
an operator of a ‘roller coaster or similar amusement park ride can be a carrier
of persons for reward’ for purposes of Civil Code section 2100. At the same
time, however, we expressed no opinion ‘whether other, dissimilar, amusement
rides or attractions can be carriers of persons for reward.’ ” (Nalwa v. Cedar
Fair, L.P. (2012) 55 Cal.4th 1148, 1160 [150 Cal.Rptr.3d 551, 290 P.3d 1158]
[bumper car ride is not common carrier].)
• “In the situation at bar, [defendant]’s motor cars were customarily and daily
cruising the streets for patronage or awaiting calls of the public. It was a
common carrier in transporting such patrons. But when it agreed to act as carrier
of handicapped school children under agreement for its operators to escort the
pupils to and from their schools and homes to the cab and to render such service
exclusively for them at designated hours, the company ceased to be a common
carrier while transporting the specified children during such hours.” (Hopkins v.
Yellow Cab Co. (1952) 114 Cal.App.2d 394, 398 [250 P.2d 330].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1056
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.14 (Matthew
Bender)
3 California Points and Authorities, Ch. 33, Carriers, § 33.29 (Matthew Bender)
California Civil Practice: Torts §§ 28:1–28:2 (Thomson Reuters)
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902. Duty of Common Carrier
Common carriers must carry passengers [or property] safely. Common
carriers must use the highest care and the vigilance of a very cautious
person. They must do all that human care, vigilance, and foresight
reasonably can do under the circumstances to avoid harm to passengers
[or property].
While a common carrier does not guarantee the safety of its passengers
[or property that it transports], it must use reasonable skill to provide
everything necessary for safe transportation, in view of the
transportation used and the practical operation of the business.
New September 2003
Sources and Authority
• Duty of Common Carrier. Civil Code section 2100.
• “Common carriers bind themselves to carry safely those whom they take into
their vehicles, and owe both a duty of utmost care and the vigilance of a very
cautious person towards their passengers. Such carriers are responsible for any,
even the slightest, negligence and are required to do all that human care,
vigilance, and foresight reasonably can do under all the circumstances.” (Acosta
v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 19, 27 [84 Cal.Rptr.
184, 465 P.2d 72], internal citations omitted.)
• “The Civil Code treats common carriers differently depending on whether they
act gratuitously or for reward. ‘A carrier of persons without reward must use
ordinary care and diligence for their safe carriage.’ But ‘[c]arriers of persons for
reward have long been subject to a heightened duty of care.’ Such carriers ‘must
use the utmost care and diligence for [passengers’] safe carriage, must provide
everything necessary for that purpose, and must exercise to that end a reasonable
degree of skill.’ While these carriers are not insurers of their passengers’ safety,
‘[t]his standard of care requires common carriers ‘to do all that human care,
vigilance, and foresight reasonably can do under the circumstances.’ ” (Huang v.
The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 338 [208 Cal.Rptr.3d 591],
internal citations omitted.)
• “This elevated standard of care for common carriers has its origin in English
common law. It is based on a recognition that the privilege of serving the public
as a common carrier necessarily entails great responsibility, requiring common
carriers to exercise a high duty of care towards their customers.” (Squaw Valley
Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507 [3 Cal.Rptr.2d
897], internal citations omitted.)
• “Common carriers are not, however, insurers of their passengers’ safety. Rather,
the degree of care and diligence which they must exercise is only such as can
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COMMON CARRIERS CACI No. 902
reasonably be exercised consistent with the character and mode of conveyance
adopted and the practical operation of the business of the carrier.” (Lopez v.
Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 [221 Cal.Rptr. 840,
710 P.2d 907], internal citations omitted.)
• “[I]f a passenger injures herself when encountering minor commonplace hazards
that one expects in a station or terminal, the heightened duty does not apply.”
(Churchman v. Bay Area Rapid Transit Dist. (2019) 39 Cal.App.5th 246, 251
[252 Cal.Rptr.3d 167].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1055, 1057
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.02 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.32 et seq.
(Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers, § 33.22 (Matthew Bender)
22 California Legal Forms, Ch. 54, Shipment of Property, § 54.32 (Matthew Bender)
California Civil Practice: Torts §§ 28:6–28:9 (Thomson Reuters)
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903. Duty to Provide and Maintain Safe Equipment
Common carriers must use the highest care in constructing, servicing,
inspecting, and maintaining their vehicles and equipment for
transporting passengers [or property].
A common carrier is responsible for a defect in its vehicles and
equipment used for transporting passengers [or property] if the common
carrier:
(a) Created the defect; or
(b) Knew of the defect; or
(c) Would have known of the defect if it had used the highest care.
Common carriers must keep up with modern improvements in
transportation. While they are not required to seek out and use every
new invention, they must adopt commonly accepted safety designs and
devices in the vehicles and equipment they use for transporting
passengers [or property].
New September 2003
Directions for Use
To correct the impression that a carrier is absolutely liable for unsafe equipment,
this instruction should be given together with instructions stating that a common
carrier does not guarantee the safety of its passengers and that the level of care is
the highest that reasonably can be exercised consistent with the mode of
transportation used and the practical operation of its business as a carrier (see CACI
No. 902, Duty of Common Carrier). (Gradus v. Hanson Aviation, Inc. (1984) 158
Cal.App.3d 1038, 1049–1050 [205 Cal.Rptr. 211].)
Sources and Authority
• Duty of Common Carrier. Civil Code section 2101.
• “The duty of care imposed on a common carrier of passengers includes the duty
to furnish safe facilities for their passage.” (Cooper v. National Railroad
Passenger Corporation (1975) 45 Cal.App.3d 389, 395 [119 Cal.Rptr. 541],
internal citations omitted, disapproved on other grounds in Ewing v. Cloverleaf
Bowl (1978) 20 Cal.3d 389, 401 [143 Cal.Rptr. 13, 572 P.2d 1155].)
• Failure to give an instruction on Civil Code section 2101 may not be error
where an instruction on the “utmost care” standard is given. (Powell v. Dell-Air
Aviation, Inc. (1968) 268 Cal.App.2d 451, 457–458 [74 Cal.Rptr. 3].)
• The Supreme Court found error where an instruction omitted the duty to inspect:
“An owner is bound to use the utmost care and diligence in the maintenance of
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COMMON CARRIERS CACI No. 903
elevators. In the fulfillment of this obligation something more than regular and
frequent inspections is required. Perfunctory inspections, although regularly and
frequently made, would not meet the obligation appellant owed to respondents.
In order to fulfill the duty imposed upon it by law appellant was required to use
due care in servicing, inspecting and maintaining the elevator and all the
appliances appurtenant thereto. The instruction erroneously failed to include this
requirement.” (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256,
261 [143 P.2d 929], internal citations omitted.)
• “The [equipment] must, therefore, under the standard of utmost care required of
a carrier, be constructed, maintained and operated with the purpose and design to
prevent injury . . . .” (Vandagriff v. J.C. Penney (1964) 228 Cal.App.2d 579, 582
[39 Cal.Rptr. 671].)
• Notice of defect is required where the carrier did not create dangerous condition:
“In our view, the high degree of care required of a common carrier might
impose a greater duty to inspect and thus make notice or knowledge more easily
established, but the concept of the carrier’s legal responsibility does not exclude
the factor of notice or knowledge. The weight of authority supports the
proposition that, in cases such as the instant one, actual or constructive notice is
a prerequisite to the carrier’s liability.” (Gray v. City and County of San
Francisco (1962) 202 Cal.App.2d 319, 330–331 [20 Cal.Rptr. 894].)
• Common carriers “must keep pace with science and art and modern
improvement in their application to the carriage of passengers.” (Greyhound
Lines, Inc. v. Superior Court (1970) 3 Cal.App.3d 356, 359 [83 Cal.Rptr. 343],
citing Treadwell v. Whittier (1889) 80 Cal. 574, 592, 600 [22 P. 266].)
• In Treadwell, the court approved of a jury instruction stating that while elevator
operators “were not required to seek and apply every new invention, they must
adopt such as are found by experience to combine the greater safety with
practical use.” The court said the instruction “is but a fair deduction from the
rule that the defendants must use the utmost care and diligence to carry safely
those who ride in their [conveyance] . . . .” (Treadwell, supra, 80 Cal. at pp.
599–600.) The court held that common carriers “are bound for defects in the
vehicles which they furnish, which might have been discovered by the most
careful examination . . . .” (Id. at p. 595.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1055, 1057
2 Levy et al., California Torts, Ch 23, Carriers, § 23.03[5] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
California Civil Practice: Torts § 28:15 (Thomson Reuters)
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904. Duty of Common Carrier Toward Disabled/Infirm Passengers
If a common carrier voluntarily accepts an ill or a disabled person as a
passenger and is aware of that person’s condition, it must use as much
additional care as is reasonably necessary to ensure the passenger’s
safety.
New September 2003
Sources and Authority
• If a carrier voluntarily accepts an ill or disabled person as a passenger and is
aware of the passenger’s condition, it must exercise as much care as is
reasonably necessary to ensure the safety of the passenger, in view of his mental
and physical condition. (McBride v. Atchison, Topeka & Santa Fe Ry. Co. (1955)
44 Cal.2d 113, 119–120 [279 P.2d 966].)
Secondary Sources
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.02[6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
California Civil Practice: Torts § 28:6 (Thomson Reuters)
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905. Duty of Common Carrier Toward Minor Passengers
If a common carrier voluntarily accepts a child as a passenger, it must
use as much additional care as is reasonably necessary to ensure the
child’s safety.
New September 2003
Sources and Authority
• A common carrier owes a greater duty of care to minor passengers: “It is settled
law that a carrier owes a greater quantum of care to a child of tender years
accepted by it as a passenger than it would to an adult.” (Brizzolari v. Market
Street Ry. Co. (1935) 7 Cal.App.2d 246, 248 [46 P.2d 783].)
• “In this instruction, the court admonished the jury that a carrier of passengers
owes to children who are passengers on its cars a greater degree of care than it
owes to adults. Such an instruction is proper.” (Mudrick v. Market Street Ry. Co.
(1938) 11 Cal.2d 724, 734 [81 P.2d 950].)
Secondary Sources
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.02[6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
California Civil Practice: Torts § 28:6 (Thomson Reuters)
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906. Duty of Passenger for Own Safety
While a common carrier must use the highest care for its passengers’
safety, passengers need only use reasonable care for their own safety.
New September 2003; Revised May 2017
Directions for Use
This instruction is intended to clarify that passengers and common carriers have
different standards of care.
Sources and Authority
• “As applied to the standard of care imposed upon the common carrier as
compared to the standard imposed on the passenger it is both erroneous and
misleading to tell the jury, as was done here, that there are no degrees of
negligence or contributory negligence in California, since the common carrier is
in fact held to a higher degree of care than is the passenger. To follow this
erroneous and misleading statement with the instruction, in the identical
language used in another instruction concerning the defendant carrier’s duty of
care, that ‘any negligence, however slight,’ of the decedent proximately
contributing to her death would bar a recovery, was to inform the jury that in
determining negligence and contributory negligence they must apply the same
standard of care.” (Wilson v. City and County of San Francisco (1959) 174
Cal.App.2d 273, 276 [344 P.2d 828].)
• ‘Whether unidentified passengers might be primarily or partially responsible for
[plaintiff]’s injury, or whether she bears some responsibility for it herself, are
questions for the trier of fact in considering causation.” (Huang v. The Bicycle
Casino, Inc. (2016) 4 Cal.App.5th 329, 346 [208 Cal.Rptr.3d 591].)
Secondary Sources
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.07[1] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2 California Civil Practice: Torts § 28:32 (Thomson Reuters)
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907. Status of Passenger Disputed
A common carrier owes the highest care and vigilance to persons only
while they are passengers. [Name of plaintiff] claims that
[he/she/nonbinary pronoun] was [name of defendant]’s passenger at the
time of the incident.
To establish that [name of plaintiff] was a passenger, [he/she/nonbinary
pronoun] must prove all of the following:
1. That [name of plaintiff] intended to become a passenger;
2. That [name of plaintiff] was accepted as a passenger by [name of
defendant]; and
3. That [name of plaintiff] placed [himself/herself/nonbinary pronoun]
under the control of [name of defendant].
To be a passenger, it is not necessary for the person to actually enter the
carrier’s vehicle [or name mode of travel, e.g., bus, train]; however, the
carrier must have taken some action indicating acceptance of the person
as a passenger. A person continues to be a passenger until the person
safely leaves the carrier’s vehicle [or equipment].
A common carrier must use the highest care and vigilance in providing
its passengers with a safe place to get on and off its vehicles [or
equipment].
New September 2003; Revised May 2020
Sources and Authority
• The heightened degree of care for common carriers is owed only while
“passengers are in transitu, and until they have safely departed the carrier’s
vehicle.” (Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 86 [110
Cal.Rptr. 416].)
• The relationship of carrier and passenger is “created when one offers to become
a passenger, and is accepted as a passenger after he has placed himself under the
control of the carrier.” (Grier v. Ferrant (1944) 62 Cal.App.2d 306, 310 [144
P.2d 631].)
• It is not necessary that the passenger have entered the vehicle for the
relationship to exist: “ ‘The relation is in force when one, intending in good faith
to become a passenger, goes to the place designated as the site of departure at
the appropriate time and the carrier takes some action indicating acceptance of
the passenger as a traveler.’ ” (Orr v. Pacific Southwest Airlines (1989) 208
Cal.App.3d 1467, 1473 [257 Cal.Rptr. 18], internal citations omitted.)
• The carrier-passenger relationship terminates once the passenger has disembarked
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and entered a place of relative safety. (McGettigan v. Bay Area Rapid Transit
Dist. (1997) 57 Cal.App.4th 1011, 1018 [67 Cal.Rptr.2d 516].)
• Carriers must exercise utmost care “ ‘[u]ntil the passenger reaches a place
outside the sphere of any activity of the carrier which might reasonably
constitute a mobile or animated hazard to the passenger.’ ” (Brandelius v. City
and County of San Francisco (1957) 47 Cal.2d 729, 735 [306 P.2d 432], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1058, 1059
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.02[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.36 (Matthew
Bender)
2A California Points and Authorities, Ch. 33, Carriers, § 33.22 (Matthew Bender)
2 California Civil Practice: Torts § 28:7 (Thomson Reuters)
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908. Duty to Protect Passengers From Assault
[Name of plaintiff] claims that [name of defendant] was negligent in failing
to prevent an attack by another. To establish this claim, [name of
plaintiff] must prove both of the following:
1. That [name of defendant] knew or, by using the highest care,
should have known that a passenger was reasonably likely to
attack another passenger; and
2. That by using the highest care, [name of defendant] could have
prevented or reduced the harm from the attack.
New September 2003
Directions for Use
This instruction must be used in conjunction with the instructions in the negligence
series.
Sources and Authority
• Restatement Second of Torts, section 315 states:
As a general rule, one owes no duty to control the conduct of another, nor to
warn those endangered by such conduct. Such a duty may arise, however, if
(a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person’s
conduct, or
(b) a special relation exists between the actor and the other which
gives the other a right of protection.
• The Supreme Court has held that “[t]he relationship between a common carrier
and its passengers is . . . a special relationship.” (Lopez v. Southern Cal. Rapid
Transit Dist. (1985) 40 Cal.3d 780, 789 [221 Cal.Rptr. 840, 710 P.2d 907].)
• The common carrier standard of “utmost care” applies to the duty of a carrier to
protect a passenger from assaults by fellow passengers. (Terrell v. Key System
(1945) 69 Cal.App.2d 682, 686 [159 P.2d 704].) However, the duty can only
arise if “in the exercise of the required degree of care the carrier has or should
have knowledge of conditions from which it may reasonably be apprehended
that an assault on a passenger may occur, and has the ability in the exercise of
that degree of care to prevent the injury.” (Ibid., internal citations omitted.)
• The Lopez court stated the standard of care as follows: “[C]arriers are not
insurers of their passenger’s safety and will not automatically be liable,
regardless of the circumstances, for any injury suffered by a passenger at the
hands of a fellow passenger. Rather, a carrier is liable for injuries resulting from
an assault by one passenger upon another only where, in the exercise of the
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required degree of care, the carrier has or should have knowledge from which it
may reasonably be apprehended that an assault on a passenger may occur, and
has the ability in the exercise of that degree of care to prevent the injury.”
(Lopez, supra, 40 Cal.3d at p. 791, internal citation omitted.)
• There is no liability when a sudden assault occurs with no warning. (City and
County of San Francisco v. Superior Court (1994) 31 Cal.App.4th 45, 49 [36
Cal.Rptr.2d 372].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1062, 1063
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.03[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
California Civil Practice: Torts § 28:16 (Thomson Reuters)
909–999. Reserved for Future Use
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PREMISES LIABILITY
1000. Premises Liability—Essential Factual Elements
1001. Basic Duty of Care
1002. Extent of Control Over Premises Area
1003. Unsafe Conditions
1004. Obviously Unsafe Conditions
1005. Business Proprietor’s or Property Owner’s Liability for the Criminal
Conduct of Others
1006. Landlord’s Duty
1007. Sidewalk Abutting Property
1008. Liability for Adjacent Altered Sidewalk—Essential Factual Elements
1009A. Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions
1009B. Liability to Employees of Independent Contractors for Unsafe
Conditions—Retained Control
1009C. Reserved for Future Use
1009D. Liability to Employees of Independent Contractors for Unsafe
Conditions—Defective Equipment
1010. Affirmative Defense—Recreation Immunity—Exceptions (Civ. Code, § 846)
1011. Constructive Notice Regarding Dangerous Conditions on Property
1012. Knowledge of Employee Imputed to Owner
1013–1099. Reserved for Future Use
VF-1000. Premises Liability—Comparative Negligence of Others Not at Issue
VF-1001. Premises Liability—Affirmative Defense—Recreation
Immunity—Exceptions
VF-1002. Premises Liability—Comparative Fault of Plaintiff at Issue
VF-1003–VF-1099. Reserved for Future Use
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1000. Premises Liability—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because of the way [name of defendant] managed [his/her/nonbinary
pronoun/its] property. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] was negligent in the use or maintenance
of the property;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised June 2005, December 2011
Directions for Use
For cases involving public entity defendants, see instructions on dangerous
conditions of public property (CACI No. 1100 et seq.).
Sources and Authority
• General Duty to Exercise Due Care. Civil Code section 1714(a).
• “The elements of a negligence claim and a premises liability claim are the same:
a legal duty of care, breach of that duty, and proximate cause resulting in injury.
Premises liability ‘ “is grounded in the possession of the premises and the
attendant right to control and manage the premises” ’; accordingly, ‘ “mere
possession with its attendant right to control conditions on the premises is a
sufficient basis for the imposition of an affirmative duty to act.” ’ But the duty
arising from possession and control of property is adherence to the same
standard of care that applies in negligence cases. In determining whether a
premises owner owes a duty to persons on its property, we apply the Rowland
[Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561]]
factors. Indeed, Rowland itself involved premises liability.’ ” (Kesner v. Superior
Court (2016) 1 Cal.5th 1132, 1159 [210 Cal.Rptr.3d 283, 384 P.3d 283], internal
citations omitted.)
• “The owner of premises is under a duty to exercise ordinary care in the
management of such premises in order to avoid exposing persons to an
unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v.
Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [264
Cal.Rptr. 756].)
• “ ‘[P]roperty owners are liable for injuries on land they own, possess, or
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control.’ But . . . the phrase ‘own, possess, or control’ is stated in the
alternative. A defendant need not own, possess and control property in order to
be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th
1149, 1162 [60 Cal.Rptr.2d 448, 929 P.2d 1239], original italics, internal
citations omitted.)
• “ ‘ “[A] landowner’s duty of care to avoid exposing others to a risk of injury is
not limited to injuries that occur on premises owned or controlled by the
landowner.” ’ ‘Rather, the duty of care encompasses a duty to avoid exposing
persons to risks of injury that occur off site if the landowner’s property is
maintained in such a manner as to expose persons to an unreasonable risk of
injury offsite.’ ” (Kesner, supra, 5 Cal.5th at p. 1159, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1224–1228
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.01
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, §§ 170.01, 170.20 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.01 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.11
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 16:1–16:3 (Thomson Reuters)
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1001. Basic Duty of Care
A person who [owns/leases/occupies/controls] property is negligent if that
person fails to use reasonable care to keep the property in a reasonably
safe condition. A person who [owns/leases/occupies/controls] property
must use reasonable care to discover any unsafe conditions and to repair,
replace, or give adequate warning of anything that could be reasonably
expected to harm others.
In deciding whether [name of defendant] used reasonable care, you may
consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in
the same manner as [name of plaintiff] did;
(c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether [name of defendant] knew or should have known of the
condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant]’s control over the condition that
created the risk of harm; [and]
(h) [Other relevant factor(s).]
New September 2003; Revised June 2010, May 2020
Directions for Use
Not all of these factors will apply to every case. Select those that are appropriate to
the facts of the case.
Under the doctrine of nondelegable duty, a property owner cannot escape liability
for failure to maintain property in a safe condition by delegating the duty to an
independent contractor. (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d
256, 260 [143 P.2d 929].) For an instruction for use with regard to a landowner’s
liability for the acts of an independent contractor, see CACI No. 3713,
Nondelegable Duty.
Sources and Authority
• “Broadly speaking, premises liability alleges a defendant property owner allowed
a dangerous condition on its property or failed to take reasonable steps to secure
its property against criminal acts by third parties.” (Delgado v. American Multi-
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Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [85 Cal.Rptr.2d 838],
internal citation omitted.)
• “It is now well established that California law requires landowners to maintain
land in their possession and control in a reasonably safe condition.” (Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137,
863 P.2d 207], internal citations omitted.)
• “To comply with this duty, a person who controls property must ‘ “ ‘ “inspect
[the premises] or take other proper means to ascertain their condition” ’ ” ’ and,
if a dangerous condition exists that would have been discovered by the exercise
of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats
v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 833 [236 Cal.Rptr.3d
236].)
• “[T]he measures an operator must take to comply with the duty to keep the
premises in a reasonably safe condition depend on the circumstances, and the
issue is a question for the jury unless the facts of the case are not reasonably in
dispute.” (Staats, supra, 25 Cal.App.5th at p. 840.)
• “An owner of real property is ‘not the insurer of [a] visitor’s personal
safety . . . .’ However, an owner is responsible ‘ “for an injury occasioned to
another by [the owner’s] want of ordinary care or skill in the management of his
or her property. . . .” ’ Accordingly, landowners are required ‘to maintain land in
their possession and control in a reasonably safe condition’, and to use due care
to eliminate dangerous conditions on their property.” (Taylor v. Trimble (2017)
13 Cal.App.5th 934, 943–944 [220 Cal.Rptr.3d 741], internal citations omitted.)
• “[T]he issue concerning a landlord’s duty is not the existence of the duty, but
rather the scope of the duty under the particular facts of the case. Reference to
the scope of the landlord’s duty ‘is intended to describe the specific steps a
landlord must take in a given specific circumstance to maintain the property’s
safety to protect a tenant from a specific class of risk.’ ” (Lawrence v. La Jolla
Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 23 [179 Cal.Rptr.3d 758],
original italics, internal citation omitted.)
• “The proper test to be applied to the liability of the possessor of land . . . is
whether in the management of his property he has acted as a reasonable man in
view of the probability of injury to others . . . .” (Rowland v. Christian (1968)
69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561].)
• “It is well settled that a property owner is not liable for damages caused by a
minor, trivial, or insignificant defect in his property. This principle is sometimes
referred to as the ‘trivial defect defense,’ although it is not an affirmative defense
but rather an aspect of duty that a plaintiff must plead and prove. . . . Moreover,
what constitutes a minor defect may be a question of law.” (Cadam v. Somerset
Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388–389 [132
Cal.Rptr.3d 617], internal citations omitted.)
• In this state, duties are no longer imposed on an occupier of land solely on the
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basis of rigid classifications of trespasser, licensee, and invitee. The purpose of
plaintiff’s presence on the land is not determinative. We have recognized,
however, that this purpose may have some bearing upon the liability issue. This
purpose therefore must be considered along with other factors weighing for and
against the imposition of a duty on the landowner.” (Ann M., supra, 6 Cal.4th at
pp. 674–675, internal citations omitted.)
• “As stated in Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20,
25 [77 Cal.Rptr. 914], ‘[t]he term “invitee” has not been abandoned, nor have
“trespasser” and “licensee.” In the minds of the jury, whether a possessor of the
premises has acted as a reasonable man toward a plaintiff, in view of the
probability of injury to him, will tend to involve the circumstances under which
he came upon defendant’s land; and the probability of exposure of plaintiff and
others of his class to the risk of injury; as well as whether the condition itself
presented an unreasonable risk of harm, in view of the foreseeable use of the
property.’ Thus, the court concluded, and we agree, Rowland ‘does not generally
abrogate the decisions declaring the substantive duties of the possessor of land to
invitees nor those establishing the correlative rights and duties of invitees.’ (Id.,
at p. 27.)” (Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d
479, 486–487 [227 Cal.Rptr. 465], overruled on other grounds in Soule v. GM
Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “The distinction between artificial and natural conditions [has been] rejected.”
(Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371 [178 Cal.Rptr. 783,
636 P.2d 1121].)
• “It must also be emphasized that the liability imposed is for negligence. The
question is whether in the management of his property, the possessor of land has
acted as a reasonable person under all the circumstances. The likelihood of
injury to plaintiff, the probable seriousness of such injury, the burden of reducing
or avoiding the risk, the location of the land, and the possessor’s degree of
control over the risk-creating condition are among the factors to be considered
by the trier of fact in evaluating the reasonableness of a defendant’s conduct.”
(Sprecher, supra, 30 Cal.3d at p. 372.)
• “[A] landowner’s duty of care to avoid exposing others to a risk of injury is not
limited to injuries that occur on premises owned or controlled by the landowner.
Rather, the duty of care encompasses a duty to avoid exposing persons to risks
of injury that occur off site if the landowner’s property is maintained in such a
manner as to expose persons to an unreasonable risk of injury offsite. (Annocki
v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 38 [180 Cal.Rptr.3d
474].)
• “The duty which a possessor of land owes to others to put and maintain it in
reasonably safe condition is nondelegable. If an independent contractor, no
matter how carefully selected, is employed to perform it, the possessor is
answerable for harm caused by the negligent failure of his contractor to put or
maintain the buildings and structures in reasonably safe condition, irrespective of
whether the contractor’s negligence lies in his incompetence, carelessness,
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inattention or delay.” (Brown, supra, 23 Cal.2d at p. 260.)
• “[A] defendant property owner’s compliance with a law or safety regulation, in
and of itself, does not establish that the owner has utilized due care. The owner’s
compliance with applicable safety regulations, while relevant to show due care,
is not dispositive, if there are other circumstances requiring a higher degree of
care.” (Lawrence, supra, 231 Cal.App.4th at p. 31.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1228
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-B, Landlord
Liability For Injuries From Acts Of Others, ¶ 6:48 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.01
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, §§ 170.01, 170.03, 170.20 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.01 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, §§ 334.10, 334.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.11
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 16:3 (Thomson Reuters)
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1002. Extent of Control Over Premises Area
[Name of plaintiff] claims that [name of defendant] controlled the property
involved in [name of plaintiff]’s harm, even though [name of defendant]
did not own or lease it. A person controls property that the person does
not own or lease when the person uses the property as if it were the
person’s own. A person is responsible for maintaining, in reasonably safe
condition, all areas that person controls.
New September 2003; Revised May 2020
Directions for Use
Use this instruction only for property that is not actually owned or leased by the
defendant.
Sources and Authority
• “[A] defendant’s duty to maintain land in a reasonably safe condition extends to
land over which the defendant exercises control, regardless of who owns the
land. ‘As long as the defendant exercised control over the land, the location of
the property line would not affect the defendant’s potential liability.’ ”
(University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429,
445 [241 Cal.Rptr.3d 616], internal citation omitted.)
• “[I]t is clear from [Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1167 [60 Cal.Rptr.2d
448, 929 P.2d 1239]] that simple maintenance of an adjoining strip of land
owned by another does not constitute an exercise of control over that property.
Although evidence of maintenance is considered ‘relevant on the issue of
control,’ the court limited its holding by stating that ‘the simple act of mowing a
lawn on adjacent property (or otherwise performing minimal, neighborly
maintenance of property owned by another) generally will [not], standing alone,
constitute an exercise of control over [the] property . . . .’ ” (Contreras v.
Anderson (1997) 59 Cal.App.4th 188, 198–199 [69 Cal.Rptr.2d 69].)
• “In Alcaraz . . . , our Supreme Court held that a landowner who exercises
control over an adjoining strip of land has a duty to protect or warn others
entering the adjacent land of a known hazard there. This duty arises even if the
person does not own or exercise control over the hazard and even if the person
does not own the abutting property on which the hazard is located. . . . [¶] The
Alcaraz court concluded that such evidence was ‘sufficient to raise a triable issue
of fact as to whether defendants exercised control over the strip of land
containing the meter box and thus owed a duty of care to protect or warn
plaintiff of the allegedly dangerous condition of the property.’ ” (Contreras,
supra, 59 Cal.App.4th at pp. 197–198, footnote and internal citations omitted.)
• “ ‘ “The crucial element is control.” [Citation.]’ ‘[W]e have placed major
importance on the existence of possession and control as a basis for tortious
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liability for conditions on the land.’ ” (Salinas v. Martin (2008) 166 Cal.App.4th
404, 414 [82 Cal.Rptr.3d 735], original italics, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1225, 1226
1 Levy et al., California Torts, Ch. 15, General Premises Liability, §§ 15.02–15.03
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, §§ 381.03–381.04 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.52 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 16:2 (Thomson Reuters)
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1003. Unsafe Conditions
[Name of defendant] was negligent in the use or maintenance of the
property if:
1. A condition on the property created an unreasonable risk of
harm;
2. [Name of defendant] knew or, through the exercise of reasonable
care, should have known about it; and
3. [Name of defendant] failed to repair the condition, protect against
harm from the condition, or give adequate warning of the
condition.
New September 2003; Revised April 2007, October 2008
Directions for Use
Read this instruction with CACI No. 1000, Premises Liability—Essential Factual
Elements, in a premises liability case involving an unsafe condition on property. If
there is an issue as to the owner’s constructive knowledge of the condition (element
2), also give CACI No. 1011, Constructive Notice Regarding Dangerous Conditions
on Property.
Sources and Authority
• “Where the occupier of land is aware of a concealed condition involving in the
absence of precautions an unreasonable risk of harm to those coming in contact
with it and is aware that a person on the premises is about to come in contact
with it, the trier of fact can reasonably conclude that a failure to warn or to
repair the condition constitutes negligence. Whether or not a guest has a right to
expect that his host will remedy dangerous conditions on his account, he should
reasonably be entitled to rely upon a warning of the dangerous condition so that
he, like the host, will be in a position to take special precautions when he comes
in contact with it.” (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70
Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘[T]he proprietor of a store who knows of, or by the exercise of reasonable
care could discover, an artificial condition upon his premises which he should
foresee exposes his business visitors to an unreasonable risk, and who has no
basis for believing that they will discover the condition or realize the risk
involved, is under a duty to exercise ordinary care either to make the condition
reasonably safe for their use or to give a warning adequate to enable them to
avoid the harm. . . .’ [Plaintiff] was entitled to have the jury so instructed.”
(Williams v. Carl Karcher Enters., Inc. (1986) 182 Cal.App.3d 479, 488 [227
Cal.Rptr. 465], internal citations omitted, disapproved on other grounds in Soule
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v. GM Corp. (1994) 8 Cal.4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d
298].)
• “Because the owner is not the insurer of the visitor’s personal safety, the owner’s
actual or constructive knowledge of the dangerous condition is a key to
establishing its liability. Although the owner’s lack of knowledge is not a
defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a]
defective condition of the premises, the owner or occupier “must have either
actual or constructive knowledge of the dangerous condition or have been able
by the exercise of ordinary care to discover the condition, which if known to
him, he should realize as involving an unreasonable risk to invitees on his
premises. . . .” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [114
Cal.Rptr.2d 470, 36 P.3d 11], internal citation omitted.)
• “Where the dangerous or defective condition of the property which causes the
injury has been created by reason of the negligence of the owner of the property
or his employee acting within the scope of the employment, the owner of the
property cannot be permitted to assert that he had no notice or knowledge of the
defective or dangerous condition in an action by an invitee for injuries suffered
by reason of the dangerous condition. Under such circumstances knowledge
thereof is imputed to him. Where the dangerous condition is brought about by
natural wear and tear, or third persons, or acts of God or by other causes which
are not due to the negligence of the owner, or his employees, then to impose
liability the owner must have either actual or constructive knowledge of the
dangerous condition or have been able by the exercise of ordinary care to
discover the condition, which if known to him, he should realize as involving an
unreasonable risk to invitees on his premises. His negligence in such cases is
founded upon his failure to exercise ordinary care in remedying the defect after
he has discovered it or as a man of ordinary prudence should have discovered
it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806 [117 P.2d 841], internal
citation omitted.)
• “Generally speaking, a property owner must have actual or constructive
knowledge of a dangerous condition before liability will be imposed. In the
ordinary slip-and-fall case, . . . the cause of the dangerous condition is not
necessarily linked to an employee. Consequently, there is no issue of respondeat
superior. Where, however, ‘the evidence is such that a reasonable inference can
be drawn that the condition was created by employees of the [defendant], then
[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.
Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641], internal
citation omitted.)
• “[U]nder current California law, a store owner’s choice of a particular ‘mode of
operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the
owner had knowledge of the dangerous condition that caused the accident.
Moreover, it would not be prudent to hold otherwise. Without this knowledge
requirement, certain store owners would essentially incur strict liability for slip-
and-fall injuries, i.e., they would be insurers of the safety of their patrons. For
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example, whether the french fry was dropped 10 seconds or 10 hours before the
accident would be of no consequence to the liability finding. However, this is
not to say that a store owner’s business choices do not impact the negligence
analysis. If the store owner’s practices create a higher risk that dangerous
conditions will exist, ordinary care will require a corresponding increase in
precautions.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479
[3 Cal.Rptr. 3d 813].)
• “Although liability might easily be found where the landowner has actual
knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of
the dangerous condition is not a defense. He has an affirmative duty to exercise
ordinary care to keep the premises in a reasonably safe condition, and therefore
must inspect them or take other proper means to ascertain their condition. And
if, by the exercise of reasonable care, he would have discovered the dangerous
condition, he is liable.’ ” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325,
330 [203 Cal.Rptr. 701], internal citation omitted.)
• “[A] real estate agent has a duty to notify visitors of marketed property of
concealed dangerous conditions of which the agent has actual or constructive
knowledge. The agent’s actual or constructive knowledge of a dangerous
condition is imputed to his or her principal, the property owner, who shares with
the agent liability for damages proximately caused by a breach of this duty.”
(Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141 [155 Cal.Rptr.3d
739].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1261–1265
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.02 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.51 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:4 (Thomson Reuters)
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1004. Obviously Unsafe Conditions
If an unsafe condition of the property is so obvious that a person could
reasonably be expected to observe it, then the [owner/lessor/occupier/one
who controls the property] does not have to warn others about the
dangerous condition.
However, the [owner/lessor/occupier/one who controls the property] still
must use reasonable care to protect against the risk of harm if it is
foreseeable that the condition may cause injury to someone who because
of necessity encounters the condition.
New September 2003; Revised May 2018
Directions for Use
Give this instruction with CACI No. 1001, Basic Duty of Care, if it is alleged that
the condition causing injury was obvious. The first paragraph addresses the lack of a
duty to warn of an obviously unsafe condition. (Jacobs v. Coldwell Banker
Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 [221 Cal.Rptr.3d 701].)
The second paragraph addresses when there may be a duty to take some remedial
action. Landowners may have a duty to take precautions to protect against the risk
of harm from an obviously unsafe condition, even if they do not have a duty to
warn. (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 121–122 [273
Cal.Rptr. 457].)
Sources and Authority
• “Foreseeability of harm is typically absent when a dangerous condition is open
and obvious. ‘Generally, if a danger is so obvious that a person could reasonably
be expected to see it, the condition itself serves as a warning, and the landowner
is under no further duty to remedy or warn of the condition.’ In that situation,
owners and possessors of land are entitled to assume others will ‘perceive the
obvious’ and take action to avoid the dangerous condition.” (Jacobs, supra, 14
Cal.App.5th at p. 447, internal citations omitted.)
• “[T]here may be situations ‘in which an obvious hazard, for which no warning is
necessary, nonetheless gives rise to a duty on a landowner’s part to remedy the
hazard because knowledge of the hazard is inadequate to prevent injury.’ This is
so when, for example, the practical necessity of encountering the danger, when
weighed against the apparent risk involved, is such that, under the circumstances,
a person might choose to encounter the danger.” (Johnson v. The Raytheon Co.,
Inc. (2019) 33 Cal.App.5th 617, 632 [245 Cal.Rptr.3d 282], internal citation
omitted.)
• “[I]t is foreseeable that even an obvious danger may cause injury, if the practical
necessity of encountering the danger, when weighed against the apparent risk
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involved, is such that under the circumstances, a person might choose to
encounter the danger. The foreseeability of injury, in turn, when considered
along with various other policy considerations such as the extent of the burden
to the defendant and consequences to the community of imposing a duty to
remedy such danger may lead to the legal conclusion that the defendant ‘owes a
duty of due care “to all persons who are foreseeably endangered by his conduct,
with respect to all risks which make the conduct unreasonably dangerous.” ’ ”
(Osborn, supra, 224 Cal.App.3d at p. 121, internal citation omitted.)
• “[W]hen a worker, whose work requires him or her to encounter a danger which
is obvious or observable, is injured, ‘[t]he jury [is] entitled to balance the
[plaintiff’s] necessity against the danger, even if it be assumed that it was an
apparent one. This [is] a factual issue. [Citations.]’ In other words, under certain
circumstances, an obvious or apparent risk of danger does not automatically
absolve a defendant of liability for injury caused thereby.” (Osborn, supra, 224
Cal.App.3d at p. 118, original italics, internal citations omitted.)
• “[T]he obvious nature of a danger is not, in and of itself, sufficient to establish
that the owner of the premises on which the danger is located is not liable for
injuries caused thereby, and that although obviousness of danger may negate any
duty to warn, it does not necessarily negate the duty to remedy.” (Osborn, supra,
224 Cal.App.3d at p. 119.)
• “The issue is whether there is any evidence from which a trier of fact could find
that, as a practical necessity, [plaintiff] was foreseeably required to expose
himself to the danger of falling into the empty pool.” (Jacobs, supra, 14
Cal.App.5th at p. 447.)
• In Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1039–1040 [43
Cal.Rptr.2d 158], the court found that an instruction stating that the defendant
“owed no duty to warn plaintiff of a danger which was obvious or which should
have been observed in the exercise of ordinary care” was proper: “The jury was
free to consider whether Falcon was directly negligent in failing to correct any
foreseeable, dangerous condition of the cables which may have contributed to
the cause of Felmlee’s injuries.” (Id. at p. 1040.)
• “[T]he ‘obvious danger’ exception to a landowner’s ordinary duty of care is in
reality a recharacterization of the former assumption of the risk doctrine, i.e.,
where the condition is so apparent that the plaintiff must have realized the
danger involved, he assumes the risk of injury even if the defendant was
negligent. . . . [T]his type of assumption of the risk has now been merged into
comparative negligence.” (Donohue v. San Francisco Housing Authority (1993)
16 Cal.App.4th 658, 665 [20 Cal.Rptr.2d 148], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1267–1269
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04[4]
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
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Owners, §§ 381.20, 381.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.25 et seq.
(Matthew Bender)
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1005. Business Proprietor’s or Property Owner’s Liability for the
Criminal Conduct of Others
[An owner of a business that is open to the public/A landlord] must use
reasonable care to protect [patrons/guests/tenants] from another person’s
criminal conduct on [his/her/nonbinary pronoun/its] property if the
[owner/landlord] can reasonably anticipate that conduct.
You must decide whether the steps taken by [name of defendant] to
protect persons such as [name of plaintiff] were adequate and reasonable
under the circumstances.
New September 2003; Revised May 2018
Directions for Use
A business owner or a landlord has a duty to take affirmative steps to protect against
the criminal acts of a third party if the conduct can be reasonably anticipated. (Ann
M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [25 Cal.Rptr.2d 137,
863 P.2d 207], disapproved on other grounds in Reid v. Google, Inc. (2010) 50
Cal.4th 512, 527, fn. 5 [113 Cal.Rptr.3d 327, 235 P.3d 988].) Whether there is a
duty as defined in the first paragraph is a question of law for the court. The jury
then decides whether the defendant’s remedial measures were reasonable and
adequate under the circumstances (second paragraph). (Isaacs v. Huntington
Memorial Hospital (1985) 38 Cal.3d 112, 131 [211 Cal.Rptr. 356, 695 P.2d 653].)
Sources and Authority
• “A landlord generally owes a tenant the duty, arising out of their special
relationship, to take reasonable measures to secure areas under the landlord’s
control against foreseeable criminal acts of third parties.” (Castaneda v. Olsher
(2007) 41 Cal.4th 1205, 1213 [63 Cal.Rptr.3d 99, 162 P.3d 610].)
• “[B]road language used in Isaacs has tended to confuse duty analysis generally
in that the opinion can be read to hold that foreseeability in the context of
determining duty is normally a question of fact reserved for the jury. Any such
reading of Isaacs is in error. Foreseeability, when analyzed to determine the
existence or scope of a duty, is a question of law to be decided by the court.”
(Ann M., supra, 6 Cal.4th at p. 678, internal citation omitted.)
• “[T]he decision to impose a duty of care to protect against criminal assaults
requires ‘balancing the foreseeability of the harm against the burden of the duty
to be imposed. [Citation.] “ ‘[I]n cases where the burden of preventing future
harm is great, a high degree of foreseeability may be required. [Citation.] On the
other hand, in cases where there are strong policy reasons for preventing the
harm, or the harm can be prevented by simple means, a lesser degree of
foreseeability may be required.’ [Citation.]” [Citation.] Or, as one appellate court
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has accurately explained, duty in such circumstances is determined by a
balancing of “foreseeability” of the criminal acts against the “burdensomeness,
vagueness, and efficacy” of the proposed security measures.’ ” (Wiener v.
Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146–1147 [12
Cal.Rptr.3d 615, 88 P.3d 517].)
• “ ‘A possessor of land who holds it open to the public for entry for his business
purposes is subject to liability to members of the public while they are upon the
land for such a purpose, for physical harm caused by the accidental, negligent,
or intentionally harmful acts of third persons or animals, and by the failure of
the possessor to exercise reasonable care to (a) discover that such acts are being
done or are likely to be done, or (b) give a warning adequate to enable the
visitors to avoid the harm, or otherwise to protect them against it.’ ” (Taylor v.
Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 124 [52 Cal.Rptr. 561, 416 P.2d
793], quoting Restatement of Torts, § 344.)
• “[T]he property holder only ‘has a duty to protect against types of crimes of
which he has notice and which are likely to recur if the common areas are not
secure.’ The court’s focus in determining duty ‘ “ ‘is not to decide whether a
particular plaintiff’s injury was reasonably foreseeable in light of a particular
defendant’s conduct, but rather to evaluate more generally whether the category
of negligent conduct at issue is sufficiently likely to result in the kind of harm
experienced that liability may appropriately be imposed on the negligent party.’
[Citation.]” ’ ” (Janice H. v. 696 North Robertson, LLC (2016) 1 Cal.App.5th
586, 594 [205 Cal.Rptr.3d 103], internal citation omitted.)
• “[O]nly when ‘heightened’ foreseeability of third party criminal activity on the
premises exists—shown by prior similar incidents or other indications of a
reasonably foreseeable risk of violent criminal assaults in that location—does the
scope of a business proprietor’s special-relationship-based duty include an
obligation to provide guards to protect the safety of patrons.” (Delgado v. Trax
Bar & Grill (2005) 36 Cal.4th 224, 240 [30 Cal.Rptr.3d 145, 113 P.3d 1159],
internal citations and footnote omitted, original italics.)
• “[F]oreseeability, whether heightened or reduced, is tested by what the defendant
knows, not what the defendant could have or should have learned.” (Margaret W.
v. Kelley R. (2006) 139 Cal.App.4th 141, 158 [42 Cal.Rptr.3d 519].)
• “Here [defendant] argues it has no duty unless and until it experiences a similar
criminal incident. We disagree. While a property holder generally has a duty to
protect against types of crimes of which he is on notice, the absence of previous
occurrences does not end the duty inquiry. We look to all of the factual
circumstances to assess foreseeability.” (Janice H., supra, 1 Cal.App.5th at p.
595, internal citation omitted.)
• “Knowing there is a general potential for rowdy or troublesome conduct by bar
patrons, however, does not make the category of aggressive parking lot assaults
reasonably foreseeable, any more so than the presumed awareness of previous
assaults and robberies or problems with transients on the property establishes the
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foreseeability of a violent sexual assault.” (Williams v. Fremont Corners, Inc.
(2019) 37 Cal.App.5th 654, 671–672 [250 Cal.Rptr.3d 46].)
• “Even when proprietors . . . have no duty . . . to provide a security guard or
undertake other similarly burdensome preventative measures, the proprietor is
not necessarily insulated from liability under the special relationship doctrine. A
proprietor that has no duty . . . to hire a security guard or to undertake other
similarly burdensome preventative measures still owes a duty of due care to a
patron or invitee by virtue of the special relationship, and there are
circumstances (apart from the failure to provide a security guard or undertake
other similarly burdensome preventative measures) that may give rise to liability
based upon the proprietor’s special relationship.” (Delgado, supra, 36 Cal.4th at
pp. 240–241.)
• A business proprietor is not an insurer of the safety of his invitees, “but he is
required to exercise reasonable care for their safety and is liable for injuries
resulting from a breach of this duty. The general duty includes not only the duty
to inspect the premises in order to uncover dangerous conditions, but, as well,
the duty to take affirmative action to control the wrongful acts of third persons
which threaten invitees where the occupant has reasonable cause to anticipate
such acts and the probability of injury resulting therefrom.” (Taylor, supra, 65
Cal.2d at p. 121, internal citations omitted.)
• “In the case of a landlord, this general duty of maintenance, which is owed to
tenants and patrons, has been held to include the duty to take reasonable steps to
secure common areas against foreseeable criminal acts of third parties that are
likely to occur in the absence of such precautionary measures.” (Ann M., supra,
6 Cal.4th at p. 674, internal citation omitted.) (Frances T. v. Village Green
Owners Assn. (1986) 42 Cal.3d 490, 499–501 [229 Cal.Rptr. 456, 723 P.2d
573].)
• “[Restatement Second of Torts] Section 314A identifies ‘special relations’ which
give rise to a duty to protect another. Section 344 of the Restatement Second of
Torts expands on that duty as it applies to business operators.” (Ky. Fried
Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 823 [59 Cal.Rptr.2d
756, 927 P.2d 1260].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1271–1291
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.06
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.05 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.21 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, §§ 334.12, 334.23, 334.57 (Matthew Bender)
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36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.30
et seq. (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:5 (Thomson Reuters)
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1006. Landlord’s Duty
A landlord must conduct reasonable periodic inspections of rental
property whenever the landlord has the legal right of possession. Before
giving possession of leased property to a tenant [or on renewal of a lease]
[or after retaking possession from a tenant], a landlord must conduct a
reasonable inspection of the property for unsafe conditions and must
take reasonable precautions to prevent injury due to the conditions that
were or reasonably should have been discovered in the process. The
inspection must include common areas under the landlord’s control.
After a tenant has taken possession, a landlord must take reasonable
precautions to prevent injury due to any unsafe condition in an area of
the premises under the landlord’s control if the landlord knows or
reasonably should have known about it.
[After a tenant has taken possession, a landlord must take reasonable
precautions to prevent injury due to any unsafe condition in an area of
the premises under the tenant’s control if the landlord has actual
knowledge of the condition and the right and ability to correct it.]
New September 2003; Revised April 2008, April 2009, December 2009, June 2010
Directions for Use
Give this instruction with CACI No. 1000, Premises Liability—Essential Factual
Elements, CACI No. 1001, Basic Duty of Care, and CACI No. 1003, Unsafe
Conditions, if the injury occurred on rental property and the landlord is alleged to
be liable. Include the last paragraph if the property is not within the landlord’s
immediate control.
Include “or on renewal of a lease” for commercial tenancies. (See Mora v. Baker
Commodities, Inc. (1989) 210 Cal.App.3d 771, 781 [258 Cal.Rptr. 669].) While no
case appears to have specifically addressed a landlord’s duty to inspect on renewal
of a residential lease, it would seem impossible to impose such a duty with regard
to a month-to-month tenancy. Whether there might be a duty to inspect on renewal
of a long-term residential lease appears to be unresolved.
Under the doctrine of nondelegable duty, a landlord cannot escape liability for
failure to maintain property in a safe condition by delegating the duty to an
independent contractor. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th
721, 726 [28 Cal.Rptr.2d 672].) For an instruction for use with regard to a
landlord’s liability for the acts of an independent contractor, see CACI No. 3713,
Nondelegable Duty.
Sources and Authority
• “A landlord owes a duty of care to a tenant to provide and maintain safe
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conditions on the leased premises. This duty of care also extends to the general
public. ‘A lessor who leases property for a purpose involving the admission of
the public is under a duty to see that it is safe for the purposes intended, and to
exercise reasonable care to inspect and repair the premises before possession is
transferred so as to prevent any unreasonable risk of harm to the public who
may enter. An agreement to renew a lease or relet the premises . . . cannot
relieve the lessor of his duty to see that the premises are reasonably safe at that
time.’ [¶] Where there is a duty to exercise reasonable care in the inspection of
premises for dangerous conditions, the lack of awareness of the dangerous
condition does not generally preclude liability. ‘Although liability might easily
be found where the landowner has actual knowledge of the dangerous condition
“[t]he landowner’s lack of knowledge of the dangerous condition is not a
defense. He has an affirmative duty to exercise ordinary care to keep the
premises in a reasonably safe condition, and therefore must inspect them or take
other proper means to ascertain their condition. And if, by the exercise of
reasonable care, he would have discovered the dangerous condition, he is
liable.” ’ ” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134 [32 Cal.Rptr.2d
755], internal citations omitted.)
• “Public policy precludes landlord liability for a dangerous condition on the
premises which came into existence after possession has passed to a tenant. This
is based on the principle that the landlord has surrendered possession and control
of the land to the tenant and has no right even to enter without permission. It
would not be reasonable to hold a lessor liable if the lessor did not have the
power, opportunity, and ability to eliminate the dangerous condition.” (Garcia v.
Holt (2015) 242 Cal.App.4th 600, 604 [195 Cal.Rptr.3d 47], internal citations
omitted.)
• “The rationale for this rule has been that property law regards a lease as
equivalent to a sale of the land for the term of the lease. As stated by Prosser:
‘In the absence of agreement to the contrary, the lessor surrenders both
possession and control of the land to the lessee, retaining only a reversionary
interest; and he has no right even to enter without the permission of the lessee.
Consequently, it is the general rule that he is under no obligation to anyone to
look after the premises or keep them in repair, and is not responsible, either to
persons injured on the land or to those outside of it, for conditions which
develop or are created by the tenant after possession has been transferred.
Neither is he responsible, in general, for the activities which the tenant carries
on upon the land after such transfer, even when they create a nuisance.’ ”
(Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510–511 [118 Cal.Rptr.
741], internal citations omitted.)
• “To this general rule of nonliability, the law has developed a number of
exceptions, such as where the landlord covenants or volunteers to repair a
defective condition on the premises, where the landlord has actual knowledge of
defects which are unknown and not apparent to the tenant and he fails to
disclose them to the tenant, where there is a nuisance existing on the property at
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the time the lease is made or renewed, when a safety law has been violated, or
where the injury occurs on a part of the premises over which the landlord retains
control, such as common hallways, stairs, elevators, or roof. [¶] A common
element in these exceptions is that either at or after the time possession is given
to the tenant the landlord retains or acquires a recognizable degree of control
over the dangerous condition with a concomitant right and power to obviate the
condition and prevent the injury. In these situations, the law imposes on the
landlord a duty to use ordinary care to eliminate the condition with resulting
liability for injuries caused by his failure so to act.” (Uccello, supra, 44
Cal.App.3d at p. 511, internal citations omitted.)
• “With regard to landlords, ‘reasonable care ordinarily involves making sure the
property is safe at the beginning of the tenancy, and repairing any hazards the
landlord learns about later.’ ‘ “Because a landlord has relinquished possessory
interest in the land, his or her duty of care to third parties injured on the land is
attenuated as compared with the tenant who enjoys possession and control. Thus,
before liability may be thrust on a landlord for a third party’s injury due to a
dangerous condition on the land, the plaintiff must show that the landlord had
actual knowledge of the dangerous condition in question, plus the right and
ability to cure the condition.” ’ ” (Day v. Lupo Vine Street, L.P. (2018) 22
Cal.App.5th 62, 69 [231 Cal.Rptr.3d 193], internal citations omitted.)
• “Limiting a landlord’s obligations releases it from needing to engage in
potentially intrusive oversight of the property, thus permitting the tenant to enjoy
its tenancy unmolested.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 [82
Cal.Rptr.3d 735], internal citations omitted.)
• “[A] commercial landowner cannot totally abrogate its landowner responsibilities
merely by signing a lease. As the owner of property, a lessor out of possession
must exercise due care and must act reasonably toward the tenant as well as to
unknown third persons. At the time the lease is executed and upon renewal a
landlord has a right to reenter the property, has control of the property, and must
inspect the premises to make the premises reasonably safe from dangerous
conditions. Even if the commercial landlord executes a contract which requires
the tenant to maintain the property in a certain condition, the landlord is
obligated at the time the lease is executed to take reasonable precautions to
avoid unnecessary danger.” (Mora, supra, 210 Cal.App.3d at p. 781, internal
citations omitted.)
• “[T]he landlord’s responsibility to inspect is limited. Like a residential landlord,
the duty to inspect charges the lessor ‘only with those matters which would have
been disclosed by a reasonable inspection.’ The burden of reducing or avoiding
the risk and the likelihood of injury will affect the determination of what
constitutes a reasonable inspection. The landlord’s obligation is only to do what
is reasonable under the circumstances. The landlord need not take extraordinary
measures or make unreasonable expenditures of time and money in trying to
discover hazards unless the circumstances so warrant. When there is a potential
serious danger, which is foreseeable, a landlord should anticipate the danger and
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conduct a reasonable inspection before passing possession to the tenant.
However, if no such inspection is warranted, the landlord has no such
obligation.” (Mora, supra, 210 Cal.App.3d at p. 782, internal citations and
footnote omitted.)
• “It is one thing for a landlord to leave a tenant alone who is complying with its
lease. It is entirely different, however, for a landlord to ignore a defaulting
tenant’s possible neglect of property. Neglected property endangers the public,
and a landlord’s detachment frustrates the public policy of keeping property in
good repair and safe. To strike the right balance between safety and disfavored
self-help, we hold that [the landlord]’s duty to inspect attached upon entry of the
judgment of possession in the unlawful detainer action and included reasonable
periodic inspections thereafter.” (Stone v. Center Trust Retail Properties, Inc.
(2008) 163 Cal.App.4th 608, 613 [77 Cal.Rptr.3d 556].)
• “[I]t is established that a landlord owes a duty of care to its tenants to take
reasonable steps to secure the common areas under its control.” (Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675 [25 Cal.Rptr.2d 137,
863 P.2d 207].)
• “The existence of the landlord’s duty to others to maintain the property in a
reasonably safe condition is a question of law for the court.” (Johnson v. Prasad
(2014) 224 Cal.App.4th 74, 79 [168 Cal.Rptr.3d 196].)
• “The reasonableness of a landlord’s conduct under all the circumstances is for
the jury. A triable issue of fact exists as to whether the defendants’ maintenance
of a low, open, unguarded window in a common hallway where they knew
young children were likely to play constituted a breach of their duty to take
reasonable precautions to prevent children falling out of the window.” (Amos v.
Alpha Prop. Mgmt. (1999) 73 Cal.App.4th 895, 904 [87 Cal.Rptr.2d 34], internal
citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1284, 1285
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.02
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.03 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, §§ 334.10, 334.53 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.11
et seq. (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 (Matthew
Bender)
California Civil Practice: Torts §§ 16:12–16:16 (Thomson Reuters)
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1007. Sidewalk Abutting Property
[An owner of/A lessee of/An occupier of/One who controls] property
must avoid creating an unsafe condition on the surrounding public
streets or sidewalks.
New September 2003
Sources and Authority
• Generally, absent statutory authority to the contrary, a landowner is under no
duty to maintain in a safe condition a public street or sidewalk abutting his
property (Sexton v. Brooks (1952) 39 Cal.2d 153, 157 [245 P.2d 496]). However,
“[a]n abutting owner has always had a duty to refrain from affirmative conduct
which would render the sidewalk dangerous to the public.” (Selger v. Steven
Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1592 [272 Cal.Rptr. 544], internal
citations omitted.)
• The occupier must maintain his or her land in a manner so as not to injure the
users of an abutting street or sidewalk. (Swanberg v. O’Mectin (1984) 157
Cal.App.3d 325, 330 [203 Cal.Rptr. 701]; Lompoc Unified School Dist. v.
Superior Court (1993) 20 Cal.App.4th 1688, 1693 [26 Cal.Rptr.2d 122].)
• “An ordinance requiring the abutting landowner to maintain the sidewalk would
be construed to create a duty of care to third persons only if the ordinance
clearly and unambiguously so provided.” (Selger, supra, 222 Cal.App.3d at p.
1590, internal citations omitted.)
• “Persons who maintain walkways—whether public or private—are not required
to maintain them in absolutely perfect condition. ‘The duty of care imposed on a
property owner, even one with actual notice, does not require the repair of minor
defects.’ The rule is no less applicable in a privately owned townhome
development. Moreover, what constitutes a minor defect may be a question of
law.” (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th
383, 388–389 [132 Cal.Rptr.3d 617], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1231–1234
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-B, Landlord
Liability For Injuries From Acts Of Others, ¶ 6:48 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.03[4]
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.03 (Matthew Bender)
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17 California Points and Authorities, Ch. 178, Premises Liability, § 178.29 (Matthew
Bender)
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1008. Liability for Adjacent Altered Sidewalk—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] was negligent in constructing and
maintaining an altered portion of the sidewalk next to [his/her/nonbinary
pronoun/its] property. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] [or a previous owner] altered [or
requested the city to alter] the portion of the sidewalk that caused
the harm;
2. That the alteration provided a benefit solely to [name of
defendant]’s property;
3. That the alteration served a purpose different from ordinary
sidewalk use;
4. That [name of defendant] failed to use reasonable care in creating
or maintaining the altered portion of the sidewalk;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Sources and Authority
• An abutting landowner who has altered an adjacent sidewalk for the benefit of
his property apart from the ordinary use for which it was designed has a duty to
employ ordinary care in making such alteration and in maintaining that portion
of the sidewalk in a reasonably safe condition. (Peters v. City & County of San
Francisco (1953) 41 Cal.2d 419, 423 [260 P.2d 55]; see Selger v. Steven
Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1594 [272 Cal.Rptr. 544].)
• The duty of care regarding altered sidewalks usually arises in cases “involving
traps on sidewalks, including ‘ “coal holes, meter boxes, and other devices of
similar character located in the sidewalk which benefit the abutting owner and
are located where the general public is likely to walk . . . .” ’ ” (Contreras v.
Anderson (1997) 59 Cal.App.4th 188, 202 [69 Cal.Rptr.2d 69], internal citation
omitted.)
• Liability depends on findings of (1) special benefit to the owner’s property, (2)
alteration of sidewalk for a nontypical purpose, and (3) the degree of exclusivity
of benefit. (Contreras, supra, 59 Cal.App.4th at p. 202.)
• “The significance of the degree of exclusivity is that proportionately, the greater
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the exclusivity of use, the more an improvement benefits solely the adjoining
property and the more reasonable it is to impose upon the landowner a duty to
maintain the improvement in a reasonably safe condition.” (Seaber v. Hotel Del
Coronado (1991) 1 Cal.App.4th 481, 491 [2 Cal.Rptr.2d 405].)
• The requirement of due care in altering a sidewalk applies only to that portion of
the sidewalk that is actually altered: “The rule cited by plaintiff requires the
owner to keep the altered portion in reasonably safe condition or be liable for
injuries resulting therefrom. Plaintiff did not trip on defendant’s floral displays,
she slipped on the dog dropping, a hazard which defendant did not create.”
(Selger, supra, 222 Cal.App.3d at p. 1595.)
• “The duty to maintain portions of a sidewalk which have been altered for the
benefit of the property runs with the land, and a property owner cannot avoid
liability on the ground that the condition was created by or at the request of his
predecessors in title.” (Peters, supra, 41 Cal.2d at p. 423.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1231–1234
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.03[4]
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.29 (Matthew
Bender)
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1009A. Liability to Employees of Independent Contractors for
Unsafe Concealed Conditions
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
an unsafe concealed condition while employed by [name of plaintiff’s
employer] and working on [name of defendant]’s property. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] knew, or reasonably should have known,
of a preexisting unsafe concealed condition on the property;
3. That [name of plaintiff’s employer] neither knew nor could be
reasonably expected to know of the unsafe concealed condition;
4. That the condition was not part of the work that [name of
plaintiff’s employer] was hired to perform;
5. That [name of defendant] failed to warn [name of plaintiff’s
employer] of the condition;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
An unsafe condition is concealed if either it is not visible or its
dangerous nature is not apparent to a reasonable person.
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2011
Directions for Use
This instruction is for use if a concealed dangerous condition on property causes
injury to an employee of an independent contractor hired to perform work on the
property. For an instruction for injuries to others due to a concealed condition, see
CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on the
owner’s retained control, see CACI No. 1009B, Liability to Employees of
Independent Contractors for Unsafe Conditions—Retained Control. For an
instruction for injuries based on the property owner’s providing defective equipment,
see CACI No. 1009D, Liability to Employees of Independent Contractors for Unsafe
Conditions—Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for instructions
on the liability of a hirer for the acts of an independent contractor.
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Sources and Authority
• “[T]he hirer as landowner may be independently liable to the contractor’s
employee, even if it does not retain control over the work, if: (1) it knows or
reasonably should know of a concealed, preexisting hazardous condition on its
premises; (2) the contractor does not know and could not reasonably ascertain
the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v.
Unocal Corp. (2005) 37 Cal.4th 659, 675 [36 Cal.Rptr.3d 495, 123 P.3d 931].)
• “[T]here is no reason to distinguish conceptually between premises liability
based on a hazardous substance that is concealed because it is invisible to the
contractor and known only to the landowner and premises liability based on a
hazardous substance that is visible but is known to be hazardous only to the
landowner. If the hazard is not reasonably apparent, and is known only to the
landowner, it is a concealed hazard, whether or not the substance creating the
hazard is visible.” (Kinsman, supra, 37 Cal.4th at p. 678.)
• “A landowner’s duty generally includes a duty to inspect for concealed hazards.
But the responsibility for job safety delegated to independent contractors may
and generally does include explicitly or implicitly a limited duty to inspect the
premises as well. Therefore, . . . the landowner would not be liable when the
contractor has failed to engage in inspections of the premises implicitly or
explicitly delegated to it. Thus, for example, an employee of a roofing contractor
sent to repair a defective roof would generally not be able to sue the hirer if
injured when he fell through the same roof due to a structural defect, inasmuch
as inspection for such defects could reasonably be implied to be within the scope
of the contractor’s employment. On the other hand, if the same employee fell
from a ladder because the wall on which the ladder was propped collapsed,
assuming that this defect was not related to the roof under repair, the employee
may be able to sustain a suit against the hirer. Put in other terms, the contractor
was not being paid to inspect the premises generally, and therefore the duty of
general inspection could not be said to have been delegated to it. Under those
circumstances, the landowner’s failure to reasonably inspect the premises, when
a hidden hazard leads directly to the employee’s injury, may well result in
liability.” (Kinsman, supra, 37 Cal.4th at pp. 677–678, internal citations omitted.)
• “The court also told the jury that [defendant] was liable if its negligent use or
maintenance of the property was a substantial factor in harming [plaintiff] (see
CACI Nos. 1000, 1001, 1003 & 1011). These instructions were erroneous
because they did not say that these principles would only apply to [defendant] if
the hazard was concealed.” (Alaniz v. Sun Pacific Shippers, L.P. (2020) 48
Cal.App.5th 332, 338–339 [261 Cal.Rptr.3d 702].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1259
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶¶ 6:4, 6:9.12 (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
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(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.12
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
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1009B. Liability to Employees of Independent Contractors for
Unsafe Conditions—Retained Control
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
an unsafe condition while employed by [name of plaintiff’s employer] and
working on [name of defendant]’s property. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] retained control over safety conditions at
the worksite;
3. That [name of defendant] negligently exercised [his/her/nonbinary
pronoun/its] retained control over safety conditions by [specify
alleged negligent acts or omissions];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s negligent exercise of [his/her/nonbinary
pronoun/its] retained control over safety conditions was a
substantial factor in causing [name of plaintiff]’s harm.
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2010, December 2011, May 2017
Directions for Use
This instruction is for use if a dangerous condition on property causes injury to an
employee of an independent contractor hired to perform work on the property. The
basis of liability is that the defendant retained control over the safety conditions at
the worksite. For an instruction for injuries to others due to a concealed condition,
see CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on
unsafe conditions not discoverable by the plaintiff’s employer, see CACI No.
1009A, Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions. For an instruction for injuries based on the property owner’s providing
defective equipment, see CACI No. 1009D, Liability to Employees of Independent
Contractors for Unsafe Conditions—Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for instructions
on the liability of a hirer for the acts of an independent contractor.
The hirer’s retained control must have “affirmatively contributed” to the plaintiff’s
injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 [115
Cal.Rptr.2d 853, 38 P.3d 1081].) However, the affirmative contribution need not be
active conduct but may be a failure to act. (Id. at p. 212, fn. 3.) “Affirmative
contribution” means that there must be causation between the hirer’s retained
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control and the plaintiff’s injury. But “affirmative contribution” might be construed
by a jury to require active conduct rather than a failure to act. Element 5, the
standard “substantial factor” element, expresses the “affirmative contribution.”
requirement. (See Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594–595 [207
Cal.Rptr.3d 712] [agreeing with committee’s position that “affirmatively contributed”
need not be specifically stated in instruction].)
Sources and Authority
• “We conclude that a hirer of an independent contractor is not liable to an
employee of the contractor merely because the hirer retained control over safety
conditions at a worksite, but that a hirer is liable to an employee of a contractor
insofar as a hirer’s exercise of retained control affırmatively contributed to the
employee’s injuries.” (Hooker, supra, 27 Cal.4th at p. 202, original italics.)
• “Imposing tort liability on a hirer of an independent contractor when the hirer’s
conduct has affirmatively contributed to the injuries of the contractor’s employee
is consistent with the rationale of our decisions in Privette, Toland and Camargo
because the liability of the hirer in such a case is not ‘ “in essence ‘vicarious’ or
‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired
contractor.” ’ To the contrary, the liability of the hirer in such a case is direct in
a much stronger sense of that term.” (Hooker, supra, 27 Cal.4th at pp. 211–212,
original italics, internal citations and footnote omitted.)
• “Such affirmative contribution need not always be in the form of actively
directing a contractor or contractor’s employee. There will be times when a hirer
will be liable for its omissions. For example, if the hirer promises to undertake a
particular safety measure, then the hirer’s negligent failure to do so should result
in liability if such negligence leads to an employee injury.” (Hooker, supra, 27
Cal.4th at p. 212, fn. 3.)
• “If a hirer entrusts work to an independent contractor, but retains control over
safety conditions at a jobsite and then negligently exercises that control in a
manner that affirmatively contributes to an employee’s injuries, the hirer is liable
for those injuries, based on its own negligent exercise of that retained control.”
(Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446 [136
Cal.Rptr.3d 521].)
• “A hirer’s failure to correct an unsafe condition, by itself, does not establish an
affirmative contribution.” (Khosh v. Staples Construction Co., Inc. (2016) 4
Cal.App.5th 712, 718 [208 Cal.Rptr.3d 699].)
• “Although drawn directly from case law, [plaintiff]’s proposed Special
Instructions Nos. 2 and 8 are somewhat misleading in that they suggest that in
order for the hirer to ‘affirmatively contribute’ to the plaintiff’s injuries, the hirer
must have engaged in some form of active direction or conduct. However,
‘affirmative contribution need not always be in the form of actively directing a
contractor or contractor’s employee. There will be times when a hirer will be
liable for its omissions.’ The Advisory Committee on Civil Jury Instructions
recognized the potential to confuse the jury by including ‘affirmative
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contribution’ language in CACI No. 1009B. The committee’s Directions for Use
states: ‘The hirer’s retained control must have “affirmatively contributed” to the
plaintiff’s injury. [Citation.] However, the affirmative contribution need not be
active conduct but may be in the form of an omission to act. [Citation.] The
advisory committee believes that the “affirmative contribution” requirement
simply means that there must be causation between the hirer’s conduct and the
plaintiff’s injury. Because “affirmative contribution” might be construed by a jury
to require active conduct rather than a failure to act, the committee believes that
its standard “substantial factor” element adequately expresses the “affirmative
contribution” requirement.’ (Directions for Use for CACI No. 1009B.) [¶] We
agree with the Advisory Committee on Civil Jury Instructions that CACI No.
1009B adequately covers the ‘affirmative contribution’ requirement set forth in
Hooker.” (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594–595 [207
Cal.Rptr.3d 712].)
• “When the employer directs that work be done by use of a particular mode or
otherwise interferes with the means and methods of accomplishing the work, an
affirmative contribution occurs. When the hirer does not fully delegate the task
of providing a safe working environment but in some manner actively
participates in how the job is done, the hirer may be held liable to the employee
if its participation affirmatively contributed to the employee’s injury. [¶] By
contrast, passively permitting an unsafe condition to occur rather than directing it
to occur does not constitute affirmative contribution. The failure to institute
specific safety measures is not actionable unless there is some evidence that the
hirer or the contractor had agreed to implement these measures. Thus, the failure
to exercise retained control does not constitute an affirmative contribution to an
injury. Such affirmative contribution must be based on a negligent exercise of
control. In order for a worker to recover on a retained control theory, the hirer
must engage in some active participation.” (Tverberg, supra, 202 Cal.App.4th at
p. 1446, internal citations omitted.)
• “Although plaintiffs concede that [contractor] had exclusive control over how the
window washing would be done, they urge that [owner] nonetheless is liable
because it affirmatively contributed to decedent’s injuries ‘not [by] active
conduct but . . . in the form of an omission to act.’ Although it is undeniable
that [owner]’s failure to equip its building with roof anchors contributed to
decedent’s death, McKown [v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219] does
not support plaintiffs’ suggestion that a passive omission of this type is
actionable. . . . Subsequent Supreme Court decisions . . . have repeatedly
rejected the suggestion that the passive provision of an unsafe workplace is
actionable. . . . Accordingly, the failure to provide safety equipment does not
constitute an ‘affirmative contribution’ to an injury within the meaning of
McKown.” (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078,
1093 [229 Cal.Rptr.3d 594], original italics.)
• “[U]nder Government Code section 815.4, a public entity can be held liable
under the retained control doctrine, provided a private person would be liable
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under the same circumstances. This means that the public entity must negligently
exercise its retained control so as to affirmatively contribute to the injuries of the
employee of the independent contractor.” (McCarty v. Department of
Transportation (2008) 164 Cal.App.4th 955, 985 [79 Cal.Rptr.3d 777], original
italics.)
• “The Privette line of decisions establishes a presumption that an independent
contractor’s hirer ‘delegates to that contractor its tort law duty to provide a safe
workplace for the contractor’s employees.’ . . . [T]he Privette presumption
affects the burden of producing evidence.” (Alvarez v. Seaside Transportation
Services LLC (2017) 13 Cal.App.5th 635, 642 [221 Cal.Rptr.3d 119], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1259
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.12
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
1009C. Reserved for Future Use
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1009D. Liability to Employees of Independent Contractors for
Unsafe Conditions—Defective Equipment
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
an unsafe condition while employed by [name of plaintiff’s employer] and
working on [name of defendant]’s property. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] negligently provided unsafe equipment
that contributed to [name of plaintiff]’s injuries;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Derived from CACI No. 1009B April 2009; Revised December 2011
Directions for Use
This instruction is for use if a dangerous condition on property causes injury to an
employee of an independent contractor hired to perform work on the property. The
basis of liability is that the defendant provided defective equipment. For an
instruction for injuries to others due to a concealed condition, see CACI No. 1003,
Unsafe Conditions. For an instruction for injuries based on unsafe concealed
conditions not discoverable by the plaintiff’s employer, see CACI No. 1009A,
Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions. For an instruction for injuries based on the property owner’s retained
control over the property, see CACI No. 1009B, Liability to Employees of
Independent Contractors for Unsafe Conditions—Retained Control.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for instructions
on the liability of a hirer for the acts of an independent contractor.
Sources and Authority
• “[W]hen a hirer of an independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the injury of an
employee of the contractor, the hirer should be liable to the employee for the
consequences of the hirer’s own negligence.” (Elsner v. Uveges (2004) 34
Cal.4th 915, 937 [22 Cal.Rptr.3d 530, 102 P.3d 915].)
• “ ‘[W]here the hiring party actively contributes to the injury by supplying
defective equipment, it is the hiring party’s own negligence that renders it liable,
not that of the contractor.’ ” (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th
219, 225 [115 Cal.Rptr.2d 868, 38 P.3d 1094], internal citation omitted.)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1259
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.24 (Matthew
Bender)
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1010. Affirmative Defense—Recreation Immunity—Exceptions
(Civ. Code, § 846)
[Name of defendant] is not responsible for [name of plaintiff]’s harm if
[name of defendant] proves that [name of plaintiff]’s harm resulted from
[his/her/nonbinary pronoun/name of person causing injury’s] entry on or
use of [name of defendant]’s property for a recreational purpose.
However, [name of defendant] may be still responsible for [name of
plaintiff]’s harm if [name of plaintiff] proves that
[Choose one or more of the following three options:]
[[name of defendant] willfully or maliciously failed to protect others from
or warn others about a dangerous [condition/use/structure/activity] on
the property.]
[or]
[a charge or fee was paid to [name of defendant/the owner] for permission
to enter the property for a recreational purpose.]
[or]
[[name of defendant] expressly invited [name of plaintiff] to enter the
property.]
If you find that [name of plaintiff] has proven one or more of these three
exceptions to immunity, then you must still decide whether [name of
defendant] is liable in light of the other instructions that I will give you.
New September 2003; Revised October 2008, December 2014, May 2017, November
2017, May 2021
Directions for Use
This instruction sets forth the statutory exceptions to recreational immunity. (See
Civ. Code, § 846.) In the opening paragraph, if the plaintiff was not the recreational
user of the property, insert the name of the person whose conduct on the property is
alleged to have caused plaintiff’s injury. Immunity extends to injuries to persons
who are neither on the property nor engaged in a recreational purpose if the injury
was caused by a recreational user of the property. (See Wang v. Nibbelink (2016) 4
Cal.App.5th 1, 17 [208 Cal.Rptr.3d 461].)
Choose one or more of the optional exceptions according to the facts. Depending on
the facts, the court could instruct that the activity involved was a “recreational
purpose” as a matter of law. For a comprehensive list of “recreational purposes,”
refer to Civil Code section 846.
Whether the term “willful or malicious failure” has a unique meaning under this
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statute is not entirely clear. One court construing this statute has said that three
elements must be present to raise a negligent act to the level of willful misconduct:
(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or
constructive knowledge that injury is a probable, as opposed to a possible, result of
the danger, and (3) conscious failure to act to avoid the peril. (See New v.
Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689–690 [217
Cal.Rptr. 522].)
For the second exception involving payment of a fee, insert the name of the
defendant if the defendant is the landowner. If the defendant is someone who is
alleged to have created a dangerous condition on the property other than the
landowner, select “the owner.” (See Pacific Gas & Electric Co. v. Superior Court
(2017) 10 Cal.App.5th 563, 566 [216 Cal.Rptr.3d 426].)
Federal courts interpreting California law have addressed whether the “express
invitation” must be personal to the user. The Ninth Circuit has held that invitations
to the general public do not qualify as “express invitations” within the meaning of
section 846. In Ravell v. United States (9th Cir. 1994) 22 F.3d 960, 963, the Ninth
Circuit held that California law requires a personal invitation for a section 846
invitation, citing Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 317 [26
Cal.Rptr.2d 148]. However, the issue has not been definitively resolved by the
California Supreme Court.
Sources and Authority
• Recreational Immunity. Civil Code section 846.
• “[A]n owner of . . . real property owes no duty of care to keep the premises
safe for entry or use by others for recreational purposes or to give recreational
users warning of hazards on the property, unless: (1) the landowner willfully or
maliciously fails to guard or warn against a dangerous condition, use, structure
or activity; (2) permission to enter for a recreational purpose is granted for a
consideration; or (3) the landowner expressly invites rather than merely permits
the user to come upon the premises.” (Ornelas v. Randolph (1993) 4 Cal.4th
1095, 1099–1100 [17 Cal.Rptr.2d 594, 847 P.2d 560].)
• “Generally, whether one has entered property for a recreational purpose within
the meaning of the statute is a question of fact, to be determined through a
consideration of the ‘totality of the facts and circumstances, including . . . the
prior use of the land. While the plaintiff’s subjective intent will not be
controlling, it is relevant to show purpose.’ ” (Ornelas, supra, 4 Cal.4th at p.
1102, internal citation omitted.)
• “The phrase ‘interest in real property’ should not be given a narrow or technical
interpretation that would frustrate the Legislature’s intention in passing and
amending section 846.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 196 [266
Cal.Rptr. 491, 785 P.2d 1183].)
• “[D]efendants’ status as business invitees of the landowner does not satisfy the
prerequisite that the party seeking to invoke the immunity provisions of section
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846 be ‘[a]n owner of any estate or any other interest in real property, whether
possessory or nonpossessory.’ Although such invitee may be entitled to be
present on the property during such time as the work is being performed, such
presence does not convey any estate or interest in the property.” (Jenson v.
Kenneth I. Mullen, Consulting Engineers, Inc. (1989) 211 Cal.App.3d 653, 658
[259 Cal.Rptr. 552].)
• “Subpart (c) of the third paragraph of section 846 is not limited to injuries to
persons on the premises and therefore on its face encompasses persons off-
premises such as [plaintiff] and her husband. It is not limited to injuries to
recreational participants. Had the Legislature wanted to narrow the third
paragraph’s immunity to injured recreational users, it could have done so, as it
did in the first paragraph.” (Wang, supra, 4 Cal.App.5th at p. 17.)
• “The concept of willful misconduct has a well-established, well-defined meaning
in California law. ‘Willful or wanton misconduct is intentional wrongful conduct,
done either with a knowledge that serious injury to another will probably result,
or with a wanton and reckless disregard of the possible results.’ ” (New, supra,
171 Cal.App.3d at p. 689, internal citations omitted.)
• “Clearly, consideration means some type of entrance fee or charge for permitting
a person to use specially constructed facilities. There are many amusement
facilities in government-owned parks that charge admission fees and a
consideration in this or a similar context was intended.” (Moore v. City of
Torrance (1979) 101 Cal.App.3d 66, 72 [166 Cal.Rptr. 192], disapproved of on
other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33
Cal.3d 699, 707 [190 Cal.Rptr. 494, 660 P.2d 1168].)
• “We conclude that the consideration exception to recreational use immunity does
apply to [defendant] even though [plaintiff]’s fee for recreational access to the
campground was not paid to it . . . . We hold that the payment of consideration
in exchange for permission to enter a premises for a recreational purpose
abrogates the section 846 immunity of any nonpossessory interest holder who is
potentially responsible for the plaintiff’s injuries, including a licensee or
easement holder who possesses only a limited right to enter and use a premises
on specified terms but no right to control third party access to the premises. The
contrary interpretation urged by [defendant], making immunity contingent not on
payment of consideration but its receipt, is supported neither by the statutory text
nor the Legislature’s purpose in enacting section 846, which was to encourage
free public access to property for recreational use. It also would lead to
troubling, anomalous results we do not think the Legislature intended. At bottom,
construing this exception as applying only to defendants who receive or benefit
from the consideration paid loses sight of the fact that recreational immunity is
merely a tool. It is the Legislature’s chosen means, not an end unto itself.”
(Pacific Gas & Electric Co., supra, 10 Cal.App.5th at p. 566.)
• “A landowner must gain some immediate and reasonably direct advantage,
usually in the form of an entrance fee, before the exception to immunity for
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consideration under section 846 comes into play.” (Johnson, supra, 21
Cal.App.4th at p. 317.)
• “The purpose of section 846 is to encourage landowners to permit people to use
their property for recreational use without fear of reprisal in the form of
lawsuits. The trial court should therefore construe the exceptions for
consideration and express invitees narrowly. (Johnson, supra, 21 Cal.App.4th at
p. 315.)
• “The language of section 846, item (c), which refers to ‘any persons who are
expressly invited rather than merely permitted to come upon the premises by the
landowner’ (italics added) does not say a person must be invited for a
recreational purpose. The exception instead defines a person who is ‘expressly
invited’ by distinguishing this person from one who is ‘merely permitted’ to
come onto the land.” (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 114 [96
Cal.Rptr.2d 394], original italics.)
• “Civil Code section 846’s liability shield does not extend to acts of vehicular
negligence by a landowner or by the landowner’s employee while acting within
the course of the employment. We base this conclusion on section 846’s plain
language. The statutory phrase ‘keep the premises safe’ is an apt description of
the property-based duties underlying premises liability, a liability category that
does not include vehicular negligence. Furthermore, a broad construction of that
statutory phrase would render superfluous another provision of section 846
shielding landowners from liability for failure to warn recreational users about
hazardous conditions or activities on the land.” (Klein v. United States of
America (2010) 50 Cal.4th 68, 72 [112 Cal.Rptr.3d 722, 235 P.3d 42].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1245–1253
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.22
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.30 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.21
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.130 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:34 (Thomson Reuters)
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1011. Constructive Notice Regarding Dangerous Conditions on
Property
In determining whether [name of defendant] should have known of the
condition that created the risk of harm, you must decide whether, under
all the circumstances, the condition was of such a nature and existed
long enough that [name of defendant] had sufficient time to discover it
and, using reasonable care:
1. Repair the condition; or
2. Protect against harm from the condition; or
3. Adequately warn of the condition.
[[Name of defendant] must make reasonable inspections of the property to
discover unsafe conditions. If an inspection was not made within a
reasonable time before the accident, this may show that the condition
existed long enough so that [a store/[a/an] [insert other commercial
enterprise]] owner using reasonable care would have discovered it.]
New September 2003; Revised February 2007, October 2008
Directions for Use
This instruction is intended for use if there is an issue concerning the owner’s
constructive knowledge of a dangerous condition. It should be given with CACI No.
1003, Unsafe Conditions.
The bracketed second paragraph of this instruction is based on Ortega v. Kmart
(2001) 26 Cal.4th 1200 [114 Cal.Rptr.2d 470, 36 P.3d 11]. Ortega involved a store.
The court should determine whether the bracketed portion of this instruction applies
to other types of property.
Sources and Authority
• “It is well established in California that although a store owner is not an insurer
of the safety of its patrons, the owner does owe them a duty to exercise
reasonable care in keeping the premises reasonably safe.” (Ortega, supra, 26
Cal.4th at p. 1205, internal citation omitted.)
• “We conclude that a plaintiff may prove a dangerous condition existed for an
unreasonable time with circumstantial evidence, and that . . . ‘evidence that an
inspection had not been made within a particular period of time prior to an
accident may warrant an inference that the defective condition existed long
enough so that a person exercising reasonable care would have discovered it.’ ”
(Ortega, supra, 26 Cal.4th at p. 1210, internal citation omitted.)
• “A store owner exercises ordinary care by making reasonable inspections of the
portions of the premises open to customers, and the care required is
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commensurate with the risks involved.” (Ortega, supra, 26 Cal.4th at p. 1205,
internal citation omitted.)
• “Because the owner is not the insurer of the visitor’s personal safety, the owner’s
actual or constructive knowledge of the dangerous condition is a key to
establishing its liability.” (Ortega, supra, 26 Cal.4th at p. 1206, internal citations
omitted.)
• “Courts have also held that where the plaintiff relies on the failure to correct a
dangerous condition to prove the owner’s negligence, the plaintiff has the burden
of showing that the owner had notice of the defect in sufficient time to correct
it.” (Ortega, supra, 26 Cal.4th at p. 1206, internal citations omitted.)
• “The plaintiff need not show actual knowledge where evidence suggests that the
dangerous condition was present for a sufficient period of time to charge the
owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th
at p. 1206, internal citations omitted.)
• “We emphasize that allowing the inference does not change the rule that if a
store owner has taken care in the discharge of its duty, by inspecting its premises
in a reasonable manner, then no breach will be found even if a plaintiff does
suffer injury.” (Ortega, supra, 26 Cal.4th at p. 1211, internal citations omitted.)
• “We conclude that plaintiffs still have the burden of producing evidence that the
dangerous condition existed for at least a sufficient time to support a finding that
the defendant had constructive notice of the hazardous condition. We also
conclude, however, that plaintiffs may demonstrate the storekeeper had
constructive notice of the dangerous condition if they can show that the site had
not been inspected within a reasonable period of time so that a person exercising
due care would have discovered and corrected the hazard. In other words, if the
plaintiffs can show an inspection was not made within a particular period of time
prior to an accident, they may raise an inference the condition did exist long
enough for the owner to have discovered it. It remains a question of fact for the
jury whether, under all the circumstances, the defective condition existed long
enough so that it would have been discovered and remedied by an owner in the
exercise of reasonable care.” (Ortega, supra, at pp. 1212–1213, internal citations
omitted.)
• “To comply with this duty, a person who controls property must ‘ “ ‘ “inspect
[the premises] or take other proper means to ascertain their condition” ’ ” ’ and,
if a dangerous condition exists that would have been discovered by the exercise
of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats
v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 833 [236 Cal.Rptr.3d
236].)
• “Generally speaking, a property owner must have actual or constructive
knowledge of a dangerous condition before liability will be imposed. In the
ordinary slip and fall case, . . . the cause of the dangerous condition is not
necessarily linked to an employee. Consequently, there is no issue of respondeat
superior. Where, however, ‘the evidence is such that a reasonable inference can
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be drawn that the condition was created by employees of the [defendant], then
[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.
Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641], internal
citation omitted.)
• “Although no two accidents happen in the same way, to be admissible for
showing notice to a landowner of a dangerous condition, evidence of another
similar accident must have occurred under substantially the same circumstances.”
(Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal.App.4th 403, 432 [136
Cal.Rptr.3d 739].)
Secondary Sources
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-B, Landlord
Liability For Injuries From Acts Of Others, ¶ 6:48 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq.
(Matthew Bender)
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1012. Knowledge of Employee Imputed to Owner
If you find that the condition causing the risk of harm was created by
[name of defendant] or [his/her/nonbinary pronoun/its] employee acting
within the scope of [his/her/nonbinary pronoun] employment, then you
must conclude that [name of defendant] knew of this condition.
New October 2004
Sources and Authority
• “Where the dangerous or defective condition of the property which causes the
injury has been created by reason of the negligence of the owner of the property
or his employee acting within the scope of the employment, the owner of the
property cannot be permitted to assert that he had no notice or knowledge of the
defective or dangerous condition in an action by an invitee for injuries suffered
by reason of the dangerous condition. Under such circumstances knowledge
thereof is imputed to him.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806
[117 P.2d 841], internal citation omitted.)
• “When an unsafe condition which causes injury to an invitee has been created
by the owner of the property himself or by an employee within the scope of his
employment, the invitee need not prove the owner’s notice or knowledge of the
dangerous condition; the knowledge is imputed to the owner.” (Sanders v.
MacFarlane’s Candies (1953) 119 Cal.App.2d 497, 501 [259 P.2d 1010], internal
citation omitted.)
• “Where the evidence shows, as it does in this case, that the condition which
caused the injury was created by the employees of the respondent, or the
evidence is such that a reasonable inference can be drawn that the condition was
created by employees of the respondent, then respondent is charged with notice
of the dangerous condition.” (Oldham v. Atchison, T. & S.F. Ry. Co. (1948) 85
Cal.App.2d 214, 218–219 [192 P.2d 516].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1262
1 Levy et al., California Torts, Ch. 15, General Premises Liability, §§ 15.04[5],
15.08 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20[1] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.11 et seq. (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.24 (Matthew
Bender)
1013–1099. Reserved for Future Use
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VF-1000. Premises Liability—Comparative Negligence of Others
Not at Issue
We answer the questions submitted to us as follows:
1. Did [name of defendant] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] negligent in the use or maintenance of
the property?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
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[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1001. Premises Liability—Affirmative Defense—Recreation
Immunity—Exceptions
We answer the questions submitted to us as follows:
1. Did [name of defendant] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] negligent in the [use/maintenance] of the
property?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff/name of person causing injury] enter on or
use [name of defendant]’s property for a recreational purpose?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, skip question 5 and answer question 6.
5. Did [name of defendant] willfully or maliciously fail to protect
others from or warn others about a dangerous [condition/use/
structure/activity] on the property?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future eco- $ ]
nomic loss
Total Future Economic Damages: $
]
[c. Past noneconomic loss, including [physical pain/mental
suffering:]
$ ]
[d. Future noneconomic loss, including [physical pain/mental
suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2014, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential Factual
Elements, and CACI No. 1010, Affırmative Defense—Recreation
Immunity—Exceptions.
The special verdict forms in this section are intended only as models. They may
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need to be modified depending on the facts of the case.
If either of the other two exceptions to recreational immunity from Civil Code
section 846 is at issue, question 5 should be replaced with appropriate language for
the applicable exception. (See CACI No. 1010.)
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1002. Premises Liability—Comparative Fault of Plaintiff at
Issue
We answer the questions submitted to us as follows:
1. Did [name of defendant] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] negligent in the use or maintenance of
the property?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
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[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
[d. If [name of plaintiff] has proved any damages, then answer
question 5. If [name of plaintiff] has not proved any damages,
then stop here, answer no further questions, and have the
presiding juror sign and date this form.
5. Was [name of plaintiff] also negligent?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff]’s negligence a substantial factor in causing
[his/her/nonbinary pronoun] harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What percentage of responsibility for [name of plaintiff]’s harm do
you assign to the following?
[Name of defendant]: %
[Name of plaintiff]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New February 2005; Revised April 2007, December 2009, December 2010,
December 2016
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VF-1002 PREMISES LIABILITY
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential Factual
Elements, CACI No. 405, Comparative Fault of Plaintiff, and CACI No. 406,
Apportionment of Responsibility.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1003–VF-1099. Reserved for Future Use
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DANGEROUS CONDITION OF PUBLIC PROPERTY
1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov.
Code, § 835)
1101. Control
1102. Definition of “Dangerous Condition” (Gov. Code, § 830(a))
1103. Notice (Gov. Code, § 835.2)
1104. Inspection System (Gov. Code, § 835.2(b)(1) & (2))
1105–1109. Reserved for Future Use
1110. Affirmative Defense—Natural Conditions (Gov. Code, § 831.2)
1111. Affirmative Defense—Condition Created by Reasonable Act or Omission
(Gov. Code, § 835.4(a))
1112. Affirmative Defense—Reasonable Act or Omission to Correct (Gov. Code,
§ 835.4(b))
1113–1119. Reserved for Future Use
1120. Failure to Provide Traffic Control Signals (Gov. Code, § 830.4)
1121. Failure to Provide Traffic Warning Signals, Signs, or Markings (Gov. Code,
§ 830.8)
1122. Affirmative Defense—Weather Conditions Affecting Streets and Highways
(Gov. Code, § 831)
1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6)
1124. Loss of Design Immunity (Cornette)
1125. Conditions on Adjacent Property
1126–1199. Reserved for Future Use
VF-1100. Dangerous Condition of Public Property
VF-1101. Dangerous Condition of Public Property—Affirmative
Defense—Reasonable Act or Omission (Gov. Code, § 835.4)
VF-1102–VF-1199. Reserved for Future Use
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1100. Dangerous Condition on Public Property—Essential Factual
Elements (Gov. Code, § 835)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
a dangerous condition of [name of defendant]’s property. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] owned [or controlled] the property;
2. That the property was in a dangerous condition at the time of the
injury;
3. That the dangerous condition created a reasonably foreseeable
risk of the kind of injury that occurred;
4. [That negligent or wrongful conduct of [name of defendant]’s
employee acting within the scope of employment created the
dangerous condition;]
4. [or]
4. [That [name of defendant] had notice of the dangerous condition
for a long enough time to have protected against it;]
5. That [name of plaintiff] was harmed; and
6. That the dangerous condition was a substantial factor in causing
[name of plaintiff]’s harm.
New September 2003; Revised October 2008, December 2015, June 2016, May 2020
Directions for Use
For element 4, choose either or both options depending on whether liability is
alleged under Government Code section 835(a), 835(b), or both.
See also CACI No. 1102, Definition of “Dangerous Condition,” and CACI No.
1103, Notice.
Sources and Authority
• Liability of Public Entity for Dangerous Condition of Property. Government
Code section 835.
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• Definitions. Government Code section 830.
• “The Government Claims Act (§ 810 et seq.; the Act) ‘is a comprehensive
statutory scheme that sets forth the liabilities and immunities of public entities
and public employees for torts.’ Section 835 . . . prescribes the conditions under
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which a public entity may be held liable for injuries caused by a dangerous
condition of public property. Section 835 provides that a public entity may be
held liable for such injuries ‘if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury, that the injury was proximately
caused by the dangerous condition, [and] that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred.’ In
addition, the plaintiff must establish that either: (a) ‘[a] negligent or wrongful act
or omission of an employee of the public entity within the scope of his
employment created the dangerous condition,’ or (b) ‘[t]he public entity had . . .
notice of the dangerous condition . . . a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition.’ ” (Cordova v.
City of Los Angeles (2015) 61 Cal.4th 1099, 1105–1106 [190 Cal.Rptr.3d 850,
353 P.3d 773], internal citations omitted.)
• “[A] public entity may be liable for a dangerous condition of public property
even when the immediate cause of a plaintiff’s injury is a third party’s negligent
or illegal act (such as a motorist’s negligent driving), if some physical
characteristic of the property exposes its users to increased danger from third
party negligence or criminality. Public entity liability lies under section 835
when some feature of the property increased or intensified the danger to users
from third party conduct.” (Castro v. City of Thousand Oaks (2015) 239
Cal.App.4th 1451, 1457−1458 [192 Cal.Rptr.3d 376], internal citation omitted.)
• “Subdivisions (a) and (b) of section 835 obviously address two different types of
cases. However, what distinguishes the two types of cases is not simply whether
the public entity has notice of the dangerous condition. Instead, what
distinguishes the two cases in practice is who created the dangerous condition.
Because an entity must act through its employees, virtually all suits brought on
account of dangerous conditions created by the entity will be brought under
subdivision (a). In contrast, subdivision (b) can also support suits based on
dangerous conditions not created by the entity or its employees.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 836 [15 Cal.Rptr.2d 679, 843
P.2d 624].)
• “[T]he res ipsa loquitur presumption does not satisfy the requirements for
holding a public entity liable under section 835, subdivision (a). Res ipsa
loquitur requires the plaintiff to show only (1) that the accident was of a kind
which ordinarily does not occur in the absence of negligence, (2) that the
instrumentality of harm was within the defendant’s exclusive control, and (3)
that the plaintiff did not voluntarily contribute to his or her own injuries.
Subdivision (a), in contrast, requires the plaintiff to show that an employee of
the public entity ‘created’ the dangerous condition; in view of the legislative
history . . . the term ‘created’ must be defined as the sort of involvement by an
employee that would justify a presumption of notice on the entity’s part.”
(Brown, supra, 4 Cal.4th at p. 836.)
• “Focusing on the language in Pritchard, supra, 178 Cal.App.2d at page 256,
stating that where the public entity ‘has itself created the dangerous condition it
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is per se culpable,’ plaintiff argues that the negligence that section 835,
subdivision (a), refers to is not common law negligence, but something that
exists whenever the public entity creates the dangerous condition of property. We
disagree. If the Legislature had wanted to impose liability whenever a public
entity created a dangerous condition, it would merely have required plaintiff to
establish that an act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition. Instead, section 835,
subdivision (a), requires the plaintiff to establish that a ‘negligent or wrongful
act or omission of an employee of the public entity within the scope of his
employment created the dangerous condition.’ (Italics added.) Plaintiff’s
interpretation would transform the highly meaningful words ‘negligent or
wrongful’ into meaningless surplusage, contrary to the rule of statutory
interpretation that courts should avoid a construction that makes any word
surplusage.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1135 [72
Cal.Rptr.3d 382, 176 P.3d 654], original italics, internal citation omitted.)
• “In order to recover under Government Code section 835, it is not necessary for
plaintiff to prove a negligent act and notice; either negligence or notice will
suffice.” (Curtis v. State of California (1982) 128 Cal.App.3d 668, 693 [180
Cal.Rptr. 843], original italics.)
• “A public entity may not be held liable under section 835 for a dangerous
condition of property that it does not own or control.” (Goddard v. Department
of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359 [196 Cal.Rptr.3d 625].)
• “For liability to be imposed on a public entity for a dangerous condition of
property, the entity must be in a position to protect against or warn of the
hazard. Therefore, the crucial element is not ownership, but rather control.”
(Mamola v. State of California ex rel. Dept. of Transportation (1979) 94
Cal.App.3d 781, 788 [156 Cal.Rptr. 614], internal citation omitted.)
• “Liability for injury caused by a dangerous condition of property has been
imposed when an unreasonable risk of harm is created by a combination of
defect in the property and acts of third parties. However, courts have consistently
refused to characterize harmful third party conduct as a dangerous
condition—absent some concurrent contributing defect in the property itself.”
(Hayes v. State of California (1974) 11 Cal.3d 469, 472 [113 Cal.Rptr. 599, 521
P.2d 855], internal citations omitted.)
• “[P]laintiffs in this case must show that a dangerous condition of property—that
is, a condition that creates a substantial risk of injury to the public—proximately
caused the fatal injuries their decedents suffered as a result of the collision with
[third party]’s car. But nothing in the statute requires plaintiffs to show that the
allegedly dangerous condition also caused the third party conduct that
precipitated the accident.” (Cordova, supra, 61 Cal.4th at p. 1106.)
• “The existence of a dangerous condition is ordinarily a question of fact but ‘can
be decided as a matter of law if reasonable minds can come to only one
conclusion.’ ” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347 [75
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Cal.Rptr.3d 168].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 301–341
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-C, Immunity
From Liability, ¶ 6:91 et seq. (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2785 et seq. (The Rutter Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.9–12.55
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
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1101. Control
[Name of plaintiff] claims that [name of defendant] controlled the property
at the time of the incident. In deciding whether [name of defendant]
controlled the property, you should consider whether it had the power to
prevent, fix, or guard against the dangerous condition. You should also
consider whether [name of defendant] treated the property as if it were its
property.
New September 2003
Directions for Use
This instruction will not be necessary in most cases. Ownership of public property is
generally established as a matter of law by evidence of holding title or other similar
evidence.
The power to regulate privately owned facilities is not enough, in and of itself, to
impose liability on a public entity (i.e., it is not “control”). (Aaitui v. Grande
Properties (1994) 29 Cal.App.4th 1369, 1377–1378 [35 Cal.Rptr.2d 123].)
Sources and Authority
• “Public Property” Defined. Government Code section 830(c).
• “ ‘[C]ontrol exists if the public entity has the “power to prevent, remedy or
guard against the dangerous condition.” ’ ” (Goddard v. Department of Fish &
Wildlife (2015) 243 Cal.App.4th 350, 364 [196 Cal.Rptr.3d 625].)
• “Where the public entity’s relationship to the dangerous property is not clear, aid
may be sought by inquiring whether the particular defendant had control, in the
sense of power to prevent, remedy or guard against the dangerous condition;
whether his ownership is a naked title or whether it is coupled with control; and
whether a private defendant, having a similar relationship to the property, would
be responsible for its safe condition.” (Low v. City of Sacramento (1970) 7
Cal.App.3d 826, 833–834 [87 Cal.Rptr. 173] [city and county jointly liable for
defect in parking strip fronting county hospital].)
• “The Low-type inquiry and result are only appropriate ‘. . . [where] the public
entity’s relationship to the dangerous property is not clear . . . .’ ” (Searcy v.
Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 800 [223 Cal.Rptr. 206],
internal citation omitted.)
• “For liability to be imposed on a public entity for a dangerous condition of
property, the entity must be in a position to protect against or warn of the
hazard. Therefore, the crucial element is not ownership, but rather control.”
(Mamola v. State of California ex rel. Dept. of Transportation (1979) 94
Cal.App.3d 781, 788 [156 Cal.Rptr. 614], internal citation omitted.)
• “[I]n identifying the defendant with whom control resides, location of the power
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to correct the dangerous condition is an aid.” (Low, supra, 7 Cal.App.3d at p.
832.)
• The issue of control may be decided as a matter of law if the facts are
uncontroverted. (Aaitui, supra, 29 Cal.App.4th at p. 1377; Low, supra, 7
Cal.App.3d at p. 834.)
• In Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 385 [67 Cal.Rptr.
197], the court found that the city had control over a railroad right-of-way over a
city street where a city ordinance had reserved extensive powers to regulate and
inspect the railroad company’s easement.
• The requisite ownership or control must exist at the time of the incident.
(Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 [192
Cal.Rptr. 580]; Tolan v. State of California ex rel. Dept. of Transportation (1979)
100 Cal.App.3d 980, 983 [161 Cal.Rptr. 307].)
• “[A] public entity can be held liable for an accident caused by a condition that
exists on property adjacent to a public highway if the condition ‘ “ ‘is so
connected with or in such proximity to the traveled portion of the highway as to
render it unsafe to those traveling thereon.’ ” ’ ” (Carson v. Facilities
Development Co. (1984) 36 Cal.3d 830, 841 [206 Cal.Rptr. 136, 686 P.2d 656],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 302–306
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.9–12.14
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[3][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
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1102. Definition of “Dangerous Condition” (Gov. Code, § 830(a))
A “dangerous condition” is a condition of public property that creates a
substantial risk of injury to members of the general public when the
property [or adjacent property] is used with reasonable care and in a
reasonably foreseeable manner. A condition that creates only a minor
risk of injury is not a dangerous condition. [Whether the property is in a
dangerous condition is to be determined without regard to whether
[[name of plaintiff]/ [or] [name of third party]] exercised or failed to
exercise reasonable care in [his/her/nonbinary pronoun] use of the
property.]
New September 2003; Revised June 2010, May 2020
Directions for Use
Give this instruction if a plaintiff claims that a condition of public property creates a
substantial risk of injury to the plaintiff as a user of public or adjacent property
when the property was used with reasonable care and in a reasonably foreseeable
manner. (Gov. Code, § 830(a).) For claims involving conditions on the adjacent
property that are alleged to have contributed to making the public property
dangerous, give CACI No. 1125, Conditions on Adjacent Property.
Give the last sentence if comparative fault is at issue. It clarifies that comparative
fault does not negate the possible existence of a dangerous condition. (See Fredette
v. City of Long Beach (1986) 187 Cal.App.3d 122, 131 [231 Cal.Rptr. 598].)
Sources and Authority
• “Dangerous Condition” Defined. Government Code section 830(a).
• No Liability for Minor Risk. Government Code section 830.2.
• “The Act defines a ‘ “[d]angerous condition” ’ as ‘a condition of property that
creates a substantial (as distinguished from a minor, trivial or insignificant) risk
of injury when such property or adjacent property is used with due care in a
manner in which it is reasonably foreseeable that it will be used.’ Public
property is in a dangerous condition within the meaning of section 835 if it ‘is
physically damaged, deteriorated, or defective in such a way as to foreseeably
endanger those using the property itself.’ ” (Cordova v. City of L.A. (2015) 61
Cal.4th 1099, 1105 [190 Cal.Rptr.3d 850, 353 P.3d 773], internal citations
omitted.)
• “A public entity is not, without more, liable under section 835 for the harmful
conduct of third parties on its property. But if a condition of public property
‘creates a substantial risk of injury even when the property is used with due
care’, a public entity ‘gains no immunity from liability simply because, in a
particular case, the dangerous condition of its property combines with a third
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party’s negligent conduct to inflict injury.’ ” (Cordova, supra, 61 Cal.4th at p.
1105, internal citations omitted.)
• “In general, ‘[whether] a given set of facts and circumstances creates a
dangerous condition is usually a question of fact and may only be resolved as a
question of law if reasonable minds can come to but one conclusion.’ ”
(Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810
[205 Cal.Rptr. 842, 685 P.2d 1193], internal citation omitted.)
• “An initial and essential element of recovery for premises liability under the
governing statutes is proof a dangerous condition existed. The law imposes no
duty on a landowner—including a public entity—to repair trivial defects, or ‘to
maintain [its property] in an absolutely perfect condition.’ ” (Stathoulis v. City of
Montebello (2008) 164 Cal.App.4th 559, 566 [78 Cal.Rptr.3d 910], internal
citations omitted.)
• “The status of a condition as ‘dangerous’ for purposes of the statutory definition
does not depend on whether the plaintiff or other persons were actually
exercising due care but on whether the condition of the property posed a
substantial risk of injury to persons who were exercising due care.” (Cole v.
Town of Los Gatos (2012) 205 Cal.App.4th 749, 768 [140 Cal.Rptr.3d 722],
original italics.)
• “[T]he fact the particular plaintiff may not have used due care is relevant only to
his [or her] comparative fault and not to the issue of the presence of a dangerous
condition.” (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451,
1459 [192 Cal.Rptr.3d 376].)
• “The negligence of a plaintiff-user of public property . . . is a defense which
may be asserted by a public entity; it has no bearing upon the determination of a
‘dangerous condition’ in the first instance. . . . If, however, it can be shown that
the property is safe when used with due care and that a risk of harm is created
only when foreseeable users fail to exercise due care, then such property is not
‘dangerous’ within the meaning of section 830, subdivision (a).” (Fredette,
supra, 187 Cal.App.3d at p. 131, internal citation omitted.)
• “Even though it is foreseeable that persons may use public property without due
care, a public entity may not be held liable for failing to take precautions to
protect such persons.” (Fredette, supra, 187 Cal.App.3d at p. 132, internal
citation omitted.)
• “With respect to public streets, courts have observed ‘any property can be
dangerous if used in a sufficiently improper manner. For this reason, a public
entity is only required to provide roads that are safe for reasonably foreseeable
careful use. [Citation.] “If [] it can be shown that the property is safe when used
with due care and that a risk of harm is created only when foreseeable users fail
to exercise due care, then such property is not ‘dangerous’ within the meaning of
section 830, subdivision (a).” [Citation.]’ ” (Sun v. City of Oakland (2008) 166
Cal.App.4th 1177, 1183 [83 Cal.Rptr.3d 372], internal citations omitted.)
• “A public entity is not charged with anticipating that a person will use the
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property in a criminal way, here, driving with a ‘willful or wanton disregard for
safety of persons or property . . . .’ ” (Fuller v. Department of Transportation
(2019) 38 Cal.App.5th 1034, 1042 [251 Cal.Rptr.3d 549].)
• “[A] prior dangerous condition may require street lighting or other means to
lessen the danger but the absence of street lighting is itself not a dangerous
condition.” (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124,
133 [142 Cal.Rptr.3d 633].)
• “Although public entities may be held liable for injuries occurring to reasonably
foreseeable users of the property, even when the property is used for a purpose
for which it is not designed or which is illegal, liability may ensue only if the
property creates a substantial risk of injury when it is used with due care.
Whether a condition creates a substantial risk of harm depends on how the
general public would use the property exercising due care, including children
who are held to a lower standard of care. (§ 830.) The standard is an objective
one; a plaintiff’s particular condition . . . , does not alter the standard.”
(Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466 [72
Cal.Rptr.2d 464], internal citations omitted.)
• “A public entity may be liable for a dangerous condition of public property even
where the immediate cause of a plaintiff’s injury is a third party’s negligence if
some physical characteristic of the property exposes its users to increased danger
from third party negligence. ‘But it is insufficient to show only harmful third
party conduct, like the conduct of a motorist. “ ‘[T]hird party conduct, by itself,
unrelated to the condition of the property, does not constitute a “dangerous
condition” for which a public entity may be held liable.’ ” . . . There must be a
defect in the physical condition of the property and that defect must have some
causal relationship to the third party conduct that injures the plaintiff. . . .’ ”
(Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1069–1070
[129 Cal.Rptr.3d 690], internal citation omitted.)
• “Nothing in the provisions of section 835, however, specifically precludes a
finding that a public entity may be under a duty, given special circumstances, to
protect against harmful criminal conduct on its property.” (Peterson, supra, 36
Cal.3d at pp. 810–811, internal citations omitted.)
• “Two points applicable to this case are . . . well established: first, that the
location of public property, by virtue of which users are subjected to hazards on
adjacent property, may constitute a ‘dangerous condition’ under sections 830 and
835; second, that a physical condition of the public property that increases the
risk of injury from third party conduct may be a ‘dangerous condition’ under the
statutes.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th
139, 154 [132 Cal.Rptr.2d 341, 65 P.3d 807].)
• “[T]he absence of other similar accidents is ‘relevant to the determination of
whether a condition is dangerous.’ But the city cites no authority for the
proposition that the absence of other similar accidents is dispositive of whether a
condition is dangerous, or that it compels a finding of nondangerousness absent
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other evidence.” (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346
[107 Cal.Rptr.3d 730], original italics, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 321
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 12.15
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[2][a] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
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1103. Notice (Gov. Code, § 835.2)
[Name of plaintiff] must prove that [name of defendant] had notice of the
dangerous condition before the incident occurred. To prove that there
was notice, [name of plaintiff] must prove:
[That [name of defendant] knew of the condition and knew or should
have known that it was dangerous. A public entity knows of a dangerous
condition if an employee knows of the condition and reasonably should
have informed the entity about it.]
[or]
[That the condition had existed for enough time before the incident and
was so obvious that the [name of defendant] reasonably should have
discovered the condition and known that it was dangerous.]
New September 2003
Directions for Use
This instruction is intended to be used where the plaintiff relies on Government
Code section 835(b). This instruction should be modified if the plaintiff is relying on
both section 835(a) and section 835(b) to clarify that proof of notice is not
necessary under section 835(a).
For an instruction regarding reasonable inspection systems, see CACI No. 1104,
Inspection System.
Sources and Authority
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• “[Defendant] asserts that ‘[t]he absence of any prior accidents or injuries on the
gravel shoulder is evidence of lack of notice.’ Assuming this to be true, at most
it establishes grounds for a finding in [defendant]’s favor, which is hardly
enough to sustain a summary judgment. Nor is plaintiff required to prove that
[defendant] knew for a fact that accidents of this kind would occur. The test for
actual notice was satisfied if [defendant] had ‘actual knowledge of the existence
of the condition and knew or should have known of its dangerous character.’ ”
(Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 779–780 [140
Cal.Rptr.3d 722].)
• “To establish ‘actual notice,’ it is not enough to show that the state employees
had a general knowledge that people do leave hot coals on public beaches. There
must be some evidence that the employees had knowledge of the particular
dangerous condition in question.” (State v. Superior Court of San Mateo County
(1968) 263 Cal.App.2d 396, 399 [69 Cal.Rptr. 683], internal citations omitted.)
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• “Whether the dangerous condition was obvious and whether it existed for a
sufficient period of time are threshold elements to establish a claim of
constructive notice. Where the plaintiff fails to present direct or circumstantial
evidence as to either element, his claim is deficient as a matter of law.” (Heskel
v. City of San Diego (2014) 227 Cal.App.4th 313, 317 [173 Cal.Rptr.3d 768],
internal citation omitted.)
• “ ‘It is well settled that constructive notice can be shown by the long continued
existence of the dangerous or defective condition, and it is a question of fact for
the jury to determine whether the condition complained of has existed for a
sufficient time to give the public agency constructive notice.’ ” (Erfurt v. State of
California (1983) 141 Cal.App.3d 837, 844–845 [190 Cal.Rptr 569], internal
citations omitted.)
• “Admissible evidence for establishing constructive notice is defined by
[Government Code section 835.2(b)] as including whether a reasonably adequate
inspection system would have informed the public entity, and whether it
maintained and operated such an inspection system with due care.” (Heskel,
supra, 227 Cal.App.4th at p. 317.)
• “In the instant case, it can be validly argued that there was a triable issue on the
question of inspection, but in determining whether there is constructive notice,
the method of inspection has been held to be secondary.” (Superior Court of San
Mateo County, supra, 263 Cal.App.2d at p. 400, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 323
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.45–12.51
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
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1104. Inspection System (Gov. Code, § 835.2(b)(1) & (2))
In deciding whether [name of defendant] should have discovered the
dangerous condition, you may consider whether it had a reasonable
inspection system and whether a reasonable system would have revealed
the dangerous condition.
[In determining whether an inspection system is reasonable, you may
consider the practicality and cost of the system and balance those factors
against the likelihood and seriousness of the potential danger if no such
system existed.]
[and/or]
[If [name of defendant] had a reasonable inspection system but did not
detect the dangerous condition, you may consider whether it used
reasonable care in maintaining and operating the system.]
New September 2003
Directions for Use
Read the first paragraph and one or both of the bracketed paragraphs as appropriate
to the facts.
Sources and Authority
• Admissible Evidence of Due Care. Government Code section 835.2(b).
• “Constructive notice may be found where the dangerous condition would have
been discovered by a reasonable inspection.” (Straughter v. State of California
(1976) 89 Cal.App.3d 102, 109 [152 Cal.Rptr. 147], citing to Stanford v. City of
Ontario (1972) 6 Cal.3d 870, 882 [101 Cal.Rptr. 97, 495 P.2d 425].)
• “The questions of whether a dangerous condition could have been discovered by
reasonable inspection and whether there was adequate time for preventive
measures are properly left to the jury.” (Carson v. Facilities Development Co.
(1984) 36 Cal.3d 830, 843 [206 Cal.Rptr. 136, 686 P.2d 656], internal citations
omitted.)
• “Although judicial decisions do not always link the issue of constructive notice
to the reasonable inspection system . . . , the Tort Claims Act indicates that,
absent other persuasive evidence, the relationship between constructive notice
and inspection may be crucial.” (California Government Tort Liability Practice
(Cont.Ed.Bar 3d ed. 1992), § 3.37.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 323
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
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§§ 12.48–12.50
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
1105–1109. Reserved for Future Use
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1110. Affirmative Defense—Natural Conditions (Gov. Code,
§ 831.2)
A public entity is not responsible for harm caused by a natural condition
of an unimproved public property. If [name of defendant] proves that
[name of plaintiff]’s injury was caused by such a condition, then it is not
responsible for the injury.
New September 2003
Sources and Authority
• Natural Condition of Unimproved Public Property. Government Code section
831.2.
• Public Beaches. Government Code section 831.21.
• “The immunity provided by section 831.2 is absolute and applies regardless of
whether the public entity had knowledge of the dangerous condition or failed to
give warning. The legislative purpose in enacting section 831.2 was to ensure
that public entities will not prohibit public access to recreational areas due to the
burden and expense of defending against personal injury suits and of placing
such land in a safe condition.” (Goddard v. Department of Fish & Wildlife
(2015) 243 Cal.App.4th 350, 360 [196 Cal.Rptr.3d 625], internal citations
omitted.)
• “The natural condition immunity applies even ‘where the public entity had
knowledge of a dangerous condition which amounted to a hidden trap.’ As a
consequence, courts have held there is no liability for failure to warn of a known
dangerous condition when the danger is a natural condition of unimproved
public property.” (Alana M. v. State of California (2016) 245 Cal.App.4th 1482,
1488 [200 Cal.Rptr.3d 410], internal citation omitted.)
• “The statutory immunity extends to ‘an injury caused by a natural condition of
any unimproved public property.’ The use of the term ‘caused’ is significant.
Here, although the injury occurred on improved property, that is, the paved
parking lot, it was caused by the trees, native flora located near—and perhaps
superadjacent to—the improved parking lot, but themselves on unimproved
property.” (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 177 [162
Cal.Rptr.3d 796], original italics, footnote and internal citations omitted.)
• “[T]he statute presents two fact questions: whether a condition is ‘natural’ and
whether the property is ‘unimproved’ public property.” (County of San Mateo v.
Superior Court (2017) 13 Cal.App.5th 724, 731 [221 Cal.Rptr.3d 138].)
• “[T]o qualify public property as improved so as to take it outside the immunity
statute ‘some form of physical change in the condition of the property at the
location of the injury, which justifies the conclusion that the public entity is
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responsible for reasonable risk management in that area, [is] required to preclude
application of the immunity.’ ” (Meddock, supra, 220 Cal.App.4th at p. 178 [162
Cal.Rptr.3d 796], original italics.)
• “It is also the rule that ‘improvement of a portion of a park area does not
remove the immunity from the unimproved areas.’ ‘The reasonableness of this
rule is apparent. Otherwise, the immunity as to an entire park area improved in
any way would be demolished. [Citation.] This would, in turn, seriously thwart
accessibility and enjoyment of public lands by discouraging the construction of
such improvements as restrooms, fire rings, campsites, entrance gates, parking
areas and maintenance buildings.’ ” (Alana M., supra, 245 Cal.App.4th at pp.
1488−1489.)
• “We express no opinion, however, as to whether proof of a causal link is merely
sufficient to defeat immunity or, as Alana M. held, necessary. [Plaintiff] contends
proof of a causal connection between improvements and the accident is
necessary to establish that property is improved and thus accepts the burden of
having to prove this. Therefore, for purposes here, we will assume without
deciding that proof that human conduct or improvements created, contributed to,
or exacerbated the dangerousness of a natural condition is not only a sufficient
but necessary, additional element of establishing that property is ‘improved.’ ”
(County of San Mateo, supra, 13 Cal.App.5th at p. 740.)
• “It is now generally settled that human-altered conditions, especially those that
have existed for some years, which merely duplicate models common to nature
are still ‘natural conditions’ as a matter of law for the purposes of Government
Code section 831.2.” (Tessier v. City of Newport Beach (1990) 219 Cal.App.3d
310, 314 [268 Cal.Rptr. 233].)
• “Immunity under section 831.2 exists even where the public entity’s nearby
improvements together with natural forces add to the buildup of sand on a public
beach.” (Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 188 [263
Cal.Rptr. 479].)
• “The statutory immunity is fully applicable to manmade lakes and reservoirs.
Moreover, section 831.2 has been broadly construed to provide immunity even
where a natural condition has been affected in some manner by human activity
or nearby improvements.” (Goddard, supra, 243 Cal.App.4th at p. 361, internal
citations omitted.)
• “The mere attachment of a rope on defendant’s undeveloped land by an
unknown third party did not change the ‘natural condition’ of the land.”
(Kuykendall v. State of California (1986) 178 Cal.App.3d 563, 566 [223
Cal.Rptr. 763].)
• “Essentially, [plaintiff]’s position is she was entitled to a campsite in the forest
safe from falling trees, but this ‘is exactly the type of complaint section 831.2
was designed to protect public entities against.’ ” (Alana M., supra, 245
Cal.App.4th at p. 1493.)
• “The courts have generally understood campsites with amenities to be improved,
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including the court in Alana M.” (County of San Mateo, supra, 13 Cal.App.5th
at p. 736.)
• “Given the intent of the Legislature in enacting section 831.2, we hold that wild
animals are a natural part of the condition of unimproved public property within
the meaning of the statute.” (Arroyo, supra, 34 Cal.App.4th at p. 762.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 302, 308
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2825 et seq. (The Rutter Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.82–12.87
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.214
(Matthew Bender)
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1111. Affirmative Defense—Condition Created by Reasonable Act
or Omission (Gov. Code, § 835.4(a))
A public entity is not legally responsible for harm caused by a dangerous
condition if the act or omission of its employee that created the
dangerous condition was reasonable. If [name of defendant] proves that
the act or omission that created the dangerous condition was reasonable,
then your verdict must be for [name of defendant].
In determining whether the employee’s conduct was reasonable, you
must weigh the likelihood and the seriousness of the potential injury
against the practicality and cost of either:
(a) taking alternative action that would not have created the risk of
injury; or
(b) protecting against the risk of injury.
New September 2003; Revised April 2007, April 2008
Directions for Use
This instruction states a defense to the theory that the entity created a dangerous
condition of public property. (Gov. Code, §§ 835(a), 835.4(a).)
Sources and Authority
• No Public Entity Liability for Reasonable Act or Omission. Government Code
section 835.4(a).
• “There are, of course, affirmative defenses pleaded which may require trial as
well: such as . . . the special defense under Government Code, section 835.4 of
the reasonableness, practicability, and cost of the alternative measures plaintiffs
claim should have been taken to protect against a dangerous condition.”Hibbs v.
Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 172 [60
Cal.Rptr. 364].)
• “Reasonableness is a question of fact for the trier of fact, and is determined by
weighing the probability and gravity of potential injury against the practicability
and cost of the action.” (Biron v. City of Redding (2014) 225 Cal.App.4th 1264,
1281 [170 Cal.Rptr.3d 848].)
• “The Court of Appeal found conceptual difficulties in the interplay between
section 835, subdivision (a) (plaintiff must establish negligence) and section
835.4, subdivision (a) (providing a defense if the public entity establishes that
the act or omission that created the condition was reasonable). As it noted,
normally ‘negligence is the absence of reasonableness.’ That being the case, the
court reasoned, one cannot reasonably act negligently. Because of this
conundrum, the Court of Appeal found that section 835.4 does not provide an
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affirmative defense. (¶) We disagree. Section 835.4 clearly creates an affirmative
defense that the public entity must establish. Moreover, the Legislature created
this defense specifically for public entities. The California Law Revision
Commission explained, ‘Under this section, a public entity may absolve itself
from liability for creating or failing to remedy a dangerous condition by showing
that it would have been too costly and impractical for the public entity to have
done anything else. . . . This defense has been provided public entities in
recognition that, despite limited manpower and budgets, there is much that they
are required to do. Unlike private enterprise, a public entity often cannot weigh
the advantage of engaging in an activity against the cost and decide not to
engage in it. Government cannot ‘go out of the business’ of governing.
Therefore, a public entity should not be liable for injuries caused by a dangerous
condition if it is able to show that under all the circumstances, including the
alternative courses of action available to it and the practicability and cost of
pursuing such alternatives, its action in creating or failing to remedy the
condition was not unreasonable.’ ” (Metcalf v. County of San Joaquin (2008) 42
Cal.4th 1121, 1137–1138 [72 Cal.Rptr.3d 382, 176 P.3d 654], footnote and
internal citation omitted.)
• “The reasonableness standard referred to in section 835.4 differs from the
reasonableness standard that applies under sections 830 and 835 and ordinary
tort principles. Under the latter principles, the reasonableness of the defendant’s
conduct does not depend upon the existence of other, conflicting claims on the
defendant’s resources or the political barriers to acting in a reasonable manner.”
(Metcalf, supra, 42 Cal.4th at p. 1138.)
• “In sum, we conclude that negligence under section 835, subdivision (a), is
established under ordinary tort principles concerning the reasonableness of a
defendant’s conduct in light of the foreseeable risk of harm. The plaintiff has the
burden to demonstrate that the defendant’s conduct was unreasonable under this
standard . . . . If the plaintiff carries this burden, the public entity may defend
under the provisions of section 835.4—a defense that is unique to public
entities.” (Metcalf, supra, 42 Cal.4th at p. 1139.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 324
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.61–12.62
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.86 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.300
(Matthew Bender)
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1112. Affirmative Defense—Reasonable Act or Omission to
Correct (Gov. Code, § 835.4(b))
A public entity is not responsible for harm caused by a dangerous
condition if its failure to take sufficient steps to protect against the risk
of injury was reasonable. If [name of defendant] proves that its conduct
was reasonable, then your verdict must be for [name of defendant].
In determining whether [name of defendant]’s conduct was reasonable,
you must consider how much time and opportunity it had to take action.
You must also weigh the likelihood and the seriousness of the potential
injury against the practicality and cost of protecting against the risk of
injury.
New September 2003; Revised April 2007, April 2008
Directions for Use
This instruction states a defense to the theory that the entity had notice of a
dangerous condition (that it did not create) and failed to take adequate protective
measures. (Gov. Code, §§ 835(b), 835.4(b).)
Sources and Authority
• No Public Entity Liability for Reasonable Act or Omission. Government Code
section 835.4(b).
• “There are, of course, affirmative defenses pleaded which may require trial as
well: such as . . . the special defense under Government Code, section 835.4 of
the reasonableness, practicability, and cost of the alternative measures plaintiffs
claim should have been taken to protect against a dangerous condition.” (Hibbs
v. Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 172 [60
Cal.Rptr. 364].)
• “Under section 835.4, subdivision (b), however, the question of the
reasonableness of the state’s action in light of the practicability and cost of the
applicable safeguards is a matter for the jury’s determination.” (Ducey v. Argo
Sales Co. (1979) 25 Cal.3d 707, 720 [159 Cal.Rptr. 835, 602 P.2d 755], footnote
omitted.)
• “Unlike section 830.6 relating to design immunity, section 835.4 subdivision (b),
does not provide that the reasonableness of the action taken shall be determined
by the ‘trial or appellate court.’ ” (De La Rosa v. City of San Bernardino (1971)
16 Cal.App.3d 739, 749 [94 Cal.Rptr. 175].)
• “The reasonableness standard referred to in section 835.4 differs from the
reasonableness standard that applies under sections 830 and 835 and ordinary
tort principles. Under the latter principles, the reasonableness of the defendant’s
conduct does not depend upon the existence of other, conflicting claims on the
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defendant’s resources or the political barriers to acting in a reasonable manner.
But, as the California Law Revision Commission recognized, public entities may
also defend against liability on the basis that, because of financial or political
constraints, the public entity may not be able to accomplish what reasonably
would be expected of a private entity.” (Metcalf v. County of San Joaquin (2008)
42 Cal.4th 1121, 1138 [72 Cal.Rptr.3d 382, 176 P.3d 654].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 324
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.63–12.65
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.86 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.300
(Matthew Bender)
1113–1119. Reserved for Future Use
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1120. Failure to Provide Traffic Control Signals (Gov. Code,
§ 830.4)
You may not find that [name of defendant]’s property was in a dangerous
condition just because it did not provide a [insert device or marking].
However, you may consider the lack of a [insert device or marking], along
with other circumstances shown by the evidence, in determining whether
[name of defendant]’s property was dangerous.
New September 2003
Sources and Authority
• No Liability for Failure to Provide Traffic Controls. Government Code section
830.4.
• “ ‘[T]he statutory scheme precludes a plaintiff from imposing liability on a
public entity for creating a dangerous condition merely because it did not install
the described traffic control devices.’ In short, ‘[t]he lack of a traffic signal at the
intersection does not constitute proof of a dangerous condition.’ ” (Mixon v.
Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 135 [142 Cal.Rptr.3d
633], internal citation omitted.)
• “Cases interpreting this statute have held that it provides a shield against liability
only in those situations where the alleged dangerous condition exists solely as a
result of the public entity’s failure to provide a regulatory traffic device or street
marking. If a traffic intersection is dangerous for reasons other than the failure to
provide regulatory signals or street markings, the statute provides no immunity.”
(Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531,
1534–1535 [269 Cal.Rptr. 58].)
• “A public entity does not create a dangerous condition on its property ‘merely
because of the failure to provide regulatory traffic control signals, stop signs,
yield right-of-way signs, or speed restriction signs . . . .’ (§ 830.4.) If, on the
other hand, the government installs traffic signals and invites the public to
justifiably rely on them, liability will attach if the signals malfunction, confusing
or misleading motorists, and causing an accident to occur. The reasoning behind
this rule is that the government creates a dangerous condition and a trap when it
operates traffic signals that, for example, direct motorists to ‘go’ in all four
directions of an intersection simultaneously, with predictable results.”
(Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1194–1195 [45
Cal.Rptr.2d 657], internal citations omitted.)
• “If the government turns off traffic signals entirely to avoid confusion, liability
does not attach. ‘When the [traffic] lights were turned off, their defective
condition could no longer mislead or misdirect the injured party.’ The same
result obtains whether the traffic signals are extinguished by design or by
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CACI No. 1120 DANGEROUS CONDITION OF PUBLIC PROPERTY
accident.” (Chowdhury, supra, 38 Cal.App.4th at p. 1195, internal citations
omitted.)
• “Although section 830.4 . . . provides that a condition of public property is not
a dangerous one merely because of the failure to provide regulatory traffic
control signals, the absence of such signals for the protection of pedestrians must
be taken into consideration, together with other factors. . . . [T]he lack of
crosswalk markings, better illumination and warning signs became important
factors in the case when the [pedestrian] subway itself was in a dangerous
condition.” (Gardner v. City of San Jose (1967) 248 Cal.App.2d 798, 803 [57
Cal.Rptr. 176].)
• “In short, a dangerous condition proven to exist, for reasons other than or in
addition to the mere failure to provide the controls or markings described in
section 830.4, may constitute a proximate cause of injury without regard to
whether such condition also constitutes a ‘trap,’ as described by section 830.8, to
one using the public improvement with due care because of the failure to post
signs different from those dealt with by section 830.4 warning of that dangerous
condition.” (Washington, supra, 219 Cal.App.3d at p. 1537.)
• “[D]efendant did not cite, nor have we located, any authority to extend this
statutory immunity to a private entity alleged to have been negligent. To the
contrary, a defendant that ‘is not a “public entity” . . . is not entitled to claim
the immunity set forth in the Tort Claims Act.’ ” (Lichtman v. Siemens Industry
Inc. (2017) 16 Cal.App.5th 914, 930 [224 Cal.Rptr.3d 725].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 316
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 12.75
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.210
(Matthew Bender)
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1121. Failure to Provide Traffic Warning Signals, Signs, or
Markings (Gov. Code, § 830.8)
A public entity is not responsible for harm caused by the lack of a [insert
relevant warning device] unless a reasonably careful person would not
notice or anticipate a dangerous condition of property without the [insert
relevant warning device].
New September 2003
Sources and Authority
• No Liability for Failure to Provide Traffic Control. Government Code section
830.8.
• “Section 830.8 provides a limited immunity for public entities exercising their
discretion in the placement of warning signs described in the Vehicle Code. ‘The
broad discretion allowed a public entity in the placement of road control signs is
limited, however, by the requirement that there be adequate warning of
dangerous conditions not reasonably apparent to motorists.’ Thus where the
failure to post a warning sign results in a concealed trap for those exercising due
care, section 830.8 immunity does not apply.” (Kessler v. State of California
(1988) 206 Cal.App.3d 317, 321–322 [253 Cal.Rptr. 537], internal citations
omitted.)
• “[A] concealed dangerous condition that is a trap to motorists or pedestrians may
require the posting of a warning sign but the absence of a warning sign itself is
not a dangerous condition.” (Mixon v. Pacific Gas & Electric Co. (2012) 207
Cal.App.4th 124, 136 [142 Cal.Rptr.3d 633].)
• “A public entity may be liable for accidents proximately caused by its failure to
provide a signal, sign, marking or device to warn of a dangerous condition
which endangers the safe movement of traffic ‘and which would not be
reasonably apparent to, and would not have been anticipated by, a person
exercising due care.’ This ‘concealed trap’ statute applies to accidents
proximately caused when, for example, the public entity fails to post signs
warning of a sharp or poorly banked curve ahead on its road or of a hidden
intersection behind a promontory, or where a design defect in the roadway
causes moisture to freeze and create an icy road surface, a fact known to the
public entity but not to unsuspecting motorists, or where road work is being
performed on a highway.” (Chowdhury v. City of Los Angeles (1995) 38
Cal.App.4th 1187, 1196–1197 [45 Cal.Rptr.2d 657], internal citations omitted.)
• “[W]arning devices are required under Government Code section 830.8 and 830
(fog) only if a dangerous condition exists.” (Callahan v. City and County of San
Francisco (1971) 15 Cal.App.3d 374, 380 [93 Cal.Rptr. 122].)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 316, 317
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.76–12.79
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.304
(Matthew Bender)
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1122. Affirmative Defense—Weather Conditions Affecting Streets
and Highways (Gov. Code, § 831)
[Name of defendant] claims it cannot be held responsible for [name of
plaintiff]’s harm because the harm was caused by [insert weather
condition, e.g., fog, wind, rain, flood, ice, or snow] affecting the use of a
public street or highway. To succeed, [name of defendant] must prove
both of the following:
1. That [insert weather condition, e.g., fog, wind, rain, flood, ice, or
snow] affecting the use of a public street or highway was the
cause of [name of plaintiff]’s harm; and
2. That a reasonably careful person using the public streets and
highways would have noticed the [insert weather condition, e.g.,
fog, wind, rain, flood, ice, or snow] and anticipated its effect on the
use of the street or highway.
New September 2003
Directions for Use
The immunity provided by Government Code section 831 does not apply to: (1)
effects that would not be reasonably apparent to and anticipated by a person
exercising reasonable care, (2) situations where the weather effect combines with
other factors that make the road dangerous, (3) sunlight that blinds drivers, or (4)
where the weather conditions resulted in physical damage to or deterioration of the
street or highway. (Erfurt v. State of California (1983) 141 Cal.App.3d 837,
845–846 [190 Cal.Rptr. 569]; see Flournoy v. State of California (1969) 275
Cal.App.2d 806, 814 [80 Cal.Rptr. 485].)
Sources and Authority
• No Liability for Weather Conditions. Government Code section 831.
• Weather immunity is an affirmative defense. (Bossi v. State of California (1981)
119 Cal.App.3d 313, 321 [174 Cal.Rptr. 93] [jury properly instructed regarding
section 831, but issue was moot because jury did not reach it]; see also Allyson
v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1319 [62
Cal.Rptr.2d 490].)
• CalTrans’s duty regarding transitory conditions affecting road surface and
highway safety is discretionary, not mandatory. (Allyson, supra, 53 Cal.App.4th
at p. 1319.) Accordingly, section 831 immunity is available to CalTrans in
appropriate circumstances. (Id. at pp. 1320–1321.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 333
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2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.80–12.81
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.301
(Matthew Bender)
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1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6)
[Name of defendant] claims that it is not responsible for harm to [name of
plaintiff] caused by the plan or design of the [insert type of property, e.g.,
highway]. In order to prove this claim, [name of defendant] must prove
both of the following:
1. That the plan or design was [prepared in conformity with
standards previously] approved before
[construction/improvement] by the [[legislative body of the public
entity, e.g., city council]/[other body or employee, e.g., city civil
engineer]] exercising [its/specifically delegated] discretionary
authority to approve the plan or design; and
2. That the plan or design of the [e.g., highway] was a substantial
factor in causing harm to [name of plaintiff].
New December 2014; Revised June 2016
Directions for Use
Give this instruction to present the affirmative defense of design immunity to a
claim for liability caused by a dangerous condition on public property. (Gov. Code,
§ 830.6; see Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 369 [169
Cal.Rptr.3d 880] [design immunity is an affirmative defense that the public entity
must plead and prove].)
A public entity claiming design immunity must establish three elements: (1) a causal
relationship between the plan or design and the accident; (2) discretionary approval
of the plan or design before construction; and (3) substantial evidence supporting
the reasonableness of the plan or design. (Cornette v. Dept. of Transportation (2001)
26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332].) The first two elements,
causation and discretionary approval, are issues of fact for the jury to decide. (Id. at
pp. 74–75; see also Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550
[100 Cal.Rptr.3d 494] [elements may be resolved as issues of law only if facts are
undisputed].) The third element, substantial evidence of reasonableness, must be
tried by the court, not the jury. (Cornette, supra, 26 Cal.4th at pp. 66−67; see Gov.
Code, § 830.6.)
In element 1, select “its” if it is the governing body that has exercised its
discretionary authority. Select “specifically delegated” if it is some other body or
employee.
The discretionary authority to approve the plan or design must be “vested,” which
means that the body or employee actually had the express authority to approve it.
This authority cannot be implied from the circumstances. (Castro v. City of
Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457 [192 Cal.Rptr.3d 376].)
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Sources and Authority
• Design Immunity. Government Code section 830.6.
• “The purpose of design immunity ‘is to prevent a jury from second-guessing the
decision of a public entity by reviewing the identical questions of risk that had
previously been considered by the government officers who adopted or approved
the plan or design. [Citation.]’ ‘ “[T]o permit reexamination in tort litigation of
particular discretionary decisions where reasonable men may differ as to how the
discretion should be exercised would create too great a danger of impolitic
interference with the freedom of decision-making by those public officials in
whom the function of making such decisions has been vested.” ’ ” (Martinez,
supra, 225 Cal.App.4th at p. 369, internal citations omitted.)
• “Section 830.6 makes it quite clear that ‘the trial or appellate court’ is to
determine whether ‘there is any substantial evidence upon the basis of which (a)
a reasonable public employee could have adopted the plan or design or the
standards therefor or (b) a reasonable legislative body or other body or employee
could have approved the plan or design or the standards therefor.’ ” (Cornette,
supra, 26 Cal.4th at p. 66.)
• “To prove [the discretionary approval element of design immunity], the entity
must show that the design was approved ‘in advance’ of the construction ‘by the
legislative body of the public entity or by some other body or employee
exercising discretionary authority to give such approval or where such plan or
design is prepared in conformity with standards previously so approved
. . . .’ ‘Approval . . . is a vital precondition of the design immunity.’ ”
(Martinez, supra, 225 Cal.App.4th at p. 369, internal citations omitted.)
• “A detailed plan, drawn up by a competent engineering firm, and approved by a
city engineer in the exercise of his or her discretionary authority, is persuasive
evidence of the element of prior approval.” (Rodriguez v. Department of
Transportation (2018) 21 Cal.App.5th 947, 955 [230 Cal.Rptr.3d 852].)
• “In many cases, the evidence of discretionary authority to approve a design
decision is clear, or even undisputed. . . . When the discretionary approval issue
is disputed, however, as it was here, we must determine whether the person who
approved the construction had the discretionary authority to do so.” (Martinez,
supra, 225 Cal.App.4th at pp. 370−371, internal citations omitted.)
• “Discretionary approval need not be established with testimony of the individual
who approved the project. A former employee may testify to the entity’s
‘discretionary approval custom and practice’ even if the employee was not
involved in the approval process at the time the challenged plan was approved.”
(Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 947 [212 Cal.Rptr.3d
137], internal citation omitted.)
• “[T]he focus of discretional authority to approve a plan or design is fixed by law
and will not be implied. ‘[T]he public entity claiming design immunity must
prove that the person or entity who made the decision is vested with the
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DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1123
authority to do so. Recognizing “implied” discretionary approval would vitiate
this requirement and provide public entities with a blanket release from liability
that finds no support in section 830.6.’ ” (Castro, supra, 239 Cal.App.4th at p.
1457.)
• “We conclude that the discretionary approval element of section 830.6 does not
implicate the question whether the employee who approved the plans was aware
of design standards or was aware that the design deviated from those standards.
The issue of the adequacy of the deliberative process with respect to design
standards may be considered in connection with the court’s determination
whether there is substantial evidence that the design was reasonable. In addition,
the discretionary approval element does not require the entity to demonstrate in
its prima facie case that the employee who had authority to and did approve the
plans also had authority to disregard applicable standards.” (Hampton v. County
of San Diego (2015) 62 Cal.4th 340, 343 [195 Cal.Rptr.3d 773, 362 P.3d 417].)
• “[A] case involving design immunity does not function as a typical summary
judgment case would. The court’s role in evaluating the third element of the
design immunity is not to provide a de novo interpretation of the design, but
instead to decide whether there is ‘any substantial evidence’ supporting its
reasonableness.” (Menges v. Dept. of Transportation (2020) 59 Cal.App.5th 13,
21 [273 Cal.Rptr.3d 231].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 234 et seq., 273.
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2855 et seq. (The Rutter Group)
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85[2] (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.12 (Matthew
Bender)
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1124. Loss of Design Immunity (Cornette)
[Name of defendant] is responsible for harm to [name of plaintiff] caused
by the plan or design of the [insert type of property, e.g., “highway”] if
[name of plaintiff] proves all of the following:
1. That the [insert type of property, e.g., “highway”]’s plan[s] or
design[s] had become dangerous because of a change in physical
conditions;
2. That [name of defendant] had notice of the dangerous condition
created because of the change in physical conditions; and
3. [That [name of defendant] had a reasonable time to obtain the
funds and carry out the necessary corrective work to conform the
property to a reasonable design or plan;]
3. [or]
3. [That [name of defendant] was unable to correct the condition due
to practical impossibility or lack of funds but did not reasonably
attempt to provide adequate warnings of the dangerous
condition.]
New September 2003; Revised June 2010; Renumbered from CACI No. 1123 and
Revised December 2014
Directions for Use
Give this instruction if the plaintiff claims that the public entity defendant has lost
its design immunity because of changed conditions since the design or plan was
originally adopted. Read either or both options for element 3 depending on the facts
of the case.
If the applicability of design immunity in the first instance is disputed, give CACI
No. 1123, Affırmative Defense—Design Immunity. Also in this case, the introductory
paragraph might begin with “Even if [name of defendant] proves both of these
elements” (from CACI No. 1123).
Users should include CACI No. 1102, Definition of “Dangerous Condition,” and
CACI No. 1103, Notice, to define “dangerous condition” and “notice” in connection
with this instruction. Additionally, the meaning and legal requirements for a “change
of physical condition” have been the subject of numerous decisions involving
specific contexts. Appropriate additional instructions to account for these decisions
may be necessary.
Sources and Authority
• Design Immunity. Government Code section 830.6.
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DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1124
• “[W]here a plan or design of a construction of, or improvement to, public
property, although shown to have been reasonably approved in advance or
prepared in conformity with standards previously so approved, as being safe,
nevertheless in its actual operation under changed physical conditions produces a
dangerous condition of public property and causes injury, the public entity does
not retain the statutory immunity from liability conferred on it by section 830.6.”
(Dammann v. Golden Gate Bridge, Highway & Transportation Dist. (2012) 212
Cal.App.4th 335, 343 [150 Cal.Rptr.3d 829], quoting Baldwin v. State (1972) 6
Cal.3d 424, 438 [99 Cal.Rptr. 145, 491 P.2d 1121], original italics.)
• “Design immunity does not necessarily continue in perpetuity. To demonstrate
loss of design immunity a plaintiff must also establish three elements: (1) the
plan or design has become dangerous because of a change in physical
conditions; (2) the public entity had actual or constructive notice of the
dangerous condition thus created; and (3) the public entity had a reasonable time
to obtain the funds and carry out the necessary remedial work to bring the
property back into conformity with a reasonable design or plan, or the public
entity, unable to remedy the condition due to practical impossibility or lack of
funds, had not reasonably attempted to provide adequate warnings.” (Cornette v.
Dept. of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d
332], internal citations omitted.)
• “The rationale for design immunity is to prevent a jury from second-guessing the
decision of a public entity by reviewing the identical questions of risk that had
previously been considered by the government officers who adopted or approved
the plan or design.” (Cornette, supra, 26 Cal.4th at p. 69, internal citation
omitted.)
• “Section 830.6 makes it quite clear that ‘the trial or appellate court’ is to
determine whether ‘there is any substantial evidence upon the basis of which (a)
a reasonable public employee could have adopted the plan or design or the
standards therefor or (b) a reasonable legislative body or other body or employee
could have approved the plan or design or the standards therefor.’ The question
presented by this case is whether the Legislature intended that the three issues
involved in determining whether a public entity has lost its design immunity
should also be tried by the court. Our examination of the text of section 830.6,
the legislative history of that section, and our prior decisions leads us to the
conclusion that, where triable issues of material fact are presented, as they were
here, a plaintiff has a right to a jury trial as to the issues involved in loss of
design immunity.” (Cornette, supra, 26 Cal.4th at pp. 66–67.)
• “[T]echnological advances . . . do not constitute the ‘changed physical
conditions’ necessary to defeat the [defendant]’s defense of design immunity
under Baldwin and Cornette.” (Dammann, supra, 22 Cal.App.4th at p. 351.)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 338 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2865 et seq. (The Rutter Group)
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[3][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.12 (Matthew
Bender)
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1125. Conditions on Adjacent Property
[Name of public entity defendant]’s property may be considered dangerous
if [a] condition[s] on adjacent property contribute[s] to exposing those
using [name of public entity defendant]’s property to a substantial risk of
injury.
[Name of plaintiff] claims that the following condition[s] on adjacent
property contributed to making [name of public entity defendant]’s
property dangerous: [specify]. You should consider [this/these]
condition[s] in deciding whether [name of public entity defendant]’s
property was in a dangerous condition.
New November 2019
Directions for Use
Give this instruction if the plaintiff claims that conditions on property adjacent to
the public property that is alleged to be dangerous contributed to making the public
property dangerous. This instruction should be given with, and not instead of, the
applicable basic instructions for dangerous conditions on public property (see CACI
Nos. 1100 through 1103).
This instruction is for use when a plaintiff’s claim involves conditions on property
adjacent to the public property. A different instruction will be required if a
dangerous condition on public property creates a substantial risk of injury to one
using adjacent property.
Sources and Authority
• “A California Law Revision Commission comment accompanying the statute’s
1963 enactment expands on the relationship between public property and
adjacent property with regard to dangerous conditions: ‘ “Adjacent property” as
used in the definition of “dangerous condition” refers to the area that is exposed
to the risk created by a dangerous condition of the public property. . . . [¶] . . .
A public entity may be liable only for dangerous conditions of its own property.
But its own property may be considered dangerous if it creates a substantial risk
of injury to adjacent property or to persons on adjacent property; and its own
property may be considered dangerous if a condition on the adjacent property
exposes those using the public property to a substantial risk of injury.’ ”
(Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139,
147–148 [132 Cal.Rptr.2d 341, 65 P.3d 807].)
• “The third and fourth sentences of the City’s ‘[d]esign of the [d]riveway’
instruction improperly told the jury that it could not ‘rely on’ elements of the
driveway, including ‘the placement of the stop sign, the left turn pocket, and the
presence of the pink cement’ in deciding whether ‘a dangerous condition
existed.’ This was legally incorrect, and it directly conflicted with another
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CACI No. 1125 DANGEROUS CONDITION OF PUBLIC PROPERTY
instruction given to the jury, which told it that the City’s ‘property may be
considered dangerous if a condition on adjacent property, such as the pink
stamped concrete or the location of the stop sign, exposes those using the public
property to a substantial risk of injury in conjunction with the adjacent property.’
Giving the jury these two conflicting instructions could not have been anything
but hopelessly confusing to the jury.” (Guernsey v. City of Salinas (2018) 30
Cal.App.5th 269, 281–282 [241 Cal.Rptr.3d 335].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 321 et seq.
5 Levy et al., California Torts, Ch. 61, Tort Claims Against Public Entities and
Employees, § 61.01 et seq. (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Officers,
§ 464.84 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 190.213 (Matthew
Bender)
1126–1199. Reserved for Future Use
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VF-1100. Dangerous Condition of Public Property
We answer the questions submitted to us as follows:
1. Did [name of defendant] own [or control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the property in a dangerous condition at the time of the
injury?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the dangerous condition create a reasonably foreseeable risk
that this kind of injury would occur?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. [Did the negligent or wrongful conduct of [name of defendant]’s
employee acting within the scope of employment create the
dangerous condition?]
4. [or]
4. [Did [name of defendant] have notice of the dangerous condition
for a long enough time for [name of defendant] to have protected
against it?]
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the dangerous condition a substantial factor in causing harm
to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
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the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016, May
2020
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
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DANGEROUS CONDITION OF PUBLIC PROPERTY VF-1100
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1101. Dangerous Condition of Public Property—Affirmative
Defense—Reasonable Act or Omission (Gov. Code, § 835.4)
We answer the questions submitted to us as follows:
1. Did [name of defendant] own [or control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the property in a dangerous condition at the time of the
incident?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the dangerous condition create a reasonably foreseeable risk
that this kind of incident would occur?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. [Did negligent or wrongful conduct of [name of defendant]’s
employee acting within the scope of the employee’s employment
create the dangerous condition?]
4. Yes No
4. [or]
4. [Did [name of defendant] have notice of the dangerous condition
for a long enough time to have protected against it?]
4. Yes No
4. If your answer to [either option for] question 4 is yes, then
answer question 5. If you answered no [to both options], stop
here, answer no further questions, and have the presiding juror
sign and date this form.
5. Was the dangerous condition a substantial factor in causing harm
to [name of plaintiff]?
5. Yes No
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DANGEROUS CONDITION OF PUBLIC PROPERTY VF-1101
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. [Answer if you answered yes to the first option for question 4:
When you consider the likelihood and seriousness of potential
injury, compared with the practicality and cost of either (a)
taking alternative action that would not have created the risk of
injury, or (b) protecting against the risk of injury, was [name of
defendant]’s [act/specify failure to act] that created the dangerous
condition reasonable under the circumstances?]
6. Yes No
6. [or]
6. [Answer if you answered yes to the second option for question 4:
When you consider the likelihood and seriousness of potential
injury, compared with (a) how much time and opportunity [name
of defendant] had to take action, and (b) the practicality and cost
of protecting against the risk of injury, was [name of defendant]’s
failure to take sufficient steps to protect against the risk of injury
created by the dangerous condition reasonable under the
circumstances?]
6. Yes No
6. If your answer to [either option for] question 6 is no, then answer
question 7. If you answered yes [to both options], stop here,
answer no further questions, and have the presiding juror sign
and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, June 2010,
December 2010, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements, CACI No. 1111, Affırmative
Defense—Condition Created by Reasonable Act or Omission, and CACI No. 1112,
Affırmative Defense—Reasonable Act or Omission to Correct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
For questions 4 and 6, choose the first bracketed options if liability is alleged
because of an employee’s negligent conduct under Government Code section 835(a).
Use the second bracketed options if liability is alleged for failure to act after actual
or constructive notice under Government Code section 835(b). Both options may be
given if the plaintiff is proceeding under both theories of liability.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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DANGEROUS CONDITION OF PUBLIC PROPERTY VF-1101
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1102–VF-1199. Reserved for Future Use
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Copyright Judicial Council of California
PRODUCTS LIABILITY
1200. Strict Liability—Essential Factual Elements
1201. Strict Liability—Manufacturing Defect—Essential Factual Elements
1202. Strict Liability—“Manufacturing Defect” Explained
1203. Strict Liability—Design Defect—Consumer Expectation Test—Essential
Factual Elements
1204. Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements—Shifting Burden of Proof
1205. Strict Liability—Failure to Warn—Essential Factual Elements
1206. Strict Liability—Failure to Warn—Products Containing Allergens (Not
Prescription Drugs)—Essential Factual Elements
1207A. Strict Liability—Comparative Fault of Plaintiff
1207B. Strict Liability—Comparative Fault of Third Person
1208. Component Parts Rule
1209–1219. Reserved for Future Use
1220. Negligence—Essential Factual Elements
1221. Negligence—Basic Standard of Care
1222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual
Elements
1223. Negligence—Recall/Retrofit
1224. Negligence—Negligence for Product Rental/Standard of Care
1225–1229. Reserved for Future Use
1230. Express Warranty—Essential Factual Elements
1231. Implied Warranty of Merchantability—Essential Factual Elements
1232. Implied Warranty of Fitness for a Particular Purpose—Essential Factual
Elements
1233. Implied Warranty of Merchantability for Food—Essential Factual Elements
1234–1239. Reserved for Future Use
1240. Affirmative Defense to Express Warranty—Not “Basis of Bargain”
1241. Affirmative Defense—Exclusion or Modification of Express Warranty
1242. Affirmative Defense—Exclusion of Implied Warranties
1243. Notification/Reasonable Time
1244. Affirmative Defense—Sophisticated User
1245. Affirmative Defense—Product Misuse or Modification
1246. Affirmative Defense—Design Defect—Government Contractor
1247. Affirmative Defense—Failure to Warn—Government Contractor
1248. Affirmative Defense—Inherently Unsafe Consumer Product (Civ. Code,
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PRODUCTS LIABILITY
§ 1714.45)
1249. Affirmative Defense—Reliance on Knowledgeable Intermediary
1250–1299. Reserved for Future Use
VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at
Issue
VF-1201. Strict Products Liability—Design Defect—Affirmative Defense—Misuse
or Modification
VF-1202. Strict Products Liability—Design Defect—Risk-Benefit Test
VF-1203. Strict Products Liability—Failure to Warn
VF-1204. Products Liability—Negligence—Comparative Fault of Plaintiff at Issue
VF-1205. Products Liability—Negligent Failure to Warn
VF-1206. Products Liability—Express Warranty—Affirmative Defense—Not “Basis
of Bargain”
VF-1207. Products Liability—Implied Warranty of Merchantability—Affirmative
Defense—Exclusion of Implied Warranties
VF-1208. Products Liability—Implied Warranty of Fitness for a Particular Purpose
VF-1209–VF-1299. Reserved for Future Use
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1200. Strict Liability—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
a product [distributed/manufactured/sold] by [name of defendant] that:
[contained a manufacturing defect;] [or]
[was defectively designed;] [or]
[did not include sufficient [instructions] [or] [warning of potential
safety hazards].]
New September 2003
Sources and Authority
• “Products liability is the name currently given to the area of the law involving
the liability of those who supply goods or products for the use of others to
purchasers, users, and bystanders for losses of various kinds resulting from so-
called defects in those products.” (Johnson v. United States Steel Corp. (2015)
240 Cal.App.4th 22, 30 [192 Cal.Rptr.3d 158].)
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. GM Corp. (1994) 8 Cal.4th 548,
560 [34 Cal.Rptr.2d 607, 882 P.2d 298], internal citations omitted.)
• “Strict liability has been invoked for three types of defects—manufacturing
defects, design defects, and ‘warning defects,’ i.e., inadequate warnings or
failures to warn.” (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d
987, 995 [281 Cal.Rptr. 528, 810 P.2d 549].)
• “Under the Restatement [Rest.3d Torts, Products Liability, § 2], a product is
defective if it: ‘(a) contains a manufacturing defect when the product departs
from its intended design even though all possible care was exercised in the
preparation and marketing of the product; [¶] (b) is defective in design when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product not reasonably safe; [¶] (c)
is defective because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the
provision of reasonable instructions or warnings by the seller or other distributor,
or a predecessor in the commercial chain of distribution, and the omission of the
instructions or warnings renders the product not reasonably safe.’ ” (Brady v.
Calsol, Inc. (2015) 241 Cal.App.4th 1212, 1218–1219 [194 Cal.Rptr.3d 243].)
• “A manufacturer is strictly liable in tort when an article he places on the market,
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CACI No. 1200 PRODUCTS LIABILITY
knowing that it is to be used without inspection for defects, proves to have a
defect that causes injury to a human being. . . . The purpose of such liability is
to insure that the costs of injuries resulting from defective products are borne by
the manufacturers that put such products on the market rather than by the injured
persons who are powerless to protect themselves.” (Greenman v. Yuba Power
Products, Inc. (1963) 59 Cal.2d 57, 62–63 [27 Cal.Rptr. 697, 377 P.2d 897].)
• “[S]trict products liability causes of action need not be pled in terms of classic
negligence elements (duty, breach, causation and damages).” (Elsheref v. Applied
Materials, Inc. (2014) 223 Cal.App.4th 451, 464 [167 Cal.Rptr.3d 257].)
• “[S]trict liability has never been, and is not now, absolute liability. As has been
repeatedly expressed, under strict liability the manufacturer does not thereby
become the insurer of the safety of the product’s user.” (Sanchez v. Hitachi Koki,
Co. (2013) 217 Cal.App.4th 948, 956 [158 Cal.Rptr.3d 907].)
• “Beyond manufacturers, anyone identifiable as ‘an integral part of the overall
producing and marketing enterprise’ is subject to strict liability.” (Arriaga v.
CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1534 [85
Cal.Rptr.3d 143].)
• “Generally, the imposition of strict liability hinges on the extent to which a party
was ‘responsible for placing products in the stream of commerce.’ When the
purchase of a product ‘is the primary objective or essence of the transaction,
strict liability applies even to those who are mere conduits in distributing the
product to the consumer.’ In contrast, the doctrine of strict liability is ordinarily
inapplicable to transactions ‘whose primary objective is obtaining services,’ and
to transactions in which the ‘service aspect predominates and any product sale is
merely incidental to the provision of the service.’ Thus, ‘[i]n a given transaction
involving both products and services, liability will often depend upon the
defendant’s role.’ ” (Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243
Cal.App.4th 249, 258 [196 Cal.Rptr.3d 594], internal citations omitted.)
• “[U]nder the stream-of-commerce approach to strict liability[,] no precise legal
relationship to the member of the enterprise causing the defect to be
manufactured or to the member most closely connected with the customer is
required before the courts will impose strict liability. It is the defendant’s
participatory connection, for his personal profit or other benefit, with the injury-
producing product and with the enterprise that created consumer demand for and
reliance upon the product (and not the defendant’s legal relationship (such as
agency) with the manufacturer or other entities involved in the manufacturing-
marketing system) which calls for imposition of strict liability.”
(Hernandezcueva, supra, 243 Cal.App.4th at pp. 257–258.)
• “ ‘[S]trict liability is not imposed even if the defendant is technically a “link in
the chain” in getting the product to the consumer market if the judicially
perceived policy considerations are not satisfied. Thus, a defendant will not be
held strictly liable unless doing so will enhance product safety, maximize
protection to the injured plaintiff, and apportion costs among the defendants.
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[Citations.]’ ” (Hernandezcueva, supra, 234 Cal.App.4th at p. 258.)
• “California cases have found that a defendant involved in the
marketing/distribution process may be held strictly liable ‘if three factors are
present: (1) the defendant received a direct financial benefit from its activities
and from the sale of the product; (2) the defendant’s role was integral to the
business enterprise such that the defendant’s conduct was a necessary factor in
bringing the product to the initial consumer market; and (3) the defendant had
control over, or a substantial ability to influence, the manufacturing or
distribution process. [Citation.]’ . . . ‘The application of strict liability in any
particular factual setting is determined largely by the policies that underlie the
doctrine.’ ” (Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 270 [220
Cal.Rptr.3d 185], internal citation omitted.)
• “The component parts doctrine provides that the manufacturer of a component
part is not liable for injuries caused by the finished product into which the
component has been incorporated unless the component itself was defective and
caused harm.” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 355 [135 Cal.Rptr.3d
288, 266 P.3d 987].)
• “The only exceptions to this rule [that a product manufacturer generally may not
be held strictly liable for harm caused by another manufacturer’s product] arise
when the defendant bears some direct responsibility for the harm, either because
the defendant’s own product contributed substantially to the harm, or because the
defendant participated substantially in creating a harmful combined use of the
products.” (O’Neil, supra, 53 Cal.4th at p. 362, internal citation omitted.)
• “[T]o hold a defendant strictly liable under a marketing/distribution theory, the
plaintiff must demonstrate that: ‘(1) the defendant received a direct financial
benefit from its activities and from the sale of the product; (2) the defendant’s
role was integral to the business enterprise such that the defendant’s conduct was
a necessary factor in bringing the product to the initial consumer market; and (3)
the defendant had control over, or a substantial ability to influence, the
manufacturing or distribution process.’ ” (Arriaga, supra, 167 Cal.App.4th at p.
1535.)
• “[T]he doctrine of strict liability may not be restricted on a theory of privity of
contract. Since the doctrine applies even where the manufacturer has attempted
to limit liability, they further make it clear that the doctrine may not be limited
on the theory that no representation of safety is made to the bystander. [¶¶] If
anything, bystanders should be entitled to greater protection than the consumer
or user where injury to bystanders from the defect is reasonably foreseeable.
Consumers and users, at least, have the opportunity to inspect for defects and to
limit their purchases to articles manufactured by reputable manufacturers and
sold by reputable retailers, whereas the bystander ordinarily has no such
opportunities. In short, the bystander is in greater need of protection from
defective products which are dangerous, and if any distinction should be made
between bystanders and users, it should be made, contrary to the position of
defendants, to extend greater liability in favor of the bystanders.” (Elmore v.
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American Motors Corp. (1969) 70 Cal.2d 578, 586 [75 Cal.Rptr. 652, 451 P.2d
84].)
• “Engineers who do not participate in bringing a product to market and simply
design a product are not subject to strict products liability.” (Romine v. Johnson
Controls, Inc. (2014) 224 Cal.App.4th 990, 1008 [169 Cal.Rptr.3d 208].)
• “As a provider of services rather than a seller of a product, the hospital is not
subject to strict liability for a defective product provided to the patient during
the course of his or her treatment.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 316 [213 Cal.Rptr.3d 82] [however, causes of action based in
negligence are not affected].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1591–1601
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1207, 2:1215 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.10
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.20 et seq.
(Matthew Bender)
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1201. Strict Liability—Manufacturing Defect—Essential Factual
Elements
[Name of plaintiff] claims that the [product] contained a manufacturing
defect. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That the [product] contained a manufacturing defect when it left
[name of defendant]’s possession;
3. That [name of plaintiff] was harmed; and
4. That the [product]’s defect was a substantial factor in causing
[name of plaintiff]’s harm.
New September 2003; Revised April 2009, December 2009, June 2011, May 2020
Directions for Use
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590] [risk-benefit design defect case]; Cronin v. J.B.E. Olson
Corp. (1972) 8 Cal.3d 121, 125–126 [104 Cal.Rptr. 433, 501 P.2d 1153] [product
misuse asserted as a defense to manufacturing defect]; see also CACI No. 1245,
Affırmative Defense—Product Misuse or Modification.) Product misuse is a complete
defense to strict products liability if the defendant proves that an unforeseeable
abuse or alteration of the product after it left the manufacturer’s hands was the sole
cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d
51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.) Misuse or
modification that was a substantial factor in, but not the sole cause of, plaintiff’s
harm may also be considered in determining the comparative fault of the plaintiff or
of third persons. See CACI No. 1207A, Strict Liability—Comparative Fault of
Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of Third
Person.
Sources and Authority
• “[T]he term defect as utilized in the strict liability context is neither self-defining
nor susceptible to a single definition applicable in all contexts.” (Johnson v.
United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192 Cal.Rptr.3d 158].)
• “A manufacturing defect occurs when an item is manufactured in a substandard
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condition.” (Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 792 [64
Cal.Rptr.3d 908].)
• “A product has a manufacturing defect if it differs from the manufacturer’s
intended result or from other ostensibly identical units of the same product line.
In other words, a product has a manufacturing defect if the product as
manufactured does not conform to the manufacturer’s design.” (Garrett v.
Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 190 [153 Cal.Rptr.3d
693].)
• “ ‘Regardless of the theory which liability is predicated upon . . . it is obvious
that to hold a producer, manufacturer, or seller liable for injury caused by a
particular product, there must first be proof that the defendant produced,
manufactured, sold, or was in some way responsible for the product . . . .’ ”
(Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874 [148 Cal.Rptr. 843],
internal citation omitted.)
• “[W]here a plaintiff alleges a product is defective, proof that the product has
malfunctioned is essential to establish liability for an injury caused by the
defect.” (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 855 [266 Cal.Rptr.
106], original italics.)
• “We think that a requirement that a plaintiff also prove that the defect made the
product ‘unreasonably dangerous’ places upon him a significantly increased
burden and represents a step backward in the area pioneered by this court.”
(Cronin, supra, 8 Cal.3d at pp. 134–135.)
• “[T]he policy underlying the doctrine of strict liability compels the conclusion
that recovery should not be limited to cases involving latent defects.” (Luque v.
McLean (1972) 8 Cal.3d 136, 145 [104 Cal.Rptr. 443, 501 P.2d 1163].)
• “A manufacturer is liable only when a defect in its product was a legal cause of
injury. A tort is a legal cause of injury only when it is a substantial factor in
producing the injury.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572
[34 Cal.Rptr.2d 607, 882 P.2d 298], internal citations omitted.)
• “[Plaintiff] argues whether the alleged defects in the cup were a cause of her
injuries is a question for the jury. ‘ “Ordinarily, proximate cause is a question of
fact which cannot be decided as a matter of law. . . . Nevertheless, where the
facts are such that the only reasonable conclusion is an absence of causation, the
question is one of law, not of fact.” ’ ” (Shih v. Starbucks Corp. (2020) 53
Cal.App.5th 1063, 1071 [267 Cal.Rptr.3d 919], internal citation omitted.)
• “[S]trict liability should not be imposed upon a manufacturer when injury results
from a use of its product that is not reasonably foreseeable.” (Cronin, supra, 8
Cal.3d at p. 126.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1591
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1215, 2:1216 (The Rutter Group)
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California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.11,
Ch. 7, Proof, § 7.06 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.30 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.140
(Matthew Bender)
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1202. Strict Liability—“Manufacturing Defect” Explained
A product contains a manufacturing defect if the product differs from
the manufacturer’s design or specifications or from other typical units of
the same product line.
New September 2003
Sources and Authority
• The Supreme Court has defined a manufacturing defect as follows: “In general, a
manufacturing or production defect is readily identifiable because a defective
product is one that differs from the manufacturer’s intended result or from other
ostensibly identical units of the same product line.” (Barker v. Lull Engineering
Co. (1978) 20 Cal.3d 413, 429 [143 Cal.Rptr. 225, 573 P.2d 443].)
• “[A] defective product is viewed as one which fails to match the quality of most
like products, and the manufacturer is then liable for injuries resulting from
deviations from the norm . . . .” (Jiminez v. Sears, Roebuck & Co. (1971) 4
Cal.3d 379, 383 [93 Cal.Rptr. 769, 482 P.2d 681].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1644 et seq.
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1203. Strict Liability—Design Defect—Consumer Expectation
Test—Essential Factual Elements
[Name of plaintiff] claims the [product]’s design was defective because the
[product] did not perform as safely as an ordinary consumer would have
expected it to perform. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That the [product] did not perform as safely as an ordinary
consumer would have expected it to perform when used or
misused in an intended or reasonably foreseeable way;
3. That [name of plaintiff] was harmed; and
4. That the [product]’s failure to perform safely was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2005, April 2009, December 2009, June
2011, January 2018, May 2020
Directions for Use
The consumer expectation test and the risk-benefit test for design defect are not
mutually exclusive, and depending on the facts and circumstances of the case, both
may be presented to the trier of fact in the same case. (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 554 [221 Cal.Rptr.3d 102].) If both tests are
asserted by the plaintiff, the burden-of-proof instructions must make it clear that the
two tests are alternatives. (Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d
1101, 1106–1107 [206 Cal.Rptr. 431].)
The court must make an initial determination as to whether the consumer
expectation test applies to the product. In some cases, the court may determine that
the product is one to which the test may, but not necessarily does, apply, leaving the
determination to the jury. (See Saller v. Crown Cork & Seal Co., Inc. (2010) 187
Cal.App.4th 1220, 1233–1234 [115 Cal.Rptr.3d 151].) In such a case, modify the
instruction to advise the jury that it must first determine whether the product is one
about which an ordinary consumer can form reasonable minimum safety
expectations.
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590] [risk-benefit case]; see also CACI No. 1245, Affırmative
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Defense—Product Misuse or Modification.) Product misuse is a complete defense to
strict products liability if the defendant proves that an unforeseeable abuse or
alteration of the product after it left the manufacturer’s hands was the sole cause of
the plaintiff’s injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.) Misuse or modification that
was a substantial factor in, but not the sole cause of, plaintiff’s harm may also be
considered in determining the comparative fault of the plaintiff or of third persons.
See CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff, and CACI
No. 1207B, Strict Liability—Comparative Fault of Third Person.
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-defining
nor susceptible to a single definition applicable in all contexts.” (Johnson v.
United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192 Cal.Rptr.3d 158].)
• “[A] product is defective in design either (1) if the product has failed to perform
as safely as an ordinary consumer would expect when used in an intended or
reasonably foreseeable manner, or (2) if, in light of the relevant factors . . . , the
benefits of the challenged design do not outweigh the risk of danger inherent in
such design.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418 [143
Cal.Rptr. 225, 573 P.2d 443].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1303 [144
Cal.Rptr.3d 326].)
• “In order to establish a design defect under the consumer expectation test when
a ‘ “ ‘product is one within the common experience of ordinary consumers,’ ” ’
the plaintiff must ‘ “ ‘provide[] evidence concerning (1) his or her use of the
product; (2) the circumstances surrounding the injury; and (3) the objective
features of the product which are relevant to an evaluation of its safety.’
[Citation.] The test is that of a hypothetical reasonable consumer, not the
expectation of the particular plaintiff in the case.” ’ ” (Trejo v. Johnson &
Johnson (2017) 13 Cal.App.5th 110, 157 [220 Cal.Rptr.3d 127].)
• “The rationale of the consumer expectations test is that ‘[t]he purposes,
behaviors, and dangers of certain products are commonly understood by those
who ordinarily use them.’ Therefore, in some cases, ordinary knowledge of the
product’s characteristics may permit an inference that the product did not
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perform as safely as it should. ‘If the facts permit such a conclusion, and if the
failure resulted from the product’s design, a finding of defect is warranted
without any further proof,’ and the manufacturer may not defend by presenting
expert evidence of a risk/benefit analysis. . . . Nonetheless, the inherent
complexity of the product itself is not controlling on the issue of whether the
consumer expectations test applies; a complex product ‘may perform so unsafely
that the defect is apparent to the common reason, experience, and understanding
of its ordinary consumers.’ ” (Saller, supra, 187 Cal.App.4th at p. 1232, original
italics, internal citations omitted.)
• “The critical question, in assessing the applicability of the consumer expectation
test, is not whether the product, when considered in isolation, is beyond the
ordinary knowledge of the consumer, but whether the product, in the context of
the facts and circumstances of its failure, is one about which the ordinary
consumers can form minimum safety expectations.” (Pannu v. Land Rover North
America, Inc. (2011) 191 Cal.App.4th 1298, 1311–1312 [120 Cal.Rptr.3d 605].)
• “Whether the jury should be instructed on either the consumer expectations test
or the risk/benefit test depends upon the particular facts of the case. In a jury
case, the trial court must initially determine as a question of foundation, within
the context of the facts and circumstances of the particular case, whether the
product is one about which the ordinary consumer can form reasonable
minimum safety expectations. ‘If the court concludes it is not, no consumer
expectation instruction should be given. . . . If, on the other hand, the trial court
finds there is sufficient evidence to support a finding that the ordinary consumer
can form reasonable minimum safety expectations, the court should instruct the
jury, consistent with Evidence Code section 403, subdivision (c), to determine
whether the consumer expectation test applies to the product at issue in the
circumstances of the case [or] to disregard the evidence about consumer
expectations unless the jury finds that the test is applicable. If it finds the test
applicable, the jury then must decide whether the product failed to perform as
safely as an ordinary consumer would expect when the product is used in an
intended or reasonably foreseeable manner.’ ” (Saller, supra, 187 Cal.App.4th at
pp. 1233–1234, internal citations omitted.)
• “[The] dual standard for design defect assures an injured plaintiff protection
from products that either fall below ordinary consumer expectations as to safety
or that, on balance, are not as safely designed as they should be.” (Barker, supra,
20 Cal.3d at p. 418.)
• The consumer expectation test “acknowledges the relationship between strict tort
liability for a defective product and the common law doctrine of warranty, which
holds that a product’s presence on the market includes an implied representation
‘that it [will] safely do the jobs for which it was built.’ ” (Soule, supra, 8 Cal.4th
at p. 562, internal citations omitted.)
• “[T]he jury may not be left free to find a violation of ordinary consumer
expectations whenever it chooses. Unless the facts actually permit an inference
that the product’s performance did not meet the minimum safety expectations of
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its ordinary users, the jury must engage in the balancing of risks and benefits
required by the second prong of Barker. Accordingly, as Barker indicated,
instructions are misleading and incorrect if they allow a jury to avoid this risk-
benefit analysis in a case where it is required.” (Soule, supra, 8 Cal.4th at p.
568.)
• “[T]he consumer expectation test does not apply merely because the consumer
states that he or she did not expect to be injured by the product.” (Trejo, supra,
13 Cal.App.5th at p. 159.)
• “[T]he consumer expectation test is reserved for cases in which the everyday
experience of the product’s users permits a conclusion that the product’s design
violated minimum safety assumptions, and is thus defective regardless of expert
opinion about the merits of the design.” (Soule, supra, 8 Cal.4th at p. 567,
original italics.)
• “[A] product’s users include anyone whose injury was ‘reasonably foreseeable.’ ”
(Demara, supra, 13 Cal.App.5th at p. 559.)
• “If the facts permit an inference that the product at issue is one about which
consumers may form minimum safety assumptions in the context of a particular
accident, then it is enough for a plaintiff, proceeding under the consumer
expectation test, to show the circumstances of the accident and ‘the objective
features of the product which are relevant to an evaluation of its safety’
[citation], leaving it to the fact finder to ‘employ “[its] own sense of whether the
product meets ordinary expectations as to its safety under the circumstances
presented by the evidence.” ’ [Citations.] Expert testimony as to what consumers
ordinarily ‘expect’ is generally improper.” (Chavez, supra, 207 Cal.App.4th at p.
1303.)
• “That causation for a plaintiff’s injuries was proved through expert testimony
does not mean that an ordinary consumer would be unable to form assumptions
about the product’s safety. Accordingly, the trial court properly instructed the
jury on the consumer expectations test.” (Romine v. Johnson Controls, Inc.
(2014) 224 Cal.App.4th 990, 1004 [169 Cal.Rptr.3d 208], internal citations
omitted.)
• “Generally, ‘ “[e]xpert witnesses may not be used to demonstrate what an
ordinary consumer would or should expect,” because the idea behind the
consumer expectations test is that the lay jurors have common knowledge about
the product’s basic safety.’ However, ‘where the product is in specialized use
with a limited group of consumers[,] . . . ‘. . . expert testimony on the limited
subject of what the product’s actual consumers do expect may be proper” ’
because ‘ “the expectations of the product’s limited group of ordinary consumers
are beyond the lay experience common to all jurors.” ’ ” (Verrazono v. Gehl Co.
(2020) 50 Cal.App.5th 636, 646–647 [263 Cal.Rptr.3d 663], original italics,
internal citation omitted.)
• “In determining whether a product’s safety satisfies [the consumer expectation
test], the jury considers the expectations of a hypothetical reasonable consumer,
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rather than those of the particular plaintiff in the case.” (Campbell v. General
Motors Corp. (1982) 32 Cal.3d 112, 126, fn. 6 [184 Cal.Rptr. 891, 649 P.2d
224].)
• “[E]vidence as to what the scientific community knew about the dangers . . .
and when they knew it is not relevant to show what the ordinary consumer of
[defendant]’s product reasonably expected in terms of safety at the time of
[plaintiff]’s exposure. It is the knowledge and reasonable expectations of the
consumer, not the scientific community, that is relevant under the consumer
expectations test.” (Morton v. Owens-Corning Fiberglas Corp. (1995) 33
Cal.App.4th 1529, 1536 [40 Cal.Rptr.2d 22].)
• “Where liability depends on the proof of a design defect, no practical difference
exists between negligence and strict liability; the claims merge.” (Lambert v.
General Motors (1998) 67 Cal.App.4th 1179, 1185 [79 Cal.Rptr.2d 657].)
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
abuse. . . . [T]he extent to which designers and manufacturers of dangerous
machinery are required to anticipate safety neglect presents an issue of fact.’ ”
(Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1235 [63
Cal.Rptr.2d 422].)
• “[T]he plaintiff bears an initial burden of making ‘a prima facie showing that the
injury was proximately caused by the product’s design.’ This showing requires
evidence that the plaintiff was injured while using the product in an intended or
reasonably foreseeable manner and that the plaintiff’s ability to avoid injury was
frustrated by the absence of a safety device, or by the nature of the product’s
design. If this prima facie burden is met, the burden of proof shifts to the
defendant to prove, in light of the relevant factors, that the product is not
defective. Importantly, the plaintiff’s prima facie burden of producing evidence
that injury occurred while the product was being used in an intended or
reasonably foreseeable manner must be distinguished from the ultimate burden
of proof that rests with the defendant to establish that its product was not
defective because the plaintiff’s injury resulted from a misuse of the product.”
(Perez, supra, 188 Cal.App.4th at p. 678, original italics, internal citations
omitted.)
• “The use of asbestos insulation is a product that is within the understanding of
ordinary lay consumers.” (Saller, supra, 187 Cal.App.4th at p. 1236.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1615–1631
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1220–2:1222 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.11,
Ch. 7, Proof, § 7.02 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
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(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.116
(Matthew Bender)
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1204. Strict Liability—Design Defect—Risk-Benefit Test—Essential
Factual Elements—Shifting Burden of Proof
[Name of plaintiff] claims that the [product]’s design caused harm to
[name of plaintiff]. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That [name of plaintiff] was harmed; and
3. That the [product]’s design was a substantial factor in causing
harm to [name of plaintiff].
If [name of plaintiff] has proved these three facts, then your decision on
this claim must be for [name of plaintiff] unless [name of defendant]
proves that the benefits of the [product]’s design outweigh the risks of the
design. In deciding whether the benefits outweigh the risks, you should
consider the following:
(a) The gravity of the potential harm resulting from the use of the
[product];
(b) The likelihood that this harm would occur;
(c) The feasibility of an alternative safer design at the time of
manufacture;
(d) The cost of an alternative design; [and]
(e) The disadvantages of an alternative design; [and]
[(f) [Other relevant factor(s)].]
New September 2003; Revised February 2007, April 2009, December 2009,
December 2010, June 2011, January 2018, May 2019, May 2020
Directions for Use
The consumer expectation test and the risk-benefit test for design defect are not
mutually exclusive, and depending on the facts and circumstances of the case, both
may be presented to the trier of fact in the same case. (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 554 [221 Cal.Rptr.3d 102].) If the plaintiff asserts
both tests, the instructions must make it clear that the two tests are alternatives.
(Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101, 1106–1107 [206
Cal.Rptr. 431].) Risk-benefit weighing is not a formal part of, nor may it serve as a
defense to, the consumer expectations test. (Chavez v. Glock, Inc. (2012) 207
Cal.App.4th 1283, 1303 [144 Cal.Rptr.3d 326].)
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To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590]; see also CACI No. 1245, Affırmative Defense—Product
Misuse or Modification.) Product misuse is a complete defense to strict products
liability if the defendant proves that an unforeseeable abuse or alteration of the
product after it left the manufacturer’s hands was the sole cause of the plaintiff’s
injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr.
596, 583 P.2d 121]; see CACI No. 1245.) Misuse or modification that was a
substantial factor in, but not the sole cause of, plaintiff’s harm may also be
considered in determining the comparative fault of the plaintiff or of third persons.
See CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff, and CACI
No. 1207B, Strict Liability—Comparative Fault of Third Person.
If evidence of industry custom and practice has been admitted for a limited purpose,
at the timely request of a party opposing this evidence, the jury must be given a
limiting instruction on how this evidence may and may not be considered under the
risk-benefit test. (See Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30, 38 [237
Cal.Rptr.3d 205, 424 P.3d 290].)
Aesthetics might be an additional factor to be considered in an appropriate case in
which there is evidence that appearance is important in the marketability of the
product. (See Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181
Cal.App.4th 1108, 1131 [105 Cal.Rptr.3d 485].)
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-defining
nor susceptible to a single definition applicable in all contexts.” (Johnson v.
United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192 Cal.Rptr.3d 158].)
• The risk-benefit test requires the plaintiff to first ‘demonstrate[] that the product’s
design proximately caused his injury.’ If the plaintiff makes this initial showing,
the defendant must then ‘establish, in light of the relevant factors, that, on
balance, the benefits of the challenged design outweigh the risk of danger
inherent in such design.’ ” (Kim, supra, 6 Cal.5th at p. 30, internal citation
omitted.)
• “Appellants are therefore correct in asserting that it was not their burden to show
that the risks involved in the loader’s design—the lack of mechanical safety
devices, or of a warning—outweighed the benefits of these aspects of its designs.
The trial court’s instruction to the jury, which quite likely would have been
understood to place this burden on appellants, was therefore an error.” (Lunghi v.
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Clark Equipment Co., Inc. (1984) 153 Cal.App.3d 485, 497–498 [200 Cal.Rptr.
387], internal citations omitted.)
• “[U]nder the risk/benefit test, the plaintiff may establish the product is defective
by showing that its design proximately caused his injury and the defendant then
fails to establish that on balance the benefits of the challenged design outweigh
the risk of danger inherent in such design. In such case, the jury must evaluate
the product’s design by considering the gravity of the danger posed by the
design, the likelihood such danger would occur, the feasibility of a safer
alternative design, the financial cost of an improved design, and the adverse
consequences to the consumer resulting from an alternative design. ‘In such
cases, the jury must consider the manufacturer’s evidence of competing design
considerations . . . , and the issue of design defect cannot fairly be resolved by
standardless reference to the “expectations” of an “ordinary consumer.” ’ ”
(Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233 [115
Cal.Rptr.3d 151], internal citations omitted.)
• “[T]he defendant’s burden is one ‘affecting the burden of proof, rather than
simply the burden of producing evidence.’ ” (Moreno v. Fey Manufacturing
Corp. (1983) 149 Cal.App.3d 23, 27 [196 Cal.Rptr. 487].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez, supra, 207 Cal.App.4th at p. 1303.)
• “Under Barker, in short, the plaintiff bears an initial burden of making ‘a prima
facie showing that the injury was proximately caused by the product’s design.’
This showing requires evidence that the plaintiff was injured while using the
product in an intended or reasonably foreseeable manner and that the plaintiff’s
ability to avoid injury was frustrated by the absence of a safety device, or by the
nature of the product’s design. If this prima facie burden is met, the burden of
proof shifts to the defendant to prove, in light of the relevant factors, that the
product is not defective. Importantly, the plaintiff’s prima facie burden of
producing evidence that injury occurred while the product was being used in an
intended or reasonably foreseeable manner must be distinguished from the
ultimate burden of proof that rests with the defendant to establish that its product
was not defective because the plaintiff’s injury resulted from a misuse of the
product.” (Perez, supra, 188 Cal.App.4th at p. 678, original italics, internal
citations omitted.)
• “ ‘[I]n evaluating the adequacy of a product’s design pursuant to [the risk-
benefit] standard, a jury may consider, among other relevant factors, the gravity
of the danger posed by the challenged design, the likelihood that such danger
would occur, the mechanical feasibility of a safer alternative design, the financial
cost of an improved design, and the adverse consequences to the product and to
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the consumer that would result from an alternative design.’ ” (Gonzalez v.
Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 786–787 [64 Cal.Rptr.3d 908],
internal citations omitted.)
• “[E]xpert evidence about compliance with industry standards can be considered
on the issue of defective design, in light of all other relevant circumstances, even
if such compliance is not a complete defense. An action on a design defect
theory can be prosecuted and defended through expert testimony that is
addressed to the elements of such a claim, including risk-benefit considerations.”
(Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 426
[136 Cal.Rptr.3d 739].)
• “We stress that while industry custom and practice evidence is not categorically
inadmissible, neither is it categorically admissible; its admissibility will depend
on application of the ordinary rules of evidence in the circumstances of the
case. . . . First, the party seeking admission of such evidence must establish its
relevance to at least one of the elements of the risk-benefit test, either causation
or the Barker factors. The evidence is relevant to the Barker inquiry if it sheds
light on whether, objectively speaking, the product was designed as safely as it
should have been, given ‘the complexity of, and trade-offs implicit in, the design
process.’ Whether the evidence serves this purpose depends on whether, under
the circumstances of the case, it is reasonable to conclude that other
manufacturers’ choices do, as the Court of Appeal put it, ‘reflect legitimate,
independent research and practical experience regarding the appropriate balance
of product safety, cost, and functionality.’ If the proponent of the evidence
establishes a sufficient basis for drawing such a conclusion, the evidence is
admissible, even though one side or the other may argue it is entitled to little
weight because industry participants have weighed the relevant considerations
incorrectly. The evidence may not, however, be introduced simply for the
purpose of showing the manufacturer was acting no worse than its competitors.”
(Kim, supra, 6 Cal.5th at p 37, internal citations omitted.)
• “[I]f the party opposing admission of this evidence makes a timely request, the
trial court must issue a jury instruction that explains how this evidence may and
may not be considered under the risk-benefit test.” (Kim, supra, 6 Cal.5th at p.
38.)
• “Plaintiffs contend aesthetics is not a proper consideration in the risk-benefit
analysis, and the trial court’s ruling to the contrary was an ‘[e]rror in law.’ We
disagree. In our view, much of the perceived benefit of a car lies in its
appearance. A car is not a strictly utilitarian product. We believe that a jury
properly may consider aesthetics in balancing the benefits of a challenged design
against the risk of danger inherent in the design. Although consideration of the
disadvantages of an alternative design (CACI No. 1204, factor (e)) would
encompass any impact on aesthetics, we conclude that there was no error in the
trial court’s approval of the modification listing aesthetics as a relevant factor.”
(Bell, supra, 181 Cal.App.4th at p. 1131, internal citations omitted.)
• “Taken together, section 2, subdivision (b), and section 5 of the Restatement
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indicate that a component part manufacturer may be held liable for a defect in
the component. When viewed in its entirety, the Restatement does not support
[defendant]’s argument that ‘[o]nly if the component part analysis establishes
sufficient control over the design of the alleged defect should the component
manufacturer be held to the standard of the risk-benefit test.’ Instead, the test
considering foreseeable risks of harm and alternative designs is applied to the
component part manufacturer when the alleged defect is in the component.”
(Gonzalez, supra, 154 Cal.App.4th at pp. 789–790.)
• “Where liability depends on the proof of a design defect, no practical difference
exists between negligence and strict liability; the claims merge.” (Lambert v.
General Motors (1998) 67 Cal.App.4th 1179, 1185 [79 Cal.Rptr.2d 657].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1615–1631
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1223–2:1224 (The Rutter Group)
California Products Liability Actions, Ch. 7, Proof, § 7.02 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, §§ 190.110,
190.118–190.122 (Matthew Bender)
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1205. Strict Liability—Failure to Warn—Essential Factual Elements
[Name of plaintiff] claims that the [product] lacked sufficient [instructions]
[or] [warning of potential [risks/side effects/allergic reactions]]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That the [product] had potential [risks/side effects/allergic
reactions] that were [known/ [or] knowable in light of the
[scientific/ [and] medical] knowledge that was generally accepted
in the scientific community] at the time of
[manufacture/distribution/sale];
3. That the potential [risks/side effects/allergic reactions] presented a
substantial danger when the [product] is used or misused in an
intended or reasonably foreseeable way;
4. That ordinary consumers would not have recognized the potential
[risks/side effects/allergic reactions];
5. That [name of defendant] failed to adequately warn [or instruct] of
the potential [risks/side effects/allergic reactions];
6. That [name of plaintiff] was harmed; and
7. That the lack of sufficient [instructions] [or] [warnings] was a
substantial factor in causing [name of plaintiff]’s harm.
[The warning must be given to the prescribing physician and must
include the potential risks, side effects, or allergic reactions that may
follow the foreseeable use of the product. [Name of defendant] had a
continuing duty to warn physicians as long as the product was in use.]
New September 2003; Revised April 2009, December 2009, June 2011, December
2011, May 2020
Directions for Use
With regard to element 2, it has been often stated in the case law that a
manufacturer is liable for failure to warn of a risk that is “knowable in light of
generally recognized and prevailing best scientific and medical knowledge
available.” (See, e.g., Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d
987, 1002 [281 Cal.Rptr. 528, 810 P.2d 549]; Carlin v. Superior Court (1996) 13
Cal.4th 1104, 1112 [56 Cal.Rptr.2d 162, 920 P.2d 1347]; Saller v. Crown Cork &
Seal Company (2010) 187 Cal.App.4th 1220, 1239 [115 Cal.Rptr.3d 151]; Rosa v.
City of Seaside (N.D. Cal. 2009) 675 F.Supp.2d 1006, 1012.) The advisory
committee believes that this standard is captured by the phrase “generally accepted
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PRODUCTS LIABILITY CACI No. 1205
in the scientific community.” A risk may be “generally recognized” as a view
(knowledge) advanced by one body of scientific thought and experiment, but it may
not be the “prevailing” or “best” scientific view; that is, it may be a minority view.
The committee believes that when a risk is (1) generally recognized (2) as
prevailing in the relevant scientific community, and (3) represents the best
scholarship available, it is sufficient to say that the risk is knowable in light of “the
generally accepted” scientific knowledge.
The last bracketed paragraph should be read only in prescription product cases: In
the case of prescription drugs and implants, the physician stands in the shoes of the
ordinary user because it is through the physician that a patient learns of the
properties and proper use of the drug or implant. Thus, the duty to warn in these
cases runs to the physician, not the patient. (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App 5th 276, 319 [213 Cal.Rptr.3d 82], original italics.)
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590] [risk-benefit design defect case].) See also CACI No.
1245, Affırmative Defense—Product Misuse or Modification. Product misuse is a
complete defense to strict products liability if the defendant proves that an
unforeseeable abuse or alteration of the product after it left the manufacturer’s hands
was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co. (1978)
22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.) Misuse or
modification that was a substantial factor in, but not the sole cause of, plaintiff’s
harm may also be considered in determining the comparative fault of the plaintiff or
of third persons. See CACI No. 1207A, Strict Liability—Comparative Fault of
Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of Third
Person.
Sources and Authority
• “Our law recognizes that even ‘ “a product flawlessly designed and produced
may nevertheless possess such risks to the user without a suitable warning that it
becomes ‘defective’ simply by the absence of a warning.” . . .’ Thus,
manufacturers have a duty to warn consumers about the hazards inherent in their
products. The purpose of requiring adequate warnings is to inform consumers
about a product’s hazards and faults of which they are unaware, so that the
consumer may then either refrain from using the product altogether or avoid the
danger by careful use.” (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171
Cal.App.4th 564, 577 [90 Cal.Rptr.3d 414], internal citations and footnote
omitted.)
• “Negligence and strict products liability are separate and distinct bases for
liability that do not automatically collapse into each other because the plaintiff
might allege both when a product warning contributes to her injury.” (Conte v.
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Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [85 Cal.Rptr.3d 299].)
• “The ‘known or knowable’ standard arguably derives from negligence principles,
and failure to warn claims are generally ‘ “rooted in negligence” to a greater
extent than’ manufacturing or design defect claims. Unlike those other defects, a
‘ “warning defect” relates to a failure extraneous to the product itself’ and can
only be assessed by examining the manufacturer’s conduct. These principles
notwithstanding, California law recognizes separate failure to warn claims under
both strict liability and negligence theories. In general, a product seller will be
strictly liable for failure to warn if a warning was feasible and the absence of a
warning caused the plaintiff’s injury. Reasonableness of the seller’s failure to
warn is immaterial in the strict liability context. Conversely, to prevail on a
claim for negligent failure to warn, the plaintiff must prove that the seller’s
conduct fell below the standard of care. If a prudent seller would have acted
reasonably in not giving a warning, the seller will not have been negligent.”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181 [202 Cal.Rptr.3d
460, 370 P.3d 1022], original italics, footnote and internal citations omitted.)
• “It is true that the two types of failure to warn claims are not necessarily
exclusive: ‘No valid reason appears to require a plaintiff to elect whether to
proceed on the theory of strict liability in tort or on the theory of
negligence. . . . [¶] Nor does it appear that instructions on the two theories will
be confusing to the jury. There is nothing inconsistent in instructions on the two
theories and to a large extent the two theories parallel and supplement each
other.’ Despite the often significant overlap between the theories of negligence
and strict liability based on a product defect, a plaintiff is entitled to instructions
on both theories if both are supported by the evidence.” (Oxford v. Foster
Wheeler LLC (2009) 177 Cal.App.4th 700, 717 [99 Cal.Rptr.3d 418].)
• “The actual knowledge of the individual manufacturer, even if reasonably
prudent, is not the issue. We view the standard to require that the manufacturer
is held to the knowledge and skill of an expert in the field; it is obliged to keep
abreast of any scientific discoveries and is presumed to know the results of all
such advances.” (Carlin, supra, 13 Cal.4th at p. 1113, fn. 3.)
• “[A] defendant in a strict products liability action based upon an alleged failure
to warn of a risk of harm may present evidence of the state of the art, i.e.,
evidence that the particular risk was neither known nor knowable by the
application of scientific knowledge available at the time of manufacture and/or
distribution.” (Anderson, supra, 53 Cal.3d at p. 1004.)
• “[T]here can be no liability for failure to warn where the instructions or
warnings sufficiently alert the user to the possibility of danger.” (Aguayo v.
Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1042 [228 Cal.Rptr.
768], internal citation omitted.)
• “A duty to warn or disclose danger arises when an article is or should be known
to be dangerous for its intended use, either inherently or because of defects.”
(DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d
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336, 343 [195 Cal.Rptr. 867], internal citation omitted.)
• “California is well settled into the majority view that knowledge, actual or
constructive, is a requisite for strict liability for failure to warn . . . .”
(Anderson, supra, 53 Cal.3d at p. 1000.)
• “[T]he duty to warn is not conditioned upon [actual or constructive] knowledge
[of a danger] where the defectiveness of a product depends on the adequacy of
instructions furnished by the supplier which are essential to the assembly and
use of its product.” (Midgley v. S. S. Kresge Co. (1976) 55 Cal.App.3d 67, 74
[127 Cal.Rptr. 217].)
• Under Cronin, plaintiffs in cases involving manufacturing and design defects do
not have to prove that a defect made a product unreasonably dangerous;
however, that case “did not preclude weighing the degree of dangerousness in
the failure to warn cases.” (Cavers v. Cushman Motor Sales, Inc. (1979) 95
Cal.App.3d 338, 343 [157 Cal.Rptr. 142].)
• “Two types of warnings may be given. If the product’s dangers may be avoided
or mitigated by proper use of the product, ‘the manufacturer may be required
adequately to instruct the consumer as to how the product should be used.’ If the
risks involved in the use of the product are unavoidable, as in the case of
potential side effects of prescription drugs, the supplier must give an adequate
warning to enable the potential user to make an informed choice whether to use
the product or abstain.” (Buckner v. Milwaukee Electric Tool Corp. (2013) 222
Cal.App.4th 522, 532 [166 Cal.Rptr.3d 202], internal citation omitted.)
• “[T]he warning requirement is not limited to unreasonably or unavoidably
dangerous products. Rather, directions or warnings are in order where reasonably
required to prevent the use of a product from becoming unreasonably dangerous.
It is the lack of such a warning which renders a product unreasonably dangerous
and therefore defective.” (Gonzales v. Carmenita Ford Truck Sales, Inc. (1987)
192 Cal.App.3d 1143, 1151 [238 Cal.Rptr. 18], original italics.)
• “In most cases, . . . the adequacy of a warning is a question of fact for the
jury.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1320 [273 Cal.Rptr.
214].)
• “There is no duty to warn of known risks or obvious dangers.” (Chavez v. Glock,
Inc. (2012) 207 Cal.App.4th 1283, 1304 [144 Cal.Rptr.3d 326].)
• “In the context of prescription drugs, a manufacturer’s duty is to warn physicians
about the risks known or reasonably known to the manufacturer. The
manufacturer has no duty to warn of risks that are ‘merely speculative or
conjectural, or so remote and insignificant as to be negligible.’ ” (T.H. v.
Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 164 [226 Cal.Rptr.3d 336,
407 P.3d 18], internal citations omitted.)
• “[A] pharmaceutical manufacturer may not be required to provide warning of a
risk known to the medical community.” (Carlin, supra, 13 Cal.4th at p. 1116.)
• “To prevail on her failure-to-warn claims, [plaintiff] ‘ “will ultimately have to
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CACI No. 1205 PRODUCTS LIABILITY
prove that if [defendant] had properly reported the adverse events to the FDA as
required under federal law, that information would have reached [her] doctors in
time to prevent [her] injuries.’ [Citation.]” But at this stage, [plaintiff] need only
allege ‘ “a causal connection” ’ between [defendant’s] failure to report and her
injuries.” (Mize v. Mentor Worldwide LLC (2020) 51 Cal.App.5th 850, 863–864
[265 Cal.Rptr.3d 468], internal citation omitted.)
• “To be liable in California, even under a strict liability theory, the plaintiff must
prove that the defendant’s failure to warn was a substantial factor in causing his
or her injury. (CACI No. 1205.) The natural corollary to this requirement is that
a defendant is not liable to a plaintiff if the injury would have occurred even if
the defendant had issued adequate warnings.” (Huitt v. Southern California Gas
Co. (2010) 188 Cal.App.4th 1586, 1604 [116 Cal.Rptr.3d 453].)
• “When a manufacturer or distributor has no effective way to convey a product
warning to the ultimate consumer, the manufacturer should be permitted to rely
on downstream suppliers to provide the warning. ‘Modern life would be
intolerable unless one were permitted to rely to a certain extent on others doing
what they normally do, particularly if it is their duty to do so.’ ” (Persons v.
Salomon N. Am. (1990) 217 Cal.App.3d 168, 178 [265 Cal.Rptr. 773], internal
citation omitted.)
• “[A] manufacturer’s liability to the ultimate consumer may be extinguished by
‘intervening cause’ where the manufacturer either provides adequate warnings to
a middleman or the middleman alters the product before passing it to the final
consumer.” (Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651, 661 [74
Cal.Rptr.3d 359].)
• “ ‘A manufacturer’s duty to warn is a continuous duty which lasts as long as the
product is in use.’ [¶] . . . [T]he manufacturer must continue to provide
physicians with warnings, at least so long as it is manufacturing and distributing
the product.” (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467,
1482 [81 Cal.Rptr.2d 252].)
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
abuse. . . . [T]he extent to which designers and manufacturers of dangerous
machinery are required to anticipate safety neglect presents an issue of fact. . . .
[A] manufacturer owes a foreseeable user of its product a duty to warn of risks
of using the product.’ ” (Wright v. Stang Manufacturing Co. (1997) 54
Cal.App.4th 1218, 1235 [63 Cal.Rptr.2d 422].)
• “California law does not impose a duty to warn about dangers arising entirely
from another manufacturer’s product, even if it is foreseeable that the products
will be used together.” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 361 [135
Cal.Rptr.3d 288, 266 P.3d 987].)
• “The O’Neil [supra] court concluded that Tellez-Cordova [Tellez-Cordova v.
Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577] marked an
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PRODUCTS LIABILITY CACI No. 1205
exception to the general rule barring imposition of strict liability on a
manufacturer for harm caused by another manufacturer’s product. That exception
is applicable when ‘the defendant’s own product contributed substantially to the
harm . . . .’ In expounding the exception, the court rejected the notion that
imposition of strict liability on manufacturers is appropriate when it is merely
foreseeable that their products will be used in conjunction with products made or
sold by others. The O’Neil court further explained: ‘Recognizing a duty to warn
was appropriate in Tellez-Cordova because there the defendant’s product was
intended to be used with another product for the very activity that created a
hazardous situation. Where the intended use of a product inevitably creates a
hazardous situation, it is reasonable to expect the manufacturer to give warnings.
Conversely, where the hazard arises entirely from another product, and the
defendant’s product does not create or contribute to that hazard, liability is not
appropriate.’ ” (Sherman v. Hennessy Industries, Inc. (2015) 237 Cal.App.4th
1133, 1142 [188 Cal.Rptr.3d 769], original italics, internal citations omitted; see
also Hetzel v. Hennessy Industries, Inc. (2016) 247 Cal.App.4th 521, 529 [202
Cal.Rptr.3d 310] [O’Neil does not require evidence of exclusive use, but rather
requires a showing of inevitable use]; Rondon v. Hennessy Industries, Inc. (2016)
247 Cal.App.4th 1367, 1379 [202 Cal.Rptr.3d 773] [same].)
• “[L]ike a manufacturer, a raw material supplier has a duty to warn about product
risks that are known or knowable in light of available medical and scientific
knowledge.” (Webb, supra, 63 Cal.4th at p. 181.)
• “[T]he duty of a component manufacturer or supplier to warn about the hazards
of its products is not unlimited. . . . ‘Making suppliers of inherently safe raw
materials and component parts pay for the mistakes of the finished product
manufacturer would not only be unfair, but it also would impose and intolerable
burden on the business world . . . . Suppliers of versatile materials like chains,
valves, sand gravel, etc., cannot be expected to become experts in the infinite
number of finished products that might conceivably incorporate their multi-use
raw materials or components.’ Thus, cases have subjected claims made against
component suppliers to two related doctrines, the ‘raw material supplier defense’
and ‘the bulk sales/sophisticated purchaser rule.’ Although the doctrines are
distinct, their application oftentimes overlaps and together they present factors
which should be carefully considered in evaluating the liability of component
suppliers. Those factors include whether the raw materials or components are
inherently dangerous, whether the materials are significantly altered before
integration into an end product, whether the supplier was involved in designing
the end-product and whether the manufacturer of the end product was in a
position to discover and disclose hazards.” (Artiglio v. General Electric Co.
(1998) 61 Cal.App.4th 830, 837 [71 Cal.Rptr.2d 817].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1631–1643
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
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for Defective Products, ¶¶ 2:1275–2:1276 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.11[4]; Ch. 7, Proof, § 7.05 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.164 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability,
§§ 190.193–190.194 (Matthew Bender)
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1206. Strict Liability—Failure to Warn—Products Containing
Allergens (Not Prescription Drugs)—Essential Factual Elements
[Name of plaintiff] claims that the [product] was defective because it
lacked sufficient warnings of potential allergic reactions. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That a substantial number of people are allergic to an ingredient
in the [product];
3. That the danger of the ingredient is not generally known, or, if
known, the ingredient is one that a consumer would not
reasonably expect to find in the [product];
4. That [name of defendant] knew or, by the use of scientific
knowledge available at the time, should have known of the
ingredient’s danger and presence;
5. That [name of defendant] failed to provide sufficient warnings
concerning the ingredient’s danger or presence;
6. That [name of plaintiff] was harmed; and
7. That the lack of sufficient warnings was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
A fuller definition of “scientific knowledge” may be appropriate in certain cases.
Such a definition would advise that the defendant did not adequately warn of a
potential risk, side effect, or allergic reaction that was “knowable in light of the
generally recognized and prevailing best scientific and medical knowledge
available,” (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112 [56 Cal.Rptr.2d
162, 920 P.2d 1347]), and knowable “ ‘by the application of reasonable, developed
human skill and foresight.’ ” (Livingston v. Marie Callenders Inc. (1999) 72
Cal.App.4th 830, 839 [85 Cal.Rptr.2d 528].)
Sources and Authority
• This instruction is based on the holding in Livingston v. Marie Callenders, Inc.
(1999) 72 Cal.App.4th 830, 838–839 [85 Cal.Rptr.2d 528], adopting Restatement
Second of Torts, section 402A, comment j, and Restatement Third of Torts:
Products Liability, section 2, comment k, in cases involving allergic reactions.
• “California has adopted the Restatement Second of Torts, section 402A,
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CACI No. 1206 PRODUCTS LIABILITY
comment j, application of strict tort liability failure to warn in the case of
allergies. Several Court of Appeal decisions in the context of allergic reactions to
nonfood products are consistent with or have expressly adopted comment j.”
(Livingston, supra, 72 Cal.App.4th at p. 838.)
• Restatement Second of Torts, section 402A, comment j, states: “In order to
prevent the product from being unreasonably dangerous, the seller may be
required to give directions or warning, on the container, as to its use. The seller
may reasonably assume that those with common allergies, as for example to
eggs or strawberries, will be aware of them, and he is not required to warn
against them. Where, however, the product contains an ingredient to which a
substantial number of the population are allergic, and the ingredient is one
whose danger is not generally known, or if known is one which the consumer
would reasonably not expect to find in the product, the seller is required to give
warning against it, if he has knowledge, or by the application of reasonable,
developed human skill and foresight should have knowledge, of the presence of
the ingredient and the danger. Likewise in the case of poisonous drugs, or those
unduly dangerous . . . .”
• “[A] defendant may be liable to a plaintiff who suffered an allergic reaction to a
product on a strict liability failure to warn theory when: the defendant’s product
contained ‘an ingredient to which a substantial number of the population are
allergic’; the ingredient ‘is one whose danger is not generally known, or if
known is one which the consumer would reasonably not expect to find in the
product’; and where the defendant knew or ‘by the application of reasonable,
developed human skill and foresight should have know[n], of the presence of the
ingredient and the danger.’ ” (Livingston, supra, 72 Cal.App.4th at p. 839.)
• “The recently adopted Restatement Third of Torts: Products Liability, section 2,
comment k, . . . similarly states: ‘Cases of adverse allergic or idiosyncratic
reactions involve a special subset of products that may be defective because of
inadequate warnings . . . . [¶] The general rule in cases involving allergic
reactions is that a warning is required when the harm-causing ingredient is one
to which a substantial number of persons are allergic.’ Further, the Restatement
Third of Torts: Products Liability, section 2, comment k notes: ‘The ingredient
that causes the allergic reaction must be one whose danger or whose presence in
the product is not generally known to consumers. . . . When the presence of the
allergenic ingredient would not be anticipated by a reasonable user or consumer,
warnings concerning its presence are required.’ ” (Livingston, supra, 72
Cal.App.4th at pp. 838–839)
• “[T]hose issues [noted in the Restatement] are for the trier of fact to determine.”
(Livingston, supra, 72 Cal.App.4th at p. 840.)
• Livingston was a food product case; however there are several non-food product
cases that are consistent with or have also expressly adopted comment j. (See
McKinney v. Revlon, Inc. (1992) 2 Cal.App.4th 602, 607, 608 fn. 3 [3
Cal.Rptr.2d 72] [home hair-frosting product]; Oakes v. E.I. DuPont de Nemours
& Co., Inc. (1969) 272 Cal.App.2d 645, 649 [77 Cal.Rptr. 709] [weed killer];
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Harris v. Belton (1968) 258 Cal.App.2d 595, 608 [65 Cal.Rptr. 808] [skin tone
cream].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1631–1643
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.165 (Matthew Bender)
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1207A. Strict Liability—Comparative Fault of Plaintiff
[Name of defendant] claims that [name of plaintiff]’s own negligence
contributed to [his/her/nonbinary pronoun] harm. To succeed on this
claim, [name of defendant] must prove both of the following:
1. [insert one or more of the following:]
1. [That [name of plaintiff] negligently [used/misused/modified] the
[product];] [or]
1. [That [name of plaintiff] was [otherwise] negligent;]
1. and
2. That this negligence was a substantial factor in causing [name of
plaintiff]’s harm.
If [name of defendant] proves the above, [name of plaintiff]’s damages are
reduced by your determination of the percentage of [name of plaintiff]’s
responsibility. I will calculate the actual reduction.
Derived from former CACI No. 1207 April 2009; Revised December 2009, May
2020
Directions for Use
Give this instruction if the defendant alleges that the plaintiff’s own negligence
contributed to the plaintiff’s harm. See also CACI No. 405, Comparative Fault of
Plaintiff. For an instruction on the comparative fault of a third person, see CACI
No. 1207B, Strict Liability—Comparative Fault of Third Person.
Subsequent misuse or modification may be considered in determining comparative
fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable
misuse or modification can be a complete defense if it is the sole cause of the
plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.
Sources and Authority
• “[W]e do not permit plaintiff’s own conduct relative to the product to escape
unexamined, and as to that share of plaintiff’s damages which flows from his
own fault we discern no reason of policy why it should, following Li, be borne
by others.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 737 [144
Cal.Rptr. 380, 575 P.2d 1162] [comparative fault applies to strict product liability
actions].)
• “[A] petitioner’s recovery may accordingly be reduced, but not barred, where his
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lack of reasonable care is shown to have contributed to his injury.” (Bradfield v.
Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152 Cal.Rptr. 172].)
• “The record does not support [defendant]’s assertion that modification of the
bracket was the sole cause of the accident. The record does indicate that if the
bracket had not been modified there would have been no need to remove it to
reach the flange bolts, and thus the modification was one apparent cause of
[plaintiff]’s death. However, a number of other causes, or potential causes, were
established, including: [plaintiff]’s failure to wear protective clothing; [third
party]’s failure to furnish the correct replacement bracket for the valve; [third
party]’s failure to furnish [employer] with all of the literature it received from
[defendant]; and negligence on the part of [employer] independent of its
modification of the valve, including violations of various federal Occupational
Safety and Health Administration regulations governing equipment and training
in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)
• “While a jury may well find [plaintiff]’s conduct substantially contributed to the
accident [citing this instruction], we cannot say that conduct, even if sufficient to
establish criminal storage of a firearm, absolves [defendants], as a matter of law,
from all liability for a design defect that may otherwise be shown to exist in the
Glock 21. [Plaintiff]’s responsibility for his own injuries is quintessentially a
question for the jury.” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308
[144 Cal.Rptr.3d 326], internal citations omitted.)
Secondary Sources
Witkin, Summary of California Law (11th ed. 2017) Torts, § 1709
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253
(Matthew Bender)
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1207B. Strict Liability—Comparative Fault of Third Person
[Name of defendant] claims that the [negligence/fault] of [name(s) or
description(s) of nonparty tortfeasor(s)] [also] contributed to [name of
plaintiff]’s harm. To succeed on this claim, [name of defendant] must
prove both of the following:
1. [Insert one or both of the following:]
1. [That [name(s) or description(s) of nonparty tortfeasor(s)]
negligently modified the [product];] [or]
1. [That [name(s) or description(s) of nonparty tortfeasor(s)] was
[otherwise] [negligent/at fault];]
1. and
2. That this [negligence/fault] was a substantial factor in causing
[name of plaintiff]’s harm.
If you find that the [negligence/ [or] fault] of more than one person,
including [name of defendant][, [name of plaintiff],] and [name(s) or
description(s) of nonparty tortfeasor(s)], was a substantial factor in causing
[name of plaintiff]’s harm, you must then decide how much responsibility
each has by assigning percentages of responsibility to each person listed
on the verdict form. The percentages must total 100 percent.
You will make a separate finding of [name of plaintiff]’s total damages, if
any. In determining an amount of damages, you should not consider any
person’s assigned percentage of responsibility.
[“Person” can mean an individual or a business entity.]
Derived from former CACI No. 1207 April 2009; Revised December 2009,
December 2015
Directions for Use
Give this instruction if the defendant has raised the issue of the comparative fault of
a third person who is not also a defendant at trial, including defendants who settled
before trial and nonjoined alleged tortfeasors. (See Dafonte v. Up-Right, Inc. (1992)
2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140]; see also CACI No. 406,
Apportionment of Responsibility.) For an instruction on the comparative fault of the
plaintiff, see CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff.
This instruction may also be used to allocate liability between a negligent and a
strictly liable defendant (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322,
332 [146 Cal. Rptr. 550, 579 P.2d 441].) or between two strictly liable defendants if
multiple products are involved. (Arena v. Owens-Corning Fiberglas Corp. (1998) 63
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Cal.App.4th 1178, 1198 [74 Cal.Rptr.2d 580].) However, there is no comparative
fault among entities in the distribution chain of the same product. Each remains
fully liable for the plaintiff’s economic and noneconomic damages. (Bigler-Engler v.
Breg, Inc. (2017) 7 Cal.App.5th 276, 325 [213 Cal.Rptr.3d 82].)
In the first sentence, include “also” if the defendant concedes some degree of
liability or alleges the comparative fault of the plaintiff, and select “fault” unless the
only basis for liability at issue is negligence. Include the last paragraph if any of the
defendants or others alleged to have contributed to the plaintiff’s harm are not
individuals.
Subsequent misuse or modification may be considered in determining comparative
fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable
misuse or modification can be a complete defense if it is the sole cause of the
plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.
Sources and Authority
• “[T]he comparative indemnity doctrine may be utilized to allocate liability
between a negligent and a strictly liable defendant.” (Safeway Stores, Inc., supra,
21 Cal.3d at p. 332.)
• “The record does not support [defendant]’s assertion that modification of the
bracket was the sole cause of the accident. The record does indicate that if the
bracket had not been modified there would have been no need to remove it to
reach the flange bolts, and thus the modification was one apparent cause of
[plaintiff]’s death. However, a number of other causes, or potential causes, were
established, including: [plaintiff]’s failure to wear protective clothing; [third
party]’s failure to furnish the correct replacement bracket for the valve; [third
party]’s failure to furnish [employer] with all of the literature it received from
[defendant]; and negligence on the part of [employer] independent of its
modification of the valve, including violations of various federal Occupational
Safety and Health Administration regulations governing equipment and training
in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)
• “This case does not present a situation where several defendants in the chain of
distribution seek apportionment under Proposition 51 based on their relevant
fault for injuries caused by a single defective product. In such a situation, courts
have held that Proposition 51 does not apply and each defendant is liable for the
plaintiff’s full noneconomic damages under traditional principles of joint and
several liability.” (Bigler-Engler, supra, 7 Cal.App 5th at p. 325, fn. 35.)
• “Proposition 51 is applicable in a strict liability asbestos exposure case where
multiple products cause the plaintiff’s injuries and the evidence provides a basis
to allocate liability for noneconomic damages between the defective products.
Where the evidence shows that a particular product is responsible for only a part
of plaintiff’s injury, Proposition 51 requires apportionment of the responsibility
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for that part of the injury to that particular product’s chain of distribution.”
(Arena, supra, 63 Cal.App.4th at p. 1198.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1709
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253
(Matthew Bender)
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1208. Component Parts Rule
[Name of defendant] [manufactured/distributed/supplied] [a/an]
[component part], which was then integrated into [a/an] [end product].
[Name of defendant] may be liable for harm caused by a defective [end
product] if [name of plaintiff] proves that (1) [name of defendant]
substantially participated in the integration of its [component part] into
the design of the [end product] and (2) as a result of the integration of
the [component part] into the [end product], the [end product] was
defective under the instruction(s) you have been given on [manufacturing
defect/design defect/failure to warn].
New November 2018
Directions for Use
Give this instruction if the component parts rule is at issue. This rule generally
relieves a component parts manufacturer, distributor, or supplier of liability for
injuries caused by a defect in the product into which the component was integrated.
However, there are two exceptions to the rule so that a component-parts defendant
may nevertheless be found liable. First, the component itself may have been
defective; or second, (a) the defendant may have substantially participated in the
integration of the component into the design of the end product, (b) the integration
of the component caused the end product to be defective, and (c) the defect in the
product causes the harm. (Ramos v. Brenntag Specialties, Inc. (2016) 63 Cal.4th
500, 508 [203 Cal.Rptr.3d 273, 372 P.3d 200].) While the component parts rule is
labelled a defense (see Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 183
[202 Cal.Rptr.3d 460, 370 P.3d 1022]; see also Romine v. Johnson Controls, Inc.
(2014) 224 Cal.App.4th 990, 1006 fn. 6 [169 Cal.Rptr.3d 208]), the plaintiff has the
burden of avoiding the defense by proving one of the exceptions.
This instruction is for use under the second exception. To prove that the end product
was defective or lacked a required warning, the plaintiff must prove a manufacturing
or design defect, or a failure to warn, as with any other strict product liability claim,
using CACI No. 1201, Strict Liability—Manufacturing Defect—Essential Factual
Elements, CACI No. 1203, Strict Liability—Design Defect—Consumer Expectation
Test—Essential Factual Elements, or CACI No. 1204, Strict Liability—Design
Defect—Risk-Benefit Test—Essential Factual Elements (or both), or CACI No. 1205,
Strict Liability—Failure to Warn—Essential Factual Elements. The plaintiff has the
same burden if the claim is that the component itself was defective or lacked a
required warning.
The component parts rule does not apply if the injury is caused by the component
when it is being used as intended before integration into another product. (See
Ramos, supra, 63 Cal.4th at p. 504.)
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Sources and Authority
• “Another defense protects manufacturers and sellers of component parts from
liability to users of finished products incorporating their components. Under the
component parts doctrine, the supplier of a product component is not liable for
injuries caused by the finished product unless (1) the component itself was
defective and caused injury or (2) the supplier participated in integrating the
component into a product, the integration caused the product to be defective, and
that defect caused injury.” (Webb, supra, 63 Cal.4th at p. 183.)
• “In Webb [supra], we explained that the component parts doctrine . . . and as
accurately reflected in section 5 of the Restatement Third of Torts, Products
Liability—applies (1) when a supplier provides a component or raw material that
is not itself defective (by virtue of a manufacturing, design, or warning defect),
(2) the component or raw material is changed or transformed when incorporated
through the manufacturing process into a different finished or end product, and
(3) an end user of the finished product is allegedly injured by a defect in the
finished product.” (Ramos, supra, 63 Cal.4th at pp. 507–508, internal citations
omitted.)
• “[T]he component parts doctrine provides protection to the supplier of the
component or raw material, subjecting that entity to liability for harm caused by
a product into which the component has been integrated only if the supplier
“(b)(1) . . . substantially participates in the integration of the component into the
design of the product; and [¶] (2) the integration of the component causes the
product to be defective . . . ; and [¶] (3) the defect in the product causes the
harm.” (Ramos, supra, 63 Cal.4th at p. 508.)
• “ ‘Component parts are products, whether sold or distributed separately or
assembled with other component parts.’ ‘Product components include raw
materials, bulk products, and other constituent products sold for integration into
other products.’ Component manufacturers and suppliers, as sellers of ‘products,’
are subject to products liability. ‘Like manufacturers, suppliers, and retailers of
complete products, component manufacturers and suppliers are “an integral part
of the overall producing and marketing enterprise,” and may in a particular case
“be the only member of that enterprise reasonably available to the injured
plaintiff,” and may be in the best position to ensure product safety.’ ” (Johnson v.
United States Steel Corp. (2015) 240 Cal.App.4th 22, 33 [192 Cal.Rptr.3d 158],
internal citations omitted.)
• “[T]he duty of a component manufacturer or supplier to warn about the hazards
of its products is not unlimited. . . . ‘Making suppliers of inherently safe raw
materials and component parts pay for the mistakes of the finished product
manufacturer would not only be unfair, but it also would impose and [sic]
intolerable burden on the business world . . . . Suppliers of versatile materials
like chains, valves, sand gravel, etc., cannot be expected to become experts in
the infinite number of finished products that might conceivably incorporate their
multi-use raw materials or components.’ Thus, cases have subjected claims made
against component suppliers to two related doctrines, the ‘raw material supplier
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defense’ and ‘the bulk sales/sophisticated purchaser rule.’ Although the doctrines
are distinct, their application oftentimes overlaps and together they present
factors which should be carefully considered in evaluating the liability of
component suppliers. Those factors include whether the raw materials or
components are inherently dangerous, whether the materials are significantly
altered before integration into an end product, whether the supplier was involved
in designing the end-product and whether the manufacturer of the end product
was in a position to discover and disclose hazards.” (Artiglio, supra, 61
Cal.App.4th at p. 837.)
• “[T]he protection afforded to defendants by the component parts doctrine does
not apply when the product supplied has not been incorporated into a different
finished or end product but instead, as here, itself allegedly causes injury when
used in the manner intended by the product supplier.” (Ramos, supra, 63 Cal.4th
at p. 504.)
• “The Restatement further explains ‘Product components include raw
materials. . . . Thus, when raw materials are contaminated or otherwise defective
within the meaning of § 2(a), the seller of the raw material is subject to liability
for harm caused by such defects.’ California courts have generally adopted the
component parts doctrine as it is articulated in the Restatement.” (Brady v.
Calsol, Inc. (2015) 241 Cal.App.4th 1212, 1219 [194 Cal.Rptr.3d 243], internal
citation omitted.)
• “The California Supreme Court has not determined whether the component parts
defense is limited to fungible products.” (Romine, supra, 224 Cal.App.4th at p.
1006, fn. 6.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1617, 1666
1209–1219. Reserved for Future Use
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1220. Negligence—Essential Factual Elements
[Name of plaintiff] [also] claims that [he/she/nonbinary pronoun] was
harmed by [name of defendant]’s negligence and that [he/she/nonbinary
pronoun/it] should be held responsible for that harm. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant]
[designed/manufactured/supplied/installed/inspected/repaired/rented]
the [product];
2. That [name of defendant] was negligent in [designing/
manufacturing/supplying/installing/inspecting/repairing/renting]
the [product];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2012
Directions for Use
Use this instruction to allege a manufacturing or design defect under a negligence
theory. Also give CACI No. 1221, Negligence—Basic Standard of Care. If a defect
is also alleged under a theory of strict liability, include “also” in the first sentence.
For an instruction on negligent failure to warn, see CACI No. 1222,
Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements.
This instruction may also be given in an action against a defendant who is alleged
to have negligently supplied, installed, inspected, repaired, or rented the product.
Presumably, the judge will have already determined that the defendant owed the
plaintiff a duty because the product was of a type that could endanger others if it
was negligently made. (See Ky. Fried Chicken of Cal. v. Superior Court (1997) 14
Cal.4th 814, 819 [59 Cal.Rptr.2d 756, 927 P.2d 1260] [existence of a duty is a
question of law for the court].) Accordingly, no duty element is included in this
instruction.
Sources and Authority
• “As with an action asserted under a strict liability theory, under a negligence
theory the plaintiff must prove a defect caused injury. However, ‘[u]nder a
negligence theory, plaintiff must also prove “an additional element, namely, that
the defect in the product was due to negligence of the defendant.” ’ ” (Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1304–1305 [144 Cal.Rptr.3d 326],
internal citation omitted.)
• “No valid reason appears to require a plaintiff to elect whether to proceed on the
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theory of strict liability in tort or on the theory of negligence. . . . Nor does it
appear that instructions on the two theories will be confusing to the jury. There
is nothing inconsistent in instructions on the two theories and to a large extent
the two theories parallel and supplement each other.” (Jiminez v. Sears, Roebuck
& Co. (1971) 4 Cal.3d 379, 387 [93 Cal.Rptr. 769, 482 P.2d 681].)
• “The courts of this state are committed to the doctrine that the duty of care
exists in the absence of privity of contract not only where the article
manufactured is inherently dangerous but also where it is reasonably certain, if
negligently manufactured or constructed, to place life and limb in peril.”
(Sheward v. Virtue (1942) 20 Cal.2d 410, 412 [126 P.2d 345], internal citations
omitted.)
• Manufacturers or other suppliers of goods and buyers or users have a “special
relationship” giving rise to an affirmative duty to assist or protect. (6 Witkin,
Summary of Cal. Law (10th ed. 2005) §§ 1038–1042, 1048, 1049.)
• Restatement Second of Torts, section 388, comment (c), provides: “These rules
. . . apply to sellers, lessors, donors, or lenders, irrespective of whether the
chattel is made by them or by a third person. They apply to all kinds of
bailors. . . . They also apply to one who undertakes the repair of a chattel and
who delivers it back with knowledge that it is defective because of the work
which he is employed to do upon it.”
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1594
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.20
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.32
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.190 et seq.
(Matthew Bender)
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1221. Negligence—Basic Standard of Care
A [designer/manufacturer/supplier/installer/repairer] is negligent if [he/
she/nonbinary pronoun/it] fails to use the amount of care in [designing/
manufacturing/inspecting/installing/repairing] the product that a
reasonably careful [designer/manufacturer/supplier/installer/ repairer]
would use in similar circumstances to avoid exposing others to a
foreseeable risk of harm.
In determining whether [name of defendant] used reasonable care, you
should balance what [name of defendant] knew or should have known
about the likelihood and severity of potential harm from the product
against the burden of taking safety measures to reduce or avoid the
harm.
New September 2003; Revised December 2012
Directions for Use
Give this instruction with CACI No. 1220, Negligence—Essential Factual Elements.
This instruction gives guidance to the jury as to how to evaluate element 2
(defendant was negligent) of CACI 1220. For an instruction on negligent failure to
warn, see CACI No. 1222, Negligence—Manufacturer or Supplier—Duty to
Warn—Essential Factual Elements.
The duty to inspect or test is included in the “knew or should have known” standard
of this instruction: “If the manufacturer designs the product safely, manufactures the
product safely, and provides an adequate warning of dangers inherent in the use of
the product, then a failure to test the product cannot, standing alone, cause any
injury. The duty to test is a subpart of the other three duties because a breach of the
duty to test cannot by itself cause any injury.” (Valentine v. Baxter Healthcare Corp.
(1999) 68 Cal.App.4th 1467, 1486 [81 Cal.Rptr.2d 252], quoting Kociemba v. G.D.
Searle & Co. (D. Minn. 1989) 707 F.Supp. 1517, 1527.)
Sources and Authority
• “A manufacturer/seller of a product is under a duty to exercise reasonable care
in its design so that it can be safely used as intended by its buyer/consumer.”
(Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229
Cal.Rptr. 605].) This duty “ ‘extends to all persons within the range of potential
danger.’ ” (Ibid., internal citations omitted.)
• “In determining what precautions, if any, were required under the circumstances,
the likelihood of harm, and the gravity of the harm if it happens, must be
balanced against the burden of the precaution which would be effective to avoid
the harm.” (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062,
1077–1078 [91 Cal.Rptr. 319], internal citations omitted.)
• [E]xpert testimony about the safety of a product, in light of industry standards,
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can also take into account other applicable and relevant circumstances. As
framed by CACI No. 1221, the negligence inquiry asks if the manufacturer
failed to use the amount of care in designing the product that a reasonably
careful designer or manufacturer would have used in similar circumstances.”
(Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 430
[136 Cal.Rptr.3d 739], internal citations omitted.)
• “[F]reedom from negligence does not inure to the manufacturer because it
purchased parts from another which were defective.” (Sheward v. Virtue (1942)
20 Cal.2d 410, 412 [126 P.2d 345].)
• “The duty of a manufacturer with respect to the design of products placed on the
market is defined in the Restatement Second of Torts, section 398: ‘A
manufacturer of a chattel made under a plan or design which makes it dangerous
for the uses for which it is manufactured is subject to liability to others whom
he should expect to use the chattel or to be endangered by its probable use for
physical harm caused by his failure to exercise reasonable care in the adoption
of a safe plan or design.’ Thus, the manufacturer must use reasonable care ‘to so
design his product as to make it not accident-proof, but safe for the use for
which it was [sic] intended.’ What is ‘reasonable care,’ of course, varies with the
facts of each case, but it involves a balancing of the likelihood of harm to be
expected from a machine with a given design and the gravity of harm if it
happens against the burden of the precaution which would be effective to avoid
the harm.” (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 470 [85 Cal.Rptr.
629, 467 P.2d 229], internal citation omitted.)
• “ ‘[T]he test of negligent design “involves a balancing of the likelihood of harm
to be expected from a machine with a given design and the gravity of harm if it
happens against the burden of the precaution which would be effective to avoid
the harm.” [Citation.] . . . “A manufacturer or other seller can be negligent in
marketing a product because of the way it was designed. In short, even if a
seller had done all that he could reasonably have done to warn about a risk or
hazard related to the way a product was designed, it could be that a reasonable
person would conclude that the magnitude of the reasonably foreseeable harm as
designed outweighed the utility of the product as so designed.” [Citation.] Thus,
“most of the evidentiary matters” relevant to applying the risk/benefit test in
strict liability cases “are similar to the issues typically presented in a negligent
design case.” ’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1305 [144
Cal.Rptr.3d 326].)
• “A danger is unreasonable when it is foreseeable, and the manufacturer’s ability,
actual, constructive, or potential, to forestall unreasonable danger is the measure
of its duty in the design of its product.” (Balido v. Improved Machinery, Inc.
(1972) 29 Cal.App.3d 633, 640 [105 Cal.Rptr. 890], disapproved on other
grounds in Regents of University of California v. Hartford Accident & Indemnity
Co. (1978) 21 Cal.3d 624, 641–642 [147 Cal.Rptr. 486, 581 P.2d 197].)
• “With respect to tests or inspections, it is well settled that where an article is
such that it is reasonably certain, if negligently manufactured or designed, to
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place life and limb in peril, the manufacturer is chargeable with negligence if the
defective condition could be disclosed by reasonable inspection and tests, and
such inspection and tests are omitted.” (Putensen, supra, 12 Cal.App.3d at p.
1078, internal citations omitted.)
• “[W]here an article is either inherently dangerous or reasonably certain to place
life and limb in peril when negligently made, a manufacturer owes a duty of
care to those who are the ultimate users. This duty requires reasonable care to be
exercised in assembling component parts and inspecting and testing them before
the product leaves the plant.” (Reynolds v. Natural Gas Equipment, Inc. (1960)
184 Cal.App.2d 724, 736 [7 Cal.Rptr. 879], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1631–1643
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1271, 2:1295, 2:1331, 2:1381 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.190 et seq.
(Matthew Bender)
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1222. Negligence—Manufacturer or Supplier—Duty to
Warn—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent by not
using reasonable care to warn [or instruct] about the [product]’s
dangerous condition or about facts that made the [product] likely to be
dangerous. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That [name of defendant] knew or reasonably should have known
that the [product] was dangerous or was likely to be dangerous
when used or misused in a reasonably foreseeable manner;
3. That [name of defendant] knew or reasonably should have known
that users would not realize the danger;
4. That [name of defendant] failed to adequately warn of the danger
[or instruct on the safe use of the [product]];
5. That a reasonable [manufacturer/distributor/seller] under the
same or similar circumstances would have warned of the danger
[or instructed on the safe use of the [product]];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s failure to warn [or instruct] was a
substantial factor in causing [name of plaintiff]’s harm.
[The warning must be given to the prescribing physician and must
include the potential risks or side effects that may follow the foreseeable
use of the product. [Name of defendant] had a continuing duty to warn
physicians as long as the product was in use.]
New September 2003; Revised June 2011, December 2012, May 2020
Directions for Use
Give this instruction in a case involving product liability in which a claim for
failure to warn is included under a negligence theory. For an instruction on failure
to warn under strict liability and for additional sources and authority, see CACI No.
1205, Strict Liability—Failure to Warn—Essential Factual Elements. For instructions
on design and manufacturing defect under a negligence theory, see CACI No. 1220,
Negligence—Essential Factual Elements, and CACI No. 1221, Negligence—Basic
Standard of Care.
To make a prima facie case, the plaintiff has the initial burden of producing
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evidence that the plaintiff was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
678 [115 Cal.Rptr.3d 590] [strict liability design defect risk-benefit case].) See also
CACI No. 1245, Affırmative Defense—Product Misuse or Modification. Product
misuse is a complete defense to strict products liability if the defendant proves that
an unforeseeable abuse or alteration of the product after it left the manufacturer’s
hands was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co.
(1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.)
Misuse or modification that was a substantial factor in, but not the sole cause of,
plaintiff’s harm may also be considered in determining the comparative fault of the
plaintiff or of third persons. See CACI No. 1207A, Strict Liability—Comparative
Fault of Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of
Third Person.
The last bracketed paragraph is to be used in prescription drug cases only.
Sources and Authority
• “[T]he manufacturer has a duty to use reasonable care to give warning of the
dangerous condition of the product or of facts which make it likely to be
dangerous to those whom he should expect to use the product or be endangered
by its probable use, if the manufacturer has reason to believe that they will not
realize its dangerous condition.” (Putensen v. Clay Adams, Inc. (1970) 12
Cal.App.3d 1062, 1076–1077 [91 Cal.Rptr. 319].)
• “Under California law, a manufacturer generally has no duty to warn of risks
from another manufacturer’s product, and is typically liable only for harm
caused by its own product.” (Johnson & Johnson Talcum Powder Cases (2019)
37 Cal.App.5th 292, 315 [249 Cal.Rptr.3d 642].)
• “Negligence law in a failure-to-warn case requires a plaintiff to prove that a
manufacturer or distributor did not warn of a particular risk for reasons which
fell below the acceptable standard of care, i.e., what a reasonably prudent
manufacturer would have known and warned about.” (Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1305 [144 Cal.Rptr.3d 326], internal citation
omitted.)
• “Thus, the question defendants wanted included in the special verdict
form—whether a reasonable manufacturer under the same or similar
circumstances would have given a warning—is an essential inquiry in the
negligent failure to warn claim.” (Trejo v. Johnson & Johnson (2017) 13
Cal.App.5th 110, 137 [220 Cal.Rptr.3d 127] [citing this instruction].)
• “Negligence and strict products liability are separate and distinct bases for
liability that do not automatically collapse into each other because the plaintiff
might allege both when a product warning contributes to her injury.” (Conte v.
Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [85 Cal.Rptr.3d 299].)
• “The ‘known or knowable’ standard arguably derives from negligence principles,
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and failure to warn claims are generally ‘ “rooted in negligence” to a greater
extent than’ manufacturing or design defect claims. Unlike those other defects, a
‘ “warning defect” relates to a failure extraneous to the product itself’ and can
only be assessed by examining the manufacturer’s conduct. These principles
notwithstanding, California law recognizes separate failure to warn claims under
both strict liability and negligence theories. In general, a product seller will be
strictly liable for failure to warn if a warning was feasible and the absence of a
warning caused the plaintiff’s injury. Reasonableness of the seller’s failure to
warn is immaterial in the strict liability context. Conversely, to prevail on a
claim for negligent failure to warn, the plaintiff must prove that the seller’s
conduct fell below the standard of care. If a prudent seller would have acted
reasonably in not giving a warning, the seller will not have been negligent.”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181 [202 Cal.Rptr.3d
460, 370 P.3d 1022], footnote and internal citations omitted.)
• “It is true that the two types of failure to warn claims are not necessarily
exclusive: ‘No valid reason appears to require a plaintiff to elect whether to
proceed on the theory of strict liability in tort or on the theory of
negligence. . . . [¶] Nor does it appear that instructions on the two theories will
be confusing to the jury. There is nothing inconsistent in instructions on the two
theories and to a large extent the two theories parallel and supplement each
other.’ Despite the often significant overlap between the theories of negligence
and strict liability based on a product defect, a plaintiff is entitled to instructions
on both theories if both are supported by the evidence.” (Oxford v. Foster
Wheeler LLC (2009) 177 Cal.App.4th 700, 717 [99 Cal.Rptr.3d 418].)
• “(1) [T]he strict liability instructions ‘more than subsumed the elements of duty
to warn set forth in the negligence instructions’; (2) under the instructions, there
is no ‘real difference between a warning to ordinary users about a product use
that involves a substantial danger, and a warning about a product that is
dangerous or likely to be dangerous for its intended use’; (3) [defendant]’s duty
under the strict liability instructions ‘to warn of potential risks and side effects
envelope[d] a broader set of risk factors than the duty, [under the] negligence
instructions, to warn of facts which make the product “likely to be dangerous”
for its intended use’; (4) the reference in the strict liability instructions here to
‘potential risks . . . that were known or knowable through the use of scientific
knowledge’ encompasses the concept in the negligence instructions of risks
[defendant] ‘knew or reasonably should have known’; and (5) for all these
reasons, the jury’s finding that [defendant] was not liable under a strict liability
theory ‘disposed of any liability for failure to warn’ on a negligence theory.”
(Trejo, supra, 13 Cal.App.5th at pp. 132–133, original italics, internal citations
omitted.)
• “In the context of prescription drugs, a manufacturer’s duty is to warn physicians
about the risks known or reasonably known to the manufacturer. The
manufacturer has no duty to warn of risks that are ‘merely speculative or
conjectural, or so remote and insignificant as to be negligible.’ If the
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manufacturer provides an adequate warning to the prescribing physician, the
manufacturer need not communicate a warning directly to the patient who uses
the drug.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 164
[226 Cal.Rptr.3d 336, 407 P.3d 18], internal citations omitted.)
• “Because the same warning label must appear on the brand-name drug as well as
its generic bioequivalent, a brand-name drug manufacturer owes a duty of
reasonable care in ensuring that the label includes appropriate warnings,
regardless of whether the end user has been dispensed the brand-name drug or
its generic bioequivalent. If the person exposed to the generic drug can
reasonably allege that the brand-name drug manufacturer’s failure to update its
warning label foreseeably and proximately caused physical injury, then the
brand-name manufacturer’s liability for its own negligence does not
automatically terminate merely because the brand-name manufacturer transferred
its rights in the brand-name drug to a successor manufacturer.” (T.H., supra, 4
Cal.5th at p. 156.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1317–1321
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1271, 2:1295 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21,
Ch. 7, Proof, § 7.05 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.165 et seq.
(Matthew Bender)
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1223. Negligence—Recall/Retrofit
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun/it] failed to [recall/retrofit] the [product]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That [name of defendant] knew or reasonably should have known
that the [product] was dangerous or was likely to be dangerous
when used in a reasonably foreseeable manner;
3. That [name of defendant] became aware of this defect after the
[product] was sold;
4. That [name of defendant] failed to [recall/retrofit] [or warn of the
danger of] the [product];
5. That a reasonable [manufacturer/distributor/seller] under the
same or similar circumstances would have [recalled/retrofitted]
the [product];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s failure to [recall/retrofit] the [product]
was a substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised October 2004
Directions for Use
If the issue concerns a negligently conducted recall, modify this instruction
accordingly.
Sources and Authority
• “Failure to conduct an adequate retrofit campaign may constitute negligence
apart from the issue of defective design.” (Hernandez v. Badger Construction
Equipment Co. (1994) 28 Cal.App.4th 1791, 1827 [34 Cal.Rptr.2d 732], internal
citation omitted.)
• In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485 [200 Cal.Rptr.
387], the court observed that, where the evidence showed that the manufacturer
became aware of dangers after the product had been on the market, the jury
“could still have found that Clark’s knowledge of the injuries caused by these
features imposed a duty to warn of the danger, and/or a duty to conduct an
adequate retrofit campaign.” The failure to meet the standard of reasonable care
with regard to either of these duties could have supported a finding of
negligence. (Id. at p. 494, original italics.)
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• In Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633 [105 Cal.Rptr.
890] (disapproved on other grounds in Regents of University of California v.
Hartford Accident & Indemnity Co. (1978) 21 Cal.3d 624, 641–642 [147
Cal.Rptr. 486, 581 P.2d 197]), the court concluded that a jury could reasonably
have found negligence based upon the manufacturer’s failure to retrofit
equipment determined to be unsafe after it was sold, even though the
manufacturer told the equipment’s owners of the safety problems and offered to
correct those problems for $500. (Id. at p. 649.)
• If a customer fails to comply with a recall notice, this will not automatically
absolve the manufacturer from liability: “A manufacturer cannot delegate
responsibility for the safety of its product to dealers, much less purchasers.”
(Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1562–1563 [71
Cal.Rptr.2d 190], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1643
1 California Products Liability Actions, Ch. 7, Problems of Causation, § 7.06
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.52
(Matthew Bender)
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1224. Negligence—Negligence for Product Rental/Standard of
Care
[A person who rents products to others for money is negligent if that
person fails to use reasonable care to:
1. Inspect the products for defects;
2. Make them safe for their intended use; and
3. Adequately warn of any known dangers.]
[or]
[A person who lends products to others without charge only is required
to use reasonable care to warn of known defects.]
New September 2003; Revised May 2020
Directions for Use
Use this instruction in conjunction with CACI No. 1220, Negligence—Essential
Factual Elements, and instead of CACI No. 1221, Negligence—Basic Standard of
Care, in cases involving rentals.
If the case involves a product lent gratuitously for the mutual benefit of the parties
(e.g., to a prospective purchaser), the first paragraph is applicable and the instruction
needs to be modified.
In a purely gratuitous lending case, if the object is a “dangerous instrumentality”
there may be a duty to conduct a reasonable inspection before lending. (See
Tierstein v. Licht (1959) 174 Cal.App.2d 835, 842 [345 P.2d 341].)
Sources and Authority
• Duties of Lessor of Personal Property. Civil Code section 1955.
• If a bailment is for hire, or provides a mutual benefit, the bailor has a duty to
the bailee and to third persons to (1) warn of actually known defects and (2) to
use reasonable care to make an examination of the good before lending it “in
order to make certain that it [is] fit for the use known to be intended.” (Tierstein,
supra, 174 Cal.App.2d at pp. 840–841.)
• A bailment, otherwise gratuitous, where made to induce a purchase, has been
considered sufficient to give rise to the same duty of reasonable care on the part
of the bailor as an ordinary bailment for hire. This is regarded as a bailment for
mutual benefit. (Tierstein, supra, 174 Cal.App.2d at p. 842.)
• Under either a negligence or an implied warranty theory, “the essential inquiry
. . . is whether [the defendants] made such inspection of their equipment as was
necessary to discharge their duty of reasonable care.” (McNeal v. Greenberg
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(1953) 40 Cal.2d 740, 742 [255 P.2d 810].) The bailor is not an insurer or
guarantor. (Tierstein, supra, 174 Cal.App.2d at p. 841.)
• Restatement Second of Torts, section 408, provides: “One who leases a chattel as
safe for immediate use is subject to liability to those whom he should expect to
use the chattel, or to be endangered by its probable use, for physical harm
caused by its use in a manner for which, and by a person for whose use, it is
leased, if the lessor fails to exercise reasonable care to make it safe for such use
or to disclose its actual condition to those who may be expected to use it.”
• This Restatement section was cited with approval in Rae v. California Equipment
Co. (1939) 12 Cal.2d 563, 569 [86 P.2d 352].
• “The general rule is that the only duty which a gratuitous bailor owes either to
the bailee or to third persons is to warn them of actually known defects which
render the chattel dangerous for the purpose for which it is ordinarily used; he
has no liability for injuries caused by defects in the subject matter of the
bailment of which he was not aware.” (Tierstein, supra, 174 Cal.App.2d at p.
841.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1670
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.053 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 413, Personal Property Leases,
§ 413.34 (Matthew Bender)
1225–1229. Reserved for Future Use
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1230. Express Warranty—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by the [product] because [name of defendant] represented, either by words
or actions, that the [product] [insert description of alleged express warranty,
e.g., “was safe”], but the [product] was not as represented. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert one or more of the following:]
1. [gave [name of plaintiff] a written warranty that the [product]
[insert description of written warranty];] [or]
1. [made a [statement of fact/promise] [to/received by] [name of
plaintiff] that the [product] [insert description of alleged express
warranty];] [or]
1. [gave [name of plaintiff] a description of the [product];] [or]
1. [gave [name of plaintiff] a sample or model of the [product];]
2. That the [product] [insert one or more of the following:]
2. [did not perform as [stated/promised];] [or]
2. [did not meet the quality of the [description/sample/model];]
[3. That [name of plaintiff] took reasonable steps to notify [name of
defendant] within a reasonable time that the [product] was not as
represented, whether or not [name of defendant] received such
notice;]
4. That [name of defendant] failed to [repair/specify other remedy
provided by warranty] the [product] as required by the warranty;
5. That [name of plaintiff] was harmed; and
6. That the failure of the [product] to be as represented was a
substantial factor in causing [name of plaintiff]’s harm.
[Formal words such as “warranty” or “guarantee” are not required to
create a warranty. It is also not necessary for [name of defendant] to have
specifically intended to create a warranty. But a warranty is not created
if [name of defendant] simply stated the value of the goods or only gave
[his/her/nonbinary pronoun] opinion of or recommendation regarding the
goods.]
New September 2003; Revised February 2005, June 2015
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Directions for Use
This instruction is for use if breach of an express warranty is alleged under the
California Commercial Code. (See Orichian v. BMW of North America, LLC (2014)
226 Cal.App.4th 1322, 1333–1334 [172 Cal.Rptr.3d 876]; Comm. Code, § 2313.) If
a breach of written warranty under the federal Magnuson-Moss Warranty Act (see
15 U.S.C. § 2301 et seq.) is alleged, give the first option for element 1. (See 15
U.S.C. §§ 2310(d)(1), 2301(6).)
The giving of notice to the seller is not required in personal injury or property
damage lawsuits against a manufacturer or another supplier with whom the plaintiff
has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57,
61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
If an instruction on the giving of notice to the seller is needed, see CACI No. 1243,
Notification/Reasonable Time.
Sources and Authority
• Express Warranties. California Uniform Commercial Code section 2313.
• Applicable to “Transactions in Goods.” California Uniform Commercial Code
section 2102.
• “Goods” Defined. California Uniform Commercial Code section 2105.
• Damages Under Commercial Code. California Uniform Commercial Code
section 2714.
• “An express warranty ‘is a contractual promise from the seller that the goods
conform to the promise. If they do not, the buyer is entitled to recover the
difference between the value of the goods accepted by the buyer and the value
of the goods had they been as warranted.’ ” (Dagher v. Ford Motor Co. (2015)
238 Cal.App.4th 905, 928 [190 Cal.Rptr.3d 261].)
• “A warranty relates to the title, character, quality, identity, or condition of the
goods. The purpose of the law of warranty is to determine what it is that the
seller has in essence agreed to sell.” (Keith v. Buchanan (1985) 173 Cal.App.3d
13, 20 [220 Cal.Rptr. 392], internal citation omitted.)
• “The essential elements of a cause of action under the California Uniform
Commercial Code for breach of an express warranty to repair defects are (1) an
express warranty to repair defects given in connection with the sale of goods; (2)
the existence of a defect covered by the warranty; (3) the buyer’s notice to the
seller of such a defect within a reasonable time after its discovery; (4) the
seller’s failure to repair the defect in compliance with the warranty; and (5)
resulting damages.” (Orichian, supra, 226 Cal.App.4th at pp. 1333–1334,
internal citations omitted.)
• “Privity is not required for an action based upon an express warranty.” (Hauter
v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “Used car owners that obtain their vehicles via private sales and who comply
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with the warranty terms may seek to enforce the express warranty against the
manufacturer by bringing an action under the Commercial Code based on breach
of express warranty. Such an action does not require that the plaintiff purchase
the vehicle from a retail seller.” (Dagher, supra, 238 Cal.App.4th at p. 928.)
• “ ‘The determination as to whether a particular statement is an expression of
opinion or an affirmation of a fact is often difficult, and frequently is dependent
upon the facts and circumstances existing at the time the statement is made.’ ”
(Keith, supra, 173 Cal.App.3d at p. 21, internal citation omitted.)
• “Statements made by a seller during the course of negotiation over a contract are
presumptively affirmations of fact unless it can be demonstrated that the buyer
could only have reasonably considered the statement as a statement of the
seller’s opinion. Commentators have noted several factors which tend to indicate
an opinion statement. These are (1) a lack of specificity in the statement made,
(2) a statement that is made in an equivocal manner, or (3) a statement which
reveals that the goods are experimental in nature.” (Keith, supra, 173 Cal.App.3d
at p. 21.)
• “It is important to note . . . that even statements of opinion can become
warranties under the code if they become part of the basis of the bargain.”
(Hauter, supra, 14 Cal.3d at p. 115, fn. 10.)
• “The basis of the bargain requirement represents a significant change in the law
of warranties. Whereas plaintiffs in the past have had to prove their reliance
upon specific promises made by the seller, the Uniform Commercial Code
requires no such proof.” (Hauter, supra, 14 Cal.3d at p. 115, internal citations
omitted.)
• “It is immaterial whether defendant had actual knowledge of the
contraindications. ‘The obligation of a warranty is absolute, and is imposed as a
matter of law irrespective of whether the seller knew or should have known of
the falsity of his representations.’ ” (Grinnell v. Charles Pfizer & Co. (1969) 274
Cal.App.2d 424, 442 [79 Cal.Rptr. 369], internal citations omitted.)
• “[A] sale is ordinarily an essential element of any warranty, express or implied
. . . .” (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759 [137
Cal.Rptr. 417], internal citations omitted.)
• “Neither Magnuson-Moss nor the California Uniform Commercial Code requires
proof that a defect substantially impairs the use, value, or safety of a vehicle in
order to establish a breach of an express or written warranty, as required under
Song-Beverly.” (Orichian, supra, 226 Cal.App.4th at p. 1331; fn. 9, see CACI
No. 3204, “Substantially Impaired” Explained.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 57–67
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
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§§ 502.23, 502.42–502.50, 502.140–502.150 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.60 et seq. (Matthew
Bender)
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1231. Implied Warranty of Merchantability—Essential Factual
Elements
[Name of plaintiff] [also] claims that [he/she/nonbinary pronoun/it] was
harmed by the [product] that [he/she/nonbinary pronoun/it] bought from
[name of defendant] because the [product] did not have the quality that a
buyer would expect. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of plaintiff] bought the [product] from [name of
defendant];
2. That, at the time of purchase, [name of defendant] was in the
business of selling these goods [or by [his/her/nonbinary pronoun/
its] occupation held [himself/herself/nonbinary pronoun/itself] out
as having special knowledge or skill regarding these goods];
3. That the [product] [insert one or more of the following:]
3. [was not of the same quality as those generally acceptable in the
trade;]
3. [was not fit for the ordinary purposes for which such goods are
used;]
3. [did not conform to the quality established by the parties’ prior
dealings or by usage of trade;]
3. [other ground as set forth in California Uniform Commercial Code
section 2314(2);]
4. [That [name of plaintiff] took reasonable steps to notify [name of
defendant] within a reasonable time that the [product] did not
have the expected quality;]
5. That [name of plaintiff] was harmed; and
6. That the failure of the [product] to have the expected quality was
a substantial factor in causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This cause of action could also apply to products that are leased. If so, modify the
instruction accordingly.
The giving of notice to the seller is not required in personal injury or property
damage lawsuits against a manufacturer or another supplier with whom the plaintiff
has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57,
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61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
If an instruction on the giving of notice to the seller is needed, see CACI No. 1243,
Notification/Reasonable Time.
Sources and Authority
• Implied Warranty of Merchantability. California Uniform Commercial Code
section 2314.
• Customary Dealings of Parties. California Uniform Commercial Code section
1303.
• “Merchant” Defined. California Uniform Commercial Code section 2104(1).
• “Goods” Defined. California Uniform Commercial Code section 2105(1).
• “A warranty is a contractual term concerning some aspect of the sale, such as
title to the goods, or their quality or quantity.” (4 Witkin, Summary of California
Law (10th ed. 2005) Sales, § 51.)
• “Unlike express warranties, which are basically contractual in nature, the implied
warranty of merchantability arises by operation of law. It does not ‘impose a
general requirement that goods precisely fulfill the expectation of the buyer.
Instead, it provides for a minimum level of quality.’ ” (American Suzuki Motor
Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295–1296 [44 Cal.Rptr.2d
526], internal citations omitted.)
• “[I]n cases involving personal injuries resulting from defective products, the
theory of strict liability in tort has virtually superseded the concept of implied
warranties.” (Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 432
[79 Cal.Rptr. 369].)
• “Vertical privity is a prerequisite in California for recovery on a theory of breach
of the implied warranties of fitness and merchantability.” (United States Roofing,
Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 [279 Cal.Rptr.
533], internal citations omitted.)
• Although privity appears to be required for actions based upon the implied
warranty of merchantability, there are exceptions to this rule, such as one for
members of the purchaser’s family. (Hauter v. Zogarts (1975) 14 Cal.3d 104,
115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) Vertical privity is also waived for
employees. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339 [5 Cal.Rptr.
863, 353 P.2d 575].) A plaintiff satisfies the privity requirement when he or she
leases or negotiates the sale or lease of the product. (United States Roofing, Inc.,
supra.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 51
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
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44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.24, 502.51, 502.200–502.214 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.63 et seq. (Matthew
Bender)
775
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1232. Implied Warranty of Fitness for a Particular
Purpose—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by the [product] that [he/she/nonbinary pronoun/it] bought from [name of
defendant] because the [product] was not suitable for [name of plaintiff]’s
intended purpose. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of plaintiff] bought the [product] from [name of
defendant];
2. That, at the time of purchase, [name of defendant] knew or had
reason to know that [name of plaintiff] intended to use the product
for a particular purpose;
3. That, at the time of purchase, [name of defendant] knew or had
reason to know that [name of plaintiff] was relying on [his/her/
nonbinary pronoun/its] skill and judgment to select or furnish a
product that was suitable for the particular purpose;
4. That [name of plaintiff] justifiably relied on [name of defendant]’s
skill and judgment;
5. That the [product] was not suitable for the particular purpose;
6. [That [name of plaintiff] took reasonable steps to notify [name of
defendant] within a reasonable time that the [product] was not
suitable;]
7. That [name of plaintiff] was harmed; and
8. That the failure of the [product] to be suitable was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This cause of action could also apply to products that are leased. If so, modify the
instruction accordingly.
The giving of notice to the seller is not required in personal injury or property
damage lawsuits against a manufacturer or another supplier with whom the plaintiff
has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57,
61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
If an instruction on the giving of notice to the seller is needed, see CACI No. 1243,
Notification/Reasonable Time.
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Sources and Authority
• Implied Warranty of Fitness for Particular Purpose. California Uniform
Commercial Code section 2315.
• “A warranty is a contractual term concerning some aspect of the sale, such as
title to the goods, or their quality or quantity.” (4 Witkin, Summary of California
Law (10th ed. 2005) Sales, § 51.)
• “An implied warranty of fitness for a particular purpose arises only where (1)
the purchaser at the time of contracting intends to use the goods for a particular
purpose, (2) the seller at the time of contracting has reason to know of this
particular purpose, (3) the buyer relies on the seller’s skill or judgment to select
or furnish goods suitable for the particular purpose, and (4) the seller at the time
of contracting has reason to know that the buyer is relying on such skill and
judgment.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 25 [220 Cal.Rptr.
392], internal citation omitted.)
• “ ‘A “particular purpose” differs from the ordinary purpose for which the goods
are used in that it envisages a specific use by the buyer which is peculiar to the
nature of his business whereas the ordinary purposes for which goods are used
are those envisaged in the concept of merchantability and go to uses which are
customarily made of the goods in question.’ ” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295, fn. 2 [44 Cal.Rptr.2d 526],
internal citation omitted.)
• “The warranty of fitness for a particular purpose is not limited to sales by a
merchant as is the warranty of merchantability. It may be imposed on any seller
possessing sufficient skill and judgment to justify the buyer’s reliance. The Code
drafters suggest, however, that a nonmerchant seller will only in particular
circumstances have that degree of skill and judgment necessary to justify
imposing the warranty.” (4 Witkin, Summary of California Law (10th ed. 2005)
Sales, § 75.)
• “The reliance elements are important to the consideration of whether an implied
warranty of fitness for a particular purpose exists. . . . The major question in
determining the existence of an implied warranty of fitness for a particular
purpose is the reliance by the buyer upon the skill and judgment of the seller to
select an article suitable for his needs.” (Keith, supra, 173 Cal.App.3d at p. 25,
internal citations omitted.)
• In Keith, the reviewing court upheld the trial court’s finding that there was no
reliance because “the plaintiff did not rely on the skill and judgment of the
defendants to select a suitable vessel, but that he rather relied on his own
experts.” (Keith, supra, 173 Cal.App.3d at p. 25.)
• “Vertical privity is a prerequisite in California for recovery on a theory of breach
of the implied warranties of fitness and merchantability.” (United States Roofing,
Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1441 [279 Cal.Rptr.
533], internal citations omitted.)
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• Although privity appears to be required for actions based upon the implied
warranty of merchantability, there are exceptions to this rule, such as one for
members of the purchaser’s family. (Hauter v. Zogarts (1975) 14 Cal.3d 104,
115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) Vertical privity is also waived for
employees. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339 [5 Cal.Rptr.
863, 353 P.2d 575].) A plaintiff satisfies the privity requirement when he or she
leases or negotiates the sale or lease of the product. (United States Roofing,
supra.)
Secondary Sources
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.31
(Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.24, 502.51, 502.220 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)
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1233. Implied Warranty of Merchantability for Food—Essential
Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
the [food product] that was sold by [name of defendant] because the [food
product] was not fit for human consumption. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [ate/drank] a [food product] sold by [name
of defendant];
2. That, at the time of purchase, [name of defendant] was in the
business of selling the [food product] [or by [his/her/nonbinary
pronoun] occupation held [himself/herself/nonbinary pronoun/itself]
out as having special knowledge or skill regarding this [food
product]];
3. That the [food product] was harmful when consumed;
4. That the harmful condition would not reasonably be expected by
the average consumer;
5. That [name of plaintiff] was harmed; and
6. That the [food product] was a substantial factor in causing [name
of plaintiff]’s harm.
New September 2003
Directions for Use
If an instruction on the giving of notice to the seller is needed, see CACI No. 1243,
Notification/Reasonable Time.
The advisory committee believes that the judge, not the jury, would decide whether
the food substance is natural or foreign under Mexicali Rose v. Superior Court
(1992) 1 Cal.4th 617 [4 Cal.Rptr.2d 145, 822 P.2d 1292].
Sources and Authority
• “In the peculiar context of foodstuffs, the theory of breach of an implied
warranty of merchantability has closer affinities to tort law than to contract law
because it allows recovery of damages, without regard to privity of contract, for
personal injuries as well as economic loss.” (Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 871 [93
Cal.Rptr.2d 364], internal citations omitted.)
• “If the injury-producing substance is natural to the preparation of the food
served, it can be said that it was reasonably expected by its very nature and the
food cannot be determined unfit or defective. A plaintiff in such a case has no
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cause of action in strict liability or implied warranty. If, however, the presence of
the natural substance is due to a restaurateur’s failure to exercise due care in
food preparation, the injured patron may sue under a negligence theory.”
(Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633 [4 Cal.Rptr.2d 145,
822 P.2d 1292].)
• “If the injury-causing substance is foreign to the food served, then the injured
patron may also state a cause of action in implied warranty and strict liability,
and the trier of fact will determine whether the substance (i) could be reasonably
expected by the average consumer and (ii) rendered the food unfit or defective.”
(Mexicali Rose, supra, 1 Cal.4th at p. 633.)
• The Mexicali Rose decision was limited to commercial restaurant establishments.
(Mexicali Rose, supra, 1 Cal.4th at p. 619, fn. 1.) However, the reasoning of that
case has been applied to supermarkets. (Ford v. Miller Meat Co. (1994) 28
Cal.App.4th 1196 [33 Cal.Rptr.2d 899].)
• “The term ‘natural’ refers to bones and other substances natural to the product
served, and does not encompass substances such as mold, botulinus bacteria or
other substances (like rat flesh or cow eyes) not natural to the preparation of the
product served.” (Mexicali Rose, supra, 1 Cal.4th at p. 631, fn. 5.)
• It appears that the court would decide as a matter of law if the injury-producing
substance is “natural” or not: “If the injury-producing substance is natural to the
preparation of the food served, it can be said that it was reasonably expected by
its very nature and the food cannot be determined unfit or defective. A plaintiff
in such a case has no cause of action in strict liability or implied warranty.”
(Mexicali Rose, supra, 1 Cal.4th at p. 633.)
Secondary Sources
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.32
(Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 268, Food, § 268.14A (Matthew
Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.201
(Matthew Bender)
1234–1239. Reserved for Future Use
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1240. Affirmative Defense to Express Warranty—Not “Basis of
Bargain”
[Name of defendant] is not responsible for any harm to [name of plaintiff]
if [name of defendant] proves that [his/her/nonbinary pronoun/its]
[statement/description/sample/model/other] was not a basis of the parties’
bargain.
The [statement/description/sample/model/other] is presumed to be a basis
of the bargain. To overcome this presumption, [name of defendant] must
prove that the resulting bargain was not based in any way on the
[statement/description/sample/model/other].
If [name of defendant] proves that [name of plaintiff] had actual
knowledge of the true condition of the [product] before agreeing to buy,
the resulting bargain was not based in any way on the
[statement/description/sample/model/other].
New September 2003; Revoked June 2010; Restored and Revised December 2010
Sources and Authority
• Creation of Express Warranties. California Uniform Commercial Code section
2313.
• “The key under [California Uniform Commercial Code section 2313] is that the
seller’s statements—whether fact or opinion—must become ‘part of the basis of
the bargain.’ The basis of the bargain requirement represents a significant change
in the law of warranties. Whereas plaintiffs in the past have had to prove their
reliance upon specific promises made by the seller, the Uniform Commercial
Code requires no such proof. According to official comment 3 to the Uniform
Commercial Code following section 2313, ‘no particular reliance . . . need be
shown in order to weave [the seller’s affirmations of fact] into the fabric of the
agreement. Rather, any fact which is to take such affirmations, once made, out of
the agreement requires clear affirmative proof.’ ” (Hauter v. Zogarts (1975) 14
Cal.3d 104, 115 [120 Cal.Rptr. 681, 534 P.2d 377, internal citations and footnote
omitted.)
• “The California Supreme Court, in discussing the continued viability of the
reliance factor, noted that commentators have disagreed in regard to the impact
of this development. Some have indicated that it shifts the burden of proving
nonreliance to the seller, and others have indicated that the code eliminates the
concept of reliance altogether.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13,
22 [220 Cal.Rptr. 392], citing Hauter, supra, 14 Cal.3d at pp. 115–116.)
• “The official Uniform Commercial Code comment in regard to section 2-313
‘indicates that in actual practice affirmations of fact made by the seller about the
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goods during a bargain are regarded as part of the description of those goods;
hence no particular reliance on such statements need be shown in order to weave
them into the fabric of the agreement.’ It is clear from the new language of this
code section that the concept of reliance has been purposefully abandoned.”
(Keith, supra, 173 Cal.App.3d at p. 23, internal citations omitted.)
• “The change of the language in section 2313 of the California Uniform
Commercial Code modifies both the degree of reliance and the burden of proof
in express warranties under the code. A warranty statement made by a seller is
presumptively part of the basis of the bargain, and the burden is on the seller to
prove that the resulting bargain does not rest at all on the representation.” (Keith,
supra, 173 Cal.App.3d at p. 23.)
• “[O]nce affirmations have been made, they are woven into the fabric of the
agreement and the seller must present ‘clear affirmative proof’ to remove them
from the agreement.” (Weinstat v. Dentsply International, Inc. (2010) 180
Cal.App.4th 1213, 1234 [103 Cal.Rptr.3d 614.)
• “[W]hile the basis of the bargain of course includes dickered terms to which the
buyer specifically assents, section 2313 itself does not suggest that express
warranty protection is confined to them such that affirmations by the seller that
are not dickered are excluded. Any affirmation, once made, is part of the
agreement unless there is ‘clear affirmative proof’ that the affirmation has been
taken out of the agreement.” (Weinstat, supra, 180 Cal.App.4th at p. 1229.)
• “The official comment to section 2313 is also instructive on this point,
providing: ‘The precise time when words of description or affirmation are made
. . . is not material. The sole question is whether the language . . . [is] fairly to
be regarded as part of the contract.’ Thus, the California Uniform Commercial
Code contemplates that affirmations, promises and descriptions about the goods
contained in product manuals and other materials that are given to the buyer at
the time of delivery can become part of the basis of the bargain, and can be
‘fairly . . . regarded as part of the contract,’ notwithstanding that delivery occurs
after the purchase price has been paid.” (Weinstat, supra, 180 Cal.App.4th at p.
1230.)
• “The buyer’s actual knowledge of the true condition of the goods prior to the
making of the contract may make it plain that the seller’s statement was not
relied upon as one of the inducements for the purchase, but the burden is on the
seller to demonstrate such knowledge on the part of the buyer. Where the buyer
inspects the goods before purchase, he may be deemed to have waived the
seller’s express warranties. But, an examination or inspection by the buyer of the
goods does not necessarily discharge the seller from an express warranty if the
defect was not actually discovered and waived.” (Keith, supra, 173 Cal.App.3d
at pp. 23–24.)
• “First, . . . affirmations and descriptions in product literature received at the
time of delivery but after payment of the purchase price are, without more, part
of the basis of the bargain, period. Second, the seller’s right to rebut goes to
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proof that extracts the affirmations from the ‘agreement’ or ‘bargain of the
parties in fact,’ not, as Keith would suggest, to proof that they were not an
inducement for the purchase. Relying on Keith, the court in effect equated the
concept of the ‘bargain in fact of the parties’ with the concept of reliance, but
. . . the two are not synonymous. Moreover, the opinion in Keith contradicts
itself on this matter. On the one hand the opinion states unequivocally that ‘[i]t
is clear’ section 2313 ‘purposefully abandoned’ the concept of reliance. On the
other hand, we must ask if section 2313 has eliminated the concept of reliance
from express warranty law all together, by what logic can reliance reappear, by
its absence, as an affirmative defense?” (Weinstat, supra, 180 Cal.App.4th at p.
1234, internal citation omitted.)
Secondary Sources
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.62
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.60 (Matthew Bender)
21 California Legal Forms, Ch. 52, Sales of Goods Under the Uniform Commercial
Code, § 52.290[1] (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 24, Suing or
Defending Action for Breach of Warranty, 24.36[4]
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
783
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1241. Affirmative Defense—Exclusion or Modification of Express
Warranty
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for any harm to [name of plaintiff] because [name of
defendant], by words or conduct, limited [his/her/nonbinary pronoun/its]
representations regarding the [product]. To succeed, [name of defendant]
must prove that [he/she/nonbinary pronoun/it] clearly limited the
representations regarding [insert alleged warranty, e.g., “seaworthiness”].
New September 2003
Directions for Use
Limitation can be by words or conduct.
Sources and Authority
• Creation of Express Warranty by Words or Conduct. California Uniform
Commercial Code section 2316(1).
• The California Uniform Commercial Code Comment to section 2316 states:
“This section is designed principally to deal with those frequent clauses in sales
contracts which seek to exclude ‘all warranties, express or implied.’ It seeks to
protect a buyer from unexpected and unbargained language of express
warranty . . . .”
• “Although section 2316 has drawn criticism for its vagueness, its purpose is
clear. No warranty, express or implied, can be modified or disclaimed unless a
seller clearly limits his liability.” (Hauter v. Zogarts (1975) 14 Cal.3d 104,
118–119 [120 Cal.Rptr. 681, 534 P.2d 377], internal citations omitted.)
• “Because a disclaimer or modification is inconsistent with an express warranty,
words of disclaimer or modification give way to words of warranty unless some
clear agreement between the parties dictates the contrary relationship. At the
very least, section 2316 allows limitation of warranties only by means of words
that clearly communicate that a particular risk falls on the buyer.” (Hauter,
supra, 14 Cal.3d at p. 119, internal citation omitted.)
• “[A]ny disclaimer or modification must be strictly construed against the seller.”
(Hauter, supra, 14 Cal.3d at p. 119.)
• “Strict construction against the person who has both warranted a particular fact
to be true and then attempted to disclaim the warranty is especially appropriate
in light of the fact that ‘[a] disclaimer of an express warranty is essentially
contradictory . . . .’ ” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152
Cal.App.3d 951, 958 [199 Cal.Rptr. 789], internal citation omitted.)
• “A disclaimer of warranties must be specifically bargained for so that a
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disclaimer in a warranty given to the buyer after he signs the contract is not
binding.” (Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11,
19–20 [120 Cal.Rptr. 516].)
• “Interpretation of a written document, where extrinsic evidence is unnecessary, is
a question of law for the trial court to determine.” (Temple v. Velcro USA, Inc.
(1983) 148 Cal.App.3d 1090, 1095 [196 Cal.Rptr. 531], internal citations
omitted.)
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.23
(Matthew Bender)
785
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1242. Affirmative Defense—Exclusion of Implied Warranties
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for any harm to [name of plaintiff] because [name of
defendant] eliminated any implied representations relating to [the quality
that a buyer would expect from the [product]] [or] [the [product]’s fitness
for a particular purpose]. To succeed, [name of defendant] must prove:
[Insert one or more of the following:]
[That the sale of the [product] included notice using words such as
“with all faults,” “as is,” or other language that would have made a
buyer aware that the [product] was being sold without any
guarantees.]
[That, before entering into the contract, [name of plaintiff] examined
the [product/sample/model] as fully as desired and that a complete
examination would have revealed the [product]’s deficiency.]
[That [name of plaintiff] refused, after a demand by [name of
defendant], to examine the [product/sample/model] and that such
examination would have revealed the [product]’s deficiency.]
[That the parties’ prior dealings, course of performance, or usage of
trade had eliminated any implied representations.]
New September 2003
Sources and Authority
• Exclusion or Modification of Implied Warranties. California Uniform
Commercial Code section 2316.
• The California Uniform Commercial Code Comment to this section states:
“Disclaimer of the implied warranty of merchantability is permitted under
subsection (2), but with the safeguard that such disclaimers must mention
merchantability and in case of a writing must be conspicuous.”
• The California Uniform Commercial Code Comment to section 2316 states:
“Unlike the implied warranty of merchantability, implied warranties of fitness for
a particular purpose may be excluded by general language, but only if it is in
writing and conspicuous.” Accordingly, disclaimers of warranties for a particular
purpose are probably issues for the court only. Section 1201(10) provides: “A
term or clause is conspicuous when it is so written that a reasonable person
against whom it is to operate ought to have noticed it. A printed heading in
capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language
in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type
or color. But in a telegram any stated term is ‘conspicuous.’ Whether a term or
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clause is ‘conspicuous’ or not is for decision by the court.”
• The California Uniform Commercial Code Comment to section 2316 observes
that “oral language of disclaimer may raise issues of fact as to whether reliance
by the buyer occurred and whether the seller had ‘reason to know’ under the
section on implied warranty of fitness for a particular purpose.”
• The California Uniform Commercial Code Comment to section 2316 states that
the three exceptions listed under subdivision (3) “are common factual situations
in which the circumstances surrounding the transaction are in themselves
sufficient to call the buyer’s attention to the fact that no implied warranties are
made or that a certain implied warranty is being excluded.”
• The California Uniform Commercial Code comment to section 2316 states:
“Paragraph (a) of subsection (3) deals with general terms such as ‘as is,’ ‘as they
stand,’ ‘with all faults,’ and the like. Such terms in ordinary commercial usage
are understood to mean that the buyer takes the entire risk as to the quality of
the goods involved.”
• The California Uniform Commercial Code comment to section 2316 states: “In
order to bring the transaction within the scope of ‘refused to examine’ in
paragraph (b), it is not sufficient that the goods are available for inspection.
There must in addition be a demand by the seller that the buyer examine the
goods fully.”
• The California Uniform Commercial Code comment to section 2316 states: “The
particular buyer’s skill and the normal method of examining goods in the
circumstances determine what defects are excluded by the examination.”
• “Interpretation of a written document, where extrinsic evidence is unnecessary, is
a question of law for the trial court to determine.” (Temple, supra, 148
Cal.App.3d at p. 1095, internal citations omitted.)
• “A disclaimer of warranties must be specifically bargained for so that a
disclaimer in a warranty given to the buyer after he signs the contract is not
binding.” (Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11,
19–20 [120 Cal.Rptr. 516].)
• “[A]ny disclaimer or modification must be strictly construed against the seller.”
(Hauter v. Zogarts (1975) 14 Cal.3d 104, 119 [120 Cal.Rptr. 681, 534 P.2d
377].)
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.24
(Matthew Bender)
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1243. Notification/Reasonable Time
If a buyer is required to notify the seller that a product [is not as
represented] [does not have the expected quality] [is not suitable] [is in a
harmful condition], [he/she/nonbinary pronoun/it] must do so within a
reasonable time after [he/she/nonbinary pronoun/it] discovers or should
have discovered this. A reasonable time depends on the circumstances of
the case. In determining whether notice was given within a reasonable
time, you must apply a more relaxed standard to a retail consumer than
you would to a merchant buyer. A buyer notifies a seller by taking such
steps as may be reasonably required to inform the seller [regardless of
whether the seller actually receives the notice].
New September 2003
Sources and Authority
• Notice to Seller of Breach. California Uniform Commercial Code section
2607(3).
• The California Uniform Commercial Code comment to section 2-607(4) states:
“The time of notification is to be determined by applying commercial standards
to a merchant buyer. ‘A reasonable time’ for notification from a retail consumer
is to be judged by different standards so that in his case it will be extended, for
the rule of requiring notification is designed to defeat commercial bad faith, not
to deprive a good faith consumer of his remedy. [¶] The content of the
notification need merely be sufficient to let the seller know that the transaction is
still troublesome and must be watched. There is no reason to require that the
notification which saves the buyer’s rights under this section must include a clear
statement of all the objections that will be relied on by the buyer, as under the
section covering statements of defects upon rejection (Section 2-605). Nor is
there reason for requiring the notification to be a claim for damages or of any
threatened litigation or other resort to a remedy. The notification which saves the
buyer’s rights under this Article need only be such as informs the seller that the
transaction is claimed to involve a breach, and thus opens the way for normal
settlement through negotiation.”
• “Notification” Defined. California Uniform Commercial Code section 1202(d).
• What is a Reasonable Time. California Uniform Commercial Code section
1205(a).
• A plaintiff is not required to prove that he or she gave notice of a breach of
warranty in personal injury and property damage lawsuits against a manufacturer
or another supplier with whom the plaintiff has not directly dealt. (Greenman v.
Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27 Cal.Rptr. 697, 377 P.2d
897]; Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 652–653 [55
Cal.Rptr. 94].)
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• Notice is more likely to be required in disputes between merchants. (See
Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357,
369–370 [62 Cal.Rptr.2d 701].)
• When required, notice must be pleaded and proved. (Vogel v. Thrifty Drug Co.
(1954) 43 Cal.2d 184, 188 [272 P.2d 1].)
• The purpose of the demand for notice is to protect the seller from stale claims
(Whitfield v. Jessup (1948) 31 Cal.2d 826, 828 [193 P.2d 1]; Metowski v. Traid
Corp. (1972) 28 Cal.App.3d 332, 339 [104 Cal.Rptr. 599]) and to give the
defendant an opportunity to repair the defective item, reduce damages, improve
products in the future, and negotiate settlements. (Pollard v. Saxe & Yolles
Development Co. (1974) 12 Cal.3d 374, 380 [115 Cal.Rptr. 648, 525 P.2d 88].)
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.28, 502.100 (Matthew Bender)
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1244. Affirmative Defense—Sophisticated User
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for any harm to [name of plaintiff] based on a failure to warn
because [name of plaintiff] is a sophisticated user of the [product]. To
succeed on this defense, [name of defendant] must prove that, at the time
of the injury, [name of plaintiff], because of [his/her/nonbinary pronoun]
particular position, training, experience, knowledge, or skill, knew or
should have known of the [product]’s risk, harm, or danger.
New October 2008; Revised December 2014
Directions for Use
Give this instruction as a defense to CACI No. 1205, Strict Liability—Failure to
Warn—Essential Factual Elements, or CACI No. 1222, Negligence—Manufacturer
or Supplier—Duty to Warn—Essential Factual Elements.
In some cases, it may be necessary to expand this instruction to state that the
plaintiff knew or should have known of the particular risk posed by the product, of
the severity of the potential consequences, and how to use the product to reduce or
avoid the risks, to the extent that information was known to the defendant. (See
Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 536 [166
Cal.Rptr.3d 202].)
Sources and Authority
• “A manufacturer is not liable to a sophisticated user of its product for failure to
warn of a risk, harm, or danger, if the sophisticated user knew or should have
known of that risk, harm, or danger.” (Johnson v. American Standard, Inc.
(2008) 43 Cal.4th 56, 71 [74 Cal.Rptr.3d 108, 179 P.3d 905].)
• “The sophisticated user defense exempts manufacturers from their typical
obligation to provide product users with warnings about the products’ potential
hazards. The defense is considered an exception to the manufacturer’s general
duty to warn consumers, and therefore, in most jurisdictions, if successfully
argued, acts as an affirmative defense to negate the manufacturer’s duty to
warn.” (Johnson, supra, 43 Cal.4th at p. 65, internal citation omitted.)
• “Under the sophisticated user defense, sophisticated users need not be warned
about dangers of which they are already aware or should be aware. Because
these sophisticated users are charged with knowing the particular product’s
dangers, the failure to warn about those dangers is not the legal cause of any
harm that product may cause. The rationale supporting the defense is that ‘the
failure to provide warnings about risks already known to a sophisticated
purchaser usually is not a proximate cause of harm resulting from those risks
suffered by the buyer’s employees or downstream purchasers.’ This is because
the user’s knowledge of the dangers is the equivalent of prior notice.” (Johnson,
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supra, 43 Cal.4th at p. 65, internal citations omitted.)
• “[T]he defense applies equally to strict liability and negligent failure to warn
cases. The duty to warn is measured by what is generally known or should have
been known to the class of sophisticated users, rather than by the individual
plaintiff’s subjective knowledge.” (Johnson, supra, 43 Cal.4th at pp. 65–66,
internal citations omitted.)
• “[A] manufacturer is not liable to a sophisticated user for failure to warn, even if
the failure to warn is a failure to provide a warning required by statute.”
(Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 556 [101
Cal.Rptr.3d 726].)
• “The sophisticated user defense concerns warnings. Sophisticated users ‘are
charged with knowing the particular product’s dangers.’ ‘The rationale
supporting the defense is that “the failure to provide warnings about risks
already known to a sophisticated purchaser usually is not a proximate cause of
harm resulting from those risks suffered by the buyer’s employees or
downstream purchasers.” [Citation.]’ [¶] [Plaintiff]’s design defect cause of
action was not concerned with warnings. Instead, he alleged that respondents’
design of their refrigerant was defective. We see no logical reason why a defense
that is based on the need for warning should apply.” (Johnson, supra, 179
Cal.App.4th at p. 559, internal citations omitted.)
• “The relevant time for determining user sophistication for purposes of this
exception to a manufacturer’s duty to warn is when the sophisticated user is
injured and knew or should have known of the risk.” (Johnson, supra, 43
Cal.4th at p. 73.)
• “Johnson did not impute an intermediary’s knowledge to the plaintiff, or charge
him with any knowledge except that which had been made available to him
through his training and which, by reason of his profession and certification, he
should have had. In contrast, [defendant]’s proposed instruction is not based on
the theory that [plaintiff] had the opportunity to acquire any knowledge of the
dangers of asbestos, let alone the obligation to do so. Instead, it contends that its
customers . . . knew or should have known (from public sources) of the dangers
of asbestos, and that its duty to warn [plaintiff] is measured by the knowledge
[the customers] should have had. It is apparent that such a theory has nothing to
do with Johnson.” (Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23,
28–29 [117 Cal.Rptr.3d 791].)
• “Thus, in actions by employees or servants, the critical issue concerns their
knowledge (or potential knowledge), rather than an intermediary’s sophistication.
[¶] This conclusion flows directly from [Restatement Third of Torts] section 388
itself. Under section 388, a supplier of a dangerous item to users ‘directly or
through a third person’ is subject to liability for a failure to warn, when the
supplier ‘has no reason to believe that those for whose use the [item] is supplied
will realize its dangerous condition.’ Accordingly, to avoid liability, there must
be some basis for the supplier to believe that the ultimate user knows, or should
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know, of the item’s hazards. In view of this requirement, the intermediary’s
sophistication is not, as matter of law, sufficient to avert liability; there must be a
sufficient reason for believing that the intermediary’s sophistication is likely to
operate to protect the user, or that the user is likely to discover the hazards in
some other manner. The fact that the user is an employee or servant of the
sophisticated intermediary cannot plausibly be regarded as a sufficient reason, as
a matter of law, to infer that the latter will protect the former. We therefore
reject [defendant]’s contention that an intermediary’s sophistication invariably
shields suppliers from liability to the intermediary’s employees or servants.”
(Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1296–1297 [164
Cal.Rptr.3d 112].)
• “In order to establish the defense, a manufacturer must demonstrate that
sophisticated users of the product know what the risks are, including the degree
of danger involved (i.e., the severity of the potential injury), and how to use the
product to reduce or avoid the risks, to the extent that information is known to
the manufacturer.” (Buckner, supra, 222 Cal.App.4th at p. 536.)
• “ ‘Under the “should have known” standard there will be some users who were
actually unaware of the dangers. However, the same could be said of the
currently accepted obvious danger rule; obvious dangers are obvious to most, but
are not obvious to absolutely everyone. The obvious danger rule is an objective
test, and the courts do not inquire into the user’s subjective knowledge in such a
case. In other words, even if a user was truly unaware of a product’s hazards,
that fact is irrelevant if the danger was objectively obvious. [Citations.] Thus,
under the sophisticated user defense, the inquiry focuses on whether the plaintiff
knew, or should have known, of the particular risk of harm from the product
giving rise to the injury.’ [Citation]” (Moran v. Foster Wheeler Energy Corp.
(2016) 246 Cal.App.4th 500, 511 [200 Cal.Rptr.3d 902].)
• “[S]peculation about a risk does not give rise to constructive knowledge of a risk
under the ‘should have known’ test.” (Scott v. Ford Motor Co. (2014) 224
Cal.App.4th 1492, 1501 [169 Cal.Rptr.3d 823], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1631, 1703,
1708–1709
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶ 2:1277 (The Rutter Group)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.185
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.246
(Matthew Bender)
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1245. Affirmative Defense—Product Misuse or Modification
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s claimed harm because the [product]
was [misused/ [or] modified] after it left [name of defendant]’s possession.
To succeed on this defense, [name of defendant] must prove that:
1. The [product] was [misused/ [or] modified] after it left [name of
defendant]’s possession; and
2. The [misuse/ [or] modification] was so highly extraordinary that
it was not reasonably foreseeable to [name of defendant], and
therefore should be considered as the sole cause of [name of
plaintiff]’s harm.
New April 2009; Revised December 2009, June 2011, December 2013
Directions for Use
Give this instruction if the defendant claims a complete defense to strict product
liability because the product was misused or modified after it left the defendant’s
possession and control in an unforeseeable way, and the evidence permits defendant
to argue that the subsequent misuse or modification was the sole cause of the
plaintiff’s injury. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) If misuse or modification was a substantial
factor contributing to, but not the sole cause of, plaintiff’s harm, there is no
complete defense, but the conduct of the plaintiff or of third parties may be
considered under principles of comparative negligence or fault. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 15–21 [56 Cal.Rptr.2d 455].) See CACI No.
1207A, Strict Liability—Comparative Fault of Plaintiff, and CACI No. 1207B, Strict
Liability—Comparative Fault of Third Person.
Third party negligence that is the immediate cause of an injury may be viewed as a
superseding cause if it is so highly extraordinary as to be unforeseeable. Product
misuse or modification may be deemed to be a superseding cause, which provides a
complete defense to liability. (See Torres, supra, 49 Cal.App. 4th at pp. 18–19.)
Element 2 incorporates this aspect of superseding cause as an explanation of what is
meant by “sole cause.” If misuse or modification truly were the sole cause, the
product would not be defective.
It would appear that at least one court views superseding cause as a different
standard from sole cause. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 685
[115 Cal.Rptr.3d 590] [product misuse may serve as a complete defense when the
misuse was so unforeseeable that it should be deemed the sole or superseding
cause], original italics.)
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Sources and Authority
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
abuse. . . . [T]he extent to which designers and manufacturers of dangerous
machinery are required to anticipate safety neglect presents an issue of fact. . . .
[A] manufacturer owes a foreseeable user of its product a duty to warn of risks
of using the product.’ ” (Wright v. Stang Mfg. Co. (1997) 54 Cal.App.4th 1218,
1235 [63 Cal.Rptr.2d 422].)
• “[P]roduct misuse [is] a defense to strict products liability only when the
defendant prove[s] that an unforeseeable abuse or alteration of the product after
it left the manufacturer’s hands was the sole reason that the product caused
injury.” (Campbell, supra, 22 Cal.3d at p. 56, original italics, internal citations
omitted.)
• “[S]trict liability should not be imposed upon a manufacturer when injury results
from a use of its product that is not reasonably foreseeable.” (Cronin v. J.B.E.
Olson Corp. (1972) 8 Cal.3d 121, 126 [104 Cal.Rptr. 433, 501 P.2d 1153].)
• “[Defendant] contends . . . that it cannot be held liable for any design defect
because the accident was attributable to the misuse of the rewinder by
[employer] and [plaintiff]. In order to avoid liability for product defect,
[defendant] was required to prove, as an affirmative defense, that [employer]’s
and [plaintiff]’s misuse of the machine . . . was an unforeseeable, superseding
cause of the injury to [plaintiff].” Perez, supra, 188 Cal.App.4th at pp. 679–680.)
• “[P]roduct misuse may serve as a complete defense when the misuse ‘was so
unforeseeable that it should be deemed the sole or superseding cause.’ . . .
‘[T]he defense of “superseding cause . . .” . . . absolves a tortfeasor, even
though his [or her] conduct was a substantial contributing factor, when an
independent event intervenes in the chain of causation, producing harm of a kind
and degree so far beyond the risk the original tortfeasor should have foreseen
that the law deems it unfair to hold him responsible. [Citations.]’ Here, the trial
court reasonably concluded, in substance, that [plaintiff]’s misuse of the rewinder
was so extreme as to be the sole cause of his injury. That conclusion dispensed
with the need to apply principles of comparative fault.” (Perez, supra, 188
Cal.App.4th at p. 685, original italics.)
• “Third party negligence which is the immediate cause of an injury may be
viewed as a superseding cause when it is so highly extraordinary as to be
unforeseeable. ‘The foreseeability required is of the risk of harm, not of the
particular intervening act. In other words, the defendant may be liable if his
conduct was ‘a substantial factor’ in bringing about the harm, though he neither
foresaw nor should have foreseen the extent of the harm or the manner in which
it occurred.’ It must appear that the intervening act has produced ‘harm of a kind
and degree so far beyond the risk the original tortfeasor should have foreseen
that the law deems it unfair to hold him responsible.’ ” (Torres, supra, 49
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Cal.App.4th at pp. 18–19, internal citations omitted.)
• “ ‘Misuse’ is a defense only when that misuse is the actual cause of the
plaintiff’s injury, not when some other defect produces the harm. This causation
is one of the elements of the ‘misuse’ affirmative defense and thus the burden
falls on the defendant to prove it.” (Huynh v. Ingersoll-Rand (1993) 16
Cal.App.4th 825, 831 [20 Cal.Rptr.2d 296], internal citation omitted.)
• “[Defendant] further contends that [plaintiff]’s injuries arose not from a defective
product, but rather, from his parents’ modification of the product or their
negligent supervision of its use. These arguments cannot be advanced by
demurrer. Creation of an unreasonable risk of harm through product modification
or negligent supervision is not clearly established on the face of [plaintiff]’s
complaint. Instead, these theories must be pled as affirmative defenses.”
(Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229
Cal.Rptr. 605].)
• “[Defendant]’s alternative contention [plaintiff]’s failure to safely store the Glock
21 was the sole proximate cause of his injuries is not an appropriate ground for
granting summary judgment. Product misuse, an affirmative defense, is a
superseding cause of injury that absolves a tortfeasor of his or her own wrongful
conduct only when the misuse was ‘ “so highly extraordinary as to be
unforeseeable.” ’ [citing this instruction] ‘However, foreseeability is a question
for the jury unless undisputed facts leave no room for a reasonable difference of
opinion.’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308 [144
Cal.Rptr.3d 326], internal citations omitted.)
• “[T]here are cases in which the modification of a product has been determined to
be so substantial and unforeseeable as to constitute a superseding cause of an
injury as a matter of law. However, foreseeability is a question for the jury
unless undisputed facts leave no room for a reasonable difference of opinion.
Thus, the issue of superseding cause is generally one of fact. Superseding cause
has been viewed as an issue of fact even in cases where ‘safety neglect’ by an
employer has increased the risk of injury, or modification of the product has
made it more dangerous.” (Torres, supra, 49 Cal.App.4th at p. 19, internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1696, 1697
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶ 2:1329 et seq. (The Rutter Group)
California Product Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.13[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.183
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.201
(Matthew Bender)
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1246. Affirmative Defense—Design Defect—Government
Contractor
[Name of defendant] may not be held liable for design defects in the
[product] if it proves all of the following:
1. That [name of defendant] contracted with the United States
government to provide the [product] for military use;
2. That the United States approved reasonably precise specifications
for the [product];
3. That the [product] conformed to those specifications; and
4. That [name of defendant] warned the United States about the
dangers in the use of the [product] that were known to [name of
defendant] but not to the United States.
New June 2010; Revised December 2010
Directions for Use
This instruction is for use if the defendant’s product whose design is challenged was
provided to the United States government for military use. The essence of the
defense is that the plaintiff should not be able to impose on a government contractor
a duty under state law that is contrary to the duty imposed by the government
contract. (See Boyle v. United Technologies Corp. (1988) 487 U.S. 500, 508–509
[108 S.Ct. 2510, 101 L.Ed.2d 442].)
It has been stated that the defense is not limited to military contracts (see Oxford v.
Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 710 [99 Cal.Rptr.3d 418]), though
no California court has expressly so held.
Different standards and elements apply in a failure-to-warn case. For an instruction
for use in such a case, see CACI No. 1247, Affırmative Defense—Failure to
Warn—Government Contractor.
Sources and Authority
• “The [United States] Supreme Court noted that in areas of ‘ “uniquely federal
interests” ’ state law may be preempted or displaced by federal law, and that
civil liability arising from the performance of federal procurement contracts is
such an area. The court further determined that preemption or displacement of
state law occurs in an area of uniquely federal interests only where a
‘ “significant conflict” ’ exists between an identifiable federal policy or interest
and the operation of state law. The court concluded that ‘state law which holds
Government contractors liable for design defects in military equipment does in
some circumstances present a “significant conflict” with federal policy and must
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be displaced.’ ” (Oxford, supra, 177 Cal.App.4th at p. 708, quoting Boyle, supra,
487 U.S. at pp. 500, 504, 507, 512.)
• “Liability for design defects in military equipment cannot be imposed, pursuant
to state law, when (1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and (3) the
supplier warned the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States. The first two of
these conditions assure that the suit is within the area where the policy of the
‘discretionary function’ would be frustrated—i.e., they assure that the design
feature in question was considered by a Government officer, and not merely by
the contractor itself. The third condition is necessary because, in its absence, the
displacement of state tort law would create some incentive for the manufacturer
to withhold knowledge of risks, since conveying that knowledge might disrupt
the contract but withholding it would produce no liability. We adopt this
provision lest our effort to protect discretionary functions perversely impede
them by cutting off information highly relevant to the discretionary decision.”
(Boyle, supra, 487 U.S. at pp. 512–513.)
• “[T]he fact that a company supplies goods to the military does not, in and of
itself, immunize it from liability for the injuries caused by those goods. Where
the goods ordered by the military are those readily available, in substantially
similar form, to commercial users, the military contractor defense does not
apply.” (In re Hawaii Federal Asbestos Cases (9th Cir. 1992) 960 F.2d 806,
811.)
• “[W]here a purchase does not involve ‘reasonably precise specifications’ bearing
on the challenged design feature, the government necessarily has not made a
considered evaluation of and affirmative judgment call about the design.” (Kase
v. Metalclad Insulation Corp. (2016) 6 Cal.App.5th 623, 628 [212 Cal.Rptr.3d
198].)
• “In our view, if a product is produced according to military specifications and
used by the military because of particular qualities which serve a military
purpose, and is incidentally sold commercially as well, that product may
nonetheless still qualify as military equipment under the military contractor
defense.” (Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1319 [273
Cal.Rptr. 214]; see also Kase, supra, 6 Cal.App.5th at p. 637 [“We continue to
agree with Jackson and Oxford that a product’s commercial availability does not
necessarily foreclose the government contractor defense.”].)
• “While courts such as the court in Hawaii have sought to confine the
government contractor defense to products that are made exclusively for the
military, we agree with the court in Jackson that this limitation is unduly
confining. Though the court in Boyle discussed the parameters of the contractor
defense in terms of ‘military equipment,’ use of that term appears to have
followed from the facts of that case. Other courts considering this issue have
concluded the defense is not limited to military contracts. . . . [Boyle’s]
application focuses instead on whether the issue or area is one involving
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‘uniquely federal interests’ and, if so, whether the application of state law
presents a ‘significant conflict’ with federal policy.” (Oxford, supra, 177
Cal.App.4th at p. 710; the split on this issue in the federal and other state courts
is noted in Carley v. Wheeled Coach (3d Cir. 1993) 991 F.2d 1117, 1119, fn. 1.)
• “[T]he Supreme Court in Boyle did not expressly limit its holding to products
liability causes of action. Thus, the government contractor defense is applicable
to related negligence claims.” (Oxford, supra, 177 Cal.App.4th at p. 711.)
• “[I]n order to satisfy the first condition—government ‘approval’ . . . the
government’s involvement must transcend rubber stamping.” (Oxford, supra, 177
Cal.App.4th at p. 712.)
• “[A]pproval must result from a ‘continuous exchange’ and ‘back and forth
dialogue’ between the contractor and the government. When the government
engages in a thorough review of the allegedly defective design and takes an
active role in testing and implementing that design, Boyle’s first element is met.”
(Getz v. Boeing Co. (9th Cir. 2011) 654 F.3d 852, 861, internal citation omitted.)
• “[T]he operative test for conformity with reasonably precise specifications turns
on whether ‘the alleged defect . . . exist[ed] independently of the design
itself.’ ‘To say that a product failed to conform to specifications is just another
way of saying that it was defectively manufactured.’ Therefore, absent some
evidence of a latent manufacturing defect, a military contractor can establish
conformity with reasonably precise specifications by showing ‘[e]xtensive
government involvement in the design, review, development and testing of a
product’ and by demonstrating ‘extensive acceptance and use of the product
following production.’ ” (Getz, supra, 654 F.3d at p. 864, internal citations
omitted.)
• “Although the source of the government contractor defense is the United States’
sovereign immunity, we have explicitly stated that ‘the government contractor
defense does not confer sovereign immunity on contractors.’ ” (Rodriguez v.
Lockheed Martin Corp. (9th Cir. 2010) 627 F.3d 1259, 1265.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1704
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict Liability
For Defective Products, ¶¶ 2:1270, 2:1316, 2:1631 (The Rutter Group)
1 California Products Liability Actions, Ch. 8, Defenses, § 8.05 (Matthew Bender)
2 Levy et al., California Torts, Ch. 21, Aviation Tort Law, § 21.02[6] (Matthew
Bender)
2 California Forms of Pleading and Practice, Ch. 16, Airplanes and Airports,
§ 16.10[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.104[23] (Matthew Bender)
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1247. Affirmative Defense—Failure to Warn—Government
Contractor
[Name of defendant] may not be held liable for failure to warn about the
dangers in the use of the [product] if it proves all of the following:
1. That [name of defendant] contracted with the United States
government to provide the [product] for military use;
2. That the United States imposed reasonably precise specifications
on [name of defendant] regarding the provision of warnings for the
[product];
3. That the [product] conformed to those specifications regarding
warnings; and
4. That [name of defendant] warned the United States about the
dangers in the use of the [product] that were known to [name of
defendant] but not to the United States.
New December 2010
Directions for Use
This instruction is for use if the defendant’s product about which a failure to warn is
alleged (see CACI No. 1205, Strict Liability—Failure to Warn—Essential Factual
Elements, and CACI No. 1222, Negligence—Manufacturer or Supplier—Duty to
Warn—Essential Factual Elements) was provided to the United States government
for military use. The essence of the defense is that the plaintiff should not be able to
impose on a government contractor a duty under state law that is contrary to the
duty imposed by the government contract. (See Boyle v. United Technologies Corp.
(1988) 487 U.S. 500, 508–509 [108 S.Ct. 2510, 101 L.Ed.2d 442].)
It has been stated that the defense is not limited to military contracts (see Oxford v.
Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 710 [99 Cal.Rptr.3d 418]), though
no California court has expressly so held.
Different standards and elements apply in a design defect case. For an instruction
for use in such a case, see CACI No. 1246, Affırmative Defense—Design
Defect—Government Contractor.
Sources and Authority
• “The appellate court in Tate [Tate v. Boeing Helicopters (6th Cir. 1995) 55 F.3d
1150, 1157] offered an alternative test for applying the government contractor
defense in the context of failure to warn claims: ‘When state law would
otherwise impose liability for a failure to warn of dangers in using military
equipment, that law is displaced if the contractor can show: (1) the United States
exercised its discretion and approved the warnings, if any; (2) the contractor
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provided warnings that conformed to the approved warnings; and (3) the
contractor warned the United States of the dangers in the equipment’s use about
which the contractor knew, but the United States did not.’ ” (Oxford, supra, 177
Cal.App.4th at p. 712.)
• “As in design defect cases, in order to satisfy the first condition—government
‘approval’—in failure to warn cases, the government’s involvement must
transcend rubber stamping. And where the government goes beyond approval
and actually determines for itself the warnings to be provided, the contractor has
surely satisfied the first condition because the government exercised its
discretion. The second condition in failure to warn cases, as in design defect
cases, assures that the defense protects the government’s, not the contractor’s,
exercise of discretion. Finally, the third condition encourages frank
communication to the government of the equipment’s dangers and increases the
likelihood that the government will make a well-informed judgment.” (Oxford,
supra, 177 Cal.App.4th at p. 712, quoting Tate, supra, 55 F.3d at p. 1157.)
• “Under California law, a manufacturer has a duty to warn of a danger when the
manufacturer has knowledge of the danger or has reason to know of it and has
no reason to know that those who use the product will realize its dangerous
condition. Whereas the government contractor’s defense may be used to trump a
design defect claim by proving that the government, not the contractor, is
responsible for the defective design, that defense is inapplicable to a failure to
warn claim in the absence of evidence that in making its decision whether to
provide a warning . . . , [defendant] was ‘acting in compliance with “reasonably
precise specifications” imposed on [it] by the United States.’ ” (Butler v. Ingalls
Shipbuilding (9th Cir. 1996) 89 F.3d 582, 586.)
• “In a failure-to-warn action, where no conflict exists between requirements
imposed under a federal contract and a state law duty to warn, regardless of any
conflict which may exist between the contract and state law design requirements,
Boyle commands that we defer to the operation of state law.” (Butler, supra, 89
F.3d at p. 586.)
• “Defendants’ evidence did not establish as a matter of law the necessary
significant conflict between federal contracting requirements and state law.
Although defendants’ evidence did show that certain warnings were required by
the military specifications, that evidence did not establish that the specifications
placed any limitation on additional information from the manufacturers to users
of their products. Instead, the evidence suggested no such limitation existed.”
(Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1317 [273 Cal.Rptr. 214].)
• “The [United States] Supreme Court noted that in areas of ‘ “uniquely federal
interests” ’ state law may be preempted or displaced by federal law, and that
civil liability arising from the performance of federal procurement contracts is
such an area. The court further determined that preemption or displacement of
state law occurs in an area of uniquely federal interests only where a
‘ “significant conflict” ’ exists between an identifiable federal policy or interest
and the operation of state law.” (Oxford, supra, 177 Cal.App.4th at p. 708,
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PRODUCTS LIABILITY CACI No. 1247
quoting Boyle, supra, 487 U.S. at pp. 500, 504, 507, 512.)
• “[T]he Supreme Court in Boyle did not expressly limit its holding to products
liability causes of action. Thus, the government contractor defense is applicable
to related negligence claims.” (Oxford, supra, 177 Cal.App.4th at p. 711.)
• “[T]he fact that a company supplies goods to the military does not, in and of
itself, immunize it from liability for the injuries caused by those goods. Where
the goods ordered by the military are those readily available, in substantially
similar form, to commercial users, the military contractor defense does not
apply.” (In re Hawaii Federal Asbestos Cases (9th Cir. 1992) 960 F.2d 806,
811.)
• “In our view, if a product is produced according to military specifications and
used by the military because of particular qualities which serve a military
purpose, and is incidentally sold commercially as well, that product may
nonetheless still qualify as military equipment under the military contractor
defense.” (Jackson, supra, 223 Cal.App.3d at p. 1319.)
• “While courts such as the court in Hawaii have sought to confine the
government contractor defense to products that are made exclusively for the
military, we agree with the court in Jackson that this limitation is unduly
confining. Though the court in Boyle discussed the parameters of the contractor
defense in terms of ‘military equipment,’ use of that term appears to have
followed from the facts of that case. Other courts considering this issue have
concluded the defense is not limited to military contracts. . . . [Boyle’s]
application focuses instead on whether the issue or area is one involving
‘uniquely federal interests’ and, if so, whether the application of state law
presents a ‘significant conflict’ with federal policy.” (Oxford, supra, 177
Cal.App.4th at p. 710; the split on this issue in the federal and other state courts
is noted in Carley v. Wheeled Coach (3d Cir. 1993) 991 F.2d 1117, 1119, fn. 1.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1704
1 California Products Liability Actions, Ch. 8, Defenses, § 8.05 (Matthew Bender)
2 Levy et al., California Torts, Ch. 21, Aviation Tort Law, § 21.02[6] (Matthew
Bender)
2 California Forms of Pleading and Practice, Ch. 16, Airplanes and Airports,
§ 16.10[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.104[23] (Matthew Bender)
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1248. Affirmative Defense—Inherently Unsafe Consumer Product
(Civ. Code, § 1714.45)
[Name of defendant] claims that it is not responsible for [name of
plaintiff]’s claimed harm because [specify product] is an inherently unsafe
consumer product. To succeed on this defense, [name of defendant] must
prove all of the following:
1. That [product] is a common consumer product intended for
personal consumption; and
2. That [product] is inherently unsafe;
3. But [product] is no more dangerous than what an ordinary
consumer of the product with knowledge common to the
community would expect.
New June 2016
Directions for Use
This instruction sets forth an immunity defense to product liability for a product that
is clearly recognizable as inherently dangerous. (See Civ. Code, § 1714.45(a).) The
statute requires that the product be “a common consumer product intended for
personal consumption, such as sugar, castor oil, alcohol, and butter, as identified in
comment i to Section 402A of the Restatement (Second) of Torts.” (Civ. Code,
§ 1714.45(a)(2).) This reference is perhaps somewhat confusing because the
Restatement comment makes it clear that sugar, castor oil, alcohol, and butter are
not unreasonably dangerous. The implication from the statutory references is that
although they are not unreasonably dangerous, they are inherently unsafe and thus
within the protection provided to the manufacturer by the statute.
Sources and Authority
• Nonliability for Inherently Unsafe Consumer Product. Civil Code section
1714.45.
• Comment i to Section 402A of the Restatement (Second) of Torts provides:
“Unreasonably dangerous. The rule stated in this Section applies only where the
defective condition of the product makes it unreasonably dangerous to the user
or consumer. Many products cannot possibly be made entirely safe for all
consumption, and any food or drug necessarily involves some risk of harm, if
only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and
castor oil found use under Mussolini as an instrument of torture. That is not
what is meant by “unreasonably dangerous” in this Section. The article sold
must be dangerous to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common to
the community as to its characteristics. Good whiskey is not unreasonably
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dangerous merely because it will make some people drunk, and is especially
dangerous to alcoholics; but bad whiskey, containing a dangerous amount of
fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably
dangerous merely because the effects of smoking may be harmful; but tobacco
containing something like marijuana may be unreasonably dangerous. Good
butter is not unreasonably dangerous merely because, if such be the case, it
deposits cholesterol in the arteries and leads to heart attacks; but bad butter,
contaminated with poisonous fish oil, is unreasonably dangerous.”
• “Additional limitations on the scope of the immunity may be deduced from the
history and purpose of the Immunity Statute . . . .The statute’s express premise
. . . was ‘that suppliers of certain products which are “inherently unsafe,” but
which the public wishes to have available despite awareness of their dangers,
should not be responsible in tort for resulting harm to those who voluntarily
consumed the products despite such knowledge.’ . . . [T]he Immunity Statute
[is] based on the principle that ‘if a product is pure and unadulterated, its
inherent or unavoidable danger, commonly known to the community which
consumes it anyway, does not expose the seller to liability for resulting harm to
a voluntary user.’ ” (Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th
856, 862 [123 Cal.Rptr.2d 61, 50 P.3d 769], internal citations omitted.)
• “The law should not ignore interactive effects that might render a product more
dangerous than is contemplated by the ordinary consumer who purchases it and
possesses the ordinary knowledge common to the community as to the product’s
characteristics. Therefore, when a court addresses whether a multi-ingredient
product is a common consumer product for purposes of Civil Code section
1714.45 and the ingredients have an interactive effect, the product and its
inherent dangers must be considered as a whole so that the interactive effects of
its ingredients are not overlooked or trivialized.” (Fiorini v. City Brewing Co.,
LLC (2014) 231 Cal.App.4th 306, 325 [179 Cal.Rptr.3d 827].)
• “The foregoing inferences preclude us from finding, as a matter of law, that
[product] was a common consumer product for purposes of Civil Code section
1714.45, subdivision (a). As a result, that factual question should be presented to
the trier of fact.” (Fiorini, supra, 231 Cal.App.4th at p. 326, footnote omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1930 et seq.
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.11[5] (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.04
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.70 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.80A et seq.
(Matthew Bender)
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1249. Affirmative Defense—Reliance on Knowledgeable
Intermediary
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for any harm to [name of plaintiff] based on a failure to warn
because [name of defendant] sold [specify product, e.g., asbestos] to an
intermediary purchaser [name of intermediary]; and [name of defendant]
relied on [name of intermediary] to provide adequate warnings to end
users of [e.g., asbestos]. To succeed on this defense, [name of defendant]
must prove:
1. That [name of defendant] sold [specify product, e.g., asbestos] to
[name of intermediary];
[2. That [name of defendant] conveyed adequate warnings of the
particular risks in the use of [e.g., asbestos] to [name of
intermediary].]
[2. [or]
[2. That [name of defendant] knew that [name of intermediary] was
aware of, or should have been aware of, the particular risks of
[e.g., asbestos];]
[2. and
3. That [name of defendant] actually and reasonably relied on [name
of intermediary] to convey adequate warnings of the particular
risks in the use of [e.g., asbestos] to those who, like [name of
plaintiff], might encounter the risk of [e.g., asbestos].
3. Reasonable reliance depends on many factors, including, but not
limited to:
a. The degree of risk posed by [e.g., asbestos];
b. The feasibility of [name of defendant]’s directly warning those
who might encounter [e.g., asbestos] in a finished product; and
c. The likelihood that the intermediary purchaser will convey
warnings.
c. In determining the likelihood that [name of intermediary] would
convey adequate warnings, consider what a supplier of [e.g.,
asbestos] should know about [name of intermediary]. Factors to
consider include, but are not limited to:
(1) Whether [name of intermediary] knew or should have been
aware of the specific risks posed by [e.g., asbestos];
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(2) Whether [name of intermediary] had a reputation for
carefulness; and
(3) Whether [name of intermediary] was willing to, and had the
ability to, communicate adequate warnings to end users.
New May 2017
Directions for Use
Give this instruction if the defendant supplier of materials claims that it gave
warnings to an intermediary purchaser or relied on an intermediary purchaser to
provide warnings to end users of the product. Reasonable reliance on an
intermediary is an affirmative defense to a claim of failure to warn under both strict
liability and negligence theories. (See Webb v. Special Electric Co., Inc. (2016) 63
Cal.4th 167, 187 [202 Cal.Rptr.3d 460, 370 P.3d 1022].)
This instruction sets forth all of the elements of the defense. The reasonableness of
the defendant’s reliance under factors a–c on the intermediary to warn end users is a
question of fact. (Webb, supra, 63 Cal.4th at p. 180.)
Sources and Authority
• “When a hazardous raw material is supplied for any purpose, including the
manufacture of a finished product, the supplier has a duty to warn about the
material’s dangers. Under the sophisticated intermediary doctrine, the supplier
can discharge this duty if it conveys adequate warnings to the material’s
purchaser, or sells to a sufficiently sophisticated purchaser, and reasonably relies
on the purchaser to convey adequate warnings to others, including those who
encounter the material in a finished product. Reasonable reliance depends on
many circumstances, including the degree of risk posed by the material, the
likelihood the purchaser will convey warnings, and the feasibility of directly
warning end users. The doctrine balances the competing policies of
compensating those injured by dangerous products and encouraging conduct that
can feasibly be performed.” (Webb, supra, 63 Cal.4th at p. 177.)
• “To establish a defense under the sophisticated intermediary doctrine, a product
supplier must show not only that it warned or sold to a knowledgeable
intermediary, but also that it actually and reasonably relied on the intermediary
to convey warnings to end users. This inquiry will typically raise questions of
fact for the jury to resolve unless critical facts establishing reasonableness are
undisputed.” (Webb, supra, 63 Cal.4th at pp. 189–190.)
• “Because the sophisticated intermediary doctrine is an affirmative defense, the
supplier bears the burden of proving that it adequately warned the intermediary,
or knew the intermediary was aware or should have been aware of the specific
hazard, and reasonably relied on the intermediary to transmit warnings.” (Webb,
supra, 63 Cal.4th at p. 187.)
• “Like the sophisticated user defense, the sophisticated intermediary defense
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applies to failure to warn claims sounding in either strict liability or negligence.
As we have previously observed, ‘there is little functional difference between the
two theories in the failure to warn context.’ ‘[I]n failure to warn cases, whether
asserted on negligence or strict liability grounds, there is but one unitary theory
of liability which is negligence based—the duty to use reasonable care in
promulgating a warning.’ ” (Webb, supra, 63 Cal.4th at p. 187, internal citations
omitted.)
• “The goal of products liability law is not merely to spread risk but also ‘to
“induce conduct that is capable of being performed.” ’ The sophisticated
intermediary doctrine serves this goal by recognizing a product supplier’s duty to
warn but permitting the supplier to discharge this duty in a responsible and
practical way. It appropriately and equitably balances the practical realities of
supplying products with the need for consumer safety.” (Webb, supra, 63 Cal.4th
at p. 187, internal citation omitted.)
• “The ‘gravity’ of risk factor encompasses both the ‘serious or trivial character of
the harm’ that is possible and the likelihood that this harm will result. This
factor focuses on the nature of the material supplied. If the substance is
extremely dangerous, the supplier may need to take additional steps, such as
inquiring about the intermediary’s warning practices, to ensure that warnings are
communicated. The overarching question is the reasonableness of the supplier’s
conduct given the potential severity of the harm.” (Webb, supra, 63 Cal.4th at p.
190, internal citation omitted.)
• “The second Restatement factor, measuring the likelihood that the intermediary
will warn, focuses on the reliability of the intermediary. The supplier’s
knowledge about the intermediary’s reliability is judged by an objective standard,
based on what a reasonable supplier would have known under the circumstances.
Relevant concerns for this factor include, for example, the intermediary’s level
of knowledge about the hazard, its reputation for carefulness or consideration,
and its willingness, and ability, to communicate adequate warnings to end users.
Of course, a supplier is always free to inquire about the intermediary’s warning
policies and practices as a means of assessing the intermediary’s reliability. The
Second Restatement suggests economic motivations may also be important. For
example, an intermediary manufacturer may have an incentive to withhold
necessary information about a component material if warnings would make its
product less attractive.” (Webb, supra, 63 Cal.4th at p. 190, internal citations
omitted.)
• “It is also significant if, under the circumstances giving rise to the plaintiff’s
claim, the intermediary itself had a legal duty to warn end users about the
particular hazard in question. In general, ‘ “every person has a right to presume
that every other person will perform his duty and obey the law.” ’ As the
Restatement notes, ‘[m]odern life would be intolerable unless one were permitted
to rely to a certain extent on others’ doing what they normally do, particularly if
it is their duty to do so.’ This consideration may be especially relevant in the
context of a raw material or other component supplied for use in making a
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finished product. Under California law, a product manufacturer has a legal duty
to warn its customers of all known or knowable dangers arising from use of the
product. However, regardless of the purchaser’s independent duty, the supplier
cannot reasonably ignore known facts that would provide notice of a substantial
risk that the intermediary might fail to warn or that warnings might fail to reach
the consumer.” (Webb, supra, 63 Cal.4th at p. 191, internal citations omitted.)
• “When raw materials are supplied in bulk for the manufacture of a finished
product, it may be difficult for the supplier to convey warnings to the product’s
ultimate consumers. These suppliers likely have no way to identify ultimate
product users and no ready means to communicate with them.” (Webb, supra, 63
Cal.4th at p. 191.)
• “We recognize that direct proof of actual reliance may be difficult to obtain
when, as in the case of latent disease, the material was supplied to an
intermediary long ago. However, actual reliance is an inference the factfinder
should be able to draw from circumstantial evidence about the parties’ dealings.”
(Webb, supra, 63 Cal.4th at p. 193.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1321
1 California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.21[3][c] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.11[10][b] (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.263 et seq.
(Matthew Bender)
1250–1299. Reserved for Future Use
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VF-1200. Strict Products Liability—Manufacturing
Defect—Comparative Fault at Issue
We answer the questions submitted to us as follows:
1. Did [name of defendant] [manufacture/distribute/sell] the
[product]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [product] contain a manufacturing defect when it left
[name of defendant]’s possession?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the manufacturing defect a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages? Do not reduce the
damages based on the fault, if any, of [name of plaintiff] or [name/
description of other person].
[a. Past economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
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(3) [medical expenses $ ]
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
4. If [name of plaintiff] has proved any damages, answer question 5.
If [name of plaintiff] has not proved any damages, then stop here,
answer no further questions, and have the presiding juror sign
and date this form.
5. Was [name of plaintiff] negligent?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, insert the number zero next to [name of plaintiff]’s
name in question 9 and answer question 7.
6. Was [name of plaintiff]’s negligence a substantial factor in causing
[his/her/nonbinary pronoun] harm?
6. Yes No
6. If your answer to question 6 is yes, then answer questions 7 and
9. If you answered no, insert the number zero next to [name of
plaintiff]’s name in question 9 and answer question 7.
7. Was [name/description of other person] negligent?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, insert the number zero next to [name/description of
other person]’s name in question 9.
8. Was [name/description of other person]’s negligence a substantial
factor in causing harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, insert the number zero next to [name/description of
other person]’s name in question 9.
9. What percentage of responsibility for [name of plaintiff]’s harm do
you assign to:
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VF-1200 PRODUCTS LIABILITY
[Name of defendant]: %
[Name of plaintiff]: %
[Name/description of other person]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, June 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 1201, Strict Liability—Manufacturing
Defect—Essential Factual Elements, CACI No. 1207A, Strict
Liability—Comparative Fault of Plaintiff, and CACI No. 1207B, Strict
Liability—Comparative Fault of Third Person. If product misuse or modification is
alleged as a complete defense (see CACI No. 1245, Affırmative Defense—Product
Misuse or Modification), questions 2 and 3 of CACI No. VF-1201, Strict Products
Liability—Design Defect—Consumer Expectation Test—Affırmative Defense—Misuse
or Modification, may be included after question 1.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the negligence or fault of more than one third person is alleged to have
contributed to the plaintiff’s injury, repeat questions 7 and 8.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1201. Strict Products Liability—Design Defect—Affirmative
Defense—Misuse or Modification
We answer the questions submitted to us as follows:
1. Did [name of defendant] [manufacture/distribute/sell] the
[product]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the [product] [misused/ [or] modified] after it left [name of
defendant]’s possession in a way that was so highly extraordinary
that it was not reasonably foreseeable to [him/her/nonbinary
pronoun/it]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, skip question 3 and answer question 4.
3. Was the [misuse/ [or] modification] the sole cause of [name of
plaintiff]’s harm?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[4. Is the [product] one about which an ordinary consumer can form
reasonable minimum safety expectations?
[4. Yes No
[4. If your answer to question 4 is yes, answer question 5. If your
answer is no, skip question 5 and answer question 6.]
[5. Did the [product] fail to perform as safely as an ordinary
consumer would have expected when used or misused in an
intended or reasonably foreseeable way?
[5. Yes No
[5. Regardless of your answer to question 5, answer question 6.]
[6. Did the benefits of the [product]’s design outweigh the risks of the
design?
[6. Yes No
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[6. If your answer to question 5 is yes or your answer to question 6
is no, answer question 7. If you answered no to question 5 and
yes to question 6, stop here, answer no further questions, and
have the presiding juror sign and date this form.]
7. Was the [product]’s design a substantial factor in causing harm to
[name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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PRODUCTS LIABILITY VF-1201
New September 2003; Revised October 2004, April 2007, April 2009, December
2010, June 2011, December 2011, December 2014, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 1203, Strict Liability—Design
Defect—Consumer Expectation Test—Essential Factual Elements, CACI No. 1204,
Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements—Shifting Burden of Proof, and CACI No. 1245, Affırmative
Defense—Product Misuse or Modification. If the comparative fault or negligence of
the plaintiff or of third persons is at issue, questions 6 through 9 of CACI No. VF-
1200, Strict Products Liability—Manufacturing Defect—Comparative Fault at Issue,
may be added at the end.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form can be used in a case in which the jury will decide design defect
under both the consumer expectation and the risk-benefit tests. If only the risk-
benefit test is at issue, omit questions 4 and 5. If only the consumer expectation test
is at issue, omit question 6. Modify the transitional language following questions 5
and 6 if only one test is at issue in the case. Include question 4 if the court has
decided to give to the jury the preliminary question as to whether the consumer
expectation test can be applied to the product at issue in the case. (See Saller v.
Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233–1234 [115
Cal.Rptr.3d 151].) An additional question may be needed if the defendant claims
that the plaintiff’s injuries were caused by some product other than the defendant’s.
If specificity is not required, users do not have to itemize all the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-1202. Strict Products Liability—Design Defect—Risk-Benefit
Test
Revoked December 2014; See CACI No. VF-1201
814
Copyright Judicial Council of California
VF-1203. Strict Products Liability—Failure to Warn
We answer the questions submitted to us as follows:
1. Did [name of defendant] [manufacture/distribute/sell] the
[product]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [product] have potential [risks/side effects/allergic
reactions] that were [known/ [or] knowable in light of the
[scientific/ [and] medical] knowledge that was generally accepted
in the scientific community] at the time of
[manufacture/distribution/sale]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the potential [risks/side effects/allergic reactions] present a
substantial danger to persons using or misusing the [product] in
an intended or reasonably foreseeable way?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would ordinary consumers have recognized the potential [risks/
side effects/allergic reactions]?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] fail to adequately warn [or instruct] of
the potential [risks/side effects/allergic reactions]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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VF-1203 PRODUCTS LIABILITY
6. Was the lack of sufficient [instructions] [or] [warnings] a
substantial factor in causing harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2010, June 2011,
December 2011, December 2016
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PRODUCTS LIABILITY VF-1203
Directions for Use
This verdict form is based on CACI No. 1205, Strict Liability—Failure to
Warn—Essential Factual Elements. If product misuse or modification is alleged as a
complete defense (see CACI No. 1245, Affırmative Defense—Product Misuse or
Modification), questions 2 and 3 of CACI No. VF-1201, Strict Products
Liability—Design Defect—Consumer Expectation Test—Affırmative Defense—Misuse
or Modification, may be included after question 1. If the comparative fault or
negligence of the plaintiff or of third persons is at issue, questions 7 through 9 of
CACI No. VF-1200, Strict Products Liability—Manufacturing Defect—Comparative
Fault at Issue, may be added at the end.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-1204. Products Liability—Negligence—Comparative Fault of
Plaintiff at Issue
We answer the questions submitted to us as follows:
1. Did [name of defendant] [design/manufacture/supply/install/inspect/
repair/rent] the [product]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] negligent in [designing/manufacturing/
supplying/installing/inspecting/repairing/renting] the [product]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s negligence a substantial factor in
causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s total damages? Do not reduce the
damages based on the fault, if any, of [name of plaintiff].
[a. Past economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
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PRODUCTS LIABILITY VF-1204
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
4. If [name of plaintiff] has proved any damages, answer question 5.
If [name of plaintiff] has not proved any damages, then stop here,
answer no further questions, and have the presiding juror sign
and date this form.
5. Was [name of plaintiff] negligent?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff]’s negligence a substantial factor in causing
[his/her/nonbinary pronoun] harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What percentage of responsibility for [name of plaintiff]’s harm do
you assign to:
[Name of defendant]: %
[Name of plaintiff]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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VF-1204 PRODUCTS LIABILITY
New September 2003; Revised April 2007, December 2009, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1220, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-1205. Products Liability—Negligent Failure to Warn
We answer the questions submitted to us as follows:
1. Did [name of defendant] [manufacture/distribute/sell] the
[product]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know or should [he/she/nonbinary
pronoun/it] reasonably have known that the [product] was
dangerous or was likely to be dangerous when used or misused in
a reasonably foreseeable manner?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know or should [he/she/nonbinary
pronoun/it] reasonably have known that users would not realize
the danger?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] fail to adequately warn of the danger [or
instruct on the safe use of] the [product]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Would a reasonable [manufacturer/distributor/seller] under the
same or similar circumstances have warned of the danger [or
instructed on the safe use of] the [product]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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VF-1205 PRODUCTS LIABILITY
6. Was [name of defendant]’s failure to warn a substantial factor in
causing harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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PRODUCTS LIABILITY VF-1205
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 1222, Negligence—Manufacturer or
Supplier—Duty to Warn—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1206. Products Liability—Express Warranty—Affirmative
Defense—Not “Basis of Bargain”
We answer the questions submitted to us as follows:
1. Did [name of defendant] represent to [name of plaintiff] by a
[statement/description/sample/model/other] that the [product]
[insert description of alleged express warranty]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the resulting bargain between the parties in which [name of
plaintiff] decided to [purchase/use] the [product] based in any way
on [name of defendant]’s
[statement/description/sample/model/other]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the [product] fail to [perform] [or] [have the same quality] as
represented?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the failure of the [product] to [perform] [or] [meet the
quality] as represented a substantial factor in causing harm to
[name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
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PRODUCTS LIABILITY VF-1206
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2011, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 1230, Express Warranty—Essential Factual
Elements, and CACI No. 1240, Affırmative Defense to Express Warranty—Not
“Basis of Bargain.”
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that the plaintiff made a
reasonable attempt to notify the defendant of the defect. Thus, if appropriate, the
following question should be added before the question regarding the plaintiff’s
harm: “Did [name of plaintiff] take reasonable steps to notify [name of defendant]
within a reasonable time that the [product] [was not/did not perform] as requested?”
If specificity is not required, users do not have to itemize all the damages listed in
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VF-1206 PRODUCTS LIABILITY
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Do not include question 2 if the affirmative defense is not at issue.
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VF-1207. Products Liability—Implied Warranty of
Merchantability—Affirmative Defense—Exclusion of Implied
Warranties
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] buy the [product] from [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] in the business of selling these goods?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the sale of the [product] include notice that would have made
a buyer aware that it was being sold without any representations
relating to the quality that a buyer would expect?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the [product] fit for the ordinary purposes for which such
goods are used?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the failure of the [product] to have the expected quality a
substantial factor in causing harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no stop here, answer no further questions, and have the
presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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VF-1207 PRODUCTS LIABILITY
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016, May
2020
Directions for Use
This verdict form is based on CACI No. 1231, Implied Warranty of
Merchantability—Essential Factual Elements, and CACI No. 1242, Affırmative
Defense—Exclusion of Implied Warranties.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that the plaintiff made a
reasonable attempt to notify the defendant of the defect. Thus, where appropriate,
the following question should be added prior to the question regarding the plaintiff’s
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PRODUCTS LIABILITY VF-1207
harm: “Did [name of plaintiff] take reasonable steps to notify [name of defendant]
within a reasonable time that the [product] [was not/did not perform] as requested?”
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Question 2 should be modified if the defendant purported to have special knowledge
or skill regarding the goods. Question 3 should be modified if a different ground of
liability is asserted under Commercial Code section 2314(2). Question 6 should be
modified if the defendant is asserting other grounds under Commercial Code section
2316(3). This form should also be modified if notification is an issue.
Do not include question 3 if the affirmative defense is not at issue.
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VF-1208. Products Liability—Implied Warranty of Fitness for a
Particular Purpose
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] buy the [product] from [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. At the time of purchase, did [name of defendant] know or have
reason to know that [name of plaintiff] intended to use the
[product] for a particular purpose?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. At the time of purchase, did [name of defendant] know that [name
of plaintiff] was relying on [name of defendant]’s skill and
judgment to select or furnish a product that was suitable for the
particular purpose?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] justifiably rely on [name of defendant]’s skill
and judgment?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the [product] suitable for the particular purpose?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was the failure of the [product] to be suitable a substantial factor
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PRODUCTS LIABILITY VF-1208
in causing harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
(3) [lost earnings $ ]
(3) [lost profits $ ]
(3) [medical expenses $ ]
(3) [other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016, May
2020
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VF-1208 PRODUCTS LIABILITY
Directions for Use
This verdict form is based on CACI No. 1232, Implied Warranty of Fitness for a
Particular Purpose—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Question 2 of this form should be modified if the defendant purported to have
special knowledge or skill regarding the goods. Question 3 should be modified if a
different ground of liability is asserted under Commercial Code section 2314(2).
This form should also be modified if notification is an issue.
VF-1209–VF-1299. Reserved for Future Use
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Copyright Judicial Council of California
ASSAULT AND BATTERY
1300. Battery—Essential Factual Elements
1301. Assault—Essential Factual Elements
1302. Consent Explained
1303. Invalid Consent
1304. Affirmative Defense—Self-Defense/Defense of Others
1305A. Battery by Law Enforcement Officer (Nondeadly Force)—Essential Factual
Elements
1305B. Battery by Peace Officer (Deadly Force)—Essential Factual Elements
1306. Sexual Battery—Essential Factual Elements
1307–1319. Reserved for Future Use
1320. Intent
1321. Transferred Intent
1322–1399. Reserved for Future Use
VF-1300. Battery
VF-1301. Battery—Self-Defense/Defense of Others at Issue
VF-1302. Assault
VF-1303A. Battery by Law Enforcement Officer (Nondeadly Force)
VF-1303B. Battery by Peace Officer (Deadly Force)
VF-1304–VF-1399. Reserved for Future Use
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Copyright Judicial Council of California
1300. Battery—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] committed a battery.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [touched [name of plaintiff]] [or] [caused
[name of plaintiff] to be touched] with the intent to harm or offend
[him/her/nonbinary pronoun];
2. That [name of plaintiff] did not consent to the touching; [and]
3. That [name of plaintiff] was harmed [or offended] by [name of
defendant]’s conduct[./; and]
[4. That a reasonable person in [name of plaintiff]’s situation would
have been offended by the touching.]
New September 2003; Revised October 2004
Directions for Use
Give the bracketed words in element 3 and element 4 if the offensive nature of the
conduct is at issue. In most cases, it will be clear whether the alleged conduct was
offensive. The offensive nature of the conduct will most likely not be at issue if the
conduct was clearly harmful.
For a definition of “intent,” see CACI No. 1320, Intent.
Sources and Authority
• Consent as Defense. Civil Code section 3515.
• “The essential elements of a cause of action for battery are: (1) defendant
touched plaintiff, or caused plaintiff to be touched, with the intent to harm or
offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was
harmed or offended by defendant’s conduct; and (4) a reasonable person in
plaintiff’s position would have been offended by the touching.” (So v. Shin
(2013) 212 Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257] [citing this instruction].)
• “A battery is a violation of an individual’s interest in freedom from intentional,
unlawful, harmful or offensive unconsented contacts with his or her person.”
(Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198 Cal.Rptr. 249].)
• “Although it is not incorrect to say that battery is an unlawful touching, . . . it is
redundant to use ‘unlawful’ in defining battery in a jury instruction, and may be
misleading to do so without informing the jury what would make the conduct
unlawful.” (Barouh v. Haberman (1994) 26 Cal.App.4th 40, 45 [31 Cal.Rptr.2d
259], internal citation omitted.)
• “The crimes of assault and battery are intentional torts. In the perpetration of
such crimes negligence is not involved. As between the guilty aggressor and the
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person attacked the former may not shield himself behind the charge that his
victim may have been guilty of contributory negligence, for such a plea is
unavailable to him.” (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385 [59
Cal.Rptr. 382].)
• “ ‘It has long been established, both in tort and criminal law, that “the least
touching” may constitute battery. In other words, force against the person is
enough; it need not be violent or severe, it need not cause bodily harm or even
pain, and it need not leave any mark.’ ” (People v. Mansfield (1988) 200
Cal.App.3d 82, 88 [245 Cal.Rptr. 800], internal citations omitted.)
• “[T]he tort of battery generally is not limited to direct body-to-body contact. In
fact, the commentary to the Restatement Second of Torts clearly states that the
‘[m]eaning of “contact with another’s person” ’ . . . does not require that one
‘should bring any part of his own body in contact with another’s person. . . .
[One] is liable [for battery] in this Section if [one] throws a substance, such as
water, upon the other . . . .’ ” (Mount Vernon Fire Ins. Co. v. Busby (2013) 219
Cal.App.4th 876, 881 [162 Cal.Rptr.3d 211].)
• “The element of lack of consent to the particular contact is an essential element
of battery.” (Rains, supra, 150 Cal.App.3d at p. 938.)
• “As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions on
the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609–610 [278 Cal.Rptr. 900].)
• “In an action for civil battery the element of intent is satisfied if the evidence
shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.”
(Ashcraft, supra, 228 Cal.App.3d at p. 613, internal citation omitted.)
• “ ‘The usages of decent society determine what is offensive.’ ” (Barouh, supra,
26 Cal.App.4th at p. 46, fn. 5, internal citation omitted.)
• “Even though pushing a door cannot be deemed a harmful injury, the pushing of
a door which was touching the prosecutrix could be deemed an offensive
touching and a battery is defined as a harmful or offensive touching.” (People v.
Puckett (1975) 44 Cal.App.3d 607, 614–615 [118 Cal.Rptr. 884].)
• “ ‘If defendant unlawfully aims at one person and hits another he is guilty of
assault and battery on the party he hit, the injury being the direct, natural and
probable consequence of the wrongful act.’ ” (Singer v. Marx (1956) 144
Cal.App.2d 637, 642 [301 P.2d 440], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 452–488
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-J, Assault And
Battery, ¶ 5:858 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
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Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.13
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.21 (Matthew
Bender)
California Civil Practice: Torts §§ 12:7–12:9 (Thomson Reuters)
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1301. Assault—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] assaulted
[him/her/nonbinary pronoun]. To establish this claim, [name of plaintiff]
must prove all of the following:
[1. That [name of defendant] acted, intending to cause harmful [or
offensive] contact;
2. That [name of plaintiff] reasonably believed that [he/she/nonbinary
pronoun] was about to be touched in a harmful [or an offensive]
manner;]
2. [or]
[1. That [name of defendant] threatened to touch [name of plaintiff] in
a harmful [or an offensive] manner;
2. That it reasonably appeared to [name of plaintiff] that [name of
defendant] was about to carry out the threat;]
3. That [name of plaintiff] did not consent to [name of defendant]’s
conduct;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[A touching is offensive if it offends a reasonable sense of personal
dignity.]
[Words alone do not amount to an assault.]
New September 2003; Revised October 2004, June 2005
Directions for Use
For a definition of “intent,” see CACI No. 1320, Intent. The last bracketed sentence
should be read in cases in which there is a dispute as to whether the defendant’s
conduct involved more than words.
Sources and Authority
• “The essential elements of a cause of action for assault are: (1) defendant acted
with intent to cause harmful or offensive contact, or threatened to touch plaintiff
in a harmful or offensive manner; (2) plaintiff reasonably believed she was about
to be touched in a harmful or offensive manner or it reasonably appeared to
plaintiff that defendant was about to carry out the threat; (3) plaintiff did not
consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s
conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013)
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212 Cal.App.4th 652, 668−669 [151 Cal.Rptr.3d 257] [citing this instruction].)
• “ ‘Generally speaking, an assault is a demonstration of an unlawful intent by one
person to inflict immediate injury on the person of another then present.’ ”
(Plotnik v. Meihaus (2012) 208 Cal. App. 4th 1590, 1603–1604 [146 Cal.Rptr.3d
585].)
• “A civil action for assault is based upon an invasion of the right of a person to
live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. of
California (1944) 63 Cal.App.2d 1, 6–7 [146 P.2d 57], internal citation omitted.)
• “The tort of assault is complete when the anticipation of harm occurs.” (Kiseskey
v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d 222, 232
[192 Cal.Rptr 492].)
• “Furthermore, . . . ‘while apprehension of that contact is the basis of assault
[citation,] [m]ere words, however threatening, will not amount to an assault.
[Citations.]’ ” (Plotnik, supra, 208 Cal.App.4th at p. 1604.)
• Restatement Second of Torts, section 21 provides:
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent
apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other for an
apprehension caused thereby although the act involves an
unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 452–488
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-J, Assault And
Battery, ¶ 5:856 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[4] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.15
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew
Bender)
California Civil Practice: Torts §§ 12:3–12:6 (Thomson Reuters)
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1302. Consent Explained
A plaintiff may express consent by words or acts that are reasonably
understood by another person as consent.
A plaintiff may also express consent by silence or inaction if a reasonable
person would understand that the silence or inaction intended to indicate
consent.
New September 2003
Directions for Use
See CACI No. 1303, Invalid Consent, if there is an issue concerning the validity of
plaintiff’s consent.
Sources and Authority
• Consent as Defense. Civil Code section 3515.
• “The element of lack of consent to the particular contact is an essential element
of battery.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198
Cal.Rptr. 249].)
• “Consent to an act, otherwise a battery, normally vitiates the wrong.” (Barbara
A. v. John G. (1983) 145 Cal.App.3d 369, 375 [193 Cal.Rptr. 422].)
• “As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions on
the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609–610 [278 Cal.Rptr. 900].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 457–488
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.91
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.24 (Matthew
Bender)
California Civil Practice: Torts §§ 12:9, 12:18–12:19 (Thomson Reuters)
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1303. Invalid Consent
[Name of plaintiff] claims that [his/her/nonbinary pronoun] consent [was
obtained by fraud/mistake/duress] [was obtained as a result of [his/her/
nonbinary pronoun] incapacity] [or that [name of defendant]’s conduct
went beyond the scope of [his/her/nonbinary pronoun] limited consent].
If [name of plaintiff] proves that [his/her/nonbinary pronoun] consent was
[insert ground for vitiating consent, e.g., “obtained by fraud,” “exceeded”],
then you must find that [he/she/nonbinary pronoun] did not consent.
New September 2003
Directions for Use
For instructions on fraud, mistake, and duress, see other instructions in the
Contracts and Fraud or Deceit series.
Sources and Authority
• Restatement Second of Torts, section 892B provides:
(1) Except as stated in subsection (2), consent to conduct of another
is effective for all consequences of the conduct and for the invasion
of any interests resulting from it.
(2) If the person consenting to the conduct of another is induced to
consent by a substantial mistake concerning the nature of the invasion
of his interests or the extent of the harm to be expected from it and
the mistake is known to the other or is induced by the other’s
misrepresentation, the consent is not effective for the unexpected
invasion or harm.
(3) Consent is not effective if it is given under duress.
• Consent may be invalidated if the act exceeds the scope of the consent or if the
consent is fraudulently induced. (Barbara A. v. John G. (1983) 145 Cal.App.3d
369, 375 [193 Cal.Rptr. 422].)
• Liability may be found where a physician “intentionally deceive[s] another into
submitting to otherwise offensive touching to achieve a nontherapeutic purpose
known only to the physician.” (Rains v. Superior Court (1984) 150 Cal.App.3d
933, 941 [198 Cal.Rptr. 249].)
• “As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions on
the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609–610 [278 Cal.Rptr. 900].)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 457–488
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.57,
58.91 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.24 (Matthew
Bender)
California Civil Practice: Torts §§ 12:9, 12:18–12:19 (Thomson Reuters)
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1304. Affirmative Defense—Self-Defense/Defense of Others
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for [name of plaintiff]’s harm because [he/she/nonbinary
pronoun] was acting in [self-defense/defense of another]. To succeed,
[name of defendant] must prove both of the following:
1. That [name of defendant] reasonably believed that [name of
plaintiff] was going to harm [him/her/nonbinary pronoun/[insert
identification of other person]]; and
2. That [name of defendant] used only the amount of force that was
reasonably necessary to protect [himself/herself/nonbinary
pronoun/[insert identification of other person]].
New September 2003; Revised June 2014
Sources and Authority
• Self Defense. Civil Code section 50.
• “When an alleged act of self-defense . . . is at issue, the question of what force
was reasonable and justified is peculiarly one for determination by the trier of
fact.” (Burton v. Sanner (2012) 207 Cal.App.4th 12, 14 [142 Cal.Rptr.3d 782],
original italics.)
• “Self-defense being an affirmative defense, it must, in a civil action, be
established by the defendant by a preponderance of the evidence.” (Bartosh v.
Banning (1967) 251 Cal.App.2d 378, 386 [59 Cal.Rptr. 382].)
• “In a suit for assault and battery, the defendant is not liable if that defendant
reasonably believed, in view of all the circumstances of the case, that the
plaintiff was going to harm him or her and the defendant used only the amount
of force reasonably necessary to protect himself or herself.” (J.J. v. M.F. (2014)
223 Cal.App.4th 968, 976 [167 Cal.Rptr.3d 670] [citing this instruction].)
• “The right to use force against another has long been limited by the condition
that the force be no more than ‘ “that which reasonably appears necessary, in
view of all the circumstances of the case, to prevent the impending injury.”
‘When the amount of force used is justifiable under the circumstances, it is not
willful and the actor may escape liability for intentionally injurious conduct that
is otherwise actionable. But if force is applied in excess of that which is
justified, the actor remains subject to liability for the damages resulting from the
excessive use of force. . . . When an alleged act of self-defense or defense of
property is at issue, the question of what force was reasonable and justified is
peculiarly one for determination by the trier of fact.” (Calvillo-Silva v. Home
Grocery (1998) 19 Cal.4th 714, 730–731 [80 Cal.Rptr.2d 506, 968 P.2d 65],
internal citations omitted.)
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• “The right of self-defense is not limited by actualities. The correct rule . . . [is]:
‘Generally . . . , the force that one may use in self-defense is that which
reasonably appears necessary, in view of all the circumstances of the case, to
prevent the impending injury.’ In emphasizing that the law of self-defense is a
law of necessity courts should never lose sight of the fact that the necessity may
be either real or apparent.” (Vaughn v. Jonas (1948) 31 Cal.2d 586, 599–600
[191 P.2d 432], internal citations omitted.)
• “The reasonableness standard is an objective standard.” (Burton, supra, 207
Cal.App.4th at p. 20.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 489–493, 495
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.21 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery,
§§ 58.19–58.20, 58.70–58.71 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.40 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 12:20–12:21 (Thomson Reuters)
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1305A. Battery by Law Enforcement Officer (Nondeadly
Force)—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by using unreasonable force to [arrest/detain
[him/her/nonbinary pronoun]/ [,/or] prevent [his/her/nonbinary pronoun]
escape/ [,/or] overcome [his/her/nonbinary pronoun] resistance]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally touched [name of plaintiff]
[or caused [name of plaintiff] to be touched];
2. That [name of defendant] used unreasonable force on [name of
plaintiff];
3. That [name of plaintiff] did not consent to the use of that force;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s use of unreasonable force was a
substantial factor in causing [name of plaintiff]’s harm.
[A/An] [insert type of offıcer] may use reasonable force to [arrest/detain/
[,/or] prevent the escape of/ [,/or] overcome the resistance of] a person
when the officer has reasonable cause to believe that that person has
committed a crime. [Even if the officer is mistaken, a person being
arrested or detained has a duty not to use force to resist the officer
unless the officer is using unreasonable force.]
In deciding whether [name of defendant] used unreasonable force, you
must consider the totality of the circumstances and determine what
amount of force a reasonable [insert type of offıcer] in [name of
defendant]’s position would have used under the same or similar
circumstances. “Totality of the circumstances” means all facts known to
the officer at the time, including the conduct of [name of defendant] and
[name of plaintiff] leading up to the use of force. You should consider,
among other factors, the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue; and
(c) Whether [name of plaintiff] was actively resisting [arrest/detention]
or attempting to evade [arrest/detention].
[An officer who makes or attempts to make an arrest does not have to
retreat or stop because the person being arrested resists or threatens to
resist. Tactical repositioning or other deescalation tactics are not retreat.
An officer does not lose the right to self-defense by using objectively
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reasonable force to [arrest/detain/ [,/or] prevent escape/ [,/or] overcome
resistance.]
New September 2003; Revised December 2012, May 2020, November 2020;
Renumbered from CACI No. 1305 and Revised May 2021
Directions for Use
See CACI No. 1302, Consent Explained, and CACI No. 1303, Invalid Consent, if
there is an issue concerning the plaintiff’s consent.
For additional authorities on excessive force, see the Sources and Authority for
CACI No. 440, Negligent Use of Nondeadly Force by Law Enforcement Offıcer in
Arrest or Other Seizure—Essential Factual Elements, CACI No. 441, Negligent Use
of Deadly Force by Peace Offıcer—Essential Factual Elements, and CACI No.
3020, Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential
Factual Elements.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers.” It would appear that a battery claim involving nondeadly force does not
depend on whether the individual qualifies as a peace officer under the Penal Code.
(See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace
officer”].) For cases involving the use of deadly force by a peace officer, use CACI
No. 1305B, Battery by Peace Offıcer (Deadly Force)—Essential Factual Elements.
(Pen. Code, § 835a.) This instruction and CACI No. 1305B may require
modification if the jury must decide whether the force used by the defendant was
deadly or nondeadly.
Include the bracketed sentence in the second paragraph only if the defendant claims
that the person being arrested or detained resisted the officer.
Factors (a), (b), and (c) are often referred to as the “Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 673
F.3d 864, 872); additional factors may be added if appropriate to the facts of the
case.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
Sources and Authority
• Use of Objectively Reasonable Force to Arrest. Penal Code section 835a.
• Duty to Submit to Arrest. Penal Code section 834a.
• “Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
• “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. . . . [T]he question is whether the officers’ actions are ‘objectively
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reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. . . .” ’ In calculating whether the
amount of force was excessive, a trier of fact must recognize that peace officers
are often forced to make split-second judgments, in tense circumstances,
concerning the amount of force required.” (Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 527–528 [89 Cal.Rptr.3d 801], internal citations omitted.)
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
• “[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, original italics, internal
citation omitted.)
• “Consistent with these principles and the factors the high court has identified, the
federal court in this case did not instruct the jury to conduct some abstract or
nebulous balancing of competing interests. Instead, as noted above, it instructed
the jury to determine the reasonableness of the officers’ actions in light of ‘the
totality of the circumstances at the time,’ including ‘the severity of the crime at
issue, whether the plaintiff posed a reasonable threat to the safety of the officer
or others, and whether the plaintiff was actively resisting detention or attempting
to escape.’ The same consideration of the totality of the circumstances is
required in determining reasonableness under California negligence law.
Moreover, California’s civil jury instructions specifically direct the jury, in
determining whether police officers used unreasonable force for purposes of tort
liability, to consider the same factors that the high court has identified and that
the federal court’s instructions in this case set forth. (Judicial Council of Cal.
Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in arguing that the
federal and state standards of reasonableness differ in that the former involves a
fact finder’s balancing of competing interests.” (Hernandez v. City of Pomona
(2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506], internal citation
omitted.)
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2020) Crimes Against the
Person, §§ 13–14
4 Witkin & Epstein, California Criminal Law (4th ed. 2020) Crimes Against the
Person, § 39
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 496
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.22,
58.61, 58.92 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
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(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
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1305B. Battery by Peace Officer (Deadly Force)—Essential Factual
Elements
A peace officer may use deadly force only when necessary in defense of
human life. [Name of plaintiff] claims that [name of defendant]
unnecessarily used deadly force on [him/her/nonbinary pronoun/name of
decedent]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] intentionally touched [name of plaintiff/
decedent] [or caused [name of plaintiff/decedent] to be touched];
2. That [name of defendant] used deadly force on [name of plaintiff/
decedent];
3. That [name of defendant]’s use of deadly force was not necessary
to defend human life;
4. That [name of plaintiff/decedent] was [harmed/killed]; and
5. That [name of defendant]’s use of deadly force was a substantial
factor in causing [name of plaintiff/decedent]’s [harm/death].
[Name of defendant]’s use of deadly force was necessary to defend human
life only if a reasonable officer in the same situation would have believed,
based on the totality of the circumstances known to or perceived by
[name of defendant] at the time, that deadly force was necessary [insert
one or both of the following:]
5. [to defend against an imminent threat of death or serious bodily
harm to [name of defendant] [or] [to another person][; or/.]]
5. [to apprehend a fleeing person for a felony, when all of the
following conditions are present:
i. The felony threatened or resulted in death or serious bodily
injury to another;
ii. [Name of defendant] reasonably believed that the person fleeing
would cause death or serious bodily injury to another unless
immediately apprehended; and
iii. If practical under the circumstances, [name of defendant] made
reasonable efforts to identify [himself/herself/nonbinary
pronoun] as a peace officer and to warn that deadly force
would be used, unless the officer had objectively reasonable
grounds to believe the person is aware of those facts.]
[A peace officer must not use deadly force against a person based only
on the danger that person poses to [himself/herself/nonbinary pronoun], if
an objectively reasonable officer would believe the person does not pose
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an imminent threat of death or serious bodily injury to the peace officer
or to another person.]
[A person being [arrested/detained] has a duty not to use force to resist
the peace officer unless the peace officer is using unreasonable force.]
“Deadly force” means any use of force that creates a substantial risk of
causing death or serious bodily injury, including, but not limited to, the
discharge of a firearm.
A threat of death or serious bodily injury is “imminent” when, based on
the totality of the circumstances, a reasonable officer in the same
situation would believe that a person has the present ability, opportunity,
and apparent intent to immediately cause death or serious bodily injury
to the peace officer or another person. An imminent harm is not merely
a fear of future harm, no matter how great the fear and no matter how
great the likelihood of the harm, but is one that, from appearances, must
be instantly confronted and addressed.
“Totality of the circumstances” means all facts known to the peace
officer at the time, including the conduct of [name of defendant] and
[name of plaintiff/decedent] leading up to the use of deadly force. In
determining whether [name of defendant]’s use of deadly force was
necessary in defense of human life, you must consider [name of
defendant]’s tactical conduct and decisions before using deadly force on
[name of plaintiff/decedent] and whether [name of defendant] used other
available resources and techniques as [an] alternative[s] to deadly force,
if it was reasonably safe and feasible to do so. [You must also consider
whether [name of defendant] knew or had reason to know that the person
against whom [he/she/nonbinary pronoun] used force was suffering from a
physical, mental health, developmental, or intellectual disability [that
may have affected the person’s ability to understand or comply with
commands from the officer[s]].]
[A peace officer who makes or attempts to make an arrest does not have
to retreat or stop because the person being arrested is resisting or
threatening to resist. Tactical repositioning or other deescalation tactics
are not retreat. A peace officer does not lose the right to self-defense by
use of objectively reasonable force to effect the arrest or to prevent
escape or to overcome resistance. A peace officer does, however, have a
duty to use reasonable tactical repositioning or other deescalation
tactics.]
New May 2021
Directions for Use
Use this instruction for a claim of battery using deadly force by a peace officer. If a
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CACI No. 1305B ASSAULT AND BATTERY
plaintiff alleges battery by both deadly and nondeadly force, or if the jury must
decide whether the amount of force used was deadly or nondeadly, this instruction
may be used along with the CACI No. 1305A, Battery by Law Enforcement Offıcer
(Nondeadly Force)—Essential Factual Elements.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers,” a term defined by the Penal Code. (See Pen. Code, § 835a; see also Pen.
Code, § 830 et seq. [defining “peace officer”].) That the defendant is a peace officer
may be stipulated to or decided by the judge as a matter of law. In such a case, the
judge must instruct the jury that the defendant was a peace officer. If there are
contested issues of fact on this issue, include the specific factual findings necessary
for the jury to determine whether the defendant was acting as a peace officer.
In the paragraph after the essential factual elements, select either or both bracketed
options depending on the asserted justification(s) for the use of deadly force.
“Deadly force” means any use of force that creates a substantial risk of causing
death or serious bodily injury, including, but not limited to, the discharge of a
firearm. (Pen. Code, § 835a(e)(1).) Note that this definition does not require that the
encounter result in the death of the person against whom the force was used. If
there is no dispute about the use of deadly force, the court should instruct the jury
that deadly force was used.
In the “totality of the circumstances” paragraph, do not include the final optional
sentence or its optional clause unless there is evidence of a disability or evidence of
the person’s ability to comprehend or comply with the officer’s commands.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
In a wrongful death or survival action, use the name of the decedent victim where
applicable and further modify the instruction as appropriate.
Sources and Authority
• Legislative Findings re Use of Force by Law Enforcement. Penal Code section
835a(a).
• When Use of Deadly Force is Justified. Penal Code section 835a(c).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “Peace Officer” Defined. Penal Code section 830 et seq.
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
• “[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, original italics, internal
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citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 427, 993
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
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1306. Sexual Battery—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] committed a sexual
battery. To establish this claim, [name of plaintiff] must prove the
following:
1. [(a) That [name of defendant] intended to cause a harmful [or
offensive] contact with [name of plaintiff]’s [sexual organ/anus/
groin/buttocks/ [or] breast], and a sexually offensive contact with
[name of plaintiff] resulted, either directly or indirectly;]
1. [OR]
1. [(b) That [name of defendant] intended to cause a harmful [or
offensive] contact with [name of plaintiff] by use of [name of
defendant]’s [sexual organ/anus/groin/buttocks/ [or] breast], and a
sexually offensive contact with [name of plaintiff] resulted, either
directly or indirectly;]
1. [OR]
1. [(c) That [name of defendant] caused an imminent fear of a
harmful [or offensive] contact with [[name of plaintiff]’s [sexual
organ/anus/groin/buttocks/ [or] breast]/ [or] [name of plaintiff] by
use of [name of defendant]’s [sexual organ/anus/groin/buttocks/
[or] breast]], and a sexually offensive contact with [name of
plaintiff] resulted, either directly or indirectly;]
1. AND
2. That [name of plaintiff] did not consent to the touching; and
3. That [name of plaintiff] was harmed [or offended] by [name of
defendant]’s conduct.
[“Offensive contact” means contact that offends a reasonable sense of
personal dignity.]
New October 2008
Directions for Use
Omit any of the options for element 1 that are not supported by the evidence. If
more than one are at issue, include the word “OR” between them.
Give the bracketed words “or offensive” in element 1 and “or offended” in element
3 and include the optional last sentence if the offensive nature of the conduct is at
issue. In most cases, it will be clear whether the alleged conduct was offensive. The
offensive nature of the conduct will most likely not be at issue if the conduct was
clearly harmful.
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For a definition of “intent,” see CACI No. 1320, Intent.
Sources and Authority
• Sexual Battery. Civil Code section 1708.5.
• Consent as Defense. Civil Code section 3515.
• “A cause of action for sexual battery under Civil Code section 1708.5 requires
the batterer intend to cause a ‘harmful or offensive’ contact and the batteree
suffer a ‘sexually offensive contact.’ Moreover, the section is interpreted to
require that the batteree did not consent to the contact.” (Angie M. v. Superior
Court (1995) 37 Cal.App.4th 1217, 1225 [44 Cal.Rptr.2d 197], internal citation
omitted.)
• “The element of lack of consent to the particular contact is an essential element
of battery.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198
Cal.Rptr. 249].)
• “As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions on
the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609–610 [278 Cal.Rptr. 900].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 452–488
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.27,
58.55 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.27 (Matthew
Bender)
California Civil Practice: Torts §§ 12:7–12:9, 12:36–12:39 (Thomson Reuters)
1307–1319. Reserved for Future Use
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1320. Intent
[Name of defendant] acted intentionally if [he/she/nonbinary pronoun]
intended to [insert facts, e.g., “assault [name of plaintiff],” “commit a
battery”] or if [he/she/nonbinary pronoun] was substantially certain that
the [insert facts, e.g., “assault,” “battery”] would result from
[his/her/nonbinary pronoun] conduct.
New September 2003
Directions for Use
This instruction may be used to define intent for other intentional torts, where
appropriate.
Sources and Authority
• “In an action for civil battery the element of intent is satisfied if the evidence
shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.”
(Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 [278 Cal.Rptr. 900], internal
citation omitted.)
• “As a general rule, California law recognizes that ‘. . . every person is
presumed to intend the natural and probable consequences of his acts.’ Thus, a
person who acts willfully may be said to intend ‘ “ ‘those consequences which
(a) represent the very purpose for which an act is done (regardless of the
likelihood of occurrence), or (b) are known to be substantially certain to result
(regardless of desire).’ ” ’ The same definition is applied to many intentional
torts.” (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746 [57 Cal.Rptr.2d
821], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 455
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.13[1]
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew
Bender)
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1321. Transferred Intent
If [name of defendant] intended to commit a battery or assault on one
person, but by mistake or accident committed the act on [name of
plaintiff], then the battery or assault is the same as if the intended person
had been the victim.
New October 2008
Directions for Use
Use this instruction with CACI No. 1300, Battery—Essential Factual Elements, or
CACI No. 1301, Assault—Essential Factual Elements, if it is alleged that the
defendant intended to batter or assault one person, and mistakenly or accidentally
battered or assaulted the plaintiff.
Sources and Authority
• “While throwing rocks at trees or into the street ordinarily is an innocent and
lawful pastime, that same act when directed at another person is wrongful. The
evidence at bar . . . warrants an inference that [defendant] threw at [third party]
and inadvertently struck [plaintiff]. In such circumstances the doctrine of
“transferred intent” renders him liable to [plaintiff]. . . . ‘If defendant unlawfully
aims at one person and hits another he is guilty of assault and battery on the
party he hit, the injury being the direct, natural and probable consequence of the
wrongful act.’ The rule is not confined to criminal cases, as argued by
respondents.” (Singer v. Marx (1956) 144 Cal.App.2d 637, 642 [301 P.2d 440],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 455
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3][c] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.13,
58.15 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.22 (Matthew
Bender)
California Civil Practice: Torts § 12:8 (Thomson Reuters)
1322–1399. Reserved for Future Use
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VF-1300. Battery
We answer the questions submitted to us as follows:
1. Did [name of defendant] [touch [name of plaintiff]] [or] [cause
[name of plaintiff] to be touched] with the intent to harm or offend
[him/her/nonbinary pronoun]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] consent to be touched?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff] harmed [or offended] by [name of
defendant]’s conduct?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[4. Would a reasonable person in [name of plaintiff]’s situation have
been offended by the touching?
[4. Yes No
[4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the bracketed words in question 3 and bracketed question 4 only if the
offensive nature of the conduct is at issue. In most cases, it will be clear whether
the alleged conduct was offensive. The offensive nature of the conduct will most
likely not be at issue if the conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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VF-1300 ASSAULT AND BATTERY
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1301. Battery—Self-Defense/Defense of Others at Issue
We answer the questions submitted to us as follows:
1. Did [name of defendant] [touch [name of plaintiff]] [or] [cause
[name of plaintiff] to be touched] with the intent to harm or offend
[him/her/nonbinary pronoun]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] consent to be touched?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff] harmed [or offended] by [name of
defendant]’s conduct?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[4. Would a reasonable person in [name of plaintiff]’s situation have
been offended by the touching?
[4. Yes No
[4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
5. Did [name of defendant] reasonably believe that [name of plaintiff]
was going to harm [him/her/nonbinary pronoun/[insert identification
of other person]]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, skip question 6 and answer question 7.
6. Did [name of defendant] use only the amount of force that was
reasonably necessary to protect [himself/herself/nonbinary
pronoun/[insert identification of other person]]?
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6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual Elements,
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ASSAULT AND BATTERY VF-1301
and CACI No. 1304, Self-Defense/Defense of Others.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the bracketed words in question 3 and bracketed question 4 only if the
offensive nature of the conduct is at issue. In most cases, it will be clear whether
the alleged conduct was offensive. The offensive nature of the conduct will most
likely not be at issue if the conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1302. Assault
We answer the questions submitted to us as follows:
[1. Did [name of defendant] act, intending to cause a harmful [or an
offensive] contact with [name of plaintiff] or intending to place
[him/her/nonbinary pronoun] in fear of a harmful or an offensive
contact?
[1. Yes No
[1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] reasonably believe that [he/she/nonbinary
pronoun] was about to be touched in a harmful [or an offensive]
manner?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
[1. Did [name of defendant] threaten to touch [name of plaintiff] in a
harmful [or an offensive] manner?
[1. Yes No
[1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did it reasonably appear to [name of plaintiff] that
[he/she/nonbinary pronoun] was about to be touched in a harmful
[or an offensive] manner?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
3. Did [name of plaintiff] consent to [name of defendant]’s conduct?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, June 2005, April 2007, December
2010, December 2016
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Directions for Use
This verdict form is based on CACI No. 1301, Assault—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
As appropriate to the facts of the case, read one of the bracketed alternative sets of
questions 1 and 2.
Give the bracketed words in question 2 only if the offensive nature of the conduct is
at issue. In most cases, it will be clear whether the alleged conduct was offensive.
The offensive nature of the conduct will most likely not be at issue if the conduct
was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1303A. Battery by Law Enforcement Officer (Nondeadly Force)
We answer the questions submitted to us as follows:
1. Did [name of defendant] intentionally touch [name of plaintiff] [or
cause [name of plaintiff] to be touched]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] use unreasonable force on [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] consent to the use of that force?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s use of unreasonable force a substantial
factor in causing harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016;
Renumbered from CACI No. VF-1303 and Revised May 2021
Directions for Use
This verdict form is based on CACI No. 1305A, Battery by Law Enforcement
Offıcer (Nondeadly Force)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1303B. Battery by Peace Officer (Deadly Force)
We answer the questions submitted to us as follows:
1. Did [name of defendant] intentionally touch [name of
plaintiff/decedent] [or cause [name of plaintiff/decedent] to be
touched]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] use deadly force that was not necessary in
defense of human life on [name of plaintiff/decedent]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s use of deadly force a substantial factor
in causing [harm/death] to [name of plaintiff/decedent]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New May 2021
Directions for Use
This verdict form is based on CACI No. 1305B, Battery by Peace Offıcer (Deadly
Force)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1304–VF-1399. Reserved for Future Use
869
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Copyright Judicial Council of California
FALSE IMPRISONMENT
1400. No Arrest Involved—Essential Factual Elements
1401. False Arrest Without Warrant by Peace Officer—Essential Factual Elements
1402. False Arrest Without Warrant—Affirmative Defense—Peace
Officer—Probable Cause to Arrest
1403. False Arrest Without Warrant by Private Citizen—Essential Factual Elements
1404. False Arrest Without Warrant—Affirmative Defense—Private
Citizen—Probable Cause to Arrest
1405. False Arrest With Warrant—Essential Factual Elements
1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-
Faith” Exception
1407. Unnecessary Delay in Processing/Releasing—Essential Factual Elements
1408. Affirmative Defense—Police Officer’s Lawful Authority to Detain
1409. Common Law Right to Detain for Investigation
1410–1499. Reserved for Future Use
VF-1400. False Imprisonment—No Arrest Involved
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right
to Detain for Investigation
VF-1402. False Arrest Without Warrant
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative
Defense—Probable Cause to Arrest
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative
Defense—Probable Cause to Arrest
VF-1405. False Arrest With Warrant
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative
Defense—“Good-Faith” Exception
VF-1407. False Imprisonment—Unnecessary Delay in Processing/Releasing
VF-1408–VF-1499. Reserved for Future Use
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1400. No Arrest Involved—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was wrongfully
[restrained/confined/detained] by [name of defendant]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally deprived [name of plaintiff]
of [his/her/nonbinary pronoun] freedom of movement by use of
[physical barriers/force/threats of
force/menace/fraud/deceit/unreasonable duress]; [and]
2. That the [restraint/confinement/detention] compelled [name of
plaintiff] to stay or go somewhere for some appreciable time,
however short;
3. That [name of plaintiff] did not [knowingly or voluntarily]
consent;
4. That [name of plaintiff] was actually harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[If you find elements 1, 2, and 3 above, but you find that [name of
plaintiff] was not actually harmed, [he/she/nonbinary pronoun] is still
entitled to a nominal sum, such as one dollar.]
[[Name of plaintiff] need not have been aware that [he/she/nonbinary
pronoun] was being [restrained/confined/detained] at the time.]
New September 2003; Revised December 2010, December 2011, May 2020
Directions for Use
In element 3, include the words “knowingly or voluntarily” if it is alleged that the
plaintiff’s consent was obtained by fraud. (See Scofield v. Critical Air Medicine, Inc.
(1996) 45 Cal.App.4th 990, 1006, fn. 16 [52 Cal.Rptr.2d 915].)
Include the paragraph about nominal damages if there is a dispute about whether the
plaintiff was actually harmed. (See Scofield, supra, 45 Cal.App.4th at p. 1007.)
Include the last paragraph if applicable. (See Id. at pp. 1006–1007.)
If the defendant alleges the existence of a lawful privilege, the judge should read the
applicable affirmative defense instructions immediately following this one.
Sources and Authority
• “The crime of false imprisonment is defined by Penal Code section 236 as the
‘unlawful violation of the personal liberty of another.’ The tort is identically
defined. As we recently formulated it, the tort consists of the ‘ “nonconsensual,
intentional confinement of a person, without lawful privilege, for an appreciable
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length of time, however short.” ’ That length of time can be as brief as 15
minutes. Restraint may be effectuated by means of physical force, threat of force
or of arrest, confinement by physical barriers, or by means of any other form of
unreasonable duress.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716 [30
Cal.Rptr.2d 18, 872 P.2d 559], internal citations omitted.)
• “ ‘[T]he tort [of false imprisonment] consists of the “ ‘nonconsensual, intentional
confinement of a person, without lawful privilege, for an appreciable length of
time, however short.’ ” ’ ” (Scofield, supra, 45 Cal.App.4th at p. 1001, internal
citations omitted.)
• “The only mental state required to be shown to prove false imprisonment is the
intent to confine, or to create a similar intrusion.” (Fermino, supra, 7 Cal.4th at
p. 716.)
• “[False imprisonment] requires some restraint of the person and that he be
deprived of his liberty or compelled to stay where he does not want to remain,
or compelled to go where he does not wish to go; and that the person be
restrained of his liberty without sufficient complaint or authority.” (Collins v.
County of Los Angeles (1966) 241 Cal.App.2d 451, 459–460 [50 Cal.Rptr. 586],
internal citations omitted.)
• “[I]t is clear that force or the threat of force are not the only means by which
the tort of false imprisonment can be achieved. Fraud or deceit or any
unreasonable duress are alternative methods of accomplishing the tort.” (Scofield,
supra, 45 Cal.App.4th at p. 1002, internal citations omitted.)
• “Because ‘[t]here is no real or free consent when it is obtained through fraud’
. . . the [plaintiffs’] confinement on the aircraft was nonconsensual and therefore
actionable as a false imprisonment.” (Scofield, supra, 45 Cal.App.4th at p. 1006,
fn. 16, internal citations omitted.)
• “[C]ontemporaneous awareness of the false imprisonment is not, and need not
be, an essential element of the tort.” (Scofield, supra, 45 Cal.App.4th at p. 1006.)
• “[T]he critical question as to causation in intentional torts is whether the actor’s
conduct is a substantial factor in bringing about the type of harm which he
intended from his original act.” (Null v. City of Los Angeles (1988) 206
Cal.App.3d 1528, 1536, fn. 6 [254 Cal.Rptr. 492], internal citations omitted.)
• “[T]he law of this state clearly allows a cause of action for false imprisonment
notwithstanding the fact a plaintiff suffered merely nominal damage.” (Scofield,
supra, 45 Cal.App.4th at p. 1007.)
• “In addition to recovery for emotional suffering and humiliation, one subjected
to false imprisonment is entitled to compensation for other resultant harm, such
as loss of time, physical discomfort or inconvenience, any resulting physical
illness or injury to health, business interruption, and damage to reputation, as
well as punitive damages in appropriate cases.” (Scofield, supra, 45 Cal.App.4th
at p. 1009, internal citation omitted.)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 499–502
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§§ 42.01, 42.07, 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.17 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.40 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters)
874
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1401. False Arrest Without Warrant by Peace Officer—Essential
Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was wrongfully
arrested by [name of defendant]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] arrested [name of plaintiff] without a
warrant;
2. That [name of plaintiff] was [actually] harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
Give CACI No. 1402, False Arrest Without Warrant—Affırmative Defense—Peace
Offıcer—Probable Cause to Arrest, if applicable, immediately after this instruction.
If plaintiff is seeking nominal damages as an alternative to actual damages, insert
the following paragraph above element 2:
If you find the above, then the law assumes that [name of plaintiff] has been
harmed and [he/she/nonbinary pronoun] is entitled to a nominal sum such as
one dollar. [Name of plaintiff] is also entitled to additional damages if [he/she/
nonbinary pronoun] proves the following:
The second sentence of the above paragraph, along with the final two elements of
this instruction, should be omitted if plaintiff is seeking nominal damages only.
Read “actually” in the second element only if nominal damages are also being
sought.
Sources and Authority
• “Arrest” Defined. Penal Code section 834.
• “False arrest and false imprisonment are the same tort. False arrest is a way of
committing false imprisonment.” (Cox v. Griffın (2019) 34 Cal.App.5th 440, 446,
fn. 6 [246 Cal.Rptr.3d 185].)
• Government Code section 820.4 provides: “A public employee is not liable for
his act or omission, exercising due care, in the execution or enforcement of any
law. Nothing in this section exonerates a public employee from liability for false
arrest or false imprisonment.”
• A person is liable for false imprisonment if he or she “ ‘authorizes, encourages,
directs, or assists an officer to do an unlawful act, or procures an unlawful arrest,
without process, or participates in the unlawful arrest . . . .’ ” (Du Lac v. Perma
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Trans Products, Inc. (1980) 103 Cal.App.3d 937, 941 [163 Cal.Rptr. 335],
internal citation omitted.) Where a defendant “knowingly [gives] the police false
or materially incomplete information, of a character that could be expected to
stimulate an arrest” . . . “such conduct can be a basis for imposing liability for
false imprisonment.” (Id. at p. 942.)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest.” (Cervantez v. J.C. Penney Co.
(1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975].)
• Penal Code section 830 and following provisions define who are peace officers
in California.
• “False imprisonment and malicious prosecution are mutually inconsistent torts
and only one, if either, will lie in this case. In a malicious criminal prosecution,
the detention was malicious but it was accomplished properly, i.e., by means of
a procedurally valid arrest. In contrast, if the plaintiff is arrested pursuant to a
procedurally improper warrant or warrantless arrest, the remedy is a cause of
action for false imprisonment.” (Cummings v. Fire Ins. Exch. (1988) 202
Cal.App.3d 1407, 1422 [249 Cal.Rptr. 568].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 507–513
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.23 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
California Civil Practice: Torts § 13:20 (Thomson Reuters)
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1402. False Arrest Without Warrant—Affirmative Defense—Peace
Officer—Probable Cause to Arrest
[Name of defendant] claims the arrest was not wrongful because [he/she/
nonbinary pronoun] had the authority to arrest [name of plaintiff] without
a warrant.
[If [name of defendant] proves that [insert facts that, if proved, would
constitute reasonable cause to believe that plaintiff had committed a crime in
defendant’s presence], then [name of defendant] had the authority to arrest
[name of plaintiff] without a warrant.]
[or]
[If [name of defendant] proves that [insert facts that, if proved, would
establish that defendant had reasonable cause to believe that plaintiff had
committed a felony, whether or not a felony had actually been committed],
then [name of defendant] had the authority to arrest [name of plaintiff]
without a warrant.]
New September 2003
Directions for Use
In the brackets, the judge must insert the fact or facts that are actually controverted
and that may be necessary to arrive at the probable cause determination. There may
be one or more facts or combinations of facts that are necessary to make this
determination, in which case they can be phrased in the alternative.
If a criminal act is alleged as justification, it may be necessary to instruct whether
the crime is a felony, misdemeanor, or public offense.
Penal Code section 836 provides, in part, that a warrantless arrest may be made if a
person has committed a felony, although not in the officer’s presence. While the
requirement of probable cause is not explicitly stated, it would seem that the officer
must always have probable cause at the time of the arrest and that subsequent
conviction of a felony does not sanitize an improper arrest.
If the first bracketed paragraph is used, the judge should include “in the officer’s
presence” as part of the facts that the jury needs to find if there is a factual dispute
on this point.
Sources and Authority
• Arrest Without a Warrant. Penal Code section 836(a).
• Felonies and Misdemeanors. Penal Code section 17(a).
• “Peace Officers” Defined. Penal Code section 830 et seq.
• “An officer is not liable for false imprisonment for the arrest without a warrant
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CACI No. 1402 FALSE IMPRISONMENT
of a person whom he has reasonable grounds to believe is guilty of a crime.”
(Allen v. McCoy (1933) 135 Cal.App. 500, 507–508 [27 P.2d 423].)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest. Considerations of both a practical
and policy nature underlie this rule. The existence of justification is a matter
which ordinarily lies peculiarly within the knowledge of the defendant. The
plaintiff would encounter almost insurmountable practical problems in attempting
to prove the negative proposition of the nonexistence of any justification. This
rule also serves to assure that official intermeddling is justified, for it is a serious
matter to accuse someone of committing a crime and to arrest him without the
protection of the warrant process.” (Cervantez v. J. C. Penney Co. (1979) 24
Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975], footnote and internal
citations omitted.)
• “We look to whether facts known to the arresting officer ‘at the moment the
arrest was made’ ‘ “would persuade someone of ‘reasonable caution’ that the
person to be arrested has committed a crime.” ’ ” (Cornell v. City & County of
San Francisco (2017) 17 Cal.App.5th 766, 779 [225 Cal.Rptr.3d 356], internal
citations omitted.)
• “If the facts that gave rise to the arrest are undisputed, the issue of probable
cause is a question of law for the trial court. When, however, the facts that gave
rise to the arrest are controverted, the trial court must instruct the jury as to what
facts, if established, would constitute probable cause. ‘The trier of fact’s function
in false arrest cases is to resolve conflicts in the evidence. Accordingly, where
the evidence is conflicting with respect to probable cause, “ ‘it [is] the duty of
the court to instruct the jury as to what facts, if established, would constitute
probable cause.’ ” . . . The jury then decides whether the evidence supports the
necessary factual findings.’ ” (Levin v. United Air Lines, Inc. (2008) 158
Cal.App.4th 1002, 1018–1019 [70 Cal.Rptr.3d 535], internal citations omitted.)
• “The legal standard we apply to assess probable cause is an objective one in
which the subjective motivations of the arresting officers have no role. But it is
an overstatement to say that what is in the mind of an arresting officer is wholly
irrelevant, for the objective test of reasonableness is simply a measure by which
we assess whether the circumstances as subjectively perceived by the officer
provide a reasonable basis for the seizure.” (Cornell, supra, 17 Cal.App.5th at p.
779, internal citations omitted.)
• “ ‘Presence’ is not mere physical proximity but is determined by whether the
offense is apparent to the officer’s senses.” (People v. Sjosten (1968) 262
Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 509, 511
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
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§ 42.23 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.20 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.65 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 13:22–13:24 (Thomson Reuters)
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1403. False Arrest Without Warrant by Private Citizen—Essential
Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was wrongfully
arrested by [name of defendant]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] intentionally caused [name of plaintiff] to
be arrested without a warrant; [and]
2. That [name of plaintiff] was [actually] harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[A private person does not need to physically restrain a suspect in order
to make a citizen’s arrest. A private person can make a citizen’s arrest
by calling for a peace officer, reporting the offense, and pointing out the
suspect.]
New September 2003; Revised December 2011
Directions for Use
Give CACI No. 1404, False Arrest Without Warrant—Affırmative Defense—Private
Citizen—Probable Cause to Arrest, if applicable, immediately after this instruction.
If the plaintiff is seeking nominal damages as an alternative to actual damages,
insert the following paragraph above element 2:
If you find the above, then the law assumes that [name of plaintiff] has been
harmed and [he/she/nonbinary pronoun] is entitled to a nominal sum such as
one dollar. [Name of plaintiff] is also entitled to additional damages if [he/she/
nonbinary pronoun] proves the following:
The second sentence, along with the final two elements of this instruction, should be
omitted if plaintiff is seeking nominal damages only. Read “actually” in the second
element only if nominal damages are also being sought.
Sources and Authority
• “Arrest” Defined. Penal Code section 834.
• “False arrest and false imprisonment are the same tort. False arrest is a way of
committing false imprisonment.” (Cox v. Griffın (2019) 34 Cal.App.5th 440, 446,
fn. 6 [246 Cal.Rptr.3d 185].)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest.” (Cervantez v. J.C. Penney Co.
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(1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975].)
• “ ‘[T]he delegation of the physical act of arrest need not be express, but may be
implied from the citizen’s act of summoning an officer, reporting the offense, and
pointing out the suspect.’ ” (Johanson v. Dept. of Motor Vehicles (1995) 36
Cal.App.4th 1209, 1216 [43 Cal.Rptr.2d 42], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 511, 512
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.22 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters)
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1404. False Arrest Without Warrant—Affirmative Defense—Private
Citizen—Probable Cause to Arrest
[Name of defendant] claims the citizen’s arrest was not wrongful because
[he/she/nonbinary pronoun] had the authority to cause [name of plaintiff]
to be arrested without a warrant.
[If [name of defendant] proves that [name of plaintiff] committed or
attempted to commit a crime in [name of defendant]’s presence, then the
arrest was lawful.]
[or]
[If [name of defendant] proves that a felony was committed and that
[insert facts, that if proved, would establish that defendant had reasonable
cause to believe that plaintiff had committed a felony], then the arrest was
lawful.]
New September 2003
Directions for Use
The judge must insert in the brackets the fact or facts that are actually controverted
and that may be necessary to arrive at the probable cause determination. There may
be one or more facts or combinations of facts that are necessary to make this
determination, in which case they can be phrased in the alternative.
If a criminal act is alleged as justification, it may be necessary to instruct whether
the crime is a felony, misdemeanor, or public offense.
Penal Code section 837 provides, in part, that a warrantless arrest may be made if a
person has committed a felony, although not in the citizen’s presence. While the
requirement of probable cause is not explicitly stated, it would seem that the citizen
must always have probable cause at the time of the arrest and that subsequent
conviction of a felony does not sanitize an improper arrest.
Sources and Authority
• Citizen’s Arrest. Penal Code section 837.
• Felonies and Misdemeanors. Penal Code section 17(a).
• “What is probable cause, as has been often announced, is not a question of fact
for the jury, but one of law for the court, to be decided in accordance with the
circumstances at the time of the detention, unhampered by the outcome of the
charge against the plaintiff of the public offense or by the conclusions of the trial
court.” (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 181 [54 P.2d 20], internal
citations omitted.)
• “ ‘Presence’ is not mere physical proximity but is determined by whether the
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offense is apparent to the [person]’s senses.” (People v. Sjosten (1968) 262
Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 511, 512
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.22 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.19 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.60 et seq.
(Matthew Bender)
California Civil Practice: Torts § 13:11 (Thomson Reuters)
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1405. False Arrest With Warrant—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was wrongfully
arrested by [name of defendant]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. [That [name of defendant] arrested [name of plaintiff];]
1. [or]
1. [That [name of defendant] intentionally caused [name of plaintiff] to
be wrongfully arrested;]
2. That [insert facts supporting the invalidity of the warrant or the
unlawfulness of the arrest, e.g., “the warrant for [name of plaintiff]’s
arrest had expired”];
3. That [name of plaintiff] was [actually] harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2011
Directions for Use
CACI No. 1406, False Arrest With Warrant—Peace Offıcer—Affırmative
Defense—“Good-Faith” Exception, should be given after this instruction if that
defense is asserted.
If the plaintiff is seeking nominal damages as an alternative to actual damages,
insert the following paragraph above element 3:
If you find both of the above, then the law assumes that [name of plaintiff] has
been harmed and [he/she/nonbinary pronoun] is entitled to a nominal sum such
as one dollar. [Name of plaintiff] is also entitled to additional damages if [he/
she/nonbinary pronoun] proves the following:
The second sentence of the above paragraph, along with the final two elements of
this instruction, should be omitted if plaintiff is seeking nominal damages only.
Read “actually” in the third element only if nominal damages are also being sought.
Sources and Authority
• Penal Code section 834.
• Public Employee Liability for False Arrest. Government Code section 820.4.
• “False arrest and false imprisonment are the same tort. False arrest is a way of
committing false imprisonment.” (Cox v. Griffın (2019) 34 Cal.App.5th 440, 446,
fn. 6 [246 Cal.Rptr.3d 185].)
• “ ‘The action for false imprisonment is frequently alleged to have been
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FALSE IMPRISONMENT CACI No. 1405
committed by reason of some wrongful arrest under some pretended or void
order of some court, in which class of false imprisonment cases it is incumbent
on the plaintiff to allege facts showing or tending to show that such arrest, under
such court procedure, was wrongful, unauthorized and without any probable
cause; . . . .’ ” (Peters v. Bigelow (1934) 137 Cal.App. 135, 139 [30 P.2d 450].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 514–516
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.25 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.20 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.77 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 13:26–13:30 (Thomson Reuters)
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1406. False Arrest With Warrant—Peace Officer—Affirmative
Defense—“Good-Faith” Exception
[Name of defendant] claims that the arrest was not wrongful. To succeed,
[name of defendant] must prove all of the following:
1. That the arrest warrant would have appeared valid to a
reasonably intelligent and informed person;
2. That [name of defendant] believed the warrant was valid; and
3. That [name of defendant] had a reasonable belief that [name of
plaintiff] was the person referred to in the warrant.
If [name of defendant] has proven all of the above, then the arrest was
not wrongful.
New September 2003
Directions for Use
The absence-of-malice requirement is satisfied if the officer believes the warrant is
valid and the warrant is valid on its face, notwithstanding any personal hostility or
ill will.
Sources and Authority
• Immunity for Good-Faith Acts. Civil Code section 43.55(a).
• “With regard to Civil Code section 43.55, the immunity set forth therein for
arrests made pursuant to a regular warrant is only conditional. A failure of any
condition prevents the immunity from attaching to a public entity or employee.”
(Harden v. Bay Area Rapid Transit Dist. (1989) 215 Cal.App.3d 7, 14 [263
Cal.Rptr. 549].)
• “ ‘Malice,’ as that term is used in section 43.55, refers not to the actual physical
execution of the warrant, but to the officer’s state of mind in procuring or
executing the warrant. For instance, malice for purposes of section 43.55 has
been found in situations where the officer purposefully withheld exculpatory
evidence from the magistrate issuing the arrest warrant, where the officer
knowingly used false information in order to obtain the warrant, or where the
officer executes the warrant with knowledge that it has been recalled or is no
longer valid.” (Ting v. U.S. (9th Cir. 1991) 927 F.2d 1504, 1514, internal
citations omitted.)
• Courts have described the meaning of a warrant “regular on its face” as follows:
“Unless there is a clear absence of jurisdiction on the part of the court or
magistrate issuing the process, it is sufficient if upon its face it [the warrant]
appears to be valid in the judgment of an ordinarily intelligent and informed
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FALSE IMPRISONMENT CACI No. 1406
layman.” (Allison v. County of Ventura (1977) 68 Cal.App.3d 689, 697 [137
Cal.Rptr. 542].)
• “Peace officers are not required to investigate the supportive legal proceedings
from which a warrant issues. However, they are required to exercise the
judgment of an ‘ordinarily intelligent and informed layman’ to observe the
blatant and patent inadequacy of a warrant emanating from a civil action which
directs arrest and neither sets bail nor informs the arrestee of the offense charged
for which arrest is ordered.” (Allison, supra, 68 Cal.App.3d at p. 703.)
• “A police officer must use reasonable prudence and diligence to determine
whether a party being arrested is the one described in the warrant. The officer
may not refuse to act upon information offered him which discloses the warrant
is being served on the wrong person. But, the prudence and diligence required of
an arresting officer in determining whether to make an arrest must be balanced
against the need to act swiftly and to make on-the-spot evaluations, often under
chaotic conditions.” (Lopez v. City of Oxnard (1989) 207 Cal.App.3d 1, 7 [254
Cal.Rptr. 556].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 514–516
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.25 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment (Matthew
Bender)
California Civil Practice: Torts §§ 13:26–13:30 (Thomson Reuters)
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1407. Unnecessary Delay in Processing/Releasing—Essential
Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was wrongfully
confined by [name of defendant]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] held [name of plaintiff] in custody;
2. That there was an unnecessary delay [insert facts, e.g., “in taking
[name of plaintiff] before a judge” or “in releasing [name of
plaintiff]”];
3. That [name of plaintiff] did not consent to the delay;
4. That [name of plaintiff] was [actually] harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2011
Directions for Use
If the plaintiff is seeking nominal damages as an alternative to actual damages,
insert the following paragraph above element 4:
If you find the above, then the law assumes that [name of plaintiff] has been
harmed and [he/she/nonbinary pronoun] is entitled to a nominal sum such as
one dollar. [Name of plaintiff] is also entitled to additional damages if [he/she/
nonbinary pronoun] proves the following:
The second sentence of the above paragraph, along with the final two elements of
this instruction, should be omitted if plaintiff is seeking nominal damages only.
Read “actually” in the fourth element only if nominal damages are also being
sought.
Sources and Authority
• “Arrest” Defined. Penal Code section 834.
• Time for Arraignment. Penal Code section 825(a).
• Public Employee Liability for False Arrest. Government Code section 820.4.
• “The critical factor is the necessity for any delay in arraignment. These
provisions do not authorize a two-day detention in all cases. Instead, ‘a limit [is
placed] upon what may be considered a necessary delay, and a detention of less
than two days, if unreasonable under the circumstances, is in violation of the
statute’ and of the Constitution.” (People v. Thompson (1980) 27 Cal.3d 303, 329
[165 Cal.Rptr. 289, 611 P.2d 883].)
• “ ‘[F]alse arrest’ and ‘false imprisonment’ are not separate torts. False arrest is
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but one way of committing a false imprisonment, and they are distinguishable
only in terminology.” (Collins v. City and County of San Francisco (1975) 50
Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)
• “In determining which delays are necessary, this court has rejected arguments
that the delay was ‘not unusual’ or made ‘the work of the police and the district
attorney easier.’ As the Court of Appeal recently observed, ‘[t]here is no
authority to delay for the purpose of investigating the case. Subject to obvious
health considerations the only permissible delay between the time of arrest and
bringing the accused before a magistrate is the time necessary: to complete the
arrest; to book the accused; to transport the accused to court; or the district
attorney to evaluate the evidence for the limited purpose of determining what
charge, if any, is to be filed; and to complete the necessary clerical and
administrative tasks to prepare a formal pleading.’ ” (Youngblood v. Gates (1988)
200 Cal.App.3d 1302, 1319 [246 Cal.Rptr. 775], internal citations omitted.)
• “Although both false imprisonment and malicious prosecution may cause a
person to be restrained or confined, under Asgari (Asgari v. City of Los Angeles
(1997) 15 Cal.4th 744 [63 Cal.Rptr.2d 842, 937 P.2d 273]) only damages
attributable to injuries arising from false arrest and false imprisonment are
compensable in an action under state law against a public entity and its
employees. False imprisonment ends at the point malicious prosecution begins
which, under Asgari, is the point at which the person is arraigned.” (County of
Los Angeles v. Superior Court (2000) 78 Cal.App.4th 212, 220–221 [92
Cal.Rptr.2d 668].)
• “[W]here the arrest is lawful, subsequent unreasonable delay in taking the person
before a magistrate will not affect the legality of the arrest, although it will
subject the offending person to liability for so much of the imprisonment as
occurs after the period of necessary or reasonable delay.” (Dragna v. White
(1955) 45 Cal.2d 469, 473 [289 P.2d 428].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 518
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.26 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.24 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.110 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 13:31–13:34 (Thomson Reuters)
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1408. Affirmative Defense—Police Officer’s Lawful Authority to
Detain
[Name of defendant] claims that the detention was not wrongful because
[he/she/nonbinary pronoun] had a right to detain [name of plaintiff] for
questioning or other limited investigation.
If [name of defendant] has proven that [insert facts, that if established,
would constitute a reasonable suspicion], then [name of defendant] had a
right to detain [name of plaintiff] for questioning or other limited
investigation.
New September 2003
Directions for Use
This instruction is intended to apply to false imprisonment actions not involving an
arrest. The inserted facts must support a finding of reasonable suspicion as a matter
of law.
If the factual issues are too complicated, consider bifurcating the trial.
Sources and Authority
• “In an action for false arrest and imprisonment, the question of reasonable or
probable cause is ordinarily one for the court, and not for the jury. When the
facts are admitted or are beyond controversy, the question is to be determined by
the court alone. When the facts are controverted or the evidence conflicting, the
determination of their legal effect by the court is necessarily hypothetical and the
jury is to be told that if it finds the facts in a designated way such facts do or do
not amount to probable cause.” (Whaley v. Jansen (1962) 208 Cal.App.2d 222,
227 [25 Cal.Rptr. 184].)
• “Although the line may at times be a fine one, there is a well-settled distinction
in law between an arrest and a detention. A detention is a lesser intrusion upon a
person’s liberty requiring less cause and consisting of briefly stopping a person
for questioning or other limited investigation.” (Cervantez v. J.C. Penney Co.
(1979) 24 Cal.3d 579, 591, fn. 5 [156 Cal.Rptr. 198, 595 P.2d 975].)
• Government Code section 820.4 provides: “A public employee is not liable for
his act or omission, exercising due care, in the execution or enforcement of any
law. Nothing in this section exonerates a public employee from liability for false
arrest or false imprisonment.”
• “The Fourth Amendment to the United States Constitution prohibits seizures of
persons, including brief investigative stops, when they are ‘unreasonable.’ Our
state Constitution has a similar provision. A seizure occurs whenever a police
officer ‘by means of physical force or show of authority’ restrains the liberty of
a person to walk away.” (People v. Souza (1994) 9 Cal.4th 224, 229 [36
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Cal.Rptr.2d 569, 885 P.2d 982], internal citations omitted.)
• “A detention . . . has been said to occur ‘if the suspect is not free to leave at
will—if he is kept in the officer’s presence by physical restraint, threat of force,
or assertion of authority.’ ” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th
321, 330 [27 Cal.Rptr.2d 406], internal citation omitted.)
• “It is settled that circumstances short of probable cause to make an arrest may
justify a police officer stopping and briefly detaining a person for questioning or
other limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892 [148
Cal.Rptr. 366, 582 P.2d 957].)
• “A detention is reasonable under the Fourth Amendment when the detaining
officer can point to specific articulable facts that, considered in light of the
totality of the circumstances, provide some objective manifestation that the
person detained may be involved in criminal activity.” (Souza, supra, 9 Cal.4th
at p. 231.)
• “The state bears the burden of justifying a detention, as with all warrantless
intrusions.” (People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [231 Cal.Rptr.
1], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 504
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.20 et seq. (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.65 et seq.
(Matthew Bender)
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1409. Common Law Right to Detain for Investigation
[Name of defendant] claims that the detention was not wrongful because
[he/she/nonbinary pronoun] had a right to detain [name of plaintiff]. To
succeed, [name of defendant] must prove all of the following:
1. That [name of defendant] was the
[owner/employer/employee/agent] of a business;
2. That [name of defendant] had reasonable grounds to believe that
[name of plaintiff] had wrongfully [taken or damaged merchandise
or other personal property] [secured services] from the business.
If you find that [insert facts, that if established, would constitute
reasonable grounds], then [name of defendant] had reasonable
grounds to detain [name of plaintiff];
3. That [name of defendant] detained [name of plaintiff] for a
reasonable amount of time; and
4. That [name of defendant] detained [name of plaintiff] in a
reasonable manner.
New September 2003
Sources and Authority
• “[W]e conclude that the merchant’s probable cause defense is limited to suits
based upon a detention and does not extend to suits based upon an arrest.”
(Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 591 [156 Cal.Rptr. 198,
595 P.2d 975].)
• “Ordinarily, the owner of property, in the exercise of his inherent right to protect
the same, is justified in restraining another who seeks to interfere with or injure
it.” (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 180 [54 P.2d 20], internal
citation omitted.)
• “Merchants who detain individuals whom they have probable cause to believe
are about to injure their property are privileged against a false imprisonment
action. The detention itself must be carried out for a reasonable time and in a
reasonable manner.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716 [30
Cal.Rptr.2d 18, 872 P.2d 559].)
• “We note that the merchant’s privilege is a defense to a false imprisonment
action. As such, the lack of that privilege on defendant’s part need not be
specifically pleaded by plaintiff. Although a false imprisonment must involve an
‘unlawful’ restraint on an individual’s liberty, [plaintiff’s] allegations sufficiently
plead that her confinement was unlawful. Moreover, the question of whether a
detainment was reasonable is generally a question of fact.” (Fermino, supra, 7
Cal.4th at p. 723, fn. 8, internal citations omitted.)
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• Penal Code section 490.5(f) provides, in part: “A merchant may detain a person
for a reasonable time for the purpose of conducting an investigation in a
reasonable manner whenever the merchant has probable cause to believe the
person to be detained is attempting to unlawfully take or has unlawfully taken
merchandise from the merchant’s premises.”
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 504, 505
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.17 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.41
(Matthew Bender)
California Civil Practice: Torts § 13:11 (Thomson Reuters)
1410–1499. Reserved for Future Use
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VF-1400. False Imprisonment—No Arrest Involved
We answer the questions submitted to us as follows:
1. Did [name of defendant] intentionally deprive [name of plaintiff] of
[his/her/nonbinary pronoun] freedom of movement by use of
[physical barriers/force/threats of
force/menace/fraud/deceit/unreasonable duress]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] consent?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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FALSE IMPRISONMENT VF-1400
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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VF-1400 FALSE IMPRISONMENT
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
896
Copyright Judicial Council of California
VF-1401. False Imprisonment—No Arrest Involved—Affirmative
Defense—Right to Detain for Investigation
We answer the questions submitted to us as follows:
1. Did [name of defendant] intentionally deprive [name of plaintiff] of
[his/her/nonbinary pronoun] freedom of movement by use of
[physical barriers/force/threats of
force/menace/fraud/deceit/unreasonable duress]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] have the right to detain [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] consent?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
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VF-1401 FALSE IMPRISONMENT
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements, and CACI No. 1409, Common Law Right to Detain for
Investigation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
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FALSE IMPRISONMENT VF-1401
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1402. False Arrest Without Warrant
We answer the questions submitted to us as follows:
1. Did [name of defendant] [arrest [name of plaintiff]/intentionally
cause [name of plaintiff] to be arrested] without a warrant?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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FALSE IMPRISONMENT VF-1402
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 2 to direct the jury to skip question 3 and answer
question 4 if they find no harm. Then add a new question 4: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 3 that the jury should not answer question 4. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
901
Copyright Judicial Council of California
VF-1403. False Arrest Without Warrant by Peace
Officer—Affirmative Defense—Probable Cause to Arrest
We answer the questions submitted to us as follows:
1. Did [name of defendant] arrest [name of plaintiff] without a
warrant?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [insert facts that, if proved, would constitute reasonable cause
to believe that plaintiff had committed a crime in defendant’s
presence]?]
2. [or]
2. [Did [insert facts that, if proved, would establish that defendant had
reasonable cause to believe that plaintiff had committed a felony,
whether or not a felony had actually been committed]?]
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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FALSE IMPRISONMENT VF-1403
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements, and CACI No. 1402, False Arrest
Without Warrant—Affırmative Defense—Peace Offıcer—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
903
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VF-1403 FALSE IMPRISONMENT
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-1404. False Arrest Without Warrant by Private
Citizen—Affirmative Defense—Probable Cause to Arrest
We answer the questions submitted to us as follows:
1. Did [name of defendant] intentionally cause [name of plaintiff] to be
arrested without a warrant?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of plaintiff] commit or attempt to commit a crime in
[name of defendant]’s presence?]
2. [or]
2. [Was a felony committed and [insert facts, that if proved, would
establish that defendant had reasonable cause to believe that plaintiff
had committed a felony]?]
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1403, False Arrest Without Warrant by
Private Citizen—Essential Factual Elements, and CACI No. 1404, False Arrest
Without Warrant—Affırmative Defense—Private Citizen—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
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committee has found no cases requiring the jury to determine the amount of
nominal damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1405. False Arrest With Warrant
We answer the questions submitted to us as follows:
1. Did [name of defendant] [arrest [name of plaintiff]/intentionally
cause [name of plaintiff] to be arrested]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Insert question regarding facts supporting the invalidity of the
warrant or the unlawfulness of the arrest, e.g., “Had the warrant for
[name of plaintiff]’s arrest expired?”]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With Warrant—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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VF-1405 FALSE IMPRISONMENT
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1406. False Arrest With Warrant—Peace Officer—Affirmative
Defense—“Good-Faith” Exception
We answer the questions submitted to us as follows:
1. Did [name of defendant] arrest [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Insert question regarding facts supporting the invalidity of the
warrant or the unlawfulness of the arrest, e.g., “Had the warrant for
[name of plaintiff]’s arrest expired?”]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Would the arrest warrant have appeared valid to a reasonably
intelligent and informed person?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, skip questions 4 and 5 and answer question 6.
4. Did [name of defendant] believe the warrant was valid?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, skip question 5 and answer question 6.
5. Did [name of defendant] have a reasonable belief that [name of
plaintiff] was the person referred to in the warrant?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
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VF-1406 FALSE IMPRISONMENT
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With Warrant—Essential
Factual Elements, and CACI No. 1406, False Arrest With Warrant—Peace
Offıcer—Affırmative Defense—“Good-Faith” Exception.
The special verdict forms in this section are intended only as models. They may
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need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 6 to direct the jury to skip question 7 and answer
question 8 if they find no harm. Then add a new question 8: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 7 that the jury should not answer question 8. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1407. False Imprisonment—Unnecessary Delay in Processing/
Releasing
We answer the questions submitted to us as follows:
1. Did [name of defendant] hold [name of plaintiff] in custody?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was there an unnecessary delay [insert facts, e.g., “in taking [name
of plaintiff] before a judge” or “in releasing [name of plaintiff]”]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] consent to the delay?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1407, Unnecessary Delay in Processing/
Releasing—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
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If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1408–VF-1499. Reserved for Future Use
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1500. Former Criminal Proceeding—Essential Factual Elements
1501. Wrongful Use of Civil Proceedings
1502. Wrongful Use of Administrative Proceedings
1503. Affirmative Defense—Proceeding Initiated by Public Employee Within
Scope of Employment (Gov. Code, § 821.6)
1504. Former Criminal Proceeding—“Actively Involved” Explained
1505–1509. Reserved for Future Use
1510. Affirmative Defense—Reliance on Counsel
1511. Wrongful Use of Civil Proceedings—Affirmative Defense—Attorney’s
Reliance on Information Provided by Client
1512–1519. Reserved for Future Use
1520. Abuse of Process—Essential Factual Elements
1521–1529. Reserved for Future Use
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper
Claims
1531–1599. Reserved for Future Use
VF-1500. Malicious Prosecution—Former Criminal Proceeding
VF-1501. Malicious Prosecution—Wrongful Use of Civil Proceedings
VF-1502. Malicious Prosecution—Wrongful Use of Civil Proceedings—Affirmative
Defense—Reliance on Counsel
VF-1503. Malicious Prosecution—Wrongful Use of Administrative Proceedings
VF-1504. Abuse of Process
VF-1505–VF-1599. Reserved for Future Use
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1500. Former Criminal Proceeding—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully caused a
criminal proceeding to be brought against [him/her/nonbinary pronoun/it].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was actively involved in causing [name of
plaintiff] to be arrested [and prosecuted] [or in causing the
continuation of the prosecution];
[2. That the criminal proceeding ended in [name of plaintiff]’s favor;]
[3. That no reasonable person in [name of defendant]’s circumstances
would have believed that there were grounds for causing [name of
plaintiff] to be arrested [and prosecuted];]
4. That [name of defendant] acted primarily for a purpose other than
to bring [name of plaintiff] to justice;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 2 above, whether the criminal
proceeding ended in [his/her/nonbinary pronoun/its] favor. But before I
can do so, you must decide whether [name of plaintiff] has proven the
following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
[The law [also] requires that the trial judge, rather than the jury, decide
if [name of plaintiff] has proven element 3 above, whether a reasonable
person in [name of defendant]’s circumstances would have believed that
there were grounds for causing [name of plaintiff] to be arrested [and
prosecuted]. But before I can do so, you must decide whether [name of
plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
New September 2003; Revised April 2008, October 2008, June 2015, May 2018
Directions for Use
Give this instruction in a malicious prosecution case based on an underlying
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criminal prosecution. If there is an issue as to what it means to be “actively
involved” in element 1, also give CACI No. 1504, Former Criminal
Proceeding—“Actively Involved” Explained.
In elements 1 and 3 and in the next-to-last paragraph, include the bracketed
references to prosecution if the arrest was without a warrant. Whether prosecution is
required in an arrest on a warrant has not definitively been resolved. (See Van
Audenhove v. Perry (2017) 11 Cal.App.5th 915, 919–925 [217 Cal.Rptr.3d 843].)
Malicious prosecution requires that the criminal proceeding have ended in the
plaintiff’s favor (element 2) and that the defendant did not reasonably believe that
there were any grounds (probable cause) to initiate the proceeding (element 3).
Probable cause is to be decided by the court as a matter of law. However, it may
require the jury to find some preliminary facts before the court can make its legal
determination, including facts regarding what the defendant knew or did not know at
the time. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254
Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part
of the instruction that refers to element 3.
Favorable termination is handled in much the same way. If a proceeding is
terminated other than on the merits, there may be disputed facts that the jury must
find in order to determine whether there has been a favorable termination. (See
Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so,
include element 2 and also the bracketed part of the instruction that refers to
element 2. Once these facts are determined, the jury does not then make a second
determination as to whether there has been a favorable termination. The matter is
determined by the court based on the resolution of the disputed facts. (See Sierra
Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[element of favorable termination is for court to decide].)
Either or both of the elements of probable cause and favorable termination should
be omitted if there are no disputed facts regarding that element for the jury.
Element 4 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
• “Malicious prosecution consists of initiating or procuring the arrest and
prosecution of another under lawful process, but from malicious motives and
without probable cause.” (Cedars-Sinai Medical Center v. Superior Court (1988)
206 Cal.App.3d 414, 417 [253 Cal.Rptr. 561], internal citation omitted.)
• “The remedy of a malicious prosecution action lies to recompense the defendant
who has suffered out of pocket loss in the form of attorney fees and costs, as
well as emotional distress and injury to reputation because of groundless
allegations made in pleadings which are public records.” (Sagonowsky v. More
(1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
• “[A] cause of action for malicious prosecution cannot be premised on an arrest
that does not result in formal charges (at least when the arrest is not pursuant to
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a warrant).” (Van Audenhove, supra, 11 Cal.App.5th at p. 917 [rejecting Rest.2d
Torts, § 654. subd. (2)(c)].)
• “Cases dealing with actions for malicious prosecution against private persons
require that the defendant has at least sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that plaintiff has
committed a crime.” (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710,
720 [117 Cal.Rptr. 241, 527 P.2d 865], internal citations omitted.)
• “[T]he effect of the approved instruction [in Dreux v. Domec (1861) 18 Cal. 83]
was to impose liability upon one who had not taken part until after the
commencement of the prosecution.” (Lujan v. Gordon (1977) 70 Cal.App.3d 260,
263 [138 Cal.Rptr. 654].)
• “When, as here, the claim of malicious prosecution is based upon initiation of a
criminal prosecution, the question of probable cause is whether it was
objectively reasonable for the defendant . . . to suspect the plaintiff . . . had
committed a crime.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454,
465 [156 Cal.Rptr.3d 901].)
• “When there is a dispute as to the state of the defendant’s knowledge and the
existence of probable cause turns on resolution of that dispute, . . . the jury
must resolve the threshold question of the defendant’s factual knowledge or
belief. Thus, when . . . there is evidence that the defendant may have known
that the factual allegations on which his action depended were untrue, the jury
must determine what facts the defendant knew before the trial court can
determine the legal question whether such facts constituted probable cause to
institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p.
881, internal citations omitted.)
• “Admittedly, the fact of the grand jury indictment gives rise to a prima facie
case of probable cause, which the malicious prosecution plaintiff must rebut.
However, as respondents’ own authorities admit, that rebuttal may be by proof
that the indictment was based on false or fraudulent testimony.” (Williams v.
Hartford Ins. Co. (1983) 147 Cal.App.3d 893, 900 [195 Cal.Rptr. 448].)
• “Acquittal of the criminal charge, in the criminal action, did not create a conflict
of evidence on the issue of probable cause. [Citations.]” (Verdier v. Verdier
(1957) 152 Cal.App.2d 348, 352, fn. 3 [313 P.2d 123].)
• “ ‘[T]he plaintiff in a malicious prosecution action must plead and prove that the
prior judicial proceeding of which he complains terminated in his favor.’
Termination of the prior proceeding is not necessarily favorable simply because
the party prevailed in the prior proceeding; the termination must relate to the
merits of the action by reflecting either on the innocence of or lack of
responsibility for the misconduct alleged against him.” (Sagonowsky, supra, 64
Cal.App.4th at p. 128, internal citations omitted.)
• “ ‘The theory underlying the requirement of favorable termination is that it tends
to indicate the innocence of the accused, and coupled with the other elements of
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MALICIOUS PROSECUTION CACI No. 1500
lack of probable cause and malice, establishes the tort, that is, the malicious and
unfounded charge of crime against an innocent person.’ ” (Cote v. Henderson
(1990) 218 Cal.App.3d 796, 804 [267 Cal.Rptr. 274], quoting Jaffe v. Stone
(1941) 18 Cal.2d 146, 150 [114 P.2d 335].)
• “[I]n most cases, a person who merely alerts law enforcement to a possible
crime . . . is not liable if . . . law enforcement, on its own, after an
independent investigation, decides to prosecute.” (Cox v. Griffın (2019) 34
Cal.App.5th 440, 452 [246 Cal.Rptr.3d 185].)
• “Where a proceeding is terminated other than on the merits, the reasons
underlying the termination must be examined to see if it reflects the opinion of
the court or the prosecuting party that the action would not succeed. If a conflict
arises as to the circumstances explaining a failure to prosecute an action further,
the determination of the reasons underlying the dismissal is a question of fact.”
(Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations omitted.)
• “Generally, the requirements of the doctrine of collateral estoppel ‘will be met
when courts are asked to give preclusive effect to preliminary hearing probable
cause findings in subsequent civil actions for false arrest and malicious
prosecution. [Citation.]’ ‘A determination of probable cause at a preliminary
hearing may preclude a suit for false arrest or for malicious prosecution’].) ‘One
notable exception to this rule would be in a situation where the plaintiff alleges
that the arresting officer lied or fabricated evidence presented at the preliminary
hearing. [Citation.] When the officer misrepresents the nature of the evidence
supporting probable cause and that issue is not raised at the preliminary hearing,
a finding of probable cause at the preliminary hearing would not preclude
relitigation of the issue of integrity of the evidence.’ Defendants argue, and we
agree, that the stated exception itself contains an exception—i.e., if the plaintiff
alleges that the arresting officer lied or fabricated evidence at the preliminary
hearing, plaintiff challenges that evidence at the preliminary hearing as being
false, and the magistrate decides the credibility issue in the arresting officer’s
favor, then collateral estoppel still may preclude relitigation of the issue in a
subsequent civil proceeding involving probable cause.” (Greene v. Bank of
America (2015) 236 Cal.App.4th 922, 933 [186 Cal.Rptr.3d 887], internal
citations omitted.)
• “The plea of nolo contendere is considered the same as a plea of guilty. Upon a
plea of nolo contendere the court shall find the defendant guilty, and its legal
effect is the same as a plea of guilty for all purposes. It negates the element of a
favorable termination, which is a prerequisite to stating a cause of action for
malicious prosecution.” (Cote, supra, 218 Cal.App.3d at p. 803, internal citation
omitted.)
• “ ‘Should a conflict arise as to the circumstances explaining the failure to
prosecute, the trier of fact must exercise its traditional role in deciding the
conflict.’ ” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 185 [156
Cal.Rptr. 745], disapproved on other grounds in Sheldon Appel Co., supra, 47
Cal.3d at p. 882, original italics, internal citations omitted.)
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• “ ‘For purposes of a malicious prosecution claim, malice “is not limited to actual
hostility or ill will toward the plaintiff. . . .” [Citation.]’ ‘[I]f the defendant had
no substantial grounds for believing in the plaintiff’s guilt, but, nevertheless,
instigated proceedings against the plaintiff, it is logical to infer that the
defendant’s motive was improper.’ ” (Greene, supra, 216 Cal.App.4th at pp.
464–465, internal citation omitted.)
• “Malice may be inferred from want of probable cause, but want of probable
cause cannot be inferred from malice, but must be affirmatively shown by the
plaintiff.” (Verdier, supra, 152 Cal.App.2d at p. 354.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 552–570, 605
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.01 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.10 et seq. (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
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1501. Wrongful Use of Civil Proceedings
[Name of plaintiff] claims that [name of defendant] wrongfully brought a
lawsuit against [him/her/nonbinary pronoun/it]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] was actively involved in bringing [or
continuing] the lawsuit;
[2. That the lawsuit ended in [name of plaintiff]’s favor;]
[3. That no reasonable person in [name of defendant]’s circumstances
would have believed that there were reasonable grounds to bring
the lawsuit against [name of plaintiff];]
4. That [name of defendant] acted primarily for a purpose other than
succeeding on the merits of the claim;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 2 above, whether the earlier
lawsuit ended in [his/her/nonbinary pronoun/its] favor. But before I can
do so, you must decide whether [name of plaintiff] has proven the
following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
[The law [also] requires that the trial judge, rather than the jury, decide
if [name of plaintiff] has proven element 3 above, whether [name of
defendant] had reasonable grounds for bringing the earlier lawsuit
against [him/her/nonbinary pronoun/it]. But before I can do so, you must
decide whether [name of plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
New September 2003; Revised April 2008, October 2008
Directions for Use
Malicious prosecution requires that the proceeding have ended in the plaintiff’s
favor (element 2) and that the defendant did not reasonably believe that there were
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any grounds (probable cause) to initiate the proceeding (element 3). Probable cause
is to be decided by the court as a matter of law. However, the jury may be required
to find some preliminary facts before the court can make its legal determination,
including facts regarding what the defendant knew or did not know at the time. (See
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336,
765 P.2d 498].) If so, include element 3 and also the bracketed part of the
instruction that refers to element 3.
Favorable termination is handled in much the same way. If a proceeding is
terminated other than on the merits, there may be disputed facts that the jury must
find in order to determine whether there has been a favorable termination. (See
Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so,
include element 2 and also the bracketed part of the instruction that refers to
element 2. Once these facts are determined, the jury does not then make a second
determination as to whether there has been a favorable termination. The matter is
determined by the court based on the resolution of the disputed facts. (See Sierra
Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[element of favorable termination is for court to decide].)
Either or both of the elements of probable cause and favorable termination should
be omitted if there are no disputed facts regarding that element for the jury to
decide.
Element 4 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
• “Although the tort is usually called ‘malicious prosecution,’ the word
‘prosecution’ is not a particularly apt description of the underlying civil action.
The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to the
tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486,
internal citations omitted.)
• “To establish a cause of action for the malicious prosecution of a civil
proceeding, a plaintiff must plead and prove that the prior action (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination in his, plaintiff’s, favor; (2) was brought without probable cause; and
(3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13
Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
• “The remedy of a malicious prosecution action lies to recompense the defendant
who has suffered out of pocket loss in the form of attorney fees and costs, as
well as emotional distress and injury to reputation because of groundless
allegations made in pleadings which are public records.” (Sagonowsky v. More
(1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations omitted.)
• “The malicious commencement of a civil proceeding is actionable because it
harms the individual against whom the claim is made, and also because it
threatens the efficient administration of justice. The individual is harmed because
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he is compelled to defend against a fabricated claim which not only subjects him
to the panoply of psychological pressures most civil defendants suffer, but also
the additional stress of attempting to resist a suit commenced out of spite or ill
will, often magnified by slanderous allegations in the pleadings.” (Merlet v. Rizzo
(1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83], internal citation omitted.)
• “[The litigation privilege of Civil Code section 47] has been interpreted to apply
to virtually all torts except malicious prosecution.” (Kimmel v. Goland (1990) 51
Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
• “Liability for malicious prosecution is not limited to one who initiates an action.
A person who did not file a complaint may be liable for malicious prosecution if
he or she ‘instigated’ the suit or ‘participated in it at a later time.’ ” (Nunez v.
Pennisi (2015) 241 Cal.App.4th 861, 873 [193 Cal.Rptr.3d 912].)
• “[A] cause of action for malicious prosecution lies when predicated on a claim
for affirmative relief asserted in a cross-pleading even though intimately related
to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
• “A claim for malicious prosecution need not be addressed to an entire lawsuit; it
may . . . be based upon only some of the causes of action alleged in the
underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP
(2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
• “[F]avorable termination requires favorable resolution of the underlying action in
its entirety, not merely a single cause of action. ‘[I]f the defendant in the
underlying action prevails on all of the plaintiff’s claims, he or she may
successfully sue for malicious prosecution if any one of those claims was
subjectively malicious and objectively unreasonable. But if the underlying
plaintiff succeeds on any of his or her claims, the favorable termination
requirement is unsatisfied and the malicious prosecution action cannot be
maintained.’ ” (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th
117, 128 [277 Cal.Rptr.3d 501], internal citation omitted.)
• “[A] lawyer is not immune from liability for malicious prosecution simply
because the general area of law at issue is complex and there is no case law
with the same facts that establishes that the underlying claim was untenable.
Lawyers are charged with the responsibility of acquiring a reasonable
understanding of the law governing the claim to be alleged. That achieving such
an understanding may be more difficult in a specialized field is no defense to
alleging an objectively untenable claim.” (Franklin Mint Co., supra, 184
Cal.App.4th at p. 346.)
• “Our repeated references in Bertero to the types of harm suffered by an
‘individual’ who is forced to defend against a baseline suit do not indicate . . .
that a malicious prosecution action can be brought only by an individual. On the
contrary, there are valid policies which would be furthered by allowing
nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek
(1982) 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on
remand from United States Supreme Court at 33 Cal.3d 727 [but holding that
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public entity cannot sue for malicious prosecution].)
• “[T]he courts have refused to permit malicious prosecution claims when they are
based on a prior proceeding that is (1) less formal or unlike the process in the
superior court (i.e., a small claims hearing, an investigation or application not
resulting in a formal proceeding), (2) purely defensive in nature, or (3) a
continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p. 60.)
• “[I]t is not enough that the present plaintiff (former defendant) prevailed in the
action. The termination must ‘ “reflect on the merits,” ’ and be such that it
‘tended to indicate [the former defendant’s] innocence of or lack of
responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009)
176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
• “ ‘The entry of summary judgment for the defense on an underlying claim on
grounds of insufficient evidence does not establish as a matter of law that the
litigant necessarily can “state[] and substantiate[]” . . . a subsequent malicious
prosecution claim.’ ” (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35
Cal.App.5th 1109, 1120 [248 Cal.Rptr.3d 200].)
• “ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction,
laches, the statute of limitations or prematurity, does not constitute a favorable
termination because it does not reflect on the substantive merits of the
underlying claim. . . .’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
• “[Code of Civil Procedure] Section 581c, subdivision (c) provides that where a
motion for judgment of nonsuit is granted, ‘unless the court in its order for
judgment otherwise specifies, the judgment of nonsuit operates as an
adjudication upon the merits.’ . . . [¶] We acknowledge that not every judgment
of nonsuit should be grounds for a subsequent malicious prosecution action.
Some will be purely technical or procedural and will not reflect the merits of the
action. In such cases, trial courts should exercise their discretion to specify that
the judgment of nonsuit shall not operate as an adjudication upon the merits.”
(Nunez, supra, 241 Cal.App.4th at p. 874.)
• “ ‘ “[T]hat a malicious prosecution suit may be maintained where only one of
several claims in the prior action lacked probable cause [citation] does not alter
the rule there must first be a favorable termination of the entire action.” ’ Thus,
if the defendant in the underlying action prevails on all of the plaintiff’s claims,
he or she may successfully sue for malicious prosecution if any one of those
claims was subjectively malicious and objectively unreasonable. But if the
underlying plaintiff succeeds on any of his or her claims, the favorable
termination requirement is unsatisfied and the malicious prosecution action
cannot be maintained.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 64 [228
Cal.Rptr.3d 605], original italics, internal citation omitted.)
• “ ‘ “A voluntary dismissal may be an implicit concession that the dismissing
party cannot maintain the action and may constitute a decision on the merits.
[Citations.] ‘It is not enough, however, merely to show that the proceeding was
dismissed.’ [Citation.] The reasons for the dismissal of the action must be
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examined to determine whether the termination reflected on the merits.”
[Citations.]’ Whether that dismissal is a favorable termination for purposes of a
malicious prosecution claim depends on whether the dismissal of the [earlier]
Lawsuit is considered to be on the merits reflecting [plaintiff’s ‘innocence’ of the
misconduct alleged.” (JSJ Limited Partnership v. Mehrban (2012) 205
Cal.App.4th 1512, 1524 [141 Cal.Rptr.3d 338], internal citations omitted.)
• “If a conflict arises as to the circumstances explaining a failure to prosecute an
action further, the determination of the reasons underlying the dismissal is a
question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations
omitted.)
• “[W]hen a dismissal results from negotiation, settlement, or consent, a favorable
termination is normally not recognized. Under these latter circumstances, the
dismissal reflects ambiguously on the merits of the action.” (Weaver v. Superior
Court (1979) 95 Cal.App.3d 166, 184–185 [156 Cal.Rptr. 745], internal citations
omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47 Cal.3d at
p. 882.)
• “Not every case in which a terminating sanctions motion is granted necessarily
results in a ‘favorable termination.’ But where the record from the underlying
action is devoid of any attempt during discovery to substantiate allegations in the
complaint, and the court’s dismissal is justified by the plaintiff’s lack of evidence
to submit the case to a jury at trial, a prima facie showing of facts sufficient to
satisfy the ‘favorable termination’ element of a malicious prosecution claim is
established . . . .” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 219 [105
Cal.Rptr.3d 683].)
• “[T]he existence or absence of probable cause has traditionally been viewed as a
question of law to be determined by the court, rather than a question of fact for
the jury . . . . [¶] [It] requires a sensitive evaluation of legal principles and
precedents, a task generally beyond the ken of lay jurors . . . .” (Sheldon Appel
Co., supra, 47 Cal.3d at p. 875.)
• “When there is a dispute as to the state of the defendant’s knowledge and the
existence of probable cause turns on resolution of that dispute, . . . the jury
must resolve the threshold question of the defendant’s factual knowledge or
belief. Thus, when . . . there is evidence that the defendant may have known
that the factual allegations on which his action depended were untrue, the jury
must determine what facts the defendant knew before the trial court can
determine the legal question whether such facts constituted probable cause to
institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p.
881, internal citations omitted.)
• “Whereas the malice element is directly concerned with the subjective mental
state of the defendant in instituting the prior action, the probable cause element
calls on the trial court to make an objective determination of the
‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the
basis of the facts known to the defendant, the institution of the prior action was
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legally tenable.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 878, original italics.)
• “ ‘The benchmark for legal tenability is whether any reasonable attorney would
have thought the claim was tenable. [Citation.]’ ” (Oviedo v. Windsor Twelve
Properties, LLC (2012) 212 Cal.App.4th 97, 114 [151 Cal.Rptr.3d 117], internal
citation omitted.)
• “ ‘The facts to be analyzed for probable cause are those known to the defendant
[in the malicious prosecution action] at the time the underlying action was
filed.’ ” (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264 [245 Cal.Rptr. 888],
internal citations omitted.)
• “A litigant will lack probable cause for his action either if he relies upon facts
which he has no reasonable cause to believe to be true, or if he seeks recovery
upon a legal theory which is untenable under the facts known to him.” (Soukup
v. Law Offıces of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638,
139 P.3d 30].)
• “[W]e reject their contention that unpled hidden theories of liability are sufficient
to create probable cause.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542
[161 Cal.Rptr.3d 700].)
• “California courts have held that victory at trial, though reversed on appeal,
conclusively establishes probable cause.” (Roberts v. Sentry Life Insurance
(1999) 76 Cal.App.4th 375, 383 [90 Cal.Rptr.2d 408], original italics.)
• “California courts have long embraced the so-called interim adverse judgment
rule, under which ‘a trial court judgment or verdict in favor of the plaintiff or
prosecutor in the underlying case, unless obtained by means of fraud or perjury,
establishes probable cause to bring the underlying action, even though the
judgment or verdict is overturned on appeal or by later ruling of the trial court.’
This rule reflects a recognition that ‘[c]laims that have succeeded at a hearing on
the merits, even if that result is subsequently reversed by the trial or appellate
court, are not so lacking in potential merit that a reasonable attorney or litigant
would necessarily have recognized their frivolousness.’ That is to say, if a claim
succeeds at a hearing on the merits, then, unless that success has been procured
by certain improper means, the claim cannot be ‘totally and completely without
merit.’ Although the rule arose from cases that had been resolved after trial, the
rule has also been applied to the ‘denial of defense summary judgment motions,
directed verdict motions, and similar efforts at pretrial termination of the
underlying case.’ ” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776–777
[221 Cal.Rptr.3d 432, 400 P.3d 1], internal citations omitted.)
• “[T]he fraud exception requires ‘ “knowing use of false and perjured
testimony.” ’ ” (Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th
438, 452 [117 Cal.Rptr.3d 3].)
• “Probable cause may be present even where a suit lacks merit. . . . Suits which
all reasonable lawyers agree totally lack merit—that is, those which lack
probable cause—are the least meritorious of all meritless suits. Only this
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subgroup of meritless suits present[s] no probable cause.” (Roberts, supra, 76
Cal.App.4th at p. 382.)
• “[A]n attorney may be held liable for malicious prosecution for continuing to
prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004)
32 Cal.4th 958, 970 [12 Cal.Rptr.3d 54, 87 P.3d 802].)
• “Although attorneys may rely on their clients’ allegations at the outset of a case,
they may not continue to do so if the evidence developed through discovery
indicates the allegations are unfounded or unreliable.“ (Cuevas-Martinez, supra,
35 Cal.App.5th at p. 1121.)
• “[W]here several claims are advanced in the underlying action, each must be
based on probable cause.” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 459
[197 Cal.Rptr.3d 227].)
• “As an element of the tort of malicious prosecution, malice at its core refers to
an improper motive for bringing the prior action. As an element of liability it
reflects the core function of the tort, which is to secure compensation for harm
inflicted by misusing the judicial system, i.e., using it for something other than
to enforce legitimate rights and secure remedies to which the claimant may
tenably claim an entitlement. Thus the cases speak of malice as being present
when a suit is actuated by hostility or ill will, or for some purpose other than to
secure relief. It is also said that a plaintiff acts with malice when he asserts a
claim with knowledge of its falsity, because one who seeks to establish such a
claim ‘can only be motivated by an improper purpose.’ A lack of probable cause
will therefore support an inference of malice.” (Drummond, supra, 176
Cal.App.4th at pp. 451–452, original italics, internal citations omitted.)
• “A lack of probable cause is a factor that may be considered in determining if
the claim was prosecuted with malice [citation], but the lack of probable cause
must be supplemented by other, additional evidence.” (Silas v. Arden (2013) 213
Cal.App.4th 75, 90 [152 Cal.Rptr.3d 255].)
• “Because malice concerns the former plaintiff’s actual mental state, it necessarily
presents a question of fact.” (Drummond, supra, 176 Cal.App.4th at p. 452.)
• “ ‘Since parties rarely admit an improper motive, malice is usually proven by
circumstantial evidence and inferences drawn from the evidence.’ ‘[M]alice can
be inferred when a party continues to prosecute an action after becoming aware
that the action lacks probable cause.’ ” (Cuevas-Martinez, supra, 35 Cal.App.5th
at p. 1122, original italics.)
• “Negligence does not equate with malice. Nor does the negligent filing of a case
necessarily constitute the malicious prosecution of that case.” (Grindle v. Lorbeer
(1987) 196 Cal.App.3d 1461, 1468 [242 Cal.Rptr. 562].)
• “The motive of the defendant must have been something other than that of
bringing a perceived guilty person to justice or the satisfaction in a civil action
of some personal or financial purpose.” (Downey Venture v. LMI Insurance Co.
(1998) 66 Cal.App.4th 478, 494 [78 Cal.Rptr.2d 142], internal citations omitted.)
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• “Malice does not require that the defendants harbor actual ill will toward the
plaintiff in the malicious prosecution case, and liability attaches to attitudes that
range ‘ “from open hostility to indifference. [Citations.]” ’ ” (Cole v. Patricia A.
Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1113–1114 [142
Cal.Rptr.3d 646], internal citations omitted.)
• “ ‘ “Suits with the hallmark of an improper purpose” include, but are not
necessarily limited to, “those in which: ‘ “. . . (1) the person initiating them
does not believe that his claim may be held valid; (2) the proceedings are begun
primarily because of hostility or ill will; (3) the proceedings are initiated solely
for the purpose of depriving the person against whom they are initiated of a
beneficial use of his property; (4) the proceedings are initiated for the purpose of
forcing a settlement which has no relation to the merits of the claim.” ’ ”
[Citation.] [¶] Evidence tending to show that the defendants did not subjectively
believe that the action was tenable is relevant to whether an action was instituted
or maintained with malice. [Citation.]’ ” (Oviedo, supra, 212 Cal.App.4th at pp.
113–114.)
• “Although Zamos [supra] did not explicitly address the malice element of a
malicious prosecution case, its holding and reasoning compel us to conclude that
malice formed after the filing of a complaint is actionable.” (Daniels, supra, 182
Cal.App.4th at p. 226.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 554, 557, 562–569,
571–606
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Liability
For Unfair Collection Practices—Tort Liability, ¶ 2:428 (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§§ 43.01–43.10 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.10 et seq. (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.20 et seq. (Matthew Bender)
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1502. Wrongful Use of Administrative Proceedings
[Name of plaintiff] claims that [name of defendant] wrongfully brought an
administrative proceeding against [him/her/nonbinary pronoun/it]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was actively involved in bringing [or
continuing] the administrative proceeding;
2. That [name of administrative body] did not conduct an independent
investigation;
[3. That the proceeding ended in [name of plaintiff]’s favor;]
[4. That no reasonable person in [name of defendant]’s circumstances
would have believed that there were reasonable grounds to bring
the proceeding against [name of plaintiff];]
5. That [name of defendant] acted primarily for a purpose other than
succeeding on the merits of the claim;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 3 above, whether the criminal
proceeding ended in [his/her/nonbinary pronoun/its] favor. But before I
can do so, you must decide whether [name of plaintiff] has proven the
following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
[The law [also] requires that the trial judge, rather than the jury, decide
if [name of plaintiff] has proven element 4 above, whether a reasonable
person in [name of defendant]’s circumstances would have believed that
there were reasonable grounds for bringing the proceeding against [name
of plaintiff]. But before I can do so, you must decide whether [name of
plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
New September 2003; Revised April 2008, October 2008
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Directions for Use
Malicious prosecution requires that the proceeding have ended in the plaintiff’s
favor (element 3) and that the defendant did not reasonably believe that there were
any grounds (probable cause) to initiate the proceeding (element 4). Probable cause
is to be decided by the court as a matter of law. However, it may require the jury to
find some preliminary facts before the court can make its legal determination,
including facts regarding what the defendant knew or didn’t know at the time. (See
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254 Cal.Rptr. 336,
765 P.2d 498].) If so, include element 4 and also the bracketed part of the
instruction that refers to element 4.
Favorable termination is handled in much the same way. If a proceeding is
terminated other than on the merits, there may be disputed facts that the jury must
find in order to determine whether there has been a favorable termination. (See
Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so,
include element 3 and also the bracketed part of the instruction that refers to
element 3. Once these facts are determined, the jury does not then make a second
determination as to whether there has been a favorable termination. The matter is
determined by the court based on the resolution of the disputed facts. See Sierra
Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[element of favorable termination is for court to decide].)
Either or both of the elements of probable cause and favorable termination should
be omitted if there are no disputed facts regarding that element for the jury.
Element 5 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
• “ ‘Where the prosecuting officer acts on an independent investigation of his own
instead of on the statement of facts by the party making the complaint, the latter
has not caused the prosecution and cannot be held liable in an action for
malicious prosecution.’ ” (Werner v. Hearst Publications, Inc. (1944) 65
Cal.App.2d 667, 673 [151 P.2d 308], internal citation omitted.)
• “We adopt the rule set forth in section 680 of the Restatement of Torts and hold
that an action for malicious prosecution may be founded upon the institution of a
proceeding before an administrative agency.” (Hardy v. Vial (1957) 48 Cal.2d
577, 581 [311 P.2d 494].)
• Government Code section 821.6 provides: “A public employee is not liable for
injury caused by his instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment, even if he acts maliciously and
without probable cause.”
• “ ‘Where the prosecuting officer acts on an independent investigation of his own
instead of on the statement of facts by the party making the complaint, the latter
has not caused the prosecution and cannot be held liable in an action for
malicious prosecution.’ ” (Werner v. Hearst Publications, Inc. (1944) 65
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Cal.App.2d 667, 673 [151 P.2d 308], internal citation omitted.)
• “[W]e hold that the State Bar, not respondents, initiated, procured or continued
the disciplinary proceedings of [plaintiff]. Therefore, [plaintiff] failed to allege
the elements required for a malicious prosecution of an administrative
proceeding against respondents.” (Stanwyck v. Horne (1983) 146 Cal.App.3d
450, 459 [194 Cal.Rptr. 228].)
• “The [Board of Medical Quality Assurance] is similar to the State Bar
Association. Each is empowered and directed to conduct an independent
investigation of all complaints from the public prior to the filing of an
accusation.” (Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125 [195
Cal.Rptr. 5], internal citation omitted.)
• “Hogen and Stanwyck placed an additional pleading burden upon the plaintiff in
a malicious prosecution case based upon the favorable termination of an
administrative proceeding. Those cases held that since it is the administrative
body, and not the individual initiating the complaint, which actually files the
disciplinary proceeding, a cause of action for malicious prosecution will not lie
if the administrative body conducts an independent preliminary investigation
prior to initiating disciplinary proceedings.” (Johnson v. Superior Court (1994)
25 Cal.App.4th 1564, 1568 [31 Cal.Rptr.2d 199].)
• “Where a proceeding is terminated other than on the merits, the reasons
underlying the termination must be examined to see if it reflects the opinion of
the court or the prosecuting party that the action would not succeed. If a conflict
arises as to the circumstances explaining a failure to prosecute an action further,
the determination of the reasons underlying the dismissal is a question of fact.”
(Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citation omitted.)
• The same rules for determining probable cause in the wrongful institution of
civil proceedings apply to cases alleging the wrongful institution of
administrative proceedings. (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657,
1666, fn. 4 [26 Cal.Rptr.2d 778].)
• “When there is a dispute as to the state of the defendant’s knowledge and the
existence of probable cause turns on resolution of that dispute, . . . the jury
must resolve the threshold question of the defendant’s factual knowledge or
belief. Thus, when . . . there is evidence that the defendant may have known
that the factual allegations on which his action depended were untrue, the jury
must determine what facts the defendant knew before the trial court can
determine the legal question whether such facts constituted probable cause to
institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p.
881, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 607–610
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§§ 43.01–43.06 (Matthew Bender)
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31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
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1503. Affirmative Defense—Proceeding Initiated by Public
Employee Within Scope of Employment (Gov. Code, § 821.6)
[Name of public entity defendant] claims that it cannot be held responsible
for [name of plaintiff]’s harm, if any, because the [specify proceeding, e.g.,
civil action] was initiated by its employee who was acting within the
scope of [his/her/nonbinary pronoun] employment. To establish this
defense, [name of defendant] must prove that [name of employee] was
acting within the scope of [his/her/nonbinary pronoun] employment.
New September 2003; Renumbered from CACI No. 1506 June 2013; Revised May
2018
Directions for Use
Give this instruction if there is an issue of fact as to whether the proceeding giving
rise to the alleged malicious prosecution claim was initiated as a governmental
action. Government Code section 821.6 provides immunity from liability for
malicious prosecution for a public employee who is acting within the scope of
employment, even if the employee acts maliciously and without probable cause. If
the employee is immune, then there can be no vicarious liability on the entity. (Gov.
Code, § 815.2.) This immunity is not unqualified, however; it applies only if the
employee was acting within the scope of employment. (Tur v. City of Los Angeles
(1996) 51 Cal.App.4th 897, 904 [59 Cal.Rptr.2d 470].)
For an instruction on scope of employment, see CACI No. 3720, Scope of
Employment, in the Vicarious Responsibility series.
Sources and Authority
• Public Entity Vicarious Liability for Acts of Employee. Government Code
section 815.2.
• Public Employee Immunity. Government Code section 821.6.
• “The defendants did not enjoy an unqualified immunity from suit. Their
immunity would have depended on their proving by a preponderance of the
evidence [that] they were acting within the scope of their employment in doing
the acts alleged to constitute malicious prosecution.” (Tur, supra, 51 Cal.App.4th
at p. 904 [failure to instruct jury under section 821.6 was prejudicial error].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 434 et seq.
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
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CACI No. 1503 MALICIOUS PROSECUTION
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.31 (Matthew Bender)
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1504. Former Criminal Proceeding—“Actively Involved” Explained
[Name of defendant] was “actively involved” in causing [name of plaintiff]
to be prosecuted [or in causing the continuation of the prosecution] if
after learning that there was no probable cause that [name of plaintiff]
had committed a crime, [he/she/nonbinary pronoun] sought out the police
or prosecutorial authorities and falsely reported facts to them indicating
that [name of plaintiff] had committed a crime. Merely giving testimony
or responding to law enforcement inquiries is not active involvement.
New June 2015
Directions for Use
Give this instruction in a malicious prosecution case arising from an earlier criminal
proceeding. This instruction explains what is meant by “active involvement” in a
criminal prosecution, as used in element 1 of CACI No. 1500, Former Criminal
Proceeding—Essential Factual Elements.
Sources and Authority
• “Although a criminal prosecution normally is commenced through the action of
government authorities, a private person may be liable for malicious prosecution
under certain circumstances based on his or her role in the criminal proceeding.
‘The relevant law is clear: “One may be civilly liable for malicious prosecution
without personally signing the complaint initiating the criminal proceeding.” ’ ”
(Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1481 [178 Cal.Rptr.3d 363,
internal citation omitted.)
• “Malicious prosecution consists of initiating or procuring the arrest and
prosecution of another under lawful process, but from malicious motives and
without probable cause. . . . . [Italics in original.] The test is whether the
defendant was actively instrumental in causing the prosecution.’ ” (Sullivan v.
County of Los Angeles (1974) 12 Cal.3d 710, 720 [117 Cal. Rptr. 241, 527 P.2d
865], original italics.)
• “Cases dealing with actions for malicious prosecution against private persons
require that the defendant has at least sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that plaintiff has
committed a crime.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454,
464 [156 Cal.Rptr.3d 901].)
• “Public policy requires that ‘private persons who aid in the enforcement of the
law should be given an effective protection against the prejudice which is likely
to arise from the termination of the prosecution in favor of the accused.’ ”
(Cedars-Sinai Medical Ctr. v. Superior Court (1988) 206 Cal.App.3d 414, 418
[253 Cal.Rptr. 561].)
• “[M]erely giving testimony and responding to law enforcement inquiries in an
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active criminal proceeding does not constitute malicious prosecution.” (Zucchet,
supra, 229 Cal.App.4th at p. 1482.)
• “[T]o create liability for malicious prosecution . . . [t]he person must ‘take
[some affirmative action to encourage the prosecution by way of advice or
pressure, as opposed to merely providing information.’ ” (Zucchet, supra, 229
Cal.App.4th at p. 1485.)
• “According to section 655 of the Restatement, ‘[a] private person who takes an
active part in continuing or procuring the continuation of criminal proceedings
initiated by himself or by another is subject to the same liability for malicious
prosecution as if he had then initiated the proceedings.’ ” (Zucchet, supra, 229
Cal.App.4th at p. 1483.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 561
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.03 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.19 (Matthew Bender)
1505–1509. Reserved for Future Use
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1510. Affirmative Defense—Reliance on Counsel
[Name of defendant] claims that [he/she/nonbinary pronoun] had
reasonable grounds for [causing or continuing the criminal proceeding/
bringing or continuing a [lawsuit/administrative proceeding]] because
[he/she/nonbinary pronoun] was relying on the advice of an attorney. To
succeed, [name of defendant] must prove both of the following:
1. That [name of defendant] made a full and honest disclosure of all
the important facts known to [him/her/nonbinary pronoun] to the
[district attorney/attorney]; and
2. That [he/she/nonbinary pronoun] reasonably relied on the [district
attorney/attorney]’s advice.
New September 2003; Renumbered from CACI No. 1505 June 2013
Sources and Authority
• “ ‘Good faith reliance on the advice of counsel, after truthful disclosure of all
the relevant facts, is a complete defense to a malicious prosecution claim.’ The
burden of proving the advice of counsel defense is on [defendant].” (Nunez v.
Pennisi (2015) 241 Cal.App.4th 861, 876–877 [193 Cal.Rptr.3d 912], internal
citation omitted.)
• “[I]f the initiator acts in bad faith or withholds from counsel facts he knew or
should have known would defeat a cause of action otherwise appearing from the
information supplied, [the] defense fails.” (Bertero v. National General Corp.
(1974) 13 Cal.3d 43, 53–54 [118 Cal.Rptr. 184, 529 P.2d 608].)
• “[T]he defense that a criminal prosecution was commenced upon the advice of
counsel is unavailing in an action for malicious prosecution if it appears . . .
that the defendant did not believe that the accused was guilty of the crime
charged.” (Singleton v. Singleton (1945) 68 Cal.App.2d 681, 695 [157 P.2d
886].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 602, 604
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.07 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.37, 147.46 (Matthew Bender)
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1511. Wrongful Use of Civil Proceedings—Affirmative
Defense—Attorney’s Reliance on Information Provided by Client
When filing a lawsuit for a client, an attorney is entitled to rely on the
facts and information provided by the client.
[Name of attorney defendant] claims that [he/she/nonbinary pronoun] had
reasonable grounds for bringing the lawsuit against [name of plaintiff]
because [he/she/nonbinary pronoun] was relying on facts and information
provided by [his/her/nonbinary pronoun] client. To succeed on this
defense, [name of attorney defendant] must prove all of the following:
1. That [name of client] provided [name of attorney defendant] with
the following information: [specify information on which attorney
relied];
2. That [name of attorney defendant] did not know that this
information was false or inaccurate; and
3. That [name of attorney defendant] relied on the facts and
information provided by the client.
New June 2013; Revised June 2014, May 2020
Directions for Use
Give this instruction if an attorney defendant alleges reliance on information
provided by the client to establish probable cause. If a civil proceeding other than a
lawsuit is involved, substitute the appropriate word for “lawsuit” throughout.
The presence or absence of probable cause on undisputed facts is a question of law
for the court. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881
[254 Cal.Rptr. 336, 765 P.2d 498]; CACI No. 1501, Wrongful Use of Civil
Proceedings.) The questions here for the jury to resolve are what information was
communicated to the attorney that established apparent probable cause, and whether
the attorney knew that the information was inaccurate.
The attorney generally has no obligation to investigate the information provided by
the client before filing suit. (See Sheldon Appel Co., supra, 47 Cal.3d at pp.
882–883.) Therefore, there is no liability under a theory that the attorney should
have known that the information was false. Actual knowledge is required. But if the
attorney later learns that the client has not been truthful, the attorney may no longer
rely on the client’s information to continue the lawsuit. (Daniels v. Robbins (2010)
182 Cal.App.4th 204, 223 [105 Cal.Rptr.3d 683].)
Sources and Authority
• “In general, a lawyer ‘is entitled to rely on information provided by the client.’
If the lawyer discovers the client’s statements are false, the lawyer cannot rely
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MALICIOUS PROSECUTION CACI No. 1511
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223, internal citation omitted.)
• “[W]hen evaluating a client’s case and making an initial assessment of tenability,
the attorney is entitled to rely on information provided by the client. An
exception to this rule exists where the attorney is on notice of specific factual
mistakes in the client’s version of events. Absent such notice, an attorney ‘may,
without being guilty of malicious prosecution, vigorously pursue litigation in
which he is unsure of whether his client or the client’s adversary is truthful, so
long as that issue is genuinely in doubt.’ A respected authority has summed up
the issue as follows: ‘Usually, the client imparts information upon which the
attorney relies in determining whether probable cause exists for initiating a
proceeding. The rule is that the attorney may rely on those statements as a basis
for exercising judgment and providing advice, unless the client’s representations
are known to be false.’ ” (Morrison v. Rudolph (2002) 103 Cal.App.4th 506,
512–513 [126 Cal.Rprt.2d 747], disapproved on other grounds in Zamos v.
Stroud (2004) 32 Cal.4th 958, 972[12 Cal.Rptr.3d 54, 87 P.3d 802], internal
citations omitted.)
• “The trial court found the undisputed facts establish that the lawyers had
probable cause to assert the fraudulent inducement claim. We agree. It is
undisputed that the allegations in the complaint accurately reflected the facts as
given to the lawyers by [client] and that she never told them those facts were
incorrect. The information provided to the lawyers, if true, was sufficient to state
a cause of action . . . .” (Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th
613, 625 [124 Cal.Rptr.2d 556], disapproved on other grounds in Zamos, supra,
32 Cal.4th at p. 972.)
• “Normally, the adequacy of a prefiling investigation is not relevant to the
determination of probable cause.” (Swat-Fame, Inc., supra, 101 Cal.App.4th at p.
627, disapproved on other grounds in Zamos, supra, 32 Cal.4th at p. 972.)
• “If the lawyer discovers the client’s statements are false, the lawyer cannot rely
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 554, 603
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.05 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.27 et seq. (Matthew Bender)
1512–1519. Reserved for Future Use
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1520. Abuse of Process—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully [insert legal
procedure, e.g., “took a deposition”]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] [insert legal procedure, e.g., “took the
deposition of [name of deponent]”];
2. That [name of defendant] intentionally used this legal procedure to
[insert alleged improper purpose that procedure was not designed to
achieve];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Sources and Authority
• “ ‘The common law tort of abuse of process arises when one uses the court’s
process for a purpose other than that for which the process was designed.
[Citations.] It has been ‘interpreted broadly to encompass the entire range of
“procedures” incident to litigation.’ [Citation.] [¶] ‘[T]he essence of the tort [is]
. . . misuse of the power of the court; it is an act done in the name of the court
and under its authority for the purpose of perpetrating an injustice.’ [Citation.]’ ”
(S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41 [176 Cal.Rptr.3d 567].)
• “To establish a cause of action for abuse of process, a plaintiff must plead two
essential elements: that the defendant (1) entertained an ulterior motive in using
the process and (2) committed a wilful act in a wrongful manner.” (Coleman v.
Gulf Insurance Group (1986) 41 Cal.3d 782, 792 [226 Cal.Rptr. 90, 718 P.2d
77], internal citations omitted.)
• “A cause of action for abuse of process cannot be viable absent some harm to
the plaintiff caused by the abuse of process.” (Yee v. Superior Court (2019) 31
Cal. App. 5th 26, 37 [242 Cal.Rptr.3d 439].)
• “[Plaintiff]’s complaint indicates that he has pleaded the tort of abuse of process,
long recognized at common law but infrequently utilized.” (Kappel v. Bartlett
(1988) 200 Cal.App.3d 1457, 1463 [246 Cal.Rptr. 815], internal citation
omitted.)
• “Abuse of process is not just another name for malicious prosecution. Simply
filing or maintaining a lawsuit for an improper purpose (such as might support a
malicious prosecution cause of action) is not abuse of process. [Citation.] [¶]
Malicious prosecution and abuse of process are distinct. The former concerns a
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meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse
of the tools the law affords litigants once they are in a lawsuit (regardless of
whether there was probable cause to commence that lawsuit in the first place).
Hence, abuse of process claims typically arise for improper or excessive
attachments [citation] or improper use of discovery [citation].” (S.A., supra, 229
Cal.App.4th at pp. 41–42, original italics.)
• “[W]hile a defendant’s act of improperly instituting or maintaining an action
may, in an appropriate case, give rise to a cause of action for malicious
prosecution, the mere filing or maintenance of a lawsuit—even for an improper
purpose—is not a proper basis for an abuse of process action.” (JSJ Limited
Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 [141 Cal.Rptr.3d
338].)
• “Some definite act or threat not authorized by the process or aimed at an
objective not legitimate in the use of the process is required. And, generally, an
action lies only where the process is used to obtain an unjustifiable collateral
advantage. For this reason, mere vexation [and] harassment are not recognized as
objectives sufficient to give rise to the tort.” (Younger v. Solomon (1974) 38
Cal.App.3d 289, 297 [113 Cal.Rptr. 113], internal citations omitted.)
• “Process is action taken pursuant to judicial authority. It is not action taken
without reference to the power of the court.” (Adams v. Superior Court (1992) 2
Cal.App.4th 521, 530 [3 Cal.Rptr.2d 49].)
• “This broad reach of the ‘abuse of process’ tort can be explained historically,
since the tort evolved as a ‘catch-all’ category to cover improper uses of the
judicial machinery that did not fit within the earlier established, but narrowly
circumscribed, action of malicious prosecution.” (Younger, supra, 38 Cal.App.3d
at p. 296, internal citations omitted.)
• “ ‘The improper purpose usually takes the form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, such as the surrender
of property or the payment of money, by the use of the process as a threat or a
club.’ ” (Spellens v. Spellens (1957) 49 Cal.2d 210, 232–233 [317 P.2d 613],
internal citation omitted.)
• “[A]n improper purpose may consist in achievement of a benefit totally
extraneous to or of a result not within its legitimate scope. Mere ill will against
the adverse party in the proceedings does not constitute an ulterior or improper
motive.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 876 [168
Cal.Rptr. 361], internal citations omitted.)
• “Merely obtaining or seeking process is not enough; there must be subsequent
abuse, by a misuse of the judicial process for a purpose other than that which it
was intended to serve. The gist of the tort is the improper use of the process
after it is issued.” (Adams, supra, 2 Cal.App.4th at pp. 530–531, internal
citations omitted.)
• “ ‘ “Some definite act or threat not authorized by the process, or aimed at an
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CACI No. 1520 MALICIOUS PROSECUTION
objective not legitimate in the use of the process, is required; and there is no
liability where the defendant has done nothing more than carry out the process
to its authorized conclusion, even though with bad intentions.” ’ ” (Clark
Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 524 [154 Cal.Rptr. 874],
internal citations omitted.)
• “[I]t is consistent with the purpose of section 47, subdivision (2) to exempt
malicious prosecution while still applying the privilege to abuse of process
causes of action.” (Abraham v. Lancaster Community Hospital (1990) 217
Cal.App.3d 796, 824 [266 Cal.Rptr. 360].)
• “[T]he scope of ‘publication or broadcast’ includes noncommunicative conduct
like the filing of a motion for a writ of sale, the filing of assessment liens, or the
filing of a mechanic’s lien. The privilege also applies to conduct or publications
occurring outside the courtroom, to conduct or publications which are legally
deficient for one reason or another, and even to malicious or fraudulent conduct
or publications.” (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134 [100
Cal.Rptr.2d 602], internal citations omitted.)
• “The use of the machinery of the legal system for an ulterior motive is a classic
indicia of the tort of abuse of process. However, the tort requires abuse of legal
process, not just filing suit.” (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359
[82 Cal.Rptr.2d 281], internal citations omitted.)
• “We have located no authority extending the tort of abuse of process to
administrative proceedings. Application of the tort to administrative proceedings
would not serve the purpose of the tort, which is to preserve the integrity of the
court.” (Stolz v. Wong Communications Ltd. Partnership (1994) 25 Cal.App.4th
1811, 1822–1823 [31 Cal.Rptr.2d 229], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 611–622
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§§ 43.20–43.25 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.51 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.70 et seq. (Matthew Bender)
1521–1529. Reserved for Future Use
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1530. Apportionment of Attorney Fees and Costs Between Proper
and Improper Claims
[Name of plaintiff] claims damages for attorney fees and costs reasonably
and necessarily incurred in defending the underlying lawsuit.
If you find that [name of plaintiff] is entitled to recover damages from
[name of defendant], [name of plaintiff] is only entitled to attorney fees and
costs reasonably and necessarily incurred in defending those claims that
were brought without reasonable grounds. Those claims are [specify].
[Name of plaintiff] is not entitled to recover attorney fees and costs
incurred in defending against the following claims: [specify].
[Name of defendant] must prove the amount of attorney fees and costs
that should be apportioned to those claims for which recovery is not
allowed.
New June 2013
Directions for Use
Give this instruction if the court has found as a matter of law that some, but not all,
of the claims in the underlying action were brought without probable cause. The
elements of probable cause and favorable termination are to be decided by the court
as a matter of law. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863,
881 [254 Cal.Rptr. 336, 765 P.2d 498] [probable cause]; Sierra Club Found. v.
Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726] [favorable
termination]; see also the Directions for Use to CACI No. 1501, Wrongful Use of
Civil Proceedings.)
If there are disputed facts that the jury must resolve before the court can make a
finding on probable cause, this instruction should not be presented to the jury until
after it has determined the facts on which the court’s finding will be based.
Sources and Authority
• “Having established the liability of . . . defendants . . . , the [plaintiffs] were
entitled to recover as part of their compensatory damage award the costs of
defending the [underlying] action including their reasonable attorney fees.”
(Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 90 [101 Cal.Rptr.3d 303].)
• “As in the case of the assertion of a maliciously prosecuted complaint with one
for which there was probable cause, the burden of proving such an
apportionment must rest with the party whose malicious conduct created the
problem. To place the burden on the injured party rather than upon the
wrongdoer would, in effect, clothe the transgressor with immunity when, because
of the interrelationship of the defense and cross-action, the injured party could
not apportion his damages.”(Bertero v. National General Corp. (1974) 13 Cal.3d
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43, 60 [118 Cal.Rptr. 184, 529 P.2d 608], internal citation omitted.)
• “Defendants also charge that under the Bertero rule the apportionment of
damages between the theories of liability that are and are not supported by
probable cause is difficult and ‘highly speculative.’ There is no showing,
however, that juries cannot perform that task fairly and consistently if they are
properly instructed—they draw more subtle distinctions every day. Moreover,
any difficulty in this regard is chargeable to the tortfeasor . . . .” (Crowley v.
Katleman (1994) 8 Cal.4th 666, 690 [34 Cal.Rptr.2d 386, 881 P.2d 1083].)
• “It was the defendants’ burden, however, not the [plaintiffs]’, to prove such an
allocation, just as it generally is the burden of the defendant in a malicious
prosecution action to prove certain attorney fees incurred in the underlying
action are not recoverable because they are attributable to claims that had been
properly pursued.” (Jackson, supra, 179 Cal.App.4th at p. 96.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 554
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-D, Costs,
¶ 17:384 et seq. (The Rutter Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-E,
Attorney Fees As Costs, ¶ 17:544 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.08 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.18 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.45 (Matthew Bender)
1531–1599. Reserved for Future Use
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VF-1500. Malicious Prosecution—Former Criminal Proceeding
We answer the questions submitted to us as follows:
1. Was [name of defendant] actively involved in causing [name of
plaintiff] to be arrested [and prosecuted] [or in causing the
continuation of the prosecution]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] act primarily for a purpose other than
that of bringing [name of plaintiff] to justice?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016, May 2018
Directions for Use
This verdict form is based on CACI No. 1500, Former Criminal Proceeding. This
form can be adapted to include the affirmative defense of reliance on counsel. See
VF-1502 for a form that includes this affirmative defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
In question 1, include the bracketed reference to prosecution if the arrest was
without a warrant.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1500, Former Criminal
Proceeding, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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MALICIOUS PROSECUTION VF-1500
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
949
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VF-1501. Malicious Prosecution—Wrongful Use of Civil
Proceedings
We answer the questions submitted to us as follows:
1. Was [name of defendant] actively involved in bringing [or
continuing] a lawsuit against [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] act primarily for a purpose other than
succeeding on the merits of the claim?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, June 2011,
December 2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings.
See VF-1502 for a form that includes the affirmative defense of reliance on counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3).
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
951
Copyright Judicial Council of California
VF-1502. Malicious Prosecution—Wrongful Use of Civil
Proceedings—Affirmative Defense—Reliance on Counsel
We answer the questions submitted to us as follows:
1. Was [name of defendant] actively involved in bringing [or
continuing] the lawsuit against [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] make a full and honest disclosure of all
the important facts known to [him/her/nonbinary pronoun] to [his/
her/nonbinary pronoun] attorney?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, skip question 3 and answer question 4.
3. Did [name of defendant] reasonably rely on [his/her/nonbinary
pronoun] attorney’s advice?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] act primarily for a purpose other than
succeeding on the merits of the claim?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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MALICIOUS PROSECUTION VF-1502
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings,
and CACI No. 1510, Affırmative Defense—Reliance on Counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
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VF-1502 MALICIOUS PROSECUTION
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
954
Copyright Judicial Council of California
VF-1503. Malicious Prosecution—Wrongful Use of Administrative
Proceedings
We answer the questions submitted to us as follows:
1. Was [name of defendant] actively involved in bringing [or
continuing] an administrative proceeding against [name of
plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of administrative body] conduct an independent
investigation?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] act primarily for a purpose other than
succeeding on the merits of the claim?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
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VF-1503 MALICIOUS PROSECUTION
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1502, Wrongful Use of Administrative
Proceedings. See VF-1502 for a form that includes the affirmative defense of
reliance on counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1502, elements 3 and 4.)
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
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MALICIOUS PROSECUTION VF-1503
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1504. Abuse of Process
We answer the questions submitted to us as follows:
1. Did [name of defendant] [insert legal procedure, e.g., “take the
deposition of [name of deponent]”]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] intentionally use this legal procedure to
[insert alleged improper purpose that procedure was not designed to
achieve]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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MALICIOUS PROSECUTION VF-1504
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1520, Abuse of Process—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1505–VF-1599. Reserved for Future Use
959
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Copyright Judicial Council of California
EMOTIONAL DISTRESS
1600. Intentional Infliction of Emotional Distress—Essential Factual Elements
1601. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
1602. Intentional Infliction of Emotional Distress—“Outrageous Conduct” Defined
1603. Intentional Infliction of Emotional Distress—“Reckless Disregard” Defined
1604. Intentional Infliction of Emotional Distress—“Severe Emotional Distress”
Defined
1605. Intentional Infliction of Emotional Distress—Affirmative
Defense—Privileged Conduct
1606–1619. Reserved for Future Use
1620. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim—Essential Factual Elements
1621. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander—Essential Factual Elements
1622. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements
1623. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or
Fraudulent Conduct—Essential Factual Elements
1624–1699. Reserved for Future Use
VF-1600. Intentional Infliction of Emotional Distress
VF-1601. Intentional Infliction of Emotional Distress—Affirmative
Defense—Privileged Conduct
VF-1602. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or
AIDS
VF-1603. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim
VF-1604. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander
VF-1605. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS
VF-1606. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or
Fraudulent Conduct
VF-1607–VF-1699. Reserved for Future Use
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1600. Intentional Infliction of Emotional Distress—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/
her/nonbinary pronoun] to suffer severe emotional distress. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant]’s conduct was outrageous;
2. [That [name of defendant] intended to cause [name of plaintiff]
emotional distress;]
2. [or]
2. [That [name of defendant] acted with reckless disregard of the
probability that [name of plaintiff] would suffer emotional distress,
knowing that [name of plaintiff] was present when the conduct
occurred;]
3. That [name of plaintiff] suffered severe emotional distress; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s severe emotional distress.
New September 2003
Directions for Use
CACI Nos. 1602–1604, regarding the elements of intentional infliction of emotional
distress, should be given with this instruction.
Depending on the facts of the case, a plaintiff could choose one or both of the
bracketed choices in element 2.
Sources and Authority
• “A cause of action for intentional infliction of emotional distress exists when
there is ‘(1) extreme and outrageous conduct by the defendant with the intention
of causing, or reckless disregard of the probability of causing, emotional distress;
(2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual
and proximate causation of the emotional distress by the defendant’s outrageous
conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to
exceed all bounds of that usually tolerated in a civilized community.’ And the
defendant’s conduct must be ‘intended to inflict injury or engaged in with the
realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035,
1050–1051 [95 Cal.Rptr.3d 636, 209 P.3d 963])
• “[T]he trial court initially determines whether a defendant’s conduct may
reasonably be regarded as so extreme and outrageous as to permit recovery.
Where reasonable men can differ, the jury determines whether the conduct has
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been extreme and outrageous to result in liability. Otherwise stated, the court
determines whether severe emotional distress can be found; the jury determines
whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1614 [146 Cal.Rptr.3d 585].)
• “ ‘[I]t is generally held that there can be no recovery for mere profanity,
obscenity, or abuse, without circumstances of aggravation, or for insults,
indignities or threats which are considered to amount to nothing more than mere
annoyances.’ ” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [257
Cal.Rptr. 665], internal citations omitted.)
• “Liability for IIED does not extend to ‘ “ ‘mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.’ ” ’ Malicious or evil purpose
is not essential to liability for IIED.” (Crouch v. Trinity Christian Center of
Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007 [253 Cal.Rptr.3d 1], internal
citations omitted.)
• “It is not enough that the conduct be intentional and outrageous. It must be
conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom
the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868,
903–904 [2 Cal.Rptr.2d 79, 820 P.2d 181].)
• “A requirement of a special relationship does not appear in the California
Supreme Court’s formulation of the elements of IIED. To recover for negligent
infliction of emotional distress, a plaintiff must prove a special relationship with
the defendant but [the plaintiff] sought recovery for intentional infliction, for
which proof of a special relationship is not required.” (Crouch, supra, 39
Cal.App.5th at pp. 1009–1010.)
• “Severe emotional distress [is] emotional distress of such substantial quantity or
enduring quality that no reasonable man in a civilized society should be
expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10
Cal.App.3d 376, 397 [89 Cal.Rptr. 78].)
• “ ‘The law limits claims of intentional infliction of emotional distress to
egregious conduct toward plaintiff proximately caused by defendant.’ The only
exception to this rule is that recognized when the defendant is aware, but acts
with reckless disregard of, the plaintiff and the probability that his or her
conduct will cause severe emotional distress to that plaintiff. Where reckless
disregard of the plaintiff’s interests is the theory of recovery, the presence of the
plaintiff at the time the outrageous conduct occurs is recognized as the element
establishing a higher degree of culpability which, in turn, justifies recovery of
greater damages by a broader group of plaintiffs than allowed on a negligent
infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at pp.
905–906, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 525–528
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-E, Intentional
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Infliction Of Emotional Distress, ¶ 11:61 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§ 44.01 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.20 et seq. (Matthew Bender)
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1601. Intentional Infliction of Emotional Distress—Fear of Cancer,
HIV, or AIDS
[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/
her/nonbinary pronoun] to suffer severe emotional distress by exposing
[name of plaintiff] to [insert applicable carcinogen, toxic substance, HIV, or
AIDS]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant]’s conduct was outrageous;
2. That [name of defendant]’s conduct exposed [name of plaintiff] to
[insert applicable carcinogen, toxic substance, HIV, or AIDS];
3. [That [name of defendant] intended to cause [name of plaintiff]
emotional distress;] [or]
3. [That [name of defendant] acted with reckless disregard of the
probability that [[name of plaintiff]/the group of individuals
including [name of plaintiff]] would suffer emotional distress,
knowing that [he/she/nonbinary pronoun/they] [was/were] present
when the conduct occurred;]
4. That [name of plaintiff] suffered severe emotional distress from a
reasonable fear of developing [insert applicable cancer, HIV, or
AIDS]; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s severe emotional distress.
A fear of developing [insert applicable cancer, HIV, or AIDS] is
“reasonable” if the fear stems from the knowledge, confirmed by reliable
medical or scientific opinion, that a person’s risk of [insert applicable
cancer, HIV, or AIDS] has significantly increased and that the resulting
risk is significant.
New September 2003
Directions for Use
CACI Nos. 1602–1604, regarding the elements of intentional infliction of emotional
distress, should be given with the above instruction. Depending on the facts of the
case, a plaintiff could choose one or both of the bracketed choices in element 3.
There may be other harmful agents and medical conditions that could support this
cause of action.
See CACI Nos. 1622 and 1623 for claims of negligent infliction of emotional
distress involving fear of cancer, HIV, or AIDS.
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Sources and Authority
• “The elements of the tort of intentional infliction of emotional distress are: ‘(1)
extreme and outrageous conduct by the defendant with the intention of causing,
or reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s outrageous
conduct.’ ” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [2
Cal.Rptr.2d 79, 820 P.2d 181], internal citation omitted; Potter v. Firestone Tire
and Rubber Co. (1993) 6 Cal.4th 965, 1001 [25 Cal.Rptr.2d 550, 863 P.2d 795].)
• “ ‘The law limits claims of intentional infliction of emotional distress to
egregious conduct toward plaintiff proximately caused by defendant.’ The only
exception to this rule is that recognized when the defendant is aware of, but acts
with reckless disregard of, the plaintiff and the probability that his or her
conduct will cause severe emotional distress to that plaintiff. Where reckless
disregard of the plaintiff’s interests is the theory of recovery, the presence of the
plaintiff at the time the outrageous conduct occurs is recognized as the element
establishing a higher degree of culpability which, in turn, justifies recovery of
greater damages by a broader group of plaintiffs than allowed on a negligent
infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at pp.
905–906, internal citations omitted.)
• “Severe emotional distress [is] emotional distress of such substantial quantity or
enduring quality that no reasonable [person] in a civilized society should be
expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10
Cal.App.3d 376, 397 [89 Cal.Rptr. 78]; Potter, supra, 6 Cal.4th at p. 1004.)
• “[I]t must . . . be established that plaintiff’s fear of cancer is reasonable, that is,
that the fear is based upon medically or scientifically corroborated knowledge
that the defendant’s conduct has significantly increased the plaintiff’s risk of
cancer and that the plaintiff’s actual risk of the threatened cancer is significant.”
(Potter, supra, 6 Cal.4th at p. 1004.)
• The court in Herbert v. Regents of University of California (1994) 26
Cal.App.4th 782, 787–788 [31 Cal.Rptr.2d 709] held that the rules relating to
recovery of damages for fear of cancer apply to fear of AIDS. See also Kerins v.
Hartley (1994) 27 Cal.App.4th 1062, 1075 [33 Cal.Rptr.2d 172].
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 539, 1174
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11[3][c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.38 (Matthew Bender)
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1602. Intentional Infliction of Emotional Distress—“Outrageous
Conduct” Defined
“Outrageous conduct” is conduct so extreme that it goes beyond all
possible bounds of decency. Conduct is outrageous if a reasonable person
would regard the conduct as intolerable in a civilized community.
Outrageous conduct does not include trivialities such as indignities,
annoyances, hurt feelings, or bad manners that a reasonable person is
expected to endure.
In deciding whether [name of defendant]’s conduct was outrageous, you
may consider, among other factors, the following:
(a) Whether [name of defendant] abused a position of authority or a
relationship that gave [him/her/nonbinary pronoun] real or
apparent power to affect [name of plaintiff]’s interests;
(b) Whether [name of defendant] knew that [name of plaintiff] was
particularly vulnerable to emotional distress; and
(c) Whether [name of defendant] knew that [his/her/nonbinary
pronoun] conduct would likely result in harm due to mental
distress.
New September 2003
Directions for Use
Read the appropriate factors that apply to the facts of the case. Factors that do not
apply may be deleted from this instruction.
Sources and Authority
• “Conduct to be outrageous must be so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” (Davidson v. City of Westminster
(1982) 32 Cal.3d 197, 209 [185 Cal.Rptr. 252, 649 P.2d 894].)
• “[W]hether conduct is outrageous is ‘usually a question of fact’ . . . . [However]
many cases have dismissed intentional infliction of emotional distress cases on
demurrer, concluding that the facts alleged do not amount to outrageous conduct
as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235 [170
Cal.Rptr.3d 293], internal citations omitted.)
• “[L]iability ‘does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities. . . . There is no occasion for the law to
intervene . . . where someone’s feelings are hurt.’ ” (Agarwal v. Johnson (1979)
25 Cal.3d 932, 946 [160 Cal.Rptr. 141, 603 P.2d 58], quoting Rest.2d Torts,
§ 46, com. d, overruled on other grounds in White v. Ultramar, Inc. (1999) 21
Cal.4th 563, 579–580 [88 Cal.Rptr.2d 19, 981 P.2d 944].)
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• “ ‘Behavior may be considered outrageous if a defendant (1) abuses a relation or
position that gives him power to damage the plaintiff’s interests; (2) knows the
plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally
or unreasonably with the recognition that the acts are likely to result in illness
through mental distress. . . .’ ” (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d
1092, 1122 [252 Cal.Rptr. 122, 762 P.2d 46], internal citation omitted.)
• Relationships that have been recognized as significantly contributing to the
conclusion that particular conduct was outrageous include: employer-employee
(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498, fn.2 [86 Cal.Rptr.
88, 468 P.2d 216]), insurer-insured (Fletcher v. Western National Life Insurance
Co. (1970) 10 Cal.App.3d 376, 403–404 [89 Cal.Rptr. 78]), landlord-tenant
(Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281–282 [97 Cal.Rptr. 650]),
hospital-patient (Bundren v. Superior Court (1983) 145 Cal.App.3d 784, 791–792
[193 Cal.Rptr. 671]), attorney-client (McDaniel v. Gile (1991) 230 Cal.App.3d
363, 373 [281 Cal.Rptr. 242]), collecting creditors (Bundren, supra, at p. 791, fn.
8), and religious institutions (Molko, supra, 46 Cal.3d at pp. 1122–1123).
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 525–528
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§§ 44.01, 44.03 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10[3][c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.20 (Matthew Bender)
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1603. Intentional Infliction of Emotional Distress—“Reckless
Disregard” Defined
[Name of defendant] acted with reckless disregard in causing [name of
plaintiff] emotional distress if:
1. [Name of defendant] knew that emotional distress would probably
result from [his/her/nonbinary pronoun] conduct; or
2. [Name of defendant] gave little or no thought to the probable
effects of [his/her/nonbinary pronoun] conduct.
New September 2003
Sources and Authority
• “[I]t is not essential to liability that a trier of fact find a malicious or evil
purpose. It is enough that defendant ‘devoted little or no thought’ to probable
consequences of his conduct.” (KOVR-TV, Inc. v. Superior Court (1995) 31
Cal.App.4th 1023, 1031–1032 [37 Cal.Rptr.2d 431], internal citation omitted.)
• The requirement of reckless conduct is satisfied by a showing that the defendant
acted in reckless disregard of the probability that the plaintiff would suffer
emotional distress. (Little v. Stuyvesant Life Insurance Co. (1977) 67 Cal.App.3d
451, 462 [136 Cal.Rptr. 653]; Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d
579, 593 [156 Cal.Rptr. 198, 595 P.2d 975].)
• “Where reckless disregard of the plaintiff’s interests is the theory of recovery, the
presence of the plaintiff at the time the outrageous conduct occurs is recognized
as the element establishing a higher degree of culpability which, in turn, justifies
recovery of greater damages by a broader group of plaintiffs than allowed on a
negligent infliction of emotional distress theory.” (Christensen v. Superior Court
(1991) 54 Cal.3d 868, 905 [2 Cal.Rptr.2d 79, 820 P.2d 181].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 525, 527
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§ 44.01 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10[4] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.21 (Matthew Bender)
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1604. Intentional Infliction of Emotional Distress—“Severe
Emotional Distress” Defined
Emotional distress includes suffering, anguish, fright, horror,
nervousness, grief, anxiety, worry, shock, humiliation, and shame.
“Severe emotional distress” is not mild or brief; it must be so substantial
or long lasting that no reasonable person in a civilized society should be
expected to bear it. [Name of plaintiff] is not required to prove physical
injury to recover damages for severe emotional distress.
New September 2003
Sources and Authority
• “ ‘It is for the court to determine whether on the evidence severe emotional
distress can be found; it is for the jury to determine whether, on the evidence, it
has in fact existed.’ ” (Fletcher v. Western National Life Insurance Co. (1970) 10
Cal.App.3d 376, 397 [89 Cal.Rptr. 78], internal citation omitted.)
• “Emotional distress” includes any “highly unpleasant mental reactions, such as
fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, or worry.” (Fletcher, supra, 10 Cal.App.3d at p. 397.)
• “With respect to the requirement that the plaintiff show severe emotional
distress, this court has set a high bar. ‘Severe emotional distress means
“emotional distress of such substantial quality or enduring quality that no
reasonable [person] in civilized society should be expected to endure it.” ’ ”
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 [95 Cal.Rptr.3d 636, 209 P.3d
963].)
• “ ‘One who has wrongfully and intentionally [suffered severe emotional distress]
may recover compensatory damages even though he or she has suffered no
physical injury,’ and ‘the right to compensation exists even though no monetary
loss has been sustained.’ ” (Grimes v. Carter (1966) 241 Cal.App.2d 694, 699
[50 Cal.Rptr. 808].)
Secondary Sources
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§ 44.01 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.26 (Matthew Bender)
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1605. Intentional Infliction of Emotional Distress—Affirmative
Defense—Privileged Conduct
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for [name of plaintiff]’s harm, if any, because [name of
defendant]’s conduct was permissible. To succeed, [name of defendant]
must prove all of the following:
1. That [name of defendant] was [exercising [his/her/nonbinary
pronoun] legal right to [insert legal right]] [or] [protecting [his/her/
nonbinary pronoun] economic interests];
2. That [name of defendant]’s conduct was lawful and consistent with
community standards; and
3. That [name of defendant] had a good-faith belief that
[he/she/nonbinary pronoun] had a legal right to engage in the
conduct.
If you find all of the above, then [name of defendant]’s conduct was
permissible.
New September 2003
Directions for Use
Whether a given communication is within the privileges afforded by Civil Code
section 47 is a legal question for the judge.
Sources and Authority
• “Whether treated as an element of the prima facie case or as a matter of defense,
it must also appear that the defendants’ conduct was unprivileged.” (Fletcher v.
Western National Life Insurance Co. (1970) 10 Cal.App.3d 376, 394 [89
Cal.Rptr. 78].)
• The statutory privileges that Civil Code section 47 affords to certain oral and
written communications are applicable to claims for intentional infliction of
emotional distress. (Agostini v. Strycula (1965) 231 Cal.App.2d 804, 808 [42
Cal.Rptr. 314].)
• “The usual formulation is that the [litigation] privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical relation to the action.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786 P.2d
365].)
• “Where an employer seeks to protect his own self-interest and that of his
employees in good faith and without abusing the privilege afforded him, the
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privilege obtains even though it is substantially certain that emotional distress
will result from uttered statements.” (Deaile v. General Telephone Co. of
California (1974) 40 Cal.App.3d 841, 849–850 [115 Cal.Rptr. 582].)
• “Nevertheless, the exercise of the privilege to assert one’s legal rights must be
done in a permissible way and with a good faith belief in the existence of the
rights asserted. It is well established that one who, in exercising the privilege of
asserting his own economic interests, acts in an outrageous manner may be held
liable for intentional infliction of emotional distress.” (Fletcher, supra, 10
Cal.App.3d at p. 395, internal citations omitted.)
• “While it is recognized that the creditor possesses a qualified privilege to protect
its economic interest, the privilege may be lost should the creditor use
outrageous and unreasonable means in seeking payment.” (Bundren v. Superior
Court (1983) 145 Cal.App.3d 784, 789 [193 Cal.Rptr. 671].)
• “In determining whether the conduct is sufficiently outrageous or unreasonable to
become actionable, it is not enough that the creditor’s behavior is rude or
insolent. However, such conduct may rise to the level of outrageous conduct
where the creditor knows the debtor is susceptible to emotional distress because
of her physical or mental condition.” (Symonds v. Mercury Savings & Loan Assn.
(1990) 225 Cal.App.3d 1458, 1469 [275 Cal.Rptr. 871], internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 529, 530
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§ 44.06 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10[8] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.27 (Matthew Bender)
1606–1619. Reserved for Future Use
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1620. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Direct Victim—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/
her/nonbinary pronoun] to suffer serious emotional distress. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was negligent;
2. That [name of plaintiff] suffered serious emotional distress; and
3. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s serious emotional distress.
Emotional distress includes suffering, anguish, fright, horror,
nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Serious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.
New September 2003; Revised June 2014, December 2014
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. The doctrine of “negligent infliction of emotional distress” is not
a separate tort or cause of action. It simply allows certain persons to recover
damages for emotional distress only on a negligence cause of action even though
they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation
Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
A “direct victim” case is one in which the plaintiff’s claim of emotional distress is
based on the violation of a duty that the defendant owes directly to the plaintiff.
(Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205 [147
Cal.Rptr.3d 41].) The California Supreme Court has allowed plaintiffs to recover
damages as “direct victims” in only three types of factual situations: (1) the
negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d
868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]); (2) the negligent misdiagnosis of a
disease that could potentially harm another (Molien, supra, 27 Cal.3d at p. 923); and
(3) the negligent breach of a duty arising out of a preexisting relationship (Burgess
v. Superior Court (1992) 2 Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831 P.2d 1197]).
The judge will normally decide whether a duty was owed to the plaintiff as a direct
victim. If the issue of whether the plaintiff is a direct victim is contested, a special
instruction with the factual dispute laid out for the jury will need to be drafted.
This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
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If the plaintiff witnesses the injury of another, use CACI No. 1621,
Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander—Essential Factual Elements. For instructions for use for
emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI
No. 1622, Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, and CACI No.
1623, Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent
Conduct—Essential Factual Elements.
Elements 1 and 3 of this instruction could be modified for use in a strict products
liability case. A plaintiff may seek damages for the emotional shock of viewing the
injuries of another when the incident is caused by defendant’s defective product.
(Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 587 [195 Cal.Rptr. 902].)
The explanation in the last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d at
p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional
distress from negligence without other injury is the same as “severe” emotional
distress for the tort of intentional infliction of emotional distress. (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
• “ ‘[The] negligent causing of emotional distress is not an independent tort but
the tort of negligence . . . .’ ‘The traditional elements of duty, breach of duty,
causation, and damages apply. Whether a defendant owes a duty of care is a
question of law. Its existence depends upon the foreseeability of the risk and
upon a weighing of policy considerations for and against imposition of
liability.’ ” (Marlene F. v. Affıliated Psychiatric Medical Clinic, Inc. (1989) 48
Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278], internal citations omitted.)
• “ ‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional
distress is not based upon witnessing an injury to someone else, but rather is
based upon the violation of a duty owed directly to the plaintiff.” (Ragland,
supra, 209 Cal.App.4th at p. 205.)
• “[D]uty is found where the plaintiff is a ‘direct victim,’ in that the emotional
distress damages result from a duty owed the plaintiff ‘that is “assumed by the
defendant or imposed on the defendant as a matter of law, or that arises out of a
relationship between the two.” ’ ” (McMahon v. Craig (2009) 176 Cal.App.4th
1502, 1510 [97 Cal.Rptr.3d 555].)
• “We agree that the unqualified requirement of physical injury is no longer
justifiable.” (Molien, supra, 27 Cal.3d at p. 928.)
• “[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.” (Molien, supra, 27 Cal.3d at pp.
927–928.)
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• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for intentional
infliction of emotional distress]. Indeed, given the meaning of both phrases, we
can perceive no material distinction between them and can conceive of no reason
why either would, or should, describe a greater or lesser degree of emotional
distress than the other for purposes of establishing a tort claim seeking damages
for such an injury.” (Wong, supra, 189 Cal.App.4th at p. 1378.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1138 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:899 et seq. (The Rutter Group)
1 California Torts, Ch. 5, Negligent Infliction of Emotional Distress, § 5.03
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.31 et seq. (Matthew Bender)
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1621. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Bystander—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] suffered serious
emotional distress as a result of perceiving [an injury to/the death of]
[name of victim]. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of defendant] negligently caused [injury to/the death
of] [name of victim];
2. That when the [describe event, e.g., traffıc accident] that caused
[injury to/the death of] [name of victim] occurred, [name of
plaintiff] was present at the scene;
3. That [name of plaintiff] was then aware that the [e.g., traffıc
accident] was causing [injury to/the death of] [name of victim];
4. That [name of plaintiff] suffered serious emotional distress; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s serious emotional distress.
[Name of plaintiff] need not have been then aware that [name of
defendant] had caused the [e.g., traffıc accident].
Emotional distress includes suffering, anguish, fright, horror,
nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Serious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.
New September 2003; Revised December 2013, June 2014, December 2014,
December 2015
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. The doctrine of “negligent infliction of emotional distress” is not
a separate tort or cause of action. It simply allows certain persons to recover
damages for emotional distress only on a negligence cause of action even though
they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation
Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
A “bystander” case is one in which a plaintiff seeks recovery for damages for
emotional distress suffered as a percipient witness of an injury to another person. If
the plaintiff is a direct victim of tortious conduct, use CACI No. 1620,
Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim—Essential Factual Elements. For instructions for use for
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emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI
No. 1622, Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, and CACI No.
1623, Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent
Conduct—Essential Factual Elements.
This instruction should be read in conjunction with instructions in the Negligence
series (see CACI No. 400 et seq.) to further develop element 1.
Whether the plaintiff had a sufficiently close relationship with the victim should be
determined as an issue of law because it is integral to the determination of whether
a duty was owed to the plaintiff.
There is some uncertainty as to how the “event” should be defined in element 2 and
then just exactly what the plaintiff must perceive in element 3. When the event is
something dramatic and visible, such as a traffic accident or a fire, it would seem
that the plaintiff need not know anything about why the event occurred. (See Wilks
v. Hom (1992) 2 Cal.App.4th 1264, 1271 [3 Cal.Rptr.2d 803].) And the California
Supreme Court has stated that the bystander plaintiff need not contemporaneously
understand the defendant’s conduct as negligent, as opposed to harmful. (Bird v.
Saenz (2002) 28 Cal.4th 910, 920 [123 Cal.Rptr.2d 465, 51 P.3d 324], original
italics.)
But what constitutes perception of the event is less clear when the victim is clearly
in observable distress, but the cause of that distress may not be observable. It has
been held that the manufacture of a defective product is the event, which is not
observable, despite the fact that the result was observable distress resulting in death.
(See Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830,
843–844 [151 Cal.Rptr.3d 320].) In another observable-distress case, medical
negligence that led to distress resulting in death was found to be perceivable
because the relatives who were present observed the decedent’s acute respiratory
distress and were aware that defendant’s inadequate response caused her death. (See
Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 489–490
[185 Cal.Rptr.3d 313], emphasis added.) It might be argued that observable distress
is the event and that the bystanders need not perceive anything about the cause of
the distress. However, these cases indicate that is not the standard. But if it is not
necessary to comprehend that negligence is causing the distress, it is not clear what
it is that the bystander must perceive in element 3. Because of this uncertainty, the
Advisory Committee has elected not to try to express element 3 any more
specifically.
The explanation in the last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d at
p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional
distress from negligence without other injury is the same as “severe” emotional
distress for the tort of intentional infliction of emotional distress. (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747]; but see Keys, supra, 235
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Cal.App.4th at p. 491 [finding last sentence of this instruction to be a correct
description of the distress required].)
Sources and Authority
• “California’s rule that plaintiff’s fear for his own safety is compensable also
presents a strong argument for the same rule as to fear for others; otherwise,
some plaintiffs will falsely claim to have feared for themselves, and the honest
parties unwilling to do so will be penalized. Moreover, it is incongruous and
somewhat revolting to sanction recovery for the mother if she suffers shock from
fear for her own safety and to deny it for shock from the witnessed death of her
own daughter.” (Dillon v. Legg (1968) 68 Cal.2d 728, 738, fn. 4 [69 Cal.Rptr.
72, 441 P.2d 912].)
• “As an introductory note, we observe that plaintiffs . . . framed both negligence
and negligent infliction of emotional distress causes of action. To be precise,
however, ‘the [only] tort with which we are concerned is negligence. Negligent
infliction of emotional distress is not an independent tort . . . .’ ” (Catsouras v.
Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 875–876
[104 Cal.Rptr.3d 352].)
• “In the absence of physical injury or impact to the plaintiff himself, damages for
emotional distress should be recoverable only if the plaintiff: (1) is closely
related to the injury victim, (2) is present at the scene of the injury-producing
event at the time it occurs and is then aware that it is causing injury to the
victim and, (3) as a result suffers emotional distress beyond that which would be
anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644,
647 [257 Cal.Rptr. 865, 771 P.2d 814].)
• “[T]o satisfy the second Thing requirement the plaintiff must experience a
contemporaneous sensory awareness of the causal connection between the
defendant’s infliction of harm and the injuries suffered by the close relative.”
(Fortman, supra, 212 Cal.App.4th at p. 836.)
• “Where plaintiffs allege they were virtually present at the scene of an injury-
producing event sufficient for them to have a contemporaneous sensory
awareness of the event causing injury to their loved one, they satisfy the second
Thing requirement to state a cause of action for NIED. Just as the Supreme
Court has ruled a ‘plaintiff may recover based on an event perceived by other
senses so long as the event is contemporaneously understood as causing injury to
a close relative’, so too can the [plaintiffs] pursue an NIED claim where, as
alleged, they contemporaneously saw and heard [their child’s] abuse, but with
their senses technologically extended beyond the walls of their home.” (Ko v.
Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1159 [272
Cal.Rptr.3d 906], internal citation omitted.)
• “[A] plaintiff need not contemporaneously understand the defendant’s conduct as
negligent, as opposed to harmful. But the court confused awareness of
negligence, a legal conclusion, with contemporaneous, understanding awareness
of the event as causing harm to the victim.” (Bird, supra, 28 Cal.4th at p. 920.)
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• “Bird does not categorically bar plaintiffs who witness acts of medical
negligence from pursuing NIED claims. ‘This is not to say that a layperson can
never perceive medical negligence or that one who does perceive it cannot assert
a valid claim for NIED.’ Particularly, a NIED claim may arise when . . .
caregivers fail ‘to respond significantly to symptoms obviously requiring
immediate medical attention.’ ” (Keys, supra, 235 Cal.App.4th at p. 489.)
• “The injury-producing event here was defendant’s lack of acuity and response to
[decedent]’s inability to breathe, a condition the plaintiffs observed and were
aware was causing her injury.” (Keys, supra, 235 Cal.App.4th at p. 490.)
• “Thing does not require that the plaintiff have an awareness of what caused the
injury-producing event, but the plaintiff must have an understanding perception
of the ‘event as causing harm to the victim.’ ” (Fortman, supra, 212 Cal.App.4th
at p. 841, fn. 4.)
• “[W]e also reject [plaintiff]’s attempt to expand bystander recovery to hold a
product manufacturer strictly liable for emotional distress when the plaintiff
observes injuries sustained by a close relative arising from an unobservable
product failure. To do so would eviscerate the second Thing requirement.”
(Fortman, supra, 212 Cal.App.4th at pp. 843–844.)
• “Absent exceptional circumstances, recovery should be limited to relatives
residing in the same household, or parents, siblings, children, and grandparents
of the victim.” (Thing, supra, 48 Cal.3d at p. 668, fn. 10.)
• “[A]n unmarried cohabitant may not recover damages for emotional distress
based on such injury.” (Elden v. Sheldon (1988) 46 Cal.3d 267, 273 [250
Cal.Rptr. 254, 758 P.2d 582].)
• “Although a plaintiff may establish presence at the scene through nonvisual
sensory perception, ‘someone who hears an accident but does not then know it is
causing injury to a relative does not have a viable [bystander] claim for
[negligent infliction of emotional distress], even if the missing knowledge is
acquired moments later.’ ” (Ra v. Superior Court (2007) 154 Cal.App.4th 142,
149 [64 Cal.Rptr.3d 539], internal citation omitted.)
• “[I]t is not necessary that a plaintiff bystander actually have witnessed the
infliction of injury to her child, provided that the plaintiff was at the scene of the
accident and was sensorially aware, in some important way, of the accident and
the necessarily inflicted injury to her child.” (Wilks, supra, 2 Cal.App.4th at p.
1271.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for intentional
infliction of emotional distress]. Indeed, given the meaning of both phrases, we
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can perceive no material distinction between them and can conceive of no reason
why either would, or should, describe a greater or lesser degree of emotional
distress than the other for purposes of establishing a tort claim seeking damages
for such an injury.” (Wong, supra, 189 Cal.App.4th at p. 1378.)
• “We have no reason to question the jury’s conclusion that [plaintiffs] suffered
serious emotional distress as a result of watching [decedent]’s struggle to breathe
that led to her death. The jury was properly instructed, as explained in Thing,
that ‘[s]erious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.’ The instructions clarify that ‘Emotional distress
includes suffering, anguish, fright, . . . nervousness, grief, anxiety, worry, shock
. . . .’ Viewed through this lens there is no question that [plaintiffs’] testimony
provides sufficient proof of serious emotional distress.” (Keys, supra, 235
Cal.App.4th at p. 491, internal citation omitted.)
• “[W]here a participant in a sport has expressly assumed the risk of injury from a
defendant’s conduct, the defendant no longer owes a duty of care to bystanders
with respect to the risk expressly assumed by the participant. The defendant can
therefore assert the participant’s express assumption of the risk against the
bystanders’ NIED claims.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708,
731 [183 Cal.Rptr.3d 234].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1144–1158
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-F, Negligent
Infliction Of Emotional Distress, ¶ 11:101 (The Rutter Group)
1 Levy et al., California Torts, Ch. 5, Negligent Infliction of Emotional Distress,
§ 5.04 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, §§ 153.31 et seq., 153.45 et seq. (Matthew Bender)
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1622. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant]’s conduct caused [him/
her/nonbinary pronoun] to suffer serious emotional distress by exposing
[name of plaintiff] to [insert applicable carcinogen, toxic substance, HIV, or
AIDS]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] was exposed to [insert applicable
carcinogen, toxic substance, HIV, or AIDS] as a result of [name of
defendant]’s negligence;
2. That [name of plaintiff] suffered serious emotional distress from a
fear that [he/she/nonbinary pronoun] will develop [insert applicable
cancer, HIV, or AIDS] as a result of the exposure;
3. That reliable medical or scientific opinion confirms that it is more
likely than not that [name of plaintiff] will develop [insert
applicable cancer, HIV, or AIDS] as a result of the exposure; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s serious emotional distress.
Emotional distress includes suffering, anguish, fright, horror,
nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Serious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.
New September 2003; Revised June 2014, December 2014
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. The doctrine of “negligent infliction of emotional distress” is not
a separate tort or cause of action. It simply allows certain persons to recover
damages for emotional distress only on a negligence cause of action even though
they were not otherwise currently injured or harmed. (See Molien v. Kaiser
Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
Recovery for emotional distress without other current harm or injury is allowed for
negligent exposure to a disease-causing substance, but only if the plaintiff can
establish that it is more likely than not that the plaintiff will contract the disease.
(See Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 997 [25
Cal.Rptr.2d 550, 863 P.2d 795.) There may be other harmful agents and medical
conditions that could support this claim for damages.
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This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
If plaintiff alleges that defendant’s conduct constituted oppression, fraud, or malice,
then CACI No. 1623, Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Malicious,
Oppressive, or Fraudulent Conduct—Essential Factual Elements, should be read.
The explanation in the last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d at
p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional
distress from negligence without other injury is the same as “severe” emotional
distress for the tort of intentional infliction of emotional distress. (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
• “ ‘[D]amages for negligently inflicted emotional distress may be recovered in the
absence of physical injury or impact . . . .’ ” (Potter, supra, 6 Cal.4th at p. 986,
internal citation omitted.)
• “[T]he way to avoid damage awards for unreasonable fear, i.e., in those cases
where the feared cancer is at best only remotely possible, is to require a showing
of the actual likelihood of the feared cancer to establish its significance.” (Potter,
supra, 6 Cal.4th at p. 990.)
• “[D]amages for fear of cancer may be recovered only if the plaintiff pleads and
proves that (1) as a result of the defendant’s negligent breach of a duty owed to
the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;
and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable
medical or scientific opinion, that it is more likely than not that the plaintiff will
develop the cancer in the future due to the toxic exposure.” (Potter, supra, 6
Cal.4th at p. 997.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for intentional
infliction of emotional distress]. Indeed, given the meaning of both phrases, we
can perceive no material distinction between them and can conceive of no reason
why either would, or should, describe a greater or lesser degree of emotional
distress than the other for purposes of establishing a tort claim seeking damages
for such an injury.” (Wong, supra, 189 Cal.App.4th at p. 1378.)
• “[W]e hold that the cost of medical monitoring is a compensable item of
damages where the proofs demonstrate, through reliable medical expert
testimony, that the need for future monitoring is a reasonably certain
consequence of a plaintiff’s toxic exposure and that the recommended monitoring
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is reasonable.” (Potter, supra, 6 Cal.4th at p. 1009.)
• “All of the policy concerns expressed in Potter apply with equal force in the
fear of AIDS context.” (Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1074 [33
Cal.Rptr.2d 172].)
• “[Plaintiff parent] claims the likelihood of actual injury to [child] is immaterial
and that, in short, the rule announced in Potter regarding fear of cancer should
not be applied to a case involving fear of AIDS. We disagree.” (Herbert v.
Regents of University of California (1994) 26 Cal.App.4th 782, 786 [31
Cal.Rptr.2d 709].)
• “[W]hen a defendant demonstrates that a plaintiff’s smoking is negligent and that
a portion of the plaintiff’s fear of developing cancer is attributable to the
smoking, comparative fault principles may be applied in determining the extent
to which the plaintiff’s emotional distress damages for such fear should be
reduced to reflect the proportion of such damages for which the plaintiff should
properly bear the responsibility.” (Potter, supra, 6 Cal.4th at pp. 965, 1011.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1174
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:218.6 (The Rutter Group)
1 Levy et al., California Torts, Ch. 5, Negligent Infliction of Emotional Distress,
§ 5.02 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11[3][c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.38 (Matthew Bender)
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1623. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] acted with
[malice/oppression/fraudulent intent] in exposing [name of plaintiff] to
[insert applicable carcinogen, toxic substance, HIV, or AIDS] and that this
conduct caused [name of plaintiff] to suffer serious emotional distress. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was exposed to [insert applicable
carcinogen, toxic substance, HIV, or AIDS] as a result of [name of
defendant]’s negligent conduct;
2. That [name of defendant] acted with [malice/oppression/fraudulent
intent] because [insert one or more of the following, as applicable]:
2. [[Name of defendant] intended to cause injury to [name of
plaintiff];] [or]
2. [[Name of defendant]’s conduct was despicable and was carried
out with a willful or conscious disregard of [name of plaintiff]’s
rights or safety;] [or]
2. [[Name of defendant]’s conduct was despicable and subjected
[name of plaintiff] to cruel and unjust hardship in conscious
disregard of [name of plaintiff]’s rights;] [or]
2. [[Name of defendant] intentionally misrepresented or concealed a
material fact known to [name of defendant], intending to cause
[name of plaintiff] harm;]
3. That [name of plaintiff] suffered serious emotional distress from a
fear that [he/she/nonbinary pronoun] will develop [insert applicable
cancer, HIV, or AIDS] as a result of the exposure;
4. That reliable medical or scientific opinion confirms that [name of
plaintiff]’s risk of developing [insert applicable cancer, HIV, or
AIDS] was significantly increased by the exposure and has
resulted in an actual risk that is significant; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s serious emotional distress.
Emotional distress includes suffering, anguish, fright, horror,
nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Serious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.
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“Despicable conduct” is conduct that is so mean, vile, base, or
contemptible that it would be looked down on and despised by
reasonable people.
New September 2003; Revised June 2014, December 2014
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. There is no separate tort or cause of action for “negligent
infliction of emotional distress.” The doctrine is one that allows certain persons to
recover damages for emotional distress only on a negligence cause of action even
though they were not otherwise currently injured or harmed. (See Molien v. Kaiser
Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
Recovery for emotional distress without other current harm or injury is allowed for
negligent exposure to a disease-causing substance. If the plaintiff can prove
oppression, fraud, or malice, it is not necessary to establish that it is more likely
than not that the plaintiff will contract the disease. (See Potter v. Firestone Tire and
Rubber Co. (1993) 6 Cal.4th 965, 998 [25 Cal.Rptr.2d 550, 863 P.2d 795.) Use
CACI No. 1622, Negligence—Recovery of Damages for Emotional Distress—No
Physical Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, if
plaintiff alleges exposure without oppression, fraud, or malice.
This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
“Oppression, fraud, or malice” is used here as defined by Civil Code section 3294,
except that the higher “clear and convincing” burden of proof is not required in this
context. (See Potter, supra, 6 Cal.4th at p. 1000.)
In some cases the judge should make clear that the defendant does not need to have
known of the individual plaintiff where there is a broad exposure and plaintiff is a
member of the class that was exposed.
The explanation in the next-to-last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d at
p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional
distress from negligence without other injury is the same as “severe” emotional
distress for the tort of intentional infliction of emotional distress. (Wong v. Jing
(2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
• Punitive Damages: Malice, Oppression, and Fraud Defined. Civil Code section
3294(c).
• “ ‘[D]amages for negligently inflicted emotional distress may be recovered in the
absence of physical injury or impact . . . .’ ” (Potter, supra, 6 Cal.4th at p. 986.)
• “[A] toxic exposure plaintiff need not meet the more likely than not threshold
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for fear of cancer recovery in a negligence action if the plaintiff pleads and
proves that the defendant’s conduct in causing the exposure amounts to
‘oppression, fraud, or malice’ as defined in Civil Code section 3294.” (Potter,
supra, 6 Cal.4th at p. 998.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
• “[D]amages for fear of cancer may be recovered only if the plaintiff pleads and
proves that (1) as a result of the defendant’s negligent breach of a duty owed to
the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;
and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable
medical or scientific opinion, that it is more likely than not that the plaintiff will
develop the cancer in the future due to the toxic exposure.” (Potter, supra, 6
Cal.4th at p. 997.)
• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for intentional
infliction of emotional distress]. Indeed, given the meaning of both phrases, we
can perceive no material distinction between them and can conceive of no reason
why either would, or should, describe a greater or lesser degree of emotional
distress than the other for purposes of establishing a tort claim seeking damages
for such an injury.” (Wong, supra, 189 Cal.App.4th at p. 1378.)
• “All of the policy concerns expressed in Potter apply with equal force in the
fear of AIDS context.” (Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1074 [33
Cal.Rptr.2d 172].)
• “[Plaintiff parent] claims the likelihood of actual injury to [child] is immaterial
and that, in short, the rule announced in Potter regarding fear of cancer should
not be applied to a case involving fear of AIDS. We disagree.” (Herbert v.
Regents of University of California (1994) 26 Cal.App.4th 782, 786 [31
Cal.Rptr.2d 709].)
• “Despicable conduct is conduct which is so vile, base, contemptible, miserable,
wretched or loathsome that it would be looked down upon and despised by
ordinary decent people.” (Mock v. Mich. Millers Mut. Ins. Co. (1992) 4
Cal.App.4th 306, 331 [5 Cal.Rptr.2d 594].)
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ ” (College
Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34 Cal.Rptr.2d 898,
882 P.2d 894].)
• “Civil Code section 3294 requires a plaintiff to prove oppression, fraud, or
malice by ‘clear and convincing evidence’ for purposes of punitive damages
recovery. We decline to impose this stringent burden of proof for recovery of
fear of cancer damages in negligence cases for two reasons. First, we have
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already adopted strict limitations on the availability of damages for negligently
inflicted fear of cancer; an additional hurdle at this point is unnecessary for
public policy purposes. Second, to recover compensatory damages in an action
for intentional infliction of emotional distress, a plaintiff need only prove the fact
that a defendant intentionally inflicted such distress by a preponderance of the
evidence. It is therefore both logical and consistent to utilize the same burden of
proof for recovery of compensatory damages when a defendant has acted with
‘oppression, fraud or malice’ to negligently inflict emotional distress.” (Potter,
supra, 6 Cal.4th at p. 1000, fn. 20.)
• “[W]hen a defendant demonstrates that a plaintiff’s smoking is negligent and that
a portion of the plaintiff’s fear of developing cancer is attributable to the
smoking, comparative fault principles may be applied in determining the extent
to which the plaintiff’s emotional distress damages for such fear should be
reduced to reflect the proportion of such damages for which the plaintiff should
properly bear the responsibility.” (Potter, supra, 6 Cal.4th at p. 1011.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1174
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶¶ 3:881–3:883 (The Rutter Group)
1 Levy et al., California Torts, Ch. 5, Negligent Infliction of Emotional Distress,
§ 5.02 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11[3][c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.38 (Matthew Bender)
1624–1699. Reserved for Future Use
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VF-1600. Intentional Infliction of Emotional Distress
We answer the questions submitted to us as follows:
1. Was [name of defendant]’s conduct outrageous?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] intend to cause [name of plaintiff]
emotional distress?] [or]
2. [Did [name of defendant] act with reckless disregard of the
probability that [name of plaintiff] would suffer emotional distress,
knowing that [name of plaintiff] was present when the conduct
occurred?]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] suffer severe emotional distress?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s severe emotional distress?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
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EMOTIONAL DISTRESS VF-1600
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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VF-1600 EMOTIONAL DISTRESS
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1601. Intentional Infliction of Emotional Distress—Affirmative
Defense—Privileged Conduct
We answer the questions submitted to us as follows:
1. Was [name of defendant] exercising [his/her/nonbinary pronoun]
legal rights or protecting [his/her/nonbinary pronoun] economic
interests?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, skip questions 2 and 3 and answer question 4.
2. Was [name of defendant]’s conduct lawful and consistent with
community standards?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, skip question 3 and answer question 4.
3. Did [name of defendant] have a good-faith belief that
[he/she/nonbinary pronoun] had a legal right to engage in the
conduct?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct outrageous?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. [Did [name of defendant] intend to cause [name of plaintiff]
emotional distress?]
5. [or]
5. [Did [name of defendant] act with reckless disregard of the
probability that [name of plaintiff] would suffer emotional distress,
knowing that [name of plaintiff] was present when the conduct
occurred?]
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
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VF-1601 EMOTIONAL DISTRESS
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of plaintiff] suffer severe emotional distress?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s severe emotional distress?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. [Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. [Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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EMOTIONAL DISTRESS VF-1601
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements, and CACI No. 1605, Intentional Infliction of
Emotional Distress—Affırmative Defense-Privileged Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
993
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VF-1602. Intentional Infliction of Emotional Distress—Fear of
Cancer, HIV, or AIDS
We answer the questions submitted to us as follows:
1. Was [name of defendant]’s conduct outrageous?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant]’s conduct expose [name of plaintiff] to
[insert applicable carcinogen, toxic substance, HIV, or AIDS]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. [Did [name of defendant] intend to cause [name of plaintiff]
emotional distress?] [or]
3. [Did [name of defendant] act with reckless disregard of the
probability that [[name of plaintiff]/the group of individuals
including [name of plaintiff]] would suffer emotional distress,
knowing that [he/she/nonbinary pronoun/they] [was/were] present
when the conduct occurred?]
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] suffer severe emotional distress from a
reasonable fear of developing [insert cancer, HIV, or AIDS]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s severe emotional distress?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
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EMOTIONAL DISTRESS VF-1602
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1601, Intentional Infliction of Emotional
Distress—Fear of Cancer, HIV, or AIDS.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
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If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
996
Copyright Judicial Council of California
VF-1603. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Direct Victim
We answer the questions submitted to us as follows:
1. Was [name of defendant] negligent?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] suffer serious emotional distress?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s negligence a substantial factor in
causing [name of plaintiff]’s serious emotional distress?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
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[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1620, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Direct Victim—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
998
Copyright Judicial Council of California
VF-1604. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Bystander
We answer the questions submitted to us as follows:
1. Did [name of defendant] negligently cause [injury to/the death of]
[name of victim]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. When the [describe event, e.g., traffıc accident] that caused [injury
to/the death of] [name of victim] occurred, was [name of plaintiff]
present at the scene?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff] then aware that the [e.g., traffıc accident]
was causing [injury to/the death of] [name of victim]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] suffer serious emotional distress?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s serious emotional distress?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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VF-1604 EMOTIONAL DISTRESS
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1621, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Bystander—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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EMOTIONAL DISTRESS VF-1604
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1001
Copyright Judicial Council of California
VF-1605. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] exposed to [insert applicable carcinogen,
toxic substance, HIV, or AIDS] as a result of [name of defendant]’s
negligence?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] suffer serious emotional distress from a fear
that [he/she/nonbinary pronoun] would develop [insert applicable
cancer, HIV, or AIDS] as a result of the exposure?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Does reliable medical or scientific opinion confirm that it is more
likely than not that [name of plaintiff] will develop [insert
applicable cancer, HIV, or AIDS] as a result of the exposure?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s negligence a substantial factor in
causing [name of plaintiff]’s serious emotional distress?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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EMOTIONAL DISTRESS VF-1605
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1622, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
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VF-1605 EMOTIONAL DISTRESS
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1004
Copyright Judicial Council of California
VF-1606. Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Malicious, Oppressive, or Fraudulent Conduct
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] exposed to [insert applicable carcinogen,
toxic substance, HIV, or AIDS] as a result of [name of defendant]’s
conduct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] act with [malice/oppression/fraudulent
intent] because [insert one or more of the following, as applicable:]
2. [[name of defendant] intended to cause injury to [name of
plaintiff]?] [or]
2. [[name of defendant]’s conduct was despicable and was carried out
with a willful or conscious disregard of [name of plaintiff]’s rights
or safety?] [or]
2. [[name of defendant]’s conduct was despicable and subjected [name
of plaintiff] to cruel and unjust hardship in conscious disregard of
[name of plaintiff]’s rights?] [or]
2. [[name of defendant] intentionally misrepresented or concealed a
material fact known to [name of defendant], intending to cause
[name of plaintiff] harm?]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] suffer serious emotional distress from a
fear, confirmed by reliable medical or scientific opinion, that
[name of plaintiff]’s risk of developing [insert applicable cancer,
HIV, or AIDS] was significantly increased by the exposure and has
resulted in an actual risk that is significant?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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VF-1606 EMOTIONAL DISTRESS
4. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s serious emotional distress?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
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EMOTIONAL DISTRESS VF-1606
Directions for Use
This verdict form is based on CACI No. 1623, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1607–VF-1699. Reserved for Future Use
1007
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Copyright Judicial Council of California
DEFAMATION
1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and
Limited Public Figure)
1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure and
Limited Public Figure)
1702. Defamation per se—Essential Factual Elements (Private Figure—Matter of
Public Concern)
1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter
of Public Concern)
1704. Defamation per se—Essential Factual Elements (Private Figure—Matter of
Private Concern)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter
of Private Concern)
1706. Definition of Statement
1707. Fact Versus Opinion
1708. Coerced Self-Publication
1709. Retraction: News Publication or Broadcast (Civ. Code, § 48a)
1710–1719. Reserved for Future Use
1720. Affirmative Defense—Truth
1721. Affirmative Defense—Consent
1722. Affirmative Defense—Statute of Limitations—Defamation
1723. Common Interest Privilege—Malice (Civ. Code, § 47(c))
1724. Fair and True Reporting Privilege (Civ. Code, § 47(d))
1725–1729. Reserved for Future Use
1730. Slander of Title—Essential Factual Elements
1731. Trade Libel—Essential Factual Elements
1732–1799. Reserved for Future Use
VF-1700. Defamation per se (Public Officer/Figure and Limited Public Figure)
VF-1701. Defamation per quod (Public Officer/Figure and Limited Public Figure)
VF-1702. Defamation per se (Private Figure—Matter of Public Concern)
VF-1703. Defamation per quod (Private Figure—Matter of Public Concern)
VF-1704. Defamation per se—Affirmative Defense—Truth (Private Figure—Matter
of Private Concern)
VF-1705. Defamation per quod (Private Figure—Matter of Private Concern)
VF-1706–VF-1719. Reserved for Future Use
VF-1720. Slander of Title
VF-1721. Trade Libel
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DEFAMATION
VF-1722–VF-1799. Reserved for Future Use
Table A. Defamation Per Se
Table B. Defamation Per Quod
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1700. Defamation per se—Essential Factual Elements (Public
Officer/Figure and Limited Public Figure)
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by making [one or more of] the following
statement(s): [list all claimed per se defamatory statements]. To establish
this claim, [name of plaintiff] must prove that all of the following are
more likely true than not true:
Liability
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
3. [That [this person/these people] reasonably understood the
statement(s) to mean that [insert ground(s) for defamation per se,
e.g., “[name of plaintiff] had committed a crime”]]; and
4. That the statement(s) [was/were] false.
In addition, [name of plaintiff] must prove by clear and convincing
evidence that [name of defendant] knew the statement(s) [was/were] false
or had serious doubts about the truth of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she/nonbinary
pronoun] is entitled to recover [his/her/nonbinary pronoun] actual damages
if [he/she/nonbinary pronoun] proves that [name of defendant]’s wrongful
conduct was a substantial factor in causing any of the following:
a. Harm to [name of plaintiff]’s property, business, trade, profession,
or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Assumed Damages
Even if [name of plaintiff] has not proved any actual damages for harm
to reputation or shame, mortification, or hurt feelings, the law
nonetheless assumes that [he/she/nonbinary pronoun] has suffered this
harm. Without presenting evidence of damage, [name of plaintiff] is
entitled to receive compensation for this assumed harm in whatever sum
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CACI No. 1700 DEFAMATION
you believe is reasonable. You must award at least a nominal sum, such
as one dollar.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she/nonbinary pronoun] proves by clear and convincing
evidence that [name of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, June 2016, December 2016, January
2018
Directions for Use
Special verdict form CACI No. VF-1700, Defamation per se (Public Offıcer/Figure
and Limited Public Figure), should be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face (i.e.,
if the judge has not determined that the statement is defamatory as a matter of law).
For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and
46 (slander). Note that certain specific grounds of libel per se have been defined by
case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
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DEFAMATION CACI No. 1700
• Slander Defined. Civil Code section 46.
• “Defamation is the intentional publication of a statement of fact that is false,
unprivileged, and has a natural tendency to injure or that causes special
damage.” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486 [183 Cal.Rptr.3d
867].)
• “The elements of a defamation claim are (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage. ‘In general, . . . a written communication that is false, that is
not protected by any privilege, and that exposes a person to contempt or ridicule
or certain other reputational injuries, constitutes libel.’ The defamatory statement
must specifically refer to, or be ‘ “of [or] concerning,” ’ the plaintiff.” (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1259 [217 Cal.Rptr.3d 234], internal
citations omitted.)
• “ ‘A statement is defamatory when it tends “directly to injure [a person] in
respect to [that person’s] office, profession, trade or business, either by imputing
to [the person] general disqualification in those respects which the office or other
occupation peculiarly requires, or by imputing something with reference to [the
person’s] office, profession, trade, or business that has a natural tendency to
lessen its profits.” ’ ” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [242
Cal.Rptr.3d 809], internal citation omitted.)
• “In a case in which a plaintiff seeks to maintain an action for defamation by
implication, the plaintiff must demonstrate that (1) his or her interpretation of the
statement is reasonable; (2) the implication or implications to be drawn convey
defamatory facts, not opinions; (3) the challenged implications are not
‘ “substantially true” ’; and (4) the identified reasonable implications could also
be reasonably deemed defamatory.” (Issa, supra, 31 Cal.App.5th at p. 707.)
• “ ‘If the person defamed is a public figure, he cannot recover unless he proves,
by clear and convincing evidence . . . , that the libelous statement was made
with “ ‘actual malice’—that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.” ’ ‘The rationale for such differential
treatment is, first, that the public figure has greater access to the media and
therefore greater opportunity to rebut defamatory statements, and second, that
those who have become public figures have done so voluntarily and therefore
“invite attention and comment.” ’ ” (Jackson, supra, 10 Cal.App.5th at p. 1259,
footnotes and internal citations omitted.)
• “[S]tatements cannot form the basis of a defamation action if they cannot be
reasonably interpreted as stating actual facts about an individual. Thus, rhetorical
hyperbole, vigorous epithets, lusty and imaginative expressions of contempt and
language used in a loose, figurative sense will not support a defamation action.”
(Grenier, supra, 234 Cal.App.4th at p. 486.)
• “ ‘ “If no reasonable reader would perceive in a false and unprivileged
publication a meaning which tended to injure the subject’s reputation in any of
the enumerated respects, then there is no libel at all. If such a reader would
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CACI No. 1700 DEFAMATION
perceive a defamatory meaning without extrinsic aid beyond his or her own
intelligence and common sense, then . . . there is a libel per se. But if the
reader would be able to recognize a defamatory meaning only by virtue of his or
her knowledge of specific facts and circumstances, extrinsic to the publication,
which are not matters of common knowledge rationally attributable to all
reasonable persons, then . . . the libel cannot be libel per se but will be libel per
quod,” requiring pleading and proof of special damages.’ ” (Barker v. Fox &
Associates (2015) 240 Cal.App.4th 333, 351−352 [192 Cal.Rptr.3d 511].)
• “A slander that falls within the first four subdivisions of Civil Code section 46 is
slander per se and requires no proof of actual damages. A slander that does not
fit into those four subdivisions is slander per quod, and special damages are
required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
• “With respect to slander per se, the trial court decides if the alleged statement
falls within Civil Code section 46, subdivisions 1 through 4. It is then for the
trier of fact to determine if the statement is defamatory. This allocation of
responsibility may appear, at first glance, to result in an overlap of
responsibilities because a trial court determination that the statement falls within
those categories would seemingly suggest that the statement, if false, is
necessarily defamatory. But a finder of fact might rely upon extraneous evidence
to conclude that, under the circumstances, the statement was not defamatory.”
(The Nethercutt Collection, supra, 172 Cal.App.4th at pp. 368–369.)
• “[T]he jury was instructed that if it found that defendant published matter that
was defamatory on its face and it found by clear and convincing evidence that
defendant knew the statement was false or published it in reckless disregard of
whether it was false, then the jury ‘also may award plaintiff presumed general
damages.’ Presumed damages ‘are those damages that necessarily result from the
publication of defamatory matter and are presumed to exist. They include
reasonable compensation for loss of reputation, shame, mortification, and hurt
feeling. No definite standard or method of calculation is prescribed by law by
which to fix reasonable compensation for presumed damages, and no evidence of
actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable compensation. In making an award for presumed
damages, you shall exercise your authority with calm and reasonable judgment
and the damages you fix shall be just and reasonable in the light of the evidence.
You may in the exercise of your discretion award nominal damages only, namely
an insignificant sum such as one dollar.’ [¶] . . . [¶] . . . [T]he instant
instruction, which limits damages to ‘those damages that necessarily result from
the publication of defamatory matter,’ constitutes substantial compliance with
[Civil Code] section 3283. Thus, the instant instructions, ‘if obeyed, did not
allow the jurors to “enter the realm of speculation” regarding future suffering.’ ”
(Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1472–1473 [48 Cal.Rptr.2d
235], internal citations omitted.)
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• “In defamation actions generally, factual truth is a defense which it is the
defendant’s burden to prove. In a defamation action against a newspaper by a
private person suing over statements of public concern, however, the First
Amendment places the burden of proving falsity on the plaintiff. As a matter of
constitutional law, therefore, media statements on matters of public interest,
including statements of opinion which reasonably imply a knowledge of facts,
‘must be provable as false before there can be liability under state defamation
law.’ ” (Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1382
[88 Cal.Rptr.2d 802], internal citations omitted.)
• In matters involving public concern, the First Amendment protection applies to
nonmedia defendants, putting the burden of proving falsity of the statement on
the plaintiff. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375
[54 Cal.Rptr.2d 781].)
• “Publication means communication to some third person who understands the
defamatory meaning of the statement and its application to the person to whom
reference is made. Publication need not be to the ‘public’ at large;
communication to a single individual is sufficient.” (Smith, supra, 72
Cal.App.4th at p. 645, internal citations omitted.)
• “[W]hen a party repeats a slanderous charge, he is equally guilty of defamation,
even though he states the source of the charge and indicates that he is merely
repeating a rumor.” (Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th
10, 26 [80 Cal.Rptr.2d 1], internal citation omitted.)
• “At common law, one who republishes a defamatory statement is deemed
thereby to have adopted it and so may be held liable, together with the person
who originated the statement, for resulting injury to the reputation of the
defamation victim. California has adopted the common law in this regard,
although by statute the republication of defamatory statements is privileged in
certain defined situations.” (Khawar v. Globe Internat. (1998) 19 Cal.4th 254,
268 [79 Cal.Rptr.2d 178, 965 P.2d 696], internal citations omitted.)
• The general rule is that “a plaintiff cannot manufacture a defamation cause of
action by publishing the statements to third persons; the publication must be
done by the defendant.” There is an exception to this rule. [When it is
foreseeable that the plaintiff] “ ‘will be under a strong compulsion to disclose the
contents of the defamatory statement to a third person after he has read it or
been informed of its contents.’ ” (Live Oak Publishing Co. v. Cohagan (1991)
234 Cal.App.3d 1277, 1284 [286 Cal.Rptr. 198], internal citations omitted.)
• Whether a plaintiff in a defamation action is a public figure is a question of law
for the trial court. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d
244, 252 [208 Cal.Rptr. 137, 690 P.2d 610].)
• “To qualify as a limited purpose public figure, a plaintiff ‘must have undertaken
some voluntary [affirmative] act[ion] through which he seeks to influence the
resolution of the public issues involved.’ ” (Rudnick v. McMillan (1994) 25
Cal.App.4th 1183, 1190 [31 Cal.Rptr.2d 193]; see also Mosesian v. McClatchy
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Newspapers (1991) 233 Cal.App.3d 1685, 1689 [285 Cal.Rptr. 430].)
• “Characterizing a plaintiff as a limited purpose public figure requires the
presence of certain elements. First, there must be a public controversy about a
topic that concerns a substantial number of people. In other words, the issue was
publicly debated. Second, the plaintiff must have voluntarily acted to influence
resolution of the issue of public interest. To satisfy this element, the plaintiff
need only attempt to thrust himself or herself into the public eye. Once the
plaintiff places himself or herself in the spotlight on a topic of public interest,
his or her private words and acts relating to that topic become fair game.
However, the alleged defamation must be germane to the plaintiff’s participation
in the public controversy.” (Grenier, supra, 234 Cal.App.4th at p. 484, internal
citations omitted.)
• “The First Amendment limits California’s libel law in various respects. When, as
here, the plaintiff is a public figure, he cannot recover unless he proves by clear
and convincing evidence that the defendant published the defamatory statement
with actual malice, i.e., with ‘knowledge that it was false or with reckless
disregard of whether it was false or not.’ Mere negligence does not suffice.
Rather, the plaintiff must demonstrate that the author ‘in fact entertained serious
doubts as to the truth of his publication,’ or acted with a ‘high degree of
awareness of . . . probable falsity.’ ” (Masson v. New Yorker Magazine (1991)
501 U.S. 496, 510 [111 S.Ct. 2419, 115 L.Ed.2d 447], internal citations omitted;
see St. Amant v. Thompson (1968) 390 U.S. 727, 731 [88 S.Ct. 1323, 20 L.Ed.2d
262]; New York Times v. Sullivan (1964) 376 U.S. 254, 279–280 [84 S.Ct. 710,
11 L.Ed.2d 686].)
• The New York Times v. Sullivan standard applies to private individuals with
respect to presumed or punitive damages if the statement involves a matter of
public concern. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 349 [94 S.Ct.
2997, 41 L.Ed.2d 789].)
• “California . . . permits defamation liability so long as it is consistent with the
requirements of the United States Constitution.” (Melaleuca, Inc. v. Clark (1998)
66 Cal.App.4th 1344, 1359 [78 Cal.Rptr.2d 627], citing Brown v. Kelly
Broadcasting Co. (1989) 48 Cal.3d 711, 740–742 [257 Cal.Rptr. 708, 771 P.2d
406].)
• “Actual malice under the New York Times standard should not be confused with
the concept of malice as an evil intent or a motive arising from spite or ill
will. . . . In place of the term actual malice, it is better practice that jury
instructions refer to publication of a statement with knowledge of falsity or
reckless disregard as to truth or falsity.” (Masson, supra, 501 U.S. at pp.
510–511, internal citations omitted.)
• Actual malice “does not require that the reporter hold a devout belief in the truth
of the story being reported, only that he or she refrain from either reporting a
story he or she knows to be false or acting in reckless disregard of the truth.”
(Jackson, supra, 68 Cal.App.4th at p. 35.)
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• “The law is clear [that] the recklessness or doubt which gives rise to actual or
constitutional malice is subjective recklessness or doubt.” (Melaleuca, Inc.,
supra, 66 Cal.App.4th at p. 1365.)
• To show reckless disregard, “[t]here must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
his publication. Publishing with such doubts shows reckless disregard for truth or
falsity and demonstrates actual malice.” (St. Amant, supra, 390 U.S. at p. 731.)
• “ ‘A defamation plaintiff may rely on inferences drawn from circumstantial
evidence to show actual malice. [Citation.] “A failure to investigate [fn. omitted]
[citation], anger and hostility toward the plaintiff [citation], reliance upon sources
known to be unreliable [citations], or known to be biased against the plaintiff
[citations]—such factors may, in an appropriate case, indicate that the publisher
himself had serious doubts regarding the truth of his publication.” ’ ” (Sanders v.
Walsh (2013) 219 Cal.App.4th 855, 873 [162 Cal.Rptr.3d 188].)
• “ ‘ “[Evidence] of negligence, of motive and of intent may be adduced for the
purpose of establishing, by cumulation and by appropriate inferences, the fact of
a defendant’s recklessness or of his knowledge of falsity.” [Citations.] A failure
to investigate [citation], anger and hostility toward the plaintiff [citation],
reliance upon sources known to be unreliable [citations], or known to be biased
against the plaintiff [citations]—such factors may, in an appropriate case,
indicate that the publisher himself had serious doubts regarding the truth of his
publication. [¶] We emphasize that such evidence is relevant only to the extent
that it reflects on the subjective attitude of the publisher. [Citations.] The failure
to conduct a thorough and objective investigation, standing alone, does not prove
actual malice, nor even necessarily raise a triable issue of fact on that
controversy. [Citations.] Similarly, mere proof of ill will on the part of the
publisher may likewise be insufficient. [Citation.]’ ” (Young v. CBS Broadcasting,
Inc. (2012) 212 Cal.App.4th 551, 563 [151 Cal.Rptr.3d 237], quoting Reader’s
Digest Assn., supra, 37 Cal.3d at pp. 257–258, footnote omitted.)
• “An entity other than a natural person may be libeled.” (Live Oak Publishing
Co., supra, 234 Cal.App.3d at p. 1283.)
• “A political challenger must be afforded leeway to characterize the conduct of
his opponent, even if such characterization takes the most negative perspective,
in order to ensure ‘uninhibited, robust, and wide-open’ debate on public issues.
Again, ‘[h]yperbole, distortion, invective, and tirades’ are ‘a part of American
politics,’ and while providing protection for such speech may allow ‘candidates
and their supporters to express . . . the most vile sentiments,’ it is nevertheless
necessary in order to ensure the ‘opportunity to criticize and comment upon
government and the issues of the day.’ ” (Issa, supra, 31 Cal.App.5th at p. 709,
internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 705–718
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
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Employment Torts And Related Claims—Defamation, ¶¶ 5:472, 5:577 (The Rutter
Group)
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.10 et seq. (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.24–142.27 (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:44–21:52 (Thomson
Reuters)
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1701. Defamation per quod—Essential Factual Elements (Public
Officer/Figure and Limited Public Figure)
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by making [one or more of] the following
statement(s): [list all claimed per quod defamatory statements].
Liability
To establish this claim, [name of plaintiff] must prove that all of the
following are more likely true than not true:
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
3. That because of the facts and circumstances known to the
[listener(s)/reader(s)] of the statement(s), [it/they] tended to injure
[name of plaintiff] in [his/her/nonbinary pronoun] occupation [or to
expose [him/her/nonbinary pronoun] to hatred, contempt, ridicule,
or shame] [or to discourage others from associating or dealing
with [him/her/nonbinary pronoun]];
4. That the statement(s) [was/were] false;
5. That [name of plaintiff] suffered harm to [his/her/nonbinary
pronoun] property, business, profession, or occupation [including
money spent as a result of the statement(s)]; and
6. That the statement(s) [was/were] a substantial factor in causing
[name of plaintiff]’s harm.
In addition, [name of plaintiff] must prove by clear and convincing
evidence that [name of defendant] knew the statement(s) [was/were] false
or had serious doubts about the truth of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she/nonbinary
pronoun] is entitled to recover if [he/she/nonbinary pronoun] proves it is
more likely true than not true that [name of defendant]’s wrongful
conduct was a substantial factor in causing any of the following actual
damages:
a. Harm to [name of plaintiff]’s property, business, trade, profession,
or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements;
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c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she/nonbinary pronoun] proves by clear and convincing
evidence that [name of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, June 2016, December 2016, January
2018
Directions for Use
Special verdict form CACI No. VF-1701, Defamation per quod (Public
Offıcer/Figure and Limited Public Figure), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per quod
case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
See also the Sources and Authority to CACI No. 1700, Defamation per
se—Essential Factual Elements (Public Offıcer/Figure and Limited Public Figure).
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
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• Slander Defined. Civil Code section 46.
• Special Damages. Civil Code section 48a(4)(b).
• “The elements of a defamation claim are (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage.” (Wong v. Jing (2011) 189 Cal.App.4th 1354, 1369 [117
Cal.Rptr.3d 747].)
• “ ‘ “If no reasonable reader would perceive in a false and unprivileged
publication a meaning which tended to injure the subject’s reputation in any of
the enumerated respects, then there is no libel at all. If such a reader would
perceive a defamatory meaning without extrinsic aid beyond his or her own
intelligence and common sense, then . . . there is a libel per se. But if the
reader would be able to recognize a defamatory meaning only by virtue of his or
her knowledge of specific facts and circumstances, extrinsic to the publication,
which are not matters of common knowledge rationally attributable to all
reasonable persons, then . . . the libel cannot be libel per se but will be libel per
quod,” requiring pleading and proof of special damages.’ ” (Barker v. Fox &
Associates (2015) 240 Cal.App.4th 333, 351−352 [192 Cal.Rptr.3d 511].)
• “If [a] defamatory meaning would appear only to readers who might be able to
recognize it through some knowledge of specific facts and/or circumstances, not
discernible from the face of the publication, and which are not matters of
common knowledge rationally attributable to all reasonable persons, then the
libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis
Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73], internal citation
omitted.)
• “The question whether challenged statements convey the requisite factual
imputation is ordinarily a question of law for the court. However, . . . , some
statements are ambiguous and cannot be characterized as factual or nonfactual as
a matter of law. ‘In these circumstances, it is for the jury to determine whether
an ordinary reader would have understood the article as a factual
assertion . . . .’ ” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608 [284
Cal.Rptr. 244].)
• “In pleading a case of libel per quod the plaintiff cannot assume that the court
has access to the reader’s special knowledge of extrinsic facts but must specially
plead and prove those facts.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th
at p. 7.)
• “A libel ‘per quod,’ . . . requires that the injurious character or effect be
established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
• “ ‘The purpose of the rule requiring proof of special damages when the
defamatory meaning does not appear on the face of the language used is to
protect publishers who make statements innocent in themselves that are
defamatory only because of extrinsic facts known to the reader.’ ‘In the libel
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context, “inducement” and “innuendo” are terms of art: “[W]here the language is
ambiguous and an explanation is necessary to establish the defamatory meaning,
the pleader must do two things: (1) Allege his interpretation of the defamatory
meaning of the language (the ‘innuendo,’ . . .); (2) support that interpretation by
alleging facts showing that the readers or hearers to whom it was published
would understand it in that defamatory sense (the ‘inducement’).” [Citation.]
“The office of an innuendo is to declare what the words meant to those to whom
they were published.” “In order to plead . . . ambiguous language into an
actionable libel . . . it is incumbent upon the plaintiff also to plead an
inducement, that is to say, circumstances which would indicate that the words
were understood in a defamatory sense showing that the situation or opinion of
the readers was such that they derived a defamatory meaning from them.
[Citation.]” ’ ” (Bartholomew v. YouTube, LLC. (2017) 17 Cal.App.5th 1217,
1227 [225 Cal.Rptr.3d 917], original italics, internal citations omitted.)
• “For libel per quod, which [plaintiff] herself emphasizes is the cause of action at
issue here, it is ‘necessary that the words should have been published concerning
the plaintiff and should have been understood by at least one third person to
have concerned him [or her]. [Citations.] “Defamatory words to be actionable
must refer to some ascertained or ascertainable person, and that person must be
plaintiff [citations]. If the words used really contain no reflection upon any
particular individual, no averment can make them defamatory. It is not necessary
that plaintiff should be mentioned by name if the words used in describing the
person meant, can be shown to have referred to him and to have been so
understood [citation].” [Citation].’ ‘ “It is the office of the inducement to narrate
the extrinsic circumstances which, coupled with the language published, affect its
construction and render it actionable, where, standing alone and not thus
explained, the language would appear either not to concern the plaintiff, or, if
concerning him, not to affect him injuriously. [Citation.]” ’ ” (Bartholomew,
supra, 17 Cal.App.5th at p. 1231, internal citation omitted.)
• “A slander that falls within the first four subdivisions of Civil Code section 46 is
slander per se and requires no proof of actual damages. A slander that does not
fit into those four subdivisions is slander per quod, and special damages are
required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 705–718
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.10–340.75 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.24–142.27 (Matthew Bender)
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California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:44–21:52 (Thomson
Reuters)
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1702. Defamation per se—Essential Factual Elements (Private
Figure—Matter of Public Concern)
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by making [one or more of] the following
statement(s): [list all claimed per se defamatory statement(s)]. To establish
this claim, [name of plaintiff] must prove all of the following:
Liability
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
[3. That [this person/these people] reasonably understood the
statement(s) to mean that [insert ground(s) for defamation per se,
e.g., “[name of plaintiff] had committed a crime”];]
4. That the statement(s) [was/were] false; and
5. That [name of defendant] failed to use reasonable care to
determine the truth or falsity of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she/nonbinary
pronoun] is entitled to recover [his/her/nonbinary pronoun] actual damages
if [he/she/nonbinary pronoun] proves that [name of defendant]’s wrongful
conduct was a substantial factor in causing any of the following:
a. Harm to [name of plaintiff]’s property, business, trade, profession,
or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Assumed Damages
If [name of plaintiff] has not proved any actual damages for harm to
reputation or shame, mortification, or hurt feelings but proves by clear
and convincing evidence that [name of defendant] knew the statement(s)
[was/were] false or that [he/she/nonbinary pronoun] had serious doubts
about the truth of the statement(s), then the law assumes that [name of
plaintiff]’s reputation has been harmed and that [he/she/nonbinary
pronoun] has suffered shame, mortification, or hurt feelings. Without
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presenting evidence of damage, [name of plaintiff] is entitled to receive
compensation for this assumed harm in whatever sum you believe is
reasonable. You must award at least a nominal sum, such as one dollar.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she/nonbinary pronoun] proves by clear and convincing
evidence that [name of defendant] either knew the statement(s) [was/were]
false or had serious doubts about the truth of the statement(s), and that
[he/she/nonbinary pronoun] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, October 2008, December 2009, June
2016, December 2016, January 2018
Directions for Use
Special verdict form CACI No. VF-1702, Defamation per se (Private
Figure—Matter of Public Concern), should be used in this type of case.
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1700,
Defamation per se—Essential Factual Elements (Public Offıcer/Figure and Limited
Public Figure).
Use the bracketed element 3 only if the statement is not defamatory on its face (i.e.,
if the judge has not determined that the statement is defamatory as a matter of law).
For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and
46 (slander). Note that certain specific grounds of libel per se have been defined by
case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
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Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
Sources and Authority
• “Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact that is false, unprivileged, and has a
natural tendency to injure or which causes special damage.” (Smith v. Maldonado
(1999) 72 Cal.App.4th 637, 645 [85 Cal.Rptr.2d 397].)
• “The question whether a plaintiff is a public figure is to be determined by the
court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195,
203–204 [35 Cal.Rptr.2d 740], internal citation omitted.)
• “Our accommodation of the competing values at stake in defamation suits by
private individuals allows the States to impose liability on the publisher or
broadcaster of defamatory falsehood on a less demanding showing than that
required by New York Times. This conclusion is not based on a belief that the
considerations which prompted the adoption of the New York Times privilege for
defamation of public officials and its extension to public figures are wholly
inapplicable to the context of private individuals. Rather, we endorse this
approach in recognition of the strong and legitimate state interest in
compensating private individuals for injury to reputation. But this countervailing
state interest extends no further than compensation for actual injury. For the
reasons stated below, we hold that the States may not permit recovery of
presumed or punitive damages, at least when liability is not based on a showing
of knowledge of falsity or reckless disregard for the truth.” (Gertz v. Robert
Welch, Inc. (1974) 418 U.S. 323, 348–349 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
• “ ‘[I]f the issue was being debated publicly and if it had foreseeable and
substantial ramifications for nonparticipants, it was a public controversy.’ ”
(Copp v. Paxton (1996) 45 Cal.App.4th 829, 845 [52 Cal.Rptr.2d 831].)
• “[T]he jury was instructed that if it found that defendant published matter that
was defamatory on its face and it found by clear and convincing evidence that
defendant knew the statement was false or published it in reckless disregard of
whether it was false, then the jury ‘also may award plaintiff presumed general
damages.’ Presumed damages ‘are those damages that necessarily result from the
publication of defamatory matter and are presumed to exist. They include
reasonable compensation for loss of reputation, shame, mortification, and hurt
feeling. No definite standard or method of calculation is prescribed by law by
which to fix reasonable compensation for presumed damages, and no evidence of
actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable compensation. In making an award for presumed
damages, you shall exercise your authority with calm and reasonable judgment
and the damages you fix shall be just and reasonable in the light of the evidence.
You may in the exercise of your discretion award nominal damages only, namely
an insignificant sum such as one dollar.’ [¶¶] . . . [T]he instant instruction,
which limits damages to ‘those damages that necessarily result from the
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DEFAMATION CACI No. 1702
publication of defamatory matter,’ constitutes substantial compliance with [Civil
Code] section 3283. Thus, the instant instructions, ‘if obeyed, did not allow the
jurors to “enter the realm of speculation” regarding future suffering.’ ” (Sommer
v. Gabor (1995) 40 Cal.App.4th 1455, 1472–1473 [48 Cal.Rptr.2d 235], internal
citations omitted.)
• The jury should be instructed that the defendant’s negligence is an element of
libel if the plaintiff is a private figure. (Carney v. Santa Cruz Women Against
Rape (1990) 221 Cal.App.3d 1009, 1016 [271 Cal.Rptr. 30].)
• “When the speech involves a matter of public concern, a private-figure plaintiff
has the burden of proving the falsity of the defamation.” (Brown v. Kelly
Broadcasting Co. (1989) 48 Cal.3d 711, 747 [257 Cal.Rptr. 708, 771 P.2d 406].)
• “Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed,
the more customary types of actual harm inflicted by defamatory falsehood
include impairment of reputation and standing in the community, personal
humiliation, and mental anguish and suffering. Of course, juries must be limited
by appropriate instructions, and all awards must be supported by competent
evidence concerning the injury, although there need be no evidence which
assigns an actual dollar value to the injury.” (Gertz, supra, 418 U.S. at p. 350.)
• Private-figure plaintiffs must prove actual malice to recover punitive or presumed
damages for defamation if the matter is one of public concern. They are only
required to prove negligence to recover damages for actual injury to reputation.
(Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79 Cal.Rptr.2d 178,
965 P.2d 696].)
• “A private-figure plaintiff must prove at least negligence to recover any damages
and, when the speech involves a matter of public concern, he must also prove
New York Times malice . . . to recover presumed or punitive damages. This
malice must be established by ‘clear and convincing proof.’ ” (Brown, supra, 48
Cal.3d at p. 747, internal citations omitted.)
• When the court is instructing on punitive damages, it is error to fail to instruct
that New York Times malice is required when the statements at issue involve
matters of public concern. (Carney, supra, 221 Cal.App.3d at p. 1022.)
• “To prove actual malice . . . a plaintiff must ‘demonstrate with clear and
convincing evidence that the defendant realized that his statement was false or
that he subjectively entertained serious doubts as to the truth of his statement.’ ”
(Khawar, supra, 19 Cal.4th at p. 275, internal citation omitted.)
• “Because actual malice is a higher fault standard than negligence, a finding of
actual malice generally includes a finding of negligence . . . .” (Khawar, supra,
19 Cal.4th at p. 279.)
• “The inquiry into the protected status of speech is one of law, not fact.” (Nizam-
Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [54 Cal.Rptr.2d 781],
quoting Connick v. Myers (1983) 461 U.S. 138, 148, fn. 7 [103 S.Ct. 1684, 75
L.Ed.2d 708].)
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• “For the New York Times standard to be met, ‘the publisher must come close to
willfully blinding itself to the falsity of its utterance.’ ” (Brown, supra, 48 Cal.3d
at p. 747, internal citation omitted.)
• “ ‘While such speech is not totally unprotected by the First Amendment, its
protections are less stringent’ [than that applying to speech on matters of public
concern].” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434,
445 [26 Cal.Rptr.2d 305], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 719–721
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.12–340.13, 340.18 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.30–142.40, 142.87 et seq. (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
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1703. Defamation per quod—Essential Factual Elements (Private
Figure—Matter of Public Concern)
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by making [one or more of] the following
statement(s): [insert all claimed per quod defamatory statements]. To
establish this claim, [name of plaintiff] must prove all of the following:
Liability
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
3. That because of the facts and circumstances known to the
[listener(s)/reader(s)] of the statement(s), [it/they] tended to injure
[name of plaintiff] in [his/her/nonbinary pronoun] occupation [or to
expose [him/her/nonbinary pronoun] to hatred, contempt, ridicule,
or shame] [or to discourage others from associating or dealing
with [him/her/nonbinary pronoun]];
4. That the statement(s) [was/were] false;
5. That [name of defendant] failed to use reasonable care to
determine the truth or falsity of the statement(s);
6. That [name of plaintiff] suffered harm to [his/her/nonbinary
pronoun] property, business, profession, or occupation [including
money spent as a result of the statement(s)]; and
7. That the statements [was/were] a substantial factor in causing
[name of plaintiff]’s harm.
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she/nonbinary
pronoun] is entitled to recover if [he/she/nonbinary pronoun] proves that
[name of defendant]’s wrongful conduct was a substantial factor in
causing any of the following actual damages:
a. Harm to [name of plaintiff]’s property, business, trade, profession,
or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
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CACI No. 1703 DEFAMATION
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she/nonbinary pronoun] proves by clear and convincing
evidence that [name of defendant] either knew the statement(s) [was/were]
false or had serious doubts about the truth of the statement(s), and that
[he/she/nonbinary pronoun] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1703, Defamation per quod (Private Figure—Matter of
Public Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per quod
case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1701,
Defamation per quod—Essential Factual Elements (Public Offıcer/Figure and
Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
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DEFAMATION CACI No. 1703
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “If [a] defamatory meaning would appear only to readers who might be able to
recognize it through some knowledge of specific facts and/or circumstances, not
discernible from the face of the publication, and which are not matters of
common knowledge rationally attributable to all reasonable persons, then the
libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis
Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
• “In pleading a case of libel per quod the plaintiff cannot assume that the court
has access to the reader’s special knowledge of extrinsic facts but must specially
plead and prove those facts.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th
at p. 7, footnote omitted.)
• “A libel ‘per quod’ . . . requires that the injurious character or effect be
established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
• “In the libel context, ‘inducement’ and ‘innuendo’ are terms of art: ‘[W]here the
language is ambiguous and an explanation is necessary to establish the
defamatory meaning, the pleader must do two things: (1) Allege his
interpretation of the defamatory meaning of the language (the “innuendo,” . . . );
(2) support that interpretation by alleging facts showing that the readers or
hearers to whom it was published would understand it in that defamatory sense
(the “inducement”).’ ” (Barnes-Hind, Inc. v. Superior Court (1986) 181
Cal.App.3d 377, 387 [226 Cal.Rptr. 354].)
• “A defamatory publication not libelous on its face is not actionable unless the
plaintiff alleges that he has suffered special damages as a result thereof.” (Selleck
v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr. 838].)
• “The question whether a statement is reasonably susceptible to a defamatory
interpretation is a question of law for the trial court. Only once the court has
determined that a statement is reasonably susceptible to such a defamatory
interpretation does it become a question for the trier of fact whether or not it
was so understood.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [85
Cal.Rptr.2d 397], internal citations omitted.)
• Private-figure plaintiffs must prove actual malice to recover punitive or presumed
damages for defamation if the matter is one of public concern. They are only
required to prove negligence to recover damages for actual injury to reputation.
(Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79 Cal.Rptr.2d 178,
965 P.2d 696].)
• “ ‘[I]f the issue was being debated publicly and if it had foreseeable and
substantial ramifications for nonparticipants, it was a public controversy.’ ”
(Copp v. Paxton (1996) 45 Cal.App.4th 829, 845 [52 Cal.Rptr.2d 831], quoting
Waldbaum v. Fairchild Publications, Inc. (D.C. Cir. 1980) 627 F.2d 1287, 1297.)
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CACI No. 1703 DEFAMATION
• If the language is not defamatory on its face, there is no distinction between
libel and slander: “In either case, the fact that a statement is not defamatory on
its face requires only that the plaintiff plead and prove the defamatory meaning
and special damages.” (Savage v. Pacific Gas & Electric Co. (1993) 21
Cal.App.4th 434, 447 [26 Cal.Rptr.2d 305].)
• A plaintiff must prove that the defendant was at least negligent in failing to
ascertain the truth or falsity of the statement. (Gertz v. Robert Welch, Inc. (1974)
418 U.S. 323, 345–347 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
• “The question whether a plaintiff is a public figure is to be determined by the
court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195,
203–204 [35 Cal.Rptr.2d 740], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 719–721
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.11, 340.13 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.30–142.40 (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson Reuters)
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1704. Defamation per se—Essential Factual Elements (Private
Figure—Matter of Private Concern)
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by making [one or more of] the following
statement(s): [list all claimed per se defamatory statement(s)]. To establish
this claim, [name of plaintiff] must prove all of the following:
Liability
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
3. [That [this person/these people] reasonably understood the
statement(s) to mean that [insert ground(s) for defamation per se,
e.g., “[name of plaintiff] had committed a crime”]];
4. That [name of defendant] failed to use reasonable care to
determine the truth or falsity of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she/nonbinary
pronoun] is entitled to recover [his/her/nonbinary pronoun] actual damages
if [he/she/nonbinary pronoun] proves that [name of defendant]’s wrongful
conduct was a substantial factor in causing any of the following:
a. Harm to [name of plaintiff]’s property, business, trade, profession,
or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Assumed Damages
Even if [name of plaintiff] has not proved any actual damages for harm
to reputation or shame, mortification, or hurt feelings, the law assumes
that [he/she/nonbinary pronoun] has suffered this harm. Without
presenting evidence of damage, [name of plaintiff] is entitled to receive
compensation for this assumed harm in whatever sum you believe is
reasonable. You must award at least a nominal sum, such as one dollar.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
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CACI No. 1704 DEFAMATION
defendant] if [he/she/nonbinary pronoun] proves by clear and convincing
evidence that [name of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1704, Defamation per se—Affırmative Defense—Truth
(Private Figure—Matter of Private Concern), may be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face (i.e.,
if the judge has not determined that the statement is defamatory as a matter of law).
For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and
46 (slander). Note that certain specific grounds of libel per se have been defined by
case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1700,
Defamation per se—Essential Factual Elements (Public Offıcer/Figure and Limited
Public Figure).
Sources and Authority
• “Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact that is false, unprivileged, and has a
natural tendency to injure or which causes special damage.” (Smith v. Maldonado
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DEFAMATION CACI No. 1704
(1999) 72 Cal.App.4th 637, 645 [85 Cal.Rptr.2d 397].)
• “The question whether a plaintiff is a public figure [or not] is to be determined
by the court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195,
203–204 [35 Cal.Rptr.2d 740], internal citation omitted.)
• The jury should be instructed that the defendant’s negligence is an element of
libel if the plaintiff is a private figure. (Carney v. Santa Cruz Women Against
Rape (1990) 221 Cal.App.3d 1009, 1016 [271 Cal.Rptr. 30].)
• “A private-figure plaintiff must prove at least negligence to recover any damages
and, when the speech involves a matter of public concern, he must also prove
New York Times malice . . . to recover presumed or punitive damages.” (Brown
v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747 [257 Cal.Rptr. 708, 771
P.2d 406].)
• “The First Amendment trumps the common law presumption of falsity in
defamation cases involving private-figure plaintiffs when the allegedly
defamatory statements pertain to a matter of public interest.” (Nizam-Aldine v.
City of Oakland (1996) 47 Cal.App.4th 364, 375 [54 Cal.Rptr.2d 781].)
• “Thus, in a defamation action the burden is normally on the defendant to prove
the truth of the allegedly defamatory communications. However, in
accommodation of First Amendment considerations (which are implicated by
state defamation laws), where the plaintiff is a public figure, the ‘public-figure
plaintiff must show the falsity of the statements at issue in order to prevail in a
suit for defamation.’ ” (Stolz, supra, 30 Cal.App.4th at p. 202, internal citations
omitted.)
• “Since the statements at issue here involved a matter of purely private concern
communicated between private individuals, we do not regard them as raising a
First Amendment issue. ‘While such speech is not totally unprotected by the
First Amendment, its protections are less stringent’ [than that applying to speech
on matters of public concern].” (Savage v. Pacific Gas & Electric Co. (1993) 21
Cal.App.4th 434, 445 [26 Cal.Rptr.2d 305], quoting Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc. (1985) 472 U.S. 749, 760 [105 S.Ct. 2939, 86 L.Ed.2d
593], internal citation omitted.)
• “We conclude that permitting recovery of presumed and punitive damages in
defamation cases absent a showing of ‘actual malice’ does not violate the First
Amendment when the defamatory statements do not involve matters of public
concern.” (Dun & Bradstreet, Inc., supra, 472 U.S. at p. 763.)
• “When the speech is of exclusively private concern and the plaintiff is a private
figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily
force any change in at least some of the features of the common-law landscape.”
(Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 775 [106 S.Ct.
1558, 89 L.Ed.2d 783].)
• “[T]he jury was instructed that if it found that defendant published matter that
was defamatory on its face and it found by clear and convincing evidence that
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CACI No. 1704 DEFAMATION
defendant knew the statement was false or published it in reckless disregard of
whether it was false, then the jury ‘also may award plaintiff presumed general
damages.’ Presumed damages ‘are those damages that necessarily result from the
publication of defamatory matter and are presumed to exist. They include
reasonable compensation for loss of reputation, shame, mortification, and hurt
feeling. No definite standard or method of calculation is prescribed by law by
which to fix reasonable compensation for presumed damages, and no evidence of
actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable compensation. In making an award for presumed
damages, you shall exercise your authority with calm and reasonable judgment
and the damages you fix shall be just and reasonable in the light of the evidence.
You may in the exercise of your discretion award nominal damages only, namely
an insignificant sum such as one dollar.’ [¶¶] . . . [T]he instant instruction,
which limits damages to ‘those damages that necessarily result from the
publication of defamatory matter,’ constitutes substantial compliance with [Civil
Code] section 3283. Thus, the instant instructions, ‘if obeyed, did not allow the
jurors to “enter the realm of speculation” regarding future suffering.’ ” (Sommer
v. Gabor (1995) 40 Cal.App.4th 1455, 1472–1473 [48 Cal.Rptr.2d 235], internal
citations omitted.)
• “In defamation actions generally, factual truth is a defense which it is the
defendant’s burden to prove. In a defamation action against a newspaper by a
private person suing over statements of public concern, however, the First
Amendment places the burden of proving falsity on the plaintiff.” (Eisenberg v.
Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1382 [88 Cal.Rptr.2d 802].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 721
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.18
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.87 (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
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1705. Defamation per quod—Essential Factual Elements (Private
Figure—Matter of Private Concern)
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by making [one or more of] the following
statement(s): [insert all claimed per quod defamatory statements]. To
establish this claim, [name of plaintiff] must prove all of the following:
Liability
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
3. That because of the facts and circumstances known to the
[listener(s)/reader(s)] of the statement(s), [it/they] tended to injure
[name of plaintiff] in [his/her/nonbinary pronoun] occupation [or to
expose [him/her/nonbinary pronoun] to hatred, contempt, ridicule,
or shame] [or to discourage others from associating or dealing
with [him/her/nonbinary pronoun]];
4. That [name of defendant] failed to use reasonable care to
determine the truth or falsity of the statement(s);
5. That [name of plaintiff] suffered harm to [his/her/nonbinary
pronoun] property, business, profession, or occupation [including
money spent as a result of the statement(s)]; and
6. That the statement(s) [was/were] a substantial factor in causing
[name of plaintiff]’s harm.
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she/nonbinary
pronoun] is entitled to recover if [he/she/nonbinary pronoun] proves that
[name of defendant]’s wrongful conduct was a substantial factor in
causing any of the following actual damages:
a. Harm to [name of plaintiff]’s property, business, trade, profession,
or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
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CACI No. 1705 DEFAMATION
defendant] if [he/she/nonbinary pronoun] proves by clear and convincing
evidence that [name of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1705, Defamation per quod (Private Figure—Matter of
Private Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per quod
case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1701,
Defamation per quod—Essential Factual Elements (Public Offıcer/Figure and
Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “If [a] defamatory meaning would appear only to readers who might be able to
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DEFAMATION CACI No. 1705
recognize it through some knowledge of specific facts and/or circumstances, not
discernible from the face of the publication, and which are not matters of
common knowledge rationally attributable to all reasonable persons, then the
libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis
Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
• “In pleading a case of libel per quod the plaintiff cannot assume that the court
has access to the reader’s special knowledge of extrinsic facts but must specially
plead and prove those facts.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th
at p. 7, footnote omitted.)
• “A libel ‘per quod’ . . . requires that the injurious character or effect be
established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
• “In the libel context, ‘inducement’ and ‘innuendo’ are terms of art: ‘[W]here the
language is ambiguous and an explanation is necessary to establish the
defamatory meaning, the pleader must do two things: (1) allege his interpretation
of the defamatory meaning of the language (the “innuendo,” . . . ); (2) support
that interpretation by alleging facts showing that the readers or hearers to whom
it was published would understand it in that defamatory sense (the
“inducement”).’ ” (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d
377, 387 [226 Cal.Rptr. 354].)
• “A defamatory publication not libelous on its face is not actionable unless the
plaintiff alleges that he has suffered special damages as a result thereof.” (Selleck
v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr. 838].)
• “The question whether a statement is reasonably susceptible to a defamatory
interpretation is a question of law for the trial court. Only once the court has
determined that a statement is reasonably susceptible to such a defamatory
interpretation does it become a question for the trier of fact whether or not it
was so understood.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [85
Cal.Rptr.2d 397], internal citations omitted.)
• Private-figure plaintiffs must prove actual malice to recover punitive or presumed
damages for defamation if the matter is one of public concern. They are required
to prove only negligence to recover damages for actual injury to reputation.
(Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79 Cal.Rptr.2d 178,
965 P.2d 696].)
• If the language is not defamatory on its face, there is no distinction between
libel and slander: “In either case, the fact that a statement is not defamatory on
its face requires only that the plaintiff plead and prove the defamatory meaning
and special damages.” (Savage v. Pacific Gas & Electric Co. (1993) 21
Cal.App.4th 434, 447 [26 Cal.Rptr.2d 305].)
• A plaintiff must prove that the defendant was at least negligent in failing to
ascertain the truth or falsity of the statement. (Gertz v. Robert Welch, Inc. (1974)
418 U.S. 323, 345–347 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
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• “The question whether a plaintiff is a public figure is to be determined by the
court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195,
203–204 [35 Cal.Rptr.2d 740], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 721
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.12–340.13 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.20–142.32 (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
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1706. Definition of Statement
The word “statement” in these instructions refers to any form of
communication or representation, including spoken or written words [or]
pictures [or] [insert audible or visual representations].
New September 2003
Directions for Use
This instruction may be necessary in every case, but could be useful in cases where
defamatory material is not written or verbal.
Sources and Authority
• Libel. Civil Code section 45.
• Slander. Civil Code section 46.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.02 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.18
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.21 (Matthew Bender)
California Civil Practice: Torts § 21:2 (Thomson Reuters)
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1707. Fact Versus Opinion
For [name of plaintiff] to recover, [name of defendant]’s statement(s) must
have been [a] statement(s) of fact, not opinion. A statement of fact is one
that can be proved to be true or false. In some circumstances, [name of
plaintiff] may recover if a statement phrased as an opinion implies that a
false statement of fact is true.
In deciding this issue, you should consider whether the average [reader/
listener] would conclude from the language of the statement and its
context that [name of defendant] was implying that a false statement of
fact is true.
New September 2003; Revised June 2013
Directions for Use
Give this instruction only if the court concludes that a statement could reasonably
be construed as implying a false assertion of fact. (See Campanelli v. Regents of
Univ. of Cal. (1996) 44 Cal.App.4th 572, 578 [51 Cal.Rptr.2d 891].)
Sources and Authority
• “ ‘Because [a defamatory] statement must contain a provable falsehood, courts
distinguish between statements of fact and statements of opinion for purposes of
defamation liability. Although statements of fact may be actionable as libel,
statements of opinion are constitutionally protected. [Citation.]’ That does not
mean that statements of opinion enjoy blanket protection. On the contrary, where
an expression of opinion implies a false assertion of fact, the opinion can
constitute actionable defamation. The ‘crucial question of whether challenged
statements convey the requisite factual imputation is ordinarily a question of law
for the court. [Citation.]’ ‘Only once the court has determined that a statement is
reasonably susceptible to such a defamatory interpretation does it become a
question for the trier of fact whether or not it was so understood. [Citations.]’ ”
(Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695–696 [142 Cal.Rptr.3d
40], internal citations omitted.)
• “ ‘In determining whether a statement is libelous we look to what is explicitly
stated as well as what insinuation and implication can be reasonably drawn from
the communication.’ ‘ “ ‘[I]f the defendant juxtaposes [a] series of facts so as to
imply a defamatory connection between them, or [otherwise] creates a
defamatory implication . . . he may be held responsible for the defamatory
implication, . . . even though the particular facts are correct.’ ” ’ The ‘pertinent
question’ is whether a ‘reasonable fact finder’ could conclude that the statements
‘as a whole, or any of its parts, directly made or sufficiently implied a false
assertion of defamatory fact that tended to injure’ plaintiff’s reputation.” (Issa v.
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Applegate (2019) 31 Cal.App.5th 689, 703 [242 Cal.Rptr.3d 809], internal
citations omitted.)
• “In defining libel and slander, Civil Code sections 45 and 46 both refer to a
‘false . . . publication . . . .’ This statutory definition can be meaningfully
applied only to statements that are capable of being proved as false or true.”
(Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 445 [26
Cal.Rptr.2d 305].)
• “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative
expressions[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’
have all been accorded constitutional protection.” (Ferlauto v. Hamsher (1999)
74 Cal.App.4th 1394, 1401 [88 Cal.Rptr.2d 843].)
• “Deprecatory statements regarding the merits of litigation are “nothing more than
‘the predictable opinion’ of one side to the lawsuit” and cannot be the basis for a
defamation claim.” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th
141, 156 [162 Cal.Rptr.3d 831].)
• “If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge
of facts which lead to the conclusion that Jones told an untruth. Even if the
speaker states the facts upon which he bases his opinion, if those facts are either
incorrect or incomplete, or if his assessment of them is erroneous, the statement
may still imply a false assertion of fact.” (Milkovich v. Lorain Journal Co.
(1990) 497 U.S. 1, 18 [110 S.Ct. 2695, 111 L.Ed.2d 1].)
• “[W]hen a communication identifies non-defamatory facts underlying an opinion,
or the recipient is otherwise aware of those facts, a negative statement of opinion
is not defamatory. As explained in the Restatement Second of Torts, a ‘pure type
of expression of opinion’ occurs ‘when both parties to the communication know
the facts or assume their existence and the comment is clearly based on those
assumed facts and does not imply the existence of other facts in order to justify
the comment. The assumption of the facts may come about because someone
else has stated them or because they were assumed by both parties as a result of
their notoriety or otherwise.’ Actionable statements of opinion are ‘the mixed
type, [where] an opinion in form or context, is apparently based on facts
regarding the plaintiff or his conduct that have not been stated by the defendant
[but] gives rise to the inference that there are undisclosed facts that justify the
forming of the opinion.’ ” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th
1300, 1314 [206 Cal.Rptr.3d 60], internal citation omitted.)
• “Even if an opinion can be understood as implying facts capable of being proved
true or false, however, it is not actionable if it also discloses the underlying
factual bases for the opinion and those statements are true.” (J-M Manufacturing
Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 100 [201
Cal.Rptr.3d 782].)
• “California courts have developed a ‘totality of the circumstances’ test to
determine whether an alleged defamatory statement is one of fact or of opinion.
First, the language of the statement is examined. For words to be defamatory,
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they must be understood in a defamatory sense. Where the language of the
statement is ‘cautiously phrased in terms of apparency,’ the statement is less
likely to be reasonably understood as a statement of fact rather than opinion.”
(Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 [228
Cal.Rptr. 206, 721 P.2d 87].)
• “The court must put itself in the place of an average reader and decide the
natural and probable effect of the statement.” (Hofmann Co. v. E.I. Du Pont de
Nemors & Co. (1988) 202 Cal.App.3d 390, 398 [248 Cal.Rptr. 384].)
• “[S]ome statements are ambiguous and cannot be characterized as factual or
nonfactual as a matter of law. ‘In these circumstances, it is for the jury to
determine whether an ordinary reader would have understood the article as a
factual assertion . . . .’ ” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608
[284 Cal.Rptr. 244], internal citations omitted.)
• “Use of ‘hyperbolic, informal’ ‘ “crude, [or] ungrammatical” language, satirical
tone, [or] vituperative, “juvenile name-calling” ’ provide support for the
conclusion that offensive comments were nonactionable opinion. Similarly,
overly vague statements, and ‘ “generalized” comments . . . “lack[ing] any
specificity as to the time or place of” alleged conduct may be a “further signal to
the reader there is no factual basis for the accusations.” ’ On the other hand, if a
statement is ‘factually specific,’ ‘earnest’, or ‘serious’ in tone, or the speaker
‘represents himself as “unbiased,” ’ ‘ “having specialized” ’ or ‘ “first-hand
experience,” ’ or ‘ “hav[ing] personally witnessed . . . abhorrent behavior” ’, this
may signal the opposite, rendering the statement actionable.” (ZL Technologies,
Inc. v. Does 1–7 (2017) 13 Cal.App.5th 603, 624 [220 Cal.Rptr.3d 569], internal
citations omitted.)
• “Whether a challenged statement ‘declares or implies a provable false assertion
of fact is a question of law for the court to decide . . . , unless the statement is
susceptible of both an innocent and a libelous meaning, in which case the jury
must decide how the statement was understood.’ ” (Overhill Farms, Inc. v. Lopez
(2010) 190 Cal.App.4th 1248, 1261 [119 Cal.Rptr.3d 127].)
• “We next turn to the broader context of his statements—posting on an Internet
site under an assumed user name. [Defendant] contends Internet fora are
notorious as ‘places where readers expect to see strongly worded opinions rather
than objective facts,’ and that ‘anonymous, or pseudonymous,’ opinions should
be ‘ “discount[ed] . . . accordingly.” ’ However, the mere fact speech is
broadcast across the Internet by an anonymous speaker does not ipso facto make
it nonactionable opinion and immune from defamation law.” (Bently Reserve LP
v. Papaliolios (2013) 218 Cal.App.4th 418, 429 [160 Cal.Rptr.3d 423], internal
citation omitted.)
• “Rather, a defendant’s anonymity, the name of the Internet forum, the nature,
language, tone, and complete content of the remarks all are relevant.” (ZL
Technologies, Inc., supra, 13 Cal.App.5th at p. 625.)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 643–646
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05–45.06 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.16
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.86 (Matthew Bender)
California Civil Practice: Torts §§ 21:20–21:21 (Thomson Reuters)
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1708. Coerced Self-Publication
[Name of plaintiff] claims that [name of defendant] is responsible for [his/
her/nonbinary pronoun] harm even though [name of defendant] did not
communicate the statement(s) to anyone other than [name of plaintiff]. To
succeed, [name of plaintiff] must prove all of the following:
1. That [name of defendant] made the statement(s) to [name of
plaintiff];
2. That [name of plaintiff] was under strong pressure to
communicate [name of defendant]’s statement(s) to another
person; and
3. That when [name of defendant] made the statements,
[he/she/nonbinary pronoun] should have known that [name of
plaintiff] would be under strong pressure to communicate them to
another person.
If [name of plaintiff] has proved all of the above, then you must find that
[name of defendant] was responsible for the communication of the
statement(s).
New September 2003
Sources and Authority
• The general rule is that “[a] plaintiff cannot manufacture a defamation cause of
action by publishing the statements to third persons; the publication must be
done by the defendant.” The exception to the rule occurs “when it [is]
foreseeable that the defendant’s act would result in plaintiff’s publication to a
third person.” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d
1277, 1284 [286 Cal.Rptr. 198].)
• [A] “self-publication of the alleged defamatory statement may be imputed to the
originator of the statement if ‘the person defamed is operating under a strong
compulsion to republish the defamatory statement and the circumstances which
create the strong compulsion are known to the originator of the defamatory
statement at the time he communicates it to the person defamed.’ ” (Davis v.
Consolidated Freightways (1994) 29 Cal.App.4th 354, 373 [34 Cal.Rptr.2d 438],
quoting McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787,
797–798 [168 Cal.Rptr. 89].)
• “This exception has been limited to a narrow class of cases, usually where a
plaintiff is compelled to republish the statements in aid of disproving them.”
(Live Oak Publishing Co., supra, 234 Cal.App.3d at p. 1285.)
• To determine if the coercion exception applies, the test is “whether ‘because of
some necessity he was under to communicate the matter to others, it was
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DEFAMATION CACI No. 1708
reasonably to be anticipated that he would do so.’ ” (Live Oak Publishing Co.,
supra, 234 Cal.App.3d at p. 1285.)
• “[W]hile compelled self-published defamation per se technically eliminates the
need for publication by the defendant to a third party, a plaintiff cannot
manufacture the defamation claim by simply publishing statements to a third
party because the plaintiff must disclose contents of the employer’s statement to
a third party after reading or being informed of the contents. The originator of
the statement is liable for the foreseeable repetition because of the causal link
between the originator and the presumed damage to the plaintiff’s reputation, but
the publication must be foreseeable. The presumed injury is no less damaging
because the plaintiff was compelled to make the statement instead of the
employer making it directly to the third party.” (Tilkey v. Allstate Ins. Co. (2020)
56 Cal.App.5th 521, 542 [270 Cal.Rptr.3d 559], original italics, internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 633, 722
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.22 (Matthew Bender)
California Civil Practice: Torts § 21:15 (Thomson Reuters)
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1709. Retraction: News Publication or Broadcast (Civ. Code,
§ 48a)
Because [name of defendant] is a [[daily/weekly] news
publication/broadcaster], [name of plaintiff] may recover only the
following:
(a) Damages to property, business, trade, profession, or occupation;
and
(b) Damages for money spent as a result of the defamation.
However, this limitation does not apply if [name of plaintiff] proves both
of the following:
1. That [name of plaintiff] demanded a correction of the statement
within 20 days of discovering the statement; and
2. That [name of defendant] did not publish an adequate correction;
2. [or]
2. That [name of defendant]’s correction was not substantially as
conspicuous as the original [publication/broadcast];
2. [or]
2. That [name of defendant]’s correction was not
[published/broadcast] within three weeks of [name of plaintiff]’s
demand.
New September 2003; Revised June 2016, May 2017; Renumbered from CACI No.
1722 November 2017
Directions for Use
The judge should decide whether the demand for a retraction was served in
compliance with the statute. (O’Hara v. Storer Communications, Inc. (1991) 231
Cal.App.3d 1101, 1110 [282 Cal.Rptr. 712].)
The statute is limited to actions “for damages for the publication of a libel in a daily
or weekly news publication, or of a slander by radio broadcast.” (Civ. Code,
§ 48a(a).) However, a “radio broadcast” includes television. (Civ. Code, § 48.5(4)
[the terms “radio,” “radio broadcast,” and “broadcast,” are defined to include both
visual and sound radio broadcasting]; Kalpoe v. Superior Court (2013) 222
Cal.App.4th 206, 210, 166 Cal.Rptr.3d 80].)
Sources and Authority
• Demand for Correction. Civil Code section 48a.
• “Under California law, a newspaper gains immunity from liability for all but
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DEFAMATION CACI No. 1709
‘special damages’ when it prints a retraction satisfying the requirements of
section 48a.” (Pierce v. San Jose Mercury News (1989) 214 Cal.App.3d 1626,
1631 [263 Cal.Rptr. 410]; see also Twin Coast Newspapers, Inc. v. Superior
Court (1989) 208 Cal.App.3d 656, 660–661 [256 Cal.Rptr. 310].)
• “An equivocal or incomplete retraction obviously serves no purpose even if it is
published in ‘substantially as conspicuous a manner . . . as were the statements
claimed to be libelous.’ ” (Weller v. American Broadcasting Companies, Inc.
(1991) 232 Cal.App.3d 991, 1011 [283 Cal.Rptr. 644].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 735–744
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.24 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.53
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.37 (Matthew Bender)
California Civil Practice: Torts §§ 21:55–21:57 (Thomson Reuters)
1710–1719. Reserved for Future Use
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1720. Affirmative Defense—Truth
[Name of defendant] is not responsible for [name of plaintiff]’s harm, if
any, if [name of defendant] proves that [his/her/nonbinary pronoun/its]
statement(s) about [name of plaintiff] [was/were] true. [Name of defendant]
does not have to prove that the statement(s) [was/were] true in every
detail, so long as the statement(s) [was/were] substantially true.
New September 2003; Revised October 2008, May 2017
Directions for Use
This instruction is to be used only in cases involving private plaintiffs on matters of
private concern. In cases involving public figures or matters of public concern, the
burden of proving falsity is on the plaintiff. (Sonoma Media Investments, LLC v.
Superior Court (2019) 34 Cal.App.5th 24, 37 [247 Cal.Rptr.3d 5].)
Sources and Authority
• “Truth, of course, is an absolute defense to any libel action.” (Campanelli v.
Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 581–582 [51 Cal.Rptr.2d
891].)
• “California law permits the defense of substantial truth and would absolve a
defendant even if she cannot ‘justify every word of the alleged defamatory
matter; it is sufficient if the substance of the charge be proved true, irrespective
of slight inaccuracy in the details.’ ‘Minor inaccuracies do not amount to falsity
so long as ‘the substance, the gist, the sting, of the libelous charge be
justified.’ ” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141,
154 [162 Cal.Rptr.3d 831], internal citation omitted.)
• “Put another way, the statement is not considered false unless it ‘would have a
different effect on the mind of the reader from that which the pleaded truth
would have produced.’ ” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240,
1262–1263 [217 Cal.Rptr.3d 234].)
• “In defamation actions generally, factual truth is a defense which it is the
defendant’s burden to prove. [¶] In a defamation action against a newspaper by a
private person suing over statements of public concern, however, the First
Amendment places the burden of proving falsity on the plaintiff. As a matter of
constitutional law, therefore, media statements on matters of public interest,
including statements of opinion which reasonably imply a knowledge of facts,
‘must be provable as false before there can be liability under state defamation
law.’ ” (Eisenberg v. Alameda Newspapers, (1999) 74 Cal.App.4th 1359, 1382
[88 Cal.Rptr.2d 802], original italics, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 655–659, 720
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4 Levy et al., California Torts, Ch. 45, Defamation, § 45.10 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.55
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.39 (Matthew Bender)
1 California Civil Practice: Torts §§ 21:19, 21:52 (Thomson Reuters)
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1721. Affirmative Defense—Consent
[Name of defendant] is not responsible for [name of plaintiff]’s harm, if
any, if [he/she/nonbinary pronoun] proves that [name of plaintiff]
consented, by words or conduct, to [name of defendant]’s communication
of the statement(s) to others. In deciding whether [name of plaintiff]
consented to the communication, you should consider the circumstances
surrounding the words or conduct.
New September 2003; Revised October 2008
Sources and Authority
• Restatement Second of Torts, section 583, provides, in part: “[T]he consent of
another to the publication of defamatory matter concerning him is a complete
defense to his action for defamation.”
• “One of the oldest and most widely recognized defenses to the publication of
defamatory matter is the doctrine of consent, which has been classified as a form
of absolute privilege.” (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 498 [153
Cal.Rptr. 499].)
• “One of the primary purposes of the doctrine of consent in defamation law is to
prevent a party from inviting or inducing indiscretion and thereby laying the
foundation of a lawsuit for his own pecuniary gain.” (Royer, supra, 90
Cal.App.3d at p. 499.)
• This rule applies when the plaintiff asks the defendant to repeat the statement to
others and when the plaintiff himself repeats the statements to others. (Royer,
supra, 90 Cal.App.3d at p. 498 [but see CACI No. 1708, Coerced Self-
Publication].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 694
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.68
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.54 (Matthew Bender)
California Civil Practice: Torts § 21:28 (Thomson Reuters)
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1722. Affirmative Defense—Statute of Limitations—Defamation
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [he/she/nonbinary pronoun/it] first
communicated the alleged defamatory statement to a person other than
[name of plaintiff] before [insert date one year before date of filing]. [For
statements made in a publication, the claimed harm occurred when the
publication was first generally distributed to the public.]
[If, however, [name of plaintiff] proves that on [insert date one year before
date of filing] [he/she/nonbinary pronoun/it] had not discovered the facts
constituting the defamation, and with reasonable diligence could not
have discovered those facts, the lawsuit was filed on time.]
New April 2009; Renumbered from CACI No. 1724 November 2017
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
filed within the applicable one-year limitation period for defamation. (See Code Civ.
Proc., § 340(c).)
If the defamation was published in a publication such as a book, newspaper, or
magazine, include the last sentence of the first paragraph, and do not include the
second paragraph The delayed-discovery rule does not apply to these statements.
(Shively v. Bozanich (2003) 31 Cal.4th 1230, 1250–1251 [7 Cal.Rptr.3d 576, 80 P.3d
676].) Otherwise, include the second paragraph if the plaintiff alleges that the
delayed-discovery rule avoids the limitation defense.
The plaintiff bears the burden of pleading and proving delayed discovery. (See
McKelvey v. Boeing North Am. Inc. (1999) 74 Cal.App.4th 151, 160 [86 Cal.Rptr.2d
645].) See also the Sources and Authority to CACI No. 455, Statute of
Limitations—Delayed Discovery.
The delayed discovery rule can apply to matters published in an inherently secretive
manner. (Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883, 894
[70 Cal.Rptr.3d 178, 173 P.3d 1004]. Modify the instruction if inherent secrecy is at
issue and depends on disputed facts. It is not clear whether the plaintiff has the
burden of proving inherent secrecy or the defendant has the burden of proving its
absence.
Sources and Authority
• One-Year Statute of Limitations. Code of Civil Procedure section 340.
• “In a claim for defamation, as with other tort claims, the period of limitations
commences when the cause of action accrues. . . . [A] cause of action for
defamation accrues at the time the defamatory statement is ‘published’ (using the
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term ‘published’ in its technical sense). [¶] [I]n defamation actions the general
rule is that publication occurs when the defendant communicates the defamatory
statement to a person other than the person being defamed. As also has been
noted, with respect to books and newspapers, publication occurs (and the cause
of action accrues) when the book or newspaper is first generally distributed to
the public.” (Shively, supra, 31 Cal.4th at pp. 1246–1247, internal citations
omitted.)
• “This court and other courts in California and elsewhere have recognized that in
certain circumstances it may be appropriate to apply the discovery rule to delay
the accrual of a cause of action for defamation or to impose an equitable
estoppel against defendants who assert the defense after the limitations period
has expired.” (Shively, supra, 31 Cal.4th at pp. 1248–1249.)
• “[A]pplication of the discovery rule to statements contained in books and
newspapers would undermine the single-publication rule and reinstate the
indefinite tolling of the statute of limitations intended to be cured by the
adoption of the single-publication rule. If we were to recognize delayed accrual
of a cause of action based upon the allegedly defamatory statement contained in
the book . . . on the basis that plaintiff did not happen to come across the
statement until some time after the book was first generally distributed to the
public, we would be adopting a rule subjecting publishers and authors to
potential liability during the entire period in which a single copy of the book or
newspaper might exist and fall into the hands of the subject of a defamatory
remark. Inquiry into whether delay in discovering the publication was reasonable
has not been permitted for publications governed by the single-publication rule.
Nor is adoption of the rule proposed by plaintiff appropriate simply because the
originator of a privately communicated defamatory statement may, together with
the author and the publisher of a book, be liable for the defamation contained in
the book. Under the rationale for the single-publication rule, the originator, who
is jointly responsible along with the author and the publisher, should not be
liable for millions of causes of action for a single edition of the book. Similarly,
consistent with that rationale, the originator, like the author or the publisher,
should not be subject to suit many years after the edition is published.” (Shively,
supra, 31 Cal.4th at p. 1251.)
• “The single-publication rule as described in our opinion in Shively and as
codified in Civil Code section 3425.3 applies without limitation to all
publications.” (Hebrew Academy of San Francisco, supra, 42 Cal.4th at p. 893.)
• “[T]he single-publication rule applies not only to books and newspapers that are
published with general circulation (as we addressed in Shively), but also to
publications like that in the present case that are given only limited circulation
and, thus, are not generally distributed to the public. Further, the discovery rule,
which we held in Shively does not apply when a book or newspaper is generally
distributed to the public, does not apply even when, as in the present case, a
publication is given only limited distribution.” (Hebrew Academy of San
Francisco, supra, 42 Cal.4th at p. 890.)
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• “ ‘. . . [C]ourts uniformly have rejected the application of the discovery rule to
libels published in books, magazines, and newspapers,’ stating that ‘although
application of the discovery rule may be justified when the defamation was
communicated in confidence, that is, “in an inherently secretive manner,” the
justification does not apply when the defamation occurred by means of a book,
magazine, or newspaper that was distributed to the public. [Citation.]’ ” (Hebrew
Academy of San Francisco, supra, 42 Cal.4th at p. 894, original italics, internal
citations omitted.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury, Ch. 5-B, Filing Suit: Time
Bars and Pleading Concerns, ¶ 5:176.10 (The Rutter Group)
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.21 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§ 340.290 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.56 (Matthew Bender)
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1723. Common Interest Privilege—Malice (Civ. Code, § 47(c))
[Name of plaintiff] cannot recover damages from [name of defendant], even
if the statement(s) [was/were] false, unless [name of plaintiff] also proves
either:
1. That in making the statement(s), [name of defendant] acted with
hatred or ill will toward [him/her/nonbinary pronoun], showing
[name of defendant]’s willingness to vex, annoy, or injure [him/her/
nonbinary pronoun]; or
2. That [name of defendant] had no reasonable grounds for believing
the truth of the statement(s).
New September 2003; Revised June 2014
Directions for Use
This instruction involves what is referred to as the “common interest” privilege of
Civil Code section 47(c). This statute grants a privilege against defamation to
communications made without malice on subjects of mutual interest. The defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove malice. (Lundquist v. Reusser (1994) 7
Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d 1279].)
Sources and Authority
• Common-Interest Privilege: Civil Code section 47(c).
• Malice Not Inferred: Civil Code section 48.
• “So, defendants contended, any publication was protected by the common
interest privilege in Civil Code section 47, subdivision (c), which extends a
privilege to statements made ‘without malice, to a person interested therein, (1)
by one who is also interested, or (2) by one who stands in such a relation to the
person interested as to afford a reasonable ground for supposing the motive for
the communication to be innocent, or (3) who is requested by the person
interested to give the information.’ ” (Barker v. Fox & Associates (2015) 240
Cal.App.4th 333, 353 [192 Cal.Rptr.3d 511].)
• “Civil Code section 47 ‘extends a conditional privilege against defamation to
statements made without malice on subjects of mutual interests. [Citation.] This
privilege is “recognized where the communicator and the recipient have a
common interest and the communication is of a kind reasonably calculated to
protect or further that interest.” [Citation.] The “interest” must be something
other than mere general or idle curiosity, such as where the parties to the
communication share a contractual, business or similar relationship or the
defendant is protecting his own pecuniary interest. [Citation.] Rather, it is
restricted to ‘proprietary or narrow private interests.” [Citations.]’ ” (Hui v.
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Sturbaum (2014) 222 Cal.App.4th 1109, 1118–1119 [166 Cal.Rptr.3d 569].)
• “This definition is not exclusive, however, and the cases have taken an ‘eclectic
approach’ toward interpreting the statute.” (Klem v. Access Ins. Co. (2017) 17
Cal.App.5th 595, 617 [225 Cal.Rptr.3d 711].)
• “Communications made in a commercial setting relating to the conduct of an
employee have been held to fall squarely within the qualified privilege for
communications to interested persons.” (Cornell v. Berkeley Tennis Club (2017)
18 Cal.App.5th 908, 949 [227 Cal.Rptr.3d 286].)
• “ ‘Ordinarily, the common interest of the members of a church in church matters
is sufficient to give rise to a qualified privilege to communications between
members on subjects relating to the church’s interest.’ This reasoning applies by
analogy to communications between parents of parochial school children and
church authorities overseeing the school on subjects relating to the school.”
(Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1177 [252 Cal.Rptr.3d 578].)
• “For the purposes of section 47’s qualified privilege, ‘malice’ means that the
defendant (1) ‘ “was motivated by hatred or ill will towards the plaintiff,” ’ or
(2) ‘ “lacked reasonable grounds for [its] belief in the truth of the publication
and therefore acted in reckless disregard of the plaintiff’s rights.” ’ ” (Schep v.
Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1337 [220 Cal.Rptr.3d 408].)
• “The malice required to defeat the common interest privilege is actual malice.”
(Hicks, supra, 39 Cal.App.5th at p. 1178.)
• “[M]alice [as used in Civil Code section 47(c)] has been defined as ‘a state of
mind arising from hatred or ill will, evidencing a willingness to vex, annoy or
injure another person.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711,
723 [257 Cal.Rptr. 708, 771 P.2d 406], internal citation omitted.)
• “[M]alice focuses upon the defendant’s state of mind, not his [or her] conduct.”
(Cornell, supra, 18 Cal.App.5th at p. 951.)
• “[M]alice may not be inferred from the mere fact of the communication.”
(Barker, supra, 240 Cal.App.4th at p. 354.)
• “For purposes of establishing a triable issue of malice, ‘the issue is not the truth
or falsity of the statements but whether they were made recklessly without
reasonable belief in their truth.’ A triable issue of malice would exist if
[defendant] made a statement in reckless disregard of Employee’s rights that
[defendant] either did not believe to be true (i.e., he actually knew better) or
unreasonably believed to be true (i.e., he should have known better). In either
case, a fact finder would have to ascertain what [defendant] subjectively knew
and believed about the topic at the time he spoke.” (McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal.App.4th 1510, 1540 [152 Cal.Rptr.3d 154],
internal citation omitted.)
• “[M]aliciousness cannot be derived from negligence. Malice entails more than
sloppiness or, as in this case, an easily explained typo.” (Bierbower v. FHP, Inc.
(1999) 70 Cal.App.4th 1, 9 [82 Cal.Rptr.2d 393].)
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• “[I]f malice is shown, the privilege is not merely overcome; it never arises in the
first instance. . . . [T]he characterization of the privilege as qualified or
conditional is incorrect to the extent that it suggests the privilege is defeasible.”
(Brown, supra, 48 Cal.3d at p. 723, fn. 7.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 92, 655, 690–704
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Employment Torts And Related Claims—Defamation, ¶ 5:471 et seq. (The Rutter
Group)
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.12 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.66
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.53 (Matthew Bender)
California Civil Practice: Torts §§ 21:40–21:41 (Thomson Reuters)
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1724. Fair and True Reporting Privilege (Civ. Code, § 47(d))
[Name of plaintiff] cannot recover damages from [name of defendant] if
[name of defendant] proves all of the following:
1. That [name of defendant]’s statement(s) [was/were] [reported in/
communicated to] [specify public journal in which statement(s)
appeared];
2. The [report/communication] was of [select the applicable statutory
context]
2. [a judicial, legislative, or other public official proceeding;]
2. [something said in the course of a judicial, legislative, or other
public official proceeding;]
2. [a verified charge or complaint made by any person to a public
official on which a warrant was issued;]
2. and
3. The [report/communication] was both fair and true.
New November 2017
Directions for Use
This instruction involves what is referred to as the “fair and true reporting privilege”
of Civil Code section 47(d). This statute grants an absolute privilege against
defamation for a fair and true report in, or a communication to, a public journal, of
a judicial, legislative, or other public official proceeding; or for anything said in the
course of the proceeding; or for a verified charge or complaint made by any person
to a public official, on which complaint a warrant has been issued.
An element of defamation is that the alleged defamatory statement is “unprivileged.”
(Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118 [166 Cal.Rptr.3d 569].) That
would seem to suggest that the plaintiff must prove that a privilege does not apply.
Nevertheless, courts have held that it is the defendant’s burden to prove that the
statement is within the scope of the privilege, including that it was fair and true.
(Burrill v. Nair (2013) 217 Cal.App.4th 357, 396 [158 Cal.Rptr.3d 332], disapproved
on another ground in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11 [205
Cal.Rptr.3d 475, 376 P.3d 604].)
Sources and Authority
• Fair and True Reporting Privilege. Civil Code section 47(d).
• “Under section 47, subdivision (d), the fair and true reporting privilege protects
a ‘fair and true report in, or a communication to, a public journal, of . . . a
judicial . . . proceeding, or . . . anything said in the course thereof.’ It too is an
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absolute privilege—that is, it applies regardless of the defendants’ motive for
making the report—and forecloses a plaintiff from showing a probability of
prevailing on the merits.” (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768,
787 [214 Cal.Rptr.3d 358].)
• “The purpose of this privilege is to ensure the public interest is served by the
dissemination of information about events occurring in official proceedings and
with respect to verified charges or complaints resulting in the issuance of a
warrant.” (Burrill, supra, 217 Cal.App.4th at p. 397.)
• “Prior to 1997 subdivision (d) applied only to a fair and true report in a public
journal. Senate Bill No. 1540 (1995–1996 Reg. Sess.), sponsored by the
California Newspapers Publishers Association, amended the provision, effective
January 1, 1997, to add ‘or a communication to,’ so the privilege would extend,
as it does now, to both a fair and true report in and a communication to a public
journal concerning judicial, legislative or other public proceedings.” (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 97
[201 Cal.Rptr.3d 782], original italics.)
• “The privilege applies if the substance of the publication or broadcast captures
the gist or sting of the statements made in the official proceedings.” (Burrill,
supra, 217 Cal.App.4th at p. 398.)
• “The defendant is entitled to a certain degree of ‘ “flexibility/literary license” ’ in
this regard, such that the privilege will apply even if there is a slight inaccuracy
in details—one that does not lead the reader to be affected differently by the
report than he or she would be by the actual truth.” (Argentieri, supra, 8
Cal.App.5th at pp. 787–788.)
• “[Plaintiff] further contends it was for a jury, not the trial court, to decide
whether [defendant]’s Statement was a fair and true report. Courts have stated
that the fairness and truth of a report is an issue of fact for the jury, if there is
any material factual dispute on the issue.” (Argentieri, supra, 8 Cal.App.5th at p.
791, original italics.)
• “ ‘[W]hether or not a privileged occasion exists is for the court to decide, while
the effect produced by the particular words used in an article [or broadcast] and
the fairness of the report is a question of fact for the jury [citation].’ ‘[T]he
publication is to be measured by the natural and probable effect it would have
on the mind of the average reader [citations]. The standard of interpretation to be
used in testing alleged defamatory language is how those in the community
where the matter was published would reasonably understand it [citation]. In
determining whether the report was fair and true, the article [or broadcast] must
be regarded from the standpoint of persons whose function is to give the public
a fair report of what has taken place. The report is not to be judged by the
standard of accuracy that would be adopted if it were the report of a professional
law reporter or a trained lawyer [citation].’ ” (Burrill, supra, 217 Cal.App.4th at
p. 398, internal citation omitted.)
• “At the very least, the difference between these accusations presents a question
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of fact with respect to whether the average listener would understand the
broadcast to capture the gist or sting of the citizen’s complaint, or whether the
charge made in the broadcast would affect the listener differently than that made
in the citizen’s complaint.” (Burrill, supra, 217 Cal.App.4th at p. 398.)
• “In evaluating the effect a publication has on the average reader, the challenged
language must be viewed in context to determine whether, applying a ‘totality of
the circumstances’ test, it is reasonably susceptible to the defamatory meaning
alleged by the plaintiff: ‘ “[A] defamatory meaning must be found, if at all, in a
reading of the publication as a whole.” [Citation.] “This is a rule of reason.
Defamation actions cannot be based on snippets taken out of context.” ’ (J-M
Manufacturing Co., Inc., supra, 247 Cal.App.4th at p. 97, internal citations
omitted.)
• “[Defendant] bears the burden of proving the privilege applies.” (Burrill, supra,
217 Cal.App.4th at p. 396.)
• “ ‘A report of a judicial proceeding implies that some official action has been
taken by the officer or body whose proceedings are thus reported. The
publication, therefore, of the contents of preliminary pleadings such as a
complaint or petition, before any judicial action has been taken is not within the
rule stated in this Section. An important reason for this position has been to
prevent implementation of a scheme to file a complaint for the purpose of
establishing a privilege to publicize its content and then dropping the action.
(See Comment c). It is not necessary, however, that a final disposition be made
of the matter in question; it is enough that some judicial action has been taken
so that, in the normal progress of the proceeding, a final decision will be
rendered.’ ” (Burrill, supra, at p. 397, quoting Restatement 2d of Torts, § 611,
comment e.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 691
4 Levy et al., California Torts, Ch. 45, Intentional Torts and Other Theories of
Recovery, § 45.11 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.64
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander, § 142.51 (Matthew
Bender)
1725–1729. Reserved for Future Use
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1730. Slander of Title—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by [making a statement/taking an action]
that cast doubts about [name of plaintiff]’s ownership of [describe real or
personal property, e.g., the residence located at [address]]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [made a statement/[specify other act, e.g.,
recorded a deed] that cast doubts about [name of plaintiff]’s
ownership of the property;
2. That the [statement was made to a person other than [name of
plaintiff]/[specify other publication, e.g., deed became a public
record]];
3. That [the statement was untrue and] [name of plaintiff] did in fact
own the property;
4. That [name of defendant] [knew that/acted with reckless disregard
of the truth or falsity as to whether] [name of plaintiff] owned the
property;
5. That [name of defendant] knew or should have recognized that
someone else might act in reliance on the [statement/e.g., deed],
causing [name of plaintiff] financial loss;
6. That [name of plaintiff] did in fact suffer immediate and direct
financial harm [because someone else acted in reliance on the
[statement/e.g., deed]/ [or] by incurring legal expenses necessary
to remove the doubt cast by the [statement/e.g., deed] and to clear
title];
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2012; Revised May 2018, November 2018
Directions for Use
Slander of title may be either by words or an act that clouds title to the property.
(See, e.g., Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011)
200 Cal.App.4th 656, 661 [132 Cal.Rptr.3d 781] [filing of lis pendens].) If the
slander is by means other than words, specify the means in element 1. If the slander
is by words, select the first option in element 2.
An additional element of a slander of title claim is that the alleged slanderous
statement was without privilege or justification. (Schep v. Capital One, N.A. (2017)
12 Cal.App.5th 1331, 1336 [220 Cal.Rptr.3d 408].) If this element presents an issue
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for the jury, an instruction on it must be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is alleged, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required.
Beyond the privilege of Civil Code section 47(c), it would appear that actual malice
in the sense of ill will toward and intent to harm the plaintiff is not required and
that malice may be implied in law from absence of privilege (see Gudger v. Manton
(1943) 21 Cal.2d 537, 543–544 [134 P.2d 217], disapproved on other grounds in
Albertson v. Raboff (1956) 46 Cal.2d 375, 381 [295 P.2d 405]) or from the attempt
to secure property to which the defendant had no legitimate claim (see Spencer v.
Harmon Enterprises, Inc. (1965) 234 Cal.App.2d 614, 623 [44 Cal.Rptr. 683]) or
from accusations made without foundation (element 4). (See Contra Costa County
Title Co. v. Waloff (1960) 184 Cal.App.2d 59, 67 [7 Cal.Rptr. 358].)
Sources and Authority
• “[S]lander of title is not a form of deceit. It is a form of the separate common
law tort of disparagement, also sometimes referred to as injurious falsehood.”
(Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1253
[214 Cal.Rptr.3d 628].)
• “The Supreme Court has recently determined a viable disparagement claim,
which necessarily includes a slander of title claim, requires the existence of a
‘misleading statement that (1) specifically refers to the plaintiff’s product or
business and (2) clearly derogates that product or business. Each requirement
must be satisfied by express mention or by clear implication.’ ” (Finch
Aerospace Corp., supra, 8 Cal.App.5th at p. 1253.)
• “ ‘Slander of title is effected by one who without privilege publishes untrue and
disparaging statements with respect to the property of another under such
circumstances as would lead a reasonable person to foresee that a prospective
purchaser or lessee thereof might abandon his intentions. It is an invasion of the
interest in the vendibility of property. In order to commit the tort actual malice
or ill will is unnecessary. Damages usually consist of loss of a prospective
purchaser. To be disparaging a statement need not be a complete denial of title
in others, but may be any unfounded claim of an interest in the property which
throws doubt upon its ownership.’ ‘However, it is not necessary to show that a
particular pending deal was hampered or prevented, since recovery may be had
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for the depreciation in the market value of the property.’ ” (M.F. Farming, Co. v.
Couch Distributing Co. (2012) 207 Cal.App.4th 180, 198–199 [143 Cal.Rptr.3d
160], internal citations omitted.)
• “Slander of title ‘occurs when a person, without a privilege to do so, publishes a
false statement that disparages title to property and causes pecuniary loss.
[Citation.]’ The false statement must be ‘ “maliciously made with the intent to
defame.” ’ ” (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651 [142
Cal.Rptr.3d 34], internal citations omitted.)
• “One who publishes a false statement harmful to the interests of another is
subject to liability for pecuniary loss resulting to the other if (a) he intends for
publication of the statement to result in harm to interests of the other having a
pecuniary value, or either recognizes or should recognize that it is likely to do
so, and (b) he knows that the statement is false or acts in reckless disregard of
its truth or falsity.” (Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 [206
Cal.Rptr. 259], quoting Rest. 2d Torts § 623A.)
• “One who, without a privilege to do so, publishes matter which is untrue and
disparaging to another’s property in land, chattels or intangible things under such
circumstances as would lead a reasonable man to foresee that the conduct of a
third person as purchaser or lessee thereof might be determined thereby is liable
for pecuniary loss resulting to the other from the impairment of vendibility thus
caused.” (Chrysler Credit Corp. v. Ostly (1974) 42 Cal.App.3d 663, 674 [117
Cal.Rptr. 167], quoting Rest. Torts, § 624 [motor vehicle case].)
• “Sections 623A, 624 and 633 of the Restatement Second of Torts further refine
the definition so it is clear included elements of the tort are that there must be
(a) a publication, (b) which is without privilege or justification and thus with
malice, express or implied, and (c) is false, either knowingly so or made without
regard to its truthfulness, and (d) causes direct and immediate pecuniary loss.”
(Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263–264 [169 Cal.Rptr. 678],
footnote and internal citations omitted.)
• “In an action for wrongful disparagement of title, a plaintiff may recover (1) the
expense of legal proceedings necessary to remove the doubt cast by the
disparagement, (2) financial loss resulting from the impairment of vendibility of
the property, and (3) general damages for the time and inconvenience suffered by
plaintiff in removing the doubt cast upon his property.” (Klem v. Access Ins. Co.
(2017) 17 Cal.App.5th 595, 624 [225 Cal.Rptr.3d 711].)
• “While it is true that an essential element of a cause of action for slander of title
is that the plaintiff suffered pecuniary damage as a result of the disparagement of
title, the law is equally clear that the expense of legal proceedings necessary to
remove the doubt cast by the disparagement and to clear title is a recognized
form of pecuniary damage in such cases.” (Sumner Hill Homeowners’ Assn., Inc.
v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1032 [141 Cal.Rptr.3d
109], internal citations omitted; see Rest.2d Torts, § 633, subd. (1)(b).)
• “Although attorney fees and litigation expenses reasonably necessary to remove
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the memorandum from the record were recoverable, those incurred merely in
pursuit of damages against . . . defendants were not.” (Seeley v. Seymour (1987)
190 Cal.App.3d 844, 865–866 [237 Cal.Rptr. 282].)
• “Although the gravamen of an action for disparagement of title is different from
that of an action for personal defamation, substantially the same privileges are
recognized in relation to both torts in the absence of statute. Questions of
privilege relating to both torts are now resolved in the light of section 47 of the
Civil Code.” (Albertson, supra, 46 Cal.2d at pp. 378–379, internal citations
omitted.)
• “[The privilege of Civil Code section 47(c)] is lost, however, where the person
making the communication acts with malice. Malice exists where the person
making the statement acts out of hatred or ill will, or has no reasonable grounds
for believing the statement to be true, or makes the statement for any reason
other than to protect the interest for the protection of which the privilege is
given.” (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 285 [175 Cal.Rptr. 767],
disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219
[266 Cal.Rptr. 638, 786 P.2d 365].)
• “The existence of privilege is a defense to an action for defamation. Therefore,
the burden is on the defendant to plead and prove the challenged publication was
made under circumstances that conferred the privilege.” (Palmer v. Zaklama
(2003) 109 Cal.App.4th 1367, 1380 [1 Cal.Rptr.3d 116] [applying rule to slander
of title].)
• “The principal issue presented in this case is whether the trial court properly
instructed the jury that, in the jury’s determination whether the common-interest
privilege set forth in section 47(c) has been established, defendants bore the
burden of proving not only that the allegedly defamatory statement was made
upon an occasion that falls within the common-interest privilege, but also that
the statement was made without malice. Defendants contend that, in California
and throughout the United States, the general rule is that, although a defendant
bears the initial burden of establishing that the allegedly defamatory statement
was made upon an occasion falling within the purview of the common-interest
privilege, once it is established that the statement was made upon such a
privileged occasion, the plaintiff may recover damages for defamation only if the
plaintiff successfully meets the burden of proving that the statement was made
with malice. As stated above, the Court of Appeal agreed with defendants on this
point. Although, as we shall explain, there are a few (primarily early) California
decisions that state a contrary rule, both the legislative history of section 47(c)
and the overwhelming majority of recent California decisions support the Court
of Appeal’s conclusion. Accordingly, we agree with the Court of Appeal insofar
as it concluded that the trial court erred in instructing the jury that defendants
bore the burden of proof upon the issue of malice, for purposes of section
47(c).” (Lundquist, supra, 7 Cal.4th at pp. 1202–1203, internal citations omitted.)
• “Civil Code section 47(b)(4) clearly describes the conditions for application of
the [litigation] privilege to a recorded lis pendens as follows: ‘A recorded lis
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pendens is not a privileged publication unless it identifies an action previously
filed with a court of competent jurisdiction which affects the title or right of
possession of real property, as authorized or required by law.’ Those conditions
are (1) the lis pendens must identify a previously filed action and (2) the
previously filed action must be one that affects title or right of possession of real
property. We decline to add a third requirement that there must also be
evidentiary merit.” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 476
[149 Cal.Rptr.3d 716], internal citation omitted.)
• “[T]he property owner may recover for the impairment of the vendibility ‘of his
property’ without showing that the loss was caused by prevention of a particular
sale. ‘The most usual manner in which a third person’s reliance upon disparaging
matter causes pecuniary loss is by preventing a sale to a particular
purchaser. . . . The disparaging matter may, if widely disseminated, cause
pecuniary loss by depriving its possessor of a market in which, but for the
disparagement, his land or other thing might with reasonable certainty have
found a purchaser.’ ” (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 424
[96 Cal.Rptr. 902].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts §§ 747, 1886
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.80 et seq. (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.90
(Matthew Bender)
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1731. Trade Libel—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] by making a statement that disparaged
[name of plaintiff]’s [specify product]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] made a statement that [would be clearly
or necessarily understood to have] disparaged the quality of
[name of plaintiff]’s [product/service];
2. That the statement was made to a person other than [name of
plaintiff];
3. That the statement was untrue;
4. That [name of defendant] [knew that the statement was untrue/
acted with reckless disregard of the truth or falsity of the
statement];
5. That [name of defendant] knew or should have recognized that
someone else might act in reliance on the statement, causing
[name of plaintiff] financial loss;
6. That [name of plaintiff] suffered direct financial harm because
someone else acted in reliance on the statement; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2013; Revised June 2015, May 2018
Directions for Use
The tort of trade libel is a form of injurious falsehood similar to slander of title.
(See Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 548
[216 Cal.Rptr. 252]; Erlich v. Etner (1964) 224 Cal.App.2d 69, 74 [36 Cal.Rptr.
256].) The tort has not often reached the attention of California’s appellate courts
(see Polygram Records, Inc., supra, 170 Cal.App.3d at p. 548), perhaps because of
the difficulty in proving damages. (See Erlich, supra, 224 Cal.App.2d at pp. 73–74.)
Include the optional language in element 1 if the plaintiff alleges that disparagement
may be reasonably implied from the defendant’s words. Disparagement by
reasonable implication requires more than a statement that may conceivably or
plausibly be construed as derogatory. A “reasonable implication” means a clear or
necessary inference. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59
Cal.4th 277, 295 [172 Cal.Rptr.3d 653, 326 P.3d 253].)
Elements 4 and 5 are supported by section 623A of the Restatement 2d of Torts,
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which has been accepted in California. (See Melaleuca, Inc. v. Clark (1998) 66
Cal.App.4th 1344, 1360–1361 [78 Cal.Rptr.2d 627].) There is some authority,
however, for the proposition that no intent or reckless disregard is required (element
4) if the statement was understood in its disparaging sense and if the understanding
is a reasonable construction of the language used or the acts done by the publisher.
(See Nichols v. Great Am. Ins. Cos. (1985) 169 Cal.App.3d 766, 773 [215 Cal.Rptr.
416].)
The privileges of Civil Code section 47 almost certainly apply to actions for trade
libel. (See Albertson v. Raboff (1956) 46 Cal.2d 375, 378–379 [295 P.2d 405]
[slander-of-title case]; 117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 651 [145
Cal.Rptr. 778] [publication by filing small claims suit is absolutely privileged].) If a
privilege is claimed, additional instructions will be necessary to frame the privilege.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required.
Limitations on liability arising from the First Amendment apply. (Hofmann Co. v. E.
I. du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 397 [248 Cal.Rptr. 384];
see CACI Nos. 1700–1703, instructions on public figures and matters of public
concern.) See also CACI No. 1707, Fact Versus Opinion.
Sources and Authority
• “Trade libel is the publication of matter disparaging the quality of another’s
property, which the publisher should recognize is likely to cause pecuniary loss
to the owner. [Citation.] The tort encompasses ‘all false statements concerning
the quality of services or product of a business which are intended to cause that
business financial harm and in fact do so.’ [Citation.] [¶] To constitute trade
libel, a statement must be false.” (City of Costa Mesa v. D’Alessio Investments,
LLC (2013) 214 Cal.App.4th 358, 376 [154 Cal.Rptr.3d 698].)
• “To constitute trade libel the statement must be made with actual malice, that is,
with knowledge it was false or with reckless disregard for whether it was true or
false.” (J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247
Cal.App.4th 87, 97 [201 Cal.Rptr.3d 782].)
• “The distinction between libel and trade libel is that the former concerns the
person or reputation of plaintiff and the latter relates to his goods.” (Shores v.
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Chip Steak Co. (1955) 130 Cal.App.2d 627, 630 [279 P.2d 595].)
• “[A]n action for ‘slander of title’ . . . is a form of action somewhat related to
trade libel . . . .” (Erlich, supra, 224 Cal.App.2d at p. 74.)
• “Confusion surrounds the tort of ‘commercial disparagement’ because not only is
its content blurred and uncertain, so also is its very name. The tort has received
various labels, such as ‘commercial disparagement,’ ‘injurious falsehood,’
‘product disparagement,’ ‘trade libel,’ ‘disparagement of property,’ and ‘slander
of goods.’ These shifting names have led counsel and the courts into confusion,
thinking that they were dealing with different bodies of law. In fact, all these
labels denominate the same basic legal claim.” (Hartford Casualty Ins. Co.,
supra, 59 Cal.4th at p. 289.)
• “The protection the common law provides statements which disparage products
as opposed to reputations is set forth in the Restatement Second of Torts sections
623A and 626. Section 623A provides: ‘One who publishes a false statement
harmful to the interests of another is subject to liability for pecuniary loss
resulting to the other if [P] (a) he intends for publication of the statement to
result in harm to interests of the other having a pecuniary value, or either
recognizes or should recognize that it is likely to do so, and [P](b) he knows that
the statement is false or acts in reckless disregard of its truth or falsity.’ [¶]
Section 626 of Restatement Second of Torts in turn states: ‘The rules on liability
for the publication of an injurious falsehood stated in § 623A apply to the
publication of matter disparaging the quality of another’s land, chattels or
intangible things, that the publisher should recognize as likely to result in
pecuniary loss to the other through the conduct of a third person in respect to
the other’s interests in the property.’ ” (Melaleuca, Inc., supra, 66 Cal.App.4th at
pp. 1360–1361, original italics.)
• “According to section 629 of the Restatement Second of Torts (1977), ‘[a]
statement is disparaging if it is understood to cast doubt upon the quality of
another’s land, chattels or intangible things, or upon the existence or extent of
his property in them, and [¶] (a) the publisher intends the statement to cast the
doubt, or [¶] (b) the recipient’s understanding of it as casting the doubt was
reasonable.’ ” (Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 288.)
• “What distinguishes a claim of disparagement is that an injurious falsehood has
been directed specifically at the plaintiff’s business or product, derogating that
business or product and thereby causing that plaintiff special damages.”
(Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 294, original italics.)
• “The Restatement [2d Torts] view is that, like slander of title, what is commonly
called ‘trade libel’ is a particular form of the tort of injurious falsehood and need
not be in writing.” (Polygram Records, Inc., supra, 170 Cal.App.3d at p. 548.)
• “While . . . general damages are presumed in a libel of a businessman, this is
not so in action for trade libel. Dean Prosser has discussed the problems in such
actions as follows: ‘Injurious falsehood, or disparagement, then, may consist of
the publication of matter derogatory to the plaintiff’s title to his property, or its
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quality, or to his business in general, . . . The cause of action founded upon it
resembles that for defamation, but differs from it materially in the greater burden
of proof resting on the plaintiff, and the necessity for special damage in all
cases. . . . [The] plaintiff must prove in all cases that the publication has played
a material and substantial part in inducing others not to deal with him, and that
as a result he has suffered special damages. . . . Usually, . . . the damages
claimed have consisted of loss of prospective contracts with the plaintiff’s
customers. Here the remedy has been so hedged about with limitations that its
usefulness to the plaintiff has been seriously impaired. It is nearly always held
that it is not enough to show a general decline in his business resulting from the
falsehood, even where no other cause for it is apparent, and that it is only the
loss of specific sales that can be recovered. This means, in the usual case, that
the plaintiff must identify the particular purchasers who have refrained from
dealing with him, and specify the transactions of which he claims to have been
deprived.’ ” (Erlich, supra, 224 Cal.App. 2d at pp. 73–74.)
• “Because the gravamen of the complaint is the allegation that respondents made
false statements of fact that injured appellant’s business, the ‘limitations that
define the First Amendment’s zone of protection’ are applicable. ‘[It] is
immaterial for First Amendment purposes whether the statement in question
relates to the plaintiff himself or merely to his property . . . .’ ” (Hofmann Co.,
supra, 202 Cal.App.3d at p. 397, internal citation omitted.)
• “If respondents’ statements about appellant are opinions, the cause of action for
trade libel must of course fail. ‘Under the First Amendment there is no such
thing as a false idea. However pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on the competition
of other ideas. But there is no constitutional value in false statements of fact.’
Statements of fact can be true or false, but an opinion—‘a view, judgment, or
appraisal formed in the mind . . . [a] belief stronger than impression and less
strong than positive knowledge’—is the result of a mental process and not
capable of proof in terms of truth or falsity.” (Hofmann Co., supra, 202
Cal.App.3d at p. 397, footnote and internal citation omitted.)
• “[I]t is not absolutely necessary that the disparaging publication be intentionally
designed to injure. If the statement was understood in its disparaging sense and
if the understanding is a reasonable construction of the language used or the acts
done by the publisher, it is not material that the publisher did not intend the
disparaging statement to be so understood.” (Nichols, supra, 169 Cal.App.3d at
p. 773.)
• “Disparagement by ‘reasonable implication’ requires more than a statement that
may conceivably or plausibly be construed as derogatory to a specific product or
business. A ‘reasonable implication’ in this context means a clear or necessary
inference.” (Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 295, internal
citations omitted.)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 747–750
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.70 et seq. (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§ 340.103 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 9, Commercial Defamation, 9.04
1732–1799. Reserved for Future Use
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VF-1700. Defamation per se (Public Officer/Figure and Limited
Public Figure)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make the following statement to [a
person/persons] other than [name of plaintiff]? [Insert claimed per
se defamatory statement.]
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [person/people] to whom the statement was made
reasonably understand that the statement was about [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [this person/these people] reasonably understand the
statement to mean that [insert ground(s) for defamation per se, e.g.,
“[name of plaintiff] had committed a crime”]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the statement false?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] knew the statement was false or had serious
doubts about the truth of the statement?
5. Yes No
5. If your answer to question 5 is yes, then answer questions 6, 7,
and 8. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
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ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property, business, trade,
profession, or occupation? . . . . . . . . . . . . . . . $ ]
[b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements? . . . . . . . . . . . . . . . . $ ]
[c. Harm to [name of plaintiff]’s reputation? . . . . . . . $ ]
[d. Shame, mortification, or hurt feelings? . . . . . . . . $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, then answer question 8. If [name of plaintiff] has
proved actual damages for both c and d, skip question 8 and
answer question 9.]
ASSUMED DAMAGES
8. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her/nonbinary pronoun] reputation, and for
shame, mortification, or hurt feelings? You must award at least a
nominal sum.
$
PUNITIVE DAMAGES
9. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What is your award of punitive damages, if any, against [name of
defendant]?
$
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Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1700, Defamation per se—Essential
Factual Elements (Public Offıcer/Figure and Limited Public Figure).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8. For
these categories, the jury may find that no actual damages have been proven but
must still make an award of assumed damages.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1701. Defamation per quod (Public Officer/Figure and Limited
Public Figure)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make the following statement to [a
person/persons] other than [name of plaintiff]? [Insert claimed per
quod defamatory statement.]
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [person/people] to whom the statement was made
reasonably understand that the statement was about [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the statement false?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] knew the statement was false or had serious
doubts about the truth of the statement?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Is the statement, because of facts known to the people who heard
or read it, the kind that would tend to injure [name of plaintiff] in
[his/her/nonbinary pronoun] occupation?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of plaintiff] suffer Harm to [his/her/nonbinary pronoun]
property, business, profession, or occupation [including money
spent as a result of the statement]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
ACTUAL DAMAGES
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
7. Yes No
7. If your answer to question 7 is yes, then answer questions 8. If
you answered no, skip question 8 and answer question 9.
8. What are [name of plaintiff]’s actual damages?
[$ ]
PUNITIVE DAMAGES
9. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What is your award of punitive damages, if any, against [name of
defendant]?
$
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
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Directions for Use
This verdict form is based on CACI No. 1701, Defamation per quod—Essential
Factual Elements (Public Offıcer/Figure and Limited Public Figure).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Users may need to itemize all the damages listed in question 8 if, for example, there
are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Question 5 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1701, Defamation per quod—Essential Factual Elements
(Public Offıcer/Figure and Limited Public Figure), depending on which ground is
applicable in the case.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1702. Defamation per se (Private Figure—Matter of Public
Concern)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make the following statement to [a
person/persons] other than [name of plaintiff]? [Insert claimed per
se defamatory statement.]
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [person/people] to whom the statement was made
reasonably understand that the statement was about [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [this person/these people] reasonably understand the
statement to mean that [insert ground(s) for defamation per se, e.g.,
“[name of plaintiff] had committed a crime”]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the statement false?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] fail to use reasonable care to determine
the truth or falsity of the statement?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property, business, trade,
profession, or occupation? . . . . . . . . . . . . . . $ ]
[b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements? . . . . . . . . . . . . . . . . $ ]
[c. Harm to [name of plaintiff]’s reputation? . . . . . . $ ]
[d. Shame, mortification, or hurt feelings?. . . . . . . . $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, answer question 8. If [name of plaintiff] has proved
actual damages for both c and d, skip questions 8 and 9 and
answer question 10.]
ASSUMED DAMAGES
8. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] knew the statement was false or had serious
doubts about the truth of the statement?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her/nonbinary pronoun] reputation and for
shame, mortification, or hurt feelings? You must award at least a
nominal sum.
$
9. Regardless of your answer to question 9, skip question 10 and
answer question 11.
PUNITIVE DAMAGES
10. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] knew the statement was false or had serious
doubts about the truth of the statement?
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VF-1702 DEFAMATION
10. Yes No
10. If your answer to question 10 is yes, then answer question 11. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
11. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] acted with malice, oppression, or fraud?
11. Yes No
11. If your answer to question 11 is yes, then answer question 12. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
12. What amount, if any, do you award as punitive damages against
[name of defendant]?
$
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1702, Defamation per se—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame, mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8. For
these categories, the jury may find that no actual damages have been proven but
must still make an award of assumed damages.
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DEFAMATION VF-1702
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 12 if the issue of punitive damages has been bifurcated.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1703. Defamation per quod (Private Figure—Matter of Public
Concern)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make the following statement to [a
person/persons] other than [name of plaintiff]? [Insert claimed per
quod defamatory statement.]
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [person/people] to whom the statement was made
reasonably understand that the statement was about [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the statement false?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] fail to use reasonable care to determine
the truth or falsity of the statement?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Is the statement, because of facts known to the people who heard
or read the statement, the kind of statement that would tend to
injure [name of plaintiff] in [his/her/nonbinary pronoun]
occupation?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of plaintiff] suffer Harm to [his/her/nonbinary pronoun]
property, business, profession, or occupation [including money
spent as a result of the statement]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was the statement a substantial factor in causing [name of
plaintiff]’s harm?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
ACTUAL DAMAGES
8. What are [name of plaintiff]’s actual damages?
[$ ]
8. If [name of plaintiff] has not proved any actual damages, stop
here, answer no further questions, and have the presiding juror
sign and date this form. If you awarded actual damages, answer
question 9.
PUNITIVE DAMAGES
9. Did [name of plaintiff] prove by clear and convincing evidence that
[name of defendant] knew the statement was false or had serious
doubts about the truth of the statement?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. Has [name of plaintiff] proved by clear and convincing evidence
that [name of defendant] acted with malice, oppression, or fraud?
10. Yes No
10. If your answer to question 10 is yes, then answer question 11. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
11. What amount, if any, do you award as punitive damages against
[name of defendant]?
$
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VF-1703 DEFAMATION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Users may need to itemize all the damages listed in question 8 if, for example, there
are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Question 5 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1703, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Public Concern), depending on which ground is
applicable in the case.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 11 if the issue of punitive damages has been bifurcated.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1704. Defamation per se—Affirmative Defense—Truth (Private
Figure—Matter of Private Concern)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make the following statement to [a
person/persons] other than [name of plaintiff]? [Insert claimed per
se defamatory statement.]
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [person/people] to whom the statement was made
reasonably understand that the statement was about [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [this person/these people] reasonably understand the
statement to mean that [insert ground(s) for defamation per se, e.g.,
“[name of plaintiff] had committed a crime”]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the statement substantially true?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] fail to use reasonable care to determine
the truth or falsity of the statement?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property, business, trade,
profession, or occupation? . . . . . . . . . . . . . . $ ]
[b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements? . . . . . . . . . . . . . . . . $ ]
[c. Harm to [name of plaintiff]’s reputation? . . . . . . $ ]
[d. Shame, mortification, or hurt feelings? . . . . . . . $ ]
TOTAL $
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, then answer question 8. If [name of plaintiff] has
proved actual damages for both c and d, skip question 8 and
answer question 9.]
ASSUMED DAMAGES
8. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her/nonbinary pronoun] reputation and for
shame, mortification, or hurt feelings? You must award at least a
nominal sum.
$
8. Regardless of your answer to question 8, answer question 9.
PUNITIVE DAMAGES
9. Has [name of plaintiff] proved by clear and convincing evidence
that [name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What amount, if any, do you award as punitive damages against
[name of defendant]?
$
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DEFAMATION VF-1704
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1704, Defamation per se—Essential
Factual Elements (Private Figure—Matter of Private Concern), and CACI No.
1720, Affirmative Defense—Truth. Delete question 4 if the affirmative defense of the
truth is not at issue.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
Multiple statements may need to be set out separately in question 1, and if separate
damages are claimed as to each statement, separate verdict forms may be needed for
each statement because all the elements will need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame, mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8. For
these categories, the jury may find that no actual damages have been proven but
must still make an award of assumed damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
Additional questions on the issue of punitive damages may be needed if the
defendant is a corporate or other entity.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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VF-1704 DEFAMATION
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1705. Defamation per quod (Private Figure—Matter of Private
Concern)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make the following statement to [a
person/persons] other than [name of plaintiff]? [Insert claimed per
quod defamatory statement.]
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the [person/people] to whom the statement was made
reasonably understand that the statement was about [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] fail to use reasonable care to determine
the truth or falsity of the statement?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did the statement tend to injure [name of plaintiff] in
[his/her/nonbinary pronoun] occupation?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] suffer Harm to [his/her/nonbinary pronoun]
property, business, profession, or occupation [including money
spent as a result of the statement]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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VF-1705 DEFAMATION
6. Was the statement a substantial factor in causing [name of
plaintiff]’s harm?
6. Yes No
6. If your answer to question 6 is yes, then answer questions 7 and
8. If you answered no, stop here, answer no further questions,
and have the presiding juror sign and date this form.
ACTUAL DAMAGES
7. What are [name of plaintiff]’s actual damages?
[a. Past economic loss, including harm to [name of plaintiff]’s
property, business, trade, profession, or occupation, and
expenses [name of plaintiff] had to pay as a result of the
defamatory statements
$ ]
[b. Future economic loss, including harm to [name of plaintiff]’s
property, business, trade, profession, or occupation, and
expenses [name of plaintiff] will have to pay as a result of the
defamatory statements
$ ]
[c. Past noneconomic loss including shame, mortification, or hurt
feelings, and harm to [name of plaintiff]’s reputation
$ ]
[d. Future noneconomic loss including shame, mortification, or
hurt feelings, and harm to [name of plaintiff]’s reputation
$ ]
TOTAL $
7. If [name of plaintiff] has not proved any actual damages, stop
here, answer no further questions, and have the presiding juror
sign and date this form. If you awarded actual damages, answer
question 8.
PUNITIVE DAMAGES
8. Has [name of plaintiff] proved by clear and convincing evidence
that [name of defendant] acted with malice, oppression, or fraud?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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DEFAMATION VF-1705
9. What amount, if any, do you award as punitive damages against
[name of defendant]?
$
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
Multiple statements may need to be set out separately in question 1, and if separate
damages are claimed as to each statement, separate verdict forms may be needed for
each statement because all the elements will need to be found as to each statement.
Question 4 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1705, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Private Concern), depending on which ground is
applicable in the case.
If the affirmative defense of truth is at issue (see CACI No. 1720, Affırmative
Defense—Truth), include question 4 from VF-1704, Defamation per se—Affırmative
Defense—Truth (Private Figure—Matter of Private Concern). Additional questions
may be needed on the issue of punitive damages if the defendant is a corporate or
other entity.
Users may need to itemize all the damages listed in question 7 if, for example, there
are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Omit question 9 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
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VF-1705 DEFAMATION
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1706–VF-1719. Reserved for Future Use
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VF-1720. Slander of Title
We answer the questions submitted to us as follows:
1. Did [name of defendant] [make a statement/[specify other act, e.g.,
record a deed] that cast doubts about [name of plaintiff]’s
ownership of the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Was the statement made to a person other than [name of
plaintiff]/[Specify other publication, e.g., Did the deed become a
public record]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] in fact own the property?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [know that/act with reckless disregard of
the truth or falsity as to whether] [name of plaintiff] owned the
property?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] know or should [he/she/nonbinary
pronoun] have recognized that someone else might act in reliance
on the [statement/e.g., deed], causing [name of plaintiff] financial
loss?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of plaintiff] in fact suffer immediate and direct financial
harm because someone else acted in reliance on the [statement/
e.g., deed]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 1730, Slander of Title—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Slander of title may be either by words or an act that clouds title to the property.
(See, e.g., Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011)
200 Cal.App.4th 656, 661 [132 Cal.Rptr.3d 781] [filing of lis pendens].) If the
slander is by words, select the first option in question 2. If the slander is by means
other than words, specify the means in question 1 and how it became known to
others in question 2.
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DEFAMATION VF-1720
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional;
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1721. Trade Libel
We answer the questions submitted to us as follows:
1. Did [name of defendant] make a statement that [would be clearly or
necessarily understood to have] disparaged the quality of [name of
plaintiff]’s [product/service]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the statement made to a person other than [name of
plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the statement untrue?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [know that the statement was untrue/act
with reckless disregard of the truth or falsity of the statement]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] know or should [he/she/nonbinary
pronoun] have recognized that someone else might act in reliance
on the statement, causing [name of plaintiff] financial loss?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of plaintiff] suffer direct financial harm because
someone else acted in reliance on the statement?
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DEFAMATION VF-1721
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss $ ]
[b. Future economic loss $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 1731, Trade Libel—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional;
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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VF-1721 DEFAMATION
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1722–VF-1799. Reserved for Future Use
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Table A. Defamation Per Se
1099
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Table B. Defamation Per Quod
1100
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RIGHT OF PRIVACY
1800. Intrusion Into Private Affairs
1801. Public Disclosure of Private Facts
1802. False Light
1803. Appropriation of Name or Likeness—Essential Factual Elements
1804A. Use of Name or Likeness (Civ. Code, § 3344)
1804B. Use of Name or Likeness—Use in Connection With News, Public Affairs,
or Sports Broadcast or Account, or Political Campaign (Civ. Code,
§ 3344(d))
1805. Affirmative Defense to Use or Appropriation of Name or Likeness—First
Amendment (Comedy III)
1806. Affirmative Defense to Invasion of Privacy—First Amendment Balancing
Test—Public Interest
1807. Affirmative Defense—Invasion of Privacy Justified
1808. Stalking (Civ. Code, § 1708.7)
1809. Recording of Confidential Information (Pen. Code, §§ 632, 637.2)
1810. Distribution of Private Sexually Explicit Materials—Essential Factual
Elements (Civ. Code, § 1708.85)
1811. Reserved for Future Use
1812. Comprehensive Computer Data and Access Fraud Act—Essential Factual
Elements (Pen. Code, § 502)
1813. Definition of “Access” (Pen. Code, § 502(b)(1))
1814. Damages for Investigating Violations of Comprehensive Computer Data and
Access Fraud Act (Pen. Code, § 502(e)(1))
1815–1819. Reserved for Future Use
1820. Damages
1821. Damages for Use of Name or Likeness (Civ. Code § 3344(a))
1822–1899. Reserved for Future Use
VF-1800. Privacy—Intrusion Into Private Affairs
VF-1801. Privacy—Public Disclosure of Private Facts
VF-1802. Privacy—False Light
VF-1803. Privacy—Appropriation of Name or Likeness
VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344)
VF-1805–VF-1806. Reserved for Future Use
VF-1807. Privacy—Recording of Confidential Information (Pen. Code, §§ 632,
637.2)
VF-1808–VF-1899. Reserved for Future Use
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1800. Intrusion Into Private Affairs
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] had a reasonable expectation of privacy in
[specify place or other circumstance];
2. That [name of defendant] intentionally intruded in [specify place or
other circumstance];
3. That [name of defendant]’s intrusion would be highly offensive to a
reasonable person;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
In deciding whether [name of plaintiff] had a reasonable expectation of
privacy in [specify place or other circumstance], you should consider,
among other factors, the following:
(a) The identity of [name of defendant];
(b) The extent to which other persons had access to [specify place or
other circumstance] and could see or hear [name of plaintiff]; and
(c) The means by which the intrusion occurred.
In deciding whether an intrusion is highly offensive to a reasonable
person, you should consider, among other factors, the following:
(a) The extent of the intrusion;
(b) [Name of defendant]’s motives and goals; and
(c) The setting in which the intrusion occurred.
New September 2003; Revised June 2010
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing.
Sources and Authority
• “Seventy years after Warren and Brandeis proposed a right to privacy, Dean
William L. Prosser analyzed the case law development of the invasion of privacy
tort, distilling four distinct kinds of activities violating the privacy protection and
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giving rise to tort liability: (1) intrusion into private matters; (2) public
disclosure of private facts; (3) publicity placing a person in a false light; and (4)
misappropriation of a person’s name or likeness . . . .Prosser’s classification was
adopted by the Restatement Second of Torts in sections 652A–652E. California
common law has generally followed Prosser’s classification of privacy interests
as embodied in the Restatement.” (Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633].)
• The tort of intrusion “encompasses unconsented-to physical intrusion into the
home, hospital room or other place the privacy of which is legally recognized, as
well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and
visual or photographic spying.” (Shulman v. Group W Productions, Inc. (1998)
18 Cal.4th 200, 230 [74 Cal.Rptr.2d 843, 955 P.2d 469], internal citation
omitted.)
• The right of privacy was first recognized in California in the case of Melvin v.
Reid (1931) 112 Cal.App. 285, 291 [297 P. 91]. The court found a legal
foundation for the tort in the right to pursue and obtain happiness found in
article I, section 1 of the California Constitution.
• “The foregoing arguments have been framed throughout this action in terms of
both the common law and the state Constitution. These two sources of privacy
protection ‘are not unrelated’ under California law. (Shulman, supra, 18 Cal.4th
200, 227; accord, Hill, supra, 7 Cal.4th 1, 27; but see Katzberg v. Regents of
University of California (2002) 29 Cal.4th 300, 313, fn. 13 [127 Cal.Rptr.2d 482,
58 P.3d 339] [suggesting it is an open question whether the state constitutional
privacy provision, which is otherwise self-executing and serves as the basis for
injunctive relief, can also provide direct and sole support for a damages claim].)”
(Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286 [97 Cal.Rptr.3d 274,
211 P.3d 1063].)
• “[W]e will assess the parties’ claims and the undisputed evidence under the
rubric of both the common law and constitutional tests for establishing a privacy
violation. Borrowing certain shorthand language from Hill, supra, 7 Cal.4th 1,
which distilled the largely parallel elements of these two causes of action, we
consider (1) the nature of any intrusion upon reasonable expectations of privacy,
and (2) the offensiveness or seriousness of the intrusion, including any
justification and other relevant interests.” (Hernandez, supra, 47 Cal.4th at p.
288.)
• The element of intrusion “is not met when the plaintiff has merely been
observed, or even photographed or recorded, in a public place. Rather, ‘the
plaintiff must show the defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about, the plaintiff.’ ”
(Sanders v. American Broadcasting Co. (1999) 20 Cal.4th 907, 914–915 [85
Cal.Rptr.2d 909, 978 P.2d 67], internal citations omitted.)
• “As to the first element of the common law tort, the defendant must have
‘penetrated some zone of physical or sensory privacy . . . or obtained unwanted
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access to data’ by electronic or other covert means, in violation of the law or
social norms. In either instance, the expectation of privacy must be ‘objectively
reasonable.’ In Sanders [supra, at p. 907] . . . , this court linked the
reasonableness of privacy expectations to such factors as (1) the identity of the
intruder, (2) the extent to which other persons had access to the subject place,
and could see or hear the plaintiff, and (3) the means by which the intrusion
occurred.” (Hernandez, supra, 47 Cal.4th at pp. 286–287.)
• The plaintiff does not have to prove that he or she had a “complete expectation
of privacy”: “Privacy for purposes of the intrusion tort must be evaluated with
respect to the identity of the alleged intruder and the nature of the intrusion.”
(Sanders, supra, 20 Cal.4th at pp. 917–918.)
• “The second common law element essentially involves a ‘policy’ determination
as to whether the alleged intrusion is ‘highly offensive’ under the particular
circumstances. Relevant factors include the degree and setting of the intrusion,
and the intruder’s motives and objectives. Even in cases involving the use of
photographic and electronic recording devices, which can raise difficult questions
about covert surveillance, ‘California tort law provides no bright line on
[“offensiveness”]; each case must be taken on its facts.’ ” (Hernandez, supra, 47
Cal. 4th at p. 287, internal citations omitted.)
• “While what is ‘highly offensive to a reasonable person’ suggests a standard
upon which a jury would properly be instructed, there is a preliminary
determination of ‘offensiveness’ which must be made by the court in discerning
the existence of a cause of action for intrusion. . . . A court determining the
existence of ‘offensiveness’ would consider the degree of intrusion, the context,
conduct and circumstances surrounding the intrusion as well as the intruder’s
motives and objectives, the setting into which he intrudes, and the expectations
of those whose privacy is invaded.” (Miller v. National Broadcasting Co. (1986)
187 Cal.App.3d 1463, 1483–1484 [232 Cal.Rptr. 668].)
• “Plaintiffs must show more than an intrusion upon reasonable privacy
expectations. Actionable invasions of privacy also must be ‘highly offensive’ to a
reasonable person, and ‘sufficiently serious’ and unwarranted as to constitute an
‘egregious breach of the social norms.’ ” (Hernandez, supra, 47 Cal.4th at p.
295, internal citation omitted.)
• “[L]iability under the intrusion tort requires that the invasion be highly offensive
to a reasonable person, considering, among other factors, the motive of the
alleged intruder.” (Sanders, supra, 20 Cal.4th at p. 911, internal citations
omitted.)
• Damages flowing from an invasion of privacy “logically would include an award
for mental suffering and anguish.” (Miller, supra, 187 Cal.App.3d at p. 1484,
citing Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82
[291 P.2d 194].)
• Related statutory actions can be brought for stalking (Civ. Code, § 1708.7),
invasion of privacy to capture physical impression (Civ. Code, § 1708.8), and
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eavesdropping and wiretapping (Pen. Code, § 637.2). Civil Code section 1708.8
was enacted in 1998 as an anti-paparazzi measure. To date there are no reported
cases based on this statute.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 756, 757, 762–765
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1887
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.02 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.16 (Matthew
Bender)
18 California Points and Authorities, Ch. 183, Privacy: State Constitutional Rights,
§ 183.30 (Matthew Bender)
California Civil Practice: Torts § 20:8 (Thomson Reuters)
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1801. Public Disclosure of Private Facts
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] publicized private information
concerning [name of plaintiff];
2. That a reasonable person in [name of plaintiff]’s position would
consider the publicity highly offensive;
3. That [name of defendant] knew, or acted with reckless disregard of
the fact, that a reasonable person in [name of plaintiff]’s position
would consider the publicity highly offensive;
4. That the private information was not of legitimate public concern
[or did not have a substantial connection to a matter of legitimate
public concern];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
In deciding whether the information was a matter of legitimate public
concern, you should consider, among other factors, the following:
(a) The social value of the information;
(b) The extent of the intrusion into [name of plaintiff]’s privacy; [and]
(c) Whether [name of plaintiff] consented to the publicity explicitly or
by voluntarily seeking public attention or a public office; [and]
(d) [Insert other applicable factor].
[In deciding whether [name of defendant] publicized the information, you
should determine whether it was made public either by communicating it
to the public at large or to so many people that the information was
substantially certain to become public knowledge.]
New September 2003
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing.
Comment (a) to Restatement Second of Torts, section 652D states that “publicity”
“means that the matter is made public, by communicating it to the public at large,
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or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.” This point has been placed in brackets because it
may not be an issue in every case.
Sources and Authority
• “[T]he allegations involve a public disclosure of private facts. The elements of
this tort are ‘ “(1) public disclosure (2) of a private fact (3) which would be
offensive and objectionable to the reasonable person and (4) which is not of
legitimate public concern.” ’ The absence of any one of these elements is a
complete bar to liability.” (Moreno v. Hanford Sentinel, Inc. (2009) 172
Cal.App.4th 1125, 1129–1130 [91 Cal.Rptr.3d 858], internal citations omitted.)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633], internal
citation omitted.)
• “Generally speaking, matter which is already in the public domain is not private,
and its publication is protected.” (Diaz v. Oakland Tribune (1983) 139
Cal.App.3d 118, 131 [188 Cal.Rptr. 762], internal citations omitted.) “[M]atter
which was once of public record may be protected as private facts where
disclosure of that information would not be newsworthy.” (Id. at p. 132.)
• “[W]e find it reasonable to require a plaintiff to prove, in each case, that the
publisher invaded his privacy with reckless disregard for the fact that reasonable
men would find the invasion highly offensive.” (Briscoe v. Reader’s Digest
Assn., Inc. (1971) 4 Cal.3d 529, 542–543 [93 Cal.Rptr. 866, 483 P.2d 34].)
• “If a jury finds that a publication discloses private facts which are ‘highly
offensive and injurious to the reasonable man’ [citation] then it would inter alia
also satisfy the reckless disregard requirement.” (Johnson v. Harcourt, Brace,
Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 891, fn. 11 [118 Cal.Rptr. 370].)
• “Diaz . . . expressly makes the lack of newsworthiness part of the plaintiff’s
case in a private facts action. . . . We therefore agree with defendants that under
California common law the dissemination of truthful, newsworthy material is not
actionable as a publication of private facts.” (Shulman v. Group W Productions,
Inc. (1998) 18 Cal.4th 200, 215 [74 Cal.Rptr.2d 843, 955 P.2d 469], internal
citations omitted.)
• “In analyzing the element of newsworthiness, appellate decisions ‘balance[] the
public’s right to know against the plaintiff’s privacy interest by drawing a
protective line at the point the material revealed ceases to have any substantial
connection to the subject matter of the newsworthy report.’ ” (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1257 [217 Cal.Rptr.3d 234].)
• “ ‘[N]ewsworthiness is not limited to “news” in the narrow sense of reports of
current events. “It extends also to the use of names, likenesses or facts in giving
information to the public for purposes of education, amusement or
enlightenment, when the public may reasonably be expected to have a legitimate
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interest in what is published” ’ ” (Jackson, supra, 10 Cal.App.5th at p. 1257.)
• “[T]here is a public interest which attaches to people who by their
accomplishments, mode of living, professional standing or calling, create a
legitimate and widespread attention to their activities. Certainly, the
accomplishments and way of life of those who have achieved a marked
reputation or notoriety by appearing before the public such as actors and
actresses [and] professional athletes, . . . may legitimately be mentioned and
discussed in print or on radio or television. Such public figures have to some
extent lost the right of privacy, and it is proper to go further in dealing with their
lives and public activities than with those of entirely private persons.” (Jackson,
supra, 10 Cal.App.5th at pp. 1257–1258.)
• “In the matter before us, however, there is no indication that any issue of public
interest or freedom of the press was involved. ‘ “In determining what is a matter
of legitimate public interest, account must be taken of the customs and
conventions of the community; and in the last analysis what is proper becomes a
matter of the community mores. The line is to be drawn when the publicity
ceases to be the giving of information to which the public is entitled, and
becomes a morbid and sensational prying into private lives for its own sake,
with which a reasonable member of the public, with decent standards, would say
that he had no concern.” ’ Put another way, morbid and sensational
eavesdropping or gossip ‘serves no legitimate public interest and is not deserving
of protection. [Citations.]’ ” (Catsouras v. Department of California Highway
Patrol (2010) 181 Cal.App.4th 856, 874 [104 Cal.Rptr.3d 352], internal citation
omitted.)
• “Almost any truthful commentary on public officials or public affairs, no matter
how serious the invasion of privacy, will be privileged.” (Briscoe, supra, 4
Cal.3d at p. 535, fn. 5.)
• “We have previously set forth criteria for determining whether an incident is
newsworthy. We consider ‘[1] the social value of the facts published, [2] the
depth of the article’s intrusion into ostensibly private affairs, and [3] the extent
to which the party voluntarily acceded to a position of public notoriety.’ ”
(Briscoe, supra, 4 Cal.3d at p. 541, internal citations omitted.)
• “[T]he right of privacy is purely personal. It cannot be asserted by anyone other
than the person whose privacy has been invaded.” (Moreno, supra, 172
Cal.App.4th at p. 1131.)
• “[L]imiting liability for public disclosure of private facts to those recorded in a
writing is contrary to the tort’s purpose, which has been since its inception to
allow a person to control the kind of information about himself made available
to the public—in essence, to define his public persona. While this restriction
may have made sense in the 1890’s—when no one dreamed of talk radio or
confessional television—it certainly makes no sense now. Private facts can be
just as widely disclosed—if not more so—through oral media as through written
ones. To allow a plaintiff redress for one kind of disclosure but not the other,
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when both can be equally damaging to privacy, is a rule better suited to an era
when the town crier was the principal purveyor of news. It is long past time to
discard this outmoded rule.” (Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th
808, 819 [154 Cal.Rptr.3d 275], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 772–775
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.03 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.32 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.20 (Matthew Bender)
California Civil Practice: Torts §§ 20:1–20:2 (Thomson Reuters)
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1802. False Light
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] publicly disclosed information or
material that showed [name of plaintiff] in a false light;
2. That the false light created by the disclosure would be highly
offensive to a reasonable person in [name of plaintiff]’s position;
3. [That there is clear and convincing evidence that [name of
defendant] knew the disclosure would create a false impression
about [name of plaintiff] or acted with reckless disregard for the
truth;]
3. [or]
3. [That [name of defendant] was negligent in determining the truth
of the information or whether a false impression would be
created by its disclosure;]
4. [That [name of plaintiff] was harmed; and]
4. [or]
4. [That [name of plaintiff] sustained harm to [his/her/nonbinary
pronoun] property, business, profession, or occupation [including
money spent as a result of the statement(s)]; and]
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised November 2017, May 2018, November 2018
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing.
False light claims are subject to the same constitutional protections that apply to
defamation claims. (Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d 529, 543 [93
Cal.Rptr. 866, 483 P.2d 34], overruled on other grounds in Gates v. Discovery
Communications, Inc. (2004) 34 Cal.4th 679, 696, fn. 9 [21 Cal.Rptr.3d 663, 101
P.3d 552] [false light claim should meet the same requirements of a libel claim,
including proof of malice when required].) Thus, a knowing violation of or reckless
disregard for the plaintiff’s rights is required if the plaintiff is a public figure. (See
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 721–722 [257 Cal.Rptr. 708,
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771 P.2d 406].) Give the first option for element 3 if the disclosure involves a
public figure. Give the second option for a private citizen, at least with regard to a
matter of private concern. (See id. at p. 742 [private person need prove only
negligence rather than malice to recover for defamation].)
There is perhaps some question as to which option for element 3 to give for a
private person if the matter is one of public concern. For defamation, a private
figure plaintiff must prove malice to recover presumed and punitive damages for a
matter of public concern, but not to recover for damages to reputation. (Khawar v.
Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79 Cal.Rptr.2d 178, 965 P.2d
696].) No case has been found that provides for presumed damages for a false light
violation. Therefore, the court will need to decide whether proof of malice is
required from a private plaintiff even though the matter may be one of public
concern.
If the jury will also be instructed on defamation, an instruction on false light would
be superfluous and therefore need not be given. (See Eisenberg v. Alameda
Newspapers (1999) 74 Cal.App.4th 1359, 1385, fn. 13 [88 Cal.Rptr.2d 802]; see
also Briscoe, supra, 4 Cal.3d at p. 543.) For defamation, utterance of a defamatory
statement to a single third person constitutes sufficient publication. (Cunningham v.
Simpson (1969) 1 Cal.3d 301, 307 [81 Cal.Rptr. 855, 461 P.2d 39]; but see Warfield
v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 660 [262 Cal.Rptr.
890] [false light case holding that “account” published in defendant’s membership
newsletter does not meet threshold allegation of a general public disclosure].)
Sources and Authority
• “ ‘False light is a species of invasion of privacy, based on publicity that places a
plaintiff before the public in a false light that would be highly offensive to a
reasonable person, and where the defendant knew or acted in reckless disregard
as to the falsity of the publicized matter and the false light in which the plaintiff
would be placed.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264
[217 Cal.Rptr.3d 234].)
• “A ‘false light’ claim, like libel, exposes a person to hatred, contempt, ridicule,
or obloquy and assumes the audience will recognize it as such.” (De Havilland v.
FX Networks, LLC (2018) 21 Cal.App.5th 845, 865 [230 Cal.Rptr.3d 625].)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633], internal
citation omitted.)
• “In order to be actionable, the false light in which the plaintiff is placed must be
highly offensive to a reasonable person. Although it is not necessary that the
plaintiff be defamed, publicity placing one in a highly offensive false light will
in most cases be defamatory as well.” (Fellows v. National Enquirer (1986) 42
Cal.3d 234, 238–239 [228 Cal.Rptr. 215, 721 P.2d 97], internal citation omitted.)
• “When a false light claim is coupled with a defamation claim, the false light
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claim is essentially superfluous, and stands or falls on whether it meets the same
requirements as the defamation cause of action.” (Eisenberg, supra, 74
Cal.App.4th at p. 1385, fn. 13, internal citations omitted.)
• “[A] ‘false light’ cause of action ‘is in substance equivalent to . . . [a] libel
claim, and should meet the same requirements of the libel claim . . . including
proof of malice and fulfillment of the requirements of [the retraction statute]
section 48a [of the Civil Code].” ’ ” (Briscoe, supra, 4 Cal.3d at p. 543, internal
citation omitted.)
• “Because in this defamation action [plaintiff] is a private figure plaintiff, he was
required to prove only negligence, and not actual malice, to recover damages for
actual injury to his reputation. But [plaintiff] was required to prove actual malice
to recover punitive or presumed damages . . . .” (Khawar, supra, 19 Cal.4th at
p. 274.)
• “To defeat [defendant] ’s anti-SLAPP motion on her false light claim, [plaintiff],
as a public figure, must demonstrate a reasonable probability she can prove
[defendant] broadcast statements that are (1) assertions of fact, (2) actually false
or create a false impression about her, (3) highly offensive to a reasonable
person or defamatory, and (4) made with actual malice.” (De Havilland, supra,
21 Cal.App.5th at p. 865.)
• “[Plaintiff] does not dispute that she is a public figure. . . . Accordingly, the
Constitution requires [plaintiff] to prove by clear and convincing evidence that
[defendant] ‘knew the [docudrama] would create a false impression about [her]
or acted with reckless disregard for the truth.’ (CACI No. 1802.)” (De
Havilland, supra, 21 Cal.App.5th at p. 869.)
• “Publishing a fictitious work about a real person cannot mean the author, by
virtue of writing fiction, has acted with actual malice.” (De Havilland, supra, 21
Cal.App.5th at p. 869.)
• “[I]n cases where the claimed highly offensive or defamatory aspect of the
portrayal is implied, courts have required plaintiffs to show that the defendant ‘
“intended to convey the defamatory impression.” ’ [Plaintiff] must demonstrate
‘that [defendant] either deliberately cast [her] statements in an equivocal fashion
in the hope of insinuating a defamatory import to the reader, or that [it] knew
or acted in reckless disregard of whether [its] words would be interpreted by the
average reader as defamatory statements of fact.’ Moreover, because actual
malice is a ‘deliberately subjective’ test, liability cannot be imposed for an
implication that merely ‘ “should have been foreseen.” ’ ” (De Havilland, supra,
21 Cal.App.5th at pp. 869–870, internal citations omitted.)
• “The New York Times decision defined a zone of constitutional protection within
which one could publish concerning a public figure without fear of liability. That
constitutional protection does not depend on the label given the stated cause of
action; it bars not only actions for defamation, but also claims for invasion of
privacy.” (Reader’s Digest Assn., Inc. v. Superior Court (1984) 37 Cal.3d 244,
265 [208 Cal.Rptr. 137, 690 P.2d 610], internal citations omitted.)
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• “[T]he constitutional protections for speech and press preclude the application of
the New York statute to redress false reports of matters of public interest in the
absence of proof that the defendant published the report with knowledge of its
falsity or in reckless disregard of the truth.” (Time, Inc. v. Hill (1967) 385 U.S.
374, 387–388 [87 S.Ct. 534, 17 L.Ed.2d 456].)
• “We hold that whenever a claim for false light invasion of privacy is based on
language that is defamatory within the meaning of section 45a, pleading and
proof of special damages are required.” (Fellows, supra, 42 Cal.3d at p. 251.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 781–783
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.04 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.33 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.21 (Matthew Bender)
California Civil Practice: Torts §§ 20:12–20:15 (Thomson Reuters)
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1803. Appropriation of Name or Likeness—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] used [name of plaintiff]’s name, likeness,
or identity;
2. That [name of plaintiff] did not consent to this use;
3. That [name of defendant] gained a commercial benefit [or some
other advantage] by using [name of plaintiff]’s name, likeness, or
identity;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2014, November 2017, May 2020
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing.
If the alleged “benefit” is not commercial, the judge will need to determine whether
the advantage gained by the defendant qualifies as “some other advantage.”
If suing under both the common law and Civil Code section 3344, the judge may
need to explain that a person’s voice, for example, may qualify as “identity” if the
voice is sufficient to cause listeners to identify the plaintiff. The two causes of
action overlap, and the same conduct should be covered by both.
Even if the elements are established, the First Amendment may require that the right
to be protected from unauthorized publicity be balanced against the public interest
in the dissemination of news and information. (See Gionfriddo v. Major League
Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307].) In a closely
related right-of-publicity claim, the California Supreme Court has held that an artist
who is faced with a challenge to the artist’s work may raise as affirmative defense
that the work is protected by the First Amendment because it contains significant
transformative elements or that the value of the work does not derive primarily from
the celebrity’s fame. (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25
Cal.4th 387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797]; see CACI No. 1805,
Affırmative Defense to Use or Appropriation of Name or Likeness—First Amendment
(Comedy III).) Therefore, if there is an issue of fact regarding a First Amendment
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balancing test, it most probably should be considered to be an affirmative defense.
(Cf. Gionfriddo, supra, 94 Cal.App.4th at p. 414 [“Given the significant public
interest in this sport, plaintiffs can only prevail if they demonstrate a substantial
competing interest”].)
Sources and Authority
• “A common law misappropriation claim is pleaded by ‘alleging: “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name
or likeness to defendant’s advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury. [Citations.]” [Citation.]’ ” (Maxwell v. Dolezal
(2014) 231 Cal.App.4th 93, 97 [179 Cal.Rptr.3d 807].)
• “ ‘[T]he right of publicity has come to be recognized as distinct from the right of
privacy’. ‘What may have originated as a concern for the right to be left alone
has become a tool to control the commercial use and, thus, protect the economic
value of one’s name, voice, signature, photograph, or likeness.’ ‘What the right
of publicity holder possesses is . . . a right to prevent others from
misappropriating the economic value generated . . . through the merchandising
of the ‘name, voice, signature, photograph, or likeness’ of the [holder].’ ” (Timed
Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 1006 [177 Cal.Rptr.3d
773], internal citations omitted.)
• “The common law cause of action may be stated by pleading the defendant’s
unauthorized use of the plaintiff’s identity; the appropriation of the plaintiff’s
name, voice, likeness, signature, or photograph to the defendant’s advantage,
commercially or otherwise; and resulting injury.” (Ross v. Roberts (2013) 222
Cal.App.4th 677, 684–685 [166 Cal.Rptr.3d 359].)
• “[B]oth the statutory and common law versions of a right of publicity claim
require that the defendant actually use the plaintiff’s likeness . . . .” (Cross v.
Facebook, Inc. (2017) 14 Cal.App.5th 190, 210 [222 Cal.Rptr.3d 250].)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633], internal
citation omitted.)
• “Consent to the use of a name or likeness is determined by traditional principles
of contract interpretation.” (Local TV, LLC v. Superior Court (2016) 3
Cal.App.5th 1, 8 [206 Cal.Rptr.3d 884].)
• “[T]he appearance of an ‘endorsement’ is not the sine qua non of a claim for
commercial appropriation.” (Eastwood v. Superior Court (1983) 149 Cal.App.3d
409, 419 [198 Cal.Rptr. 342].)
• “[N]o cause of action will lie for the ‘[p]ublication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ ” (Montana v. San Jose Mercury News (1995) 34 Cal.App.4th
790, 793 [40 Cal.Rptr.2d 639], internal citation omitted.)
• “The difficulty in defining the boundaries of the right, as applied in the
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CACI No. 1803 RIGHT OF PRIVACY
publication field, is inherent in the necessity of balancing the public interest in
the dissemination of news, information and education against the individuals’
interest in peace of mind and freedom from emotional disturbances. When words
relating to or actual pictures of a person or his name are published, the
circumstances may indicate that public interest is predominant. Factors deserving
consideration may include the medium of publication, the extent of the use, the
public interest served by the publication, and the seriousness of the interference
with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273,
278–279 [239 P.2d 630].)
• “Even if each of these elements is established, however, the common law right
does not provide relief for every publication of a person’s name or likeness. The
First Amendment requires that the right to be protected from unauthorized
publicity ‘be balanced against the public interest in the dissemination of news
and information consistent with the democratic processes under the constitutional
guaranties of freedom of speech and of the press.’ ” (Gionfriddo, supra, 94
Cal.App.4th at pp. 409–410, internal citations and footnote omitted.)
• “Public interest attaches to people who by their accomplishments or mode of
living create a bona fide attention to their activities.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation
omitted.)
• “[T]he fourth category of invasion of privacy, namely, appropriation, ‘has been
complemented legislatively by Civil Code section 3344, adopted in 1971.’ ”
(Eastwood, supra, 149 Cal.App.3d at pp. 416–417.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 784–786
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35, 429.36
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.21 (Matthew Bender)
California Civil Practice: Torts § 20:16 (Thomson Reuters)
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1804A. Use of Name or Likeness (Civ. Code, § 3344)
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] knowingly used [name of plaintiff]’s
[name/voice/signature/photograph/likeness] [on merchandise/ [or]
to advertise or sell [describe what is being advertised or sold]];
2. That the use did not occur in connection with a news, public
affairs, or sports broadcast or account, or with a political
campaign;
3. That [name of defendant] did not have [name of plaintiff]’s consent;
4. That [name of defendant]’s use of [name of plaintiff]’s [name/voice/
signature/photograph/likeness] was directly connected to [name of
defendant]’s commercial purpose;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name and
likeness are protected under both the common law and under Civil Code section
3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both this
instruction and CACI No. 1803, Appropriation of Name or Likeness, which sets
forth the common-law cause of action, will normally be given.
Different standards apply if the use is in connection with a news, public affairs, or
sports broadcast or account, or with a political campaign. (See Civ. Code, § 3344(d);
Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198 Cal.Rptr.
342].) The plaintiff bears the burden of proving the nonapplicability of these
exceptions. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400,
416–417 [114 Cal.Rptr.2d 307].) Element 2 may be omitted if there is no question
of fact with regard to this issue. See CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign, for an instruction to use if one of the exceptions of
Civil Code section 3344(d) applies.
If plaintiff alleges that the use was not covered by Civil Code section 3344(d) (e.g.,
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CACI No. 1804A RIGHT OF PRIVACY
not a “news” account) but that even if it were covered it is not protected under the
standards of Eastwood, then both this instruction and CACI No. 1804B should be
given in the alternative. In that case, it should be made clear to the jury that if the
plaintiff fails to prove the inapplicability of Civil Code section 3344(d) as set forth
in element 2, the claim is still viable if the plaintiff proves all the elements of CACI
No. 1804B.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section 3344(a)
even if actual damages are not proven. (See Miller v. Collectors Universe, Inc.
(2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “Civil Code section 3344 provides a statutory cause of action for commercial
misappropriation that complements, rather than codifies, the common law
misappropriation cause of action.” (Local TV, LLC v. Superior Court (2016) 3
Cal.App.5th 1, 13 [206 Cal.Rptr.3d 884].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters v. Matthews (2000)78 Cal.App.4th 362, 367 [92 Cal.Rptr.2d 713].)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name
or likeness to defendant’s advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy, a
plaintiff must present evidence of ‘all the elements of the common law cause of
action’ and must also prove ‘a knowing use by the defendant as well as a direct
connection between the alleged use and the commercial purpose.’ ” (Orthopedic
Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135 Cal.Rptr.3d 200],
internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are cumulative
and in addition to any provided for by law.” (Eastwood, supra, 149 Cal.App.3d
at p. 417, fn. 6, internal citation omitted.)
• “[B]oth the statutory and common law versions of a right of publicity claim
require that the defendant actually use the plaintiff’s likeness . . . .” (Cross v.
Facebook, Inc. (2017) 14 Cal.App.5th 190, 210 [222 Cal.Rptr.3d 250].)
• “Plaintiffs assert that Civil Code section 3344’s ‘commercial use’ requirement
does not need to ‘involve some form of advertising or endorsement.’ This is
simply incorrect, as Civil Code section 3344, subdivision (a) explicitly provides
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RIGHT OF PRIVACY CACI No. 1804A
for possible liability on ‘[a]ny person who knowingly uses another’s name,
voice, signature, photograph, or likeness, in any manner . . . for purposes of
advertising . . . without such person’s prior consent.’ The statute requires some
‘use’ by the advertiser aimed at obtaining a commercial advantage for the
advertiser.” (Cross, supra, 14 Cal.App.5th at p. 210.)
• “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies,
in general, to a cause of action for unauthorized commercial use of likeness.”
(Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798,
213 P.3d 132].)
• “Any facts which tend to disprove one of the allegations raised in a complaint
may be offered in the defendant’s answer based upon a general denial and need
not be raised by affirmative defense. . . . Throughout this litigation plaintiffs
have borne the burden of establishing that their names and likenesses were used
in violation of section 3344, and this burden has always required proof that the
disputed uses fell outside the exemptions granted by subdivision (d).”
(Gionfriddo, supra, 94 Cal.App.4th at pp. 416–417, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 789–791
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Invasion Of
Privacy, ¶¶ 5:1116–5:1118 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35–429.36
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§§ 184.22–184.24 (Matthew Bender)
California Civil Practice: Torts § 20:17 (Thomson Reuters)
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1804B. Use of Name or Likeness—Use in Connection With News,
Public Affairs, or Sports Broadcast or Account, or Political
Campaign (Civ. Code, § 3344(d))
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] knowingly used [name of plaintiff]’s
[name/voice/signature/photograph/likeness] [on merchandise/ [or]
to advertise or sell [describe what is being advertised or sold]];
2. That the use occurred in connection with a [[news/public affairs/
sports] broadcast or account/political campaign];
3. That the use contained false information;
4. [Use for public figure: That [name of defendant] knew the
[broadcast or account/campaign material] was false or that [he/
she/nonbinary pronoun/it] acted with reckless disregard of its
falsity;]
4. [or]
4. [Use for private individual: That [name of defendant] was negligent
in determining the truth of the [broadcast or account/campaign
material];]
5. That [name of defendant]’s use of [name of plaintiff]’s [name/voice/
signature/photograph/likeness] was directly connected to [name of
defendant]’s commercial purpose;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
Give this instruction if the plaintiff’s name or likeness has been used in connection
with a news, public affairs, or sports broadcast or account, or with a political
campaign. In this situation, consent is not required. (Civ. Code, § 3344(d).)
However, in Eastwood v. Superior Court, the court held that the constitutional
standards under defamation law apply under section 3344(d) and that the statute as
it applies to news does not provide protection for a knowing or reckless falsehood.
(Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198 Cal.Rptr.
342].) Under defamation law, this standard applies only to public figures, and
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RIGHT OF PRIVACY CACI No. 1804B
private individuals may sue for negligent publication of defamatory falsehoods. (Id.
at p. 424.) Presumably, the same distinction between public figures and private
individuals would apply under Civil Code section 3344(d). Element 4 provides for
the standards established and suggested by Eastwood.
Give CACI No. 1804A, Use of Name or Likeness, if there is no issue whether one
of the exceptions of Civil Code section 3344(d) applies. If plaintiff alleges that the
use was not covered by subdivision (d) (e.g., not a “news” account) but that even if
it were covered it is not protected under the standards of Eastwood, then both this
instruction and CACI No. 1804A should be given in the alternative. In that case, it
should be made clear to the jury that if the plaintiff fails to prove the inapplicability
of Civil Code section 3344(d) as set forth element 2 of CACI No. 1804A, the claim
is still viable if the plaintiff proves all the elements of this instruction.
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name and
likeness are protected under both the common law and under Civil Code section
3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both this
instruction and CACI No. 1803, Appropriation of Name or Likeness, which sets
forth the common-law cause of action, will normally be given.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section 3344(a)
even if actual damages are not proven. (See Miller v. Collectors Universe, Inc.
(2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Even though consent is not required, it may be an affirmative defense. CACI No.
1721, Affırmative Defense—Consent (to defamation), may be used in this situation.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• Civil Code section 3344 is “a commercial appropriation statute which
complements the common law tort of appropriation.” (KNB Enters. v. Matthews
(2000) 78 Cal.App.4th 362, 366–367 [92 Cal.Rptr.2d 713].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters., supra, 78 Cal.App.4th at p. 367.)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name
or likeness to defendant’s advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy, a
plaintiff must present evidence of ‘all the elements of the common law cause of
action’ and must also prove ‘a knowing use by the defendant as well as a direct
connection between the alleged use and the commercial purpose.’ ” (Orthopedic
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Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135 Cal.Rptr.3d 200],
internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are cumulative
and in addition to any provided for by law.” (Eastwood, supra, 149 Cal.App.3d
at p. 417, fn. 6, internal citation omitted.)
• “The spacious interest in an unfettered press is not without limitation. This
privilege is subject to the qualification that it shall not be so exercised as to
abuse the rights of individuals. Hence, in defamation cases, the concern is with
defamatory lies masquerading as truth. Similarly, in privacy cases, the concern is
with nondefamatory lies masquerading as truth. Accordingly, we do not believe
that the Legislature intended to provide an exemption from liability for a
knowing or reckless falsehood under the canopy of ‘news.’ We therefore hold
that Civil Code section 3344, subdivision (d), as it pertains to news, does not
provide an exemption for a knowing or reckless falsehood.” (Eastwood, supra,
149 Cal.App.3d at p. 426, internal citations omitted.)
• The burden of proof as to knowing or reckless falsehood under Civil Code
section 3344(d) is on the plaintiff. (See Eastwood, supra, 149 Cal.App.3d at p.
426.)
• “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies,
in general, to a cause of action for unauthorized commercial use of likeness.”
(Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798,
213 P.3d 132].)
• “Any facts which tend to disprove one of the allegations raised in a complaint
may be offered in the defendant’s answer based upon a general denial and need
not be raised by affirmative defense. . . . Throughout this litigation plaintiffs
have borne the burden of establishing that their names and likenesses were used
in violation of section 3344, and this burden has always required proof that the
disputed uses fell outside the exemptions granted by subdivision (d).”
(Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 416–417 [114
Cal.Rptr.2d 307], internal citation omitted.)
• “We presume that the Legislature intended that the category of public affairs
would include things that would not necessarily be considered news. Otherwise,
the appearance of one of those terms in the subsection would be superfluous, a
reading we are not entitled to give to the statute. We also presume that the term
‘public affairs’ was intended to mean something less important than news. Public
affairs must be related to real-life occurrences.” (Dora v. Frontline Video, Inc.
(1993) 15 Cal.App.4th 536, 546 [18 Cal.Rptr.2d 790], internal citations omitted.)
• “[N]o cause of action will lie for the ‘publication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ ” (Montana v. San Jose Mercury News (1995) 34 Cal.App.4th
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790, 793 [40 Cal.Rptr.2d 639], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 789–791
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-:L, Invasion Of
Privacy, ¶¶ 5:1116–5:1118 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.35 (Matthew Bender)
California Civil Practice: Torts § 20:17 (Thomson Reuters)
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1805. Affirmative Defense to Use or Appropriation of Name or
Likeness—First Amendment (Comedy III)
[Name of defendant] claims that [he/she/nonbinary pronoun] has not
violated [name of plaintiff]’s right of privacy because the [insert type of
work, e.g., “picture”] is protected by the First Amendment’s guarantee of
freedom of speech and expression. To succeed, [name of defendant] must
prove either of the following:
1. That the [insert type of work, e.g., “picture”] adds something new
to [name of plaintiff]’s likeness, giving it a new expression,
meaning, or message; or
2. That the value of the [insert type of work, e.g., “picture”] does not
result primarily from [name of plaintiff]’s fame.
New September 2003; Revised October 2008
Directions for Use
This instruction assumes that the plaintiff is the celebrity whose likeness is the
subject of the trial. This instruction will need to be modified if the plaintiff is not
the actual celebrity.
Sources and Authority
• “In sum, when an artist is faced with a right of publicity challenge to his or her
work, he or she may raise as affirmative defense that the work is protected by
the First Amendment inasmuch as it contains significant transformative elements
or that the value of the work does not derive primarily from the celebrity’s
fame.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th
387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797].)
• “We have explained that ‘[o]nly if [a defendant] is entitled to the
[transformative] defense as a matter of law can it prevail on its motion to
strike,’ because the California Supreme Court ‘envisioned the application of the
defense as a question of fact.’ As a result, [defendant] ‘is only entitled to the
defense as a matter of law if no trier of fact could reasonably conclude that the
[game] [i]s not transformative.’ ” (Keller v. Elec. Arts Inc. (In re NCAA Student-
Athlete Name & Likeness Licensing Litig.) (9th Cir. 2013) 724 F.3d 1268, 1274,
original italics.)
• “[C]ourts can often resolve the question as a matter of law simply by viewing
the work in question and, if necessary, comparing it to an actual likeness of the
person or persons portrayed. Because of these circumstances, an action
presenting this issue is often properly resolved on summary judgment or, if the
complaint includes the work in question, even demurrer.” (Winter v. DC Comics
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RIGHT OF PRIVACY CACI No. 1805
(2003) 30 Cal.4th 881, 891–892 [134 Cal.Rptr.2d 634, 69 P.3d 473], internal
citation omitted.)
• “[T]he First Amendment . . . safeguards the storytellers and artists who take the
raw materials of life—including the stories of real individuals, ordinary or
extraordinary—and transform them into art, be it articles, books, movies, or
plays.” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 860
[230 Cal.Rptr.3d 625].)
• “Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th at
p. 400.)
• “Furthermore, in determining whether a work is sufficiently transformative,
courts may find useful a subsidiary inquiry, particularly in close cases: does the
marketability and economic value of the challenged work derive primarily from
the fame of the celebrity depicted? If this question is answered in the negative,
then there would generally be no actionable right of publicity. When the value of
the work comes principally from some source other than the fame of the
celebrity—from the creativity, skill, and reputation of the artist—it may be
presumed that sufficient transformative elements are present to warrant First
Amendment protection. If the question is answered in the affirmative, however, it
does not necessarily follow that the work is without First Amendment
protection—it may still be a transformative work.” (Comedy III Productions,
Inc., supra, 25 Cal.4th at p. 407.)
• “As the Supreme Court has stated, the central purpose of the inquiry into this
fair use factor ‘is to see . . . whether the new work merely “supersede[s] the
objects” of the original creation, or instead adds something new, with a further
purpose or different character, altering the first with new expression, meaning, or
message; it asks, in other words, whether and to what extent the new work is
“transformative.” ’ ” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 404,
internal citations omitted.)
• “We emphasize that the transformative elements or creative contributions that
require First Amendment protection are not confined to parody and can take
many forms, from factual reporting to fictionalized portrayal, from heavy-handed
lampooning to subtle social criticism.” (Comedy III Productions, Inc., supra, 25
Cal.4th at p. 406.)
• “[Defendant] contends the plaintiffs’ claims are barred by the transformative use
defense formulated by the California Supreme Court in Comedy III . . . . ‘The
defense is “a balancing test between the First Amendment and the right of
publicity based on whether the work in question adds significant creative
elements so as to be transformed into something more than a mere celebrity
likeness or imitation.” ’ ” (Davis v. Elec. Arts, Inc. (9th Cir. 2015) 775 F.3d
1172, 1177, internal citation omitted.)
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• “Simply stated, the transformative test looks at ‘whether the celebrity likeness is
one of the “raw materials” from which an original work is synthesized, or
whether the depiction or imitation of the celebrity is the very sum and substance
of the work in question. We ask, in other words, whether a product containing a
celebrity’s likeness is so transformed that it has become primarily the
defendant’s own expression rather than the celebrity’s likeness.’ This
transformative test is the court’s primary inquiry when resolving a conflict
between the right of publicity and the First Amendment.” (Ross v. Roberts
(2013) 222 Cal.App.4th 677, 686 [166 Cal.Rptr.3d 359], internal citations
omitted.)
• “Comedy III’s ‘transformative’ test makes sense when applied to products and
merchandise—‘tangible personal property,’ in the Supreme Court’s words. Lower
courts have struggled mightily, however, to figure out how to apply it to
expressive works such as films, plays, and television programs.” (De Havilland,
supra, 21 Cal.App.5th at p. 863, internal citation omitted.)
• “The First Amendment defense does not apply only to visual expressions,
however. ‘The protections may extend to all forms of expression, including
written and spoken words (fact or fiction), music, films, paintings, and
entertainment, whether or not sold for a profit.’ ” (Ross, supra, 222 Cal.App.4th
at p. 687.)
• “The distinction between parody and other forms of literary expression is
irrelevant to the Comedy III transformative test. It does not matter what precise
literary category the work falls into. What matters is whether the work is
transformative, not whether it is parody or satire or caricature or serious social
commentary or any other specific form of expression.” (Winter, supra, 30 Cal.4th
at p. 891.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 788
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 4(VII)-C, Harm to Reputation and Privacy Interests, ¶ 4:1385 et seq.
(The Rutter Group)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.38 (Matthew Bender)
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1806. Affirmative Defense to Invasion of Privacy—First
Amendment Balancing Test—Public Interest
[Name of defendant] claims that [he/she/nonbinary pronoun] has not
violated [name of plaintiff]’s right of privacy because the public interest
served by [name of defendant]’s [specify privacy violation, e.g., use of
[name of plaintiff]’s name, likeness, or identity] outweighs [name of
plaintiff]’s privacy interests. In deciding whether the public interest
outweighs [name of plaintiff]’s privacy interest, you should consider all of
the following:
a. Where the information was used;
b. The extent of the use;
c. The public interest served by the use;
d. The seriousness of the interference with [name of plaintiff]’s
privacy; and
e. [specify other factors].
New June 2015
Directions for Use
This instruction sets forth a balancing test for a claim for invasion of privacy. A
defendant’s First Amendment right to freedom of expression and freedom of the
press can, in some cases, outweigh the plaintiff’s right of privacy (See Gionfriddo v.
Major League Baseball (2001) 94 Cal.App.4th 400, 409–410 [114 Cal.Rptr.2d 307];
see also Gill v. Hearst Publishing Co. Inc. (1953) 40 Cal.2d 224, 228–231 [253 P.2d
441].) This balancing test is an affirmative defense. (See Comedy III Productions,
Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 407 [106 Cal.Rptr.2d 126, 21 P.3d
797]; CACI No. 1805, Affırmative Defense to Use or Appropriation of Name or
Likeness—First Amendment (Comedy III).)
A First-Amendment defense based on newsworthiness has been allowed for the
defendant’s use of the plaintiff’s name or likeness. (See Gionfriddo, supra, 94
Cal.App.4th at pp. 409–411; see CACI No. 1804A.) It has also been allowed for
privacy claims based on intrusion into private affairs (see CACI No. 1800) and
public disclosure of private facts (See CACI No. 1802; Shulman v. Group W
Productions, Inc. (1998) 18 Cal.4th 200, 214–242 [74 Cal.Rptr.2d 843, 955 P.2d
469].) It has also been allowed for a claim that the plaintiff had been presented in a
false light (See CACI No. 1802; Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273,
278–279 [239 P.2d 630] [magazine’s use of plaintiffs’ picture in connection with
article on divorce suggested that they were not happily married].)
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Sources and Authority
• “[N]o cause of action will lie for the ‘[p]ublication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ ” (Montana v. San Jose Mercury News, Inc. (1995) 34
Cal.App.4th 790, 793 [40 Cal.Rptr.2d 639], internal citation omitted.)
• “The sense of an ever-increasing pressure on personal privacy notwithstanding, it
has long been apparent that the desire for privacy must at many points give way
before our right to know, and the news media’s right to investigate and relate,
facts about the events and individuals of our time.” (Shulman, supra, 18 Cal.4th
at p. 208.)
• “The difficulty in defining the boundaries of the right, as applied in the
publication field, is inherent in the necessity of balancing the public interest in
the dissemination of news, information and education against the individuals’
interest in peace of mind and freedom from emotional disturbances. When words
relating to or actual pictures of a person or his name are published, the
circumstances may indicate that public interest is predominant. Factors deserving
consideration may include the medium of publication, the extent of the use, the
public interest served by the publication, and the seriousness of the interference
with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273,
278–279 [239 P.2d 630].)
• “[T]he common law right does not provide relief for every publication of a
person’s name or likeness. The First Amendment requires that the right to be
protected from unauthorized publicity ‘be balanced against the public interest in
the dissemination of news and information consistent with the democratic
processes under the constitutional guaranties of freedom of speech and of the
press.’ ” (Gionfriddo, supra, 94 Cal.App.4th at pp. 409–410, internal citations
and footnote omitted.)
• “Public interest attaches to people who by their accomplishments or mode of
living create a bona fide attention to their activities.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation
omitted.)
• “Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th at
p. 400.)
• “The First Amendment defense does not apply only to visual expressions,
however. ‘The protections may extend to all forms of expression, including
written and spoken words (fact or fiction), music, films, paintings, and
entertainment, whether or not sold for a profit.’ ” (Ross v. Roberts (2013) 222
Cal.App.4th 677, 687 [166 Cal.Rptr.3d 359].)
• “Producers of films and television programs may enter into agreements with
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individuals portrayed in those works for a variety of reasons, including access to
the person’s recollections or ‘story’ the producers would not otherwise have, or a
desire to avoid litigation for a reasonable fee. But the First Amendment simply
does not require such acquisition agreements.” (De Havilland v. FX Networks,
LLC (2018) 21 Cal.App.5th 845, 861 [230 Cal.Rptr.3d 625].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 681 et seq.
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.35 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.27 (Matthew Bender)
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1807. Affirmative Defense—Invasion of Privacy Justified
[Name of defendant] claims that even if [name of plaintiff] has proven all
of the above, [his/her/nonbinary pronoun/its] conduct was justified. [Name
of defendant] must prove that the circumstances justified the invasion of
privacy because the invasion of privacy substantially furthered [insert
relevant legitimate or compelling competing interest].
If [name of defendant] proves that [his/her/nonbinary pronoun/its] conduct
was justified, then you must find for [name of defendant] unless [name of
plaintiff] proves that there was a practical, effective, and less invasive
method of achieving [name of defendant]’s purpose.
New September 2003; Revised October 2008, June 2010
Sources and Authority
• “A defendant may prevail in a state constitutional privacy case by negating any
of the three elements just discussed or by pleading and proving, as an affirmative
defense, that the invasion of privacy is justified because it substantively furthers
one or more countervailing interests. The plaintiff, in turn, may rebut a
defendant’s assertion of countervailing interests by showing there are feasible
and effective alternatives to defendant’s conduct which have a lesser impact on
privacy interests. Of course, a defendant may also plead and prove other
available defenses, e.g., consent, unclean hands, etc., that may be appropriate in
view of the nature of the claim and the relief requested.” (Hill v. National
Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40 [26 Cal.Rptr.2d 834, 865 P.2d
633].)
• “The existence of a sufficient countervailing interest or an alternative course of
conduct present threshold questions of law for the court. The relative strength of
countervailing interests and the feasibility of alternatives present mixed questions
of law and fact. Again, in cases where material facts are undisputed, adjudication
as a matter of law may be appropriate.” (Hill, supra, 7 Cal.4th at p. 40.)
• “Hill and its progeny further provide that no constitutional violation occurs, i.e.,
a ‘defense’ exists, if the intrusion on privacy is justified by one or more
competing interests. For purposes of this balancing function—and except in the
rare case in which a ‘fundamental’ right of personal autonomy is involved—the
defendant need not present a ‘ “compelling” ’ countervailing interest; only
‘general balancing tests are employed.’ To the extent the plaintiff raises the issue
in response to a claim or defense of competing interests, the defendant may
show that less intrusive alternative means were not reasonably available. A
relevant inquiry in this regard is whether the intrusion was limited, such that no
confidential information was gathered or disclosed.” (Hernandez v. Hillsides, Inc.
(2009) 47 Cal.4th 272, 288 [97 Cal.Rptr.3d 274, 211 P.3d 1063], internal
citations omitted.)
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• Note that whether the countervailing interest needs to be “compelling” or
“legitimate” depends on the status of the defendant. “In general, where the
privacy violation is alleged against a private entity, the defendant is not required
to establish a ‘compelling interest’ but, rather, one that is ‘legitimate’ or
‘important.’ ” (Pettus v. Cole (1996) 49 Cal.App.4th 402, 440 [57 Cal.Rptr.2d
46].)
Secondary Sources
7 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 642–670
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.06 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.16 (Matthew
Bender)
18 California Points and Authorities, Ch. 183, Privacy: State Constitutional Rights,
§ 183.20 (Matthew Bender)
California Civil Practice: Torts §§ 20:18–20:20 (Thomson Reuters)
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1808. Stalking (Civ. Code, § 1708.7)
Revoked June 2015. See Stats 2014, Ch. 853 (AB 1356), substantially
amending Civ. Code, § 1708.7.
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1809. Recording of Confidential Information (Pen. Code, §§ 632,
637.2)
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally [eavesdropped on/recorded]
[name of plaintiff]’s conversation by using an electronic device;
2. That [name of plaintiff] had a reasonable expectation that the
conversation was not being overheard or recorded; [and]
3. That [name of defendant] did not have the consent of all parties to
the conversation to [eavesdrop on/record] it;
4. [That [name of plaintiff] was harmed; and]
5. [That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.]
New September 2003
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing.
Elements 4 and 5 are in brackets because if there is no actual harm, plaintiff can
recover the statutory penalty. If plaintiff is seeking actual damages, such damages
must be proven along with causation.
Sources and Authority
• Recording Confidential Communication. Penal Code section 632(a).
• Civil Action for Recording Confidential Communication. Penal Code section
637.2.
• “[A] conversation is confidential under section 632 if a party to that conversation
has an objectively reasonable expectation that the conversation is not being
overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 776–777
[117 Cal.Rptr.2d 574, 41 P.3d 575].)
• “ ‘A communication must be protected if either party reasonably expects the
communication to be confined to the parties.’ ” (Coulter v. Bank of America
National Trust and Savings Assn. (1994) 28 Cal.App.4th 923, 929 [33
Cal.Rptr.2d 766], internal citation omitted.)
• “While one who imparts private information risks the betrayal of his confidence
by the other party, a substantial distinction has been recognized between the
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CACI No. 1809 RIGHT OF PRIVACY
secondhand repetition of the contents of a conversation and its simultaneous
dissemination to an unannounced second auditor, whether that auditor be a
person or a mechanical device.” (Ribas v. Clark (1985) 38 Cal.3d 355, 360–361
[212 Cal.Rptr. 143, 696 P.2d 637].)
• “We hold that an actionable violation of section 632 does not require disclosure
of a confidential communication to a third party.” (Friddle v. Epstein (1993) 16
Cal.App.4th 1649, 1660 [21 Cal.Rptr.2d 85].)
• “The right to recover [the] statutory minimum accrue[s] at the moment the
privacy act [is] violated.” (Friddle, supra, 16 Cal.App.4th at p. 1661.)
• “If the plaintiff has suffered injuries akin to those for emotional distress, ‘i.e.,
anxiety, embarrassment, humiliation, shame, depression, feelings of
powerlessness, anguish, etc.,’ these are ‘actual’ damages which shall be trebled.”
(Friddle, supra, 16 Cal.App.4th at p. 1660.)
• “Because the right to [the statutory] award accrues at the moment of the
violation, it is not barred by the judicial privilege. . . . Section 637.2 therefore
permits him to pursue his statutory remedy of a civil lawsuit for $3,000, even
though the judicial privilege bars his recovery for the only actual damage he
claims to have suffered.” (Ribas, supra, 38 Cal.3d at p. 365.)
Secondary Sources
7 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 728, 729, 736
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.07[8] (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.283
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.25A (Matthew Bender)
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1810. Distribution of Private Sexually Explicit Materials—Essential
Factual Elements (Civ. Code, § 1708.85)
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] right to privacy. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally distributed by [specify
means, e.g., posting online] [a] [photograph(s)/film(s)/videotape(s)/
recording(s)/[specify other reproduction]] of [name of plaintiff];
2. That [name of plaintiff] did not consent to the distribution of the
[specify, e.g., photographs];
3. That [name of defendant] knew that [name of plaintiff] had a
reasonable expectation that the [e.g., photographs] would remain
private;
4. That the [e.g., photographs] [exposed an intimate body part of
[name of plaintiff]/ [or] showed [name of plaintiff] engaging in an
act of [intercourse/oral copulation/sodomy/ [or] [specify other act
of sexual penetration]];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[An “intimate body part” is any part of the genitals[, and, in the case of
a female, also includes any portion of the breast below the top of the
areola,] that is uncovered or visible through less than fully opaque
clothing.]
New December 2015
Directions for Use
This instruction is for use for an invasion-of-privacy cause of action for the
dissemination of sexually explicit materials. (See Civ. Code, § 1708.85(a).) It may
not be necessary to include the last definitional paragraph as the court may rule as a
matter of law that an intimate body part has been distributed. (See Civ. Code,
§ 1708.85(b).)
The plaintiff’s harm (element 5) is general or special damages as defined in
subdivision (d) of Civil Code section 48a. (Civ. Code, § 1708.85(a).) “General
damages” are damages for loss of reputation, shame, mortification and hurt feelings.
(Civ. Code, § 48a(d)(1).) “Special damages” are essentially economic loss. (Civ.
Code, § 48a(d)(2).)
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Sources and Authority
• Right of Action Against Distributor of Private Sexually Explicit Material. Civil
Code section 1708.85
• General and Special Damages. Civil Code section 48a(d)(1), (2)
Secondary Sources
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.07 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36A
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.25B (Matthew Bender)
1811. Reserved for Future Use
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1812. Comprehensive Computer Data and Access Fraud
Act—Essential Factual Elements (Pen. Code, § 502)
[Name of plaintiff] claims that [name of defendant] has violated the
Comprehensive Computer Data and Access Fraud Act. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] is the [owner/lessee] of the [specify
computer, computer system, computer network, computer program,
and/or data];
2. That [name of defendant] knowingly [specify one or more prohibited
acts from Pen. Code, § 502(c), e.g., accessed [name of plaintiff]’s
data on a computer, computer system, or computer network];
[3. That [name of defendant]’s [specify conduct from Pen. Code,
§ 502(c), e.g., use of the computer services] was without [name of
plaintiff]’s permission;]
[4.] That [name of plaintiff] was harmed; and
[5.] That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New May 2020
Directions for Use
Give this instruction for a claim under the Comprehensive Computer Data Access
and Fraud Act (CDAFA). CDAFA makes civil remedies available to any person who
suffers damage or loss by reason of the commission of certain computer-related
offenses. (Pen. Code, § 502(c), (e)(1).)
For element 1, the court may need to define the technology (e.g., “computer
network,” “computer program or software,” “computer system,” or “data”) or other
statutory term depending on the facts and circumstances of the particular case. (See
Pen. Code, § 502(b) [defining various terms].) For a definition of “access,” see
CACI No. 1813, Definition of “Access.”
Some of the prohibited acts for element 2 may also require that the defendant do
something specific with the access or that the defendant have a specific purpose. For
example, if the defendant allegedly deleted or used plaintiff’s computer data, it must
have been done without permission and either to (a) devise or execute any scheme
or artifice to defraud, deceive, or extort, or (b) wrongfully control or obtain money,
property, or data. (See Pen. Code, § 502(c)(1).) Modify the instruction to include
these elements where required.
Include element 3 regarding lack of permission depending on the violation(s)
alleged. Lack of permission is a required element for violations of subdivisions
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CACI No. 1812 RIGHT OF PRIVACY
(c)(1)–(7) and (c)(9)–(13), but not for violations of subdivisions (c)(8) and (c)(14).
Modify element 3 accordingly. Delete element 3 for violations of the latter
subdivisions.
If plaintiff’s claim involves a “government computer system” or a “public safety
infrastructure computer system” and there is a factual dispute about the type of
computer system involved, this instruction should be modified to add that issue as
an element. (See Pen. Code, § 502(c)(10), (11), (12), (13), and (14).)
Sources and Authority
• Comprehensive Computer Data Access and Fraud Act. Penal Code section 502.
• “Penal Code section 502, subdivision (e)(1) permits a civil action to recover
expenses related to investigating the unauthorized computer access.” (Verio
Healthcare, Inc. v. Superior Court (2016) 3 Cal.App.5th 1315, 1321 fn. 3 [208
Cal.Rptr.3d 436].)
• “Four of the section 502, subdivision (c) offenses include access as an element.
The provision under which [defendant] was charged does not. When different
words are used in adjoining subdivisions of a statute that were enacted at the
same time, that fact raises a compelling inference that a different meaning was
intended. The Legislature’s requirement of unpermitted access in some section
502 offenses and its failure to require that element in other parts of the same
statute raise a strong inference that the subdivisions that do not require
unpermitted access were intended to apply to persons who gain lawful access to
a computer but then abuse that access.” (People v. Childs (2013) 220
Cal.App.4th 1079, 1102 [164 Cal.Rptr.3d 287], internal citations omitted.)
• “[The CDAFA] does not require unauthorized access. It merely requires knowing
access. What makes that access unlawful is that the person ‘without permission
takes, copies, or makes use of’ data on the computer. A plain reading of the
statute demonstrates that its focus is on unauthorized taking or use of
information.” (United States v. Christensen (9th Cir. 2015) 828 F.3d 763, 789,
original italics, internal citations omitted.)
• “Because [defendant] had implied authorization to access [plaintiff]’s computers,
it did not, at first, violate the [CDAFA]. But when [plaintiff] sent the cease and
desist letter, [defendant], as it conceded, knew that it no longer had permission
to access [plaintiff]’s computers at all. [Defendant], therefore, knowingly
accessed and without permission took, copied, and made use of [plaintiff]’s
data.” (Facebook, Inc. v. Power Ventures, Inc. (9th Cir. 2016) 844 F.3d 1058,
1069.)
• “[T]aking data using a method prohibited by the applicable terms of use, when
the taking itself generally is permitted, does not violate the CDAFA.” (Oracle
USA, Inc. v. Rimini Street, Inc. (9th Cir. 2018) 879 F.3d 948, 962, reversed in
part on other grounds by Rimini Street, Inc. v. Oracle USA, Inc. (2019) — U.S.
— [139 S.Ct. 873, 881, 203 L.Ed.2d 180], original italics.)
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Secondary Sources
5 Witkin, California Criminal Law (4th ed. 2012) Crimes Against Property, § 229 et
seq.
31 California Forms of Pleading and Practice, Ch. 349, Literary Property and
Copyright, § 349.41[5] (Matthew Bender)
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1813. Definition of “Access” (Pen. Code, § 502(b)(1))
The term “access” means to gain entry to, instruct, cause input to, cause
output from, cause data processing with, or communicate with the
logical, arithmetical, or memory function resources of a computer,
computer system, or computer network.
A person can access a computer, computer system, or computer network
in different ways. For example, access can be accomplished by sitting
down at a computer and using the mouse and keyboard, or by using a
wireless network or some other method or tool to gain remote entry.
New May 2020
Directions for Use
This instruction should be read with CACI No. 1812, Comprehensive Computer
Data and Access Fraud Act—Essential Factual Elements, for claims that require that
the defendant “access” a computer, computer system, or computer network. (See
Pen. Code, § 502 (c)(1), (2), (4), (7), and (11).)
Sources and Authority
• “Access” Defined. Penal Code section 502(b)(1).
• “Underscoring that ‘accessing’ a computer’s ‘logical, arithmetical, or memory
function’ is different from the ordinary, everyday use of a computer to which
people are accustomed when they speak of ‘using’ a computer, another
subdivision criminalizes ‘us[ing] or caus[ing] to be used computer services’
without permission. Principles of statutory interpretation obligate us to give
different meanings to the words ‘use’ and ‘access’ in order to avoid rendering
either word redundant.” (Chrisman v. City of Los Angeles (2007) 155
Cal.App.4th 29, 34 [65 Cal.Rptr.3d 701], internal citation and footnote omitted.)
• “Public access computer terminals are increasingly common in the offices of
many governmental bodies and agencies, from courthouses to tax assessors. We
believe subdivision (c)(7) was designed to criminalize unauthorized access to the
software and data in such systems, even where none of the other illegal activities
listed in subdivision (c) have occurred.” (People v. Lawton (1996) 48
Cal.App.4th Supp. 11, 15 [56 Cal.Rptr.2d 521].)
Secondary Sources
5 Witkin, California Criminal Law (4th ed. 2012) Crimes Against Property, § 229 et
seq.
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1814. Damages for Investigating Violations of Comprehensive
Computer Data and Access Fraud Act (Pen. Code, § 502(e)(1))
To recover damages for money spent to investigate or verify whether
[name of plaintiff]’s computer system, computer network, computer
program, or data was or was not altered, damaged, or deleted by [specify
wrongful conduct under section 502(c) that led to accessing the plaintiff’s
computer system, computer network, or computer program], [name of
plaintiff] must prove the amount of money reasonably and necessarily
spent to conduct such an investigation.
New May 2020; Revised November 2020
Directions for Use
Give this instruction for violations of the Comprehensive Computer Data and Access
Fraud Act in which there is evidence that the plaintiff spent money to investigate or
verify the defendant’s wrongful conduct. (See Pen. Code, § 502; CACI No. 1812,
Comprehensive Computer Data and Access Fraud Act—Essential Factual Elements.)
In some cases, it may be appropriate to tailor the instruction to specify the
technology or data at issue (e.g., the name of a computer program or the plaintiff’s
data files).
For other damages instructions, see the Damages series, CACI No. 3900 et seq.
Punitive or exemplary damages are available for willful violations. (Pen. Code,
§ 502(e)(4).) For instructions on punitive damages, see CACI Nos. 3940–3949.
Sources and Authority
• Compensatory Damages. Penal Code section 502(e)(1).
Secondary Sources
5 Witkin, California Criminal Law (4th ed. 2012) Crimes Against Property, § 229 et
seq.
31 California Forms of Pleading and Practice, Ch. 349, Literary Property and
Copyright, § 349.91 (Matthew Bender)
1815–1819. Reserved for Future Use
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1820. Damages
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
The amount of damages must include an award for all harm that was
caused by [name of defendant], even if the particular harm could not have
been anticipated.
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. [Mental suffering/anxiety/humiliation/emotional distress;]
2. [Harm to reputation and loss of standing in the community;]
3. [The commercial value of [name of plaintiff]’s name or likeness;]
4. [Insert other applicable item of damage.]
No fixed standard exists for deciding the amount of damages for [insert
item of mental or emotional distress]. You must use your judgment to
decide a reasonable amount based on the evidence and your common
sense.
[To recover for future [insert item of mental or emotional distress], [name
of plaintiff] must prove that [he/she/nonbinary pronoun] is reasonably
certain to suffer that harm.]
New September 2003
Directions for Use
This instruction is not intended for cases involving invasion of privacy by false
light. Damages for false light are similar to the damages available in defamation
(see CACI Nos. 1700 to 1705).
Item 2 will probably not be relevant in all cases. It will have particular application
to the aspect of this tort involving the publication of private facts. (See Diaz v.
Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 137 [188 Cal.Rptr. 762].)
Item 3 is intended only for cases involving violation of privacy by appropriation.
Sources and Authority
• Restatement Second of Torts, section 652H provides:
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One who has established a cause of action for invasion of his privacy is entitled
to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind
that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
Note that this Restatement section has not been cited by any published
California cases.
• “Damages recoverable in California for invasion of a privacy right were
discussed in detail in Fairfield v. American Photocopy Equipment Co. The Court
of Appeal declared that because the interest involved privacy, the damages
flowing from its invasion logically would include an award for mental suffering
and anguish. Fairfield was an appropriation case, but the principles it laid down
concerning damage awards in privacy cases relied on a body of California law
which had already recognized violation of the right of privacy as a tort.” (Miller
v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1484 [232 Cal.Rptr.
668], internal citation omitted.)
• “The elements of emotional distress damages, i.e., anxiety, embarrassment,
humiliation, shame, depression, feelings of powerlessness, anguish, etc., would
thus be subjects of legitimate inquiry by a jury in the action before us, taking
into account all of the consequences and events which flowed from the
actionable wrong.” (Miller, supra, 187 Cal.App.3d at p. 1485.)
• “The actual injury involved herein is not limited to out-of-pocket loss. It
generally includes ‘impairment of reputation and standing in the community,
personal humiliation, and mental anguish and suffering.’ ” (Diaz, supra, 139
Cal.App.3d at p. 137, internal citation omitted.)
• In Time, Inc. v. Hill (1967) 385 U.S. 374, 384, fn. 9 [87 S.Ct. 534, 17 L.Ed.2d
456], the court stated: “In the ‘right of privacy’ cases the primary damage is the
mental distress from having been exposed to public view, although injury to
reputation may be an element bearing upon such damage.”
• “There is a distinction between causes of action for invasion of privacy and
defamation with regard to the respective interests protected and compensated by
each. ‘The gist of a cause of action in a privacy case is not injury to the
character or reputation but a direct wrong of a personal character resulting in
injury to the feelings without regard to any effect which the publication may
have on the property, business, pecuniary interest, or the standing of the
individual in the community. The right of privacy concerns one’s own peace of
mind, while the right of freedom from defamation concerns primarily one’s
reputation. The injury is mental and subjective.’ ” (Selleck v. Globe Int’l, Inc.
(1985) 166 Cal.App.3d 1123, 1135 [212 Cal.Rptr. 838], internal citations
omitted.)
• “California recognizes the right to profit from the commercial value of one’s
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identity as an aspect of the right of publicity.” (Gionfriddo v. Major League
Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307], internal
citations omitted.)
• “What may have originated as a concern for the right to be left alone has
become a tool to control the commercial use and, thus, protect the economic
value of one’s name, voice, signature, photograph, or likeness.” (KNB
Enterprises v. Matthews (2000) 78 Cal.App.4th 362, 366 [92 Cal.Rptr.2d 713].)
• “The first type of appropriation is the right of publicity . . . which is ‘in essence
that the reaction of the public to name and likeness, which may be fortuitous or
which may be managed or planned, endows the name and likeness of the person
involved with commercially exploitable opportunities.’ The other is the
appropriation of the name and likeness that brings injury to the feelings, that
concerns one’s own peace of mind, and that is mental and subjective.” (Dora v.
Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 541–542 [18 Cal.Rptr.2d 790],
internal citations omitted.)
Secondary Sources
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.13 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.46 (Matthew
Bender)
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1821. Damages for Use of Name or Likeness (Civ. Code § 3344(a))
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun]
damages. [Name of plaintiff] does not have to prove the exact amount of
damages that will provide reasonable compensation for the harm.
However, you must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. [Humiliation, embarrassment, and mental distress, including any
physical symptoms;]
2. [Harm to [name of plaintiff]’s reputation;] [and]
3. [Insert other item(s) of claimed harm].
In addition, [name of plaintiff] may recover any profits that [name of
defendant] received from the use of [name of plaintiff]’s
[name/voice/signature/photograph/likeness] [that have not already been
taken into account with regard to the above damages]. To establish the
amount of these profits you must:
1. Determine the gross, or total, revenue that [name of defendant]
received from the use;
2. Determine the expenses that [name of defendant] had in obtaining
the gross revenue; and
3. Deduct [name of defendant]’s expenses from the gross revenue.
[Name of plaintiff] must prove the amount of gross revenue, and [name of
defendant] must prove the amount of expenses.
New September 2003; Revised June 2012, December 2012
Directions for Use
Under Civil Code section 3344(a), an injured party may recover either actual
damages or $750, whichever is greater, as well as profits from the unauthorized use
that were not taken into account in calculating actual damages. (Orthopedic Systems,
Inc. v. Schlein (2011) 202 Cal.App.4th 529, 547 [135 Cal.Rptr.3d 200].) If no actual
damages are sought, the first part of the instruction may be deleted or modified to
simply instruct the jury to award $750 if it finds liability.
The plaintiff might claim that the plaintiff would have earned the same profits that
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the defendant wrongfully earned. In such a case, to avoid a double recovery, the
advisory committee recommends computing damages to recover the defendant’s
wrongful profits separately from actual damages, that is, under the second part of
the instruction and not under actual damages item 3 (“other item(s) of claimed
harm”). See also CACI No. VF-1804, Privacy—Use of Name or Likeness. Give the
bracketed phrase in the paragraph that introduces the second part of the instruction
if the plaintiff alleges lost profits that are different from the defendant’s wrongful
profits and that are claimed under actual damages item 3.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “[Plaintiff] alleges, and submits evidence to show, that he was injured
economically because the ad will make it difficult for him to endorse other
automobiles, and emotionally because people may be led to believe he has
abandoned his current name and assume he has renounced his religion. These
allegations suffice to support his action. Injury to a plaintiff’s right of publicity is
not limited to present or future economic loss, but ‘may induce humiliation,
embarrassment, and mental distress.’ ” (Abdul-Jabbar v. General Motors Corp.
(9th Cir. 1996) 85 F.3d 407, 416, internal citation omitted.)
• “The statutory language of section 3344 is unambiguous—the plaintiff bears the
burden of presenting proof of the gross revenue attributable to the defendant’s
unauthorized use of the plaintiff’s likeness, and the defendant must then prove its
deductible expenses. CACI No. 1821 mirrors the language of section 3344:
‘[plaintiff] must prove the amount of gross revenue, and [. . . defendant] must
prove the amount of expenses.’ (CACI No. 1821.)” (Olive v. General Nutrition
Centers, Inc. (2018) 30 Cal.App.5th 804, 814 [242 Cal.Rptr.3d 15], internal
citation omitted.)
• “CACI No. 1821 adequately explained the applicable law to the jury.” (Olive,
supra, 30 Cal.App.5th at p. 815.)
• “We can conceive no rational basis for the Legislature to limit the $750 as an
alternative to all other damages, including profits. If someone profits from the
unauthorized use of another’s name, it makes little sense to preclude the injured
party from recouping those profits because he or she is entitled to statutory
damages as opposed to actual damages. Similar reasoning appears to be reflected
in the civil jury instructions for damages under section 3344, which provides: ‘If
[name of plaintiff] has not proved the above damages, or has proved an amount
of damages less than $750, then you must award [him/her] $750. [¶] In addition,
[name of plaintiff] may recover any profits that [name of defendant] received
from the use of [name of plaintiff]’s [name . . . ] [that have not already been
taken into account in computing the above damages].’ (CACI No. 1821, italics
omitted.).” (Orthopedic Systems, Inc., supra, 202 Cal.App.4th at p. 546.)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1715–1724
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Invasion Of
Privacy, ¶¶ 5:1116–5:1118 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.13 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.35 (Matthew Bender)
California Civil Practice, Torts § 20:17 (Thomson Reuters)
1822–1899. Reserved for Future Use
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VF-1800. Privacy—Intrusion Into Private Affairs
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] have a reasonable expectation of privacy in
[specify place or other circumstance]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] intentionally intrude in [specify place or
other circumstance]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Would [name of defendant]’s intrusion be highly offensive to a
reasonable person?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1800, Intrusion Into Private Affairs.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1801. Privacy—Public Disclosure of Private Facts
We answer the questions submitted to us as follows:
1. Did [name of defendant] publicize private information concerning
[name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Would a reasonable person in [name of plaintiff]’s position
consider the publicity highly offensive?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know or act with reckless disregard of the
fact that a reasonable person in [name of plaintiff]’s position
would consider the publicity highly offensive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the private information of legitimate public concern [or did
it have a substantial connection to a matter of legitimate public
concern]?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
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[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1801, Public Disclosure of Private Facts.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
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forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1802. Privacy—False Light
We answer the questions submitted to us as follows:
1. Did [name of defendant] publicize information or material that
showed [name of plaintiff] in a false light?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Would a reasonable person in [name of plaintiff]’s position
consider the false light created by the publication to be highly
offensive?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Is there clear and convincing evidence that [name of defendant]
either knew the publication would create a false impression about
[name of plaintiff] or acted with reckless disregard for the truth?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
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[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1802, False Light.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the conduct does not involve a matter of public concern, then substitute the
following for question number 3: “Was [name of defendant] negligent in
determining the truth of the information or whether a false impression would be
created by its publication?” If the conduct involved material that is not defamatory
on its face, the following question should be added to this form: “Did [name of
plaintiff] sustain harm to [his/her/nonbinary pronoun] property, business, profession,
or occupation [including money spent as a result of the statements(s)]?”
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
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forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1803. Privacy—Appropriation of Name or Likeness
We answer the questions submitted to us as follows:
1. Did [name of defendant] use [name of plaintiff]’s name, likeness, or
identity?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] consent to the use of [his/her/nonbinary
pronoun] name, likeness, or identity?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] gain a commercial benefit [or some other
advantage] by using [name of plaintiff]’s name, likeness, or
identity?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016,
November 2017
Directions for Use
This verdict form is based on CACI No. 1803, Appropriation of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
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findings that are required in order to calculate the amount of prejudgment interest.
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VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344)
We answer the questions submitted to us as follows:
1. Did [name of defendant] knowingly use [name of plaintiff]’s [name/
voice/signature/photograph/likeness] on merchandise or to
advertise or sell products or services?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] have [name of plaintiff]’s consent?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s use of [name of plaintiff]’s [name/voice/
signature/photograph/likeness] directly connected to [name of
defendant]’s commercial purpose?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[5. Did [name of plaintiff] suffer any actual damages or is [name of
plaintiff] reasonably likely to suffer any actual damages in the
future?
[5. Yes No
[5. If your answer to question 5 is yes, then answer questions 6 and
7. If you answered no, answer question 7.]
6. What are [name of plaintiff]’s actual damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [humiliation/embarrassment/
mental distress including any physical symptoms:] $ ]
[d. Future noneconomic loss, including
[humiliation/embarrassment/mental distress including any
physical symptomns:] $ ]
[d. TOTAL ACTUAL DAMAGES $
[7. Did [name of defendant] receive any profits from the use of [name
of plaintiff]’s [name/voice/signature/photograph/likeness] that you
did not include under [name of plaintiff]’s actual damages for lost
profits in Question 6 above?
[7. Yes No
[7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What amount of those profits did [name of defendant] receive from
the use of [name of plaintiff]’s [name/voice/signature/photograph/
likeness]?
8. TOTAL PROFITS RECEIVED BY DEFENDANT $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
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verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, June 2012,
December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 1804A, Use of Name or Likeness, and
CACI No. 1821, Damages for Use of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under Civil Code section 3344(a), the plaintiff may recover actual damages or $750,
whichever is greater. The plaintiff may also recover any profits that the defendant
received from the unauthorized use that were not taken into account in calculating
actual damages. (Orthopedic Systems Inc. v. Schlein (2011) 202 Cal.App.4th 529,
547 [135 Cal.Rptr.3d 200].) The advisory committee recommends calculating the
defendant’s profits to be disgorged separately from actual damages. Questions 5
through 8 take the jury through the recommended course. If no actual damages are
sought, question 5 may be omitted and the jury instructed to enter $750 as the total
actual damages in question 6. If the jury awards actual damages of less than $750,
the court should raise the amount to $750. If there is no claim to disgorge the
defendant’s wrongful profits, questions 7 and 8 may be omitted.
Additional questions may be necessary if the facts implicate Civil Code section
3344(d) (see Directions for Use under CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign).
If specificity is not required, users do not have to itemize all the actual damages
listed in question 6 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1805–VF-1806. Reserved for Future Use
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VF-1807. Privacy—Recording of Confidential Information (Pen.
Code, §§ 632, 637.2)
We answer the questions submitted to us as follows:
1. Did [name of defendant] intentionally [eavesdrop on/record] [name
of plaintiff]’s conversation by using an electronic device?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] have a reasonable expectation that the
conversation was not being overheard or recorded?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] have the consent of all parties to the
conversation to [eavesdrop on/record] it?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1809, Recording of Confidential
Information.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 4 and 5 do not have to be read if the plaintiff is seeking the statutory
penalty only.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
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814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1808–VF-1899. Reserved for Future Use
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FRAUD OR DECEIT
1900. Intentional Misrepresentation
1901. Concealment
1902. False Promise
1903. Negligent Misrepresentation
1904. Opinions as Statements of Fact
1905. Definition of Important Fact/Promise
1906. Misrepresentations Made to Persons Other Than the Plaintiff
1907. Reliance
1908. Reasonable Reliance
1909. Reserved for Future Use
1910. Real Estate Seller’s Nondisclosure of Material Facts
1911–1919. Reserved for Future Use
1920. Buyer’s Damages for Purchase or Acquisition of Property
1921. Buyer’s Damages for Purchase or Acquisition of Property—Lost Profits
1922. Seller’s Damages for Sale or Exchange of Property
1923. Damages—“Out of Pocket” Rule
1924. Damages—“Benefit of the Bargain” Rule
1925. Affirmative Defense—Statute of Limitations—Fraud or Mistake
1926–1999. Reserved for Future Use
VF-1900. Intentional Misrepresentation
VF-1901. Concealment
VF-1902. False Promise
VF-1903. Negligent Misrepresentation
VF-1904–VF-1999. Reserved for Future Use
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1900. Intentional Misrepresentation
[Name of plaintiff] claims that [name of defendant] made a false
representation that harmed [him/her/nonbinary pronoun/it]. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] represented to [name of plaintiff] that a
fact was true;
2. That [name of defendant]’s representation was false;
3. That [name of defendant] knew that the representation was false
when [he/she/nonbinary pronoun] made it, or that
[he/she/nonbinary pronoun] made the representation recklessly and
without regard for its truth;
4. That [name of defendant] intended that [name of plaintiff] rely on
the representation;
5. That [name of plaintiff] reasonably relied on [name of defendant]’s
representation;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s
representation was a substantial factor in causing
[his/her/nonbinary pronoun/its] harm.
New September 2003; Revised December 2012, December 2013
Directions for Use
Give this instruction in a case in which it is alleged that the defendant made an
intentional misrepresentation of fact. (See Civ. Code, § 1710(1).) If element 5 is
contested, give CACI No. 1907, Reliance, and CACI No. 1908, Reasonable
Reliance. If it is disputed that a representation was made, the jury should be
instructed that “a representation may be made orally, in writing, or by nonverbal
conduct.” (See Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567 [54
Cal.Rptr.2d 468].)
The representation must ordinarily be an affirmation of fact, as opposed to an
opinion. (See Cohen v. S&S Construction Co. (1983) 151 Cal.App.3d 941, 946 [201
Cal.Rptr. 173].) Opinions are addressed in CACI No. 1904, Opinions as Statements
of Fact.
Sources and Authority
• Actionable Deceit. Civil Code section 1709.
• Intentional Misrepresentation. Civil Code section 1710(1).
• Fraud in Contract Formation. Civil Code section 1572.
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• “The elements of fraud that will give rise to a tort action for deceit are: “ ‘(a)
misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.’ ” (Engalla v. Permanente
Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [64 Cal.Rptr.2d 843, 938 P.2d
903], internal quotation marks omitted.)
• “A complaint for fraud must allege the following elements: (1) a knowingly false
representation by the defendant; (2) an intent to deceive or induce reliance; (3)
justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by
Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [52 Cal.Rptr.2d
650] [combining misrepresentation and scienter as a single element].)
• “Puffing,” or sales talk, is generally considered opinion, unless it involves a
representation of product safety. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 112
[120 Cal.Rptr. 681, 534 P.2d 377].)
• “Fraud is an intentional tort; it is the element of fraudulent intent, or intent to
deceive, that distinguishes it from actionable negligent misrepresentation and
from nonactionable innocent misrepresentation. It is the element of intent which
makes fraud actionable, irrespective of any contractual or fiduciary duty one
party might owe to the other.” (City of Atascadero v. Merrill Lynch, Pierce,
Fenner & Smith (1998) 68 Cal.App.4th 445, 482 [80 Cal.Rptr.2d 329], internal
citations omitted.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]he trial court failed to consider that a cause of action based in fraud may
arise from conduct that is designed to mislead, and not only from verbal or
written statements.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California
(2016) 245 Cal.App.4th 821, 839 [199 Cal.Rptr.3d 901].)
• “[A] cause of action for misrepresentation requires an affirmative statement, not
an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089,
1102 [223 Cal.Rptr.3d 458].)
• “ ‘[F]alse representations made recklessly and without regard for their truth in
order to induce action by another are the equivalent of misrepresentations
knowingly and intentionally uttered.’ ” (Engalla, supra, 15 Cal.4th at p. 974,
quoting Yellow Creek Logging Corp. v. Dare (1963) 216 Cal.App.2d 50, 55 [30
Cal.Rptr. 629].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “A ‘complete causal relationship’ between the fraud or deceit and the plaintiff’s
damages is required. . . . Causation requires proof that the defendant’s conduct
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was a “ ‘substantial factor’ ” in bringing about the harm to the plaintiff.”
(Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658],
internal citations omitted.)
• “ ‘ “Misrepresentation, even maliciously committed, does not support a cause of
action unless the plaintiff suffered consequential damages.” ’ ” [Citation.]’
[Citation.] Indeed, ‘ “ ‘[a]ssuming . . . a claimant’s reliance on the actionable
misrepresentation, no liability attaches if the damages sustained were otherwise
inevitable or due to unrelated causes.’ [Citation.]” [Citation.] [If the defrauded
plaintiff would have suffered the alleged damage even in the absence of the
fraudulent inducement, causation cannot be alleged and a fraud cause of action
cannot be sustained.’ ” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982,
1008 [198 Cal.Rptr.3d 715].)
• “The law is well established that actionable misrepresentations must pertain to
past or existing material facts. Statements or predictions regarding future events
are deemed to be mere opinions which are not actionable.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469 [169 Cal.Rptr.3d 619], internal
citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 294, 883, 939, 943,
944, 949
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.02, 40.05 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.19
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.80 et seq.
(Matthew Bender)
California Civil Practice: Torts § 22:12 (Thomson Reuters)
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1901. Concealment
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] concealed certain information. To establish
this claim, [name of plaintiff] must prove all of the following:
[1. (a) That [name of defendant] and [name of plaintiff] were [insert
type of fiduciary relationship, e.g., “business partners”]; and
[1. (b) That [name of defendant] intentionally failed to disclose certain
facts to [name of plaintiff];]
[1. [or]
[1. That [name of defendant] disclosed some facts to [name of plaintiff]
but intentionally failed to disclose [other/another] fact[s], making
the disclosure deceptive;]
[1. [or]
[1. That [name of defendant] intentionally failed to disclose certain
facts that were known only to [him/her/nonbinary pronoun/it] and
that [name of plaintiff] could not have discovered;]
[1. [or]
[1. That [name of defendant] prevented [name of plaintiff] from
discovering certain facts;]
2. That [name of plaintiff] did not know of the concealed fact[s];
3. That [name of defendant] intended to deceive [name of plaintiff] by
concealing the fact[s];
4. That had the omitted information been disclosed, [name of
plaintiff] reasonably would have behaved differently;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s concealment was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised October 2004, December 2012, June 2014, June
2015
Directions for Use
Give this instruction if it is alleged that the defendant concealed certain information
to the detriment of the plaintiff. (See Civ. Code, § 1710(3).) Element 2 may be
deleted if the third option for element 1 is selected.
Regarding element 1, before there can be liability for concealment, there must
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usually be a duty to disclose arising from a fiduciary or confidential relationship
between the parties. However, in transactions that do not involve fiduciary or
confidential relations, a duty to disclose material facts may arise in at least three
instances: (1) the defendant makes representations but does not disclose facts that
materially qualify the facts disclosed, or that render his disclosure likely to mislead
(option 2); (2) the facts are known or accessible only to defendant, and defendant
knows they are not known to or reasonably discoverable by the plaintiff (option 3);
(3) the defendant actively conceals discovery from the plaintiff (option 4). (See
Warner Constr. Corp. v. L.A. (1970) 2 Cal.3d 285, 294 [85 Cal. Rptr. 444, 466 P.2d
996].) For the second, third, and fourth options, if the defendant asserts that there
was no relationship based on a transaction giving rise to a duty to disclose, the jury
should also be instructed to determine whether the requisite relationship existed.
(See Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187 [175
Cal.Rptr.3d 820].)
If element 4 is contested, give CACI No. 1907, Reliance, and CACI No. 1908,
Reasonable Reliance. To avoid any possible confusion created by using “rely on the
concealment” (see Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23
Cal.Rptr.2d 101, 858 P.2d 568].), CACI Nos. 1907 and 1908 may be modified to
replace the words “rely,” “relied,” and “reliance” with language based on “behave
differently” from element 4. It must have been reasonable for the plaintiff to have
behaved differently had the omitted information been disclosed. (See Hoffman,
supra, 228 Cal.App.4th at p. 1194 [concealment case].)
Sources and Authority
• Concealment. Civil Code section 1710(3).
• “[T]he elements of an action for fraud and deceit based on a concealment are:
(1) the defendant must have concealed or suppressed a material fact, (2) the
defendant must have been under a duty to disclose the fact to the plaintiff, (3)
the defendant must have intentionally concealed or suppressed the fact with the
intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the
fact and would not have acted as he did if he had known of the concealed or
suppressed fact, and (5) as a result of the concealment or suppression of the fact,
the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc.
(2011) 198 Cal.App.4th 230, 248 [129 Cal.Rptr.3d 874].)
• “A duty to speak may arise in four ways: it may be directly imposed by statute
or other prescriptive law; it may be voluntarily assumed by contractual
undertaking; it may arise as an incident of a relationship between the defendant
and the plaintiff; and it may arise as a result of other conduct by the defendant
that makes it wrongful for him to remain silent.” (SCC Acquisitions, Inc. v.
Central Pacific Bank (2012) 207 Cal.App.4th 859, 860 [143 Cal.Rptr.3d 711].)
• “In transactions which do not involve fiduciary or confidential relations, a cause
of action for non-disclosure of material facts may arise in at least three
instances: (1) the defendant makes representations but does not disclose facts
which materially qualify the facts disclosed, or which render his disclosure likely
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to mislead; (2) the facts are known or accessible only to defendant, and
defendant knows they are not known to or reasonably discoverable by the
plaintiff; (3) the defendant actively conceals discovery from the plaintiff.”
(Warner Construction Corp., supra, 2 Cal.3d at p. 294, footnotes omitted.)
• “[O]ther than the first instance, in which there must be a fiduciary relationship
between the parties, ‘the other three circumstances in which nondisclosure may
be actionable: presuppose[] the existence of some other relationship between the
plaintiff and defendant in which a duty to disclose can arise. . . . “[W]here
material facts are known to one party and not to the other, failure to disclose
them is not actionable fraud unless there is some relationship between the parties
which gives rise to a duty to disclose such known facts.” [Citation.]’ A
relationship between the parties is present if there is ‘some sort of transaction
between the parties. [Citations.] Thus, a duty to disclose may arise from the
relationship between seller and buyer, employer and prospective employee,
doctor and patient, or parties entering into any kind of contractual agreement.’ ”
(Hoffman, supra, 228 Cal.App.4th at p. 1187, original italics, internal citations
omitted.)
• “Even if a fiduciary relationship is not involved, a non-disclosure claim arises
when the defendant makes representations but fails to disclose additional facts
which materially qualify the facts disclosed, or which render the disclosure likely
to mislead.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 666 [51
Cal.Rptr.2d 907], internal citations omitted.)
• “ ‘[T]he rule has long been settled in this state that although one may be under
no duty to speak as to a matter, “if he undertakes to do so, either voluntarily or
in response to inquiries, he is bound not only to state truly what he tells but also
not to suppress or conceal any facts within his knowledge which materially
qualify those stated. If he speaks at all he must make a full and fair
disclosure.” ’ ” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6
Cal.App.4th 603, 613 [7 Cal.Rptr.2d 859].)
• “While a reasonable jury could, and in this case did, find these warnings
inadequate for product liability purposes given [defendant]’s knowledge of the
risk of NFCI’s, these statements are not ‘misleading “half-truths” ’ that give rise
to a duty to disclose in the absence of an otherwise sufficient relationship or
transaction. To hold otherwise would unduly conflate two distinct areas of law,
products liability and fraud, and transform every instance of inadequate product
warning into a potential claim for fraud.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 313-314 [213 Cal.Rptr.3d 82].)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
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(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “[P]laintiffs argue that actual reliance cannot logically be an element of a cause
of action for deceit based on an omission because it is impossible to demonstrate
reliance on something that one was not told. In support of the argument,
plaintiffs cite Affıliated Ute Citizens v. United States, supra, 406 U.S. 128
(Ute) . . . , Interpreting Rule 10b-5, the high court held that ‘positive proof of
reliance is not a prerequisite to recovery’ in a case ‘involving primarily a failure
to disclose . . . .’ [¶] Contrary to plaintiffs’ assertion, it is not logically
impossible to prove reliance on an omission. One need only prove that, had the
omitted information been disclosed, one would have been aware of it and
behaved differently.” (Mirkin, supra, 5 Cal.4th at p. 1093.)
• “The fact that a false statement may be obviously false to those who are trained
and experienced does not change its character, nor take away its power to
deceive others less experienced. There is no duty resting upon a citizen to
suspect the honesty of those with whom he [or she] transacts business. Laws are
made to protect the trusting as well as the suspicious. [T]he rule of caveat
emptor should not be relied upon to reward fraud and deception.” (Boschma,
supra, 198 Cal.App.4th at p. 249, original italics.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 912–919
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 11-E,
Damages For Fraud, ¶ 11:354 (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[2][b] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.26
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.70 et seq.
(Matthew Bender)
California Civil Practice: Torts § 22:16 (Thomson Reuters)
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1902. False Promise
[Name of plaintiff] claims [he/she/nonbinary pronoun] was harmed because
[name of defendant] made a false promise. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] made a promise to [name of plaintiff];
2. That [name of defendant] did not intend to perform this promise
when [he/she/nonbinary pronoun] made it;
3. That [name of defendant] intended that [name of plaintiff] rely on
this promise;
4. That [name of plaintiff] reasonably relied on [name of defendant]’s
promise;
5. That [name of defendant] did not perform the promised act;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s promise
was a substantial factor in causing [his/her/nonbinary pronoun/its]
harm.
New September 2003; Revised December 2012, December 2013
Directions for Use
Give this instruction in a case in which it is alleged that the defendant made a
promise without any intention of performing it. (See Civ. Code, § 1710(4).) If
element 4 is contested, give CACI No. 1907, Reliance, and CACI No. 1908,
Reasonable Reliance.
Sources and Authority
• Deceit. Civil Code section 1710.
• “ ‘ “Promissory fraud” is a subspecies of fraud and deceit. A promise to do
something necessarily implies the intention to perform; hence, where a promise
is made without such intention, there is an implied misrepresentation of fact that
may be actionable fraud.’ ” (Engalla v. Permanente Medical Group, Inc. (1997)
15 Cal.4th 951, 973–974 [64 Cal.Rptr.2d 843, 938 P.2d 903], internal citations
omitted.)
• “Under Civil Code section 1709, one is liable for fraudulent deceit if he
‘deceives another with intent to induce him to alter his position to his injury or
risk . . . .’ Section 1710 of the Civil Code defines deceit for the purposes of
Civil Code section 1709 as, inter alia, ‘[a] promise, made without any intention
of performing it.’ ‘ “The elements of fraud, which give rise to the tort action for
deceit, are (a) misrepresentation (false representation, concealment, or
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nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e.,
to induce reliance; (d) justifiable reliance; and (e) resulting damage.”
[Citations.]’ Each element must be alleged with particularity.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1059–1060 [141 Cal.Rptr.3d 142], internal
citations omitted.)
• “A promise of future conduct is actionable as fraud only if made without a
present intent to perform. ‘A declaration of intention, although in the nature of a
promise, made in good faith, without intention to deceive, and in the honest
expectation that it will be fulfilled, even though it is not carried out, does not
constitute a fraud.’ Moreover, ‘ “something more than nonperformance is
required to prove the defendant’s intent not to perform his promise.” . . . [I]f
plaintiff adduces no further evidence of fraudulent intent than proof of
nonperformance of an oral promise, he will never reach a jury.’ ” (Magpali v.
Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [55 Cal.Rptr.2d 225],
internal citations omitted.)
• “[I]n a promissory fraud action, to sufficiently allege[] defendant made a
misrepresentation, the complaint must allege (1) the defendant made a
representation of intent to perform some future action, i.e., the defendant made a
promise, and (2) the defendant did not really have that intent at the time that the
promise was made, i.e., the promise was false.” (Beckwith, supra, 205
Cal.App.4th at p. 1060.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith, supra,
205 Cal.App.4th at p. 1061.)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “An action for promissory fraud may lie where a defendant fraudulently induces
the plaintiff to enter into a [written] contract. [Citations.] In such cases, the
plaintiff’s claim does not depend upon whether the defendant’s promise is
ultimately enforceable as a contract.” (Austin v. Medicis (2018) 21 Cal.App.5th
577, 588 [230 Cal.Rptr.3d 528].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 899–904
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][a] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.12
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.30 et seq.
(Matthew Bender)
California Civil Practice: Torts § 22:20 (Thomson Reuters)
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1903. Negligent Misrepresentation
[Name of plaintiff] claims [he/she/nonbinary pronoun/it] was harmed
because [name of defendant] negligently misrepresented a fact. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] represented to [name of plaintiff] that a
fact was true;
2. That [name of defendant]’s representation was not true;
3. That [although [name of defendant] may have honestly believed
that the representation was true,] [[name of
defendant]/he/she/nonbinary pronoun] had no reasonable grounds
for believing the representation was true when [he/she/nonbinary
pronoun] made it;
4. That [name of defendant] intended that [name of plaintiff] rely on
this representation;
5. That [name of plaintiff] reasonably relied on [name of defendant]’s
representation;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s
representation was a substantial factor in causing
[his/her/nonbinary pronoun/its] harm.
New September 2003; Revised December 2009, December 2013
Directions for Use
Give this instruction in a case in which it is alleged that the defendant made certain
representations with no reason to believe that they were true. (See Civ. Code,
§ 1710(2).) If element 5 is contested, give CACI No. 1907, Reliance, and CACI No.
1908, Reasonable Reliance.
If both negligent misrepresentation and intentional misrepresentation are alleged in
the alternative, give both this instruction and CACI No.1900, Intentional
Misrepresentation. If only negligent misrepresentation is alleged, the bracketed
reference to the defendant’s honest belief in the truth of the representation in
element 3 may be omitted. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,
407–408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)
Sources and Authority
• Negligent Misrepresentation. Civil Code section 1710.
• “Negligent misrepresentation is a separate and distinct tort, a species of the tort
of deceit. ‘Where the defendant makes false statements, honestly believing that
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they are true, but without reasonable ground for such belief, he may be liable for
negligent misrepresentation, a form of deceit.’ ” (Bily, supra, 3 Cal.4th at p. 407,
internal citations omitted.)
• “This is not merely a case where the defendants made false representations of
matters within their personal knowledge which they had no reasonable grounds
for believing to be true. Such acts clearly would constitute actual fraud under
California law. In such situations the defendant believes the representations to be
true but is without reasonable grounds for such belief. His liability is based on
negligent misrepresentation which has been made a form of actionable deceit.
On the contrary, in the instant case, the court found that the defendants did not
believe in the truth of the statements. Where a person makes statements which
he does not believe to be true, in a reckless manner without knowing whether
they are true or false, the element of scienter is satisfied and he is liable for
intentional misrepresentation.” (Yellow Creek Logging Corp. v. Dare (1963) 216
Cal.App.2d 50, 57 [30 Cal.Rptr. 629], original italics, internal citations omitted.)
• “Negligent misrepresentation requires an assertion of fact, falsity of that
assertion, and the tortfeasor’s lack of reasonable grounds for believing the
assertion to be true. It also requires the tortfeasor’s intent to induce reliance,
justifiable reliance by the person to whom the false assertion of fact was made,
and damages to that person. An implied assertion of fact is ‘not enough’ to
support liability.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29
Cal.App.5th 146, 154 [239 Cal.Rptr.3d 788], internal citation omitted.)
• “ ‘To be actionable deceit, the representation need not be made with knowledge
of actual falsity, but need only be an “assertion, as a fact, of that which is not
true, by one who has no reasonable ground for believing it to be true” and made
“with intent to induce [the recipient] to alter his position to his injury or his
risk. . . .’ ” The elements of negligent misrepresentation also include justifiable
reliance on the representation, and resulting damage.” (B.L.M. v. Sabo & Deitsch
(1997) 55 Cal.App.4th 823, 834 [64 Cal.Rptr.2d 335], internal citations omitted.)
• “[Plaintiffs] do not allege negligence. They allege negligent misrepresentation.
They are different torts, as the Supreme Court expressly observed in [Bily, supra,
3 Cal.4th at p. 407]: ‘[N]either the courts (ourselves included), the
commentators, nor the authors of the Restatement Second of Torts have made
clear or careful distinctions between the tort of negligence and the separate tort
of negligent misrepresentation. The distinction is important not only because of
the different statutory bases of the two torts, but also because it has practical
implications for the trial of cases in complex areas . . . . [¶] Negligent
misrepresentation is a separate and distinct tort, a species of the tort of deceit.’
In short, the elements of each tort are different. Perhaps more importantly, the
policies behind each tort sometimes call for different results even when applied
to the same conduct.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 227−228
[170 Cal.Rptr.3d 293].)
• “As is true of negligence, responsibility for negligent misrepresentation rests
upon the existence of a legal duty, imposed by contract, statute or otherwise,
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owed by a defendant to the injured person. The determination of whether a duty
exists is primarily a question of law.” (Eddy v. Sharp (1988) 199 Cal.App.3d
858, 864 [245 Cal.Rptr. 211], internal citations omitted.)
• “The tort of negligent misrepresentation is similar to fraud, except that it does
not require scienter or an intent to defraud. . . . [T]he same elements of
intentional fraud also comprise a cause of action for negligent misrepresentation,
with the exception that there is no requirement of intent to induce
reliance . . . .” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California
(2016) 245 Cal.App.4th 821, 845 [199 Cal.Rptr.3d 901], internal citation
omitted.)
• “In our view, and to clarify, the proper formulation of the elements is that
negligent misrepresentation does require proof of ‘ “intent to induce another’s
reliance on the fact misrepresented[.]” ’ However, negligent misrepresentation
does not require proof of an intent to defraud.” (Borman v. Brown (2021) 59
Cal.App.5th 1048, 1061 [273 Cal.Rptr.3d 868], original italics, internal citation
omitted.)
• “ ‘ “Where the defendant makes false statements, honestly believing that they are
true, but without reasonable ground for such belief, he may be liable for
negligent misrepresentation, a form of deceit.” ’ If defendant’s belief ‘is both
honest and reasonable, the misrepresentation is innocent and there is no tort
liability.’ ” (Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 297
[70 Cal.Rptr.2d 442], internal citations omitted.)
• “[A] cause of action for misrepresentation requires an affirmative statement, not
an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089,
1102 [223 Cal.Rptr.3d 458].)
• “Whether a defendant had reasonable ground for believing his or her false
statement to be true is ordinarily a question of fact.” (Quality Wash Group V,
Ltd. v. Hallak (1996) 50 Cal.App.4th 1687, 1696 [58 Cal.Rptr.2d 592], internal
citations omitted.)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062 [141 Cal.Rptr.3d 142].)
• “The law is well established that actionable misrepresentations must pertain to
past or existing material facts. Statements or predictions regarding future events
are deemed to be mere opinions which are not actionable.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469 [169 Cal.Rptr.3d 619], internal
citation omitted.)
• “Where, as here, a negligent misrepresentation claim is brought against the
provider of a professional opinion based on special knowledge, information or
expertise regarding a company’s value, the California Supreme Court requires
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the following: ‘The representation must have been made with the intent to
induce plaintiff, or a particular class of persons to which plaintiff belongs, to act
in reliance upon the representation in a specific transaction, or a specific type of
transaction, that defendant intended to influence. Defendant is deemed to have
intended to influence [its client’s] transaction with plaintiff whenever defendant
knows with substantial certainty that plaintiff, or the particular class of persons
to which plaintiff belongs, will rely on the representation in the course of the
transaction. [However,] [i]f others become aware of the representation and act
upon it, there is no liability even though defendant should reasonably have
foreseen such a possibility.’ ” (Public Employees’ Retirement System v. Moody’s
Investors Service, Inc. (2014) 226 Cal.App.4th 643, 667−668 [172 Cal.Rptr.3d
238].)
• “[P]laintiffs rely on section 311 of the Restatement Second of Torts (section
311), which addresses negligent misrepresentation involving physical harm.
Under section 311(1), ‘[o]ne who negligently gives false information to another
is subject to liability for physical harm caused by action taken by the other in
reasonable reliance upon such information, where such harm results [¶] . . . [¶]
to such third persons as the actor should expect to be put in peril by the action
taken.’ [¶] Section 311’s theory of liability is intended to be ‘somewhat broader’
than that for mere pecuniary loss. It ‘finds particular application where it is a
part of the actor’s business or profession to give information upon which the
safety of the recipient or a third person depends.’ This court applied and
followed section 311 . . .” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4
Cal.5th 145, 162–163 [226 Cal.Rptr.3d 336, 407 P.3d 18], internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 940–942, 946–949
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-H, Negligent
Misrepresentation, ¶ 5:781 et seq. (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-D, Negligent
Misrepresentation, ¶ 11:41 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.10 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.14
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.270 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 22:13–22:15 (Thomson Reuters)
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1904. Opinions as Statements of Fact
Ordinarily, an opinion is not considered a representation of fact. An
opinion is a person’s belief that a fact exists, a statement regarding a
future event, or a judgment about quality, value, authenticity, or similar
matters. However, [name of defendant]’s opinion is considered a
representation of fact if [name of plaintiff] proves that:
[[Name of defendant] claimed to have special knowledge about the
subject matter that [name of plaintiff] did not have;] [or]
[[Name of defendant] made a representation, not as a casual
expression of belief, but in a way that declared the matter to be
true;] [or]
[[Name of defendant] had a relationship of trust and confidence with
[name of plaintiff];] [or]
[[Name of defendant] had some other special reason to expect that
[name of plaintiff] would rely on the defendant’s opinion.]
New September 2003; Revised April 2004, May 2020
Directions for Use
This is not a stand-alone instruction. It should be read in conjunction with one of
the elements instructions (CACI Nos. 1900–1903).
The second bracketed option appears to be limited to cases involving professional
opinions. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 408 [11 Cal.Rptr.2d 51,
834 P.2d 745].)
Alternative bracketed options that do not apply to the facts of the case may be
deleted.
Sources and Authority
• “Representations of opinion, particularly involving matters of value, are
ordinarily not actionable representations of fact. A representation is an opinion
‘ “if it expresses only (a) the belief of the maker, without certainty, as to the
existence of a fact; or (b) his judgment as to quality, value . . . or other matters
of judgment.” ’ ” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th
594, 606−607 [172 Cal.Rptr.3d 218], internal citations omitted.)
• “Plaintiffs cite the exceptions to the general rule that, to be actionable, a
misrepresentation must be of an existing fact, not an opinion or prediction of
future events. They arise ‘(1) where a party holds himself out to be specially
qualified and the other party is so situated that he may reasonably rely upon the
former’s superior knowledge; (2) where the opinion is by a fiduciary or other
trusted person; (3) where a party states his opinion as an existing fact or as
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implying facts which justify a belief in the truth of the opinion. [Citation.]’ ”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153
Cal.Rptr.3d 1], internal citation omitted.)
• “[W]hen one of the parties possesses, or assumes to possess, superior knowledge
or special information regarding the subject matter of the representation, and the
other party is so situated that he may reasonably rely upon such supposed
superior knowledge or special information, a representation made by the party
possessing or assuming to possess such knowledge or information, though it
might be regarded as but the expression of an opinion if made by any other
person, is not excused if it be false.” (Jolley v. Chase Home Finance, LLC
(2013) 213 Cal.App.4th 872, 892 [153 Cal.Rptr.3d 546].)
• “Since the appraisal is a value opinion performed for the benefit of the lender,
there is no representation of fact upon which a buyer may reasonably rely.”
(Graham, supra, 226 Cal.App.4th at p. 607.)
• “Whether a statement is nonactionable opinion or actionable misrepresentation of
fact is a question of fact for the jury.” (Furla v. Jon Douglas Co. (1998) 65
Cal.App.4th 1069, 1080–1081 [76 Cal.Rptr.2d 911], internal citations omitted.)
• “If defendants’ assertion of safety is merely a statement of opinion—mere
‘puffing’—they cannot be held liable for its falsity.” (Hauter v. Zogarts (1975)
14 Cal.3d 104, 111 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “The alleged false representations in the subject brochures were not statements
of ‘opinion’ or mere ‘puffing.’ They were, in essence, representations that the
DC-10 was a safe aircraft. In Hauter, [supra,] the Supreme Court held that
promises of safety are not statements of opinion—they are ‘representations of
fact.’ ” (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216
Cal.App.3d 388, 424 [264 Cal.Rptr. 779].)
• “Under certain circumstances, expressions of professional opinion are treated as
representations of fact. When a statement, although in the form of an opinion, is
‘not a casual expression of belief’ but ‘a deliberate affirmation of the matters
stated,’ it may be regarded as a positive assertion of fact. Moreover, when a
party possesses or holds itself out as possessing superior knowledge or special
information or expertise regarding the subject matter and a plaintiff is so situated
that it may reasonably rely on such supposed knowledge, information, or
expertise, the defendant’s representation may be treated as one of material fact.”
(Bily, supra, 3 Cal.4th at p. 408, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 892–896
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][b] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.17
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.50 (Matthew
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Bender)
California Civil Practice: Torts, §§ 22:21–22:28 (Thomson Reuters)
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1905. Definition of Important Fact/Promise
Revoked December 2013
See CACI No. 1908, Reasonable Reliance.
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1906. Misrepresentations Made to Persons Other Than the
Plaintiff
[Name of defendant] is responsible for a representation that was not made
directly to [name of plaintiff] if [he/she/nonbinary pronoun/it] made the
representation [to a group of persons including [name of plaintiff]] [or]
[to another person, intending or reasonably expecting that it would be
repeated to [name of plaintiff]].
New September 2003
Directions for Use
An instruction on concealment made to a person other than the plaintiff is not
necessary; this point is covered by the third option of element 1 in CACI No. 1901,
Concealment.
Sources and Authority
• Intent to Defraud Class. Civil Code section 1711.
• “It is true that in order for a defendant to be liable for fraud, he or she must
intend that a particular representation (or concealment) be relied upon by a
specific person or persons. However, it is also established that a defendant
cannot escape liability if he or she makes a representation to one person while
intending or having reason to expect that it will be repeated to and acted upon
by the plaintiff (or someone in the class of persons of which plaintiff is a
member). This is the principle of indirect deception described in section 533 of
the Restatement Second of Torts (section 533): ‘The maker of a fraudulent
misrepresentation is subject to liability for pecuniary loss to another who acts in
justifiable reliance upon it if the misrepresentation, although not made directly to
the other, is made to a third person and the maker intends or has reason to
expect that its terms will be repeated or its substance communicated to the other,
and that it will influence his conduct in the transaction or type of transaction
involved.’ Comment d to section 533 makes it clear the rule of section 533
applies where the maker of the misrepresentation has information that gives him
special reason to expect that the information will be communicated to others and
will influence their conduct. Comment g goes on to explain that it is not
necessary that the maker of the misrepresentation have the particular person in
mind. It is enough that it is intended to be repeated to a particular class of
persons.” (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1548 [76
Cal.Rptr.2d 101], internal citations omitted; see also Geernaert v. Mitchell (1995)
31 Cal.App.4th 601, 605–606 [37 Cal.Rptr.2d 483].)
• “[L]iability for a fraud worked on an agent is imposed where it is the agent who
not only places reliance on the misrepresentations, but also makes the decision
and takes action based upon the misrepresentations.” (Hasso v. Hapke (2014)
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227 Cal.App.4th 107, 129 [173 Cal.Rptr.3d 356].)
• “The maker of a fraudulent misrepresentation is subject to liability for pecuniary
loss to another who acts in justifiable reliance upon it if the misrepresentation,
although not made directly to the other, is made to a third person and the maker
intends or has reason to expect that its terms will be repeated or its substance
communicated to the other, and that it will influence his conduct in the
transaction or type of transactions involved.” (Hasso, supra, 227 Cal.App.4th at
p. 130.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 922–926
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.05[3] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.14
(Matthew Bender)
California Civil Practice: Torts, § 22:34 (Thomson Reuters)
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1907. Reliance
[Name of plaintiff] relied on [name of defendant]’s
[misrepresentation/concealment/false promise] if:
1. The [misrepresentation/concealment/false promise] substantially
influenced [him/her/nonbinary pronoun/it] to [insert brief
description of the action, e.g., “buy the house”]; and
2. [He/She/Nonbinary pronoun/It] would probably not have [e.g.,
bought the house] without the [misrepresentation/concealment/false
promise].
It is not necessary for a [misrepresentation/concealment/false promise] to
be the only reason for [name of plaintiff]’s conduct.
New September 2003; Revised December 2013
Directions for Use
Give this instruction with one of the fraud causes of action (see CACI Nos.
1900–1903), all of which require actual reliance on the statement or omission at
issue. Reliance must be both actual and reasonable. Give also CACI No. 1908,
Reasonable Reliance.
Sources and Authority
• “It is settled that a plaintiff, to state a cause of action for deceit based on a
misrepresentation, must plead that he or she actually relied on the
misrepresentation.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088 [23
Cal.Rptr.2d 101, 858 P.2d 568], internal citations omitted.)
• “Actual reliance occurs when a misrepresentation is ‘ “an immediate cause of [a
plaintiff’s] conduct, which alters his legal relations,” ’ and when, absent such
representation, ‘ “he would not, in all reasonable probability, have entered into
the contract or other transaction.” ’ ‘It is not . . . necessary that [a plaintiff’s]
reliance upon the truth of the fraudulent misrepresentation be the sole or even
the predominant or decisive factor in influencing his conduct. . . . It is enough
that the representation has played a substantial part, and so has been a
substantial factor, in influencing his decision.’ ” (Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 976–977 [64 Cal.Rptr.2d 843, 938 P.2d 903],
internal citations omitted.)
• “In establishing the reliance element of a cause of action for fraud, it is settled
that the alleged fraud need not be the sole cause of a party’s reliance. Instead,
reliance may be established on the basis of circumstantial evidence showing the
alleged fraudulent misrepresentation or concealment substantially influenced the
party’s choice, even though other influences may have operated as well.”
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(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 170 [80 Cal.Rptr.2d 66],
internal citations omitted.)
• “[A] presumption, or at least an inference, of reliance arises wherever there is a
showing that a misrepresentation was material. A misrepresentation is judged to
be ‘material’ if ‘a reasonable man would attach importance to its existence or
nonexistence in determining his choice of action in the transaction in question’
and as such, materiality is generally a question of fact unless the ‘fact
misrepresented is so obviously unimportant that the jury could not reasonably
find that a reasonable man would have been influenced by it.’ ” (Engalla, supra,
15 Cal.4th at p. 977.)
• “ ‘It must be shown that the plaintiff actually relied upon the misrepresentation;
i.e., that the representation was “an immediate cause of his conduct which alters
his legal relations,” and that without such representation, “he would not, in all
reasonable probability, have entered into the contract or other transaction.” ’ ”
(Okun v. Morton (1988) 203 Cal.App.3d 805, 828 [250 Cal.Rptr. 220], internal
citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 928–937
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.05–40.06 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.15
et seq. (Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.200 et seq.
(Matthew Bender)
California Civil Practice: Torts § 22:31 (Thomson Reuters)
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1908. Reasonable Reliance
In determining whether [name of plaintiff]’s reliance on the
[misrepresentation/concealment/false promise] was reasonable, [he/she/
nonbinary pronoun/it] must first prove that the matter was material. A
matter is material if a reasonable person would find it important in
deciding what to do.
If you decide that the matter is material, you must then decide whether
it was reasonable for [name of plaintiff] to rely on the [misrepresentation/
concealment/false promise]. In making this decision, take into
consideration [name of plaintiff]’s intelligence, knowledge, education, and
experience.
However, it is not reasonable for anyone to rely on a [misrepresentation/
concealment/false promise] that is preposterous. It also is not reasonable
for anyone to rely on a [misrepresentation/concealment/false promise] if
facts that are within [his/her/nonbinary pronoun] observation show that it
is obviously false.
New September 2003; Revised October 2004, December 2013, May 2020
Directions for Use
There would appear to be three considerations in determining reasonable reliance.
First, the representation or promise must be material, as judged by a reasonable-
person standard. (Charpentier v. Los Angeles Rams (1999) 75 Cal.App.4th 301,
312–313 [89 Cal.Rptr.2d 115].) Second, if the matter is material, reasonableness
must take into account the plaintiff’s own knowledge, education, and experience; the
objective reasonable person is irrelevant at this step. Third, some matters are simply
too preposterous to be believed by anyone, notwithstanding limited knowledge,
education, and experience. (Blankenheim v. E. F. Hutton, Co., Inc. (1990) 217
Cal.App.3d 1463, 1474 [266 Cal.Rptr. 593].)
See also CACI No. 1907, Reliance.
Sources and Authority
• “After establishing actual reliance, the plaintiff must show that the reliance was
reasonable by showing that (1) the matter was material in the sense that a
reasonable person would find it important in determining how he or she would
act, and (2) it was reasonable for the plaintiff to have relied on the
misrepresentation.” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th
1178, 1194 [175 Cal.Rptr.3d 820], internal citations omitted.)
• “According to the Restatement of Torts, ‘[r]eliance upon a fraudulent
misrepresentation is not justifiable unless the matter misrepresented is
material. . . . The matter is material if . . . a reasonable [person] would attach
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importance to its existence or nonexistence in determining his choice of action in
the transaction in question . . . .’ But materiality is a jury question, and a ‘court
may [only] withdraw the case from the jury if the fact misrepresented is so
obviously unimportant that the jury could not reasonably find that a reasonable
man would have been influenced by it.’ ” (Charpentier, supra, 75 Cal.App.4th at
pp. 312–313, internal citations omitted.)
• “[T]he issue is whether the person who claims reliance was justified in believing
the representation in the light of his own knowledge and experience.” (Gray v.
Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503 [198 Cal.Rptr. 551,
674 P.2d 253], internal citations omitted.)
• “[N]or is a plaintiff held to the standard of precaution or of minimum knowledge
of a hypothetical, reasonable man. Exceptionally gullible or ignorant people have
been permitted to recover from defendants who took advantage of them in
circumstances where persons of normal intelligence would not have been misled.
‘No rogue should enjoy his ill-gotten plunder for the simple reason that his
victim is by chance a fool.’ ” (Blankenheim, supra, 217 Cal.App.3d at p. 1474,
internal citations omitted.)
• “[G]enerally speaking, ‘ “[a] plaintiff will be denied recovery only if his conduct
is manifestly unreasonable in the light of his own intelligence or information. It
must appear that he put faith in representations that were ‘preposterous’ or
‘shown by facts within his observation to be so patently and obviously false that
he must have closed his eyes to avoid discovery of the truth.’ [Citation.] Even in
case of a mere negligent misrepresentation, a plaintiff is not barred unless his
conduct, in the light of his own information and intelligence, is preposterous and
irrational. . . . The effectiveness of disclaimers is assessed in light of these
principles. [Citation.]” ’ ” (Public Employees’ Retirement System v. Moody’s
Investors Service, Inc. (2014) 226 Cal.App.4th 643, 673 [172 Cal.Rptr.3d 238].)
• “[I]f the conduct of the plaintiff in the light of his own intelligence and
information was manifestly unreasonable, however, he will be denied a
recovery.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218
Cal.App.4th 1230, 1239 [160 Cal.Rptr.3d 718].)
• “Except in the rare case where the undisputed facts leave no room for a
reasonable difference of opinion, the question of whether a plaintiff’s reliance is
reasonable is a question of fact.” (Beckwith v. Dahl (2012) 205 Cal.App.4th
1039, 1067 [141 Cal.Rptr.3d 142].)
• “ ‘What would constitute fraud in a given instance might not be fraudulent when
exercised toward another person. The test of the representation is its actual effect
on the particular mind . . . .’ ” (Blankenheim, supra, 217 Cal.App.3d at p. 1475,
internal citation omitted.)
• “[Plaintiff]’s deposition testimony on which appellants rely also reveals that she
is a practicing attorney and uses releases in her practice. In essence, she is
asking this court to rule that a practicing attorney can rely on the advice of an
equestrian instructor as to the validity of a written release of liability that she
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executed without reading. In determining whether one can reasonably or
justifiably rely on an alleged misrepresentation, the knowledge, education and
experience of the person claiming reliance must be considered. Under these
circumstances, we conclude as a matter of law that any such reliance was not
reasonable.” (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843–844 [2
Cal.Rptr.2d 437], internal citations omitted.)
• “[I]t is inherently unreasonable for any person to rely on a prediction of future
IRS enactment, enforcement, or non-enforcement of the law by someone
unaffiliated with the federal government. As such, the reasonable reliance
element of any fraud claim based on these predictions fails as a matter of law.”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153
Cal.Rptr.3d 1].)
• “[A] presumption, or at least an inference, of reliance arises wherever there is a
showing that a misrepresentation was material. A misrepresentation is judged to
be ‘material’ if ‘a reasonable man would attach importance to its existence or
nonexistence in determining his choice of action in the transaction in question’
and as such, materiality is generally a question of fact unless the ‘fact
misrepresented is so obviously unimportant that the jury could not reasonably
find that a reasonable man would have been influenced by it.’ ” (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 977 [64 Cal.Rptr.2d
843, 938 P.2d 903], internal citations omitted.)
• “[I]t is well established that the kind of disclaimers and exculpatory
documents—such as the ‘estoppel’ attached to the lease and signed by [plaintiff]
that disavowed any representations made by landlord or its agents to him—do
not operate to insulate defrauding parties from liability or preclude [plaintiff]
from demonstrating justifiable reliance on misrepresentations.” (Orozco v. WPV
San Jose, LLC (2019) 36 Cal.App.5th 375, 393 [248 Cal.Rptr.3d 623].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 933–937
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.06 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.19
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.229
(Matthew Bender)
2 California Civil Practice: Torts, § 22:32 (Thomson Reuters)
1909. Reserved for Future Use
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1910. Real Estate Seller’s Nondisclosure of Material Facts
[Name of plaintiff] claims that [name of defendant] failed to disclose
certain information, and that because of this failure to disclose, [name of
plaintiff] was harmed. In order to establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] purchased [describe real property] from
[name of defendant];
2. That [name of defendant] knew that [specify information that was
not disclosed];
3. That [name of defendant] did not disclose this information to
[name of plaintiff];
4. That [name of plaintiff] did not know, and could not reasonably
have discovered, this information;
5. That [name of defendant] knew that [name of plaintiff] did not
know, and could not reasonably have discovered, this
information;
6. That this information significantly affected the value or
desirability of the property;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s failure to disclose the information was
a substantial factor in causing [name of plaintiff]’s harm.
New December 2009; Revised May 2020
Directions for Use
This instruction sets forth the common law duty of disclosure that a real estate seller
has to a buyer. Nondisclosure is tantamount to a misrepresentation. (See Calemine v.
Samuelson (2009) 171 Cal.App.4th 153, 161 [89 Cal.Rptr.3d 495].)
For certain transfers, there is also a statutory duty of disclosure. (See Civ. Code,
§ 1102 et seq.) The scope of the required disclosure is set forth on a statutory form.
(See Civ. Code, § 1102.6.) The common law duty is not preempted by the statutory
duty (see Civ. Code, § 1102.1(a)), but breach of the statutory duty can constitute
proof of breach of the common law duty if all of the elements are established. (See,
e.g., Calemine, supra, 171 Cal.App.4th at pp. 164–165 [seller did not disclose
earlier lawsuits, as required by statutory form].)
Sources and Authority
• Real Estate Buyer’s Action Against Seller. Civil Code section 1102.13.
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• “ ‘A real estate seller has both a common law and statutory duty of
disclosure. . . . “In the context of a real estate transaction, ‘[i]t is now settled in
California that where the seller knows of facts materially affecting the value or
desirability of the property . . . and also knows that such facts are not known
to, or within the reach of the diligent attention and observation of the buyer, the
seller is under a duty to disclose them to the buyer. [Citations.]’ [Citations.]
Undisclosed facts are material if they would have a significant and measurable
effect on market value. [Citation.]” . . . Where a seller fails to disclose a
material fact, he may be subject to liability ‘for mere nondisclosure since his
conduct in the transaction amounts to a representation of the nonexistence of the
facts which he has failed to disclose [citation].” [Citation.]’ ” (RSB Vineyards,
LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1097 [223 Cal.Rptr.3d 458], original
italics.)
• “Generally, whether the undisclosed matter was of sufficient materiality to have
affected the value or desirability of the property is a question of fact.”
(Calemine, supra, 171 Cal.App.4th at p. 161, internal citations omitted.)
• “Actual knowledge can, and often is, shown by inference from circumstantial
evidence. In that case, however, ‘ “actual knowledge can be inferred from the
circumstances only if, in the light of the evidence, such inference is not based on
speculation or conjecture. Only where the circumstances are such that the
defendant ‘must have known’ and not ‘should have known’ will an inference of
actual knowledge be permitted.” ’ ” (RSB Vineyards, LLC, supra, 15 Cal.App.5th
at p. 1098, internal citation omitted.)
• “Generally, where one party to a transaction has sole knowledge or access to
material facts and knows that such facts are not known or reasonably
discoverable by the other party, then a duty to disclose exists.” (See Shapiro v.
Sutherland (1998) 64 Cal.App.4th 1534, 1544 [76 Cal.Rptr.2d 101].)
• “Failure of the seller to fulfill [the] duty of disclosure constitutes actual fraud.”
(Lingsch v. Savage (1963) 213 Cal.App.2d 729, 736 [29 Cal.Rptr. 201].)
• “When and where the action by the purchaser is based on conditions that are
visible and that a personal inspection at once discloses and, when it is admitted
that such personal inspection was in fact made, then manifestly it cannot be
successfully contended that the purchaser relied upon any alleged
misrepresentations with regard to such visible conditions. But personal inspection
is no defense when and where the conditions are not visible and are known only
to the seller, and ‘where material facts are accessible to the vendor only and he
knows them not to be within the reach of the diligent attention and observation
of the vendee, the vendor is bound to disclose such facts to the vendee.’ ” (Buist
v. C. Dudley De Velbiss Corp. (1960) 182 Cal.App.2d 325, 331 [6 Cal.Rptr.
259].)
• “In enacting [Civil Code section 1102 et seq.], the Legislature made clear it did
not intend to alter a seller’s common law duty of disclosure. The purpose of the
enactment was instead to make the required disclosures specific and clear.
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(Calemine, supra, 171 Cal.App.4th at pp. 161–162.)
• “The legislation was sponsored by the California Association of Realtors to
provide a framework for formal disclosure of facts relevant to a decision to
purchase realty. The statute therefore confirms and perhaps clarifies a disclosure
obligation that existed previously at common law.” (Shapiro, supra, 64
Cal.App.4th at p. 1539, fn. 6.)
Secondary Sources
1 California Real Estate Law and Practice, Ch. 71, Real Property Purchase and Sale
Agreements, § 71.30 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
Bender)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser of
Real Property, § 569.11 (Matthew Bender)
2A California Points and Authorities, Ch. 31, Brokers and Salesperson, § 31.142
(Matthew Bender)
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 4-E,
Purchase and Sale Agreement—Terms and Conditions, ¶ 4:351 et seq. (The Rutter
Group)
1911–1919. Reserved for Future Use
1192
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1920. Buyer’s Damages for Purchase or Acquisition of Property
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. The difference between [the amount that [name of plaintiff] paid]
[or] [the fair market value of what [name of plaintiff] exchanged
for the property] and the fair market value of the property at the
time of sale;
2. Amounts that [name of plaintiff] reasonably spent in reliance on
[name of defendant]’s [false representation/failure to
disclose/promise] if those amounts would not otherwise have been
spent in the purchase or acquisition of the property; [and]
3. [Insert additional harm arising from the transaction] to the extent
that [name of defendant]’s [false representation/failure to disclose/
promise] was a substantial factor in causing that [insert additional
harm arising from the transaction]; [and]
4. [Lost profits [or other gains].]
New September 2003
Directions for Use
For an instruction on damages for loss of use, see CACI No. 3903G, Loss of Use of
Real Property (Economic Damage).
The first element of this instruction should be modified in cases involving
promissory fraud: “In cases of promissory fraud, the damages are measured by
market value as of the date the promise was breached because that is the date when
the damage occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights
Dev. Co. (1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
Sources and Authority
• Fraud in Sale of Property: Buyer’s Damages. Civil Code section 3343.
• “As they apply to damages for fraud, subdivisions (a)(2) and (a)(3) of section
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3343 are limited to recovery of damages by sellers of real property, while
subdivision (a)(4) deals with purchasers of real property.” (Channell v. Anthony
(1976) 58 Cal.App.3d 290, 309 [129 Cal.Rptr. 704], footnote omitted.)
• “Before 1935 the California courts had no statutory mandate on the measure of
damages for fraud. While the ‘benefit of the bargain’ measure of damages was
generally employed, on occasion California courts sometimes applied the ‘out of
pocket’ rule when the ‘loss of bargain’ rule was difficult to apply or would work
a hardship on plaintiff or defendant.” (Channell, supra, 58 Cal.App.3d at p. 309.)
• “We find nothing in section 3343 as amended which requires that a plaintiff
show ‘out-of-pocket’ loss (i.e., an amount by which the consideration paid
exceeded the value of the property received) in order to be entitled to any
recovery for fraud in a property transaction.” (Stout v. Turney (1978) 22 Cal.3d
718, 729 [150 Cal.Rptr. 637, 586 P.2d 1228].)
• “All doubt concerning this matter was set at rest, however, in the carefully
considered opinion in Bagdasarian v. Gragnon (1948) 31 Cal.2d 744, 753 [192
P.2d 935] where it was definitely and finally determined that the term ‘actual
value,’ as used in the statute, was that same market value so frequently defined
in actions for condemnation.” (Nece v. Bennett (1963) 212 Cal.App.2d 494, 497
[28 Cal.Rptr. 117], internal citation omitted.)
• “[P]ursuant to Civil Code section 3343, amounts paid for escrow fees, moving to
and from the property, building permits, telephone connections, fences, yard
cleaning, garage materials, door locks, shrubbery, taxes, rent and labor are
examples of recoverable damages when reasonably expended in reliance on the
fraud.” (Cory v. Villa Properties (1986) 180 Cal.App.3d 592, 603 [225 Cal.Rptr.
628], internal citations omitted.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1897–1899
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1194
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1921. Buyer’s Damages for Purchase or Acquisition of
Property—Lost Profits
[Name of plaintiff] may recover damages for profits [or other gains] [he/
she/nonbinary pronoun/it] would have made if the property had been as
represented. [Name of plaintiff] can recover these profits [or other gains]
only if [he/she/nonbinary pronoun/it] has proved all of the following:
1. That [name of plaintiff] acquired the property for the purpose of
using or reselling it for a [profit/gain];
2. That [name of plaintiff] reasonably relied on [name of defendant]’s
[false representation/failure to disclose/promise] in entering into
the transaction and in anticipating [profits/gains] from the use or
sale of the property; and
3. That [name of defendant]’s [false representation/failure to disclose/
promise] and [name of plaintiff]’s reliance on it were both
substantial factors in causing the lost profits.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
New September 2003
Directions for Use
This instruction should be read immediately after CACI No. 1920, Buyer’s
Damages for Purchase or Acquisition of Property, if the plaintiff is claiming lost
profits.
Sources and Authority
• Fraud in Sale of Property: Buyer’s Damages for Lost Profits. Civil Code section
3343(a)(4).
• “With glaring inconsistency, California’s statutory structure before 1971
permitted recovery of lost profits and earnings under Civil Code section 3333 in
fraud cases which did not concern the ‘purchase, sale or exchange of property,’
and even in simple negligence cases and breach of contract cases the injured
parties could recover lost profits and earnings, while the ‘out of pocket’ rule
barred the fraud victim in property transaction cases from recovering more than
the difference between the amount he paid for the property and its actual value.”
(Channell v. Anthony (1976) 58 Cal.App.3d 290, 312 [129 Cal.Rptr. 704],
internal citations and footnote omitted.)
• “The Legislature removed all doubt concerning the recovery of loss of profits
resulting from the fraudulently induced property acquisition. Clearly and
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specifically, lost profits proximately caused are recoverable. The cases cited, the
arguments made concerning Civil Code section 3343 limitations are simply not
relevant to post-1971 proceedings, where profits are the claimed loss. Civil Code
section 3343 as amended, in so many words, authorizes recovery of lost profits.”
(Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 247 [137 Cal.Rptr. 244].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1897–1899
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1196
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1922. Seller’s Damages for Sale or Exchange of Property
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. The difference between the fair market value of the property at
the time of sale and [the amount that [name of plaintiff] received]
[or] [the fair market value of what [name of plaintiff] received in
exchange for the property];
2. Amounts that [name of plaintiff] reasonably spent in reliance on
[name of defendant]’s [false representation/failure to
disclose/promise] if those amounts would not otherwise have been
spent in the sale or exchange of the property;
3. Loss of use and enjoyment of the property from [insert beginning
date] to [insert end date], to the extent that [name of defendant]’s
[false representation/failure to disclose/promise] was a substantial
factor in causing that loss of use and enjoyment of the property;
4. Profits or other gains from [insert beginning date] to [insert end
date], that [name of plaintiff] might reasonably have earned by use
of the property if [he/she/nonbinary pronoun] had kept it; and
5. Any additional damage arising from the particular transaction.
New September 2003
Directions for Use
This instruction should be tailored to fit the facts and evidence in the particular
case: “If the seller parts with title and elects to forego his right of rescission and sue
for damages only, then of course subdivisions (a)(2) and (a)(3) of section 3343 do
not apply and should not be given by the trial court (unless, as here, the contract
itself creates such rights). In each case in which a seller of property is defrauded by
a buyer, the trial court will have to examine the circumstances of the particular case
and decide whether the questioned portions of section 3343 do or do not apply.”
(Channell v. Anthony (1976) 58 Cal.App.3d 290, 317 [129 Cal.Rptr. 704].)
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CACI No. 1922 FRAUD OR DECEIT
The first element of this instruction should be modified in cases involving
promissory fraud: “In cases of promissory fraud, the damages are measured by
market value as of the date the promise was breached because that is the date when
the damage occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights
Dev. Co. (1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
For an instruction on lost profits, see CACI No. 3903N, Lost Profits (Economic
Damage).
Sources and Authority
• Fraud in Sale of Property: Seller’s Damages. Civil Code section 3343.
• “As they apply to damages for fraud, subdivisions (a)(2) and (a)(3) of section
3343 are limited to recovery of damages by sellers of real property, while
subdivision (a)(4) deals with purchasers of real property.” (Channell, supra, 58
Cal.App.3d at p. 309, footnote omitted.)
• “Before 1935 the California courts had no statutory mandate on the measure of
damages for fraud. While the ‘benefit of the bargain’ measure of damages was
generally employed, on occasion California courts sometimes applied the ‘out of
pocket’ rule when the ‘loss of bargain’ rule was difficult to apply or would work
a hardship on plaintiff or defendant.” (Channell, supra, 58 Cal.App.3d at p. 309,
footnote omitted.)
• “The 1971 amendment to section 3343 took the form of an addition to the ‘out
of pocket’ rule. The statute had previously permitted recovery of ‘additional
damages,’ but the 1971 amendment enumerated specific types of consequential
damages which are included within the term ‘additional damages.’ ” (Channell,
supra, 58 Cal.App.3d at p. 312, footnote omitted.)
• “[T]he legislature clearly ruled out by the 1971 amendment any recovery of
damages for fraud measured by the traditional ‘loss of bargain’ formula.”
(Channell, supra, 58 Cal.App.3d at p. 313, footnote omitted.)
• “[O]ut of pocket” loss under section 3343 is “the difference between what
[plaintiffs] received for their property and the fair market value of the same at
the time of the transfer.” (Channell, supra, 58 Cal.App.3d at p. 314.)
• “[N]othing in section 3343 as amended . . . requires that a plaintiff show ‘out-
of-pocket’ loss (i.e., an amount by which the consideration paid exceeded the
value of the property received) in order to be entitled to any recovery for fraud
in a property transaction.” (Stout v. Turney (1978) 22 Cal.3d 718, 730 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In the absence of a fiduciary relationship, section 3343 governs the measure of
damages in fraudulent property transactions.” (Croeni v. Goldstein (1994) 21
Cal.App.4th 754, 759 [26 Cal.Rptr.2d 412].)
• “In the case of a seller . . . the defrauded victim is entitled to recover not only
the difference between the actual value of that with which he parted and the
actual value of that which he received (out-of-pocket) but also any additional
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damage arising from the particular transaction including any of the following: 1.
amounts expended in reliance upon the fraud; 2. amounts compensating for loss
of use and enjoyment of the property due to the fraud; and 3. an amount which
would compensate him for the profits or other gains by the use of the property
had he retained it.” (Channell, supra, 58 Cal.App.3d at p. 312, internal citation
omitted.)
• “What that time span [for damages for lost use and lost profits] should be would
be determined by the peculiar circumstances of the particular case before the
court and should present no insurmountable difficulty for a court in fixing a
reasonable period contemplated by the statute.” (Channell, supra, 58 Cal.App.3d
at p. 317, footnote omitted.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
• “Mental distress is not an element of damages allowable under Civil Code
section 3343.” (Channell, supra, 58 Cal.App.3d at p. 315, internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1897–1899
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
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1923. Damages—“Out of Pocket” Rule
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
The amount of damages must include an award for all harm that [name
of defendant] was a substantial factor in causing, even if the particular
harm could not have been anticipated.
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
To decide the amount of damages you must determine the [fair market]
value of what [name of plaintiff] gave and subtract from that amount the
[fair market] value of what [he/she/nonbinary pronoun/it] received.
[“Fair market value” is the highest price that a willing buyer would have
paid on the date of the transaction to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That the buyer and seller know all the uses and purposes for
which the [insert item] is reasonably capable of being used.]
[Name of plaintiff] may also recover amounts that [he/she/nonbinary
pronoun/it] reasonably spent in reliance on [name of defendant]’s [false
representation/failure to disclose/false promise] if those amounts would
not otherwise have been spent.
New September 2003; Revised December 2009
Directions for Use
For discussion of damages if there is both a breach of fiduciary duty and intentional
misrepresentation, see the Directions for Use to CACI No. 1924,
Damages—“Benefit of the Bargain” Rule.
Sources and Authority
• Damages for Fraud. Civil Code section 1709.
• Measure of Damages in Tort. Civil Code section 3333.
• Damages for Fraud in Sale of Property. Civil Code section 3343.
• This instruction should be modified in cases involving promissory fraud: “In
cases of promissory fraud, the damages are measured by market value as of the
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date the promise was breached because that is the date when the damage
occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co.
(1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
• “There are two measures of damages for fraud: out of pocket and benefit of the
bargain. The ‘out-of-pocket’ measure of damages ‘is directed to restoring the
plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the
transaction between what the plaintiff gave and what he received. The “benefit-
of-the-bargain” measure, on the other hand, is concerned with satisfying the
expectancy interest of the defrauded plaintiff by putting him in the position he
would have enjoyed if the false representation relied upon had been true; it
awards the difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.’ ‘In California, a
defrauded party is ordinarily limited to recovering his “out-of-pocket” loss
. . . .’ ” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [44
Cal.Rptr.2d 352, 900 P.2d 601], internal citations omitted.)
• “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent
with the logic and purpose of the tort form of action (i.e., compensation for loss
sustained rather than satisfaction of contractual expectations) while the ‘benefit-
of-the-bargain’ rule has been observed to be a more effective deterrent (in that it
contemplates an award even when the property received has a value equal to
what was given for it).” (Stout v. Turney (1978) 22 Cal.3d 718, 725 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In fraud cases involving the ‘purchase, sale or exchange of property,’ the
Legislature has expressly provided that the ‘out-of-pocket’ rather than the
‘benefit-of-the-bargain’ measure of damages should apply. Civil Code section
3343 provides the exclusive measure of damages for fraud in such cases.”
(Fragale v. Faulkner (2003) 110 Cal.App.4th 229, 236 [1 Cal.Rptr.3d 616].)
• “Civil Code section 3343 does not apply, however, ‘when a victim is defrauded
by its fiduciaries.’ Instead, in the case of fraud by a fiduciary, ‘the “broader”
measure of damages provided by sections 1709 and 3333 applies.’ . . . [¶] In
the case of a negligent misrepresentation by a fiduciary, ‘a plaintiff is only
entitled to its actual or “out-of-pocket” losses suffered because of [the]
fiduciary’s negligent misrepresentation under section 3333.’ [¶] The Supreme
Court has not decided whether ‘the measure of damages under section 3333
might be greater for a fiduciary’s intentional misrepresentation . . . .’ ” (Fragale,
supra, 110 Cal.App.4th at pp. 236–237, original italics, internal citations
omitted.)
• “We have previously held that a plaintiff is only entitled to its actual or ‘out-of-
pocket’ losses suffered because of fiduciary’s negligent misrepresentation under
section 3333. While the measure of damages under section 3333 might be
greater for a fiduciary’s intentional misrepresentation, we need not address that
issue here.” (Alliance Mortgage Co., supra, 10 Cal.4th at pp. 1249–1250.)
• “To recover damages for fraud, a plaintiff must have sustained damages
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proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1893–1900
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit § 269.27
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit § 105.252
(Matthew Bender)
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1924. Damages—“Benefit of the Bargain” Rule
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
The amount of damages must include an award for all harm that [name
of defendant] was a substantial factor in causing, even if the particular
harm could not have been anticipated.
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
To determine the amount of damages, you must:
1. Determine the fair market value that [name of plaintiff] would
have received if the representations made by [name of defendant]
had been true; and
2. Subtract the fair market value of what [he/she/nonbinary pronoun/
it] did receive.
The resulting amount is [name of plaintiff]’s damages. “Fair market
value” is the highest price that a willing buyer would have paid to a
willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That the buyer and seller know all the uses and purposes for
which the [insert item] is reasonably capable of being used.
Fair market value must be determined as of the date that [name of
plaintiff] discovered [name of defendant]’s [false representation/ failure to
disclose].
[Name of plaintiff] may also recover amounts that [he/she/nonbinary
pronoun/it] reasonably spent in reliance on [name of defendant]’s [false
representation/failure to disclose/false promise] if those amounts would
not otherwise have been spent.
New September 2003; Revised December 2009
Directions for Use
There is a split of authority regarding whether benefit-of-the-bargain damages can
ever be recovered for intentional misrepresentation in the sale or exchange of
property. It is settled that in a nonfiduciary relationship, damages are limited to the
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out-of-pocket measure, even if the misrepresentation is intentional. (See Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [44 Cal.Rptr.2d 352, 900
P.2d 601]; Civ. Code, § 3343.) However, there is disagreement on the proper
measure if there is a fiduciary relationship.
Some courts have held that benefit-of-the-bargain damages are available if there is
both a fiduciary relationship and intentional misrepresentation. (See Fragale v.
Faulkner (2003) 110 Cal.App.4th 229, 235–239 [1 Cal.Rptr.3d 616]; Salahutdin v.
Valley of California, Inc. (1994) 24 Cal.App.4th 555, 564 [29 Cal.Rptr.2d 463]; see
also Alfaro v. Community Housing Improvement System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356, 1383 [89 Cal.Rptr.3d 659].) At least one court has
held to the contrary, that only out-of-pocket losses may be recovered. (See Hensley
v. McSweeney (2001) 90 Cal.App.4th 1081, 1086 [109 Cal.Rptr.2d 489].)
This instruction should be modified in cases involving promissory fraud: “In cases
of promissory fraud, the damages are measured by market value as of the date the
promise was breached because that is the date when the damage occurred.”
(Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66
Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
Sources and Authority
• Damages for Fraud. Civil Code section 1709.
• Measure of Damages in Tort. Civil Code section 3333.
• “There are two measures of damages for fraud: out of pocket and benefit of the
bargain. The ‘out-of-pocket’ measure of damages ‘is directed to restoring the
plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the
transaction between what the plaintiff gave and what he received. The “benefit-
of-the-bargain” measure, on the other hand, is concerned with satisfying the
expectancy interest of the defrauded plaintiff by putting him in the position he
would have enjoyed if the false representation relied upon had been true; it
awards the difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.’ ‘In California, a
defrauded party is ordinarily limited to recovering his “out-of-pocket” loss
. . . .’ ” (Alliance Mortgage Co. supra, 10 Cal.4th at p. 1240, internal citations
omitted.)
• “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent
with the logic and purpose of the tort form of action (i.e., compensation for loss
sustained rather than satisfaction of contractual expectations) while the ‘benefit-
of-the-bargain’ rule has been observed to be a more effective deterrent (in that it
contemplates an award even when the property received has a value equal to
what was given for it.)” (Stout v. Turney (1978) 22 Cal.3d 718, 725 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “We have previously held that a plaintiff is only entitled to its actual or ‘out-of-
pocket’ losses suffered because of fiduciary’s negligent misrepresentation under
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section 3333. While the measure of damages under section 3333 might be
greater for a fiduciary’s intentional misrepresentation, we need not address that
issue here.” (Alliance Mortgage Co., supra, 10 Cal.4th at pp. 1249–1250.)
• “The measure of damages for a real estate broker’s intentional misrepresentation
to a buyer for whom he acts as agent is not limited to the out-of-pocket losses
suffered by the buyer. Because the broker is a fiduciary, damages for intentional
fraud may be measured by the broader benefit-of-the-bargain rule.” (Fragale,
supra, 110 Cal.App.4th at p. 232.)
• “[T]he measure of damages for fraud by a fiduciary is out-of-pocket damages,
not the benefit of the bargain computation normally applicable to contract causes
of action.” (Hensley, supra, 90 Cal.App.4th at p. 1085.)
• “Recognizing a split of authority on the matter, we follow those cases adopting
the broader measure of damages under sections 1709 and 3333, a course that is
not only consonant with the position we have taken in the past but just. This
division has consistently applied the broader measure of damages for fiduciary
fraud, refusing to limit damages to the ‘out of pocket’ measure.” (Salahutdin,
supra, 24 Cal.App.4th at pp. 566–567.)
• “Unlike the ‘out of pocket’ measure of damages, which are usually calculated at
the time of the transaction, ‘benefit of the bargain’ damages may appropriately
be calculated as of the date of discovery of the fraud.” (Salahutdin, supra, 24
Cal.App.4th at p. 568.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
• “[O]ne may recover compensation for time and effort expended in reliance on a
defendant’s misrepresentation.” (Block v. Tobin (1975) 45 Cal.App.3d 214, 220
[119 Cal.Rptr. 288], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1893–1900
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.27
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.131 et seq.
(Matthew Bender)
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1925. Affirmative Defense—Statute of Limitations—Fraud or
Mistake
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [name of plaintiff]’s claimed harm occurred
before [insert date three years before date of filing].
[If [name of defendant] proves that [name of plaintiff]’s claimed harm
occurred before [insert date three years before date of filing], [name of
plaintiff]’s lawsuit was still filed on time if [name of plaintiff] proves that
before that date, [he/she/nonbinary pronoun/it] did not discover facts
constituting the fraud or mistake, and with reasonable diligence could
not have discovered those facts.]
New April 2008
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
filed within the applicable three-year period for fraud or mistake. (See Code Civ.
Proc., § 338(d).) Include the second paragraph if the plaintiff alleges that the
delayed-discovery rule applies to avoid the limitation defense. The plaintiff bears the
burden of pleading and proving delayed discovery. (See E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1319 [64 Cal.Rptr.3d 9] [regardless of
which limitation statute applied to case, burden was on plaintiff].)
Sources and Authority
• Statute of Limitations for Fraud or Mistake. Code of Civil Procedure section
338(d).
• “The [Code of Civil Procedure section 338(d) three-year] limitations period . . .
‘does not begin to run until the discovery, by the aggrieved party, of the facts
constituting the fraud or mistake.’ ” (Sun’n Sand, Inc. v. United California Bank
(1978) 21 Cal.3d 671, 701 [148 Cal.Rptr. 329, 582 P.2d 920].)
• “The discovery rule ‘may be expressed by the Legislature or implied by the
courts.’ By statute, the discovery rule applies to fraud actions. (Code Civ. Proc.,
§ 338, subd. (d).) In addition, ‘judicial decisions have declared the discovery rule
applicable in situations where the plaintiff is unable to see or appreciate a breach
has occurred.’ ” (E-Fab, Inc., supra, 153 Cal.App.4th at p. 1318, internal
citations omitted.)
• “Code of Civil Procedure section 338, subdivision (d), effectively codifies the
delayed discovery rule in connection with actions for fraud, providing that a
cause of action for fraud ‘is not to be deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the fraud or mistake.’
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In a case such as this, that date is the date the complaining party learns, or at
least is put on notice, that a representation was false.” (Brandon G. v. Gray
(2003) 111 Cal.App.4th 29, 35 [3 Cal.Rptr.3d 330].)
• “This discovery element has been interpreted to mean ‘the discovery by the
aggrieved party of the fraud or facts that would lead a reasonably prudent person
to suspect fraud.’ ” (Doe v. Roman Catholic Bishop of Sacramento (2010) 189
Cal.App.4th 1423, 1430 [117 Cal.Rptr.3d 597], original italics.)
• “Case law has interpreted this accrual provision to mean that ‘a cause of action
[under Code Civ. Proc., § 338(d)] accrues, and the limitations period commences
to run, when the aggrieved party could have discovered the . . . mistake through
the exercise of reasonable diligence.’ ” (Creditors Collection Serv. v. Castaldi
(1995) 38 Cal.App.4th 1039, 1044 [45 Cal.Rptr. 2d 511].)
• “One [exception to the limitations period] is the doctrine of fraudulent
concealment, which tolls the statute of limitations if a defendant’s deceptive
conduct ‘has caused a claim to grow stale.’ ” (Fuller v. First Franklin Financial
Corp. (2013) 216 Cal.App.4th 955, 962 [163 Cal.Rptr.3d 44].)
• “ ‘Technical rules as to when a cause of action accrues apply therefore only in
those cases which are free from fraud committed by the defendant. Said section
338, subdivision 4, . . . recognizes the nonapplicability of those technical rules
where the fraud of the defendant may be so concealed that in the absence of
circumstances imposing greater diligence on the plaintiff, the cause of action is
deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the
defendant by concealing his fraud, would effectively block recovery by the
plaintiff because of the intervention of the statute of limitations.’ ” (Snow v. A.
H. Robins Co. (1985) 165 Cal.App.3d 120, 127–128 [211 Cal.Rptr. 271], internal
citation omitted.)
• “[C]ourts have relied on the nature of the relationship between defendant and
plaintiff to explain application of the delayed accrual rule. The rule is generally
applicable to confidential or fiduciary relationships. The fiduciary relationship
carries a duty of full disclosure, and application of the discovery rule ‘prevents
the fiduciary from obtaining immunity for an initial breach of duty by a
subsequent breach of the obligation of disclosure.’ ” (Parsons v. Tickner (1995)
31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810], internal citations omitted.)
• “ ‘The provision tolling operation of [section 338(d)] until discovery of the fraud
has long been treated as an exception and, accordingly, this court has held that if
an action is brought more than three years after commission of the fraud,
plaintiff has the burden of pleading and proving that he did not make the
discovery until within three years prior to the filing of his complaint.’ ” (Samuels
v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701], internal
citation omitted.)
• “Only causes of action based on actual fraud are governed by section 338,
subdivision (d). This includes . . . causes of action based on fraudulent
concealment, which ‘is a species of fraud or deceit. [Citations.]’ ” (Stueve Bros.
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Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 322 [166 Cal.Rptr.3d
116].)
• “[T]he section 338, subdivision (d), three-year statute of limitations applies to an
unjust enrichment cause of action based on mistake.” (Federal Deposit Ins.
Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38], original
italics.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 653–663
Rylaarsdam & Edmon, California Practice Guide: Civil Procedure Before Trial, Ch.
6-C, Answer, ¶¶ 6:462–6:462.2 (The Rutter Group)
California Civil Procedure Before Trial, Ch. 25, Answer (Cont.Ed.Bar 4th ed.)
§ 25.46
43 California Forms of Pleading and Practice, Ch. 489, Relief From Judgments and
Orders, § 489.261 (Matthew Bender)
7 California Points and Authorities, Ch. 70A, Defaults and Relief From Orders and
Judgments: Equitable Remedies, §§ 70A.32, 70A.52 et seq. (Matthew Bender)
1926–1999. Reserved for Future Use
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VF-1900. Intentional Misrepresentation
We answer the questions submitted to us as follows:
1. Did [name of defendant] make a false representation of [a] fact[s]
to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know that the representation was false, or
did [he/she/nonbinary pronoun] make the representation recklessly
and without regard for its truth?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] intend that [name of plaintiff] rely on the
representation?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] reasonably rely on the representation?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff]’s reliance on [name of defendant]’s
representation a substantial factor in causing harm to [name of
plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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VF-1900 FRAUD OR DECEIT
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future eco- $ ]
nomic loss
Total Future Economic Damages: $
]
[c. Past noneconomic loss, including [physical pain/mental
suffering:]
$ ]
[d. Future noneconomic loss, including [physical pain/mental
suffering:]
$ ]
TOTAL $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1900, Intentional Misrepresentation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the defendant alleges that the representations referred to in question 1 were
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opinions only, additional questions may be required on this issue. See CACI No.
1904, Opinions as Statements of Fact.
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. However, if both intentional misrepresentation and negligent
misrepresentation (see CACI No. 1903) are to be presented to the jury in the
alternative, the preferred practice would seem to be that this verdict form and VF-
1903, Negligent Misrepresentation, be kept separate and presented in the alternative.
If different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
With respect to the same misrepresentation, question 2 above cannot be answered
“yes” and question 3 of VF-1903 cannot also be answered “no.” The jury may
continue to answer the next question from one form or the other, but not both.
If both intentional and negligent misrepresentation are before the jury, it is important
to distinguish between a statement made recklessly and without regard for the truth
(see question 2 above) and one made without reasonable grounds for believing it is
true (see CACI No. VF-1903, question 3). Question 2 of VF-1903 should be
included to clarify that the difference is that for negligent misrepresentation, the
defendant honestly believes that the statement is true. (See Bily v. Arthur Young &
Co. (1992) 3 Cal.4th 370, 407–408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1901. Concealment
We answer the questions submitted to us as follows:
1. Did [name of defendant] intentionally fail to disclose [a] fact[s] that
[name of plaintiff] did not know and could not reasonably have
discovered?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] intend to deceive [name of plaintiff] by
concealing the fact?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Had the omitted information been disclosed, would [name of
plaintiff] reasonably have behaved differently?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s concealment a substantial factor in
causing harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1901, Concealment.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Modify question 1 by referring to one of the other three grounds for concealment
listed in element 1 of CACI No. 1901, Concealment, depending on which ground is
applicable to the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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VF-1901 FRAUD OR DECEIT
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1902. False Promise
We answer the questions submitted to us as follows:
1. Did [name of defendant] make a promise to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] intend to perform this promise when [he/
she/nonbinary pronoun] made it?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] intend that [name of plaintiff] rely on this
promise?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] reasonably rely on this promise?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] perform the promised act?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff]’s reliance on [name of defendant]’s promise
a substantial factor in causing harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
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the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future eco- $ ]
nomic loss
Total Future Economic Damages: $
]
[c. Past noneconomic loss, including [physical pain/mental
suffering:]
$ ]
[d. Future noneconomic loss, including [physical pain/mental
suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2015, December 2016
Directions for Use
This verdict form is based on CACI No. 1902, False Promise.
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FRAUD OR DECEIT VF-1902
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If multiple promises are at issue, question 1 should be repeated to specify each one;
for example: “1. Did [name of defendant] promise [name of plaintiff] that [specify
promise]?” (See Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775,
794 [211 Cal.Rptr.3d 743].) The rest of the questions will need to be repeated for
each promise.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action (or from different promises), replace the damages tables in all of the verdict
forms with CACI No. VF-3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-1903. Negligent Misrepresentation
We answer the questions submitted to us as follows:
1. Did [name of defendant] make a false representation of [a] fact[s]
to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[2. Did [name of defendant] honestly believe that the representation
was true when [he/she/nonbinary pronoun] made it?
[2. Yes No
[2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
3. Did [name of defendant] have reasonable grounds for believing the
representation was true when [he/she/nonbinary pronoun] made it?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] intend that [name of plaintiff] rely on the
representation?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] reasonably rely on the representation?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff]’s reliance on [name of defendant]’s
representation a substantial factor in causing harm to [name of
plaintiff]?
6. Yes No
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FRAUD OR DECEIT VF-1903
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future eco- $ ]
nomic loss
Total Future Economic Damages: $
]
[c. Past noneconomic loss, including [physical pain/mental
suffering:]
$ ]
[d. Future noneconomic loss, including [physical pain/mental
suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016, May 2017
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VF-1903 FRAUD OR DECEIT
Directions for Use
This verdict form is based on CACI No. 1903, Negligent Misrepresentation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the defendant alleges that the representations referred to in question 1 were
opinions only, additional questions may be required on this issue. See CACI No.
1904, Opinions as Statements of Fact.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. However, if both negligent misrepresentation and intentional
misrepresentation (see CACI No. 1903) are to be presented to the jury in the
alternative, the preferred practice would seem to be that this verdict form and VF-
1900, Intentional Misrepresentation, be kept separate and presented in the
alternative. If different damages are recoverable on different causes of action,
replace the damages tables in all of the verdict forms with CACI No. VF-3920,
Damages on Multiple Legal Theories.
With respect to the same misrepresentation, question 3 above cannot be answered
“no” and question 2 of VF-1900 cannot also be answered “yes.” The jury may
continue to answer the next question from one form or the other, but not both.
If both intentional and negligent misrepresentation are before the jury, it is important
to distinguish between a statement made without reasonable grounds for believing it
is true (see question 3 above) and one made recklessly and without regard for the
truth (see CACI No. VF-1900, question 2). Include question 2 to clarify that the
difference is that for negligent misrepresentation, the defendant honestly believes
that the statement is true. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,
407–408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1904–VF-1999. Reserved for Future Use
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TRESPASS
2000. Trespass—Essential Factual Elements
2001. Trespass—Extrahazardous Activities
2002. Trespass to Timber—Essential Factual Elements (Civ. Code, § 3346)
2003. Damage to Timber—Willful and Malicious Conduct
2004. “Intentional Entry” Explained
2005. Affirmative Defense—Necessity
2006–2019. Reserved for Future Use
2020. Public Nuisance—Essential Factual Elements
2021. Private Nuisance—Essential Factual Elements
2022. Private Nuisance—Balancing-Test Factors—Seriousness of Harm and Public
Benefit
2023. Failure to Abate Artificial Condition on Land Creating Nuisance
2024–2029. Reserved for Future Use
2030. Affirmative Defense—Statute of Limitations—Trespass or Private Nuisance
2031. Damages for Annoyance and Discomfort—Trespass or Nuisance
2032–2099. Reserved for Future Use
VF-2000. Trespass
VF-2001. Trespass—Affirmative Defense—Necessity
VF-2002. Trespass—Extrahazardous Activities
VF-2003. Trespass to Timber (Civ. Code, § 3346)
VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ. Code, § 3346;
Code Civ. Proc., § 733)
VF-2005. Public Nuisance
VF-2006. Private Nuisance
VF-2007–VF-2099. Reserved for Future Use
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2000. Trespass—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/
nonbinary pronoun/its] property. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] [intentionally/, although not intending to
do so, [recklessly [or] negligently]] entered [name of plaintiff]’s
property] [or]
2. [intentionally/, although not intending to do so, [recklessly [or]
negligently]] caused [another person/[insert name of thing]] to
enter [name of plaintiff]’s property];
3. That [name of plaintiff] did not give permission for the entry [or
that [name of defendant] exceeded [name of plaintiff]’s permission];
4. That [name of plaintiff] was [actually] harmed; and
5. That [name of defendant]’s [entry/conduct] was a substantial
factor in causing [name of plaintiff]’s harm.
[Entry can be on, above, or below the surface of the land.]
[Entry may occur indirectly, such as by causing vibrations that damage
the land or structures or other improvements on the land.]
New September 2003; Revised June 2013, May 2020
Directions for Use
With regard to element 2, liability for trespass may be imposed for conduct that is
intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples
v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent
to trespass means only that the person intended to be in the particular place where
the trespass is alleged to have occurred. (Miller v. National Broadcasting Corp.
(1986) 187 Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].) Liability may be also
based on the defendant’s unintentional, but negligent or reckless, act, for example,
an automobile accident. An intent to damage is not necessary. (Meyer v. Pacific
Employers Insurance Co. (1965) 233 Cal.App.2d 321, 326 [43 Cal.Rptr. 542].)
It is no defense that the defendant mistakenly, but in good faith, believed that the
defendant had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14
Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word
“intentionally” in element 2 might be confusing to the jury. To alleviate this possible
confusion, give the third option to CACI No. 2004, “Intentional Entry” Explained.
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If plaintiff is seeking nominal damages as an alternative to actual damages, insert
the following paragraph above element 4, add “and” at the end of element 2, and
adjust punctuation accordingly:
If you find all of the above, then the law assumes that [name of plaintiff] has
been harmed and [name of plaintiff] is entitled to a nominal sum such as one
dollar. [Name of plaintiff] is entitled to additional damages if [name of plaintiff]
proves the following:
The last sentence of the above paragraph, along with the final two elements of this
instruction, should be omitted if plaintiff is seeking nominal damages only. Read
“actually” in the fourth element only if nominal damages are also being sought.
Nominal damages alone are not available in cases involving intangible intrusions
such as noise and vibrations; proof of actual damage to the property is required:
“[T]he rule is that actionable trespass may not be predicated upon nondamaging
noise, odor, or light intrusion . . . .” (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal
citation omitted.)
For an instruction on control of property, see CACI No. 1002, Extent of Control
Over Premises Area, in the Premises Liability series.
Sources and Authority
• “Generally, landowners and tenants have a right to exclude persons from
trespassing on private property; the right to exclude persons is a fundamental
aspect of private property ownership.” (Ralphs Grocery Co. v. Victory
Consultants, Inc. (2017) 17 Cal.App.5th 245, 258 [225 Cal.Rptr.3d 305].)
• “ ‘Trespass is an unlawful interference with possession of property.’ The
elements of trespass are: (1) the plaintiff’s ownership or control of the property;
(2) the defendant’s intentional, reckless, or negligent entry onto the property; (3)
lack of permission for the entry or acts in excess of permission; (4) harm; and
(5) the defendant’s conduct was a substantial factor in causing the harm. (See
CACI No. 2000.)” (Ralphs Grocery Co., supra, 17 Cal.App.5th at pp. 261–262,
internal citation omitted.)
• “[I]n order to state a cause of action for trespass a plaintiff must allege an
unauthorized and tangible entry on the land of another, which interfered with the
plaintiff’s exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.5th
1160, 1174 [227 Cal.Rptr.3d 390].)
• “The emission of sound waves which cause actual physical damage to property
constitutes a trespass. Liability for trespass may be imposed for conduct which is
intentional, reckless, negligent or the result of an extra-hazardous activity.”
(Staples, supra, 189 Cal.App.3d at p. 1406, internal citations omitted.)
• “California’s definition of trespass is considerably narrower than its definition of
nuisance. ‘ “A trespass is an invasion of the interest in the exclusive possession
of land, as by entry upon it . . . . A nuisance is an interference with the interest
in the private use and enjoyment of the land and does not require interference
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with the possession.” ’ California has adhered firmly to the view that ‘[t]he cause
of action for trespass is designed to protect possessory—not necessarily
ownership—interests in land from unlawful interference.’ ” (Capogeannis v.
Superior Court (1993) 12 Cal.App.4th 668, 674 [15 Cal.Rptr.2d 796], internal
citations omitted.)
• “In the context of a trespass action, ‘possession’ is synonymous with
‘occupation’ and connotes a subjection of property to one’s will and control.”
(Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1105 [247 Cal.Rptr.3d 868].)
• “ ‘[A] trespass may be committed by the continued presence on the land of a
structure, chattel, or other thing which the actor has tortiously placed there,
whether or not the actor has the ability to remove it.’ Under this definition,
‘tortious conduct’ denotes that conduct, whether of act or omission, which
subjects the actor to liability under the principles of the law of torts.” (Newhall
Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345 [23
Cal.Rptr.2d 377], internal citations omitted.)
• The common-law distinction between direct and constructive trespass is not
followed in California. A trespass may be committed by consequential and
indirect injuries as well as by direct and forcible harm. (Gallin v. Poulou (1956)
140 Cal.App.2d 638, 641 [295 P.2d 958].)
• “ ‘It is a well-settled proposition that the proper party plaintiff in an action for
trespass to real property is the person in actual possession. No averment of title
in plaintiff is necessary. [Citations.]’ . . . ‘A defendant who is a mere stranger to
the title will not be allowed to question the title of a plaintiff in possession of
the land. It is only where the trespasser claims title himself, or claims under the
real owner, that he is allowed to attack the title of the plaintiff whose peaceable
possession he has disturbed.’ ” (Veiseh, supra, 35 Cal.App.5th at p. 1104,
internal citation omitted.)
• “An action for trespass may technically be maintained only by one whose right
to possession has been violated; however, an out-of-possession property owner
may recover for an injury to the land by a trespasser which damages the
ownership interest.” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769,
774 [184 Cal.Rptr. 308], internal citation omitted.)
• “Under the forcible entry statutes the fact that a defendant may have title or the
right to possession of the land is no defense. The plaintiff’s interest in peaceable
even if wrongful possession is secured against forcible intrusion by conferring
on him the right to restitution of the premises, the primary remedy, and
incidentally awarding damages proximately caused by the forcible entry.” (Allen
v. McMillion (1978) 82 Cal.App.3d 211, 218–219 [147 Cal.Rptr. 77], internal
citations omitted.)
• “Where there is a consensual entry, there is no tort, because lack of consent is
an element of the wrong.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66
Cal.App.3d 1, 16–17 [135 Cal.Rptr. 915].)
• “ ‘A conditional or restricted consent to enter land creates a privilege to do so
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only insofar as the condition or restriction is complied with.’ ” (Civic Western
Corp., supra, 66 Cal.App.3d at p. 17, quoting Rest.2d Torts, § 168.)
• “Where one has permission to use land for a particular purpose and proceeds to
abuse the privilege, or commits any act hostile to the interests of the lessor, he
becomes a trespasser. [¶] ‘A good faith belief that entry has been authorized or
permitted provides no excuse for infringement of property rights if consent was
not in fact given by the property owner whose rights are at issue. Accordingly,
by showing they gave no authorization, [plaintiffs] established the lack of
consent necessary to support their action for injury to their ownership
interests.’ ” (Cassinos, supra, 14 Cal.App.4th at p. 1780, internal citations
omitted.)
• “ ‘[T]he intent required as a basis for liability as a trespasser is simply an intent
to be at the place on the land where the trespass allegedly occurred . . . . The
defendant is liable for an intentional entry although he has acted in good faith,
under the mistaken belief, however reasonable, that he is committing no
wrong.’ ” (Miller, supra, 187 Cal.App.3d at pp. 1480–1481, internal citation
omitted.)
• “The general rule is simply that damages may be recovered for annoyance and
distress, including mental anguish, proximately caused by a trespass.” (Armitage
v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], internal citations
omitted.)
• “Causes of action for conversion and trespass support an award for exemplary
damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137,
148 [173 Cal.Rptr. 751], internal citation omitted.)
• “It is true that an action for trespass will support an award of nominal damages
where actual damages are not shown. However, nominal damages need not be
awarded where no actual loss has occurred. ‘Failure to return a verdict for
nominal damages is not in general ground for reversing a judgment or granting a
new trial.’ ” (Staples, supra, 189 Cal.App.3d at p. 1406, internal citations
omitted.)
• “Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to
leave; by throwing or placing something on the land; or by causing the entry of
some other person.” ’ A trespass may be on the surface of the land, above it, or
below it. The migration of pollutants from one property to another may
constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance
Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670],
internal citations omitted.)
• “Respondent’s plant was located in a zone which permitted its operation. It
comes within the protection of section 731a of the Code of Civil Procedure
which, subject to certain exceptions, generally provides that where a
manufacturing or commercial operation is permitted by local zoning, no private
individual can enjoin such an operation. It has been determined, however, that
this section does not operate to bar recovery for damages for trespassory
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invasions of another’s property occasioned by the conduct of such manufacturing
or commercial use.” (Roberts v. Permanente Corp. (1961) 188 Cal.App.2d 526,
529 [10 Cal.Rptr. 519], internal citations omitted.)
• “[A]s a matter of law, [plaintiff] cannot state a cause of action against the
[defendants] for trespassing on the Secondary Access Easement because they
own that land and her easement does not give her a possessory right, not to
mention an exclusive possessory right in that property.” (McBride, supra, 18
Cal.App.5th at p. 1174.)
• “[A] failure to comply with one or more provisions of the California Uniform
Transfers to Minors Act does not render the grantor’s continued possession and
control of the real property unlawful for purposes of the tort of trespass to
realty.” (Veiseh, supra, 35 Cal.App.5th at p. 1107.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 803–805
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, §§ 550.11, 550.19
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.20 (Matthew Bender)
1 California Civil Practice: Torts §§ 18:1, 18:4–18:8, 18:10 (Thomson Reuters)
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2001. Trespass—Extrahazardous Activities
[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/
nonbinary pronoun/its] property. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] was engaged in [insert extrahazardous
activity];
3. That [insert extrahazardous activity] caused [insert thing] to enter
[name of plaintiff]’s property;
4. That [name of plaintiff] did not give permission for the entry [or
that [name of defendant] exceeded [name of plaintiff]’s permission];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[Entry can be on, above, or below the surface of the land.]
[Entry may occur indirectly, such as by causing vibrations that damage
the land or property on the land.]
New September 2003
Directions for Use
Nominal damages alone are not available in cases involving intangible intrusions
such as noise and vibrations; proof of actual damage to the property is required:
“[T]he rule is that actionable trespass may not be predicated upon nondamaging
noise, odor, or light intrusion . . . .” (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal
citation omitted.)
“Whether an activity is ultrahazardous is a question of law to be determined by the
court.” (Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 785 [56
Cal.Rptr. 128].)
Sources and Authority
• “[W]e conclude that the rule of the Restatement is sound, and that in this state
there is no liability for a trespass unless the trespass is intentional, the result of
recklessness or negligence, or the result of engaging in an extra-hazardous
activity.” (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 645 [295 P.2d 958].)
• “Section 520 of the Restatement of Torts defines ultrahazardous activity as
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follows: ‘An activity is ultrahazardous if it (a) necessarily involves a risk of
serious harm to the person, land or chattels of others which cannot be eliminated
by the exercise of the utmost care, and (b) is not a matter of common usage.’
California has apparently accepted the Restatement definition.” (Smith v.
Lockheed Propulsion Co., supra, 247 Cal.App.2d at p. 785.)
• “Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to
leave; by throwing or placing something on the land; or by causing the entry of
some other person. . . .” ’ A trespass may be on the surface of the land, above it,
or below it. The migration of pollutants from one property to another may
constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance
Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 803–805
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.15 (Matthew
Bender)
California Civil Practice: Torts §§ 18:1, 18:4–18:8, 18:10 (Thomson Reuters)
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2002. Trespass to Timber—Essential Factual Elements (Civ. Code,
§ 3346)
[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/
nonbinary pronoun/its] property and [cut down or damaged trees/took
timber]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] intentionally entered [name of plaintiff]’s
property and [cut down or damaged trees/took timber] located on
the property;
2. [or]
2. That [name of defendant], although not intending to do so,
[recklessly/ [or] negligently] entered [name of plaintiff]’s property
and damaged trees located on the property;
3. That [name of plaintiff] did not give permission to [cut down or
damage the trees/take timber] [or that [name of defendant]
exceeded [name of plaintiff]’s permission];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[In considering whether [name of plaintiff] was harmed, you may take
into account the lost aesthetics and functionality of an injured tree.]
New September 2003; Revised June 2013, May 2020
Directions for Use
Give this instruction for loss of timber or damages to trees. Note that actual
damages are to be doubled regardless of the defendant’s intent. (See Civ. Code,
§ 3346(a).) If treble damages for willful and malicious conduct are sought, also give
CACI No. 2003, Damage to Timber—Willful and Malicious Conduct.
With regard to element 2, liability for trespass may be imposed for conduct that is
intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples
v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent
to trespass means only that the person intended to be in the particular place where
the trespass is alleged to have occurred. (Miller v. National Broadcasting Corp.
(1986) 187 Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].) Liability may be also
based on the defendant’s unintentional, but negligent or reckless, act; for example an
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automobile accident that damages a tree. An intent to damage is not necessary.
(Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App.2d 321 [43 Cal.Rptr.
542].)
It is no defense that the defendant mistakenly, but in good faith, believed that the
defendant had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14
Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word
“intentionally” in element 2 might be confusing to the jury. To alleviate this possible
confusion, give the third option to CACI No. 2004, “Intentional Entry” Explained.
See also the Sources and Authority to CACI No. 2000, Trespass—Essential Factual
Elements.
Include the last paragraph if the plaintiff claims harm based on lost aesthetics and
functionality.
Sources and Authority
• Damages for Injury to Timber. Civil Code section 3346(a).
• “[T]he effect of [Civil Code] section 3346 as amended, read together with [Code
of Civil Procedure] section 733, is that the Legislature intended, insofar as wilful
and malicious trespass is concerned under either section, to leave the imposition
of treble damages discretionary with the court, but to place a floor upon that
discretion at double damages which must be applied whether the trespass be
wilful and malicious or casual and involuntary, etc. There are now three
measures of damages applicable to the pertinent types of trespass: (1) for wilful
and malicious trespass the court may impose treble damages but must impose
double damages; (2) for casual and involuntary trespass, etc., the court must
impose double damages; and (3) for trespass under authority actual damages.”
(Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645, fn.3 [199 Cal.Rptr.3d
705].)
• “The measure of damages to be doubled or trebled under Code of Civil
Procedure section 733 and Civil Code section 3346 is not limited to the value of
the timber or the damage to the trees. The statutes have been interpreted to
permit doubling or trebling the full measure of compensable damages for
tortious injury to property.” (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312
[212 Cal.Rptr.3d 920] [annoyance and discomfort damages resulting from
tortious injuries to timber or trees are subject to the damage multiplier under
Code of Civil Procedure section 733 and Civil Code section 3346].)
• The damages provisions in sections 3346 and 733 must be “treated as penal and
punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr.
857], internal citation omitted.)
• “ ‘However, due to the penal nature of these provisions, the damages should be
neither doubled nor tripled under section 3346 if punitive damages are awarded
under section 3294. That would amount to punishing the defendant twice and is
not necessary to further the policy behind section 3294 of educating blunderers
(persons who mistake location of boundary lines) and discouraging rogues
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(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations
omitted.)
• “Diminution in market value . . . is not an absolute limitation; several other
theories are available to fix appropriate compensation for the plaintiff’s loss. . . .
[¶] One alternative measure of damages is the cost of restoring the property to
its condition prior to the injury. Courts will normally not award costs of
restoration if they exceed the diminution in the value of the property; the
plaintiff may be awarded the lesser of the two amounts.” (Heninger v. Dunn
(1980) 101 Cal.App.3d 858, 862 [162 Cal.Rptr. 104], internal citations omitted.)
• “The rule precluding recovery of restoration costs in excess of diminution in
value is, however, not of invariable application. Restoration costs may be
awarded even though they exceed the decrease in market value if ‘there is a
reason personal to the owner for restoring the original condition,’ or ‘where there
is reason to believe that the plaintiff will, if fact, make the repairs.’ ” (Heninger,
supra, 101 Cal.App.3d at p. 863, internal citations omitted.)
• “Courts have stressed that only reasonable costs of replacing destroyed trees
with identical or substantially similar trees may be recovered.” (Heninger, supra,
101 Cal.App.3d at p. 865.)
• “As a tree growing on a property line, the Aleppo pine tree was a ‘line tree.’
Civil Code section 834 provides: ‘Trees whose trunks stand partly on the land of
two or more coterminous owners, belong to them in common.’ As such, neither
owner ‘is at liberty to cut the tree without the consent of the other, nor to cut
away the part which extends into his land, if he thereby injures the common
property in the tree.’ ” (Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278 [146
Cal.Rptr.3d 419].)
• “[W]hen considering the diminished value of an injured tree, the finder of fact
may account for lost aesthetics and functionality.” (Rony v. Costa (2012) 210
Cal.App.4th 746, 755 [148 Cal.Rptr.3d 642].)
• “Although [plaintiff] never quantified the loss of aesthetics at $15,000, she need
not have done so. As with other hard-to-quantify injuries, such as emotional and
reputational ones, the trier of fact court was free to place any dollar amount on
aesthetic harm, unless the amount was ‘ “so grossly excessive as to shock the
moral sense, and raise a reasonable presumption that the [trier of fact] was under
the influence of passion or prejudice.” ’ ” (Rony, supra, 210 Cal.App.4th at p.
756.)
• “[P]laintiffs here showed (i) the tree’s unusual size and form made it very
unusual for a ‘line tree’—it functioned more like two trees growing on the
separate properties; (ii) the tree’s attributes, such as its broad canopy, provided
significant benefits to the [plaintiffs’] property; and (iii) the [plaintiffs] placed
great personal value on the tree. The trial court correctly recognized that it could
account for these factors when determining damages, including whether or not
damages should be reduced.” (Kallis, supra, 208 Cal.App.4th at p. 1279.)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1917−1919
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.10 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
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2003. Damage to Timber—Willful and Malicious Conduct
[Name of plaintiff] also claims that [name of defendant]’s conduct in
cutting down, damaging, or harvesting [name of plaintiff]’s trees was
willful and malicious.
“Willful” simply means that [name of defendant]’s conduct was
intentional.
“Malicious” means that [name of defendant] acted with intent to vex,
annoy, harass, or injure, or that [name of defendant]’s conduct was done
with a knowing disregard of the rights or safety of another. A person
acts with knowing disregard when the person is aware of the probable
dangerous consequences of the person’s conduct and deliberately fails to
avoid those consequences.
New September 2003; Revised December 2010, May 2020
Directions for Use
Read this instruction if the plaintiff is seeking double or treble damages because the
defendant’s conduct was willful and malicious. (See Civ. Code, § 3346; Code Civ.
Proc., § 733; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1742 [33 Cal.Rptr.2d
391].) The judge should ensure that this finding is noted on the special verdict form.
The jury should find the actual damages suffered. If the jury finds willful and
malicious conduct, the court must award double damages and may award treble
damages. (See Ostling, supra, 27 Cal.App.4th at p. 1742.)
Sources and Authority
• Damages for Injury to Timber. Civil Code section 3346(a).
• Treble Damages for Injury to Timber. Code of Civil Procedure section 733.
• “[T]he effect of [Civil Code] section 3346 as amended, read together with [Code
of Civil Procedure] section 733, is that the Legislature intended, insofar as wilful
and malicious trespass is concerned under either section, to leave the imposition
of treble damages discretionary with the court, but to place a floor upon that
discretion at double damages which must be applied whether the trespass be
wilful and malicious or casual and involuntary, etc. There are now three
measures of damages applicable to the pertinent types of trespass: (1) for wilful
and malicious trespass the court may impose treble damages but must impose
double damages; (2) for casual and involuntary trespass, etc., the court must
impose double damages; and (3) for trespass under authority actual damages.”
(Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645, fn. 3 [199 Cal.Rptr.3d
705].)
• “The measure of damages to be doubled or trebled under Code of Civil
Procedure section 733 and Civil Code section 3346 is not limited to the value of
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the timber or the damage to the trees. The statutes have been interpreted to
permit doubling or trebling the full measure of compensable damages for
tortious injury to property.” (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312
[212 Cal.Rptr.3d 920] [annoyance and discomfort damages resulting from
tortious injuries to timber or trees are subject to the damage multiplier under
Code of Civil Procedure section 733 and Civil Code section 3346].)
• The damages provisions in sections 3346 and 733 must be “treated as penal and
punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr.
857], internal citation omitted.)
• “ ‘However, due to the penal nature of these provisions, the damages should be
neither doubled nor tripled under section 3346 if punitive damages are awarded
under section 3294. That would amount to punishing the defendant twice and is
not necessary to further the policy behind section 3294 of educating blunderers
(persons who mistake location of boundary lines) and discouraging rogues
(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations
omitted.)
• “ ‘ “ ‘[T]reble damages may only be awarded when the wrongdoer intentionally
acted wilfully or maliciously. The intent required is the intent to vex, harass, or
annoy or injure the plaintiff. It is a question of fact for the trial court whether or
not such intent exists.’ [Civil Code section 3346 and Code of Civil Procedure
section 733] are permissive and not mandatory and while they ‘prescribe the
degree of penalty to be invoked they commit to the sound discretion of the trial
court the facts and circumstances under which it shall be invoked.’ ” ’ ” (Salazar,
supra, 245 Cal.App.4th at p. 646, internal citation omitted.)
• “Although neither section [3346 or 733] expressly so provides, it is now settled
that to warrant such an award of treble damages it must be established that the
wrongful act was willful and malicious.” (Caldwell v. Walker (1963) 211
Cal.App.2d 758, 762 [27 Cal.Rptr. 675], internal citations omitted.)
• “A proper and helpful analogue here is the award of exemplary damages under
section 3294 of the Civil Code when a defendant has been guilty, inter alia, of
‘malice, express or implied.’ . . . ‘In order to warrant the allowance of such
damages the act complained of must not only be wilful, in the sense of
intentional, but it must be accompanied by some aggravating circumstance,
amounting to malice. Malice implies an act conceived in a spirit of mischief or
with criminal indifference towards the obligations owed to others. There must be
an intent to vex, annoy or injure. Mere spite or ill will is not sufficient.’ . . .
Malice may consist of a state of mind determined to perform an act with
reckless or wanton disregard of or indifference to the rights of others. Since a
defendant rarely admits to such a state of mind, it must frequently be established
from the circumstances surrounding his allegedly malicious acts.” (Caldwell,
supra, 211 Cal.App.2d at pp. 763–764, internal citations omitted.)
• “Under [Health and Safety Code] section 13007, a tortfeasor generally is liable
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to the owner of property for damage caused by a negligently set fire. ‘[T]he
statute places no restrictions on the type of property damage that is
compensable.’ Such damages might include, for example, damage to structures,
to movable personal property, to soil, or to undergrowth; damages may even
include such elements as the lost profits of a business damaged by fire. If the fire
also damages trees—that is, causes ‘injuries to . . . trees . . . upon the land of
another’—then the actual damages recoverable under section 13007 may be
doubled (for negligently caused fires) or trebled (for fires intended to spread to
the plaintiff’s property) pursuant to section 3346.” (Kelly v. CB&I Constructors,
Inc. (2009) 179 Cal.App.4th 442, 461 [102 Cal.Rptr.3d 32], internal citations
omitted; but see Gould v. Madonna (1970) 5 Cal.App.3d 404, 407–408 [85
Cal.Rptr. 457] [Civ. Code, § 3346 does not apply to fires negligently set; Health
& Saf. Code, § 13007 provides sole remedy].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1918
4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expenses and
Economic Loss, § 52.34 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 350, Logs and Timber, § 350.12
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
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2004. “Intentional Entry” Explained
[An entry is intentional if a person knowingly goes onto the property of
another or knowingly causes something to go onto that property.]
[An entry is intentional if a person engages in conduct that is
substantially certain to cause something to go onto that property.]
[Intent to trespass means only that a person intended to be in the
particular location where the trespass is alleged to have occurred. An
entry is intentional even if the person reasonably but mistakenly thought
that the person had a right to come onto that property.]
An intent to do harm to the property or to the owner is not required.
New September 2003; Revised June 2013, May 2020
Directions for Use
This instruction is not intended for general use in every case. Give one of the three
bracketed options if an issue regarding the intent of the entry is raised and further
explanation is required. The third option should be given if the entry could appear
to the jury to be unintentional, such as if the defendant was not aware that the
defendant was trespassing. (See Miller v. National Broadcasting Corp. (1986) 187
Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].)
Sources and Authority
• “The doing of an act which will to a substantial certainty result in the entry of
foreign matter upon another’s land suffices for an intentional trespass to land
upon which liability may be based. It was error to instruct the jury that an
‘intent to harm’ was required.” (Roberts v. Permanente Corp. (1961) 188
Cal.App.2d 526, 530–531 [10 Cal.Rptr. 519], internal citation omitted.)
• An instruction on the definition of intentional trespass is considered a proper
statement of law. Failure to give this instruction on request where appropriate is
error. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1407 [235 Cal.Rptr. 165].)
• “As Prosser and Keeton on Torts . . . explained, ‘[t]he intent required as a basis
for liability as a trespasser is simply an intent to be at the place on the land
where the trespass allegedly occurred . . . . The defendant is liable for an
intentional entry although he has acted in good faith, under the mistaken belief,
however reasonable, that he is committing no wrong.’ ” (Miller, supra, 187
Cal.App.3d at pp. 1480–1481, internal citation omitted.)
• “Intent to cause damage was not, however, an element of [trespass] and . . . the
trespasser was liable for such damage as he caused even though that damage
was not intended or foreseen by him.” (Meyer v. Pacific Employers Ins. Co.
(1965) 233 Cal.App.2d 321, 326 [43 Cal.Rptr. 542].)
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Secondary Sources
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20[3] (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.15 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.40 (Matthew Bender)
California Civil Practice: Torts § 18:4 (Thomson Reuters)
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2005. Affirmative Defense—Necessity
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm, if any, because the entry on to
[name of plaintiff]’s property was lawful. To succeed, [name of defendant]
must prove that it was necessary, or reasonably appeared to [him/her/
nonbinary pronoun/it] to be necessary, to enter the land to prevent serious
harm to a person or property.
New September 2003; Revised October 2008
Sources and Authority
• “[I]t has long [been] recognized that ‘[n]ecessity often justifies an action which
would otherwise constitute a trespass, as where the act is prompted by the
motive of preserving life or property and reasonably appears to the actor to be
necessary for that purpose.’ ” (People v. Ray (1999) 21 Cal.4th 464, 473 [88
Cal.Rptr.2d 1, 981 P.2d 928], internal citations omitted.)
• Restatement Second of Torts, section 197 provides:
(1) One is privileged to enter or remain on land in the possession of
another if it is or reasonably appears to be necessary to prevent
serious harm to
(a) the actor, or his land or chattels, or
(b) the other or a third person, or the land or chattels of either,
unless the actor knows or has reason to know that the one for
whose benefit he enters is unwilling that he shall take such
action.
(2) Where the entry is for the benefit of the actor or a third person,
he is subject to liability for any harm done in the exercise of the
privilege stated in Subsection (1) to any legally protected interest of
the possessor in the land or connected with it, except where the threat
of harm to avert which the entry is made is caused by the tortious
conduct or contributory negligence of the possessor.
• This Restatement section was noted as having been previously cited in People v.
Ray, supra, 21 Cal.4th at p. 474.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 771, 772
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.22[2] (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, §§ 550.22, 550.51
(Matthew Bender)
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22 California Points and Authorities, Ch. 225, Trespass, §§ 225.220, 225.221
(Matthew Bender)
California Civil Practice: Torts § 18:11 (Thomson Reuters)
2006–2019. Reserved for Future Use
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2020. Public Nuisance—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] suffered harm
because [name of defendant] created a nuisance. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant], by acting or failing to act, created a
condition or permitted a condition to exist that [insert one or more
of the following:]
1. [was harmful to health;] [or]
1. [was indecent or offensive to the senses;] [or]
1. [was an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property;] [or]
1. [unlawfully obstructed the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or
basin, or any public park, square, street, or highway;] [or]
1. [was [a/an] [fire hazard/specify other potentially dangerous
condition] to [name of plaintiff]’s property;]
2. That the condition affected a substantial number of people at the
same time;
3. That an ordinary person would be reasonably annoyed or
disturbed by the condition;
4. That the seriousness of the harm outweighs the social utility of
[name of defendant]’s conduct;
[5. That [name of plaintiff] did not consent to [name of defendant]’s
conduct;]
6. That [name of plaintiff] suffered harm that was different from the
type of harm suffered by the general public; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2007, June 2016, November 2017, May
2019, November 2019
Directions for Use
Give this instruction for a claim for public nuisance. For an instruction on private
nuisance, give CACI No. 2021, Private Nuisance—Essential Factual Elements.
While a private nuisance is designed to vindicate individual land ownership
interests, a public nuisance is not dependent on an interference with any particular
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rights of land: The public nuisance doctrine aims at the protection and redress of
community interests. (Citizens for Odor Nuisance Abatement v. City of San Diego
(2017) 8 Cal.App.5th 350, 358 [213 Cal.Rptr.3d 538].)
There is some uncertainty as to whether lack of consent is an element (element 5)
or consent is a defense. Cases clearly list lack of consent with the elements. (See
Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352
[129 Cal.Rptr.3d 719]; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540,
1548 [87 Cal.Rptr.3d 602].) However, other cases have referred to consent as a
defense, albeit in the context of a nuisance action involving parties with interests in
the same property. (See Newhall Land & Farming Co. v. Superior Court (1993) 19
Cal.App.4th 334, 341–345 [23 Cal.Rptr. 2d 377]; Mangini v. Aerojet-General Corp.
(1991) 230 Cal.App.3d 1125, 1138–1140 [281 Cal.Rptr. 827].)
Sources and Authority
• “Nuisance” Defined. Civil Code section 3479.
• Public Nuisance. Civil Code section 3480.
• Action by Private Person for Public Nuisance. Civil Code section 3493.
• Act Done Under Express Authority of Statute. Civil Code section 3482.
• Property Used for Dogfighting and Cockfighting. Civil Code section 3482.8.
• “[T]he exculpatory effect of Civil Code section 3482 has been circumscribed by
decisions of this court. . . . ‘ “A statutory sanction cannot be pleaded in
justification of acts which by the general rules of law constitute a nuisance,
unless the acts complained of are authorized by the express terms of the statute
under which the justification is made, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can be fairly stated
that the Legislature contemplated the doing of the very act which occasions the
injury.” ’ ” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 [142
Cal.Rptr. 429, 572 P.2d 43], internal citation omitted.)
• “Public nuisance and private nuisance ‘have almost nothing in common except
the word “nuisance” itself.’ Whereas private nuisance is designed to vindicate
individual land ownership interests, the public nuisance doctrine has historically
distinct origins and aims at ‘the protection and redress of community interests.’
With its roots tracing to the beginning of the 16th century as a criminal offense
against the crown, public nuisances at common law are ‘offenses against, or
interferences with, the exercise of rights common to the public,’ such as public
health, safety, peace, comfort, or convenience.” (Citizens for Odor Nuisance
Abatement, supra, 8 Cal.App.5th at p. 358, original italics, internal citation
omitted.)
• “The elements of a public nuisance, under the circumstances of this case, are as
follows: (1) the 2007 poisoning obstructed the free use of property, so as to
interfere with the comfortable enjoyment of life or property; (2) the 2007
poisoning affected a substantial number of people; (3) an ordinary person would
be unreasonably annoyed or disturbed by the 2007 poisoning; (4) the seriousness
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of the harm occasioned by the 2007 poisoning outweighed its social utility; (5)
plaintiffs did not consent to the 2007 poisoning; (6) plaintiffs suffered harm as a
result of the 2007 poisoning that was different from the type of harm suffered by
the general public; and (7) the 2007 poisoning was a substantial factor in
causing plaintiffs’ harm.” (Department of Fish & Game, supra, 197 Cal.App.4th
at p. 1352 [citing this instruction].)
• “Where the nuisance alleged is not also a private nuisance as to a private
individual he does not have a cause of action on account of a public nuisance
unless he alleges facts showing special injury to himself in person or property of
a character different in kind from that suffered by the general public.” (Venuto v.
Owens Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [99 Cal.Rptr.
350], internal citations omitted; but see Birke, supra, 169 Cal.App.4th at p. 1550
[“to the extent Venuto . . . can be read as precluding an action to abate a public
nuisance by a private individual who has suffered personal injuries as a result of
the challenged condition, we believe it is an incorrect statement of the law”].)
• “Unlike the private nuisance—tied to and designed to vindicate individual
ownership interests in land—the ‘common’ or public nuisance emerged from
distinctly different historical origins. The public nuisance doctrine is aimed at the
protection and redress of community interests and, at least in theory, embodies a
kind of collective ideal of civil life which the courts have vindicated by
equitable remedies since the beginning of the 16th century.” (People ex rel.
Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103 [60 Cal.Rptr.2d 277, 929 P.2d
596].)
• “[W]hen the nuisance is a private as well as a public one, there is no
requirement the plaintiff suffer damage different in kind from that suffered by the
general public. That is, the plaintiff ‘ “does not lose his rights as a landowner
merely because others suffer damage of the same kind, or even of the same
degree . . . .” ’ ” (Birke, supra, 169 Cal.App.4th at p. 1551, internal citations
omitted.)
• “A public nuisance cause of action is established by proof that a defendant
knowingly created or assisted in the creation of a substantial and unreasonable
interference with a public right.” (People v. ConAgra Grocery Products Co.
(2017) 17 Cal.App.5th 51, 79 [227 Cal.Rptr.3d 499].)
• “Of course, not every interference with collective social interests constitutes a
public nuisance. To qualify . . . the interference must be both substantial and
unreasonable.” (People ex rel. Gallo, supra, 14 Cal.4th at p. 1105.)
• “It is substantial if it causes significant harm and unreasonable if its social utility
is outweighed by the gravity of the harm inflicted.” People v. ConAgra Grocery
Products Co., supra, 17 Cal.App.5th at p. 112.)
• “The fact that the defendants’ alleged misconduct consists of omission rather
than affirmative actions does not preclude nuisance liability.” (Birke, supra, 169
Cal.App.4th at p. 1552 [citing this instruction], internal citation omitted.)
• “A nuisance may be either a negligent or an intentional tort.” (Stoiber v.
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Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal
citation omitted.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
‘ “where liability for the nuisance is predicated on the omission of the owner of
the premises to abate it, rather than on his having created it, then negligence is
said to be involved. . . .” [Citations.]’ ” (City of Pasadena v. Superior Court
(2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422], internal citations
omitted.)
• “An essential element of a cause of action for nuisance is damage or injury.”
(Helix Land Co., Inc. v. City of San Diego (1978) 82 Cal.App.3d 932, 950 [147
Cal.Rptr. 683].)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property . . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “A fire hazard, at least when coupled with other conditions, can be found to be a
public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• “By analogy to the rules governing tort liability, courts apply the same elements
to determine liability for a public nuisance.” (People ex rel. Gallo, supra, 14
Cal.4th at p. 1105, fn. 3, internal citation omitted.)
• “The elements ‘of a cause of action for public nuisance include the existence of
a duty and causation.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542
[107 Cal.Rptr.3d 481], internal citations omitted.)
• “[L]iability for nuisance does not hinge on whether the defendant owns,
possesses or controls the property, nor on whether he is in a position to abate the
nuisance; the critical question is whether the defendant created or assisted in the
creation of the nuisance.” (People v. ConAgra Grocery Products Co., supra, 17
Cal.App.5th at p. 109, original italics.)
• “Causation is an essential element of a public nuisance claim. A plaintiff must
establish a ‘connecting element’ or a ‘causative link’ between the defendant’s
conduct and the threatened harm.” (Citizens for Odor Nuisance Abatement,
supra, 8 Cal.App.5th at p. 359 [citing this instruction], internal citation omitted.)
• “Causation may consist of either ‘(a) an act; or [¶] (b) a failure to act under
circumstances in which the actor is under a duty to take positive action to
prevent or abate the interference with the public interest or the invasion of the
public interest.’ A plaintiff must show the defendant’s conduct was a ‘substantial
factor’ in causing the alleged harm.” (Citizens for Odor Nuisance Abatement,
supra, 8 Cal.App.5th at p. 359 [citing this instruction], internal citation omitted.)
• “ ‘Where negligence and nuisance causes of action rely on the same facts about
lack of due care, the nuisance claim is a negligence claim.’ The nuisance claim
‘stands or falls with the determination of the negligence cause of action’ in such
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cases.” (Melton, supra, 183 Cal.App.4th at p. 542, internal citations omitted.)
• “[W]here, as here, an owner of property seeks damages for creation of a
nuisance by a prior lessee, the lessee has a defense that his use of the property
was lawful and was authorized by the lease; i.e., his use of the property was
undertaken with the consent of the owner.” (Mangini, supra, 230 Cal.App.3d at
p. 1138, original italics.)
• “Nor is a defense of consent vitiated simply because plaintiffs seek damages
based on special injury from public nuisance. ‘Where special injury to a private
person or persons entitles such person or persons to sue on account of a public
nuisance, both a public and private nuisance, in a sense, are in existence.’ ”
(Mangini, supra, 230 Cal.App.3d at p. 1139.)
• “[W]here the law expressly declares something to be a nuisance, then no inquiry
beyond its existence need be made and in this sense its mere existence is said to
be a nuisance per se. [Citation.] But, to rephrase the rule, to be considered a
nuisance per se the object, substance, activity or circumstance at issue must be
expressly declared to be a nuisance by its very existence by some applicable
law.” (People v. ConAgra Grocery Products Co., supra, 17 Cal.App.5th at p.
114.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 152
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
5-D, Common Law Environmental Hazards Liability, ¶¶ 5:140–5:179 (The Rutter
Group)
California Real Property Remedies and Damages (Cont.Ed.Bar 2d ed.) Ch. 11,
Remedies for Nuisance and Trespass, § 11.7
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.04,
17.06 (Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.12
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 et seq. (Matthew
Bender)
California Civil Practice: Torts §§ 17:1–17:3 (Thomson Reuters)
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2021. Private Nuisance—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] suffered harm
because [name of defendant] created a nuisance. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant], by acting or failing to act, created a
condition or permitted a condition to exist that [insert one or more
of the following:]
[was harmful to health;] [or]
[was indecent or offensive to the senses;] [or]
[was an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property;]
[or]
[unlawfully obstructed the free passage or use, in the
customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or
highway;] [or]
[was [a/an] [fire hazard/specify other potentially dangerous
condition] to [name of plaintiff]’s property;]
3. That [[name of defendant]’s conduct in acting or failing to act was
[intentional and unreasonable/unintentional, but negligent or
reckless]/[the condition that [name of defendant] created or
permitted to exist was the result of an abnormally dangerous
activity]];
4. That this condition substantially interfered with [name of
plaintiff]’s use or enjoyment of [his/her/nonbinary pronoun] land;
5. That an ordinary person would reasonably be annoyed or
disturbed by [name of defendant]’s conduct;
[6. That [name of plaintiff] did not consent to [name of defendant]’s
conduct;]
7. That [name of plaintiff] was harmed;
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm; and
9. That the seriousness of the harm outweighs the public benefit of
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[name of defendant]’s conduct.
New September 2003; Revised February 2007, December 2011, December 2015,
June 2016, May 2017, May 2018, May 2019
Directions for Use
Private nuisance liability depends on some sort of conduct by the defendant that
either directly and unreasonably interferes with the plaintiff’s property or creates a
condition that does so. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206
Cal.App.3d 92, 100 [253 Cal.Rptr. 470].) Element 2 requires that the defendant have
acted to create a condition or allowed a condition to exist by failing to act.
The act that causes the interference may be intentional and unreasonable. Or it may
be unintentional but caused by negligent or reckless conduct. Or it may result from
an abnormally dangerous activity for which there is strict liability. However, if the
act is intentional but reasonable, or if it is entirely accidental, there is generally no
liability. (Lussier, supra, 206 Cal.App.3d at p. 100.)
The intent required is only to do the act that interferes, not an intent to cause harm.
(Lussier, supra, 206 Cal.App.3d at pp. 100, 106; see Rest.2d Torts, § 822.) For
example, it is sufficient that one intend to chop down a tree; it is not necessary to
intend that it fall on a neighbor’s property.
If the condition results from an abnormally dangerous activity, it must be one for
which there is strict liability. (Lussier, supra, 206 Cal.App.3d at p. 100; see Rest.2d
Torts, § 822).
There may be an exception to the scienter requirement of element 3 for at least
some harm caused by trees. There are cases holding that a property owner is strictly
liable for damage caused by tree branches and roots that encroach on neighboring
property. (See Lussier, supra, 206 Cal.App.3d at p.106, fn. 5; see also Mattos v.
Mattos (1958) 162 Cal.App.2d 41, 43 [328 P.2d 269] [absolute liability of an owner
to remove portions of his fallen trees that extend over and upon another’s land]; cf.
City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1236 [176
Cal.Rptr.3d 422] [plaintiff must prove negligent maintenance of trees that fell onto
plaintiff’s property in a windstorm].) Do not give element 3 if the court decides that
there is strict liability for damage caused by encroaching or falling trees.
There is some uncertainty as to whether lack of consent is an element (element 6)
or consent is a defense. Cases clearly list lack of consent with the elements. (See
Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352
[129 Cal.Rptr.3d 719]; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540,
1548 [87 Cal.Rptr.3d 602].) However, other cases have referred to consent as a
defense, albeit in the context of a nuisance action involving parties with interests in
the same property. (See Newhall Land & Farming Co. v. Superior Court (1993) 19
Cal.App.4th 334, 341–345, 23 Cal. Rptr. 2d 377; Mangini v. Aerojet-General Corp.
(1991) 230 Cal.App.3d 1125, 1138–1140 [281 Cal.Rptr. 827].)
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If the claim is that the defendant failed to abate a nuisance, negligence must be
proved. (City of Pasadena, supra, 228 Cal.App.4th at p. 1236.)
Element 9 must be supplemented with CACI No. 2022, Private
Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit. (See
Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 160−165
[184 Cal.Rptr.3d 26].) For instruction on control of property, see CACI No. 1002,
Extent of Control Over Premises Area, in the Premises Liability series.
Sources and Authority
• “Nuisance” Defined. Civil Code section 3479.
• Acts Done Under Express Authority of Statute. Civil Code section 3482.
• “A nuisance is considered a ‘public nuisance’ when it ‘affects at the same time
an entire community or neighborhood, or any considerable number of persons,
although the extent of the annoyance or damage inflicted upon individuals may
be unequal.’ A ‘private nuisance’ is defined to include any nuisance not covered
by the definition of a public nuisance, and also includes some public nuisances.
‘In other words, it is possible for a nuisance to be public and, from the
perspective of individuals who suffer an interference with their use and
enjoyment of land, to be private as well.’ ” (Mendez v. Rancho Valencia Resort
Partners, LLC (2016) 3 Cal.App.5th 248, 261–262 [207 Cal.Rptr.3d 532],
internal citations omitted.)
• “The elements of a public nuisance, under the circumstances of this case, are as
follows: (1) the 2007 poisoning obstructed the free use of property, so as to
interfere with the comfortable enjoyment of life or property; (2) the 2007
poisoning affected a substantial number of people; (3) an ordinary person would
be unreasonably annoyed or disturbed by the 2007 poisoning; (4) the seriousness
of the harm occasioned by the 2007 poisoning outweighed its social utility; (5)
plaintiffs did not consent to the 2007 poisoning; (6) plaintiffs suffered harm as a
result of the 2007 poisoning that was different from the type of harm suffered by
the general public; and (7) the 2007 poisoning was a substantial factor in
causing plaintiffs’ harm.[¶] The elements of a private nuisance are the same
except there is no requirement that plaintiffs prove a substantial number of
people were harmed and plaintiffs suffered harm that was different from that
suffered by the general public, but there are additional elements that plaintiffs
owned, leased, occupied or controlled real property, that the 2007 poisoning
interfered with plaintiffs’ use of their property, and that plaintiffs were harmed
thereby” (Department of Fish & Game, supra, 197 Cal.App.4th at p. 1352
[citing this instruction].)
• “In their first cause of action, plaintiffs allege the 2007 poisoning adversely
affected tourism for a substantial period of time, caused plaintiffs to suffer
serious losses, obstructed the free use of plaintiffs’ property, and interfered with
plaintiffs’ comfortable enjoyment of their property or their businesses. Strictly
speaking, this does not state a claim for either public or private nuisance. There
is no allegation that plaintiffs did not consent to the 2007 poisoning, that an
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ordinary person would have been annoyed or disturbed by the 2007 poisoning,
or that the seriousness of the harm caused by the 2007 poisoning outweighed its
public benefit.” (Department of Fish & Game, supra, 197 Cal.App.4th at p.
1352.)
• “In distinction to trespass, liability for nuisance does not require proof of
damage to the plaintiff’s property; proof of interference with the plaintiff’s use
and enjoyment of that property is sufficient.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937 [55 Cal.Rptr.2d 724, 920 P.2d 669].)
• “[T]he essence of a private nuisance is its interference with the use and
enjoyment of land. The activity in issue must ‘disturb or prevent the comfortable
enjoyment of property,’ such as smoke from an asphalt mixing plant, noise and
odors from the operation of a refreshment stand, or the noise and vibration of
machinery.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534
[90 Cal.Rptr.2d 491], internal citations omitted.)
• “A nuisance is an interference with the interest in the private use and enjoyment
of the land and does not require interference with the possession.” (McBride v.
Smith (2018) 18 Cal.App.5th 1160, 1178 [227 Cal.Rptr.3d 390].)
• “[T]o proceed on a private nuisance theory the plaintiff must prove an injury
specifically referable to the use and enjoyment of his or her land. The injury,
however, need not be different in kind from that suffered by the general public.”
(Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24
Cal.App.4th 1036, 1041 [29 Cal.Rptr.2d 664], internal citation omitted.)
• “So long as the interference is substantial and unreasonable, and such as would
be offensive or inconvenient to the normal person, virtually any disturbance of
the enjoyment of the property may amount to a nuisance; . . . .” (Mendez, supra,
3 Cal.App.5th at p. 262.)
• “The requirements of substantial damage and unreasonableness are not
inconsequential. These requirements stem from the law’s recognition that: ‘ “Life
in organized society and especially in populous communities involves an
unavoidable clash of individual interests. Practically all human activities unless
carried on in a wilderness interfere to some extent with others or involve some
risk of interference, and these interferences range from mere trifling annoyances
to serious harms. It is an obvious truth that each individual in a community must
put up with a certain amount of annoyance, inconvenience and interference and
must take a certain amount of risk in order that all may get on together. The
very existence of organized society depends upon the principle of ‘give and take,
live and let live,’ and therefore the law of torts does not attempt to impose
liability or shift the loss in every case in which one person’s conduct has some
detrimental effect on another. Liability . . . is imposed in those cases in which
the harm or risk to one is greater than he ought to be required to bear under the
circumstances, at least without compensation.” ’ ” (Mendez, supra, 3 Cal.App.5th
at p. 263, original italics.)
• “The first additional requirement for recovery of damages on a nuisance theory
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is proof that the invasion of the plaintiff’s interest in the use and enjoyment of
the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial
actual damage.’ The Restatement recognizes the same requirement as the need
for proof of ‘significant harm,’ which it variously defines as ‘harm of
importance’ and a ‘real and appreciable invasion of the plaintiff’s interests’ and
an invasion that is ‘definitely offensive, seriously annoying or intolerable.’ The
degree of harm is to be judged by an objective standard, i.e., what effect would
the invasion have on persons of normal health and sensibilities living in the
same community? ‘If normal persons in that locality would not be substantially
annoyed or disturbed by the situation, then the invasion is not a significant one,
even though the idiosyncrasies of the particular plaintiff may make it
unendurable to him.’ This is, of course, a question of fact that turns on the
circumstances of each case.” (San Diego Gas & Electric Co., supra, 13 Cal.4th
at p. 938, internal citations omitted.)
• “The second additional requirement for nuisance is superficially similar but
analytically distinct: ‘The interference with the protected interest must not only
be substantial, but it must also be unreasonable’, i.e., it must be ‘of such a
nature, duration or amount as to constitute unreasonable interference with the use
and enjoyment of the land.’ The primary test for determining whether the
invasion is unreasonable is whether the gravity of the harm outweighs the social
utility of the defendant’s conduct, taking a number of factors into account. Again
the standard is objective: the question is not whether the particular plaintiff
found the invasion unreasonable, but ‘whether reasonable persons generally,
looking at the whole situation impartially and objectively, would consider it
unreasonable.’ And again this is a question of fact: ‘Fundamentally, the
unreasonableness of intentional invasions is a problem of relative values to be
determined by the trier of fact in each case in the light of all the circumstances
of that case.’ ” (San Diego Gas & Electric Co., supra, 13 Cal.4th at pp.
938–939, internal citations omitted.)
• “Appellant first argues that the judgment is erroneous because there is no
showing that any act or conduct of his caused the damage. It is true that there is
neither showing nor finding of any negligent or wrongful act or omission of
defendant proximately causing the falling of the trees. But no such showing is
required. If the trees remained upright, with some of their branches extending
over or upon plaintiff’s land, they clearly would constitute a nuisance, which
defendant could be required to abate.” (Mattos, supra, 162 Cal.App.2d at p. 42.)
• “Although the central idea of nuisance is the unreasonable invasion of this
interest and not the particular type of conduct subjecting the actor to liability,
liability nevertheless depends on some sort of conduct that either directly and
unreasonably interferes with it or creates a condition that does so. ‘The invasion
may be intentional and unreasonable. It may be unintentional but caused by
negligent or reckless conduct; or it may result from an abnormally dangerous
activity for which there is strict liability. On any of these bases the defendant
may be liable. On the other hand, the invasion may be intentional but
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reasonable; or it may be entirely accidental and not fall within any of the
categories mentioned above. In these cases there is no liability.’ ” (Lussier,
supra, 206 Cal.App.3d at p. 100, internal citations omitted.)
• “A finding of an actionable nuisance does not require a showing that the
defendant acted unreasonably. As one treatise noted, ‘[c]onfusion has resulted
from the fact that the intentional interference with the plaintiff’s use of his
property can be unreasonable even when the defendant’s conduct is reasonable.
This is simply because a reasonable person could conclude that the plaintiff’s
loss resulting from the intentional interference ought to be allocated to the
defendant.’ ” (Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th
786, 804 [230 Cal.Rptr.3d 595], quoting Prosser & Keeton (5th ed. 1984) Torts
§ 88.)
• “We do not intend to suggest, however, that one is strictly liable for damages
that arise when a natural condition of one’s land interferes with another’s free
use and enjoyment of his property. Such a rule would, quite anomalously, equate
natural conditions with dangerous animals, ultrahazardous activities, or defective
products, for which strict liability is reserved.” (Lussier, supra, 206 Cal.App.3d
at pp. 101–102.)
• “Clearly, a claim of nuisance based on our example is easier to prove than one
based on negligent conduct, for in the former, a plaintiff need only show that the
defendant committed the acts that caused injury, whereas in the latter, a plaintiff
must establish a duty to act and prove that the defendant’s failure to act
reasonably in the face of a known danger breached that duty and caused
damages.” (Lussier, supra, 206 Cal.App.3d at p. 106.)
• “We note, however, a unique line of cases, starting with Grandona v. Lovdal
(1886) 70 Cal. 161 [11 P. 623], which holds that to the extent that the branches
and roots of trees encroach upon another’s land and cause or threaten damage,
they may constitute a nuisance. Superficially, these cases appear to impose
nuisance liability in the absence of wrongful conduct.” (Lussier, supra, 206
Cal.App.3d at p. 102, fn. 5 [but questioning validity of such a rule], internal
citations omitted.)
• “The fact that the defendants’ alleged misconduct consists of omission rather
than affirmative actions does not preclude nuisance liability.” (Birke, supra, 169
Cal.App.4th at p. 1552, internal citations omitted.)
• “A nuisance may be either a negligent or an intentional tort.” (Stoiber v.
Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal
citation omitted.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
‘ “ ‘where liability for the nuisance is predicated on the omission of the owner of
the premises to abate it, rather than on his having created it, then negligence is
said to be involved. . . .” [Citations.]’ ” (City of Pasadena, supra, 228
Cal.App.4th at p. 1236, internal citations omitted.)
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• “We acknowledge that to recover on a nuisance claim the harm the plaintiff
suffers need not be a physical injury. Thus, the absence of evidence in this case
to establish that [plaintiff] ‘s physical injuries were caused by the stray voltage
would not preclude recovery on her nuisance claim.” (Wilson, supra, 234
Cal.App.4th at p. 159, internal citations omitted.)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property. . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “It is the general rule that the unreasonable, unwarrantable or unlawful use by a
person of his own property so as to interfere with the rights of others is a
nuisance [citation]. In fact, any unwarranted activity which causes substantial
injury to the property of another or obstructs its reasonable use and enjoyment is
a nuisance which may be abated. And, even a lawful use of one’s property may
constitute a nuisance if it is part of a general scheme to annoy a neighbor and if
the main purpose of the use is to prevent the neighbor from reasonable
enjoyment of his own property [citation].” (McBride, supra, 18 Cal.App.5th at p.
1180.)
• “ ‘Occupancy goes to the holding, possessing or residing in or on something.’
‘The rights which attend occupancy may be, arguably, many.’ ‘ “Invasion of the
right of private occupancy” resembles the definition of nuisance, an
“ ‘interference with the interest in the private use and enjoyment of the land.’ ”
[Citations.] ‘The typical and familiar nuisance claim involves an activity or
condition which causes damage or other interference with the enjoyment of
adjoining or neighboring land.” ’ ” (Albert v. Truck Ins. Exchange (2018) 23
Cal.App.5th 367, 380 [232 Cal.Rptr.3d 774, internal citations omitted.)
• “An invasion of the right of private occupancy does not have to be a physical
invasion of the land; a nonphysical invasion of real property rights can interfere
with the use and enjoyment of real property.” (Albert, supra, 23 Cal.App.5th at
p. 380.)
• “A fire hazard, at least when coupled with other conditions, can be found to be a
public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• “[T]he exculpatory effect of Civil Code section 3482 has been circumscribed by
decisions of this court. . . . ‘ “A statutory sanction cannot be pleaded in
justification of acts which by the general rules of law constitute a nuisance,
unless the acts complained of are authorized by the express terms of the statute
under which the justification is made, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can be fairly stated
that the Legislature contemplated the doing of the very act which occasions the
injury.’ ” ” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 [142
Cal.Rptr. 429, 572 P.2d 43], internal citation omitted.)
• “[W]here, as here, an owner of property seeks damages for creation of a
nuisance by a prior lessee, the lessee has a defense that his use of the property
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was lawful and was authorized by the lease; i.e., his use of the property was
undertaken with the consent of the owner.” (Mangini, supra, 230 Cal.App.3d at
p. 1138, original italics.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 174
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.05
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.13
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 (Matthew Bender)
California Civil Practice: Torts §§ 17:1, 17:2, 17:4 (Thomson Reuters)
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2022. Private Nuisance—Balancing-Test Factors—Seriousness of
Harm and Public Benefit
In determining whether the seriousness of the harm to [name of plaintiff]
outweighs the public benefit of [name of defendant]’s conduct, you should
consider a number of factors.
To determine the seriousness of the harm [name of plaintiff] suffered, you
should consider the following:
a. The extent of the harm, meaning how much the condition [name
of defendant] caused interfered with [name of plaintiff]’s use or
enjoyment of [his/her/nonbinary pronoun] property, and how long
that interference lasted.
b. The character of the harm, that is, whether the harm involved a
loss from the destruction or impairment of physical things that
[name of plaintiff] was using, or personal discomfort or annoyance.
c. The value that society places on the type of use or enjoyment
invaded. The greater the social value of the particular type of use
or enjoyment of land that is invaded, the greater is the
seriousness of the harm from the invasion.
d. The suitability of the type of use or enjoyment invaded to the
nature of the locality. The nature of a locality is based on the
primary kind of activity at that location, such as residential,
industrial, or other activity.
e. The extent of the burden (such as expense and inconvenience)
placed on [name of plaintiff] to avoid the harm.
To determine the public benefit of [name of defendant]’s conduct, you
should consider:
a. The value that society places on the primary purpose of the
conduct that caused the interference. The primary purpose of the
conduct means [name of defendant]’s main objective for engaging
in the conduct. How much social value a particular purpose has
depends on how much its achievement generally advances or
protects the public good.
b. The suitability of the conduct that caused the interference to the
nature of the locality. The suitability of the conduct depends upon
its compatibility to the primary activities carried on in the
locality.
c. The practicability or impracticality of preventing or avoiding the
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invasion.
New December 2015
Directions for Use
This instruction must be given with CACI No. 2021, Private Nuisance—Essential
Factual Elements. (See Wilson v. Southern California Edison Co. (2015) 234
Cal.App.4th 123, 160−165 [184 Cal.Rptr.3d 26].) CACI No. 2021 has been found to
be inadequate to express the requirement that the plaintiff must suffer serious harm
without this additional guidance to the jury on how to determine whether the
seriousness of the plaintiff’s harm outweighs the public benefit of the defendant’s
conduct (CACI No. 2021, element 8). (See Id. at pp. 162−163.)
Sources and Authority
• “ ‘The interference with the protected interest must not only be substantial, but it
must also be unreasonable’, i.e., it must be ‘of such a nature, duration or amount
as to constitute unreasonable interference with the use and enjoyment of the
land.’ The primary test for determining whether the invasion is unreasonable is
whether the gravity of the harm outweighs the social utility of the defendant’s
conduct, taking a number of factors into account. Again the standard is
objective: the question is not whether the particular plaintiff found the invasion
unreasonable, but ‘whether reasonable persons generally, looking at the whole
situation impartially and objectively, would consider it unreasonable.’ And again
this is a question of fact: ‘Fundamentally, the unreasonableness of intentional
invasions is a problem of relative values to be determined by the trier of fact in
each case in the light of all the circumstances of that case.’ ” (San Diego Gas &
Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938–939 [55 Cal.Rptr.2d
724, 920 P.2d 669], internal citations omitted.)
• “Had the jury been instructed on the proper factors to consider when weighing
the gravity of the harm against the social utility of [defendant]’s conduct and
found [defendant] liable, the statement of these elements would be sufficient
because in finding in favor of [plaintiff] the jury necessarily would have
concluded that the harm was substantial. Without such instruction, it is not.”
(Wilson, supra, 234 Cal.App.4th at p. 163.)
• Restatement Second of Torts, section 827 provides:
In determining the gravity of the harm from an intentional invasion of another’s
interest in the use and enjoyment of land, the following factors are important:
(a) the extent of the harm involved;
(b) the character of the harm involved;
(c) the social value that the law attaches to the type of use or
enjoyment invaded;
(d) the suitability of the particular use or enjoyment invaded to the
character of the locality; and
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(e) the burden on the person harmed of avoiding the harm.
• Restatement Second of Torts, section 828 provides:
In determining the utility of conduct that causes an intentional invasion of
another’s interest in the use and enjoyment of land, the following factors are
important:
(a) the social value that the law attaches to the primary purpose of
the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 190
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.05 (Matthew
Bender)
9 California Real Estate Law and Practice, Ch. 320, The Law of Nuisance, § 320.15
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.20
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.47 (Matthew Bender)
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2023. Failure to Abate Artificial Condition on Land Creating
Nuisance
[Name of plaintiff] claims that [name of defendant] unreasonably failed to
put an end to an artificial condition on [name of defendant]’s land that
was a [public/private] nuisance. To establish this claim, in addition to
proving that the condition created a nuisance, [name of plaintiff] must
also prove all of the following:
1. That [name of defendant] was in possession of the land where the
artificial condition existed;
2. That [name of defendant] knew or should have known of the
condition and that it created a nuisance or an unreasonable risk
of nuisance;
3. That [name of defendant] knew or should have known that [[name
of plaintiff]/the affected members of the public] did not consent to
the condition; and
4. That after a reasonable opportunity, [name of defendant] failed to
take reasonable steps to put an end to the condition or to protect
[[name of plaintiff]/the public] from the nuisance.
New November 2018
Directions for Use
This instruction is based on the Restatement Second of Torts, section 839 (see Leslie
Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605,
618–622 [200 Cal.Rptr. 575]), which applies to both public and private nuisances.
(Rest. 2d Torts, § 839, comment (a).) For a private nuisance, select the plaintiff in
elements 3 and 4.
Give this instruction with either CACI No. 2020, Public Nuisance—Essential
Factual Elements, or CACI No. 2021, Private Nuisance—Essential Factual
Elements. For public nuisance, modify element 1 of CACI No. 2020 to replace
“created a condition” with “allowed a condition to exist.” For private nuisance, this
instruction replaces element 3 of CACI No. 2021.
Sources and Authority
• “Under the common law, liability for a public nuisance may result from the
failure to act as well as from affirmative conduct. Thus, for example, section 839
of the Restatement Second of Torts declares that ‘A possessor of land is subject
to liability for a nuisance caused while he is in possession by an abatable
artificial condition on the land [such as the placement of fill], if the nuisance is
otherwise actionable [e.g., prohibited by statute], and [para. ] (a) the possessor
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knows or should know of the condition and the nuisance or unreasonable risk of
nuisance involved, and [para. ] (b) he knows or should know that it exists
without the consent of those affected by it, and [para. ] (c) he has failed after a
reasonable opportunity to take reasonable steps to abate the condition or to
protect the affected persons against it.’” (Leslie Salt Co., supra, 153 Cal.App.3d
at pp. 619–620.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 160
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 1045
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1230, 1300
2024–2029. Reserved for Future Use
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2030. Affirmative Defense—Statute of Limitations—Trespass or
Private Nuisance
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [name of plaintiff]’s claimed harm occurred
before [insert date three years before date of filing].
[If [name of defendant] proves that [name of plaintiff]’s claimed harm
occurred before [insert date three years before date of filing], the lawsuit
was still filed on time if [name of plaintiff] proves that the
[trespass/nuisance] is continuous. A [trespass/nuisance] is continuous if it
can be discontinued. Among the factors that indicate that the [trespass/
nuisance] can be discontinued are the following:
(a) That the [trespass/nuisance] is currently continuing;
(b) That the impact of the condition will vary over time;
(c) That the [trespass/nuisance] can be discontinued at any time, in a
reasonable manner, and for reasonable cost, considering the
benefits and detriments if it is discontinued.
[You must consider the continuous nature of the damage to the property
that a nuisance causes, not the continuous nature of the acts causing the
nuisance to occur.]]
New April 2008
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
filed within the applicable three-year period for injury to real property. (See Code
Civ. Proc., § 338(b).) This instruction may be used for a permanent trespass other
than an action for damages for wrongful damage to timber, to which a five-year
statute applies. (See Civ. Code, § 3346(c).) It may also be used for a permanent
private nuisance. There is no limitation period for a public nuisance. (See Civ. Code,
§ 3490.) There is also essentially no statute of limitation for a continuing trespass or
continuing private nuisance, but damages for future harm are not recoverable. (See
Lyles v. State of California (2007) 153 Cal.App.4th 281, 291 [62 Cal.Rptr.3d 696]
[nuisance]; Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153
Cal.App.4th 583, 592 [63 Cal.Rptr.3d 165] [trespass].)
Include the optional second paragraph if there is an issue of fact as to whether the
trespass or nuisance is permanent or continuous. If applicable, include the last
sentence in the case of a nuisance.
If the plaintiff alleges that the delayed-discovery rule applies to avoid the limitation
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defense, CACI No. 455, Statute of Limitations—Delayed Discovery, may be adapted
for use.
See also CACI No. 3903F, Damage to Real Property (Economic Damage), and
CACI No. 3903G, Loss of Use of Real Property (Economic Damage).
Sources and Authority
• Three-Year Statute of Limitations. Code of Civil Procedure section 338.
• No Lapse of Time Can Legalize Public Nuisance. Civil Code section 3490.
• “[A] trespass may be continuing or permanent. A permanent trespass is an
intrusion on property under circumstances that indicate an intention that the
trespass shall be permanent. In these cases, the law considers the wrong to be
completed at the time of entry and allows recovery of damages for past, present,
and future harm in a single action, generally the diminution in the property’s
value. The cause of action accrues and the statute of limitations begins to run at
the time of entry. . . . [¶] In contrast, a continuing trespass is an intrusion under
circumstances that indicate the trespass may be discontinued or abated. In these
circumstances, damages are assessed for present and past damages only;
prospective damages are not awarded because the trespass may be discontinued
or abated at some time, ending the harm. . . . Continuing trespasses are
essentially a series of successive injuries, and the statute of limitations begins
anew with each injury. In order to recover for all harm inflicted by a continuing
trespass, the plaintiff is required to bring periodic successive actions.” (Starrh &
Starrh Cotton Growers, supra, 153 Cal.App.4th at p. 592.)
• “Two distinct classifications have emerged in nuisance law which determine the
remedies available to injured parties and the applicable statute of limitations. On
the one hand, permanent nuisances are of a type where ‘by one act a permanent
injury is done, [and] damages are assessed once for all.’ . . . In such cases,
plaintiffs ordinarily are required to bring one action for all past, present and
future damage within three years after the permanent nuisance is erected. The
statutory period is shorter for claims against public entities. (Gov. Code,
§ 911.2.) Damages are not dependent upon any subsequent use of the property
but are complete when the nuisance comes into existence. [¶] On the other hand,
if a nuisance is a use which may be discontinued at any time, it is considered
continuing in character and persons harmed by it may bring successive actions
for damages until the nuisance is abated. Recovery is limited, however, to actual
injury suffered prior to commencement of each action. Prospective damages are
unavailable.” (Baker v. Burbank-Glendale-Pasadena Airport Auth. (1985) 39
Cal.3d 862, 868–869 [218 Cal.Rptr. 293, 705 P.2d 866], internal citations and
footnotes omitted.)
• “Historically, the application of the statute of limitations for trespass has been
the same as for nuisance and has depended on whether the trespass has been
continuing or permanent.” (Mangini v. Aerojet-General Corp. (1991) 230
Cal.App.3d 1125, 1148 [281 Cal.Rptr. 827].)
• “[G]enerally the principles governing the permanent or continuing nature of a
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trespass or nuisance are the same and the cases discuss the two causes of action
without distinction.” (Starrh & Starrh Cotton Growers, supra, 153 Cal.App.4th
at p. 594.)
• “Generally, whether a trespass is continuing or permanent is a question of fact
properly submitted to the jury. A trial court may remove the issue of fact from
the jury by directed verdict only if there is no evidence tending to prove the case
of the party opposing the motion.” (Starrh & Starrh Cotton Growers, supra, 153
Cal.App.4th at p. 597, internal citations omitted.)
• “[T]he key question [in determining whether a trespass is continuous or
permanent] is whether the trespass or nuisance can be discontinued or abated
and there are a number of tests used to answer this question. A respected legal
treatise summarizes the various tests as follows: ‘[W]hether (1) the offense
activity is currently continuing, which indicates that the nuisance is continuing,
(2) the impact of the condition will vary over time, indicating a continuing
nuisance, or (3) the nuisance can be abated at any time, in a reasonable manner
and for reasonable cost, and is feasible by comparison of the benefits and
detriments to be gained by abatement.’ ” (Starrh & Starrh Cotton Growers,
supra, 153 Cal.App.4th at pp. 593–594, citing 8 Miller & Starr, Cal. Real Estate
(3d ed. 2000) § 22.39, pp. 148–149.)
• “The jury’s conclusion that it was unknown whether the soil contamination could
be abated by reasonable means at a reasonable cost means that plaintiff had
failed to prove her claims of continuing nuisance and trespass.” (McCoy v.
Gustafson (2009) 180 Cal.App.4th 56, 86 [103 Cal.Rptr.3d 37].)
• “[T]he ‘continuing’ nature of a nuisance ‘refers to the continuing damage caused
by the offensive condition, not to the acts causing the offensive condition to
occur.’ ” (Lyles, supra, 153 Cal.App.4th at p. 291, internal citation omitted.)
• “[A] cause of action for damage to real property accrues when the defendant’s
act causes ‘immediate and permanent injury’ to the property or, to put it another
way, when there is ‘[a]ctual and appreciable harm’ to the property.” (Siegel v.
Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 1005 [13 Cal.Rptr.3d 462],
original italics, internal citations omitted.)
• “Property damage cases . . . are different from medical malpractice cases in the
sense that, when property is damaged, there is ordinarily some wrongful cause.
Thus, when one’s property is damaged, one should reasonably suspect that
someone has done something wrong to him and, accordingly, be charged with
knowledge of the information that would have been revealed by an investigation.
That particular property damage could result from natural causes does not mean
that the same property damage could result only from natural causes.” (Lyles,
supra, 153 Cal.App.4th at pp. 287–288.)
• “The traditional rule in tort cases is that the statute of limitations begins to run
upon the occurrence of the last fact essential to the cause of action. Although
sometimes harsh, the fact that plaintiff is neither aware of his cause of action nor
of the identity of a wrongdoer will not toll the statute. [¶] The harshness of this
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rule has been ameliorated in some cases where it is manifestly unjust to deprive
plaintiffs of a cause of action before they are aware that they have been injured.
This modified rule has been applied to latent defects in real property and
improvements. In the case of such latent defects the statute of limitations begins
to run only when ‘noticeable damage occurs.’ ” (Leaf v. City of San Mateo
(1980) 104 Cal.App.3d 398, 406–407 [163 Cal.Rptr. 711], internal citations
omitted, disapproved on another ground in Trope v. Katz (1995) 11 Cal.4th 274,
292 [45 Cal.Rptr.2d 241, 902 P.2d 259], original italics.)
Secondary Sources
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.09[5] (Matthew
Bender)
Brown et al., California Practice Guide: Civil Procedure Before Trial, Ch. 6-C,
Pleadings ¶¶ 6:462–6:462.2 (The Rutter Group)
2 California Real Property Remedies and Damages, Ch. 11, Remedies for Nuisance
and Trespass (Cont.Ed.Bar 2d ed.) §§ 11.38–11.40
1 California Forms of Pleading and Practice, Ch. 11, Adjoining Landowners, § 11.24
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.240–225.245
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.44 (Matthew Bender)
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2031. Damages for Annoyance and Discomfort—Trespass or
Nuisance
If you decide that [name of plaintiff] has proved that [name of defendant]
committed a [trespass/nuisance], [name of plaintiff] may recover damages
that would reasonably compensate [him/her/nonbinary pronoun] for the
annoyance and discomfort, including emotional distress or mental
anguish, caused by the injury to [his/her/nonbinary pronoun] peaceful
enjoyment of the property that [he/she/nonbinary pronoun] occupied.
New December 2010; Revised November 2017
Directions for Use
Give this instruction if the plaintiff claims damages for annoyance and discomfort
resulting from a trespass or nuisance, including emotional distress or mental anguish
proximately caused by the trespass or nuisance. (Hensley v. San Diego Gas &
Electric Co. (2017) 7 Cal.App.5th 1337, 1348–1349 [213 Cal.Rptr.3d 803]; but see
Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456 [102 Cal.Rptr.3d
32] [damages for annoyance and discomfort are distinct from general damages for
mental or emotional distress]; see also Vieira Enterprises, Inc. v. McCoy (2017) 8
Cal.App.5th 1057, 1094 [214 Cal.Rptr.3d 193 [workability of distinction between
damages for annoyance and discomfort and general damages “may be questioned”].)
There may also be a split of authority as to whether the plaintiff must have been in
immediate possession of the property in order to recover for annoyance and
discomfort. (Compare Hensley, supra, 7 Cal.App.5th at pp. 1352–1355 [no
limitation] with Kelly, supra, 179 Cal.App.4th at p. 458 [plaintiff must be in
immediate possession of the property]; see also Vieira Enterprises, Inc., supra, 8
Cal.App.5th at p. 1094 [not necessary that the plaintiff be present at the moment of
a tortious invasion of the property].)
Sources and Authority
• “Once a cause of action for trespass or nuisance is established, an occupant of
land may recover damages for annoyance and discomfort that would naturally
ensue therefrom.” (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265,
272 [288 P.2d 507].)
• “[T]he restrictions on emotional distress damages involved in breach of contract
or negligence cases do not apply when a plaintiff’s emotional distress is the
result of the defendant’s commission of a tort arising from an invasion of a
property interest.” (Hensley, supra, 7 Cal.App.5th at pp. 1356–1357.)
• “[O]nce a cause of action for trespass or nuisance is established, a landowner
may recover for annoyance and discomfort, including emotional distress or
mental anguish, proximately caused by the trespass or nuisance. . . . [¶] This is
so even where the trespass or nuisance involves solely property damage.”
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(Hensley, supra, 7 Cal.App.5th at pp. 1348–1349, original italics.)
• “[Plaintiff]’s fear, stress and anxiety suffered as a direct and proximate result of
the fire and its attendant damage, loss of use and enjoyment are compensable as
damages for annoyance and discomfort.” (Hensley, supra, 7 Cal.App.5th at p.
1351.)
• “We reject [defendant]’s contention that in order for emotional distress damages
to ‘naturally ensue’ from a trespass or nuisance, the owner or occupant must be
personally or physically present on the invaded property during the trespass or
nuisance.” (Hensley, supra, 7 Cal.App.5th at p. 1352.)
• “We do not question that a nonresident property owner may suffer mental or
emotional distress from damage to his or her property. But annoyance and
discomfort damages are distinct from general damages for mental and emotional
distress. Annoyance and discomfort damages are intended to compensate a
plaintiff for the loss of his or her peaceful occupation and enjoyment of the
property. . . . ‘We recognize that annoyance and discomfort by their very nature
include a mental or emotional component, and that some dictionary definitions of
these terms include the concept of distress. Nevertheless, the “annoyance and
discomfort” for which damages may be recovered on nuisance and trespass
claims generally refers to distress arising out of physical discomfort, irritation, or
inconvenience caused by odors, pests, noise, and the like. Our cases have
permitted recovery for annoyance and discomfort damages on nuisance and
trespass claims while at the same time precluding recovery for “pure” emotional
distress.’ ” (Kelly, supra, 179 Cal.App.4th at p. 456, internal citations omitted.)
• “California cases upholding an award of annoyance and discomfort damages
have involved a plaintiff who was in immediate possession of the property as a
resident or commercial tenant. We are aware of no California case upholding an
award of annoyance and discomfort damages to a plaintiff who was not
personally in immediate possession of the property.” (Kelly, supra, 179
Cal.App.4th at p. 458, internal citations omitted.)
• “Kelly stands only for the proposition that legal occupancy is required to recover
damages for annoyance and discomfort in a trespass case, and that standard
requires immediate and personal possession, as a resident or commercial tenant
would have. Here, there is no dispute the [plaintiffs] both owned and resided on
their property, and they meet the legal standard of occupancy necessary to claim
damages for annoyance, discomfort, inconvenience or mental anguish
proximately caused by the trespass, as the jury was instructed without
controversy in Kelly. Kelly does not hold that an occupant must be personally or
physically present at the time of the harmful invasion to deem emotional distress
damages “naturally ensuing” therefrom.” (Hensley, supra, 7 Cal.App.5th at pp.
1354–1355, original italics, internal citation omitted.)
• “[I]t is not necessary that the plaintiff be present at the moment of a tortious
invasion of the property. But it is necessary that the annoyance and discomfort
arise from and relate to some personal effect of the interference with use and
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enjoyment which lies at the heart of the tort of trespass.” (Vieira Enterprises,
Inc., supra, 8 Cal.App.5th at p. 1094, original italics.)
• “[A] plaintiff may recover damages for annoyance and discomfort proximately
caused by tortious injuries to trees on her property if she was in immediate and
personal possession of the property at the time of the trespass.” (Fulle v. Kanani
(2017) 7 Cal.App.5th 1305, 1313 [212 Cal.Rptr.3d 920], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1915
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.23 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.21 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.145 (Matthew
Bender)
2032–2099. Reserved for Future Use
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VF-2000. Trespass
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] intentionally [enter/ [or] cause [another
person/[insert name of thing]] to enter] [name of plaintiff]’s
property?]
2. [or]
2. [Did [name of defendant], although not intending to do so,
[recklessly/ [or] negligently] [enter/ [or] cause [another person/
[insert name of thing]] to enter] [name of plaintiff]’s property?]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] enter the property without [name of
plaintiff]’s permission?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s [entry/conduct] a substantial factor in
causing [actual] harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
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[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
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3920, Damages on Multiple Legal Theories.
If there is an issue regarding whether the defendant exceeded the scope of plaintiff’s
consent, question 3 can be modified, as in element 3 in CACI No. 2000.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2001. Trespass—Affirmative Defense—Necessity
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] intentionally [enter/ [or] cause [another
person/[insert name of thing]] to enter] [name of plaintiff]’s
property?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] enter the property without [name of
plaintiff]’s permission?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was it necessary, or did it reasonably appear to [name of
defendant] to be necessary, to enter the land to prevent serious
harm to a person or property?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s [entry/conduct] a substantial factor in
causing [actual] harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, October 2008, December
2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements, and CACI No. 2005, Affırmative Defense—Necessity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of plaintiff’s
consent, question 3 can be modified, as in element 3 in CACI No. 2000.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2002. Trespass—Extrahazardous Activities
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] engaged in [insert extrahazardous
activity]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [insert extrahazardous activity] cause [insert thing] to enter
[name of plaintiff]’s property?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] give permission for the entry?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
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[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2001, Trespass—Extrahazardous Activities.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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If there is an issue regarding whether the defendant exceeded the scope of plaintiff’s
consent, question 4 can be modified.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2003. Trespass to Timber (Civ. Code, § 3346)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] intentionally enter [name of plaintiff]’s
property and [cut down or damage trees/take timber] located on
the property?]
2. [or]
2. [Did [name of defendant], although not intending to do so,
[recklessly/ [or] negligently] enter [name of plaintiff]’s property
and damage trees located on the property?]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] give permission to [cut down or damage the
trees/take timber]?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
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[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements. The amount of actual damages found by the jury is to be
doubled. (See Civ. Code, § 3346(a).) The court can do the computation based on the
jury’s award.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of plaintiff’s
consent, question 3 can be modified, as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
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especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ.
Code, § 3346; Code Civ. Proc., § 733)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] intentionally enter [name of plaintiff]’s
property and [cut down or damage trees/take timber] located on
the property?]
2. [or]
2. [Did [name of defendant], although not intending to do so,
recklessly enter [name of plaintiff]’s property and damage trees
located on the property?]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] give permission to [cut down or damage the
trees/take timber]?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] act willfully and maliciously?
5. Yes No
5. Answer question 6.
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6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements, and CACI No. 2003, Damage to Timber—Willful and Malicious
Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
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If there is an issue regarding whether the defendant exceeded the scope of the
plaintiff’s consent, question 3 can be modified as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2005. Public Nuisance
We answer the questions submitted to us as follows:
1. Did [name of defendant], by acting or failing to act, create a
condition that was harmful to health?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the condition affect a substantial number of people at the
same time?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Would an ordinary person have been reasonably annoyed or
disturbed by the condition?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did the seriousness of the harm outweigh the social utility of
[name of defendant]’s conduct?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consent to [name of defendant]’s conduct?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of plaintiff] suffer harm that was different from the
type of harm suffered by the general public?
6. Yes No
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6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
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verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2010,
December 2016
Directions for Use
This form is based on CACI No. 2020, Public Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations may be substituted in question 1 as in element 1 of CACI
No. 2020.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Depending on the facts of the case, question 1 can be modified, as in element 1 of
CACI No. 2020.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2006. Private Nuisance
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [own/lease/occupy/control] the property?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant], by acting or failing to act, create a
condition or permit a condition to exist that was harmful to
health?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did this condition substantially interfere with [name of plaintiff]’s
use or enjoyment of [his/her/nonbinary pronoun] land?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would an ordinary person have reasonably been annoyed or
disturbed by [name of defendant]’s conduct?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consent to [name of defendant]’s conduct?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
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6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did the seriousness of the harm outweigh the public benefit of
[name of defendant]’s conduct?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future eco- $ ]
nomic loss
Total Future Economic Damages: $
]
[c. Past noneconomic loss, including [physical pain/mental
suffering:]
$ ]
[d. Future noneconomic loss, including [physical pain/mental
suffering:]
$ ]
TOTAL $
Signed:
Presiding Juror
Dated:
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After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2010,
December 2011, December 2016, May 2017
Directions for Use
This form is based on CACI No. 2021, Private Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Depending on the facts of the case, question 2 may be replaced with one of the
other options from element 2 of CACI No. 2021.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2007–VF-2099. Reserved for Future Use
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CONVERSION
2100. Conversion—Essential Factual Elements
2101. Trespass to Chattels—Essential Factual Elements
2102. Presumed Measure of Damages for Conversion (Civ. Code, § 3336)
2103–2199. Reserved for Future Use
VF-2100. Conversion
VF-2101–VF-2199. Reserved for Future Use
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2100. Conversion—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully exercised
control over [his/her/nonbinary pronoun/its] personal property. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/possessed/had a right to possess]
[a/an] [insert item of personal property];
2. That [name of defendant] substantially interfered with [name of
plaintiff]’s property by knowingly or intentionally [insert one or
more of the following:]
2. [taking possession of the [insert item of personal property];] [or]
2. [preventing [name of plaintiff] from having access to the [insert
item of personal property];] [or]
2. [destroying the [insert item of personal property];] [or]
2. [refusing to return the [insert item of personal property] after
[name of plaintiff] demanded its return.]
3. That [name of plaintiff] did not consent;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2009, December 2010, May 2017
Directions for Use
The last option for element 2 may be used if the defendant’s original possession of
the property was not tortious. (See Atwood v. S. Cal. Ice Co. (1923) 63 Cal.App.
343, 345 [218 P. 283], disapproved on other grounds in Wilson v. Crown Transfer &
Storage Co. (1927) 201 Cal. 701 [258 P. 596].)
Sources and Authority
• “Conversion is the wrongful exercise of dominion over the property of another.
The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61
Cal.4th 1225, 1240 [191 Cal.Rptr.3d 536, 354 P.3d 334].)
• “It is not necessary that there be a manual taking of the property; it is only
necessary to show an assumption of control or ownership over the property, or
that the alleged converter has applied the property to his own use.” . . .’ ”
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(Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507 [85
Cal.Rptr.3d 268].)
• “[A]ny act of dominion wrongfully exerted over the personal property of another
inconsistent with the owner’s rights thereto constitutes conversion.” (Plummer v.
Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 50 [108 Cal.Rptr.3d 455].)
• “To prove a cause of action for conversion, the plaintiff must show the defendant
acted intentionally to wrongfully dispose of the property of another.” (Duke v.
Superior Court (2017) 18 Cal.App.5th 490, 508 [226 Cal.Rptr.3d 807].)
• “[Conversion] must be knowingly or intentionally done, but a wrongful intent is
not necessary. Because the act must be knowingly done, ‘neither negligence,
active or passive, nor a breach of contract, even though it result in injury to, or
loss of, specific property, constitutes a conversion.’ It follows therefore that
mistake, good faith, and due care are ordinarily immaterial, and cannot be set up
as defenses in an action for conversion.” (Taylor v. Forte Hotels Int’l (1991) 235
Cal.App.3d 1119, 1124 [1 Cal.Rptr.2d 189], original italics, internal citations
omitted.)
• “[C]onversion is a strict liability tort. It does not require bad faith, knowledge, or
even negligence; it requires only that the defendant have intentionally done the
act depriving the plaintiff of his or her rightful possession.” (Voris v. Lampert
(2019) 7 Cal.5th 1141, 1158 [250 Cal.Rptr.3d 779, 446 P.3d 284].)
• “ ‘ “Conversion is a strict liability tort,” ’ so the Bank cannot defeat the claim on
the grounds that it accepted a forged signature in good faith. Financial
institutions can be liable to their depositors for transferring money out of their
accounts on forged instruments.” (Fong v. East West Bank (2018) 19 Cal.App.5th
224, 235 [227 Cal.Rptr.3d 838], internal citation omitted.)
• “The rule of strict liability applies equally to purchasers of converted goods, or
more generally to purchasers from sellers who lack the power to transfer
ownership of the goods sold. That is, there is no general exception for bona fide
purchasers.” (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177,
1181 [180 Cal.Rptr.3d 610], internal citations omitted.)
• “There are recognized exceptions to the general rule of strict liability. Some
exceptions are based on circumstances in which ‘the person transferring
possession may have the legal power to convey to a bona fide transferee a good
title,’ as, for example, when ‘a principal has clothed an agent in apparent
authority exceeding that which was intended.’ Another exception concerns goods
obtained by means of a fraudulent misrepresentation. If the party who committed
the fraud then sells the goods to ‘a bona fide purchaser’ who ‘takes for value
and without notice of the fraud, then such purchaser gets good title to the chattel
and may not be held for conversion (though the original converter may be).’ ”
(Regent Alliance Ltd., supra, 231 Cal.App.4th at p. 1183, internal citation
omitted.)
• “[I]t is generally acknowledged that conversion is a tort that may be committed
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only with relation to personal property and not real property.” (Munger v. Moore
(1970) 11 Cal.App.3d 1, 7 [89 Cal.Rptr. 323], disagreeing with Katz v. Enos
(1945) 68 Cal.App.2d 266, 269 [156 P.2d 461].)
• “The first element of that cause of action is his ownership or right to possession
of the property at the time of the conversion. Once it is determined that
[plaintiff] has a right to reinstate the contract, he has a right to possession of the
vehicle and standing to bring conversion. Unjustified refusal to turn over
possession on demand constitutes conversion even where possession by the
withholder was originally obtained lawfully and of course so does an
unauthorized sale.” (Cerra v. Blackstone (1985) 172 Cal.App.3d 604, 609 [218
Cal.Rptr. 15], internal citations omitted.)
• “ ‘To establish a conversion, plaintiff must establish an actual interference with
his ownership or right of possession. . . . Where plaintiff neither has title to the
property alleged to have been converted, nor possession thereof, he cannot
maintain an action for conversion.’ ” (Moore v. Regents of the Univ. of Cal.
(1990) 51 Cal.3d 120, 136 [271 Cal.Rptr. 146, 793 P.2d 479], internal citations
omitted.)
• “In a conversion action the plaintiff need show only that he was entitled to
possession at the time of conversion; the fact that plaintiff regained possession of
the converted property does not prevent him from suing for damages for the
conversion.” (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d
737, 748 [282 Cal.Rptr. 620], internal citation omitted.)
• “Neither legal title nor absolute ownership of the property is necessary. . . . A
party need only allege it is ‘entitled to immediate possession at the time of
conversion. . . .’ . . . However, a mere contractual right of payment, without
more, will not suffice.” (Plummer, supra, 184 Cal.App.4th at p. 45, internal
citation omitted.)
• “[A] claim for unpaid wages resembles other actions for a particular amount of
money owed in exchange for contractual performance—a type of claim that has
long been understood to sound in contract, rather than as the tort of conversion.”
(Voris, supra, 7 Cal.5th at p. 1156.)
• “The existence of a lien . . . can establish the immediate right to possess needed
for conversion. ‘One who holds property by virtue of a lien upon it may
maintain an action for conversion if the property was wrongfully disposed of by
the owner and without authority . . . .’ Thus, attorneys may maintain conversion
actions against those who wrongfully withhold or disburse funds subject to their
attorney’s liens.” (Plummer, supra, 184 Cal.App.4th at p. 45, internal citation
omitted.)
• “Where the conduct complained of does not amount to a substantial interference
with possession or the right thereto, but consists of intermeddling with or use of
or damages to the personal property, the owner has a cause of action for trespass
or case, and may recover only the actual damages suffered by reason of the
impairment of the property or the loss of its use. As [plaintiff] was a cotenant
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and had the right of possession of the realty, which included the right to keep his
personal property thereon, [defendant]’s act of placing the goods in storage,
although not constituting the assertion of ownership and a substantial
interference with possession to the extent of a conversion, amounted to an
intermeddling. Therefore, [plaintiff] is entitled to actual damages in an amount
sufficient to compensate him for any impairment of the property or loss of its
use.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551–552 [176 P.2d 1], internal
citation omitted.)
• “[T]he law is well settled that there can be no conversion where an owner either
expressly or impliedly assents to or ratifies the taking, use or disposition of his
property.” (Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d 468, 474
[139 P.2d 80], internal citations omitted.)
• “As to intentional invasions of the plaintiff’s interests, his consent negatives the
wrongful element of the defendant’s act, and prevents the existence of a tort.
‘The absence of lawful consent,’ said Mr. Justice Holmes, ‘is part of the
definition of an assault.’ The same is true of false imprisonment, conversion, and
trespass.” (Tavernier v. Maes (1966) 242 Cal.App.2d 532, 552 [51 Cal.Rptr.
575], internal citations omitted.)
• “If a defendant is authorized to make a specific use of a plaintiff’s property, use
in excess of that authorized may subject the defendant to liability for conversion,
if such use seriously violates another’s right to control the use of the property.”
(Duke, supra, 18 Cal.App.5th at p. 506.)
• “[D]amages for emotional distress growing out of a defendant’s conversion of
personal property are recoverable.” (Hensley v. San Diego Gas & Electric Co.
(2017) 7 Cal.App.5th.1337, 1358 [213 Cal.Rptr.3d 803].)
• “ ‘Money cannot be the subject of a cause of action for conversion unless there
is a specific, identifiable sum involved, such as where an agent accepts a sum of
money to be paid to another and fails to make the payment.’ A ‘generalized
claim for money [is] not actionable as conversion.’ ” (PCO, Inc. v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384,
395 [58 Cal.Rptr.3d 516], internal citations omitted.)
• “Generally, conversion has been held to apply to the taking of intangible
property rights when ‘represented by documents, such as bonds, notes, bills of
exchange, stock certificates, and warehouse receipts.’ As one authority has
written, ‘courts have permitted a recovery for conversion of assets reflected in
such documents as accounts showing amounts owed, life insurance policies, and
other evidentiary documents. These cases are far removed from the paradigm
case of physical conversion; they are essentially financial or economic tort cases,
not physical interference cases.’ ” (Welco Electronics, Inc. v. Mora (2014) 223
Cal.App.4th 202, 209 [166 Cal.Rptr.3d 877], internal citation omitted.)
• “[I]t is ‘well settled in California that shares of corporate stock are subject to an
action in conversion’ and ‘it is not necessary that possession of the certificate
evidencing title be disturbed.’ Instead, it is sufficient that there is interference
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with the owner’s ‘free and unhampered right to dispose of property without
limitations imposed by strangers to the title.’ ” (Applied Medical Corp. v.
Thomas (2017) 10 Cal.App.5th 927, 938 [217 Cal.Rptr.3d 169].)
• “[T]here is no special rule preventing a depositor from pursuing a conversion
action against the bank that holds his or her money. . . . ‘The law applicable to
conversion of personal property applies to instruments,’ which includes
certificates of deposit.” (Fong, supra, 19 Cal.App.5th at pp. 232–233.)
• “Credit card, debit card, or PayPal information may be the subject of a
conversion.” (Welco Electronics, Inc., supra, 223 Cal.App.4th at p. 212, footnote
omitted.)
• “One who buys property in good faith from a party lacking title and the right to
sell may be liable for conversion. The remedies for conversion include specific
recovery of the property, damages, and a quieting of title.” (State Farm Mut.
Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076,
1081–1082 [62 Cal.Rptr.2d 178], internal citations omitted.)
• “In order to establish a conversion, the plaintiff ‘must show an intention or
purpose to convert the goods and to exercise ownership over them, or to prevent
the owner from taking possession of his property.’ Thus, a necessary element of
the tort is an intent to exercise ownership over property which belongs to
another. For this reason, conversion is considered an intentional tort.” (Collin v.
American Empire Insurance Co. (1994) 21 Cal.App.4th 787, 812 [26 Cal.Rptr.2d
391], internal citations omitted.)
• “A conversion can occur when a willful failure to return property deprives the
owner of possession.” (Fearon v. Department of Corrections (1984) 162
Cal.App.3d 1254, 1257 [209 Cal.Rptr. 309], internal citation omitted.)
• “A demand for return of the property is not a condition precedent to institution
of the action when possession was originally acquired by a tort as it was in this
case.” (Igauye v. Howard (1952) 114 Cal.App.2d 122, 127 [249 P.2d 558].)
• “ ‘Negligence in caring for the goods is not an act of dominion over them such
as is necessary to make the bailee liable as a converter.’ Thus a warehouseman’s
negligence in causing a fire which destroyed the plaintiffs’ goods will not
support a conversion claim.” (Gonzales v. Pers. Storage (1997) 56 Cal.App.4th
464, 477 [65 Cal.Rptr.2d 473], internal citations omitted.)
• “Although damages for conversion are frequently the equivalent to the damages
for negligence, i.e., specific recovery of the property or damages based on the
value of the property, negligence is no part of an action for conversion.” (Taylor,
supra 235 Cal.App.3d at p. 1123, internal citation omitted.)
• “A person without legal title to property may recover from a converter if the
plaintiff is responsible to the true owner, such as in the case of a bailee or
pledgee of the property.” (Department of Industrial Relations v. UI Video Stores,
Inc. (1997) 55 Cal.App.4th 1084, 1096 [64 Cal.Rptr.2d 457], internal citation
omitted.)
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• “With respect to plaintiffs’ causes of action for conversion, ‘[o]ne is privileged to
commit an act which would otherwise be a trespass to or a conversion of a
chattel in the possession of another, for the purpose of defending himself or a
third person against the other, under the same conditions which would afford a
privilege to inflict a harmful or offensive contact upon the other for the same
purpose.’ ‘For the purpose of defending his own person, an actor is privileged to
make intentional invasions of another’s interests or personality when the actor
reasonably believes that such other person intends to cause a confinement or a
harmful or offensive contact to the actor, of that such invasion of his interests is
reasonably probable, and the actor reasonably believes that the apprehended
harm can be safely prevented only by the infliction of such harm upon the other.
A similar privilege is afforded an actor for the protection of certain third
persons.’ ” (Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060,
1072 [283 Cal.Rptr. 917], internal citations omitted [labeled “defense of
justification”]; see Rest.2d Torts, § 261.)
• “We recognize that the common law of conversion, which developed initially as
a remedy for the dispossession or other loss of chattel, may be inappropriate for
some modern intangible personal property, the unauthorized use of which can
take many forms. In some circumstances, newer economic torts have developed
that may better take into account the nature and uses of intangible property, the
interests at stake, and the appropriate measure of damages. On the other hand, if
the law of conversion can be adapted to particular types of intangible property
and will not displace other, more suitable law, it may be appropriate to do so.
(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
124 [55 Cal.Rptr.3d 621], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 810–831
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Tort
Liability, ¶ 2:427.4 et seq. (The Rutter Group)
Rylaarsdam & Turner, California Practice Guide: Civil Procedure Before
Trial—Statutes of Limitations, Ch. 4-D, Actions Involving Personal Property
(Including Intangibles), ¶ 4:1101 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.40 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 150, Conversion, §§ 150.10,
150.40, 150.41 (Matthew Bender)
5 California Points and Authorities, Ch. 51, Conversion, § 51.21[3][b] (Matthew
Bender)
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2101. Trespass to Chattels—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully trespassed
on [his/her/nonbinary pronoun/its] personal property. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/possessed/had a right to possess] a
[insert item of personal property];
2. That [name of defendant] intentionally [insert one or more of the
following:]
2. [interfered with [name of plaintiff]’s use or possession of the [insert
item of personal property];]
2. [or]
2. [damaged the [insert item of personal property];]
3. That [name of plaintiff] did not consent;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Sources and Authority
• “Trespass to chattel, although seldom employed as a tort theory in California
. . . , lies where an intentional interference with the possession of personal
property has proximately caused injury. Prosser notes trespass to chattel has
evolved considerably from its original common law application—concerning the
asportation of another’s tangible property—to include even the unauthorized use
of personal property: ‘Its chief importance now,’ according to Prosser, ‘is that
there may be recovery . . . for interferences with the possession of chattels
which are not sufficiently important to be classed as conversion, and so to
compel the defendant to pay the full value of the thing with which he has
interfered. Trespass to chattels survives today, in other words, largely as a little
brother of conversion.’ ” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th
1559, 1566–1567 [54 Cal.Rptr.2d 468], footnotes and internal citations omitted.)
• “Where the conduct complained of does not amount to a substantial interference
with possession or the right thereto, but consists of intermeddling with or use of
or damages to the personal property, the owner has a cause of action for trespass
or case, and may recover only the actual damages suffered by reason of the
impairment of the property or the loss of its use.” (Zaslow v. Kroenert (1946) 29
Cal.2d 541, 551 [176 P.2d 1], internal citations omitted.)
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• “ ‘Though not amounting to conversion, the defendant’s interference must, to be
actionable, have caused some injury to the chattel or to the plaintiff’s rights in it.
Under California law, trespass to chattels “lies where an intentional interference
with the possession of personal property has proximately caused injury.” In
cases of interference with possession of personal property not amounting to
conversion, “the owner has a cause of action for trespass or case, and may
recover only the actual damages suffered by reason of the impairment of the
property or the loss of its use.” . . .’ ” (Jamgotchian v. Slender (2009) 170
Cal.App.4th 1384, 1400–1401 [89 Cal.Rptr.3d 122], original italics, internal
citations omitted.)
• “It is well settled that a person having neither the possession nor the right to the
possession of personal chattels, cannot maintain trespass or trover for an injury
done to the property.” (Triscony v. Orr (1875) 49 Cal. 612, 617, internal citations
omitted.)
• “In order to prevail on a claim for trespass based on accessing a computer
system, the plaintiff must establish: (1) defendant intentionally and without
authorization interfered with plaintiff’s possessory interest in the computer
system; and (2) defendant’s unauthorized use proximately resulted in damage to
plaintiff.” (eBay, Inc. v. Bidder’s Edge (N.D. Cal. 2000) 100 F.Supp.2d 1058,
1069–1070, internal citations omitted.)
• “[W]e uphold both the economic and emotional distress damages plaintiffs
recovered for trespass to personal property arising from [defendant]’s act of
intentionally striking [plaintiff’s dog] with a bat.” (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1608 [146 Cal.Rptr.3d 585].)
• Restatement Second of Torts, section 218, provides:
One who commits a trespass to a chattel is subject to liability to the possessor
of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial
time, or
(d) bodily harm is caused to the possessor, or harm is caused to some
person or thing in which the possessor has a legally protected
interest.
• Restatement Second of Torts, section 222, comment (a), states: “Normally any
dispossession is so clearly a serious interference with the right of control that it
amounts to a conversion; and it is frequently said that any dispossession is a
conversion. There may, however, be minor and unimportant dispossessions, such
as taking another man’s hat by mistake and returning it within two minutes upon
discovery of the mistake, which do not seriously interfere with the other’s right
of control, and so do not amount to conversion. In such a case the remedy of the
action of trespass remains, and will allow recovery of damages for the
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interference with the possession.”
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Tort
Liability, ¶ 2:427.4 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 16, Landlord-Tenant Tort Liabilities, § 16.07
(Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.13 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.262 (Matthew
Bender)
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2102. Presumed Measure of Damages for Conversion (Civ. Code,
§ 3336)
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. [The fair market value of the [insert item of personal property] at
the time [name of defendant] wrongfully exercised control over it;]
1. [or]
1. [Special damages resulting from [name of defendant]’s conduct;]
[and]
2. Reasonable compensation for the time and money spent by [name
of plaintiff] in attempting to recover the [insert item of personal
property]; [and]
3. [Emotional distress suffered by [name of plaintiff] as a result of
[name of defendant]’s conduct.]
[In order to recover special damages, [name of plaintiff] must prove:
1. That [describe special circumstances that require a measure of
damages other than value];
2. That it was reasonably foreseeable that special injury or harm
would result from the conversion; and
3. That reasonable care on [name of plaintiff]’s part would not have
prevented the loss.]
[“Fair market value” is the highest price that a willing buyer would have
paid to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That the buyer and seller know all the uses and purposes for
which the [insert item] is reasonably capable of being used.]
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New September 2003
Directions for Use
The third element of listed damages, emotional distress, is bracketed because it
appears that such damages are recoverable only if the second alternative measure of
damages stated in the first paragraph of Civil Code section 3336 applies. (See
Gonzales v. Pers. Storage (1997) 56 Cal.App.4th 464, 477 [65 Cal.Rptr.2d 473].)
Sources and Authority
• Damages for Wrongful Conversion. Civil Code section 3336.
• Conversion of Negotiable Instruments. Commercial Code section 3420.
• “[W]e are of the opinion that section 3337 can only be held to apply to a
situation where the property was voluntarily applied by the party guilty of
conversion to the benefit of the injured party, and can have no application to a
situation such as here where the application was compelled by a legal duty.”
(Goldberg v. List (1938) 11 Cal.2d 389, 393 [79 P.2d 1087].)
• “Although the first part of section 3336 appears to provide for alternative
measures of recovery, the first of the two measures, namely the value of the
property converted at the time and place of conversion with interest from that
time, is generally considered to be the appropriate measure of damages in a
conversion action. The determination of damages under the alternative provision
is resorted to only where the determination on the basis of value at the time of
conversion would be manifestly unjust.” (Myers v. Stephens (1965) 233
Cal.App.2d 104, 116 [43 Cal.Rptr. 420], internal citations omitted.)
• “As a general rule, the value of the converted property is the appropriate
measure of damages, and resort to the alternative occurs only where a
determination of damages on the basis of value would be manifestly unjust.
Accordingly, a person claiming damages under the alternative provision must
plead and prove special circumstances that require a measure of damages other
than value, and the jury must determine whether it was reasonably foreseeable
that special injury or damage would result from the conversion.” (Lueter v. State
of California (2002) 94 Cal.App.4th 1285, 1302 [115 Cal.Rptr.2d 68], internal
citations omitted.)
• “The damage measures set forth in the first paragraph of section 3336 are in the
alternative. The first alternative is to compensate for the value of the property at
the time of conversion with interest from the time of the taking. The second
alternative is compensation in a sum equal to the amount of loss legally caused
by the conversion and which could have been avoided with a proper degree of
prudence. Both of these alternatives are in addition to the damage element for
the time spent pursuing the converted property set forth in the second paragraph
of section 3336.” (Moreno v. Greenwood Auto Center (2001) 91 Cal.App.4th
201, 209 [110 Cal.Rptr.2d 177], internal citations omitted.)
• “Civil Code section 3336 sets out the presumptive measure of damages in
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conversion, which is rebuttable, save and except when section 3337 applies.
Under Civil Code section 3337, a defendant cannot rebut the presumption by
claiming that he applied the converted property to plaintiff’s benefit when he
took unlawful possession of the property from the beginning. Consequently, the
effect of section 3337 is to prevent mitigation when property is stolen from the
plaintiff and subsequently applied to his benefit. In this situation, the defendant
will not be able to claim that his conversion benefited plaintiff; he will thereby
be prevented from claiming an offset derived from his original wrong. In
contrast to this situation, if the particular facts of a case indicate, as in the
instant case, that the possession was lawful before the conversion occurred . . .
Civil Code section 3337 is inapplicable, and a converter is not precluded from
claiming mitigation of damages.” (Dakota Gardens Apartment Investors “B” v.
Pudwill (1977) 75 Cal.App.3d 346, 351–352 [142 Cal.Rptr. 126].)
• “[W]e conclude that notwithstanding further developments in the law of
negligence, damages for emotional distress growing out of a defendant’s
conversion of personal property are recoverable.” (Gonzales, supra, 56
Cal.App.4th at p. 477, internal citations omitted.)
• “In the absence of special circumstances the appropriate measure of damages for
conversion of personal property is the fair market value of that property plus
interest from the date of conversion, the standard first listed in section 3336,
Civil Code. However, where proof establishes an injury beyond that which
would be adequately compensated by the value of the property and interest, the
court may award such amounts as will indemnify for all proximate reasonable
loss caused by the wrongful act. Where damages for loss of use exceeds the
legal rate of interest, it is appropriate to award the former, but not both.” (Lint v.
Chisholm (1981) 121 Cal.App.3d 615, 624–625 [177 Cal.Rptr. 314], internal
citations omitted.)
• “ ‘To entitle a party to such compensation the [evidence] should tend to show
that money was properly paid out and time properly lost in pursuit of the
property, and how much.’ Such evidence should be definite and certain.
Expenses ‘incurred in preparation for litigation and not in pursuit of property’
cannot be allowed as damages under Civil Code section 3336. Additionally, any
such compensation must be fair, i.e., reasonable.” (Haines v. Parra (1987) 193
Cal.App.3d 1553, 1559 [239 Cal.Rptr. 178], internal citations omitted.)
• “[A]lthough good faith and mistake are not defenses to an action for conversion,
the plaintiff’s damages will be reduced if the defendant returns the property or
the plaintiff otherwise recovers the property.” (Krusi v. Bear, Stearns & Co.
(1983) 144 Cal.App.3d 664, 673 [192 Cal.Rptr. 793], internal citations omitted.)
• “Causes of action for conversion and trespass support an award for exemplary
damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137,
148 [173 Cal.Rptr. 751], internal citation omitted.)
• “Ordinarily ‘value of the property’ at the time of the conversion is determined by
its market value at the time. However, ‘[w]here certain property has a peculiar
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value to a person recovering damages for deprivation thereof, or injury thereto,
that may be deemed to be its value . . . against a willful wrongdoer.’ ” (In re
Brian S. (1982) 130 Cal.App.3d 523, 530 [181 Cal.Rptr. 778], internal citations
omitted.)
• “In an action for damages for conversion, it is the rule that the plaintiff, although
owning but a limited or qualified interest in the property, may, as against a
stranger who has no ownership therein, recover the full value of the property
converted.” (Camp v. Ortega (1962) 209 Cal.App.2d 275, 286 [25 Cal.Rptr.
873], internal citations omitted.)
• “A plaintiff seeking recovery under the alternative provision of the statute must
therefore plead and prove the existence of ‘special circumstances which require a
different measure of damages to be applied.’ Having done so, the trier of fact
must then determine ‘whether it was reasonably forseeable to a prudent person,
having regard for the accompanying circumstances, that injury or damage would
likely result from his wrongful act.’ ” (Krueger v. Bank of America (1983) 145
Cal.App.3d 204, 215 [193 Cal.Rptr. 322], internal citations omitted.)
• “Defendants contend that the anticipated loss of profits is not ‘the natural,
reasonable and proximate result of the wrongful act complained of,’ within the
meaning of section 3336. Although no California case which has applied the
alternative measure of damages in a conversion case has specifically defined this
language, we are satisfied that its meaning is synonymous with the term
‘proximate cause’ or ‘legal cause.’ These terms mean, in essence, ‘that there be
some reasonable connection between the act or omission of the defendant and
the damage which the plaintiff has suffered.’ In determining whether this
connection exists, the question is whether it was reasonably foreseeable to a
prudent person, having regard for the accompanying circumstances, that injury or
damage would likely result from his wrongful act. This question being one of
fact to be determined generally by the trier of fact.” (Myers, supra, 233
Cal.App.2d at pp. 119–120, internal citations omitted.)
• “In exceptional circumstances, to avoid injustice, loss of profits may be the
measure.” (Newhart v. Pierce (1967) 254 Cal.App.2d 783, 794 [62 Cal.Rptr.
553], internal citation omitted.)
• Code of Civil Procedure section 1263.320(a) provides: “The fair market value of
the property taken is the highest price on the date of valuation that would be
agreed to by a seller, being willing to sell but under no particular or urgent
necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and
able to buy but under no particular necessity for so doing, each dealing with the
other with full knowledge of all the uses and purposes for which the property is
reasonably adaptable and available.”
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1906
4 Levy et al., California Torts, Ch. 50, Damages, §§ 50.01–50.03 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 150, Conversion, §§ 150.10,
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CONVERSION CACI No. 2102
150.40–150.41 (Matthew Bender)
5 California Points and Authorities, Ch. 51, Conversion (Matthew Bender)
2103–2199. Reserved for Future Use
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VF-2100. Conversion
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [own/possess/have a right to possess] a
[insert description of personal property]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] substantially interfere with [name of
plaintiff]’s property by knowingly or intentionally [[taking
possession of/preventing [name of plaintiff] from having access to]
the [insert description of personal property]]/[destroying the [insert
description of personal property]/refusing to return [name of
plaintiff]’s [insert description of personal property] after [name of
plaintiff] demanded its return]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] consent?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff] harmed?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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CONVERSION VF-2100
6. What are [name of plaintiff]’s damages?
TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2005; Revised December 2009, December 2010, June 2011,
December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 2100, Conversion—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the case involves multiple items of personal property as to which the evidence
differs, users may need to modify question 2 to focus the jury on the different items.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2101–VF-2199. Reserved for Future Use
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Copyright Judicial Council of California
ECONOMIC INTERFERENCE
2200. Inducing Breach of Contract
2201. Intentional Interference With Contractual Relations—Essential Factual
Elements
2202. Intentional Interference With Prospective Economic Relations—Essential
Factual Elements
2203. Intent
2204. Negligent Interference With Prospective Economic Relations
2205. Intentional Interference With Expected Inheritance—Essential Factual
Elements
2206–2209. Reserved for Future Use
2210. Affirmative Defense—Privilege to Protect Own Economic Interest
2211–2299. Reserved for Future Use
VF-2200. Inducing Breach of Contract
VF-2201. Intentional Interference With Contractual Relations
VF-2202. Intentional Interference With Prospective Economic Relations
VF-2203. Negligent Interference With Prospective Economic Relations
VF-2204–VF-2299. Reserved for Future Use
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2200. Inducing Breach of Contract
[Name of plaintiff] claims that [name of defendant] intentionally caused
[name of third party] to breach [his/her/nonbinary pronoun/its] contract
with [name of plaintiff]. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That there was a contract between [name of plaintiff] and [name of
third party];
2. That [name of defendant] knew of the contract;
3. That [name of defendant] intended to cause [name of third party] to
breach the contract;
4. That [name of defendant]’s conduct caused [name of third party] to
breach the contract;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
If the validity of a contract is an issue, see the series of contracts instructions (CACI
No. 300 et seq.).
Sources and Authority
• “[C]ases have pointed out that while the tort of inducing breach of contract
requires proof of a breach, the cause of action for interference with contractual
relations is distinct and requires only proof of interference.” (Pacific Gas &
Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129 [270 Cal.Rptr.
1, 791 P.2d 587], internal citations omitted.)
• “The elements which a plaintiff must plead to state the cause of action for
intentional interference with contractual relations are (1) a valid contract between
plaintiff and a third party; (2) defendant’s knowledge of this contract; (3)
defendant’s intentional acts designed to induce a breach or disruption of the
contractual relationship; (4) actual breach or disruption of the contractual
relationship; and (5) resulting damage.” (Pacific Gas & Electric Co., supra, 50
Cal.3d at p. 1126, internal citations omitted.)
• “[A] cause of action for intentional interference with contract requires an
underlying enforceable contract. Where there is no existing, enforceable contract,
only a claim for interference with prospective advantage may be pleaded.”
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(PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601 [52
Cal.Rptr.2d 877].)
• “The act of inducing the breach must be an intentional one. If the actor had no
knowledge of the existence of the contract or his actions were not intended to
induce a breach, he cannot be held liable though an actual breach results from
his lawful and proper acts.” (Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33, 37
[112 P.2d 631], internal citations omitted.)
• “ ‘To recover damages for inducing a breach of contract, the plaintiff need not
establish that the defendant had full knowledge of the contract’s terms. Comment
i to Restatement Second of Torts, section 766, . . . states: “To be subject to
liability [for inducing a breach of contract], the actor must have knowledge of
the contract with which he is interfering and of the fact that he is interfering
with the performance of the contract.” ’ ” (Jenni Rivera Enterprises, LLC v.
Latin World Entertainment Holdings, Inc. (2019) 36 Cal.App.5th 766, 783 [249
Cal.Rptr.3d 122].)
• “It is not enough that the actor intended to perform the acts which caused the
result—he or she must have intended to cause the result itself.” (Kasparian v.
County of Los Angeles (1995) 38 Cal.App.4th 242, 261 [45 Cal.Rptr.2d 90].)
• “The question is whether a plaintiff must plead and prove that the defendant
engaged in wrongful acts with the specific intent of interfering with the plaintiff’s
business expectancy. We conclude that specific intent is not a required element
of the tort of interference with prospective economic advantage. While a plaintiff
may satisfy the intent requirement by pleading specific intent, i.e., that the
defendant desired to interfere with the plaintiff’s prospective economic
advantage, a plaintiff may alternately plead that the defendant knew that the
interference was certain or substantially certain to occur as a result of its action.”
(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1154 [131
Cal.Rptr.2d 29, 63 P.3d 937], original italics.)
• “The actionable wrong lies in the inducement to break the contract or to sever
the relationship, not in the kind of contract or relationship so disrupted, whether
it is written or oral, enforceable or not enforceable.” (Pacific Gas & Electric
Co., supra, 50 Cal.3d at p. 1127.)
• “ ‘[I]t may be actionable to induce a party to a contract to terminate the contract
according to its terms.’. . .‘[I]t is the contractual relationship, not any term of
the contract, which is protected against outside interference.’ ” (I-CA Enterprises,
Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289 [185 Cal.Rptr.3d
24], internal citation omitted.)
• “[T]he tort cause of action for interference with a contract does not lie against a
party to the contract. [Citations.] [¶] . . . The tort duty not to interfere with the
contract falls only on strangers-interlopers who have no legitimate interest in the
scope or course of the contract’s performance.” (Applied Equipment Corp. v.
Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514 [28 Cal.Rptr.2d 475, 869
P.2d 454], internal citations omitted.)
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• “[I]nterference with an at-will contract is actionable interference with the
contractual relationship, on the theory that a contract ‘at the will of the parties,
respectively, does not make it one at the will of others. [Citations]’ ” (Pacific
Gas & Electric Co., supra, 50 Cal.3d at p. 1127, internal citations and quotations
omitted.)
• “Because interference with an existing contract receives greater solicitude than
does interference with prospective economic advantage, it is not necessary that
the defendant’s conduct be wrongful apart from the interference with the contract
itself.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55
[77 Cal.Rptr.2d 709, 960 P.2d 513], internal citations omitted.)
• “ ‘[A] person is not justified in inducing a breach of contract simply because he
is in competition with one of the parties to the contract and seeks to further his
own economic advantage at the expense of the other. [Citations.]’ This is
because, ‘[w]hatever interest society has in encouraging free and open
competition by means not in themselves unlawful, contractual stability is
generally accepted as of greater importance than competitive freedom.’ A party
may not, ‘under the guise of competition actively and affirmatively induce the
breach of a competitor’s contract.’ ” (I-CA Enterprises, Inc., supra, 235
Cal.App.4th at p. 290, internal citations omitted.)
• “We conclude that a plaintiff seeking to state a claim for intentional interference
with contract or prospective economic advantage because defendant induced
another to undertake litigation, must allege that the litigation was brought
without probable cause and that the litigation concluded in plaintiff’s favor.”
(Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1137.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 842–853
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.110–40.117 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.132 et seq. (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.20 et seq.
(Matthew Bender)
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2201. Intentional Interference With Contractual
Relations—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] intentionally interfered
with the contract between [him/her/nonbinary pronoun/it] and [name of
third party]. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That there was a contract between [name of plaintiff] and [name of
third party];
2. That [name of defendant] knew of the contract;
3. That [name of defendant]’s conduct prevented performance or
made performance more expensive or difficult;
4. That [name of defendant] [intended to disrupt the performance of
this contract/ [or] knew that disruption of performance was
certain or substantially certain to occur];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised June 2012, December 2013
Directions for Use
This tort is sometimes called intentional interference with performance of a contract.
(See Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 291 [136 Cal.Rptr.3d
97].) If the validity of a contract is an issue, see the series of contracts instructions
(CACI No. 300 et seq.).
Sources and Authority
• “[A]llowing interference with at-will contract claims without requiring
independent wrongfulness risks chilling legitimate business competition. An
actionable claim for interference with contractual relations does not require that
the defendant have the specific intent to interfere with a contract. A plaintiff
states a claim so long as it alleges that the defendant knew interference was
‘ “certain or substantially certain to occur as a result of [defendant’s] action.” ’
Without an independent wrongfulness requirement, a competitor’s good faith
offer that causes a business to withdraw from an at-will contract could trigger
liability or at least subject the competitor to costly litigation. In fact, even if a
business in an at-will contract solicits offers on its own initiative, a third party
that submits an offer could face liability if it knew that acceptance of the offer
would cause the soliciting business to withdraw from its existing contract.
Allowing disappointed competitors to state claims for interference with at-will
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contracts without alleging independently wrongful conduct may expose routine
and legitimate business competition to litigation. [¶] We therefore hold that to
state a claim for interference with an at-will contract by a third party, the
plaintiff must allege that the defendant engaged in an independently wrongful
act.” (Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1148 [266
Cal.Rptr.3d 665, 470 P.3d 571], internal citation omitted.)
• “California recognizes a cause of action against noncontracting parties who
interfere with the performance of a contract. ‘It has long been held that a
stranger to a contract may be liable in tort for intentionally interfering with the
performance of the contract.’ ” (Redfearn v. Trader Joe’s Co. (2018) 20
Cal.App.5th 989, 997 [230 Cal.Rptr.3d 98], original italics.)
• “[C]ases have pointed out that while the tort of inducing breach of contract
requires proof of a breach, the cause of action for interference with contractual
relations is distinct and requires only proof of interference.” (Pacific Gas &
Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129 [270 Cal.Rptr.
1, 791 P.2d 587], internal citations omitted.)
• “The elements which a plaintiff must plead to state the cause of action for
intentional interference with contractual relations are (1) a valid contract between
plaintiff and a third party; (2) defendant’s knowledge of this contract; (3)
defendant’s intentional acts designed to induce a breach or disruption of the
contractual relationship; (4) actual breach or disruption of the contractual
relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear
Stearns & Co. (1990) 50 Cal.3d 1118, 1126 [270 Cal.Rptr. 1, 791 P.2d 587],
internal citations omitted.)
• “[A] cause of action for intentional interference with contract requires an
underlying enforceable contract. Where there is no existing, enforceable contract,
only a claim for interference with prospective advantage may be pleaded.”
(PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601 [52
Cal.Rptr.2d 877].)
• “Because interference with an existing contract receives greater solicitude than
does interference with prospective economic advantage, it is not necessary that
the defendant’s conduct be wrongful apart from the interference with the contract
itself.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55
[77 Cal.Rptr.2d 709, 960 P.2d 513], internal citations omitted.)
• “The question is whether a plaintiff must plead and prove that the defendant
engaged in wrongful acts with the specific intent of interfering with the plaintiff’s
business expectancy. We conclude that specific intent is not a required element
of the tort of interference with prospective economic advantage. While a plaintiff
may satisfy the intent requirement by pleading specific intent, i.e., that the
defendant desired to interfere with the plaintiff’s prospective economic
advantage, a plaintiff may alternately plead that the defendant knew that the
interference was certain or substantially certain to occur as a result of its action.”
(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1154 [131
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Cal.Rptr.2d 29, 63 P.3d 937], original italics.)
• “We caution that although we find the intent requirement to be the same for the
torts of intentional interference with contract and intentional interference with
prospective economic advantage, these torts remain distinct.” (Korea Supply Co.,
supra, 29 Cal.4th at p. 1157.)
• “Plaintiff need not allege an actual or inevitable breach of contract in order to
state a claim for disruption of contractual relations. We have recognized that
interference with the plaintiff’s performance may give rise to a claim for
interference with contractual relations if plaintiff’s performance is made more
costly or more burdensome. Other cases have pointed out that while the tort of
inducing breach of contract requires proof of a breach, the cause of action for
interference with contractual relations is distinct and requires only proof of
interference.” (Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1129, internal
citations omitted.)
• “[A] contracting party cannot be held liable in tort for conspiracy to interfere
with its own contract.” (Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222
Cal.App.4th 945, 961 [166 Cal.Rptr.3d 134], original italics.)
• “[O]ne, like [defendant] here, who is not a party to the contract or an agent of a
party to the contract is a ‘stranger’ for purpose of the tort of intentional
interference with contract. A nonparty to a contract that contemplates the
nonparty’s performance, by that fact alone, is not immune from liability for
contract interference. Liability is properly imposed if each of the elements of the
tort are otherwise satisfied.” (Redfearn, supra, 20 Cal.App.5th at p. 1003.)
• “[I]nterference with an at-will contract is actionable interference with the
contractual relationship, on the theory that a contract ‘at the will of the parties,
respectively, does not make it one at the will of others.’ ” (Pacific Gas &
Electric Co., supra, 50 Cal.3d at p. 1127, internal citations and quotations
omitted.)
• “We conclude that a plaintiff seeking to state a claim for intentional interference
with contract or prospective economic advantage because defendant induced
another to undertake litigation, must allege that the litigation was brought
without probable cause and that the litigation concluded in plaintiff’s favor.”
(Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1137.)
• “[A]n actor with ‘ “a financial interest in the business of another is privileged
purposely to cause him not to enter into or continue a relation with a third
person in that business if the actor [¶] (a) does not employ improper means, and
[¶] (b) acts to protect his interest from being prejudiced by the relation[.]” ’ ”
(Asahi Kasei Pharma Corp, supra, 222 Cal.App.4th at p. 962.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 854, 855, 875
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference With Contract Or Prospective Economic Advantage, ¶ 5:461
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et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.110–40.117 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.20 et seq.
(Matthew Bender)
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2202. Intentional Interference With Prospective Economic
Relations—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] intentionally interfered
with an economic relationship between [him/her/nonbinary pronoun/it]
and [name of third party] that probably would have resulted in an
economic benefit to [name of plaintiff]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of third party] were in an
economic relationship that probably would have resulted in an
economic benefit to [name of plaintiff];
2. That [name of defendant] knew of the relationship;
3. That [name of defendant] engaged in [specify conduct determined by
the court to be wrongful];
4. That by engaging in this conduct, [name of defendant] [intended to
disrupt the relationship/ [or] knew that disruption of the
relationship was certain or substantially certain to occur];
5. That the relationship was disrupted;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised June 2013, December 2013
Directions for Use
Regarding element 3, the interfering conduct must be wrongful by some legal
measure other than the fact of the interference itself. (Della Penna v. Toyota Motor
Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [45 Cal.Rptr.2d 436, 902 P.2d 740].)
This conduct must fall outside the privilege of fair competition. (PMC, Inc. v. Saban
Entertainment, Inc. (1996) 45 Cal.App.4th 579, 603 [52 Cal.Rptr.2d 877],
disapproved on other grounds in Korea Supply Co. v. Lockheed Martin Corp. (2003)
29 Cal.4th 1134, 1159 fn. 11 [131 Cal.Rptr.2d 29, 63 P.3d 937].) Whether the
conduct alleged qualifies as wrongful if proven or falls within the privilege of fair
competition is resolved by the court as a matter of law. If the court lets the case go
to trial, the jury’s role is not to determine wrongfulness, but simply to find whether
or not the defendant engaged in the conduct. If the conduct is tortious, the judge
should instruct on the elements of the tort.
Sources and Authority
• “The tort of intentional or negligent interference with prospective economic
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CACI No. 2202 ECONOMIC INTERFERENCE
advantage imposes liability for improper methods of disrupting or diverting the
business relationship of another which fall outside the boundaries of fair
competition.” (Settimo Associates v. Environ Systems, Inc. (1993) 14 Cal.App.4th
842, 845 [17 Cal.Rptr.2d 757], internal citation omitted.)
• “The tort of interference with prospective economic advantage protects the same
interest in stable economic relationships as does the tort of interference with
contract, though interference with prospective advantage does not require proof
of a legally binding contract. The chief practical distinction between interference
with contract and interference with prospective economic advantage is that a
broader range of privilege to interfere is recognized when the relationship or
economic advantage interfered with is only prospective.” (Pacific Gas & Electric
Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 [270 Cal.Rptr. 1, 791
P.2d 587], internal citations omitted.)
• “Intentional interference with prospective economic advantage has five elements:
(1) the existence, between the plaintiff and some third party, of an economic
relationship that contains the probability of future economic benefit to the
plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally
wrongful acts designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm proximately caused by the defendant’s
action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2
Cal.5th 505, 512 [213 Cal.Rptr.3d 568, 388 P.3d 800]].)
• “The tort’s requirements ‘presuppose the relationship existed at the time of the
defendant’s allegedly tortious acts lest liability be imposed for actually and
intentionally disrupting a relationship which has yet to arise.’ ” (Roy Allan Slurry
Seal, Inc., supra, 2 Cal.5th at p. 518.)
• “The question is whether a plaintiff must plead and prove that the defendant
engaged in wrongful acts with the specific intent of interfering with the plaintiff’s
business expectancy. We conclude that specific intent is not a required element
of the tort of interference with prospective economic advantage. While a plaintiff
may satisfy the intent requirement by pleading specific intent, i.e., that the
defendant desired to interfere with the plaintiff’s prospective economic
advantage, a plaintiff may alternately plead that the defendant knew that the
interference was certain or substantially certain to occur as a result of its action.”
(Korea Supply Co., supra, 29 Cal.4th at p. 1154, original italics.)
• “[A] plaintiff seeking to recover for an alleged interference with prospective
contractual or economic relations must plead and prove as part of its case-in-
chief that the defendant not only knowingly interfered with the plaintiff’s
expectancy, but engaged in conduct that was wrongful by some legal measure
other than the fact of interference itself.” (Della Penna, supra, 11 Cal.4th at p.
393.)
• “With respect to the third element, a plaintiff must show that the defendant
engaged in an independently wrongful act. It is not necessary to prove that the
defendant acted with the specific intent, or purpose, of disrupting the plaintiff’s
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prospective economic advantage. Instead, ‘it is sufficient for the plaintiff to plead
that the defendant “[knew] that the interference is certain or substantially certain
to occur as a result of his action.” ’ ‘[A]n act is independently wrongful if it is
unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory,
common law, or other determinable legal standard.’ ‘[A]n act must be wrongful
by some legal measure, rather than merely a product of an improper, but lawful,
purpose or motive.’ ” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155
Cal.App.4th 1528, 1544–1545 [67 Cal.Rptr.3d 54], internal citations omitted.)
• “Della Penna did not specify what sort of conduct would qualify as ‘wrongful’
apart from the interference itself.” (LiMandri v. Judkins (1997) 52 Cal.App.4th
326, 340 [60 Cal.Rptr.2d 539].)
• “Justice Mosk’s concurring opinion in Della Penna advocates that proscribed
conduct be limited to means that are independently tortious or a restraint of
trade. The Oregon Supreme Court suggests that conduct may be wrongful if it
violates ‘a statute or other regulation, or a recognized rule of common law, or
perhaps an established standard of a trade or profession.’ . . . Our Supreme
Court may later have occasion to clarify the meaning of ‘wrongful conduct’ or
‘wrongfulness,’ or it may be that a precise definition proves impossible.” (Arntz
Contracting Co. v. St. Paul Fire and Marine Insurance Co. (1996) 47
Cal.App.4th 464, 477–478 [54 Cal.Rptr.2d 888], internal citations omitted.)
• “Commonly included among improper means are actions which are
independently actionable, violations of federal or state law or unethical business
practices, e.g., violence, misrepresentation, unfounded litigation, defamation,
trade libel or trade mark infringement.” (PMC, Inc., supra, 45 Cal.App.4th at p.
603, internal citation omitted.)
• “[A] plaintiff need not allege the interference and a second act independent of
the interference. Instead, a plaintiff must plead and prove that the conduct
alleged to constitute the interference was independently wrongful, i.e., unlawful
for reasons other than that it interfered with a prospective economic advantage.
[Citations.]” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th
1395, 1404 [168 Cal.Rptr.3d 228].)
• “The question has arisen as to whether, in order to be actionable as interference
with prospective economic advantage, the interfering act must be independently
wrongful as to the plaintiff. It need not be. There is ‘no sound reason for
requiring that a defendant’s wrongful actions must be directed towards the
plaintiff seeking to recover for this tort. The interfering party is liable to the
interfered-with party [even] “when the independently tortious means the
interfering party uses are independently tortious only as to a third party.” ’ ”
(Crown Imports LLC, supra, 223 Cal.App.4th at p. 1405, original italics.)
• “[T]o state a cause of action for intentional or negligent interference with
prospective economic advantage, it is not necessary to also plead a separate,
stand-alone tort cause of action.” (Redfearn v. Trader Joe’s Co. (2018) 20
Cal.App.5th 989, 1006 [230 Cal.Rptr.3d 98], internal citations omitted.)
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• “[O]ur focus for determining the wrongfulness of those intentional acts should
be on the defendant’s objective conduct, and evidence of motive or other
subjective states of mind is relevant only to illuminating the nature of that
conduct.” (Arntz Contracting Co., supra, 47 Cal.App.4th at p. 477.)
• “[A]n essential element of the tort of intentional interference with prospective
business advantage is the existence of a business relationship with which the
tortfeasor interfered. Although this need not be a contractual relationship, an
existing relationship is required.” (Roth v. Rhodes (1994) 25 Cal.App.4th 530,
546 [30 Cal.Rptr.2d 706], internal citations omitted.)
• “If a party has no liability in tort for refusing to perform an existing contract, no
matter what the reason, he or she certainly should not have to bear a burden in
tort for refusing to enter into a contract where he or she has no obligation to do
so. If that same party cannot conspire with a third party to breach or interfere
with his or her own contract then certainly the result should be no different
where the ‘conspiracy’ is to disrupt a relationship which has not even risen to
the dignity of an existing contract and the party to that relationship was entirely
free to ‘disrupt’ it on his or her own without legal restraint or penalty.”
(Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 266 [45
Cal.Rptr.2d 90], original italics.)
• “Although varying language has been used to express this threshold requirement,
the cases generally agree it must be reasonably probable that the prospective
economic advantage would have been realized but for defendant’s interference.”
(Youst v. Longo (1987) 43 Cal.3d 64, 71 [233 Cal.Rptr. 294, 729 P.2d 728],
internal citations omitted.)
• “Under [the competition] privilege, ‘ “a competitor is free to divert business to
himself as long as he uses fair and reasonable means.’ [Citation.]’ ” (I-CA
Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 292–293
[185 Cal.Rptr.3d 24].)
• “Since the crux of the competition privilege is that one can interfere with a
competitor’s prospective contractual relationship with a third party as long as the
interfering conduct is not independently wrongful (i.e., wrongful apart from the
fact of the interference itself), Della Penna’s requirement that a plaintiff plead
and prove such wrongful conduct in order to recover for intentional interference
with prospective economic advantage has resulted in a shift of burden of proof.
It is now the plaintiff’s burden to prove, as an element of the cause of action
itself, that the defendant’s conduct was independently wrongful and, therefore,
was not privileged rather than the defendant’s burden to prove, as an affirmative
defense, that it’s [sic] conduct was not independently wrongful and therefore was
privileged.” (Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square
Venture Partners (1997) 52 Cal.App.4th 867, 881 [60 Cal.Rptr.2d 830].)
• “[I]n the absence of other evidence, timing alone may be suffıcient to prove
causation . . . . Thus, . . . the real issue is whether, in the circumstances of the
case, the proximity of the alleged cause and effect tends to demonstrate some
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ECONOMIC INTERFERENCE CACI No. 2202
relevant connection. If it does, then the issue is one for the fact finder to
decide.” (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1267 [119
Cal.Rptr.3d 127], original italics.)
• “There are three formulations of the manager’s privilege: (1) absolute, (2) mixed
motive, and (3) predominant motive.” (Halvorsen v. Aramark Uniform Services,
Inc. (1998) 65 Cal.App.4th 1383, 1391 [77 Cal.Rptr.2d 383].)
• “We conclude that a plaintiff seeking to state a claim for intentional interference
with contract or prospective economic advantage because defendant induced
another to undertake litigation, must allege that the litigation was brought
without probable cause and that the litigation concluded in plaintiff’s favor.”
(Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1137.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 854–855, 875
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference With Contract Or Prospective Economic Advantage,
¶¶ 5:463, 5:470 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-G, Intentional
Interference With Contract Or Economic Advantage, ¶ 11:138.5 (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.100–40.105 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, §§ 122.23, 122.32
(Matthew Bender)
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2203. Intent
Revoked December 2013
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2204. Negligent Interference With Prospective Economic
Relations
[Name of plaintiff] claims that [name of defendant] negligently interfered
with a relationship between [him/her/nonbinary pronoun/it] and [name of
third party] that probably would have resulted in an economic benefit to
[name of plaintiff]. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of plaintiff] and [name of third party] were in an
economic relationship that probably would have resulted in a
future economic benefit to [name of plaintiff];
2. That [name of defendant] knew or should have known of this
relationship;
3. That [name of defendant] knew or should have known that this
relationship would be disrupted if [he/she/nonbinary pronoun/it]
failed to act with reasonable care;
4. That [name of defendant] failed to act with reasonable care;
5. That [name of defendant] engaged in wrongful conduct through
[insert grounds for wrongfulness, e.g., breach of contract with
another, misrepresentation, fraud, violation of statute];
6. That the relationship was disrupted;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s wrongful conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised November 2020
Directions for Use
Regarding the fifth element, the judge must specifically state for the jury the
conduct that the judge has determined as a matter of law would satisfy the
“wrongful conduct” standard. This conduct must fall outside the privilege of fair
competition. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th
376, 393 [45 Cal.Rptr.2d 436, 902 P.2d 740]; Settimo Associates v. Environ Systems,
Inc. (1993) 14 Cal.App.4th 842, 845 [17 Cal.Rptr.2d 757].) The jury must then
decide whether the defendant engaged in the conduct as defined by the judge. If the
conduct is tortious, judge should instruct on the elements of the tort.
Sources and Authority
• “The tort of intentional or negligent interference with prospective economic
advantage imposes liability for improper methods of disrupting or diverting the
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business relationship of another which fall outside the boundaries of fair
competition.” (Settimo Associates, supra, 14 Cal.App.4th at p. 845, internal
citation omitted.)
• “The elements of negligent interference with prospective economic advantage are
(1) the existence of an economic relationship between the plaintiff and a third
party containing the probability of future economic benefit to the plaintiff; (2)
the defendant’s knowledge of the relationship; (3) the defendant’s knowledge
(actual or construed) that the relationship would be disrupted if the defendant
failed to act with reasonable care; (4) the defendant’s failure to act with
reasonable care; (5) actual disruption of the relationship; (6) and economic harm
proximately caused by the defendant’s negligence.” (Redfearn v. Trader Joe’s
Co. (2018) 20 Cal.App.5th 989, 1005 [230 Cal.Rptr.3d 98].)
• “The tort of negligent interference with prospective economic advantage is
established where a plaintiff demonstrates that (1) an economic relationship
existed between the plaintiff and a third party which contained a reasonably
probable future economic benefit or advantage to plaintiff; (2) the defendant
knew of the existence of the relationship and was aware or should have been
aware that if it did not act with due care its actions would interfere with this
relationship and cause plaintiff to lose in whole or in part the probable future
economic benefit or advantage of the relationship; (3) the defendant was
negligent; and (4) such negligence caused damage to plaintiff in that the
relationship was actually interfered with or disrupted and plaintiff lost in whole
or in part the economic benefits or advantage reasonably expected from the
relationship.” (North American Chemical Co. v. Superior Court (1997) 59
Cal.App.4th 764, 786 [69 Cal.Rptr.2d 466].)
• “ ‘The tort of negligent interference with economic relationship arises only when
the defendant owes the plaintiff a duty of care.’ ” (LiMandri v. Judkins (1997) 52
Cal.App.4th 326, 348 [60 Cal.Rptr.2d 539], original italics, internal citation
omitted.)
• “Where a special relationship exists between the parties, a plaintiff may recover
for loss of expected economic advantage through the negligent performance of a
contract although the parties were not in contractual privity.” (J’Aire Corp. v.
Gregory (1979) 24 Cal.3d 799, 804 [157 Cal.Rptr. 407, 598 P.2d 60].)
• The trial court should instruct the jury on the “independently wrongful” element
of the tort of negligent interference with prospective economic advantage.
(National Medical Transportation Network v. Deloitte & Touche (1998) 62
Cal.App.4th 412, 440 [72 Cal.Rptr.2d 720].)
• “Commonly included among improper means are actions which are
independently actionable, violations of federal or state law or unethical business
practices, e.g., violence, misrepresentation, unfounded litigation, defamation,
trade libel or trade mark infringement.” (PMC, Inc. v. Saban Entertainment, Inc.
(1996) 45 Cal.App.4th 579, 603 [52 Cal.Rptr.2d 877], internal citation omitted,
disapproved on other grounds in Korea Supply Co. v. Lockheed Martin Corp.
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ECONOMIC INTERFERENCE CACI No. 2204
(2003) 29 Cal.4th 1134, 1159 fn. 11 [131 Cal.Rptr.2d 29, 63 P.3d 937].)
• “While the trial court and [defendant] are correct that a defendant incurs liability
for interfering with another’s prospective economic advantage only if the
defendant’s conduct was independently wrongful, we have been directed to no
California authority, and have found none, for the trial court’s conclusion that
the wrongful conduct must be intentional or willful. The defendant’s conduct
must ‘fall outside the boundaries of fair competition’. . . , but negligent
misconduct or the violation of a statutory obligation suffice. The approved CACI
No. 2204 does not indicate otherwise and, in fact, indicates that either a
misrepresentation or ‘violation of statute’ is sufficient.” (Venhaus v. Shultz (2007)
155 Cal.App.4th 1072, 1079–1080 [66 Cal.Rptr.3d 432], internal citations
omitted.)
• “The fact that the defendant’s conduct was independently wrongful is an element
of the interference cause of action itself. In addition, the wrongful interfering act
can be independently tortious only as to a third party; it need not be
independently wrongful as to the plaintiff. Accordingly, . . . to state a cause of
action for intentional or negligent interference with prospective economic
advantage, it is not necessary to also plead a separate, stand-alone tort cause of
action.” (Redfearn, supra, 20 Cal.App.5th at p. 1006, internal citations omitted.)
• “[A]mong the criteria for establishing [the existence of] a duty of care is the
‘blameworthiness’ of the defendant’s conduct. For negligent interference, a
defendant’s conduct is blameworthy only if it was independently wrongful apart
from the interference itself.” (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179,
1187 [81 Cal.Rptr.2d 39], internal citations omitted.)
• “Under the privilege of free competition, a competitor is free to divert business
to himself as long as he uses fair and reasonable means. Thus, the plaintiff must
present facts indicating the defendant’s interference is somehow wrongful—i.e.,
based on facts that take the defendant’s actions out of the realm of legitimate
business transactions.” (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman,
Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1153–1154 [265 Cal.Rptr.
330], internal citations omitted.)
• “Since the crux of the competition privilege is that one can interfere with a
competitor’s prospective contractual relationship with a third party as long as the
interfering conduct is not independently wrongful (i.e., wrongful apart from the
fact of the interference itself), Della Penna’s requirement that a plaintiff plead
and prove such wrongful conduct in order to recover for intentional interference
with prospective economic advantage has resulted in a shift of burden of proof.
It is now the plaintiff’s burden to prove, as an element of the cause of action
itself, that the defendant’s conduct was independently wrongful and, therefore,
was not privileged rather than the defendant’s burden to prove, as an affirmative
defense, that it’s [sic] conduct was not independently wrongful and therefore was
privileged.” (Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square
Venture Partners (1997) 52 Cal.App.4th 867, 881 [60 Cal.Rptr.2d 830].)
• “There are three formulations of the manager’s privilege: (1) absolute, (2) mixed
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motive, and (3) predominant motive.” (Halvorsen v. Aramark Uniform Services,
Inc. (1998) 65 Cal.App.4th 1383, 1391 [77 Cal.Rptr.2d 383].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 867–869
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.104 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.33 (Matthew
Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.135 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.70 (Matthew
Bender)
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2205. Intentional Interference With Expected
Inheritance—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] intentionally interfered
with [his/her/nonbinary pronoun] expectation of receiving an inheritance
from the estate of [name of decedent]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] expected to receive an inheritance from
the estate of [name of decedent];
2. That [name of defendant] knew of the expectation;
3. That [name of defendant] engaged in [specify conduct determined by
the court to be wrongful];
4. That by engaging in this conduct, [name of defendant] intended to
interfere with [name of plaintiff]’s expected inheritance;
5. That there was a reasonable certainty that [name of plaintiff]
would have received the inheritance if [name of defendant] had not
interfered;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[Name of plaintiff] does not have to have been named as a beneficiary in
the will or trust or have been named to receive the particular property
at issue. A reasonable certaintyof receipt is sufficient.
New June 2013
Directions for Use
California recognizes the tort of intentional interference with expected inheritance
(IIEI). (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039 [141 Cal.Rptr.3d 142].)
The wrongful conduct alleged in element 3 must have been directed toward
someone other than the plaintiff. If the defendant’s tortious conduct was directed at
the plaintiff rather than at the testator, the plaintiff has an independent tort claim
against the defendant and asserting the IIEI tort is unnecessary. It also must be
wrongful for some reason other than the fact of the interference. (Beckwith, supra,
205 Cal.App.4th at pp. 1057–1058.) Whether the conduct alleged qualifies as
wrongful if proven will be resolved by the court as a matter of law. The jury’s role
is not to determine wrongfulness, but simply to find whether or not the defendant
engaged in the conduct. If the conduct is tortious, the judge should instruct on the
elements of the tort.
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Sources and Authority
• “To state a claim for IIEI, a plaintiff must allege five distinct elements. First, the
plaintiff must plead he had an expectancy of an inheritance. It is not necessary to
allege that ‘one is in fact named as a beneficiary in the will or that one has been
devised the particular property at issue. [Citation.] That requirement would
defeat the purpose of an expectancy claim. [¶] . . . [¶] It is only the expectation
that one will receive some interest that gives rise to a cause of action.
[Citations.]’ Second, as in other interference torts, the complaint must allege
causation. ‘This means that, as in other cases involving recovery for loss of
expectancies . . . there must be proof amounting to a reasonable degree of
certainty that the bequest or devise would have been in effect at the time of the
death of the testator . . . if there had been no such interference.’ Third, the
plaintiff must plead intent, i.e., that the defendant had knowledge of the
plaintiff’s expectancy of inheritance and took deliberate action to interfere with
it. Fourth, the complaint must allege that the interference was conducted by
independently tortious means, i.e., the underlying conduct must be wrong for
some reason other than the fact of the interference. Finally, the plaintiff must
plead he was damaged by the defendant’s interference.” (Beckwith, supra, 205
Cal.App.4th at p. 1057, internal citations omitted.)
• “Additionally, an IIEI defendant must direct the independently tortious conduct
at someone other than the plaintiff. The cases firmly indicate a requirement that
‘[t]he fraud, duress, undue influence, or other independent tortious conduct
required for this tort is directed at the testator. The beneficiary is not directly
defrauded or unduly influenced; the testator is.’ In other words, the defendant’s
tortious conduct must have induced or caused the testator to take some action
that deprives the plaintiff of his expected inheritance.” (Beckwith, supra, 205
Cal.App.4th at pp. 1057–1058, internal citations omitted.)
• “[W]e conclude that a court should recognize the tort of IIEI if it is necessary to
afford an injured plaintiff a remedy. The integrity of the probate system and the
interest in avoiding tort liability for inherently speculative claims are very
important considerations. However, a court should not take the ‘drastic
consequence of an absolute rule which bars recovery in all . . . cases[]’ when a
new tort cause of action can be defined in such a way so as to minimize the
costs and burdens associated with it. As discussed above, California case law in
analogous contexts shields defendants from tort liability when the expectancy is
too speculative. In addition, case law from other jurisdictions bars IIEI claims
when an adequate probate remedy exists. By recognizing similar restrictions in
IIEI actions, we strike the appropriate balance between respecting the integrity of
the probate system, guarding against tort liability for inherently speculative
claims, and protecting society’s interest in providing a remedy for injured
parties.” (Beckwith, supra, 205 Cal.App.4th at p. 1056, internal citations
omitted.)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 854
14 Witkin, Summary of California Law (11th ed. 2017) Wills, § 37, 598, 599
Ross et al., California Practice Guide: Probate, Ch. 15-A, Will Contests, ¶ 15:115.6
et seq. (The Rutter Group)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133[2][b] (Matthew Bender)
2206–2209. Reserved for Future Use
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2210. Affirmative Defense—Privilege to Protect Own Economic
Interest
[Name of defendant] claims that there was no intentional interference
with contractual relations because [he/she/nonbinary pronoun/it] acted
only to protect [his/her/nonbinary pronoun/its] legitimate economic
interests. To succeed, [name of defendant] must prove all of the following:
1. That [name of defendant] had a[n] [legitimate] economic interest in
the contractual relations because [specify existing economic
interest];
2. That [name of defendant] acted only to protect [his/her/nonbinary
pronoun/its] own economic interest;
3. That [name of defendant] acted reasonably and in good faith to
protect it; and
4. That [name of defendant] used appropriate means to protect it.
New June 2016; Revised November 2020
Directions for Use
Give this instruction as an affirmative defense to a claim for intentional interference
with contractual relations. (See CACI No. 2201.) The defense presents a justification
based on the defendant’s right to protect its own economic interest.
In element 1, the jury should be told the specific economic interest that the
defendant was acting to protect. Include “legitimate” if the jury will be asked to
determine whether that economic interest was legitimate, as opposed perhaps to
pretextual or fraudulent.
Sources and Authority
• “In harmony with the general guidelines of the test for justification is the narrow
protection afforded to a party where (1) he has a legally protected interest, (2) in
good faith threatens to protect it, and (3) the threat is to protect it by appropriate
means. Prosser adds: ‘Where the defendant acts to further his own advantage,
other distinctions have been made. If he has a present, existing economic interest
to protect, such as the ownership or condition of property, or a prior contract of
his own, or a financial interest in the affairs of the person persuaded, he is
privileged to prevent performance of the contract of another which threatens it;
and for obvious reasons of policy he is likewise privileged to assert an honest
claim, or bring or threaten a suit in good faith.’ ” (Richardson v. La Rancherita
(1979) 98 Cal.App.3d 73, 81 [159 Cal.Rptr. 285], internal citation omitted.)
• “Justification for the interference is an affirmative defense and not an element of
plaintiff’s cause of action.” (Richardson, supra, 98 Cal.App.3d at p. 80.)
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• “Something other than sincerity and an honest conviction by a party in his
position is required before justification for his conduct on the grounds of ‘good
faith’ can be established. There must be an objective basis for the belief which
requires more than reliance on counsel.” (Richardson, supra, 98 Cal.App.3d at
pp. 82−83.)
• “A thoroughly bad motive, that is, a purpose solely to harm the plaintiff, of
course, is sufficient to exclude any apparent privilege which the interests of the
parties might otherwise create, just as such a motive will defeat the immunity of
any other conditional privilege. If the defendant does not act in a bona fide
attempt to protect his own interest or the interest of others involved in the
situation, he forfeits the immunity of the privilege. . . . Conduct is actionable,
when it is indulged solely to harm another, since the legitimate interest of the
defendant is practically eliminated from consideration. The defendant’s interest,
although of such a character as to justify an invasion of another’s similar
interest, is not to be taken into account when the defendant acts, not for the
purpose of protecting that interest, but solely to damage the plaintiff.” (Bridges v.
Cal-Pacific Leasing Co. (1971) 16 Cal.App.3d 118, 132 [93 Cal.Rptr. 796],
original italics.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 876
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.119 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.137 (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.42 et seq.
(Matthew Bender)
2211–2299. Reserved for Future Use
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VF-2200. Inducing Breach of Contract
We answer the questions submitted to us as follows:
1. Was there a contract between [name of plaintiff] and [name of
third party]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know of the contract?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] intend to cause [name of third party] to
breach the contract?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant]’s conduct cause [name of third party] to
breach the contract?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
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[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2200, Inducing Breach of Contract.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
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VF-2200 ECONOMIC INTERFERENCE
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2201. Intentional Interference With Contractual Relations
We answer the questions submitted to us as follows:
1. Was there a contract between [name of plaintiff] and [name of
third party]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know of the contract?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant]’s conduct prevent performance or make
performance more expensive or difficult?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [intend to disrupt the performance of this
contract/ [or] know that disruption of performance was certain or
substantially certain to occur]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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VF-2201 ECONOMIC INTERFERENCE
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 2201, Intentional Interference With
Contractual Relations—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
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ECONOMIC INTERFERENCE VF-2201
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2202. Intentional Interference With Prospective Economic
Relations
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of third party] have an economic
relationship that probably would have resulted in an economic
benefit to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know of the relationship?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] engage in [specify conduct determined by
the court to be wrongful if proved]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. By engaging in this conduct, did [name of defendant] [intend to
disrupt the relationship/ [or] know that disruption of the
relationship was certain or substantially certain to occur]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the relationship disrupted?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
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ECONOMIC INTERFERENCE VF-2202
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2202, Intentional Interference With
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VF-2202 ECONOMIC INTERFERENCE
Prospective Economic Relations—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2203. Negligent Interference With Prospective Economic
Relations
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of third party] have an economic
relationship that probably would have resulted in an economic
benefit to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know or should [he/she/nonbinary
pronoun/it] have known of the relationship?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know or should [he/she/nonbinary
pronoun/it] have known that this relationship would be disrupted
if [he/she/nonbinary pronoun/it] failed to act with reasonable care?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] fail to act with reasonable care?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] engage in wrongful conduct through
[insert grounds for wrongfulness]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Was the relationship disrupted?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s wrongful conduct a substantial factor
in causing harm to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
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ECONOMIC INTERFERENCE VF-2203
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2204, Negligent Interference With
Prospective Economic Relations.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2204–VF-2299. Reserved for Future Use
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INSURANCE LITIGATION
2300. Breach of Contractual Duty to Pay a Covered Claim—Essential Factual
Elements
2301. Breach of Insurance Binder—Essential Factual Elements
2302. Breach of Contract for Temporary Life Insurance—Essential Factual
Elements
2303. Affirmative Defense—Insurance Policy Exclusion
2304. Exception to Insurance Policy Exclusion—Burden of Proof
2305. Lost or Destroyed Insurance Policy
2306. Covered and Excluded Risks—Predominant Cause of Loss
2307. Insurance Agency Relationship Disputed
2308. Affirmative Defense—Misrepresentation or Concealment in Insurance
Application
2309. Termination of Insurance Policy for Fraudulent Claim
2310–2319. Reserved for Future Use
2320. Affirmative Defense—Failure to Provide Timely Notice
2321. Affirmative Defense—Insured’s Breach of Duty to Cooperate in Defense
2322. Affirmative Defense—Insured’s Voluntary Payment
2323–2329. Reserved for Future Use
2330. Implied Obligation of Good Faith and Fair Dealing Explained
2331. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure
or Delay in Payment (First Party)—Essential Factual Elements
2332. Bad Faith (First Party)—Failure to Properly Investigate Claim—Essential
Factual Elements
2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of
Rights—Essential Factual Elements
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable Settlement Demand
Within Liability Policy Limits—Essential Factual Elements
2335. Bad Faith—Advice of Counsel
2336. Bad Faith (Third Party)—Unreasonable Failure to Defend—Essential Factual
Elements
2337. Factors to Consider in Evaluating Insurer’s Conduct
2338–2349. Reserved for Future Use
2350. Damages for Bad Faith
2351. Insurer’s Claim for Reimbursement of Costs of Defense of Uncovered
Claims
2352–2359. Reserved for Future Use
2360. Judgment Creditor’s Action Against Insurer—Essential Factual Elements
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2361. Negligent Failure to Obtain Insurance Coverage—Essential Factual Elements
2362–2399. Reserved for Future Use
VF-2300. Breach of Contractual Duty to Pay a Covered Claim
VF-2301. Breach of the Implied Obligation of Good Faith and Fair
Dealing—Failure or Delay in Payment
VF-2302. Reserved for Future Use
VF-2303. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights
VF-2304–VF-2399. Reserved for Future Use
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2300. Breach of Contractual Duty to Pay a Covered
Claim—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached its duty to
pay [him/her/nonbinary pronoun/it] for a loss covered under an insurance
policy. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] suffered a loss, [all or part of] which was
covered under an insurance policy with [name of defendant];
2. That [name of defendant] was notified of the loss [as required by
the policy]; and
3. The amount of the covered loss that [name of defendant] failed to
pay.
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction is intended for first party coverage claims. Use the bracketed
language in element 2 if the jury is required to resolve a factual dispute over
whether the manner in which the insurer received notice conformed to the policy
requirements for notice. For a claim arising under an insurance binder rather than an
issued policy, see CACI No. 2301, Breach of Insurance Binder—Essential Factual
Elements. If the policy at issue has been lost or destroyed, read CACI No. 2305,
Lost or Destroyed Insurance Policy. For instructions on general breach of contract
issues, see the Contracts series (CACI No. 300 et seq.).
Sources and Authority
• “Wrongful failure to provide coverage or defend a claim is a breach of contract.”
(Isaacson v. California Insurance Guarantee Assn. (1988) 44 Cal.3d 775, 791
[244 Cal.Rptr. 655, 750 P.2d 297].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-D, Filing
Considerations, ¶¶ 15:52, 15:924 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) General
Principles of Contract and Bad Faith Actions, §§ 24.2, 24.23
6 Levy et al., California Torts, Ch. 82, Claims and Disputes Under Insurance
Policies, § 82.50[2][c] (Matthew Bender)
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26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.83, 120.90, 120.115
(Matthew Bender)
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2301. Breach of Insurance Binder—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached its duty to
pay [him/her/nonbinary pronoun/it] for a loss or liability covered under a
temporary insurance contract called an insurance binder. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] or its authorized agent agreed, orally or
in writing, to provide [name of plaintiff] with an insurance binder;
2. That [name of plaintiff] [paid/was obligated to pay] for the
insurance binder [or that payment was waived];
3. That [name of plaintiff] suffered a loss during the time the
insurance binder was in effect;
4. That [all or part of] the loss was covered under the [insurance
binder] [terms of the insurance policy [name of defendant] would
have issued to [name of plaintiff]];
5. That [name of defendant] was notified of the loss [as required by
the insurance binder]; and
6. The amount of the covered loss or liability that [name of
defendant] failed to pay.
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction is intended for an alleged breach of a contract of temporary
insurance coverage. The court must interpret as a matter of law whether an ordinary
person in the applicant’s circumstances would conclude, based on the language of
the application, that coverage began immediately. Do not use this instruction unless
the court has decided this issue.
Use bracketed language in element 5 if the jury is required to resolve a factual
dispute over whether the manner in which the insurer received notice conformed to
the policy requirements for notice. Element 4 should be modified if there is an issue
regarding whether the insurance company’s agent made oral statements at variance
with the policy language.
Note that the statutory requirements for a “binder” under Insurance Code section
382.5 do not apply to life or disability insurance, for insurance of any kind in the
amount of $1 million or more, or to an oral binder (see Ins. Code, § 382.5(a)).
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Sources and Authority
• Binders. Insurance Code section 382.5.
• Cancelation of Temporary Insurance. Insurance Code section 481.1.
• “Under California law, a contract of temporary insurance may arise from
completion of an application for insurance and payment of the first premium if
the language of the application would lead an ordinary lay person to conclude
that coverage was immediate.” (Ahern v. Dillenback (1991) 1 Cal.App.4th 36, 47
[1 Cal.Rptr.2d 339].)
• “[A] binder is an independent contract, separate and distinct from the permanent
insurance policy. It is intended to give temporary protection pending the
investigation of the risk by the insurer and until issuance of a formal policy or
rejection of the insurance application by the insurer.” (Ahern, supra, 1
Cal.App.4th at p. 48.)
• “[P]racticality dictates that a temporary insurance binder issued upon an
application for insurance cannot contain all of the details and terms of the
proposed insurance contract. . . . [I]nsurance binders are adequate if they
indicate the subject matter, the coverage period, the rate and the amount of
insurance. (National Emblem Insurance Co. v. Rios (1969) 275 Cal.App.2d 70,
76 [79 Cal.Rptr. 583], internal citations omitted.)
• “Whether or not a valid binder exists is a question of fact insofar as a finding
comprehends issues relating to the credibility of witnesses or the weight of the
evidence, but a question of law insofar as a finding embraces a conclusion that
such factual elements do not constitute a valid oral binder.” (Spott Electrical Co.
v. Industrial Indemnity Co. (1973) 30 Cal.App.3d 797, 805 [106 Cal.Rptr. 710],
internal citations omitted.)
• “ ‘For the sake of convenience, contracts of insurance sometimes exist in two
forms: (1) A preliminary contract intended to protect the applicant pending
investigation of the risk by the company or until the policy can be properly
issued. (2) The final contract or policy itself. . . . An agent possessing authority
to bind the company by contracts of insurance has authority to bind it by a
preliminary or temporary contract of insurance. . . .’ This preliminary contract is
sometimes called ‘cover note’ or ‘binder.’ . . . ‘A valid temporary or preliminary
contract of present insurance may be made orally, or it may be partly in parol
and partly in writing.’ ” (Parlier Fruit Co. v. Fireman’s Fund Insurance Co.
(1957) 151 Cal.App.2d 6, 19–20 [311 P.2d 62], internal quotation marks and
citation omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 54, 55
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 2-D, When
Insurance Effective; Coverage of Losses Before Policy Issued, ¶¶ 2:101–2:137 (The
Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
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Determining Whether Enforceable Obligation Exists, §§ 5.17–5.20
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies,
§ 9.06[1]–[7] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.15 (Matthew
Bender)
11 California Legal Forms: Transaction Guide, Ch. 26A, Title Insurance, §§ 26A.15,
26A.220 (Matthew Bender)
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2302. Breach of Contract for Temporary Life Insurance—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] breached an agreement
to pay life insurance benefits. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] or its authorized agent received [name of
decedent]’s application for life insurance;
2. That [name of decedent] paid the first insurance premium;
3. That [name of decedent] died [on/after/before] [insert relevant
date]; and
4. The amount of the insurance benefits that [name of defendant]
failed to pay.
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction is intended for an alleged breach of a contract of temporary life
insurance coverage. The court must interpret as a matter of law whether an ordinary
person in the applicant’s circumstances would conclude, based on the language of
the application, that coverage began immediately. Do not use this instruction unless
the court has decided this issue.
Sources and Authority
• Death of Insured Before Issuance of Policy. Insurance Code section 10115.
• “We are of the view that a contract of insurance arose upon defendant’s receipt
of the completed application and the first premium payment. . . . The
understanding of an ordinary person is the standard [that] must be used in
construing the contract, and such a person upon reading the application would
believe that he would secure the benefit of immediate coverage by paying the
premium in advance of delivery of the policy.” (Ransom v. The Penn Mutual Life
Insurance Co. (1954) 43 Cal.2d 420, 425 [274 P.2d 633].)
• “[A]n insurance company is not precluded from imposing conditions precedent
to the effectiveness of insurance coverage despite the advance payment of the
first premium. However, . . . any such condition must be stated in conspicuous,
unambiguous and unequivocal language which an ordinary layman can
understand.” (Thompson v. Occidental Life Insurance Co. of California (1973) 9
Cal.3d 904, 912 [109 Cal.Rptr. 473, 513 P.2d 353].)
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• Temporary life insurance coverage “is not terminated until the applicant receives
from the insurer both a notice of the rejection of his application and a refund of
his premium.” (Smith v. Westland Life Insurance Co. (1975) 15 Cal.3d 111, 120
[123 Cal.Rptr. 649, 539 P.2d 433].)
• “Under California law, a contract of temporary insurance may arise from
completion of an application for insurance and payment of the first premium if
the language of the application would lead an ordinary lay person to conclude
that coverage was immediate.” (Ahern v. Dillenback (1991) 1 Cal.App.4th 36, 47
[1 Cal.Rptr.2d 339] [automobile insurance].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 54–56
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 2-D, When
Insurance Effective; Coverage of Losses Before Policy Issued, ¶¶ 2:134–2:137,
6:428–6:448 (The Rutter Group)
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies, § 9.07
(Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.19–120.20
(Matthew Bender)
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2303. Affirmative Defense—Insurance Policy Exclusion
[Name of defendant] claims that [name of plaintiff]’s [liability/loss] is not
covered because it is specifically excluded under the policy. To succeed,
[name of defendant] must prove that [name of plaintiff]’s [liability/loss]
[arises out of/is based on/occurred because of] [state exclusion under the
policy]. This exclusion applies if [set forth disputed factual issues that jury
must determine].
New September 2003; Revised October 2008, June 2014, May 2021
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
Give this instruction if the court has determined that an exclusionary clause in an
insurance policy might apply to foreclose coverage, but the applicability turns on a
question of fact. Identify with specificity the disputed factual issues the jury must
resolve to determine whether the exclusion applies.
This instruction can be used in cases involving either a third party liability or a first
party loss policy. Use CACI No. 2306, Covered and Excluded Risks—Predominant
Cause of Loss, rather than this instruction, if a first party loss policy is involved and
there is evidence that a loss was caused by both covered and excluded perils.
Sources and Authority
• “The burden of bringing itself within any exculpatory clause contained in the
policy is on the insurer.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d
865, 880 [151 Cal.Rptr. 285, 587 P.2d 1098].)
• “The burden is on an insured to establish that the occurrence forming the basis
of its claim is within the basic scope of insurance coverage. And, once an
insured has made this showing, the burden is on the insurer to prove the claim is
specifically excluded.” (Aydin Corp. v. First State Insurance Co. (1998) 18
Cal.4th 1183, 1188 [77 Cal.Rptr.2d 537, 959 P.2d 1213].)
• Once the insurer proves that the specific exclusion applies, the insured “should
bear the burden of establishing the exception because ‘its effect is to reinstate
coverage that the exclusionary language otherwise bars.’ ” (Aydin Corp., supra,
18 Cal.4th at p. 1188.)
• “The interpretation of an exclusionary clause is an issue of law subject to this
court’s independent determination.” (Marquez Knolls Property Owners Assn.,
Inc. v. Executive Risk Indemnity, Inc. (2007) 153 Cal.App.4th 228, 233 [62
Cal.Rptr.3d 510].)
• “[T]he question of what caused the loss is generally a question of fact, and the
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loss is not covered if the covered risk was only a remote cause of the loss, or
the excluded risk was the efficient proximate, or predominate cause.” (State
Farm Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131–1132
[2 Cal.Rptr.2d 183, 820 P.2d 285].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 85, 88
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial,
¶¶ 15:911–15:912 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63
4 California Insurance Law and Practice, Ch. 41, Liability Insurance in General,
§ 41.11 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.502
(Matthew Bender)
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2304. Exception to Insurance Policy Exclusion—Burden of Proof
[Name of plaintiff] claims that [his/her/nonbinary pronoun/its] [liability/
loss] is covered under an exception to a specific coverage exclusion under
the policy. To establish this coverage, [name of plaintiff] must prove that
[his/her/nonbinary pronoun/its] [liability/loss] [arises out of/is based on/
occurred because] [state exception to policy exclusion].
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
Use this instruction only if the insurer is asserting that the insured’s claim is subject
to an exclusion.
Sources and Authority
• “The burden is on an insured to establish that the occurrence forming the basis
of its claim is within the basic scope of insurance coverage. And, once an
insured has made this showing, the burden is on the insurer to prove the claim is
specifically excluded.” (Aydin Corp. v. First State Insurance Co. (1998) 18
Cal.4th 1183, 1188 [77 Cal.Rptr.2d 537, 959 P.2d 1213], internal citations
omitted.)
• Once the insurer proves that the specific exclusion applies, the insured “should
bear the burden of establishing the exception because ‘its effect is to reinstate
coverage that the exclusionary language otherwise bars.’ ” (Aydin Corp., supra,
18 Cal.4th at p. 1188.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial
¶¶ 15:913–15:915.5 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.40, 120.42
(Matthew Bender)
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2305. Lost or Destroyed Insurance Policy
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was covered
under an insurance policy that was lost or destroyed. To establish
coverage under a lost policy, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] was insured under the lost policy during
the period in question; and
2. That the terms of the policy included the following:
a. [describe each policy provision essential to the claimed coverage].
[Name of plaintiff] is not required to prove the exact words of the lost
policy, but only the substance of the policy’s terms essential to [his/her/
nonbinary pronoun/its] claim for insurance benefits.
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
Read this instruction in conjunction with CACI No. 2300, Breach of Contractual
Duty to Pay a Covered Claim—Essential Factual Elements. Whether the terms of a
lost policy must be established by a heightened degree of proof appears to be an
open issue. The Supreme Court in Dart Industries, Inc. v. Commercial Union
Insurance Co. (2002) 28 Cal.4th 1059 [124 Cal.Rptr.2d 142, 52 P.3d 79], expressly
declined to address the issue of the necessary degree of proof. (Id at p. 1072, fn. 4.)
This instruction is intended for use in cases where the plaintiff insured claims
coverage for a loss under an insurance policy that was lost or destroyed without
fraudulent intent on the part of the insured. The admission of oral testimony of the
contents of a lost document requires the court to determine certain preliminary facts:
(1) the proponent does not have possession or control of a copy of the policy; and
(2) the policy was lost or destroyed without fraudulent intent on the part of the
proponent. (Evid. Code, §§ 402(b), 1521, 1523(b).)
Sources and Authority
• Proof of Content of Writing. Evidence Code section 1521(a).
• Oral Testimony of Content of Writing. Evidence Code section 1523(b).
• “In an action on an insurance policy that has not been lost or destroyed, it is
well settled that ‘[t]he burden is on an insured to establish that the occurrence
forming the basis of its claim is within the basic scope of insurance coverage.
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And, once an insured has made this showing, the burden is on the insurer to
prove the claim is specifically excluded.’ . . . [¶] We see no reason not to apply
this rule to a policy that has been lost or destroyed without fraudulent intent on
the part of the insured. Thus, the claimant has the burden of proving (1) the fact
that he or she was insured under the lost policy during the period in issue, and
(2) the substance of each policy provision essential to the claim for relief, i.e.,
essential to the particular coverage that the insured claims. Which provisions
those are will vary from case to case; the decisions often refer to them simply as
the material terms of the lost policy. In turn, the insurer has the burden of
proving the substance of any policy provision ‘essential to the . . . defense,’ i.e.,
any provision that functions to defeat the insured’s claim. Those provisions, too,
will be case specific.” (Dart Industries, Inc., supra, 28 Cal.4th at p. 1068,
internal citations and footnotes omitted.)
• “A corollary of the rule that the contents of lost documents may be proved by
secondary evidence is that the law does not require the contents of such
documents be proved verbatim.” (Dart Industries, Inc., supra, 28 Cal.4th at p.
1069.)
• “The rule . . . for the admission of secondary evidence of a lost paper, requires
‘that a bona fide and diligent search has been unsuccessfully made for it in the
place where it was most likely to be found;’ and further, ‘the party is expected to
show that he has in good faith exhausted in a reasonable degree all the sources
of information and means of discovery which the nature of the case would
naturally suggest, and which were accessible to him.’ ” (Dart Industries, Inc.,
supra, 28 Cal.4th at p. 1068, internal citation omitted.)
• “No fixed rule as to the necessary proof to establish loss [of a written
instrument], or what constitutes reasonable search, can be formulated. . . . The
sole object of such proof is to raise a reasonable presumption merely that the
instrument is lost, and this is a preliminary inquiry addressed to the discretion of
the judge.” (Kenniff v. Caulfield (1903) 140 Cal. 34, 41 [73 P. 803].)
• “Preliminary proof of the loss or destruction is required and it is committed to
the trial court’s discretion to determine whether the evidence so offered is or is
not sufficient.” (Guardianship of Levy (1955) 137 Cal.App.2d 237, 249 [290 P.2d
320].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 60–62, 71–72,
75, 77
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial,
¶¶ 15:978–15:994 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, § 8.8
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.42 (Matthew
Bender)
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2306. Covered and Excluded Risks—Predominant Cause of Loss
You have heard evidence that the claimed loss was caused by a
combination of covered and excluded risks under the insurance policy.
When a loss is caused by a combination of covered and excluded risks
under the policy, the loss is covered only if the most important or
predominant cause is a covered risk.
[[Name of defendant] claims that [name of plaintiff]’s loss is not covered
because the loss was caused by a risk excluded under the policy. To
succeed, [name of defendant] must prove that the most important or
predominant cause of the loss was [describe excluded peril or event],
which is a risk excluded under the policy.]
[or]
[[Name of plaintiff] claims that the loss was caused by a risk covered
under the policy. To succeed, [name of plaintiff] must prove that the most
important or predominant cause of the loss was [describe covered peril or
event], which is a risk covered under the policy.]
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction in intended for use in first party property insurance cases where
there is evidence that a loss was caused by both covered and excluded perils. In
most cases the court will determine as a question of law what perils are covered and
excluded under the policy.
Depending on the type of insurance at issue, the court must select the bracketed
paragraph that presents the correct burden of proof. For all-risk homeowner’s
policies, for example, once the insured establishes basic coverage, the insurer bears
the burden of proving the loss was caused by an excluded peril. In contrast, for
“named perils” policies (for example, fire insurance) the insured bears the burden of
proving the loss was caused by the specified peril. (See Strubble v. United Services
Automobile Assn. (1973) 35 Cal.App.3d 498, 504 [110 Cal.Rptr. 828].)
Sources and Authority
• Remote Cause of Loss. Insurance Code section 530.
• Excluded Peril: But-For Causation. Insurance Code section 532.
• “[In] determining whether a loss is within an exception in a policy, where there
is a concurrence of different causes, the efficient cause—the one that sets others
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in motion—is the cause to which the loss is to be attributed, though the other
causes may follow it, and operate more immediately in producing the disaster.”
(Sabella v. Wisler (1963) 59 Cal.2d 21, 31–32 [27 Cal.Rptr. 689, 377 P.2d 889],
internal quotation marks and citation omitted.)
• “Sabella defined ‘efficient proximate cause’ alternatively as the ‘one that sets
others in motion,’ and as ‘the predominating or moving efficient cause.’ We use
the term ‘efficient proximate cause’ (meaning predominating cause) when
referring to the Sabella analysis because we believe the phrase ‘moving cause’
can be misconstrued to deny coverage erroneously, particularly when it is
understood literally to mean the ‘triggering’ cause.” (Garvey v. State Farm Fire
& Casualty Co. (1989) 48 Cal.3d 395, 403 [257 Cal.Rptr. 292, 770 P.2d 704],
internal citations omitted.)
• “The efficient proximate cause referred to in Sabella has also been called the
predominant cause or the most important cause of the loss. ‘By focusing the
causal inquiry on the most important cause of a loss, the efficient proximate
cause doctrine creates a “workable rule of coverage that provides a fair result
within the reasonable expectations of both the insured and the insurer.” ’ ”
(Vardanyan v. AMCO Ins. Co. (2015) 243 Cal.App.4th 779, 787 [197 Cal.Rptr.3d
195], internal citation omitted.)
• “[T]he ‘cause’ of loss in the context of a property insurance contract is totally
different from that in a liability policy. This distinction is critical to the
resolution of losses involving multiple causes. Frequently property losses occur
which involve more than one peril that might be considered legally
significant. . . . ‘The task becomes one of identifying the most important cause
of the loss and attributing the loss to that cause.’ [¶] On the other hand, the right
to coverage in the third party liability insurance context draws on traditional tort
concepts of fault, proximate cause and duty.” (Garvey, supra, 48 Cal.3d at pp.
406–407, internal quotation marks, italics, and citations omitted.)
• “[I]n an action upon an all-risks policy (unlike a specific peril policy), the
insured does not have to prove that the peril proximately causing his loss was
covered by the policy. This is because the policy covers all risks save for those
risks specifically excluded by the policy. The insurer, though, since it is denying
liability upon the policy, must prove the policy’s noncoverage of the insured’s
loss—that is, that the insured’s loss was proximately caused by a peril
specifically excluded from the coverage of the policy.” (Vardanyan, supra, 243
Cal.App.4th at pp. 796−797, original italics.)
• “A policy cannot extend coverage for a specified peril, then exclude coverage for
a loss caused by a combination of the covered peril and an excluded peril,
without regard to whether the covered peril was the predominant or efficient
proximate cause of the loss. Other Coverage 9 identifies the perils that are
covered when the loss involves collapse. If any other peril contributes to the
loss, whether the loss is covered or excluded depends upon which peril is the
predominant cause of the loss. To the extent the term ‘caused only by one or
more’ of the listed perils can be construed to mean the contribution of any
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unlisted peril, in any way and to any degree, would result in the loss being
excluded from coverage, the provision is an unenforceable attempt to contract
around the efficient proximate cause doctrine. ¶ Accordingly, CACI No. 2306
. . . was the correct instruction to give to the jury.” Vardanyan, supra, 243
Cal.App.4th at p. 796.)
• “[T]he scope of coverage under an all-risk homeowner’s policy includes all risks
except those specifically excluded by the policy. When a loss is caused by a
combination of a covered and specifically excluded risks, the loss is covered if
the covered risk was the efficient proximate cause of the loss. . . . [T]he
question of what caused the loss is generally a question of fact, and the loss is
not covered if the covered risk was only a remote cause of the loss, or the
excluded risk was the efficient proximate, or predominate, cause.” (State Farm
Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131–1132 [2
Cal.Rptr.2d 183, 820 P.2d 285], internal citation omitted.)
• “[A]n insurer is not absolutely prohibited from drafting and enforcing policy
provisions that provide or leave intact coverage for some, but not all,
manifestations of a particular peril. This is, in fact, an everyday practice that
normally raises no questions regarding section 530 or the efficient proximate
cause doctrine.” (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747,
759 [27 Cal.Rptr.3d 648, 110 P.3d 903].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 6A-E, First
Party Coverages—Causation Principles, ¶¶ 6:134–6:143, 6:253 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.42
3 California Insurance Law & Practice, Ch. 9, Homeowners and Related Policies,
§ 36.42 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.113
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.50 (Matthew
Bender)
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2307. Insurance Agency Relationship Disputed
[Name of plaintiff] claims that [name of agent] was [name of defendant]’s
agent and that [name of defendant] is therefore [responsible for/bound by]
[name of agent]’s [conduct/ representations].
If [name of plaintiff] proves that [name of defendant] gave [name of agent]
the [authority/apparent authority] to act on behalf of [name of defendant],
then [name of agent] was [name of defendant]’s agent. This authority may
be shown by words or may be implied by the parties’ conduct. This
authority cannot be shown by the words of [name of agent] alone.
[In some circumstances, an individual can be the agent of both the
insured and the insurance company. [Name of plaintiff] claims that [name
of agent] was [[name of defendant]/[name of plaintiff]]’s agent for the
purpose of [describe limited agency; e.g., “collecting insurance payments”]
and therefore [describe dispute; e.g., “the insurer received plaintiff’s
payment”]. [Name of defendant] claims that [name of agent] was [[name of
defendant]/[name of plaintiff]]’s agent for the purpose of [describe limited
agency] and therefore [describe dispute].]
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction must be modified based on the evidence presented and theories of
liability in the case. The distinction between an agent and a broker relationship may
be crucial in determining, for example, whether an insurance salesperson’s
representations bind the insurer, or whether the insurance salesperson has assumed a
specific duty to the insured.
If ostensible agency is an issue, the court may modify and give CACI No. 3709,
Ostensible Agent, in the Vicarious Responsibility series.
Sources and Authority
• “Insurance Agent” Defined. Insurance Code section 31.
• “Insurance Broker” Defined. Insurance Code section 33.
• Actual or Ostensible Authority of Agent. Civil Code section 2315.
• “An individual cannot act as an insurance agent in California without a valid
license issued by the commissioner of insurance. In addition to possessing a
license, an insurance agent must be authorized by an insurance carrier to transact
insurance business on the carrier’s behalf. This authorization must be evidenced
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by a notice of agency appointment on file with the Department of Insurance. An
agent is generally not limited in the number of agency appointments that he or
she may have; thus, an agent may solicit business on behalf of a variety of
different insurance carriers, and still technically be an agent of each of those
carriers.” (Loehr v. Great Republic Insurance Co. (1990) 226 Cal.App.3d 727,
732–733 [276 Cal.Rptr. 667], internal citations omitted.)
• “An agent’s primary duty is to represent the insurer in transactions with
insurance applicants and policyholders. Each company the agent represents must
file a notice of appointment with the DOI’s commissioner. Because an agent
represents the insurer, an agent’s representations to an insured regarding
coverage are treated as representations by the insurer. Generally, some hallmarks
of an insurance agent (as opposed to a broker) are licensure, notice of
appointment as an agent and the power to bind the insurer. In contrast, a
broker’s primary duty is to represent the applicant/insured, and his or her actions
are not generally binding on the insurer. ‘Put quite simply, insurance brokers,
with no binding authority, are not agents of insurance companies, but are rather
independent contractors . . . .’ Of course, these labels alone are not
determinative of the relationship, and the specific facts of each transaction must
be reviewed. The general laws of agency inform any such review.” (Douglas v.
Fidelity National Ins. Co. (2014) 229 Cal.App.4th 392, 410–411 [177
Cal.Rptr.3d 271], original italics, internal citations omitted.)
• “[S]tatutes defining ‘broker’ are not determinative of the actual relationship in a
particular case. The actual relationship is determined by what the parties do and
say, not by the name they are called.” (Maloney v. Rhode Island Insurance Co.
(1953) 115 Cal.App.2d 238, 245 [251 P.2d 1027], internal citations omitted.)
• “While we note many similarities in the services performed and the monetary
functions of agents and brokers, there is a more fundamental legal distinction
between insurance agents and brokers. Put quite simply, insurance brokers, with
no binding authority, are not agents of insurance companies, but are rather
independent contractors . . . .” (Marsh & McLennan of California, Inc. v. City of
Los Angeles (1976) 62 Cal.App.3d 108, 118 [132 Cal.Rptr. 796].)
• “Although an insurance broker is ordinarily the agent of the insured and not of
the insurer, he may become the agent of the insurer as well as for the insured.”
(Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201,
213 [137 Cal.Rptr. 118], internal citations omitted.)
• “When the broker accepts the policy from the insurer and the premium from the
assured, he has elected to act for the insurer to deliver the policy and to collect
the premium.” (Maloney, supra, 115 Cal.App.2d at p. 244.)
• “Generally speaking, a person may do by agent any act which he might do
himself. An agency is either actual or ostensible. ‘An agency is ostensible when
the principal intentionally, or by want of ordinary care, causes a third person to
believe another to be his agent who is not really employed by him.’ To establish
ostensible authority in an agent, it must be shown the principal, intentionally or
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by want of ordinary care has caused or allowed a third person to believe the
agent possesses such authority.” (Preis v. American Indemnity Co. (1990) 220
Cal.App.3d 752, 761 [269 Cal.Rptr. 617], internal citations omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 2A, Agents and
Brokers, ¶¶ 2:12–2:24, 2:31–2:43 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Determining Whether Enforceable Obligation Exists, §§ 5.4–5.8
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Actions
Against Agents and Brokers, §§ 29.2–29.5
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies, § 9.02
(Matthew Bender)
5 California Insurance Law & Practice, Ch. 61, Operating Requirements of Agents
and Brokers, § 61.01[4] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.40 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.114
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.18, 120.110,
120.170, 120.383, 120.392, 120.403 (Matthew Bender)
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2308. Affirmative Defense—Misrepresentation or Concealment in
Insurance Application
[Name of insurer] claims that no insurance contract was created because
[name of insured] [concealed an important fact/made a false
representation] in [his/her/nonbinary pronoun/its] application for
insurance. To establish this defense, [name of insurer] must prove all of
the following:
1. That [name of insured] submitted an application for insurance
with [name of insurer];
2. That in the application for insurance [name of insured], whether
intentionally or unintentionally, [failed to state/represented] that
[insert omission or alleged misrepresentation];
3. [That the application asked for that information;]
4. That [name of insured] knew that [specify facts that were
misrepresented or omitted]; and
5. That [name of insurer] would not have issued the insurance policy
if [name of insured] had stated the true facts in the application.
New September 2003; Revised April 2004, October 2004, June 2015, May 2020
Directions for Use
This instruction presents an insurer’s affirmative defense to a claim for coverage.
The defense is based on a misrepresentation or omission made by the insured in the
application for the insurance. (See Douglas v. Fid. Nat’l Ins. Co. (2014) 229
Cal.App.4th 392, 408 [177 Cal.Rptr.3d 271].) If the policy at issue is a standard fire
insurance policy, replace “intentionally or unintentionally” in element 2 with
“willfully.” (See Ins. Code, § 2071.) Otherwise, the insurer is not required to prove
an intent to deceive; negligence or inadvertence is enough if the misrepresentation
or omission is material. (Douglas, supra, 229 Cal.App.4th at p. 408.) Element 5
expresses materiality.
Element 3 applies only if plaintiff omitted information, not if the plaintiff
misrepresented information.
While no intent to mislead is required, the insured must know the facts that
constitute the omission or misrepresentation (see element 4). For example, if the
application does not disclose that property on which insurance is sought is being
used commercially, the applicant must have known that the property is being used
commercially. (See Ins. Code, § 332.) It is not a defense, however, if the insured
gave incorrect or incomplete responses on the application because the insured failed
to appreciate the significance of some information known to him or her. (See
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Thompson v. Occidental Life Insurance Co. of California (1973) 9 Cal.3d 904, 916
[109 Cal.Rptr. 473, 513 P.2d 353].)
If it is alleged that omission occurred in circumstances other than a written
application, this instruction should be modified accordingly.
Sources and Authority
• Rescission of Contract. Civil Code section 1689(b)(1).
• Time of Insurer’s Rescission of Policy. Insurance Code section 650.
• Concealment by Failure to Communicate. Insurance Code section 330.
• Concealment Entitles Insurer to Rescind. Insurance Code section 331.
• Duty to Communicate in Good Faith. Insurance Code section 332.
• Materiality. Insurance Code section 334.
• Intentional Omission of Information Tending to Prove Falsity. Insurance Code
section 338.
• False Representation: Time for Rescission. Insurance Code section 359.
• “It is well established that material misrepresentations or concealment of
material facts in an application for insurance entitle an insurer to rescind an
insurance policy, even if the misrepresentations are not intentionally made.
Additionally, ‘[a] misrepresentation or concealment of a material fact in an
insurance application also establishes a complete defense in an action on the
policy. [Citations.] As with rescission, an insurer seeking to invalidate a policy
based on a material misrepresentation or concealment as a defense need not
show an intent to deceive. [Citations.]’ ” (Douglas, supra, 229 Cal.App.4th at p.
408, internal citations omitted.)
• “When the [automobile] insurer fails . . . to conduct . . . a reasonable
investigation [of insurability] it cannot assert . . . a right of rescission” under
section 650 of the Insurance Code as an affirmative defense to an action by an
injured third party. (Barrera v. State Farm Mutual Automobile Insurance Co.
(1969) 71 Cal.2d 659, 678 [79 Cal.Rptr. 106, 456 P.2d 674].)
• “[A]n insurer has a right to know all that the applicant for insurance knows
regarding the state of his health and medical history. Material misrepresentation
or concealment of such facts [is] grounds for rescission of the policy, and an
actual intent to deceive need not be shown. Materiality is determined solely by
the probable and reasonable effect [that] truthful answers would have had upon
the insurer. The fact that the insurer has demanded answers to specific questions
in an application for insurance is in itself usually sufficient to establish
materiality as a matter of law.” (Thompson, supra, 9 Cal.3d at pp. 915–916,
internal citations omitted.)
• “[A]lthough an insurer generally ‘has the right to rely on the applicant’s answers
without verifying their accuracy[,] . . . [¶] . . . [t]he insurer cannot rely on
answers given where the applicant-insured was misled by vague or ambiguous
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questions.’ ” (Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 54
[220 Cal.Rptr.3d 170], original italics.)
• “[I]f the applicant for insurance had no present knowledge of the facts sought, or
failed to appreciate the significance of information related to him, his incorrect
or incomplete responses would not constitute grounds for rescission. Moreover,
‘[questions] concerning illness or disease do not relate to minor indispositions
but are to be construed as referring to serious ailments which undermine the
general health.’ Finally, as the misrepresentation must be a material one,
‘incorrect answer on an insurance application does not give rise to the defense of
fraud where the true facts, if known, would not have made the contract less
desirable to the insurer.’ And the trier of fact is not required to believe the ‘post
mortem’ testimony of an insurer’s agents that insurance would have been refused
had the true facts been disclosed.” (Thompson, supra, 9 Cal.3d at p. 916, internal
citations omitted.)
• “[T]he burden of proving misrepresentation [for purposes of rescission] rests
upon the insurer.” (Thompson, supra, 9 Cal.3d at p. 919.)
• “To prevail, the insurer must prove that the insured made a material ‘false
representation’ in an insurance application. ‘A representation is false when the
facts fail to correspond with its assertions or stipulations.’ The test for
materiality of the misrepresentation or concealment is the same as it is for
rescission, ‘a misrepresentation or concealment is material if a truthful statement
would have affected the insurer’s underwriting decision.’ ” (Douglas, supra, 229
Cal.App.4th at p. 408, internal citations omitted.)
• “The materiality of a representation made in an application for a contract of
insurance is determined by a subjective standard (i.e., its effect on the particular
insurer to whom it was made) and rescission will be allowed even though the
misrepresentation was the result of negligence or the product of innocence. On
the other hand, in order to void a policy based upon the insured’s violation of
the standard fraud and concealment clause . . . , the false statement must have
been knowingly and wilfully made with the intent (express or implied) of
deceiving the insurer. The materiality of the statement will be determined by the
objective standard of its effect upon a reasonable insurer.” (Cummings v. Fire
Insurance Exchange (1988) 202 Cal.App.3d 1407, 1415, fn.7 [249 Cal.Rptr.
568], original italics, internal citation omitted.)
• “The insurer is not required to show a causal relationship between the material
misrepresentation or concealment of material fact and the nature of the claim.”
(Duarte, supra, 13 Cal.App.5th at p. 53.)
• “Cancellation and rescission are not synonymous. One is prospective, while the
other is retroactive.” (Fireman’s Fund American Insurance Co. v. Escobedo
(1978) 80 Cal.App.3d 610, 619 [145 Cal.Rptr. 785].)
• “[U]pon a rescission of a policy of insurance, based upon a material concealment
or misrepresentation, all rights of the insured thereunder (except the right to
recover any consideration paid in the purchase of the policy) are
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extinguished . . . .” (Imperial Casualty & Indemnity Co. v. Sogomonian (1988)
198 Cal.App.3d 169, 184 [243 Cal.Rptr. 639].)
• “The consequence of rescission is not only the termination of further liability,
but also the restoration of the parties to their former positions by requiring each
to return whatever consideration has been received. . . . [T]his would require the
refund by [the insurer] of any premiums and the repayment by the defendants of
any proceed advance which they may have received.” (Imperial Casualty &
Indemnity Co., supra, 198 Cal.App.3d at p. 184, internal citation omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 5-F, Rescission
by Insurer, ¶¶ 5:143–5:146, 5:153–5:159.1, 5:160–5:287, 15:241–15:256 (The Rutter
Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Rescission and Reformation, §§ 21.2–21.12, 21.35–21.37
2 California Insurance Law & Practice, Ch. 8, The Insurance Contract, § 8.10[1]
(Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.40 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.18
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.250, 120.251,
120.260 (Matthew Bender)
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2309. Termination of Insurance Policy for Fraudulent Claim
[Name of insurer] claims that [name of insured] [is not entitled to recover
under/is not entitled to benefits under] the insurance policy because [he/
she/nonbinary pronoun] made a false claim. To establish this claim, [name
of insurer] must prove all of the following:
1. That [name of insured] made a claim for insurance benefits under
a policy with [name of insurer];
2. That [name of insured] represented to [name of insurer] that [insert
allegedly false representation];
3. That [name of insured]’s representation was not true;
4. That [name of insured] knew that the representation was not true;
5. That [name of insured] intended that [name of insurer] rely on this
representation in [investigating/paying] [name of insured]’s claim
for insurance benefits; and
6. That the representation that [insert allegedly false representation],
if true, would affect a reasonable insurance company’s
[investigation of/decision to pay] a claim for insurance benefits.
New September 2003
Directions for Use
If the insured’s misrepresentation or concealment in the insurance application is
raised as an affirmative defense by the insurer, this instruction may be modified for
use. The elements of the defense would be the same as stated above.
Sources and Authority
• Rescission of Contract. Civil Code section 1689(b)(1).
• Intentional Omission of Information Tending to Prove Falsity. Insurance Code
section 338.
• False Representation: Time for Rescission. Insurance Code section 359.
• “The materiality of a representation made in an application for a contract of
insurance is determined by a subjective standard (i.e., its effect on the particular
insurer to whom it was made) and rescission will be allowed even though the
misrepresentation was the result of negligence or the product of innocence. On
the other hand, in order to void a policy based upon the insured’s violation of
the standard fraud and concealment clause . . ., the false statement must have
been knowingly and wilfully made with the intent (express or implied) of
deceiving the insurer. The materiality of the statement will be determined by the
objective standard of its effect upon a reasonable insurer.” (Cummings v. Fire
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Insurance Exchange (1988) 202 Cal.App.3d 1407, 1415, fn.7 [249 Cal.Rptr.
568], original italics, internal citation omitted.)
• “The consequence of rescission is not only the termination of further liability,
but also the restoration of the parties to their former positions by requiring each
to return whatever consideration has been received. . . . [T]his would require the
refund by [the insurer] of any premiums and the repayment by the [insureds] of
any proceed advance which they may have received.” (Imperial Casualty &
Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 184 [243 Cal.Rptr.
639], internal citation omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 5-F, Rescission
by Insurer, ¶¶ 5:143–5:146, 5:153–5:159.1, 5:160, 5:249–5:260.5, 15:241–15:256
(The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Rescission and Reformation, §§ 21.2–21.4, 21.35–21.37
2 California Insurance Law & Practice, Ch. 8, The Insurance Contract, § 8.10[1]
(Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.250–120.251
(Matthew Bender)
2310–2319. Reserved for Future Use
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2320. Affirmative Defense—Failure to Provide Timely Notice
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because it did not receive timely
notice of the [lawsuit/[insert other]]. To succeed, [name of defendant] must
prove both of the following:
1. That [name of plaintiff] did not give [name of defendant] notice [or
that [name of defendant] did not receive notice by some other
means] [within the time specified in the policy/within a reasonable
time] of the [lawsuit/[insert other]]; and
2. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to give timely notice.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, with timely notice, it would have [taken steps that would
have substantially reduced or eliminated [name of plaintiff]’s liability] [or]
[settled for a substantially smaller amount].
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction is intended for use by an insurer as a defense to a breach of
contract action based on a third party liability policy. The defense does not apply to
“claims made” policies (see Pacific Employers Insurance Co. v. Superior Court
(1990) 221 Cal.App.3d 1348, 1357–1360 [270 Cal.Rptr. 779]). This instruction also
may be modified for use as a defense to a judgment creditor’s action to recover on a
liability policy.
Sources and Authority
• “The right of an injured party to sue an insurer on the policy after obtaining
judgment against the insured is established by statute. An insurer may assert
defenses based upon a breach by the insured of a condition of the policy such as
a cooperation clause, but the breach cannot be a valid defense unless the insurer
was substantially prejudiced thereby. Similarly, it has been held that prejudice
must be shown with respect to breach of a notice clause.” (Campbell v. Allstate
Insurance Co. (1963) 60 Cal.2d 303, 305–306 [32 Cal.Rptr. 827, 384 P.2d 155],
internal citations omitted.)
• “The burden of establishing prejudice is on the insurance company, and
prejudice is not presumed by delay alone. To establish prejudice, the ‘ “insurer
must show it lost something that would have changed the handling of the
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underlying claim.” ’ ” (Lat v. Farmers New World Life Ins. Co. (2018) 29
Cal.App.5th 191, 196–197 [239 Cal.Rptr.3d 796], internal citations omitted.)
• “[P]rejudice is not shown simply by displaying end results; the probability that
such result could or would have been avoided absent the claimed default or error
must also be explored.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d
865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
• “Prejudice is a question of fact on which the insurer has the burden of proof.
The insured’s delay does not itself satisfy the burden of proof. The insurer
establishes actual and substantial prejudice by proving more than delayed or late
notice. It must show ‘ “a substantial likelihood that, with timely notice, and
notwithstanding a denial of coverage or reservation of rights, it would have
settled the claim for less or taken steps that would have reduced or eliminated
the insured’s liability.” ’ ” (Pitzer College v. Indian Harbor Ins. Co. (2019) 8
Cal.5th 93, 105 [251 Cal.Rptr.3d 701, 447 P.3d 669].)
• “If the insurer asserts that the underlying claim is not a covered occurrence or is
excluded from basic coverage, then earlier notice would only result in earlier
denial of coverage. To establish actual prejudice, the insurer must show a
substantial likelihood that, with timely notice, and notwithstanding a denial of
coverage or reservation of rights, it would have settled the claim for less or
taken steps that would have reduced or eliminated the insured’s liability.”
(Safeco Ins. Co. of America v. Parks (2009) 170 Cal.App.4th 992, 1004 [88
Cal.Rptr.3d 730].)
• “Under the notice prejudice rule, an insurance company may not deny an
insured’s claim under an occurrence policy based on lack of timely notice or
proof of claim unless it can show actual prejudice from the delay. The rule is
based on the rationale that ‘ “[t]he primary and essential part of the contract [is]
insurance coverage, not the procedure for determining liability . . .” [citations],
and that “the notice requirement serves to protect insurers from prejudice, . . .
not . . . to shield them from their contractual obligations” through “a technical
escape-hatch”.’ ” (Lat, supra, 29 Cal.App.5th at p. 196, internal citations
omitted.)
• “[The notice-prejudice rule] does not apply to every time limit on any insurance
policy. [¶] Where the policy provides that special coverage for a particular type
of claim is conditioned on express compliance with a reporting requirement, the
time limit is enforceable without proof of prejudice. Such reporting time limits
often are found in provisions for expanded liability coverage that the insurer
usually does not cover. The insurer makes an exception and extends special
coverage conditioned on compliance with a reporting requirement and other
conditions. The reporting requirement becomes ‘the written notice necessary to
trigger the expanded coverage afforded’ by the special policy provision.”
(Venoco, Inc. v. Gulf Underwriters Ins. Co. (2009) 175 Cal.App.4th 750, 760 [96
Cal.Rptr.3d 409], internal citations omitted.)
• “With respect to notice provisions, one Court of Appeal has explained: ‘[A]n
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“occurrence” policy provides coverage for any acts or omissions that arise
during the policy period even though the claim is made after the policy has
expired.’ . . . [¶] . . . [¶] Occurrence policies were developed to provide
coverage for damage caused by collision, fire, war, and other identifiable
events. . . . Because the occurrence of these events was relatively easy to
ascertain, the insurer was able to ‘conduct a prompt investigation of the incident
. . . .’ . . . Notice provisions contained in such occurrence policies were
‘included to aid the insurer in investigating, settling, and defending claims[.]’
. . . If an insured breaches a notice provision, resulting in substantial prejudice
to the defense, the insurer is relieved of liability.” (Belz v. Clarendon America
Ins. Co. (2007) 158 Cal.App.4th 615, 626 [69 Cal.Rptr.3d 864], internal citation
omitted.)
• “The ‘general rule’ is that an insurer is not bound by a judgment unless it had
notice of the pendency of the action. . . . However, if an insurer denies coverage
to the insured, the insured’s contractual obligation to notify the insurer ceases.”
(Samson v. Transamerica Insurance Co. (1981) 30 Cal.3d 220, 238 [178
Cal.Rptr. 343, 636 P.2d 32], internal citations omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch.15-I, Trial
¶¶ 15:917–15:920 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, §§ 8.24–8.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.65[1]–[9] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.500
(Matthew Bender)
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2321. Affirmative Defense—Insured’s Breach of Duty to Cooperate
in Defense
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because [name of plaintiff] failed
to cooperate in [his/her/nonbinary pronoun/its] defense. To succeed, [name
of defendant] must prove all of the following:
1. That [name of plaintiff] failed to cooperate in the defense of the
lawsuit against [him/her/nonbinary pronoun/it];
2. That [name of defendant] used reasonable efforts to obtain [name
of plaintiff]’s cooperation; and
3. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to cooperate in [his/her/nonbinary pronoun/its] defense.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, if [name of plaintiff] had cooperated, [name of defendant]
would have [taken steps that would have substantially reduced or
eliminated [name of plaintiff]’s liability] [or] [settled for a substantially
smaller amount].
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction is intended for use by an insurer as a defense to a breach of
contract action based on a third party liability policy. This instruction also may be
modified for use as a defense to a judgment creditor’s action to recover on a
liability policy.
Depending on the facts of the case, the second element of this instruction may not
always be necessary.
Sources and Authority
• “The right of an injured party to sue an insurer on the policy after obtaining
judgment against the insured is established by statute. An insurer may assert
defenses based upon a breach by the insured of a condition of the policy such as
a cooperation clause, but the breach cannot be a valid defense unless the insurer
was substantially prejudiced thereby. . . . [¶] The burden of proving that a
breach of a cooperation clause resulted in prejudice is on the insurer.” (Campbell
v. Allstate Insurance Co. (1963) 60 Cal.2d 303, 305–306 [32 Cal.Rptr. 827, 384
P.2d 155], internal citations omitted.)
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• “[W]e apprehend that Campbell stands for these propositions: (1) that breach by
an insured of a cooperation . . . clause may not be asserted by an insurer unless
the insurer was substantially prejudiced thereby; (2) that prejudice is not
presumed as a matter of law from such breach; (3) that the burden of proving
prejudicial breach is on the insurer; and (4) that, although the issue of prejudice
is ordinarily one of fact, it may be established as a matter of law by the facts
proved.” (Northwestern Title Security Co. v. Flack (1970) 6 Cal.App.3d 134, 141
[85 Cal.Rptr. 693].)
• “ ‘[C]ooperation clauses serve an important purpose. “[A] condition of a policy
requiring the cooperation and assistance of the assured in opposing a claim or an
action lodged against him by an injured person is material to the risk and of the
utmost importance in a practical sense. Without such cooperation and assistance
the insurer is severely handicapped and may in some instances be absolutely
precluded from advancing any defense.” . . . “[S]uch provisions ‘enable the
[insurer] to possess itself of all knowledge, and all information as to other
sources and means of knowledge, in regard to facts, material to [its] rights, to
enable [it] to decide upon [its] obligations, and to protect [itself] against false
claims.’ ” . . . Where an insured violates a cooperation clause, the insurer’s
performance is excused if its ability to provide a defense has been substantially
prejudiced.’ ” (Belz v. Clarendon America Ins. Co. (2007) 158 Cal.App.4th 615,
626 [69 Cal.Rptr.3d 864].)
• “[A]n insurer, in order to establish it was prejudiced by the failure of the insured
to cooperate in his defense, must establish at the very least that if the
cooperation clause had not been breached there was a substantial likelihood the
trier of fact would have found in the insured’s favor.” (Billington v.
Interinsurance Exchange of Southern California (1969) 71 Cal.2d 728, 737 [79
Cal.Rptr. 326, 456 P.2d 982].)
• “[I]f the trial court finds . . . that the insurer failed to diligently seek its
insured’s presence a finding that he breached the cooperation clause would not
be justified.” (Billington, supra, 71 Cal.2d at p. 744.)
• “[P]rejudice is not shown simply by displaying end results; the probability that
such results could or would have been avoided absent the claimed default or
error must also be explored.” (Clemmer v. Hartford Insurance Co. (1978) 22
Cal.3d 865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch.15-I, Trial,
¶¶ 15:917–15:919 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Insured’s Role in Defense, §§ 11.2–11.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.64[1]–[11] (Matthew Bender)
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2322. Affirmative Defense—Insured’s Voluntary Payment
[Name of defendant] claims that it does not have to pay [specify, e.g., the
amount of the settlement] because [name of plaintiff] made a voluntary
payment. To succeed on this defense, [name of defendant] must prove the
following:
1. [Select either or both of the following:]
1. [That [name of plaintiff] made a payment to [name of third party
claimant] in [partial/full] settlement of [name of third party
claimant]’s claim against [name of plaintiff]; [or]]
1. [That [name of plaintiff] [made a payment/ [or] assumed an
obligation/ [or] incurred an expense] to [name] with regard to
[name of third party claimant]’s claim against [name of plaintiff]];
1. AND
2. That [name of defendant] did not give its consent or approval for
the [payment/ [or] obligation/ [or] expense].
New April 2007
Directions for Use
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
This instruction is intended for use by an insurer as a defense to a breach of
contract action based on a third party liability policy. This instruction also may be
modified for use as a defense to a judgment creditor’s action to recover on a
liability policy. This defense is not available if the insurer refused to defend before
the voluntary payment was made. (See 21st Century Ins. Co. v. Superior Court
(Tapia) (2015) 240 Cal.App.4th 322, 328 [192 Cal.Rptr.3d 530].)
A voluntary-payments clause in an insurance policy typically provides that the
insured may not voluntarily make a payment, assume an obligation, or incur an
expense without the insurer’s consent. (See, e.g., Truck Ins. Exchange v. Unigard
Ins. Co. (2000) 79 Cal.App.4th 966, 976 [94 Cal.Rptr.2d 516].) In element 1, select
the appropriate options depending on the acts alleged. Modify, as necessary,
depending on the actual language of the policy. Use the first option if the insured
has made a payment in settlement of the claim. Use the second option if the insured
has made a payment, assumed an obligation, or incurred an expense for other
reasons, such as to an attorney for legal services, or to a creditor of the claimant,
such as a provider of medical or repair services.
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Sources and Authority
• “The general validity of no-voluntary-payment provisions in liability insurance
policies is well established. . . . [S]uch clauses are common ‘to prevent
collusion as well as to invest the insurer with the complete control and direction
of the defense or compromise of suits or claims.’ ” (Insua v. Scottsdale Ins. Co.
(2002) 104 Cal.App.4th 737, 742 [129 Cal.Rptr.2d 138], internal citations
omitted.)
• “California law enforces . . . no-voluntary-payments provisions in the absence
of economic necessity, insurer breach, or other extraordinary circumstances.
They are designed to ensure that responsible insurers that promptly accept a
defense tendered by their insureds thereby gain control over the defense and
settlement of the claim. That means insureds cannot unilaterally settle a claim
before the establishment of the claim against them and the insurer’s refusal to
defend in a lawsuit to establish liability . . . . [T]he decision to pay any
remediation costs outside the civil action context raises a ‘judgment call left
solely to the insurer.’ In short, the provision protects against coverage by fait
accompli.” (Low v. Golden Eagle Ins. Co. (2003) 110 Cal.App.4th 1532, 1544 [2
Cal.Rptr.3d 761], internal citations omitted.)
• “ ‘Typically, a breach of that provision occurs, if at all, before the insured has
tendered the defense to the insurer.’ . . . [A voluntary-payments] provision is
[also] enforceable posttender until the insurer wrongfully denies tender. ‘[I]t is
only when the insured has requested and been denied a defense by the insurer
that the insured may ignore the policy’s provisions forbidding the incurring of
defense costs without the insurer’s prior consent and under the compulsion of
that refusal undertake his own defense at the insurer’s expense.’ ” (Low, supra,
110 Cal.App.4th at pp. 1546–1547, original italics, internal citations omitted.)
• “ ‘[T]he existence or absence of prejudice to [the insurer] is simply irrelevant to
[its] duty to indemnify costs incurred before notice. The policy plainly provides
that notice is a condition precedent to the insured’s right to be indemnified; a
fortiori the right to be indemnified cannot relate back to payments made or
obligations incurred before notice.’ . . . The prejudice requirement . . . applies
only to the insurer’s attempt to assert lack of notice as a policy defense against
payment even of losses and costs incurred after belated notice.” (Jamestown
Builders, Inc. v. General Star Indemnity Co. (1999) 77 Cal.App.4th 341, 350 [91
Cal.Rptr.2d 514], original italics, internal citations omitted.)
• “[W]e hold that California’s notice-prejudice rule is applicable to a consent
provision in a first party policy where coverage does not depend on the existence
of a third party claim or potential claim.” (Pitzer College v. Indian Harbor Ins.
Co. (2019) 8 Cal.5th 93, 109 [251 Cal.Rptr.3d 701, 447 P.3d 669].)
• “ ‘There may be exceptions to the prohibition on voluntary payments, as where
the insured is unaware of the identity of the insurer, the payment is necessary for
reasons beyond the insured’s control, or the insured faces a situation requiring an
immediate response to protect its legal interests.’ In a circumstance of that
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nature, the insured’s payment is considered involuntary.” (Belz v. Clarendon
America Ins. Co. (2007) 158 Cal.App.4th 615, 628 [69 Cal.Rptr.3d 864], original
italics, internal citation omitted.)
• “If an insurer refuses to defend, the insured is free to enter into a non-collusive
settlement and then maintain or assign an action against the insurer for breach of
the duty to defend. In the subsequent action the amount of the settlement will be
presumptive evidence of the amount of the insured’s liability.” (21st Century Ins.
Co., supra, 240 Cal.App.4th at p. 328, original italics.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 459, 464
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 7A-L, Conditions
¶¶ 7:439.5–7:439.10 (The Rutter Group)
California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar), §§ 2.7,
3.27, 8.32, 11.14, 23.38
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.73[6] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, §§ 308.500,
308.502 (Matthew Bender)
2323–2329. Reserved for Future Use
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2330. Implied Obligation of Good Faith and Fair Dealing Explained
In every insurance policy there is an implied obligation of good faith and
fair dealing that neither the insurance company nor the insured will do
anything to injure the right of the other party to receive the benefits of
the agreement.
To fulfill its implied obligation of good faith and fair dealing, an
insurance company must give at least as much consideration to the
interests of the insured as it gives to its own interests.
To breach the implied obligation of good faith and fair dealing, an
insurance company must unreasonably act or fail to act in a manner that
deprives the insured of the benefits of the policy. To act unreasonably is
not a mere failure to exercise reasonable care. It means that the insurer
must act or fail to act without proper cause. However, it is not necessary
for the insurer to intend to deprive the insured of the benefits of the
policy.
New September 2003; Revised December 2007, December 2015
Directions for Use
This instruction may be used to introduce a “bad-faith” claim arising from an
alleged breach of the implied covenant of good faith and fair dealing.
Sources and Authority
• “There is an implied covenant of good faith and fair dealing in every contract
that neither party will do anything which will injure the right of the other to
receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co.
(1958) 50 Cal.2d 654, 658 [328 P.2d 198].)
• “It is important to recognize the reason for the possibility of tort, and perhaps
even punitive damages on top of regular tort damages, for an insurance
company’s unreasonable breach of an insurance contract. Insurance contracts are
unique in that, if the insurance company breaches them, the policyholder suffers
a loss (often a catastrophic loss) that cannot, by definition, be compensated by
obtaining another contract. [Citations.] [¶] Thus, without the possibility of tort
damages hanging over its head when it makes a claims decision, an insurance
company may choose not to deal in good faith when a policyholder makes a
claim. The insurance company could arbitrarily deny a claim, thus gambling
with the policyholder’s ‘benefits of the agreement.’ [Citation.] If the insurance
company gambled wrong, it would be no worse off than it would have been if it
had honored the claim in the first place. In effect, if the law confined the
exposure of the insurance company under such circumstances to only contract
damages, it would be pardoned and still retain the fruits of its offense.” (Pulte
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Home Corp. v. American Safety Indemnity Co. (2017) 14 Cal.App.5th 1086,
1125 [223 Cal.Rptr.3d 47].)
• “For the insurer to fulfill its obligation not to impair the right of the insured to
receive the benefits of the agreement, it again must give at least as much
consideration to the latter’s interests as it does to its own.” (Egan v. Mutual of
Omaha Insurance Co. (1979) 24 Cal.3d 809, 818–819 [169 Cal.Rptr. 691, 620
P.2d 141].)
• “[T]o establish the insurer’s ‘bad faith’ liability, the insured must show that the
insurer has (1) withheld benefits due under the policy, and (2) that such
withholding was ‘unreasonable’ or ‘without proper cause.’ The actionable
withholding of benefits may consist of the denial of benefits due; paying less
than due; and/or unreasonably delaying payments due.” (Major v. Western Home
Ins. Co. (2009) 169 Cal.App.4th 1197, 1209 [87 Cal.Rptr.3d 556], internal
citations omitted.)
• “ ‘[T]he covenant of good faith can be breached for objectively unreasonable
conduct, regardless of the actor’s motive.’ . . . [A]n insured plaintiff need only
show, for example, that the insurer unreasonably refused to pay benefits or failed
to accept a reasonable settlement offer; there is no requirement to establish
subjective bad faith.” (Bosetti v. United States Life Ins. Co. in the City of New
York (2009) 175 Cal.App.4th 1208, 1236 [96 Cal.Rptr.3d 744], original italics,
internal citations omitted.)
• “To establish bad faith, a policy holder must demonstrate misconduct by the
insurer more egregious than an incorrect denial of policy benefits.” (Case v. State
Farm Mutual Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397, 402 [241
Cal.Rptr.3d 458].)
• “Bad faith may involve negligence, or negligence may be indicative of bad faith,
but negligence alone is insufficient to render the insurer liable.” (Brown v.
Guarantee Ins. Co. (1957) 155 Cal.App.2d 679, 689 [319 P.2d 69].)
• “Thus, a breach of the implied covenant of good faith and fair dealing involves
something more than a breach of the contract or mistaken judgment. There must
be proof the insurer failed or refused to discharge its contractual duties not
because of an honest mistake, bad judgment, or negligence, ‘but rather by a
conscious and deliberate act, which unfairly frustrates the agreed common
purposes and disappoints the reasonable expectations of the other party thereby
depriving that party of the benefits of the agreement.’ ” (Century Surety Co. v.
Polisso (2006) 139 Cal.App.4th 922, 949 [43 Cal.Rptr.3d 468], internal citations
omitted.)
• “[I]f the insurer denies benefits unreasonably (i.e., without any reasonable basis
for such denial), it may be exposed to the full array of tort remedies, including
possible punitive damages.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th
1062, 1073 [56 Cal.Rptr.3d 312].)
• “Subterfuges and evasions violate the obligation of good faith in performance
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even though the actor believes his conduct to be justified. But the obligation
goes further: bad faith may be overt or may consist of inaction, and fair dealing
may require more than honesty. A complete catalogue of types of bad faith is
impossible, but the following types are among those which have been recognized
in judicial decisions: evasion of the spirit of the bargain, lack of diligence and
slacking off, willful rendering of imperfect performance, abuse of a power to
specify terms, and interference with or failure to cooperate in the other party’s
performance.” (R. J. Kuhl Corp. v. Sullivan (1993) 13 Cal.App.4th 1589, 1602
[17 Cal.Rptr.2d 425].)
• “[A]n insurer is not required to pay every claim presented to it. Besides the duty
to deal fairly with the insured, the insurer also has a duty to its other
policyholders and to the stockholders (if it is such a company) not to dissipate
its reserves through the payment of meritless claims. Such a practice inevitably
would prejudice the insurance seeking public because of the necessity to increase
rates, and would finally drive the insurer out of business.” (Austero v. National
Cas. Co. (1978) 84 Cal.App.3d 1, 30 [148 Cal.Rptr. 653], overruled on other
grounds in Egan, supra, 24 Cal.3d at p. 824 fn. 7.)
• “Unique obligations are imposed upon true fiduciaries which are not found in the
insurance relationship. For example, a true fiduciary must first consider and
always act in the best interests of its trust and not allow self-interest to
overpower its duty to act in the trust’s best interests. An insurer, however, may
give its own interests consideration equal to that it gives the interests of its
insured; it is not required to disregard the interests of its shareholders and other
policyholders when evaluating claims; and it is not required to pay noncovered
claims, even though payment would be in the best interests of its insured.” (Love
v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1148–1149 [271 Cal.Rptr.
246], internal citations omitted.)
• “[I]n California, an insurer has the same duty to act in good faith in the
uninsured motorist context as it does in any other insurance context.” (Maslo v.
Ameriprise Auto & Home Ins. (2014) 227 Cal.App.4th 626, 636 [173 Cal.Rptr.3d
854].)
• “ ‘[P]erformance of an act specifically authorized by the policy cannot, as a
matter of law, constitute bad faith.’ [¶] [I]n the insurance context, . . . ‘ “courts
are not at liberty to imply a covenant directly at odds with a contract’s express
grant of discretionary power.” ’ The possible exception would be ‘ “those
relatively rare instances when reading the provision literally would, contrary to
the parties’ clear intention, result in an unenforceable, illusory agreement.” ’ ”
(Baldwin v. AAA Northern California, Nevada & Utah Ins. Exchange (2016) 1
Cal.App.5th 545, 557–558 [204 Cal.Rptr.3d 433], internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, § 340
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 11-B, Theories
For Extracontractual Liability—In General, ¶¶ 11:7–11:8.1 (The Rutter Group)
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Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-A,
Definition of Terms, ¶¶ 12:1–12:10 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-B, Capsule
History Of Insurance “Bad Faith” Cases, ¶¶ 12:13–12:23 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-C, Theory
Of Recovery—Breach Of Implied Covenant Of Good Faith And Fair Dealing (“Bad
Faith”), ¶¶ 12:27–12:54 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-D, Who
May Sue For Tortious Breach Of Implied Covenant (Proper Plaintiffs),
¶¶ 12:56–12:90.17 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-E, Persons
Who May Be Sued For Tortious Breach Of Implied Covenant (Proper Defendants),
¶¶ 12:92–12:118 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-F,
Compare—Breach Of Implied Covenant By Insured, ¶¶ 12:119–12:121 (The Rutter
Group)
1 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar)
Overview of Rights and Obligations of Policy, §§ 2.9–2.15
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.01 (Matthew Bender)
1 California Uninsured Motorist Law, Ch. 13, Rights, Duties, and Obligations of the
Parties, § 13.23 (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, §§ 24.10, 24.20–24.21, 24.40 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24[1]
(Matthew Bender)
11 California Legal Forms, Ch. 26A, Title Insurance, § 26A.17[9] (Matthew Bender)
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2331. Breach of the Implied Obligation of Good Faith and Fair
Dealing—Failure or Delay in Payment (First Party)—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] breached the obligation
of good faith and fair dealing by [failing to pay/delaying payment of]
benefits due under the insurance policy. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] suffered a loss covered under an insurance
policy with [name of defendant];
2. That [name of defendant] was notified of the loss;
3. That [name of defendant], unreasonably [failed to pay/delayed
payment of] policy benefits;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s [failure to pay/delay in payment of]
policy benefits was a substantial factor in causing [name of
plaintiff]’s harm.
To act or fail to act “unreasonably” means that the insurer had no
proper cause for its conduct. In determining whether [name of defendant]
acted unreasonably, you should consider only the information that [name
of defendant] knew or reasonably should have known at the time when it
[failed to pay/delayed payment of] policy benefits.
New September 2003; Revised December 2007, April 2008, December 2009,
December 2015
Directions for Use
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
If there is a genuine issue as to the insurer’s liability under the policy for the claim
asserted by the insured, there can be no bad-faith liability imposed on the insurer for
advancing its side of that dispute. This is known as the “genuine dispute” doctrine.
The genuine-dispute doctrine is subsumed within the test of reasonableness or
proper cause (element 3). No specific instruction on the doctrine need be given. (See
McCoy v. Progressive West Ins. Co. (2009) 171 Cal.App.4th 785, 792–794 [90
Cal.Rptr.3d 74].)
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
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Sources and Authority
• If an insurer “fails to deal fairly and in good faith with its insured by refusing,
without proper cause, to compensate its insured for a loss covered by the policy,
such conduct may give rise to a cause of action in tort for breach of an implied
covenant of good faith and fair dealing. . . . [¶] . . . [W]hen the insurer
unreasonably and in bad faith withholds payment of the claim of its insured, it is
subject to liability in tort.” (Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.3d
566, 574–575 [108 Cal.Rptr. 480, 510 P.2d 1032], original italics.)
• “An insurer’s obligations under the implied covenant of good faith and fair
dealing with respect to first party coverage include a duty not to unreasonably
withhold benefits due under the policy. An insurer that unreasonably delays, or
fails to pay, benefits due under the policy may be held liable in tort for breach of
the implied covenant. The withholding of benefits due under the policy may
constitute a breach of contract even if the conduct was reasonable, but liability
in tort arises only if the conduct was unreasonable, that is, without proper cause.
In a first party case, as we have here, the withholding of benefits due under the
policy is not unreasonable if there was a genuine dispute between the insurer
and the insured as to coverage or the amount of payment due.” (Rappaport-Scott
v. Interinsurance Exch. of the Auto. Club (2007) 146 Cal.App.4th 831, 837 [53
Cal.Rptr.3d 245], internal citations omitted.)
• “[T]here are at least two separate requirements to establish breach of the implied
covenant: (1) benefits due under the policy must have been withheld; and (2) the
reason for withholding benefits must have been unreasonable or without proper
cause.” (Love v. Fire Insurance Exchange (1990) 221 Cal.App.3d 1136, 1151
[271 Cal.Rptr. 246], internal citations omitted.)
• “The standard of good faith and fairness examines the reasonableness of the
insurer’s conduct, and mere errors by an insurer in discharging its obligations to
its insured ‘ “does not necessarily make the insurer liable in tort for violating the
covenant of good faith and fair dealing; to be liable in tort, the insurer’s conduct
must also have been unreasonable. [Citations.]” ’ ” (Graciano v. Mercury
General Corp. (2014) 231 Cal.App.4th 414, 425 [179 Cal.Rptr.3d 717], original
italics.)
• “ ‘Although an insurer’s bad faith is ordinarily a question of fact to be
determined by a jury by considering the evidence of motive, intent and state of
mind, “[t]he question becomes one of law . . . when, because there are no
conflicting inferences, reasonable minds could not differ.” ’ ” (Pulte Home Corp.
v. American Safety Indemnity Co. (2017) 14 Cal.App.5th 1086, 1119 [223
Cal.Rptr.3d 47].)
• “Generally, the reasonableness of an insurer’s conduct ‘must be evaluated in
light of the totality of the circumstances surrounding its actions.’ ” (Paslay v.
State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 654 [203 Cal.Rptr.3d
785].)
• “[T]he adequacy of the insurer’s claims handling is properly assessed in light of
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conduct by the insured delaying resolution of a claim.” (Case v. State Farm
Mutual Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397, 413 [241
Cal.Rptr.3d 458].)
• “ ‘[A]n insurer denying or delaying the payment of policy benefits due to the
existence of a genuine dispute with its insured as to the existence of coverage
liability or the amount of the insured’s coverage claim is not liable in bad faith[,]
even though it might be liable for breach of contract.’ That is because ‘whe[n]
there is a genuine issue as to the insurer’s liability under the policy for the claim
asserted by the insured, there can be no bad faith liability imposed on the insurer
for advancing its side of that dispute.’ ” (Case, supra, 30 Cal.App.5th at p. 402,
internal citation omitted.)
• “The genuine dispute rule does not relieve an insurer from its obligation to
thoroughly and fairly investigate, process and evaluate the insured’s claim. A
genuine dispute exists only where the insurer’s position is maintained in good
faith and on reasonable grounds. . . . ‘The genuine issue rule in the context of
bad faith claims allows a [trial] court to grant summary judgment when it is
undisputed or indisputable that the basis for the insurer’s denial of benefits was
reasonable—for example, where even under the plaintiff’s version of the facts
there is a genuine issue as to the insurer’s liability under California law. . . . On
the other hand, an insurer is not entitled to judgment as a matter of law where,
viewing the facts in the light most favorable to the plaintiff, a jury could
conclude that the insurer acted unreasonably.’ ” (Wilson v. 21st Century Ins. Co.
(2007) 42 Cal.4th 713, 724 [68 Cal.Rptr.3d 746, 171 P.3d 1082], original italics,
internal citations omitted.)
• “[T]he reasonableness of the insurer’s decisions and actions must be evaluated as
of the time that they were made; the evaluation cannot fairly be made in the
light of subsequent events that may provide evidence of the insurer’s errors.
[Citation.]” (Zubillaga v. Allstate Indemnity Co. (2017) 12 Cal.App.5th 1017,
1028 [219 Cal.Rptr.3d 620].)
• “[I]f the insurer denies benefits unreasonably (i.e., without any reasonable basis
for such denial), it may be exposed to the full array of tort remedies, including
possible punitive damages.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th
1062, 1073 [56 Cal.Rptr.3d 312].)
• “While many, if not most, of the cases finding a genuine dispute over an
insurer’s coverage liability have involved legal rather than factual disputes, we
see no reason why the genuine dispute doctrine should be limited to legal issues.
That does not mean, however, that the genuine dispute doctrine may properly be
applied in every case involving purely a factual dispute between an insurer and
its insured. This is an issue which should be decided on a case-by-case basis.”
(Chateau Chamberay Homeowners Assn., supra, 90 Cal.App.4th at p. 348,
original italics, footnote and internal citations omitted.)
• “[I]f the conduct of [the insurer] in defending this case was objectively
reasonable, its subjective intent is irrelevant.” (Bosetti v. United States Life Ins.
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Co. in the City of New York (2009) 175 Cal.App.4th 1208, 1236 [96 Cal.Rptr.3d
744]; cf. Carma Developers (Cal.), Inc. v. Marathon Development California,
Inc. (1992) 2 Cal.4th 342, 372 [6 Cal.Rptr.2d 467, 826 P.2d 710] [“[I]t has been
suggested the covenant has both a subjective and objective aspect—subjective
good faith and objective fair dealing. A party violates the covenant if it
subjectively lacks belief in the validity of its act or if its conduct is objectively
unreasonable.”].)
• “[W]hile an insurer’s subjective bad intentions are not a sufficient basis on
which to establish a bad faith cause of action, an insurer’s subjective mental
state may nonetheless be a circumstance to be considered in the evaluation of
the objective reasonableness of the insurer’s actions.” (Bosetti, supra, 175
Cal.App.4th at p. 1239, original italics.)
• “[A]n insured cannot maintain a claim for tortious breach of the implied
covenant of good faith and fair dealing absent a covered loss. If the insurer’s
investigation—adequate or not—results in a correct conclusion of no coverage,
no tort liability arises for breach of the implied convenant.” (Benavides v. State
Farm General Ins. Co. (2006) 136 Cal.App.4th 1241, 1250 [39 Cal.Rptr.3d 650],
internal citations omitted; cf. Brehm v. 21st Century Ins. Co. (2008) 166
Cal.App.4th 1225, 1236 [83 Cal.Rptr.3d 410] [“[B]reach of a specific provision
of the contract is not a necessary prerequisite to a claim for breach of the
implied covenant of good faith and fair dealing. . . . [E]ven an insurer that pays
the full limits of its policy may be liable for breach of the implied covenant, if
improper claims handling causes detriment to the insured”].)
• “ ‘[D]enial of a claim on a basis unfounded in the facts known to the insurer, or
contradicted by those facts, may be deemed unreasonable. “A trier of fact may
find that an insurer acted unreasonably if the insurer ignores evidence available
to it which supports the claim. The insurer may not just focus on those facts
which justify denial of the claim.” ’ ” (Maslo v. Ameriprise Auto & Home Ins.
(2014) 227 Cal.App.4th 626, 634 [173 Cal.Rptr.3d 854].)
• “We conclude . . . that the duty of good faith and fair dealing on the part of
defendant insurance companies is an absolute one. . . . [T]he nonperformance by
one party of its contractual duties cannot excuse a breach of the duty of good
faith and fair dealing by the other party while the contract between them is in
effect and not rescinded.” (Gruenberg, supra, 9 Cal.3d at p. 578.)
• “Thus, an insurer may be liable for bad faith in failing to attempt to effectuate a
prompt and fair settlement (1) where it unreasonably demands arbitration, or (2)
where it commits other wrongful conduct, such as failing to investigate a claim.
An insurer’s statutory duty to attempt to effectuate a prompt and fair settlement
is not abrogated simply because the insured’s damages do not plainly exceed the
policy limits. Nor is the insurer’s duty to investigate a claim excused by the
arbitrator’s finding that the amount of damages was lower than the insured’s
initial demand. Even where the amount of damages is lower than the policy
limits, an insurer may act unreasonably by failing to pay damages that are
certain and demanding arbitration on those damages.” (Maslo, supra, 227
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Cal.App.4th at pp. 638–639 [uninsured motorist coverage case].)
• “[T]he insurer’s duty to process claims fairly and in good faith [is] a
nondelegable duty.” (Hughes v. Blue Cross of Northern California (1989) 215
Cal.App.3d 832, 848 [263 Cal.Rptr. 850].)
• “[I]n [a bad-faith action] ‘damages for emotional distress are compensable as
incidental damages flowing from the initial breach, not as a separate cause of
action.’ Such claims of emotional distress must be incidental to ‘a substantial
invasion of property interests.’ ” (Major v. Western Home Ins. Co. (2009) 169
Cal.App.4th 1197, 1214 [87 Cal.Rptr.3d 556], original italics, internal citations
omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 341–343
Croskey et al., California Practice Guide: Insurance Litigation. Ch. 12C-C, Bad
Faith—Requirements for First Party Bad Faith Action, ¶¶ 12:822–12:1016 (The
Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) General
Principles of Contract and Bad Faith Actions, §§ 24.25–24.45A
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, §§ 13.03[2][a]–[c], 13.06 (Matthew Bender)
1 California Uninsured Motorist Law, Ch. 13, Rights, Duties, and Obligations of the
Parties, § 13.23 (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, §§ 24.10, 24.20–24.21, 24.40 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.140 (Matthew Bender)
6 Levy et al., California Torts, Ch. 82, Claims and Disputes Under Insurance
Policies, §§ 82.21, 82.50 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
11 California Legal Forms, Ch. 26A, Title Insurance, § 26A.17 (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.208 (Matthew
Bender)
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2332. Bad Faith (First Party)—Failure to Properly Investigate
Claim—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] acted unreasonably,
that is, without proper cause, by failing to conduct a proper investigation
of [his/her/nonbinary pronoun/its] claim. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] suffered a loss covered under an insurance
policy issued by [name of defendant];
2. That [name of plaintiff] properly presented a claim to [name of
defendant] to be compensated for the loss;
3. That [name of defendant], failed to conduct a full, fair, prompt,
and thorough investigation of all of the bases of [name of
plaintiff]’s claim;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s failure to properly investigate the
claim was a substantial factor in causing [name of plaintiff]’s
harm.
When investigating [name of plaintiff]’s claim, [name of defendant] had a
duty to diligently search for and consider evidence that supported
coverage of the claimed loss.
New September 2003; Revised December 2005, December 2007, April 2008,
December 2015, June 2016
Directions for Use
This instruction sets forth a claim for breach of the implied covenant of good faith
and fair dealing based on the insurer’s failure or refusal to conduct a proper
investigation of the plaintiff’s claim. The claim alleges that the insurer acted
unreasonably, that is, without proper cause, by failing to properly investigate the
claim. (See Rappaport-Scott v. Interinsurance Exch. of the Auto. Club (2007) 146
Cal.App.4th 831, 837 [53 Cal.Rptr.3d 245].)
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “[A]n insurer may breach the covenant of good faith and fair dealing when it
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fails to properly investigate its insured’s claim.” (Egan v. Mutual of Omaha
Insurance Co. (1979) 24 Cal.3d 809, 817 [169 Cal.Rptr. 691, 620 P.2d 141].)
• “To fulfill its implied obligation, an insurer must give at least as much
consideration to the interests of the insured as it gives to its own interests. When
the insurer unreasonably and in bad faith withholds payment of the claim of its
insured, it is subject to liability in tort. And an insurer cannot reasonably and in
good faith deny payments to its insured without fully investigating the grounds
for its denial.” (Frommoethelydo v. Fire Insurance Exchange (1986) 42 Cal.3d
208, 214–215 [228 Cal.Rptr. 160, 721 P.2d 41], internal citation omitted.)
• “To protect [an insured’s] interests it is essential that an insurer fully inquire into
possible bases that might support the insured’s claim. Although we recognize
that distinguishing fraudulent from legitimate claims may occasionally be
difficult for insurers, . . . an insurer cannot reasonably and in good faith deny
payments to its insured without thoroughly investigating the foundation for its
denial.” (Egan, supra, 24 Cal.3d at p. 819.)
• “When investigating a claim, an insurance company has a duty to diligently
search for evidence which supports its insured’s claim. If it seeks to discover
only the evidence that defeats the claim it holds its own interest above that of
the insured.” (Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th
1617, 1620 [50 Cal.Rptr.2d 224].)
• “An insurer is not permitted to rely selectively on facts that support its position
and ignore those facts that support a claim. Doing so may constitute bad faith.”
(Mazik v. Geico General Ins. Co. (2019) 35 Cal.App.5th 455, 462 [247
Cal.Rptr.3d 450].)
• “While we agree with the trial court . . . that the insurer’s interpretation of the
language of its policy which led to its original denial of [the insured]’s claim
was reasonable, it does not follow that [the insurer]’s resulting claim denial can
be justified in the absence of a full, fair and thorough investigation of all of the
bases of the claim that was presented.” (Jordan v. Allstate Ins. Co. (2007) 148
Cal.App.4th 1062, 1066 [56 Cal.Rptr.3d 312], original italics.)
• “An unreasonable failure to investigate amounting to . . . unfair dealing may be
found when an insurer fails to consider, or seek to discover, evidence relevant to
the issues of liability and damages. . . . [¶] The insurer’s willingness to
reconsider its denial of coverage and to continue an investigation into a claim
has been held to weigh in favor of its good faith.” (Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 880 [93
Cal.Rptr.2d 364], internal citation omitted.)
• “[The insurer], of course, was not obliged to accept [the doctor]’s opinion
without scrutiny or investigation. To the extent it had good faith doubts, the
insurer would have been within its rights to investigate the basis for [plaintiff]’s
claim by asking [the doctor] to reexamine or further explain his findings, having
a physician review all the submitted medical records and offer an opinion, or, if
necessary, having its insured examined by other physicians (as it later did). What
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it could not do, consistent with the implied covenant of good faith and fair
dealing, was ignore [the doctor]’s conclusions without any attempt at adequate
investigation, and reach contrary conclusions lacking any discernable medical
foundation.” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 722 [68
Cal.Rptr.3d 746, 171 P.3d 1082], original italics.)
• “[W]hether an insurer breached its duty to investigate [is] a question of fact to
be determined by the particular circumstances of each case.” (Paulfrey v. Blue
Chip Stamps (1983) 150 Cal.App.3d 187, 196 [197 Cal.Rptr. 501].)
• “[L]iability in tort arises only if the conduct was unreasonable, that is, without
proper cause.” (Rappaport-Scott, supra, 146 Cal.App.4th at p. 837.)
• “[W]ithout actual presentation of a claim by the insured in compliance with
claims procedures contained in the policy, there is no duty imposed on the
insurer to investigate the claim.” (California Shoppers, Inc. v. Royal Globe
Insurance Co. (1985) 175 Cal.App.3d 1, 57 [221 Cal.Rptr. 171].)
• “It would seem reasonable that any responsibility to investigate on an insurer’s
part would not arise unless and until the threshold issue as to whether a claim
was filed, or a good faith effort to comply with claims procedure was made, has
been determined. In no event could an insured fail to keep his/her part of the
bargain in the first instance, and thereafter seek recovery for breach of a duty to
pay seeking punitive damages based on an insurer’s failure to investigate a
nonclaim.” (Paulfrey, supra, 150 Cal.App.3d at pp. 199–200.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, § 348
Croskey et al., California Practice Guide: Insurance Litigation, Chapter 12C-D, Bad
Faith—First Party Cases—Application—Matters Held “Unreasonable”,
¶¶ 12:848–12:904 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Investigating the Claim, §§ 9.2, 9.14–9.22
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.04[1]–[3] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.11 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.153, 120.184
(Matthew Bender)
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2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of
Rights—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached the obligation
of good faith and fair dealing by failing to reasonably inform [him/her/
nonbinary pronoun/it] of [his/her/nonbinary pronoun/its] rights and
obligations under an insurance policy. To succeed, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] suffered a loss covered under an insurance
policy with [name of defendant];
2. That [name of defendant] [denied coverage for/refused to pay]
[name of plaintiff]’s loss;
3. That under the policy [name of plaintiff] had the [right/obligation]
to [describe right or obligation at issue; e.g., “to request arbitration
within 180 days”];
4. That [name of defendant] did not reasonably inform [name of
plaintiff] of [his/her/nonbinary pronoun/its] [right/obligation] to
[describe right or obligation];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s failure to reasonably inform [name of
plaintiff] was a substantial factor in causing [his/her/nonbinary
pronoun/its] harm.
New September 2003; Revised May 2020
Directions for Use
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
This instruction is intended for use in appropriate cases if the insured alleges that
the insurer breached the implied covenant of good faith and fair dealing by failing
to reasonably inform the insured of the insured’s remedial rights and obligations
under an insurance policy.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• The insurer’s implied duty of good faith and fair dealing includes “the duty
reasonably to inform an insured of the insured’s rights and obligations under the
insurance policy. In particular, in situations in which an insured’s lack of
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knowledge may potentially result in a loss of benefits or a forfeiture of rights, an
insurer [is] required to bring to the insured’s attention relevant information so as
to enable the insured to take action to secure rights afforded by the policy.”
(Davis v. Blue Cross of Northern California (1979) 25 Cal.3d 418, 428 [158
Cal.Rptr. 828, 600 P.2d 1060].)
• The trial court in the instant case found that [the insurer] knew that in many
instances its insureds would not be aware of the arbitration clause and that,
despite this knowledge, [it] deliberately decided not to inform its insureds of the
arbitration procedure. In this context, the practical effect of the insurer’s practice
was to transform its arbitration clause into a unilateral provision, establishing a
procedure to which the insurer could require its insureds to resort when [it]
deemed it advisable, but one that would not generally provide a speedy,
economic or readily accessible remedy for the bulk of [its] uninformed insureds.
[¶] We think the trial court was fully justified in finding that [the insurer] had
breached its duty of good faith and fair dealing in adopting such a course of
conduct. (Davis, supra, 25 Cal.3d at pp. 430–431.)
• “When a court is reviewing claims under an insurance policy, it must hold the
insured bound by clear and conspicuous provisions in the policy even if
evidence suggests that the insured did not read or understand them. Once it
becomes clear to the insurer that its insured disputes its denial of coverage,
however, the duty of good faith does not permit the insurer passively to assume
that its insured is aware of his rights under the policy. The insurer must instead
take affirmative steps to make sure that the insured is informed of his remedial
rights.” (Sarchett v. Blue Shield of California (1987) 43 Cal.3d 1, 14–15 [233
Cal.Rptr. 76, 729 P.2d 267], plurality opinion.)
• But see Chase v. Blue Cross of California (1996) 42 Cal.App.4th 1142, 1155 [50
Cal.Rptr.2d 178] [while insurer may not misrepresent facts or fail to clarify an
insured’s obvious misunderstanding of the policy coverage, it does not have an
ongoing duty to keep the insured informed of his or her rights once those rights
have been clearly set forth in the policy].)
• “In order to find a forfeiture by the insurer of the right to arbitration, we
understand Davis and Sarchett to require conduct designed to mislead
policyholders.” (Chase, supra, 42 Cal.App.4th at p. 1157, original italics.)
• An insurer owes a duty to an additional insured under an automobile policy to
disclose within a reasonable time the existence and amount of any underinsured
motorist coverage. (Ramirez v. USAA Casualty Insurance Co. (1991) 234
Cal.App.3d 391, 397–402 [285 Cal.Rptr. 757].)
• “California courts have imposed a duty on the insurer to advise its insureds of
the availability of and procedure for initiating arbitration; to notify him of a 31-
day option period in which to convert his group insurance policy into individual
coverage after termination; and to notify an assignee of a life insurance policy
taken as security for a loan to the insured of previous assignments of the policy
known to the insurer.” (Westrick v. State Farm Insurance (1982) 137 Cal.App.3d
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685, 692 [187 Cal.Rptr. 214], internal citations omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12C-D,
Application—Matters Held “Unreasonable”, ¶¶ 12:953–12:963 (The Rutter Group)
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.05 (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.22 (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.383–120.384,
120.390 (Matthew Bender)
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2334. Bad Faith (Third Party)—Refusal to Accept Reasonable
Settlement Demand Within Liability Policy Limits—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] breached the obligation
of good faith and fair dealing because [name of defendant] failed to accept
a reasonable settlement demand for a claim against [name of plaintiff]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was insured under a policy of liability
insurance issued by [name of defendant];
2. That [name of plaintiff in underlying case] made a claim against
[name of plaintiff] that was covered by [name of defendant]’s
insurance policy;
3. That [name of defendant] failed to accept a reasonable settlement
demand for an amount within policy limits;
4. That [name of defendant]’s failure to accept the settlement demand
was the result of unreasonable conduct by [name of defendant];
and
5. That a monetary judgment was entered against [name of plaintiff]
for a sum greater than the policy limits.
“Policy limits” means the highest amount of insurance coverage available
under the policy for the claim against [name of plaintiff].
A settlement demand for an amount within policy limits is reasonable if
[name of defendant] knew or should have known at the time the demand
was rejected that a potential judgment against [name of plaintiff] was
likely to exceed the amount of the demand based on [name of plaintiff in
underlying case]’s injuries or losses and [name of plaintiff]’s probable
liability. However, the demand may be unreasonable for reasons other
than the amount demanded.
An insurance company’s unreasonable conduct may be shown by action
or by the failure to act. An insurance company’s conduct is unreasonable
when, for example, it does not give at least as much consideration to the
interests of the insured as it gives to its own interests.
New September 2003; Revised December 2007, June 2012, December 2012, June
2016, November 2021
Directions for Use
This instruction is for use in an “excess judgment” case; that is one in which
judgment was against the insured for an amount over the policy limits, after the
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insurer rejected a settlement demand within policy limits.
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case. For example, if the plaintiff is the insured’s assignee, modify the
instruction as needed to reflect the underlying facts and relationship between the
parties.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
If it is alleged that a demand was made in excess of limits and there is a claim that
the defendant should have contributed the policy limits, then this instruction will
need to be modified.
This instruction should also be modified if the insurer did not accept the policy-
limits demand because of potential remaining exposure to the insured, such as a
contractual indemnity claim or exposure to other claimants.
Sources and Authority
• “[T]he implied obligation of good faith and fair dealing requires the insurer to
settle in an appropriate case although the express terms of the policy do not
impose such a duty. [¶] The insurer, in deciding whether a claim should be
compromised, must take into account the interest of the insured and give it at
least as much consideration as it does to its own interest. When there is great
risk of a recovery beyond the policy limits so that the most reasonable manner
of disposing of the claim is a settlement which can be made within those limits,
a consideration in good faith of the insured’s interest requires the insurer to
settle the claim.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d
654, 659 [328 P.2d 198], citation omitted.)
• “Liability is imposed not for a bad faith breach of the contract but for failure to
meet the duty to accept reasonable settlements, a duty included within the
implied covenant of good faith and fair dealing.” (Crisci v. Security Insurance
Co. of New Haven, Connecticut (1967) 66 Cal.2d 425, 430 [58 Cal.Rptr. 13, 426
P.2d 173].)
• “In determining whether an insurer has given consideration to the interests of the
insured, the test is whether a prudent insurer without policy limits would have
accepted the settlement offer.” (Crisci, supra, 66 Cal.2d at p. 429.)
• “[I]n deciding whether or not to compromise the claim, the insurer must conduct
itself as though it alone were liable for the entire amount of the
judgment. . . . [T]he only permissible consideration in evaluating the
reasonableness of the settlement offer becomes whether, in light of the victim’s
injuries and the probable liability of the insured, the ultimate judgment is likely
to exceed the amount of the settlement offer.” (Johansen v. California State
Auto. Assn. Inter-Insurance Bureau (1975) 15 Cal.3d 9, 16 [123 Cal.Rptr. 288,
538 P.2d 744], internal citation omitted.)
• “[A]n insurer is required to act in good faith in dealing with its insured. Thus, in
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deciding whether or not to settle a claim, the insurer must take into account the
interests of the insured, and when there is a great risk of recovery beyond the
policy limits, a good faith consideration of the insured’s interests may require the
insurer to settle the claim within the policy limits. An unreasonable refusal to
settle may subject the insurer to liability for the entire amount of the judgment
rendered against the insured, including any portion in excess of the policy
limits.” (Hamilton v. Maryland Cas. Co. (2002) 27 Cal.4th 718, 724–725 [117
Cal.Rptr.2d 318, 41 P.3d 128].)
• “The size of the judgment recovered in the personal injury action when it
exceeds the policy limits, although not conclusive, furnishes an inference that the
value of the claim is the equivalent of the amount of the judgment and that
acceptance of an offer within those limits was the most reasonable method of
dealing with the claim.” (Crisci, supra, 66 Cal.2d at p. 431.)
• “The covenant of good faith and fair dealing implied in every insurance policy
obligates the insurer, among other things, to accept a reasonable offer to settle a
lawsuit by a third party against the insured within policy limits whenever there
is a substantial likelihood of a recovery in excess of those limits. The insurer
must evaluate the reasonableness of an offer to settle a lawsuit against the
insured by considering the probable liability of the insured and the amount of
that liability, without regard to any coverage defenses. An insurer that fails to
accept a reasonable settlement offer within policy limits will be held liable in
tort for the entire judgment against the insured, even if that amount exceeds the
policy limits. An insurer’s duty to accept a reasonable settlement offer in these
circumstances is implied in law to protect the insured from exposure to liability
in excess of coverage as a result of the insurer’s gamble—on which only the
insured might lose.” (Rappaport-Scott v. Interinsurance Exch. of the Auto. Club
(2007) 146 Cal.App.4th 831, 836 [53 Cal.Rptr.3d 245], internal citations
omitted.)
• “An insured’s claim for bad faith based on an alleged wrongful refusal to settle
first requires proof the third party made a reasonable offer to settle the claims
against the insured for an amount within the policy limits. The offer satisfies this
first element if (1) its terms are clear enough to have created an enforceable
contract resolving all claims had it been accepted by the insurer, (2) all of the
third party claimants have joined in the demand, (3) it provides for a complete
release of all insureds, and (4) the time provided for acceptance did not deprive
the insurer of an adequate opportunity to investigate and evaluate its insured’s
exposure.” (Graciano v. Mercury General Corp. (2014) 231 Cal.App.4th 414,
425 [179 Cal.Rptr.3d 717], internal citations omitted.)
• “An insurer’s duty to accept a reasonable settlement offer is not absolute. ‘ “[I]n
deciding whether or not to settle a claim, the insurer must take into account the
interests of the insured, and when there is a great risk of recovery beyond the
policy limits, a good faith consideration of the insured’s interests may require the
insurer to settle the claim within the policy limits. An unreasonable refusal to
settle may subject the insurer to liability for the entire amount of the judgment
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rendered against the insured, including any portion in excess of the policy
limits.” ’ [¶] Therefore, failing to accept a reasonable settlement offer does not
necessarily constitute bad faith. ‘[T]he crucial issue is . . . the basis for the
insurer’s decision to reject an offer of settlement.’ ” (Pinto v. Farmers Ins.
Exchange (2021) 61 Cal.App.5th 676, 688 [276 Cal.Rptr.3d 13], original italics,
internal citations omitted.)
• “A claim for bad faith based on the wrongful refusal to settle thus requires proof
the insurer unreasonably failed to accept an offer. [¶] Simply failing to settle
does not meet this standard.” (Pinto, supra, 61 Cal.App.5th at p. 688, internal
citation omitted.)
• “To be liable for bad faith, an insurer must not only cause the insured’s
damages, it must act or fail to act without proper cause, for example by placing
its own interests above those of its insured.” (Pinto, supra, 61 Cal.App.5th at p.
692.)
• “A bad faith claim requires ‘something beyond breach of the contractual duty
itself, and that something more is ‘ “refusing, without proper cause, to
compensate its insured for a loss covered by the policy . . . .” [Citation.] Of
course, the converse of “without proper cause” is that declining to perform a
contractual duty under the policy with proper cause is not a breach of the
implied covenant.’ ” (Graciano, supra, 231 Cal.App.4th at p. 433, original
italics.)
• “Determination of the reasonableness of a settlement offer for purposes of a
reimbursement action is based on the information available to [the insurer] at the
time of the proposed settlement.” (Isaacson v. California Ins. Guarantee Assn.
(1988) 44 Cal.3d 775, 793 [244 Cal.Rptr. 655, 750 P.2d 297].)
• “The third party is entitled to set a reasonable time limit within which the
insurer must accept the settlement proposal . . . .” (Graciano, supra, 231
Cal.App.4th at p. 434.)
• “Whether [the insurer] ‘refused’ the ‘offer,’ and whether it could reasonably have
acted otherwise in light of the 11-day deadline imposed by the offer’s terms,
were questions for the jury.” (Coe v. State Farm Mut. Auto. Ins. Co. (1977) 66
Cal.App.3d 981, 994 [136 Cal.Rptr. 331].)
• “A cause of action for bad faith refusal to settle arises only after a judgment has
been rendered in excess of the policy limits. . . . Until judgment is actually
entered, the mere possibility or probability of an excess judgment does not
render the refusal to settle actionable.” (Safeco Ins. Co. of Am. v. Superior Court
(1999) 71 Cal.App.4th 782, 788 [84 Cal.Rptr.2d 43], internal citations omitted.)
• “An insurer’s wrongful failure to settle may be actionable even without rendition
of an excess judgment. An insured may recover for bad faith failure to settle,
despite the lack of an excess judgment, where the insurer’s misconduct goes
beyond a simple failure to settle within policy limits or the insured suffers
consequential damages apart from an excess judgment.” (Howard v. American
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National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 527 [115 Cal.Rptr.3d 42],
internal citations omitted.)
• “ ‘An insurer who denies coverage does so at its own risk and although its
position may not have been entirely groundless, if the denial is found to be
wrongful it is liable for the full amount which will compensate the insured for
all the detriment caused by the insurer’s breach of the express and implied
obligations of the contract.’ Accordingly, contrary to the defendant’s suggestion,
an insurer’s ‘good faith,’ though erroneous, belief in noncoverage affords no
defense to liability flowing from the insurer’s refusal to accept a reasonable
settlement offer.” (Johansen, supra, 15 Cal.3d at pp. 15−16, original italics,
footnotes and internal citation omitted.)
• “[W]here the kind of claim asserted is not covered by the insurance contract
(and not simply the amount of the claim), an insurer has no obligation to pay
money in settlement of a noncovered claim, because ‘The insurer does not . . .
insure the entire range of an insured’s well-being, outside the scope of and
unrelated to the insurance policy, with respect to paying third party claims.’ ”
(Dewitt v. Monterey Ins. Co. (2012) 204 Cal.App.4th 233, 244 [138 Cal.Rptr.3d
705], original italics.)
• “A good faith belief in noncoverage is not relevant to a determination of the
reasonableness of a settlement offer.” (Samson v. Transamerica Insurance Co.
(1981) 30 Cal.3d 220, 243 [178 Cal.Rptr. 343, 636 P.2d 32], internal citation
omitted.)
• “An insurer that breaches its duty of reasonable settlement is liable for all the
insured’s damages proximately caused by the breach, regardless of policy limits.
Where the underlying action has proceeded to trial and a judgment in excess of
the policy limits has been entered against the insured, the insurer is ordinarily
liable to its insured for the entire amount of that judgment, excluding any
punitive damages awarded.” (Hamilton, supra, 27 Cal.4th at p. 725, internal
citations omitted.)
• “[I]nsurers do have a ‘selfish’ interest (that is, one that is peculiar to themselves)
in imposing a blanket rule which effectively precludes disclosure of policy
limits, and that interest can adversely affect the possibility that an excess claim
against a policyholder might be settled within policy limits. Thus, a palpable
conflict of interest exists in at least one context where there is no formal
settlement offer. We therefore conclude that a formal settlement offer is not an
absolute prerequisite to a bad faith action in the wake of an excess verdict when
the claimant makes a request for policy limits and the insurer refuses to contact
the policyholder about the request.” (Boicourt v. Amex Assurance Co. (2000) 78
Cal.App.4th 1390, 1398–1399 [93 Cal.Rptr.3d 763].)
• “For bad faith liability to attach to an insurer’s failure to pursue settlement
discussions, in a case where the insured is exposed to a judgment beyond policy
limits, there must be, at a minimum, some evidence either that the injured party
has communicated to the insurer an interest in settlement, or some other
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circumstance demonstrating the insurer knew that settlement within policy limits
could feasibly be negotiated. In the absence of such evidence, or evidence the
insurer by its conduct has actively foreclosed the possibility of settlement, there
is no ‘opportunity to settle’ that an insurer may be taxed with ignoring.” (Reid v.
Mercury Ins. Co. (2013) 220 Cal.App.4th 262, 272 [162 Cal.Rptr.3d 894].)
• “[F]ailing to accept a reasonable settlement offer does not necessarily constitute
bad faith. ‘[T]he crucial issue is . . . the basis for the insurer’s decision to reject
an offer of settlement.’ ‘[M]ere errors by an insurer in discharging its obligations
to its insured “ ‘does not necessarily make the insurer liable in tort for violating
the covenant of good faith and fair dealing; to be liable in tort, the insurer’s
conduct must also have been unreasonable.’ ” ’ ” (Pinto, supra, 61 Cal.App.5th
at p. 688, original italics, internal citations omitted.)
• “In short, so long as insurers are not subject to a strict liability standard, there is
still room for an honest, innocent mistake.” (Walbrook Ins. Co. Ltd. v. Liberty
Mut. Ins. Co. (1992) 5 Cal.App.4th 1445, 1460 [7 Cal.Rptr.2d 513, 521].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 366–368
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-A, Implied
Covenant Liability—Introduction, ¶¶ 12:202–12:224 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-B, Bad
Faith Refusal To Settle, ¶¶ 12:226–12:548 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-C, Bad
Faith Liability Despite Settlement Of Third Party Claims, ¶¶ 12:575–12:581.12 (The
Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-D, Refusal
To Defend Cases, ¶¶ 12:582–12:686 (The Rutter Group)
2 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar)
Actions for Failure to Settle, §§ 26.1–26.35
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.07[1]–[3] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.195, 120.199,
120.205, 120.207 (Matthew Bender)
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2335. Bad Faith—Advice of Counsel
[Name of defendant] did not breach the obligation of good faith and fair
dealing if it reasonably relied on the advice of its lawyer. [Name of
defendant]’s reliance was reasonable if:
1. [Name of defendant] acted in reliance on the opinion and advice of
its lawyer;
2. The lawyer’s advice was based on full disclosure by [name of
defendant] of all relevant facts that it knew, or could have
discovered with reasonable effort;
3. [Name of defendant] reasonably believed the advice of the lawyer
was correct; [and]
4. In relying on its lawyer’s advice, [name of defendant] gave at least
as much consideration to [name of plaintiff]’s interest as it gave its
own interest; [and]
[5. [Name of defendant] was willing to reconsider and act accordingly
when it determined that the lawyer’s advice was incorrect.]
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
The “advice of counsel defense” is not a true affirmative defense, but rather negates
an essential element of the insured’s cause of action for bad faith. (See State Farm
Mutual Automobile Insurance Co. v. Superior Court (1991) 228 Cal.App.3d 721,
725–726 [279 Cal.Rptr. 116].)
Advice of counsel is irrelevant, however, when an insurer denies coverage and for
that reason refuses a reasonable settlement offer. (See, e.g., Johansen v. California
State Auto. Asso. Inter-Insurance Bureau (1975) 15 Cal.3d 9, 16 [123 Cal.Rptr. 288,
538 P.2d 744] [“an insurer’s ‘good faith,’ though erroneous, belief in noncoverage
affords no defense to liability flowing from the insurer’s refusal to accept a
reasonable settlement offer”].)
Sources and Authority
• “An insurer may defend itself against allegations of bad faith and malice in
claims handling with evidence the insurer relied on the advice of competent
counsel. The defense of advice of counsel is offered to show the insurer had
‘proper cause’ for its actions even if the advice it received is ultimately unsound
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or erroneous.” (State Farm Mutual Automobile Insurance Co., supra, 228
Cal.App.3d at p. 725, internal citations omitted.)
• “If the insurer has exercised good faith in all of its dealings under its policy, and
if the settlement which it has rejected has been fully and fairly considered and
has been based upon an honest belief that the insurer could defeat the action or
keep any possible judgment within the limits of the policy, and its judgments are
based on a fair review of the evidence after reasonable diligence in ascertaining
the facts, and upon sound legal advice, a court should not subject the insurer to
further liability if it ultimately turns out that its judgment is a mistaken judgment
. . . .” (State Farm Mutual Automobile Insurance Co., supra, 228 Cal.App.3d at
p. 725, internal citation omitted.)
• “[I]t is a complete defense to a claim of extreme and outrageous conduct when
the evidence shows (1) the defendant acted on the opinion and advice of
counsel; (2) counsel’s advice was based on full disclosure of all the facts by
defendant or the advice was initiated by counsel based on counsel’s familiarity
with the case; and (3) the defendant’s reliance on the advice of counsel was in
good faith.” (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d
931, 936–937 [207 Cal.Rptr. 47] [intentional infliction of emotional distress
action].)
• “Good faith reliance on counsel’s advice simply negates allegations of bad faith
and malice as it tends to show the insurer had proper cause for its actions.
Because advice of counsel is directed to an essential element of a plaintiff’s
cause of action, it does not constitute new matter and need not be specifically
alleged.” (State Farm Mutual Automobile Insurance Co., supra, 228 Cal.App.3d
at. pp. 725–726.)
• “An insurer’s receipt of and reliance on [the written opinion of its legal counsel]
is a relevant circumstance to be considered on the issue of its alleged bad faith.”
(Mock v. Mich. Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 326, fn. 20 [5
Cal.Rptr.2d 594].)
• “Exemplary damages are not recoverable against a defendant who acts in good
faith and under the advice of counsel.” (Fox v. Aced (1957) 49 Cal.2d 381, 385
[317 P.2d 608].)
• “A good faith belief in noncoverage is not relevant to a determination of the
reasonableness of a settlement offer.” (Samson v. Transamerica Insurance Co.
(1981) 30 Cal.3d 220, 243 [178 Cal.Rptr. 343, 636 P.2d 32], internal citation
omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12D-G, Insurer’s
Reliance on Advice of Counsel, ¶¶ 12:1248–12:1260 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) General
Principles of Contract and Bad Faith Actions, §§ 24.52–24.55
2 California Uninsured Motorist Law, Ch. 21, Defending an Uninsured Motorist
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Claim, §§ 21.20, 21.31 (Matthew Bender)
6 Levy et al., California Torts, Ch. 82, Claims and Disputes Under Insurance
Policies, § 82.55 (Matthew Bender)
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2336. Bad Faith (Third Party)—Unreasonable Failure to
Defend—Essential Factual Elements
[Name of plaintiff] claims [he/she/nonbinary pronoun/it] was harmed by
[name of defendant]’s breach of the obligation of good faith and fair
dealing because [name of defendant] failed to defend [name of plaintiff] in
a lawsuit that was brought against [him/her/nonbinary pronoun/it]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was insured under an insurance policy
with [name of defendant];
2. That a lawsuit was brought against [name of plaintiff];
3. That [name of plaintiff] gave [name of defendant] timely notice that
[he/she/nonbinary pronoun/it] had been sued;
4. That [name of defendant], unreasonably, that is, without proper
cause, failed to defend [name of plaintiff] against the lawsuit;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New October 2004; Revised December 2007, December 2014, December 2015
Directions for Use
The instructions in this series assume that the plaintiff is an insured and the
defendant is the insurer. The party designations may be changed if appropriate to the
facts of the case.
The court will decide the issue of whether the claim was potentially covered by the
policy. (See California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175
Cal.App.3d 1, 52 [221 Cal.Rptr. 171].) If coverage depends on an unresolved
dispute over a factual question, the very existence of that dispute establishes a
possibility of coverage and thus a duty to defend. (North Counties Engineering, Inc.
v. State Farm General Ins. Co. (2014) 224 Cal.App.4th 902, 922 [169 Cal.Rptr.3d
726].) Therefore, the jury does not resolve factual disputes that determine coverage.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “A breach of the duty to defend in itself constitutes only a breach of contract,
but it may also violate the covenant of good faith and fair dealing where it
involves unreasonable conduct or an action taken without proper cause. On the
other hand, ‘[i]f the insurer’s refusal to defend is reasonable, no liability will
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result.’ ” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. 78
Cal.App.4th 847, 881 [93 Cal.Rptr.2d 364], internal citations omitted.)
• “To prevail in an action seeking declaratory relief on the question of the duty to
defend, ‘the insured must prove the existence of a potential for coverage, while
the insurer must establish the absence of any such potential. In other words, the
insured need only show that the underlying claim may fall within policy
coverage; the insurer must prove it cannot.’ The duty to defend exists if the
insurer ‘becomes aware of, or if the third party lawsuit pleads, facts giving rise
to the potential for coverage under the insuring agreement.’ ” (Delgado v.
Interinsurance Exchange of Automobile Club of Southern California (2009) 47
Cal.4th 302, 308 [97 Cal.Rptr.3d 298, 211 P.3d 1083], original italics, internal
citation omitted.)
• “ ‘[A]n insurer has a duty to defend an insured if it becomes aware of, or if the
third party lawsuit pleads, facts giving rise to the potential for coverage under
the insuring agreement. . . . This duty . . . is separate from and broader than
the insurer’s duty to indemnify. . . .’ ‘ “[F]or an insurer, the existence of a duty
to defend turns not upon the ultimate adjudication of coverage under its policy
of insurance, but upon those facts known by the insurer at the inception of a
third party lawsuit. . . . Hence, the duty ‘may exist even where coverage is in
doubt and ultimately does not develop.’ . . .” . . .’ ” (State Farm Fire &
Casualty Co. v. Superior Court (2008) 164 Cal.App.4th 317, 323 [78 Cal.Rptr.3d
828], internal citations omitted.)
• “If any facts stated or fairly inferable in the complaint, or otherwise known or
discovered by the insurer, suggest a claim potentially covered by the policy, the
insurer’s duty to defend arises and is not extinguished until the insurer negates
all facts suggesting potential coverage. On the other hand, if, as a matter of law,
neither the complaint nor the known extrinsic facts indicate any basis for
potential coverage, the duty to defend does not arise in the first instance.” (GGIS
Ins. Services, Inc. v. Superior Court (2008) 168 Cal.App.4th 1493, 1506 [86
Cal.Rptr.3d 515].)
• “ ‘The proper focus is on the facts alleged in the complaint, rather than the
alleged theories for recovery. . . . “The ultimate question is whether the facts
alleged ‘fairly apprise’ the insurer that the suit is upon a covered claim.” ’ ”
(Albert v. Truck Ins. Exchange (2018) 23 Cal. App. 5th 367, 378 [232
Cal.Rptr.3d 774].)
• “The duty to defend was not a question of fact for the jury; the trial court was
compelled to determine as a matter of law that [indemnitee]’s claim was
embraced by the indemnity agreement.” (Centex Homes v. R-Help Construction
Co., Inc. (2019) 32 Cal.App.5th 1230, 1236 [244 Cal.Rptr.3d 574].)
• “A duty to defend can be extinguished only prospectively and not
retrospectively.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc.
(2016) 6 Cal.App.5th 1258, 1284 [212 Cal.Rptr.3d 231].)
• “[F]acts known to the insurer and extrinsic to the third party complaint can
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generate a duty to defend, even though the face of the complaint does not reflect
a potential for liability under the policy. [Citation.] This is so because current
pleading rules liberally allow amendment; the third party plaintiff cannot be the
arbiter of coverage.” (Tidwell Enterprises, Inc. v. Financial Pacific Ins. Co., Inc.
(2016) 6 Cal.App.5th 100, 106 [210 Cal.Rptr.3d 634].)
• “An insurer does not have a continuing duty to investigate the potential for
coverage if it has made an informed decision on coverage at the time of tender.
However, where the information available at the time of tender shows no
coverage, but information available later shows otherwise, a duty to defend may
then arise.” (American States Ins. Co. v. Progressive Casualty Ins. Co. (2009)
180 Cal.App.4th 18, 26 [102 Cal.Rptr.3d 591], internal citations omitted.)
• “The duty does not depend on the labels given to the causes of action in the
underlying claims against the insured; ‘instead it rests on whether the alleged
facts or known extrinsic facts reveal a possibility that the claim may be covered
by the policy.’ ” (Travelers Property Casualty Co. of America v. Charlotte Russe
Holding, Inc. (2012) 207 Cal.App.4th 969, 976 [144 Cal.Rptr.3d 12], original
italics, disapproved on other grounds in Hartford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 295 [172 Cal.Rptr.3d 653, 326 P.3d
253].)
• “The obligation of the insurer to defend is of vital importance to the insured. ‘In
purchasing his insurance the insured would reasonably expect that he would
stand a better chance of vindication if supported by the resources and expertise
of his insurer than if compelled to handle and finance the presentation of his
case. He would, moreover, expect to be able to avoid the time, uncertainty and
capital outlay in finding and retaining an attorney of his own.’ ‘The insured’s
desire to secure the right to call on the insurer’s superior resources for the
defense of third party claims is, in all likelihood, typically as significant a
motive for the purchase of insurance as is the wish to obtain indemnity for
possible liability.’ ” (Amato v. Mercury Casualty Co. (Amato II) (1997) 53
Cal.App.4th 825, 831–832 [61 Cal.Rptr.2d 909], internal citations omitted.)
• “An anomalous situation would be created if, on the one hand, an insured can
sue for the tort of breach of the implied covenant if the insurer accepts the
defense and later refuses a reasonable settlement offer, but, on the other hand, an
insured is denied tort recovery if the insurer simply refuses to defend. . . . This
dichotomy could have the effect of encouraging an insurer to stonewall the
insured at the outset by simply refusing to defend.” (Campbell v. Superior Court
(1996) 44 Cal.App.4th 1308, 1319–1320 [52 Cal.Rptr.2d 385].)
• “[T]he mere existence of a legal dispute does not create a potential for coverage:
‘However, we have made clear that where the third party suit never presented
any potential for policy coverage, the duty to defend does not arise in the first
instance, and the insurer may properly deny a defense. Moreover, the law
governing the insurer’s duty to defend need not be settled at the time the insurer
makes its decision.’ ” (Griffın Dewatering Corp. v. Northern Ins. Co. of New
York (2009) 176 Cal.App.4th 172, 209 [97 Cal.Rptr.3d 568], original italics.)
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• “The trial court erroneously thought that because the case law was ‘unsettled’
when the insurer first turned down the claim, that unsettledness created a
potential for a covered claim. . . . [I]f an insurance company’s denial of
coverage is reasonable, as shown by substantial case law in favor of its position,
there can be no bad faith even though the insurance company’s position is later
rejected by our state Supreme Court.” (Griffın Dewatering Corp., supra, 176
Cal.App.4th at p. 179, original italics.)
• “Unresolved factual disputes impacting insurance coverage do not absolve the
insurer of its duty to defend. ‘If coverage depends on an unresolved dispute over
a factual question, the very existence of that dispute would establish a possibility
of coverage and thus a duty to defend.’ ” (Howard v. American National Fire
Insurance Company (2010) 187 Cal.App.4th 498, 520 [115 Cal.Rptr.3d 42].)
• “ ‘If the insurer is obliged to take up the defense of its insured, it must do so as
soon as possible, both to protect the interests of the insured, and to limit its own
exposure to loss. . . . [T]he duty to defend must be assessed at the outset of the
case.’ It follows that a belated offer to pay the costs of defense may mitigate
damages but will not cure the initial breach of duty.” (Shade Foods, Inc., supra,
78 Cal.App.4th at p. 881, internal citations omitted.)
• “When a complaint states multiple claims, some of which are potentially covered
by the insurance policy and some of which are not, it is a mixed action. In these
cases, ‘the insurer has a duty to defend as to the claims that are at least
potentially covered, having been paid premiums by the insured therefor, but does
not have a duty to defend as to those that are not, not having been paid
therefor.’ However, in a ‘ “mixed” action, the insurer has a duty to defend the
action in its entirety.’ Thereafter, the insurance company is entitled to seek
reimbursement for the cost of defending the claims that are not potentially
covered by the policy.” (Gonzalez v. Fire Ins. Exchange (2015) 234 Cal.App.4th
1220, 1231 [184 Cal.Rptr.3d 394], internal citations omitted.)
• “No tender of defense is required if the insurer has already denied coverage of
the claim. In such cases, notice of suit and tender of the defense are excused
because other insurer has already expressed its unwillingness to undertake the
defense.” (Croskey et al., California Practice Guide: Insurance Litigation, Ch.
12D-G, Insurer’s Reliance on Advice of Counsel ¶ 7:614 (The Rutter Group).)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, §§ 427, 428
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-D, Third
Party Cases—Refusal To Defend Cases, ¶¶ 12:598–12:650.5 (The Rutter Group)
2 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar)
Actions for Failure to Defend, §§ 25.1–26.38
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.08 (Matthew Bender)
6 Levy et al., California Torts, Ch. 82, Claims and Disputes Under Insurance
Policies, §§ 82.10–82.16 (Matthew Bender)
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26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
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2337. Factors to Consider in Evaluating Insurer’s Conduct
In determining whether [name of defendant] acted unreasonably, that is,
without proper cause, you may consider whether the defendant did any
of the following:
[(a) Misrepresented to [name of plaintiff] relevant facts or
insurance policy provisions relating to any coverage at issue.]
[(b) Failed to acknowledge and act reasonably promptly after
receiving communications about [name of plaintiff]’s claim arising
under the insurance policy.]
[(c) Failed to adopt and implement reasonable standards for the
prompt investigation and processing of claims arising under its
insurance policies.]
[(d) Failed to accept or deny coverage of claims within a
reasonable time after [name of plaintiff] completed and submitted
proof-of-loss requirements.]
[(e) Did not attempt in good faith to reach a prompt, fair, and
equitable settlement of [name of plaintiff]’s claim after liability
had become reasonably clear.]
[(f) Required [name of plaintiff] to file a lawsuit to recover
amounts due under the policy by offering substantially less than
the amount that [he/she/nonbinary pronoun/it] ultimately recovered
in the lawsuit, even though [name of plaintiff] had made a claim
for an amount reasonably close to the amount ultimately
recovered.]
[(g) Attempted to settle [name of plaintiff]’s claim for less than the
amount to which a reasonable person would have believed [name
of plaintiff] was entitled by referring to written or printed
advertising material accompanying or made part of the
application.]
[(h) Attempted to settle the claim on the basis of an application
that was altered without notice to, or knowledge or consent of,
[name of plaintiff], [his/her/nonbinary pronoun/its] representative,
agent, or broker.]
[(i) Failed, after payment of a claim, to inform [name of plaintiff]
at [his/her/nonbinary pronoun/its] request, of the coverage under
which payment was made.]
[(j) Informed [name of plaintiff] of its practice of appealing from
arbitration awards in favor of insureds or claimants for the
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purpose of forcing them to accept settlements or compromises less
than the amount awarded in arbitration.]
[(k) Delayed the investigation or payment of the claim by
requiring [name of plaintiff], [or [his/her/nonbinary pronoun]
physician], to submit a preliminary claim report, and then also
required the submission of formal proof-of-loss forms, both of
which contained substantially the same information.]
[(l) Failed to settle a claim against [name of plaintiff] promptly
once [his/her/nonbinary pronoun/its] liability had become apparent,
under one portion of the insurance policy coverage in order to
influence settlements under other portions of the insurance policy
coverage.]
[(m) Failed to promptly provide a reasonable explanation of its
reasons for denying the claim or offering a compromise
settlement, based on the provisions of the insurance policy in
relation to the facts or applicable law.]
[(n) Directly advised [name of plaintiff] not to hire an attorney.]
[(o) Misled [name of plaintiff] as to the applicable statute of
limitations, that is, the date by which an action against [name of
defendant] on the claim had to be filed.]
[(p) Delayed the payment or provision of hospital, medical, or
surgical benefits for services provided with respect to acquired
immune deficiency syndrome (AIDS) or AIDS-related complex for
more than 60 days after it had received [name of plaintiff]’s claim
for those benefits, doing so in order to investigate whether [name
of plaintiff] had the condition before obtaining the insurance
coverage. However, the 60-day period does not include any time
during which [name of defendant] was waiting for a response for
relevant medical information from a healthcare provider.]
The presence or absence of any of these factors alone is not enough to
determine whether [name of defendant]’s conduct was or was not
unreasonable, that is, without proper cause. You must consider [name of
defendant]’s conduct as a whole in making this determination.
New April 2008; Revised December 2015, May 2020
Directions for Use
Although there is no private cause of action under Insurance Code section 790.03(h)
(see Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287,
304–305 [250 Cal.Rptr. 116, 758 P.2d 58]), this instruction may be given in an
insurance bad-faith action to assist the jury in determining whether the insurer’s
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conduct was unreasonable or without proper cause. (See Jordan v. Allstate Ins. Co.
(2007) 148 Cal.App.4th 1062, 1078 [56 Cal.Rptr.3d 312], internal citations omitted.)
Include only the factors that are relevant to the case.
Sources and Authority
• Bad-Faith Insurance Practices. Insurance Code section 790.03.
• “[Plaintiff] was not seeking to recover on a claim based on a violation of
Insurance Code section 790.03, subdivision (h). Rather, her claim was based on
a claim of common law bad faith arising from [defendant]’s breach of the
implied covenant of good faith and fair dealing which she is entitled to pursue.
[Plaintiff]’s reliance upon the [expert’s] declaration was for the purpose of
providing evidence supporting her contention that [defendant] had breached the
implied covenant by its actions. This is a proper use of evidence of an insurer’s
violations of the statute and the corresponding regulations.” (Jordan, supra, 148
Cal.App.4th at p. 1078, original italics, internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance §§ 360, 361, 365,
461
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 14-A, Statutory
and Administrative Regulation—The California Regulator, ¶ 14:109 et seq. (The
Rutter Group)
1 California Liability Insurance Practice: Claims and Litigation, Ch. 24, General
Principles of Contract and Bad Faith (Cont.Ed.Bar) § 24.30 et seq.
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.25
(Matthew Bender)
1 Rushing et al., Matthew Bender Practice Guide: California Unfair Competition
and Business Torts, Ch. 2, Unfair Competition, 2.11 (Matthew Bender)
2338–2349. Reserved for Future Use
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2350. Damages for Bad Faith
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
The amount of damages must include an award for all harm that was
caused by [name of defendant], even if the particular harm could not have
been anticipated.
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. [Mental suffering/anxiety/humiliation/emotional distress;] [and]
2. [The cost of attorney fees to recover the insurance policy
benefits;] [and]
3. [Insert other applicable item of damage.]
[No fixed standard exists for deciding the amount of damages for [insert
item of mental or emotional distress]. You must use your judgment to
decide a reasonable amount based on the evidence and your common
sense.]
[To recover for future [insert item of mental or emotional distress], [name
of plaintiff] must prove that [he/she/nonbinary pronoun] is reasonably
certain to suffer that harm.]
[To recover attorney fees [name of plaintiff] must prove that because of
[name of defendant]’s breach of the obligation of good faith and fair
dealing it was reasonably necessary for [him/her/nonbinary pronoun/it] to
hire an attorney to recover the policy benefits. [Name of plaintiff] may
recover attorney fees [he/she/nonbinary pronoun/it] incurred to obtain
policy benefits but not attorney fees [he/she/nonbinary pronoun/it]
incurred for other purposes.]
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
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For instructions on damages for pain and suffering, see CACI No. 3905, Items of
Noneconomic Damage, and CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage). For instructions on punitive damages,
see other instructions in the Damages series.
Sources and Authority
• “When an insurer’s tortious conduct reasonably compels the insured to retain an
attorney to obtain the benefits due under a policy, it follows that the insurer
should be liable in a tort action for that expense. The attorney’s fees are an
economic loss—damages—proximately caused by the tort.” (Brandt v. Superior
Court (1985) 37 Cal.3d 813, 817 [210 Cal.Rptr. 211, 693 P.2d 796].)
• “The fees recoverable . . . may not exceed the amount attributable to the
attorney’s efforts to obtain the rejected payment due on the insurance contract.
Fees attributable to obtaining any portion of the plaintiff’s award which exceeds
the amount due under the policy are not recoverable. [¶] Since the attorney’s
fees are recoverable as damages, the determination of the recoverable fees must
be made by the trier of fact unless the parties stipulate otherwise.” (Brandt,
supra, 37 Cal.3d at p. 819.)
• “If . . . the matter is to be presented to the jury, the court should instruct along
the following lines: ‘If you find (1) that the plaintiff is entitled to recover on his
cause of action for breach of the implied covenant of good faith and fair dealing,
and (2) that because of such breach it was reasonably necessary for the plaintiff
to employ the services of an attorney to collect the benefits due under the policy,
then and only then is the plaintiff entitled to an award for attorney’s fees
incurred to obtain the policy benefits, which award must not include attorney’s
fees incurred to recover any other portion of the verdict.’ ” (Brandt, supra, 37
Cal.3d at p. 820.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 13-B,
Extracontractual Compensatory Damages, ¶¶ 13:120–13:144 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) General
Principles of Contract and Bad Faith Actions, §§ 24.70–24.71
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.03[5][c] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 25, Uninsured Motorist Bad Faith
Litigation, §§ 25.40–25.44 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
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2351. Insurer’s Claim for Reimbursement of Costs of Defense of
Uncovered Claims
[Name of insurer] claims that it is entitled to partial reimbursement from
[name of insured] for the costs that it spent in defending [name of insured]
in the lawsuit brought by [name of plaintiff in underlying suit] against
[name of insured]. [Name of insurer] may obtain reimbursement only for
those defense costs that it proves can be allocated solely to claims that
are not even potentially covered by the insurance policy.
I have determined that the following claims in [name of plaintiff in
underlying suit]’s lawsuit were not even potentially covered by the policy:
[specify]. You must determine the dollar amount of [name of insurer]’s
costs of defense that were attributable only to these claims. Costs for
work that also helped the defense of the other claims that were
potentially covered should not be included.
New December 2015
Directions for Use
This instruction is for use if the insurer has provided a defense under a reservation
of rights to deny indemnity if coverage cannot be established. In such a case, the
insurer can seek reimbursement of the cost of defense that can be allocated solely to
claims for which there was no possible potential coverage. (Buss v. Superior Court
(1997) 16 Cal.4th 35, 57–58 [65 Cal.Rptr.2d 366, 939 P.2d 766].)
If the insurer denies a defense, but the court finds that there is coverage for some
but not all claims in the underlying case, it would appear that the insured can
recover all costs of defense from the insurer. The insurer is not entitled to apportion
the costs of defense (damages) between covered and uncovered claims if it denies a
defense. (See Hogan v. Midland Nat’l Ins. Co. (1970) 3 Cal.3d 553, 563–564 [91
Cal.Rptr. 153, 476 P.2d 825].) Therefore, this instruction may not be modified for
use in a denial-of-coverage case.
Sources and Authority
• “An insurer may obtain reimbursement only for defense costs that can be
allocated solely to the claims that are not even potentially covered. To do that, it
must carry the burden of proof as to these costs by a preponderance of the
evidence. And to do that, . . . it must accomplish a task that, ‘if ever feasible,”
may be “extremely difficult.’ ” (Buss, supra, 16 Cal.4th at pp. 57–58, original
italics.)
• “Whether [insurer] will be able to carry its burden of proof by a preponderance
of the evidence that specific costs can be allocated solely to the causes of action
that were not even potentially covered is far from plain. But there is at least a
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triable issue of material fact that it can. It must be allowed the attempt.” (Buss,
supra, 16 Cal.4th at p. 61.)
• “By law applied in hindsight, courts can determine that no potential for
coverage, and thus no duty to defend, ever existed. If that conclusion is reached,
the insurer, having reserved its right, may recover from its insured the costs it
expended to provide a defense which, under its contract of insurance, it was
never obliged to furnish.” (Scottsdale Ins. Co. v. MV Transportation (2005) 36
Cal.4th 643, 658 [31 Cal.Rptr.3d 147, 115 P.3d 460].)
• “The ultimate determination that the loss was caused by a noncovered
occurrence does not mean that [third party]’s lawsuit (and [developer]’s cross-
complaint) never presented any potential for policy coverage. If that were so, a
determination an insurer has no duty to indemnify would automatically
extinguish the duty to defend retrospectively and give the insurer the right to
seek reimbursement from the insured. That result is inconsistent with the firmly
established principle that the duty to defend is broader than the duty to
indemnify.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc.
(2016) 6 Cal.App.5th 1258, 1285 [212 Cal.Rptr.3d 231], original italics.)
• “ ‘Under the policy, the insurer does not have a duty to defend the insured as to
the claims that are not even potentially covered. With regard to defense costs for
these claims, the insurer has not been paid premiums by the insured. It did not
bargain to bear these costs. . . . The “enrichment” of the insured by the insurer
through the insurer’s bearing of unbargained-for defense costs is inconsistent
with the insurer’s freedom under the policy and therefore must be deemed
‘unjust.’ ” If [insurer], after providing an entire defense, can prove that a claim
was ‘not even potentially covered because it did not even possibly embrace any
triggering harm of the specified sort within its policy period or periods caused
by an included occurrence,’ it should have that opportunity. This task ‘ “if ever
feasible,” may be “extremely difficult.” ’ ” (State v. Pac. Indem. Co. (1998) 63
Cal.App.4th 1535, 1550 [75 Cal.Rptr.2d 69], internal citations omitted.)
• “The cases which have considered apportionment of attorneys’ fees upon the
wrongful refusal of an insurer to defend an action against its insured generally
have held that the insurer is liable for the total amount of the fees despite the
fact that some of the damages recovered in the action against the insured were
outside the coverage of the policy.” (Hogan, supra, 3 Cal.3d at p. 564.)
• “The insurer, not the insured, has the burden of proving by a preponderance of
the evidence that ‘the settlement payments were allocable to claims not actually
covered, and the defense costs were allocable to claims not even potentially
covered.’ ” (Navigators Specialty Ins. Co, supra, 6 Cal.App.5th at p. 1287.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, § 381
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.08 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.123
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(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.51 (Matthew
Bender)
2352–2359. Reserved for Future Use
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2360. Judgment Creditor’s Action Against Insurer—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] must pay [all or part
of] a judgment against [name of insured]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] brought a lawsuit for [personal injury/
wrongful death/property damage] against [name of insured] and a
judgment was entered against [name of insured];
2. That [all or part of] [name of insured]’s liability under the
judgment is covered by an insurance policy with [name of
defendant]; and
3. The amount of the judgment [covered by the policy].
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
This instruction is intended for a judgment creditor’s action against an insurer to
collect on an insurance policy pursuant to Insurance Code section 11580(b)(2). This
instruction should be used only where there are factual issues on any of the above
elements. This instruction may need to be augmented with instructions on specific
factual findings.
Note that Insurance Code section 11580 requires that the policy be “issued or
delivered to [a] person in this state.” This issue should be added as an element if it
is disputed in the case.
Sources and Authority
• Judgment Creditor’s Action Against Insurer. Insurance Code section 11580(b)(2).
• “A direct action under section 11580 is a contractual action on the policy to
satisfy a judgment up to policy limits.” (Wright v. Fireman’s Fund Insurance Co.
(1992) 11 Cal.App.4th 998, 1015 [14 Cal.Rptr.2d 588].)
• “[I]t is not necessary for property damage to be caused by a vehicle or draught
animal in order to bring a direct action against an insurer under section 11580.”
(People ex rel. City of Willits v. Certain Underwriters at Lloyd’s of London
(2002) 97 Cal.App.4th 1125, 1131–1132].)
• “Because the insurer’s duties flow to its insured alone, a third party claimant
may not bring a direct action against an insurance company. As a general rule, a
third party may directly sue an insurer only when there has been an assignment
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of rights by, or a final judgment against, the insured.” (Shaolian v. Safeco
Insurance Co. (1999) 71 Cal.App.4th 268, 271 [83 Cal.Rptr.2d 702], internal
citations omitted.)
• “Under section 11580 a third party claimant bringing a direct action against an
insurer should . . . prove 1) it obtained a judgment for bodily injury, death, or
property damage, 2) the judgment was against a person insured under a policy
that insures against [the] loss or damage . . . , 3) the liability insurance policy
was issued by the defendant insurer, 4) the policy covers the relief awarded in
the judgment, 5) the policy either contains a clause that authorizes the claimant
to bring an action directly against the insurer or the policy was issued or
delivered in California and insures against [the] loss or damage . . . .” (Wright,
supra, 11 Cal.App.4th at p. 1015.)
• “Under Insurance Code section 11580, a third party creditor bringing a direct
action against an insurer to recover the proceeds of an insurance policy must
plead and prove not only that it obtained a judgment for bodily injury, but that
‘the judgment was against a person insured under a policy . . .’ and ‘the policy
covers the relief awarded in the judgment . . . .’ ” (Miller v. American Home
Assurance Co. (1996) 47 Cal.App.4th 844, 847–848 [54 Cal.Rptr.2d 765],
original italics, internal citation omitted.)
• “[Insurance Code Section 11580(b)(2)] and the standard policy language permit
an action against an insurer only when the underlying judgment is final and
‘final,’ for this purpose, means an appeal from the underlying judgment has been
concluded or the time within which to appeal has passed.” (McKee v. National
Union Fire Insurance Co. of Pittsburgh, PA. (1993) 15 Cal.App.4th 282, 285 [19
Cal.Rptr.2d 286].)
• “[W]here the insurer may be subject to a direct action under Insurance Code
section 11580 by a judgment creditor who has or will obtain a default judgment
in a third party action against the insured, intervention is appropriate. . . . Where
an insurer has failed to intervene in the underlying action or to move to set aside
the default judgment, the insurer is bound by the default judgment.” (Reliance
Insurance Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386–387 [100
Cal.Rptr.2d 807], internal citations omitted.)
• “The [standard] ‘no action’ clause gives the insurer the right to control the
defense of the claim—to decide whether to settle or to adjudicate the claim on
its merits. When the insurer provides a defense to its insured, the insured has no
right to interfere with the insurer’s control of the defense, and a stipulated
judgment between the insured and the injured claimant, without the consent of
the insurer, is ineffective to impose liability upon the insurer.” (Safeco Ins. Co.
of Am. v. Superior Court (1999) 71 Cal.App.4th 782, 787 [84 Cal.Rptr.2d 43],
internal citations omitted.)
• A standard “no action” clause in an indemnity insurance policy “provides that
[the insurer] may be sued directly if the amount of the insured’s obligation to
pay was finally determined either by judgment against the insured after actual
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trial or by ‘written agreement of the insured, the claimant and the company.’ ”
(Rose v. Royal Insurance Co. of America (1991) 2 Cal.App.4th 709, 716–717 [3
Cal.Rptr.2d 483].)
• “[A] trial does not have to be adversarial to be considered an ‘actual trial’ under
the ‘no action’ clause, or to be considered binding against the insurer in a
section 11580 proceeding. . . . [W]e conclude that the term ‘actual trial’ in the
standard ‘no action’ clause has two components: (1) an independent adjudication
of facts based on an evidentiary showing; and (2) a process that does not create
the potential for abuse, fraud or collusion.” (National Union Fire Insurance Co.
v. Lynette C. (1994) 27 Cal.App.4th 1434, 1449 [33 Cal.Rptr.2d 496].)
• “A defending insurer cannot be bound by a settlement made without its
participation and without any actual commitment on its insured’s part to pay the
judgment, even where the settlement has been found to be in good faith for
purposes of [Code of Civil Procedure] section 877.6.” (Hamilton v. Maryland
Casualty Co. (2002) 27 Cal.4th 718, 730 [117 Cal.Rptr.2d 318, 41 P.3d 128].)
• “[W]hen . . . a liability insurer wrongfully denies coverage or refuses to provide
a defense, then the insured is free to negotiate the best possible settlement
consistent with his or her interests, including a stipulated judgment accompanied
by a covenant not to execute. Such a settlement will raise an evidentiary
presumption in favor of the insured (or the insured’s assignee) with respect to
the existence and amount of the insured’s liability. The effect of such
presumption is to shift the burden of proof to the insurer to prove that the
settlement was unreasonable or the product of fraud or collusion. If the insurer is
unable to meet that burden of proof then the stipulated judgment will be binding
on the insurer and the policy provision proscribing a direct action against an
insurer except upon a judgment against the insured after an ‘actual trial’ will not
bar enforcement of the judgment.” (Pruyn v. Agricultural Insurance Co. (1995)
36 Cal.App.4th 500, 509 [42 Cal.Rptr.2d 295].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-K, Judgment
Creditor’s Action to Enforce Judgment Debtor’s Liability Insurance,
¶¶ 15:1028–15:1077, 15:1123–15:1136 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Claimant’s Direct Action for Recovery of Judgment, §§ 27.1–27.7, 27.17–27.27
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§§ 41.60–41.63 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.186, 120.198,
120.206 (Matthew Bender)
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2361. Negligent Failure to Obtain Insurance Coverage—Essential
Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by [name of defendant]’s negligent failure to obtain insurance requested
by [him/her/nonbinary pronoun/it]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] requested [name of defendant] to obtain
[describe requested insurance] and [name of defendant] promised to
obtain that insurance for [him/her/nonbinary pronoun/it];
2. That [name of defendant] was negligent in failing to obtain the
promised insurance;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
The instructions in this series assume the plaintiff is the insured and the defendant is
the insurer. The party designations may be changed if appropriate to the facts of the
case.
For general tort instructions, including the definition of “substantial factor,” see the
Negligence series (CACI No. 400 et seq.).
Sources and Authority
• “California recognizes the general rule that an agent or broker who intentionally
or negligently fails to procure insurance as requested by a client—either an
insured or an applicant for insurance—will be liable to the client in tort for the
resulting damages.” (AMCO Ins. Co. v. All Solutions Ins. Agency, LLC (2016)
244 Cal.App.4th 883, 890 [198 Cal.Rptr.3d 687].)
• “A ‘failure to deliver the agreed-upon coverage’ case is actionable . . . . An
insurance agent has an ‘obligation to use reasonable care, diligence, and
judgment in procuring insurance requested by an insured.’ A broker’s failure to
obtain the type of insurance requested by an insured may constitute actionable
negligence and the proximate cause of injury.” (Desai v. Farmers Insurance
Exchange (1996) 47 Cal.App.4th 1110, 1119–1120 [55 Cal.Rptr.2d 276], internal
citations omitted.)
• “Absent some notice or warning, an insured should be able to rely on an agent’s
representations of coverage without independently verifying the accuracy of
those representations by examining the relevant policy provisions.” (Clement v.
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Smith (1993) 16 Cal.App.4th 39, 45 [19 Cal.Rptr.2d 676].)
• “[W]hile an insurance agent who promises to procure insurance will indeed be
liable for his negligent failure to do so, it does not follow that he can avoid
liability for foreseeable harm caused by his silence or inaction merely because
he has not expressly promised to assume responsibility.” (Westrick v. State Farm
Insurance (1982) 137 Cal.App.3d 685, 691 [187 Cal.Rptr. 214], internal citations
omitted.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 2-A, Agents and
Brokers, ¶¶ 2:50–2:64.2, 11:246–11:249 (The Rutter Group)
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar) Actions
Against Agents and Brokers, §§ 29.7–29.8
5 California Insurance Law & Practice, Ch. 61, Operating Requirements of Agents
and Brokers, § 61.04[3][a] (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.402 (Matthew
Bender)
2362–2399. Reserved for Future Use
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VF-2300. Breach of Contractual Duty to Pay a Covered Claim
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] suffer a loss, [all or part of] which was
covered under an insurance policy with [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] notified of the loss [as required by the
policy]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What is the amount of the covered loss that [name of defendant]
failed to pay [name of plaintiff]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 2300, Breach of Contractual Duty to Pay
a Covered Claim—Essential Factual Elements.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-2301. Breach of the Implied Obligation of Good Faith and Fair
Dealing—Failure or Delay in Payment
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] suffer a loss covered under an insurance
policy with [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] notified of the loss?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] [fail to pay/delay payment of] policy
benefits?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s [failure to pay/delay in payment of]
policy benefits, unreasonable or without proper cause?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s [failure to pay/delay in payment of]
policy benefits a substantial factor in causing harm to [name of
plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, April 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2331, Breach of the Implied Obligation of
Good Faith and Fair Dealing—Failure or Delay in Payment (First
Party)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If punitive damages are claimed, combine this form with the appropriate verdict
form numbering from VF-3900 to VF-3904.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2302. Reserved for Future Use
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VF-2303. Bad Faith (First Party)—Breach of Duty to Inform
Insured of Rights
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] suffer a loss covered under an insurance
policy with [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] [deny coverage for/refuse to pay] [name of
plaintiff]’s loss?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] have the [right/obligation] to [describe right
or obligation at issue; e.g., “to request arbitration within 180 days”]
under the policy?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] fail to reasonably inform [name of
plaintiff] of [his/her/nonbinary pronoun] [right/obligation] to
[describe right or obligation]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s failure to reasonably inform [name of
plaintiff] a substantial factor in causing harm to [name of
plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2333, Bad Faith (First Party)—Breach of
Duty to Inform Insured of Rights—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2304–VF-2399. Reserved for Future Use
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WRONGFUL TERMINATION
2400. Breach of Employment Contract—Unspecified Term—“At-Will”
Presumption
2401. Breach of Employment Contract—Unspecified Term—Actual or Constructive
Discharge—Essential Factual Elements
2402. Revoked November 2018
2403. Breach of Employment Contract—Unspecified Term—Implied-in-Fact
Promise Not to Discharge Without Good Cause
2404. Breach of Employment Contract—Unspecified Term—“Good Cause”
Defined
2405. Breach of Implied Employment Contract—Unspecified Term—“Good
Cause” Defined—Misconduct
2406. Breach of Employment Contract—Unspecified Term—Damages
2407–2419. Reserved for Future Use
2420. Breach of Employment Contract—Specified Term—Essential Factual
Elements
2421. Breach of Employment Contract—Specified Term—Good-Cause Defense
(Lab. Code, § 2924)
2422. Breach of Employment Contract—Specified Term—Damages
2423. Breach of Implied Covenant of Good Faith and Fair Dealing—Employment
Contract—Essential Factual Elements
2424. Affirmative Defense—Breach of the Implied Covenant of Good Faith and
Fair Dealing—Good Faith Though Mistaken Belief
2425–2429. Reserved for Future Use
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual
Elements
2431. Constructive Discharge in Violation of Public Policy—Plaintiff Required to
Violate Public Policy
2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to
Endure Intolerable Conditions That Violate Public Policy
2433–2440. Reserved for Future Use
2441. Discrimination Against Member of Military—Essential Factual Elements
(Mil. & Vet. Code, § 394)
2442–2499. Reserved for Future Use
VF-2400. Breach of Employment Contract—Unspecified Term
VF-2401. Breach of Employment Contract—Unspecified Term—Constructive
Discharge
VF-2402. Breach of Employment Contract—Specified Term
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VF-2403. Breach of Employment Contract—Specified Term—Good-Cause Defense
VF-2404. Employment—Breach of the Implied Covenant of Good Faith and Fair
Dealing
VF-2405. Breach of the Implied Covenant of Good Faith and Fair
Dealing—Affirmative Defense—Good Faith Mistaken Belief
VF-2406. Wrongful Discharge in Violation of Public Policy
VF-2407. Constructive Discharge in Violation of Public Policy—Plaintiff Required
to Violate Public Policy
VF-2408. Constructive Discharge in Violation of Public Policy—Plaintiff Required
to Endure Intolerable Conditions for Improper Purpose That Violates
Public Policy
VF-2409–VF-2499. Reserved for Future Use
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2400. Breach of Employment Contract—Unspecified Term—“At-
Will” Presumption
An employment relationship may be ended by either the employer or the
employee, at any time, for any [lawful] reason, or for no reason at all.
This is called “at-will employment.”
An employment relationship is not “at will” if the employee proves that
the parties, by words or conduct, agreed that [specify the nature of the
alleged agreement, e.g., the employee would be discharged only for good
cause].
New September 2003; Revised June 2006, November 2018
Directions for Use
If the plaintiff has made no claim other than the contract claim, then the word
“lawful” may be omitted. If the plaintiff has made a claim for wrongful termination
or violation of the Fair Employment and Housing Act, then the word “lawful”
should be included in order to avoid confusing the jury.
Sources and Authority
• At-Will Employment. Labor Code section 2922.
• Contract of Employment. Labor Code section 2750.
• “Labor Code section 2922 has been recognized as creating a presumption. The
statute creates a presumption of at-will employment which may be overcome ‘by
evidence that despite the absence of a specified term, the parties agreed that the
employer’s power to terminate would be limited in some way, e.g., by a
requirement that termination be based only on “good cause.” ’ ” (Haycock v.
Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1488 [28 Cal.Rptr.2d 248],
internal citations omitted.)
• “Where there is no express agreement, the issue is whether other evidence of the
parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of an
actual mutual understanding on particular terms and conditions of employment.
If such evidence logically permits conflicting inferences, a question of fact is
presented. But where the undisputed facts negate the existence or the breach of
the contract claimed, summary judgment is proper.” (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal
citations omitted.)
• “Because the presumption of at-will employment is premised upon public policy
considerations, it is one affecting the burden of proof. Therefore, even if no
substantial evidence was presented by defendants that plaintiff’s employment was
at-will, the presumption of Labor Code section 2922 required the issue to be
submitted to the jury.” (Alexander v. Nextel Communications, Inc. (1997) 52
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Cal.App.4th 1376, 1381–1382 [61 Cal.Rptr.2d 293], internal citations omitted.)
• “The presumption that an employment relationship of indefinite duration is
intended to be terminable at will is therefore ‘subject, like any presumption, to
contrary evidence. This may take the form of an agreement, express or implied,
that . . . the employment relationship will continue indefinitely, pending the
occurrence of some event such as the employer’s dissatisfaction with the
employee’s services or the existence of some “cause” for termination.’ ” (Foley
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765
P.2d 373], internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 244
Chin et al., California Practice Guide: Employment Litigation, Ch.4-A, Employment
Presumed At Will, ¶¶ 4:2–4:4 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.4-B, Agreements
Limiting At-Will Termination, ¶ 4:65 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.4–8.14
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, §§ 60.01–60.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.10, 249.11, 249.13, 249.21, 249.43[1], [8]
(Matthew Bender)
10 California Points and Authorities, Ch. 100, Wrongful Termination and Discipline,
§§ 100.20–100.23 (Matthew Bender)
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2401. Breach of Employment Contract—Unspecified Term—Actual
or Constructive Discharge—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] breached their
employment contract [by forcing [name of plaintiff] to resign]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into an
employment relationship. [An employment contract or a provision
in an employment contract may be [written or oral/partly written
and partly oral/created by the conduct of the parties]];
2. That [name of defendant] promised, by words or conduct, to
discharge [name of plaintiff] [specify the nature of the alleged
agreement, e.g., only for good cause];
3. That [name of plaintiff] substantially performed [his/her/nonbinary
pronoun] job duties [unless [name of plaintiff]’s performance was
excused [or prevented]];
4. That [name of defendant] [constructively] discharged [name of
plaintiff] [e.g., without good cause];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s breach of contract was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised November 2018
Directions for Use
Element 3 on substantial performance should not be confused with the “good cause”
defense: “The action is primarily for breach of contract. It was therefore incumbent
upon plaintiff to prove that he was able and offered to fulfill all obligations imposed
upon him by the contract. Plaintiff failed to meet this requirement; by voluntarily
withdrawing from the contract he excused further performance by defendant.” (Kane
v. Sklar (1954) 122 Cal.App.2d 480, 482 [265 P.2d 29], internal citation omitted.)
Element 3 may be deleted if substantial performance is not a disputed issue.
An employee may be “constructively” discharged if the employer intentionally
created or knowingly permitted working conditions to exist that were so intolerable
that a reasonable person would have had no reasonable alternative except to resign.
(Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 [32 Cal.Rptr.2d 223,
876 P.2d 1022].) If constructive rather than actual discharge is alleged, include “by
forcing [name of plaintiff] to resign” in the introductory paragraph and
“constructively” in element 4. Then also give CACI No. 2510, “Constructive
Discharge” Explained.
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Elements 2 and 4 may be modified for adverse employment actions other than
discharge, for example demotion. The California Supreme Court has extended the
implied contract theory to encompass adverse employment actions that violate the
terms of an implied contract. (See Scott v. Pac. Gas & Elec. Co. (1995) 11 Cal.4th
454, 473-474 [46 Cal.Rptr.2d 427, 904 P.2d 834].) See CACI No. 2509, “Adverse
Employment Action” Explained.
For an instruction on damages, give CACI No. 3903P, Damages From Employer for
Wrongful Discharge (Economic Damage). See also CACI No. 304, Oral or Written
Contract Terms, and CACI No. 305, Implied-in-Fact Contract.
Sources and Authority
• At-Will Employment. Labor Code section 2922.
• Contractual Conditions Precedent. Civil Code section 1439.
• “Where there is no express agreement, the issue is whether other evidence of the
parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of an
actual mutual understanding on particular terms and conditions of employment.
If such evidence logically permits conflicting inferences, a question of fact is
presented. But where the undisputed facts negate the existence or the breach of
the contract claimed, summary judgment is proper.” (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal
citations omitted.)
• The employee bears the ultimate burden of proving that he or she was
wrongfully terminated. (Pugh v. See’s Candies, Inc. (Pugh I) (1981) 116
Cal.App.3d 311, 330 [171 Cal.Rptr. 917].)
• “The presumption that an employment relationship of indefinite duration is
intended to be terminable at will is therefore ‘subject, like any presumption, to
contrary evidence. This may take the form of an agreement, express or implied,
that . . . the employment relationship will continue indefinitely, pending the
occurrence of some event such as the employer’s dissatisfaction with the
employee’s services or the existence of some “cause” for termination.’ ” (Foley
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765
P.2d 373], internal citation omitted.)
• “In Foley, we identified several factors, apart from express terms, that may bear
upon ‘the existence and content of an . . . [implied-in-fact] agreement’ placing
limits on the employer’s right to discharge an employee. These factors might
include ‘ “the personnel policies or practices of the employer, the employee’s
longevity of service, actions or communications by the employer reflecting
assurances of continued employment, and the practices of the industry in which
the employee is engaged.” ’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 336–337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• “Standing alone, constructive discharge is neither a tort nor a breach of contract,
but a doctrine that transforms what is ostensibly a resignation into a firing. Even
after establishing constructive discharge, an employee must independently prove
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a breach of contract or tort in connection with employment termination in order
to obtain damages for wrongful discharge.” (Turner v. Anheuser-Busch, Inc.
(1994) 7 Cal.4th 1238, 1251 [32 Cal.Rptr.2d 223, 876 P.2d 1022], original
italics, internal citation omitted.)
• “Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the employment
relationship is actually severed involuntarily by the employer’s acts, against the
employee’s will. As a result, a constructive discharge is legally regarded as a
firing rather than a resignation.” (Turner, supra, 7 Cal.4th at pp. 1244–1245,
internal citation omitted.)
• “In order to amount to a constructive discharge, adverse working conditions
must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the
situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts
of [misconduct] are insufficient’ to support a constructive discharge claim.
Moreover, a poor performance rating or a demotion, even when accompanied by
reduction in pay, does not by itself trigger a constructive discharge.” (Turner,
supra, 7 Cal.4th at p. 1247, internal citation and fns. omitted.)
• “Whether conditions were so intolerable as to justify a reasonable employee’s
decision to resign is normally a question of fact.” (Valdez v. City of Los Angeles
(1991) 231 Cal.App.3d 1043, 1056 [282 Cal.Rptr. 726].)
• “In some circumstances, a single intolerable incident, such as a crime of
violence against an employee by an employer, or an employer’s ultimatum that
an employee commit a crime, may constitute a constructive discharge. Such
misconduct potentially could be found ‘aggravated.’ ” (Turner, supra, 7 Cal.4th
at p. 1247, fn. 3.)
• “Each individual incident need not be sufficient standing alone to force a
resignation; rather, the accumulation of discriminatory treatment over time can
amount to intolerable working conditions.” (Brome v. California Highway Patrol
(2020) 44 Cal.App.5th 786, 801–802 [258 Cal.Rptr.3d 83].)
• “[T]he standard by which a constructive discharge is determined is an objective
one—the question is ‘whether a reasonable person faced with the allegedly
intolerable employer actions or conditions of employment would have no
reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248,
internal citations omitted.)
• “In order to establish a constructive discharge, an employee must plead and
prove, by the usual preponderance of the evidence standard, that the employer
either intentionally created or knowingly permitted working conditions that were
so intolerable or aggravated at the time of the employee’s resignation that a
reasonable employer would realize that a reasonable person in the employee’s
position would be compelled to resign. [¶] For purposes of this standard, the
requisite knowledge or intent must exist on the part of either the employer or
those persons who effectively represent the employer, i.e., its officers, directors,
managing agents, or supervisory employees.” (Turner, supra, 7 Cal.4th at p.
1251.)
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• “The length of time the plaintiff remained on the job may be one relevant factor
in determining the intolerability of employment conditions from the standpoint
of a reasonable person. Neither logic nor precedent suggests it should always be
dispositive.” (Turner, supra, 7 Cal.4th at p. 1254, original italics.)
• “ ‘Good cause’ or ‘just cause’ for termination connotes ‘ “a fair and honest cause
or reason,” ’ regulated by the good faith of the employer. The term is relative.
Whether good cause exists is dependent upon the particular circumstances of
each case. In deciding whether good cause exists, there must be a balance
between the employer’s interest in operating its business efficiently and
profitably and the employee’s interest in continued employment. Care must be
exercised so as not to interfere with the employer’s legitimate exercise of
managerial discretion. While the scope of such discretion is substantial, it is not
unrestricted. Good cause is not properly found where the asserted reasons for
discharge are ‘trivial, capricious, unrelated to business needs or goals, or
pretextual.’ Where there is a contract to terminate only for good cause, the
employer has no right to terminate for an arbitrary or unreasonable decision.”
(Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 994 [6
Cal.Rptr.2d 184], internal citations omitted, abrogated on another ground in Guz,
supra, 24 Cal.4th at p. 351.)
• “The general rule is that the measure of recovery by a wrongfully discharged
employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment.” (Parker v.
Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737,
474 P.2d 689], internal citations omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch.4-A, Employment
Presumed At Will, ¶¶ 4:2, 4:8, 4:15 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation Ch.4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:65, 4:81, 4:105 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶¶ 4:270–4:273 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.4–8.20B
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, §§ 60.05, 60.07 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.10, 249.15, 249.43, 249.90, Ch. 250,
Employment Law: Wage and Hour Disputes, § 250.66 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.10, 50.11 (Matthew
Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.22, 100.28, 100.29, 100.31 (Matthew
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Bender)
California Civil Practice: Employment Litigation §§ 6:9–6:11 (Thomson Reuters)
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2402. Revoked November 2018.
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2403. Breach of Employment Contract—Unspecified
Term—Implied-in-Fact Promise Not to Discharge Without Good
Cause
An employer promises to [discharge/demote] an employee only for good
cause if it is reasonable for an employee to conclude, from the
employer’s words or conduct, that the employee will be
[discharged/demoted] only for good cause.
In deciding whether [name of defendant] promised to [discharge/demote]
[name of plaintiff] only for good cause, you may consider, among other
factors, the following:
(a) [Name of defendant]’s personnel policies [and/or] practices;
(b) [Name of plaintiff]’s length of service;
(c) Any raises, commendations, positive evaluations, and promotions
received by [name of plaintiff]; [and]
(d) Whether [name of defendant] said or did anything to assure [name
of plaintiff] of continued employment; [and]
(e) [Insert other relevant factor(s).]
Length of service, raises, and promotions by themselves are not enough
to imply such a promise, although they are factors for you to consider.
New September 2003; Revised April 2009, June 2013, May 2020
Directions for Use
This instruction should be read when an employee is basing the claim of wrongful
discharge on an implied covenant not to terminate except for good cause. Only
those factors that apply to the facts of the particular case should be read.
In certain cases, it may be necessary to instruct the jury that if it finds there is an
at-will provision in an express written agreement, there may not be an implied
agreement to the contrary. (See Faigin v. Signature Group Holdings, Inc. (2012) 211
Cal.App.4th 726, 739 [150 Cal.Rptr.3d 123] [there cannot be a valid express
contract and an implied contract, each embracing the same subject, but requiring
different results].)
Sources and Authority
• Express and Implied Contracts. Civil Code sections 1619–1621.
• “Labor Code section 2922 establishes a statutory presumption of at-will
employment. However, an employer and an employee are free to depart from the
statutory presumption and specify that the employee will be terminated only for
good cause, either by an express, or an implied, contractual agreement.”
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(Stillwell v. The Salvation Army (2008) 167 Cal.App.4th 360, 380 [84
Cal.Rptr.3d 111], internal citations omitted.)
• “[M]ost cases applying California law . . . have held that an at-will provision in
an express written agreement, signed by the employee, cannot be overcome by
proof of an implied contrary understanding.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 340 fn. 10 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original
italics.)
• “Where there is no express agreement, the issue is whether other evidence of the
parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of an
actual mutual understanding on particular terms and conditions of employment.
If such evidence logically permits conflicting inferences, a question of fact is
presented.” (Guz, supra, 24 Cal.4th at p. 337, internal citations omitted.)
• “The question whether such an implied-in-fact agreement [to termination only
for cause] exists is a factual question for the trier of fact unless the undisputed
facts can support only one reasonable conclusion.” (Faigin, supra, 211
Cal.App.4th at p. 739.)
• “In the employment context, factors apart from consideration and express terms
may be used to ascertain the existence and content of an employment agreement,
including ‘the personnel policies or practices of the employer, the employee’s
longevity of service, actions or communications by the employer reflecting
assurances of continued employment, and the practices of the industry in which
the employee is engaged.’ ” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d
654, 680 [254 Cal.Rptr. 211, 765 P.2d 373], internal citation omitted.)
• “[A]n employee’s mere passage of time in the employer’s service, even where
marked with tangible indicia that the employer approves the employee’s work,
cannot alone form an implied-in-fact contract that the employee is no longer at
will. Absent other evidence of the employer’s intent, longevity, raises and
promotions are their own rewards for the employee’s continuing valued service;
they do not, in and of themselves, additionally constitute a contractual guarantee
of future employment security.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 341–342 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original italics.)
• “We agree that disclaimer language in an employee handbook or policy manual
does not necessarily mean an employee is employed at will. But even if a
handbook disclaimer is not controlling in every case, neither can such a
provision be ignored in determining whether the parties’ conduct was intended,
and reasonably understood, to create binding limits on an employer’s statutory
right to terminate the relationship at will. Like any direct expression of employer
intent, communicated to employees and intended to apply to them, such
language must be taken into account, along with all other pertinent evidence, in
ascertaining the terms on which a worker was employed.” (Guz, supra, 24
Cal.4th at p. 340, internal citations omitted.)
• “Conceptually, there is no rational reason why an employer’s policy that its
employees will not be demoted except for good cause, like a policy restricting
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termination or providing for severance pay, cannot become an implied term of an
employment contract. In each of these instances, an employer promises to confer
a significant benefit on the employee, and it is a question of fact whether that
promise was reasonably understood by the employee to create a contractual
obligation.” (Scott v. Pac. Gas & Elec. Co. (1995) 11 Cal.4th 454, 464 [46
Cal.Rptr.2d 427, 904 P.2d 834].)
• “[Employer] retained the right to terminate [employee] for any lawful reason.
Thus, . . . the fact that [employer] was obligated to pay compensation if it
terminated [employee] for reasons other than his misconduct did not convert an
otherwise at-will agreement into a for-cause agreement.” (Popescu v. Apple Inc.
(2016) 1 Cal.App.5th 39, 59 [204 Cal.Rptr.3d 302].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 246, 250, 251
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:81, 4:105, 4:112 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.6–8.16
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.05[2][a]–[e] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.01, 249.13, 249.15, 249.50 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.22, 100.25–100.27, 100.29, 100.34
(Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:14–6:16 (Thomson Reuters)
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2404. Breach of Employment Contract—Unspecified Term—“Good
Cause” Defined
Good cause exists when an employer’s decision to discharge an employee
is made in good faith and based on a fair and honest reason. An
employer has substantial but not unlimited discretion regarding
personnel decisions[, particularly with respect to an employee in a
sensitive or confidential managerial position]. However, good cause does
not exist if the employer’s reasons for the discharge are trivial, arbitrary,
inconsistent with usual practices, or unrelated to business needs or goals,
or if the stated reasons conceal the employer’s true reasons.
In deciding whether [name of defendant] had good cause to discharge
[name of plaintiff], you must balance [name of defendant]’s interest in
operating the business efficiently and profitably against the interest of
[name of plaintiff] in maintaining employment.
New September 2003; Revised November 2018
Directions for Use
This instruction may not be appropriate in the context of an implied employment
contract where the parties have agreed to a particular meaning of “good cause” (e.g.,
a written employment agreement specifically defining “good cause” for discharge).
If so, the instruction should be modified accordingly.
Include the bracketed language in the opening paragraph if the defense alleges that
the plaintiff was in a sensitive or confidential managerial position.
When the reason given for the discharge is misconduct, and there is a factual
dispute whether the misconduct occurred, then the court should give CACI
No. 2405, Breach of Implied Employment Contract—Unspecified Term—“Good
Cause” Defined—Misconduct, instead of this instruction. (See Cotran v. Rollins
Hudig Hall International, Inc. (1998) 17 Cal.4th 93, 107 [69 Cal.Rptr.2d 900, 948
P.2d 412].)
Sources and Authority
• “Three factual determinations are relevant to the question of employer liability:
(1) did the employer act with good faith in making the decision to terminate; (2)
did the decision follow an investigation that was appropriate under the
circumstances; and (3) did the employer have reasonable grounds for believing
the employee had engaged in the misconduct.” (Jameson v. Pacific Gas &
Electric Co. (2017) 16 Cal.App.5th 901, 910 [225 Cal.Rptr.3d 171].)
• “ ‘Good cause’ in the context of implied employment contracts is defined as:
‘fair and honest reasons, regulated by good faith on the part of the employer,
that are not trivial, arbitrary or capricious, unrelated to business needs or goals,
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or pretextual.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830,
872 [172 Cal.Rptr.3d 732], internal citations omitted.)
• “It is the employer’s honest belief in the stated reasons for firing an employee
and not the objective truth or falsity of the underlying facts that is at
issue . . . .” (Jameson, supra, 16 Cal.App.5th at p. 911.)
• “The term is relative. Whether good cause exists is dependent upon the
particular circumstances of each case. In deciding whether good cause exists,
there must be a balance between the employer’s interest in operating its business
efficiently and profitably and the employee’s interest in continued employment.
Care must be exercised so as not to interfere with the employer’s legitimate
exercise of managerial discretion. . . . Where there is a contract to terminate
only for good cause, the employer has no right to terminate for an arbitrary or
unreasonable decision.” (Walker v. Blue Cross of California (1992) 4
Cal.App.4th 985, 994 [6 Cal.Rptr.2d 184], internal citations omitted, abrogated
on another ground in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 351
[100 Cal.Rptr.2d 352, 8 P.3d 1089].)
• “ ‘Cotran did not delineate the earmarks of an appropriate investigation but
noted that investigative fairness contemplates listening to both sides and
providing employees a fair opportunity to present their position and to correct or
contradict relevant statements prejudicial to their case, without the procedural
formalities of a trial.’ [Citation] [¶] . . . Although the elements of the Cotran
standard are triable to the jury, ‘if the facts are undisputed or admit of only one
conclusion, then summary judgment may be entered . . . .’ ” (Jameson, supra,
16 Cal.App.5th at p. 910.)
• “[W]here, as here, the employee occupies a sensitive managerial or confidential
position, the employer must of necessity be allowed substantial scope for the
exercise of subjective judgment.” (Pugh v. See’s Candies, Inc. (Pugh I) (1981)
116 Cal.App.3d 311, 330 [171 Cal.Rptr. 917], disapproved on other grounds in
Guz, supra, 24 Cal.4th at pp. 350–351.)
• “[G]ood cause” in [the context of wrongful termination based on an implied
contract] “is quite different from the standard applicable in determining the
propriety of an employee’s termination under a contract for a specified term.”
(Pugh, supra, 116 Cal.App.3d at p. 330.)
• “We have held that appellant has demonstrated a prima facie case of wrongful
termination in violation of his contract of employment. The burden of coming
forward with evidence as to the reason for appellant’s termination now shifts to
the employer. Appellant may attack the employer’s offered explanation, either on
the ground that it is pretextual (and that the real reason is one prohibited by
contract or public policy, or on the ground that it is insufficient to meet the
employer’s obligations under contract or applicable legal principles. Appellant
bears, however, the ultimate burden of proving that he was terminated
wrongfully.” (Pugh, supra, 116 Cal.App.3d at pp. 329–330, internal citation
omitted.)
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Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 219–221, 244
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶¶ 4:270–4:273, 4:300 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.25
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21[14][c], 249.63 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.22, 100.27, 100.29, 100.34 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
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2405. Breach of Implied Employment Contract—Unspecified
Term—“Good Cause” Defined—Misconduct
[Name of plaintiff] claims that [name of defendant] did not have good
cause to [discharge/demote] [him/her/nonbinary pronoun] for misconduct.
[Name of defendant] had good cause to [discharge/demote] [name of
plaintiff] for misconduct if [name of defendant], acting in good faith,
conducted an appropriate investigation giving [him/her/nonbinary
pronoun/it] reasonable grounds to believe that [name of plaintiff] engaged
in misconduct.
An appropriate investigation is one that is reasonable under the
circumstances and includes notice to the employee of the claimed
misconduct and an opportunity for the employee to answer the charge of
misconduct before the decision to [discharge/demote] is made. You may
find that [name of defendant] had good cause to [discharge/demote] [name
of plaintiff] without deciding if [name of plaintiff] actually engaged in
misconduct.
New September 2003
Directions for Use
This instruction should be given when there is a dispute as to whether misconduct,
in fact, occurred. (Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal.4th
93 [69 Cal.Rptr.2d 900, 948 P.2d 412].)
Sources and Authority
• “The proper inquiry for the jury . . . is not, ‘Did the employee in fact commit
the act leading to dismissal?’ It is ‘Was the factual basis on which the employer
concluded a dischargeable act had been committed reached honestly, after an
appropriate investigation and for reasons that are not arbitrary or pretextual?’
The jury conducts a factual inquiry in both cases, but the questions are not the
same. In the first, the jury decides the ultimate truth of the employee’s alleged
misconduct. In the second, it focuses on the employer’s response to allegations
of misconduct.” (Cotran, supra, 17 Cal.4th at p. 107.)
• “ ‘Good cause’ in the context of implied employment contracts is defined as:
‘fair and honest’ reasons, regulated by good faith on the part of the employer,
that are not trivial, arbitrary or capricious, unrelated to business needs or goals,
or pretextual. A reasoned conclusion, in short, supported by substantial evidence
gathered through an adequate investigation that includes notice of the claimed
misconduct and a chance for the employee to respond.’ ‘Three factual
determinations are relevant to the question of employer liability: (1) did the
employer act with good faith in making the decision to terminate; (2) did the
decision follow an investigation that was appropriate under the circumstances;
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and (3) did the employer have reasonable grounds for believing the employee
had engaged in the misconduct.’ ‘Cotran did not delineate the earmarks of an
appropriate investigation but noted that investigative fairness contemplates
listening to both sides and providing employees a fair opportunity to present
their position and to correct or contradict relevant statements prejudicial to their
case, without the procedural formalities of a trial.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 872–873 [172 Cal.Rptr.3d 732], internal
citations omitted.)
• “We have held that appellant has demonstrated a prima facie case of wrongful
termination in violation of his contract of employment. The burden of coming
forward with evidence as to the reason for appellant’s termination now shifts to
the employer. Appellant may attack the employer’s offered explanation, either on
the ground that it is pretextual and that the real reason is one prohibited by
contract or public policy, or on the ground that it is insufficient to meet the
employer’s obligations under contract or applicable legal principles. Appellant
bears, however, the ultimate burden of proving that he was terminated
wrongfully.” (Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 329–330
[171 Cal.Rptr. 917], disapproved on other grounds in Guz v. Bechtel National
Inc. (2000) 24 Cal.4th 317, 350−351 [100 Cal. Rptr. 2d 352, 8 P.3d 1089],
internal citation omitted.)
• “[Plaintiff] contends that it was up to a jury to decide whether the [defendant]
‘honestly and objectively reasonably’ believed that her conduct was egregious
enough to be ‘gross misconduct’ and that the court therefore erred in granting
summary adjudication of her fourth cause of action for breach of contract.
Although the elements of the Cotran standard are triable to the jury, ‘if the facts
are undisputed or admit of only one conclusion, then summary judgment may be
entered . . . .’ ” (Serri, supra, 226 Cal.App.4th at p. 873.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 219, 220, 221
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶¶ 4:270–4:271, 4:289 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[5][b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21, 249.43 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.25, 100.29 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
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2406. Breach of Employment Contract—Unspecified
Term—Damages
If you find that [name of defendant] [discharged/demoted] [name of
plaintiff] in breach of an employment contract, then you must decide the
amount of damages, if any, that [name of plaintiff] has proved [he/she/
nonbinary pronoun] is entitled to recover. To make that decision, you
must:
1. Decide the amount that [name of plaintiff] would have earned
from [name of defendant] up to today, including any benefits and
pay increases; [and]
2. Add the present cash value of any future wages and benefits that
[he/she/nonbinary pronoun] would have earned after today for the
length of time the employment with [name of defendant] was
reasonably certain to continue; [and]
3. [Describe any other contract damages that were allegedly caused by
defendant’s conduct.]
In determining the period that [name of plaintiff]’s employment was
reasonably certain to have continued, you should consider, among other
factors, the following:
(a) [Name of plaintiff]’s age, work performance, and intent
regarding continuing employment with [name of defendant];
(b) [Name of defendant]’s prospects for continuing the operations
involving [name of plaintiff]; and
(c) Any other factor that bears on how long [name of plaintiff]
would have continued to work.
New September 2003; Revised December 2011
Directions for Use
For an instruction on mitigation, see CACI No. 3963, Affırmative
Defense—Employee’s Duty to Mitigate Damages. This instruction should be given
when plaintiff claims loss of employment from a wrongful discharge or demotion or
a breach of the covenant of good faith and fair dealing. For instructions on present
cash value, see CACI No. 3904A, Present Cash Value, and CACI No. 3904B, Use
of Present-Value Tables.
Sources and Authority
• Damages for Breach of Contract. Civil Code section 3300.
• “The general rule is that the measure of recovery by a wrongfully discharged
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employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment. However,
before projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived; the employee’s rejection of or
failure to seek other available employment of a different or inferior kind may not
be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-Fox
Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689],
internal citations omitted.)
• “[I]t is our view that in an action for wrongful discharge, and pursuant to the
present day concept of employer-employee relations, the term ‘wages’ should be
deemed to include not only the periodic monetary earnings of the employee but
also the other benefits to which he is entitled as a part of his compensation.”
(Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463 P.2d
426].)
• In determining the period that plaintiff’s employment was reasonably certain to
have continued, the trial court took into consideration plaintiff’s “ ‘physical
condition, his age, his propensity for hard work, his expertise in managing
defendants’ offices, the profit history of his operation, [and] the foreseeability of
the continued future demand for tax return service to small taxpayers . . . .’ ”
(Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr.
169].)
• In cases for wrongful demotion, the measure of damages is “the difference in
compensation before and after the demotion.” (Scott v. Pac. Gas & Elec. Co.
(1995) 11 Cal.4th 454, 468 [46 Cal.Rptr.2d 427, 904 P.2d 834].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 284, 285, 286
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B, Contract
Damages, ¶¶ 17:81, 17:95, 17:105 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[3] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.01, 249.17, 249.50 (Matthew Bender)
2407–2419. Reserved for Future Use
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2420. Breach of Employment Contract—Specified Term—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] breached an
employment contract for a specified term. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into an
employment contract that specified a length of time that [name of
plaintiff] would remain employed;
2. That [name of plaintiff] substantially performed [his/her/nonbinary
pronoun] job duties [unless [name of plaintiff]’s performance was
excused [or prevented]];
3. That [name of defendant] breached the employment contract by
[discharging/demoting] [name of plaintiff] before the end of the
term of the contract; and
4. That [name of plaintiff] was harmed by the [discharge/demotion].
New September 2003
Directions for Use
The element of substantial performance should not be confused with the “good
cause” defense: “The action is primarily for breach of contract. It was therefore
incumbent upon plaintiff to prove that he was able and offered to fulfill all
obligations imposed upon him by the contract. Plaintiff failed to meet this
requirement; by voluntarily withdrawing from the contract he excused further
performance by defendant.” (Kane v. Sklar (1954) 122 Cal.App.2d 480, 482 [265
P.2d 29], internal citation omitted.) Element 2 may be deleted if substantial
performance is not an issue.
See also CACI No. 304, Oral or Written Contract Terms, and CACI No. 305,
Implied-in-Fact Contract.
Sources and Authority
• At-Will Employment. Labor Code section 2922.
• Termination of Employment for Specified Term. Labor Code section 2924.
• Contractual Conditions Precedent. Civil Code section 1439.
• “[L]abor Code section 2924 has traditionally been interpreted to ‘inhibit[] the
termination of employment for a specified term except in case of a wilful breach
of duty, of habitual neglect of, or continued incapacity to perform, a duty.’ ”
(Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32,
57 [100 Cal.Rptr.2d 627], internal citations omitted.)
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• “Stated simply, the contract compensation for the unexpired period of the
contract affords a prima facie measure of damages; the actual measured damage,
however, is the contract amount reduced by compensation received during the
unexpired term; if, however, such other compensation has not been received, the
contract amount may still be reduced or eliminated by a showing that the
employee, by the exercise of reasonable diligence and effort, could have
procured comparable employment and thus mitigated the damages.” (Erler v.
Five Points Motors, Inc. (1967) 249 Cal.App.2d 560, 562 [57 Cal.Rptr. 516].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed at Will, ¶¶ 4:2, 4:47 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.2–8.20
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
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2421. Breach of Employment Contract—Specified Term—Good-
Cause Defense (Lab. Code, § 2924)
[Name of defendant] claims that [he/she/nonbinary pronoun/it] did not
breach the employment contract because [he/she/nonbinary pronoun/it]
[discharged/demoted] [name of plaintiff] for good cause. To establish good
cause, [name of defendant] must prove:
[that [name of plaintiff] willfully breached a job duty] [or]
[that [name of plaintiff] continually neglected [his/her/nonbinary
pronoun] job duties] [or]
[that a continued incapacity prevented [name of plaintiff] from
performing [his/her/nonbinary pronoun] job duties.]
New September 2003; Revised June 2012
Directions for Use
This instruction sets forth the statutory grounds under which an employer may
terminate an employment contract for a specified term. (See Lab. Code, § 2924.) It
should be given when the employee alleges wrongful discharge in breach of the
contract and the employer defends by asserting plaintiff was justifiably discharged.
This instruction may not be appropriate if the parties have agreed to a particular
meaning of “good cause” (e.g., a written employment agreement specifically
defining “good cause” for discharge). (See Uecker & Assocs. v. Lei (In re San Jose
Med. Mgmt.) (B.A.P. 9th Cir. 2007) 2007 Bankr. LEXIS 4829.) If so, the instruction
should be modified to set forth the contractual grounds for good cause. In the
absence of grounds for termination in the contract, the employer is limited to those
set forth in the statute. (See Khajavi v. Feather River Anesthesia Medical Group
(2000) 84 Cal.App.4th 32, 57 [100 Cal.Rptr.2d 627].)
The third option may not be asserted if the plaintiff has a statutory right to be
absent from work (for example, for family or medical leave or to accommodate a
disability) throughout the entire period of incapacity.
Sources and Authority
• At-Will Employment. Labor Code section 2922.
• Termination of Employment for Specified Term. Labor Code section 2924.
• “[L]abor Code section 2924 has traditionally been interpreted to ‘inhibit[] the
termination of employment for a specified term except in case of a wilful breach
of duty, of habitual neglect of, or continued incapacity to perform, a duty.’ ”
(Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32,
57 [100 Cal.Rptr.2d 627], internal citations omitted.)
• “Unlike a wrongful discharge based on an implied-in-fact contract, an employee
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who has a contract for a specified term may not be terminated prior to the term’s
expiration based on an honest but mistaken belief that the employee breached
the contract: Such a right would treat a contract with a specified term no better
than an implied contract that has no term; such a right would dilute the
enforceability of the contract’s specified term because an employee who had
properly performed his or her contract could still be terminated before the term’s
end; and such a right would run afoul of the plain language of Labor Code
section 2924, which allows termination of an employment for a specified term
only ‘in case of any willful breach of duty . . . habitual neglect of . . . duty or
continued incapacity to perform it.’ Termination of employment for a specified
term, before the end of the term, based solely on the mistaken belief of a breach,
cannot be reconciled with either the governing statute’s text or settled principles
of contract law.” (Khajavi, supra, 84 Cal.App.4th at pp. 38–39.)
• Good cause in the context of wrongful termination based on an implied contract
“ ‘is quite different from the standard applicable in determining the propriety of
an employee’s termination under a contract for a specified term.’ ” (Khajavi,
supra, 84 Cal.App.4th at p. 58, internal citations omitted.)
• “An employer is justified in discharging his employee, when the latter fails to
perform his duty, even though injury does not result to the employer as a result
of the employee’s failure to do his duty.” (Bank of America National Trust &
Savings Ass’n v. Republic Productions, Inc. (1941) 44 Cal.App.2d 651, 654 [112
P.2d 972], internal citation omitted.)
• “To terminate an employment without the expiration of its contractual term
‘there must be good cause.’ The grounds for terminating such an employment
are stated in Labor Code section 2924. . . . It is therefore not every deviation of
the employee from the standard of performance sought by his employer that will
justify a discharge. There must be some ‘wilful act or wilful misconduct . . .’
when the employee uses his best efforts to serve the interests of his employer.”
(Holtzendorff v. Housing Authority of the City of Los Angeles (1967) 250
Cal.App.2d 596, 610 [58 Cal.Rptr. 886], internal citation omitted.)
• “ ‘Willful’ disobedience of a specific, peremptory instruction of the master, if the
instruction be reasonable and consistent with the contract, is a breach of duty—a
breach of the contract of service; and, like any other breach of the contract, of
itself entitles the master to renounce the contract of employment.” (May v. New
York Motion Picture Corp. (1920) 45 Cal.App. 396, 403 [187 P. 785].)
• “An employment agreement that specifies the length of employment (e.g., two
years) limits the employer’s right to discharge the employee within that period.
Unless the agreement provides otherwise (e.g., by reserving the right to
discharge for cause), the employer may terminate employment for a specified
term only for [the grounds specified in Labor Code section 2924].” (Chin et al.,
California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:47 (The Rutter Group)
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Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶¶ 4:2, 4:47, 4:56, 4:57 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:47, 4:56, 4:57 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 62, Avoiding Wrongful Termination and
Discipline Claims, § 62.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.13, 249.21, 249.60–249.63 (Matthew Bender)
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2422. Breach of Employment Contract—Specified
Term—Damages
If you find that [name of defendant] [discharged/demoted] [name of
plaintiff] in breach of an employment contract for a specified term, then
you must decide the damages, if any, that [name of plaintiff] has proved
[he/she/nonbinary pronoun] is entitled to recover. To make that decision,
you must:
1. Decide the amount that [name of plaintiff] would have earned up
to today, including any benefits and pay increases; [and]
2. Add the present cash value of any future wages and benefits that
[he/she/nonbinary pronoun] would have earned up to the end of
the term of the contract; [and]
3. [Describe any other contract damages that were allegedly caused by
defendant’s conduct.]
[If you find that [name of plaintiff] would have exercised
[his/her/nonbinary pronoun] option to extend the term of the employment
contract, then you may consider the total term of [name of plaintiff]’s
employment contract to be [specify length of original contract term plus
option term].]
New September 2003
Directions for Use
Use CACI No. 3963, Affırmative Defense—Employee’s Duty to Mitigate Damages,
if the defendant seeks an offset for wages plaintiff could have earned from similar
employment.
Sources and Authority
• Damages for Breach of Contract. Civil Code section 3300.
• “Stated simply, the contract compensation for the unexpired period of the
contract affords a prima facie measure of damages; the actual measured damage,
however, is the contract amount reduced by compensation received during the
unexpired term; if, however, such other compensation has not been received, the
contract amount may still be reduced or eliminated by a showing that the
employee, by the exercise of reasonable diligence and effort, could have
procured comparable employment and thus mitigated the damages.” (Erler v.
Five Points Motors, Inc. (1967) 249 Cal.App.2d 560, 562 [57 Cal.Rptr. 516].)
• In appropriate circumstances, the court may authorize the trier of fact to
“consider the probability the employee would exercise the option in determining
the length of the unexpired term of employment when applying the applicable
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measure of damages . . . .” (Oldenkott v. American Electric, Inc. (1971) 14
Cal.App.3d 198, 204 [92 Cal.Rptr. 127].)
• “The trial court correctly found that defendants wrongfully terminated the
employment contract and that the measure of damages was the difference
between the amount Silva would have received under the contract and that
amount which Silva actually received from his other employment.” (Silva v.
McCoy (1968) 259 Cal.App.2d 256, 260 [66 Cal.Rptr. 364].)
• “The plaintiff has the burden of proving his damage. The law is settled that he
has the duty of minimizing that damage. While the contract wages are prima
facie [evidence of] his damage, his actual damage is the amount of money he
was out of pocket by reason of the wrongful discharge.” (Erler v. Five Points
Motors, Inc., supra, 249 Cal.App.2d at pp. 567–568.)
• “The burden of proof is on the party whose breach caused damage, to establish
matters relied on to mitigate damage.” (Steelduct Co. v. Henger-Seltzer Co.
(1945) 26 Cal.2d 634, 654 [160 P.2d 804], internal citations omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, 17-B, Contract
Damages, ¶¶ 17:81, 17:95, 17:105, 17:495 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, 17-F, Mitigation of
Damages (Avoidable Consequences Doctrine), ¶ 17:495 (The Rutter Group)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
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2423. Breach of Implied Covenant of Good Faith and Fair
Dealing—Employment Contract—Essential Factual Elements
In every employment [contract/agreement] there is an implied promise of
good faith and fair dealing. This implied promise means that neither the
employer nor the employee will do anything to unfairly interfere with
the right of the other to receive the benefits of the employment
relationship. Good faith means honesty of purpose without any intention
to mislead or to take unfair advantage of another. Generally speaking, it
means being faithful to one’s duty or obligation. However, the implied
promise of good faith and fair dealing cannot create obligations that are
inconsistent with the terms of the contract.
[Name of plaintiff] claims that [name of defendant] violated the duty
implied in their employment [contract/agreement] to act fairly and in
good faith. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] and [name of defendant] entered into an
employment relationship;
[2. That [name of plaintiff] substantially performed [his/her/nonbinary
pronoun] job duties [unless [name of plaintiff]’s performance was
excused [or prevented]];]
[3. That all conditions required for [name of defendant]’s
performance [had occurred/ [or] were excused];]
4. That [name of defendant] [specify conduct that the plaintiff claims
prevented plaintiff from receiving the benefits under the contract];
5. That by doing so, [name of defendant] did not act fairly and in
good faith; and
6. That [name of plaintiff] was harmed by [name of defendant]’s
conduct.
New September 2003; Revised November 2019, May 2020
Directions for Use
In every contract, there is an implied promise that each party will not do anything to
unfairly interfere with the right of any other party to receive the benefits of the
contract. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658 [328
P.2d 198].) Give this instruction if the employee asserts a claim that the employee’s
termination or other adverse employment action was in breach of this implied
covenant. If the existence of a contract is at issue, see instructions on contract
formation in the 300 series.
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Include element 2 if the employee’s substantial performance of the employee’s
required job duties is at issue. Include element 3 if there are conditions precedent
that the employee must fulfill before the employer is required to perform. In element
4, insert an explanation of the employer’s conduct that violated the duty to act in
good faith.
Do not give this instruction if the alleged breach is only the termination of an at-
will contract. (See Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359,
1391 [88 Cal.Rptr.2d 802].)
See also the Sources and Authority to CACI No. 325, Breach of Implied Covenant
of Good Faith and Fair Dealing—Essential Factual Elements, for more authorities
on the implied covenant outside of employment law.
Sources and Authority
• Contractual Conditions Precedent. Civil Code section 1439.
• “We therefore conclude that the employment relationship is not sufficiently
similar to that of insurer and insured to warrant judicial extension of the
proposed additional tort remedies in view of the countervailing concerns about
economic policy and stability, the traditional separation of tort and contract law,
and finally, the numerous protections against improper terminations already
afforded employees.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 693
[254 Cal.Rptr. 211, 765 P.2d 373].)
• “A breach of the contract may also constitute a breach of the implied covenant
of good faith and fair dealing. But insofar as the employer’s acts are directly
actionable as a breach of an implied-in-fact contract term, a claim that merely
realleges that breach as a violation of the covenant is superfluous. This is
because, as we explained at length in Foley, the remedy for breach of an
employment agreement, including the covenant of good faith and fair dealing
implied by law therein, is solely contractual. In the employment context, an
implied covenant theory affords no separate measure of recovery, such as tort
damages.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352 [100
Cal.Rptr.2d 352, 8 P.3d 1089], internal citation omitted.)
• “We do not suggest the covenant of good faith and fair dealing has no function
whatever in the interpretation and enforcement of employment contracts. As
indicated above, the covenant prevents a party from acting in bad faith to
frustrate the contract’s actual benefits. Thus, for example, the covenant might be
violated if termination of an at-will employee was a mere pretext to cheat the
worker out of another contract benefit to which the employee was clearly
entitled, such as compensation already earned.” (Guz, supra, 24 Cal.4th at p.
353, fn. 18.)
• “The reason for an employee’s dismissal and whether that reason constitutes bad
faith are evidentiary questions most properly resolved by the trier of fact.” (Luck
v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 26 [267
Cal.Rptr. 618], internal citations omitted.)
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Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-D, Implied
Covenant of Good Faith and Fair Dealing, ¶¶ 4:330, 4:331, 4:340, 4:343, 4:346
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.27–8.28
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, §§ 60.02[2][c], 60.06 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.14 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:21–6:22 (Thomson Reuters)
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2424. Affirmative Defense—Breach of the Implied Covenant of
Good Faith and Fair Dealing—Good Faith Though Mistaken Belief
[Name of defendant] claims that [he/she/nonbinary pronoun/it] did not
breach the duty to act fairly and in good faith because [he/she/nonbinary
pronoun/it] believed that there was a legitimate and reasonable business
purpose for the conduct.
To succeed, [name of defendant] must prove both of the following:
1. That [his/her/nonbinary pronoun/its] conduct was based on an
honest belief that [insert alleged mistake]; and
2. That, if true, [insert alleged mistake] would have been a legitimate
and reasonable business purpose for the conduct.
New September 2003; Revised November 2019, May 2020
Directions for Use
In every contract, there is an implied promise that each party will not do anything to
unfairly interfere with the right of any other party to receive the benefits of the
contract. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658 [328
P.2d 198].) Give CACI No. 2423, Breach of Implied Covenant of Good Faith and
Fair Dealing—Employment Contract—Essential Factual Elements, if the employee
asserts a claim that the employee’s termination or other adverse employment action
was in breach of this implied covenant. Give this instruction if the employer asserts
the defense that an honest, though mistaken, belief does not constitute a breach.
Sources and Authority
• “[B]ecause the implied covenant of good faith and fair dealing requires the
employer to act fairly and in good faith, an employer’s honest though mistaken
belief that legitimate business reasons provided good cause for discharge, will
negate a claim it sought in bad faith to deprive the employee of the benefits of
the contract.” (Wilkerson v. Wells Fargo Bank (1989) 212 Cal.App.3d 1217, 1231
[261 Cal.Rptr. 185], internal citation omitted, disapproved on other grounds in
Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal.4th 93, 96 [69
Cal.Rptr.2d 900, 948 P.2d 412].)
• “The jury was instructed that the neglect or refusal to fulfill a contractual
obligation based on an honest, mistaken belief did not constitute a breach of the
implied covenant.” (Luck v. Southern Pacific Transportation Co. (1990) 218
Cal.App.3d 1, 26 [267 Cal.Rptr. 618].)
• “[F]oley does not preclude inquiry into an employer’s motive for discharging an
employee . . . .” (Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514, 1521
[273 Cal.Rptr. 296], overruled on other grounds, Dore v. Arnold Worldwide, Inc.
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(2006) 39 Cal.4th 384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56].)
• “[T]he jury was asked to determine in its special verdict whether appellants had
a legitimate reason to terminate [plaintiff]’s employment and whether appellants
acted in good faith on an honest but mistaken belief that they had a legitimate
business reason to terminate [plaintiff]’s employment.” (Seubert, supra, 223
Cal.App.3d at p. 1521 [upholding jury instruction].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:5 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good
Cause” for Termination, ¶ 4:271 (The Rutter Group)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.30 (Matthew Bender)
2425–2429. Reserved for Future Use
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2430. Wrongful Discharge in Violation of Public Policy—Essential
Factual Elements
[Name of plaintiff] claims [he/she/nonbinary pronoun] was discharged from
employment for reasons that violate a public policy. It is a violation of
public policy [specify claim in case, e.g., to discharge someone from
employment for refusing to engage in price fixing]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] discharged [name of plaintiff];
3. That [insert alleged violation of public policy, e.g., “[name of
plaintiff]’s refusal to engage in price fixing”] was a substantial
motivating reason for [name of plaintiff]’s discharge;
4. That [name of plaintiff] was harmed; and
5. That the discharge was a substantial factor in causing [name of
plaintiff] harm.
New September 2003; Revised June 2013, June 2014, December 2014, November
2018, May 2020
Directions for Use
The judge should determine whether the purported reason for firing the plaintiff
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other grounds
in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78 Cal.Rptr.2d
16, 960 P.2d 1046].) The jury should then be instructed that the alleged conduct
would constitute a public-policy violation if proved.
Note that there are two causation elements. First, there must be causation between
the public policy violation and the discharge (element 3). This instruction uses the
term “substantial motivating reason” to express this causation element. “[S]ubstantial
motivating reason” has been held to be the appropriate standard for cases alleging
termination in violation of public policy. (Alamo v. Practice Management
Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392,
294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.)
Element 5 then expresses a second causation requirement; that the plaintiff was
harmed as a result of the wrongful discharge.
If plaintiff alleges the plaintiff was forced or coerced to resign, then CACI
No. 2431, Constructive Discharge in Violation of Public Policy—Plaintiff Required
to Violate Public Policy, or CACI No. 2432, Constructive Discharge in Violation of
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CACI No. 2430 WRONGFUL TERMINATION
Public Policy—Plaintiff Required to Endure Intolerable Conditions That Violate
Public Policy, should be given instead. See also CACI No. 2510, “Constructive
Discharge” Explained.
This instruction may be modified for adverse employment actions other than
discharge, for example demotion, if done in violation of public policy. (See Garcia
v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1561 [232 Cal.Rptr. 490],
disapproved on other grounds in Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1093 [4
Cal.Rptr.2d 874, 824 P.2d 680] [public policy forbids retaliatory action taken by
employer against employee who discloses information regarding employer’s
violation of law to government agency].) See also CACI No. 2509, “Adverse
Employment Action” Explained.
For an instruction on damages, give CACI No. 3903P, Damages From Employer for
Wrongful Discharge (Economic Damage).
Sources and Authority
• “ ‘[W]hile an at-will employee may be terminated for no reason, or for an
arbitrary or irrational reason, there can be no right to terminate for an unlawful
reason or a purpose that contravenes fundamental public policy. Any other
conclusion would sanction lawlessness, which courts by their very nature are
bound to oppose.’ ” (Casella v. SouthWest Dealer Services, Inc. (2007) 157
Cal.App.4th 1127, 1138–1139 [69 Cal.Rptr.3d 445], internal citations omitted.)
• “[W]hen an employer’s discharge of an employee violates fundamental principles
of public policy, the discharged employee may maintain a tort action and recover
damages traditionally available in such actions.” (Tameny v. Atlantic Richfield
Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “The elements of a claim for wrongful discharge in violation of public policy are
(1) an employer-employee relationship, (2) the employer terminated the
plaintiff’s employment, (3) the termination was substantially motivated by a
violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau
v. Allen (2014) 229 Cal.App.4th 144, 154 [176 Cal.Rptr.3d 824].)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66
Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
• “Policies are not ‘public’ (and thus do not give rise to a common law tort claim)
when they are derived from statutes that ‘simply regulate conduct between
private individuals, or impose requirements whose fulfillment does not implicate
fundamental public policy concerns.’ ” (Diego v. Pilgrim United Church of
Christ (2014) 231 Cal.App.4th 913, 926 [180 Cal.Rptr.3d 359].)
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• “[T]he cases in which violations of public policy are found generally fall into
four categories: (1) refusing to violate a statute; (2) performing a statutory
obligation (3) exercising a statutory right or privilege; and (4) reporting an
alleged violation of a statute of public importance.” (Gantt, supra, 1 Cal.4th at
pp. 1090–1091, internal citations and footnote omitted, overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046]; accord Stevenson, supra, 16 Cal.4th at p. 889.)
• “[T]ermination of an employee most clearly violates public policy when it
contravenes the provision of a statute forbidding termination for a specified
reason . . . .” (Diego, supra, 231 Cal.App.4th at p. 926)
• “[Discharge because of employee’s] [r]efusal to violate a governmental
regulation may also be the basis for a tort cause of action where the
administrative regulation enunciates a fundamental public policy and is
authorized by statute.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th
702, 708–709 [96 Cal.Rptr.3d 159].)
• “In the context of a tort claim for wrongful discharge, tethering public policy to
specific constitutional or statutory provisions serves not only to avoid judicial
interference with the legislative domain, but also to ensure that employers have
adequate notice of the conduct that will subject them to tort liability to the
employees they discharge . . . .” (Stevenson, supra, 16 Cal.4th at p. 889.)
• “[A]n employee need not prove an actual violation of law; it suffices if the
employer fired him for reporting his ‘reasonably based suspicions’ of illegal
activity.” (Green, supra, 19 Cal.4th at p. 87, internal citation omitted.)
• “[A]n employer’s authority over its employee does not include the right to
demand that the employee commit a criminal act to further its interests, and an
employer may not coerce compliance with such unlawful directions by
discharging an employee who refuses to follow such an order. . . .” (Tameny,
supra, 27 Cal.3d at p. 178.)
• “[T]here is a ‘fundamental public interest in a workplace free from illegal
practices . . . .’ ‘[T]he public interest is in a lawful, not criminal, business
operation. Attainment of this objective requires that an employee be free to call
his or her employer’s attention to illegal practices, so that the employer may
prevent crimes from being committed by misuse of its products by its
employees.’ ” (Yau, supra, 229 Cal.App.4th at p. 157.)
• “An action for wrongful termination in violation of public policy ‘can only be
asserted against an employer. An individual who is not an employer cannot
commit the tort of wrongful discharge in violation of public policy; rather, he or
she can only be the agent by which an employer commits that tort.’ ” (Kim v.
Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351 [172
Cal.Rptr.3d 686], original italics.)
• Employees in both the private and public sector may assert this claim. (See
Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 [4 Cal.Rptr.2d 203].)
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• “Sex discrimination in employment may support a claim of tortious discharge in
violation of public policy.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th
191, 214 [126 Cal.Rptr.3d 651].)
• “In sum, a wrongful termination against public policy common law tort based on
sexual harassment can be brought against an employer of any size.” (Kim, supra,
226 Cal.App.4th at p. 1351.)
• “To establish a claim for wrongful termination in violation of public policy, an
employee must prove causation. (See CACI No. 2430 [using phrase ‘substantial
motivating reason’ to express causation].) Claims of whistleblower harassment
and retaliatory termination may not succeed where a plaintiff ‘cannot
demonstrate the required nexus between his reporting of alleged statutory
violations and his allegedly adverse treatment by [the employer].’ ” (Ferrick v.
Santa Clara University (2014) 231 Cal.App.4th 1337, 1357 [181 Cal.Rptr.3d
68].)
• “It would be nonsensical to provide a different standard of causation in FEHA
cases and common law tort cases based on public policies encompassed by
FEHA.” (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th
1334, 1341 [166 Cal.Rptr.3d 720].)
• “If claims for wrongful termination in violation of public policy must track
FEHA, it necessarily follows that jury instructions pertinent to causation and
motivation must be the same for both. Accordingly, we conclude the trial court
did not err in giving the instructions set forth in the CACI model jury
instructions.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302,
1323 [200 Cal.Rptr.3d 315].)
• “Under California law, if an employer did not violate FEHA, the employee’s
claim for wrongful termination in violation of public policy necessarily fails.”
(Featherstone v. Southern California Permanente Medical Group (2017) 10
Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d 258].)
• “FEHA’s policy prohibiting disability discrimination in employment is
sufficiently substantial and fundamental to support a claim for wrongful
termination in violation of public policy.” (Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 660 [163 Cal.Rptr.3d 392].)
• “Although the fourth cause of action references FEHA as one source of the
public policy at issue, this is not a statutory FEHA cause of action. FEHA does
not displace or supplant common law tort claims for wrongful discharge.” (Kim,
supra, 226 Cal.App.4th at p. 1349.)
• “[T]o the extent the trial court concluded Labor Code section 132a is the
exclusive remedy for work-related injury discrimination, it erred. The California
Supreme Court held ‘[Labor Code] section 132a does not provide an exclusive
remedy and does not preclude an employee from pursuing FEHA and common
law wrongful discharge remedies.’ ” (Prue v. Brady Co./San Diego, Inc. (2015)
242 Cal.App.4th 1367, 1381 [196 Cal.Rptr.3d 68].)
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• “California’s minimum wage law represents a fundamental policy for purposes
of a claim for wrongful termination or constructive discharge in violation of
public policy.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 831–832 [166 Cal.Rptr.3d 242].)
• “ ‘Labor Code section 1102.5, subdivision (b), which prohibits employer
retaliation against an employee who reports a reasonably suspected violation of
the law to a government or law enforcement agency, reflects the broad public
policy interest in encouraging workplace “whistleblowers,” who may without
fear of retaliation report concerns regarding an employer’s illegal conduct. This
public policy is the modern day equivalent of the long-established duty of the
citizenry to bring to public attention the doings of a lawbreaker. [Citation.]
. . .’ ” (Ferrick, supra, 231 Cal.App.4th at p. 1355.)
• “That [defendant]’s decision not to renew her contract for an additional season
might have been influenced by her complaints about an unsafe working condition
. . . does not change our conclusion in light of the principle that a decision not
to renew a contract set to expire is not actionable in tort.” (Touchstone Television
Productions v. Superior Court (2012) 208 Cal.App.4th 676, 682 [145 Cal.Rptr.3d
766], original italics.)
• “ ‘ “[P]ublic policy’ as a concept is notoriously resistant to precise definition, and
. . . courts should venture into this area, if at all, with great care . . . .”
[Citation.] Therefore, when the constitutional provision or statute articulating a
public policy also includes certain substantive limitations in scope or remedy,
these limitations also circumscribe the common law wrongful discharge cause of
action. Stated another way, the common law cause of action cannot be broader
than the constitutional provision or statute on which it depends, and therefore it
‘presents no impediment to employers that operate within the bounds of law.”
[Citation.]’ ” (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th
750, 756 [146 Cal.Rptr.3d 922], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 272
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-(I)B, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:47, 5:50, 5:70,
5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220, 5:235 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, § 5.45
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.50–249.52 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.52–100.61B (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)
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2431. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Violate Public Policy
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was forced to
resign rather than commit a violation of public policy. It is a violation of
public policy [specify claim in case, e.g., for an employer to require that an
employee engage in price fixing]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] required [name of plaintiff] to [specify
alleged conduct in violation of public policy, e.g., “engage in price
fixing”];
3. That this requirement was so intolerable that a reasonable person
in [name of plaintiff]’s position would have had no reasonable
alternative except to resign;
4. That [name of plaintiff] resigned because of this requirement;
5. That [name of plaintiff] was harmed; and
6. That the requirement was a substantial factor in causing [name of
plaintiff]’s harm.
New September 2003; Revised June 2014, December 2014, May 2020
Directions for Use
This instruction should be given if a plaintiff claims that the plaintiff’s constructive
termination was wrongful because the defendant required the plaintiff to commit an
act in violation of public policy. If the plaintiff alleges the plaintiff was subjected to
intolerable working conditions that violate public policy, see CACI No. 2432,
Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions for Improper Purpose That Violates Public Policy.
This instruction must be supplemented with CACI No. 3903P, Damages From
Employer for Wrongful Discharge (Economic Damage). See also CACI No. 2510,
“Constructive Discharge” Explained.
The judge should determine whether the purported reason for plaintiff’s resignation
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680], overruled on other grounds
in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78 Cal.Rptr.2d
16, 960 P.2d 1046].) The jury should then be instructed that the alleged conduct
would constitute a public-policy violation if proved.
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Sources and Authority
• “[W]hen an employer’s discharge of an employee violates fundamental principles
of public policy, the discharged employee may maintain a tort action and recover
damages traditionally available in such actions.” (Tameny v. Atlantic Richfield
Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “[A]n employer’s authority over its employees does not include the right to
demand that the employee commit a criminal act to further its interests, and an
employer may not coerce compliance with such unlawful directions by
discharging an employee who refuses to follow such an order. An employer
engaging in such conduct violates a basic duty imposed by law upon all
employers, and thus an employee who has suffered damages as a result of such
discharge may maintain a tort action for wrongful discharge against the
employer.” (Tameny, supra, 27 Cal.3d at p. 178.)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66
Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
• “[T]he cases in which violations of public policy are found generally fall into
four categories: (1) refusing to violate a statute; (2) performing a statutory
obligation (3) exercising a statutory right or privilege; and (4) reporting an
alleged violation of a statute of public importance.” (Gantt v. Sentry Insurance
(1992) 1 Cal.4th 1083, 1090–1091 [4 Cal.Rptr.2d 874, 824 P.2d 680], internal
citations and fn. omitted, overruled on other grounds in Green v. Ralee
Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78 Cal.Rptr.2d 16, 960 P.2d
1046]; accord Stevenson, supra, 16 Cal.4th at p. 889.)
• “In addition to statutes and constitutional provisions, valid administrative
regulations may also serve as a source of fundamental public policy that impacts
on an employer’s right to discharge employees when such regulations implement
fundamental public policy found in their enabling statutes.” (D’sa v. Playhut, Inc.
(2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal citation omitted.)
• “Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the employment
relationship is actually severed involuntarily by the employer’s acts, against the
employee’s will. As a result, a constructive discharge is legally regarded as a
firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7
Cal.4th 1238, 1244–1245 [32 Cal.Rptr.2d 223, 876 P.2d 1022], internal citation
omitted.)
• “Although situations may exist where the employee’s decision to resign is
unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to
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justify a reasonable employee’s decision to resign is normally a question of fact.
[Citation.]’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 827 [166 Cal.Rptr.3d 242].)
• “In order to establish a constructive discharge, an employee must plead and
prove . . . that the employer either intentionally created or knowingly permitted
working conditions that were so intolerable or aggravated at the time of the
employee’s resignation that a reasonable employer would realize that a
reasonable person in the employee’s position would be compelled to resign.”
(Turner, supra, 7 Cal.4th at p. 1251.)
• “The conditions giving rise to the resignation must be sufficiently extraordinary
and egregious to overcome the normal motivation of a competent, diligent, and
reasonable employee to remain on the job to earn a livelihood and to serve his
or her employer. The proper focus is on whether the resignation was coerced, not
whether it was simply one rational option for the employee.” (Turner, supra, 7
Cal.4th at p. 1246.)
• “In some circumstances, a single intolerable incident, such as a crime of
violence against an employee by an employer, or an employer’s ultimatum that
an employee commit a crime, may constitute a constructive discharge. Such
misconduct potentially could be found ‘aggravated.’ ” (Turner, supra, 7 Cal.4th
at p. 1247, fn. 3.)
• “The mere existence of illegal conduct in a workplace does not, without more,
render employment conditions intolerable to a reasonable employee.” (Turner,
supra, 7 Cal.4th at p. 1254.)
• “[T]he standard by which a constructive discharge is determined is an objective
one—the question is ‘whether a reasonable person faced with the allegedly
intolerable employer actions or conditions of employment would have no
reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248,
internal citations omitted.)
• “[U]nder Turner, the proper focus is on the working conditions themselves, not
on the plaintiff’s subjective reaction to those conditions.” (Simers v. Los Angeles
Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1272 [227 Cal.Rptr.3d
695], original italics.)
• “The length of time the plaintiff remained on the job may be one relevant factor
in determining the intolerability of employment conditions from the standpoint
of a reasonable person.” (Turner, supra, 7 Cal.4th at p. 1254.)
• “[T]here was, as the trial court found, substantial evidence that plaintiff’s age
and disability were ‘substantial motivating reason[s]’ for the adverse employment
action or actions to which plaintiff was subjected. But the discriminatory motive
for plaintiff’s working conditions has no bearing on whether the evidence was
sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at
p. 1271.)
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Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 235
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G, Constructive
Discharge, ¶¶ 4:405–4:406, 4:409–4:410, 4:421–4:422 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-A, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:45–5:47, 5:50, 5:70,
5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.45–5.46
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.31, 100.35–100.38 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)
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2432. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Endure Intolerable Conditions That
Violate Public Policy
[Name of plaintiff] claims that [name of defendant] forced
[him/her/nonbinary pronoun] to resign for reasons that violate public
policy. It is a violation of public policy [specify claim in case, e.g., for an
employer to require an employee to work more than forty hours a week for
less than minimum wage]. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of plaintiff] was subjected to working conditions that
violated public policy, in that [describe conditions imposed on the
employee that constitute the violation, e.g., “[name of plaintiff] was
required to work more than forty hours a week for less than minimum
wage”];
3. That [name of defendant] intentionally created or knowingly
permitted these working conditions;
4. That these working conditions were so intolerable that a
reasonable person in [name of plaintiff]’s position would have had
no reasonable alternative except to resign;
5. That [name of plaintiff] resigned because of these working
conditions;
6. That [name of plaintiff] was harmed; and
7. That the working conditions were a substantial factor in causing
[name of plaintiff]’s harm.
To be intolerable, the adverse working conditions must be unusually
aggravated or involve a continuous pattern of mistreatment. Trivial acts
are insufficient.
New September 2003; Revised December 2014, June 2015, May 2020
Directions for Use
This instruction should be given if the plaintiff claims that the plaintiff’s
constructive termination was wrongful because defendant subjected plaintiff to
intolerable working conditions in violation of public policy. The instruction must be
supplemented with CACI No. 3903P, Damages From Employer for Wrongful
Discharge (Economic Damage). See also CACI No. 2510, “Constructive
Discharge” Explained.
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The judge should determine whether the purported reason for plaintiff’s resignation
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680], overruled on other grounds
in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78 Cal.Rptr.2d
16, 960 P.2d 1046].) The jury should then be instructed that the alleged conduct
would constitute a public-policy violation if proved.
Whether conditions are so intolerable as to justify the employee’s decision to quit
rather than endure them is to be judged by an objective reasonable-employee
standard. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247 [32
Cal.Rptr.2d 223, 876 P.2d 1022].) This standard is captured in element 4. The
paragraph at the end of the instruction gives the jury additional guidance as to what
makes conditions intolerable. (See id. at p. 1247.) Note that in some circumstances,
a single intolerable incident, such as a crime of violence against an employee by an
employer, or an employer’s ultimatum that an employee commit a crime, may
constitute a constructive discharge. (Id. at p. 1247, fn. 3.)
Sources and Authority
• “[W]hen an employer’s discharge of an employee violates fundamental principles
of public policy, the discharged employee may maintain a tort action and recover
damages traditionally available in such actions.” (Tameny v. Atlantic Richfield
Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66
Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)
• “In addition to statutes and constitutional provisions, valid administrative
regulations may also serve as a source of fundamental public policy that impacts
on an employer’s right to discharge employees when such regulations implement
fundamental public policy found in their enabling statutes.” (D’sa v. Playhut, Inc.
(2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal citation omitted.)
• “Plaintiffs assert, in essence, that they were terminated for refusing to engage in
conduct that violated fundamental public policy, to wit, nonconsensual sexual
acts. They also assert, in effect, that they were discharged in retaliation for
attempting to exercise a fundamental right—the right to be free from sexual
assault and harassment. Under either theory, plaintiffs, in short, should have been
granted leave to amend to plead a cause of action for wrongful discharge in
violation of public policy.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 91 [276
Cal.Rptr. 130, 801 P.2d 373].)
• “Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the employment
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relationship is actually severed involuntarily by the employer’s acts, against the
employee’s will. As a result, a constructive discharge is legally regarded as a
firing rather than a resignation.” (Turner, supra, 7 Cal.4th at pp. 1244–1245,
internal citation omitted.)
• “Although situations may exist where the employee’s decision to resign is
unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to
justify a reasonable employee’s decision to resign is normally a question of fact.
[Citation.]’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 827 [166 Cal.Rptr.3d 242].)
• “In order to establish a constructive discharge, an employee must plead and
prove . . . that the employer either intentionally created or knowingly permitted
working conditions that were so intolerable or aggravated at the time of the
employee’s resignation that a reasonable employer would realize that a
reasonable person in the employee’s position would be compelled to resign.”
(Turner, supra, 7 Cal.4th at p. 1251.)
• “The conditions giving rise to the resignation must be sufficiently extraordinary
and egregious to overcome the normal motivation of a competent, diligent, and
reasonable employee to remain on the job to earn a livelihood and to serve his
or her employer. The proper focus is on whether the resignation was coerced, not
whether it was simply one rational option for the employee.” (Turner, supra, 7
Cal.4th at p. 1246.)
• “In order to amount to a constructive discharge, adverse working conditions
must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the
situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts
of [misconduct] are insufficient’ to support a constructive discharge claim.
Moreover, a poor performance rating or a demotion, even when accompanied by
reduction in pay, does not by itself trigger a constructive discharge” (Turner,
supra, 7 Cal.4th at p. 1247, footnote and internal citation omitted.)
• “The mere existence of illegal conduct in a workplace does not, without more,
render employment conditions intolerable to a reasonable employee.” (Turner,
supra, 7 Cal.4th at p. 1254.)
• “[T]he standard by which a constructive discharge is determined is an objective
one—the question is ‘whether a reasonable person faced with the allegedly
intolerable employer actions or conditions of employment would have no
reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248,
internal citations omitted.)
• “[U]nder Turner, the proper focus is on the working conditions themselves, not
on the plaintiff’s subjective reaction to those conditions.” (Simers v. Los Angeles
Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1272 [227 Cal.Rptr.3d
695], original italics.)
• “The length of time the plaintiff remained on the job may be one relevant factor
in determining the intolerability of employment conditions from the standpoint
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of a reasonable person.” (Turner, supra, 7 Cal.4th at p. 1254.)
• “[T]here was, as the trial court found, substantial evidence that plaintiff’s age
and disability were ‘substantial motivating reason[s]’ for the adverse employment
action or actions to which plaintiff was subjected. But the discriminatory motive
for plaintiff’s working conditions has no bearing on whether the evidence was
sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at
p. 1271.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 235
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G, Constructive
Discharge, ¶¶ 4:405–4:406, 4:409–4:411, 4:421–4:422 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-(I)B, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:4, 5:45–5:47, 5:50,
5:70, 5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.45–5.46
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.15, 249.50 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.31, 100.32, 100.36–100.38 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)
2433–2440 Reserved for Future Use
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2441. Discrimination Against Member of Military—Essential
Factual Elements (Mil. & Vet. Code, § 394)
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun] because of [his/her/
nonbinary pronoun] [current/past] service in the [United States/California]
military. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] was an employee of [name of defendant];
2. That [name of plaintiff] [was serving/had served] in the [specify
military branch, e.g., California National Guard];
3. That [name of defendant] discharged [name of plaintiff];
4. That [name of plaintiff]’s [[current/past] service in the armed
forces/need to report for required military [duty/training]] was a
substantial motivating reason for [name of defendant]’s decision to
discharge [name of plaintiff];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2012; Revised June 2013, June 2014
Directions for Use
Military and Veterans Code section 394 prohibits employment discrimination against
members of the military on two grounds. First, discrimination is prohibited based
simply on the plaintiff’s military membership or service. In other words, an
employer, public or private, may not refuse to hire or discharge someone based on
the fact that the person serves or has served in the armed forces. (Mil. & Vet. Code,
§ 394(a), (b).) Second, a military-member employee is protected from discharge or
other adverse actions because of a requirement to participate in military duty or
training. (Mil. & Vet. Code, § 394(d).) For element 4, choose the appropriate option.
The statute prohibits a refusal to hire based on military status, and also reaches a
broad range of adverse employment actions short of actual discharge. (See Mil. &
Vet. Code, § 394(a), (b), (d) [prohibiting prejudice, injury, harm].) Elements 1, 3, 4,
and 6 may be modified to refer to seeking employment and refusal to hire. Elements
3, 4, and 6 may be modified to allege constructive discharge or adverse acts other
than discharge. See CACI No. 2509, “Adverse Employment Action” Explained, and
CACI No. 2510, “Constructive Discharge” Explained, for instructions under the
Fair Employment and Housing Act that may be adapted for use with this instruction.
Element 4 uses the term “substantial motivating reason” to express both intent and
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causation between the the employee’s military service and the discharge.
“Substantial motivating reason” has been held to be the appropriate standard under
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies to
cases alleging military service discrimination under section 394 has not been
addressed by the courts. However, military and veteran status is now a protected
category under the FEHA. (See Gov. Code, § 12940(a).
Sources and Authority
• Discrimination Against Members of the Military. Military and Veterans Code
section 394.
• Military and Veteran Status Protected Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “[I]ndividual employees may not be held personally liable under section 394 for
alleged discriminatory acts that arise out of the performance of regular and
necessary personnel management duties.” (Haligowski v. Superior Court (2011)
200 Cal.App.4th 983, 998 [134 Cal. Rptr. 3d 214].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 369, 472
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
2442–2499. Reserved for Future Use
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VF-2400. Breach of Employment Contract—Unspecified Term
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into an
employment relationship?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] promise, by words or conduct, not to
[discharge/demote] [name of plaintiff] except for good cause?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] substantially perform [his/her/nonbinary
pronoun] job duties?
3. Yes No
3. If your answer to question 3 is yes, skip question 4 and answer
question 5. If you answered no, answer question 4.
4. Was [name of plaintiff]’s performance excused or prevented?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] [discharge/demote] [name of plaintiff]
without good cause?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff] harmed by the [discharge/demotion]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
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the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. This verdict form is based
on CACI No. 2401, Breach of Employment Contract—Unspecified Term—Essential
Factual Elements.
Questions 3 and 4 should be deleted if substantial performance is not at issue.
The breakdown of damages is optional; depending on the circumstances, users may
wish to break down the damages even further.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-2401. Breach of Employment Contract—Unspecified
Term—Constructive Discharge
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into an
employment relationship?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] promise, by words or conduct, not to
[discharge/demote] [name of plaintiff] except for good cause?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] substantially perform [his/her/nonbinary
pronoun] job duties?
3. Yes No
3. If your answer to question 3 is yes, skip question 4 and answer
question 5. If you answered no, answer question 4.
4. Was [name of plaintiff]’s performance excused or prevented?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] intentionally create or knowingly permit
working conditions to exist that were so intolerable that a
reasonable person in [name of plaintiff]’s position would have had
no reasonable alternative except to resign?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of plaintiff] resign because of the intolerable
conditions?
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6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of plaintiff] harmed by the loss of employment?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of each case.
This verdict form is based on CACI No. 2401, Breach of Employment
Contract—Unspecified Term—Actual or Constructive Discharge—Essential Factual
Elements.
Questions 3 and 4 should be deleted if substantial performance is not at issue.
The breakdown of damages is optional; depending on the circumstances, users may
wish to break down the damages even further.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-2402. Breach of Employment Contract—Specified Term
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into an
employment contract that specified a length of time for which
[name of plaintiff] would remain employed?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] substantially perform [his/her/nonbinary
pronoun] job duties?
2. Yes No
2. If your answer to question 2 is yes, skip question 3 and answer
question 4. If you answered no, answer question 3.
3. Was [name of plaintiff]’s performance excused or prevented?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] breach the employment contract by
[discharging/demoting] [name of plaintiff] before the end of the
term of the contract?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff] harmed by the [discharge/demotion]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
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[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of each case.
This verdict form is based on CACI No. 2420, Breach of Employment
Contract—Specified Term—Essential Factual Elements.
Questions 2 and 3 should be deleted if substantial performance is not at issue.
The breakdown of damages is optional; depending on the circumstances, users may
wish to break down the damages even further.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-2403. Breach of Employment Contract—Specified
Term—Good-Cause Defense
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into an
employment contract that specified a length of time for which
[name of plaintiff] would remain employed?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] substantially perform [his/her/nonbinary
pronoun] job duties?
2. Yes No
2. If your answer to question 2 is yes, skip question 3 and answer
question 4. If you answered no, answer question 3.
3. Was [name of plaintiff]’s performance excused or prevented?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [discharge/demote] [name of plaintiff]
before the end of the term of the contract?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] have good cause to [discharge/demote]
[name of plaintiff]?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff] harmed by the [discharge/demotion]?
6. Yes No
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6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of each case.
This verdict form is based on CACI No. 2420, Breach of Employment
Contract—Specified Term—Essential Factual Elements, and CACI No. 2421, Breach
of Employment Contract—Specified Term—Good-Cause Defense.
Questions 2 and 3 should be deleted if substantial performance is not at issue.
The breakdown of damages is optional; depending on the circumstances, users may
wish to break down the damages even further.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-2404. Employment—Breach of the Implied Covenant of Good
Faith and Fair Dealing
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into an
employment relationship?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] substantially perform [his/her/nonbinary
pronoun] job duties?
2. Yes No
2. If your answer to question 2 is yes, skip question 3 and answer
question 4. If you answered no, answer question 3.
3. Was [name of plaintiff]’s performance excused or prevented?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [specify conduct that plaintiff claims
prevented plaintiff from receiving the benefits under the contract]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] fail to act fairly and in good faith?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff] harmed by [name of defendant]’s failure to
act fairly and in good faith?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
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answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2423, Breach of the Implied Covenant of
Good Faith and Fair Dealing—Employment Contract—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 2 and 3 should be deleted if substantial performance is not at issue.
The breakdown of damages in question 7 is optional; depending on the
circumstances, users may wish to break down the damages even further.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2405. Breach of the Implied Covenant of Good Faith and Fair
Dealing—Affirmative Defense—Good Faith Mistaken Belief
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] and [name of defendant] enter into an
employment agreement?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] substantially perform [his/her/nonbinary
pronoun] job duties?
2. Yes No
2. If your answer to question 2 is yes, skip question 3 and answer
question 4. If you answered no, answer question 3.
3. Was [name of plaintiff]’s performance excused or prevented?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [specify conduct that plaintiff claims
prevented plaintiff from receiving the benefits under the contract]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct based on an honest belief that
[insert alleged mistake]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, skip question 6 and answer question 7.
6. If true, would [insert alleged mistake] have been a legitimate and
reasonable business purpose for the conduct?
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
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answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did [name of defendant] fail to act fairly and in good faith?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of plaintiff] harmed by [name of defendant]’s failure to
act in good faith?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss: $ ]
[b. Future economic loss: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2423, Breach of the Implied Covenant of
Good Faith and Fair Dealing—Employment Contract—Essential Factual Elements,
and CACI No. 2424, Affırmative Defense—Breach of the Implied Covenant of Good
Faith and Fair Dealing—Good Faith Though Mistaken Belief.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 2 and 3 should be deleted if substantial performance is not at issue.
The breakdown of damages in question 9 is optional; depending on the
circumstances, users may wish to break down the damages even further.
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If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2406. Wrongful Discharge in Violation of Public Policy
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] employed by [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] discharged?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff]’s [insert alleged activity protected by public
policy, e.g., “refusal to engage in price fixing”] a substantial
motivating reason for [name of defendant]’s decision to discharge
[name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did the discharge cause [name of plaintiff] harm?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2430, Wrongful Discharge in Violation of
Public Policy—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
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findings that are required in order to calculate the amount of prejudgment interest.
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VF-2407. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Violate Public Policy
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] employed by [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] require [name of plaintiff] to [specify
alleged conduct in violation of public policy, e.g., “engage in price
fixing”] as a condition of employment?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was this requirement so intolerable that a reasonable person in
[name of plaintiff]’s position would have had no reasonable
alternative except to resign?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] resign because of this requirement?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the requirement a substantial factor in causing harm to
[name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2431, Constructive Discharge in Violation
of Public Policy—Plaintiff Required to Violate Public Policy.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
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forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2408. Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Endure Intolerable Conditions for
Improper Purpose That Violates Public Policy
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] employed by [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] subjected to working conditions that
violated public policy, in that [describe conditions imposed on the
employee that constitute the violation, e.g., “plaintiff was treated
intolerably in retaliation for filing a workers’ compensation claim”]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] intentionally create or knowingly permit
these working conditions?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Were these working conditions so intolerable that a reasonable
person in [name of plaintiff]’s position would have had no
reasonable alternative except to resign?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] resign because of these working conditions?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Were the working conditions a substantial factor in causing harm
to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
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Directions for Use
This verdict form is based on CACI No. 2432, Constructive Discharge in Violation
of Public Policy—Plaintiff Required to Endure Intolerable Conditions for Improper
Purpose That Violates Public Policy.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 2432, Constructive Discharge in Violation
of Public Policy—Plaintiff Required to Endure Intolerable Conditions for Improper
Purpose That Violates Public Policy.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2409–VF-2499. Reserved for Future Use
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FAIR EMPLOYMENT AND HOUSING ACT
2500. Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))
2501. Affirmative Defense—Bona fide Occupational Qualification
2502. Disparate Impact—Essential Factual Elements (Gov. Code, § 12940(a))
2503. Affirmative Defense—Business Necessity/Job Relatedness
2504. Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense
2505. Retaliation—Essential Factual Elements (Gov. Code, § 12940(h))
2506. Limitation on Remedies—After-Acquired Evidence
2507. “Substantial Motivating Reason” Explained
2508. Failure to File Timely Administrative Complaint (Gov. Code,
§ 12960(e))—Plaintiff Alleges Continuing Violation
2509. “Adverse Employment Action” Explained
2510. “Constructive Discharge” Explained
2511. Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)
2512. Limitation on Remedies—Same Decision
2513. Business Judgment
2514–2519. Reserved for Future Use
2520. Quid pro quo Sexual Harassment—Essential Factual Elements
2521A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential
Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
2521B. Work Environment Harassment—Conduct Directed at Others—Essential
Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
2521C. Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))
2522A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential
Factual Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2522B. Work Environment Harassment—Conduct Directed at Others—Essential
Factual Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2522C. Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2523. “Harassing Conduct” Explained
2524. “Severe or Pervasive” Explained
2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))
2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment
by a Supervisor)
2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential
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Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))
2528. Failure to Prevent Harassment by Nonemployee (Gov. Code, § 12940(j))
2529–2539. Reserved for Future Use
2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual
Elements (Gov. Code, § 12940(m))
2542. Disability Discrimination—“Reasonable Accommodation” Explained
2543. Disability Discrimination—“Essential Job Duties” Explained (Gov. Code,
§§ 12926(f), 12940(a)(1))
2544. Disability Discrimination—Affirmative Defense—Health or Safety Risk
2545. Disability Discrimination—Affirmative Defense—Undue Hardship
2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage
in Interactive Process (Gov. Code, § 12940(n))
2547. Disability-Based Associational Discrimination—Essential Factual Elements
2548. Disability Discrimination—Refusal to Make Reasonable Accommodation in
Housing (Gov. Code, § 12927(c)(1))
2549. Disability Discrimination—Refusal to Permit Reasonable Modification to
Housing Unit (Gov. Code, § 12927(c)(1))
2550–2559. Reserved for Future Use
2560. Religious Creed Discrimination—Failure to Accommodate—Essential
Factual Elements (Gov. Code, § 12940(l))
2561. Religious Creed Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12940(l)(1), 12926(u))
2562–2569. Reserved for Future Use
2570. Age Discrimination—Disparate Treatment—Essential Factual Elements
2571–2599. Reserved for Future Use
VF-2500. Disparate Treatment (Gov. Code, § 12940(a))
VF-2501. Disparate Treatment—Affirmative Defense—Bona fide Occupational
Qualification (Gov. Code, § 12940(a))
VF-2502. Disparate Impact (Gov. Code, § 12940(a))
VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative
Defense—Business Necessity/Job Relatedness—Rebuttal to Business
Necessity/Job Relatedness Defense
VF-2504. Retaliation (Gov. Code, § 12940(h))
VF-2505. Quid pro quo Sexual Harassment
VF-2506A. Work Environment Harassment—Conduct Directed at
Plaintiff—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
VF-2506B. Work Environment Harassment—Conduct Directed at
Others—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
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VF-2506C. Work Environment Harassment—Sexual Favoritism—Employer or
Entity Defendant (Gov. Code, §§ 12923, 12940(j))
VF-2507A. Work Environment Harassment—Conduct Directed at
Plaintiff—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
VF-2507B. Work Environment Harassment—Conduct Directed at
Others—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
VF-2507C. Work Environment Harassment—Sexual Favoritism—Individual
Defendant (Gov. Code, §§ 12923, 12940(j))
VF-2508. Disability Discrimination—Disparate Treatment
VF-2509. Disability Discrimination—Reasonable Accommodation (Gov. Code,
§ 12940(m))
VF-2510. Disability Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, § 12940(m))
VF-2511. Religious Creed Discrimination—Failure to Accommodate (Gov. Code,
§ 12940(l))
VF-2512. Religious Creed Discrimination—Failure to Accommodate—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12926(u), 12940(l))
VF-2513. Disability Discrimination—Reasonable Accommodation—Failure to
Engage in Interactive Process (Gov. Code, § 12940(n))
VF-2514. Failure to Prevent Harassment, Discrimination, or Retaliation
VF-2515. Limitation on Remedies—Same Decision
VF-2516–VF-2599. Reserved for Future Use
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2500. Disparate Treatment—Essential Factual Elements (Gov.
Code, § 12940(a))
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
3. [or]
3. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
3. [or]
3. [That [name of plaintiff] was constructively discharged;]
4. That [name of plaintiff]’s [protected status—for example, race,
gender, or age] was a substantial motivating reason for [name of
defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised April 2009, June 2011, June 2012, June 2013, May
2020
Directions for Use
This instruction is intended for use when a plaintiff alleges disparate treatment
discrimination under the FEHA against an employer or other covered entity.
Disparate treatment occurs when an employer treats an individual less favorably
than others because of the individual’s protected status. In contrast, disparate impact
(the other general theory of discrimination) occurs when an employer has an
employment practice that appears neutral but has an adverse impact on members of
a protected group. For disparate impact claims, see CACI No. 2502, Disparate
Impact—Essential Factual Elements.
If element 1 is given, the court may need to instruct the jury on the statutory
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definition of “employer” under the FEHA. Other covered entities under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
Read the first option for element 3 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 3 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
4 if either the second or third option is included for element 3.
Note that there are two causation elements. There must be a causal link between the
discriminatory animus and the adverse action (see element 4), and there must be a
causal link between the adverse action and the damage (see element 6). (See Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)
Element 4 requires that discrimination based on a protected classification be a
substantial motivating reason for the adverse action. (See Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also
CACI No. 2507, “Substantial Motivating Reason” Explained.) Modify element 4 if
plaintiff was not actually a member of the protected class, but alleges discrimination
because the plaintiff was perceived to be a member, or associated with someone
who was or was perceived to be a member, of the protected class. (See Gov. Code,
§ 12926(o).)
For damages instructions, see applicable instructions on tort damages.
Sources and Authority
• Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Perception and Association. Government Code section 12926(o).
• “Race” and “Protective Hairstyles.” Government Code section 12926(w), (x).
• “[C]onceptually the theory of ‘[disparate] treatment’ . . . is the most easily
understood type of discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion, sex or national
origin.” (Mixon v. Fair Employment and Housing Com. (1987) 192 Cal.App.3d
1306, 1317 [237 Cal.Rptr. 884], quoting Teamsters v. United States (1977) 431
U.S. 324, 335–336, fn. 15 [97 S.Ct. 1843, 52 L.Ed.2d 396].)
• “California has adopted the three-stage burden-shifting test for discrimination
claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93
S.Ct. 1817, 36 L.Ed. 2d 668]. ‘This so-called McDonnell Douglas test reflects
the principle that direct evidence of intentional discrimination is rare, and that
such claims must usually be proved circumstantially. Thus, by successive steps
of increasingly narrow focus, the test allows discrimination to be inferred from
facts that create a reasonable likelihood of bias and are not satisfactorily
explained.’ ” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307
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[115 Cal.Rptr.3d 453], internal citations omitted.)
• “The McDonnell Douglas framework was designed as ‘an analytical tool for use
by the trial judge in applying the law, not a concept to be understood and
applied by the jury in the factfinding process.’ ” (Abed v. Western Dental
Services, Inc. (2018) 23 Cal.App.5th 726, 737 [233 Cal.Rptr.3d 242].)
• “At trial, the McDonnell Douglas test places on the plaintiff the initial burden to
establish a prima facie case of discrimination. This step is designed to eliminate
at the outset the most patently meritless claims, as where the plaintiff is not a
member of the protected class or was clearly unqualified, or where the job he
sought was withdrawn and never filled. While the plaintiff’s prima facie burden
is ‘not onerous’, he must at least show ‘ “actions taken by the employer from
which one can infer, if such actions remain unexplained, that it is more likely
than not that such actions were ‘based on a [prohibited] discriminatory
criterion . . . .’ . . . .” . . .’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 354–355 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• “If, at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises. This presumption, though ‘rebuttable,’ is ‘legally
mandatory.’ Thus, in a trial, ‘[i]f the trier of fact believes the plaintiff’s evidence,
and if the employer is silent in the face of the presumption, the court must enter
judgment for the plaintiff because no issue of fact remains in the case.’ [¶]
Accordingly, at this trial stage, the burden shifts to the employer to rebut the
presumption by producing admissible evidence, sufficient to ‘raise[] a genuine
issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was
taken for a legitimate, nondiscriminatory reason. [¶] If the employer sustains this
burden, the presumption of discrimination disappears. The plaintiff must then
have the opportunity to attack the employer’s proffered reasons as pretexts for
discrimination, or to offer any other evidence of discriminatory motive. In an
appropriate case, evidence of dishonest reasons, considered together with the
elements of the prima facie case, may permit a finding of prohibited bias. The
ultimate burden of persuasion on the issue of actual discrimination remains with
the plaintiff.” (Guz, supra, 24 Cal.4th at pp. 355–356, internal citations omitted.)
• “The trial court decides the first two stages of the McDonnell Douglas test as
questions of law. If the plaintiff and defendant satisfy their respective burdens,
the presumption of discrimination disappears and the question whether the
defendant unlawfully discriminated against the plaintiff is submitted to the jury
to decide whether it believes the defendant’s or the plaintiff’s explanation.”
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965
[181 Cal.Rptr.3d 553].)
• “To succeed on a disparate treatment claim at trial, the plaintiff has the initial
burden of establishing a prima facie case of discrimination, to wit, a set of
circumstances that, if unexplained, permit an inference that it is more likely than
not the employer intentionally treated the employee less favorably than others on
prohibited grounds. Based on the inherent difficulties of showing intentional
discrimination, courts have generally adopted a multifactor test to determine if a
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plaintiff was subject to disparate treatment. The plaintiff must generally show
that: he or she was a member of a protected class; was qualified for the position
he sought; suffered an adverse employment action, and there were circumstances
suggesting that the employer acted with a discriminatory motive. [¶] On a
defense motion for summary judgment against a disparate treatment claim, the
defendant must show either that one of these elements cannot be established or
that there were one or more legitimate, nondiscriminatory reasons underlying the
adverse employment action.” (Jones v. Department of Corrections (2007) 152
Cal.App.4th 1367, 1379 [62 Cal.Rptr.3d 200], internal citations omitted.)
• “Although ‘[t]he specific elements of a prima facie case may vary depending on
the particular facts,’ the plaintiff in a failure-to-hire case ‘[g]enerally . . . must
provide evidence that (1) he [or she] was a member of a protected class, (2) he
[or she] was qualified for the position he [or she] sought . . . , (3) he [or she]
suffered an adverse employment action, such as . . . denial of an available job,
and (4) some other circumstance suggests discriminatory motive,’ such as that
the position remained open and the employer continued to solicit applications for
it.” (Abed, supra, 23 Cal.App.5th at p. 736.)
• “Although we recognize that in most cases, a plaintiff who did not apply for a
position will be unable to prove a claim of discriminatory failure to hire, a job
application is not an element of the claim.” (Abed, supra, 23 Cal.App.5th at p.
740, original italics.)
• “Employers who lie about the existence of open positions are not immune from
liability under the FEHA simply because they are effective in keeping protected
persons from applying.” (Abed, supra, 23 Cal.App.5th at p. 741.)
• “[Defendant] still could shift the burden to [plaintiff] by presenting admissible
evidence showing a legitimate, nondiscriminatory reason for terminating her. ‘It
is the employer’s honest belief in the stated reasons for firing an employee and
not the objective truth or falsity of the underlying facts that is at issue in a
discrimination case.’ . . . ‘[I]f nondiscriminatory, [the employer’s] true reasons
need not necessarily have been wise or correct. . . . While the objective
soundness of an employer’s proffered reasons supports their credibility . . . , the
ultimate issue is simply whether the employer acted with a motive to
discriminate illegally. Thus, “legitimate” reasons . . . in this context are reasons
that are facially unrelated to prohibited bias, and which, if true, would thus
preclude a finding of discrimination. . . .’ ” (Wills v. Superior Court (2011) 195
Cal.App.4th 143, 170–171 [125 Cal.Rptr.3d 1], original italics, internal citations
omitted.)
• “The burden therefore shifted to [plaintiff] to present evidence showing the
[defendant] engaged in intentional discrimination. To meet her burden, [plaintiff]
had to present evidence showing (1) the [defendant]’s stated reason for not
renewing her contract was untrue or pretextual; (2) the [defendant] acted with a
discriminatory animus in not renewing her contract; or (3) a combination of the
two.” (Swanson, supra, 232 Cal.App.4th at p. 966.)
• “Evidence that an employer’s proffered reasons were pretextual does not
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necessarily establish that the employer intentionally discriminated: ‘ “ ‘[I]t is not
enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.’ ” ’ However, evidence of pretext is
important: ‘ “[A] plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.” ’ ” (Diego v. City
of Los Angeles (2017) 15 Cal.App.5th 338, 350–351 [223 Cal.Rptr.3d 173],
internal citations omitted.)
• “While a complainant need not prove that [discriminatory] animus was the sole
motivation behind a challenged action, he must prove by a preponderance of the
evidence that there was a ‘causal connection’ between the employee’s protected
status and the adverse employment decision.” (Mixon, supra, 192 Cal.App.3d at
p. 1319.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a
“but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “In cases involving a comparison of the plaintiff’s qualifications and those of the
successful candidate, we must assume that a reasonable juror who might disagree
with the employer’s decision, but would find the question close, would not
usually infer discrimination on the basis of a comparison of qualifications alone.
In a close case, a reasonable juror would usually assume that the employer is
more capable of assessing the significance of small differences in the
qualifications of the candidates, or that the employer simply made a judgment
call. [Citation.] But this does not mean that a reasonable juror would in every
case defer to the employer’s assessment. If that were so, no job discrimination
case could ever go to trial. If a factfinder can conclude that a reasonable
employer would have found the plaintiff to be significantly better qualified for
the job, but this employer did not, the factfinder can legitimately infer that the
employer consciously selected a less-qualified candidate—something that
employers do not usually do, unless some other strong consideration, such as
discrimination, enters into the picture.” (Reeves v. MV Transportation, Inc.
(2010) 186 Cal.App.4th 666, 674–675 [111 Cal.Rptr.3d 896], original italics.)
• “While not all cases hold that ‘the disparity in candidates’ qualifications “must
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be so apparent as to jump off the page and slap us in the face to support a
finding of pretext” ’ the precedents do consistently require that the disparity be
substantial to support an inference of discrimination.” (Reeves, supra, 186
Cal.App.4th at p. 675, internal citation omitted.)
• “[Defendant] contends that a trial court must assess the relative strength and
nature of the evidence presented on summary judgment in determining if the
plaintiff has ‘created only a weak issue of fact.’ However, [defendant] overlooks
that a review of all of the evidence is essential to that assessment. The stray
remarks doctrine, as advocated by [defendant], goes further. It allows a court to
weigh and assess the remarks in isolation, and to disregard the potentially
damaging nature of discriminatory remarks simply because they are made by
‘nondecisionmakers, or [made] by decisionmakers unrelated to the decisional
process.’ [Defendant] also argues that ambiguous remarks are stray, irrelevant,
prejudicial, and inadmissible. However, ‘the task of disambiguating ambiguous
utterances is for trial, not for summary judgment.’ Determining the weight of
discriminatory or ambiguous remarks is a role reserved for the jury. The stray
remarks doctrine allows the trial court to remove this role from the jury.” (Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 540–541 [113 Cal.Rptr.3d 327, 235 P.3d
988], internal citations omitted; see also Gov. Code, § 12923(c) [Legislature
affirms the decision in Reid v. Google, Inc. in its rejection of the “stray remarks
doctrine”].)
• “[D]iscriminatory remarks can be relevant in determining whether intentional
discrimination occurred: ‘Although stray remarks may not have strong probative
value when viewed in isolation, they may corroborate direct evidence of
discrimination or gain significance in conjunction with other circumstantial
evidence. Certainly, who made the comments, when they were made in relation
to the adverse employment decision, and in what context they were made are all
factors that should be considered.” (Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1190–1191 [220 Cal.Rptr.3d 42].)
• “Discrimination on the basis of an employee’s foreign accent is a sufficient basis
for finding national origin discrimination.” (Galvan v. Dameron Hospital Assn.
(2019) 37 Cal.App.5th 549, 562 [250 Cal.Rptr.3d 16].)
• “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our
own statutes.” (Guz, supra, 24 Cal.4th at p. 354.)
• “We have held ‘that, in a civil action under the FEHA, all relief generally
available in noncontractual actions . . . may be obtained.’ This includes
injunctive relief.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
121, 132 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
• “The FEHA does not itself authorize punitive damages. It is, however, settled
that California’s punitive damages statute, Civil Code section 3294, applies to
actions brought under the FEHA . . . .” (Weeks v. Baker & McKenzie (1998) 63
Cal.App.4th 1128, 1147–1148 [74 Cal.Rptr.2d 510], internal citations omitted.)
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Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1143–1147
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:194, 7:200–7:201,
7:356, 7:391–7:392 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.44–2.82
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[2] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:2, 2:20 (Thomson Reuters)
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2501. Affirmative Defense—Bona fide Occupational Qualification
[Name of defendant] claims that [his/her/nonbinary pronoun/its] decision to
[discharge/[other adverse employment action]] [name of plaintiff] was lawful
because [he/she/nonbinary pronoun/it] was entitled to consider [protected
status—for example, race, gender, or age] as a job requirement. To
succeed, [name of defendant] must prove all of the following:
1. That the job requirement was reasonably necessary for the
operation of [name of defendant]’s business;
2. That [name of defendant] had a reasonable basis for believing that
substantially all [members of protected group] are unable to safely
and efficiently perform that job;
3. That it was impossible or highly impractical to consider whether
each [applicant/employee] was able to safely and efficiently
perform the job; and
4. That it was impossible or highly impractical for [name of
defendant] to rearrange job responsibilities to avoid using
[protected status] as a job requirement.
New September 2003
Directions for Use
An employer may assert the bona fide occupational qualification (BFOQ) defense
where the employer has a practice that on its face excludes an entire group of
individuals because of their protected status.
Sources and Authority
• Bona fide Occupational Qualification. Government Code section 12940(a)(1).
• Bona fide Occupational Qualification. Cal. Code Regs., tit. 2, § 7286.7(a).
• Bona fide Occupational Qualification Under Federal Law. 42 U.S.C. § 2000e-
2(e)(1).
• The BFOQ defense is a narrow exception to the general prohibition on
discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1986)
187 Cal.App.3d 1, 19 [231 Cal.Rptr. 769]; International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America, UAW v.
Johnson Controls, Inc. (1991) 499 U.S. 187, 201 [111 S.Ct. 1196, 113 L.Ed.2d
158].)
• “ ‘[I]n order to rely on the bona fide occupational qualification exception an
employer has the burden of proving that he had reasonable cause to believe, that
is, a factual basis for believing, that all or substantially all women would be
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unable to perform safely and efficiently the duties of the job involved.’ ”
(Bohemian Club, supra, 187 Cal.App.3d at p. 19, quoting Weeks v. Southern Bell
Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, 235.)
• “First, the employer must demonstrate that the occupational qualification is
‘reasonably necessary to the normal operation of [the] particular business.’
Secondly, the employer must show that the categorical exclusion based on [the]
protected class characteristic is justified, i.e., that ‘all or substantially all’ of the
persons with the subject class characteristic fail to satisfy the occupational
qualification.” (Johnson Controls, Inc. v. Fair Employment & Housing Com.
(1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158], quoting Weeks, supra, 408
F.2d at p. 235.)
• “Even if an employer can demonstrate that certain jobs require members of one
sex, the employer must also ‘bear the burden of proving that because of the
nature of the operation of the business they could not rearrange job
responsibilities . . .’ in order to reduce the BFOQ necessity.” (Johnson Controls,
Inc., supra, 218 Cal.App.3d at p. 541; see Hardin v. Stynchcomb (11th Cir. 1982)
691 F.2d 1364, 1370–1371.)
• “Alternatively, the employer could establish that age was a legitimate proxy for
the safety-related job qualifications by proving that it is ‘impossible or highly
impractical’ to deal with the older employees on an individualized basis.”
(Western Airlines, Inc. v. Criswell (1985) 472 U.S. 400, 414–415 [105 S.Ct.
2743, 86 L.Ed.2d 321], internal citation and footnote omitted.)
• “The Fair Employment and Housing Commission has interpreted the BFOQ
defense in a manner incorporating all of the federal requirements necessary for
its establishment. . . . [¶] The standards of the Commission are . . . in harmony
with federal law regarding the availability of a BFOQ defense.” (Bohemian
Club, supra, 187 Cal.App.3d at p. 19.)
• “By modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term to
qualifications that affect an employee’s ability to do the job.” (International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW, supra, 499 U.S. at p. 201.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1032,
1033
Chin et al., California Practice Guide: Employment Litigation, Ch.9-C, California
Fair Employment and Housing Act (FEHA), ¶¶ 9:2380, 9:2382, 9:2400, 9:2430 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 2.91–2.94
2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal
Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
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Discrimination, §§ 115.54[4], 115.101 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:84 (Thomson Reuters)
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2502. Disparate Impact—Essential Factual Elements (Gov. Code,
§ 12940(a))
[Name of plaintiff] claims that [name of defendant] had [an employment
practice/a selection policy] that wrongfully discriminated against [him/
her/nonbinary pronoun]. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[other covered relationship
to defendant]];
3. That [name of defendant] had [an employment practice of [describe
practice]/a selection policy of [describe policy]] that had a
disproportionate adverse effect on [describe protected group—for
example, persons over the age of 40];
4. That [name of plaintiff] is [protected status];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s [employment practice/selection policy]
was a substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised June 2011
Directions for Use
This instruction is intended for disparate impact employment discrimination claims.
Disparate impact occurs when an employer has an employment practice that appears
neutral but has an adverse impact on members of a protected group and cannot be
justified by business necessity. (Jumaane v. City of Los Angeles (2015) 241
Cal.App.4th 1390, 1405 [194 Cal.Rptr.3d 689].)
If element 1 is given, the court may need to instruct the jury on the statutory
definition of “employer” under the FEHA. Other covered entities under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
The court should consider instructing the jury on the meaning of “adverse impact,”
tailored to the facts of the case and the applicable law.
Sources and Authority
• Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Disparate Impact May Prove Age Discrimination. Government Code section
12941.1.
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• Justification for Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b), 11017(a),
(e).
• “Prohibited discrimination may . . . be found on a theory of disparate impact,
i.e., that regardless of motive, a facially neutral employer practice or policy,
bearing no manifest relationship to job requirements, in fact had a
disproportionate adverse effect on members of the protected class.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 [100 Cal.Rptr.2d 352, 8
P.3d 1089], internal citations omitted.)
• “A ‘disparate impact’ plaintiff . . . may prevail without proving intentional
discrimination . . . [However,] a disparate impact plaintiff ‘must not merely
prove circumstances raising an inference of discriminatory impact; he must
prove the discriminatory impact at issue.’ ” (Ibarbia v. Regents of the University
of California (1987) 191 Cal.App.3d 1318, 1329–1330 [237 Cal.Rptr. 92],
quoting Lowe v. City of Monrovia (9th Cir. 1985) 775 F.2d 998, 1004.)
• “ ‘To establish a prima facie case of discrimination, a plaintiff must show that
the facially neutral employment practice had a significantly discriminatory
impact. If that showing is made, the employer must then demonstrate that “any
given requirement [has] a manifest relationship to the employment in question,”
in order to avoid a finding of discrimination . . . Even in such a case, however,
the plaintiff may prevail, if he shows that the employer was using the practice as
a mere pretext for discrimination.’ ” (City and County of San Francisco v. Fair
Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr.
716], quoting Connecticut v. Teal (1982) 457 U.S. 440, 446–447 [102 S.Ct.
2525, 73 L.Ed.2d 130], internal citation omitted.)
• “It is well settled that valid statistical evidence is required to prove disparate
impact discrimination, that is, that a facially neutral policy has caused a
protected group to suffer adverse effects. ‘ “Once the employment practice at
issue has been identified, causation must be proved; that is, the plaintiff must
offer statistical evidence of a kind and degree sufficient to show that the practice
in question has caused the exclusion of applicants for jobs or promotions
because of their membership in a protected group. . . . [S]tatistical disparities
must be sufficiently substantial that they raise such an inference of
causation.” ’ ” (Jumaane, supra, 241 Cal.App.4th at p. 1405.)
• Under federal title VII, a plaintiff may establish an unlawful employment
practice based on disparate impact in one of two ways: (1) the plaintiff
demonstrates that a defendant uses a particular employment practice that causes
a disparate impact on the basis of a protected status, and the defendant “fails to
demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity”; or (2) the plaintiff demonstrates
that there is an alternative employment practice with less adverse impact, and the
defendant “refuses to adopt such alternative employment practice.” (42 U.S.C.
§ 2000e-2(k)(1)(A).)
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Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:530, 7:531, 7:535 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.21 (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[4] (Matthew Bender)
California Civil Practice: Employment Litigation, § 2:23 (Thomson Reuters)
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2503. Affirmative Defense—Business Necessity/Job Relatedness
[Name of defendant] claims that the [employment practice/selection
policy] is lawful because it is necessary to [his/her/nonbinary pronoun/its]
business. To succeed, [name of defendant] must prove both of the
following:
1. That the purpose of the [employment practice/selection policy] is
to operate the business safely and efficiently; and
2. That the [employment practice/selection policy] substantially
accomplishes this business purpose.
New September 2003
Directions for Use
The defense of business necessity is available for disparate impact claims but may
not be used as a defense against a claim of intentional discrimination.
CACI No. 2504, Disparate Impact—Rebuttal to Business Necessity/Job Relatedness
Defense, must be given if defendant asserts the defense of business necessity to a
disparate impact employment discrimination claim.
Sources and Authority
• Justification of Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b), 11017(a),
(e).
• “In order to meet its burden the [employer] must demonstrate a business
necessity for use of the [discriminatory employment practice] . . . . ‘The test is
whether there exists an overriding legitimate business purpose such that the
practice is necessary to the safe and efficient operation of the business. Thus, the
business purpose must be sufficiently compelling to override any [discriminatory]
impact; the challenged practice must effectively carry out the business purpose it
is alleged to serve; and there must be available no acceptable alternative policies
or practices which would better accomplish the business purpose advanced, or
accomplish it equally well with a lesser differential racial impact.’ ” (City and
County of San Francisco v. Fair Employment and Housing Com. (1987) 191
Cal.App.3d 976, 989–990 [236 Cal.Rptr. 716], quoting Robinson v. Lorillard
Corp. (4th Cir. 1971) 444 F.2d 791, 798.)
• The federal Civil Rights Act of 1991 states that one of its purposes is “to codify
the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme
Court in Griggs v. Duke Power Co., 401 U.S. 424], and in other Supreme Court
decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) [109
S.Ct. 2115, 104 L.Ed.2d 733].” (Civil Rights Act of 1991, Pub.L. No. 102-166,
§ 3(2) (Nov. 21, 1991) 105 Stat. 1071, 1071.)
• Federal title VII provides that while business necessity is a defense to a claim of
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disparate impact discrimination, “[a] demonstration that an employment practice
is required by business necessity may not be used as a defense against a claim
of intentional discrimination.” (42 U.S.C. § 2000e-2(k)(2).)
• “The touchstone is business necessity. If an employment practice which operates
to exclude [a protected group] cannot be shown to be related to job performance,
the practice is prohibited . . . Congress has placed on the employer the burden
of showing that any given requirement must have a manifest relationship to the
employment in question.” (Griggs, supra, 401 U.S. at pp. 431–432.)
• “[T]he employer may defend its policy or practice by proving that it is ‘job
related for the position in question and consistent with business necessity.’
Though the key terms have been used since Griggs, their meaning remains
unclear.” (1 Lindemann and Grossman, Employment Discrimination Law (3d ed.
1996) Adverse Impact, p. 106, footnotes omitted.)
• “[T]here is no requirement that the challenged practice be ‘essential’ or
‘indispensable’ to the employer’s business for it to pass muster: this degree of
scrutiny would be almost impossible for most employers to meet . . . .” (Wards
Cove Packing Co., Inc., supra, 490 U.S. at p. 659.) [Note: This portion of Wards
Cove may have been superseded by the Civil Rights Act of 1991.]
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Defamation, ¶¶ 7:571, 7:581, 7:915 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-L, Invasion
of Privacy, ¶ 7:915 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.90
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.21[4], 41.95[1] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Adverse
Impact, pp. 106–110; id. (2000 supp.) at pp. 62–64
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.23[4][d], 115.54[5], 115.102–115.103 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:25 (Thomson Reuters)
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2504. Disparate Impact—Rebuttal to Business Necessity/Job
Relatedness Defense
If [name of defendant] proves that the [employment practice/ selection
policy] is necessary to [his/her/nonbinary pronoun/its] business, then the
[employment practice/selection policy] is lawful unless [name of plaintiff]
proves both of the following:
1. That there was an alternative [employment practice/ selection
policy] that would have accomplished the business purpose
equally well; and
2. That the alternative [employment practice/selection policy] would
have had less adverse impact on [describe members of protected
group—for example, “persons over the age of 40”].
New September 2003
Directions for Use
Federal title VII requires a plaintiff to demonstrate that the employer refused to
adopt the alternative employment practice (see 42 U.S.C. § 2000e-2(K)(1)(A)(ii)).
There are no published court opinions determining if a similar requirement exists
under California law.
This instruction must be given if defendant asserts the defense of business necessity
to a disparate impact employment discrimination claim. (See CACI No. 2503,
Affırmative Defense—Business Necessity/Job Relatedness.)
Sources and Authority
• Justification for Disparate Impact. Cal. Code Regs., tit. 2, § 11010(b).
• Disparate Impact Under Federal Law. 42 U.S.C. § 2000e-2(k)(1)(A).
• “ ‘The test [of the business necessity defense] is whether there exists an
overriding legitimate business purpose such that the practice is necessary to the
safe and efficient operation of the business. Thus, the business purpose must be
sufficiently compelling to override any [discriminatory] impact; the challenged
practice must effectively carry out the business purpose it is alleged to serve;
and there must be available no acceptable alternative policies or practices which
would better accomplish the business purpose advanced, or accomplish it equally
well with a lesser differential [discriminatory] impact.’ ” (City and County of San
Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976,
989–990 [236 Cal.Rptr. 716].)
• “[T]he standards established by the FEHC for evaluating a facially neutral
selection criterion which has a discriminatory impact on a protected group are
identical to federal standards under Title VII.” (City and County of San
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Francisco, supra, 191 Cal.App.3d at p. 986.)
• “If an employer does then meet the burden of proving that its tests are ‘job
related,’ it remains open to the complaining party to show that other tests or
selection devices, without a similarly undesirable [discriminatory] effect, would
also serve the employer’s legitimate interest in ‘efficient and trustworthy
workmanship.’ ” (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [95
S.Ct. 2362, 45 L.Ed.2d 280], internal citation omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch.5(I)-E,
Defamation, ¶¶ 7:581, 7:590, 7:591, 7:915 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-L, Invasion
of Privacy, ¶ 7:915 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.21[2] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[2][d] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[2][c] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:26 (Thomson Reuters)
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2505. Retaliation—Essential Factual Elements (Gov. Code,
§ 12940(h))
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] for [describe activity protected by the FEHA]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [describe protected activity];
2. [That [name of defendant] [discharged/demoted/[specify other
adverse employment action]] [name of plaintiff];]
2. [or]
2. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
2. [or]
2. [That [name of plaintiff] was constructively discharged;]
3. That [name of plaintiff]’s [describe protected activity] was a
substantial motivating reason for [name of defendant]’s [decision
to [discharge/demote/[specify other adverse employment action]]
3. [name of plaintiff]/conduct];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s decision to [discharge/demote/[specify
other adverse employment action]] [name of plaintiff] was a
substantial factor in causing [him/her/nonbinary pronoun] harm.
[[Name of plaintiff] does not have to prove [discrimination/harassment] in
order to be protected from retaliation. If [he/she/nonbinary pronoun]
[reasonably believed that [name of defendant]’s conduct was unlawful/
requested a [disability/religious] accommodation], [he/she/nonbinary
pronoun] may prevail on a retaliation claim even if [he/she/nonbinary
pronoun] does not present, or prevail on, a separate claim for
[discrimination/harassment/[other]].]
New September 2003; Revised August 2007, April 2008, October 2008, April 2009,
June 2010, June 2012, December 2012, June 2013, June 2014, June 2016,
December 2016
Directions for Use
In elements 1 and 3, describe the protected activity in question. Government Code
section 12940(h) provides that it is unlawful to retaliate against a person “because
the person has opposed any practices forbidden under [Government Code sections
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12900 through 12966] or because the person has filed a complaint, testified, or
assisted in any proceeding under [the FEHA].” It is also unlawful to retaliate or
otherwise discriminate against a person for requesting an accommodation for
religious practice or disability, regardless of whether the request was granted. (Gov.
Code, § 12940(l)(4) [religious practice], (m)(2) [disability].)
Read the first option for element 2 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. For
example, the case may involve a pattern of employer harassment consisting of acts
that might not individually be sufficient to constitute retaliation, but taken as a
whole establish prohibited conduct. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) Give both the first
and second options if the employee presents evidence supporting liability under both
a sufficient-single-act theory or a pattern-of-harassment theory. (See, e.g., Wysinger
v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 423–424
[69 Cal.Rptr.3d 1].) Also select “conduct” in element 3 if the second option or both
the first and second options are included for element 2.
Retaliation in violation of the FEHA may be established by constructive discharge;
that is, that the employer intentionally created or knowingly permitted working
conditions to exist that were so intolerable that a reasonable person in the
employee’s position would have had no reasonable alternative other than to resign.
(See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76
Cal.Rptr.3d 632].) If constructive discharge is alleged, give the third option for
element 2 and also give CACI No. 2510, “Constructive Discharge” Explained. Also
select “conduct” in element 3 if the third option is included for element 2.
Element 3 requires that the protected activity be a substantial motivating reason for
the retaliatory acts. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; Alamo v. Practice Management Information
Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see also CACI No.
2507, “Substantial Motivating Reason” Explained.)
Note that there are two causation elements. There must be a causal link between the
retaliatory animus and the adverse action (see element 3), and there must be a
causal link between the adverse action and damages (see element 5). (See Mamou v.
Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)
This instruction has been criticized in dictum because it is alleged that there is no
element requiring retaliatory intent. (See Joaquin v. City of Los Angeles (2012) 202
Cal.App.4th 1207, 1229–1231 [136 Cal.Rptr.3d 472].) The court urged the Judicial
Council to redraft the instruction and the corresponding special verdict form so as to
clearly state that retaliatory intent is a necessary element of a retaliation claim under
FEHA.
The jury in the case was instructed per element 3 “that Richard Joaquin’s reporting
that he had been sexually harassed was a motivating reason for the City of Los
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Angeles’ decision to terminate Richard Joaquin’s employment or deny Richard
Joaquin promotion to the rank of sergeant.” The committee believes that the
instruction as given is correct for the intent element in a retaliation case. (Cf.
Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 127–132 [199
Cal.Rptr.3d 462] [for disability discrimination, “substantial motivating reason” is
only language required to express intent].) However, in cases such as Joaquin that
involve allegations of a prohibited motivating reason (based on a report of sexual
harassment) and a permitted motivating reason (based on a good faith belief that the
report was falsified), the instruction may need to be modified to make it clear that
plaintiff must prove that defendant acted based on the prohibited motivating reason
and not the permitted motivating reason.
Sources and Authority
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• Retaliation for Requesting Reasonable Accommodation for Religious Practice
and Disability Prohibited. Government Code section 12940(l)(4), (m)(2).
• “Person” Defined Under Fair Employment and Housing Act. Government Code
section 12925(d).
• Prohibited Retaliation. Title 2 California Code of Regulations section 11021.
• “[I]n order to establish a prima facie case of retaliation under the FEHA, a
plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment action, and (3) a
causal link existed between the protected activity and the employer’s action.
Once an employee establishes a prima facie case, the employer is required to
offer a legitimate, nonretaliatory reason for the adverse employment action. If
the employer produces a legitimate reason for the adverse employment action,
the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden
shifts back to the employee to prove intentional retaliation.” (Yanowitz, supra, 36
Cal.4th at p. 1042, internal citations omitted.)
• “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court,
that is charged with determining the facts.” (McCoy v. Pacific Maritime Assn.
(2013) 216 Cal.App.4th 283, 299 [156 Cal.Rptr.3d 851].)
• “It is well established that a plaintiff in a retaliation case need only prove that a
retaliatory animus was at least a substantial or motivating factor in the adverse
employment decision.” (George v. California Unemployment Ins. Appeals Bd.
(2009) 179 Cal.App.4th 1475, 1492 [102 Cal.Rptr.3d 431].)
• “Retaliation claims are inherently fact-specific, and the impact of an employer’s
action in a particular case must be evaluated in context. Accordingly, although
an adverse employment action must materially affect the terms, conditions, or
privileges of employment to be actionable, the determination of whether a
particular action or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the affected employee as
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well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at p.
1052.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively
the alleged retaliatory acts, there is no requirement that an employer’s retaliatory
acts constitute one swift blow, rather than a series of subtle, yet damaging,
injuries. Enforcing a requirement that each act separately constitute an adverse
employment action would subvert the purpose and intent of the statute.”
(Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations omitted.)
• “[U]nder certain circumstances, a retaliation claim may be brought by an
employee who has complained of or opposed conduct, even when a court or jury
subsequently determines the conduct actually was not prohibited by the FEHA.
Indeed, this precept is well settled. An employee is protected against retaliation
if the employee reasonably and in good faith believed that what he or she was
opposing constituted unlawful employer conduct such as sexual harassment or
sexual discrimination.” (Miller v. Department of Corr. (2005) 36 Cal.4th 446,
473–474 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations omitted.)
• “Clearly, section 12940, subdivision (h) encompasses a broad range of protected
activity. An employee need not use specific legal terms or buzzwords in
opposing discrimination. Nor is it necessary for an employee to file a formal
charge. The protected activity element may be established by evidence that the
plaintiff threatened to file a discrimination charge, by a showing that the plaintiff
mistakenly, but reasonably and sincerely believed he was opposing
discrimination, or by evidence an employer believed the plaintiff was a potential
witness in another employee’s FEHA action.” (Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 652 [163 Cal.Rptr.3d 392],
internal citations and footnote omitted.)
• “ ‘Standing alone, an employee’s unarticulated belief that an employer is
engaging in discrimination will not suffice to establish protected conduct for the
purposes of establishing a prima facie case of retaliation, where there is no
evidence the employer knew that the employee’s opposition was based upon a
reasonable belief that the employer was engaging in discrimination.’
‘[C]omplaints about personal grievances or vague or conclusory remarks that
fail to put an employer on notice as to what conduct it should investigate will
not suffice to establish protected conduct.’ [¶] But employees need not explicitly
and directly inform their employer that they believe the employer’s conduct was
discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez v.
Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046 [207
Cal.Rptr.3d 120], internal citation omitted.)
• “The relevant question . . . is not whether a formal accusation of discrimination
is made but whether the employee’s communications to the employer sufficiently
convey the employee’s reasonable concerns that the employer has acted or is
acting in an unlawful discriminatory manner.” (Husman v. Toyota Motor Credit
Corp. (2017) 12 Cal.App.5th 1168, 1193 [220 Cal.Rptr.3d 42].)
• “Notifying one’s employer of one’s medical status, even if such medical status
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constitutes a ‘disability’ under FEHA, does not fall within the protected activity
identified in subdivision (h) of section 12940—i.e., it does not constitute
engaging in opposition to any practices forbidden under FEHA or the filing of a
complaint, testifying, or assisting in any proceeding under FEHA.” (Moore v.
Regents of University of California (2016) 248 Cal.App.4th 216, 247 [206
Cal.Rptr.3d 841].)
• “[Plaintiff]’s advocacy for the disabled community and opposition to elimination
of programs that might benefit that community do not fall within the definition
of protected activity. [Plaintiff] has not shown the [defendant]’s actions amounted
to discrimination against disabled citizens, but even if they could be so
construed, discrimination by an employer against members of the general public
is not a prohibited employment practice under the FEHA.” (Dinslage v. City and
County of San Francisco (2016) 5 Cal.App.5th 368, 383 [209 Cal.Rptr.3d 809],
original italics.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the
conditions of employment. The refusal to promote [plaintiff] is an adverse
employment action under FEHA. There was also a pattern of conduct, the
totality of which constitutes an adverse employment action. This includes
undeserved negative job reviews, reductions in his staff, ignoring his health
concerns and acts which caused him substantial psychological harm.” (Wysinger,
supra, 157 Cal.App.4th at p. 424, internal citations omitted.)
• “A long period between an employer’s adverse employment action and the
employee’s earlier protected activity may lead to the inference that the two
events are not causally connected. But if between these events the employer
engages in a pattern of conduct consistent with a retaliatory intent, there may be
a causal connection.” (Wysinger, supra, 157 Cal.App.4th at p. 421, internal
citation omitted.)
• “Both direct and circumstantial evidence can be used to show an employer’s
intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made
by decisionmakers displaying a retaliatory motive.’ Circumstantial evidence
typically relates to such factors as the plaintiff’s job performance, the timing of
events, and how the plaintiff was treated in comparison to other workers.”
(Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 [119 Cal.Rptr.2d
131], internal citations omitted.)
• “The retaliatory motive is ‘proved by showing that plaintiff engaged in protected
activities, that his employer was aware of the protected activities, and that the
adverse action followed within a relatively short time thereafter.’ ‘The causal
link may be established by an inference derived from circumstantial evidence,
“such as the employer’s knowledge that the [employee] engaged in protected
activities and the proximity in time between the protected action and allegedly
retaliatory employment decision.” ’ ” (Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 615 [262 Cal.Rptr. 842], internal citations omitted.)
• “[A]n employer generally can be held liable for the retaliatory actions of its
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supervisors.” (Wysinger, supra, 157 Cal.App.4th at p. 420.)
• “Plaintiff, although a partner, is a person whom section 12940, subdivision (h)
protects from retaliation for opposing the partnership-employer’s harassment
against those employees.” (Fitzsimons v. California Emergency Physicians
Medical Group (2012) 205 Cal.App.4th 1423, 1429 [141 Cal.Rptr.3d 265].)
• “[A]n employer may be found to have engaged in an adverse employment
action, and thus liable for retaliation under section 12940(h), ‘by permitting . . .
fellow employees to punish [him] for invoking [his] rights.’ We therefore hold
that an employer may be held liable for coworker retaliatory conduct if the
employer knew or should have known of coworker retaliatory conduct and either
participated and encouraged the conduct, or failed to take reasonable actions to
end the retaliatory conduct.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th
191, 213 [126 Cal.Rptr.3d 651], internal citation omitted.)
• “[T]he employer is liable for retaliation under section 12940, subdivision (h), but
nonemployer individuals are not personally liable for their role in that
retaliation.” (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158, 1173 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
• “ ‘The legislative purpose underlying FEHA’s prohibition against retaliation is to
prevent employers from deterring employees from asserting good faith
discrimination complaints . . . .’ Employer retaliation against employees who are
believed to be prospective complainants or witnesses for complainants
undermines this legislative purpose just as effectively as retaliation after the
filing of a complaint. To limit FEHA in such a way would be to condone ‘an
absurd result’ that is contrary to legislative intent. We agree with the trial court
that FEHA protects employees against preemptive retaliation by the employer.”
(Steele, supra, 162 Cal.App.4th at p. 1255, internal citations omitted.)
• “ ‘The plaintiff’s burden is to prove, by competent evidence, that the employer’s
proffered justification is mere pretext; i.e., that the presumptively valid reason for
the employer’s action was in fact a coverup. . . . In responding to the
employer’s showing of a legitimate reason for the complained-of action, the
plaintiff cannot “ ‘simply show the employer’s decision was wrong, mistaken, or
unwise. Rather, the employee ‘ “must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them “unworthy of credence,” . . . and hence infer “that
the employer did not act for the [asserted] non-discriminatory reasons.” ’ ” ’ ”
(Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1409 [194
Cal.Rptr.3d 689].)
• “The showing of pretext, while it may indicate retaliatory intent or animus, is
not the sole means of rebutting the employer’s evidence of nonretaliatory intent.
‘ “While ‘pretext’ is certainly a relevant issue in a case of this kind, making it a
central or necessary issue is not sound. The central issue is and should remain
whether the evidence as a whole supports a reasoned inference that the
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challenged action was the product of discriminatory or retaliatory animus. The
employer’s mere articulation of a legitimate reason for the action cannot answer
this question; it can only dispel the presumption of improper motive that would
otherwise entitle the employee to a judgment in his favor.” ’ ” (Light v.
Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [221
Cal.Rptr.3d 668], original italics.)
• “Government Code section 12940, subdivision (h), does not shield an employee
against termination or lesser discipline for either lying or withholding
information during an employer’s internal investigation of a discrimination
claim. In other words, public policy does not protect deceptive activity during an
internal investigation. Such conduct is a legitimate reason to terminate an at-will
employee.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th
1510, 1528 [152 Cal.Rptr.3d 154], footnotes omitted.)
• “Although appellant does not argue she was constructively discharged, such a
claim is not necessary to find unlawful retaliation.” (McCoy, supra, 216
Cal.App.4th at p. 301.)
• “The phrase ‘because of’ [in Gov. Code, § 12940(a)] is ambiguous as to the type
or level of intent (i.e., motivation) and the connection between that motivation
and the decision to treat the disabled person differently. This ambiguity is closely
related to [defendant]’s argument that it is liable only if motivated by
discriminatory animus. [¶] The statutory ambiguity in the phrase ‘because of”
was resolved by our Supreme Court about six months after the first jury trial [in
Harris, supra, 56 Cal.4th at p. 203].” (Wallace, supra, 245 Cal.App.4th at p.
127.)
• “ ‘[W]hile discrimination may be carried out by means of speech, such as a
written notice of termination, and an illicit animus may be evidenced by speech,
neither circumstance transforms a discrimination suit to one arising from speech.
What gives rise to liability is not that the defendant spoke, but that the defendant
denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of
a discriminatory or retaliatory consideration.’ ” (Laker v. Board of Trustees of
California State University (2019) 32 Cal.App.5th 745, 772 [244 Cal.Rptr.3d
238].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1028,
1052–1054
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:121–7:205 (The Rutter
Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.83–2.88
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.131 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
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Discrimination, §§ 115.37, 115.94 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:74–2:75 (Thomson Reuters)
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2506. Limitation on Remedies—After-Acquired Evidence
[Name of defendant] claims that after [he/she/nonbinary pronoun/it]
[discharged/refused to hire] [name of plaintiff], [he/she/nonbinary pronoun/
it] discovered that [name of plaintiff] [describe misconduct, e.g., had
provided a false Social Security number]. [Name of defendant] claims that
[he/she/nonbinary pronoun/it] would have [discharged/refused to hire]
[name of plaintiff] anyway if [he/she/nonbinary pronoun/it] had known that
[name of plaintiff] [describe misconduct]. You must decide whether [name
of defendant] has proved all of the following:
1. That [name of plaintiff] [describe misconduct];
2. That [name of plaintiff]’s misconduct was sufficiently severe that
[name of defendant] would have [discharged/refused to hire] [him/
her/nonbinary pronoun] because of that misconduct alone had
[name of defendant] known of it; and
3. That [name of defendant] would have [discharged/refused to hire]
[name of plaintiff] for [his/her/nonbinary pronoun] misconduct as a
matter of settled company policy.
[If you find that [name of defendant] has proved that [name of plaintiff]
[describe misconduct] and that had [name of defendant] known of the
misconduct earlier, [he/she/nonbinary pronoun/it] would have [discharged/
refused to hire] [name of plaintiff] as required by the elements above,
then [name of plaintiff] may recover damages only for any time before the
date on which [name of defendant] discovered the misconduct. [[Name of
defendant] must prove the date of discovery if it is contested.]]
New September 2003; Revised June 2016, December 2016, May 2019
Directions for Use
The doctrine of after-acquired evidence refers to an employer’s discovery, after an
allegedly wrongful termination of employment or refusal to hire, of information that
would have justified a lawful termination or refusal to hire. (Salas v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 428 [173 Cal.Rptr.3d 689, 327 P.3d 797].)
There is some uncertainty as to whether or not it is an equitable doctrine. (Compare
Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1173 [104
Cal.Rptr.2d 95] [doctrine is the basis for an equitable defense related to the
traditional defense of “unclean hands,” italics added] with Salas, supra, 59 Cal.4th
at p. 428 [omitting “equitable”].) If it is an equitable doctrine, then the fact-finding
in the elements of the instruction would be only advisory to the court, or the
elements could be found by the court itself as the trier of fact. (See Thompson,
supra, 86 Cal.App.4th at p. 1173; see also Hoopes v. Dolan (2008) 168 Cal.App.4th
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146, 156 [85 Cal.Rptr.3d 337] [jury’s factual findings are purely advisory because,
on equitable causes of action, the judge is the proper fact finder].)
After-acquired evidence is not a complete defense to liability, but may foreclose
otherwise available remedies. (Salas, supra, 59 Cal.4th at pp. 430−431.) Give the
optional last paragraph if the court decides to allow the jury to award damages or to
make a finding on damages. Add the last sentence of the paragraph if the date on
which the defendant discovered the after-acquired evidence is contested.
After-acquired evidence cases must be distinguished from mixed motive cases in
which the employer at the time of the employment action has two or more motives,
at least one of which is unlawful. (See Salas supra, 59 Cal.4th at p. 430; CACI No.
2512, Limitation on Remedies—Same Decision.)
Sources and Authority
• “In general, the after-acquired-evidence doctrine shields an employer from
liability or limits available relief where, after a termination, the employer learns
for the first time about employee wrongdoing that would have led to the
discharge in any event. Employee wrongdoing in after-acquired-evidence cases
generally falls into one of two categories: (1) misrepresentations on a resume or
job application; or (2) posthire, on-the-job misconduct.” (Camp v. Jeffer,
Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 [41 Cal.Rptr.2d
329].)
• “The after-acquired-evidence doctrine serves as a complete or partial defense to
an employee’s claim of wrongful discharge . . . To invoke this doctrine, ‘. . .
the employer must establish “that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the
employer had known of it” . . . [T]he employer . . . must show that such a
firing would have taken place as a matter of “settled” company policy.’ ”
(Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845–846 [77
Cal.Rptr.2d 12], internal citations omitted.)
• “Where an employer seeks to rely upon after-acquired evidence of wrongdoing,
it must first establish that the wrongdoing was of such severity that the employee
in fact would have been terminated on those grounds alone if the employer had
known of it at the time of the discharge.” (McKennon v. Nashville Banner
Publishing Co. (1995) 513 U.S. 352, 362–363 [115 S.Ct. 879, 130 L.Ed.2d
852].)
• “Courts must tread carefully in applying the after-acquired-evidence doctrine to
discrimination claims . . . . Where, as here, the discriminatory conduct was
pervasive during the term of employment, therefore, it would not be sound
public policy to bar recovery for injuries suffered while employed. In applying
the after-acquired-evidence doctrine, the equities between employer and
employee can be balanced by barring all portions of the employment
discrimination claim tied to the employee’s discharge.” (Murillo, supra, 65
Cal.App.4th at pp. 849–850.)
• “As the Supreme Court recognized in McKennon, the use of after-acquired
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evidence must ‘take due account of the lawful prerogatives of the employer in
the usual course of its business and the corresponding equities that it has arising
from the employee’s wrongdoing.’ We appreciate that the facts in McKennon
. . . presented a situation where balancing the equities should permit a finding
of employer liability—to reinforce the importance of antidiscrimination
laws—while limiting an employee’s damages—to take account of an employer’s
business prerogatives. However, the equities compel a different result where an
employee who is disqualified from employment by government-imposed
requirements nevertheless obtains a job by misrepresenting the pertinent
qualifications. In such a situation, the employee should have no recourse for an
alleged wrongful termination of employment.” (Camp, supra, 35 Cal.App.4th at
pp. 637–638, internal citation omitted.)
• “We decline to adopt a blanket rule that material falsification of an employment
application is a complete defense to a claim that the employer, while still
unaware of the falsification, terminated the employment in violation of the
employee’s legal rights.” (Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th
614, 617 [29 Cal.Rptr.2d 642].)
• “The doctrine [of after-acquired evidence] is the basis for an equitable defense
related to the traditional defense of ‘unclean hands’ . . . [¶] In the present case,
there were conflicts in the evidence concerning respondent’s actions, her
motivations, and the possible consequences of her actions within appellant’s
disciplinary system. The trial court submitted those factual questions to the jury
for resolution and then used the resulting special verdict as the basis for
concluding appellant was not entitled to equitable reduction of the damages
award.” (Thompson, supra, 86 Cal.App.4th at p. 1173.)
• “By definition, after-acquired evidence is not known to the employer at the time
of the allegedly unlawful termination or refusal to hire. In after-acquired
evidence cases, the employer’s alleged wrongful act in violation of the FEHA’s
strong public policy precedes the employer’s discovery of information that
would have justified the employer’s decision. To allow such after-acquired
evidence to be a complete defense would eviscerate the public policies embodied
in the FEHA by allowing an employer to engage in invidious employment
discrimination with total impunity.” (Salas, supra, 59 Cal.4th at p. 430.)
• “In after-acquired evidence cases, therefore, both the employee’s rights and the
employer’s prerogatives deserve recognition. The relative equities will vary from
case to case, depending on the nature and consequences of any wrongdoing on
either side, a circumstance that counsels against rigidity in fashioning appropriate
remedies in those actions where an employer relies on after-acquired evidence to
defeat an employee’s FEHA claims.” (Salas, supra, 59 Cal.4th at p. 430.)
• “Generally, the employee’s remedies should not afford compensation for loss of
employment during the period after the employer’s discovery of the evidence
relating to the employee’s wrongdoing. When the employer shows that
information acquired after the employee’s claim has been made would have led
to a lawful discharge or other employment action, remedies such as
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reinstatement, promotion, and pay for periods after the employer learned of such
information would be ‘inequitable and pointless,’ as they grant remedial relief
for a period during which the plaintiff employee was no longer in the
defendant’s employment and had no right to such employment.” (Salas, supra,
59 Cal.4th at pp. 430−431.)
• The remedial relief generally should compensate the employee for loss of
employment from the date of wrongful discharge or refusal to hire to the date on
which the employer acquired information of the employee’s wrongdoing or
ineligibility for employment. Fashioning remedies based on the relative equities
of the parties prevents the employer from violating California’s FEHA with
impunity while also preventing an employee or job applicant from obtaining lost
wages compensation for a period during which the employee or applicant would
not in any event have been employed by the employer. In an appropriate case, it
would also prevent an employee from recovering any lost wages when the
employee’s wrongdoing is particularly egregious.” (Salas, supra, 59 Cal.4th at p.
431, footnote omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 223
Chin et al., California Practice Guide: Employment Litigation Ch. 7-A, Title VII and
the California Fair Employment and Housing Act, ¶¶ 7:930–7:932 (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation Ch. 16-H, Other
Defenses—After-Acquired Evidence of Employee Misconduct, ¶¶ 16:615–16:616,
16:625, 16:635–16:637, 16:647 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.107
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.92 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.54[2] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:88 (Thomson Reuters)
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2507. “Substantial Motivating Reason” Explained
A “substantial motivating reason” is a reason that actually contributed
to the [specify adverse employment action]. It must be more than a remote
or trivial reason. It does not have to be the only reason motivating the
[adverse employment action].
New December 2007; Revised June 2013
Directions for Use
Read this instruction with CACI No. 2500, Disparate Treatment—Essential Factual
Elements, CACI No. 2505, Retaliation—Essential Factual Elements, CACI No.
2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements,
CACI No. 2560, Religious Creed Discrimination—Failure to
Accommodate—Essential Factual Elements, or CACI No. 2570, Age
Discrimination—Disparate Treatment—Essential Factual Elements.
Sources and Authority
• Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Causation Under Federal Law. Title 42 United States Code section 2000e-2(m).
• “Substantial Motivating Factor” Explained. Title 2 California Code of
Regulations section 11009(c).
• “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our
own statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 [100
Cal.Rptr.2d 352, 8 P.3d 1089].)
• “While a complainant need not prove that [discriminatory] animus was the sole
motivation behind a challenged action, he must prove by a preponderance of the
evidence that there was a ‘causal connection’ between the employee’s protected
status and the adverse employment decision.” (Mixon v. Fair Employment and
Housing Com. (1987) 192 Cal.App.3d 1306, 1319 [237 Cal.Rptr. 884].)
• “The employee need not show ‘he would have in any event been rejected or
discharged solely on the basis of his race, without regard to the alleged
deficiencies. . . .’ In other words, ‘while a complainant need not prove that
racial animus was the sole motivation behind the challenged action, he must
prove by a preponderance of the evidence that there was a “causal connection”
between the employee’s protected status and the adverse employment decision.’ ”
(Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665 [8
Cal.Rptr.2d 151], citing McDonald v. Santa Fe Trail Transp. Co. (1976) 427
U.S. 273, 282, fn. 10 [96 S.Ct. 2574, 49 L.Ed.2d 493, 502] and Mixon, supra,
192 Cal.App.3d at p. 1319.)
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• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris v. City of Santa Monica (2013) 56
Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49], original italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a
“but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “Although [plaintiff] contends that a jury in an employment discrimination case
would not draw any meaningful distinction between ‘a motivating reason’ and ‘a
substantial motivating reason’ in deciding whether there was unlawful
discrimination, the Supreme Court reached a contrary conclusion in Harris
[supra]. The court specifically concluded that ‘[r]equiring the plaintiff to show
that discrimination was a substantial motivating factor, rather than simply a
motivating factor, more effectively ensures that liability will not be imposed
based on evidence of mere thoughts or passing statements unrelated to the
disputed employment decision.’ ” (Alamo v. Practice Management Information
Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:485–7:508 (The Rutter
Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.61–2.65, 2.87
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.11[1] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[2] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:20–2:21, 2:75 (Thomson
Reuters)
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2508. Failure to File Timely Administrative Complaint (Gov. Code,
§ 12960(e))—Plaintiff Alleges Continuing Violation
[Name of defendant] contends that [name of plaintiff]’s lawsuit may not
proceed because [name of plaintiff] did not timely file a complaint with
the Department of Fair Employment and Housing (DFEH). A complaint
is timely if it was filed within three years of the date on which [name of
defendant]’s alleged unlawful practice occurred.
[Name of plaintiff] filed a complaint with the DFEH on [date]. [Name of
plaintiff] may recover for acts of alleged [specify the unlawful practice, e.g.,
harassment] that occurred before [insert date three years before the DFEH
complaint was filed], only if [he/she/nonbinary pronoun] proves all of the
following:
1. That [name of defendant]’s [e.g., harassment] that occurred before
[insert date three years before the DFEH complaint was filed] was
similar or related to the conduct that occurred on or after that
date;
2. That the conduct was reasonably frequent; and
3. That the conduct had not yet become permanent before that date.
“Permanent” in this context means that the conduct has stopped, [name
of plaintiff] has resigned, or [name of defendant]’s statements and actions
would make it clear to a reasonable employee that any further efforts to
resolve the issue internally would be futile.
New June 2010; Revised December 2011, June 2015, May 2019, May 2020
Directions for Use
Give this instruction if the plaintiff relies on the continuing-violation doctrine in
order to avoid the bar of the limitation period of three years within which to file an
administrative complaint. (See Gov. Code, § 12960(e).) Although the continuing-
violation doctrine is labeled an equitable exception, it may involve triable issues of
fact. (See Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714,
723–724 [85 Cal.Rptr.3d 705].)
If the case involves multiple claims of FEHA violations, replace “lawsuit” in the
opening sentence with reference to the particular claim or claims to which the
continuing-violation rule may apply.
In the second paragraph, insert the date on which the administrative complaint was
filed and the dates on which both sides allege that the complaint requirement was
triggered. The verdict form should ask the jury to specify the date that it finds that
the requirement accrued. If there are multiple claims with different continuing-
violation dates, repeat this paragraph for each claim.
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The plaintiff has the burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with the DFEH. (Kim v. Konad USA
Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 [172 Cal.Rptr.3d 686].) This
burden of proof extends to any excuse or justification for the failure to timely file,
such as the continuing-violation exception. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1402 [194 Cal.Rptr.3d 689].)
Sources and Authority
• Administrative Complaint for FEHA Violation. Government Code section 12960.
• “At a jury trial, the facts are presented and the jury must decide whether there
was a continuing course of unlawful conduct based on the law as stated in CACI
No. 2508.” (Jumaane, supra, 241 Cal.App.4th at p. 1401.)
• “Under the FEHA, the employee must exhaust the administrative remedy
provided by the statute by filing a complaint with the Department of Fair
Employment and Housing (Department) and must obtain from the Department a
notice of right to sue in order to be entitled to file a civil action in court based
on violations of the FEHA. The timely filing of an administrative complaint is a
prerequisite to the bringing of a civil action for damages under the FEHA. As
for the applicable limitation period, the FEHA provides that no complaint for
any violation of its provisions may be filed with the Department ‘after the
expiration of one year from the date upon which the alleged unlawful practice or
refusal to cooperate occurred,’ with an exception for delayed discovery not
relevant here.” (Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 63 [105 Cal.Rptr.2d 652], original italics, internal citations
omitted.)
• “[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with [DFEH] and obtaining a
right-to-sue letter.’ ” (Kim, supra, 226 Cal.App.4th at p. 1345.)
• “[W]hen defendant has asserted the statute of limitation defense, the plaintiff has
the burden of proof to show his or her claims are timely under the continuing
violation doctrine.” (Jumaane, supra, 241 Cal.App.4th at p. 1402.)
• “Under the continuing violation doctrine, a plaintiff may recover for unlawful
acts occurring outside the limitations period if they continued into that period.
The continuing violation doctrine requires proof that (1) the defendant’s actions
inside and outside the limitations period are sufficiently similar in kind; (2) those
actions occurred with sufficient frequency; and (3) those actions have not
acquired a degree of permanence.” (Wassmann v. South Orange County
Community College Dist. (2018) 24 Cal.App.5th 825, 850–851 [234 Cal.Rptr.3d
712], internal citations omitted.)
• “ ‘[P]ermanence’ in the context of an ongoing process of accommodation of
disability, or ongoing disability harassment, should properly be understood to
mean the following: that an employer’s statements and actions make clear to a
reasonable employee that any further efforts at informal conciliation to obtain
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reasonable accommodation or end harassment will be futile. [¶] Thus, when an
employer engages in a continuing course of unlawful conduct under the FEHA
by refusing reasonable accommodation of a disabled employee or engaging in
disability harassment, and this course of conduct does not constitute a
constructive discharge, the statute of limitations begins to run, not necessarily
when the employee first believes that his or her rights may have been violated,
but rather, either when the course of conduct is brought to an end, as by the
employer’s cessation of such conduct or by the employee’s resignation, or when
the employee is on notice that further efforts to end the unlawful conduct will be
in vain. Accordingly, an employer who is confronted with an employee seeking
accommodation of disability or relief from disability harassment may assert
control over its legal relationship with the employee either by accommodating
the employee’s requests, or by making clear to the employee in a definitive
manner that it will not be granting any such requests, thereby commencing the
running of the statute of limitations.” (Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 823–824 [111 Cal.Rptr.2d 87, 29 P.3d 175], internal citations
omitted.)
• “[T]he Richards court interpreted section 12960 to mean that when a continuing
pattern of wrongful conduct occurs partly in the statutory period and partly
outside the statutory period, the limitations period begins to accrue once an
employee is on notice of the violation of his or her rights and on notice that
‘litigation, not informal conciliation, is the only alternative for the vindication of
his or her rights.’ ” (Acuna v. San Diego Gas & Electric Co. (2013) 217
Cal.App.4th 1402, 1412 [159 Cal.Rptr.3d 749].)
• “A continuing violation may be established by demonstrating ‘a company wide
policy or practice’ or ‘a series of related acts against a single individual.’ ‘The
continuing violation theory generally has been applied in the context of a
continuing policy and practice of discrimination on a company-wide basis; a
plaintiff who shows that a policy and practice operated at least in part within the
limitation period satisfies the filing requirements. “[A] systematic policy of
discrimination is actionable even if some or all of the events evidencing its
inception occurred prior to the limitations period. The reason is that the
continuing system of discrimination operates against the employee and violates
his or her rights up to a point in time that falls within the applicable limitations
period. Such continuing violations are most likely to occur in the matter of
placements or promotions.” ’ The plaintiff must demonstrate that at least one act
occurred within the filing period and that ‘the harassment is “more than the
occurrence of isolated or sporadic acts of intentional discrimination.” . . . The
relevant distinction is between the occurrence of isolated, intermittent acts of
discrimination and a persistent, on-going pattern.’ ” (Morgan, supra, 88
Cal.App.4th at p. 64, internal citations omitted.)
• “[A] continuing violation claim will likely fail if the plaintiff knew, or through
the exercise of reasonable diligence would have known, [the plaintiff] was being
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discriminated against at the time the earlier events occurred.” (Morgan, supra,
88 Cal.App.4th at p. 65.)
• “The Supreme Court has extended the continuing violation doctrine to retaliation
claims. And the doctrine also applies to racial harassment claims. Indeed, as we
observed in Morgan v. Regents of University of California, supra, 88
Cal.App.4th 52, 65: ‘Cases alleging a hostile work environment due to racial or
sexual harassment are often found to come within the continuing violations
framework.’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 270
[100 Cal.Rptr.3d 296], internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1065
4 Witkin, California Procedure (5th ed. 2008) Actions, § 564
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:561.1, 7:975 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-A, Failure To
Exhaust Administrative Remedies, ¶ 16:85 (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.51[1] (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.59 (Matthew Bender)
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2509. “Adverse Employment Action” Explained
[Name of plaintiff] must prove that [he/she/nonbinary pronoun] was
subjected to an adverse employment action.
Adverse employment actions are not limited to ultimate actions such as
termination or demotion. There is an adverse employment action if
[name of defendant] has taken an action or engaged in a course or
pattern of conduct that, taken as a whole, materially and adversely
affected the terms, conditions, or privileges of [name of plaintiff]’s
employment. An adverse employment action includes conduct that is
reasonably likely to impair a reasonable employee’s job performance or
prospects for advancement or promotion. However, minor or trivial
actions or conduct that is not reasonably likely to do more than anger or
upset an employee cannot constitute an adverse employment action.
New June 2012
Directions for Use
Give this instruction with CACI No. 2500, Disparate Treatment—Essential Factual
Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability
Discrimination—Disparate Treatment—Essential Factual Elements, CACI No. 2560,
Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential
Factual Elements, if there is an issue as to whether the employee was the victim of
an adverse employment action.
For example, the case may involve a pattern of employer harassment consisting of
acts that might not individually be sufficient to constitute discrimination or
retaliation, but taken as a whole establish prohibited conduct. (See Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116
P.3d 1123].) Or the case may involve acts that, considered alone, would not appear
to be adverse, but could be adverse under the particular circumstances of the case.
(See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378,
1389–1390 [37 Cal.Rptr.3d 113] [lateral transfer can be adverse employment action
even if wages, benefits, and duties remain the same].)
Sources and Authority
• “Appropriately viewed, [section 12940(a)] protects an employee against unlawful
discrimination with respect not only to so-called ultimate employment actions
such as termination or demotion, but also the entire spectrum of employment
actions that are reasonably likely to adversely and materially affect an
employee’s job performance or opportunity for advancement in his or her career.
Although a mere offensive utterance or even a pattern of social slights by either
the employer or coemployees cannot properly be viewed as materially affecting
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the terms, conditions, or privileges of employment for purposes of section
12940(a) (or give rise to a claim under section 12940(h)), the phrase ‘terms,
conditions, or privileges’ of employment must be interpreted liberally and with a
reasonable appreciation of the realities of the workplace in order to afford
employees the appropriate and generous protection against employment
discrimination that the FEHA was intended to provide.” (Yanowitz, supra, 36
Cal.4th at pp. 1053–1054, footnotes omitted.)
• “[T]he determination of what type of adverse treatment properly should be
considered discrimination in the terms, conditions, or privileges of employment
is not, by its nature, susceptible to a mathematically precise test, and the
significance of particular types of adverse actions must be evaluated by taking
into account the legitimate interests of both the employer and the employee.
Minor or relatively trivial adverse actions or conduct by employers or fellow
employees that, from an objective perspective, are reasonably likely to do no
more than anger or upset an employee cannot properly be viewed as materially
affecting the terms, conditions, or privileges of employment and are not
actionable, but adverse treatment that is reasonably likely to impair a reasonable
employee’s job performance or prospects for advancement or promotion falls
within the reach of the antidiscrimination provisions of sections 12940(a) and
12940(h).” (Yanowitz, supra, 36 Cal.4th at pp. 1054–1055.)
• “An ‘ “adverse employment action,” ’ . . . , requires a ‘substantial adverse
change in the terms and conditions of the plaintiff’s employment’. ” (Holmes v.
Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119
Cal.Rptr.3d 878, internal citations omitted.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively
the alleged retaliatory acts, there is no requirement that an employer’s retaliatory
acts constitute one swift blow, rather than a series of subtle, yet damaging,
injuries. Enforcing a requirement that each act separately constitute an adverse
employment action would subvert the purpose and intent of the statute.”
(Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations omitted.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the
conditions of employment. The refusal to promote [plaintiff] is an adverse
employment action under FEHA. There was also a pattern of conduct, the
totality of which constitutes an adverse employment action. This includes
undeserved negative job reviews, reductions in his staff, ignoring his health
concerns and acts which caused him substantial psychological harm.” (Wysinger
v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [69
Cal.Rptr.3d 1], internal citations omitted.)
• “The employment action must be both detrimental and substantial . . . [¶]. We
must analyze [plaintiff’s] complaints of adverse employment actions to determine
if they result in a material change in the terms of her employment, impair her
employment in some cognizable manner, or show some other employment injury
. . . . [W]e do not find that [plaintiff’s] complaint alleges the necessary material
changes in the terms of her employment to cause employment injury. Most of
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the actions upon which she relies were one time events . . . . The other
allegations . . . are not accompanied by facts which evidence both a substantial
and detrimental effect on her employment.” (Thomas v. Department of
Corrections (2000) 77 Cal.App.4th 507, 511–512 [91 Cal.Rptr.2d 770], internal
citations omitted.)
• “The ‘materiality’ test of adverse employment action . . . looks to ‘the entire
spectrum of employment actions that are reasonably likely to adversely and
materially affect an employee’s job performance or opportunity for advancement
in his or her career,’ and the test ‘must be interpreted liberally . . . with a
reasonable appreciation of the realities of the workplace . . . .’ ” (Patten, supra,
134 Cal.App.4th at p. 1389.)
• “Retaliation claims are inherently fact-specific, and the impact of an employer’s
action in a particular case must be evaluated in context. Accordingly, although
an adverse employment action must materially affect the terms, conditions, or
privileges of employment to be actionable, the determination of whether a
particular action or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the affected employee as
well as the workplace context of the claim.” (Whitehall v. County of San
Bernardino (2017) 17 Cal.App.5th 352, 366–367 [225 Cal.Rptr.3d 321].)
• “[A] mere oral or written criticism of an employee . . . does not meet the
definition of an adverse employment action under [the] FEHA.” (Light v.
Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 92 [221
Cal.Rptr.3d 668].)
• “Mere ostracism in the workplace is insufficient to establish an adverse
employment decision. However, ‘ “[W]orkplace harassment, if sufficiently severe
or pervasive, may in and of itself constitute an adverse employment action
sufficient to satisfy the second prong of the prima facie case for . . . retaliation
cases.” [Citation].’ ” (Kelley v. The Conco Companies (2011) 196 Cal.App.4th
191, 212 [126 Cal.Rptr.3d 651], internal citations omitted.)
• “Not every change in the conditions of employment, however, constitutes an
adverse employment action. ‘ “A change that is merely contrary to the
employee’s interests or not to the employee’s liking is insufficient.” . . .’
‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is
displeased by an employer’s act or omission does not elevate that act or
omission to the level of a materially adverse employment action.’ ” (Malais v.
Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 [58 Cal.Rptr.3d
444].)
• “[R]efusing to allow a former employee to rescind a voluntary discharge—that
is, a resignation free of employer coercion or misconduct—is not an adverse
employment action.” (Featherstone v. Southern California Permanente Medical
Group (2017) 10 Cal.App.5th 1150, 1161 [217 Cal.Rptr.3d 258].)
• “[T]he reduction of [plaintiff]’s hours alone could constitute a material and
adverse employment action by the [defendant].” (Light, supra, 14 Cal.App.5th at
p. 93.)
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• “[A] job reassignment may be an adverse employment action when it entails
materially adverse consequences.” (Simers v. Los Angeles Times
Communications, LLC (2018) 18 Cal.App.5th 1248, 1279 [227 Cal.Rptr.3d 695].)
• “[T]he denial of previously promised training and the failure to promote may
constitute adverse employment actions.” (Light, supra, 14 Cal.App.5th at p. 93.)
• “The trial court correctly found that the act of placing plaintiff on administrative
leave [involuntarily] was an adverse employment action.” (Whitehall, supra, 17
Cal.App.5th at p. 367.)
• “[Plaintiff] has presented no authority, and we are aware of none, holding that a
single threat of an adverse employment action, never carried out, could itself
constitute an adverse employment action under the standard articulated in
Yanowitz and its progeny.” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855,
879 [235 Cal.Rptr.3d 161].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1052–1055
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:203, 7:731, 7:785 (The
Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.12 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)
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2510. “Constructive Discharge” Explained
[Name of plaintiff] must prove that [he/she/nonbinary pronoun] was
constructively discharged. To establish constructive discharge, [name of
plaintiff] must prove the following:
1. That [name of defendant] [through [name of defendant]’s officers,
directors, managing agents, or supervisory employees]
intentionally created or knowingly permitted working conditions
to exist that were so intolerable that a reasonable person in [name
of plaintiff]’s position would have had no reasonable alternative
except to resign; and
2. That [name of plaintiff] resigned because of these working
conditions.
In order to be sufficiently intolerable, adverse working conditions must
be unusually aggravated or amount to a continuous pattern. In general,
single, trivial, or isolated acts of misconduct are insufficient to support a
constructive discharge claim. But in some circumstances, a single
intolerable incident may constitute a constructive discharge.
New June 2012; Revised May 2019, May 2020
Directions for Use
Give this instruction with CACI No. 2401, Breach of Employment
Contract—Unspecified Term—Actual or Constructive Discharge—Essential Factual
Elements, CACI No. 2500, Disparate Treatment—Essential Factual Elements, CACI
No. 2505, Retaliation, CACI No. 2540, Disability Discrimination—Disparate
Treatment—Essential Factual Elements, CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements, or CACI
No. 2570, Age Discrimination—Disparate Treatment—Essential Factual Elements, if
the employee alleges that because of the employer’s actions, the employee had no
reasonable alternative other than to leave the employment. Constructive discharge
can constitute the adverse employment action required to establish a FEHA violation
for discrimination or retaliation. (See Steele v. Youthful Offender Parole Bd. (2008)
162 Cal.App.4th 1241, 1253 [76 Cal.Rptr.3d 632].)
Sources and Authority
• “[C]onstructive discharge occurs only when an employer terminates employment
by forcing the employee to resign. A constructive discharge is equivalent to a
dismissal, although it is accomplished indirectly. Constructive discharge occurs
only when the employer coerces the employee’s resignation, either by creating
working conditions that are intolerable under an objective standard, or by failing
to remedy objectively intolerable working conditions that actually are known to
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the employer. We have said ‘a constructive discharge is legally regarded as a
firing rather than a resignation.’ ” (Mullins v. Rockwell Internat. Corp. (1997) 15
Cal.4th 731, 737 [63 Cal.Rptr.2d 636, 936 P.2d 1246], internal citations omitted.)
• “Actual discharge carries significant legal consequences for employers, including
possible liability for wrongful discharge. In an attempt to avoid liability, an
employer may refrain from actually firing an employee, preferring instead to
engage in conduct causing him or her to quit. The doctrine of constructive
discharge addresses such employer-attempted ‘end runs’ around wrongful
discharge and other claims requiring employer-initiated terminations of
employment.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244 [32
Cal.Rptr.2d 223, 876 P.2d 1022].)
• “Standing alone, constructive discharge is neither a tort nor a breach of contract,
but a doctrine that transforms what is ostensibly a resignation into a firing.”
(Turner, supra, 7 Cal.4th at p. 1251.)
• “In order to amount to constructive discharge, adverse working conditions must
be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the
situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts
of [misconduct] are insufficient’ to support a constructive discharge claim.
Moreover, a poor performance rating or a demotion, even when accompanied by
reduction in pay, does not by itself trigger a constructive discharge.” (Turner,
supra, 7 Cal.4th at p. 1247, internal citation and footnotes omitted.)
• “In some circumstances, a single intolerable incident, such as a crime of
violence against an employee by an employer, or an employer’s ultimatum that
an employee commit a crime, may constitute a constructive discharge. Such
misconduct potentially could be found ‘aggravated.’ ” (Turner, supra, 7 Cal.4th
at p. 1247, fn. 3.)
• “Although situations may exist where the employee’s decision to resign is
unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to
justify a reasonable employee’s decision to resign is normally a question of fact.
[Citation.]’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 827 [166 Cal.Rptr.3d 242].)
• “[T]he standard by which a constructive discharge is determined is an objective
one—the question is ‘whether a reasonable person faced with the allegedly
intolerable employer actions or conditions of employment would have no
reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248,
internal citations omitted.)
• “[U]nder Turner, the proper focus is on the working conditions themselves, not
on the plaintiff’s subjective reaction to those conditions.” (Simers v. Los Angeles
Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1272 [227 Cal.Rptr.3d
695], original italics.)
• “The length of time the plaintiff remained on the job may be one relevant factor
in determining the intolerability of employment conditions from the standpoint
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of a reasonable person.” (Turner, supra, 7 Cal.4th at p. 1254, original italics.)
• “[T]here was, as the trial court found, substantial evidence that plaintiff’s age
and disability were ‘substantial motivating reason[s]’ for the adverse employment
action or actions to which plaintiff was subjected. But the discriminatory motive
for plaintiff’s working conditions has no bearing on whether the evidence was
sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at
p. 1271.)
• “In order to establish a constructive discharge, an employee must plead and
prove, by the usual preponderance of the evidence standard, that the employer
either intentionally created or knowingly permitted working conditions that were
so intolerable or aggravated at the time of the employee’s resignation that a
reasonable employer would realize that a reasonable person in the employee’s
position would be compelled to resign. [¶] For purposes of this standard, the
requisite knowledge or intent must exist on the part of either the employer or
those persons who effectively represent the employer, i.e., its officers, directors,
managing agents, or supervisory employees.” (Turner, supra, 7 Cal.4th at p.
1251.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 238
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G, Constructive
Discharge, ¶ 4:405 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.34 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.31 et seq. (Matthew Bender)
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2511. Adverse Action Made by Decision Maker Without Animus
(Cat’s Paw)
In this case, the decision to [discharge/[other adverse employment action]]
[name of plaintiff] was made by [name of decision maker]. Even if [name of
decision maker] did not hold any [discriminatory/retaliatory] intent [or
was unaware of [name of plaintiff]’s conduct on which the claim of
retaliation is based], [name of defendant] may still be liable for
[discrimination/retaliation] if [name of decision maker] followed a
recommendation from or relied on facts provided by another person who
had [discriminatory/retaliatory] intent.
To succeed, [name of plaintiff] must prove both of the following:
1. That [name of plaintiff]’s [specify protected activity or attribute] was
a substantial motivating reason for [name of other person]’s
[specify acts on which decision maker relied]; and
2. That [name of other person]’s [specify acts on which decision maker
relied] was a substantial motivating reason for [name of decision
maker]’s decision to [discharge/[other adverse employment action]]
[name of plaintiff].
New December 2012; Revised June 2013, May 2020, November 2020
Directions for Use
Give this instruction if the “cat’s paw” rule is a factor in the case. Under the cat’s
paw rule, the person who actually took the adverse employment action against the
employee was not acting out of any improper animus. The decision maker, however,
acted on information provided by another person who was acting out of
discriminatory or retaliatory animus with the objective of causing the adverse
employment action. The decision maker is referred to as the “cat’s paw” of the
person with the animus. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th
95, 100 [16 Cal.Rptr.3d 717]; McGrory v. Applied Signal Technology, Inc. (2013)
212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154] [accepting the legal premise that
an employer may be held liable on the basis of a non-supervisor’s discriminatory
motivation].) The cases have not yet defined the scope of the cat’s paw rule when
the decision maker relies on the acts of a nonsupervisory coworker or other person
involved in the employment decision.
The purpose of this instruction is to make it clear to the jury that they are not to
evaluate the motives or knowledge of the decision maker, but rather to decide
whether the acts of another person with animus actually caused the adverse action.
Give the optional language in the second sentence of the first paragraph in a
retaliation case in which the decision maker was not aware of the plaintiff’s conduct
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that allegedly led to the retaliation (defense of ignorance). (See Reeves, supra, 121
Cal.App.4th at pp. 106–108.)
Element 1 requires that the protected activity or attribute be a substantial motivating
reason for the retaliatory acts. Element 2 requires that the other person’s improper
motive be a substantial motivating reason for the decision maker’s action. (See
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392,
294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason”
Explained.)
In both elements 1 and 2, all of the other person’s specific acts need not be listed in
all cases. Depending on the facts, doing so may be too cumbersome and impractical.
If the specific acts are listed, the list should include all acts on which plaintiff
claims the decision maker relied, not just the acts admitted to have been relied on
by the decision maker.
Sources and Authority
• “This case presents the question whether an employer may be liable for
retaliatory discharge when the supervisor who initiates disciplinary proceedings
acts with retaliatory animus, but the cause for discipline is separately
investigated and the ultimate decision to discharge the plaintiff is made by a
manager with no knowledge that the worker has engaged in protected activities.
We hold that so long as the supervisor’s retaliatory motive was an actuating . . .
cause of the dismissal, the employer may be liable for retaliatory discharge. Here
the evidence raised triable issues as to the existence and effect of retaliatory
motive on the part of the supervisor, and as to whether the manager and the
intermediate investigator acted as tools or ‘cat’s paws’ for the supervisor, that is,
instrumentalities by which his retaliatory animus was carried into effect to
plaintiff’s injury.” (Reeves, supra, 121 Cal.App.4th at p. 100.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a ‘but
for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “This concept—which for convenience we will call the ‘defense of
ignorance’—poses few analytical challenges so long as the ‘employer’ is
conceived as a single entity receiving and responding to stimuli as a unitary,
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indivisible organism. But this is often an inaccurate picture in a world where a
majority of workers are employed by large economic enterprises with layered
and compartmentalized management structures. In such enterprises, decisions
significantly affecting personnel are rarely if ever the responsibility of a single
actor. As a result, unexamined assertions about the knowledge, ignorance, or
motives of ‘the employer’ may be fraught with ambiguities, untested
assumptions, and begged questions.” (Reeves, supra, 121 Cal.App.4th at p. 108.)
• “[S]howing that a significant participant in an employment decision exhibited
discriminatory animus is enough to raise an inference that the employment
decision itself was discriminatory, even absent evidence that others in the
process harbored such animus.” (DeJung v. Superior Court (2008) 169
Cal.App.4th 533, 551 [87 Cal.Rptr.3d 99]).
• “[W]e accept Employee’s implicit legal premise that Employer could be liable
for [the outside investigator’s] discriminatory motivation if the male executives
who actually terminated Employee were merely the cat’s paws of a biased
female investigator.” (McGrory v. Applied Signal Technology, Inc. (2013) 212
Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154].)
• “Certainly a defendant does not conclusively negate the element of causation by
showing only that some responsible actors, but not all, were ignorant of the
occasion for retaliation.” (Reeves, supra, 121 Cal.App.4th at p. 108.)
• “Here a rational fact finder could conclude that an incident of minor and
excusable disregard for a supervisor’s stated preferences was amplified into a
‘solid case’ of ‘workplace violence,’ and that this metamorphosis was brought
about in necessary part by a supervisor’s desire to rid himself of a worker who
created trouble by complaining of matters the supervisor preferred to ignore.
Since those complaints were protected activities under FEHA, a finder of fact
must be permitted to decide whether these inferences should in fact be drawn.”
(Reeves, supra, 121 Cal.App.4th at p. 121.)
• “Our emphasis on the conduct of supervisors is not inadvertent. An employer
can generally be held liable for the discriminatory or retaliatory actions of
supervisors. The outcome is less clear where the only actor possessing the
requisite animus is a nonsupervisory coworker.” (Reeves, supra, 121 Cal.App.4th
at p. 109 fn. 9, original italics, internal citation omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025,
1026, 1052, 1053
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶ 7:806.5 (The Rutter
Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.131 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][a] (Matthew Bender)
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2512. Limitation on Remedies—Same Decision
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was
[discharged/[other adverse employment action]] because of
[his/her/nonbinary pronoun] [protected status or action, e.g., race, gender, or
age], which is an unlawful [discriminatory/retaliatory] reason. [Name of
defendant] claims that [name of plaintiff] [was discharged/[other adverse
employment action]] because of [specify reason, e.g., plaintiff’s poor job
performance], which is a lawful reason.
If you find that [discrimination/retaliation] was a substantial motivating
reason for [name of plaintiff]’s [discharge/[other adverse employment
action]], you must then consider [name of defendant]’s stated reason for
the [discharge/[other adverse employment action]].
If you find that [e.g., plaintiff’s poor job performance] was also a
substantial motivating reason, then you must determine whether the
defendant has proven that [he/she/nonbinary pronoun/it] would have
[discharged/[other adverse employment action]] [name of plaintiff] anyway
at that time based on [e.g., plaintiff’s poor job performance] even if [he/
she/nonbinary pronoun/it] had not also been substantially motivated by
[discrimination/retaliation].
In determining whether [e.g., plaintiff’s poor job performance] was a
substantial motivating reason, determine what actually motivated [name
of defendant], not what [he/she/nonbinary pronoun/it] might have been
justified in doing.
If you find that [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff] for a [discriminatory/retaliatory] reason, you
will be asked to determine the amount of damages that [he/she/nonbinary
pronoun] is entitled to recover. If, however, you find that [name of
defendant] would have [discharged/[other adverse employment action]]
[name of plaintiff] anyway at that time for [specify defendant’s
nondiscriminatory/nonretaliatory reason], then [name of plaintiff] will not be
entitled to reinstatement, back pay, or damages.
New December 2013; Revised June 2015, June 2016
Directions for Use
Give this instruction along with CACI No. 2507, “Substantial Motivating Reason”
Explained, if the employee has presented sufficient evidence for the jury to find that
the employer took adverse action against him or her for a prohibited reason, but the
employer has presented sufficient evidence for the jury to find that it had a
legitimate reason for the action. In such a “mixed-motive” case, the employer is
relieved from an award of damages, but may still be liable for attorney fees and
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costs and injunctive relief. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 211 [152 Cal.Rptr.3d 392, 294 P.3d 49].)
Mixed-motive must be distinguished from pretext though both require evaluation of
the same evidence, i.e., the employer’s purported legitimate reason for the adverse
action. In a pretext case, the only actual motive is the discriminatory one and the
purported legitimate reasons are fabricated in order to disguise the true motive. (See
City and County of San Francisco v. Fair Employment and Housing Com. (1987)
191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the burden of
proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the employee proves
discrimination or retaliation and also pretext, the employer is liable for all potential
remedies including damages. But if the employee proves discrimination or
retaliation but fails to prove pretext, then a mixed-motive case is presented. To
avoid an award of damages, the employer then has the burden of proving that it
would have made the same decision anyway solely for the legitimate reason, even
though it may have also discriminated or retaliated.
Sources and Authority
• “[U]nder the FEHA, when a jury finds that unlawful discrimination was a
substantial factor motivating a termination of employment, and when the
employer proves it would have made the same decision absent such
discrimination, a court may not award damages, backpay, or an order of
reinstatement. But the employer does not escape liability. In light of the FEHA’s
express purpose of not only redressing but also preventing and deterring
unlawful discrimination in the workplace, the plaintiff in this circumstance could
still be awarded, where appropriate, declaratory relief or injunctive relief to stop
discriminatory practices. In addition, the plaintiff may be eligible for reasonable
attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)
• “Because employment discrimination litigation does not resemble the kind of
cases in which we have applied the clear and convincing standard, we hold that
preponderance of the evidence is the standard of proof applicable to an
employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)
• “[W]hen we refer to a same-decision showing, we mean proof that the employer,
in the absence of any discrimination, would have made the same decision at the
time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original
italics.)
• “In light of today’s decision, a jury in a mixed-motive case alleging unlawful
termination should be instructed that it must find the employer’s action was
substantially motivated by discrimination before the burden shifts to the
employer to make a same-decision showing, and that a same-decision showing
precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56
Cal.4th at p. 241.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
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even by itself determinative of an employment decision without also being a ‘but
for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “[A] plaintiff has the initial burden to make a prima facie case of discrimination
by showing that it is more likely than not that the employer has taken an adverse
employment action based on a prohibited criterion. A prima facie case
establishes a presumption of discrimination. The employer may rebut the
presumption by producing evidence that its action was taken for a legitimate,
nondiscriminatory reason. If the employer discharges this burden, the
presumption of discrimination disappears. The plaintiff must then show that the
employer’s proffered nondiscriminatory reason was actually a pretext for
discrimination, and the plaintiff may offer any other evidence of discriminatory
motive. The ultimate burden of persuasion on the issue of discrimination remains
with the plaintiff.” (Harris, supra, 56 Cal.4th at pp. 214–215.)
• “In some cases there is no single reason for an employer’s adverse action, and a
discriminatory motive may have influenced otherwise legitimate reasons for the
employment decision. In Harris v. City of Santa Monica (Harris) the California
Supreme Court recognized the traditional McDonnell Douglas burden-shifting
test was intended for use in cases presenting a single motive for the adverse
action, that is, in ‘cases that do not involve mixed motives.’ As the Court
explained, this ‘framework . . . presupposes that the employer has a single
reason for taking an adverse action against the employee and that the reason is
either discriminatory or legitimate. By hinging liability on whether the
employer’s proffered reason for taking the action is genuine or pretextual, the
McDonnell Douglas inquiry aims to ferret out the “true” reason for the
employer’s action. In a mixed-motives case, however, there is no single “true”
reason for the employer’s action.’ ” (Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1182 [220 Cal.Rptr.3d 42], internal citations
omitted.)
• “Following the California Supreme Court’s decision in Harris, . . . the Judicial
Council added CACI No. 2512, to be given when the employer presents
evidence of a legitimate reason for the adverse employment action, informing the
jurors that even if they find that discrimination was a substantial motivating
reason for the adverse action, if the employer establishes that the adverse action
nonetheless would have been taken for legitimate reasons, ‘then [the plaintiff]
will not be entitled to reinstatement, back pay, or damages.’ ” (Davis v. Farmers
Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr.3d 315].)
• “ ‘[Plaintiff] further argues that for equitable reasons, an employer that wishes to
make a same-decision showing must concede that it had mixed motives for
taking the adverse employment action instead of denying a discriminatory
motive altogether. But there is no inconsistency when an employer argues that its
motive for discharging an employee was legitimate, while also arguing,
contingently, that if the trier of fact finds a mixture of lawful and unlawful
motives, then its lawful motive alone would have led to the discharge.’ ”
(Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th
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169, 199 [167 Cal.Rptr.3d 24] [quoting Harris, supra, 56 Cal.App.4th at p.
240].)
• “As a preliminary matter, we reject [defendant]’s claim that the jury could have
found no liability on the part of [defendant] had it been properly instructed on
the mixed-motive defense at trial. As discussed, the Supreme Court in Harris
held that the mixed-motive defense is available under the FEHA, but only as a
limitation on remedies and not as a complete defense to liability. Consequently,
when the plaintiff proves by a preponderance of the evidence that discrimination
was a substantial motivating factor in the adverse employment decision, the
employer is liable under the FEHA. When the employer proves by a
preponderance of the evidence that it would have made the same decision even
in the absence of such discrimination, the employer is still liable under the
FEHA, but the plaintiff’s remedies are then limited to declaratory or injunctive
relief, and where appropriate, attorney’s fees and costs. As presently drafted,
BAJI No. 12.26 does not accurately set forth the parameters of the defense as
articulated by the Supreme Court, but rather states that, in a mixed-motive case,
‘the employer is not liable if it can establish by a preponderance of the evidence
that its legitimate reason, standing alone, would have induced it to make the
same decision.’ By providing that the mixed-motive defense, if proven, is a
complete defense to liability, [defendant]’s requested instruction directly conflicts
with the holding in Harris. (Alamo v. Practice Management Information Corp.
(2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr.3d 758], internal citations
omitted.)
• “Pretext may . . . be inferred from the timing of the company’s termination
decision, by the identity of the person making the decision, and by the
terminated employee’s job performance before termination.” (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr.3d 296].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1037,
1067
7 Witkin, California Procedure (5th ed. 2008), Judgment § 217
3 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.11 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23 (Matthew Bender)
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2513. Business Judgment
In California, employment is presumed to be “at will.” That means that
an employer may [discharge/[other adverse action]] an employee for no
reason, or for a good, bad, mistaken, unwise, or even unfair reason, as
long as its action is not for a [discriminatory/retaliatory] reason.
New December 2013
Directions for Use
Give this instruction to advise the jury that the employer’s adverse action is not
illegal just because it is ill-advised. It has been held to be error not to give this
instruction. (See Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 20–24 [151
Cal.Rptr.3d 41].)
Sources and Authority
• At-Will Employment. Labor Code section 2922.
• “[A] plaintiff in a discrimination case must show discrimination, not just that the
employer’s decision was wrong, mistaken, or unwise. . . . ‘ “The employer may
fire an employee for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory
reason. . . . ‘While an employer’s judgment or course of action may seem poor
or erroneous to outsiders, the relevant question is . . . whether the given reason
was a pretext for illegal discrimination. The employer’s stated legitimate reason
. . . does not have to be a reason that the judge or jurors would act on or
approve.’ ” ’ ” (Veronese, supra, 212 Cal.App.4th at p. 21, internal citation
omitted.)
• “[I]f nondiscriminatory, [defendant]’s true reasons need not necessarily have
been wise or correct. While the objective soundness of an employer’s proffered
reasons supports their credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons
in this context are reasons that are facially unrelated to prohibited bias, and
which, if true, would thus preclude a finding of discrimination.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 358 [100 Cal.Rptr.2d 352, 8 P.3d 1089],
original italics, internal citations omitted.)
• “[U]nder the law [defendant] was entitled to exercise her business judgment,
without second guessing. But [the court] refused to tell the jury that. That was
error.” (Veronese, supra, 212 Cal.App.4th at p. 24.)
• “An employment decision based on political concerns, even if otherwise unfair,
is not actionable under section 12940 so long as the employee’s race or other
protected status is not a substantial factor in the decision.” (Diego v. City of Los
Angeles (2017) 15 Cal.App.5th 338, 355 [223 Cal.Rptr.3d 173].)
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• “What constitutes satisfactory performance is of course a question ordinarily
vested in the employer’s sole discretion. An employer is free to set standards
that might appear unreasonable to outside observers, and to discipline employees
who fail to meet those standards, so long as the standards are applied
evenhandedly. But that does not mean that an employer conclusively establishes
the governing standard of competence in an employment discrimination action
merely by asserting that the plaintiff’s performance was less than satisfactory.
Evidence of the employer’s policies and practices, including its treatment of
other employees, may support a contention, and an eventual finding, that the
plaintiff’s job performance did in fact satisfy the employer’s own norms.” (Cheal
v. El Camino Hospital (2014) 223 Cal.App.4th 736, 742–743 [167 Cal.Rptr.3d
485].)
• “The central issue is and should remain whether the evidence as a whole
supports a reasoned inference that the challenged action was the product of
discriminatory or retaliatory animus. The employer’s mere articulation of a
legitimate reason for the action cannot answer this question; it can only dispel
the presumption of improper motive that would otherwise entitle the employee to
a judgment in his favor.” (Cheal, supra, 223 Cal.App.4th at p. 755.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 244 et seq.
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1017–1021
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:194, 7:200–7:201,
7:356, 7:391–7:392, 7:530, 7:531, 7:535 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.01 et seq. (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.11 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.23 (Matthew Bender)
2514–2519. Reserved for Future Use
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2520. Quid pro quo Sexual Harassment—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] subjected
[him/her/nonbinary pronoun] to sexual harassment. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/was a person providing
services pursuant to a contract with [name of defendant]];
2. That [name of alleged harasser] made unwanted sexual advances
to [name of plaintiff] or engaged in other unwanted verbal or
physical conduct of a sexual nature;
3. That terms of employment, job benefits, or favorable working
conditions were made contingent, by words or conduct, on [name
of plaintiff]’s acceptance of [name of alleged harasser]’s sexual
advances or conduct;
4. That at the time of [his/her/nonbinary pronoun] conduct, [name of
alleged harasser] was a supervisor or agent for [name of
defendant];
5. That [name of plaintiff] was harmed; and
6. That [name of alleged harasser]’s conduct was a substantial factor
in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2015
Directions for Use
Employers may be liable for the conduct of certain agents. (See Gov. Code,
§§ 12925(d), 12926(d), 12940(j)(1); Reno v. Baird (1998) 18 Cal.4th 640, 648 [76
Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express
opinion whether “agent” language in the FEHA merely incorporates respondeat
superior principles or has some other meaning]).
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined: Harassment. Government Code section 12940(j)(4)(A).
• “Person Providing Services Under Contract: Harassment. Government Code
section 12940(j)(5).
• Sexual Harassment. Cal. Code Regs., tit. 2, § 11034(f)(1).
• “Courts have generally recognized two distinct categories of sexual harassment
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claims: quid pro quo and hostile work environment. Quid pro quo harassment
occurs when submission to sexual conduct is made a condition of concrete
employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)
• “A cause of action for quid pro quo harassment involves the behavior most
commonly regarded as sexual harassment, including, e.g., sexual propositions,
unwarranted graphic discussion of sexual acts, and commentary on the
employee’s body and the sexual uses to which it could be put. To state a cause
of action on this theory, it is sufficient to allege that a term of employment was
expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome
sexual advances.” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409,
1414 [26 Cal.Rptr.2d 116], internal citations omitted.)
• “Cases based on threats which are carried out are referred to often as quid pro
quo cases, as distinct from bothersome attentions or sexual remarks that are
sufficiently severe or pervasive to create a hostile work environment. The terms
quid pro quo and hostile work environment are helpful, perhaps, in making a
rough demarcation between cases in which threats are carried out and those
where they are not or are absent altogether, but beyond this are of limited utility
. . . [¶] We do not suggest the terms quid pro quo and hostile work environment
are irrelevant to Title VII litigation. To the extent they illustrate the distinction
between cases involving a threat which is carried out and offensive conduct in
general, the terms are relevant when there is a threshold question whether a
plaintiff can prove discrimination in violation of Title VII. When a plaintiff
proves that a tangible employment action resulted from a refusal to submit to a
supervisor’s sexual demands, he or she establishes that the employment decision
itself constitutes a change in the terms and conditions of employment that is
actionable under Title VII. For any sexual harassment preceding the employment
decision to be actionable, however, the conduct must be severe or pervasive.”
(Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751, 753–754 [118
S.Ct. 2257, 141 L.Ed.2d 633].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166,
7:168–7:169, 7:194 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of
Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:50 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 3.31–3.35
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
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Discrimination, § 115.36[5][b] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:55 (Thomson Reuters)
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2521A. Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to
harassment based on [his/her/nonbinary pronoun] [describe protected
status, e.g., race, gender, or age] at [name of defendant] and that this
harassment created a work environment that was hostile, intimidating,
offensive, oppressive, or abusive.
To establish this claim, [name of plaintiff] and that this harassment
created a work environment that was hostile, intimidating, offensive,
oppressive, or abusive.
1. That [name of plaintiff] was [an employee of/an applicant for a
position with/a person providing services under a contract with/
an unpaid intern with/a volunteer with] [name of defendant];
2. That [name of plaintiff] was subjected to harassing conduct
because [he/she/nonbinary pronoun] was [protected status, e.g., a
woman];
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances would have considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive;
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor engaged in the conduct;]
6. [or]
6. [That [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] knew or should have known of the conduct
and failed to take immediate and appropriate corrective action;]
7. That [name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [name of
plaintiff]’s harm.
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, May 2020, November 2021
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Directions for Use
This instruction is for use in a hostile work environment case when the defendant is
an employer or other entity covered by the FEHA. If the defendant is a labor
organization, employment agency, apprenticeship training program or any training
program leading to employment (rather than an employer), the instruction should be
modified as appropriate. (See Gov. Code, § 12940(j)(1).) The relevant provision
protects an employee, an applicant, an unpaid intern or volunteer, or a person
providing services under a contract. (See ibid.) If the alleged harassment did not
occur in the workplace, the instruction should be modified as appropriate. (See Doe
v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long
as the harassment occurs in a work-related context, the employer is liable”].)
For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see
CACI No. 2522A, Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Individual Defendant. For a case in which
the plaintiff is not the target of the harassment, see CACI No. 2521B, Work
Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Employer or Entity Defendant. For an instruction for use if the hostile
environment is due to sexual favoritism, see CACI No. 2521C, Work Environment
Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity
Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI
No. 2524, “Severe or Pervasive” Explained.
Modify element 2 if plaintiff was not actually a member of the protected class, but
alleges harassment because the plaintiff was perceived to be a member, or associated
with someone who was or was perceived to be a member, of the protected class.
(See Gov. Code, § 12926(o).)
In element 6, select the applicable basis of employer liability: (a) strict liability for a
supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct. For
a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor”
Defined. If there are both employer and individual supervisor defendants (see CACI
No. 2522A, Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Individual Defendant) and both are found
liable, they are both jointly and severally liable for any damages. Comparative fault
and Proposition 51 do not apply to the employer’s strict liability for supervisor
harassment. (State Dept. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026,
1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information
Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on
other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664
[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9
Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to
those who are without fault and only have vicarious liability by virtue of some
statutory fiat].)
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Sources and Authority
• Legislative Intent With Regard to Application of the Laws About Harassment.
Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “To establish a prima facie case of a hostile work environment, [the plaintiff]
must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was
subjected to unwelcome harassment; (3) the harassment was based on
[plaintiff’s] protected status; (4) the harassment unreasonably interfered with
[plaintiff’s] work performance by creating an intimidating, hostile, or offensive
work environment; and (5) defendants are liable for the harassment.” (Ortiz v.
Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “[A]n employer is strictly liable for all acts of sexual harassment by a
supervisor.” (State Dept. of Health Servs., supra, 31 Cal.4th at p. 1042.)
• “The applicable language of the FEHA does not suggest that an employer’s
liability for sexual harassment by a supervisor is constrained by principles of
agency law. Had the Legislature so intended, it would have used language in the
FEHA imposing the negligence standard of liability on acts of harassment by an
employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not
acting within the scope of an agency for the employer.’ By providing instead in
section 12940, subdivision (j)(1), that the negligence standard applies to acts of
harassment ‘by an employee other than an agent or supervisor’ (italics added),
the Legislature has indicated that all acts of harassment by a supervisor are to be
exempted from the negligence standard, whether or not the supervisor was then
acting as the employer’s agent, and that agency principles come into play only
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when the harasser is not a supervisor. (State Dept. of Health Services, supra, 31
Cal.4th at p. 1041, original italics.)
• “When the harasser is a nonsupervisory employee, employer liability turns on a
showing of negligence (that is, the employer knew or should have known of the
harassment and failed to take appropriate corrective action).” (Rehmani v.
Superior Court (2012) 204 Cal.App.4th 945, 952 [139 Cal.Rptr.3d 464].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it becomes
or reasonably should become aware of the conduct—for example, when the
victim or someone else informs the employer—there simply is no ‘unlawful
employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• Employers may be liable for the conduct of certain agents. (See Gov. Code,
§§ 12925(d), 12926(d), and 12940(j)(1) and Reno v. Baird (1998) 18 Cal.4th
640, 658 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court
declined to express opinion whether “agent” language in the FEHA merely
incorporates respondeat superior principles or has some other meaning].)
• “Here, [defendant] was jointly liable with its employees on a respondeat superior
or vicarious liability theory on every cause of action in which it was named as a
defendant.” (Bihun, supra, 13 Cal.App.4th at p. 1000.)
• “The McDonnell Douglas burden-shifting framework does not apply to
[plaintiff]’s harassment claim either. Since ‘there is no possible justification for
harassment in the workplace,’ an employer cannot offer a legitimate
nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis Club (2017) 18
Cal.App.5th 908, 927 [227 Cal.Rptr.3d 286].)
• “[A]lthough no California cases have directly addressed racial harassment in the
workplace, the California courts have applied the federal threshold standard to
claims of sexual harassment and held that FEHA is violated when the
harassment was ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment.’ ” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457,
464–465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)
• “When the workplace is permeated with discriminatory intimidation, ridicule and
insult that is ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,’ the law is
violated.” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409
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[27 Cal.Rptr.2d 457], internal citation omitted.)
• “[N]ot every utterance of a racial slur in the workplace violates the FEHA or
Title VII. As the United States Supreme Court has recognized in the context of
sexual harassment: ‘[N]ot all workplace conduct that may be described as
“harassment” affects a “term, condition, or privilege” of employment within the
meaning of Title VII. For sexual harassment to be actionable, it must be
sufficiently severe or pervasive “to alter the conditions of [the victim’s]
employment and create an abusive working environment.” ’ . . . ‘Conduct that is
not severe or pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find hostile or
abusive—is beyond Title VII’s purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the conduct has not actually
altered the conditions of the victim’s employment, and there is no Title VII
violation.’ . . . California courts have adopted the same standard in evaluating
claims under the FEHA.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21
Cal.4th 121, 129–130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations
omitted.)
• “To be actionable, ‘a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.’ That
means a plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail under the FEHA, if a reasonable person in the plaintiff’s
position, considering all the circumstances, would not share the same perception.
Likewise, a plaintiff who does not perceive the workplace as hostile or abusive
will not prevail, even if it objectively is so.” (Lyle v. Warner Brothers Television
Productions (2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2, 132 P.3d 211],
internal citations omitted.)
• “The stray remarks doctrine . . . allows a court to weigh and assess the remarks
in isolation, and to disregard the potentially damaging nature of discriminatory
remarks simply because they are made by ‘nondecisionmakers, or [made] by
decisionmakers unrelated to the decisional process.’ [Defendant] also argues that
ambiguous remarks are stray, irrelevant, prejudicial, and inadmissible. However,
‘the task of disambiguating ambiguous utterances is for trial, not for summary
judgment.’ Determining the weight of discriminatory or ambiguous remarks is a
role reserved for the jury.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540–541
[113 Cal.Rptr.3d 327, 235 P.3d 988], internal citations omitted.)
• “[I]n reviewing the trial court’s grant of [defendant]’s summary judgment
motion, the Court of Appeal properly considered evidence of alleged
discriminatory comments made by decision makers and coworkers along with all
other evidence in the record.” (Reid, supra, 50 Cal.4th at p. 545.)
• “[M]any employment cases present issues of intent, and motive, and hostile
working environment, issues not determinable on paper. Such cases, we caution,
are rarely appropriate for disposition on summary judgment, however liberalized
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it be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [100
Cal.Rptr.3d 296].)
• “In contending that the ‘subjectively offensive’ element was not proven, a
defendant ‘will assert that a plaintiff consented to the conduct through active
participation in it, or was not injured because the plaintiff did not subjectively
find it abusive.’ [¶] [Evidence Code] Section 1106 limits the evidence the
defendant may use to support this assertion. It provides that ‘[i]n any civil action
alleging conduct which constitutes sexual harassment, sexual assault, or sexual
battery, opinion evidence, reputation evidence, and evidence of specific instances
of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the
defendant in order to prove consent by the plaintiff or the absence of injury to
the plaintiff . . . .’ This general rule is, however, subject to the exception that it
‘does not apply to evidence of the plaintiff’s sexual conduct with the alleged
perpetrator.’ The term ‘sexual conduct’ within the meaning of section 1106 has
been broadly construed to include ‘all active or passive behavior (whether
statements or actions), that either directly or through reasonable inference
establishes a plaintiff’s willingness to engage in sexual activity,’ including ‘racy
banter, sexual horseplay, and statements concerning prior, proposed, or planned
sexual exploits.’ ” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 874 [235
Cal.Rptr.3d 161], internal citations omitted.)
• “[A]llegations of a racially hostile work-place must be assessed from the
perspective of a reasonable person belonging to the racial or ethnic group of the
plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
• “Under . . . FEHA, sexual harassment can occur between members of the same
gender as long as the plaintiff can establish the harassment amounted to
discrimination because of sex.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th
1519, 1525 [169 Cal.Rptr.3d 794], original italics.)
• “[T]here is no requirement that the motive behind the sexual harassment must be
sexual in nature. ‘[H]arassing conduct need not be motivated by sexual desire to
support an inference of discrimination on the basis of sex.’ Sexual harassment
occurs when, as is alleged in this case, sex is used as a weapon to create a
hostile work environment.” (Singleton v. United States Gypsum Co. (2006) 140
Cal.App.4th 1547, 1564 [45 Cal.Rptr.3d 597], original italics, internal citation
omitted.)
• “The plaintiff must show that the harassing conduct took place because of the
plaintiff’s sex, but need not show that the conduct was motivated by sexual
desire. For example, a female plaintiff can prevail by showing that the
harassment was because of the defendant’s bias against women; she need not
show that it was because of the defendant’s sexual interest in women. In every
case, however, the plaintiff must show a discriminatory intent or motivation
based on gender.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [129
Cal.Rptr.3d 384], internal citations omitted.)
• “[A] heterosexual male is subjected to harassment because of sex under the
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FEHA when attacks on his heterosexual identity are used as a tool of harassment
in the workplace, irrespective of whether the attacks are motivated by sexual
desire or interest.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th
1228, 1239–1240 [166 Cal.Rptr.3d 676].)
• “A recent legislative amendment modifies section 12940, subdivision (j)(4)(C) (a
provision of FEHA specifying types of conduct that constitute harassment
because of sex) to read: ‘For purposes of this subdivision, “harassment” because
of sex includes sexual harassment, gender harassment, and harassment based on
pregnancy, childbirth, or related medical conditions. Sexually harassing conduct
need not be motivated by sexual desire.’ ” (Lewis, supra, 224 Cal.App.4th at p.
1527 fn. 8, original italics.)
• “California courts have held so-called ‘me too’ evidence, that is, evidence of
gender bias against employees other than the plaintiff, may be admissible
evidence in discrimination and harassment cases.” (Meeks, supra, 24 Cal.App.5th
at p. 871.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of
Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
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2521B. Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that coworkers at [name of defendant] were
subjected to harassment based on [describe protected status, e.g., race,
gender, or age] and that this harassment created a work environment for
[name of plaintiff] that was hostile, intimidating, offensive, oppressive, or
abusive.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was [an employee of/an applicant for a
position with/a person providing services under a contract with/
an unpaid intern with/a volunteer with] [name of defendant];
2. That [name of plaintiff], although not personally subjected to
harassing conduct, personally witnessed harassing conduct that
took place in [his/her/nonbinary pronoun] immediate work
environment;
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances would have
considered the work environment to be hostile, intimidating,
offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive toward [e.g.,
women];
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor engaged in the conduct;]
6. [or]
6. [That [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] knew or should have known of the conduct
and failed to take immediate and appropriate corrective action;]
7. That [name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [name of
plaintiff]’s harm.
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, November 2021
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Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was not
the target of the harassing conduct and the defendant is an employer or other entity
covered by the FEHA. If the defendant is a labor organization, employment agency,
apprenticeship training program or any training program leading to employment
(rather than an employer), the instruction should be modified as appropriate. (See
Gov. Code, § 12940(j)(1).) The relevant provision protects an employee, an
applicant, an unpaid intern or volunteer, or a person providing services under a
contract. (See ibid.) If the alleged harassment did not occur in the workplace, the
instruction should be modified as appropriate. (See Doe v. Capital Cities (1996) 50
Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long as the harassment occurs
in a work-related context, the employer is liable”].)
For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see
CACI No. 2522B, Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Individual Defendant. For a case in which the
plaintiff is the target of the harassment, see CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant. For an instruction for use if the hostile environment is due to
sexual favoritism, see CACI No. 2521C, Work Environment Harassment—Sexual
Favoritism—Essential Factual Elements—Employer or Entity Defendant. Also read
CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or
Pervasive” Explained.
In element 6, select the applicable basis of employer liability: (a) strict liability for a
supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct. For
a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor”
Defined. If there are both employer and individual supervisor defendants (see CACI
No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential
Factual Elements—Individual Defendant) and both are found liable, they are both
jointly and severally liable for any damages. Comparative fault and Proposition 51
do not apply to the employer’s strict liability for supervisor harassment. (State
Dep’t. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6
Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993)
13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in
Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d
109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847,
1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are
without fault and only have vicarious liability by virtue of some statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
Sources and Authority
• Legislative Intent With Regard to Application of the Laws About Harassment.
Government Code section 12923.
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• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “The elements [of a prima facie claim of hostile-environment sexual harassment]
are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to
unwelcome sexual harassment; (3) the harassment complained of was based on
sex; (4) the harassment complained of was sufficiently pervasive so as to alter
the conditions of employment and create an abusive working environment; and
(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “The plaintiff’s work environment is affected not only by conduct directed at
herself but also by the treatment of others. A woman’s perception that her work
environment is hostile to women will obviously be reinforced if she witnesses
the harassment of other female workers.” (Beyda v. City of Los Angeles (1998)
65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
• “Harassment against others in the workplace is only relevant to the plaintiff’s
case if she has personal knowledge of it. Unless plaintiff witnesses the conduct
against others, or is otherwise aware of it, that conduct cannot alter the
conditions of her employment and create an abusive working environment.
Stated another way, a reasonable person in plaintiff’s position would not find the
environment hostile or abusive unless that person had knowledge of the
objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
• “To state that an employee must be the direct victim of the sexually harassing
conduct is somewhat misleading as an employee who is subjected to a hostile
work environment is a victim of sexual harassment even though no offensive
remarks or touchings are directed to or perpetrated upon that employee.
Generally, however, sexual conduct that involves or is aimed at persons other
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than the plaintiff is considered less offensive and severe than conduct that is
directed at the plaintiff. A hostile work environment sexual harassment claim by
a plaintiff who was not personally subjected to offensive remarks and touchings
requires ‘an even higher showing’ than a claim by one who had been sexually
harassed without suffering tangible job detriment: such a plaintiff must ‘establish
that the sexually harassing conduct permeated [her] direct work environment.’ [¶]
To meet this burden, the plaintiff generally must show that the harassment
directed at others was in her immediate work environment, and that she
personally witnessed it. The reason for this is obvious: if the plaintiff does not
witness the incidents involving others, ‘those incidents cannot affect . . . her
perception of the hostility of the work environment.’ ” (Lyle v. Warner Brothers
Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d 2, 132
P.3d 211], internal citations omitted.)
• “[U]nder the FEHA, an employer is strictly liable for all acts of sexual
harassment by a supervisor. (State Dep’t. of Health Servs., supra, 31 Cal.4th at p.
1041, original italics.)
• “The applicable language of the FEHA does not suggest that an employer’s
liability for sexual harassment by a supervisor is constrained by principles of
agency law. Had the Legislature so intended, it would have used language in the
FEHA imposing the negligence standard of liability on acts of harassment by an
employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not
acting within the scope of an agency for the employer.’ By providing instead in
section 12940, subdivision (j)(1), that the negligence standard applies to acts of
harassment ‘by an employee other than an agent or supervisor’ (italics added),
the Legislature has indicated that all acts of harassment by a supervisor are to be
exempted from the negligence standard, whether or not the supervisor was then
acting as the employer’s agent, and that agency principles come into play only
when the harasser is not a supervisor. (State Dept. of Health Servs., supra, 31
Cal.4th at p. 1041, original italics.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it becomes
or reasonably should become aware of the conduct—for example, when the
victim or someone else informs the employer—there simply is no ‘unlawful
employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
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Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
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2521C. Work Environment Harassment—Sexual
Favoritism—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to
harassment based on sexual favoritism at [name of defendant] and that
this harassment created a work environment that was hostile,
intimidating, offensive, oppressive, or abusive. “Sexual favoritism” means
that another employee has received preferential treatment with regard to
promotion, work hours, assignments, or other significant employment
benefits or opportunities because of a sexual relationship with an
individual representative of the employer who was in a position to grant
those preferences.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was [an employee of/an applicant for a
position with/a person providing services under a contract with/
an unpaid intern with/a volunteer with] [name of defendant];
2. That there was sexual favoritism in the work environment;
3. That the sexual favoritism was severe or pervasive;
4. That a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances would have
considered the conduct to be hostile, intimidating, offensive,
oppressive, or abusive because of the sexual favoritism;
5. That [name of plaintiff] considered the conduct to be hostile,
intimidating, offensive, oppressive, or abusive because of the
sexual favoritism;
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor [engaged in the conduct/created the sexual
favoritism];]
6. [or]
6. [That [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] knew or should have known of the sexual
favoritism and failed to take immediate and appropriate
corrective action;]
7. That [name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [name of
plaintiff]’s harm.
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Derived from former CACI No. 2521 December 2007; Revised December 2015, May
2018, July 2019, May 2020, November 2021
Directions for Use
This instruction is for use in a hostile work environment case involving sexual
favoritism when the defendant is an employer or other entity covered by the FEHA.
If the defendant is a labor organization, employment agency, apprenticeship training
program or any training program leading to employment (rather than an employer),
the instruction should be modified as appropriate. (See Gov. Code, § 12940(j)(1).)
The relevant provision protects an employee, an applicant, an unpaid intern or
volunteer, or a person providing services under a contract. (See ibid.) If the facts of
the case support it, the instruction should be modified as appropriate for the
applicant’s circumstances.
For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see
CACI No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential
Factual Elements—Individual Defendant. For a case in which the plaintiff is the
target of harassment based on a protected status such as gender, race, or sexual
orientation, see CACI No. 2521A, Work Environment Harassment—Conduct
Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.
For an instruction for use if the plaintiff is not the target of the harassment, see
CACI No. 2521B, Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity Defendant. Also read
CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or
Pervasive” Explained.
In element 6, select the applicable basis of employer liability: (a) strict liability for a
supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct. For
a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor”
Defined. If there are both employer and individual supervisor defendants (see CACI
No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Individual Defendant) and both are found liable, they are both jointly and
severally liable for any damages. Comparative fault and Proposition 51 do not apply
to the employer’s strict liability for supervisor harassment. (State Dep’t of Health
Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79
P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976,
1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in Lakin v. Watkins
Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179];
see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847, 1851 [12
Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault
and only have vicarious liability by virtue of some statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
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Sources and Authority
• Declaration of Legislative Intent With Regard to Application of the Laws About
Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “The elements [of a prima facie claim of hostile-environment sexual harassment]
are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to
unwelcome sexual harassment; (3) the harassment complained of was based on
sex; (4) the harassment complained of was sufficiently pervasive so as to alter
the conditions of employment and create an abusive working environment; and
(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “Following the guidance of the EEOC, and also employing standards adopted in
our prior cases, we believe that an employee may establish an actionable claim
of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working conditions
and create a hostile work environment.” (Miller v. Dept. of Corrections (2005)
36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations
omitted.)
• “[S]exual favoritism by a manager may be actionable when it leads employees to
believe that ‘they [can] obtain favorable treatment from [the manager] if they
became romantically involved with him’, the affair is conducted in a manner ‘so
indiscreet as to create a hostile work environment,’ or the manager has engaged
in ‘other pervasive conduct . . . which created a hostile work environment.’ ”
(Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
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• “[A] romantic relationship between a supervisor and an employee does not,
without more, give rise to a sexual discrimination or sexual harassment claim
either under the FEHA or the public policy of the state.” (Proksel v. Gattis
(1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
• “The FEHA imposes two standards of employer liability for sexual harassment,
depending on whether the person engaging in the harassment is the victim’s
supervisor or a nonsupervisory coemployee. The employer is liable for
harassment by a nonsupervisory employee only if the employer (a) knew or
should have known of the harassing conduct and (b) failed to take immediate
and appropriate corrective action. This is a negligence standard. Because the
FEHA imposes this negligence standard only for harassment ‘by an employee
other than an agent or supervisor’, by implication the FEHA makes the employer
strictly liable for harassment by a supervisor.” (State Dept. of Health Servs.,
supra, 31 Cal.4th at pp. 1040–1041, original italics.)
• “The applicable language of the FEHA does not suggest that an employer’s
liability for sexual harassment by a supervisor is constrained by principles of
agency law. Had the Legislature so intended, it would have used language in the
FEHA imposing the negligence standard of liability on acts of harassment by an
employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not
acting within the scope of an agency for the employer.’ By providing instead in
section 12940, subdivision (j)(1), that the negligence standard applies to acts of
harassment ‘by an employee other than an agent or supervisor’ (italics added),
the Legislature has indicated that all acts of harassment by a supervisor are to be
exempted from the negligence standard, whether or not the supervisor was then
acting as the employer’s agent, and that agency principles come into play only
when the harasser is not a supervisor. (State Dept. of Health Servs., supra, 31
Cal.4th at p. 1041, original italics.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it becomes
or reasonably should become aware of the conduct—for example, when the
victim or someone else informs the employer—there simply is no ‘unlawful
employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
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Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
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2522A. Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Individual Defendant (Gov.
Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that [name of defendant] subjected
[him/her/nonbinary pronoun] to harassment based on [describe protected
status, e.g., race, gender, or age] at [name of employer] and that this
harassment created a work environment that was hostile, intimidating,
offensive, oppressive, or abusive.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was [an employee of/an applicant for a
position with/a person providing services under a contract with/
an unpaid intern with/a volunteer with] [name of employer];
2. That [name of plaintiff] was subjected to harassing conduct
because [he/she/nonbinary pronoun] was [protected status, e.g., a
woman];
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances would have considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive;
6. That [name of defendant] [participated in/assisted/ [or]
encouraged] the harassing conduct;
7. That [name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [name of
plaintiff]’s harm.
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, May 2020, November 2021
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was the
target of the harassing conduct and the defendant is an individual such as the
alleged harasser or plaintiff’s coworker. The relevant provision protects an
employee, an applicant, an unpaid intern or volunteer, or a person providing services
under a contract. (See Gov. Code, § 12940(j)(1).) If the alleged harassment did not
occur in the workplace, the instruction should be modified as appropriate. (See Doe
v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long
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as the harassment occurs in a work-related context, the employer is liable”].)
For an employer defendant, see CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant. For a case in which the plaintiff is not the target of the
harassment, see CACI No. 2522B, Work Environment Harassment—Conduct
Directed at Others—Essential Factual Elements—Individual Defendant. For an
instruction for use if the hostile environment is due to sexual favoritism, see CACI
No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct”
Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
Modify element 2 if the plaintiff was not actually a member of the protected class,
but alleges harassment because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If there are both employer and individual supervisor defendants (see CACI No.
2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential
Factual Elements—Employer or Entity Defendant) and both are found liable, they
are both jointly and severally liable for any damages. Comparative fault and
Proposition 51 do not apply to the employer’s strict liability for supervisor
harassment. (State Dept. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026,
1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information
Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on
other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664
[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9
Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to
those who are without fault and only have vicarious liability by virtue of some
statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
Sources and Authority
• Legislative Intent With Regard to Application of the Laws About Harassment.
Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• Personal Liability for Harassment. Government Code section 12940(j)(3).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
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• Perception and Association. Government Code section 12926(o).
• “To establish a prima facie case of a hostile work environment, [the plaintiff]
must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was
subjected to unwelcome harassment; (3) the harassment was based on
[plaintiff’s] protected status; (4) the harassment unreasonably interfered with
[plaintiff’s] work performance by creating an intimidating, hostile, or offensive
work environment; and (5) defendants are liable for the harassment.” (Ortiz v.
Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “Under FEHA, an employee who harasses another employee may be held
personally liable.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1524
[169 Cal.Rptr.3d 794].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of the
harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331 [58 Cal.Rptr.2d 308].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56–2:56.50 (Thomson
Reuters)
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2522B. Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Individual Defendant (Gov.
Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that coworkers at [name of employer] were
subjected to harassment based on [describe protected status, e.g., race,
gender, or age] and that this harassment created a work environment for
[name of plaintiff] that was hostile, intimidating, offensive, oppressive, or
abusive.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was [an employee of/an applicant for a
position with/a person providing services under a contract with/
an unpaid intern with/a volunteer with] [name of employer];
2. That [name of plaintiff], although not personally subjected to
harassing conduct, personally witnessed harassing conduct that
took place in [his/her/nonbinary pronoun] immediate work
environment;
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances would have
considered the work environment to be hostile, intimidating,
offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive toward [e.g.,
women];
6. That [name of defendant] [participated in/assisted/ [or]
encouraged] the harassing conduct;
7. That [name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [name of
plaintiff]’s harm.
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015, May 2018, July 2019, November 2021
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was not
the target of the harassing conduct and the defendant is an individual such as the
alleged harasser or plaintiff’s coworker. The relevant provision protects an
employee, an applicant, an unpaid intern or volunteer, or a person providing services
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under a contract. (See Gov. Code, § 12940(j)(1).) If the alleged harassment did not
occur in the workplace, the instruction should be modified as appropriate. (See Doe
v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long
as the harassment occurs in a work-related context, the employer is liable”].)
For an employer defendant, see CACI No. 2521B, Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Employer
or Entity Defendant. For a case in which the plaintiff is the target of the harassment,
see CACI No. 2522A, Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Individual Defendant. For an instruction for
use if the hostile environment is due to sexual favoritism, see CACI No. 2522C,
Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct”
Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
If there are both employer and individual supervisor defendants (see CACI No.
2521B, Work Environment Harassment—Conduct Directed at Others—Essential
Factual Elements—Employer or Entity Defendant) and both are found liable, they
are both jointly and severally liable for any damages. Comparative fault and
Proposition 51 do not apply to the employer’s strict liability for supervisor
harassment. (State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026,
1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information
Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on
other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664
[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9
Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to
those who are without fault and only have vicarious liability by virtue of some
statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
Sources and Authority
• Legislative Intent With Regard to Application of the Laws About Harassment.
Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• Personal Liability for Harassment. Government Code section 12940(j)(3).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
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• Perception and Association. Government Code section 12926(o).
• “The elements [of a prima facie claim of hostile-environment sexual harassment]
are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to
unwelcome sexual harassment; (3) the harassment complained of was based on
sex; (4) the harassment complained of was sufficiently pervasive so as to alter
the conditions of employment and create an abusive working environment; and
(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “The plaintiff’s work environment is affected not only by conduct directed at
herself but also by the treatment of others. A woman’s perception that her work
environment is hostile to women will obviously be reinforced if she witnesses
the harassment of other female workers.” (Beyda v. City of Los Angeles (1998)
65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
• “Harassment against others in the workplace is only relevant to the plaintiff’s
case if she has personal knowledge of it. Unless plaintiff witnesses the conduct
against others, or is otherwise aware of it, that conduct cannot alter the
conditions of her employment and create an abusive working environment.
Stated another way, a reasonable person in plaintiff’s position would not find the
environment hostile or abusive unless that person had knowledge of the
objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
• “To state that an employee must be the direct victim of the sexually harassing
conduct is somewhat misleading as an employee who is subjected to a hostile
work environment is a victim of sexual harassment even though no offensive
remarks or touchings are directed to or perpetrated upon that employee.
Generally, however, sexual conduct that involves or is aimed at persons other
than the plaintiff is considered less offensive and severe than conduct that is
directed at the plaintiff. A hostile work environment sexual harassment claim by
a plaintiff who was not personally subjected to offensive remarks and touchings
requires ‘an even higher showing’ than a claim by one who had been sexually
harassed without suffering tangible job detriment: such a plaintiff must ‘establish
that the sexually harassing conduct permeated [her] direct work environment.’ [¶]
To meet this burden, the plaintiff generally must show that the harassment
directed at others was in her immediate work environment, and that she
personally witnessed it. The reason for this is obvious: if the plaintiff does not
witness the incidents involving others, ‘those incidents cannot affect . . . her
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perception of the hostility of the work environment.’ ” (Lyle v. Warner Brothers
Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d 2, 132
P.3d 211], internal citations omitted.)
• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent
sexual harassment, is not personally liable for sexual harassment under the Fair
Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of the
harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
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2522C. Work Environment Harassment—Sexual
Favoritism—Essential Factual Elements—Individual Defendant
(Gov. Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to
harassment based on sexual favoritism at [name of employer] and that
this harassment created a work environment that was hostile,
intimidating, offensive, oppressive, or abusive. “Sexual favoritism” means
that another employee has received preferential treatment with regard to
promotion, work hours, assignments, or other significant employment
benefits or opportunities because of a sexual relationship with an
individual representative of the employer who was in a position to grant
these preferences.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was [an employee of/an applicant for a
position with/a person providing services under a contract with/
an unpaid intern with/a volunteer with] [name of employer];
2. That there was sexual favoritism in the work environment;
3. That the sexual favoritism was severe or pervasive;
4. That a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances would have
considered the work environment to be hostile, intimidating,
offensive, oppressive, or abusive because of the sexual favoritism;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive because of
the sexual favoritism;
6. That [name of defendant] [participated in/assisted/ [or]
encouraged] the sexual favoritism;
7. That [name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [name of
plaintiff]’s harm.
Derived from former CACI No. 2522 December 2007; Revised December 2015, May
2018, July 2019, May 2020, November 2021
Directions for Use
This instruction is for use in a hostile work environment case involving sexual
favoritism when the defendant is an individual such as the alleged harasser or
plaintiff’s coworker. The relevant provision protects an employee, an applicant, an
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unpaid intern or volunteer, or a person providing services under a contract. (Gov.
Code, § 12940(j)(1).) If the facts of the case support it, the instruction should be
modified as appropriate to the applicant’s circumstances.
For an employer defendant, see CACI No. 2521C, Work Environment
Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity
Defendant. For a case in which the plaintiff is the target of harassment based on a
protected status such as gender, race, or sexual orientation, see CACI No. 2522A,
Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant. For an instruction for use if the plaintiff is not the
target of the harassment, see CACI No. 2522B, Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI
No. 2524, “Severe or Pervasive” Explained.
If there are both employer and individual supervisor defendants (see CACI No.
2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant) and both are found liable, they are both
jointly and severally liable for any damages. Comparative fault and Proposition 51
do not apply to the employer’s strict liability for supervisor harassment. (State Dep’t
of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6
Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993)
13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in
Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d
109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847,
1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are
without fault and only have vicarious liability by virtue of some statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
Sources and Authority
• Declaration of Legislative Intent With Regard to Application of the Laws About
Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• Personal Liability for Harassment. Government Code section 12940(j)(3).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
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• “The elements [of a prima facie claim of hostile-environment sexual harassment]
are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to
unwelcome sexual harassment; (3) the harassment complained of was based on
sex; (4) the harassment complained of was sufficiently pervasive so as to alter
the conditions of employment and create an abusive working environment; and
(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “Following the guidance of the EEOC, and also employing standards adopted in
our prior cases, we believe that an employee may establish an actionable claim
of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working conditions
and create a hostile work environment.” (Miller v. Dept. of Corrections (2005)
36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations
omitted.)
• “[S]exual favoritism by a manager may be actionable when it leads employees to
believe that ‘they [can] obtain favorable treatment from [the manager] if they
became romantically involved with him’, the affair is conducted in a manner ‘so
indiscreet as to create a hostile work environment,’ or the manager has engaged
in ‘other pervasive conduct . . . which created a hostile work environment.’ ”
(Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
• “[A] romantic relationship between a supervisor and an employee does not,
without more, give rise to a sexual discrimination or sexual harassment claim
either under the FEHA or the public policy of the state.” (Proksel v. Gattis
(1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent
sexual harassment, is not personally liable for sexual harassment under the Fair
Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of the
harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
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§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36[5] (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
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2523. “Harassing Conduct” Explained
Harassing conduct may include, but is not limited to, [any of the
following:]
[a. Verbal harassment, such as obscene language, demeaning
comments, slurs, [or] threats [or] [describe other form of verbal
harassment];] [or]
[b. Physical harassment, such as unwanted touching, assault, or
physical interference with normal work or movement;] [or]
[c. Visual harassment, such as offensive posters, objects, cartoons, or
drawings;] [or]
[d. Unwanted sexual advances;] [or]
[e. [Describe other form of harassment if appropriate, e.g., derogatory,
unwanted, or offensive photographs, text messages, Internet
postings].]
New September 2003; Revised December 2007, December 2015
Directions for Use
Read this instruction with CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant; CACI No. 2521B, Work Environment Harassment—Conduct
Directed at Others—Essential Factual Elements—Employer or Entity Defendant;
CACI No. 2522A, Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Individual Defendant; or CACI No. 2522B,
Work Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Individual Defendant. Read also CACI No. 2524, “Severe or Pervasive”
Explained, if appropriate.
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Harassment” Defined. Cal. Code Regs., tit. 2, § 11019(b)(2).
• “Harassment is distinguishable from discrimination under the FEHA.
‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the
employer, and harassment refers to bias that is expressed or communicated
through interpersonal relations in the workplace.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 869 [172 Cal.Rptr.3d 732].)
• “[H]arassment consists of a type of conduct not necessary for performance of a
supervisory job. Instead, harassment consists of conduct outside the scope of
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necessary job performance, conduct presumably engaged in for personal
gratification, because of meanness or bigotry, or for other personal motives.
Harassment is not conduct of a type necessary for management of the
employer’s business or performance of the supervisory employee’s job.” (Reno v.
Baird (1998) 18 Cal.4th 640, 645–646 [76 Cal.Rptr.2d 499, 957 P.2d 1333],
internal citations omitted.)
• “No supervisory employee needs to use slurs or derogatory drawings, to
physically interfere with freedom of movement, to engage in unwanted sexual
advances, etc., in order to carry out the legitimate objectives of personnel
management. Every supervisory employee can insulate himself or herself from
claims of harassment by refraining from such conduct.” (Serri, supra, 226
Cal.App.4th at p. 869.)
• “We conclude, therefore, that the Legislature intended that commonly necessary
personnel management actions such as hiring and firing, job or project
assignments, office or work station assignments, promotion or demotion,
performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not
attend meetings, deciding who will be laid off, and the like, do not come within
the meaning of harassment. These are actions of a type necessary to carry out
the duties of business and personnel management. These actions may
retrospectively be found discriminatory if based on improper motives, but in that
event the remedies provided by the FEHA are those for discrimination, not
harassment. Harassment, by contrast, consists of actions outside the scope of job
duties which are not of a type necessary to business and personnel management.
This significant distinction underlies the differential treatment of harassment and
discrimination in the FEHA.” (Reno, supra, 18 Cal.4th at pp. 646–647, internal
citation omitted.)
• “[W]e can discern no reason why an employee who is the victim of
discrimination based on some official action of the employer cannot also be the
victim of harassment by a supervisor for abusive messages that create a hostile
working environment, and under the FEHA the employee would have two
separate claims of injury.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707
[101 Cal.Rptr.3d 773, 219 P.3d 749].)
• “Here, [plaintiff]’s discrimination claim sought compensation for official
employment actions that were motivated by improper bias. These discriminatory
actions included not only the termination itself but also official employment
actions that preceded the termination, such as the progressive disciplinary
warnings and the decision to assign [plaintiff] to answer the office telephones
during office parties. [Plaintiff]’s harassment claim, by contrast, sought
compensation for hostile social interactions in the workplace that affected the
workplace environment because of the offensive message they conveyed to
[plaintiff]. These harassing actions included [supervisor]’s demeaning comments
to [plaintiff] about her body odor and arm sores, [supervisor]’s refusal to respond
to [plaintiff]’s greetings, [supervisor]’s demeaning facial expressions and gestures
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toward [plaintiff], and [supervisor]’s disparate treatment of [plaintiff] in handing
out small gifts. None of these events can fairly be characterized as an official
employment action. None involved [supervisor]’s exercising the authority that
[employer] had delegated to her so as to cause [employer], in its corporate
capacity, to take some action with respect to [plaintiff]. Rather, these were events
that were unrelated to [supervisor]’s managerial role, engaged in for her own
purposes.” (Roby, supra, 47 Cal.4th at pp. 708–709, original italics, footnote
omitted.)
• “[S]ome official employment actions done in furtherance of a supervisor’s
managerial role can also have a secondary effect of communicating a hostile
message. This occurs when the actions establish a widespread pattern of bias.
Here, some actions that [supervisor] took with respect to [plaintiff] are best
characterized as official employment actions rather than hostile social
interactions in the workplace, but they may have contributed to the hostile
message that [supervisor] was expressing to [plaintiff] in other, more explicit
ways. These would include [supervisor]’s shunning of [plaintiff] during staff
meetings, [supervisor]’s belittling of [plaintiff]’s job, and [supervisor]’s
reprimands of [plaintiff] in front of [plaintiff]’s coworkers. Moreover, acts of
discrimination can provide evidentiary support for a harassment claim by
establishing discriminatory animus on the part of the manager responsible for the
discrimination, thereby permitting the inference that rude comments or behavior
by that same manager were similarly motivated by discriminatory animus.”
(Roby, supra, 47 Cal.4th at p. 709.)
• “[A]busive conduct that is not facially sex specific can be grounds for a hostile
environment sexual harassment claim if it is inflicted because of gender, i.e., if
men and women are treated differently and the conduct is motivated by gender
bias.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130 [129 Cal.Rptr.3d 384],
original italics.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:125–10:155 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and
Other Harassment, §§ 3.13, 3.36
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.80[1][a][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
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2524. “Severe or Pervasive” Explained
“Severe or pervasive” means conduct that alters the conditions of
employment and creates a work environment that is hostile, intimidating,
offensive, oppressive, or abusive.
In determining whether the conduct was severe or pervasive, you should
consider all the circumstances, including any or all of the following:
(a) The nature of the conduct;
(b) How often, and over what period of time, the conduct occurred;
(c) The circumstances under which the conduct occurred;
(d) Whether the conduct was physically threatening or humiliating.
[Name of plaintiff] does not have to prove that [his/her/nonbinary pronoun]
productivity has declined. It is sufficient to prove that a reasonable
person who was subjected to the harassing conduct would find that the
conduct so altered working conditions as to make it more difficult to do
the job.
[A single incident can be sufficiently severe or pervasive to constitute
harassment.]
New September 2003; Revised December 2007, July 2019
Directions for Use
Read this instruction with any of the Work Environment Harassment instructions
(CACI Nos. 2521A, 2521B, 2521C, 2522A, 2522B, and 2522C). Read also CACI
No. 2523, “Harassing Conduct” Explained. Give the last optional sentence if a
single incident forms the basis of the claim. (See Gov. Code, § 12923(b) [single
incident of harassing conduct can be sufficient to create a triable issue regarding the
existence of a hostile work environment].)
In determining what constitutes “sufficiently pervasive” harassment, the courts have
held that acts of harassment cannot be occasional, isolated, sporadic, or trivial. (See
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610 [262
Cal.Rptr. 842].) Whether this limitation remains in light of Government Code
section 12923 is not clear.
Sources and Authority
• “We have agreed with the United States Supreme Court that, to prevail, an
employee claiming harassment based upon a hostile work environment must
demonstrate that the conduct complained of was severe enough or sufficiently
pervasive to alter the conditions of employment and create a work environment
that qualifies as hostile or abusive to employees because of their sex. The
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working environment must be evaluated in light of the totality of the
circumstances: ‘[W]hether an environment is “hostile” or “abusive” can be
determined only by looking at all the circumstances. These may include the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’ ” (Miller v. Dept.
of Corrections (2005) 36 Cal.4th 446, 462 [30 Cal.Rptr.3d 797, 115 P.3d 77],
internal citations omitted.)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “For sexual harassment to be actionable, it must be sufficiently severe or
pervasive ‘to alter the conditions of [the victim’s] employment and create an
abusive working environment.’ . . . [¶] ‘Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment—an
environment that a reasonable person would find hostile or abusive—is beyond
Title VII’s purview. Likewise, if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the conditions of
the victim’s employment, and there is no Title VII violation.’ . . . California
courts have adopted the same standard in evaluating claims under the FEHA.”
(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130 [87
Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
• “Whether the sexual conduct complained of is sufficiently pervasive to create a
hostile or offensive work environment must be determined from the totality of
the circumstances. The plaintiff must prove that the defendant’s conduct would
have interfered with a reasonable employee’s work performance . . . and that
she was actually offended . . . . The factors that can be considered in evaluating
the totality of the circumstances are: (1) the nature of the unwelcome sexual acts
or works (generally, physical touching is more offensive than unwelcome verbal
abuse); (2) the frequency of the offensive encounters; (3) the total number of
days over which all of the offensive conduct occurs; and (4) the context in
which the sexually harassing conduct occurred.” (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 609–610 [262 Cal.Rptr. 842], internal
citation omitted.)
• “The United States Supreme Court . . . has clarified that conduct need not
seriously affect an employee’s psychological well-being to be actionable as
abusive work environment harassment. So long as the environment reasonably
would be perceived, and is perceived, as hostile or abusive, there is no need for
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it also to be psychologically injurious.” (Kelly-Zurian v. Wohl Shoe Co., Inc.
(1994) 22 Cal.App.4th 397, 412 [27 Cal.Rptr.2d 457], internal citations omitted.)
• “As the Supreme Court recently reiterated, in order to be actionable, ‘. . . a
sexually objectionable environment must be both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.’ The work environment must be
viewed from the perspective of a reasonable person in the plaintiff’s position,
considering ‘all the circumstances.’ This determination requires judges and juries
to exercise ‘[c]ommon sense, and an appropriate sensitivity to social context’ in
order to evaluate whether a reasonable person in the plaintiff’s position would
find the conduct severely hostile or abusive.” (Beyda v. City of Los Angeles
(1998) 65 Cal.App.4th 511, 518–519 [76 Cal.Rptr.2d 547], internal citations
omitted.)
• “The requirement that the conduct be sufficiently severe or pervasive to create a
working environment a reasonable person would find hostile or abusive is a
crucial limitation that prevents sexual harassment law from being expanded into
a ‘general civility code.’ ” (Jones v. Department of Corrections & Rehabilitation
(2007) 152 Cal.App.4th 1367, 1377 [62 Cal.Rptr.3d 200], internal citations
omitted.)
• “[T]he jury only needed to find the harassing conduct to be either severe or
pervasive . . . .” (Caldera v. Department of Corrections & Rehabilitation (2018)
25 Cal.App.5th 31, 40 [235 Cal.Rptr.3d 262].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin, et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:160–10:249 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.17, 3.36–3.41
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation, § 2:56 (Thomson Reuters)
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2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))
[Name of alleged harasser] was a supervisor of [name of defendant] if [he/
she/nonbinary pronoun] had any of the following:
a. The authority to hire, transfer, promote, assign, reward,
discipline, [or] discharge [or] [insert other employment action]
[name of plaintiff] [or effectively to recommend any of these
actions];
b. The responsibility to act on [name of plaintiff]’s grievances [or
effectively to recommend action on grievances]; or
c. The responsibility to direct [name of plaintiff]’s daily work
activities.
[Name of alleged harasser]’s exercise of this authority or responsibility
must not be merely routine or clerical, but must require the use of
independent judgment.
New September 2003; Revised June 2006, December 2015
Directions for Use
The FEHA’s definition of “supervisor” refers to the “authority” for factor (a) and the
“responsibility” for factors (b) and (c). The difference, if any, between “authority”
and “responsibility” as used in the statute is not clear. The statute further requires
that “the exercise of that authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.” (See Gov. Code, § 12926(t) [emphasis
added].) However, at least one court has found the independent-judgment
requirement to be applicable to the responsibility for factor (c). (See Chapman v.
Enos (2004) 116 Cal.App.4th 920, 930–931 [10 Cal.Rptr.3d 852] [emphasis added].)
Therefore, the last sentence of the instruction refers to “authority or responsibility.”
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Supervisor” Defined. Government Code section 12926(t).
• “The FEHA imposes two standards of employer liability for sexual harassment,
depending on whether the person engaging in the harassment is the victim’s
supervisor or a nonsupervisory coemployee. The employer is liable for
harassment by a nonsupervisory employee only if the employer (a) knew or
should have known of the harassing conduct and (b) failed to take immediate
and appropriate corrective action. This is a negligence standard. Because the
FEHA imposes this negligence standard only for harassment ‘by an employee
other than an agent or supervisor’ by implication the FEHA makes the employer
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strictly liable for harassment by a supervisor.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal. 4th 1026, 1040–1041 [6 Cal. Rptr. 3d 441, 79
P.3d 556], internal citations omitted.)
• “Unlike discrimination in hiring, the ultimate responsibility for which rests with
the employer, sexual or other harassment perpetrated by a supervisor with the
power to hire, fire and control the victimized employee’s working conditions is a
particularly personal form of the type of discrimination which the Legislature
sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court
(1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)
• “This section has been interpreted to mean that the employer is strictly liable for
the harassing actions of its supervisors and agents, but that the employer is only
liable for harassment by a coworker if the employer knew or should have known
of the conduct and failed to take immediate corrective action. Thus,
characterizing the employment status of the harasser is very significant.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal
citations omitted.)
• “The case and statutory authority set forth three clear rules. First, . . . a
supervisor who personally engages in sexually harassing conduct is personally
liable under the FEHA. Second, . . . if the supervisor participates in the sexual
harassment or substantially assists or encourages continued harassment, the
supervisor is personally liable under the FEHA as an aider and abettor of the
harasser. Third, under the FEHA, the employer is vicariously and strictly liable
for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th
1318, 1327 [58 Cal.Rptr.2d 308].)
• “[W]hile an employer’s liability under the [FEHA] for an act of sexual
harassment committed by a supervisor or agent is broader than the liability
created by the common law principle of respondeat superior, respondeat superior
principles are nonetheless relevant in determining liability when, as here, the
sexual harassment occurred away from the workplace and not during work
hours.” (Doe, supra, 50 Cal.App.4th at pp. 1048–1049.)
• “The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider
general principles of agency law. An agent is one who represents a principal in
dealings with third persons. An agent is a person authorized by the principal to
conduct one or more transactions with one or more third persons and to exercise
a degree of discretion in effecting the purpose of the principal. A supervising
employee is an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1328,
internal citations omitted.)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of the
harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[W]hile full accountability and responsibility are certainly indicia of supervisory
power, they are not required elements of . . . the FEHA definition of supervisor.
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Indeed, many supervisors with responsibility to direct others using their
independent judgment, and whose supervision of employees is not merely
routine or clerical, would not meet these additional criteria though they would
otherwise be within the ambit of the FEHA supervisor definition.” (Chapman,
supra, 116 Cal.App.4th at p. 930, footnote omitted.)
• “Defendants take the position that the court’s modified instruction is,
nonetheless, accurate because the phrase ‘responsibility to direct’ is the
functional equivalent of being ‘fully accountable and responsible for the
performance and work product of the employees. . . .’ In this, they rely on the
dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it
relates to the issue before us, this definition is unhelpful for two reasons. First,
one can be accountable for one’s own actions without being accountable for
those of others. Second, the argument appears to ignore the plain language of the
statute which itself defines the circumstances under which the exercise of the
responsibility to direct will be considered supervisory, i.e., ‘if . . . [it] is not of a
merely routine or clerical nature, but requires the use of independent
judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of
Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:321,
10:322 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harasser’s
Individual Liability, ¶ 10:499 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and
Other Harassment, § 3.21
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)
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2526. Affirmative Defense—Avoidable Consequences Doctrine
(Sexual Harassment by a Supervisor)
If [name of plaintiff] proves that [name of supervisor] sexually harassed
[him/her/nonbinary pronoun], [name of employer defendant] is responsible
for [name of plaintiff]’s harm caused by the harassment. However, [name
of employer defendant] claims that [name of plaintiff] could have avoided
some or all of the harm with reasonable effort. To succeed, [name of
employer defendant] must prove all of the following:
1. That [name of employer defendant] took reasonable steps to
prevent and correct workplace sexual harassment;
2. That [name of plaintiff] unreasonably failed to use the preventive
and corrective measures for sexual harassment that [name of
employer defendant] provided; and
3. That the reasonable use of [name of employer defendant]’s
procedures would have prevented some or all of [name of
plaintiff]’s harm.
You should consider the reasonableness of [name of plaintiff]’s actions in
light of the circumstances facing [him/her/nonbinary pronoun] at the time,
including [his/her/nonbinary pronoun] ability to report the conduct
without facing undue risk, expense, or humiliation.
If you decide that [name of employer defendant] has proved this claim,
you should not include in your award of damages the amount of
damages that [name of plaintiff] could have reasonably avoided.
New April 2004; Revised December 2011, December 2015, May 2020
Directions for Use
Give this instruction if the employer asserts the affirmative defense of “avoidable
consequences.” The essence of the defense is that the employee could have avoided
part or most of the harm had the employee taken advantage of procedures that the
employer had in place to address sexual harassment in the workplace. The
avoidable-consequences doctrine is a defense only to damages, not to liability. (State
Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1045 [6
Cal.Rptr.3d 441, 79 P.3d 556].) For other instructions that may also be given on
failure to mitigate damages generally, see CACI No. 3963, Affırmative
Defense—Employee’s Duty to Mitigate Damages, and CACI No. 3930, Mitigation of
Damages (Personal Injury).
Whether this defense may apply to claims other than for supervisor sexual
harassment has not been clearly addressed by the courts. It has been allowed against
a claim for age discrimination in a constructive discharge case. (See Rosenfeld v.
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Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 900–901
[172 Cal.Rptr.3d 465].)
Sources and Authority
• “[W]e conclude that under the FEHA, an employer is strictly liable for all acts
of sexual harassment by a supervisor. But strict liability is not absolute liability
in the sense that it precludes all defenses. Even under a strict liability standard, a
plaintiff’s own conduct may limit the amount of damages recoverable or bar
recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042,
internal citations omitted.)
• “We emphasize that the defense affects damages, not liability. An employer that
has exercised reasonable care nonetheless remains strictly liable for harm a
sexually harassed employee could not have avoided through reasonable care. The
avoidable consequences doctrine is part of the law of damages; thus, it affects
only the remedy available. If the employer establishes that the employee, by
taking reasonable steps to utilize employer-provided complaint procedures, could
have caused the harassing conduct to cease, the employer will nonetheless
remain liable for any compensable harm the employee suffered before the time
at which the harassment would have ceased, and the employer avoids liability
only for the harm the employee incurred thereafter.” (State Dept. of Health
Services, supra, 31 Cal.4th at p. 1045, internal citation omitted.)
• “Under the avoidable consequences doctrine as recognized in California, a
person injured by another’s wrongful conduct will not be compensated for
damages that the injured person could have avoided by reasonable effort or
expenditure. The reasonableness of the injured party’s efforts must be judged in
light of the situation existing at the time and not with the benefit of hindsight.
‘The standard by which the reasonableness of the injured party’s efforts is to be
measured is not as high as the standard required in other areas of law.’ The
defendant bears the burden of pleading and proving a defense based on the
avoidable consequences doctrine.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “Although courts explaining the avoidable consequences doctrine have
sometimes written that a party has a ‘duty’ to mitigate damages, commentators
have criticized the use of the term ‘duty’ in this context, arguing that it is more
accurate to state simply that a plaintiff may not recover damages that the
plaintiff could easily have avoided.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “We hold . . . that in a FEHA action against an employer for hostile
environment sexual harassment by a supervisor, an employer may plead and
prove a defense based on the avoidable consequences doctrine. In this particular
context, the defense has three elements: (1) the employer took reasonable steps
to prevent and correct workplace sexual harassment; (2) the employee
unreasonably failed to use the preventive and corrective measures that the
employer provided; and (3) reasonable use of the employer’s procedures would
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have prevented at least some of the harm that the employee suffered.” (State
Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)
• “This defense will allow the employer to escape liability for those damages, and
only those damages, that the employee more likely than not could have
prevented with reasonable effort and without undue risk, expense, or humiliation,
by taking advantage of the employer’s internal complaint procedures
appropriately designed to prevent and eliminate sexual harassment.” (State Dept.
of Health Services, supra, 31 Cal.4th at p. 1044, internal citations omitted.)
• “If the employer establishes that the employee, by taking reasonable steps to
utilize employer-provided complaint procedures, could have caused the harassing
conduct to cease, the employer will nonetheless remain liable for any
compensable harm the employee suffered before the time at which the
harassment would have ceased, and the employer avoids liability only for the
harm the employee incurred thereafter.” (State Dept. of Health Services, supra,
31 Cal.4th at p. 1045, internal citations omitted.)
• “We stress also that the holding we adopt does not demand or expect that
employees victimized by a supervisor’s sexual harassment must always report
such conduct immediately to the employer through internal grievance
mechanisms. The employer may lack an adequate antiharassment policy or
adequate procedures to enforce it, the employer may not have communicated the
policy or procedures to the victimized employee, or the employee may
reasonably fear reprisal by the harassing supervisor or other employees.
Moreover, in some cases an employee’s natural feelings of embarrassment,
humiliation, and shame may provide a sufficient excuse for delay in reporting
acts of sexual harassment by a supervisor.” (State Dept. of Health Services,
supra, 31 Cal.4th at p. 1045.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365–10:367, 10:371,
10:375 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)
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2527. Failure to Prevent Harassment, Discrimination, or
Retaliation—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, § 12940(k))
[Name of plaintiff] claims that [name of defendant] failed to take all
reasonable steps to prevent [harassment/discrimination/retaliation]
[based on [describe protected status—e.g., race, gender, or age]]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/was a person providing
services under a contract with [name of defendant]];
2. That [name of plaintiff] was subjected to
[harassment/discrimination/retaliation] in the course of
employment;
3. That [name of defendant] failed to take all reasonable steps to
prevent the [harassment/discrimination/retaliation];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s failure to take all reasonable steps to
prevent [harassment/discrimination/retaliation] was a substantial
factor in causing [name of plaintiff]’s harm.
New June 2006; Revised April 2007, June 2013, December 2015
Directions for Use
Give this instruction after the appropriate instructions in this series on the
underlying claim for discrimination, retaliation, or harassment if the employee also
claims that the employer failed to prevent the conduct. (See Gov. Code, § 12940(k).)
Read the bracketed language in the opening paragraph beginning with “based on” if
the claim is for failure to prevent harassment or discrimination.
For guidance for a further instruction on what constitutes “reasonable steps,” see
section 11019(b)(4) of Title 2 of the California Code of Regulations.
Sources and Authority
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative
and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd.
(2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
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corrective action that is reasonably calculated to (1) end the current harassment
and (2) to deter future harassment. [Citation.] The employer’s obligation to take
prompt corrective action requires (1) that temporary steps be taken to deal with
the situation while the employer determines whether the complaint is justified
and (2) that permanent remedial steps be implemented by the employer to
prevent future harassment . . . .” (M.F. v. Pacific Pearl Hotel Management LLC
(2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)
• “This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word
“tort” means a civil wrong, other than a breach of contract, for which the law
will provide a remedy in the form of an action for damages.’ ‘It is well settled
the Legislature possesses a broad authority . . . to establish . . . tort causes of
action.’ Examples of statutory torts are plentiful in California law.” ’ Section
12960 et seq. provides procedures for the prevention and elimination of unlawful
employment practices. In particular, section 12965, subdivision (a) authorizes the
Department of Fair Employment and Housing (DFEH) to bring an accusation of
an unlawful employment practice if conciliation efforts are unsuccessful, and
section 12965, subdivision (b) creates a private right of action for damages for a
complainant whose complaint is not pursued by the DFEH.” (Trujillo v. North
County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73 Cal.Rptr.2d 596],
internal citations omitted.)
• “With these rules in mind, we examine the section 12940 claim and finding with
regard to whether the usual elements of a tort, enforceable by private plaintiffs,
have been established: Defendants’ legal duty of care toward plaintiffs, breach of
duty (a negligent act or omission), legal causation, and damages to the plaintiff.”
(Trujillo, supra, 63 Cal.App.4th at pp. 286–287, internal citation omitted.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take
immediate and appropriate corrective action’ is a question of fact.” (M.F., supra,
16 Cal.App.5th at p. 703, internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under
FEHA before a plaintiff may prevail under section 12940, subdivision (k).”
(Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184
Cal.Rptr.3d 774].)
• “Also, there is a significant question of how there could be legal causation of
any damages (either compensatory or punitive) from such a statutory violation,
where the only jury finding was the failure to prevent actionable harassment or
discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th
at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015), . . . states that the failure
to prevent instruction should be given ‘after the appropriate instructions in this
series on the underlying claim for . . . harassment if the employee also claims
that the employer failed to prevent the conduct.’ An instruction on the elements
of an underlying sexual harassment claim would be unnecessary if the failure to
take reasonable steps necessary to prevent a claim for harassment could be based
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on harassing conduct that was not actionable harassment.” (Dickson, supra, 234
Cal.App.4th at p. 1317.)
• “In accordance with . . . the fundamental public policy of eliminating
discrimination in the workplace under the FEHA, we conclude that retaliation is
a form of discrimination actionable under [Gov. Code] section 12940,
subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water & Power (2006)
144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206], disapproved on other grounds
in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72
Cal.Rptr.3d 624, 177 P.3d 232].)
• “[Defendant] suggests that a separate element in CACI No. 2527 requiring
[plaintiff] to prove that the failure to prevent discrimination or retaliation was ‘a
substantial factor in causing her harm’ is equivalent to the disputed element in
the other CACI instructions requiring [plaintiff] to prove that her pregnancy-
related leave was ‘a motivating reason’ for her discharge. However, the
‘substantial factor in causing harm’ element in CACI No. 2527 does not concern
the causal relationship between the adverse employment action and the plaintiff’s
protected status or activity. Rather, it concerns the causal relationship between
the discriminatory or retaliatory conduct, if proven, and the plaintiff’s injury.”
(Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466,
480 [161 Cal.Rptr.3d 758].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025,
1026
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment and Housing Act, ¶¶ 7:670–7:672 (The Rutter
Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)
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2528. Failure to Prevent Harassment by Nonemployee (Gov. Code,
§ 12940(j))
[Name of plaintiff] claims that [name of defendant] failed to take
reasonable steps to prevent harassment based on [his/her/nonbinary
pronoun] [describe protected status, e.g., race, gender, or age] by a
nonemployee. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/was an unpaid [intern/
volunteer] for [name of defendant]/was a person providing services
under a contract with [name of defendant]];
2. That while in the course of employment, [name of plaintiff] was
subjected to harassment based on [his/her/nonbinary pronoun]
[e.g., race] by [name], who was not an employee of [name of
defendant];
3. That [name of defendant] knew or should have known that the
nonemployee’s conduct placed employees at risk of harassment;
4. That [name of defendant] failed to take immediate and appropriate
[preventive/corrective] action;
5. That the ability to take [preventive/corrective] action was within
the control of [name of defendant];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s failure to take immediate and
appropriate steps to [prevent/put an end to] the harassment was a
substantial factor in causing [name of plaintiff]’s harm.
New November 2018; Revised January 2019
Directions for Use
Give this instruction on a claim against the employer for failure to prevent
harassment by a nonemployee. The FEHA protects not only employees, but also
applicants, unpaid interns or volunteers, and persons providing services under a
contract (element 1). (Gov. Code, § 12940(j)(1).) Modify references to employment
in elements 2 and 3 as necessary if the plaintiff’s status is other than an employee.
Note that unlike claims for failure to prevent acts of a co-employee (see Gov. Code,
§ 12940(k)), only harassment is covered. (Gov. Code, § 12940(j)(1).) If there is such
a thing as discrimination or retaliation by a nonemployee, there is no employer duty
to prevent it under the FEHA.
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The employer’s duty is to “take immediate and appropriate corrective action.” (Gov.
Code § 12940(j)(1).) In contrast, for the employer’s failure to prevent acts of an
employee, the duty is to “take all reasonable steps necessary to prevent
discrimination and harassment from occurring.” (Gov. Code, § 12940(k).)
Whether the employer must prevent or later correct the harassing situation would
seem to depend on the facts of the case. If the issue is to stop harassment from
recurring after becoming aware of it, the employer’s duty would be to “correct” the
problem. If the issue is to address a developing problem before the harassment
occurs, the duty would be to “prevent” it. Choose the appropriate words in elements
4, 5, and 7 depending on the facts.
Sources and Authority
• Prevention of Harassment by a Nonemployee. Government Code section
12940(j)(1).
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The FEHA provides: ‘An employer may . . . be responsible for the acts of
nonemployees, with respect to sexual harassment of employees . . . , where the
employer, or its agents or supervisors, knows or should have known of the
conduct and fails to take immediate and appropriate corrective action. In
reviewing cases involving the acts of nonemployees, the extent of the employer’s
control and any other legal responsibility that the employer may have with
respect to the conduct of those nonemployees shall be considered.’ . . . ’ A
plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff
first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel Management
LLC (2017) 16 Cal.App.5th 693, 700-701 [224 Cal.Rptr.3d 542].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
corrective action that is reasonably calculated to (1) end the current harassment
and (2) to deter future harassment. [Citation.] The employer’s obligation to take
prompt corrective action requires (1) that temporary steps be taken to deal with
the situation while the employer determines whether the complaint is justified
and (2) that permanent remedial steps be implemented by the employer to
prevent future harassment . . . .” (M.F., supra, 16 Cal.App.5th at p. 701.)
• “[T]he language of section 12940, subdivision (j)(1), does not limit its
application to a particular fact pattern. Rather, the language of the statute
provides for liability whenever an employer (1) knows or should know of sexual
harassment by a nonemployee and (2) fails to take immediate and appropriate
remedial action (3) within its control. (M.F., supra, 16 Cal.App.5th at p. 702.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take
immediate and appropriate corrective action’ is a question of fact.” (M.F., supra,
16 Cal.App.5th at p. 703, internal citation omitted.)
• “The more egregious the abuse and the more serious the threat of which the
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employer has notice, the more the employer will be required under a standard of
reasonable care to take steps for the protection of likely future victims.” (M.F.,
supra, 16 Cal.App.5th at p. 701.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1019,
1028, 1035
2529–2539. Reserved for Future Use
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2540. Disability Discrimination—Disparate Treatment—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun] based on
[his/her/nonbinary pronoun] [history of [a]] [select term to describe basis of
limitations, e.g., physical condition]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [name of defendant] knew that [name of plaintiff] had [a
history of having] [a] [e.g., physical condition] [that limited [insert
major life activity]];
4. That [name of plaintiff] was able to perform the essential job
duties of [his/her/nonbinary pronoun] [current position/the position
for which [he/she/nonbinary pronoun] applied], either with or
without reasonable accommodation for [his/her/nonbinary
pronoun] [e.g., condition];
5. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
5. [or]
5. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
5. [or]
5. [That [name of plaintiff] was constructively discharged;]
6. That [name of plaintiff]’s [history of [a]] [e.g., physical condition]
was a substantial motivating reason for [name of defendant]’s
[decision to [discharge/refuse to hire/[other adverse employment
action]] [name of plaintiff]/conduct];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[Name of plaintiff] does not need to prove that [name of defendant] held
any ill will or animosity toward [him/her/nonbinary pronoun] personally
because [he/she/nonbinary pronoun] was [perceived to be] disabled. [On
the other hand, if you find that [name of defendant] did hold ill will or
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animosity toward [name of plaintiff] because [he/she/nonbinary pronoun]
was [perceived to be] disabled, you may consider this fact, along with all
the other evidence, in determining whether [name of plaintiff]’s [history
of [a]] [e.g., physical condition] was a substantial motivating reason for
[name of defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct].]
New September 2003; Revised June 2006, December 2007, April 2009, December
2009, June 2010, June 2012, June 2013, December 2014, December 2016, May
2019, May 2020
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
In the introductory paragraph and in elements 3 and 6, select the bracketed language
on “history” of disability if the claim of discrimination is based on a history of
disability rather than a current actual disability.
For element 1, the court may need to instruct the jury on the statutory definition of
“employer” under the FEHA. Other covered entities under the FEHA include labor
organizations, employment agencies, and apprenticeship training programs. (See
Gov. Code, § 12940(a)–(d).)
This instruction is for use by both an employee and a job applicant. Select the
appropriate options in elements 2, 5, and 6 depending on the plaintiff’s status.
Modify elements 3 and 6 if the plaintiff was not actually disabled or had a history
of disability, but alleges discrimination because the plaintiff was perceived to be
disabled. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].) This can be done with language in element 3 that the employer “treated
[name of plaintiff] as if [he/she/nonbinary pronoun] . . .” and with language in
element 6 “That [name of employer]’s belief that . . . .”
If the plaintiff alleges discrimination on the basis of the plaintiff’s association with
someone who was or was perceived to be disabled, give CACI No. 2547, Disability-
Based Associational Discrimination—Essential Factual Elements. (See Rope v. Auto-
Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 655–660 [163
Cal.Rptr.3d 392] [claim for “disability based associational discrimination”
adequately pled].)
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in element 3. (Compare
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Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement that medical
condition limit major life activity].)
Regarding element 4, it is now settled that the ability to perform the essential duties
of the job, with or without reasonable accommodation, is an element of the
plaintiff’s burden of proof. (See Green v. State of California (2007) 42 Cal.4th 254,
257–258 [64 Cal.Rptr.3d 390, 165 P.3d 118].)
Read the first option for element 5 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 5 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
6 if either the second or third option is included for element 5.
Element 6 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Give the optional sentence in the last paragraph if there is evidence that the
defendant harbored personal animus against the plaintiff because of the plaintiff’s
disability.
If the existence of a qualifying disability is disputed, additional instructions defining
“physical disability,” “mental disability,” and “medical condition” may be required.
(See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Inability to Perform Essential Job Duties. Government Code section 12940(a)(1).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Perception of Disability and Association With Disabled Person Protected.
Government Code section 12926(o).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “[T]he plaintiff initially has the burden to establish a prima facie case of
discrimination. The plaintiff can meet this burden by presenting evidence that
demonstrates, even circumstantially or by inference, that he or she (1) suffered
from a disability, or was regarded as suffering from a disability; (2) could
perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action
because of the disability or perceived disability. To establish a prima facie case,
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a plaintiff must show ‘ “ ‘ “actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that such
actions were based on a [prohibited] discriminatory criterion . . . .” ’ ” . . .’ The
prima facie burden is light; the evidence necessary to sustain the burden is
minimal. As noted above, while the elements of a plaintiff’s prima facie case can
vary considerably, generally an employee need only offer sufficient
circumstantial evidence to give rise to a reasonable inference of discrimination.”
(Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310 [115 Cal.Rptr.3d
453], original italics, internal citations omitted.)
• “The distinction between cases involving direct evidence of the employer’s
motive for the adverse employment action and cases where there is only
circumstantial evidence of the employer’s discriminatory motive is critical to the
outcome of this appeal. There is a vast body of case law that addresses proving
discriminatory intent in cases where there was no direct evidence that the
adverse employment action taken by the employer was motivated by race,
religion, national origin, age or sex. In such cases, proof of discriminatory
motive is governed by the three-stage burden-shifting test established by the
United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668].” (Wallace v. County of Stanislaus
(2016) 245 Cal.App.4th 109, 123 [199 Cal.Rptr.3d 462], original italics, footnote
and internal citations omitted.)
• “The three-stage framework and the many principles adopted to guide its
application do not apply in discrimination cases where, like here, the plaintiff
presents direct evidence of the employer’s motivation for the adverse
employment action. In many types of discrimination cases, courts state that
direct evidence of intentional discrimination is rare, but disability discrimination
cases often involve direct evidence of the role of the employee’s actual or
perceived disability in the employer’s decision to implement an adverse
employment action. Instead of litigating the employer’s reasons for the action,
the parties’ disputes in disability cases focus on whether the employee was able
to perform essential job functions, whether there were reasonable
accommodations that would have allowed the employee to perform those
functions, and whether a reasonable accommodation would have imposed an
undue hardship on the employer. To summarize, courts and practitioners should
not automatically apply principles related to the McDonnell Douglas test to
disability discrimination cases. Rather, they should examine the critical threshold
issue and determine whether there is direct evidence that the motive for the
employer’s conduct was related to the employee’s physical or mental condition.”
(Wallace, supra, 245 Cal.App.4th at p. 123, original italics, footnote and internal
citations omitted; cf. Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 234 fn. 3 [206 Cal.Rptr.3d 841] [case did not present so-called
“typical” disability discrimination case, as described in Wallace, in that the
parties disputed the employer’s reasons for terminating plaintiff’s employment].)
• “If the employee meets this [prima facie] burden, it is then incumbent on the
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employer to show that it had a legitimate, nondiscriminatory reason for its
employment decision. When this showing is made, the burden shifts back to the
employee to produce substantial evidence that employer’s given reason was
either ‘untrue or pretextual,’ or that the employer acted with discriminatory
animus, in order to raise an inference of discrimination.” (Furtado v. State
Personnel Bd. (2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292], internal
citations omitted.)
• “Although the same statutory language that prohibits disability discrimination
also prohibits discrimination based on race, age, sex, and other factors, we
conclude that disability discrimination claims are fundamentally different from
the discrimination claims based on the other factors listed in section 12940,
subdivision (a). These differences arise because (1) additional statutory
provisions apply to disability discrimination claims, (2) the Legislature made
separate findings and declarations about protections given to disabled persons,
and (3) discrimination cases involving race, religion, national origin, age and
sex, often involve pretexts for the adverse employment action—an issue about
motivation that appears less frequently in disability discrimination cases.”
(Wallace, supra, 245 Cal.App.4th at p. 122.)
• “[Defendant] argues that, because [it] hired plaintiffs as recruit officers, they
must show they were able to perform the essential functions of a police recruit
in order to be qualified individuals entitled to protection under FEHA.
[Defendant] argues that plaintiffs cannot satisfy their burden of proof under
FEHA because they failed to show that they could perform those essential
functions. [¶] Plaintiffs do not directly respond to [defendant]’s argument.
Instead, they contend that the relevant question is whether they could perform
the essential functions of the positions to which they sought reassignment.
Plaintiffs’ argument improperly conflates the legal standards for their claim under
section 12940, subdivision (a), for discrimination, and their claim under section
12940, subdivision (m), for failure to make reasonable accommodation, including
reassignment. In connection with a discrimination claim under section 12940,
subdivision (a), the court considers whether a plaintiff could perform the
essential functions of the job held—or for job applicants, the job desired—with
or without reasonable accommodation.” (Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 716–717 [214 Cal.Rptr.3d 113].)
• “Summary adjudication of the section 12940(a) claim . . . turns on . . . whether
[plaintiff] could perform the essential functions of the relevant job with or
without accommodation. [Plaintiff] does not dispute that she was unable to
perform the essential functions of her former position as a clothes fitter with or
without accommodation. Under federal law, however, when an employee seeks
accommodation by being reassigned to a vacant position in the company, the
employee satisfies the ‘qualified individual with a disability’ requirement by
showing he or she can perform the essential functions of the vacant position
with or without accommodation. The position must exist and be vacant, and the
employer need not promote the disabled employee. We apply the same rule here.
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To prevail on summary adjudication of the section 12940(a) claim, [defendant]
must show there is no triable issue of fact about [plaintiff]’s ability, with or
without accommodation, to perform the essential functions of an available vacant
position that would not be a promotion.” (Nadaf-Rahrov v. The Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 965 [83 Cal.Rptr.3d 190], original
italics, internal citations omitted.)
• “To establish a prima facie case of mental disability discrimination under FEHA,
a plaintiff must show the following elements: (1) She suffers from a mental
disability; (2) she is otherwise qualified to do the job with or without reasonable
accommodation; and (3) she was subjected to an adverse employment action
because of the disability.” (Higgins-Williams v. Sutter Medical Foundation
(2015) 237 Cal.App.4th 78, 84 [187 Cal.Rptr.3d 745].)
• “At most, [plaintiff] alleges only that he anticipated becoming disabled for some
time after the organ donation. This is insufficient. [Plaintiff] cannot pursue a
cause of action for discrimination under FEHA on the basis of his ‘actual’
physical disability in the absence of factual allegations that he was in fact,
physically disabled.” (Rope, supra, 220 Cal.App.4th at p. 659.)
• “[Defendant] asserts the statute’s ‘regarded as’ protection is limited to persons
who are denied or who lose jobs based on an employer’s reliance on the ‘myths,
fears or stereotypes’ frequently associated with disabilities. . . . However, the
statutory language does not expressly restrict FEHA’s protections to the narrow
class to whom [defendant] would limit its coverage. To impose such a restriction
would exclude from protection a large group of individuals, like [plaintiff], with
more mundane long-term medical conditions, the significance of which is
exacerbated by an employer’s failure to reasonably accommodate. Both the
policy and language of the statute offer protection to a person who is not
actually disabled, but is wrongly perceived to be. The statute’s plain language
leads to the conclusion that the ‘regarded as’ definition casts a broader net and
protects any individual ‘regarded’ or ‘treated’ by an employer ‘as having, or
having had, any physical condition that makes achievement of a major life
activity difficult’ or may do so in the future. We agree most individuals who sue
exclusively under this definitional prong likely are and will continue to be
victims of an employer’s ‘mistaken’ perception, based on an unfounded fear or
stereotypical assumption. Nevertheless, FEHA’s protection is nowhere expressly
premised on such a factual showing, and we decline the invitation to import such
a requirement.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 53
[43 Cal.Rptr.3d 874], original italics, internal citations omitted.)
• “[T]he purpose of the ‘regarded-as’ prong is to protect individuals rejected from
a job because of the ‘myths, fears and stereotypes’ associated with disabilities. In
other words, to find a perceived disability, the perception must stem from a false
idea about the existence of or the limiting effect of a disability.” (Diffey v.
Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031, 1037 [101
Cal.Rptr.2d 353], internal citation omitted.)
• “We say on this record that [defendant] took action against [plaintiff] based on
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concerns or fear about his possible future disability. The relevant FEHA
definition of an individual regarded as disabled applies only to those who suffer
certain specified physical disabilities or those who have a condition with ‘no
present disabling effect’ but which ‘may become a physical disability . . . .’
According to the pleadings, [defendant] fired [plaintiff] to avoid accommodating
him because of his association with his physically disabled sister. That is not a
basis for liability under the ‘regarded as’ disabled standard.” (Rope, supra, 220
Cal.App.4th at p. 659, internal citations omitted.)
• “ ‘[A]n employer “knows an employee has a disability when the employee tells
the employer about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by observation. The
employer need only know the underlying facts, not the legal significance of
those facts.” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th
570, 592 [210 Cal.Rptr.3d 59].)
• “ ‘An adverse employment decision cannot be made “because of” a disability,
when the disability is not known to the employer. Thus, in order to prove [a
discrimination] claim, a plaintiff must prove the employer had knowledge of the
employee’s disability when the adverse employment decision was made. . . .
While knowledge of the disability can be inferred from the circumstances,
knowledge will only be imputed to the employer when the fact of disability is
the only reasonable interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient to put an
employer on notice of its obligations . . . .” . . .’ ” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1008 [93 Cal.Rptr.3d 338].)
• “[W]e interpret FEHA as authorizing an employer to distinguish between
disability-caused misconduct and the disability itself in the narrow context of
threats or violence against coworkers. If employers are not permitted to make
this distinction, they are caught on the horns of a dilemma. They may not
discriminate against an employee based on a disability but, at the same time,
must provide all employees with a safe work environment free from threats and
violence.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 166 [125
Cal.Rptr.3d 1], internal citations omitted.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
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even by itself determinative of an employment decision without also being a ‘but
for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “We note that the court in Harris discussed the employer’s motivation and the
link between the employer’s consideration of the plaintiff’s physical condition
and the adverse employment action without using the terms ‘animus,’
‘animosity,’ or ‘ill will.’ The absence of a discussion of these terms necessarily
implies an employer can violate section 12940, subdivision (a) by taking an
adverse employment action against an employee “because of” the employee’s
physical disability even if the employer harbored no animosity or ill will against
the employee or the class of persons with that disability.” (Wallace, supra, 245
Cal.App.4th at p. 128.)
• Based on Harris, we conclude that an employer has treated an employee
differently ‘because of’ a disability when the disability is a substantial
motivating reason for the employer’s decision to subject the [employee] to an
adverse employment action. This conclusion resolves how the jury should have
been instructed on [defendant]’s motivation or intent in connection with the
disability discrimination claim.” (Wallace, supra, 245 Cal.App.4th at p. 128.)
• “We conclude that where, as here, an employee is found to be able to safely
perform the essential duties of the job, a plaintiff alleging disability
discrimination can establish the requisite employer intent to discriminate by
proving (1) the employer knew that plaintiff had a physical condition that limited
a major life activity, or perceived him to have such a condition, and (2) the
plaintiff’s actual or perceived physical condition was a substantial motivating
reason for the defendant’s decision to subject the plaintiff to an adverse
employment action. . . . [T]his conclusion is based on (1) the interpretation of
section 12940’s term ‘because of’ adopted in Harris; (2) our discussion of the
meaning of the statutory phrase ‘to discriminate against’; and (3) the guidance
provided by the current versions of CACI Nos. 2540 and 2507. [¶] Therefore,
the jury instruction that [plaintiff] was required to prove that [defendant]
‘regarded or treated [him] as having a disability in order to discriminate’ was
erroneous.” (Wallace, supra, 245 Cal.App.4th at p. 129.)
• “The word ‘animus’ is ambiguous because it can be interpreted narrowly to
mean ‘ill will’ or ‘animosity’ or can be interpreted broadly to mean ‘intention.’
In this case, it appears [defendant] uses ‘animus’ to mean something more than
the intent described by the substantial-motivating-reason test adopted in Harris.”
(Wallace, supra, 245 Cal.App.4th at p. 130, fn. 14, internal citation omitted.)
• “ ‘[W]eight may qualify as a protected “handicap” or “disability” within the
meaning of the FEHA if medical evidence demonstrates that it results from a
physiological condition affecting one or more of the basic bodily systems and
limits a major life activity.’ . . . ‘[A]n individual who asserts a violation of the
FEHA on the basis of his or her weight must adduce evidence of a
physiological, systemic basis for the condition.’ ” (Cornell v. Berkeley Tennis
Club (2017) 18 Cal.App.5th 908, 928 [227 Cal.Rptr.3d 286].)
• “Being unable to work during pregnancy is a disability for the purposes of
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section 12940.” (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340
[153 Cal.Rptr.3d 367].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1045–1049
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2160–9:2241 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.78–2.80
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.32[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.14, 115.23, 115.34, 115.77[3][a] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:46 (Thomson Reuters)
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2541. Disability Discrimination—Reasonable
Accommodation—Essential Factual Elements (Gov. Code,
§ 12940(m))
[Name of plaintiff] claims that [name of defendant] failed to reasonably
accommodate [his/her/nonbinary pronoun] [select term to describe basis of
limitations, e.g., physical condition]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [[name of plaintiff] had/[name of defendant] treated [name of
plaintiff] as if [he/she/nonbinary pronoun] had] [a] [e.g., physical
condition] [that limited [insert major life activity]];
[4. That [name of defendant] knew of [name of plaintiff]’s [e.g., physical
condition] [that limited [insert major life activity]];]
5. That [name of plaintiff] was able to perform the essential duties of
[[his/her/nonbinary pronoun] current position or a vacant
alternative position to which [he/she/nonbinary pronoun] could
have been reassigned/the position for which [he/she/nonbinary
pronoun] applied] with reasonable accommodation for [his/her/
nonbinary pronoun] [e.g., physical condition];
6. That [name of defendant] failed to provide reasonable
accommodation for [name of plaintiff]’s [e.g., physical condition];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s failure to provide reasonable
accommodation was a substantial factor in causing [name of
plaintiff]’s harm.
[In determining whether [name of plaintiff]’s [e.g., physical condition]
limits [insert major life activity], you must consider the [e.g., physical
condition] [in its unmedicated state/without assistive devices/[describe
mitigating measures]].]
New September 2003; Revised April 2007, December 2007, April 2009, December
2009, June 2010, December 2011, June 2012, June 2013, May 2019
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
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may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
For element 1, the court may need to instruct the jury on the statutory definition of
“employer” under the FEHA. Other covered entities under the FEHA include labor
organizations, employment agencies, and apprenticeship training programs. (See
Gov. Code, § 12940(a)–(d).)
This instruction is for use by both an employee and a job applicant. Select the
appropriate options in elements 2 and 5 depending on the plaintiff’s status.
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in elements 3 and 4 and do
not include the last paragraph. (Compare Gov. Code, § 12926(i) with Gov. Code,
§ 12926(j), (m) [no requirement that medical condition limit major life activity].)
In a case of perceived disability, include “[name of defendant] treated [name of
plaintiff] as if [he/she/nonbinary pronoun] had” in element 3, and delete optional
element 4. (See Gov. Code, § 12926(j)(4), (m)(4) [mental and physical disability
include being regarded or treated as disabled by the employer].) In a case of actual
disability, include “[name of plaintiff] had” in element 3, and give element 4.
If the existence of a qualifying disability is disputed, additional instructions defining
“physical disability,” “mental disability,” and “medical condition” may be required.
(See Gov. Code, § 12926(i), (j), (m).)
The California Supreme Court has held that under Government Code section
12940(a), the plaintiff is required to prove that the plaintiff has the ability to
perform the essential duties of the job with or without reasonable accommodation.
(See Green v. State of California (2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390,
165 P.3d 118].) While the court left open the question of whether the same rule
should apply to cases under Government Code section 12940(m) (see id. at p. 265),
appellate courts have subsequently placed the burden on the employee to prove that
the employee would be able to perform the job duties with reasonable
accommodation (see element 5). (See Cuiellette v. City of Los Angeles (2011) 194
Cal.App.4th 757, 766 [123 Cal.Rptr.3d 562]; Nadaf-Rahrov v. The Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 973–979 [83 Cal.Rptr.3d 190].)
There may still be an unresolved issue if the employee claims that the employer
failed to provide the employee with other suitable job positions that the employee
might be able to perform with reasonable accommodation. The rule has been that
the employer has an affirmative duty to make known to the employee other suitable
job opportunities and to determine whether the employee is interested in, and
qualified for, those positions, if the employer can do so without undue hardship or if
the employer offers similar assistance or benefit to other disabled or nondisabled
employees or has a policy of offering such assistance or benefit to any other
employees. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951
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[62 Cal.Rptr.2d 142]; see also Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 745 [151 Cal.Rptr.3d 292]; Claudio v. Regents of the University of
California (2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837]; Hanson v. Lucky
Stores (1999) 74 Cal.App.4th 215, 226 [87 Cal.Rptr.2d 487].) In contrast, other
courts have said that it is the employee’s burden to prove that a reasonable
accommodation could have been made, i.e., that the employee was qualified for a
position in light of the potential accommodation. (See Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 978; see also Cuiellette, supra, 194 Cal.App.4th at p. 767 [plaintiff
proves the plaintiff is a qualified individual by establishing that the plaintiff can
perform the essential functions of the position to which reassignment is sought].)
The question of whether the employee has to present evidence of other suitable job
descriptions and prove that a vacancy existed for a position that the employee could
do with reasonable accommodation may not be fully resolved.
No element has been included that requires the plaintiff to specifically request
reasonable accommodation. Unlike Government Code section 12940(n) on the
interactive process (see CACI No. 2546, Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process), section 12940(m) does
not specifically require that the employee request reasonable accommodation; it
requires only that the employer know of the disability. (See Prilliman, supra, 53
Cal.App.4th at pp. 950–951.)
Sources and Authority
• Reasonable Accommodation Required. Government Code section 12940(m).
• “Reasonable Accommodation” Explained. Government Code section 12926(p).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “There are three elements to a failure to accommodate action: ‘(1) the plaintiff
has a disability covered by the FEHA; (2) the plaintiff is a qualified individual
(i.e., he or she can perform the essential functions of the position); and (3) the
employer failed to reasonably accommodate the plaintiff’s disability.
[Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22
Cal.App.5th 1187, 1193–1194 [232 Cal.Rptr.3d 349].)
• “Under the FEHA, ‘reasonable accommodation’ means ‘a modification or
adjustment to the workplace that enables the employee to perform the essential
functions of the job held or desired.’ ” (Cuiellette, supra, 194 Cal.App.4th at p.
766.)
• “Reasonable accommodations include ‘[j]ob restructuring, part-time or modified
work schedules, reassignment to a vacant position, . . . and other similar
accommodations for individuals with disabilities.’ ” (Swanson v. Morongo
Unified School Dist. (2014) 232 Cal.App.4th 954, 969 [181 Cal.Rptr.3d 553],
original italics.)
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• “The examples of reasonable accommodations in the relevant statutes and
regulations include reallocating nonessential functions or modifying how or
when an employee performs an essential function, but not eliminating essential
functions altogether. FEHA does not obligate the employer to accommodate the
employee by excusing him or her from the performance of essential functions.”
(Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375 [184
Cal.Rptr.3d 9].)
• “A term of leave from work can be a reasonable accommodation under FEHA,
and, therefore, a request for leave can be considered to be a request for
accommodation under FEHA.” (Moore v. Regents of University of California
(2016) 248 Cal.App.4th 216, 243 [206 Cal.Rptr.3d 841], internal citation
omitted.)
• “Failure to accommodate claims are not subject to the McDonnell Douglas
burden-shifting framework.” (Cornell v. Berkeley Tennis Club (2017) 18
Cal.App.5th 908, 926 [227 Cal.Rptr.3d 286].)
• “The question now arises whether it is the employees’ burden to prove that a
reasonable accommodation could have been made, i.e., that they were qualified
for a position in light of the potential accommodation, or the employers’ burden
to prove that no reasonable accommodation was available, i.e., that the
employees were not qualified for any position because no reasonable
accommodation was available. [¶¶] Applying Green’s burden of proof analysis to
section 12940(m), we conclude that the burden of proving ability to perform the
essential functions of a job with accommodation should be placed on the
plaintiff under this statute as well. First, . . . an employee’s ability to perform
the essential functions of a job is a prerequisite to liability under section
12940(m). Second, the Legislature modeled section 12940(m) on the federal
reasonable accommodation requirement (adopting almost verbatim the federal
statutory definition of ‘reasonable accommodation’ by way of example). Had the
Legislature intended the employer to bear the burden of proving ability to
perform the essential functions of the job, contrary to the federal allocation of
the burden of proof, . . . it could have expressly provided for that result, but it
did not. Finally, general evidentiary principles support allocating the burden of
proof on this issue to the plaintiff.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at
pp. 977–978, internal citations omitted.)
• “ ‘If the employee cannot be accommodated in his or her existing position and
the requested accommodation is reassignment, an employer must make
affirmative efforts to determine whether a position is available. [Citation.] A
reassignment, however, is not required if “there is no vacant position for which
the employee is qualified.” [Citations.] “The responsibility to reassign a disabled
employee who cannot otherwise be accommodated does ‘not require creating a
new job, moving another employee, promoting the disabled employee or
violating another employee’s rights . . . .” ’ [Citations.] “What is required is the
‘duty to reassign a disabled employee if an already funded, vacant position at the
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same level exists.’ [Citations.]” [Citations.]’ ” (Furtado, supra, 212 Cal.App.4th
at p. 745.)
• “[A]n employee’s probationary status does not, in and of itself, deprive an
employee of the protections of FEHA, including a reasonable reassignment. The
statute does not distinguish between the types of reasonable accommodations an
employer may have to provide to employees on probation or in training and
those an employer may have to provide to other employees. We decline to read
into FEHA a limitation on an employee’s eligibility for reassignment based on
an employee’s training or probationary status. Instead, the trier of fact should
consider whether an employee is on probation or in training in determining
whether a particular reassignment is comparable in pay and status to the
employee’s original position.” (Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 724 [214 Cal.Rptr.3d 113], internal citations omitted.)
• “[A] disabled employee seeking reassignment to a vacant position ‘is entitled to
preferential consideration.’ ” (Swanson, supra, 232 Cal.App.4th at p. 970.)
• “ ‘Generally, “ ‘[t]he employee bears the burden of giving the employer notice of
the disability.’ ” ’ An employer, in other words, has no affirmative duty to
investigate whether an employee’s illness might qualify as a disability. ‘ “ ‘[T]he
employee can’t expect the employer to read his mind and know he secretly
wanted a particular accommodation and sue the employer for not providing it.
Nor is an employer ordinarily liable for failing to accommodate a disability of
which it had no knowledge.’ ” ’ ” (Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167 [217 Cal.Rptr.3d
258], internal citations omitted.)
• “ ‘[A]n employer “knows an employee has a disability when the employee tells
the employer about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by
observation.” ’ . . . [¶] ‘While knowledge of the disability can be inferred from
the circumstances, knowledge will only be imputed to the employer when the
fact of disability is the only reasonable interpretation of the known facts. “Vague
or conclusory statements revealing an unspecified incapacity are not sufficient to
put an employer on notice of its obligations under the [FEHA].” ’ ”
(Featherstone, supra, 10 Cal.App.5th at p. 1167, internal citations omitted.)
• “In other words, so long as the employer is aware of the employee’s condition,
there is no requirement that the employer be aware that the condition is
considered a disability under the FEHA. By the same token, it is insufficient to
tell the employer merely that one is disabled or requires an accommodation.”
(Cornell, supra, 18 Cal.App.5th at p. 938, internal citation omitted.)
• “ ‘ “ ‘This notice then triggers the employer’s burden to take “positive steps” to
accommodate the employee’s limitations. . . . [¶] . . . The employee, of course,
retains a duty to cooperate with the employer’s efforts by explaining [his or her]
disability and qualifications. [Citation.] Reasonable accommodation thus
envisions an exchange between employer and employee where each seeks and
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shares information to achieve the best match between the [employee’s]
capabilities and available positions.’ ” ’ ” (Soria v. Univision Radio Los Angeles,
Inc. (2016) 5 Cal.App.5th 570, 598 [210 Cal.Rptr.3d 59].)
• “Employers must make reasonable accommodations to the disability of an
individual unless the employer can demonstrate that doing so would impose an
‘undue hardship.’ ” (Prilliman, supra, 53 Cal.App.4th at p. 947.)
• “ ‘Ordinarily, the reasonableness of an accommodation is an issue for the jury.’ ”
(Prilliman, supra, 53 Cal.App.4th at p. 954, internal citation omitted.)
• “[T]he duty of an employer to provide reasonable accommodation for an
employee with a disability is broader under the FEHA than under the ADA.”
(Bagatti, supra, 97 Cal.App.4th at p. 362.)
• “[A]n employer is relieved of the duty to reassign a disabled employee whose
limitations cannot be reasonably accommodated in his or her current job only if
reassignment would impose an ‘undue hardship’ on its operations . . . .” (Atkins,
supra, 8 Cal.App.5th at p. 721.)
• “The question whether plaintiffs could perform the essential functions of a
position to which they sought reassignment is relevant to a claim for failure to
accommodate under section 12940, subdivision (m) . . . .” (Atkins, supra, 8
Cal.App.5th at p. 717.)
• “On these issues, which are novel to California and on which the federal courts
are divided, we conclude that employers must reasonably accommodate
individuals falling within any of FEHA’s statutorily defined ‘disabilities,’
including those ‘regarded as’ disabled, and must engage in an informal,
interactive process to determine any effective accommodations.” (Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 55 [43 Cal.Rptr.3d 874].)
• “While a claim of failure to accommodate is independent of a cause of action
for failure to engage in an interactive dialogue, each necessarily implicates the
other.” (Moore, supra, 248 Cal.App.4th at p. 242.)
• “[A] pretextual termination of a perceived-as-disabled employee’s employment in
lieu of providing reasonable accommodation or engaging in the interactive
process does not provide an employer a reprieve from claims for failure to
accommodate and failure to engage in the interactive process.” (Moore, supra,
248 Cal.App.4th at p. 244.)
• “Appellant also stated a viable claim under section 12940, subdivision (m),
which mandates that an employer provide reasonable accommodations for the
known physical disability of an employee. She alleged that she was unable to
work during her pregnancy, that she was denied reasonable accommodations for
her pregnancy-related disability and terminated, and that the requested
accommodations would not have imposed an undue hardship on [defendant]. A
finite leave of greater than four months may be a reasonable accommodation for
a known disability under the FEHA.” (Sanchez v. Swissport, Inc. (2013) 213
Cal.App.4th 1331, 1341 [153 Cal.Rptr.3d 367].)
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• “To the extent [plaintiff] claims the [defendant] had a duty to await a vacant
position to arise, he is incorrect. A finite leave of absence may be a reasonable
accommodation to allow an employee time to recover, but FEHA does not
require the employer to provide an indefinite leave of absence to await possible
future vacancies.” (Nealy, supra, 234 Cal.App.4th at pp. 377–378.)
• “While ‘a finite leave can be a reasonable accommodation under FEHA,
provided it is likely that at the end of the leave, the employee would be able to
perform . . . her duties’, a finite leave is not a reasonable accommodation when
the leave leads directly to termination of employment because the employee’s
performance could not be evaluated while she was on the leave.” (Hernandez,
supra, 22 Cal.App.5th at p. 1194.)
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 977
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250–9:2285, 9:2345–9:2347 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.32[2][c], 41.51[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35, 115.92 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)
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2542. Disability Discrimination—“Reasonable Accommodation”
Explained
A reasonable accommodation is a reasonable change to the workplace
that [choose one or more of the following]
[gives a qualified applicant with a disability an equal opportunity in
the job application process;]
[allows an employee with a disability to perform the essential duties
of the job;] [or]
[allows an employee with a disability to enjoy the same benefits and
privileges of employment that are available to employees without
disabilities.]
Reasonable accommodations may include the following:
a. Making the workplace readily accessible to and usable by
employees with disabilities;
b. Changing job responsibilities or work schedules;
c. Reassigning the employee to a vacant position;
d. Modifying or providing equipment or devices;
e. Modifying tests or training materials;
f. Providing qualified interpreters or readers; or
g. Providing other similar accommodations for an individual with a
disability.
If more than one accommodation is reasonable, an employer makes a
reasonable accommodation if it selects one of those accommodations in
good faith.
New September 2003; Revised April 2009, June 2012
Directions for Use
Give this instruction to explain “reasonable accommodation” as used in CACI No.
2541, Disability Discrimination—Reasonable Accommodation—Essential Factual
Elements. For discussion regarding the burden of proof on reasonable
accommodation, see the Directions for Use to CACI No. 2541.
Sources and Authority
• Employer Obligation to Make Reasonable Accommodation. Government Code
section 12940(m).
• “Reasonable Accommodation” Defined. Government Code section 12926(p).
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• “Reasonable Accommodation” Defined. Cal. Code Regs., tit. 2, § 11068(a).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “[T]he duty of an employer to provide reasonable accommodation for an
employee with a disability is broader under the FEHA than under the ADA.”
(Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 362 [118
Cal.Rptr.2d 443].)
• “[A]n employer who knows of the disability of an employee has an affirmative
duty to make known to the employee other suitable job opportunities with the
employer and to determine whether the employee is interested in, and qualified
for, those positions, if the employer can do so without undue hardship or if the
employer offers similar assistance or benefit to other disabled or nondisabled
employees or has a policy of offering such assistance or benefit to any other
employees.” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,
950–951 [62 Cal.Rptr.2d 142].)
• “The question now arises whether it is the employees’ burden to prove that a
reasonable accommodation could have been made, i.e., that they were qualified
for a position in light of the potential accommodation, or the employers’ burden
to prove that no reasonable accommodation was available, i.e., that the
employees were not qualified for any position because no reasonable
accommodation was available. [¶¶] Applying Green’s burden of proof analysis to
section 12940(m), we conclude that the burden of proving ability to perform the
essential functions of a job with accommodation should be placed on the
plaintiff under this statute as well.” (Nadaf-Rahrov v. The Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 977–978 [83 Cal.Rptr.3d 190], internal
citations omitted.)
• “Under the FEHA . . . an employer is relieved of the duty to reassign a disabled
employee whose limitations cannot be reasonably accommodated in his or her
current job only if reassignment would impose an ‘undue hardship’ on its
operations or if there is no vacant position for which the employee is qualified.”
(Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [96 Cal.Rptr.2d
236].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶ 7:213 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2091, 9:2093–9:2095, 9:2197,
9:2252, 9:2265, 9:2366 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.51[3][a], [b] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
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Discrimination, § 115.35 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)
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2543. Disability Discrimination—“Essential Job Duties” Explained
(Gov. Code, §§ 12926(f), 12940(a)(1))
In deciding whether a job duty is essential, you may consider, among
other factors, the following:
a. Whether the reason the job exists is to perform that duty;
b. Whether there is a limited number of employees available who
can perform that duty;
c. Whether the job duty is highly specialized so that the person
currently holding the position was hired for the person’s expertise
or ability to perform the particular duty.
Evidence of whether a particular duty is essential includes, but is not
limited to, the following:
a. [Name of defendant]’s judgment as to which functions are
essential;
b. Written job descriptions prepared before advertising or
interviewing applicants for the job;
c. The amount of time spent on the job performing the duty;
d. The consequences of not requiring the person currently holding
the position to perform the duty;
e. The terms of a collective bargaining agreement;
f. The work experiences of past persons holding the job;
g. The current work experience of persons holding similar jobs;
h. Reference to the importance of the job in prior performance
reviews.
“Essential job duties” do not include the marginal duties of the position.
“Marginal duties” are those that, if not performed would not eliminate
the need for the job, or those that could be readily performed by
another employee, or those that could be performed in another way.
New September 2003; Revoked June 2013; Restored and Revised December 2013;
Revised May 2020
Directions for Use
Give this instruction with CACI No. 2540, Disability Discrimination—Disparate
Treatment—Essential Factual Elements, or CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, or both,
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if it is necessary to explain what is an “essential job duty.” (See Gov. Code,
§§ 12926(f), 12940(a)(1); see also Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 743–744 [151 Cal.Rptr.3d 292].) While the employee has the
burden to prove that the employee can perform essential job duties, with or without
reasonable accommodation, it is unresolved which party has the burden of proving
that a job duty is essential. (See Lui v. City and County of San Francisco (2012)
211 Cal.App.4th 962, 972–973 [150 Cal.Rptr.3d 385].)
Sources and Authority
• Ability to Perform Essential Duties. Government Code section 12940(a)(1).
• “Essential Functions” Defined. Government Code section 12926(f).
• Evidence of Essential Functions. 2 California Code of Regulations section
11065(e)(2).
• Marginal Functions. 2 California Code of Regulations section 11065(e)(3).
• “ ‘ “Essential functions” means the fundamental job duties of the employment
position the individual with a disability holds or desires. “Essential functions”
does not include the marginal functions of the position.’ ‘ “Marginal functions”
of an employment position are those that, if not performed, would not eliminate
the need for the job or that could be readily performed by another employee or
that could be performed in an alternative way.’ ‘A job function may be
considered essential for any of several reasons, including, but not limited to, any
one or more of the following: [¶] (A) . . . [T]he reason the position exists is to
perform that function. [¶] (B) . . . [T]he limited number of employees available
among whom the performance of that job function can be distributed. [¶] [And]
(C) . . . the incumbent in the position is hired for his or her expertise or ability
to perform the particular [highly specialized] function.’ ” (Nealy v. City of Santa
Monica (2015) 234 Cal.App.4th 359, 373 [184 Cal.Rptr.3d 9], internal citations
omitted.)
• “Evidence of ‘essential functions’ may include the employer’s judgment, written
job descriptions, the amount of time spent on the job performing the function,
the consequences of not requiring employees to perform the function, the terms
of a collective bargaining agreement, the work experiences of past incumbents in
the job, and the current work experience of incumbents in similar jobs.” (Atkins
v. City of Los Angeles (2017) 8 Cal.App.5th 696, 717–718 [214 Cal.Rptr.3d
113].)
• “The trial court’s essential functions finding is also supported by the evidence
presented by defendant corresponding to the seven categories of evidence listed
in [Government Code] section 12926(f)(2). ‘Usually no one listed factor will be
dispositive . . . .’ ” (Lui, supra, 211 Cal.App.4th at p. 977.)
• “The question whether plaintiffs could perform the essential functions of a
position to which they sought reassignment is relevant to a claim for failure to
accommodate under section 12940, subdivision (m), and to a claim for failure to
engage in the interactive process under section 12940, subdivision (n).” (Atkins,
supra, 8 Cal.App.5th at p. 717.)
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• “The identification of essential job functions is a ‘highly fact-specific inquiry.’ ”
(Lui, supra, 211 Cal.App.4th at p. 971.)
• “It is clear that plaintiff bore the burden of proving ‘that he or she is a qualified
individual under the FEHA (i.e., that he or she can perform the essential
functions of the job with or without reasonable accommodation).’ It is less clear
whether that burden included the burden of proving what the essential functions
of the position are, rather than just plaintiff’s ability to perform the essential
functions. Under the ADA, a number of federal decisions have held that
‘[a]lthough the plaintiff bears the ultimate burden of persuading the fact finder
that he can perform the job’s essential functions, . . . “an employer who disputes
the plaintiff’s claim that he can perform the essential functions must put forth
evidence establishing those functions.” [Citation.]’ . . . Arguably, plaintiff’s
burden of proving he is a qualified individual includes the burden of proving
which duties are essential functions of the positions he seeks. Ultimately, we
need not and do not decide in the present case which party bore the burden of
proof on the issue at trial . . . .” (Lui, supra, 211 Cal.App.4th at pp. 972–973,
internal citations omitted.)
• “[R]equiring employers to eliminate an essential function of a job to
accommodate a disabled employee ‘would be at odds with the definition of the
employee’s prima facie case’ under FEHA. The employee’s burden includes
‘showing he or she can perform the essential functions of the job with
accommodation, not that an essential function can be eliminated altogether to
suit his or her restrictions.’ ” (Atkins, supra, 8 Cal.App.5th at p. 720.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1045–1049
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment and Housing Act (FEHA), ¶¶ 9:2247, 9:2247.1, 9:2247.2,
9:2402–9:2402.1 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.54, 115.104 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)
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2544. Disability Discrimination—Affirmative Defense—Health or
Safety Risk
[Name of defendant] claims that [his/her/nonbinary pronoun/its] conduct
was not discriminatory because, even with reasonable accommodations,
[name of plaintiff] was unable to perform at least one essential job duty
without endangering [[his/her/nonbinary pronoun] health or safety/ [or]
[the health or safety of others]. To succeed on this defense, [name of
defendant] must prove all of the following:
1. That [describe job duty] was an essential job duty;
2. That there was no reasonable accommodation that would have
allowed [name of plaintiff] to perform this job duty without
endangering [[his/her/nonbinary pronoun] health or safety/ [or]
[the health or safety of others]; and
3. That [name of plaintiff]’s performance of this job duty would
present an immediate and substantial degree of risk to [[him/her/
nonbinary pronoun]/ [or] others].
[However, it is not a defense to assert that [name of plaintiff] has a
disability with a future risk, as long as the disability does not presently
interfere with [his/her/nonbinary pronoun] ability to perform the job in a
manner that will not endanger [him/her/nonbinary pronoun]/ [or] others].]
In determining whether [name of defendant] has proved this defense,
factors that you may consider include the following:
a. The duration of the risk;
b. The nature and severity of the potential harm;
c. The likelihood that the potential harm would have occurred;
d. How imminent the potential harm was; [and]
e. Relevant information regarding [name of plaintiff]’s past work
history[;/and]
[f. [Specify other relevant factors].]
Your consideration of these factors should be based on a reasonable
medical judgment that relies on the most current medical knowledge or
on the best available objective evidence.
New September 2003; Revised May 2019, November 2019
Directions for Use
This instruction is based on the Fair Employment and Housing Council regulation
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addressing the defense of health or safety risk. (See Cal. Code Regs., tit. 2,
§ 11067.) Give CACI No. 2543, Disability Discrimination—“Essential Job Duties”
Explained, to instruct on when a job duty is essential.
If more than one essential job duty is alleged to involve a health or safety risk,
pluralize the elements accordingly.
Give the optional paragraph following the elements if there is concern about a
future risk. (See Cal. Code Regs., tit. 2, § 11067(d).)
The list of factors to be considered is not exclusive. (See Cal. Code Regs., tit. 2,
§ 11067(e).) Additional factors may be added according to the facts and
circumstances of the case.
Sources and Authority
• Risk to Health or Safety. Government Code section 12940(a)(1).
• Risk to Health or Safety. Cal. Code Regs., tit. 2, § 11067(b)–(e).
• “FEHA’s ‘danger to self’ defense has a narrow scope; an employer must offer
more than mere conclusions or speculation in order to prevail on the defense
. . . . As one court said, ‘[t]he defense requires that the employee face an
“imminent and substantial degree of risk” in performing the essential functions
of the job.’ An employer may not terminate an employee for harm that is merely
potential . . . . In addition, in cases in which the employer is able to establish
the ‘danger to self’ defense, it must also show that there are ‘no “available
reasonable means of accommodation which could, without undue hardship to
[the employer], have allowed [the plaintiff] to perform the essential job functions
. . . without danger to himself.” ’ ” (Wittkopf v. County of Los Angeles (2001)
90 Cal.App.4th 1205, 1218–1219 [109 Cal.Rptr.2d 543], internal citations
omitted.)
• “An employer may refuse to hire persons whose physical handicap prevents
them from performing their duties in a manner which does not endanger their
health. Unlike the BFOQ defense, this exception must be tailored to the
individual characteristics of each applicant . . . in relation to specific, legitimate
job requirements . . . . [Defendant’s] evidence, at best, shows a possibility
[plaintiff] might endanger his health sometime in the future. In the light of the
strong policy for providing equal employment opportunity, such conjecture will
not justify a refusal to employ a handicapped person.” (Sterling Transit Co. v.
Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798–799 [175
Cal.Rptr. 548], internal citations and footnote omitted.)
• “FEHA does not expressly address whether the act protects an employee whose
disability causes him or her to make threats against coworkers. FEHA, however,
does authorize an employer to terminate or refuse to hire an employee who
poses an actual threat of harm to others due to a disability . . . .” (Wills v.
Superior Court (2011) 195 Cal.App.4th 143, 169 [125 Cal.Rptr.3d 1] [idle
threats against coworkers do not disqualify employee from job, but rather may
provide legitimate, nondiscriminatory reason for discharging employee].)
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• “The employer has the burden of proving the defense of the threat to the health
and safety of other workers by a preponderance of the evidence.” (Raytheon Co.
v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [261
Cal.Rptr. 197].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1045–1048
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2297, 2297.1, 9:2402, 9:2402.1
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.111
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.54, 115.104 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)
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2545. Disability Discrimination—Affirmative Defense—Undue
Hardship
[Name of defendant] claims that accommodating [name of plaintiff]’s
disability would create an undue hardship to the operation of [his/her/
nonbinary pronoun/its] business. To succeed on this defense, [name of
defendant] must prove that [an] accommodation[s] would create an
undue hardship because it would be significantly difficult or expensive, in
light of the following factors:
a. The nature and cost of the accommodation[s];
b. [Name of defendant]’s ability to pay for the accommodation[s];
c. The type of operations conducted at the facility;
d. The impact on the operations of the facility;
e. The number of [name of defendant]’s employees and the
relationship of the employees’ duties to one another;
f. The number, type, and location of [name of defendant]’s facilities;
and
g. The administrative and financial relationship of the facilities to
one another.
New September 2003; Revised November 2019, May 2020
Directions for Use
The issue of whether undue hardship is a true affirmative defense or whether the
defendant only has the burden of coming forward with the evidence of hardship as a
way of negating the element of plaintiff’s case concerning the reasonableness of an
accommodation appears to be unclear. (See Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 733 [214 Cal.Rptr.3d 113].)
For an instruction in the religious creed context, see CACI No. 2561, Religious
Creed Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship.
Sources and Authority
• Employer Duty to Provide Reasonable Accommodation. Government Code
section 12940(m).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “ ‘Undue hardship’ means ‘an action requiring significant difficulty or expense,
when considered in light of the following factors: [¶] (1) The nature and cost of
the accommodation needed. [¶] (2) The overall financial resources of the
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facilities involved in the provision of the reasonable accommodations, the
number of persons employed at the facility, and the effect on expenses and
resources or the impact otherwise of these accommodations upon the operation
of the facility. [¶] (3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the number of
employees, and the number, type, and location of its facilities. [¶] (4) The type
of operations, including the composition, structure, and functions of the
workforce of the entity. [¶] (5) The geographic separateness or administrative or
fiscal relationship of the facility or facilities.’ (§ 12926, subd. (u).) ‘ “Whether a
particular accommodation will impose an undue hardship for a particular
employer is determined on a case by case basis” ’ and ‘is a multi-faceted, fact-
intensive inquiry.’ ” (Atkins, supra, 8 Cal.App.5th at p. 733.)
• “[U]nder California law and the instructions provided to the jury, an employer
must do more than simply assert that it had economic reasons to reject a
plaintiff’s proposed reassignment to demonstrate undue hardship. An employer
must show why and how asserted economic reasons would affect its ability to
provide a particular accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 734,
original italics, internal citation omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250, 9:2345, 9:2366, 9:2367 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.80
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.51[4][b] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.35, 115.54, 115.100 (Matthew Bender)
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2546. Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process (Gov.
Code, § 12940(n))
[Name of plaintiff] contends that [name of defendant] failed to engage in a
good-faith interactive process with [him/her/nonbinary pronoun] to
determine whether it would be possible to implement effective reasonable
accommodations so that [name of plaintiff] [insert job requirements
requiring accommodation]. In order to establish this claim, [name of
plaintiff] must prove the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [name of plaintiff] had [a] [select term to describe basis of
limitations, e.g., physical condition] that was known to [name of
defendant];
4. That [name of plaintiff] requested that [name of defendant] make
reasonable accommodation for [his/her/nonbinary pronoun] [e.g.,
physical condition] so that [he/she/nonbinary pronoun] would be
able to perform the essential job requirements;
5. That [name of plaintiff] was willing to participate in an interactive
process to determine whether reasonable accommodation could be
made so that [he/she/nonbinary pronoun] would be able to perform
the essential job requirements;
6. That [name of defendant] failed to participate in a timely good-
faith interactive process with [name of plaintiff] to determine
whether reasonable accommodation could be made;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s failure to engage in a good-faith
interactive process was a substantial factor in causing [name of
plaintiff]’s harm.
New December 2007; Revised April 2009, December 2009
Directions for Use
In elements 3 and 4, select a term to describe the source of the plaintiff’s
limitations. It may be a statutory term such as “physical disability,” “mental
disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a
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general term such as “condition,” “disease,” or “disorder.” Or it may be a specific
health condition such as “diabetes.”
Modify elements 3 and 4, as necessary, if the employer perceives the employee to
have a disability. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34,
61, fn. 21 [43 Cal.Rptr.3d 874].)
In element 4, specify the position at issue and the reason why some reasonable
accommodation was needed. In element 5, you may add the specific accommodation
requested, though the focus of this cause of action is on the failure to discuss, not
the failure to provide.
For an instruction on a cause of action for failure to make reasonable
accommodation, see CACI No. 2541, Disability Discrimination—Reasonable
Accommodation—Essential Factual Elements. For an instruction defining
“reasonable accommodation,” see CACI No. 2542, Disability
Discrimination—“Reasonable Accommodation” Explained.
There is a split of authority as to whether the employee must also prove that
reasonable accommodation was possible before there is a violation for failure to
engage in the interactive process. (Compare Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1] [jury’s
finding that no reasonable accommodation was possible is not inconsistent with its
finding of liability for refusing to engage in interactive process] and Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th 224, 243 [35
Cal.Rptr.3d 837] with Nadaf-Rahrov v. The Nieman Marcus Group, Inc. (2008) 166
Cal.App.4th 952, 980–985 [83 Cal.Rptr.3d 190] [employee who brings a section
12940(n) claim bears the burden of proving a reasonable accommodation was
available before the employer can be held liable under the statute]; see also Scotch
v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018–1019 [93
Cal.Rptr.3d 338] [attempting to reconcile conflict].)
Sources and Authority
• Good-Faith Interactive Process. Government Code section 12940(n).
• Federal Interpretive Guidance Incorporated. Government Code section
12926.1(e).
• Interactive Process. The Interpretive Guidance on title I of the Americans With
Disabilities Act, title 29 Code of Federal Regulations Part 1630 Appendix.
• An employee may file a civil action based on the employer’s failure to engage in
the interactive process. (Claudio, supra, 134 Cal.App.4th at p. 243.)
• “Two principles underlie a cause of action for failure to provide a reasonable
accommodation. First, the employee must request an accommodation. Second,
the parties must engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the failure rests with
the party who failed to participate in good faith.” (Gelfo, supra, 140 Cal.App.4th
at p. 54, internal citations omitted.)
• “While a claim of failure to accommodate is independent of a cause of action
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for failure to engage in an interactive dialogue, each necessarily implicates the
other.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th
216, 242 [206 Cal.Rptr.3d 841].)
• “FEHA requires an informal process with the employee to attempt to identify
reasonable accommodations, not necessarily ritualized discussions.” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 379 [184 Cal.Rptr.3d 9].)
• “The point of the interactive process is to find reasonable accommodation for a
disabled employee, or an employee regarded as disabled by the employer, in
order to avoid the employee’s termination. Therefore, a pretextual termination of
a perceived-as-disabled employee’s employment in lieu of providing reasonable
accommodation or engaging in the interactive process does not provide an
employer a reprieve from claims for failure to accommodate and failure to
engage in the interactive process.” (Moore, supra, 248 Cal.App.4th at pp.
243–244, original italics.)
• “FEHA’s reference to a ‘known’ disability is read to mean a disability of which
the employer has become aware, whether because it is obvious, the employee
has brought it to the employer’s attention, it is based on the employer’s own
perception—mistaken or not—of the existence of a disabling condition or,
perhaps as here, the employer has come upon information indicating the
presence of a disability.” (Gelfo, supra, 140 Cal.App.4th at p. 61, fn. 21.)
• “Typically, the employee must initiate the process ‘unless the disability and
resulting limitations are obvious.’ ” (Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d
258].)
• “Once initiated, the employer has a continuous obligation to engage in the
interactive process in good faith. ‘Both employer and employee have the
obligation “to keep communications open” and neither has “a right to obstruct
the process.” [Citation.] “Each party must participate in good faith, undertake
reasonable efforts to communicate its concerns, and make available to the other
information which is available, or more accessible, to one party. Liability hinges
on the objective circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with the party who
fails to participate in good faith.” [Citation.]’ ” (Swanson v. Morongo Unified
School Dist. (2014) 232 Cal.App.4th 954, 971–972 [181 Cal.Rptr.3d 553].)
• “[Employer] asserts that, if it had a duty to engage in the interactive process, the
duty was discharged. ‘If anything,’ it argues, ‘it was [employee] who failed to
engage in a good faith interactive process.’ [Employee] counters [employer]
made up its mind before July 2002 that it would not accommodate [employee]’s
limitations, and nothing could cause it reconsider that decision. Because the
evidence is conflicting and the issue of the parties’ efforts and good faith is
factual, the claim is properly left for the jury’s consideration.” (Gelfo, supra, 140
Cal.App.4th at p. 62, fn. 23.)
• “None of the legal authorities that [defendant] cites persuades us that the
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Legislature intended that after a reasonable accommodation is granted, the
interactive process continues to apply in a failure to accommodate context. . . .
To graft an interactive process intended to apply to the determination of a
reasonable accommodation onto a situation in which an employer failed to
provide a reasonable, agreed-upon accommodation is contrary to the apparent
intent of the FEHA and would not support the public policies behind that
provision.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464 [100
Cal.Rptr.3d 449].)
• “[T]he verdicts on the reasonable accommodations issue and the interactive
process claim are not inconsistent. They involve separate causes of action and
proof of different facts. Under FEHA, an employer must engage in a good faith
interactive process with the disabled employee to explore the alternatives to
accommodate the disability. ‘An employee may file a civil action based on the
employer’s failure to engage in the interactive process.’ Failure to engage in this
process is a separate FEHA violation independent from an employer’s failure to
provide a reasonable disability accommodation, which is also a FEHA violation.
An employer may claim there were no available reasonable accommodations.
But if it did not engage in a good faith interactive process, ‘it cannot be known
whether an alternative job would have been found.’ The interactive process
determines which accommodations are required. Indeed, the interactive process
could reveal solutions that neither party envisioned.” (Wysinger, supra, 157
Cal.App.4th at pp. 424–425, internal citations omitted.)
• “We disagree . . . with Wysinger’s construction of section 12940(n). We
conclude that the availability of a reasonable accommodation (i.e., a modification
or adjustment to the workplace that enables an employee to perform the essential
functions of the position held or desired) is necessary to a section 12940(n)
claim. [¶] Applying the burden of proof analysis in Green, supra, 42 Cal.4th
254, we conclude the burden of proving the availability of a reasonable
accommodation rests on the employee.” (Nadaf-Rahrov, supra, 166 Cal.App.4th
at pp. 984–985.)
• “We synthesize Wysinger, Nadaf-Rahrov, and Claudio with our analysis of the
law as follows: To prevail on a claim under section 12940, subdivision (n) for
failure to engage in the interactive process, an employee must identify a
reasonable accommodation that would have been available at the time the
interactive process should have occurred. An employee cannot necessarily be
expected to identify and request all possible accommodations during the
interactive process itself because ‘ “ ‘[e]mployees do not have at their disposal
the extensive information concerning possible alternative positions or possible
accommodations which employers have. . . .’ ” ’ However, as the Nadaf-Rahrov
court explained, once the parties have engaged in the litigation process, to
prevail, the employee must be able to identify an available accommodation the
interactive process should have produced: ‘Section 12940[, subdivision](n),
which requires proof of failure to engage in the interactive process, is the
appropriate cause of action where the employee is unable to identify a specific,
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available reasonable accommodation while in the workplace and the employer
fails to engage in a good faith interactive process to help identify one, but the
employee is able to identify a specific, available reasonable accommodation
through the litigation process.’ ” (Scotch, supra, 173 Cal.App.4th at pp.
1018–1019.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1048
Chin, et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability
Discrimination—California Fair Employment and Housing Act (FEHA),
¶¶ 9:2280–9:2285, 9:2345–9:2347 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.51[3][b] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.35[1][a] (Matthew Bender)
1 California Civil Practice: Employment Litigation, § 2:50 (Thomson Reuters)
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2547. Disability-Based Associational Discrimination—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun] based on
[his/her/nonbinary pronoun] association with a disabled person. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [name of plaintiff] was [specify basis of association or
relationship, e.g., the brother of [name of disabled person]], who had
[a] [e.g., physical condition];
4. [That [name of disabled person]’s [e.g., physical condition] was
costly to [name of defendant] because [specify reason, e.g., [name of
disabled person] was covered under [plaintiff]’s employer-provided
health care plan];]
4. [or]
4. [That [name of defendant] feared [name of plaintiff]’s association
with [name of disabled person] because [specify, e.g., [name of
disabled person] has a disability with a genetic component and
[name of plaintiff] may develop the disability as well];]
4. [or]
4. [That [name of plaintiff] was somewhat inattentive at work
because [name of disabled person]’s [e.g., physical condition]
requires [name of plaintiff]’s attention, but not so inattentive that
to perform to [name of defendant]’s satisfaction [name of plaintiff]
would need an accommodation;]
4. [or]
4. [[Specify other basis for associational discrimination];]
5. That [name of plaintiff] was able to perform the essential job
duties;
6. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
6. [or]
6. [That [name of defendant] subjected [name of plaintiff] to an
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adverse employment action;]
6. [or]
6. [That [name of plaintiff] was constructively discharged;]
7. That [name of plaintiff]’s association with [name of disabled person]
was a substantial motivating reason for [name of defendant]’s
[decision to [discharge/refuse to hire/[other adverse employment
action]] [name of plaintiff]/conduct];
8. That [name of plaintiff] was harmed; and
9. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2014; Revised May 2017, May 2020
Directions for Use
Give this instruction if plaintiff claims that the plaintiff was subjected to an adverse
employment action because of the plaintiff’s association with a disabled person.
Discrimination based on an employee’s association with a person who is (or is
perceived to be) disabled is an unlawful employment practice under the FEHA. (See
Gov. Code, § 12926(o).)
Select a term to use throughout to describe the source of the disabled person’s
limitations. It may be a statutory term such as “physical disability,” “mental
disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a
general term such as “condition,” “disease,” or “disorder.” Or it may be a specific
health condition such as “diabetes.”
Three versions of disability-based associational discrimination have been recognized,
called “expense,” “disability by association,” and “distraction.” (See Rope v. Auto-
Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 655–660 [163
Cal.Rptr.3d 392] [claim for “disability-based associational discrimination”
adequately pled].) Element 4 sets forth options for the three versions. But the
versions are illustrative rather than exhaustive; therefore, an “other” option is
provided. (See Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2
Cal.App.5th 1028, 1042 [207 Cal.Rptr.3d 120].)
An element of a disability discrimination case is that the plaintiff must be otherwise
qualified to do the job, with or without reasonable accommodation. (Green v. State
of California (2007) 42 Cal.4th 254, 262 [64 Cal.Rptr.3d 390, 165 P.3d 118] (see
element 5).) However, the FEHA does not expressly require reasonable
accommodation for association with a disabled person. (Gov. Code, § 12940(m)
[employer must reasonably accommodate applicant or employee].) Nevertheless, one
court has suggested that such a requirement may exist, without expressly deciding
the issue. (See Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1038–1039.) A reference
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to reasonable accommodation may be added to element 5 if the court decides to
impose this requirement.
Read the first option for element 6 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 6 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
7 if either the second or third option is included for element 4.
Element 7 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; Castro-Ramirez, supra, 2 Cal.App.5th at p.
1037; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)
If the existence of the associate’s disability is disputed, additional instructions
defining “medical condition,” “mental disability,” and “physical disability,” may be
required. (See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Association With Disabled Person Protected. Government Code section
12926(o).
• “ ‘Three types of situation are, we believe, within the intended scope of the
rarely litigated . . . association section. We’ll call them “expense,” “disability by
association,” and “distraction.” They can be illustrated as follows: an employee
is fired (or suffers some other adverse personnel action) because (1) (“expense”)
his spouse has a disability that is costly to the employer because the spouse is
covered by the company’s health plan; (2a) (“disability by association”) the
employee’s homosexual companion is infected with HIV and the employer fears
that the employee may also have become infected, through sexual contact with
the companion; (2b) (another example of disability by association) one of the
employee’s blood relatives has a disabling ailment that has a genetic component
and the employee is likely to develop the disability as well (maybe the relative
is an identical twin); (3) (“distraction”) the employee is somewhat inattentive at
work because his spouse or child has a disability that requires his attention, yet
not so inattentive that to perform to his employer’s satisfaction he would need an
accommodation, perhaps by being allowed to work shorter hours.’ ” (Rope,
supra, 220 Cal.App.4th at p. 657.)
• “We agree with Rope [supra] that Larimer [Larimer v. International Business
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Machines Corp. (7th Cir. 2004) 370 F.3d 698] provides an illustrative, rather
than an exhaustive, list of the kinds of circumstances in which we might find
associational disability discrimination. The common thread among the Larimer
categories is simply that they are instances in which the ‘employer has a motive
to discriminate against a nondisabled employee who is merely associated with a
disabled person.’ As we discuss above, this is an element of a plaintiff’s prima
facie case—that the plaintiff’s association with a disabled person was a
substantial motivating factor for the employer’s adverse employment action.
Rope held the alleged facts in that case could give rise to an inference of such
discriminatory motive. Our facts do not fit neatly within one of the Larimer
categories either, but a jury could reasonably infer the requisite discriminatory
motive.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1042, internal citation
omitted.)
• “ ‘[A]n employer who discriminates against an employee because of the latter’s
association with a disabled person is liable even if the motivation is purely
monetary. But if the disability plays no role in the employer’s decision . . . then
there is no disability discrimination.’ ” (Rope, supra, 220 Cal.App.4th at p. 658,
original italics.)
• “A prima facie case of disability discrimination under FEHA requires a showing
that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise
qualified to do his or her job, with or without reasonable accommodation, and
(3) the plaintiff was subjected to adverse employment action because of the
disability. Adapting this [disability discrimination] framework to the associational
discrimination context, the ‘disability’ from which the plaintiff suffers is his or
her association with a disabled person. . . . [T]he disability must be a substantial
factor motivating the employer’s adverse employment action.” (Castro-Ramirez,
supra, 2 Cal.App.5th at p. 1037.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a ‘but
for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “[W]hen section 12940, subdivision (m) requires employers to reasonably
accommodate ‘the known physical . . . disability of an applicant or employee,’
read in conjunction with other relevant provisions, subdivision (m) may
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reasonably be interpreted to require accommodation based on the employee’s
association with a physically disabled person.” (Castro-Ramirez, supra, 2
Cal.App.5th at pp. 1038–1039.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1045,
1046, 1049
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2213–9:2215 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.32[2] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.14, 115.23, 115.34 (Matthew Bender)
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2548. Disability Discrimination—Refusal to Make Reasonable
Accommodation in Housing (Gov. Code, § 12927(c)(1))
[Name of plaintiff] claims that [name of defendant] refused to reasonably
accommodate [his/her/nonbinary pronoun] [select term to describe basis of
limitations, e.g., physical disability] as necessary to afford
[him/her/nonbinary pronoun] an equal opportunity to use and enjoy a
dwelling. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was the [specify defendant’s source of
authority to provide housing, e.g., owner] of [a/an] [specify nature of
housing at issue, e.g., apartment building];
2. That [name of plaintiff] [sought to rent/was living in/[specify other
efforts to obtain housing]] the [e.g., apartment];
3. That [name of plaintiff] had [a history of having] [a] [e.g., physical
disability] [that limited [insert major life activity]];
4. That [name of defendant] knew of, or should have known of, [name
of plaintiff]’s disability;
5. That in order to afford [name of plaintiff] an equal opportunity to
use and enjoy the [e.g., apartment], it was necessary to [specify
accommodation required];
6. That it was reasonable to [specify accommodation];
7. That [name of defendant] refused to make this accommodation.
New May 2017; Revised May 2020
Directions for Use
This instruction is for use in a case alleging discrimination in housing based on a
failure to reasonably accommodate a disability. Under the Fair Employment and
Housing Act, “discrimination” includes the refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity to
use and enjoy a dwelling. (Gov. Code, § 12927(c)(1).)
In the introductory paragraph, select a term to describe the source of the plaintiff’s
limitations. It may be a statutory term such as “physical disability,” “mental
disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a
general term such as “condition,” “disease,” or “disorder.” Or it may be a specific
health condition such as “diabetes.” Use the term in element 3.
In element 2, if the plaintiff encountered a barrier before actually submitting an
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application, such as discovering a policy that would make it impossible to live in
the unit, specify what the plaintiff did to obtain the housing.
In element 3, select the bracketed language on “history” of disability if the claim of
discrimination is based on a history of disability rather than a current actual
disability.
Modify element 3 if the plaintiff was not actually disabled or had a history of
disability, but alleges denial of accommodation because the plaintiff was perceived
to be disabled or associated with someone who has, or is perceived to have, a
disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].)
In element 5, explain the accommodation in rules, policies, practices that is alleged
to be needed.
Sources and Authority
• Discrimination Defined Regarding Housing Disability Accommodations.
Government Code section 12927(c)(1).
• “Disability” Defined for Housing Discrimination. Government Code section
12955.3.
• “Housing” Defined. Government Code section 12927(d).
• “ ‘FEHA in the housing area is thus intended to conform to the general
requirements of federal law in the area and may provide greater protection
against discrimination.’ In other words, the FHA provides a minimum level of
protection that FEHA may exceed. Courts often look to cases construing the
FHA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of
1990 when interpreting FEHA.” (Auburn Woods I Homeowners Assn. v. Fair
Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [18
Cal.Rptr.3d 669], internal citations omitted.)
• “[T]he basic principles applicable in employment cases should also apply in the
housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64
Cal.Rptr.2d 301].)
• “In order to establish discrimination based on a refusal to provide reasonable
accommodations, a party must establish that he or she (1) suffers from a
disability as defined in FEHA, (2) the discriminating party knew of, or should
have known of, the disability, (3) accommodation is necessary to afford an equal
opportunity to use and enjoy the dwelling, and (4) the discriminating party
refused to make this accommodation.” (Auburn Woods I Homeowners Assn.,
supra, 121 Cal.App.4th at p.1592.)
• “FEHA prohibits, as unlawful discrimination, a ‘refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity
to use and enjoy a dwelling.’ ‘In order to establish discrimination based on a
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refusal to provide reasonable accommodations, a party must establish that he or
she (1) suffers from a disability as defined in FEHA, (2) the discriminating party
knew of, or should have known of, the disability, (3) accommodation is
necessary to afford an equal opportunity to use and enjoy the dwelling, and (4)
the discriminating party refused to make this accommodation.’ ” (Roman v. BRE
Properties, Inc. (2015) 237 Cal.App.4th 1040, 1051 [188 Cal.Rptr.3d 537],
internal citation omitted.)
• “We note that, currently, section 12955.3 explicitly states that ‘disability’
includes ‘any physical or mental disability as defined in Section 12926.’ That
statute in turn defines ‘mental disability’ to include “any mental or psychological
disorder or condition . . . that limits a major life activity’, that is, ‘makes the
achievement of the major life activity difficult.’ ‘Major life activities’ is to be
broadly construed, and includes ‘physical, mental, and social activities and
working.’ ” (Auburn Woods I Homeowners Assn., supra, 121 Cal.App.4th at p.
1592, internal citations omitted.)
• “ ‘If a landlord is skeptical of a tenant’s alleged disability or the landlord’s
ability to provide an accommodation, it is incumbent upon the landlord to
request documentation or open a dialogue.’ This obligation to ‘open a dialogue’
with a party requesting a reasonable accommodation is part of an interactive
process in which each party seeks and shares information.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1598, internal citation omitted.)
• “This evidence established the requisite causal link between the [defendant]’s
no-pets policy and the interference with the [plaintiffs]’ use and enjoyment of
their condominium.” (Auburn Woods I Homeowners Assn., supra, 121
Cal.App.4th at p. 1593.)
• “When the reasons for a delay in offering a reasonable accommodation are
subject to dispute, the matter is left for the trier of fact to resolve. The
administrative law judge properly characterized this lengthy delay as a refusal to
provide reasonable accommodation.” (Auburn Woods I Homeowners Assn.,
supra, 121 Cal.App.4th at p. 1599, internal citation omitted.)
• “We reiterate that the FEHC did not rule that companion pets are always a
reasonable accommodation for individuals with mental disabilities. Each inquiry
is fact specific and requires a case-by-case determination.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1593.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice, Reasonable Accommodations Under the Fair Housing Act
(May 17, 2004), www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_
statement_ra.pdf
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1063
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
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11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing Dis-
crimination, § 117.14 (Matthew Bender)
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2549. Disability Discrimination—Refusal to Permit Reasonable
Modification to Housing Unit (Gov. Code, § 12927(c)(1))
[Name of plaintiff] claims that [name of defendant] refused to permit
reasonable modifications of [name of plaintiff]’s [specify type of housing,
e.g., apartment] necessary to afford [name of plaintiff] full enjoyment of
the premises. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] was the [specify defendant’s source of
authority to provide housing, e.g., owner] of [a/an] [e.g., apartment
building];
2. That [name of plaintiff] [sought to rent/was living in/[specify other
efforts to obtain housing]] the [e.g., apartment];
3. That [name of plaintiff] had [a history of having] [a] [select term to
describe basis of limitations, e.g., physical disability] [that limited
[insert major life activity]];
4. That [name of defendant] knew of, or should have known of, [name
of plaintiff]’s disability;
5. That in order to afford [name of plaintiff] an equal opportunity to
use and enjoy the [e.g., apartment], it was necessary to [specify
modification(s) required];
6. That it was reasonable to expect [name of defendant] to [specify
modification(s) required];
7. That [name of plaintiff] agreed to pay for [this/these]
modification[s]; [and]
8. [That [name of plaintiff] agreed that [he/she/nonbinary pronoun]
would restore the interior of the unit to the condition that existed
before the modifications, other than for reasonable wear and tear;
and]
9. That [name of defendant] refused to permit [this/these]
modification[s].
New May 2017; Revised May 2020
Directions for Use
This instruction is for use in a case alleging discrimination in housing based on a
failure to permit reasonable modifications to a living unit to accommodate a
disability. Under the Fair Employment and Housing Act, “discrimination” includes
the refusal to permit, at the expense of the disabled person, reasonable modifications
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of existing premises occupied or to be occupied by the disabled person, if the
modifications may be necessary to afford the disabled person full enjoyment of the
premises. (Gov. Code, § 12927(c)(1).)
In element 2, if the plaintiff encountered a barrier before actually submitting an
application, such as discovering a policy that would make it impossible to live in
the unit, specify what the plaintiff did to obtain the housing.
In element 3, select a term to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
In element 3, select the bracketed language on “history” of disability if the claim of
discrimination is based on a history of disability rather than a current actual
disability.
Modify element 3 if the plaintiff was not actually disabled or had a history of
disability, but alleges denial of accommodation because the plaintiff was perceived
to be disabled or associated with someone who has, or is perceived to have, a
disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].)
In element 5, specify the modifications that are alleged to be needed.
Element 7 may not apply if section 504 of the Rehabilitation Act of 1973
(applicable to federal subsidized housing) or Title II of the Americans With
Disabilities Act requires the landlord to incur the cost of reasonable modifications.
In the case of a rental, the landlord may, if it is reasonable to do so, condition
permission for a modification on the renter’s agreeing to restore the interior of the
premises to the condition that existed before the modification (other than for
reasonable wear and tear). (Gov. Code, § 12927(c)(1).) Include element 8 if the
premises to be physically altered is a rental unit, and the plaintiff agreed to
restoration. If the parties dispute whether restoration is reasonable, presumably the
defendant would have to prove reasonableness. (See Evid. Code, § 500 [party has
the burden of proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that s/he is asserting].)
Sources and Authority
• Discrimination Defined Regarding Housing Disability Accommodations.
Government Code section 12927(c)(1).
• “Disability” Defined for Housing Discrimination. Government Code section
12955.3.
• “Housing” Defined. Government Code section 12927(d).
• “ ‘FEHA in the housing area is thus intended to conform to the general
requirements of federal law in the area and may provide greater protection
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against discrimination.’ In other words, the FHA provides a minimum level of
protection that FEHA may exceed. Courts often look to cases construing the
FHA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of
1990 when interpreting FEHA.” (Auburn Woods I Homeowners Assn. v. Fair
Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [18
Cal.Rptr.3d 669], internal citations omitted.)
• “[T]he basic principles applicable in employment cases should also apply in the
housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64
Cal.Rptr.2d 301].)
• “We note that, currently, section 12955.3 explicitly states that ‘disability’
includes ‘any physical or mental disability as defined in Section 12926.’ That
statute in turn defines ‘mental disability’ to include “any mental or psychological
disorder or condition . . . that limits a major life activity’, that is, ‘makes the
achievement of the major life activity difficult.’ ‘Major life activities’ is to be
broadly construed, and includes ‘physical, mental, and social activities and
working.’ ” (Auburn Woods I Homeowners Assn., supra, 121 Cal.App.4th at p.
1592, internal citations omitted.)
• “ ‘If a landlord is skeptical of a tenant’s alleged disability or the landlord’s
ability to provide an accommodation, it is incumbent upon the landlord to
request documentation or open a dialogue.’ This obligation to ‘open a dialogue’
with a party requesting a reasonable accommodation is part of an interactive
process in which each party seeks and shares information.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1598, internal citation omitted.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice, Reasonable Modifications Under the Fair Housing Act
(March 5, 2008), www.hud.gov/sites/documents/reasonable_modifications_mar08.pdf
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1063
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing Dis-
crimination, § 117.14 (Matthew Bender)
2550–2559. Reserved for Future Use
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2560. Religious Creed Discrimination—Failure to
Accommodate—Essential Factual Elements (Gov. Code,
§ 12940(l))
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun] by failing to
reasonably accommodate [his/her/nonbinary pronoun] religious [belief/
observance]. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[other covered relationship
to defendant]];
3. That [name of plaintiff] has a sincerely held religious belief that
[describe religious belief, observance, or practice];
4. That [name of plaintiff]’s religious [belief/observance] conflicted
with a job requirement;
5. That [name of defendant] knew of the conflict between [name of
plaintiff]’s religious [belief/observance] and the job requirement;
6. [That [name of defendant] did not explore available reasonable
alternatives of accommodating [name of plaintiff], including
excusing [name of plaintiff] from duties that conflict with [name of
plaintiff]’s religious [belief/observance] or permitting those duties
to be performed at another time or by another person, or
otherwise reasonably accommodate [name of plaintiff]’s religious
[belief/observance];]
6. [or]
6. [That [name of defendant] [terminated/refused to hire] [name of
plaintiff] in order to avoid having to accommodate [name of
plaintiff]’s religious [belief/observance];]
7. That [name of plaintiff]’s failure to comply with the conflicting job
requirement was a substantial motivating reason for
7. [[name of defendant]’s decision to [discharge/refuse to hire/[specify
other adverse employment action]] [name of plaintiff];]
7. [or]
7. [[name of defendant]’s subjecting [him/her/nonbinary pronoun] to
an adverse employment action;]
7. [or]
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7. [[his/her/nonbinary pronoun] constructive discharge;]
8. That [name of plaintiff] was harmed; and
9. That [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] was a substantial
factor in causing [his/her/nonbinary pronoun] harm.
A reasonable accommodation is one that eliminates the conflict between
the religious practice and the job requirement.
If more than one accommodation is reasonable, an employer satisfies its
obligation to make a reasonable accommodation if it selects one of those
accommodations in good faith.
New September 2003; Revised June 2012, December 2012, June 2013, November
2019, May 2020
Directions for Use
If element 1 is given, the court may need to instruct the jury on the statutory
definition of “employer” under the FEHA. Other covered entities under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
Regulations provide that refusing to hire an applicant or terminating an employee in
order to avoid the need to accommodate a religious practice constitutes religious
creed discrimination. (Cal. Code Regs., tit. 2, § 11062.) Give the second option for
element 6 if the plaintiff claims that the employer terminated or refused to hire the
plaintiff to avoid a need for accommodation.
Element 7 requires that the plaintiff’s failure to comply with the conflicting job
requirement be a substantial motivating reason for the employer’s adverse action.
(See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d
392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason”
Explained.) Read the first option if there is no dispute as to whether the employer’s
acts constituted an adverse employment action. Read the second option and also
give CACI No. 2509, “Adverse Employment Action” Explained, if whether there
was an adverse employment action is a question of fact for the jury. If constructive
discharge is alleged, give the third option for element 7 and also give CACI No.
2510, “Constructive Discharge” Explained.
Federal courts construing Title VII of the Civil Rights Act of 1964 have held that
the threat of an adverse employment action is a violation if the employee acquiesces
to the threat and foregoes religious observance. (See, e.g., EEOC v. Townley
Engineering & Mfg. Co. (9th Cir.1988) 859 F.2d 610, 614 fn. 5.) While no case has
been found that construes the FEHA similarly, element 7 may be modified if the
court agrees that this rule applies. In the first option, replace “decision to” with
“threat to.” Or in the second option, “subjecting [name of plaintiff] to” may be
replaced with “threatening [name of plaintiff] with.”
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Sources and Authority
• Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l).
• Scope of Religious Protection. Government Code section 12926(p).
• Scope of Religious Protection. Cal. Code Regs., tit. 2, § 11060(b).
• Reasonable Accommodation and Undue Hardship. Cal. Code Regs., tit. 2,
§ 11062.
• “In evaluating an argument the employer failed to accommodate an employee’s
religious beliefs, the employee must establish a prima facie case that he or she
had a bona fide religious belief, of which the employer was aware, that conflicts
with an employment requirement . . . . Once the employee establishes a prima
facie case, then the employer must establish it initiated good faith efforts to
accommodate or no accommodation was possible without producing undue
hardship.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370
[58 Cal.Rptr.2d 747], internal citation omitted.)
• “Any reasonable accommodation is sufficient to meet an employer’s obligations.
However, the employer need not adopt the most reasonable accommodation nor
must the employer accept the remedy preferred by the employee. The
reasonableness of the employer’s efforts to accommodate is determined on a case
by case basis . . . . ‘[O]nce it is determined that the employer has offered a
reasonable accommodation, the employer need not show that each of the
employee’s proposed accommodations would result in undue hardship.’ ‘[W]here
the employer has already reasonably accommodated the employee’s religious
needs, the . . . inquiry [ends].’ ” (Soldinger, supra, 51 Cal.App.4th at p. 370,
internal citations omitted.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a ‘but
for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 967,
1028, 1052, 1054
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Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
California Fair Employment And Housing Act, ¶¶ 7:151, 7:215, 7:305, 7:610–7:611,
7:631–7:634, 7:641 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.52[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35[d], 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996)
Religion, pp. 219–224, 226–227; id. (2000 supp.) at pp. 100–101
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2561. Religious Creed Discrimination—Reasonable
Accommodation—Affirmative Defense—Undue Hardship (Gov.
Code, §§ 12940(l)(1), 12926(u))
[Name of defendant] claims that accommodating [name of plaintiff]’s
[religious belief/religious observance] would create an undue hardship to
the operation of [his/her/nonbinary pronoun/its] business.
To succeed on this defense, [name of defendant] must prove that [he/she/
nonbinary pronoun/it] considered reasonable alternative options for
accommodating the [religious belief/religious observance], including (1)
excusing [name of plaintiff] from duties that conflict with
[his/her/nonbinary pronoun] [religious belief/religious observance][,] [or]
(2) permitting those duties to be performed at another time or by
another person[, or (3) [specify other reasonable accommodation]].
If you decide that [name of defendant] considered but did not adopt [a]
reasonable accommodation[s], you must then decide if the
accommodation[s] would have created an undue hardship because it
would be significantly difficult or expensive, in light of the following
factors:
a. The nature and cost of the accommodation[s];
b. [Name of defendant]’s ability to pay for the accommodation[s];
c. The type of operations conducted at the facility;
d. The impact on the operations of the facility;
e. The number of [name of defendant]’s employees and the
relationship of the employees’ duties to one another;
f. The number, type, and location of [name of defendant]’s facilities;
and
g. The administrative and financial relationship of the facilities to
one another.
New September 2003; Revoked December 2012; Restored and Revised June 2013;
Revised November 2019, May 2020, May 2021
Directions for Use
For religious beliefs and observances, the statute requires the employer (or other
covered entity) to demonstrate that the employer explored certain means of
accommodating the plaintiff, including two specific possibilities: (1) excusing the
plaintiff from duties that conflict with the plaintiff’s religious belief or observance or
(2) permitting those duties to be performed at another time or by another person.
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(Gov. Code, § 12940(l)(1).) If there is evidence of another reasonable alternative
accommodation, include it as a third means of accommodating the plaintiff.
Sources and Authority
• Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l)(1).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “If the employee proves a prima facie case and the employer fails to initiate an
accommodation for the religious practices, the burden is then on the employer to
prove it will incur an undue hardship if it accommodates that belief. ‘[T]he
extent of undue hardship on the employer’s business is at issue only where the
employer claims that it is unable to offer any reasonable accommodation without
such hardship.’ . . .” (Soldinger v. Northwest Airlines, Inc. (1996) 51
Cal.App.4th 345, 371 [58 Cal.Rptr.2d 747], internal citations omitted.)
• “It would be anomalous to conclude that by ‘reasonable accommodation’
Congress meant that an employer must deny the shift and job preference of
some employees, as well as deprive them of their contractual rights, in order to
accommodate or prefer the religious needs of others, and we conclude that Title
VII does not require an employer to go that far. [¶] . . . [¶] Alternatively, the
Court of Appeals suggested that [the employer] could have replaced [plaintiff] on
his Saturday shift with other employees through the payment of premium
wages . . . . To require [the employer] to bear more than a de minimus cost . . .
is an undue hardship. Like abandonment of the seniority system, to require [the
employer] to bear additional costs when no such costs are incurred to give other
employees the days off that they want would involve unequal treatment of
employees on the basis of their religion.” (TWA v. Hardison (1977) 432 U.S. 63,
81, 84 [97 S.Ct. 2264, 53 L.Ed.2d 113], footnote omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025,
1026
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
California Fair Employment and Housing Act, ¶¶ 7:151, 7:215, 7:305, 7:610, 7:631,
7:640–7:641 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.52[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.35[2][a]–[c], 115.54, 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Religion, pp.
227–234 (2000 supp.) at pp. 100–105
2562–2569. Reserved for Future Use
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2570. Age Discrimination—Disparate Treatment—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun] because of [his/her/
nonbinary pronoun] age. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
3. [or]
3. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
3. [or]
3. [That [name of plaintiff] was constructively discharged;]
4. That [name of plaintiff] was age 40 or older at the time of the
[discharge/[other adverse employment action]];
5. That [name of plaintiff]’s age was a substantial motivating reason
for [name of defendant]’s [decision to [discharge/refuse to hire/
[other adverse employment action]] [name of plaintiff]/conduct];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2011; Revised June 2012, June 2013, May 2020
Directions for Use
Read the first option for element 3 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 3 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
5 if the either the second or third option is included for element 3.
Note that there are two causation elements. There must be a causal link between the
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discriminatory animus based on age and the adverse action (see element 5), and
there must be a causal link between the adverse action and the damage (see element
7). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81
Cal.Rptr.3d 406].)
Element 5 requires that age discrimination be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Under the McDonnell Douglas (McDonnell Douglas Corp. v. Green (1973) 411 U.S.
792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof and
producing evidence, which is used in California for disparate-treatment cases under
FEHA, the employee must first present a prima facie case of discrimination. The
burden then shifts to the employer to produce evidence of a nondiscriminatory
reason for the adverse action. At that point, the burden shifts back to the employee
to show that the employer’s stated reason was in fact a pretext for a discriminatory
act.
Whether or not the employee has met the employee’s prima facie burden, and
whether or not the employer has rebutted the employee’s prima facie showing, are
questions of law for the trial court, not questions of fact for the jury. (See Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr.2d
448].) In other words, by the time that the case is submitted to the jury, the plaintiff
has already established a prima facie case, and the employer has already proffered a
legitimate, nondiscriminatory reason for the adverse employment decision. The
McDonnell Douglas shifting burden drops from the case. The jury is left to decide
which evidence it finds more convincing, that of the employer’s discriminatory
intent or that of the employer’s age-neutral reasons for the employment decision.
(See Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1118, fn. 5 [94
Cal.Rptr.2d 579]).
Under FEHA, age-discrimination cases require the employee to show that the
employee’s job performance was satisfactory at the time of the adverse employment
action as a part of the employee’s prima facie case (see Sandell v. Taylor-Listug,
Inc. (2010) 188 Cal.App.4th 297, 321 [115 Cal.Rptr.3d 453]), even though it is the
employer’s burden to produce evidence of a nondiscriminatory reason for the action.
Poor job performance is the most common nondiscriminatory reason that an
employer advances for the action. Even though satisfactory job performance may be
an element of the employee’s prima facie case, it is not an element that the
employee must prove to the trier of fact. Under element 5 and CACI No. 2507, the
burden remains with the employee to ultimately prove that age discrimination was a
substantial motivating reason for the action. (See Muzquiz, supra, 79 Cal.App.4th at
p. 1119.)
See also the Sources and Authority to CACI No. 2500, Disparate
Treatment—Essential Factual Elements.
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CACI No. 2570 FAIR EMPLOYMENT AND HOUSING ACT
Sources and Authority
• Age Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “Age” Defined. Government Code section 12926(b).
• Disparate Treatment; Layoffs Based on Salary. Government Code section 12941.
• “In order to make out a prima facie case of age discrimination under FEHA, a
plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2)
suffered an adverse employment action; (3) was performing satisfactorily at the
time of the adverse action; and (4) suffered the adverse action under
circumstances that give rise to an inference of unlawful discrimination, i.e.,
evidence that the plaintiff was replaced by someone significantly younger than
the plaintiff.” (Sandell, supra, 188 Cal.App.4th at p. 321.)
• “In other words, ‘[b]y the time that the case is submitted to the jury, . . . the
plaintiff has already established his or her prima facie case, and the employer
has already proffered a legitimate, nondiscriminatory reason for the adverse
employment decision, leaving only the issue of the employer’s discriminatory
intent for resolution by the trier of fact. Otherwise, the case would have been
disposed of as a matter of law for the trial court. That is to say, if the plaintiff
cannot make out a prima facie case, the employer wins as a matter of law. If the
employer cannot articulate a nondiscriminatory reason for the adverse
employment decision, the plaintiff wins as a matter of law. In those instances, no
fact-finding is required, and the case will never reach a jury. [¶] In short, if and
when the case is submitted to the jury, the construct of the shifting burden
“drops from the case,” and the jury is left to decide which evidence it finds more
convincing, that of the employer’s discriminatory intent, or that of the
employer’s race or age-neutral reasons for the employment decision.’ ” (Muzquiz,
supra, 79 Cal.App.4th at p. 1118, fn. 5.)
• “Because the only issue properly before the trier of fact was whether the
[defendant]’s adverse employment decision was motivated by discrimination on
the basis of age, the shifting burdens of proof regarding appellant’s prima facie
case and the issue of legitimate nondiscriminatory grounds were actually
irrelevant.” (Muzquiz, supra, 79 Cal.App.4th at p. 1119.)
• “An employee alleging age discrimination must ultimately prove that the adverse
employment action taken was based on his or her age. Since direct evidence of
such motivation is seldom available, the courts use a system of shifting burdens
as an aid to the presentation and resolution of age discrimination cases. That
system necessarily establishes the basic framework for reviewing motions for
summary judgment in such cases.” (Hersant v. Department of Social Services
(1997) 57 Cal.App.4th 997, 1002 [67 Cal.Rptr.2d 483], internal citations
omitted.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
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liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a
“but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “While we agree that a plaintiff must demonstrate some basic level of
competence at his or her job in order to meet the requirements of a prima facie
showing, the burden-shifting framework established in McDonnell Douglas
compels the conclusion that any measurement of such competency should, to the
extent possible, be based on objective, rather than subjective, criteria. A
plaintiff’s burden in making a prima facie case of discrimination is not intended
to be ‘onerous.’ Rather, the prima facie burden exists in order to weed out
patently unmeritorious claims.” (Sandell, supra, 188 Cal.App.4th at p. 322,
internal citations omitted.)
• “A discharge is not ‘on the ground of age’ within the meaning of this prohibition
unless age is a ‘motivating factor’ in the decision. Thus, ‘ “an employer would
be entitled to judgment as a matter of law if the record conclusively revealed
some other, nondiscriminatory reason for the employer’s decision.” ’ ‘[A]n
employee claiming discrimination must offer substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the
employer engaged in intentional discrimination.’ ” (West v. Bechtel Corp. (2002)
96 Cal.App.4th 966, 978 [117 Cal.Rptr.2d 647].)
• “[D]ownsizing alone is not necessarily a sufficient explanation, under the FEHA,
for the consequent dismissal of an age-protected worker. An employer’s freedom
to consolidate or reduce its work force, and to eliminate positions in the process,
does not mean it may ‘use the occasion as a convenient opportunity to get rid of
its [older] workers.’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358
[100 Cal.Rptr.2d 352, 8 P.3d 1089].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1041–1044
Chin et al., California Practice Guide: Employment Litigation, Ch. 8-B, California
Fair Employment and Housing Act, ¶¶ 8:740, 8:800 et seq. (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
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Equal Employment Opportunity Laws, § 41.31 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.43 (Matthew Bender)
2571–2599. Reserved for Future Use
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VF-2500. Disparate Treatment (Gov. Code, § 12940(a))
We answer the questions submitted to us as follows:
1. Was [name of defendant] an [employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff]’s [protected status] a substantial motivating
reason for [name of defendant]’s [discharge/refusal to hire/[other
adverse employment action]]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s [discharge/refusal to hire/[other adverse
employment action]] a substantial factor in causing harm to [name
of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
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[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if plaintiff was not actually a member of the protected class, but
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alleges discrimination because he or she was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2501. Disparate Treatment—Affirmative Defense—Bona fide
Occupational Qualification (Gov. Code, § 12940(a))
We answer the questions submitted to us as follows:
1. Was [name of defendant] an [employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff]’s [protected status] a substantial motivating
reason for [name of defendant]’s [discharge/refusal to hire/[other
adverse employment action]]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the job requirement regarding [protected status] reasonably
necessary for the operation of [name of defendant]’s business?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, skip questions 6, 7, and 8, and answer question 9.
6. Did [name of defendant] have a reasonable basis for believing that
substantially all [members of protected group] are unable to safely
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and efficiently perform that job?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip questions 7 and 8, and answer question 9.
7. Was it impossible or highly impractical for [name of defendant] to
consider whether each [applicant/employee] was able to safely
and efficiently perform the job?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, skip question 8 and answer question 9.
8. Was it impossible or highly impractical for [name of defendant] to
rearrange job responsibilities to avoid using [protected status] as a
job requirement?
8. Yes No
8. If your answer to question 8 is no, then answer question 9. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. Was [name of defendant]’s [discharge/refusal to hire/[other adverse
employment action]] a substantial factor in causing harm to [name
of plaintiff]?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
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[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements, and CACI No. 2501, Affırmative Defense—Bona fide
Occupational Qualification.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if the plaintiff was not actually a member of the protected class,
but alleges discrimination because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2502. Disparate Impact (Gov. Code, § 12940(a))
We answer the questions submitted to us as follows:
1. Was [name of defendant] an [employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] have [an employment practice of [describe
practice]/a selection policy of [describe policy]] that had a
disproportionate adverse effect on [describe protected group—for
example, persons over the age of 40]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Is [name of plaintiff] [protected status]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s [employment practice/selection policy] a
substantial factor in causing harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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VF-2502 FAIR EMPLOYMENT AND HOUSING ACT
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative
Defense—Business Necessity/Job Relatedness—Rebuttal to
Business Necessity/Job Relatedness Defense
We answer the questions submitted to us as follows:
1. Was [name of defendant] an [employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] have [an employment practice of [describe
practice]/a selection policy of [describe policy]] that had a
disproportionate adverse effect on [describe protected group—for
example, persons over the age of 40]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Is [name of plaintiff] [protected status]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the purpose of the [employment practice/selection policy] to
operate the business safely and efficiently?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, skip questions 6, 7, and 8, and answer question 9.
6. Did the [employment practice/selection policy] substantially
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VF-2503 FAIR EMPLOYMENT AND HOUSING ACT
accomplish this business purpose?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, skip questions 7 and 8, and answer question 9.
7. Was there an alternative [employment practice/selection policy]
that would have accomplished the business purpose equally well?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Would this alternative [employment practice/selection policy]
have had less adverse impact on [describe members of protected
group—for example, persons over the age of 40]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. Was [name of defendant]’s [employment practice/selection policy] a
substantial factor in causing harm to [name of plaintiff]?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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FAIR EMPLOYMENT AND HOUSING ACT VF-2503
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential Factual
Elements, CACI No. 2503, Affırmative Defense—Business Necessity/Job
Relatedness, and CACI No. 2504, Disparate Impact—Rebuttal to Business
Necessity/Job Relatedness Defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2504. Retaliation (Gov. Code, § 12940(h))
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [describe protected activity]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] [discharge/demote/[specify other adverse
employment action]] [name of plaintiff]?]
2. [or]
2. [Did [name of defendant] engage in conduct that, taken as a whole,
materially and adversely affected the terms and conditions of
[name of plaintiff]’s employment?]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff]’s [describe protected activity] a substantial
motivating reason for [name of defendant]’s [decision to
[discharge/demote/[specify other adverse employment action]] [name
of plaintiff]/conduct]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
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FAIR EMPLOYMENT AND HOUSING ACT VF-2504
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, August 2007, December 2010, June 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 2505, Retaliation—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Read the second option for question 2 in cases involving a pattern of employer
harassment consisting of acts that might not individually be sufficient to constitute
retaliation, but taken as a whole establish prohibited conduct. Give both options if
the employee presents evidence supporting liability under both a sufficient-single-act
theory or a pattern-of-harassment theory. Also select “conduct” in question 3 if the
second option or both options are included for question 2.
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VF-2504 FAIR EMPLOYMENT AND HOUSING ACT
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2505. Quid pro quo Sexual Harassment
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] an employee of [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of alleged harasser] make unwanted sexual advances to
[name of plaintiff] or engage in other unwanted verbal or physical
conduct of a sexual nature?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Were terms of employment, job benefits, or favorable working
conditions made contingent on [name of plaintiff]’s acceptance of
[name of alleged harasser]’s sexual advances or conduct?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. At the time of [his/her/nonbinary pronoun] conduct, was [name of
alleged harasser] a supervisor or agent for [name of defendant]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of alleged harasser]’s conduct a substantial factor in
causing harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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VF-2505 FAIR EMPLOYMENT AND HOUSING ACT
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2015,
December 2016
Directions for Use
This verdict form is based on CACI No. 2520, Quid pro quo Sexual
Harassment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question number
1, as in element 1 in CACI No. 2520.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2506A. Work Environment Harassment—Conduct Directed at
Plaintiff—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] [an employee of/an applicant for a position
with/a person providing services under a contract with/an unpaid
intern with/a volunteer with] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] subjected to harassing conduct because
[he/she/nonbinary pronoun] was [protected status, e.g., a woman]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the harassment severe or pervasive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances have considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consider the work environment to be
hostile, intimidating, offensive, oppressive, or abusive?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] know or should [he/she/nonbinary pronoun/
it/they] have known of the harassing conduct?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] fail to take immediate and appropriate
corrective action?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
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VF-2506A FAIR EMPLOYMENT AND HOUSING ACT
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2521A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521A. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
Modify question 2 if the plaintiff was not actually a member of the protected class,
but alleges harassment because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
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FAIR EMPLOYMENT AND HOUSING ACT VF-2506A
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2506B. Work Environment Harassment—Conduct Directed at
Others—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] [an employee of/an applicant for a position
with/a person providing services under a contract with/an unpaid
intern with/a volunteer with] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] personally witness harassing conduct that
took place in [his/her/nonbinary pronoun] immediate work
environment?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the harassment severe or pervasive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances have considered the
work environment to be hostile, intimidating, offensive,
oppressive, or abusive?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consider the work environment to be
hostile, intimidating, offensive, oppressive, or abusive toward [e.g.,
women]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
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FAIR EMPLOYMENT AND HOUSING ACT VF-2506B
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] know or should [he/she/nonbinary pronoun/
it/they] have known of the harassing conduct?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] fail to take immediate and appropriate
corrective action?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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VF-2506B FAIR EMPLOYMENT AND HOUSING ACT
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2521B, Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521B. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2506C. Work Environment Harassment—Sexual
Favoritism—Employer or Entity Defendant (Gov. Code, §§ 12923,
12940(j))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] [an employee of/an applicant for a position
with/a person providing services under a contract with/an unpaid
intern with/a volunteer with] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was there sexual favoritism in the work environment?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the sexual favoritism severe or pervasive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances have considered the
work environment to be hostile, intimidating, offensive,
oppressive, or abusive?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consider the work environment to be
hostile, intimidating, offensive, oppressive, or abusive because of
the sexual favoritism?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] know or should [he/she/nonbinary pronoun/
it/they] have known of the sexual favoritism?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] fail to take immediate and appropriate
corrective action?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was the sexual favoritism a substantial factor in causing harm to
[name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
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FAIR EMPLOYMENT AND HOUSING ACT VF-2506C
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2521C, Work Environment
Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521C. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2507A. Work Environment Harassment—Conduct Directed at
Plaintiff—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] [an employee of/an applicant for a position
with/a person providing services under a contract with/an unpaid
intern with/a volunteer with] [name of employer]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] subjected to harassing conduct because
[he/she/nonbinary pronoun] was [protected status, e.g., a woman]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the harassment severe or pervasive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances have considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consider the work environment to be
hostile, intimidating, offensive, oppressive, or abusive?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of defendant] [participate in/assist/ [or] encourage] the
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harassing conduct?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
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VF-2507A FAIR EMPLOYMENT AND HOUSING ACT
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2522A, Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2522A.
Modify question 2 if the plaintiff was not actually a member of the protected class,
but alleges harassment because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2507B. Work Environment Harassment—Conduct Directed at
Others—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] [an employee of/an applicant for a position
with/a person providing services under a contract with/an unpaid
intern with/a volunteer with] [name of employer]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] personally witness harassing conduct that
took place in [his/her/nonbinary pronoun] immediate work
environment?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the harassment severe or pervasive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances have considered the
work environment to be hostile, intimidating, offensive,
oppressive, or abusive?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consider the work environment to be
hostile, intimidating, offensive, oppressive, or abusive toward [e.g.,
women]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
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VF-2507B FAIR EMPLOYMENT AND HOUSING ACT
the presiding juror sign and date this form.
6. Did [name of defendant] [participate in/assist/ [or] encourage] the
harassing conduct?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2522B, Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521C, Work Environment Harassment—Sexual
Favoritism—Essential Factual Elements—Employer or Entity Defendant.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2507C. Work Environment Harassment—Sexual
Favoritism—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] [an employee of/an applicant for a position
with/a person providing services under a contract with/an unpaid
intern with/a volunteer with] [name of employer]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was there sexual favoritism in the work environment?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the sexual favoritism severe or pervasive?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Would a reasonable [describe member of protected group, e.g.,
woman] in [name of plaintiff]’s circumstances have considered the work
environment to be hostile, intimidating, offensive, oppressive, or
abusive?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] consider the work environment to be
hostile, intimidating, offensive, oppressive, or abusive because of
the sexual favoritism?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of defendant] [participate in/assist/ [or] encourage] the
sexual favoritism?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was the sexual favoritism a substantial factor in causing harm to
[name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
December 2014, December 2016, May 2020, May 2021, November 2021
Directions for Use
This verdict form is based on CACI No. 2522C, Work Environment
Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 in CACI No. 2521C. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2508. Disability Discrimination—Disparate Treatment
We answer the questions submitted to us as follows:
1. Was [name of defendant] [an employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] [know that [name of plaintiff had/treat
[name of plaintiff] as if [he/she/nonbinary pronoun] had] [a history
of having] [a] [select term to describe basis of limitations, e.g.,
physical condition] [that limited [insert major life activity]]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff] able to perform the position’s essential job
duties without an accommodation?
4. Yes No
4. If your answer to question 4 is yes, then skip question 5 and
answer question 6. If you answered no, then answer question 5.
5. Was [name of plaintiff] able to perform the position’s essential job
duties with reasonable accommodation for [his/her/nonbinary
pronoun] [e.g., condition]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of defendant] [discharge/refuse to hire/[other adverse
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VF-2508 FAIR EMPLOYMENT AND HOUSING ACT
employment action]] [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of plaintiff]’s [perceived] [history of [a]] [e.g., physical
condition] a substantial motivating reason for [name of
defendant]’s decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of defendant]’s [decision/conduct] a substantial factor
in causing harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
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[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2009, June
2010, December 2010, June 2013, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2540, Disability Discrimination—Disparate
Treatment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2540. Depending on the facts of the case, other factual
scenarios can be substituted in questions 3 and 7, as in elements 3 and 6 of the
instruction.
For question 3, select the claimed basis of discrimination: an actual disability, a
history of a disability, a perceived disability, or a perceived history of a disability.
For an actual disability, select “know that [name of plaintiff] had.” For a perceived
disability, select “treat [name of plaintiff] as if [he/she/nonbinary pronoun] had.”
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in question 3. (Compare
Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement that medical
condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
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VF-2508 FAIR EMPLOYMENT AND HOUSING ACT
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2509. Disability Discrimination—Reasonable Accommodation
(Gov. Code, § 12940(m))
We answer the questions submitted to us as follows:
1. Was [name of defendant] [an employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] have [a] [select term to describe basis of
limitations, e.g., physical condition] [that limited [insert major life
activity]]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] know of [name of plaintiff]’s [e.g., physical
condition [that limited [insert major life activity]]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff] able to perform the essential job duties
with reasonable accommodation for [his/her/nonbinary pronoun]
[e.g., physical condition]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of defendant] fail to provide reasonable accommodation
for [name of plaintiff]’s [e.g., physical condition]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s failure to provide reasonable
accommodation a substantial factor in causing harm to [name of
plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
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Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in questions 3 and 4.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement
that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2510. Disability Discrimination—Reasonable
Accommodation—Affirmative Defense—Undue Hardship (Gov.
Code, § 12940(m))
We answer the questions submitted to us as follows:
1. Was [name of defendant] [an employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] have [a] [select term to describe basis of
limitations, e.g., physical condition] [that limited [insert major life
activity]]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] know of [name of plaintiff]’s [e.g., physical
condition] [that limited [insert major life activity]]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff] able to perform the essential job duties
with reasonable accommodation for [his/her/nonbinary pronoun]
[e.g., physical condition]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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FAIR EMPLOYMENT AND HOUSING ACT VF-2510
6. Did [name of defendant] fail to provide reasonable accommodation
for [name of plaintiff]’s [e.g., physical condition]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Would [name of plaintiff]’s proposed accommodations have
created an undue hardship to the operation of [name of
defendant]’s business?
7. Yes No
7. If your answer to question 7 is no, then answer question 8. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of defendant]’s failure to provide a reasonable
accommodation a substantial factor in causing harm to [name of
plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
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pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, and
CACI No. 2545, Disability Discrimination—Affırmative Defense—Undue Hardship.
If a different affirmative defense is at issue, this form should be tailored accordingly.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in questions 3 and 4.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement
that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
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FAIR EMPLOYMENT AND HOUSING ACT VF-2510
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2511. Religious Creed Discrimination—Failure to
Accommodate (Gov. Code, § 12940(l))
We answer the questions submitted to us as follows:
1. Was [name of defendant] [an employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Does [name of plaintiff] have a sincerely held religious belief that
[describe religious belief, observance, or practice]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff]’s religious [belief/observance] conflict with
a job requirement?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] know of the conflict between [name of
plaintiff]’s religious [belief/observance] and the job requirement?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of defendant] reasonably accommodate [name of
plaintiff]’s religious [belief/observance]?
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6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of plaintiff]’s failure to comply with the conflicting job
requirement a substantial motivating reason for [name of
defendant]’s [discharge of/refusal to hire/[other adverse employment
action]] [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] a substantial
factor in causing harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
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[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2512. Religious Creed Discrimination—Failure to
Accommodate—Affirmative Defense—Undue Hardship (Gov. Code,
§§ 12926(u), 12940(l))
We answer the questions submitted to us as follows:
1. Was [name of defendant] [an employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Does [name of plaintiff] have a sincerely held religious belief that
[describe religious belief, observance, or practice]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff]’s religious [belief/observance] conflict with
a job requirement?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] know of the conflict between [name of
plaintiff]’s religious [belief/observance] and the job requirement?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of defendant] reasonably accommodate [name of
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VF-2512 FAIR EMPLOYMENT AND HOUSING ACT
plaintiff]’s religious [belief/observance]?
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did [name of defendant] explore available ways to accommodate
[name of plaintiff]’s religious [belief/observance]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, skip question 8 and answer question 9.
8. Could [name of defendant] have accommodated [name of plaintiff]’s
religious [belief/observance] without causing undue hardship to
[name of defendant]’s business?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. Was [name of plaintiff]’s failure to comply with the conflicting job
requirement a substantial motivating reason for [name of
defendant]’s [discharge of/refusal to hire/[other adverse employment
action]] [name of plaintiff]?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. Was [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] a substantial
factor in causing harm to [name of plaintiff]?
10. Yes No
10. If your answer to question 10 is yes, then answer question 11. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
11. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
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FAIR EMPLOYMENT AND HOUSING ACT VF-2512
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2012, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements (see Gov.
Code, §§ 12926(u), 12940(l)) and CACI No. 2561, Religious Creed
Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 11 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
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VF-2512 FAIR EMPLOYMENT AND HOUSING ACT
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2513. Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process (Gov.
Code, § 12940(n))
We answer the questions submitted to us as follows:
1. Was [name of defendant] [an employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] have [a] [select term to describe basis of
limitations, e.g., physical condition] [that limited [insert major life
activity]]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] request that [name of defendant] make
reasonable accommodation for [his/her/nonbinary pronoun] [e.g.,
physical condition] so that [he/she/nonbinary pronoun] would be
able to perform the essential job requirements?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff] willing to participate in an interactive
process to determine whether reasonable accommodation could be
made so that [he/she/nonbinary pronoun] would be able to perform
the essential job requirements?
5. Yes No
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5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of defendant] fail to participate in a timely, good-faith
interactive process with [name of plaintiff] to determine whether
reasonable accommodation could be made?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s failure to participate in a good-faith
interactive process a substantial factor in causing harm to [name
of plaintiff]?
7. Yes No
7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
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[d. TOTAL $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2009; Revised December 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2546, Disability
Discrimination—Reasonable Accommodation—Failure to Engage in Interactive
Process.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in question 3. (Compare
Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement that medical
condition limit major life activity].)
Do not include the transitional language following question 7 and question 8 if the
only damages claimed are also claimed under Government Code section 12940(m)
on reasonable accommodation. Use CACI No. VF-2509, Disability
Discrimination—Reasonable Accommodation, or CACI No. VF-2510, Disability
Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship, to claim these damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
There is a split of authority as to whether the employee must also prove that
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reasonable accommodation was possible before there is a violation for failure to
engage in the interactive process. (Compare Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1 [jury’s
finding that no reasonable accommodation was possible is not inconsistent with its
finding of liability for refusing to engage in interactive process] with Nadaf-Rahrov
v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980–985 [83
Cal.Rptr.3d 190] [employee who brings a section 12940(n) claim bears the burden
of proving that a reasonable accommodation was available before the employer can
be held liable under the statute].)
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2514. Failure to Prevent Harassment, Discrimination, or
Retaliation
We answer the questions submitted to us as follows:
1. Did [name of defendant] fail to take all reasonable steps to prevent
the [harassment/discrimination/retaliation]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s failure to prevent the
[harassment/discrimination/retaliation] a substantial factor in
causing harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
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[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New June 2010; Revised December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2527, Failure to Prevent Harassment,
Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity
Defendant. These questions should be added to the verdict form that addresses the
underlying claim of discrimination, retaliation, or harassment if the plaintiff also
asserts a separate claim against the employer for failure to prevent the underlying
conduct. The jury should not reach these questions unless it finds that the underlying
claim is proved.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2515. Limitation on Remedies—Same Decision
We answer the questions submitted to us as follows:
1. Was [name of defendant] an [employer/[other covered entity]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] [an employee of [name of defendant]/an
applicant to [name of defendant] for a job/[other covered
relationship to defendant]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff]’s [protected status or activity] a substantial
motivating reason for [name of defendant]’s [discharge of/refusal
to hire/[other adverse employment action]] [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [specify employer’s stated legitimate reason, e.g., plaintiff’s
poor job performance] also a substantial motivating reason for
[name of defendant]’s [discharge/refusal to hire/[other adverse
employment action]]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, skip question 6 and answer question 7.
6. Would [name of defendant] have [discharged/refused to hire/[other
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VF-2515 FAIR EMPLOYMENT AND HOUSING ACT
adverse employment action]] [name of plaintiff] anyway at that time
based on [e.g., plaintiff’s poor job performance] had [name of
defendant] not also been substantially motivated by
[discrimination/retaliation]?
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s [discharge/refusal to hire/[other adverse
employment action]] a substantial factor in causing harm to [name
of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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FAIR EMPLOYMENT AND HOUSING ACT VF-2515
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2013; Revised December 2015, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 2512, Limitation of Damages—Same
Decision. It incorporates questions from VF-2500, Disparate Treatment, and VF-
2504, Retaliation, to guide the jury through the evaluation of the employer’s
purported legitimate reason for the adverse employment action.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 5 asks the jury to determine whether the employer’s stated legitimate
reason actually was a motivating reason for the adverse action. In this way, the jury
evaluates the employer’s reason once. If it finds that it was an actual motivating
reason, it then proceeds to question 6 to consider whether the employer has proved
“same decision,” that is, that it would have taken the adverse employment action
anyway for the legitimate reason, even though it may have also had a discriminatory
or retaliatory motivation. If the jury answers “no” to question 5 it then proceeds to
consider substantial-factor causation of harm and damages in questions 7 and 8.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if the plaintiff was not actually a member of the protected class,
but alleges discrimination because the plaintiff was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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VF-2515 FAIR EMPLOYMENT AND HOUSING ACT
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2516–VF-2599. Reserved for Future Use
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Copyright Judicial Council of California
Judicial Council of California
Civil Jury Instructions
CACI*
* Pronounced “Casey”
As approved at the
Judicial Council’s Rules Committee October 2021 Meeting
and Judicial Council November 2021 Meeting
2
Judicial Council of California
Series 2600–5000
Judicial Council of California
Advisory Committee on Civil Jury Instructions
Hon. Martin J. Tangeman, Chair
LexisNexis Matthew Bender
Official Publisher
Copyright Judicial Council of California
QUESTIONS ABOUT THIS PUBLICATION?
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ISSN: 1549-7100
ISBN: 978-1-6633-0050-8 (print)
© 2021 by the Judicial Council of California. All rights reserved. No copyright is claimed by the Judicial Council of
California to the Table of Contents, Life Expectancy Tables, Table of Statutes, Table of Cases, Index, or the Tables of
Related Instructions.
© 2021, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, Secondary
Sources, User’s Guide, Life Expectancy Tables, or Disposition Table.
CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2022 edition)
Cite these instructions: “CACI No. .”
Cite these verdict forms: “CACI No. VF- .”
Editorial Office
230 Park Ave., 7th Floor, New York, NY 10169 (800) 543-6862
www.lexisnexis.com
(12/2021–Pub.1283)
Copyright Judicial Council of California
Table of Contents
Volume 1
USER GUIDE
SERIES 100 PRETRIAL
SERIES 200 EVIDENCE
SERIES 300 CONTRACTS
SERIES 400 NEGLIGENCE
SERIES 500 MEDICAL NEGLIGENCE
SERIES 600 PROFESSIONAL NEGLIGENCE
SERIES 700 MOTOR VEHICLES AND HIGHWAY SAFETY
SERIES 800 RAILROAD CROSSINGS
SERIES 900 COMMON CARRIERS
SERIES 1000 PREMISES LIABILITY
SERIES 1100 DANGEROUS CONDITION OF PUBLIC PROPERTY
SERIES 1200 PRODUCTS LIABILITY
SERIES 1300 ASSAULT AND BATTERY
SERIES 1400 FALSE IMPRISONMENT
SERIES 1500 MALICIOUS PROSECUTION
SERIES 1600 EMOTIONAL DISTRESS
SERIES 1700 DEFAMATION
SERIES 1800 RIGHT OF PRIVACY
SERIES 1900 FRAUD OR DECEIT
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SERIES 2000 TRESPASS
SERIES 2100 CONVERSION
SERIES 2200 ECONOMIC INTERFERENCE
SERIES 2300 INSURANCE LITIGATION
SERIES 2400 WRONGFUL TERMINATION
SERIES 2500 FAIR EMPLOYMENT AND HOUSING ACT
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Volume 2
SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT
SERIES 2700 LABOR CODE ACTIONS
SERIES 2800 WORKERS’ COMPENSATION
SERIES 2900 FEDERAL EMPLOYERS’ LIABILITY ACT
SERIES 3000 CIVIL RIGHTS
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTEC-
TION ACT
SERIES 3200 SONG-BEVERLY CONSUMER WARRANTY ACT
SERIES 3300 UNFAIR PRACTICES ACT
SERIES 3400 CARTWRIGHT ACT
SERIES 3500 EMINENT DOMAIN
SERIES 3600 CONSPIRACY
SERIES 3700 VICARIOUS RESPONSIBILITY
SERIES 3800 EQUITABLE INDEMNITY
SERIES 3900 DAMAGES
SERIES 4000 LANTERMAN-PETRIS-SHORT ACT
SERIES 4100 BREACH OF FIDUCIARY DUTY
SERIES 4200 UNIFORM VOIDABLE TRANSACTIONS ACT
SERIES 4300 UNLAWFUL DETAINER
SERIES 4400 TRADE SECRETS
SERIES 4500 CONSTRUCTION LAW
SERIES 4600 WHISTLEBLOWER PROTECTION
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SERIES 4700 CONSUMERS LEGAL REMEDIES ACT
SERIES 4800 CALIFORNIA FALSE CLAIMS ACT
SERIES 4900 REAL PROPERTY LAW
SERIES 5000 CONCLUDING INSTRUCTIONS
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
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USER GUIDE
SERIES 100 PRETRIAL
100. Preliminary Admonitions
101. Overview of Trial
102. Taking Notes During the Trial
103. Multiple Parties
104. Nonperson Party
105. Insurance
106. Evidence
107. Witnesses
108. Duty to Abide by Translation Provided in Court
109. Removal of Claims or Parties
110. Service Provider for Juror With Disability
111. Instruction to Alternate Jurors
112. Questions From Jurors
113. Bias
114. Bench Conferences and Conferences in Chambers
115. “Class Action” Defined (Plaintiff Class)
116. Why Electronic Communications and Research Are Prohibited
117. Wealth of Parties
118. Personal Pronouns
119–199. Reserved for Future Use
SERIES 200 EVIDENCE
200. Obligation to Prove—More Likely True Than Not True
201. Highly Probable—Clear and Convincing Proof
202. Direct and Indirect Evidence
203. Party Having Power to Produce Better Evidence
204. Willful Suppression of Evidence
205. Failure to Explain or Deny Evidence
206. Evidence Admitted for Limited Purpose
207. Evidence Applicable to One Party
208. Deposition as Substantive Evidence
209. Use of Interrogatories of a Party
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210. Requests for Admissions
211. Prior Conviction of a Felony
212. Statements of a Party Opponent
213. Adoptive Admissions
214. Reserved for Future Use
215. Exercise of a Communication Privilege
216. Exercise of Right Not to Incriminate Oneself (Evid. Code, § 913)
217. Evidence of Settlement
218. Statements Made to Physician (Previously Existing Condition)
219. Expert Witness Testimony
220. Experts—Questions Containing Assumed Facts
221. Conflicting Expert Testimony
222. Evidence of Sliding-Scale Settlement
223. Opinion Testimony of Lay Witness
224. Testimony of Child
225–299. Reserved for Future Use
SERIES 300 CONTRACTS
300. Breach of Contract—Introduction
301. Third-Party Beneficiary
302. Contract Formation—Essential Factual Elements
303. Breach of Contract—Essential Factual Elements
304. Oral or Written Contract Terms
305. Implied-in-Fact Contract
306. Unformalized Agreement
307. Contract Formation—Offer
308. Contract Formation—Revocation of Offer
309. Contract Formation—Acceptance
310. Contract Formation—Acceptance by Silence
311. Contract Formation—Rejection of Offer
312. Substantial Performance
313. Modification
314. Interpretation—Disputed Words
315. Interpretation—Meaning of Ordinary Words
316. Interpretation—Meaning of Technical Words
317. Interpretation—Construction of Contract as a Whole
318. Interpretation—Construction by Conduct
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319. Interpretation—Reasonable Time
320. Interpretation—Construction Against Drafter
321. Existence of Condition Precedent Disputed
322. Occurrence of Agreed Condition Precedent
323. Waiver of Condition Precedent
324. Anticipatory Breach
325. Breach of Implied Covenant of Good Faith and Fair Dealing—Essential Factual
Elements
326. Assignment Contested
327. Assignment Not Contested
328. Breach of Implied Duty to Perform With Reasonable Care—Essential Factual Elements
329. Reserved for Future Use
330. Affirmative Defense—Unilateral Mistake of Fact
331. Affirmative Defense—Bilateral Mistake
332. Affirmative Defense—Duress
333. Affirmative Defense—Economic Duress
334. Affirmative Defense—Undue Influence
335. Affirmative Defense—Fraud
336. Affirmative Defense—Waiver
337. Affirmative Defense—Novation
338. Affirmative Defense—Statute of Limitations
339–349. Reserved for Future Use
350. Introduction to Contract Damages
351. Special Damages
352. Loss of Profits—No Profits Earned
353. Loss of Profits—Some Profits Earned
354. Owner’s/Lessee’s Damages for Breach of Contract to Construct Improvements on Real
Property
355. Obligation to Pay Money Only
356. Buyer’s Damages for Breach of Contract for Sale of Real Property (Civ. Code, § 3306)
357. Seller’s Damages for Breach of Contract to Purchase Real Property
358. Mitigation of Damages
359. Present Cash Value of Future Damages
360. Nominal Damages
361. Reliance Damages
362–369. Reserved for Future Use
370. Common Count: Money Had and Received
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371. Common Count: Goods and Services Rendered
372. Common Count: Open Book Account
373. Common Count: Account Stated
374. Common Count: Mistaken Receipt
375. Restitution From Transferee Based on Quasi-Contract or Unjust Enrichment
376–379. Reserved for Future Use
380. Agreement Formalized by Electronic Means—Uniform Electronic Transactions Act
(Civ. Code, § 1633.1 et seq.)
381–399. Reserved for Future Use
VF-300. Breach of Contract
VF-301. Breach of Contract—Affirmative Defense—Unilateral Mistake of Fact
VF-302. Breach of Contract—Affirmative Defense—Duress
VF-303. Breach of Contract—Contract Formation at Issue
VF-304. Breach of Implied Covenant of Good Faith and Fair Dealing
VF-305–VF-399. Reserved for Future Use
SERIES 400 NEGLIGENCE
400. Negligence—Essential Factual Elements
401. Basic Standard of Care
402. Standard of Care for Minors
403. Standard of Care for Physically Disabled Person
404. Intoxication
405. Comparative Fault of Plaintiff
406. Apportionment of Responsibility
407. Comparative Fault of Decedent
408–410. Reserved for Future Use
411. Reliance on Good Conduct of Others
412. Duty of Care Owed Children
413. Custom or Practice
414. Amount of Caution Required in Dangerous Situations
415. Employee Required to Work in Dangerous Situations
416. Amount of Caution Required in Transmitting Electric Power
417. Special Doctrines: Res ipsa loquitur
418. Presumption of Negligence per se
419. Presumption of Negligence per se (Causation Only at Issue)
420. Negligence per se: Rebuttal of the Presumption of Negligence—Violation Excused
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421. Negligence per se: Rebuttal of the Presumption of Negligence (Violation of Minor
Excused)
422. Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof. Code,
§ 25602.1)
423. Public Entity Liability for Failure to Perform Mandatory Duty
424. Negligence Not Contested—Essential Factual Elements
425. “Gross Negligence” Explained
426. Negligent Hiring, Supervision, or Retention of Employee
427. Furnishing Alcoholic Beverages to Minors (Civ. Code, § 1714(d))
428. Parental Liability (Nonstatutory)
429. Negligent Sexual Transmission of Disease
430. Causation: Substantial Factor
431. Causation: Multiple Causes
432. Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act as Superseding Cause
434. Alternative Causation
435. Causation for Asbestos-Related Cancer Claims
436–439. Reserved for Future Use
440. Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other
Seizure─Essential Factual Elements
441. Negligent Use of Deadly Force by Peace Officer—Essential Factual Elements
442–449. Reserved for Future Use
450A. Good Samaritan—Nonemergency
450B. Good Samaritan—Scene of Emergency
450C. Negligent Undertaking
451. Affirmative Defense—Contractual Assumption of Risk
452. Sudden Emergency
453. Injury Incurred in Course of Rescue
454. Affirmative Defense—Statute of Limitations
455. Statute of Limitations—Delayed Discovery
456. Defendant Estopped From Asserting Statute of Limitations Defense
457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding
458–459. Reserved for Future Use
460. Strict Liability for Ultrahazardous Activities—Essential Factual Elements
461. Strict Liability for Injury Caused by Wild Animal—Essential Factual Elements
462. Strict Liability for Injury Caused by Domestic Animal With Dangerous
Propensities—Essential Factual Elements
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463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements
464–469. Reserved for Future Use
470. Primary Assumption of Risk—Exception to Nonliability—Coparticipant in Sport or
Other Recreational Activity
471. Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or
Coaches
472. Primary Assumption of Risk—Exception to Nonliability—Facilities Owners and
Operators and Event Sponsors
473. Primary Assumption of Risk—Exception to Nonliability—Occupation Involving
Inherent Risk
474–499. Reserved for Future Use
VF-400. Negligence—Single Defendant
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of Others
Not at Issue
VF-402. Negligence—Fault of Plaintiff and Others at Issue
VF-403. Primary Assumption of Risk—Liability of Coparticipant
VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches
VF-405. Primary Assumption of Risk—Liability of Facilities Owners and Operators and
Event Sponsors
VF-406. Negligence—Providing Alcoholic Beverages to Obviously Intoxicated Minor
VF-407. Strict Liability—Ultrahazardous Activities
VF-408. Strict Liability for Domestic Animal With Dangerous Propensities
VF-409. Dog Bite Statute (Civ. Code, § 3342)
VF-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation Would Not
Have Disclosed Pertinent Facts
VF-411. Parental Liability (Nonstatutory)
VF-412–VF-499. Reserved for Future Use
SERIES 500 MEDICAL NEGLIGENCE
500. Medical Negligence—Essential Factual Elements
501. Standard of Care for Health Care Professionals
502. Standard of Care for Medical Specialists
503A. Psychotherapist’s Duty to Protect Intended Victim From Patient’s Threat
503B. Affirmative Defense—Psychotherapist’s Communication of Threat to Victim and Law
Enforcement
504. Standard of Care for Nurses
505. Success Not Required
506. Alternative Methods of Care
507. Duty to Warn Patient
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508. Duty to Refer to a Specialist
509. Abandonment of Patient
510. Derivative Liability of Surgeon
511. Wrongful Birth—Sterilization/Abortion—Essential Factual Elements
512. Wrongful Birth—Essential Factual Elements
513. Wrongful Life—Essential Factual Elements
514. Duty of Hospital
515. Duty of Hospital to Provide Safe Environment
516. Duty of Hospital to Screen Medical Staff
517. Affirmative Defense—Patient’s Duty to Provide for the Patient’s Own Well-Being
518. Medical Malpractice: Res ipsa loquitur
519–530. Reserved for Future Use
530A. Medical Battery
530B. Medical Battery—Conditional Consent
531. Consent on Behalf of Another
532. Informed Consent—Definition
533. Failure to Obtain Informed Consent—Essential Factual Elements
534. Informed Refusal—Definition
535. Risks of Nontreatment—Essential Factual Elements
536–549. Reserved for Future Use
550. Affirmative Defense—Plaintiff Would Have Consented
551. Affirmative Defense—Waiver
552. Affirmative Defense—Simple Procedure
553. Affirmative Defense—Emotional State of Patient
554. Affirmative Defense—Emergency
555. Affirmative Defense—Statute of Limitations—Medical Malpractice—One-Year Limit
(Code Civ. Proc., § 340.5)
556. Affirmative Defense—Statute of Limitations—Medical Malpractice—Three-Year Limit
(Code Civ. Proc., § 340.5)
557–599. Reserved for Future Use
VF-500. Medical Negligence
VF-501. Medical Negligence—Informed Consent—Affirmative Defense—Plaintiff Would
Have Consented Even If Informed
VF-502. Medical Negligence—Informed Consent—Affirmative Defense—Emergency
VF-503–VF-599. Reserved for Future Use
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SERIES 600 PROFESSIONAL NEGLIGENCE
600. Standard of Care
601. Negligent Handling of Legal Matter
602. Success Not Required
603. Alternative Legal Decisions or Strategies
604. Referral to Legal Specialist
605. Reserved for Future Use
606. Legal Malpractice Causing Criminal Conviction—Actual Innocence
607–609. Reserved for Future Use
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit
(Code Civ. Proc., § 340.6)
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit
(Code Civ. Proc., § 340.6)
612–699. Reserved for Future Use
SERIES 700 MOTOR VEHICLES AND HIGHWAY SAFETY
700. Basic Standard of Care
701. Definition of Right-of-Way
702. Waiver of Right-of-Way
703. Definition of “Immediate Hazard”
704. Left Turns (Veh. Code, § 21801)
705. Turning (Veh. Code, § 22107)
706. Basic Speed Law (Veh. Code, § 22350)
707. Speed Limit (Veh. Code, § 22352)
708. Maximum Speed Limit (Veh. Code, §§ 22349, 22356)
709. Driving Under the Influence (Veh. Code, §§ 23152, 23153)
710. Duties of Care for Pedestrians and Drivers in Crosswalk (Veh. Code, § 21950)
711. The Passenger’s Duty of Care for Own Safety
712. Affirmative Defense—Failure to Wear a Seat Belt
713–719. Reserved for Future Use
720. Motor Vehicle Owner Liability—Permissive Use of Vehicle
721. Motor Vehicle Owner Liability—Affirmative Defense—Use Beyond Scope of
Permission
722. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
723. Liability of Cosigner of Minor’s Application for Driver’s License
724. Negligent Entrustment of Motor Vehicle
725–729. Reserved for Future Use
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730. Emergency Vehicle Exemption (Veh. Code, § 21055)
731. Definition of “Emergency” (Veh. Code, § 21055)
732–799. Reserved for Future Use
VF-700. Motor Vehicle Owner Liability—Permissive Use of Vehicle
VF-701. Motor Vehicle Owner Liability—Permissive Use of Vehicle—Affirmative
Defense—Use Beyond Scope of Permission
VF-702. Adult’s Liability for Minor’s Permissive Use of Motor Vehicle
VF-703. Liability of Cosigner of Minor’s Application for Driver’s License
VF-704. Negligent Entrustment of Motor Vehicle
VF-705–VF-799. Reserved for Future Use
SERIES 800 RAILROAD CROSSINGS
800. Basic Standard of Care for Railroads
801. Duty to Comply With Safety Regulations
802. Reserved for Future Use
803. Regulating Speed
804. Lookout for Crossing Traffic
805. Installing Warning Systems
806. Comparative Fault—Duty to Approach Crossing With Care
807–899. Reserved for Future Use
SERIES 900 COMMON CARRIERS
900. Introductory Instruction
901. Status of Common Carrier Disputed
902. Duty of Common Carrier
903. Duty to Provide and Maintain Safe Equipment
904. Duty of Common Carrier Toward Disabled/Infirm Passengers
905. Duty of Common Carrier Toward Minor Passengers
906. Duty of Passenger for Own Safety
907. Status of Passenger Disputed
908. Duty to Protect Passengers From Assault
909–999. Reserved for Future Use
SERIES 1000 PREMISES LIABILITY
1000. Premises Liability—Essential Factual Elements
1001. Basic Duty of Care
1002. Extent of Control Over Premises Area
1003. Unsafe Conditions
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1004. Obviously Unsafe Conditions
1005. Business Proprietor’s or Property Owner’s Liability for the Criminal Conduct of Others
1006. Landlord’s Duty
1007. Sidewalk Abutting Property
1008. Liability for Adjacent Altered Sidewalk—Essential Factual Elements
1009A. Liability to Employees of Independent Contractors for Unsafe Concealed Conditions
1009B. Liability to Employees of Independent Contractors for Unsafe Conditions—Retained
Control
1009C. Reserved for Future Use
1009D. Liability to Employees of Independent Contractors for Unsafe Conditions—Defective
Equipment
1010. Affirmative Defense—Recreation Immunity—Exceptions (Civ. Code, § 846)
1011. Constructive Notice Regarding Dangerous Conditions on Property
1012. Knowledge of Employee Imputed to Owner
1013–1099. Reserved for Future Use
VF-1000. Premises Liability—Comparative Negligence of Others Not at Issue
VF-1001. Premises Liability—Affirmative Defense—Recreation Immunity—Exceptions
VF-1002. Premises Liability—Comparative Fault of Plaintiff at Issue
VF-1003–VF-1099. Reserved for Future Use
SERIES 1100 DANGEROUS CONDITION OF PUBLIC PROPERTY
1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov. Code,
§ 835)
1101. Control
1102. Definition of “Dangerous Condition” (Gov. Code, § 830(a))
1103. Notice (Gov. Code, § 835.2)
1104. Inspection System (Gov. Code, § 835.2(b)(1) & (2))
1105–1109. Reserved for Future Use
1110. Affirmative Defense—Natural Conditions (Gov. Code, § 831.2)
1111. Affirmative Defense—Condition Created by Reasonable Act or Omission (Gov. Code,
§ 835.4(a))
1112. Affirmative Defense—Reasonable Act or Omission to Correct (Gov. Code, § 835.4(b))
1113–1119. Reserved for Future Use
1120. Failure to Provide Traffic Control Signals (Gov. Code, § 830.4)
1121. Failure to Provide Traffic Warning Signals, Signs, or Markings (Gov. Code, § 830.8)
1122. Affirmative Defense—Weather Conditions Affecting Streets and Highways (Gov.
Code, § 831)
1123. Affirmative Defense—Design Immunity (Gov. Code, § 830.6)
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1124. Loss of Design Immunity (Cornette)
1125. Conditions on Adjacent Property
1126–1199. Reserved for Future Use
VF-1100. Dangerous Condition of Public Property
VF-1101. Dangerous Condition of Public Property—Affirmative Defense—Reasonable Act
or Omission (Gov. Code, § 835.4)
VF-1102–VF-1199. Reserved for Future Use
SERIES 1200 PRODUCTS LIABILITY
1200. Strict Liability—Essential Factual Elements
1201. Strict Liability—Manufacturing Defect—Essential Factual Elements
1202. Strict Liability—“Manufacturing Defect” Explained
1203. Strict Liability—Design Defect—Consumer Expectation Test—Essential Factual
Elements
1204. Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements—Shifting Burden of Proof
1205. Strict Liability—Failure to Warn—Essential Factual Elements
1206. Strict Liability—Failure to Warn—Products Containing Allergens (Not Prescription
Drugs)—Essential Factual Elements
1207A. Strict Liability—Comparative Fault of Plaintiff
1207B. Strict Liability—Comparative Fault of Third Person
1208. Component Parts Rule
1209–1219. Reserved for Future Use
1220. Negligence—Essential Factual Elements
1221. Negligence—Basic Standard of Care
1222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements
1223. Negligence—Recall/Retrofit
1224. Negligence—Negligence for Product Rental/Standard of Care
1225–1229. Reserved for Future Use
1230. Express Warranty—Essential Factual Elements
1231. Implied Warranty of Merchantability—Essential Factual Elements
1232. Implied Warranty of Fitness for a Particular Purpose—Essential Factual Elements
1233. Implied Warranty of Merchantability for Food—Essential Factual Elements
1234–1239. Reserved for Future Use
1240. Affirmative Defense to Express Warranty—Not “Basis of Bargain”
1241. Affirmative Defense—Exclusion or Modification of Express Warranty
1242. Affirmative Defense—Exclusion of Implied Warranties
1243. Notification/Reasonable Time
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1244. Affirmative Defense—Sophisticated User
1245. Affirmative Defense—Product Misuse or Modification
1246. Affirmative Defense—Design Defect—Government Contractor
1247. Affirmative Defense—Failure to Warn—Government Contractor
1248. Affirmative Defense—Inherently Unsafe Consumer Product (Civ. Code, § 1714.45)
1249. Affirmative Defense—Reliance on Knowledgeable Intermediary
1250–1299. Reserved for Future Use
VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at Issue
VF-1201. Strict Products Liability—Design Defect—Affirmative Defense—Misuse or
Modification
VF-1202. Strict Products Liability—Design Defect—Risk-Benefit Test
VF-1203. Strict Products Liability—Failure to Warn
VF-1204. Products Liability—Negligence—Comparative Fault of Plaintiff at Issue
VF-1205. Products Liability—Negligent Failure to Warn
VF-1206. Products Liability—Express Warranty—Affirmative Defense—Not “Basis of
Bargain”
VF-1207. Products Liability—Implied Warranty of Merchantability—Affirmative
Defense—Exclusion of Implied Warranties
VF-1208. Products Liability—Implied Warranty of Fitness for a Particular Purpose
VF-1209–VF-1299. Reserved for Future Use
SERIES 1300 ASSAULT AND BATTERY
1300. Battery—Essential Factual Elements
1301. Assault—Essential Factual Elements
1302. Consent Explained
1303. Invalid Consent
1304. Affirmative Defense—Self-Defense/Defense of Others
1305A. Battery by Law Enforcement Officer (Nondeadly Force)—Essential Factual Elements
1305B. Battery by Peace Officer (Deadly Force)—Essential Factual Elements
1306. Sexual Battery—Essential Factual Elements
1307–1319. Reserved for Future Use
1320. Intent
1321. Transferred Intent
1322–1399. Reserved for Future Use
VF-1300. Battery
VF-1301. Battery—Self-Defense/Defense of Others at Issue
VF-1302. Assault
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VF-1303A. Battery by Law Enforcement Officer (Nondeadly Force)
VF-1303B. Battery by Peace Officer (Deadly Force)
VF-1304–VF-1399. Reserved for Future Use
SERIES 1400 FALSE IMPRISONMENT
1400. No Arrest Involved—Essential Factual Elements
1401. False Arrest Without Warrant by Peace Officer—Essential Factual Elements
1402. False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause
to Arrest
1403. False Arrest Without Warrant by Private Citizen—Essential Factual Elements
1404. False Arrest Without Warrant—Affirmative Defense—Private Citizen—Probable
Cause to Arrest
1405. False Arrest With Warrant—Essential Factual Elements
1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
1407. Unnecessary Delay in Processing/Releasing—Essential Factual Elements
1408. Affirmative Defense—Police Officer’s Lawful Authority to Detain
1409. Common Law Right to Detain for Investigation
1410–1499. Reserved for Future Use
VF-1400. False Imprisonment—No Arrest Involved
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right to Detain
for Investigation
VF-1402. False Arrest Without Warrant
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative Defense—Probable
Cause to Arrest
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative Defense—Probable
Cause to Arrest
VF-1405. False Arrest With Warrant
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
VF-1407. False Imprisonment—Unnecessary Delay in Processing/Releasing
VF-1408–VF-1499. Reserved for Future Use
SERIES 1500 MALICIOUS PROSECUTION
1500. Former Criminal Proceeding—Essential Factual Elements
1501. Wrongful Use of Civil Proceedings
1502. Wrongful Use of Administrative Proceedings
1503. Affirmative Defense—Proceeding Initiated by Public Employee Within Scope of
Employment (Gov. Code, § 821.6)
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1504. Former Criminal Proceeding—“Actively Involved” Explained
1505–1509. Reserved for Future Use
1510. Affirmative Defense—Reliance on Counsel
1511. Wrongful Use of Civil Proceedings—Affirmative Defense—Attorney’s Reliance on
Information Provided by Client
1512–1519. Reserved for Future Use
1520. Abuse of Process—Essential Factual Elements
1521–1529. Reserved for Future Use
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
1531–1599. Reserved for Future Use
VF-1500. Malicious Prosecution—Former Criminal Proceeding
VF-1501. Malicious Prosecution—Wrongful Use of Civil Proceedings
VF-1502. Malicious Prosecution—Wrongful Use of Civil Proceedings—Affirmative
Defense—Reliance on Counsel
VF-1503. Malicious Prosecution—Wrongful Use of Administrative Proceedings
VF-1504. Abuse of Process
VF-1505–VF-1599. Reserved for Future Use
SERIES 1600 EMOTIONAL DISTRESS
1600. Intentional Infliction of Emotional Distress—Essential Factual Elements
1601. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
1602. Intentional Infliction of Emotional Distress—“Outrageous Conduct” Defined
1603. Intentional Infliction of Emotional Distress—“Reckless Disregard” Defined
1604. Intentional Infliction of Emotional Distress—“Severe Emotional Distress” Defined
1605. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged Conduct
1606–1619. Reserved for Future Use
1620. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim—Essential Factual Elements
1621. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander—Essential Factual Elements
1622. Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear
of Cancer, HIV, or AIDS—Essential Factual Elements
1623. Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear
of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential
Factual Elements
1624–1699. Reserved for Future Use
VF-1600. Intentional Infliction of Emotional Distress
VF-1601. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged
Conduct
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VF-1602. Intentional Infliction of Emotional Distress—Fear of Cancer, HIV, or AIDS
VF-1603. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim
VF-1604. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander
VF-1605. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS
VF-1606. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent
Conduct
VF-1607–VF-1699. Reserved for Future Use
SERIES 1700 DEFAMATION
1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure and Limited
Public Figure)
1702. Defamation per se—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Public
Concern)
1704. Defamation per se—Essential Factual Elements (Private Figure—Matter of Private
Concern)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private
Concern)
1706. Definition of Statement
1707. Fact Versus Opinion
1708. Coerced Self-Publication
1709. Retraction: News Publication or Broadcast (Civ. Code, § 48a)
1710–1719. Reserved for Future Use
1720. Affirmative Defense—Truth
1721. Affirmative Defense—Consent
1722. Affirmative Defense—Statute of Limitations—Defamation
1723. Common Interest Privilege—Malice (Civ. Code, § 47(c))
1724. Fair and True Reporting Privilege (Civ. Code, § 47(d))
1725–1729. Reserved for Future Use
1730. Slander of Title—Essential Factual Elements
1731. Trade Libel—Essential Factual Elements
1732–1799. Reserved for Future Use
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VF-1700. Defamation per se (Public Officer/Figure and Limited Public Figure)
VF-1701. Defamation per quod (Public Officer/Figure and Limited Public Figure)
VF-1702. Defamation per se (Private Figure—Matter of Public Concern)
VF-1703. Defamation per quod (Private Figure—Matter of Public Concern)
VF-1704. Defamation per se—Affirmative Defense—Truth (Private Figure—Matter of
Private Concern)
VF-1705. Defamation per quod (Private Figure—Matter of Private Concern)
VF-1706–VF-1719. Reserved for Future Use
VF-1720. Slander of Title
VF-1721. Trade Libel
VF-1722–VF-1799. Reserved for Future Use
Table A. Defamation Per Se
Table B. Defamation Per Quod
SERIES 1800 RIGHT OF PRIVACY
1800. Intrusion Into Private Affairs
1801. Public Disclosure of Private Facts
1802. False Light
1803. Appropriation of Name or Likeness—Essential Factual Elements
1804A. Use of Name or Likeness (Civ. Code, § 3344)
1804B. Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports
Broadcast or Account, or Political Campaign (Civ. Code, § 3344(d))
1805. Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment
(Comedy III)
1806. Affirmative Defense to Invasion of Privacy—First Amendment Balancing Test—Public
Interest
1807. Affirmative Defense—Invasion of Privacy Justified
1808. Stalking (Civ. Code, § 1708.7)
1809. Recording of Confidential Information (Pen. Code, §§ 632, 637.2)
1810. Distribution of Private Sexually Explicit Materials—Essential Factual Elements (Civ.
Code, § 1708.85)
1811. Reserved for Future Use
1812. Comprehensive Computer Data and Access Fraud Act—Essential Factual Elements
(Pen. Code, § 502)
1813. Definition of “Access” (Pen. Code, § 502(b)(1))
1814. Damages for Investigating Violations of Comprehensive Computer Data and Access
Fraud Act (Pen. Code, § 502(e)(1))
1815–1819. Reserved for Future Use
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1820. Damages
1821. Damages for Use of Name or Likeness (Civ. Code § 3344(a))
1822–1899. Reserved for Future Use
VF-1800. Privacy—Intrusion Into Private Affairs
VF-1801. Privacy—Public Disclosure of Private Facts
VF-1802. Privacy—False Light
VF-1803. Privacy—Appropriation of Name or Likeness
VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344)
VF-1805–VF-1806. Reserved for Future Use
VF-1807. Privacy—Recording of Confidential Information (Pen. Code, §§ 632, 637.2)
VF-1808–VF-1899. Reserved for Future Use
SERIES 1900 FRAUD OR DECEIT
1900. Intentional Misrepresentation
1901. Concealment
1902. False Promise
1903. Negligent Misrepresentation
1904. Opinions as Statements of Fact
1905. Definition of Important Fact/Promise
1906. Misrepresentations Made to Persons Other Than the Plaintiff
1907. Reliance
1908. Reasonable Reliance
1909. Reserved for Future Use
1910. Real Estate Seller’s Nondisclosure of Material Facts
1911–1919. Reserved for Future Use
1920. Buyer’s Damages for Purchase or Acquisition of Property
1921. Buyer’s Damages for Purchase or Acquisition of Property—Lost Profits
1922. Seller’s Damages for Sale or Exchange of Property
1923. Damages—“Out of Pocket” Rule
1924. Damages—“Benefit of the Bargain” Rule
1925. Affirmative Defense—Statute of Limitations—Fraud or Mistake
1926–1999. Reserved for Future Use
VF-1900. Intentional Misrepresentation
VF-1901. Concealment
VF-1902. False Promise
VF-1903. Negligent Misrepresentation
VF-1904–VF-1999. Reserved for Future Use
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SERIES 2000 TRESPASS
2000. Trespass—Essential Factual Elements
2001. Trespass—Extrahazardous Activities
2002. Trespass to Timber—Essential Factual Elements (Civ. Code, § 3346)
2003. Damage to Timber—Willful and Malicious Conduct
2004. “Intentional Entry” Explained
2005. Affirmative Defense—Necessity
2006–2019. Reserved for Future Use
2020. Public Nuisance—Essential Factual Elements
2021. Private Nuisance—Essential Factual Elements
2022. Private Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit
2023. Failure to Abate Artificial Condition on Land Creating Nuisance
2024–2029. Reserved for Future Use
2030. Affirmative Defense—Statute of Limitations—Trespass or Private Nuisance
2031. Damages for Annoyance and Discomfort—Trespass or Nuisance
2032–2099. Reserved for Future Use
VF-2000. Trespass
VF-2001. Trespass—Affirmative Defense—Necessity
VF-2002. Trespass—Extrahazardous Activities
VF-2003. Trespass to Timber (Civ. Code, § 3346)
VF-2004. Trespass to Timber—Willful and Malicious Conduct (Civ. Code, § 3346; Code
Civ. Proc., § 733)
VF-2005. Public Nuisance
VF-2006. Private Nuisance
VF-2007–VF-2099. Reserved for Future Use
SERIES 2100 CONVERSION
2100. Conversion—Essential Factual Elements
2101. Trespass to Chattels—Essential Factual Elements
2102. Presumed Measure of Damages for Conversion (Civ. Code, § 3336)
2103–2199. Reserved for Future Use
VF-2100. Conversion
VF-2101–VF-2199. Reserved for Future Use
SERIES 2200 ECONOMIC INTERFERENCE
2200. Inducing Breach of Contract
2201. Intentional Interference With Contractual Relations—Essential Factual Elements
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2202. Intentional Interference With Prospective Economic Relations—Essential Factual
Elements
2203. Intent
2204. Negligent Interference With Prospective Economic Relations
2205. Intentional Interference With Expected Inheritance—Essential Factual Elements
2206–2209. Reserved for Future Use
2210. Affirmative Defense—Privilege to Protect Own Economic Interest
2211–2299. Reserved for Future Use
VF-2200. Inducing Breach of Contract
VF-2201. Intentional Interference With Contractual Relations
VF-2202. Intentional Interference With Prospective Economic Relations
VF-2203. Negligent Interference With Prospective Economic Relations
VF-2204–VF-2299. Reserved for Future Use
SERIES 2300 INSURANCE LITIGATION
2300. Breach of Contractual Duty to Pay a Covered Claim—Essential Factual Elements
2301. Breach of Insurance Binder—Essential Factual Elements
2302. Breach of Contract for Temporary Life Insurance—Essential Factual Elements
2303. Affirmative Defense—Insurance Policy Exclusion
2304. Exception to Insurance Policy Exclusion—Burden of Proof
2305. Lost or Destroyed Insurance Policy
2306. Covered and Excluded Risks—Predominant Cause of Loss
2307. Insurance Agency Relationship Disputed
2308. Affirmative Defense—Misrepresentation or Concealment in Insurance Application
2309. Termination of Insurance Policy for Fraudulent Claim
2310–2319. Reserved for Future Use
2320. Affirmative Defense—Failure to Provide Timely Notice
2321. Affirmative Defense—Insured’s Breach of Duty to Cooperate in Defense
2322. Affirmative Defense—Insured’s Voluntary Payment
2323–2329. Reserved for Future Use
2330. Implied Obligation of Good Faith and Fair Dealing Explained
2331. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or Delay in
Payment (First Party)—Essential Factual Elements
2332. Bad Faith (First Party)—Failure to Properly Investigate Claim—Essential Factual
Elements
2333. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights—Essential
Factual Elements
2334. Bad Faith (Third Party)—Refusal to Accept Reasonable Settlement Demand Within
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Liability Policy Limits—Essential Factual Elements
2335. Bad Faith—Advice of Counsel
2336. Bad Faith (Third Party)—Unreasonable Failure to Defend—Essential Factual Elements
2337. Factors to Consider in Evaluating Insurer’s Conduct
2338–2349. Reserved for Future Use
2350. Damages for Bad Faith
2351. Insurer’s Claim for Reimbursement of Costs of Defense of Uncovered Claims
2352–2359. Reserved for Future Use
2360. Judgment Creditor’s Action Against Insurer—Essential Factual Elements
2361. Negligent Failure to Obtain Insurance Coverage—Essential Factual Elements
2362–2399. Reserved for Future Use
VF-2300. Breach of Contractual Duty to Pay a Covered Claim
VF-2301. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or
Delay in Payment
VF-2302. Reserved for Future Use
VF-2303. Bad Faith (First Party)—Breach of Duty to Inform Insured of Rights
VF-2304–VF-2399. Reserved for Future Use
SERIES 2400 WRONGFUL TERMINATION
2400. Breach of Employment Contract—Unspecified Term—“At-Will” Presumption
2401. Breach of Employment Contract—Unspecified Term—Actual or Constructive
Discharge—Essential Factual Elements
2402. Reserved for Future Use
2403. Breach of Employment Contract—Unspecified Term—Implied-in-Fact Promise Not to
Discharge Without Good Cause
2404. Breach of Employment Contract—Unspecified Term—“Good Cause” Defined
2405. Breach of Implied Employment Contract—Unspecified Term—“Good Cause”
Defined—Misconduct
2406. Breach of Employment Contract—Unspecified Term—Damages
2407–2419. Reserved for Future Use
2420. Breach of Employment Contract—Specified Term—Essential Factual Elements
2421. Breach of Employment Contract—Specified Term—Good-Cause Defense (Lab. Code,
§ 2924)
2422. Breach of Employment Contract—Specified Term—Damages
2423. Breach of Implied Covenant of Good Faith and Fair Dealing—Employment
Contract—Essential Factual Elements
2424. Affirmative Defense—Breach of the Implied Covenant of Good Faith and Fair
Dealing—Good Faith Though Mistaken Belief
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2425–2429. Reserved for Future Use
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements
2431. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate
Public Policy
2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions That Violate Public Policy
2433–2440. Reserved for Future Use
2441. Discrimination Against Member of Military—Essential Factual Elements (Mil. & Vet.
Code, § 394)
2442–2499. Reserved for Future Use
VF-2400. Breach of Employment Contract—Unspecified Term
VF-2401. Breach of Employment Contract—Unspecified Term—Constructive Discharge
VF-2402. Breach of Employment Contract—Specified Term
VF-2403. Breach of Employment Contract—Specified Term—Good-Cause Defense
VF-2404. Employment—Breach of the Implied Covenant of Good Faith and Fair Dealing
VF-2405. Breach of the Implied Covenant of Good Faith and Fair Dealing—Affirmative
Defense—Good Faith Mistaken Belief
VF-2406. Wrongful Discharge in Violation of Public Policy
VF-2407. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate
Public Policy
VF-2408. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure
Intolerable Conditions for Improper Purpose That Violates Public Policy
VF-2409–VF-2499. Reserved for Future Use
SERIES 2500 FAIR EMPLOYMENT AND HOUSING ACT
2500. Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))
2501. Affirmative Defense—Bona fide Occupational Qualification
2502. Disparate Impact—Essential Factual Elements (Gov. Code, § 12940(a))
2503. Affirmative Defense—Business Necessity/Job Relatedness
2504. Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense
2505. Retaliation—Essential Factual Elements (Gov. Code, § 12940(h))
2506. Limitation on Remedies—After-Acquired Evidence
2507. “Substantial Motivating Reason” Explained
2508. Failure to File Timely Administrative Complaint (Gov. Code, § 12960(e))—Plaintiff
Alleges Continuing Violation
2509. “Adverse Employment Action” Explained
2510. “Constructive Discharge” Explained
2511. Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)
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2512. Limitation on Remedies—Same Decision
2513. Business Judgment
2514–2519. Reserved for Future Use
2520. Quid pro quo Sexual Harassment—Essential Factual Elements
2521A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))
2521B. Work Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))
2521C. Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))
2522A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2522B. Work Environment Harassment—Conduct Directed at Others—Essential Factual
Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2522C. Work Environment Harassment—Sexual Favoritism—Essential Factual
Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
2523. “Harassing Conduct” Explained
2524. “Severe or Pervasive” Explained
2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))
2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment by a
Supervisor)
2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual
Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))
2528. Failure to Prevent Harassment by Nonemployee (Gov. Code, § 12940(j))
2529–2539. Reserved for Future Use
2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual Elements
(Gov. Code, § 12940(m))
2542. Disability Discrimination—“Reasonable Accommodation” Explained
2543. Disability Discrimination—“Essential Job Duties” Explained (Gov. Code, §§ 12926(f),
12940(a)(1))
2544. Disability Discrimination—Affirmative Defense—Health or Safety Risk
2545. Disability Discrimination—Affirmative Defense—Undue Hardship
2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
Interactive Process (Gov. Code, § 12940(n))
2547. Disability-Based Associational Discrimination—Essential Factual Elements
2548. Disability Discrimination—Refusal to Make Reasonable Accommodation in Housing
(Gov. Code, § 12927(c)(1))
2549. Disability Discrimination—Refusal to Permit Reasonable Modification to Housing
Unit (Gov. Code, § 12927(c)(1))
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2550–2559. Reserved for Future Use
2560. Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements (Gov. Code, § 12940(l))
2561. Religious Creed Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12940(l)(1), 12926(u))
2562–2569. Reserved for Future Use
2570. Age Discrimination—Disparate Treatment—Essential Factual Elements
2571–2599. Reserved for Future Use
VF-2500. Disparate Treatment (Gov. Code, § 12940(a))
VF-2501. Disparate Treatment—Affirmative Defense—Bona fide Occupational Qualification
(Gov. Code, § 12940(a))
VF-2502. Disparate Impact (Gov. Code, § 12940(a))
VF-2503. Disparate Impact (Gov. Code, § 12940(a))—Affirmative Defense—Business
Necessity/Job Relatedness—Rebuttal to Business Necessity/Job Relatedness
Defense
VF-2504. Retaliation (Gov. Code, § 12940(h))
VF-2505. Quid pro quo Sexual Harassment
VF-2506A. Work Environment Harassment—Conduct Directed at Plaintiff—Employer or
Entity Defendant (Gov. Code, § 12940(j))
VF-2506B. Work Environment Harassment—Conduct Directed at Others—Employer or
Entity Defendant (Gov. Code, § 12940(j))
VF-2506C. Work Environment Harassment—Sexual Favoritism—Employer or Entity
Defendant (Gov. Code, § 12940(j))
VF-2507A. Work Environment Harassment—Conduct Directed at Plaintiff—Individual
Defendant (Gov. Code, § 12940(j))
VF-2507B. Work Environment Harassment—Conduct Directed at Others—Individual
Defendant (Gov. Code, § 12940(j))
VF-2507C. Work Environment Harassment—Sexual Favoritism—Individual Defendant
(Gov. Code, § 12940(j))
VF-2508. Disability Discrimination—Disparate Treatment
VF-2509. Disability Discrimination—Reasonable Accommodation (Gov. Code, § 12940(m))
VF-2510. Disability Discrimination—Reasonable Accommodation—Affirmative
Defense—Undue Hardship (Gov. Code, § 12940(m))
VF-2511. Religious Creed Discrimination—Failure to Accommodate (Gov. Code,
§ 12940(l))
VF-2512. Religious Creed Discrimination—Failure to Accommodate—Affirmative
Defense—Undue Hardship (Gov. Code, §§ 12926(u), 12940(l))
VF-2513. Disability Discrimination—Reasonable Accommodation—Failure to Engage in
Interactive Process (Gov. Code, § 12940(n))
VF-2514. Failure to Prevent Harassment, Discrimination, or Retaliation
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VF-2515. Limitation on Remedies—Same Decision
VF-2516–VF-2599. Reserved for Future Use
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SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT
2600. Violation of CFRA Rights—Essential Factual Elements
2601. Eligibility
2602. Reasonable Notice by Employee of Need for CFRA Leave
2603. “Comparable Job” Explained
2604–2609. Reserved for Future Use
2610. Affirmative Defense—No Certification From Health-Care Provider
2611. Affirmative Defense—Fitness for Duty Statement
2612. Affirmative Defense—Employment Would Have Ceased
2613–2619. Reserved for Future Use
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(k))
2621–2699. Reserved for Future Use
VF-2600. Violation of CFRA Rights
VF-2601. Violation of CFRA Rights—Affirmative Defense—Employment Would Have
Ceased
VF-2602. CFRA Rights Retaliation
VF-2603–VF-2699. Reserved for Future Use
SERIES 2700 LABOR CODE ACTIONS
2700. Nonpayment of Wages—Essential Factual Elements (Lab. Code, §§ 201, 202, 218)
2701. Nonpayment of Minimum Wage—Essential Factual Elements (Lab. Code, § 1194)
2702. Nonpayment of Overtime Compensation—Essential Factual Elements (Lab. Code,
§ 1194)
2703. Nonpayment of Overtime Compensation—Proof of Overtime Hours Worked
2704. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
2705. Independent Contractor—Affirmative Defense—Worker Was Not Hiring Entity’s
Employee (Lab. Code, § 2775)
2706–2709. Reserved for Future Use
2710. Solicitation of Employee by Misrepresentation—Essential Factual Elements (Lab.
Code, § 970)
2711. Preventing Subsequent Employment by Misrepresentation—Essential Factual Elements
(Lab. Code, § 1050)
2712–2719. Reserved for Future Use
2720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption
2721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption
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2722–2731. Reserved for Future Use
2732. Retaliatory Unfair Immigration-Related Practice—Essential Factual Elements (Lab.
Code, § 1019)
2733–2739. Reserved for Future Use
2740. Violation of Equal Pay Act—Essential Factual Elements (Lab. Code, § 1197.5)
2741. Affirmative Defense—Different Pay Justified
2742. Bona Fide Factor Other Than Sex, Race, or Ethnicity
2743. Equal Pay Act—Retaliation—Essential Factual Elements (Lab. Code, § 1197.5(k))
2744–2749. Reserved for Future Use
2750. Failure to Compensate Employee for Necessary Expenditures or Losses—Essential
Factual Elements
2751. Reserved for Future Use
2752. Tip Pool Gratuities—Essential Factual Elements
2753. Failure to Pay All Vested Vacation Time—Essential Factual Elements
2754. Reporting Time Pay—Essential Factual Elements
2755–2799. Reserved for Future Use
VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
VF-2702. Nonpayment of Overtime Compensation (Lab. Code, § 1194)
VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
VF-2704. Solicitation of Employee by Misrepresentation (Lab. Code, § 970)
VF-2705. Preventing Subsequent Employment by Misrepresentation (Lab. Code, § 1050)
VF-2706–VF-2799. Reserved for Future Use
SERIES 2800 WORKERS’ COMPENSATION
2800. Employer’s Affirmative Defense—Injury Covered by Workers’ Compensation
2801. Employer’s Willful Physical Assault—Essential Factual Elements (Lab. Code,
§ 3602(b)(1))
2802. Fraudulent Concealment of Injury—Essential Factual Elements (Lab. Code,
§ 3602(b)(2))
2803. Employer’s Defective Product—Essential Factual Elements (Lab. Code, § 3602(b)(3))
2804. Removal or Noninstallation of Power Press Guards—Essential Factual Elements (Lab.
Code, § 4558)
2805. Employee Not Within Course of Employment—Employer Conduct Unrelated to
Employment
2806–2809. Reserved for Future Use
2810. Coemployee’s Affirmative Defense—Injury Covered by Workers’ Compensation
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2811. Co-Employee’s Willful and Unprovoked Physical Act of Aggression—Essential
Factual Elements (Lab. Code, § 3601(a)(1))
2812. Injury Caused by Co-Employee’s Intoxication—Essential Factual Elements (Lab.
Code, § 3601(a)(2))
2813–2899. Reserved for Future Use
VF-2800. Employer’s Willful Physical Assault (Lab. Code, § 3602(b)(1))
VF-2801. Fraudulent Concealment of Injury (Lab. Code, § 3602(b)(2))
VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3))
VF-2803. Removal or Noninstallation of Power Press Guards (Lab. Code, § 4558)
VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of Aggression (Lab. Code,
§ 3601(a)(1))
VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab. Code, § 3601(a)(2))
VF-2806–VF-2899. Reserved for Future Use
SERIES 2900 FEDERAL EMPLOYERS’ LIABILITY ACT
2900. FELA—Essential Factual Elements
2901. Negligence—Duty of Railroad
2902. Negligence—Assignment of Employees
2903. Causation—Negligence
2904. Comparative Fault
2905. Compliance With Employer’s Requests or Directions
2906–2919. Reserved for Future Use
2920. Federal Safety Appliance Act or Boiler Inspection Act—Essential Factual Elements
2921. Causation Under FSAA or BIA
2922. Statute of Limitations—Special Verdict Form or Interrogatory
2923. Borrowed Servant/Dual Employee
2924. Status as Defendant’s Employee—Subservant Company
2925. Status of Defendant as Common Carrier
2926. Scope of Employment
2927–2939. Reserved for Future Use
2940. Income Tax Effects of Award
2941. Introduction to Damages for Personal Injury
2942. Damages for Death of Employee
2943–2999. Reserved for Future Use
VF-2900. FELA—Negligence—Plaintiff’s Negligence at Issue
VF-2901. Federal Safety Appliance Act or Boiler Inspection Act
VF-2902–VF-2999. Reserved for Future Use
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SERIES 3000 CIVIL RIGHTS
3000. Violation of Federal Civil Rights—In General—Essential Factual Elements (42 U.S.C.
§ 1983)
3001. Local Government Liability—Policy or Custom—Essential Factual Elements (42
U.S.C. § 1983)
3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)
3003. Local Government Liability—Failure to Train—Essential Factual Elements (42 U.S.C.
§ 1983)
3004. Local Government Liability—Act or Ratification by Official With Final Policymaking
Authority—Essential Factual Elements (42 U.S.C. § 1983)
3005. Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983)
3006–3019. Reserved for Future Use
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual
Elements (42 U.S.C. § 1983)
3021. Unlawful Arrest by Peace Officer Without a Warrant—Essential Factual Elements (42
U.S.C. § 1983)
3022. Unreasonable Search—Search With a Warrant—Essential Factual Elements (42 U.S.C.
§ 1983)
3023. Unreasonable Search or Seizure—Search or Seizure Without a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
3024. Affirmative Defense—Search Incident to Lawful Arrest
3025. Affirmative Defense—Consent to Search
3026. Affirmative Defense—Exigent Circumstances
3027. Affirmative Defense—Emergency
3028–3039. Reserved for Future Use
3040. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Substantial Risk of
Serious Harm (42 U.S.C. § 1983)
3041. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care (42
U.S.C. § 1983)
3042. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive Force
(42 U.S.C. § 1983)
3043. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Deprivation of
Necessities (42 U.S.C. § 1983)
3044–3045. Reserved for Future Use
3046. Violation of Pretrial Detainee’s Federal Civil Rights—Fourteenth
Amendment—Medical Care and Conditions of Confinement
3047–3049. Reserved for Future Use
3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
3051. Unlawful Removal of Child From Parental Custody Without a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
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3052. Use of Fabricated Evidence (42 U.S.C. § 1983)
3053. Retaliation for Exercise of Free Speech Rights—Essential Factual Elements (42 U.S.C.
§ 1983)
3054. Reserved for Future Use
3055. Rebuttal of Retaliatory Motive
3056–3059. Reserved for Future Use
3060. Unruh Civil Rights Act—Essential Factual Elements (Civ. Code, §§ 51, 52)
3061. Discrimination in Business Dealings—Essential Factual Elements (Civ. Code, § 51.5)
3062. Gender Price Discrimination—Essential Factual Elements (Civ. Code, § 51.6)
3063. Acts of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7)
3064. Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code, § 51.7)
3065. Sexual Harassment in Defined Relationship—Essential Factual Elements (Civ. Code,
§ 51.9)
3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1)
3067. Unruh Civil Rights Act—Damages (Civ. Code, §§ 51, 52(a))
3068. Ralph Act—Damages and Penalty (Civ. Code, §§ 51.7, 52(b))
3069. Harassment in Educational Institution (Ed. Code, § 220)
3070. Disability Discrimination—Access Barriers to Public Facility—Construction-Related
Accessibility Standards Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)
3071. Retaliation for Refusing to Authorize Disclosure of Medical Information—Essential
Factual Elements (Civ. Code, § 56.20(b))
3072–3099. Reserved for Future Use
VF-3000. Violation of Federal Civil Rights—In General (42 U.S.C. § 1983)
VF-3001. Public Entity Liability (42 U.S.C. § 1983)
VF-3002. Public Entity Liability—Failure to Train (42 U.S.C. § 1983)
VF-3003–VF-3009. Reserved for Future Use
VF-3010. Excessive Use of Force—Unreasonable Arrest or Other Seizure (42 U.S.C. § 1983)
VF-3011. Unreasonable Search—Search With a Warrant (42 U.S.C. § 1983)
VF-3012. Unreasonable Search or Seizure—Search or Seizure Without a Warrant (42 U.S.C.
§ 1983)
VF-3013. Unreasonable Search—Search Without a Warrant—Affirmative Defense—Search
Incident to Lawful Arrest (42 U.S.C. § 1983)
VF-3014–VF-3019. Reserved for Future Use
VF-3020. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive
Force (42 U.S.C. § 1983)
VF-3021. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Substantial
Risk of Serious Harm (42 U.S.C. § 1983)
VF-3022. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care
(42 U.S.C. § 1983)
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VF-3023. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Deprivation of
Necessities
VF-3024–VF-3029. Reserved for Future Use
VF-3030. Unruh Civil Rights Act (Civ. Code, §§ 51, 52(a))
VF-3031. Discrimination in Business Dealings (Civ. Code, §§ 51.5, 52(a))
VF-3032. Gender Price Discrimination (Civ. Code, § 51.6)
VF-3033. Ralph Act (Civ. Code, § 51.7)
VF-3034. Sexual Harassment in Defined Relationship (Civ. Code, § 51.9)
VF-3035. Bane Act (Civ. Code, § 52.1)
VF-3036–VF-3099. Reserved for Future Use
SERIES 3100 ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT
3100. Financial Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.30)
3101. Financial Abuse—Decedent’s Pain and Suffering (Welf. & Inst. Code, § 15657.5)
3102A. Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3102B. Employer Liability for Enhanced Remedies—Employer Defendant Only (Welf. &
Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57)
3104. Neglect—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3105. Reserved for Future Use
3106. Physical Abuse—Essential Factual Elements (Welf. & Inst. Code, § 15610.63)
3107. Physical Abuse—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3108. Reserved for Future Use
3109. Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06)
3110. Abduction—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)
3111. Reserved for Future Use
3112. “Dependent Adult” Explained (Welf. & Inst. Code, § 15610.23)
3113. “Recklessness” Explained
3114. “Malice” Explained
3115. “Oppression” Explained
3116. “Fraud” Explained
3117. Financial Abuse—“Undue Influence” Explained
3118–3199. Reserved for Future Use
VF-3100. Financial Abuse—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.30, 15657.5(b))
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VF-3101. Financial Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.30,
15657.5(b))
VF-3102. Neglect—Individual or Individual and Employer Defendants (Welf. & Inst. Code,
§§ 15610.57, 15657; Civ. Code, § 3294(b))
VF-3103. Neglect—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.57, 15657;
Civ. Code, § 3294(b))
VF-3104. Physical Abuse—Individual or Individual and Employer Defendants (Welf. & Inst.
Code, §§ 15610.63, 15657; Civ. Code, § 3294(b))
VF-3105. Physical Abuse—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.63,
15657; Civ. Code, § 3294(b))
VF-3106. Abduction—Individual or Individual and Employer Defendants (Welf. & Inst.
Code, §§ 15610.06, 15657.05; Civ. Code, § 3294(b))
VF-3107. Abduction—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.06,
15657.05; Civ. Code, § 3294(b))
VF-3108–VF-3199. Reserved for Future Use
Table A. Elder Abuse: Causes of Action, Remedies, and Employer Liability
SERIES 3200 SONG-BEVERLY CONSUMER WARRANTY ACT
3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of Repair
Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))
3201. Failure to Promptly Repurchase or Replace New Motor Vehicle After Reasonable
Number of Repair Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))
3202. “Repair Opportunities” Explained
3203. Reasonable Number of Repair Opportunities—Rebuttable Presumption (Civ. Code,
§ 1793.22(b))
3204. “Substantially Impaired” Explained
3205. Failure to Begin Repairs Within Reasonable Time or to Complete Repairs Within 30
Days—Essential Factual Elements (Civ. Code, § 1793.2(b))
3206. Breach of Disclosure Obligations—Essential Factual Elements
3207–3209. Reserved for Future Use
3210. Breach of Implied Warranty of Merchantability—Essential Factual Elements
3211. Breach of Implied Warranty of Fitness for a Particular Purpose—Essential Factual
Elements
3212. Duration of Implied Warranty
3213–3219. Reserved for Future Use
3220. Affirmative Defense—Unauthorized or Unreasonable Use
3221. Affirmative Defense—Disclaimer of Implied Warranties
3222. Affirmative Defense—Statute of Limitations (Cal. U. Com. Code, § 2725)
3223–3229. Reserved for Future Use
3230. Continued Reasonable Use Permitted
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3231. Continuation of Express or Implied Warranty During Repairs (Civ. Code, § 1795.6)
3232–3239. Reserved for Future Use
3240. Reimbursement Damages—Consumer Goods (Civ. Code, §§ 1793.2(d)(1), 1794(b))
3241. Restitution From Manufacturer—New Motor Vehicle (Civ. Code, §§ 1793.2(d)(2),
1794(b))
3242. Incidental Damages
3243. Consequential Damages
3244. Civil Penalty—Willful Violation (Civ. Code, § 1794(c))
3245–3299. Reserved for Future Use
VF-3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities (Civ. Code, § 1793.2(d))
VF-3201. Consequential Damages
VF-3202. Failure to Repurchase or Replace Consumer Good After Reasonable Number of
Repair Opportunities—Affirmative Defense—Unauthorized or Unreasonable Use
(Civ. Code, § 1793.2(d))
VF-3203. Breach of Express Warranty—New Motor Vehicle—Civil Penalty Sought
VF-3204. Breach of Implied Warranty of Merchantability
VF-3205. Breach of Implied Warranty of Merchantability—Affirmative
Defense—Disclaimer of Implied Warranties
VF-3206. Breach of Disclosure Obligations
VF-3207–VF-3299. Reserved for Future Use
SERIES 3300 UNFAIR PRACTICES ACT
3300. Locality Discrimination—Essential Factual Elements
3301. Below Cost Sales—Essential Factual Elements
3302. Loss Leader Sales—Essential Factual Elements
3303. Definition of “Cost”
3304. Presumptions Concerning Costs—Manufacturer
3305. Presumptions Concerning Costs—Distributor
3306. Methods of Allocating Costs to an Individual Product
3307–3319. Reserved for Future Use
3320. Secret Rebates—Essential Factual Elements
3321. Secret Rebates—Definition of “Secret”
3322–3329. Reserved for Future Use
3330. Affirmative Defense to Locality Discrimination Claim—Cost Justification
3331. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader
Sales Claims—Closed-out, Discontinued, Damaged, or Perishable Items
3332. Affirmative Defense to Locality Discrimination, Below Cost Sales, Loss Leader Sales,
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and Secret Rebates—Functional Classifications
3333. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss Leader
Sales Claims—Meeting Competition
3334. Affirmative Defense to Locality Discrimination Claim—Manufacturer Meeting
Downstream Competition
3335. Affirmative Defense—“Good Faith” Explained
3336–3399. Reserved for Future Use
VF-3300. Locality Discrimination
VF-3301. Locality Discrimination Claim—Affirmative Defense—Cost Justification
VF-3302. Below Cost Sales
VF-3303. Below Cost Sales Claim—Affirmative Defense—Closed-out, Discontinued,
Damaged, or Perishable Items
VF-3304. Loss Leader Sales
VF-3305. Loss Leader Sales Claim—Affirmative Defense—Meeting Competition
VF-3306. Secret Rebates
VF-3307. Secret Rebates Claim—Affirmative Defense—Functional Classifications
VF-3308–VF-3399. Reserved for Future Use
SERIES 3400 CARTWRIGHT ACT
3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price
Fixing—Essential Factual Elements
3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Essential Factual Elements
3402. Horizontal Restraints—Dual Distributor Restraints—Essential Factual Elements
3403. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation—Essential Factual Elements
3404. Horizontal Restraints—Group Boycott—Rule of Reason—Essential Factual Elements
3405. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason—Essential
Factual Elements
3406. Horizontal and Vertical Restraints—“Agreement” Explained
3407. Horizontal and Vertical Restraints—Agreement Between Company and Its Employee
3408. Vertical Restraints—“Coercion” Explained
3409. Vertical Restraints—Termination of Reseller
3410. Vertical Restraints—Agreement Between Seller and Reseller’s Competitor
3411. Rule of Reason—Anticompetitive Versus Beneficial Effects
3412. Rule of Reason—“Market Power” Explained
3413. Rule of Reason—“Product Market” Explained
3414. Rule of Reason—“Geographic Market” Explained
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3415–3419. Reserved for Future Use
3420. Tying—Real Estate, Products, or Services—Essential Factual Elements (Bus. & Prof.
Code, § 16720)
3421. Tying—Products or Services—Essential Factual Elements (Bus. & Prof. Code,
§ 16727)
3422. Tying—“Separate Products” Explained
3423. Tying—“Economic Power” Explained
3424–3429. Reserved for Future Use
3430. “Noerr-Pennington” Doctrine
3431. Affirmative Defense—In Pari Delicto
3432–3439. Reserved for Future Use
3440. Damages
3441–3499. Reserved for Future Use
VF-3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price Fixing
VF-3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce
VF-3402. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Affirmative Defense—In Pari Delicto
VF-3403. Horizontal Restraints—Dual Distributor Restraints
VF-3404. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation
VF-3405. Horizontal Restraints—Group Boycott—Rule of Reason
VF-3406. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason
VF-3407. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/Reseller
Relations)—Other Unreasonable Restraint of Trade—Rule of Reason Affirmative
Defense—“Noerr-Pennington” Doctrine
VF-3408. Tying—Real Estate, Products, or Services (Bus. & Prof. Code, § 16720)
VF-3409. Tying—Products or Services (Bus. & Prof. Code, § 16727)
VF-3410–VF-3499. Reserved for Future Use
SERIES 3500 EMINENT DOMAIN
3500. Introductory Instruction
3501. “Fair Market Value” Explained
3502. “Highest and Best Use” Explained
3503. Change in Zoning or Land Use Restriction
3504. Project Enhanced Value
3505. Information Discovered after Date of Valuation
3506. Effect of Improvements
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3507. Personal Property and Inventory
3508. Bonus Value of Leasehold Interest
3509A. Precondemnation Damages—Unreasonable Delay (Klopping Damages)
3509B. Precondemnation Damages—Public Entity’s Authorized Entry to Investigate
Property’s Suitability (Code Civ. Proc., § 1245.060)
3510. Value of Easement
3511A. Severance Damages to Remainder (Code Civ. Proc., §§ 1263.410, 1263.420(a))
3511B. Damage to Remainder During Construction (Code Civ. Proc., § 1263.420(b))
3512. Severance Damages—Offset for Benefits
3513. Goodwill
3514. Burden of Proof
3515. Valuation Testimony
3516. View
3517. Comparable Sales (Evid. Code, § 816)
3518–3599. Reserved for Future Use
VF-3500. Fair Market Value Plus Goodwill
VF-3501. Fair Market Value Plus Severance Damages
VF-3502. Fair Market Value Plus Loss of Inventory/Personal Property
VF-3503–VF-3599. Reserved for Future Use
SERIES 3600 CONSPIRACY
3600. Conspiracy—Essential Factual Elements
3601. Ongoing Conspiracy
3602. Affirmative Defense—Agent and Employee Immunity Rule
3603–3609. Reserved for Future Use
3610. Aiding and Abetting Tort—Essential Factual Elements
3611–3699. Reserved for Future Use
SERIES 3700 VICARIOUS RESPONSIBILITY
3700. Introduction to Vicarious Responsibility
3701. Tort Liability Asserted Against Principal—Essential Factual Elements
3702. Affirmative Defense—Comparative Fault of Plaintiff’s Agent
3703. Legal Relationship Not Disputed
3704. Existence of “Employee” Status Disputed
3705. Existence of “Agency” Relationship Disputed
3706. Special Employment—Lending Employer Denies Responsibility for Worker’s Acts
3707. Special Employment—Joint Responsibility
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3708. Peculiar-Risk Doctrine
3709. Ostensible Agent
3710. Ratification
3711. Partnerships
3712. Joint Ventures
3713. Nondelegable Duty
3714. Ostensible Agency—Physician-Hospital Relationship
3715–3719. Reserved for Future Use
3720. Scope of Employment
3721. Scope of Employment—Peace Officer’s Misuse of Authority
3722. Scope of Employment—Unauthorized Acts
3723. Substantial Deviation
3724. Social or Recreational Activities
3725. Going-and-Coming Rule—Vehicle-Use Exception
3726. Going-and-Coming Rule—Business-Errand Exception
3727. Going-and-Coming Rule—Compensated Travel Time Exception
3728–3799. Reserved for Future Use
VF-3700. Negligence—Vicarious Liability
VF-3701–VF-3799. Reserved for Future Use
SERIES 3800 EQUITABLE INDEMNITY
3800. Comparative Fault Between and Among Tortfeasors
3801. Implied Contractual Indemnity
3802–3899. Reserved for Future Use
SERIES 3900 DAMAGES
3900. Introduction to Tort Damages—Liability Contested
3901. Introduction to Tort Damages—Liability Established
3902. Economic and Noneconomic Damages
3903. Items of Economic Damage
3903A. Medical Expenses—Past and Future (Economic Damage)
3903B. Medical Monitoring—Toxic Exposure (Economic Damage)
3903C. Past and Future Lost Earnings (Economic Damage)
3903D. Lost Earning Capacity (Economic Damage)
3903E. Loss of Ability to Provide Household Services (Economic Damage)
3903F. Damage to Real Property (Economic Damage)
3903G. Loss of Use of Real Property (Economic Damage)
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3903H. Damage to Annual Crop (Economic Damage)
3903I. Damage to Perennial Crop (Economic Damage)
3903J. Damage to Personal Property (Economic Damage)
3903K. Loss or Destruction of Personal Property (Economic Damage)
3903L. Damage to Personal Property Having Special Value (Civ. Code, § 3355) (Economic
Damage)
3903M. Loss of Use of Personal Property (Economic Damage)
3903N. Lost Profits (Economic Damage)
3903O. Injury to Pet—Costs of Treatment (Economic Damage)
3903P. Damages From Employer for Wrongful Discharge (Economic Damage)
3903Q. Survival Damages (Economic Damage) (Code Civ. Proc., § 377.34)
3904A. Present Cash Value
3904B. Use of Present-Value Tables
3905. Items of Noneconomic Damage
3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)
3906. Lost Earnings and Lost Earning Capacity—Jurors Not to Reduce Damages on Basis of
Race, Ethnicity, or Gender (Economic Damage)
3907–3919. Reserved for Future Use
3920. Loss of Consortium (Noneconomic Damage)
3921. Wrongful Death (Death of an Adult)
3922. Wrongful Death (Parents’ Recovery for Death of a Minor Child)
3923. Public Entities—Collateral Source Payments (Gov. Code, § 985)
3924. No Punitive Damages
3925. Arguments of Counsel Not Evidence of Damages
3926. Settlement Deduction
3927. Aggravation of Preexisting Condition or Disability
3928. Unusually Susceptible Plaintiff
3929. Subsequent Medical Treatment or Aid
3930. Mitigation of Damages (Personal Injury)
3931. Mitigation of Damages (Property Damage)
3932. Life Expectancy
3933. Damages From Multiple Defendants
3934. Damages on Multiple Legal Theories
3935. Prejudgment Interest (Civ. Code, § 3288)
3936–3939. Reserved for Future Use
3940. Punitive Damages—Individual Defendant—Trial Not Bifurcated
3941. Punitive Damages—Individual Defendant—Bifurcated Trial (First Phase)
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3942. Punitive Damages—Individual Defendant—Bifurcated Trial (Second Phase)
3943. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or
Employee—Trial Not Bifurcated
3944. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or
Employee—Bifurcated Trial (First Phase)
3945. Punitive Damages—Entity Defendant—Trial Not Bifurcated
3946. Punitive Damages—Entity Defendant—Bifurcated Trial (First Phase)
3947. Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated
3948. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based
on Acts of Named Individual)—Bifurcated Trial (First Phase)
3949. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based
on Acts of Named Individual)—Bifurcated Trial (Second Phase)
3950–3959. Reserved for Future Use
3960. Comparative Fault of Plaintiff—General Verdict
3961. Duty to Mitigate Damages for Past Lost Earnings
3962. Duty to Mitigate Damages for Future Lost Earnings
3963. Affirmative Defense—Employee’s Duty to Mitigate Damages
3964. Jurors Not to Consider Attorney Fees and Court Costs
3965. No Deduction for Workers’ Compensation Benefits Paid
3966–3999. Reserved for Future Use
VF-3900. Punitive Damages
VF-3901. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent
or Employee
VF-3902. Punitive Damages—Entity Defendant
VF-3903. Punitive Damages—Entity Defendant—Ratification
VF-3904. Punitive Damages—Entity Defendant—Authorization
VF-3905. Damages for Wrongful Death (Death of an Adult)
VF-3906. Damages for Wrongful Death (Parents’ Recovery for Death of a Minor Child)
VF-3907. Damages for Loss of Consortium (Noneconomic Damage)
VF-3908–VF-3919. Reserved for Future Use
VF-3920. Damages on Multiple Legal Theories
VF-3921–VF-3999. Reserved for Future Use
SERIES 4000 LANTERMAN-PETRIS-SHORT ACT
4000. Conservatorship—Essential Factual Elements
4001. “Mental Disorder” Explained
4002. “Gravely Disabled” Explained
4003. “Gravely Disabled” Minor Explained
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4004. Issues Not to Be Considered
4005. Obligation to Prove—Reasonable Doubt
4006. Sufficiency of Indirect Circumstantial Evidence
4007. Third Party Assistance
4008. Third Party Assistance to Minor
4009. Physical Restraint
4010. Limiting Instruction—Expert Testimony
4011. History of Disorder Relevant to the Determination of Grave Disability
4012. Concluding Instruction
4013. Disqualification From Voting
4014–4099. Reserved for Future Use
VF-4000. Conservatorship—Verdict Form
VF-4001–VF-4099. Reserved for Future Use
SERIES 4100 BREACH OF FIDUCIARY DUTY
4100. “Fiduciary Duty” Explained
4101. Failure to Use Reasonable Care—Essential Factual Elements
4102. Duty of Undivided Loyalty—Essential Factual Elements
4103. Duty of Confidentiality—Essential Factual Elements
4104. Duties of Escrow Holder
4105. Duties of Stockbroker—Speculative Securities
4106. Breach of Fiduciary Duty by Attorney—Essential Factual Elements
4107. Duty of Disclosure by Real Estate Broker to Client
4108. Failure of Seller’s Real Estate Broker to Conduct Reasonable Inspection—Essential
Factual Elements (Civ. Code, § 2079)
4109. Duty of Disclosure by Seller’s Real Estate Broker to Buyer
4110. Breach of Duty by Real Estate Seller’s Agent—Inaccurate Information in Multiple
Listing Service—Essential Factual Elements (Civ. Code, § 1088)
4111. Constructive Fraud (Civ. Code, § 1573)
4112–4119. Reserved for Future Use
4120. Affirmative Defense—Statute of Limitations
4121–4199. Reserved for Future Use
SERIES 4200 UNIFORM VOIDABLE TRANSACTIONS ACT
4200. Actual Intent to Hinder, Delay, or Defraud a Creditor—Essential Factual Elements
(Civ. Code, § 3439.04(a)(1))
4201. Factors to Consider in Determining Actual Intent to Hinder, Delay, or Defraud (Civ.
Code, § 3439.04(b))
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4202. Constructive Fraudulent Transfer—No Reasonably Equivalent Value
Received—Essential Factual Elements (Civ. Code, § 3439.04(a)(2))
4203. Constructive Fraudulent Transfer—Insolvency—Essential Factual Elements (Civ.
Code, § 3439.05)
4204. “Transfer” Explained
4205. “Insolvency” Explained
4206. Presumption of Insolvency
4207. Affirmative Defense—Good Faith (Civ. Code, § 3439.08(a), (f)(1))
4208. Affirmative Defense—Statute of Limitations—Actual and Constructive Fraud (Civ.
Code, § 3439.09(a), (b))
4209–4299. Reserved for Future Use
VF-4200. Actual Intent to Hinder, Delay, or Defraud Creditor—Affirmative Defense—Good
Faith
VF-4201. Constructive Fraudulent Transfer—No Reasonably Equivalent Value Received
VF-4202. Constructive Fraudulent Transfer—Insolvency
VF-4203–VF-4299. Reserved for Future Use
SERIES 4300 UNLAWFUL DETAINER
4300. Introductory Instruction
4301. Expiration of Fixed-Term Tenancy—Essential Factual Elements
4302. Termination for Failure to Pay Rent—Essential Factual Elements
4303. Sufficiency and Service of Notice of Termination for Failure to Pay Rent
4304. Termination for Violation of Terms of Lease/Agreement—Essential Factual Elements
4305. Sufficiency and Service of Notice of Termination for Violation of Terms of Agreement
4306. Termination of Month-to-Month Tenancy—Essential Factual Elements
4307. Sufficiency and Service of Notice of Termination of Month-to-Month Tenancy
4308. Termination for Nuisance or Unlawful Use—Essential Factual Elements (Code Civ.
Proc., § 1161(4))
4309. Sufficiency and Service of Notice of Termination for Nuisance or Unlawful Use
4310–4319. Reserved for Future Use
4320. Affirmative Defense—Implied Warranty of Habitability
4321. Affirmative Defense—Retaliatory Eviction—Tenant’s Complaint (Civ. Code,
§ 1942.5)
4322. Affirmative Defense—Retaliatory Eviction—Engaging in Legally Protected Activity
(Civ. Code, § 1942.5(d))
4323. Affirmative Defense—Discriminatory Eviction (Unruh Act)
4324. Affirmative Defense—Waiver by Acceptance of Rent
4325. Affirmative Defense—Failure to Comply With Rent Control Ordinance/Tenant
Protection Act
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4326. Affirmative Defense—Repair and Deduct
4327. Affirmative Defense—Landlord’s Refusal of Rent
4328. Affirmative Defense—Tenant Was Victim of Domestic Violence, Sexual Assault,
Stalking, Elder/Dependent Adult Abuse, or Human Trafficking (Code Civ. Proc.,
§ 1161.3)
4329. Affirmative Defense—Failure to Provide Reasonable Accommodation
4330. Denial of Requested Accommodation
4331–4339. Reserved for Future Use
4340. Damages for Reasonable Rental Value
4341. Statutory Damages on Showing of Malice (Code Civ. Proc., § 1174(b))
4342. Reduced Rent for Breach of Habitability
4343–4399. Reserved for Future Use
VF-4300. Termination Due to Failure to Pay Rent
VF-4301. Termination Due to Failure to Pay Rent—Affirmative Defense—Breach of Implied
Warranty of Habitability
VF-4302. Termination Due to Violation of Terms of Lease/Agreement
VF-4303–VF-4399. Reserved for Future Use
SERIES 4400 TRADE SECRETS
4400. Misappropriation of Trade Secrets—Introduction
4401. Misappropriation of Trade Secrets—Essential Factual Elements
4402. “Trade Secret” Defined
4403. Secrecy Requirement
4404. Reasonable Efforts to Protect Secrecy
4405. Misappropriation by Acquisition
4406. Misappropriation by Disclosure
4407. Misappropriation by Use
4408. Improper Means of Acquiring Trade Secret
4409. Remedies for Misappropriation of Trade Secret
4410. Unjust Enrichment
4411. Punitive Damages for Willful and Malicious Misappropriation
4412. “Independent Economic Value” Explained
4413–4419. Reserved for Future Use
4420. Affirmative Defense—Information Was Readily Ascertainable by Proper Means
4421. Affirmative Defense—Statute of Limitations—Three-Year Limit (Civ. Code, § 3426.6)
4422–4499. Reserved for Future Use
VF-4400. Misappropriation of Trade Secrets
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VF-4401–VF-4499. Reserved for Future Use
SERIES 4500 CONSTRUCTION LAW
4500. Breach of Implied Warranty of Correctness of Plans and Specifications—Essential
Factual Elements
4501. Owner’s Liability for Failing to Disclose Important Information Regarding a
Construction Project—Essential Factual Elements
4502. Breach of Implied Covenant to Provide Necessary Items Within Owner’s
Control—Essential Factual Elements
4503–4509. Reserved for Future Use
4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Essential Factual Elements
4511. Affirmative Defense—Contractor Followed Plans and Specifications
4512–4519. Reserved for Future Use
4520. Contractor’s Claim for Changed or Extra Work
4521. Owner’s Claim That Contract Procedures Regarding Change Orders Were Not
Followed
4522. Waiver of Written Approval or Notice Requirements for Changed or Additional Work
4523. Contractor’s Claim for Additional Compensation—Abandonment of Contract
4524. Contractor’s Claim for Compensation Due Under Contract—Substantial Performance
4525–4529. Reserved for Future Use
4530. Owner’s Damages for Breach of Construction Contract—Work Does Not Conform to
Contract
4531. Owner’s Damages for Breach of Construction Contract—Failure to Complete Work
4532. Owner’s Damages for Breach of Construction Contract—Liquidated Damages Under
Contract for Delay
4533–4539. Reserved for Future Use
4540. Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra
Work
4541. Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra
Work—Total Cost Recovery
4542. Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit
Recovery
4543. Contractor’s Damages for Breach of Construction Contract—Owner-Caused Delay or
Acceleration
4544. Contractor’s Damages for Breach of Construction Contract—Inefficiency Because of
Owner Conduct
4545–4549. Reserved for Future Use
4550. Affirmative Defense—Statute of Limitations—Patent Construction Defect (Code Civ.
Proc., § 337.1)
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4551. Affirmative Defense—Statute of Limitations—Latent Construction Defect (Code Civ.
Proc., § 337.15)
4552. Affirmative Defense—Work Completed and Accepted—Patent Defect
4553–4559. Reserved for Future Use
4560. Recovery of Payments to Unlicensed Contractor—Essential Factual Elements (Bus. &
Prof. Code, § 7031(b))
4561. Damages—All Payments Made to Unlicensed Contractor
4562. Payment for Construction Services Rendered—Essential Factual Elements (Bus. &
Prof. Code, § 7031(a), (e))
4563–4569. Reserved for Future Use
4570. Right to Repair Act—Construction Defects—Essential Factual Elements (Civ. Code,
§ 896)
4571. Right to Repair Act—Damages (Civ. Code, § 944)
4572. Right to Repair Act—Affirmative Defense—Act of Nature (Civ. Code, § 945.5(a))
4573. Right to Repair Act—Affirmative Defense—Unreasonable Failure to Minimize or
Prevent Damage (Civ. Code, § 945.5(b))
4574. Right to Repair Act—Affirmative Defense—Plaintiff’s Subsequent Acts or Omissions
(Civ. Code, § 945.5(d))
4575. Right to Repair Act—Affirmative Defense—Failure to Follow Recommendations or to
Maintain (Civ. Code, § 945.5(c))
4576–4599. Reserved for Future Use
VF-4500. Owner’s Failure to Disclose Important Information Regarding Construction Project
VF-4501–VF-4509. Reserved for Future Use
VF-4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Affirmative Defense—Contractor Followed Plans and Specifications
VF-4511–VF-4519. Reserved for Future Use
VF-4520. Contractor’s Claim for Changed or Extra Work—Owner’s Response That Contract
Procedures Not Followed—Contractor’s Claim of Waiver
VF-4521–VF-4599. Reserved for Future Use
SERIES 4600 WHISTLEBLOWER PROTECTION
4600. False Claims Act: Whistleblower Protection—Essential Factual Elements (Gov. Code,
§ 12653)
4601. Protected Disclosure by State Employee—California Whistleblower Protection
Act—Essential Factual Elements (Gov. Code, § 8547.8(c))
4602. Affirmative Defense—Same Decision (Gov. Code, § 8547.8(e))
4603. Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5)
4604. Affirmative Defense—Same Decision (Lab. Code, § 1102.6)
4605. Whistleblower Protection—Health or Safety Complaint—Essential Factual Elements
(Lab. Code, § 6310)
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4606. Whistleblower Protection—Unsafe Patient Care and Conditions—Essential Factual
Elements (Health & Saf. Code, § 1278.5)
4607–4699. Reserved for Future Use
VF-4600. False Claims Act: Whistleblower Protection (Gov. Code, § 12653)
VF-4601. Protected Disclosure by State Employee—California Whistleblower Protection
Act—Affirmative Defense—Same Decision (Gov. Code, § 8547.8(c))
VF-4602. Whistleblower Protection—Affirmative Defense of Same Decision (Lab. Code,
§§ 1102.5, 1102.6)
VF-4603–VF-4699. Reserved for Future Use
SERIES 4700 CONSUMERS LEGAL REMEDIES ACT
4700. Consumers Legal Remedies Act—Essential Factual Elements (Civ. Code, § 1770)
4701. Consumers Legal Remedies Act—Notice Requirement for Damages (Civ. Code,
§ 1782)
4702. Consumers Legal Remedies Act—Statutory Damages—Senior or Disabled Plaintiff
(Civ. Code, § 1780(b))
4703–4709. Reserved for Future Use
4710. Consumers Legal Remedies Act—Affirmative Defense—Bona Fide Error and
Correction (Civ. Code, § 1784)
4711–4799. Reserved for Future Use
SERIES 4800 CALIFORNIA FALSE CLAIMS ACT
4800. False Claims Act—Essential Factual Elements (Gov. Code, § 12651)
4801. Implied Certification of Compliance With All Contractual Provisions—Essential
Factual Elements
4802-4899. Reserved for Future Use
SERIES 4900 REAL PROPERTY LAW
4900. Adverse Possession
4901. Prescriptive Easement
4902. Interference With Secondary Easement
4903-4909. Reserved for Future Use
4910. Violation of Homeowner Bill of Rights—Essential Factual Elements (Civ. Code,
§ 2924.12(b))
4911-4919. Reserved for Future Use
4920. Wrongful Foreclosure—Essential Factual Elements
4921. Wrongful Foreclosure—Tender Excused
4922-4999. Reserved for Future Use
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SERIES 5000 CONCLUDING INSTRUCTIONS
5000. Duties of the Judge and Jury
5001. Insurance
5002. Evidence
5003. Witnesses
5004. Service Provider for Juror With Disability
5005. Multiple Parties
5006. Nonperson Party
5007. Removal of Claims or Parties and Remaining Claims and Parties
5008. Duty to Abide by Translation Provided in Court
5009. Predeliberation Instructions
5010. Taking Notes During the Trial
5011. Reading Back of Trial Testimony in Jury Room
5012. Introduction to Special Verdict Form
5013. Deadlocked Jury Admonition
5014. Substitution of Alternate Juror
5015. Instruction to Alternate Jurors on Submission of Case to Jury
5016. Judge’s Commenting on Evidence
5017. Polling the Jury
5018. Audio or Video Recording and Transcription
5019. Questions From Jurors
5020. Demonstrative Evidence
5021. Electronic Evidence
5022. Introduction to General Verdict Form
5023–5089. Reserved for Future Use
5090. Final Instruction on Discharge of Jury
5091–5099. Reserved for Future Use
VF-5000. General Verdict Form—Single Plaintiff—Single Defendant—Single Cause of
Action
VF-5001. General Verdict Form—Single Plaintiff—Single Defendant—Multiple Causes of
Action
VF-5002–VF-5099. Reserved for Future Use
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CALIFORNIA FAMILY RIGHTS ACT
2600. Violation of CFRA Rights—Essential Factual Elements
2601. Eligibility
2602. Reasonable Notice by Employee of Need for CFRA Leave
2603. “Comparable Job” Explained
2604–2609. Reserved for Future Use
2610. Affirmative Defense—No Certification From Health-Care Provider
2611. Affirmative Defense—Fitness for Duty Statement
2612. Affirmative Defense—Employment Would Have Ceased
2613–2619. Reserved for Future Use
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code,
§ 12945.2(k))
2621–2699. Reserved for Future Use
VF-2600. Violation of CFRA Rights
VF-2601. Violation of CFRA Rights—Affirmative Defense—Employment Would
Have Ceased
VF-2602. CFRA Rights Retaliation
VF-2603–VF-2699. Reserved for Future Use
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2600. Violation of CFRA Rights—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] [refused to grant [him/
her/nonbinary pronoun] [family care/medical] leave] [refused to return
[him/her/nonbinary pronoun] to the same or a comparable job when [his/
her/nonbinary pronoun] [family care/medical] leave ended] [other violation
of CFRA rights]. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of plaintiff] was eligible for [family care/medical]
leave;
2. That [name of plaintiff] [requested/took] leave [insert one of the
following:]
2. [for the birth of [name of plaintiff]’s child or bonding with the
child;]
2. [for the placement of a child with [name of plaintiff] for adoption
or foster care;]
2. [to care for [name of plaintiff]’s [child/parent/spouse/domestic
partner/grandparent/grandchild/sibling] who had a serious health
condition;]
2. [for [name of plaintiff]’s own serious health condition that made
[him/her/nonbinary pronoun] unable to perform the functions of
[his/her/nonbinary pronoun] job with [name of defendant];]
2. [for [specify qualifying military exigency related to covered active
duty or call to covered active duty of a spouse, domestic partner,
child, or parent, e.g., [name of plaintiff]’s spouse’s upcoming military
deployment on short notice];]
3. That [name of plaintiff] provided reasonable notice to [name of
defendant] of [his/her/nonbinary pronoun] need for [family care/
medical] leave, including its expected timing and length. [If [name
of defendant] notified [his/her/nonbinary pronoun/its] employees
that 30 days’ advance notice was required before the leave was to
begin, then [name of plaintiff] must show that [he/she/nonbinary
pronoun] gave that notice or, if 30 days’ notice was not reasonably
possible under the circumstances, that [he/she/nonbinary pronoun]
gave notice as soon as possible];
4. That [name of defendant] [refused to grant [name of plaintiff]’s
request for [family care/medical] leave/refused to return [name of
plaintiff] to the same or a comparable job when [his/her/nonbinary
pronoun] [family care/medical] leave ended/other violation of CFRA
rights];
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CALIFORNIA FAMILY RIGHTS ACT CACI No. 2600
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s [decision/conduct] was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised October 2008, May 2021
Directions for Use
This instruction is intended for use when an employee claims violation of the CFRA
(Gov. Code, § 12945.1 et seq.). In addition to a qualifying employer’s refusal to
grant CFRA leave, CFRA violations include failure to provide benefits as required
by CFRA and loss of seniority.
The second-to-last bracketed option in element 2 does not include leave taken for
disability on account of pregnancy, childbirth, or related medical conditions. (Gov.
Code, § 12945.2(b)(4)(C).) If there is a dispute concerning the existence of a
“serious health condition,” the court must instruct the jury as to the meaning of this
term. (See Gov. Code, § 12945.2(b)(12).) If there is no dispute concerning the
relevant individual’s condition qualifying as a “serious health condition,” it is
appropriate for the judge to instruct the jury that the condition qualifies as a “serious
health condition.”
The last bracketed option in element 2 requires a qualifying exigency for military
family leave related to the covered active duty or call to covered active duty of the
employee’s spouse, domestic partner, child, or parent in the Armed Forces of the
United States. That phrase is defined in the Unemployment Insurance Code. (See
Unemployment Ins. Code, § 3302.2.)
Give the bracketed sentence under element 3 only if the facts involve an expected
birth, placement for adoption, or planned medical treatment, and there is evidence
that the employer required 30 days’ advance notice of leave. (See Cal. Code Regs.,
tit. 2, § 11091(a)(2).)
Sources and Authority
• California Family Rights Act. Government Code section 12945.2.
• “Employer” Defined. Government Code section 12945.2(b)(3).
• “Serious Health Condition” Defined. Government Code section 12945.2(b)(12).
• “An employee who takes CFRA leave is guaranteed that taking such leave will
not result in a loss of job security or other adverse employment actions. Upon an
employee’s timely return from CFRA leave, an employer must generally restore
the employee to the same or a comparable position. An employer is not required
to reinstate an employee who cannot perform her job duties after the expiration
of a protected medical leave.” (Rogers v. County of Los Angeles (2011) 198
Cal.App.4th 480, 487 [130 Cal.Rptr.3d 350], footnote and internal citations
omitted, superseded on other grounds by statute.)
• “A CFRA interference claim ‘ “consists of the following elements: (1) the
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CACI No. 2600 CALIFORNIA FAMILY RIGHTS ACT
employee’s entitlement to CFRA leave rights; and (2) the employer’s
interference with or denial of those rights.” ’ ” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 601 [210 Cal.Rptr.3d 59].)
• “[C]ourts have distinguished between two theories of recovery under the CFRA
and the FMLA. ‘Interference’ claims prevent employers from wrongly interfering
with employees’ approved leaves of absence, and ‘retaliation’ or ‘discrimination’
claims prevent employers from terminating or otherwise taking action against
employees because they exercise those rights.” (Richey v. AutoNation, Inc.
(2015) 60 Cal.4th 909, 920 [182 Cal. Rptr. 3d 644, 341 P.3d 438].)
• “An interference claim under CFRA does not invoke the burden shifting analysis
of the McDonnell Douglas test. Rather, such a claim requires only that the
employer deny the employee’s entitlement to CFRA-qualifying leave. A CFRA
interference claim ‘consists of the following elements: (1) the employee’s
entitlement to CFRA leave rights; and (2) the employer’s interference with or
denial of those rights.’ ” (Moore v. Regents of University of California (2016)
248 Cal.App.4th 216, 250 [206 Cal.Rptr.3d 841], internal citations omitted.)
• “The right to reinstatement is unwaivable but not unlimited.” (Richey, supra, 60
Cal.4th at p. 919.)
• “It is not enough that [plaintiff’s] mother had a serious health condition.
[Plaintiff’s] participation to provide care for her mother had to be ‘warranted’
during a ‘period of treatment or supervision . . . .’ ” (Pang v. Beverly Hospital,
Inc. (2000) 79 Cal.App.4th 986, 995 [94 Cal.Rptr.2d 643], internal citation and
footnote omitted.)
• “[T]he relevant inquiry is whether a serious health condition made [plaintiff]
unable to do her job at defendant’s hospital, not her ability to do her essential
job functions ‘generally’ . . . .” (Lonicki v. Sutter Health Central (2008) 43
Cal.4th 201, 214 [74 Cal.Rptr.3d 570, 180 P.3d 321].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1060,
1061
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-A, Overview
Of Key Statutes, ¶ 12:32 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:146,
12:390, 12:421, 12:857, 12:1201, 12:1300 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee
Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, §§ 8.25[2],
8.30[1], [2], 8.31[2], 8.32 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][a], [b] (Matthew Bender)
California Civil Practice: Employment Litigation § 5:40 (Thomson Reuters)
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2601. Eligibility
To show that [he/she/nonbinary pronoun] was eligible for [family care/
medical] leave, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was an employee of [name of defendant];
[2. That [name of defendant] directly employed five or more
employees for a wage or salary;]
3. That at the time [name of plaintiff] [requested/began] leave, [he/
she/nonbinary pronoun] had more than 12 months of service with
[name of defendant] and had worked at least 1,250 hours for [name
of defendant] during the previous 12 months; and
4. That at the time [name of plaintiff] [requested/began] leave [name
of plaintiff] had taken no more than 12 weeks of family care or
medical leave in the 12-month period [define period].
New September 2003; Revised June 2011, May 2021
Directions for Use
The CFRA applies to employers who directly employ five or more employees (and
to the state and any political or civil subdivision of the state and cities of any size).
(Gov. Code, § 12945.2(b)(3).) Include element 2 only if there is a factual dispute
about the number of people the defendant directly employed for a wage or salary.
Sources and Authority
• Right to Family Care and Medical Leave. Government Code section 12945.2(a).
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-A, Overview
of Key Leave Laws, ¶ 12:32 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:87, 12:125,
12:390, 12:421, 12:1201, 12:1300 (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][c] (Matthew Bender)
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2602. Reasonable Notice by Employee of Need for CFRA Leave
For notice of the need for leave to be reasonable, [name of plaintiff] must
make [name of defendant] aware that [he/she/nonbinary pronoun] needs
[family care/medical] leave, when the leave will begin, and how long it is
expected to last. The notice can be verbal or in writing and does not
need to mention the law. An employer cannot require disclosure of any
medical diagnosis, but should ask for information necessary to decide
whether the employee is entitled to leave.
New September 2003; Revised May 2021
Sources and Authority
• Reasonable Notice Required. Government Code section 12945.2(g).
• Additional Requirements. Government Code section 12945.2(h)–(j).
• CFRA Notice Requirements. California Code of Regulations, title 2, section
11091.
• “In enacting CFRA ‘the Legislature expressly delegated to [California’s Fair
Employment and Housing] Commission the task of “adopt[ing] a regulation
specifying the elements of a reasonable request” for CFRA leave.’ The regulation
adopted by the commission provides, in part, to request CFRA leave an
employee ‘shall provide at least verbal notice sufficient to make the employer
aware that the employee needs CFRA leave, and the anticipated timing and
duration of the leave. The employee need not expressly assert rights under
CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice
requirement; however, the employee must state the reason the leave is needed,
such as, for example, the expected birth of a child or for medical
treatment. . . . The employer should inquire further of the employee if necessary
to determine whether the employee is requesting CFRA leave and to obtain
necessary information concerning the leave (i.e., commencement date, expected
duration, and other permissible information).’ The regulation further provides,
‘Under all circumstances, it is the employer’s responsibility to designate leave,
paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information
provided by the employee . . . , and to give notice of the designation to the
employee.’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th
570, 602–603 [210 Cal.Rptr.3d 59], quoting Cal. Code Regs., tit. 2,
§ 11091(a)(1), internal citations omitted.)
• “The employee must ‘provide at least verbal notice sufficient to make the
employer aware that the employee needs CFRA-qualifying leave, and the
anticipated timing and duration of the leave. The employer in turn is charged
with responding to the leave request “as soon as practicable and in any event no
later than ten calendar days after receiving the request.’ ” (Olofsson v. Mission
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CALIFORNIA FAMILY RIGHTS ACT CACI No. 2602
Linen Supply (2012) 211 Cal.App.4th 1236, 1241 [150 Cal.Rptr.3d 446], internal
citations omitted.)
• “[Cal. Code Regs., tit. 2, § 11091(a)(1)] appears to presume the existence of
circumstances in which an employee is able to provide an employer with notice
of the need for leave. Indeed, the regulation permits employers to ‘require that
employees provide at least 30 days’ advance notice before CFRA leave is to
begin if the need for the leave is foreseeable based on an expected birth,
placement for adoption or foster care, or planned medical treatment for a serious
health condition of the employee or a family member.’ However, the regulations
provide that this 30-day general rule is inapplicable when the need for medical
leave is not foreseeable: ‘If 30 days’ notice is not practicable, such as because of
a lack of knowledge of approximately when leave will be required to begin, a
change in circumstances, or a medical emergency, notice must be given as soon
as practicable.’ Further, ‘[a]n employer shall not deny a CFRA leave, the need
for which is an emergency or is otherwise unforeseeable, on the basis that the
employee did not provide advance notice of the need for the leave, so long as
the employee provided notice to the employer as soon as practicable.’ ” (Bareno
v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 563 [212
Cal.Rptr.3d 682], original italics; see Cal. Code Regs. tit. 2, § 11091(a)(2)–(4).)
• “When viewed as a whole, it is clear that CFRA and its implementing
regulations envision a scheme in which employees are provided reasonable time
within which to request leave for a qualifying purpose, and to provide the
supporting certification to demonstrate that the requested leave was, in fact, for a
qualifying purpose, particularly when the need for leave is not foreseeable or
when circumstances have changed subsequent to an initial request for leave.”
(Bareno, supra, 7 Cal.App.5th at p. 565.)
• “[A]n employer bears a burden, under CFRA, to inquire further if an employee
presents the employer with a CFRA-qualifying reason for requesting leave.”
(Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 249
[206 Cal.Rptr.3d 841].)
• “Whether notice is sufficient under CFRA is a question of fact.” (Soria, supra, 5
Cal.App.5th at p. 603.)
• “That plaintiff called in sick was, by itself, insufficient to put [defendant] on
notice that he needed CFRA leave for a serious health condition.” (Avila v.
Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255 [82 Cal.Rptr.3d
440].)
• “The regulations thus expressly contemplate that an employee may be out on
CFRA-protected leave prior to providing medical certification regarding that
leave.” (Bareno, supra, 7 Cal.App.5th at p. 568, original italics; see Cal. Code
Regs., tit. 2, § 11091(b)(3).)
• “CFRA establishes that a certification issued by an employee’s health provider is
sufficient if it includes ‘[t]he date on which the serious health condition
commenced’; ‘[t]he probable duration of the condition’; and ‘[a] statement that,
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due to the serious health condition, the employee is unable to perform the
function of his or her position.’ ” (Bareno, supra, 7 Cal.App.5th at pp. 569–570.)
• “[A]n employee need not share his or her medical condition with the employer,
and a certification need not include such information to be considered sufficient:
‘For medical leave for the employee’s own serious health condition, this
certification need not, but may, at the employee’s option, identify the serious
health condition involved.’ ” (Bareno, supra, 7 Cal.App.5th at p. 570, fn. 18,
original italics.)
• “Under the CFRA regulations, the employer has a duty to respond to the leave
request within 10 days, but clearly and for good reason the law does not specify
that the response must be tantamount to approval or denial.” (Olofsson, supra,
211 Cal.App.4th at p. 1249.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA),
¶¶ 12:852–12:853, 12:855–12:857 (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][e] (Matthew Bender)
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2603. “Comparable Job” Explained
“Comparable job” means a job that is the same or close to the
employee’s former job in responsibilities, duties, pay, benefits, working
conditions, and schedule. It must be at the same location or a similar
geographic location.
New September 2003; Revised May 2021
Directions for Use
Give this instruction only if comparable job is an issue under the plaintiff’s CFRA
claim.
Sources and Authority
• Comparable Position. Government Code section 12945.2(b)(5).
• Comparable Position. Cal. Code Regs., tit. 2, § 11087(g).
• “[W]hile we will accord great weight and respect to the [Fair Employment and
Housing Commission]’s regulations that apply to the necessity for leave, along
with any applicable federal FMLA regulations that the Commission incorporated
by reference, we still retain ultimate responsibility for construing [CFRA].”
(Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 994–995 [94
Cal.Rptr.2d 643].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act
(CFRA),¶¶ 12:1138–12:1139, 12:1150, 12:1154–12:1156 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.30[1]–[2]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][h] (Matthew Bender)
2604–2609. Reserved for Future Use
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2610. Affirmative Defense—No Certification From Health-Care
Provider
[Name of defendant] claims that [he/she/nonbinary pronoun/it] denied
[name of plaintiff]’s request for leave because [he/she/nonbinary pronoun]
did not provide a health-care provider’s certification of
[his/her/nonbinary pronoun] need for leave. To succeed, [name of
defendant] must prove both of the following:
1. That [name of defendant] told [name of plaintiff] in writing that
[he/she/nonbinary pronoun/it] required written certification from
[name of plaintiff]’s health-care provider to [grant/extend] leave;
and
2. That [name of plaintiff] did not provide [name of defendant] with
the required certification from a health-care provider [within the
time set by [name of defendant] or as soon as reasonably possible].
New September 2003
Directions for Use
The time set by the defendant described in element 2 must be at least 15 days.
Sources and Authority
• Certification of Health Care Provider. Government Code section 12945.2(j).
• Certification of Health Care Provider: Child Care. Government Code section
12945.2(i).
• Certification of Health Care Provider: Return to Work. Government Code section
12945.2(j)(4).
• “Health Care Provider” Defined. Government Code section 12945.2(b)(9).
• Notice and Certification. Cal. Code Regs., tit. 2, § 11088(b).
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1056–1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:311,
12::880, 12:883–12:884, 12:905, 12:915 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.26 (Matthew
Bender)
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2611. Affirmative Defense—Fitness for Duty Statement
[Name of defendant] claims that [he/she/nonbinary pronoun/it] refused to
return [name of plaintiff] to work because [he/she/nonbinary pronoun] did
not provide a written statement from [his/her/nonbinary pronoun] health-
care provider that [he/she/nonbinary pronoun] was fit to return to work.
To succeed, [name of defendant] must prove both of the following:
1. That [name of defendant] has a uniformly applied practice or
policy that requires employees on leave because of their own
serious health condition to provide a written statement from their
health-care provider that they are able to return to work; and
2. That [name of plaintiff] did not provide [name of defendant] with a
written statement from [his/her/nonbinary pronoun] health-care
provider of [his/her/nonbinary pronoun] fitness to return to work.
New September 2003
Sources and Authority
• Certification on Health Care Provider: Child Care. Government Code section
12945.2(i).
• Certification of Health Care Provider: Return to Work. Government Code section
12945.2(j)(4).
• “Health Care Provider” Defined. Government Code section 12945.2(b)(9).
• Notice and Certification. Cal. Code Regs., tit. 2, § 11088(b).
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1056–1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:311,
12:880, 12:884, 12:915 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.26 (Matthew
Bender)
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2612. Affirmative Defense—Employment Would Have Ceased
[Name of defendant] claims that [he/she/nonbinary pronoun/it] was not
required to allow [name of plaintiff] to return to work when
[his/her/nonbinary pronoun] [family care/medical] leave was over because
[his/her/nonbinary pronoun] employment would have ended for other
reasons. To succeed, [name of defendant] must prove both of the
following:
1. That [name of defendant] would have [discharged/laid off] [name of
plaintiff] if [he/she/nonbinary pronoun] had continued to work
during the leave period; and
2. That [name of plaintiff]’s [family care/medical] leave was not a
reason for [discharging [him/her/nonbinary pronoun]/laying [him/
her/nonbinary pronoun] off].
An employee on [family care/medical] leave has no greater right to the
employee’s job or to other employment benefits than if that employee
had continued working during the leave.
New September 2003; Revised May 2020
Sources and Authority
• Limitations of Right to Reinstatement. Cal. Code Regs., tit. 2, § 11089(c)(1).
• “Section 11089, subdivision (c)(1) states in part: ‘An employee has no greater
right to reinstatement or to other benefits . . . of employment than if the
employee had been continuously employed during the CFRA leave period.’ This
defense is qualified, however, by the requirement that ‘[a]n employer has the
burden of proving, by a preponderance of the evidence, that an employee would
not otherwise have been employed at the time reinstatement is requested in order
to deny reinstatement.’ ” (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 919
[182 Cal. Rptr. 3d 644, 341 P.3d 438].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1189,
12:1191 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.30[4]
(Matthew Bender)
2613–2619. Reserved for Future Use
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2620. CFRA Rights Retaliation—Essential Factual Elements (Gov.
Code, § 12945.2(k))
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] for [[requesting/taking] [family care/medical]
leave/[other protected activity]]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] was eligible for [family care/medical]
leave;
2. That [name of plaintiff] [[requested/took] [family care/medical]
leave/[other protected activity]];
3. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
4. That [name of plaintiff]’s [[request for/taking of] [family
care/medical] leave/[other protected activity]] was a substantial
motivating reason for [discharging/[other adverse employment
action]] [him/her/nonbinary pronoun];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s retaliatory conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2012, June 2013, May 2018, May 2021
Directions for Use
Use this instruction in cases of alleged retaliation for an employee’s exercise of
rights granted by the California Family Rights Act (CFRA). (See Gov. Code,
§ 12945.2(k).) The instruction assumes that the defendant is plaintiff’s present or
former employer, and therefore it must be modified if the defendant is a prospective
employer or other person.
The “other protected activity” option of the opening paragraph and elements 2 and 4
could be providing information or testimony in an inquiry or a proceeding related to
CFRA rights. (Gov. Code, § 12945.2(k).
The CFRA reaches a broad range of adverse employment actions short of actual
discharge. (See Gov. Code, § 12945.2(k).) Element 3 may be modified to allege
constructive discharge or adverse acts other than actual discharge. See CACI No.
2509, “Adverse Employment Action” Explained, and CACI No. 2510, “Constructive
Discharge” Explained, for instructions under the Fair Employment and Housing Act
that may be adapted for use with this instruction.
Element 4 uses the term “substantial motivating reason” to express both intent and
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CACI No. 2620 CALIFORNIA FAMILY RIGHTS ACT
causation between the employee’s exercise of a CFRA right and the adverse
employment action. “Substantial motivating reason” has been held to be the
appropriate standard under the discrimination prohibitions of the Fair Employment
and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether this standard applies to CFRA retaliation
cases has not been addressed by the courts.
Sources and Authority
• Retaliation Prohibited Under California Family Rights Act. Government Code
section 12945.2(k), (q).
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• “The elements of a cause of action for retaliation in violation of CFRA are “ ‘(1)
the defendant was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to
take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an
adverse employment action, such as termination, fine, or suspension, because of
her exercise of her right to CFRA [leave].” ’ ” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 604 [210 Cal.Rptr.3d 59].)
• “Similar to causes of action under FEHA, the McDonnell Douglas burden
shifting analysis applies to retaliation claims under CFRA.” (Moore v. Regents of
University of California (2016) 248 Cal.App.4th 216, 248 [206 Cal.Rptr.3d
841].)
• “ ‘When an adverse employment action “follows hard on the heels of protected
activity, the timing often is strongly suggestive of retaliation.” ’ ” (Bareno v. San
Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571 [212 Cal.Rptr.3d
682].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1058–1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1300,
12:1301 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee
Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.32 (Matthew
Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][c] (Matthew Bender)
2621–2699. Reserved for Future Use
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VF-2600. Violation of CFRA Rights
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] eligible for family care or medical leave?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] [request/take] leave for the birth of [his/
her/nonbinary pronoun] child or bonding with the child?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] provide reasonable notice to [name of
defendant] of [his/her/nonbinary pronoun] need for [family care/
medical] leave?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [refuse to grant [name of plaintiff]’s
request for [family care/medical] leave] [refuse to return [name of
plaintiff] to the same or a comparable job when [his/her/nonbinary
pronoun] [family care/medical] leave ended] [other violation of
CFRA rights]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s [decision/conduct] a substantial factor
in causing harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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VF-2600 CALIFORNIA FAMILY RIGHTS ACT
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2600, Violation of CFRA Rights—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations can be substituted in question 2 as in element 2 of CACI
No. 2600.
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CALIFORNIA FAMILY RIGHTS ACT VF-2600
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2601. Violation of CFRA Rights—Affirmative
Defense—Employment Would Have Ceased
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] eligible for family care or medical leave?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] [request/take] leave for the birth of [his/
her/nonbinary pronoun] child or bonding with the child?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] provide reasonable notice to [name of
defendant] of [his/her/nonbinary pronoun] need for [family care/
medical] leave?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] refuse to return [name of plaintiff] to the
same or to a comparable job when [his/her/nonbinary pronoun]
[family care/medical] leave ended?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Would [name of defendant] have [discharged/laid off] [name of
plaintiff] if [he/she/nonbinary pronoun] had continued to work
during the leave period?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Was [name of defendant]’s [decision/conduct] a substantial factor
in causing harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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VF-2601 CALIFORNIA FAMILY RIGHTS ACT
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2600, Violation of CFRA Rights—Essential
Factual Elements, and CACI No. 2612, Affırmative Defense—Employment Would
Have Ceased. If a different affirmative defense is at issue, this form should be
tailored accordingly.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations can be substituted in question 2 as in element 2 of CACI
No. 2600.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2602. CFRA Rights Retaliation
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] eligible for family care or medical leave?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] [[request/take] [family care/medical] leave/
[other protected activity]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] [discharge/[other adverse employment
action]] [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff]’s [[request for/taking] [family
care/medical] leave/[other protected activity]] a substantial
motivating reason for [name of defendant]’s decision to [discharge/
[other adverse employment action]]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s retaliatory conduct a substantial factor
in causing harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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VF-2602 CALIFORNIA FAMILY RIGHTS ACT
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2620, CFRA Rights Retaliation—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
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especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2603–VF-2699. Reserved for Future Use
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Copyright Judicial Council of California
LABOR CODE ACTIONS
2700. Nonpayment of Wages—Essential Factual Elements (Lab. Code, §§ 201,
202, 218)
2701. Nonpayment of Minimum Wage—Essential Factual Elements (Lab. Code,
§ 1194)
2702. Nonpayment of Overtime Compensation—Essential Factual Elements (Lab.
Code, § 1194)
2703. Nonpayment of Overtime Compensation—Proof of Overtime Hours Worked
2704. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
2705. Independent Contractor—Affirmative Defense—Worker Was Not Hiring
Entity’s Employee (Lab. Code, § 2775)
2706–2709. Reserved for Future Use
2710. Solicitation of Employee by Misrepresentation—Essential Factual Elements
(Lab. Code, § 970)
2711. Preventing Subsequent Employment by Misrepresentation—Essential Factual
Elements (Lab. Code, § 1050)
2712–2719. Reserved for Future Use
2720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption
2721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption
2722–2731. Reserved for Future Use
2732. Retaliatory Unfair Immigration-Related Practice—Essential Factual Elements
(Lab. Code, § 1019)
2733–2739. Reserved for Future Use
2740. Violation of Equal Pay Act—Essential Factual Elements (Lab. Code,
§ 1197.5)
2741. Affirmative Defense—Different Pay Justified
2742. Bona Fide Factor Other Than Sex, Race, or Ethnicity
2743. Equal Pay Act—Retaliation—Essential Factual Elements (Lab. Code,
§ 1197.5(k))
2744–2749. Reserved for Future Use
2750. Failure to Reimburse Employee for Necessary Expenditures or
Losses—Essential Factual Elements (Lab. Code, § 2802(a))
2751. Reserved for Future Use
2752. Tip Pool Conversion—Essential Factual Elements (Lab. Code, § 351)
2753. Failure to Pay All Vested Vacation Time—Essential Factual Elements (Lab.
Code, § 227.3)
2754. Reporting Time Pay—Essential Factual Elements
2755–2799. Reserved for Future Use
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LABOR CODE ACTIONS
VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
VF-2702. Nonpayment of Overtime Compensation (Lab. Code, § 1194)
VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203,
218)
VF-2704. Solicitation of Employee by Misrepresentation (Lab. Code, § 970)
VF-2705. Preventing Subsequent Employment by Misrepresentation (Lab. Code,
§ 1050)
VF-2706–VF-2799. Reserved for Future Use
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2700. Nonpayment of Wages—Essential Factual Elements (Lab.
Code, §§ 201, 202, 218)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] unpaid wages. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of plaintiff] performed work for [name of defendant];
2. That [name of defendant] owes [name of plaintiff] wages under the
terms of the employment; and
3. The amount of unpaid wages.
“Wages” includes all amounts for labor performed by an employee,
whether the amount is calculated by time, task, piece, commission, or
some other method.
New September 2003; Revised December 2005, December 2013, June 2015
Directions for Use
This instruction is for use in a civil action for payment of wages. Depending on the
allegations in the case, the definition of “wages” may be modified to include
additional compensation, such as earned vacation, nondiscretionary bonuses, or
severance pay.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of wage orders, adopted by the Industrial Welfare
Commission. All of the wage orders define hours worked as “the time during which
an employee is subject to the control of an employer, and includes all the time the
employee is suffered or permitted to work, whether or not required to do so.”
(Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 137 [239
Cal.Rptr.3d 852]; see, e.g., Wage Order 4-2001, subd. 2(K).) The two parts of the
definition are independent factors, each of which defines whether certain time spent
is compensable as “hours worked.” Thus, an employee who is subject to an
employer’s control does not have to be working during that time to be compensated.
(Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582–584 [94 Cal.Rptr.2d 3,
995 P.2d 139].) Courts have identified various factors bearing on an employer’s
control during on-call time. However, what qualifies as hours worked is a question
of law. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838−840
[182 Cal.Rptr.3d 124, 340 P.3d 355].) Therefore, the jury should not be instructed
on the factors to consider in determining whether the employer has exercised
sufficient control over the employee during the contested period to require
compensation.
However, the jury should be instructed to find any disputed facts regarding the
factors. For example, one factor is whether a fixed time limit for the employee to
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CACI No. 2700 LABOR CODE ACTIONS
respond to a call was unduly restrictive. Whether there was a fixed time limit would
be a disputed fact for the jury. Whether it was unduly restrictive would be a matter
of law for the court.
The court may modify this instruction or write an appropriate instruction if the
defendant employer claims a permissible setoff from the plaintiff employee’s unpaid
wages. Under California Wage Orders, an employer may deduct from an employee’s
wages for cash shortage, breakage, or loss of equipment if the employer proves that
this was caused by a dishonest or willful act or by the gross negligence of the
employee. (See, e.g., Cal. Code Regs., tit. 8, § 11010, subd. 8.)
Sources and Authority
• Right of Action for Wage Claim. Labor Code section 218.
• Wages Due on Discharge. Labor Code section 201.
• Wages Due on Quitting. Labor Code section 202.
• “Wages” Defined, Labor Code section 200.
• Wages Partially in Dispute. Labor Code section 206(a).
• Deductions From Pay. Labor Code section 221, California Code of Regulations,
Title 8, section 11010, subdivision 8.
• Nonapplicability to Government Employers. Labor Code section 220.
• Employer Not Entitled to Release. Labor Code section 206.5.
• Private Agreements Prohibited. Labor Code section 219(a).
• “As an employee, appellant was entitled to the benefit of wage laws requiring an
employer to promptly pay all wages due, and prohibiting the employer from
deducting unauthorized expenses from the employee’s wages, deducting for debts
due the employer, or recouping advances absent the parties’ express agreement.”
(Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1330 [200
Cal.Rptr.3d 315].)
• “The Labor Code’s protections are ‘designed to ensure that employees receive
their full wages at specified intervals while employed, as well as when they are
fired or quit,’ and are applicable not only to hourly employees, but to highly
compensated executives and salespeople.” (Davis, supra, 245 Cal.App.4th at p.
1331, internal citation omitted.)
• “[W]ages include not just salaries earned hourly, but also bonuses, profit-sharing
plans, and commissions.” (Davis, supra, 245 Cal.App.4th at p. 1332, fn. 20.)
• “The Industrial Welfare Commission (IWC) was created in 1913 with express
authority to adopt regulations—called wage orders—governing wages, hours, and
working conditions in the state of California. These wage orders, being the
product of quasi-legislative rulemaking under a broad delegation of legislative
power, are entitled to great deference, and they have the dignity and force of
statutory law.” (Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718,
724–725 [248 Cal.Rptr.3d 891, 443 P.3d 924], internal citations omitted.)
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LABOR CODE ACTIONS CACI No. 2700
• “The two phrases of the definition—‘time during which an employee is subject
to the control of an employer’ and ‘time the employee is suffered or permitted to
work, whether or not required to do so’—establish independent factors that each
define ‘hours worked.’ ‘Thus, an employee who is subject to an employer’s
control does not have to be working during that time to be compensated under
[the applicable wage order].’ The time an employee is ‘ “suffered or permitted to
work, whether or not required to do so,” ’ includes time the employee is working
but not under the employer’s control, such as unauthorized overtime, provided
the employer has knowledge of it.” (Hernandez, supra, 29 Cal.App.5th at p. 137,
internal citations omitted.)
• “[A]n employee’s on-call or standby time may require compensation.”
(Mendiola, supra, 60 Cal.4th at p. 840.)
• “ ‘[T]he standard of “suffered or permitted to work” is met when an employee is
engaged in certain tasks or exertion that a manager would recognize as work.
Mere transportation of tools, which does not add time or exertion to a commute,
does not meet this standard.’ We agree with this construction of the ‘suffer or
permit to work’ test.” (Hernandez, supra, 29 Cal.App.5th at p. 142, internal
citation omitted.)
• “[Labor Code] section 221 has long been held to prohibit deductions from an
employee’s wages for cash shortages, breakage, loss of equipment, and other
business losses that may result from the employee’s simple negligence.”
(Hudgins v. Neiman Marcus Group, Inc. (1995) 34 Cal.App.4th 1109, 1118 [41
Cal.Rptr.2d 46].)
• “[A]n employer is not entitled to a setoff of debts owing it by an employee
against any wages due that employee.” (Barnhill v. Robert Saunders & Co.
(1981) 125 Cal.App.3d 1, 6 [177 Cal.Rptr. 803].)
• “In light of the wage order’s remedial purpose requiring a liberal construction,
its directive to compensate employees for all time worked, the evident priority it
accorded that mandate notwithstanding customary employment arrangements,
and its concern with small amounts of time, we conclude that the de minimis
doctrine has no application under the circumstances presented here. An employer
that requires its employees to work minutes off the clock on a regular basis or as
a regular feature of the job may not evade the obligation to compensate the
employee for that time by invoking the de minimis doctrine.” (Troester v.
Starbucks Corp. 5 Cal.5th 829, 847 [235 Cal.Rptr.3d 820, 421 P.3d 1114].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 437–439
Chin et al., California Practice Guide: Employment Litigation, Ch.1-A, Background,
¶ 1:22 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:121 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.11-D, Payment Of
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Wages, ¶¶ 11:456, 11:470, 11:470.1, 11:512–11:514 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.11-J, Enforcing
California Laws Regulating Employee Compensation, ¶ 11:1459 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies
Under Wage and Hour Laws, § 5.40 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 250.13[1][a], 250.40[3][a], 250.65 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 4:67, 4:75 (Thomson Reuters)
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2701. Nonpayment of Minimum Wage—Essential Factual Elements
(Lab. Code, § 1194)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] the difference between the wages paid by
[name of defendant] and the wages [name of plaintiff] should have been
paid according to the minimum wage rate required by state law. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] performed work for [name of defendant];
2. That [name of plaintiff] was paid less than the minimum wage by
[name of defendant] for some or all hours worked; and
3. The amount of wages owed.
The minimum wage for labor performed from [beginning date] to [ending
date] was [minimum wage rate] per hour.
An employee is entitled to be paid the legal minimum wage rate even if
the employee agrees to work for a lower wage.
New September 2003; Revised June 2005, June 2014, June 2015, May 2020
Directions for Use
The court must determine the prevailing minimum wage rate from applicable state
or federal law. (See, e.g., Cal. Code Regs., tit. 8, § 11000.) The jury must be
instructed accordingly.
Both liquidated damages (See Lab. Code, § 1194.2) and civil penalties (See Lab.
Code, § 1197.1) may be awarded on a claim for nonpayment of minimum wage.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of 18 wage orders, adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) The California Labor Code and the
IWC’s wage orders provide that certain employees are exempt from minimum wage
requirements (for example, outside salespersons; see Lab. Code, § 1171), and that
under certain circumstances employers may claim credits for meals and lodging
against minimum wage pay (see Cal. Code Regs., tit. 8, § 11000, subd. 3, § 11010,
subd. 10, and § 11150, subd. 10(B)). The assertion of an exemption from wage and
hour laws is an affirmative defense. (See generally Ramirez v. Yosemite Water Co.
(1999) 20 Cal.4th 785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) The advisory
committee has chosen not to write model instructions for the numerous fact-specific
affirmative defenses to minimum wage claims. (Cf. CACI No. 2720, Affırmative
Defense—Nonpayment of Overtime—Executive Exemption, and CACI No. 2721,
Affırmative Defense—Nonpayment of Overtime—Administrative Exemption.)
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CACI No. 2701 LABOR CODE ACTIONS
Sources and Authority
• Employee Right to Recover Minimum Wage or Overtime Compensation. Labor
Code section 1194(a).
• Recovery of Liquidated Damages. Labor Code section 1194.2.
• Civil Penalties, Restitution and Liquidated Damages. Labor Code section
1197.1(a).
• “Wages” Defined. Labor Code section 200.
• Payment of Uncontested Wages Required. Labor Code section 206(a).
• Action by Department to Recover Unpaid Minimum Wage or Overtime
Compensation. Labor Code section 1193.6(a).
• Duties of Industrial Welfare Commission. Labor Code section 1173.
• “Labor Code section 1194 accords an employee a statutory right to recover
unpaid wages from an employer who fails to pay the minimum wage.” (Flowers
v. Los Angeles County Metropolitan Transportation Authority (2015) 243
Cal.App.4th 66, 74 [196 Cal.Rptr.3d 352].)
• “Labor Code section 1194 does not define the employment relationship nor does
it specify who may be liable for unpaid wages. Specific employers and
employees become subject to the minimum wage requirements only through and
under the terms of wage orders promulgated by the IWC, the agency formerly
authorized to regulate working conditions in California.” (Flowers, supra, 243
Cal.App.4th at p. 74.)
• “The provision of board, lodging or other facilities may sometimes be considered
in determining whether an employer has met minimum wage requirements for
nonexempt employees.” (Kao v. Holiday (2017) 12 Cal.App.5th 947, 958 [219
Cal.Rptr.3d 580], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 417–421, 437–439
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:121 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment of
Wages, ¶¶ 11:456, 11:513, 11:545 11:547 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment of
Overtime Compensation, ¶ 11:730 et seq. (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶¶ 11:1342, 11:1478.5 (The
Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, §§ 2.02[1], 2.03[1],
2.04[1], 2.05[1]; Ch. 5, Administrative and Judicial Remedies Under Wage and
Hour Laws, § 5.72 (Matthew Bender)
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LABOR CODE ACTIONS CACI No. 2701
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 250.13[1][a], 250.14[d] (Matthew Bender)
California Civil Practice: Employment Litigation §§ 4:67, 4:76 (Thomson Reuters)
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2702. Nonpayment of Overtime Compensation—Essential Factual
Elements (Lab. Code, § 1194)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] overtime pay as required by state law. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] performed work for [name of defendant];
2. That [name of plaintiff] worked overtime hours;
3. That [name of defendant] knew or should have known that [name
of plaintiff] had worked overtime hours;
4. That [name of plaintiff] was [not paid/paid less than the overtime
rate] for some or all of the overtime hours worked; and
5. The amount of overtime pay owed.
Overtime hours are the hours worked longer than [insert applicable
definition(s) of overtime hours].
Overtime pay is [insert applicable formula].
An employee is entitled to be paid the legal overtime pay rate even if the
employee agrees to work for a lower rate.
New September 2003; Revised June 2005, June 2014, June 2015, May 2020,
November 2021
Directions for Use
The court must determine the overtime compensation rate under applicable state or
federal law. (See, e.g., Lab. Code, §§ 1173, 1182; Cal. Code Regs., tit. 8, § 11000,
subd. 2, § 11010, subd. 4(A), and § 11150, subd. 4(A).) If an employee earns a flat
sum bonus during a pay period, under state law the overtime pay rate is calculated
using the actual number of nonovertime hours worked by the employee during the
pay period. (Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542,
573 [229 Cal.Rptr.3d 347, 411 P.3d 528].) The jury must be instructed on the
applicable overtime pay formula. It is possible that the overtime rate will be
different over different periods of time.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code, and a series of 18 wage orders adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2014) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) Both the Labor Code and the IWC wage
orders provide for certain exemptions from overtime laws. (See, e.g., Lab. Code,
§ 1171 [outside salespersons are exempt from overtime requirements]). The assertion
of an employee’s exemption is an affirmative defense, which presents a mixed
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LABOR CODE ACTIONS CACI No. 2702
question of law and fact. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794
[85 Cal.Rptr.2d 844, 978 P.2d 2].) For instructions on exemptions, see CACI No.
2720, Affırmative Defense—Nonpayment of Overtime—Executive Exemption, and
CACI No. 2721, Affırmative Defense—Nonpayment of Overtime—Administrative
Exemption.
Sources and Authority
• Employee Right to Recover Minimum Wage or Overtime Compensation. Labor
Code section 1194(a).
• Recovery of Liquidated Damages. Labor Code section 1194.2.
• “Wages” Defined. Labor Code section 200.
• Payment of Uncontested Wages Required. Labor Code section 206(a).
• What Hours Worked Are Overtime. Labor Code section 510.
• Rate of Compensation. Labor Code section 515(d).
• Action by Department to Recover Unpaid Minimum Wage or Overtime
Compensation. Labor Code section 1193.6(a).
• “[T]he assertion of an exemption from the overtime laws is considered to be an
affirmative defense, and therefore the employer bears the burden of proving the
employee’s exemption.” (Ramirez, supra, 20 Cal.4th at pp. 794–795.)
• “[W]here an employer has no knowledge that an employee is engaging in
overtime work and that employee fails to notify the employer or deliberately
prevents the employer from acquiring knowledge of the overtime work, the
employer’s failure to pay for the overtime hours is not a violation . . . .” (Jong
v. Kaiser Foundation Health Plan, Inc. (2014) 226 Cal.App.4th 391, 395 [171
Cal.Rptr.3d 874] [applying rule under federal Fair Labor Standards Act to claims
under California Labor Code].)
• “[A]n employer’s actual or constructive knowledge of the hours its employees
work is an issue of fact . . . .” (Jong, supra, 226 Cal.App.4th at p. 399.)
• “The question whether [plaintiff] was an outside salesperson within the meaning
of applicable statutes and regulations is . . . a mixed question of law and fact.”
(Ramirez, supra, 20 Cal.4th at p. 794.)
• “The FLSA [federal Fair Labor Standards Act] requires overtime pay only if an
employee works more than 40 hours per week, regardless of the number of
hours worked during any one day. California law, codified at Labor Code section
510, is more stringent and requires overtime compensation for ‘[a]ny work in
excess of eight hours in one workday and any work in excess of 40 hours in any
one workweek.’ ” (Flowers v. Los Angeles County Metropolitan Transportation
Authority (2015) 243 Cal.App.4th 66, 83 [196 Cal.Rptr.3d 352], internal citation
omitted.)
• “We conclude that the flat sum bonus at issue here should be factored into an
employee’s regular rate of pay by dividing the amount of the bonus by the total
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number of nonovertime hours actually worked during the relevant pay period
and using 1.5, not 0.5, as the multiplier for determining the employee’s overtime
pay rate.” (Alvarado, supra, 4 Cal.5th at p. 573.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 417, 420, 421, 437, 438, 439
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment
Of Wages, ¶¶ 11:456, 11:470.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment Of
Overtime Compensation, ¶¶ 11:730, 11:955 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶¶ 11:1342, 11:1478.5 (The
Rutter Group)
1 Wilcox, California Employment Law, Ch. 3, Overtime Compensation and
Regulation of Hours Worked, §§ 3.03[1], 3.04[1], 3.07[1], 3.08[1], 3.09[1]; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.72 (Matthew
Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.40 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:76 (Thomson Reuters)
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2703. Nonpayment of Overtime Compensation—Proof of Overtime
Hours Worked
State law requires California employers to keep payroll records showing
the hours worked by and wages paid to employees.
If [name of defendant] did not keep accurate records of the hours worked
by [name of plaintiff], then [name of plaintiff] may prove the number of
overtime hours worked by making a reasonable estimate of those hours.
In determining the amount of overtime hours worked, you may consider
[name of plaintiff]’s estimate of the number of overtime hours worked
and any evidence presented by [name of defendant] that [name of
plaintiff]’s estimate is unreasonable.
New September 2003; Revised June 2005, December 2005, November 2019
Directions for Use
This instruction is intended for use when a nonexempt employee plaintiff is unable
to provide evidence of the precise number of hours worked because of the
employer’s failure to keep accurate payroll records. (See Hernandez v. Mendoza
(1988) 199 Cal.App.3d 721, 727–728 [245 Cal.Rptr. 36].)
Sources and Authority
• Right of Action for Unpaid Overtime. Labor Code section 1194(a).
• Employer Duty to Keep Payroll Records. Labor Code section 1174(d).
• “[W]here the employer has failed to keep records required by statute, the
consequences for such failure should fall on the employer, not the employee. In
such a situation, imprecise evidence by the employee can provide a sufficient
basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th
1072, 1079 [242 Cal.Rptr.3d 144].)
• “[W]here the employer has failed to keep records required by statute, the
consequences for such failure should fall on the employer, not the employee. In
such a situation, imprecise evidence by the employee can provide a sufficient
basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th
1072, 1079 [242 Cal.Rptr.3d 144].)
• “Although the employee has the burden of proving that he performed work for
which he was not compensated, public policy prohibits making that burden an
impossible hurdle for the employee. . . . ‘In such situation . . . an employee
has carried out his burden if he proves that he has in fact performed work for
which he was improperly compensated and if he produces sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable
inference. The burden then shifts to the employer to come forward with evidence
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CACI No. 2703 LABOR CODE ACTIONS
of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s evidence. If the
employer fails to produce such evidence, the court may then award damages to
the employee, even though the result be only approximate.’ ” (Hernandez, supra,
199 Cal.App.3d at p. 727, internal citation omitted.)
• “Once an employee shows that he performed work for which he was not paid,
the fact of damage is certain; the only uncertainty is the amount of damage.
[Citation.] In such a case, it would be a perversion of justice to deny all relief to
the injured person, thereby relieving the wrongdoer from making any restitution
for his wrongful act.” (Furry, supra, 30 Cal.App.5th at p. 1080, original italics.)
• “That [plaintiff] had to draw his time estimates from memory was no basis to
completely deny him relief.” (Furry, supra, 30 Cal.App.5th at p. 1081.)
• “It is the trier of fact’s duty to draw whatever reasonable inferences it can from
the employee’s evidence where the employer cannot provide accurate
information.” (Hernandez, supra, 199 Cal.App.3d at p. 728, internal citation
omitted.)
• “Absent an explicit, mutual wage agreement, a fixed salary does not serve to
compensate an employee for the number of hours worked under statutory
overtime requirements. . . . [¶] Since there was no evidence of a wage
agreement between the parties that appellant’s . . . per week compensation
represented the payment of minimum wage or included remuneration for hours
worked in excess of 40 hours per week, . . . appellant incurred damages of
uncompensated overtime.” (Hernandez, supra, 199 Cal.App.3d at pp. 725–726,
internal citations omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment of
Wages, ¶ 11:456 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment of
Overtime Compensation, ¶ 11:955 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶ 11:1478.5 (The Rutter
Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies
Under Wage and Hour Laws, § 5.72[1] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.40 (Matthew Bender)
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2704. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code,
§§ 203, 218)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] is entitled to
recover a penalty based on [name of defendant]’s failure to pay [his/her/
nonbinary pronoun] [wages/insert other claim] when due after [name of
plaintiff]’s employment ended. [Name of defendant] was required to pay
[name of plaintiff] all wages owed [on the date that/within 72 hours of the
date that] [name of plaintiff]’s employment ended.
You must decide whether [name of plaintiff] has proved [he/she/nonbinary
pronoun] is entitled to recover a penalty. I will decide the amount of the
penalty, if any, to be imposed. To recover this penalty, [name of plaintiff]
must prove both of the following:
1. That [name of plaintiff]’s employment with [name of defendant]
ended; and
2. That [name of defendant] willfully failed to pay [name of plaintiff]
all wages when due.
The term “willfully” means only that the employer intentionally failed or
refused to pay the wages. It does not imply a need for any additional
bad motive.
[Name of plaintiff] must also prove the following:
1. [Name of plaintiff]’s daily wage rate at the time [his/her/nonbinary
pronoun] employment with [name of defendant] ended; and
2. [The date on which [name of defendant] finally paid [name of
plaintiff] all wages due/That [name of defendant] never paid [name
of plaintiff] all wages].
[The term “wages” includes all amounts for labor performed by an
employee, whether the amount is calculated by time, task, piece,
commission, or some other method.]
New September 2003; Revised June 2005, May 2019, May 2020, November 2021
Directions for Use
The first part of this instruction sets forth the elements required to obtain a waiting
time penalty under Labor Code section 203. The second part is intended to instruct
the jury on the facts required to assist the court in calculating the amount of waiting
time penalties. Some or all of these facts may be stipulated, in which case they may
be omitted from the instruction. Select between the factual scenarios in element 2 of
the second part: the employer eventually paid all wages due or the employer never
paid the wages due.
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The court must determine when final wages are due based on the circumstances of
the case and applicable law. (See Lab. Code, §§ 201, 202.) Final wages are
generally due on the day an employee is discharged by the employer (Lab. Code,
§ 201(a)), but are not due for 72 hours if an employee quits without notice. (Lab.
Code, § 202(a).)
If there is a factual dispute, for example, whether plaintiff gave advance notice of
the intention to quit, or whether payment of final wages by mail was authorized by
plaintiff, the court may be required to give further instruction to the jury.
The definition of “wages” may be deleted if it is included in other instructions.
Sources and Authority
• Wages of Discharged Employee Due Immediately. Labor Code section 201.
• Wages of Employee on Quitting. Labor Code section 202.
• Willful Failure to Pay Wages of Discharged Employee. Labor Code section 203.
• Right of Action for Unpaid Wages. Labor Code section 218.
• “Wages” Defined. Labor Code section 200.
• Payment for Accrued Vacation of Terminated Employee. Labor Code section
227.3.
• Wages Partially in Dispute. Labor Code section 206(a).
• Exemption for Certain Governmental Employers. Labor Code section 220(b).
• “Labor Code section 203 empowers a court to award ‘an employee who is
discharged or who quits’ a penalty equal to up to 30 days’ worth of the
employee’s wages ‘[i]f an employer willfully fails to pay’ the employee his full
wages immediately (if discharged) or within 72 hours (if he or she quits). It is
called a waiting time penalty because it is awarded for effectively making the
employee wait for his or her final paycheck. A waiting time penalty may be
awarded when the final paycheck is for less than the applicable wage—whether
it be the minimum wage, a prevailing wage, or a living wage.” (Diaz v. Grill
Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 867 [233 Cal.Rptr.3d 524],
original italics, internal citations omitted.)
• “ ‘[T]he public policy in favor of full and prompt payment of an employee’s
earned wages is fundamental and well established . . .’ and the failure to timely
pay wages injures not only the employee, but the public at large as well. We
have also recognized that sections 201, 202, and 203 play an important role in
vindicating this public policy. To that end, the Legislature adopted the penalty
provision as a disincentive for employers to pay final wages late. It goes without
saying that a longer statute of limitations for section 203 penalties provides
additional incentive to encourage employers to pay final wages in a prompt
manner, thus furthering the public policy.” (Pineda v. Bank of America, N.A.
(2010) 50 Cal.4th 1389, 1400 [117 Cal.Rptr.3d 377, 241 P.3d 870], internal
citations omitted.)
• “ ‘The plain purpose of [Labor Code] sections 201 and 203 is to compel the
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immediate payment of earned wages upon a discharge.’ The prompt payment of
an employee’s earned wages is a fundamental public policy of this state.” (Kao
v. Holiday (2017) 12 Cal.App.5th 947, 962 [219 Cal.Rptr.3d 580], internal
citation omitted.)
• “The statutory policy favoring prompt payment of wages applies to employees
who retire, as well as those who quit for other reasons.” (McLean v. State (2016)
1 Cal.5th 615, 626–627 [206 Cal.Rptr.3d 545, 377 P.3d 796].)
• “[A]n employer may not delay payment for several days until the next regular
pay period. Unpaid wages are due immediately upon discharge. This requirement
is strictly applied and may not be ‘undercut’ by company payroll practices or
‘any industry habit or custom to the contrary.’ ” (Kao, supra, 12 Cal.App.5th at
p. 962, original italics, internal citation omitted.)
• “ ‘ “[T]o be at fault within the meaning of [section 203], the employer’s refusal
to pay need not be based on a deliberate evil purpose to defraud workmen of
wages which the employer knows to be due. As used in section 203, ‘willful’
merely means that the employer intentionally failed or refused to perform an act
which was required to be done.” . . .’ ” (Gonzalez v. Downtown LA Motors, LP
(2013) 215 Cal.App.4th 36, 54 [155 Cal.Rptr.3d 18].)
• “In civil cases the word ‘willful’ as ordinarily used in courts of law, does not
necessarily imply anything blameable, or any malice or wrong toward the other
party, or perverseness or moral delinquency, but merely that the thing done or
omitted to be done, was done or omitted intentionally. It amounts to nothing
more than this: That the person knows what he is doing, intends to do what he is
doing, and is a free agent.” (Nishiki v. Danko Meredith, P.C. (2018) 25
Cal.App.5th 883, 891 [236 Cal.Rptr.3d 626].)
• “[A]n employer’s reasonable, good faith belief that wages are not owed may
negate a finding of willfulness.” (Choate v. Celite Corp. (2013) 215 Cal.App.4th
1460, 1468 [155 Cal.Rptr.3d 915].)
• “A ‘good faith dispute’ that any wages are due occurs when an employer
presents a defense, based in law or fact which, if successful, would preclude any
recover[y] on the part of the employee. The fact that a defense is ultimately
unsuccessful will not preclude a finding that a good faith dispute did exist.”
(Kao, supra, 12 Cal.App.5th at p. 963.)
• “A ‘good faith dispute’ excludes defenses that ‘are unsupported by any evidence,
are unreasonable, or are presented in bad faith.’ Any of the three precludes a
defense from being a good faith dispute. Thus, [defendant]’s good faith does not
cure the objective unreasonableness of its challenge or the lack of evidence to
support it.” (Diaz, supra, 23 Cal.App.5th at pp. 873–874, original italics, internal
citations omitted.)
• “A proper reading of section 203 mandates a penalty equivalent to the
employee’s daily wages for each day he or she remained unpaid up to a total of
30 days. . . . [¶] [T]he critical computation required by section 203 is the
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calculation of a daily wage rate, which can then be multiplied by the number of
days of nonpayment, up to 30 days.” (Mamika v. Barca (1998) 68 Cal.App.4th
487, 493 [80 Cal.Rptr.2d 175].)
• “ ‘A tender of the wages due at the time of the discharge, if properly made and
in the proper amount, terminates the further accumulation of penalty, but it does
not preclude the employee from recovering the penalty already accrued.’ ”
(Oppenheimer v. Sunkist Growers, Inc. (1957) 153 Cal.App.2d Supp. 897, 899
[315 P.2d 116], citation omitted.)
• “[Plaintiff] fails to distinguish between a request for statutory penalties provided
by the Labor Code for employer wage-and-hour violations, which were
recoverable directly by employees well before the Act became part of the Labor
Code, and a demand for ‘civil penalties,’ previously enforceable only by the
state’s labor law enforcement agencies. An example of the former is section 203,
which obligates an employer that willfully fails to pay wages due an employee
who is discharged or quits to pay the employee, in addition to the unpaid wages,
a penalty equal to the employee’s daily wages for each day, not exceeding 30
days, that the wages are unpaid.” (Caliber Bodyworks, Inc. v. Superior Court
(2005) 134 Cal.App.4th 365, 377–378 [36 Cal.Rptr.3d 31].)
• “In light of the unambiguous statutory language, as well as the practical
difficulties that would arise under defendant’s interpretation, we conclude there is
but one reasonable construction: section 203(b) contains a single, three-year
limitations period governing all actions for section 203 penalties irrespective of
whether an employee’s claim for penalties is accompanied by a claim for unpaid
final wages.” (Pineda, supra, 50 Cal.4th at p. 1398.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 437–439
Chin et al., California Practice Guide: Employment Litigation, Ch. 1-A,
Introduction—Background, ¶ 1:22 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B,
Compensation—Coverage and Exemptions—In General, ¶ 11:121 (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D,
Compensation—Payment of Wages, ¶¶ 11:456, 11:470.1, 11:510, 11:513–11:515 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J,
Compensation—Enforcing California Laws Regulating Employee Compensation,
¶¶ 11:1458–11:1459, 11:1461–11:1461.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B,
Remedies—Contract Damages, ¶ 17:148 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies
Under Wage and Hour Laws, § 5.40 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
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Hour Disputes, § 250.16[2][d] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:74 (Thomson Reuters)
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2705. Independent Contractor—Affirmative Defense—Worker Was
Not Hiring Entity’s Employee (Lab. Code, § 2775)
[Name of defendant] claims that [name of plaintiff] was not
[his/her/nonbinary pronoun/its] employee, but rather an independent
contractor. To establish that [name of plaintiff] was an independent
contractor, [name of defendant] must prove all of the following:
1. That [name of plaintiff] is under the terms of the contract and in
fact free from the control and direction of [name of defendant] in
connection with the performance of the work that [name of
plaintiff] was hired to do;
2. That [name of plaintiff] performs work for [name of defendant] that
is outside the usual course of [name of defendant]’s business; and
3. That [name of plaintiff] is customarily engaged in an
independently established trade, occupation, or business of the
same nature as that involved in the work performed for [name of
defendant].
New November 2018; Revised May 2020, May 2021, November 2021
Directions for Use
This instruction may be used if a hiring entity claims that the worker is an
independent contractor and not an employee, and is primarily intended for use in
cases involving claims under the Labor Code, the Unemployment Insurance Code,
or a wage order. Any person providing services or labor for remuneration is
presumptively an employee. (Lab. Code, § 2775; see Dynamex Operations West, Inc.
v. Superior Court (2018) 4 Cal.5th 903, 913–914, & fn. 3 [232 Cal.Rptr.3d 1, 416
P.3d 1].) The hiring entity has the burden to prove independent contractor status.
(Lab. Code, § 2775(b)(1); Dynamex, supra, 4 Cal.5th at p. 916.) This instruction
may not be appropriate if the hiring entity claims independent contractor status
based on Proposition 22 (Bus. & Prof. Code, § 7451) or one of the many exceptions
listed in Labor Code sections 2776–2784. For an instruction on employment status
under the Borello test, see CACI No. 3704, Existence of “Employee” Status
Disputed.
The jury decides whether a worker is an employee or an independent contractor
only when there are disputed issues of fact material to the determination. (Espejo v.
The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 342 [221 Cal.Rptr.3d 1].) On
undisputed facts, the court decides whether the relationship is employment as a
matter of law. (Dynamex, supra, 4 Cal.5th at p. 963.)
Sources and Authority
• Worker Status: Employees. Labor Code section 2775.
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• “The ABC test presumptively considers all workers to be employees, and permits
workers to be classified as independent contractors only if the hiring business
demonstrates that the worker in question satisfies each of three conditions: (a)
that the worker is free from the control and direction of the hirer in connection
with the performance of the work, both under the contract for the performance
of the work and in fact; and (b) that the worker performs work that is outside
the usual course of the hiring entity’s business; and (c) that the worker is
customarily engaged in an independently established trade, occupation, or
business of the same nature as that involved in the work performed.” (Dynamex,
supra, 4 Cal.5th at pp. 955–956.)
• “A business that hires any individual to provide services to it can always be said
to knowingly ‘suffer or permit’ such an individual to work for the business. A
literal application of the suffer or permit to work standard, therefore, would
bring within its reach even those individuals hired by a business—including
unquestionably independent plumbers, electricians, architects, sole practitioner
attorneys, and the like—who provide only occasional services unrelated to a
company’s primary line of business and who have traditionally been viewed as
working in their own independent business.” (Dynamex, supra, 4 Cal.5th at pp.
948–949.)
• “A multifactor standard—like the economic reality standard or the Borello
standard—that calls for consideration of all potentially relevant factual
distinctions in different employment arrangements on a case-by-case, totality-of-
the-circumstances basis has its advantages. A number of state courts,
administrative agencies and academic commentators have observed, however,
that such a wide-ranging and flexible test for evaluating whether a worker should
be considered an employee or an independent contractor has significant
disadvantages, particularly when applied in the wage and hour context.”
(Dynamex, supra, 4 Cal.5th at p. 954.)
• “Thus, on the one hand, when a retail store hires an outside plumber to repair a
leak in a bathroom on its premises or hires an outside electrician to install a new
electrical line, the services of the plumber or electrician are not part of the
store’s usual course of business and the store would not reasonably be seen as
having suffered or permitted the plumber or electrician to provide services to it
as an employee. On the other hand, when a clothing manufacturing company
hires work-at-home seamstresses to make dresses from cloth and patterns
supplied by the company that will thereafter be sold by the company, or when a
bakery hires cake decorators to work on a regular basis on its custom-designed
cakes, the workers are part of the hiring entity’s usual business operation and the
hiring business can reasonably be viewed as having suffered or permitted the
workers to provide services as employees. In the latter settings, the workers’ role
within the hiring entity’s usual business operations is more like that of an
employee than that of an independent contractor.” (Dynamex, supra, 4 Cal.5th at
pp. 959–960, internal citations omitted.)
• “A company that labels as independent contractors a class of workers who are
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not engaged in an independently established business in order to enable the
company to obtain the economic advantages that flow from avoiding the
financial obligations that a wage order imposes on employers unquestionably
violates the fundamental purposes of the wage order. The fact that a company
has not prohibited or prevented a worker from engaging in such a business is not
sufficient to establish that the worker has independently made the decision to go
into business for himself or herself.” (Dynamex, supra, 4 Cal.5th at p. 962.)
• “The trial court’s determination of employee or independent contractor status is
one of fact if it depends upon the resolution of disputed evidence or inferences
and, as such, must be affirmed on appeal if supported by substantial evidence.
The question is one of law only if the evidence is undisputed. ‘The label placed
by the parties on their relationship is not dispositive, and subterfuges are not
countenanced.’ ” (Espejo, supra, 13 Cal.App.5th at pp. 342–343.)
• “It bears emphasis that in order to establish that a worker is an independent
contractor under the ABC standard, the hiring entity is required to establish the
existence of each of the three parts of the ABC standard. Furthermore, inasmuch
as a hiring entity’s failure to satisfy any one of the three parts itself establishes
that the worker should be treated as an employee for purposes of the wage order,
a court is free to consider the separate parts of the ABC standard in whatever
order it chooses. Because in many cases it may be easier and clearer for a court
to determine whether or not part B or part C of the ABC standard has been
satisfied than for the court to resolve questions regarding the nature or degree of
a worker’s freedom from the hiring entity’s control for purposes of part A of the
standard, the significant advantages of the ABC standard—in terms of increased
clarity and consistency—will often be best served by first considering one or
both of the latter two parts of the standard in resolving the employee or
independent contractor question.” (Dynamex, supra, 4 Cal.5th at p. 963, italics
added.)
• “An entity that controls the business enterprise may be an employer even if it
did not ‘directly hire, fire or supervise’ the employees. Multiple entities may be
employers where they ‘control different aspects of the employment relationship.’
‘This occurs, for example, when one entity (such as a temporary employment
agency) hires and pays a worker, and another entity supervises the work.’
‘Supervision of the work, in the specific sense of exercising control over how
services are performed, is properly viewed as one of the “working
conditions” . . . .’ ” (Castaneda v. Ensign Group, Inc. (2014) 229 Cal.App.4th
1015, 1019 [177 Cal.Rptr.3d 581].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 29A
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
and Exemptions—In General, ¶ 11:115 et seq. (The Rutter Group)
Wilcox, California Employment Law, Ch. 250, Employment Law: Wage and Hour
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Disputes, § 250.13 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 1, Overview of Wage and Hour
Laws, § 1.04 (Matthew Bender)
2706–2709. Reserved for Future Use
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2710. Solicitation of Employee by Misrepresentation—Essential
Factual Elements (Lab. Code, § 970)
[Name of plaintiff] claims that [name of defendant] made [a] false
representation[s] about work to persuade [him/her/nonbinary pronoun] to
change [his/her/nonbinary pronoun] residence. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] made [a] representation[s] to [name of
plaintiff] about [insert one or more of the following:]
1. [the kind, character, or existence of work;]
1. [the length of time work would last;]
1. [the compensation for work;]
1. [the sanitary or housing conditions relating to work;]
1. [the existence or nonexistence of any pending strike, lockout, or
other labor dispute affecting work;]
2. That [name of defendant]’s representation(s) [was/were] not true;
3. That [name of defendant] knew when the representation[s] [was/
were] made that [it/they] [was/were] not true;
4. That [name of defendant] intended that [name of plaintiff] rely on
the representation[s];
5. That [name of plaintiff] reasonably relied on [name of defendant]’s
representation[s] and changed [his/her/nonbinary pronoun]
residence for the purpose of working for [name of defendant];
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s
representation(s) was a substantial factor in causing
[his/her/nonbinary pronoun] harm.
New September 2003
Directions for Use
If the statutory action under Labor Code section 970 is applicable, do not give the
common-law fraud instruction. For other jury instructions regarding opinions as
statements of fact, misrepresentations to third parties, reliance, and reasonable
reliance, see CACI Nos. 1904 through 1908 in the Fraud or Deceit series.
Sources and Authority
• False Representations in Labor Recruitment. Labor Code section 970.
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• Violation is Misdemeanor. Labor Code section 971.
• Civil Liability for Violation. Labor Code section 972.
• “[S]ection 970, although applied . . . to other employment situations, was
enacted to protect migrant workers from the abuses heaped upon them by
unscrupulous employers and potential employers, especially involving false
promises made to induce them to move in the first instance.” (Tyco Industries,
Inc. v. Superior Court (1985) 164 Cal.App.3d 148, 155 [211 Cal.Rptr. 540],
internal citation and italics omitted.)
• “To establish . . . a claim [for violation of section 970], [plaintiff] had to prove
that defendants made a knowingly false representation regarding the length of
her employment . . . with the intent to persuade her to move there from another
place to take the position.” (Finch v. Brenda Raceway Corp. (1994) 22
Cal.App.4th 547, 553 [27 Cal.Rptr.2d 531].)
• “[Section 970] requires the employee to demonstrate that his or her employer
made ‘knowingly false representations’ concerning the nature, duration or
conditions of employment. . . . [¶] Moreover, under the statute an employee
must establish that the employer induced him or her to relocate or change
residences.” (Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359,
1392 [88 Cal.Rptr.2d 802].)
• “The words ‘to change from one place to another’ import temporary as well as
permanent relocation of residence, as contrasted with a mere change in the site
of employment. The quantitative fact that the change of residence was to be only
for two weeks rather than for a longer period would not appear to affect the
qualitative misrepresentations, nor does it render the statute inapplicable.”
(Collins v. Rocha (1972) 7 Cal.3d 232, 239–240 [102 Cal.Rptr. 1, 497 P.2d
225].)
• “The construction of a statute and whether it is applicable to a factual situation
present solely questions of law. Although the trial court erred in determining that
the Labor Code sections 970 and 972 were not applicable and hence the issue of
double damages was not submitted to the jury, the record reflects that the jury
specifically found that [defendant] made false representations to induce [plaintiff]
to accept the position in California. Given the express findings by the jury, it is
unnecessary to remand this case for a retrial on the limited issue of damages.
. . . We therefore modify the judgment to reflect double damages in accordance
with Labor Code section 972.” (Seubert v. McKesson Corp. (1990) 223
Cal.App.3d 1514, 1522–1523 [273 Cal.Rptr. 296], internal citation omitted,
overruled on other grounds, Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th
384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 499
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-D, Implied
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Covenant of Good Faith and Fair Dealing, ¶¶ 4:351, 5:532, 5:540, 5:892.10,
16:493(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Defamation, ¶¶ 5:532, 5:540 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-K, False
Imprisonment, ¶¶ 5:891–5:8932.10 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-E, Statute of
Limitations, ¶ 16:493 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee
Rights Statutes, § 4.51
4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to
Wrongful Termination, § 63.06[1] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 249.30, 249.80 (Matthew Bender)
California Civil Practice: Employment Litigation § 6:27 (Thomson Reuters)
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2711. Preventing Subsequent Employment by
Misrepresentation—Essential Factual Elements (Lab. Code,
§ 1050)
[Name of plaintiff] claims that [name of defendant] made [a] false
representation[s] to prevent [him/her/nonbinary pronoun] from obtaining
employment. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That after [name of plaintiff]’s employment with [name of
defendant] ended, [name of defendant] made [a] representation(s) to
[name of prospective employer] about [name of plaintiff];
2. That [name of defendant]’s representation[s] [was/were] not true;
3. That [name of defendant] knew the representation[s] [was/were]
not true when [he/she/nonbinary pronoun/it] made [it/them];
4. That [name of defendant] made the representation[s] with the
intent of preventing [name of plaintiff] from obtaining
employment;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
For jury instructions regarding opinions as statements of fact and the definition of
an important fact, see CACI Nos. 1904 and 1905 in the Fraud or Deceit series. For
an instruction on the qualified privilege pursuant to Civil Code section 47(c), see
CACI No. 1723 in the Defamation series.
It is unclear whether elements 3 and 4 are necessary elements to this cause of
action.
Sources and Authority
• Preventing Later Employment by Misrepresentation. Labor Code section 1050.
• Permitting Violation is Misdemeanor. Labor Code section 1052.
• Civil Liability for Violation. Labor Code section 1054.
• Truthful Statement for Termination of Employment. Labor Code section 1053.
• Privileged Publications. Civil Code section 47(c).
• “Section 1054 provides for a damage remedy for the party aggrieved by a
violation of the section 1050 prohibition against an employer blacklisting a
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former employee. It is patent that the aggrieved party must be the blacklisted
employee, not a union, since the latter can neither be fired nor quit.” (Service
Employees Internat. Union, Local 193, AFL-CIO v. Hollywood Park, Inc. (1983)
149 Cal.App.3d 745, 765 [197 Cal.Rptr. 316].)
• “Labor Code section 1050 applies only to misrepresentations made to
prospective employers other than the defendant. [¶] . . . [T]he Legislature
intended that Labor Code section 1050 would apply only to misstatements to
other potential employers, not to misstatements made internally by employees of
the party to be charged.” (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d
278, 288–289 [186 Cal.Rptr. 184].)
• A communication without malice solicited by a prospective employer from a
former employer would be privileged in accordance with Civil Code section
47(c). (See O’Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040, 1047
[238 Cal.Rptr. 715].)
• “We . . . recognize that ‘[t]he primary purpose of punitive damages is to punish
the defendant and make an example of him.’ Since this purpose is the same as
the treble damages authorized by Labor Code section 1054, we do not sanction a
double recovery for the plaintiff. In the new trial on damages, the jury should be
instructed on the subject of punitive damages based on malice or oppression.
Any verdict finding compensatory damages must be trebled by the court.
Plaintiff may then elect to have judgment entered in an amount which reflects
either the statutory trebling, or the compensatory and punitive damages.”
(Marshall v. Brown (1983) 141 Cal.App.3d 408, 419 [190 Cal.Rptr. 392].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 302, 373, 374, 377, 379, 387, 416, 455, 459
Chin et al., California Practice Guide: Employment Litigation, Ch.4-D, Implied
Covenant of Good Faith and Fair Dealing, ¶ 4:351 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Defamation, ¶¶ 5:532, 5:540 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-K, False
Imprisonment, ¶¶ 5:891–5:893 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-E, Statute of
Limitations, ¶ 16:493 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to
Wrongful Termination, § 63.06[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 249.22[3][a], 249.31, 249.81 (Matthew Bender)
California Civil Practice: Employment Litigation § 6:29 (Thomson Reuters)
2712–2719. Reserved for Future Use
52
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2720. Affirmative Defense—Nonpayment of Overtime—Executive
Exemption
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
required to pay [name of plaintiff] for overtime because [name of plaintiff]
is an executive employee. [Name of plaintiff] is exempt from overtime pay
requirements as an executive if [name of defendant] proves all of the
following:
1. [Name of plaintiff]’s duties and responsibilities involve
management of [name of defendant]’s [business/enterprise] or of a
customarily recognized department or subdivision of the
[business/enterprise];
2. [Name of plaintiff] customarily and regularly directs the work of
two or more employees;
3. [Name of plaintiff] has the authority to hire or fire employees, or
[his/her/nonbinary pronoun] suggestions as to hiring or firing and
as to advancement and promotion or other changes in status are
given particular weight;
4. [Name of plaintiff] customarily and regularly exercises discretion
and independent judgment;
5. [Name of plaintiff] performs executive duties more than half of the
time; and
6. [Name of plaintiff]’s monthly salary is at least [insert amount that is
twice the state minimum wage for full time employment].
In determining whether [name of plaintiff] performs executive duties
more than half of the time, the most important consideration is how [he/
she/nonbinary pronoun] actually spends [his/her/nonbinary pronoun] time.
But also consider whether [name of plaintiff]’s practice differs from [name
of defendant]’s realistic expectations of how [name of plaintiff] should
spend [his/her/nonbinary pronoun] time and the realistic requirements of
the job.
[Each of [name of plaintiff]’s activities is either an exempt or a
nonexempt activity depending on the primary purpose for which [he/she/
nonbinary pronoun] undertook it at that time. Time spent on an activity is
either exempt or nonexempt, not both.]
New December 2012; Revised June 2014
Directions for Use
This instruction is an affirmative defense to an employee’s claim for statutory
53
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CACI No. 2720 LABOR CODE ACTIONS
overtime earnings. (See CACI No. 2702, Nonpayment of Overtime
Compensation—Essential Factual Elements.) The employer claims that the employee
is an exempt executive. (See Lab. Code, § 515(a).) The employer must prove all of
the elements. (United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th
1001, 1014 [118 Cal.Rptr.3d 834].) For an instruction for the affirmative defense of
administrative exemption, see CACI No. 2721, Affırmative Defense—Nonpayment of
Overtime—Administrative Exemption.
This instruction is based on Industrial Welfare Commission Wage Order 9, which is
applicable to the transportation industry. (See 8 Cal. Code Regs., § 11090.) Different
wage orders are applicable to different industries. (See Lab. Code, § 515.) The
requirements of the executive exemptions under the various wage orders are
essentially the same. (Cf., e.g., 8 Cal. Code Regs., § 11040, Wage Order 4,
applicable to persons employed in professional, technical, clerical, mechanical, and
similar occupations.).
The exemption requires that the employee be primarily engaged in duties that “meet
the test of the exemption.” (See 8 Cal. Code Regs., § 11090 sec. 1(A)(1)(e), sec.
2(J) (“primarily” means more than one-half the employee’s work time).) This
requirement is expressed in element 5. However, the contours of executive duties
are quite detailed in the wage orders, which incorporate federal regulations under
the Fair Labor Standards Act and also provide some specific examples. (See also
Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 802 [85 Cal.Rptr.2d 844, 978
P.2d 2].) In many cases, it will be advisable to instruct further with details from the
applicable wage order and regulations as to what constitutes “executive duties” in
element 5.
Include the optional last paragraph if a particular work activity arguably involves
more than one purpose and could be characterized as exempt or nonexempt,
depending on its primary purpose.
This instruction may be expanded to provide examples of the specific exempt and
nonexempt activities relevant to the work at issue. (See, e.g., Heyen v. Safeway, Inc.
(2013) 216 Cal.App.4th 795, 808–809 [157 Cal.Rptr.3d 280].)
Sources and Authority
• Exemptions to Overtime Requirements. Labor Code section 515(a).
• “[T]he assertion of an exemption from the overtime laws is considered to be an
affirmative defense, and therefore the employer bears the burden of proving the
employee’s exemption.” (Ramirez, supra, 20 Cal.4th at pp. 794–795.)
• “In order to discharge its burden to show [plaintiff] was exempt as an executive
employee pursuant to Wage Order 9, [defendant] was required to demonstrate the
following: (1) his duties and responsibilities involve management of the
enterprise or a ‘customarily recognized department or subdivision thereof’; (2)
he customarily and regularly directs the work of two or more employees; (3) he
has the authority to hire or terminate employees, or his suggestions as to hiring,
firing, promotion or other changes in status are given ‘particular weight’; (4) he
54
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LABOR CODE ACTIONS CACI No. 2720
customarily and regularly exercises discretion and independent judgment; (5) he
is primarily engaged in duties that meet the test of the exemption; and (6) his
monthly salary is equivalent to no less than two times the state minimum wage
for full-time employment.” (United Parcel Service Wage & Hour Cases, supra,
190 Cal.App.4th at p. 1014 [citing 8 Cal. Code Regs., § 11090, subd. 1(A)(1)].)
• “Determining whether or not all of the elements of the exemption have been
established is a fact-intensive inquiry.” (United Parcel Service Wage & Hour
Cases, supra, 190 Cal.App.4th at p. 1014.)
• “Review of the determination that [plaintiff] was not an exempt employee is a
mixed question of law and fact. Whether an employee satisfies the elements of
the exemption is a question of fact reviewed for substantial evidence. The
appropriate manner of evaluating the employee’s duties is a question of law that
we review independently.” (Heyen, supra, 216 Cal.App.4th at p. 817, internal
citations omitted.)
• “The appropriateness of any employee’s classification as exempt must be based
on a review of the actual job duties performed by that employee. Wage Order 9
expressly provides that ‘[t]he work actually performed by the employee during
the course of the workweek must, first and foremost, be examined and the
amount of time the employee spends on such work, together with the employer’s
realistic expectations and the realistic requirements of the job, shall be
considered . . . .’ No bright-line rule can be established classifying everyone
with a particular job title as per se exempt or nonexempt—the regulations
identify job duties, not job titles. ‘A job title alone is insufficient to establish the
exempt status of an employee. The exempt or nonexempt status of any particular
employee must be determined on the basis of whether the employee’s salary and
duties meet the requirements of the regulations . . . .’ ” (United Parcel Service
Wage & Hour Cases, supra, 190 Cal.App.4th at p. 1014–1015, original italics,
internal citation omitted.)
• “This is not a day-by-day analysis. The issue is whether the employees ‘ “spend
more than 51% of their time on managerial tasks in any given workweek.” ’ ”
(Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, 473, fn. 36 [216 Cal.Rptr.3d
390])
• “Put simply, ‘the regulations do not recognize “hybrid” activities—i.e., activities
that have both “exempt” and “nonexempt” aspects. Rather, the regulations
require that each discrete task be separately classified as either “exempt’ or
“nonexempt.” [Citations.]’ [¶] We did not state, however, that the same task must
always be labeled exempt or nonexempt: ‘[I]dentical tasks may be “exempt” or
‘nonexempt” based on the purpose they serve within the organization or
department.’ ” (Batze, supra, 10 Cal.App.5th at p. 474.)
• “[T]he federal regulations incorporated into Wage Order 7 do not support the
‘multi-tasking’ standard proposed by [defendant]. Instead, they suggest, as the
trial court correctly instructed the jury, that the trier of fact must categorize tasks
as either ‘exempt’ or ‘nonexempt’ based on the purpose for which [plaintiff]
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CACI No. 2720 LABOR CODE ACTIONS
undertook them.” (Heyen, supra, 216 Cal.App.4th at p. 826.)
• “Wage Order 4 refers to compensation in the form of a ‘salary.’ It does not
define the term. The regulation does not use a more generic term, such as
‘compensation’ or ‘pay.’ Either of these terms would encompass hourly wages, a
fixed annual salary, and anything in between. ‘Salary’ is a more specific form of
compensation. A salary is generally understood to be a fixed rate of pay as
distinguished from an hourly wage. Thus, use of the word ‘salary’ implies that
an exempt employee’s pay must be something other than an hourly wage.
California’s Labor Commission noted in an opinion letter dated March 1, 2002,
that the Division of Labor Standards Enforcement (DLSE) construes the IWC
wage orders to incorporate the federal salary-basis test for purposes of
determining whether an employee is exempt or nonexempt.” (Negri v. Koning &
Associates (2013) 216 Cal.App.4th 392, 397–398 [156 Cal.Rptr.3d 697, footnote
omitted.)
• “[T]he costs incurred by an employer to provide an employee with board,
lodging or other facilities may not count towards the minimum salary amount
required for exemption . . . .” (Kao v. Holiday (2017) 12 Cal.App.5th 947, 958
[219 Cal.Rptr.3d 580].)
• “The rule is that state law requirements for exemption from overtime pay must
be at least as protective of the employee as the corresponding federal standards.
Since federal law requires that, in order to meet the salary basis test for
exemption the employee would have to be paid a predetermined amount that is
not subject to reduction based upon the number of hours worked, state law
requirements must be at least as protective.” (Negri, supra, 216 Cal.App.4th at p.
398, internal citation omitted.)
• “Under California law, to determine whether an employee was properly classified
as ‘exempt,’ the trier of fact must look not only to the ‘work actually performed
by the employee during the . . . workweek,’ but also to the ‘employer’s realistic
expectations and the realistic requirements of the job.’ ” (Heyen, supra, 216
Cal.App.4th at p. 828.)
• “Having recognized California’s distinctive quantitative approach to determining
which employees are outside salespersons, we must then address an issue
implicitly raised by the parties that caused some confusion in the trial court and
the Court of Appeal: Is the number of hours worked in sales-related activities to
be determined by the number of hours that the employer, according to its job
description or its estimate, claims the employee should be working in sales, or
should it be determined by the actual average hours the employee spent on sales
activity? The logic inherent in the IWC’s quantitative definition of outside
salesperson dictates that neither alternative would be wholly satisfactory. On the
one hand, if hours worked on sales were determined through an employer’s job
description, then the employer could make an employee exempt from overtime
laws solely by fashioning an idealized job description that had little basis in
reality. On the other hand, an employee who is supposed to be engaged in sales
activities during most of his working hours and falls below the 50 percent mark
56
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LABOR CODE ACTIONS CACI No. 2720
due to his own substandard performance should not thereby be able to evade a
valid exemption. A trial court, in determining whether the employee is an outside
salesperson, must steer clear of these two pitfalls by inquiring into the realistic
requirements of the job. In so doing, the court should consider, first and
foremost, how the employee actually spends his or her time. But the trial court
should also consider whether the employee’s practice diverges from the
employer’s realistic expectations, whether there was any concrete expression of
employer displeasure over an employee’s substandard performance, and whether
these expressions were themselves realistic given the actual overall requirements
of the job.” (Ramirez, supra, 20 Cal.4th at pp. 801–802, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 392 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:345 et seq. (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, §§ 2.04, 2.06
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.71 (Matthew Bender)
Simmons, Wage and Hour Manual for California Employers, Ch. 2, Coverage of
Wage and Hour Laws (Castle Publications Limited)
Simmons, Wage and Hour Manual for California Employers, Ch. 10, Exemptions
(Castle Publications Limited)
57
Copyright Judicial Council of California
2721. Affirmative Defense—Nonpayment of
Overtime—Administrative Exemption
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
required to pay [name of plaintiff] for overtime because [name of plaintiff]
is an administrative employee. [Name of plaintiff] is exempt from
overtime pay requirements as an administrator if [name of defendant]
proves all of the following:
1. [Name of plaintiff]’s duties and responsibilities involve the
performance of office or nonmanual work directly related to
management policies or general business operations of [name of
defendant] or [name of defendant]’s customers;
2. [Name of plaintiff] customarily and regularly exercises discretion
and independent judgment;
3. [[Name of plaintiff] performs, under general supervision only,
specialized or technical work that requires special training,
experience, or knowledge;]
3. [or]
3. [[Name of plaintiff] regularly and directly assists a proprietor or
bona fide executive or administrator;]
3. [or]
3. [[Name of plaintiff] performs special assignments and tasks under
general supervision only;]
4. [Name of plaintiff] performs administrative duties more than half
of the time; and
5. [Name of plaintiff]’s monthly salary is at least [insert amount that is
twice the state minimum wage for full time employment].
In determining whether [name of plaintiff] performs administrative duties
more than half of the time, the most important consideration is how [he/
she/nonbinary pronoun] actually spends [his/her/nonbinary pronoun] time.
But also consider whether [name of plaintiff]’s practice differs from [name
of defendant]’s realistic expectations of how [name of plaintiff] should
spend [his/her/nonbinary pronoun] time and the realistic requirements of
the job.
[Each of [name of plaintiff]’s activities is either an exempt or a
nonexempt activity depending on the primary purpose for which [he/she/
nonbinary pronoun] undertook it at that time. Time spent on an activity is
58
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LABOR CODE ACTIONS CACI No. 2721
either exempt or nonexempt, not both.]
New December 2012; Revised June 2014
Directions for Use
This instruction is an affirmative defense to an employee’s claim for statutory
overtime earnings. (See CACI No. 2702, Nonpayment of Overtime
Compensation—Essential Factual Elements.) The employer claims that the employee
is an exempt administrator. (See Lab. Code, § 515(a).) The employer must prove all
of the elements. (Eicher v. Advanced Business Integrators, Inc. (2007) 151
Cal.App.4th 1363 1372 [61 Cal.Rptr.3d 114].) For an instruction for the affirmative
defense of executive exemption, see CACI No. 2720, Affırmative
Defense—Nonpayment of Overtime—Executive Exemption.
This instruction is based on Industrial Welfare Commission Wage Order 9, which is
applicable to the transportation industry. (See 8 Cal. Code Regs., § 11090.) Different
wage orders are applicable to different industries. (See Lab. Code, § 515.) The
requirements of the administrative exemptions under the various wage orders are
essentially the same. (Cf., e.g., 8 Cal. Code Regs., § 11040, Wage Order 4,
applicable to persons employed in professional, technical, clerical, mechanical, and
similar occupations.).
The exemption requires that the employee be “primarily engaged in duties that meet
the test of the exemption.” (See 8 Cal. Code Regs., § 11090 sec. 1(A)(2)(f), sec. 2(J)
(“primarily” means more than one-half the employee’s work time).) This
requirement is expressed in element 4. However, the contours of administrative
duties are quite detailed in the wage orders, which incorporate federal regulations
under the Fair Labor Standards Act and also provide some specific examples. (See
also Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 802 [85 Cal.Rptr.2d 844,
978 P.2d 2].) In many cases, it will be advisable to instruct further with details from
the applicable wage order and regulations as to what constitutes “administrative
duties” (element 4) and the meaning of “directly related” (element 1).
Include the optional last paragraph if a particular work activity arguably involves
more than one purpose and could be characterized as exempt or nonexempt,
depending on its primary purpose.
This instruction may be expanded to provide examples of the specific exempt and
nonexempt activities relevant to the work at issue. (See, e.g., Heyen v. Safeway, Inc.
(2013) 216 Cal.App.4th 795, 808–809 [157 Cal.Rptr.3d 280].)
Sources and Authority
• Exemptions to Overtime Requirements. Labor Code section 515(a).
• “[T]he assertion of an exemption from the overtime laws is considered to be an
affirmative defense, and therefore the employer bears the burden of proving the
employee’s exemption.” (Ramirez, supra, 20 Cal.4th at pp. 794–795.)
• “In order to establish that [plaintiff] was exempt as an administrative employee,
59
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CACI No. 2721 LABOR CODE ACTIONS
[defendant] was required to show all of the following: (1) his duties and
responsibilities involve the performance of office or nonmanual work directly
related to management policies or general business operations of [defendant]; (2)
he customarily and regularly exercises discretion and independent judgment; (3)
he performs work requiring special training, experience, or knowledge under
general supervision only (the two alternative prongs of the general supervision
element are not pertinent to our discussion); (4) he is primarily engaged in duties
that meet the test of exemption; and (5) his monthly salary is equivalent to no
less than two times the state minimum wage for full-time employment.” (United
Parcel Service Wage & Hour Cases, supra, 190 Cal.App.4th at p. 1028 [relying
on 8 Cal. Code Regs., § 11090, subd. 1(A)(2)].)
• “Read together, the applicable Labor Code statutes, wage orders, and
incorporated federal regulations now provide an explicit and extensive
framework for analyzing the administrative exemption.” (Harris v. Superior
Court (2011) 53 Cal.4th 170, 182 [135 Cal.Rptr.3d 247, 266 P.3d 953].)
• “Determining whether or not all of the elements of the exemption have been
established is a fact-intensive inquiry.” (United Parcel Service Wage & Hour
Cases (2010) 190 Cal.App.4th 1001, 1014 [118 Cal.Rptr.3d 834].)
• “Review of the determination that [plaintiff] was not an exempt employee is a
mixed question of law and fact. Whether an employee satisfies the elements of
the exemption is a question of fact reviewed for substantial evidence. The
appropriate manner of evaluating the employee’s duties is a question of law that
we review independently.” (Heyen, supra, 216 Cal.App.4th at p. 817, internal
citations omitted.)
• “The appropriateness of any employee’s classification as exempt must be based
on a review of the actual job duties performed by that employee. Wage Order 9
expressly provides that ‘[t]he work actually performed by the employee during
the course of the workweek must, first and foremost, be examined and the
amount of time the employee spends on such work, together with the employer’s
realistic expectations and the realistic requirements of the job, shall be
considered . . . .’ No bright-line rule can be established classifying everyone
with a particular job title as per se exempt or nonexempt—the regulations
identify job duties, not job titles. ‘A job title alone is insufficient to establish the
exempt status of an employee. The exempt or nonexempt status of any particular
employee must be determined on the basis of whether the employee’s salary and
duties meet the requirements of the regulations . . . .’ ” (United Parcel Service
Wage & Hour Cases, supra, 190 Cal.App.4th at p. 1014–1015, original italics,
internal citation omitted.)
• “This is not a day-by-day analysis. The issue is whether the employees ‘ “spend
more than 51% of their time on managerial tasks in any given workweek.” ’ ”
(Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, 473, fn. 36 [216 Cal.Rptr.3d
390].)
• “Put simply, ‘the regulations do not recognize “hybrid” activities—i.e., activities
60
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LABOR CODE ACTIONS CACI No. 2721
that have both “exempt” and “nonexempt” aspects. Rather, the regulations
require that each discrete task be separately classified as either “exempt’ or
“nonexempt.” [Citations.]’ [¶] We did not state, however, that the same task must
always be labeled exempt or nonexempt: ‘ [I]dentical tasks may be “exempt” or
‘nonexempt” based on the purpose they serve within the organization or
department.’ ” (Batze, supra, 10 Cal.App.5th at p. 474.)
• “In basic terms, the administrative/production worker dichotomy distinguishes
between administrative employees who are primarily engaged in ‘ “administering
the business affairs of the enterprise” ’ and production-level employees whose
‘ “primary duty is producing the commodity or commodities, whether goods or
services, that the enterprise exists to produce and market.” [Citation.]’ ¶¶ [T]he
dichotomy is a judicially created creature of the common law, which has been
effectively superseded in this context by the more specific and detailed statutory
and regulatory enactments.” (Harris, supra, 53 Cal.4th at pp. 183, 188.)
• “We do not hold that the administrative/production worker dichotomy . . . can
never be used as an analytical tool. We merely hold that the Court of Appeal
improperly applied the administrative/production worker dichotomy as a
dispositive test. [¶] . . . [I]n resolving whether work qualifies as administrative,
courts must consider the particular facts before them and apply the language of
the statutes and wage orders at issue. Only if those sources fail to provide
adequate guidance . . . is it appropriate to reach out to other sources.” (Harris,
supra, 53 Cal.4th at p. 190.)
• “[T]he federal regulations incorporated into Wage Order 7 do not support the
‘multi-tasking’ standard proposed by [defendant]. Instead, they suggest, as the
trial court correctly instructed the jury, that the trier of fact must categorize tasks
as either ‘exempt’ or ‘nonexempt’ based on the purpose for which [plaintiff]
undertook them.” (Heyen, supra, 216 Cal.App.4th at p. 826.)
• “Wage Order 4 refers to compensation in the form of a ‘salary.’ It does not
define the term. The regulation does not use a more generic term, such as
‘compensation’ or ‘pay.’ Either of these terms would encompass hourly wages, a
fixed annual salary, and anything in between. ‘Salary’ is a more specific form of
compensation. A salary is generally understood to be a fixed rate of pay as
distinguished from an hourly wage. Thus, use of the word ‘salary’ implies that
an exempt employee’s pay must be something other than an hourly wage.
California’s Labor Commission noted in an opinion letter dated March 1, 2002,
that the Division of Labor Standards Enforcement (DLSE) construes the IWC
wage orders to incorporate the federal salary-basis test for purposes of
determining whether an employee is exempt or nonexempt.” (Negri v. Koning &
Associates (2013) 216 Cal.App.4th 392, 397–398 [156 Cal.Rptr.3d 697, footnote
omitted.)
• “[T]he costs incurred by an employer to provide an employee with board,
lodging or other facilities may not count towards the minimum salary amount
required for exemption . . . .” (Kao v. Holiday (2017) 12 Cal.App.5th 947, 958
[219 Cal.Rptr.3d 580].)
61
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CACI No. 2721 LABOR CODE ACTIONS
• “The rule is that state law requirements for exemption from overtime pay must
be at least as protective of the employee as the corresponding federal standards.
Since federal law requires that, in order to meet the salary basis test for
exemption the employee would have to be paid a predetermined amount that is
not subject to reduction based upon the number of hours worked, state law
requirements must be at least as protective.” (Negri, supra, 216 Cal.App.4th at p.
398.)
• “Under California law, to determine whether an employee was properly classified
as ‘exempt,’ the trier of fact must look not only to the ‘work actually performed
by the employee during the . . . workweek,’ but also to the ‘employer’s realistic
expectations and the realistic requirements of the job.’ ” (Heyen, supra, 216
Cal.App.4th at p. 828.)
• “Having recognized California’s distinctive quantitative approach to determining
which employees are outside salespersons, we must then address an issue
implicitly raised by the parties that caused some confusion in the trial court and
the Court of Appeal: Is the number of hours worked in sales-related activities to
be determined by the number of hours that the employer, according to its job
description or its estimate, claims the employee should be working in sales, or
should it be determined by the actual average hours the employee spent on sales
activity? The logic inherent in the IWC’s quantitative definition of outside
salesperson dictates that neither alternative would be wholly satisfactory. On the
one hand, if hours worked on sales were determined through an employer’s job
description, then the employer could make an employee exempt from overtime
laws solely by fashioning an idealized job description that had little basis in
reality. On the other hand, an employee who is supposed to be engaged in sales
activities during most of his working hours and falls below the 50 percent mark
due to his own substandard performance should not thereby be able to evade a
valid exemption. A trial court, in determining whether the employee is an outside
salesperson, must steer clear of these two pitfalls by inquiring into the realistic
requirements of the job. In so doing, the court should consider, first and
foremost, how the employee actually spends his or her time. But the trial court
should also consider whether the employee’s practice diverges from the
employer’s realistic expectations, whether there was any concrete expression of
employer displeasure over an employee’s substandard performance, and whether
these expressions were themselves realistic given the actual overall requirements
of the job.” (Ramirez, supra, 20 Cal.4th at pp. 801–802, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 392 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:345 et seq. (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, § 2.04 (Matthew
Bender)
62
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LABOR CODE ACTIONS CACI No. 2721
11 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.71 (Matthew Bender)
Simmons, Wage and Hour Manual for California Employers, Ch. 2, Coverage of
Wage and Hour Laws (Castle Publications Limited)
Simmons, Wage and Hour Manual for California Employers, Ch. 10, Exemptions
(Castle Publications Limited)
2722–2731. Reserved for Future Use
63
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2732. Retaliatory Unfair Immigration-Related Practice—Essential
Factual Elements (Lab. Code, § 1019)
[Name of plaintiff] claims that [name of defendant] [specify unfair
immigration-related practice, e.g., threatened to report [him/her/nonbinary
pronoun] to immigration authorities] in retaliation for [his/her/nonbinary
pronoun] [specify right, e.g., making a claim for minimum wage]. In order
to establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff]
1. [in good faith filed a complaint or informed someone about [name
of defendant]’s alleged [specify violation of Labor Code or local
ordinance, e.g., failure to pay the minimum wage to its employees];]
1. [or]
1. [sought information regarding whether or not [name of defendant]
was in compliance with [specify requirement under Labor Code or
local ordinance, e.g., minimum wage requirements];]
1. [or]
1. [informed someone of that person’s potential rights and remedies
for [name of defendant]’s alleged [specify violation of Labor Code or
local ordinance, e.g., failure to pay the minimum wage to its
employees] and assisted [him/her/nonbinary pronoun] in asserting
those rights;]
2. That [name of defendant]
2. [requested more or different documents than those that are
required by federal immigration law, or refused to honor
documents that on their face reasonably appeared to be genuine;]
2. [or]
2. [used the federal E-Verify system to check the employment
authorization status of [name of plaintiff] at a time or in a manner
not required or authorized by federal immigration law;]
2. [or]
2. [filed or threatened to file a false [police report/report or
complaint with a state or local agency];]
2. [or]
2. [contacted or threatened to contact immigration authorities;]
3. That [name of defendant]’s conduct was for the purpose of, or
with the intent of, retaliating against [name of plaintiff] for
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exercising [his/her/nonbinary pronoun] legally protected rights;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[If you find that [name of defendant] acted as described in element 2
fewer than 90 days after [name of plaintiff] acted as described in element
1, you may but are not required to conclude, without further evidence,
that [name of defendant] acted with a retaliatory purpose and intent.]
New December 2014; Revised May 2020
Directions for Use
One who is the victim of an “unfair immigration-related practice” as defined, or that
person’s representative, may bring a civil action for equitable relief and any
damages or penalties. (Lab. Code, § 1019(a).) While most commonly this claim
would be brought by an employee against an employer, the statute prohibits unfair
immigration-related practices by “an employer or any other person” against “an
employee or other person.” (Lab. Code, § 1019(d)(1).) Therefore, the statute does
not require an employment relationship between the parties.
Engaging in an unfair immigration-related practice against a person within 90 days
of the person’s exercise of protected rights raises a rebuttable presumption that the
defendant did so in retaliation for the plaintiff’s exercise of those rights. (Lab. Code,
§ 1019(c).) The statute does not specify whether the presumption is one affecting
only the burden of producing evidence (see Evid. Code, §§ 603, 604) or one
affecting the burden of proof. (See Evid. Code, § 605.) If the statute implements a
public policy against the use of immigration-related coercion to deter workers from
exercising their rights under the Labor Code, its presumption would affect the
burden of proof. (See Evid. Code, § 605.) The last optional paragraph of the
instruction may then be given if applicable on its facts. If, however, the presumption
affects only the burden of producing evidence, it ceases to exist when the defendant
produces evidence rebutting the presumption, such as a reason for the action other
than retaliation. (Evid. Code, § 604.) In that case, the last paragraph would not be
given.
Sources and Authority
• Retaliatory Use of Immigration-Related Practices. Labor Code section 1019.
• Unlawful Employment of Aliens. 8 United States Code section 1324a.
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 359
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-E, California
Labor Code, ¶ 7:1510 et seq. (The Rutter Group)
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4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
11 California Forms or Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][b] (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)
2733–2739. Reserved for Future Use
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2740. Violation of Equal Pay Act—Essential Factual Elements
(Lab. Code, § 1197.5)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was paid at a
wage rate that is less than the rate paid to employees of [the opposite
sex/another race/another ethnicity]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] was paid less than the rate paid to [a]
person[s] of [the opposite sex/another race/another ethnicity]
working for [name of defendant];
2. That [name of plaintiff] was performing substantially similar work
as the other person[s], considering the overall combination of
skill, effort, and responsibility required; and
3. That [name of plaintiff] was working under similar working
conditions as the other person[s].
New May 2018; Revised January 2019, November 2019, May 2020
Directions for Use
The California Equal Pay Act prohibits paying employees at lower wage rates than
rates paid to employees of the opposite sex or a different race or ethnicity for
substantially similar work. (Lab. Code, § 1197.5(a), (b).) An employee receiving less
than the wage to which the employee is entitled may bring a civil action to recover
the balance of the wages, including interest, and an equal amount as liquidated
damages. Costs and attorney fees may also be awarded. (Lab. Code, § 1197.5(h).)
There is no requirement that an employee show discriminatory intent as an element
of the claim. (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622–625, 629
[3 Cal.Rptr.3d 844].)
This instruction presents singular and plural options for the comparator, the
employee or employees whose pay and work are being compared to the plaintiff’s to
establish a violation of the Equal Pay Act. The statute refers to employees of the
opposite sex or different race or ethnicity. There is language in cases, however, that
suggests that a single comparator (e.g., one woman to one man) is sufficient. (See
Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324 [55 Cal.Rptr.3d
732] [plaintiff had to show that she is paid lower wages than a male comparator,
italics added]; Green, supra, 111 Cal.App.4th at p. 628 [plaintiff in a section 1197.5
action must first show that the employer paid a male employee more than a female
employee for equal work, italics added].) No California case has expressly so held,
however.
There are a number of defenses that the employer may assert to defend what
appears to be an improper pay differential. (Lab. Code, § 1197.5(a), (b).) See CACI
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No. 2741, Affırmative Defense—Different Pay Justified, and CACI No. 2742, Bona
Fide Factor Other Than Sex, Race, or Ethnicity, for instructions on the employer’s
affirmative defenses. (See Lab. Code, § 1197.5(a)(1), (b)(1).)
Sources and Authority
• Right to Equal Pay Based on Gender, Race, or Ethnicity. Labor Code section
1197.5(a), (b).
• Private Right of Action to Enforce Equal Pay Claim. Labor Code section
1197.5(h).
• “This section was intended to codify the principle that an employee is entitled to
equal pay for equal work without regard to gender.” (Jones v. Tracy School Dist.
(1980) 27 Cal.3d 99, 104 [165 Cal.Rptr. 100, 611 P.2d 441].)
• “To establish her prima facie case, [plaintiff] had to show not only that she is
paid lower wages than a male comparator for equal work, but that she has
selected the proper comparator. ‘The EPA does not require perfect diversity
between the comparison classes, but at a certain point, when the challenged
policy effects [sic] both male and female employees equally, there can be no
EPA violation. [Citation.] [A plaintiff] cannot make a comparison of one
classification composed of males and females with another classification of
employees also composed of males and females.’ ” (Hall, supra, 148
Cal.App.4th at pp. 324–325.)
• “[T]he plaintiff in a section 1197.5 action must first show that the employer paid
a male employee more than a female employee ‘ “for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions.” ’ ” (Green, supra, 111
Cal.App.4th at p. 628.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1075 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.14 (Matthew Bender)
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2741. Affirmative Defense—Different Pay Justified
[Name of defendant] claims that [he/she/nonbinary pronoun/it] was justified
in paying [name of plaintiff] a wage rate that was less than the rate paid
to employees of [the opposite sex/another race/another ethnicity]. To
establish this defense, [name of defendant] must prove all of the following:
1. That the wage differential was based on one or more of the
following factors:
[a. A seniority system;]
[b. A merit system;]
[c. A system that measures earnings by quantity or quality of
production;]
[d. (Specify alleged bona fide factor(s) other than sex, race, or
ethnicity, such as education, training, or experience.).]
2. That each factor was applied reasonably; and
3. That the factor[s] that [name of defendant] relied on account[s] for
the entire wage differential.
Prior salary does not justify any disparity in current compensation.
New May 2018; Revised January 2019
Directions for Use
The California Equal Pay Act presents four factors that an employer may offer to
justify a pay differential that results in an apparent pay disparity based on gender,
race, or ethnicity. Factors a, b, and c in element 1 are specific.
If factor d is selected, the jury must also be instructed with CACI No. 2742, Bona
Fide Factor Other Than Sex, Race, or Ethnicity, which establishes what bona fide
factors other than sex, race, or ethnicity may justify a pay differential. (See Lab.
Code, § 1197.5(a)(1), (b)(1).) Choose the factor or factors that the employer asserts
as justification.
Sources and Authority
• Factors Justifying Pay Differential. Labor Code section 1197.5(a)(1), (b)(1).
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1075 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
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Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
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2742. Bona Fide Factor Other Than Sex, Race, or Ethnicity
[Name of defendant] claims that [specify bona fide factor other than sex,
race, or ethnicity] is a legitimate factor other than [sex/race/ethnicity] that
justifies paying [name of plaintiff] at a wage rate that is less than the rate
paid to employees of [the opposite sex/another race/another ethnicity].
[Specify factor] is a factor that justifies the pay differential only if [name
of defendant] proves all of the following:
1. That the factor is not based on or derived from a [sex/race/
ethnicity]-based differential in compensation;
2. That the factor is job related with respect to [name of plaintiff]’s
position; and
3. That the factor is consistent with a business necessity.
A “business necessity” means an overriding legitimate business purpose
such that the factor effectively fulfills the business purpose it is supposed
to serve.
This defense does not apply, however, if [name of plaintiff] proves that an
alternative business practice exists that would serve the same business
purpose without producing the pay differential.
New May 2018
Directions for Use
This instruction must be given along with CACI No. 2741, Affırmative
Defense—Different Pay Justified, if factor d of element 1 of CACI No. 2741 is
chosen: a bona fide factor other than sex, race, or ethnicity, such as education,
training, or experience. This factor applies only if the employer demonstrates that
the factor is not based on or derived from a sex, race, or ethnicity-based differential
in compensation, is job-related with respect to the position in question, and is
consistent with a business necessity. “Business necessity” means an overriding
legitimate business purpose such that the factor effectively fulfills the business
purpose it is supposed to serve. This defense does not apply if the employee
demonstrates that an alternative business practice exists that would serve the same
business purpose without producing the wage differential. (See Lab. Code,
§ 1197.5(a)(1)(D), (b)(1)(D).)
Sources and Authority
• Bona Fide Factor Other Than Sex, Race, or Ethnicity. Labor Code section
1197.5(a)(1)(D), (b)(1)(D).
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Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1077.10 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
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2743. Equal Pay Act—Retaliation—Essential Factual Elements
(Lab. Code, § 1197.5(k))
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] for [pursuing/assisting another in the enforcement
of] [his/her/nonbinary pronoun] right to equal pay regardless of [sex/race/
ethnicity]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] [specify acts taken by plaintiff to enforce or
assist in the enforcement of the right to equal pay];
2. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
3. That [name of plaintiff]’s [pursuit of/assisting in the enforcement
of another’s right to] equal pay was a substantial motivating
reason for [name of defendant]’s [discharging/[other adverse
employment action]] [name of plaintiff];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s retaliatory conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New May 2018; Revised May 2020
Directions for Use
Use this instruction in cases of alleged retaliation against an employee under the
Equal Pay Act. The act prohibits adverse employment actions against an employee
who has taken steps to enforce the equal pay requirements of the act. Also, the
employer cannot prohibit an employee from disclosing that employee’s own wages,
discussing the wages of others, inquiring about another employee’s wages, or aiding
or encouraging any other employee to exercise that employee’s rights. (Lab. Code,
§ 1197.5(k)(1).) An employee who has been retaliated against may bring a civil
action for reinstatement, reimbursement for lost wages and work benefits, interest,
and equitable relief. (Lab. Code, § 1197.5(k)(2).)
Note that there are two causation elements. First, there must be a causal connection
between the employee’s pursuit of equal pay and the adverse employment action
(element 3). Second, the employee must have suffered harm because of the
employer’s retaliatory acts (element 5).
Element 3 uses the term “substantial motivating reason” to express both intent and
causation between the employee’s pursuit of equal pay and the adverse employment
action. “Substantial motivating reason” has been held to be the appropriate standard
under the discrimination prohibitions of the Fair Employment and Housing Act to
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address the possibility of both discriminatory and nondiscriminatory motives. (See
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392,
294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.)
Whether this standard applies to the Equal Pay Act retaliation cases has not been
addressed by the courts.
Sources and Authority
• Retaliation Prohibited Under Equal Pay Act. Labor Code section 1197.5(k).
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1077.20 (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.14 (Matthew Bender)
2744–2749. Reserved for Future Use
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2750. Failure to Reimburse Employee for Necessary Expenditures
or Losses—Essential Factual Elements (Lab. Code, § 2802(a))
[Name of plaintiff] claims that [name of defendant] failed to reimburse
[him/her/nonbinary pronoun] for necessary [expenditures/ [and] losses]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] incurred [expenditures/ [and] losses] as a
direct consequence of [discharging [his/her/nonbinary pronoun] job
duties/obeying the directions of [name of defendant]];
2. That the [expenditures/ [and] losses] were necessary and
reasonable;
3. That [name of defendant] failed to reimburse [name of plaintiff] for
the full amount of the [expenditures/ [and] losses]; and
4. The amount of the [expenditures/ [and] losses] that [name of
defendant] failed to compensate.
[“Necessary [expenditures/ [and] losses]” may include [expenditures/
[and] losses] [name of plaintiff] would have incurred even if
[he/she/nonbinary pronoun] did not also incur them as a direct
consequence of discharging [his/her/nonbinary pronoun] job duties or
obeying the directions of [name of defendant].]
New November 2021
Directions for Use
This instruction assumes the plaintiff is an employee and the defendant is the
employer. The instruction will need to be modified if there is a dispute about the
defendant’s status as an employer or the plaintiff’s status as an employee of the
defendant. Labor Code section 2802 covers necessary expenditures and losses. If
only one of those is at issue, select the appropriate option.
If there is an argument that the directions of the employer were unlawful, modify
the instruction as necessary. (See Lab. Code, § 2802(a).)
Necessary expenditures and losses may include some personal expenses, for
example, the cost of a personal cellphone that is used to make work-related calls.
(See Cochran v. Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1144
[176 Cal.Rptr.3d 407].) Omit the final paragraph if personal expenses are not at
issue.
Sources and Authority
• Obligations of Employer to Indemnify. Labor Code section 2802(a).
• “We conclude that an employer may satisfy its statutory reimbursement
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obligation by paying employees enhanced compensation in the form of increases
in base salary or increases in commission rates, or both, provided there is a
means or method to apportion the enhanced compensation to determine what
amount is being paid for labor performed and what amount is reimbursement for
business expenses.” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th
554, 559 [67 Cal.Rptr.3d 468, 169 P.3d 889].)
• “Does an employer always have to reimburse an employee for the reasonable
expense of the mandatory use of a personal cell phone, or is the reimbursement
obligation limited to the situation in which the employee incurred an extra
expense that he or she would not have otherwise incurred absent the job? The
answer is that reimbursement is always required. Otherwise, the employer would
receive a windfall because it would be passing its operating expenses on to the
employee. Thus, to be in compliance with section 2802, the employer must pay
some reasonable percentage of the employee’s cell phone bill.” (Cochran, supra,
228 Cal.App.4th at p. 1144.)
• “In calculating the reimbursement amount due under section 2802, the employer
may consider not only the actual expenses that the employee incurred, but also
whether each of those expenses was ‘necessary,’ which in turn depends on the
reasonableness of the employee’s choices. For example, an employee’s choice of
automobile will significantly affect the costs incurred. An employee who chooses
an expensive model and replaces it frequently will incur substantially greater
depreciation costs than an employee who chooses a lower priced model and
replaces it less frequently. Similarly, some vehicles use substantially more fuel or
require more frequent or more costly maintenance and repairs than others. The
choice of vehicle will also affect insurance costs. Other employee choices, such
as the brand and grade of gasoline or tires and the shop performing maintenance
and repairs, will also affect the actual costs. Thus, calculation of automobile
expense reimbursement using the actual expenses method requires not only
detailed recordkeeping by the employee and complex allocation calculations, but
also the exercise of judgment (by the employer, the employee, and officials
charged with enforcement of § 2802) to determine whether the expenses incurred
were reasonable and therefore necessary.” (Gattuso, supra, 42 Cal.4th at p. 568.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 440, 442
2 Wilcox, California Employment Law, Ch. 30, Employer’s Tort Liability to Third
Parties for Conduct of Employees, § 30.09 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.21 (Matthew Bender)
2751. Reserved for Future Use
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2752. Tip Pool Conversion—Essential Factual Elements (Lab.
Code, § 351)
[Name of plaintiff] claims that [name of defendant] [took money/allowed
[specify ineligible individual(s) or class(es) of individuals] to take money]
from a tip pool that [name of plaintiff] was entitled to receive. [The court
has determined that [specify ineligible individual(s) or class(es) of
individuals] [was/were] not eligible to receive money from a tip pool.]
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [a/an] [employer/[other covered
entity]];
2. That [name of plaintiff] was an employee of [name of defendant];
3. That [name of defendant] maintained a tip pool in which money
left by patrons in an amount over and above the actual amount
due for [specify services rendered or goods, food, drink, or articles
sold] was pooled to be distributed among employees including
[name of plaintiff]; and
4. [That [name of defendant] took money from the tip pool that
[name of plaintiff] was entitled to receive.]
4. [or]
4. [That [name of defendant] allowed [specify ineligible individual(s) or
class(es) of individuals] to take money from the tip pool that [name
of plaintiff] was entitled to receive.]
[Name of plaintiff] does not have to prove the exact amount of money
that was taken.
[Name of defendant] is required to keep accurate records of all tips or
gratuities received by [him/her/nonbinary pronoun/it] for
[his/her/nonbinary pronoun/its] employees.
New November 2021
Directions for Use
This instruction sets forth the elements required for an employee to establish
wrongful conversion of tip pool money.
Element 1 may be omitted if there is no dispute regarding the defendant’s status as
an employer.
Element 4 presents alternative factual scenarios: the defendant’s direct conversion of
tip pool money and the defendant’s misallocation of tip pool money to any
individual who should not be included in the tip pool, for example, the employer,
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the owner, managers, and supervisors. For the second option, the court must
determine as a matter of law whether an individual was properly included in the tip
pool. (See Lab. Code, § 350(a), (d) [defining employer and agent to include “every
person other than the employer having the authority to hire or discharge any
employee or supervise, direct, or control the acts of employees”], § 351 [prohibiting
employers and agents from receiving any gratuity paid to an employee by a patron].
Include the optional sentence in the introductory paragraph if the court has
determined that the defendant allowed ineligible individuals to partake in the tip
pool.
Sources and Authority
• “Employer” Defined. Labor Code section 350(a).
• “Employee” Defined. Labor Code section 350(b).
• “Gratuity” Defined. Labor Code section 350(e).
• Employee Gratuities. Labor Code section 351.
• Employer’s Duty to Keep Records. Labor Code section 353.
• “The purpose of section 351, as spelled out in the language of the statute, is to
prevent an employer from collecting, taking or receiving gratuity income or any
part thereof, as his own as part of his daily gross receipts, from deducting from
an employee’s wages any amount on account of such gratuity, and from
requiring an employee to credit the amount of the gratuity or any part thereof
against or as a part of his wages. And the legislative intent reflected in the
history of the statute, was to ensure that employees, not employers, receive the
full benefit of gratuities that patrons intend for the sole benefit of those
employees who serve them.” (Leighton v. Old Heidelberg, Ltd. (1990) 219
Cal.App.3d 1062, 1068 [268 Cal.Rptr. 647].)
• “[W]hen a customer leaves a tip in a collective tip box, the customer necessarily
understands the tip is not intended for a particular person and the tip will be
divided among the behind-the-counter service employees. It is undisputed that
these employees consist of baristas and shift supervisors. It would be
inconsistent with the purpose of the statute to require an employer to disregard
the customer’s intent and to instead compel the employer to redirect the tips to
only some of the service personnel.” (Chau v. Starbucks Corp. (2009) 174
Cal.App.4th 688, 699 [94 Cal.Rptr.3d 593], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 456
1 Wilcox, California Employment Law, Ch. 4, Payment of Wages, § 4.10 (Matthew
Bender)
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2753. Failure to Pay All Vested Vacation Time—Essential Factual
Elements (Lab. Code, § 227.3)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] compensation for unpaid vacation time that
[name of plaintiff] earned but did not use before being terminated.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [a/an] [employer/[specify other
covered entity]];
2. That [name of plaintiff] was an employee of [name of defendant];
3. That [name of defendant] did not pay [him/her/nonbinary pronoun]
for all earned and unused vacation time at [his/her/nonbinary
pronoun] final rate of pay in accordance with the [contract of
employment/employer policy]; and
4. The amount owed to [name of plaintiff] for earned and unused
vacation time.
New November 2021
Directions for Use
Element 1 may be omitted if there is no dispute regarding the defendant’s status as
an employer.
An employee’s proportionate right to a paid vacation vests as the labor is rendered.
(Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784 [183 Cal.Rptr. 846, 647
P.2d 122].) If there is a dispute as to the amount of vested vacation time, the jury
should be instructed to determine a pro rata share of vested vacation time. “[A]n
employment contract or employer policy shall not provide for forfeiture of vested
vacation upon termination.” (Lab. Code, § 227.3.)
Sources and Authority
• Payment of Vested Vacation Wages Upon Termination. Labor Code section
227.3.
• “Employer” Defined. Labor Code section 350(a).
• “Employee” Defined. Labor Code section 350(b).
• “The right to a paid vacation, when offered in an employer’s policy or contract
of employment, constitutes deferred wages for services rendered. Case law from
this state and others, as well as principles of equity and justice, compel the
conclusion that a proportionate right to a paid vacation ‘vests’ as the labor is
rendered. Once vested, the right is protected from forfeiture by section 227.3. On
termination of employment, therefore, the statute requires that an employee be
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paid in wages for a pro rata share of his vacation pay.” (Suastez, supra, 31
Cal.3d at p. 784.)
• “Under Labor Code section 227.3, an employee has the right to be paid for
unused vacation only after the ‘employee is terminated without having taken off
his vested vacation time.’ Thus, termination of employment is the event that
converts the employer’s obligation to allow an employee to take vacation from
work into the monetary obligation to pay that employee for unused vested
vacation time. Consequently, [the plaintiff’s] cause of action to enforce his
statutory right to be paid for vested vacation did not accrue until the date his
employment was terminated.” (Church v. Jamison (2006) 143 Cal.App.4th 1568,
1576–1577 [50 Cal.Rptr.3d 166], footnote omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 461–463
1 Wilcox, California Employment Law, Ch. 4, Payment of Wages, § 4.10; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.40 (Matthew
Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.16 (Matthew Bender)
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2754. Reporting Time Pay—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] scheduled or otherwise
required [him/her/nonbinary pronoun] to [report to work/report to work
for a second shift] but when [name of plaintiff] reported to work, [name of
defendant] [failed to put [name of plaintiff] to work/furnished a shortened
[workday/shift]]. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of defendant] was [a/an] [employer/[specify other
covered entity]];
2. That [name of plaintiff] was an employee of [name of defendant];
3. That [name of defendant] required [name of plaintiff] to report to
work for one or more [workdays/second shifts];
4. That [name of plaintiff] reported for work; and
5. That [name of defendant] [failed to put [name of plaintiff] to work/
furnished less than [half of the usual day’s work/two hours of
work on a second shift]].
If you find that [name of plaintiff] has proved all of the above elements,
you must determine the amount of wages [name of defendant] must pay
to [name of plaintiff]. For each workday when an employee reports to
work, as required, but is either not put to work or furnished with less
than half the usual day’s work, the employer must pay wages for half
the usual or scheduled day’s work at the employee’s regular rate of pay
(and in no event for less than two hours or more than four hours).
[Name of plaintiff]’s regular rate of pay in this case is [specify amount].
[For each occasion when an employee is required to report for a second
shift in the same workday but is furnished less than two hours of work,
the employer must pay wages for two hours at the employee’s regular
rate of pay.]
“Workday” means any consecutive 24-hour period beginning at the same
time each calendar day.
New November 2021
Directions for Use
This instruction is intended to instruct the jury on factual determinations required
for the judge to then calculate damages for the defendant’s failure to pay reporting
time under section 5 of the Industrial Welfare Commission’s wage orders. (Cal.
Code Regs., tit. 8, § 11010, subd. 5, § 11020, subd. 5, § 11030, subd. 5, § 11040,
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subd. 5, § 11050, subd. 5, § 11060, subd. 5, § 11070, subd. 5, § 11080, subd. 5,
§ 11090, subd. 5, § 11100, subd. 5, § 11110, subd. 5, § 11120, subd. 5, § 11130,
subd. 5, § 11140, subd. 5, § 11150, subd. 5, and § 11160, subd. 5.)
Select the appropriate bracketed language in the introductory paragraph and
elements 3 and 5, and indicate whether the plaintiff was not provided work at all or
was provided a shortened shift, or both, in the introductory paragraph and element
5. If the case involves both first and second shifts, the instruction will need to be
modified.
Element 1 may be omitted if there is no dispute regarding the defendant’s status as
an employer.
Include the bracketed next to last paragraph only if the plaintiff claims that the
defendant required the plaintiff to report for work a second time in a single
workday.
Sources and Authority
• “Employee” and “Employer” Defined. Title 8 California Code of Regulations
sections 11010–11160.
• “Person” Defined. Lab. Code section 18.
• Reporting Time Pay. Title 8 California Code of Regulations sections
11010–11160 (subd. 5 of each section).
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 432
1 Wilcox, California Employment Law, Ch. 1, Overview of Wage and Hour Laws,
§ 1.05; Ch. 3, Determining Compensable Hours and Proper Payment Amounts,
§ 3.13 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.71 (Matthew Bender)
2755–2799. Reserved for Future Use
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VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] perform work for [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Does [name of defendant] owe [name of plaintiff] wages under the
terms of the employment?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What is the amount of unpaid wages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2711, Nonpayment of Wages—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
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findings that are required in order to calculate the amount of prejudgment interest.
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VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] perform work for [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] paid less than the minimum wage by [name
of defendant] for some or all hours worked?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. How many hours was [name of plaintiff] paid less than the
minimum wage?
3. hours
4. What is the amount of wages owed? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2701, Nonpayment of Minimum
Wage—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. If there are multiple causes
of action, users may wish to combine the individual forms into one form. If
different damages are recoverable on different causes of action, replace the damages
tables in all of the verdict forms with CACI No. VF-3920, Damages on Multiple
Legal Theories.
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If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2702. Nonpayment of Overtime Compensation (Lab. Code,
§ 1194)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] perform work for [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] work overtime hours?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know, or should [name of defendant] have
known, that [name of plaintiff] had worked overtime hours?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff] paid at a rate lower than the legal
overtime compensation rate for any overtime hours that [he/she/
nonbinary pronoun] worked for [name of defendant]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What is the amount of wages owed? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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New September 2003; Revised December 2010, June 2015, December 2016
Directions for Use
This verdict form is based on CACI No. 2702, Nonpayment of Overtime
Compensation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab.
Code, §§ 203, 218)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] perform work for [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] discharge [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] willfully fail to [pay/tender payment of]
the full amount of wages earned by [name of plaintiff] on [his/her/
nonbinary pronoun] last day of employment?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. For how many calendar days following [name of plaintiff]’s last
day of employment did [name of defendant] willfully fail to [pay/
tender payment of] the full amount of [name of plaintiff]’s wages?
days.
4. Answer question 5.
5. What was [name of plaintiff]’s daily wage rate at the time [his/her/
nonbinary pronoun] employment ended? $ per day.
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2704, Damages—Waiting-Time Penalty for
Nonpayment of Wages. Depending on the facts of the case, other factual scenarios
can be substituted in questions 2, 3, and 4, as in elements 2, 3, and 4 in the
instruction.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2704. Solicitation of Employee by Misrepresentation (Lab.
Code, § 970)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make [a] representation(s) to [name of
plaintiff] about the kind, character, or existence of work?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Was/Were] [name of defendant]’s representation(s) untrue?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know the representation(s) [was/were]
untrue when made?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] intend that [name of plaintiff] rely on the
representation(s)?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of plaintiff] reasonably rely on [name of defendant]’s
representation(s) and move or change [his/her/nonbinary pronoun]
residence for the purpose of working for [name of defendant]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of plaintiff]’s reliance on [name of defendant]’s
representation(s) a substantial factor in causing harm to [name of
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plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2710, Solicitation of Employee by
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Misrepresentation—Essential Factual Elements. Depending on the facts of the case,
other factual scenarios can be substituted in question 1, as in element 1 in the
instruction.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2705. Preventing Subsequent Employment by
Misrepresentation (Lab. Code, § 1050)
We answer the questions submitted to us as follows:
1. After [name of plaintiff]’s employment with [name of defendant]
ended, did [name of defendant] make [a] representation(s) to [name
of prospective employer] about [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Was/Were] [name of defendant]’s representation(s) untrue?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know the representation(s) [was/were]
untrue when [he/she/nonbinary pronoun/it] made [it/them]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] make the representation(s) with the intent
of preventing [name of plaintiff] from obtaining employment?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2700, Preventing Subsequent Employment
by Misrepresentation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
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forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2706–VF-2799. Reserved for Future Use
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WORKERS’ COMPENSATION
2800. Employer’s Affirmative Defense—Injury Covered by Workers’ Compensation
2801. Employer’s Willful Physical Assault—Essential Factual Elements (Lab.
Code, § 3602(b)(1))
2802. Fraudulent Concealment of Injury—Essential Factual Elements (Lab. Code,
§ 3602(b)(2))
2803. Employer’s Defective Product—Essential Factual Elements (Lab. Code,
§ 3602(b)(3))
2804. Removal or Noninstallation of Power Press Guards—Essential Factual
Elements (Lab. Code, § 4558)
2805. Employee Not Within Course of Employment—Employer Conduct Unrelated
to Employment
2806–2809. Reserved for Future Use
2810. Coemployee’s Affirmative Defense—Injury Covered by Workers’
Compensation
2811. Co-Employee’s Willful and Unprovoked Physical Act of
Aggression—Essential Factual Elements (Lab. Code, § 3601(a)(1))
2812. Injury Caused by Co-Employee’s Intoxication—Essential Factual Elements
(Lab. Code, § 3601(a)(2))
2813–2899. Reserved for Future Use
VF-2800. Employer’s Willful Physical Assault (Lab. Code, § 3602(b)(1))
VF-2801. Fraudulent Concealment of Injury (Lab. Code, § 3602(b)(2))
VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3))
VF-2803. Removal or Noninstallation of Power Press Guards (Lab. Code, § 4558)
VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of Aggression
(Lab. Code, § 3601(a)(1))
VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab. Code, § 3601(a)(2))
VF-2806–VF-2899. Reserved for Future Use
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2800. Employer’s Affirmative Defense—Injury Covered by
Workers’ Compensation
[Name of defendant] claims that [name of plaintiff] was [name of
defendant]’s employee and therefore can only recover under California’s
Workers’ Compensation Act. To succeed on this defense, [name of
defendant] must prove all of the following:
1. That [name of plaintiff] was [name of defendant]’s employee;
2. That [name of defendant] [had workers’ compensation insurance
[covering [name of plaintiff] at the time of injury]/was self-insured
for workers’ compensation claims [at the time of [name of
plaintiff]’s injury]];
3. That [name of plaintiff]’s injury occurred while [he/she/nonbinary
pronoun] was working, or performing a task for or related to the
work [name of defendant] hired [him/her/nonbinary pronoun] to do;
and
4. That this [task/work] contributed to causing the injury.
Any person performing services for another, other than as an
independent contractor, is presumed to be an employee.
New September 2003; Revised October 2004, May 2018
Directions for Use
This instruction is intended for use if the plaintiff is suing a defendant claiming to
be the plaintiff’s employer. This instruction is not intended for use if the plaintiff is
suing under an exception to the workers’ compensation exclusivity rule.
Element 3 expresses the requirement that the employee be acting in the course of
employment at the time of injury. Element 4 expresses what is referred to as
“industrial causation”; that the work was a contributing cause of the injury. The two
requirements are different, and both must be proved. (See Lee v. West Kern Water
Dist. (2016) 5 Cal.App.5th 606, 625 [210 Cal.Rptr.3d 362].) For an instruction
asserting that element 3 does not apply, see CACI No. 2805, Employee Not Within
Course of Employment—Employer Conduct Unrelated to Employment.
For other instructions regarding employment status, such as special employment and
independent contractors, see instructions in the Vicarious Responsibility series
(CACI Nos. 3700–3726). These instructions may need to be modified to fit this
context.
Labor Code section 3351 defines “employee” for purposes of workers’
compensation. Labor Code section 3352 sets forth exceptions. This instruction
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should not be given if the plaintiff/employee has been determined to fall within a
statutory exception.
If appropriate to the facts of the case, see instructions on the going-and-coming rule
in the Vicarious Responsibility series. These instructions may need to be modified to
fit this context.
Sources and Authority
• Exclusive Remedy. Labor Code section 3602(a).
• Conditions of Compensation. Labor Code section 3600(a).
• If Conditions of Compensation Not Met. Labor Code section 3602(c).
• “Employee” Defined. Labor Code section 3351.
• Presumption of Employment Status. Labor Code section 3357.
• Failure to Secure Payment of Compensation. Labor Code section 3706.
• “[T]he basis for the exclusivity rule in workers’ compensation law is the
‘presumed “compensation bargain,” pursuant to which the employer assumes
liability for industrial personal injury or death without regard to fault in
exchange for limitations on the amount of that liability. The employee is
afforded relatively swift and certain payment of benefits to cure or relieve the
effects of industrial injury without having to prove fault but, in exchange, gives
up the wider range of damages potentially available in tort.’ ” (Fermino v.
Fedco, Inc. (1994) 7 Cal.4th 701, 708 [30 Cal.Rptr.2d 18, 872 P.2d 559], internal
citation omitted.)
• “Because an employer faced with a civil complaint seeking to enforce a common
law remedy which does not state facts indicating coverage by the act bears the
burden of pleading and proving ‘that the (act) is a bar to the employee’s
ordinary remedy,’ we believe that the burden includes a showing by the
employer-defendant, through appropriate pleading and proof, that he had
‘secured the payment of compensation’ in accordance with the provisions of the
act.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98, fn. 8 [151 Cal.Rptr. 347,
587 P.2d 1160], internal citations omitted.)
• “A defendant need not plead and prove that it has purchased workers’
compensation insurance where the plaintiff alleges facts that otherwise bring the
case within the exclusive province of workers’ compensation law, and no facts
presented in the pleadings or at trial negate the workers’ compensation law’s
application or the employer’s insurance coverage.” (Gibbs v. American Airlines,
Inc. (1999) 74 Cal.App.4th 1, 14 [87 Cal.Rptr.2d 554], internal citations
omitted.)
• “[T]he fact that an employee has received workers’ compensation benefits from
some source does not bar the employee’s civil action against an uninsured
employer. Instead, ‘[t]he price that must be paid by each employer for immunity
from tort liability is the purchase of a workers’ compensation policy [and where
the employer chooses] not to pay that price . . . it should not be immune from
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liability.’ ” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 987 [101
Cal.Rptr.2d 325], internal citations omitted.)
• “Under the Workers’ Compensation Act, employees are automatically entitled to
recover benefits for injuries ‘arising out of and in the course of the
employment.’ ‘When the conditions of compensation exist, recovery under the
workers’ compensation scheme “is the exclusive remedy against an employer for
injury or death of an employee.” ’ ” (Piscitelli v. Friedenberg (2001) 87
Cal.App.4th 953, 986 [105 Cal.Rptr.2d 88], internal citations omitted.)
• “Unlike many other states, in California workers’ compensation provides the
exclusive remedy for at least some intentional torts committed by an employer.
Fermino described a ‘tripartite system for classifying injuries arising in the
course of employment. First, there are injuries caused by employer negligence or
without employer fault that are compensated at the normal rate under the
workers’ compensation system. Second, there are injuries caused by ordinary
employer conduct that intentionally, knowingly or recklessly harms an employee,
for which the employee may be entitled to extra compensation under section
4553. Third, there are certain types of intentional employer conduct which bring
the employer beyond the boundaries of the compensation bargain, for which a
civil action may be brought.’ ” (Gunnell v. Metrocolor Laboratories, Inc. (2001)
92 Cal.App.4th 710, 723 [112 Cal.Rptr.2d 195], internal citations omitted.)
• “It has long been established in this jurisdiction that, generally speaking, a
defendant in a civil action who claims to be one of that class of persons
protected from an action at law by the provisions of the Workers’ Compensation
Act bears the burden of pleading and proving, as an affirmative defense to the
action, the existence of the conditions of compensation set forth in the statute
which are necessary to its application.” (Doney, supra, 23 Cal.3d at p. 96,
internal citations and footnote omitted.)
• “California courts have held worker’s compensation proceedings to be the
exclusive remedy for certain third party claims deemed collateral to or derivative
of the employee’s injury. Courts have held that the exclusive jurisdiction
provisions bar civil actions against employers by nondependent parents of an
employee for the employee’s wrongful death, by an employee’s spouse for loss
of the employee’s services or consortium, and for emotional distress suffered by
a spouse in witnessing the employee’s injuries.” (Snyder v. Michael’s Stores, Inc.
(1997) 16 Cal.4th 991, 997 [68 Cal.Rptr.2d 476, 945 P.2d 781], internal citations
omitted.)
• “ ‘An employer-employee relationship must exist in order to bring the . . . Act
into effect. (§ 3600)’ However, the coverage of the Act extends beyond those
who have entered into ‘traditional contract[s] of hire.’ ‘[S]ection 3351 provides
broadly that for the purpose of the . . . Act, “ ‘Employee’ means every person in
the service of an employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written . . . .’ ” Given this ‘section’s
explicit use of the disjunctive,’ a contract of hire is not ‘a prerequisite’ to the
existence of an employment relationship. Moreover, under section 3357, ‘[a]ny
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person rendering service for another, other than as an independent contractor, or
unless expressly excluded . . . , is presumed to be an employee.’ ” (Arriaga v.
County of Alameda (1995) 9 Cal.4th 1055, 1060–1061 [40 Cal.Rptr.2d 116, 892
P.2d 150], internal citations omitted.)
• “Given these broad statutory contours, we believe that an ‘employment’
relationship sufficient to bring the act into play cannot be determined simply
from technical contractual or common law conceptions of employment but must
instead be resolved by reference to the history and fundamental purposes
underlying the Workmen’s Compensation Act.” (Laeng v. Workmen’s Comp.
Appeals Bd. (1972) 6 Cal.3d 771, 777 [100 Cal.Rptr. 377, 494 P.2d 1], internal
citations omitted.)
• “[C]ourts generally are more exacting in requiring proof of an employment
relationship when such a relationship is asserted as a defense by the employer to
a common law action.” (Spradlin v. Cox (1988) 201 Cal.App.3d 799, 808 [247
Cal.Rptr. 347], internal citation omitted.)
• “The question of whether a person is an employee may be one of fact, of mixed
law and fact, or of law only. Where the facts are undisputed, the question is one
of law, and the Court of Appeal may independently review those facts to
determine the correct answer.” (Barragan v. Workers’ Comp. Appeals Bd. (1987)
195 Cal.App.3d 637, 642 [240 Cal.Rptr. 811], internal citations omitted.)
• “An employee may have more than one employer for purposes of workers’
compensation, and, in situations of dual employers, the second or ‘special’
employer may enjoy the same immunity from a common law negligence action
on account of an industrial injury as does the first or ‘general’ employer.
Identifying and analyzing such situations ‘is one of the most ancient and
complex questions of law in not only compensation but tort law.’ ” (Santa Cruz
Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 578 [239 Cal.Rptr.
578], internal citation omitted.)
• “In determining whether an employee is covered within the compensation system
and thus entitled to recover compensation benefits, the ‘definitional reach of
these covered employment relationships is very broad.’ A covered employee is
‘every person in the service of an employer under any appointment or contract
of hire or apprenticeship, express or implied, oral or written.’ ‘Any person
rendering service for another, other than as an independent contractor, or unless
expressly excluded herein, is presumed to be an employee.’ . . . [T]hese
provisions mandate a broad and generous interpretation in favor of inclusion in
the system. Necessarily the other side of that coin is a presumption against the
availability of a tort action where an employment relation exists. One result
cannot exist without the other. Further, this result does not depend upon
‘informed consent,’ but rather on the parties’ legal status. . . . [W]here the facts
of employment are not disputed, the existence of a covered relationship is a
question of law.” (Santa Cruz Poultry, Inc., supra, 194 Cal.App.3d at pp.
583–584, internal citations omitted.)
• “ ‘The requirement of . . . section 3600 is twofold. On the one hand, the injury
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must occur “in the course of the employment.” This concept “ordinarily refers to
the time, place, and circumstances under which the injury occurs.” Thus “ ‘[a]n
employee is in the “course of his employment” when he does those reasonable
things which his contract with his employment expressly or impliedly permits
him to do.’ ” And, ipso facto, an employee acts within the course of his
employment when “ ‘performing a duty imposed upon him by his employer and
one necessary to perform before the terms of the contract [are] mutually
satisfied.’ ” ’ [¶] ‘On the other hand, the statute requires that an injury “arise out
of” the employment. . . . It has long been settled that for an injury to “arise out
of the employment” it must “occur by reason of a condition or incident of [the]
employment . . . .” That is, the employment and the injury must be linked in
some causal fashion.’ ” (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17
Cal.4th 644, 651 [72 Cal.Rptr.2d 217, 951 P.2d 1184], internal citations and
footnote omitted.)
• “The requirements that an injury arise out of employment or be proximately
caused by employment are sometimes referred to together as the requirement of
industrial causation. It is a looser concept of causation than the concept of
proximate cause employed in tort law. In general, the industrial causation
requirement is satisfied ‘if the connection between work and the injury [is] a
contributing cause of the injury . . . .’ ” (Lee v. West Kern Water Dist. (2016) 5
Cal.App.5th 606, 624 [210 Cal.Rptr.3d 362], internal citation omitted.)
• “For our purposes here, it is important that ‘arising out of’ and ‘in the course of’
are two separate requirements. Even if it is conceded that an employee was
injured while performing job tasks in the workplace during working hours, the
exclusivity rule applies only if it also is shown that the work was a contributing
cause of the injury.” (Lee, supra, 5 Cal.App.5th at p. 625.)
• “The jury could properly make this finding [that conduct was not within scope
of employment] by applying special instruction No. 5, the instruction stating that
an employer’s conduct falls outside the workers’ compensation scheme when an
employer steps outside of its proper role or engages in conduct unrelated to the
employment. This instruction stated the doctrine of Fermino correctly.” (Lee,
supra, 5 Cal.App.5th at pp. 628–629.)
• “The concept of ‘scope of employment’ in tort is more restrictive than the phrase
‘arising out of and in the course of employment,’ used in workers’
compensation.” (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86
Cal.App.4th 1053, 1057 [103 Cal.Rptr.2d 790], internal citations omitted.)
• “Whether an employee’s injury arose out of and in the course of her
employment is generally a question of fact to be determined in light of the
circumstances of the particular case. However, where the facts are undisputed,
resolution of the question becomes a matter of law.” (Wright v. Beverly Fabrics,
Inc. (2002) 95 Cal.App.4th 346, 353 [115 Cal.Rptr.2d 503], internal citations
omitted.)
• “Injuries sustained while an employee is performing tasks within his or her
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employment contract but outside normal work hours are within the course of
employment. The rationale is that the employee is still acting in furtherance of
the employer’s business.” (Wright, supra, 95 Cal.App.4th at p. 354.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 23–49
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:520 et seq., 15:555 (The Rutter
Group)
1 Hanna, California Law of Employee Injuries and Workers’ Compensation (2d ed.)
Ch. 4, §§ 4.03–4.06 (Matthew Bender)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 10, The Injury,
§ 10.09 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.10
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§§ 10.02, 10.03[3], 10.10 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.310, 577.530 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
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2801. Employer’s Willful Physical Assault—Essential Factual
Elements (Lab. Code, § 3602(b)(1))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] assaulted [him/her/nonbinary pronoun]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert one of the following:]
1. [engaged in physical conduct that a reasonable person would
perceive to be a real, present, and apparent threat of bodily
harm;]
1. [touched [name of plaintiff] [or caused [name of plaintiff] to be
touched] in a harmful or offensive manner];
2. That [name of defendant] intended to harm [name of plaintiff];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction is intended for use in cases in which the employer is the defendant
and the plaintiff alleges the case falls outside of the workers’ compensation
exclusivity rule. Use the first bracketed option in element 1 for cases involving
assault. Use the second bracketed option for cases involving battery.
Do not use instructions on assault and battery (CACI No. 1300, Battery—Essential
Factual Elements, and CACI No. 1301, Assault—Essential Factual Elements). For
an instruction on ratification, see CACI No. 3710, Ratification.
Sources and Authority
• Exclusive Remedy: Willful Physical Assault Exception. Labor Code section
3602(b)(1).
• “[T]he 1982 amendments were not intended to provide an exhaustive list of
exceptions to the exclusivity rule. They did not, for example, foreclose the
recognition of an exception for injuries stemming from wrongful discharges that
violated public policy, an issue that neither the Legislature nor the judicial
system had confronted in 1982. Section 3602 only applies ‘[w]here the
conditions . . . set forth in section 3600 concur,’ and does not purport to resolve
the ambiguities in that latter section discussed above, nor to definitively delineate
the scope of the compensation bargain that has been the key to construing the
meaning of section 3600. Rather, section 3602 merely confirms the judicial
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recognition of certain types of employer acts as outside the compensation
bargain, even as it reinforces the exclusivity rule by repealing the dual capacity
doctrine.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30 Cal.Rptr.2d 18,
872 P.2d 559], internal citation omitted.)
• “[In Magliulo v. Superior Court,] [t]he employee sued the employer for assault
and battery, and the court rejected the employer’s argument that workers’
compensation benefits were the exclusive remedy. The court noted that section
3601 allowed lawsuits for assaults by coemployees, and reasoned that ‘[i]f the
employee can recover both compensation and damages caused by an intentional
assault by a fellow worker, he should have no less right because the fellow
worker happens to be his boss.’ ” (Soares v. City of Oakland (1992) 9
Cal.App.4th 1822, 1826 [12 Cal.Rptr.2d 405], internal citation omitted.)
• “Section 3602(b)(1) was enacted in 1982, 23 years after enactment of section
3601, subdivision (a)(1), to codify the result in Magliulo v. Superior Court.”
(Soares, supra, 9 Cal.App.4th at p. 1826, internal citations omitted.)
• “We conclude . . . that ‘willful’ employer assaults within the meaning of section
3602(b)(1) do not include all common law batteries, but only those batteries that
are specifically intended to injure.” (Soares, supra, 9 Cal.App.4th at pp.
1828–1829.)
• “ ‘The modern view respecting actionable intentional misconduct by the
employer is that it must be alleged and proved that the employer “acted
deliberately with the specific intent to injure” the employee.’ ” (Arendell v. Auto
Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1265 [35 Cal.Rptr.2d 83], internal
citations omitted.)
• “[B]odily contact is not necessary for a physical assault.” (Herrick v. Quality
Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617 [24 Cal.Rptr.2d
203].)
• “Herrick explained that bodily contact was not necessary for a ‘physical assault,’
but that physical assault occurred when someone engaged in physical conduct
which a reasonable person would perceive to be a real, present and apparent
threat of bodily harm.” (Gunnell v. Metrocolor Laboratories, Inc. (2001) 92
Cal.App.4th 710, 728 [112 Cal.Rptr.2d 195], internal citation omitted.)
• “[W]e conclude that the exception to the exclusivity rule contained in section
3602, subdivision (b)(1), does not authorize a civil action against an employer
for injury resulting from the willful assault of a coemployee based on a theory
of respondeat superior.” (Fretland v. County of Humboldt (1999) 69 Cal.App.4th
1478, 1489 [82 Cal.Rptr.2d 359].)
• “[C]ourts have also recognized that an employer can be held civilly liable as a
joint participant in assaultive conduct committed by its employee pursuant to the
doctrine of ratification.” (Fretland, supra, 69 Cal.App.4th at pp. 1489–1490.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation, § 49
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Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage,
¶¶ 5:655, 5:656–5:657, 15:527, 15:566–15:567, 15:570–15:571 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§§ 20.12[1][b], 20.41 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.17, 577.314[2] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
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2802. Fraudulent Concealment of Injury—Essential Factual
Elements (Lab. Code, § 3602(b)(2))
[Name of plaintiff] claims that [he/she/nonbinary pronoun/[name of
decedent]] was harmed because [name of defendant] fraudulently
concealed the fact that [name of plaintiff/decedent] had been injured on
the job. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff/decedent] was injured on the job;
2. That [name of defendant] knew that [name of plaintiff/decedent] had
suffered a job-related injury;
3. That [name of defendant] concealed this knowledge from [name of
plaintiff/decedent]; and
4. That [name of plaintiff/decedent]’s injury was made worse as a
result of this concealment.
If [name of plaintiff] establishes this claim, [he/she/nonbinary pronoun]
must prove the total damages caused by the injury. [Name of defendant]
must prove the damages that [name of plaintiff/decedent] would have
sustained even if [name of defendant] had not concealed the injury. [Name
of plaintiff] is entitled to recover the difference between the two amounts.
New September 2003
Directions for Use
This instruction is intended for cases where the employer is the defendant and the
plaintiff alleges the case falls outside of the workers’ compensation exclusivity rule.
This instruction pertains to aggravation of an injury caused by concealment.
Sources and Authority
• Exclusive Remedy: Fraudulent Concealment Exception. Labor Code Section
3602(b)(2).
• “[T]he 1982 amendments were not intended to provide an exhaustive list of
exceptions to the exclusivity rule. They did not, for example, foreclose the
recognition of an exception for injuries stemming from wrongful discharges that
violated public policy, an issue that neither the Legislature nor the judicial
system had confronted in 1982. Section 3602 only applies ‘[w]here the
conditions . . . set forth in section 3600 concur,’ and does not purport to resolve
the ambiguities in that latter section discussed above, nor to definitively delineate
the scope of the compensation bargain that has been the key to construing the
meaning of section 3600. Rather, section 3602 merely confirms the judicial
recognition of certain types of employer acts as outside the compensation
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bargain, even as it reinforces the exclusivity rule by repealing the dual capacity
doctrine.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30 Cal.Rptr.2d 18,
872 P.2d 559], internal citation omitted.)
• “In general, the Workers’ Compensation Act provides an employee with his or
her exclusive remedy for a work-related injury. Subject to narrow exceptions,
‘where the . . . conditions of compensation concur,’ an injured employee cannot
maintain a civil action against his or her employer or another employee.” (Lopez
v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430 [124 Cal.Rptr.2d 227],
internal citation omitted.)
• “[A]n employee seeking to state a cause of action against an employer under
section 3602(b)(2) must ‘in general terms’ plead facts that if found true by the
trier of fact, establish the existence of three essential elements: (1) the employer
knew that the plaintiff had suffered a work-related injury; (2) the employer
concealed that knowledge from the plaintiff; and (3) the injury was aggravated
as a result of such concealment.” (Palestini v. General Dynamics Corp. (2002)
99 Cal.App.4th 80, 89–90 [120 Cal.Rptr.2d 741], internal citation omitted.)
• “While there are no cases defining the term ‘fraudulent concealment’ as used in
the section, its general meaning is not difficult to discern. According to both
statute and case law, the failure to disclose facts may constitute fraud if the party
with knowledge has a duty to make disclosure. We have no reason to believe
that the term ‘fraudulent concealment’ as used in subdivision (b)(2) was intended
to have a meaning other than this.” (Foster v. Xerox Corp. (1985) 40 Cal.3d 306,
309–310 [219 Cal.Rptr. 485, 707 P.2d 858], internal citations omitted.)
• “An employer’s actual knowledge of the existence of an employee’s injury
connected with the employment is a necessary prerequisite to establishing a
claim against the employer for fraudulent concealment under section 3602(b)(2).
This principle is based on the rationale that an employer cannot be held liable
under section 3602(b)(2) for concealing something of which it had no
knowledge.” (Palestini, supra, 99 Cal.App.4th at p. 93, internal citations
omitted.)
• “In order to succeed in their attempt to remove their case from the workers’
compensation law, appellants first had to show an ‘injury.’ They then had to
prove that the injury was aggravated by Firestone’s fraudulent concealment of
the existence of the injury and its connection with the employment.” (Santiago v.
Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318, 1330 [274 Cal.Rptr.
576], internal citation omitted.)
• “The Supreme Court in Johns-Manville recognized that the aggravation of an
injury that results when an employer fraudulently conceals the injury’s cause is a
harm distinct from the injury itself. For this reason, aggravation that results
when an employer fraudulently conceals an injury’s cause remains actionable
even though the injured party has recovered worker’s compensation benefits for
the injury itself.” (Aerojet General Corp. v. Superior Court (1986) 177
Cal.App.3d 950, 956 [223 Cal.Rptr. 249], internal citation omitted.)
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Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 50, 51
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:526.1, 15:570, 15:570.5–15:570.6,
15:590 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][c] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][d] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.314[3], 577.525 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
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2803. Employer’s Defective Product—Essential Factual Elements
(Lab. Code, § 3602(b)(3))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
a defective product manufactured by [name of defendant]. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That the [product] was manufactured by [name of defendant];
2. That the [product] was [sold/leased/transferred for valuable
consideration] to an independent third person;
3. That the third person then provided the [product] for [name of
plaintiff]’s use;
4. That the [product] was defective in design or manufacture;
5. That [name of plaintiff] was harmed; and
6. That the [product] was a substantial factor in causing [name of
plaintiff]’s harm.
New September 2003
Directions for Use
This instruction is intended for use in cases where the employer is the defendant
and the plaintiff alleges that the case falls outside of the workers’ compensation
exclusivity rule. See the Products Liability series (CACI Nos. 1200–1243) for
instructions on product defect.
Sources and Authority
• Exclusive Remedy: Defective Product Exception. Labor Code section 3602(b)(3).
• “[T]he 1982 amendments were not intended to provide an exhaustive list of
exceptions to the exclusivity rule. They did not, for example, foreclose the
recognition of an exception for injuries stemming from wrongful discharges that
violated public policy, an issue that neither the Legislature nor the judicial
system had confronted in 1982. Section 3602 only applies ‘[w]here the
conditions . . . set forth in section 3600 concur,’ and does not purport to resolve
the ambiguities in that latter section discussed above, nor to definitively delineate
the scope of the compensation bargain that has been the key to construing the
meaning of section 3600. Rather, section 3602 merely confirms the judicial
recognition of certain types of employer acts as outside the compensation
bargain, even as it reinforces the exclusivity rule by repealing the dual capacity
doctrine.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30 Cal.Rptr.2d 18,
872 P.2d 559], internal citation omitted.)
• “The language ‘provided for the employee’s use’ indicates the product must be
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given or furnished to the employee in order for the employee to accomplish
some task.” (Behrens v. Fayette Manufacturing Co. (1992) 4 Cal.App.4th 1567,
1574 [7 Cal.Rptr.2d 264].)
• “Our interpretation is in accord with that of commentators who have noted that
the exception of subdivision (b)(3) requires the employee to come into contact
with the defective product as a consumer.” (Behrens, supra, 4 Cal.App.4th at p.
1574, internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation, § 69
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶ 15:571 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][d] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][e] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.314[4] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
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2804. Removal or Noninstallation of Power Press
Guards—Essential Factual Elements (Lab. Code, § 4558)
A “power press” is a machine that forms materials with a die in the
manufacture of other products. A “die” is a tool that imparts shape to
material by pressing against or through the material. A “guard” is any
device that keeps a worker’s hands or other parts of the body outside
the point of operation.
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] [removed/failed to install] guards on a power
press. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was [name of plaintiff]’s
[employer/supervisor];
2. That [name of plaintiff] was injured while operating a power
press;
3. That [name of defendant] gave an affirmative instruction to
[remove/not install] the guards before [name of plaintiff]’s injury;
4. That when [name of defendant] did so, [he/she/nonbinary pronoun/
it] knew that the lack of guards would create a probability of
serious injury or death;
5. That the power press’s [designer/fabricator/assembler] [designed
the press with guards/installed guards on the press/required
guards be attached/specified that guards be attached] and directly
or indirectly conveyed this information to [name of defendant];
and
6. That [name of defendant]’s [removal/failure to install] the guards
was a substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2011
Directions for Use
This instruction is for use if the plaintiff alleges that the claim for injury or death
falls outside of the workers’ compensation exclusivity rule because the employer
removed or failed to install power press guards. (See Lab. Code § 4558.)
Sources and Authority
• Exclusive Remedy: Power-Press Guard Exception. Labor Code section 4558.
• “The obvious legislative intent and purpose in section 4558 is to protect workers
from employers who wilfully remove or fail to install appropriate guards on
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large power tools. Many of these power tools are run by large mechanical
motors or hydraulically. . . . These sorts of machines are difficult to stop while
they are in their sequence of operation. Without guards, workers are susceptible
to extremely serious injuries. For this reason, the Legislature passed section
4558, subdivision (b), which subjects employers to legal liability for removing
guards from powerful machinery where the manufacturer has designed the
machine to have a protective guard while in operation.” (LeFiell Manufacturing
Co. v. Superior Court (2014) 228 Cal.App.4th 883, 892 [175 Cal.Rptr.3d 894].)
• “A cause of action under section 4558 includes the following elements: (a) that
the injury or death is proximately caused by the employer’s knowing removal of,
or knowing failure to install, a point of operation guard on a power press; and
(b) that this removal or failure to install is specifically authorized by the
employer under conditions known by the employer to create a probability of
serious injury or death.” (Saldana v. Globe-Weis Systems Co. (1991) 233
Cal.App.3d 1505, 1516 [285 Cal.Rptr. 385].)
• “A power press is ‘any material-forming machine that utilizes a die which is
designed for use in the manufacture of other products.’ ‘This definition entails
four elements. The power press itself is a machine. It is a machine that forms
materials. The formation of materials is effectuated with a die. Finally, the
materials being formed with the die are being formed in the manufacture of
other products.’ ” (LeFiell, supra, 228 Cal.App.4th at p. 893.)
• “The meaning of the term ‘point of operation guard’ in section 4558 is a legal
question.” (LeFiell, supra, 228 Cal.App.4th at p. 893.)
• “[T]he type of injury excluded from the workers’ compensation system in section
4558 arises from the inherent danger to hands and other body parts at the point
in which the die shapes the material in the absence of guards or safety devices.”
(LeFiell, supra, 228 Cal.App.4th at p. 897.)
• “Limiting the definition of ‘point of operation guard’ to the area where the die
forms the material on a power press is consistent with the legislative purpose in
enacting section 4558.” (LeFiell, supra, 228 Cal.App.4th at p. 895.)
• “From the plain language of section 4558, it is clear that an exception to the
exclusivity of workers’ compensation only arises for a power press injury where
the employer has been expressly informed by the manufacturer that a point of
operation guard is required, where the employer then affirmatively removes or
fails to install such guard, and where the employer does so under conditions
known by the employer to create a probability of serious injury or death. Absent
facts which would establish the employer’s knowledge or action regarding the
absence of a point of operation guard on a power press, the incident would not
come within the exception of section 4558, and an employee would not be
entitled to bring ‘an action at law for damages’ arising from the power press
injury. If such action cannot be brought on its own where the facts fail to
establish all the elements of the power press exception under section 4558, it
follows that individual causes of action against an employer which do not meet
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the requirements of section 4558 cannot be bootstrapped onto a civil action for
damages which is properly brought under section 4558.” (Award Metals, Inc. v.
Superior Court (1991) 228 Cal.App.3d 1128, 1134 [279 Cal.Rptr. 459].)
• “In all its pertinent uses, then, the term ‘die’ refers to a tool that imparts shape
to material by pressing or impacting against or through the material, that is, by
punching, stamping or extruding; in none of its uses does the term refer to a tool
that imparts shape by cutting along the material in the manner of a blade.”
(Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 285 [92 Cal.Rptr.2d
465, 991 P.2d 1256].)
• “[U]nder subdivisions (a)(2) and (c), liability for ‘failure to install’ a point of
operation guard under section 4558 must be predicated upon evidence that the
‘manufacturer’ either provided or required such a device, which was not installed
by the employer.” (Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th
1019, 1027 [20 Cal.Rptr.2d 666].)
• “We find that the term guard, as used in section 4558, is meant to include the
myriad apparatus which are available to accomplish the purpose of keeping the
hands of workers outside the point of operation whenever the ram is capable of
descending. Because we find that the term guard is not a specific legal term of
art, we hold that the trial court properly provided the jury with a dictionary
definition of the term guard to explain its meaning under section 4558.”
(Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [282 Cal.Rptr. 161],
internal citation omitted; cf. Gonzalez v. Seal Methods, Inc. (2014) 223
Cal.App.4th 405, 410 [166 Cal.Rptr.3d 895] [point of operation guard does not
include unattached device, such as a safety block, that the worker moves into
and out of the point of operation].)
• “Physical removal, for the purpose of liability under section 4558, means to
render a safeguarding apparatus, whether a device or point of operation guard,
dysfunctional or unavailable for use by the operator for the particular task
assigned.” (Bingham, supra, 231 Cal.App.3d at p. 68.)
• “Nothing in the language, history or objectives underlying section 4558
convinces us that the Legislature intended that section 4558 would immunize
employers who design, manufacture and install their own power presses without
point of operation guards. A manufacturer is defined broadly in section 4558 as a
‘designer, fabricator, or assembler of a power press.’ An ‘employer’ is not
excluded from the definition of a manufacturer, nor would doing so promote the
objectives of the statute.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp.
1029–1030, internal citation omitted.)
• “The element of knowledge requires ‘actual awareness’ by the employer—rather
than merely constructive knowledge—that a point of operation guard has either
been provided for or is required to prevent the probability of serious injury or
death.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp. 1031–1032, internal
citation and footnote omitted.)
• “Liability under section 4558 can only be imposed if the employer fails to use or
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removes a safety device required by the manufacturer of the press. Essentially,
the culpable conduct is the employer’s ignoring of the manufacturer’s safety
directive . . . . ‘From the plain language of section 4558, it is clear that an
exception to the exclusivity of workers’ compensation only arises for a power
press injury where the employer has been expressly informed by the
manufacturer that a point of operation guard is required, where the employer
then affirmatively removes or fails to install such guard, and where the employer
does so under conditions known by the employer to create a probability of
serious injury or death.’ ” (Aguilera v. Henry Soss & Co. (1996) 42 Cal.App.4th
1724, 1730 [50 Cal.Rptr.2d 477], internal citation omitted.)
• “As defined in the statute, ‘specifically authorized’ requires an ‘affirmative
instruction’ by the employer, as distinguished from mere acquiescence in or
ratification of an act or omission.” (Mora v. Hollywood Bed & Spring (2008)
164 Cal.App.4th 1061, 1068 [79 Cal.Rptr.3d 640].)
• “Specific authorization demands evidence of an affirmative instruction or other
wilful acts on the part of the employer despite actual knowledge of the
probability of serious harm.” (Flowmaster, Inc., supra, 16 Cal.App.4th at p.
1032, internal citation and footnote omitted.)
• “[I]mputation solely because of an agency relationship cannot bring an employer
within the reach of section 4558. Only an employer who directly authorized by
an affirmative instruction the removal or failure to install a guard may be sued at
law under section 4558.” (Watters Associates v. Superior Court (1990) 218
Cal.App.3d 1322, 1325 [267 Cal.Rptr. 696].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 55–57, 108
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating To Occupational Safety And Health, ¶ 13:953 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶ 15:572 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][e] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][f] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.314[5] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, §§ 239.24, 239.41 (Matthew Bender)
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2805. Employee Not Within Course of Employment—Employer
Conduct Unrelated to Employment
A claim is not barred by workers’ compensation if the employer engages
in conduct unrelated to the employment or steps outside of its proper
role.
New November 2017; Revised May 2020
Directions for Use
This instruction presents the so-called Fermino exception to the exclusivity of
workers’ compensation. (See Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701 [30
Cal.Rptr.2d 18, 872 P.2d 559].) Its purpose is to rebut element 3 of CACI No. 2800,
Employer’s Affırmative Defense—Injury Covered by Workers’ Compensation. Per
element 3, the injury falls within the exclusive remedy of workers’ compensation if
it occurred while the employee was performing the work that the employee was
required to do. The Fermino exception changes the focus from what the employee
was doing when injured to what the employer was doing that may have caused the
injury. The exclusive remedy does not apply if the employer caused the injury
through conduct unrelated to the work. (Id., 7 Cal.4th at p. 717.)
Sources and Authority
• “[N]ormal employer actions causing injury would not fall outside the scope of
the exclusivity rule merely by attributing to the employer a sinister intention.
Conversely, . . . actions by employers that have no proper place in the
employment relationship may not be made into a ‘normal’ part of the
employment relationship merely by means of artful terminology. Indeed,
virtually any action by an employer can be characterized as a ‘normal part of
employment’ if raised to the proper level of abstraction.” (Fermino, supra, 7
Cal.4th at p. 717 [30 Cal.Rptr.2d 18, 872 P.2d 559].)
• “[C]ertain types of injurious employer misconduct remain outside this bargain.
There are some instances in which, although the injury arose in the course of
employment, the employer engaging in that conduct ‘ “stepped out of [its] proper
role[]” ’ or engaged in conduct of ‘ “questionable relationship to the
employment.” ’ ” (Fermino, supra, 7 Cal.App.4th at p. 708.)
• “[CACI No. 2800] was correctly given, however, because the evidence was able
to support a finding that the work was not a contributing cause of the injury. [¶]
The jury could properly make this finding by applying special instruction No. 5,
the instruction stating that an employer’s conduct falls outside the workers’
compensation scheme when an employer steps outside of its proper role or
engages in conduct unrelated to the employment. This instruction stated the
doctrine of Fermino correctly. If the jury found that carrying out the mock
robbery was not within the employer’s proper role, it could also find that
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unwittingly participating in the mock robbery as a victim was not part of the
employee’s work.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606,
628–629 [210 Cal.Rptr.3d 362].)
• “The jury could properly find the injury did not arise out of the employee’s work
because it was caused by such employer action and therefore the conditions of
compensation did not exist. To hold that the jury must first find the injury to be
within the conditions of compensation and then find it also to be within the
Fermino exception, instead of simply finding that the conditions of compensation
were not met in the first place in light of Fermino, would be elevating form over
substance.” (Lee, supra, 5 Cal.App.5th at p. 629.)
• “[T]he exclusive remedy provisions are not applicable under certain
circumstances, sometimes variously identified as ‘conduct where the employer or
insurer stepped out of their proper roles’ [citations], or ‘conduct of an employer
having a “questionable” relationship to the employment’ [citations], but which
may be essentially defined as not stemming from a risk reasonably encompassed
within the compensation bargain.” (Light v. Department of Parks & Recreation
(2017) 14 Cal.App.5th 75, 97 [221 Cal.Rptr.3d 668].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation, § 62
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption—Preemption Defenses, ¶ 15:526 (The Rutter
Group)
2 Wilcox, California Employment Law, Ch. 20, Workers’ Compensation, § 20.13
(Matthew Bender)
Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 11,
Actions Against the Employer Under State Law and Third-Party Tort Actions,
§ 11.05 (Matthew Bender)
52 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.315 (Matthew Bender)
20 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.39 (Matthew Bender)
California Workers’ Compensation Law and Practice, Ch. 2, Jurisdiction, § 2:122
(James Publishing)
2806–2809. Reserved for Future Use
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2810. Coemployee’s Affirmative Defense—Injury Covered by
Workers’ Compensation
[Name of defendant] claims that [he/she/nonbinary pronoun] is not
responsible for any harm that [name of plaintiff] may have suffered
because [he/she/nonbinary pronoun] was [name of defendant]’s coemployee
and therefore can recover only under California’s Workers’
Compensation Act. To succeed, [name of defendant] must prove all of the
following:
1. That [name of plaintiff] and [name of defendant] were [name of
employer]’s employees;
2. That [name of employer] [had workers’ compensation insurance
[covering [name of plaintiff] at the time of injury]/was self-insured
for workers’ compensation claims [at the time of [name of
plaintiff]’s injury]]; and
3. That [name of defendant] was acting in the scope of
[his/her/nonbinary pronoun] employment at the time [name of
plaintiff] claims [he/she/nonbinary pronoun] was harmed.
New September 2003; Revised October 2004, May 2020
Directions for Use
This instruction is intended for use if a coemployee is the defendant and that
coemployee claims that the case falls within the workers’ compensation exclusivity
rule. For instructions on scope of employment see instructions in the Vicarious
Liability series (CACI Nos. 3700–3726). Scope of employment in this instruction is
the same as in the context of respondeat superior. (Hendy v. Losse (1991) 54 Cal.3d
723, 740 [1 Cal.Rptr.2d 543, 819 P.2d 1].) See instructions in the Vicarious
Responsibility series regarding the definition of “scope of employment.”
Sources and Authority
• Exclusive Remedy. Labor Code section 3601.
• “Employee” Defined. Labor Code section 3351.
• Presumption of Employment Status. Labor Code section 3357.
• “CACI No. 2810, which the trial court gave to the jury, is intended for use when
a coemployee defendant asserts the exclusivity rule as a defense. It has three
elements: (1) the plaintiff and the coemployee were employees of the employer;
(2) the employer had a workers’ compensation insurance policy covering the
plaintiff at the time of injury; and (3) the coemployee was acting in the scope of
his or her employment at the time of injury.” (Lee v. West Kern Water Dist.
(2016) 5 Cal.App.5th 606, 633 [210 Cal.Rptr.3d 362].)
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• “Labor Code section 3601 affords coemployees the benefit of the exclusivity rule
only ‘[w]here the conditions of compensation set forth in Section 3600
concur . . . .’ Those conditions, as has been mentioned, include the requirement
of industrial causation.” (Lee, supra, 5 Cal.App.5th at p. 634, internal citation
omitted.)
• “[A] coemployee’s conduct is within the scope of his or her employment if it
could be imputed to the employer under the doctrine of respondeat superior. If
the coemployee was not ‘engaged in any active service for the employer,’ the
coemployee was not acting within the scope of employment.” (Hendy, supra, 54
Cal.3d at p. 740, internal citation omitted.)
• “[G]enerally speaking, a defendant in a civil action who claims to be one of that
class of persons protected from an action at law by the provisions of the
Workers’ Compensation Act bears the burden of pleading and proving, as an
affirmative defense to the action, the existence of the conditions of compensation
set forth in the statute which are necessary to its application.” (Doney v.
Tambouratgis (1979) 23 Cal.3d 91, 96 [151 Cal.Rptr. 347, 587 P.2d 1160].)
• “In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1006 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 73, 74
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage, ¶ 5:624
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶ 12:192 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating to Occupational Safety and Health, ¶ 13:951 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:546, 15:569, 15:632 (The Rutter
Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
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CACI No. 2810 WORKERS’ COMPENSATION
§ 577.316 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
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2811. Co-Employee’s Willful and Unprovoked Physical Act of
Aggression—Essential Factual Elements (Lab. Code, § 3601(a)(1))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] assaulted [him/her/nonbinary pronoun]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert one of the following:]
1. [engaged in physical conduct that a reasonable person would
perceive to be a real, present and apparent threat of bodily
harm;]
1. [touched [name of plaintiff] [or caused [name of plaintiff] to be
touched] in a harmful or offensive manner;]
1. [insert other act of physical aggression];
2. That [name of defendant]’s conduct was unprovoked;
3. That [name of defendant] intended to harm [name of plaintiff];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction is intended for use in cases where a co-employee is the defendant
and the plaintiff alleges that the case falls outside of the workers’ compensation
exclusivity rule. If this instruction is used, do not use standard tort instructions on
assault and battery.
Sources and Authority
• Exclusive Remedy: Exception for Coemployee’s Willful and Unprovoked
Physical Act. Labor Code section 3601(a)(1).
• “As relevant here, a civil suit is permissible when an employee proximately
causes another employee’s injury or death by a ‘willful and unprovoked physical
act of aggression’ or by intoxication. If an employee brings a lawsuit against a
coemployee based on either of these exceptions, the employer is not ‘held liable,
directly or indirectly, for damages awarded against, or for a liability incurred by
the other employee . . . .’ This provision is consistent with the view that a
coemployee is immune from suit to the extent necessary to prevent an end-run
against the employer under the exclusivity rule. ‘It is self-evident that Labor
Code section 3601 did not establish or create a new right or cause of action in
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the employee but severely limited a preexisting right to freely sue a fellow
employee for damages.’ ” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1002 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations and
footnotes omitted.)
• “[W]e conclude an ‘unprovoked physical act of aggression’ is unprovoked
conduct intended to convey an actual, present, and apparent threat of bodily
injury. A ‘threat,’ of course, is commonly understood as ‘an expression of
intention to inflict evil, injury, or damage’ and as ‘[a] communicated intent to
inflict harm or loss on another . . . .’ Thus, ‘unprovoked physical act of
aggression’ logically contemplates intended injurious conduct. By adding the
term ‘willful,’ the Legislature has underscored the need for an intent to bring
about the consequences of that expression, i.e., an intent to inflict injury or
harm.” (Torres, supra, 26 Cal.4th at p. 1005, internal citations omitted.)
• “As with other mental states, plaintiffs may rely on circumstantial evidence to
prove the intent to injure.” (Torres, supra, 26 Cal.4th at p. 1009.)
• “[T]o invoke civil liability under section 3601, subdivision (a)(1), a physical act
causing a reasonable fear of harm must be pleaded and proved, but the resulting
harm need not also be physical.” (Iverson v. Atlas Pacific Engineering (1983)
143 Cal.App.3d 219, 225 [191 Cal.Rptr. 696].)
• “We agree that conduct constituting a common law assault may be actionable
under section 3601(a)(1), provided that the conduct was intended to injure
. . . .” (Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1829 [12
Cal.Rptr.2d 405].)
• “In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres, supra, 26 Cal.4th at p. 1006, internal citations
omitted.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 73, 74
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage, ¶ 5:624
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating to Occupational Safety and Health, ¶¶ 13:951, 13:962
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:546, 15:569, 15:632 (The Rutter
Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
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(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.316 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
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2812. Injury Caused by Co-Employee’s Intoxication—Essential
Factual Elements (Lab. Code, § 3601(a)(2))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] was intoxicated. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] [insert description of injury-producing
conduct];
2. That [name of defendant] was intoxicated;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s intoxication was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction is intended for use in cases where a co-employee is the defendant
and the plaintiff alleges that the case falls outside of the workers’ compensation
exclusivity rule.
Sources and Authority
• Exclusive Remedy: Exception for Act of Intoxicated Coemployee. Labor Code
section 3601(a)(2).
• “As relevant here, a civil suit is permissible when an employee proximately
causes another employee’s injury or death by a ‘willful and unprovoked physical
act of aggression’ or by intoxication. If an employee brings a lawsuit against a
coemployee based on either of these exceptions, the employer is not ‘held liable,
directly or indirectly, for damages awarded against, or for a liability incurred by
the other employee . . . .’ This provision is consistent with the view that a
coemployee is immune from suit to the extent necessary to prevent an end-run
against the employer under the exclusivity rule. ‘It is self-evident that Labor
Code section 3601 did not establish or create a new right or cause of action in
the employee but severely limited a preexisting right to freely sue a fellow
employee for damages.’ ” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1002 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations and
footnotes omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 67, 68
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-F,
Intentional Interference with Contract or Prospective Economic Advantage, ¶ 5:624
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(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSHA) Actions Relating to Occupational Safety and Health, ¶¶ 13:951, 13:962
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:546, 15:568–15:569, 15:632 (The
Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
2813–2899. Reserved for Future Use
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VF-2800. Employer’s Willful Physical Assault (Lab. Code,
§ 3602(b)(1))
We answer the questions submitted to us as follows:
1. Did [name of defendant] touch [name of plaintiff] in a harmful or
offensive manner?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] intend to harm [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
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[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2801, Employer’s Willful Physical
Assault—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that defendant engaged in conduct other than that which is
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2801.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2801. Fraudulent Concealment of Injury (Lab. Code,
§ 3602(b)(2))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] injured on the job?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know [name of plaintiff/decedent] had
suffered a job-related injury?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] conceal this knowledge from [name of
plaintiff/decedent]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff/decedent]’s injury made worse as a result of
this concealment?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s total damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
5. Answer question 6.
6. What are the damages that [name of plaintiff/decedent] would have
sustained if [name of defendant] had not concealed the injury?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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6. Answer question 7.
7. Subtract the total amount in question 6 from the total amount in
question 5. This is the amount [name of plaintiff] is entitled to
recover. $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2802, Fraudulent Concealment of
Injury—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
questions 5 and 6, and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2802. Employer’s Defective Product (Lab. Code, § 3602(b)(3))
We answer the questions submitted to us as follows:
1. Was the [product] manufactured by [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the [product] [sold/leased/transferred for valuable
consideration] to an independent third person?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the third person then provide the [product] for [name of
plaintiff]’s use?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the [product] defective in design or manufacture?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was the [product] a substantial factor in causing harm to [name of
plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
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[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2803, Employer’s Defective
Product—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2803. Removal or Noninstallation of Power Press Guards (Lab.
Code, § 4558)
We answer the questions submitted to us as follows:
1. Was [name of defendant] [name of plaintiff]’s
[employer/supervisor]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] injured while operating a power press?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] give an affirmative instruction to [remove/
not install] the guards before [name of plaintiff]’s injury?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. When [name of defendant] did so, did [he/she/nonbinary pronoun/it]
actually know that the lack of guards would create a probability
of serious injury or death?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did the power press’s [designer/fabricator/assembler] [design the
press with guards/install guards on the press/require guards be
attached/specify that guards be attached] and directly or
indirectly convey this information to [name of defendant]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Was [name of defendant]’s [removal/failure to install] the guards a
substantial factor in causing harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2011,
December 2016
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Directions for Use
This verdict form is based on CACI No. 2804, Removal or Noninstallation of Power
Press Guards—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2804. Co-Employee’s Willful and Unprovoked Physical Act of
Aggression (Lab. Code, § 3601(a)(1))
We answer the questions submitted to us as follows:
1. Did [name of defendant] touch [name of plaintiff] in a harmful or
offensive manner?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s conduct unprovoked?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] intend to harm [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2811, Co-Employee’s Willful and
Unprovoked Physical Act of Aggression—Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant engaged in conduct other than that
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2811.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2805. Injury Caused by Co-Employee’s Intoxication (Lab.
Code, § 3601(a)(2))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] harmed?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant] intoxicated?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s intoxication a substantial factor in
causing [name of plaintiff]’s harm?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2812, Injury Caused by Co-Employee’s
Intoxication—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2806–VF-2899. Reserved for Future Use
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FEDERAL EMPLOYERS’ LIABILITY ACT
2900. FELA—Essential Factual Elements
2901. Negligence—Duty of Railroad
2902. Negligence—Assignment of Employees
2903. Causation—Negligence
2904. Comparative Fault
2905. Compliance With Employer’s Requests or Directions
2906–2919. Reserved for Future Use
2920. Federal Safety Appliance Act or Boiler Inspection Act—Essential Factual
Elements
2921. Causation Under FSAA or BIA
2922. Statute of Limitations—Special Verdict Form or Interrogatory
2923. Borrowed Servant/Dual Employee
2924. Status as Defendant’s Employee—Subservant Company
2925. Status of Defendant as Common Carrier
2926. Scope of Employment
2927–2939. Reserved for Future Use
2940. Income Tax Effects of Award
2941. Introduction to Damages for Personal Injury
2942. Damages for Death of Employee
2943–2999. Reserved for Future Use
VF-2900. FELA—Negligence—Plaintiff’s Negligence at Issue
VF-2901. Federal Safety Appliance Act or Boiler Inspection Act
VF-2902–VF-2999. Reserved for Future Use
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2900. FELA—Essential Factual Elements
[Name of plaintiff] claims that while [he/she/nonbinary pronoun/[name of
decedent]] was employed by [name of defendant], [[he/she/nonbinary
pronoun] was harmed by/[his/her/nonbinary pronoun] death was caused
by] [name of defendant]’s negligence. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff/decedent] was employed by [name of
defendant];
2. That [name of defendant] was a common carrier by railroad;
3. That [name of defendant] was engaged in interstate commerce;
4. That [name of plaintiff/decedent]’s job duties furthered, or in any
way substantially affected, interstate commerce;
5. That [name of plaintiff/decedent] was acting within the scope of
[his/her/nonbinary pronoun] employment at the time of the
incident;
6. That [name of defendant] was negligent;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s negligence was a cause of [name of
plaintiff/decedent]’s [harm/death].
[“Interstate commerce” is commercial activity that crosses more than
one country or state, such as the movement of goods from one state to
another.]
New September 2003; Revised June 2011, December 2011
Directions for Use
If the plaintiff is bringing a negligence claim under the Federal Employers’ Liability
Act (FELA) and a claim under the Federal Safety Appliance Act (SAA) or the
Boiler Inspection Act (BIA), the court may wish to add an introductory instruction
that would alert the jury to the difference between the two claims.
Sources and Authority
• Federal Employers’ Liability Act. Title 45 United States Code section 51.
• “While injured employees in California generally are entitled to workers’
compensation benefits regardless of whether the employer was at fault, those
benefits are not available to railroad employees who suffer on-the-job injuries.
Instead, their right of recovery is governed by FELA, which permits recovery
only if the employer acted negligently.” (Fair v. BNSF Railway Co. (2015) 238
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Cal.App.4th 269, 275 [189 Cal.Rptr.3d 150], original italics, internal citations
omitted.)
• The FELA is “liberally construed” to further Congress’s remedial goal of
protecting railroad workers. (Consolidated Rail Corp. v. Gottshall (1994) 512
U.S. 532, 543 [114 S.Ct. 2396, 129 L.Ed.2d 427].)
• “The elements of a FELA case are: (1) the injury occurred while the plaintiff
was working within the scope of his or her employment with the railroad; (2)
the employment was in furtherance of the railroad’s interstate transportation
business; (3) the employer railroad was negligent; and (4) the employer’s
negligence played some part in causing the injury for which compensation is
sought under the Act.” (Monarch v. Southern Pacific Transportation Co. (1999)
70 Cal.App.4th 1197, 1210, fn. 10 [83 Cal.Rptr.2d 247], internal citations
omitted.)
• “That FELA is to be liberally construed . . . does not mean that it is a workers’
compensation statute. We have insisted that FELA ‘does not make the employer
the insurer of the safety of his employees while they are on duty. The basis of
his liability is his negligence, not the fact that injuries occur.’ ” (Consolidated
Rail Corp., supra, 512 U.S. at p. 543, internal citations omitted.)
• “We note that under the Federal Employers’ Liability Act of 1908 an injured
railroad employee may bring a cause of action without proof of negligence based
on failure of the SAA-mandated safety appliances to function. When such strict
liability does not apply, i.e., the injury does not result from defective equipment
covered by the SAA, the employee must establish common law negligence.”
(Carrillo v. ACF Industries, Inc. (1999) 20 Cal.4th 1158, 1170, fn. 4 [86
Cal.Rptr.2d 832, 980 P.2d 386], internal citations omitted.)
• “The standard under FELA is a relaxed one; to prove that a railroad breached its
duty, a ‘plaintiff must show circumstances which a reasonable person would
foresee as creating a potential for harm [and] then show that this breach played
any part, even the slightest, in producing the injury.’ ‘It is well established that
the quantum of evidence required to establish liability in an FELA case is much
less than in an ordinary negligence action.’ If the negligence of the employer
‘played any part, however small, in the injury,’ the employer is liable.” (Fair,
supra, 238 Cal.App.4th at pp. 275–276, internal citation omitted.)
• “The test for coverage under the amendment is not whether the employee is
engaged in transportation, but rather whether what he does in any way furthers
or substantially affects transportation.” (Reed v. Pennsylvania Railroad Co.
(1956) 351 U.S. 502, 505 [76 S.Ct. 958, 100 L.Ed. 1366].)
• “Where more than one inference can be drawn from the evidence, the question
whether an employee was, at the time of receiving the injury sued for, engaged
in interstate commerce, is for the jury.” (Sullivan v. Matt (1955) 130 Cal.App.2d
134, 139 [278 P.2d 499], internal citations omitted.)
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Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶¶ 15:485–15:488, 15:495 (The Rutter
Group)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
1 Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California,
Ch. 3, Removing a State Court Case to Federal Court, 3.14
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2901. Negligence—Duty of Railroad
A railroad must use reasonable care under the circumstances to provide
its employees with a reasonably safe place to work and with reasonably
safe and suitable tools, machinery, and appliances. The reasonableness of
care depends on the danger associated with the workplace or the
equipment. The failure to use reasonable care is negligence. A railroad is
not negligent if, using reasonable care, it could not reasonably have
foreseen that the particular condition could cause injury.
[Name of defendant] is responsible for the negligence of any of its officers,
agents, or employees.
New September 2003
Directions for Use
For a definition of the term “negligence,” see CACI No. 401, Basic Standard of
Care.
Sources and Authority
• “The plaintiff must make out a prima facie case of negligence on the part of the
employer, including the element of reasonable foreseeability. . . . ‘To recover,
the plaintiff must prove that the railroad, with the exercise of due care, could
have reasonably foreseen that a particular condition could cause injury. The
defendant’s duty is measured by what a reasonably prudent person should or
could have reasonably anticipated as occurring under like circumstances.’ ”
(Albert v. Southern Pacific Transportation Co. (1994) 30 Cal.App.4th 529, 534
[35 Cal.Rptr.2d 777], internal citations omitted.)
• “Absent foreseeability, negligence is not established under FELA and without a
showing of negligence, recovery is not permitted.” (Albert, supra, 30
Cal.App.4th at p. 536, internal citation omitted.) But note that foreseeability is
not required for claims arising from the Federal Safety Appliance Act (49 U.S.C.
§ 20301 et seq.), or the Boiler Inspection Act (49 U.S.C. § 20701).
• “Although a railroad’s duty to use reasonable care in furnishing employees a
safe place to work is not stated explicitly in the statute, it has become an integral
part of the FELA. Under the FELA, that duty becomes ‘more imperative’ as the
risk to an employee increases. The duty is a ‘continuing one’ and requires a jury
to weigh a myriad of factors—including the nature of a task, its hazards and
efforts—in determining whether an employer furnished an employee with a
reasonably safe place to work. This continuous duty to provide a safe place to
work is broader than the general duty to use reasonable care. Other courts in
FELA actions have held that failure to instruct a jury regarding an employer’s
duty to provide a reasonably safe place to work is reversible error. We agree that
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when the issue is properly raised and an instruction is requested, the FELA
requires jury instructions on the duty to provide a reasonably safe place to
work.” (Ragsdell v. Southern Pacific Transportation Co. (9th Cir. 1982) 688 F.2d
1281, 1283, internal citations omitted.)
• “The test of negligence in supplying the employee a safe place to work is
‘whether reasonable men, examining the circumstances and the likelihood of
injury, would have taken those steps necessary to remove the danger.’ ”
(Mortensen v. Southern Pacific Co. (1966) 245 Cal.App.2d 241, 244 [53
Cal.Rptr. 851], internal citations omitted.)
• The duty to use reasonable care “is a duty which becomes ‘more imperative’ as
the risk increases. ‘Reasonable care becomes then a demand of higher
supremacy, and yet, in all cases it is a question of the reasonableness of the
care—reasonableness depending upon the danger attending the place or the
machinery.’ ” (Bailey v. Central Vermont Ry., Inc. (1943) 319 U.S. 350, 353 [63
S.Ct. 1062, 87 L.Ed. 1444], internal citation omitted.)
• “The employer is not the insurer of the safety of its employees and the test of
the employer’s liability to an injured employee is whether ordinary care was
used by the employer in regard to the risk.” (Baez v. Southern Pacific Co. (1962)
210 Cal.App.2d 714, 717 [26 Cal.Rptr. 899], internal citation omitted.)
• The U.S. Supreme Court has held that an independent contractor is an “agent”
for purposes of establishing an employer’s liability under the FELA if the
contractor performs “operational activities” of the employer. (Sinkler v. Missouri
Pacific Railroad Co. (1958) 356 U.S. 326, 331–332 [78 S.Ct. 758, 2 L.Ed.2d
799].)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
148
Copyright Judicial Council of California
2902. Negligence—Assignment of Employees
[Name of defendant] was negligent if
[it assigned [name of plaintiff/decedent] to a task that it knew or
should have known [he/she/nonbinary pronoun] was not medically fit
to perform.]
[it failed to assign a sufficient number of employees to safely
perform the task that [name of plaintiff/decedent] was assigned to at
the time of the incident.]
New September 2003
Directions for Use
Read only the alternative that applies to the facts of the case.
Sources and Authority
• “The court correctly instructed the jury as to defendant’s liability for assigning
an employee to a job for which he is medically unfit. In this regard the jury was
told that ‘Under the Federal Employers’ Liability Act, the word “injury” may
include sickness, and it is negligence for a railroad company to assign a sick
employee, of whose illness it knew or should have known, to tasks for which he
is, by reason of his condition, unfitted, and the employee may recover damages
from the railroad if such assignment plays any part in proximately worsening or
aggravating such condition.’ ” (Waller v. Southern Pacific Co. (1967) 66 Cal.2d
201, 214 [57 Cal.Rptr. 353, 424 P.2d 937].)
• It is not necessary to include as an element that the defendant must have
“forced” the plaintiff to perform the injurious task. (Waller, supra, 66 Cal.2d at
p. 214.)
• “The employer is under the nondelegable obligation of providing sufficient help
for the particular task.” (Southern Ry. Co. v. Welch (6th Cir. 1957) 247 F.2d 340,
341, internal citation omitted.)
• “As a corollary to this duty to maintain safe working conditions, the carrier is
required to provide its employee with sufficient help in the performance of the
work assigned to him. Where the failure to provide sufficient help proximately
causes injury to the employee, the carrier is liable for negligence under the
provisions of the FELA.” (Yawn v. Southern Ry. Co. (5th Cir. 1979) 591 F.2d
312, 315, internal citations omitted.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
149
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2903. Causation—Negligence
[Name of defendant]’s negligence, if any, was a cause of [[name of
plaintiff]’s harm/[name of decedent]’s death] if it played any part, no
matter how small, in bringing about the [harm/death], even if other
factors also contributed to the [harm/death].
New September 2003
Directions for Use
For an instruction on concurrent cause, see CACI No. 431, Causation: Multiple
Causes.
Sources and Authority
• Federal Employers’ Liability Act. Title 45 United States Code section 51.
• “Under this statute the test of a jury case is simply whether the proofs justify
with reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought.”
(Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500, 506 [77 S.Ct.
443, 1 L.Ed.2d 493].)
• “In sum, the understanding of Rogers we here affirm ‘has been accepted as
settled law for several decades.’ ‘Congress has had [more than 50] years in
which it could have corrected our decision in [Rogers] if it disagreed with it, and
has not chosen to do so.’ Countless judges have instructed countless juries in
language drawn from Rogers. To discard or restrict the Rogers instruction now
would ill serve the goals of ‘stability’ and ‘predictability’ that the doctrine of
statutory stare decisis aims to ensure.” (CSX Transp., Inc. v. McBride (2011) 564
U.S. 685, 699 [131 S.Ct. 2630, 180 L.Ed.2d 637], internal citations omitted.)
• “The standard under FELA is a relaxed one; to prove that a railroad breached its
duty, a ‘plaintiff must show circumstances which a reasonable person would
foresee as creating a potential for harm [and] then show that this breach played
any part, even the slightest, in producing the injury.’ ‘It is well established that
the quantum of evidence required to establish liability in an FELA case is much
less than in an ordinary negligence action.’ If the negligence of the employer
‘played any part, however small, in the injury,’ the employer is liable.” (Fair v.
BNSF Railway Co. (2015) 238 Cal.App.4th 269, 275–276 [189 Cal.Rptr.3d 150],
internal citation omitted.)
• “The common law concept of proximate cause . . . has not been adopted as the
causation test in F.E.L.A. cases. Causation in an F.E.L.A. case exists even if
there is a plurality of causes, including the negligence of the defendant or of a
third person. The negligence of the employer need not be the sole cause or even
a substantial cause of the ensuing injury.” (Parker v. Atchison, Topeka and Santa
150
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Fe Ry. Co. (1968) 263 Cal.App.2d 675, 678 [70 Cal.Rptr. 8].)
• “Although the burden upon the plaintiff in proving causation in an F.E.L.A. case
can be weighed neither in pounds nor ounces, it is a substantially lighter burden
that that imposed upon him by [the common-law jury instruction].” (Parker,
supra, 263 Cal.App.2d at p. 678.)
• “[T]he same standard of causation applies to railroad negligence under Section 1
as to plaintiff contributory negligence under Section 3.” (Norfolk Southern Ry. v.
Sorrell (2007) 549 U.S. 158, 171 [127 S.Ct. 799, 166 L.Ed.2d 638].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§ 129
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
151
Copyright Judicial Council of California
2904. Comparative Fault
[Name of defendant] claims that [name of plaintiff/decedent] was negligent
and that [his/her/nonbinary pronoun] negligence contributed to [his/her/
nonbinary pronoun] own [harm/death]. To succeed, [name of defendant]
must prove both of the following:
1. That [name of plaintiff/decedent] was negligent; and
2. That [name of plaintiff/decedent]’s negligence was a cause of [his/
her/nonbinary pronoun] [harm/death].
[Name of plaintiff/decedent]’s negligence, if any, was a cause of [his/her/
nonbinary pronoun] own [harm/death] if it played any part, no matter
how small, in bringing about [his/her/nonbinary pronoun] [harm/death],
even if other factors also contributed to [his/her/nonbinary pronoun]
[harm/death].
If you decide that [name of defendant] was negligent but also decide that
[name of plaintiff/decedent]’s negligence contributed to the harm, then you
must determine the percentage of negligence that you attribute to [name
of plaintiff/decedent].
New September 2003; Revised December 2009
Directions for Use
This instruction does not apply if the claim is based on a violation of the Federal
Safety Appliance Act or the Boiler Inspection Act.
For a definition of the term “negligence,” see CACI No. 401, Basic Standard of
Care.
Sources and Authority
• Contributory Negligence Under the FELA. Title 45 United States Code section
53.
• “The FELA provides that defense of contributory negligence is not available to
an employer to defeat an employee’s claim for injury, but only to diminish the
amount of damages in proportion to the amount of negligence attributable to the
employee. The burden of proving contributory negligence is on the defendant.”
(Torres v. Southern Pacific Co. (1968) 260 Cal.App.2d 757, 763 [67 Cal.Rptr.
428], internal citations omitted.)
• “Neither assumption of the risk nor the contributory negligence of the employee
bars recovery, if the injury was at least in part the result of the employer’s
negligence.” (Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 276 [189
Cal.Rptr.3d 150].)
• “[T]he same standard of causation applies to railroad negligence under Section 1
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as to plaintiff contributory negligence under Section 3.” (Norfolk Southern Ry. v.
Sorrell (2007) 549 U.S. 158, 171 [127 S.Ct. 799, 166 L.Ed.2d 638].)
• “Under this statute the test of a jury case is simply whether the proofs justify
with reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought.”
(Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500, 506 [77 S.Ct.
443, 1 L.Ed.2d 493].)
• “In sum, the understanding of Rogers we here affirm ‘has been accepted as
settled law for several decades.’ ‘Congress has had [more than 50] years in
which it could have corrected our decision in [Rogers] if it disagreed with it, and
has not chosen to do so.’ Countless judges have instructed countless juries in
language drawn from Rogers. To discard or restrict the Rogers instruction now
would ill serve the goals of ‘stability’ and ‘predictability’ that the doctrine of
statutory stare decisis aims to ensure.” (CSX Transp., Inc. v. McBride (2011) 564
U.S. 685, 699 [131 S.Ct. 2630, 180 L.Ed.2d 637], internal citations omitted.)
• “The common law concept of proximate cause . . . has not been adopted as the
causation test in F.E.L.A. cases. Causation in an F.E.L.A. case exists even if
there is a plurality of causes, including the negligence of the defendant or of a
third person. The negligence of the employer need not be the sole cause or even
a substantial cause of the ensuing injury.” (Parker v. Atchison, Topeka and Santa
Fe Ry. Co. (1968) 263 Cal.App.2d 675, 678 [70 Cal.Rptr. 8].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§ 131
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.42
(Matthew Bender)
153
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2905. Compliance With Employer’s Requests or Directions
[Name of plaintiff/decedent] was not negligent simply because
[he/she/nonbinary pronoun], at the request or direction of [name of
defendant], worked at a dangerous job, or in a dangerous place, or under
dangerous conditions.
New September 2003
Sources and Authority
• “In Joyce v. Atlantic Richfield Co., 651 F.2d 676, 683 (10th Cir. 1981), this court
held that when the evidence could support either contributory negligence or
assumption of the risk, instructions which only define contributory negligence
are not sufficient to prevent the jury from applying assumption of the risk. The
court held the jury instructions should also include the following admonition:
‘You may not find contributory negligence on the part of the plaintiff, however,
simply because he acceded to the request or direction of the responsible
representatives of his employer that he work at a dangerous job, or in a
dangerous place, or under unsafe conditions.’ The same instruction has been held
sufficient by other circuits.” (Sauer v. Burlington Northern Railroad Co. (10th
Cir. 1996) 106 F.3d 1490, 1493, internal citation omitted.)
• “[I]f no evidence of impermissible assumption of risk has reached the jury, a
correct instruction on contributory negligence will do. However, if, either
because of evidence introduced at trial or because of statements made by counsel
in opening or closing arguments, there is a risk that the implied consent theory
of assumption of the risk seeped its way into the case, the jury should be
instructed that it ‘may not find contributory negligence on the part of the
plaintiff . . . simply because he acceded to the request or direction of the
responsible representatives of his employer that he work at a dangerous job, or
in a dangerous place, or under unsafe conditions.’ ” (Fashauer v. New Jersey
Transit Rail Operations, Inc. (3d Cir. 1995) 57 F.3d 1269, 1280.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
2906–2919. Reserved for Future Use
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2920. Federal Safety Appliance Act or Boiler Inspection
Act—Essential Factual Elements
[Name of plaintiff] [also] claims that while [he/she/nonbinary
pronoun/[name of decedent]] was employed by [name of defendant], [[he/
she/nonbinary pronoun] was harmed by/[his/her/nonbinary pronoun] death
was caused by] [name of defendant]’s [describe violation of Federal Safety
Appliance Act/Boiler Inspection Act]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff/decedent] was employed by [name of
defendant];
2. That [name of defendant] was a common carrier by railroad;
3. That [name of plaintiff/decedent] was acting within the scope of
[his/her/nonbinary pronoun] employment at the time of the
incident;
4. That [name of defendant] was engaged in interstate commerce;
5. That [name of plaintiff/decedent]’s job duties furthered, or in any
way substantially affected, interstate commerce;
6. That [name of defendant] [describe violation of Federal Safety
Appliance Act/Boiler Inspection Act];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a cause of [[name of
plaintiff]’s harm/[name of decedent]’s death].
[Interstate commerce is commercial activity that crosses more than one
country or state, such as the movement of goods from one state to
another.]
[Name of defendant] is responsible for harm caused by [describe conduct
that violated the FSA/BIA] even if it was not negligent. If you find that
[name of defendant] is responsible for [name of plaintiff/decedent]’s [harm/
death], [name of plaintiff]’s recovery, if any, must not be reduced because
of [name of plaintiff/decedent]’s own conduct.
New September 2003; Revised December 2009, June 2011
Directions for Use
The statutory violation should be paraphrased in this instruction where indicated.
Separate instructions may need to be drafted detailing the statutory requirements of
the specific violation as alleged and any applicable defenses. (See 49 U.S.C.
§§ 20301 et seq., 20501 et seq., and 20701.)
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CACI No. 2920 FELA
If the plaintiff is bringing a negligence claim under the Federal Employers’ Liability
Act (FELA) and a claim under the Federal Safety Appliance Act (SAA) or the
Boiler Inspection Act (BIA), the court may wish to add an introductory instruction
that would alert the jury to the difference between the two claims.
Do not give a comparative fault instruction if the case is brought under this theory.
Sources and Authority
• Federal Employers’ Liability Act. Title 45 United States Code section 51.
• Contributory Negligence Under the FELA. Title 45 United States Code section
53.
• Assumption of Risk Under the FELA. Title 45 United States Code section 54.
• FELA Regulations Deemed to Be Statutes. Title 45 United States Code section
54a.
• Railroad Safety Requirements. Title 49 United States Code section 20302(a).
• Installation of Railroad Signal System. Title 49 United States Code section
20502(b).
• Use of Locomotive or Tender. Title 49 United States Code section 20701.
• “We note that under the Federal Employers’ Liability Act of 1908 an injured
railroad employee may bring a cause of action without proof of negligence based
on failure of the SAA-mandated safety appliances to function. When such strict
liability does not apply, i.e., the injury does not result from defective equipment
covered by the SAA, the employee must establish common law negligence. The
Supreme Court has also recognized that the SAA imposes a duty on railroads
extending to nonemployee travelers at railway/highway crossings, who must
bring a common law tort action in state court (absent diversity) and must prove
negligence.” (Carrillo v. ACF Industries, Inc. (1999) 20 Cal.4th 1158, 1170, fn.
4 [86 Cal.Rptr.2d 832, 980 P.2d 386], internal citations omitted.)
• “[An] FSAA violation is per se negligence in a FELA suit. In other words, the
injured employee has to show only that the railroad violated the FSAA, and the
railroad is strictly liable for any injury resulting from the violation.” (Phillips v.
CSX Transportation Co. (4th Cir. 1999) 190 F.3d 285, 288, original italics.)
• “ ‘The BIA and the SAA are regarded as amendments to the FELA. The BIA
supplements the FELA to provide additional public protection and facilitate
employee recovery. . . . [T]he BIA imposes on the carrier an absolute duty to
maintain the locomotive, and all its parts and appurtenances, in proper condition,
and safe to operate without unnecessary peril to life or limb.’ ” (Fontaine v.
National Railroad Passenger Corp. (1997) 54 Cal.App.4th 1519, 1525 [63
Cal.Rptr.2d 644], internal citation omitted.)
• “[N]either contributory negligence nor assumption of the risk is a defense to a
BIA violation which has contributed to the cause of an injury.” (Fontaine, supra,
54 Cal.App.4th at p. 1525.)
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• “Where an inefficient brake causes an injury the carrier in interstate commerce
under the Safety Appliance Act cannot escape liability, and proof of negligence
on the part of the railroad is unnecessary.” (Leet v. Union Pacific Railroad Co.
(1943) 60 Cal.App.2d 814, 817 [142 P.2d 37].)
• “Proof of a BIA violation is enough to establish negligence as a matter of law,
and neither contributory negligence nor assumption of risk can be raised as a
defense.” (Law v. General Motors Corp. (9th Cir. 1997) 114 F.3d 908, 912,
internal citations omitted.)
• “The purpose in enacting the BIA was to protect train service employees and the
traveling public from defective locomotive boilers and equipment. ‘[I]t has been
held consistently that the [BIA] supplements the [FELA] by imposing on
interstate railroads “an absolute and continuing duty” to provide safe equipment.’
In addition to the civil penalty, a person harmed by violation of the BIA is given
recourse to sue under FELA, which applies only to railroad employees injured
while engaged in interstate commerce. FELA provides the exclusive remedy for
recovery of damages against a railroad by its employees. FELA liability is
expressly limited to common carriers.” (Viad Corp. v. Superior Court (1997) 55
Cal.App.4th 330, 335 [64 Cal.Rptr.2d 136], internal citations omitted,
disapproved on other grounds in Scheiding v. General Motors Corp. (2000) 22
Cal.4th 471, 484, fn. 6 [93 Cal.Rptr.2d 342, 993 P.2d 996].)
• “The test for coverage under the amendment is not whether the employee is
engaged in transportation, but rather whether what he does in any way furthers
or substantially affects transportation.” (Reed v. Pennsylvania Railroad Co.
(1956) 351 U.S. 502, 505 [76 S.Ct. 958, 100 L.Ed. 1366].)
• “Where more than one inference can be drawn from the evidence, the question
whether an employee was, at the time of receiving the injury sued for, engaged
in interstate commerce, is for the jury.” (Sullivan v. Matt (1955) 130 Cal.App.2d
134, 139 [278 P.2d 499], internal citations omitted.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.45
(Matthew Bender)
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2921. Causation Under FSAA or BIA
If you decide that [name of defendant] [describe violation of the Federal
Safety Appliance Act/Boiler Inspection Act], then this is a cause of harm if
it played any part, no matter how small, in bringing about the [harm/
death], even if other factors also contributed to the [harm/death].
New September 2003
Sources and Authority
• “Actions alleging a violation of the BIA are brought under the FELA. The
standard of causation required in a BIA case is the same as the standard of
causation required in a FELA negligence case.” (Summers v. Missouri Pacific
Railroad System (10th Cir. 1997) 132 F.3d 599, 606, internal citations omitted.)
• “Proximate cause, as traditionally understood, is not required to establish
causation under either the FELA or the BIA. ‘Under the FELA [but not the
BIA], an employee is entitled to recover damages if the employer’s negligence
played any part in producing the injury, no matter how slight.’ ” (Fontaine v.
National Railroad Passenger Corp. (1997) 54 Cal.App.4th 1519, 1525 [63
Cal.Rptr.2d 644], internal citations omitted.)
• Liability under the BIA is established if defendant’s violation of the BIA “played
any part, no matter how small, in bringing about or actually causing, the injury”
to the plaintiff . . . “without any requirement of a showing of negligence on the
part of the defendant.” (Oglesby v. Southern Pacific Transportation Co. (9th Cir.
1993) 6 F.3d 603, 606–609.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.45
(Matthew Bender)
158
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2922. Statute of Limitations—Special Verdict Form or
Interrogatory
[Name of plaintiff] must prove that [he/she/nonbinary pronoun] did not
know, and could not reasonably have known, before [date three years
before action was commenced],
1. That [he/she/nonbinary pronoun] had been harmed; and
2. That the harm was potentially caused by [his/her/nonbinary
pronoun] work with [name of defendant].
You will be asked a question about this on a special [verdict
form/interrogatory].
New September 2003
Sources and Authority
• FELA: Statute of Limitations. 45 U.S.C. section 56.
• “Compliance with the three-year statute of limitations is a condition precedent
for recovery in a FELA action. In cases of latent or progressive injuries . . . the
‘discovery rule’ directs that the cause of action does not commence to run until
the plaintiff knew or should have known of the injury and its cause.” (Monarch
v. Southern Pacific Transportation Co. (1999) 70 Cal.App.4th 1197, 1203 [83
Cal.Rptr.2d 247], internal citations omitted.)
• “The burden is therefore on the claimant to allege and to prove that his cause of
action was commenced within the three-year period.” (Emmons v. Southern
Pacific Transportation Co. (5th Cir. 1983) 701 F.2d 1112, 1118, internal citations
omitted.)
• “Under the discovery rule, the test is an objective inquiry into whether the
plaintiff knew or should have known, in the exercise of reasonable diligence, the
essential facts of injury and cause. Constructive rather than actual knowledge of
the fact of causation triggers a duty to investigate the possible causes of injury.
Thus, in accordance with the objective test, ‘definite knowledge’ that the injury
is work related is not necessary in order for the cause of action to accrue. Once
the plaintiff believes or suspects that the ‘potential cause of his injury’ is work
related, an affirmative duty to investigate is imposed.” (Monarch, supra, 70
Cal.App.4th at p. 1203.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.41
(Matthew Bender)
159
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2923. Borrowed Servant/Dual Employee
[[Name of plaintiff] claims [he/she/nonbinary pronoun/[name of decedent]]
was [name of defendant]’s employee at the time of the incident even
though [he/she/nonbinary pronoun] was primarily employed by [name of
primary employer].]
[or]
[[Name of plaintiff] claims [he/she/nonbinary pronoun/[name of decedent]]
was employed by both [name of defendant] and [name of primary
employer] at the time of the incident.]
In deciding whether [name of plaintiff/decedent] was [name of defendant]’s
employee, the most important factor is whether [name of defendant] had
the right to control the work of [name of plaintiff/decedent], rather than
just the right to specify the result. It does not matter whether [name of
defendant] exercised the right to control. Sharing information or
coordinating efforts between employees of two companies, by itself, is not
enough to establish the right to control.
In addition to the right of control, you must also consider all the
circumstances in deciding whether [name of plaintiff/decedent] was [name
of defendant]’s employee. The following factors, if true, may show that
[name of plaintiff/decedent] was the employee of [name of defendant]:
(a) [Name of defendant] supplied the equipment, tools, and place of
work;
(b) [Name of plaintiff/decedent] was paid by the hour rather than by
the job;
(c) The work being done by [name of plaintiff/decedent] was part of
the regular business of [name of defendant];
(d) [Name of defendant] had the right to end its relationship with
[name of plaintiff/decedent];
(e) The work being done by [name of plaintiff/decedent] was [his/her/
nonbinary pronoun] only occupation or business;
(f) The kind of work performed by [name of plaintiff/decedent] is
usually done under the direction of a supervisor rather than by a
specialist working without supervision;
(g) The kind of work performed by [name of plaintiff/decedent] does
not require specialized or professional skill;
(h) The services performed by [name of plaintiff/decedent] were to be
performed over a long period of time;
(i) [Name of defendant] and [name of plaintiff/decedent] acted as if they
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had an employer-employee relationship;
(j) [Name of plaintiff/decedent]’s duties to [name of defendant] were
only for its benefit;
(k) [Name of plaintiff/decedent] consented to the employment with
[name of defendant].
New September 2003; Revised June 2013
Directions for Use
Read the first bracketed paragraph for cases raising the borrowed-servant theory.
Read the second bracketed paragraph for cases involving dual employment.
Secondary factors (a)–(k) come from the Restatement Second of Agency, section
220.
Sources and Authority
• “Under common-law principles, there are basically three methods by which a
plaintiff can establish his ‘employment’ with a rail carrier for FELA purposes
even while he is nominally employed by another. First, the employee could be
serving as the borrowed servant of the railroad at the time of his injury. Second,
he could be deemed to be acting for two masters simultaneously. Finally, he
could be a subservant of a company that was in turn a servant of the railroad.”
(Kelley v. Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42
L.Ed.2d 498], internal citations omitted.)
• “When the nominal employer furnishes a third party with ‘ “men to do the work
and places them under his exclusive control in the performance of it, [then]
those men become pro hac vice the servants of him to whom they are
furnished,” ’ under the loaned servant doctrine.” (Collins v. Union Pacific
Railroad Co. (2012) 207 Cal.App.4th 867, 879 [143 Cal.Rptr.3d 849], original
italics.)
• “An employee may at the same time be under a general and a special employer,
and where, either by the terms of a contract or during the course of its
performance, the employee of an independent contractor comes under the control
and direction of the other party to the contract, a dual employment relation is
held to exist.” (Collins, supra, 207 Cal.App.4th at p. 877.)
• “[A] finding of agency is not tantamount to a finding of a master-servant
relationship.” (Kelley, supra, 419 U.S. at p. 325.)
• “In this case . . . the evidence of contacts between Southern Pacific employees
and PMT employees may indicate, not direction or control, but rather the
passing of information and the accommodation that is obviously required in a
large and necessarily coordinated operation. The informal contacts between the
two groups must assume a supervisory character before the PMT employees can
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be deemed pro hac vice employees of the railroad.” (Kelley, supra, 419 U.S. at
p. 330.)
• “The determination of whether a worker is a borrowed servant is accomplished
by ascertaining who has the power to control and direct the servants in the
performance of their work, distinguishing between authoritative direction and
control, and mere suggestion as to details or the necessary cooperation, where
the work furnished is part of a larger undertaking. There is thus a distinction
between ‘authoritative direction and control’ by a railroad, and the ‘minimum
cooperation necessary to carry out a coordinated undertaking’ which does not
amount to control or supervision. The control need not be exercised; it is
sufficient if the right to direct the details of the work is present. (Collins, supra,
207 Cal.App.4th at p. 879.)
• “The special employment relationship and its consequent imposition of liability
upon the special employer flows from the borrower’s power to supervise the
details of the employee’s work. Mere instruction by the borrower on the result to
be achieved will not suffice.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486,
492 [162 Cal.Rptr. 320, 606 P.2d 355] [not a FELA case].)
• “The question of whether a special employment relationship exists is generally a
question of fact reserved for the jury.” (Collins, supra, 207 Cal.App.4th at p.
878.)
• Contract terms are not conclusive evidence of the existence of the right to
control. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 176 [151 Cal.Rptr.
671, 588 P.2d 811] [not a FELA case].)
• Restatement Second of Agency, section 220 provides:
(1) A servant is a person employed to perform services in the affairs
of another and who with respect to the physical conduct in the
performance of the services is subject to the other’s control or right
to control.
(2) In determining whether one acting for another is a servant or an
independent contractor, the following matters of fact, among others,
are considered:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
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(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of
the employer;
(i) whether or not the parties believe they are creating the
relation of master and servant; and
(j) whether the principal is or is not in business.
• “Section 220 (1) of the Restatement defines a servant as ‘a person employed to
perform services in the affairs of another and who with respect to the physical
conduct in the performance of the services is subject to the other’s control or
right to control.’ In § 220 (2), the Restatement recites various factors that are
helpful in applying that definition. While that section is directed primarily at
determining whether a particular bilateral arrangement is properly characterized
as a master-servant or independent contractor relationship, it can also be
instructive in analyzing the three-party relationship between two employers and a
worker.” (Kelley, supra, 419 U.S. at p. 324.)
• “ ‘Following common law tradition, California decisions . . . uniformly declare
that “[t]he principal test of an employment relationship is whether the person to
whom service is rendered has the right to control the manner and means of
accomplishing the result desired. . . .” [Citations.] [¶] However, the courts have
long recognized that the “control” test, applied rigidly and in isolation, is often
of little use in evaluating the infinite variety of service arrangements. While
conceding that the right to control work details is the “most important” or “most
significant” consideration, the authorities also endorse several “secondary”
indicia of the nature of a service relationship.’ Those ‘secondary indicia’ ‘have
been derived principally from the Restatement Second of Agency.’ They
generally ‘ “cannot be applied mechanically as separate tests; they are
intertwined and their weight depends often on particular combinations.” ’ ”
(Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 301 [111 Cal.Rptr.3d 787] [not a
FELA case], internal citation omitted.)
• “In 2006 the Restatement (Second) of Agency was superseded by the
Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather
than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a,
and defines an employee simply as a type of agent subject to a principal’s
control. Id., § 7.07(3)(a).” (Schmidt v. Burlington Northern & Santa Fe Ry. (9th
Cir. 2010) 605 F.3d 686, 690 fn. 3.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 179–182
2 Wilcox, California Employment Law, Ch. 30, Employers’ Tort Liability to Third
Parties for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
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Employee’s Torts, § 248.15 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.33
(Matthew Bender)
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2924. Status as Defendant’s Employee—Subservant Company
[Name of plaintiff] claims [he/she/nonbinary pronoun/[name of decedent]]
was [name of defendant]’s employee because [he/she/nonbinary pronoun]
was employed by [name of primary employer], a company that was
controlled by [name of defendant]. To succeed on this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] controlled or had the right to control the
daily operations of [name of primary employer];
2. That [name of defendant] controlled or had the right to control the
physical conduct of [name of primary employer]’s employees in the
course of the work during which [name of plaintiff/decedent] was
[injured/killed]; and
3. That [name of plaintiff/decedent] was performing services for the
benefit of [name of defendant] at the time of [injury/death].
New September 2003; Revised June 2011
Directions for Use
For factors that may apply to determine whether the employer has a right to control,
see CACI No. 2923, Borrowed Servant/Dual Employee. These factors are taken
from section 220 of the Restatement Second of Agency. The factors were not
included in the Restatement Third of Agency.
Sources and Authority
• “In the Kelley case, the Supreme Court recognized that if a second company
could be shown to be a conventional common-law servant, the ‘control or right
to control’ test would be met.” (Bradsher v. Missouri Pacific Railroad (8th Cir.
1982) 679 F.2d 1253, 1257–1258, internal citation omitted.)
• “To prove WFE was [defendant]’s servant, [plaintiff] must establish [defendant]
controlled or had the right to control the physical conduct of WFE’s employees
in the course of the work during which the injury allegedly occurred. The
subservant theory presupposes the existence of two separate entities in a master-
servant relationship. A plaintiff can proceed under this theory by showing his
employer was the common-law servant of the defendant railroad such that the
railroad controlled or had the right to control the employer’s daily operations. A
plaintiff must also show he was ‘employed to perform services in the affairs of
[the defendant railroad] and . . . with respect to the physical conduct in the
performance of the services [was] subject to [that railroad’s] control or right to
control.’ For [plaintiff] to succeed under the subservant theory, he must show
[defendant] controlled or had the right to control his physical conduct on the job.
It is not enough for him to merely show WFE was the railroad’s agent, or that
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he was acting to fulfill the railroad’s obligations; [defendant]’s generalized
oversight of [plaintiff], without physical control or the right to exercise physical
control of his daily work is insufficient.” (Schmidt v. Burlington Northern &
Santa Fe Ry. (9th Cir. 2010) 605 F.3d 686, 689–690, internal citations omitted.)
• “Where the evidence of control is in dispute, the case should go to the jury.”
(Vanskike v. ACF Industries, Inc. (8th Cir. 1981) 665 F.2d 188, 198, internal
citations omitted.)
• “In this case . . . the evidence of contacts between Southern Pacific employees
and PMT employees may indicate, not direction or control, but rather the
passing of information and the accommodation that is obviously required in a
large and necessarily coordinated operation. The informal contacts between the
two groups must assume a supervisory character before the PMT employees can
be deemed pro hac vice employees of the railroad.” (Kelley v. Southern Pacific
Co. (1974) 419 U.S. 318, 330 [95 S.Ct. 472, 42 L.Ed.2d 498].)
• Restatement Second of Agency, section 220(1), defines a servant as “a person
employed to perform services in the affairs of another and who with respect to
the physical conduct in the performance of the services is subject to the other’s
control or right to control.” Section 220(2) lists various factors that are helpful in
applying this definition:
(a) the extent of control which, by the agreement, the master may exercise
over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or
business;
(c) the kind of occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer or by a
specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;
(i) whether or not the parties believe they are creating the relation of master
and servant; and
(j) whether the principal is or is not in business.
• “While [section 220] is directed primarily at determining whether a particular
bilateral arrangement is properly characterized as a master-servant or
independent contractor relationship, it can also be instructive in analyzing the
three-party relationship between two employers and a worker.” (Kelley v.
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Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498].)
• “In 2006 the Restatement (Second) of Agency was superseded by the
Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather
than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a,
and defines an employee simply as a type of agent subject to a principal’s
control. Id., § 7.07(3)(a).” (Schmidt, supra, 605 F.3d at p. 690, fn. 3.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§ 126
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.33
(Matthew Bender)
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2925. Status of Defendant as Common Carrier
[Name of plaintiff] claims that [name of defendant] was a common carrier
by railroad. To prove this, [name of plaintiff] must show that [name of
defendant] was in the business of transporting [the property of] the
general public by rail.
New September 2003
Sources and Authority
• FELA: “Common Carrier” Defined. 45 U.S.C. section 57.
• “A common carrier has been defined generally as one who holds himself out to
the public as engaged in the business of transportation of persons or property
from place to place for compensation, offering his services to the public
generally. The distinctive characteristic of a common carrier is that he undertakes
to carry for all people indifferently, and hence is regarded in some respects as a
public servant. The dominant and controlling factor in determining the status of
one as a common carrier is his public profession as to the service offered or
performed.” (Kelly v. General Electric Co. (E.D.Pa. 1953) 110 F.Supp. 4, 6.)
• “According to these cases various considerations are of prime importance in
determining whether a particular entity is a common carrier. First—actual
performance of rail service, second—the service being performed is part of the
total rail service contracted for by a member of the public, third—the entity is
performing as part of a system of interstate rail transportation by virtue of
common ownership between itself and a railroad or by a contractual relationship
with a railroad, and hence such entity is deemed to be holding itself out to the
public, and fourth—remuneration for the services performed is received in some
manner, such as a fixed charge from a railroad or by a percent of the profits
from a railroad.” (Lone Star Steel Co. v. McGee (5th Cir. 1967) 380 F.2d 640,
647.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
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2926. Scope of Employment
[Name of plaintiff] must prove that [he/she/nonbinary pronoun/[name of
decedent]] was acting within the scope of [his/her/nonbinary pronoun]
employment at the time of the incident.
Conduct is within the scope of employment if:
(a) It is reasonably related to the kinds of tasks that the employee
was hired to perform; or
(b) It is reasonably foreseeable in light of the employer’s business or
the employee’s job responsibilities.
New September 2003
Directions for Use
See other instructions that further define the concept of scope of employment in the
Vicarious Responsibility instructions (CACI No. 3720 et seq.).
Sources and Authority
• “FELA’s limitation of a railroad’s liability to injuries occurring ‘while [the
person] is employed by’ the railroad means that it must generally be determined
whether the employee was injured while she was acting within the scope of her
employment. ‘Normally, whether an employee is acting within the scope of
employment is a question to be resolved by the jury from all the surrounding
circumstances,’ for ‘in negligence actions brought under the FELA, . . . the role
of the jury is significantly greater . . . than in common law negligence actions
. . . .’ Indeed, “ ‘trial by jury is part of the remedy.’ ” ” (Goldwater v. Metro-
North Commuter Railroad (2d Cir. 1996) 101 F.3d 296, 298, internal citations
omitted.)
• “The scope of employment under FELA is broadly construed by the federal
courts—and has been for more than 80 years. In the seminal FELA case of Erie
Railroad Company v. Winfield (1917) 244 U.S. 170 [37 S.Ct. 556, 61 L.Ed.
1057], the Supreme Court held that an employee who leaves the railroad
carrier’s yard ‘at the close of his day’s work’ is engaged in a ‘necessary incident
of his day’s work,’ and thus is ‘but discharging a duty of his employment.’ ”
(Ponce v. Northeast Illinois Regional Commuter Railroad Corp. (N.D. Ill. 2000)
103 F.Supp.2d 1051, 1056, internal citations omitted.)
• “Railroad employment has been broadly interpreted to extend not only to acts
required by the employer, but also to those acts necessarily incidental to the
employment. [¶] This circuit and others have nevertheless held that even ‘given
its most liberal interpretation, the Act cannot be extended to cover activities not
necessarily incident to or an integral part of employment in interstate commerce.
It obviously does not cover activities undertaken by an employee for a private
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purpose and having no causal relationship with his employment.’ ” (Feichko v.
Denver & Rio Grande Western Railroad Co. (10th Cir. 2000) 213 F.3d 586, 592,
internal citations omitted.)
• Restatement Second of Agency, section 229, provides:
(1) To be within the scope of the employment, conduct must be of
the same general nature as that authorized, or incidental to the
conduct authorized.
(2) In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the conduct
authorized as to be within the scope of employment, the following
matters of fact are to be considered:
(a) whether or not the act is one commonly done by such
servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is
apportioned between different servants;
(e) whether or not the act is outside the enterprise of the master
or, if within the enterprise, has not been entrusted to any
servant;
(f) whether or not the master has reason to expect that such an
act will be done;
(g) the similarity in quality of the act done to the act
authorized;
(h) whether or not the instrumentality by which the harm is
done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
• “The Restatement at § 229 sets forth intelligent factors for a factfinder to
consider in determining whether this has happened. We emphasize that no one
factor is dispositive; establishing one or more factors is not equivalent to
establishing scope of employment.” (Wilson v. Chicago, Milwaukee, St. Paul &
Pacific Railroad Co. (7th Cir. 1988) 841 F.2d 1347, 1355.)
• “[A]s a general rule, courts have held that an employee injured while commuting
to and from work is not covered by FELA.” (Ponce, supra, 103 F.Supp.2d at p.
1057.) However, FELA may apply if the injury occurs on the employer’s work
site “while the employee is attempting to report to or leave the job within a
reasonable time of his or her shift, and is exposed to risks not confronted by the
public generally.” (Ibid.)
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Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
2927–2939. Reserved for Future Use
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2940. Income Tax Effects of Award
[Name of plaintiff] will not be required to pay any federal or state income
taxes on any amount that you award.
[When calculating lost earnings, if any, you should use after-tax
earnings.]
New September 2003
Directions for Use
The Eighth Circuit Model Jury Instructions state that the bracketed sentence should
be given if there is evidence of both gross and net earnings and there is any danger
that the jury may be confused as to the proper measure of damages.
Sources and Authority
• If requested, the jury must be instructed that the verdict will not be subject to
income taxes. (Norfolk & W. Ry. Co. v. Liepelt (1980) 444 U.S. 490, 498 [100
S.Ct. 755, 62 L.Ed.2d 689].) Further, the Supreme Court in the Liepelt case
stated that the jury should base its award on the “after-tax” value of lost earnings
in determining lost earnings. (Id. at p. 493.)
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2941. Introduction to Damages for Personal Injury
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun]
damages. However, [name of plaintiff] does not have to prove the exact
amount of damages that will provide reasonable compensation for the
harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
New September 2003
Directions for Use
See the Damages series (CACI No. 3900 et seq.) for instructions on specific items
of damages and other topics involving damages, such as the concept of present cash
value, mitigation of damages, and the effect of preexisting conditions. Care should
be taken to verify that the wording of these instructions is consistent with federal
law regarding damages under the FELA.
Sources and Authority
• Federal Employers’ Liability Act. 45 U.S.C. section 51.
• “[I]t is settled that the propriety of jury instructions concerning the measure of
damages in an FELA action is an issue of ‘substance’ determined by federal
law.” (St. Louis Southwestern Railway Co. v. Dickerson (1985) 470 U.S. 409,
411 [105 S.Ct. 1347, 84 L.Ed.2d 303], internal citation omitted.)
• “A FELA plaintiff is entitled to recover for all past, present and probable future
harm attributable to the defendant’s tortious conduct, including pain and
suffering and mental anguish.” (Marchica v. Long Island Railroad Co. (2d Cir.
1994) 31 F.3d 1197, 1207.)
• “A FELA plaintiff, upon proof of employer liability, may recover damages for
loss of earnings, medical expenses and pain and suffering. The burden rests upon
the plaintiff to establish by sufficient evidence a factual basis for the amount of
damages sought.” (Williams v. Missouri Pacific Railroad Co. (10th Cir. 1993) 11
F.3d 132, 135, internal citations omitted.)
• “The Act was not intended to supersede or pre-empt the common law in railroad
employee injury cases, but merely to modify it in . . . specific particulars. Thus,
the Act contains no provisions regulating the measure of damages recoverable in
an action to which the FELA applies, and courts have since held that the absence
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in the Act of specific provisions governing the measure of damages in FELA
actions does not affect their availability as before the Act.” (Hall v. Minnesota
Transfer Railway Co. (D.Minn. 1971) 322 F.Supp. 92, 94.)
• “The seaman may thus recover for all of his pecuniary damages including such
damages as the cost of employing someone else to perform those domestic
services that he would otherwise have been able to render but is now incapable
of doing.” (Cruz v. Hendy International Co. (5th Cir. 1981) 638 F.2d 719, 723
[Jones Act case], overruled on other grounds in Miles v. Apex Marine Corp.
(1990) 498 U.S. 19, 32–33 [111 S.Ct. 317, 112 L.Ed.2d 275].)
• “Although our decision in Jones & Laughlin makes clear that no single method
for determining present value is mandated by federal law and that the method of
calculating present value should take into account inflation and other sources of
wage increases as well as the rate of interest, it is equally clear that an utter
failure to instruct the jury that present value is the proper measure of a damages
award is error.” (St. Louis Southwestern Railway, supra, 470 U.S. at p. 412.)
• “Damages for the injury of loss of earning capacity may be recovered in a
FELA action. ‘Earning capacity means the potential for earning money in the
future . . . .’ The appropriate measure is the present value of the total amount of
future earnings.” (Bissett v. Burlington Northern Railroad Co. (8th Cir. 1992)
969 F.2d 727, 731, internal citations omitted.)
• “[W]e see no reason, and defendant has presented us with no reason, to create in
FELA cases an exception to the general rule that the defendant has the burden of
proving that the plaintiff could, with reasonable effort, have mitigated his
damages.” (Jones v. Consolidated Rail Corp. (6th Cir. 1986) 800 F.2d 590, 594.)
• “The federal and state courts have held with virtual unanimity over more than
seven decades that prejudgment interest is not available under the FELA.”
(Monessen Southwestern Railway Co. v. Morgan (1988) 486 U.S. 330, 338 [108
S.Ct. 1837, 100 L.Ed.2d 349].)
• “We therefore reaffirm the conclusion . . . that punitive damages are unavailable
under the FELA.” (Wildman v. Burlington Northern Railroad Co. (9th Cir. 1987)
825 F.2d 1392, 1395, internal citation omitted.)
• “We have held specifically that the spouse of an injured railroad employee may
not sue for loss of consortium under FELA.” (Kelsaw v. Union Pacific Railroad
Co. (9th Cir. 1982) 686 F.2d 819, 820, internal citation omitted.)
• 45 U.S.C. section 55 provides: “Any contract, rule, regulation, or device
whatsoever, the purpose or intent of which shall be to enable any common
carrier to exempt itself from any liability created by this [chapter], shall to that
extent be void: Provided, That in any action brought against any such common
carrier under or by virtue of any of the provisions of this [chapter], such
common carrier may set off therein any sum it has contributed or paid to any
insurance, relief benefit, or indemnity that may have been paid to the injured
employee or the person entitled thereto on account of the injury or death for
which said action was brought.”
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• “While at first glance the language of this provision seems broad enough to
completely abrogate the common law collateral source rule, courts have limited
the scope of the provision by focusing on the requirement that the covered
payments be made ‘on account of the injury.’ Thus, the cases draw a distinction
between payments emanating from a fringe benefit such as a retirement fund or
a general hospital and medical insurance plan, and payments which the employer
has undertaken voluntarily to indemnify itself against possible liabilities under
the FELA.” (Clark v. Burlington Northern, Inc. (8th Cir. 1984) 726 F.2d 448,
450, internal citation omitted.)
• “A benefit may be exempt from setoff under the collateral source rule even
though the employer is the sole source of the fund. The important consideration
is the character of the benefits received, rather than whether the source is
actually independent of the employer. Medical expenses paid for by insurance
are exempt from setoff regardless of whether the employer paid one hundred
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he should
not be allowed to set off compensation from a ‘collateral source’ against the
amount he owes on account of his tort.” (Russo v. Matson Navigation Co. (9th
Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and that
the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.43, 485.44
(Matthew Bender)
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2942. Damages for Death of Employee
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant] for the death of [name of
decedent], you also must decide how much money will reasonably
compensate [name of plaintiff] for this loss. This compensation is called
“damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun]
damages. However, [name of plaintiff] does not have to prove the exact
amount of these damages. You must not speculate or guess in awarding
damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. The reasonable value of money, goods, and services that [name of
decedent] would have provided [name of plaintiff] during either the
life expectancy that [name of decedent] had before
[his/her/nonbinary pronoun] death or the life expectancy of [name
of plaintiff], whichever is shorter;
2. [The monetary value of [name of minor child]’s loss of any care,
attention, instruction, training, advice, and guidance from [name
of decedent];]
3. Any pain and suffering that [name of decedent] experienced as a
result of [his/her/nonbinary pronoun] injuries; and
4. The reasonable expense of medical care and supplies reasonably
needed by and actually provided to [name of decedent].
Do not include in your award any compensation for [name of plaintiff]’s
grief, sorrow, or mental anguish or the loss of [name of decedent]’s
society or companionship.
In deciding a person’s life expectancy, consider, among other factors,
that person’s health, habits, activities, lifestyle, and occupation. Life
expectancy tables are evidence of a person’s life expectancy but are not
conclusive.
Any award you make for the value of any money and services that you
decide [name of decedent] would have provided [name of plaintiff] in the
future should be reduced to present value. Any award you make for the
value of any money and services you decide [name of decedent] would
have provided [name of plaintiff] between the date of [his/her/nonbinary
pronoun] death on [date of death] and the present should not be reduced
to present value.
[In computing damages, consider the losses suffered by all plaintiffs and
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return a verdict of a single amount for all plaintiffs. I will divide the
amount [among/between] the plaintiffs.]
New September 2003; Revised December 2011
Directions for Use
The list of damages is optional and is intended to include those items of damage for
which recovery is commonly sought in the ordinary FELA case. This list is not
intended to exclude any item of damages that is supported in evidence and the
authorities. There must be evidence to support each item listed.
The items of damage set forth in items number 3 and 4 are recoverable by the
personal representative on behalf of the spouse, children, or parents of the decedent,
if supported by the evidence.
See also CACI No. 3904A, Present Cash Value, CACI No. 3904B, Use of Present-
Value Tables, and CACI No. 3932, Life Expectancy.
Sources and Authority
• Federal Employers’ Liability Act. Title 45 United States Code section 51.
• Contracts Waiving FELA Liability Are Void. Title 45 United States Code section
55.
• FELA Right of Action Survives. Title 45 United States Code section 59.
• “[I]t is settled that the propriety of jury instructions concerning the measure of
damages in an FELA action is an issue of ‘substance’ determined by federal
law.” (St. Louis Southwestern Railway Co. v. Dickerson (1985) 470 U.S. 409,
411 [105 S.Ct. 1347, 84 L.Ed.2d 303], internal citation omitted.)
• “The elements which make up the total damage resulting to a minor child from a
parent’s death may be materially different from a parent’s examination where the
beneficiary is a spouse or collateral dependent relative; but in every instance the
award must be based upon money values, the amount of which can be
ascertained only upon a view of the peculiar facts presented.” (Norfolk &
Western Railroad Co. v. Holbrook (1915) 235 U.S. 625, 629 [35 S.Ct. 143, 59
L.Ed. 392], internal citations omitted.)
• “In the present case there was testimony concerning the personal qualities of the
deceased and the interest which he took in his family. It was proper, therefore, to
charge that the jury might take into consideration the care, attention, instruction,
training, advice, and guidance which the evidence showed he reasonably might
have been expected to give his children during their minority, and to include the
pecuniary value thereof in the damages assessed.” (Norfolk & Western Railroad
Co., supra, 235 U.S. at p. 629.)
• “ ‘In the absence of evidence that an adult child is either dependent upon or had
any reasonable grounds for expecting any pecuniary benefit from a continuance
of the decedent’s life, a recovery on behalf of such child is excluded.’ ” (Kozar
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v. Chesapeake & Ohio Railway Co. (6th Cir. 1971) 449 F.2d 1238, 1243, internal
citation omitted.)
• “[T]he conclusion is unavoidable that the personal representative is to recover on
behalf of the designated beneficiaries, not only such damages as will compensate
them for their own pecuniary loss, but also such damages as will be reasonably
compensatory for the loss and suffering of the injured person while he lived.”
(St. Louis, I.M. & S. Railway Co. v. Craft (1915) 237 U.S. 648, 658 [35 S.Ct.
704, 59 L.Ed. 1160].)
• “Funeral expenses . . . may not be included in damages awarded in FELA
actions.” (Dubose v. Kansas City Southern Railway Co. (5th Cir. 1984) 729 F.2d
1026, 1033.)
• “In a wrongful-death action under the FELA, the measure of recovery is ‘the
damages . . . [that] flow from the deprivation of the pecuniary benefits which
the beneficiaries might have reasonably received . . . .’ The amount of money
that a wage earner is able to contribute to the support of his family is
unquestionably affected by the amount of the tax he must pay to the Federal
Government. It is his after-tax income, rather than his gross income before taxes,
that provides the only realistic measure of his ability to support his family. It
follows inexorably that the wage earner’s income tax is a relevant factor in
calculating the monetary loss suffered by his dependents when he dies.” (Norfolk
& W. Ry. Co. v. Liepelt (1980) 444 U.S. 490, 493–494 [100 S.Ct. 755, 62
L.Ed.2d 689], internal citation omitted.)
• “[T]he damages are such as flow from the deprivation of the pecuniary benefits
which the beneficiaries might have reasonably received if the deceased had not
died from his injuries.” (Michigan Central Railroad Co. v. Vreeland (1913) 227
U.S. 59, 70 [33 S.Ct. 192, 57 L.Ed. 417].)
• “The seaman may thus recover for all of his pecuniary damages including such
damages as the cost of employing someone else to perform those domestic
services that he would otherwise have been able to render but is now incapable
of doing.” (Cruz v. Hendy International Co. (5th Cir. 1981) 638 F.2d 719, 723
[Jones Act case], overruled on other grounds in Miles v. Apex Marine Corp.
(1990) 498 U.S. 19, 32–33 [111 S.Ct. 317, 112 L.Ed.2d 275].)
• “While at first glance the language of this provision seems broad enough to
completely abrogate the common law collateral source rule, courts have limited
the scope of the provision by focusing on the requirement that the covered
payments be made ‘on account of the injury.’ Thus, the cases draw a distinction
between payments emanating from a fringe benefit such as a retirement fund or
a general hospital and medical insurance plan, and payments which the employer
has undertaken voluntarily to indemnify itself against possible liabilities under
the FELA.” (Clark v. Burlington Northern, Inc. (8th Cir. 1984) 726 F.2d 448,
450, internal citation omitted.)
• “A benefit may be exempt from setoff under the collateral source rule even
though the employer is the sole source of the fund. The important consideration
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is the character of the benefits received, rather than whether the source is
actually independent of the employer. Medical expenses paid for by insurance
are exempt from setoff regardless of whether the employer paid one hundred
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he should
not be allowed to set off compensation from a ‘collateral source’ against the
amount he owes on account of his tort.” (Russo v. Matson Navigation Co. (9th
Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and that
the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
2 Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 21,
Jurisdiction, § 21.01[3] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.36,
485.43, 485.44 (Matthew Bender)
2943–2999. Reserved for Future Use
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VF-2900. FELA—Negligence—Plaintiff’s Negligence at Issue
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] employed by [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] a common carrier by railroad?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant] engaged in interstate commerce?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff/decedent]’s job duties further, or in any way
substantially affect, interstate commerce?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff/decedent] acting within the scope of [his/her/
nonbinary pronoun] employment at the time of the incident?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant] negligent?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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7. Was [name of plaintiff] harmed?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of defendant]’s negligence a cause of [name of plaintiff/
decedent]’s [harm/death]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s total damages? Do not reduce the
damages based on the fault, if any, of [name of plaintiff/decedent].
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past loss, including [physical
pain/mental suffering:] $ ]
[d. Future loss, including [physical
pain/mental suffering:] $ ]
9. TOTAL $
9. If [name of plaintiff] has proved any damages, then answer
question 10. If [name of plaintiff] has not proved any damages,
then stop here, answer no further questions, and have the
presiding juror sign and date this form.
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10. Was [name of plaintiff/decedent] negligent?
10. Yes No
10. If your answer to question 10 is yes, then answer question 11. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
11. Was [name of plaintiff/decedent]’s negligence a cause of [his/her/
nonbinary pronoun] harm?
11. Yes No
11. If your answer to question 11 is yes, then answer question 12. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
12. What percentage of responsibility for [name of plaintiff]’s harm do
you assign to:
12. [Name of defendant]: %
[Name of plaintiff/decedent]: %
12. TOTAL: 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2900, FELA—Essential Factual Elements, and
CACI No. 2904, Comparative Fault.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
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3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-2901. Federal Safety Appliance Act or Boiler Inspection Act
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] employed by [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] a common carrier by railroad?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant] engaged in interstate commerce?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff/decedent]’s job duties further, or in any way
substantially affect, interstate commerce?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff/decedent] acting within the scope of [his/her/
nonbinary pronoun] employment at the time of the incident?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of defendant] [describe violation of Federal Safety
Appliance Act/Boiler Inspection Act]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
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the presiding juror sign and date this form.
7. Was [name of plaintiff] harmed?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of defendant]’s conduct a cause of [[name of plaintiff]’s
harm/[name of decedent]’s death]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past loss, including [physical
pain/mental suffering:] $ ]
[d. Future loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
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After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2920, Essential Factual Elements—Federal Safety
Appliance Act or Boiler Inspection Act.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2902–VF-2999. Reserved for Future Use
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3000. Violation of Federal Civil Rights—In General—Essential Factual Elements
(42 U.S.C. § 1983)
3001. Local Government Liability—Policy or Custom—Essential Factual Elements
(42 U.S.C. § 1983)
3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)
3003. Local Government Liability—Failure to Train—Essential Factual Elements
(42 U.S.C. § 1983)
3004. Local Government Liability—Act or Ratification by Official With Final
Policymaking Authority—Essential Factual Elements (42 U.S.C. § 1983)
3005. Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983)
3006–3019. Reserved for Future Use
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential
Factual Elements (42 U.S.C. § 1983)
3021. Unlawful Arrest by Peace Officer Without a Warrant—Essential Factual
Elements (42 U.S.C. § 1983)
3022. Unreasonable Search—Search With a Warrant—Essential Factual Elements
(42 U.S.C. § 1983)
3023. Unreasonable Search or Seizure—Search or Seizure Without a
Warrant—Essential Factual Elements (42 U.S.C. § 1983)
3024. Affirmative Defense—Search Incident to Lawful Arrest
3025. Affirmative Defense—Consent to Search
3026. Affirmative Defense—Exigent Circumstances
3027. Affirmative Defense—Emergency
3028–3039. Reserved for Future Use
3040. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm (42 U.S.C. § 1983)
3041. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical
Care (42 U.S.C. § 1983)
3042. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive
Force (42 U.S.C. § 1983)
3043. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Deprivation of Necessities (42 U.S.C. § 1983)
3044–3045 Reserved for Future Use
3046. Violation of Pretrial Detainee’s Federal Civil Rights—Fourteenth
Amendment—Medical Care and Conditions of Confinement (42 U.S.C.
§ 1983)
3047–3049. Reserved for Future Use
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3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
3051. Unlawful Removal of Child From Parental Custody Without a
Warrant—Essential Factual Elements (42 U.S.C. § 1983)
3052. Use of Fabricated Evidence—Essential Factual Elements (42 U.S.C. § 1983)
3053. Retaliation for Exercise of Free Speech Rights—Public Employee—Essential
Factual Elements (42 U.S.C. § 1983)
3054. Reserved for Future Use
3055. Rebuttal of Retaliatory Motive
3056–3059. Reserved for Future Use
3060. Unruh Civil Rights Act—Essential Factual Elements (Civ. Code, §§ 51, 52)
3061. Discrimination in Business Dealings—Essential Factual Elements (Civ.
Code, § 51.5)
3062. Gender Price Discrimination—Essential Factual Elements (Civ. Code,
§ 51.6)
3063. Acts of Violence—Ralph Act—Essential Factual Elements (Civ. Code,
§ 51.7)
3064. Threats of Violence—Ralph Act—Essential Factual Elements (Civ. Code,
§ 51.7)
3065. Sexual Harassment in Defined Relationship—Essential Factual Elements
(Civ. Code, § 51.9)
3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1)
3067. Unruh Civil Rights Act—Damages (Civ. Code, §§ 51, 52(a))
3068. Ralph Act—Damages and Penalty (Civ. Code, §§ 51.7, 52(b))
3069. Harassment in Educational Institution (Ed. Code, § 220)
3070. Disability Discrimination—Access Barriers to Public Facility—Construction-
Related Accessibility Standards Act—Essential Factual Elements (Civ. Code,
§§ 54.3, 55.56)
3071. Retaliation for Refusing to Authorize Disclosure of Medical
Information—Essential Factual Elements (Civ. Code, § 56.20(b))
3072–3099. Reserved for Future Use
VF-3000. Violation of Federal Civil Rights—In General (42 U.S.C. § 1983)
VF-3001. Public Entity Liability (42 U.S.C. § 1983)
VF-3002. Public Entity Liability—Failure to Train (42 U.S.C. § 1983)
VF-3003–VF-3009. Reserved for Future Use
VF-3010. Excessive Use of Force—Unreasonable Arrest or Other Seizure (42
U.S.C. § 1983)
VF-3011. Unreasonable Search—Search With a Warrant (42 U.S.C. § 1983)
VF-3012. Unreasonable Search or Seizure—Search or Seizure Without a Warrant
(42 U.S.C. § 1983)
VF-3013. Unreasonable Search—Search Without a Warrant—Affirmative
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Defense—Search Incident to Lawful Arrest (42 U.S.C. § 1983)
VF-3014–VF-3019. Reserved for Future Use
VF-3020. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Excessive Force (42 U.S.C. § 1983)
VF-3021. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm (42 U.S.C. § 1983)
VF-3022. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care (42 U.S.C. § 1983)
VF-3023. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Deprivation of Necessities
VF-3024–VF-3029. Reserved for Future Use
VF-3030. Unruh Civil Rights Act (Civ. Code, §§ 51, 52(a))
VF-3031. Discrimination in Business Dealings (Civ. Code, §§ 51.5, 52(a))
VF-3032. Gender Price Discrimination (Civ. Code, § 51.6)
VF-3033. Ralph Act (Civ. Code, § 51.7)
VF-3034. Sexual Harassment in Defined Relationship (Civ. Code, § 51.9)
VF-3035. Bane Act (Civ. Code, § 52.1)
VF-3036–VF-3099. Reserved for Future Use
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3000. Violation of Federal Civil Rights—In General—Essential
Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] civil rights. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] [intentionally/[other applicable state of
mind]] [insert wrongful act];
2. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
3. That [name of defendant]’s conduct violated [name of plaintiff]’s
right [insert right, e.g., “of privacy”];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s [insert wrongful act] was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
In element 1, the standard is not always based on intentional conduct. Insert the
appropriate level of scienter. For example, Eighth Amendment cases involve conduct
carried out with “deliberate indifference,” and Fourth Amendment claims do not
necessarily involve intentional conduct. The “official duties” referred to in element 2
must be duties created pursuant to any state, county, or municipal law, ordinance, or
regulation. This aspect of color of law most likely will not be a jury issue, so it has
been omitted to shorten the wording of element 2. This instruction is intended for
claims not covered by any of the following more specific instructions regarding the
elements that the plaintiff must prove.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “42 United States Code section 1983 . . . was enacted ‘to deter state actors from
using the badge of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such deterrence fails.’ ”
(Modacure v. B&B Vehicle Processing, Inc. (2018) 30 Cal.App.5th 690, 693 [241
Cal.Rptr.3d 761].)
• “A § 1983 claim creates a species of tort liability, with damages determined
‘according to principles derived from the common law of torts.’ ” (Mendez v.
Cty. of L.A. (9th Cir. 2018) 897 F.3d 1067, 1074.)
• “A claim under 42 United States Code section 1983 may be based on a showing
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that the defendant, acting under color of state law, deprived the plaintiff of a
federally protected right.” (Modacure, supra, 30 Cal.App.5th at p. 694.)
• “As we have said many times, § 1983 ‘is not itself a source of substantive
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere
conferred.’ ” (Graham v. Connor (1989) 490 U.S. 386, 393–394 [109 S.Ct. 1865,
104 L.Ed.2d 443], internal citation omitted.)
• “Section 1983 does not create any substantive rights; rather it is the vehicle
whereby plaintiffs can challenge actions by governmental officials.” (Jones v.
Williams (9th Cir. 2002) 297 F.3d 930, 934.)
• “By the plain terms of § 1983, two—and only two—allegations are required in
order to state a cause of action under that statute. First, the plaintiff must allege
that some person has deprived him of a federal right. Second, he must allege
that the person who has deprived him of that right acted under color of state or
territorial law.” (Catsouras v. Department of California Highway Patrol (2010)
181 Cal.App.4th 856, 890 [104 Cal.Rptr.3d 352].)
• “Section 1983 can also be used to enforce federal statutes. For a statutory
provision to be privately enforceable, however, it must create an individual
right.” (Henry A. v. Willden (9th Cir. 2012) 678 F.3d 991, 1005, internal citation
omitted.)
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d 920].)
• “[S]tates are not ‘persons’ subject to suit under section 1983.” (Mackey v. Board
of Trustees of California State University (2019) 31 Cal.App.5th 640, 654 [242
Cal.Rptr.3d 757].)
• “The jury was properly instructed on [plaintiff]’s burden of proof and the
particular elements of the section 1983 claim. (CACI No. 3000.)” (King v. State
of California (2015) 242 Cal.App.4th 265, 280 [195 Cal.Rptr.3d 286].)
• “ ‘State courts look to federal law to determine what conduct will support an
action under section 1983. The first inquiry in any section 1983 suit is to
identify the precise constitutional violation with which the defendant is
charged.’ ” (Weaver v. State of California (1998) 63 Cal.App.4th 188, 203 [73
Cal.Rptr.2d 571], internal citations omitted.)
• “ ‘Qualified immunity is an affirmative defense against section 1983 claims. Its
purpose is to shield public officials “from undue interference with their duties
and from potentially disabling threats of liability.” The defense provides
immunity from suit, not merely from liability. Its purpose is to spare defendants
the burden of going forward with trial.’ Because it is an immunity from suit, not
just a mere defense to liability, it is important to resolve immunity questions at
the earliest possible stage in litigation. Immunity should ordinarily be resolved
by the court, not a jury.” (Martinez v. County of Los Angeles (1996) 47
Cal.App.4th 334, 342 [54 Cal.Rptr.2d 772], internal citations omitted.)
• “[D]efendants cannot be held liable for a constitutional violation under 42 U.S.C.
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§ 1983 unless they were integral participants in the unlawful conduct. We have
held that defendants can be liable for ‘integral participation’ even if the actions
of each defendant do not ‘rise to the level of a constitutional violation.’ ”
(Keates v. Koile (9th Cir. 2018) 883 F.3d 1228, 1241, internal citation omitted.)
• “Constitutional torts employ the same measure of damages as common law torts
and are not augmented ‘based on the abstract “value” or “importance” of
constitutional rights . . . .’ Plaintiffs have the burden of proving compensatory
damages in section 1983 cases, and the amount of damages depends ‘largely
upon the credibility of the plaintiffs’ testimony concerning their injuries.’ ”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 321 [103 Cal.Rptr.2d
339], internal citations omitted.)
• “[E]ntitlement to compensatory damages in a civil rights action is not a matter
of discretion: ‘Compensatory damages . . . are mandatory; once liability is
found, the jury is required to award compensatory damages in an amount
appropriate to compensate the plaintiff for his loss.’ ” (Hazle v. Crofoot (9th Cir.
2013) 727 F.3d 983, 992.)
• “[T]he state defendants’ explanation of the jury’s zero-damages award as
allocating all of [plaintiff]’s injury to absent persons reflects the erroneous view
that not only could zero damages be awarded to [plaintiff], but that [plaintiff]’s
damages were capable of apportionment. [Plaintiff] independently challenges the
jury instruction and verdict form that allowed the jury to decide this question,
contending that the district judge should have concluded, as a matter of law, that
[plaintiff] was entitled to compensatory damages and that defendants were jointly
and severally liable for his injuries. He is correct. The district judge erred in
putting the question of apportionment to the jury in the first place, because the
question of whether an injury is capable of apportionment is a legal one to be
decided by the judge, not the jury.” (Hazle, supra, 727 F.3d at pp. 994–995.)
• “An individual acts under color of state law when he or she exercises power
‘possessed by virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.’ ” (Naffe v. Frey (9th Cir. 2015) 789
F.3d 1030, 1036.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “A state employee who is off duty nevertheless acts under color of state law
when (1) the employee ‘purport[s] to or pretend[s] to act under color of law,’ (2)
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his ‘pretense of acting in the performance of his duties . . . had the purpose and
effect of influencing the behavior of others,’ and (3) the harm inflicted on
plaintiff ‘related in some meaningful way either to the officer’s governmental
status or to the performance of his duties.’ ” (Naffe, supra, 789 F.3d at p. 1037,
internal citations omitted.)
• “ ‘While generally not applicable to private parties, a § 1983 action can lie
against a private party when “he is a willful participant in joint action with the
State or its agents.” ’ ” (Julian v. Mission Community Hospital (2017) 11
Cal.App.5th 360, 396 [218 Cal.Rptr.3d 38].)
• “Under this Court’s cases, a private entity can qualify as a state actor in a few
limited circumstances—including, for example, (i) when the private entity
performs a traditional, exclusive public function; (ii) when the government
compels the private entity to take a particular action; or (iii) when the
government acts jointly with the private entity.” (Manhattan Cmty. Access Corp.
v. Halleck (2019) — U.S. — [139 S.Ct. 1921, 1928, 204 L.Ed.2d 405], internal
citations omitted.)
• “[P]rivate parties ordinarily are not subject to suit under [section 1983], unless,
sifting the circumstances of the particular case, the state has so significantly
involved itself in the private conduct that the private parties may fairly be
termed state actors. Among the factors considered are whether the state
subsidized or heavily regulated the conduct, or compelled or encouraged the
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Under the Court’s cases, a private entity may qualify as a state actor when it
exercises ‘powers traditionally exclusively reserved to the State.’ It is not enough
that the federal, state, or local government exercised the function in the past, or
still does. And it is not enough that the function serves the public good or the
public interest in some way. Rather, to qualify as a traditional, exclusive public
function within the meaning of our state-action precedents, the government must
have traditionally and exclusively performed the function.” (Manhattan Cmty.
Access Corp., supra, — U.S. — [139 S.Ct. at p. 1928], original italics.)
• “The Ninth Circuit has articulated four tests for determining whether a private
person acted under color of law: (1) the public function test, (2) the joint action
test, (3) the government nexus test, and (4) the government coercion or
compulsion test. ‘Satisfaction of any one test is sufficient to find state action, so
long as no countervailing factor exists.’ ‘ “[N]o one fact can function as a
necessary condition across the board for finding state action; nor is any set of
circumstances absolutely sufficient, for there may be some countervailing reason
against attributing activity to the government.” ’ ” (Julian, supra, 11 Cal.App.5th
at p. 396.)
• “Because § 1983 ‘was designed to secure private rights against government
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encroachment,’ tribal members can use it to vindicate their ‘individual rights,’
but not the tribe’s “communal rights.’ ” (Chemehuevi Indian Tribe v. McMahon
(9th Cir. 2019) 934 F.3d 1076, 1082, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892 et seq.
2 Civil Rights Actions, Ch. 7, Deprivation of Rights Under Color of State
Law—General Principles (Civil Rights Act of 1871, 42 U.S.C. § 1983), ¶¶ 7.05–7.07,
Ch. 17, Deprivation of Rights Under Color of State Law—General Principles (Civil
Rights Act of 1871, 42 U.S.C. § 1983), ¶ 17.02 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
1 Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California,
Ch. 8, Answers and Responsive Motions Under Rule 12, 8.40
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3001. Local Government Liability—Policy or Custom—Essential
Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was deprived of
[his/her/nonbinary pronoun] civil rights as a result of an official [policy/
custom] of the [name of local governmental entity]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That the [name of local governmental entity] had an official [policy/
custom] [specify policy or custom];
2. That [name of offıcer or employee] was an
[officer/employee/[other]] of [name of local governmental entity];
3. That [name of offıcer or employee] [intentionally/[insert other
applicable state of mind]] [insert conduct allegedly violating
plaintiff’s civil rights];
4. That [name of offıcer or employee]’s conduct violated [name of
plaintiff]’s right [specify right];
5. That [name of offıcer or employee] acted because of this official
[policy/custom].
New September 2003; Revised December 2010; Renumbered from CACI No. 3007
and Revised December 2012
Directions for Use
Give this instruction and CACI No. 3002, “Offıcial Policy or Custom” Explained, if
the plaintiff seeks to hold a local governmental entity liable for a civil rights
violation based on the entity’s official policy or custom. First give CACI No. 3000,
Violation of Federal Civil Rights—In General—Essential Factual Elements, and the
instructions on the particular constitutional violation alleged.
In element 3, a constitutional violation is not always based on intentional conduct.
Insert the appropriate level of scienter. For example, Eighth Amendment cases
involving failure to provide a prisoner with proper medical care require “deliberate
indifference.” (See Hudson v. McMillian (1992) 503 U.S. 1, 5 [112 S.Ct. 995, 117
L.Ed.2d 156].) And Fourth Amendment claims require an “unreasonable” search or
seizure. (See Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento
(1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834.)
For other theories of liability against a local governmental entity, see CACI No.
3003, Local Government Liability—Failure to Train—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
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Sources and Authority
• “[I]t is when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible
under § 1983.” (Monell v. Dept. of Social Services of New York (1978) 436 U.S.
658, 694 [98 S.Ct. 2018, 56 L.Ed.2d 611].)
• Local governmental entities “ ‘can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted. . . .’ ” Local governmental entities also
can be sued “ ‘for constitutional deprivations visited pursuant to governmental
“custom.” ’ ” In addition, “ ‘[t]he plaintiff must . . . demonstrate that, through its
deliberate conduct, the municipality was the “moving force” behind the injury
alleged. That is, a plaintiff must show that the municipal action was taken with
the requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.’ ” (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1147 [119 Cal.Rptr.2d 709, 45
P.3d 1171], internal citations omitted.)
• “Entity liability may arise in one of two forms. The municipality may itself have
directed the deprivation of federal rights through an express government policy.
This was the situation in Monell, where there was an explicit policy requiring
pregnant government employees to take unpaid leaves of absence before such
leaves were medically required. . . . Alternatively, the municipality may have in
place a custom or practice so widespread in usage as to constitute the functional
equivalent of an express policy.” (Choate v. County of Orange (2000) 86
Cal.App.4th 312, 328 [103 Cal.Rptr.2d 339].)
• “ ‘[I]n order to successfully maintain an action under 42 United States Code
section 1983 against governmental defendants for the tortious conduct of
employees under federal law, it is necessary to establish that the conduct
occurred in execution of a government’s policy or custom promulgated either by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.’ ” (Newton v. County of Napa (1990) 217 Cal.App.3d 1551, 1564
[266 Cal.Rptr. 682], internal citations omitted.)
• “Monell provides that a governmental entity may only be held liable where the
entity causes a constitutional violation. To establish Monell liability, ‘ “a plaintiff
must ‘identify the challenged policy, [practice, or custom,] attribute it to the
[county] itself, and show a causal link between the execution of the policy,
[practice, or custom,] and the injury suffered.’ ” [Citation.] In addition, plaintiffs
must “present scienter-like evidence of indifference on the part of a particular
policymaker or policymakers.” [Citation.] The requirement of producing scienter-
like evidence on the part of an official with policymaking authority is consistent
with the conclusion that “absent the conscious decision or deliberate indifference
of some natural person, a [governmental entity], as an abstract entity, cannot be
deemed to have engaged in a constitutional violation by virtue of a policy, a
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custom or failure to train.” [Citation.] “[I]n the absence of any unconstitutional
statute or rule, it is plaintiffs’ burden to articulate a factual basis that
demonstrates considerably more proof than a single incident.” ’ ” (Arista v.
County of Riverside (2018) 29 Cal.App.5th 1051, 1064 [241 Cal.Rptr.3d 437].)
• “Under Monell, a local government body can be held liable under § 1983 for
policies of inaction as well as policies of action. A policy of action is one in
which the government body itself violates someone’s constitutional rights, or
instructs its employees to do so; a policy of inaction is based on a government
body’s ‘failure to implement procedural safeguards to prevent constitutional
violations.’ ” (Jackson v. Barnes (9th Cir. 2014) 749 F.3d 755, 763], internal
citations omitted.)
• “Normally, the question of whether a policy or custom exists would be a jury
question. However, when there are no genuine issues of material fact and the
plaintiff has failed to establish a prima facie case, disposition by summary
judgment is appropriate.” (Trevino v. Gates (9th Cir. 1996) 99 F.3d 911, 920.)
• “A triable issue exists as to whether the root of the unconstitutional behavior
exhibited in [plaintiff]’s case lies in the unofficial operating procedure of
[defendant] County or in the errant acts of individual social workers, and this
question should go to a jury.” (Kirkpatrick v. County of Washoe (9th Cir. 2015)
792 F.3d 1184, 1201.)
• “At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate, supra, 86 Cal.App.4th at p. 328.)
• “To meet this [Monell] requirement, the plaintiff must show both causation-in-
fact and proximate causation.” (Gravelet-Blondin v. Shelton (9th Cir. 2013) 728
F.3d 1086, 1096.)
• “Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
• “Local governmental bodies such as cities and counties are considered ‘persons’
subject to suit under section 1983. States and their instrumentalities, on the other
hand, are not.” (Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83
Cal.App.4th 1098, 1101 [100 Cal.Rptr.2d 289], internal citations omitted.)
• “A municipality can be sued under section 1983 for ‘constitutional deprivations
visited pursuant to governmental “custom.” ’ However, ‘Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy
of some nature caused a constitutional tort. In particular, . . . a municipality
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cannot be held liable solely because it employs a tortfeasor—or, in other words,
a municipality cannot be held liable under § 1983 on a respondeat superior
theory.’ ” (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1118
[190 Cal.Rptr.3d 97], original italics, internal citation omitted.)
• “A local governmental unit is liable only if the alleged deprivation of rights
‘implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers,’ or when the injury is
in ‘execution of a [local] government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.’ ” (County of Los Angeles v. Superior Court (1998) 68
Cal.App.4th 1166, 1171 [80 Cal.Rptr.2d 860], internal citations omitted.)
• “A municipality’s policy or custom resulting in constitutional injury may be
actionable even though the individual public servants are shielded by good faith
immunity.” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 568 [195
Cal.Rptr. 268], internal citations omitted.)
• “No punitive damages can be awarded against a public entity.” (Choate, supra,
86 Cal.App.4th at p. 328, internal citation omitted.)
• “[T]he requirements of Monell do apply to suits against private entities under
§ 1983. . . . [W]e see no basis in the reasoning underlying Monell to distinguish
between municipalities and private entities acting under color of state law.” (Tsao
v. Desert Palace, Inc. (9th Cir. 2012) 698 F.3d 1128, 1139, internal citations
omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892 et seq.
17A Moore’s Federal Practice (3d ed.), Ch.123, Access to Courts: Eleventh
Amendment and State Sovereign Immunity, § 123.23 (Matthew Bender)
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, ¶ 2.03[2][a]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)
“Official [policy/custom]” means: [insert one of the following:]
[A rule or regulation approved by the [city/county]’s legislative
body;] [or]
[A policy statement or decision that is officially made by the [city/
county]’s lawmaking officer or policymaking official;] [or]
[A custom that is a permanent, widespread, or well-settled
practice of the [city/county];] [or]
[An act or omission approved by the [city/county]’s lawmaking
officer or policymaking official.]
New September 2003; Revised June 2012; Renumbered from CACI No. 3008
December 2012
Directions for Use
These definitions are selected examples of official policy drawn from the cited
cases. The instruction may need to be adapted to the facts of a particular case. The
court may need to instruct the jury regarding the legal definition of “policymakers.”
In some cases, it may be necessary to include additional provisions addressing
factors that may indicate an official custom in the absence of a formal policy. The
Ninth Circuit has held that in some cases the plaintiff is entitled to have the jury
instructed that evidence of governmental inaction—specifically, failure to investigate
and discipline employees in the face of widespread constitutional violations—can
support an inference that an unconstitutional custom or practice has been unofficially
adopted. (Hunter v. County of Sacramento (9th Cir. 2011) 652 F.3d 1225, 1234, fn.
8.)
Sources and Authority
• “The [entity] may not be held liable for acts of [employees] unless ‘the action
that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers’ or if the constitutional deprivation was ‘visited pursuant to
governmental “custom” even though such a custom has not received formal
approval through the body’s official decisionmaking channels.’ ” (Redman v.
County of San Diego (9th Cir. 1991) 942 F.2d 1435, 1443–1444, internal citation
omitted.)
• “[A]n act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on
the theory that the relevant practice is so widespread as to have the force of
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law.” (Bd. of the County Comm’rs v. Brown (1997) 520 U.S. 397, 404 [117 S.Ct.
1382, 137 L.Ed.2d 626].)
• “The custom or policy must be a ‘deliberate choice to follow a course of action
. . . made from among various alternatives by the official or officials responsible
for establishing final policy with respect to the subject matter in
question.’ ” (Castro v. County of Los Angeles (9th Cir. 2016) 833 F.3d 1060,
1075 (en banc).)
• “While a rule or regulation promulgated, adopted, or ratified by a local
governmental entity’s legislative body unquestionably satisfies Monell’s policy
requirement, a ‘policy’ within the meaning of § 1983 is not limited to official
legislative action. Indeed, a decision properly made by a local governmental
entity’s authorized decisionmaker—i.e., an official who ‘possesses final authority
to establish [local government] policy with respect to the [challenged]
action’—may constitute official policy. ‘Authority to make municipal policy may
be granted directly by legislative enactment or may be delegated by an official
who possesses such authority, and of course whether an official had final
policymaking authority is a question of state law.’ ” (Thompson v. City of Los
Angeles (9th Cir. 1989) 885 F.2d 1439, 1443, internal citations and footnote
omitted.)
• “[A] plaintiff can show a custom or practice of violating a written policy;
otherwise an entity, no matter how flagrant its actual routine practices, always
could avoid liability by pointing to a pristine set of policies.” (Castro, supra,
833 F.3d at p. 1075 fn. 10.)
• “Appellants need not show evidence of a policy or deficient training; evidence of
an informal practice or custom will suffice.” (Nehad v. Browder (9th Cir. 2019)
929 F.3d 1125, 1141.)
• “As with other questions of state law relevant to the application of federal law,
the identification of those officials whose decisions represent the official policy
of the local governmental unit is itself a legal question to be resolved by the trial
judge before the case is submitted to the jury.” (Jett v. Dallas Independent
School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct. 2702, 105 L.Ed.2d 598].)
• “[I]t is settled that whether an official is a policymaker for a county is dependent
on an analysis of state law, not fact.” (Pitts v. County of Kern (1998) 17 Cal.4th
340, 352 [70 Cal.Rptr.2d 823, 949 P.2d 920], internal citations omitted.)
• “Once those officials who have the power to make official policy on a particular
issue have been identified, it is for the jury to determine whether their decisions
have caused the deprivation of rights at issue by policies which affirmatively
command that it occur, or by acquiescence in a longstanding practice or custom
which constitutes the ‘standard operating procedure’ of the local governmental
entity.” (Jett, supra, 491 U.S. at p. 737, internal citations omitted.)
• “Gibson v. County of Washoe [(9th Cir. 2002) 290 F.3d 1175, 1186] discussed
two types of policies: those that result in the municipality itself violating
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someone’s constitutional rights or instructing its employees to do so, and those
that result, through omission, in municipal responsibility ‘for a constitutional
violation committed by one of its employees, even though the municipality’s
policies were facially constitutional, the municipality did not direct the employee
to take the unconstitutional action, and the municipality did not have the state of
mind required to prove the underlying violation.’ We have referred to these two
types of policies as policies of action and inaction.” (Tsao v. Desert Palace, Inc.
(9th Cir. 2012) 698 F.3d 1128, 1143, internal citations omitted.)
• “A policy of inaction or omission may be based on failure to implement
procedural safeguards to prevent constitutional violations. To establish that there
is a policy based on a failure to preserve constitutional rights, a plaintiff must
show, in addition to a constitutional violation, ‘that this policy “amounts to
deliberate indifference” to the plaintiff’s constitutional right[,]’ and that the
policy caused the violation, ‘in the sense that the [municipality] could have
prevented the violation with an appropriate policy.’ ” (Tsao, supra, 698 F.3d at p.
1143, internal citations omitted.)
• “To show deliberate indifference, [plaintiff] must demonstrate ‘that [defendant]
was on actual or constructive notice that its omission would likely result in a
constitutional violation.’ ” (Tsao, supra, 698 F.3d at p. 1145.)
• “[P]laintiff may prove . . . deliberate indifference, through evidence of a ‘failure
to investigate and discipline employees in the face of widespread constitutional
violations.’ Thus, it is sufficient under our case law to prove a ‘custom’ of
encouraging excessive force to provide evidence that personnel have been
permitted to use force with impunity.” (Rodriguez v. County of Los Angeles (9th
Cir. 2018) 891 F.3d 776, 803, internal citations omitted.)
• “Discussing liability of a municipality under the federal Civil Rights Act based
on ‘custom,’ the California Court of Appeal for the Fifth Appellate District
recently noted, ‘If the plaintiff seeks to show he was injured by governmental
“custom,” he must show that the governmental entity’s “custom” was “made by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.” ’ ” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 569, fn.
11 [195 Cal.Rptr. 268], internal citations omitted.)
• “The federal courts have recognized that local elected officials and appointed
department heads can make official policy or create official custom sufficient to
impose liability under section 1983 on their governmental employers.” (Bach,
supra, 147 Cal.App.3d at p. 570, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 890 et
seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
1 Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California,
Ch. 8, Answers and Responsive Motions Under Rule 12, 8.40
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3003. Local Government Liability—Failure to Train—Essential
Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was deprived of
[his/her/nonbinary pronoun] civil rights as a result of [name of local
governmental entity]’s failure to train its [officers/employees]. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of local governmental entity]’s training program was
not adequate to train its [officers/employees];
2. That [name of local governmental entity] knew because of a pattern
of similar violations[, or it should have been obvious to it,] that
the inadequate training program was likely to result in a
deprivation of the right [specify right violated];
3. That [name of offıcer or employee] violated [name of plaintiff]’s
right [specify right]; and
4. That the failure to provide adequate training was the cause of the
deprivation of [name of plaintiff]’s right [specify right].
New September 2003; Revised December 2010, December 2011; Renumbered from
CACI No. 3009 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the entity’s failure to adequately train its officers
or employees. First give CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements, and the instructions on the particular
constitutional violation alleged.
The inadequate training must amount to a deliberate indifference to constitutional
rights. (Clouthier v. County of Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1249,
overruled en banc on other grounds in Castro v. County of L.A. (9th Cir. 2016) 833
F.3d 1060, 1070.) Element 2 expresses this deliberate-indifference standard.
Deliberate indifference requires proof of a pattern of violations in all but a few very
rare situations in which the unconstitutional consequences of failing to train are
patently obvious. (See Connick v. Thompson (2011) 563 U.S. 51, 63 [131 S.Ct.
1350, 179 L.Ed.2d 417].) Delete the bracketed language in element 2 unless the
facts present the possibility of liability based on patently obvious violations.
For other theories of liability against a local governmental entity, see CACI No.
3001, Local Government Liability—Policy or Custom—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
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Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “We hold today that the inadequacy of police training may serve as the basis for
§ 1983 liability only where the failure to train amounts to deliberate indifference
to the rights of persons with whom the police come into contact. This rule is
most consistent with our admonition in Monell and Polk County v. Dodson, that
a municipality can be liable under § 1983 only where its policies are the
‘moving force [behind] the constitutional violation.’ Only where a municipality’s
failure to train its employees in a relevant respect evidences a ‘deliberate
indifference’ to the rights of its inhabitants can such a shortcoming be properly
thought of as a city ‘policy or custom’ that is actionable under § 1983.” (City of
Canton v. Harris (1989) 489 U.S. 378, 388–389 [109 S.Ct. 1197, 103 L.Ed.2d
412], internal citations and footnote omitted.)
• “In Canton, the Court left open the possibility that, ‘in a narrow range of
circumstances,’ a pattern of similar violations might not be necessary to show
deliberate indifference. The Court posed the hypothetical example of a city that
arms its police force with firearms and deploys the armed officers into the public
to capture fleeing felons without training the officers in the constitutional
limitation on the use of deadly force. Given the known frequency with which
police attempt to arrest fleeing felons and the ‘predictability that an officer
lacking specific tools to handle that situation will violate citizens’ rights,’ the
Court theorized that a city’s decision not to train the officers about constitutional
limits on the use of deadly force could reflect the city’s deliberate indifference to
the ‘highly predictable consequence,’ namely, violations of constitutional rights.
The Court sought not to foreclose the possibility, however rare, that the
unconstitutional consequences of failing to train could be so patently obvious
that a city could be liable under § 1983 without proof of a pre-existing pattern of
violations.” (Connick, supra, 131 S.Ct. at p. 1361], internal citations omitted.)
• “To impose liability on a local government for failure to adequately train its
employees, the government’s omission must amount to ‘deliberate indifference’
to a constitutional right. This standard is met when ‘the need for more or
different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably
be said to have been deliberately indifferent to the need.’ For example, if police
activities in arresting fleeing felons ‘so often violate constitutional rights that the
need for further training must have been plainly obvious to the city
policymakers,’ then the city’s failure to train may constitute ‘deliberate
indifference.’ ” (Clouthier, supra, 591 F.3d at p. 1249, internal citations omitted.)
• “It would be hard to describe the Canton understanding of deliberate
indifference, permitting liability to be premised on obviousness or constructive
notice, as anything but objective.” (Farmer v. Brennan (1994) 511 U.S. 825, 841
[114 S.Ct. 1970, 128 L.Ed.2d 811].)
• “The ninth cause of action was for ‘Failure to Train.’ The elements of such
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cause of action are well established, and include that the City ‘knew because of
a pattern of similar violations that the inadequate training was likely to result in
a deprivation’ of some right of plaintiffs. Put otherwise, the inadequate training
must amount to a deliberate indifference to constitutional rights. Such deliberate
indifference requires proof of a pattern of violations (except in those few very
rare situations in which the unconstitutional consequences of failing to train are
patently obvious).” (Squires v. City of Eureka (2014) 231 Cal.App.4th 577, 597
[180 Cal.Rptr.3d 10], footnote and internal citations omitted.)
• “ ‘The issue in a case like this one . . . is whether that training program is
adequate; and if it is not, the question becomes whether such inadequate training
can justifiably be said to represent “city policy.” ’ Furthermore, the inadequacy in
the city’s training program must be closely related to the ‘ultimate injury,’ such
that the injury would have been avoided had the employee been trained under a
program that was not deficient in the identified respect.” (Irwin v. City of Hemet
(1994) 22 Cal.App.4th 507, 526 [27 Cal.Rptr.2d 433], internal citations omitted.)
• “Where the proper response . . . is obvious to all without training or
supervision, then the failure to train or supervise is generally not ‘so likely’ to
produce a wrong decision as to support an inference of deliberate indifference by
city policymakers to the need to train or supervise.” (Flores v. County of L.A.
(9th Cir. 2014) 758 F.3d 1154, 1160 [no need to train officers not to sexually
assault persons with whom they come in contact].)
• “At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328 [103 Cal.Rptr.2d
339].)
• “Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 897
17A Moore’s Federal Practice (3d ed.), Ch.123, Access to Courts: Eleventh
Amendment and State Sovereign Immunity, § 123.23 (Matthew Bender)
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, ¶ 2.03[3]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3004. Local Government Liability—Act or Ratification by Official
With Final Policymaking Authority—Essential Factual Elements
(42 U.S.C. § 1983)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was deprived of
[his/her/nonbinary pronoun] civil rights as a result of [specify alleged
unconstitutional conduct, e.g., being denied a parade permit because of the
political message of the parade]. [Name of offıcial] is the person
responsible for establishing final policy with respect to [specify subject
matter, e.g., granting parade permits] for [name of local governmental
entity].
To establish that [name of local governmental entity] is responsible for this
deprivation, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff]’s right [specify right violated] was violated;
2. That [name of offıcial] was the person who [either] [actually
[made the decision/committed the acts]/ [or] later personally
ratified the [decision/acts]] that led to the deprivation of [name of
plaintiff]’s civil rights;
3. That [name of offıcial]’s [acts/decision] [was/were] a conscious and
deliberate choice to follow a course of action from among various
alternatives; and
4. That [name of offıcial] [[made the decision/committed the acts]/
[or] approved the [decision/acts]] with knowledge of [specify facts
constituting the alleged unlawful conduct].
[[Name of offıcial] “ratified” the decision if [he/she/nonbinary pronoun]
knew the unlawful reason for the decision and personally approved it
after it had been made.]
New December 2010; Renumbered from CACI No. 3010 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the acts of an official with final policymaking
authority. First give CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements, and the instructions on the particular
constitutional violation alleged.
Liability may be based on either the official’s personal acts or policy decision that
led to the violation or the official’s subsequent ratification of the acts or decision of
another. (See Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1346–1347.) If both
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theories are alleged in the alternative, include “either” in element 1. Include the last
paragraph if ratification is alleged.
For other theories of liability against a local governmental entity, see CACI No.
3001, Local Government Liability—Policy or Custom—Essential Factual Elements,
and CACI No. 3003, Local Government Liability—Failure to Train—Essential
Factual Elements.
The court determines whether a person is an official policymaker under state law.
(See Jett v. Dallas Independent School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct.
2702, 105 L.Ed.2d 598].)
Sources and Authority
• “[A] local government may be held liable under § 1983 when ‘the individual
who committed the constitutional tort was an official with final policy-making
authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or
action and the basis for it.’ ‘If the authorized policymakers approve a
subordinate’s decision and the basis for it, their ratification would be chargeable
to the municipality because their decision is final.’ ‘There must, however, be
evidence of a conscious, affirmative choice’ on the part of the authorized
policymaker. A local government can be held liable under § 1983 ‘only where “a
deliberate choice to follow a course of action is made from among various
alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question.” ’ ” (Clouthier v. County of Contra
Costa (9th Cir. 2010) 591 F.3d 1232, 1250, overruled en banc on other grounds
in Castro v. County of L.A. (9th Cir. 2016) 833 F.3d 1060, 1070, internal
citations omitted.)
• “Two terms ago, . . . we undertook to define more precisely when a decision on
a single occasion may be enough to establish an unconstitutional municipal
policy. . . . First, a majority of the Court agreed that municipalities may be held
liable under § 1983 only for acts for which the municipality itself is actually
responsible, ‘that is, acts which the municipality has officially sanctioned or
ordered.’ Second, only those municipal officials who have ‘final policymaking
authority’ may by their actions subject the government to § 1983 liability. Third,
whether a particular official has ‘final policymaking authority’ is a question of
state law. Fourth, the challenged action must have been taken pursuant to a
policy adopted by the official or officials responsible under state law for making
policy in that area of the city’s business.” (St. Louis v. Praprotnik (1988) 485
U.S. 112, 123 [108 S.Ct. 915, 99 L.Ed.2d 107], internal citations omitted.)
• “[A] municipality may be liable for an ‘isolated constitutional violation when
the person causing the violation has final policymaking authority.’ ” (Garmon v.
County of L.A. (9th Cir. 2016) 828 F.3d 837, 846, internal citation omitted.) “As
with other questions of state law relevant to the application of federal law, the
identification of those officials whose decisions represent the official policy of
the local governmental unit is itself a legal question to be resolved by the trial
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judge before the case is submitted to the jury.” (Jett, supra, 491 U.S. at p. 737,
original italics.)
• “Ratification is the voluntary election by a person to adopt in some manner as
his own an act which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if originally
authorized by him.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [104
Cal.Rptr. 57, 500 P.2d 1401].)
• “[R]atification requires, among other things, knowledge of the alleged
constitutional violation.” (Christie v. Iopa (9th Cir. 1999) 176 F.3d 1231, 1239,
internal citations omitted.)
• “[A] policymaker’s mere refusal to overrule a subordinate’s completed act does
not constitute approval.” (Christie, supra, 176 F.3d at p. 1239.)
• “At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328 [103 Cal.Rptr.2d
339].)
• “Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 905
17A Moore’s Federal Practice (3d ed.), Ch.123, Access to Courts: Eleventh
Amendment and State Sovereign Immunity, § 123.23 (Matthew Bender)
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, ¶ 2.03[2][b]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.12 (Matthew Bender)
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3005. Supervisor Liability for Acts of Subordinates (42 U.S.C.
§ 1983)
[Name of plaintiff] claims that [name of supervisor defendant] is personally
liable for [his/her/nonbinary pronoun] harm. In order to establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of supervisor defendant] knew, or in the exercise of
reasonable diligence should have known, of [name of subordinate
employee defendant]’s wrongful conduct;
2. That [name of supervisor defendant] knew that the wrongful
conduct created a substantial risk of harm to [name of plaintiff];
3. That [name of supervisor defendant] disregarded that risk by
[expressly approving/impliedly approving/ [or] failing to take
adequate action to prevent] the wrongful conduct; and
4. That [name of supervisor defendant]’s conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New April 2007; Renumbered from CACI No. 3013 December 2010; Revised
December 2011; Renumbered from CACI No. 3017 December 2012; Revised June
2013
Directions for Use
Read this instruction in cases in which a supervisor is alleged to be personally liable
for the violation of the plaintiff’s civil rights under Title 42 United States Code
section 1983.
For certain constitutional violations, deliberate indifference based on knowledge and
acquiescence is insufficient to establish the supervisor’s liability. The supervisor
must act with the purpose necessary to establish the underlying violation. (Ashcroft
v. Iqbal (2009) 556 U.S. 662, 676–677 [129 S.Ct. 1937, 173 L.Ed.2d 868] [for
claim of invidious discrimination in violation of the First and Fifth Amendments,
plaintiff must plead and prove that defendant acted with discriminatory purpose].) In
such a case, element 3 requires not only express approval, but also discriminatory
purpose. The United States Supreme Court has found constitutional torts to require
specific intent in three situations: (1) due process claims for injuries caused by a
high-speed chase (See County of Sacramento v. Lewis (1998) 523 U.S. 833, 836
[118 S.Ct. 1708, 140 L.Ed.2d 1043].); (2) Eighth Amendment claims for injuries
suffered during the response to a prison disturbance (See Whitley v. Albers (1986)
475 U.S. 312, 320–321 [106 S.Ct. 1078, 89 L.Ed.2d 251].); and (3) invidious
discrimination under the equal protection clause and the First Amendment free
exercise clause. (See Ashcroft v. Iqbal, supra, 556 U.S. at pp. 676–677.)
The Ninth Circuit has held that deliberate indifference based on knowledge and
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acquiescence is still sufficient to support supervisor liability if the underlying
constitutional violation does not require purposeful discrimination. (OSU Student
Alliance v. Ray (9th Cir. 2012) 699 F.3d 1053, 1070–1075 [knowing acquiescence is
sufficient to establish supervisor liability for free-speech violations because intent to
discriminate is not required]; see also Starr v. Baca (9th Cir. 2011) 652 F.3d 1202,
1207 [same for 8th Amendment violation for cruel and unusual punishment].)
Sources and Authority
• “A ‘supervisory official may be held liable in certain circumstances for the
constitutional injuries inflicted by their subordinates. . . . [T]hat liability is not
premised upon respondeat superior but upon “a recognition that supervisory
indifference or tacit authorization of subordinates’ misconduct may be a
causative factor in the constitutional injuries they inflict.” ’ ” (Weaver v. State of
California (1998) 63 Cal.App.4th 188, 209 [73 Cal.Rptr.2d 571], internal
citations omitted.)
• “[W]hen a supervisor is found liable based on deliberate indifference, the
supervisor is being held liable for his or her own culpable action or inaction, not
held vicariously liable for the culpable action or inaction of his or her
subordinates.” (Starr, supra, 652 F.3d at p. 1207.)
• “To establish supervisory liability under section 1983, [plaintiff] was required to
prove: (1) the supervisor had actual or constructive knowledge of [defendant’s]
wrongful conduct; (2) the supervisor’s response ‘“ was so inadequate as to show
‘deliberate indifference to or tacit authorization of the alleged offensive
practices’ ” ’; and (3) the existence of an ‘affirmative causal link’ between the
supervisor’s inaction and [plaintiff’s] injuries.” (Grassilli v. Barr (2006) 142
Cal.App.4th 1260, 1279–1280 [48 Cal.Rptr.3d 715], internal citations omitted.)
• “A supervisor is liable under § 1983 for a subordinate’s constitutional violations
‘if the supervisor participated in or directed the violations, or knew of the
violations and failed to act to prevent them.’ [Defendants] testified that they were
mere observers who stayed at the end of the [plaintiffs’] driveway. But based on
the [plaintiffs’] version of the facts, which we must accept as true in this appeal,
we draw the inference that [defendants] tacitly endorsed the other Sheriff’s
officers’ actions by failing to intervene. . . . On this appeal we do not weigh the
evidence to determine whether [defendants’] stated reasons for not intervening
are plausible.” (Maxwell v. County of San Diego (9th Cir. 2013) 708 F.3d 1075,
1086, internal citation omitted.)
• “A supervisory official is liable under § 1983 so long as ‘there exists either (1)
his or her personal involvement in the constitutional deprivation, or (2) a
sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation.’ ‘The requisite causal connection can be established . . .
by setting in motion a series of acts by others or by knowingly refus[ing] to
terminate a series of acts by others, which [the supervisor] knew or reasonably
should have known would cause others to inflict a constitutional injury.’ Thus, a
supervisor may ‘be liable in his individual capacity for his own culpable action
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or inaction in the training, supervision, or control of his subordinates; for his
acquiescence in the constitutional deprivation; or for conduct that showed a
reckless or callous indifference to the rights of others.’ ” (Rodriguez v. County of
L.A. (9th Cir. 2018) 891 F.3d 776, 798, internal citations omitted.)
• “[T]he claim that a supervisory official knew of unconstitutional conditions and
‘culpable actions of his subordinates’ but failed to act amounts to ‘acquiescence
in the unconstitutional conduct of his subordinates’ and is ‘sufficient to state a
claim of supervisory liability.’ ” (Keates v. Koile (9th Cir. 2018) 883 F.3d 1228,
1243.)
• “ ‘[A] plaintiff must show the supervisor breached a duty to plaintiff which was
the proximate cause of the injury. The law clearly allows actions against
supervisors under section 1983 as long as a sufficient causal connection is
present and the plaintiff was deprived under color of law of a federally secured
right.’ ” (Starr, supra, 652 F.3d at p. 1207, internal citation omitted.)
• “Respondent . . . argues that, under a theory of ‘supervisory liability,’
petitioners can be liable for ‘knowledge and acquiescence in their subordinates’
use of discriminatory criteria to make classification decisions among detainees.’
That is to say, respondent believes a supervisor’s mere knowledge of his
subordinate’s discriminatory purpose amounts to the supervisor’s violating the
Constitution. We reject this argument. Respondent’s conception of ‘supervisory
liability’ is inconsistent with his accurate stipulation that petitioners may not be
held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens
action—where masters do not answer for the torts of their servants—the term
‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government
official, his or her title notwithstanding, is only liable for his or her own
misconduct. In the context of determining whether there is a violation of a
clearly established right to overcome qualified immunity, purpose rather than
knowledge is required to impose Bivens liability on the subordinate for
unconstitutional discrimination; the same holds true for an official charged with
violations arising from his or her superintendent responsibilities.” (Ashcroft v.
Iqbal, supra, 556 U.S. at p. 677, internal citations omitted.)
• “The factors necessary to establish a Bivens violation will vary with the
constitutional provision at issue. Where the claim is invidious discrimination in
contravention of the First and Fifth Amendments, our decisions make clear that
the plaintiff must plead and prove that the defendant acted with discriminatory
purpose. Under extant precedent purposeful discrimination requires more than
‘intent as volition or intent as awareness of consequences.’ It instead involves a
decisionmaker’s undertaking a course of action “because of,” not merely “in
spite of,” [the action’s] adverse effects upon an identifiable group.’ ” (Ashcroft v.
Iqbal, supra, 556 U.S. at pp. 676–677, internal citations omitted.)
• “Iqbal . . . holds that a plaintiff does not state invidious racial discrimination
claims against supervisory defendants by pleading that the supervisors knowingly
acquiesced in discrimination perpetrated by subordinates, but this holding was
based on the elements of invidious discrimination in particular, not on some
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blanket requirement that applies equally to all constitutional tort claims. Iqbal
makes crystal clear that constitutional tort claims against supervisory defendants
turn on the requirements of the particular claim—and, more specifically, on the
state of mind required by the particular claim—not on a generally applicable
concept of supervisory liability. ‘The factors necessary to establish a Bivens
violation will vary with the constitutional provision at issue.’ Allegations that the
[defendants] knowingly acquiesced in their subordinates’ discrimination did not
suffice to state invidious racial discrimination claims against them, because such
claims require specific intent—something that knowing acquiescence does not
establish. On the other hand, because Eighth Amendment claims for cruel and
unusual punishment generally require only deliberate indifference (not specific
intent), a Sheriff is liable for prisoner abuse perpetrated by his subordinates if he
knowingly turns a blind eye to the abuse. The Sheriff need not act with the
purpose that the prisoner be abused. Put simply, constitutional tort liability after
Iqbal depends primarily on the requisite mental state for the violation alleged.”
(OSU Student Alliance, supra, 699 F.3d at p. 1071, internal citations omitted.)
• “ ‘[S]upervisory liability exists even without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the
policy “itself is a repudiation of constitutional rights” and is the “moving force
of a constitutional violation.” ’ ” (Crowley v. Bannister (9th Cir. 2013) 734 F.3d
967, 977.)
• “When a supervisory official advances or manages a policy that instructs its
adherents to violate constitutional rights, then the official specifically intends for
such violations to occur. Claims against such supervisory officials, therefore, do
not fail on the state of mind requirement, be it intent, knowledge, or deliberate
indifference. Iqbal itself supports this holding. There, the Court rejected the
invidious discrimination claims against [supervisory defendants] because the
complaint failed to show that those defendants advanced a policy of purposeful
discrimination (as opposed to a policy geared simply toward detaining
individuals with a ‘suspected link to the [terrorist] attacks’), not because it found
that the complaint had to allege that the supervisors intended to discriminate
against [plaintiff] in particular. Advancing a policy that requires subordinates to
commit constitutional violations is always enough for § 1983 liability, no matter
what the required mental state, so long as the policy proximately causes the
harm—that is, so long as the plaintiff’s constitutional injury in fact occurs
pursuant to the policy.” (OSU Student Alliance, supra, 699 F.3d at p. 1076.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 413
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 8
2 Civil Rights Actions, Ch. 7, Deprivation of Rights Under Color of State
Law—General Principles, ¶ 7.10 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.20[4][a] (Matthew Bender)
3006–3019. Reserved for Future Use
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3020. Excessive Use of Force—Unreasonable Arrest or Other
Seizure—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] used excessive force in
[arresting/detaining] [him/her/nonbinary pronoun] in violation of the
Fourth Amendment to the United States Constitution. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] used force in [arresting/detaining] [name
of plaintiff];
2. That the force used by [name of defendant] was excessive;
3. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s use of excessive force was a substantial
factor in causing [name of plaintiff]’s harm.
Under the Fourth Amendment, force is excessive if it is not reasonably
necessary under the circumstances. In deciding whether force is
reasonably necessary or excessive, you should determine, based on all of
the facts and circumstances, what force a reasonable law enforcement
officer on the scene would have used under the same or similar
circumstances. You should consider the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue [or other circumstances
known to [name of defendant] at the time force was applied];
(c) Whether [name of plaintiff] was actively [resisting
[arrest/detention]/ [or] attempting to avoid [arrest/detention] by
flight];
(d) The amount of time [name of defendant] had to determine the type
and amount of force that reasonably appeared necessary, and any
changing circumstances during that time period[; and/.]
[(e) The type and amount of force used[; and/.]]
(f) [Specify other factors particular to the case].]
New September 2003; Revised June 2012; Renumbered from CACI No. 3001
December 2012; Revised June 2015, June 2016, May 2020, November 2020
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Directions for Use
The Fourth Amendment’s “objective reasonableness” standard applies to all claims
of excessive force against law enforcement officers in the course of making an
arrest, investigatory stop, or other seizure brought under Title 42 United States Code
section 1983, whether deadly or not. (Scott v. Harris (2007) 550 U.S. 372, 381–385
[127 S.Ct. 1769, 167 L.Ed.2d 686].)
The “official duties” referred to in element 3 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 3.
Factors (a), (b), and (c) are often referred to as the “Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are not exclusive. (See Glenn v. Wash. County (9th Cir. 2011) 673
F.3d 864, 872.) Other relevant factors include the availability of less intrusive
alternatives to the force employed, whether proper warnings were given, and
whether it should have been apparent to officers that the person they used force
against was emotionally disturbed. (Id.) These and other additional factors may be
added if appropriate to the facts of the case.
Claims of excessive force brought by pretrial detainees are governed by the
Fourteenth Amendment’s Due Process Clause and are also analyzed under an
objective reasonableness standard. (Kingsley v. Hendrickson (2015) 576 U.S. 389
[135 S.Ct. 2466, 2473, 192 L.Ed.2d 416].) Modify the instruction for use in a case
brought by a pretrial detainee involving the use of excessive force after arrest, but
before conviction. For an instruction on an excessive force claim brought by a
convicted prisoner, see CACI No. 3042, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Excessive Force.
The legality or illegality of the use of deadly force under state law is not relevant to
the constitutional question. (Cf. People v. McKay (2002) 27 Cal.4th 601, 610 [117
Cal.Rptr.2d 236, 41 P.3d 59] [“[T]he [United States Supreme Court] has repeatedly
emphasized that the Fourth Amendment inquiry does not depend on whether the
challenged police conduct was authorized by state law”]; see also Pen. Code,
§ 835a.)
For instructions for use in a negligence claim under California common law based
on the same event and facts, see CACI No. 440, Negligent Use of Nondeadly Force
by Law Enforcement Offıcer in Arrest or Other Seizure—Essential Factual Elements,
and CACI No. 441, Negligent Use of Deadly Force by Peace Offıcer—Essential
Factual Elements. For an instruction for use alleging excessive force as a battery,
see CACI No. 1305, Battery by Peace Offıcer—Essential Factual Elements.
Sources and Authority
• “In addressing an excessive force claim brought under § 1983, analysis begins
by identifying the specific constitutional right allegedly infringed by the
challenged application of force. In most instances, that will be either the Fourth
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Amendment’s prohibition against unreasonable seizures of the person, or the
Eighth Amendment’s ban on cruel and unusual punishments, which are the two
primary sources of constitutional protection against physically abusive
governmental conduct.” (Graham, supra, 490 U.S. at p. 395, internal citations
and footnote omitted.)
• “Where, as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment, which guarantees citizens the
right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of
the person.” (Graham, supra, 490 U.S. at p. 394.)
• “In deciding whether the force deliberately used is, constitutionally speaking,
‘excessive,’ should courts use an objective standard only, or instead a subjective
standard that takes into account a defendant’s state of mind? It is with respect to
this question that we hold that courts must use an objective standard.” (Kingsley,
supra, 576 U.S. at p. 396, original italics.)
• “[A]ll claims that law enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.” (Graham,
supra, 490 U.S. at p. 395.)
• “The question in this case is whether a seizure occurs when an officer shoots
someone who temporarily eludes capture after the shooting. The answer is yes:
The application of physical force to the body of a person with intent to restrain
is a seizure, even if the force does not succeed in subduing the person.” (Torres
v. Madrid (2021) ___ U.S. ___ [141 S.Ct. 989, 993–994, 209 L.Ed.2d 190].)
• “ ‘The intrusiveness of a seizure by means of deadly force is unmatched.’ ‘The
use of deadly force implicates the highest level of Fourth Amendment interests
both because the suspect has a “fundamental interest in his own life” and
because such force “frustrates the interest of the individual, and of society, in
judicial determination of guilt and punishment.” ’ ” (Vos v. City of Newport
Beach (9th Cir. 2018) 892 F.3d 1024, 1031.)
• “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” (Graham, supra, 490 U.S. at p. 396.)
• “Because ‘[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,’ . . . its proper
application requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight.” (Graham,
supra, 490 U.S. at p. 396, internal citation omitted.)
• “The most important of these [factors from Graham, above] is whether the
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suspect posed an immediate threat to the officers or others, as measured
objectively under the circumstances.” (Mendoza v. City of West Covina (2012)
206 Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “[The Graham] factors, however, are not exclusive. We ‘examine the totality of
the circumstances and consider “whatever specific factors may be appropriate in
a particular case, whether or not listed in Graham.” ’ Other relevant factors
include the availability of less intrusive alternatives to the force employed,
whether proper warnings were given and whether it should have been apparent
to officers that the person they used force against was emotionally disturbed.”
(Glenn, supra, 673 F.3d at p. 872, internal citations omitted.)
• “With respect to the possibility of less intrusive force, officers need not employ
the least intrusive means available[,] so long as they act within a range of
reasonable conduct.” (Estate of Lopez v. Gelhaus (9th Cir. 2017) 871 F.3d 998,
1006.)
• “Although officers are not required to use the least intrusive degree of force
available, ‘the availability of alternative methods of capturing or subduing a
suspect may be a factor to consider.’ ” (Vos, supra, 892 F.3d at p. 1033, internal
citation omitted.)
• “Courts ‘also consider, under the totality of the circumstances, the quantum of
force used to arrest the plaintiff, the availability of alternative methods of
capturing or detaining the suspect, and the plaintiff’s mental and emotional
state.’ ” (Brooks v. Clark County (9th Cir. 2016) 828 F.3d 910, 920.)
• “Because the reasonableness standard ‘nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences therefrom, we have
held on many occasions that summary judgment or judgment as a matter of law
in excessive force cases should be granted sparingly.’ ” (Torres v. City of Madera
(9th Cir. 2011) 648 F.3d 1119, 1125.)
• “Justice Stevens incorrectly declares [the ‘objective reasonableness’ standard
under Graham] to be ‘a question of fact best reserved for a jury,’ and complains
we are ‘usurp[ing] the jury’s factfinding function.’ At the summary judgment
stage, however, once we have determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent supportable by the
record, the reasonableness of [defendant]’s actions—or, in Justice Stevens’
parlance, ‘[w]hether [respondent’s] actions have risen to a level warranting
deadly force,’ is a pure question of law.” (Scott, supra, 550 U.S. at p. 381, fn. 8,
original italics, internal citations omitted.)
• “Because there are no genuine issues of material fact and ‘the relevant set of
facts’ has been determined, the reasonableness of the use of force is ‘a pure
question of law.’ ” (Lowry v. City of San Diego (9th Cir. 2017) 858 F.3d 1248,
1256 (en banc).)
• “In assessing the objective reasonableness of a particular use of force, we
consider: (1) ‘the severity of the intrusion on the individual’s Fourth Amendment
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rights by evaluating the type and amount of force inflicted,’ (2) ‘the
government’s interest in the use of force,’ and (3) the balance between ‘the
gravity of the intrusion on the individual’ and ‘the government’s need for that
intrusion.’ ” (Lowry, supra, 858 F.3d at p. 1256.)
• “To be sure, the reasonableness inquiry in the context of excessive force
balances ‘intrusion[s] on the individual’s Fourth Amendment interests’ against
the government’s interests. But in weighing the evidence in favor of the officers,
rather than the [plaintiffs], the district court unfairly tipped the reasonableness
inquiry in the officers’ favor.” (Sandoval v. Las Vegas Metro. Police Dep’t (9th
Cir. 2014) 756 F.3d 1154, 1167, internal citation omitted.)
• “The district court found that [plaintiff] stated a claim for excessive use of force,
but that governmental interests in officer safety, investigating a possible crime,
and controlling an interaction with a potential domestic abuser outweighed the
intrusion upon [plaintiff]’s rights. In reaching this conclusion, the court
improperly ‘weigh[ed] conflicting evidence with respect to . . . disputed material
fact[s].’ ” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 880.)
• “The Fourth Amendment’s ‘reasonableness’ standard is not the same as the
standard of ‘reasonable care’ under tort law, and negligent acts do not incur
constitutional liability.” (Hayes v. County of San Diego 57 Cal.4th 622, 639 [160
Cal.Rptr.3d 684, 305 P.3d 252].)
• “[S]tate negligence law, which considers the totality of the circumstances
surrounding any use of deadly force, is broader than federal Fourth Amendment
law, which tends to focus more narrowly on the moment when deadly force is
used.” (Hayes, supra, 57 Cal.4th at p. 639, internal citations omitted.)
• “While a Fourth Amendment violation cannot be established ‘based merely on
bad tactics that result in a deadly confrontation that could have been avoided,’
the events leading up to the shooting, including the officers tactics, are
encompassed in the facts and circumstances for the reasonableness analysis.”
(Vos, supra, 892 F.3d at p. 1034, internal citations omitted.)
• “We are cognizant of the Supreme Court’s command to evaluate an officer’s
actions ‘from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.’ We also recognize the reality that ‘police
officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.’ This does not mean, however, that a Fourth
Amendment violation will be found only in those rare instances where an officer
and his attorney are unable to find a sufficient number of compelling adjectives
to describe the victim’s conduct. Nor does it mean that we can base our analysis
on what officers actually felt or believed during an incident. Rather, we must ask
if the officers’ conduct is ‘ “objectively reasonable” in light of the facts and
circumstances confronting them’ without regard for an officer’s subjective
intentions.” (Bryan v. MacPherson (9th Cir. 2010) 630 F.3d 805, 831, internal
citations omitted.)
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• “Deadly force is permissible only ‘if the suspect threatens the officer with a
weapon or there is probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious physical harm.’ ” (A. K.
H. v. City of Tustin (9th Cir. 2016) 837 F.3d 1005, 1011.)
• “[A]n officer may not use deadly force to apprehend a suspect where the suspect
poses no immediate threat to the officer or others. On the other hand, it is not
constitutionally unreasonable to prevent escape using deadly force ‘[w]here the
officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others.’ ” (Wilkinson v. Torres (9th Cir.
2010) 610 F.3d 546, 550, internal citations omitted.)
• “It is clearly established law that shooting a fleeing suspect in the back violates
the suspect’s Fourth Amendment rights. ‘Where the suspect poses no immediate
threat to the officer and no threat to others, the harm resulting from failing to
apprehend him does not justify the use of deadly force to do so. . . . A police
officer may not seize an unarmed, nondangerous suspect by shooting him
dead.’ ” (Foster v. City of Indio (9th Cir. 2018) 908 F.3d 1204, 1211.)
• “ ‘[I]f police officers are justified in firing at a suspect in order to end a severe
threat to public safety, the officers need not stop shooting until the threat has
ended.’ But terminating a threat doesn’t necessarily mean terminating the
suspect. If the suspect is on the ground and appears wounded, he may no longer
pose a threat; a reasonable officer would reassess the situation rather than
continue shooting.” (Zion v. County of Orange (9th Cir. 2017) 874 F.3d 1072,
1076, internal citation omitted.)
• “Resistance, or the reasonable perception of resistance, does not entitle police
officers to use any amount of force to restrain a suspect. Rather, police officers
who confront actual (or perceived) resistance are only permitted to use an
amount of force that is reasonable to overcome that resistance.” (Barnard v.
Theobald (9th Cir. 2013) 721 F.3d 1069, 1076, internal citations omitted.)
• “[T]he fact that the ‘suspect was armed with a deadly weapon’ does not render
the officers’ response per se reasonable under the Fourth Amendment. [¶] This is
not to say that the Fourth Amendment always requires officers to delay their fire
until a suspect turns his weapon on them. If the person is armed—or reasonably
suspected of being armed—a furtive movement, harrowing gesture, or serious
verbal threat might create an immediate threat.” (George v. Morris (9th Cir.
2013) 724 F.3d 1191, 1200, original italics, internal citations omitted.)
• “ ‘[A] simple statement by an officer that he fears for his safety or the safety of
others is not enough; there must be objective factors to justify such a concern.’
Here, whether objective factors supported [defendant]’s supposed subjective fear
is not a question that can be answered as a matter of law based upon the limited
evidence in the record, especially given that on summary judgment that evidence
must be construed in the light most favorable to [plaintiff], the non-moving
party. Rather, whether [defendant]’s claim that he feared a broccoli-based assault
is credible and reasonable presents a genuine question of material fact that must
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be resolved not by a court ruling on a motion for summary judgment but by a
jury in its capacity as the trier of fact.” (Young v. County of Los Angeles (9th
Cir. 2011) 655 F.3d 1156, 1163–1164.)
• “An officer’s evil intentions will not make a Fourth Amendment violation out of
an objectively reasonable use of force; nor will an officer’s good intentions make
an objectively unreasonable use of force constitutional.” (Fetters v. County of
Los Angeles (2016) 243 Cal.App.4th 825, 838 [196 Cal.Rptr.3d 848].)
• “Where . . . ‘an officer’s particular use of force is based on a mistake of fact,
we ask whether a reasonable officer would have or should have accurately
perceived that fact.’ ‘[W]hether the mistake was an honest one is not the
concern, only whether it was a reasonable one.’ ” (Nehad v. Browder (9th Cir.
2019) 929 F.3d 1125, 1133, original italics, internal citation and footnote
omitted.)
• “Although Graham does not specifically identify as a relevant factor whether the
suspect poses a threat to himself, we assume that the officers could have used
some reasonable level of force to try to prevent [decedent] from taking a suicidal
act. But we are aware of no published cases holding it reasonable to use a
significant amount of force to try to stop someone from attempting suicide.
Indeed, it would be odd to permit officers to use force capable of causing serious
injury or death in an effort to prevent the possibility that an individual might
attempt to harm only himself. We do not rule out that in some circumstances
some force might be warranted to prevent suicide, but in cases like this one the
‘solution’ could be worse than the problem.” (Glenn, supra, 673 F.3d at p. 872.)
• “This Court has ‘refused to create two tracks of excessive force analysis, one for
the mentally ill and one for serious criminals.’ The Court has, however, ‘found
that even when an emotionally disturbed individual is acting out and inviting
officers to use deadly force to subdue him, the governmental interest in using
such force is diminished by the fact that the officers are confronted . . . with a
mentally ill individual.’ A reasonable jury could conclude, based upon the
information available to [defendant officer] at the time, that there were sufficient
indications of mental illness to diminish the governmental interest in using
deadly force.” (Hughes v. Kisela (9th Cir. 2016) 841 F.3d 1081, 1086.)
• “Whether an officer warned a suspect that failure to comply with the officer’s
commands would result in the use of force is another relevant factor in an
excessive force analysis.” (Nehad, supra, 929 F.3d at p. 1137.)
• “By contrast, if the officer warned the offender that he would employ force, but
the suspect refused to comply, the government has an increased interest in the
use of force.” (Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, 1175,
internal citation omitted.)
• “[P]reshooting conduct is included in the totality of circumstances surrounding
an officer’s use of deadly force, and therefore the officer’s duty to act reasonably
when using deadly force extends to preshooting conduct. But in a case like this
one, where the preshooting conduct did not cause the plaintiff any injury
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independent of the injury resulting from the shooting, the reasonableness of the
officers’ preshooting conduct should not be considered in isolation. Rather, it
should be considered in relation to the question whether the officers’ ultimate use
of deadly force was reasonable.” (Hayes, supra, 57 Cal.4th at p. 632, internal
citation omitted.)
• “Sometimes, however, officers themselves may ‘unnecessarily creat[e] [their]
own sense of urgency.’ Reasonable triers of fact can, taking the totality of the
circumstances into account, conclude that an officer’s poor judgment or lack of
preparedness caused him or her to act unreasonably, ‘with undue haste.’ ”
(Nehad, supra, 929 F.3d at p. 1135, internal citation and footnote omitted.)
• “A person is seized by the police and thus entitled to challenge the government’s
action under the Fourth Amendment when the officer by means of physical force
or show of authority terminates or restrains his freedom of movement through
means intentionally applied.” (Nelson v. City of Davis (9th Cir. 2012) 685 F.3d
867, 875.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of
a writ of habeas corpus. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under
§ 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if the district court
determines that the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.”
(Heck v. Humphrey (1994) 512 U.S. 477, 486–487 [114 S.Ct. 2364, 129 L.Ed.2d
383], footnotes and internal citation omitted.)
• “Heck requires the reviewing court to answer three questions: (1) Was there an
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underlying conviction or sentence relating to the section 1983 claim? (2) Would
a ‘judgment in favor of the plaintiff [in the section 1983 action] “necessarily
imply” . . . the invalidity of the prior conviction or sentence?’ (3) ‘If so, was
the prior conviction or sentence already invalidated or otherwise favorably
terminated?’ ” (Fetters, supra, 243 Cal.App.4th at p. 834.)
• “The Heck inquiry does not require a court to consider whether the section 1983
claim would establish beyond all doubt the invalidity of the criminal outcome;
rather, a court need only ‘consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence.’ ” (Fetters,
supra, 243 Cal.App.4th at p. 841, original italics.)
• “[A] dismissal under section 1203.4 does not invalidate a conviction for
purposes of removing the Heck bar preventing a plaintiff from bringing a civil
action.” (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1224 [217
Cal.Rptr.3d 423].)
• “[Plaintiff]’s section 1983 claim is barred to the extent it alleges that [the
arresting officer] lacked justification to arrest him or to respond with reasonable
force to his resistance. The use of deadly force in this situation, though, requires
a separate analysis. ‘For example, a defendant might resist a lawful arrest, to
which the arresting officers might respond with excessive force to subdue him.
The subsequent use of excessive force would not negate the lawfulness of the
initial arrest attempt, or negate the unlawfulness of the criminal defendant’s
attempt to resist it. Though occurring in one continuous chain of events, two
isolated factual contexts would exist, the first giving rise to criminal liability on
the part of the criminal defendant, and the second giving rise to civil liability on
the part of the arresting officer.’ ” (Yount v. City of Sacramento (2008) 43 Cal.4th
885, 899 [76 Cal.Rptr.3d 787, 183 P.3d 471], original italics.)
• “Plaintiffs contend that the use of force is unlawful because the arrest itself is
unlawful. But that is not so. We have expressly held that claims for false arrest
and excessive force are analytically distinct.” (Sharp v. County of Orange (9th
Cir. 2017) 871 F.3d 901, 916.)
• “[T]he district court effectively required the jury to presume that the arrest was
constitutionally lawful, and so not to consider facts concerning the basis for the
arrest. Doing so removed critical factual questions that were within the jury’s
province to decide. For instance, by taking from the jury the question whether
[officer]’s arrest of [plaintiff] for resisting or obstructing a police officer was
lawful, the district judge implied simultaneously that [plaintiff] was in fact
resisting or failing to obey the police officer’s lawful instructions. Presuming
such resistance could certainly have influenced the jury’s assessment of ‘the need
for force,’ as well as its consideration of the other Graham factors, including
‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by
flight. By erroneously granting judgment as a matter of law on [plaintiff]’s
unlawful arrest claim, the district court impermissibly truncated the jury’s
consideration of [plaintiff]’s excessive force claim.” (Velazquez v. City of Long
Beach (9th Cir. 2015) 793 F.3d 1010, 1027, original italics.)
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Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 981,
985
Chin et al., California Practice Guide: Employment Litigation, Ch.7-G, Unruh Civil
Rights Act, ¶ 7:1526 et seq. (The Rutter Group)
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶¶ 10.00–10.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3021. Unlawful Arrest by Peace Officer Without a
Warrant—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] wrongfully arrested
[him/her/nonbinary pronoun] because [he/she/nonbinary pronoun] did not
have a warrant. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of defendant] arrested [name of plaintiff] without a
warrant [and without probable cause];
2. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] was arrested without probable cause. But in order for
me to do so, you must first decide:
[List all factual disputes that must be resolved by the jury.]]
New April 2009; Revised December 2009; Renumbered from CACI No. 3014
December 2012, June 2016
Directions for Use
Give this instruction in a false arrest case brought under title 42 United States Code
section 1983. For an instruction for false arrest under California law, see CACI No.
1401, False Arrest Without Warrant by Peace Offıcer—Essential Factual Elements.
The ultimate determination of whether the arresting officer had probable cause
(element 1) is to be made by the court as a matter of law. (Hunter v. Bryant (1991)
502 U.S. 224, 227–228 [112 S.Ct. 534, 116 L.Ed.2d 589].) However, in exercising
this role, the court does not sit as the trier of fact. It is still the province of the jury
to determine the facts on conflicting evidence as to what the arresting officer knew
at the time. (See Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3d 1010,
1018–1023; see also King v. State of California (2015) 242 Cal.App.4th 265, 289
[195 Cal.Rptr.3d 286].) Include “without probable cause” in element 1 and the last
optional paragraph if the jury will be asked to find facts with regard to probable
cause.
The “official duties” referred to in element 2 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 2.
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Sources and Authority
• “The Fourth Amendment to the United States Constitution, made applicable to
the states by the Fourteenth Amendment, provides: ‘The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.’ ” (Conway v.
Pasadena Humane Society (1996) 45 Cal.App.4th 163, 171 [52 Cal.Rptr.2d 777],
internal citation omitted.)
• “ ‘A claim for unlawful arrest is cognizable under § 1983 as a violation of the
Fourth Amendment, provided the arrest was without probable cause or other
justification.’ ‘Probable cause exists if the arresting officers “had knowledge and
reasonably trustworthy information of facts and circumstances sufficient to lead a
prudent person to believe that [the arrestee] had committed or was committing a
crime.” ’ ” (Gravelet-Blondin v. Shelton (9th Cir. 2013) 728 F.3d 1086,
1097–1098.)
• “The Court of Appeals’ confusion is evident from its statement that ‘whether a
reasonable officer could have believed he had probable cause is a question for
the trier of fact, and summary judgment . . . based on lack of probable cause is
proper only if there is only one reasonable conclusion a jury could reach.’ This
statement of law is wrong for two reasons. First, it routinely places the question
of immunity in the hands of the jury. Immunity ordinarily should be decided by
the court long before trial. Second, the court should ask whether the agents acted
reasonably under settled law in the circumstances, not whether another
reasonable, or more reasonable, interpretation of the events can be constructed
five years after the fact.” (Hunter, supra, 502 U.S. at pp. 227–228, internal
citations omitted.)
• “The mere existence of some evidence that could suggest self-defense does not
negate probable cause. [Plaintiff]’s claim of self-defense apparently created doubt
in the minds of the jurors, but probable cause can well exist (and often does)
even though ultimately, a jury is not persuaded that there is proof beyond a
reasonable doubt.” (Yousefian v. City of Glendale (9th Cir. 2015) 779 F.3d 1010,
1014.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official duties.”
‘By contrast, an officer who is’ “pursuing his own goals and is not in any way
subject to control by [his public employer],” ’ does not act under color of law,
unless he ‘purports or pretends’ to do so. Officers who engage in confrontations
for personal reasons unrelated to law enforcement, and do not ‘purport[] or
pretend[]’ to be officers, do not act under color of law.” (Huffman v. County of
Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations omitted.)
• “Although the plaintiff bears the burden of proof on the issue of unlawful arrest,
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she can make a prima facie case simply by showing that the arrest was
conducted without a valid warrant. At that point, the burden shifts to the
defendant to provide some evidence that the arresting officers had probable cause
for a warrantless arrest. The plaintiff still has the ultimate burden of proof, but
the burden of production falls on the defendant.” (Dubner v. City & County of
San Francisco (9th Cir. 2001) 266 F.3d 959, 965.)
• “There is no bright-line rule to establish whether an investigatory stop has risen
to the level of an arrest. Instead, this difference is ascertained in light of the
‘ “totality of the circumstances.” ’ This is a highly fact-specific inquiry that
considers the intrusiveness of the methods used in light of whether these
methods were ‘reasonable given the specific circumstances.’ ” (Green v. City &
County of San Francisco (9th Cir. 2014) 751 F.3d 1039, 1047, original italics,
internal citations omitted.)
• “Because stopping an automobile and detaining its occupants, ‘even if only for a
brief period and for a limited purpose,’ constitutes a ‘seizure’ under the Fourth
Amendment, an official must have individualized ‘reasonable suspicion’ of
unlawful conduct to carry out such a stop.” (Tarabochia v. Adkins (9th Cir. 2014)
766 F.3d 1115, 1121, internal citation omitted.)
• “ ‘[Q]ualified immunity is a question of law, not a question of fact. [Citation.]
But Defendants are only entitled to qualified immunity as a matter of law if,
taking the facts in the light most favorable to [the plaintiff], they violated no
clearly established constitutional right. The court must deny the motion for
judgment as a matter of law if reasonable jurors could believe that Defendants
violated [the plaintiff’s] constitutional right, and the right at issue was clearly
established.’ ‘The availability of qualified immunity after a trial is a legal
question informed by the jury’s findings of fact, but ultimately committed to the
court’s judgment.’ “ ‘[D]eference to the jury’s view of the facts persists
throughout each prong of the qualified immunity inquiry.’ ” ‘[T]he jury’s view of
the facts must govern our analysis once litigation has ended with a jury’s
verdict.’ ‘Where, as here, the legal question of qualified immunity turns upon
which version of the facts one accepts, the jury, not the judge, must determine
liability.’ ” (King, supra, 242 Cal.App.4th at p. 289, internal citations omitted.)
• “[Plaintiff] did have a constitutional right under the Fourth Amendment to be
free from involuntary detention without probable cause. Therefore, the issue is
whether the undisputed facts demonstrated that a reasonable officer would have
believed there was probable cause to detain [plaintiff] under [Welfare and
Institutions Code] section 5150.” (Julian v. Mission Community Hospital (2017)
11 Cal.App.5th 360, 387 [218 Cal.Rptr.3d 38].)
• “[I]f what the policeman knew prior to the arrest is genuinely in dispute, and if a
reasonable officer’s perception of probable cause would differ depending on the
correct version, that factual dispute must be resolved by a fact finder. [Citations.]
[¶] . . . [W]e do not find the facts relative to probable cause to arrest, and the
alleged related conspiracy, so plain as to lead us to only a single conclusion, i.e.,
a conclusion in defendants’ favor. The facts are complex, intricate and in key
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areas contested. Even more important, the inferences to be drawn from the web
of facts are disputed and unclear—and are likely to depend on credibility
judgments.” (King, supra, 242 Cal.App.4th at p. 291, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 181
Chin et al., California Practice Guide: Employment Litigation, Ch.7-C, 42 USC
§ 1983, ¶ 7:1365 (The Rutter Group)
5 Levy et al., California Torts, Ch. 60, Principles of Liability and Immunity of
Public Entities and Employees, § 60.06 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.36A (Matthew
Bender)
1 Civil Rights Actions, Ch. 2, Institutional and Individual Immunity, ¶ 2.03
(Matthew Bender)
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3022. Unreasonable Search—Search With a Warrant—Essential
Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] carried out an
unreasonable search of [his/her/nonbinary pronoun]
[person/home/automobile/office/[insert other]]. To establish this claim,
[name of plaintiff] must prove the following:
1. That [name of defendant] searched [name of plaintiff]’s [person/
home/automobile/office/[insert other]];
2. That [name of defendant]’s search was unreasonable;
3. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s unreasonable search was a substantial
factor in causing [name of plaintiff]’s harm.
In deciding whether the search was unreasonable, you should consider,
among other factors, the following:
(a) The scope of the warrant;
(b) The extent of the particular intrusion;
(c) The place in which the search was conducted; [and]
(d) The manner in which the search was conducted; [and]
(e) [Insert other applicable factor].
New September 2003; Renumbered from CACI No. 3002 December 2012; Revised
November 2017
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
This instruction may be modified to assert a claim for an unreasonable detention
while a search warrant is being executed by referencing the detention in elements 2
and 5, in the sentence introducing the factors, and in factor (d). Additional factors
relevant to the reasonableness of the detention should be included under factor (e).
(See Davis v. United States (9th Cir. 2017) 854 F.3d 594, 599.)
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Sources and Authority
• “The Fourth Amendment to the United States Constitution, made applicable to
the states by the Fourteenth Amendment, provides: ‘The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.’ ” (Conway v.
Pasadena Humane Society (1996) 45 Cal.App.4th 163, 171 [52 Cal.Rptr.2d 777],
internal citation omitted.)
• “Excessive or unnecessary destruction of property in the course of a search may
violate the Fourth Amendment, even though the entry itself is lawful and the
fruits of the search not subject to suppression.” (U.S. v. Ramirez (1998) 523 U.S.
65, 71 [118 S.Ct. 992, 140 L.Ed.2d 191.)
• “ ‘The test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application. In each case it requires a balancing
of the need for the particular search against the invasion of personal rights that
the search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v. County
of Sacramento (1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834], internal
citation omitted.)
• “ ‘[T]he Fourth Amendment proscribes only “unreasonable” searches and
seizures.’ The reasonableness of a search or seizure depends ‘not only on when
[it] is made, but also how it is carried out.’ ‘In other words, even when
supported by probable cause, a search or seizure may be invalid if carried out in
an unreasonable fashion.’ ” (Cameron v. Craig (9th Cir. 2013) 713 F.3d 1012,
1021, original italics, internal citation omitted.)
• “Under the Fourth Amendment, ‘a warrant to search for contraband founded on
probable cause implicitly carries with it the limited authority to detain the
occupants of the premises while a proper search is conducted.’ Nevertheless,
‘special circumstances, or possibly a prolonged detention, might lead to a
different conclusion in an unusual case.’ For instance, search-related detentions
that are ‘unnecessarily painful [or] degrading’ and ‘lengthy detentions[] of the
elderly, or of children, or of individuals suffering from a serious illness or
disability raise additional concerns.’ Thus, a ‘seizure must be “carefully tailored’
to the law enforcement interests that . . . justify detention while a search
warrant is being executed.’ ” (Davis, supra, 854 F.3d at p. 599, internal citations
omitted.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.’ ” By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],’ ” does not act under color
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of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “[P]rivate parties ordinarily are not subject to suit under section 1983, unless,
sifting the circumstances of the particular case, the state has so significantly
involved itself in the private conduct that the private parties may fairly be
termed state actors. Among the factors considered are whether the state
subsidized or heavily regulated the conduct, or compelled or encouraged the
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Private parties act under color of state law if they willfully participate in joint
action with state officials to deprive others of constitutional rights. Private parties
involved in such a conspiracy may be liable under section 1983.” (United
Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989) 865 F.2d 1539,
1540, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892 et seq.
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3023. Unreasonable Search or Seizure—Search or Seizure
Without a Warrant—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] carried out an
unreasonable [search/seizure] of [his/her/nonbinary pronoun]
[person/home/automobile/office//property/[insert other]] because [he/she/
nonbinary pronoun] did not have a warrant. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] [searched/seized] [name of plaintiff]’s
[person/home/automobile/office/property/[insert other]];
2. That [name of defendant] did not have a warrant;
3. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s [search/seizure] was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Renumbered from CACI No. 3003 December 2012; Revised
November 2019
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
Sources and Authority
• “The Fourth Amendment to the United States Constitution, made applicable to
the states by the Fourteenth Amendment, provides: ‘The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.’ ” (Conway v.
Pasadena Humane Society (1996) 45 Cal.App.4th 163, 171 [52 Cal.Rptr.2d 777],
internal citation omitted.)
• “A Fourth Amendment ‘search’ occurs when a government agent ‘obtains
information by physically intruding on a constitutionally protected area,’ or
infringes upon a ‘reasonable expectation of privacy,’ As we have explained, . . .
‘when the government “physically occupie[s] private property for the purpose of
obtaining information,” a Fourth Amendment search occurs, regardless whether
the intrusion violated any reasonable expectation of privacy. Only where the
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search did not involve a physical trespass do courts need to consult Katz’s
reasonable-expectation-of-privacy test.’ ” (Whalen v. McMullen (9th Cir. 2018)
907 F.3d 1139, 1146–1147, original italics, internal citations omitted.)
• “[A] seizure conducted without a warrant is per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-
delineated exceptions.” (Sandoval v. County of Sonoma (9th Cir. 2018) 912 F.3d
509, 515, original italics.)
• “[F]or the purposes of § 1983, a properly issued warrant makes an officer’s
otherwise unreasonable entry non-tortious—that is, not a trespass. Absent a
warrant or consent or exigent circumstances, an officer must not enter; it is the
entry that constitutes the breach of duty under the Fourth Amendment. As a
result, the relevant counterfactual for the causation analysis is not what would
have happened had the officers procured a warrant, but rather, what would have
happened had the officers not unlawfully entered the residence.” (Mendez v.
County of Los Angeles (9th Cir. 2018) 897 F.3d 1067, 1076.)
• “[T]here is no talismanic distinction, for Fourth Amendment purposes, between a
warrantless ‘entry’ and a warrantless ‘search.’ ‘The two intrusions share this
fundamental characteristic: the breach of the entrance to an individual’s home.’ ”
(Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 874.)
• “ ‘The Fourth Amendment prohibits only unreasonable searches . . . . [¶] The
test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the
need for the particular search against the invasion of personal rights that the
search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v. County
of Sacramento (1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834], internal
citation omitted.)
• “ ‘[I]n justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.’ ‘And in making that
assessment it is imperative that the facts be judged against an objective standard:
would the facts available to the officer at the moment of the seizure or the
search “warrant a man of reasonable caution in the belief” that the action taken
was appropriate?’ An officer’s good faith is not enough.” (King v. State of
California (2015) 242 Cal.App.4th 265, 283 [195 Cal.Rptr.3d 286], internal
citations omitted.)
• “Thus, the fact that the officers’ reasonable suspicion of wrongdoing is not
particularized to each member of a group of individuals present at the same
location does not automatically mean that a search of the people in the group is
unlawful. Rather, the trier of fact must decide whether the search was reasonable
in light of the circumstances.” (Lyall v. City of Los Angeles (9th Cir. 2015) 807
F.3d 1178, 1194.)
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• “ ‘It is settled doctrine that probable cause for belief that certain articles subject
to seizure are in a dwelling cannot of itself justify a search without a warrant.’
Thus, a warrantless entry into a residence is presumptively unreasonable and
therefore unlawful. Government officials ‘bear a heavy burden when attempting
to demonstrate an urgent need that might justify warrantless searches or
arrests.’ ” (Conway, supra, 45 Cal.App.4th at p. 172, internal citations omitted.)
• “ ‘[I]t is a “basic principle of Fourth Amendment law” ’ that warrantless searches
of the home or the curtilage surrounding the home ‘are presumptively
unreasonable.’ ” (Bonivert, supra, 883 F.3d at p. 873.)
• “The Fourth Amendment shields not only actual owners, but also anyone with
sufficient possessory rights over the property searched. . . . To be shielded by
the Fourth Amendment, a person needs ‘some joint control and supervision of
the place searched,’ not merely permission to be there.” (Lyall, supra, 807 F.3d
at pp. 1186–1187.)
• “[T]he Fourth Amendment’s ‘prohibition on unreasonable searches and seizures
applies to searches conducted by public school officials.’ ” (Scott v. County of
San Bernardino (9th Cir. 2018) 903 F.3d 943, 948.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.’ ” By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],’ ” does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “[P]rivate parties ordinarily are not subject to suit under section 1983, unless,
sifting the circumstances of the particular case, the state has so significantly
involved itself in the private conduct that the private parties may fairly be
termed state actors. Among the factors considered are whether the state
subsidized or heavily regulated the conduct, or compelled or encouraged the
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Private parties act under color of state law if they willfully participate in joint
action with state officials to deprive others of constitutional rights. Private parties
involved in such a conspiracy may be liable under section 1983.” (United
Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989) 865 F.2d 1539,
1540, internal citations omitted.)
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Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 888,
892, 893
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3024. Affirmative Defense—Search Incident to Lawful Arrest
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required. To succeed, [name of defendant] must
prove all of the following:
1. That the search was conducted as part of a lawful arrest of [name
of plaintiff];
2. That [name of defendant] searched only [name of plaintiff] and the
area within which [he/she/nonbinary pronoun] might have gained
possession of a weapon or might have destroyed or hidden
evidence; and
3. That the search was reasonable under the circumstances.
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor].
New September 2003; Renumbered from CACI No. 3004 December 2012
Directions for Use
For instructions regarding whether an arrest is lawful, see instructions in the False
Imprisonment series (CACI Nos. 1400–1409).
This instruction is not intended for use in cases involving automobile searches:
“[W]e hold that when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile.” (New York v. Belton (1981)
453 U.S. 454, 460 [101 S.Ct. 2860, 69 L.Ed.2d 768], footnotes omitted.)
Sources and Authority
• “Searches incident to lawful arrest constitute a well-established exception to the
warrant requirement of the Fourth Amendment.” (Hallstrom v. Garden City (9th
Cir. 1993) 991 F.2d 1473, 1477, internal citations omitted.)
• “Under applicable federal law, a lawful custodial arrest creates a situation which
justifies the full contemporaneous search without a warrant of the person arrested
and of the immediately surrounding area. Such searches are considered valid
because of the need to remove weapons and to prevent the concealment or
destruction of evidence.” (People v. Gutierrez (1984) 163 Cal.App.3d 332,
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334–335 [209 Cal.Rptr. 376], internal citations omitted.)
• “Law enforcement officers are permitted to search the entire passenger
compartment of a car, including the inside of containers, during a ‘search
incident to arrest.’ ” (United States v. Tank (2000) 200 F.3d 627, 631, fn. 6,
internal citations omitted.)
• “In New York v. Belton, we determined that the lower courts ‘have found no
workable definition of “the area within the immediate control of the arrestee”
when that area arguably includes the interior of an automobile and the arrestee is
its recent occupant.’ In order to provide a ‘workable rule,’ we held that ‘articles
inside the relatively narrow compass of the passenger compartment of an
automobile are in fact generally, even if not inevitably, within “the area into
which an arrestee might reach in order to grab a weapon” . . . .’ We also held
that the police may examine the contents of any open or closed container found
within the passenger compartment, ‘for if the passenger compartment is within
the reach of the arrestee, so will containers in it be within his reach.’ ”
(Michigan v. Long (1983) 463 U.S. 1032, 1048–1049 [103 S.Ct. 3469, 77
L.Ed.2d 1201], internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3025. Affirmative Defense—Consent to Search
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required because [name of plaintiff/third person]
consented to the search. To succeed, [name of defendant] must prove both
of the following:
1. That [[name of plaintiff]/[name of third person], who controlled or
reasonably appeared to have control of the area,] knowingly and
voluntarily consented to the search; and
2. That the search was reasonable under all of the circumstances.
[[Name of third person]’s consent is insufficient if [name of plaintiff] was
physically present and expressly refused to consent to the search.]
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor(s)].
New September 2003; Revised April 2009; Renumbered from CACI No. 3005
December 2012
Directions for Use
Give the optional paragraph after element 2 if the defendant relied on the consent of
someone other than the plaintiff to initiate the search. (See Georgia v. Randolph
(2006) 547 U.S. 103, 106 [126 S.Ct. 1515, 164 L.Ed.2d 208].)
Sources and Authority
• “The Fourth Amendment generally prohibits the warrantless entry of a person’s
home, whether to make an arrest or to search for specific objects. The
prohibition does not apply, however, to situations in which voluntary consent has
been obtained, either from the individual whose property is searched or from a
third party who possesses common authority over the premises.” (Illinois v.
Rodriguez (1990) 497 U.S. 177, 181 [110 S.Ct. 2793, 111 L.Ed.2d 148], internal
citations omitted.)
• “ ‘[C]ommon authority’ rests ‘on mutual use of the property by persons generally
having joint access or control for most purposes . . . .’ The burden of
establishing that common authority rests upon the State.” (Illinois v. Rodriguez,
supra, 497 U.S. at p. 181, internal citation omitted.)
• “The Fourth Amendment recognizes a valid warrantless entry and search of
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premises when police obtain the voluntary consent of an occupant who shares, or
is reasonably believed to share, authority over the area in common with a co-
occupant who later objects to the use of evidence so obtained. The question here
is whether such an evidentiary seizure is likewise lawful with the permission of
one occupant when the other, who later seeks to suppress the evidence, is
present at the scene and expressly refuses to consent. We hold that, in the
circumstances here at issue, a physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless search unreasonable and invalid
as to him.” (Georgia, supra, 547 U.S. at p. 106, internal citations omitted.)
• “Where consent is relied upon to justify the lawfulness of a search, the
government ‘has the burden of proving that the consent was, in fact, freely and
voluntarily given.’ ‘The issue of whether or not consent to search was freely and
voluntarily given is one of fact to be determined on the basis of the totality of
the circumstances.’ ” (U.S. v. Henry (9th Cir. 1980) 615 F.2d 1223, 1230,
internal citations omitted.)
• “Whether consent was voluntarily given ‘is to be determined from the totality of
all the circumstances.’ We consider the following factors to assess whether the
consent was voluntary: (1) whether the person was in custody; (2) whether the
officers had their guns drawn; (3) whether a Miranda warning had been given;
(4) whether the person was told that he had the right not to consent; and (5)
whether the person was told that a search warrant could be obtained. Although
no one factor is determinative in the equation, ‘many of this court’s decisions
upholding consent as voluntary are supported by at least several of the factors.’ ”
(U.S. v. Reid (9th Cir. 2000) 226 F.3d 1020, 1026–1027, internal citations
omitted.)
• “According to [defendant], ‘express refusal means verbal refusal.’ We disagree,
as this interpretation finds no support in either common sense or the case law.”
(Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 875.)
• “In determining whether a person consented to an intrusion into her home, we
distinguish between ‘undercover’ entries, where a person invites a government
agent who is concealing that he is a government agent into her home, and ‘ruse’
entries, where a known government agent misrepresents his purpose in seeking
entry. The former does not violate the Fourth Amendment, as long as the
undercover agent does not exceed the scope of his invitation while inside the
home. But ‘[a] ruse entry when the suspect is informed that the person seeking
entry is a government agent but is misinformed as to the purpose for which the
agent seeks entry cannot be justified by consent.’ ” (Whalen v. McMullen (9th
Cir. 2018) 907 F.3d 1139, 1146–1147, internal citations omitted.)
• “Because he entered the home while using a ruse and not while undercover, it is
immaterial that he stayed within [plaintiff]’s presence in the home and did not
conduct a broader search. He did not have consent to be in the home for the
purposes of his visit.” (Whalen, supra, 907 F.3d at p. 1150.)
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Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3026. Affirmative Defense—Exigent Circumstances
[Name of defendant] claims that a search warrant was not required. To
succeed, [name of defendant] must prove both of the following:
1. That a reasonable officer would have believed that, under the
circumstances, there was not enough time to get a search warrant
because entry or search was necessary to prevent [insert one of the
following:]
1. [physical harm to the officer or other persons;]
1. [the destruction or concealment of evidence;]
1. [the escape of a suspect;] and
2. That the search was reasonable under the circumstances.
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [Insert other applicable factor].
New September 2003; Renumbered from CACI No. 3006 December 2012
Sources and Authority
• “Absent consent, exigent circumstances must exist for a warrantless entry into a
home, despite probable cause to believe that a crime has been committed or that
incriminating evidence may be found inside. Such circumstances are ‘few in
number and carefully delineated.’ ‘Exigent circumstances’ means ‘an emergency
situation requiring swift action to prevent imminent danger to life or serious
damage to property, or to forestall the imminent escape of a suspect or
destruction of evidence.’ ” (Conway v. Pasadena Humane Society (1996) 45
Cal.App.4th 163, 172 [52 Cal.Rptr.2d 777], internal citation omitted.)
• “Before agents of the government may invade the sanctity of the home, the
burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.” (Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091,
80 L.Ed.2d 732].)
• “ ‘There are two general exceptions to the warrant requirement for home
searches: exigency and emergency.’ These exceptions are ‘narrow’ and their
boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly
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interfere with the sanctity of the home. In general, the difference between the
two exceptions is this: The ‘emergency’ exception stems from the police officers’
‘community caretaking function’ and allows them ‘to respond to emergency
situations’ that threaten life or limb; this exception does ‘not [derive from] police
officers’ function as criminal investigators.’ By contrast, the ‘exigency’ exception
does derive from the police officers’ investigatory function; it allows them to
enter a home without a warrant if they have both probable cause to believe that
a crime has been or is being committed and a reasonable belief that their entry is
‘necessary to prevent . . . the destruction of relevant evidence, the escape of the
suspect, or some other consequence improperly frustrating legitimate law
enforcement efforts.’ (Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3d 752, 763,
original italics, internal citations omitted.)
• “[D]etermining whether an official had ‘reasonable cause to believe exigent
circumstances existed in a given situation . . . [is a] “question[] of fact to be
determined by a jury.” [Citation.]’ ” (Arce v. Childrens Hospital Los Angeles
(2012) 211 Cal.App.4th 1455, 1475 [150 Cal.Rptr.3d 735].)
• “There is no litmus test for determining whether exigent circumstances exist, and
each case must be decided on the facts known to the officers at the time of the
search or seizure. However, two primary considerations in making this
determination are the gravity of the underlying offense and whether the delay in
seeking a warrant would pose a threat to police or public safety.” (Conway,
supra, 45 Cal.App.4th at p. 172.)
• “ ‘[W]hile the commission of a misdemeanor offense,’ such as the petty theft
that [defendants] were investigating, ‘is not to be taken lightly, it militates
against a finding of exigent circumstances where the offense . . . is not
inherently dangerous.’ ” (Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d
1178, 1189.)
• “Finally, even where exigent circumstances exist, ‘[t]he search must be “strictly
circumscribed by the exigencies which justify its initiation.” ’ ‘An exigent
circumstance may justify a search without a warrant. However, after the
emergency has passed, the [homeowner] regains his right to privacy, and . . . a
second entry [is unlawful].’ ” (Conway, supra, 45 Cal.App.4th at p. 173, internal
citation omitted.)
• “ ‘Exigent circumstances are those in which a substantial risk of harm to the
persons involved or to the law enforcement process would arise if the police
were to delay a search [] until a warrant could be obtained.’ Mere speculation is
not sufficient to show exigent circumstances.” (United States v. Reid (9th Cir.
2000) 226 F.3d 1020, 1027−1028, internal citations omitted.)
• “The government bears the burden of showing specific and articulable facts to
justify the finding of exigent circumstances.” (United States v. Iwai (9th Cir.
2019) 930 F.3d 1141, 1144.)
• “This is a heavy burden and can be satisfied ‘only by demonstrating specific and
articulable facts to justify the finding of exigent circumstances.’ Furthermore,
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‘the presence of exigent circumstances necessarily implies that there is
insufficient time to obtain a warrant; therefore, the government must show that a
warrant could not have been obtained in time.’ ” (Reid, supra, 226 F.3d at p.
1028, internal citations omitted.)
• “When the domestic violence victim is still in the home, circumstances may
justify an entry pursuant to the exigency doctrine.” (Bonivert v. City of Clarkston
(9th Cir. 2018) 883 F.3d 865, 878.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3027. Affirmative Defense—Emergency
[Name of defendant] claims that a search warrant was not required. To
succeed on this defense, [name of defendant] must prove that a peace
officer, under the circumstances, would have reasonably believed that
violence was imminent and that there was an immediate need to protect
[[himself/herself/nonbinary pronoun]/ [or] another person] from serious
harm.
New December 2013
Directions for Use
The emergency defense is similar to the exigent circumstances defense. (See CACI
No. 3026, Affırmative Defense—Exigent Circumstances.) Emergency requires
imminent violence and a need to protect from harm. In contrast, exigent
circumstances is broader, reaching such things as a need to prevent escape or the
destruction of evidence. (See Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3d 752,
763.)
Sources and Authority
• “ ‘There are two general exceptions to the warrant requirement for home
searches: exigency and emergency.’ These exceptions are ‘narrow’ and their
boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly
interfere with the sanctity of the home. In general, the difference between the
two exceptions is this: The ‘emergency’ exception stems from the police officers’
‘community caretaking function’ and allows them ‘to respond to emergency
situations’ that threaten life or limb; this exception does ‘not [derive from] police
officers’ function as criminal investigators.’ By contrast, the ‘exigency’ exception
does derive from the police officers’ investigatory function; it allows them to
enter a home without a warrant if they have both probable cause to believe that
a crime has been or is being committed and a reasonable belief that their entry is
‘necessary to prevent . . . the destruction of relevant evidence, the escape of the
suspect, or some other consequence improperly frustrating legitimate law
enforcement efforts.’ (Hopkins, supra, 573 F.3d at p. 763, original italics, internal
citations omitted.)
• “We previously have recognized that officers acting in their community
caretaking capacities and responding to a perceived emergency may conduct
certain searches without a warrant or probable cause. To determine whether the
emergency exception applies to a particular warrantless search, we examine
whether: ‘(1) considering the totality of the circumstances, law enforcement had
an objectively reasonable basis for concluding that there was an immediate need
to protect others or themselves from serious harm; and (2) the search’s scope
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and manner were reasonable to meet the need.’ ” (Ames v. King County (9th Cir.
2017) 846 F.3d 340, 350.)
• “The testimony that a reasonable officer would have perceived an immediate
threat to his safety is, at a minimum, contradicted by certain portions of the
record. The facts matter, and here, there are triable issues of fact as to whether
‘violence was imminent,’ and whether [defendant]’s warrantless entry was
justified under the emergency exception.” (Sandoval v. Las Vegas Metro. Police
Dept. (9th Cir. 2014) 756 F.3d 1154, 1165, internal citation omitted.)
• “In sum, reasonable police officers in petitioners’ position could have come to
the conclusion that the Fourth Amendment permitted them to enter the . . .
residence if there was an objectively reasonable basis for fearing that violence
was imminent.” (Ryburn v. Huff (2012) 565 U.S. 469, 477 [132 S.Ct. 987, 181
L.Ed.2d 966].)
• “[W]e have refused to hold that ‘domestic abuse cases create a per se’
emergency justifying warrantless entry. [¶] Indeed, all of our decisions involving
a police response to reports of domestic violence have required an objectively
reasonable basis for believing that an actual or imminent injury was unfolding in
the place to be entered.” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d
865, 877, original italics, internal citations omitted.)
• “[O]fficer safety may also fall under the emergency rubric.” (Sandoval, supra,
756 F.3d at p. 1163.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3028–3039. Reserved for Future Use
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3040. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] subjected
[him/her/nonbinary pronoun] to prison conditions that violated [his/her/
nonbinary pronoun] constitutional rights. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That while imprisoned, [describe violation that created risk, e.g.,
[name of plaintiff] was placed in a cell block with rival gang
members];
2. That [name of defendant]’s [conduct/failure to act] created a
substantial risk of serious harm to [name of plaintiff]’s health or
safety;
3. That [name of defendant] knew that [his/her/nonbinary pronoun]
[conduct/failure to act] created a substantial risk of serious harm
to [name of plaintiff]’s health or safety;
4. That [name of defendant] disregarded the risk by failing to take
reasonable measures to address it;
5. That there was no reasonable justification for the [conduct/failure
to act];
6. That [name of defendant] was performing [his/her/nonbinary
pronoun] official duties when [he/she/nonbinary pronoun] [acted/
purported to act/failed to act];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s [conduct/failure to act] was a
substantial factor in causing [name of plaintiff]’s harm.
Whether the risk was obvious is a factor that you may consider in
determining whether [name of defendant] knew of the risk.
New September 2003; Revised December 2010, June 2011; Renumbered from CACI
No. 3011 December 2012; Revised December 2014, June 2015, May 2017, May
2020
Directions for Use
Give this instruction in a case involving conduct that allegedly created a substantial
risk of serious harm to an inmate. (See Farmer v. Brennan (1994) 511 U.S. 825
[114 S.Ct. 1970, 128 L.Ed.2d 811].) For an instruction on deprivation of medical
care, see CACI No. 3041, Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care. For an instruction involving the deprivation of
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necessities, see CACI No. 3043, Violation of Prisoner’s Federal Civil Rights—Eight
Amendment—Deprivation of Necessities.
In element 1, describe the act or omission that created the risk. In elements 2 and 3,
choose “conduct” if the risk was created by affirmative action. Choose “failure to
act” if the risk was created by an omission.
In prison-conditions cases, the inmate must show that the defendant was deliberately
indifferent to the inmate’s health or safety. (Farmer, supra, 511 U.S. at p. 834.)
“Deliberate indifference” involves a two part inquiry. First, the inmate must show
that the prison officials were aware of a “substantial risk of serious harm” to the
inmate’s health or safety, but failed to act to address the danger. (See Castro v.
County of L.A. (9th Cir. 2016) 833 F.3d 1060, 1073.) Second, the inmate must show
that the prison officials had no “reasonable” justification for the conduct, in spite of
that risk. (Thomas v. Ponder (9th Cir. 2010) 611 F.3d 1144, 1150.) Elements 3, 4,
and 5 express the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475, 125
L.Ed.2d 22].)
• “Our cases have held that a prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation alleged must be,
objectively, ‘sufficiently serious.’ For a claim . . . based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. The second requirement follows from the
principle that ‘only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment.’ To violate the Cruel and Unusual Punishments Clause, a
prison official must have a ‘sufficiently culpable state of mind.’ In prison-
conditions cases that state of mind is one of ‘deliberate indifference’ to inmate
health or safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations
omitted.)
• “[D]irect causation by affirmative action is not necessary: ‘a prison official may
be held liable under the Eighth Amendment if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.’ ” (Castro, supra, 833 F.3d at p. 1067, original
italics.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
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from circumstantial evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “We hold . . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.” (Farmer, supra, 511 U.S. at p. 837.)
• “The precise role of legitimate penological interests is not entirely clear in the
context of an Eighth Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley, 482 U.S. 78, 107 S.
Ct. 2254, 96 L. Ed. 2d 64 (1987), which requires only a reasonable relationship
to a legitimate penological interest to justify prison regulations, does not apply to
Eighth Amendment claims. . . . The existence of a legitimate penological
justification has, however, been used in considering whether adverse treatment is
sufficiently gratuitous to constitute punishment for Eighth Amendment purposes.”
(Grenning v. Miller-Stout (9th Cir. 2014) 739 F.3d 1235, 1240.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
. . . conditions of confinement cases, we instruct juries to defer to prison
officials’ judgments in adopting and executing policies needed to preserve
discipline and maintain security.” (Mendiola-Martinez v. Arpaio (9th Cir. 2016)
836 F.3d 1239, 1254, internal citation omitted.)
• “However, our precedent should not be misread to suggest that jail officials are
automatically entitled to deference instructions in conditions of confinement or
excessive force cases brought by prisoners, or § 1983 actions brought by former
inmates. We have long recognized that a jury need not defer to prison officials
where the plaintiff produces substantial evidence showing that the jail’s policy or
practice is an unnecessary, unjustified, or exaggerated response to the need for
prison security.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1183, internal
citations omitted.)
• “Although claims by pretrial detainees arise under the Fourteenth Amendment
and claims by convicted prisoners arise under the Eighth Amendment, our cases
do not distinguish among pretrial and postconviction detainees for purposes of
the excessive force, conditions of confinement, and medical care deference
instructions.” (Shorter, supra, 895 F.3d at p. 1182, fn. 4.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
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‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶¶ 11.02–11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.28 (Matthew Bender)
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3041. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] provided
[him/her/nonbinary pronoun] with inadequate medical care in violation of
[his/her/nonbinary pronoun] constitutional rights. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] had a serious medical need;
2. That [name of defendant] knew that [name of plaintiff] faced a
substantial risk of serious harm if [his/her/nonbinary pronoun]
medical need went untreated;
3. That [name of defendant] consciously disregarded that risk by not
taking reasonable steps to treat [name of plaintiff]’s medical need;
4. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
A serious medical need exists if the failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary and pointless
infliction of pain.
Neither medical negligence alone, nor a difference of opinion between
medical personnel or between doctor and patient, is enough to establish
a violation of [name of plaintiff]’s constitutional rights.
[In determining whether [name of defendant] consciously disregarded a
substantial risk, you should consider the personnel, financial, and other
resources available to [him/her/nonbinary pronoun] or those that [he/she/
nonbinary pronoun] could reasonably have obtained. [Name of defendant]
is not responsible for services that [he/she/nonbinary pronoun] could not
provide or cause to be provided because the necessary personnel,
financial, and other resources were not available or could not be
reasonably obtained.]
New September 2003; Revised December 2010; Renumbered from CACI No. 3012
December 2012; Revised June 2014, December 2014, June 2015, May 2020,
November 2021
Directions for Use
Give this instruction in a case involving the deprivation of medical care to a
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prisoner. For an instruction on a pretrial detainee’s claim of inadequate medical care,
see CACI No. 3046, Violation of Pretrial Detainee’s Federal Civil
Rights—Fourteenth Amendment—Medical Care and Conditions of Confinement.
For an instruction on the creation of a substantial risk of serious harm, see CACI
No. 3040, Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm. For an instruction involving the
deprivation of necessities, see CACI No. 3043, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Deprivation of Necessities.
In prison-conditions cases, the inmate must show that the defendant was deliberately
indifferent to the inmate’s health or safety. In a medical-needs case, deliberate
indifference requires that the prison officials have known of and disregarded an
excessive risk to the inmate’s health or safety. Negligence is not enough. (Farmer v.
Brennan (1994) 511 U.S. 825, 834–837 [114 S.Ct. 1970, 128 L.Ed.2d 811].)
Elements 2 and 3 express deliberate indifference.
The “official duties” referred to in element 3 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 3.
The Ninth Circuit has held that in considering whether an individual prison medical
provider was deliberately indifferent, the jury should be instructed to consider the
economic resources made available to the prison health care system. (See Peralta v.
Dillard (9th Cir. 2014) 744 F.3d 1076, 1084 [en banc].) Although this holding is not
binding on California courts, the last optional paragraph may be given if the
defendant has presented evidence of lack of economic resources and the court
decides that this defense should be presented to the jury.
Sources and Authority
• Deprivation of Civil Rights. Title 42 United States Code section 1983.
• “[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed. Regardless of how evidenced,
deliberate indifference to a prisoner’s serious illness or injury states a cause of
action under section 1983.” (Estelle v. Gamble (1976) 429 U.S. 97, 104–105 [97
S.Ct. 285, 50 L.Ed.2d 251], internal citation and footnotes omitted.)
• “Our cases have held that a prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation alleged must be,
objectively, ‘sufficiently serious.’ For a claim . . . based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. The second requirement follows from the
principle that ‘only the unnecessary and wanton infliction of pain implicates the
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Eighth Amendment.’ To violate the Cruel and Unusual Punishments Clause, a
prison official must have a ‘sufficiently culpable state of mind.’ In prison-
conditions cases that state of mind is one of ‘deliberate indifference’ to inmate
health or safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations
omitted.)
• “ ‘To set forth a constitutional claim under the Eighth Amendment predicated
upon the failure to provide medical treatment, first the plaintiff must show a
serious medical need by demonstrating that failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary and wanton infliction
of pain. Second, a plaintiff must show the defendant’s response to the need was
deliberately indifferent.’ The ‘deliberate indifference’ prong requires ‘(a) a
purposeful act or failure to respond to a prisoner’s pain or possible medical
need, and (b) harm caused by the indifference.’ ‘Indifference may appear when
prison officials deny, delay or intentionally interfere with medical treatment, or it
may be shown in the way in which prison [officials] provide medical care.’
‘[T]he indifference to [a prisoner’s] medical needs must be substantial. Mere
“indifference,” “negligence,” or “medical malpractice” will not support this
[claim].’ Even gross negligence is insufficient to establish deliberate indifference
to serious medical needs.” (Lemire v. Cal. Dep’t of Corr. & Rehab. (9th Cir.
2013) 726 F.3d 1062, 1081–1082, internal citations omitted.)
• “Indications that a plaintiff has a serious medical need include ‘[t]he existence of
an injury that a reasonable doctor or patient would find important and worthy of
comment or treatment; the presence of a medical condition that significantly
affects an individual’s daily activities; or the existence of chronic and substantial
pain.’ ” (Colwell v. Bannister (9th Cir. 2014) 763 F.3d 1060, 1066.)
• “Consistent with that concept and the clear connections between mental health
treatment and the dignity and welfare of prisoners, the Eighth Amendment’s
prohibition against cruel and unusual punishment requires that prisons provide
mental health care that meets ‘minimum constitutional requirements.’ When the
level of a prison’s mental health care ‘fall[s] below the evolving standards of
decency that mark the progress of a maturing society,’ the prison fails to uphold
the constitution’s dignitary principles.” (Disability Rights Montana, Inc. v.
Batista (9th Cir. 2019) 930 F.3d 1090, 1097, internal citation omitted.)
• “We hold . . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.” (Farmer, supra, 511 U.S. at p. 837.)
• “The subjective standard of deliberate indifference requires ‘more than ordinary
lack of due care for the prisoner’s interests or safety.’ The state of mind for
deliberate indifference is subjective recklessness. But the standard is ‘less
stringent in cases involving a prisoner’s medical needs . . . because “the State’s
responsibility to provide inmates with medical care ordinarily does not conflict
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with competing administrative concerns.” ’ ” (Snow v. McDaniel (9th Cir. 2012)
681 F.3d 978, 985, internal citations omitted.)
• “[D]eliberate indifference ‘may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way in
which prison physicians provide medical care.’. . . . ‘[A] prisoner need not
show his harm was substantial.’ ” (Wilhelm v. Rotman (9th Cir. 2012) 680 F.3d
1113, 1122, internal citation omitted.)
• “[A]llegations that a prison official has ignored the instructions of a prisoner’s
treating physician are sufficient to state a claim for deliberate indifference.”
(Wakefield v. Thompson (9th Cir. 1999) 177 F.3d 1160, 1165.)
• “[A] complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment. Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.” (Estelle, supra, 429 U.S. at p.
106.)
• “ ‘A difference of opinion between a physician and the prisoner—or between
medical professionals—concerning what medical care is appropriate does not
amount to deliberate indifference.’ Rather, ‘[t]o show deliberate indifference, the
plaintiff “must show that the course of treatment the doctors chose was
medically unacceptable under the circumstances” and that the defendants “chose
this course in conscious disregard of an excessive risk to plaintiff’s health.” ’ ”
(Colwell, supra, 763 F.3d at p. 1068.)
• “It has been recognized . . . that inadequate medical treatment may, in some
instances, constitute a violation of 42 United States Code section 1983. In Sturts
v. City of Philadelphia, for example, the plaintiff alleged that defendants acted
‘carelessly, recklessly and negligently’ when they failed to remove sutures from
his eye, neck and face. The court concluded that although plaintiff was alleging
inadequate medical treatment, he had stated a cause of action under section
1983: ‘. . . where a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts are generally
reluctant to second guess medical judgments. In some cases, however, the
medical attention rendered may be so woefully inadequate as to amount to no
treatment at all, thereby rising to the level of a § 1983 claim. . . .’ ” (Ochoa v.
Superior Court (1985) 39 Cal.3d 159, 176–177 [216 Cal.Rptr. 661, 703 P.2d 1],
internal citations omitted.)
• “Because society does not expect that prisoners will have unqualified access to
health care, deliberate indifference to medical needs amounts to an Eighth
Amendment violation only if those needs are ‘serious.’ ” (Hudson v. McMillian
(1992) 503 U.S. 1, 9 [112 S.Ct. 995, 117 L.Ed.2d 156], internal citation
omitted.)
• “[T]here is a two-pronged test for evaluating a claim for deliberate indifference
to a serious medical need: First, the plaintiff must show a serious medical need
by demonstrating that failure to treat a prisoner’s condition could result in
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further significant injury or the unnecessary and wanton infliction of pain.
Second, the plaintiff must show the defendant’s response to the need was
deliberately indifferent. This second prong . . . is satisfied by showing (a) a
purposeful act or failure to respond to a prisoner’s pain or possible medical need
and (b) harm caused by the indifference.” (Akhtar v. Mesa (9th Cir. 2012) 698
F.3d 1202, 1213.)
• “Where a plaintiff alleges systemwide deficiencies, ‘policies and practices of
statewide and systematic application [that] expose all inmates in [the prison’s]
custody to a substantial risk of serious harm,’ we assess the claim through a two-
pronged inquiry. The first, objective, prong requires that the plaintiff show that
the conditions of the prison pose ‘a substantial risk of serious harm.’ The second,
subjective, prong requires that the plaintiff show that a prison official was
deliberately indifferent by being ‘aware of the facts from which the inference
could be drawn that a substantial risk of serious harm exists,’ and ‘also
draw[ing] the inference.’ ” (Disability Rights Montana, Inc., supra, 930 F.3d at
p. 1097, internal citations and footnote omitted.)
• “A prison medical official who fails to provide needed treatment because he
lacks the necessary resources can hardly be said to have intended to punish the
inmate. The challenged instruction properly advised the jury to consider the
resources [defendant] had available in determining whether he was deliberately
indifferent.” (Peralta, supra, 744 F.3d at p. 1084.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
excessive force and conditions of confinement cases, we instruct juries to defer
to prison officials’ judgments in adopting and executing policies needed to
preserve discipline and maintain security. [¶] Such deference is generally absent
from serious medical needs cases, however, where deliberate indifference ‘can
typically be established or disproved without the necessity of balancing
competing institutional concerns for the safety of prison staff or other inmates.’ ”
(Mendiola-Martinez v. Arpaio (9th Cir. 2016) 836 F.3d 1239, 1254, internal
citations omitted.)
• “[T]rial judges in prison medical care cases should not instruct jurors to defer to
the adoption and implementation of security-based prison policies, unless a
party’s presentation of the case draws a plausible connection between a security-
based policy or practice and the challenged medical care decision.” (Chess v.
Dovey (9th Cir. 2015) 790 F.3d 961, 962.)
• “Although claims by pretrial detainees arise under the Fourteenth Amendment
and claims by convicted prisoners arise under the Eighth Amendment, our cases
do not distinguish among pretrial and postconviction detainees for purposes of
the excessive force, conditions of confinement, and medical care deference
instructions.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1182, fn. 4.)
• “We now turn to the second prong of the inquiry, whether the defendants were
deliberately indifferent. This is not a case in which there is a difference of
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medical opinion about which treatment is best for a particular patient. Nor is this
a case of ordinary medical mistake or negligence. Rather, the evidence is
undisputed that [plaintiff] was denied treatment for his monocular blindness
solely because of an administrative policy, even in the face of medical
recommendations to the contrary. A reasonable jury could find that [plaintiff] was
denied surgery, not because it wasn’t medically indicated, not because his
condition was misdiagnosed, not because the surgery wouldn’t have helped him,
but because the policy of the [defendant] is to require an inmate to endure
reversible blindness in one eye if he can still see out of the other. This is the
very definition of deliberate indifference.” (Colwell, supra, 763 F.3d at p. 1068.)
• “[C]laims for violations of the right to adequate medical care ‘brought by
pretrial detainees against individual defendants under the Fourteenth
Amendment’ must be evaluated under an objective deliberate indifference
standard. Based thereon, the elements of a pretrial detainee’s medical care claim
against an individual defendant under the due process clause of the Fourteenth
Amendment are: (i) the defendant made an intentional decision with respect to
the conditions under which the plaintiff was confined; (ii) those conditions put
the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did
not take reasonable available measures to abate that risk, even though a
reasonable official in the circumstances would have appreciated the high degree
of risk involved—making the consequences of the defendant’s conduct obvious;
and (iv) by not taking such measures, the defendant caused the plaintiff’s
injuries. ‘With respect to the third element, the defendant’s conduct must be
objectively unreasonable, a test that will necessarily “turn[ ] on the facts and
circumstances of each particular case.” ’ The ‘ “mere lack of due care by a state
official” does not deprive an individual of life, liberty, or property under the
Fourteenth Amendment.’ Thus, the plaintiff must ‘prove more than negligence
but less than subjective intent—something akin to reckless disregard.’ ” (Gordon
v. County of Orange (9th Cir. 2018) 888 F.3d 1118, 1124–1125, internal citations
omitted.)
• “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition
could result in further significant injury or the ‘unnecessary and wanton infliction
of pain.’ The ‘routine discomfort’ that results from incarceration and which is
‘part of the penalty that criminal offenders pay for their offenses against society’
does not constitute a ‘serious’ medical need.” (Doty v. County of Lassen (9th Cir.
1994) 37 F.3d 540, 546, internal citations and footnote omitted.)
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 244
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial,
Ch. 2E-10, Special Jurisdictional Limitations—Eleventh Amendment As Limitation
On Actions Against States, ¶ 2:4923 (The Rutter Group)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State Law-
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Prisons, ¶ 11.09 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.15 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.183 (Matthew
Bender)
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3042. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Excessive Force (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] used excessive force
against [him/her/nonbinary pronoun]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] used force against [name of plaintiff];
2. That the force used was excessive;
3. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s use of excessive force was a substantial
factor in causing [name of plaintiff]’s harm.
5. Force is excessive if it is used maliciously and sadistically to cause
harm. In deciding whether excessive force was used, you should
consider, among other factors, the following:
(a) The need for the use of force;
(b) The relationship between the need and the amount of force
that was used;
(c) The extent of injury inflicted;
(d) The extent of the threat to the safety of staff and inmates, as
reasonably perceived by the responsible officials on the basis of
the facts known to them; [and]
(e) Any efforts made to temper the severity of a forceful response;
[and]
(f) [Insert other relevant factor.]
Force is not excessive if it is used in a good-faith effort to protect the
safety of inmates, staff, or others, or to maintain or restore discipline.
New September 2003; Revised June 2010; Renumbered from CACI No. 3010
December 2010; Renumbered from CACI No. 3013 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
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There is law suggesting that the jury should give deference to prison officials in the
adoption and execution of policies and practices that in their judgment are needed to
preserve discipline and to maintain internal security in a prison. This principle is
covered in the final sentence by the term “good faith.”
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d 920].)
• “The Constitution ‘does not mandate comfortable prisons,’ but neither does it
permit inhumane ones, and it is now settled that ‘the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.’ In its prohibition of ‘cruel and unusual
punishments,’ the Eighth Amendment places restraints on prison officials, who
may not, for example, use excessive physical force against prisoners. The
Amendment also imposes duties on these officials, who must provide humane
conditions of confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’ ” (Farmer v. Brennan (1994)
511 U.S. 825, 832 [114 S.Ct. 1970, 128 L.Ed.2d 811], internal citations omitted.)
• “[A]pplication of the deliberate indifference standard is inappropriate when
authorities use force to put down a prison disturbance. Instead, ‘the question
whether the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on “whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the very purpose of
causing harm.” ’ ” (Hudson v. McMillian (1992) 503 U.S. 1, 6 [112 S.Ct. 995,
117 L.Ed.2d 156], internal citations omitted.)
• “[W]e hold that whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments Clause, the
core judicial inquiry is that set out in Whitley: whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” (Hudson, supra, 503 U.S. at pp. 6–7, internal citations omitted.)
• “[E]xcessive force under the Eighth Amendment does not require proof that an
officer enjoyed or otherwise derived pleasure from his or her use of force.”
(Hoard v. Hartman (9th Cir. 2018) 904 F.3d 780, 782.)
• “[T]here is ample evidence here that the Supreme Court did not intend its use of
‘maliciously and sadistically’ . . . to work a substantive change in the law on
excessive force beyond requiring intent to cause harm. Chief among this
evidence is the fact that the Supreme Court has never addressed ‘maliciously and
sadistically’ separately from the specific intent to cause harm. It has even, on one
occasion, omitted any mention of ‘maliciously and sadistically’ altogether and
simply explained that ‘a purpose to cause harm is needed for Eighth Amendment
liability in a [prison] riot case.’ ” (Hoard, supra, 904 F.3d at p. 789.)
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• “Whether the prison disturbance is a riot or a lesser disruption, corrections
officers must balance the need ‘to maintain or restore discipline’ through force
against the risk of injury to inmates. Both situations may require prison officials
to act quickly and decisively. Likewise, both implicate the principle that ‘prison
administrators . . . should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security.’ ”
(Hudson, supra, 503 U.S. at p. 6, internal citations omitted.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
excessive force . . . cases, we instruct juries to defer to prison officials’
judgments in adopting and executing policies needed to preserve discipline and
maintain security.” (Mendiola-Martinez v. Arpaio (9th Cir. 2016) 836 F.3d 1239,
1254, internal citations omitted.)
• “[T]his Court rejected the notion that ‘significant injury’ is a threshold
requirement for stating an excessive force claim. . . . ‘When prison officials
maliciously and sadistically use force to cause harm,’ . . . ‘contemporary
standards of decency always are violated . . . whether or not significant injury is
evident. Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less than some
arbitrary quantity of injury.’ ” (Wilkins v. Gaddy (2010) 559 U.S. 34, 37 [130
S.Ct. 1175, 175 L.Ed.2d 995].)
• “This is not to say that the ‘absence of serious injury’ is irrelevant to the Eighth
Amendment inquiry. ‘[T]he extent of injury suffered by an inmate is one factor
that may suggest “whether the use of force could plausibly have been thought
necessary” in a particular situation.’ The extent of injury may also provide some
indication of the amount of force applied. . . . [N]ot ‘every malevolent touch by
a prison guard gives rise to a federal cause of action.’ ‘The Eighth Amendment’s
prohibition of “cruel and unusual” punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the conscience of mankind.’ An inmate
who complains of a ‘push or shove’ that causes no discernible injury almost
certainly fails to state a valid excessive force claim. . . . [¶] Injury and force,
however, are only imperfectly correlated, and it is the latter that ultimately
counts.” (Wilkins, supra, 559 U.S. at pp. 37–38, original italics, internal citations
omitted.)
• “ ‘[S]uch factors as the need for the application of force, the relationship
between the need and the amount of force that was used, [and] the extent of
injury inflicted,’ are relevant to that ultimate determination. From such
considerations inferences may be drawn as to whether the use of force could
plausibly have been thought necessary, or instead evinced such wantonness with
respect to the unjustified infliction of harm as is tantamount to a knowing
willingness that it occur. But equally relevant are such factors as the extent of
the threat to the safety of staff and inmates, as reasonably perceived by the
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responsible officials on the basis of the facts known to them, and any efforts
made to temper the severity of a forceful response.” (Whitley v. Albers (1986)
475 U.S. 312, 321 [106 S.Ct. 1078, 89 L.Ed.2d 251], internal citations omitted.)
• “ ‘[T]he appropriate standard for a pretrial detainee’s excessive force claim
[under the Fourteenth Amendment] is solely an objective one.’ In contrast, a
convicted prisoner’s excessive force claim under the Eighth Amendment requires
a subjective inquiry into ‘whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.’ ”
(Rodriguez v. County of L.A. (9th Cir. 2018) 891 F.3d 776, 788, internal citation
omitted.)
• “Although claims by pretrial detainees arise under the Fourteenth Amendment
and claims by convicted prisoners arise under the Eighth Amendment, our cases
do not distinguish among pretrial and postconviction detainees for purposes of
the excessive force, conditions of confinement, and medical care deference
instructions.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1182, fn. 4.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v.
County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.01 (Matthew Bender)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶ 11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.70 (Matthew Bender)
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3043. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Deprivation of Necessities (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] subjected
[him/her/nonbinary pronoun] to prison conditions that deprived [him/her/
nonbinary pronoun] of basic rights. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] was imprisoned under conditions that
deprived [him/her/nonbinary pronoun] of [describe deprivation, e.g.,
clothing];
2. That this deprivation was sufficiently serious in that it denied
[name of plaintiff] a minimal necessity of life;
3. That [name of defendant]’s conduct created a substantial risk of
serious harm to [name of plaintiff]’s health or safety;
4. That [name of defendant] knew that [his/her/nonbinary pronoun]
conduct created a substantial risk of serious harm to [name of
plaintiff]’s health or safety;
5. That there was no reasonable justification for the deprivation;
6. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Whether the risk was obvious is a factor that you may consider in
determining whether [name of defendant] knew of the risk.
New June 2015; Revised May 2020
Directions for Use
Give this instruction in a prisoner case involving deprivation of something serious.
(See Thomas v. Ponder (9th Cir. 2010) 611 F.3d 1144, 1150–1151.) For an
instruction involving the creation of a risk, see CACI No. 3040, Violation of
Prisoner’s Federal Civil Rights—Eighth Amendment—Substantial Risk of Serious
Harm. For an instruction on deprivation of medical care, see CACI No. 3041,
Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care.
In prison-conditions cases, the inmate must show that the defendant was deliberately
indifferent to the inmate’s health or safety. (Farmer v. Brennan (1994) 511 U.S. 825,
834 [114 S.Ct. 1970, 128 L.Ed.2d 811].) “Deliberate indifference” involves a two-
part inquiry. First, the inmate must show that the prison officials were aware of a
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substantial risk of serious harm to the inmate’s health or safety. Second, the inmate
must show that the prison officials had no reasonable justification for the conduct, in
spite of that risk. (Thomas, supra, 611 F.3d at p. 1150.) Elements 4 and 5 express
the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the wording
of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section 1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475, 125
L.Ed.2d 22].)
• “Prison officials have a duty to ensure that prisoners are provided adequate
shelter, food, clothing, sanitation, medical care, and personal safety.” (Johnson v.
Lewis (9th Cir. 2000) 217 F.3d 726, 731, internal citations omitted.)
• “[E]xtreme deprivations are required to make out a conditions-of-confinement
claim. Because routine discomfort is ‘part of the penalty that criminal offenders
pay for their offenses against society,’ ‘only those deprivations denying “the
minimal civilized measure of life’s necessities” are sufficiently grave to form the
basis of an Eighth Amendment violation.’ ” (Hudson v. McMillian (1992) 503
U.S. 1, 9 [112 S.Ct. 995, 117 L.Ed.2d 156], internal citations omitted.)
• “[A] prison official violates the Eighth Amendment only when two requirements
are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious,’
a prison official’s act or omission must result in the denial of ‘the minimal
civilized measure of life’s necessities,’ . . . .” (Farmer, supra, 511 U.S. at p.
834, internal citations omitted.)
• “ ‘[O]nly the unnecessary and wanton infliction of pain implicates the Eighth
Amendment.’ To violate the Cruel and Unusual Punishments Clause, a prison
official must have a ‘sufficiently culpable state of mind.’ In prison-conditions
cases that state of mind is one of ‘deliberate indifference’ to inmate health or
safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations omitted.)
• “[A]n inmate seeking to prove an Eighth Amendment violation must ‘objectively
show that he was deprived of something “sufficiently serious,” ’ and ‘make a
subjective showing that the deprivation occurred with deliberate indifference to
the inmate’s health or safety.’ The second step, showing ‘deliberate indifference,’
involves a two part inquiry. First, the inmate must show that the prison officials
were aware of a ‘substantial risk of serious harm’ to an inmate’s health or safety.
This part of our inquiry may be satisfied if the inmate shows that the risk posed
by the deprivation is obvious. Second, the inmate must show that the prison
officials had no ‘reasonable’ justification for the deprivation, in spite of that
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risk.” (Thomas, supra, 611 F.3d at p. 1150, footnote and internal citations
omitted.)
• “Next, the inmate must ‘make a subjective showing that the deprivation occurred
with deliberate indifference to the inmate’s health or safety.’ To satisfy this
subjective component of deliberate indifference, the inmate must show that
prison officials ‘kn[e]w[] of and disregard[ed]’ the substantial risk of harm, but
the officials need not have intended any harm to befall the inmate; ‘it is enough
that the official acted or failed to act despite his knowledge of a substantial risk
of serious harm.’ ” (Lemire v. Cal. Dep’t of Corr. & Rehab. (9th Cir. 2013) 726
F.3d 1062, 1074, internal citations omitted.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “The precise role of legitimate penological interests is not entirely clear in the
context of an Eighth Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley, 482 U.S. 78, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987), which requires only a reasonable relationship
to a legitimate penological interest to justify prison regulations, does not apply to
Eighth Amendment claims. The existence of a legitimate penological justification
has, however, been used in considering whether adverse treatment is sufficiently
gratuitous to constitute punishment for Eighth Amendment purposes.” (Grenning
v. Miller-Stout (9th Cir. 2014) 739 F.3d 1235, 1240.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
. . . conditions of confinement cases, we instruct juries to defer to prison
officials’ judgments in adopting and executing policies needed to preserve
discipline and maintain security.” (Mendiola-Martinez v. Arpaio (9th Cir. 2016)
836 F.3d 1239, 1254, internal citation omitted.)
• “However, our precedent should not be misread to suggest that jail officials are
automatically entitled to deference instructions in conditions of confinement or
excessive force cases brought by prisoners, or § 1983 actions brought by former
inmates. We have long recognized that a jury need not defer to prison officials
where the plaintiff produces substantial evidence showing that the jail’s policy or
practice is an unnecessary, unjustified, or exaggerated response to the need for
prison security.” (Shorter v. Baca (9th Cir. 2018) 895 F.3d 1176, 1183, internal
citations omitted.)
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• “Although claims by pretrial detainees arise under the Fourteenth Amendment
and claims by convicted prisoners arise under the Eighth Amendment, our cases
do not distinguish among pretrial and postconviction detainees for purposes of
the excessive force, conditions of confinement, and medical care deference
instructions.” (Shorter, supra, 895 F.3d at p. 1182, fn. 4.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 888
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶ 11.02 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
18 California Points and Authorities, Ch. 196, Public Entities, § 196.183 (Matthew
Bender)
3044–3045. Reserved for Future Use
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3046. Violation of Pretrial Detainee’s Federal Civil
Rights—Fourteenth Amendment—Medical Care and Conditions of
Confinement (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] failed to provide [him/
her/nonbinary pronoun] [safe conditions of confinement/needed medical
care] in violation of [his/her/nonbinary pronoun] constitutional rights. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] made an intentional decision regarding
the [conditions of confinement/denial of needed medical care];
2. That the [conditions of confinement/denial of needed medical
care] put [name of plaintiff] at substantial risk of serious harm;
3. That [name of defendant] did not take reasonable available
measures to prevent or reduce the risk of serious harm, even
though a reasonable officer under the same or similar
circumstances would have understood the high degree of risk
involved;
4. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New November 2021
Directions for Use
Give this instruction in a case involving a pretrial detainee’s conditions of
confinement, including access to medical care. (See Gordon v. County of Orange
(9th Cir. 2018) 888 F.3d 1118, 1124–1125.)
The instruction may be modified for use in a failure to protect case. (See Castro v.
County of Los Angeles (9th Cir. 2016) 833 F.3d 1060 (en banc).) The instruction
may also be modified to specify the condition of confinement at issue. For example,
if the plaintiff claims that the defendant delayed or intentionally interfered with
needed medical treatment, it may not be sufficiently clear to describe the defendant’s
conduct in the introductory paragraph and in elements 1 and 2 as a denial of needed
medical care.
Sources and Authority
• Deprivation of Civil Rights. Title 42 United States Code section 1983.
• “Inmates who sue prison officials for injuries suffered while in custody may do
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so under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if
not yet convicted, under the Fourteenth Amendment’s Due Process Clause.
Under both clauses, the plaintiff must show that the prison officials acted with
‘deliberate indifference.’ ” (Castro, supra, 833 F.3d at pp. 1067–1068, internal
citation omitted.)
• “[W]e hold that claims for violations of the right to adequate medical care
‘brought by pretrial detainees against individual defendants under the Fourteenth
Amendment’ must be evaluated under an objective deliberate indifference
standard.” (Gordon, supra, 888 F.3d at pp. 1124–1125.)
• “[C]laims for violations of the right to adequate medical care ‘brought by
pretrial detainees against individual defendants under the Fourteenth
Amendment’ must be evaluated under an objective deliberate indifference
standard. Based thereon, the elements of a pretrial detainee’s medical care claim
against an individual defendant under the due process clause of the Fourteenth
Amendment are: (i) the defendant made an intentional decision with respect to
the conditions under which the plaintiff was confined; (ii) those conditions put
the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did
not take reasonable available measures to abate that risk, even though a
reasonable official in the circumstances would have appreciated the high degree
of risk involved-making the consequences of the defendant’s conduct obvious;
and (iv) by not taking such measures, the defendant caused the plaintiff’s
injuries. ‘With respect to the third element, the defendant’s conduct must be
objectively unreasonable, a test that will necessarily “turn[ ] on the facts and
circumstances of each particular case.” ’ The ‘ “mere lack of due care by a state
official” does not deprive an individual of life, liberty, or property under the
Fourteenth Amendment.’ Thus, the plaintiff must ‘prove more than negligence
but less than subjective intent-something akin to reckless disregard.’ ” (Gordon,
supra, 888 F.3d at pp. 1124–1125, internal citations omitted.)
• “Our cases make clear that prison officials violate the Constitution when they
‘deny, delay or intentionally interfere’ with needed medical treatment. The same
is true when prison officials choose a course of treatment that is ‘medically
unacceptable under the circumstances.’ ” (Sandoval v. County of San Diego (9th
Cir. 2021) 985 F.3d 657, 679.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 356
7 Civil Rights Actions, Ch. F10, Prisoner’s Rights (Matthew Bender)
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.16 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3047–3049. Reserved for Future Use
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3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] for exercising a constitutional right. To establish
retaliation, [name of plaintiff] must prove all of the following:
1. That [he/she/nonbinary pronoun] was engaged in a constitutionally
protected activity[, which I will determine after you, the jury,
decide certain facts];
[2. That [name of defendant] did not have probable cause for the
[arrest/prosecution][, which I will determine after you, the jury,
decide certain facts];]
3. That [name of defendant] [specify alleged retaliatory conduct];
4. That [name of plaintiff]’s constitutionally protected activity was a
substantial or motivating factor for [name of defendant]’s acts;
5. That [name of defendant]’s acts would likely have deterred a
reasonable person from [specify protected activity, e.g., filing a
lawsuit]; and
6. That [name of plaintiff] was harmed as a result of [name of
defendant]’s conduct.
The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 1 [and element 2] above.
[But before I can do so, you must decide whether [name of plaintiff] has
proven the following: [list all factual disputes that must be resolved by the
jury.].]
[or]
[The court has determined that by [specify conduct], [name of plaintiff]
was exercising [his/her/nonbinary pronoun] constitutionally protected right
of [insert right, e.g., privacy].]
[or]
[The court has determined that [name of defendant] did not have
probable cause for the [arrest/prosecution].]
New June 2010; Revised December 2010; Renumbered from CACI No. 3016 and
Revised December 2012; Revised June 2013, May 2020, May 2021, November 2021
Directions for Use
Give this instruction along with CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements, if the claimed civil rights violation
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is retaliation for exercising constitutionally protected rights, including exercise of
free speech rights as a private citizen. For a claim by a public employee who alleges
that they suffered an adverse employment action in retaliation for their speech on an
issue of public concern, see CACI No. 3053, Retaliation for Exercise of Free
Speech Rights—Public Employee—Essential Factual Elements.
The retaliation should be alleged generally in element 1 of CACI No. 3000. The
constitutionally protected activity refers back to the right alleged to have been
violated in element 3 of CACI No. 3000.
Element 2 applies only in retaliatory arrest and prosecution cases. Omit element 2 if
the retaliation alleged is not based on an arrest or prosecution.
Whether plaintiff was engaged in a constitutionally protected activity and, if
applicable, whether probable cause for arrest or prosecution was absent (or whether
the no-probable-cause requirement does not apply because of an exception) will
usually have been resolved by the court as a matter of law before trial. (See Nieves
v. Bartlett (2019) ___ U.S. ___ [139 S.Ct. 1715, 1724, 1727, 204 L.Ed.2d 1]
[requiring a plaintiff to plead and prove the absence of probable cause for arrest but
stating an exception to the no-probable-cause requirement “when a plaintiff presents
objective evidence that he was arrested when otherwise similarly situated individuals
not engaged in the same sort of protected speech had not been”].) If there is a
question of fact that the jury must resolve, include the optional bracketed language
with element 1 and/or element 2, and give the first bracketed option of the final
paragraph, identifying with specificity all disputed factual issues the jury must
resolve for the court to determine the contested element or elements. If the court has
determined element 1 or element 2, omit the optional bracketed language of the
element and instruct the jury that the element has been determined as a matter of
law by giving the second and/or third optional sentence(s) in the final paragraph.
If there are contested issues of fact regarding the exception to the no-probable-cause
requirement, this instruction may be augmented to include the specific factual
findings necessary for the court to determine whether the exception applies.
The plaintiff must show that the defendant acted with a retaliatory motive and that
the motive was a “but for” cause of the plaintiff’s injury, i.e., that the retaliatory
action would not have been taken absent the retaliatory motive. (See Nieves, supra,
139 S.Ct. at p. 1722.) A plaintiff may prove causal connection with circumstantial
evidence but establishing a causal connection between a defendant’s animus and a
plaintiff’s injury will depend on the type of retaliation case. (Id. at pp. 1722–1723
[distinguishing straightforward cases from more complex cases].)
If the defendant claims that the response to the plaintiff’s constitutionally protected
activity was prompted by a legitimate reason, the defendant may attempt to persuade
the jury that the defendant would have taken the same action even in the absence of
the alleged impermissible, retaliatory reason. See CACI No. 3055, Rebuttal of
Retaliatory Motive. (Id. at p. 1727.)
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Sources and Authority
• “Where, as here, the plaintiff claims retaliation for exercising a constitutional
right, the majority of federal courts require the plaintiff to prove that (1) he or
she was engaged in constitutionally protected activity, (2) the defendant’s
retaliatory action caused the plaintiff to suffer an injury that would likely deter a
person of ordinary firmness from engaging in that protected activity, and (3) the
retaliatory action was motivated, at least in part, by the plaintiff’s protected
activity.” (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049,
1062–1063 [99 Cal.Rptr.3d 661].)
• “[A]ctions that are otherwise proper and lawful may nevertheless be actionable if
they are taken in retaliation against a person for exercising his or her
constitutional rights.” (Tichinin, supra, 177 Cal.App.4th at p. 1084.)
• “The plaintiff must show that the retaliation was a substantial or motivating
factor behind the [arrest], and, if that showing is made, the defendant can prevail
only by showing that the [arrest] would have been initiated without respect to
retaliation.” (Nieves, supra, 139 S.Ct. at p. 1725, internal citation omitted.)
• “To state a First Amendment retaliation claim, a plaintiff must plausibly allege
‘that (1) he was engaged in a constitutionally protected activity, (2) the
defendant’s actions would chill a person of ordinary firmness from continuing to
engage in the protected activity and (3) the protected activity was a substantial
or motivating factor in the defendant’s conduct.’ To ultimately ‘prevail on such a
claim, a plaintiff must establish a “causal connection” between the government
defendant’s “retaliatory animus” and the plaintiff’s “subsequent injury.”
Specifically, a plaintiff must show that the defendant’s retaliatory animus was ‘a
“but-for” cause, meaning that the adverse action against the plaintiff would not
have been taken absent the retaliatory motive.’ ” (Capp v. County of San Diego
(9th Cir. 2019) 940 F.3d 1046, 1053, internal citations omitted.)
• “For a number of retaliation claims, establishing the causal connection between a
defendant’s animus and a plaintiff’s injury is straightforward. Indeed, some of
our cases in the public employment context ‘have simply taken the evidence of
the motive and the discharge as sufficient for a circumstantial demonstration that
the one caused the other,’ shifting the burden to the defendant to show he would
have taken the challenged action even without the impermissible motive. But the
consideration of causation is not so straightforward in other types of retaliation
cases.” Nieves, supra, 139 S.Ct. at pp. 1722–1723.)
• “To demonstrate retaliation in violation of the First Amendment, [the plaintiff]
must ultimately prove first that [defendant] took action that ‘would chill or
silence a person of ordinary firmness from future First Amendment activities.’ ”
(Skoog v. County of Clackamas (9th Cir. 2006) 469 F.3d 1221, 1231–1232,
footnote and citation omitted.)
• “The plaintiff pressing a retaliatory arrest claim must plead and prove the
absence of probable cause for the arrest.” (Nieves v. Bartlett (2019) ___ U.S. ___
[139 S.Ct. 1715, 1724, 204 L.Ed.2d 1].)
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• “[W]e conclude that the no-probable-cause requirement should not apply when a
plaintiff presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech
had not been.” (Nieves, supra, 139 S.Ct. at p. 1727.)
• “[T]he evidence of [plaintiff]’s alleged injuries, if believed, is sufficient to
support a finding that the retaliatory action against him would deter a person of
ordinary firmness from exercising his or her First Amendment rights. [¶]
[Defendant] argues that plaintiff did not suffer any injury—i.e., [defendant]’s
action did not chill [plaintiff]’s exercise of his rights—because he continued to
litigate against [defendant]. However, that [plaintiff] persevered despite
[defendant]’s action is not determinative. To reiterate, in the context of a claim
of retaliation, the question is not whether the plaintiff was actually deterred but
whether the defendant’s actions would have deterred a person of ordinary
firmness.” (Tichinin, supra, 177 Cal.App.4th at p. 1082.)
• “Intent to inhibit speech, which ‘is an element of the [retaliation] claim,’ can be
demonstrated either through direct or circumstantial evidence.” (Mendocino
Envtl. Ctr. v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300–1301,
internal citation omitted.)
• “[Defendant] may avoid liability if he shows that a ‘final decision maker’s
independent investigation and termination decision, responding to a biased
subordinate’s initial report of misconduct, . . . negate[s] any causal link’
between his retaliatory motive and the adverse employment action. This is
because a final decision maker’s wholly independent investigation and decision
establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ ” (Karl v. City of Mountlake Terrace (9th Cir. 2012)
678 F.3d 1062, 1072–1073, internal citation omitted.)
• “While the scope, severity and consequences of [their] actions are belittled by
defendants, we have cautioned that ‘a government act of retaliation need not be
severe . . . [nor] be of a certain kind’ to qualify as an adverse action.” (Marez v.
Bassett (9th Cir. 2010) 595 F.3d 1068, 1075.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 894,
895, 978
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity
Laws, § 40.26 (Matthew Bender)
3 Civil Rights Actions, Ch. 17, Discrimination in Federally Assisted Programs,
¶ 17.24B (Matthew Bender)
4 Civil Rights Actions, Ch. 21A, Employment Discrimination Based on Race, Color,
Religion, Sex, or National Origin, ¶ 21.22(f) (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)
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3051. Unlawful Removal of Child From Parental Custody Without
a Warrant—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] wrongfully removed
[name of plaintiff]’s child from [his/her/nonbinary pronoun] parental
custody because [name of defendant] did not have a warrant. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] removed [name of plaintiff]’s child from
[his/her/nonbinary pronoun] parental custody without a warrant;
2. That [name of defendant] was performing or purporting to
perform [his/her/nonbinary pronoun] official duties;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2016
Directions for Use
This instruction is a variation on CACI No. 3021, Unlawful Arrest by Peace Offıcer
Without a Warrant—Essential Factual Elements, and CACI No. 3023, Unreasonable
Search or Seizure—Search or Seizure Without a Warrant—Essential Factual
Elements, in which the warrantless act is the removal of a child from parental
custody rather than an arrest or search. This instruction asserts a parent’s due
process right to familial association under the Fourteenth Amendment. It may be
modified to assert or include the child’s right under the Fourth Amendment to be
free of a warrantless seizure. (See Arce v. Childrens Hospital Los Angeles (2012)
211 Cal.App.4th 1455, 1473–1474 [150 Cal.Rptr.3d 735].)
Warrantless removal is a constitutional violation unless the authorities possess
information at the time of the seizure that establishes reasonable cause to believe
that the child is in imminent danger of serious bodily injury and that the scope of
the intrusion is reasonably necessary to avert that specific injury. (Arce, supra, 211
Cal.App.4th at p. 1473.) The committee believes that the defendant bears the burden
of proving imminent danger. (See Evid. Code, § 500 [“Except as otherwise provided
by law, a party has the burden of proof as to each fact the existence or nonexistence
of which is essential to the claim for relief or defense that he is asserting.”]; cf.
Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091, 80 L.Ed.2d 732]
[“Before agents of the government may invade the sanctity of the home, the burden
is on the government to demonstrate exigent circumstances that overcome the
presumption of unreasonableness that attaches to all warrantless home entries.”].)
CACI No. 3026, Affırmative Defense—Exigent Circumstances (to a warrantless
search), may be modified to respond to this claim.
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If the removal of the child was without a warrant and without exigent
circumstances, but later found to be justified by the court, damages are limited to
those caused by the procedural defect, not the removal. (See Watson v. City of San
Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)
Sources and Authority
• “ ‘ “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.’ [Citation.] ‘The Fourteenth
Amendment guarantees that parents will not be separated from their children
without due process of law except in emergencies.” This ‘right to family
association’ requires ‘[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes “reasonable cause
to believe that the child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that specific injury.”
[Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations
omitted.)
• “ ‘The Fourth Amendment also protects children from removal from their homes
[without prior judicial authorization] absent such a showing. [Citation.] Officials,
including social workers, who remove a child from its home without a warrant
must have reasonable cause to believe that the child is likely to experience
serious bodily harm in the time that would be required to obtain a warrant.’
Because ‘the same legal standard applies in evaluating Fourth and Fourteenth
Amendment claims for the removal of children,” we may “analyze [the claims]
together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473–1474.)
• “While the constitutional source of the parent’s and the child’s rights differ, the
tests under the Fourteenth Amendment and the Fourth Amendment for when a
child may be seized without a warrant are the same. The Constitution requires an
official separating a child from its parents to obtain a court order unless the
official has reasonable cause to believe the child is in ‘imminent danger of
serious bodily injury.’ Seizure of a child is reasonable also where the official
obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d 990,
1000, internal citations omitted.)
• “This requirement ‘balance[s], on the one hand, the need to protect children
from abuse and neglect and, on the other, the preservation of the essential
privacy and liberty interests that families are guaranteed under both the Fourth
and Fourteenth Amendments of our Constitution.’ ” (Demaree v. Pederson (9th
Cir. 2018) 880 F.3d 1066, 1074.)
• “[W]hether an official had ‘reasonable cause to believe exigent circumstances
existed in a given situation . . . [is a] “question[] of fact to be determined by a
jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)
• “Under the Fourth Amendment, government officials are ordinarily required to
obtain prior judicial authorization before removing a child from the custody of
her parent. However, officials may seize a child without a warrant ‘if the
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information they possess at the time of the seizure is such as provides reasonable
cause to believe that the child is in imminent danger of serious bodily injury and
that the scope of the intrusion is reasonably necessary to avert that specific
injury.’ ” (Kirkpatrick v. Cnty. of Washoe (9th Cir. 2016) 843 F.3d 784, 790 (en
banc).)
• “[I]t does not matter whether the warrant could be obtained in hours or days.
What matters is whether there is an identifiable risk of serious harm or abuse
during whatever the delay period is.” (Demaree, supra, 880 F.3d at p. 1079,
original italics.)
• “The parental right secured by the Fourteenth Amendment ‘is not reserved for
parents with full legal and physical custody.’ At the same time, however,
‘[p]arental rights do not spring full-blown from the biological connection
between parent and child.’ Judicially enforceable interests arising under the
Fourteenth Amendment ‘require relationships more enduring,’ which reflect some
assumption ‘of parental responsibility.’ It is ‘[w]hen an unwed father
demonstrates a full commitment to the responsibilities of parenthood by coming
forward to participate in the rearing of his child,’ that ‘his interest in personal
contact with his child acquires substantial protection under the due process
clause.’ Until then, a person with only potential parental rights enjoys a liberty
interest in the companionship, care, and custody of his children that is
‘unambiguously lesser in magnitude.’ ” (Kirkpatrick, supra, 843 F.3d at p. 789.)
• “[A] child is seized for purposes of the Fourth and Fourteenth Amendments
when a representative of the state takes action causing a child to be detained at a
hospital as part of a child abuse investigation, such that a reasonable person in
the same position as the child’s parent would believe that she cannot take her
child home.” (Jones, supra, 802 F.3d at p. 1001.)
• “An official ‘cannot seize children suspected of being abused or neglected unless
reasonable avenues of investigation are first pursued.’ Further, because the ‘scope
of the intrusion’ must be ‘reasonably necessary to avert’ a specific injury, the
intrusion cannot be longer than necessary to avert the injury.” (Keates v. Koile
(9th Cir. 2018) 883 F.3d 1228, 1237, internal citations omitted.)
• “[A] jury is needed to determine what a reasonable parent in the [plaintiffs’]
position would have believed and whether [defendant]’s conduct amounted to a
seizure.” (Jones, supra, 802 F.3d at p. 1002.)
• “In sum, although we do not dispute that Shaken Baby Syndrome is a serious,
life-threatening injury, we disagree with the County defendants’ assertion that a
child may be detained without prior judicial authorization based solely on the
fact that he or she has suffered a serious injury. Rather, the case law
demonstrates that the warrantless detention of a child is improper unless there is
“specific, articulable evidence” that the child would be placed at imminent risk
of serious harm absent an immediate interference with parental custodial rights.”
(Arce, supra, 211 Cal.App.4th at p. 1481.)
• “[I]n cases where ‘a deprivation is justified but procedures are deficient,
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whatever distress a person feels may be attributable to the justified deprivation
rather than to deficiencies in procedure.’ In such cases, . . . a plaintiff must
‘convince the trier of fact that he actually suffered distress because of the denial
of procedural due process itself.’ ” (Watson, supra, 800 F.3d at p. 1139, internal
citation omitted; see Carey v. Piphus (1978) 435 U.S. 247, 263 [98 S.Ct. 1042,
55 L.Ed.2d 252].)
• “Lack of health insurance . . . does not provide a reasonable cause to believe a
child is in imminent danger.” (Keates, supra, 883 F.3d at p. 1237.)
• “[B]arring a reasonable concern that material physical evidence might dissipate
. . . or that some urgent medical problem exists requiring immediate medical
attention, the state is required to notify parents and to obtain judicial approval
before children are subjected to investigatory physical examinations.” (Mann v.
Cty. of San Diego (9th Cir. 2018) 907 F.3d 1154, 1161.)
Secondary Sources
3 Civil Rights Actions, Ch. 12B, Deprivation of Rights Under Color of State
Law—Family Relations, ¶ 12B.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.29 et seq. (Matthew Bender)
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3052. Use of Fabricated Evidence—Essential Factual Elements (42
U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] deliberately fabricated
evidence against [him/her/nonbinary pronoun], and that as a result of this
evidence being used against [him/her/nonbinary pronoun],
[he/she/nonbinary pronoun] was deprived of [his/her/nonbinary pronoun]
[specify right, privilege, or immunity secured by the Constitution, e.g.,
liberty] without due process of law. In order to establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] [specify fabricated evidence, e.g., informed
the district attorney that plaintiff’s DNA was found at the scene of the
crime];
2. That this [e.g., statement] was not true;
3. That [name of defendant] knew that the [e.g., statement] was not
true; and
4. That because of [name of defendant]’s conduct, [name of plaintiff]
was deprived of [his/her/nonbinary pronoun] [e.g., liberty].
To decide whether there was a deprivation of rights because of the
fabrication, you must determine what would have happened if the [e.g.,
statement] had not been used against [name of plaintiff].
[Deprivation of liberty does not require that [name of plaintiff] have been
put in jail. Nor is it necessary that [he/she/nonbinary pronoun] prove that
[he/she/nonbinary pronoun] was wrongly convicted of a crime.]
New May 2017
Directions for Use
This instruction is for use if the plaintiff claims to have been deprived of a
constitutional or legal right based on false evidence. Give also CACI No. 3000,
Violation of Federal Civil Rights—In General—Essential Factual Elements.
What would have happened had the fabricated evidence not been presented (i.e.,
causation) is a question of fact. (Kerkeles v. City of San Jose (2011) 199
Cal.App.4th 1001, 1013 [132 Cal.Rptr.3d 143].)
Give the last optional paragraph if the alleged fabrication occurred in a criminal
case. It would appear that the use of fabricated evidence for prosecution may be a
constitutional violation even if the arrest was lawful or objectively reasonable. (See
Kerkeles, supra, 199 Cal.App.4th at pp. 1010–1012, quoting favorably Ricciuti v.
New York City Transit Authority (2d Cir. 1997) 124 F.3d 123, 130.)
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Sources and Authority
• “Substantive due process protects individuals from arbitrary deprivation of their
liberty by government.” (Costanich v. Dep’t of Soc. & Health Servs. (9th Cir.
2010) 627 F.3d 1101, 1110.)
• “[T]here is a clearly established constitutional due process right not to be
subjected to criminal charges on the basis of false evidence that was deliberately
fabricated by the government.” (Devereaux v. Abbey (9th Cir. 2001) 263 F.3d
1070, 1074–1075.)
• “In order to prevail on a judicial deception claim, a plaintiff must prove that ‘(1)
the defendant official deliberately fabricated evidence and (2) the deliberate
fabrication caused the plaintiff’s deprivation of liberty.’ ” (Keates v. Koile (9th
Cir. 2018) 883 F.3d 1228, 1240.)
• “To establish causation, [plaintiff] must raise a triable issue that the fabricated
evidence was the cause in fact and proximate cause of his injury. Like in any
proximate cause analysis, an intervening event may break the chain of causation
between the allegedly wrongful act and the plaintiff’s injury.” (Caldwell v. City
& County of San Francisco (9th Cir. 2018) 889 F.3d 1105, 1115, internal citation
omitted.)
• “A plaintiff can prove deliberate fabrication in several ways. Most basically, a
plaintiff can produce direct evidence of deliberate fabrication. Alternatively, a
plaintiff can produce circumstantial evidence related to a defendant’s motive.”
(Caldwell, supra, 889 F.3d at p. 1112, internal citations omitted.)
• “ ‘No arrest, no matter how lawful or objectively reasonable, gives an arresting
officer or his fellow officers license to deliberately manufacture false evidence
against an arrestee. To hold that police officers, having lawfully arrested a
suspect, are then free to fabricate false confessions at will, would make a
mockery of the notion that Americans enjoy the protection of due process of the
law and fundamental justice. Like a prosecutor’s knowing use of false evidence
to obtain a tainted conviction, a police officer’s fabrication and forwarding to
prosecutors of known false evidence works an unacceptable “corruption of the
truth-seeking function of the trial process.” [Citations.]’ ” (Ricciuti, supra, 124
F.3d at p. 130.)
• “Even if there was probable cause to arrest plaintiff, we cannot say as a matter
of law on the record before us that he would have been subjected to continued
prosecution and an unfavorable preliminary hearing without the use of the false
lab report and testimony derived from it. These are questions of fact which
defendants appear to concede are material to the issue of causation, and which
cannot be determined without weighing the evidence presented and conclusions
reached at the preliminary hearing. Defendants’ statement of undisputed facts
does not establish lack of causation as a matter of law.” (Kerkeles, supra, 199
Cal.App.4th at p. 1013.)
• “There is no authority for defendants’ argument that a due process claim cannot
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be established unless the false evidence is used to convict the plaintiff. . . .
[T]he right to be free from criminal charges, not necessarily the right to be free
from conviction, is a clearly established constitutional right supporting a section
1983 claim.” (Kerkeles, supra, 199 Cal.App.4th at p. 1010.)
• “There is no sound reason to impose a narrow restriction on a plaintiff’s case by
requiring incarceration as a sine qua non of a deprivation of a liberty interest.”
(Kerkeles, supra, 199 Cal.App.4th at p. 1011.)
• “[T]here is no such thing as a minor amount of actionable perjury or of false
evidence that is somehow permissible. Why? Because government perjury and
the knowing use of false evidence are absolutely and obviously irreconcilable
with the Fourteenth Amendment’s guarantee of Due Process in our courts.
Furthermore, the social workers’ alleged transgressions were not made under
pressing circumstances requiring prompt action, or those providing ambiguous or
conflicting guidance. There are no circumstances in a dependency proceeding
that would permit government officials to bear false witness against a parent.”
(Hardwick v. County of Orange (9th Cir. 2017) 844 F.3d 1112, 1119.)
• “[T]o the extent that [plaintiff] has raised a deliberate-fabrication-of-evidence
claim, he has not adduced or pointed to any evidence in the record that supports
it. For purposes of our analysis, we assume that, in order to support such a
claim, [plaintiff] must, at a minimum, point to evidence that supports at least one
of the following two propositions: (1) Defendants continued their investigation
of [plaintiff] despite the fact that they knew or should have known that he was
innocent; or (2) Defendants used investigative techniques that were so coercive
and abusive that they knew or should have known that those techniques would
yield false information.” (Devereaux, supra, 263 F.3d at p. 1076.)
• “[T]he Constitution prohibits the deliberate fabrication of evidence whether or
not the officer knows that the person is innocent. The district court erred by
granting judgment as a matter of law to Defendants because, in this case
involving direct evidence of fabrication, Plaintiff was not required to show that
[defendant] actually or constructively knew that he was innocent.” (Spencer v.
Peters (9th Cir. 2017) 857 F.3d 789, 800, internal citations omitted.)
• “The Devereaux test envisions an investigator whose unlawful motivation is
illustrated by her state of mind regarding the alleged perpetrator’s innocence, or
one who surreptitiously fabricates evidence by using coercive investigative
methods. These are circumstantial methods of proving deliberate falsification.
Here, [plaintiff] argues that the record directly reflects [defendant]’s false
statements. If, under Devereaux, an interviewer who uses coercive interviewing
techniques that are known to yield false evidence commits a constitutional
violation, then an interviewer who deliberately mischaracterizes witness
statements in her investigative report also commits a constitutional violation.
Similarly, an investigator who purposefully reports that she has interviewed
witnesses, when she has actually only attempted to make contact with them,
deliberately fabricates evidence.” (Costanich, supra, 627 F.3d at p. 1111.)
• “[N]ot all inaccuracies in an investigative report give rise to a constitutional
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claim. Mere ‘careless[ness]’ is insufficient, as are mistakes of ‘tone.’ Errors
concerning trivial matters cannot establish causation, a necessary element of any
§ 1983 claim. And fabricated evidence does not give rise to a claim if the
plaintiff cannot ‘show the fabrication actually injured her in some way.’ ”
(Spencer, supra, 857 F.3d at p. 798, internal citations omitted.)
• “In light of long-standing criminal prohibitions on making deliberately false
statements under oath, no social worker could reasonably believe that she was
acting lawfully in making deliberately false statements to the juvenile court in
connection with the removal of a dependent child from a caregiver.” (Marshall v.
County of San Diego (2015) 238 Cal.App.4th 1095, 1113 [190 Cal.Rptr.3d 97],
footnotes omitted.)
• “[P]retrial detention can violate the Fourth Amendment not only when it
precedes, but also when it follows, the start of legal process in a criminal case.
The Fourth Amendment prohibits government officials from detaining a person
in the absence of probable cause. That can happen when the police hold
someone without any reason before the formal onset of a criminal proceeding.
But it also can occur when legal process itself goes wrong—when, for example,
a judge’s probable-cause determination is predicated solely on a police officer’s
false statements. Then, too, a person is confined without constitutionally
adequate justification.” (Manuel v. City of Joliet (2017) — U.S. — [137 S.Ct.
911, 918, 197 L.Ed.2d 312], internal citation omitted.)
• “Deliberately fabricated evidence in a prosecutor’s file can rebut any
presumption of prosecutorial independence [i.e., that filing of a criminal
complaint immunizes investigating officers because it is presumed that the
prosecutor filing the complaint exercised independent judgment in determining
that probable cause for an accused’s arrest exists at that time]. . . . In sum, if a
plaintiff establishes that officers either presented false evidence to or withheld
crucial information from the prosecutor, the plaintiff overcomes the presumption
of prosecutorial independence and the analysis reverts back to a normal
causation question.” (Caldwell, supra, 889 F.3d at p. 1116, internal citation
omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901 et
seq.
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.05 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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3053. Retaliation for Exercise of Free Speech Rights—Public
Employee—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] because [he/she/nonbinary pronoun] exercised [his/
her/nonbinary pronoun] right to speak as a private citizen about a matter
of public concern. To establish this claim, [name of plaintiff] must prove
all of the following:
1. [That [name of plaintiff] was speaking as a private citizen and not
as a public employee when [he/she/nonbinary pronoun] [describe
speech alleged to be protected by the First Amendment, e.g.,
criticized the mayor at a city council meeting];]
2. That [name of defendant] [specify retaliatory acts, e.g., terminated
plaintiff’s employment];
3. That [name of plaintiff]’s [e.g., speech to the city council] was a
substantial motivating reason for [name of defendant]’s decision to
[e.g., terminate plaintiff’s employment];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
If [name of plaintiff] proves all of the above, [name of defendant] is not
liable if [he/she/nonbinary pronoun/it] proves either of the following:
6. That [name of defendant] had an adequate employment-based
justification for treating [name of plaintiff] differently from any
other member of the general public; or
7. That [name of defendant] would have [specify adverse action, e.g.,
terminated plaintiff’s employment] anyway for other legitimate
reasons, even if [he/she/nonbinary pronoun/it] also retaliated based
on [name of plaintiff]’s protected conduct.
In deciding whether [name of plaintiff] was speaking as a public citizen or
a public employee (element 1), you should consider whether
[his/her/nonbinary pronoun] [e.g., speech] was within [his/her/nonbinary
pronoun] job responsibilities. [However, the listing of a given task in an
employee’s written job description is neither necessary nor sufficient
alone to demonstrate that conducting the task is part of the employee’s
professional duties.]
New November 2017; Revised May 2020
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Directions for Use
This instruction is for use in a claim by public employees who allege that they
suffered an adverse employment action in retaliation for their private speech on an
issue of public concern. Speech made by public employees in their official capacity
is not insulated from employer discipline by the First Amendment but speech made
in one’s private capacity as a citizen is. (Garcetti v. Ceballos (2006) 547 U.S. 410,
421 [126 S.Ct. 1951, 164 L.Ed.2d 689].) For a claim by a private citizen who
alleges retaliation, see CACI No. 3050, Retaliation—Essential Factual Elements.
Element 1, whether the employee was speaking as a private citizen or as a public
employee, and element 6, whether the public employer had an adequate justification
for the adverse action, are ultimately determined as a matter of law, but may involve
disputed facts. (Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1071.) If there are no
disputed facts, these elements should not be given. They may be modified to express
the particular factual issues that the jury must resolve.
Give the bracketed optional sentence in the last paragraph if the defendant has
placed the plaintiff’s formal written job description in evidence. (See Garcetti,
supra, 547 U.S. at p. 424.)
Note that there are two causation elements. The protected speech must have caused
the employer’s adverse action (element 3), and the adverse action must have caused
the employee harm (element 5). This second causation element will rarely be
disputed in a termination case. For optional language if the employer claims that
there was no adverse action, see CACI No. 2505, Retaliation—Essential Factual
Elements (under California’s Fair Employment and Housing Act). See also CACI
No. 2509, “Adverse Employment Action” Explained (under FEHA).
Sources and Authority
• “ ‘[C]itizens do not surrender their First Amendment rights by accepting public
employment.’ Moreover, ‘[t]here is considerable value . . . in encouraging,
rather than inhibiting, speech by public employees,’ because ‘government
employees are often in the best position to know what ails the agencies for
which they work.’ At the same time, ‘[g]overnment employers, like private
employers, need a significant degree of control over their employees’ words and
actions.’ Accordingly, government employees may be subject to some restraints
on their speech ‘that would be unconstitutional if applied to the general
public.’ ” (Moonin v. Tice (9th Cir. 2017) 868 F.3d 853, 860–861, internal
citations omitted.)
• “First Amendment retaliation claims are governed by the framework in Eng. See
552 F.3d at 1070–72. [Plaintiff] must show that (1) he spoke on a matter of
public concern, (2) he spoke as a private citizen rather than a public employee,
and (3) the relevant speech was a substantial or motivating factor in the adverse
employment action. Upon that showing, the State must demonstrate that (4) it
had an adequate justification for treating [plaintiff] differently from other
members of the general public, or (5) it would have taken the adverse
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employment action even absent the protected speech. ‘[A]ll the factors are
necessary, in the sense that failure to meet any one of them is fatal to the
plaintiff’s case.’ ” (Kennedy v. Bremerton Sch. Dist. (9th Cir. 2017) 869 F.3d
813, 822, internal citations omitted.)
• “In a First Amendment retaliation case, an adverse employment action is an act
that is reasonably likely to deter employees from engaging in constitutionally
protected speech.” (Greisen v. Hanken (9th Cir. 2019) 925 F.3d 1097, 1113.)
• “Pickering [v. Bd. of Educ. (1968) 391 U.S. 563 [88 S.Ct. 1731, 20 L.Ed.2d
811]] and the cases decided in its wake identify two inquiries to guide
interpretation of the constitutional protections accorded to public employee
speech. The first requires determining whether the employee spoke as a citizen
on a matter of public concern. If the answer is no, the employee has no First
Amendment cause of action based on his or her employer’s reaction to the
speech. If the answer is yes, then the possibility of a First Amendment claim
arises. The question becomes whether the relevant government entity had an
adequate justification for treating the employee differently from any other
member of the general public. This consideration reflects the importance of the
relationship between the speaker’s expressions and employment. A government
entity has broader discretion to restrict speech when it acts in its role as
employer, but the restrictions it imposes must be directed at speech that has
some potential to affect the entity’s operations.” (Garcetti, supra, 547 U.S. at p.
418, internal citations omitted.)
• “In the forty years since Pickering, First Amendment retaliation law has evolved
dramatically, if sometimes inconsistently. Unraveling Pickering’s tangled history
reveals a sequential five-step series of questions: (1) whether the plaintiff spoke
on a matter of public concern; (2) whether the plaintiff spoke as a private citizen
or public employee; (3) whether the plaintiff’s protected speech was a substantial
or motivating factor in the adverse employment action; (4) whether the state had
an adequate justification for treating the employee differently from other
members of the general public; and (5) whether the state would have taken the
adverse employment action even absent the protected speech. Analysis of these
questions, further complicated by restraints on our interlocutory appellate
jurisdiction, involves a complex array of factual and legal inquiries requiring
detailed explanation.” (Eng, supra, 552 F.3d at p. 1070.)
• “Whether speech is on a matter of public concern is a question of law,
determined by the court . . .. The speech need not be entirely about matters of
public concern, but it must ‘substantially involve’ such matters. ‘[S]peech
warrants protection when it “seek[s] to bring to light actual or potential
wrongdoing or breach of public trust.” ’ ” (Greisen, supra, 925 F.3d at p. 1109.)
• “[Defendant] may avoid liability if he shows that a ‘final decision maker’s
independent investigation and termination decision, responding to a biased
subordinate’s initial report of misconduct, . . . negate[s] any causal link’
between his retaliatory motive and the adverse employment action. This is
because a final decision maker’s wholly independent investigation and decision
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establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ ” (Karl v. City of Mountlake Terrace (9th Cir. 2012)
678 F.3d 1062, 1072–1073, internal citation omitted.)
• “Whether an individual speaks as a public employee is a mixed question of fact
and law. ‘First, a factual determination must be made as to the “scope and
content of a plaintiff’s job responsibilities.” ’ ‘Second, the “ultimate
constitutional significance” of those facts must be determined as a matter of
law.’ ” (Barone v. City of Springfield (9th Cir. 2018) 902 F.3d 1091, 1099,
internal citations omitted.)
• “An employee does not speak as a citizen merely because the employee directs
speech towards the public, or speaks in the presence of the public, particularly
when an employee’s job duties include interacting with the public.” (Barone,
supra, 902 F.3d at p. 1100.)
• “[T]he parties in this case do not dispute that [plaintiff] wrote his disposition
memo pursuant to his employment duties. We thus have no occasion to articulate
a comprehensive framework for defining the scope of an employee’s duties in
cases where there is room for serious debate. We reject, however, the suggestion
that employers can restrict employees’ rights by creating excessively broad job
descriptions. The proper inquiry is a practical one. Formal job descriptions often
bear little resemblance to the duties an employee actually is expected to perform,
and the listing of a given task in an employee’s written job description is neither
necessary nor sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment purposes.”
(Garcetti, supra, 547 U.S. at p. 424.)
• “To show that retaliation was a substantial or motivating factor behind an
adverse employment action, a plaintiff can (1) introduce evidence that the speech
and adverse action were proximate in time, such that a jury could infer that the
action took place in retaliation for the speech; (2) introduce evidence that the
employer expressed opposition to the speech; or (3) introduce evidence that the
proffered explanations for the adverse action were false and pretextual.”
(Anthoine v. N. Cent. Counties Consortium (9th Cir. 2010) 605 F.3d 740, 750.)
• “[I]n synthesizing relevant Ninth Circuit precedent since Garcetti, an en banc
panel of this Court in Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76 (9th Cir.
2013), announced three guiding principles for undertaking the practical factual
inquiry of whether an employee’s speech is insulated from employer discipline
under the First Amendment. . . . The guiding principles are: [¶] 1. ‘First,
particularly in a highly hierarchical employment setting such as law enforcement,
whether or not the employee confined his communications to his chain of
command is a relevant, if not necessarily dispositive, factor in determining
whether he spoke pursuant to his official duties. When a public employee
communicates with individuals or entities outside of his chain of command, it is
unlikely that he is speaking pursuant to his duties.’ [¶] 2. ‘Second, the subject
matter of the communication is also of course highly relevant to the ultimate
determination whether the speech is protected by the First Amendment . . .
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When an employee prepares a routine report, pursuant to normal departmental
procedure, about a particular incident or occurrence, the employee’s preparation
of that report is typically within his job duties . . . . By contrast, if a public
employee raises within the department broad concerns about corruption or
systemic abuse, it is unlikely that such complaints can reasonably be classified as
being within the job duties of an average public employee, except when the
employee’s regular job duties involve investigating such conduct.’ [¶] 3. ‘Third,
we conclude that when a public employee speaks in direct contravention to his
supervisor’s orders, that speech may often fall outside of the speaker’s
professional duties. Indeed, the fact that an employee is threatened or harassed
by his superiors for engaging in a particular type of speech provides strong
evidence that the act of speech was not, as a ‘practical’ matter, within the
employee’s job duties notwithstanding any suggestions to the contrary in the
employee’s formal job description.’ ” (Brandon v. Maricopa County (9th Cir.
2017) 849 F.3d 837, 843–844, internal citations omitted.)
• “Initially, in this case, the burden was properly placed upon respondent to show
that his conduct was constitutionally protected, and that this conduct was a
‘substantial factor’—or, to put it in other words, that it was a ‘motivating factor’
in the [defendant]’s decision not to rehire him. Respondent having carried that
burden, however, the District Court should have gone on to determine whether
the [defendant] had shown by a preponderance of the evidence that it would
have reached the same decision as to respondent’s re-employment even in the
absence of the protected conduct.” (Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle (1977) 429 U.S. 274, 287 [97 S.Ct. 568, 50 L.Ed.2d 471].)
• “Although the Pickering balancing inquiry is ultimately a legal question, like the
private citizen inquiry, its resolution often entails underlying factual disputes.
Thus we must once again assume any underlying disputes will be resolved in
favor of the plaintiff to determine, as a matter of law, whether the state has
‘adequate justification’ to restrict the employee’s speech. If the allegations,
viewed in light most favorable to the plaintiff, indicate adequate justification,
qualified immunity should be granted.” (Eng, supra, 552 F.3d at pp. 1071–1072,
internal citations omitted.)
• “Although the Pickering framework is most often applied in the retaliation
context, a similar analysis is used when assessing prospective restrictions on
government employee speech. Where a ‘wholesale deterrent to a broad category
of expression’ rather than ‘a post hoc analysis of one employee’s speech and its
impact on that employee’s public responsibilities’ is at issue, the Court weighs
the impact of the ban as a whole—both on the employees whose speech may be
curtailed and on the public interested in what they might say—against the
restricted speech’s ‘ “necessary impact on the actual operation” of the
Government,’ ‘[U]nlike an adverse action taken in response to actual speech,’ a
prospective restriction ‘chills potential speech before it happens.’ The
government therefore must shoulder a heavier burden when it seeks to justify an
ex ante speech restriction as opposed to ‘an isolated disciplinary action.’ ”
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(Moonin, supra, 868 F.3d at p. 861, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 563
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law §§ 894,
895
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, ¶ 2.03
(Matthew Bender)
3054 Reserved for Future Use
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3055. Rebuttal of Retaliatory Motive
[Name of defendant] claims that [he/she/nonbinary pronoun/it] [specify
alleged retaliatory conduct, e.g., arrested plaintiff] because [specify
nonretaliatory reason for the adverse action].
If [name of plaintiff] proves that retaliation was a substantial or
motivating factor for [name of defendant]’s [specify alleged retaliatory
conduct], you must then consider if [name of defendant] would have taken
the same action even in the absence of [name of plaintiff]’s
constitutionally protected activity.
To succeed on this defense, [name of defendant] must prove that [he/she/
nonbinary pronoun/it] would have [specify alleged retaliatory conduct, e.g.,
arrested plaintiff] on the basis of [specify the defendant’s stated
nonretaliatory reason for the adverse action], regardless of retaliation for
[name of plaintiff]’s [specify constitutionally protected activity].
New May 2021
Directions for Use
This instruction sets forth a defendant’s response to a plaintiff’s claim of retaliation.
See CACI No. 3050, Retaliation—Essential Factual Elements. The defendant bears
the burden of proving the nonretaliatory reason for the allegedly retaliatory conduct.
(See Nieves v. Bartlett (2019) ___ U.S. ___ [139 S.Ct. 1715, 1725, 204 L.Ed.2d 1].
In retaliatory arrest and prosecution cases, use this instruction only if the court has
determined the absence of probable cause or that an exception to the no-probable-
cause requirement applies because the plaintiff presented objective evidence that
otherwise similarly situated individuals not engaged in the same sort of
constitutionally protected activity were not arrested or prosecuted. (See Nieves,
supra, 139 S.Ct. at p. 1727 [stating exception to no-probable-cause requirement
when otherwise similarly situated individuals were not arrested for the same
conduct].)
Sources and Authority
• “[I]f the plaintiff establishes the absence of probable cause, ‘then the Mt.
Healthy test governs: The plaintiff must show that the retaliation was a
substantial or motivating factor behind the [arrest], and, if that showing is made,
the defendant can prevail only by showing that the [arrest] would have been
initiated without respect to retaliation.’ ” (Nieves, supra, 139 S.Ct. at p. 1725.)
Secondary Sources
4 Witkin & Epstein, California Criminal Law (4th ed. 2020) Pretrial, § 367
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 511
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8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 894–895
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity
Laws, § 40.26 (Matthew Bender)
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.15 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3056–3059. Reserved for Future Use
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3060. Unruh Civil Rights Act—Essential Factual Elements (Civ.
Code, §§ 51, 52)
[Name of plaintiff] claims that [name of defendant] denied
[him/her/nonbinary pronoun] full and equal [accommodations/advantages/
facilities/privileges/services] because of [his/her/nonbinary pronoun] [sex/
race/color/religion/ancestry/ national origin/disability/medical condition/
genetic information/marital status/sexual orientation/citizenship/primary
language/immigration status/[insert other actionable characteristic]]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [denied/aided or incited a denial
of/discriminated or made a distinction that denied] full and equal
[accommodations/advantages/facilities/privileges/services] to [name
of plaintiff];
2. [That a substantial motivating reason for [name of defendant]’s
conduct was [its perception of] [name of plaintiff]’s [sex/race/color/
religion/ancestry/national origin/medical condition/genetic
information/marital status/sexual orientation/citizenship/primary
language/immigration status/[insert other actionable
characteristic]];]
2. [That the [sex/race/color/religion/ancestry/national origin/medical
condition/genetic information/marital status/sexual orientation/
citizenship/primary language/immigration status/[insert other
actionable characteristic]] of a person whom [name of plaintiff] was
associated with was a substantial motivating reason for [name of
defendant]’s conduct;]
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2011, June 2012; Renumbered from CACI
No. 3020 December 2012; Revised June 2013, June 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s
conduct. “Substantial motivating reason” has been held to be the appropriate
standard under the Fair Employment and Housing Act to address the possibility of
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both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No.
2507, “Substantial Motivating Reason” Explained.) Whether the FEHA standard
applies under the Unruh Act has not been addressed by the courts.
With the exception of claims that are also violations of the Americans With
Disabilities Act (ADA) (see Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665
[94 Cal.Rptr.3d 685, 208 P.3d 623]), intentional discrimination is required for
violations of the Unruh Act. (See Harris v. Capital Growth Investors XIV (1991) 52
Cal.3d 1142, 1149 [278 Cal.Rptr. 614, 805 P.2d 873].) The intent requirement is
encompassed within the motivating-reason element. For claims that are also
violations of the ADA, do not give element 2.
Note that there are two causation elements. There must be a causal link between the
discriminatory intent and the adverse action (see element 2), and there must be a
causal link between the adverse action and the harm (see element 4).
For an instruction on damages under the Unruh Act, see CACI No. 3067, Unruh
Civil Rights Act—Damages. Note that the jury may award a successful plaintiff up
to three times actual damages but not less than $4,000 regardless of any actual
damages. (Civ. Code, § 52(a).) In this regard, harm is presumed, and elements 3 and
4 may be considered as established if no actual damages are sought. (See Koire v.
Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Unruh
Act violations are per se injurious]; Civ. Code, § 52(a) [provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages];
see also Civ. Code, § 52(h) [“actual damages” means special and general damages].)
The judge may decide the issue of whether the defendant is a business establishment
as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986) 178
Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be needed
if there are factual issues. This element has been omitted from the instruction
because it is unlikely to go to a jury.
The Act is not limited to the categories expressly mentioned in the statute. Other
forms of arbitrary discrimination by business establishments are prohibited. (Marina
Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 736 [180 Cal.Rptr. 496, 640 P.2d 115].)
Therefore, this instruction allows the user to “insert other actionable characteristic”
throughout. Nevertheless, there are limitations on expansion beyond the statutory
classifications. First, the claim must be based on a personal characteristic similar to
those listed in the statute. Second, the court must consider whether the alleged
discrimination was justified by a legitimate business reason. Third, the consequences
of allowing the claim to proceed must be taken into account. (Semler v. General
Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1392–1393 [127 Cal.Rptr.3d
794]; see Harris, supra, 52 Cal.3d at pp. 1159–1162.) However, these issues are
most likely to be resolved by the court rather than the jury. (See Harris, supra, 52
Cal.3d at p. 1165.) Therefore, no elements are included to address what may be an
“other actionable characteristic.” If there are contested factual issues, additional
instructions or special interrogatories may be necessary.
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Sources and Authority
• Unruh Civil Rights Act. Civil Code section 51.
• Remedies Under Unruh Act. Civil Code section 52.
• “The Unruh Act was enacted to ‘create and preserve a nondiscriminatory
environment in California business establishments by “banishing” or
“eradicating” arbitrary, invidious discrimination by such establishments.’ ”
(Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937 [190 Cal.Rptr.3d 33].)
• “Invidious discrimination is the treatment of individuals in a manner that is
malicious, hostile, or damaging.” (Javorsky v. Western Athletic Clubs, Inc. (2015)
242 Cal.App.4th 1386, 1404 [195 Cal.Rptr.3d 706].)
• “ ‘The Legislature used the words “all” and “of every kind whatsoever” in
referring to business establishments covered by the Unruh Act, and the inclusion
of these words without any exception and without specification of particular
kinds of enterprises, leaves no doubt that the term “business establishments” was
used in the broadest sense reasonably possible. The word “business” embraces
everything about which one can be employed, and it is often synonymous with
“calling, occupation, or trade, engaged in for the purpose of making a livelihood
or gain.” The word “establishment,” as broadly defined, includes not only a fixed
location, such as the “place where one is permanently fixed for residence or
business,” but also a permanent “commercial force or organization” or “a
permanent settled position, (as in life or business).” ’ ” (O’Connor v. Village
Green Owners Assn. (1983) 33 Cal.3d 790, 795 [191 Cal.Rptr. 320, 662 P.2d
427], internal citations omitted.)
• Whether a defendant is a “business establishment” is decided as an issue of law.
(Rotary Club of Duarte, supra, 178 Cal.App.3d at p. 1050.)
• “When a plaintiff has visited a business’s website with intent to use its services
and alleges that the business’s terms and conditions exclude him or her from full
and equal access to its services, the plaintiff need not enter into an agreement
with the business to establish standing under the Unruh Civil Rights Act. In
general, a person suffers discrimination under the Act when the person presents
himself or herself to a business with an intent to use its services but encounters
an exclusionary policy or practice that prevents him or her from using those
services. We conclude that this rule applies to online businesses and that visiting
a website with intent to use its services is, for purposes of standing, equivalent
to presenting oneself for services at a brick-and-mortar store. Although mere
awareness of a business’s discriminatory policy or practice is not enough for
standing under the Act, entering into an agreement with the business is not
required.” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1023 [250 Cal.Rptr.3d
770, 446 P.3d 276].)
• “We hold that including websites connected to a physical place of public
accommodation is not only consistent with the plain language of Title III, but it
is also consistent with Congress’s mandate that the ADA keep pace with
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changing technology to effectuate the intent of the statute.” (Thurston v. Midvale
Corp. (2019) 39 Cal.App.5th 634, 644 [252 Cal.Rptr.3d 292].)
• “Here, the City was not acting as a business establishment. It was amending an
already existing municipal code section to increase the minimum age of a
responsible person from the age of 21 years to 30. The City was not directly
discriminating against anyone and nothing in the plain language of the Unruh
Civil Rights Act makes its provisions applicable to the actions taken by the
City.” (Harrison v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 175
[196 Cal.Rptr.3d 267].)
• “[T]he protection against discrimination afforded by the Unruh Act applies to ‘all
persons,’ and is not reserved for restricted categories of prohibited
discrimination.” (Marina Point, Ltd., supra, 30 Cal.3d at p. 736.)
• “Nevertheless, the enumerated categories, bearing the ‘common element’ of
being ‘personal’ characteristics of an individual, necessarily confine the Act’s
reach to forms of discrimination based on characteristics similar to the statutory
classifications—such as ‘a person’s geographical origin, physical attributes, and
personal beliefs.’ The ‘personal characteristics’ protected by the Act are not
defined by ‘immutability, since some are, while others are not [immutable], but
that they represent traits, conditions, decisions, or choices fundamental to a
person’s identity, beliefs and self-definition.’ ” (Candelore v. Tinder, Inc. (2018)
19 Cal.App.5th 1138, 1145 [228 Cal.Rptr.3d 336].)
• “In addition to the particular forms of discrimination specifically outlawed by the
Act (sex, race, color, etc.), courts have held the Act ‘prohibit[s] discrimination
based on several classifications which are not specifically enumerated in the
statute.’ These judicially recognized classifications include unconventional dress
or physical appearance, families with children, homosexuality, and persons under
18.” (Hessians Motorcycle Club v. J.C. Flanagans (2001) 86 Cal.App.4th 833,
836 [103 Cal.Rptr.2d 552], internal citations omitted.)
• “The Act applies not merely in situations where businesses exclude individuals
altogether, but also ‘where unequal treatment is the result of a business practice.’
‘Unequal treatment includes offering price discounts on an arbitrary basis to
certain classes of individuals.’ ” (Candelore, supra, 19 Cal.App.5th at pp.
1145–1146, internal citations omitted.)
• “Race discrimination claims under . . . the Unruh Civil Rights Act follow the
analytical framework established under federal employment law. Although
coaches are different from ‘ordinary employers,’ the McDonnell Douglas
framework strikes the appropriate balance in evaluating race discrimination
claims brought by college athletes: . . . .” (Mackey v. Board of Trustees of
California State University (2019) 31 Cal.App.5th 640, 661 [242 Cal.Rptr.3d
757], internal citations omitted.)
• “[T]he language and history of the Unruh Act indicate that the legislative object
was to prohibit intentional discrimination in access to public accommodations.
We have been directed to no authority, nor have we located any, that would
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justify extension of a disparate impact test, which has been developed and
applied by the federal courts primarily in employment discrimination cases, to a
general discrimination-in-public-accommodations statute like the Unruh Act.
Although evidence of adverse impact on a particular group of persons may have
probative value in public accommodations cases and should therefore be
admitted in appropriate cases subject to the general rules of evidence, a plaintiff
must nonetheless plead and prove a case of intentional discrimination to recover
under the Act.” (Harris, supra, 52 Cal.3d at p. 1149.)
• “On examining the language, statutory context, and history of section 51,
subdivision (f), we conclude . . . [t]he Legislature’s intent in adding subdivision
(f) was to provide disabled Californians injured by violations of the ADA with
the remedies provided by section 52. A plaintiff who establishes a violation of
the ADA, therefore, need not prove intentional discrimination in order to obtain
damages under section 52.” (Munson, supra, 46 Cal.4th at p. 665.)
• “Civil Code section 51, subdivision (f) states: ‘A violation of the right of any
individual under the federal [ADA] shall also constitute a violation of this
section.’ The ADA provides in pertinent part: ‘No individual shall be
discriminated against on the basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of any
place of public accommodation by any person who . . . operates a place of
public accommodation.’ The ADA defines discrimination as ‘a failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity
can demonstrate that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges, advantages, or
accommodations.’ ” (Baughman v. Walt Disney World Co. (2013) 217
Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825], internal citations omitted.)
• “ ‘Although the Unruh Act proscribes “any form of arbitrary discrimination,”
certain types of discrimination have been denominated “reasonable” and,
therefore, not arbitrary.’ Thus, for example, ‘legitimate business interests may
justify limitations on consumer access to public accommodations.’ ” (Hankins v.
El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 520 [74 Cal.Rptr.2d 684],
internal citations omitted.)
• “Discrimination may be reasonable, and not arbitrary, in light of the nature of
the enterprise or its facilities, legitimate business interests (maintaining order,
complying with legal requirements, and protecting business reputation or
investment), and public policy supporting the disparate treatment.” (Javorsky,
supra, 242 Cal.App.4th at p. 1395.)
• “[T]he Act’s objective of prohibiting ‘unreasonable, arbitrary or invidious
discrimination’ is fulfilled by examining whether a price differential reflects an
‘arbitrary, class-based generalization.’ . . . [A] policy treating age groups
differently in this respect may be upheld, at least if the pricing policy (1)
ostensibly provides a social benefit to the recipient group; (2) the recipient group
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is disadvantaged economically when compared to other groups paying full price;
and (3) there is no invidious discrimination.” (Javorsky, supra, 242 Cal.App.4th
at p. 1399.)
• “Unruh Act issues have often been decided as questions of law on demurrer or
summary judgment when the policy or practice of a business establishment is
valid on its face because it bears a reasonable relation to commercial objectives
appropriate to an enterprise serving the public.” (Harris, supra, 52 Cal.3d at p.
1165, internal citations omitted.)
• “It is thus manifested by section 51 that all persons are entitled to the full and
equal privilege of associating with others in any business establishment. And
section 52, liberally interpreted, makes clear that discrimination by such a
business establishment against one’s right of association on account of the
associates’ color, is violative of the Act. It follows . . . that discrimination by a
business establishment against persons on account of their association with
others of the black race is actionable under the Act.” (Winchell v. English (1976)
62 Cal.App.3d 125, 129 [133 Cal.Rptr. 20].)
• “Appellant is disabled as a matter of law not only because she is HIV positive,
but also because it is undisputed that respondent ‘regarded or treated’ her as a
person with a disability. The protection of the Unruh Civil Rights Act extends
both to people who are currently living with a physical disability that limits a
life activity and to those who are regarded by others as living with such a
disability. . . . ‘Both the policy and language of the statute offer protection to a
person who is not actually disabled, but is wrongly perceived to be. The statute’s
plain language leads to the conclusion that the “regarded as” definition casts a
broader net and protects any individual “regarded” or “treated” by an employer
“as having, or having had, any physical condition that makes achievement of a
major life activity difficult” or may do so in the future.’ Thus, even an HIV-
positive person who is outwardly asymptomatic is protected by the Unruh Civil
Rights Act.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 529–530 [155
Cal.Rptr.3d 620], original italics, internal citations omitted.)
• “[T]he Unruh Civil Rights Act prohibits arbitrary discrimination in public
accommodations with respect to trained service dogs, but not to service-animals-
in-training.” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214,
224 [223 Cal.Rptr.3d 133].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 994–1015
Chin et al., California Practice Guide: Employment Litigation, Ch.7-G, Unruh Civil
Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, §§ 116.10–116.13 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 et seq. (Matthew Bender)
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3061. Discrimination in Business Dealings—Essential Factual
Elements (Civ. Code, § 51.5)
[Name of plaintiff] claims that [name of defendant] denied
[him/her/nonbinary pronoun] full and equal rights to conduct business
because of [name of plaintiff]’s [sex/race/color/religion/ancestry/national
origin/disability/medical condition/genetic information/marital
status/sexual orientation/citizenship/primary language/immigration
status/[insert other actionable characteristic]]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] [discriminated
against/boycotted/blacklisted/refused to buy from/refused to
contract with/refused to sell to/refused to trade with] [name of
plaintiff];
2. [That a substantial motivating reason for [name of defendant]’s
conduct was [its perception of] [name of plaintiff]’s [sex/race/color/
religion/ ancestry/national origin/ disability/medical condition/
genetic information/marital status/sexual orientation/citizenship/
primary language/immigration status/[insert other actionable
characteristic]];]
2. [or]
2. [That a substantial motivating reason for [name of defendant]’s
conduct was [its perception of] the
[sex/race/color/religion/ancestry/national origin/disability/medical
condition/genetic information/marital status/sexual orientation/
citizenship/primary language/immigration status/[insert other
actionable characteristic]] of [name of plaintiff]’s
[partners/members/stockholders/directors/officers/managers
/superintendents/agents/employees/business associates/suppliers/
customers];]
2. [or]
2. [That a substantial motivating reason for [name of defendant]’s
conduct was [its perception of] the
[sex/race/color/religion/ancestry/national origin/disability/medical
condition/genetic information/marital status/sexual orientation/
citizenship/primary language/immigration status/[insert other
actionable characteristic]] of a person with whom [name of
plaintiff] was associated;]
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
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causing [name of plaintiff]’s harm.
New September 2003; Revised June 2012; Renumbered from CACI No. 3021 and
Revised December 2012; Revised June 2013, December 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Under the Unruh Civil Rights Act (see CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements), the California Supreme Court has held that
intentional discrimination is required. (See Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142, 1159–1162 [278 Cal.Rptr. 614, 805 P.2d 873].) While there
is no similar California case imposing an intent requirement under Civil Code
section 51.5, Civil Code section 51.5 requires that the discrimination be on account
of the protected category. (Civ. Code, § 51.5(a).) The kinds of prohibited conduct
would all seem to involve intentional acts. (See Nicole M. v. Martinez Unified Sch.
Dist. (N.D. Cal. 1997) 964 F. Supp. 1369, 1389, superseded by statute on other
grounds as stated in Sandoval v. Merced Union High Sch. (E.D. Cal. 2006) 2006
U.S. Dist. LEXIS 28446.) The intent requirement is encompassed within the
motivating-reason element (element 2).
There is an exception to the intent requirement under the Unruh Act for conduct that
violates the Americans With Disabilities Act. (See Munson v. Del Taco, Inc. (2009)
46 Cal.4th 661, 665 [94 Cal.Rptr.3d 685, 208 P.3d 623].). Because this exception is
based on statutory construction of the Unruh Act (see Civ. Code, § 51(f)), the
committee does not believe that it applies to section 51.5, which contains no similar
language.
Note that there are two causation elements. There must be a causal link between the
discriminatory intent and the adverse action (see element 2), and there must be a
causal link between the adverse action and the harm (see element 4).
Element 2 uses the term “substantial motivating reason” to express causation
between the protected classification and the defendant’s conduct. “Substantial
motivating reason” has been held to be the appropriate standard under the Fair
Employment and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether the FEHA standard applies under Civil
Code section 51.5 has not been addressed by the courts.
For an instruction on damages under Civil Code section 51.5, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
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It is possible that elements 3 and 4 are not needed if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
The judge may decide the issue of whether the defendant is a business establishment
as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986) 178
Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be needed
if there are factual issues. This element has been omitted from the instruction
because it is unlikely to go to a jury.
Conceptually, this instruction has some overlap with CACI No. 3060, Unruh Civil
Rights Act—Essential Factual Elements. For a discussion of the basis of this
instruction, see Jackson v. Superior Court (1994) 30 Cal.App.4th 936, 941 [36
Cal.Rptr.2d 207].
Sources and Authority
• Discrimination in Business Dealings. Civil Code section 51.5.
• Protected Characteristics. Civil Code section 51(b).
• “In 1976 the Legislature added Civil Code section 51.5 to the Unruh Civil
Rights Act and amended Civil Code section 52 (which provides penalties for
those who violate the Unruh Civil Rights Act), in order to, inter alia, include
section 51.5 in its provisions.” (Pines v. Tomson (1984) 160 Cal.App.3d 370, 384
[206 Cal.Rptr. 866], footnote omitted.)
• “[I]t is clear from the cases under section 51 that the Legislature did not intend
in enacting section 51.5 to limit the broad language of section 51 to include only
selling, buying or trading. Both sections 51 and 51.5 have been liberally applied
to all types of business activities. Furthermore, section 51.5 forbids a business to
‘discriminate against’ ‘any person’ and does not just forbid a business to ‘boycott
or blacklist, refuse to buy from, sell to, or trade with any person.’ ” (Jackson,
supra, 30 Cal.App.4th at p. 941, internal citation and footnote omitted.)
• “Although the phrase ‘business establishment of every kind whatsoever’ has
been interpreted by the Supreme Court and the Court of Appeal in the context of
section 51, we are aware of no case which interprets that term in the context of
section 51.5. We believe, however, that the Legislature meant the identical
language in both sections to have the identical meaning.” (Pines, supra, 160
Cal.App.3d at p. 384, internal citations omitted.)
• “[T]he classifications specified in section 51.5, which are identical to those of
section 51, are likewise not exclusive and encompass other personal
characteristics identified in earlier cases.” (Roth v. Rhodes (1994) 25 Cal.App.4th
530, 538 [30 Cal.Rptr.2d 706], internal citations omitted.)
• “[T]he analysis under Civil Code section 51.5 is the same as the analysis we
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have already set forth for purposes of the [Unruh Civil Rights] Act.” (Semler v.
General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1404 [127
Cal.Rptr.3d 794].)
• “[W]hen such discrimination occurs, a person has standing under section 51.5 if
he or she is ‘associated with’ the disabled person and has also personally
experienced the discrimination.” (Osborne v. Yasmeh (2016) 1 Cal.App.5th 1118,
1134 [205 Cal.Rptr.3d 656].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 994–1015
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, §§ 116.10–116.13 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
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3062. Gender Price Discrimination—Essential Factual Elements
(Civ. Code, § 51.6)
[Name of plaintiff] claims that [name of defendant] charged
[him/her/nonbinary pronoun] a higher price for services because of [his/
her/nonbinary pronoun] gender. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] charged [name of plaintiff] more for
services of similar or like kind because of [his/her/nonbinary
pronoun] gender;
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
It is not improper to charge a higher price for services if the price
difference is based on the amount of time, difficulty, or cost of providing
the services.
New September 2003; Renumbered from CACI No. 3022 December 2012; Revised
June 2013, July 2018
Directions for Use
For an instruction on damages under Civil Code section 51.6, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
It is possible that elements 2 and 3 are not needed if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
The judge may decide the issue of whether the defendant is a business establishment
as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986) 178
Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be needed
if there are factual issues. This element has been omitted from the instruction
because it is unlikely to go to a jury.
Price discrimination based on age has been held to violate the Unruh Act, at least if
there is no statute-based policy supporting the differential. (See Candelore v. Tinder,
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Inc. (2018) 19 Cal.App.5th 1138, 1146–1155 [228 Cal.Rptr.3d 336]; but see
Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1402–1403
[195 Cal. Rptr. 3d 706].)
Sources and Authority
• Gender Price Discrimination. Civil Code section 51.6.
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152,
159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds
in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d
195].)
• “ ‘[D]iscounts must be “applicable alike to persons of every sex, color, race,
[and age, etc.]”, instead of being contingent on some arbitrary, class-based
generalization.’ ” (Candelore, supra, 19 Cal.App.5th at p. 1154.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1002,
1003
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.15 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.44 (Matthew Bender)
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3063. Acts of Violence—Ralph Act—Essential Factual Elements
(Civ. Code, § 51.7)
[Name of plaintiff] claims that [name of defendant] committed an act of
violence against [him/her/nonbinary pronoun] because of
[his/her/nonbinary pronoun] [race/color/religion/ancestry/national origin/
political affiliation/sex/sexual
orientation/age/disability/citizenship/primary language/immigration
status/position in a labor dispute/[insert other actionable characteristic]].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] committed a violent act against [name of
plaintiff] [or [his/her/nonbinary pronoun] property];
2. That a substantial motivating reason for [name of defendant]’s
conduct was [[his/her/nonbinary pronoun] perception of] [name of
plaintiff]’s [race/color/religion/ancestry/national origin/political
affiliation/sex/sexual orientation/age/disability/citizenship/primary
language/immigration status/position in a labor dispute/[insert
other actionable characteristic]];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023A December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving actual acts
of violence alleged to have been committed by the defendant against the plaintiff.
For an instruction involving only threats of violence, see CACI No. 3064, Threats of
Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s acts.
“Substantial motivating reason” has been held to be the appropriate standard under
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
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theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Under the Ralph Act, a plaintiff must establish the defendant threatened or
committed violent acts against the plaintiff or their property, and a motivating
reason for doing so was a prohibited discriminatory motive, or that [defendant]
aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v.
County of Orange (2017) 10 Cal.App.5th 1268, 1291 [217 Cal.Rptr.3d 275].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and provides
for a civil remedy for violation of that right. Nothing in the statute requires that
a plaintiff prove that the offending act was motivated by hate.” (Ventura v. ABM
Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150 Cal.Rptr.3d 861].)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152,
159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds
in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d
195].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et
seq.
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims and
Defenses, Ch. 14(IV)-B, Ralph Civil Rights Act of 1976—Elements, ¶ 14:940 (The
Rutter Group)
Cheng et al., Cal. Fair Housing and Public Accommodations § 914:2, 14:39 (The
Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
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California Civil Practice: Civil Rights Litigation, §§ 3:1–3:15 (Thomson Reuters)
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3064. Threats of Violence—Ralph Act—Essential Factual Elements
(Civ. Code, § 51.7)
[Name of plaintiff] claims that [name of defendant] intimidated [him/her/
nonbinary pronoun] by threat of violence because of [his/her/nonbinary
pronoun] [race/color/religion/ancestry/national origin/political affiliation/
sex/sexual orientation/age/disability/citizenship/primary
language/immigration status/position in a labor dispute/[insert other
actionable characteristic]]. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] intentionally threatened violence against
[name of plaintiff] [or [his/her/nonbinary pronoun] property],
[whether or not [name of defendant] actually intended to carry out
the threat];
2. That a substantial motivating reason for [name of defendant]’s
conduct was [[his/her/nonbinary pronoun] perception of] [name of
plaintiff]’s [race/color/religion/ancestry/national origin/political
affiliation/sex/sexual orientation/age/disability/citizenship/primary
language/immigration status/position in a labor dispute/[insert
other actionable characteristic]];
3. That a reasonable person in [name of plaintiff]’s position would
have believed that [name of defendant] would carry out [his/her/
nonbinary pronoun] threat;
4. That a reasonable person in [name of plaintiff]’s position would
have been intimidated by [name of defendant]’s conduct;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023B December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving threats of
violence alleged to have been directed by the defendant toward the plaintiff. For an
instruction involving actual acts of violence, see CACI No. 3063, Acts of
Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s threats.
“Substantial motivating reason” has been held to be the appropriate standard under
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the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
No published California appellate opinion establishes elements 3 and 4. However,
the Ninth Circuit Court of Appeals and the California Fair Employment and
Housing Commission have held that a reasonable person in the plaintiff’s position
must have been intimidated by the actions of the defendant and have perceived a
threat of violence. (See Winarto v. Toshiba America Electronics Components, Inc.
(9th Cir. 2001) 274 F.3d 1276, 1289–1290; Dept. Fair Empl. & Hous. v. Lake Co.
Dept. of Health Serv. (July 22, 1998) 1998 CAFEHC LEXIS 16, **55–56.)
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Under the Ralph Act, a plaintiff must establish the defendant threatened or
committed violent acts against the plaintiff or their property, and a motivating
reason for doing so was a prohibited discriminatory motive, or that [defendant]
aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v.
County of Orange (2017) 10 Cal.App.5th 1268, 1291 [217 Cal.Rptr.3d 275].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and provides
for a civil remedy for violation of that right. Nothing in the statute requires that
a plaintiff prove that the offending act was motivated by hate.” (Ventura v. ABM
Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150 Cal.Rptr.3d 861].)
• “The test is: ‘would a reasonable person, standing in the shoes of the plaintiff,
have been intimidated by the actions of the defendant and have perceived a
threat of violence?’ ” (Winarto, supra, 274 F.3d at pp. 1289–1290, internal
citation omitted.)
• “When a threat of violence would lead a reasonable person to believe that the
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threat will be carried out, in light of the ‘entire factual context,’ including the
surrounding circumstances and the listeners’ reactions, then the threat does not
receive First Amendment protection, and may be actionable under the Ralph Act.
The only intent requirement is that respondent ‘intentionally or knowingly
communicates his [or her] threat, not that he intended or was able to carry out
his threat.’ A threat exists if the ‘target of the speaker reasonably believes that
the speaker has the ability to act him or herself or to influence others. . . . It is
the perception of a reasonable person that is dispositive, not the actual intent of
the speaker.’ ” (Dept. Fair Empl. & Hous., supra, 1998 CAFEHC LEXIS at pp.
55–56, internal citations omitted.)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d 152,
159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other grounds
in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133, 707 P.2d
195].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et
seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Employment
Discrimination—Unruh Civil Rights Act, ¶¶ 7:1528–7:1529 (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims and
Defenses, Ch. 14(IV)-B, Ralph Civil Rights Act of 1976—Elements, ¶ 14:940 (The
Rutter Group)
Cheng et al., Cal. Fair Housing and Public Accommodations §§ 14:2, 14:3 (The
Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
California Civil Practice: Civil Rights Litigation §§ 3:1–3:15 (Thomson Reuters)
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3065. Sexual Harassment in Defined Relationship—Essential
Factual Elements (Civ. Code, § 51.9)
[Name of plaintiff] claims that [name of defendant] sexually harassed [him/
her/nonbinary pronoun]. To establish this claim, [name of plaintiff] must
prove all of the following:
1. [That [name of plaintiff] had a [business/service/ [or] professional]
relationship with [name of defendant];]
1. [or]
1. [That [name of defendant] held [himself/herself/nonbinary pronoun]
out as being able to help [name of plaintiff] establish a [business/
service/ [or] professional] relationship with [[name of defendant]/
[or] [name of third party]];]
2. [That [name of defendant] made [sexual
advances/solicitations/sexual requests/demands for sexual
compliance/[insert other actionable conduct]] to [name of plaintiff];]
2. [or]
2. [That [name of defendant] engaged in [verbal/visual/physical]
conduct of a [sexual nature/hostile nature based on gender];]
3. That [name of defendant]’s conduct was unwelcome and also
pervasive or severe; and
4. That [name of plaintiff] has suffered or will suffer [economic loss
or disadvantage/personal injury/the violation of a statutory or
constitutional right] as a result of [name of defendant]’s conduct.
New September 2003; Revised April 2008; Renumbered from CACI No. 3024
December 2012; Revised January 2019
Directions for Use
Select the appropriate option for element 1 depending on the nature of the
relationship between the parties. Select either or both options for element 2
depending on the defendant’s conduct. For a nonexclusive list of relationships
covered, see Civil Code section 51.9(a)(1).
See also CACI No. 2524, “Severe or Pervasive” Explained.
Sources and Authority
• Sexual Harassment in Defined Relationship. Civil Code section 51.9.
• “[The] history of the [1999] amendments to Civil Code section 51.9 leaves no
doubt of the Legislature’s intent to conform the requirements governing liability
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for sexual harassment in professional relationships outside the workplace to
those of the federal law’s Title VII and California’s FEHA, both of which pertain
to liability for sexual harassment in the workplace. Under both laws, an
employee plaintiff who cannot prove a demand for sexual favors in return for a
job benefit (that is, quid pro quo harassment) must show that the sexually
harassing conduct was so pervasive or severe as to alter the conditions of
employment. With respect to liability under section 51.9, which covers a wide
variety of business relationships outside the workplace, the relevant inquiry is
whether the alleged sexually harassing conduct was sufficiently pervasive or
severe as to alter the conditions of the business relationship. This inquiry must
necessarily take into account the nature and context of the particular business
relationship.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1048 [95 Cal.Rptr.3d 636,
209 P.3d 963].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law § 992
1 California Landlord-Tenant Practice, Ch. 3, Liability for Sexual Harassment
(Cont.Ed.Bar 2d ed.) § 3.70A
1 Wrongful Employment Termination Practice, Ch. 3, When Plaintiff is Not
Employee, Applicant, or Independent Contractor (Cont.Ed.Bar 2d ed.) § 3.12
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36; Ch. 116, Civil Rights: Discrimination in Business
Establishments, §§ 116.35, 116.90; Ch. 117, Civil Rights: Housing Discrimination,
§ 117.32 (Matthew Bender)
1 Westley et al., Matthew Bender Practice Guide: California Landlord-Tenant
Litigation, Ch. 2, Creation of Tenancy, 2.13 (Matthew Bender)
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3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1)
[Name of plaintiff] claims that [name of defendant] intentionally interfered
with [or attempted to interfere with] [his/her/nonbinary pronoun] civil
rights by threats, intimidation, or coercion. To establish this claim, [name
of plaintiff] must prove all of the following:
1. [That by threats, intimidation or coercion, [name of defendant]
caused [name of plaintiff] to reasonably believe that if
[he/she/nonbinary pronoun] exercised [his/her/nonbinary pronoun]
right [insert right, e.g., “to vote”], [name of defendant] would
commit violence against [[him/her/nonbinary pronoun]/ [or] [his/
her/nonbinary pronoun] property] and that [name of defendant] had
the apparent ability to carry out the threats;]
1. [or]
1. [That [name of defendant] acted violently against [[name of
plaintiff]/ [and] [name of plaintiff]’s property] [to prevent [him/her/
nonbinary pronoun] from exercising [his/her/nonbinary pronoun]
right [e.g., to vote]/to retaliate against [name of plaintiff] for having
exercised [his/her/nonbinary pronoun] right [e.g., to vote]];]
[2. That [name of defendant] intended to deprive [name of plaintiff] of
[his/her/nonbinary pronoun] enjoyment of the interests protected
by the right [e.g., to vote];]
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Renumbered from CACI No. 3025 and Revised December
2012, November 2018
Directions for Use
Select the first option for element 1 if the defendant’s conduct involved threats of
violence. (See Civ. Code, § 52.1(k).) Select the second option if the conduct
involved actual violence.
The Bane Act provides that speech alone is not sufficient to constitute a violation
unless it involves a credible threat of violence. (Civ. Code, § 52.1(k).) This
limitation would appear to foreclose a claim based on threats, intimidation, or
coercion involving a nonviolent consequence. (See Cabesuela v. Browning-Ferris
Industries (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60] [to state a cause of
action under Bane Act there must first be violence or intimidation by threat of
violence].) For example, it would not be a violation to threaten to report someone to
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immigration if the person exercises a right granted under labor law. No case has
been found, however, that applies the speech limitation to foreclose such a claim,
and several courts have suggested that this point is not fully settled. (See Shoyoye v.
County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [137 Cal.Rptr.3d 839] [we
“need not decide that every plaintiff must allege violence or threats of violence in
order to maintain an action under section 52.1”]; City and County of San Francisco
v. Ballard (2006) 136 Cal.App.4th 381, 408 [39 Cal.Rptr.3d 1] [also noting issue but
finding it unnecessary to address].) To assert such a claim, modify element 1, option
1 to allege coercion based on a nonviolent threat with severe consequences.
Civil Code section 52(a) provides for damages up to three times actual damages but
a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act), 51.5, and
51.6. Civil Code section 52(b) provides for punitive damages for violations of Civil
Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of Section 52 mentions
the Bane Act or Civil Code section 52.1. Nevertheless, the reference to section 52 in
subsection (b) of the Bane Act would seem to indicate that damages may be
recovered under both subsections (a) and (b) of section 52.
Under the Unruh Act, if only the statutory minimum damages of $4,000 is sought, it
is not necessary to prove harm and causation. (See Koire v. Metro Car Wash (1985)
40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Section 52 provides for
minimum statutory damages for every violation of section 51, regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].) Presumably, the same rule applies under the Bane
Act as the statutory minimum of section 52(a) should be recoverable Therefore,
omit elements 2 and 3 unless actual damages are sought. If actual damages are
sought, combine CACI No. 3067, Unruh Civil Rights Act—Damages, and CACI No.
3068, Ralph Act—Damages and Penalty, to recover damages under both subsections
(a) and (b) of section 52.
It has been the rule that in a wrongful detention case, the coercion required to
support a Bane Act claim must be coercion independent from that inherent in the
wrongful detention itself. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th
968, 981 [159 Cal.Rptr.3d 204].) One court, however, did not apply this rule in a
wrongful arrest case. The court instead held that the “threat, intimidation or
coercion” element requires a specific intent to violate protected rights. (Cornell v.
City & County of San Francisco (2017) 17 Cal.App.5th 766, 790–804 [225
Cal.Rptr.3d 356].) Element 2 expresses this requirement.
Sources and Authority
• Bane Act. Civil Code section 52.1.
• Remedies Under Bane Act. Civil Code section 52.
• “The Bane Act permits an individual to pursue a civil action for damages where
another person ‘interferes by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation, or coercion, with the exercise or enjoyment by
any individual or individuals of rights secured by the Constitution or laws of the
United States, or of the rights secured by the Constitution or laws of this state.’
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‘The essence of a Bane Act claim is that the defendant, by the specified
improper means (i.e., “threat[], intimidation or coercion”), tried to or did prevent
the plaintiff from doing something he or she had the right to do under the law or
to force the plaintiff to do something that he or she was not required to do under
the law.’ ” (King v. State of California (2015) 242 Cal.App.4th 265, 294 [195
Cal.Rptr.3d 286], internal citation omitted.)
• “[S]ection 52.1, was enacted a decade [after the Ralph Act] as part of Assembly
Bill No. 63 (1987–1988 Reg. Sess.) (Assembly Bill No. 63) and is known as the
Tom Bane Civil Rights Act. It was intended to supplement the Ralph Civil
Rights Act as an additional legislative effort to deter violence. The stated
purpose of the bill was ‘to fill in the gaps left by the Ralph Act’ by allowing an
individual to seek relief to prevent the violence from occurring before it was
committed and providing for the filing of criminal charges.” (Stamps v. Superior
Court (2006) 136 Cal.App.4th 1441, 1447 [39 Cal.Rptr.3d 706], internal citation
omitted.)
• “The Legislature enacted section 52.1 to stem a tide of hate crimes.” (Jones v.
Kmart Corp. (1998) 17 Cal.4th 329, 338 [70 Cal.Rptr.2d 844, 949 P.2d 941],
internal citation omitted.)
• “[T]o state a cause of action under section 52.1 there must first be violence or
intimidation by threat of violence. Second, the violence or threatened violence
must be due to plaintiff’s membership in one of the specified classifications set
forth in Civil Code section 51.7 or a group similarly protected by constitution or
statute from hate crimes.” (Gabrielle A. v. County of Orange (2017) 10
Cal.App.5th 1268, 1290 [217 Cal.Rptr.3d 275].)
• “The plaintiff must show ‘the defendant interfered with or attempted to interfere
with the plaintiff’s legal right by threatening or committing violent acts.’ ”
(Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395 [218
Cal.Rptr.3d 38].)
• “However, the statutory language does not limit its application to hate crimes.
Notably, the statute does not require a plaintiff to allege the defendant acted with
discriminatory animus or intent based upon the plaintiff’s membership in a
protected class of persons.” (Shoyoye, supra, 203 Cal.App.4th at p. 956.)
• “The phrase ‘under color of law’ indicates, without doubt, that the Legislature
intended to include law enforcement officers within the scope of Section 52.1 if
the requisites of the statute are otherwise met.” (Cornell, supra, 17 Cal.App.5th
at p. 800.)
• “Civil Code section 52.1, the Bane Act civil counterpart of [Penal Code] section
422.6, recognizes a private right of action for damages and injunctive relief for
interference with civil rights.” (In re M.S. (1995) 10 Cal.4th 698, 715 [42
Cal.Rptr.2d 355, 896 P.2d 1365].)
• “[T]he Bane Act requires that the challenged conduct be intentional.” (Simmons
v. Superior Court (2016) 7 Cal.App.5th 1113, 1125 [212 Cal.Rptr.3d 884].)
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• “[S]ection 52.1 does require an attempted or completed act of interference with a
legal right, accompanied by a form of coercion.” (Jones, supra, 17 Cal.4th at p.
334.)
• “The statutory framework of section 52.1 indicates that the Legislature meant the
statute to address interference with constitutional rights involving more egregious
conduct than mere negligence.” (Shoyoye, supra, 203 Cal.App.4th at p. 958.)
• Section 52.1 is not a remedy to be used against private citizens for violations of
rights that apply only to the state or its agents. (Jones, supra, 17 Cal.4th at p.
337 [right to be free from unreasonable search and seizure].)
• “ ‘[W]here coercion is inherent in the constitutional violation alleged, . . . the
statutory requirement of “threats, intimidation, or coercion” is not met. The
statute requires a showing of coercion independent from the coercion inherent in
the wrongful detention itself.’ ” (Simmons, supra, 7 Cal.App.5th at p. 1126.)
• Assembly Bill 2719 (Stats. 2000, ch. 98) abrogated the holding of Boccato v.
City of Hermosa Beach (1994) 29 Cal.App.4th 1797 [35 Cal.Rptr.2d 282], which
held that a plaintiff was required to be a member of a specified protected class in
order to bring an action under section 52.1: “It is the intent of the Legislature in
enacting this act to clarify that an action brought pursuant to Section 52.1 of the
Civil Code does not require the individual whose rights are secured by the
Constitution or laws of the United States, or of the rights secured by the
Constitution or laws of California, to be a member of a protected class identified
by its race, color, religion, or sex, among other things.”
• “Subdivision (j) of Civil Code section 52.1 provides that speech alone is
insufficient to support such an action, except upon a showing that the speech
itself threatens violence against a specific person or group of persons, the person
or group of persons against whom the speech is directed ‘reasonably fears that,
because of the speech, violence will be committed against them or their property
and that the person threatening violence has the apparent ability to carry out the
threat.’ . . . The presence of the express ‘reasonable fear’ element, in addition to
the ‘apparent ability’ element, in Civil Code section 52.1, governing civil actions
for damages, most likely reflects the Legislature’s determination [that] a
defendant’s civil liability should depend on the harm actually suffered by the
victim.” (In re M.S., supra, 10 Cal.4th at p. 715, internal citation omitted.)
• “[Q]ualified immunity of the kind applied to actions brought under section 1983
does not apply to actions brought under Civil Code section 52.1.” (Venegas v.
County of Los Angeles (2007) 153 Cal.App.4th 1230, 1246 [63 Cal.Rptr.3d
741].)
• “[A] wrongful detention that is ‘accompanied by the requisite threats,
intimidation, or coercion’—‘coercion independent from the coercion inherent in
the wrongful detention itself’ that is ‘deliberate or spiteful’—is a violation of the
Bane Act.” (Bender, supra, 217 Cal.App.4th at p. 981, internal citations omitted.)
• “Here, there clearly was a showing of coercion separate and apart from the
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coercion inherent in an unlawful arrest. [Defendant officer] wrongfully detained
and arrested plaintiff, because he had no probable cause to believe plaintiff had
committed any crime. But, in addition, [defendant officer] deliberately and
unnecessarily beat and pepper sprayed the unresisting, already handcuffed
plaintiff. That conduct was not the coercion that is inherent in a wrongful
arrest.” (Bender, supra, 217 Cal.App.4th at p. 979, original italics.)
• “We acknowledge that some courts have read Shoyoye as having announced
‘independen[ce] from [inherent coercion]’ as a requisite element of all Section
52.1 claims alleging search-and-seizure violations, but we think those courts
misread the statute as well as the import of Venegas. By its plain terms, Section
52.1 proscribes any ‘interfere[nce] with’ or attempted ‘interfere[nce] with’
protected rights carried out ‘by threat, intimidation or coercion.’ Nothing in the
text of the statute requires that the offending ‘threat, intimidation or coercion’ be
‘independent’ from the constitutional violation alleged.” (Cornell, supra, 17
Cal.App.5th at pp. 799–800.)
• “[W]here, as here, an unlawful arrest is properly pleaded and proved, the
egregiousness required by Section 52.1 is tested by whether the circumstances
indicate the arresting officer had a specific intent to violate the arrestee’s right to
freedom from unreasonable seizure, not by whether the evidence shows
something beyond the coercion ‘inherent’ in the wrongful detention.” (Cornell,
supra, 17 Cal.App.5th at pp. 801–802.)
• “[T]his test ‘ “essentially sets forth two requirements for a finding of ‘specific
intent’ . . . The first is a purely legal determination. Is the . . . right at issue
clearly delineated and plainly applicable under the circumstances of the case? If
the trial judge concludes that it is, then the jury must make the second, factual,
determination. Did the defendant commit the act in question with the particular
purpose of depriving the citizen victim of his enjoyment of the interests
protected by that . . . right? If both requirements are met, even if the defendant
did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a
matter of law to have acted [with the requisite specific intent]—i.e., ‘in reckless
disregard of constitutional [or statutory] prohibitions or guarantees.’ ” ’ ”
(Cornell, supra, 17 Cal.App.5th at p. 803.)
• “Civil Code section 52.1 does not address the immunity established by section
844.6 [public entity immunity for injury to prisoners]. Nothing in Civil Code
section 52.1 indicates an intent to abrogate this specific immunity provision. The
immunity that it creates therefore applies to [plaintiff]’s Bane Act claim.”
(Towery v. State of California (2017) 14 Cal.App.5th 226, 234 [221 Cal.Rptr.3d
692].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et
seq.
Cheng et al., Cal. Fair Housing and Public Accommodations § 14:5 (The Rutter
Group)
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California Civil Practice: Civil Rights Litigation §§ 3:1–3:15 (Thomson Reuters)
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Employment
Opportunity Laws, § 40.12[2] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117A, Civil Rights: Interference
With Civil Rights by Threats, Intimidation, Coercion, or Violence, § 117A.11
(Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§§ 35.01, 35.20 et seq. (Matthew Bender)
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3067. Unruh Civil Rights Act—Damages (Civ. Code, §§ 51, 52(a))
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant], you also must decide how
much money will reasonably compensate [him/her/nonbinary pronoun] for
the harm. This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun]
damages. However, [name of plaintiff] does not have to prove the exact
amount of the harm or the exact amount of damages that will provide
reasonable compensation for the harm. You must not speculate or guess
in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
[Insert item(s) of claimed harm.]
In addition, you may award [name of plaintiff] up to three times the
amount of [his/her/nonbinary pronoun] actual damages as a penalty
against [name of defendant].
New September 2003; Revised June 2012; Renumbered from CACI No. 3026
December 2012; Revised June 2013
Directions for Use
Give this instruction for violations of the Unruh Civil Rights Act in which actual
damages are claimed. (See Civ. Code, § 51; CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements.) This instruction may also be given for claims
under Civil Code section 51.5 (see CACI No. 3061, Discrimination in Business
Dealings—Essential Factual Elements) and Civil Code section 51.6 (see CACI No.
3062, Gender Price Discrimination—Essential Factual Elements). If the only claim
is for statutory damages of $4,000 (see Civ. Code, § 52(a)), this instruction is not
needed. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133,
707 P.2d 195] [Unruh Act violations are per se injurious; Civ. Code, § 52(a)
provides for minimum statutory damages for every violation regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].)
See the instructions in the Damages series (CACI Nos. 3900 et seq.) for additional
instructions on actual damages and punitive damages. Note that the statutory
minimum amount of recovery for a plaintiff is $4,000 in addition to actual damages.
If the verdict is for less than that amount, the judge should modify the verdict to
reflect the statutory minimum.
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Sources and Authority
• Remedies Under Unruh Act and Other Civil Rights Statutes. Civil Code section
52(a).
• “[B]y passing the Unruh Act, the Legislature established that arbitrary sex
discrimination by businesses is per se injurious. Section 51 provides that all
patrons are entitled to equal treatment. Section 52 provides for minimum
statutory damages . . . for every violation of section 51, regardless of the
plaintiff’s actual damages.” (Koire, supra, 40 Cal.3d at p. 33, original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1030, 1715–1724
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 994,
995
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-G, Unruh Civil
Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.15 (Matthew Bender)
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3068. Ralph Act—Damages and Penalty (Civ. Code, §§ 51.7, 52(b))
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant], you must award the
following:
1. Actual damages sufficient to reasonably compensate [name of
plaintiff] for the harm;
2. A civil penalty of $25,000; and
3. Punitive damages.
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun]
actual damages. However, [name of plaintiff] does not have to prove the
exact amount of the harm or the exact amount of damages that will
provide reasonable compensation for the harm. You must not speculate
or guess in awarding damages.
The following are the specific items of actual damages claimed by [name
of plaintiff]:
[Insert item(s) of claimed harm.]
New September 2003; Revised June 2012; Renumbered from CACI No. 3027
December 2012
Directions for Use
Give this instruction for violations of the Ralph Act. (See Civ. Code, § 51.7; CACI
No. 3063, Acts of Violence—Ralph Act—Essential Factual Elements, and CACI No.
3064, Threats of Violence—Ralph Act—Essential Factual Elements.) This instruction
may also be given for claims under Civil Code section 51.9 (see CACI No. 3065,
Sexual Harassment in Defined Relationship—Essential Factual Elements) with item
2 omitted. (See Civ. Code, § 52(b)(2).)
See the Damages series (CACI Nos. 3900 et seq.) for additional instructions on
actual damages and punitive damages. CACI No. 3942, Punitive
Damages—Individual Defendant—Bifurcated Trial (Second Phase), instructs the jury
on how to calculate the amount of punitive damages.
Sources and Authority
• Remedies Under Ralph Act. Civil Code section 52(b).
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1014,
1015
Chin, et al., California Practice Guide: Employment Litigation, Ch. 7-G, Unruh
Civil Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
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11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.15 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.48 (Matthew Bender)
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3069. Harassment in Educational Institution (Ed. Code, § 220)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
being subjected to harassment at school because of [his/her/nonbinary
pronoun] [specify characteristic, e.g., sexual orientation] and that [name of
defendant] is responsible for that harm. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] suffered harassment that was so severe,
pervasive, and offensive that it effectively deprived
[him/her/nonbinary pronoun] of the right of equal access to
educational benefits and opportunities;
2. That [name of defendant] had actual knowledge of that
harassment; and
3. That [name of defendant] acted with deliberate indifference in the
face of that knowledge.
[Name of defendant] acted with deliberate indifference if
[his/her/nonbinary pronoun/its] response to the harassment was clearly
unreasonable in light of all the known circumstances.
New April 2009; Renumbered from CACI No. 3028 December 2012
Directions for Use
This instruction does not include language that elaborates on what does or does not
constitute “deliberate indifference” beyond the broad standard of “clearly
unreasonable in light of all the known circumstances.” In Donovan v. Poway Unified
School Dist., the court noted that “deliberate indifference” will often be a fact-based
question for which bright line rules are ill-suited. However, the court noted
numerous examples from federal cases in which the standard was applied. The
failure of school officials to undertake a timely investigation of a complaint of
discrimination may amount to deliberate indifference. School officials also must take
timely and reasonable measures to end known harassment. A response may be
clearly unreasonable if a school official ignores a complaint of discrimination or if
the initial measures chosen to respond to the harassment are ineffective. (Donovan v.
Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 611 [84 Cal.Rptr.3d 285].)
Any of these factors that are applicable to the facts of the case may be added at the
end of the instruction.
Sources and Authority
• Harassment in Educational Institution. Education Code section 201.
• Discrimination in Educational Institutions. Education Code section 220.
• Duty to Inform of Remedies. Education Code section 262.3(b).
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• “We conclude that to prevail on a claim under section 220 for peer sexual
orientation harassment, a plaintiff must show (1) he or she suffered “severe,
pervasive and offensive” harassment that effectively deprived the plaintiff of the
right of equal access to educational benefits and opportunities; (2) the school
district had ‘actual knowledge’ of that harassment; and (3) the school district
acted with ‘deliberate indifference’ in the face of such knowledge. We further
conclude that from the words of section 262.3, subdivision (b), as well as from
other markers of legislative intent, money damages are available in a private
enforcement action under section 220.” (Donovan, supra, 167 Cal.App.4th at p.
579.)
• “Like Title IX, . . . enforcement of the Education Code’s antidiscrimination law
rests on the assumption of ‘actual notice’ to the funding recipient. . . . [¶¶] We
decline to adopt a liability standard for damages under section 220 based on
principles of respondeat superior and/or constructive notice, particularly in light
of the circumstances presented here when the claim of discrimination is not, for
example, based on an official policy of the District, but is instead the result of
peer sexual orientation harassment and the District’s response (or lack thereof) to
such harassment. . . . [N]egligence principles should not apply to impose
liability under a statutory scheme when administrative enforcement of that
scheme contemplates actual notice to the funding recipient, with an opportunity
to take corrective action before a private action may lie. By requiring actual
notice, we ensure liability for money damages under section 220 is based on a
funding recipient’s own misconduct, determined by its own deliberate
indifference to known acts of harassment.” (Donovan, supra, 167 Cal.App.4th at
pp. 604–605, original italics, internal citations omitted.)
• “The decisions of federal courts interpreting Title IX provide a meaningful
starting point to determine whether the response of defendants here amounted to
deliberate indifference under section 220. Under federal law, deliberate
indifference is a ‘ “very high standard.” ’ Actions that in hindsight are
‘unfortunate’ or even ‘imprudent’ will not suffice.” (Donovan, supra, 167
Cal.App.4th at p. 610, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 869,
870
11 California Forms of Pleading and Practice, Ch. 112, Civil Rights: Government-
Funded Programs and Activities, §§ 112.11, 112.16 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.32A (Matthew Bender)
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3070. Disability Discrimination—Access Barriers to Public
Facility—Construction-Related Accessibility Standards
Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56)
[Name of defendant] is the owner of [a/an] [e.g., restaurant] named [name
of business] that is open to the public. [Name of plaintiff] is a disabled
person who [specify disability that creates accessibility problems].
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was denied full
and equal access to [name of defendant]’s business on a particular
occasion because of physical barriers. To establish this claim, [name of
plaintiff] must prove both of the following:
1. That [name of defendant]’s business had barriers that violated
construction-related accessibility standards in that [specify
barriers]; and [either]
2. [That [name of plaintiff] personally encountered the violation on a
particular occasion.]
2. [or]
2. [That [name of plaintiff] was deterred from accessing [name of
defendant]’s business on a particular occasion.]
[A violation that [name of plaintiff] personally encountered may be
sufficient to cause a denial of full and equal access if [he/she/nonbinary
pronoun] experienced difficulty, discomfort, or embarrassment because of
the violation.]
[To prove that [name of plaintiff] was deterred from accessing [name of
defendant]’s business on a particular occasion, [he/she/nonbinary pronoun]
must prove both of the following:
1. That [name of plaintiff] had actual knowledge of one or more
violations that prevented or reasonably dissuaded
[him/her/nonbinary pronoun] from accessing [name of defendant]’s
business, which [name of plaintiff] intended to patronize on a
particular occasion.
2. That the violation(s) would have actually denied [name of plaintiff]
full and equal access if [he/she/nonbinary pronoun] had tried to
patronize [name of defendant]’s business on that particular
occasion.]
New December 2014; Revised December 2016, May 2020
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Directions for Use
Use this instruction if a plaintiff seeks statutory damages based on a construction-
related accessibility claim under the Disabled Persons Act (DPA) or the Unruh Civil
Rights Act. (See Civ. Code, § 55.56(a).) Do not give this instruction if actual
damages are sought. CACI No. 3067, Unruh Civil Rights Act—Damages, may be
given for claims for actual damages under the Unruh Act and adapted for use under
the DPA.
The DPA provides disabled persons with rights of access to public facilities. (See
Civ. Code, §§ 54, 54.1.) Under the DPA, a disabled person who encounters barriers
to access at a public accommodation may recover minimum statutory damages for
each particular occasion on which the disabled person was denied access. (Civ.
Code, §§ 54.3, 55.56(f).) However, the Construction Related Accessibility Standard
Act (CRASA) requires that before statutory damages may be recovered, the disabled
person either have personally encountered the violation on a particular occasion or
have been deterred from accessing the facility on a particular occasion. (See Civ.
Code, § 55.56(b).) Also, specified violations are deemed to be merely technical and
are presumed to not cause a person difficulty, discomfort, or embarrassment for the
purpose of an award of minimum statutory damages. (See Civ. Code, § 55.56(e).)
Give either or both options for element 2 depending on whether the plaintiff
personally encountered the barrier or was deterred from patronizing the business
because of awareness of the barrier. The next-to-last paragraph is explanatory of the
first option, and the last paragraph is explanatory of the second option.
Sources and Authority
• Disabled Persons Act: Right of Access to Public Facilities. Civil Code sections
54, 54.1.
• Action for Interference With Admittance to or Enjoyment of Public Facilities.
Civil Code section 54.3.
• Construction-Related Accessibility Standard Act. Civil Code section 55.56.
• “Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54 to
55.3, is commonly referred to as the “Disabled Persons Act,” although it has no
official title. Sections 54 and 54.1 generally guarantee individuals with
disabilities equal access to public places, buildings, facilities and services, as
well as common carriers, housing and places of public accommodation, while
section 54.3 specifies remedies for violations of these guarantees, including a
private action for damages.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,
674 fn. 8 [94 Cal.Rptr.3d 685, 208 P.3d 623].)
• “[L]egislation (applicable to claims filed on or after Jan. 1, 2009 ([Civ. Code,]
§ 55.57)) restricts the availability of statutory damages under sections 52 and
54.3, permitting their recovery only if an accessibility violation actually denied
the plaintiff full and equal access, that is, only if ‘the plaintiff personally
encountered the violation on a particular occasion, or the plaintiff was deterred
from accessing a place of public accommodation on a particular occasion’
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(§ 55.56, subd. (b)). It also limits statutory damages to one assessment per
occasion of access denial, rather than being based on the number of accessibility
standards violated. (Id., subd. (e).)” (Munson, supra, 46 Cal.4th at pp. 677−678.)
• “ ‘[S]ection 54.3 imposes the standing requirement that the plaintiff have
suffered an actual denial of equal access before any suit for damages can be
brought. . . . [A] plaintiff cannot recover damages under section 54.3 unless the
violation actually denied him or her access to some public facility. [¶] Plaintiff’s
attempt to equate a denial of equal access with the presence of a violation of
federal or state regulations would nullify the standing requirement of section
54.3, since any disabled person could sue for statutory damages whenever he or
she encountered noncompliant facilities, regardless of whether that lack of
compliance actually impaired the plaintiff’s access to those facilities. Plaintiff’s
argument would thereby eliminate any distinction between a cause of action for
equitable relief under section 55 and a cause of action for damages under section
54.3.’ ” (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1223 [99 Cal.Rptr.3d
746].)
• “We do not read Reycraft and Urhausen for the proposition that plaintiffs may
not sue someone other than the owner or operator of the public facility described
in section 54, for violating a plaintiff’s rights under the DPA. A defendant’s
ability to control a particular location may ultimately be relevant to the question
of liability, that is, whether the defendant interfered with the plaintiff’s admission
to or enjoyment of a public facility. But nothing in the language of section 54.3
suggests that damages may not be recovered against nonowners or operators. To
the contrary, section 54.3 broadly and plainly provides: ‘[a]ny person or persons,
firm or corporation who denies or interferes with admittance to or enjoyment of
the public facilities as specified in [s]ections 54 and 54.1 or otherwise interferes
with the rights of an individual with a disability under [s]ections 54, 54.1 and
54.2 is liable for . . . actual damages . . . .’ ” (Ruiz v. Musclewood Investment
Properties, LLC (2018) 28 Cal.App.5th 15, 24 [238 Cal.Rptr.3d 835].)
• “In our view, Reycraft does not require that a plaintiff who sues for interference
of his rights must present himself to defendant’s business, with the intent to
utilize defendant’s services. Instead, a plaintiff who seeks damages for a
violation of section 54.3 must establish that he ‘presented himself’ to a ‘public
place’ with the intent of ‘utilizing its services in the manner in which those . . .
services are typically offered to the public and was actually denied’ admission or
enjoyment (or had his admission or enjoyment interfered with) on a particular
occasion. Here, as alleged, plaintiff presented himself at a public place (the
sidewalk) with the intent of using it in the manner it is typically offered to the
public (walking on it for travel), and actually had his enjoyment interfered with
on six occasions. Plaintiff therefore has standing to sue for damages.” (Ruiz,
supra, 28 Cal.App.5th at p. 24, original italics, internal citation omitted.)
• “Like the Unruh Civil Rights Act, the DPA incorporates the ADA to the extent
that ‘A violation of the right of an individual under the Americans with
Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this
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section.’ (Civ. Code, § 54, subd. (c).” (Baughman v. Walt Disney World Co.
(2013) 217 Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1073
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.36 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
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3071. Retaliation for Refusing to Authorize Disclosure of Medical
Information—Essential Factual Elements (Civ. Code, § 56.20(b))
[Name of plaintiff] claims that [name of defendant] discriminated against
[him/her/nonbinary pronoun] because [he/she/nonbinary pronoun] refused
to authorize disclosure of [his/her/nonbinary pronoun] medical
information to [name of defendant]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] asked [name of plaintiff] to sign an
authorization so that [name of defendant] could obtain medical
information about [name of plaintiff] from [his/her/nonbinary
pronoun] health care providers;
2. That [name of plaintiff] refused to sign the authorization;
3. That [name of defendant] [specify retaliatory acts, e.g., terminated
plaintiff’s employment];
4. That [name of plaintiff]’s refusal to sign the authorization was a
substantial motivating reason for [name of defendant]’s decision to
[e.g., terminate plaintiff’s employment];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Even if [name of plaintiff] proves all of the above, [name of defendant]’s
conduct was not unlawful if [name of defendant] proves that the lack of
the medical information made it necessary to [e.g., terminate plaintiff’s
employment].
New June 2015; Revised May 2020
Directions for Use
An employer may not discriminate against an employee in terms or conditions of
employment due to the employee’s refusal to sign an authorization to release the
employee’s medical information to the employer. (Civ. Code, § 56.20(b).). However,
an employer may take any action that is necessary in the absence of the medical
information due to the employee’s refusal to sign an authorization. (Ibid.)
Give this instruction if an employee claims that the employer retaliated against the
employee for refusing to authorize release of medical information The employee has
the burden of proving a causal link between the refusal to authorize and the
employer’s retaliatory actions. The employer then has the burden of proving
necessity. (See Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, 453
[177 Cal.Rptr.3d 145].) If necessary, the instruction may be expanded to define
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“medical information.” (See Civ. Code, § 56.05(j) [“medical information” defined].)
The statute requires that the employer’s retaliatory act be “due to” the employee’s
refusal to release the medical information. (Civ. Code, § 56.20(b).) One court has
instructed the jury that the refusal to release must be a “motivating reason” for the
retaliation. (See Kao, supra, 229 Cal.App.4th at p. 453.) With regard to the
causation standard under the Fair Employment and Housing Act, the California
Supreme Court has held that the protected activity must have been a substantial
motivating reason. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Sources and Authority
• Confidentiality of Medical Information Act. Civil Code section 56 et seq.
• Employee’s Refusal to Authorize Release of Medical Records to Employer. Civil
Code section 56.20(b).
• “An employer ‘discriminates’ against an employee in violation of section 56.20,
subdivision (b), if it improperly retaliates against or penalizes an employee for
refusing to authorize the employee’s health care provider to disclose confidential
medical information to the employer or others (see Civ. Code, § 56.11), or for
refusing to authorize the employer to disclose confidential medical information
relating to the employee to a third party (see Civ. Code, § 56.21).” (Loder v.
City of Glendale (1997) 14 Cal.4th 846, 861 [59 Cal. Rptr. 2d 696, 927 P.2d
1200], original italics.)
• “[T]he jury was instructed that if [plaintiff] proved his refusal to authorize
release of confidential medical information for the FFD [fitness for duty
examination] was ‘the motivating reason for [his] discharge,’ [defendant]
‘nevertheless avoids liability by showing that . . . its decision to discharge
[plaintiff] was necessary because [plaintiff] refused to take the FFD
examination.’ ” (Kao, supra, 229 Cal.App.4th at p. 453.)
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses § 540
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.202
(Matthew Bender)
3072–3099. Reserved for Future Use
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VF-3000. Violation of Federal Civil Rights—In General (42 U.S.C.
§ 1983)
We answer the questions submitted to us as follows:
1. Did [name of defendant] [intentionally/[other applicable state of
mind]] [insert wrongful act]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] violate [name of plaintiff]’s right [insert
right, e.g., “of privacy”] while acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s [insert wrongful act] a substantial factor
in causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3001. Public Entity Liability (42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. Did the [name of local governmental entity] have an official [policy/
custom] [specify policy or custom]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of local governmental entity] know, or should it have
been obvious to it, that this official [policy/custom] was likely to
result in a deprivation of the right [specify right violated]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of offıcer or employee] an [officer/employee/[other]] of
[name of local governmental entity]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of offıcer or employee] [intentionally/[insert other
applicable state of mind]] [insert conduct allegedly violating
plaintiff’s civil rights]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of offıcer or employee]’s conduct violate [name of
plaintiff]’s right [specify right]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of offıcer or employee] act because of this official
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[policy/custom]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011; Renumbered
from CACI No. VF-3005 December 2012; Revised December 2016
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Directions for Use
This verdict form is based on CACI No. 3001, Local Government Liability—Policy
or Custom—Essential Factual Elements. It should be given with CACI No. VF-
3000, Violation of Federal Civil Rights—In General, to impose liability on the
governmental entity for the acts of its officer or employee.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3002. Public Entity Liability—Failure to Train (42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. Was [name of local governmental entity]’s training program
inadequate to train its [officers/employees] to properly handle
usual and recurring situations?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of local governmental entity] know[, or should it have
been obvious to it,] that the inadequate training program was
likely to result in a deprivation of the right [specify right
violated]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of offıcer or employee] violate [name of plaintiff]’s right
[specify right]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the failure to provide adequate training the cause of the
deprivation of [name of plaintiff]’s right [specify right]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2011; Renumbered from CACI No. VF-3006 December 2012; Revised December
2016
Directions for Use
This verdict form is based on CACI No. 3003, Local Government Liability—Failure
to Train—Essential Factual Elements. It should be given with CACI No. VF-3000,
Violation of Federal Civil Rights—In General, to impose liability on the
governmental entity for the acts of its officer or employee.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
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forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3003–VF-3009. Reserved for Future Use
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VF-3010. Excessive Use of Force—Unreasonable Arrest or Other
Seizure (42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. Did [name of defendant] use excessive force in [arresting/detaining]
[name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s use of excessive force a substantial
factor in causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3001 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3020, Excessive Use of
Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3011. Unreasonable Search—Search With a Warrant (42 U.S.C.
§ 1983)
We answer the questions submitted to us as follows:
1. Did [name of defendant] conduct an unreasonable search of [name
of plaintiff]’s [person/home/automobile/office/[insert other]]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s unreasonable search a substantial
factor in causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3002 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3022, Unreasonable Search—Search With
a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3012. Unreasonable Search or Seizure—Search or Seizure
Without a Warrant (42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. Did [name of defendant] [search/seize] [name of plaintiff]’s [person/
home/automobile/office/property/[insert other]] without a warrant?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s [search/seizure] a substantial factor in
causing harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3003 December 2012; Revised December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search or
Seizure—Search or Seizure Without a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3013. Unreasonable Search—Search Without a
Warrant—Affirmative Defense—Search Incident to Lawful Arrest
(42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. Did [name of defendant] search [name of plaintiff]’s [person/home/
automobile/office/[insert other]] without a warrant?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant] acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the search conducted as part of a lawful arrest of [name of
plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, skip questions 4 and 5 and answer question 6.
4. Did [name of defendant] search only [name of plaintiff] and the
area within which [name of plaintiff] might have gained possession
of a weapon or might have destroyed or hidden evidence?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, skip question 5 and answer question 6.
5. Was the search reasonable under the circumstances?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s search a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
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6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3004 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search or
Seizure—Search or Seizure Without a Warrant—Essential Factual Elements, and
CACI No. 3024, Affırmative Defense—Search Incident to Lawful Arrest. This form
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can be modified if another affirmative defense is at issue (see CACI No. 3025,
Affırmative Defense—Consent to Search, and CACI No. 3026, Affırmative
Defense—Exigent Circumstances).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3014–VF-3019. Reserved for Future Use
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VF-3020. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Excessive Force (42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. Did [name of defendant] use force against [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the force excessive?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant] acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s use of excessive force a substantial
factor in causing harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011; Renumbered
from CACI No. VF-3007 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3042, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Excessive Force.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3021. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Substantial Risk of Serious Harm (42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. While imprisoned, [describe violation that created risk of serious
harm, e.g., was [name of plaintiff] placed in a cell block with rival
gang members]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant]’s conduct create a substantial risk of
serious harm to [name of plaintiff]’s health or safety?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] know that [his/her/nonbinary pronoun]
conduct created a substantial risk of serious harm to [name of
plaintiff]’s health or safety?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was there a reasonable justification for the conduct?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant] acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011; Renumbered
from CACI No. VF-3008 December 2012; Revised June 2015, December 2016
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Directions for Use
This verdict form is based on CACI No. 3040, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Substantial Risk of Serious Harm.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3022. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care (42 U.S.C. § 1983)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] have a serious medical need?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know that [name of plaintiff] faced a
substantial risk of serious harm if [his/her/nonbinary pronoun]
medical need went untreated?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] consciously disregard the risk by not
taking reasonable steps to treat [name of plaintiff]’s medical need?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant] acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s deliberate indifference a substantial
factor in causing harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3009 December 2012; Revised June 2014, June 2015, December 2016
Directions for Use
This verdict form is based on CACI No. 3041, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Medical Care.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
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If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3023. Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Deprivation of Necessities
We answer the questions submitted to us as follows:
1. While imprisoned, was [name of plaintiff] deprived of [describe
deprivation, e.g., clothing]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was this deprivation sufficiently serious in that it denied [name of
plaintiff] a minimal necessity of life?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant]’s conduct create a substantial risk of
serious harm to [name of plaintiff]’s health or safety?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] know that [his/her/nonbinary pronoun]
conduct created a substantial risk of serious harm to [name of
plaintiff]’s health or safety?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was there a reasonable justification for [name of defendant]’s
conduct?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant] acting or purporting to act in the
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performance of [his/her/nonbinary pronoun] official duties?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
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the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3043, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Deprivation of Necessities.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3024–VF-3029. Reserved for Future Use
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VF-3030. Unruh Civil Rights Act (Civ. Code, §§ 51, 52(a))
We answer the questions submitted to us as follows:
1. Did [name of defendant] [deny/aid or incite a denial
of/discriminate or make a distinction that denied] full and equal
[accommodations/advantages/facilities/privileges/services] to [name
of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [[name of defendant]’s perception of] [name of plaintiff]’s [sex/
race/color/religion/ancestry/national origin/medical
condition/genetic information/marital status/sexual orientation/
citizenship/primary language/immigration status/[insert other
actionable characteristic]] a substantial motivating reason for
[name of defendant]’s conduct?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Answer question 5.
5. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2012; Renumbered
from CACI No.VF-3010 December 2012; Revised June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 3060, Unruh Civil Rights Act—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff’s association with another is the basis for the claim, modify question
2 as in element 2 of CACI No. 3060.
Questions 3 and 4 may be omitted if only the statutory minimum of $4,000 damages
is sought. Harm is presumed for this amount. (See Civ. Code, § 52(a); Koire v.
Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195].)
The penalty in question 5 refers to the right of the jury to award a maximum of
three times the amount of actual damages but not less than $4,000. (Civ. Code,
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§ 52(a).) The judge should correct the verdict if the jury award goes over that limit.
Also, if the jury awards nothing or an amount less than $4,000 in question 5, the
judge should increase that award to $4,000 to reflect the statutory minimum.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3031. Discrimination in Business Dealings (Civ. Code, §§ 51.5,
52(a))
We answer the questions submitted to us as follows:
1. Did [name of defendant] [discriminate against/boycott/blacklist/
refuse to buy from/refuse to contract with/refuse to sell to/refuse
to trade with] [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [[name of defendant]’s perception of] [name of plaintiff]’s [sex/
race/color/religion/ancestry/national origin/disability/medical
condition/genetic information/marital status/sexual orientation/
citizenship/primary language/immigration status/[insert other
actionable characteristic]] a substantial motivating reason for
[name of defendant]’s conduct?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Answer question 5.
5. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2012; Renumbered
from CACI No. VF-3011 December 2012; Revised June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 3061, Discrimination in Business
Dealings—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If an alternative basis for the defendant’s alleged motivation is at issue, modify
question 2 as in element 2 of CACI No. 3061.
The award of a penalty in question 5 refers to the right of the jury to award a
maximum of three times the amount of actual damages but not less than $4,000.
(Civ. Code, § 52(a).) The judge should correct the verdict if the jury award goes
over that amount. Also, if the jury awards nothing or an amount less than $4,000 in
question 5, then the judge should increase that award to $4,000 to reflect the
statutory minimum.
It is possible that questions 3 and 4 may be omitted if only the statutory minimum
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$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3032. Gender Price Discrimination (Civ. Code, § 51.6)
We answer the questions submitted to us as follows:
1. Did [name of defendant] charge [name of plaintiff] more for
services of similar or like kind because of [his/her/nonbinary
pronoun] gender?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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Answer question 4.
4. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3012 December 2012; Revised June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 3062, Gender Price
Discrimination—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
The award of a penalty in question 4 refers to the right of the jury to award a
maximum of three times the amount of actual damages but not less than $4,000.
(See Civ. Code, § 52(a).), The judge should correct the verdict if the jury award
goes over that amount. Also, if jury awards nothing or an amount less than $4,000
in question 4 then the judge should increase that award to $4,000 to reflect the
statutory minimum.
It is possible that questions 2 and 3 may be omitted if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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VF-3032 CIVIL RIGHTS
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3033. Ralph Act (Civ. Code, § 51.7)
We answer the questions submitted to us as follows:
1. Did [name of defendant] [threaten/commit] violent acts against
[name of plaintiff] [or [his/her/nonbinary pronoun] property]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [[name of defendant]’s perception of] [name of plaintiff]’s
[race/color/religion/ancestry/national origin/political affiliation/sex/
sexual orientation/age/disability/citizenship/primary
language/immigration status/position in a labor dispute/[insert
other actionable characteristic]] a substantial motivating reason for
[name of defendant]’s conduct?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[3. Would a reasonable person in [name of plaintiff]’s position have
believed that [name of defendant] would carry out
[his/her/nonbinary pronoun] threats?
[3. Yes No
[3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
[4. Would a reasonable person in [name of plaintiff]’s position have
been intimidated by [name of defendant]’s conduct?
[4. Yes No
[4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
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the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
[7. What amount do you award as punitive damages?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010;
Renumbered from CACI No. VF-3013 December 2012; Revised June 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 3063, Acts of Violence—Ralph
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Act—Essential Factual Elements, and CACI No. 3064, Threats of Violence—Ralph
Act—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Include questions 3 and 4 in a case of threats of violence.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Punitive damages (question 7) are authorized by Civil Code section 52(b)(2). For
instructions on punitive damages, see instructions in the Damages series (CACI No.
3900 et seq.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3034. Sexual Harassment in Defined Relationship (Civ. Code,
§ 51.9)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] have a business, service, or professional
relationship with [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Did [name of defendant] make [sexual advances/sexual
solicitations/sexual requests/demands for sexual compliance/[insert
other actionable conduct]] to [name of plaintiff]?]
2. [or]
2. [Did [name of defendant] engage in [verbal/visual/physical] conduct
of a [sexual nature/hostile nature based on gender]?]
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct unwelcome and also pervasive
or severe?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of plaintiff] unable to easily end the relationship with
[name of defendant]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Has [name of plaintiff] suffered or will [he/she/nonbinary pronoun]
suffer [economic loss or disadvantage/personal injury/the violation
of a statutory or constitutional right] as a result of [name of
defendant]’s conduct?
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CIVIL RIGHTS VF-3034
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
[Answer question 7.
7. What amount do you award as punitive damages?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010; Renumbered
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from CACI No. VF-3014 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3065, Sexual Harassment in Defined
Relationship—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select either or both options for question 2 depending on the facts at issue.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances. For instructions on punitive damages, see
instructions in the Damages series (CACI No. 3900 et seq.).
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3035. Bane Act (Civ. Code, § 52.1)
We answer the questions submitted to us as follows:
1. Did [name of defendant] make threats of violence against [[name of
plaintiff]/ [or] [name of plaintiff]’s property]?
1. Yes No
1. [or]
1. Did [name of defendant] act violently against [[name of plaintiff]/
[and] [name of plaintiff]’s property]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant]’s threats cause [name of plaintiff] to
reasonably believe that if [he/she/nonbinary pronoun] exercised
[his/her/nonbinary pronoun] right [insert right, e.g., “to vote”]
[name of defendant] would commit violence against
[[him/her/nonbinary pronoun]/ [or] [his/her/nonbinary pronoun]
property] and that [name of defendant] had the apparent ability to
carry out the threat?
2. Yes No
2. [or]
2. Did [name of defendant] commit these acts of violence to [prevent
[name of plaintiff] from exercising [his/her/nonbinary pronoun]
right [insert right, e.g., “to vote”]/retaliate against [name of
plaintiff] for having exercised [his/her/nonbinary pronoun] right
[insert right]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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4. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
[Answer question 5.
5. What amount do you award as punitive damages?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from CACI
No. VF-3015 and Revised December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 3066, Bane Act—Essential Factual
Elements.
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The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the first option for elements 1 and 2 if the defendant has threatened violence.
Give the second option if the defendant actually committed violence.
Civil Code section 52(a) provides for damages up to three times actual damages but
a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act), 51.5, and
51.6. Civil Code section 52(b) provides for punitive damages for violations of Civil
Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of Section 52 mentions
the Bane Act or Civil Code section 52.1. Nevertheless, the Bane Act refers to
section 52. (See Civ. Code, § 52.1(c).) This reference would seem to indicate that
damages may be recovered under both subsections (a) and (b) of section 52. The
court should compute the damages under section 52(a) by multiplying actual
damages by three, and awarding $4,000 if the amount is less. Questions 5 addresses
punitive damages under section 52(b).
If no actual damages are sought, the $4,000 statutory minimum damages may be
awarded without proof of harm and causation. (See Koire v. Metro Car Wash (1985)
40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195].) In this case, only questions 1
and 2 need be answered.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3036–VF-3099. Reserved for Future Use
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ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT
3100. Financial Abuse—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.30)
3101. Financial Abuse—Decedent’s Pain and Suffering (Welf. & Inst. Code,
§ 15657.5)
3102A. Employer Liability for Enhanced Remedies—Both Individual and
Employer Defendants (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code,
§ 3294(b))
3102B. Employer Liability for Enhanced Remedies—Employer Defendant Only
(Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code, § 3294(b))
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57)
3104. Neglect—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3105. Reserved for Future Use
3106. Physical Abuse—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.63)
3107. Physical Abuse—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657)
3108. Reserved for Future Use
3109. Abduction—Essential Factual Elements (Welf. & Inst. Code, § 15610.06)
3110. Abduction—Enhanced Remedies Sought (Welf. & Inst. Code, § 15657.05)
3111. Reserved for Future Use
3112. “Dependent Adult” Explained (Welf. & Inst. Code, § 15610.23)
3113. “Recklessness” Explained
3114. “Malice” Explained
3115. “Oppression” Explained
3116. “Fraud” Explained
3117. Financial Abuse—“Undue Influence” Explained
3118–3199. Reserved for Future Use
VF-3100. Financial Abuse—Individual or Individual and Employer Defendants
(Welf. & Inst. Code, §§ 15610.30, 15657.5(b))
VF-3101. Financial Abuse—Employer Defendant Only (Welf. & Inst. Code,
§§ 15610.30, 15657.5(b))
VF-3102. Neglect—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.57, 15657; Civ. Code, § 3294(b))
VF-3103. Neglect—Employer Defendant Only (Welf. & Inst. Code, §§ 15610.57,
15657; Civ. Code, § 3294(b))
VF-3104. Physical Abuse—Individual or Individual and Employer Defendants
(Welf. & Inst. Code, §§ 15610.63, 15657; Civ. Code, § 3294(b))
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VF-3105. Physical Abuse—Employer Defendant Only (Welf. & Inst. Code,
§§ 15610.63, 15657; Civ. Code, § 3294(b))
VF-3106. Abduction—Individual or Individual and Employer Defendants (Welf. &
Inst. Code, §§ 15610.06, 15657.05; Civ. Code, § 3294(b))
VF-3107. Abduction—Employer Defendant Only (Welf. & Inst. Code,
§§ 15610.06, 15657.05; Civ. Code, § 3294(b))
VF-3108–VF-3199. Reserved for Future Use
Table A. Elder Abuse: Causes of Action, Remedies, and Employer Liability
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3100. Financial Abuse—Essential Factual Elements (Welf. & Inst.
Code, § 15610.30)
[Name of plaintiff] claims that [[name of individual defendant]/ [and] [name
of employer defendant]] violated the Elder Abuse and Dependent Adult
Civil Protection Act by taking financial advantage of [him/her/nonbinary
pronoun/[name of decedent]]. To establish this claim, [name of plaintiff]
must prove that all of the following are more likely to be true than not
true:
1. That [[name of individual defendant]/[name of employer defendant]’s
employee] [insert one of the following:]
1. [[took/hid/appropriated/obtained/ [or] retained] [name of plaintiff/
decedent]’s property;]
1. [or]
1. [assisted in [taking/hiding/appropriating/obtaining/ [or] retaining]
[name of plaintiff/decedent]’s property;]
2. That [name of plaintiff/decedent] was [65 years of age or older/a
dependent adult] at the time of the conduct;
3. That [[name of individual defendant]/[name of employer defendant]’s
employee] [[took/hid/appropriated/obtained/ [or] retained]/assisted
in [taking/hiding/appropriating/obtaining/ [or] retaining]] the
property [for a wrongful use/ [or] with the intent to defraud/ [or]
by undue influence];
4. That [name of plaintiff/decedent] was harmed; and
5. That [[name of individual defendant]’s/[name of employer
defendant]’s employee’ s] conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[One way [name of plaintiff] can prove that [[name of individual
defendant]/[name of employer defendant]’s employee]
[took/hid/appropriated/obtained/ [or] retained] the property for a
wrongful use is by proving that [[name of individual defendant]/[name of
employer defendant]’s employee] knew or should have known that [his/
her/nonbinary pronoun] conduct was likely to be harmful to [name of
plaintiff/decedent].
[[[Name of individual defendant]/[Name of employer defendant]’s employee]
[took/hid/appropriated/obtained/ [or] retained] the property if [name of
plaintiff/decedent] was deprived of the property by an agreement, gift,
will, [or] trust[, or] [specify other testamentary instrument] regardless of
whether the property was held by [name of plaintiff/decedent] or by [his/
her/nonbinary pronoun] representative.]
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New September 2003; Revised June 2005, October 2008, April 2009, June 2010,
December 2013, June 2014
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act by the victim of elder financial abuse, or by
the survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage) in the Damages series. Plaintiffs who
are suing for their decedent’s pain and suffering should also use CACI No. 3101,
Financial Abuse—Decedent’s Pain and Suffering.
If the individual responsible for the financial abuse is a defendant in the case, use
“[name of individual defendant]” throughout. If only the individual’s employer is a
defendant, use “[name of employer defendant]’s employee” throughout.
To recover compensatory damages, attorney fees, and costs against the employer
under a theory of vicarious liability, see instructions in the Vicarious Responsibility
series (CACI No. 3700 et seq.).
If “for a wrongful use” is selected in element 3, give the next-to-last optional
paragraph on appropriate facts. This is not the exclusive manner of proving
wrongful conduct under the statute. (See Welf. & Inst. Code, § 15610.30(b).)
If “by undue influence” is selected in element 3, also give CACI No. 3117,
Financial Abuse—“Undue Influence” Explained.
Include the last optional paragraph if the elder was deprived of a property right by
an agreement, donative transfer, or testamentary bequest. (See Welf. & Inst. Code,
§ 15610.30(c).)
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Abuse of Elder or Dependent Adult. Welfare and Institutions Code section
15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Financial Abuse” Defined. Welfare and Institutions Code section 15610.30.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “The Legislature enacted the Act to protect elders by providing enhanced
remedies to encourage private, civil enforcement of laws against elder abuse and
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neglect. An elder is defined as ‘any person residing in this state, 65 years of age
or older.’ The proscribed conduct includes financial abuse. The financial abuse
provisions are, in part, premised on the Legislature’s belief that in addition to
being subject to the general rules of contract, financial agreements entered into
by elders should be subject to special scrutiny.” (Bounds v. Superior Court
(2014) 229 Cal.App.4th 468, 478 [177 Cal.Rptr.3d 320], internal citations
omitted.)
• “The probate court cited Welfare and Institutions Code section 15610.30 to
impose financial elder abuse liability as to plaintiffs’ first cause of action for
fiduciary abuse of an elder. This liability is supported by the court’s findings that
‘[decedent] did not know the extent of [defendant’s] spending,’ and that ‘[w]hile
it is not uncommon for a spouse to spend money or purchase items of which the
other is unaware, and the line between such conduct and financial abuse is not
always clear, what [defendant] did in this case went well beyond the line of
reasonable conduct and constituted financial abuse,’ and the court’s further
conclusion that much of defendant’s credit card spending and writing herself
checks from decedent’s bank account during the marriage amounted to financial
abuse.” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1356 [167 Cal.Rptr.3d 50].)
• “[T]he Legislature enacted the Act, including the provision prohibiting a taking
by undue influence, to protect elderly individuals with limited or declining
cognitive abilities from overreaching conduct that resulted in a deprivation of
their property rights. To require the victim of financial elder abuse to wait to file
suit until an agreement obtained through the statutorily proscribed conduct has
been performed would not further that goal.” (Bounds, supra, 229 Cal.App.4th at
p. 481.)
• “When the [operable pleading] was filed, former section 15610.30, subdivision
(a)(3) referred to the definition of undue influence found in Civil Code section
1575. However, in 2013, the Legislature amended section 15610.30, subdivision
(a)(3) to refer, instead, to a broader definition of undue influence found in the
newly enacted section 15610.70.” (Bounds, supra, 229 Cal.App.4th at p. 479.)
• “[A] party may engage in elder abuse by misappropriating funds to which an
elder is entitled under a contract.” (Paslay v. State Farm General Ins. Co. (2016)
248 Cal.App.4th 639, 656 [203 Cal.Rptr.3d 785].)
• “[U]nder subdivision (b) of section 15610.30, wrongful conduct occurs only
when the party who violates the contract actually knows that it is engaging in a
harmful breach, or reasonably should be aware of the harmful breach.” (Paslay,
supra, 248 Cal.App.4th at p. 658.)
• “The text of section 15610.30 is broad. It speaks not only of ‘taking’ real or
personal property, but also ‘secreting, appropriating, obtaining, or retaining’ such
property, and then, to capture the sense of all of these terms, goes on to use the
more expansive term ‘deprive[].’ Some of the terms used in section 15610.30 are
narrower than others; to ‘secret,’ for example, suggests hiding or concealment,
and to ‘retain’ or to ‘obtain’ suggests affirmatively acquiring possession of
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something. But we have no trouble concluding that the broadest of these
terms—the word ‘deprive’—in its ordinary meaning covers what the [elders]
have alleged. The trial court’s determination to the contrary relies heavily on the
fact that the [elders] gifted (or intend to gift) whatever money or assets they
transferred (or will transfer) to the Trust, but in our view this makes no
difference. The Act, as amended in 2008, expressly contemplates that liability
may flow from transfers made by ‘agreement, donative transfer, or testamentary
bequest . . . .’ ” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 12
Cal.App.5th 442, 460 [218 Cal.Rptr.3d 808], internal citations omitted.)
• “It is one thing to say that financial agreements entered into by elders should be
‘subject to special scrutiny’, but quite another to suggest, as [plaintiff] does, that
a lender has duties to a borrower who resides in this state and is ‘65 years of
age or older’ different from those it owes other borrowers.” (Hilliard v. Harbour
(2017) 12 Cal.App.5th 1006, 1015 [219 Cal.Rptr.3d 613].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 5:1, 7:2, 22:9–22:12
(The Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.23, 6.30–6.34
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,
§ 5.33[4] (Matthew Bender)
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3101. Financial Abuse—Decedent’s Pain and Suffering (Welf. &
Inst. Code, § 15657.5)
[Name of plaintiff] also seeks to recover damages for [name of decedent]’s
pain and suffering. To recover these damages, [name of plaintiff] must
also prove by clear and convincing evidence that [name of individual
defendant/[name of employer defendant]’s employee] acted with
[recklessness/oppression/fraud/ [or] malice] in committing the financial
abuse.
New September 2003; Revised June 2005, October 2008, April 2009
Directions for Use
Give this instruction along with CACI No. 3100, Financial Abuse—Essential
Factual Elements, if the plaintiff seeks survival damages for pain and suffering in
addition to conventional tort damages and attorney fees and costs. (See Welf. &
Inst. Code, § 15657.5.) Although one would not normally expect that financial abuse
alone would lead to a wrongful death action, the Legislature has provided this
remedy should the situation arise.
If the individual responsible for the neglect is a defendant in the case, use “[name of
individual defendant].” If only the individual’s employer is a defendant, use “[name
of employer defendant]’s employee.”
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Financial Abuse. Welfare and Institutions Code section
15657.5.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of
something more than negligence; he or she must show reckless, oppressive,
fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’
‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.
‘Recklessness’ refers to a subjective state of culpability greater than simple
negligence, which has been described as a ‘deliberate disregard’ of the ‘high
degree of probability’ that an injury will occur. Recklessness, unlike negligence,
involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to
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take precautions’ but rather rises to the level of a ‘conscious choice of a course
of action . . . with knowledge of the serious danger to others involved in it.’ ”
(Delaney, supra, 20 Cal.4th at pp. 31–32, internal citations omitted.)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence recklessness,
oppression, fraud, or malice in the commission of elder abuse. Even then, those
damages would be subject to the $250,000 cap placed by Civil Code section
3333.2, subdivision (b) for noneconomic damages against a health care provider.
In this limited circumstance, the decedent’s right to pain and suffering damages
would not die with him or her; the damages would be recoverable by a
survivor.” (ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18
Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 8:5–8:7, 8:15 (The Rutter
Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.23, 6.30–6.34, 6.45–6.47
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
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3102A. Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants (Welf. & Inst. Code, §§ 15657,
15657.05; Civ. Code, § 3294(b))
[Name of plaintiff] also claims that [name of employer defendant] is
responsible for [attorney fees and costs/ [and] [name of decedent]’s pain
and suffering before death]. To establish this claim, [name of plaintiff]
must prove by clear and convincing evidence [insert one or more of the
following four options:]
1. [That [name of individual defendant] was an officer, a director, or a
managing agent of [name of employer defendant] acting on behalf
of [name of defendant];] [or]
2. [That an officer, a director, or a managing agent of [name of
employer defendant] had advance knowledge of the unfitness of
[name of individual defendant] and employed [him/her/nonbinary
pronoun] with a knowing disregard of the rights or safety of
others;] [or]
3. [That an officer, a director, or a managing agent of [name of
employer defendant] authorized [name of individual defendant]’s
conduct;] [or]
4. [That an officer, a director, or a managing agent of [name of
employer defendant] knew of [name of individual defendant]’s
wrongful conduct and adopted or approved the conduct after it
occurred.]
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
Derived from former CACI No. 3102 October 2008; Revised April 2009, May 2020
Directions for Use
This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107
(physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the
enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain
and suffering against an employer and the employee is also a defendant. (See Civ.
Code, § 3294(b) Welf. & Inst. Code, §§ 15657(c), 15657.05.) If the employer is the
only defendant, give CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only. The requirements of Civil Code section
3294(b) need not be met in order to obtain enhanced remedies from an employer for
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financial abuse. (See Welf. & Inst. Code, § 15657.5(c).)
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Physical Abuse, Neglect, or Abandonment. Welfare and
Institutions Code section 15657.
• Enhanced Remedies Against Employer Based on Acts of Employee. Welfare and
Institutions Code section 15657.5(c).
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• Punitive Damages Against Employer. Civil Code section 3294(b).
• “[A] finding of ratification of [agent’s] actions by [employer], and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of
something more than negligence; he or she must show reckless, oppressive,
fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’
‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.
‘Recklessness’ refers to a subjective state of culpability greater than simple
negligence, which has been described as a ‘deliberate disregard’ of the ‘high
degree of probability’ that an injury will occur. Recklessness, unlike negligence,
involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to
take precautions’ but rather rises to the level of a ‘conscious choice of a course
of action . . . with knowledge of the serious danger to others involved in it.’ ”
(Delaney, supra, 20 Cal.4th at pp. 31–32, internal citations omitted.)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
Secondary Sources
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6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:67, 10:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.41–6.44
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
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3102B. Employer Liability for Enhanced Remedies—Employer
Defendant Only (Welf. & Inst. Code, §§ 15657, 15657.05; Civ. Code,
§ 3294(b))
[Name of plaintiff] also claims that [name of defendant] is responsible for
[attorney fees and costs/ [and] [name of decedent]’s pain and suffering
before death]. To establish this claim, [name of plaintiff] must prove by
clear and convincing evidence [insert one or more of the following four
options:]
1. [That the employee who committed the acts was an officer, a
director, or a managing agent of [name of defendant] acting on
behalf of [name of defendant]]; [or]
2. [That an officer, a director, or a managing agent of [name of
defendant] had advance knowledge of the unfitness of the
employee who committed the acts and employed
[him/her/nonbinary pronoun] with a knowing disregard of the
rights or safety of others;] [or]
3. [That an officer, a director, or a managing agent of [name of
defendant] authorized the conduct of the employee who committed
the acts;] [or]
4. [That an officer, a director, or a managing agent of [name of
defendant] knew of the wrongful conduct of the employee who
committed the acts and adopted or approved the conduct after it
occurred.]
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
Derived from former CACI No. 3102 October 2008; Revised April 2009, May 2020
Directions for Use
This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107
(physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the
enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain
and suffering against an employer and the employee is not also a defendant. (See
Civ. Code, § 3294(b); Welf. & Inst. Code, §§ 15657(c), 15677.05.) If the employee
is also a defendant, give CACI No. 3102A, Employer Liability for Enhanced
Remedies—Both Individual and Employer Defendants. The requirements of Civil
Code section 3294(b) need not be met in order to obtain enhanced remedies from an
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employer for financial abuse. (See Welf. & Inst. Code, § 15657.5(c).)
Sources and Authority
• Enhanced Remedies for Physical Abuse, Neglect, or Abandonment. Welfare and
Institutions Code section 15657.
• Enhanced Remedies Against Employer for Acts of Employee. Welfare and
Institutions Code section 15657.5(c).
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• Punitive Damages Against Employer. Civil Code section 3294(b).
• “[A] finding of ratification of [agent’s] actions by [employer], and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:67, 10:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.41–6.44
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
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3103. Neglect—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.57)
[Name of plaintiff] claims that [he/she/nonbinary pronoun/[name of
decedent]] was neglected by [[name of individual defendant]/ [and] [name of
employer defendant]] in violation of the Elder Abuse and Dependent Adult
Civil Protection Act. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [[name of individual defendant]/[name of employer defendant]’s
employee] had a substantial caretaking or custodial relationship
with [name of plaintiff/decedent], involving ongoing responsibility
for [his/her/nonbinary pronoun] basic needs, which an able-bodied
and fully competent adult would ordinarily be capable of
managing without assistance;
2. That [name of plaintiff/decedent] was [65 years of age or older/a
dependent adult] while [he/she/nonbinary pronoun] was in [[name
of individual defendant]’s/[name of employer defendant]’s
employee’s] care or custody;
3. That [[name of individual defendant]/[name of employer defendant]’s
employee] failed to use the degree of care that a reasonable
person in the same situation would have used in providing for
[name of plaintiff/decedent]’s basic needs, including [insert one or
more of the following:]
3. [assisting in personal hygiene or in the provision of food, clothing,
or shelter;]
3. [providing medical care for physical and mental health needs;]
3. [protecting [name of plaintiff/decedent] from health and safety
hazards;]
3. [preventing malnutrition or dehydration;]
3. [insert other grounds for neglect;]
4. That [name of plaintiff/decedent] was harmed; and
5. That [[name of individual defendant]’s/[name of employer
defendant]’s employee’s] conduct was a substantial factor in
causing [name of plaintiff/decedent]’s harm.
New September 2003; Revised December 2005, June 2006, October 2008, January
2017
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Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act (the Act) by the victim of elder neglect, or by
the survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage), in the Damages series.
If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the
case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3104,
Neglect—Enhanced Remedies Sought, in addition to this instruction. (See Welf. &
Inst. Code, § 15657.)
If the individual responsible for the neglect is a defendant in the case, use “[name of
individual defendant]” throughout. If only the individual’s employer is a defendant,
use “[name of employer defendant]’s employee” throughout.
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give either CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
The Act does not extend to cases involving professional negligence against health-
care providers as defined by the California Medical Injury Compensation Reform
Act of 1975 (MICRA) unless the professional had a substantial caretaking or
custodial relationship with the elder or dependent adult patient, involving ongoing
responsibility for one or more basic needs (Winn v. Pioneer Medical Group, Inc.
(2016) 63 Cal.4th 148, 152 [202 Cal.Rptr.3d 447, 370 P.3d 1011]; see Welf. & Inst.
Code, § 15657.2; Civ. Code, § 3333.2(c)(2).)
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Neglect” Defined. Welfare and Institutions Code section 15610.57.
• Claims for Professional Negligence Excluded. Welfare and Institutions Code
section 15657.2.
• “It is true that statutory elder abuse includes ‘neglect as defined in Section
15610.57,’ which in turn includes negligent failure of an elder custodian ‘to
provide medical care for [the elder’s] physical and mental health needs.’ . . .
‘[N]eglect’ within the meaning of Welfare and Institutions Code section
15610.57 covers an area of misconduct distinct from ‘professional negligence.’
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As used in the Act, neglect refers not to the substandard performance of medical
services but, rather, to the ‘failure of those responsible for attending to the basic
needs and comforts of elderly or dependent adults, regardless of their
professional standing, to carry out their custodial obligations.’ Thus, the statutory
definition of ‘neglect’ speaks not of the undertaking of medical services, but of
the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 783 [11 Cal.Rptr.3d 222, 86 P.3d 290], original italics,
internal citations omitted.)
• “The Elder Abuse Act does not ‘apply whenever a doctor treats any elderly
patient. Reading the act in such a manner would radically transform medical
malpractice liability relative to the existing scheme.’ ” (Alexander v. Scripps
Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 223 [232 Cal.Rptr.3d
733], original italics.)
• “We granted review to consider whether a claim of neglect under the Elder
Abuse Act requires a caretaking or custodial relationship—where a person has
assumed significant responsibility for attending to one or more of those basic
needs of the elder or dependent adult that an able-bodied and fully competent
adult would ordinarily be capable of managing without assistance. Taking
account of the statutory text, structure, and legislative history of the Elder Abuse
Act, we conclude that it does.” (Winn, supra, 63 Cal.4th at p. 155.)
• “[T]he Act does not apply unless the defendant health care provider had a
substantial caretaking or custodial relationship, involving ongoing responsibility
for one or more basic needs, with the elder patient. It is the nature of the elder
or dependent adult’s relationship with the defendant—not the defendant’s
professional standing—that makes the defendant potentially liable for neglect.”
(Winn, supra, 63 Cal.4th at p. 152.)
• “The Act seems premised on the idea that certain situations place elders and
dependent adults at heightened risk of harm, and heightened remedies relative to
conventional tort remedies are appropriate as a consequence. Blurring the
distinction between neglect under the Act and conduct actionable under ordinary
tort remedies—even in the absence of a care or custody relationship—risks
undermining the Act’s central premise. Accordingly, plaintiffs alleging
professional negligence may seek certain tort remedies, though not the
heightened remedies available under the Elder Abuse Act.” (Winn, supra, 63
Cal.4th at p. 159, internal citation omitted.)
• “ ‘[I]t is the defendant’s relationship with an elder or a dependent adult—not the
defendant’s professional standing or expertise—that makes the defendant
potentially liable for neglect.’ For these reasons, Winn better supports the
conclusion that the majority of [defendant]’s interactions with decedent were
custodial. [Defendant] has cited no authority allowing or even encouraging a
court to assess care and custody status on a task-by-task basis, and the Winn
court’s focus on the extent of dependence by a patient on a health care provider
rather than on the nature of the particular activities that comprised the patient-
provider relationship counsels against adopting such an approach.” (Stewart v.
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Superior Court (2017) 16 Cal.App.5th 87, 103–104 [224 Cal.Rptr.3d 219].)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “Neglect includes the failure to assist in personal hygiene, or in the provision of
food, clothing, or shelter; the failure to provide medical care for physical and
mental health needs; the failure to protect from health and safety hazards; and
the failure to prevent malnutrition or dehydration.” (Avila v. Southern California
Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843 [230 Cal.Rptr.3d 42].)
• “[T]he statutory definition of neglect set forth in the first sentence of Welfare
and Institutions Code section 15610.57 is substantially the same as the ordinary
definition of neglect.” (Conservatorship of Gregory v. Beverly Enterprises, Inc.
(2000) 80 Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)
• “[N]eglect as a form of abuse under the Elder Abuse Act refers ‘to the failure of
those responsible for attending to the basic needs and comforts of elderly or
dependent adults, regardless of their professional standing, to carry out their
custodial obligations.’ ” (Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396, 404 [129 Cal.Rptr.3d 895].)
• “It seems to us, then, that respecting the patient’s right to consent or object to
surgery is a necessary component of ‘provid[ing] medical care for physical and
mental health needs.’ Conversely, depriving a patient of the right to consent to
surgery could constitute a failure to provide a necessary component of what we
think of as ‘medical care.’ ” (Stewart, supra, 16 Cal.App.5th at p. 107, internal
citation omitted.)
• “[A] violation of staffing regulations here may provide a basis for finding
neglect. Such a violation might constitute a negligent failure to exercise the care
that a similarly situated reasonable person would exercise, or it might constitute
a failure to protect from health and safety hazards . . . . The former is the
definition of neglect under the Act, and the latter is just one nonexclusive
example of neglect under the Act.” (Fenimore v. Regents of University of
California (2016) 245 Cal.App.4th 1339, 1348−1349 [200 Cal.Rptr.3d 345].)
• “Disagreements between physicians and the patient or surrogate about the type
of care being provided does not give rise to an elder abuse cause of action.”
(Alexander, supra, 23 Cal.App.5th at p. 223.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865, 1869–1871
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.70–2.71
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[3] (Matthew Bender)
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3104. Neglect—Enhanced Remedies Sought (Welf. & Inst. Code,
§ 15657)
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for
neglect by clear and convincing evidence, and must also prove by clear
and convincing evidence that [[name of individual defendant]/[name of
employer defendant]’s employee] acted with
[recklessness/oppression/fraud/ [or] malice] in neglecting [name of
plaintiff/decedent].
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
New September 2003; Revised June 2005, October 2008
Directions for Use
Give this instruction along with CACI No. 3103, Neglect—Essential Factual
Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs and
damages for the decedent’s predeath pain and suffering. (See Welf. & Inst. Code,
§ 15657.)
If the individual responsible for the neglect is a defendant in the case, use “[name of
individual defendant].” If only the individual’s employer is a defendant, use “[name
of employer defendant]’s employee.”
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give CACI No. 3102A, Employer Liability for Enhanced Remedies—Both Individual
and Employer Defendants, or CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only.
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Neglect. Welfare and Institutions Code section 15657.
• “In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of
something more than negligence; he or she must show reckless, oppressive,
fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’
‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. [¶]
‘Recklessness’ refers to a subjective state of culpability greater than simple
negligence, which has been described as a ‘deliberate disregard’ of the ‘high
degree of probability’ that an injury will occur. Recklessness, unlike negligence,
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involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to
take precautions’ but rather rises to the level of a ‘conscious choice of a course
of action . . . with knowledge of the serious danger to others involved in it.’ ”
(Delaney v. Baker (1999) 20 Cal.4th 23, 31–32 [82 Cal.Rptr.2d 610, 971 P.2d
986], internal citations omitted.)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence recklessness,
oppression, fraud, or malice in the commission of elder abuse. Even then, those
damages would be subject to the $250,000 cap placed by Civil Code section
3333.2, subdivision (b) for noneconomic damages against a health care provider.
In this limited circumstance, the decedent’s right to pain and suffering damages
would not die with him or her; the damages would be recoverable by a
survivor.” (ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18
Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
• “[I]f the neglect is ‘reckless[],’ or done with ‘oppression, fraud or malice,’ then
the action falls within the scope of section 15657 and as such cannot be
considered simply ‘based on . . . professional negligence’ within the meaning of
section 15657.2. The use of such language in section 15657, and the explicit
exclusion of ‘professional negligence’ in section 15657.2, make clear the Elder
Abuse Act’s goal was to provide heightened remedies for, as stated in the
legislative history, ‘acts of egregious abuse’ against elder and dependent adults,
while allowing acts of negligence in the rendition of medical services to elder
and dependent adults to be governed by laws specifically applicable to such
negligence. That only these egregious acts were intended to be sanctioned under
section 15657 is further underscored by the fact that the statute requires liability
to be proved by a heightened ‘clear and convincing evidence’ standard.”
(Delaney, supra, 20 Cal.4th at p. 35, internal citation omitted.)
• “[W]e distill several factors that must be present for conduct to constitute
neglect within the meaning of the Elder Abuse Act and thereby trigger the
enhanced remedies available under the Act. The plaintiff must allege (and
ultimately prove by clear and convincing evidence) facts establishing that the
defendant (1) had responsibility for meeting the basic needs of the elder or
dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew
of conditions that made the elder or dependent adult unable to provide for his or
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CACI No. 3104 ELDER ABUSE & DEPENDENT ADULTS
her own basic needs; and (3) denied or withheld goods or services necessary to
meet the elder or dependent adult’s basic needs, either with knowledge that
injury was substantially certain to befall the elder or dependent adult (if the
plaintiff alleges oppression, fraud or malice) or with conscious disregard of the
high probability of such injury (if the plaintiff alleges recklessness). The plaintiff
must also allege (and ultimately prove by clear and convincing evidence) that
the neglect caused the elder or dependent adult to suffer physical harm, pain or
mental suffering.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 406–407 [129 Cal.Rptr.3d 895], internal citations omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as all
elements of liability, must be proved by clear and convincing evidence for
purposes of an award of attorney fees.” (Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 664 [77 Cal.Rptr.3d 743].)
• “We reject plaintiffs’ argument that a violation of the Act does not constitute an
independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict
establishing causation—one element of liability—by clear and convincing
evidence, precludes an award of attorney fees.” (Perlin, supra, 163 Cal.App.4th
at p. 666.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:9, 9:11.1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) § 2.72
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
3105. Reserved for Future Use
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Copyright Judicial Council of California
3106. Physical Abuse—Essential Factual Elements (Welf. & Inst.
Code, § 15610.63)
[Name of plaintiff] claims that [he/she/nonbinary pronoun/[name of
decedent]] was physically abused by [[name of individual defendant]/ [and]
[name of employer defendant]] in violation of the Elder Abuse and
Dependent Adult Civil Protection Act. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [[name of individual defendant]/[name of employer defendant]’s
employee] physically abused [name of plaintiff/decedent] by [insert
applicable grounds for abuse];
2. That [name of plaintiff/decedent] was [65 years of age or older/a
dependent adult] at the time of the conduct;
3. That [name of plaintiff/decedent] was harmed; and
4. That [[name of individual defendant]’s/[name of employer
defendant]’s employee’s] conduct was a substantial factor in
causing [name of plaintiff/decedent]’s harm.
New September 2003; Revised December 2005, October 2008
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act by the victim of elder physical abuse, or by
the survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage) in the Damages series.
If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the
case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3107,
Physical Abuse—Enhanced Remedies Sought, in addition to this instruction. (See
Welf. & Inst. Code, § 15657.)
If the individual responsible for the physical abuse is a defendant in the case, use
“[name of individual defendant]” throughout. If only the individual’s employer is a
defendant, use “[name of employer defendant]’s employee” throughout.
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give either CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
The instructions in this series are not intended to cover every circumstance in which
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CACI No. 3106 ELDER ABUSE & DEPENDENT ADULTS
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Physical Abuse” Defined. Welfare and Institutions Code section 15610.63.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 1:1, 9:1, 19:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.69, 2.71
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,
§ 5.33[2] (Matthew Bender)
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Copyright Judicial Council of California
3107. Physical Abuse—Enhanced Remedies Sought (Welf. & Inst.
Code, § 15657)
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for the
physical abuse by clear and convincing evidence, and must also prove by
clear and convincing evidence that [[name of individual defendant]/[name
of employer defendant]’s employee] acted with [recklessness/oppression/
fraud/ [or] malice] in physically abusing [name of plaintiff].
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
New September 2003; Revised June 2005, October 2008
Directions for Use
Give this instruction along with CACI No. 3106, Physical Abuse—Essential Factual
Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs and
damages for the decedent’s predeath pain and suffering. (See Welf. & Inst. Code,
§ 15657.)
If the individual responsible for the physical abuse is a defendant in the case, use
“[name of individual defendant].” If only the individual’s employer is a defendant,
use “[name of employer defendant]’s employee.”
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give CACI No. 3102A, Employer Liability for Enhanced Remedies—Both Individual
and Employer Defendants, or CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only.
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Physical Abuse. Welfare and Institutions Code section
15657.
• “In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of
something more than negligence; he or she must show reckless, oppressive,
fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’
‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. [¶]
‘Recklessness’ refers to a subjective state of culpability greater than simple
negligence, which has been described as a ‘deliberate disregard’ of the ‘high
degree of probability’ that an injury will occur. Recklessness, unlike negligence,
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CACI No. 3107 ELDER ABUSE & DEPENDENT ADULTS
involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to
take precautions’ but rather rises to the level of a ‘conscious choice of a course
of action . . . with knowledge of the serious danger to others involved in it.’ ”
(Delaney v. Baker (1999) 20 Cal.4th 23, 31–32 [82 Cal.Rptr.2d 610, 971 P.2d
986], internal citations omitted.)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence recklessness,
oppression, fraud, or malice in the commission of elder abuse. Even then, those
damages would be subject to the $250,000 cap placed by Civil Code section
3333.2, subdivision (b) for noneconomic damages against a health care provider.
In this limited circumstance, the decedent’s right to pain and suffering damages
would not die with him or her; the damages would be recoverable by a
survivor.” (ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18
Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
• “[I]f the neglect is ‘reckless[],’ or done with ‘oppression, fraud or malice,’ then
the action falls within the scope of section 15657 and as such cannot be
considered simply ‘based on . . . professional negligence’ within the meaning of
section 15657.2. The use of such language in section 15657, and the explicit
exclusion of ‘professional negligence’ in section 15657.2, make clear the Elder
Abuse Act’s goal was to provide heightened remedies for, as stated in the
legislative history, ‘acts of egregious abuse’ against elder and dependent adults,
while allowing acts of negligence in the rendition of medical services to elder
and dependent adults to be governed by laws specifically applicable to such
negligence. That only these egregious acts were intended to be sanctioned under
section 15657 is further underscored by the fact that the statute requires liability
to be proved by a heightened ‘clear and convincing evidence’ standard.”
(Delaney, supra, 20 Cal.4th at p. 35, internal citation omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as all
elements of liability, must be proved by clear and convincing evidence for
purposes of an award of attorney fees.” (Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 664 [77 Cal.Rptr.3d 743].)
• “We reject plaintiffs’ argument that a violation of the Act does not constitute an
independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict
establishing causation—one element of liability—by clear and convincing
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ELDER ABUSE & DEPENDENT ADULTS CACI No. 3107
evidence, precludes an award of attorney fees.” (Perlin, supra, 163 Cal.App.4th
at p. 666.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:9, 9:28 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) § 2.72
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
3108. Reserved for Future Use
395
Copyright Judicial Council of California
3109. Abduction—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.06)
[Name of plaintiff] claims that [[name of individual defendant]/ [and] [name
of employer defendant]] abducted [him/her/nonbinary pronoun/[name of
decedent]] in violation of the Elder Abuse and Dependent Adult Civil
Protection Act. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [[name of individual defendant]/[name of employer defendant]’s
employee] [removed [name of plaintiff/decedent] from California
and] restrained [him/her/nonbinary pronoun/[name of decedent]]
from returning to California;
2. That [name of plaintiff/decedent] was [65 years of age or older/a
dependent adult] at the time of the conduct;
3. [That [name of plaintiff/decedent] did not have the capacity to
consent to the [removal and] restraint;]
3. [or]
3. [That [[name of plaintiff/decedent]’s conservator/the court] did not
consent to the [removal and] restraint;]
4. That [name of plaintiff/decedent] was harmed; and
5. That [[name of individual defendant]’s/[name of employer
defendant]’s employee’s] conduct was a substantial factor in
causing [name of plaintiff/decedent]’s harm.
New September 2003; Revised December 2005, October 2008
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act by the victim of elder abduction, or by the
survivors of the victim. If the victim is the plaintiff and is seeking damages for pain
and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage), in the Damages series.
If the individual responsible for the abduction is a defendant in the case, use “[name
of individual defendant]” throughout. If only the individual’s employer is a
defendant, use “[name of employer defendant]’s employee” throughout.
If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the
case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3110,
Abduction—Enhanced Remedies Sought. (See Welf. & Inst. Code, § 15657.05.)
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
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ELDER ABUSE & DEPENDENT ADULTS CACI No. 3109
give either CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
The instructions in this series are not intended to cover every circumstance under
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• “Abduction” Defined. Welfare and Institutions Code section 15610.06.
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07 provides:
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence recklessness,
oppression, fraud, or malice in the commission of elder abuse. Even then, those
damages would be subject to the $250,000 cap placed by Civil Code section
3333.2, subdivision (b) for noneconomic damages against a health care provider.
In this limited circumstance, the decedent’s right to pain and suffering damages
would not die with him or her; the damages would be recoverable by a
survivor.” (ARA Living Centers—Pacific, Inc. v. Superior Court (1993) 18
Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 7:1, 7:3 (The Rutter
Group)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,
§ 5.33[5] (Matthew Bender)
397
Copyright Judicial Council of California
3110. Abduction—Enhanced Remedies Sought (Welf. & Inst.
Code, § 15657.05)
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for the
abduction by clear and convincing evidence.
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
New September 2003; Revised December 2005, April 2008, October 2008
Directions for Use
Give this instruction along with CACI No. 3109, Abduction—Essential Factual
Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs and/
or damages for the decedent’s predeath pain and suffering. (See Welf. & Inst. Code,
§ 15657.05.)
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give CACI No. 3102A, Employer Liability for Enhanced Remedies—Both Individual
and Employer Defendants, or CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only.
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and allows
survivors to recover pain and suffering damages in cases of intentional and
reckless abuse where the elder has died.” (Mack v. Soung (2000) 80 Cal.App.4th
966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds in Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202 Cal.Rptr.3d 447,
370 P.3d 1011], internal citations omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as all
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elements of liability, must be proved by clear and convincing evidence for
purposes of an award of attorney fees.” (Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 664 [77 Cal.Rptr.3d 743].)
• “We reject plaintiffs’ argument that a violation of the Act does not constitute an
independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict
establishing causation—one element of liability—by clear and convincing
evidence, precludes an award of attorney fees.” (Perlin, supra, 163 Cal.App.4th
at p. 666.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 7:1-7:3 (The Rutter
Group)
3111. Reserved for Future Use
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3112. “Dependent Adult” Explained (Welf. & Inst. Code,
§ 15610.23)
A “dependent adult” is a person, regardless of whether or not the person
lives independently, who is between the ages of 18 and 64 years and who
[insert one of the following:]
[has physical or mental limitations that restrict that person’s ability
to carry out normal activities or to protect that person’s rights. This
includes persons who have physical or developmental disabilities or
whose physical or mental abilities have diminished because of age.]
[or]
[is admitted as an inpatient to [a/an] [insert 24-hour health facility].]
New September 2003; Revised January 2019, May 2020
Directions for Use
Read the alternative that is most appropriate to the facts of the case.
Sources and Authority
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Developmentally Disabled Person” Defined. Welfare and Institutions Code
section 15610.25.
Secondary Sources
California Elder Law Litigation (Cont.Ed.Bar) § 6.22
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.31 (Matthew Bender)
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3113. “Recklessness” Explained
[[Name of individual defendant]/[Name of employer defendant]’s employee]
acted with “recklessness” if [he/she/nonbinary pronoun] knew it was
highly probable that [his/her/nonbinary pronoun] conduct would cause
harm and [he/she/nonbinary pronoun] knowingly disregarded this risk.
“Recklessness” is more than just the failure to use reasonable care.
New September 2003; Revised October 2008
Directions for Use
If the individual responsible for the elder abuse is a defendant in the case, use
“[name of individual defendant].” If only the individual’s employer is a defendant,
use “[name of employer defendant]’s employee.”
Sources and Authority
• “ ‘Recklessness’ refers to a subjective state of culpability greater than simple
negligence, which has been described as a ‘deliberate disregard’ of the ‘high
degree of probability’ that an injury will occur. Recklessness, unlike negligence,
involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to
take precautions’ but rather rises to the level of a ‘conscious choice of a course
of action . . . with knowledge of the serious danger to others involved in it.’ ”
(Delaney v. Baker (1999) 20 Cal.4th 23, 31–32 [82 Cal.Rptr.2d 610, 971 P.2d
986], internal citations omitted.)
• “[T]he term ‘recklessness’ requires that the defendant have knowledge of a high
degree of probability that dangerous consequences will result from his or her
conduct and acts with deliberate disregard of that probability or with a conscious
disregard of the probable consequences. Recklessness requires conduct more
culpable than mere negligence.” (Conservatorship of Gregory (2000) 80
Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)
• “The trier of fact should decide whether a knowing pattern and practice of
understaffing in violation of applicable regulations amounts to recklessness.”
(Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339,
1349 [200 Cal.Rptr.3d 345].)
• “A jury may see knowingly flouting staffing regulations as part of a pattern and
practice to cut costs, thereby endangering the facility’s elderly and dependent
patients, as qualitatively different than simple negligence.” (Fenimore, supra, 245
Cal.App.4th at p. 1350.)
• Restatement Second of Torts, section 500, provides: “The actor’s conduct is in
reckless disregard of the safety of another if he does an act or intentionally fails
to do an act which it is his duty to the other to do, knowing or having reason to
know of facts which would lead a reasonable man to realize, not only that his
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conduct creates an unreasonable risk of physical harm to another, but also that
such risk is substantially greater than that which is necessary to make his
conduct negligent.”
Secondary Sources
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:33, 9:33.1 (The
Rutter Group)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[1] (Matthew Bender)
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3114. “Malice” Explained
“Malice” means that [[name of individual defendant]/[name of employer
defendant]’s employee] acted with intent to cause injury or that [his/her/
nonbinary pronoun] conduct was despicable and was done with a willful
and knowing disregard of the rights or safety of another. A person acts
with knowing disregard when the person is aware of the probable
dangerous consequences of the person’s conduct and deliberately fails to
avoid those consequences.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
New September 2003; Revised October 2008, May 2020
Directions for Use
If the individual responsible for the elder abuse is a defendant in the case, use
“[name of individual defendant].” If only the individual’s employer is a defendant,
use “[name of employer defendant]’s employee.”
Sources and Authority
• “Malice” for Punitive Damages Defined. Civil Code section 3294(c)(1).
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
• “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
and he or she willfully fails to avoid such consequences. [Citation.] Malice may
be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences. [Citation.]’ ” (Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [164 Cal.Rptr.3d 112].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1727, 1729
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[1] (Matthew Bender)
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3115. “Oppression” Explained
“Oppression” means that [[name of individual defendant]’s/[name of
employer defendant]’s employee’s] conduct was despicable and subjected
[name of plaintiff/decedent] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
New September 2003; Revised October 2008
Directions for Use
If the individual responsible for the elder abuse is a defendant in the case, use
“[name of individual defendant]’s.” If only the individual’s employer is a defendant,
use “[name of employer defendant]’s employee’s.”
Sources and Authority
• “Oppression” for Punitive Damages. Civil Code section 3294(c)(2).
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
Secondary Sources
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[1] (Matthew Bender)
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3116. “Fraud” Explained
“Fraud” means an intentional misrepresentation, deceit, or concealment
of a material fact with the intention of depriving [name of
plaintiff/decedent] of property or of a legal right or otherwise to cause
[name of plaintiff/decedent] injury.
New September 2003; Revised October 2008
Sources and Authority
• “Fraud” for Punitive Damages. Civil Code section 3294(c)(3).
• “Although neglect that is fraudulent may be sufficient to trigger the enhanced
remedies available under the Elder Abuse Act, without detrimental reliance, there
is no fraud.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 409 [129 Cal.Rptr.3d 895], internal citations omitted.)
• “Apart from recklessness, [plaintiffs] also alleged the [defendant] Hospital was
liable for elder abuse remedies because it acted fraudulently. They alleged the
Hospital concealed [decedent] ‘s fall from his family, knowing that the fall was
an adverse event that would affect its Medicare funding. Unlike the allegations
of recklessness in violating staffing regulations, we find these allegations of
fraud insufficient. . . . There were no allegations explaining how such
concealment harmed [decedent] or how he detrimentally relied on it.” (Fenimore
v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1351 [200
Cal.Rptr.3d 345], internal citation omitted.)
Secondary Sources
Balisok, Civil Litigation Series: Elder Abuse Litigation, § 9:43 (The Rutter Group)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[4] (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, § 215.70 (Matthew Bender)
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3117. Financial Abuse—“Undue Influence” Explained
“Undue influence” means excessive persuasion that overcomes another
person’s free will and causes the person to do something or to not do
something that causes an unfair result. In determining whether [name of
defendant] exerted undue influence on [name of plaintiff], you must
consider all of the following:
a. [Name of plaintiff]’s vulnerability. Factors to consider may
include, but are not limited to, [incapacity/illness/disability/
injury/age/education/impaired mental abilities/emotional distress/
isolation/ [or] dependency], and whether [name of defendant] knew
or should have known of [name of plaintiff]’s vulnerability.
b. [Name of defendant]’s apparent authority. Factors to consider may
include, but are not limited to, [name of defendant]’s position as a
[fiduciary/family member/care provider/health care professional/
legal professional/spiritual adviser/expert/ [or] [specify other
position]].
c. The actions or tactics that [name of defendant] used. Actions or
tactics used may include, but are not limited to, all of the
following:
[(1) Controlling [name of plaintiff]’s necessaries of life, medications,
interactions with others, access to information, or sleep;]
[(2) Using affection, intimidation, or coercion;].
[(3) Initiating changes in personal or property rights, using haste
or secrecy in making those changes, making changes at
inappropriate times and places, and claiming expertise in
making changes.]
d. The unfairness of the result. Factors to consider may include, but
are not limited to, [the economic consequences to [name of
plaintiff]/any change from [name of plaintiff]’s prior intent or
course of conduct or dealing/the relationship between any value
that [name of plaintiff] gave up to the value of any services or
other consideration that [name of plaintiff] received/ [or] the
appropriateness of the change in light of the length and nature of
the relationship between [name of plaintiff] and [name of
defendant]].
Evidence of an unfair result, without more, is not enough to prove undue
influence.
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New June 2014
Directions for Use
Give this instruction with CACI No. 3100, Financial Abuse—Essential Factual
Elements, if undue influence is alleged in element 3 of No. 3100. The instruction
assumes that the person alleged to be exerting undue influence is a named
defendant. Insert that person’s name for “[name of defendant]” throughout even if
the person is not a named defendant. Select relevant evidence in each of the factors.
Sources and Authority
• Undue Influence for Elder or Dependent Adult Abuse. Welfare and Institutions
Code section 15610.70.
• “During the pendency of this appeal, the Legislature amended Welfare and
Institutions Code section 15610.30, subdivision (a)(3) replacing ‘by undue
influence, as defined in Section 1575 of the Civil Code’ with ‘by undue
influence, as defined in Section 15610.70.’ The Legislature added a new section
15610.70 to the Welfare and Institutions Code, defining undue influence as
‘excessive persuasion that causes another person to act or refrain from acting by
overcoming that person’s free will and results in inequity,’ and listing factors to
be considered in making an undue influence determination under section
15610.30. . . . Although the new reference to ‘excessive persuasion’ may not be
entirely clear, perhaps calling to mind Aristophanes’s Lysistrata, the Legislature
declared that the newly applied definition is not intended to supersede or
interfere with the common law meaning of undue influence.” (Lintz v. Lintz
(2014) 222 Cal.App.4th 1346, 1356 fn.3 [167 Cal.Rptr.3d 50], internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017), Torts § 80
Balisok, Elder Abuse Litigation, §§ 5:1, 22:9–22:12 (The Rutter Group)
30 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.49 (Matthew Bender)
3118–3199. Reserved for Future Use
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VF-3100. Financial Abuse—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.30, 15657.5(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] at the time of the conduct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of employee defendant] [take/hide/appropriate/obtain/
[or] retain] [name of plaintiff/decedent]’s property [for a wrongful
use/with the intent to defraud/ [or] by undue influence]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of employee defendant]’s conduct a substantial factor in
causing harm to [name of plaintiff/decedent]?
3. Yes No
3. If your answer to question 3 is yes, then answer question[s] 4
[and 5]. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
4. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
4. TOTAL $
[5. Did [name of plaintiff] prove by clear and convincing evidence that
[name of employee defendant] acted with
[recklessness/malice/oppression/ [or] fraud]?
[5. Yes No
[5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, April 2007, April 2008, October 2008,
April 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3100, Financial Abuse—Essential Factual
Elements, and CACI No. 3101, Financial Abuse—Decedent’s Pain and Suffering.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant assisted in the wrongful conduct, modify
question 1 as in element 2 of CACI No. 3100.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
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especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If the jury answers “yes” to questions 1, 2, and 3, attorney fees and costs are
recoverable from the individual defendant without any additional showing of any
kind. (Welf. & Inst. Code, § 15657.5(a).) Attorney fees are also recoverable from the
employer, assuming that standard vicarious liability is shown. (See Welf. & Inst.
Code, § 15657.5(c).) Incorporate questions 3 and 4 from CACI No. VF-3700,
Negligence—Vicarious Liability, to address the liability of the employer for the acts
of the employee.
Should the financial abuse in some way have caused the victim’s death, the
decedent’s pain and suffering before death is recoverable on a showing by clear and
convincing evidence that the individual defendant acted with recklessness,
oppression, fraud, or malice. (See Welf. & Inst. Code, § 15657.5(b); Code Civ.
Proc., § 377.34.) In such a case, in question 4, include only item 4a for past
economic loss. But also include questions 5 and 6.
If punitive damages are sought, incorporate a verdict form for punitive damages.
(See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3101. Financial Abuse—Employer Defendant Only (Welf. &
Inst. Code, §§ 15610.30, 15657.5(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] at the time of the conduct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant]’s employee [take/hide/appropriate/obtain
[or] retain] [name of plaintiff/decedent]’s property [for a wrongful
use/ [or] with the intent to defraud [or] by undue influence]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the employee’s conduct a substantial factor in causing harm
to [name of plaintiff/decedent]?
3. Yes No
3. If your answer to question 3 is yes, then answer question[s] 4
[and 5]. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
4. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
4. TOTAL $
[5. Did [name of plaintiff] prove by clear and convincing evidence that
the employee acted with [recklessness/malice/oppression/ [or]
fraud]?
[5. Yes No
[5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, April 2007, April 2008, October 2008,
April 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3100, Financial Abuse—Essential Factual
Elements, and CACI No. 3101, Financial Abuse—Decedent’s Pain and Suffering.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant’s employees assisted in the wrongful
conduct, modify question 1 as in element 1 of CACI No. 3100.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
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ELDER ABUSE & DEPENDENT ADULTS VF-3101
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If the jury answers “yes” to questions 1, 2, and 3, attorney fees and costs will be
recoverable from the employer, assuming that standard vicarious liability is shown.
(See Welf. & Inst. Code, § 15657.5(c).) Incorporate questions 3 and 4 from CACI
No. VF-3700, Negligence—Vicarious Liability, to address the liability of the
employer for the acts of the employee.
Should the financial abuse in some way have caused the victim’s death, the
decedent’s pain and suffering before death is recoverable on a showing by clear and
convincing evidence that the employee acted with recklessness, oppression, fraud, or
malice. (See Welf. & Inst. Code, § 15657.5(b); Code Civ. Proc., § 377.34.) In such a
case, in question 4 include only item 4a for past economic loss. But also include
questions 5 and 6.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3102. Neglect—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.57, 15657; Civ. Code,
§ 3294(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] while [he/she/nonbinary pronoun] was in [name of
employee defendant]’s care or custody?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of employee defendant] have a substantial caretaking or
custodial relationship with [name of plaintiff/decedent], involving
ongoing responsibility for [his/her/nonbinary pronoun] basic needs?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of employee defendant] fail to use that degree of care
that a reasonable person in the same situation would have used in
assisting in personal hygiene or in the provision of food, clothing,
or shelter?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of employee defendant]’s conduct a substantial factor in
causing harm to [name of plaintiff/decedent]?
4. Yes No
4. If your answer to question 4 is yes, then answer question[s] 5
[and] [select 6, 7 or both]. If you answered no, stop here, answer
no further questions, and have the presiding juror sign and date
this form.
5. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
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[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
5. TOTAL $
[6. Did [name of plaintiff] prove by clear and convincing evidence that
an officer, a director, or a managing agent of [name of employer
defendant] had advance knowledge of the unfitness of [name of
employee defendant] and employed [him/her/nonbinary pronoun]
with a knowing disregard of the rights or safety of others?
[6. Yes No]
[7. Did [name of plaintiff] prove 1 through 4 above by clear and
convincing evidence and also prove by clear and convincing
evidence that [name of employee defendant] acted with
[recklessness/malice/oppression/ [or] fraud]?
[7. Yes No]
[7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
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After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016, November 2017
Directions for Use
This verdict form is based on CACI No. 3103, Neglect—Essential Factual Elements,
CACI No. 3104, Neglect—Enhanced Remedies Sought, and CACI No. 3102A,
Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be modified to correspond to the alleged wrongful conduct as in
element 3 of CACI No. 3103.
Optional questions 6, 7, and 8 address enhanced remedies. If the neglect is proved
by clear and convincing evidence, and it is also proved by clear and convincing
evidence that the individual defendant acted with recklessness, malice, oppression,
or fraud, attorney fees, costs, and a decedent’s predeath pain and suffering may be
recovered. (See Welf. & Inst. Code, § 15657.) If any of these remedies are sought
against the employer, include question 6. (See Welf. & Inst. Code, § 15657(c).)
Question 6 may be altered to correspond to one of the alternative bracketed options
for employer liability in CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 7. If the neglect led to the elder’s death, in question 5 include only
item 5a for past economic loss. But also include the transitional language after
question 7 and include question 8.
In the transitional language after question 4, direct the jury to answer questions 6 or
7 or both, depending on which questions are to be included. If question 7 is to be
included but question 6 is not, then 7 will be renumbered as 6.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
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ELDER ABUSE & DEPENDENT ADULTS VF-3102
findings that are required in order to calculate the amount of prejudgment interest.
417
Copyright Judicial Council of California
VF-3103. Neglect—Employer Defendant Only (Welf. & Inst. Code,
§§ 15610.57, 15657; Civ. Code, § 3294(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] while [he/she/nonbinary pronoun] was in [name of
defendant]’s care or custody?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff/decedent] in [name of defendant]’s care or
custody?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did one or more of [name of defendant]’s employees fail to use
that degree of care that a reasonable person in the same situation
would have used in assisting in personal hygiene or in the
provision of food, clothing, or shelter?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the employee’s conduct a substantial factor in causing harm
to [name of plaintiff/decedent]?
4. Yes No
4. If your answer to question 4 is yes, then answer question[s] 5
[and 6]. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
5. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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ELDER ABUSE & DEPENDENT ADULTS VF-3103
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
5. TOTAL $
[6. Did [name of plaintiff] prove by clear and convincing evidence that
an officer, a director, or a managing agent of [name of defendant]
had advance knowledge of the unfitness of the employee and
employed [him/her/nonbinary pronoun] with a knowing disregard
of the rights or safety of others?
[6. Yes No
[6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did [name of plaintiff] prove 1 through 4 above by clear and
convincing evidence and also prove by clear and convincing
evidence that the employee acted with
[recklessness/malice/oppression/ [or] fraud]?
7. Yes No]
7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
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VF-3103 ELDER ABUSE & DEPENDENT ADULTS
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3103, Neglect—Essential Factual Elements,
CACI No. 3104, Neglect—Enhanced Remedies Sought, and CACI No. 3102B,
Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be modified to correspond to the alleged wrongful conduct as in
element 3 of CACI No. 3103.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 6 and 7 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657; Code Civ.
Proc., § 377.34.) Question 6 may be altered to correspond to one of the alternative
bracketed options in CACI No. 3102B.
If the neglect led to the elder’s death, in question 5 include only item 5a for past
economic loss. But also include the transitional language after question 7 and
include question 8.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
420
Copyright Judicial Council of California
VF-3104. Physical Abuse—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.63, 15657; Civ. Code,
§ 3294(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] at the time of the conduct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of employee defendant] physically abuse [name of
plaintiff/decedent]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of employee defendant]’s conduct a substantial factor in
causing harm to [name of plaintiff/decedent]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4 [and]
[select 5, 6, or both]. If you answered no, stop here, answer no
further questions, and have the presiding juror sign and date this
form.
4. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
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VF-3104 ELDER ABUSE & DEPENDENT ADULTS
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
4. TOTAL $
[5. Did [name of plaintiff] prove by clear and convincing evidence that
an officer, a director, or a managing agent of [name of employer
defendant] had advance knowledge of the unfitness of [name of
employee defendant] and employed [him/her/nonbinary pronoun]
with a knowing disregard of the rights or safety of others?
[5. Yes No]
[6. Did [name of plaintiff] prove 1 through 3 above by clear and
convincing evidence and also prove by clear and convincing
evidence that [name of employee defendant] acted with
[recklessness/malice/oppression/ [or] fraud]?
[6. Yes No]
[6. [If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3106, Physical Abuse—Essential Factual
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Copyright Judicial Council of California
ELDER ABUSE & DEPENDENT ADULTS VF-3104
Elements, CACI No. 3107, Physical Abuse—Enhanced Remedies Sought, and CACI
No. 3102A, Employer Liability for Enhanced Remedies—Both Individual and
Employer Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Optional questions 5, 6, and 7 address enhanced remedies. If the physical abuse is
proved by clear and convincing evidence, and it is also proved by clear and
convincing evidence that the individual defendant acted with recklessness, malice,
oppression, or fraud, attorney fees, costs, and a decedent’s predeath pain and
suffering may be recovered. (See Welf. & Inst. Code, § 15657.) If any of these
remedies are sought against the employer, include question 5. (See Welf. & Inst.
Code, § 15657(c).) Question 5 may be altered to correspond to one of the alternative
bracketed options for employer liability in CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 6. If the physical abuse led to the neglected elder’s death, in
question 4 include only item 4a for past economic loss. But also include the
transitional language after question 6 and include question 7.
In the transitional language after question 3, direct the jury to answer questions 5 or
6 or both, depending on which questions are to be included. If question 6 is to be
included but question 5 is not, then 6 will be renumbered as 5.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
423
Copyright Judicial Council of California
VF-3105. Physical Abuse—Employer Defendant Only (Welf. & Inst.
Code, §§ 15610.63, 15657; Civ. Code, § 3294(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] at the time of the conduct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant]’s employee physically abuse [name of
plaintiff/decedent]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the employee’s conduct a substantial factor in causing harm
to [name of plaintiff/decedent]?
3. Yes No
3. If your answer to question 3 is yes, then answer question[s] 4
[and 5]. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
4. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
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ELDER ABUSE & DEPENDENT ADULTS VF-3105
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
4. TOTAL $
[5. Did [name of plaintiff] prove by clear and convincing evidence that
an officer, a director, or a managing agent of [name of defendant]
had advance knowledge of the unfitness of the employee and
employed [him/her/nonbinary pronoun/them] with a knowing
disregard of the rights or safety of others?
[5. Yes No
[5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Did [name of plaintiff] prove 1 through 3 by clear and convincing
evidence and also prove by clear and convincing evidence that the
employee acted with [recklessness/malice/oppression/ [or] fraud]?
6. Yes No]
6. [If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3106, Physical Abuse—Essential Factual
425
Copyright Judicial Council of California
VF-3105 ELDER ABUSE & DEPENDENT ADULTS
Elements, CACI No. 3107, Physical Abuse—Enhanced Remedies Sought, and CACI
No. 3102B, Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 5 and 6 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657; Code Civ.
Proc., § 377.34.) Question 5 may be altered to correspond to one of the alternative
bracketed options in CACI No. 3102B.
If the physical abuse led to the elder’s death, in question 4 include only item 4a for
past economic loss. But also include the transitional language after question 6 and
include question 7.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
426
Copyright Judicial Council of California
VF-3106. Abduction—Individual or Individual and Employer
Defendants (Welf. & Inst. Code, §§ 15610.06, 15657.05; Civ. Code,
§ 3294(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] at the time of the conduct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of employee defendant] [remove [name of
plaintiff/decedent] from California and] restrain
[him/her/nonbinary pronoun/[name of plaintiff/decedent]] from
returning to California?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff/decedent] lack the capacity to consent to the
[removal and] restraint?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of employee defendant]’s conduct a substantial factor in
causing harm to [name of plaintiff/decedent]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5 [and]
[select 6, 7, or both]. If you answered no, stop here, answer no
further questions, and have the presiding juror sign and date this
form.
5. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
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VF-3106 ELDER ABUSE & DEPENDENT ADULTS
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
5. TOTAL $
[6. Did [name of plaintiff] prove by clear and convincing evidence that
[name of employee defendant] was an officer, director, or managing
agent of [name of employer defendant] acting on behalf of [name of
defendant].
[6. Yes No]
[7. Did [name of plaintiff] prove 1 through 4 above by clear and
convincing evidence?
[7. Yes No]
[7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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Copyright Judicial Council of California
ELDER ABUSE & DEPENDENT ADULTS VF-3106
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3109, Abduction—Essential Factual
Elements, CACI No. 3110, Abduction—Enhanced Remedies Sought, and CACI No.
3102A, Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be altered to correspond to the alternative bracketed option in
element 3 of CACI No. 3109.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Optional questions 6, 7, and 8 address enhanced remedies. If the abduction is
proved by clear and convincing evidence, attorney fees, costs, and a decedent’s
predeath pain and suffering may be recovered. (See Welf. & Inst. Code,
§ 15657.05.) If any of these remedies are sought against the employer, include
question 6. (See Welf. & Inst. Code, § 15657.05(c).) Question 6 may be altered to
correspond to one of the alternative bracketed options for employer liability in
CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 7. If the abduction led to the abductee’s death, in question 5
include only item 5a for past economic loss. But also include the transitional
language after question 7 and include question 8.
In the transitional language after question 4, direct the jury to answer questions 6, 7,
or both, depending on which questions are to be included. If question 7 is to be
included but question 6 is not, then 7 will be renumbered as 6.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
429
Copyright Judicial Council of California
VF-3107. Abduction—Employer Defendant Only (Welf. & Inst.
Code, §§ 15610.06, 15657.05; Civ. Code, § 3294(b))
We answer the questions submitted to us as follows:
1. Was [name of plaintiff/decedent] [65 years of age or older/a
dependent adult] at the time of the conduct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant]’s employee [remove [name of
plaintiff/decedent] from California and] restrain
[him/her/nonbinary pronoun/[name of plaintiff/decedent]] from
returning to California?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff/decedent] lack the capacity to consent to the
[removal and] restraint?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the employee’s conduct a substantial factor in causing harm
to [name of plaintiff/decedent]?
4. Yes No
4. If your answer to question 4 is yes, then answer question[s] 5
[and 6]. If you answered no, stop here, answer no further
questions, and have the presiding juror sign and date this form.
5. What are [name of plaintiff/decedent]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
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ELDER ABUSE & DEPENDENT ADULTS VF-3107
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
5. TOTAL $
[6. Did [name of plaintiff] prove by clear and convincing evidence that
the employee was an officer, a director, or a managing agent of
[name of defendant] acting in on behalf of [name of defendant]?
[6. Yes No
[6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did [name of plaintiff] prove 1 through 4 by clear and convincing
evidence?
7. Yes No]
7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What were [name of decedent]’s damages for noneconomic loss for
pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
431
Copyright Judicial Council of California
VF-3107 ELDER ABUSE & DEPENDENT ADULTS
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3109, Abduction—Essential Factual
Elements, CACI No. 3110, Abduction—Enhanced Remedies Sought, and CACI No.
3102B, Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be altered to correspond to the alternative bracketed option in
element 3 of CACI No. 3109.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 6 and 7 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657.05(b); Code Civ.
Proc., § 377.34.) Question 6 may be altered to correspond to one of the alternative
bracketed options in CACI No. 3102B.
If the abduction led to the abductee’s death, in question 5 include only item 5a for
past economic loss. But also include the transitional language after question 7 and
include question 8.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3108–VF-3199. Reserved for Future Use
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Liability
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3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number
of Repair Opportunities—Essential Factual Elements (Civ. Code,
§ 1793.2(d))
3201. Failure to Promptly Repurchase or Replace New Motor Vehicle After
Reasonable Number of Repair Opportunities—Essential Factual Elements
(Civ. Code, § 1793.2(d))
3202. “Repair Opportunities” Explained
3203. Reasonable Number of Repair Opportunities—Rebuttable Presumption (Civ.
Code, § 1793.22(b))
3204. “Substantially Impaired” Explained
3205. Failure to Begin Repairs Within Reasonable Time or to Complete Repairs
Within 30 Days—Essential Factual Elements (Civ. Code, § 1793.2(b))
3206. Breach of Disclosure Obligations—Essential Factual Elements
3207–3209. Reserved for Future Use
3210. Breach of Implied Warranty of Merchantability—Essential Factual Elements
3211. Breach of Implied Warranty of Fitness for a Particular Purpose—Essential
Factual Elements
3212. Duration of Implied Warranty
3213–3219. Reserved for Future Use
3220. Affirmative Defense—Unauthorized or Unreasonable Use
3221. Affirmative Defense—Disclaimer of Implied Warranties
3222. Affirmative Defense—Statute of Limitations (Cal. U. Com. Code, § 2725)
3223–3229. Reserved for Future Use
3230. Continued Reasonable Use Permitted
3231. Continuation of Express or Implied Warranty During Repairs (Civ. Code,
§ 1795.6)
3232–3239. Reserved for Future Use
3240. Reimbursement Damages—Consumer Goods (Civ. Code, §§ 1793.2(d)(1),
1794(b))
3241. Restitution From Manufacturer—New Motor Vehicle (Civ. Code,
§§ 1793.2(d)(2), 1794(b))
3242. Incidental Damages
3243. Consequential Damages
3244. Civil Penalty—Willful Violation (Civ. Code, § 1794(c))
3245–3299. Reserved for Future Use
VF-3200. Failure to Repurchase or Replace Consumer Good After Reasonable
Number of Repair Opportunities (Civ. Code, § 1793.2(d))
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VF-3201. Consequential Damages
VF-3202. Failure to Repurchase or Replace Consumer Good After Reasonable
Number of Repair Opportunities—Affirmative Defense—Unauthorized or
Unreasonable Use (Civ. Code, § 1793.2(d))
VF-3203. Breach of Express Warranty—New Motor Vehicle—Civil Penalty Sought
VF-3204. Breach of Implied Warranty of Merchantability
VF-3205. Breach of Implied Warranty of Merchantability—Affirmative
Defense—Disclaimer of Implied Warranties
VF-3206. Breach of Disclosure Obligations
VF-3207–VF-3299. Reserved for Future Use
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3200. Failure to Repurchase or Replace Consumer Good After
Reasonable Number of Repair Opportunities—Essential Factual
Elements (Civ. Code, § 1793.2(d))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of defendant]’s failure to repurchase or replace [a/an] [consumer
good] after a reasonable number of repair opportunities. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] bought [a/an] [consumer good]
[from/distributed by/manufactured by] [name of defendant];
2. That [name of defendant] gave [name of plaintiff] a warranty by
[insert at least one of the following:]
2. [making a written statement that [describe alleged express
warranty];] [or]
2. [showing [him/her/nonbinary pronoun] a sample or model of the
[consumer good] and representing, by words or conduct, that [his/
her/nonbinary pronoun] [consumer good] would match the quality
of the sample or model;]
3. That the [consumer good] [insert at least one of the following:]
3. [did not perform as stated for the time specified;] [or]
3. [did not match the quality [of the [sample/model]] [or] [as set
forth in the written statement];]
4. [That [name of plaintiff] delivered the [consumer good] to [name of
defendant] or its authorized repair facilities for repair;]
4. [or]
4. [That [name of plaintiff] notified [name of defendant] in writing of
the need for repair because [he/she/nonbinary pronoun] reasonably
could not deliver the [consumer good] to [name of defendant] or its
authorized repair facilities because of the [size and weight/method
of attachment/method of installation] [or] [the nature of the
defect] of the [consumer good]]; [and]
5. That [name of defendant] or its representative failed to repair the
[consumer good] to match the [written statement/represented
quality] after a reasonable number of opportunities; [and]
6. [That [name of defendant] did not replace the [consumer good] or
reimburse [name of plaintiff] an amount of money equal to the
purchase price of the [consumer good], less the value of its use by
[name of plaintiff] before discovering the defect[s].]
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[A written statement need not include the words “warranty” or
“guarantee,” but if those words are used, a warranty is created. It is also
not necessary for [name of defendant] to have specifically intended to
create a warranty. A warranty is not created if [name of defendant]
simply stated the value of the [consumer good] or gave an opinion about
the [consumer good]. General statements concerning customer satisfaction
do not create a warranty.]
New September 2003; Revised April 2007, December 2007, December 2011
Directions for Use
An instruction on the definition of “consumer good” may be necessary if that issue
is disputed. Civil Code section 1791(a) provides: “ ‘Consumer goods’ means any
new product or part thereof that is used, bought, or leased for use primarily for
personal, family, or household purposes, except for clothing and consumables.
‘Consumer goods’ shall include new and used assistive devices sold at retail.”
Select the alternative in element 4 that is appropriate to the facts of the case.
Regarding element 4, if the plaintiff claims that the consumer goods could not be
delivered for repair, the judge should decide whether written notice of
nonconformity is required. The statute, Civil Code section 1793.2(c), is unclear on
this point.
Depending on the circumstances of the case, further instruction on element 6 may
be needed to clarify how the jury should calculate “the value of its use” during the
time before discovery of the defect.
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof is necessary, add the
following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] [did not match the quality [of
the [sample/model]]/as set forth in the written statement];
See also CACI No. 1243, Notification/Reasonable Time.
If appropriate to the facts, add: “It is not necessary for [name of plaintiff] to prove
the cause of a defect in the [consumer good].” The Song-Beverly Consumer
Warranty Act does not require a consumer to prove the cause of the defect or
failure, only that the consumer good “did not conform to the express warranty.”
(See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn. 8
[109 Cal.Rptr.2d 583].)
In addition to sales of consumer goods, the Consumer Warranty Act applies to
leases. (Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified for use
in cases involving an express warranty in a lease of consumer goods.
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See also CACI No. 3202, “Repair Opportunities” Explained.
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• “Express Warranty” Defined. Civil Code section 1791.2.
• Express Warranty Made by Someone Other Than Manufacturer. Civil Code
section 1795.
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d).
• Extension of Warranty. Civil Code section 1793.1(a)(2).
• Buyer’s Delivery of Nonconforming Goods. Civil Code section 1793.2(c).
• Distributor or Seller of Used Consumer Goods. Civil Code section 1795.5.
• Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.
• Extension of Warranty Period for Repairs. Civil Code section 1793.1(a)(2).
• Tolling of Warranty Period for Nonconforming Goods. Civil Code section
1795.6.
• “ ‘The Song-Beverly Act is a remedial statute designed to protect consumers
who have purchased products covered by an express warranty . . . . One of the
most significant protections afforded by the act is . . . that “if the manufacturer
or its representative in this state does not service or repair the goods to conform
to the applicable express warranties after a reasonable number of attempts, the
manufacturer shall either replace the goods or reimburse the buyer in an amount
equal to the purchase price paid by the buyer . . . .” . . .’ In providing these
remedies, the Legislature has not required that the consumer maintain possession
of the goods at all times. All that is necessary is that the consumer afford the
manufacturer a reasonable number of attempts to repair the goods to conform to
the applicable express warranties.” (Martinez v. Kia Motors America, Inc. (2011)
193 Cal.App.4th 187, 191 [122 Cal.Rptr.3d 497], internal citation omitted.)
• Broadly speaking, the Act regulates warranty terms; imposes service and repair
obligations on manufacturers, distributors and retailers who make express
warranties; requires disclosure of specified information in express warranties;
and broadens a buyer’s remedies to include costs, attorney fees and civil
penalties . . . [¶] [T]he purpose of the Act has been to provide broad relief to
purchasers of consumer goods with respect to warranties.” (National R.V., Inc. v.
Foreman (1995) 34 Cal.App.4th 1072, 1080 [40 Cal.Rptr.2d 672].)
• “[S]ection 1793.2, subdivision (d)(2), differs from section 1793.2, subdivision
(d)(1), in that it gives the new motor vehicle consumer the right to elect
restitution in lieu of replacement; provides specific procedures for the motor
vehicle manufacturer to follow in the case of replacement and in the case of
restitution; and sets forth rules for offsetting the amount attributed to the
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consumer’s use of the motor vehicle. These ‘Lemon Law’ provisions clearly
provide greater consumer protections to those who purchase new motor vehicles
than are afforded under the general provisions of the Act to those who purchase
other consumer goods under warranty.” (National R.V., Inc., supra, 34
Cal.App.4th at p.1079, internal citations and footnotes omitted.)
• The act does not require a consumer to give a manufacturer, in addition to its
local representative, at least one opportunity to fix a problem. Regarding
previous repair efforts entitling an automobile buyer to reimbursement, “[t]he
legislative history of [Civil Code section 1793.2] demonstrates beyond any
question that . . . a differentiation between manufacturer and local representative
is unwarranted.” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 888
[263 Cal.Rptr. 64].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 52, 57, 321–334
1 California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 3.4, 3.8, 3.15, 3.87
2 California UCC Sales and Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70
2 California UCC Sales and Leases (Cont.Ed.Bar) Litigation Remedies, § 18.25
2 California UCC Sales and Leases (Cont.Ed.Bar) Leasing of Goods, § 19.38
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.15 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.100 et seq. (Matthew
Bender)
California Civil Practice: Business Litigation. §§ 53:1, 53:3–53:4, 53:10–53:11,
53:14–53:17, 53:22–53:23, 53:26–53:27 (Thomson Reuters)
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3201. Failure to Promptly Repurchase or Replace New Motor
Vehicle After Reasonable Number of Repair
Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d))
[Name of plaintiff] claims that [name of defendant] failed to promptly
repurchase or replace [a/an] [new motor vehicle] after a reasonable
number of repair opportunities. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [bought/leased] [a/an] [new motor vehicle]
[from/distributed by/manufactured by] [name of defendant];
2. That [name of defendant] gave [name of plaintiff] a written
warranty that [describe alleged express warranty];
3. That the vehicle had [a] defect[s] that [was/were] covered by the
warranty and that substantially impaired its use, value, or safety
to a reasonable person in [name of plaintiff]’s situation;
4. [That [name of plaintiff] delivered the vehicle to [name of
defendant] or its authorized repair facility for repair of the
defect[s];]
4. [or]
4. [That [name of plaintiff] notified [name of defendant] in writing of
the need for repair of the defect[s] because [he/she/nonbinary
pronoun] reasonably could not deliver the vehicle to [name of
defendant] or its authorized repair facility because of the nature
of the defect[s];]
5. That [name of defendant] or its authorized repair facility failed to
repair the vehicle to match the written warranty after a
reasonable number of opportunities to do so; and
6. That [name of defendant] did not promptly replace or buy back
the vehicle.
[It is not necessary for [name of plaintiff] to prove the cause of a defect in
the [new motor vehicle].]
[A written warranty need not include the words “warranty” or
“guarantee,” but if those words are used, a warranty is created. It is also
not necessary for [name of defendant] to have specifically intended to
create a warranty. A warranty is not created if [name of defendant]
simply stated the value of the vehicle or gave an opinion about the
vehicle. General statements concerning customer satisfaction do not
create a warranty.]
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New September 2003; Revised February 2005, December 2005, April 2007,
December 2007, December 2011
Directions for Use
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof is necessary, add the
following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [new motor vehicle] had a defect covered by
the warranty;
See also CACI No. 1243, Notification/Reasonable Time.
Regarding element 4, if the plaintiff claims that the consumer goods could not be
delivered for repair, the judge should decide whether written notice of
nonconformity is required. The statute, Civil Code section 1793.2(c), is unclear on
this point.
Include the bracketed sentence preceding the final bracketed paragraph if appropriate
to the facts. The Song-Beverly Consumer Warranty Act does not require a consumer
to prove the cause of the defect or failure, only that the consumer good “did not
conform to the express warranty.” (See Oregel v. American Isuzu Motors, Inc.
(2001) 90 Cal.App.4th 1094, 1102, fn. 8 [109 Cal.Rptr.2d 583].)
In addition to sales of consumer goods, the Consumer Warranty Act applies to
leases. (Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified for use
in cases involving an express warranty in a lease of a motor vehicle.
See also CACI No. 3202, “Repair Opportunities” Explained, CACI No. 3203,
Reasonable Number of Repair Opportunities—Rebuttable Presumption, and CACI
No. 3204, “Substantially Impaired” Explained.
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• Extension of Warranty Period. Civil Code section 1793.1(a)(2).
• Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.
• “Express Warranty” Defined. Civil Code section 1791.2.
• Express Warranty Made by Someone Other Than Manufacturer. Civil Code
section 1795.
• “New Motor Vehicle” Defined. Civil Code section 1793.22(e)(2).
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d)(2).
• Buyer’s Delivery of Nonconforming Goods. Civil Code section 1793.2(c).
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• Extension of Warranty. Civil Code section 1793.1(a)(2).
• Tolling of Warranty Period for Nonconforming Goods. Civil Code section
1795.6.
• “ ‘The Song-Beverly Act is a remedial statute designed to protect consumers
who have purchased products covered by an express warranty . . . . One of the
most significant protections afforded by the act is . . . that “if the manufacturer
or its representative in this state does not service or repair the goods to conform
to the applicable express warranties after a reasonable number of attempts, the
manufacturer shall either replace the goods or reimburse the buyer in an amount
equal to the purchase price paid by the buyer . . . .” . . .’ In providing these
remedies, the Legislature has not required that the consumer maintain possession
of the goods at all times. All that is necessary is that the consumer afford the
manufacturer a reasonable number of attempts to repair the goods to conform to
the applicable express warranties.” (Martinez v. Kia Motors America, Inc. (2011)
193 Cal.App.4th 187, 191 [122 Cal.Rptr.3d 497], internal citation omitted.)
• “Broadly speaking, the Act regulates warranty terms; imposes service and repair
obligations on manufacturers, distributors and retailers who make express
warranties; requires disclosure of specified information in express warranties;
and broadens a buyer’s remedies to include costs, attorney fees and civil
penalties . . . . [¶] [T]he purpose of the Act has been to provide broad relief to
purchasers of consumer goods with respect to warranties.” (National R.V., Inc. v.
Foreman (1995) 34 Cal.App.4th 1072, 1080 [40 Cal.Rptr.2d 672].)
• “A plaintiff pursuing an action under the Act has the burden to prove that (1) the
vehicle had a nonconformity covered by the express warranty that substantially
impaired the use, value or safety of the vehicle (the nonconformity element); (2)
the vehicle was presented to an authorized representative of the manufacturer of
the vehicle for repair (the presentation element); and (3) the manufacturer or his
representative did not repair the nonconformity after a reasonable number of
repair attempts (the failure to repair element).” (Donlen v. Ford Motor Co.
(2013) 217 Cal.App.4th 138, 152 [158 Cal.Rptr.3d 180].)
• The Song-Beverly Act does not apply unless the vehicle was purchased in
California. (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 490 [30
Cal.Rptr.3d 823, 115 P.3d 98].)
• “Under well-recognized rules of statutory construction, the more specific
definition [of ‘new motor vehicle’] found in the current section 1793.22 governs
the more general definition [of ‘consumer goods’] found in section 1791.”
(Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 126 [41
Cal.Rptr.2d 295].)
• “ ‘Nonconformity’ is defined as ‘a nonconformity which substantially impairs the
use, value, or safety of the new motor vehicle to the buyer or lessee.’ The term
is similar to what the average person would understand to be a ‘defect.’ ”
(Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1249 [40
Cal.Rptr.2d 576], internal citation omitted; see also Robertson v. Fleetwood
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Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 801, fn. 11 [50
Cal.Rptr.3d 731] [nonconformity can include entire complex of related
conditions].)
• “The issue of whether the problems constituted substantial impairment is one for
the trier of fact.” (Schreidel, supra, 34 Cal.App.4th at p. 1250.)
• “[S]ection 1793.2, subdivision (d)(2), differs from section 1793.2, subdivision
(d)(1), in that it gives the new motor vehicle consumer the right to elect
restitution in lieu of replacement; provides specific procedures for the motor
vehicle manufacturer to follow in the case of replacement and in the case of
restitution; and sets forth rules for offsetting the amount attributed to the
consumer’s use of the motor vehicle. These ‘Lemon Law’ provisions clearly
provide greater consumer protections to those who purchase new motor vehicles
than are afforded under the general provisions of the Act to those who purchase
other consumer goods under warranty.” (National R.V., Inc., supra, 34
Cal.App.4th at p. 1079, internal citations and footnotes omitted.)
• The act does not require a consumer to give a manufacturer, in addition to its
local representative, at least one opportunity to fix a problem. Regarding
previous repair efforts entitling an automobile buyer to reimbursement, “[t]he
legislative history of [Civil Code section 1793.2] demonstrates beyond any
question that . . . a differentiation between manufacturer and local representative
is unwarranted.” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 888
[263 Cal.Rptr. 64].)
• “[T]he only affirmative step the Act imposes on consumers is to ‘permit[] the
manufacturer a reasonable opportunity to repair the vehicle.’ ” (Oregel, supra, 90
Cal.App.4th at p. 1103, original italics, internal citation omitted.)
• “[T]he Act does not require consumers to take any affirmative steps to secure
relief for the failure of a manufacturer to service or repair a vehicle to conform
to applicable warranties—other than, of course, permitting the manufacturer a
reasonable opportunity to repair the vehicle . . . . In reality, . . . , the
manufacturer seldom on its own initiative offers the consumer the options
available under the Act: a replacement vehicle or restitution. Therefore, as a
practical matter, the consumer will likely request replacement or restitution. But
the consumer’s request is not mandated by any provision in the Act. Rather, the
consumer’s request for replacement or restitution is often prompted by the
manufacturer’s unforthright approach and stonewalling of fundamental warranty
problems.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041,
1050 [104 Cal.Rptr.3d 853], original italics.)
• “[Defendant] argues allowing evidence of postwarranty repairs extends the term
of its warranty to whatever limit an expert is willing to testify. We disagree.
Evidence that a problem was fixed for a period of time but reappears at a later
date is relevant to determining whether a fundamental problem in the vehicle
was ever resolved. Indeed, that a defect first appears after a warranty has expired
does not necessarily mean the defect did not exist when the product was
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purchased. Postwarranty repair evidence may be admitted on a case-by-case
basis where it is relevant to showing the vehicle was not repaired to conform to
the warranty during the warranty’s existence.” (Donlen, supra, 217 Cal.App.4th
at p. 149, internal citations omitted.)
• “[W]e hold that registration renewal and nonoperation fees are not recoverable
as collateral charges under section 1793.2, subdivision (d)(2)(B), part of the Act
because they are not collateral to the price paid for the vehicle, but they are
recoverable as incidental damages under section 1794, part of the Act if they
were incurred and paid as a result of a manufacturer’s failure to promptly
provide a replacement vehicle or restitution under section 1793.2, subdivision
(d)(2).” (Kirzhner v. Mercedes-Benz USA, LLC (2020) 9 Cal.5th 966, 987 [266
Cal.Rptr.3d 346, 470 P.3d 56].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 52, 57, 321–334
1 California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 7.4, 7.8, 7.15,
7.87; id., Prelitigation Remedies, § 13.68; id., Litigation Remedies, § 14.25, id.,
Division 10: Leasing of Goods, § 17.31
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.15 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.104 (Matthew Bender)
California Civil Practice: Business Litigation. §§ 53:1, 53:3–53:4, 53:10–53:11,
53:14–53:17, 53:22–53:23, 53:26–53:27 (Thomson Reuters)
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3202. “Repair Opportunities” Explained
Each time the [consumer good/new motor vehicle] was given to [name of
defendant] [or its authorized repair facility] for repair counts as an
opportunity to repair, even if [it/they] did not do any repair work.
In determining whether [name of defendant] had a reasonable number of
opportunities to fix the [consumer good/new motor vehicle], you should
consider all the circumstances surrounding each repair visit. [Name of
defendant] [or its authorized repair facility] must have been given at least
two opportunities to fix the [consumer good/new motor vehicle] [unless
only one repair attempt was possible because the [consumer good/new
motor vehicle] was later destroyed or because [name of defendant] [or its
authorized repair facility] refused to attempt the repair].
New September 2003; Revised February 2005, December 2005, June 2006
Directions for Use
This instruction applies only to claims under Civil Code section 1793.2(d) and not
to other claims, such as claims for breach of the implied warranty of
merchantability. (See Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402,
406–407 [7 Cal.Rptr.3d 546].)
The final bracketed portion of the last sentence of this instruction is intended for use
only in cases where the evidence shows that only one repair attempt was possible
because of the subsequent malfunction and destruction of the vehicle or where the
defendant refused to attempt the repair. (See Bishop v. Hyundai Motor America
(1996) 44 Cal.App.4th 750 [52 Cal.Rptr.2d 134]; Gomez v. Volkswagen of America,
Inc. (1985) 169 Cal.App.3d 921 [215 Cal.Rptr. 507].)
Sources and Authority
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d).
• “[T]he only affirmative step the Act imposes on consumers is to ‘permit[] the
manufacturer a reasonable opportunity to repair the vehicle.’ Whether or not the
manufacturer’s agents choose to take advantage of the opportunity, or are unable
despite that opportunity to isolate and make an effort to repair the problem, are
matters for which the consumer is not responsible.” (Oregel v. American Isuzu
Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103–1104 [109 Cal.Rptr.2d 583],
internal citation omitted.)
• “Section 1793.2(d) requires the manufacturer to afford the specified remedies of
restitution or replacement if that manufacturer is unable to repair the vehicle
‘after a reasonable number of attempts.’ ‘Attempts’ is plural. The statute does not
require the manufacturer to make restitution or replace a vehicle if it has had
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only one opportunity to repair that vehicle.” (Silvio v. Ford Motor Co. (2003)
109 Cal.App.4th 1205, 1208 [135 Cal.Rptr.2d 846].)
Secondary Sources
2 California UCC Sales & Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.15 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.104 et seq. (Matthew
Bender)
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3203. Reasonable Number of Repair Opportunities—Rebuttable
Presumption (Civ. Code, § 1793.22(b))
The number of opportunities to make repairs is presumed to be
reasonable if [name of plaintiff] proves that within [18 months from
delivery of the [new motor vehicle] to [him/her/nonbinary pronoun/it]] [or]
[the first 18,000 miles] [insert option A, B, and/or C:]
[A. 1. The vehicle was made available to [name of defendant] [or its
authorized repair facility] for repair of the same substantially
impairing defect two or more times; [and]
2. The defect resulted in a condition that was likely to cause
death or serious bodily injury if the vehicle were driven; [and]
3. [[Name of plaintiff] directly notified [name of manufacturer] in
writing about the need to repair the defect;] [or]]
[B. 1. The vehicle was made available to [name of defendant] [or its
authorized repair facility] for repair of the same substantially
impairing defect four or more times; [and]
2. [[Name of plaintiff] directly notified [name of manufacturer] in
writing about the need to repair the defect;] [or]]
[C. The vehicle was out of service for repair of substantially
impairing defects by [name of defendant] [or its authorized repair
facility] for more than 30 days.]
If [name of plaintiff] has proved these facts, then the number of
opportunities to make repairs was reasonable unless [name of defendant]
proves that under all the circumstances [name of defendant] [or its
authorized repair facility] was not given a reasonable opportunity to
repair the defect.
[The 30-day limit for repairing defects will be lengthened if [name of
defendant] proves that repairs could not be made because of conditions
beyond the control of [name of defendant] or its authorized repair
facility.]
New September 2003; Revised February 2005, May 2020
Directions for Use
This instruction should not be given if none of the enumerated situations apply to
the plaintiff’s case. (Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235,
1245 [13 Cal.Rptr.3d 679].)
Note that the factfinder’s inquiry should be focused on overall reasonableness of the
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opportunities plaintiff gave defendant to make repairs. Therefore, while satisfying
the rebuttable presumption (without having it overcome by defendant) is one way
for plaintiff to satisfy the reasonable opportunities requirement, the plaintiff may do
so in other ways instead. Likewise, because the statutory presumption is rebuttable,
defendant is allowed an opportunity to overcome it.
The rebuttable presumption concerning the number of repair attempts applies only to
new motor vehicles—see the Tanner Consumer Protection Act. (Civ. Code,
§ 1793.22(b).)
The bracketed language in the first two optional paragraphs concerning notice made
directly to the manufacturer are applicable only if “the manufacturer has clearly and
conspicuously disclosed to the buyer, with the warranty or the owner’s manual, the
provisions of [the Tanner Consumer Protection Act] and that of [Civil Code section
1793.2(d)], including the requirement that the buyer must notify the manufacturer
directly.” (See Civ. Code, § 1793.22(b)(3).) This is a matter that the judge should
determine ahead of time as an issue of law.
Sources and Authority
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d)(2).
• Reasonable Number of Repair Opportunities. Civil Code section 1793.22(b).
• “We believe . . . that the only affirmative step the Act imposes on consumers is
to ‘permit[] the manufacturer a reasonable opportunity to repair the vehicle.’
Whether or not the manufacturer’s agents choose to take advantage of the
opportunity, or are unable despite that opportunity to isolate and make an effort
to repair the problem, are matters for which the consumer is not responsible.”
(Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103–1104
[109 Cal.Rptr.2d 583], internal citations and footnote omitted.)
Secondary Sources
2 California UCC Sales & Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.10
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.16 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.104 (Matthew Bender)
California Civil Practice: Business Litigation, § 53:27 (Thomson Reuters)
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3204. “Substantially Impaired” Explained
In deciding whether a reasonable person would believe that the vehicle’s
defect[s], if any, substantially impaired the vehicle’s use, value, or safety,
you may consider, among other factors, the following:
(a) [The nature of the defect[s];]
(b) [The cost and length of time required for repair;]
(c) [Whether past repair attempts have been successful;]
(d) [The degree to which the vehicle could be used while awaiting
repair;]
(e) [The availability and cost of comparable transportation during
the repairs;] [and]
(f) [Insert other appropriate factor.]
New February 2005; Revised December 2005
Directions for Use
Some or all of the stated factors may not be necessary in every case. Depending on
the facts of the case, other factors may be added as appropriate.
Sources and Authority
• “Whether the impairment is substantial is determined by an objective test, based
on what a reasonable person would understand to be a defect. This test is
applied, however, within the specific circumstances of the buyer.” (Lundy v. Ford
Motor Co. (2001) 87 Cal.App.4th 472, 478 [104 Cal.Rptr.2d 545], internal
citations omitted.)
• “The issue of whether the problems constituted substantial impairment is one for
the trier of fact.” (Schreidel v. American Honda Motor Co. (1995) 34
Cal.App.4th 1242, 1250 [40 Cal.Rptr.2d 576], internal citations omitted.)
• “The term [‘substantially’] modifies its object, ‘impairment.’ It injects an element
of degree; not every impairment is sufficient to satisfy the statute. The most
analogous definition of ‘substantially’ we have found in a context similar to its
usage here is in the Uniform Commercial Code, section 2-608. Like the clause at
issue here, this provision requires a determination of whether a defect
‘substantially impairs’ the value of goods sold to a buyer. Under it, the trier of
fact may consider: ‘the nature of the defects; the cost and length of time
required for repair; whether past repair attempts have been successful; the degree
to which the goods can be used while repairs are attempted; [inconvenience to
buyer]; and the availability and cost of alternative goods pending repair . . . .’ It
may be that this term, like ‘reasonable,’ is incapable of precise definition. At the
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least, the requirement is not satisfied by any impairment, however insignificant,
that affects use, value, or safety.” (Lundy, supra, 87 Cal.App.4th at p. 478,
internal citations omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 323–330
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, §§ 91.12[2], 91.64 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.53
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.104, 206.127 (Matthew
Bender)
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3205. Failure to Begin Repairs Within Reasonable Time or to
Complete Repairs Within 30 Days—Essential Factual Elements
(Civ. Code, § 1793.2(b))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] failed to [begin repairs on the [consumer
good/new motor vehicle] in a reasonable time/ [or] repair the [consumer
good/new motor vehicle] within 30 days]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] [bought/leased] [a/an] [consumer good/new
motor vehicle] [from/distributed by/manufactured by] [name of
defendant];
2. That [name of defendant] gave [name of plaintiff] a written
warranty that [describe alleged express warranty];
3. That the [consumer good/new motor vehicle] had [a] defect[s] that
[was/were] covered by the warranty;
4. That [name of defendant] or its authorized repair facility failed to
[begin repairs within a reasonable time/ [or] complete repairs
within 30 days so as to conform to the applicable warranties].
New December 2011; Revised December 2012
Directions for Use
Give this instruction for the defendant’s alleged breach of Civil Code section
1793.2(b), which requires that repairs be commenced within a reasonable time and
finished within 30 days unless the buyer otherwise agrees in writing. This
instruction assumes that the statute contains two separate requirements, one for
starting repairs and one for finishing them, either of which would be a violation.
The damages recoverable for unreasonable delay in repairs are uncertain. A violation
of Civil Code section 1793.2(b) would not entitle the consumer to the remedies of
restitution or replacement for a consumer good or new motor vehicle as provided in
section 1793.2(d). Before those remedies are available, the manufacturer is entitled
to a reasonable number of repair opportunities. (Gavaldon v. DaimlerChrysler Corp.
(2004) 32 Cal.4th 1246, 1262 [13 Cal.Rptr.3d 793, 90 P.3d 752]; see Civ. Code,
§§ 1793.2(d), 1793.22.) California Uniform Commercial Code remedies that are
generally available under Song-Beverly permit the buyer to cancel the sale and
recover the price paid, or to accept the goods and recover diminution in value. (See
Civ. Code, § 1794(b); Cal. U. Com. Code, §§ 2711–2715.) It seems questionable,
however, that a buyer could cancel the sale and get the purchase price back solely
for delay in completing repairs, particularly if the repairs were ultimately successful.
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Delay caused by conditions beyond the control of the defendant extends the 30-day
requirement. (Civ. Code, § 1793.2(b).) It would most likely be the defendant’s
burden to prove that conditions beyond its control caused the delay.
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• Repairs to Start Within Reasonable Time. Civil Code section 1793.2(b).
• “[T]he fifth cause of action in each complaint clearly stated a cause of action
under Civil Code section 1794 . . . . Plaintiff had pleaded that he was such a
buyer who was injured by a ‘willful’ violation of Civil Code section 1793.2,
subdivision (b) which in pertinent part requires that with respect to consumer
goods sold in this state for which the manufacturer has made an express
warranty and service and repair facilities are maintained in this state (undisputed
herein) and ‘repair of the goods is necessary because they do not conform with
the applicable express warranties, service and repair shall be commenced within
a reasonable time by the manufacturer or its representative.’ ” (Gomez v.
Volkswagen of Am. (1985) 169 Cal.App.3d 921, 925 [215 Cal.Rptr. 507],
footnote omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 324
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.14 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.103 (Matthew Bender)
30 California Legal Forms, Ch. 92, Service Contracts, § 92.52 (Matthew Bender)
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3206. Breach of Disclosure Obligations—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] violated California’s
motor vehicle warranty laws. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [bought/leased] a [motor vehicle] from
[name of defendant];
2. [That the vehicle was returned by a previous [buyer/lessee] to
[name of manufacturer] under [California/[name of state]]’s motor
vehicle warranty laws; and]
2. [or]
2. [That [name of defendant] knew or should have known that the
vehicle had been returned to the manufacturer under [California/
[name of state]]’s motor vehicle warranty laws; and]
3. [That before the [sale/leasing], [name of defendant] failed to tell
[name of plaintiff], in clear and simple language, about the nature
of the defect experienced by the original [buyer/lessee] of the
vehicle; [or]]
3. [That before the [sale/leasing] to [name of plaintiff], the defect
experienced by the vehicle’s original [buyer/lessee] was not fixed;
[or]]
3. [That [name of defendant] did not provide a written warranty to
[name of plaintiff] that the vehicle would be free for one year of
the defect experienced by the vehicle’s original [buyer/lessee].]
New September 2003; Revised June 2011; Renumbered from CACI No. 3230 June
2012
Directions for Use
Use the first bracketed option in element 2 if the defendant is the manufacturer.
Otherwise, use the second option.
This instruction is based on the disclosure and warranty obligations set forth in Civil
Code section 1793.22(f). The instruction may be modified for use with claims
involving the additional disclosure obligations set forth in California’s Automotive
Consumer Notification Act. (Civ. Code, §§ 1793.23, 1793.24.)
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
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• Notice to Buyer on Resale of Nonconforming Motor Vehicle. Civil Code section
1793.22(f)(1).
• Automotive Consumer Notification Act. Civil Code section 1793.23.
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 330
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.19 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.08 et seq. (Matthew
Bender)
30 California Legal Forms: Transaction Guide, Ch. 92, Service Contracts, § 92.53
(Matthew Bender)
California Civil Practice: Business Litigation § 53:29 (Thomson Reuters)
3207–3209. Reserved for Future Use
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3210. Breach of Implied Warranty of Merchantability—Essential
Factual Elements
[Name of plaintiff] claims that the [consumer good] did not have the
quality that a buyer would reasonably expect. This is known as “breach
of an implied warranty.” To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] bought a[n] [consumer good]
[from/manufactured by] [name of defendant];
2. That at the time of purchase [name of defendant] was in the
business of [selling [consumer goods] to retail
buyers/manufacturing [consumer goods]];
3. That the [consumer good] [insert one or more of the following:]
3. [was not of the same quality as those generally acceptable in the
trade;] [or]
3. [was not fit for the ordinary purposes for which the goods are
used;] [or]
3. [was not adequately contained, packaged, and labeled;] [or]
3. [did not measure up to the promises or facts stated on the
container or label;]
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s breach of the implied warranty was a
substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2005, December 2014, November 2018
Directions for Use
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof of notice is necessary, add
the following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] did not have the quality that
a buyer would reasonably expect;
See also CACI No. 1243, Notification/Reasonable Time. Instructions on damages
and causation may be necessary in actions brought under the California Uniform
Commercial Code.
In addition to sales of consumer goods, the Consumer Warranty Act applies to
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leases. (See Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified
for use in cases involving the implied warranty of merchantability in a lease of
consumer goods.
Sources and Authority
• Buyer’s Action for Breach of Implied Warranties. Civil Code section 1794(a).
• Damages. Civil Code section 1794(b).
• Implied Warranties. Civil Code section 1791.1(a).
• Duration of Implied Warranties. Civil Code section 1791.1(c).
• Remedies. Civil Code section 1791.1(d).
• Implied Warranty of Merchantability. Civil Code section 1792.
• Damages for Breach; Accepted Goods. California Uniform Commercial Code
section 2714.
• “As defined in the Song-Beverly Consumer Warranty Act, ‘an implied warranty
of merchantability guarantees that ‘consumer goods meet each of the following:
[¶] (1) Pass without objection in the trade under the contract description. [¶] (2)
Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are
adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or
affirmations of fact made on the container or label.’ Unlike an express warranty,
‘the implied warranty of merchantability arises by operation of law’ and
‘provides for a minimum level of quality.’ ‘The California Uniform Commercial
Code separates implied warranties into two categories. An implied warranty that
the goods “shall be merchantable” and “fit for the ordinary purposes” is
contained in California Uniform Commercial Code section 2314. Whereas an
implied warranty that the goods shall be fit for a particular purpose is contained
in section 2315. [¶] Thus, there exists in every contract for the sale of goods by
a merchant a warranty that the goods shall be merchantable. The core test of
merchantability is fitness for the ordinary purpose for which such goods are
used. (§ 2314.)’ ” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19,
26–27 [65 Cal.Rptr.3d 695], internal citations omitted.)
• “Here the alleged wrongdoing is a breach of the implied warranty of
merchantability imposed by the Song-Beverly Consumer Warranty Act. Under
the circumstances of this case, which involves the sale of a used automobile, the
element of wrongdoing is established by pleading and proving (1) the plaintiff
bought a used automobile from the defendant, (2) at the time of purchase, the
defendant was in the business of selling automobiles to retail buyers, (3) the
defendant made express warranties with respect to the used automobile, and (4)
the automobile was not fit for ordinary purposes for which the goods are used.
Generally, ‘[t]he core test of merchantability is fitness for the ordinary purpose
for which such goods are used.’ ” (Gutierrez v. Carmax Auto Superstores
California (2018) 19 Cal.App.5th 1234, 1246 [248 Cal.Rptr.3d 61] [citing this
instruction], internal citations omitted.)
• “[T]he buyer of consumer goods must plead he or she was injured or damaged
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by the alleged breach of the implied warranty of merchantability.” (Gutierrez,
supra, 19 Cal.App.5th at p. 1247.)
• “Unless specific disclaimer methods are followed, an implied warranty of
merchantability accompanies every retail sale of consumer goods in the state.”
(Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 619 [39
Cal.Rptr.2d 159].)
• The implied warranty of merchantability “does not ‘impose a general
requirement that goods precisely fulfill the expectation of the buyer. Instead, it
provides for a minimum level of quality.’ ” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295–1296 [44 Cal.Rptr.2d 526],
internal citation omitted.)
• “The [Song Beverly] act provides for both express and implied warranties, and
while under a manufacturer’s express warranty the buyer must allow for a
reasonable number of repair attempts within 30 days before seeking rescission,
that is not the case for the implied warranty of merchantability’s bulwark against
fundamental defects.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th
1538, 1545 [173 Cal.Rptr.3d 454].)
• “The Song-Beverly Act incorporates the provisions of [California Uniform
Commercial Code] sections 2314 and 2315. It ‘supplements, rather than
supersedes, the provisions of the California Uniform Commercial Code’ by
broadening a consumer’s remedies to include costs, attorney’s fees, and civil
penalties.” (American Suzuki Motor Corp., supra, 37 Cal.App.4th at p. 1295, fn.
2, internal citation omitted.)
• “The implied warranty of merchantability may be breached by a latent defect
undiscoverable at the time of sale. Indeed, ‘[u]ndisclosed latent defects . . . are
the very evil that the implied warranty of merchantability was designed to
remedy.’ In the case of a latent defect, a product is rendered unmerchantable,
and the warranty of merchantability is breached, by the existence of the unseen
defect, not by its subsequent discovery.” (Mexia v. Rinker Boat Co., Inc. (2009)
174 Cal.App.4th 1297, 1304–1305 [95 Cal.Rptr.3d 285], internal citations
omitted.)
• “[Defendant] suggests the ‘implied warranty of merchantability can be breached
only if the vehicle manifests a defect that is so basic it renders the vehicle unfit
for its ordinary purpose of providing transportation.’ As the trial court correctly
recognized, however, a merchantable vehicle under the statute requires more than
the mere capability of ‘just getting from point “A” to point “B.” ’ ” (Brand,
supra, 226 Cal.App.4th at p. 1546.)
• “[A]llegations showing an alleged defect that created a substantial safety hazard
would sufficiently allege the vehicle was not ‘fit for the ordinary purposes for
which such goods are used’ and, thus, breached the implied warranty of
merchantability.” (Gutierrez, supra, 19 Cal.App.5th at pp. 1247–1248.)
• “The notice requirement of [former Civil Code] section 1769 . . . is not an
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appropriate one for the court to adopt in actions by injured consumers against
manufacturers with whom they have not dealt. ‘As between the immediate
parties to the sale [the notice requirement] is a sound commercial rule, designed
to protect the seller against unduly delayed claims for damages. As applied to
personal injuries, and notice to a remote seller, it becomes a booby-trap for the
unwary.’ ” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27
Cal.Rptr. 697, 377 P.2d 897], internal citations omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 71, 72
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, §§ 3.21–3.23,
3.25–3.26
2 California UCC Sales & Leases (Cont.Ed.Bar) Leasing of Goods, §§ 19.31–19.32
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.31[2][a] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.106 (Matthew Bender)
California Civil Practice: Business Litigation §§ 53:5–53:7 (Thomson Reuters)
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3211. Breach of Implied Warranty of Fitness for a Particular
Purpose—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because the [consumer good] was not suitable for [his/her/nonbinary
pronoun] intended use. This is known as a “breach of an implied
warranty.” To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] bought a[n] [consumer good]
[from/manufactured by/distributed by] [name of defendant];
2. That, at the time of purchase, [name of defendant] knew or had
reason to know that [name of plaintiff] intended to use the
[consumer good] for a particular purpose;
3. That, at the time of purchase, [name of defendant] knew or had
reason to know that [name of plaintiff] was relying on [his/her/
nonbinary pronoun/its] skill and judgment to select or provide a
[consumer good] that was suitable for that particular purpose;
4. That [name of plaintiff] justifiably relied on [name of defendant]’s
skill and judgment;
5. That the [consumer good] was not suitable for the particular
purpose;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s breach of the implied warranty was a
substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised November 2018
Directions for Use
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines such proof is necessary, add the
following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] was not suitable for its
intended use;
See also CACI No. 1243, Notification/Reasonable Time.
If appropriate to the facts, add: “It is not necessary for [name of plaintiff] to prove
the cause of a defect of the [consumer good].” The Song-Beverly Consumer
Warranty Act does not require a consumer to prove the cause of the defect or
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failure, only that the consumer good “did not conform to the express warranty.”
(See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn. 8
[109 Cal.Rptr.2d 583].)
In addition to sales of consumer goods, the Consumer Warranty Act applies to
leases of consumer goods—see Civil Code sections 1791(g)–(i) and 1795.4. This
instruction may be modified for use in cases involving the implied warranty of
fitness in a lease of consumer goods.
Sources and Authority
• “Implied Warranty of Fitness” Defined. Civil Code section 1791.1(b).
• Remedies for Breach of Warranty of Fitness. Civil Code section 1791.1(d).
• Waiver of Warranty of Fitness. Civil Code section 1792.3.
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• Measure of Damages. Civil Code section 1794(b).
• Manufacturer’s Implied Warranty of Fitness. Civil Code section 1792.1.
• Retailer’s or Distributor’s Implied Warranty of Fitness. Civil Code section
1792.2(a).
• Damages for Nonconforming Goods. California Uniform Commercial Code
section 2714(1).
• Damages for Breach of Warranty. California Uniform Commercial Code section
2714(2).
• “The Consumer Warranty Act makes . . . an implied warranty [of fitness for a
particular purpose] applicable to retailers, distributors, and manufacturers . . . .
An implied warranty of fitness for a particular purpose arises only where (1) the
purchaser at the time of contracting intends to use the goods for a particular
purpose, (2) the seller at the time of contracting has reason to know of this
particular purpose, (3) the buyer relies on the seller’s skill or judgment to select
or furnish goods suitable for the particular purpose, and (4) the seller at the time
of contracting has reason to know that the buyer is relying on such skill and
judgment.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 25 [220 Cal.Rptr.
392], internal citations omitted.)
• “ ‘A “particular purpose” differs from the ordinary purpose for which the goods
are used in that it envisages a specific use by the buyer which is peculiar to the
nature of his business whereas the ordinary purposes for which goods are used
are those envisaged in the concept of merchantability and go to uses which are
customarily made of the goods in question.’ ” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295, fn. 2 [44 Cal.Rptr.2d 526],
internal citation omitted.)
• “The reliance elements are important to the consideration of whether an implied
warranty of fitness for a particular purpose exists . . . . The major question in
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determining the existence of an implied warranty of fitness for a particular
purpose is the reliance by the buyer upon the skill and judgment of the seller to
select an article suitable for his needs.” (Keith, supra, 173 Cal.App.3d at p. 25,
internal citations omitted.)
• “The question of reimbursement or replacement is relevant only under [Civil
Code] section 1793.2 . . . . [T]his section applies only when goods cannot be
made to conform to the ‘applicable express warranties.’ It has no relevance to
the implied warranty of merchantability.” (Music Acceptance Corp. v. Lofing
(1995) 32 Cal.App.4th 610, 620 [39 Cal.Rptr.2d 159].)
• “The Song-Beverly Act incorporates the provisions of [California Uniform
Commercial Code] sections 2314 and 2315. It ‘supplements, rather than
supersedes, the provisions of the California Uniform Commercial Code’ by
broadening a consumer’s remedies to include costs, attorney’s fees, and civil
penalties.” (American Suzuki Motor Corp., supra, 37 Cal.App.4th at p. 1295, fn.
2, internal citation omitted.)
• “The notice requirement of [former Civil Code] section 1769 . . . is not an
appropriate one for the court to adopt in actions by injured consumers against
manufacturers with whom they have not dealt. As between the immediate parties
to the sale [the notice requirement] is a sound commercial rule, designed to
protect the seller against unduly delayed claims for damages. As applied to
personal injuries, and notice to a remote seller, it becomes a booby-trap for the
unwary.’ ” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27
Cal.Rptr. 697, 377 P.2d 897], internal citations omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 73, 78
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, §§ 3.33–3.40
2 California UCC Sales & Leases (Cont.Ed.Bar) Leasing of Goods, §§ 19.31–19.32
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.31[2][b] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.64 et seq. (Matthew
Bender)
California Civil Practice: Business Litigation §§ 53:5–53:7 (Thomson Reuters)
462
Copyright Judicial Council of California
3212. Duration of Implied Warranty
An implied warranty is in effect for one year after the sale of the
[consumer good], unless a shorter period is stated in a writing that comes
with the [consumer good], provided that the shorter period is reasonable.
In no event will an implied warranty be in effect for less than 60 days.
[The time period of an implied warranty is lengthened by the number of
days that the [consumer good] was made available by [name of plaintiff]
for repairs under the warranty, including any delays caused by
circumstances beyond [name of plaintiff]’s control].
New September 2003
Directions for Use
If the consumer goods at issue are not new, the instruction must be modified to
reflect the shorter implied warranty period provided in Civil Code section 1795.5(c)
(i.e., no less than 30 days but no more than three months).
Sources and Authority
• Duration of Implied Warranties. Civil Code section 1791.1(c).
• Tolling of Warranty Period for Nonconforming Goods. Civil Code section
1795.6.
• Distributor or Seller of Used Consumer Goods. Civil Code section 1795.5.
• “On appeal, [defendants] concede that the duration provision is not a statute of
limitations and that the applicable statute of limitations is four years. They argue,
however, that the judgment can be affirmed on other grounds. Among other
arguments, they contend that the duration provision of the Song-Beverly Act
should be interpreted as barring an action for breach of the implied warranty of
merchantability when the purchaser fails to discover and report the defect to the
seller within the time period specified in that provision. We reject this argument
because the plain language of the statute, particularly in light of the consumer
protection policies supporting the Song-Beverly Act, make clear that the statute
merely creates a limited, prospective duration for the implied warranty of
merchantability; it does not create a deadline for discovering latent defects or for
giving notice to the seller.” (Mexia v. Rinker Boat Co., Inc. (2009) 174
Cal.App.4th 1297, 1301 [95 Cal.Rptr.3d 285].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 335
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.17
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.51–502.52 (Matthew Bender)
463
Copyright Judicial Council of California
CACI No. 3212 SONG-BEVERLY CONSUMER WARRANTY ACT
20 California Points and Authorities, Ch. 206, Sales, § 206.117 (Matthew Bender)
California Civil Practice: Business Litigation § 53:7 (Thomson Reuters)
3213–3219. Reserved for Future Use
464
Copyright Judicial Council of California
3220. Affirmative Defense—Unauthorized or Unreasonable Use
[Name of defendant] is not responsible for any harm to [name of plaintiff]
if [name of defendant] proves that the [[specify defect(s) in the consumer
good]/failure to match the [written/implied] warranty] [was/were] caused
by unauthorized or unreasonable use of the [consumer good] after it was
sold.
New September 2003; Revised February 2005, November 2018
Sources and Authority
• Unauthorized or Unreasonable Use. Civil Code section 1794.3.
• “The Song-Beverly Act provides that a breach of the warranty of merchantability
occurs when a good becomes unfit for the ordinary purpose for which it is used.
An exception occurs when the defect or nonconformity is caused by the buyer’s
unauthorized or unreasonable use under Civil Code section 1794.3. ‘It is a
“familiar” and “longstanding” legal principle that “ ‘[w]hen a proviso . . .
carves an exception out of the body of a statute or contract those who set up
such exception must prove it.’ ” [Citations.]’ Defendant, as the party claiming the
exemption from the Song-Beverly Act, had the burden to prove the
exemption. . . . Plaintiff alleged the vehicle became unfit and presented
uncontradicted evidence that the vehicle had ceased functioning; to avail itself of
Civil Code section 1794.3, defendant had to allege and prove that,
notwithstanding the unfitness, the Song-Beverly Act did not apply due to
plaintiff’s improper use or maintenance.” (Jones v. Credit Auto Center, Inc.
(2015) 237 Cal.App.4th Supp. 1, 10–11 [188 Cal.Rptr.3d 578], internal citations
omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 321, 322
California Products Liability Actions, Ch. 8, Defenses, § 8.07[7] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51
(Matthew Bender)
California Civil Practice: Business Litigation § 53:59 (Thomson Reuters)
465
Copyright Judicial Council of California
3221. Affirmative Defense—Disclaimer of Implied Warranties
[Name of defendant] claims that it did not breach any implied warranties
because the [consumer good] was sold on an “as is” or “with all faults”
basis. To succeed, [name of defendant] must prove both of the following:
1. That at the time of sale a clearly visible written notice was
attached to the [consumer good]; and
2. That the written notice, in clear and simple language, told the
buyer each of the following:
a. That the [consumer good] was being sold on an “as is” or
“with all faults” basis;
b. That the buyer accepted the entire risk of the quality and
performance of the [consumer good]; and
c. That if the [consumer good] were defective, the buyer would be
responsible for the cost of all necessary servicing or repair.
New September 2003; Revised June 2010
Directions for Use
If the consumer goods in question were sold by means of a mail-order catalog, the
instruction must be modified in accordance with Civil Code section 1792.4(b).
In addition to sales of consumer goods, the Consumer Warranty Act applies to
leases—see Civil Code sections 1791(g)–(i) and 1795.4. This instruction may be
modified for use in cases involving leases of consumer goods.
If at the time of sale, or within 90 days thereafter, the defendant sold the plaintiff a
service contract that applied to the product, the federal Magnuson-Moss
Warranty—Federal Trade Commission Improvement Act preempts use of this
defense. (See 15 U.S.C. § 2308.)
Sources and Authority
• Waiver of Implied Warranties. Civil Code section 1792.3.
• “As Is” Sale. Civil Code section 1791.3.
• Conspicuous Writing Required. Civil Code section 1792.4.
• Express Warranty Does Not Preempt Implied Warranty. Civil Code section 1793.
• When Waiver of Implied Warranties Allowed. Civil Code section 1792.5.
• Lessor’s Disclaimer of Warranties on Re-lease. Civil Code section 1795.4(e).
• “Unless specific disclaimer methods are followed, an implied warranty of
merchantability accompanies every retail sale of consumer goods in the state.”
(Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 619 [39
466
Copyright Judicial Council of California
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3221
Cal.Rptr.2d 159].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 91
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, §§ 3.53–3.61
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.34[3], Ch. 8, Defenses, § 8.07[5][c] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.72 et seq. (Matthew
Bender)
California Civil Practice: Business Litigation §§ 53:8–53:9, 53:58 (Thomson
Reuters)
467
Copyright Judicial Council of California
3222. Affirmative Defense—Statute of Limitations (Cal. U. Com.
Code, § 2725)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that
[the date of [tender of] delivery occurred before [insert date four years
before filing of complaint].]
[or]
[any breach was discovered or should have been discovered before [insert
date four years before filing of complaint].]
New June 2010; Renumbered from CACI No. 3213 June 2012
Directions for Use
Use this instruction to assert a limitation defense based on the four-year period of
California Uniform Commercial Code section 2725. (See Mexia v. Rinker Boat Co.,
Inc. (2009) 174 Cal.App.4th 1297, 1305 [95 Cal.Rptr.3d 285] [four-year statute of
Cal. U. Com. Code, § 2725 applies to warranty claims under the Song-Beverly
Consumer Warranty Act].)
A breach of warranty occurs when tender of delivery is made. (Cal. U. Com. Code,
§ 2725(2).) Include “tender of” if actual delivery was not made or if delivery was
made after tender. If whether a proper tender was made is at issue, the jury should
be instructed on the meaning of “tender.” (See Cal. U. Com. Code, § 2503.)
Under the statute, a breach of warranty occurs when tender of delivery is made
regardless of the aggrieved party’s knowledge of the breach—that is, there is no
delayed-discovery rule. However, if an express warranty explicitly extends to future
performance of the goods (for example, a warranty to repair defects for three years
or 30,000 miles) and discovery of the breach must await the time of the
performance, the cause of action accrues when the breach is or should have been
discovered. (Cal. U. Com. Code, § 2725(2).) In such a case, give the second option
in the second sentence. If delayed discovery is alleged, CACI No. 455, Statute of
Limitations—Delayed Discovery, may be adapted for use. (See Krieger v. Nick
Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215–220 [285 Cal.Rptr. 717].)
Under the California Uniform Commercial Code, by the original agreement the
parties may reduce the period of limitation to not less than one year but may not
extend it. (Cal. U. Com. Code, § 2725(1).) Presumably, this provision does not
apply to claims under the Song-Beverly Act. (See Civ. Code, §§ 1790.1 [buyer’s
waiver of rights under Song-Beverly Act is unenforceable], 1790.3 [in case of
conflict, provisions of Song-Beverly Act control over Cal. U. Com. Code].)
468
Copyright Judicial Council of California
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3222
Sources and Authority
• Statute of Limitations Under Commercial Code. California Uniform Commercial
Code section 2725.
• Buyer’s Waiver of Song-Beverly Protections Not Enforceable. Civil Code section
1790.1.
• Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.
• “The [Song Beverly] Act was intended to supplement the provisions of the
California Uniform Commercial Code, rather than to supersede the rights and
obligations created by that statutory scheme. (See Civ. Code, § 1790.3.)
California Uniform Commercial Code section 2725 specifically governs actions
for breach of warranty in a sales context. We conclude that this special statute of
limitations controls rather than the general provision of Code of Civil Procedure
section 338, subdivision (a) for liabilities created by statute.” (Krieger, supra,
234 Cal.App.3d at p. 215.)
• “[Defendants] now concede that the statute of limitations for an action for
breach of warranty under the Song-Beverly Act is four years pursuant to section
2725 of the California Uniform Commercial Code. Under that statute, a cause of
action for breach of warranty accrues, at the earliest, upon tender of delivery.
Thus, the earliest date the implied warranty of merchantability regarding
[plaintiff]’s boat could have accrued was the date [plaintiff] purchased it . . . .
Because he filed this action three years seven months after that date, he did so
within the four-year limitations period. Therefore, [plaintiff]’s action is not
barred by a statute of limitations.” (Mexia, supra, 174 Cal.App.4th at p. 1306.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 214
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 474, 519, 962
1 California Products Liability Actions, Ch. 8, Statute of Limitations, § 8.02[2]
(Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 500, Sales Under the Commercial
Code, § 500.78 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.38, 206.61, 206.62
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 4,
Determining Applicable Statute of Limitations and Effect on Potential Action, 4.05
3223–3229. Reserved for Future Use
469
Copyright Judicial Council of California
3230. Continued Reasonable Use Permitted
The fact that [name of plaintiff] continued to use the [consumer good/new
motor vehicle] after delivering it for repair does not waive
[his/her/nonbinary pronoun] right to demand replacement or
reimbursement. Nor does it reduce the amount of damages that you
should award to [name of plaintiff] if you find that [he/she/nonbinary
pronoun] has proved [his/her/nonbinary pronoun] claim against [name of
defendant].
New June 2012; Revised May 2020
Directions for Use
Give this instruction to make it clear to the jury that the fact that the buyer
continued to use the product after delivering it for repair does not waive the buyer’s
right to reimbursement and damages. (See Jiagbogu v. Mercedes-Benz USA (2004)
118 Cal.App.4th 1235, 1240–1244 [13 Cal.Rptr.3d 679].) Continued use is relevant,
however, to the jury’s consideration of whether the vehicle was substantially
impaired. See CACI No. 3204, “Substantially Impaired” Explained, factor (d).
There may be some uncertainty about the defendant’s right to a damages offset for
continued use. In an older case, the court held that principles of rescission under the
Uniform Commercial Code survive under the Song-Beverly Consumer Warranty
Act, and that the seller remains protected through a recoupment right of setoff for
the buyer’s use of the good beyond the time of revoking acceptance. (Ibrahim v.
Ford Motor Co. (1989) 214 Cal.App.3d 878, 898 [263 Cal.Rptr. 64].) However, a
more recent case rejected the proposition that pre Song-Beverly Commercial Code
rules on continued use survive under Song-Beverly. (See Jiagbogu, supra, 118
Cal.App.4th at p. 1240.) The last sentence of this instruction is based on Jiagbogu,
but in light of the potential uncertainty on the damages offset issue, the trial court
will need to decide whether Jiagbogu or Ibrahim states the applicable rule.
Sources and Authority
• “[Defendant] contends that [plaintiff]’s request for restitution amounted to a
rescission. But [Civil Code] section 1793.2 does not refer to rescission or any
portion of the Commercial Code that discusses rescission. The [Song-Beverly]
Act does not parallel the Commercial Code; it provides different and more
extensive consumer protections. [Plaintiff] did not invoke rescission, or any of
the common law doctrines or Commercial Code provisions relating to that
remedy. It would not matter if he had referred to rescission in his buyback
request, as long as he sought a remedy only under the Act, which contains no
provision requiring formal rescission to obtain relief. [Defendant] acknowledges
in its brief that [plaintiff] requested refund or replacement. That comports with a
claim under the Act, not with a traditional cause of action for rescission.”
470
Copyright Judicial Council of California
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3230
(Jiagbogu, supra, 118 Cal.App.4th at p. 1240, original italics, internal citations
omitted.)
• “Within the context of the California Uniform Commercial Code courts around
the country are in general agreement that reasonable continued use of motorized
vehicles does not, as a matter of law, prevent the buyer from asserting rescission
(or its U.Com.Code equivalent, revocation of acceptance). This consensus is
based upon the judicial recognition of practical realities—purchasers of
unsatisfactory vehicles may be compelled to continue using them due to the
financial burden to securing alternative means of transport for a substantial
period of time. The seller remains protected through a recoupment right of setoff
for the buyer’s use of the good beyond the time of revoking acceptance.”
(Ibrahim, supra, 214 Cal.App.3d at pp. 897–898, internal citations omitted.)
• “Nothing in the language of either the Uniform Commercial Code or the Song-
Beverly Act suggests that abrogation of the common law principles relating to
continued use and waiver of a buyer’s right to rescind was intended. The former
expressly specifies that ‘the principles of law and equity . . . shall supplement
its provisions.’ (Cal. U. Com. Code, § 1103.) The legal principles governing
continued use quoted previously are thus still applicable, as are the rules
regulating the equitable right of setoff.” (Ibrahim, supra, 214 Cal.App.3d at p.
898, internal citations omitted.)
• “Since we reject [defendant]’s basic argument that a request for replacement or
refund under the Act constitutes rescission, we find no error in the trial court’s
refusal to instruct on waiver of right to rescind or on statutory offsets for
postrescission use.” (Jiagbogu, supra, 118 Cal.App.4th at p. 1242.)
• “[Civil Code] Section 1793.2, subdivision (d)(2)(C), and (d)(2)(A) and (B) to
which it refers, comprehensively addresses replacement and restitution; specified
predelivery offset; sales and use taxes; license, registration, or other fees; repair,
towing, and rental costs; and other incidental damages. None contains any
language authorizing an offset in any situation other than the one specified. This
omission of other offsets from a set of provisions that thoroughly cover other
relevant costs indicates legislative intent to exclude [post-delivery use] offsets.”
(Jiagbogu, supra, 118 Cal.App.4th at pp. 1243–1244.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 199, 325 et seq.
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.18 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales, § 502.42 (Matthew
Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.102 et seq. (Matthew
Bender)
30 California Legal Forms: Transaction Guide, Ch. 92, Service Contracts, § 92.53
(Matthew Bender)
471
Copyright Judicial Council of California
3231. Continuation of Express or Implied Warranty During Repairs
(Civ. Code, § 1795.6)
Regardless of what the warranty says, if a defect exists within the
warranty period and the [consumer good/new motor vehicle] has been
returned for repairs, the warranty will not expire until the defect has
been fixed. [Name of plaintiff] must have notified [name of defendant] of
the failure of the repairs within 60 days after they were completed. The
warranty period will also be extended for the amount of time that the
warranty repairs have not been performed because of delays caused by
circumstances beyond the control of [name of plaintiff].
New June 2012
Directions for Use
Give this instruction if it might appear to the jury from the language of an express
or implied warranty that the warranty should have expired during the course of
repairs. By statute, the warranty cannot expire until the problem has been resolved
as long as the defendant had notice that the defect had not been repaired. (Civ.
Code, § 1795.6(b).)
Sources and Authority
• Continuation of Express Warranty During Repairs. Civil Code section 1795.6.
• Notice Required in Work Order or Repair Invoice. Civil Code section
1793.1(a)(2).
• “There is no support in the law for instructing the jury that if a defect exists
within the warranty period, the warranty continues in perpetuity until the defect
has been diagnosed and fixed. It was error to give the special instruction, an
incomplete and misleading statement that does not comport with the law of
express warranty or with the lemon law provision on tolling. The proper
instruction was CACI No. 3231.” (Ruiz Nunez v. FCA US LLC (2021) 61
Cal.App.5th 385, 396 [275 Cal.Rptr.3d 618].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 323
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 539, 760
44 California Forms of Pleading and Practice, Ch. 502, Sales, § 502.52 (Matthew
Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.100, 206.102 (Matthew
Bender)
21 California Legal Forms: Transaction Guide, Ch. 52, Sales of Goods Under the
Uniform Commercial Code, § 52.128 (Matthew Bender)
472
Copyright Judicial Council of California
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3231
30 California Legal Forms: Transaction Guide, Ch. 92, Service Contracts, § 92.52
(Matthew Bender)
3232–3239. Reserved for Future Use
473
Copyright Judicial Council of California
3240. Reimbursement Damages—Consumer Goods (Civ. Code,
§§ 1793.2(d)(1), 1794(b))
If you decide that [name of defendant] or its representative failed to
repair or service the [consumer good] to match the [written warranty/
represented quality] after a reasonable number of opportunities, then
[name of plaintiff] is entitled to be reimbursed for the purchase price of
the [consumer good], less the value of its use by [name of plaintiff] before
discovering the defect.
[Name of plaintiff] must prove the amount of the purchase price, and
[name of defendant] must prove the value of the use of the [consumer
good].
New September 2003; Revised December 2011
Directions for Use
This instruction is intended for use with claims involving consumer goods under the
Song-Beverly Consumer Warranty Act. The remedy is replacement of the goods or
reimbursement measured by the purchase price minus the value of the plaintiff’s use
before discovery of the defect. (Civ. Code, § 1793.2(d)(1).) For claims involving
new motor vehicles, see CACI No. 3241, Restitution From Manufacturer—New
Motor Vehicle.
The basic measure of damages provided for in the Song-Beverly Act for all claims
is replacement or reimbursement plus additional remedies provided by the California
Uniform Commercial Code. (Civ. Code, § 1794(b); see Cal. U. Com. Code,
§§ 2711–2715.) The remedies for consumer goods are also available for implied-
warranty claims. (See Civ. Code, § 1791.1(d).) The first paragraph of this instruction
can be modified if it is being used for claims other than those brought under Civil
Code section 1793.2(d)(1). See also CACI No. 3242, Incidental Damages, and
CACI No. 3243, Consequential Damages.
Sources and Authority
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d)(1).
• California Uniform Commercial Code Remedies Available. Civil Code section
1794(b).
• California Uniform Commercial Code Remedies for Breach of Implied Warranty.
Civil Code section 1791.1(d).
• “The clear mandate of section 1794 . . . is that the compensatory damages
recoverable for breach of the [Song-Beverly Consumer Warranty] Act are those
available to a buyer for a seller’s breach of a sales contract.” (Kwan v.
Mercedes-Benz of N. Am. (1994) 23 Cal.App.4th 174, 188 [28 Cal.Rptr.2d 371].)
474
Copyright Judicial Council of California
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3240
• “[I]n the usual situation, emotional distress damages are not recoverable under
the Song-Beverly Consumer Warranty Act.” (Music Acceptance Corp. v. Lofing
(1995) 32 Cal.App.4th 610, 625, fn. 15 [39 Cal.Rptr.2d 159]); see also Kwan,
supra, 23 Cal.App.4th at pp. 187–192.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 331, 334
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.90
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.43
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.103 (Matthew Bender)
California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
475
Copyright Judicial Council of California
3241. Restitution From Manufacturer—New Motor Vehicle (Civ.
Code, §§ 1793.2(d)(2), 1794(b))
If you decide that [name of defendant] or its authorized repair facility
failed to repair the defect(s) after a reasonable number of opportunities,
then [name of plaintiff] is entitled to recover the amounts
[he/she/nonbinary pronoun] proves [he/she/nonbinary pronoun] paid for the
car, including:
1. The amount paid to date for the vehicle, including finance
charges [and any amount still owed by [name of plaintiff]];
2. Charges for transportation and manufacturer-installed options;
and
3. Sales tax, use tax, license fees, registration fees, and other official
fees.
In determining the purchase price, do not include any charges for items
supplied by someone other than [name of defendant].
[[Name of plaintiff]’s recovery must be reduced by the value of the use of
the vehicle before it was [brought in/submitted] for repair. [Name of
defendant] must prove how many miles the vehicle was driven between
the time when [name of plaintiff] took possession of the vehicle and the
time when [name of plaintiff] first delivered it to [name of defendant] or its
authorized repair facility to fix the defect. [Insert one of the following:]
[Using this mileage number, I will reduce [name of plaintiff]’s
recovery based on a formula.]
[Multiply this mileage number by the purchase price, including any
charges for transportation and manufacturer-installed options, and
divide that amount by 120,000. Deduct the resulting amount from
[name of plaintiff]’s recovery.]]
New September 2003; Revised February 2005, June 2005, December 2011, June
2012
Directions for Use
This instruction is intended for use with claims involving new motor vehicles under
the Song-Beverly Consumer Warranty Act. The remedy is replacement of the vehicle
or restitution. (Civ. Code, § 1793.2(d)(2).) For claims involving other consumer
goods, see CACI No. 3240, Reimbursement Damages—Consumer Goods.
Incidental damages are recoverable as part of restitution. (Civ. Code,
§ 1793.2(d)(2)(B).) For an instruction on incidental damages, see CACI No. 3242,
Incidental Damages. See also CACI No. 3243, Consequential Damages.
476
Copyright Judicial Council of California
SONG-BEVERLY CONSUMER WARRANTY ACT CACI No. 3241
The remedies for new motor vehicles provided by Civil Code section 1793.2(d)(2)
apply to all claims under the Song-Beverly Consumer Warranty Act. (Civ. Code,
§ 1794(b).) These remedies are also available for implied-warranty claims. (See Civ.
Code, § 1791.1(d).) The first paragraph of this instruction can be modified if it is
being used for claims other than those brought under Civil Code section
1793.2(d)(2).
Modify element 1 depending on whether plaintiff still has an outstanding obligation
on the financing of the vehicle.
The last two bracketed options are intended to be read in the alternative. Use the
last bracketed option if the court desires for the jury to make the calculation of the
deduction. The “formula” referenced in the last bracketed paragraph can be found at
Civil Code section 1793.2(d)(2)(C).
Additional remedies under the California Uniform Commercial Code are provided
for “goods.” (See Civ. Code, § 1794(b).) Although consumer goods and new motor
vehicles are treated differently under Civil Code section 1793.2, “consumer goods”
are defined broadly under Song-Beverly (see Civ. Code, § 1791(a) [“consumer
goods” means any new product or part thereof that is used, bought, or leased for use
primarily for personal, family, or household purposes, except for clothing and
consumables]). At least one court has applied the California Uniform Commercial
Code remedies for new motor vehicles. (See Krotin v. Porsche Cars North America,
Inc. (1995) 38 Cal.App.4th 294, 302 [45 Cal.Rptr.2d 10].)
Sources and Authority
• Measure of Buyer’s Damages. Civil Code section 1794(b).
• Replacement or Reimbursement After Reasonable Number of Repair Attempts:
New Motor Vehicle. Civil Code section 1793.2(d)(2).
• “[A]s the conjunctive language in Civil Code section 1794 indicates, the statute
itself provides an additional measure of damages beyond replacement or
reimbursement and permits, at the option of the buyer, the Commercial Code
measure of damages which includes ‘the cost of repairs necessary to make the
goods conform.’ ” (Krotin, supra, 38 Cal.App.4th at p. 302, internal citation
omitted.)
• “[I]n the usual situation, emotional distress damages are not recoverable under
the Song-Beverly Consumer Warranty Act.” (Music Acceptance Corp. v. Lofing
(1995) 32 Cal.App.4th 610, 625, fn. 15 [39 Cal.Rptr.2d 159], emphasis in
original; see also Kwan v. Mercedes-Benz of N. Am. (1994) 23 Cal.App.4th 174,
187–192 [28 Cal.Rptr.2d 371].)
• “[F]inding an implied prohibition on recovery of finance charges would be
contrary to both the Song-Beverly Consumer Warranty Act’s remedial purpose
and section 1793.2(d)(2)(B)’s description of the refund remedy as restitution. A
more reasonable construction is that the Legislature intended to allow a buyer to
recover the entire amount actually expended for a new motor vehicle, including
paid finance charges, less any of the expenses expressly excluded by the statute.”
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(Mitchell v. Blue Bird Body Co. (2000) 80 Cal.App.4th 32, 37 [95 Cal.Rptr.2d
81].)
• “[Defendant] argues that [plaintiff] would receive a windfall if he is not required
to pay for using the car after his buyback request. But to give [defendant] an
offset for that use would reward it for its delay in replacing the car or refunding
[plaintiff]’s money when it had complete control over the length of that delay,
and an affirmative statutory duty to replace or refund promptly.” (Jiagbogu v.
Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1244 [13 Cal.Rptr.3d 679].)
• “[T]he imposition of a requirement that [plaintiff] mitigate his damages so as to
avoid rental car expenses—after [defendant] had a duty to respond promptly to
[plaintiff]’s demand for restitution—would reward [defendant] for its delay in
refunding [plaintiff]’s money.” (Lukather v. General Motors, LLC (2010) 181
Cal.App.4th 1041, 1053 [104 Cal.Rptr.3d 853].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 331, 334
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.90
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.18 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.127, 206.128 (Matthew
Bender)
California Civil Practice: Business Litigation § 53:26 (Thomson Reuters)
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3242. Incidental Damages
[Name of plaintiff] also claims additional reasonable expenses for [list
claimed incidental damages].
To recover these expenses, [name of plaintiff] must prove all of the
following:
1. That the expense was actually charged;
2. That the expense was reasonable; and
3. That [name of defendant]’s [breach of warranty/[other violation of
Song-Beverly Consumer Warranty Act]] was a substantial factor in
causing the expense.
New September 2003; Revised December 2011
Directions for Use
This instruction is for use if incidental damages are sought in an action under the
Song-Beverly Consumer Warranty Act. Incidental damages are allowed as part of
the restitution remedy for new motor vehicles. (Civ. Code, § 1793.2(d)(2)(B).) See
also CACI No. 3241, Restitution From Manufacturer—New Motor Vehicle.
With regard to claims for consumer goods, the availability of incidental damages
may be limited. If the plaintiff has elected to accept the goods, incidental damages
under California Uniform Commercial Code section 2715 and the cost of repairs
required to make the goods conform to the warranty are allowed. (Civ. Code,
§ 1794(b)(2).) If the buyer has rightfully rejected or justifiably revoked acceptance,
incidental damages are allowed under California Uniform Commercial Code sections
2711, 2712, and 2713 for the seller’s nondelivery or repudiation of the contract or in
connection with cover (obtaining replacement goods from another seller). (Civ.
Code, § 1794(b)(1).) If any of these matters are disputed, additional instructions will
be required on these points.
If incidental damages are otherwise recoverable, they are recoverable regardless of
the nature of the claim under Song-Beverly. (See Civ. Code, § 1794(b) [statute
covers all Song-Beverly actions].)
Sources and Authority
• Measure of Buyer’s Damages: Commercial Code Remedies Available. Civil
Code section 1794(b).
• Restitution Includes Incidental Damages. Civil Code section 1793.2(d)(2)(B).
• Buyer’s Remedies for Seller’s Breach. California Uniform Commercial Code
section 2711(1).
• Incidental Damages Recoverable. California Uniform Commercial Code sections
2712(2), 2713(1).
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• “Incidental Damages” Defined. California Uniform Commercial Code section
2715(1).
• “In light of the relevant legislative history and express language in the Act, we
conclude California Uniform Commercial Code section 2715’s reference to
losses must be construed and applied in the context of monetary losses actually
incurred.” (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 756
[52 Cal.Rptr.2d 134], original italics.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 325 et seq.
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.160
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.43 (Matthew Bender)
California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
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3243. Consequential Damages
[Name of plaintiff] also claims additional amounts for [list claimed
consequential damages].
To recover these damages, [name of plaintiff] must prove all of the
following:
1. That [name of defendant]’s [describe violation of Song-Beverly
Consumer Warranty Act] was a substantial factor in causing
damages to [name of plaintiff];
2. That the damages resulted from [name of plaintiff]’s requirements
and needs;
3. That [name of defendant] had reason to know of those
requirements and needs at the time of the [sale/lease] to [name of
plaintiff];
4. That [name of plaintiff] could not reasonably have prevented the
damages; and
5. The amount of the damages.
New September 2003; Revised December 2011
Directions for Use
This instruction is for use if the plaintiff claims consequential damages under the
Song-Beverly Consumer Warranty Act based on the plaintiff’s foreseeable needs or
requirements. (See Civ. Code, § 1794(b); Cal. U. Com. Code, § 2715(2)(a).)
The availability of consequential damages under Song-Beverly may be limited. If
the plaintiff has elected to accept the goods, consequential damages under California
Uniform Commercial Code section 2715 and the cost of repairs required to make
the goods conform to the warranty are allowed. (Civ. Code, § 1794(b)(2).) If the
buyer has rightfully rejected or justifiably revoked acceptance, consequential
damages are allowed under California Uniform Commercial Code sections 2711,
2712, and 2713 for the seller’s nondelivery or repudiation of the contract or in
connection with cover (obtaining replacement goods from another seller). (Civ.
Code, § 1794(b)(1).)
If consequential damages are otherwise recoverable, they are recoverable regardless
of the nature of the claim under Song-Beverly. (See Civ. Code, § 1794(b) [statute
covers all Song-Beverly actions].)
Sources and Authority
• Measure of Buyer’s Damages: California Uniform Commercial Code Remedies
Available. Civil Code section 1794(b).
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• Buyer’s Remedies for Seller’s Breach. California Uniform Commercial Code
section 2711(1).
• Consequential Damages Recoverable. California Uniform Commercial Code
sections 2712(2), 2713(1).
• “Consequential Damages” Defined. California Uniform Commercial Code section
2715(2).
• “In light of the relevant legislative history and express language in the Act, we
conclude California Uniform Commercial Code section 2715’s reference to
losses must be construed and applied in the context of monetary losses actually
incurred.” (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 756
[52 Cal.Rptr.2d 134], original italics.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 207
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.160
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.43 et seq. (Matthew
Bender)
California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
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3244. Civil Penalty—Willful Violation (Civ. Code, § 1794(c))
[Name of plaintiff] claims that [name of defendant]’s failure to [describe
obligation under Song-Beverly Consumer Warranty Act, e.g., repurchase or
replace the vehicle after a reasonable number of repair opportunities] was
willful and therefore asks that you impose a civil penalty against [name
of defendant]. A civil penalty is an award of money in addition to a
plaintiff’s damages. The purpose of this civil penalty is to punish a
defendant or discourage [him/her/nonbinary pronoun/it] from committing
violations in the future.
If [name of plaintiff] has proved that [name of defendant]’s failure was
willful, you may impose a civil penalty against [him/her/nonbinary
pronoun/it]. The penalty may be in any amount you find appropriate, up
to a maximum of two times the amount of [name of plaintiff]’s actual
damages.
“Willful” means that [name of defendant] knew of [his/her/nonbinary
pronoun/its] legal obligations and intentionally declined to follow them.
However, a violation is not willful if you find that [name of defendant]
reasonably and in good faith believed that the facts did not require
[describe statutory obligation, e.g., repurchasing or replacing the vehicle].
New September 2003; Revised February 2005, December 2005, December 2011,
May 2018, November 2018
Directions for Use
This instruction is intended for use when the plaintiff requests a civil penalty under
Civil Code section 1794(c). In the opening paragraph, set forth all claims for which
a civil penalty is sought.
An automobile buyer may also obtain a penalty of two times actual damages
without a showing of willfulness under some circumstances. (See Civ. Code,
§ 1794(e).) However, a buyer who recovers a civil penalty for a willful violation
may not also recover a second civil penalty for the same violation. (Civ. Code,
§ 1794(e)(5).) If the buyer seeks a penalty for either a willful or a nonwillful
violation in the alternative, the jury must be instructed on both remedies. (See
Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 11 [28 Cal.Rptr.2d
133].) A special instruction will be needed for the nonwillful violation. (See Suman
v. Superior Court (1995) 39 Cal.App.4th 1309, 1322 [46 Cal.Rptr.2d 507] (Suman
II) [setting forth instructions to be given on retrial].)
Depending on the nature of the claim at issue, factors that the jury may consider in
determining willfulness may be added. (See, e.g., Jensen v. BMW of North America,
Inc. (1995) 35 Cal.App.4th 112, 136 [41 Cal.Rptr.2d 295] [among factors to be
considered by the jury are whether (1) the manufacturer knew the vehicle had not
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been repaired within a reasonable period or after a reasonable number of attempts,
and (2) whether the manufacturer had a written policy on the requirement to repair
or replace].)
Sources and Authority
• Civil Penalty for Willful Violation. Civil Code section 1794(c).
• “[I]f the trier of fact finds the defendant willfully violated its legal obligations to
plaintiff, it has discretion under [Civil Code section 1794,] subdivision (c) to
award a penalty against the defendant. Subdivision (c) applies to suits
concerning any type of ‘consumer goods,’ as that term is defined in section 1791
of the Act.” (Suman v. Superior Court (1995) 39 Cal.App.4th 1309, 1315 [46
Cal.Rptr.2d 507].)
• “Whether a manufacturer willfully violated its obligation to repair the car or
refund the purchase price is a factual question for the jury that will not be
disturbed on appeal if supported by substantial evidence.” (Oregel v. American
Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104 [109 Cal.Rptr.2d 583].
• “ ‘In civil cases, the word “willful,” as ordinarily used in courts of law, does not
necessarily imply anything blamable, or any malice or wrong toward the other
party, or perverseness or moral delinquency, but merely that the thing done or
omitted to be done was done or omitted intentionally. It amounts to nothing
more than this: That the person knows what he is doing, intends to do what he is
doing, and is a free agent.’ ” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d
878, 894 [263 Cal.Rptr. 64], internal citations omitted.)
• “In regard to the willful requirement of Civil Code section 1794, subdivision (c),
a civil penalty may be awarded if the jury determines that the manufacturer
‘knew of its obligations but intentionally declined to fulfill them. There is no
requirement of blame, malice or moral delinquency. However, ‘. . . a violation
is not willful if the defendant’s failure to replace or refund was the result of a
good faith and reasonable belief the facts imposing the statutory obligation were
not present.’ ” (Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th
1242, 1249–1250 [40 Cal.Rptr.2d 576], original italics, internal citations omitted;
see also Bishop v. Hyundai Motor Am. (1996) 44 Cal.App.4th 750, 759 [52
Cal.Rptr.2d 134] [defendant agreed that jury was properly instructed that it
“acted ‘willfully’ if you determine that it knew of its obligations under the Song-
Beverly Act but intentionally declined to fulfill them”].)
• “[A] violation . . . is not willful if the defendant’s failure to replace or refund
was the result of a good faith and reasonable belief the facts imposing the
statutory obligation were not present. This might be the case, for example, if the
manufacturer reasonably believed the product did conform to the warranty, or a
reasonable number of repair attempts had not been made, or the buyer desired
further repair rather than replacement or refund. [¶] Our interpretation of section
1794(c) is consistent with the general policy against imposing forfeitures or
penalties against parties for their good faith, reasonable actions. Unlike a
standard requiring the plaintiff to prove the defendant actually knew of its
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obligation to refund or replace, which would allow manufacturers to escape the
penalty by deliberately remaining ignorant of the facts, the interpretation we
espouse will not vitiate the intended deterrent effect of the penalty. And unlike a
simple equation of willfulness with volition, which would render ‘willful’
virtually all cases of refusal to replace or refund, our interpretation preserves the
Act’s distinction between willful and nonwillful violations. Accordingly, ‘[a]
decision made without the use of reasonably available information germane to
that decision is not a reasonable, good faith decision.’ ” (Lukather v. General
Motors, LLC (2010) 181 Cal.App.4th 1041, 1051 [104 Cal.Rptr.3d 853], original
italics, internal citation omitted.)
• “[Defendant] was entitled to an instruction informing the jury its failure to
refund or replace was not willful if it reasonably and in good faith believed the
facts did not call for refund or replacement. Such an instruction would have
given the jury legal guidance on the principal issue before it in determining
whether a civil penalty could be awarded.” (Kwan v. Mercedes Benz of N. Am.
(1994) 23 Cal.App.4th 174, 186–187 [28 Cal.Rptr.2d 371], fn. omitted.)
• “There is evidence [defendant] was aware that numerous efforts to find and fix
the oil leak had been unsuccessful, which is evidence a jury may consider on the
question of willfulness. Additionally, the jury could conclude that [defendant]’s
policy, which requires a part be replaced or adjusted before [defendant] deems it
a repair attempt but excludes from repair attempts any visit during which a
mechanic searches for but is unable to locate the source of the problem, is
unreasonable and not a good faith effort to honor its statutory obligations to
repurchase defective cars. Finally, there was evidence that [defendant] adopted
internal policies that erected hidden obstacles to the ability of an unwary
consumer to obtain redress under the Act. This latter evidence would permit a
jury to infer that [defendant] impedes and resists efforts by a consumer to force
[defendant] to repurchase a defective car, regardless of the presence of an
unrepairable defect, and that [defendant]’s decision to reject [plaintiff]’s demand
was made pursuant to [defendant]’s policies rather than to its good faith and
reasonable belief the car did not have an unrepairable defect covered by the
warranty or that a reasonable number of attempts to effect a repair had not yet
occurred.” (Oregel, supra, 90 Cal.App.4th at pp. 1104–1105, internal citations
omitted.)
• “[T]he penalty under section 1794(c), like other civil penalties, is imposed as
punishment or deterrence of the defendant, rather than to compensate the
plaintiff. In this, it is akin to punitive damages. Neither punishment nor
deterrence is ordinarily called for if the defendant’s actions proceeded from an
honest mistake or a sincere and reasonable difference of factual evaluation. As
our Supreme Court recently observed, ‘. . . courts refuse to impose civil
penalties against a party who acted with a good faith and reasonable belief in the
legality of his or her actions.’ ” (Kwan, supra, 23 Cal.App.4th at pp. 184–185,
internal citation omitted.)
• “Thus, when the trial court concluded that subdivision (c)’s requirement of
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willfulness applies also to subdivision (e), and when it, in effect, instructed the
jury that subdivision (c)-type willfulness is the sole basis for awarding civil
penalties, the court ignored a special distinction made by the Legislature with
respect to the seller of new automobiles. In so doing, the court erred. The error
was prejudicial because it prevented the jurors from considering the specific
penalty provisions in subdivision (e) and awarding such penalties, in their
discretion, if they determined the evidence warranted such an award.” (Suman,
supra, 23 Cal.App.4th at p. 11.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 321–324
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.90
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.30
(Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§ 502.53[1][b] (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.129 (Matthew Bender)
California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
3245–3299. Reserved for Future Use
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VF-3200. Failure to Repurchase or Replace Consumer Good After
Reasonable Number of Repair Opportunities (Civ. Code,
§ 1793.2(d))
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] buy [a/an] [consumer good]
[from/distributed by/manufactured by] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] give [name of plaintiff] a warranty?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the [consumer good] fail to perform as represented in the
warranty?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] or its authorized repair facility repair the
[consumer good] to conform to the [written statement/represented
quality] after a reasonable number of opportunities?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] fail to replace the [consumer good] or
reimburse [name of plaintiff] the appropriate amount of money?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What amount is [name of plaintiff] entitled to receive as
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reimbursement for the [consumer good]? Calculate as follows:
Determine: Purchase price of the [consumer $
good]:
Subtract: Value of use by [name of plaintiff] $
before [he/she/nonbinary pronoun/
it] discovered the defect:
Subtract: The amount, if any, that [name of $
defendant] previously reimbursed
[name of plaintiff] for the [con-
sumer good]
TOTAL $
[7. What amount is plaintiff entitled to recover for [insert item(s) of
claimed incidental damages]? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, October 2008, December 2010, December
2011, December 2016
Directions for Use
This verdict form is based on CACI No. 3200, Failure to Repurchase or Replace
Consumer Good After Reasonable Number of Repair Opportunities—Essential
Factual Elements, and CACI No. 3240, Reimbursement Damages—Consumer
Goods.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff was unable to deliver the good, modify question 4 as in element 4 of
CACI No. 3200. See CACI No. VF-3201 for additional questions in the event the
plaintiff is claiming consequential damages. Question 7 can be used to account for
claimed incidental damages included under CACI No. 3242, Incidental Damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3201. Consequential Damages
We answer the questions submitted to us as follows:
1. Was [name of defendant]’s conduct a substantial factor in causing
damages to [name of plaintiff]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did the damages result from [name of plaintiff]’s requirements
and needs?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] have reason to know of those
requirements and needs at the time of the [sale/lease] to [name of
plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Could [name of plaintiff] reasonably have prevented the damages?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What is the amount of [name of plaintiff]’s damages?
$
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
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verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 3243, Consequential Damages.
Normally, this verdict form would be combined with verdict forms containing the
underlying cause(s) of action.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-3202. Failure to Repurchase or Replace Consumer Good After
Reasonable Number of Repair Opportunities—Affirmative
Defense—Unauthorized or Unreasonable Use (Civ. Code,
§ 1793.2(d))
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] buy [a/an] [consumer good]
[from/distributed by/manufactured by] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] give [name of plaintiff] a warranty?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the [consumer good] fail to perform as represented in the
warranty?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the failure to comply with the warranty caused by
unauthorized or unreasonable use of the [consumer good]
following its sale?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] or its authorized repair facility repair the
[consumer good] to conform to the [written statement/represented
quality] after a reasonable number of opportunities?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Did [name of defendant] fail to replace the [consumer good] or
reimburse [name of plaintiff] the appropriate amount of money?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What amount is [name of plaintiff] entitled to receive as
reimbursement for the [consumer good]? Calculate as follows:
Determine: Purchase price of the [consumer $
good]:
Subtract: Value of use by [name of plaintiff] $
before [he/she/nonbinary pronoun/
it] discovered the defect:
Subtract: The amount, if any, that [name of $
defendant] previously reimbursed
[name of plaintiff] for the [con-
sumer good]
TOTAL $
7. [Answer question 8.]
[8. What amount is [name of plaintiff] entitled to recover for [insert
item(s) of claimed incidental damages]? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, October 2008, December 2010, December
2011, December 2016
Directions for Use
This verdict form is based on CACI No. 3200, Failure to Repurchase or Replace
Consumer Good After Reasonable Number of Repair Opportunities—Essential
Factual Elements, CACI No. 3220, Affırmative Defense—Unauthorized or
Unreasonable Use, and CACI No. 3240, Reimbursement Damages—Consumer
Goods.
The special verdict forms in this section are intended only as models. They may
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need to be modified depending on the facts of the case.
If the plaintiff was unable to deliver the good, modify question 4 as in element 4 of
CACI No. 3200. See CACI No. VF-3201 for additional questions in the event the
plaintiff is claiming consequential damages. Question 8 can be used to account for
claimed incidental damages included under CACI No. 3242, Incidental Damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3203. Breach of Express Warranty—New Motor Vehicle—Civil
Penalty Sought
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [buy/lease] [a/an] [new motor vehicle] [from/
distributed by/manufactured by] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] give [name of plaintiff] a written
warranty?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the vehicle have a defect covered by the warranty that
substantially impaired the vehicle’s use, value, or safety to a
reasonable [buyer/lessee] in [name of plaintiff]’s situation?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] or its authorized repair facility fail to
repair the vehicle to match the written warranty after a
reasonable number of opportunities to do so?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] fail to promptly replace or repurchase the
vehicle?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. What are [name of plaintiff]’s damages? Calculate as follows:
6. Add the following amounts:
a. The purchase price of the vehicle
itself: $
b. Charges for transportation and manufacturer-
installed options: $
c. Finance charges actually paid by [name
of plaintiff]: $
d. Sales tax, license fees, registration fees,
and other official fees: $
e. Incidental and consequential
damages: $
e. [SUBTOTAL/TOTAL DAMAGES:] $
6. [Calculate the value of the use of the vehicle before it was
[brought in/submitted] for repair as follows:
1. Add dollar amounts listed in lines a
and b above: $
2. Multiply the result in step 1 by the
number of miles the vehicle was driven
before it was [brought in/submitted]
for repair: $
3. Divide the dollar amount in step 2 by
120,000 and insert result in VALUE
OF USE below:
3. VALUE OF USE: $
6. Subtract the VALUE OF USE from the SUBTOTAL above and
insert result in TOTAL DAMAGES below:
6. TOTAL DAMAGES: $ ]
6. [What is the number of miles that the vehicle was driven between
the time when [name of plaintiff] took possession of the vehicle
and the time when [he/she/nonbinary pronoun/it] first delivered the
vehicle to [name of defendant] or its authorized repair facility to
fix the problem?
6. Answer: miles]
6. Answer question 7.
7. Did [name of defendant] willfully fail to repurchase or replace the
[new motor vehicle]?
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7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What amount, if any, do you impose as a penalty? [You may not
exceed two times the “TOTAL DAMAGES” that you entered in
question 6.] $
PENALTY: $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, June 2005, December 2005,
February 2007, December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. Items of damages that do
not apply to the facts of the case may be omitted.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
This verdict form is based on CACI No. 3201, Failure to Promptly Repurchase or
Replace New Motor Vehicle After Reasonable Number of Repair
Opportunities—Essential Factual Elements, CACI No. 3241, Restitution From
Manufacturer—New Motor Vehicle, and CACI No. 3244, Civil Penalty—Willful
Violation. See CACI No. VF-3201 for additional questions in the event the plaintiff
is claiming consequential damages.
If plaintiff was unable to deliver the vehicle, modify question 4 as in element 4 of
CACI No. 3201. In question number 6, users have the option of either allowing the
jury to calculate the deduction for value of use or asking the jury for the relevant
mileage number only. The bracketed sentence in question 8 is intended to be given
only if the jury has been asked to calculate the deduction for value of use.
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VF-3204. Breach of Implied Warranty of Merchantability
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] buy a[n] [consumer good] [manufactured
by/from] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. At the time of purchase, was [name of defendant] in the business
of [selling [consumer goods] to retail buyers] [manufacturing
[consumer goods]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the [consumer good] of the same quality as those generally
acceptable in the trade?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What amount is [name of plaintiff] entitled to receive as restitution
to [him/her/nonbinary pronoun] for the [consumer good]?
$
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
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need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 3210, Breach of Implied Warranty of
Merchantability—Essential Factual Elements. See CACI No. VF-3201 for additional
questions in the event the plaintiff is claiming consequential damages.
Depending on the facts, question 3 can be modified to cover other grounds for
breach of the warranty, as in element 3 of CACI No. 3210. Omit questions 4 if the
plaintiff is not seeking consequential damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-3205. Breach of Implied Warranty of
Merchantability—Affirmative Defense—Disclaimer of Implied
Warranties
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] buy a[n] [consumer good] [manufactured
by/from] [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. At the time of purchase, was [name of defendant] in the business
of [selling [consumer goods] to retail buyers] [manufacturing
[consumer goods]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the [consumer good] of the same quality as those generally
acceptable in the trade?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. At the time of sale, was the [consumer good] sold on an “as is” or
“with all faults” basis?
4. Yes No
4. If your answer to question 4 is no, then answer question 5. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What amount is [name of plaintiff] entitled to receive as restitution
to [him/her/nonbinary pronoun] for the [consumer good]?
$
Signed:
Presiding Juror
Dated:
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After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 3210, Breach of Implied Warranty of
Merchantability—Essential Factual Elements, and CACI No. 3221, Affırmative
Defense—Disclaimer of Implied Warranties. See CACI No. VF-3201 for additional
questions in the event the plaintiff is claiming consequential damages.
Depending on the facts, question 3 can be modified to cover other grounds for
breach of the warranty, as in element 3 of CACI No. 3210.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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VF-3206. Breach of Disclosure Obligations
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [buy/lease] a [motor vehicle] from [name of
defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] know or should [he/she/nonbinary
pronoun/it] have known that the vehicle had been returned to the
manufacturer under [California’s/[name of state]’s] motor vehicle
warranty laws?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Prior to the [sale/leasing], did [name of defendant] fail to disclose
to [name of plaintiff], in clear and simple language, the nature of
the defect experienced by the original [buyer/lessee] of the
vehicle?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s failure to clearly disclose the defect a
substantial factor in causing harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
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SONG-BEVERLY CONSUMER WARRANTY ACT VF-3206
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3206, Breach of Disclosure
Obligations—Essential Factual Elements. See CACI No. VF-3201 for additional
questions in the event the plaintiff is claiming consequential damages.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If defendant is a manufacturer, substitute question 2 with a question modeled after
the first bracketed option in element 2. Depending on the facts, question 4 can be
modified to cover other grounds for breach of the warranty, as in elements 5 and 6
of CACI No. 3206. Make sure that the “yes” and “no” directions match
appropriately.
Omit question 4 if the plaintiff is not seeking consequential damages.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3207–VF-3299. Reserved for Future Use
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Copyright Judicial Council of California
UNFAIR PRACTICES ACT
3300. Locality Discrimination—Essential Factual Elements
3301. Below Cost Sales—Essential Factual Elements
3302. Loss Leader Sales—Essential Factual Elements
3303. Definition of “Cost”
3304. Presumptions Concerning Costs—Manufacturer
3305. Presumptions Concerning Costs—Distributor
3306. Methods of Allocating Costs to an Individual Product
3307–3319. Reserved for Future Use
3320. Secret Rebates—Essential Factual Elements
3321. Secret Rebates—Definition of “Secret”
3322–3329. Reserved for Future Use
3330. Affirmative Defense to Locality Discrimination Claim—Cost Justification
3331. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss
Leader Sales Claims—Closed-out, Discontinued, Damaged, or Perishable
Items
3332. Affirmative Defense to Locality Discrimination, Below Cost Sales, Loss
Leader Sales, and Secret Rebates—Functional Classifications
3333. Affirmative Defense to Locality Discrimination, Below Cost Sales, and Loss
Leader Sales Claims—Meeting Competition
3334. Affirmative Defense to Locality Discrimination Claim—Manufacturer
Meeting Downstream Competition
3335. Affirmative Defense—“Good Faith” Explained
3336–3399. Reserved for Future Use
VF-3300. Locality Discrimination
VF-3301. Locality Discrimination Claim—Affirmative Defense—Cost Justification
VF-3302. Below Cost Sales
VF-3303. Below Cost Sales Claim—Affirmative Defense—Closed-out,
Discontinued, Damaged, or Perishable Items
VF-3304. Loss Leader Sales
VF-3305. Loss Leader Sales Claim—Affirmative Defense—Meeting Competition
VF-3306. Secret Rebates
VF-3307. Secret Rebates Claim—Affirmative Defense—Functional Classifications
VF-3308–VF-3399. Reserved for Future Use
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3300. Locality Discrimination—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] engaged in unlawful
locality discrimination. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] [offered to sell/sold/furnished] [product/
service] at a lower price in one [location/section/community/city]
in California than in another [location/section/community/city] in
California;
2. That [name of defendant] intended to destroy competition from an
established dealer [or to prevent competition from any person
who in good faith intended and attempted to become such a
dealer];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
The word “price” as used here should be read sufficiently broadly to include
“special rebates, collateral contracts, or any device of any nature whereby such
discrimination is in substance or fact effected.” (Bus. & Prof. Code, § 17049.) To
the extent the circumstances of the case warrant it, the word “price” in the
instruction may be supplemented or supplanted by other price-related terms.
Business and Professions Code sections 17071 and 17071.5 create rebuttable
presumptions regarding the purpose or intent to injure competitors or destroy
competition. The Supreme Court has observed: “The obvious and only effect of this
provision is to require the defendants to go forward with such proof as would bring
them within one of the exceptions or which would negative the prima facie showing
of wrongful intent.” (People v. Pay Less Drug Store (1944) 25 Cal.2d 108, 114 [153
P.2d 9].)
Sources and Authority
• “Locality Discrimination” Defined. Business and Professions Code section
17031.
• Locality Discrimination Prohibited. Business and Professions Code section
17040.
• “Article or Product” Defined. Business and Professions Code section 17024.
• Actual Damages or Injury Not Required. Business and Professions Code section
17082.
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UNFAIR PRACTICES ACT CACI No. 3300
• “The purpose of the Unfair Practices Act (UPA) is ‘to safeguard the public
against the creation or perpetuation of monopolies and to foster and encourage
competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent
and discriminatory practices by which fair and honest competition is destroyed
or prevented.’ It forbids most locality discriminations, the use of loss leaders,
gifts, secret rebates, boycotts, and ‘deceptive, untrue or misleading advertising.’
It also prohibits the sale of goods and services below cost.” (Pan Asia Venture
Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 431–432 [88
Cal.Rptr.2d 118], internal citations omitted.)
• “Sections 17031 and 17040 are tailored to address the problem of a distributor,
typically a retailer, selling out of many locations, who might use geographical
price discrimination as a predatory practice against its own competitors.” (ABC
International Traders, Inc. v. Matsushita Electric Corp. of America (1997) 14
Cal.4th 1247, 1266 [61 Cal.Rptr.2d 112, 931 P.2d 290].)
• “As section 17031 is presently worded, we conclude that the smallest geographic
unit it envisages is the individual store or outlet, not the individual purchaser
regardless of location.” (Harris v. Capitol Records Distributing Corp. (1966) 64
Cal.2d 454, 460 [50 Cal.Rptr. 539, 413 P.2d 139].)
• “[T]o fall within [the] prohibition a seller must have at least two different places
of business and must sell at a lower price in one than in the other.” (Harris,
supra, 64 Cal.2d at p. 460.)
• “While, similar to other cases, damages cannot be awarded in antitrust cases
upon sheer guesswork or speculation, the plaintiff seeking damages for loss of
profits is required to establish only with reasonable probability the existence of
some causal connection between defendant’s wrongful act and some loss of the
anticipated revenue. Once that has been accomplished, the jury will be permitted
to act upon probable and inferential proof and to ‘make a just and reasonable
estimate of the damage based on relevant data, and render its verdict
accordingly.’ ” (Suburban Mobile Homes, Inc. v. AMFAC Communities, Inc.
(1980) 101 Cal.App.3d 532, 545 [161 Cal.Rptr. 811], internal citations omitted.)
• The federal law most comparable to the Unfair Practices Act is the Robinson-
Patman Act (15 U.S.C. § 13 et seq.); that act differs substantially from the Unfair
Practices Act, however. For a discussion of this subject, see Turnbull & Turnbull
v. ARA Transportation (1990) 219 Cal.App.3d 811 [268 Cal.Rptr. 856]. One
notable difference is that the Robinson-Patman Act requires at least two actual
sales. Thus, mere offers to sell cannot violate that act.
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.22
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CACI No. 3300 UNFAIR PRACTICES ACT
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.44, 5.46[2], 5.47[1]
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3301. Below Cost Sales—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] engaged in unlawful
sales below cost. To establish this claim, [name of plaintiff] must prove all
of the following:
1. [That [name of defendant] [offered to sell/sold] [product/service] at
a price that was below cost;]
1. [or]
1. [That [name of defendant] gave away [product/service];]
2. That [name of defendant]’s purpose was to injure competitors or
destroy competition;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
If [name of plaintiff] proves that [name of defendant] [[offered to sell/sold]
[product/service] at a price that was below cost/ [or] gave away [product/
service]] and that [name of defendant]’s acts harmed [name of plaintiff],
you may assume that [name of defendant]’s purpose was to injure
competitors or destroy competition. To overcome this presumption, [name
of defendant] must present evidence of a different purpose. [Name of
defendant] has presented evidence that [his/her/nonbinary pronoun/its]
purpose was [specify other purpose]. Considering all of the evidence
presented, you must decide whether [name of plaintiff] proved that [name
of defendant]’s purpose was to injure competitors or destroy competition.
New September 2003; Revised June 2011
Directions for Use
The word “price” as used here should be read sufficiently broadly to include
“special rebates, collateral contracts, or any device of any nature whereby such sale
below cost is in substance or fact effected.” (Bus. & Prof. Code, § 17049.) To the
extent the circumstances of the case warrant it, the word “price” in the instruction
may be supplemented or supplanted by other such price-related terms.
For instructions on “cost,” see CACI No. 3303, Definition of “Cost,” CACI
No. 3304, Presumptions Concerning Costs—Manufacturer, CACI No. 3305,
Presumptions Concerning Costs—Distributor, and CACI No. 3306, Methods of
Allocating Costs to an Individual Product.
Business and Professions Code sections 17071 and 17071.5 create a rebuttable
presumption of the purpose or intent to injure competitors or destroy competition.
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The presumption requires the defendants to go forward with evidence that would
establish an affirmative defense or otherwise rebut the presumption of wrongful
intent. (See People v. Pay Less Drug Store (1944) 25 Cal.2d 108, 114 [153 P.2d 9].)
The plaintiff is entitled to an instruction on the presumption. (See Bay Guardian Co.
v. New Times Media LLC (2010) 187 Cal.App.4th 438, 465 [114 Cal.Rptr.3d 392.)
For possible affirmative defenses, see CACI No. 3331, Affırmative Defense to
Locality Discrimination, Below Cost Sales, and Loss Leader Sales Claims—Closed-
out, Discontinued, Damaged, or Perishable Items, CACI No. 3332, Affırmative
Defense to Locality Discrimination, Below Cost Sales, Loss Leader Sales, and
Secret Rebates—Functional Classifications, and CACI No. 3333, Affırmative
Defense to Locality Discrimination, Below Cost Sales, and Loss Leader Sales
Claims—Meeting Competition.
Sources and Authority
• Below-Cost Sales Prohibited. Business and Professions Code section 17043.
• “Article or Product” Defined. Business and Professions Code section 17024.
• Presumption of Intent to Injure Competitors or Destroy Competition. Business
and Professions Code section 17071.
• Actual Damages or Injury Not Required. Business and Professions Code section
17082.
• “The purpose of the Unfair Practices Act (UPA) is ‘to safeguard the public
against the creation or perpetuation of monopolies and to foster and encourage
competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent
and discriminatory practices by which fair and honest competition is destroyed
or prevented.’ It forbids most locality discriminations, the use of loss leaders,
gifts, secret rebates, boycotts, and ‘deceptive, untrue or misleading advertising.’
It also prohibits the sale of goods and services below cost.” (Pan Asia Venture
Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 431–432 [88
Cal.Rptr.2d 118], internal citations omitted.)
• “Section 17043 uses the word ‘purpose,’ not ‘intent,’ not ‘knowledge.’ We
therefore conclude that to violate section 17043, a company must act with the
purpose, i.e., the desire, of injuring competitors or destroying competition.” (Cel-
Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20
Cal.4th 163, 174–175 [83 Cal.Rptr.2d 548, 973 P.2d 527].)
• “Proof that a defendant sold or distributed articles or products below cost will be
‘presumptive evidence of the purpose or intent to injure competitors or destroy
competition.’ ” (Pan Asia Venture Capital Corp., supra, 74 Cal.App.4th at p.
432, internal citation omitted.)
• “[W]e conclude that the section 17071 presumption is properly categorized as
one that affects the burden of proof rather than merely the burden of persuasion.
‘A presumption affecting the burden of proof shifts the burden of persuasion on
an ultimate fact to the party against whom the presumption operates upon a
finding of the predicate facts.’ ‘A presumption meant to establish or implement
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some public policy other than facilitation of the particular action in which it
applies is a presumption affecting the burden of proof.’ As we view section
17071, the presumption is indicative of an effort by the Legislature to implement
the public policy of facilitating proof of unlawful purpose of below-cost sales
which injure a competitor by shifting the burden of proof to the party more in
possession of relevant evidence demonstrating the true intent associated with the
pricing scheme.” (Bay Guardian Co., supra, 187 Cal.App.4th at p. 464, internal
citations omitted.)
• “ ‘[T]he allocation of evidentiary burdens [under section 17071 is] as follows:
“Assuming proof of injury to a competitor has been made, California law allows
plaintiffs to establish a prima facie case with proof of prices below average total
cost. The defendant then has the burden of negating the inference of illegal
intent or establishing an affirmative defense.” . . . [Citation.]’ The presumption
‘may be rebutted by establishing one of the statute’s affirmative defenses, such
as meeting competition, see Cal.Bus. & Prof.Code § 17050, or by showing that
the sales “were made in good faith and not for the purpose of injuring
competitors or destroying competition.” [Citation.]’ ‘After proof of the sales
below cost and injury resulting therefrom, there is no undue hardship cast upon
the defendants to require them to come forward with evidence of their true intent
as against the prima facie showing, or with evidence which will bring them
within a specified exception in the act.’ Once the presumption is rebutted, ‘the
burden shifts back to the moving party to offer actual proof of injurious intent.’ ”
(Bay Guardian Co., supra, 187 Cal.App.4th at pp. 464–465, internal citations
omitted; but see Haycock v. Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473,
1492 [28 Cal.Rptr.2d 248] [Evid. Code § 606 indicates that a presumption
affecting the burden of proof imposes upon the party against whom it operates
the burden of proof as to the nonexistence of the presumed fact].)
• “The section 17071 presumption, being one that in both nature and consequence
alters the burden of proof, did ‘ “not disappear in the face of evidence as to the
nonexistence of the presumed fact . . . .” [Citations.]’ Therefore, the fact that
defendants denied any purpose to harm competition, and produced some
evidence of good faith efforts to compete in the marketplace, did not negate
plaintiff’s right to an instruction on a presumption affecting the burden of proof
of unlawful purpose. Defendants may have offered rebuttal evidence, but they
did not negate the presumption by conclusive proof that negated unlawful
purpose as a matter of law or compelled a finding on the issue in their favor
based on this record.” (Bay Guardian Co., supra, 187 Cal.App.4th at p. 465,
original italics.)
• “Determination of the defendant’s cost has always been treated as an issue of
fact.” (Pan Asia Venture Capital Corp., supra, 74 Cal.App.4th at p. 432.)
• “While, similar to other cases, damages cannot be awarded in antitrust cases
upon sheer guesswork or speculation, the plaintiff seeking damages for loss of
profits is required to establish only with reasonable probability the existence of
some causal connection between defendant’s wrongful act and some loss of the
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anticipated revenue. Once that has been accomplished, the jury will be permitted
to act upon probable and inferential proof and to ‘make a just and reasonable
estimate of the damage based on relevant data, and render its verdict
accordingly.’ ” (Suburban Mobile Homes, Inc. v. AMFAC Communities, Inc.
(1980) 101 Cal.App.3d 532, 545 [161 Cal.Rptr. 811], internal citations omitted.)
• “Even the objectives of the [federal and state] laws, though certainly similar, are
not identical. The Sherman Act and Robinson-Patman Act (15 U.S.C. § 13(a))
seek to prevent anticompetitive acts that impair competition or harm competitors,
whereas the UPA reflects a broader ‘[l]egislative concern not only with the
maintenance of competition, but with the maintenance of “fair and honest
competition.” [Citations.]’ We disagree with defendants’ characterization of the
UPA as legislation that was merely ‘intended to protect the public, not individual
competitors.’ The UPA has been described by our high court ‘as a legislative
attempt “to regulate business as a whole by prohibiting practices which the
legislature has determined constitute unfair trade practices.” ’ ” (Bay Guardian
Co., supra, 187 Cal.App.4th at p. 457, original italics, internal citations omitted.)
• “In light of the distinctions we discern, some glaring, some subtle, between
section 17043 and the federal or other state predatory pricing laws, and
particularly in light of the conspicuous focus of section 17043 upon the mental
state of defendants’ purpose rather than ultimate impact of below-cost pricing,
we decline to imply a recoupment element in the statute where none has been
expressed.” (Bay Guardian Co., supra, 187 Cal.App.4th at p. 459, internal
citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.22 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.46[3], 5.47[2]
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3302. Loss Leader Sales—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] [offered to sell/sold/
offered the use of] [product/service] as an unlawful loss leader. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [offered to sell/sold/offered the use of]
[product/service] at prices that were below [his/her/nonbinary
pronoun/its] costs;
2. [Insert one or more of the following:]
2. [That [name of defendant]’s purpose was to influence, promote, or
encourage the purchase of other merchandise from
[him/her/nonbinary pronoun/it]; [or]]
2. [That the [offer/sale] had a tendency or capacity to mislead or
deceive purchasers or potential purchasers; [or]]
2. [That the [offer/sale] took business away from or otherwise
injured competitors;]
3. That [name of defendant]’s intent was to injure competitors or
destroy competition;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
The word “price” as used here should be read sufficiently broadly to include
“special rebates, collateral contracts, or any device of any nature whereby such sale
below cost is in substance or fact effected.” (Bus. & Prof. Code, § 17049.) To the
extent the circumstances of the case warrant it, the word “price” in the instruction
may be supplemented or supplanted by other price-related terms.
For instructions on “cost,” see CACI No. 3303, Definition of “Cost”; CACI
No. 3304, Presumptions Concerning Costs—Manufacturer; CACI No. 3305,
Presumptions Concerning Costs—Distributor; and CACI No. 3306, Methods of
Allocating Costs to an Individual Product.
Business and Professions Code sections 17071 and 17071.5 create rebuttable
presumptions regarding the purpose or intent to injure competitors or destroy
competition. The Supreme Court has observed: “The obvious and only effect of this
provision is to require the defendants to go forward with such proof as would bring
them within one of the exceptions or which would negative the prima facie showing
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of wrongful intent.” (People v. Pay Less Drug Store (1944) 25 Cal.2d 108, 114 [153
P.2d 9].)
Sources and Authority
• “Loss Leader” Sales Prohibited. Business and Professions Code section 17044.
• “Loss Leader” Defined. Business and Professions Code section 17030.
• “Article or Product” Defined. Business and Professions Code section 17024.
• Actual Damages or Injury Not Required. Business and Professions Code section
17082.
• “The purpose of the Unfair Practices Act (UPA) is ‘to safeguard the public
against the creation or perpetuation of monopolies and to foster and encourage
competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent
and discriminatory practices by which fair and honest competition is destroyed
or prevented.’ It forbids most locality discriminations, the use of loss leaders,
gifts, secret rebates, boycotts, and ‘deceptive, untrue or misleading advertising.’
It also prohibits the sale of goods and services below cost.” (Pan Asia Venture
Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 431–432 [88
Cal.Rptr.2d 118], internal citations omitted.)
• “[N]otwithstanding the absence of any language to this effect in either section
17044 or section 17030, intent to injure competitors or to destroy competition is
required for violation of section 17044. In other words, for competition to be
unfair under the Act, the person engaging in the challenged practice must
possess an intent to injure his competitors or destroy his competition.” (Dooley’s
Hardware Mart v. Food Giant Markets, Inc. (1971) 21 Cal.App.3d 513, 517 [98
Cal.Rptr. 543].)
• “We conclude that to violate sections 17043 and 17044, part of the Unfair
Practices Act, which prohibit below-cost sales and loss leaders, a company must
act with the purpose, i.e., the desire, of injuring competitors or destroying
competition.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone
Co. (1999) 20 Cal.4th 163, 169 [83 Cal.Rptr.2d 548, 973 P.2d 527].)
• It has been held by one federal district court interpreting California’s loss leader
statute that it applies only to product sales, not giveaways. (Co-Opportunities,
Inc. v. National Broadcasting Co., Inc. (N.D. Cal. 1981) 510 F.Supp. 43, 50.)
• “While, similar to other cases, damages cannot be awarded in antitrust cases
upon sheer guesswork or speculation, the plaintiff seeking damages for loss of
profits is required to establish only with reasonable probability the existence of
some causal connection between defendant’s wrongful act and some loss of the
anticipated revenue. Once that has been accomplished, the jury will be permitted
to act upon probable and inferential proof and to ‘make a just and reasonable
estimate of the damage based on relevant data, and render its verdict
accordingly.’ ” (Suburban Mobile Homes, Inc. v. AMFAC Communities, Inc.
(1980) 101 Cal.App.3d 532, 545 [161 Cal.Rptr. 811], internal citations omitted.)
• The federal law most comparable to the Unfair Practices Act is the Robinson-
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Patman Act (15 U.S.C. § 13 et seq.); that act differs substantially from the Unfair
Practices Act, however. For a discussion of this subject, see Turnbull & Turnbull
v. ARA Transportation (1990) 219 Cal.App.3d 811 [268 Cal.Rptr. 856]. One
notable difference is that the Robinson-Patman Act requires at least two actual
sales. Thus, mere offers to sell cannot violate that act.
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 628
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.22 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.46[4], 5.47[3]
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3303. Definition of “Cost”
The term “cost” means all costs of doing business, including fixed costs
that do not tend to change with sales, such as heat and light, as well as
variable costs that do tend to change with sales, such as sales
commissions.
Costs of doing business may include the following:
1. Labor, including salaries of executives and officers;
2. Rent and utilities;
3. Interest on loans;
4. Depreciation;
5. Selling cost;
6. Maintenance of equipment;
7. Delivery costs;
8. Credit losses;
9. Advertising costs;
10. Licenses, taxes; [and]
11. Insurance; [and]
12. [Insert other cost(s).]
[The term “cost” as applied to warranty service agreements also includes
the cost of parts and delivery of the parts.]
[The term “cost” as applied to distribution also includes either the
invoice cost or replacement cost of the product, whichever is lower.]
[The term “cost” as applied to services also includes the prevailing wage
at the time and place these services were provided if [name of defendant]
was paying less than the prevailing wage.]
Any discounts given for cash payments may not be used to lower costs.
New September 2003
Directions for Use
The bracketed paragraphs should be inserted as appropriate to the facts.
In cases involving the sale of cellular telephones and cigarettes, Business and
Professions Code sections 17026.1 and 17026.5 measure “cost” somewhat
differently.
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Sources and Authority
• “Cost” Defined. Business and Professions Code section 17026.
• “Cost of Doing Business” or “Overhead” Defined. Business and Professions
Code section 17029.
• Prevailing Wage Used to Determine Cost. Business and Professions Code section
17076.
• “Determination of the defendant’s cost has always been treated as an issue of
fact.” (Pan Asia Venture Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th
424, 433 [88 Cal.Rptr.2d 118].)
• “These statutes embody California’s fully allocated cost standard, that is, a fair
allocation of all fixed or variable costs associated with production of the article
or product.” (Pan Asia Venture Capital Corp., supra, 74 Cal.App.4th at p. 432,
footnote omitted.)
• “Cost is to be measured as ‘the fair average cost of production over a reasonable
time, rather than the cost of one item on a particular occasion.’ ” (Pan Asia
Venture Capital Corp., supra, 74 Cal.App.4th at p. 432, fn. 6, internal citation
omitted.)
• “Variable costs are costs that vary with changes in output, while fixed costs are
those that do not vary with changes in output.” (Turnbull & Turnbull v. ARA
Transportation Inc. (1990) 219 Cal.App.3d 811, 820 [268 Cal.Rptr. 856].)
• “California employs a fully allocated cost standard to determine whether a sale
has violated section 17043. Under sections 17026 and 17029 . . . cost means
invoice cost plus the vendor’s full cost of doing business or six percent.”
(G.H.I.I. v. Mts, Inc. (1983) 147 Cal.App.3d 256, 275 [195 Cal.Rptr. 211],
internal citations omitted.)
• “We find the use of the fully allocated cost method, when viewed in conjunction
with the injurious intent requirement of section 17043, is rationally related to the
valid legislative purpose . . . as it assists in preventing the creation or
perpetuation of monopolies.” (Turnbull & Turnbull, supra, 219 Cal.App.3d at p.
822.)
• “To be legally acceptable, the allocation of indirect or fixed overhead costs to a
particular product or service must be reasonably related to the burden such
product or service imposes on the overall cost of doing business.” (Turnbull &
Turnbull, supra, 219 Cal.App.3d at p. 822.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.22 et seq.
(Matthew Bender)
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3304. Presumptions Concerning Costs—Manufacturer
A manufacturer’s costs include the cost of raw materials and the cost of
manufacturing.
The cost of manufacturing is the average cost of manufacture over a
reasonable time, rather than the cost of one item at a particular time.
[If [name of defendant]’s cost for raw materials cannot be computed, the
cost is presumed to be the prevailing price for similar raw materials at
the time and place those materials would usually be purchased.]
[If [name of defendant]’s trade or industry has an established cost study
or survey for the geographic area in this case, that cost survey may be
considered in calculating [name of defendant]’s costs.]
[[Name of defendant]’s delivery costs are presumed to be the tariffs set by
the California Public Utilities Commission, but this presumption may be
overcome by other evidence.]
New September 2003
Directions for Use
The bracketed sentences should be inserted as necessary.
Sources and Authority
• “Cost” Defined. Business and Professions Code section 17026.
• Cost Survey Is Competent Evidence. Business and Professions Code section
17072.
• Presumptive Evidence of Cost. Business and Professions Code section 17073.
• Transportation Tariffs Are Presumptive Evidence of Delivery Costs. Business and
Professions Code section 17074.
• Prevailing Market Price Is Presumptive Evidence of Cost of Raw Materials.
Business and Professions Code section 17077.
• “Determination of the defendant’s cost has always been treated as an issue of
fact.” (Pan Asia Venture Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th
424, 432 [88 Cal.Rptr.2d 118].)
• “California appears to have adopted a very expansive approach to the evidence
that may be used to establish cost; no formula has been expressly sustained or
denounced.” (Pan Asia Venture Capital Corp., supra, 74 Cal.App.4th at p. 436.)
• “These statutes embody California’s fully allocated cost standard, that is, a fair
allocation of all fixed or variable costs associated with production of the article
or product.” (Pan Asia Venture Capital Corp., supra, 74 Cal.App.4th at p. 432,
footnote omitted.)
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• “Cost is to be measured as ‘the fair average cost of production over a reasonable
time, rather than the cost of one item on a particular occasion.’ ” (Pan Asia
Venture Capital Corp., supra, 74 Cal.App.4th at p. 432, fn. 6, internal citation
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.22 et seq.
(Matthew Bender)
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3305. Presumptions Concerning Costs—Distributor
A distributor’s costs include the cost of the product being distributed
and the cost of doing business as a distributor.
The cost of the product being distributed is the amount [name of
defendant] paid for the product or [his/her/nonbinary pronoun/its] cost of
replacing the product, whichever is less.
[Name of defendant]’s cost of doing business as a distributor is the
average cost of distribution over a reasonable time, rather than the cost
of distributing one item at a particular time.
[If [name of defendant]’s trade or industry has an established cost study
or survey for the geographic area in this case, that cost survey may be
considered in calculating [name of defendant]’s costs.]
[If there is no other proof of the cost of doing business, a markup of six
percent on the invoice or replacement cost of an article or product is
presumed to be [name of defendant]’s additional cost of doing business.]
[[Name of defendant]’s delivery costs are presumed to be the tariffs set by
the California Public Utilities Commission, but this presumption may be
overcome by other evidence.]
New September 2003
Directions for Use
Presumably, this instruction would also apply to sellers that are denominated
“retailers.”
The bracketed sentences should be inserted as necessary.
There is an additional presumption regarding costs in Business and Professions
Code section 17026 for warranty service providers: “ ‘Cost’ as applied to warranty
service agreements includes the cost of parts, transporting the parts, labor, and all
overhead expenses of the service agency.”
Sources and Authority
• Cost of Distribution. Business and Professions Code section 17026.
• Cost Survey Is Evidence of Cost. Business and Professions Code section 17072.
• Presumptive Evidence of Distribution Costs. Business and Professions Code
section 17073.
• Transportation Tariffs Presumptive Evidence of Delivery Costs. Business and
Professions Code section 17074.
• “Determination of the defendant’s cost has always been treated as an issue of
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fact.” (Pan Asia Venture Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th
424, 432 [88 Cal.Rptr.2d 118].)
• “California appears to have adopted a very expansive approach to the evidence
that may be used to establish cost; no formula has been expressly sustained or
denounced.” (Pan Asia Venture Capital Corp., supra, 74 Cal.App.4th at p. 436.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.22
(Matthew Bender)
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3306. Methods of Allocating Costs to an Individual Product
Although no formula for determining the appropriate cost of a
particular [product/service] is set by law, [insert one of the following:]
[the determination of the appropriate cost of [manufacture/distribution]
of a particular product must be reasonably related to the burden the
product puts on [name of defendant]’s overall cost of doing business.]
[the determination of the cost of providing particular services must be
reasonably related to the burden the service puts on [name of defendant]’s
overall cost of doing business.]
New September 2003
Directions for Use
Regarding the first bracketed sentence, if all of the defendant’s products are
approximately the same, there is no need to allocate the indirect expense, i.e.,
overhead, according to the unique “burden” each product generates. In such cases,
this paragraph could unnecessarily confuse the jury and should be modified or
deleted.
Sources and Authority
• “Determination of the defendant’s cost has always been treated as an issue of
fact.” (Pan Asia Venture Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th
424, 432 [88 Cal.Rptr.2d 118].)
• “These statutes embody California’s fully allocated cost standard, that is, a fair
allocation of all fixed or variable costs associated with production of the article
or product.” (Pan Asia Venture Capital Corp., supra, 74 Cal.App.4th at p. 432,
footnote omitted.)
• “Cost is to be measured as ‘the fair average cost of production over a reasonable
time, rather than the cost of one item on a particular occasion.’ ” (Pan Asia
Venture Capital Corp., supra, 74 Cal.App.4th at p. 432, fn. 6, internal citation
omitted.)
• “Variable costs are costs that vary with changes in output, while fixed costs are
those that do not vary with changes in output.” (Turnbull & Turnbull v. ARA
Transportation Inc. (1990) 219 Cal.App.3d 811, 820 [268 Cal.Rptr. 856].)
• “California employs a fully allocated cost standard to determine whether a sale
has violated section 17043. Under sections 17026 and 17029 . . . cost means
invoice cost plus the vendor’s full cost of doing business or six percent.”
(G.H.I.I. v. Mts, Inc. (1983) 147 Cal.App.3d 256, 275 [195 Cal.Rptr. 211],
internal citations omitted.)
• “We find the use of the fully allocated cost method, when viewed in conjunction
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with the injurious intent requirement of section 17043, is rationally related to the
valid legislative purpose . . . as it assists in preventing the creation or
perpetuation of monopolies.” (Turnbull & Turnbull, supra, 219 Cal.App.3d at p.
822.)
• “To be legally acceptable, the allocation of indirect or fixed overhead costs to a
particular product or service must be reasonably related to the burden such
product or service imposes on the overall cost of doing business.” (Turnbull &
Turnbull, supra, 219 Cal.App.3d at p. 822.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition
(Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition (Matthew Bender)
3307–3319. Reserved for Future Use
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3320. Secret Rebates—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] [insert one or both of the
following:]
[secretly [gave/received] [payments/rebates/refunds/ commissions/
unearned discounts;]] [or] [secretly [gave to some buyers/received]
services or privileges that were not given to other buyers purchasing
on like terms and conditions.]
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] secretly [[gave/received]
[payments/rebates/refunds/commissions/unearned discounts]] [or]
[[gave to some buyers/received] services or privileges that were
not given to other buyers purchasing on like terms and
conditions];
2. That a competitor was harmed;
3. That the [payment/allowance] had a tendency to destroy
competition;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
Element 2 should be omitted if the plaintiff is a competitor of the defendant; that
issue is covered by element 4.
Sources and Authority
• Secret Rebates Prohibited. Business and Professions Code § 17045.
• Actual Damages or Injury Not Required. Business and Professions Code section
17082.
• “The purpose of the Unfair Practices Act (UPA) is ‘to safeguard the public
against the creation or perpetuation of monopolies and to foster and encourage
competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent
and discriminatory practices by which fair and honest competition is destroyed
or prevented.’ It forbids most locality discriminations, the use of loss leaders,
gifts, secret rebates, boycotts, and ‘deceptive, untrue or misleading advertising.’
It also prohibits the sale of goods and services below cost.” (Pan Asia Venture
Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 431–432 [88
Cal.Rptr.2d 118], internal citations omitted.)
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• “[T]here are three elements to a violation of section 17045. First, there must be
a ‘secret’ allowance of an ‘unearned’ discount. Second, there must be ‘injury’ to
a competitor. Third, the allowance must tend to destroy competition.” (Diesel
Elec. Sales & Serv., Inc. v. Marco Marine San Diego (1993) 16 Cal.App.4th 202,
212 [20 Cal.Rptr.2d 62].)
• “By its terms, section 17045 requires the plaintiff to prove not only injury to a
competitor, but, in addition, a tendency ‘to destroy competition.’ ” (ABC
International Traders, Inc. v. Matsushita Electric Corp. of America (1997) 14
Cal.4th 1247, 1262 [61 Cal.Rptr.2d 112, 931 P.2d 290], original italics.)
• “[P]roof of a knowing or intentional receipt by a buyer of a secret, unearned
discount is not required under section 17045.” (Diesel Elec. Sales & Serv., Inc.,
supra, 16 Cal.App.4th at p. 214, fn. 4.)
• “[S]ection 17045 does not require a proof of an ‘intent’ to destroy competition,
but only that the secret, unearned discount had a tendency to destroy
competition.” (Diesel Elec. Sales & Serv., Inc., supra, 16 Cal.App.4th at p. 215,
original italics.)
• Those competing against a seller who provides the secret rebate, on the “primary
line,” have standing to sue under the statute. Likewise, a customer of the seller
who is disfavored by that seller providing a secret rebate to competitors of that
customer, creating so-called “secondary line” injury, also has standing to sue.
(ABC International Traders, supra, 14 Cal.4th at p. 1257.)
• “While, similar to other cases, damages cannot be awarded in antitrust cases
upon sheer guesswork or speculation, the plaintiff seeking damages for loss of
profits is required to establish only with reasonable probability the existence of
some causal connection between defendant’s wrongful act and some loss of the
anticipated revenue. Once that has been accomplished, the jury will be permitted
to act upon probable and inferential proof and to ‘make a just and reasonable
estimate of the damage based on relevant data, and render its verdict
accordingly.’ ” (Suburban Mobile Homes, Inc. v. AMFAC Communities, Inc.
(1980) 101 Cal.App.3d 532, 545 [161 Cal.Rptr. 811], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.29
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.46[5], 5.47[4]
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3321. Secret Rebates—Definition of “Secret”
[Rebates/Refunds/Commissions/Unearned discounts/Services or
privileges] are “secret” if they are concealed from or not disclosed to
other buyers.
New September 2003
Sources and Authority
• “Viewing the evidence most favorably to [plaintiff], the nondisclosure of
[defendant]’s receipt of maximum discounts to which it was not entitled certainly
could be construed as a ‘secret’ allowance.” (Diesel Elec. Sales & Serv., Inc. v.
Marco Marine San Diego (1993) 16 Cal.App.4th 202, 212 [20 Cal.Rptr.2d 62].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52[4] (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.29
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.46[5], 5.47[4]
3322–3329. Reserved for Future Use
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3330. Affirmative Defense to Locality Discrimination Claim—Cost
Justification
[Name of defendant] claims that any locality discrimination proven by
[name of plaintiff] is within the law. To succeed, [name of defendant] must
prove that the difference in [his/her/nonbinary pronoun/its] price is
justified by: [insert one or more of the following:]
[A difference in the [grade/quality/quantity] of the [product] [he/she/
nonbinary pronoun/it] sold in the different locations;] [or]
[The difference in the cost of the [manufacture/sale/delivery] of [his/
her/nonbinary pronoun/its] [product] in the different locations;] [or]
[A difference in the actual cost of transportation from the place the
[product] was [produced/manufactured/shipped] to the place where
the [product] was sold.]
New September 2003
Directions for Use
This defense applies to locality discrimination only.
Sources and Authority
• Costs Justification for Locality Discrimination. Business and Professions Code
section 17041.
• “We . . . conclude that appellants are not required to negative the exception for
differences in grade or other enumerated factors found in section 17041, and
deem the complaint sufficient to withstand demurrer without such allegations.”
(G.H.I.I. v. Mts, Inc. (1983) 147 Cal.App.3d 256, 273 [195 Cal.Rptr. 211],
internal citations and footnote omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.53 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.20
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.46[2], 5.100[2]
527
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3331. Affirmative Defense to Locality Discrimination, Below Cost
Sales, and Loss Leader Sales Claims—Closed-out, Discontinued,
Damaged, or Perishable Items
[Name of defendant] claims that any [locality discrimination/below cost
sales/loss leader sales] proven by [name of plaintiff] [is/are] within the law
because the [product] was being sold as [a close-out/seasonal
goods/damaged goods/perishable goods]. To succeed, [name of defendant]
must prove both of the following:
1. That [his/her/nonbinary pronoun/its] sales were [insert one or more
of the following:]
1. [in the course of closing out, in good faith, all or any part of [his/
her/nonbinary pronoun/its] supply of [product], in order to stop
trade in [product];] [or]
1. [of seasonal goods to prevent loss by depreciation;] [or]
1. [of perishable goods to prevent loss by spoilage or depreciation;]
[or]
1. [of goods that were damaged or deteriorated in quality;] and
2. That [name of defendant] gave sufficient notice of the sale to the
public.
Notice is sufficient only if:
1. The sale goods are kept separate from other goods;
2. The sale goods are clearly marked with the reason[s] for the
sales; and
3. Any advertisement of such goods sets forth the reason[s] for the
sale and indicates the number of items to be sold.
New September 2003
Directions for Use
This defense applies to locality discrimination, below cost sales, and loss leader
sales only.
Sources and Authority
• Exceptions for Close-out, Discontinued, Damaged, or Perishable Items. Business
and Professions Code section 17050.
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
528
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UNFAIR PRACTICES ACT CACI No. 3331
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.53 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.20
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.100[3]
529
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3332. Affirmative Defense to Locality Discrimination, Below Cost
Sales, Loss Leader Sales, and Secret Rebates—Functional
Classifications
[Name of defendant] claims that any [locality discrimination/below cost
sales/loss leader sales/secret rebates] proven by [name of plaintiff] [is/are]
within the law because they apply to different classes of customers. To
succeed, [name of defendant] must prove all of the following:
1. That [name of defendant] created different classes of customers,
such as [broker/jobber/wholesaler/retailer/[insert other]];
2. That customers in the different classes performed different
functions and assumed the risk, investment, and costs involved;
3. That the difference in [price/rebate/discount/special
services/privileges] for [product/service] was given only in those
sales where the favored buyer performed the function on which
the claim of a different class is based; and
4. That the difference in price was reasonably related to the value of
such function.
New September 2003
Directions for Use
This defense applies to locality discrimination, sales below cost, loss leader sales,
and secret rebates.
Sources and Authority
• Functional Classifications. Business and Professions Code section 17042.
• “ ‘[T]he law should tolerate no subterfuge. For instance, where a wholesaler-
retailer buys only part of his goods as a wholesaler, he must not claim a
functional discount on all. Only to the extent that a buyer actually performs
certain functions, assuming all the risk, investment, and costs involved, should
he legally qualify for a functional discount. Hence a distributor should be
eligible for a discount corresponding to any part of the function he actually
performs on that part of the goods for which he performs it.’ ” (Diesel Elec.
Sales & Serv., Inc. v. Marco Marine San Diego (1993) 16 Cal.App.4th 202, 217
[20 Cal.Rptr.2d 62], internal citations omitted.)
• “[A] pricing structure in which a distributor sells to a retailer at one discount
and to a rack-jobber at another is expressly permitted by section 17042.” (Harris
v. Capitol Records Distributing Corp. (1966) 64 Cal.2d 454, 463 [50 Cal.Rptr.
539, 413 P.2d 139], footnote omitted.)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.53 (Matthew Bender)
23 California Points and Authorities, Ch. 235, Unfair Competition, § 235.20
(Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.100[4]
531
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3333. Affirmative Defense to Locality Discrimination, Below Cost
Sales, and Loss Leader Sales Claims—Meeting Competition
[Name of defendant] claims that any [locality discrimination/below cost
sales/loss leader sales] proven by [name of plaintiff] [is/are] justified by
the need to meet competition. To succeed, [name of defendant] must prove
that the sales of [product/service] were made in an attempt, in good faith,
to meet the legal prices of a competitor selling the same [product/service]
in the ordinary course of business in the same area.
To meet legal prices means to lower the price to a point that the seller
believes in good faith is at or above the legal price of the competitor it is
trying to meet. That is, a seller may attempt to “meet,” but not “beat,”
what in good faith it believes to be that competitor’s legal price.
New September 2003
Directions for Use
This defense applies to locality discrimination, sales below cost, and loss leader
sales only.
Sources and Authority
• Good-Faith Price to Meet Competition Permitted. Business and Professions Code
section 17050(d).
• “It is safe to assume that merchants generally know who are their competitors,
and from what locality or trade area they draw their customers.” (People v. Pay
Less Drug Store (1944) 25 Cal.2d 108, 116 [153 P.2d 9].)
• “The requirement [to ascertain the ‘legal prices’ of competitors] is not absolute.
It is merely that the defendants shall have endeavored ‘in good faith’ to meet the
legal prices of a competitor.” (Pay Less Drug Store, supra, 25 Cal.2d at p. 117.)
• “The operator of a service industry cannot legally reduce its prices to a below-
cost figure with intent to injure another or offer free service to prevent further
loss of business to a competitor ‘who is indiscriminately and deliberately
offering free service and below cost prices to such operator’s customers.’ Each
side must obey the law; the fact that one competing party disregards the statute
does not give the other side a legal excuse to do so.” (G.B. Page v. Bakersfield
Uniform & Towel Supply Co. (1966) 239 Cal.App.2d 762, 770 [49 Cal.Rptr.
46].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
532
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UNFAIR PRACTICES ACT CACI No. 3333
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.53 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.100[5]
533
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3334. Affirmative Defense to Locality Discrimination
Claim—Manufacturer Meeting Downstream Competition
[Name of defendant] claims that any locality discrimination proven by
[name of plaintiff] was justified by the need to meet competition. To
succeed, [name of defendant] must prove that [his/her/nonbinary pronoun/
its] sales of [product/service] to [name of reselling customer] were made in
an attempt, in good faith, to meet the legal prices of [name of competitor’s
reseller] selling in the ordinary course of business in the same locality or
trade area.
To meet legal prices means to lower the price to a point that the seller
believes in good faith is at or above the legal price of the competitor of
the reseller whose price it is trying to meet. That is, a seller may attempt
to “meet,” but not “beat,” what in good faith it believes to be that
competitor’s legal price.
New September 2003
Directions for Use
This defense applies to locality discrimination when the manufacturer is providing a
lower price to its reseller, so that the reseller can compete fairly against the lower
prices charged by the reseller of another manufacturer.
Sources and Authority
• Manufacturer’s Good-Faith Price to Meet Downstream Competition Permitted.
Business and Professions Code section 17050(e).
• “The requirement [to ascertain the ‘legal prices’ of competitors] is not absolute.
It is merely that the defendants shall have endeavored ‘in good faith’ to meet the
legal prices of a competitor.” (People v. Pay Less Drug Store (1944) 25 Cal.2d
108, 117 [153 P.2d 9].)
• “The operator of a service industry cannot legally reduce its prices to a below-
cost figure with intent to injure another or offer free service to prevent further
loss of business to a competitor ‘who is indiscriminately and deliberately
offering free service and below cost prices to such operator’s customers.’ Each
side must obey the law; the fact that one competing party disregards the statute
does not give the other side a legal excuse to do so.” (G.B. Page v. Bakersfield
Uniform & Towel Supply Co. (1966) 239 Cal.App.2d 762, 770 [49 Cal.Rptr.
46].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
534
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UNFAIR PRACTICES ACT CACI No. 3334
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.53 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.100[6]
535
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3335. Affirmative Defense—“Good Faith” Explained
In deciding whether [name of defendant] acted in good faith in attempting
to meet competition, you must decide whether [his/her/nonbinary
pronoun/its] belief was based on facts that would lead a reasonable
person to believe that the price [name of defendant] was offering would
meet the legal price of [name of defendant]’s competitor. You must
consider all of the facts and circumstances present, including, but not
limited to:
1. The nature and source of the information on which [name of
defendant] relied;
2. [Name of defendant]’s prior experience, if any, with similar
information or with persons who provided the information;
3. [Name of defendant]’s prior pricing practices; and
4. [Name of defendant]’s general business practices.
[Name of defendant] does not have to prove that [his/her/nonbinary
pronoun/its] price did actually meet the legal price of its competitor; only
that [he/she/nonbinary pronoun/it] reasonably believed that
[he/she/nonbinary pronoun/it] was offering a price that would meet the
competitor’s price.
New September 2003; Revised May 2020
Directions for Use
This instruction provides the jury with a general listing of circumstances against
which it might consider evidence in the record to decide whether a defendant’s
attempts to meet competition were in good faith. The final paragraph eases the
defendant’s burden of proof with respect to the “meet but don’t beat” element
because a defendant is required only to prove its reasonable belief that its prices
would meet, but not beat, a competitor’s prices.
Sources and Authority
• Good-Faith Price to Meet Competition Permitted. Business and Professions Code
section 17050(d), (e).
• “The requirement [to ascertain the ‘legal prices’ of competitors] is not absolute.
It is merely that the defendants shall have endeavored ‘in good faith’ to meet the
legal prices of a competitor.” (People v. Pay Less Drug Store (1944) 25 Cal.2d
108, 117 [153 P.2d 9].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 623–629
536
Copyright Judicial Council of California
UNFAIR PRACTICES ACT CACI No. 3335
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.153 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.53 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.46[2], 5.51, 5.100[7]
3336–3399. Reserved for Future Use
537
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VF-3300. Locality Discrimination
We answer the questions submitted to us as follows:
1. Did [name of defendant] [offer to sell/sell/furnish] [product/service]
at a lower price in one [location/section/community/city] in
California than in another [location/section/ community/city] in
California?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] intend to destroy competition from an
established dealer [or to prevent competition from any person
who in good faith intended and attempted to become such a
dealer]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
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UNFAIR PRACTICES ACT VF-3300
Directions for Use
This verdict form is based on CACI No. 3300, Locality Discrimination—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
539
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VF-3301. Locality Discrimination Claim—Affirmative
Defense—Cost Justification
We answer the questions submitted to us as follows:
1. Did [name of defendant] [offer to sell/sell/furnish] [product/service]
at a lower price in one [location/section/community/city] in
California than in another [location/section/ community/city] in
California?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the locality discrimination within the law?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] intend to destroy competition from an
established dealer [or to prevent competition from any person
who in good faith intended and attempted to become such a
dealer]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
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UNFAIR PRACTICES ACT VF-3301
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3300, Locality Discrimination—Essential
Factual Elements, and CACI No. 3330, Affırmative Defense to Locality
Discrimination Claim—Cost Justification.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If other affirmative defenses are asserted, this form can be modified accordingly. See
other Unfair Practices Act verdict forms for examples.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
541
Copyright Judicial Council of California
VF-3302. Below Cost Sales
We answer the questions submitted to us as follows:
1. Did [name of defendant] [offer to sell/sell] [product/service] at a
price that was below cost?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s purpose to injure competitors or
destroy competition?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3301, Below Cost Sales—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
542
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UNFAIR PRACTICES ACT VF-3302
If the facts involve a gift rather than a sale, question 1 can be modified according to
the second alternative in element 1 of CACI No. 3301.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
543
Copyright Judicial Council of California
VF-3303. Below Cost Sales Claim—Affirmative Defense—Closed-
out, Discontinued, Damaged, or Perishable Items
We answer the questions submitted to us as follows:
1. Did [name of defendant] [offer to sell/sell] [product/service] at a
price that was below cost?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Were [his/her/nonbinary pronoun/its] sales in the course of closing
out, in good faith, all or any part of [his/her/nonbinary pronoun/
its] supply of [product], in order to stop trade in [product]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, skip question 3 and answer question 4.
3. Did [name of defendant] give sufficient notice of the sale to the
public?
3. Yes No
3. If your answer to question 3 is no, then answer question 4. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s purpose to injure competitors or
destroy competition?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages? $
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UNFAIR PRACTICES ACT VF-3303
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3301, Below Cost Sales—Essential Factual
Elements, and CACI No. 3331, Affırmative Defense to Locality Discrimination,
Below Cost Sales, and Loss Leader Sales Claims—Closed-out, Discontinued,
Damaged, or Perishable Items.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If other grounds for this defense are asserted, question 2 should be modified
according to question 2 in CACI No. 3331. If other affirmative defenses are
asserted, this form can be modified accordingly. See other Unfair Practices Act
verdict forms for examples.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
545
Copyright Judicial Council of California
VF-3304. Loss Leader Sales
We answer the questions submitted to us as follows:
1. Did [name of defendant] [offer to sell/sell/offer the use of] [product/
service] at prices that were below [his/her/nonbinary pronoun/its]
costs?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s purpose to influence, promote, or
encourage the purchase of other merchandise from [name of
defendant]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s intent to injure competitors or destroy
competition?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
546
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UNFAIR PRACTICES ACT VF-3304
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3302, Loss Leader Sales—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If other grounds of liability are asserted, question 2 can be modified according to
the bracketed alternatives in element 2 of CACI No. 3302.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
547
Copyright Judicial Council of California
VF-3305. Loss Leader Sales Claim—Affirmative Defense—Meeting
Competition
We answer the questions submitted to us as follows:
1. Did [name of defendant] [offer to sell/sell/offer the use of] [product/
service] at prices that were below [his/her/nonbinary pronoun/its]
costs?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Were the sales of [product/service] made in an attempt, in good
faith, to meet the legal prices of a competitor selling the same
[product/service] in the ordinary course of business in the same
area?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s purpose to influence, promote, or
encourage the purchase of other merchandise from [name of
defendant]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s intent to injure competitors or destroy
competition?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
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UNFAIR PRACTICES ACT VF-3305
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3302, Loss Leader Sales—Essential
Factual Elements, and CACI No. 3333, Affırmative Defense to Locality
Discrimination, Below Cost Sales, and Loss Leader Sales Claims—Meeting
Competition.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If other grounds of liability are asserted, question 3 can be modified according to
the alternative brackets in element 2 of CACI No. 3302. If other affirmative
defenses are asserted, this form can be modified accordingly. See other Unfair
Practices Act verdict forms for examples.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3306. Secret Rebates
We answer the questions submitted to us as follows:
1. Did [name of defendant] secretly [[give/receive] [payments/rebates/
refunds/commissions/unearned discounts]] [or] [[give to some
buyers/receive] services or privileges that were not given to other
buyers purchasing on like terms and conditions]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was a competitor harmed?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the [payment/allowance] have a tendency to destroy
competition?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
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verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3320, Secret Rebates—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 2 should be omitted if the plaintiff is a competitor of the defendant,
because that issue is covered by question 4.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3307. Secret Rebates Claim—Affirmative Defense—Functional
Classifications
We answer the questions submitted to us as follows:
1. Did [name of defendant] secretly [[give/receive] [payments/rebates/
refunds/commissions/unearned discounts]/ [or] [give to some
buyers/receive] services or privileges that were not given to other
buyers purchasing on like terms and conditions]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] create different classes of customers, such
as [broker/jobber/wholesaler/retailer/[insert other]]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, skip questions 3, 4, and 5 and answer question 6.
3. Did customers in the different classes perform different functions
and assume the risk, investment, and costs involved?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, skip questions 4 and 5 and answer question 6.
4. Was the difference in [price/rebate/discount/special
services/privileges] for [product/service] given only in those sales
where the favored buyer performed the function on which the
claim of a different class is based?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, skip question 5 and answer question 6.
5. Was the difference in price reasonably related to the value of
such function?
5. Yes No
5. If your answer to question 5 is no, then answer question 6. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was a competitor harmed?
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6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Did the [payment/allowance] have a tendency to destroy
competition?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3320, Secret Rebates—Essential Factual
Elements, and CACI No. 3332, Affırmative Defense to Locality Discrimination,
Below Cost Sales, Loss Leader Sales, and Secret Rebates—Functional
Classifications.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 6 should be omitted if the plaintiff is a competitor of the defendant,
because that issue is covered by question 8.
If other affirmative defenses are asserted, this form can be modified accordingly. See
other Unfair Practices Act verdict forms for examples.
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VF-3307 UNFAIR PRACTICES ACT
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3308–VF-3399. Reserved for Future Use
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CARTWRIGHT ACT
3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price
Fixing—Essential Factual Elements
3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade or
Commerce—Essential Factual Elements
3402. Horizontal Restraints—Dual Distributor Restraints—Essential Factual
Elements
3403. Horizontal Restraints (Use for Direct Competitors)—Group Boycott—Per Se
Violation—Essential Factual Elements
3404. Horizontal Restraints—Group Boycott—Rule of Reason—Essential Factual
Elements
3405. Horizontal and Vertical Restraints (Use for Direct Competitors or Supplier/
Reseller Relations)—Other Unreasonable Restraint of Trade—Rule of
Reason—Essential Factual Elements
3406. Horizontal and Vertical Restraints—“Agreement” Explained
3407. Horizontal and Vertical Restraints—Agreement Between Company and Its
Employee
3408. Vertical Restraints—“Coercion” Explained
3409. Vertical Restraints—Termination of Reseller
3410. Vertical Restraints—Agreement Between Seller and Reseller’s Competitor
3411. Rule of Reason—Anticompetitive Versus Beneficial Effects
3412. Rule of Reason—“Market Power” Explained
3413. Rule of Reason—“Product Market” Explained
3414. Rule of Reason—“Geographic Market” Explained
3415–3419. Reserved for Future Use
3420. Tying—Real Estate, Products, or Services—Essential Factual Elements (Bus.
& Prof. Code, § 16720)
3421. Tying—Products or Services—Essential Factual Elements (Bus. & Prof.
Code, § 16727)
3422. Tying—“Separate Products” Explained
3423. Tying—“Economic Power” Explained
3424–3429. Reserved for Future Use
3430. “Noerr-Pennington” Doctrine
3431. Affirmative Defense—In Pari Delicto
3432–3439. Reserved for Future Use
3440. Damages
3441–3499. Reserved for Future Use
VF-3400. Horizontal and Vertical Restraints (Use for Direct Competitors)—Price
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Fixing
VF-3401. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade
or Commerce
VF-3402. Horizontal Restraints (Use for Direct Competitors)—Allocation of Trade
or Commerce—Affirmative Defense—In Pari Delicto
VF-3403. Horizontal Restraints—Dual Distributor Restraints
VF-3404. Horizontal Restraints (Use for Direct Competitors)—Group
Boycott—Per Se Violation
VF-3405. Horizontal Restraints—Group Boycott—Rule of Reason
VF-3406. Horizontal and Vertical Restraints (Use for Direct Competitors or
Supplier/Reseller Relations)—Other Unreasonable Restraint of
Trade—Rule of Reason
VF-3407. Horizontal and Vertical Restraints (Use for Direct Competitors or
Supplier/Reseller Relations)—Other Unreasonable Restraint of
Trade—Rule of Reason Affirmative Defense—“Noerr-Pennington”
Doctrine
VF-3408. Tying—Real Estate, Products, or Services (Bus. & Prof. Code, § 16720)
VF-3409. Tying—Products or Services (Bus. & Prof. Code, § 16727)
VF-3410–VF-3499. Reserved for Future Use
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3400. Horizontal and Vertical Restraints (Use for Direct
Competitors)—Price Fixing—Essential Factual Elements
[Name of plaintiff] claims [name of defendant] was involved in price fixing.
Price fixing is an agreement to set, raise, lower, maintain, or stabilize the
prices or other terms of trade charged or to be charged for a product or
service, whether the prices agreed on were high or low, reasonable or
unreasonable. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] [and [name(s) of alleged coparticipant(s)]]
agreed to fix [or] [set/raise/lower/maintain/stabilize] prices [or
other terms of trade] charged or to be charged for
[product/service];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction is intended to apply to both actual and potential competitors. For
cases involving vertical restraints, use this instruction but see additional special
vertical restraint instructions contained in this series (CACI No. 3409, Vertical
Restraints—Termination of Reseller, and CACI No. 3410, Vertical
Restraints—Agreement Between Seller and Reseller’s Competitor).
In addition to price, price fixing includes any combination that “tampers with price
structures.” Like its federal counterpart, the Cartwright Act would seem to prohibit
combinations that fix aspects of price such as costs, discounts, credits, financing,
warranty, and delivery terms. Therefore, if this case concerns the fixing of an aspect
of price, other than price itself, this instruction and those that are related to it should
be adapted accordingly.
Sources and Authority
• Trusts Unlawful and Void. Business and Professions Code section 16726.
• “Trust” Defined. Business and Professions Code section 16720.
• Private Right of Action for Antitrust Violations. Business and Professions Code
section 16750(a).
• “ ‘ “To state a cause of action for conspiracy, the complaint must allege (1) the
formation and operation of the conspiracy, (2) the wrongful act or acts done
pursuant thereto, and (3) the damage resulting from such act or acts.” ’ Thus, the
Supreme Court applied the pleading requirements for a civil conspiracy action
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under common law to a statutory action under the Cartwright Act for antitrust
conspiracies.” (Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224,
1236 [18 Cal.Rptr.2d 308], quoting Chicago Title Insurance Co. v. Great Western
Financial Corp. (1968) 69 Cal.2d 305, 316 [70 Cal.Rptr. 849, 444 P.2d 481].)
• “A complaint for unlawful price fixing must allege facts demonstrating that
separate entities conspired together. Only separate entities pursuing separate
economic interests can conspire within the proscription of the antitrust laws
against price fixing combinations.” (Freeman v. San Diego Assn. of Realtors
(1999) 77 Cal.App.4th 171, 188–189 [91 Cal.Rptr.2d 534], internal citations
omitted.)
• “The Cartwright Act prohibits every trust, defined as ‘a combination of capital,
skill or acts by two or more persons’ for specified anticompetitive purposes. The
federal Sherman Act prohibits every ‘contract, combination . . . or conspiracy,
in restraint of trade.’ The similar language of the two acts reflects their common
objective to protect and promote competition. Since the Cartwright Act and the
federal Sherman Act share similar language and objectives, California courts
often look to federal precedents under the Sherman Act for guidance.” (Chavez v.
Whirlpool Corp. (2001) 93 Cal.App.4th 363, 369 [113 Cal.Rptr.2d 175], internal
citations omitted.)
• “The Cartwright Act, like the Sherman Act, prohibits ‘combinations’ for the
purpose of restraining trade. ‘[A] combination means a concert of action by
individuals or entities maintaining separate and independent interests.’ ” (Roth v.
Rhodes (1994) 25 Cal.App.4th 530, 543 [30 Cal.Rptr.2d 706], internal citations
omitted.)
• “Two forms of conspiracy may be used to establish a violation of the antitrust
laws: a horizontal restraint, consisting of a collaboration among competitors; or a
vertical restraint, based upon an agreement between business entities occupying
different levels of the marketing chain.” (G.H.I.I. v. MTS, Inc. (1983) 147
Cal.App.3d 256, 267 [195 Cal.Rptr. 211], internal citations omitted.)
• “ ‘Horizontal combinations are cartels or agreements among competitors which
restrain competition among enterprises at the same level of distribution. They are
ordinarily illegal per se. Vertical restraints are imposed by persons or firms
further up the chain of distribution of a specific product (or in rare cases, further
down the chain) than the enterprise restrained. Vertical non-price restraints are
tested under the rule of reason; that is, the plaintiff must prove that the restraint
had an anticompetitive effect in the relevant market in order to prevail.’ ” (Exxon
Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1680–1681 [60 Cal.Rptr.2d
195], internal citations and footnote omitted.)
• “In general, a Cartwright Act price fixing complaint must allege specific facts in
addition to stating the purpose or effect of the price fixing agreement and that
the accused was a member of or acted pursuant to the price fixing agreement.”
(Cellular Plus, Inc., supra, 14 Cal.App.4th at p. 1237.)
• “[W]hile some sort of concerted activity is necessary for an antitrust claim, it is
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well settled that an explicit or formal agreement is not required. . . . [A]ll that is
required from an antitrust plaintiff is ‘ “direct or circumstantial evidence that
reasonably tends to prove that the [defendant] and others ‘had a conscious
commitment to a common scheme designed to achieve an unlawful
objective.’ ” ’ ” (In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th
127, 152–153 [204 Cal.Rptr.3d 330].)
• “[A] conspiracy among competitors to restrict output and/or raise prices [is]
unlawful per se without regard to any of its effects . . . .” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851 [107 Cal.Rptr.2d 841, 24 P.3d 493].)
• “ ‘Among the practices which the courts have heretofore deemed to be unlawful
in and of themselves are price fixing, division of markets, group boycotts, and
tying arrangements.’ ‘The “per se” doctrine means that a particular practice and
the setting in which it occurs is sufficient to compel the conclusion that
competition is unreasonably restrained and the practice is consequently illegal.’ ”
(Oakland-Alameda County Builders’ Exchange v. F. P. Lathrop Construction Co.
(1971) 4 Cal.3d 354, 361–362 [93 Cal.Rptr. 602, 482 P.2d 226], internal citations
omitted.)
• “It has long been settled that an agreement to fix prices is unlawful per se. It is
no excuse that the prices fixed are themselves reasonable.” (Catalano Inc. v.
Target Sales, Inc. (1980) 446 U.S. 643, 647 [100 S.Ct. 1925, 64 L.Ed.2d 580].)
• “Under both California and federal law, agreements fixing or tampering with
prices are illegal per se.” (Oakland-Alameda County Builders’ Exchange, supra,
4 Cal.3d at p. 363.)
• “These rules apply whether the price-fixing scheme is horizontal or vertical; that
is, whether the price is fixed among competitors or businesses at different
economic levels.” (Mailand v. Burckle (1978) 20 Cal.3d 367, 377 [143 Cal.Rptr.
1, 572 P.2d 1142], internal citations omitted.)
• “Under the authorities . . . the agreement between plaintiffs and defendants and
between defendants and Powerine were unlawful per se. It is, therefore, not
necessary to inquire whether these arrangements had an actual anticompetitive
effect.” (Mailand, supra, 20 Cal.3d at p. 380.)
• “The alleged antitrust violation need not be the sole or controlling cause of the
injury in order to establish proximate cause, but only need be a substantial factor
in bringing about the injury.” (Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d
7, 23 [126 Cal.Rptr. 327], internal citation omitted.)
• “The plaintiff in a Cartwright Act proceeding must show that an antitrust
violation was the proximate cause of his injuries. The frequently stated ‘standing
to sue’ requirement is merely a rule that an action for violation of the antitrust
laws may be maintained only by a party within the ‘target area’ of the antitrust
violation, and not by one incidentally injured thereby. An ‘antitrust injury’ must
be proved; that is, the type of injury the antitrust laws were intended to prevent,
and which flows from the invidious conduct which renders defendants’ acts
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CACI No. 3400 CARTWRIGHT ACT
unlawful. Finally, a plaintiff must show an injury within the area of the economy
that is endangered by a breakdown of competitive conditions.” (Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 723–724 [187 Cal.Rptr. 797], internal
citations and footnote omitted.)
• “We acknowledge that a plaintiff . . . must often rely on inference rather than
evidence since, usually, unlawful conspiracy is conceived in secrecy and lives its
life in the shadows. But, when he does so, he must all the same rely on an
inference implying unlawful conspiracy more likely than permissible
competition, either in itself or together with other inferences or evidence.”
(Aguilar, supra, 25 Cal.4th at p. 857, internal citations omitted.)
• “The exact parameters of ‘antitrust injury’ under section 16750 have not yet been
established through either court decisions or legislation.” (Cellular Plus, Inc.,
supra, 14 Cal.App.4th at p. 1234.)
• “Should an antitrust conspirator be permitted to raise as a defense that the direct
purchaser passed on some or all of the overcharge to indirect purchasers
downstream in the chain of distribution? [¶¶] We conclude that under the
Cartwright Act, as under federal law, generally no pass-on defense is permitted.”
(Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 763 [111 Cal.Rptr.3d 666, 233
P.3d 1066].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.02[1] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[2] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77[2] (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 1, Elements of Unfair Competition and Business Torts Causes of Action,
1.05[4][a], Ch. 5, Antitrust, 5.04, 5.08, 5.09[1], 5.12
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3401. Horizontal Restraints (Use for Direct
Competitors)—Allocation of Trade or Commerce—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] agreed to allocate or
divide [customers/territories/products]. An agreement to allocate
[customers/territories/products] is an agreement between two or more
competitors not to compete [for the business of particular customers/with
each other in particular territories/in the sale of a particular product].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] and [name of alleged coparticipant] were
or are competitors in the same or related markets;
2. That [name of defendant] and [name alleged coparticipant] agreed
to allocate or divide [customers/territories/products];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s [and [name of alleged coparticipant]’s]
conduct was a substantial factor in causing [name of plaintiff]’s
harm.
New September 2003
Directions for Use
The appropriate bracketed option(s) should be selected and the balance deleted,
depending on the specific facts.
Sources and Authority
• Trusts Unlawful and Void. Business and Professions Code section 16726.
• “Trust” Defined. Business and Professions Code section 16720(a).
• “The Cartwright Act, like the Sherman Act, prohibits ‘combinations’ for the
purpose of restraining trade. ‘[A] combination means a concert of action by
individuals or entities maintaining separate and independent interests.’ ” (Roth v.
Rhodes (1994) 25 Cal.App.4th 530, 543 [30 Cal.Rptr.2d 706], internal citations
omitted.)
• “[B]usinesses may not engage in a horizontal allocation of markets, with would-
be competitors dividing up territories or customers. Such allocations afford each
participant an ‘enclave . . . , free from the danger of outside incursions,’ in
which to exercise monopoly power and extract monopoly premiums.” (In re
Cipro Cases I & II (2015) 61 Cal.4th 116, 148 [187 Cal.Rptr.3d 632, 348 P.3d
845], internal citations omitted.)
• “It is settled that distributors cannot lawfully agree to divide territories or
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customers. Such conduct is sometimes called a ‘horizontal restraint,’ and is a per
se violation of the Sherman Act.” (Guild Wineries & Distilleries v. J. Sosnick
and Son (1980) 102 Cal.App.3d 627, 633 [162 Cal.Rptr. 87], internal citations
omitted.)
• “ ‘One of the classic examples of a per se violation . . . is an agreement
between competitors at the same level of the market structure to allocate
territories in order to minimize competition . . . . This Court has reiterated time
and time again that “[h]orizontal territorial limitations . . . are naked restraints
of trade with no purpose except stifling of competition.” Such limitations are per
se violations of the Sherman Act.’ ” (Palmer v. BRG of Georgia, Inc. (1990) 498
U.S. 46, 49 [111 S.Ct. 401, 112 L.Ed.2d 349], internal citations omitted.)
• “Two forms of conspiracy may be used to establish a violation of the antitrust
laws: a horizontal restraint, consisting of a collaboration among competitors; or a
vertical restraint, based upon an agreement between business entities occupying
different levels of the marketing chain.” (G.H.I.I. v. MTS, Inc. (1983) 147
Cal.App.3d 256, 267 [195 Cal.Rptr. 211], internal citations omitted.)
• “ ‘Horizontal combinations are cartels or agreements among competitors which
restrain competition among enterprises at the same level of distribution. They are
ordinarily illegal per se. Vertical restraints are imposed by persons or firms
further up the chain of distribution of a specific product (or in rare cases, further
down the chain) than the enterprise restrained. Vertical non-price restraints are
tested under the rule of reason; that is, the plaintiff must prove that the restraint
had an anticompetitive effect in the relevant market in order to prevail.’ ” (Exxon
Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1680–1681 [60 Cal.Rptr.2d
195], internal citations and footnote omitted.)
• “The alleged antitrust violation need not be the sole or controlling cause of the
injury in order to establish proximate cause, but only need be a substantial factor
in bringing about the injury.” (Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d
7, 23 [126 Cal.Rptr. 327], internal citation omitted.)
• “The plaintiff in a Cartwright Act proceeding must show that an antitrust
violation was the proximate cause of his injuries. The frequently stated ‘standing
to sue’ requirement is merely a rule that an action for violation of the antitrust
laws may be maintained only by a party within the ‘target area’ of the antitrust
violation, and not by one incidentally injured thereby. An ‘antitrust injury’ must
be proved; that is, the type of injury the antitrust laws were intended to prevent,
and which flows from the invidious conduct which renders defendants’ acts
unlawful. Finally, a plaintiff must show an injury within the area of the economy
that is endangered by a breakdown of competitive conditions.” (Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 723–724 [187 Cal.Rptr. 797], internal
citations and footnote omitted.)
• “The exact parameters of ‘antitrust injury’ under section 16750 have not yet been
established through either court decisions or legislation.” (Cellular Plus, Inc. v.
Superior Court (1993) 14 Cal.App.4th 1224, 1234 [18 Cal.Rptr.2d 308].)
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CARTWRIGHT ACT CACI No. 3401
• Business and Professions Code section 16750(a) confers a private right of action
for treble damages and attorneys fees on “[a]ny person who is injured in his
business or property by reason of anything forbidden or declared unlawful by
this chapter.”
• “The Cartwright Act prohibits every trust, defined as ‘a combination of capital,
skill or acts by two or more persons’ for specified anticompetitive purposes. The
federal Sherman Act prohibits every ‘contract, combination . . . or conspiracy,
in restraint of trade.’ The similar language of the two acts reflects their common
objective to protect and promote competition. Since the Cartwright Act and the
federal Sherman Act share similar language and objectives, California courts
often look to federal precedents under the Sherman Act for guidance.” (Chavez v.
Whirlpool Corp. (2001) 93 Cal.App.4th 363, 369 [113 Cal.Rptr.2d 175], internal
citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.02[2] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[3] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 1, Elements of Unfair Competition and Business Torts Causes of Action,
1.05[4][b]
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3402. Horizontal Restraints—Dual Distributor
Restraints—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] [stopped doing business
with/refused to deal with/restrained] [[him/her/nonbinary pronoun/it]/a
reseller]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] sold [products] directly in competition
with [[name of plaintiff]/a reseller] to a significant portion of
[[name of plaintiff]/the reseller]’s customers or potential
customers;
2. That [name of defendant] [stopped doing business with/refused to
deal with/restrained] [[name of plaintiff]/the reseller];
3. That a motivating reason for the decision to [end business with/
refuse to deal with/restrain] [[name of plaintiff]/the reseller] was
[his/her/nonbinary pronoun/its] refusal to agree to [name of
defendant]’s [specify the claimed restraint, e.g., territorial or
customer restrictions];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
The appropriate bracketed options should be selected and the balance deleted
depending on the specific facts. For example, the word “reseller” should be used
instead of plaintiff if the plaintiff is not the reseller—such as, when the plaintiff is a
government enforcer.
Sources and Authority
• Trusts Unlawful and Void. Business and Professions Code section 16726.
• “Trust” Defined. Business and Professions Code section 16720(a).
• “We hold that it is unlawful for a manufacturer who also distributes its own
products in one geographic area to terminate an independent distributor when a
substantial factor in bringing about the termination is the distributor’s refusal to
accept the manufacturer’s attempt to enforce or impose territorial or customer
restrictions among distributors.” (Guild Wineries & Distilleries v. J. Sosnick and
Son (1980) 102 Cal.App.3d 627, 630 [162 Cal.Rptr. 87].)
• “ ‘[A] refusal of a manufacturer to deal with a distributor can constitute a
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“combination” in restraint of trade within the purview’ of the Sherman Act . . . .
We conclude that this case . . . is governed by a per se principle.” (Guild
Wineries & Distilleries, supra, 102 Cal.App.3d at p. 633.)
• In Dimidowich v. Bell & Howell (9th Cir. 1986) 803 F.2d 1473, 1482–1484, opn.
mod. (9th Cir. 1987) 810 F.2d 1517, the Ninth Circuit Court of Appeals rejected
the holding in Guild Wineries, supra, that the per se standard applied, and
predicted that the California Supreme Court would overrule Guild Wineries. This
has not yet occurred. In the meantime, the decision in the Guild court remains
binding on all subordinate state courts. (Auto Equity Sales v. Superior Court
(1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)
• “It is settled that distributors cannot lawfully agree to divide territories or
customers. Such conduct is sometimes called a ‘horizontal restraint,’ and is a per
se violation of the Sherman Act . . . . When Guild became a distributor the
same rule became applicable to it. Guild could not lawfully coerce a fellow
distributor into allocating customers any more than Sosnick and other
distributors could lawfully agree to such an allocation.” (Guild Wineries &
Distilleries, supra, 102 Cal.App.3d at p. 633.)
• “The alleged antitrust violation need not be the sole or controlling cause of the
injury in order to establish proximate cause, but only need be a substantial factor
in bringing about the injury.” (Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d
7, 23 [126 Cal.Rptr. 327], internal citation omitted.)
• “The plaintiff in a Cartwright Act proceeding must show that an antitrust
violation was the proximate cause of his injuries. The frequently stated ‘standing
to sue’ requirement is merely a rule that an action for violation of the antitrust
laws may be maintained only by a party within the ‘target area’ of the antitrust
violation, and not by one incidentally injured thereby. An ‘antitrust injury’ must
be proved; that is, the type of injury the antitrust laws were intended to prevent,
and which flows from the invidious conduct which renders defendants’ acts
unlawful. Finally, a plaintiff must show an injury within the area of the economy
that is endangered by a breakdown of competitive conditions.” (Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 723–724 [187 Cal.Rptr. 797], internal
citations and footnote omitted.)
• “The exact parameters of ‘antitrust injury’ under section 16750 have not yet been
established through either court decisions or legislation.” (Cellular Plus, Inc. v.
Superior Court (1993) 14 Cal.App.4th 1224, 1234 [18 Cal.Rptr.2d 308].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.02 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77[3] (Matthew Bender)
565
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3403. Horizontal Restraints (Use for Direct Competitors)—Group
Boycott—Per Se Violation—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] agreed not to deal with
[him/her/nonbinary pronoun/it] [or to deal with [him/her/nonbinary
pronoun/it] only on specified terms]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] [and [name of alleged coparticipant[s]]]
agreed to [specify claimed refusal to deal, e.g., “refuse to sell to
[name of plaintiff]”];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction applies to agreements between competitors that are directly intended
to affect competition facing them. In determining whether to give this per se
instruction or the rule of reason instructions, it is important whether the challenged
combination was horizontal (between competitors), vertical (between sellers and
buyers), or some combination of the two. Horizontal combinations are subject to per
se instructions; vertical combinations to the rule of reason instructions. Those
combinations falling in between must be carefully scrutinized to determine whether
their principal purpose is to restrain competition between competitors or to
downstream resellers by the seller.
Sources and Authority
• Trusts Unlawful and Void. Business and Professions Code section 16726.
• “Trust” Defined. Business and Professions Code section 16720(c).
• “The antitrust laws do not preclude a party from unilaterally determining the
parties with which, or the terms on which, it will transact business. However, it
is a violation of the antitrust laws for a group of competitors with separate and
independent economic interests, or a single competitor with sufficient leverage,
to force another to boycott a competitor at the same level of distribution.”
(Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 195 [91
Cal.Rptr.2d 534], internal citation omitted.)
• “It is well settled that the antitrust laws do not preclude a trader from
unilaterally determining the parties with whom it will deal and the terms on
which it will transact business. An antitrust case must be based upon
conspiratorial rather than unilateral conduct. Thus, only group boycotts are
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unlawful under the Sherman and Cartwright Acts.” (G.H.I.I. v. MTS, Inc. (1983)
147 Cal.App.3d 256, 267–268 [195 Cal.Rptr. 211], internal citations omitted.)
• “ ‘Group boycotts, or concerted refusals by traders to deal with other traders,
have long been held to be in the forbidden category. They have not been saved
by allegations that they were reasonable in the specific circumstances, nor by a
failure to show that they “fixed or regulated prices, parcelled out or limited
production, or brought about a deterioration in quality.” Even when they
operated to lower prices or temporarily to stimulate competition they were
banned. For . . . such agreements, no less than those to fix minimum prices,
cripple the freedom of traders and thereby restrain their ability to sell in
accordance with their own judgment.’ ” (Oakland-Alameda County Builders’
Exchange v. F. P. Lathrop Construction Co. (1971) 4 Cal.3d 354, 365 [93
Cal.Rptr. 602, 482 P.2d 226], internal citations omitted.)
• “The Cartwright Act, like the Sherman Act, prohibits ‘combinations’ for the
purpose of restraining trade. ‘[A] combination means a concert of action by
individuals or entities maintaining separate and independent interests.’ ” (Roth v.
Rhodes (1994) 25 Cal.App.4th 530, 543 [30 Cal.Rptr.2d 706], internal citations
omitted.)
• “ ‘[T]there are certain agreements or practices which because of their pernicious
effect on competition and lack of any redeeming virtue are conclusively
presumed to be unreasonable and therefore illegal without elaborate inquiry as to
the precise harm they have caused or the business excuse for their use.’ Among
these per se violations is the concerted refusal to deal with other traders, or, as it
is often called, the group boycott.” (Marin County Bd. of Realtors v. Palsson
(1976) 16 Cal.3d 920, 930–931 [130 Cal.Rptr. 1, 549 P.2d 833], internal citation
omitted.)
• In Marin County Bd. of Realtors, supra, the Supreme Court explained that there
is a distinction between “direct boycotts aimed at coercing parties to adopt
noncompetitive practices and indirect boycotts which result in refusals to deal
only as a by-product of the agreement.” (Marin County Bd. of Realtors, supra,
16 Cal.3d at p. 932.)
• Not all group boycotts are evaluated as per se violations: “This limitation on the
per se rule is particularly applicable to trade association agreements not directly
aimed at coercing third parties and eliminating competitors. In cases involving
such agreements, courts have generally applied the rule of reason test.” (Marin
County Bd. of Realtors, supra, 16 Cal.3d at p. 932.)
• “The alleged antitrust violation need not be the sole or controlling cause of the
injury in order to establish proximate cause, but only need be a substantial factor
in bringing about the injury.” (Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d
7, 23 [126 Cal.Rptr. 327], internal citation omitted.)
• “The plaintiff in a Cartwright Act proceeding must show that an antitrust
violation was the proximate cause of his injuries. The frequently stated ‘standing
to sue’ requirement is merely a rule that an action for violation of the antitrust
567
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CACI No. 3403 CARTWRIGHT ACT
laws may be maintained only by a party within the ‘target area’ of the antitrust
violation, and not by one incidentally injured thereby. An ‘antitrust injury’ must
be proved; that is, the type of injury the antitrust laws were intended to prevent,
and which flows from the invidious conduct which renders defendants’ acts
unlawful. Finally, a plaintiff must show an injury within the area of the economy
that is endangered by a breakdown of competitive conditions.” (Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 723–724 [187 Cal.Rptr. 797], internal
citations and footnote omitted.)
• “The exact parameters of ‘antitrust injury’ under section 16750 have not yet been
established through either court decisions or legislation.” (Cellular Plus, Inc. v.
Superior Court (1993) 14 Cal.App.4th 1224, 1234 [18 Cal.Rptr.2d 308].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.02[3] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[5] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77[5] (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.08, 5.09[3], 5.14
568
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3404. Horizontal Restraints—Group Boycott—Rule of
Reason—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] agreed to [describe
conduct, e.g., “formulate an arbitrary membership limitation rule with
[identify other participant[s]]”]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] and [name of alleged coparticipant[s]]
agreed to [describe conduct, e.g., “formulate an arbitrary
membership limitation rule”];
2. That the purpose or effect of [name of defendant]’s conduct was to
restrain competition;
3. That the anticompetitive effect of the restraint[s] outweighed any
beneficial effect on competition;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction applies to agreements between competitors that are directly intended
to affect competition facing them. In determining whether to give this per se
instruction or the rule of reason instructions, it is important whether the challenged
combination was horizontal (between competitors), vertical (between sellers and
buyers), or some combination of the two. Horizontal combinations are subject to per
se instructions; vertical combinations to the rule of reason instructions. Those
combinations falling in between must be carefully scrutinized to determine whether
their principal purpose is to restrain competition between competitors or to
downstream resellers by the seller.
For additional instructions regarding the rule of reason, see CACI Nos. 3411
through 3414.
Sources and Authority
• Trusts Unlawful and Void. Business and Professions Code section 16726.
• “Trust” Defined. Business and Professions Code section 16720(c).
• Trade Groups Not Unlawful. Business and Professions Code section 16725.
• “A group boycott can involve an agreement that a group of buyers will purchase
only from a designated seller . . . . [A]n unlawful group boycott requires an
express or implicit agreement among competitors to restrict commerce in some
569
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CACI No. 3404 CARTWRIGHT ACT
manner.” (UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169
Cal.App.4th 357, 365–366 [87 Cal.Rptr.3d 81].)
• “It is well settled that the antitrust laws do not preclude a trader from
unilaterally determining the parties with whom it will deal and the terms on
which it will transact business. An antitrust case must be based upon
conspiratorial rather than unilateral conduct. Thus, only group boycotts are
unlawful under the Sherman and Cartwright Acts.” (G.H.I.I. v. MTS, Inc. (1983)
147 Cal.App.3d 256, 267–268 [195 Cal.Rptr. 211], internal citations omitted.)
• In Marin County Bd. of Realtors v. Palsson (1976) 16 Cal.3d 920, 931 [130
Cal.Rptr. 1, 549 P.2d 833], the Supreme Court explained that there is a
distinction between “direct boycotts aimed at coercing parties to adopt
noncompetitive practices and indirect boycotts which result in refusals to deal
only as a by-product of the agreement.”
• Not all group boycotts are evaluated as per se violations: “This limitation on the
per se rule is particularly applicable to trade association agreements not directly
aimed at coercing third parties and eliminating competitors. In cases involving
such agreements, courts have generally applied the rule of reason test.” (Marin
County Bd. of Realtors, supra, 16 Cal.3d at p. 932.)
• “Although the Sherman Act and the Cartwright Act by their express terms forbid
all restraints on trade, each has been interpreted to permit by implication those
restraints found to be reasonable.” (Corwin v. Los Angeles Newspaper Service
Bureau, Inc. (1971) 4 Cal.3d 842, 853 [94 Cal.Rptr. 785, 484 P.2d 953], internal
citation omitted.)
• “To determine whether the restrictions are reasonable, ‘the court must ordinarily
consider the facts peculiar to the business to which the restraint is applied; its
condition before and after the restraint was imposed; the nature of the restraint
and its effect, actual or probable. The history of the restraint, the evil believed to
exist, the reason for adopting the particular remedy, the purpose or end sought to
be obtained, are all relevant facts.’ The court should consider ‘the percentage of
business controlled, the strength of the remaining competition [and] whether the
action springs from business requirements or purpose to monopolize . . . .’
Whether a restraint of trade is reasonable is a question of fact to be determined
at trial.” (Corwin, supra, 4 Cal.3d at pp. 854–855, internal citations omitted.)
• “Generally, in determining whether conduct unreasonably restrains trade, ‘[a]
rule of reason analysis requires a determination of whether . . . its anti-
competitive effects outweigh its pro-competitive effects.’ ” (Bert G. Gianelli
Distrib. Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020, 1048 [219 Cal.Rptr.
203], internal citation omitted, overruled on other grounds in Dore v. Arnold
Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56].)
• “The alleged antitrust violation need not be the sole or controlling cause of the
injury in order to establish proximate cause, but only need be a substantial factor
in bringing about the injury.” (Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d
7, 23 [126 Cal.Rptr. 327], internal citation omitted.)
570
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CARTWRIGHT ACT CACI No. 3404
• “The plaintiff in a Cartwright Act proceeding must show that an antitrust
violation was the proximate cause of his injuries. The frequently stated ‘standing
to sue’ requirement is merely a rule that an action for violation of the antitrust
laws may be maintained only by a party within the ‘target area’ of the antitrust
violation, and not by one incidentally injured thereby. An ‘antitrust injury’ must
be proved; that is, the type of injury the antitrust laws were intended to prevent,
and which flows from the invidious conduct which renders defendants’ acts
unlawful. Finally, a plaintiff must show an injury within the area of the economy
that is endangered by a breakdown of competitive conditions.” (Kolling v. Dow
Jones Co. (1982) 137 Cal.App.3d 709, 723–724 [187 Cal.Rptr. 797], internal
citations and footnote omitted.)
• “The exact parameters of ‘antitrust injury’ under section 16750 have not yet been
established through either court decisions or legislation.” (Cellular Plus, Inc. v.
Superior Court (1993) 14 Cal.App.4th 1224, 1234 [18 Cal.Rptr.2d 308].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.02[3] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[5] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.05, 5.11, 5.17–5.22
571
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3405. Horizontal and Vertical Restraints (Use for Direct
Competitors or Supplier/Reseller Relations)—Other Unreasonable
Restraint of Trade—Rule of Reason—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] agreed to [insert
unreasonable restraint of trade]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] [and [name of alleged coparticipant[s]]]
agreed to [describe conduct constituting an unreasonable restraint of
trade];
2. That the purpose or effect of [name of defendant]’s conduct was to
restrain competition;
3. That the anticompetitive effect of the restraint[s] outweighed any
beneficial effect on competition;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction is intended for actions that are limited only by the bounds of human
ingenuity. Any such conduct, if it does not fit into a per se category, is judged under
the rule of reason. Thus, the illegality of a termination that results from a buyer’s
disobedience with a seller’s exclusive “dealing,” territorial location, or customer
restrictions, unless ancillary to price fixing, should be resolved under the rule of
reason. For cases involving vertical restraints, see also the vertical restraint
instructions contained in this series.
It is possible for a complaint to include both per se and rule of reason claims. Also,
per se claims alternatively may be tested under the rule of reason if there is reason
to believe that proof of the per se claims may fall short. If either is the case,
connecting language between the pertinent instructions should be provided, such as:
“If you find that [name of defendant]’s conduct did not amount to an agreement to
[specify conduct, e.g., “fix resale prices,” “boycott,” “allocate markets”], [name of
plaintiff] may still prove that the conduct otherwise lessened competition.”
For additional instructions regarding the rule of reason, see CACI Nos. 3411
through 3414.
Sources and Authority
• Trusts Unlawful and Void. Business and Professions Code section 16726.
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CARTWRIGHT ACT CACI No. 3405
• “Trust” Defined. Business and Professions Code section 16720(a).
• Trade Groups Not Unlawful. Business and Professions Code section 16725.
• “The Cartwright Act, like the Sherman Act, prohibits ‘combinations’ for the
purpose of restraining trade. ‘[A] combination means a concert of action by
individuals or entities maintaining separate and independent interests.’ ” (Roth v.
Rhodes (1994) 25 Cal.App.4th 530, 543 [30 Cal.Rptr.2d 706], internal citations
omitted.)
• “ ‘Horizontal combinations are cartels or agreements among competitors which
restrain competition among enterprises at the same level of distribution. They are
ordinarily illegal per se. Vertical restraints are imposed by persons or firms
further up the chain of distribution of a specific product (or in rare cases, further
down the chain) than the enterprise restrained. Vertical non-price restraints are
tested under the rule of reason; that is, the plaintiff must prove that the restraint
had an anticompetitive effect in the relevant market in order to prevail.’ ” (Exxon
Corp. v. Superior Court (1997) 51 Cal.App.4th 1672, 1680–1681 [60 Cal.Rptr.2d
195], internal citations and footnote omitted.)
• “Although the Sherman Act and the Cartwright Act by their express terms forbid
all restraints on trade, each has been interpreted to permit by implication those
restraints found to be reasonable.” (Corwin v. Los Angeles Newspaper Service
Bureau, Inc. (1971) 4 Cal.3d 842, 853 [94 Cal.Rptr. 785, 484 P.2d 953], internal
citation omitted.)
• “To determine whether the restrictions are reasonable, ‘the court must ordinarily
consider the facts peculiar to the business to which the restraint is applied; its
condition before and after the restraint was imposed; the nature of the restraint
and its effect, actual or probable. The history of the restraint, the evil believed to
exist, the reason for adopting the particular remedy, the purpose or end sought to
be obtained, are all relevant facts.’ The court should consider ‘the percentage of
business controlled, the strength of the remaining competition [and] whether the
action springs from business requirements or purpose to monopolize . . . .’
Whether a restraint of trade is reasonable is a question of fact to be determined
at trial.” (Corwin, supra, 4 Cal.3d at pp. 854–855, internal citations omitted.)
• “Generally, in determining whether conduct unreasonably restrains trade, ‘[a]
rule of reason analysis requires a determination of whether . . . its anti-
competitive effects outweigh its pro-competitive effects.’ ” (Bert G. Gianelli
Distrib. Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020, 1048 [219 Cal.Rptr.
203], internal citation omitted, overruled on other grounds, Dore v. Arnold
Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56].)
• “The alleged antitrust violation need not be the sole or controlling cause of the
injury in order to establish proximate cause, but only need be a substantial factor
in bringing about the injury.” (Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d
7, 23 [126 Cal.Rptr. 327], internal citation omitted.)
• “The plaintiff in a Cartwright Act proceeding must show that an antitrust
573
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CACI No. 3405 CARTWRIGHT ACT
violation was the proximate cause of his injuries. The frequently stated ‘standing
to sue’ requirement is merely a rule that an action for violation of the antitrust
laws may be maintained only by a party within the ‘target area’ of the antitrust
violation, and not by one incidentally injured thereby. An ‘antitrust injury’ must
be proved; that is, the type of injury the antitrust laws were intended to prevent,
and which flows from the invidious conduct which renders defendants’ acts
unlawful. Finally, a plaintiff must show an injury within the area of the economy
that is endangered by a breakdown of competitive conditions.” (Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 723–724 [187 Cal.Rptr. 797], internal
citations and footnote omitted.)
• “The exact parameters of ‘antitrust injury’ under section 16750 have not yet been
established through either court decisions or legislation.” (Cellular Plus, Inc. v.
Superior Court (1993) 14 Cal.App.4th 1224, 1234 [18 Cal.Rptr.2d 308].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
1 Antitrust Laws and Trade Regulation, Ch. 12, The Per Se Rule and the Rule of
Reason, § 12.03 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.165[2] (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.05, 5.11, 5.17–5.22
574
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3406. Horizontal and Vertical Restraints—“Agreement” Explained
An agreement exists if two or more persons or companies combine or
join together for a common purpose. No written document or specific
understanding is necessary for an agreement to exist. For [name of
defendant] to be part of an agreement, [he/she/nonbinary pronoun/it] must
have known [he/she/nonbinary pronoun/it] was joining in an agreement,
even if [he/she/nonbinary pronoun/it] was not aware of all of its aspects.
[An agreement also may exist if a [person/company] unwillingly
participates-that is, if another person coerces [him/her/nonbinary pronoun/
it] to join the agreement against [his/her/nonbinary pronoun/its] wishes.]
[To prove the existence of an agreement, [name of plaintiff] must show
more than a similarity between [name of defendant]’s conduct and the
conduct of others. Independent business judgment in response to market
forces sometimes leads competitors to act in a similar way because of
their individual self-interests. That conduct alone is not enough to prove
an agreement. However, similar behavior, along with other evidence
suggesting joint conduct, may be used to decide whether there was an
agreement.]
In deciding whether [name of defendant]’s conduct was the result of an
agreement, you may consider, among other factors, the following:
(a) The nature of the acts;
(b) The relationship between the parties;
(c) Whether the conduct was contrary to the best interests of some of
the persons or companies in question;
(d) Whether the conduct lacked a legitimate business purpose; and
(e) Whether the conduct occurred following communications
concerning the subject of the conduct.
New September 2003
Directions for Use
The third paragraph should be read only where a horizontal agreement is involved.
Sources and Authority
• “Trust” Defined. Business and Professions Code section 16720(a).
• “The Cartwright Act, like the Sherman Act, requires an illegal ‘combination’ or
‘conspiracy’ to restrain trade.” (Kolling v. Dow Jones & Co. (1982) 137
Cal.App.3d 709, 720 [187 Cal.Rptr. 797], internal citations omitted.)
575
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• “ ‘[A] combination means a concert of action by individuals or entities
maintaining separate and independent interests.’ ” (Roth v. Rhodes (1994) 25
Cal.App.4th 530, 543 [30 Cal.Rptr.2d 706], internal citations omitted.)
• “[A] necessary ‘conspiracy’ or ‘combination’ cognizable as an antitrust action is
formed where a trader uses coercive tactics to impose restraints upon otherwise
uncooperative businesses. If a ‘single trader’ pressures customers or dealers into
pricing arrangements, an unlawful combination is established, irrespective of any
monopoly or conspiracy, and despite the recognized right of a trader to
determine with whom it will deal.” (G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d
256, 268 [195 Cal.Rptr. 211], internal citations omitted.)
• “In United States v. International Harvester Co., 274 U.S. 693, 47 S.Ct. 748, 71
L.Ed. 1302 (1927), the Court acknowledged as lawful, competitors’ practice of
independently, and as a matter of business judgment, following the prices of an
industry leader. ‘[T]he fact that competitors may see proper, in the exercise of
their own judgment, to follow the prices of another manufacturer, does not
establish any suppression of competition or show any sinister domination.’ ”
(Wilcox v. First Interstate Bank of Oregon (9th Cir. 1987) 815 F.2d 522, 526.)
• “[P]arallel changes in prices and exchanges of price information by competitors
may be motivated by legitimate business concerns.” (City of Long Beach v.
Standard Oil Co. (9th Cir. 1989) 872 F.2d 1401, 1406.)
• “Price information published without ‘plus factors,’ which indicate an agreement,
is judged under the rule of reason. If the exchange of price information
constitutes reasonable business behavior the exchange is not an illegal
agreement. In order to prevail, ‘plaintiff must demonstrate that the allegedly
parallel acts were against each conspirator’s self interest, that is, that the decision
to act was not based on a good faith business judgment.’ ” (Supermarket of
Homes, Inc. v. San Fernando Valley Bd. of Realtors (9th Cir. 1986) 786 F.2d
1400, 1407, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.160[2] (Matthew Bender)
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3407. Horizontal and Vertical Restraints—Agreement Between
Company and Its Employee
[Name of plaintiff] claims that [name of defendant’s agent/employee/offıcer],
who is an [agent/employee/officer] of [name of defendant], had an
agreement with [name of defendant]. You may find that [name of
defendant’s agent/employee/offıcer] and [name of defendant] had the
required agreement only if you decide that [he/she/nonbinary pronoun]
had a separate economic interest from [name of defendant] and acted in
[his/her/nonbinary pronoun] own separate interest.
New September 2003
Directions for Use
This instruction is intended to clarify the circumstances under which an employee,
agent, or officer can form an unlawful agreement. The parties may wish to develop
an example to illuminate the issue, such as an employee running a side business that
may combine with the business of his employer to restrain trade.
Sources and Authority
• “[T]he Act prohibits the combination of resources of two or more independent
interests for the purpose of restraining commerce and preventing market
competition in the variety of ways listed in the statute.” (Lowell v. Mother’s
Cake and Cookie Co. (1978) 79 Cal.App.3d 13, 23 [144 Cal.Rptr. 664], internal
citation omitted.)
• “[A] corporation cannot conspire with itself or its agents for purposes of the
antitrust laws.” (Kolling v. Dow Jones & Co. (1982) 137 Cal.App.3d 709, 720
[187 Cal.Rptr. 797], internal citation omitted.)
• “It is also held that an individual acting alone through his agent or a corporation
acting alone through its officers is not a combination in restraint of trade
proscribed by the statute. The rationale of these decisions is that the acts of the
agents or employees in the operation of the business are the acts of the
principal . . . . We are of the opinion that the language of section 16720 of the
Business and Professions Code contemplates concert of action by separate
individuals or entities maintaining separate and independent interests . . . .”
(Bondi v. Jewels by Edwar, Ltd. (1968) 267 Cal.App.2d 672, 677–678 [73
Cal.Rptr. 494], internal citations omitted.)
• “[I]t is well settled that a complaint for antitrust violations which fails to allege
such concerted action by separate entities maintaining separate and independent
interests is subject to demurrer.” (G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d
256, 266 [195 Cal.Rptr. 211], internal citations omitted.)
• “[Under the Sherman Act,] [t]he officers of a single firm are not separate
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economic actors pursuing separate economic interests, so agreements among
them do not suddenly bring together economic power that was previously
pursuing divergent goals. Coordination within a firm is as likely to result from
an effort to compete as from an effort to stifle competition. In the marketplace,
such coordination may be necessary if a business enterprise is to compete
effectively. For these reasons, officers or employees of the same firm do not
provide the plurality of actors imperative for a § 1 conspiracy.” (Copperweld
Corp. v. Independence Tube Corp. (1984) 467 U.S. 752, 769 [104 S.Ct. 2731, 81
L.Ed.2d 628], footnote omitted.)
• “[M]any courts have created an exception for corporate officers acting on their
own behalf.” (Copperweld Corp., supra, 467 U.S. at p. 769, fn. 15.)
• “We . . . need not reach the broader issue extensively argued in the amicus
brief, i.e., whether the Copperweld rule would apply to the Cartwright Act when
the conspiracy or combination in restraint of trade is purely intra-enterprise and
there is no coerced or unwitting compliance by the victim in the forbidden
activity.” (MacManus v. A. E. Realty Partners (1987) 195 Cal.App.3d 1106,
1111, fn. 4 [241 Cal.Rptr. 315].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
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3408. Vertical Restraints—“Coercion” Explained
Coercion is conduct that interferes with the freedom of a reseller to sell
in accordance with the reseller’s own judgment. [It may include a threat
by [name of defendant] to stop doing business with [[name of plaintiff]/a
reseller] or to hold back any product or service important to [his/her/
nonbinary pronoun/its] competition in the market.] A unilateral decision
to deal or refuse to deal with a particular reseller does not constitute
coercion.
Coercion may be proven directly or indirectly. In deciding whether there
was coercion, you may consider, among other factors, the following:
(a) Whether [name of defendant] penalized or threatened to penalize
[name of plaintiff] for not following [his/her/nonbinary pronoun/its]
suggestions;
(b) Whether [name of defendant] made or threatened to make an
important benefit depend on [name of plaintiff] following [his/her/
nonbinary pronoun/its] suggestions;
(c) Whether [name of defendant] required [name of plaintiff] to get
approval before doing something other than what
[he/she/nonbinary pronoun/it] suggested; and
(d) The relative bargaining power of [name of defendant] and [name of
plaintiff].
New September 2003; Revised May 2020
Directions for Use
In the bracketed portion of the first paragraph, the word “reseller” should be used if
the plaintiff is not the reseller.
Sources and Authority
• “[T]he ‘conspiracy’ or ‘combination’ necessary to support an antitrust action can
be found where a supplier or producer, by coercive conduct, imposes restraints
to which distributors involuntarily adhere. If a ‘single trader’ pressures customers
or dealers into adhering to resale price maintenance, territorial restrictions,
exclusive dealing arrangements or illegal ‘tie-ins,’ an unlawful combination is
established, irrespective of any monopoly or conspiracy, and despite the
recognized right of a producer to determine with whom it will deal.” (Kolling v.
Dow Jones & Co. (1982) 137 Cal.App.3d 709, 720 [187 Cal.Rptr. 797], internal
citations omitted.)
• “If a seller does no more than announce a policy designed to restrain trade, and
declines to sell to those who fail to adhere to the policy, no illegal combination
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is established.” (Kolling, supra, 137 Cal.App.3d at p. 721, internal citations
omitted.)
• “A manufacturer may choose those with whom it wishes to deal and unilaterally
may refuse to deal with a distributor or customer for business reasons without
running afoul of the antitrust laws. It will thus be rare for a court to infer a
vertical combination solely from a business’s unilateral refusal to deal with
distributors or customers who do not comply with certain conditions.
Nonetheless, there is a line of cases that supports the proposition that a
manufacturer may form a ‘conspiracy’ or ‘combination’ under the antitrust laws
if it imposes restraints on dealers or customers by coercive conduct and they
involuntarily adhere to those restraints.” (Dimidowich v. Bell & Howell (9th Cir.
1986) 803 F.2d 1473, 1478, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.52[5] (Matthew Bender)
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3409. Vertical Restraints—Termination of Reseller
A supplier, acting independently, may choose those resellers to which it
wishes to sell or not sell. It may announce to those resellers the terms of
resale, including resale prices, in advance. The supplier may terminate
those resellers that do not follow these terms as long as the supplier acts
independently in doing so.
However, if a supplier coerces a reseller to follow its suggested terms of
resale, and the reseller does so, this conduct is an agreement to restrain
competition.
New September 2003
Directions for Use
There are circumstances where the terminated party that has combined with the
supplier, other than as a buyer, may have a claim. For example, a customer that
leases the supplier’s product and then subleases it may also invoke this law. In such
cases, this instruction should be adapted accordingly.
Sources and Authority
• “If a seller does no more than announce a policy designed to restrain trade, and
declines to sell to those who fail to adhere to the policy, no illegal combination
is established. Also, a supplier may suggest policies and use persuasion to obtain
adherence. At the same time, an illegal combination may be found where a
supplier secures compliance with announced policies in restraint of trade by
means which go beyond mere announcement of policy and the refusal to deal. If,
for example, the supplier takes ‘affirmative action’ to bring about the involuntary
acquiescence of its dealers, an unlawful combination exists.” (Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 721 [187 Cal.Rptr. 797], internal
citations omitted.)
• “[A] manufacturer’s announcement of a resale price policy and its refusal to deal
with dealers who do not comply coupled with the dealers’ voluntary
acquiescence in the policy does not constitute an implied agreement or an
unlawful combination as a matter of law. An unlawful combination arises,
however, if the manufacturer goes beyond those measures by seeking
communication of a dealer’s acquiescence or agreement to secure the dealer’s
compliance, such as by means of coercion, and the dealer so communicates.”
(Chavez v. Whirlpool Corp. (2001) 93 Cal.App.4th 363, 372–373 [113
Cal.Rptr.2d 175], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.02 (Matthew
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Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[3] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77 (Matthew Bender)
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3410. Vertical Restraints—Agreement Between Seller and
Reseller’s Competitor
If a reseller coerces a supplier to refuse to do business with a competing
reseller, and the supplier does so, this conduct is an agreement to
restrain competition.
Refusing to do business with a reseller after receiving complaints by a
competing reseller is not, by itself, an agreement to restrain competition.
However, if a supplier receives such complaints and then agrees with the
complaining reseller to act on them, that becomes an agreement to
restrain competition.
New September 2003
Directions for Use
If the complaining competitor is also a named defendant, this instruction must be
rewritten to reflect that circumstance.
Sources and Authority
• In Bert G. Gianelli Distrib. Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020,
1043–1044 [219 Cal.Rptr. 203], overruled on other grounds, Dore v. Arnold
Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56],
the Court of Appeal held that proof that the reseller competing against the
plaintiff complained to the seller about plaintiff’s pricing and that the seller then
took action against the plaintiff reseller in response to the complaint was
sufficient to support a finding of a combination.
• “[T]he plaintiff must present evidence that tends to exclude, although it need not
actually exclude, the possibility that the alleged conspirators acted independently
rather than collusively. Insufficient is a mere assertion that a reasonable trier of
fact might disbelieve any denial by the defendants of an unlawful conspiracy.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 852 [107 Cal.Rptr.2d
841, 24 P.3d 493].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.02 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168 (Matthew Bender)
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3411. Rule of Reason—Anticompetitive Versus Beneficial Effects
In deciding whether [name of defendant]’s challenged restraint had an
anticompetitive or beneficial purpose or effect on competition, you should
consider the results the restraint was intended to achieve or actually did
achieve. In balancing these purposes or effects, you also may consider,
among other factors, the following:
(a) The nature of the restraint;
(b) The probable effect of the restraint on the business involved;
(c) The history of the restraint;
(d) The reasonableness of the stated purpose for the restraint;
(e) The availability of less restrictive means to accomplish the stated
purpose;
(f) The portion of the market affected by the restraint; [and]
(g) The extent of [name of defendant]’s market power; [and]
(h) [Insert other relevant consideration].
New September 2003
Sources and Authority
• “The basic purpose of the antitrust laws is to prevent undue restraints upon trade
which have a significant effect on competition. A contract, combination, or
conspiracy is an illegal restraint of trade if it constitutes a per se violation of the
statute or has as its purpose or effect an unreasonable restraint of trade. The
determination of the existence of such an illegal restraint of trade turns upon
findings of fact and involves ‘weigh[ing] all of the circumstances of a case.’ ”
(Corwin v. Los Angeles Newspaper Service Bur. (1978) 22 Cal.3d 302, 314–315
[148 Cal.Rptr. 918, 583 P.2d 777], internal citations omitted and footnotes.)
• “Under the rule of reason, the court inquires into the nature and history of the
restraint, as well as other relevant considerations.” (Reynolds v. California
Dental Service (1988) 200 Cal.App.3d 590, 596–597 [246 Cal.Rptr. 331],
internal citations omitted.)
• “The ‘rule of reason’ permits certain restraints upon trade to be found
reasonable. In order to determine whether the restrictions are reasonable, ‘the
court must ordinarily consider the facts peculiar to the business to which the
restraint is applied; its condition before and after the restraint was imposed; the
nature of the restraint and its effect, actual or probable. The history of the
restraint, the evil believed to exist, the reason for adopting the particular remedy,
the purpose or end sought to be attained, are all relevant facts.’ ‘Whether a
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restraint of trade is reasonable is a question of fact to be determined at trial.’ ”
(Kolling v. Dow Jones & Co. (1982) 137 Cal.App.3d 709, 727 [187 Cal.Rptr.
797], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
1 Antitrust Laws & Trade Regulation, Ch. 12, The Per Se Rule and the Rule of
Reason, § 12.03 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.74 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.05, 5.11, 5.17–5.22
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3412. Rule of Reason—“Market Power” Explained
Market power is the ability to increase prices or reduce output without
losing market share. The higher a seller’s market share, the more likely
it has market power.
In deciding whether a seller has market power, you should consider how
difficult it is for a potential competitor to successfully enter the market.
The more difficult it is to successfully enter a market, the more likely a
seller has market power within that market. Market power is less likely
to exist if it is not difficult for potential competitors to enter a market
successfully.
Each market has two components: a product market and a geographic
market.
New September 2003
Directions for Use
See instructions that follow explaining the concepts of product market and
geographic market: CACI Nos. 3413, Rule of Reason—“Product Market”
Explained, and 3414, Rule of Reason—“Geographic Market” Explained.
Sources and Authority
• “Proving that a restraint has anticompetitive effects often requires the plaintiff to
‘ “delineate a relevant market and show that the defendant plays enough of a
role in that market to impair competition significantly,” ’ i.e., has market power.”
(In re Cipro Cases I & II (2015) 61 Cal.4th 116, 157 [187 Cal.Rptr.3d 632, 348
P.3d 845].)
• “ ‘To meet his initial burden in establishing that the practice is an unreasonable
restraint of trade, plaintiff must show that the activity is the type that restrains
trade and that the restraint is likely to be of significant magnitude . . . .
Ordinarily, a plaintiff to do this must delineate a relevant market and show that
the defendant plays enough of a role in that market to impair competition
significantly.’ ” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 542 [30 Cal.Rptr.2d
706], internal citations omitted.)
• “As a practical matter, market power is usually equated with market share.
‘Since market power can rarely be measured directly by the methods of
litigation, it is normally inferred from possession of a substantial percentage of
the sales in a market carefully defined in terms of both product and
geography.’ ” (Redwood Theatres, Inc. v. Festival Enterprises, Inc. (1988) 200
Cal.App.3d 687, 704 [248 Cal.Rptr. 189], internal citation omitted.)
• “By reducing the substitutability of products, a high level of product
differentiation results in relative inelasticity of cross-product demand. This
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inelasticity creates opportunities for suppliers to manipulate the price and
quantity of goods sold or to entrench their market position by creating barriers to
entry in a market.” (Redwood Theatres, Inc., supra, 200 Cal.App.3d at pp.
706–707, footnote omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.74 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.05, 5.11, 5.17–5.22
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3413. Rule of Reason—“Product Market” Explained
[Name of plaintiff] claims that the product market is [insert claimed
product market, e.g., “paper clips”]. [Name of defendant] claims that the
product market is [insert claimed product market, e.g., “all paper
fasteners”].
To define the product market, you must determine which
[products/services] are in the market in which [name of defendant] is
claimed to have carried out its restraint of trade.
A product market consists of all [products/services] that can reasonably
be used for the same purpose. [Products/services] are not in the same
product market if users are not likely to substitute one for the other.
In deciding whether products are reasonable substitutes, you may
consider whether a small increase in the price of one product would
cause a considerable number of customers of that product to switch to a
second product. If so, these two products are likely to be in the same
market. If a significant increase in the price of one product does not
cause a significant number of consumers to switch to a second product,
these products are not likely to be in the same market.
New September 2003
Directions for Use
The word “services” should be substituted for “products” wherever that word
appears if the case concerns services instead of products.
In some cases, an example may be helpful to illustrate the principle of “reasonable
interchangeability,” such as the following. Of course, this example may be modified
to best suit the facts of the case.
If the price of a loaf of whole wheat bread increases by 10 or 15 cents, a
considerable number of customers may decide to purchase white bread instead.
Although these products are somewhat different, they may be reasonably
interchangeable for purposes of making toast and sandwiches. They are likely
then to be in the same relevant product market. However, the relationship
between whole wheat bread and other bread products may be different. Thus,
customers may not believe hot dog buns as quite so interchangeable. Therefore,
a 10, 15, or even 50-cent increase in the price of a loaf of wheat bread is not
likely to cause too many customers to buy hot dog buns instead. These two
products, then, are not likely to be in the same relevant market.
Sources and Authority
• “The United States Supreme Court has declared that the relevant market is
determined by considering ‘commodities reasonably interchangeable by
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consumers for the same purposes.’ Or, in other words, the relevant market is
composed of products that have reasonable interchangeability for the purpose for
which they are produced.” (Exxon Corp. v. Superior Court (1997) 51
Cal.App.4th 1672, 1682 [60 Cal.Rptr.2d 195], internal citations omitted.)
• “ ‘Defining the market is not the aim of antitrust law; it merely aids the search
for competitive injury. Once defined, the relevant market demarcates “objective
benchmarks” for separating reasonable and unreasonable restraints . . . . It
requires the claimant to demonstrate harm to the economy beyond the claimants’
own injury . . . . In so doing, market definition furthers antitrust policy: the
protection of competitive processes and not individual competitors.’ ” (Marsh v.
Anesthesia Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 496 [132
Cal.Rptr.3d 660].)
• “In antitrust law, the interchangeability of products is usually considered in the
definition of markets; the boundary of a relevant market is defined by a
significant degree of product differentiation.” (Redwood Theatres, Inc. v. Festival
Enterprises, Inc. (1988) 200 Cal.App.3d 687, 705 [248 Cal.Rptr. 189].)
• “The definition of the relevant market is a question of fact for the jury.” (Theme
Promotions, Inc. v. News Am. Mktg. FSI (9th Cir. 2008) 546 F.3d 991, 1002.)
Secondary Sources
1 Antitrust Laws & Trade Regulation, Ch. 12, The Per Se Rule and the Rule of
Reason, § 12.03 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.74 (Matthew Bender)
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3414. Rule of Reason—“Geographic Market” Explained
[Name of plaintiff] claims that the relevant geographic market is [identify
area, e.g., “the city of Los Angeles”]. [Name of defendant] claims that the
relevant geographic market is [identify area, e.g., “the state of
California”].
A geographic market is the area where buyers turn for alternate sources
of supply or where sellers normally sell. The geographic market may or
may not be the same as the area where the parties in this case currently
compete or do business. It may be smaller or larger than that area.
A geographic market may be limited to the area where a product can be
shipped and sold profitably. You may consider whether purchasing
patterns are so different in the two areas that products sold in one area
tend not to be sold in another. For example, this might occur if the cost
of transporting a product into or out of the claimed geographic market
is large compared to the value of the product.
In deciding whether products are in the same geographic market, you
may consider whether a small increase in the price of the product in one
area would cause a considerable number of customers in that area to
buy the product in another area. If so, these two areas are likely to be in
the same geographic market. If a significant increase in the price in one
area does not cause a significant number of consumers to buy the
product in another area, these areas are not likely to be in the same
geographic market.
New September 2003
Directions for Use
The word “service” should be substituted for “product” wherever that word appears
if the case concerns services rather than products.
In some cases an example may be helpful to illustrate the terms used. Regarding the
significance of price increases, an example like that given in the Directions for Use
in CACI No. 3413, Rule of Reason—“Product Market” Explained, may be adapted.
Regarding the significance of customer purchasing patterns, the following example
may suffice:
Retail customers are not likely to travel too far to buy shoes. So, a product
market defined as “shoe stores” is not likely to include shoe stores in two towns
that are 25 miles from each other. However, if the product market is for an
inventory of shoes purchased by shoe stores at wholesale, the geographic market
is likely to be nationwide, since shoe stores are likely to purchase shoes no
matter where companies distributing shoes are located.
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Regarding the significance of transporting costs, the following example may suffice:
Gravel, which is relatively cheap but heavy, and therefore relatively costly to
ship, is likely to compete in a narrower geographic market than computer
software, which, if valued by weight, is more costly per pound than gravel but
also much less costly to ship per unit. Accordingly, a geographic market defined
as a city or a region may be appropriate for assessing gravel competition, while
a nationwide, or even worldwide, geographic market may be more appropriate
for assessing the competition between software sellers.
Sources and Authority
• The “area of effective competition in the known line of commerce must be
charted by careful selection of the market area in which the seller operates, and
to which the purchaser can practicably turn for supplies.” (U.S. v. Philadelphia
National Bank (1963) 374 U.S. 321, 359 [83 S.Ct. 1715, 10 L.Ed.2d 915].)
• “The term ‘relevant market’ encompasses notions of geography as well as
product use, quality, and description. The geographic market extends to the
‘ “ ‘area of effective’ ” competition . . . where buyers can turn for alternate
sources of supply.’ ” (Oltz v. St. Peter’s Community Hospital (9th Cir. 1988) 861
F.2d 1440, 1446, internal citations omitted.)
Secondary Sources
1 Antitrust Laws & Trade Regulation, Ch. 12, The Per Se Rule and the Rule of
Reason, § 12.03 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.74 (Matthew Bender)
3415–3419. Reserved for Future Use
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3420. Tying—Real Estate, Products, or Services—Essential
Factual Elements (Bus. & Prof. Code, § 16720)
[Name of plaintiff] claims that there is an unlawful tying arrangement in
which [specify the particular real estate, product, or services] is the tying
product and [specify the particular real estate, product, or services] is the
tied product. A “tying arrangement” is the sale of one product, called the
“tying product,” in which the buyer is required or coerced to also
purchase a different, separate product, called the “tied product.” For
example, if a supermarket sells flour only if its customers also buy sugar,
that supermarket would be engaged in tying. Flour would be the tying
product and sugar the tied product.
To establish this claim against [name of defendant], [name of plaintiff]
must prove all of the following:
1. That [tying item] and [tied item] are separate and distinct;
2. That [name of defendant] will sell [tying item] only if the buyer also
purchases [tied item], or that [name of defendant] sold [tying item]
and required or otherwise coerced buyers to [also purchase [tied
item]] [agree not to purchase [tied item] from any other supplier];
3. That [name of defendant] has sufficient economic power in the
market for [tying item] to coerce at least some buyers of [tying
item] into [purchasing [tied item]] [agreeing not to purchase [tied
item] from a competitor of [name of defendant]];
4. That the conduct involves a substantial amount of sales, in terms
of the total dollar value of [tied item];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised October 2008
Directions for Use
This instruction is written for claims brought under Business and Professions Code
section 16720. A claim under this section may involve products, land, or services as
the tying item and products, land, or services as the tied item. Section 16720 applies
a stricter test for unlawful tying than does Business and Professions Code section
16727. (See CACI No. 3421, Tying—Products or Services—Essential Factual
Elements.) Therefore, if products are the tying item and products or services the tied
item, CACI No. 3421 should be used instead.
The example given in the instruction involving flour and sugar was used in two
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federal cases, Northern Pacific Railway Co. v. United States (1958) 356 U.S. 1, 5–6
[78 S.Ct. 514, 2 L.Ed.2d 545] and Jefferson Parish Hospital District No. 2 v. Hyde
(1984) 466 U.S. 2, 12 [104 S.Ct. 1551, 80 L.Ed.2d 2], but also can help explain the
Cartwright Act. The terms “product,” “sell,” and “purchase” used in this instruction
may need to be modified to reflect the facts of the particular case, since tying
arrangements challenged under Business and Professions Code section 16720 may
involve services, real property, intangibles, leases, licenses, and the like.
An unlawful tying arrangement may also be shown if the buyer agrees not to
purchase the tied product or service from any other supplier as a condition of
obtaining the tying product. If the tying claim involves such a “tie-out” agreement,
select the appropriate options in elements 2 and 3.
If the “tying product” is land and the “tied product” is a service or a commodity,
logic suggests that the first element, i.e., their distinctness, is beyond dispute and
that including this element may create confusion. In such a case, the court may
recite this element and then advise the jury that it has been established by the
plaintiff or is undisputed by the defendant. The word “parcels,” “lots,” or similar
terms should be used if both items are land, as in these cases the separateness of the
tying and tied land could be in dispute.
Sources and Authority
• “Trust” Defined. Business and Professions Code section 16720.
• “It is unlawful under California’s Cartwright Act, as relevant here, for a seller to
use its market power in one market to force or coerce a buyer to purchase its
product or service in a distinct market in which the seller does not have such
market power or to refrain from buying from the seller’s competitor. The result
of such coercion is called a tying arrangement, in which the market controlled
by the seller consists of sales of the ‘tying’ product or service, and the market
over which derivative power is exercised consists of sales of the ‘tied’ product or
service. Where such an arrangement is found, it is illegal per se; that is, the
seller’s justifications for the arrangement are not measured by a rule of
reasonableness.” (UAS Management, Inc. v. Mater Misericordiae Hospital (2008)
169 Cal.App.4th 357, 368–369 [87 Cal.Rptr.3d 81].)
• “Antitrust laws against tying arrangements seek to eradicate the evils that (1)
competitors are denied free access to the market for the tied product not because
the seller imposing the tying requirement has a better or less expensive tied
product, but because of the seller’s power or leverage in the market for the tying
product; and (2) buyers are forced to forego their free choice between competing
tied products. Tying arrangements are illegal per se ‘whenever a party has
sufficient economic power with respect to the tying product to appreciably
restrain free competition in the market for the tied product’ and when ‘a total
amount of business, substantial enough in terms of dollar-volume so as not to be
merely de minimis, is foreclosed to competitors by the tie.’ ” (Freeman v. San
Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 184 [91 Cal.Rptr.2d 534],
internal citations omitted.)
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• “Even when not per se illegal, a tying arrangement violates the Cartwright Act if
it unreasonably restrains trade.” (Morrison v. Viacom, Inc. (1997) 52 Cal.App.4th
1514, 1524 [61 Cal.Rptr.2d 544], internal citations omitted.)
• “The threshold element for a tying claim is the existence of separate products or
services in separate markets. Absent separate products in separate markets, the
alleged tying and tied products are in reality a single product.” (Freeman, supra,
77 Cal.App.4th at p. 184, internal citations omitted.)
• “Plaintiff alleged the conspiratorial agreement among defendants constituted an
illegal tying arrangement per se pursuant to Business and Professions Code
section 16720. ‘The elements of a per se tying arrangement violative of section
16720 are: “(1) a tying agreement, arrangement or condition existed whereby the
sale of the tying product was linked to the sale of the tied product or service; (2)
the party had sufficient economic power in the tying market to coerce the
purchase of the tied product; (3) a substantial amount of sale was affected in the
tied product; and (4) the complaining party sustained pecuniary loss as a
consequence of the unlawful act.” ’ ” (SC Manufactured Homes, Inc. v. Liebert
(2008) 162 Cal.App.4th 68, 86 [76 Cal.Rptr.3d 73], footnotes and internal
citations omitted.)
• “ ‘ “[T]ying agreements serve hardly any purpose beyond the suppression of
competition.” They deny competitors free access to the market for the tied
product, not because the party imposing the tying requirements has a better
product or a lower price but because of his power or leverage in another market.
At the same time buyers are forced to forego their free choice between
competing products. For these reasons “tying agreements fare harshly under the
laws forbidding restraints of trade.” ’ ” (Suburban Mobile Homes v. AMFAC
Communities (1980) 101 Cal.App.3d 532, 542 [161 Cal.Rptr. 811], internal
citations omitted.)
• “[T]he burden of proving an illegal tying arrangement differs somewhat under
section 16720 and section 16727. Under section 16727 the plaintiff must
establish that the tie-in substantially lessens competition. This standard is met if
either the seller enjoys sufficient economic power in the tying product to
appreciably restrain competition in the tied product or if a not insubstantial
volume of commerce in the tied product is restrained. Under section 16720
standard, both conditions must be met.” (Suburban Mobile Homes, supra, 101
Cal.App.3d at p. 549, internal citation omitted.)
• “The alleged antitrust violation need not be the sole or controlling cause of the
injury in order to establish proximate cause, but only need be a substantial factor
in bringing about the injury.” (Saxer v. Philip Morris, Inc. (1975) 54 Cal.App.3d
7, 23 [126 Cal.Rptr. 327], internal citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.04 (Matthew
Bender)
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3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[4] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.09[4], 5.15, 5.81, 5.82
595
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3421. Tying—Products or Services—Essential Factual Elements
(Bus. & Prof. Code, § 16727)
[Name of plaintiff] claims that there is an unlawful tying arrangement in
which [specify the particular product] is the tying product and [specify the
particular product or services] is the tied product. A “tying arrangement”
is the sale of one product, called the “tying product,” where the buyer is
required or coerced to also purchase a different, separate product, called
the “tied product.” For example, if a supermarket sells flour only if its
customers also buy sugar, that supermarket would be engaged in tying.
Flour would be the tying product and sugar the tied product.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [tying product] and [tied product or service] are separate and
distinct;
2. That [name of defendant] will sell [tying product] only if the buyer
also purchases [tied product or service], or that [name of defendant]
sold [tying product] and required or otherwise coerced buyers to
[also purchase [tied product or service]] [agree not to purchase
[tied product or service] from any other supplier];
3. That [insert one or both of the following]:
3. [[name of defendant] has sufficient economic power in the market
for [tying product] to coerce at least some consumers into
purchasing [tied product or service];] [or]
3. [the claimed tying arrangement has restrained competition for a
substantial amount of sales, in terms of total dollar volume of
[tied product or service]];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Directions for Use
This instruction applies to claims under Business and Professions Code section
16727, which applies only where the tying product consists of “goods, merchandise,
machinery, supplies, [or] commodities” and the tied product consists of “goods,
merchandise, supplies, commodities, or services.” Section 16727 does not apply if
the tying product is land or services, nor does it apply if the tied product is land.
The example given was used in two federal cases, Northern Pacific Railway Co. v.
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United States (1958) 356 U.S. 1, 5–6 [78 S.Ct. 514, 2 L.Ed.2d 545] and Jefferson
Parish Hospital District No. 2 v. Hyde (1984) 466 U.S. 2, 12 [104 S.Ct. 1551, 80
L.Ed.2d 2], but also can help explain the Cartwright Act. The terms “product,”
“sell,” and “purchase” used in this instruction may need to be modified to reflect the
facts of the particular case, since tying arrangements challenged under Business and
Professions Code section 16720 may involve services, real property, intangibles,
leases, licenses, and the like.
Also, an unlawful tying arrangement may be shown where the buyer agrees not to
purchase the tied product or service from any other supplier as a condition of
obtaining the tying product. If the tying claim involves such a “tie-out” agreement,
this instruction must be modified accordingly.
Sources and Authority
• Covenants Prohibiting Dealing With Competitors Unlawful. Business and
Professions Code section 16727.
• “It is unlawful under California’s Cartwright Act, as relevant here, for a seller to
use its market power in one market to force or coerce a buyer to purchase its
product or service in a distinct market in which the seller does not have such
market power or to refrain from buying from the seller’s competitor. The result
of such coercion is called a tying arrangement, in which the market controlled
by the seller consists of sales of the ‘tying’ product or service, and the market
over which derivative power is exercised consists of sales of the ‘tied’ product or
service. Where such an arrangement is found, it is illegal per se; that is, the
seller’s justifications for the arrangement are not measured by a rule of
reasonableness.” (UAS Management, Inc. v. Mater Misericordiae Hospital (2008)
169 Cal.App.4th 357, 368–369 [87 Cal.Rptr.3d 81].)
• “[T]he specific elements of an unlawful tying cause of action have been stated as
follows: ‘(1) a tying agreement, arrangement or condition . . . whereby the sale
of the tying product [or service] was linked to the sale of the tied product or
service; (2) the party had sufficient economic power in the tying market to
coerce the purchase of the tied product; (3) a substantial amount of sale was
effected in the tied product; and (4) the complaining party sustained pecuniary
loss as a consequence of the unlawful act.’ ” (UAS Management, Inc., supra, 169
Cal.App.4th at p. 369, internal citation omitted.)
• “[T]he burden of proving an illegal tying arrangement differs somewhat under
section 16720 and section 16727. Under section 16727 the plaintiff must
establish that the tie-in substantially lessens competition. This standard is met if
either the seller enjoys sufficient economic power in the tying product to
appreciably restrain competition in the tied product or if a not insubstantial
volume of commerce in the tied product is restrained. Under the section 16720
standard, both conditions must be met.” (Suburban Mobile Homes v. AMFAC
Communities (1980) 101 Cal.App.3d 532, 549 [161 Cal.Rptr. 811], internal
citation omitted.)
• “Case law construing Business and Professions Code section 16727 defines a
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tying arrangement as ‘an agreement by a party to sell one product but only on
the condition that the buyer also purchases a different (or tied) product, or at
least agrees that he will not purchase that product from any other supplier.’
Tying arrangements are illegal per se if the party has sufficient economic power
and substantially forecloses competition in the relevant market. Even when not
per se illegal, a tying arrangement violates the Cartwright Act if it unreasonably
restrains trade.” (Morrison v. Viacom, Inc. (1997) 52 Cal.App.4th 1514, 1524 [61
Cal.Rptr.2d 544], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.04 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[4] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.09[4], 5.15, 5.81, 5.82
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3422. Tying—“Separate Products” Explained
In deciding whether [tying product or service] and [tied product or service]
are separate and distinct, you should consider, among other factors, the
following:
(a) Whether competitors offer to sell [tied product or service]
separately from [tying product or service] or only as a unit;
(b) Whether the combined product is composed of varying
assortments of component parts;
(c) Whether buyers are or can be charged separately for the
[products/services]; and
(d) Whether [name of defendant] ever sells or offers to sell [tied
product or service] separate from [tying product or service].
Not all of these factors need be present in order for you to conclude that
[tying product or service] and [tied product or service] are separate and
distinct [products or services, etc.].
New September 2003
Directions for Use
If an example is thought to be in order, users may wish to consider the following:
For example, even though belt buckles are sometimes sold separately from belts,
a belt buckle is normally considered a component of a belt. Therefore, a belt
and buckle would normally be considered one product under the law in this
case. On the other hand, while belts and wallets are sometimes packaged and
sold together, they are not normally considered components of a single product
and are normally purchased separately. Therefore, belts and wallets would
normally be considered two separate products under the law in this case.
Sources and Authority
• “Although we have not found . . . any definitive test for the determination of
this question, the following factors should be taken into account: (1) Whether
competitors offer to sell the products or services separately or only as a unit. (2)
Whether the combined product or service is composed of varying assortments of
component parts. (3) Whether buyers are or can be charged separately for the
allegedly separate products or services. (4) Whether the defendant ever sells or
offers to sell the products or services separately.” (Corwin v. Los Angeles
Newspaper Services Bur. (1971) 4 Cal.3d 842, 858–859 [94 Cal.Rptr. 785, 484
P.2d 953], internal citations omitted.)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.04 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[4] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.09[4], 5.15, 5.81, 5.82
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3423. Tying—“Economic Power” Explained
In determining whether [name of defendant] has sufficient economic
power in the market for [tying item], you may consider whether [name of
defendant] has such a large share of the market for [tying item] that
buyers do not have alternate sources of [tying item] or a reasonably
available substitute. If [name of defendant] has economic power, it may be
established even though it exists with respect to some, but not all,
buyers.
You may also consider whether a buyer would be unable to easily locate
a similar or equally desirable product in the marketplace. If buyers do
not generally consider other products to be substitutes, this fact may give
[name of defendant] economic power over its [tied item]. The fact that
[name of defendant] can produce [tying item] in an efficient manner or at
a high level of quality does not, by itself, mean that competitors do not
offer a similar product.
New September 2003
Directions for Use
This instruction assumes that the plaintiff is seeking relief under Business and
Professions Code section 16720. If the plaintiff is instead seeking relief under
Business and Professions Code section 16727, this element is not required, so long
as the plaintiff proves that the claimed tie-in affected a “not insubstantial amount” of
sales of the tied product. If that proof is note summarily established or agreed to,
then this instruction also must be read in such cases.
Sources and Authority
• “[W]e emphasize that the power over the tying product . . . can be sufficient
even though the power falls short of dominance and even though the power
exists only with respect to some buyers in the market. As the cases unanimously
underline, such crucial economic power may be inferred from the tying product’s
desirability to consumers or from uniqueness in its attributes.” (Suburban Mobile
Homes v. AMFAC Communities (1980) 101 Cal.App.3d 532, 544 [161 Cal.Rptr.
811], internal citations omitted.)
• “Decisions of the United States Supreme Court ‘have made unmistakably clear
that the economic power over the tying product can be sufficient even though the
power falls far short of dominance and even though the power exists only with
respect to some of the buyers in the market.’ ” (Corwin v. Los Angeles
Newspaper Services Bur. (1971) 4 Cal.3d 842, 858 [94 Cal.Rptr. 785, 484 P.2d
953], internal citation omitted.)
• “Tying arrangements are illegal per se ‘whenever a party has sufficient economic
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power with respect to the tying product to appreciably restrain free competition
in the market for the tied product’ and when ‘a total amount of business,
substantial enough in terms of dollar-volume so as not to be merely de minimis,
is foreclosed to competitors by the tie.’ ” (Freeman v. San Diego Assn. of
Realtors (1999) 77 Cal.App.4th 171, 184 [91 Cal.Rptr.2d 534], internal citations
omitted.)
• “To plead this element, appellants must allege facts to show that ‘a total amount
of business, substantial enough in terms of dollar-volume so as not to be merely
de minimis, is foreclosed to competitors by the tie.’ ” (Morrison v. Viacom, Inc.
(1998) 66 Cal.App.4th 534, 542 [78 Cal.Rptr.2d 133], internal citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.04 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.168[4] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.77 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.09[4], 5.15, 5.81, 5.82
3424–3429. Reserved for Future Use
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3430. “Noerr-Pennington” Doctrine
[Name of defendant] claims that [his/her/nonbinary pronoun/its] agreement
with [name of alleged coparticipant] did not violate the law because [he/
she/nonbinary pronoun/it] was trying in good faith to influence
government action. [Name of plaintiff] claims that this action was a sham
or a pretext to restrain competition.
To establish [his/her/nonbinary pronoun/its] claim, [name of plaintiff] must
prove both of the following:
1. That [name of defendant]’s actions before [name of governmental
body] were undertaken without regard to the merits; and
2. That the reason [name of defendant] engaged in [specify the
petitioning activity, e.g., “filing an objection to an environmental
impact report”] was to use the [specify the claimed process, e.g.,
“environmental agency approval”] process to harm [name of
plaintiff] by [specify the manner of harm, e.g., “delaying [name of
plaintiff]’s entry into the market”], rather than to obtain a
successful outcome from that process.
New September 2003
Sources and Authority
• “The Noerr-Pennington doctrine provides that there is no antitrust liability under
the Sherman Act for efforts to influence government which are protected by the
First Amendment right to petition for redress of grievances, even if the motive
behind the efforts is anticompetitive.” (Hernandez v. Amcord, Inc. (2013) 215
Cal.App.4th 659, 678 [156 Cal.Rptr.3d 90].)
• “The Noerr-Pennington doctrine immunizes legitimate efforts to influence a
branch of government from virtually all forms of civil liability. The doctrine
originated in the context of federal antitrust litigation. Stated generally, it was
initially intended to ensure that ‘efforts to influence government action are not
within the scope of the Sherman Act, regardless of anticompetitive purpose or
effect. [Citations.]’ The Noerr-Pennington doctrine is reinforced by two
constitutional considerations: ‘the First Amendment right to petition the
government . . . and comity, i.e., noninterference on the part of the courts with
governmental bodies that may validly cause otherwise anticompetitive effects
and with efforts intended to influence such bodies [citations].’ ” (People ex rel.
Harris v. Aguayo (2017) 11 Cal.App.5th 1150, 1160–1161 [218 Cal.Rptr.3d 221],
internal citations omitted.)
• “Stated most generally, the Noerr-Pennington doctrine declares that efforts to
influence government action are not within the scope of the Sherman Act,
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regardless of anticompetitive purpose or effect.” (Blank v. Kirwan (1985) 39
Cal.3d 311, 320 [216 Cal.Rptr. 718, 703 P.2d 58], internal citations omitted.)
• “ ‘The right of the people to inform their representatives in government of their
desires with respect to the passage or enforcement of laws cannot properly be
made to depend upon their intent in doing so. It is neither unusual nor illegal for
people to seek action on laws in the hope that they may bring about an
advantage to themselves and a disadvantage to their competitors.’ ” (Hi-Top Steel
Corp. v. Lehrer (1994) 24 Cal.App.4th 570, 576 [29 Cal.Rptr.2d 646], internal
citations omitted.)
• “[B]ecause Noerr-Pennington protects federal constitutional rights, it applies in
all contexts, even where a state law doctrine advances a similar goal.” (Theme
Promotions, Inc. v. News Am. Mktg. FSI (9th Cir. 2008) 546 F.3d 991, 1007.)
• “While the Noerr-Pennington doctrine was ‘formulated in the context of antitrust
cases,’ it has been applied in cases involving other types of civil liability,
including liability for interference with contractual relations or prospective
economic advantage or unfair competition.” (Hernandez, supra, 215 Cal.App.4th
at p. 679, internal citations omitted.)
• “The Noerr-Pennington doctrine has been extended to preclude virtually all civil
liability for a defendant’s petitioning activities before not just courts, but also
before administrative and other governmental agencies.” (People ex rel. Harris,
supra, 11 Cal.App.5th at p. 1161.)
• “An exception to the doctrine arises when efforts to influence government are
merely a sham; such efforts are not protected by the Noerr-Pennington doctrine
and are subject to antitrust liability.” (Hi-Top Steel Corp., supra, 24 Cal.App.4th
at pp. 574–575, internal citations omitted.)
• “Efforts to influence governmental agencies ‘ “amount to a sham when though
‘ostensibly directed toward influencing governmental action, . . . [they are]
actually nothing more than an attempt to interfere directly with the business
relationships of a competitor . . . .” [Citation.]’ ” (People ex rel. Harris, supra,
11 Cal.App.5th at p. 1161.)
• “[T]he sham exception ‘encompasses situations in which persons use the
governmental process—as opposed to the outcome of that process—as an
anticompetitive weapon.’ It ‘involves a defendant whose activities are “not
genuinely aimed at procuring favorable government action” at all, not one “who
‘genuinely seeks to achieve his governmental result, but does so through
improper means.’ ” ’ ” (Hi-Top Steel Corp., supra, 24 Cal.App.4th at p. 577,
internal citations omitted.)
• “[W]e hold the sham exception to the Noerr-Pennington doctrine is applicable in
California.” (Hi-Top Steel Corp., supra, 24 Cal.App.4th at p. 579.)
• “[W]e identified three circumstances in which the sham litigation exception
might apply: first, where the lawsuit is objectively baseless and the defendant’s
motive in bringing it was unlawful; second, where the conduct involves a series
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of lawsuits ‘brought pursuant to a policy of starting legal proceedings without
regard to the merits’ and for an unlawful purpose; and third, if the allegedly
unlawful conduct ‘consists of making intentional misrepresentations to the court,
litigation can be deemed a sham if ‘a party’s knowing fraud upon, or its
intentional misrepresentations to, the court deprive the litigation of its
legitimacy.’ ” (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 938, internal
citations omitted.)
• “The United States Supreme Court has set forth a two-part test for determining
whether a defendant’s petitioning activities fall within the so-called ‘sham
exception’ to the Noerr-Pennington doctrine: ‘first, it “must be objectively
baseless in the sense that no reasonable litigant could realistically expect success
on the merits”; second, the litigant’s subjective motivation must “conceal an
attempt to interfere directly with the business relationships of a competitor . . .
through the use [of] the governmental process—as opposed to the outcome of
that process—as an anticompetitive weapon.” [Citation.]’ ” (People ex rel.
Harris, supra, 11 Cal.App.5th at p. 1161, original italics.)
• “Even though [plaintiff] must ultimately prove the existence of a ‘sham’ by clear
and convincing evidence, it need only show that there is a genuine issue of
material fact to avoid summary judgment.” (Kaiser Found. Health Plan, Inc. v.
Abbott Labs, Inc. (9th Cir. 2009) 552 F.3d 1033, 1044.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 607
6 Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.10[1][h] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.164[5][a] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.73 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.41
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3431. Affirmative Defense—In Pari Delicto
[Name of defendant] claims that [name of plaintiff] may not recover
because [name of plaintiff] is equally responsible for the harmful conduct.
To succeed, [name of defendant] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] have substantially
equal economic strength;
2. That [name of plaintiff] is at least equally responsible for the
harmful conduct as [name of defendant]; and
3. That [name of plaintiff] was not compelled by economic pressure
to engage in the harmful conduct.
New September 2003
Sources and Authority
• “Cases . . . have declared that if a plaintiff does not bear equal responsibility for
establishing the illegal scheme, or if he is compelled by economic pressures to
accept such an agreement, he cannot be barred from recovering because he
participated therein.” (Mailand v. Burckle (1978) 20 Cal.3d 367, 381 [143
Cal.Rptr. 1, 572 P.2d 1142], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 602–621
8 Antitrust Laws & Trade Regulation, Ch. 164, Pleadings in Antitrust Actions,
§ 164.05[2][b] (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.91
3432–3439. Reserved for Future Use
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3440. Damages
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
The amount of damages must include an award for all harm that was
caused by [name of defendant], even if the particular harm could not have
been anticipated.
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. [Loss of reasonably anticipated sales and profits];
2. [An increase in [name of plaintiff]’s expenses];
3. [Insert other applicable item of damage].
New September 2003
Sources and Authority
• Private Right of Action for Antitrust Violation. Business and Professions Code
section 16750(a).
• “The plaintiff in a Cartwright Act proceeding must show that an antitrust
violation was the proximate cause of his injuries. The frequently stated ‘standing
to sue’ requirement is merely a rule that an action for violation of the antitrust
laws may be maintained only by a party within the ‘target area’ of the antitrust
violation, and not by one incidentally injured thereby. An ‘antitrust injury’ must
be proved; that is, the type of injury the antitrust laws were intended to prevent,
and which flows from the invidious conduct which renders defendants’ acts
unlawful. Finally, a plaintiff must show an injury within the area of the economy
that is endangered by a breakdown of competitive conditions.” (Kolling v. Dow
Jones & Co. (1982) 137 Cal.App.3d 709, 723–724 [187 Cal.Rptr. 797], internal
citations and footnote omitted.)
• “ ‘[D]amage issues in these cases are rarely susceptible of the kind of concrete,
detailed proof of injury which is available in other contexts . . . . [I]n the
absence of more precise proof, the factfinder may “conclude as a matter of just
and reasonable inference from the proof of defendants’ wrongful acts and their
tendency to injure plaintiffs’ business, and from the evidence of the decline in
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prices, profits and values, not shown to be attributable to other causes, that
defendants’ wrongful acts had caused damage to the plaintiffs.” ’ ” (Diesel Elec.
Sales and Serv., Inc. v. Marco Marine San Diego, Inc. (1993) 16 Cal.App.4th
202, 219–220 [20 Cal.Rptr.2d 62], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 615
6 Antitrust Laws and Trade Regulation, Ch. 105, California, § 105.09 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.172 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.34[3] (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.45, 5.48–5.50, 5.66[5], 5.67–5.75
3441–3499. Reserved for Future Use
608
Copyright Judicial Council of California
VF-3400. Horizontal and Vertical Restraints (Use for Direct
Competitors)—Price Fixing
We answer the questions submitted to us as follows:
1. Did [name of defendant] [and [name(s) of alleged coparticipant(s)]]
agree to fix [or] [set/raise/lower/maintain/stabilize] prices [or
other terms of trade] charged or to be charged for
[product/service]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3400, Horizontal and Vertical Restraints
(Use for Direct Competitors)—Price Fixing—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
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Copyright Judicial Council of California
VF-3400 CARTWRIGHT ACT
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
610
Copyright Judicial Council of California
VF-3401. Horizontal Restraints (Use for Direct
Competitors)—Allocation of Trade or Commerce
We answer the questions submitted to us as follows:
1. Were or are [name of defendant] and [name of alleged
coparticipant] competitors in the same or related markets?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] and [name of alleged coparticipant] agree
to allocate or divide [customers/territories/products]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant]’s and [name of alleged coparticipant]’s
conduct a substantial factor in causing harm to [name of
plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3401, Horizontal Restraints (Use for Direct
Competitors)—Allocation of Trade or Commerce—Essential Factual Elements.
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Copyright Judicial Council of California
VF-3401 CARTWRIGHT ACT
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
612
Copyright Judicial Council of California
VF-3402. Horizontal Restraints (Use for Direct
Competitors)—Allocation of Trade or Commerce—Affirmative
Defense—In Pari Delicto
We answer the questions submitted to us as follows:
1. Were or are [name of defendant] and [name of alleged
coparticipant] competitors in the same or related markets?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] and [name of alleged coparticipant] agree
to allocate or divide [customers/territories/products]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] and [name of defendant] have substantially
equal economic strength?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, skip questions 4 and 5 and answer question 6.
4. Was [name of plaintiff] at least equally responsible for the harmful
conduct as [name of defendant]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, skip question 5 and answer question 6.
5. Was [name of plaintiff] compelled by economic pressure to enter
into the agreement?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
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VF-3402 CARTWRIGHT ACT
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3401, Horizontal Restraints (Use for Direct
Competitors)—Allocation of Trade or Commerce—Essential Factual Elements, and
CACI No. 3431, Affırmative Defense—In Pari Delicto.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-3403. Horizontal Restraints—Dual Distributor Restraints
We answer the questions submitted to us as follows:
1. Did [name of defendant] sell [products] directly in competition with
[name of plaintiff] to a significant portion of [name of plaintiff]’s
customers or potential customers?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] [stop doing business with/refuse to deal
with/restrain] [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff]’s refusal to agree to [name of defendant]’s
[specify the claimed restraint, e.g., territorial or customer
restrictions] a motivating reason for the decision to [end business
with/refuse to deal with/restrain] [name of plaintiff]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
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Copyright Judicial Council of California
VF-3403 CARTWRIGHT ACT
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3402, Horizontal Restraints—Dual
Distributor Restraints—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
616
Copyright Judicial Council of California
VF-3404. Horizontal Restraints (Use for Direct
Competitors)—Group Boycott—Per Se Violation
We answer the questions submitted to us as follows:
1. Did [name of defendant] [and [name of alleged coparticipant]] agree
to [specify claimed refusal to deal, e.g., “refuse to sell to [name of
plaintiff]”]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3403, Horizontal Restraints (Use for Direct
Competitors)—Group Boycott—Per Se Violation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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VF-3404 CARTWRIGHT ACT
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
618
Copyright Judicial Council of California
VF-3405. Horizontal Restraints—Group Boycott—Rule of Reason
We answer the questions submitted to us as follows:
1. Did [name of defendant] [and [name of alleged coparticipant]] agree
to [describe conduct, e.g., “formulate an arbitrary membership
limitation rule with [identify other participant[s]]”]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the purpose or effect of [name of defendant]’s conduct to
restrain competition?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the anticompetitive effect of the restraint[s] outweigh any
beneficial effect on competition?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
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VF-3405 CARTWRIGHT ACT
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3404, Horizontal Restraints—Group
Boycott—Rule of Reason—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
620
Copyright Judicial Council of California
VF-3406. Horizontal and Vertical Restraints (Use for Direct
Competitors or Supplier/Reseller Relations)—Other Unreasonable
Restraint of Trade—Rule of Reason
We answer the questions submitted to us as follows:
1. Did [name of defendant] [and [name of alleged coparticipant[s]]]
agree to [describe conduct constituting an unreasonable restraint of
trade]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was the purpose or effect of [name of defendant]’s conduct to
restrain competition?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did the anticompetitive effect of the restraint[s] outweigh any
beneficial effect on competition?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
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VF-3406 CARTWRIGHT ACT
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3405, Horizontal and Vertical Restraints
(Use for Direct Competitors or Supplier/Reseller Relations)—Other Unreasonable
Restraint of Trade—Rule of Reason—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
622
Copyright Judicial Council of California
VF-3407. Horizontal and Vertical Restraints (Use for Direct
Competitors or Supplier/Reseller Relations)—Other Unreasonable
Restraint of Trade—Rule of Reason Affirmative Defense—“Noerr-
Pennington” Doctrine
We answer the questions submitted to us as follows:
1. Did [name of defendant] [and [name of alleged coparticipant]] agree
to [describe conduct constituting an unreasonable restraint of trade]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Were [name of defendant]’s actions before [name of governmental
body] undertaken without regard to the merits?
2. Yes No
2. If your answer to question 2 is yes, then skip question 3 and
answer question 4. If you answered no, answer question 3.
3. Was the reason [name of defendant] engaged in [specify the
petitioning activity, e.g., “filing an objection to an environmental
impact report”] to use the [specify the claimed process, e.g.,
“environmental agency approval”] process to harm [name of
plaintiff] by [specify the manner of harm, e.g., “delaying [name of
plaintiff]’s entry into the market”], rather than to obtain a
successful outcome from that process?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was the purpose or effect of [name of defendant]’s conduct to
restrain competition?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did the anticompetitive effect of the restraint[s] outweigh any
beneficial effect on competition?
5. Yes No
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VF-3407 CARTWRIGHT ACT
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3405, Horizontal and Vertical Restraints
(Use for Direct Competitors or Supplier/Reseller Relations)—Other Unreasonable
Restraint of Trade—Rule of Reason—Essential Factual Elements, and CACI No.
3430, “Noerr-Pennington” Doctrine.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-3408. Tying—Real Estate, Products, or Services (Bus. & Prof.
Code, § 16720)
We answer the questions submitted to us as follows:
1. Are [tying item] and [tied item] separate and distinct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] sell [tying item] only if the buyer also
purchased [tied item], or did [name of defendant] sell [tying item]
and require or otherwise coerce buyers to [also purchase [tied
item]] [agree not to purchase [tied item] from any other supplier]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of defendant] have sufficient economic power in the
market for [tying item] to coerce at least some buyers of [tying
item] into [purchasing [tied item]] [agreeing not to purchase [tied
item] from a competitor of [name of defendant]]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did the conduct involve a substantial amount of sales, in terms of
the total dollar value of [tied product or service]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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VF-3408 CARTWRIGHT ACT
6. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3420, Tying—Real Estate, Products, or
Services—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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Copyright Judicial Council of California
VF-3409. Tying—Products or Services (Bus. & Prof. Code,
§ 16727)
We answer the questions submitted to us as follows:
1. Are [tying item] and [tied product or service] separate and distinct?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] sell [tying product] only if the buyer also
purchased [tied product or service], or did [name of defendant] sell
[tying product] and require or otherwise coerce buyers [to also
purchase [tied product or service]] [to agree not to purchase [tied
product or service] from any other supplier]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Does [name of defendant] have sufficient economic power in the
market for [tying product] to coerce at least some consumers into
purchasing [tied product or service]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
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VF-3409 CARTWRIGHT ACT
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3421, Tying-Products or
Services—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If alterative grounds are asserted regarding question 3, this question can be modified
according to element 3 of CACI No. 3421.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3410–VF-3499. Reserved for Future Use
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EMINENT DOMAIN
3500. Introductory Instruction
3501. “Fair Market Value” Explained
3502. “Highest and Best Use” Explained
3503. Change in Zoning or Land Use Restriction
3504. Project Enhanced Value
3505. Information Discovered after Date of Valuation
3506. Effect of Improvements
3507. Personal Property and Inventory
3508. Bonus Value of Leasehold Interest
3509A. Precondemnation Damages—Unreasonable Delay (Klopping Damages)
3509B. Precondemnation Damages—Public Entity’s Authorized Entry to
Investigate Property’s Suitability (Code Civ. Proc., § 1245.060)
3510. Value of Easement
3511A. Severance Damages to Remainder (Code Civ. Proc., §§ 1263.410,
1263.420(a))
3511B. Damage to Remainder During Construction (Code Civ. Proc.,
§ 1263.420(b))
3512. Severance Damages—Offset for Benefits
3513. Goodwill
3514. Burden of Proof
3515. Valuation Testimony
3516. View
3517. Comparable Sales (Evid. Code, § 816)
3518–3599. Reserved for Future Use
VF-3500. Fair Market Value Plus Goodwill
VF-3501. Fair Market Value Plus Severance Damages
VF-3502. Fair Market Value Plus Loss of Inventory/Personal Property
VF-3503–VF-3599. Reserved for Future Use
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3500. Introductory Instruction
Public agencies such as the [name of condemnor] have the right to take
private property for public use if they pay the owner just compensation.
New September 2003
Sources and Authority
• Constitutional Right of Eminent Domain. Article I, section 19, of the California
Constitution.
• Just Compensation. The Fifth Amendment of the U.S. Constitution.
• Acquisition of Property for Public Use. Code of Civil Procedure section
1240.010.
• “The power of eminent domain arises as an inherent attribute of sovereignty that
is necessary for government to exist. Properly exercised, the eminent domain
power effects a compromise between the public good for which private land is
taken, and the protection and indemnification of private citizens whose property
is taken to advance that public good. The Fifth Amendment of the United States
Constitution, made applicable to the states by the Fourteenth Amendment, and
California Constitution, article I, section 19 require this protection of private
citizens’ property.” (Burbank-Glendale-Pasadena Airport Authority v. Hensler
(2000) 83 Cal.App.4th 556, 561 [99 Cal.Rptr.2d 729], internal citation omitted.)
• “Our Constitution thus guarantees landowners the right to have a jury determine
the amount of just compensation owed for a taking.” (City of Perris v. Stamper
(2016) 1 Cal.5th 576, 593 [205 Cal.Rptr.3d 797, 376 P.3d 1221].)
• “This ‘just compensation’ clause in the California Constitution applies to the
state’s exercise of its eminent domain power, constraining it by requiring that
when the state takes private property for public use, the private property owner
is justly compensated.” (City of Oroville v. Superior Court (2019) 7 Cal.5th
1091, 1102 [250 Cal.Rptr.3d 803, 446 P.3d 304].)
• “ ‘An inverse condemnation action is an eminent domain proceeding initiated by
the property owner rather than the condemner. The principles which affect the
parties’ rights in an inverse condemnation suit are the same as those in an
eminent domain action.’ ” (Customer Co. v. City of Sacramento (1995) 10
Cal.4th 368, 377, fn. 4 [41 Cal.Rptr.2d 658, 895 P.2d 900], internal citations
omitted.)
• “The principle sought to be achieved by this concept ‘is to reimburse the owner
for the property interest taken and to place the owner in as good a position
pecuniarily as if the property had not been taken.’ ” (Redevelopment Agency of
the City of Long Beach v. First Christian Church of Long Beach (1983) 140
Cal.App.3d 690, 705 [189 Cal.Rptr. 749], internal citation omitted, disapproved
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on other grounds in Los Angeles County Metropolitan Transportation Authority
v. Continental Development Corp. (1997) 16 Cal.4th 694, 720–721 [66
Cal.Rptr.2d 630, 941 P.2d 809].)
• “We have long held that this jury right applies only to determining the
appropriate amount of compensation, not to any other issues that arise in the
course of condemnation proceedings.” (City of Perris, supra, 1 Cal.5th at p.
593.)
• “Although the measure of compensation that is ‘just’ for purposes of both the
federal and state takings clause is often determined by the ‘fair market value’ of
what has been lost, both federal and state takings cases uniformly recognize that
the fair market value standard is not applicable in all circumstances and that
there is no rigid or fixed standard that is appropriate in all settings.” (Property
Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 203−204 [204 Cal.Rptr.3d
770, 375 P.3d 887].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1360,
1367
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 4.1
1 Nichols on Eminent Domain, Ch. 1, The Nature, Origin, Evolution and
Characteristics of the Power, §§ 1.1, 1.11 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.12 (Matthew Bender)
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3501. “Fair Market Value” Explained
Just compensation includes the fair market value of the property as of
[insert date of valuation]. Fair market value is the highest price for the
property that a willing buyer would have paid in cash to a willing seller,
assuming that:
1. There is no pressure on either one to buy or sell; and
2. The buyer and seller know all the uses and purposes for which
the property is reasonably capable of being used.
New September 2003; Revised June 2015
Directions for Use
Do not give this instruction if there is no relevant market for the property. Instead,
instruct on the appropriate alternative method of valuation.
The jury determines the fair market value of the property based on the highest and
best use for which the property is geographically and economically adaptable. (See
San Diego Gas & Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1288 [175
Cal.Rptr.3d 858].) If the highest and best use is disputed, give CACI No. 3502,
“Highest and Best Use” Explained.
Sources and Authority
• “Fair Market Value” Defined. Code of Civil Procedure section 1263.320.
• Property With No Relevant Market. Evidence Code section 823.
• “The measure of compensation in a condemnation case ‘is the fair market value
of the property taken.’ ‘The fair market value of the property taken is the highest
price on the date of valuation that would be agreed to by a seller, being willing
to sell but under no particular or urgent necessity for so doing, nor obliged to
sell, and a buyer, being ready, willing, and able to buy but under no particular
necessity for so doing, each dealing with the other with full knowledge of all the
uses and purposes for which the property is reasonably adaptable and
available.’ ‘A jury should consider all those factors, including lawful legislative
and administrative restrictions on property, which a buyer would take into
consideration in arriving at the fair market value.’ ” (City of Perris v. Stamper
(2016) 1 Cal.5th 576, 598−599 [205 Cal.Rptr.3d 797, 376 P.3d 1221].)
• “ ‘Market value,’ in turn, traditionally has been defined as ‘the highest price
estimated in terms of money which the land would bring if exposed for sale in
the open market, with reasonable time allowed in which to find a purchaser,
buying with knowledge of all of the uses and purposes to which it was adapted
and for which it was capable.’ ” (Klopping v. City of Whittier (1972) 8 Cal.3d
39, 43 [104 Cal.Rptr. 1, 500 P.2d 1345], internal citation omitted.)
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• “Recognized alternatives to the market data approach to valuation are
reproduction or replacement costs less depreciation or obsolescence.”
(Redevelopment Agency of the City of Long Beach v. First Christian Church of
Long Beach (1983) 140 Cal.App.3d 690, 698 [189 Cal.Rptr. 749], internal
citation omitted, disapproved on other grounds in Los Angeles County
Metropolitan Transportation Authority v. Continental Development Corp. (1997)
16 Cal.4th 694, 720–721 [66 Cal.Rptr.2d 630, 941 P.2d 809].)
• Alternative methods of valuation particularly apply to properties such as schools,
churches, cemeteries, parks, and utilities for which there is no relevant market;
therefore these properties may be valued on any basis that is just and equitable.
(County of San Diego v. Rancho Vista Del Mar, Inc. (1993) 16 Cal.App.4th
1046, 1060 [20 Cal.Rptr.2d 675].)
• “However, when there is ‘a market for this property in the private marketplace
as demonstrated by the evidence,’ the trial court errs in admitting evidence of a
valuation methodology that ignores the developed market for a particular type of
property.” (Central Valley Gas Storage, LLC v. Southam (2017) 11 Cal.App.5th
686, 692 [217 Cal.Rptr.3d 715].)
• “[T]he fair market value of property taken has not been limited to the value of
the property as used at the time of the taking, but has long taken into account
the ‘highest and most profitable use to which the property might be put in the
reasonable near future, to the extent that the probability of such a prospective
use affects the market value.’ ” (City of San Diego v. Neumann (1993) 6 Cal.4th
738, 744 [25 Cal.Rptr.2d 480, 863 P.2d 725], internal citations omitted.)
• “In condemnation actions, California courts have long recognized what has been
referred to as the ‘appraisal trinity.’ This term encompasses three methods or
approaches used by appraisers to determine the fair market value of real estate:
(1) the current cost of reproducing (or replacing) the property less depreciation
from all sources; (2) the ‘market data’ value as indicated by recent sale of
comparable properties; and (3) the ‘income approach,’ or the value of which the
property’s net earning power will support based upon the capitalization of net
income. In 1965, the state Legislature codified these three approaches in
Evidence Code section 815–820. A qualified appraiser in an eminent domain
proceeding may use one or more of these valuation techniques to ascertain the
fair market value of the condemned property.” (Redevelopment Agency of the
City of Long Beach, supra, 140 Cal.App.3d at p. 705, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1368
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.1–4.2
4 Nichols on Eminent Domain, Ch. 12, Valuation Generally, §§ 12.01–12.05, Ch.
13, Fair Market Value—Physical Character, § 13.01 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.135 (Matthew Bender)
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3502. “Highest and Best Use” Explained
You must determine fair market value based on the property’s highest
and best use. The highest and best use is the most profitable legally
permissible use for which the property is physically, geographically, and
economically adaptable.
Do not consider any personal value of the property to [name of property
owner] or [his/her/nonbinary pronoun/its] need for the property. Also, do
not consider the particular need of [name of condemnor] for the property.
New September 2003; Revised June 2015
Directions for Use
Give this instruction if the owner claims that the property’s fair market value should
be determined based on some use for which the property is geographically and
economically adaptable other than the current use. (See San Diego Gas & Electric
Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1288 [175 Cal.Rptr.3d 858].)
Sources and Authority
• “The property taken is valued based on the highest and best use for which it is
geographically and economically adaptable.” (County of San Diego v. Rancho
Vista Del Mar, Inc. (1993) 16 Cal.App.4th 1046, 1058 [20 Cal.Rptr.2d 675],
internal citation omitted.)
• “The highest and best use is defined as ‘that use, among the possible alternative
uses, that is physically practical, legally permissible, market supportable, and
most economically feasible . . . . The appraiser must make a determination of
highest and best use as part of the appraisal process.’ ” (San Diego Gas &
Electric Co., supra, 228 Cal.App.4th at p. 1289.)
• “It is long settled that the condemned property may not be valued based on its
special value to the property owner . . . . Thus, the cases have generally held
that a property owner may not value his property based upon its use for a
projected special purpose or for a hypothetical business.” (County of San Diego,
supra, 16 Cal.App.4th at pp. 1058–1059.)
• “Just as the property may not be valued based on its special value to the owner,
the property may not be valued on the basis of its special value to the
government.” (County of San Diego, supra, 16 Cal.App.4th at p. 1061, internal
citation omitted.)
• “Simply stated, purchasers of property that is known to be condemned are
prevented from inflating the value of the property by conjecturing what the
condemner will actually pay for the property.” (People ex rel. Dept. of Water
Resources v. Andresen (1987) 193 Cal.App.3d 1144, 1156 [238 Cal.Rptr. 826],
internal citation omitted.)
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• “In condemnation cases it is a firmly established principle that the compensation
payable is to be based upon the loss to the owner rather than upon the benefit
received by the taker. The California Supreme Court early stated that ‘it seems
monstrous to say that the benefit arising from the proposed improvement is to be
taken into consideration as an element of the value of the land.’ This has been
construed to mean that ‘[the] beneficial purpose to be derived by the
condemnor’s use of the property is not to be taken into consideration in
determining market values, for it is wholly irrelevant.’ This rule, however, does
not mean that evidence of the highest and best use of the property must be
excluded simply because that is the use that the condemner intends to make of
the property . . . . [I]n City of Los Angeles v. Decker, the court reiterated that it
is improper to award compensation based upon the value to the condemner, but
held that it was proper in that case to consider the value of the property for
parking purposes (the highest and best use) despite the fact that the city intended
to use it for such purposes.” (Pacific Gas & Electric Co. v. Zuckerman (1987)
189 Cal.App.3d 1113, 1127 [234 Cal.Rptr. 630], internal citations omitted.)
• “ ‘The right to future exploitation of undeveloped natural resources has a present
and ascertainable value for purposes of eminent domain.’ Accordingly, ‘ “[i]n
determining just compensation in eminent domain proceedings, the existence of
valuable mineral deposits in the land taken constitutes an element which may be
considered insofar as it influences the market value of the land.” [Citations.]’ ”
(San Diego Gas & Electric Co., supra, 228 Cal.App.4th at p. 1289, internal
citation omitted.)
• “[Defendant] also argues that the developer’s rule precluded defendants’ experts
from testifying that the highest and best use of the property was a mining
operation because such an operation did not currently exist on the property. We
reject this assertion as a condemnee may present evidence that the property is
suitable for a particular purpose even if the property has not yet been developed
to that particular highest and best use. Moreover, ample authority supported the
income approach used by defendants where, as here, the property at issue
contains undeveloped natural resources.” (San Diego Gas & Electric Co., supra,
228 Cal.App.4th at p. 1293, internal citation omitted.)
• “Once the highest and best use of the property is determined, one of several
approaches to valuation must be selected. Evidence Code sections 815–820 set
forth various methodologies sanctioned for use by valuation experts, including
considering sales contracts of comparable properties and capitalizing income
from the subject land and its existing improvements.” (San Diego Metropolitan
Transit Development Bd. v. Cushman (1997) 53 Cal.App.4th 918, 926 [62
Cal.Rptr.2d 121], internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1368
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.9–4.21
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
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Inverse Condemnation, § 247.134 (Matthew Bender)
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3503. Change in Zoning or Land Use Restriction
A determination of the property’s highest and best use is not necessarily
limited by current zoning or land use restrictions. If you decide that as
of [insert date of valuation] there was a reasonable probability of a
change in zoning or other use restrictions in the near future, then you
must determine the highest and best use of the property based on that
change.
New September 2003
Sources and Authority
• “Where due to zoning restrictions the condemned property is not presently
available for use to which it is otherwise geographically and economically
adaptable, the condemnee is entitled to show a reasonable probability of a
zoning change in the near future and thus to establish such use as the highest
and best use of the property . . . . ‘The general rule is that present market value
must be determined only by uses for which land is adaptable and available.
However, where land sought to be condemned is not presently available for a
particular use by reason of a zoning ordinance or other restriction imposed by
law, but the evidence tends to show a “reasonable probability” of a change in the
near future, the effect of such probability on the minds of purchasers generally
may be taken into consideration in fixing present market value . . . .’ ” (City of
Los Angeles v. Decker (1977) 18 Cal.3d 860, 867–868 [135 Cal.Rptr. 647, 558
P.2d 545], internal citations omitted.)
• “A determination of the property’s highest and best use is not necessarily limited
to the current zoning or land use restrictions imposed on the property; the
property owner ‘is entitled to show a reasonable probability of a zoning [or other
change] in the near future and thus to establish such use as the highest and best
use of the property.’ ” (County of San Diego v. Rancho Vista Del Mar, Inc.
(1993) 16 Cal.App.4th 1046, 1058 [20 Cal.Rptr.2d 675], internal citations
omitted.)
• “[T]he determination as to whether or not there is a reasonable probability of a
[use] change is ordinarily a question of fact for the jury.” (Metropolitan Water
Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th
954, 967 [62 Cal.Rptr.3d 623, 161 P.3d 1175].)
• “Before such evidence may be presented to the jury, however, the trial court
must first determine whether there is sufficient evidence that would permit a jury
to conclude there is a reasonable probability of rezoning in the near future.
Evidence of a reasonable probability of a zoning change in the near future ‘must
at least be in accordance with the usual minimum evidentiary requirements, and
that which is purely speculative, wholly guess work and conjectural, is
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inadmissible.’ The evidence, if credited, must also be sufficient to establish that
rezoning is reasonably probable. If the trial court determines that no fact finder
could find a reasonable probability of rezoning on the record presented, it may
exclude all evidence and opinions of value based on a use other than that
authorized by the existing zoning. If, on the other hand, the trial court
determines that there is sufficient evidence of a reasonable probability of
rezoning to warrant submitting the issue to the jury, it is for the jury, in
considering the weight to be given valuation testimony based upon a reasonable
probability of rezoning, to determine whether there was a reasonable probability
of rezoning and, if so, its effect on the market value of the property. Thus,
before a jury may even reach the question whether a use which was
unauthorized by the existing zoning otherwise meets the criteria of a highest and
best use, the jury must first find that there was a reasonable probability of
rezoning to permit that use. Once that has been established, neither party bears
the burden to persuade the fact finder of the effect of this probability on the
valuation of the property.” (Metropolitan Water Dist. of So. California, supra, 41
Cal.4th at p. 968, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1369
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.12–4.17
14 California Real Estate Law and Practice, Ch. 508, Evidence: General, § 508.13;
Ch. 512, Compensation, § 512.10 et seq. (Matthew Bender)
4 Nichols on Eminent Domain, Ch. 12C, Absence of Market Value and Effect of
Restrictions, §§ 12C.01–12C.03, Ch. 13, Fair Market Value—Physical Character,
§§ 13.04, 13.29 (Matthew Bender)
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3504. Project Enhanced Value
You must consider any increase or decrease in the property’s fair market
value caused by public knowledge of [insert entity’s purpose for
condemning the property] until [insert date of property’s probable inclusion].
You may not consider any change in value caused by [insert entity’s
purpose for condemning the property] after that date. You may, however,
consider other factors that changed the property’s value after [insert date
of property’s probable inclusion], but before [insert date of valuation].
New September 2003
Sources and Authority
• Exclusions From Fair Market Value. Code of Civil Procedure section 1263.330.
• “A legitimate element of just compensation lies in the increase in value resulting
from a reasonable expectation that a particular piece of property will be outside
a proposed public improvement, and thus will reap the benefits of that
improvement.” (Merced Irrigation Dist. v. Woolstenhulme (1971) 4 Cal.3d 478,
488 [93 Cal.Rptr. 833, 483 P.2d 1].)
• “The ‘market value’ of a given piece of property, of course, reflects a great
variety of factors independent of the size, nature, or condition of the property
itself. The general character of the neighborhood, the quality of the public and
private services, and the availability of public facilities all play important roles
in establishing market value. Thus, widespread knowledge of a proposed public
improvement, planned for an indefinite location within a given region or
neighborhood, will frequently cause the market value of land in the region or
neighborhood to rise.” (Merced Irrigation Dist., supra, 4 Cal.3d at p. 488.)
• “[W]e now hold that increases in value, attributable to a project but reflecting a
reasonable expectation that property will not be taken for the improvement,
should properly be considered in determining ‘just compensation.’ ” (Merced
Irrigation Dist., supra, 4 Cal.3d at p. 495.)
• “[I]n computing ‘just compensation’ in such a case, a jury should only consider
the increase in value attributable to the project up until the time when it became
probable that the land would be needed for the improvement.” (Merced
Irrigation Dist., supra, 4 Cal.3d at p. 498.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1372
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.3–4.8
3 Nichols on Eminent Domain, Ch. 8A, Enhancement, §§ 8A.01–8A.02 (Matthew
Bender)
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4 Nichols on Eminent Domain, Ch. 12B, Valuation of the Fee Interest, § 12B.17
(Matthew Bender)
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3505. Information Discovered after Date of Valuation
In determining fair market value you must consider any condition that
affects the value of the property if the condition existed on [insert date of
valuation] but was discovered after that date.
New September 2003
Sources and Authority
• “[W]hile evidence of a change in the condition of the property after the date of
valuation may not be admissible . . . , information about the condition of the
property on the date of valuation which happens to be discovered after that date
must be considered. In effect, the parties are presumed to know all relevant
information available at the time of trial, even if it could not reasonably have
been discovered until after the date of valuation.” (San Diego Water Authority v.
Mireiter (1993) 18 Cal.App.4th 1808, 1814 [23 Cal.Rptr.2d 455].)
• “The California statutory scheme and the overwhelming weight of authority
supports the conclusion that relevant factual discoveries up to and including the
date of trial must be taken into account, regardless of whether they inflate or
deflate the value of the property. Accordingly, the trial court erred in failing to
instruct the jury it was required to consider the newly discovered information in
determining the compensation due defendants, and reversal is therefore
required.” (San Diego County Water Authority, supra, 18 Cal.App.4th at pp.
1817–1818.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1369
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 4.23
4 Nichols on Eminent Domain, Ch. 12A, Market Value—Time of Valuation,
§ 12A.01[7] (Matthew Bender)
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3506. Effect of Improvements
In determining the fair market value of the property you must consider
both the value of the land and whether any buildings, machinery, or
other equipment attached to the property increase or decrease the value
of the property.
New September 2003
Directions for Use
The court decides as a legal issue whether an improvement is a fixture “pertaining
to the realty.” (Code Civ. Proc., § 1260.030.)
Sources and Authority
• Improvements to Property Compensable. Code of Civil Procedure section
1263.210(a).
• “Improvements” Defined. Code of Civil Procedure section 1263.205(a).
• Removal of Property Without Substantial Economic Loss. Code of Civil
Procedure section 1263.205(b).
• “[T]he market value of land and the improvements thereon is the market value
thereof viewed as a whole and not separately.” (South Bay Irrigation Dist. v.
California-American Water Co. (1976) 61 Cal.App.3d 944, 986 [133 Cal.Rptr.
166], internal citation omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1362,
1363
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 4.55
4 Nichols on Eminent Domain, Ch. 13, Fair Market Value—Physical Character,
§§ 13.02, 13.12 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.136 (Matthew Bender)
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3507. Personal Property and Inventory
Just compensation also includes the loss of any inventory or personal
property caused by the taking. [Name of property owner] may be entitled
to the retail value of the inventory or personal property if the property
is unique and not readily replaceable. Otherwise, [name of property
owner] is entitled to wholesale value.
New September 2003
Sources and Authority
• “The Fifth Amendment of the United States Constitution, as applied to the states
by the Fourteenth Amendment, conditions the power of eminent domain upon
the payment of ‘just compensation.’ That constitutional requirement makes no
distinction between real property and personal property. If personal property is
taken by the government in the exercise of its eminent domain power, it must
compensate the owner.” (City of Needles v. Griswold (1992) 6 Cal.App.4th 1881,
1891 [8 Cal.Rptr.2d 753].)
• “We further acknowledge that where a condemner takes certain real property and
the removal or relocation of either tangible or intangible personal property is
impossible due to the condemnatory act, the owner is entitled to be justly
compensated for the loss of property, regardless of its nature.” (San Diego
Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73
Cal.App.4th 517, 533 [86 Cal.Rptr.2d 473], internal citations omitted.)
• “The general rule is that the Constitution does not require compensation for
personal property not affixed to the condemned realty. Movable items of personal
property are not ‘taken’ by the public entity when it condemns real property or a
business; instead, under the Relocation Assistance Act, the public entity
compensates the owner for the cost of moving the personal property to a new
site.” (County of San Diego v. Cabrillo Lanes, Inc. (1992) 10 Cal.App.4th 576,
583 [12 Cal.Rptr.2d 613].)
• “Business inventory may be compensable under limited circumstances, i.e.,
where the loss results from the condemnatory act itself (e.g., the inventory
cannot be relocated) rather than the personal circumstances of the condemnee
(e.g., the owner has decided that he will not relocate).” (Chhour v. Community
Redevelopment Agency of Buena Park (1996) 46 Cal.App.4th 273, 283 [53
Cal.Rptr.2d 585].)
• “The goal of the eminent domain trial [is] ‘to determine just compensation,’ to
wit, to put [condemnee] in ‘as good a position’ as if its business inventory had
‘not been taken.’ However, [condemnee] was only ‘entitled to be reimbursed for
the actual value of what [it] lost—no more and no less.’ ” (People ex rel. Dept.
of Transportation v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066,
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1072–1073 [116 Cal.Rptr.2d 240], internal citations omitted.)
• “To award [condemnee] retail value instead of wholesale value would result in a
windfall to [condemnee]—an award in excess of just compensation sufficient to
make [condemnee] whole. Here, the proper standard of fair market value is the
wholesale value. This is what a retailer, whose inventory of nonunique, fungible,
and readily replaceable goods is damaged as a result of an act of inverse
condemnation, should receive.” (McMahan’s of Santa Monica v. City of Santa
Monica (1983) 146 Cal.App.3d 683, 700 [194 Cal.Rptr. 582].)
• In People ex rel. Dept. of Transportation, supra, the court held that a jury should
have been allowed to consider expert witnesses’ testimony on valuation of
inventory based both on retail and wholesale value: “[A]lthough any ‘just and
equitable’ method could be proper, the jury would remain ‘free to accept or
reject’ [an expert’s] valuation.” (People ex rel. Dept. of Transportation, supra, 95
Cal.App.4th at p. 1083, internal citation omitted.)
• “[T]he general rule in eminent domain actions is that ‘the right to a jury trial
. . . goes only to the amount of compensation. All other questions of fact, or
mixed fact and law, are to be tried . . . without reference to a jury.’ ”
(Emeryville Redevelopment v. Harcros Pigments (2002) 101 Cal.App.4th 1083,
1116 [125 Cal.Rptr.2d 12], original italics, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1386
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 4.56
4 Nichols on Eminent Domain, Ch. 13, Fair Market Value—Physical Character,
§§ 13.11, 13.18[8] (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.136 (Matthew Bender)
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3508. Bonus Value of Leasehold Interest
[Some/All] of the property taken was leased to [name of lessee]. You must
determine the amount of compensation that [name of lessee] can recover.
To do this, you must determine the difference between:
1. The present value of the total rent that [name of lessee] agreed to
pay during the time remaining on the lease after [insert date of
possession when lessee no longer occupied the premises]; and
2. The present value of the total fair market rent for the leased
property from [date of valuation] for the time remaining on the
lease.
If the present value of the total agreed rent is less than the present value
of the total fair market rent, then [name of lessee] is entitled to the
difference.
New September 2003
Directions for Use
Do not give this instruction if bonus value is allocated under the lease to the owner.
This instruction may not be appropriate in every case involving a lessee.
This instruction would be applicable to the apportionment phase of the case under
Code of Civil Procedure section 1260.220(b).
Sources and Authority
• Lessee’s Right to Compensation. Code of Civil Procedure section 1265.150.
• Terms of Lease Define Rights of Parties. Code of Civil Procedure section
1265.160.
• “Under the Eminent Domain Law, a provision of a lease that declares that the
lease terminates if all the property subject thereto is acquired for public use does
not deprive the lessee of any right he may have to compensation for the taking
of his leasehold or other property. The Eminent Domain Law itself declares the
generally applicable rules that the lease terminates if all the property subject
thereto is acquired for public use, and that such termination does not affect any
right of the lessee to compensation related thereto.” (City of Vista v. W.O. Fielder
(1996) 13 Cal.4th 612, 618 [54 Cal.Rptr.2d 861, 919 P.2d 151], original italics.)
• “Usually the rental value of the property is measured in terms of existing
tenancies. Tenants, like owners in fee, are also entitled to compensation in
condemnation.” (People ex rel. Dept. of Water Resources v. Andresen (1987) 193
Cal.App.3d 1144, 1163 [238 Cal.Rptr. 826].)
• “The bonus value can be more precisely defined as the present value of the
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difference between economic rent, i.e., the value of market rental, and the
contract rent through the remaining lease term. The bonus value usually assumes
importance only in long-term commercial leases.” (New Haven Unified School
Dist. v. Taco Bell Corp. (1994) 24 Cal.App.4th 1473, 1478–1479 [30 Cal.Rptr.2d
469], internal citations omitted.)
• “Whether or not the lessor and lessee are joined in a single proceeding, these
rules will ordinarily result in an aggregate award to both lessor and lessee equal
to market value of the property. Where the lease rental falls below market value,
the lessor will have a claim to less than the full market value of the property,
since he is restricted to the present value of actual contract rental; but the lessee
will have a right to recover the balance of the market value, above that
recovered by the lessor, as lease bonus value.” (New Haven, supra, 24
Cal.App.4th at p. 1479, internal citation omitted.)
• “Although generally a tenant is entitled to all compensation attributable to the
tenant’s interest in a lease, it is well recognized that the parties to a lease may
contractually agree to allocate a condemnation award to the landlord rather than
the tenant.” (City of South San Francisco v. Mayer (1998) 67 Cal.App.4th 1350,
1354 [79 Cal.Rptr.2d 704], internal citations omitted.)
• “A lessee’s option to renew a lease should be considered to the extent that the
option enhances the value of the leasehold.” (San Francisco Bay Area Rapid
Transit Dist. v. McKeegan (1968) 265 Cal.App.2d 263, 272 [71 Cal.Rptr. 204].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1389
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.57–4.63
4 Nichols on Eminent Domain, Ch. 12D, Valuation of Interests Other Than Fee
Interests, § 12D.01[3] (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.136 (Matthew Bender)
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3509A. Precondemnation Damages—Unreasonable Delay
(Klopping Damages)
I have determined that [insert one or both of the following:]
[there was an unreasonable delay between [date of announcement
of intent to condemn], when the [name of condemnor] announced its
intent to condemn [name of property owner]’s property, and [date
of filing], when this case was filed] [and]
[insert description of unreasonable conduct].
In determining just compensation you must award damages that [name
of property owner] has suffered as a result of the [name of condemnor]’s
[delay/[describe unreasonable conduct]]. These damages may include
[insert damages appropriate to the facts, e.g., the cost of repairs, the loss of
use of the property, loss of rent, loss of profits, or increased operating
expenses pending repairs, and diminution of market value].
New September 2003; Revised and Renumbered May 2017
Directions for Use
This instruction will need to be modified if the entity does not ultimately proceed
with the condemnation, or if there has been another type of unreasonable conduct
other than unreasonable delay.
For an instruction on precondemnation damages arising from the public entity’s
authorized entry to investigate suitability of the property for the project, see CACI
No. 3509B, Precondemnation Damages—Public Entity’s Authorized Entry to
Investigate Property’s Suitability.
Sources and Authority
• “[A] condemnee must be provided with an opportunity to demonstrate that (1)
the public authority acted improperly either by unreasonably delaying eminent
domain action following an announcement of intent to condemn or by other
unreasonable conduct prior to condemnation; and (2) as a result of such action
the property in question suffered a diminution in market value.” (Klopping v.
City of Whittier (1972) 8 Cal.3d 39, 52 [104 Cal.Rptr. 1, 500 P.2d 1345].)
• “The measure of damages may be the cost of repairs, the loss of use of the
property, loss of rent, loss of profits, or increased operating expenses pending
repairs.” (City of Los Angeles v. Tilem (1983) 142 Cal.App.3d 694, 703 [191
Cal.Rptr. 229], internal citations omitted.)
• “[A]bsent a formal resolution of condemnation, recovery under Klopping
requires that the public entity’s conduct ‘directly and specially affect the
landowner to his injury.’ This requirement mandates that the plaintiff
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demonstrate conduct on the part of the public entity ‘which significantly invaded
or appropriated the use or enjoyment’ of the property.” (Barthelemy v. Orange
County Flood Control Dist. (1998) 65 Cal.App.4th 558, 570 [76 Cal.Rptr.2d
575], internal citations omitted.)
• “[S]ince Klopping damages compensate a landowner for a public entity’s
unreasonable precondemnation conduct, their recovery ‘is permitted irrespective
of whether condemnation proceedings are abandoned or whether they are
instituted at all.’ ” (Barthelemy, supra, 65 Cal.App.4th at p. 569, original italics,
internal citation omitted.)
• “Klopping does not permit an owner to recover precondemnation damages for
general market decline as that is not attributable to the condemner.” (People ex
rel. Dept. of Transportation v. McNamara (2013) 218 Cal.App.4th 1200, 1209
[160 Cal.Rptr.3d 812].)
• “Whether there has been unreasonable delay by the condemner and whether the
condemner has engaged in unreasonable conduct are both questions of fact.
What constitutes a direct and substantial impairment of property rights for
purposes of compensation is also a factual question. In deciding factual matters
on conflicting testimony and inferences, it is for the trier of fact to determine
which evidence and inferences it finds more reasonable.” (Contra Costa County
Water Dist. v. Vaquero Farms, Inc. (1997) 58 Cal.App.4th 883, 897 [68
Cal.Rptr.2d 272], internal citations omitted.)
• “Whether the public entity has acted unreasonably is a question of fact.
‘However, the threshold question of liability for unreasonable precondemnation
conduct is to be determined by the court, with the issue of the amount of
damages to be thereafter submitted to the jury only upon a sufficient showing of
liability by the condemnee.’ Because inverse condemnation damages for
precondemnation conduct must be claimed in a pending eminent domain action,
the appropriate procedure is to bifurcate the trial of the action so that the
question of the liability of the public entity is first adjudicated by the court
without a jury.” (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 897 [122
Cal.Rptr.2d 802], original italics, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1373
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 4.8
14 California Real Estate Law and Practice, Ch. 512, Compensation, § 512.12
(Matthew Bender)
6 Nichols on Eminent Domain, Ch. 26D, Abandonment, Dismissal of Action and
Assessment of Damages, § 26D.01 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.202 (Matthew Bender)
9 California Points and Authorities, Ch. 95, Eminent Domain, § 95.123 (Matthew
Bender)
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3509B. Precondemnation Damages—Public Entity’s Authorized
Entry to Investigate Property’s Suitability (Code Civ. Proc.,
§ 1245.060)
A public entity that is considering condemning property for public use
may enter the property before condemnation to conduct activities that
are reasonably related to acquiring the property for a public project.
However, the property owner may recover for any actual damage to, or
substantial interference with, the owner’s possession and use of the
property caused by the public entity’s entry for these purposes.
[Name of property owner] claims that [he/she/nonbinary pronoun/it]
suffered damage to, or substantial interference with, the use or
possession of [his/her/nonbinary pronoun/its] property because of [name of
condemnor]’s precondemnation activities on the property.
[If you determine that [name of property owner] suffered actual damage
to, or substantial interference with, the use or possession of
[his/her/nonbinary pronoun/its] property during precondemnation
activities,] [Y/y]ou must determine the amount of this loss and include it
in determining just compensation.
New May 2017
Directions for Use
Give this instruction if the property owner alleges that the public entity’s
precondemnation entry onto the property to investigate its suitability for a public
project caused actual damage or substantially interfered with the owner’s possession
or use of the property. (See Code Civ. Proc., §§ 1245.010, 1245.060.) The amount
of any such damages must be determined by a jury. (Property Reserve, Inc. v.
Superior Court (2016) 1 Cal.5th 151, 207–210 [204 Cal.Rptr.3d 770, 375 P.3d
887].)
The last paragraph is partially bracketed because it is not clear whether the jury is
also to determine whether in fact the owner has suffered any precondemnation harm
from the entry. (See City of Perris v. Stamper (2016) 1 Cal.5th 576, 593–595 [205
Cal.Rptr.3d 797, 376 P.3d 1221.) But for the similar claim for severance damages,
the California Supreme Court has held that it is for the jury to determine if such a
loss has actually occurred as long as the claim is not speculative, conjectural, or
remote. (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ,
Inc. (2007) 41 Cal.4th 954, 973 [62 Cal.Rptr.3d 623, 161 P.3d 1175].)
For an instruction on a claim for precondemnation damages because of the public
entity’s unreasonable delay in condemnation, see CACI No. 3509A,
Precondemnation Damages—Unreasonable Delay (Klopping Damages).
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Sources and Authority
• Public Entity’s Precondemnation Entry to Investigate Property’s Suitability for
Public Project. Code of Civil Procedure section 1245.010 et seq.
• Public Entity’s Precondemnation Entry Authorized for Particular Purposes. Code
of Civil Procedure 1245.010.
• Damages to or Interference With Possession and Use of Property During
Precondemnation Entry. Code of Civil Procedure section 1245.060.
• “[T]he current precondemnation entry and testing statutes not only establish a
statutory compensation procedure but also expressly preserve a property owner’s
right to pursue and obtain damages in a statutorily authorized civil action or an
ordinary inverse condemnation action. Taken as a whole, state law clearly
provides ‘a “ ‘reasonable, certain and adequate’ ” ’ procedure to enable a
property owner to recover money damages for any injury caused by the activities
authorized by the statutes.” (Property Reserve, Inc., supra, 1 Cal.5th at pp.
186–187, internal citations omitted.)
• “[T]he statutory damages that a property owner is entitled to obtain under
section 1245.060, the applicable precondemnation entry and testing statute, are a
constitutionally adequate measure of just compensation under the state takings
clause for the precondemnation activities authorized by the statutory scheme. [¶]
Like the concept of just compensation under the federal takings clause, the just
compensation required by the state takings clause is the amount required to
compensate the property owner for what the owner has lost.” (Property Reserve,
Inc., supra, 1 Cal.5th at pp. 203–204, internal citation omitted.)
• “[T]he compensation authorized by section 1245.060, subdivision (a)—damages
for any ‘actual damage’ to the property and for ‘substantial interference with the
[property owner’s] possession or use of the property’—appears on its face to be
a reasonable means of measuring what the property owner has lost by reason of
the specific precondemnation activities that are authorized by the trial court’s
environmental order.” (Property Reserve, Inc., supra, 1 Cal.5th at p. 205.)
• “The statutes at issue in the present case involve a factual
setting—precondemnation entry and testing—that falls between the classic
condemnation proceeding where the public entity is seeking to obtain title to or
a compensable property interest in the property and the typical inverse
condemnation action where the public entity does not intend to enter or intrude
upon private property but damage to such property nonetheless ensues. Here, the
proposed precondemnation entry and testing activities upon the subject property
are intentional, but the public entity is not seeking to obtain title to or exclusive
possession of the property for a significant period of time. Rather, the public
entity is seeking temporary access to the property to conduct investigations that
are needed to decide whether the property is suitable for a proposed project and
should thereafter be acquired by the public entity.” (Property Reserve, Inc.,
supra, 1 Cal.5th at p. 190.)
• “Although the measure of compensation that is ‘just’ for purposes of both the
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federal and state takings clause is often determined by the ‘fair market value’ of
what has been lost, both federal and state takings cases uniformly recognize that
the fair market value standard is not applicable in all circumstances and that
there is no rigid or fixed standard that is appropriate in all settings.” (Property
Reserve, Inc., supra, 1 Cal.5th at pp. 203–204.)
• “In light of the nature of the environmental order at issue here, however,
granting a property owner the rental value of the property in addition to any
damages the owner sustains for actual injury or substantial interference with the
possession or use of the property would afford the owner an unwarranted
windfall. Under the trial court’s environmental order, the owner retains full
possession and use of the property over the period covered by the order,
notwithstanding the authorized testing activities. Under these circumstances, the
rental value of the property would not be a valid measure of what the property
owner has lost as a result of the trial court’s environmental order.” (Property
Reserve, Inc., supra, 1 Cal.5th at p. 204.)
• “We have long held that this jury right applies only to determining the
appropriate amount of compensation, not to any other issues that arise in the
course of condemnation proceedings. ‘ “[A]ll issues except the sole issue relating
to compensation[] are to be tried by the court,” including, “except those relating
to compensation, the issues of fact.” ’ “ ‘ “ ‘It is only the ‘compensation,’ the
‘award,’ which our constitution declares shall be found and fixed by a jury. All
other questions of fact, or of mixed fact and law, are to be tried, as in many
other jurisdictions they are tried, without reference to a jury.’ ” ’ ” (City of
Perris, supra, 1 Cal.5th at p. 593, internal citations omitted.)
• “By contrast, Campus Crusade held that two pure questions of fact directly
pertaining to the proper amount of compensation were reserved to the jury. First,
we said that whether it is reasonably probable a city would change the zoning
status of the landowners’ property in the near future was a jury question. Second,
because the landowner had introduced credible evidence that the remaining
portion of its property would be worth less after the proposed taking due to
hazards associated with a pipeline the government proposed to install on the
property, the extent of the resulting severance damages was a jury question.”
(City of Perris, supra, 1 Cal.5th at p. 595, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1333
14 California Real Estate Law and Practice, Ch. 503, Preliminary Case Evaluation
and Preparation for the Condemnor, § 503.05 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.72 (Matthew Bender)
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3510. Value of Easement
The [name of condemnor] has taken the right to use a portion of [name of
property owner]’s land for a specific purpose. That right is called an
“easement.” After an easement has been taken, the property owner has
the right to use the land for any purpose that does not conflict with the
easement.
You must determine the fair market value of the easement on [insert date
of valuation]. The fair market value of the easement is determined by
subtracting the fair market value of the land after the easement was
taken from the fair market value of the land before the easement was
taken.
New September 2003
Sources and Authority
• “The holder of an easement is entitled to damages when the easement is taken or
damaged for public use.” (County Sanitation Dist. No. 8 of Los Angeles County
v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1279 [22 Cal.Rptr.2d 117],
internal citation omitted.)
• “The value of an easement in gross . . . is the difference in the before and after
value of the strip of land taken, and not what has been gained by the public
agency.” (County Sanitation Dist., supra, 17 Cal.App.4th at p. 1279, internal
citations omitted.)
• “ ‘An easement is an incorporeal interest in the land of another that gives its
owner the right to use the land of another or to prevent the property owner from
using his land.’ ” (County Sanitation Dist., supra, 17 Cal.App.4th at p. 1278,
internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1371
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.79–4.81
4 Nichols on Eminent Domain, Ch. 12D, Valuation of Interests Other Than Fee
Interests, § 12D.01[1][a] (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.136 (Matthew Bender)
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3511A. Severance Damages to Remainder (Code Civ. Proc.,
§§ 1263.410, 1263.420(a))
The [name of condemnor] has taken only a part of [name of property
owner]’s property. [Name of property owner] claims that [his/her/nonbinary
pronoun/its] remaining property has lost value as a result of the taking
because [specify reasons alleged for diminution of value of remaining
property]. This loss in value is called “severance damages.”
Severance damages are the damages to [name of property owner]’s
remaining property caused by the taking. If you determine that the
remaining property has lost value because of the taking, severance
damages must be included in determining just compensation.
Severance damages are determined as follows:
1. Determine the fair market value of the remaining property on
[date of valuation] by subtracting the fair market value of the part
taken from the fair market value of the entire property;
2. Determine the fair market value of the remaining property after
the [name of condemnor]’s proposed project is completed; and
3. Subtract the fair market value of the remaining property after
the [name of condemnor]’s proposed project is completed from the
fair market value of the remaining property on [date of valuation].
New September 2003; Revised December 2016; Revised and Renumbered May 2017
Directions for Use
Give this instruction if the owner claims that property not taken has lost value
because of the taking, for example because a view has been lost. It is for the jury to
determine if such a loss has actually occurred as long as the claim is not
speculative, conjectural, or remote. (Metropolitan Water Dist. of So. California v.
Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 973 [62 Cal.Rptr.3d 623,
161 P.3d 1175].) Read CACI No. 3512, Severance Damages—Offset for Benefits, if
benefits to the owner’s remaining property are at issue.
A property owner may also be able to recover for economic loss to the remaining
property incurred during the construction of the project. (Code Civ. Proc.,
§ 1263.420(b); see City of Fremont v. Fisher (2008) 160 Cal.App.4th 666, 676 [73
Cal.Rptr.3d 54].) For an instruction on this loss, see CACI No. 3511B, Damage to
Remainder During Construction.
Sources and Authority
• Right to Severance Damages. Code of Civil Procedure section 1263.410.
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• Damages to Remainder After Severance. Code of Civil Procedure section
1263.420(a).
• Benefit to Remainder. Code of Civil Procedure section 1263.430.
• “When property acquired by eminent domain is part of a larger parcel,
compensation must be awarded for the injury, if any, to the remainder. Such
compensation is commonly called severance damages. When the property taken
is but part of a single legal parcel, the property owner need only demonstrate
injury to the portion that remains to recover severance damages.” (City of San
Diego v. Neumann (1993) 6 Cal.4th 738, 741 [25 Cal.Rptr.2d 480, 863 P.2d
725], internal citations omitted.)
• “The claimed loss in market value must directly and proximately flow from the
taking. Thus, recovery may not be based on ‘ “ ‘speculative, remote, imaginary,
contingent, or merely possible’ ” ’ events.” (City of Livermore v. Baca (2012)
205 Cal.App.4th 1460, 1466 [141 Cal.Rptr.3d 271].)
• The court determines as a matter of law what constitutes the “larger parcel” for
which severance damages may be obtained: “The Legislature has framed the
question of whether property should be viewed as an integrated whole in terms
of whether the land remaining after the taking forms part of a ‘larger parcel’.”
(City of San Diego, supra, 6 Cal.4th at p. 745, internal citations omitted.)
• “As we said in Pierpont Inn, ‘Where the property taken constitutes only a part
of a larger parcel, the owner is entitled to recover, inter alia, the difference in the
fair market value of his property in its “before” condition and the fair market
value of the remaining portion thereof after the construction of the improvement
on the portion taken. Items such as view, access to beach property, freedom from
noise, etc. are unquestionably matters which a willing buyer in the open market
would consider in determining the price he would pay for any given piece of
real property.’ Severance damages are not limited to special and direct damages,
but can be based on any factor, resulting from the project, that causes a decline
in the fair market value of the property.” (Los Angeles County Metropolitan
Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th
694, 712 [66 Cal.Rptr.2d 630, 941 P.2d 809], internal citations omitted.)
• “Both sides here thus agree that the court, not the jury, must make certain
determinations that are a predicate to the award of severance damages. But
[condemnor] is on weaker ground when it attempts to derive . . . a general rule
that ‘as a matter of constitutional and decisional law, all issues having to do with
the existence of, or entitlement to, severance damages are entrusted to the trial
judge,’ such that ‘[o]nly after the trial judge has determined that severance
damages exist does the jury consider the amount of those severance damages.’
[Condemnor]’s proposed rule assumes that questions relating to the measurement
of severance damages can be readily distinguished from questions relating to the
entitlement to them in the first place but, as we have previously cautioned, the
two concepts are not necessarily ‘so easily separable.’ ” (Metropolitan Water
Dist. of So. California, supra, 41 Cal.4th at p. 972, original italics, internal
citations omitted.)
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• “[W]here the property owner produces evidence tending to show that some other
aspect of the taking . . . ‘naturally tends to and actually does decrease the
market value’ of the remaining property, it is for the jury to weigh its effect on
the value of the property, as long as the effect is not speculative, conjectural, or
remote.” (Metropolitan Water Dist. of So. California, supra, 41 Cal.4th at p.
973.)
• “In determining severance damage, the jury must assume ‘the most serious
damage’ which will be caused to the remainder by the taking of the easement
and construction of the property. The value of the remainder after the
condemnation has occurred is referred to as the ‘after’ value of the property. The
diminution in fair market value is determined by comparing the before and after
values. This is the amount of the severance damage.” (San Diego Gas & Electric
Co. v. Daley (1988) 205 Cal.App.3d 1334, 1345 [253 Cal.Rptr. 144], internal
citations omitted, disapproved on other grounds in Los Angeles County
Metropolitan Transportation Authority, supra, 16 Cal.4th at p. 720.)
• “[S]everance damages are not limited to specific direct damages but can be
based on any indirect factors that cause a decline in the market value of the
property. California decisions have indicated the following are compensable as
direct damages under section 1263.410: (1) impairment of view, (2) restriction of
access, (3) increased noise, (4) invasion of privacy, (5) unsightliness of the
project, (6) lack of maintenance of the easement and (7) nuisances in general
such as trespassers and safety risks. Several courts have recognized that the
condemnee should be compensated for any characteristic of the project which
causes ‘an adverse impact on the fair market value of the remainder.’” (San
Diego Gas & Electric Co., supra, 205 Cal.App.3d at p. 1345.)
• “When ‘the property acquired [by eminent domain] is part of a larger parcel,’ in
addition to compensation for the property actually taken, the property owner
must be compensated for the injury, if any, to the land that he retains. Once it is
determined that the owner is entitled to severance damages, they, too, normally
are measured by comparing the fair market value of the remainder before and
after the taking.” (City of San Diego, supra, 6 Cal.4th at p. 745, internal
citations and footnote omitted.)
• “[W]hether access to a property has been ‘substantially impaired’ for purposes of
determining severance damages is a question for the court, even though
‘[s]ubstantial impairment cannot be fixed by abstract definition; it must be found
in each case upon the basis of the factual situation.’ ” (City of Perris v. Stamper
(2016) 1 Cal.5th 576, 594 [205 Cal.Rptr.3d 797, 376 P.3d 1221].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1374–1382
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) Ch. 5
14 California Real Estate Law and Practice, Ch. 508, Evidence: General, §§ 508.24,
508.25 (Matthew Bender)
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4A Nichols on Eminent Domain, Ch. 14, Damages for Partial Takings,
§§ 14.01–14.03 (Matthew Bender)
5 Nichols on Eminent Domain, Ch. 16, Consequential Damages as a Result of
Proposed Use, §§ 16.01–16.05 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.140 (Matthew Bender)
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3511B. Damage to Remainder During Construction (Code Civ.
Proc., § 1263.420(b))
The [name of condemnor] has taken only a part of [name of property
owner]’s property. [Name of property owner] claims that [he/she/nonbinary
pronoun/it] suffered damage to the remaining property during
construction of the project for which the property was taken. This loss
was because of [specify reasons alleged for damage due to construction,
e.g., reduced business because construction made access to owner’s business
more diffıcult].
If you determine that [name of property owner] suffered damage to [his/
her/nonbinary pronoun/its] remaining property during construction, you
must determine the amount of this damage and include it in determining
just compensation.
New May 2017; Revised May 2020
Directions for Use
Give this instruction if the owner claims that the owner suffered an economic loss
on the property not taken during construction of the project, for example because of
decreased business due to access being made more difficult. (See City of Fremont v.
Fisher (2008) 160 Cal.App.4th 666, 676 [73 Cal.Rptr.3d 54].) Courts have referred
to these damages as “temporary severance damages” (see, e.g., City of Fremont,
supra, 160 Cal.App.4th at p. 676.), though the statute does not call them either
“temporary” or “severance.” (See Code Civ. Proc., § 1263.420(b) [damage to the
remainder caused by the construction and use of the project for which the property
is taken].)
It is for the jury to determine if such a loss has actually occurred as long as the
claim is not speculative, conjectural, or remote. (Metropolitan Water Dist. of So.
California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 973 [62
Cal.Rptr.3d 623, 161 P.3d 1175].)
A property owner may also be able to recover severance damages if the remaining
property has decreased in value because of the partial taking. If severance damages
are sought, give CACI No. 3511A, Severance Damages to Remainder. Read CACI
No. 3512, Severance Damages—Offset for Benefits, if benefits to the owner’s
remaining property are at issue.
Sources and Authority
• Damages to Remainder During Construction. Code of Civil Procedure section
1263.420(b).
• Benefit to Remainder. Code of Civil Procedure section 1263.430.
• “When property acquired by eminent domain is part of a larger parcel,
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compensation must be awarded for the injury, if any, to the remainder. Such
compensation is commonly called severance damages. When the property taken
is but part of a single legal parcel, the property owner need only demonstrate
injury to the portion that remains to recover severance damages.” (City of San
Diego v. Neumann (1993) 6 Cal.4th 738, 741 [25 Cal.Rptr.2d 480, 863 P.2d
725], internal citations omitted.)
• “Temporary severance damages resulting from the construction of a public
project are also compensable. A property owner ‘generally should be able “to
present evidence to show whether and to what extent the delay disrupted its use
of the remaining property.” ’ However, ‘the mere fact of a delay associated with
construction’ does not, without more, entitle the property owner to temporary
severance damages. The temporary easement or taking must interfere with the
owner’s actual intended use of the property.” (City of Fremont, supra, 160
Cal.App.4th at p. 676, original italics.)
• “If [owner] had sold the property during the construction period and if the
ongoing construction had temporarily lowered the sales price of the property, it
would appear that [owner] would be entitled to recover that loss from [city]. But
the mere fact of a delay associated with construction of the pipeline did not,
without more, entitle [owner] to temporary severance damages relating to the
financing or marketing of the property in this eminent domain action. [¶] This is
not to say, however, that [owner] is barred from recovering damages for actual
injury it may have suffered during the construction of the pipeline. On remand,
[owner] may have the opportunity before the trial court to create an appropriate
record to support its claim of severance damages. In addition, ‘[w]hen the
condemnation action is tried before the improvement is constructed, and
substantial although temporary interference with the property owner’s rights of
possession or access occurs during construction, the property owner may
maintain a subsequent action for such damage occurring during construction.’ ”
(Metropolitan Water Dist. of So. California, supra, 41 Cal.4th at p. 975, internal
citations omitted.)
• “[Owner] sought temporary severance damages for impairment to his property
because of construction activities associated with the project. Specifically,
[owner] asserted the effect of removal of all landscaping for a period of one
year, and the closure of two of four driveways on his property for four months
during construction entitles him to temporary severance damages. In addition,
[owner] asserts the access to his property was substantially impaired by the
traffic detour traveling east through the intersection of East Airway Boulevard
and Isabel Avenue created by the construction project.” (City of Livermore v.
Baca (2012) 205 Cal.App.4th 1460, 1471 [141 Cal.Rptr.3d 271] [court erred in
excluding evidence of the above].)
• “The Legislature has framed the question of whether property should be viewed
as an integrated whole in terms of whether the land remaining after the taking
forms part of a ‘larger parcel’; the issue is one of law for decision by the court.”
(City of San Diego, supra, 6 Cal.4th at p. 745, internal citations omitted.)
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• “Both sides here thus agree that the court, not the jury, must make certain
determinations that are a predicate to the award of severance damages. But
[condemnor] is on weaker ground when it attempts to derive . . . a general rule
that ‘as a matter of constitutional and decisional law, all issues having to do with
the existence of, or entitlement to, severance damages are entrusted to the trial
judge,’ such that ‘[o]nly after the trial judge has determined that severance
damages exist does the jury consider the amount of those severance damages.’
[Condemnor]’s proposed rule assumes that questions relating to the measurement
of severance damages can be readily distinguished from questions relating to the
entitlement to them in the first place but, as we have previously cautioned, the
two concepts are not necessarily ‘so easily separable.’ ” (Metropolitan Water
Dist. of So. California, supra, 41 Cal.4th at p. 972, original italics, internal
citations omitted.)
• “In determining severance damage, the jury must assume ‘the most serious
damage’ which will be caused to the remainder by the taking of the easement
and construction of the property.” (San Diego Gas & Electric Co. v. Daley
(1988) 205 Cal.App.3d 1334, 1345 [253 Cal.Rptr. 144], internal citations
omitted, disapproved on other grounds in Los Angeles County Metropolitan
Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th
694, 720 [66 Cal.Rptr.2d 630, 941 P.2d 809].)
• “[W]hether access to a property has been ‘substantially impaired’ for purposes of
determining severance damages is a question for the court, even though
‘[s]ubstantial impairment cannot be fixed by abstract definition; it must be found
in each case upon the basis of the factual situation.’ ” (City of Perris v. Stamper
(2016) 1 Cal.5th 576, 594 [205 Cal.Rptr.3d 797, 376 P.3d 1221].)
• “Although the measure of compensation that is ‘just’ for purposes of both the
federal and state takings clause is often determined by the ‘fair market value’ of
what has been lost, both federal and state takings cases uniformly recognize that
the fair market value standard is not applicable in all circumstances and that
there is no rigid or fixed standard that is appropriate in all settings.” (Property
Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 186 [204 Cal.Rptr.3d 770,
375 P.3d 887].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1374–1382
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) Ch. 5
14 California Real Estate Law and Practice, Ch. 508, Evidence: General, §§ 508.24,
508.25 (Matthew Bender)
4A Nichols on Eminent Domain, Ch. 14, Damages for Partial Takings,
§§ 14.01–14.03 (Matthew Bender)
5 Nichols on Eminent Domain, Ch. 16, Consequential Damages as a Result of
Proposed Use, §§ 16.01–16.05 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
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Inverse Condemnation, § 247.140 (Matthew Bender)
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3512. Severance Damages—Offset for Benefits
The [name of condemnor] claims that the remainder of [name of property
owner]’s property has received a benefit from the project as proposed.
You must determine the amount of benefit by determining any
reasonably certain increase in the fair market value of the remaining
property caused by the project.
[You must then subtract that amount from the severance damages. If the
project’s benefit to the remaining property is equal to or greater than
the loss caused by the taking, then you must award zero severance
damages. Any benefits to the remaining property should not be
subtracted from the value of the property that [name of condemnor] has
taken.]
New September 2003
Directions for Use
A special verdict form may be used to have the jury set forth separately the
determination of severance damages and benefits. Use the bracketed paragraph if the
judge will not be calculating the offset to severance damages for the benefit to the
remaining property.
Sources and Authority
• Compensation for Remainder After Severance. Code of Civil Procedure section
1263.410.
• “Benefit to Remainder” Defined. Code of Civil Procedure section 1263.430.
• Functions of Trier of Fact. Code of Civil Procedure section 1260.230.
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1374–1382
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 5.33–5.40
5 Nichols on Eminent Domain, Ch. 16, Consequential Damages as a Result of
Proposed Use, §§ 16.01–16.05 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.140 (Matthew Bender)
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3513. Goodwill
In this case, [name of business owner] is entitled to compensation for any
loss of goodwill as a part of just compensation. “Goodwill” is the benefit
that a business gains as a result of its location, reputation for
dependability, skill, or quality, and any other circumstances that cause a
business to keep old customers or gain new customers. You must include
the amount of any loss of goodwill as an item in your award for just
compensation.
New September 2003; Revised February 2007
Sources and Authority
• Compensation for Loss of Goodwill. Code of Civil Procedure section 1263.510.
• “Goodwill is the amount by which a business’s overall value exceeds the value
of its constituent assets, often due to a recognizable brand name, a sterling
reputation, or an ideal location. Regardless of the cause, however, goodwill
almost always translates into a business’s profitability.” (People ex rel. Dept. of
Transportation v. Dry Canyon Enterprises, LLC (2012) 211 Cal.App.4th 486,
493–494 [149 Cal.Rptr.3d 601], internal citation omitted.)
• “Historically, lost business goodwill was not recoverable under eminent domain
law. However, in 1975 the Legislature enacted section 1263.510 ‘in response to
widespread criticism of the injustice wrought by the Legislature’s historic refusal
to compensate condemnees whose ongoing businesses were diminished in value
by a forced relocation. [Citations.] The purpose of the statute was unquestionably
to provide monetary compensation for the kind of losses which typically occur
when an ongoing small business is forced to move and give up the benefits of its
former location.’ Thus, a business owner’s right to compensation for loss of
goodwill is a statutory right, not a constitutional right.” (City and County of San
Francisco v. Coyne (2008) 168 Cal.App.4th 1515, 1522 [86 Cal.Rptr.3d 255],
internal citations omitted.)
• “Determining liability for loss of goodwill under section 1263.510 involves a
two-step process. ‘First, the court determines entitlement: that is, whether the
party seeking compensation has presented sufficient evidence of the conditions
for compensation set forth in subdivision (a)—causation, unavoidability, and no
double recovery—such that the party is entitled to some compensation. If the
party meets this burden, the matter proceeds to a second step, in which a jury
(unless waived) determines the amount of the loss.’ Thus, if that party meets
certain ‘ “qualifying conditions for such compensation,” ’ it has a right to a jury
trial on the amount of compensation due.” (Los Angeles County Metropolitan
Transportation Authority v. Yum Yum Donut Shops, Inc. (2019) 32 Cal.App.5th
662, 669 [244 Cal.Rptr.3d 201], original italics, internal citation omitted.)
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• “[T]he owner of a business conducted on property taken by eminent domain is
entitled to compensation for loss of goodwill resulting from the taking. (Thee
Aguila, Inc. v. Century Law Group, LLP (2019) 37 Cal.App.5th 22, 27 [249
Cal.Rptr.3d 254].)
• “ ‘Under section 1263.510, subdivision (a), the business owner has the initial
burden of showing entitlement to compensation for lost goodwill.’ ” (City and
County of San Francisco, supra, 168 Cal.App.4th at pp. 1522–1523, internal
citations omitted.)
• “Since the conditions set forth in subdivision (a) all pertain to the ‘loss’ of
‘goodwill,’ the initial obligation to establish entitlement to compensation requires
a showing, ‘as a threshold matter, that the business had goodwill to lose.’ ”
(People ex rel. Dept. of Transportation v. Presidio Performing Arts Foundation
(2016) 5 Cal.App.5th 190, 201 [209 Cal.Rptr.3d 461].)
• “[I]n the entitlement phase, the party seeking compensation need only show that
there was some loss of the benefit that the business was enjoying before the
taking due to its location, reputation, and the like, without necessarily having to
quantify its precise value.” (People ex rel. Dept. of Transportation v. Presidio
Performing Arts Foundation, supra, 5 Cal.App.5th at p. 204, original italics.)
• “After entitlement to goodwill is shown (which includes a showing that
compensation for the loss will not be duplicated) neither party has the burden of
proof with regard to valuation.” (Redevelopment Agency of the City of Pomona v.
Thrifty Oil Co. (1992) 4 Cal.App.4th 469, 475 [5 Cal.Rptr.2d 687], internal
citations omitted.)
• “Only an owner of a business conducted on the real property taken may claim
compensation for loss of goodwill.” (San Diego Metropolitan Transit
Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 537 [86
Cal.Rptr.2d 473], internal citation omitted.)
• “[W]hile there are no explicit statutory requirements regarding an expert’s use of
a particular methodology for valuing lost goodwill, the expert’s methodology
must provide a fair estimate of actual value and cannot be based on hypothetical
or speculative uses of a condemned business . . . .” (City and County of San
Francisco, supra, 168 Cal.App.4th at p. 1523, original italics.)
• “The underlying purpose of this statute is to provide compensation for the kind
of losses which typically occur when an ongoing business is forced to move and
give up the benefits of its former location. It includes not only compensation for
lost patronage itself, but also for expenses reasonably incurred in an effort to
prevent a loss of patronage.” (San Diego Metropolitan Transit Development Bd.,
supra, 73 Cal.App.4th at p. 537, internal citations omitted.)
• “Goodwill must, of course, be measured by a method which excludes the value
of tangible assets or the normal return on those assets. However, the courts have
wisely maintained that there is no single acceptable method of valuing goodwill.
Valuation methods will differ with the nature of the business or practice and with
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the purpose for which the evaluation is conducted.” (People ex rel. Dept. of
Transportation v. Muller (1984) 36 Cal.3d 263, 271, fn. 7 [203 Cal.Rptr. 772,
681 P.2d 1340], internal citations omitted.)
• “The value of this goodwill may be determined using a variety of methods: for
example, determining the total value of the business by capitalizing its cash flow,
and then subtracting its tangible assets; or determining the amount by which the
business’s average profits exceed a fair rate of return on the fair market value of
its tangible assets, and then capitalizing that amount. But the essential idea is
that there is some intangible ‘X-factor’ that gives the business greater value than
it would otherwise have.” (People ex rel. Dept. of Transportation v. Presidio
Performing Arts Foundation, supra, 5 Cal.App.5th at p. 201, internal citation
omitted.)
• “Certainly a comparison of the pre-taking and post-taking goodwill values would
be one way to quantify the amount of goodwill that was lost due to the taking.
But it is not evident from the appellate record that the amount of lost goodwill
could not be calculated in some other manner.” (People ex rel. Dept. of
Transportation v. Presidio Performing Arts Foundation, supra, 5 Cal.App.5th at
p. 205.)
• “Section 1263.510 does not dictate that the only way to obtain compensation for
the loss of goodwill is to prove pre-taking goodwill value based on a business
value in excess of its tangible assets. Nor does the statute define goodwill as the
value of a business not attributable to its tangible assets.” (People ex rel. Dept.
of Transportation v. Presidio Performing Arts Foundation, supra, 5 Cal.App.5th
at p. 211.)
• “[A] ‘cost to create’ approach is a permissible means by which to value goodwill
under [Code of Civil Procedure] section 1263.510 where, as here, a nascent
business has not yet experienced excess profits but clearly has goodwill within
the meaning of the statute and experiences a total loss of goodwill due to
condemnation of the property on which the business is operated.” (Inglewood
Redevelopment Agency v. Aklilu (2007) 153 Cal.App.4th 1095, 1102 [64
Cal.Rptr.3d 519].)
• “As Aklilu implicitly recognized, unless there is independent proof that a
business possesses goodwill in the first place, the cost-to-create methodology
does not reflect the cost of creating any actual goodwill. Instead, it simply adds
up costs and calls the total ‘goodwill.’ The relationship between goodwill and
the costs to create breaks down even further when the condemnation takes only
a portion of the business’s goodwill. In that situation, it becomes necessary to
figure out which costs match up with which portions of goodwill that are lost; in
most cases, this will devolve into an exercise in futility or fiction.” (Dry Canyon
Enterprises, LLC, supra, 211 Cal.App.4th at p. 494.)
• “Since quantifying the loss of goodwill is a matter concerning the amount of
goodwill lost, it is for the jury to decide between the competing views of the
experts.” (People ex rel. Dept. of Transportation v. Presidio Performing Arts
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Foundation, supra, 5 Cal.App.5th at pp. 213–214.)
• “A business which is required to move because of the taking of the property on
which it operates has suffered a loss from the taking. This is true whether the
tenancy is for a fixed term, or is a periodic tenancy as in this case. The value of
the lost goodwill is affected by the probable remaining term of the tenancy.
Evidence of the remaining length of a lease and the existence of an option to
renew a lease are, of course, relevant for determining the amount of
compensation, if any, to be paid for loss of goodwill. Similarly, evidence of the
pre-condemnation duration of a periodic tenancy and the quality and mutual
satisfaction in the landlord and tenant relationship are probative for
determination of compensation for loss of goodwill.” (Los Angeles Unified Sch.
Dist. v. Pulgarin (2009) 175 Cal.App.4th 101, 107 [95 Cal.Rptr.3d 527], internal
citation omitted.)
• “The statute’s unambiguous plain language provides that a condemnee must
show it cannot prevent a loss of goodwill by relocating or otherwise taking
reasonable steps to prevent that loss to be entitled to a jury trial on the amount
of that unavoidable loss. A fortiori, if the condemnee would lose goodwill—even
if it relocated its business or otherwise reasonably mitigated the loss—the
condemnee satisfies its threshold burden.” (Los Angeles County Metropolitan
Transportation Authority, supra, 32 Cal.App.5th at p. 670.)
• “[I]n some circumstances, there may be a limited right to reimbursement for
costs incurred to mitigate loss of goodwill.” (Los Angeles Unified School Dist. v.
Casasola (2010) 187 Cal.App.4th 189, 208 [114 Cal.Rptr.3d 318].)
• “Although the statutory scheme applies only to eminent domain proceedings, the
right to recover lost goodwill has been extended to the indirect condemnee.
Thus, ‘goodwill is compensable in an inverse condemnation action to the same
extent and with the same limitations on recovery found in . . . section
1263.510.’ ” (San Diego Metropolitan Transit Development Bd., supra, 73
Cal.App.4th at p. 537, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1358
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶¶ 7:314–7.316.3 (The Rutter Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8C-H,
Foundation, ¶ 8:748.2 (The Rutter Group)
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.64–4.78
14 California Real Estate Law and Practice, Ch. 508, Evidence: General, § 508.19;
Ch. 512, Compensation, § 512.13 (Matthew Bender)
4 Nichols on Eminent Domain, Ch. 13, Loss of Business Goodwill, § 13.18[5]
(Matthew Bender)
6A Nichols on Eminent Domain, Ch. 29, Loss of Business Goodwill, §§ 29.01–29.08
(Matthew Bender)
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20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.136 (Matthew Bender)
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3514. Burden of Proof
Neither the [name of condemnor] nor [name of property owner] has the
burden of proving the amount of just compensation.
New September 2003
Sources and Authority
• Order of Presenting Evidence; No Burden of Proof. Code of Civil Procedure
section 1260.210.
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1358
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 9.14
5 Nichols on Eminent Domain, Ch. 18, Evidence in Condemnation Proceedings,
§ 18.02 (Matthew Bender)
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3515. Valuation Testimony
You must decide the value of property based solely on the testimony of
the witnesses who have given their opinion of fair market value. You
may consider other evidence only to help you understand and weigh the
testimony of those witnesses.
You may find the same fair market value testified to by a witness, or you
may find a value anywhere between the highest and lowest values stated
by the witnesses.
If the witnesses disagreed with one another, you should weigh each
opinion against the others based on the reasons given for each opinion,
the facts or other matters that each witness relied on, and the witnesses’
qualifications.
New September 2003
Sources and Authority
• Evidence of Value of Property. Evidence Code section 813(a).
• “The only type of evidence which can be used to establish value in eminent
domain cases is the opinion of qualified experts and the property owners.”
(Aetna Life and Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865,
877 [216 Cal.Rptr. 831], internal citations omitted.)
• “A jury hearing a condemnation action may not disregard the evidence as to
value and render a verdict which either exceeds or falls below the limits
established by the testimony of the witnesses. The trier of fact in an eminent
domain action is not an appraiser, and does not make a determination of market
value based on its opinion thereof. Instead it determines the market value of the
property, based on the opinions of the valuation witnesses.” (Aetna Life and
Casualty Co., supra, 170 Cal.App.3d at p. 877, internal citations omitted.)
• “ ‘The trier of fact may accept the evidence of any one expert or choose a figure
between them based on all of the evidence.’ There is insufficient evidence to
support a verdict ‘only when “no reasonable interpretation of the record”
supports the figure . . . .’ ” (San Diego Metropolitan Transit Development Bd. v.
Cushman (1997) 53 Cal.App.4th 918, 931 [62 Cal.Rptr.2d 121], internal citations
omitted.)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, § 103
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 9.62–9.64
5 Nichols on Eminent Domain, Ch. 23, Expert and Opinion Evidence,
§§ 23.01–23.11 (Matthew Bender)
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3516. View
You have viewed the property and its surrounding area. The purpose of
this view was to help you understand and weigh the testimony of the
witnesses.
New September 2003
Sources and Authority
• View of Property. Evidence Code section 813(b).
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Demonstrative, Experimental, and
Scientific Evidence, § 33
1 Condemnation Practice in California (Cont.Ed.Bar 3d ed.) § 9.95
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3517. Comparable Sales (Evid. Code, § 816)
To assist you in determining the fair market value of the property, you
have heard evidence of comparable sales. It is up to you to decide the
importance of this evidence in determining the fair market value.
New December 2013
Directions for Use
Use this instruction if the court has allowed evidence of comparable sales to be
presented to the jury.
Sources and Authority
• Comparable Sales. Evidence Code section 816.
• “[T]he essence of comparability is recent and local sales ‘suffıciently alike in
respect to character, size, situation, usability, and improvements’ so that the price
‘may fairly be considered as shedding light’ on the value of the condemned
property. . . . After the trial court resolves this preliminary legal question, it is
then ultimately for the jury to determine the extent to which the other property is
in fact comparable.” (County of Glenn v. Foley (2012) 212 Cal.App.4th 393, 401
[151 Cal.Rptr.3d 8], original italics, internal citations omitted.)
• “This whole ‘shedding light on value’ standard is nothing more than a
restatement of the general rule for the introduction of circumstantial evidence,
which is admissible if relevant, ‘i.e., if it can provide any rational inference in
support of the issue.’ ” (County of Glenn, supra, 212 Cal.App.4th at p. 402,
original italics, footnote omitted.)
• “[No] general rule can be laid down regarding the degree of similarity that must
exist to make [comparable sales] evidence admissible. It must necessarily vary
with the circumstances of each particular case. Whether the properties are
sufficiently similar to have some bearing on the value under consideration, and
to be of any aid to the jury, must necessarily rest largely in the sound discretion
of the trial court, which will not be interfered with unless abused.” (Merced
Irrigation Dist. v. Woolstenhulme (1971) 4 Cal.3d 478, 500 [93 Cal.Rptr. 833,
483 P.2d 1].)
• “The trial judge’s prima facie determination that a sale is sufficiently
‘comparable’ to be admitted into evidence has never been thought to foreclose
the question of ‘comparability’ altogether. ‘[If] at the discretion of the court,
such [sales] are admissible on the grounds of comparability, the degree of
comparability is a question of fact for the jury.’ ” (County of San Luis Obispo v.
Bailey (1971) 4 Cal.3d 518, 525 [93 Cal.Rptr. 859, 483 P.2d 27].)
• “We have never declared properties noncomparable per se merely because they
differ in size or shape. On the contrary, the trial court’s obligation, pursuant to
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section 816, is to determine whether the sale price of one property could shed
light upon the value of the condemned property, notwithstanding any differences
that might exist between them. If it resolves that question affirmatively, it can
admit the evidence. The jury then, on the basis of all the evidence, determines
the extent to which any differences between the condemned property and the
comparable property affect their relative values.” (Los Angeles v. Retlaw
Enterprises, Inc. (1976) 16 Cal.3d 473, 482 [128 Cal.Rptr. 436, 546 P.2d 1380],
original italics.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017), Constitutional Law §§ 1372,
1385
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, § 108
14 California Real Estate Law and Practice, Ch. 508, Evidence: General, § 508.11
(Matthew Bender)
Cotchett, California Courtroom Evidence, Ch. 17, Nonexpert and Expert Opinion,
17.14 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 247, Eminent Domain and
Inverse Condemnation, § 247.147 (Matthew Bender)
3518–3599. Reserved for Future Use
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VF-3500. Fair Market Value Plus Goodwill
We answer the questions submitted to us as follows:
1. What was the fair market value of the property on [insert date of
valuation]? $
Answer question 2.
2. What was the value of the loss of goodwill on [insert date of
valuation]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3501, “Fair Market Value” Explained, and
CACI No. 3513, Goodwill.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3501. Fair Market Value Plus Severance Damages
We answer the questions submitted to us as follows:
1. What was the fair market value of the property taken on [date of
valuation]? $
Answer question 2.
2. What was the fair market value of the remaining property on
[date of valuation]? $
Answer question 3.
3. What would the fair market value of the remaining property
have been on [date of valuation] if the [name of public entity]’s
proposed project were completed as planned?
$
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010, December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 3501, “Fair Market Value” Explained, and
CACI No. 3511, Permanent Severance Damages.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. For example, if the public
entity’s project was completed before the date of valuation, modify question 3
accordingly.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3502. Fair Market Value Plus Loss of Inventory/Personal
Property
We answer the questions submitted to us as follows:
1. What was the fair market value of the property taken on [insert
date of valuation]? $
[Answer question 2.
2. What was the retail value on [insert date of valuation] of the
portion of the lost inventory or personal property that was
unique and not readily replaceable? $ ]
[Answer question 3.
3. What was the wholesale value on [insert date of valuation] of the
portion of the lost inventory or personal property that was
readily replaceable and not unique? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3501, “Fair Market Value” Explained, and
CACI No. 3507, Personal Property and Inventory.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
In an eminent domain action, the jury finds only the amount of compensation.
(Emeryville Redevelopment v. Harcros Pigments (2002) 101 Cal.App.4th 1083, 1116
[125 Cal.Rptr.2d 12].) The court should determine whether there is inventory or
personal property that is unique and not readily replaceable. The jury should then
determine the value of that property.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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EMINENT DOMAIN VF-3502
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3503–VF-3599. Reserved for Future Use
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Copyright Judicial Council of California
CONSPIRACY
3600. Conspiracy—Essential Factual Elements
3601. Ongoing Conspiracy
3602. Affirmative Defense—Agent and Employee Immunity Rule
3603–3609. Reserved for Future Use
3610. Aiding and Abetting Tort—Essential Factual Elements
3611–3699. Reserved for Future Use
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3600. Conspiracy—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of coconspirator]’s [insert tort theory] and that [name of defendant]
is responsible for the harm because [he/she/nonbinary pronoun] was part
of a conspiracy to commit [insert tort theory]. A conspiracy is an
agreement by two or more persons to commit a wrongful act. Such an
agreement may be made orally or in writing or may be implied by the
conduct of the parties.
If you find that [name of coconspirator] committed [a/an] [insert tort
theory] that harmed [name of plaintiff], then you must determine whether
[name of defendant] is also responsible for the harm. [Name of defendant]
is responsible if [name of plaintiff] proves both of the following:
1. That [name of defendant] was aware that [name of coconspirator]
[and others] planned to [insert wrongful act]; and
2. That [name of defendant] agreed with [name of coconspirator] [and
others] and intended that the [insert wrongful act] be committed.
Mere knowledge of a wrongful act without cooperation or an agreement
to cooperate is insufficient to make [name of defendant] responsible for
the harm.
A conspiracy may be inferred from circumstances, including the nature
of the acts done, the relationships between the parties, and the interests
of the alleged coconspirators. [Name of plaintiff] is not required to prove
that [name of defendant] personally committed a wrongful act or that [he/
she/nonbinary pronoun] knew all the details of the agreement or the
identities of all the other participants.
New September 2003
Sources and Authority
• “Conspiracy is not a separate tort, but a form of vicarious liability by which one
defendant can be held liable for the acts of another. . . . A conspiracy requires
evidence ‘that each member of the conspiracy acted in concert and came to a
mutual understanding to accomplish a common and unlawful plan, and that one
or more of them committed an overt act to further it.’ Thus, conspiracy provides
a remedial measure for affixing liability to all who have ‘agreed to a common
design to commit a wrong’ when damage to the plaintiff results. The defendant
in a conspiracy claim must be capable of committing the target tort.” (IIG
Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652 [231 Cal.Rptr.3d 771],
internal citations omitted.)
• “Conspiracy is not a cause of action, but a legal doctrine that imposes liability
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on persons who, although not actually committing a tort themselves, share with
the immediate tortfeasors a common plan or design in its perpetration. By
participation in a civil conspiracy, a coconspirator effectively adopts as his or her
own the torts of other coconspirators within the ambit of the conspiracy. In this
way, a coconspirator incurs tort liability co-equal with the immediate
tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7
Cal.4th 503, 510–511 [28 Cal.Rptr.2d 475, 869 P.2d 454], internal citations
omitted.)
• “While criminal conspiracies involve distinct substantive wrongs, civil
conspiracies do not involve separate torts. The doctrine provides a remedial
measure for affixing liability to all persons who have ‘agreed to a common
design to commit a wrong.’ ” (Choate v. County of Orange (2000) 86
Cal.App.4th 312, 333 [103 Cal.Rptr.2d 339], internal citation omitted.)
• “As long as two or more persons agree to perform a wrongful act, the law places
civil liability for the resulting damage on all of them, regardless of whether they
actually commit the tort themselves. ‘The effect of charging . . . conspiratorial
conduct is to implicate all . . . who agree to the plan to commit the wrong as
well as those who actually carry it out.’ ” (Wyatt v. Union Mortgage Co. (1979)
24 Cal.3d 773, 784 [157 Cal.Rptr. 392, 598 P.2d 45], internal citations omitted.)
• “To support a conspiracy claim, a plaintiff must allege the following elements:
‘(1) the formation and operation of the conspiracy, (2) wrongful conduct in
furtherance of the conspiracy, and (3) damages arising from the wrongful
conduct.’ ” (AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 [157 Cal.Rptr.3d
368].)
• “ ‘[T]he major significance of the conspiracy lies in the fact that it renders each
participant in the wrongful act responsible as a joint tortfeasor for all damages
ensuing from the wrong, irrespective of whether or not he was a direct actor and
regardless of the degree of his activity.’ ” (Applied Equipment Corp., supra, 7
Cal.4th at p. 511, internal citations omitted.)
• “A complaint for civil conspiracy states a cause of action only when it alleges
the commission of a civil wrong that causes damage. Though conspiracy may
render additional parties liable for the wrong, the conspiracy itself is not
actionable without a wrong.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 454
[175 Cal.Rptr. 157, 629 P.2d 1369].)
• “Defendants seem to argue that an action for conspiracy must be based
exclusively on tort principles, not on a statutory violation that provides civil
penalties. No authority is cited for that proposition, and we cannot conceive of a
basis for limiting conspiracy claims in that manner. It is sufficient that a
conspiracy is based on an agreement to engage in unlawful conduct regardless of
whether the conspiracy violates a duty imposed by tort law or a statute.”
(Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1158 [151 Cal.Rptr.3d
683].)
• “[Defendant] finally argues, relying on federal or out-of-state authorities, that
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because [plaintiff] only alleged [driver] was negligent and the evidence does not
permit a finding that either she or [driver] intended to harm anyone, there is no
basis for liability; that there cannot be a civil conspiracy to commit a negligent
act. We acknowledge there is a split within out-of-state authorities, most of
which hold that parties cannot conspire to commit a negligent or unintentional
act and such a conspiracy is a legal impossibility. [¶] But the law in California
remains that a civil conspiracy requires an express or tacit agreement only to
commit a civil wrong or tort, which then renders all participants ‘responsible
. . . for all damages ensuing from the wrong . . . .’ ” (Navarrete v. Meyer
(2015) 237 Cal.App.4th 1276, 1293 [188 Cal.Rptr.3d 623], footnote omitted.)
• “Because civil conspiracy is so easy to allege, plaintiffs have a weighty burden
to prove it. They must show that each member of the conspiracy acted in concert
and came to a mutual understanding to accomplish a common and unlawful plan,
and that one or more of them committed an overt act to further it. It is not
enough that the conspiring officers knew of an intended wrongful act, they had
to agree—expressly or tacitly—to achieve it. Unless there is such a meeting of
the minds, ‘the independent acts of two or more wrongdoers do not amount to a
conspiracy.’ ” (Choate, supra, 86 Cal.App.4th at p. 333, internal citations
omitted.)
• “Conspiracies are typically proved by circumstantial evidence. ‘[S]ince such
participation, cooperation or unity of action is difficult to prove by direct
evidence, it can be inferred from the nature of the act done, the relation of the
parties, the interests of the alleged conspirators, and other circumstances.’ ”
(Rickley, supra, 212 Cal.App.4th at p. 1166, internal citation omitted.)
• “A cause of action for civil conspiracy may not arise . . . if the alleged
conspirator, though a participant in the agreement underlying the injury, was not
personally bound by the duty violated by the wrongdoing . . . .” (Doctors’ Co. v.
Superior Court (1989) 49 Cal.3d 39, 44 [260 Cal.Rptr. 183, 775 P.2d 508],
internal citation omitted.)
• “Conspiracy is not an independent tort; it cannot create a duty or abrogate an
immunity. It allows tort recovery only against a party who already owes the duty
and is not immune from liability based on applicable substantive tort law
principles.” (Applied Equipment Corp., supra, 7 Cal.4th at p. 514, internal
citations omitted.)
• “A conspiracy cannot be alleged as a tort separate from the underlying wrong it
is organized to achieve. As long as the underlying wrongs are subject to
privilege, defendants cannot be held liable for a conspiracy to commit those
wrongs. Acting in concert with others does not destroy the immunity of
defendants.” (McMartin v. Children’s Institute International (1989) 212
Cal.App.3d 1393, 1406 [261 Cal.Rptr. 437], internal citations omitted.)
• “We agree . . . that the general rule is that a party who is not personally bound
by the duty violated may not be held liable for civil conspiracy even though it
may have participated in the agreement underlying the injury. However, an
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exception to this rule exists when the participant acts in furtherance of its own
financial gain.” (Mosier v. Southern California Physicians Insurance Exchange
(1998) 63 Cal.App.4th 1022, 1048 [74 Cal.Rptr.2d 550], internal citations
omitted.)
• “ ‘The basis of a civil conspiracy is the formation of a group of two or more
persons who have agreed to a common plan or design to commit a tortious act.’
The conspiring defendants must also have actual knowledge that a tort is
planned and concur in the tortious scheme with knowledge of its unlawful
purpose.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582
[47 Cal.Rptr.2d 752], internal citations omitted.)
• “Liability as a co-conspirator depends upon projected joint action. ‘The mere
knowledge, acquiescence, or approval of the act, without co-operation or
agreement to cooperate is not enough . . . .’ But once the plan for joint action is
shown, ‘a defendant may be held liable who in fact committed no overt act and
gained no benefit therefrom.’ ” (Wetherton v. Growers Farm Labor Assn. (1969)
275 Cal.App.2d 168, 176 [79 Cal.Rptr. 543], internal citations omitted,
disapproved on another ground in Applied Equipment Corp., supra, 7 Cal.4th at
p. 521, fn. 10.)
• “Furthermore, the requisite concurrence and knowledge ‘may be inferred from
the nature of the acts done, the relation of the parties, the interests of the alleged
conspirators, and other circumstances.’ Tacit consent as well as express approval
will suffice to hold a person liable as a coconspirator.” (Wyatt, supra, 24 Cal.3d
at p. 785, internal citations omitted.)
• “[A]ctual knowledge of the planned tort, without more, is insufficient to serve as
the basis for a conspiracy claim. Knowledge of the planned tort must be
combined with intent to aid in its commission. ‘The sine qua non of a
conspiratorial agreement is the knowledge on the part of the alleged conspirators
of its unlawful objective and their intent to aid in achieving that objective.’ ‘This
rule derives from the principle that a person is generally under no duty to take
affirmative action to aid or protect others.’ ” (Kidron, supra, 40 Cal.App.4th at p.
1582, internal citations omitted.)
• “While knowledge and intent ‘may be inferred from the nature of the acts done,
the relation of the parties, the interest of the alleged conspirators, and other
circumstances,’ ‘[c]onspiracies cannot be established by suspicions. There must
be some evidence. Mere association does not make a conspiracy. There must be
evidence of some participation or interest in the commission of the offense.’ An
inference must flow logically from other facts established in the action.” (Kidron,
supra, 40 Cal.App.4th at p. 1583, internal citations omitted.)
• “[A] nonfiduciary cannot conspire to breach a duty owed only by a fiduciary.”
(American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th
1451, 1474 [171 Cal.Rptr.3d 548].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 151 et seq.
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Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-I, Conspiracy,
¶ 11:167 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and
Related Theories of Joint Liability, § 9.03 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, Conspiracy, § 126.11
(Matthew Bender)
4 California Points and Authorities, Ch. 46, Conspiracy, § 46.20 et seq. (Matthew
Bender)
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3601. Ongoing Conspiracy
If you decide that [name of defendant] joined the conspiracy to commit
[insert tort theory], then [he/she/nonbinary pronoun] is responsible for all
acts done as part of the conspiracy, whether the acts occurred before or
after [he/she/nonbinary pronoun] joined the conspiracy.
New September 2003
Sources and Authority
• “It is the settled rule that ‘to render a person civilly liable for injuries resulting
from a conspiracy of which he was a member, it is not necessary that he should
have joined the conspiracy at the time of its inception; everyone who enters into
such a common design is in law a party to every act previously or subsequently
done by any of the others in pursuance of it.’ Having been found to have joined
and actively participated in the continuing conspiracy to convert, appellant
became liable for the previous acts of his coconspirators under the rules relating
to civil liability, and the fact that some of the missing goods may never have
come into his possession would not absolve him from liability.” (De Vries v.
Brumback (1960) 53 Cal.2d 643, 648 [2 Cal.Rptr. 764, 349 P.2d 532], internal
citations omitted.)
• “It is well settled that a conspirator is liable for all the acts done in furtherance
of a common scheme or plan even though he is not a direct actor. It is equally
well settled that a party may be liable even if the intentional tort is commenced
before he participates, if he, knowing the facts, then participates therein.”
(Peterson v. Cruickshank (1956) 144 Cal.App.2d 148, 168–169 [300 P.2d 915],
internal citations omitted.)
• “[Defendant] could not join in a conspiracy that had been completed.” (Kidron v.
Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1595 [47 Cal.Rptr.2d
752], internal citations omitted.)
Secondary Sources
1 Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and
Related Theories of Joint Liability, § 9.03 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, Conspiracy (Matthew
Bender)
4 California Points and Authorities, Ch. 46, Conspiracy (Matthew Bender)
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3602. Affirmative Defense—Agent and Employee Immunity Rule
[Name of defendant] claims that [he/she/nonbinary pronoun] was not part
of a conspiracy because [he/she/nonbinary pronoun] was acting as an
[agent/employee] of [name of defendant entity]. To succeed, [name of
defendant] must prove both of the following:
1. That [he/she/nonbinary pronoun] was acting in [his/her/nonbinary
pronoun] official capacity on behalf of [name of defendant entity];
and
2. That [he/she/nonbinary pronoun] was not acting to advance [his/
her/nonbinary pronoun] own personal interests.
New September 2003
Directions for Use
This instruction is for use if an individual defendant is alleged to have conspired
with an entity. This instruction is not intended to apply if an individual defendant is
alleged to have conspired with a third party and there is no agency relationship
between them.
Sources and Authority
• “[A]gents or employees of a corporation cannot conspire with the corporation
while acting in their official capacities on behalf of the corporation rather than as
individuals acting for their individual advantage.” (Zumbrun v. University of
Southern California (1972) 25 Cal.App.3d 1, 12 [101 Cal.Rptr. 499], internal
citations omitted.)
• “The rule ‘derives from the principle that ordinarily corporate agents and
employees acting for or on behalf of the corporation cannot be held liable for
inducing a breach of the corporation’s contract since being in a confidential
relationship to the corporation their action in this respect is privileged.’ ”
(Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 512,
fn. 4 [28 Cal.Rptr.2d 475, 869 P.2d 454], internal citations omitted.)
• “A corporation is, of course, a legal fiction that cannot act at all except through
its employees and agents. When a corporate employee acts in the course of his
or her employment, on behalf of the corporation, there is no entity apart from
the employee with whom the employee can conspire. ‘[I]t is basic in the law of
conspiracy that you must have two persons or entities to have a conspiracy. A
corporation cannot conspire with itself any more than a private individual can,
and it is the general rule that the acts of the agent are the acts of the corporation
. . . .’ To hold that a subordinate employee of a corporation can be liable for
conspiring with the corporate principal would destroy what has heretofore been
the settled rule that a corporation cannot conspire with itself.” (Black v. Bank of
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America N.T. & S.A. (1994) 30 Cal.App.4th 1, 6 [35 Cal.Rptr.2d 725], internal
citations and footnote omitted.)
• “[U]nder the agent’s immunity rule, ‘[a] cause of action for civil conspiracy may
not arise . . . if the alleged conspirator, though a participant in the agreement
underlying the injury, was not personally bound by the duty violated by the
wrongdoing and was acting only as the agent or employee of the party who did
have that duty.’ ” (Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1157
[151 Cal.Rptr.3d 683], original italics.)
• “Conspiracy liability may properly be imposed on nonfiduciary agents or
attorneys for conduct which they carry out not simply as agents or employees of
fiduciary defendants, but in furtherance of their own financial gain.” (Skarbrevik
v. Cohen (1991) 231 Cal.App.3d 692, 709 [282 Cal.Rptr. 627].)
Secondary Sources
1 Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and
Related Theories of Joint Liability, § 9.03[3][b] (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, § 126.11 Conspiracy
(Matthew Bender)
4 California Points and Authorities, Ch. 46, § 46.21 et seq. Conspiracy (Matthew
Bender)
3603–3609. Reserved for Future Use
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3610. Aiding and Abetting Tort—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of actor]’s [insert tort theory, e.g., assault and battery] and that
[name of defendant] is responsible for the harm because [he/she/nonbinary
pronoun] aided and abetted [name of actor] in committing the [e.g.,
assault and battery].
If you find that [name of actor] committed [a/an] [e.g., assault and battery]
that harmed [name of plaintiff], then you must determine whether [name
of defendant] is also responsible for the harm. [Name of defendant] is
responsible as an aider and abetter if [name of plaintiff] proves all of the
following:
1. That [name of defendant] knew that [a/an] [e.g., assault and
battery] was [being/going to be] committed by [name of actor]
against [name of plaintiff];
2. That [name of defendant] gave substantial assistance or
encouragement to [name of actor]; and
3. That [name of defendant]’s conduct was a substantial factor in
causing harm to [name of plaintiff].
Mere knowledge that [a/an] [e.g., assault and battery] was [being/going to
be] committed and the failure to prevent it do not constitute aiding and
abetting.
New April 2008; Revised December 2015
Directions for Use
Give this instruction if the plaintiff seeks to hold a defendant responsible for the tort
of another on a theory of aiding and abetting, whether or not the active tortfeasor is
also a defendant.
Some cases seem to hold that in addition to the elements of knowledge and
substantial assistance, a complaint must allege the aider and abettor had the specific
intent to facilitate the wrongful conduct. (See Schulz v. Neovi Data Corp. (2007)
152 Cal.App.4th 86, 95 [60 Cal.Rptr.3d 810].)
It appears that one may be liable as an aider and abetter of a negligent act. (See
Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1290 [188 Cal.Rptr.3d 623];
Orser v. George (1967) 252 Cal.App.2d 660, 668 [60 Cal.Rptr. 708].)
Sources and Authority
• “The jury was also instructed on aiding and abetting, as follows: ‘A person aids
and abets the commission of a crime when he or she: [¶] (1) With knowledge of
the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of
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committing or encouraging or facilitating the commission of the crime, and [¶]
(3) By act or advice aids, promotes, encourages or instigates the commission of
the crime. [¶] A person who aids and abets the commission of a crime need not
be present at the scene of the crime. [¶] Mere presence at the scene of a crime
which does not itself assist the commission of the crime does not amount to
aiding and abetting. [¶] Mere knowledge that a crime is being committed and the
failure to prevent it does not amount to aiding and abetting.” (Casella v.
SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1140–1141 [69
Cal.Rptr.3d 445].)
• “The elements of a claim for aiding and abetting a breach of fiduciary duty are:
(1) a third party’s breach of fiduciary duties owed to plaintiff; (2) defendant’s
actual knowledge of that breach of fiduciary duties; (3) substantial assistance or
encouragement by defendant to the third party’s breach; and (4) defendant’s
conduct was a substantial factor in causing harm to plaintiff. (Judicial Council of
Cal., Civ. Jury Instns. (CACI) (2014) No. 3610 . . .).” (Nasrawi v. Buck
Consultants LLC (2014) 231 Cal.App.4th 328, 343 [179 Cal.Rptr.3d 813].)
• “[C]ausation is an essential element of an aiding and abetting claim, i.e., plaintiff
must show that the aider and abettor provided assistance that was a substantial
factor in causing the harm suffered.” (American Master Lease LLC v. Idanta
Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1476 [171 Cal.Rptr.3d 548].)
• “The fact the instruction [CACI No. 3610] does not use the word ‘intent’ is not
determinative. ‘California courts have long held that liability for aiding and
abetting depends on proof the defendant had actual knowledge of the specific
primary wrong the defendant substantially assisted. . . . “The words ‘aid and
abet’ as thus used have a well understood meaning, and may fairly be construed
to imply an intentional participation with knowledge of the object to be
attained.” [Citation.]’ A defendant who acts with actual knowledge of the
intentional wrong to be committed and provides substantial assistance to the
primary wrongdoer is not an accidental participant in the enterprise.” (Upasani v.
State Farm General Ins. Co. (2014) 227 Cal.App.4th 509, 519 [173 Cal.Rptr.3d
784], original italics, internal citations omitted.)
• “As noted, some cases suggest that a plaintiff also must plead specific intent to
facilitate the underlying tort. We need not decide whether specific intent is a
required element because, read liberally, the fifth amended complaint alleges that
[defendant] intended to assist the Association in breaching its fiduciary duties. In
particular, plaintiffs allege that, with knowledge of the Association’s breaches,
[defendant] ‘gave substantial encouragement and assistance to [the Association]
to breach its fiduciary duties.’ Fairly read, that allegation indicates intent to
participate in tortious activity.” (Nasrawi, supra, 231 Cal.App.4th at p. 345,
original italics, internal citations omitted.)
• “[W]e consider whether the complaint states a claim based upon ‘concert of
action’ among defendants. The elements of this doctrine are prescribed in section
876 of the Restatement Second of Torts. The section provides, ‘For harm
resulting to a third person from the tortious conduct of another, one is subject to
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liability if he (a) does a tortious act in concert with the other or pursuant to a
common design with him, or (b) knows that the other’s conduct constitutes a
breach of duty and gives substantial assistance or encouragement to the other so
to conduct himself, or (c) gives substantial assistance to the other in
accomplishing a tortious result and his own conduct, separately considered,
constitutes a breach of duty to the third person.’ With respect to this doctrine,
Prosser states that ‘those who, in pursuance of a common plan or design to
commit a tortious act, actively take part in it, or further it by cooperation or
request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt
his acts done for their benefit, are equally liable with him. [para.] Express
agreement is not necessary, and all that is required is that there be a tacit
understanding . . . .’ ” (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 604
[163 Cal.Rptr. 132, 607 P.2d 924], internal citations omitted.)
• “Liability may . . . be imposed on one who aids and abets the commission of an
intentional tort if the person (a) knows the other’s conduct constitutes a breach
of duty and gives substantial assistance or encouragement to the other to so act
or (b) gives substantial assistance to the other in accomplishing a tortious result
and the person’s own conduct, separately considered, constitutes a breach of duty
to the third person.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630,
653–654 [231 Cal.Rptr.3d 771].)
• “Restatement Second of Torts . . . recognizes a cause of action for aiding and
abetting in a civil action when it provides: ‘For harm resulting to a third person
from the tortious conduct of another, one is subject to liability if he [¶] . . . [¶]
(b) knows that the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself . . . .’
‘Advice or encouragement to act operates as a moral support to a tortfeasor and
if the act encouraged is known to be tortious it has the same effect upon the
liability of the adviser as participation or physical assistance . . . . It likewise
applies to a person who knowingly gives substantial aid to another who, as he
knows, intends to do a tortious act.’ ” (Schulz, supra, 152 Cal.App.4th at pp.
93–94, internal citations omitted.)
• “California courts have long held that liability for aiding and abetting depends
on proof the defendant had actual knowledge of the specific primary wrong the
defendant substantially assisted . . . . ‘The words “aid and abet” as thus used
have a well understood meaning, and may fairly be construed to imply an
intentional participation with knowledge of the object to be attained.’ ” (Casey v.
U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145–1146 [26 Cal.Rptr.3d
401], original italics, internal citations omitted.)
• “ ‘Mere knowledge that a tort is being committed and the failure to prevent it
does not constitute aiding and abetting. “As a general rule, one owes no duty to
control the conduct of another . . . .” More specifically, a supervisor is not liable
to third parties for the acts of his or her subordinates.’ ” (Austin B. v. Escondido
Union School Dist. (2007) 149 Cal.App.4th 860, 879 [57 Cal.Rptr.3d 454],
internal citations omitted.)
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• “ ‘In the civil arena, an aider and abettor is called a cotortfeasor. To be held
liable as a cotortfeasor, a defendant must have knowledge and intent . . . . A
defendant can be held liable as a cotortfeasor on the basis of acting in concert
only if he or she knew that a tort had been, or was to be, committed, and acted
with the intent of facilitating the commission of that tort.’ Of course, a defendant
can only aid and abet another’s tort if the defendant knows what ‘that tort’
is . . . . [T]he defendant must have acted to aid the primary tortfeasor ‘with
knowledge of the object to be attained.’ ” (Casey, supra, 127 Cal.App.4th at p.
1146, original italics, internal citations omitted.)
• “The concert of action theory of group liability ‘may be used to impose liability
on a person who did not personally cause the harm to plaintiff, but whose
“ ‘[a]dvice or encouragement to act operates as a moral support to a tortfeasor[,]
and if the act encouraged is known to be tortious[,] it has the same effect upon
the liability of the adviser as participation or physical assistance. If the
encouragement or assistance is a substantial factor in causing the resulting tort,
the one giving it is himself a tortfeasor and is responsible for the consequences
of the other’s act.’ ” ’ The doctrine is likened to aiding and abetting.” (Navarrete,
supra, 237 Cal.App.4th at p. 1286.)
• “ ‘Despite some conceptual similarities, civil liability for aiding and abetting the
commission of a tort, which has no overlaid requirement of an independent duty,
differs fundamentally from liability based on conspiracy to commit a tort.
[Citations.] “ ‘[A]iding-abetting focuses on whether a defendant knowingly gave
“substantial assistance” to someone who performed wrongful conduct, not on
whether the defendant agreed to join the wrongful conduct.’ ” ’ ” (Stueve Bros.
Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 324 [166 Cal.Rptr.3d
116].)
• “ ‘[W]hile aiding and abetting may not require a defendant to agree to join the
wrongful conduct, it necessarily requires a defendant to reach a conscious
decision to participate in tortious activity for the purpose of assisting another in
performing a wrongful act. . . .’ [Citation.] The aider and abetter’s conduct need
not, as ‘separately considered,’ constitute a breach of duty.” (American Master
Lease LLC, supra, 225 Cal.App.4th at pp. 1475–1476.)
• “Nor do we agree with [defendant]’s contention that there is no evidence she
aided and abetted [tortfeasor]. Her claim is premised on the assertion that the
law in California does not permit liability for aiding and abetting ‘unintentional
conduct’; that [plaintiff] alleged no intentional tort, only that [tortfeasor] acted
negligently, and there is no evidence he intended to harm anyone. She argues,
‘Even if [tortfeasor] inadvertently violated the law against an “exhibition of
speed,” which he did not, [defendant] could not be liable for aiding and abetting
such unintentional conduct.’ However, for purposes of joint liability under a
concert of action theory, it suffices that [defendant] assist or encourage
[tortfeasor]’s breach of a duty, which Vehicle Code section 23109 imposed upon
him (and also upon her not to aid and abet [tortfeasor]).” (Navarrete, supra, 237
Cal.App.4th at p. 1290.)
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• “James too must be held as a defendant because, although he did not fire the
fatal bullet, there is evidence (which may or may not be suffıcient to prove him
liable at the trial) creating a question for the trier of fact. This evidence
indicates he was firing alternately with Vierra at the same mudhen, in the same
line of fire and possibly tortiously. In other words (to paraphrase the Restatement
. . .), the record permits a possibility James knew Vierra’s conduct constituted a
breach of duty owed Orser and that James was giving Vierra substantial
‘assistance or encouragement’; also that this was substantial assistance to Vierra
in a tortious result with James’ own conduct, ‘separately considered, constituting
a breach of duty to’ Orser.” (Orser, supra, 252 Cal.App.2d at p. 668, original
italics; see also Rest. 2d Torts, § 876, Com. on Clause (b), Illustration 6.)
• “Because transferring funds in order to evade creditors constitutes an intentional
tort, it logically follows that California common law should recognize liability
for aiding and abetting a fraudulent transfer.” (Berger v. Varum (2019) 35
Cal.App.5th 1013, 1025 [248 Cal.Rptr.3d 51].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 149, 150
1 Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and
Related Theories of Joint Liability, §§ 9.01, 9.02 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, Conspiracy, §§ 126.10,
126.11 (Matthew Bender)
4 California Points and Authorities, Ch. 46, Conspiracy, § 46.04 (Matthew Bender)
3611–3699. Reserved for Future Use
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VICARIOUS RESPONSIBILITY
3700. Introduction to Vicarious Responsibility
3701. Tort Liability Asserted Against Principal—Essential Factual Elements
3702. Affirmative Defense—Comparative Fault of Plaintiff’s Agent
3703. Legal Relationship Not Disputed
3704. Existence of “Employee” Status Disputed
3705. Existence of “Agency” Relationship Disputed
3706. Special Employment—Lending Employer Denies Responsibility for
Worker’s Acts
3707. Special Employment—Joint Responsibility
3708. Peculiar-Risk Doctrine
3709. Ostensible Agent
3710. Ratification
3711. Partnerships
3712. Joint Ventures
3713. Nondelegable Duty
3714. Ostensible Agency—Physician-Hospital Relationship
3715–3719. Reserved for Future Use
3720. Scope of Employment
3721. Scope of Employment—Peace Officer’s Misuse of Authority
3722. Scope of Employment—Unauthorized Acts
3723. Substantial Deviation
3724. Social or Recreational Activities
3725. Going-and-Coming Rule—Vehicle-Use Exception
3726. Going-and-Coming Rule—Business-Errand Exception
3727. Going-and-Coming Rule—Compensated Travel Time Exception
3728–3799. Reserved for Future Use
VF-3700. Negligence—Vicarious Liability
VF-3701–VF-3799. Reserved for Future Use
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3700. Introduction to Vicarious Responsibility
[One may authorize another to act on one’s behalf in transactions with
third persons. This relationship is called “agency.” The person giving the
authority is called the “principal”; the person to whom authority is given
is called the “agent.”]
[An employer/A principal] is responsible for harm caused by the
wrongful conduct of [his/her/nonbinary pronoun/its] [employees/agents]
while acting within the scope of their [employment/authority].
[An [employee/agent] is always responsible for harm caused by [his/her/
nonbinary pronoun/its] own wrongful conduct, whether or not the
[employer/principal] is also liable.]
New September 2003; Revised June 2015, May 2020
Directions for Use
This instruction provides the jury with some basic background information about the
doctrine of respondeat superior. Include the first paragraph if the relationship at
issue is one of principal-agent. If the employee or agent is also a defendant, give the
third paragraph.
This instruction should be followed by either CACI No. 3703, Legal Relationship
Not Disputed, CACI No. 3704, Existence of “Employee” Status Disputed, or CACI
No. 3705, Existence of “Agency” Relationship Disputed.
Sources and Authority
• “Agency” Defined. Civil Code section 2295.
• Principal’s Responsibility for Acts of Agent. Civil Code section 2338.
• “Agency is the relation that results from the act of one person, called the
principal, who authorizes another, called the agent, to conduct one or more
transactions with one or more third persons and to exercise a degree of
discretion in effecting the purpose of the principal.” (L. Byron Culver &
Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 304
[1 Cal.Rptr.2d 680].)
• “ ‘ “An agent ‘is anyone who undertakes to transact some business, or manage
some affair, for another, by authority of and on account of the latter, and to
render an account of such transactions.’ [Citation.] ‘The chief characteristic of
the agency is that of representation, the authority to act for and in the place of
the principal for the purpose of bringing him or her into legal relations with
third parties. [Citations.]’ [Citation.] ‘The significant test of an agency
relationship is the principal’s right to control the activities of the agent.’ ” ’ ”
(Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150,
1171−1172 [201 Cal.Rptr.3d 390].)
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• “Under the doctrine of respondeat superior, an employer is vicariously liable for
his employee’s torts committed within the scope of the employment. This
doctrine is based on “ ‘a rule of policy, a deliberate allocation of a risk. The
losses caused by the torts of employees, which as a practical matter are sure to
occur in the conduct of the employer’s enterprise, are placed upon that enterprise
itself, as a required cost of doing business.” ’ ” (Perez v. Van Groningen & Sons,
Inc. (1986) 41 Cal.3d 962, 967 [227 Cal.Rptr. 106, 719 P.2d 676].)
• “ ‘[A] principal is liable to third parties . . . for the frauds or other wrongful
acts committed by [its] agent in and as a part of the transaction of’ the business
of the agency.” (Daniels, supra, 246 Cal.App.4th at p. 1172.)
• “[U]nder the Tort Claims Act, public employees are liable for injuries caused by
their acts and omissions to the same extent as private persons. Vicarious liability
is a primary basis for liability on the part of a public entity, and flows from the
responsibility of such an entity for the acts of its employees under the principle
of respondeat superior. As the Act provides, ‘[a] public entity is liable for injury
proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would . . . have
given rise to a cause of action against that employee,’ unless ‘the employee is
immune from liability.’ (Gov. Code, § 815.2, subds. (a), (b).)” (Zelig v. County of
Los Angeles (2002) 27 Cal.4th 1112, 1128 [119 Cal.Rptr.2d 709, 45 P.3d 1171],
internal citations omitted.)
• “[W]here the liability of an employer in tort rests solely on the doctrine of
respondeat superior, a judgment on the merits in favor of the employee is a bar
to an action against the employer . . . .” (Hilts v. County of Solano (1968) 265
Cal.App.2d 161, 176 [71 Cal.Rptr. 275].)
• “An agent or employee is always liable for his own torts, whether his employer
is liable or not.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403,
1411 [178 Cal.Rptr.3d 18].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 173–178
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, §§ 8.03–8.04 (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.11 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.14 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.24A (Matthew Bender)
California Civil Practice: Torts §§ 3:1–3:4 (Thomson Reuters)
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3701. Tort Liability Asserted Against Principal—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of agent]’s [insert tort theory, e.g., “negligence”].
[Name of plaintiff] also claims that [name of defendant] is responsible for
the harm because [name of agent] was acting as [his/her/nonbinary
pronoun/its] [agent/employee/[insert other relationship, e.g., “partner”]]
when the incident occurred.
If you find that [name of agent]’s [insert tort theory] harmed [name of
plaintiff], then you must decide whether [name of defendant] is responsible
for the harm. [Name of defendant] is responsible if [name of plaintiff]
proves both of the following:
1. That [name of agent] was [name of defendant]’s [agent/employee/
[insert other relationship]]; and
2. That [name of agent] was acting within the scope of
[his/her/nonbinary pronoun] [agency/employment/[insert other
relationship]] when [he/she/nonbinary pronoun] harmed [name of
plaintiff].
New September 2003
Directions for Use
The term “name of agent,” in brackets, is intended in the general sense, to denote
the person or entity whose wrongful conduct is alleged to have created the
principal’s liability.
Under other principles of law, a principal may be directly liable for authorizing or
directing an agent’s wrongful acts. (See 3 Witkin, Summary of Cal. Law (11th ed.
2017) Agency and Employment, § 173.)
One of the two bracketed first sentences would be used, depending on whether the
plaintiff is suing both the principal and the agent or the principal alone.
If there is no issue regarding whether a principal-agent exists, see CACI No. 3703,
Legal Relationship Not Disputed.
This instruction may not apply if employer liability is statutory, such as under the
Fair Employment and Housing Act.
Sources and Authority
• “Agent” Defined. Civil Code section 2295.
• “ ‘An agent is one who represents another, called the principal, in dealings with
third persons. Such representation is called agency.’ ‘An agent for a particular
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act or transaction is called a special agent. All others are general agents.’ ‘An
agency relationship “may be implied based on conduct and circumstances.” ’ ”
(Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262
[225 Cal.Rptr.3d 305], internal citations omitted.)
• “The rule of respondeat superior is familiar and simply stated: an employer is
vicariously liable for the torts of its employees committed within the scope of
the employment. Equally well established, if somewhat surprising on first
encounter, is the principle that an employee’s willful, malicious and even
criminal torts may fall within the scope of his or her employment for purposes
of respondeat superior, even though the employer has not authorized the
employee to commit crimes or intentional torts.” (Lisa M. v. Henry Mayo
Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297 [48 Cal.Rptr.2d
510, 907 P.2d 358], internal citations and footnote omitted.)
• “It is a settled rule of the law of agency that a principal is responsible to third
persons for the ordinary contracts and obligations of his agent with third persons
made in the course of the business of the agency and within the scope of the
agent’s powers as such, although made in the name of the agent and not
purporting to be other than his own personal obligation or contract.” (Daniels v.
Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1178 [201
Cal.Rptr.3d 390].)
• “The employer is liable not because the employer has control over the employee
or is in some way at fault, but because the employer’s enterprise creates
inevitable risks as a part of doing business.” (Bailey v. Filco, Inc. (1996) 48
Cal.App.4th 1552, 1559 [56 Cal.Rptr.2d 333], internal citations omitted.)
• “Respondeat superior is based on a ‘deeply rooted sentiment’ that it would be
unjust for an enterprise to disclaim responsibility for injuries occurring in the
course of its characteristic activities.” (Mary M. v. City of Los Angeles (1991) 54
Cal.3d 202, 208 [285 Cal.Rptr. 99, 814 P.2d 1341], internal citation omitted.)
• “[The Supreme Court has] articulated three reasons for applying the doctrine of
respondeat superior: (1) to prevent recurrence of the tortious conduct; (2) to give
greater assurance of compensation for the victim; and (3) to ensure that the
victim’s losses will be equitably borne by those who benefit from the enterprise
that gave rise to the injury.” (Mary M., supra, 54 Cal.3d at p. 209.)
• “[A] principal is charged only with the knowledge of an agent acquired while
the agent was acting in that role and within the scope of his or her authority as
an agent.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1099 [223
Cal.Rptr.3d 458].)
• “[A] relationship of agency always ‘contemplates three parties—the principal,
the agent, and the third party with whom the agent is to deal.’ ” (RSB Vineyards,
LLC, supra, 15 Cal.App.5th at p. 1100.)
• “[A] principal may be liable for the wrongful conduct of its agent, even if that
conduct is criminal, in one of three ways: (1) if the ‘ “principal directly
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authorizes . . . [the tort or] crime to be committed” ’; (2) if the agent commits
the tort ‘in the scope of his employment and in performing service on behalf of
the principal’, ‘regardless of whether the wrong is authorized or ratified by [the
principal];, and even if the wrong is criminal; or (3) if the principal ratifies its
agent’s conduct ‘after the fact by . . . voluntar[ily] elect[ing] to adopt the
[agent’s] conduct . . . as its own’ ” (Doe v. Roman Catholic Archbishop of Los
Angeles (2016) 247 Cal.App.4th 953, 969 [202 Cal.Rptr.3d 414], internal
citations omitted.)
• “The employee need not have intended to further the employer’s interest for the
employer to be liable if there is a ‘causal nexus’ between the intentional tort and
the employee’s work. The connection or causal nexus required for respondeat
superior liability is the tort must have been engendered by or arise from the
work. The required connection has been described as (1) ‘the incident leading to
injury must be an “outgrowth” of the employment’; (2) ‘the risk of tortious
injury is ‘ “ ‘inherent in the working environment’ ” ’; (3) the risk of tortious
injury is ‘ “ ‘typical of or broadly incidental to the enterprise [the employer] has
undertaken’ ” ’ or (4) ‘the tort was, in a general way, foreseeable from the
employee’s duties.’ ” (Crouch v. Trinity Christian Center of Santa Ana, Inc.
(2019) 39 Cal.App.5th 995, 1015 [253 Cal.Rptr.3d 1], internal citations omitted.)
• “[W]here recovery of damages is sought against a principal and an agent, and
the negligence of the agent is the cause of the injury, a verdict releasing the
agent from liability releases the principal.” (Lehmuth v. Long Beach Unified
School Dist. (1960) 53 Cal.2d 544, 550 [2 Cal.Rptr. 279, 348 P.2d 887].)
• The doctrine of respondeat superior applies equally to public and private
employers. (Mary M., supra, 54 Cal.3d at p. 209.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 173–178
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, ¶ 2:600 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, §§ 8.03–8.04 (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.01 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.14 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.20 et seq. (Matthew Bender)
California Civil Practice: Torts §§ 3:1–3:4 (Thomson Reuters)
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3702. Affirmative Defense—Comparative Fault of Plaintiff’s Agent
[Name of defendant] claims that the negligence of [name of plaintiff’s
agent] contributed to [name of plaintiff principal]’s harm. To succeed on
this claim, [name of defendant] must prove all of the following:
1. That [name of plaintiff’s agent] was acting as [name of plaintiff
principal]’s [agent/employee/[insert other relationship, e.g.,
“partner”]];
2. That [name of plaintiff’s agent] was acting within the scope of [his/
her/nonbinary pronoun] [agency/employment/[insert other
relationship]] when the incident occurred; and
3. That the negligence of [name of plaintiff’s agent] was a substantial
factor in causing [name of plaintiff principal]’s harm.
If [name of defendant] proves the above, [name of plaintiff principal]’s
claim is reduced by your determination of the percentage of [name of
plaintiff’s agent]’s responsibility. I will calculate the actual reduction.
New September 2003; Revised December 2009
Directions for Use
This instruction may be used by a defendant against a principal/employer to assert
the comparative fault of an agent/employee. For example, in an automobile accident
lawsuit brought by a corporate plaintiff, the defendant may use this instruction to
assert that the negligence of the plaintiff’s employee/driver contributed to causing
the accident.
Sources and Authority
• The doctrine of respondeat superior is not limited to the principal’s responsibility
for injuries to third parties. A defendant also can use the doctrine to support a
claim of contributory negligence against a plaintiff principal if the plaintiff’s
agent was contributorily negligent. (See 6 Witkin, Summary of Cal. Law (11th
ed. 2017) Torts, § 1481.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1481
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.08 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.19 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.23 (Matthew Bender)
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10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.43 (Matthew Bender)
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3703. Legal Relationship Not Disputed
In this case [name of agent] was the [employee/agent/[insert other
relationship, e.g., “partner”]] of [name of defendant].
If you find that [name of agent] was acting within the scope of [his/her/
nonbinary pronoun] [employment/agency/[insert other relationship]] when
the incident occurred, then [name of defendant] is responsible for any
harm caused by [name of agent]’s [insert applicable tort theory, e.g.,
“negligence”].
New September 2003
Directions for Use
The term “name of agent,” in brackets, is intended in the general sense, to denote
the person or entity whose wrongful conduct is alleged to have created the
principal’s liability.
Under other principles of law, a principal may be directly liable for authorizing or
directing an agent’s wrongful acts. (See 3 Witkin, Summary of Cal. Law (11th ed.
2017) Agency and Employment, § 173.)
This instruction may not apply where employer liability is statutory, such as under
the Fair Employment and Housing Act.
Sources and Authority
• Ordinarily, the question of agency is one of fact; however, where the evidence is
undisputed the issue becomes one of law. (Mantonya v. Bratlie (1948) 33 Cal.2d
120, 128–129 [199 P.2d 677].)
• This instruction may be appropriate in cases where vicarious liability is asserted
in the context of employment, since agency and employment are often viewed as
synonymous. Witkin observes: “There is seldom any reason to distinguish
between the service of an agent and that of an employee . . . . [However, t]he
two relationships are not considered identical. It is said that an employee works
for the employer, while an agent also acts for and in the place of the principal
for the purpose of bringing the principal into legal relations with third persons.”
(3 Witkin, Summary of Cal. Law (11th ed. 2017), Agency and Employment,
§ 4.)
• “It is settled that for purposes of liability to third parties for torts, a real estate
salesperson is the agent of the broker who employs him or her. The broker is
liable as a matter of law for all damages caused to third persons by the tortious
acts of the salesperson committed within the course and scope of employment.”
(California Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575, 1581
[23 Cal.Rptr.2d 462], internal citations omitted.)
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Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 2–4
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, §§ 8.01–8.03 (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent
(Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
California Civil Practice: Torts § 3:1 (Thomson Reuters)
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3704. Existence of “Employee” Status Disputed
[Name of plaintiff] must prove that [name of agent] was [name of
defendant]’s employee.
In deciding whether [name of agent] was [name of defendant]’s employee,
the most important factor is whether [name of defendant] had the right to
control how [name of agent] performed the work, rather than just the
right to specify the result. One indication of the right to control is that
the hirer can discharge the worker [without cause]. It does not matter
whether [name of defendant] exercised the right to control.
In deciding whether [name of defendant] was [name of agent]’s employer,
in addition to the right of control, you must consider the full nature of
their relationship. You should take into account the following additional
factors, which, if true, may show that [name of defendant] was the
employer of [name of agent]. No one factor is necessarily decisive. Do not
simply count the number of applicable factors and use the larger
number to make your decision. It is for you to determine the weight and
importance to give to each of these additional factors based on all of the
evidence.
(a) [Name of defendant] supplied the equipment, tools, and place of
work;
(b) [Name of agent] was paid by the hour rather than by the job;
(c) [Name of defendant] was in business;
(d) The work being done by [name of agent] was part of the regular
business of [name of defendant];
(e) [Name of agent] was not engaged in a distinct occupation or
business;
(f) The kind of work performed by [name of agent] is usually done
under the direction of a supervisor rather than by a specialist
working without supervision;
(g) The kind of work performed by [name of agent] does not require
specialized or professional skill;
(h) The services performed by [name of agent] were to be performed
over a long period of time; [and]
(i) [Name of defendant] and [name of agent] believed that they had an
employer-employee relationship[./; and]
(j) [Specify other factor].
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New September 2003; Revised December 2010, June 2015, December 2015,
November 2018, May 2020, May 2021
Directions for Use
This instruction is based on S. G. Borello & Sons, Inc. v. Department of Industrial
Relations (1989) 48 Cal.3d 341, 354–355 [256 Cal.Rptr. 543, 769 P.2d 399] and the
Restatement Second of Agency, section 220. It is sometimes referred to as the
Borello test or the common law test. (See Dynamex Operations West, Inc. v.
Superior Court (2018) 4 Cal.5th 903, 934 [232 Cal.Rprt.3d 1, 416 P.3d 1].) It is
intended to address the employer-employee relationship for purposes of assessing
vicarious responsibility on the employer for the employee’s acts. Most of the factors
are less appropriate for analyzing other types of agency relationships, such as
franchisor/franchisee. For an instruction more appropriate to these kinds of
relationships, see CACI No. 3705, Existence of “Agency” Relationship Disputed.
Secondary factors (a)–(i) come from the Restatement section 220. (See also Ayala v.
Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 532 [173 Cal.Rptr.3d 332,
327 P.3d 165]; Rest.3d Agency, § 7.07, com. f,) They have been phrased so that a
yes answer points toward an employment relationship. Omit any that are not
relevant. Additional factors have been endorsed by the California Supreme Court
and may be included if applicable. (See S. G. Borello & Sons, Inc., supra, 48 Cal.3d
at pp. 354–355.) Therefore, an “other” option (j) has been included.
Borello was a workers’ compensation case. In Dynamex, supra, the court, in holding
that Borello did not control the specific wage order dispute at issue, noted that “it
appears more precise to describe Borello as calling for resolution of the employee or
independent contractor question by focusing on the intended scope and purposes of
the particular statutory provision or provisions at issue.” (Dynamex, supra, 4 Cal.5th
at p. 934.) The court also said that “[t]he Borello decision repeatedly emphasizes
statutory purpose as the touchstone for deciding whether a particular category of
workers should be considered employees rather than independent contractors for
purposes of social welfare legislation.” (Id. at p. 935.) With respondeat superior,
there is no statutory provision or social welfare legislation to be considered. (Cf.
Lab. Code, § 2775 [codifying Dynamex for purposes of the provisions of the Labor
Code, the Unemployment Insurance Code, and the wage orders of the Industrial
Welfare Commission, with limited exceptions for specified occupations].)
A different test for the existence of “independent contractor” status applies to app-
based rideshare and delivery drivers. (See Bus. & Prof. Code, § 7451.)
Sources and Authority
• Principal-Agent Relationship. Civil Code section 2295.
• Rebuttable Presumption that Contractor Is Employee Rather Than Independent
Contractor; Proof of Independent Contractor Status. Labor Code section 2750.5.
• “[S]ubject to certain policy considerations, a hirer . . . cannot be held
vicariously liable for the negligence of his independent contractors.” (Blackwell
v. Vasilas (2016) 244 Cal.App.4th 160, 168 [197 Cal.Rptr.3d 753].)
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• “Whether a common law employer-employee relationship exists turns foremost
on the degree of a hirer’s right to control how the end result is achieved.”
(Ayala, supra, 59 Cal.4th at p. 528.)
• “However, the courts have long recognized that the ‘control’ test, applied rigidly
and in isolation, is often of little use in evaluating the infinite variety of service
arrangements. While conceding that the right to control work details is the ‘most
important’ or ‘most significant’ consideration, the authorities also endorse several
‘secondary’ indicia of the nature of a service relationship.” (S. G. Borello &
Sons, Inc., supra, 48 Cal.3d at p. 350, internal citations omitted.)
• “While the extent of the hirer’s right to control the work is the foremost
consideration in assessing whether a common law employer-employee
relationship exists, our precedents also recognize a range of secondary indicia
drawn from the Second and Third Restatements of Agency that may in a given
case evince an employment relationship. Courts may consider ‘(a) whether the
one performing services is engaged in a distinct occupation or business; (b) the
kind of occupation, with reference to whether, in the locality, the work is usually
done under the direction of the principal or by a specialist without supervision;
(c) the skill required in the particular occupation; (d) whether the principal or the
worker supplies the instrumentalities, tools, and the place of work for the person
doing the work; (e) the length of time for which the services are to be
performed; (f) the method of payment, whether by the time or by the job; (g)
whether or not the work is a part of the regular business of the principal; and (h)
whether or not the parties believe they are creating the relationship of employer-
employee.’ ” (Ayala, supra, 59 Cal.4th at p. 532.)
• “ ‘Generally, . . . the individual factors cannot be applied mechanically as
separate tests; they are intertwined and their weight depends often on particular
combinations.’ ” (S. G. Borello & Sons, Inc., supra, 48 Cal.3d at p. 351, internal
citations omitted.)
• “[T]he Restatement guidelines heretofore approved in our state remain a useful
reference.” (S. G. Borello & Sons, Inc., supra, 48 Cal.3d at p. 354.)
• “We also note the six-factor test developed by other jurisdictions which
determine independent contractorship in light of the remedial purposes of the
legislation. Besides the ‘right to control the work,’ the factors include (1) the
alleged employee’s opportunity for profit or loss depending on his managerial
skill; (2) the alleged employee’s investment in equipment or materials required
for his task, or his employment of helpers; (3) whether the service rendered
requires a special skill; (4) the degree of permanence of the working
relationship; and (5) whether the service rendered is an integral part of the
alleged employer’s business. [¶] As can be seen, there are many points of
individual similarity between these guidelines and our own traditional
Restatement tests. We find that all are logically pertinent to the inherently
difficult determination whether a provider of service is an employee or an
excluded independent contractor for purposes of workers’ compensation law.” (S.
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G. Borello & Sons, Inc., supra, 48 Cal.3d at pp. 354–355, internal cross-
reference omitted.)
• “[A]t common law the problem of determining whether a worker should be
classified as an employee or an independent contractor initially arose in the tort
context—in deciding whether the hirer of the worker should be held vicariously
liable for an injury that resulted from the worker’s actions. In the vicarious
liability context, the hirer’s right to supervise and control the details of the
worker’s actions was reasonably viewed as crucial, because ‘ “[t]he extent to
which the employer had a right to control [the details of the service] activities
was . . . highly relevant to the question whether the employer ought to be
legally liable for them . . . .” ’ For this reason, the question whether the hirer
controlled the details of the worker’s activities became the primary common law
standard for determining whether a worker was considered to be an employee or
an independent contractor.” (Dynamex, supra, 4 Cal.5th at p. 927, internal
citations omitted.)
• “[A]lthough we have sometimes characterized Borello as embodying the
common law test or standard for distinguishing employees and independent
contractors, it appears more precise to describe Borello as calling for resolution
of the employee or independent contractor question by focusing on the intended
scope and purposes of the particular statutory provision or provisions at issue. In
other words, Borello calls for application of a statutory purpose standard that
considers the control of details and other potentially relevant factors identified in
prior California and out-of-state cases in order to determine which classification
(employee or independent contractor) best effectuates the underlying legislative
intent and objective of the statutory scheme at issue.” (Dynamex, supra, 4
Cal.5th at p. 934, original italics, internal citation omitted.)
• “The trial court’s determination of employee or independent contractor status is
one of fact if it depends upon the resolution of disputed evidence or inferences.
‘ “Even in cases where the evidence is undisputed or uncontradicted, if two or
more different inferences can reasonably be drawn from the evidence this court
is without power to substitute its own inferences or deductions for those of the
trier of fact . . . .” ’ The question is one of law only if the evidence is
undisputed.” (Linton v. DeSoto Cab Co., Inc. (2017) 15 Cal.App.5th 1208, 1225
[223 Cal.Rptr.3d 761].)
• The burden of proving the existence of an agency rests on the one affirming its
existence. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781
[111 P.2d 740].)
• “The label placed by the parties on their relationship is not dispositive, and
subterfuges are not countenanced.” (S. G. Borello & Sons, Inc., supra, 48 Cal.3d
at p. 342.)
• “[A]lthough the Caregiver Contract signed by Plaintiff stated she was an
independent contractor, not an employee, there is evidence of other indicia of
employment and Plaintiff averred in her declaration that the Caregiver Contract
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was presented to her ‘on a take it or leave it basis.’ ‘A party’s use of a label to
describe a relationship with a worker . . . will be ignored where the evidence of
the parties’ actual conduct establishes that a different relationship exists.’ ”
(Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232,
257–258 [242 Cal.Rptr.3d 460].)
• “It is not essential that the right of control be exercised or that there be actual
supervision of the work of the agent. The existence of the right of control and
supervision establishes the existence of an agency relationship.” (Malloy v. Fong
(1951) 37 Cal.2d 356, 370 [232 P.2d 241], internal citations omitted.)
• “ ‘[W]hat matters is whether a hirer has the “legal right to control the activities
of the alleged agent” . . . . That a hirer chooses not to wield power does not
prove it lacks power.’ ” (Duffey, supra, 31 Cal.App.5th at p. 257.)
• “Perhaps the strongest evidence of the right to control is whether the hirer can
discharge the worker without cause, because ‘[t]he power of the principal to
terminate the services of the agent gives him the means of controlling the
agent’s activities.’ ” (Ayala, supra, 59 Cal.4th at p. 531.)
• “The worker’s corresponding right to leave is similarly relevant: ‘ “An employee
may quit, but an independent contractor is legally obligated to complete his
contract.” ’ ” (Ayala, supra, 59 Cal.4th at p. 531 fn. 2.)
• “A finding of employment is supported where the workers are ‘a regular and
integrated portion of [the] business operation.’ ” (Garcia v. Seacon Logix Inc.
(2015) 238 Cal.App.4th 1476, 1487 [190 Cal.Rptr.3d 400].)
• “Where workers are paid weekly or by the hour, rather than by the job, it
suggests an employment relationship.” (Garcia, supra, 238 Cal.App.4th at p.
1488.)
• “In cases where there is a written contract, to answer that question [the right of
control] without full examination of the contract will be virtually impossible.
. . . [¶] . . . [T]he rights spelled out in a contract may not be conclusive if
other evidence demonstrates a practical allocation of rights at odds with the
written terms.” (Ayala, supra, 59 Cal.4th at p. 535.)
• “[T]he right to exercise complete or authoritative control must be shown, rather
than mere suggestion as to detail. A worker is an independent contractor when
he or she follows the employer’s desires only in the result of the work, and not
the means by which it is achieved.” (Jackson v. AEG Live, LLC (2015) 233
Cal.App.4th 1156, 1179 [183 Cal.Rptr.3d 394].)
• “ ‘[T]he owner may retain a broad general power of supervision and control as
to the results of the work so as to insure satisfactory performance of the
independent contract—including the right to inspect [citation], . . . the right to
make suggestions or recommendations as to details of the work [citation], the
right to prescribe alterations or deviations in the work [citation]—without
changing the relationship from that of owner and independent contractor . . . .’ ”
(Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal.App.4th 1138, 1143
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[159 Cal.Rptr.3d 102], quoting McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785,
790 [285 P.2d 902].)
• “Agency and independent contractorship are not necessarily mutually exclusive
legal categories as independent contractor and servant or employee are. In other
words, an agent may also be an independent contractor. One who contracts to act
on behalf of another and subject to the other’s control, except with respect to his
physical conduct, is both an agent and an independent contractor.” (Jackson,
supra, 233 Cal.App.4th at p. 1184, original italics, internal citations omitted.)
• “[W]hen a statute refers to an ‘employee’ without defining the term, courts have
generally applied the common law test of employment to that statute.” (Arnold v.
Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 586 [135 Cal.Rptr.3d
213].)
• “[A] termination at-will clause for both parties may properly be included in an
independent contractor agreement, and is not by itself a basis for changing that
relationship to one of an employee.” (Arnold, supra, 202 Cal.App.4th at p. 589.)
• Restatement Second of Agency, section 220, provides: “(1) A servant is a person
employed to perform services in the affairs of another and who with respect to
the physical conduct in the performance of the services is subject to the other’s
control or right to control. [¶] (2) In determining whether one acting for another
is a servant or an independent contractor, the following matters of fact, among
others, are considered: [¶] (a) the extent of control which, by the agreement, the
master may exercise over the details of the work; [¶] (b) whether or not the one
employed is engaged in a distinct occupation or business; [¶] (c) the kind of
occupation, with reference to whether, in the locality, the work is usually done
under the direction of the employer or by a specialist without supervision; [¶] (d)
the skill required in the particular occupation; [¶] (e) whether the employer or
the workman supplies the instrumentalities, tools, and the place of work for the
person doing the work; [¶] (f) the length of time for which the person is
employed; [¶] (g) the method of payment, whether by the time or by the job; [¶]
(h) whether or not the work is a part of the regular business of the employer; [¶]
(i) whether or not the parties believe they are creating the relation of master and
servant; and [¶] (j) whether the principal is or is not in business.”
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 29A
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2] (Matthew
Bender)
2 Wilcox, California Employment Law, Ch. 30, Employers’ Tort Liability to Third
Parties for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, §§ 248.15, 248.22, 248.51 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.13 (Matthew Bender)
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10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, §§ 100A.25, 100A.34 (Matthew Bender)
California Civil Practice: Torts §§ 3:5–3:6 (Thomson Reuters)
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3705. Existence of “Agency” Relationship Disputed
[Name of plaintiff] claims that [name of agent] was [name of defendant]’s
agent and that [name of defendant] is therefore responsible for [name of
agent]’s conduct.
If [name of plaintiff] proves that [name of defendant] gave [name of agent]
authority to act on [his/her/nonbinary pronoun/its] behalf, then [name of
agent] was [name of defendant]’s agent. This authority may be shown by
words or may be implied by the parties’ conduct. This authority cannot
be shown by the words of [name of agent] alone.
New September 2003; Revised November 2017
Directions for Use
This instruction should be used when the factual setting involves a relationship other
than employment, such as homeowner-real estate agent or franchisor-franchisee. For
an instruction for use for employment, give CACI No. 3704, Existence of
“Employee” Status Disputed. The secondary factors (a) through (j) in CACI No.
3704 may be given with this instruction also. (See Secci v. United Independent Taxi
Drivers, Inc. (2017) 8 Cal.App.5th 846, 855 [214 Cal.Rptr.3d 379].)
Sources and Authority
• “Agent” Defined. Civil Code section 2295.
• “[A] principal who personally engages in no misconduct may be vicariously
liable for the tortious act committed by an agent within the course and scope of
the agency. [Citation.] Agency is the relationship which results from the
manifestation of consent by one person to another that the other shall act on his
behalf and subject to his control, and consent by the other so to act . . . .
[Citation.] While the existence of an agency relationship is ‘typically a question
of fact, when ‘ “the evidence is susceptible of but a single inference,” ’ summary
judgment may be appropriate.” (Barenborg v. Sigma Alpha Epsilon Fraternity
(2019) 33 Cal.App.5th 70, 85 [244 Cal.Rptr.3d 680], internal citations omitted.)
• “ ‘ “The existence of an agency is a factual question within the province of the
trier of fact whose determination may not be disturbed on appeal if supported by
substantial evidence. [Citation.]” [Citation.] Inferences drawn from conflicting
evidence by the trier of fact are generally upheld. [Citation.]’ ‘Only when the
essential facts are not in conflict will an agency determination be made as a
matter of law. [Citation.]’ ” (Secci, supra, 8 Cal.App.5th at p. 854.)
• The burden of proving the existence of an agency rests on the one affirming its
existence. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781
[111 P.2d 740].)
• One who performs a mere favor for another without being subject to any legal
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duty of service and without assenting to right of control is not an agent, because
the agency relationship rests upon mutual consent. (Hanks v. Carter & Higgins
of Cal., Inc. (1967) 250 Cal.App.2d 156, 161 [58 Cal.Rptr. 190].)
• An agency must rest upon an agreement. (D’Acquisto v. Evola (1949) 90
Cal.App.2d 210, 213 [202 P.2d 596].) “Agency may be implied from the
circumstances and conduct of the parties.” (Michelson v. Hamada (1994) 29
Cal.App.4th 1566, 1579 [36 Cal.Rptr.2d 343], internal citations omitted.)
• “Whether a person performing work for another is an agent or an independent
contractor depends primarily upon whether the one for whom the work is done
has the legal right to control the activities of the alleged agent. . . . It is not
essential that the right of control be exercised or that there be actual supervision
of the work of the agent. The existence of the right of control and supervision
establishes the existence of an agency relationship.” (Malloy v. Fong (1951) 37
Cal.2d 356, 370 [232 P.2d 241], internal citations omitted.)
• “For an agency relationship to exist, the asserted principal must have a sufficient
right to control the relevant aspect of the purported agent’s day-to-day
operations.” (Barenborg, supra, 33 Cal.App.5th at p. 85.)
• When the principal controls only the results of the work and not the means by
which it is accomplished, an independent contractor relationship is established.
(White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 25 [202 Cal.Rptr. 141],
overruled on other grounds in Soule v. GM Corp. (1994) 8 Cal.4th 548 [34
Cal.Rptr.2d 607, 882 P.2d 298].)
• “ ‘[W]hether an agency relationship has been created or exists is determined by
the relation of the parties as they in fact exist by agreement or acts [citation],
and the primary right of control is particularly persuasive. [Citations.] Other
factors may be considered to determine if an independent contractor is acting as
an agent, including: whether the “principal” and “agent” are engaged in distinct
occupations; the skill required to perform the “agent’s” work; whether the
“principal” or “agent” supplies the workplace and tools; the length of time for
completion; whether the work is part of the ‘principal’s” regular business; and
whether the parties intended to create an agent/principal relationship.
[Citation.]’ ” (Secci, supra, 8 Cal.App.5th at p. 855.)
• “[T]here is substantial overlap in the factors for determining whether one is an
employee or an agent.” (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th
1156, 1184 [183 Cal.Rptr.3d 394].)
• “Agency and independent contractorship are not necessarily mutually exclusive
legal categories as independent contractor and servant or employee are. In other
words, an agent may also be an independent contractor. One who contracts to act
on behalf of another and subject to the other’s control, except with respect to his
physical conduct, is both an agent and an independent contractor.” (Jackson,
supra, 233 Cal.App.4th at p. 1184, original italics, internal citations omitted.)
• “[Defendant] argues that when public regulations require a company to exert
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control over its independent contractors, evidence of that government-mandated
control cannot support a finding of vicarious liability based on agency. This
argument conflicts with the policy behind the regulated hirer exception, which
emphasizes that the effectiveness of public regulations ‘would be impaired if the
carrier could circumvent them by having the regulated operations conducted by
an independent contractor.’ ” (Secci, supra, 8 Cal.App.5th at pp. 860–861.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 101–105
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 2-C
Broker’s Relationship and Obligations to Principal and Third Parties, ¶ 2:120 et
seq. (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, ¶¶ 2:600, 2:611 (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04 (Matthew Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.51 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.12 (Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent, § 182.30 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 3:26–3:27 (Thomson Reuters)
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3706. Special Employment—Lending Employer Denies
Responsibility for Worker’s Acts
When one employer sends or loans an employee to work for another
employer, a special employment relationship may be created that affects
the duties and responsibilities between the two employers and the
employee. The arrangement may be temporary with a determined ending
date or event; or it may be open-ended. In this situation, the borrowing
employer is known as a “special employer” and the employee is referred
to as a “special employee.”
[Name of plaintiff] claims that [name of worker] was the employee of
[name of defendant lending employer] when the incident occurred, and
that [name of defendant lending employer] is therefore responsible for
[name of worker]’s conduct. [Name of defendant lending employer] claims
that [name of worker] was the special employee of [name of defendant
borrowing employer] when the incident occurred, and therefore [name of
defendant borrowing employer] is solely responsible for [name of worker]’s
conduct.
In deciding whether [name of worker] was [name of defendant borrowing
employer]’s special employee when the incident occurred, the most
important factor is whether [name of defendant borrowing employer] had
the right to fully control the details of the work activities of [name of
worker], rather than just the right to specify the result. It does not
matter whether [name of defendant borrowing employer] actually exercised
the right to control.
In addition to the right to control, you must consider all the
circumstances in deciding whether [name of worker] was [name of
defendant borrowing employer]’s special employee when the incident
occurred. The following factors, if true, may tend to show that [name of
worker] was the special employee of [name of defendant borrowing
employer]. No one factor is necessarily decisive. Do not simply count the
number of applicable factors and use the larger number to make your
decision. It is for you to determine the weight and importance to give to
each of these additional factors based on all of the evidence.
(a) [Name of defendant borrowing employer] supplied the equipment,
tools, and place of work;
(b) [Name of worker] was paid by the hour rather than by the job;
(c) The work being done by [name of worker] was part of the regular
business of [name of defendant borrowing employer];
(d) [Name of defendant borrowing employer] had the right to terminate
[name of worker]’s employment, not just the right to have [him/
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her/nonbinary pronoun] removed from the job site;
(e) [Name of worker] was not engaged in a distinct occupation or
business;
(f) The kind of work performed by [name of worker] is usually done
under the direction of a supervisor rather than by a specialist
working without supervision;
(g) The kind of work performed by [name of worker] does not require
specialized or professional skill;
(h) The services performed by [name of worker] were to be performed
over a long period of time;
(i) [Name of defendant lending employer] and [name of defendant
borrowing employer] were not jointly engaged in a project of
mutual interest;
(j) [Name of worker], expressly or by implication, consented to the
special employment with [name of defendant borrowing employer];
[and]
(k) [Name of worker] and [name of defendant borrowing employer]
believed that they had a special employment relationship[./;] [and]
(l) [Specify any other relevant factors.]
New September 2003; Revised June 2013, December 2015, December 2016
Directions for Use
This instruction is for use in “special employment” cases. Special employment arises
when a worker has been loaned from one employer to another, and there is an issue
as to which employer the worker should be attributed with regard to the claim in the
case. The borrowing employer is called the “special” employer. The lending
employer is sometimes called the “general” employer, though use of that term may
be confusing to a jury.
The instruction as drafted is for use by the lending employer to claim that the
worker should be considered as the special employee of the borrowing employer.
This would be the case if the issue is which employer is responsible for the
worker’s tortious conduct under respondeat superior. The instruction may be
modified if the claim is for injury to the worker, and the borrowing employer wants
to claim the worker as its own in order to take advantage of the exclusive remedy
bar of workers’ compensation. This instruction is not for use by the worker to claim
employment rights under the Labor Code, though many of its provisions will likely
be applicable.
In addition to the borrowing employer’s control over the employee, there are a
number of relevant secondary factors to use in deciding whether a special
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employment relationship existed. They are similar, but not identical, to the factors
from the Restatement Second of Agency, section 220 to be used in an independent
contractor analysis. (See State ex rel. Dept. of California Highway Patrol v. Superior
Court (2015) 60 Cal.4th 1002, 1013–1014 [184 Cal.Rptr.3d 354, 343 P.3d 415];
CACI No. 3704, Existence of “Employee” Status Disputed; see also Marsh v. Tilley
Steel Co. (1980) 26 Cal.3d 486, 492 [162 Cal.Rptr. 320, 606 P.2d 355]; Kowalski v.
Shell Oil Co. (1979) 23 Cal.3d 168, 176–177 [151 Cal.Rptr. 671, 588 P.2d 811].) In
the employee-contractor context, it has been held to be error not to give the
secondary factors. (See Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 303–304 [111
Cal.Rptr.3d 787].)
Sources and Authority
• “[W]here the servants of two employers are jointly engaged in a project of
mutual interest, each employee ordinarily remains the servant of his own master
and does not thereby become the special employee of the other.” (Marsh, supra,
26 Cal.3d at p. 493.)
• “When an employer—the ‘general’ employer—lends an employee to another
employer and relinquishes to a borrowing employer all right of control over the
employee’s activities, a ‘special employment’ relationship arises between the
borrowing employer and the employee. During this period of transferred control,
the special employer becomes solely liable under the doctrine of respondeat
superior for the employee’s job-related torts.” (Marsh, supra, 26 Cal.3d at p.
492.)
• “The law of agency has long recognized that a person generally the servant of
one master can become the borrowed servant of another. If the borrowed servant
commits a tort while carrying out the bidding of the borrower, vicarious liability
attaches to the borrower and not to the general master.” (Societa per Azioni de
Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 455–456 [183
Cal.Rptr. 51, 645 P.2d 102], internal citations omitted.)
• “Liability in borrowed servant cases involves the exact public policy
considerations found in sole employer cases. Liability should be on the persons
or firms which can best insure against the risk, which can best guard against the
risk, which can most accurately predict the cost of the risk and allocate the cost
directly to the consumers, thus reflecting in its prices the enterprise’s true cost of
doing business.” (Strait v. Hale Construction Co. (1972) 26 Cal.App.3d 941, 949
[103 Cal.Rptr. 487].)
• “In determining whether a special employment relationship exists, the primary
consideration is whether the special employer has ‘ “[t]he right to control and
direct the activities of the alleged employee or the manner and method in which
the work is performed, whether exercised or not . . . .” ’ However, ‘[whether]
the right to control existed or was exercised is generally a question of fact to be
resolved from the reasonable inferences to be drawn from the circumstances
shown.’ ” (Kowalski, supra, 23 Cal.3d at p. 175, internal citations omitted.)
• “[S]pecial employment is most often resolved on the basis of ‘reasonable
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inferences to be drawn from the circumstances shown.’ Where the evidence,
though not in conflict, permits conflicting inferences, . . . ‘ “the existence or
nonexistence of the special employment relationship barring the injured
employee’s action at law is generally a question reserved for the trier of fact.” ’ ”
(Marsh, supra, 26 Cal.3d at p. 493.)
• “[I]f neither the evidence nor inferences are in conflict, then the question of
whether an employment relationship exists becomes a question of law which
may be resolved by summary judgment.” (Riley v. Southwest Marine, Inc. (1988)
203 Cal.App.3d 1242, 1248–1249 [250 Cal.Rptr. 718], internal citations omitted.)
• “The special employment relationship and its consequent imposition of liability
upon the special employer flows from the borrower’s power to supervise the
details of the employee’s work. Mere instruction by the borrower on the result to
be achieved will not suffice.” (Marsh, supra, 26 Cal.3d at p. 492.)
• “California courts have held that evidence of the following circumstances tends
to negate the existence of a special employment: The employee is (1) not paid
by and cannot be discharged by the borrower, (2) a skilled worker with
substantial control over operational details, (3) not engaged in the borrower’s
usual business, (4) employed for only a brief period of time, and (5) using tools
and equipment furnished by the lending employer.” (Marsh, supra, 26 Cal.3d at
p. 492.)
• “The common law also recognizes factors secondary to the right of control. We
have looked to other considerations discussed in the Restatement of Agency to
assess whether an employer-employee relationship exists. The comments to
section 227 of the Restatement Second of Agency, which covers servants lent by
one master to another, note that ‘[m]any of the factors stated in Section 220
which determine that a person is a servant are also useful in determining
whether the lent servant has become the servant of the borrowing employer.’ The
secondary Restatement factors that we have adopted are: ‘ “(a) [W]hether the
one performing services is engaged in a distinct occupation or business; (b) the
kind of occupation, with reference to whether, in the locality, the work is usually
done under the direction of the principal or by a specialist without supervision;
(c) the skill required in the particular occupation; (d) whether the principal or the
worker supplies the instrumentalities, tools, and the place of work for the person
doing the work; (e) the length of time for which the services are to be
performed; (f) the method of payment, whether by the time or by the job; (g)
whether or not the work is a part of the regular business of the principal; and (h)
whether or not the parties believe they are creating the relationship of employer-
employee.” [Citations.]’ ” (State ex rel. Dept. of California Highway Patrol,
supra, 60 Cal.4th at pp. 1013–1014, internal citations omitted.)
• “Evidence that the alleged special employer has the power to discharge a worker
‘is strong evidence of the existence of a special employment relationship . . . .
The payment of wages is not, however, determinative.’ Other factors to be taken
into consideration are ‘the nature of the services, whether skilled or unskilled,
whether the work is part of the employer’s regular business, the duration of the
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employment period, . . . and who supplies the work tools.’ Evidence that (1) the
employee provides unskilled labor, (2) the work he performs is part of the
employer’s regular business, (3) the employment period is lengthy, and (4) the
employer provides the tools and equipment used, tends to indicate the existence
of special employment. Conversely, evidence to the contrary negates existence of
a special employment relationship. [¶¶] In addition, consideration must be given
to whether the worker consented to the employment relationship, either expressly
or impliedly, and to whether the parties believed they were creating the
employer-employee relationship.” (Kowalski, supra, 23 Cal.3d at pp. 176–178,
footnotes and internal citations omitted.)
• “Moreover, that an alleged special employer can have an employee removed
from the job site does not necessarily indicate the existence of a special
employment relationship. Anyone who has the employees of an independent
contractor working on his premises could, if dissatisfied with an employee, have
the employee removed. Yet, the ability to do so would not make the employees
of the independent contractor the special employees of the party receiving the
services.” (Kowalski, supra, 23 Cal.3d at p. 177 fn. 9.)
• [T]he jury need not find that [the worker] remained exclusively defendant’s
employee in order to impose liability on defendant. Facts demonstrating the
existence of a special employment relationship do not necessarily preclude a
finding that a particular employee also remained under the partial control of the
original employer. Where general and special employers share control of an
employee’s work, a ‘dual employment’ arises, and the general employer remains
concurrently and simultaneously, jointly and severally liable for the employee’s
torts.” (Marsh, supra, 26 Cal.3d at pp. 494–495.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 179–182
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2][e] (Matthew
Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.22 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.28 (Matthew Bender)
California Civil Practice: Torts §§ 3:26–3:27 (Thomson Reuters)
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3707. Special Employment—Joint Responsibility
If you decide that [name of worker] was the special employee of [name of
defendant borrowing employer], but that [name of defendant lending
employer] partially controlled [name of worker]’s activities along with
[name of defendant borrowing employer], then you must conclude that
both [name of defendant lending employer] and [name of defendant
borrowing employer] are responsible for the conduct of [name of worker].
New September 2003; Revised December 2016
Directions for Use
Give this instruction with CACI No. 3706, Special Employment—Lending Employer
Denies Responsibility for Worker’s Acts, if the jury will be given the option of
deciding that both the lending employer and the borrowing employer should be
treated as the worker’s employer with regard to the claim at issue.
Sources and Authority
• “ ‘ “Where an employer sends an employee to do work for another person, and
both have the right to exercise certain powers of control over the employee, that
employee may be held to have two employers—his original or ‘general’
employer and a second, the ‘special’ employer.” ’ A general employer is absolved
of respondeat superior liability when it has relinquished total control to the
special employer. During this period of transferred control, the special employer
becomes solely liable under the doctrine of respondeat superior for the
employee’s job-related torts.” (Montague v. AMN Healthcare, Inc. (2014) 223
Cal.App.4th 1515, 1520 [168 Cal.Rptr.3d 123], internal citations omitted.)
• “Facts demonstrating the existence of a special employment relationship do not
necessarily preclude a finding that a particular employee also remained under the
partial control of the original employer. Where general and special employers
share control of an employee’s work, a ‘dual employment’ arises, and the general
employer remains concurrently and simultaneously, jointly and severally liable
for the employee’s torts.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486,
494–495 [162 Cal.Rptr. 320, 606 P.2d 355], internal citations omitted.)
• “This is especially true where the loaned employee performs work of interest to
both the general and special employers.” (Societa per Azioni de Navigazione
Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 460 [183 Cal.Rptr. 51, 645
P.2d 102], internal citation omitted.) If the loaned employee performs work of
interest to both the general and special employers, “there is a presumption that
the [employee] remained in his general employment. (Ibid.) The [general
employer] can avoid liability only if it can [prove] that it gave up . . .
‘authoritative direction and control’ [over the employee].” (Ibid.)
• “ ‘Authoritative direction and control’ is more than the power to suggest details
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or the necessary cooperation.” (Societa per Azioni de Navigazione Italia, supra,
31 Cal.3d at p. 460, internal citations omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 179–182
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2][e] (Matthew
Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.22 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.28 (Matthew Bender)
California Civil Practice: Torts §§ 3:26–3:27 (Thomson Reuters)
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3708. Peculiar-Risk Doctrine
[Name of plaintiff] claims that even if [name of independent contractor] was
not an employee, [name of defendant] is responsible for [name of
independent contractor]’s conduct because the work involved a special
risk of harm.
A special risk of harm is a recognizable danger that arises out of the
nature of the work or the place where it is done and requires specific
safety measures appropriate to the danger. A special risk of harm may
also arise out of a planned but unsafe method of doing the work. A
special risk of harm does not include a risk that is unusual, abnormal, or
not related to the normal or expected risks associated with the work.
To establish this claim, [name of plaintiff] must prove each of the
following:
1. That the work was likely to involve a special risk of harm to
others;
2. That [name of defendant] knew or should have known that the
work was likely to involve this risk;
3. That [name of independent contractor] failed to use reasonable care
to take specific safety measures appropriate to the danger to
avoid this risk; and
4. That [name of independent contractor]’s failure was a cause of
harm to [name of plaintiff].
[In deciding whether [name of defendant] should have known the risk,
you should consider [his/her/nonbinary pronoun/its] knowledge and
experience in the field of work to be done.]
New September 2003
Sources and Authority
• “The doctrine of peculiar risk is an exception to the common law rule that a
hirer was not liable for the torts of an independent contractor. Under this
doctrine, ‘a person who hires an independent contractor to perform work that is
inherently dangerous can be held liable for tort damages when the contractor’s
negligent performance of the work causes injuries to others. By imposing such
liability without fault on the person who hires the independent contractor, the
doctrine seeks to ensure that injuries caused by inherently dangerous work will
be compensated, that the person for whose benefit the contracted work is done
bears responsibility for any risks of injury to others, and that adequate
safeguards are taken to prevent such injuries.’ This doctrine of peculiar risk thus
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represents a limitation on the common law rule and a corresponding expansion
of hirer vicarious liability.” (Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638,
646–647 [182 Cal.Rptr.3d 803], internal citation omitted.)
• In determining the applicability of the doctrine of peculiar risk, a critical inquiry
“is whether the work for which the contractor was hired involves a risk that is
‘peculiar to the work to be done,’ arising either from the nature or the location
of the work and ‘ “against which a reasonable person would recognize the
necessity of taking special precautions.” ’ ” (Privette v. Superior Court (1993) 5
Cal.4th 689, 695 [21 Cal.Rptr.2d 72, 854 P.2d 721], internal citations omitted.)
• “The courts created this exception in the late 19th century to ensure that
innocent third parties injured by inherently dangerous work performed by an
independent contractor for the benefit of the hiring person could sue not only the
contractor, but also the hiring person, so that in the event of the contractor’s
insolvency, the injured person would still have a source of recovery.” (Toland v.
Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 258 [74 Cal.Rptr.2d 878,
955 P.2d 504].)
• “The analysis of the applicability of the peculiar risk doctrine to a particular fact
situation can be broken down into two elements: (1) whether the work is likely
to create a peculiar risk of harm unless special precautions are taken; and (2)
whether the employer should have recognized that the work was likely to create
such a risk.” (Jimenez v. Pacific Western Construction Co. (1986) 185
Cal.App.3d 102, 110 [229 Cal.Rptr. 575].)
• “Whether the particular work which the independent contractor has been hired to
perform is likely to create a peculiar risk of harm to others unless special
precautions are taken is ordinarily a question of fact.” (Castro v. State of
California (1981) 114 Cal.App.3d 503, 511 [170 Cal.Rptr. 734], internal citations
omitted; but see Jimenez, supra, 185 Cal.App.3d at pp. 109–111 [proper in this
case for trial court to find peculiar risk as a matter of law].)
• “[T]he hiring person’s liability is cast in the form of the hiring person’s breach
of a duty to see to it that special precautions are taken to prevent injuries to
others; in that sense, the liability is ‘direct.’ Yet, peculiar risk liability is not a
traditional theory of direct liability for the risks created by one’s own conduct:
Liability . . . is in essence ‘vicarious’ or ‘derivative’ in the sense that it derives
from the ‘act or omission’ of the hired contractor, because it is the hired
contractor who has caused the injury by failing to use reasonable care in
performing the work . . . . ‘The conclusion that peculiar risk is a form of
vicarious liability is unaffected by the characterization of the doctrine as “direct”
liability in situations when the person hiring an independent contractor ‘fails to
provide in the contract that the contractor shall take [special]
precautions.’ ”(Toland, supra, 18 Cal.4th at p. 265.)
• “A peculiar risk may arise out of a contemplated and unsafe method of work
adopted by the independent contractor.” (Mackey v. Campbell Construction Co.
(1980) 101 Cal.App.3d 774, 785–786 [162 Cal.Rptr. 64].)
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• “The term ‘peculiar risk’ means neither a risk that is abnormal to the type of
work done, nor a risk that is abnormally great; it simply means ‘a special,
recognizable danger arising out of the work itself.’ For that reason, as this court
has pointed out, the term ‘special risk’ is probably a more accurate description
than ‘peculiar risk,’ which is the terminology used in the Restatement.” (Privette,
supra, 5 Cal.4th at p. 695, internal citations omitted.)
• “Even when work performed by an independent contractor poses a special or
peculiar risk of harm, . . . the person who hired the contractor will not be liable
for injury to others if the injury results from the contractor’s ‘collateral’ or
‘casual’ negligence.” (Privette, supra, 5 Cal.4th at p. 696.)
• “ ‘Casual’ or ‘collateral’ negligence has sometimes been described as negligence
in the operative detail of the work, as distinguished from the general plan or
method to be followed. Although this distinction can frequently be made, since
negligence in the operative details will often not be within the contemplation of
the employer when the contract is made, the distinction is not essentially one
between operative detail and general method. ‘It is rather one of negligence
which is unusual or abnormal, or foreign to the normal or contemplated risks of
doing the work, as distinguished from negligence which creates only the normal
or contemplated risk.’ ” (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d
502, 510 [156 Cal.Rptr. 41, 595 P.2d 619], overruled on other grounds in
Privette, supra, 5 Cal.4th at p. 702, fn. 4.)
• “[T]he question is whether appellant’s alleged injuries resulted from negligence
which was unusual or abnormal, creating a new risk not inherent in the work
itself or in the ordinary or prescribed way of doing it, and not reasonably
foreseeable by respondent; or whether the injuries were caused by normal
negligence which precipitated a contemplated special risk of harm which was
itself ‘peculiar to the work to be done, and arising out of its character, or out of
the place where it is to be done, against which a reasonable man would
recognize the necessity of taking special precautions.’ This question, like the
broader issue of whether there was a peculiar risk inherent in the work being
performed, is a question of fact to be resolved by the trier of fact.” (Caudel v.
East Bay Municipal Utility Dist. (1985) 165 Cal.App.3d 1, 9 [211 Cal.Rptr.
222].)
• “[T]he dispositive issue for purposes of applying the peculiar risk doctrine to the
present case is whether there was a direct relationship between the accident and
the ‘particular work performed’ by [contractor]. In other words, if the ‘character’
of the work contributed to the accident, the peculiar risk doctrine applies. If the
accident resulted from ‘ordinary’ use of the vehicle, the peculiar risk doctrine
does not apply, notwithstanding the vehicle’s size and weight.” (Bowman v.
Wyatt (2010) 186 Cal.App.4th 286, 309 [111 Cal.Rptr.3d 787], internal citation
omitted.)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1394–1396
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.05[3][b] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.10[2][b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, §§ 248.22, 248.32[3] (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.41 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:22 (Thomson Reuters)
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3709. Ostensible Agent
[Name of plaintiff] claims that [name of defendant] is responsible for [name
of agent]’s conduct because [name of agent] was [name of defendant]’s
apparent [employee/agent]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] intentionally or carelessly created the
impression that [name of agent] was [name of defendant]’s
[employee/agent];
2. That [name of plaintiff] reasonably believed that [name of agent]
was [name of defendant]’s [employee/agent]; and
3. That [name of plaintiff] reasonably relied on [his/her/nonbinary
pronoun] belief.
New September 2003; Revised November 2019, November 2021
Directions for Use
Give this instruction with CACI No. 3701, Tort Liability Asserted Against
Principal—Essential Factual Elements, if the plaintiff is relying on the doctrine of
ostensible agency to establish the principal-agent relationship in CACI No. 3701.
For an instruction on ostensible agency in the physician-hospital context, see CACI
No. 3714, Ostensible Agency—Physician-Hospital Relationship.
Sources and Authority
• Agency Is Actual or Ostensible. Civil Code section 2298.
• “Ostensible Agency” Defined. Civil Code section 2300.
• “Ostensible Authority” Defined. Civil Code section 2317.
• When Principal is Bound by Ostensible Agent. Civil Code section 2334.
• “ ‘[O]stensible authority arises as a result of conduct of the principal which
causes the third party reasonably to believe that the agent possesses the authority
to act on the principal’s behalf.’ ‘Ostensible authority may be established by
proof that the principal approved prior similar acts of the agent.’ ‘ “[W]here the
principal knows that the agent holds himself out as clothed with certain
authority, and remains silent, such conduct on the part of the principal may give
rise to liability.” ’ ” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188
Cal.App.4th 401, 426–427 [115 Cal.Rptr.3d 707], original italics, internal
citations omitted.)
• “Whether an agent has ostensible authority is a question of fact and such
authority may be implied from circumstances.” (Pierson v. Helmerich & Payne
Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 635 [209 Cal.Rptr.3d 222].)
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• “ ‘It is elementary that there are three requirements necessary before recovery
may be had against a principal for the act of an ostensible agent. The person
dealing with the agent must do so with belief in the agent’s authority and this
belief must be a reasonable one; such belief must be generated by some act or
neglect of the principal sought to be charged; and the third person in relying on
the agent’s apparent authority must not be guilty of negligence.’ ” (Associated
Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 399 [118 Cal.Rptr. 772, 530
P.2d 1084], internal citations omitted.)
• “Ostensible agency cannot be established by the representations or conduct of
the purported agent; the statements or acts of the principal must be such as to
cause the belief the agency exists.” (American Way Cellular, Inc. v. Travelers
Property Casualty Co. of America (2013) 216 Cal.App.4th 1040, 1053 [157
Cal.Rptr.3d 385].)
• “Liability of the principal for the acts of an ostensible agent rests on the doctrine
of ‘estoppel,’ the essential elements of which are representations made by the
principal, justifiable reliance by a third party, and a change of position from such
reliance resulting in injury.” (Preis v. American Indemnity Co. (1990) 220
Cal.App.3d 752, 761 [269 Cal.Rptr. 617], internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 154–159
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, ¶¶ 2:676, 2:677 (The Rutter Group)
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13 et seq.
(Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent, §§ 182.04,
182.120 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:29 (Thomson Reuters)
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3710. Ratification
[Name of plaintiff] claims that [name of defendant] is responsible for the
harm caused by [name of agent]’s conduct because [name of defendant]
approved that conduct after it occurred. If you find that [name of agent]
harmed [name of plaintiff], you must decide whether [name of defendant]
approved that conduct. To establish [his/her/nonbinary pronoun] claim,
[name of plaintiff] must prove all of the following:
1. That [name of agent], although not authorized to do so, purported
to act on behalf of [name of defendant];
2. That [name of defendant] learned of [name of agent]’s
unauthorized conduct, and all of the material facts involved in the
unauthorized transaction, after it occurred; and
3. That [name of defendant] then approved [name of agent]’s conduct.
Approval can be shown through words, or it can be inferred from a
person’s conduct. [Approval can be inferred if [name of defendant]
voluntarily keeps the benefits of [name of agent]’s unauthorized conduct
after [he/she/nonbinary pronoun/it] learns of it.]
New September 2003; Revised June 2016
Directions for Use
This instruction is for use in a traditional principal-agent relationship. The last
bracketed sentence should be read only if it is appropriate to the facts of the case.
This instruction should not be given without modifications in an employment law
case, in which an employee seeks to hold the employer liable for the tortious
conduct of a supervisor or other employee. Ratification involves different
considerations in employment law. For example, element 1 should not be given
because it is not necessary for the culpable employee to purport to act on behalf of
the employer. (See Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258,
271–272 [150 Cal.Rptr.3d 861] [CACI 3710 given without element 1].)
For an instruction for use for governmental entity liability in a civil rights case
under Title 42 United States Code section 1983, see CACI No. 3004, Local
Government Liability—Act or Ratification by Offıcial With Final Policymaking
Authority—Essential Factual Elements.
Sources and Authority
• Agency Created by Ratification. Civil Code section 2307.
• Ratification by Acceptance of Benefits. Civil Code section 2310.
• Partial Ratification. Civil Code section 2311.
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• Vicarious Liability for Ratified Acts. Civil Code section 2339.
• “Ratification is the subsequent adoption by one person of an act which another
without authority assumed to do as his agent.” (Anderson v. Fay Improv. Co.
(1955) 134 Cal.App.2d 738, 748 [286 P.2d 513].)
• “ ‘[S]ince ratification contemplates an act by one person in behalf of another,
there must exist at the time the unauthorized act was done a relationship, either
actual or assumed, of principal and agent, between the person alleged to have
ratified and the person by whom the unauthorized act was done.’ ” (Anderson,
supra, 134 Cal.App.2d at p. 748, citing 2 California Jurisprudence 2d 741,
section 83.)
• “ ‘Furthermore, the prevailing view is that there can be no ratification if the
person who performed the unauthorized act did not at the time profess to be an
agent.’ ” (Anderson, supra, 134 Cal.App.2d at p. 748, citing 2 California
Jurisprudence 2d 741, section 83.)
• “Ratification is the voluntary election by a person to adopt in some manner as
his own an act which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if originally
authorized by him. A purported agent’s act may be adopted expressly or it may
be adopted by implication based on conduct of the purported principal from
which an intention to consent to or adopt the act may be fairly inferred,
including conduct which is ‘inconsistent with any reasonable intention on his
part, other than that he intended approving and adopting it.’ ” (Rakestraw v.
Rodrigues (1972) 8 Cal.3d 67, 73 [104 Cal.Rptr. 57, 500 P.2d 1401].)
• “Ratification is essentially a matter of assent. Consequently, a principal is not
bound by ratification unless he acts with knowledge of all the material facts
involved in the unauthorized transaction, particularly with knowledge of the acts
of the person who assumed to act as his agent. This knowledge is equally
necessary whether the ratification be express or implied.” (Bate v. Marsteller
(1959) 175 Cal.App.2d 573, 582 [346 P.2d 903].)
• “Ratification is the subsequent adoption by one claiming the benefits of an act,
which without authority, another has voluntarily done while ostensibly acting as
the agent of him who affirms the act and who had the power to confer authority.
A principal cannot split an agency transaction and accept the benefits thereof
without the burdens.” (Reusche v. California Pacific Title Ins. Co. (1965) 231
Cal.App.2d 731, 737 [42 Cal.Rptr. 262], internal citation omitted.)
• “[A]n employer may be liable for an employee’s act where the employer . . .
subsequently ratified an originally unauthorized tort. [Citations.] The failure to
discharge an employee who has committed misconduct may be evidence of
ratification. [Citation.] The theory of ratification is generally applied where an
employer fails to investigate or respond to charges that an employee committed
an intentional tort, such as assault or battery. [Citations.] Whether an employer
has ratified an employee’s conduct is generally a factual question. [Citation.]”
(Ventura, supra, 212 Cal.App.4th at p. 272.)
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CACI No. 3710 VICARIOUS RESPONSIBILITY
• “On this issue, the jury was instructed that in order to establish her claim that
defendants were responsible for [supervisor]’s conduct, [plaintiff] ‘must prove
. . . that [defendants] learned of [supervisor]’s conduct after it occurred,’ and
that ‘defendants approved [supervisor]’s conduct.’ The instruction concluded,
‘Approval can be shown through words, or it can be inferred from a person’s
conduct.’ ” [¶] Defendants contend that the instruction was erroneous because it
did not tell the jury that there is ratification only if the employee intended to act
on behalf of the employer, the employer actually knows that the wrongful
conduct occurred, and the employer benefitted from the conduct, and that a
disputed allegation is not actual knowledge. . . . We can see no error.” (Ventura,
supra, 212 Cal.App.4th at pp. 271–272.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 149–153
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04[7] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, §§ 30.02, 30.07 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.13 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.18 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.21 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:4 (Thomson Reuters)
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3711. Partnerships
A partnership and each of its partners are responsible for the wrongful
conduct of a partner acting within the scope of the partner’s authority.
You must decide whether a partnership existed in this case. A
partnership is a group of two or more persons who own a business in
which all the partners agree to share the profits and losses. A
partnership can be formed by a written or oral agreement or by an
agreement implied by the parties’ conduct.
New September 2003; Revised May 2020
Directions for Use
This instruction is not intended for cases involving limited liability partnerships.
Sources and Authority
• Formation of Partnership. Corporations Code section 16202.
• Liability of Partnership. Corporations Code section 16305(a).
• “Under traditional legal concepts the partnership is regarded as an aggregate of
individuals with each partner acting as agent for all other partners in the
transaction of partnership business, and the agents of the partnership acting as
agents for all of the partners.” (Marshall v. International Longshoremen’s and
Warehousemen’s Union (1962) 57 Cal.2d 781, 783 [22 Cal.Rptr. 211, 371 P.2d
987].)
• “[T]he partners of a partnership are jointly and severally liable for the conduct
and torts injuring a third party committed by one of the partners.” (Black v.
Sullivan (1975) 48 Cal.App.3d 557, 569 [122 Cal.Rptr. 119], internal citations
omitted.)
• “ ‘[A] partnership need not be evidenced by writing [citation]. It is immaterial
that the parties do not designate the relationship as a partnership or realize that
they are partners, for the intent may be implied from their acts [citations].’ ‘In
that sense, any partnership without a written agreement is a “de facto”
partnership.’ ‘[T]he question of partnership is one of fact . . . .’ ” (Eng v. Brown
(2018) 21 Cal.App.5th 675, 694 [230 Cal.Rptr.3d 771], internal citation omitted.)
• “Ordinarily the existence of a partnership is evidenced by the right of the
respective parties to participate in the profits and losses and in the management
of the business.” (Eng, supra, 21 Cal.App.5th at p. 694.)
• “The CACI instructions cited by the court [CACI Nos. 3711, 3712] are correct
and were pertinent to the jury’s question regarding partnership formation.” (Eng,
supra, 21 Cal.App.5th at p. 706.)
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Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Partnership, § 43
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.06 (Matthew Bender)
35 California Forms of Pleading and Practice, Ch. 402, Partnerships: Actions
Between General Partners and Partnership, § 402.12 (Matthew Bender)
17 California Points and Authorities, Ch. 170, Partnerships, § 170.20 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 3:36–3:37 (Thomson Reuters)
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3712. Joint Ventures
Each of the members of a joint venture, and the joint venture itself, are
responsible for the wrongful conduct of a member acting in furtherance
of the venture.
You must decide whether a joint venture was created in this case. A joint
venture exists if all of the following have been proved:
1. Two or more persons or business entities combine their property,
skill, or knowledge with the intent to carry out a single business
undertaking;
2. Each has an ownership interest in the business;
3. They have joint control over the business, even if they agree to
delegate control; and
4. They agree to share the profits and losses of the business.
A joint venture can be formed by a written or an oral agreement or by
an agreement implied by the parties’ conduct.
New September 2003; Revised June 2011, December 2011
Directions for Use
This instruction can be modified for cases involving unincorporated associations by
substituting the term “unincorporated association” for “joint venture.”
If the venture has no commercial purpose, this instruction may be modified by
deleting elements 2 and 4, which do not apply to a noncommercial enterprise. Also
modify elements 1 and 3 to substitute another word for “business” depending on the
kind of activity involved. (See Shook v. Beals (1950) 96 Cal.App.2d 963, 969–970
[217 P.2d 56]; see also Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th
853, 872 [32 Cal.Rptr.3d 351].)
Sources and Authority
• “A joint venture is ‘an undertaking by two or more persons jointly to carry out a
single business enterprise for profit.’ ” (Weiner v. Fleischman (1991) 54 Cal.3d
476, 482 [286 Cal.Rptr. 40, 816 P.2d 892], internal citations omitted.)
• “A joint venture has been defined in various ways, but most frequently perhaps
as an association of two or more persons who combine their property, skill or
knowledge to carry out a single business enterprise for profit.” (Holtz v. United
Plumbing and Heating Co. (1957) 49 Cal.2d 501, 506 [319 P.2d 617].)
• “ ‘There are three basic elements of a joint venture: the members must have joint
control over the venture (even though they may delegate it), they must share the
profits of the undertaking, and the members must each have an ownership
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interest in the enterprise.’ Where a joint venture is established, the parties to the
venture are vicariously liable for the torts of the other in furtherance of the
venture.” (Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th
1034, 1053 [236 Cal.Rptr.3d 457], internal citation omitted.)
• “ ‘Whether a joint venture actually exists depends on the intention of the
parties . . . . [¶] . . . [¶] [W]here evidence is in dispute the existence or
nonexistence of a joint venture is a question of fact to be determined by the jury.
[Citation.]’ ” (Unruh-Haxton v. Regents of University of California (2008) 162
Cal.App.4th 343, 370 [76 Cal.Rptr.3d 146], internal citations omitted.)
• “ ‘A joint venture exists when there is “an agreement between the parties under
which they have a community of interest, that is, a joint interest, in a common
business undertaking, an understanding as to the sharing of profits and losses,
and a right of joint control [citing this instruction].” ’ ” (Simmons v. Ware (2013)
213 Cal.App.4th 1035, 1053 [153 Cal.Rptr.3d 178], internal citation omitted.)
• “We turn next to the element of joint control. ‘An essential element of a
partnership or joint venture is the right of joint participation in the management
and control of the business. [Citation.] Absent such right, the mere fact that one
party is to receive benefits in consideration of services rendered or for capital
contribution does not, as a matter of law, make him a partner or joint venturer.
[Citations.]’ ” (Simmons, supra, 213 Cal.App.4th at p. 1056.)
• “The law requires little formality in the creation of a joint venture and the
agreement is not invalid because it may be indefinite with respect to its details.”
(Boyd v. Bevilacqua (1966) 247 Cal.App.2d 272, 285 [55 Cal.Rptr. 610].)
• “The distinction between joint ventures and partnerships is not sharply drawn. A
joint venture usually involves a single business transaction, whereas a
partnership may involve ‘a continuing business for an indefinite or fixed period
of time.’ Yet a joint venture may be of longer duration and greater complexity
than a partnership. From a legal standpoint, both relationships are virtually the
same. Accordingly, the courts freely apply partnership law to joint ventures when
appropriate.” (Weiner, supra, 54 Cal.3d at p. 482, internal citations omitted.)
• “The incidents of a joint venture are in all important respects the same as those
of a partnership. One such incident of partnership is that all partners are jointly
and severally liable for partnership obligations, irrespective of their individual
partnership interests. Because joint and several liability arises from the
partnership or joint venture, Civil Code section 1431.2 [Proposition 51] is not
applicable.” (Myrick v. Mastagni (2010) 185 Cal.App.4th 1082, 1091 [111
Cal.Rptr.3d 165], internal citations omitted.)
• “Normally, . . . a partnership or joint venture is liable to an injured third party
for the torts of a partner or venturer acting in furtherance of the enterprise.”
(Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1670 [60
Cal.Rptr.2d 179, 186].)
• “The joint enterprise theory, while rarely invoked outside the automobile
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accident context, is well established and recognized in this state as an exception
to the general rule that imputed liability for the negligence of another will not be
recognized.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 893 [2
Cal.Rptr.2d 79, 820 P.2d 181], internal citation omitted.)
• “The term ‘joint enterprise’ may cause some confusion because it is ‘sometimes
used to define a noncommercial undertaking entered into by associates with
equal voice in directing the conduct of the enterprise . . . .’ However, when it is
‘used to describe a business or commercial undertaking[,] it has been used
interchangeably with the term “joint venture” and courts have not drawn any
significant legal distinction between the two.’ ” (Jeld-Wen, Inc., supra, 131
Cal.App.4th at p. 872, internal citation omitted.)
• “In the annotations [to Restatement of the Law of Torts, section 491], many
California cases are cited holding that to have a joint venture there must be ‘ “a
community of interest in objects and equal right to direct and govern movements
and conduct of each other with respect thereto. Each must have voice and right
to be heard in its control and management” . . .’ ” (Shook, supra, 96 Cal.App.2d
at pp. 969–970.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1386
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.07 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Actions, § 82.16 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.132
(Matthew Bender)
35 California Forms of Pleading and Practice, Ch. 401, Partnerships: Actions
Between General Partners and Partnership, § 401.11 (Matthew Bender)
17 California Points and Authorities, Ch. 170, Partnerships, § 170.222 (Matthew
Bender)
California Civil Practice: Torts §§ 3:38–3:39 (Thomson Reuters)
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3713. Nondelegable Duty
[Name of defendant] has a duty that cannot be delegated to another
person arising from [insert name, popular name, or number of regulation,
statute, or ordinance/a contract between the parties/other, e.g., the
landlord-tenant relationship]. Under this duty,
[insert requirements of regulation, statute, or ordinance or otherwise describe
duty].
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
the conduct of [name of independent contractor] and that [name of
defendant] is responsible for this harm. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] hired [name of independent contractor] to
[describe job involving nondelegable duty, e.g., repair the roof];
2. That [name of independent contractor] [specify wrongful conduct in
breach of duty, e.g., did not comply with this law];
3. That [name of plaintiff] was harmed; and
4. That [name of independent contractor]’s conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New October 2004; Revised June 2010
Directions for Use
Use this instruction with regard to the liability of the hirer for the torts of an
independent contractor if a nondelegable duty is imposed on the hirer by statute,
regulation, ordinance, contract, or common law. (See Barry v. Raskov (1991) 232
Cal.App.3d 447, 455 [283 Cal.Rptr. 463].)
Sources and Authority
• “As a general rule, a hirer of an independent contractor is not liable for physical
harm caused to others by the act or omission of the independent contractor.
There are multiple exceptions to the rule, however, one being the doctrine of
nondelegable duties . . . . ‘ “A nondelegable duty is a definite affirmative duty
the law imposes on one by reason of his or her relationship with others. One
cannot escape this duty by entrusting it to an independent contractor.” A
nondelegable duty may arise when a statute or regulation requires specific
safeguards or precautions to ensure others’ safety. [Citation.] . . .’ ” (J.L. v.
Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 400 [99 Cal.Rptr.3d 5],
internal citations omitted.)
• “Nondelegable duties ‘derive from statutes [,] contracts, and common law
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precedents.’ They ‘do not rest upon any personal negligence of the employer.
They are rules of vicarious liability, making the employer liable for the
negligence of the independent contractor, irrespective of whether the employer
has himself been at fault. They arise in situations in which, for reasons of policy,
the employer is not permitted to shift the responsibility for the proper conduct of
the work to the contractor. The liability imposed is closely analogous to that of a
master for the negligence of his servant. [¶] The statement commonly made in
such cases is that the employer is under a duty which he is not free to delegate
to the contractor. Such a “non-delegable duty” requires the person upon whom it
is imposed to answer for it that care is exercised by anyone, even though he be
an independent contractor, to whom the performance of the duty is entrusted.’ ”
(Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 316 [111 Cal.Rptr.3d 787],
internal citations omitted.)
• “The rationale of the nondelegable duty rule is ‘to assure that when a negligently
caused harm occurs, the injured party will be compensated by the person whose
activity caused the harm[.]’ The ‘recognition of nondelegable duties tends to
insure that there will be a financially responsible defendant available to
compensate for the negligent harms caused by that defendant’s activity[.]’ Thus,
the nondelegable duty rule advances the same purposes as other forms of
vicarious liability.” (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721,
727 [28 Cal.Rptr.2d 672], internal citations and footnote omitted.)
• “Simply stated, ‘ “[t]he duty which a possessor of land owes to others to put and
maintain it in reasonably safe condition is nondelegable. If an independent
contractor, no matter how carefully selected, is employed to perform it, the
possessor is answerable for harm caused by the negligent failure of his
contractor to put or maintain the buildings and structures in reasonably safe
condition[.]” ’ ” (Srithong, supra, 23 Cal.App.4th at p. 726.)
• “Nondelegable duties may arise when a statute provides specific safeguards or
precautions to insure the safety of others.” (Felmlee v. Falcon Cable Co. (1995)
36 Cal.App.4th 1032, 1039 [43 Cal.Rptr.2d 158].)
• “Unlike strict liability, a nondelegable duty operates, not as a substitute for
liability based on negligence, but to assure that when a negligently caused harm
occurs, the injured party will be compensated by the person whose activity
caused the harm and who may therefore properly be held liable for the
negligence of his agent, whether his agent was an employee or an independent
contractor.” (Maloney v. Rath (1968) 69 Cal. 2d 442, 446 [71 Cal.Rptr. 897, 445
P.2d 513].)
• A California public agency is subject to the imposition of a nondelegable duty in
the same manner as any private individual. (Gov. Code, § 815.4; Jordy v. County
of Humboldt (1992) 11 Cal.App.4th 735, 742 [14 Cal.Rptr.2d 553].)
• “It is undisputable that ‘[t]he question of duty is . . . a legal question to be
determined by the court.’ ” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th
1155, 1184 [82 Cal.Rptr.2d 162] internal citation omitted.) “When a court finds
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that a defendant has a nondelegable duty as a matter of law, the instruction given
by the court should specifically inform the jurors of that fact and not leave them
to speculate on the subject.” (Id. at p. 1187, fn. 5.)
• “ ‘Where the law imposes a definite, affirmative duty upon one by reason of his
relationship with others, whether as an owner or proprietor of land or chattels or
in some other capacity, such persons can not escape liability for a failure to
perform the duty thus imposed by entrusting it to an independent
contractor . . . . It is immaterial whether the duty thus regarded as
“nondelegable” be imposed by statute, charter or by common law.’ ” (Snyder v.
Southern California Edison Co. (1955) 44 Cal.2d 793, 800 [285 P.2d 912],
internal citation omitted.)
• “[T]o establish a defense to liability for damages caused by a brake failure, the
owner and operator must establish not only that ‘ “he did what might reasonably
be expected of a person of ordinary prudence, acting under similar
circumstances, who desired to comply with the law” ’ but also that the failure
was not owing to the negligence of any agent, whether employee or independent
contractor, employed by him to inspect or repair the brakes.” (Clark v. Dziabas
(1968) 69 Cal.2d 449, 451 [71 Cal.Rptr. 901, 445 P.2d 517], internal citation
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1401
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.05[3][d] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.10[2][d] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.22[2][c] (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.42 (Matthew Bender)
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3714. Ostensible Agency—Physician-Hospital Relationship
[Name of plaintiff] claims that [name of hospital] is responsible for [name
of physician]’s conduct because [name of physician] was [name of
hospital]’s apparent [employee/agent]. To establish this claim, [name of
plaintiff] must prove both of the following:
1. That [name of hospital] held itself out to the public as a provider
of care; and
2. That [name of plaintiff] looked to [name of hospital] for services,
rather than selecting [name of physician] for services.
[A hospital holds itself out to the public as a provider of care unless the
hospital gives notice to a patient that a physician is not an [employee/
agent] of the hospital. However, the notice may not be adequate if a
patient in need of medical care cannot be expected to understand or act
on the information provided. In deciding whether [name of plaintiff] has
proved element 1, you must take into consideration [name of plaintiff]’s
condition at the time and decide whether any notice provided was
adequate to give a reasonable person in [name of plaintiff]’s condition
notice of the disclaimer.]
New November 2021
Directions for Use
Use this instruction only if a patient claims that a hospital defendant is responsible
for a physician’s negligence or other wrongful conduct. Give this instruction with
CACI No. 3701, Tort Liability Asserted Against Principal—Essential Factual
Elements, if the plaintiff is relying on the doctrine of ostensible agency to establish
the principal-agent relationship in CACI No. 3701.
Include the bracketed paragraph only if the hospital claims it notified the plaintiff
that the physician was not its employee or agent.
Sources and Authority
• Agency Is Actual or Ostensible. Civil Code section 2298.
• “Ostensible Agency” Defined. Civil Code section 2300.
• “Ostensible Authority” Defined. Civil Code section 2317.
• When Principal is Bound by Ostensible Agent. Civil Code section 2334.
• “Where a patient seeks to hold a hospital liable for the negligence of a
physician, the doctrine of ostensible agency is now commonly expressed as
having two elements: ‘(1) conduct by the hospital that would cause a reasonable
person to believe that the physician was an agent of the hospital, and (2) reliance
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on that apparent agency relationship by the plaintiff.’ Generally, the first element
is satisfied ‘when the hospital “holds itself out” to the public as a provider of
care,’ ‘unless it gave the patient contrary notice.’ Nonetheless, a hospital’s
‘contrary notice’ may be insufficient ‘to avoid liability in an emergency room
context, where an injured patient in need of immediate medical care cannot be
expected to understand or act upon that information.’ Reliance upon an apparent
agency is demonstrated ‘when the plaintiff “looks to” the hospital for services,
rather than to an individual physician.’ Ultimately, ‘there is really only one
relevant factual issue: whether the patient had reason to know that the physician
was not an agent of the hospital. As noted above, hospitals are generally deemed
to have held themselves out as the provider of services unless they gave the
patient contrary notice, and the patient is generally presumed to have looked to
the hospital for care unless he or she was treated by his or her personal
physician. Thus, unless the patient had some reason to know of the true
relationship between the hospital and the physician—i.e., because the hospital
gave the patient actual notice or because the patient was treated by his or her
personal physician—ostensible agency is readily inferred.’ ” (Markow v. Rosner
(2016) 3 Cal.App.5th 1027, 1038 [208 Cal.Rptr.3d 363], internal citations
omitted.)
• “It is well established in California that a hospital may be liable for the
negligence of physicians on the staff, unless the hospital has clearly notified the
patient that the treating physicians are not hospital employees and there is no
reason to believe the patient was unable to understand or act on the information.
This rule is founded on the theory of ostensible agency.” (Wicks v. Antelope
Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 882 [263 Cal.Rptr.3d 397].)
• “[T]he adequacy of the notice is only one of the many fact questions that arise
under ostensible agency. The jury must also determine whether the patient
entrusted herself to the hospital, whether the hospital selected the doctor, and
whether the patient reasonably believed the doctor was an agent of the hospital.”
(Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 641 [188
Cal.Rptr.3d 246].)
• “Effectively, all a patient needs to show is that he or she sought treatment at the
hospital, which is precisely what plaintiff alleged in this case. Unless the
evidence conclusively indicates that the patient should have known that the
treating physician was not the hospital’s agent, such as when the patient is
treated by his or her personal physician, the issue of ostensible agency must be
left to the trier of fact.” (Mejia v. Community Hospital of San Bernardino (2002)
99 Cal.App.4th 1448, 1458 [122 Cal.Rptr.2d 233].)
• “Neither Mejia, Whitlow, nor Markow is factually on point with this case. Yet all
three opinions inform our decision in this case. They rest on the same principle
of California law, that although a hospital may not control, direct or supervise
physicians on its staff, a hospital may be liable for their negligence on an
ostensible agency theory, unless (1) the hospital gave the patient actual notice
that the treating physicians are not hospital employees, and (2) there is no reason
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to believe the patient was unable to understand or act on the information, or (3)
the patient was treated by his or her personal physician and knew or should have
known the true relationship between the hospital and physician.” (Wicks, supra,
49 Cal.App.5th at p. 884.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 1–4
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13 et seq.
(Matthew Bender)
3715–3719. Reserved for Future Use
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3720. Scope of Employment
[Name of plaintiff] must prove that [name of agent] was acting within the
scope of [his/her/nonbinary pronoun] [employment/authorization] when
[name of plaintiff] was harmed.
Conduct is within the scope of [employment/authorization] if:
(a) It is reasonably related to the kinds of tasks that the [employee/
agent] was employed to perform; or
(b) It is reasonably foreseeable in light of the employer’s business or
the [agent’s/employee’s job] responsibilities.
New September 2003
Directions for Use
For an instruction on the scope of employment in cases involving on-duty peace
officers, see CACI No. 3721, Scope of Employment—Peace Offıcer’s Misuse of
Authority.
This instruction is closely related to CACI No. 3723, Substantial Deviation, which
focuses on when an act is not within the scope of employment.
Sources and Authority
• “The question of scope of employment is ordinarily one of fact for the jury to
determine.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221 [285
Cal.Rptr. 99, 814 P.2d 1341].)
• “The facts relating to the applicability of the doctrine of respondeat superior are
undisputed in the instant case, and we conclude that as a matter of law the
doctrine is applicable and that the trial court erred in its instructions in leaving
the issue as one of fact to the jury.” (Hinman v. Westinghouse Electric Co.
(1970) 2 Cal.3d 956, 963 [88 Cal.Rptr. 188, 471 P.2d 988], original italics.)
• “The burden of proof is on the plaintiff to demonstrate that the negligent act was
committed within the scope of his employment.” (Ducey v. Argo Sales Co.
(1979) 25 Cal.3d 707, 721 [159 Cal.Rptr. 835, 602 P.2d 755].)
• “That the employment brought the tortfeasor and victim together in time and
place is not enough . . . . [T]he incident leading to injury must be an
‘outgrowth’ of the employment [or] the risk of tortious injury must be ‘inherent
in the working environment’ or ‘typical of or broadly incidental to the enterprise
[the employer] has undertaken.’ ” (Lisa M. v. Henry Mayo Newhall Memorial
Hospital (1995) 12 Cal.4th 291, 298 [48 Cal.Rptr.2d 510, 907 P.2d 358], internal
citations omitted.)
• “In California, the scope of employment has been interpreted broadly under the
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respondeat superior doctrine.” (Farmers Insurance Group v. County of Santa
Clara (1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].)
• “California courts have used different language when phrasing the test for scope
of employment under the respondeat superior doctrine. (See Sources and
Authority for CACI No. 3720 [scope of employment].)” (Moreno v. Visser
Ranch, Inc. (2018) 30 Cal.App.5th 568, 576–577 [241 Cal.Rptr.3d 678].)
• “[R]espondeat superior liability attaches if the activities ‘that cause[d] the
employee to become an instrumentality of danger to others’ were undertaken
with the employer’s permission and were of some benefit to the employer or, in
the absence of proof of benefit, the activities constituted a customary incident of
employment.” (Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499,
509 [159 Cal.Rptr.3d 912].)
• “Tortious conduct that violates an employee’s official duties or disregards the
employer’s express orders may nonetheless be within the scope of employment.
So may acts that do not benefit the employer, or are willful or malicious in
nature.” (Mary M., supra, 54 Cal.3d at p. 209, internal citations omitted.)
• “A risk arises out of the employment when ‘in the context of the particular
enterprise an employee’s conduct is not so unusual or startling that it would
seem unfair to include the loss resulting from it among other costs of the
employer’s business. In other words, where the question is one of vicarious
liability, the inquiry should be whether the risk was one “that may fairly be
regarded as typical of or broadly incidental” to the enterprise undertaken by the
employer.’ Accordingly, the employer’s liability extends beyond his actual or
possible control of the employee to include risks inherent in or created by the
enterprise.” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968
[227 Cal.Rptr. 106, 719 P.2d 676].)
• “California no longer follows the traditional rule that an employee’s actions are
within the scope of employment only if motivated, in whole or part, by a desire
to serve the employer’s interests.” (Lisa M., supra, 12 Cal.4th at p. 297.)
• “One way to determine whether a risk is inherent in, or created by, an enterprise
is to ask whether the actual occurrence was a generally foreseeable consequence
of the activity. However, ‘foreseeability’ in this context must be distinguished
from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’
means a level of probability which would lead a prudent person to take effective
precautions whereas ‘foreseeability’ as a test for respondeat superior merely
means that in the context of the particular enterprise an employee’s conduct is
not so unusual or startling that it would seem unfair to include the loss resulting
from it among other costs of the employer’s business.” (Farmers Ins. Group,
supra, 11 Cal.4th at pp. 1003–1004, original italics.)
• “[T]he employer is liable not because the employer has control over the
employee or is in some way at fault, but because the employer’s enterprise
creates inevitable risks as a part of doing business.” (Moreno, supra, 30
Cal.App.5th at p. 577.)
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• “The employment . . . must be such as predictably to create the risk employees
will commit [torts] of the type for which liability is sought.” (Lisa M., supra, 12
Cal.4th at p. 299.)
• “Some courts employ a two-prong test to determine whether an employee’s
conduct was within the scope of his employment for purposes of respondeat
superior liability, asking whether ‘ “1) the act performed was either required or
‘incident to his duties’ [citation], or 2) the employee’s misconduct could be
reasonably foreseen by the employer in any event [citation].” [Citation.]’ ”
(Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220
Cal.App.4th 87, 94 [162 Cal.Rptr.3d 752].)
• “[T]he fact that the predominant motive of the servant is to benefit himself or a
third person does not prevent the act from being within the scope of
employment.” (Moreno, supra, 30 Cal.App.5th at p. 584.)
• “[I]n some cases, a cell phone call clearly would give rise to respondeat superior
liability: ‘We envision the link between respondeat superior and most work-
related cell phone calls while driving as falling along a continuum. Sometimes
the link between the job and the accident will be clear, as when an employee is
on the phone for work at the moment of the accident.’ ” (Ayon v. Esquire
Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 495 [238 Cal.Rptr.3d
185], original italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 186–205
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent
(Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
California Civil Practice: Torts § 3:8 (Thomson Reuters)
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3721. Scope of Employment—Peace Officer’s Misuse of Authority
[Name of plaintiff] must prove that [name of agent] was acting within the
scope of [his/her/nonbinary pronoun] [employment/authorization] when
[name of plaintiff] was harmed.
The conduct of a peace officer is within the scope of [his/her/nonbinary
pronoun] employment as a peace officer if all of the following are true:
(a) The conduct occurs while the peace officer is on duty as a peace
officer;
(b) The conduct occurs while the peace officer is exercising [his/her/
nonbinary pronoun] authority as a peace officer; and
(c) The conduct results from the use of [his/her/nonbinary pronoun]
authority as a peace officer.
New September 2003
Sources and Authority
• “[W]e hold that when, as in this case, a police officer on duty misuses his
official authority by raping a woman whom he has detained, the public entity
that employs him can be held vicariously liable. This does not mean that, as a
matter of law, the public employer is vicariously liable whenever an on-duty
officer commits a sexual assault. Rather, this is a question of fact for the jury.”
(Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221 [285 Cal.Rptr. 99,
814 P.2d 1341].)
• “The use of authority is incidental to the duties of a police officer. The County
enjoys tremendous benefits from the public’s respect for that authority.
Therefore, it must suffer the consequences when the authority is abused.” (White
v. County of Orange (1985) 166 Cal.App.3d 566, 572 [212 Cal.Rptr. 493].)
• “It is questionable whether the holding in Mary M. is still viable. Indeed, the
Chief Justice of California has described it as an ‘aberrant holding’ that was
‘wrongly decided’ and should be ‘overrule[d].’ Nonetheless, it remains the rule
of law unless a majority of the California Supreme Court decides otherwise.”
(M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 124 [98 Cal.Rptr.3d
812], internal citations omitted.)
• “We reject plaintiff’s effort to apply Mary M. to the facts of this case. For
reasons that follow, we conclude the Mary M. holding that a public employer of
a police officer may be vicariously liable for a sex crime committed by the
officer against a person detained by the officer while on duty is, at best, limited
to such acts by an on-duty police officer and does not extend to any other form
of employment, including firefighting. Thus, as a matter of law, the alleged
sexual assault by firefighters in this case was not conduct within in the scope of
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their employment and cannot support a finding that their employer . . . is
vicariously liable for the harm.” (M.P., supra, 177 Cal.App.4th at p. 124; see
also Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 893–902 [189
Cal.Rptr.3d 570] [Mary M. not applicable to sexual assault by social worker on
foster child].)
• “Appellants argue they fall within Mary M. because [employee]’s misconduct
arose from the abuse of his authority as a law enforcement officer. The County
counters that [employee] was a correctional officer, not a law enforcement
officer. However, whether [employee] is classified as a law enforcement officer
or not is immaterial. The power or privilege that [employee] abused, i.e., his
access to the correctional management computer system, is totally different from
the unique and formidable power and authority police officers have over
members of the public or people under their control. [Employee] had no
authority or control over appellants. As courts have noted, ‘ “police officers
[exercise] the most awesome and dangerous power that a democratic state
possesses with respect to its residents—the power to use lawful force to arrest
and detain them.” ’ This is not the case with a correctional officer who processes
paperwork and has access to a jail computer system. Rather in this context, the
criminal conduct underlying appellants’ action, namely the illegal act of writing
the letters using the information gathered from the jail computer system for
totally non-work-related purposes, must be considered unusual or startling.”
(Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 103–104 [155
Cal.Rptr.3d 219], internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 180, 190, 191, 196, 201
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][f][ii] (Matthew
Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.26 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:8 (Thomson Reuters)
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3722. Scope of Employment—Unauthorized Acts
An employee’s unauthorized conduct may be within the scope of
[employment/authorization] if [the conduct was committed in the course
of a series of acts authorized by the employer] [or] [the conduct arose
from a risk inherent in or created by the enterprise].
[An employee’s wrongful or criminal conduct may be within the scope of
employment even if it breaks a company rule or does not benefit the
employer.]
New September 2003
Sources and Authority
• “[T]he employer’s liability extends beyond his actual or possible control of the
employee to include risks inherent in or created by the enterprise.” (Perez v. Van
Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968 [227 Cal.Rptr. 106, 719 P.2d
676].)
• “The fact that an employee is not engaged in the ultimate object of his
employment at the time of his wrongful act does not preclude attribution of
liability to an employer . . . . [T]he proper inquiry is not whether the wrongful
act itself was authorized but whether it was committed in the course of a series
of acts of the agent which were authorized by the principal.” (Mary M. v. City of
Los Angeles (1991) 54 Cal.3d 202, 219 [285 Cal.Rptr. 99, 814 P.2d 1341],
internal citations omitted.)
• “Tortious conduct that violates an employee’s official duties or disregards the
employer’s express orders may nonetheless be within the scope of employment.
So may acts that do not benefit the employer, or are willful or malicious in
nature.” (Mary M., supra, 54 Cal.3d at p. 209, internal citations omitted.)
• “Equally well established, if somewhat surprising on first encounter, . . . that an
employee’s willful, malicious and even criminal torts may fall within the scope
of his or her employment for purposes of respondeat superior, even though the
employer has not authorized the employee to commit crimes or intentional torts.”
(Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291,
296–297 [48 Cal.Rptr.2d 510, 907 P.2d 358], internal citations omitted.)
• “California no longer follows the traditional rule that an employee’s actions are
within the scope of employment only if motivated, in whole or part, by a desire
to serve the employer’s interests . . . . [¶] ‘It is suffıcient . . . if the injury
resulted from a dispute arising out of the employment . . . . “It is not necessary
that the assault should have been made ‘as a means, or for the purpose of
performing the work he (the employee) was employed to do.’ ” ’ ” (Lisa M.,
supra, 12 Cal.4th at p. 297, original italics, internal citations omitted.)
• “Although an employee’s willful, malicious, and even criminal torts may fall
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within the scope of employment, ‘an employer is not strictly liable for all actions
of its employees during working hours.’ For the employer to be liable for an
intentional tort, the employee’s act must have a ‘causal nexus to the employee’s
work.’ Courts have used various terms to describe this causal nexus: the incident
leading to the injury must be an ‘ “outgrowth” ’ of the employment; the risk of
tortious injury must be ‘ “ ‘inherent in the working environment’ ” ’; the risk
must be ‘ “ ‘typical’ ” ’ or ‘ “ ‘broadly incidental’ ” ’ to the employer’s business;
the tort was ‘ “a generally foreseeable consequence” ’ of the employer’s
business.” (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515,
1521 [168 Cal.Rptr.3d 123], internal citations omitted.)
• “The question, then, is whether an employee’s physical eruption, stemming from
his interaction with a customer, is a predictable risk of retail employment. Our
Supreme Court has suggested it may well be: ‘Flare-ups, frustrations, and
disagreements among employees are commonplace in the workplace and may
lead to “physical act[s] of aggression.” In bringing [people] together, work
brings [personal] qualities together, causes frictions between them, creates
occasions for lapses into carelessness, and for fun-making and emotional
flareup . . . . These expressions of human nature are incidents inseparable from
working together. They involve risks of injury and these risks are inherent in the
working environment.’ ” (Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th
373, 381 [74 Cal.Rptr.3d 178], internal citations omitted.)
• “Sexual assaults are not per se beyond the scope of employment. But courts
have rarely held an employee’s sexual assault or sexual harassment of a third
party falls within the scope of employment.” (Daza v. Los Angeles Community
College Dist. (2016) 247 Cal.App.4th 260, 268 [202 Cal.Rptr.3d 115], internal
citations omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 196–201
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][d], [f] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.22 (Matthew Bender)
California Civil Practice: Torts §§ 3:11–3:12 (Thomson Reuters)
744
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3723. Substantial Deviation
If [an employee/a representative] combines the
[employee/representative]’s personal business with the employer’s
business, then the [employee/representative]’s conduct is within the scope
of [employment/authorization] unless the [employee/representative]
substantially deviates from the employer’s business.
Deviations that do not amount to abandoning the employer’s business,
such as incidental personal acts, minor delays, or deviations from the
most direct route, are reasonably expected and within the scope of
employment.
[Acts that are necessary for [an employee/a representative]’s comfort,
health, and convenience while at work are within the scope of
employment.]
New September 2003; Revised June 2006, April 2008, June 2014, May 2020
Directions for Use
This instruction may be given with CACI No. 3720, Scope of Employment, if the
facts indicate that the employee has combined business and personal activities. In
such a situation, the employee’s personal activities must constitute a “substantial
deviation” from or “abandonment” of the employer’s business in order to be outside
of the scope of employment. (See Farmers Ins. Group v. County of Santa Clara
(1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].) The words
“reasonably expected” express foreseeability.
This instruction may be given with CACI No. 3725, Going-and-Coming
Rule—Vehicle-Use Exception, but not with CACI No. 3724, Going-and-Coming
Rule—Business-Errand Exception. (See Moradi v. Marsh USA, Inc. (2013) 219
Cal.App.4th 886, 907–908 [162 Cal.Rptr.3d 280].)
Give the optional third paragraph if the employee was at the work site when the act
giving rise to liability occurred, but was not directly involved in performing job
duties at the time (for example, at lunch or on break). (See Vogt v. Herron
Construction, Inc. (2011) 200 Cal.App.4th 643, 651 [132 Cal.Rptr.3d 683].)
Sources and Authority
• “[C]ases that have considered recovery against an employer for injuries
occurring within the scope and during the period of employment have
established a general rule of liability ‘with a few exceptions’ in instances where
the employee has ‘substantially deviated from his duties for personal purposes.’ ”
(Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 218 [285 Cal.Rptr. 99,
814 P.2d 1341], internal citation omitted.)
• “An exception [to employer liability] is made when the employee has
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substantially deviated from his duties for personal purposes at the time of the
tortious act. While a minor deviation is foreseeable and will not excuse the
employer from liability, a deviation from the employee’s duties that is ‘ “so
material or substantial as to amount to an entire departure” ’ from those duties
will take the employee’s conduct out of the scope of employment.” (Halliburton
Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th
87, 95 [162 Cal.Rptr.3d 752], internal citations omitted.)
• “While the question of whether an employee has departed from his special
errand is normally one of fact for the jury, where the evidence clearly shows a
complete abandonment, the court may make the determination that the employee
is outside the scope of his employment as a matter of law.” (Moradi, supra, 219
Cal.App.4th at p. 907.)
• “In some cases, the relationship between an employee’s work and wrongful
conduct is so attenuated that a jury could not reasonably conclude that the act
was within the scope of employment.” (Mary M., supra, 54 Cal.3d at p. 213,
internal citations omitted.)
• “The fact that an employee is not engaged in the ultimate object of his
employment at the time of his wrongful act does not preclude attribution of
liability to an employer.” (Alma W. v. Oakland Unified School Dist. (1981) 123
Cal.App.3d 133, 139 [176 Cal.Rptr. 287], internal citation omitted.)
• “One traditional means of defining this foreseeability is seen in the distinction
between minor ‘deviations’ and substantial ‘departures’ from the employer’s
business. The former are deemed foreseeable and remain within the scope of
employment; the latter are unforeseeable and take the employee outside the
scope of his employment.” (Moradi, supra, 219 Cal.App.4th at p. 901, original
italics.)
• “ ‘ “[W]here the employee is combining his own business with that of his
employer, or attending to both at substantially the same time, no nice inquiry
will be made as to which business he was actually engaged in at the time of
injury, unless it clearly appears that neither directly nor indirectly could he have
been serving his employer.” ’ ” (Farmers Ins. Group, supra, 11 Cal.4th at p.
1004.)
• “Generally, ‘[i]f the main purpose of [the employee’s] activity is still the
employer’s business, it does not cease to be within the scope of the employment
by reason of incidental personal acts, slight delays, or deflections from the most
direct route.’ ” (Halliburton Energy Services, Inc., supra, 220 Cal.App.4th at p.
98.)
• “Important factors in determining whether there has been a complete departure
or merely a deviation are those of time and place. Thus, the fact that the
employee is on the same route of return which he would use for both his
employer’s mission and his own is a factor tending to show a combination of
missions. The amount of time consumed in the personal activity is likewise to be
weighed. The nature of the digression is also to be considered. If the digression
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VICARIOUS RESPONSIBILITY CACI No. 3723
was in itself an inducement for [employee] to undertake the special errand or
was connected with the performance of the errand, for example, as a reward, the
jury would be entitled to weigh these facts in deciding whether there had been
the complete departure from duty which is requisite to terminate course of
employment.” (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 496–497 [48
Cal.Rptr. 765].)
• “[A]cts necessary to the comfort, convenience, health, and welfare of the
employee while at work, though strictly personal and not acts of service, do not
take the employee outside the scope of employment.” (Vogt, supra, 200
Cal.App.4th at p. 651.)
• “Here, the required vehicle exception to the going and coming rule, not the
special errand exception, governs our analysis. Accordingly, we have not applied
the six factors used in special errand cases to determine whether [employee] was
acting within the scope of her employment at the time of the accident. [¶]
Rather, we have applied the relevant principles under the required vehicle
exception. Those principles differ from the six factors used to determine whether
the special errand exception applies. In the present case, [employer] required
[employee] to use her personal vehicle to travel to and from the office and other
destinations. She also had to use her personal vehicle before, during, and after
regular work hours to develop new business. We have properly examined
whether [employee]’s use of her personal vehicle conferred an incidental benefit
on [employer]—it did; whether her planned stops at the frozen yogurt shop and
the yoga studio were an unforeseeable, substantial departure from her
commute—they were not; whether they were a foreseeable, minor deviation from
her regular commute—they were; whether they were not so unusual or startling
that it would be unfair to include the resulting loss among the other costs of the
employer’s business—they were not; and whether they were necessary for
[employee]’s comfort, convenience, health, and welfare—they were.” (Moradi,
supra, 219 Cal.App.4th at pp. 907–908.)
• “We envision the link between respondeat superior and most work-related cell
phone calls while driving as falling along a continuum. Sometimes the link
between the job and the accident will be clear, as when an employee is on the
phone for work at the moment of the accident. Oftentimes, the link will fall into
a gray zone, as when an employee devotes some portion of his time and
attention to work calls during the car trip so that the journey cannot be fairly
called entirely personal. But sometimes, as here, the link is de minimis—one call
of less than one minute eight or nine minutes before an accident while traveling
on a personal errand of several miles’ duration heading neither to nor from a
worksite. When that happens, we find no respondeat superior as a matter of
law.” (Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1063
[74 Cal.Rptr.3d 776].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 186–205
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6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1865 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, ¶¶ 2:716, 2:735 (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, §§ 100A.28, 100A.35 (Matthew Bender)
California Civil Practice: Torts § 3:8 (Thomson Reuters)
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3724. Social or Recreational Activities
Social or recreational activities that occur after work hours are within
the scope of employment if:
(a) They are carried out with the employer’s stated or implied
permission; and
(b) They either provide a benefit to the employer or have become
customary.
New September 2003; Renumbered From CACI No. 3726 November 2017
Sources and Authority
• This aspect of the scope-of-employment analysis was expressly adopted for use
in respondeat superior cases in Rodgers v. Kemper Construction Co. (1975) 50
Cal.App.3d 608, 620 [124 Cal.Rptr. 143], and reiterated in Childers v. Shasta
Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 804 [235 Cal.Rptr.
641]. It is derived from the workers’ compensation case of McCarty v.
Workmen’s Compensation Appeals Bd. (1974) 12 Cal.3d 677, 681–683 [117
Cal.Rptr. 65, 527 P.2d 617].)
• “[W]here social or recreational pursuits on the employer’s premises after hours
are endorsed by the express or implied permission of the employer and are
‘conceivably’ of some benefit to the employer or, even in the absence of proof of
benefit, if such activities have become ‘a customary incident of the employment
relationship,’ an employee engaged in such pursuits after hours is still acting
within the scope of his employment.” (Rodgers, supra, 50 Cal.App.3d at 620.)
• McCarty has been overruled by statute in the context of workers’ compensation
(see Lab. Code, § 3600(a)(9)). However, courts have acknowledged that “it has
been adopted as a test in establishing liability under respondeat superior.” (West
American Insurance Co. v. California Mutual Insurance Co. (1987) 195
Cal.App.3d 314, 322 [240 Cal.Rptr. 540].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 193, 196, 201
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[3][c] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent
(Matthew Bender)
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10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior (Matthew Bender)
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3725. Going-and-Coming Rule—Vehicle-Use Exception
In general, an employee is not acting within the scope of employment
while traveling to and from the workplace. But if an employer requires
an employee to drive to and from the workplace so that the vehicle is
available for the employer’s business, then the drive to and from work is
within the scope of employment. The employer’s requirement may be
either express or implied.
The drive to and from work may also be within the scope of employment
if the use of the employee’s vehicle provides some direct or incidental
benefit to the employer. There may be a benefit to the employer if (1) the
employee has agreed to make the vehicle available as an accommodation
to the employer, and (2) the employer has reasonably come to rely on the
vehicle’s use and expects the employee to make it available regularly.
The employee’s agreement may be either express or implied.
New September 2003; Revised June 2014, May 2017, May 2019, May 2020
Directions for Use
This instruction sets forth the vehicle use exception to the going-and-coming rule,
sometimes called the required-vehicle exception. (See (Jorge v. Culinary Institute of
America (2016) 3 Cal.App.5th 382, 398, fn. 6 [207 Cal.Rptr.3d 586]; see also
Pierson v. Helmerich & Payne International Drilling Co. (2016) 4 Cal.App.5th 608,
624–630 [209 Cal.Rptr.3d 222 [vehicle-use exception encompasses two categories;
required-vehicle and incidental-use, both of which are expressed within CACI No.
3725].) It may be given with CACI No. 3720, Scope of Employment.
Under the going-and-coming rule, commute time is not within the scope of
employment. However, commute time is within the scope of employment if the use
of a personally owned vehicle is either an express or implied condition of
employment, or if the employee has agreed, expressly or implicitly, to make the
vehicle available as an accommodation to the employer and the employer has
reasonably come to rely on its use and to expect the employee to make the vehicle
available on a regular basis while still not requiring it as a condition of employment.
(See Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301 [105 Cal.Rptr.3d 718].)
Whether there is such a requirement or agreement can be a question of fact for the
jury. (See Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 723 [159 Cal. Rptr. 835,
602 P.2d 755].)
Under this exception, the commute itself is considered the employer’s business.
However, scope of employment may end if the employee substantially deviates from
the commute route for personal reasons. (See Moradi v. Marsh USA, Inc. (2013)
219 Cal.App.4th 886, 899, 907–908 [162 Cal.Rptr.3d 280].) If substantial deviation
is alleged, give CACI No. 3723, Substantial Deviation.
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One court has stated that the employee must have been using the vehicle to do the
employer’s business or provide a benefit for the employer at the time of the
accident. (Newland v. County of L.A. (2018) 24 Cal.App.5th 676, 693 [234
Cal.App.3d 374], emphasis added.) However, many cases have applied the vehicle
use exception without imposing this time-of-the-accident requirement. (See, e.g.,
Moradi, supra, 219 Cal.App.4th at p. 892 (employee was just going home at the
time of the accident); Lobo, supra, 182 Cal.App.4th at p. 302 (same); Huntsinger v.
Glass Containers Corp. (1972) 22 Cal.App.3d 803, 806–807 [99 Cal.Rptr. 666]
(same); see also Smith v. Workers’ Comp. Appeals Bd. (1968) 69 Cal.2d 814, 815
[73 Cal.Rptr. 253, 447 P.2d 365] (workers’ compensation case: accident happened
on the way to work).) Newland could be read as requiring the employee to need the
vehicle for the employer’s business on the day of the accident, even if the employee
was not engaged in the employer’s business at the time of the accident. (See
Newland, supra, 24 Cal.App.5th at p. 696 [“no evidence that [employee] required a
vehicle for work on the day of the accident, and no evidence that the [employer]
received any direct or incidental benefit from [employee] driving to and from work
that day”].)
Sources and Authority
• “ ‘An offshoot of the doctrine of respondeat superior is the so-called “going and
coming rule.” Under this rule, an employee is not regarded as acting within the
scope of employment while going to or coming from the workplace. . . . This is
based on the concept that the employment relationship is suspended from the
time the employee leaves work until he or she returns, since the employee is not
ordinarily rendering services to the employer while traveling. . . .’ ” (Jeewarat v.
Warner Brothers Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435 [98
Cal.Rptr.3d 837].)
• “The ‘required-vehicle’ exception to the going and coming rule and its variants
have been given many labels. In Halliburton, supra, 220 Cal.App.4th 87, we
used the phrase ‘incidental benefit exception’ as the equivalent of the required-
vehicle exception. In Felix v. Asai (1987) 192 Cal.App.3d 926 [237 Cal. Rptr.
718] (Felix), we used the phrase ‘vehicle-use exception.’ The phrase ‘required-
use doctrine’ also has been used. The ‘vehicle-use’ variant appears in the title to
California Civil Jury Instruction (CACI) No. 3725, ‘Going-and-Coming
Rule—Vehicle-Use Exception.’ The various labels and the wide range of
circumstances they cover have the potential to create uncertainty about the
factual elements of the exception—a topic of particular importance when
reviewing a motion for summary judgment for triable issues of material fact. [¶]
To structure our analysis of this exception, and assist the clear statement of the
factual elements of its variants, we adopt the phrase ‘vehicle-use exception’ from
Felix and CACI No. 3725 to describe the exception in its broadest form. Next,
under the umbrella of the vehicle-use exception, we recognize two identifiable
categories with different factual elements. We label those two categories as the
‘required-vehicle exception’ and ‘incidental benefit exception’ because those
labels emphasize the factual difference between the two categories.” (Pierson,
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supra, 4 Cal.App.5th at pp. 624–625, original italics, internal citations omitted.)
• “Our division of the vehicle-use exception for purposes of this summary
judgment motion should not be read as implying that this division is required, or
even helpful, when presenting the scope of employment issue to a jury. The
broad formulation of the vehicle-use exception in CACI No. 3725 correctly
informs the jury that the issue of ultimate fact—namely, the scope of
employment—may be proven in different ways.” (Pierson, supra, 4 Cal.App.5th
at p. 625, fn. 4.)
• “The portion of CACI No. 3725 addressing an employer requirement states: ‘[I]f
an employer requires an employee to drive to and from the workplace so that the
vehicle is available for the employer’s business, then the drive to and from work
is within the scope of employment. The employer’s requirement may be either
express or implied.’ ” (Pierson, supra, 4 Cal.App.5th at p. 625.)
• “Our formulation of the incidental benefit exception is based on the part of
CACI No. 3725 that states: ‘The drive to and from work may . . . be within the
scope of employment if the use of the employee’s vehicle provides some direct
or incidental benefit to the employer. There may be a benefit to the employer if
(1) the employee has agreed to make the vehicle available as an accommodation
to the employer, and (2) the employer has reasonably come to rely on the
vehicle’s use and expects the employee to make it available regularly.’ The
‘agreement may be either express or implied.’ The existence of an express or
implied agreement can be a question of fact for the jury.” (Pierson, supra, 4
Cal.App.5th at p. 629.)
• “[T]he exception ‘covers situations where there is an express or implied
employer requirement. “If an employer requires an employee to furnish a vehicle
as an express or implied condition of employment, the employee will be in the
scope of his employment while commuting to and from the place of his
employment.” ’ Whether there is an express or implied requirement ‘ “can be a
question of fact for the jury,” ’ but ‘the question of fact sometimes can be
decided by a court as a matter of law.’ ” (Savaikie v. Kaiser Foundation
Hospitals (2020) 52 Cal.App.5th 223, 230 [265 Cal.Rptr.3d 92], original italics.)
• “ ‘[W]hen a business enterprise requires an employee to drive to and from its
office in order to have his vehicle available for company business during the day,
accidents on the way to or from the office are statistically certain to occur
eventually, and, the business enterprise having required the driving to and from
work, the risk of such accidents are risks incident to the business enterprise.’ [¶]
These holdings are the bases for the CACI instruction, the first paragraph of
which tells the jury that the drive to and from work is within the scope of
employment if the “employer requires [the] employee to drive to and from the
workplace so that the vehicle is available for the employer’s business,” and the
second paragraph, that the drive may be if ‘the use of the employee’s vehicle
provides some direct or incidental benefit to the employer’ and ‘there may be a
benefit to the employer if, one, the employee has [agreed] to make the vehicle
available as an accommodation to the employer, and two, the employer has
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reasonably come to rely on the vehicle’s use and expect the employee to make it
available regularly.’ (CACI No. 3725.)” (Jorge, supra, 3 Cal.App.5th at pp.
401–402, internal citation omitted.)
• “ ‘A well-known exception to the going-and-coming rule arises where the use of
the car gives some incidental benefit to the employer. Thus, the key inquiry is
whether there is an incidental benefit derived by the employer. [Citation.]’ . . .
The exception can apply if the use of a personally owned vehicle is either an
express or implied condition of employment, or if the employee has agreed,
expressly or implicitly, to make the vehicle available as an accommodation to
the employer and the employer has ‘reasonably come to rely upon its use and
[to] expect the employee to make the vehicle available on a regular basis while
still not requiring it as a condition of employment.’ ” (Lobo, supra, 182
Cal.App.4th at p. 297, original italics, internal citations omitted.)
• “ ‘To be sure, ordinary commuting is beyond the scope of employment . . . .
Driving a required vehicle, however, is a horse of another color because it
satisfies the control and benefit elements of respondeat superior. An employee
who is required to use his or her own vehicle provides an “essential
instrumentality” for the performance of the employer’s work. . . . When a
vehicle must be provided by an employee, the employer benefits by not having
to have available an office car and yet possessing a means by which off-site
visits can be performed by its employees.’ ” (Moradi, supra, 219 Cal.App.4th at
p. 899.)
• “When an employer requires an employee to use a personal vehicle, it exercises
meaningful control over the method of the commute by compelling the employee
to foreswear the use of carpooling, walking, public transportation, or just being
dropped off at work.” (Moradi, supra, 219 Cal.App.4th at p. 899.)
• “The cases invoking the required-vehicle exception all involve employees whose
jobs entail the regular use of a vehicle to accomplish the job in contrast to
employees who use a vehicle to commute to a definite place of business.” (Tryer
v. Ojai Valley School Dist. (1992) 9 Cal.App.4th 1476, 1481 [12 Cal.Rptr.2d
114].)
• “[N]ot all benefits to the employer are of the type that satisfy the incidental
benefits exception. The requisite benefit must be one that is ‘not common to
commute trips by ordinary members of the work force.’ Thus, employers benefit
when employees arrive at work on time, but this benefit is insufficient to satisfy
the incidental benefits exception. An example of a sufficient benefit is where an
employer enlarges the available labor market by providing travel expenses and
paying for travel time.” (Pierson, supra, 4 Cal.App.5th at p. 630.)
• “Where the incidental benefit exception applies, the employee’s commute
directly between work and home is considered to be within the scope of
employment for respondeat superior purposes. Minor deviations from a direct
commute are also included, but there is no respondeat superior liability if the
employee substantially departs from the employer’s business or is engaged in a
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purely personal activity at the time of the tortious injury.” (Halliburton Energy
Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 97
[162 Cal.Rptr.3d 752].)
• “Here, the required vehicle exception to the going and coming rule, not the
special errand exception, governs our analysis. Accordingly, we have not applied
the six factors used in special errand cases to determine whether [employee] was
acting within the scope of her employment at the time of the accident. [¶]
Rather, we have applied the relevant principles under the required vehicle
exception. Those principles differ from the six factors used to determine whether
the special errand exception applies. In the present case, [employer] required
[employee] to use her personal vehicle to travel to and from the office and other
destinations. She also had to use her personal vehicle before, during, and after
regular work hours to develop new business. We have properly examined
whether [employee]’s use of her personal vehicle conferred an incidental benefit
on [employer]—it did; whether her planned stops at the frozen yogurt shop and
the yoga studio were an unforeseeable, substantial departure from her
commute—they were not; whether they were a foreseeable, minor deviation from
her regular commute—they were; whether they were not so unusual or startling
that it would be unfair to include the resulting loss among the other costs of the
employer’s business—they were not; and whether they were necessary for
[employee]’s comfort, convenience, health, and welfare—they were.” (Moradi,
supra, 219 Cal.App.4th at pp. 907–908.)
• “One exception to the going and coming rule has been recognized when the
commute involves ‘ “an incidental benefit to the employer, not common to
commute trips by ordinary members of the work force.” [Citation.]’ When the
employer incidentally benefits from the employee’s commute, that commute may
become part of the employee’s workday for the purposes of respondeat superior
liability. [¶] The incidental benefit exception has been applied when the
employer furnishes, or requires the employee to furnish, a vehicle for
transportation on the job, and the negligence occurs while the employee is
traveling to or from work in that vehicle.” (Halliburton Energy Services, Inc.,
supra, 220 Cal.App.4th at p. 96, internal citation omitted.)
• “[T]he employer benefits when a vehicle is available to the employee during off-
duty hours in case it is needed for emergency business trips.” (Moreno v. Visser
Ranch, Inc. (2018) 30 Cal.App.5th 568, 580 [241 Cal.Rptr.3d 678].)
• “Public policy would be ill-served by a rule establishing 24-hour employer
liability for on-call employees, regardless of the nature of the employee’s
activities at the time of an accident.” (Le Elder v. Rice (1994) 21 Cal.App.4th
1604, 1610 [26 Cal.Rptr.2d 749].)
• “[T]he trier of fact remains free to determine in a particular case that the
employee’s use of his or her vehicle was too infrequent to confer a sufficient
benefit to the employer so as to make it reasonable to require the employer to
bear the cost of the employee’s negligence in operating the vehicle. This is
particularly true in the absence of an express requirement that the employee
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make his or her vehicle available for the employer’s benefit or evidence that the
employer actually relied on the availability of the employee’s car to further the
employer’s purposes.” (Lobo v. Tamco (2014) 230 Cal.App.4th 438, 447 [178
Cal.Rptr.3d 515].)
• “Whether the transit is part of the employment relationship tends to be a more
subtle issue than whether the transit was between home and work. . . . ‘These
are the extraordinary transits that vary from the norm because the employer
requires a special, different transit, means of transit, or use of a car, for some
particular reason of his own. When the employer gains that kind of a particular
advantage, the job does more than call for routine transport to it; it plays a
different role, bestowing a special benefit upon the employer by reason of the
extraordinary circumstances. The employer’s special request, his imposition of an
unusual condition, removes the transit from the employee’s choice or
convenience and places it within the ambit of the employer’s choice or
convenience, restoring the employer-employee relationship.’ ” (Zhu v. Workers’
Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1038–1039 [219 Cal.Rptr.3d
630].)
• “Liability may be imposed on an employer for an employee’s tortious conduct
while driving to or from work, if at the time of the accident, the employee’s use
of a personal vehicle was required by the employer or otherwise provided a
benefit to the employer.” (Newland, supra, 24 Cal.App.5th at p. 679.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 195
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, ¶ 2:803 (The Rutter Group)
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3][d] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.05[4][a] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.26 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:10 (Thomson Reuters)
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3726. Going-and-Coming Rule—Business-Errand Exception
In general, an employee is not acting within the scope of employment
while traveling to and from the workplace. But if the employee, while
commuting, is on an errand for the employer, then the employee’s
conduct is within the scope of the employee’s employment from the time
the employee starts on the errand until the employee returns from the
errand or until the employee completely abandons the errand for
personal reasons.
In determining whether an employee has completely abandoned a
business errand for personal reasons, you may consider the following:
a. The intent of the employee;
b. The nature, time, and place of the employee’s conduct;
c. The work the employee was hired to do;
d. The incidental acts the employer should reasonably have expected
the employee to do;
e. The amount of freedom allowed the employee in performing [his/
her/nonbinary pronoun] duties; and
f. The amount of time consumed in the personal activity;
g. [specify other factors, if any].
New September 2003; Revised June 2014, June 2017, Revised and Renumbered from
CACI No. 3724 November 2017; Revised May 2020
Directions for Use
This instruction sets forth the business errand exception to the going-and-coming
rule, sometimes called the “special errand” or “special mission” exception. (Sumrall
v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 968, fn. 1 [216 Cal.Rptr.3d 848];
see Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608,
632–633, fn.6 [209 Cal.Rptr.3d 222] [citing this instruction].) It may be given with
CACI No. 3720, Scope of Employment.
Under the going-and-coming rule, commute time is not within the scope of
employment. However, if the employee is engaged in a “special errand” or a
“special mission” for the employer while commuting, it will negate the going-and-
coming rule and put the employee within the scope of employment. (Jeewarat v.
Warner Brothers Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435–436 [98
Cal.Rptr.3d 837].)
Scope of employment ends once the employee abandons or substantially deviates
from the special errand. The second paragraph sets forth factors that the jury may
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consider in determining whether there has been abandonment of a business errand.
(See Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 907 [162 Cal.Rptr.3d
280] [opinion may be read to suggest that for the business-errand exception, CACI
No. 3723, Substantial Deviation, should not be given].)
Sources and Authority
• “ ‘An offshoot of the doctrine of respondeat superior is the so-called “going and
coming rule.” Under this rule, an employee is not regarded as acting within the
scope of employment while going to or coming from the workplace. . . . This is
based on the concept that the employment relationship is suspended from the
time the employee leaves work until he or she returns, since the employee is not
ordinarily rendering services to the employer while traveling. . . .’ ” (Jeewarat,
supra, 177 Cal.App.4th at p. 435.)
• “ ‘The special-errand exception to the going-and-coming rule is stated as
follows: “If the employee is not simply on his way from his home to his normal
place of work or returning from said place to his home for his own purpose, but
is coming from his home or returning to it on a special errand either as part of
his regular duties or at a specific order or request of his employer, the employee
is considered to be in the scope of his employment from the time that he starts
on the errand until he has returned or until he deviates therefrom for personal
reasons.” ’ ” (Moradi, supra, 219 Cal.App.4th at p. 906, original italics.)
• “When an employee is engaged in a ‘special errand’ or a ‘special mission’ for
the employer it will negate the ‘going and coming rule.’ . . . The employer is
‘liable for torts committed by its employee while traveling to accomplish a
special errand because the errand benefits the employer. . . .’ ” (Jeewarat, supra,
177 Cal.App.4th at p. 436, internal citations omitted.)
• “The term ‘special errand’ is something of a misnomer because it implies that
the employer must make a specific request for a particular errand. However, the
‘special errand’ can also be part of the employee’s regular duties. Thus, we have
chosen to use the term ‘business errand’ throughout this opinion, as it is more
precise and descriptive.” (Sumrall, supra, 10 Cal.App.5th at p. 968 fn.1, internal
citation omitted.)
• “[T]he jury’s instruction on the business errand exception explains it
concisely: . . . .” (Sumrall, supra, 10 Cal.App.5th at p. 969, quoting this
instruction.)
• “It is not necessary that the employee is directly engaged in his job duties;
included also are errands that incidentally or indirectly benefit the employer. It is
essential, however, that the errand be either part of the employee’s regular duties
or undertaken at the specific request of the employer.” (Morales-Simental v.
Genentech, Inc. (2017) 16 Cal.App.5th 445, 452–453 [224 Cal.Rptr.3d 319],
internal citation omitted.)
• “[T]he mere fact that a trip may be related to an employee’s job does not impose
liability on the employer. . . . [T]o bring an employee’s trip within the special
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errand exception, the employer must request or at least expect it of the
employee.” (Morales-Simental, supra, 16 Cal.App.5th at p. 455, internal citation
omitted.)
• “[Plaintiffs] assert that [employee], as a supervisorial employee tasked with
hiring, had authority to act on [employer]’s behalf and, in essence, request
himself to complete a special errand connected to that task. This argument finds
no support in the extensive body of going and coming case law, and we decline
plaintiffs’ invitation to expand the special errand exception in the manner they
suggest. What they propose is an invitation to self-serving pretense by anyone
with a plausible claim to supervisorial authority.” (Morales-Simental, supra, 16
Cal.App.5th at p. 456.)
• “[I]n determining whether an employee has completely abandoned pursuit of a
business errand for pursuit of a personal objective, a variety of relevant
circumstances should be considered and weighed. Such factors may include [(1)]
the intent of the employee, [(2)] the nature, time and place of the employee’s
conduct, [(3)] the work the employee was hired to do, [(4)] the incidental acts
the employer should reasonably have expected the employee to do, [(5)] the
amount of freedom allowed the employee in performing his duties, and [(6)] the
amount of time consumed in the personal activity. . . . While the question of
whether an employee has departed from his special errand is normally one of
fact for the jury, where the evidence clearly shows a complete abandonment, the
court may make the determination that the employee is outside the scope of his
employment as a matter of law.” (Moradi, supra, 219 Cal.App.4th at p. 907,
original italics.)
• “Several general examples of the special-errand exception appear in the cases.
One would be where an employee goes on a business errand for his employer
leaving from his workplace and returning to his workplace. Generally, the
employee is acting within the scope of his employment while traveling to the
location of the errand and returning to his place of work. The exception also
may be applicable to the employee who is called to work to perform a special
task for the employer at an irregular time. The employee is within the scope of
his employment during the entire trip from his home to work and back to his
home. The exception is further applicable where the employer asks an employee
to perform a special errand after the employee leaves work but before going
home. In this case, as in the other examples, the employee is normally within the
scope of his employment while traveling to the special errand and while
traveling home from the special errand.” (Felix v. Asai (1987) 192 Cal.App.3d
926, 931–932 [237 Cal.Rptr. 718], internal citations omitted.)
• “Plaintiffs contend an employee’s attendance at an out-of-town business
conference authorized and paid for by the employer may be a special errand for
the benefit of the employer under the special errand doctrine. [Defendant] asserts
that the special errand doctrine does not apply to commercial travel. We
conclude that a special errand may include commercial travel such as the
business trip in this case.” (Jeewarat, supra, 177 Cal.App.4th at p. 436.)
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• “An employee who has gone upon a special errand does not cease to be acting
in the course of his employment upon his accomplishment of the task for which
he was sent. He is in the course of his employment during the entire trip.” (Trejo
v. Maciel (1966) 239 Cal.App.2d 487, 495 [48 Cal.Rptr. 765].)
• “Whether the transit is part of the employment relationship tends to be a more
subtle issue than whether the transit was between home and work. . . . ‘These
are the extraordinary transits that vary from the norm because the employer
requires a special, different transit, means of transit, or use of a car, for some
particular reason of his own. When the employer gains that kind of a particular
advantage, the job does more than call for routine transport to it; it plays a
different role, bestowing a special benefit upon the employer by reason of the
extraordinary circumstances. The employer’s special request, his imposition of an
unusual condition, removes the transit from the employee’s choice or
convenience and places it within the ambit of the employer’s choice or
convenience, restoring the employer-employee relationship.’ ” (Zhu v. Workers’
Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1038–1039 [219 Cal.Rptr.3d
630].)
• “[W]here an employee is required by the employment to work at both the
employer’s premises and at home, he is in the course of employment while
traveling between the employer’s premises and home.” (Zhu, supra, 12
Cal.App.5th at p. 1040.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 192–195
Finley, California Summary Judgment and Related Termination Motions § 1:1 et
seq. (The Rutter Group)
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3] (Matthew Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for
Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, §§ 248.11, 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.28 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:10 (Thomson Reuters)
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3727. Going-and-Coming Rule—Compensated Travel Time
Exception
If an employer has agreed to compensate an employee for the employee’s
commuting time, then the employee’s conduct is within the scope of
employment as long as the employee is going to the workplace or
returning home.
New November 2017; Revised May 2020
Directions for Use
This instruction sets forth the compensated travel time exception to the going-and-
coming rule. It may be given with CACI No. 3720, Scope of Employment. CACI
No. 3723, Substantial Deviation, may also be given if the employee did not go
directly from home to work or work to home.
Under the going-and-coming rule, commute time is generally not within the scope
of employment. (Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177
Cal.App.4th 427, 435 [98 Cal.Rptr.3d 837].) However, commute time is within the
scope of employment if the employer compensates the employee for the time spent
commuting. (Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1111
[214 Cal.Rptr.3d 449].)
Sources and Authority
• “[T]he employer may agree, either expressly or impliedly, that the relationship
shall continue during the period of ‘going and coming,’ in which case the
employee is entitled to the protection of the act during that period. Such an
agreement may be inferred from the fact that the employer furnishes
transportation to and from work as an incident of the employment. It seems
equally clear that such an agreement may also be inferred from the fact that the
employer compensates the employee for the time consumed in traveling to and
from work.” (Kobe v. Industrial Acci. Com. (1950) 35 Cal.2d 33, 35 [215 P.2d
736], internal citations omitted.)
• “There is a substantial benefit to an employer in one area to be permitted to
reach out to a labor market in another area or to enlarge the available labor
market by providing travel expenses and payment for travel time. It cannot be
denied that the employer’s reaching out to the distant or larger labor market
increases the risk of injury in transportation. In other words, the employer,
having found it desirable in the interests of his enterprise to pay for travel time
and for travel expenses and to go beyond the normal labor market or to have
located his enterprise at a place remote from the labor market, should be
required to pay for the risks inherent in his decision.” (Hinman v. Westinghouse
Electric Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].)
• “We are satisfied that, where, as here, the employer and employee have made the
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travel time part of the working day by their contract, the [employee] should be
treated as such during the travel time, and it follows that so long as the
employee is using the time for the designated purpose, to return home, the
doctrine of respondeat superior is applicable.” (Hinman, supra, 2 Cal.3d at pp.
962.)
• “[C]ourts have excepted from the going and coming rule those cases in which
the employer and employee have entered into an employment contract in which
the employer agrees to pay the employee for travel time and expenses associated
with commuting, thus making ‘the travel time part of the working day by their
contract.’ ” (Lynn, supra, 8 Cal.App.5th at p. 1111.)
• “To the same effect are the cases where the employer furnishes transportation to
and from work. ‘ “The essential prerequisite to compensation is that the danger
from which the injury results be one to which he is exposed as an employee in
his particular employment,” and ‘[t]his requirement is met when, as an employee
and solely by reason of his relationship as such to his employer, he enters a
vehicle regularly provided by his employer for the purpose of transporting him
to or from the place of employment.’ Here, again, it is the employer’s decision
to make the transit part of the employment relationship.” (Zhu v. Workers’ Comp.
Appeals Bd. (2017) 12 Cal.App.5th 1031, 1039 [219 Cal.Rptr.3d 630].)
• “[T]he mere payment of a travel allowance as shown in the present case does
not reflect a sufficient benefit to defendant so that it should bear responsibility
for plaintiff’s injuries.” (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028,
1042 [222 Cal.Rptr. 494].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 194
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3][c] (Matthew
Bender)
2 Wilcox, California Employment Law, Ch. 30, Employers’ Tort Liability to Third
Parties for Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.16[4] (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.28 et seq. (Matthew Bender)
3728–3799. Reserved for Future Use
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VF-3700. Negligence—Vicarious Liability
We answer the questions submitted to us as follows:
1. Was [name of agent] negligent?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of agent]’s negligence a substantial factor in causing
harm to [name of plaintiff]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of agent] [name of defendant]’s [agent/employee/[insert
other relationship]]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of agent] acting within the scope of [his/her/nonbinary
pronoun] [agency/employment/[insert other relationship]] when [he/
she/nonbinary pronoun] harmed [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
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[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3701, Tort Liability Asserted Against
Principal—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
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VICARIOUS RESPONSIBILITY VF-3700
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3701–VF-3799. Reserved for Future Use
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EQUITABLE INDEMNITY
3800. Comparative Fault Between and Among Tortfeasors
3801. Implied Contractual Indemnity
3802–3899. Reserved for Future Use
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3800. Comparative Fault Between and Among Tortfeasors
[Name of indemnitee] claims that [he/she/nonbinary pronoun] [is/was]
required to pay [describe liability, e.g., “a court judgment in favor of [name
of plaintiff]”] and that [name of indemnitor] must reimburse [name of
indemnitee] based on [name of indemnitor]’s share of responsibility. In
order for [name of indemnitee] to recover from [name of indemnitor],
[name of indemnitee] must prove both of the following:
1. That [name of indemnitor] [was negligent/[describe underlying
tort]]; and
2. That [name of indemnitor]’s [negligence/[describe tortious conduct]]
contributed as a substantial factor in causing [name of plaintiff]’s
harm.
[[Name of indemnitor] claims that [name of indemnitee] [and] [insert
identification of others] contributed as [a] substantial factor[s] in causing
[name of plaintiff]’s harm. To succeed, [name of indemnitor] must prove
both of the following:
1. That [name of indemnitee] [and] [insert identification of others]
[[was/were] negligent/[other basis of responsibility]]; and
2. That [name of indemnitee] [and] [insert identification of others]
contributed as [a] substantial factor[s] in causing [name of
plaintiff]’s harm.
You will be asked to determine the percentages of responsibility of [name
of indemnitor] [,/ and] [[name of indemnitee][, and] all other persons
responsible] for [name of plaintiff]’s harm.]
New September 2003; Revised May 2020
Directions for Use
Read the last bracketed portion when the indemnitor claims that the indemnitor was
not the sole cause of the indemnitee’s liability or loss.
This instruction is intended for use in cases where the plaintiff seeks equitable
indemnity from another responsible tortfeasor who was not a party to the original
action or proceeding from which the liability in question arose. For cases in which
the indemnitee seeks equitable indemnity against a co-defendant or cross-defendant
as part of the original tort action, see CACI No. 406, Apportionment of
Responsibility.
Sources and Authority
• “[T]he right to indemnity flows from payment of a joint legal obligation on
another’s behalf.” (AmeriGas Propane, LP v. Landstar Ranger, Inc. (2014) 230
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EQUITABLE INDEMNITY CACI No. 3800
Cal.App.4th 1153, 1167 [179 Cal.Rptr.3d 330].)
• “The elements of a cause of action for indemnity are (1) a showing of fault on
the part of the indemnitor and (2) resulting damages to the indemnitee for which
the indemnitor is . . . equitably responsible.” (Bailey v. Safeway, Inc. (2011) 199
Cal.App.4th 206, 217 [131 Cal.Rptr.3d 41].)
• “In order to attain . . . a system . . . in which liability for an indivisible injury
caused by concurrent tortfeasors will be borne by each individual tortfeasor ‘in
direct proportion to [his] respective fault,’ we conclude that the current equitable
indemnity rule should be modified to permit a concurrent tortfeasor to obtain
partial indemnity from other concurrent tortfeasors on a comparative fault basis.”
(American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 598 [146
Cal.Rptr. 182, 578 P.2d 899], internal citation omitted.)
• “Unlike subrogation, in which the claimant stands in the shoes of the injured
party, ‘The basis for the remedy of equitable indemnity is restitution. “[O]ne
person is unjustly enriched at the expense of another when the other discharges
liability that it should be his responsibility to pay.” [Citations.] [¶] California
common law recognizes a right of partial indemnity under which liability among
multiple tortfeasors may be apportioned according to the comparative negligence
of each.’ The test for indemnity is thus whether the indemnitor and indemnitee
jointly caused the plaintiff’s injury.” (AmeriGas Propane, L.P. v. Landstar
Ranger, Inc. (2010) 184 Cal.App.4th 981, 989 [109 Cal.Rptr.3d 686], internal
citation omitted.)
• “[C]omparative equitable indemnity includes the entire range of possible
apportionments, from no right to any indemnity to a right of complete indemnity.
Total indemnification is just one end of the spectrum of comparative equitable
indemnification.” (Far West Financial Corp. v. D & S Co., Inc. (1988) 46 Cal.3d
796, 808 [251 Cal.Rptr. 202, 760 P.2d 399], internal quotation marks and citation
omitted.)
• “[W]e conclude that a cause of action for equitable indemnity is a legal action
seeking legal relief. As such, the [defendant] was entitled to a jury trial.” (Martin
v. County of Los Angeles (1996) 51 Cal.App.4th 688, 698 [59 Cal.Rptr.2d 303].)
• “[W]e hold that . . . the comparative indemnity doctrine may be utilized to
allocate liability between a negligent and a strictly liable defendant.” (Safeway
Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 332 [146 Cal.Rptr. 550, 579 P.2d
441].)
• “[Indemnitor]’s liability was not based on its independent acts or omissions, but
was based solely on its role as retailer of [manufacturer]’s defectively designed
product. As a matter of fundamental fairness, a manufacturer . . . cannot seek
equitable indemnification from a retailer found not to have been negligent or
independently at fault, but found to be liable solely under the strict liability
theory of design defect. Under these limited circumstances the retailer is not ‘at
fault’ within the meaning of a cause of action for equitable indemnification.”
(Bailey, supra, 199 Cal.App.4th at p. 215.)
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• For purposes of equitable indemnity, “it matters not whether the tortfeasors acted
in concert to create a single injury, or successively, in creating distinct and
divisible injury.” (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 1203 [213
Cal.Rptr. 781].)
• “[W]e conclude comparative fault principles should be applied to intentional
torts, at least to the extent that comparative equitable indemnification can be
applied between concurrent intentional tortfeasors.” (Baird v. Jones (1993) 21
Cal.App.4th 684, 690 [27 Cal.Rptr.2d 232].)
• Statutes may limit one’s right to recover comparative indemnity. (See, e.g., E.W.
Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1259 [258 Cal.Rptr.
783] [Lab. Code, § 4558(d) provides that there is no right of action for
comparative indemnity against an employer for injuries resulting from the
removal of an operation guard from a punch press].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 222, 225, 226, 230
California Tort Guide (Cont.Ed.Bar 3d ed.) General Principles, §§ 1.52–1.59
5 Levy et al., California Torts, Ch. 74, Comparative Negligence, §§ 74.01–74.13
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.61 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.60
et seq. (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.26 et seq. (Matthew Bender)
California Civil Practice: Torts §§ 4:14–4:18 (Thomson Reuters)
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3801. Implied Contractual Indemnity
[Name of indemnitee] claims that [he/she/nonbinary pronoun] [is/was/may
be] required to pay [describe liability, e.g., “a court judgment in favor of
plaintiff John Jones”] because [name of indemnitor] [failed to use
reasonable care in performing work under an agreement with [name of
indemnitee]/[specify other basis of responsibility]]. In order for [name of
indemnitee] to recover from [name of indemnitor], [name of indemnitee]
must prove both of the following:
1. That [name of indemnitor] [failed to use reasonable care in
[performing the work/[describe work or services, e.g., testing the
soil]] under an agreement with [name of indemnitee]/[specify other
basis of responsibility]]; and
2. That [name of indemnitor]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[[Name of indemnitor] claims that [[name of indemnitee] [and] [insert
identification of others]] contributed as [a] substantial factor[s] in causing
[name of plaintiff]’s harm. To succeed, [name of indemnitor] must prove
both of the following:
1. That [[name of indemnitee] [and] [insert identification of others]]
[was/were] [negligent/[specify other basis of responsibility]]; and
2. That [[name of indemnitee] [and] [insert identification of others]]
contributed as [a] substantial factor[s] in causing [name of
plaintiff]’s harm.
You will be asked to determine the percentages of responsibility of [name
of indemnitor][,/ and] [[name of indemnitee][, and] all other persons
responsible] for [name of plaintiff]’s harm.]
New September 2003; Revised December 2007, May 2020, November 2020
Directions for Use
The party identifications in this instruction assume a cross-complaint between
indemnitor and indemnitee defendants. In a direct action by the indemnitee against
the indemnitor, “name of plaintiff” will refer to the person to whom the indemnitee
has incurred liability.
Implied contractual indemnity may arise for reasons other than the indemnitor’s
negligent performance under the contract. If the basis of the claim is other than
negligence, specify the conduct involved. (See Garlock Sealing Technologies, LLC v.
NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 974 [56 Cal.Rptr.3d
177] [breach of warranty].)
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CACI No. 3801 EQUITABLE INDEMNITY
Read the last bracketed portion if the indemnitor claims that the indemnitor was not
the sole cause of the indemnitee’s liability or loss. Select options depending on
whether the indemnitor alleges contributory conduct of the indemnitee, of others, or
of both. Element 1 will have to be modified if there are different contributing acts
alleged against the indemnitee and others; for example, if the indemnitee is alleged
to have been negligent and another party is alleged to be strictly liable.
A special finding that an agreement existed may create a need for instructions, but it
is a question of law whether an agreement implies a duty to indemnify. This
instruction should be given only in cases in which the court has determined that the
alleged indemnitor and the indemnitee have “a joint legal obligation to the injured
party.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1160 [90
Cal.Rptr.3d 732, 202 P.3d 1115].)
Sources and Authority
• “In general, indemnity refers to ‘the obligation resting on one party to make
good a loss or damage another party has incurred.’ Historically, the obligation of
indemnity took three forms: (1) indemnity expressly provided for by contract
(express indemnity); (2) indemnity implied from a contract not specifically
mentioning indemnity (implied contractual indemnity); and (3) indemnity arising
from the equities of particular circumstances (traditional equitable indemnity). [¶]
Although the foregoing categories of indemnity were once regarded as distinct,
we now recognize there are only two basic types of indemnity: express
indemnity and equitable indemnity. Though not extinguished, implied contractual
indemnity is now viewed simply as ‘a form of equitable indemnity.’ ” (Prince,
supra, 45 Cal.4th at p. 1157, internal citations omitted.)
• “The right to implied contractual indemnity is predicated upon the indemnitor’s
breach of contract, ‘the rationale . . . being that a contract under which the
indemnitor undertook to do work or perform services necessarily implied an
obligation to do the work involved in a proper manner and to discharge
foreseeable damages resulting from improper performance absent any
participation by the indemnitee in the wrongful act precluding recovery.’ . . .
‘An action for implied contractual indemnity is not a claim for contribution from
a joint tortfeasor; it is not founded upon a tort or upon any duty which the
indemnitor owes to the injured third party. It is grounded upon the indemnitor’s
breach of duty owing to the indemnitee to properly perform its contractual
duties.’ ” (West v. Superior Court (1994) 27 Cal.App.4th 1625, 1633 [34
Cal.Rptr.2d 409], internal citations omitted, original italics.)
• “[A]n implied contractual indemnity claim, like a traditional equitable indemnity
claim, is subject to the American Motorcycle rule that a party’s liability for
equitable indemnity is based on its proportional share of responsibility for the
damages to the injured party.” (Prince, supra, 45 Cal.4th at p. 1165, original
italics.)
• “[O]ur recognition that ‘a claim for implied contractual indemnity is a form of
equitable indemnity subject to the rules governing equitable indemnity claims’
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corrects any misimpression that joint liability is not a component.” (Prince,
supra, 45 Cal.4th at p. 1166, internal citation omitted.)
• “[U]nder [Code of Civil Procedure] section 877.6, subsection (c), . . . an
[implied contractual] indemnity claim, like other equitable indemnity claims,
may not be pursued against a party who has entered into a good faith
settlement.” (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012,
1031 [269 Cal.Rptr. 720, 791 P.2d 290].)
• “We conclude the trial court erred in denying [the indemnitee’s] implied
contractual indemnity based on [indemnitee’s] failure to prove [the indemnitor’s]
breach of warranty was the product of [indemnitor’s] failure to use reasonable
care in performing its contractual duties. [Indemnitee] does not need to prove a
negligent breach of contract to be entitled to implied contractual indemnity.”
(Garlock Sealing Technologies, supra, 148 Cal.App.4th at p. 974, internal
citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 224, 229
Haning et al., California Practice Guide: Personal Injury, Ch. 4-D, Techniques Where
Settlement Not Forthcoming, ¶ 4:784 (The Rutter Group)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation,
§ 74.03[6] (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Contribution and Indemnity,
§ 300.61[5] (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution,
§ 115.91[3][a] (Matthew Bender)
California Civil Practice: Torts § 4:14 (Thomson Reuters)
3802–3899. Reserved for Future Use
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DAMAGES
3900. Introduction to Tort Damages—Liability Contested
3901. Introduction to Tort Damages—Liability Established
3902. Economic and Noneconomic Damages
3903. Items of Economic Damage
3903A. Medical Expenses—Past and Future (Economic Damage)
3903B. Medical Monitoring—Toxic Exposure (Economic Damage)
3903C. Past and Future Lost Earnings (Economic Damage)
3903D. Lost Earning Capacity (Economic Damage)
3903E. Loss of Ability to Provide Household Services (Economic Damage)
3903F. Damage to Real Property (Economic Damage)
3903G. Loss of Use of Real Property (Economic Damage)
3903H. Damage to Annual Crop (Economic Damage)
3903I. Damage to Perennial Crop (Economic Damage)
3903J. Damage to Personal Property (Economic Damage)
3903K. Loss or Destruction of Personal Property (Economic Damage)
3903L. Damage to Personal Property Having Special Value (Civ. Code, § 3355)
(Economic Damage)
3903M. Loss of Use of Personal Property (Economic Damage)
3903N. Lost Profits (Economic Damage)
3903O. Injury to Pet—Costs of Treatment (Economic Damage)
3903P. Damages From Employer for Wrongful Discharge (Economic Damage)
3903Q. Survival Damages (Economic Damage) (Code Civ. Proc., § 377.34)
3904A. Present Cash Value
3904B. Use of Present-Value Tables
3905. Items of Noneconomic Damage
3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic
Damage)
3906. Lost Earnings and Lost Earning Capacity—Jurors Not to Reduce Damages
on Basis of Race, Ethnicity, or Gender (Economic Damage)
3907–3919. Reserved for Future Use
3920. Loss of Consortium (Noneconomic Damage)
3921. Wrongful Death (Death of an Adult)
3922. Wrongful Death (Parents’ Recovery for Death of a Minor Child)
3923. Public Entities—Collateral Source Payments (Gov. Code, § 985)
3924. No Punitive Damages
3925. Arguments of Counsel Not Evidence of Damages
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3926. Settlement Deduction
3927. Aggravation of Preexisting Condition or Disability
3928. Unusually Susceptible Plaintiff
3929. Subsequent Medical Treatment or Aid
3930. Mitigation of Damages (Personal Injury)
3931. Mitigation of Damages (Property Damage)
3932. Life Expectancy
3933. Damages From Multiple Defendants
3934. Damages on Multiple Legal Theories
3935. Prejudgment Interest (Civ. Code, § 3288)
3936–3939. Reserved for Future Use
3940. Punitive Damages—Individual Defendant—Trial Not Bifurcated
3941. Punitive Damages—Individual Defendant—Bifurcated Trial (First Phase)
3942. Punitive Damages—Individual Defendant—Bifurcated Trial (Second Phase)
3943. Punitive Damages Against Employer or Principal for Conduct of a Specific
Agent or Employee—Trial Not Bifurcated
3944. Punitive Damages Against Employer or Principal for Conduct of a Specific
Agent or Employee—Bifurcated Trial (First Phase)
3945. Punitive Damages—Entity Defendant—Trial Not Bifurcated
3946. Punitive Damages—Entity Defendant—Bifurcated Trial (First Phase)
3947. Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated
3948. Punitive Damages—Individual and Corporate Defendants (Corporate
Liability Based on Acts of Named Individual)—Bifurcated Trial (First
Phase)
3949. Punitive Damages—Individual and Corporate Defendants (Corporate
Liability Based on Acts of Named Individual)—Bifurcated Trial (Second
Phase)
3950–3959. Reserved for Future Use
3960. Comparative Fault of Plaintiff—General Verdict
3961. Duty to Mitigate Damages for Past Lost Earnings
3962. Duty to Mitigate Damages for Future Lost Earnings
3963. Affirmative Defense—Employee’s Duty to Mitigate Damages
3964. Jurors Not to Consider Attorney Fees and Court Costs
3965. No Deduction for Workers’ Compensation Benefits Paid
3966–3999. Reserved for Future Use
VF-3900. Punitive Damages
VF-3901. Punitive Damages Against Employer or Principal for Conduct of a
Specific Agent or Employee
VF-3902. Punitive Damages—Entity Defendant
VF-3903. Punitive Damages—Entity Defendant—Ratification
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VF-3904. Punitive Damages—Entity Defendant—Authorization
VF-3905. Damages for Wrongful Death (Death of an Adult)
VF-3906. Damages for Wrongful Death (Parents’ Recovery for Death of a Minor
Child)
VF-3907. Damages for Loss of Consortium (Noneconomic Damage)
VF-3908–VF-3919. Reserved for Future Use
VF-3920. Damages on Multiple Legal Theories
VF-3921–VF-3999. Reserved for Future Use
Life Expectancy Table—Male
Life Expectancy Table—Female
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3900. Introduction to Tort Damages—Liability Contested
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
The amount of damages must include an award for each item of harm
that was caused by [name of defendant]’s wrongful conduct, even if the
particular harm could not have been anticipated.
[Name of plaintiff] does not have to prove the exact amount of damages
that will provide reasonable compensation for the harm. However, you
must not speculate or guess in awarding damages.
[The following are the specific items of damages claimed by [name of
plaintiff]:]
[Insert applicable instructions on items of damage.]
New September 2003
Directions for Use
Read last bracketed sentence and insert instructions on items of damages here only
if CACI No. 3902, Economic and Noneconomic Damages, is not being read. If
CACI No. 3902 is not used, this instruction should be followed by applicable
instructions (see CACI Nos. 3903A through 3903N, and 3905A) concerning the
items of damage claimed by the plaintiff. These instructions should be inserted into
this instruction as sequentially numbered items.
Sources and Authority
• Measure of Tort Damages. Civil Code section 3333.
• Recovery of Damages Generally. Civil Code section 3281.
• Recovery of Future Damages. Civil Code section 3283.
• Damages Must Be Reasonable. Civil Code section 3359.
• “ ‘Damages’ are monetary compensation awarded to parties who suffer detriment
for the unlawful act or omission of another; they are assessed by a court against
wrongdoers for the commission of a legal wrong of a private nature.” (Meister v.
Mensinger (2014) 230 Cal.App.4th 381, 396 [178 Cal.Rptr.3d 604].)
• Under Civil Code section 3333 “[t]ort damages are awarded to compensate a
plaintiff for all of the damages suffered as a legal result of the defendant’s
wrongful conduct.” (North American Chemical Co. v. Superior Court (1997) 59
Cal.App.4th 764, 786 [69 Cal.Rptr.2d 466], italics omitted.)
• “Whatever its measure in a given case, it is fundamental that ‘damages which
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are speculative, remote, imaginary, contingent, or merely possible cannot serve
as a legal basis for recovery.’ However, recovery is allowed if claimed benefits
are reasonably certain to have been realized but for the wrongful act of the
opposing party.” (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989 [105
Cal.Rptr.2d 88], internal citations omitted.)
• “In general, one who has been tortiously injured is entitled to be compensated
for the harm and the injured party must establish ‘by proof the extent of the
harm and the amount of money representing adequate compensation with as
much certainty as the nature of the tort and the circumstances permit.’ However,
‘[t]here is no general requirement that the injured person should prove with like
definiteness the extent of the harm that he has suffered as a result of the
tortfeasor’s conduct. It is desirable that responsibility for harm should not be
imposed until it has been proved with reasonable certainty that the harm resulted
from the wrongful conduct of the person charged. It is desirable, also, that there
be definiteness of proof of the amount of damage as far as is reasonably
possible. It is even more desirable, however, that an injured person not be
deprived of substantial compensation merely because he cannot prove with
complete certainty the extent of harm he has suffered.’ ” (Clemente v. State of
California (1985) 40 Cal.3d 202, 219 [219 Cal.Rptr. 445, 707 P.2d 818], internal
citations omitted.)
• “ ‘Where the fact of damages is certain, the amount of damages need not be
calculated with absolute certainty.’ ‘The law requires only that some reasonable
basis of computation of damages be used, and the damages may be computed
even if the result reached is an approximation. . . . .’ ” (Meister, supra, 230
Cal.App.4th at pp. 396–397, original italics, internal citation omitted.)
• “If plaintiff’s inability to prove his damages with certainty is due to defendant’s
actions, the law does not generally require such proof.” (Clemente, supra, 40
Cal.3d at p. 219, internal citations omitted.)
• “While a defendant is liable for all the damage that his tortuous act proximately
causes to the plaintiff, regardless of whether or not it could have been
anticipated, nevertheless a proximate causal connection must still exist between
the damage sustained by the plaintiff and the defendant’s wrongful act or
omission, and the detriment inflicted on the plaintiff must still be the natural and
probable result of the defendant’s conduct.” (Chaparkas v. Webb (1960) 178
Cal.App.2d 257, 260 [2 Cal.Rptr. 879], internal citations omitted.)
• “The issue here is whether [defendant]—separate from other legal and practical
reasons it had to prevent injury of any kind to the public—had a tort duty to
guard against negligently causing what we and others have called ‘purely
economic loss[es].’ We use that term as a shorthand for ‘pecuniary or
commercial loss that does not arise from actionable physical, emotional or
reputational injury to persons or physical injury to property.’ And although
[defendant] of course had a tort duty to guard against the latter kinds of injury,
we conclude it had no tort duty to guard against purely economic losses.”
(Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 398 [247
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CACI No. 3900 DAMAGES
Cal.Rptr.3d 632, 441 P.3d 881], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1715–1719,
1723–1726
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.2–1.6
4 Levy et al., California Torts, Ch. 50, Damages, § 50.02 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.41
(Matthew Bender)
California Civil Practice: Torts § 5:1 (Thomson Reuters)
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3901. Introduction to Tort Damages—Liability Established
If you decide that [name of plaintiff] was harmed and that [name of
defendant]’s [insert description of cause of action, e.g., “negligence”] was a
substantial factor in causing the harm, you also must decide how much
money will reasonably compensate [name of plaintiff] for the harm. This
compensation is called “damages.”
The amount of damages must include an award for each item of harm
that was caused by [name of defendant]’s wrongful conduct, even if the
particular harm could not have been anticipated.
[Name of plaintiff] does not have to prove the exact amount of damages
that will provide reasonable compensation for the harm. However, you
must not speculate or guess in awarding damages.
[The following are the specific items of damages claimed by [name of
plaintiff]:]
[Insert applicable instructions on items of damage.]
New September 2003; Revised October 2004, June 2005
Directions for Use
This instruction is intended for cases in which the defendant “admits” liability, but
contests causation and damages. See CACI No. 424, Negligence Not
Contested—Essential Factual Elements.
Read last bracketed sentence and insert instructions on items of damage here only if
CACI No. 3902, Economic and Noneconomic Damages, is not being read. If CACI
No. 3902 is not used, this instruction should be followed by applicable instructions
(see CACI Nos. 3903A through 3903N, and CACI No. 3905A) concerning the
items of damage claimed by the plaintiff. These instructions should be inserted into
this instruction as sequentially numbered items.
Read CACI No. 430, Causation: Substantial Factor, as the definition of “substantial
factor.”
Sources and Authority
See the Sources and Authority to CACI No. 3900, Introduction to Tort
Damages—Liability Contested.
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1715–1719,
1723–1726
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.2–1.6
4 Levy et al., California Torts, Ch. 50, Damages, § 50.02 (Matthew Bender)
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15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.41
(Matthew Bender)
California Civil Practice: Torts § 5:1 (Thomson Reuters)
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3902. Economic and Noneconomic Damages
The damages claimed by [name of plaintiff] for the harm caused by [name
of defendant] fall into two categories called economic damages and
noneconomic damages. You will be asked on the verdict form to state the
two categories of damages separately.
New September 2003
Directions for Use
This instruction may not be necessary in every case.
Sources and Authority
• Proposition 51. Civil Code section 1431.2.
• MICRA Limitation on Noneconomic Damages From Health Care Provider. Civil
Code section 3333.2.
• The Supreme Court has noted that section 1431.2 “carefully” defines the
“important distinction” between economic and noneconomic damages. (DaFonte
v. Up-Right, Inc. (1992) 2 Cal.4th 593, 600 [7 Cal.Rptr.2d 238, 828 P.2d 140].)
The court stated: “Proposition 51 . . . retains the joint liability of all tortfeasors,
regardless of their respective shares of fault, with respect to all objectively
provable expenses and monetary losses. On the other hand, the more intangible
and subjective categories of damages were limited by Proposition 51 to a rule of
strict proportionate liability. With respect to these noneconomic damages, the
plaintiff alone now assumes the risk that a proportionate contribution cannot be
obtained from each person responsible for the injury.” (Ibid., internal citation
omitted.)
• “Proposition 51 . . . allows an injured plaintiff to recover the full amount of
economic damages suffered, regardless of which tortfeaser [sic] or tortfeasors are
named as defendants. The tortfeasors are left to sort out payment in proportion
to fault amongst themselves, and they must bear the risk of nonrecovery from
impecunious tortfeasors. As to noneconomic damages, however, the plaintiff
must sue all the tortfeasors to enable a full recovery. Failure to name a defendant
will preclude recovery of that defendant’s proportional share of damages, and the
plaintiff will bear the risk of nonrecovery from an impecunious tortfeasor.”
(Aetna Health Plans of California, Inc. v. Yucaipa-Calimesa Joint Unified School
Dist. (1999) 72 Cal.App.4th 1175, 1190 [85 Cal.Rptr.2d 672].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 159, 169, 170
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.5
4 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.04
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(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.20 et seq.
(Matthew Bender)
California Civil Practice: Torts § 5:4 (Thomson Reuters)
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3903. Items of Economic Damage
The following are the specific items of economic damages claimed by
[name of plaintiff]:
[Insert applicable instructions on items of economic damage.]
New September 2003
Directions for Use
This instruction may not be necessary in every case. For example, if the plaintiff is
not claiming any noneconomic damages, there would be no need to define the
claimed damages as “economic.” If this instruction is used, it should be followed by
applicable instructions (see CACI Nos. 3903A through 3903N) concerning the items
of economic damage claimed by the plaintiff. These instructions should be inserted
into this instruction as sequentially numbered items.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 159, 169, 170
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.5
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts § 5:4 (Thomson Reuters)
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3903A. Medical Expenses—Past and Future (Economic Damage)
[Insert number, e.g., “1.”] [Past] [and] [future] medical expenses.
[To recover damages for past medical expenses, [name of plaintiff] must
prove the reasonable cost of reasonably necessary medical care that [he/
she/nonbinary pronoun] has received.]
[To recover damages for future medical expenses, [name of plaintiff] must
prove the reasonable cost of reasonably necessary medical care that [he/
she/nonbinary pronoun] is reasonably certain to need in the future.]
New September 2003
Sources and Authority
• “ ‘In tort actions, medical expenses fall generally into the category of economic
damages, representing actual pecuniary loss caused by the defendant’s wrong.’
‘A person who undergoes necessary medical treatment for tortiously caused
injuries suffers an economic loss by taking on liability for the costs of treatment.
Hence, any reasonable charges for treatment the injured person has paid or,
having incurred, still owes the medical provider are recoverable as economic
damages.’ ” (Williams v. The Pep Boys Manny Moe & Jack of California (2018)
27 Cal.App.5th 225, 237 [238 Cal.Rptr.3d 809].)
• “[A] person injured by another’s tortious conduct is entitled to recover the
reasonable value of medical care and services reasonably required and
attributable to the tort.” (Hanif v. Housing Authority of Yolo County (1988) 200
Cal.App.3d 635, 640 [246 Cal.Rptr. 192], internal citations omitted; see also
Helfend v. Southern Cal Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 [84 Cal.Rptr.
173, 465 P.2d 61 [collateral source rule].)
• “The jury in this case was properly instructed with CACI No. 3903A, which
directs the jury to determine ‘the reasonable cost of reasonably necessary
medical care that [plaintiff] is reasonably certain to need in the future.’ ”
(Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1050 [208 Cal.Rptr.3d 363]; see
also Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, 183 [217
Cal.Rptr.3d 519] [CACI 3903A is an accurate statement of the law].)
• “The jury was properly instructed in this case to determine ‘the reasonable cost
of reasonably necessary medical care that [plaintiff] has received’ and ‘the
reasonable cost of reasonably necessary medical care that [plaintiff] is reasonably
certain to need in the future.’ But as a consequence of the discrepancy in recent
decades between the amount patients are typically billed by health care providers
and the lower amounts usually paid in satisfaction of the charges (whether by a
health insurer or otherwise), controversy has arisen as to how to measure the
reasonable costs of medical care in a variety of factual scenarios.” (Bermudez v.
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Ciolek (2015) 237 Cal.App.4th 1311, 1328 [188 Cal.Rptr.3d 820].)
• “[A] plaintiff may recover as economic damages no more than the reasonable
value of the medical services received and is not entitled to recover the
reasonable value if his or her actual loss was less. California decisions have
focused on ‘reasonable value’ in the context of limiting recovery to reasonable
expenditures, not expanding recovery beyond the plaintiff’s actual loss or
liability. To be recoverable, a medical expense must be both incurred and
reasonable.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th
541, 555 [129 Cal.Rptr.3d 325, 257 P.3d 1130], original italics, internal citations
omitted.)
• “[A]n injured plaintiff whose medical expenses are paid through private
insurance may recover as economic damages no more than the amounts paid by
the plaintiff or his or her insurer for the medical services received or still owing
at the time of trial. In so holding, we in no way abrogate or modify the
collateral source rule as it has been recognized in California; we merely
conclude the negotiated rate differential—the discount medical providers offer
the insurer—is not a benefit provided to the plaintiff in compensation for his or
her injuries and therefore does not come within the rule.” (Howell, supra, 52
Cal.4th at p. 566.)
• “[W]hen a medical care provider has, by agreement with the plaintiff’s private
health insurer, accepted as full payment for the plaintiff’s care an amount less
than the provider’s full bill, evidence of that amount is relevant to prove the
plaintiff’s damages for past medical expenses and, assuming it satisfies other
rules of evidence, is admissible at trial. Evidence that such payments were made
in whole or in part by an insurer remains, however, generally inadmissible under
the evidentiary aspect of the collateral source rule. Where the provider has, by
prior agreement, accepted less than a billed amount as full payment, evidence of
the full billed amount is not itself relevant on the issue of past medical
expenses.” (Howell, supra, 52 Cal.4th at p. 567, internal citation omitted.)
• “Howell offered no bright-line rule on how to determine ‘reasonable value’ when
uninsured plaintiffs have incurred (but not paid) medical bills. [Defendant] is
correct that the concept of market or exchange value was endorsed by Howell as
the proper way to think about the ‘reasonable value’ of medical services. But she
is incorrect to the extent she suggests (1) [Plaintiff] is necessarily in the same
market as insured health care recipients or wealthy health care recipients who
can pay cash; or (2) Howell prescribes a particular method for determining the
‘reasonable value’ of medical services.” (Bermudez, supra, 237 Cal.App.4th at p.
1330.)
• “In sum, the measure of medical damages is the lesser of (1) the amount paid or
incurred, and (2) the reasonable value of the medical services provided. In
practical terms, the measure of damages in insured plaintiff cases will likely be
the amount paid to settle the claim in full. It is theoretically possible to prove
the reasonable value of services is lower than the rate negotiated by an insurer.
But nothing in the available case law suggests this will be a particularly fruitful
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avenue for tort defendants. Conversely, the measure of damages for uninsured
plaintiffs who have not paid their medical bills will usually turn on a wide-
ranging inquiry into the reasonable value of medical services provided, because
uninsured plaintiffs will typically incur standard, nondiscounted charges that will
be challenged as unreasonable by defendants.” (Bermudez, supra, 237
Cal.App.4th at pp. 1330–1331.)
• “Here, we are confronted with an insured plaintiff who has chosen to treat with
doctors and medical facility providers outside his insurance plan. We hold that
such a plaintiff shall be considered uninsured, as opposed to insured, for the
purpose of determining economic damages.” (Pebley v. Santa Clara Organics,
LLC (2018) 22 Cal.App.5th 1266, 1269 [232 Cal.Rptr.3d 404].)
• “[T]he inquiry into reasonable value for the medical services provided to an
uninsured plaintiff is not necessarily limited to the billed amounts where a
defendant seeks to introduce evidence that a lesser payment has been made to
the provider by a factor . . . . In such cases, the inquiry requires some additional
evidence showing a nexus between the amount paid by the factor and the
reasonable value of the medical services.” (Uspenskaya v. Meline (2015) 241
Cal.App.4th 996, 1007 [194 Cal.Rptr.3d 364].)
• “Where a medical provider has (1) rendered medical services to a plaintiff, (2)
issued a bill for those services, and (3) subsequently written off a portion of the
bill gratuitously, the amount written off constitutes a benefit that may be
recovered by the plaintiff under the collateral source rule.” (Sanchez v. Strickland
(2011) 200 Cal.App.4th 758, 769 [133 Cal.Rptr.3d 342].)
• “[T]he collateral source rule is not violated when a defendant is allowed to offer
evidence of the market value of future medical benefits.” (Cuevas, supra, 11
Cal.App.5th at p. 180.)
• “It is established that ‘[t]he reasonable value of nursing services required by the
defendant’s tortious conduct may be recovered from the defendant even though
the services were rendered by members of the injured person’s family and
without an agreement or expectation of payment. Where services in the way of
attendance and nursing are rendered by a member of the plaintiff’s family, the
amount for which the defendant is liable is the amount for which reasonably
competent nursing and attendance by others could have been obtained. The fact
that the injured party had a legal right to the nursing services (as in the case of a
spouse) does not, as a general rule, prevent recovery of their value . . . .’ ”
(Hanif, supra, 200 Cal.App.3d at pp. 644–645, internal citations omitted.)
• “Two points about the sufficiency of evidence to support a judgment can fairly
be taken from Howell. First, the amount paid to settle in full an insured
plaintiff’s medical bills is likely substantial evidence on its own of the
reasonable value of the services provided. Second, consistent with pre-Howell
law, initial medical bills are generally insufficient on their own as a basis for
determining the reasonable value of medical services. Ensuing cases have held
that a plaintiff who relies solely on evidence of unpaid medical charges will not
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DAMAGES CACI No. 3903A
meet his burden of proving the reasonable value of medical damages with
substantial evidence.” (Bermudez, supra, 237 Cal.App.4th at p. 1335, internal
citations omitted.)
• Nor is it necessary that the amount of the award equal the alleged medical
expenses for it has long been the rule that the costs alone of medical treatment
and hospitalization do not govern the recovery of such expenses. It must be
shown additionally that the services were attributable to the accident, that they
were necessary, and that the charges for such services were reasonable.”
(Dimmick v. Alvarez (1961) 196 Cal.App.2d 211, 216 [16 Cal.Rptr. 308].)
• “The intervention of a third party in purchasing a medical lien does not prevent
a plaintiff from recovering the amounts billed by the medical provider for care
and treatment, as long as the plaintiff legitimately incurs those expenses and
remains liable for their payment. Nor does the rule [that a plaintiff in a tort
action cannot recover more than the amount of medical expenses he or she paid
or incurred, even if the reasonable value of those services might be a greater
sum] forbid the jury from considering the amounts billed by the provider as
evidence of the reasonable value of the services.” (Katiuzhinsky v. Perry (2007)
152 Cal.App.4th 1288, 1291 [62 Cal.Rptr.3d 309]; see also Moore v. Mercer
(2016) 4 Cal.App.5th 424, 436 [209 Cal.Rptr.3d 101] [“Nothing in Howell
suggests a need to revisit the issues we addressed in Katiuzhinsky”].)
• “The fact that a hospital or doctor, for administrative or economic convenience,
decides to sell a debt to a third party at a discount does not reduce the value of
the services provided in the first place.” (Uspenskaya, supra, 241 Cal.App.4th at
p. 1003.)
• “Because the provider may no longer assert a lien for the full cost of its
services, the Medicaid beneficiary may only recover the amount payable under
Medicaid as his or her medical expenses in an action against a third party
tortfeasor.” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 827 [135
Cal.Rptr.2d 1, 69 P.3d 927], internal citation omitted.)
• “ ‘To entitle a plaintiff to recover present damages for apprehended future
consequences, there must be evidence to show such a degree of probability of
their occurring as amounts to a reasonable certainty that they will result from the
original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d
576, 588 [81 P.2d 894], internal citation omitted.)
• “It is for the jury to determine the probabilities as to whether future detriment is
reasonably certain to occur in any particular case. [Citation.] It is ‘not required’
for a doctor to ‘testify that he [is] reasonably certain that the plaintiff would be
disabled in the future. All that is required to establish future disability is that
from all the evidence, including the expert testimony, if there be any, it
satisfactorily appears that such disability will occur with reasonable certainty.
[Citations.]’ [Citation.] The fact that the amount of future damages may be
difficult to measure or subject to various possible contingencies does not bar
recovery.” (J.P., supra, 232 Cal.App.4th at pp. 341–342.)
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• “[W]hile an injured plaintiff is entitled to recover the reasonable value of
medical services that are reasonably certain to be necessary in the future,
evidence of the full amount billed for past medical services cannot support an
expert opinion on the reasonable value of future medical services. It does not
appear, however, that [expert] used the full amount billed for past medical
services in making the calculations for her life care plan. We observe ‘the
“requirement of certainty . . . cannot be strictly applied where prospective
damages are sought, because probabilities are really the basis for the award.” ’
At the time of trial, the precise medical costs a plaintiff will incur in the future
are not known. Nor is it known how a plaintiff will necessarily pay for such
expenses. It is unknown, for example, what, if any, insurance a plaintiff will
have at any given time or what rate an insurer will have negotiated with any
given medical provider for a particular service at the time and location the
plaintiff will require the medical care. The fact finder is entrusted with the tasks
of evaluating the probabilities based on the evidence presented and arriving at a
reasonable result.” (Cuevas, supra, 11 Cal.App.5th at p. 182, internal citations
omitted.)
• “[I]t seems particularly appropriate for the trial court to perform its traditional
gatekeeper role as to the admissibility of evidence and, pursuant to Evidence
Code section 352, to determine whether evidence that is minimally probative
should be admitted or whether it will require an undue consumption of time to
try the collateral issues that evidence of what a third party paid for an account
receivable and lien will necessarily raise.” (Moore, supra, 4 Cal.App.5th at p.
443.)
• “[E]vidence which might be admissible in one case might not be admissible in
another. ‘[T]he facts and circumstances of the particular case dictate what
evidence is relevant to show the reasonable market value of the services at
issue . . . .’ ” (Moore, supra, 4 Cal.App.5th at p. 442.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1846 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 3-A, Damages:
Introduction, ¶¶ 3:1–3:19.4 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:351 et seq. (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.19–1.31
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.01, 52.03 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.45
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.192 (Matthew
Bender)
California Civil Practice: Torts § 5:12 (Thomson Reuters)
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3903B. Medical Monitoring—Toxic Exposure (Economic Damage)
[Insert number, e.g., “2.”] The cost of future medical monitoring. To
recover damages for this item, [name of plaintiff] must prove both of the
following:
1. That as a result of the toxic exposure, the need for future
monitoring is reasonably certain; and
2. That the monitoring is reasonable.
In deciding these issues, you should consider the following:
(a) The significance and extent of [name of plaintiff]’s exposure to the
chemical(s);
(b) The toxicity of the chemical(s);
(c) The relative increase in [name of plaintiff]’s chance of getting the
disease as a result of the exposure, when compared to:
(i) [his/her/nonbinary pronoun] chances of developing the disease
had [he/she/nonbinary pronoun] not been exposed, and
(ii) the chances that members of the public at large will develop
the disease;
(d) The seriousness of the disease that may result from the exposure;
[and]
(e) The medical benefit of early detection and diagnosis; [and]
(f) [Insert other relevant factor(s).]
[[Name of defendant] is not required to pay for medical monitoring that is
required for reasons other than [name of plaintiff]’s exposure to toxic
chemicals.]
[[Name of defendant] is only required to pay for additional or different
monitoring that is required because of the toxic exposure.]
New September 2003
Sources and Authority
• “In the context of a toxic exposure action, a claim for medical monitoring seeks
to recover the cost of future periodic medical examinations intended to facilitate
early detection and treatment of disease caused by a plaintiff’s exposure to toxic
substances.” (Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965,
1004–1005 [25 Cal.Rptr.2d 550, 863 P.2d 795], internal citation omitted.)
• “[W]e hold that the cost of medical monitoring is a compensable item of
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damages where the proofs demonstrate, through reliable medical expert
testimony, that the need for future monitoring is a reasonably certain
consequence of a plaintiff’s toxic exposure and that the recommended monitoring
is reasonable. In determining the reasonableness and necessity of monitoring, the
following factors are relevant: (1) the significance and extent of the plaintiff’s
exposure to chemicals; (2) the toxicity of the chemicals; (3) the relative increase
in the chance of onset of disease in the exposed plaintiff as a result of the
exposure, when compared to (a) the plaintiff’s chances of developing the disease
had he or she not been exposed, and (b) the chances of the members of the
public at large of developing the disease; (4) the seriousness of the disease for
which the plaintiff is at risk; and (5) the clinical value of early detection and
diagnosis. Under this holding, it is for the trier of fact to decide, on the basis of
competent medical testimony, whether and to what extent the particular
plaintiff’s exposure to toxic chemicals in a given situation justifies future
periodic medical monitoring.” (Potter, supra, 6 Cal.4th at p. 1009.)
• “The crucial distinction, in other words, is in the nature of the monitoring, not
the nature of the harm. ‘[E]ven if a defendant negligently exposes a smoker to
toxins that significantly increase the smoker’s risk of cancer, that defendant is
not liable for reasonably certain future medical monitoring costs unless the
recommended monitoring calls for tests or examinations that are in addition to or
different from the type of monitoring that the smoker should prudently undertake
regardless of the subsequent toxic exposure.’ This accords with the policy
concern being addressed in that part of [Potter], which was to avoid ‘open[ing]
the floodgates of litigation.’ If ‘the plaintiff already remains responsible for any
monitoring that is shown to be medically advisable due solely to his or her
smoking or other preexisting condition,’ he or she will have no incentive to sue
for contribution from a subsequent tortfeasor who has caused no need for
additional or different monitoring.” (Gutierrez v. Cassiar Mining Corp. (1998) 64
Cal.App.4th 148, 156 [75 Cal.Rptr.2d 132], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1846 et seq.
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.20A
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.01[3][b] (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
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3903C. Past and Future Lost Earnings (Economic Damage)
[Insert number, e.g., “3.”] [Past] [and] [future] lost earnings.
[To recover damages for past lost earnings, [name of plaintiff] must prove
the amount of [insert one or more of the following:
income/earnings/salary/wages] that [he/she/nonbinary pronoun] has lost to
date.]
[To recover damages for future lost earnings, [name of plaintiff] must
prove the amount of [insert one or more of the following: income/earnings/
salary/wages] [he/she/nonbinary pronoun] will be reasonably certain to
lose in the future as a result of the injury.]
New September 2003; Revised November 2020
Directions for Use
This instruction is not intended for use in employment cases.
Use this instruction along with CACI No. 3906, Lost Earnings and Lost Earning
Capacity—Jurors Not to Reduce Damages on Basis of Race, Ethnicity, or Gender
(Economic Damage).
Sources and Authority
• Estimations, Measures, or Calculations of Past, Present, or Future Damages.
Civil Code section 3361.
• “We know of no rule of law that requires that a plaintiff establish the amount of
his actual earnings at the time of the injury in order to obtain recovery for loss
of wages although, obviously, the amount of such earnings would be helpful to
the jury in particular situations.” (Rodriguez v. McDonnell Douglas Corp. (1978)
87 Cal.App.3d 626, 656 [151 Cal.Rptr. 399].)
• “ ‘To entitle a plaintiff to recover present damages for apprehended future
consequences, there must be evidence to show such a degree of probability of
their occurring as amounts to a reasonable certainty that they will result from the
original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d
576, 588 [81 P.2d 894], internal citation omitted.)
• “ ‘Under the prevailing American rule, a tort victim suing for damages for
permanent injuries is permitted to base his recovery “on his prospective earnings
for the balance of his life expectancy at the time of his injury undiminished by
any shortening of that expectancy as a result of the injury.” ’ ” (Fein v.
Permanente Medical Group (1985) 38 Cal.3d 137, 153 [211 Cal.Rptr. 368, 695
P.2d 665], internal citations omitted.)
• “Requiring the plaintiff to prove future economic losses are reasonably certain
‘ensures that the jury’s fixing of damages is not wholly, and thus impermissibly,
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speculative.’ ” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 738 [214
Cal.Rptr.3d 113].)
• “[T]he majority view is that no deduction is made for the injured party’s
expected living expenses during the lost years.” (Overly v. Ingalls Shipbuilding,
Inc. (1999) 74 Cal.App.4th 164, 171 [87 Cal.Rptr.2d 626], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1842, 1843
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.39–1.41
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.10–52.11 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.190 (Matthew
Bender)
California Civil Practice: Torts §§ 5:14, 5:15 (Thomson Reuters)
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3903D. Lost Earning Capacity (Economic Damage)
[Insert number, e.g., “4.”] The loss of [name of plaintiff]’s ability to earn
money.
To recover damages for the loss of the ability to earn money as a result
of the injury, [name of plaintiff] must prove:
1. That it is reasonably certain that the injury that [name of plaintiff]
sustained will cause [him/her/nonbinary pronoun] to earn less
money in the future than [he/she/nonbinary pronoun] otherwise
could have earned; and
2. The reasonable value of that loss to [him/her/nonbinary pronoun].
In determining the reasonable value of the loss, compare what it is
reasonably probable that [name of plaintiff] could have earned without
the injury to what [he/she/nonbinary pronoun] can still earn with the
injury. [Consider the career choices that [name of plaintiff] would have
had a reasonable probability of achieving.] It is not necessary that [he/
she/nonbinary pronoun] have a work history.
New September 2003; Revised April 2004, April 2008, May 2017, November 2020
Directions for Use
This instruction is not intended for use in employment cases.
Use this instruction along with CACI No. 3906, Lost Earnings and Lost Earning
Capacity—Jurors Not to Reduce Damages on Basis of Race, Ethnicity, or Gender
(Economic Damage).
If lost profits are asserted as an element of damages, see CACI No. 3903N, Lost
Profits (Economic Damage).
If there is a claim for both lost future earnings and lost earning capacity, give also
CACI No. 3903C, Past and Future Lost Earnings (Economic Damage). The verdict
form should ensure that the same loss is not computed under both standards.
In the last paragraph, include the bracketed sentence if the plaintiff is of sufficient
age that reasonable probabilities can be projected about career opportunities.
Sources and Authority
• Estimations, Measures, or Calculations of Past, Present, or Future Damages.
Civil Code section 3361.
• “Before [lost earning capacity] damages may be awarded, a jury must (1) find
the injury that the plaintiff sustained will result in a loss of earning capacity, and
(2) assign a value to that loss by comparing what the plaintiff could have earned
without the injury to what she can still earn with the injury.” (Licudine v.
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Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 887 [208 Cal.Rptr.3d
170].)
• “Loss of earning power is an element of general damages which can be inferred
from the nature of the injury, without proof of actual earnings or income either
before or after the injury, and damages in this respect are awarded for the loss of
ability thereafter to earn money.” (Connolly v. Pre-Mixed Concrete Co. (1957) 49
Cal.2d 483, 489 [319 P.2d 343].)
• “Because these damages turn on the plaintiff’s earning capacity, the focus is ‘not
[on] what the plaintiff would have earned in the future[,] but [on] what she could
have earned.’ Consequently, proof of the plaintiff’s prior earnings, while relevant
to demonstrate earning capacity, is not a prerequisite to the award of these
damages, nor a cap on the amount of those damages. Indeed, proof that the
plaintiff had any prior earnings is not required because the ‘vicissitudes of life
might call upon [the plaintiff] to make avail of her capacity to work,’ even if she
had not done so previously.” (Licudine, supra, 3 Cal.App.5th at pp. 893–894,
internal citations omitted.)
• “Such damages are ‘. . . awarded for the purpose of compensating the plaintiff
for injury suffered, i.e., restoring . . . [her] as nearly as possible to . . . [her]
former position, or giving . . . [her] some pecuniary equivalent.’ Impairment of
the capacity or power to work is an injury separate from the actual loss of
earnings.” (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 412 [196
Cal.Rptr. 117], original italics, internal citations omitted.)
• “[T]he jury must fix a plaintiff’s future earning capacity based on what it is
‘reasonably probable’ she could have earned.” (Licudine, supra, 3 Cal.App.5th at
p. 887.)
• “A plaintiff’s earning capacity without her injury is a function of two
variables—the career(s) the plaintiff could have pursued and the salaries
attendant to such career(s).” (Licudine, supra, 3 Cal.App.5th at p. 894.)
• “How is the jury to assess what career(s) are available to the plaintiff? Is the sky
the limit? In other words, can a plaintiff urge the jury to peg her earning
capacity to the salary of a world-class athlete, neuroscientist, or best-selling
author just by testifying that is what she wanted to do? Or must the jury instead
determine a plaintiff’s earning capacity by reference to the career choices the
plaintiff stood a realistic chance of accomplishing? We conclude some modicum
of scrutiny by the trier of fact is warranted, and hold that the jury must look to
the earning capacity of the career choices that the plaintiff had a reasonable
probability of achieving.” (Licudine, supra, 3 Cal.App.5th at p. 894.)
• “Once the jury has determined which career options are reasonably probable for
the plaintiff to achieve, how is the jury to value the earning capacity of those
careers? Precedent suggests three methods: (1) by the testimony of an expert
witness; (2) by the testimony of lay witnesses, including the plaintiff; or (3) by
proof of the plaintiff’s prior earnings in that same career. As these options
suggest, expert testimony is not always required.” (Licudine, supra, 3
Cal.App.5th at p. 897.)
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• “[E]xpert testimony is not vital to a claim for loss of earning capacity.” (Lewis v.
Ukran (2019) 36 Cal.App.5th 886, 893 [248 Cal.Rptr.3d 839].)
• “A trier of fact may draw the inference that the plaintiff has suffered a loss of
earning capacity from the nature of the injury, but it is not required to draw that
inference.” (Martinez v. State Dept. of Health Care Services (2017) 19
Cal.App.5th 370, 374 [227 Cal.Rptr.3d 483].)
• “ ‘Under the prevailing American rule, a tort victim suing for damages for
permanent injuries is permitted to base his recovery “on his prospective earnings
for the balance of his life expectancy at the time of his injury undiminished by
any shortening of that expectancy as a result of the injury.” ’ ” (Fein v.
Permanente Medical Group (1985) 38 Cal.3d 137, 153 [211 Cal.Rptr. 368, 695
P.2d 665], internal citations omitted.)
• “[T]he majority view is that no deduction is made for the injured party’s
expected living expenses during the lost years.” (Overly v. Ingalls Shipbuilding,
Inc. (1999) 74 Cal.App.4th 164, 175 [87 Cal.Rptr.2d 626], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1842, 1843
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.42
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.10, 52.11 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.140, 64.175
(Matthew Bender)
California Civil Practice: Torts § 5:14 (Thomson Reuters)
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3903E. Loss of Ability to Provide Household Services (Economic
Damage)
[Insert number, e.g., “5.”] The loss of [name of plaintiff]’s ability to provide
household services.
To recover damages for the loss of the ability to provide household
services, [name of plaintiff] must prove the reasonable value of the
services [he/she/nonbinary pronoun] would have been reasonably certain
to provide to [his/her/nonbinary pronoun] household if the injury had not
occurred.
New September 2003
Sources and Authority
• “The first category consists of the reasonable value of nursing and other services
that Decedent would have provided to his wife prior to his death, but was unable
to provide due to his illness (replacement care). Again, [defendant] does not
contest the recoverability of such damages here. Nor did it below. Such damages
are recoverable. ‘Generally, household services damages represent the detriment
suffered when injury prevents a person from contributing some or all of his or
her customary services to the family unit.’ ” (Williams v. The Pep Boys Manny
Moe & Jack of California (2018) 27 Cal.App.5th 225, 238 [238 Cal.Rptr.3d 809]
[citing this instruction].)
• “The justification for awarding this type of damage as part of the loss of future
earnings award is that the plaintiff should be compensated for the value of the
services he would have performed during the lost years which, because of the
injury, will now have to be performed by someone else.” (Overly v. Ingalls
Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 171, fn. 5 [87 Cal.Rptr.2d 626],
internal citation omitted.)
• “ ‘To entitle a plaintiff to recover present damages for apprehended future
consequences, there must be evidence to show such a degree of probability of
their occurring as amounts to a reasonable certainty that they will result from the
original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d
576, 588 [81 P.2d 894], internal citation omitted.)
Secondary Sources
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.64–1.66
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
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3903F. Damage to Real Property (Economic Damage)
[Insert number, e.g., “6.”] The harm to [name of plaintiff]’s property.
To recover damages for harm to property, [name of plaintiff] must prove
[the reduction in the property’s value/ [or] the reasonable cost of
repairing the harm]. [If there is evidence of both, [name of plaintiff] is
entitled to the lesser of the two amounts. [However, if [name of plaintiff]
has a genuine desire to repair the property for personal reasons, and if
the costs of repair are reasonable given the damage to the property and
the value after repair, then the costs of repair may be awarded even if
they exceed the property’s loss of value.]]
[To determine the reduction in value, you must determine the fair
market value of the property before the harm occurred and then
subtract the fair market value of the property immediately after the
harm occurred. The difference is the reduction of value.
“Fair market value” is the highest price for the property that a willing
buyer would have paid to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That the buyer and seller know all the uses and purposes for
which the property is reasonably capable of being used.]
[To determine whether the cost of repairing the harm is reasonable, you
must decide if there is a reasonable relationship between the cost of
repair and the harm caused by [name of defendant]’s conduct. You must
consider the expense and time involved to restore the property to its
original condition compared to the value of the property [and [insert
other applicable factors.]].
If you find that the cost of repairing the harm is not reasonable, then
you may award any reduction in the property’s value.]
New September 2003; Revised April 2008, April 2009
Directions for Use
Give this instruction for damages to real property caused by trespass, permanent
nuisance, or other tortious conduct. See also CACI No. 3903G, Loss of Use of Real
Property (Economic Damage).
If there is evidence of both diminution in value and cost of repair, include all
optional paragraphs. However, include the last bracketed sentence in the first
paragraph only if the judge has determined that the claimed personal reasons are
legally sufficient to justify the costs of repair.
If only the cost of repair is at issue, give just the first paragraph. However, if the
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reasonableness of the cost of repair is at issue, then the value of the property must
be considered, and all paragraphs must be included. If only diminution of value is at
issue, omit the last two optional paragraphs.
Sources and Authority
• Damages for Wrongful Occupation of Real Property. Civil Code section 3334(a).
• “The measure of damages for tortious injury to property, including trees, ‘is the
amount which will compensate for all the detriment proximately caused thereby,
whether it could have been anticipated or not.’ ‘Such damages are generally
determined as the difference between the value of the property before and after
the injury.’ But ‘[d]iminution in market value . . . is not an absolute limitation;
several other theories are available to fix appropriate compensation for the
plaintiff’s loss.’ ‘ “There is no fixed, inflexible rule for determining the measure
of damages for injury to, or destruction of, property; whatever formula is most
appropriate to compensate the injured party for the loss sustained in the
particular case, will be adopted.” ’ One such alternative measure of damages is
the cost of restoring the property to its condition prior to the injury, and a
plaintiff may recover these costs even if they exceed diminution in value if there
is a ‘personal reason’ for restoration.” (Salazar v. Matejcek (2016) 245
Cal.App.4th 634, 643−644 [199 Cal.Rptr.3d 705], internal citations omitted.)
• “For tortious injury to real property, the general rule is that the plaintiff may
recover the lesser of (1) the diminution in the property’s fair market value, as
measured immediately before and immediately after the damage; or (2) the cost
to repair the damage and restore the property to its pretrespass condition, plus
the value of any lost use. The practical effect of this rule is to limit damages to
property to the fair market value of the property prior to the damage.” (Kelly v.
CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 450 [102 Cal.Rptr.3d 32].)
• “Defendant . . . contends that the trial court awarded excessive damages, on the
ground that when the cost of restoration is less than the depreciation in value,
the former is the measure of damages. This contention cannot be sustained.
Plaintiffs established their damages by showing the depreciation in value. It was
then incumbent upon defendants to come forward with proof that the cost of
restoration would be less.” (Herzog v. Grosso (1953) 41 Cal.2d 219, 226 [259
P.2d 429], internal citations omitted.)
• “Where a plaintiff establishes damages by showing depreciation in the value of
real property, courts have held defendants to the burden of coming forward with
proof that cost of restoration would be less. It follows that when a plaintiff
proves damages by showing the cost of repairs it should be incumbent on the
defendant to introduce evidence that the repair costs exceed the value of the
property.” (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr.
399], internal citations omitted.)
• “The ‘fair market value’ of real property is ‘the best price obtainable from a
purchaser on a cash sale.’ It ‘is measured by the highest price the property
would command if offered for sale in the open market with a reasonable time
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allowed to the seller to find a purchaser who will buy with a knowledge of all
the uses to which it may be put.’ ” (CMSH Co. v. Antelope Development, Inc.
(1990) 223 Cal.App.3d 174, 182 [272 Cal.Rptr. 605], internal citations omitted.)
• “Civil Code section 3334 requires that restoration costs be reasonable. In
addition, general principles of damages in trespass cases require that the
damages bear a reasonable relationship to the harm caused by the trespass.
Mangini explains that whether abatement costs are reasonable requires an
evaluation of a number of fundamental considerations, including the expense and
time required to perform the abatement, along with other legitimate competing
interests. (Mangini, supra, 12 Cal.4th at p. 1100; see also Beck, supra, 44
Cal.App.4th at pp. 1221–1222 [reasonableness includes consideration of
monetary expense, burden on public, and costs of remediation versus value of
land].)” (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153
Cal.App.4th 583, 601 [63 Cal.Rptr.3d 165], original italics.)
• “The trial court must instruct the jury on how to determine whether the statutory
requirement that any restoration costs be reasonable was met. It must also advise
the jury what to do if the jury concludes the evidence shows the proposed
restoration project to be unreasonable.” (Starrh & Starrh Cotton Growers, supra,
153 Cal.App.4th at pp. 600–601.)
• “Whether the restoration costs are reasonable is a question for the trier of fact in
the first instance, but an award of such costs may be unreasonable as a matter of
law if it is grossly disproportionate to the value of the property or the harm
caused by the defendant.” (Kelly, supra, 179 Cal.App.4th at p. 451.)
• “Trial courts in trespass actions have historically been given great flexibility to
award damages that fit the particular facts of the case.” (Starrh & Starrh Cotton
Growers, supra, 153 Cal.App.4th at p. 604.)
• “[I]f a plaintiff has a personal reason to restore the property to its former
condition, he or she may recover the restoration costs even if such costs exceed
the diminution in value. This rule is sometimes referred to as the ‘ “personal
reason” exception.’ Even when this exception applies, however, restoration costs
‘are allowed only if they are reasonable in light of the value of the real property
before the injury and the actual damage sustained.’ ” (Kelly, supra, 179
Cal.App.4th at pp. 450–451, internal citations omitted.)
• “Whether the restoration costs are reasonable is a question for the trier of fact in
the first instance, but an award of such costs may be unreasonable as a matter of
law if it is grossly disproportionate to the value of the property or the harm
caused by the defendant.” (Salazar, supra, 245 Cal.App.4th at p. 644.)
• “Contrary to the defendants’ argument, the ‘personal reason’ exception does not
require that the [plaintiffs] own a ‘unique’ home. Rather, all that is required is
some personal use by them and a bona fide desire to repair or restore.” (Orndorff
v. Christiana Community Builders (1990) 217 Cal.App.3d 683, 688 [266
Cal.Rptr. 193].)
• “Under California law, damages for diminution in value may only be recovered
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for permanent, not continuing, nuisances.” (Gehr v. Baker Hughes Oil Field
Operations, Inc. (2008) 165 Cal.App.4th 660, 663 [81 Cal.Rptr.3d 219].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1912, 1913
California Real Property Remedies Practice (Cont.Ed.Bar) Damages for Injury to
Real Property, § 11.5
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.35 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.147 (Matthew
Bender)
California Civil Practice: Torts § 5:19 (Thomson Reuters)
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3903G. Loss of Use of Real Property (Economic Damage)
[Insert number, e.g., “7.”] The loss of use of [name of plaintiff]’s [insert
identification of real property].
To recover damages for the loss of use, [name of plaintiff] must prove [the
reasonable cost to rent similar property for the time when
[he/she/nonbinary pronoun/it] could not use [his/her/nonbinary pronoun/its]
own property/ [or] the benefits obtained by [name of defendant] because
of [his/her/nonbinary pronoun/its] wrongful occupation]. [If there is
evidence of both, [name of plaintiff] is entitled to the greater of the two
amounts.]
[Benefits obtained may include [name of defendant]’s profits if they are
directly linked to the wrongful occupation.]
New September 2003; Revised April 2008
Directions for Use
Use this instruction along with CACI No. 3903F, Damage to Real Property
(Economic Damage). Include the optional last paragraph if plaintiff claims that the
measure of damages is the benefits obtained by the defendant and that these include
the defendant’s profits obtained because of the tortious conduct.
This instruction may be used if the general measure of damages under CACI No.
3903F will be the cost of repair rather than diminution in value. (See Erlich v.
Menezes (1999) 21 Cal.4th 543, 555 [87 Cal.Rptr.2d 886, 981 P.2d 978].)
If the jury determines that the cost of repair is not reasonable, it is not clear whether
loss-of-use damages are recoverable. The rule has been that when real property has
been damaged so that it cannot be restored, damages for loss of use may not be
recovered. (Ferraro v. Southern California Gas Co. (1980) 102 Cal.App.3d 33,
50–51 [162 Cal.Rptr. 238].) But in 1992, the Legislature amended Civil Code
section 3334 to allow for “benefits obtained” as an alternative to rental value as a
measure of damages for loss of use. The legislative intent was to deter polluters
from dumping toxic material on land of little value. (See Starrh & Starrh Cotton
Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 603 [63 Cal.Rptr.3d
165].) In Starrh & Starrh Cotton Growers, the court indicated that it was extremely
unlikely in that case that the cost of repair could be considered to be reasonable, but
also allowed the jury to consider awarding the defendant’s profits as “benefits
obtained.” (Id. at pp. 598–606.) The court did not limit the jury’s right to award
profits as damages only if it found the cost of repair to be reasonable. And it seems
that if the court believed there was such a limitation, it would have expressly said
so. The legislative objective would not be achieved if one could pollute land to the
point that it could not reasonably be restored and also not be required to pay for the
benefits obtained. Therefore, it seems most likely that this limitation on loss-of-use
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CACI No. 3903G DAMAGES
damages no longer applies in light of the 1992 amendment and its legislative
history.
This instruction is not intended for cases in which the plaintiff is a landlord seeking
to recover compensation for lost rents. A more appropriate instruction for that
situation is CACI No. 3903N, Lost Profits (Economic Damage).
Sources and Authority
• Damages for Wrongful Occupation of Real Property. Civil Code section 3334.
• “[T]he general measure of damages where injury to property is capable of being
repaired is the reasonable cost of repair together with the value of lost use
during the period of injury.” (Erlich, supra, 21 Cal.4th at p.555, internal citation
omitted.)
• “There is no question that when cost of restoration is the correct measure of
damages for injury to real property, compensation for loss of use . . . would be
appropriate.” (Ferraro, supra, 102 Cal.App.3d at p 51.)
• “There is nothing in Civil Code section 3334 or its legislative history to suggest
that the phrase ‘benefits obtained’ should be read narrowly. To the contrary, the
intent of the Legislature was to eliminate any economic incentive to trespass as a
means of waste disposal. (Sen. Com. on Judiciary, com. on Assem. Bill No.
2663 (1991–1992 Reg. Sess.) for June 23, 1992, hearing, p. 2.) If the Legislature
had wanted to limit the phrase ‘benefits obtained’ to costs avoided, it could
easily have done so. [¶] Further, this interpretation is consistent with the
fundamental rule that the prime consideration in interpreting a statute is to
achieve the objective of the statute. As we have indicated, the evil to be
prevented by the 1992 amendments is identified in the legislative history—to
prevent any economic advantage for polluters resulting from the wrongful
dumping on another’s land.” (Starrh & Starrh Cotton Growers, supra, 153
Cal.App.4th at p. 604, original italics, internal citation omitted,)
• “Trial courts in trespass actions have historically been given great flexibility to
award damages that fit the particular facts of the case. [Defendant] has admitted
that it chose the challenged method for disposing of produced water because it
was the least expensive alternative and maximized its profits. In light of these
factors, we conclude that the term ‘benefits obtained’ may include profits
enjoyed by [defendant] that are directly linked to the wrongful trespass.” (Starrh
& Starrh Cotton Growers, supra, 153 Cal.App.4th at p. 604, internal citations
omitted.)
• Restatement Second of Torts section 931 provides:
If one is entitled to a judgment for the detention of, or for preventing the use of,
land or chattels, the damages include compensation for
(a) the value of the use during the period of detention or prevention
or the value of the use of or the amount paid for a substitute, and
(b) harm to the subject matter or other harm of which the detention
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is the legal cause.
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1913
California Real Property Remedies Practice (Cont.Ed.Bar) Damages for Injury to
Real Property, § 11.5
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.36 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
California Civil Practice: Torts § 5:19 (Thomson Reuters)
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3903H. Damage to Annual Crop (Economic Damage)
[Insert number, e.g., “8.”] The harm to [name of plaintiff]’s crop.
[Damages for the destruction of an entire annual crop are determined as
follows:
1. Determine the expected market value of the crop before the harm
occurred; and
2. Subtract from this amount the estimated costs of producing and
marketing the crop, excluding costs that have already been paid
by [name of plaintiff].]
[Damages for the destruction of part of an annual crop are determined
as follows:
1. Determine the expected market value of the crop before the harm
occurred;
2. Subtract from this amount the estimated costs of producing and
marketing the crop. This is the expected net profit.
3. Next, subtract the actual cost of producing and marketing the
surviving crop from the actual receipts. This is actual net profit.
4. Subtract number 3 from number 2. This amount is [name of
plaintiff]’s damages for this loss.]
New September 2003
Directions for Use
Select one of the bracketed options depending on whether the plaintiff is seeking
damages for the destruction of all or part of a crop.
Sources and Authority
• “They rely on the distinction drawn between the wrongful destruction of
perennial crops, such as volunteer grass for grazing purposes, and annually
planted crops. Thus, in the former case the proper measure of damages is the
difference in the rental value of the property with and without the crops, while in
the latter case the proper measure of damages is the market value of the
estimated product at the time of destruction, less the cost of producing and
marketing the same.” (Wolfsen v. Hathaway (1948) 32 Cal.2d 632, 644 [198 P.2d
1], internal citations omitted, overruled on other grounds in Flores v. Arroyo
(1961) 56 Cal.2d 492 [15 Cal.Rptr. 87, 364 P.2d 263].)
• “We concede that the proper method is to show what the crop would have been
and to deduct the probable cost of producing and selling such crop with the
difference between market value and costs constituting the amount of damages.
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We have so held in [cited cases]. The rule is clearly set forth also in other
California cases and authorities.” (Spinelli v. Tallcott (1969) 272 Cal.App.2d 589,
592 [77 Cal.Rptr. 481], internal citations omitted.)
• “The proper measure of damages is the market value of the estimated product at
the time of destruction, less the cost of producing and marketing the same.”
(Parks v. Atwood Crop Dusters, Inc. (1953) 118 Cal.App.2d 368, 373 [257 P.2d
653], internal citation omitted.)
• “The correct rule for the measurement of damages for the partial destruction of a
growing crop was discussed in Rystrom v. Sutter Butte Canal Co. (1925) 72
Cal.App. 518, 522–523 [249 P. 53]. In that case a growing crop of rice had been
damaged. The court pointed out that estimated costs of production must first be
deducted from expected gross receipts to arrive at the expected net profit. Next,
the court said, actual cost of production must be deducted from actual receipts to
arrive at actual net profit. Finally, deducting actual net profit from expected net
profit fixes the actual damage.” (Solis v. County of Contra Costa (1967) 251
Cal.App.2d 844, 847–848 [60 Cal.Rptr. 99].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1920
California Real Property Remedies Practice (Cont.Ed.Bar) Damages for Injury to
Real Property, § 11.14
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.34[1] (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts § 5:19 (Thomson Reuters)
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3903I. Damage to Perennial Crop (Economic Damage)
[Insert number, e.g., “9.”] The harm to [name of plaintiff]’s crop.
[Damages for destruction of [describe perennial crop] are determined as
follows. For the time period from the destruction of the crop until the
crop can be restored you must:
1. Determine the rental value of the land with the crop; and
2. Subtract from this amount the rental value of the land without
the crop.]
[Damages for destruction of [describe perennial crop], which can be
harvested and sold, are determined as follows:
1. Determine the expected market value of the crop before the harm
occurred; and
2. Subtract from this amount the estimated costs of producing and
marketing the crop, excluding costs that have already been paid
by [name of plaintiff].]
[If the [plants/roots/seeds] responsible for producing the crop are
destroyed, the measure of damages may also include the costs of
[reseeding/replanting].]
New September 2003
Directions for Use
If the plaintiff claims damages for multiple crops, damages must be calculated for
each crop that would have been produced until the land was restored.
Sources and Authority
• “They rely on the distinction drawn between the wrongful destruction of
perennial crops, such as volunteer grass for grazing purposes, and annually
planted crops. Thus, in the former case the proper measure of damages is the
difference in the rental value of the property with and without the crops, while in
the latter case the proper measure of damages is the market value of the
estimated product at the time of destruction, less the cost of producing and
marketing the same.” (Wolfsen v. Hathaway (1948) 32 Cal.2d 632, 644 [198 P.2d
1], overruled on other grounds in Flores v. Arroyo (1961) 56 Cal.2d 492, 497
[15 Cal.Rptr. 87, 364 P.2d 263].)
• “Where the roots of the grass in a pasture have been destroyed by water or fire
so as to prevent the matured stocks from automatically reseeding the field, the
measure of damages includes not only the rental value of the pasture, but also
the additional cost of reseeding the field.” (Miller & Lux, Inc. v. Pinelli (1927)
84 Cal.App. 42, 49 [257 P. 573].)
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• “Upon the foregoing authorities, and upon good reason, we conclude that the
measure of damages for the appropriation or destruction of pasturage, which is
used for grazing purposes, where the grass cannot be reasonably severed and
marketed separate from the land, is the reasonable rental value thereof in that
vicinity for pasture purposes.” (Miller & Lux, Inc., supra, 84 Cal.App. at p. 51.)
• “The measure of damages for the destruction of or injury to fruit, nut, or other
productive trees is generally the difference in the value of the land before and
after the destruction or injury. Damages may be additionally measured by the
value of the trees on the premises in their growing state. Some courts have also
awarded damages for the resulting crop loss. Where annual crops are damaged
each year for several years, a grower may recover for loss of the crops during
those years, the increased labor in the care of the land, and damages for injury
to the trees themselves. [¶] More recently, the measure of damages for the
destruction of fruit trees has included the costs of replacing the trees or restoring
the property to its condition prior to the injury. In Baker v. Ramirez, the court
held that the cost of restoring an orange grove was the most appropriate measure
of damages, where there was no impediment to replacing the orange trees and it
was reasonable to replace the trees because only a small portion of the grove
was damaged. The court noted that the difference between the value of the
property before and after the injury was only one possible measure of damages.”
(Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88
Cal.App.4th 439, 447 [105 Cal.Rptr.2d 856, 861], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1920
California Real Property Remedies Practice (Cont.Ed.Bar) Damages for Injury to
Real Property, § 11.14
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.34[1] (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts § 5:19 (Thomson Reuters)
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3903J. Damage to Personal Property (Economic Damage)
[Insert number, e.g., “10.”] The harm to [name of plaintiff]’s [item of
personal property, e.g., automobile].
To recover damages for harm to personal property, [name of plaintiff]
must prove the reduction in the [e.g., automobile]’s value or the
reasonable cost of repairing it, whichever is less. [If there is evidence of
both, [name of plaintiff] is entitled to the lesser of the two amounts.]
[However, if you find that the [e.g., automobile] can be repaired, but after
repairs it will be worth less than it was before the harm, the damages
are (1) the difference between its value immediately before the harm and
its lesser value immediately after the repairs have been made; plus (2)
the reasonable cost of making the repairs. The total amount awarded
may not exceed the [e.g., automobile]’s value immediately before the
harm occurred.]
To determine the reduction in value if repairs cannot be made, you must
determine the fair market value of the [e.g., automobile] immediately
before the harm occurred and then subtract the fair market value
immediately after the harm occurred.
“Fair market value” is the highest price that a willing buyer would have
paid to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That both buyer and seller have reasonable knowledge of all
relevant facts about the condition and quality of the [e.g.,
automobile].
New September 2003; Revised December 2011, June 2013, December 2015,
November 2018, November 2019
Directions for Use
Do not give this instruction if the property had no monetary value either before or
after injury. (See Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1560 [126
Cal.Rptr.3d 581] [CACI No. 3903J has no application to prevent proof of out-of-
pocket expenses to save the life of a pet cat].) See CACI No. 3903O, Injury to
Pet—Costs of Treatment (Economic Damage).
An insurer may draft around this rule in the policy by limiting recovery to either
cost of repair or diminution in value, but not both. (Baldwin v. AAA Northern
California, Nevada & Utah Ins. Exchange (2016) 1 Cal.App.5th 545, 550 [204
Cal.Rptr.3d 433].)
Give the optional second paragraph if the property can be repaired, but the value
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after repair may be less than before the harm occurred. (See Merchant Shippers
Association v. Kellogg Express and Draying Co. (1946) 28 Cal.2d 594, 600 [170
P.2d 923].)
There are exceptions to the general rule that recovery is limited to the lesser of cost
of repair or diminution in value. (See AIU Ins. Co. v. Superior Court (1990) 51
Cal.3d 807, 834 [274 Cal.Rptr. 820, 799 P.2d 1253].) If an exception is at issue,
modifications will be required to the first two paragraphs.
The definition of “fair market value” has been adapted from Treasury regulations.
(See 26 C.F.R. § 20.2031-1(b); United States v. Cartwright (1973) 411 U.S. 546,
550 [93 S.Ct. 1713, 36 L.Ed.2d 528]; see also CACI No. 3501, “Fair Market
Value” Explained; Code Civ. Proc., § 1263.320 [definition for eminent domain].)
Sources and Authority
• “The general rule is that the measure of damages for tortious injury to personal
property is the difference between the market value of the property immediately
before and immediately after the injury, or the reasonable cost of repair if that
cost be less than the diminution in value. This rule stems from the basic code
section fixing the measure of tort damage as ‘the amount which will compensate
for all the detriment proximately caused thereby.’ [citations]” (Pacific Gas &
Electric Co. v. Mounteer (1977) 66 Cal.App.3d 809, 812 [136 Cal.Rptr. 280].)
• “It has also been held that the price at which a thing can be sold at public sale,
or in the open market, is some evidence of its market value. In San Diego Water
Co. v. San Diego, the rule is announced that the judicial test of market value
depends upon the fact that the property in question is marketable at a given
price, which in turn depends upon the fact that sales of similar property have
been and are being made at ascertainable prices. In Quint v. Dimond, it was held
competent to prove market value in the nearest market.” (Tatone v. Chin Bing
(1936) 12 Cal.App.2d 543, 545–546 [55 P.2d 933], internal citations omitted.)
• “ ‘Where personal property is injured but not wholly destroyed, one rule is that
the plaintiff may recover the depreciation in value (the measure being the
difference between the value immediately before and after the injury), and
compensation for the loss of use.’ In the alternative, the plaintiff may recover the
reasonable cost of repairs as well as compensation for the loss of use while the
repairs are being accomplished. If the cost of repairs exceeds the depreciation in
value, the plaintiff may only recover the lesser sum. Similarly, if depreciation is
greater than the cost of repairs, the plaintiff may only recover the reasonable cost
of repairs. If the property is wholly destroyed, the usual measure of damages is
the market value of the property.” (Hand Electronics, Inc. v. Snowline Joint
Unified School Dist. (1994) 21 Cal.App.4th 862, 870 [26 Cal.Rptr.2d 446],
internal citations omitted.)
• The cost of replacement is not a proper measure of damages for injury to
personal property. (Hand Electronics Inc., supra, 21 Cal.App.4th at p. 871.)
• “When conduct complained of consists of intermeddling with personal property
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‘the owner has a cause of action for trespass or case, and may recover only the
actual damages suffered by reason of the impairment of the property or the loss
of its use.’ ” (Itano v. Colonial Yacht Anchorage (1968) 267 Cal.App.2d 84, 90
[72 Cal.Rptr. 823], internal citations omitted.)
• “The measure of damage for wrongful injury to personal property is the
difference between the market value of the property immediately before and
immediately after the injury, or the reasonable cost of repair if such cost be less
than the depreciation in value.” (Smith v. Hill (1965) 237 Cal.App.2d 374, 388
[47 Cal.Rptr. 49], internal citations omitted.)
• “[I]t is said . . . that ‘if the damaged property cannot be completely repaired,
the measure of damages is the difference between its value before the injury and
its value after the repairs have been made, plus the reasonable cost of making
the repairs. The foregoing rule gives the plaintiff the difference between the
value of the machine before the injury and its value after such injury, the amount
thereof being made up of the cost of repairs and the depreciation
notwithstanding such repairs.’ The rule urged by defendant, which limits the
recovery to the cost of repairs, is applicable only in those cases in which the
injured property ‘can be entirely repaired.’ This latter rule presupposes that the
damaged property can be restored to its former state with no depreciation in its
former value.” (Merchant Shippers Association, supra, 28 Cal.2d at p. 600,
internal citations omitted.)
• “In personal property cases, the plaintiffs are entitled to present evidence of the
cost of repairs even in cases where recovery is limited to the lost market value
of property. The cost of repairs constitutes a prima facie measure of damages,
and it is the defendant’s burden to respond with proof of a lesser diminution in
value.” (Kimes, supra, 195 Cal.App.4th at p. 1560, internal citation omitted.)
• “[R]ecovery of tort damages is not invariably limited by the value of damaged
property. The courts have recognized that recovery in excess of such value may
be necessary to restore the plaintiff to the position it occupied prior to a
defendant’s wrongdoing.” (AIU Ins. Co., supra, 51 Cal.3d at p. 834.)
• “In this case, the policy language was clear and explicit. Regarding coverage for
car damage, it provided that [insurer] ‘may pay the loss in money or repair . . .
damaged . . . property.’ The policy’s use of the term ‘may’ suggests [insurer]
had the discretion to choose between the two options.” (Baldwin, supra, 1
Cal.App.5th at p. 550, original italics.)
• “The trial court based its restitution order on the fair market value method, but it
abused its discretion by also awarding the cost to [plaintiff] to repair the
truck . . . . Having fully recovered the decrease in fair market value, [plaintiff]
was not entitled to also recover the cost of repair because repairing the truck
made it more valuable. Put another way, before the crime, [plaintiff] owned a
truck that was worth more than $20,000. After the crime, Smith was left with a
truck that was worth not much more than $3,000. [Plaintiff] was compensated
for this decrease in fair market value. However, if the truck is repaired, the value
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of the truck goes up, even though it does not go all the way up to the former
fair market value. Therefore, adding the cost of repair improperly alters the
results of the fair market value formula.” (People v. Sharpe (2017) 10
Cal.App.5th 741, 747 [216 Cal.Rptr.3d 744].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:220 et seq. (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Vehicles and Other Personal Property,
§§ 13.8–13.11
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.31 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, §§ 177.41, 177.44
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.26 et seq.
(Matthew Bender)
California Civil Practice: Torts § 5:16 (Thomson Reuters)
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3903K. Loss or Destruction of Personal Property (Economic
Damage)
[Insert number, e.g., “11.”] The [loss/destruction] of [name of plaintiff]’s
[item of personal property].
To recover damages for the [loss/destruction], [name of plaintiff] must
prove the fair market value of the [item of personal property] just before
the harm occurred.
“Fair market value” is the highest price that a willing buyer would have
paid to a willing seller, assuming:
1. That there is no pressure on either one to buy or sell; and
2. That both buyer and seller have reasonable knowledge of all
relevant facts about the condition and quality of the [item of
personal property].
New September 2003; Revised November 2019
Directions for Use
The definition of “fair market value” has been adapted from Treasury regulations.
(See 26 C.F.R. § 20.2031-1(b); United States v. Cartwright (1973) 411 U.S. 546,
550 [93 S.Ct. 1713, 36 L.Ed.2d 528]; see also CACI No. 3501, “Fair Market
Value” Explained; Code Civ. Proc., § 1263.320 [definition for eminent domain].)
Sources and Authority
• “ ‘As a general rule the measure of damage for the loss or destruction of
personal property is the value of the property at the time of such loss or
destruction.’ ” (Hand Electronics, Inc. v. Snowline Joint Unified School Dist.
(1994) 21 Cal.App.4th 862, 870 [26 Cal.Rptr.2d 446], internal citation omitted.)
• “It is well established that under [Civil Code] section 3333, the measure of
damages for the loss or destruction of personal property is generally determined
by the value of the property at the time of such loss or destruction.” (Pelletier v.
Eisenberg (1986) 177 Cal.App.3d 558, 567 [223 Cal.Rptr. 84].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1904
California Tort Damages (Cont.Ed.Bar) Vehicles & Other Personal Property, § 13.6
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.32 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts § 5:17 (Thomson Reuters)
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3903L. Damage to Personal Property Having Special Value (Civ.
Code, § 3355) (Economic Damage)
[Insert number, e.g., “12.”] The unique value of [name of plaintiff]’s [item
of personal property].
To recover damages for the unique value, [name of plaintiff] must prove
all of the following:
1. That the [item of personal property] had some market value;
2. That the [item of personal property] had unique value to [name of
plaintiff]; and
3. [That [name of defendant] had notice of this unique value before
the harm;]
3. [or]
3. [That [name of defendant]’s conduct was intentional and
wrongful.]
No fixed standard exists for deciding the amount of this value. You must
use your judgment to decide a reasonable amount based on the evidence
and your common sense.
New September 2003
Directions for Use
The judge should determine whether the peculiar value claimed by the plaintiff is
legally sufficient. While the subcommittee been unable to locate cases that state this
rule explicitly, cases have upheld the giving of this type of instruction where there is
substantial evidence of peculiar value.
Sources and Authority
• Damages for Loss of Property With Special Value. Civil Code section 3355.
• “[T]his section deals with property which has a market value and also a peculiar
value to the owner, and not with property having no market value.” (Zvolanek v.
Bodger Seeds, Ltd. (1935) 5 Cal.App.2d 106, 110 [42 P.2d 92].)
• “Peculiar value under Civil Code section 3355 refers to a property’s unique
economic value, not its sentimental or emotional value.” (McMahon v. Craig
(2009) 176 Cal.App.4th 1502, 1518 [97 Cal.Rptr.3d 555] [“peculiar value” refers
to special characteristics that increase an animal’s monetary value, not its
abstract value as a companion to its owner].)
• “[T]he question of whether plaintiff proved ‘peculiar value’ was a factual
question for the determination of the jury and that question was properly
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submitted to it for decision.” (King v. Karpe (1959) 170 Cal.App.2d 344, 349
[338 P.2d 979].)
Secondary Sources
California Tort Damages (Cont.Ed.Bar) Vehicles and Other Personal Property, § 13.7
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.33 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.47
(Matthew Bender)
California Civil Practice: Torts § 5:17 (Thomson Reuters)
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3903M. Loss of Use of Personal Property (Economic Damage)
[Insert number, e.g., “13.”] The loss of use of [name of plaintiff]’s [item of
personal property].
To recover damages for loss of use, [name of plaintiff] must prove the
reasonable cost to rent a similar [item of personal property] for the
amount of time reasonably necessary to repair or replace the [item of
personal property].
New September 2003
Sources and Authority
• “[A]n owner’s recovery for being deprived of the use of a damaged vehicle is
generally to be determined with reference to the period of time reasonably
required for the making of repairs.” (Valencia v. Shell Oil Co. (1944) 23 Cal.2d
840, 844 [147 P.2d 558].)
• “There appears to be no logical or practical reason why a distinction should be
drawn between cases in which the property is totally destroyed and those in
which it has been injured but is repairable, and we have concluded that when the
owner of a negligently destroyed commercial vehicle has suffered injury by
being deprived of the use of the vehicle during the period required for
replacement, he is entitled, upon proper pleading and proof, to recover for loss
of use in order to ‘compensate for all the detriment proximately caused’ by the
wrongful destruction.” (Reynolds v. Bank of America National Trust & Savings
Assn. (1959) 53 Cal.2d 49, 50–51 [345 P.2d 926].)
• “ ‘Loss of use’ of property is different from ‘loss’ of property. To take a simple
example, assume that an automobile is stolen from its owner. The value of the
‘loss of use’ of the car is the rental value of a substitute vehicle; the value of the
‘loss’ of the car is its replacement cost. The nature of ‘loss of use’ damages is
described in California Jurisprudence Third as: ‘The measure of damages for the
loss of use of personal property may be determined with reference to the rental
value of similar property which the plaintiff can hire for use during the period
when he is deprived of the use of his own property.’ ” (Collin v. American
Empire Insurance Co. (1994) 21 Cal.App.4th 787, 818 [26 Cal.Rptr.2d 391],
internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1905
California Tort Damages (Cont.Ed.Bar) Vehicles and Other Personal Property, § 13.6
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.32 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
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6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts § 5:17 (Thomson Reuters)
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3903N. Lost Profits (Economic Damage)
[Insert number, e.g., “13.”] Lost profits.
To recover damages for lost profits, [name of plaintiff] must prove it is
reasonably certain [he/she/nonbinary pronoun/it] would have earned
profits but for [name of defendant]’s conduct.
To decide the amount of damages for lost profits, you must determine
the gross amount [name of plaintiff] would have received but for [name of
defendant]’s conduct and then subtract from that amount the expenses
[including the value of the [specify categories of evidence, such as labor/
materials/rents/all expenses/interest of the capital employed]] [name of
plaintiff] would have had if [name of defendant]’s conduct had not
occurred.
The amount of the lost profits need not be calculated with mathematical
precision, but there must be a reasonable basis for computing the loss.
New September 2003
Directions for Use
This instruction is not intended for personal injury cases. Instead, use CACI
No. 3903C, Past and Future Lost Earnings (Economic Damage). (See Pretzer v.
California Transit Co. (1930) 211 Cal. 202, 207–208 [294 P. 382].)
Insertion of specified types of costs to be deducted from gross earnings is optional,
depending on the facts of the case. Other types of costs may be inserted as
appropriate.
Sources and Authority
• “The measure of damages in this state for the commission of a tort, as provided
by statute, is that amount which will compensate the plaintiff for all detriment
sustained by him as the proximate result of the defendant’s wrong, regardless of
whether or not such detriment could have been anticipated by the defendant. It is
well established in California, moreover, that such damages may include loss of
anticipated profits where an established business has been injured.” (Fibreboard
Paper Products Corp. v. East Bay Union of Machinists, Local 1304, United
Steelworkers of America, AFL-CIO (1964) 227 Cal.App.2d 675, 702 [39
Cal.Rptr. 64], internal citations omitted.)
• “In business cases, damages are based on net profits, as opposed to gross
revenue.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 397 [178
Cal.Rptr.3d 604].)
• “ ‘Lost profits, if recoverable, are more commonly special rather than general
damages . . . , and subject to various limitations. Not only must such damages
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CACI No. 3903N DAMAGES
be pled with particularity [citation], but they must also be proven to be certain
both as to their occurrence and their extent, albeit not with “mathematical
precision.” ’ ” (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 754
[118 Cal.Rptr.3d 531].)
• “ ‘[T]he general principle [is] that damages for the loss of prospective profits are
recoverable where the evidence makes reasonably certain their occurrence and
extent.’ Such damages must ‘be proven to be certain both as to their occurrence
and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773–774 [149
Cal.Rptr.3d 614, 288 P.3d 1237]), internal citation omitted.)
• “It is for the jury to determine the probabilities as to whether damages are
reasonably certain to occur in any particular case.” (Asahi Kasei Pharma Corp.
v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 972 [166 Cal.Rptr.3d 134].)
• “It is enough to demonstrate a reasonable probability that profits would have
been earned except for the defendant’s conduct. The plaintiff has the burden to
produce the best evidence available in the circumstances to attempt to establish a
claim for loss of profits.” (S. C. Anderson, Inc. v. Bank of America N.T. & S.A.
(1994) 24 Cal.App.4th 529, 536 [30 Cal.Rptr.2d 286], internal citations omitted.)
• “Historical data, such as past business volume, supply an acceptable basis for
ascertaining lost future profits. [Citations.] In some instances, lost profits may be
recovered where plaintiff introduces evidence of the profits lost by similar
businesses operating under similar conditions. [Citations.]” (Sargon Enterprises,
Inc., supra, 55 Cal.4th at p. 773.)
• “Regarding lost business profits, the cases have generally distinguished between
established and unestablished businesses. ‘[W]here the operation of an
established business is prevented or interrupted, as by a . . . breach of
contract . . . , damages for the loss of prospective profits that otherwise might
have been made from its operation are generally recoverable for the reason that
their occurrence and extent may be ascertained with reasonable certainty from
the past volume of business and other provable data relevant to the probable
future sales.’ ” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “[T]he lost profit inquiry is always speculative to some degree. Inevitably, there
will always be an element of uncertainty. Courts must not be too quick to
exclude expert evidence as speculative merely because the expert cannot say
with absolute certainty what the profits would have been. Courts must not
eviscerate the possibility of recovering lost profits by too broadly defining what
is too speculative. A reasonable certainty only is required, not absolute
certainty.” (Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 397–398
[248 Cal.Rptr.3d 623].)
• “ ‘On the other hand, where the operation of an unestablished business is
prevented or interrupted, damages for prospective profits that might otherwise
have been made from its operation are not recoverable for the reason that their
occurrence is uncertain, contingent and speculative. [Citations.] . . . But
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DAMAGES CACI No. 3903N
although generally objectionable for the reason that their estimation is
conjectural and speculative, anticipated profits dependent upon future events are
allowed where their nature and occurrence can be shown by evidence of
reasonable reliability.’ ” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
“[I]f the business is . . . new . . . or . . . speculative . . . , damages may be
established with reasonable certainty with the aid of expert testimony, economic
and financial data, market surveys and analyses, business records of similar
enterprises, and the like.” (Meister, supra, 230 Cal.App.4th at p. 397.)
• “In some instances, lost profits may be recovered where plaintiff introduces
evidence of the profits lost by similar businesses operating under similar
conditions. In either case, recovery is limited to net profits.” (Berge v.
International Harvester Co. (1983) 142 Cal.App.3d 152, 161–162 [190 Cal.Rptr.
815], internal citations omitted.)
• “Even in cases of unestablished businesses, while a plaintiff may base its lost
profits on the experience of comparable businesses, there is no requirement that
it must do so.” (Orozco, supra, 36 Cal.App.5th at p. 399.)
• “[T]he case law requires reasonable certainty, not absolute certainty, and once
the occurrence of lost profits is established a plaintiff has greater leeway in
establishing the extent of lost profits, particularly if the defendant was shown to
have prevented the relevant data from being collected through its wrongful
behavior.” (Asahi Kasei Pharma Corp., supra, 222 Cal.App.4th at p. 975.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1914
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶¶ 3:66–3:233 (The Rutter Group)
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.12, 52.37 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.27 (Matthew
Bender)
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3903O. Injury to Pet—Costs of Treatment (Economic Damage)
[Insert number, e.g., “15.”] The harm to [name of plaintiff]’s pet [specify
kind of pet, e.g., dog].
To recover damages for injury to [name of plaintiff]’s pet,
[he/she/nonbinary pronoun] must prove the reasonable costs that [he/she/
nonbinary pronoun] incurred for the care and treatment of the pet
because of [name of defendant]’s conduct.
New June 2013
Directions for Use
Give this instruction to recover the expenses of treating a tortious injury to a pet.
Pets are no longer exclusively treated as property with regard to damages. The
general standard for damages to personal property based on market value (see CACI
No. 3903J, Damage to Personal Property (Economic Damage)), is often
inappropriate because pets generally have no value to anyone except the owner.
Therefore, recovery of reasonable medical expenses is allowed. The rule applies
regardless of the tortious cause of injury, including what may be referred to as
veterinary malpractice. (See Martinez v. Robledo (2012) 210 Cal.App.4th 384 [147
Cal.Rptr.3d 921].) CACI No. 3903J may be given if diminution in value is alleged.
Emotional distress damages have been allowed for intentional injury to a pet. (See
Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1606−1608 [146 Cal.Rptr.3d 585]
[claim for trespass to chattels]; see also CACI No. 2101, Trespass to
Chattels—Essential Factual Elements.) CACI No. 3905A, Physical Pain, Mental
Suffering, and Emotional Distress (Noneconomic Damage), may also be given.
Sources and Authority
• “There can be little doubt that most pets have minimal to no market value,
particularly elderly pets. . . . [W]hile people typically place substantial value on
their own animal companions, as evidenced by the large sums of money spent
on food, medical care, toys, boarding and grooming, etc., there is generally no
market for other people’s pets.” (Martinez, supra, 210 Cal.App.4th at p. 390,
original italics.)
• “[T]he determination of a pet’s value cannot be made solely by looking to the
marketplace. If the rule were otherwise, an injured animal’s owner would bear
most or all of the costs for the medical care required to treat the injury caused
by a tortfeasor, while the tortfeasor’s liability for such costs would in most cases
be minimal, no matter how horrific the wrongdoer’s conduct or how gross the
negligence of a veterinarian or other animal professional. [¶] Moreover, allowing
a pet owner to recover the reasonable costs of the care and treatment of an
injured pet reflects the basic purpose of tort law, which is to make plaintiffs
whole, or to approximate wholeness to the greatest extent judicially possible.”
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(Martinez, supra, 210 Cal.App.4th at p. 390.)
• “In this case, plaintiff is not plucking a number out of the air for the sentimental
value of damaged property; he seeks to present evidence of costs incurred for
[the cat]’s care and treatment by virtue of the shooting—a ‘rational way’ of
demonstrating a measure of damages apart from the cat’s market value. That
evidence is admissible as proof of plaintiff’s compensable damages, and the trial
court erred in granting the motions to exclude it. Plaintiff is entitled to have a
jury determine whether the amounts he expended for [the cat]’s care because of
the shooting were reasonable.” (Kimes v. Grosser (2011) 195 Cal.App.4th 1556,
1561–1562 [126 Cal.Rptr.3d 581], internal citations omitted.)
• “Plaintiff is not seeking loss of companionship, unique noneconomic value, or
the emotional value of the cat, but rather the costs incurred as a result of the
shooting.” (Kimes, supra, 195 Cal.App.4th at p. 1560, fn. 3.)
• “We recognize the love and loyalty a dog provides creates a strong emotional
bond between an owner and his or her dog. But given California law does not
allow parents to recover for the loss of companionship of their children, we are
constrained not to allow a pet owner to recover for loss of the companionship of
a pet.” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1519–1520 [97
Cal.Rptr.3d 555].)
• “We believe good cause exists to allow the recovery of damages for emotional
distress under the circumstances of this case. In the early case of Johnson v.
McConnell, supra, 80 Cal. 545, the court noted ‘while it has been said that
[dogs] have nearly always been held “to be entitled to less regard and protection
than more harmless domestic animals,” it is equally true that there are no other
domestic animals to which the owner or his family can become more strongly
attached, or the loss of which will be more keenly felt.’ ” (Plotnik, supra, 208
Cal.App.4th at p. 1607, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1902
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:220 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expenses and
Economic Loss, § 52.33 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.15 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.192 (Matthew
Bender)
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3903P. Damages From Employer for Wrongful Discharge
(Economic Damage)
[Insert number, e.g., “3.”] Past and future lost earnings.
If you find that [name of defendant] [constructively] discharged [name of
plaintiff] in violation of [specify, e.g., public policy and the Fair Employment
and Housing Act], then you must decide the amount of past and future
lost earnings that [name of plaintiff] has proven [he/she/nonbinary
pronoun] is entitled to recover, if any. To make that decision, you must:
1. Decide the amount that [name of plaintiff] would have earned up
to today, including any benefits and pay increases; and
2. Add the present cash value of any future wages and benefits that
[he/she/nonbinary pronoun] would have earned for the length of
time the employment with [name of defendant] was reasonably
certain to continue.
In determining the period that [name of plaintiff]’s employment was
reasonably certain to have continued, you should consider such things
as:
(a) [Name of plaintiff]’s age, work performance, and intent
regarding continuing employment with [name of defendant];
(b) [Name of defendant]’s prospects for continuing the operations
involving [name of plaintiff]; and
(c) Any other factor that bears on how long [name of plaintiff]
would have continued to work.
New September 2003; Revised and Renumbered from CACI No. 2433 November
2018
Directions for Use
Give this instruction for any claim in which the plaintiff seeks to recover damages
for past and future lost earnings from an employer for a wrongful termination of
employment, for example in violation of public policy (see CACI No. 2400 et seq.)
or under the Fair Employment and Housing Act (see CACI No. 2500 et seq.)
Include “constructively” in the opening paragraph if the plaintiff alleges constructive
discharge instead of an actual discharge. (See CACI No. 2510, “Constructive
Discharge” Explained.)
This instruction should be followed by CACI No. 3963, Affırmative
Defense—Employee’s Duty to Mitigate Damages, if the employee’s duty to mitigate
damages is at issue. Also give CACI No. 3904A, Present Cash Value, and CACI
No. 3904B, Use of Present-Value Tables.
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Other types of tort damages may be available to a plaintiff. For an instruction on
emotional distress damages, see CACI No. 3905A, Physical Pain, Mental Suffering,
and Emotional Distress (Noneconomic Damage). See punitive damages instructions
in the Damages series (CACI No. 3940 et seq.).
Sources and Authority
• Standard for Punitive Damages. Civil Code section 3294(a).
• Employer Liability for Punitive Damages. Civil Code section 3294(b).
• A tortious termination subjects the employer “ ‘to liability for compensatory and
punitive damages under normal tort principles.’ ” (Gantt v. Sentry Insurance
(1992) 1 Cal.4th 1083, 1101 [4 Cal.Rptr.2d 874, 824 P.2d 680], internal citation
omitted.)
• “The general rule is that the measure of recovery by a wrongfully discharged
employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment.” (Parker v.
Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737,
474 P.2d 689], internal citations omitted; see Smith v. Brown-Forman Distillers
Corp. (1987) 196 Cal.App.3d 503, 518 [241 Cal.Rptr. 916].)
• “A plaintiff may recover for detriment reasonably certain to result in the future.
While there is no clearly established definition of ‘reasonable certainty,’ evidence
of future detriment has been held sufficient based on expert medical opinion
which considered the plaintiff’s particular circumstances and the expert’s
experience with similar cases.” (Bihun v. AT&T Information Systems, Inc. (1993)
13 Cal.App.4th 976, 995 [16 Cal.Rptr.2d 787], internal citations omitted,
disapproved of on another ground in Lakin v. Watkins Associated Industries
(1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)
• “[I]t is our view that in an action for wrongful discharge, and pursuant to the
present day concept of employer-employee relations, the term ‘wages’ should be
deemed to include not only the periodic monetary earnings of the employe (sic)
but also the other benefits to which he is entitled as a part of his compensation.”
(Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463 P.2d
426].)
• In determining the period that plaintiff’s employment was reasonably certain to
have continued, the trial court took into consideration plaintiff’s “ ‘physical
condition, his age, his propensity for hard work, his expertise in managing
defendants’ offices, the profit history of his operation, [and] the foreseeability of
the continued future demand for tax return service to small taxpayers . . . .’ ”
(Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr.
169].)
• In adding subdivision (b) to section 3294 in 1980, “[t]he drafters’ goals were to
avoid imposing punitive damages on employers who were merely negligent or
reckless and to distinguish ordinary respondeat superior liability from corporate
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liability for punitive damages.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563,
572 [88 Cal.Rptr.2d 19, 981 P.2d 944], see Weeks v. Baker & McKenzie (1998)
63 Cal.App.4th 1128, 1150–1151 [74 Cal.Rptr.2d 510].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B, Contract
Damages, ¶¶ 17:237, 17:362, 17:365 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.64–5.67
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.18, 249.50–249.55, 249.80–249.81, 249.90
(Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.41–100.59B (Matthew Bender)
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3903Q. Survival Damages (Economic Damage) (Code Civ. Proc.,
§ 377.34)
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant] for the death of [name of
decedent], you must also decide the amount of damages that [name of
decedent] sustained before death and that [he/she/nonbinary pronoun]
would have been entitled to recover because of [name of defendant]’s
conduct[, including any [penalties/ [or] punitive damages] as explained in
the other instructions that I will give you].
[Name of plaintiff] may recover the following damages:
[1. The reasonable cost of reasonably necessary medical care that
[name of decedent] received;]
[2. The amount of [income/earnings/salary/wages] that
[he/she/nonbinary pronoun] lost before death;]
[3. The reasonable cost of health care services that [name of decedent]
would have provided to [name of family member] before [name of
decedent]’s death;]
[4. [Specify other recoverable economic damage.]]
You may not award damages for any loss for [name of decedent]’s
shortened life span attributable to [his/her/nonbinary pronoun] death.
New May 2019; Revised November 2019, May 2020
Directions for Use
Give this instruction if a deceased person’s estate claims survival damages for harm
that the decedent incurred in the decedent’s lifetime. This instruction addresses
survival damages in a claim against a defendant who is alleged to have caused the
decedent’s death. However, survival damages are available for any claim incurred
while alive, not just a claim based on the decedent’s death. (See County of Los
Angeles v. Superior Court (1999) 21 Cal.4th 292, 294 [87 Cal.Rptr.2d 441, 981 P.2d
68].) In a case that does not involve conduct that caused the decedent’s death,
modify the instruction to include the damages recoverable under the particular claim
rather than the damages attributable to the death.
Survival damages can include punitive damages and penalties. (See Code Civ. Proc.,
§ 377.34.) Include the bracketed language in the last sentence of the opening
paragraph if either or both are sought. If punitive damages are claimed, give the
appropriate instruction from CACI Nos. 3940–3949.
If items 1 and 2 are given, do not also give CACI No. 3903A, Medical
Expenses—Past and Future (Economic Damages), and CACI No. 3903C, Past and
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Future Lost Earnings (Economic Damages), as the future damages parts of those
instructions are not applicable. Other 3903 group instructions may be omitted if
their items of damages are included under item 3 and must not be given if they
include future damages.
Damages for pain, suffering, or disfigurement are not recoverable in a survival
action except at times in an elder abuse case. (Code Civ. Proc., § 377.34; see Quiroz
v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1265 [45 Cal.Rptr.3d 222]; see
also instructions in the 3100 Series, Elder Abuse and Dependent Adult Civil
Protection Act.)
Sources and Authority
• Survival Damages. Code of Civil Procedure section 377.34.
• “In California, ‘a cause of action for or against a person is not lost by reason of
the person’s death’ and no ‘pending action . . . abate[s] by the death of a party
. . .’ In a survival action by the deceased plaintiff’s estate, the damages
recoverable expressly exclude ‘damages for pain, suffering, or disfigurement.’
They do, however, include all ‘loss or damage that the decedent sustained or
incurred before death, including any penalties or punitive or exemplary
damages.’ Thus, under California’s survival law, an estate can recover not only
the deceased plaintiff’s lost wages, medical expenses, and any other pecuniary
losses incurred before death, but also punitive or exemplary damages.” (County
of Los Angeles, supra, 21 Cal.4th at pp. 303–304, internal citations omitted.)
• “The first category consists of the reasonable value of nursing and other services
that Decedent would have provided to his wife prior to his death, but was unable
to provide due to his illness (replacement care). Again, [defendant] does not
contest the recoverability of such damages here. Nor did it below. Such damages
are recoverable. (See . . . CACI No. 3903E [“Loss of Ability to Provide
Household Services (Economic Damage)”].)” (Williams v. The Pep Boys Manny
Moe & Jack of California (2018) 27 Cal.App.5th 225, 238 [238 Cal.Rptr.3d
809], internal citations omitted.)
• “The second category requires more discussion. That consists of the reasonable
value of 24-hour nursing care that Decedent would have provided to his wife
after his death and before she passed away in 2014, nearly four years later. As
appellants explain this claim, ‘to the extent his children were forced to provide
gratuitous home health care and other household services to [wife] up to the
time of her death, [Decedent’s] estate is also entitled to recover those costs as
damages since he had been providing those services for his wife before he died.’
. . . The parties disagree as to whether such damages are recoverable.
Appellants contend that they are properly recovered as ‘ “lost years” damages,’
representing economic losses the decedent incurred during the period by which
his life expectancy was shortened; [defendant], in contrast, contends that they are
not recoverable because they were not ‘sustained or incurred before death,’ as
required by section 377.34. We conclude that [defendant] has the better
argument.” (Williams, supra, 27 Cal.App.5th at p. 238, original italics.)
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• “By expressly authorizing recovery of only penalties or punitive damages that
the decedent would have been entitled to recover had the decedent lived, the
Legislature necessarily implied that other categories of damages that the
decedent would have been entitled to recover had the decedent lived would not
be recoverable in a survival action.” (Williams, supra, 27 Cal.App.5th at p. 239,
original italics.)
• “In survival actions, . . . damages are narrowly limited to ‘the loss or damage
that the decedent sustained or incurred before death’, which by definition
excludes future damages. For a trial court to award ‘ “lost years” damages’ in a
survival action—that is, damages for ‘loss of future economic benefits that [a
decedent] would have earned during the period by which his life expectancy was
shortened’—would collapse this fundamental distinction and render the plain
language of 377.34 meaningless.” (Williams, supra, 27 Cal.App.5th at p. 240,
original italics, internal citations omitted.)
• “The same conclusion [that they are not recoverable in a survival action] would
seem to follow as to the trial court’s award of damages for the value of
Decedent’s lost pension benefits and Social Security benefits.” (Williams, supra,
27 Cal.App.5th at p. 240, fn. 21.)
• “[T]here is at least one exception to the rule that damages for the decedent’s
predeath pain and suffering are not recoverable in a survivor action. Such
damages are expressly recoverable in a survivor action under the Elder Abuse
Act if certain conditions are met.” (Quiroz, supra, 140 Cal.App.4th at p. 1265.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 27
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, § 55.21
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 181, Death and Survival Actions,
§ 181.45 (Matthew Bender)
6 California Points and Authorities, Ch. 66, Death and Survival Actions, § 66.63 et
seq. (Matthew Bender)
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3904A. Present Cash Value
[Name of defendant] claims that [name of plaintiff]’s future [economic]
damages for [loss of earnings/future medical expenses/lost profits/[insert
other economic damages]], if any, should be reduced to present cash
value. This is because money received now will, through investment,
grow to a larger amount in the future. Present cash value is the amount
of money that, if reasonably invested today, will provide [name of
plaintiff] with the amount of [his/her/nonbinary pronoun/its] future
damages.
[[Name of defendant] must prove, through expert testimony, the present
cash value of [name of plaintiff]’s future [economic] damages. It is up to
you to decide the present cash value of [name of plaintiff]’s future
[economic] damages in light of all the evidence presented by the parties.]
[If you decide that [name of plaintiff]’s harm includes future [economic]
damages for [loss of earnings/future medical expenses/lost profits/[insert
other economic damages]], then you must reduce the amount of those
future damages to their present cash value. You must [use the interest
rate of percent/ [and] [specify other stipulated information]] as
agreed to by the parties in determining the present cash value of future
[economic] damages.]
New September 2003; Revised April 2008; Revised and renumbered from former
CACI No. 3904 December 2010; Revised June 2013, May 2020, May 2021
Directions for Use
Give this instruction if future economic damages are sought and there is evidence
from which a reduction to present value can be made. Include “economic” if future
noneconomic damages are also sought. Future noneconomic damages are not
reduced to present cash value because the amount that the jury is to award should
already encompass the idea of today’s dollars for tomorrow’s loss. (See Salgado v.
County of Los Angeles (1998) 19 Cal.4th 629, 646–647 [80 Cal.Rptr.2d 46, 967 P.2d
585]; CACI No. 3905A, Physical Pain, Mental Suffering, and Emotional Distress
(Noneconomic Damage).)
The defendant bears the burden of presenting expert evidence of an appropriate
present value calculation, including the appropriate discount rate, to enable the fact
finder to make a rational determination on the issue. (Lewis v. Ukran (2019) 36
Cal.App.5th 886, 896 [248 Cal.Rptr.3d 839].) Unless there is a stipulation, expert
testimony is required to accurately establish present values for future economic
losses. (Id.)
Give the last bracketed paragraph if there has been a stipulation as to the interest
rate to use or any other facts related to present cash value, and omit the second
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paragraph to account for the parties’ stipulation.
The parties may stipulate to use present-value tables to assist the jury in making its
determination of present cash value. Tables, worksheets, and an instruction on how
to use them are provided in CACI No. 3904B, Use of Present-Value Tables.
Sources and Authority
• “The present value of a gross award of future damages is that sum of money
prudently invested at the time of judgment which will return, over the period the
future damages are incurred, the gross amount of the award. ‘The concept of
present value recognizes that money received after a given period is worth less
than the same amount received today. This is the case in part because money
received today can be used to generate additional value in the interim.’ The
present value of an award of future damages will vary depending on the gross
amount of the award, and the timing and amount of the individual payments.”
(Holt v. Regents of the University of California (1999) 73 Cal.App.4th 871, 878
[86 Cal.Rptr.2d 752], internal citations omitted.)
• “[I]n a contested case, a party (typically a defendant) seeking to reduce an award
of future damages to present value bears the burden of proving an appropriate
method of doing so, including an appropriate discount rate. A party (typically a
plaintiff) who seeks an upward adjustment of a future damages award to account
for inflation bears the burden of proving an appropriate method of doing so,
including an appropriate inflation rate. This aligns the burdens of proof with the
parties’ respective economic interests. A trier of fact should not reduce damages
to present value, or adjust for inflation, absent such evidence or a stipulation of
the parties.” (Lewis, supra, 36 Cal.App.5th at p. 889.)
• “[W]e hold a defendant seeking reduction to present value of a sum awarded for
future damages has the burden of presenting expert evidence of an appropriate
present value calculation, including the appropriate discount rate, to enable the
fact finder to make a rational determination on the issue.” (Lewis, supra, 36
Cal.App.5th at p. 896.)
• “Exact actuarial computation should result in a lump-sum, present-value award
which if prudently invested will provide the beneficiaries with an investment
return allowing them to regularly withdraw matching support money so that, by
reinvesting the surplus earnings during the earlier years of the expected support
period, they may maintain the anticipated future support level throughout the
period and, upon the last withdrawal, have depleted both principal and interest.”
(Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 521 [196
Cal.Rptr. 82].)
• “[I]t is not a violation of the plaintiff’s jury trial right for the court to submit
only the issue of the gross amount of future economic damages to the jury, with
the timing of periodic payments—and hence their present value—to be set by
the court in the exercise of its sound discretion.” (Salgado, supra, 19 Cal.4th at
p. 649, internal citation omitted.)
• “Neither party introduced any evidence of compounding or discounting factors,
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CACI No. 3904A DAMAGES
including how to calculate an appropriate rate of return throughout the relevant
years. Under such circumstances, the ‘jury would have been put to sheer
speculation in determining . . . “the present sum of money which . . . will pay
to the plaintiff . . . the equivalent of his [future economic] loss . . . .” ’ ”
(Schiernbeck v. Haight (1992) 7 Cal.App.4th 869, 877 [9 Cal.Rptr.2d 716],
internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1719
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.96
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.21–52.22 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
1 California Civil Practice: Torts § 5:22 (Thomson Reuters)
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3904B. Use of Present-Value Tables
[For Table A:]
[Use Worksheet A and Table A to compute the present value of [specify
future damages that can be expressed as a regular dollar amount over a
determinable period of time, e.g., lost future income or the cost of permanent
medical care].
1. Determine the amount of [name of plaintiff]’s future loss for [e.g.,
lost income] each year. Enter this amount into Worksheet A, Step
1.
2. Determine the number of years that this loss will continue. Enter
this amount into Worksheet A, Step 2.
3. Select the interest rate that you decide [based on the expert
testimony that you have heard] represents the most likely rate of
return on money invested today over that period of years. Enter
this amount into Worksheet A, Step 3.
4. Select the appropriate Present Value Factor from Table A. To
locate this factor, use the Number of Years from Step 2 on the
worksheet and the Interest Rate from Step 3 on the worksheet
and find the number that is the intersection of the Interest Rate
column and Number of Years row. (For example, if the number
of years is 15 and the interest rate is 10 percent, the
corresponding Present Value Factor is 7.61.) Enter the factor into
Worksheet A, Step 4.
5. Multiply the amount of [name of plaintiff]’s annual future loss
from Step 1 by the factor from Step 4. This is the present value
of [name of plaintiff]’s total future loss for [e.g., lost income]. Enter
this amount into Worksheet A, Step 5.
WORKSHEET A
Step 1: Repeating identical annual
dollar amount of future loss: $
Step 2: Number of years that this
loss will continue:
Step 3: Interest rate that represents
a reasonable rate of return
on money invested today
over that period of years: %
Step 4: Present Value Factor from
Table A:
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CACI No. 3904B DAMAGES
Step 5: Amount from Step 1 times
Factor from Step 4: $
Enter the amount from Step 5 on your verdict form as [name of
plaintiff]’s total future economic loss for [e.g., lost income].]
[For Table B:]
[Use Worksheet B and Table B to compute the present value of [specify
future damages that cannot be expressed as a repeating identical dollar
amount over a determinable period of time, e.g., future surgeries].
1. Determine the future years in which a future loss will occur. In
Column A, starting with the current year, enter each year
through the last year that you determined a future loss will occur.
2. Determine the amount of [name of plaintiff]’s future loss for [e.g.,
future surgeries] for each year that you determine the loss will
occur. Enter these future losses in Column B on the worksheet.
Enter $0 if no future loss occurs in a given year.
3. Select the interest rate that you decide [based on the expert
testimony that you have heard] represents a reasonable rate of
return on money invested today over the number of years
determined in Step 2. Enter this rate in Column C on the
worksheet for each year that future-loss amounts are entered in
Column B.
4. Select the appropriate Present Value Factor from Table B for
each year for which you have determined that a loss will occur.
To locate this factor, use the Number of Years from Column A
on the worksheet and the Interest Rate in Column C on the
worksheet and find the number that is the intersection of the
Interest Rate column and Number of Years row from the table.
(For example, for year 15, if the interest rate is 10 percent, the
corresponding Present Value Factor is 0.239.) Enter the
appropriate Present Value Factors in Column D. For the current
year, the Present Value Factor is 1.000. It is not necessary to
select an interest rate for the current year in Step 3.
5. Multiply the amount in Column B by the factor in Column D for
each year for which you determined that a loss will occur and
enter these amounts in Column E.
6. Add all of the entries in Column E and enter this sum into Total
Present Value of Future Loss.
Enter the amount from Step 6 on your verdict form as [name of
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DAMAGES CACI No. 3904B
plaintiff]’s total future economic loss for [e.g., future surgeries].]
WORKSHEET B
A B C D E
Year Dollar Amount Interest Present Value Present
of Future Loss Rate Factor Value of
Each Year Future Loss
Current year $ Not 1.000 $
(20___) applicable
Year 1 (20___) $ % $
Year 2 (20___) $ % $
Year 3 (20___) $ % $
Year 4 (20___) $ % $
Year 5 (20___) $ % $
Year 6 (20___) $ % $
Year 7 (20___) $ % $
Year 8 (20___) $ % $
Year 9 (20___) $ % $
Year 10 (20___) $ % $
Year 11 (20___) $ % $
Year 12 (20___) $ % $
Year 13 (20___) $ % $
Year 14 (20___) $ % $
Year 15 (20___) $ % $
Year 16 (20___) $ % $
Year 17 (20___) $ % $
Year 18 (20___) $ % $
Year 19 (20___) $ % $
Year 20 (20___) $ % $
Year 21 (20___) $ % $
Year 22 (20___) $ % $
Year 23 (20___) $ % $
Year 24 (20___) $ % $
Year 25 (20___) $ % $
Total Present Value of Future Loss (add all amounts in Column $
E)
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New December 2010
Directions for Use
Give this instruction if one of the accompanying tables is to be given to the jury.
Also give CACI No. 359, Present Cash Value of Future Damages, in a contract
action, or CACI No. 3904A, Present Cash Value, in a tort action.
Use Worksheet A and Table A if future economic loss will occur over multiple years
and the amount of the loss will be the same every year. For example, lost future
income may be capable of being expressed in a fixed annual dollar figure. Similarly,
the cost of future medical care may be reduced to present value under Table A if it
will be a regular amount over a determinable period of time.
Use Worksheet B and Table B in all other instances of future economic loss. In
some cases, it may be necessary to give the jury both worksheets and tables if there
are categories of both regular recurring future economic loss and irregular or
varying loss.
The interest rate to be used in the tables must be established by stipulation or by the
evidence. Expert testimony will usually be required to accurately establish present
values for future economic losses. It would appear that because reduction to present
value benefits the defendant, the defendant bears the burden of proof on the discount
rate. (See Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 613–614 [102 Cal.Rptr. 31]
[no error to refuse instruction on reduction to present value when defendant
presented no evidence].)
Tables should not be used for future noneconomic damages. (See Salgado v. County
of L.A. (1998) 19 Cal.4th 629, 646–647 [80 Cal.Rptr.2d 46, 967 P.2d 585]; CACI
No. 3904A, Present Cash Value.)
Sources and Authority
• “Neither party introduced any evidence of compounding or discounting factors,
including how to calculate an appropriate rate of return throughout the relevant
years. Under such circumstances, the ‘jury would have been put to sheer
speculation in determining . . . “the present sum of money which . . . will pay
to the plaintiff . . . the equivalent of his [future economic] loss . . . .” ’ ”
(Schiernbeck v. Haight (1992) 7 Cal.App.4th 869, 877 [9 Cal.Rptr.2d 716],
internal citations omitted.)
• “[W]e cannot presume that the jurors were unable to make the various
computations without the proffered aid of court and counsel after first reaching
necessary agreement on the various determinables comprising the formula.
Further, defendant’s counsel took a calculated risk in this regard; he produced
neither statistician nor economist to aid his cause in this regard. Too, we have
found no California cases which hold that use of the present table is
indispensable to a proper award of damages for loss of future earning capacity
. . . .” (Howard v. Global Marine, Inc. (1972) 28 Cal.App.3d 809, 816 [105
Cal.Rptr. 50].)
• “The trial court was also correct in refusing the proposed instruction, on its
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DAMAGES CACI No. 3904B
merits, for lack of evidence which would have supported a jury finding of the
‘present cash value’ of any sum assessed as the value of [plaintiff]’s future
earning capacity . . . . The computation of such ‘present cash value’ is ‘difficult
and confusing . . . to present to a jury’ and, in the pertinent cases, the
computation was apparently reached by the respective juries upon the basis of
real evidence. Absent such evidence in the present case (and there was none),
this jury would have been put to sheer speculation in determining (as the
proposed instruction would have had it do) ‘the present sum of money which,
together with interest thereon when invested so as to yield the highest rate of
interest consistent with reasonable security, will pay to the plaintiff . . . the
equivalent of his loss of earning capacity . . . in the future . . . .’ The
instruction would have required the jury to reach this result without the benefit
of evidence or advice as to the complicated factors of compounding and
discounting which the instruction necessarily involved. There are ‘present cash
value’ tables which might have assisted the jury in this regard, if judicially
noticed for instruction purposes, but the proposed instruction included no
reference to them. For these reasons, and on the instruction’s merits, the trial
court did not err in refusing to give it.” (Wilson, supra, 25 Cal.App.3d at pp.
613–614, internal citations omitted.)
• “Anticipated future increases of medical costs may be presented to the jury.
Expert testimony may be used with regard to a ‘subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier
of fact; . . .’ Future medical expenses are such a subject. Testimony by actuaries
is frequently used to show discount rates and the present value of future benefits.
[¶] The expert testimony was substantial evidence supporting the portion of the
award relating to the future cost of attendant care. The substantial evidence test
is applied in view of the entire record; other than a vigorous cross-examination
of plaintiffs’ expert, appellants presented no evidence on the cost of attendant
care. The elaborate economic arguments presented in the briefs of appellants and
amicus curiae might better have been presented to the jury in opposition to
respondents’ expert testimony.” (Niles v. City of San Rafael (1974) 42
Cal.App.3d 230, 243 [116 Cal.Rptr. 733], internal citations omitted.)
• “Appellants claim that the 5 percent discount rate presented by the expert was
too low. A discount rate, similar to an interest rate, is used to determine the
present value of future expenses. The expert, in arriving at a 5 percent rate, used
commercial investment studies pertaining to the riskiness of corporate bonds,
charts compiled by the Federal Reserve System showing interest yields on
various bonds since 1920, and tables published by the United States Savings and
Loan League showing interest rates on savings accounts since 1929. He took
into account the need for reasonable security of investment over the period of
[plaintiff]’s life. All of this was apparently within the competence of the expert.”
(Niles, supra, 42 Cal.App.3d at pp. 243–244.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1719
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California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.96
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.21, 52.22 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.40 et seq.
(Matthew Bender)
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3905. Items of Noneconomic Damage
The following are the specific items of noneconomic damages claimed by
[name of plaintiff]:
[Insert applicable instructions on items of noneconomic damage.]
New September 2003
Directions for Use
This instruction may not be needed in every case. For example, if the plaintiff is not
claiming any economic damages, there is no need to define the claimed damages as
“noneconomic.” If this instruction is used, it should be followed by applicable
instructions concerning the items of noneconomic damage claimed by the plaintiff.
These instructions should be inserted into this instruction as sequentially numbered
items.
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 159, 169, 170
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.5
4 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.04
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts § 5:4 (Thomson Reuters)
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3905A. Physical Pain, Mental Suffering, and Emotional Distress
(Noneconomic Damage)
[Insert number, e.g., “1.”] [Past] [and] [future] [physical pain/mental
suffering/loss of enjoyment of life/disfigurement/physical impairment/
inconvenience/grief/anxiety/humiliation/emotional distress/[insert other
damages]].
No fixed standard exists for deciding the amount of these noneconomic
damages. You must use your judgment to decide a reasonable amount
based on the evidence and your common sense.
[To recover for future [insert item of pain and suffering], [name of plaintiff]
must prove that [he/she/nonbinary pronoun] is reasonably certain to suffer
that harm.
For future [insert item of pain and suffering], determine the amount in
current dollars paid at the time of judgment that will compensate [name
of plaintiff] for future [insert item of pain and suffering]. [This amount of
noneconomic damages should not be further reduced to present cash
value because that reduction should only be performed with respect to
economic damages.]]
New September 2003; Revised April 2008, December 2009, December 2011
Directions for Use
Insert the bracketed terms that best describe the damages claimed by the plaintiff.
If future noneconomic damages are sought, include the last two paragraphs. Do not
instruct the jury to further reduce the award to present cash value. (See CACI No.
3904A, Present Cash Value, and CACI No. 3904B, Use of Present-Value Tables.)
The amount that the jury is to award should already encompass the idea of today’s
dollars for tomorrow’s loss. (See Salgado v. County of L.A. (1998) 19 Cal.4th 629,
646–647 [80 Cal.Rptr.2d 46, 967 P.2d 585].) Include the last sentence only if the
plaintiff is claiming both future economic and noneconomic damages.
Sources and Authority
• “One of the most difficult tasks imposed on a fact finder is to determine the
amount of money the plaintiff is to be awarded as compensation for pain and
suffering. The inquiry is inherently subjective and not easily amenable to
concrete measurement.” (Pearl v. City of Los Angeles (2019) 36 Cal.App.5th
475, 491 [248 Cal.Rptr.3d 508], internal citations omitted.)
• “In general, courts have not attempted to draw distinctions between the elements
of ‘pain’ on the one hand, and ‘suffering’ on the other; rather, the unitary
concept of ‘pain and suffering’ has served as a convenient label under which a
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plaintiff may recover not only for physical pain but for fright, nervousness, grief,
anxiety, worry, mortification, shock, humiliation, indignity, embarrassment,
apprehension, terror or ordeal. Admittedly these terms refer to subjective states,
representing a detriment which can be translated into monetary loss only with
great difficulty. But the detriment, nevertheless, is a genuine one that requires
compensation, and the issue generally must be resolved by the ‘impartial
conscience and judgment of jurors who may be expected to act reasonably,
intelligently and in harmony with the evidence.’ ” (Capelouto v. Kaiser
Foundation Hospitals (1972) 7 Cal.3d 889, 892–893 [103 Cal.Rptr. 856, 500
P.2d 880], internal citations and footnote omitted.)
• “[N]oneconomic damages do not consist of only emotional distress and pain and
suffering. They also consist of such items as invasion of a person’s bodily
integrity (i.e., the fact of the injury itself), disfigurement, disability, impaired
enjoyment of life, susceptibility to future harm or injury, and a shortened life
expectancy.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300 [213
Cal.Rptr.3d 82].)
• “ ‘ “ ‘[T]here is no fixed or absolute standard by which to compute the monetary
value of emotional distress,’ ” ’ and a ‘ “jury is entrusted with vast discretion in
determining the amount of damages to be awarded . . . .” [Citation.]’ ” (Plotnik
v. Meihaus (2012) 208 Cal.App.4th 1590, 1602 [146 Cal.Rptr.3d 585].)
• “Compensatory damages may be awarded for bodily harm without proof of
pecuniary loss. The fact that there is no market price calculus available to
measure the amount of appropriate compensation does not render such a tortious
injury noncompensable. ‘For harm to body, feelings or reputation, compensatory
damages reasonably proportioned to the intensity and duration of the harm can
be awarded without proof of amount other than evidence of the nature of the
harm. There is no direct correspondence between money and harm to the body,
feelings or reputation. There is no market price for a scar or for loss of hearing
since the damages are not measured by the amount for which one would be
willing to suffer the harm. The discretion of the judge or jury determines the
amount of recovery, the only standard being such an amount as a reasonable
person would estimate as fair compensation.’ ” (Duarte v. Zachariah (1994) 22
Cal.App.4th 1652, 1664–1665 [28 Cal.Rptr.2d 88], internal citations omitted.)
• “The general rule of damages in tort is that the injured party may recover for all
detriment caused whether it could have been anticipated or not. In accordance
with the general rule, it is settled in this state that mental suffering constitutes an
aggravation of damages when it naturally ensues from the act complained of,
and in this connection mental suffering includes nervousness, grief, anxiety,
worry, shock, humiliation and indignity as well as physical pain.” (Crisci v. The
Security Insurance Co. of New Haven, Connecticut (1967) 66 Cal.2d 425, 433
[58 Cal.Rptr. 13, 426 P.2d 173], internal citations omitted.)
• “We note that there may be certain cases where testimony of an expert witness
would be necessary to support all or part of an emotional distress damages
claim. For example, expert testimony would be required to the extent a plaintiff’s
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damages are alleged to have arisen from a psychiatric or psychological disorder
caused or made worse by a defendant’s actions and the subject matter is beyond
common experience. We are not addressing such a case here. In this case, the
emotional distress damages arose from feelings of anxiety, pressure, betrayal,
shock, and fear of others to which [plaintiff] herself could and did testify. Expert
testimony was not required.” (Knutson v. Foster (2018) 25 Cal.App.5th 1075,
1099 [236 Cal.Rptr.3d 473].)
• “The law in this state is that the testimony of a single person, including the
plaintiff, may be sufficient to support an award of emotional distress damages.”
(Knutson, supra, 25 Cal.App.5th at p. 1096, original italics.)
• “[W]here a plaintiff has undergone surgery in which a herniated disc is removed
and a metallic plate inserted, and the jury has expressly found that defendant’s
negligence was a cause of plaintiff’s injury, the failure to award any damages for
pain and suffering results in a damage award that is inadequate as a matter of
law.” (Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 933 [64
Cal.Rptr.3d 920].)
• “ ‘To entitle a plaintiff to recover present damages for apprehended future
consequences, there must be evidence to show such a degree of probability of
their occurring as amounts to a reasonable certainty that they will result from the
original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d
576, 588 [81 P.2d 894], internal citation omitted.)
• “To avoid confusion regarding the jury’s task in future cases, we conclude that
when future noneconomic damages are sought, the jury should be instructed
expressly that they are to assume that an award of future damages is a present
value sum, i.e., they are to determine the amount in current dollars paid at the
time of judgment that will compensate a plaintiff for future pain and suffering.
In the absence of such instruction, unless the record clearly establishes
otherwise, awards of future damages will be considered to be stated in terms of
their present or current value.” (Salgado, supra, 19 Cal.4th at pp. 646–647.)
• “[R]ecovery for emotional distress caused by injury to property is permitted only
where there is a preexisting relationship between the parties or an intentional
tort.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203
[147 Cal.Rptr.3d 41].)
• “[W]e uphold both the economic and emotional distress damages plaintiffs
recovered for trespass to personal property arising from [defendant]’s act of
intentionally striking [plaintiff’s dog] with a bat.” (Plotnik, supra, 208
Cal.App.4th at p. 1608 [under claim for trespass to chattels].)
• “Furthermore, ‘the negligent infliction of emotional distress—anxiety, worry,
discomfort—is compensable without physical injury in cases involving the
tortious interference with property rights [citations].’ Thus, if [defendant]’s
failure to repair the premises constitutes a tort grounded on negligence, appellant
is entitled to prove his damages for emotional distress because the failure to
repair must be deemed to constitute an injury to his tenancy interest (right to
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habitable premises), which is a species of property.” (Erlach v. Sierra Asset
Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 [173 Cal.Rptr.3d 159],
original italics, internal citation omitted.)
• “[U]nless the defendant has assumed a duty to plaintiff in which the emotional
condition of the plaintiff is an object, recovery is available only if the emotional
distress arises out of the defendant’s breach of some other legal duty and the
emotional distress is proximately caused by that breach of duty. Even then, with
rare exceptions, a breach of the duty must threaten physical injury, not simply
damage to property or financial interests.” (Wilson v. Southern California Edison
Co. (2015) 234 Cal.App.4th 123, 156 [184 Cal.Rptr.3d 26].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1850–1854
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:140 et seq. (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Bodily Injury, §§ 1.68–1.74
4 Levy et al., California Torts, Ch. 51, Pain and Suffering, §§ 51.01–51.14
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.145 et seq.
(Matthew Bender)
California Civil Practice: Torts § 5:10 (Thomson Reuters)
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3906. Lost Earnings and Lost Earning Capacity—Jurors Not to
Reduce Damages on Basis of Race, Ethnicity, or Gender
(Economic Damage)
In determining a reasonable amount of [name of plaintiff]’s [lost earnings/
[and] lost ability to earn money], you must not use race, ethnicity, or
gender as a basis for reducing [name of plaintiff]’s [lost earnings/ [and]
lost ability to earn money].
New November 2020
Directions for Use
Give this instruction in cases in which the plaintiff seeks damages for lost earnings
and/or lost earning capacity from personal injury or wrongful death. Depending on
the circumstances, select the type(s) of damages at issue: lost earnings, lost ability
to earn money, or both. If this instruction is used, it should follow the applicable
instruction(s) in the Items of Economic Damage series. See CACI No. 3903C, Past
and Future Lost Earnings (Economic Damage), and CACI No. 3903D, Lost Earning
Capacity (Economic Damage).
Sources and Authority
• Estimations, Measures, or Calculations of Past, Present, or Future Damages.
Civil Code section 3361.
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1843, 1871
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-A,
Verdicts, ¶ 17:13 (The Rutter Group)
4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expense and Economic
Loss, § 52.11 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, §§ 177.45, 177.46
(Matthew Bender)
3907–3919. Reserved for Future Use
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3920. Loss of Consortium (Noneconomic Damage)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] has been
harmed by the injury to [his/her/nonbinary pronoun] [husband/wife]. If
you decide that [name of injured spouse] has proved [his/her/nonbinary
pronoun] claim against [name of defendant], you also must decide how
much money, if any, will reasonably compensate [name of plaintiff] for
loss of [his/her/nonbinary pronoun] [husband/wife]’s companionship and
services, including:
1. The loss of love, companionship, comfort, care, assistance,
protection, affection, society, and moral support; and
2. The loss of the enjoyment of sexual relations [or the ability to
have children].
[[Name of plaintiff] may recover for harm [he/she/nonbinary pronoun]
proves [he/she/nonbinary pronoun] has suffered to date and for harm [he/
she/nonbinary pronoun] is reasonably certain to suffer in the future.
For future harm, determine the amount in current dollars paid at the
time of judgment that will compensate [name of plaintiff] for that harm.
This amount of noneconomic damages should not be further reduced to
present cash value because that reduction should only be performed with
respect to economic damages.]
No fixed standard exists for deciding the amount of these damages. You
must use your judgment to decide a reasonable amount based on the
evidence and your common sense.
Do not include in your award any compensation for the following:
1. The loss of financial support from [name of injured spouse];
2. Personal services, such as nursing, that [name of plaintiff] has
provided or will provide to [name of injured spouse];
3. Any loss of earnings that [name of plaintiff] has suffered by giving
up employment to take care of [name of injured spouse]; or
4. The cost of obtaining domestic household services to replace
services that would have been performed by [name of injured
spouse].
New September 2003; Revised December 2010
Directions for Use
Loss of consortium is considered a noneconomic damages item under Proposition
51. (Civ. Code, § 1431.2(b)(2).) Loss of future consortium is recoverable, including
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loss of consortium because of reduced life expectancy. (See Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 799–800 [108 Cal.Rptr.3d 806, 230 P.3d 342].) In
such a case, this instruction may need to be modified.
Give the second and third paragraphs if recovery for loss of future consortium is
sought. Future noneconomic damages should not be reduced to present value. (See
Salgado v. County of L.A. (1998) 19 Cal.4th 629, 646–647 [80 Cal.Rptr.2d 46, 967
P.2d 585].)
Sources and Authority
• Noneconomic Damages for Loss of Consortium. Civil Code section 1431.2(b)(2).
• “We . . . declare that in California each spouse has a cause of action for loss of
consortium, as defined herein, caused by a negligent or intentional injury to the
other spouse by a third party.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12
Cal.3d 382, 408 [115 Cal.Rptr. 765, 525 P.2d 669].)
• “There are four elements to a cause of action for loss of consortium: ‘(1) a valid
and lawful marriage between the plaintiff and the person injured at the time of
the injury; [¶] (2) a tortious injury to the plaintiff’s spouse; [¶] (3) loss of
consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused
by the defendant’s act.’ ” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th
921, 927 [142 Cal.Rptr.3d 230].)
• “The concept of consortium includes not only loss of support or services; it also
embraces such elements as love, companionship, comfort, affection, society,
sexual relations, the moral support each spouse gives the other through the
triumph and despair of life, and the deprivation of a spouse’s physical assistance
in operating and maintaining the family home.” (Ledger v. Tippitt (1985) 164
Cal.App.3d 625, 633 [210 Cal.Rptr. 814], disapproved of on other grounds in
Elden v. Sheldon (1988) 46 Cal.3d 267, 277 [250 Cal.Rptr. 254, 758 P.2d 582].)
• “Since he has no cause of action in tort his spouse has no cause of action for
loss of consortium.” (Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067
[272 Cal.Rptr. 250].)
• “The California Supreme Court in Rodriguez, supra, 12 Cal.3d at page 409,
expressly recognized the right to recover damages for the ‘loss or impairment’ of
the plaintiff’s rights of consortium, and we see no basis to conclude that a loss
of consortium must be so extensive as to be considered complete in order to be
compensable. Instead, a partial loss, or diminution, of consortium is
compensable.” (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App. 4th 1218, 1224
[124 Cal.Rptr.3d 804].)
• “[S]hould [husband] prevail in his own cause of action against these defendants,
he will be entitled to recover, among his medical expenses, the full cost of
whatever home nursing is necessary. To allow [wife] also to recover the value of
her nursing services, however personalized, would therefore constitute double
recovery.” (Rodriguez, supra, 12 Cal.3d at p. 409, internal citations omitted.)
• “For the same reason, [wife] cannot recover for the loss of her earnings and
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earning capacity assertedly incurred when she quit her job in order to furnish
[husband] these same nursing services. To do so would be to allow her to
accomplish indirectly that which we have just held she cannot do directly.”
(Rodriguez, supra, 12 Cal.3d at p. 409.)
• “The deprivation of a husband’s physical assistance in operating and maintaining
the home is a compensable item of loss of consortium.” (Rodriguez, supra, 12
Cal.3d at p. 409, fn. 31, internal citations omitted.)
• “Although the trial court labeled the damages awarded [plaintiff] as being for
‘loss of consortium’ (a noneconomic damages item under Proposition 51), much
of the testimony at trial actually involved the ‘costs of obtaining substitute
domestic services’ on her behalf (an economic damage item in the statute).”
(Kellogg v. Asbestos Corp. Ltd. (1996) 41 Cal.App.4th 1397, 1408 [49
Cal.Rptr.2d 256].)
• “Whether the degree of harm suffered by the plaintiff’s spouse is sufficiently
severe to give rise to a cause of action for loss of consortium is a matter of
proof. When the injury is emotional rather than physical, the plaintiff may have
a more difficult task in proving negligence, causation, and the requisite degree of
harm; but these are questions for the jury, as in all litigation for loss of
consortium. In Rodriguez we acknowledged that the loss is ‘principally a form of
mental suffering,’ but nevertheless declared our faith in the ability of the jury to
exercise sound judgment in fixing compensation. We reaffirm that faith today.”
(Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 933 [167
Cal.Rptr. 831, 616 P.2d 813], internal citations omitted.)
• “We . . . conclude that we should not recognize a cause of action by a child for
loss of parental consortium.” (Borer v. American Airlines, Inc. (1977) 19 Cal.3d
441, 451 [138 Cal.Rptr. 302, 563 P.2d 858].)
• A parent may not recover loss of consortium damages for injury to his or her
child. (Baxter v. Superior Court (1977) 19 Cal.3d 461 [138 Cal.Rptr. 315, 563
P.2d 871].)
• Unmarried cohabitants may not recover damages for loss of consortium. (Elden,
supra, 46 Cal.3d at p. 277.)
• Under Proposition 51, damages for loss of consortium may be reduced by the
negligence of the injured spouse. (Craddock v. Kmart Corp. (2001) 89
Cal.App.4th 1300, 1309–1310 [107 Cal.Rptr.2d 881]; Hernandez v. Badger
Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1810–1811 [34
Cal.Rptr.2d 732].)
• “ ‘To entitle a plaintiff to recover present damages for apprehended future
consequences, there must be evidence to show such a degree of probability of
their occurring as amounts to a reasonable certainty that they will result from the
original injury.’ ” (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d
576, 588 [81 P.2d 894], internal citation omitted.)
• “[I]n a common law action for loss of consortium, the plaintiff can recover not
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only for the loss of companionship and affection through the time of the trial but
also for any future loss of companionship and affection that is sufficiently certain
to occur. In Rodriguez, we held that when a plaintiff’s spouse is permanently
disabled as a result of a defendant’s wrongdoing, future (posttrial) loss of
companionship and affection is sufficiently certain to permit an award of
prospective damages. If instead the injured spouse will soon die as a result of his
or her injuries, the future (posttrial) loss of companionship and affection is no
less certain. In short, we see no reason to make an exception here to the general
rule permitting an award of prospective damages in civil tort actions. Therefore,
under long-standing principles of tort liability, the recovery of prospective
damages in a common law action for loss of consortium includes damages for
lost companionship and affection resulting from the anticipated (and sufficiently
certain) premature death of the injured spouse.” (Boeken, supra, 48 Cal.4th at
pp. 799–800, internal citation omitted.)
• “[T]he plaintiff in a common law action for loss of consortium may not recover
for loss during a period in which the companionship and affection of the injured
spouse would have been lost anyway, irrespective of the defendant’s
wrongdoing, and therefore the life expectancy of the plaintiff and the life
expectancy of the injured spouse, whichever is shorter, necessarily places an
outer limit on damages.” (Boeken, supra, 48 Cal.4th at p. 800.)
• “[W]here an injury to a spouse that in turn causes injury to the plaintiff’s right to
consortium in the marital relationship is not discovered or discoverable until
after the couple’s marriage, and the underlying cause of action thus accrues
during the marriage, the plaintiff has a valid claim for loss of consortium even
though the negligent conduct may have predated the marriage.” (Leonard v. John
Crane, Inc. (2012) 206 Cal.App.4th 1274, 1290 [142 Cal.Rptr.3d 700]; see also
Vanhooser, supra, 206 Cal.App.4th at pp. 927–930 [reaching same result].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1857–1864
California Tort Damages (Cont.Ed.Bar) Loss of Consortium, §§ 2.6–2.7
4 Levy et al., California Torts, Ch. 56, Loss of Consortium, § 56.08 (Matthew
Bender)
31 California Forms of Pleading and Practice, Ch. 354, Loss of Consortium,
§§ 354.12, 354.14 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.25 (Matthew
Bender)
California Civil Practice: Torts §§ 10:10–10:16 (Thomson Reuters)
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3921. Wrongful Death (Death of an Adult)
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant] for the death of [name of
decedent], you also must decide how much money will reasonably
compensate [name of plaintiff] for the death of [name of decedent]. This
compensation is called “damages.”
[Name of plaintiff] does not have to prove the exact amount of these
damages. However, you must not speculate or guess in awarding
damages.
The damages claimed by [name of plaintiff] fall into two categories called
economic damages and noneconomic damages. You will be asked to state
the two categories of damages separately on the verdict form.
[Name of plaintiff] claims the following economic damages:
1. The financial support, if any, that [name of decedent] would have
contributed to the family during either the life expectancy that
[name of decedent] had before [his/her/nonbinary pronoun] death or
the life expectancy of [name of plaintiff], whichever is shorter;
2. The loss of gifts or benefits that [name of plaintiff] would have
expected to receive from [name of decedent];
3. Funeral and burial expenses; and
4. The reasonable value of household services that [name of
decedent] would have provided.
Your award of any future economic damages must be reduced to present
cash value.
[Name of plaintiff] also claims the following noneconomic damages:
1. The loss of [name of decedent]’s love, companionship, comfort,
care, assistance, protection, affection, society, moral support[;
[and]/.]
[2. The loss of the enjoyment of sexual relations[; [and]/.]]
[3. The loss of [name of decedent]’s training and guidance.]
No fixed standard exists for deciding the amount of noneconomic
damages. You must use your judgment to decide a reasonable amount
based on the evidence and your common sense.
[For these noneconomic damages, determine the amount in current
dollars paid at the time of judgment that will compensate [name of
plaintiff] for those damages. This amount of noneconomic damages
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should not be further reduced to present cash value because that
reduction should only be performed with respect to future economic
damages.]
In determining [name of plaintiff]’s loss, do not consider:
1. [Name of plaintiff]’s grief, sorrow, or mental anguish;
2. [Name of decedent]’s pain and suffering; or
3. The poverty or wealth of [name of plaintiff].
In deciding a person’s life expectancy, you may consider, among other
factors, the average life expectancy of a person of that age, as well as
that person’s health, habits, activities, lifestyle, and occupation.
According to [insert source of information], the average life expectancy of
a [insert number]-year-old [male/female] is [insert number] years, and the
average life expectancy of a [insert number]-year-old [male/female] is
[insert number] years. This published information is evidence of how long
a person is likely to live but is not conclusive. Some people live longer
and others die sooner.
[In computing these damages, consider the losses suffered by all plaintiffs
and return a verdict of a single amount for all plaintiffs. I will divide the
amount [among/between] the plaintiffs.]
New September 2003; Revised December 2005, February 2007, April 2008,
December 2009, June 2011, December 2013, May 2020
Directions for Use
If the decedent recovered damages for lost earning capacity in the decedent’s
lifetime, an heir’s recovery for lost financial support (economic damages item 1) is
to be measured by the decedent’s physical condition at the time of death. There is
no similar limitation on recovery for loss of consortium (noneconomic damages item
1). (Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 997–1000 [159
Cal.Rptr.3d 195]; see Blackwell v. American Film Co. (1922) 189 Cal. 689, 694
[209 P. 999].)
One of the life-expectancy subjects in the second sentence of the second-to-last
paragraph should be the decedent, and the other should be the plaintiff. This
definition is intended to apply to the element of damages pertaining to the financial
support that the decedent would have provided to the plaintiff.
Use of the life tables in Vital Statistics of the United States, published by the
National Center for Health Statistics, is recommended. (See Life Expectancy
Table—Male and Life Expectancy Table—Female, following the Damages series.)
The first column shows the age interval between the two exact ages indicated. For
example, 50–51 means the one-year interval between the fiftieth and fifty-first
birthdays.
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DAMAGES CACI No. 3921
For an instruction, worksheets, and tables for use in reducing future economic
damages to present value, see CACI No. 3904B, Use of Present-Value Tables.
The paragraph concerning not reducing noneconomic damages to present cash value
is bracketed because the law is not completely clear. It has been held that all
damages, pecuniary and nonpecuniary, must be reduced to present value. (See Fox v.
Pacific Southwest Airlines (1982) 133 Cal.App.3d 565, 569 [184 Cal.Rptr. 87]; cf.
Restat.2d of Torts, § 913A [future pecuniary losses must be reduced to present
value].) The view of the court in Fox was that damages for lost value of society,
comfort, care, protection and companionship must be monetarily quantified, and thus
become pecuniary and subject to reduction to present value. However, the California
Supreme Court subsequently held that with regard to future pain and suffering, the
amount that the jury is to award should already encompass the idea of today’s
dollars for tomorrow’s loss (See Salgado v. County of L.A. (1998) 19 Cal.4th 629,
646–647 [80 Cal.Rptr.2d 46, 967 P.2d 585]), so there is no further reduction to
present value. (See CACI No. 3904A, Present Cash Value, and CACI No. 3904B,
Use of Present-Value Tables.) While it seems probable that Salgado should apply to
wrongful death actions, no court has expressly so held.
Assuming that Salgado applies to wrongful death, this paragraph is important to
ensure that the jury does not apply any tables and worksheets provided to reduce
future economic damages to present value (see CACI No. 3904B) to the
noneconomic damages also. Note that because only future economic damages are to
be reduced to present value, the jury must find separate amounts for economic and
noneconomic damages and for past and present economic damages. (See CACI No.
VF-3905, Damages for Wrongful Death (Death of an Adult).)
Sources and Authority
• Cause of Action for Wrongful Death. Code of Civil Procedure section 377.60.
• Damages for Wrongful Death. Code of Civil Procedure section 377.61.
• “Generally, wrongful death claims are legally distinct from claims for personal
injury and loss of consortium. ‘A cause of action for wrongful death is a
statutory claim that compensates specified heirs of the decedent for losses
suffered as a result of a decedent’s death.’ Although each heir has a ‘personal
and separate’ claim, the wrongful death statutes ordinarily require joint litigation
of the heirs’ claims in order to prevent a series of suits against the tortfeasor.
However, that requirement does not deprive a court of subject matter jurisdiction
to try a wrongful death action when an heir fails to participate in the action.”
(LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 872 [240 Cal.Rptr.3d 1],
internal citations omitted.)
• “A cause of action for wrongful death is purely statutory in nature, and therefore
‘exists only so far and in favor of such person as the legislative power may
declare.’ ” (Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1184 [272
Cal.Rptr. 304], internal citations omitted.)
• “There are three distinct public policy considerations involved in the legislative
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creation of a cause of action for wrongful death: ‘(1) compensation for survivors,
(2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages
recoverable.’ ” (Barrett, supra, 222 Cal.App.3d at p. 1185, internal citation
omitted.)
• “The elements of the cause of action for wrongful death are the tort (negligence
or other wrongful act), the resulting death, and the damages, consisting of the
pecuniary loss suffered by the heirs.” (Lattimore v. Dickey (2015) 239
Cal.App.4th 959, 968 [191 Cal.Rptr.3d 766], original italics.)
• “ ‘[W]rongful act’ as used in section 377 means any kind of tortious act,
including the tortious act of placing defective products into the stream of
commerce.” (Barrett, supra, 222 Cal.App.3d at p. 1191.)
• “In any action for wrongful death resulting from negligence, the complaint must
contain allegations as to all the elements of actionable negligence.” (Novak v.
Continental Tire North America (2018) 22 Cal.App.5th 189, 195 [231
Cal.Rptr.3d 324].)
• “Under Code of Civil Procedure section 377.61, damages for wrongful death
“are measured by the financial benefits the heirs were receiving at the time of
death, those reasonably to be expected in the future, and the monetary equivalent
of loss of comfort, society, and protection.” (Boeken, supra, 217 Cal.App.4th at
p. 997.)
• “These benefits include the personal services, advice, and training the heirs
would have received from the deceased, and the value of her society and
companionship. ‘The services of children, elderly parents, or nonworking
spouses often do not result in measurable net income to the family unit, yet
unquestionably the death of such a person represents a substantial “injury” to the
family for which just compensation should be paid.’ ” (Allen v. Toledo (1980)
109 Cal.App.3d 415, 423 [167 Cal.Rptr. 270], internal citations omitted.)
• “ ‘The pecuniary value of the society, comfort, and protection that is lost through
the wrongful death of a spouse, parent, or child may be considerable in cases
where, for instance, the decedent had demonstrated a “kindly demeanor” toward
the statutory beneficiary and rendered assistance or “kindly offices” to that
person. [Citation.]’ ” (Soto v. BorgWarner Morse TEC Inc. (2015) 239
Cal.App.4th 165, 198−199 [191 Cal.Rptr.3d 263].)
• “Factors such as the closeness of a family unit, the depth of their love and
affection, and the character of the decedent as kind, attentive, and loving are
proper considerations for a jury assessing noneconomic damages . . . .” (Soto,
supra, 239 Cal.App.4th at p. 201.)
• “California permits recovery in a child’s wrongful death action for loss of a
parent’s consortium.” (Boeken, supra, 217 Cal.App.4th at pp. 997–998.)
• “Code of Civil Procedure section 377 has long allowed the recovery of funeral
expenses in California wrongful death actions.” (Vander Lind v. Superior Court
(1983) 146 Cal.App.3d 358, 364 [194 Cal.Rptr. 209].)
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• “Where, as here, decedent was a husband and father, a significant element of
damages is the loss of financial benefits he was contributing to his family by
way of support at the time of his death and that support reasonably expected in
the future. The total future lost support must be reduced by appropriate formula
to a present lump sum which, when invested to yield the highest rate of return
consistent with reasonable security, will pay the equivalent of lost future benefits
at the times, in the amounts and for the period such future benefits would have
been received.” (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d
512, 520–521 [196 Cal.Rptr. 82], internal citations omitted.)
• “To avoid confusion regarding the jury’s task in future cases, we conclude that
when future noneconomic damages are sought, the jury should be instructed
expressly that they are to assume that an award of future damages is a present
value sum, i.e., they are to determine the amount in current dollars paid at the
time of judgment that will compensate a plaintiff for future pain and suffering. In
the absence of such instruction, unless the record clearly establishes otherwise,
awards of future damages will be considered to be stated in terms of their
present or current value.” (Salgado, supra, 19 Cal.4th at pp. 646–647, original
italics.)
• “The California statutes and decisions . . . have been interpreted to bar the
recovery of punitive damages in a wrongful death action.” (Tarasoff v. Regents
of Univ. of Cal. (1976) 17 Cal.3d 425, 450 [131 Cal.Rptr. 14, 551 P.2d 334],
internal citation omitted.) There is an exception to this rule for death by felony
homicide for which the defendant has been convicted. (Civ. Code, § 3294(d).)
• “California cases have uniformly held that damages for mental and emotional
distress, including grief and sorrow, are not recoverable in a wrongful death
action.” (Krouse v. Graham (1977) 19 Cal.3d 59, 72 [137 Cal.Rptr. 863, 562
P.2d 1022], internal citations omitted.)
• “[A] simple instruction excluding considerations of grief and sorrow in wrongful
death actions will normally suffice.” (Krouse, supra, 19 Cal.3d at p. 69.)
• “[T]he competing and conflicting interests of the respective heirs, the difficulty
in ascertaining individual shares of lost economic support when dealing with
minors, the lack of any reason under most circumstances to apportion the lump-
sum award attributable to loss of monetary support where minors are involved,
the irrelevance of the heirs’ respective interests in that portion of the award
pertaining to lost economic support in determining the aggregate award, and the
more efficient nature of court proceedings without a jury, cumulatively establish
apportionment by the court, rather than the jury, is consistent with the efficient
administration of justice.” (Canavin, supra, 148 Cal.App.3d at pp. 535–536.)
• “[W]here all statutory plaintiffs, properly represented by legal counsel waive
judicial apportionment, the trial court should instruct the jury to return separate
verdicts unless the remaining considerations enumerated above mandate refusal.”
(Canavin, supra, 148 Cal.App.3d at p. 536.)
• “We note that the court instructed the jury that in determining pecuniary loss
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they should consider inter alia the age, state of health and respective life
expectancies of the deceased and each plaintiff but should be concerned only
with ‘the shorter of the life expectancies, that of one of the plaintiffs or that of
the deceased. . . .’ This was a correct statement of the law.” (Francis v. Sauve
(1963) 222 Cal.App.2d 102, 120–121 [34 Cal.Rptr. 754], internal citation
omitted.)
• “It is the shorter expectancy of life that is to be taken into consideration; for
example; if, as in the case here, the expectancy of life of the parents is shorter
than that of the son, the benefits to be considered are those only which might
accrue during the life of the surviving parents.” (Parsons v. Easton (1921) 184
Cal. 764, 770–771 [195 P. 419], internal citation omitted.)
• “The life expectancy of the deceased is a question of fact for the jury to decide,
considering all relevant factors including the deceased’s health, lifestyle and
occupation. Life expectancy figures from mortality tables are admissible but are
not conclusive.” (Allen, supra, 109 Cal.App.3d at p. 424, internal citations
omitted.)
• “Accordingly, the trial court in this case did not err in refusing [defendant]’s two
proposed jury instructions, and in denying its request to modify CACI No. 3921,
its motion for a directed verdict, its motion for a judgment notwithstanding the
verdict, and its motion for a new trial, all of which were based on the erroneous
ground that [plaintiff]’s loss of consortium damages were to be measured from
[decedent]’s physical condition at the time of his death.” (Boeken, supra, 217
Cal.App.4th at p. 1000.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1873–1880
California Tort Damages (Cont.Ed.Bar 2d ed.) Wrongful Death, §§ 3.1–3.58
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, §§ 55.10–55.13
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages,
§§ 177.163–177.167 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.25 (Matthew
Bender)
California Civil Practice: Torts §§ 23:8–23:8.2 (Thomson Reuters)
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3922. Wrongful Death (Parents’ Recovery for Death of a Minor
Child)
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant] for the death of [name of
minor], you also must decide how much money will reasonably
compensate [name of plaintiff] for the death of [name of minor]. This
compensation is called “damages.”
[Name of plaintiff] does not have to prove the exact amount of these
damages. However, you must not speculate or guess in awarding
damages.
The damages claimed by [name of plaintiff] fall into two categories called
economic damages and noneconomic damages. You will be asked to state
the two categories of damages separately on the verdict form.
[Name of plaintiff] claims the following economic damages:
1. The value of the financial support, if any, that [name of minor]
would have contributed to the family during either the life
expectancy that [name of minor] had before [his/her/nonbinary
pronoun] death or the life expectancy of [name of plaintiff],
whichever is shorter;
2. The loss of gifts or benefits that [name of plaintiff] could have
expected to receive from [name of minor];
3. Funeral and burial expenses; and
4. The reasonable value of household services that [name of minor]
would have provided.
Your award of any future economic damages must be reduced to present
cash value.
[Name of plaintiff] also claims the following noneconomic damages: The
loss of [name of minor]’s love, companionship, comfort, care, assistance,
protection, affection, society, and moral support.
No fixed standard exists for deciding the amount of noneconomic
damages. You must use your judgment to decide a reasonable amount
based on the evidence and your common sense.
[For these noneconomic damages, determine the amount in current
dollars paid at the time of judgment that will compensate [name of
plaintiff] for those damages. This amount of noneconomic damages
should not be further reduced to present cash value because that
reduction should only be performed with respect to future economic
damages.]
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Do not include in your award any compensation for the following:
1. [Name of plaintiff]’s grief, sorrow, or mental anguish; or
2. [Name of minor]’s pain and suffering.
In computing these damages, you should deduct the present cash value
of the probable costs of [name of minor]’s support and education.
In deciding a person’s life expectancy, consider, among other factors,
that person’s health, habits, activities, lifestyle, and occupation. Life
expectancy tables are evidence of a person’s life expectancy but are not
conclusive.
[In computing these damages, consider the losses suffered by all plaintiffs
and return a verdict of a single amount for all plaintiffs. I will divide the
amount [among/between] the plaintiffs.]
New September 2003; Revised December 2005, April 2008, December 2009, June
2011
Directions for Use
Use of the life tables in Vital Statistics of the United States, published by the
National Center for Health Statistics, is recommended. (See Life Expectancy
Table—Male and Life Expectancy Table—Female, following the Damages series.)
The first column shows the age interval between the two exact ages indicated. For
example, 50–51 means the one-year interval between the fiftieth and fifty-first
birthdays.
For an instruction, worksheets, and tables for use in reducing future economic
damages to present value, see CACI No. 3904B, Use of Present-Value Tables.
The paragraph concerning not reducing noneconomic damages to present cash value
is bracketed because the law is not completely clear. It has been held that all
damages, pecuniary and nonpecuniary, must be reduced to present value. (See Fox v.
Pacific Southwest Airlines (1982) 133 Cal.App.3d 565, 569 [184 Cal.Rptr. 87]; cf.
Restat. 2d of Torts, § 913A [future pecuniary losses must be reduced to present
value].) The view of the court in Fox was that damages for lost value of society,
comfort, care, protection and companionship must be monetarily quantified, and thus
become pecuniary and subject to reduction to present value. However, the California
Supreme Court subsequently held that with regard to future pain and suffering, the
amount that the jury is to award should already encompass the idea of today’s
dollars for tomorrow’s loss (See Salgado v. County of L.A. (1998) 19 Cal.4th 629,
646–647 [80 Cal.Rptr.2d 46, 967 P.2d 585]), so there is no further reduction to
present value. (See CACI No. 3904A, Present Cash Value, and CACI No. 3904B,
Use of Present-Value Tables.) While it seems probable that Salgado should apply to
wrongful death actions, no court has expressly so held.
Assuming that Salgado applies to wrongful death, this paragraph is important to
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ensure that the jury does not apply any tables and worksheets provided to reduce
future economic damages to present value (see CACI No. 3904B) to the
noneconomic damages also. Note that because only future economic damages are to
be reduced to present value, the jury must find separate amounts for economic and
noneconomic damages and for past and present economic damages. (See CACI No.
VF-3906, Damages for Wrongful Death (Parents’ Recovery for Death of a Minor
Child).)
Sources and Authority
• Cause of Action for Wrongful Death. Code of Civil Procedure section 377.60.
• Damages for Wrongful Death. Code of Civil Procedure section 377.61.
• “Generally, wrongful death claims are legally distinct from claims for personal
injury and loss of consortium. ‘A cause of action for wrongful death is a
statutory claim that compensates specified heirs of the decedent for losses
suffered as a result of a decedent’s death.’ Although each heir has a ‘personal
and separate’ claim, the wrongful death statutes ordinarily require joint litigation
of the heirs’ claims in order to prevent a series of suits against the tortfeasor.
However, that requirement does not deprive a court of subject matter jurisdiction
to try a wrongful death action when an heir fails to participate in the action.”
(LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 872 [240 Cal.Rptr.3d 1],
internal citations omitted.)
• “A cause of action for wrongful death is purely statutory in nature, and therefore
‘exists only so far and in favor of such person as the legislative power may
declare.’ ” (Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1184 [272
Cal.Rptr. 304], internal citations omitted.)
• “Where the deceased was a minor child, recovery is based on the present value
of reasonably probable future services and contributions, deducting the probable
cost of rearing the child.” (6 Witkin, Summary of Cal. Law (10th ed. 2005)
Torts, § 1695.)
• “There is authority in such cases for deducting from the loss factors—including
the pecuniary loss a parent suffers by being deprived of the comfort, protection
and society of a child—the prospective cost to the parent of the child’s support
and education. [¶] Although neither the loss factors nor such offsets are readily
measurable in a particular case—nor need they be measured in precise terms of
dollars and cents—in the case at bench the jury had before it for consideration a
court order subject to mathematical computation which required plaintiff to pay
support for his child in the sum of $125 monthly. The jury was entitled and
required to take into consideration the prospective cost to plaintiff of the boy’s
maintenance and rearing, and they may well have offset their reasonable
appraisal of such costs, under the general verdict, against any pecuniary loss
which they found that plaintiff suffered.” (Fields v. Riley (1969) 1 Cal.App.3d
308, 315 [81 Cal.Rptr. 671], internal citations omitted.)
• “There are three distinct public policy considerations involved in the legislative
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CACI No. 3922 DAMAGES
creation of a cause of action for wrongful death: ‘(1) compensation for survivors,
(2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages
recoverable.’ ” (Barrett, supra, 222 Cal.App.3d at p. 1185, internal citation
omitted.)
• “We therefore conclude, on this basis as well, that ‘wrongful act’ as used in
section 377 means any kind of tortious act, including the tortious act of placing
defective products into the stream of commerce.” (Barrett, supra, 222
Cal.App.3d at p. 1191.)
• “In any action for wrongful death resulting from negligence, the complaint must
contain allegations as to all the elements of actionable negligence.” (Jacoves v.
United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105 [11 Cal.Rptr.2d 468],
internal citation omitted.)
• “Damages for wrongful death are not limited to compensation for losses with
‘ascertainable economic value.’ Rather, the measure of damages is the value of
the benefits the heirs could reasonably expect to receive from the deceased if she
had lived.” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423 [167 Cal.Rptr. 270],
internal citations omitted.)
• “Code of Civil Procedure section 377 has long allowed the recovery of funeral
expenses in California wrongful death actions.” (Vander Lind v. Superior Court
(1983) 146 Cal.App.3d 358, 364 [194 Cal.Rptr. 209].)
• “The California statutes and decisions . . . have been interpreted to bar the
recovery of punitive damages in a wrongful death action.” (Tarasoff v. Regents
of Univ. of Cal. (1976) 17 Cal.3d 425, 450 [131 Cal.Rptr. 14, 551 P.2d 334],
internal citation omitted.) There is an exception to this rule for death by felony
homicide for which the defendant has been convicted. (Civ. Code, § 3294(d).)
• “California cases have uniformly held that damages for mental and emotional
distress, including grief and sorrow, are not recoverable in a wrongful death
action.” (Krouse v. Graham (1977) 19 Cal.3d 59, 72 [137 Cal.Rptr. 863, 562
P.2d 1022], internal citations omitted.)
• “[A] simple instruction excluding considerations of grief and sorrow in wrongful
death actions will normally suffice.” (Krouse, supra, 19 Cal.3d at p. 69.)
• “To avoid confusion regarding the jury’s task in future cases, we conclude that
when future noneconomic damages are sought, the jury should be instructed
expressly that they are to assume that an award of future damages is a present
value sum, i.e., they are to determine the amount in current dollars paid at the
time of judgment that will compensate a plaintiff for future pain and suffering. In
the absence of such instruction, unless the record clearly establishes otherwise,
awards of future damages will be considered to be stated in terms of their
present or current value.” (Salgado, supra, 19 Cal.4th at pp. 646–647, original
italics.)
• “[T]he competing and conflicting interests of the respective heirs, the difficulty
in ascertaining individual shares of lost economic support when dealing with
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minors, the lack of any reason under most circumstances to apportion the lump-
sum award attributable to loss of monetary support where minors are involved,
the irrelevance of the heirs’ respective interests in that portion of the award
pertaining to lost economic support in determining the aggregate award, and the
more efficient nature of court proceedings without a jury, cumulatively establish
[that] apportionment by the court, rather than the jury, is consistent with the
efficient administration of justice.” (Canavin v. Pacific Southwest Airlines (1983)
148 Cal.App.3d 512, 535–536 [196 Cal.Rptr. 82].)
• “[W]here all statutory plaintiffs properly represented by legal counsel waive
judicial apportionment, the trial court should instruct the jury to return separate
verdicts unless the remaining considerations enumerated above mandate refusal.”
(Canavin, supra, 148 Cal.App.3d at p. 536.)
• “We note that the court instructed the jury that in determining pecuniary loss
they should consider inter alia the age, state of health and respective life
expectancies of the deceased and each plaintiff but should be concerned only
with ‘the shorter of the life expectancies, that of one of the plaintiffs or that of
the deceased. . . .’ This was a correct statement of the law.” (Francis v. Sauve
(1963) 222 Cal.App.2d 102, 120–121 [34 Cal.Rptr. 754], internal citation
omitted.)
• “It is the shorter expectancy of life that is to be taken into consideration; for
example, if, as in the case here, the expectancy of life of the parents is shorter
than that of the son, the benefits to be considered are those only which might
accrue during the life of the surviving parents.” (Parsons v. Easton (1921) 184
Cal. 764, 770–771 [195 P. 419], internal citation omitted.)
• “The life expectancy of the deceased is a question of fact for the jury to decide,
considering all relevant factors including the deceased’s health, lifestyle and
occupation. Life expectancy figures from mortality tables are admissible but are
not conclusive.” (Allen, supra, 109 Cal.App.3d at p. 424, internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1878
California Tort Damages (Cont.Ed.Bar) Wrongful Death, §§ 3.1–3.52
4 Levy et al., California Torts, Ch. 55, Death and Survival Actions, §§ 55.10–55.13
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages,
§§ 177.162–177.167 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.25 (Matthew
Bender)
California Civil Practice: Torts §§ 23:8–23:8.2 (Thomson Reuters)
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3923. Public Entities—Collateral Source Payments (Gov. Code,
§ 985)
You must award damages in an amount that fully compensates [name of
plaintiff] for [his/her/nonbinary pronoun/its] damages in accordance with
instructions from the court. You may not speculate or consider any other
possible sources of benefit that [name of plaintiff] may have received.
After you have returned your verdict the court will make whatever
adjustments are necessary in this regard.
New September 2003; Revised June 2016
Directions for Use
Per Government Code section 985(j), this language is mandatory.
Sources and Authority
• Collateral Source Evidence Inadmissible in Action Against Public Entity.
Government Code section 985(b).
• Mandatory Instruction. Government Code section 985(j).
• “[T]he [collateral source rule] also covers payments such as pensions paid to a
plaintiff who, as a result of his injuries, can no longer work. Like insurance
benefits, such payments are considered to have been secured by the plaintiff’s
efforts as part of his employment contract, and the tortfeasor is entitled to no
credit for them. ‘With respect to pension benefits, the justification for the rule is
that the plaintiff secured the benefits by his labors, and the fact that he may
obtain a double recovery is not relevant.’ Pension benefits are a commonly cited
example of a collateral source that may not be used to decrease a plaintiff’s
recovery.” (Mize-Kurzman v. Marin Community College Dist. (2012) 202
Cal.App.4th 832, 872–873 [136 Cal.Rptr.3d 259], original italics, internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1811
California Tort Damages (Cont.Ed.Bar) Restrictions on Recovery, § 15.21
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.50
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Torts, § 64.190 et seq.
(Matthew Bender)
California Civil Practice: Torts § 31:47 (Thomson Reuters)
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3924. No Punitive Damages
You must not include in your award any damages to punish or make an
example of [name of defendant]. Such damages would be punitive
damages, and they cannot be a part of your verdict. You must award
only the damages that fairly compensate [name of plaintiff] for [his/her/
nonbinary pronoun/its] loss.
New September 2003
Directions for Use
Do not use this instruction if punitive damages are being sought in the phase of the
trial in which these instructions are given.
Sources and Authority
• No Governmental Liability for Punitive Damages. Government Code section
818.
• “Punitive damages are not permitted in wrongful death actions.” (Cortez v.
Macias (1980) 110 Cal.App.3d 640, 657 [167 Cal.Rptr. 905].)
• “[P]unitive damages are prohibited in an action against a public entity.” (Pearl v.
City of Los Angeles (2019) 36 Cal.App.5th 475, 486 [248 Cal.Rptr.3d 508].)
• “The punitive damages theory cannot be predicated on the breach of contract
cause of action without an underlying tort.” (Palmer v. Ted Stevens Honda, Inc.
(1987) 193 Cal.App.3d 530, 536 [238 Cal.Rptr. 363], internal citations omitted.)
• “An award of punitive damages is not supported by a verdict based on breach of
contract, even where the defendant’s conduct in breaching the contract was
wilful, fraudulent, or malicious. Even in those cases in which a separate tort
action is alleged, if there is ‘but one verdict based upon contract’ a punitive
damage award is improper.” (Myers Building Industries, Ltd. v. Interface
Technology, Inc. (1993) 13 Cal.App.4th 949, 960 [17 Cal.Rptr.2d 242], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1751
California Tort Damages (Cont.Ed.Bar) Punitive Damages, § 14.3
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.05, 54.08 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
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3925. Arguments of Counsel Not Evidence of Damages
The arguments of the attorneys are not evidence of damages. Your
award must be based on your reasoned judgment applied to the
testimony of the witnesses and the other evidence that has been admitted
during trial.
New September 2003
Directions for Use
If a pleading is admitted into evidence, the following may be added: “The amount
of damages that [name of plaintiff] has claimed in [his/her/nonbinary pronoun]
written pleadings is not evidence of [name of plaintiff]’s damages.”
Sources and Authority
• “[T]he trial court can and should instruct the jury that the argument of counsel
as to the amount of damages claimed by the plaintiff is not evidence and that its
duty is only to award such damages as will reasonably compensate the plaintiff
for his pain and suffering.” (Beagle v. Vasold (1966) 65 Cal.2d 166, 180–181 [53
Cal.Rptr. 129, 417 P.2d 673], internal citation omitted.)
• Courts have held that “attempts to suggest matters of an evidentiary nature to a
jury other than by the legitimate introduction into evidence is misconduct
whether by questions on cross-examination, argument or other means.” (Smith v.
Covell (1980) 100 Cal.App.3d 947, 960 [161 Cal.Rptr. 377].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1854
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.74
4 Levy et al., California Torts, Ch. 51, Pain and Suffering, §§ 51.50–51.51
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
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3926. Settlement Deduction
You have heard evidence that [name of plaintiff] has settled
[his/her/nonbinary pronoun/its] claim against [name of defendant]. Any
award of damages to [name of plaintiff] should be made without
considering any amount that [he/she/nonbinary pronoun/it] may have
received under this settlement. I will make the proper deduction from
any award of damages.
New September 2003; Revised December 2010
Sources and Authority
• Effect of Good-Faith Settlement. Code of Civil Procedure section 877.
• “When the plaintiff stipulates to the fact and amount of settlement before the
court, an approved procedure is for the court to reduce the verdict award by the
amount paid in settlement before entering judgment on the verdict.” (Syverson v.
Heitmann (1985) 171 Cal.App.3d 106, 111 [214 Cal.Rptr. 581], internal citations
omitted.)
• Courts have held that it is “proper to exclude evidence of the pretrial settlement
by one joint tortfeasor from the jury’s consideration, leaving it to the court to
apply Code of Civil Procedure section 877 to reduce the verdict.” (Knox v.
County of Los Angeles (1980) 109 Cal.App.3d 825, 834–835 [167 Cal.Rptr.
463], internal citation omitted.)
• “[W]here there is an admission ‘that a settlement has been made with one or
more joint tortfeasors in a certain amount there is no factual question to be
resolved by the jury respecting the settlement.’ ” (Albrecht v. Broughton (1970) 6
Cal.App.3d 173, 177 [85 Cal.Rptr. 659], internal citation omitted.)
• “Where the purpose of introducing evidence of a settlement is to reduce any
recovery that might be awarded pro tanto, this result can be achieved by a
simple calculation made by the court after the verdict has been rendered.”
(Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1082 [105 Cal.Rptr. 387],
footnote omitted.)
• “The presentation of evidence concerning the amount or fact of settlement to the
jury . . . is not only confusing, but also can lead to abuse in argument as it did
here.” (Shepherd, supra, 28 Cal.App.3d at p. 1083.)
• “[E]vidence of the fact and amount of settlement made by [plaintiff] with
[settling witness] might be admissible under proper limiting instructions for the
purpose of showing bias since he was a witness.” (Shepherd, supra, 28
Cal.App.3d at p. 1082, fn. 2, internal citation omitted.)
• “Under Civil Code section 1431.2, a defendant is only responsible for its share
of noneconomic damages as that share has been determined by the jury.
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‘Therefore, a nonsettling defendant may not receive any setoff under [Code of
Civil Procedure] section 877 for the portion of a settlement by another defendant
that is attributable to noneconomic damages.’ After application of Civil Code
section 1431.2, ‘. . . there is no amount that represents a common claim for
noneconomic damages against the settling and nonsettling defendants’ and thus
Code of Civil Procedure section 877 has no applicability to noneconomic
damages.” (Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 1308, 1319 [87
Cal.Rptr.2d 363], internal citations omitted.)
• “[A]n undifferentiated settlement must be apportioned between economic and
noneconomic damages so that the setoff applies only to economic damages.”
(Ehret, supra, 73 Cal.App.4th at p. 1320, internal citation omitted.)
• It has been held that, “[i]n the absence of any other allocation . . . the
percentage of economic damages reflected in the jury verdict [should] be applied
to determine the percentage of the settlements to be offset.” (Ehret, supra, 73
Cal.App.4th at p. 1320, internal citation omitted.)
• “Where there is a complete dismissal of a defendant, and a plaintiff seeks an
allocation of the settlement with that defendant for purposes of limiting the
setoff against another defendant’s liability, the burden is on the plaintiff to
establish facts to justify the allocation.” (Ehret, supra, 73 Cal.App.4th at p.
1322, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 204, 207
California Tort Damages (Cont.Ed.Bar) Restrictions on Recovery, § 15.12
4 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation,
§§ 74.20–74.28 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.45
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.73 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution,
§ 115.150 et seq. (Matthew Bender)
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3927. Aggravation of Preexisting Condition or Disability
[Name of plaintiff] is not entitled to damages for any physical or
emotional condition that [he/she/nonbinary pronoun] had before [name of
defendant]’s conduct occurred. However, if [name of plaintiff] had a
physical or emotional condition that was made worse by [name of
defendant]’s wrongful conduct, you must award damages that will
reasonably and fairly compensate [him/her/nonbinary pronoun] for the
effect on that condition.
New September 2003
Sources and Authority
• “[A] tortfeasor may be held liable in an action for damages where the effect of
his negligence is to aggravate a preexisting condition or disease. Plaintiff may
recover to the full extent that his condition has worsened as a result of
defendant’s tortious act.” (Sanchez v. Kern Emergency Medical Transportation
Corp. (2017) 8 Cal.App.5th 146, 168 [213 Cal.Rptr.3d 830].)
• “It is by no means self-evident that an act which precipitates a flare-up of a
preexisting condition should be considered a ‘cause which, in natural and
continuous sequence, produces the injury.’ Thus, general instructions on
proximate cause were not sufficient to inform the jury on the more specific issue
of aggravation of preexisting conditions.” (Ng v. Hudson (1977) 75 Cal.App.3d
250, 256 [142 Cal.Rptr. 69], internal citations omitted, overruled on another
ground in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574 [34
Cal.Rptr.2d 607, 882 P.2d 298].)
• “[An instruction on preexisting condition] is proper only where the injured is the
claimant seeking compensation for his injuries. That is not the case here in a
wrongful death action.” (Vecchione v. Carlin (1980) 111 Cal.App.3d 351, 358
[168 Cal.Rptr. 571].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1855
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.86
4 Levy et al., California Torts, Ch. 51, Pain and Suffering, § 51.23[3] (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.45
(Matthew Bender)
California Civil Practice: Torts § 5:11 (Thomson Reuters)
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3928. Unusually Susceptible Plaintiff
You must decide the full amount of money that will reasonably and
fairly compensate [name of plaintiff] for all damages caused by the
wrongful conduct of [name of defendant], even if [name of plaintiff] was
more susceptible to injury than a normally healthy person would have
been, and even if a normally healthy person would not have suffered
similar injury.
New September 2003
Sources and Authority
• “That a plaintiff without such a [preexisting] condition would probably have
suffered less injury or no injury does not exonerate a defendant from liability.”
(Ng v. Hudson (1977) 75 Cal.App.3d 250, 255 [142 Cal.Rptr. 69], internal
citations omitted, overruled on another ground in Soule v. G.M. Corp. (1994) 8
Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “The tortfeasor takes the person he injures as he finds him. If, by reason of some
preexisting condition, his victim is more susceptible to injury, the tortfeasor is
not thereby exonerated from liability.” (Rideau v. Los Angeles Transit Lines
(1954) 124 Cal.App.2d 466, 471 [268 P.2d 772], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1855
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.86
4 Levy et al., California Torts, Ch. 51, Pain and Suffering, § 51.23[3] (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts § 5:11 (Thomson Reuters)
868
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3929. Subsequent Medical Treatment or Aid
If you decide that [name of defendant] is legally responsible for [name of
plaintiff]’s harm, [he/she/nonbinary pronoun/it] is also responsible for any
additional harm resulting from the acts of others in providing medical
treatment or other aid that [name of plaintiff]’s injury reasonably
required, even if those acts were negligently performed.
New September 2003; Revised December 2007, October 2008
Directions for Use
Under Proposition 51 (Civ. Code § 1431.2), the original tortfeasor is entitled to have
the jury allocate fault to any subsequent tortfeasors with regard to the subsequent
aggravation of the injury. Each is responsible only for a comparative share of the
noneconomic damages attributable to the aggravated injury. (Henry v. Superior
Court (2008) 160 Cal.App.4th 440, 455 [72 Cal.Rptr.3d 808]; see also Marina
Emergency Medical Group v. Superior Court (2000) 84 Cal.App.4th 435 [100
Cal.Rptr.2d 866].)
Sources and Authority
• “It has long been the rule that a tortfeasor responsible for the original accident is
also liable for injuries or death occurring during the course of medical treatment
to treat injuries suffered in that accident. In Ash v. Mortensen (1944) 24 Cal.2d
654 [150 P.2d 876], the Supreme Court stated: ‘It is settled that where one who
has suffered personal injuries by reason of the tortious act of another exercises
due care in securing the services of a doctor and his injuries are aggravated by
the negligence of such doctor, the law regards the act of the original wrongdoer
as a proximate cause of the damages flowing from the subsequent negligent
medical treatment and holds him liable therefor.’ ” (Anaya v. Superior Court
(2000) 78 Cal.App.4th 971, 974 [93 Cal.Rptr.2d 228].)
• “Obviously, if the original tortfeasor is liable for injuries or death suffered during
the course of the treatment of injuries suffered in the accident, the original
tortfeasor is liable for injuries or death suffered during transportation of the
victim to a medical facility for treatment of the injuries resulting from the
accident.” (Anaya, supra, 78 Cal.App.4th at p. 975.)
• “To the extent damages for [plaintiff]’s injured shoulder can in fact be divided
by causation into distinct component parts—the original injury that resulted from
the fall at the [defendants]’ property and the aggravation of that injury caused by
[plaintiff]’s negligent treatment by . . . physicians—liability for each indivisible
component part should be considered separately. The [defendants], if they were
negligent, are solely responsible for the initial injury; liability for the indivisible
enhanced or aggravated injury, however, is properly apportioned between the
[defendants] and the . . . physicians in accordance with the rules of comparative
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fault and section 1431.2.” (Henry, supra, 160 Cal.App.4th at p. 455.)
• “While it is true the original tortfeasor is liable for additional harm (even death)
resulting from the negligent care and treatment of the original injury by
physicians and hospitals, such liability is not limited to negligently caused
additional harm or that caused by malpractice.” (Hastie v. Handeland (1969) 274
Cal.App.2d 599, 604–605 [79 Cal.Rptr. 268], internal citations and footnote
omitted.)
• This rule applies to the first doctor who treats a patient who subsequently is
treated by other doctors. (Maxwell v. Powers (1994) 22 Cal.App.4th 1596,
1607–1608 [28 Cal.Rptr.2d 62].)
• Restatement Second of Torts section 457, states: “If the negligent actor is liable
for another’s bodily injury, he is also subject to liability for any additional bodily
harm resulting from normal efforts of third persons in rendering aid which the
other’s injury reasonably requires, irrespective of whether such acts are done in a
proper or a negligent manner.”
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1855
Flahavan et al., California Practice Guide: Personal Injury, Ch. 4-C, Effective
Settlement Negotiations, ¶¶ 4:175-4:177 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.85
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation,
§ 74.04[3], [4] (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Contribution and Indemnity,
§ 300.63[2] (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.74[3][a]
(Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.61
(Matthew Bender)
870
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3930. Mitigation of Damages (Personal Injury)
If you decide [name of defendant] is responsible for the original harm,
[name of plaintiff] is not entitled to recover damages for harm that [name
of defendant] proves [name of plaintiff] could have avoided with
reasonable efforts or expenditures.
You should consider the reasonableness of [name of plaintiff]’s efforts in
light of the circumstances facing [him/her/nonbinary pronoun] at the time,
including [his/her/nonbinary pronoun] ability to make the efforts or
expenditures without undue risk or hardship.
If [name of plaintiff] made reasonable efforts to avoid harm, then your
award should include reasonable amounts that [he/she/nonbinary
pronoun] spent for this purpose.
New September 2003
Sources and Authority
• “It has been the policy of the courts to promote the mitigation of damages. The
doctrine applies in tort, wilful as well as negligent. A plaintiff cannot be
compensated for damages which he could have avoided by reasonable effort or
expenditures.” (Green v. Smith (1968) 261 Cal.App.2d 392, 396 [67 Cal.Rptr.
796], internal citations omitted.)
• “The frequent statement of the principle in the terms of a ‘duty’ imposed on the
injured party has been criticized on the theory that a breach of the ‘duty’ does
not give rise to a correlative right of action. It is perhaps more accurate to say
that the wrongdoer is not required to compensate the injured party for damages
which are avoidable by reasonable effort on the latter’s part.” (Green, supra, 261
Cal.App.2d at p. 396, internal citations omitted.)
• “The reasonableness of the efforts of the injured party must be judged in the
light of the situation confronting him at the time the loss was threatened and not
by the judgment of hindsight. The fact that reasonable measures other than the
one taken would have avoided damage is not, in and of itself, proof of the fact
that the one taken, though unsuccessful, was unreasonable. ‘If a choice of two
reasonable courses presents itself, the person whose wrong forced the choice
cannot complain that one rather than the other is chosen.’ The standard by which
the reasonableness of the injured party’s efforts is to be measured is not as high
as the standard required in other areas of law. It is sufficient if he acts
reasonably and with due diligence, in good faith.” (Green, supra, 261
Cal.App.2d at pp. 396–397, internal citations omitted.)
• “The correct rule is that an injured person must use reasonable diligence in
caring for his injuries. What is reasonable diligence depends upon all the facts
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and circumstances of each case. There is no hard and fast rule that the injured
person must seek medical care of a particular type. Self-care may be reasonable
under the circumstances, and the jury should be so instructed where that factor is
relevant.” (Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 346 [112 P.2d
723], internal citations omitted.)
• “ ‘The rule of mitigation of damages has no application where its effect would
be to require the innocent party to sacrifice and surrender important and valuable
rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32
Cal.Rptr.2d 329], internal citations omitted.)
• “The duty to minimize damages does not require an injured person to do what is
unreasonable or impracticable, and, consequently, when expenditures are
necessary for minimization of damages, the duty does not run to a person who is
financially unable to make such expenditures.” (Valencia v. Shell Oil Co. (1944)
23 Cal.2d 840, 846 [147 P.2d 558], internal citations omitted.)
• “Contributory negligence was closely allied and easily confused with the rule of
mitigation of damages, on which the jury was also instructed. Both doctrines
involved the plaintiff’s duty to act reasonably. Contributory negligence was
concerned with the plaintiff’s negligence before being injured, while the
mitigation rule was concerned with a lack of due care after the injury. The effect
of contributory negligence was to bar all recovery by the plaintiff. In contrast, a
plaintiff’s failure to mitigate barred recovery of only the portion of damages
which could have been avoided by ordinary care after the injury.” (LeMons v.
Regents of University of California (1978) 21 Cal.3d 869, 874–875 [148
Cal.Rptr. 355, 582 P.2d 946], internal citations omitted.)
• “ ‘The rule of [mitigation of damages] comes into play after a legal wrong has
occurred, but while some damages may still be averted . . . .’ ” (Pool v. City of
Oakland (1986) 42 Cal.3d 1051, 1066 [232 Cal.Rptr. 528, 728 P.2d 1163],
internal citations omitted.)
• “[W]hile the burden of proving the extent of injury . . . actually incurred as a
result of a defendant’s tortious conduct lies with the plaintiff, the burden of
proving the plaintiff failed to act reasonably in limiting his or her consequential
damages—that is, failed to mitigate damages—is on the defendant . . . .”
(Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 97 [101 Cal.Rptr.3d 303].)
• “One who contributes to damage cannot escape liability because the
proportionate contribution may not be accurately measured. It is incumbent upon
the party alleging injury to prove the amount of damages. Respondent sustained
that burden in this case. If the damages proven could be reduced proportionately,
that burden rested upon appellant.” (Oakland v. Pacific Gas & Electric Co.
(1941) 47 Cal.App.2d 444, 450 [118 P.2d 328], internal citations omitted.)
• “It is true that plaintiff is in duty bound to minimize his damage in any way that
he reasonably can, and if he negligently refuses to do so he cannot recover for
that which he might have prevented. It is for appellant to establish that the steps
taken by plaintiff to so minimize his loss or damage falls short of the obligation
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so fixed. In other words, the burden is on defendant to establish matters asserted
by him in mitigation or reduction of the amount of plaintiff’s damage, and
defendant here has not met that burden.” (McNary v. Hanley (1933) 131
Cal.App. 188, 190 [20 P.2d 966].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1798–1801
California Tort Damages (Cont.Ed.Bar) Restrictions on Recovery, §§ 15.22–15.23
4 Levy et al., California Torts, Ch. 53, Mitigation and Collateral Source Rule,
§§ 53.01–53.04 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.48
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.171 et seq.
(Matthew Bender)
California Civil Practice: Torts §§ 6:1–6:6 (Thomson Reuters)
873
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3931. Mitigation of Damages (Property Damage)
If you decide [name of defendant] is responsible for the original harm,
[name of plaintiff] is not entitled to recover damages for harm to [his/her/
nonbinary pronoun] property that [name of defendant] proves [name of
plaintiff] could have avoided with reasonable efforts or expenditures.
You should consider the reasonableness of [name of plaintiff]’s efforts in
light of the circumstances facing [him/her/nonbinary pronoun] at the time,
including [his/her/nonbinary pronoun] ability to make the efforts or
expenditures without undue risk or hardship.
If [name of plaintiff] made reasonable efforts to avoid harm, then your
award should include reasonable amounts that [he/she/nonbinary
pronoun] spent for this purpose.
New September 2003
Sources and Authority
• “It has been the policy of the courts to promote the mitigation of damages. The
doctrine applies in tort, wilful as well as negligent. A plaintiff cannot be
compensated for damages which he could have avoided by reasonable effort or
expenditures.” (Green v. Smith (1968) 261 Cal.App.2d 392, 396 [67 Cal.Rptr.
796], internal citations omitted.)
• “The frequent statement of the principle in the terms of a ‘duty’ imposed on the
injured party has been criticized on the theory that a breach of the ‘duty’ does
not give rise to a correlative right of action. It is perhaps more accurate to say
that the wrongdoer is not required to compensate the injured party for damages
which are avoidable by reasonable effort on the latter’s part.” (Green, supra, 261
Cal.App.2d at p. 396, internal citations omitted.)
• “The reasonableness of the efforts of the injured party must be judged in the
light of the situation confronting him at the time the loss was threatened and not
by the judgment of hindsight. The fact that reasonable measures other than the
one taken would have avoided damage is not, in and of itself, proof of the fact
that the one taken, though unsuccessful, was unreasonable. ‘If a choice of two
reasonable courses presents itself, the person whose wrong forced the choice
cannot complain that one rather than the other is chosen.’ The standard by which
the reasonableness of the injured party’s efforts is to be measured is not as high
as the standard required in other areas of law. It is sufficient if he acts
reasonably and with due diligence, in good faith.” (Green, supra, 261
Cal.App.2d at pp. 396–397, internal citations omitted.)
• “A plaintiff who suffers damage as a result of either a breach of contract or a
tort has a duty to take reasonable steps to mitigate those damages and will not
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be able to recover for any losses which could have been thus avoided. Here the
jury determined that 25 percent of the ‘property damage to the house’ could have
been avoided. That damage was measured by the cost of repair, i.e., $130,000.
The court was obligated to give effect to the jury’s finding and reduce this aspect
of the award to $97,500.” (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41 [21
Cal.Rptr.2d 110], internal citations omitted.)
• “A plaintiff has a duty to mitigate damages and cannot recover losses it could
have avoided through reasonable efforts. Thrifty-Tel’s only response is that
mitigation does not ‘ “require a complex series of doubtful acts and
expenditures.” ’ Picking up the telephone to reach out and touch the Bezeneks or
sending them a letter was complex, doubtful, or expensive? Based on Myron
Bezenek’s unchallenged testimony, we must presume that simple expedient
would have averted the second hacking episode. Accordingly, Thrifty-Tel is not
entitled to recover damages for the February 1992 event.” (Thrifty-Tel, Inc. v.
Bezenek (1996) 46 Cal.App.4th 1559, 1568–1569 [54 Cal.Rptr.2d 468], internal
citations omitted.)
• “Contributory negligence was closely allied and easily confused with the rule of
mitigation of damages, on which the jury was also instructed. Both doctrines
involved the plaintiff’s duty to act reasonably. Contributory negligence was
concerned with the plaintiff’s negligence before being injured, while the
mitigation rule was concerned with a lack of due care after the injury. The effect
of contributory negligence was to bar all recovery by the plaintiff. In contrast, a
plaintiff’s failure to mitigate barred recovery of only the portion of damages
which could have been avoided by ordinary care after the injury.” (LeMons v.
Regents of University of California (1978) 21 Cal.3d 869, 874–875 [148
Cal.Rptr. 355, 582 P.2d 946], internal citations omitted.)
• “ ‘The rule of [mitigation of damages] comes into play after a legal wrong has
occurred, but while some damages may still be averted . . . .’ ” (Pool v. City of
Oakland (1986) 42 Cal.3d 1051, 1066 [232 Cal.Rptr. 528, 728 P.2d 1163],
internal citations omitted.)
• “Generally, ‘[a] person injured by the wrongful act of another is bound . . . to
exercise reasonable care and diligence to avoid loss or minimize the resulting
damages and cannot recover for losses which might have been prevented by
reasonable efforts and expenditures on his part.’ The burden of proving facts in
mitigation of damages rests upon the defendant.” (Hunter v. Croysdill (1959) 169
Cal.App.2d 307, 318 [337 P.2d 174], internal citations omitted.)
• “One who contributes to damage cannot escape liability because the
proportionate contribution may not be accurately measured. It is incumbent upon
the party alleging injury to prove the amount of damages. Respondent sustained
that burden in this case. If the damages proven could be reduced proportionately,
that burden rested upon appellant.” (Oakland v. Pacific Gas & Electric Co.
(1941) 47 Cal.App.2d 444, 450 [118 P.2d 328], internal citations omitted.)
• Restatement Second of Torts section 918 provides:
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(1) Except as stated in Subsection (2), one injured by the tort of
another is not entitled to recover damages for any harm that he could
have avoided by the use of reasonable effort or expenditure after the
commission of the tort.
(2) One is not prevented from recovering damages for a particular
harm resulting from a tort if the tortfeasor intended the harm or was
aware of it and was recklessly disregardful of it, unless the injured
person with knowledge of the danger of the harm intentionally or
heedlessly failed to protect his own interests.
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1798–1801
California Tort Damages (Cont.Ed.Bar) Restrictions on Recovery, §§ 15.22–15.23
4 Levy et al., California Torts, Ch. 53, Mitigation and Collateral Source Rule,
§§ 53.01–53.04 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
California Civil Practice: Torts §§ 6:1–6:6 (Thomson Reuters)
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3932. Life Expectancy
If you decide [name of plaintiff] has suffered damages that will continue
for the rest of [his/her/nonbinary pronoun] life, you must determine how
long [he/she/nonbinary pronoun] will probably live. According to [insert
source of information], a [insert number]-year-old [male/female] is expected
to live another [insert number] years. This is the average life expectancy.
Some people live longer and others die sooner.
This published information is evidence of how long a person is likely to
live but is not conclusive. In deciding a person’s life expectancy, you
should also consider, among other factors, that person’s health, habits,
activities, lifestyle, and occupation.
New September 2003; Revised February 2005, February 2007
Directions for Use
Use of the life tables in Vital Statistics of the United States, published by the
National Center for Health Statistics, is recommended. (See Life Expectancy
Table—Male and Life Expectancy Table—Female, following the Damages series.)
The first column shows the age interval between the two exact ages indicated. For
example, 50–51 means the one-year interval between the fiftieth and fifty-first
birthdays.
Sources and Authority
• “The life expectancy of the deceased is a question of fact for the jury to decide,
considering all relevant factors including the deceased’s health, lifestyle and
occupation. Life expectancy figures from mortality tables are admissible but are
not conclusive. Here the jury was correctly told the figure given was not
conclusive evidence of Charlene’s life expectancy. It was merely ‘a factor which
you may consider,’ along with the evidence of Charlene’s health, habits,
occupation and activities.” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 424 [167
Cal.Rptr. 270], internal citations omitted.)
• “Mortality tables are admissible to assist the jury but they are not indispensable.
It has been held, for example, that, absent mortality tables, the trier of fact may
still approximate the life expectancy of a statutory beneficiary who appeared in
court.” (Francis v. Sauve (1963) 222 Cal.App.2d 102, 121 [34 Cal.Rptr. 754],
internal citations omitted.)
• “It is a matter of common knowledge that many persons live beyond the period
of life allotted them by the mortality roles.” (Temple v. De Mirjian (1942) 51
Cal.App.2d 559, 566 [125 P.2d 544], internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1843
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4 Levy et al., California Torts, Ch. 51, Pain and Suffering, § 51.42[2][c], Ch. 52,
Medical Expenses and Economic Loss, § 52.20 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
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3933. Damages From Multiple Defendants
In this case, [name of plaintiff] seeks damages from more than one
defendant. You must determine the liability of each defendant to [name
of plaintiff] separately.
If you determine that more than one defendant is liable to [name of
plaintiff] for damages, you will be asked to find [name of plaintiff]’s total
damages [and the comparative fault of [[name of plaintiff]/each
defendant/ [and] other nonparties]].
In deciding on the amount of damages, consider only [name of plaintiff]’s
claimed losses. Do not attempt to divide the damages [between/among]
the defendants. The allocation of responsibility for payment of damages
among multiple defendants is to be done by the court after you reach
your verdict.
New December 2010
Directions for Use
Give this instruction in any case involving the joint and several liability of multiple
defendants or several liability only for noneconomic damages under Proposition 51.
(See Civ. Code, § 1431.2.) It is designed to deter the jury from awarding different
damages against each defendant after factoring in the respective culpability of the
defendants. Do not give this instruction in a case in which separate tortfeasors have
caused separate injuries. (See Carr v. Cove (1973) 33 Cal.App.3d 851, 854 [109
Cal.Rptr. 449].)
If comparative fault is at issue, give the bracketed language in the second paragraph.
Comparative fault may involve each defendant, the plaintiff, and other nonparties.
“Nonparties” include the universe of tortfeasors who are not present at trial,
including defendants who settled before trial and nonjoined alleged tortfeasors.
(Dafonte v. Up-Right (1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140].)
See also CACI No. 406, Apportionment of Responsibility, and CACI No. VF-402,
Negligence—Fault of Plaintiff and Others at Issue.
Sources and Authority
• Proposition 51. Civil Code section 1431.2(a).
• “The pro tanto reduction provision works to prevent settlements from producing
double recoveries in the case of a single injury caused by joint tortfeasors. The
general theory of compensatory damages bars double recovery for the same
wrong. The principal situation is where joint or concurrent tortfeasors are jointly
and severally liable for the same wrong. Only one complete satisfaction is
permissible, and, if partial satisfaction is received from one, the liability of
others will be correspondingly reduced.” (Carr, supra, 33 Cal.App.3d at p. 854,
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original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1518
1 Levy et al., California Torts, Ch. 11, Conflicts of Law and Preemption, § 11.07
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and Contribution,
§ 300.60 et seq. (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution,
§ 115.130 et seq. (Matthew Bender)
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3934. Damages on Multiple Legal Theories
[Name of plaintiff] seeks damages from [name of defendant] under more
than one legal theory. However, each item of damages may be awarded
only once, regardless of the number of legal theories alleged.
You will be asked to decide whether [name of defendant] is liable to [name
of plaintiff] under the following legal theories [list]:
1. [e.g., breach of employment contract];
2. [e.g., wrongful termination in violation of public policy];
3. [continue].
The following items of damages are recoverable only once under all of
the above legal theories:
1. [e.g., lost past income];
2. [e.g., medical expenses];
3. [continue].
[The following additional items of damages are recoverable only once for
[specify legal theories]:
1. [e.g., emotional distress];
2. [continue].
[Continue until all items of damages recoverable under any legal theory have
been listed.]]
New December 2010
Directions for Use
This instruction is to guide the jury in awarding damages in a case involving
multiple claims, causes of action, or counts in which different damages are
recoverable under different legal theories. It should be used with CACI No. VF-
3920, Damages on Multiple Legal Theories.
This instruction and verdict form are designed to help avoid juror confusion in
filling out the damages table or tables when multiple causes of action, counts, or
legal theories are to be decided and the potential damages are different on some or
all of them. (See, e.g., Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 701–705
[101 Cal.Rptr.3d 773, 219 P.3d 749].) It is not necessary to give this instruction if
the same damages are recoverable on all causes of action, counts, or legal theories,
although giving only the opening paragraph might be appropriate.
First list all of the causes of action, counts, or legal theories that the jury must
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address. Then list the items of damages recoverable under all of the theories. Then
list the additional damages that may be awarded on each of the other causes of
action. Each item of damages should be listed somewhere, but only once.
If there are multiple plaintiffs with different claims for different damages, repeat the
entire instruction for each plaintiff except for the opening paragraph.
Often it will be necessary to identify items of damages with considerable specificity.
For example, instead of just “emotional distress,” it may be necessary to specify
“emotional distress from harassment before termination of employment” and
“additional emotional distress because of termination of employment.” (See, e.g.,
Roby, supra, 47 Cal.4th at pp. 701–705.)
Sources and Authority
• “Regardless of the nature or number of legal theories advanced by the plaintiff,
he is not entitled to more than a single recovery for each distinct item of
compensable damage supported by the evidence. [Citation.] Double or
duplicative recovery for the same items of damage amounts to overcompensation
and is therefore prohibited. [Citation.] [¶] . . . [¶] In contrast, where separate
items of compensable damage are shown by distinct and independent evidence,
the plaintiff is entitled to recover the entire amount of his damages, whether that
amount is expressed by the jury in a single verdict or multiple verdicts referring
to different claims or legal theories.” (Roby, supra, 47 Cal.4th at p. 702.)
• “As for the Court of Appeal’s statement that under the instructions plaintiff was
entitled to recover the same amount of damages under any of plaintiff’s various
theories, we have reviewed the instructions and none of them would preclude a
finding of differing amounts of damage for each theory of recovery. Indeed, as a
matter of logic, it would seem unlikely that plaintiff’s damages from being
defamed by defendants would be identical to the damages he incurred from
being ousted from [the] board of directors. . . . [T]hese theories of recovery
seem based on different ‘primary’ rights and duties of the parties.” (Tavaglione v.
Billings (1993) 4 Cal.4th 1150, 1158 [17 Cal.Rptr.2d 608, 847 P.2d 574.)
• “The trial court instructed the jury . . . that [plaintiff] could not be awarded
duplicative damages on different counts, thus suggesting that it was the jury’s
responsibility to avoid awarding duplicative damages. But neither the instructions
nor the special verdict form told the jury how to avoid awarding duplicative
damages. With a single general verdict or a general verdict with special findings,
where the verdict includes a total damages award, the jury presumably will
follow the instruction (such as the one given here) and ensure that the total
damages award includes no duplicative amounts. A special verdict on multiple
counts, however, is different. If the jury finds the amount of damages separately
for each count and does not calculate the total damages award, as here, the jury
has no opportunity to eliminate any duplicative amounts in calculating the total
award. Absent any instruction specifically informing the jury how to properly
avoid awarding duplicative damages, it might have attempted to do so by finding
no liability or no damages on certain counts, resulting in an inconsistent
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verdict.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338,
360 [112 Cal.Rptr.3d 455].)
• “A special verdict must present the jury’s conclusions of facts, ‘and those
conclusions of fact must be so presented as that nothing shall remain to the
Court but to draw from them conclusions of law.’ In our view, a special verdict
on multiple counts should include factual findings identifying any duplicative
amounts, or a finding as to the total amount of damages eliminating any
duplicative amounts, so as to allow the trial court to avoid awarding duplicative
damages in the judgment.” (Singh, supra, 186 Cal.App.4th at p. 360, internal
citation omitted.)
• “ ‘In California the phrase “cause of action” is often used indiscriminately . . .
to mean counts which state [according to different legal theories] the same cause
of action . . . .’ But for purposes of applying the doctrine of res judicata, the
phrase ‘cause of action’ has a more precise meaning: The cause of action is the
right to obtain redress for a harm suffered, regardless of the specific remedy
sought or the legal theory (common law or statutory) advanced. . . . ‘[T]he
“cause of action” is based upon the harm suffered, as opposed to the particular
theory asserted by the litigant. [Citation.] Even where there are multiple legal
theories upon which recovery might be predicated, one injury gives rise to only
one claim for relief. ‘Hence a judgment for the defendant is a bar to a
subsequent action by the plaintiff based on the same injury to the same right,
even though he presents a different legal ground for relief.” [Citations.]’ Thus,
under the primary rights theory, the determinative factor is the harm suffered.
When two actions involving the same parties seek compensation for the same
harm, they generally involve the same primary right.” (Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 798 [108 Cal.Rptr.3d 806, 230 P.3d 342],
original italics, internal citations omitted.)
• “Here the jury was properly instructed that it could not award damages under
both contract and tort theories, but must select which theory, if either, was
substantiated by the evidence, and that punitive damages could be assessed if
defendant committed a tort with malice or intent to oppress plaintiffs, but that
such damages could not be allowed in an action based on breach of contract,
even though the breach was wilful.” (Acadia, California, Ltd. v. Herbert (1960)
54 Cal.2d 328, 336–337 [5 Cal.Rptr. 686, 353 P.2d 294].)
• “Ordinarily, a plaintiff asserting both a contract and tort theory arising from the
same factual setting cannot recover damages under both theories, and the jury
should be so instructed. Here, the court did not specifically instruct that damages
could be awarded on only one theory, but did direct that punitive damages could
be awarded only if the jury first determined that appellant had proved his tort
action.” (Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 760, fn. 13
[250 Cal.Rptr. 195], internal citation omitted.)
• “The trial court would have been better advised to make an explicit instruction
that duplicate damages could not be awarded. Indeed, it had a duty to do so.”
(Dubarry International, Inc. v. Southwest Forest Industries, Inc. (1991) 231
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Cal.App.3d 552, 565, fn. 16 [282 Cal.Rptr. 181], internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1717
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.23 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.50
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.150 (Matthew
Bender)
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3935. Prejudgment Interest (Civ. Code, § 3288)
If you decide that [name of plaintiff] is entitled to recover damages for
past economic loss in one or more of the categories of damages that [he/
she/nonbinary pronoun/it] claims, then you must decide whether [he/she/
nonbinary pronoun/it] should also receive prejudgment interest on each
item of loss in those categories. Prejudgment interest is the amount of
interest the law provides to a plaintiff to compensate for the loss of the
ability to use the funds. If prejudgment interest is awarded, it is
computed from the date on which each loss was incurred until the date
on which you sign your verdict.
Whether [name of plaintiff] should receive an award of prejudgment
interest on all, some, or none of any past economic damages that you
may award is within your discretion. If you award these damages to
[name of plaintiff], you will be asked to address prejudgment interest in
the special verdict form.
New December 2016
Directions for Use
Give this instruction if the court determines that the jury may award prejudgment
interest. In an action for the breach of an obligation not arising from contract, and
in every case of oppression, fraud, or malice, interest may be given, in the
discretion of the jury. (Civ. Code, § 3288.) The statute allows the jury to award
prejudgment interest on any claim within its scope. (Bullis v. Security Pac. Nat’l
Bank (1978) 21 Cal.3d 801, 814 [148 Cal.Rptr. 22, 582 P.2d 109].) The special
verdict form may need to be augmented for the jury to make any factual findings
that are required in order to calculate the amount of prejudgment interest.
The role of the jury in awarding prejudgment interest is not clear from Civil Code
section 3288. This instruction assumes that the court exercises a gatekeeper function
of deciding whether the case is one to which the statute applies. The jury does not
select the interest rate, which is seven percent as a matter of law. (Michelson v.
Hamada (1994) 29 Cal.App.4th 1566, 1585 [36 Cal.Rptr.2d 343].)
It is settled that prejudgment interest cannot be awarded on damages for the
intangible, noneconomic aspects of mental and emotional injury because they are
inherently nonpecuniary, unliquidated, and not readily subject to precise calculation.
(Greater Westchester Homeowners Assn v. L.A. (1979) 26 Cal.3d 86, 102–103 [160
Cal.Rptr.733, 603 P.2d 1329].) This instruction assumes that implicit in the
reasoning for denying prejudgment interest for noneconomic damages is
authorization to award it on all past economic damages, as these amounts are
pecuniary and subject to more precise calculation. This instruction should not be
given unless damages of this nature are claimed.
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Since the statute is permissive, the jury has the discretion to deny prejudgment
interest, even if it might otherwise be authorized. (See King v. Southern Pacific Co.
(1895) 109 Cal. 96, 99 [41 P. 786] [error to instruct jury that it must add
prejudgment interest to award of damages].)
Whether interest may be compounded is also not resolved. (Compare Douglas v.
Westfall (1952) 113 Cal.App.2d 107, 112 [248 P.2d 68] [trustee cannot be charged
with compound interest unless s/he has been guilty of some positive misconduct or
willful violation of duty; in cases of mere negligence, no more than simple interest
can properly be added] and State v. Day (1946) 76 Cal.App.2d 536, 554 [173 P.2d
399] [general rule is that interest may not be computed on accrued interest unless by
special statutory provision, or by stipulation of the parties] with Michelson, supra,
29 Cal.App.4th at p. 1588 [jury is vested with discretion to award prejudgment
interest under section 3288, including compound interest] and McNulty v. Copp
(1954) 125 Cal.App.2d 697, 712 [271 P.2d 90] [compound interest is properly
allowed on a claim for wrongful and fraudulent detention of personalty].)
Sources and Authority
• Interest on Obligation Not Arising From Contract. Civil Code section 3288.
• “Under Civil Code section 3288, the trier of fact may award prejudgment
interest ‘[in] an action for the breach of an obligation not arising from contract,
and in every case of oppression, fraud, or malice . . . .’ “ (Bullis, supra, 21
Cal.3d at p. 814, original italics.)
• “[U]nlike Civil Code section 3287, which relates to liquidated and contractual
claims, section 3288 permits discretionary prejudgment interest for unliquidated
tort claims.” (Greater Westchester Homeowners Assn, supra, 26 Cal.3d at p.
102.)
• “Conceptually, prejudgment interest is an element of damages, not a cost of
litigation.” (Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2
Cal.App.5th 279, 293 [206 Cal.Rptr.3d 281].)
• “In Bullis, we characterized prejudgment interest as ‘awarded to compensate a
party for the loss of his or her property.’ The award of such interest represents
the accretion of wealth which money or particular property could have produced
during a period of loss. Using recognized and established techniques a fact finder
can usually compute with fair accuracy the interest on a specific sum of money,
or on property subject to specific valuation. Furthermore, the date of loss of the
property is usually ascertainable, thus permitting an accurate interest
computation.” (Greater Westchester Homeowners Assn, supra, 26 Cal.3d at pp.
102–103, internal citations omitted.)
• “The award of [prejudgment] interest represents the accretion of wealth which
money or particular property could have produced during a period of loss.”
(Canavin v. Pac. Southwest Airlines (1983)148 Cal.App.3d 512, 525 [196
Cal.Rptr. 82].)
• “However, damages for the intangible, noneconomic aspects of mental and
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emotional injury are of a different nature. They are inherently nonpecuniary,
unliquidated and not readily subject to precise calculation. The amount of such
damages is necessarily left to the subjective discretion of the trier of fact.
Retroactive interest on such damages adds uncertain conjecture to speculation.
Moreover where, as here, the injury was of a continuing nature, it is particularly
difficult to determine when any particular increment of intangible loss arose.
Acknowledging the problem, the trial court arbitrarily resorted to an ‘averaging’
method applied to both the amount and duration of the loss. In our view this
process was impermissibly speculative.” (Greater Westchester Homeowners Assn,
supra, 26 Cal.3d at p. 103.)
• “The amount of damages awarded in a wrongful death case designed to
compensate these noneconomic losses are akin to those awarded for pain and
suffering and emotional distress in Greater Westchester and do not support
prejudgment interest. However, plaintiffs are entitled to prejudgment interest on
those damages attributable to an ascertainable economic value, such as loss of
household services or earning capacity, as well as funeral and related expenses.
‘[It] is important to underscore that [an] award is invalid only to the extent it
represents interest on “the intangible noneconomic aspects of mental and
emotional injury” claimed by plaintiffs. [Citation.] If plaintiffs allege specific
damage that is supported by tangible evidence, prejudgment interest may
properly be awarded under Civil Code section 3288.’ ” (Canavin, supra, 148
Cal.App.3d at p. 527, internal citations omitted.)
• “Whether the proper interest rate was applied is a question of law. There is no
legislative act specifying the rate of prejudgment interest for a fraud claim, and
therefore the constitutional rate of 7 percent applies . . . .” (Michelson, supra, 29
Cal.App.4th at p. 1585.)
• “Section 3288 . . . allows interest from date of monetary loss at the discretion
of the trier of fact even if the damages are unliquidated.” (Stein v. Southern Cal.
Edison Co. (1992) 7 Cal.App.4th 565, 572 [8 Cal.Rptr.2d 907].)
• “[T]his action lies in tort and it is the generally accepted view that
[prejudgment] interest cannot be awarded on damages for personal injury.”
(Curtis v. State of California ex rel. Dept. of Transportation (1982) 128
Cal.App.3d 668, 686 [180 Cal.Rptr. 843].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1818, 1821, 1822
4 Levy et al., California Torts, Ch. 50, Damages, §§ 50.51, 50.52 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.53
(Matthew Bender)
12 California Points and Authorities, Ch. 121, Interest, §§ 121.33, 121.54 (Matthew
Bender)
3936–3939. Reserved for Future Use
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3940. Punitive Damages—Individual Defendant—Trial Not
Bifurcated
If you decide that [name of defendant]’s conduct caused [name of plaintiff]
harm, you must decide whether that conduct justifies an award of
punitive damages. The purposes of punitive damages are to punish a
wrongdoer for the conduct that harmed the plaintiff and to discourage
similar conduct in the future.
You may award punitive damages only if [name of plaintiff] proves by
clear and convincing evidence that [name of defendant] engaged in that
conduct with malice, oppression, or fraud.
“Malice” means that [name of defendant] acted with intent to cause
injury or that [name of defendant]’s conduct was despicable and was done
with a willful and knowing disregard of the rights or safety of another. A
person acts with knowing disregard when the person is aware of the
probable dangerous consequences of the person’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that [name of defendant]’s conduct was despicable
and subjected [name of plaintiff] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that [name of defendant] intentionally misrepresented or
concealed a material fact and did so intending to harm [name of
plaintiff].
There is no fixed formula for determining the amount of punitive
damages, and you are not required to award any punitive damages. If
you decide to award punitive damages, you should consider all of the
following factors in determining the amount:
(a) How reprehensible was [name of defendant]’s conduct? In deciding
how reprehensible [name of defendant]’s conduct was, you may
consider, among other factors:
1. Whether the conduct caused physical harm;
2. Whether [name of defendant] disregarded the health or safety
of others;
3. Whether [name of plaintiff] was financially weak or vulnerable
and [name of defendant] knew [name of plaintiff] was financially
weak or vulnerable and took advantage of [him/her/nonbinary
pronoun/it];
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4. Whether [name of defendant]’s conduct involved a pattern or
practice; and
5. Whether [name of defendant] acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive
damages and [name of plaintiff]’s harm [or between the amount of
punitive damages and potential harm to [name of plaintiff] that
[name of defendant] knew was likely to occur because of [his/her/
nonbinary pronoun/its] conduct]?
(c) In view of [name of defendant]’s financial condition, what amount
is necessary to punish [him/her/nonbinary pronoun/it] and
discourage future wrongful conduct? You may not increase the
punitive award above an amount that is otherwise appropriate
merely because [name of defendant] has substantial financial
resources. [Any award you impose may not exceed [name of
defendant]’s ability to pay.]
[Punitive damages may not be used to punish [name of defendant] for the
impact of [his/her/nonbinary pronoun/its] alleged misconduct on persons
other than [name of plaintiff].]
New September 2003; Revised April 2004, October 2004, December 2005, June
2006, April 2007, August 2007, October 2008, May 2020
Directions for Use
This instruction is intended to apply to individual persons only. When the plaintiff is
seeking punitive damages against corporate defendants, use CACI No. 3943,
Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or
Employee—Trial Not Bifurcated, or CACI No. 3945, Punitive Damages—Entity
Defendant—Trial Not Bifurcated. When plaintiff is seeking punitive damages against
both an individual person and a corporate defendant, use CACI No. 3947, Punitive
Damages—Individual and Entity Defendants—Trial Not Bifurcated.
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
Read the bracketed language at the end of the first sentence of factor (b) only if
there is evidence that the conduct of defendant that allegedly gives rise to liability
and punitive damages either caused or foreseeably threatened to cause harm to
plaintiff that would not be included in an award of compensatory damages. (Simon
v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379,
113 P.3d 63].) The bracketed phrase concerning “potential harm” might be
appropriate, for example, if damages actually caused by the defendant’s acts are not
recoverable because they are barred by statute (id. at p. 1176, citing Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. 389, 582 P.2d 980] [in a
bad faith insurance case, plaintiff died before judgment, precluding her estate’s
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recovery of emotional distress damages]), or if the harm caused by defendant’s acts
could have been great, but by chance only slight harm was inflicted. (Simon, supra,
35 Cal.4th at p. 1177, citing TXO Production Corp. v. Alliance Resources Corp.
(1993) 509 U.S. 443, 459 [113 S.Ct. 2711, 125 L.Ed.2d 366] [considering the
hypothetical of a person wildly firing a gun into a crowd but by chance only
damaging a pair of glasses].) The bracketed phrase should not be given where an
award of compensatory damages is the “true measure” of the harm or potential harm
caused by defendant’s wrongful acts. (Simon, supra, 35 Cal.4th at pp. 1178–1179
[rejecting consideration for purposes of assessing punitive damages of the plaintiff’s
loss of the benefit of the bargain if the jury had found that there was no binding
contract].)
Read the optional final sentence of factor (c) only if the defendant has presented
relevant evidence regarding that issue.
Read the optional final sentence if there is a possibility that in arriving at an amount
of punitive damages, the jury might consider harm that the defendant’s conduct may
have caused to nonparties. (See Philip Morris USA v. Williams (2007) 549 U.S. 346,
353–354 [127 S.Ct. 1057, 166 L.Ed.2d 940].) Harm to others may be relevant to
determining reprehensibility based on factors (a)(2) (disregard of health or safety of
others) and (a)(4) (pattern or practice). (See State Farm Mutual Automobile
Insurance Co. v. Campbell (2003) 538 U.S. 408, 419 [123 S.Ct. 1513, 155 L.Ed.2d
585].)
“A jury must be instructed . . . that it may not use evidence of out-of-state conduct
to punish a defendant for action that was lawful in the jurisdiction where it
occurred.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p.
422.) An instruction on this point should be included within this instruction if
appropriate to the facts.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Courts have stated that “[p]unitive damages previously imposed for the same
conduct are relevant in determining the amount of punitive damages required to
sufficiently punish and deter. The likelihood of future punitive damage awards may
also be considered, although it is entitled to considerably less weight.” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d
525], internal citations omitted.) The court in Stevens suggested that the following
instruction be given if evidence of other punitive damage awards is introduced into
evidence:
If you determine that a defendant has already been assessed with punitive
damages based on the same conduct for which punitive damages are requested
in this case, you may consider whether punitive damages awarded in other cases
have sufficiently punished and made an example of the defendant. You must not
use the amount of punitive damages awarded in other cases to determine the
amount of the punitive damage award in this case, except to the extent you
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DAMAGES CACI No. 3940
determine that a lesser award, or no award at all, is justified in light of the
penalties already imposed. (Stevens, supra, 49 Cal.App.4th at p. 1663, fn. 7.)
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• “An award of punitive damages is not supported by a verdict based on breach of
contract, even where the defendant’s conduct in breaching the contract was
wilful, fraudulent, or malicious. Even in those cases in which a separate tort
action is alleged, if there is ‘but one verdict based upon contract’ a punitive
damage award is improper.” (Myers Building Industries, Ltd. v. Interface
Technology, Inc. (1993) 13 Cal.App.4th 949, 960 [17 Cal.Rptr.2d 242], internal
citations omitted.)
• “The purpose of punitive damages is to punish wrongdoers and thereby deter the
commission of wrongful acts.” (Neal, supra, 21 Cal.3d at p. 928, fn. 13.)
• “Punitive damages are to be assessed in an amount which, depending upon the
defendant’s financial worth and other factors, will deter him and others from
committing similar misdeeds. Because compensatory damages are designed to
make the plaintiff ‘whole,’ punitive damages are a ‘windfall’ form of recovery.”
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
• “It follows that the wealthier the wrongdoing defendant, the larger the award of
exemplary damages need be in order to accomplish the statutory objective.”
(Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65 [118 Cal.Rptr. 184,
529 P.2d 608].)
• “ ‘A plaintiff, upon establishing his case, is always entitled of right to
compensatory damages. But even after establishing a case where punitive
damages are permissible, he is never entitled to them. The granting or
withholding of the award of punitive damages is wholly within the control of the
jury, and may not legally be influenced by any direction of the court that in any
case a plaintiff is entitled to them. Upon the clearest proof of malice in fact, it is
still the exclusive province of the jury to say whether or not punitive damages
shall be awarded. A plaintiff is entitled to such damages only after the jury, in
the exercise of its untrammeled discretion, has made the award.’ ” (Brewer v.
Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 801 [197 P.2d
713], internal citation omitted.)
• “In light of our holding that evidence of a defendant’s financial condition is
essential to support an award of punitive damages, Evidence Code section 500
mandates that the plaintiff bear the burden of proof on the issue. A plaintiff
seeking punitive damages is not seeking a mere declaration by the jury that he is
entitled to punitive damages in the abstract. The plaintiff is seeking an award of
real money in a specific amount to be set by the jury. Because the award,
whatever its amount, cannot be sustained absent evidence of the defendant’s
financial condition, such evidence is ‘essential to the claim for relief.’ ” (Adams
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v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318, 813 P.2d 1348],
internal citation omitted.)
• “A defendant is in the best position to know his or her financial condition, and
cannot avoid a punitive damage award by failing to cooperate with discovery
orders. [¶] A number of cases have held that noncompliance with a court order
to disclose financial condition precludes a defendant from challenging the
sufficiency of the evidence of a punitive damages award on appeal.” (Fernandes
v. Singh (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751].)
• “[T]he purpose of punitive damages is not served by financially destroying a
defendant. The purpose is to deter, not to destroy.” (Adams, supra, 54 Cal.3d at
p. 112.)
• “[A] punitive damages award is excessive if it is disproportionate to the
defendant’s ability to pay.” (Adams, supra, 54 Cal.3d at p. 112, internal citations
omitted.)
• “It has been recognized that punitive damages awards generally are not
permitted to exceed 10 percent of the defendant’s net worth.” (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510].)
• “While ‘there is no rigid formula and other factors may be dispositive especially
when net worth is manipulated and fails to reflect actual wealth,’ net worth is
often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff
seeking punitive damages must provide a balanced overview of the defendant’s
financial condition; a selective presentation of financial condition evidence will
not survive scrutiny.” (Farmers & Merchants Trust Co. v. Vanetik (2019) 33
Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted.)
• “[N]et worth is not the only measure of a defendant’s wealth for punitive
damages purposes that is recognized by the California courts. ‘Indeed, it is likely
that blind adherence to any one standard [of determining wealth] could
sometimes result in awards which neither deter nor punish or which deter or
punish too much.’ ” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68,
79 [139 Cal.Rptr.3d 849].)
• “[T]he ‘net’ concept of the net worth metric remains critical. ‘In most cases,
evidence of earnings or profit alone are not sufficient “without examining the
liabilities side of the balance sheet.” [Citations.]’ ” (Soto v. BorgWarner Morse
TEC Inc. (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal
citations omitted.)
• “[W]e are afforded guidance by certain established principles, all of which are
grounded in the purpose and function of punitive damages. One factor is the
particular nature of the defendant’s acts in light of the whole record; clearly,
different acts may be of varying degrees of reprehensibility, and the more
reprehensible the act, the greater the appropriate punishment, assuming all other
factors are equal. Another relevant yardstick is the amount of compensatory
damages awarded; in general, even an act of considerable reprehensibility will
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not be seen to justify a proportionally high amount of punitive damages if the
actual harm suffered thereby is small. Also to be considered is the wealth of the
particular defendant; obviously, the function of deterrence will not be served if
the wealth of the defendant allows him to absorb the award with little or no
discomfort. By the same token, of course, the function of punitive damages is
not served by an award which, in light of the defendant’s wealth and the gravity
of the particular act, exceeds the level necessary to properly punish and deter.”
(Neal, supra, 21 Cal.3d at p. 928, internal citations and footnote omitted.)
• “[T]he Constitution’s Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties or
those whom they directly represent, i.e., injury that it inflicts upon those who
are, essentially, strangers to the litigation.” (Philip Morris USA, supra, 549 U.S.
at p. 353.)
• “Evidence of actual harm to nonparties can help to show that the conduct that
harmed the plaintiff also posed a substantial risk of harm to the general public,
and so was particularly reprehensible—although counsel may argue in a
particular case that conduct resulting in no harm to others nonetheless posed a
grave risk to the public, or the converse. Yet for the reasons given above, a jury
may not go further than this and use a punitive damages verdict to punish a
defendant directly on account of harms it is alleged to have visited on
nonparties.” (Philip Morris USA, supra, 549 U.S. at p. 355.)
• “ ‘Due process does not permit courts, in the calculation of punitive damages, to
adjudicate the merits of other parties’ hypothetical claims against a defendant
under the guise of the reprehensibility analysis . . . . Punishment on these bases
creates the possibility of multiple punitive damages awards for the same
conduct . . . .’ This does not mean, however, that the defendant’s similar
wrongful conduct toward others should not be considered in determining the
amount of punitive damages.” (Bullock v. Philip Morris USA, Inc. (2011) 198
Cal.App.4th 543, 560 [131 Cal.Rptr.3d 382].)
• “Though due process does not permit courts or juries, in the calculation of
punitive damages, to adjudicate the merits of other parties’ hypothetical claims
against a defendant under the guise of the reprehensibility analysis, this does not
mean that the defendant’s similar wrongful conduct toward others should not be
considered in determining the amount of punitive damages. . . . ‘[T]o consider
the defendant’s entire course of conduct in setting or reviewing a punitive
damages award, even in an individual plaintiff’s lawsuit, is not to punish the
defendant for its conduct toward others. An enhanced punishment for recidivism
does not directly punish the earlier offense; it is, rather, “ ‘ “a stiffened penalty
for the last crime, which is considered to be an aggravated offense because a
repetitive one.” ’ ” . . . By placing the defendant’s conduct on one occasion into
the context of a business practice or policy, an individual plaintiff can
demonstrate that the conduct toward him or her was more blameworthy and
warrants a stronger penalty to deter continued or repeated conduct of the same
nature.’ ” (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 986, fn. 10
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[180 Cal.Rptr.3d 382], internal citations omitted.)
• “[A] specific instruction encompassing both the permitted and prohibited uses of
evidence of harm caused to others would be appropriate in the new trial if
requested by the parties. We believe that an instruction on these issues should
clearly distinguish between the permitted and prohibited uses of such evidence
and thus make clear to the jury the purposes for which it can and cannot
consider that evidence. A jury may consider evidence of harm caused to others
for the purpose of determining the degree of reprehensibility of a defendant’s
conduct toward the plaintiff in deciding the amount of punitive damages, but it
may not consider that evidence for the purpose of punishing the defendant
directly for harm caused to others. In our view, Judicial Council of California
Civil Jury Instructions (Aug. 2007 rev.) CACI Nos. 3940, 3942, 3943, 3945,
3947, and 3949 could convey this distinction better by stating more explicitly
that evidence of harm caused to others may be considered for the one purpose
but not for the other, and by providing that explanation together with the
reprehensibility factors rather than in connection with the reasonable relationship
issue.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 695, fn.
21 [71 Cal.Rptr.3d 775], internal citation omitted.)
• “ ‘[T]he most important indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant’s conduct.’ We have
instructed courts to determine the reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health or safety
of others; the target of the conduct had financial vulnerability; the conduct
involved repeated actions or was an isolated incident; and the harm was the
result of intentional malice, trickery, or deceit, or mere accident. The existence
of any one of these factors weighing in favor of a plaintiff may not be sufficient
to sustain a punitive damages award; and the absence of all of them renders any
award suspect.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S.
at p. 419, internal citation omitted.)
• “[I]n a case involving physical harm, the physical or physiological vulnerability
of the target of the defendant’s conduct is an appropriate factor to consider in
determining the degree of reprehensibility, particularly if the defendant
deliberately exploited that vulnerability.” (Bullock, supra, 198 Cal.App.4th at p.
562, internal citation omitted.)
• “[W]e have been reluctant to identify concrete constitutional limits on the ratio
between harm, or potential harm, to the plaintiff and the punitive damages
award. We decline again to impose a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant degree, will satisfy
due process. . . . [A]n award of more than four times the amount of
compensatory damages might be close to the line of constitutional
impropriety. . . . While these ratios are not binding, they are instructive. They
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demonstrate what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution, than awards with ratios in range of 500 to 1 . . . .” (State Farm
Mutual Automobile Insurance Co., supra, 538 U.S. at pp. 424–425, internal
citation omitted.)
• “Nonetheless, because there are no rigid benchmarks that a punitive damages
award may not surpass, ratios greater than those we have previously upheld may
comport with due process where ‘a particularly egregious act has resulted in
only a small amount of economic damages.’ The converse is also true, however.
When compensatory damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost limit of the due process
guarantee. The precise award in any case, of course, must be based upon the
facts and circumstances of the defendant’s conduct and the harm to the plaintiff.”
(State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 425,
internal citation omitted.)
• “In determining whether a punitive damages award is unconstitutionally
excessive, Brandt fees may be included in the calculation of the ratio of punitive
to compensatory damages, regardless of whether the fees are awarded by the
trier of fact as part of its verdict or are determined by the trial court after the
verdict has been rendered.” (Nickerson v. Stonebridge Life Ins. Co. (2016) 63
Cal.4th 363, 368 [203 Cal.Rptr.3d 23, 371 P.3d 242].)
• “The decision to award punitive damages is exclusively the function of the trier
of fact. So too is the amount of any punitive damage award. The relevant
considerations are the nature of the defendant’s conduct, the defendant’s wealth,
and the plaintiff’s actual damages.” (Gagnon v. Continental Casualty Co. (1989)
211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. 305], internal citations omitted.)
• “The wealth of a defendant cannot justify an otherwise unconstitutional punitive
damages award.” (State Farm Mutual Automobile Insurance Co., supra, 538
U.S. at p. 427, internal citation omitted.)
• “[I]n some cases, the defendant’s financial condition may combine with high
reprehensibility and a low compensatory award to justify an extraordinary ratio
between compensatory and punitive damages. [Citation.]” (Nickerson v.
Stonebridge Life Ins. Co. (Nickerson II) (2016) 5 Cal.App.5th 1, 26 [209
Cal.Rptr.3d 690].)
• “In light of our discussion, we conclude that even where, as here, punitive but
not compensatory damages are available to the plaintiff, the defendant is entitled
to an instruction that punitive damages must bear a reasonable relation to the
injury, harm, or damage actually suffered by the plaintiff and proved at trial.
Consequently, the trial court erred in failing to so instruct the jury.” (Gagnon,
supra, 211 Cal.App.3d at p. 1605.)
• “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
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and he or she willfully fails to avoid such consequences. [Citation.] Malice may
be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences. [Citation.]’ ” (Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [164 Cal.Rptr.3d 112].)
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725, internal citations
omitted.)
• “We conclude that the rule . . . that an award of exemplary damages must be
accompanied by an award of compensatory damages [or its equivalent] is still
sound. That rule cannot be deemed satisfied where the jury has made an express
determination not to award compensatory damages.” (Cheung v. Daley (1995) 35
Cal.App.4th 1673, 1677 [42 Cal.Rptr.2d 164], footnote omitted.)
• “With the focus on the plaintiff’s injury rather than the amount of compensatory
damages, the [‘reasonable relation’] rule can be applied even in cases where only
equitable relief is obtained or where nominal damages are awarded or, as here,
where compensatory damages are unavailable.” (Gagnon, supra, 211 Cal.App.3d
at p. 1605.)
• “The high court in TXO [TXO Production Corp., supra] and BMW [BMW of
North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d
809]] has refined the disparity analysis to take into account the potential loss to
plaintiffs, as where a scheme worthy of punitive damages does not fully succeed.
In such cases, the proper ratio would be the ratio of punitive damages to the
potential harm to plaintiff.” (Sierra Club Found. v. Graham (1999) 72
Cal.App.4th 1135, 1162, fn. 15 [85 Cal.Rptr.2d 726], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1727, 1729, 1731,
1743–1748, 1780–1796
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶¶ 3:255–3:281.15 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar 2d ed.) Punitive Damages, §§ 14.1–14.12,
14.39
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.01–54.06,
54.20–54.25 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.141 et seq.,
64.174 et seq. (Matthew Bender)
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3941. Punitive Damages—Individual Defendant—Bifurcated Trial
(First Phase)
If you decide that [name of defendant]’s conduct caused [name of plaintiff]
harm, you must decide whether that conduct justifies an award of
punitive damages. At this time, you must decide whether [name of
plaintiff] has proved by clear and convincing evidence that [name of
defendant] engaged in that conduct with malice, oppression, or fraud.
The amount of punitive damages, if any, will be decided later.
“Malice” means that [name of defendant] acted with intent to cause
injury or that [name of defendant]’s conduct was despicable and was done
with a willful and knowing disregard of the rights or safety of another. A
person acts with knowing disregard when the person is aware of the
probable dangerous consequences of the person’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that [name of defendant]’s conduct was despicable
and subjected [name of plaintiff] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that [name of defendant] intentionally misrepresented or
concealed a material fact and did so intending to harm [name of
plaintiff].
New September 2003; Revised April 2004, December 2005, May 2020
Directions for Use
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• Evidence of Profits or Financial Condition. Civil Code section 3295(d).
• “[Section 3295(d)] affects the order of proof at trial, precluding the admission of
evidence of defendants’ financial condition until after the jury has returned a
verdict for plaintiffs awarding actual damages and found that one or more
defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil
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Code section 3294.” (City of El Monte v. Superior Court (1994) 29 Cal.App.4th
272, 274–275 [34 Cal.Rptr.2d 490], internal citations omitted.)
• “Evidence of the defendant’s financial condition is a prerequisite to an award of
punitive damages. In order to protect defendants from the premature disclosure
of their financial position when punitive damages are sought, the Legislature
enacted Civil Code section 3295.” (City of El Monte, supra, 29 Cal.App.4th at p.
276, internal citations omitted.)
• “[C]ourts have held it is reversible error to try the punitive damages issue to a
new jury after the jury which found liability has been excused.” (Rivera v.
Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal
citations omitted.)
• “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
and he or she willfully fails to avoid such consequences. [Citation.] Malice may
be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences. [Citation.]’ ” (Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [164 Cal.Rptr.3d 112].)
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1727, 1731,
1743–1748, 1780–1796
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶¶ 3:1375, 3:1696 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Punitive Damages, §§ 14.1–14.8,
14.15–14.18, 14.23
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.01–54.06,
54.24[4][d] (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51[17]
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.24 et seq.
(Matthew Bender)
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3942. Punitive Damages—Individual Defendant—Bifurcated Trial
(Second Phase)
You must now decide the amount, if any, that you should award [name of
plaintiff] in punitive damages. The purposes of punitive damages are to
punish a wrongdoer for the conduct that harmed the plaintiff and to
discourage similar conduct in the future.
There is no fixed formula for determining the amount of punitive
damages, and you are not required to award any punitive damages. If
you decide to award punitive damages, you should consider all of the
following factors in determining the amount:
(a) How reprehensible was [name of defendant]’s conduct? In deciding
how reprehensible [name of defendant]’s conduct was, you may
consider, among other factors:
1. Whether the conduct caused physical harm;
2. Whether [name of defendant] disregarded the health or safety
of others;
3. Whether [name of plaintiff] was financially weak or vulnerable
and [name of defendant] knew [name of plaintiff] was financially
weak or vulnerable and took advantage of [him/her/nonbinary
pronoun/it];
4. Whether [name of defendant]’s conduct involved a pattern or
practice; and
5. Whether [name of defendant] acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive
damages and [name of plaintiff]’s harm [or between the amount of
punitive damages and potential harm to [name of plaintiff] that
[name of defendant] knew was likely to occur because of [his/her/
nonbinary pronoun/its] conduct]?
(c) In view of [name of defendant]’s financial condition, what amount
is necessary to punish [him/her/nonbinary pronoun/it] and
discourage future wrongful conduct? You may not increase the
punitive award above an amount that is otherwise appropriate
merely because [name of defendant] has substantial financial
resources. [Any award you impose may not exceed [name of
defendant]’s ability to pay.]
[Punitive damages may not be used to punish [name of defendant] for the
impact of [his/her/nonbinary pronoun/its] alleged misconduct on persons
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other than [name of plaintiff].]
New September 2003; Revised April 2004, October 2004, June 2006, April 2007,
August 2007, October 2008
Directions for Use
Read the bracketed language at the end of the first sentence of factor (b) only if
there is evidence that the conduct of defendant that allegedly gives rise to liability
and punitive damages either caused or foreseeably threatened to cause harm to
plaintiff that would not be included in an award of compensatory damages. (Simon
v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379,
113 P.3d 63].) The bracketed phrase concerning “potential harm” might be
appropriate, for example, if damages actually caused by the defendant’s acts are not
recoverable because they are barred by statute (id. at p. 1176, citing Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. 389, 582 P.2d 980] [in a
bad faith insurance case, plaintiff died before judgment, precluding her estate’s
recovery of emotional distress damages]), or if the harm caused by defendant’s acts
could have been great but by chance only slight harm was inflicted. (Simon, supra,
35 Cal.4th at p. 1177, citing TXO Production Corp. v. Alliance Resources Corp.
(1993) 509 U.S. 443, 459 [113 S.Ct. 2711, 125 L.Ed.2d 366] [considering the
hypothetical of a person wildly firing a gun into a crowd but by chance only
damaging a pair of glasses].) The bracketed phrase should not be given if an award
of compensatory damages is the “true measure” of the harm or potential harm
caused by defendant’s wrongful acts. (Simon, supra, 35 Cal.4th at pp. 1178–1179
[rejecting consideration for purposes of assessing punitive damages of the plaintiff’s
loss of the benefit of the bargain if the jury had found that there was no binding
contract].)
Read the optional final sentence of factor (c) only if the defendant has presented
relevant evidence regarding that issue.
Read the optional final sentence if there is a possibility that in arriving at an amount
of punitive damages, the jury might consider harm that the defendant’s conduct may
have caused to nonparties. (See Philip Morris USA v. Williams (2007) 549 U.S. 346,
353–354 [127 S.Ct. 1057, 166 L.Ed.2d 940].) Harm to others may be relevant to
determining reprehensibility based on factors (a)(2) (disregard of health or safety of
others) and (a)(4) (pattern or practice). (See State Farm Mutual Automobile
Insurance Co. v. Campbell (2003) 538 U.S. 408, 419 [123 S.Ct. 1513, 155 L.Ed.2d
585].)
“A jury must be instructed . . . that it may not use evidence of out-of-state conduct
to punish a defendant for action that was lawful in the jurisdiction where it
occurred.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p.
422.) An instruction on this point should be included within this instruction if
appropriate to the facts.
Courts have stated that “[p]unitive damages previously imposed for the same
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conduct are relevant in determining the amount of punitive damages required to
sufficiently punish and deter. The likelihood of future punitive damage awards may
also be considered, although it is entitled to considerably less weight.” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d
525], internal citations omitted.) The court in Stevens suggested that the following
instruction be given if evidence of other punitive damage awards is introduced into
evidence:
If you determine that a defendant has already been assessed with punitive
damages based on the same conduct for which punitive damages are requested
in this case, you may consider whether punitive damages awarded in other cases
have sufficiently punished and made an example of the defendant. You must not
use the amount of punitive damages awarded in other cases to determine the
amount of the punitive damage award in this case, except to the extent you
determine that a lesser award, or no award at all, is justified in light of the
penalties already imposed. (Stevens, supra, 49 Cal.App.4th at p. 1663, fn. 7.)
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• Evidence of Profits or Financial Condition. Civil Code section 3295(d).
• “[Section 3295(d)] affects the order of proof at trial, precluding the admission of
evidence of defendants’ financial condition until after the jury has returned a
verdict for plaintiffs awarding actual damages and found that one or more
defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil
Code section 3294.” (City of El Monte v. Superior Court (1994) 29 Cal.App.4th
272, 274–275 [34 Cal.Rptr.2d 490], internal citations omitted.)
• “Evidence of the defendant’s financial condition is a prerequisite to an award of
punitive damages. In order to protect defendants from the premature disclosure
of their financial position when punitive damages are sought, the Legislature
enacted Civil Code section 3295.” (City of El Monte, supra, 29 Cal.App.4th at p.
276, internal citations omitted.)
• “[C]ourts have held it is reversible error to try the punitive damages issue to a
new jury after the jury which found liability has been excused.” (Rivera v.
Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal
citations omitted.)
• “The purpose of punitive damages is to punish wrongdoers and thereby deter the
commission of wrongful acts.” (Neal, supra, 21 Cal.3d at p. 928, fn. 13.)
• “Punitive damages are to be assessed in an amount which, depending upon the
defendant’s financial worth and other factors, will deter him and others from
committing similar misdeeds. Because compensatory damages are designed to
make the plaintiff ‘whole,’ punitive damages are a ‘windfall’ form of recovery.”
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
• “It follows that the wealthier the wrongdoing defendant, the larger the award of
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exemplary damages need be in order to accomplish the statutory objective.”
(Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65 [118 Cal.Rptr. 184,
529 P.2d 608].)
• “ ‘A plaintiff, upon establishing his case, is always entitled of right to
compensatory damages. But even after establishing a case where punitive
damages are permissible, he is never entitled to them. The granting or
withholding of the award of punitive damages is wholly within the control of the
jury, and may not legally be influenced by any direction of the court that in any
case a plaintiff is entitled to them. Upon the clearest proof of malice in fact, it is
still the exclusive province of the jury to say whether or not punitive damages
shall be awarded. A plaintiff is entitled to such damages only after the jury, in
the exercise of its untrammeled discretion, has made the award.’ ” (Brewer v.
Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 801 [197 P.2d
713], internal citation omitted.)
• “In light of our holding that evidence of a defendant’s financial condition is
essential to support an award of punitive damages, Evidence Code section 500
mandates that the plaintiff bear the burden of proof on the issue. A plaintiff
seeking punitive damages is not seeking a mere declaration by the jury that he is
entitled to punitive damages in the abstract. The plaintiff is seeking an award of
real money in a specific amount to be set by the jury. Because the award,
whatever its amount, cannot be sustained absent evidence of the defendant’s
financial condition, such evidence is ‘essential to the claim for relief.’ ” (Adams
v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318, 813 P.2d 1348],
internal citation omitted.)
• “A defendant is in the best position to know his or her financial condition, and
cannot avoid a punitive damage award by failing to cooperate with discovery
orders. [¶] A number of cases have held that noncompliance with a court order
to disclose financial condition precludes a defendant from challenging the
sufficiency of the evidence of a punitive damages award on appeal.” (Fernandes
v. Singh (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751].)
• “[T]he purpose of punitive damages is not served by financially destroying a
defendant. The purpose is to deter, not to destroy.” (Adams, supra, 54 Cal.3d at
p. 112.)
• “[A] punitive damages award is excessive if it is disproportionate to the
defendant’s ability to pay.” (Adams, supra, 54 Cal.3d at p. 112, internal citations
omitted.)
• “It has been recognized that punitive damages awards generally are not
permitted to exceed 10 percent of the defendant’s net worth.” (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510].)
• “While ‘there is no rigid formula and other factors may be dispositive especially
when net worth is manipulated and fails to reflect actual wealth,’ net worth is
often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff
seeking punitive damages must provide a balanced overview of the defendant’s
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financial condition; a selective presentation of financial condition evidence will
not survive scrutiny.” (Farmers & Merchants Trust Co. v. Vanetik (2019) 33
Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted.)
• “[N]et worth is not the only measure of a defendant’s wealth for punitive
damages purposes that is recognized by the California courts. ‘Indeed, it is likely
that blind adherence to any one standard [of determining wealth] could
sometimes result in awards which neither deter nor punish or which deter or
punish too much.’ ” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68,
79 [139 Cal.Rptr.3d 849].)
• “[T]he ‘net’ concept of the net worth metric remains critical. ‘In most cases,
evidence of earnings or profit alone are not sufficient “without examining the
liabilities side of the balance sheet.” [Citations.]’ ” (Soto v. BorgWarner Morse
TEC Inc. (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal
citations omitted.)
• “[W]e are afforded guidance by certain established principles, all of which are
grounded in the purpose and function of punitive damages. One factor is the
particular nature of the defendant’s acts in light of the whole record; clearly,
different acts may be of varying degrees of reprehensibility, and the more
reprehensible the act, the greater the appropriate punishment, assuming all other
factors are equal. Another relevant yardstick is the amount of compensatory
damages awarded; in general, even an act of considerable reprehensibility will
not be seen to justify a proportionally high amount of punitive damages if the
actual harm suffered thereby is small. Also to be considered is the wealth of the
particular defendant; obviously, the function of deterrence will not be served if
the wealth of the defendant allows him to absorb the award with little or no
discomfort. By the same token, of course, the function of punitive damages is
not served by an award which, in light of the defendant’s wealth and the gravity
of the particular act, exceeds the level necessary to properly punish and deter.”
(Neal, supra, 21 Cal.3d at p. 928, internal citations and footnote omitted.)
• “[T]he Constitution’s Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties or
those whom they directly represent, i.e., injury that it inflicts upon those who
are, essentially, strangers to the litigation.” (Philip Morris USA, supra, 549 U.S.
at p. 353.)
• “Evidence of actual harm to nonparties can help to show that the conduct that
harmed the plaintiff also posed a substantial risk of harm to the general public,
and so was particularly reprehensible—although counsel may argue in a
particular case that conduct resulting in no harm to others nonetheless posed a
grave risk to the public, or the converse. Yet for the reasons given above, a jury
may not go further than this and use a punitive damages verdict to punish a
defendant directly on account of harms it is alleged to have visited on
nonparties.” (Philip Morris USA, supra, 549 U.S. at p. 355.)
• “ ‘Due process does not permit courts, in the calculation of punitive damages, to
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adjudicate the merits of other parties’ hypothetical claims against a defendant
under the guise of the reprehensibility analysis . . . . Punishment on these bases
creates the possibility of multiple punitive damages awards for the same
conduct . . . .’ This does not mean, however, that the defendant’s similar
wrongful conduct toward others should not be considered in determining the
amount of punitive damages.” (Bullock v. Philip Morris USA, Inc. (2011) 198
Cal.App.4th 543, 560 [131 Cal.Rptr.3d 382].)
• “Though due process does not permit courts or juries, in the calculation of
punitive damages, to adjudicate the merits of other parties’ hypothetical claims
against a defendant under the guise of the reprehensibility analysis, this does not
mean that the defendant’s similar wrongful conduct toward others should not be
considered in determining the amount of punitive damages. . . . ‘[T]o consider
the defendant’s entire course of conduct in setting or reviewing a punitive
damages award, even in an individual plaintiff’s lawsuit, is not to punish the
defendant for its conduct toward others. An enhanced punishment for recidivism
does not directly punish the earlier offense; it is, rather, “ ‘ “a stiffened penalty
for the last crime, which is considered to be an aggravated offense because a
repetitive one.” ’ ” . . . By placing the defendant’s conduct on one occasion into
the context of a business practice or policy, an individual plaintiff can
demonstrate that the conduct toward him or her was more blameworthy and
warrants a stronger penalty to deter continued or repeated conduct of the same
nature.’ ” (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 986, fn. 10
[180 Cal.Rptr.3d 382], internal citations omitted.)
• “[A] specific instruction encompassing both the permitted and prohibited uses of
evidence of harm caused to others would be appropriate in the new trial if
requested by the parties. We believe that an instruction on these issues should
clearly distinguish between the permitted and prohibited uses of such evidence
and thus make clear to the jury the purposes for which it can and cannot
consider that evidence. A jury may consider evidence of harm caused to others
for the purpose of determining the degree of reprehensibility of a defendant’s
conduct toward the plaintiff in deciding the amount of punitive damages, but it
may not consider that evidence for the purpose of punishing the defendant
directly for harm caused to others. In our view, Judicial Council of California
Civil Jury Instructions (Aug. 2007 rev.) CACI Nos. 3940, 3942, 3943, 3945,
3947, and 3949 could convey this distinction better by stating more explicitly
that evidence of harm caused to others may be considered for the one purpose
but not for the other, and by providing that explanation together with the
reprehensibility factors rather than in connection with the reasonable relationship
issue.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 695, fn.
21 [71 Cal.Rptr.3d 775], internal citation omitted.)
• “ ‘[T]he most important indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant’s conduct.’ We have
instructed courts to determine the reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed to economic; the tortious
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conduct evinced an indifference to or a reckless disregard of the health or safety
of others; the target of the conduct had financial vulnerability; the conduct
involved repeated actions or was an isolated incident; and the harm was the
result of intentional malice, trickery, or deceit, or mere accident. The existence
of any one of these factors weighing in favor of a plaintiff may not be sufficient
to sustain a punitive damages award; and the absence of all of them renders any
award suspect.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S.
at p. 419, internal citation omitted.)
• “[I]n a case involving physical harm, the physical or physiological vulnerability
of the target of the defendant’s conduct is an appropriate factor to consider in
determining the degree of reprehensibility, particularly if the defendant
deliberately exploited that vulnerability.” (Bullock, supra, 198 Cal.App.4th at p.
562, internal citation omitted.)
• “[W]e have been reluctant to identify concrete constitutional limits on the ratio
between harm, or potential harm, to the plaintiff and the punitive damages
award. We decline again to impose a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant degree, will satisfy
due process. . . . [A]n award of more than four times the amount of
compensatory damages might be close to the line of constitutional
impropriety. . . . While these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution, than awards with ratios in range of 500 to 1 . . . .” (State Farm
Mutual Automobile Insurance Co., supra, 538 U.S. at pp. 424–425, internal
citation omitted.)
• “Nonetheless, because there are no rigid benchmarks that a punitive damages
award may not surpass, ratios greater than those we have previously upheld may
comport with due process where ‘a particularly egregious act has resulted in
only a small amount of economic damages.’ The converse is also true, however.
When compensatory damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost limit of the due process
guarantee. The precise award in any case, of course, must be based upon the
facts and circumstances of the defendant’s conduct and the harm to the plaintiff.”
(State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 425,
internal citation omitted.)
• “In determining whether a punitive damages award is unconstitutionally
excessive, Brandt fees may be included in the calculation of the ratio of punitive
to compensatory damages, regardless of whether the fees are awarded by the
trier of fact as part of its verdict or are determined by the trial court after the
verdict has been rendered.” (Nickerson v. Stonebridge Life Ins. Co. (2016) 63
Cal.4th 363, 368 [203 Cal.Rptr.3d 23, 371 P.3d 242].)
• “The decision to award punitive damages is exclusively the function of the trier
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of fact. So too is the amount of any punitive damage award. The relevant
considerations are the nature of the defendant’s conduct, the defendant’s wealth,
and the plaintiff’s actual damages.” (Gagnon v. Continental Casualty Co. (1989)
211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. 305], internal citations omitted.)
• “The wealth of a defendant cannot justify an otherwise unconstitutional punitive
damages award.” (State Farm Mutual Automobile Insurance Co., supra, 538
U.S. at p. 427, internal citation omitted.)
• “[I]n some cases, the defendant’s financial condition may combine with high
reprehensibility and a low compensatory award to justify an extraordinary ratio
between compensatory and punitive damages. [Citation.]” (Nickerson v.
Stonebridge Life Ins. Co. (Nickerson II) (2016) 5 Cal.App.5th 1, 26 [209
Cal.Rptr.3d 690].)
• “In light of our discussion, we conclude that even where, as here, punitive but
not compensatory damages are available to the plaintiff, the defendant is entitled
to an instruction that punitive damages must bear a reasonable relation to the
injury, harm, or damage actually suffered by the plaintiff and proved at trial.
Consequently, the trial court erred in failing to so instruct the jury.” (Gagnon,
supra, 211 Cal.App.3d at p. 1605.)
• “We conclude that the rule . . . that an award of exemplary damages must be
accompanied by an award of compensatory damages [or its equivalent] is still
sound. That rule cannot be deemed satisfied where the jury has made an express
determination not to award compensatory damages.” (Cheung v. Daley (1995) 35
Cal.App.4th 1673, 1677 [42 Cal.Rptr.2d 164], footnote omitted.)
• “With the focus on the plaintiff’s injury rather than the amount of compensatory
damages, the [‘reasonable relation’] rule can be applied even in cases where only
equitable relief is obtained or where nominal damages are awarded or, as here,
where compensatory damages are unavailable.” (Gagnon, supra, 211 Cal.App.3d
at p. 1605.)
• “The high court in TXO [TXO Production Corp., supra] and BMW [BMW of
North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d
809]] has refined the disparity analysis to take into account the potential loss to
plaintiffs, as where a scheme worthy of punitive damages does not fully succeed.
In such cases, the proper ratio would be the ratio of punitive damages to the
potential harm to plaintiff.” (Sierra Club Found. v. Graham (1999) 72
Cal.App.4th 1135, 1162, fn. 15 [85 Cal.Rptr.2d 726], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1727, 1729, 1731,
1743–1748, 1780–1796
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶¶ 3:1703–3:1708 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar 2d ed.) Punitive Damages, §§ 14.1–14.12,
14.37–14.39
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4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.20–54.25 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.141 et seq.,
64.174 et seq. (Matthew Bender)
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3943. Punitive Damages Against Employer or Principal for
Conduct of a Specific Agent or Employee—Trial Not Bifurcated
If you decide that [name of employee/agent]’s conduct caused [name of
plaintiff] harm, you must decide whether that conduct justifies an award
of punitive damages against [name of defendant] for [name of employee/
agent]’s conduct. The purposes of punitive damages are to punish a
wrongdoer for the conduct that harmed the plaintiff and to discourage
similar conduct in the future.
You may award punitive damages against [name of defendant] for [name
of employee/agent]’s conduct only if [name of plaintiff] proves by clear and
convincing evidence that [name of employee/agent] engaged in that
conduct with malice, oppression, or fraud.
“Malice” means that [name of employee/agent] acted with intent to cause
injury or that [name of employee/agent]’s conduct was despicable and was
done with a willful and knowing disregard of the rights or safety of
another. A person acts with knowing disregard when the person is aware
of the probable dangerous consequences of the person’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that [name of employee/agent]’s conduct was
despicable and subjected [name of plaintiff] to cruel and unjust hardship
in knowing disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that [name of employee/agent] intentionally
misrepresented or concealed a material fact and did so intending to
harm [name of plaintiff].
[Name of plaintiff] must also prove [one of] the following by clear and
convincing evidence:
1. [That [name of employee/agent] was an officer, a director, or a
managing agent of [name of defendant], who was acting on behalf
of [name of defendant]; [or]]
2. [That an officer, a director, or a managing agent of [name of
defendant] had advance knowledge of the unfitness of [name of
employee/agent] and employed [him/her/nonbinary pronoun] with a
knowing disregard of the rights or safety of others; [or]]
3. [That an officer, a director, or a managing agent of [name of
defendant] authorized [name of employee/agent]’s conduct; [or]]
4. [That an officer, a director, or a managing agent of [name of
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defendant] knew of [name of employee/agent]’s wrongful conduct
and adopted or approved the conduct after it occurred.]
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
There is no fixed formula for determining the amount of punitive
damages, and you are not required to award any punitive damages. If
you decide to award punitive damages, you should consider all of the
following factors in determining the amount:
(a) How reprehensible was [name of defendant]’s conduct? In deciding
how reprehensible [name of defendant]’s conduct was, you may
consider, among other factors:
1. Whether the conduct caused physical harm;
2. Whether [name of defendant] disregarded the health or safety
of others;
3. Whether [name of plaintiff] was financially weak or vulnerable
and [name of defendant] knew [name of plaintiff] was financially
weak or vulnerable and took advantage of [him/her/nonbinary
pronoun/it];
4. Whether [name of defendant]’s conduct involved a pattern or
practice; and
5. Whether [name of defendant] acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive
damages and [name of plaintiff]’s harm [or between the amount of
punitive damages and potential harm to [name of plaintiff] that
[name of defendant] knew was likely to occur because of [his/her/
nonbinary pronoun/its] conduct]?
(c) In view of [name of defendant]’s financial condition, what amount
is necessary to punish [him/her/nonbinary pronoun/it] and
discourage future wrongful conduct? You may not increase the
punitive award above an amount that is otherwise appropriate
merely because [name of defendant] has substantial financial
resources. [Any award you impose may not exceed [name of
defendant]’s ability to pay.]
[Punitive damages may not be used to punish [name of defendant] for the
impact of [his/her/nonbinary pronoun/its] alleged misconduct on persons
other than [name of plaintiff].]
New September 2003; Revised April 2004, October 2004, December 2005, June
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2006, April 2007, August 2007, October 2008, May 2020
Directions for Use
This instruction is intended for use when the plaintiff is seeking to hold only an
employer or principal liable for punitive damages based on the conduct of a specific
employee or agent. When the plaintiff is seeking punitive damages from both the
employer/principal and the employee/agent, use CACI No. 3947, Punitive
Damages—Individual and Entity Defendants—Trial Not Bifurcated. When punitive
damages are sought against a corporation or other entity for the conduct of its
directors, officers, or managing agents, use CACI No. 3945, Punitive
Damages—Entity Defendant—Trial Not Bifurcated.
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
Read the bracketed language at the end of the first sentence of factor (b) only if
there is evidence that the conduct of defendant that allegedly gives rise to liability
and punitive damages either caused or foreseeably threatened to cause harm to
plaintiff that would not be included in an award of compensatory damages. (Simon
v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379,
113 P.3d 63].) The bracketed phrase concerning “potential harm” might be
appropriate, for example, if damages actually caused by the defendant’s acts are not
recoverable because they are barred by statute (id. at p. 1176, citing Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. 389, 582 P.2d 980] [in a
bad faith insurance case, plaintiff died before judgment, precluding her estate’s
recovery of emotional distress damages]), or if the harm caused by defendant’s acts
could have been great, but by chance only slight harm was inflicted. (Simon, supra,
35 Cal.4th at p. 1177, citing TXO Production Corp. v. Alliance Resources Corp.
(1993) 509 U.S. 443, 459 [113 S.Ct. 2711, 125 L.Ed.2d 366] [considering the
hypothetical of a person wildly firing a gun into a crowd but by chance only
damaging a pair of glasses].) The bracketed phrase should not be given if an award
of compensatory damages is the “true measure” of the harm or potential harm
caused by defendant’s wrongful acts. (Simon, supra, 35 Cal.4th at pp. 1178–1179
[rejecting consideration for purposes of assessing punitive damages of the plaintiff’s
loss of the benefit of the bargain if the jury had found that there was no binding
contract].)
Read the optional final sentence of factor (c) only if the defendant has presented
relevant evidence regarding that issue.
Read the optional final sentence if there is a possibility that in arriving at an amount
of punitive damages, the jury might consider harm that the defendant’s conduct may
have caused to nonparties. (See Philip Morris USA v. Williams (2007) 549 U.S. 346,
353–354 [127 S.Ct. 1057, 166 L.Ed.2d 940].) Harm to others may be relevant to
determining reprehensibility based on factors (a)(2) (disregard of health or safety of
others) and (a)(4) (pattern or practice). (See State Farm Mutual Automobile
Insurance Co. v. Campbell (2003) 538 U.S. 408, 419 [123 S.Ct. 1513, 155 L.Ed.2d
585].)
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If any of the alternative grounds for seeking punitive damages are inapplicable to
the facts of the case, they may be omitted.
“A jury must be instructed . . . that it may not use evidence of out-of-state conduct
to punish a defendant for action that was lawful in the jurisdiction where it
occurred.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p.
422.) An instruction on this point should be included within this instruction if
appropriate to the facts.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
See CACI No. 3940, Punitive Damages—Individual Defendant—Trial Not
Bifurcated, for additional sources and authority.
Courts have stated that “[p]unitive damages previously imposed for the same
conduct are relevant in determining the amount of punitive damages required to
sufficiently punish and deter. The likelihood of future punitive damage awards may
also be considered, although it is entitled to considerably less weight.” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d
525], internal citations omitted.) The court in Stevens suggested that the following
instruction be given if evidence of other punitive damage awards is introduced into
evidence:
If you determine that a defendant has already been assessed with punitive
damages based on the same conduct for which punitive damages are requested
in this case, you may consider whether punitive damages awarded in other cases
have sufficiently punished and made an example of the defendant. You must not
use the amount of punitive damages awarded in other cases to determine the
amount of the punitive damage award in this case, except to the extent you
determine that a lesser award, or no award at all, is justified in light of the
penalties already imposed. (Stevens, supra, 49 Cal.App.4th at p. 1663, fn. 7.)
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• “[E]vidence of ratification of [agent’s] actions by Hamilton, and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “Subdivision (b) is not a model of clarity, but in light of California’s history of
employer liability for punitive damages and of the Legislature’s reasons for
enacting subdivision (b), we have no doubt that it does no more than codify and
refine existing law. Subdivision (b) thus authorizes the imposition of punitive
damages on an employer in three situations: (1) when an employee was guilty of
oppression, fraud or malice, and the employer with advance knowledge of the
unfitness of the employee employed him or her with a conscious disregard of the
rights or safety of others, (2) when an employee was guilty of oppression, fraud
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or malice, and the employer authorized or ratified the wrongful conduct, or (3)
when the employer was itself guilty of the oppression, fraud or malice.” (Weeks
v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151 [74 Cal.Rptr.2d 510].)
• “ ‘California has traditionally allowed punitive damages to be assessed against an
employer (or principal) for the acts of an employee (or agent) only where the
circumstances indicate that the employer himself was guilty of fraud, oppression,
or malice. Thus, even before section 3294, subdivision (b) was added to the
Civil Code in 1980, the courts required evidence that the employer authorized or
ratified a malicious act, personally committed such an act, or wrongfully hired or
retained an unfit employee.’ The ‘additional’ burden on a plaintiff seeking
punitive damages from an employer is to show not only that an employee acted
with oppression, fraud or malice, but that the employer engaged in conduct
defined in subdivision (b).” (Weeks, supra, 63 Cal.App.4th at p. 1154, internal
citation omitted.)
• “Civil Code section 3294, subdivision (b) does not authorize an award of
punitive damages against an employer for the employee’s wrongful conduct. It
authorizes an award of punitive damages against an employer for the employer’s
own wrongful conduct. Liability under subdivision (b) is vicarious only to the
extent that the employer is liable for the actions of its officer, director or
managing agent in hiring or controlling the offending employee, in ratifying the
offense or in acting with oppression, fraud or malice. It is not vicarious in the
sense that the employer is liable for the wrongful conduct of the offending
employee.” (Weeks, supra, 63 Cal.App.4th at pp. 1154–1155.)
• “An award of punitive damages is not supported by a verdict based on breach of
contract, even where the defendant’s conduct in breaching the contract was
wilful, fraudulent, or malicious. Even in those cases in which a separate tort
action is alleged, if there is ‘but one verdict based upon contract’ a punitive
damage award is improper.” (Myers Building Industries, Ltd. v. Interface
Technology, Inc. (1993) 13 Cal.App.4th 949, 960 [17 Cal.Rptr.2d 242], internal
citations omitted.)
• “ ‘[T]he most important indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant’s conduct.’ We have
instructed courts to determine the reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health or safety
of others; the target of the conduct had financial vulnerability; the conduct
involved repeated actions or was an isolated incident; and the harm was the
result of intentional malice, trickery, or deceit, or mere accident. The existence
of any one of these factors weighing in favor of a plaintiff may not be sufficient
to sustain a punitive damages award; and the absence of all of them renders any
award suspect.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S.
at p. 419, internal citation omitted.)
• “[I]n a case involving physical harm, the physical or physiological vulnerability
of the target of the defendant’s conduct is an appropriate factor to consider in
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determining the degree of reprehensibility, particularly if the defendant
deliberately exploited that vulnerability.” (Bullock v. Philip Morris USA, Inc.
(2011) 198 Cal.App.4th 543, 562 [131 Cal.Rptr.3d 382], internal citation
omitted.)
• “[W]e have been reluctant to identify concrete constitutional limits on the ratio
between harm, or potential harm, to the plaintiff and the punitive damages
award. We decline again to impose a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant degree, will satisfy
due process. . . . [A]n award of more than four times the amount of
compensatory damages might be close to the line of constitutional
impropriety. . . . While these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution, than awards with ratios in range of 500 to 1 . . . .” (State Farm
Mutual Automobile Insurance Co., supra, 538 U.S. at pp. 424–425, internal
citation omitted.)
• “Nonetheless, because there are no rigid benchmarks that a punitive damages
award may not surpass, ratios greater than those we have previously upheld may
comport with due process where ‘a particularly egregious act has resulted in
only a small amount of economic damages.’ The converse is also true, however.
When compensatory damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost limit of the due process
guarantee. The precise award in any case, of course, must be based upon the
facts and circumstances of the defendant’s conduct and the harm to the plaintiff.”
(State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 425,
internal citation omitted.)
• “In determining whether a punitive damages award is unconstitutionally
excessive, Brandt fees may be included in the calculation of the ratio of punitive
to compensatory damages, regardless of whether the fees are awarded by the
trier of fact as part of its verdict or are determined by the trial court after the
verdict has been rendered.” (Nickerson v. Stonebridge Life Ins. Co. (2016) 63
Cal.4th 363, 368 [203 Cal.Rptr.3d 23, 371 P.3d 242].)
• “[T]he Constitution’s Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties or
those whom they directly represent, i.e., injury that it inflicts upon those who
are, essentially, strangers to the litigation.” (Philip Morris USA, supra, 549 U.S.
at p. 353.)
• “Evidence of actual harm to nonparties can help to show that the conduct that
harmed the plaintiff also posed a substantial risk of harm to the general public,
and so was particularly reprehensible—although counsel may argue in a
particular case that conduct resulting in no harm to others nonetheless posed a
grave risk to the public, or the converse. Yet for the reasons given above, a jury
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may not go further than this and use a punitive damages verdict to punish a
defendant directly on account of harms it is alleged to have visited on
nonparties.” (Philip Morris USA, supra, 549 U.S. at p. 355.)
• “ ‘Due process does not permit courts, in the calculation of punitive damages, to
adjudicate the merits of other parties’ hypothetical claims against a defendant
under the guise of the reprehensibility analysis . . . . Punishment on these bases
creates the possibility of multiple punitive damages awards for the same
conduct . . . .’ This does not mean, however, that the defendant’s similar
wrongful conduct toward others should not be considered in determining the
amount of punitive damages.” (Bullock, supra, 198 Cal.App.4th at p. 560.)
• “Though due process does not permit courts or juries, in the calculation of
punitive damages, to adjudicate the merits of other parties’ hypothetical claims
against a defendant under the guise of the reprehensibility analysis, this does not
mean that the defendant’s similar wrongful conduct toward others should not be
considered in determining the amount of punitive damages. . . . ‘[T]o consider
the defendant’s entire course of conduct in setting or reviewing a punitive
damages award, even in an individual plaintiff’s lawsuit, is not to punish the
defendant for its conduct toward others. An enhanced punishment for recidivism
does not directly punish the earlier offense; it is, rather, “ ‘ “a stiffened penalty
for the last crime, which is considered to be an aggravated offense because a
repetitive one.” ’ ” . . . By placing the defendant’s conduct on one occasion into
the context of a business practice or policy, an individual plaintiff can
demonstrate that the conduct toward him or her was more blameworthy and
warrants a stronger penalty to deter continued or repeated conduct of the same
nature.’ ” (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 986, fn. 10
[180 Cal.Rptr.3d 382], internal citations omitted.)
• “[A] specific instruction encompassing both the permitted and prohibited uses of
evidence of harm caused to others would be appropriate in the new trial if
requested by the parties. We believe that an instruction on these issues should
clearly distinguish between the permitted and prohibited uses of such evidence
and thus make clear to the jury the purposes for which it can and cannot
consider that evidence. A jury may consider evidence of harm caused to others
for the purpose of determining the degree of reprehensibility of a defendant’s
conduct toward the plaintiff in deciding the amount of punitive damages, but it
may not consider that evidence for the purpose of punishing the defendant
directly for harm caused to others. In our view, Judicial Council of California
Civil Jury Instructions (Aug. 2007 rev.) CACI Nos. 3940, 3942, 3943, 3945,
3947, and 3949 could convey this distinction better by stating more explicitly
that evidence of harm caused to others may be considered for the one purpose
but not for the other, and by providing that explanation together with the
reprehensibility factors rather than in connection with the reasonable relationship
issue.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 695, fn.
21 [71 Cal.Rptr.3d 775], internal citation omitted.)
• “In light of our holding that evidence of a defendant’s financial condition is
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essential to support an award of punitive damages, Evidence Code section 500
mandates that the plaintiff bear the burden of proof on the issue. A plaintiff
seeking punitive damages is not seeking a mere declaration by the jury that he is
entitled to punitive damages in the abstract. The plaintiff is seeking an award of
real money in a specific amount to be set by the jury. Because the award,
whatever its amount, cannot be sustained absent evidence of the defendant’s
financial condition, such evidence is ‘essential to the claim for relief.’ ” (Adams
v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318, 813 P.2d 1348],
internal citation omitted.)
• “A defendant is in the best position to know his or her financial condition, and
cannot avoid a punitive damage award by failing to cooperate with discovery
orders. [¶] A number of cases have held that noncompliance with a court order
to disclose financial condition precludes a defendant from challenging the
sufficiency of the evidence of a punitive damages award on appeal.” (Fernandes
v. Singh (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751].)
• “[T]he purpose of punitive damages is not served by financially destroying a
defendant. The purpose is to deter, not to destroy.” (Adams, supra, 54 Cal.3d at
p. 112.)
• “[A] punitive damages award is excessive if it is disproportionate to the
defendant’s ability to pay.” (Adams, supra, 54 Cal.3d at p. 112, internal citations
omitted.)
• “It has been recognized that punitive damages awards generally are not
permitted to exceed 10 percent of the defendant’s net worth.” (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510].)
• “While ‘there is no rigid formula and other factors may be dispositive especially
when net worth is manipulated and fails to reflect actual wealth,’ net worth is
often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff
seeking punitive damages must provide a balanced overview of the defendant’s
financial condition; a selective presentation of financial condition evidence will
not survive scrutiny.” (Farmers & Merchants Trust Co. v. Vanetik (2019) 33
Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted.)
• “[N]et worth is not the only measure of a defendant’s wealth for punitive
damages purposes that is recognized by the California courts. ‘Indeed, it is likely
that blind adherence to any one standard [of determining wealth] could
sometimes result in awards which neither deter nor punish or which deter or
punish too much.’ ” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68,
79 [139 Cal.Rptr.3d 849].)
• “[T]he ‘net’ concept of the net worth metric remains critical. ‘In most cases,
evidence of earnings or profit alone are not sufficient “without examining the
liabilities side of the balance sheet.” [Citations.]’ ” (Soto v. BorgWarner Morse
TEC Inc. (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal
citations omitted.)
• “The decision to award punitive damages is exclusively the function of the trier
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of fact. So too is the amount of any punitive damage award. The relevant
considerations are the nature of the defendant’s conduct, the defendant’s wealth,
and the plaintiff’s actual damages.” (Gagnon v. Continental Casualty Co. (1989)
211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. 305], internal citations omitted.)
• “The wealth of a defendant cannot justify an otherwise unconstitutional punitive
damages award.” (State Farm Mutual Automobile Insurance Co., supra, 538
U.S. at p. 427, internal citation omitted.)
• “[I]n some cases, the defendant’s financial condition may combine with high
reprehensibility and a low compensatory award to justify an extraordinary ratio
between compensatory and punitive damages. [Citation.]” (Nickerson v.
Stonebridge Life Ins. Co. (Nickerson II) (2016) 5 Cal.App.5th 1, 26 [209
Cal.Rptr.3d 690].)
• “[P]unitive damages are not assessed against employers on a pure respondeat
superior basis. Some evidence of fault by the employer itself is also required.”
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 724, fn. 11 [34
Cal.Rptr.2d 898, 882 P.2d 894].)
• “Subdivision (b) . . . governs awards of punitive damages against employers,
and permits an award for the conduct described there without an additional
finding that the employer engaged in oppression, fraud or malice.” (Weeks,
supra, 63 Cal.App.4th at p. 1137.)
• “Section 3294 is no longer silent on who may be responsible for imputing
punitive damages to a corporate employer. For corporate punitive damages
liability, section 3294, subdivision (b), requires that the wrongful act giving rise
to the exemplary damages be committed by an ‘officer, director, or managing
agent.’ ” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19,
981 P.2d 944].)
• “[I]n performing, ratifying, or approving the malicious conduct, the agent must
be acting as the organization’s representative, not in some other capacity.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 723.)
• The concept of “managing agent” “assumes that such individual was acting in a
corporate or employment capacity when the conduct giving rise to the punitive
damages claim against the employer occurred.” (College Hospital, Inc., supra, 8
Cal.4th at p. 723.)
• “No purpose would be served by punishing the employer for an employee’s
conduct that is wholly unrelated to its business or to the employee’s duties
therein.” (College Hospital, Inc., supra, 8 Cal.4th at pp. 723–724.)
• “[T]he determination of whether certain employees are managing agents ‘ “does
not necessarily hinge on their ‘level’ in the corporate hierarchy. Rather, the
critical inquiry is the degree of discretion the employees possess in making
decisions . . . .” ’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886 [164 Cal.Rptr.3d 811].)
• “Although it is generally true, . . . that an employee’s hierarchy in a corporation
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is not necessarily determinative of his or her status as a managing agent of a
corporation, evidence showing an employee’s hierarchy and job duties,
responsibilities, and authority may be sufficient, absent conclusive proof to the
contrary, to support a reasonable inference by a trier of fact that the employee is
a managing agent of a corporation.” (Davis v. Kiewit Pacific Co. (2013) 220
Cal.App.4th 358, 370 [162 Cal.Rptr.3d 805].)
• “[W]e conclude the Legislature intended the term ‘managing agent’ to include
only those corporate employees who exercise substantial independent authority
and judgment in their corporate decisionmaking so that their decisions ultimately
determine corporate policy. The scope of a corporate employee’s discretion and
authority under our test is therefore a question of fact for decision on a case-by-
case basis.” (White, supra, 21 Cal.4th at pp. 566–567.)
• “In order to demonstrate that an employee is a true managing agent under
section 3294, subdivision (b), a plaintiff seeking punitive damages would have to
show that the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th at p.
577.)
• “ ‘[C]orporate policy’ is the general principles which guide a corporation, or
rules intended to be followed consistently over time in corporate operations. A
‘managing agent’ is one with substantial authority over decisions that set these
general principles and rules.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160,
167–168 [99 Cal.Rptr.2d 435].)
• “The key inquiry thus concerns the employee’s authority to change or establish
corporate policy. The fact that an employee has a supervisory position with the
power to terminate employees under his or her control does not, by itself, render
the employee a managing agent. Nor does the fact that an employee supervises a
large number of employees necessarily establish that status.” (CRST, Inc. v.
Superior Court (2017) 11 Cal.App.5th 1255, 1273 [218 Cal.Rptr.3d 664].)
• “ ‘[R]atification’ is the ‘[c]onfirmation and acceptance of a previous act.’ A
corporation cannot confirm and accept that which it does not actually know
about.” (Cruz, supra, 83 Cal.App.4th at p. 168, internal citations omitted.)
• “For purposes of determining an employer’s liability for punitive damages,
ratification generally occurs where, under the particular circumstances, the
employer demonstrates an intent to adopt or approve oppressive, fraudulent, or
malicious behavior by an employee in the performance of his job duties.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 726.)
• “Corporate ratification in the punitive damages context requires actual
knowledge of the conduct and its outrageous nature.” (College Hospital, Inc.,
supra, 8 Cal.4th at p. 726.)
• “The high court in TXO [TXO Production Corp., supra] and BMW [BMW of
North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d
809]] has refined the disparity analysis to take into account the potential loss to
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plaintiffs, as where a scheme worthy of punitive damages does not fully succeed.
In such cases, the proper ratio would be the ratio of punitive damages to the
potential harm to plaintiff.” (Sierra Club Found. v. Graham (1999) 72
Cal.App.4th 1135, 1162, fn. 15 [85 Cal.Rptr.2d 726], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶¶ 3:1703–3:1708 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar 2d ed.) Punitive Damages, §§ 14.1–14.12,
14.20–14.23, 14.39
4 Levy et al., California Torts, Ch. 54, Punitive Damages, § 54.07 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.141 et seq.,
64.174 et seq. (Matthew Bender)
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3944. Punitive Damages Against Employer or Principal for
Conduct of a Specific Agent or Employee—Bifurcated Trial (First
Phase)
If you decide that [name of employee/agent]’s conduct caused [name of
plaintiff] harm, you must decide whether that conduct justifies an award
of punitive damages against [name of defendant] for [name of employee/
agent]’s conduct. At this time, you must decide whether [name of plaintiff]
has proved by clear and convincing evidence that [name of
employee/agent] engaged in that conduct with malice, oppression, or
fraud. The amount of punitive damages, if any, will be decided later.
“Malice” means that [name of employee/agent] acted with intent to cause
injury or that [name of employee/agent]’s conduct was despicable and was
done with a willful and knowing disregard of the rights or safety of
another. A person acts with knowing disregard when the person is aware
of the probable dangerous consequences of the person’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that [name of employee/agent]’s conduct was
despicable and subjected [name of plaintiff] to cruel and unjust hardship
in knowing disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that [name of employee/agent] intentionally
misrepresented or concealed a material fact and did so intending to
harm [name of plaintiff].
[Name of plaintiff] must also prove [one of] the following by clear and
convincing evidence:
1. [That [name of employee/agent] was an officer, a director, or a
managing agent of [name of defendant] who was acting on behalf
of [name of defendant]; [or]]
2. [That an officer, a director, or a managing agent of [name of
defendant] had advance knowledge of the unfitness of [name of
employee/agent] and employed [him/her/nonbinary pronoun] with a
knowing disregard of the rights or safety of others; [or]]
3. [That an officer, a director, or a managing agent of [name of
defendant] authorized [name of employee/agent]’s conduct; [or]]
4. [That an officer, a director, or a managing agent of [name of
defendant] knew of [name of employee/agent]’s wrongful conduct
and adopted or approved the conduct after it occurred.]
An employee is a “managing agent” if the employee exercises substantial
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independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
New September 2003; Revised April 2004, December 2005, May 2020
Directions for Use
CACI No. 3942, Punitive Damages—Individual Defendant—Bifurcated Trial
(Second Phase) may be used for the second phase of a bifurcated trial.
This instruction is intended for use when the plaintiff is seeking to hold only an
employer or principal liable for punitive damages based on the conduct of a specific
employee or agent. When the plaintiff is seeking punitive damages from both the
employer/principal and the employee/agent, use CACI No. 3948, Punitive
Damages—Individual and Corporate Defendants (Corporate Liability Based on Acts
of Named Individual)—Bifurcated Trial (First Phase). When punitive damages are
sought against a corporation or other entity for the conduct of its directors, officers,
and managing agents, use CACI No. 3946, Punitive Damages—Entity
Defendant—Bifurcated Trial (First Phase).
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
If any of the alternative grounds for seeking punitive damages are inapplicable to
the facts of the case, they may be omitted.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• Deferral of Financial Condition Evidence to Second Stage. Civil Code section
3295(d).
• “[E]vidence of ratification of [agent’s] actions by [defendant], and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “[Section 3295(d)] affects the order of proof at trial, precluding the admission of
evidence of defendants’ financial condition until after the jury has returned a
verdict for plaintiffs awarding actual damages and found that one or more
defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil
Code section 3294.” (City of El Monte v. Superior Court (1994) 29 Cal.App.4th
272, 274–275 [34 Cal.Rptr.2d 490].)
• “Evidence of the defendant’s financial condition is a prerequisite to an award of
punitive damages. In order to protect defendants from the premature disclosure
of their financial position when punitive damages are sought, the Legislature
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enacted Civil Code section 3295.” (City of El Monte, supra, 29 Cal.App.4th at p.
276.)
• “[C]ourts have held it is reversible error to try the punitive damages issue to a
new jury after the jury which found liability has been excused.” (Rivera v.
Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144].)
• “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
and he or she willfully fails to avoid such consequences. [Citation.] Malice may
be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences. [Citation.]’ ” (Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [164 Cal.Rptr.3d 112].)
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
• “Section 3294 is no longer silent on who may be responsible for imputing
punitive damages to a corporate employer. For corporate punitive damages
liability, section 3294, subdivision (b), requires that the wrongful act giving rise
to the exemplary damages be committed by an ‘officer, director, or managing
agent.’ ” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19,
981 P.2d 944].)
• “[I]n performing, ratifying, or approving the malicious conduct, the agent must
be acting as the organization’s representative, not in some other capacity.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 723.)
• “[T]he concept [of managing agent] assumes that such individual was acting in a
corporate or employment capacity when the conduct giving rise to the punitive
damages claim against the employer occurred.” (College Hospital, Inc., supra, 8
Cal.4th at p. 723.)
• “No purpose would be served by punishing the employer for an employee’s
conduct that is wholly unrelated to its business or to the employee’s duties
therein.” (College Hospital, Inc., supra, 8 Cal.4th at pp. 723–724.)
• “[T]he determination of whether certain employees are managing agents ‘ “does
not necessarily hinge on their ‘level’ in the corporate hierarchy. Rather, the
critical inquiry is the degree of discretion the employees possess in making
decisions . . . .” ’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886 [164 Cal.Rptr.3d 811].)
• “Although it is generally true . . . that an employee’s hierarchy in a corporation
is not necessarily determinative of his or her status as a managing agent of a
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corporation, evidence showing an employee’s hierarchy and job duties,
responsibilities, and authority may be sufficient, absent conclusive proof to the
contrary, to support a reasonable inference by a trier of fact that the employee is
a managing agent of a corporation.” (Davis v. Kiewit Pacific Co. (2013) 220
Cal.App.4th 358, 370 [162 Cal.Rptr.3d 805].)
• “[W]e conclude the Legislature intended the term ‘managing agent’ to include
only those corporate employees who exercise substantial independent authority
and judgment in their corporate decisionmaking so that their decisions ultimately
determine corporate policy. The scope of a corporate employee’s discretion and
authority under our test is therefore a question of fact for decision on a case-by-
case basis.” (White, supra, 21 Cal.4th at pp. 566–567.)
• “In order to demonstrate that an employee is a true managing agent under
section 3294, subdivision (b), a plaintiff seeking punitive damages would have to
show that the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th at p.
577.)
• “ ‘[C]orporate policy’ is the general principles which guide a corporation, or
rules intended to be followed consistently over time in corporate operations. A
‘managing agent’ is one with substantial authority over decisions that set these
general principles and rules.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160,
167–168 [99 Cal.Rptr.2d 435].)
• “The key inquiry thus concerns the employee’s authority to change or establish
corporate policy. The fact that an employee has a supervisory position with the
power to terminate employees under his or her control does not, by itself, render
the employee a managing agent. Nor does the fact that an employee supervises a
large number of employees necessarily establish that status.” (CRST, Inc. v.
Superior Court (2017) 11 Cal.App.5th 1255, 1273 [218 Cal.Rptr.3d 664].)
• “ ‘[R]atification’ is the ‘[c]onfirmation and acceptance of a previous act.’ A
corporation cannot confirm and accept that which it does not actually know
about.” (Cruz, supra, 83 Cal.App.4th at p. 168.)
• “For purposes of determining an employer’s liability for punitive damages,
ratification generally occurs where, under the particular circumstances, the
employer demonstrates an intent to adopt or approve oppressive, fraudulent, or
malicious behavior by an employee in the performance of his job duties.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 726.)
• “Corporate ratification in the punitive damages context requires actual
knowledge of the conduct and its outrageous nature.” (College Hospital, Inc.,
supra, 8 Cal.4th at p. 726.)
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
California Tort Damages (Cont.Ed.Bar 1988) Punitive Damages, §§ 14.13–14.14,
14.23
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.07, 54.24[4][d]
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.24 et seq.
(Matthew Bender)
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3945. Punitive Damages—Entity Defendant—Trial Not Bifurcated
If you decide that [name of defendant]’s conduct caused [name of plaintiff]
harm, you must decide whether that conduct justifies an award of
punitive damages. The purposes of punitive damages are to punish a
wrongdoer for the conduct that harmed the plaintiff and to discourage
similar conduct in the future.
You may award punitive damages against [name of defendant] only if
[name of plaintiff] proves that [name of defendant] engaged in that conduct
with malice, oppression, or fraud. To do this, [name of plaintiff] must
prove [one of] the following by clear and convincing evidence:
1. [That the conduct constituting malice, oppression, or fraud was
committed by one or more officers, directors, or managing agents
of [name of defendant], who acted on behalf of [name of defendant];
[or]]
2. [That the conduct constituting malice, oppression, or fraud was
authorized by one or more officers, directors, or managing agents
of [name of defendant]; [or]]
3. [That one or more officers, directors, or managing agents of
[name of defendant] knew of the conduct constituting malice,
oppression, or fraud and adopted or approved that conduct after
it occurred.]
“Malice” means that [name of defendant] acted with intent to cause
injury or that [name of defendant]’s conduct was despicable and was done
with a willful and knowing disregard of the rights or safety of another. A
person acts with knowing disregard when the person is aware of the
probable dangerous consequences of the person’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that [name of defendant]’s conduct was despicable
and subjected [name of plaintiff] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that [name of defendant] intentionally misrepresented or
concealed a material fact and did so intending to harm [name of
plaintiff].
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
There is no fixed formula for determining the amount of punitive
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damages, and you are not required to award any punitive damages. If
you decide to award punitive damages, you should consider all of the
following factors in determining the amount:
(a) How reprehensible was [name of defendant]’s conduct? In deciding
how reprehensible [name of defendant]’s conduct was, you may
consider, among other factors:
1. Whether the conduct caused physical harm;
2. Whether [name of defendant] disregarded the health or safety
of others;
3. Whether [name of plaintiff] was financially weak or vulnerable
and [name of defendant] knew [name of plaintiff] was financially
weak or vulnerable and took advantage of [him/her/nonbinary
pronoun/it];
4. Whether [name of defendant]’s conduct involved a pattern or
practice; and
5. Whether [name of defendant] acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive
damages and [name of plaintiff]’s harm [or between the amount of
punitive damages and potential harm to [name of plaintiff] that
[name of defendant] knew was likely to occur because of [his/her/
nonbinary pronoun/its] conduct]?
(c) In view of [name of defendant]’s financial condition, what amount
is necessary to punish [him/her/nonbinary pronoun/it] and
discourage future wrongful conduct? You may not increase the
punitive award above an amount that is otherwise appropriate
merely because [name of defendant] has substantial financial
resources. [Any award you impose may not exceed [name of
defendant]’s ability to pay.]
[Punitive damages may not be used to punish [name of defendant] for the
impact of [his/her/nonbinary pronoun/its] alleged misconduct on persons
other than [name of plaintiff].]
New September 2004; Revised April 2004, June 2004, December 2005, June 2006,
April 2007, August 2007, October 2008, May 2020
Directions for Use
This instruction is intended for use when the plaintiff is seeking punitive damages
against a corporation or other entity for the conduct of its directors, officers, or
managing agents. When the plaintiff seeks to hold an employer or principal liable
for the conduct of a specific employee or agent, use CACI No. 3943, Punitive
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Damages Against Employer or Principal for Conduct of a Specific Agent or
Employee—Trial Not Bifurcated. When the plaintiff is seeking punitive damages
from both the employer/principal and the employee/agent, use CACI No. 3947,
Punitive Damages—Individual and Entity Defendants—Trial Not Bifurcated.
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
Read the bracketed language at the end of the first sentence of factor (b) only if
there is evidence that the conduct of defendant that allegedly gives rise to liability
and punitive damages either caused or foreseeably threatened to cause harm to
plaintiff that would not be included in an award of compensatory damages. (Simon
v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379,
113 P.3d 63].) The bracketed phrase concerning “potential harm” might be
appropriate, for example, if damages actually caused by the defendant’s acts are not
recoverable because they are barred by statute (id. at p. 1176, citing Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. 389, 582 P.2d 980] [in a
bad faith insurance case, plaintiff died before judgment, precluding her estate’s
recovery of emotional distress damages]), or if the harm caused by defendant’s acts
could have been great, but by chance only slight harm was inflicted. (Simon, supra,
35 Cal.4th at p. 1177, citing TXO Production Corp. v. Alliance Resources Corp.
(1993) 509 U.S. 443, 459 [113 S.Ct. 2711, 125 L.Ed.2d 366] [considering the
hypothetical of a person wildly firing a gun into a crowd but by chance only
damaging a pair of glasses].) The bracketed phrase should not be given if an award
of compensatory damages is the “true measure” of the harm or potential harm
caused by defendant’s wrongful acts. (Simon, supra, 35 Cal.4th at pp. 1178–1179
[rejecting consideration for purposes of assessing punitive damages of the plaintiff’s
loss of the benefit of the bargain if the jury had found that there was no binding
contract].)
Read the optional final sentence of factor (c) only if the defendant has presented
relevant evidence regarding that issue.
Read the optional final sentence if there is a possibility that in arriving at an amount
of punitive damages, the jury might consider harm that the defendant’s conduct may
have caused to nonparties. (See Philip Morris USA v. Williams (2007) 549 U.S. 346,
353–354 [127 S.Ct. 1057, 166 L.Ed.2d 940].) Harm to others may be relevant to
determining reprehensibility based on factors (a)(2) (disregard of health or safety of
others) and (a)(4) (pattern or practice). (See State Farm Mutual Automobile
Insurance Co. v. Campbell (2003) 538 U.S. 408, 419 [123 S.Ct. 1513, 155 L.Ed.2d
585].)
If any of the alternative grounds for seeking punitive damages are inapplicable to
the facts of the case, they may be omitted.
See CACI No. 3940, Punitive Damages—Individual Defendant—Trial Not
Bifurcated, for additional sources and authority.
“A jury must be instructed . . . that it may not use evidence of out-of-state conduct
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to punish a defendant for action that was lawful in the jurisdiction where it
occurred.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p.
422.) An instruction on this point should be included within this instruction if
appropriate to the facts.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Courts have stated that “[p]unitive damages previously imposed for the same
conduct are relevant in determining the amount of punitive damages required to
sufficiently punish and deter. The likelihood of future punitive damage awards may
also be considered, although it is entitled to considerably less weight.” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d
525].) The court in Stevens suggested that the following instruction be given if
evidence of other punitive damage awards is introduced into evidence:
If you determine that a defendant has already been assessed with punitive
damages based on the same conduct for which punitive damages are requested
in this case, you may consider whether punitive damages awarded in other cases
have sufficiently punished and made an example of the defendant. You must not
use the amount of punitive damages awarded in other cases to determine the
amount of the punitive damage award in this case, except to the extent you
determine that a lesser award, or no award at all, is justified in light of the
penalties already imposed. (Stevens, supra, 49 Cal.App.4th at p. 1663, fn. 7.)
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• “Section 3294 is no longer silent on who may be responsible for imputing
punitive damages to a corporate employer. For corporate punitive damages
liability, section 3294, subdivision (b), requires that the wrongful act giving rise
to the exemplary damages be committed by an ‘officer, director, or managing
agent.’ ” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19,
981 P.2d 944].)
• “[E]vidence of ratification of [agent’s] actions by Hamilton, and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “An award of punitive damages is not supported by a verdict based on breach of
contract, even where the defendant’s conduct in breaching the contract was
wilful, fraudulent, or malicious. Even in those cases in which a separate tort
action is alleged, if there is ‘but one verdict based upon contract’ a punitive
damage award is improper.” (Myers Building Industries, Ltd. v. Interface
Technology, Inc. (1993) 13 Cal.App.4th 949, 960 [17 Cal.Rptr.2d 242], internal
citations omitted.)
• “ ‘[T]he most important indicium of the reasonableness of a punitive damages
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award is the degree of reprehensibility of the defendant’s conduct.’ We have
instructed courts to determine the reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health or safety
of others; the target of the conduct had financial vulnerability; the conduct
involved repeated actions or was an isolated incident; and the harm was the
result of intentional malice, trickery, or deceit, or mere accident. The existence
of any one of these factors weighing in favor of a plaintiff may not be sufficient
to sustain a punitive damages award; and the absence of all of them renders any
award suspect.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S.
at p. 419, internal citation omitted.)
• “[I]n a case involving physical harm, the physical or physiological vulnerability
of the target of the defendant’s conduct is an appropriate factor to consider in
determining the degree of reprehensibility, particularly if the defendant
deliberately exploited that vulnerability.” (Bullock v. Philip Morris USA, Inc.
(2011) 198 Cal.App.4th 543, 562 [131 Cal.Rptr.3d 382], internal citation
omitted.)
• “[W]e have been reluctant to identify concrete constitutional limits on the ratio
between harm, or potential harm, to the plaintiff and the punitive damages
award. We decline again to impose a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant degree, will satisfy
due process. . . . [A]n award of more than four times the amount of
compensatory damages might be close to the line of constitutional
impropriety. . . . While these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution, than awards with ratios in range of 500 to 1 . . . .” (State Farm
Mutual Automobile Insurance Co., supra, 538 U.S. at pp. 424–425, internal
citation omitted.)
• “Nonetheless, because there are no rigid benchmarks that a punitive damages
award may not surpass, ratios greater than those we have previously upheld may
comport with due process where ‘a particularly egregious act has resulted in
only a small amount of economic damages.’ The converse is also true, however.
When compensatory damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost limit of the due process
guarantee. The precise award in any case, of course, must be based upon the
facts and circumstances of the defendant’s conduct and the harm to the plaintiff.”
(State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 425,
internal citation omitted.)
• “In determining whether a punitive damages award is unconstitutionally
excessive, Brandt fees may be included in the calculation of the ratio of punitive
to compensatory damages, regardless of whether the fees are awarded by the
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trier of fact as part of its verdict or are determined by the trial court after the
verdict has been rendered.” (Nickerson v. Stonebridge Life Ins. Co. (2016) 63
Cal.4th 363, 368 [203 Cal.Rptr.3d 23, 371 P.3d 242].)
• “[T]he Constitution’s Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties or
those whom they directly represent, i.e., injury that it inflicts upon those who
are, essentially, strangers to the litigation.” (Philip Morris USA, supra, 549 U.S.
at p. 353.)
• “Evidence of actual harm to nonparties can help to show that the conduct that
harmed the plaintiff also posed a substantial risk of harm to the general public,
and so was particularly reprehensible—although counsel may argue in a
particular case that conduct resulting in no harm to others nonetheless posed a
grave risk to the public, or the converse. Yet for the reasons given above, a jury
may not go further than this and use a punitive damages verdict to punish a
defendant directly on account of harms it is alleged to have visited on
nonparties.” (Philip Morris USA, supra, 549 U.S. at p. 355.)
• “ ‘Due process does not permit courts, in the calculation of punitive damages, to
adjudicate the merits of other parties’ hypothetical claims against a defendant
under the guise of the reprehensibility analysis . . . . Punishment on these bases
creates the possibility of multiple punitive damages awards for the same
conduct . . . .’ This does not mean, however, that the defendant’s similar
wrongful conduct toward others should not be considered in determining the
amount of punitive damages.” (Bullock, supra, 198 Cal.App.4th at p. 560.)
• “Though due process does not permit courts or juries, in the calculation of
punitive damages, to adjudicate the merits of other parties’ hypothetical claims
against a defendant under the guise of the reprehensibility analysis, this does not
mean that the defendant’s similar wrongful conduct toward others should not be
considered in determining the amount of punitive damages. . . . ‘[T]o consider
the defendant’s entire course of conduct in setting or reviewing a punitive
damages award, even in an individual plaintiff’s lawsuit, is not to punish the
defendant for its conduct toward others. An enhanced punishment for recidivism
does not directly punish the earlier offense; it is, rather, “ ‘ “a stiffened penalty
for the last crime, which is considered to be an aggravated offense because a
repetitive one.” ’ ” . . . By placing the defendant’s conduct on one occasion into
the context of a business practice or policy, an individual plaintiff can
demonstrate that the conduct toward him or her was more blameworthy and
warrants a stronger penalty to deter continued or repeated conduct of the same
nature.’ ” (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 987 [180
Cal.Rptr.3d 382], internal citations omitted.)
• “[A] specific instruction encompassing both the permitted and prohibited uses of
evidence of harm caused to others would be appropriate in the new trial if
requested by the parties. We believe that an instruction on these issues should
clearly distinguish between the permitted and prohibited uses of such evidence
and thus make clear to the jury the purposes for which it can and cannot
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consider that evidence. A jury may consider evidence of harm caused to others
for the purpose of determining the degree of reprehensibility of a defendant’s
conduct toward the plaintiff in deciding the amount of punitive damages, but it
may not consider that evidence for the purpose of punishing the defendant
directly for harm caused to others. In our view, Judicial Council of California
Civil Jury Instructions (Aug. 2007 rev.) CACI Nos. 3940, 3942, 3943, 3945,
3947, and 3949 could convey this distinction better by stating more explicitly
that evidence of harm caused to others may be considered for the one purpose
but not for the other, and by providing that explanation together with the
reprehensibility factors rather than in connection with the reasonable relationship
issue.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 695, fn.
21 [71 Cal.Rptr.3d 775], internal citation omitted.)
• “In light of our holding that evidence of a defendant’s financial condition is
essential to support an award of punitive damages, Evidence Code section 500
mandates that the plaintiff bear the burden of proof on the issue. A plaintiff
seeking punitive damages is not seeking a mere declaration by the jury that he is
entitled to punitive damages in the abstract. The plaintiff is seeking an award of
real money in a specific amount to be set by the jury. Because the award,
whatever its amount, cannot be sustained absent evidence of the defendant’s
financial condition, such evidence is ‘essential to the claim for relief.’ ” (Adams
v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318, 813 P.2d 1348],
internal citation omitted.)
• “A defendant is in the best position to know his or her financial condition, and
cannot avoid a punitive damage award by failing to cooperate with discovery
orders. [¶] A number of cases have held that noncompliance with a court order
to disclose financial condition precludes a defendant from challenging the
sufficiency of the evidence of a punitive damages award on appeal.” (Fernandes
v. Singh (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751].)
• “[T]he purpose of punitive damages is not served by financially destroying a
defendant. The purpose is to deter, not to destroy.” (Adams, supra, 54 Cal.3d at
p. 112.)
• “[A] punitive damages award is excessive if it is disproportionate to the
defendant’s ability to pay.” (Adams, supra, 54 Cal.3d at p. 112, internal citations
omitted.)
• “It has been recognized that punitive damages awards generally are not
permitted to exceed 10 percent of the defendant’s net worth.” (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510].)
• “While ‘there is no rigid formula and other factors may be dispositive especially
when net worth is manipulated and fails to reflect actual wealth,’ net worth is
often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff
seeking punitive damages must provide a balanced overview of the defendant’s
financial condition; a selective presentation of financial condition evidence will
not survive scrutiny.” (Farmers & Merchants Trust Co. v. Vanetik (2019) 33
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Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted.)
• “[N]et worth is not the only measure of a defendant’s wealth for punitive
damages purposes that is recognized by the California courts. ‘Indeed, it is likely
that blind adherence to any one standard [of determining wealth] could
sometimes result in awards which neither deter nor punish or which deter or
punish too much.’ ” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68,
79 [139 Cal.Rptr.3d 849].)
• “[T]he ‘net’ concept of the net worth metric remains critical. ‘In most cases,
evidence of earnings or profit alone are not sufficient “without examining the
liabilities side of the balance sheet.” [Citations.]’ ” (Soto v. BorgWarner Morse
TEC Inc. (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal
citations omitted.)
• “The decision to award punitive damages is exclusively the function of the trier
of fact. So too is the amount of any punitive damage award. The relevant
considerations are the nature of the defendant’s conduct, the defendant’s wealth,
and the plaintiff’s actual damages.” (Gagnon v. Continental Casualty Co. (1989)
211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. 305], internal citations omitted.)
• “The wealth of a defendant cannot justify an otherwise unconstitutional punitive
damages award.” (State Farm Mutual Automobile Insurance Co., supra, 538
U.S. at p. 427, internal citation omitted.)
• “[I]n some cases, the defendant’s financial condition may combine with high
reprehensibility and a low compensatory award to justify an extraordinary ratio
between compensatory and punitive damages. [Citation.]” (Nickerson v.
Stonebridge Life Ins. Co. (Nickerson II) (2016) 5 Cal.App.5th 1, 26 [209
Cal.Rptr.3d 690].)
• “[I]n performing, ratifying, or approving the malicious conduct, the agent must
be acting as the organization’s representative, not in some other capacity.”
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 723 [34
Cal.Rptr.2d 898, 882 P.2d 894].)
• “[T]he concept [of managing agent] assumes that such individual was acting in a
corporate or employment capacity when the conduct giving rise to the punitive
damages claim against the employer occurred.” (College Hospital, Inc., supra, 8
Cal.4th at p. 723.)
• “No purpose would be served by punishing the employer for an employee’s
conduct that is wholly unrelated to its business or to the employee’s duties
therein.” (College Hospital, Inc., supra, 8 Cal.4th at pp. 723–724.)
• “[T]he determination of whether certain employees are managing agents ‘ “does
not necessarily hinge on their ‘level’ in the corporate hierarchy. Rather, the
critical inquiry is the degree of discretion the employees possess in making
decisions . . . .” ’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886 [164 Cal.Rptr.3d 811].)
• “Although it is generally true . . . that an employee’s hierarchy in a corporation
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is not necessarily determinative of his or her status as a managing agent of a
corporation, evidence showing an employee’s hierarchy and job duties,
responsibilities, and authority may be sufficient, absent conclusive proof to the
contrary, to support a reasonable inference by a trier of fact that the employee is
a managing agent of a corporation.” (Davis v. Kiewit Pacific Co. (2013) 220
Cal.App.4th 358, 370 [162 Cal.Rptr.3d 805].)
• “[W]e conclude the Legislature intended the term ‘managing agent’ to include
only those corporate employees who exercise substantial independent authority
and judgment in their corporate decisionmaking so that their decisions ultimately
determine corporate policy. The scope of a corporate employee’s discretion and
authority under our test is therefore a question of fact for decision on a case-by-
case basis.” (White, supra, 21 Cal.4th at pp. 566–567.)
• “In order to demonstrate that an employee is a true managing agent under
section 3294, subdivision (b), a plaintiff seeking punitive damages would have to
show that the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th at p.
577.)
• “ ‘[C]orporate policy’ is the general principles which guide a corporation, or
rules intended to be followed consistently over time in corporate operations. A
‘managing agent’ is one with substantial authority over decisions that set these
general principles and rules.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160,
167–168 [99 Cal.Rptr.2d 435].)
• “The key inquiry thus concerns the employee’s authority to change or establish
corporate policy. The fact that an employee has a supervisory position with the
power to terminate employees under his or her control does not, by itself, render
the employee a managing agent. Nor does the fact that an employee supervises a
large number of employees necessarily establish that status.” (CRST, Inc. v.
Superior Court (2017) 11 Cal.App.5th 1255, 1273 [218 Cal.Rptr.3d 664].)
• “The high court in TXO [TXO Production Corp., supra] and BMW [BMW of
North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d
809]] has refined the disparity analysis to take into account the potential loss to
plaintiffs, as where a scheme worthy of punitive damages does not fully succeed.
In such cases, the proper ratio would be the ratio of punitive damages to the
potential harm to plaintiff.” (Sierra Club Found. v. Graham (1999) 72
Cal.App.4th 1135, 1162, fn. 15 [85 Cal.Rptr.2d 726], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶¶ 3:1703–3:1708 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar 2d ed.) Punitive Damages, §§ 14.1–14.12,
14.18–14.31, 14.39
4 Levy et al., California Torts, Ch. 54, Punitive Damages, § 54.07 (Matthew
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Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.141 et seq.,
64.174 et seq. (Matthew Bender)
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3946. Punitive Damages—Entity Defendant—Bifurcated Trial (First
Phase)
If you decide that [name of defendant]’s conduct caused [name of plaintiff]
harm, you must decide whether that conduct justifies an award of
punitive damages. The amount, if any, of punitive damages will be an
issue decided later.
At this time, you must decide whether [name of plaintiff] has proved that
[name of defendant] engaged in that conduct with malice, oppression, or
fraud. To do this, [name of plaintiff] must prove [one of] the following by
clear and convincing evidence:
1. [That the conduct constituting malice, oppression, or fraud was
committed by one or more officers, directors, or managing agents
of [name of defendant] who acted on behalf of [name of defendant];
[or]]
2. [That the conduct constituting malice, oppression, or fraud was
authorized by one or more officers, directors, or managing agents
of [name of defendant]; [or]]
3. [That one or more officers, directors, or managing agents of
[name of defendant] knew of the conduct constituting malice,
oppression, or fraud and adopted or approved that conduct after
it occurred.]
“Malice” means that [name of defendant] acted with intent to cause
injury or that [name of defendant]’s conduct was despicable and was done
with a willful and knowing disregard of the rights or safety of another. A
defendant acts with knowing disregard when the defendant is aware of
the probable dangerous consequences of the defendant’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that [name of defendant]’s conduct was despicable
and subjected [name of plaintiff] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that [name of defendant] intentionally misrepresented or
concealed a material fact and did so intending to harm [name of
plaintiff].
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
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New September 2003; Revised April 2004, December 2005, May 2020
Directions for Use
CACI No. 3942, Punitive Damages—Individual Defendant—Bifurcated Trial
(Second Phase) may be used for the second phase of a bifurcated trial.
This instruction is intended for use when the plaintiff is seeking punitive damages
against a corporation or other entity for the conduct of its directors, officers, and
managing agents. When the plaintiff is seeking to hold an employer or principal
liable for the conduct of a specific employee or agent, use CACI No. 3944, Punitive
Damages Against Employer or Principal For Conduct of a Specific Agent or
Employee—Bifurcated Trial (First Phase). When the plaintiff is seeking punitive
damages from both the employer/principal and the employee/agent, use CACI
No. 3948, Punitive Damages—Individual and Corporate Defendants (Corporate
Liability Based on Acts of Named Individual)—Bifurcated Trial (First Phase).
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
If any of the alternative grounds for seeking punitive damages are inapplicable to
the facts of the case, they may be omitted.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• “[E]vidence of ratification of [agent’s] actions by Hamilton, and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “[Section 3295(d)] affects the order of proof at trial, precluding the admission of
evidence of defendants’ financial condition until after the jury has returned a
verdict for plaintiffs awarding actual damages and found that one or more
defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil
Code section 3294.” (City of El Monte v. Superior Court (1994) 29 Cal.App.4th
272, 274–275 [34 Cal.Rptr.2d 490], internal citations omitted.)
• “Evidence of the defendant’s financial condition is a prerequisite to an award of
punitive damages. In order to protect defendants from the premature disclosure
of their financial position when punitive damages are sought, the Legislature
enacted Civil Code section 3295.” (City of El Monte, supra, 29 Cal.App.4th at p.
276, internal citations omitted.)
• “[C]ourts have held it is reversible error to try the punitive damages issue to a
new jury after the jury which found liability has been excused.” (Rivera v.
Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal
citations omitted.)
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• “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
and he or she willfully fails to avoid such consequences. [Citation.] Malice may
be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences. [Citation.]’ ” (Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [164 Cal.Rptr.3d 112].)
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
• “Section 3294 is no longer silent on who may be responsible for imputing
punitive damages to a corporate employer. For corporate punitive damages
liability, section 3294, subdivision (b), requires that the wrongful act giving rise
to the exemplary damages be committed by an ‘officer, director, or managing
agent.’ ” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19,
981 P.2d 944].)
• “[I]n performing, ratifying, or approving the malicious conduct, the agent must
be acting as the organization’s representative, not in some other capacity.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 723.)
• “[T]he concept [of managing agent] assumes that such individual was acting in a
corporate or employment capacity when the conduct giving rise to the punitive
damages claim against the employer occurred.” (College Hospital, Inc., supra, 8
Cal.4th at p. 723.)
• “No purpose would be served by punishing the employer for an employee’s
conduct that is wholly unrelated to its business or to the employee’s duties
therein.” (College Hospital, Inc., supra, 8 Cal.4th at pp. 723–724.)
• “[T]he determination of whether certain employees are managing agents ‘ “does
not necessarily hinge on their ‘level’ in the corporate hierarchy. Rather, the
critical inquiry is the degree of discretion the employees possess in making
decisions . . . .” ’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886 [164 Cal.Rptr.3d 811].)
• “Although it is generally true . . . that an employee’s hierarchy in a corporation
is not necessarily determinative of his or her status as a managing agent of a
corporation, evidence showing an employee’s hierarchy and job duties,
responsibilities, and authority may be sufficient, absent conclusive proof to the
contrary, to support a reasonable inference by a trier of fact that the employee is
a managing agent of a corporation.” (Davis v. Kiewit Pacific Co. (2013) 220
Cal.App.4th 358, 370 [162 Cal.Rptr.3d 805].)
• “[W]e conclude the Legislature intended the term ‘managing agent’ to include
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only those corporate employees who exercise substantial independent authority
and judgment in their corporate decisionmaking so that their decisions ultimately
determine corporate policy. The scope of a corporate employee’s discretion and
authority under our test is therefore a question of fact for decision on a case-by-
case basis.” (White, supra, 21 Cal.4th at pp. 566–567.)
• “In order to demonstrate that an employee is a true managing agent under
section 3294, subdivision (b), a plaintiff seeking punitive damages would have to
show that the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th at p.
577.)
• “ ‘[C]orporate policy’ is the general principles which guide a corporation, or
rules intended to be followed consistently over time in corporate operations. A
‘managing agent’ is one with substantial authority over decisions that set these
general principles and rules.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160,
167–168 [99 Cal.Rptr.2d 435].)
• “The key inquiry thus concerns the employee’s authority to change or establish
corporate policy. The fact that an employee has a supervisory position with the
power to terminate employees under his or her control does not, by itself, render
the employee a managing agent. Nor does the fact that an employee supervises a
large number of employees necessarily establish that status.” (CRST, Inc. v.
Superior Court (2017) 11 Cal.App.5th 1255, 1273 [218 Cal.Rptr.3d 664].)
• “ ‘[R]atification’ is the ‘[c]onfirmation and acceptance of a previous act.’ A
corporation cannot confirm and accept that which it does not actually know
about.” (Cruz, supra, 83 Cal.App.4th at p. 168.)
• “For purposes of determining an employer’s liability for punitive damages,
ratification generally occurs where, under the particular circumstances, the
employer demonstrates an intent to adopt or approve oppressive, fraudulent, or
malicious behavior by an employee in the performance of his job duties.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 726.)
• “Corporate ratification in the punitive damages context requires actual
knowledge of the conduct and its outrageous nature.” (College Hospital, Inc.,
supra, 8 Cal.4th at p. 726.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
California Tort Damages (Cont.Ed.Bar) Punitive Damages, §§ 14.13–14.14, 14.23
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.07, 54.24[4][d]
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51[17]
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.24 et seq.
(Matthew Bender)
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3947. Punitive Damages—Individual and Entity Defendants—Trial
Not Bifurcated
If you decide that [name of individual defendant]’s or [name of entity
defendant]’s conduct caused [name of plaintiff] harm, you must decide
whether that conduct justifies an award of punitive damages. The
purposes of punitive damages are to punish a wrongdoer for the conduct
that harmed the plaintiff and to discourage similar conduct in the future.
You may award punitive damages against [name of individual defendant]
only if [name of plaintiff] proves by clear and convincing evidence that
[name of individual defendant] engaged in that conduct with malice,
oppression, or fraud.
You may award punitive damages against [name of entity defendant] only
if [name of plaintiff] proves that [name of entity defendant] acted with
malice, oppression, or fraud. To do this, [name of plaintiff] must prove
[one of] the following by clear and convincing evidence:
1. [That the malice, oppression, or fraud was conduct of one or
more officers, directors, or managing agents of [name of entity
defendant], who acted on behalf of [name of entity defendant]; [or]]
2. [That an officer, a director, or a managing agent of [name of entity
defendant] had advance knowledge of the unfitness of [name of
individual defendant] and employed [him/her/nonbinary pronoun]
with a knowing disregard of the rights or safety of others; [or]]
3. [That the conduct constituting malice, oppression, or fraud was
authorized by one or more officers, directors, or managing agents
of [name of entity defendant]; [or]]
4. [That one or more officers, directors, or managing agents of
[name of entity defendant] knew of the conduct constituting malice,
oppression, or fraud and adopted or approved that conduct after
it occurred.]
“Malice” means that a defendant acted with intent to cause injury or
that a defendant’s conduct was despicable and was done with a willful
and knowing disregard of the rights or safety of another. A defendant
acts with knowing disregard when the defendant is aware of the
probable dangerous consequences of the defendant’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that a defendant’s conduct was despicable and
subjected [name of plaintiff] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
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that it would be looked down on and despised by reasonable people.
“Fraud” means that a defendant intentionally misrepresented or
concealed a material fact and did so intending to harm [name of
plaintiff].
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
There is no fixed formula for determining the amount of punitive
damages, and you are not required to award any punitive damages. If
you decide to award punitive damages, you should consider all of the
following factors separately for each defendant in determining the
amount:
(a) How reprehensible was that defendant’s conduct? In deciding
how reprehensible a defendant’s conduct was, you may consider,
among other factors:
1. Whether the conduct caused physical harm;
2. Whether the defendant disregarded the health or safety of
others;
3. Whether [name of plaintiff] was financially weak or vulnerable
and the defendant knew [name of plaintiff] was financially weak
or vulnerable and took advantage of [him/her/nonbinary
pronoun];
4. Whether the defendant’s conduct involved a pattern or
practice; and
5. Whether the defendant acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive
damages and [name of plaintiff]’s harm [or between the amount of
punitive damages and potential harm to [name of plaintiff] that
the defendant knew was likely to occur because of
[his/her/nonbinary pronoun/its] conduct]?
(c) In view of that defendant’s financial condition, what amount is
necessary to punish [him/her/nonbinary pronoun/it] and discourage
future wrongful conduct? You may not increase the punitive
award above an amount that is otherwise appropriate merely
because a defendant has substantial financial resources. [Any
award you impose may not exceed that defendant’s ability to
pay.]
[Punitive damages may not be used to punish a defendant for the impact
of [his/her/nonbinary pronoun/its] alleged misconduct on persons other
than [name of plaintiff].]
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New September 2003; Revised April 2004, October 2004, December 2005, June
2006, April 2007, August 2007, October 2008, May 2020
Directions for Use
This instruction is intended to apply if punitive damages are sought against both an
individual person and a corporate defendant. When punitive damages are sought
only against corporate defendants, use CACI No. 3943, Punitive Damages Against
Employer or Principal for Conduct of a Specific Agent or Employee—Trial Not
Bifurcated, or CACI No. 3945, Punitive Damages—Entity Defendant—Trial Not
Bifurcated. When punitive damages are sought against an individual defendant, use
CACI No. 3940, Punitive Damages—Individual Defendant—Trial Not Bifurcated.
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
Read the bracketed language at the end of the first sentence of factor (b) only if
there is evidence that the conduct of defendant that allegedly gives rise to liability
and punitive damages either caused or foreseeably threatened to cause harm to
plaintiff that would not be included in an award of compensatory damages. (Simon
v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379,
113 P.3d 63].) The bracketed phrase concerning “potential harm” might be
appropriate, for example, if damages actually caused by the defendant’s acts are not
recoverable because they are barred by statute (id. at p. 1176, citing Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. 389, 582 P.2d 980] [in a
bad faith insurance case, plaintiff died before judgment, precluding her estate’s
recovery of emotional distress damages]), or if the harm caused by defendant’s acts
could have been great, but by chance only slight harm was inflicted. (Simon, supra,
35 Cal.4th at p. 1177, citing TXO Production Corp. v. Alliance Resources Corp.
(1993) 509 U.S. 443, 459 [113 S.Ct. 2711, 125 L.Ed.2d 366] [considering the
hypothetical of a person wildly firing a gun into a crowd but by chance only
damaging a pair of glasses].) The bracketed phrase should not be given if an award
of compensatory damages is the “true measure” of the harm or potential harm
caused by defendant’s wrongful acts. (Simon, supra, 35 Cal.4th at pp. 1178–1179
[rejecting consideration for purposes of assessing punitive damages of the plaintiff’s
loss of the benefit of the bargain if the jury had found that there was no binding
contract].)
Read the optional final sentence of factor (c) only if the defendant has presented
relevant evidence regarding that issue.
Read the optional final sentence if there is a possibility that in arriving at an amount
of punitive damages, the jury might consider harm that the defendant’s conduct may
have caused to nonparties. (See Philip Morris USA v. Williams (2007) 549 U.S. 346,
353–354 [127 S.Ct. 1057, 166 L.Ed.2d 940].) Harm to others may be relevant to
determining reprehensibility based on factors (a)(2) (disregard of health or safety of
others) and (a)(4) (pattern or practice). (See State Farm Mutual Automobile
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Insurance Co. v. Campbell (2003) 538 U.S. 408, 419 [123 S.Ct. 1513, 155 L.Ed.2d
585].)
If any of the alternative grounds for seeking punitive damages are inapplicable to
the facts of the case, they may be omitted.
See CACI No. 3940, Punitive Damages—Individual Defendant—Trial Not
Bifurcated, for additional sources and authority.
“A jury must be instructed . . . that it may not use evidence of out-of-state conduct
to punish a defendant for action that was lawful in the jurisdiction where it
occurred.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p.
422.) An instruction on this point should be included within this instruction if
appropriate to the facts.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Courts have stated that “[p]unitive damages previously imposed for the same
conduct are relevant in determining the amount of punitive damages required to
sufficiently punish and deter. The likelihood of future punitive damage awards may
also be considered, although it is entitled to considerably less weight.” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d
525], internal citations omitted.) The court in Stevens suggested that the following
instruction be given if evidence of other punitive damage awards is introduced into
evidence:
If you determine that a defendant has already been assessed with punitive
damages based on the same conduct for which punitive damages are requested
in this case, you may consider whether punitive damages awarded in other cases
have sufficiently punished and made an example of the defendant. You must not
use the amount of punitive damages awarded in other cases to determine the
amount of the punitive damage award in this case, except to the extent you
determine that a lesser award, or no award at all, is justified in light of the
penalties already imposed. (Stevens, supra, 49 Cal.App.4th at p. 1663, fn. 7.)
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• “[E]vidence of ratification of [agent’s] actions by Hamilton, and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “Subdivision (b) is not a model of clarity, but in light of California’s history of
employer liability for punitive damages and of the Legislature’s reasons for
enacting subdivision (b), we have no doubt that it does no more than codify and
refine existing law. Subdivision (b) thus authorizes the imposition of punitive
damages on an employer in three situations: (1) when an employee was guilty of
oppression, fraud or malice, and the employer with advance knowledge of the
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unfitness of the employee employed him or her with a conscious disregard of the
rights or safety of others, (2) when an employee was guilty of oppression, fraud
or malice, and the employer authorized or ratified the wrongful conduct, or (3)
when the employer was itself guilty of the oppression, fraud or malice.” (Weeks
v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151 [74 Cal.Rptr.2d 510].)
• “ ‘California has traditionally allowed punitive damages to be assessed against an
employer (or principal) for the acts of an employee (or agent) only where the
circumstances indicate that the employer himself was guilty of fraud, oppression,
or malice. Thus, even before section 3294, subdivision (b) was added to the
Civil Code in 1980, the courts required evidence that the employer authorized or
ratified a malicious act, personally committed such an act, or wrongfully hired or
retained an unfit employee.’ The ‘additional’ burden on a plaintiff seeking
punitive damages from an employer is to show not only that an employee acted
with oppression, fraud or malice, but that the employer engaged in conduct
defined in subdivision (b).” (Weeks, supra, 63 Cal.App.4th at p. 1154, internal
citation omitted.)
• “Civil Code section 3294, subdivision (b) does not authorize an award of
punitive damages against an employer for the employee’s wrongful conduct. It
authorizes an award of punitive damages against an employer for the employer’s
own wrongful conduct. Liability under subdivision (b) is vicarious only to the
extent that the employer is liable for the actions of its officer, director or
managing agent in hiring or controlling the offending employee, in ratifying the
offense or in acting with oppression, fraud or malice. It is not vicarious in the
sense that the employer is liable for the wrongful conduct of the offending
employee.” (Weeks, supra, 63 Cal.App.4th at pp. 1154–1155.)
• “ ‘[T]he most important indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant’s conduct.’ We have
instructed courts to determine the reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed to economic; the tortious
conduct evinced an indifference to or a reckless disregard of the health or safety
of others; the target of the conduct had financial vulnerability; the conduct
involved repeated actions or was an isolated incident; and the harm was the
result of intentional malice, trickery, or deceit, or mere accident. The existence
of any one of these factors weighing in favor of a plaintiff may not be sufficient
to sustain a punitive damages award; and the absence of all of them renders any
award suspect.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S.
at p. 419, internal citation omitted.)“[I]n a case involving physical harm, the
physical or physiological vulnerability of the target of the defendant’s conduct is
an appropriate factor to consider in determining the degree of reprehensibility,
particularly if the defendant deliberately exploited that vulnerability.” (Bullock v.
Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 562 [131 Cal.Rptr.3d 382],
internal citation omitted.)
• “[W]e have been reluctant to identify concrete constitutional limits on the ratio
between harm, or potential harm, to the plaintiff and the punitive damages
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award. We decline again to impose a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant degree, will satisfy
due process. . . . [A]n award of more than four times the amount of
compensatory damages might be close to the line of constitutional
impropriety. . . . While these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution, than awards with ratios in range of 500 to 1 . . . .” (State Farm
Mutual Automobile Insurance Co., supra, 538 U.S. at pp. 424–425, internal
citation omitted.)
• “Nonetheless, because there are no rigid benchmarks that a punitive damages
award may not surpass, ratios greater than those we have previously upheld may
comport with due process where ‘a particularly egregious act has resulted in
only a small amount of economic damages.’ The converse is also true, however.
When compensatory damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost limit of the due process
guarantee. The precise award in any case, of course, must be based upon the
facts and circumstances of the defendant’s conduct and the harm to the plaintiff.”
(State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 425,
internal citation omitted.)
• “In determining whether a punitive damages award is unconstitutionally
excessive, Brandt fees may be included in the calculation of the ratio of punitive
to compensatory damages, regardless of whether the fees are awarded by the
trier of fact as part of its verdict or are determined by the trial court after the
verdict has been rendered.” (Nickerson v. Stonebridge Life Ins. Co. (2016) 63
Cal.4th 363, 368 [203 Cal.Rptr.3d 23, 371 P.3d 242].)
• “[T]he Constitution’s Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties or
those whom they directly represent, i.e., injury that it inflicts upon those who
are, essentially, strangers to the litigation.” (Philip Morris USA, supra, 549 U.S.
at p. 353.)
• “Evidence of actual harm to nonparties can help to show that the conduct that
harmed the plaintiff also posed a substantial risk of harm to the general public,
and so was particularly reprehensible—although counsel may argue in a
particular case that conduct resulting in no harm to others nonetheless posed a
grave risk to the public, or the converse. Yet for the reasons given above, a jury
may not go further than this and use a punitive damages verdict to punish a
defendant directly on account of harms it is alleged to have visited on
nonparties.” (Philip Morris USA, supra, 549 U.S. at p. 355.)
• “ ‘Due process does not permit courts, in the calculation of punitive damages, to
adjudicate the merits of other parties’ hypothetical claims against a defendant
under the guise of the reprehensibility analysis . . . . Punishment on these bases
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creates the possibility of multiple punitive damages awards for the same
conduct . . . .’ This does not mean, however, that the defendant’s similar
wrongful conduct toward others should not be considered in determining the
amount of punitive damages.” (Bullock, supra, 198 Cal.App.4th at p. 560.)
• “Though due process does not permit courts or juries, in the calculation of
punitive damages, to adjudicate the merits of other parties’ hypothetical claims
against a defendant under the guise of the reprehensibility analysis, this does not
mean that the defendant’s similar wrongful conduct toward others should not be
considered in determining the amount of punitive damages. . . . ‘[T]o consider
the defendant’s entire course of conduct in setting or reviewing a punitive
damages award, even in an individual plaintiff’s lawsuit, is not to punish the
defendant for its conduct toward others. An enhanced punishment for recidivism
does not directly punish the earlier offense; it is, rather, “ ‘ “a stiffened penalty
for the last crime, which is considered to be an aggravated offense because a
repetitive one.” ’ ” . . . By placing the defendant’s conduct on one occasion into
the context of a business practice or policy, an individual plaintiff can
demonstrate that the conduct toward him or her was more blameworthy and
warrants a stronger penalty to deter continued or repeated conduct of the same
nature.’ ” (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 986, fn. 10
[180 Cal.Rptr.3d 382], internal citations omitted.)
• “[A] specific instruction encompassing both the permitted and prohibited uses of
evidence of harm caused to others would be appropriate in the new trial if
requested by the parties. We believe that an instruction on these issues should
clearly distinguish between the permitted and prohibited uses of such evidence
and thus make clear to the jury the purposes for which it can and cannot
consider that evidence. A jury may consider evidence of harm caused to others
for the purpose of determining the degree of reprehensibility of a defendant’s
conduct toward the plaintiff in deciding the amount of punitive damages, but it
may not consider that evidence for the purpose of punishing the defendant
directly for harm caused to others. In our view, Judicial Council of California
Civil Jury Instructions (Aug. 2007 rev.) CACI Nos. 3940, 3942, 3943, 3945,
3947, and 3949 could convey this distinction better by stating more explicitly
that evidence of harm caused to others may be considered for the one purpose
but not for the other, and by providing that explanation together with the
reprehensibility factors rather than in connection with the reasonable relationship
issue.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 695, fn.
21 [71 Cal.Rptr.3d 775], internal citation omitted.)
• “In light of our holding that evidence of a defendant’s financial condition is
essential to support an award of punitive damages, Evidence Code section 500
mandates that the plaintiff bear the burden of proof on the issue. A plaintiff
seeking punitive damages is not seeking a mere declaration by the jury that he is
entitled to punitive damages in the abstract. The plaintiff is seeking an award of
real money in a specific amount to be set by the jury. Because the award,
whatever its amount, cannot be sustained absent evidence of the defendant’s
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financial condition, such evidence is ‘essential to the claim for relief.’ ” (Adams
v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318, 813 P.2d 1348],
internal citation omitted.)
• “A defendant is in the best position to know his or her financial condition, and
cannot avoid a punitive damage award by failing to cooperate with discovery
orders. [¶] A number of cases have held that noncompliance with a court order
to disclose financial condition precludes a defendant from challenging the
sufficiency of the evidence of a punitive damages award on appeal.” (Fernandes
v. Singh (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751].)
• “[T]he purpose of punitive damages is not served by financially destroying a
defendant. The purpose is to deter, not to destroy.” (Adams, supra, 54 Cal.3d at
p. 112.)
• “[A] punitive damages award is excessive if it is disproportionate to the
defendant’s ability to pay.” (Adams, supra, 54 Cal.3d at p. 112, internal citations
omitted.)
• “It has been recognized that punitive damages awards generally are not
permitted to exceed 10 percent of the defendant’s net worth.” (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510].)
• “While ‘there is no rigid formula and other factors may be dispositive especially
when net worth is manipulated and fails to reflect actual wealth,’ net worth is
often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff
seeking punitive damages must provide a balanced overview of the defendant’s
financial condition; a selective presentation of financial condition evidence will
not survive scrutiny.” (Farmers & Merchants Trust Co. v. Vanetik (2019) 33
Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted.)
• “[N]et worth is not the only measure of a defendant’s wealth for punitive
damages purposes that is recognized by the California courts. ‘Indeed, it is likely
that blind adherence to any one standard [of determining wealth] could
sometimes result in awards which neither deter nor punish or which deter or
punish too much.’ ” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68,
79 [139 Cal.Rptr.3d 849].)
• “[T]he ‘net’ concept of the net worth metric remains critical. ‘In most cases,
evidence of earnings or profit alone are not sufficient “without examining the
liabilities side of the balance sheet.” [Citations.]’ ” (Soto v. BorgWarner Morse
TEC Inc. (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal
citations omitted.)
• “The decision to award punitive damages is exclusively the function of the trier
of fact. So too is the amount of any punitive damage award. The relevant
considerations are the nature of the defendant’s conduct, the defendant’s wealth,
and the plaintiff’s actual damages.” (Gagnon v. Continental Casualty Co. (1989)
211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. 305], internal citations omitted.)
• “The wealth of a defendant cannot justify an otherwise unconstitutional punitive
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damages award.” (State Farm Mutual Automobile Insurance Co., supra, 538
U.S. at p. 427, internal citation omitted.)
• “[I]n some cases, the defendant’s financial condition may combine with high
reprehensibility and a low compensatory award to justify an extraordinary ratio
between compensatory and punitive damages. [Citation.]” (Nickerson v.
Stonebridge Life Ins. Co. (Nickerson II) (2016) 5 Cal.App.5th 1, 26 [209
Cal.Rptr.3d 690].)
• “An award of punitive damages is not supported by a verdict based on breach of
contract, even where the defendant’s conduct in breaching the contract was
wilful, fraudulent, or malicious. Even in those cases in which a separate tort
action is alleged, if there is ‘but one verdict based upon contract’ a punitive
damage award is improper.” (Myers Building Industries, Ltd. v. Interface
Technology, Inc. (1993) 13 Cal.App.4th 949, 960 [17 Cal.Rptr.2d 242], internal
citations omitted.)
• “[P]unitive damages are not assessed against employers on a pure respondeat
superior basis. Some evidence of fault by the employer itself is also required.”
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 724, fn. 11 [34
Cal.Rptr.2d 898, 882 P.2d 894].)
• “Subdivision (b) . . . governs awards of punitive damages against employers,
and permits an award for the conduct described there without an additional
finding that the employer engaged in oppression, fraud or malice.” (Weeks,
supra, 63 Cal.App.4th at p. 1137.)
• “Section 3294 is no longer silent on who may be responsible for imputing
punitive damages to a corporate employer. For corporate punitive damages
liability, section 3294, subdivision (b), requires that the wrongful act giving rise
to the exemplary damages be committed by an ‘officer, director, or managing
agent.’ ” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19,
981 P.2d 944].)
• “[I]n performing, ratifying, or approving the malicious conduct, the agent must
be acting as the organization’s representative, not in some other capacity.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 723.)
• “[T]he concept [of managing agent] assumes that such individual was acting in a
corporate or employment capacity when the conduct giving rise to the punitive
damages claim against the employer occurred.” (College Hospital, Inc., supra, 8
Cal.4th at p. 723.)
• “No purpose would be served by punishing the employer for an employee’s
conduct that is wholly unrelated to its business or to the employee’s duties
therein.” (College Hospital, Inc., supra, 8 Cal.4th at pp. 723–724.)
• “[T]he determination of whether certain employees are managing agents ‘ “does
not necessarily hinge on their ‘level’ in the corporate hierarchy. Rather, the
critical inquiry is the degree of discretion the employees possess in making
decisions . . . .” ’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor
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Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886 [164 Cal.Rptr.3d 811].)
• “Although it is generally true . . . that an employee’s hierarchy in a corporation
is not necessarily determinative of his or her status as a managing agent of a
corporation, evidence showing an employee’s hierarchy and job duties,
responsibilities, and authority may be sufficient, absent conclusive proof to the
contrary, to support a reasonable inference by a trier of fact that the employee is
a managing agent of a corporation.” (Davis v. Kiewit Pacific Co. (2013) 220
Cal.App.4th 358, 370 [162 Cal.Rptr.3d 805].)
• “[W]e conclude the Legislature intended the term ‘managing agent’ to include
only those corporate employees who exercise substantial independent authority
and judgment in their corporate decisionmaking so that their decisions ultimately
determine corporate policy. The scope of a corporate employee’s discretion and
authority under our test is therefore a question of fact for decision on a case-by-
case basis.” (White, supra, 21 Cal.4th at pp. 566–567.)
• “In order to demonstrate that an employee is a true managing agent under
section 3294, subdivision (b), a plaintiff seeking punitive damages would have to
show that the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th at p.
577.)
• “ ‘[C]orporate policy’ is the general principles which guide a corporation, or
rules intended to be followed consistently over time in corporate operations. A
‘managing agent’ is one with substantial authority over decisions that set these
general principles and rules.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160,
167–168 [99 Cal.Rptr.2d 435].)
• “The key inquiry thus concerns the employee’s authority to change or establish
corporate policy. The fact that an employee has a supervisory position with the
power to terminate employees under his or her control does not, by itself, render
the employee a managing agent. Nor does the fact that an employee supervises a
large number of employees necessarily establish that status.” (CRST, Inc. v.
Superior Court (2017) 11 Cal.App.5th 1255, 1273 [218 Cal.Rptr.3d 664].)
• “ ‘[R]atification’ is the ‘[c]onfirmation and acceptance of a previous act.’ A
corporation cannot confirm and accept that which it does not actually know
about.” (Cruz, supra, 83 Cal.App.4th at p. 168.)
• “For purposes of determining an employer’s liability for punitive damages,
ratification generally occurs where, under the particular circumstances, the
employer demonstrates an intent to adopt or approve oppressive, fraudulent, or
malicious behavior by an employee in the performance of his job duties.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 726.)
• “Corporate ratification in the punitive damages context requires actual
knowledge of the conduct and its outrageous nature.” (College Hospital, Inc.,
supra, 8 Cal.4th at p. 726.)
• “The high court in TXO [TXO Production Corp., supra] and BMW [BMW of
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North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d
809]] has refined the disparity analysis to take into account the potential loss to
plaintiffs, as where a scheme worthy of punitive damages does not fully succeed.
In such cases, the proper ratio would be the ratio of punitive damages to the
potential harm to plaintiff.” (Sierra Club Found. v. Graham (1999) 72
Cal.App.4th 1135, 1162, fn. 15 [85 Cal.Rptr.2d 726], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶¶ 3:255–3:281.15 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar 2d ed.) Punitive Damages, §§ 14.1–14.12,
14.18–14.31, 14.39
4 Levy et al., California Torts, Ch. 54, Punitive Damages, § 54.07 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.141 et seq.,
64.174 et seq. (Matthew Bender)
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3948. Punitive Damages—Individual and Corporate Defendants
(Corporate Liability Based on Acts of Named
Individual)—Bifurcated Trial (First Phase)
If you decide that [name of individual defendant]’s conduct caused [name
of plaintiff] harm, you must decide whether that conduct justifies an
award of punitive damages against [name of individual defendant] and, if
so, against [name of corporate defendant]. The amount, if any, of punitive
damages will be an issue decided later.
You may award punitive damages against [name of individual defendant]
only if [name of plaintiff] proves by clear and convincing evidence that
[name of individual defendant] engaged in that conduct with malice,
oppression, or fraud.
“Malice” means that a defendant acted with intent to cause injury or
that a defendant’s conduct was despicable and was done with a willful
and knowing disregard of the rights or safety of another. A defendant
acts with knowing disregard when the defendant is aware of the
probable dangerous consequences of the defendant’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that a defendant’s conduct was despicable and
subjected [name of plaintiff] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that a defendant intentionally misrepresented or
concealed a material fact and did so intending to harm [name of
plaintiff].
You may also award punitive damages against [name of corporate
defendant] based on [name of individual]’s conduct if [name of plaintiff]
proves [one of] the following by clear and convincing evidence:
1. [That [name of individual defendant] was an officer, a director, or a
managing agent of [name of corporate defendant] who was acting
on behalf of [name of corporate defendant] at the time of the
conduct constituting malice, oppression, or fraud; [or]]
2. [That an officer, a director, or a managing agent of [name of
corporate defendant] had advance knowledge of the unfitness of
[name of individual defendant] and employed [him/her/nonbinary
pronoun] with a knowing disregard of the rights or safety of
others; [or]]
3. [That [name of individual defendant]’s conduct constituting malice,
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oppression, or fraud was authorized by an officer, a director, or a
managing agent of [name of corporate defendant]; [or]]
4. [That an officer, a director, or a managing agent of [name of
corporate defendant] knew of [name of individual defendant]’s
conduct constituting malice, oppression, or fraud and adopted or
approved that conduct after it occurred.]
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
New September 2003; Revised April 2004, December 2005, May 2020
Directions for Use
Use CACI No. 3949, Punitive Damages—Individual and Corporate Defendants
(Corporate Liability Based on Acts of Named Individual)—Bifurcated Trial (Second
Phase), for the second phase of a bifurcated trial.
This instruction is intended to apply to cases where punitive damages are sought
against both an individual person and a corporate defendant. When damages are
sought only against a corporate defendant, use CACI No. 3944, Punitive Damages
Against Employer or Principal for Conduct of a Specific Agent or
Employee—Bifurcated Trial (First Phase), or CACI No. 3946, Punitive
Damages—Entity Defendant—Bifurcated Trial (First Phase). When damages are
sought against individual defendants, use CACI No. 3941, Punitive
Damages—Individual Defendant—Bifurcated Trial (First Phase).
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
If any of the alternative grounds for seeking punitive damages are inapplicable to
the facts of the case, they may be omitted.
See CACI No. 3940, Punitive Damages—Individual Defendant—Trial Not
Bifurcated, for additional sources and authority.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• Deferral of Financial Condition Evidence to Second Stage. Civil Code section
3295(d).
• “[E]vidence of ratification of [agent’s] actions by [defendant] and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
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• “[Section 3295(d)] affects the order of proof at trial, precluding the admission of
evidence of defendants’ financial condition until after the jury has returned a
verdict for plaintiffs awarding actual damages and found that one or more
defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil
Code section 3294.” (City of El Monte v. Superior Court (1994) 29 Cal.App.4th
272, 274–275 [34 Cal.Rptr.2d 490], internal citations omitted.)
• “Evidence of the defendant’s financial condition is a prerequisite to an award of
punitive damages. In order to protect defendants from the premature disclosure
of their financial position when punitive damages are sought, the Legislature
enacted Civil Code section 3295.” (City of El Monte, supra, 29 Cal.App.4th at p.
276, internal citations omitted.)
• “[C]ourts have held it is reversible error to try the punitive damages issue to a
new jury after the jury which found liability has been excused.” (Rivera v.
Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal
citations omitted.)
• “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
and he or she willfully fails to avoid such consequences. [Citation.] Malice may
be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences. [Citation.]’ ” (Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [164 Cal.Rptr.3d 112].)
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
• “Section 3294 is no longer silent on who may be responsible for imputing
punitive damages to a corporate employer. For corporate punitive damages
liability, section 3294, subdivision (b), requires that the wrongful act giving rise
to the exemplary damages be committed by an ‘officer, director, or managing
agent.’ ” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19,
981 P.2d 944].)
• “[I]n performing, ratifying, or approving the malicious conduct, the agent must
be acting as the organization’s representative, not in some other capacity.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 723.)
• “[T]he concept [of managing agent] assumes that such individual was acting in a
corporate or employment capacity when the conduct giving rise to the punitive
damages claim against the employer occurred.” (College Hospital, Inc., supra, 8
Cal.4th at p. 723.)
• “No purpose would be served by punishing the employer for an employee’s
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conduct that is wholly unrelated to its business or to the employee’s duties
therein.” (College Hospital, Inc., supra, 8 Cal.4th at pp. 723–724.)
• “[T]he determination of whether certain employees are managing agents ‘ “does
not necessarily hinge on their ‘level’ in the corporate hierarchy. Rather, the
critical inquiry is the degree of discretion the employees possess in making
decisions . . . .” ’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886 [164 Cal.Rptr.3d 811].)
• “Although it is generally true . . . that an employee’s hierarchy in a corporation
is not necessarily determinative of his or her status as a managing agent of a
corporation, evidence showing an employee’s hierarchy and job duties,
responsibilities, and authority may be sufficient, absent conclusive proof to the
contrary, to support a reasonable inference by a trier of fact that the employee is
a managing agent of a corporation.” (Davis v. Kiewit Pacific Co. (2013) 220
Cal.App.4th 358, 370 [162 Cal.Rptr.3d 805].)
• “[W]e conclude the Legislature intended the term ‘managing agent’ to include
only those corporate employees who exercise substantial independent authority
and judgment in their corporate decision making so that their decisions
ultimately determine corporate policy. The scope of a corporate employee’s
discretion and authority under our test is therefore a question of fact for decision
on a case-by-case basis.” (White, supra, 21 Cal.4th at pp. 566–567.)
• “In order to demonstrate that an employee is a true managing agent under
section 3294, subdivision (b), a plaintiff seeking punitive damages would have to
show that the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th at p.
577.)
• “ ‘[C]orporate policy’ is the general principles which guide a corporation, or
rules intended to be followed consistently over time in corporate operations. A
‘managing agent’ is one with substantial authority over decisions that set these
general principles and rules.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160,
167–168 [99 Cal.Rptr.2d 435].)
• “The key inquiry thus concerns the employee’s authority to change or establish
corporate policy. The fact that an employee has a supervisory position with the
power to terminate employees under his or her control does not, by itself, render
the employee a managing agent. Nor does the fact that an employee supervises a
large number of employees necessarily establish that status.” (CRST, Inc. v.
Superior Court (2017) 11 Cal.App.5th 1255, 1273 [218 Cal.Rptr.3d 664].)
• “ ‘[R]atification’ is the ‘[c]onfirmation and acceptance of a previous act.’ A
corporation cannot confirm and accept that which it does not actually know
about.” (Cruz, supra, 83 Cal.App.4th at p. 168.)
• “For purposes of determining an employer’s liability for punitive damages,
ratification generally occurs where, under the particular circumstances, the
employer demonstrates an intent to adopt or approve oppressive, fraudulent, or
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malicious behavior by an employee in the performance of his job duties.”
(College Hospital, Inc., supra, 8 Cal.4th at p. 726.)
• “Corporate ratification in the punitive damages context requires actual
knowledge of the conduct and its outrageous nature.” (College Hospital, Inc.,
supra, 8 Cal.4th at p. 726.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
California Tort Damages (Cont.Ed.Bar) Punitive Damages, §§ 14.13–14.14, 14.23
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.07, 54.24[4][d]
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51[17]
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.24 et seq.
(Matthew Bender)
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3949. Punitive Damages—Individual and Corporate Defendants
(Corporate Liability Based on Acts of Named
Individual)—Bifurcated Trial (Second Phase)
You must now decide the amount, if any, that you should award [name of
plaintiff] in punitive damages. The purposes of punitive damages are to
punish a wrongdoer for the conduct that harmed the plaintiff and to
discourage similar conduct in the future.
There is no fixed formula for determining the amount of punitive
damages, and you are not required to award any punitive damages. If
you decide to award punitive damages, you should consider all of the
following factors separately for each defendant in determining the
amount:
(a) How reprehensible was that defendant’s conduct? In deciding
how reprehensible a defendant’s conduct was, you may consider,
among other factors:
1. Whether the conduct caused physical harm;
2. Whether the defendant disregarded the health or safety of
others;
3. Whether [name of plaintiff] was financially weak or vulnerable
and the defendant knew [name of plaintiff] was financially weak
or vulnerable and took advantage of [him/her/nonbinary
pronoun/it];
4. Whether the defendant’s conduct involved a pattern or
practice; and
5. Whether the defendant acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive
damages and [name of plaintiff]’s harm [or between the amount of
punitive damages and potential harm to [name of plaintiff] that
the defendant knew was likely to occur because of
[his/her/nonbinary pronoun/its] conduct]?
(c) In view of that defendant’s financial condition, what amount is
necessary to punish [him/her/nonbinary pronoun/it] and discourage
future wrongful conduct? You may not increase the punitive
award above an amount that is otherwise appropriate merely
because a defendant has substantial financial resources. [Any
award you impose may not exceed that defendant’s ability to
pay.]
[Punitive damages may not be used to punish a defendant for the impact
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of [his/her/nonbinary pronoun/its] alleged misconduct on persons other
than [name of plaintiff].]
New September 2003; Revised April 2004, October 2004, June 2006, April 2007,
August 2007, October 2008
Directions for Use
Read the bracketed language at the end of the first sentence of factor (b) only if
there is evidence that the conduct of defendant that allegedly gives rise to liability
and punitive damages either caused or foreseeably threatened to cause harm to
plaintiff that would not be included in an award of compensatory damages. (Simon
v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 [29 Cal.Rptr.3d 379,
113 P.3d 63].) The bracketed phrase concerning “potential harm” might be
appropriate, for example, if damages actually caused by the defendant’s acts are not
recoverable because they are barred by statute (id. at p. 1176, citing Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 929 [148 Cal.Rptr. 389, 582 P.2d 980] [in a
bad faith insurance case, plaintiff died before judgment, precluding her estate’s
recovery of emotional distress damages]), or if the harm caused by defendant’s acts
could have been great, but by chance only slight harm was inflicted. (Simon, supra,
35 Cal.4th at p. 1177, citing TXO Production Corp. v. Alliance Resources Corp.
(1993) 509 U.S. 443, 459 [113 S.Ct. 2711, 125 L.Ed.2d 366] [considering the
hypothetical of a person wildly firing a gun into a crowd but by chance only
damaging a pair of glasses].) The bracketed phrase should not be given if an award
of compensatory damages is the “true measure” of the harm or potential harm
caused by defendant’s wrongful acts. (Simon, supra, 35 Cal.4th at pp. 1178–1179
[rejecting consideration for purposes of assessing punitive damages of the plaintiff’s
loss of the benefit of the bargain if the jury had found that there was no binding
contract].)
Read the optional final sentence of factor (c) only if the defendant has presented
relevant evidence regarding that issue.
Read the optional final sentence if there is a possibility that in arriving at an amount
of punitive damages, the jury might consider harm that the defendant’s conduct may
have caused to nonparties. (See Philip Morris USA v. Williams (2007) 549 U.S. 346,
353–354 [127 S.Ct. 1057, 166 L.Ed.2d 940].) Harm to others may be relevant to
determining reprehensibility based on factors (a)(2) (disregard of health or safety of
others) and (a)(4) (pattern or practice). (See State Farm Mutual Automobile
Insurance Co. v. Campbell (2003) 538 U.S. 408, 419 [123 S.Ct. 1513, 155 L.Ed.2d
585].)
“A jury must be instructed . . . that it may not use evidence of out-of-state conduct
to punish a defendant for action that was lawful in the jurisdiction where it
occurred.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p.
422.) An instruction on this point should be included within this instruction if
appropriate to the facts.
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Courts have stated that “[p]unitive damages previously imposed for the same
conduct are relevant in determining the amount of punitive damages required to
sufficiently punish and deter. The likelihood of future punitive damage awards may
also be considered, although it is entitled to considerably less weight.” (Stevens v.
Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1661 [57 Cal.Rptr.2d
525], internal citations omitted.) The court in Stevens suggested that the following
instruction be given if evidence of other punitive damage awards is introduced into
evidence:
If you determine that a defendant has already been assessed with punitive
damages based on the same conduct for which punitive damages are requested
in this case, you may consider whether punitive damages awarded in other cases
have sufficiently punished and made an example of the defendant. You must not
use the amount of punitive damages awarded in other cases to determine the
amount of the punitive damage award in this case, except to the extent you
determine that a lesser award, or no award at all, is justified in light of the
penalties already imposed. (Stevens, supra, 49 Cal.App.4th at p. 1663, fn. 7.)
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• Evidence of Profits or Financial Condition. Civil Code section 3295(d).
• “[Section 3295(d)] affects the order of proof at trial, precluding the admission of
evidence of defendants’ financial condition until after the jury has returned a
verdict for plaintiffs awarding actual damages and found that one or more
defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil
Code section 3294.” (City of El Monte v. Superior Court (1994) 29 Cal.App.4th
272, 274–275 [34 Cal.Rptr.2d 490], internal citations omitted.)
• “Evidence of the defendant’s financial condition is a prerequisite to an award of
punitive damages. In order to protect defendants from the premature disclosure
of their financial position when punitive damages are sought, the Legislature
enacted Civil Code section 3295.” (City of El Monte, supra, 29 Cal.App.4th at p.
276, internal citations omitted.)
• “[C]ourts have held it is reversible error to try the punitive damages issue to a
new jury after the jury which found liability has been excused.” (Rivera v.
Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal
citations omitted.)
• “The purpose of punitive damages is to punish wrongdoers and thereby deter the
commission of wrongful acts.” (Neal, supra, 21 Cal.3d at p. 928, fn. 13.)
• “Punitive damages are to be assessed in an amount which, depending upon the
defendant’s financial worth and other factors, will deter him and others from
committing similar misdeeds. Because compensatory damages are designed to
make the plaintiff ‘whole,’ punitive damages are a ‘windfall’ form of recovery.”
(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
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• “It follows that the wealthier the wrongdoing defendant, the larger the award of
exemplary damages need be in order to accomplish the statutory objective.”
(Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65 [118 Cal.Rptr. 184,
529 P.2d 608].)
• “ ‘A plaintiff, upon establishing his case, is always entitled of right to
compensatory damages. But even after establishing a case where punitive
damages are permissible, he is never entitled to them. The granting or
withholding of the award of punitive damages is wholly within the control of the
jury, and may not legally be influenced by any direction of the court that in any
case a plaintiff is entitled to them. Upon the clearest proof of malice in fact, it is
still the exclusive province of the jury to say whether or not punitive damages
shall be awarded. A plaintiff is entitled to such damages only after the jury, in
the exercise of its untrammeled discretion, has made the award.’ ” (Brewer v.
Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 801 [197 P.2d
713], internal citations omitted.)
• “In light of our holding that evidence of a defendant’s financial condition is
essential to support an award of punitive damages, Evidence Code section 500
mandates that the plaintiff bear the burden of proof on the issue. A plaintiff
seeking punitive damages is not seeking a mere declaration by the jury that he is
entitled to punitive damages in the abstract. The plaintiff is seeking an award of
real money in a specific amount to be set by the jury. Because the award,
whatever its amount, cannot be sustained absent evidence of the defendant’s
financial condition, such evidence is ‘essential to the claim for relief.’ ” (Adams
v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318, 813 P.2d 1348],
internal citation omitted.)
• “A defendant is in the best position to know his or her financial condition, and
cannot avoid a punitive damage award by failing to cooperate with discovery
orders. [¶] A number of cases have held that noncompliance with a court order
to disclose financial condition precludes a defendant from challenging the
sufficiency of the evidence of a punitive damages award on appeal.” (Fernandes
v. Singh (2017) 16 Cal.App.5th 932, 942 [224 Cal.Rptr.3d 751].)
• “[T]he purpose of punitive damages is not served by financially destroying a
defendant. The purpose is to deter, not to destroy.” (Adams, supra, 54 Cal.3d at
p. 112.)
• “[A] punitive damages award is excessive if it is disproportionate to the
defendant’s ability to pay.” (Adams, supra, 54 Cal.3d at p. 112, internal citations
omitted.)
• “It has been recognized that punitive damages awards generally are not
permitted to exceed 10 percent of the defendant’s net worth.” (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1166 [74 Cal.Rptr.2d 510].)
• “While ‘there is no rigid formula and other factors may be dispositive especially
when net worth is manipulated and fails to reflect actual wealth,’ net worth is
often described as ‘the critical determinant of financial condition.’ [¶] A plaintiff
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seeking punitive damages must provide a balanced overview of the defendant’s
financial condition; a selective presentation of financial condition evidence will
not survive scrutiny.” (Farmers & Merchants Trust Co. v. Vanetik (2019) 33
Cal.App.5th 638, 648 [245 Cal.Rptr.3d 608], internal citation omitted.)
• “[N]et worth is not the only measure of a defendant’s wealth for punitive
damages purposes that is recognized by the California courts. ‘Indeed, it is likely
that blind adherence to any one standard [of determining wealth] could
sometimes result in awards which neither deter nor punish or which deter or
punish too much.’ ” (Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68,
79 [139 Cal.Rptr.3d 849].)
• “[T]he ‘net’ concept of the net worth metric remains critical. ‘In most cases,
evidence of earnings or profit alone are not sufficient “without examining the
liabilities side of the balance sheet.” [Citations.]’ ” (Soto v. BorgWarner Morse
TEC Inc. (2015) 239 Cal.App.4th 165, 194 [191 Cal.Rptr.3d 263], internal
citations omitted.)
• “[W]e are afforded guidance by certain established principles, all of which are
grounded in the purpose and function of punitive damages. One factor is the
particular nature of the defendant’s acts in light of the whole record; clearly,
different acts may be of varying degrees of reprehensibility, and the more
reprehensible the act, the greater the appropriate punishment, assuming all other
factors are equal. Another relevant yardstick is the amount of compensatory
damages awarded; in general, even an act of considerable reprehensibility will
not be seen to justify a proportionally high amount of punitive damages if the
actual harm suffered thereby is small. Also to be considered is the wealth of the
particular defendant; obviously, the function of deterrence will not be served if
the wealth of the defendant allows him to absorb the award with little or no
discomfort. By the same token, of course, the function of punitive damages is
not served by an award which, in light of the defendant’s wealth and the gravity
of the particular act, exceeds the level necessary to properly punish and deter.”
(Neal, supra, 21 Cal.3d at p. 928, internal citations and footnote omitted.)
• “[T]he Constitution’s Due Process Clause forbids a State to use a punitive
damages award to punish a defendant for injury that it inflicts upon nonparties or
those whom they directly represent, i.e., injury that it inflicts upon those who
are, essentially, strangers to the litigation.” (Philip Morris USA, supra, 549 U.S.
at p. 353.)
• “Evidence of actual harm to nonparties can help to show that the conduct that
harmed the plaintiff also posed a substantial risk of harm to the general public,
and so was particularly reprehensible—although counsel may argue in a
particular case that conduct resulting in no harm to others nonetheless posed a
grave risk to the public, or the converse. Yet for the reasons given above, a jury
may not go further than this and use a punitive damages verdict to punish a
defendant directly on account of harms it is alleged to have visited on
nonparties.” (Philip Morris USA, supra, 549 U.S. at p. 355.)
• “ ‘Due process does not permit courts, in the calculation of punitive damages, to
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adjudicate the merits of other parties’ hypothetical claims against a defendant
under the guise of the reprehensibility analysis . . . . Punishment on these bases
creates the possibility of multiple punitive damages awards for the same
conduct . . . .’ This does not mean, however, that the defendant’s similar
wrongful conduct toward others should not be considered in determining the
amount of punitive damages.” (Bullock v. Philip Morris USA, Inc. (2011) 198
Cal.App.4th 543, 560 [131 Cal.Rptr.3d 382].)
• “Though due process does not permit courts or juries, in the calculation of
punitive damages, to adjudicate the merits of other parties’ hypothetical claims
against a defendant under the guise of the reprehensibility analysis, this does not
mean that the defendant’s similar wrongful conduct toward others should not be
considered in determining the amount of punitive damages. . . . ‘[T]o consider
the defendant’s entire course of conduct in setting or reviewing a punitive
damages award, even in an individual plaintiff’s lawsuit, is not to punish the
defendant for its conduct toward others. An enhanced punishment for recidivism
does not directly punish the earlier offense; it is, rather, “ ‘ “a stiffened penalty
for the last crime, which is considered to be an aggravated offense because a
repetitive one.” ’ ” . . . By placing the defendant’s conduct on one occasion into
the context of a business practice or policy, an individual plaintiff can
demonstrate that the conduct toward him or her was more blameworthy and
warrants a stronger penalty to deter continued or repeated conduct of the same
nature.’ ” (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 986, fn. 10
[180 Cal.Rptr.3d 382], internal citations omitted.)
• “[A] specific instruction encompassing both the permitted and prohibited uses of
evidence of harm caused to others would be appropriate in the new trial if
requested by the parties. We believe that an instruction on these issues should
clearly distinguish between the permitted and prohibited uses of such evidence
and thus make clear to the jury the purposes for which it can and cannot
consider that evidence. A jury may consider evidence of harm caused to others
for the purpose of determining the degree of reprehensibility of a defendant’s
conduct toward the plaintiff in deciding the amount of punitive damages, but it
may not consider that evidence for the purpose of punishing the defendant
directly for harm caused to others. In our view, Judicial Council of California
Civil Jury Instructions (Aug. 2007 rev.) CACI Nos. 3940, 3942, 3943, 3945,
3947, and 3949 could convey this distinction better by stating more explicitly
that evidence of harm caused to others may be considered for the one purpose
but not for the other, and by providing that explanation together with the
reprehensibility factors rather than in connection with the reasonable relationship
issue.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 695, fn.
21 [71 Cal.Rptr.3d 775], internal citation omitted.)
• “ ‘[T]he most important indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defendant’s conduct.’ We have
instructed courts to determine the reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed to economic; the tortious
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conduct evinced an indifference to or a reckless disregard of the health or safety
of others; the target of the conduct had financial vulnerability; the conduct
involved repeated actions or was an isolated incident; and the harm was the
result of intentional malice, trickery, or deceit, or mere accident. The existence
of any one of these factors weighing in favor of a plaintiff may not be sufficient
to sustain a punitive damages award; and the absence of all of them renders any
award suspect.” (State Farm Mutual Automobile Insurance Co., supra, 538 U.S.
at p. 419, internal citation omitted.)
• “[I]n a case involving physical harm, the physical or physiological vulnerability
of the target of the defendant’s conduct is an appropriate factor to consider in
determining the degree of reprehensibility, particularly if the defendant
deliberately exploited that vulnerability.” (Bullock, supra, 198 Cal.App.4th at p.
562, internal citation omitted.)
• “[W]e have been reluctant to identify concrete constitutional limits on the ratio
between harm, or potential harm, to the plaintiff and the punitive damages
award. We decline again to impose a bright-line ratio which a punitive damages
award cannot exceed. Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a single-digit ratio
between punitive and compensatory damages, to a significant degree, will satisfy
due process. . . . [A]n award of more than four times the amount of
compensatory damages might be close to the line of constitutional
impropriety. . . . While these ratios are not binding, they are instructive. They
demonstrate what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of deterrence
and retribution, than awards with ratios in range of 500 to 1 . . . .” (State Farm
Mutual Automobile Insurance Co., supra, 538 U.S. at pp. 424–425, internal
citation omitted.)
• “Nonetheless, because there are no rigid benchmarks that a punitive damages
award may not surpass, ratios greater than those we have previously upheld may
comport with due process where ‘a particularly egregious act has resulted in
only a small amount of economic damages.’ The converse is also true, however.
When compensatory damages are substantial, then a lesser ratio, perhaps only
equal to compensatory damages, can reach the outermost limit of the due process
guarantee. The precise award in any case, of course, must be based upon the
facts and circumstances of the defendant’s conduct and the harm to the plaintiff.”
(State Farm Mutual Automobile Insurance Co., supra, 538 U.S. at p. 425,
internal citation omitted.)
• “In determining whether a punitive damages award is unconstitutionally
excessive, Brandt fees may be included in the calculation of the ratio of punitive
to compensatory damages, regardless of whether the fees are awarded by the
trier of fact as part of its verdict or are determined by the trial court after the
verdict has been rendered.” (Nickerson v. Stonebridge Life Ins. Co. (2016) 63
Cal.4th 363, 368 [203 Cal.Rptr.3d 23, 371 P.3d 242].)
• “The decision to award punitive damages is exclusively the function of the trier
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of fact. So too is the amount of any punitive damage award. The relevant
considerations are the nature of the defendant’s conduct, the defendant’s wealth,
and the plaintiff’s actual damages.” (Gagnon v. Continental Casualty Co. (1989)
211 Cal.App.3d 1598, 1602 [260 Cal.Rptr. 305], internal citations omitted.)
• “The wealth of a defendant cannot justify an otherwise unconstitutional punitive
damages award.” (State Farm Mutual Automobile Insurance Co., supra, 538
U.S. at p. 427, internal citation omitted.)
• “[I]n some cases, the defendant’s financial condition may combine with high
reprehensibility and a low compensatory award to justify an extraordinary ratio
between compensatory and punitive damages. [Citation.]” (Nickerson v.
Stonebridge Life Ins. Co. (Nickerson II) (2016) 5 Cal.App.5th 1, 26 [209
Cal.Rptr.3d 690].)
• “In light of our discussion, we conclude that even where, as here, punitive but
not compensatory damages are available to the plaintiff, the defendant is entitled
to an instruction that punitive damages must bear a reasonable relation to the
injury, harm, or damage actually suffered by the plaintiff and proved at trial.
Consequently, the trial court erred in failing to so instruct the jury.” (Gagnon,
supra, 211 Cal.App.3d at p. 1605.)
• “We conclude that the rule . . . that an award of exemplary damages must be
accompanied by an award of compensatory damages [or its equivalent] is still
sound. That rule cannot be deemed satisfied where the jury has made an express
determination not to award compensatory damages.” (Cheung v. Daley (1995) 35
Cal.App.4th 1673, 1677 [42 Cal.Rptr.2d 164], footnote omitted.)
• “With the focus on the plaintiff’s injury rather than the amount of compensatory
damages, the [‘reasonable relation’] rule can be applied even in cases where only
equitable relief is obtained or where nominal damages are awarded or, as here,
where compensatory damages are unavailable.” (Gagnon, supra, 211 Cal.App.3d
at p. 1605.)
• “The high court in TXO [TXO Production Corp., supra] and BMW [BMW of
North America, Inc. v. Gore (1996) 517 U.S. 559 [116 S.Ct. 1589, 134 L.Ed.2d
809]] has refined the disparity analysis to take into account the potential loss to
plaintiffs, as where a scheme worthy of punitive damages does not fully succeed.
In such cases, the proper ratio would be the ratio of punitive damages to the
potential harm to plaintiff.” (Sierra Club Found. v. Graham (1999) 72
Cal.App.4th 1135, 1162, fn. 15 [85 Cal.Rptr.2d 726], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
Haning et al., California Practice Guide: Personal Injury, Ch. 3-E, Punitive
Damages, ¶¶ 3:1703–3:1708 (The Rutter Group)
California Tort Damages (Cont.Ed.Bar 2d ed.) Punitive Damages, §§ 14.1–14.12,
14.21, 14.39
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.07, 54.24[4][d]
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(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.141 et seq.,
64.174 et seq. (Matthew Bender)
3950–3959. Reserved for Future Use
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3960. Comparative Fault of Plaintiff—General Verdict
If you decide that [name of plaintiff]’s negligence combined with [name of
defendant]’s [negligence/conduct/product] in causing [name of plaintiff]’s
harm, then you must decide the percentage of responsibility for the
harm that you attribute to each of them.
First, decide the total amount of [name of plaintiff]’s damages. Then
decide the percentage of responsibility that [name of plaintiff] and [name
of defendant] have for the damages. Then reduce the total damages by
the percentage of responsibility that you attribute to [name of plaintiff].
After you make these calculations, state the reduced damage award in
your verdict.
New September 2003; Revised December 2009
Sources and Authority
• “In determining to what degree the injury was due to the fault of the plaintiff, it
is logically essential that the plaintiff’s negligence be weighed against the
combined total of all other causative negligence; moreover, inasmuch as a
plaintiff’s actual damages do not vary by virtue of the particular defendants who
happen to be before the court, we do not think that the damages which a plaintiff
may recover against defendants who are joint and severally liable should
fluctuate in such a manner.” (American Motorcycle Assn. v. Superior Court
(1978) 20 Cal.3d 578, 590, fn. 2 [146 Cal.Rptr. 182, 578 P.2d 899].)
• “Proposition 51 . . . retains the joint liability of all tortfeasors, regardless of
their respective shares of fault, with respect to all objectively provable expenses
and monetary losses. On the other hand, the more intangible and subjective
categories of damage were limited by Proposition 51 to a rule of strict
proportionate liability. With respect to these noneconomic damages, the plaintiff
alone now assumes the risk that a proportionate contribution cannot be obtained
from each person responsible for the injury.” (DaFonte v. Up-Right, Inc. (1992)
2 Cal.4th 593, 600 [7 Cal.Rptr.2d 238, 828 P.2d 140].)
Secondary Sources
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.45
(Matthew Bender)
33 California Points and Authorities, Ch. 380, Negligence, § 380.170 (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.380 (Matthew
Bender)
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3961. Duty to Mitigate Damages for Past Lost Earnings
[Name of plaintiff] is not entitled to recover damages for economic losses
that [name of defendant] proves [name of plaintiff] could have avoided by
returning to gainful employment as soon as it was reasonable for [him/
her/nonbinary pronoun] to do so.
To calculate the amount of damages you must:
1. Determine the amount [name of plaintiff] would have earned from
the job [he/she/nonbinary pronoun] held at the time
[he/she/nonbinary pronoun] was injured; and
2. Subtract the amount [name of plaintiff] earned or could have
earned by returning to gainful employment.
The resulting amount is [name of plaintiff]’s damages for past lost
earnings.
New September 2003; Revised December 2015
Directions for Use
For an instruction on mitigation of damages involving personal injury, see CACI
No. 3930, Mitigation of Damages (Personal Injury).
Sources and Authority
• “A plaintiff has a duty to mitigate damages and cannot recover losses it could
have avoided through reasonable efforts.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46
Cal.App.4th 1559, 1568 [54 Cal.Rptr.2d 468].)
• “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers
damage as a result of either a breach of contract or a tort has a duty to take
reasonable steps to mitigate those damages and will not be able to recover for
any losses which could have been thus avoided.’ A plaintiff may not recover for
damages avoidable through ordinary care and reasonable exertion. The duty to
mitigate damages does not require an injured party to do what is unreasonable or
impracticable. ‘The rule of mitigation of damages has no application where its
effect would be to require the innocent party to sacrifice and surrender important
and valuable rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th
1686, 1691 [32 Cal.Rptr.2d 329], internal citations omitted.)
• “Whether a plaintiff acted reasonably to mitigate damages, however, is a factual
matter to be determined by the trier of fact, and is reviewed under the substantial
evidence test. The burden of proving a plaintiff failed to mitigate damages,
however, is on the defendant, not the other way around.” (Powerhouse
Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th
867, 884 [164 Cal.Rptr.3d 811].)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 945
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798
4 Levy et al., California Torts, Ch. 53, Mitigation of Damages (Avoidable
Consequences) and the Collateral Source Rule, § 53.02 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.48
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.170 et seq.
(Matthew Bender)
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3962. Duty to Mitigate Damages for Future Lost Earnings
[Name of plaintiff] is not entitled to recover damages for future economic
losses that [name of defendant] proves [name of plaintiff] will be able to
avoid by returning to gainful employment as soon as it is reasonable for
[him/her/nonbinary pronoun] to do so.
If you decide that [name of plaintiff] will be able to return to work, then
you must not award [him/her/nonbinary pronoun] any damages for the
amount [he/she/nonbinary pronoun] will be able to earn from future
gainful employment. To calculate the amount of damages you must:
1. Determine the amount [name of plaintiff] would have earned from
the job [he/she/nonbinary pronoun] held at the time
[he/she/nonbinary pronoun] was injured; and
2. Subtract the amount [name of plaintiff] is reasonably able to earn
from alternate employment.
The resulting amount is [name of plaintiff]’s damages for future lost
earnings.
New September 2003
Directions for Use
For an instruction on mitigation of damages involving personal injury, see CACI
No. 3930, Mitigation of Damages (Personal Injury).
Sources and Authority
• “A plaintiff has a duty to mitigate damages and cannot recover losses it could
have avoided through reasonable efforts.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46
Cal.App.4th 1559, 1568 [54 Cal.Rptr.2d 468].)
• “It is the employer’s burden ‘to affirmatively prove failure to mitigate as an
affirmative defense.’ ” (Mize-Kurzman v. Marin Community College Dist. (2012)
202 Cal.App.4th 832, 871 [136 Cal.Rptr.3d 259].)
• “Whether a plaintiff acted reasonably to mitigate damages, however, is a factual
matter to be determined by the trier of fact, and is reviewed under the substantial
evidence test.” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp.,
U.S.A. (2013) 221 Cal.App.4th 867, 884 [164 Cal.Rptr.3d 811].)
• “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers
damage as a result of either a breach of contract or a tort has a duty to take
reasonable steps to mitigate those damages and will not be able to recover for
any losses which could have been thus avoided.’ A plaintiff may not recover for
damages avoidable through ordinary care and reasonable exertion. The duty to
mitigate damages does not require an injured party to do what is unreasonable or
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impracticable. ‘The rule of mitigation of damages has no application where its
effect would be to require the innocent party to sacrifice and surrender important
and valuable rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th
1686, 1691 [32 Cal.Rptr.2d 329], internal citations omitted.)
• “Had plaintiff actually retired and taken her retirement pension, we are
convinced the trial court would have been required to exclude evidence of
plaintiff’s retirement benefits as a collateral source. . . . [¶] It seems to us to
make little sense to allow introduction into evidence of retirement benefits that
plaintiff never received on the issue of mitigation where such evidence would
have been precluded under the collateral source rule had she actually received
the benefits. It appears the court viewed the issue as one of fact, akin to the
question whether plaintiff made reasonable efforts to mitigate her damages by
seeking comparable or substantially similar employment.” (Mize-Kurzman, supra,
202 Cal.App.4th at p. 877.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1798–1801
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-F, Mitigation
Of Damages (Avoidable Consequences Doctrine), ¶¶ 17:490–17:557 (The Rutter
Group)
4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expenses and
Economic Loss, § 52.10 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, §§ 177.46, 177.48
(Matthew Bender)
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3963. Affirmative Defense—Employee’s Duty to Mitigate Damages
[Name of defendant] claims that if [name of plaintiff] is entitled to any
damages, they should be reduced by the amount that [name of plaintiff]
could have earned from other employment. To succeed, [name of
defendant] must prove all of the following:
1. That employment substantially similar to [name of plaintiff]’s
former job was available to [him/her/nonbinary pronoun];
2. That [name of plaintiff] failed to make reasonable efforts to seek
[and retain] this employment; and
3. The amount that [name of plaintiff] could have earned from this
employment.
In deciding whether the employment was substantially similar, you
should consider, among other factors, whether:
(a) The nature of the work was different from [name of plaintiff]’s
employment with [name of defendant];
(b) The new position was substantially inferior to [name of
plaintiff]’s former position;
(c) The salary, benefits, and hours of the job were similar to
[name of plaintiff]’s former job;
(d) The new position required similar skills, background, and
experience;
(e) The job responsibilities were similar; [and]
(f) The job was in the same locality; [and]
(g) [insert other relevant factor(s)].
[In deciding whether [name of plaintiff] failed to make reasonable efforts
to retain comparable employment, you should consider whether [name of
plaintiff] quit or was discharged from that employment for a reason
within [his/her/nonbinary pronoun] control.]
New September 2003; Revised February 2007, December 2014; Revised and
Renumbered from CACI No. 2407 November 2018
Directions for Use
This instruction may be given for any claim in which the plaintiff seeks to recover
damages for past and future lost earnings from an employer for a wrongful
termination of employment, for example in violation of public policy (see CACI No.
2400 et seq.) or under the Fair Employment and Housing Act (see CACI No. 2500
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et seq.), when there is evidence that the employee’s damages could have been
mitigated. The bracketed language at the end of the instruction regarding plaintiff’s
failure to retain a new job is based on the holding in Stanchfield v. Hamer Toyota,
Inc. (1995) 37 Cal.App.4th 1495, 1502-1503 [44 Cal.Rptr.2d 565].
In deciding whether the plaintiff could have obtained a substantially similar job, the
trier of fact may consider several factors, including salary, benefits, hours of work
per day, hours of work per year, locality, and availability of a merit-based system.
(See California School Employees Assn. v. Personnel Commission (1973) 30
Cal.App.3d 241, 250–255 [106 Cal.Rptr. 283].) Read only those factors that have
been shown by the evidence.
Sources and Authority
• “The general rule is that the measure of recovery by a wrongfully discharged
employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment. However,
before projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived; the employee’s rejection of or
failure to seek other available employment of a different or inferior kind may not
be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-Fox
Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689],
internal citations omitted; see also Rabago-Alvarez v. Dart Industries, Inc. (1976)
55 Cal.App.3d 91, 98 [127 Cal.Rptr. 222] [“Plaintiff concedes that the trial court
was entitled to deduct her actual earnings”]; but see Villacorta v. Cemex Cement,
Inc. (2013) 221 Cal.App.4th 1425, 1432 [165 Cal.Rptr.3d 441] [wages actually
earned from an inferior job may not be used to mitigate damages].)
• “[B]efore projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived . . . .” (Kao v. University of
San Francisco (2014) 229 Cal.App.4th 437, 454 [177 Cal.Rptr.3d 145].)
• “The burden is on the employer to prove that substantially similar employment
was available which the wrongfully discharged employee could have obtained
with reasonable effort.” (Chyten v. Lawrence & Howell Investments (1993) 23
Cal.App.4th 607, 616 [46 Cal.Rptr.2d 459].)
• “[W]e conclude that the trial court should not have deducted from plaintiff’s
recovery against defendant the amount that the court found she might have
earned in employment which was substantially inferior to her position with
defendant.” (Rabago-Alvarez, supra, 55 Cal.App.3d at p. 99.)
• “[I]n those instances where the jury determines the employee was fired from a
substantially similar position for cause, any amount the employee with
reasonable effort could have earned by retaining that employment should be
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deducted from the amount of damages which otherwise would have been
awarded to the employee under the terms of the original employment
agreement.” (Stanchfield, supra, 37 Cal.App.4th at pp. 1502–1503.)
• “The location of the new job is one of the factors to consider in determining
whether the new job is inferior.” (Villacorta, supra, 221 Cal.App.4th at p. 1432.)
• “There is some authority for the proposition that whether or not the other
employment is comparable or substantially similar or equivalent to the prior
position is a question of fact. On the other hand the issue of substantial
similarity or inferiority of employment is one that has often been decided as a
matter of law in California.” (California School Employees Assn., supra, 30
Cal.App.3d at pp. 253–254, internal citations omitted.)
• “The court could reasonably admit the evidence of other available jobs and leave
the question of their substantial similarity to the jury.” (Kao, supra, 229
Cal.App.4th at p. 454.)
• “[S]elf-employment is not unreasonable mitigation as long as the discharged
employee applies sufficient effort trying to make the business successful, even if
those efforts fail.” (Cordero-Sacks v. Housing Authority of City of Los Angeles
(2011) 200 Cal.App.4th 1267, 1284–1285 [134 Cal.Rptr.3d 883].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-F, Mitigation
Of Damages (Avoidable Consequences Doctrine), ¶¶ 17:490, 17:492, 17:495, 17:497,
17:499–17:501 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.40–8.41
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[4] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.18, 249.65 (Matthew Bender)
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3964. Jurors Not to Consider Attorney Fees and Court Costs
You must not consider, or include as part of any award, attorney fees or
expenses that the parties incurred in bringing or defending this lawsuit.
New June 2006
Directions for Use
This instruction is intended to prevent jurors from improperly factoring attorney fees
into their damage awards. Do not use this instruction in cases in which attorney fees
are a jury issue.
Secondary Sources
15 California Forms of Pleading and Practice, Ch. 174, Costs and Attorney’s Fees
(Matthew Bender)
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3965. No Deduction for Workers’ Compensation Benefits Paid
Do not consider whether or not [name of plaintiff] received workers’
compensation benefits for [his/her/nonbinary pronoun] injuries. If you
decide in favor of [name of plaintiff], you should determine the amount of
your verdict according to my instructions concerning damages.
New September 2003; Revised December 2009; Renumbered from CACI No. 3963
November 2018
Directions for Use
This instruction is intended for use in conjunction with a special verdict form if the
judge may need to make deductions from the verdict to avoid a double recovery. It
may also be read if there are no allegations regarding the employer’s comparative
fault.
Sources and Authority
• “Since the employer was not negligent, the death benefits paid did not constitute
an impermissible double recovery but rather a payment for plaintiff’s loss from a
source wholly independent of the wrongdoer.” (Curtis v. State of California ex
rel. Department of Transportation (1982) 128 Cal.App.3d 668, 682 [180
Cal.Rptr. 843].)
• “Here the collateral source was workers’ compensation benefits paid by the
[defendant]’s policy. Under the general principles just described, this would not
be an independent source; defendant is the policyholder, so the collateral source
rule would not apply. Yet the California Supreme Court held that the rule did
apply in a case in which an employee received benefits from the employer’s
workers’ compensation policy and then sued a third party tortfeasor, the
compensation insurer having waived its right of subrogation against the third
party.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 637 [210
Cal.Rptr.3d 362] [action by employee against employer on claim alleged to not
be within scope of employment].)
• “ ‘The average reasonably well-informed person who may be called to serve
upon a jury knows that a workman injured in his employment receives
compensation. It is a delusion to think that this aspect of the case can be kept
from the minds of the jurors simply by not alluding to it in the course of the
trial.’ ” (Berryman v. Bayshore Construction Co. (1962) 207 Cal.App.2d 331,
336 [24 Cal.Rptr. 380], internal citations omitted.)
• “To prevent a double recovery, the court may instruct the jury to segregate types
of damage as between the employee and employer, awarding to the employee
only those tort damages not recoverable by the employer.” (Demkowski v. Lee
(1991) 233 Cal.App.3d 1251, 1259 [284 Cal.Rptr. 919], footnote omitted.)
• “Alternatively, the jury may generally be instructed on the types of tort damages
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to which the employee may be entitled and then given a special verdict form
that requires the jury to find whether the defendant was negligent, whether the
negligence was the proximate cause of the employee’s injuries, what the
employee’s total tort damages are, without taking into account his or her receipt
of workers’ compensation benefits, and what the reasonable amount of benefits
paid by the employer were. Thereafter, the court enters individual judgments on
the special verdict for the amounts to which the employee and employer are
entitled.” (Demkowski, supra, 233 Cal.App.3d at p. 1259, footnote omitted.)
• “Prior to Proposition 51, a negligent third party was allowed an offset for the
workers’ compensation benefits paid to the plaintiff. This prevented double
recovery under the then-existing joint and several liability rule. Proposition 51,
however, limited joint and several liability to plaintiff’s economic damages.”
(Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App.4th 187, 197 [78
Cal.Rptr.2d 861].)
• “The Espinoza approach has provided an effective solution for preverdict
settlements, and we believe that it is also the most suitable means of dealing
with workers’ compensation benefits.” (Torres v. Xomox Corp. (1996) 49
Cal.App.4th 1, 37 [56 Cal.Rptr.2d 455].)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 23, 28–30, 35
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.10 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.319 (Matthew Bender)
3966–3999. Reserved for Future Use
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VF-3900. Punitive Damages
We answer the questions submitted to us as follows:
1. Did [name of defendant] engage in the conduct with malice,
oppression, or fraud?
1. Yes No
1. [If your answer to question 1 is yes, then answer question 2. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
2. What amount of punitive damages, if any, do you award [name of
plaintiff]? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2008, December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Normally, this form should be combined with the verdict form(s) on the underlying
cause(s) of action. Include question 2 if the trial is not bifurcated.
This form is based on CACI No. 3940, Punitive Damages—Individual
Defendant—Trial Not Bifurcated, and CACI No. 3941, Punitive
Damages—Individual Defendant—Bifurcated Trial (First Phase).
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VF-3901. Punitive Damages Against Employer or Principal for
Conduct of a Specific Agent or Employee
We answer the questions submitted to us as follows:
1. Did [name of agent/employee] engage in the conduct with malice,
oppression, or fraud?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of employee/agent] an officer, director, or managing
agent of [name of defendant] acting on behalf of [name of
defendant]?
2. Yes No
2. [If your answer to question 2 is yes, then answer question 3. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
3. What amount of punitive damages, if any, do you award [name of
plaintiff]? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2008, December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Normally, this verdict form should be combined with the verdict form(s) on the
underlying cause(s) of action. Include question 3 if the trial is not bifurcated.
This form is based on CACI No. 3943, Punitive Damages Against Employer or
Principal for Conduct of a Specific Agent or Employee—Trial Not Bifurcated, and
CACI No. 3944, Punitive Damages Against Employer or Principal for Conduct of a
Specific Agent or Employee—Bifurcated Trial (First Phase).
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VF-3901 DAMAGES
Depending on the facts of the case, alternative grounds for liability may be
substituted in question 2, as in CACI No. 3943.
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VF-3902. Punitive Damages—Entity Defendant
We answer the questions submitted to us as follows:
1. Was the conduct constituting malice, oppression, or fraud
committed by one or more officers, directors, or managing agents
of [name of defendant] acting on behalf of [name of defendant]?
1. Yes No
1. [If your answer to question 1 is yes, then answer question 2. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
2. What amount of punitive damages, if any, do you award [name of
plaintiff]? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2008, December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Normally, this verdict form should be combined with the verdict form(s) on the
underlying cause(s) of action. Include question 2 if the trial is not bifurcated.
This form is based on CACI No. 3945, Punitive Damages—Entity Defendant—Trial
Not Bifurcated, and CACI No. 3946, Punitive Damages—Entity
Defendant—Bifurcated Trial (First Phase). This form is intended to address the first
bracketed option in CACI Nos. 3945 and 3946.
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VF-3903. Punitive Damages—Entity Defendant—Ratification
We answer the questions submitted to us as follows:
1. Did an agent or employee of [name of defendant] engage in the
conduct with malice, oppression, or fraud?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did one or more officers, directors, or managing agents of [name
of defendant] know of this conduct and adopt or approve it after
it occurred?
2. Yes No
2. [If your answer to question 2 is yes, then answer question 3. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
3. What amount of punitive damages, if any, do you award [name of
plaintiff]? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2008, December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Normally, this verdict form should be combined with the verdict form(s) on the
underlying cause(s) of action. Include question 3 if the trial is not bifurcated.
This form is based on CACI No. 3945, Punitive Damages—Entity Defendant—Trial
Not Bifurcated, and CACI No. 3946, Punitive Damages—Entity
Defendant—Bifurcated Trial (First Phase). This form is intended to address the third
bracketed option in CACI Nos. 3945 and 3946.
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VF-3904. Punitive Damages—Entity Defendant—Authorization
We answer the questions submitted to us as follows:
1. Did an agent or employee of [name of defendant] engage in the
conduct with malice, oppression, or fraud?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did one or more officers, directors, or managing agents of [name
of defendant] authorize this conduct?
2. Yes No
2. [If your answer to question 2 is yes, then answer question 3. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
3. What amount of punitive damages, if any, do you award [name of
plaintiff]? $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2008, December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Normally, this form should be combined with the verdict form(s) on the underlying
cause(s) of action. Include question 3 if the trial is not bifurcated.
This form is based on CACI No. 3945, Punitive Damages—Entity Defendant—Trial
Not Bifurcated, and CACI No. 3946, Punitive Damages—Entity
Defendant—Bifurcated Trial (First Phase). This form is intended to address the
second bracketed option in CACI Nos. 3945 and 3946.
Users may wish to combine this verdict form with the verdict form(s) on the
underlying cause(s) of action.
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VF-3905. Damages for Wrongful Death (Death of an Adult)
We answer the questions submitted to us as follows:
1. What are [name of plaintiff]’s economic damages?
[a. Past financial support that [name of
decedent] would have contributed
to the family: $ ]
[b. Future financial support that [name of
decedent] would have contributed to the
family: $ ]
[c. Past losses of gifts or benefits that
[name of plaintiff] would have
expected to receive from [name of
decedent]: $ ]
[d. Future losses of gifts or benefits that
[name of plaintiff] would have expected
to receive from [name of
decedent]: $ ]
[e. [Name of decedent]’s funeral and burial
expenses: $ ]
[f. Past household services that
[name of decedent] would have
provided: $ ]
[g. Future household services that
[name of decedent] would have
provided: $ ]
2. What are [name of plaintiff]’s noneconomic damages?
[a. The loss of [name of decedent]’s love,
companionship, comfort, care, assistance,
protection, affection, society, and moral
support, [and] [the enjoyment of sexual
relations/[name of decedent]’s training and
guidance] from [insert date of death] to the
present: $ ]
[b. The loss of [name of decedent ]’s love,
companionship, comfort, care, assistance,
protection, affection, society, and moral
support, [and] [the enjoyment of sexual
relations/[name of decedent]’s training
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DAMAGES VF-3905
and guidance] from today
forward: $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010, December 2016
Directions for Use
This form is based on CACI No. 3921, Wrongful Death (Death of an Adult).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Delete any questions that do not apply to the facts of the case. Normally, this form
should be combined with the verdict form(s) on the underlying cause(s) of action.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3906. Damages for Wrongful Death (Parents’ Recovery for
Death of a Minor Child)
We answer the questions submitted to us as follows:
1. What are [name of plaintiff]’s economic damages?
[a. Past financial support that [name of
decedent] would have contributed
to the family: $ ]
[b. Future financial support that [name of
decedent] would have contributed to the
family: $ ]
[c. Past losses of gifts or benefits that
[name of plaintiff] would have
expected to receive from [name of
decedent]: $ ]
[d. Future losses of gifts or benefits that
[name of plaintiff] would have expected
to receive from [name of
decedent]: $ ]
[e. [Name of decedent]’s funeral and burial
expenses: $ ]
[f. Past household services that
[name of decedent] would have
provided: $ ]
[g. Future household services that
[name of decedent] would have
provided: $ ]
2. What are [name of plaintiff]’s noneconomic damages?
[a. The loss of [name of decedent]’s love,
companionship, comfort, care, assistance,
protection, affection, society, and moral
support from [insert date of death] to the
present: $ ]
[b. The loss of [name of decedent]’s love,
companionship, comfort, care, assistance,
protection, affection, society, and moral
support from today forward: $ ]
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Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010, December 2016
Directions for Use
This form is based on CACI No. 3922, Wrongful Death (Parents’ Recovery for
Death of a Minor Child).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Delete any questions that do not apply to the facts of the case. Normally, this form
should be combined with the verdict form(s) on the underlying cause(s) of action.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-3907. Damages for Loss of Consortium (Noneconomic
Damage)
We answer the question submitted to us as follows:
1. What are [name of plaintiff]’s damages for loss of
[his/her/nonbinary pronoun] [husband/wife]’s love, companionship,
comfort, care, assistance, protection, affection, society, moral
support, and enjoyment of sexual relations [or the ability to have
children]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Normally, this form should be combined with the verdict form(s) on the underlying
cause(s) of action. Insert the name of the spouse of the injured party as “name of
plaintiff.”
This form is based on CACI No. 3920, Loss of Consortium (Noneconomic
Damage).
VF-3908–VF-3919. Reserved for Future Use
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VF-3920. Damages on Multiple Legal Theories
What are [name of plaintiff]’s damages? [List each item of damages listed
in CACI No. 3934.]
1. [e.g., economic damages: lost past earnings]. [Enter the amount
below if you find that [name of defendant] is liable to [name of
plaintiff] under [specify all of the legal theories supporting this
element of damages; use “or” if more than one].]
$
2. [e.g., economic damages: past medical expenses]. [Enter the amount
below if you find that [name of defendant] is liable to [name of
plaintiff] under [specify the legal theories supporting this element of
damages; use “or” if more than one].]
$
3. [e.g., economic damages: lost future earnings]. [Enter the amount
below if you find that [name of defendant] is liable to [name of
plaintiff] under [specify the legal theories supporting this element of
damages; use “or” if more than one].]
$
4. [e.g., economic damages: future medical expenses]. [Enter the
amount below if you find that [name of defendant] is liable to
[name of plaintiff] under [specify the legal theories supporting this
element of damages; use “or” if more than one].]
$
5. [e.g., past noneconomic loss including [physical pain/mental
suffering].] [Enter the amount below if you find that [name of
defendant] is liable to [name of plaintiff] under [specify the legal
theories supporting this element of damages; use “or” if more than
one].]
$
6. [e.g., future noneconomic loss including [physical pain/mental
suffering].] [Enter the amount below if you find that [name of
defendant] is liable to [name of plaintiff] under [specify the legal
theories supporting this element of damages; use “or” if more than
one].]
$
TOTAL $
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VF-3920 DAMAGES
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2010
Directions for Use
This verdict form is for use with CACI No. 3934, Damages on Multiple Legal
Theories. Together they are designed to avoid the jury’s awarding the same damages
twice under different causes of action, counts, or legal theories, or failing to
distinguish sufficiently what damages are being awarded under what cause of action,
count, or legal theory.
If multiple causes of action are at issue, use this verdict form instead of the
damages tables in each separate verdict form. If multiple verdict forms will be
combined, delete all damages tables and incorporate this verdict form instead.
List each item of damages identified in CACI No. 3934. Include each item only
once regardless of the number of claims under which the item may be recovered.
The sentence after the item of damages must be included if the item is not
recoverable under all causes of action, counts, or legal theories asserted against the
defendant. The jury must be advised to find damages only if it has found liability on
at least one theory under which the item is recoverable. For example, lost past
earnings might be recoverable under all claims, in which case the additional
sentence should be omitted. But noneconomic damages for metal suffering might be
recoverable only under “the claim for bad-faith breach of insurance contract,” in
which case the additional sentence must be included.
Often it will be necessary to identify items of damages with considerable specificity.
For example, instead of just “emotional distress,” it may be necessary to specify
“emotional distress from harassment before termination of employment” and
“additional emotional distress because of termination of employment.” (See, e.g.,
Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 701–705 [101 Cal.Rptr.3d 773, 219
P.3d 749].)
VF-3921–VF-3999. Reserved for Future Use
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Life Expectancy Table—Male
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LETM DAMAGES
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Life Expectancy Table—Female
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LETF DAMAGES
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LANTERMAN-PETRIS-SHORT ACT
4000. Conservatorship—Essential Factual Elements
4001. “Mental Disorder” Explained
4002. “Gravely Disabled” Explained
4003. “Gravely Disabled” Minor Explained
4004. Issues Not to Be Considered
4005. Obligation to Prove—Reasonable Doubt
4006. Sufficiency of Indirect Circumstantial Evidence
4007. Third Party Assistance
4008. Third Party Assistance to Minor
4009. Physical Restraint
4010. Limiting Instruction—Expert Testimony
4011. History of Disorder Relevant to the Determination of Grave Disability
4012. Concluding Instruction
4013. Disqualification From Voting
4014–4099. Reserved for Future Use
VF-4000. Conservatorship—Verdict Form
VF-4001–VF-4099. Reserved for Future Use
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4000. Conservatorship—Essential Factual Elements
[Name of petitioner] claims that [name of respondent] is gravely disabled
due to [a mental disorder/impairment by chronic alcoholism] and
therefore should be placed in a conservatorship. In a conservatorship, a
conservator is appointed to oversee, under the direction of the court, the
care of persons who are gravely disabled due to a mental disorder or
chronic alcoholism. To succeed on this claim, [name of petitioner] must
prove beyond a reasonable doubt all of the following:
1. That [name of respondent] [has a mental disorder/is impaired by
chronic alcoholism]; [and]
2. That [name of respondent] is gravely disabled as a result of the
[mental disorder/chronic alcoholism][; and/.]
[3. That [name of respondent] is unwilling or unable voluntarily to
accept meaningful treatment.]
New June 2005; Revised June 2016
Directions for Use
There is a split of authority as to whether element 3 is required. (Compare
Conservatorship of Symington (1989) 209 Cal.App.3d 1464, 1467 [257 Cal.Rptr.
860] [“[M]any gravely disabled individuals are simply beyond treatment”] with
Conservatorship of Davis (1981) 124 Cal.App.3d 313, 328 [177 Cal.Rptr. 369] [jury
should be allowed to consider all factors that bear on whether person should be on
LPS conservatorship, including willingness to accept treatment].)
Sources and Authority
• Right to Jury Trial. Welfare and Institutions Code section 5350(d).
• “Gravely Disabled” Defined. Welfare and Institutions Code section 5008(h).
• “The Lanterman-Petris-Short Act (the act) governs the involuntary treatment of
the mentally ill in California. Enacted by the Legislature in 1967, the act
includes among its goals ending the inappropriate and indefinite commitment of
the mentally ill, providing prompt evaluation and treatment of persons with
serious mental disorders, guaranteeing and protecting public safety, safeguarding
the rights of the involuntarily committed through judicial review, and providing
individualized treatment, supervision and placement services for the gravely
disabled by means of a conservatorship program.” (Conservatorship of Susan T.
(1994) 8 Cal.4th 1005, 1008–1009 [36 Cal.Rptr.2d 40, 884 P.2d 988].)
• “LPS Act commitment proceedings are subject to the due process clause because
significant liberty interests are at stake. But an LPS Act proceeding is civil.
‘[T]he stated purposes of the LPS Act foreclose any argument that an LPS
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LANTERMAN-PETRIS-SHORT ACT CACI No. 4000
commitment is equivalent to criminal punishment in its design or purpose.’ Thus,
not all safeguards required in criminal proceedings are required in LPS Act
proceedings.” (Conservatorship of P.D. (2018) 21 Cal.App.5th 1163, 1167 [231
Cal.Rptr.3d 79], internal citations omitted.)
• “The clear import of the LPS Act is to use the involuntary commitment power of
the state sparingly and only for those truly necessary cases where a ‘gravely
disabled’ person is incapable of providing for his basic needs either alone or
with help from others.” (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274,
1280 [221 Cal.Rptr.3d 622].)
• “The right to a jury trial upon the establishment of conservatorship is
fundamental to the protections afforded by the LPS. As related, that right is
expressly extended to the reestablishment of an LPS conservatorship.”
(Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 1037 [226 Cal.Rptr.
33], internal citations omitted.)
• “[T]he trial court erred in accepting counsel’s waiver of [conservatee]’s right to a
jury trial . . . . (Estate of Kevin A. (2015) 240 Cal.App.4th 1241, 1253 [193
Cal.Rptr.3d 237].)
• “ ‘The due process clause of the California Constitution requires that proof
beyond a reasonable doubt and a unanimous jury verdict be applied to
conservatorship proceedings under the LPS Act.’ An LPS commitment order
involves a loss of liberty by the conservatee. Consequently, it follows that a trial
court must obtain a waiver of the right to a jury trial from the person who is
subject to an LPS commitment.” (Conservatorship of Heather W. (2016) 245
Cal.App.4th 378, 382–383 [199 Cal.Rptr.3d 689].)
• “We . . . hold that a person sought to be made an LPS conservatee subject to
involuntary confinement in a mental institution, is entitled to have a unanimous
jury determination of all of the questions involved in the imposition of such a
conservatorship, and not just on the issue of grave disability in the narrow sense
of whether he or she can safely survive in freedom and provide food, clothing or
shelter unaided by willing, responsible relatives, friends or appropriate third
persons.” (Conservatorship of Davis, supra, 124 Cal.App.3d at p. 328.)
• “The jury should determine if the person voluntarily accepts meaningful
treatment, in which case no conservatorship is necessary. If the jury finds the
person will not accept treatment, then it must determine if the person can meet
his basic needs on his own or with help, in which case a conservatorship is not
justified.” (Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1092–1093
[242 Cal.Rptr. 289].)
• “Our research has failed to reveal any authority for the proposition [that] without
a finding that the proposed conservatee is unable or unwilling to voluntarily
accept treatment, the court must reject a conservatorship in the face of grave
disability. . . . Some persons with grave disabilities are beyond treatment. Taken
to its logical conclusion, they would be beyond the LPS Act’s reach, according
to the argument presented in this appeal.” (Conservatorship of Symington, supra,
209 Cal.App.3d at p. 1469.)
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• “The party seeking imposition of the conservatorship must prove the proposed
conservatee’s grave disability beyond a reasonable doubt and the verdict must be
issued by a unanimous jury.” (Conservatorship of Susan T., supra, 8 Cal.4th at p.
1009, internal citation omitted.)
• “Although there is no private right of action for a violation of section 5152,
‘aggrieved individuals can enforce the [LPS] Act’s provisions through other
common law and statutory causes of action, such as negligence, medical
malpractice, false imprisonment, assault, battery, declaratory relief, United States
Code section 1983 for constitutional violations, and Civil Code section 52.1.
[Citations.]’ ” (Swanson v. County of Riverside (2019) 36 Cal.App.5th 361, 368
[248 Cal.Rptr.3d 476].)
Secondary Sources
15 Witkin, Summary of California Law (11th ed. 2017) Wills and Probate, § 1007
3 Witkin, California Procedure (5th ed. 2008) Actions, § 97
2 California Conservatorship Practice (Cont.Ed.Bar) Ch. 23
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.30 et
seq. (Matthew Bender)
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4001. “Mental Disorder” Explained
The term “mental disorder” is limited to those disorders described in the
Diagnostic and Statistical Manual of Mental Disorders of the American
Psychiatric Association. This book is sometimes referred to as “the DSM
[current edition, e.g., “IV”].”
New June 2005
Directions for Use
This instruction is not intended for cases proceeding on a theory of impairment by
chronic alcoholism only.
Sources and Authority
“The term ‘mental disorder’ is limited to those disorders listed by the American
Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders
(Cal. Admin. Code, tit. 9, § 813).” (Conservatorship of Chambers (1977) 71
Cal.App.3d 277, 282, fn. 5 [139 Cal.Rptr. 357].) “Although this [administrative]
regulation has since been repealed, the practice has been to continue using the same
definition.” (California Conservatorship Practice (Cont.Ed.Bar) § 23.11.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, § 97
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.11
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.33
(Matthew Bender)
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4002. “Gravely Disabled” Explained
The term “gravely disabled” means that a person is presently unable to
provide for the person’s basic needs for food, clothing, or shelter because
of [a mental health disorder/impairment by chronic alcoholism]. [The
term “gravely disabled” does not include persons with intellectual
disabilities by reason of the disability alone.]
[[Insert one or more of the following:] [psychosis/bizarre or eccentric
behavior/delusions/hallucinations/[insert other]] [is/are] not enough, by
[itself/themselves], to find that [name of respondent] is gravely disabled.
[He/She/Nonbinary pronoun] must be unable to provide for the basic
needs of food, clothing, or shelter because of [a mental
disorder/impairment by chronic alcoholism].]
[If you find [name of respondent] will not take [his/her/nonbinary pronoun]
prescribed medication without supervision and that a mental disorder
makes [him/her/nonbinary pronoun] unable to provide for
[his/her/nonbinary pronoun] basic needs for food, clothing, or shelter
without such medication, then you may conclude [name of respondent] is
presently gravely disabled.
In determining whether [name of respondent] is presently gravely
disabled, you may consider evidence that [he/she/nonbinary pronoun] did
not take prescribed medication in the past. You may also consider
evidence of [his/her/nonbinary pronoun] lack of insight into
[his/her/nonbinary pronoun] mental condition.]
In considering whether [name of respondent] is presently gravely disabled,
you may not consider the likelihood of future deterioration or relapse of
a condition.
New June 2005; Revised January 2018, May 2019, May 2020
Directions for Use
This instruction provides the definition of “gravely disabled” from Welfare and
Institutions Code section 5008(h)(1)(A), which will be the applicable standard in
most cases. The instruction applies to both adults and minors. (Conservatorship of
M.B. (2018) 27 Cal.App.5th 98, 107 [237 Cal.Rptr.3d 775].)
Read the bracketed sentence at the end of the first paragraph if appropriate to the
facts of the case. There is a second standard in Welfare and Institutions Code
section 5008(h)(1)(B) involving a finding of mental incompetence under Penal Code
section 1370. A different instruction will be required if this standard is alleged.
The last paragraph regarding the likelihood of future deterioration may not apply if
the respondent has no insight into the respondent’s mental disorder.
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LANTERMAN-PETRIS-SHORT ACT CACI No. 4002
(Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1576–1577 [254 Cal.Rptr.
552].)
If there is evidence concerning the availability of third parties that are willing to
provide assistance to the proposed conservatee, see CACI No. 4007, Third Party
Assistance.
Sources and Authority
• “Gravely Disabled” Defined. Welfare and Institutions Code section 5008(h).
• “The enactment of the LPS and with it the substitution of ‘gravely disabled’ for
‘in need of treatment’ as the basis for commitment of individuals not dangerous
to themselves or others reflects a legislative determination to meet the
constitutional requirements of precision. The term ‘gravely disabled’ is
sufficiently precise to exclude unusual or nonconformist lifestyles. It connotes an
inability or refusal on the part of the proposed conservatee to care for basic
personal needs of food, clothing and shelter.” (Conservatorship of Chambers
(1977) 71 Cal.App.3d 277, 284 [139 Cal.Rptr. 357], footnotes omitted.)
• “[T]he public guardian must prove beyond a reasonable doubt that the proposed
conservatee is gravely disabled.” (Conservatorship of Jesse G. (2016) 248
Cal.App.4th 453, 461 [203 Cal.Rptr.3d 667].)
• “The stricter criminal standard is used because the threat to the conservatee’s
individual liberty and personal reputation is no different than the burdens
associated with criminal prosecutions.” (Conservatorship of Smith (1986) 187
Cal.App.3d 903, 909 [232 Cal.Rptr. 277] internal citations omitted.)
• “Bizarre or eccentric behavior, even if it interferes with a person’s normal
intercourse with society, does not rise to a level warranting conservatorship
except where such behavior renders the individual helpless to fend for herself or
destroys her ability to meet those basic needs for survival.” (Conservatorship of
Smith, supra, 187 Cal.App.3d at p. 909.)
• “Under [Welfare and Institutions Code] section 5350, subdivision (e)(1), ‘a
person is not “gravely disabled” if that person can survive safely without
involuntary detention with the help of responsible family, friends, or others who
are both willing and able to help provide for the person’s basic personal needs
for food, clothing, or shelter.’ ” (Conservatorship of Jesse G., supra, 248
Cal.App.4th at p. 460.)
• “While [third person] may not have shown that he could manage appellant’s
mental health symptoms as adeptly as would a person professionally trained to
care for someone with a mental disorder, that is not the standard. As appellant
states, ‘[t]he question in a LPS conservatorship case where the proposed
conservatee asserts a third party assistance claim is not whether the third party
will be able to manage the person’s mental health symptoms completely. Rather,
the dispositive question is whether the person is able to provide the proposed
conservatee with food, clothing, and shelter on a regular basis.”
(Conservatorship of Jesse G., supra, 248 Cal.App.4th at p. 463 fn. 4.)
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• “We . . . hold that a person sought to be made an LPS conservatee subject to
involuntary confinement in a mental institution, is entitled to have a unanimous
jury determination of all of the questions involved in the imposition of such a
conservatorship, and not just on the issue of grave disability in the narrow sense
of whether he or she can safely survive in freedom and provide food, clothing or
shelter unaided by willing, responsible relatives, friends or appropriate third
persons.” (Conservatorship of Davis (1981) 124 Cal.App.3d 313, 328 [177
Cal.Rptr. 369].)
• “[A]n individual who will not voluntarily accept mental health treatment is not
for that reason alone gravely disabled.” (Conservatorship of Symington (1989)
209 Cal.App.3d 1464, 1468 [257 Cal.Rptr. 860].)
• “[T]he pivotal issue is whether [respondent] was ‘presently’ gravely disabled and
the evidence demonstrates that he was not. Accordingly, the order granting the
petition must be overturned.” (Conservatorship of Benvenuto (1986) 180
Cal.App.3d. 1030, 1034 [226 Cal.Rptr. 33], fn. omitted, citing to
Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 18 [184 Cal.Rptr. 363].)
• “[A] conservatorship cannot be established because of a perceived likelihood of
future relapse. To do so could deprive the liberty of persons who will not suffer
such a relapse solely because of the pessimistic statistical odds. Because of the
promptness with which a conservatorship proceeding can be invoked the cost in
economic and liberty terms is unwarranted.” (Conservatorship of Neal (1987)
190 Cal.App.3d 685, 689 [235 Cal.Rptr. 577].)
• “A perceived likelihood of future relapse, without more, is not enough to justify
establishing a conservatorship. Neither can such a likelihood justify keeping a
conservatorship in place if its subject is not presently gravely disabled, in light
of the statutory provisions allowing rehearings to evaluate a conservatee’s
current status.” (Conservatorship of Jones (1989) 208 Cal.App.3d 292, 302 [256
Cal.Rptr. 415], internal citation omitted.)
• “[T]he definition of ‘ “[g]ravely disabled minor” ’ from section 5585.25 is not
part of the LPS Act, but is found in the Children’s Civil Commitment and
Mental Health Treatment Act of 1988. (§ 5585.) This definition applies ‘only to
the initial 72 hours of mental health evaluation and treatment provided to a
minor. . . . Evaluation and treatment of a minor beyond the initial 72 hours shall
be pursuant to the . . . [LPS Act].’ (§ 5585.20.) Accordingly, we must apply the
definition found in the LPS Act, and determine whether there was substantial
evidence Minor suffered from a mental disorder as a result of which she ‘would
be unable to provide for [her] basic personal needs’ if she had to so provide.”
(Conservatorship of M.B., supra, 27 Cal.App.5th at p. 107.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, § 97
2 California Conservatorship Practice (Cont.Ed.Bar) §§ 23.3, 23.5
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
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Disabilities: Judicial Commitment, Health Services, and Civil Rights, §§ 361A.33,
361A.42 (Matthew Bender)
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4003. “Gravely Disabled” Minor Explained
Revoked May 2019. See Conservatorship of M.B. (2018) 27 Cal.App.5th
98, 107 [237 Cal.Rptr.3d 775].)
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4004. Issues Not to Be Considered
In determining whether [name of respondent] is gravely disabled, you
must not consider or discuss the type of treatment, care, or supervision
that may be ordered if a conservatorship is established.
New June 2005
Sources and Authority
• “Petitioner’s proposed jury instruction reads as follows: ‘You are instructed that
the matter of what kind or type of treatment, care or supervision shall be
rendered is not a part of your deliberation, and shall not be considered in
determining whether or not [proposed conservatee] is or is not gravely disabled.
The problem of treatment, care and supervision of a gravely disabled person and
whether or not he shall be detained in a sanitarium, private hospital, or state
institution, is not within the province of the jury, but is a matter to be considered
by the conservator in the event that the jury finds that [proposed conservatee] is
gravely disabled.’ [¶] [T]he instruction should be given.” (Conservatorship of
Baber (1984) 153 Cal.App.3d 542, 553 & fn. 7 [200 Cal.Rptr. 262].)
• “[I]nformation about the consequences of conservatorship for [proposed
conservatee] was irrelevant to the only question before [the] jury: whether, as a
result of a mental disorder, he is unable to provide for his basic personal needs
for food, clothing, or shelter.” (Conservatorship of P.D. (2018) 21 Cal.App.5th
1163, 1168 [231 Cal.Rptr.3d 79].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, § 97
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.89
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.33
(Matthew Bender)
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4005. Obligation to Prove—Reasonable Doubt
[Name of respondent] is presumed not to be gravely disabled. [Name of
petitioner] has the burden of proving beyond a reasonable doubt that
[name of respondent] is gravely disabled. The fact that a petition has been
filed claiming [name of respondent] is gravely disabled is not evidence
that this claim is true.
Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that [name of respondent] is gravely disabled as a
result of [a mental disorder/impairment by chronic alcoholism]. The
evidence need not eliminate all possible doubt because everything in life
is open to some possible or imaginary doubt.
In deciding whether [name of respondent] is gravely disabled, you must
impartially compare and consider all the evidence that was received
throughout the entire trial.
Unless the evidence proves that [name of respondent] is gravely disabled
because of [a mental disorder/impairment by chronic alcoholism] beyond
a reasonable doubt, you must find that [he/she/nonbinary pronoun] is not
gravely disabled.
Although a conservatorship is a civil proceeding, the burden of proof is
the same as in criminal trials.
New June 2005; Revised June 2016
Directions for Use
The presumption in the first sentence of the instruction is perhaps open to question.
Two older cases have held that there is such a presumption. (See Conservatorship of
Law (1988) 202 Cal.App.3d 1336, 1340 [249 Cal.Rptr. 415]; Conservatorship of
Walker (1987) 196 Cal.App.3d 1082, 1099 [242 Cal.Rptr. 289].) However, these
holdings may have been based on the assumption that the California Supreme Court
had incorporated all protections for criminal defendants into LPS proceedings. (See
Conservatorship of Roulet (1979) 23 Cal.3d 219, 235 [152 Cal.Rptr. 425, 590 P.2d
1] [proof beyond reasonable doubt and unanimous jury verdict required].)
Subsequent cases have made it clear that an LPS respondent is not entitled to all of
the same protections as a criminal defendant. (See Conservatorship of Ben C. (2007)
40 Cal.4th 529, 538 [53 Cal.Rptr.3d 856, 150 P.3d 738] [exclusionary rule and
Wende review do not apply in LPS].)
Sources and Authority
• “A proposed conservatee has a constitutional right to a finding based on proof
beyond a reasonable doubt. Without deciding whether the court has a sua sponte
duty to so instruct, we are satisfied that, on request, a court is required to
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instruct in language emphasizing a proposed conservatee is presumed to not be
gravely disabled until the state carries its burden of proof.” (Conservatorship of
Walker, supra, 196 Cal.App.3d at p. 1099, internal citation omitted.)
• “[I]f requested, a court is required to instruct that a proposed conservatee is
presumed not to be gravely disabled until the state carries its burden of proof.”
(Conservatorship of Law, supra, 202 Cal.App.3d at p. 1340.)
• But see People v. Beeson (2002) 99 Cal.App.4th 1393, 1409 [122 Cal.Rptr.2d
384]: “Even if we view the presumption in a more general sense as a warning
against the consideration of extraneous factors, we cannot conclude that the
federal and state Constitutions require a presumption-of-innocence-like
instruction outside the context of a criminal case. Particularly, we conclude that,
based on the civil and nonpunitive nature of involuntary commitment
proceedings, a mentally ill or disordered person would not be deprived of a fair
trial without such an instruction.”
• “Neither mental disorder nor grave disability is a crime.” (Conservatorship of
Davis (1981) 124 Cal.App.3d 313, 330 [177 Cal.Rptr. 369].)
• “More recently this court has recognized, however, that the analogy between
criminal proceedings and proceedings under the LPS Act is imperfect at best and
that not all of the safeguards required in the former are appropriate to the latter.”
(See Conservatorship of Ben C., supra, 40 Cal.4th at p. 538.)
• “In Roulet, the California Supreme Court held that due process requires proof
beyond a reasonable doubt and jury unanimity in conservatorship proceedings.
However, subsequent appellate court decisions have not extended the application
of criminal law concepts in this area.” (Conservatorship of Maldonado (1985)
173 Cal.App.3d 144, 147 [218 Cal.Rptr. 796].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 97, 104
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.81
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.33
(Matthew Bender)
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4006. Sufficiency of Indirect Circumstantial Evidence
You may not decide that [name of respondent] is gravely disabled based
substantially on indirect evidence unless this evidence:
1. Is consistent with the conclusion that [name of respondent] is
gravely disabled due to [a mental disorder/impairment by chronic
alcoholism]; and
2. Cannot be explained by any other reasonable conclusion.
If the indirect evidence suggests two reasonable interpretations, one of
which suggests the existence of a grave disability and the other its
nonexistence, then you must accept the interpretation that suggests [name
of respondent] is not gravely disabled.
If, on the other hand, one interpretation of this evidence appears to you
to be reasonable and the other interpretation to be unreasonable, you
must accept the reasonable interpretation and reject the unreasonable
one.
If you base your verdict on indirect evidence, [name of petitioner] must
prove beyond a reasonable doubt each fact essential to your conclusion
that [name of respondent] is gravely disabled.
New June 2005
Directions for Use
Read this instruction immediately after CACI No. 202, Direct and Indirect
Evidence.
Sources and Authority
• “[W]here proof to establish a conservatorship for a person alleged to be gravely
disabled is based upon substantially circumstantial evidence, the proposed
conservatee is entitled, on request in an appropriate case, to have the jurors
instructed as to the principles relevant when applying circumstantial evidence to
the beyond a reasonable doubt burden of proof.” (Conservatorship of Walker
(1987) 196 Cal.App.3d 1082, 1088 [242 Cal.Rptr. 289].)
• “A proposed conservatee is entitled to procedural due process protections similar
to a criminal defendant since fundamental liberty rights are at stake. The trial
court had a sua sponte duty to correctly instruct on the general principles of law
necessary for the jury’s understanding of the case.” (Conservatorship of Walker,
supra, 196 Cal.App.3d at p. 1092, fn. 5, internal citations omitted.)
• “The court has no duty to give the [circumstantial evidence jury instructions
applicable to criminal cases] in a case where the circumstantial evidence
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necessary to prove a certain mental state is not subject to any inference except
that pointing to the existence of that mental state.” (Conservatorship of Walker,
supra, 196 Cal.App.3d at p. 1098; Conservatorship of Law (1988) 202
Cal.App.3d 1336, 1342 [249 Cal.Rptr. 415].)
• “Where a noncriminal case is to be evaluated by a reasonable doubt standard, it
follows that a party on a proper state of the evidence is entitled on request to
have jurors informed of the manner in which that standard must be established
when the evidence consists substantially of circumstantial evidence.”
(Conservatorship of Walker, supra, 196 Cal.App.3d at p. 1098.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 100, 104
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.90
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.33
(Matthew Bender)
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4007. Third Party Assistance
A person is not “gravely disabled” if [he/she/nonbinary pronoun] can
survive safely with the help of third party assistance. Third party
assistance is the aid of family, friends, or others who are responsible,
willing, and able to help provide for the person’s basic needs for food,
clothing, or shelter.
You must not consider offers by family, friends, or others unless they
[have testified to/stated specifically in writing] their willingness and
ability to help provide [name of respondent] with food, clothing, or
shelter. Well-intended offers of assistance are not sufficient unless they
will ensure the person can survive safely.
[Assistance provided by a correctional facility does not constitute third
party assistance.]
New June 2005
Sources and Authority
• Help of Family or Friends. Welfare and Institutions Code section 5350(e).
• “[A] person is not ‘gravely disabled’ within the meaning of section 5008,
subdivision (h)(1) if he or she is capable of surviving safely in freedom with the
help of willing and responsible family members, friends or third parties.”
(Conservatorship of Davis (1981) 124 Cal.App.3d 313, 321 [177 Cal.Rptr. 369].)
• “As we view the broad purpose of the LPS Act, imposition of a conservatorship
should be made only in situations where it is truly necessary. To accomplish this
purpose evidence of the availability of third party assistance must be
considered.” (Conservatorship of Early (1983) 35 Cal.3d 244, 253 [197 Cal.Rptr.
539, 673 P.2d 209].)
• “The California Supreme Court in Conservatorship of Early . . . concluded
although a person might be gravely disabled if left to his or her own devices, he
or she may be able to function successfully in freedom with the support and
assistance of family and friends. The court recognized almost everyone depends
to a greater or lesser extent upon others in order to survive in our complex
society.” (Conservatorship of Jones (1989) 208 Cal.App.3d 292, 299 [256
Cal.Rptr. 415].)
• “In Conservatorship of Early . . . the Supreme Court held that it was error for
the trial court to refuse to admit evidence of and to fail to instruct on the
‘availability of assistance of others to meet the basic needs of a person afflicted
with a mental disorder.’ ” (Conservatorship of Baber (1984) 153 Cal.App.3d
542, 552–553 [200 Cal.Rptr. 262], citation omitted.)
• “Corrections custody does not qualify as third party assistance under the LPS
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Act as interpreted by case law.” (Conservatorship of Jones, supra, 208
Cal.App.3d at p. 303.)
• “Under section 5350, subdivision (e)(1), a person is not gravely disabled only if
he or she can survive safely with the assistance of a third party. There is
substantial evidence that the assistance offered by [respondent’s mother], while
well-intended, would not meet this requirement.” (Conservatorship of Johnson
(1991) 235 Cal.App.3d 693, 699 [1 Cal.Rptr. 2d 46], original italics, footnote
omitted.)
• “The parties have raised the issue of whether section 5350, subdivision (e)(2),
precluded the trial court from considering [petitioner’s mother’s] testimony on
the issue of third party assistance. This section provides that third parties shall
not be considered willing or able to provide assistance unless they so indicate in
writing. This section has no application in this case. The purpose of section
5350, subdivision (e), ‘is to avoid the necessity for, and the harmful effects of,
requiring family, friends, and others to publicly state, and requiring the court to
publicly find, that no one is willing or able to assist the mentally disordered
person in providing for the person’s basic needs for food, clothing, or shelter.’
This was not the case here; [petitioner’s mother] took the stand at trial and
testified as to her willingness to provide assistance to her daughter. No purpose
of section 5350, subdivision (e), would be served by requiring her to also
execute a writing to this effect.” (Conservatorship of Johnson, supra, 235
Cal.App.3d at p. 699, n. 5.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 98, 100
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.4
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.42
(Matthew Bender)
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4008. Third Party Assistance to Minor
A minor is not “gravely disabled” if [he/she/nonbinary pronoun] can
survive safely with the help of third party assistance. Third party
assistance is the aid of family, friends, or others who are responsible,
willing, and able to help provide for the minor’s health, safety, and
development, including food, shelter, and clothing.
You must not consider offers by family, friends, or others unless they
[have testified to/stated specifically in writing] their willingness and
ability to help provide for [name of respondent]’s health, safety, and
development. Well-intended offers of assistance are not sufficient unless
they will ensure the person can survive safely.
[Assistance provided by a correctional facility does not constitute third
party assistance.]
New June 2005
Sources and Authority
• Help of Family and Friends. Welfare and Institutions Code section 5350(e).
• “[A] person is not ‘gravely disabled’ within the meaning of section 5008,
subdivision (h)(1) if he or she is capable of surviving safely in freedom with the
help of willing and responsible family members, friends or third parties.”
(Conservatorship of Davis (1981) 124 Cal.App.3d 313, 321 [177 Cal.Rptr. 369].)
• “Although a minor may not be legally responsible to provide for his basic
personal needs, or may suffer disabilities other than a mental disorder which
preclude him from so providing, the [statutory] definition is nevertheless
applicable. A minor is ‘gravely disabled’ within the meaning of section 5008,
subdivision (h)(1), when the trier of fact, on expert and other testimony, finds
that disregarding other disabilities, if any, the minor, because of the further
disability of a mental disorder, would be unable to provide for his basic personal
needs. Immaturity, either physical or mental when not brought about by a mental
disorder, is not a disability which would render a minor ‘gravely disabled’ within
the meaning of section 5008.” (In re Michael E. (1975) 15 Cal.3d 183, 192, fn.
12 [123 Cal.Rptr. 103, 538 P.2d 231].)
• “As we view the broad purpose of the LPS Act, imposition of a conservatorship
should be made only in situations where it is truly necessary. To accomplish this
purpose evidence of the availability of third party assistance must be
considered.” (Conservatorship of Early (1983) 35 Cal.3d 244, 253 [197 Cal.Rptr.
539, 673 P.2d 209].)
• “The California Supreme Court in Conservatorship of Early . . . concluded
although a person might be gravely disabled if left to his or her own devices, he
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or she may be able to function successfully in freedom with the support and
assistance of family and friends. The court recognized almost everyone depends
to a greater or lesser extent upon others in order to survive in our complex
society.” (Conservatorship of Jones (1989) 208 Cal.App.3d 292, 299 [256
Cal.Rptr. 415].)
• “Corrections custody does not qualify as third party assistance under the LPS
Act as interpreted by case law.” (Conservatorship of Jones, supra, 208
Cal.App.3d at p. 303.)
• “Under section 5350, subdivision (e)(1), a person is not gravely disabled only if
he or she can survive safely with the assistance of a third party. There is
substantial evidence that the assistance offered by [respondent’s mother], while
well-intended, would not meet this requirement.” (Conservatorship of Johnson
(1991) 235 Cal.App.3d 693, 699 [1 Cal.Rptr. 2d 46], original italics, footnote
omitted.)
• “The parties have raised the issue of whether section 5350, subdivision (e)(2),
precluded the trial court from considering [petitioner’s mother’s] testimony on
the issue of third party assistance. This section provides that third parties shall
not be considered willing or able to provide assistance unless they so indicate in
writing. This section has no application in this case. The purpose of section
5350, subdivision (e), ‘is to avoid the necessity for, and the harmful effects of,
requiring family, friends, and others to publicly state, and requiring the court to
publicly find, that no one is willing or able to assist the mentally disordered
person in providing for the person’s basic needs for food, clothing, or shelter.’
This was not the case here; [petitioner’s mother] took the stand at trial and
testified as to her willingness to provide assistance to her daughter. No purpose
of section 5350, subdivision (e), would be served by requiring her to also
execute a writing to this effect.” (Conservatorship of Johnson, supra, 235
Cal.App.3d at p. 699, n. 5.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 90, 97, 100
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.4
28 California Forms of Pleading and Practice, Ch. 329, Juvenile Courts:
Delinquency Proceedings, § 329.73 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, §§ 361A.42,
361A.45 (Matthew Bender)
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4009. Physical Restraint
The fact that respondent has been brought before the court in physical
restraints is not evidence of grave disability. You must not speculate on
the reasons for such restraints.
New June 2005
Directions for Use
When the restraints are concealed from the jury’s view, this instruction should not
be given unless requested by the conservatee since it might invite initial attention to
the restraints and, thus, create prejudice, which would otherwise be avoided. (People
v. Duran (1976) 16 Cal.3d 282, 292 [127 Cal.Rptr. 618, 545 P.2d 1322].)
In Conservatorship of Warrack (1992) 11 Cal.App.4th 641, 647 [14 Cal.Rptr. 2d
99], the court held that a proposed conservatee in a jury trial under the LPS Act
may not be physically restrained unless the trial court follows the procedures
outlined in People v. Duran, supra, 16 Cal.3d at pp. 288–290.
Sources and Authority
• “The court in People v. Duran, held that where physical restraints are visible to
the jury the trial court must give a cautionary instruction advising the jurors such
restraints are not evidence of the defendant’s guilt (disability) and that the jury
should not speculate as to the reasons for such restraints. The court erred in
failing to so instruct in this case.” (Conservatorship of Warrack, supra, 11
Cal.App.4th at p. 648, internal citation omitted.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 100, 104
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.88
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.42
(Matthew Bender)
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4010. Limiting Instruction—Expert Testimony
Revoked May 2018. See People v. Sanchez (2016) 63 Cal.4th 665, 684
[204 Cal.Rptr.3d 102, 374 P.3d 320] and Conservatorship of K.W. (2017)
13 Cal.App.5th 1274, 1281 [221 Cal.Rptr.3d 622].
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4011. History of Disorder Relevant to the Determination of Grave
Disability
You must consider information about the history of [name of
respondent]’s alleged mental disorder if you believe this information has
a direct bearing on whether [he/she/nonbinary pronoun] is presently
gravely disabled as a result of a mental disorder. Such information may
include testimony from persons who have provided, or are providing,
mental health or related support services to [name of respondent], [his/
her/nonbinary pronoun] medical records, including psychiatric records, or
testimony from family members, [name of respondent], or any other
person designated by [name of respondent].
You must not consider any evidence that you believe is irrelevant
because it occurred either too long ago or under circumstances that are
not similar to those involved in this case.
New June 2005
Sources and Authority
• Historical Course of Mental Disorder. Welfare and Institutions Code section
5008.2(a).
Secondary Sources
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.84
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.33
(Matthew Bender)
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4012. Concluding Instruction
To find that [name of respondent] is gravely disabled, all 12 jurors must
agree on the verdict. To find that [name of respondent] is not gravely
disabled, only 9 jurors must agree on the verdict.
As soon as you have agreed on a verdict, the presiding juror must date
and sign the form and notify the [clerk/bailiff].
New June 2005; Revised May 2017
Directions for Use
Read this instruction immediately after CACI No. 5009, Predeliberation
Instructions.
There are many votes that are possible other than a unanimous 12-0 vote for gravely
disabled or a 9-3 or better vote for not gravely disabled. A vote other than one of
these will result in a mistrial and the option to retry the proceeding.
Sources and Authority
• “The due process clause of the California Constitution requires that proof
beyond a reasonable doubt and a unanimous jury verdict be applied to
conservatorship proceedings under the LPS Act.” (Conservatorship of Roulet
(1979) 23 Cal.3d 219, 235 [152 Cal.Rptr. 425, 590 P.2d 1].)
• “The LPS Act is silent as to whether the jury must unanimously agree on the
issue of grave disability. ‘[H]owever, the Act incorporates by reference Probate
Code procedures for conservatorships. The Probate Code provides for factual
determinations by a three-fourths majority . . . . Thus, the Legislature has
provided for less than unanimous jury verdicts in grave disability cases.’ ”
(Conservatorship of Rodney M. (1996) 50 Cal.App.4th 1266, 1269 [58
Cal.Rptr.2d 513].)
• “The Legislature’s determination that a three-fourths majority vote applies in
LPS conservatorship proceedings is eminently sound in the context of finding a
proposed conservatee is not gravely disabled.” (Conservatorship of Rodney M.,
supra, 50 Cal.App.4th at pp. 1271–1272.)
• “Permitting a finding of no grave disability to be based on a three-fourths
majority coincides with Roulet’s goal of minimizing the risk of unjustified and
needless conservatorships. It also avoids unnecessary confinement of the
proposed conservatee while renewal proceedings are completed.”
(Conservatorship of Rodney M., supra, 50 Cal.App.4th at p. 1270.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, § 104
2 California Conservatorship Practice (Cont.Ed.Bar) § 23.89
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32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.42
(Matthew Bender)
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4013. Disqualification From Voting
If you find that [name of respondent], as a result of [a mental disorder/
impairment by chronic alcoholism], is gravely disabled, then you must
also decide whether [he/she/nonbinary pronoun] should also be
disqualified from voting. To disqualify [name of respondent] from voting,
all 12 jurors must find, by clear and convincing evidence, that [he/she/
nonbinary pronoun] cannot communicate, with or without reasonable
accommodations, a desire to participate in the voting process.
New June 2005; Revised June 2016
Directions for Use
This instruction should be given if the petition prays for this relief.
In addition to the required jury finding, one of the following must apply (See Elec.
Code, § 2208(a)):
(1) A conservator for the person or the person and estate is appointed under
Division 4 (commencing with Section 1400) of the Probate Code.
(2) A conservator for the person or the person and estate is appointed under
Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the
Welfare and Institutions Code.
(3) A conservator is appointed for the person under proceedings initiated under
Section 5352.5 of the Welfare and Institutions Code, the person has been
found not competent to stand trial, and the person’s trial or judgment has been
suspended pursuant to Section 1370 of the Penal Code.
(4) A person has pleaded not guilty by reason of insanity, has been found to be
not guilty under Section 1026 of the Penal Code, and is deemed to be gravely
disabled at the time of judgment as defined in paragraph (2) of subdivision (h)
of Section 5008 of the Welfare and Institutions Code.
The court should determine if one of the above requirements has been met.
Sources and Authority
• Disqualification from Voting. Elections Code section 2208.
• Affidavit of Voter Registration. Elections Code section 2150.
Secondary Sources
2 California Conservatorship Practice (Cont.Ed.Bar) § 11.34
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and Mental
Disabilities: Judicial Commitment, Health Services, and Civil Rights, § 361A.42
(Matthew Bender)
4014–4099. Reserved for Future Use
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VF-4000. Conservatorship—Verdict Form
Select one of the following two options:
12 jurors find that [name of respondent] is presently
gravely disabled due to [a mental disorder/impairment
by chronic alcoholism].
9 or more jurors find that [name of respondent] is not
presently gravely disabled due to [a mental
disorder/impairment by chronic alcoholism].
[If you have concluded that [name of respondent] is gravely disabled due
to [a mental disorder/impairment by chronic alcoholism] then answer the
following:
Do all 12 jurors find that [name of respondent] is disqualified from
voting because [he/she/nonbinary pronoun] cannot communicate, with or
without reasonable accommodations, a desire to participate in the voting
process?
Yes No]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New June 2005; Revised December 2010, May 2017
Directions for Use
The question regarding voter disqualification is bracketed. The judge must decide
whether this question is appropriate in a given case. (See CACI No. 4013,
Disqualification From Voting.)
VF-4001–VF-4099. Reserved for Future Use
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BREACH OF FIDUCIARY DUTY
4100. “Fiduciary Duty” Explained
4101. Failure to Use Reasonable Care—Essential Factual Elements
4102. Duty of Undivided Loyalty—Essential Factual Elements
4103. Duty of Confidentiality—Essential Factual Elements
4104. Duties of Escrow Holder
4105. Duties of Stockbroker—Speculative Securities
4106. Breach of Fiduciary Duty by Attorney—Essential Factual Elements
4107. Duty of Disclosure by Real Estate Broker to Client
4108. Failure of Seller’s Real Estate Broker to Conduct Reasonable
Inspection—Essential Factual Elements (Civ. Code, § 2079)
4109. Duty of Disclosure by Seller’s Real Estate Broker to Buyer
4110. Breach of Duty by Real Estate Seller’s Agent—Inaccurate Information in
Multiple Listing Service—Essential Factual Elements (Civ. Code, § 1088)
4111. Constructive Fraud (Civ. Code, § 1573)
4112–4119. Reserved for Future Use
4120. Affirmative Defense—Statute of Limitations
4121–4199. Reserved for Future Use
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4100. “Fiduciary Duty” Explained
[A/An] [agent/stockbroker/real estate agent/real estate broker/corporate
officer/partner/[insert other fiduciary relationship]] owes what is known as
a fiduciary duty to [his/her/nonbinary pronoun/its]
[principal/client/corporation/partner/[insert other fiduciary relationship]]. A
fiduciary duty imposes on [a/an] [agent/stockbroker/real estate agent/real
estate broker/corporate officer/partner/[insert other fiduciary relationship]]
a duty to act with the utmost good faith in the best interests of [his/her/
nonbinary pronoun/its] [principal/client/corporation/ partner/[insert other
fiduciary relationship]].
New June 2006; Revised December 2010, December 2016
Directions for Use
This instruction explains the nature of a fiduciary duty. It may be modified if other
concepts involving fiduciary duty are relevant to the jury’s understanding of the
case. For instructions on damages resulting from misrepresentation by a fiduciary,
see CACI No. 1923, Damages—“Out of Pocket” Rule, and CACI No. 1924,
Damages—“Benefit of the Bargain” Rule.
The elements of a cause of action for breach of fiduciary duty are the existence of a
fiduciary relationship, its breach, and damage proximately caused by that breach.
(Knox v. Dean (2012) 205 Cal.App.4th 417, 432–433 [140 Cal.Rptr.3d 569].) No
fraudulent intent is required. (See Civ. Code, § 1573 (defining “constructive fraud”).)
Sources and Authority
• “A fiduciary relationship is ‘ “ ‘any relation existing between parties to a
transaction wherein one of the parties is in duty bound to act with the utmost
good faith for the benefit of the other party. Such a relation ordinarily arises
where a confidence is reposed by one person in the integrity of another, and in
such a relation the party in whom the confidence is reposed, if he voluntarily
accepts or assumes to accept the confidence, can take no advantage from his acts
relating to the interest of the other party without the latter’s knowledge or
consent. . . .’ ” ’ ” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29 [130
Cal.Rptr.2d 860], internal citations omitted.)
• “Whether a fiduciary duty exists is generally a question of law. Whether the
defendant breached that duty towards the plaintiff is a question of fact.” (Marzec
v. Public Employees’ Retirement System (2015) 236 Cal.App.4th 889, 915 [187
Cal.Rptr.3d 452], internal citation omitted.)
• “ ‘ “[B]efore a person can be charged with a fiduciary obligation, he must either
knowingly undertake to act on behalf and for the benefit of another, or must
enter into a relationship which imposes that undertaking as a matter of law.”
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[Citation.]’ ” (Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1338 [147
Cal.Rptr.3d 772].)
• “[E]xamples of relationships that impose a fiduciary obligation to act on behalf
of and for the benefit of another are ‘a joint venture, a partnership, or an
agency.’ But, ‘[t]hose categories are merely illustrative of fiduciary relationships
in which fiduciary duties are imposed by law.’ ” (Cleveland, supra, 209
Cal.App.4th at p. 1339, internal citation omitted.)
• “The investment adviser/client relationship is one such relationship, giving rise
to a fiduciary duty as a matter of law.” (Hasso v. Hapke (2014) 227 Cal.App.4th
107, 140 [173 Cal.Rptr.3d 356].)
• “There is a ‘strong public interest in assuring that corporate officers, directors,
majority shareholders and others are faithful to their fiduciary obligations to
minority shareholders.’ ” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395
[178 Cal.Rptr.3d 604].)
• “Any persons who subscribe for stock have a right to do so upon the assumption
that the promoters are using their knowledge, skill, and ability for the benefit of
the company. It is, therefore, clear on principle that promoters, under the
circumstances just stated, do occupy a position of trust and confidence, and it
devolves upon them to make full disclosure.” (Cleveland, supra, 209
Cal.App.4th at p. 1339.)
• “[I]t is unclear whether a fiduciary relationship exists between an insurance
broker and an insured.” (Mark Tanner Constr. v. Hub Internat. Ins. Servs. (2014)
224 Cal.App.4th 574, 585 [169 Cal.Rptr.3d 39].)
• “It is a question of fact whether one is either an investment adviser or a party to
a confidential relationship that gives rise to a fiduciary duty under common law.”
(Hasso, supra, 227 Cal.App.4th at p. 140, internal citations omitted.)
• “[A] third party who knowingly assists a trustee in breaching his or her fiduciary
duty may, dependent upon the circumstances, be held liable along with that
trustee for participating in the breach of trust.” (Stueve Bros. Farms, LLC v.
Berger Kahn (2013) 222 Cal.App.4th 303, 325 [166 Cal.Rptr.3d 116].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 63, 64
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 2-C,
Broker’s Relationship And Obligations To Principal And Third Parties, ¶ 2:158 et
seq. (The Rutter Group)
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶ 6:425 et seq. (The Rutter Group)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31[1]
(Matthew Bender)
14 California Forms of Pleading and Practice, Ch. 167, Corporations: Directors and
Management, § 167.53 et seq. (Matthew Bender)
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37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§§ 427.12, 427.23 (Matthew Bender)
5 California Points and Authorities, Ch. 52, Corporations, § 52.112 et seq. (Matthew
Bender)
6 California Legal Forms, Ch. 12C, Limited Liability Companies, § 12C.24[6]
(Matthew Bender)
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4101. Failure to Use Reasonable Care—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by [name of defendant]’s breach of the fiduciary duty to use reasonable
care. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was [name of plaintiff]’s
[agent/stockbroker/real estate agent/real estate broker/corporate
officer/partner/[insert other fiduciary relationship]];
2. That [name of defendant] acted on [name of plaintiff]’s behalf for
purposes of [insert description of transaction, e.g., “purchasing a
residential property”];
3. That [name of defendant] failed to act as a reasonably careful
[agent/stockbroker/real estate agent/real estate broker/corporate
officer/partner/[insert other fiduciary relationship]] would have
acted under the same or similar circumstances;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2006
Directions for Use
The instructions in this series are intended for lawsuits brought by or on behalf of
the principal. They also assume that the plaintiff is bringing a legal cause of action,
not an action in equity. (See Van de Kamp v. Bank of America (1988) 204
Cal.App.3d 819 [251 Cal.Rptr. 530].) This instruction is not intended for cases
involving insurance brokers or agents.
In appropriate cases, element 3 may be tailored to reflect the particular fiduciary
duty at issue.
For a breach of fiduciary duty instruction in cases involving attorney defendants, see
CACI No. 4106, Breach of Fiduciary Duty by Attorney—Essential Factual
Elements.
While the advisory committee has not included “employee” as an option for
identifying the defendant agent in element 1, there may be cases in which certain
employees qualify as “agents,” thereby subjecting them to liability for breach of
fiduciary duty.
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Sources and Authority
• “A fiduciary relationship is ‘ “ ‘any relation existing between parties to a
transaction wherein one of the parties is in duty bound to act with the utmost
good faith for the benefit of the other party. Such a relation ordinarily arises
where a confidence is reposed by one person in the integrity of another, and in
such a relation the party in whom the confidence is reposed, if he voluntarily
accepts or assumes to accept the confidence, can take no advantage from his acts
relating to the interest of the other party without the latter’s knowledge or
consent. . . .’ ” ’ ” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29 [130
Cal.Rptr.2d 860], internal citations omitted.)
• “An act such as breach of fiduciary duty may be both a breach of contract and a
tort.” (Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174,
1178 [27 Cal.Rptr.3d 754], internal citation omitted.)
• “Breach of a real estate agent’s fiduciary duty to his or her client may constitute
negligence or fraud, depending on the circumstances of the case.” (Salahutdin v.
Valley of California, Inc. (1994) 24 Cal.App.4th 555, 563 [29 Cal.Rptr.2d 463].)
• “Breach of fiduciary duty is a tort that by definition may be committed by only a
limited class of persons.” (1-800 Contacts, Inc. v. Steinberg (2003) 107
Cal.App.4th 568, 592 [132 Cal.Rptr.2d 789].)
• “Traditional examples of fiduciary relationships in the commercial context
include trustee/beneficiary, directors and majority shareholders of a corporation,
business partners, joint adventurers, and agent/principal.” (Wolf, supra, 107
Cal.App.4th at p. 30, internal citations omitted.)
• “ ‘The relationship between a broker and principal is fiduciary in nature and
imposes on the broker the duty of acting in the highest good faith toward the
principal.’ ” (Twomey v. Mitchum, Jones & Templeton, Inc. (1968) 262
Cal.App.2d 690, 709 [69 Cal.Rptr. 222], internal citations omitted.)
• “A stockbroker’s fiduciary duty requires more than merely carrying out the stated
objectives of the customer; at least where there is evidence, as there certainly
was here, that the stockbroker’s recommendations were invariably followed, the
stockbroker must ‘determine the customer’s actual financial situation and needs.’
If it would be improper and unsuitable to carry out the speculative objectives
expressed by the customer, there is a further obligation on the part of the
stockbroker ‘to make this known to [the customer], and [to] refrain from acting
except upon [the customer’s] express orders.’ Under such circumstances,
although the stockbroker can advise the customer about the speculative options
available, he or she should not solicit the customer’s purchase of any such
speculative securities that would be beyond the customer’s ‘risk threshold.’ ”
(Duffy v. Cavalier (1989) 215 Cal.App.3d 1517, 1538 [264 Cal.Rptr. 740],
internal citations omitted.)
• “Real estate brokers are subject to two sets of duties: those imposed by
regulatory statutes, and those arising from the general law of agency. . . . ‘The
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existence and extent of the duties of the agent to the principal are determined by
the terms of the agreement between the parties, interpreted in light of the
circumstances under which it is made, except to the extent that fraud, duress,
illegality, or the incapacity of one or both of the parties to the agreement
modifies it or deprives it of legal effect.’ ” (Carleton v. Tortosa (1993) 14
Cal.App.4th 745, 755 [17 Cal. Rptr. 2d 734], internal citations omitted.)
• “In order to plead a cause of action for breach of fiduciary duty against a trustee,
the plaintiff must show the existence of a fiduciary relationship, its breach, and
damage proximately caused by that breach; the absence of any one of these
elements is fatal to the cause of action. The beneficiary of the trust has the initial
burden of proving the existence of a fiduciary duty and the trustee’s failure to
perform it; the burden then shifts to the trustee to justify its actions.” (LaMonte
v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517 [52 Cal.Rptr.2d 861],
internal citations omitted.)
• “Recovery for damages based upon breach of fiduciary duty is controlled by
Civil Code section 3333, the traditional tort recovery. This is actually broader in
some instances than damages which may be recovered for fraud. Also, punitive
damages are appropriate for a breach of fiduciary duty.” (Michelson v. Hamada
(1994) 29 Cal.App.4th 1566, 1582 [36 Cal.Rptr.2d 343], internal citations
omitted.)
• “While breach of fiduciary duty is a question of fact, the existence of legal duty
in the first instance and its scope are questions of law.” (Kirschner Brothers Oil,
Inc. v. Natomas Co. (1986) 185 Cal.App.3d 784, 790 [229 Cal.Rptr. 899],
internal citation omitted.)
• “[I]n actions against fiduciaries, a plaintiff may have the option of pursuing
either legal or equitable remedies.” (Van de Kamp v. Bank of America (1988)
204 Cal.App.3d 819, 863 [251 Cal.Rptr. 530].)
• “A minority shareholder’s action for damages for the breach of fiduciary duties
of the majority shareholder is one in equity, with no right to a jury trial.”
(Nelson v. Anderson (1999) 72 Cal.App.4th 111, 122 [84 Cal.Rptr.2d 753],
internal citations omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 70
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31[2]
(Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent
(Matthew Bender)
Miller & Starr, California Real Estate 4th, § 3:26 (Thomson Reuters)
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4102. Duty of Undivided Loyalty—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by [name of defendant]’s breach of the fiduciary duty of loyalty. [A/An]
[agent/stockbroker/real estate agent/real estate broker/corporate officer/
partner/[insert other fiduciary relationship]] owes [his/her/nonbinary
pronoun/its] [principal/client/corporation/partner/[insert other fiduciary
relationship]] undivided loyalty. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] was [name of plaintiff]’s
[agent/stockbroker/real estate agent/real estate broker/corporate
officer/partner/[insert other fiduciary relationship]];
2. That [name of defendant] [insert one of the following:]
2. [knowingly acted against [name of plaintiff]’s interests in
connection with [insert description of transaction, e.g., “purchasing
a residential property”];]
2. [acted on behalf of a party whose interests were adverse to [name
of plaintiff] in connection with [insert description of transaction,
e.g., “purchasing a residential property”];]
3. That [name of plaintiff] did not give informed consent to [name of
defendant]’s conduct;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2006; Revised June 2010
Directions for Use
The instructions in this series are intended for lawsuits brought by or on behalf of
the principal. They also assume that the plaintiff is bringing a legal cause of action,
not an action in equity. (See Van de Kamp v. Bank of America (1988) 204
Cal.App.3d 819 [251 Cal.Rptr. 530].)
For a breach of fiduciary duty instruction in cases involving attorney defendants, see
CACI No. 4106, Breach of Fiduciary Duty by Attorney—Essential Factual
Elements.
While the advisory committee has not included “employee” as an option for
identifying the defendant agent in element 1, there may be cases in which certain
employees qualify as “agents,” thereby subjecting them to liability for breach of
fiduciary duty.
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If the parties dispute whether the plaintiff gave informed consent (element 3), the
court may wish to add explanatory language or a separate instruction on what
constitutes informed consent. (See, e.g., Rest. 3d Agency, § 8.06(1).)
Sources and Authority
• Restatement Third of Agency, section 8.01, states: “An agent has a fiduciary
duty to act loyally for the principal’s benefit in all matters connected with the
agency relationship.”
• Restatement Third of Agency, section 8.02, states: “An agent has a duty not to
acquire a material benefit from a third party in connection with transactions
conducted or other actions taken on behalf of the principal or otherwise through
the agent’s use of the agent’s position.”
• Restatement Third of Agency, section 8.03, states: “An agent has a duty not to
deal with the principal as or on behalf of an adverse party in a transaction
connected with the agency relationship.”
• Restatement Third of Agency, section 8.04, states: “Throughout the duration of
an agency relationship, an agent has a duty to refrain from competing with the
principal and from taking action on behalf of or otherwise assisting the
principal’s competitors. During that time, an agent may take action, not
otherwise wrongful, to prepare for competition following termination of the
agency relationship.”
• Restatement Third of Agency, section 8.05, states:
An agent has a duty
(1) not to use property of the principal for the agent’s own purposes or those
of a third party; and
(2) not to use or communicate confidential information of the principal for
the agent’s own purposes or those of a third party.
• Restatement Third of Agency, section 8.06, states:
(1) Conduct by an agent that would otherwise constitute a breach of duty as
stated in §§ 8.01, 8.02, 8.03, 8.04, and 8.05 does not constitute a breach
of duty if the principal consents to the conduct, provided that
(a) in obtaining the principal’s consent, the agent
(i) acts in good faith,
(ii) discloses all material facts that the agent knows, has reason
to know, or should know would reasonably affect the
principal’s judgment unless the principal has manifested that
such facts are already known by the principal or that the
principal does not wish to know them, and
(iii) otherwise deals fairly with the principal; and
(b) the principal’s consent concerns either a specific act or transaction,
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or acts or transactions of a specified type that could reasonably be
expected to occur in the ordinary course of the agency relationship.
(2) An agent who acts for more than one principal in a transaction between
or among them has a duty
(a) to deal in good faith with each principal,
(b) to disclose to each principal
(i) the fact that the agent acts for the other principal or
principals, and
(ii) all other facts that the agent knows, has reason to know, or
should know would reasonably affect the principal’s judgment
unless the principal has manifested that such facts are already
known by the principal or that the principal does not wish to
know them, and
(c) otherwise to deal fairly with each principal.
• “Every agent owes his principal the duty of undivided loyalty. During the course
of his agency, he may not undertake or participate in activities adverse to the
interests of his principal. In the absence of an agreement to the contrary, an
agent is free to engage in competition with his principal after termination of his
employment but he may plan and develop his competitive enterprise during the
course of his agency only where the particular activity engaged in is not against
the best interests of his principal.” (Sequoia Vacuum Systems v. Stransky (1964)
229 Cal.App.2d 281, 287 [40 Cal.Rptr. 203].)
• “The determination of the particular factual circumstances and the application of
the ethical standards of fairness and good faith required of a fiduciary in a given
situation are for the trier of facts.” (Sequoia Vacuum Systems, supra, 229
Cal.App.2d at p. 288, internal citation omitted.)
• “[T]he protection of the principal’s interest requires a full disclosure of acts
undertaken in preparation of entering into competition.” (Sequoia Vacuum
Systems, supra, 229 Cal.App.2d at p. 287, internal citation omitted.)
• “It is settled that a director or officer of a corporation may not enter into a
competing enterprise which cripples or injures the business of the corporation of
which he is an officer or director. An officer or director may not seize for
himself, to the detriment of his company, business opportunities in the
company’s line of activities which his company has an interest and prior claim
to obtain. In the event that he does seize such opportunities in violation of his
fiduciary duty, the corporation may claim for itself all benefits so obtained.”
(Xum Speegle, Inc. v. Fields (1963) 216 Cal.App.2d 546, 554 [31 Cal.Rptr. 104],
internal citations omitted.)
• “A fiduciary relationship is ‘ “any relation existing between parties to a
transaction wherein one of the parties is . . . duty bound to act with the utmost
good faith for the benefit of the other party. Such a relation ordinarily arises
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where a confidence is reposed by one person in the integrity of another, and in
such a relation the party in whom the confidence is reposed, if he voluntarily
accepts or assumes to accept the confidence, can take no advantage from his acts
relating to the interest of the other party without the latter’s knowledge or
consent.” ’ ” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29 [130
Cal.Rptr.2d 860].)
• “Inherent in each of these relationships is the duty of undivided loyalty the
fiduciary owes to its beneficiary, imposing on the fiduciary obligations far more
stringent than those required of ordinary contractors. As Justice Cardozo
observed, ‘Many forms of conduct permissible in a workaday world for those
acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is
held to something stricter than the morals of the market place. Not honesty
alone, but the punctilio of an honor the most sensitive is then the standard of
behavior.’ ” (Wolf, supra, 107 Cal.App.4th at p. 30, internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 72–93
35 California Forms of Pleading and Practice, Ch. 401, Partnerships: Actions
Between General Partners and Partnership, § 401.20 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.23 (Matthew Bender)
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4103. Duty of Confidentiality—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by [name of defendant]’s breach of the fiduciary duty of confidentiality.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [name of plaintiff]’s
[agent/stockbroker/real estate agent/real estate broker/corporate
officer/partner/[insert other fiduciary relationship]];
2. That [name of defendant] had information relating to [name of
plaintiff] that [he/she/nonbinary pronoun/it] knew or should have
known was confidential;
3. That [name of defendant] [insert one of the following:]
3. [used [name of plaintiff]’s confidential information for [his/her/
nonbinary pronoun/its] own benefit;]
3. [communicated [name of plaintiff]’s confidential information to
third parties;]
4. That [name of plaintiff] did not give informed consent to [name of
defendant]’s conduct;
5. That the confidential information was not a matter of general
knowledge;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2006
Directions for Use
The instructions in this series are intended for lawsuits brought by or on behalf of
the principal. They also assume that the plaintiff is bringing a legal cause of action,
not an action in equity. (See Van de Kamp v. Bank of America (1988) 204
Cal.App.3d 819 [251 Cal.Rptr. 530].)
For a breach of fiduciary duty instruction in cases involving attorney defendants, see
CACI No. 4106, Breach of Fiduciary Duty by Attorney—Essential Factual
Elements.
While the advisory committee has not included “employee” as an option for
identifying the defendant agent in element 1, there may be cases in which certain
employees qualify as “agents,” thereby subjecting them to liability for breach of
fiduciary duty.
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A cause of action relating to the misuse of confidential information may also be
brought, in certain circumstances, against non-fiduciaries. This instruction may be
modified to apply to such cases.
Sources and Authority
• Restatement Second of Agency, section 395, states: “Unless otherwise agreed, an
agent is subject to a duty to the principal not to use or to communicate
information confidentially given him by the principal or acquired by him during
the course of or on account of his agency or in violation of his duties as agent,
in competition with or to the injury of the principal, on his own account or on
behalf of another, although such information does not relate to the transaction in
which he is then employed, unless the information is a matter of general
knowledge.”
• “ ‘The law of confidential relationships governs duties of trust that one is not
obligated to assume. Once a person commits himself to a confidential
relationship, the law requires him to fulfill the duties attendant to the
relationship. Confidential relations protect the trust that is implicit in
relationships between employers and employees, between masters and servants,
and between principals and agents, rather than the information that may pass
between these parties.’ ” (Balboa Ins. Co. v. Trans Global Equities (1990) 218
Cal.App.3d 1327, 1350–1351 [267 Cal.Rptr. 787], original italics, internal
citation omitted.)
Secondary Sources
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.12[3] (Matthew Bender)
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4104. Duties of Escrow Holder
Escrow holders have a fiduciary duty to the parties in escrow:
1. To comply strictly with the parties’ written instructions; [and]
2. To exercise reasonable skill and diligence in carrying out the
escrow instructions; [and]
3. [To obtain reliable evidence that a real estate broker was
regularly licensed before paying [his/her/nonbinary pronoun/its]
commission;] [and]
4. [Insert other applicable duty].
New June 2006
Directions for Use
Element 3 is intended only for cases involving real estate escrow.
Sources and Authority
• “The duty of an escrow holder to obtain evidence that a real estate broker was
regularly licensed before delivering compensation arises from Business and
Professions Code section 10138. Respondent assumed this duty only by entering
the contract to execute the escrow for appellant and the seller. Accordingly, the
duty arose out of and is not outside the contract.” (Kangarlou v. Progressive
Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1179 [27 Cal.Rptr.3d 754].)
• “The duty to communicate any facts learned about the broker’s licenses arises
only because of the duty to obtain such evidence. Since the duty to obtain such
evidence is not outside the contract, the duty to communicate those findings also
is not outside the contract.” (Kangarlou, supra, 128 Cal.App.4th at p. 1179.)
• “An escrow holder has a fiduciary duty to the escrow parties to comply strictly
with the parties’ instructions. The holder only assumes this duty by agreeing to
execute the escrow. The obligation to exercise reasonable skill and diligence in
carrying out the escrow instructions, and to comply strictly with the depositor’s
written instructions are within the duties undertaken in the contract.”
(Kangarlou, supra, 128 Cal.App.4th at p. 1179, internal citation omitted.)
Secondary Sources
21 California Forms of Pleading and Practice, Ch. 253, Escrows, § 253.17[4]
(Matthew Bender)
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4105. Duties of Stockbroker—Speculative Securities
Stockbrokers who trade in speculative securities and advise clients have
a fiduciary duty to those clients:
1. To make sure that the client understands the investment risks in
light of the client’s financial situation;
2. To inform the client that speculative investments are not suitable
if the stockbroker believes that the client is unable to bear the
financial risks involved; and
3. Not to solicit the client’s purchase of speculative securities that
the stockbroker considers to be beyond the client’s risk threshold.
If these duties are met and the client still insists on purchasing
speculative securities, the stockbroker may advise the client about
various speculative securities and purchase speculative securities that the
client selects.
New June 2006; Revised May 2020
Directions for Use
This instruction should be read after CACI No. 4101, Failure to Use Reasonable
Care—Essential Factual Elements.
Sources and Authority
• “[T]he stockbroker has a fiduciary duty (1) to ascertain that the investor
understands the investment risks in the light of his or her actual financial
situation; (2) to inform the customer that no speculative investments are suitable
if the customer persists in wanting to engage in such speculative transactions
without the stockbroker’s being persuaded that the customer is able to bear the
financial risks involved; and (3) to refrain completely from soliciting the
customer’s purchase of any speculative securities which the stockbroker
considers to be beyond the customer’s risk threshold. As long as these duties are
met, if the customer nevertheless insists on purchasing speculative securities, the
stockbroker is not barred from advising the customer about various speculative
securities and purchasing for the customer those securities which the customer
selects.” (Duffy v. Cavalier (1989) 215 Cal.App.3d 1517, 1532 [264 Cal.Rptr.
740], internal citations and footnote omitted.)
• “[T]he relationship between any stockbroker and his or her customer is fiduciary
in nature, imposing on the former the duty to act in the highest good faith
toward the customer.” (Duffy, supra, 215 Cal.App.3d at p. 1534, internal
citations omitted.)
• “A stockbroker’s fiduciary duty requires more than merely carrying out the stated
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objectives of the customer; at least where there is evidence, as there certainly
was here, that the stockbroker’s recommendations were invariably followed, the
stockbroker must ‘determine the customer’s actual financial situation and needs.’
If it would be improper and unsuitable to carry out the speculative objectives
expressed by the customer, there is a further obligation on the part of the
stockbroker ‘to make this known to [the customer], and [to] refrain from acting
except upon [the customer’s] express orders.’ Under such circumstances,
although the stockbroker can advise the customer about the speculative options
available, he or she should not solicit the customer’s purchase of any such
speculative securities that would be beyond the customer’s ‘risk threshold.’ ”
(Duffy, supra, 215 Cal.App.3d at p. 1538, internal citations omitted.)
Secondary Sources
45 California Forms of Pleading and Practice, Ch. 515, Securities and Franchise
Regulation, § 515.15[3] (Matthew Bender)
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4106. Breach of Fiduciary Duty by Attorney—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
because [name of defendant] breached an attorney’s duty [describe duty,
e.g., “not to represent clients with conflicting interests”]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] breached the duty of an attorney
[describe duty];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised April 2004; Renumbered from CACI No. 605
December 2007; Revised May 2019, May 2020
Directions for Use
The existence of a fiduciary relationship is a question of law. Whether an attorney
has breached that fiduciary duty is a question of fact. (David Welch Co. v. Erskine &
Tulley (1988) 203 Cal.App.3d 884, 890 [250 Cal.Rptr. 339], disapproved on other
grounds in Lee v. Hanley (2015) 61 Cal.4th 1225, 1239 [191 Cal.Rptr.3d 536, 354
P.3d 334].)
Give CACI No. 430, Causation: Substantial Factor, with this instruction.
The causation standard for an attorney’s intentional breach of fiduciary duty differs
from that for a negligent breach. If the plaintiff alleges an attorney’s intentional
breach of duty, do not include the optional last sentence of CACI No. 430,
Causation: Substantial Factor, on “but for” causation. The “but for” causation
standard does not apply to an intentional breach of fiduciary duty. If the plaintiff
alleges an attorney’s negligent breach of duty, the “but for” (“would have happened
anyway”) causation standard applies. (Knutson v. Foster (2018) 25 Cal.App.5th
1075, 1093–1094 [236 Cal.Rptr.3d 473]; see Viner v. Sweet (2003) 30 Cal.4th 1232
[135 Cal.Rptr.2d 629, 70 P.3d 1046].) If the plaintiff alleges a negligent breach of
duty, give the optional last sentence of CACI No. 430: “Conduct is not a substantial
factor in causing harm if the same harm would have occurred without that conduct.”
If the plaintiff alleges both negligent breach and intentional or fraudulent breach, the
jury must be instructed on both causation standards and it should be made clear
which causation standard applies to which claim.
If the harm allegedly caused by the defendant’s conduct involves the outcome of a
legal claim, the jury should be instructed with CACI No. 601, Negligent Handling
of Legal Matter, for the “but for” standard. (See Gutierrez v. Girardi (2011) 194
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Cal.App.4th 925, 928, 933–937 [125 Cal.Rptr.3d 210] [discussing circumstances
when a client need not show that they objectively would have obtained a better
result in the underlying case in the absence of the attorney’s breach (the trial-within-
a-trial method)].)
Sources and Authority
• “ ‘The relation between attorney and client is a fiduciary relation of the very
highest character.’ ” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6
Cal.3d 176, 189 [98 Cal.Rptr. 837, 491 P.2d 421].)
• “ ‘The breach of fiduciary duty can be based upon either negligence or fraud
depending on the circumstances. It has been referred to as a species of tort
distinct from causes of action for professional negligence [citation] and from
fraud [citation].’ ‘The elements of a cause of action for breach of fiduciary duty
are the existence of a fiduciary relationship, breach of fiduciary duty, and
damages.’ ” (Knutson, supra, 25 Cal.App.5th at pp. 1093–1094, internal citation
omitted.)
• “Substantial factor causation is the correct causation standard for an intentional
breach of fiduciary duty.” (Knutson, supra, 25 Cal.App.5th at p. 1094.)
• “The trial court applied the legal malpractice standard of causation to [plaintiff]’s
intentional breach of fiduciary duty cause of action. The court cited The Rutter
Group’s treatise on professional responsibility to equate causation for legal
malpractice with causation for all breaches of fiduciary duty: ‘ “The rules
concerning causation, damages, and defenses that apply to lawyer negligence
actions . . . also govern actions for breach of fiduciary duty.” ’ This statement of
the law is correct, however, only as to claims of breach of fiduciary duty arising
from negligent conduct.” (Knutson, supra, 25 Cal.App.5th at p. 1094, internal
citations omitted.)
• “Expert testimony is not required, but is admissible to establish the duty and
breach elements of a cause of action for breach of fiduciary duty where the
attorney conduct is a matter beyond common knowledge.” (Stanley, supra, 35
Cal.App.4th at p. 1087, internal citations omitted.)
• “The scope of an attorney’s fiduciary duty may be determined as a matter of law
based on the Rules of Professional Conduct which, ‘together with statutes and
general principles relating to other fiduciary relationships, all help define the
duty component of the fiduciary duty which an attorney owes to his [or her]
client.’ ” (Stanley, supra, 35 Cal.App.4th at p. 1087.)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, § 90
Vapnek et al., California Practice Guide: Professional Responsibility ¶ 6:425 (The
Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.02 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
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§ 76.150 (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§§ 24A.27[3][d], 24A.29[3][j] (Matthew Bender)
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4107. Duty of Disclosure by Real Estate Broker to Client
As a fiduciary, a real estate broker must disclose to the broker’s client
all material information that the broker knows or could reasonably
obtain regarding the property or relating to the transaction.
The facts that a broker must learn, and the advice and counsel required
of the broker, depend on the facts of the transaction, the knowledge and
experience of the client, the questions asked by the client, the nature of
the property, and the terms of sale. Brokers must place themselves in the
position of their clients and consider the type of information required for
the client to make a well-informed decision.
[A real estate broker cannot accept information received from another
person, such as the seller, as being true, and transmit it to the broker’s
client without either verifying the information or disclosing to the client
that the information has not been verified.]
New April 2008; Revised December 2012, June 2013, May 2020
Directions for Use
This instruction may be read after CACI No. 4101, Failure to Use Reasonable
Care—Essential Factual Elements, if a real estate broker’s duty of disclosure to the
broker’s own client is at issue. Give the second paragraph if relevant to the facts of
the case. For an instruction based on a broker’s breach of duty to the buyer with
regard to the property inspection required by Civil Code section 2079, see CACI
No. 4108, Failure of Seller’s Real Estate Broker to Conduct Reasonable
Inspection—Essential Factual Elements.
While a broker’s fiduciary duty to the client arises from the relationship and not
from contract (William L. Lyon & Associates, Inc. v. Superior Court (2012) 204
Cal.App.4th 1294, 1312 [139 Cal.Rptr.3d 670]), the scope of the duty may be
limited by contract. (See Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 750−751
[17 Cal.Rptr.2d 734] [broker-client agreement may relieve broker of any duty to
provide tax advice].) Any contractual limitations may be added to the second
paragraph regarding what facts a broker must learn.
Sources and Authority
• “Under the common law, . . . a broker’s fiduciary duty to his client requires the
highest good faith and undivided service and loyalty. ‘The broker as a fiduciary
has a duty to learn the material facts that may affect the principal’s decision. He
is hired for his professional knowledge and skill; he is expected to perform the
necessary research and investigation in order to know those important matters
that will affect the principal’s decision, and he has a duty to counsel and advise
the principal regarding the propriety and ramifications of the decision. The
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agent’s duty to disclose material information to the principal includes the duty to
disclose reasonably obtainable material information. [¶] . . . [¶] The facts that a
broker must learn, and the advice and counsel required of the broker, depend on
the facts of each transaction, the knowledge and the experience of the principal,
the questions asked by the principal, and the nature of the property and the terms
of sale. The broker must place himself in the position of the principal and ask
himself the type of information required for the principal to make a well-
informed decision. This obligation requires investigation of facts not known to
the agent and disclosure of all material facts that might reasonably be
discovered.’ ” (Field v. Century 21 Klowden-Forness Realty (1998) 63
Cal.App.4th 18, 25–26 [73 Cal.Rptr.2d 784], internal citations omitted.)
• “A fiduciary must tell its principal of all information it possesses that is material
to the principal’s interests. A fiduciary’s failure to share material information
with the principal is constructive fraud, a term of art obviating actual fraudulent
intent. (Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 762 [67
Cal.Rptr.3d 797], internal citations omitted.)
• “ ‘[W]here the seller knows of facts materially affecting the value or desirability
of the property which are known or accessible only to him and also knows that
such facts are not known to, or within the reach of the diligent attention and
observation of the buyer, the seller is under a duty to disclose them to the
buyer. . . .’ When the seller’s real estate agent or broker is also aware of such
facts, ‘he [or she] is under the same duty of disclosure.’ ” (Holmes v. Summer
(2010) 188 Cal.App.4th 1510, 1518–1519 [116 Cal.Rptr.3d 419], internal
citations omitted.)
• “ ‘A broker who is merely an innocent conduit of the seller’s fraud may be
innocent of actual fraud [citations], but in this situation the broker may be liable
for negligence on a constructive fraud theory if he or she passes on the
misstatements as true without personally investigating them.’ ” (Salahutdin v.
Valley of Cal. (1994) 24 Cal.App.4th 555, 562 [29 Cal.Rptr.2d 463].)
• “[T]he broker has a fiduciary duty to investigate the material facts of the
transaction, and he cannot accept information received from others as being true,
and transmit it to the principal, without either verifying the information or
disclosing to the principal that the information has not been verified. Because of
the fiduciary obligations of the broker, the principal has a right to rely on the
statements of the broker, and if the information is transmitted by the broker
without verification and without qualification, the broker is liable to the principal
for negligent misrepresentation.” (Salahutdin, supra, 24 Cal.App.4th at pp.
562–563.)
• “[T]he fiduciary duty owed by brokers to their own clients is substantially more
extensive than the nonfiduciary duty codified in [Civil Code] section 2079 [duty
to visually inspect and disclose material facts].” (Michel, supra, 156 Cal.App.4th
at p. 763, original italics.)
• “The statutory duties owed by sellers’ brokers under section 2079 are separate
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and independent of the duties owed by brokers to their own clients who are
buyers.” (William L. Lyon & Associates, Inc. v. Superior Court (2012) 204
Cal.App.4th 1294, 1305 [139 Cal.Rptr.3d 670].)
• “[W]e are not persuaded by Defendants’ reliance on Civil Code section 2079.
Although we agree that that statute sets forth some of the duties of a real estate
broker, it is not the only source of a broker’s duties. ‘Real estate brokers are
subject to two sets of duties: those imposed by regulatory statutes, and those
arising from the general law of agency.’ Here, the [plaintiffs]’ claims are not
contingent on an expansion of the statutorily defined duties of a real estate
broker. Instead, their claim is more elementary. If a real estate broker has
information that will adversely affect the value of a property he or she is selling,
does that broker have a duty to share that information with his or her client? The
clear and uncontroversial answer to that question is yes.” (Ryan v. Real Estate of
the Pacific, Inc. (2019) 32 Cal.App.5th 637, 646 [244 Cal.Rptr.3d 129], internal
citation omitted.)
• “[Fiduciary] duties require full and complete disclosure of all material facts
respecting the property or relating to the transaction in question.” (Padgett v.
Phariss (1997) 54 Cal.App.4th 1270, 1286 [63 Cal.Rptr.2d 373].)
• “Real estate brokers are subject to two sets of duties: those imposed by
regulatory statutes, and those arising from the general law of agency.” (Coldwell
Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th
158, 164 [11 Cal.Rptr.3d 564].)
• “[R]eal estate brokers representing buyers of residential property are licensed
professionals who owe fiduciary duties to their own clients. As such, this
fiduciary duty is not a creature of contract and, therefore, did not arise under the
buyer-broker agreement.” (William L. Lyon & Associates, Inc., supra, 204
Cal.App.4th at p. 1312, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 914
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
2-C, Broker’s Relationship And Obligations To Principal And Third Parties, ¶ 2:164
(The Rutter Group)
California Real Property Sales Transactions (Cont.Ed.Bar 4th ed.) §§ 2.132–2.136
3 California Real Estate Law and Practice, Ch. 61, Employment and Authority of
Brokers, § 61.05, Ch. 63, Duties and Liabilities of Brokers, §§ 63.20–63.22
(Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
Bender)
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4108. Failure of Seller’s Real Estate Broker to Conduct
Reasonable Inspection—Essential Factual Elements (Civ. Code,
§ 2079)
[Name of defendant], as the real estate [broker/salesperson] for [name of
seller], must conduct a reasonably competent and diligent visual
inspection of the property offered for sale. Before the sale, [name of
defendant] must then disclose to [name of plaintiff], the buyer, all facts
that materially affect the value or desirability of the property that the
investigation revealed or should have revealed.
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by [name of defendant]’s breach of this duty. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] was [name of seller]’s real estate [broker/
salesperson];
2. That [name of defendant] acted on [name of seller]’s behalf for
purposes of [insert description of transaction, e.g., “selling a
residential property”];
3. That [name of defendant] failed to conduct a reasonably competent
and diligent visual inspectionof the property;
4. That before the sale, [name of defendant] failed to disclose to
[name of plaintiff] all facts that materially affected the value or
desirability of the property that such an inspection would have
revealed;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2013; Revised May 2020
Directions for Use
Give this instruction if the seller’s real estate broker or salesperson did not conduct
a visual inspection of the property and make disclosures to the buyer as required by
Civil Code section 2079(a). For an instruction on the fiduciary duty of a real estate
broker to the broker’s own client, see CACI No. 4107, Duty of Disclosure of Real
Estate Broker to Client.
The duty created by Civil Code section 2079 is not a fiduciary duty; it is strictly a
limited duty created by statute. (See Michel v. Moore & Associates, Inc. (2007) 156
Cal.App.4th 756, 762 [67 Cal.Rptr.3d 797].)
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Sources and Authority
• Statutory Duties of Seller’s Real Estate Broker. Civil Code section 2079(a).
• Scope of Required Inspection. Civil Code section 2079.3.
• “Section 2079 requires sellers’ real estate brokers, and their cooperating brokers,
to conduct a ‘reasonably competent and diligent visual inspection of the
property,’ and to disclose all material facts such an investigation would reveal to
a prospective buyer.” (Field v. Century 21 Klowden-Forness Realty (1998) 63
Cal.App.4th 18, 23 [73 Cal.Rptr.2d 784], footnote omitted.)
• “Section 2079 was enacted to codify and focus the holding in Easton v.
Strassburger, supra, 152 Cal. App. 3d 90. In Easton, the court recognized that
case law imposed a duty on sellers’ brokers to disclose material facts actually
known to the broker. Easton expanded the holdings of former decisions to
include a requirement that sellers’ brokers must diligently inspect residential
property and disclose material facts they obtain from that investigation. Further,
the case held sellers’ brokers are chargeable with knowledge they should have
known had they conducted an adequate investigation.” (Field, supra, 63
Cal.App.4th at p. 24, original italics.)
• “Section 2079 statutorily limits the duty of inspection recognized in Easton to
one requiring only a visual inspection. Further, the statutory scheme expressly
states a selling broker has no obligation to purchasers to investigate public
records or permits pertaining to title or use of the property.” (Field, supra, 63
Cal.App.4th at p. 24, original italics; see Civ. Code, § 2079.3.)
• “The statutory duties owed by sellers’ brokers under section 2079 are separate
and independent of the duties owed by brokers to their own clients who are
buyers.” (William L. Lyon & Associates, Inc. v. Superior Court (2012) 204
Cal.App.4th 1294, 1305 [139 Cal.Rptr.3d 670].)
• “In accordance with the clear and unambiguous language of section 2079, the
inspection and disclosure duties of residential real estate brokers and their agents
apply exclusively to prospective buyers, and not to other persons who are not
parties to the real estate transaction. Only a transferee, that is, the ultimate
purchaser, can recover from a broker or agent for breach of these duties.”
(Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117
Cal.App.4th 158, 165 [11 Cal.Rptr.3d 564].)
• “[W]e are not persuaded by Defendants’ reliance on Civil Code section 2079.
Although we agree that that statute sets forth some of the duties of a real estate
broker, it is not the only source of a broker’s duties. ‘Real estate brokers are
subject to two sets of duties: those imposed by regulatory statutes, and those
arising from the general law of agency.’ ” (Ryan v. Real Estate of the Pacific,
Inc. (2019) 32 Cal.App.5th 637, 646 [244 Cal.Rptr.3d 129].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 174
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Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 2-C,
Broker’s Relationship And Obligations To Principal And Third Parties, ¶ 2:173 et
seq. (The Rutter Group)
3 California Real Estate Law and Practice, Ch. 63, Duties and Liabilities of Brokers,
§ 63.20 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 et seq.
(Matthew Bender)
2A California Points and Authorities, Ch. 31, Brokers and Salespersons, § 31.142 et
seq. (Matthew Bender)
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.20
(Matthew Bender)
Miller & Starr, California Real Estate 4th, § 1:41 (Thomson Reuters)
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4109. Duty of Disclosure by Seller’s Real Estate Broker to Buyer
A real estate broker for the seller of property must disclose to the buyer
all facts known to the broker regarding the property or relating to the
transaction that materially affect the value or desirability of the
property. A broker must disclose these facts if the broker knows or
should know that the buyer is not aware of them and cannot reasonably
be expected to discover them through diligent attention and observation.
The broker does not, however, have to disclose facts that the buyer
already knows or could have learned with diligent attention and
observation.
New December 2013; Revised May 2020
Directions for Use
This instruction should be read after CACI No. 400, Negligence—Essential Factual
Elements, if a seller’s real estate broker’s breach of duty of disclosure to the buyer
is at issue. A broker’s failure to disclose known material facts to the buyer may
constitute a breach of duty for purposes of a claim for negligence. Causation and
damages must still be proved. This instruction may also be used with instructions in
the Fraud and Deceit series (CACI No. 1900 et seq.) for a cause of action for
misrepresentation or concealment. (See Holmes v. Summer (2010) 188 Cal.App.4th
1510, 1528 [116 Cal.Rptr.3d 419].)
For an instruction on the fiduciary duty of a real estate broker to the broker’s own
client, see CACI No. 4107, Duty of Disclosure of Real Estate Broker to Client. For
an instruction on the duty of the seller’s real estate broker under Civil Code section
2079 to conduct a visual inspection of the property and disclose to the buyer all
facts materially affecting the value or desirability of the property that an
investigation would reveal, see CACI No. 4108, Failure of Seller’s Real Estate
Broker to Conduct Reasonable Inspection—Essential Factual Elements.
Sources and Authority
• “ ‘[W]here the seller knows of facts materially affecting the value or desirability
of the property which are known or accessible only to him and also knows that
such facts are not known to, or within the reach of the diligent attention and
observation of the buyer, the seller is under a duty to disclose them to the buyer.
[Citations.]’ When the seller’s real estate agent or broker is also aware of such
facts, ‘he [or she] is under the same duty of disclosure.’ A real estate agent or
broker may be liable ‘for mere nondisclosure since his [or her] conduct in the
transaction amounts to a representation of the nonexistence of the facts which he
has failed to disclose [citation].’ ” (Holmes, supra, 188 Cal.App.4th at pp.
1518–1519, original italics, internal citations omitted.)
• “Even in the absence of a fiduciary duty to the buyer, listing agents are required
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to disclose to prospective purchasers all facts materially affecting the value or
desirability of a property that a reasonable visual inspection would reveal. And
regardless of whether a listing agent also represents the buyer, it is required to
disclose to the buyer all known facts materially affecting the value or desirability
of a property that are not known to or reasonably discoverable by the buyer.”
(Horiike v. Coldwell Banker Residential Brokerage Co. (2016) 1 Cal.5th 1024,
1040 [210 Cal.Rptr.3d 1, 383 P.3d 1094].)
• “The real estate agent or broker representing the seller is a party to the business
transaction. In most instances he has a personal interest in it and derives a profit
from it. Where such agent or broker possesses, along with the seller, the
requisite knowledge . . . , whether he acquires it from, or independently of, his
principal, he is under the same duty of disclosure. He is a party connected with
the fraud and if no disclosure is made at all to the buyer by the other parties to
the transaction, such agent or broker becomes jointly and severally liable with
the seller for the full amount of the damages.” (Lingsch v. Savage (1963) 213
Cal.App.2d 729, 736 [29 Cal.Rptr. 201], footnote omitted.)
• “A breach of the duty to disclose gives rise to a cause of action for rescission or
damages.” (Alfaro v. Community Housing Improvement System & Planning
Assn., Inc. (2009) 171 Cal.App.4th 1356, 1383 [89 Cal.Rptr.3d 659].)
• “The ‘elements of a simple negligence action [are] whether [the defendant] owed
a legal duty to [the plaintiff] to use due care, whether this legal duty was
breached, and finally whether the breach was a proximate cause of [the
plaintiff’s] injury. [Citations.]’ We have already stated that the buyers alleged
facts sufficient to impose a legal duty on the brokers. Furthermore, they have
alleged facts sufficient to show a breach of that duty. Finally, the buyers alleged
that the breach caused them harm. In short, the buyers stated facts sufficient to
constitute a cause of action on a negligence theory. Our cursory analysis of this
one theory is enough to demonstrate that the trial court erred in sustaining the
brokers’ demurrer without leave to amend, but is not meant to preclude the
buyers’ pursuit of their other [fraud] theories.” (Holmes, supra, 188 Cal.App.4th
at p. 1528, internal citation omitted.)
• “Despite the absence of privity of contract, a real estate agent is clearly under a
duty to exercise reasonable care to protect those persons whom the agent is
attempting to induce into entering a real estate transaction for the purpose of
earning a commission.” (Holmes, supra, 188 Cal.App.4th at p. 1519.)
• “[A] seller’s agent has no affirmative duty to disclose latent defects unless the
agent ‘also knows that such facts are not known to, or within the reach of the
diligent attention and observation of the buyer.’ ” (Peake v. Underwood (2014)
227 Cal.App.4th 428, 445 [173 Cal.Rptr.3d 624], original italics.)
• “[W]hen a real estate agent or broker is aware that the amount of existing
monetary liens and encumbrances exceeds the sales price of a residential
property, so as to require either the cooperation of the lender in a short sale or
the ability of the seller to put a substantial amount of cash into the escrow in
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order to obtain the release of the monetary liens and encumbrances affecting
title, the agent or broker has a duty to disclose this state of affairs to the buyer,
so that the buyer can inquire further and evaluate whether to risk entering into a
transaction with a substantial risk of failure.” (Holmes, supra, 188 Cal.App.4th at
pp. 1522–1523.)
• “[W]e do not convert the seller’s fiduciary into the buyer’s fiduciary. The seller’s
agent under a listing agreement owes the seller ‘[a] fiduciary duty of utmost
care, integrity, honesty, and loyalty . . . .’ Although the seller’s agent does not
generally owe a fiduciary duty to the buyer, he or she nonetheless owes the
buyer the affirmative duties of care, honesty, good faith, fair dealing and
disclosure, as reflected in Civil Code section 2079.16, as well as such other
nonfiduciary duties as are otherwise imposed by law.” (Holmes, supra, 188
Cal.App.4th at p. 1528, internal citation omitted.)
• “Real estate brokers are subject to two sets of duties: those imposed by
regulatory statutes, and those arising from the general law of agency.” (Coldwell
Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th
158, 164 [11 Cal.Rptr.3d 564].)
• “In enacting section 2079 [see CACI No. 4108], the Legislature did not intend to
preclude a real estate agent’s liability for fraud. However, because a seller’s
agent has no fiduciary relationship with a buyer, the courts have strictly limited
the scope of an agent’s disclosure duties under a fraudulent concealment theory.”
(Peake, supra, 227 Cal.App.4th at p. 444, internal citation omitted.)
• “The primary difference between the disclosure obligations of an exclusive
representative of a seller and a dual agent representing the seller and the buyer is
the dual agent’s duty to learn and disclose facts material to the property’s price
or desirability, including those facts that might reasonably be discovered by the
buyer.” (Horiike, supra, 1 Cal.5th at pp. 1040–1041.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 914
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 487, 489
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
2-C, Broker’s Relationship And Obligations To Principal And Third Parties,
¶¶ 2:164, 2:172 (The Rutter Group)
California Real Property Sales Transactions (Cont.Ed.Bar 4th ed.) §§ 2.132–2.136
3 California Real Estate Law and Practice, Ch. 63, Duties and Liabilities of Brokers,
§§ 63.20–63.22 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
Bender)
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4110. Breach of Duty by Real Estate Seller’s Agent—Inaccurate
Information in Multiple Listing Service—Essential Factual
Elements (Civ. Code, § 1088)
[Name of defendant], as the real estate [broker/salesperson/appraiser] for
[name of seller], listed the property for sale in a multiple listing service
(MLS). [Name of plaintiff] claims that [he/she/nonbinary pronoun] was
harmed because information in the MLS was false or inaccurate. [Name
of defendant] is responsible for this harm if [name of plaintiff] proves all
of the following:
1. That [name of defendant] listed the property for sale in a MLS;
2. That information posted on the MLS was false or inaccurate;
3. That [name of defendant] knew, or reasonably should have known,
that the information was false or inaccurate;
4. That [name of plaintiff] reasonably relied on the false or
inaccurate information in the MLS;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2015
Directions for Use
A real estate agent or appraiser has a duty to a buyer of real estate to post only
accurate information on a multiple listing service (MLS). The buyer has a right of
action against an agent or appraiser for harm caused by inaccurate information on
an MLS if the agent or broker knew or should have known that the information was
false or inaccurate. (Civ. Code, § 1088; see Furla v. Jon Douglas Co. (1998) 65
Cal.App.4th 1069, 1077 [76 Cal.Rptr.2d 911].)
The statute provides a remedy for anyone “injured by” the false or inaccurate
information. (Civ. Code, § 1088.) As a statutory remedy for a species of
misrepresentation, the plaintiff must show causation in the form of both actual and
justifiable reliance on the inaccurate information on the MLS (element 4). (See
Furla, supra, 65 Cal.App.4th at p. 1078; CACI No. 1907, Reliance, CACI No.
1908, Reasonable Reliance.)
Sources and Authority
• False or Inaccurate Information in Multiple Listing Service. Civil Code section
1088.
• A real estate agent also has a statutory liability for negligence: ‘[i]f an agent
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. . . places a listing or other information in the multiple listing service, that
agent . . . shall be responsible for the truth of all representations . . . of which
that agent . . . had knowledge or reasonably should have had knowledge to
anyone injured by their falseness or inaccuracy.’ ” (Furla, supra, 65 Cal.App.4th
at p. 1077.)
• “A broker’s duties with respect to any listing or other information posted to an
MLS are specified in section 1088. Section 1088 states in relevant part that the
broker ‘shall be responsible for the truth of all representations and statements
made by the agent [in an MLS] . . . of which that agent . . . had knowledge or
reasonably should have had knowledge,’ and provides a statutory negligence
claim for ‘anyone injured’ by the ‘falseness or inaccuracy’ of such
representations and statements.” (Saffıe v. Schmeling (2014) 224 Cal.App.4th
563, 568 [168 Cal.Rptr.3d 766].)
• “There is nothing in section 1088, or any other source of law, imposing
responsibility on a seller’s broker to ensure that true statements in an MLS are
not misconstrued, or to make certain that the buyer and the buyer’s broker
perform the appropriate due diligence to evaluate the significance of such true
statements for the buyer’s particular purposes.” (Saffıe, supra, 224 Cal.App.4th
at p. 570.)
• “Defendants contend there is no triable issue of fact and as a matter of law
plaintiff did not reasonably rely upon the misrepresentations, and plaintiff
unreasonably failed to exercise due care for his own interest as buyer. They
contend plaintiff was repeatedly warned by language in the Multiple Listing
Service and the sales agreement that statements concerning square footage were
approximations only, and that plaintiff could obtain accurate determinations of
square footage by a professional pursuant to the buyer’s right to inspect the
property. But whether a plaintiff reasonably relied on a defendant’s
misrepresentations or failed to exercise reasonable diligence is also ordinarily a
question of fact for the trier of fact.” (Furla, supra, 65 Cal.App.4th at p. 1078.)
• “To be sure, an omission of information may sometimes render an otherwise true
statement false or inaccurate, in the meaning of section 1088.” (Saffıe, supra,
224 Cal.App.4th at p. 570.)
• “Absent anything untrue or inaccurate about the statement seller’s broker
actually made in the MLS, and absent damage to buyer from such falsity or
inaccuracy, seller’s broker is not liable under section 1088.” (Saffıe, supra, 224
Cal.App.4th at pp. 571–572.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 487, 489
3 California Real Estate Law and Practice, Ch. 61, Employment and Authority of
Brokers, § 61.76 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
Bender)
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2A California Points and Authorities, Ch. 31, Brokers and Salespersons, § 31.147
(Matthew Bender)
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4111. Constructive Fraud (Civ. Code, § 1573)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
because [name of defendant] misled [him/her/nonbinary pronoun] by failing
to provide [name of plaintiff] with complete and accurate information. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [name of plaintiff]’s
[agent/stockbroker/real estate agent/real estate broker/corporate
officer/partner/[insert other fiduciary relationship]];
2. That [name of defendant] acted on [name of plaintiff]’s behalf for
purposes of [insert description of transaction, e.g., purchasing a
residential property];
3. That [name of defendant] knew, or should have known, that
[specify information at issue];
4. That [name of defendant] misled [name of plaintiff] by [failing to
disclose this information/providing [name of plaintiff] with
information that was inaccurate or incomplete];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New November 2017; Revised May 2020
Directions for Use
Give this instruction for a claim of constructive fraud under Civil Code section
1573. Under the statute, constructive fraud is a particular kind of breach of fiduciary
duty in which the defendant has misled the plaintiff to the plaintiff’s prejudice or
detriment. Constructive fraud differs from actual fraud (see CACI Nos. 1900−1903
on different claims involving actual fraud) in that no fraudulent intent is required.
(Civ. Code, § 1573(1).) Thus, if one who is under a fiduciary duty to provide
complete and accurate information to the plaintiff fails to do so and the plaintiff is
misled to the plaintiff’s prejudice, there is a claim for constructive fraud despite the
lack of any intent to mislead or deceive.
In element 4, choose the first option if it was the defendant’s failure to disclose
information that misled the plaintiff. Choose the second option if the defendant
provided information to the plaintiff, but the plaintiff was misled because the
information was inaccurate or incomplete.
In a fiduciary relationship, there is a rebuttable presumption of reasonable reliance.
The defendant bears the burden of rebutting the presumption by proving by
substantial evidence that the plaintiff could not have reasonably relied on the
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misleading information or omission. (Edmunds v. Valley Circle Estates (1993) 16
Cal.App.4th 1290, 1301–1302 [20 Cal.Rptr.2d 701].)
There are cases that set forth the elements of constructive fraud as “(1) a fiduciary
or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent
to deceive, and (4) reliance and resulting injury (causation).” (See, e.g., Younan v.
Equifax Inc. (1980) 111 Cal.App.3d 498, 516 fn. 14 [169 Cal.Rptr. 478]; see also
Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131
[167 Cal.Rptr.3d 832].) However, these elements conflict with the statute in at least
two ways. First, the statute clearly states that no fraudulent intent (or intent to
deceive) is required. Second, the statute is not limited to nondisclosure; it extends to
information that is disclosed, but misleading.
For discussion of the statute of limitations for constructive fraud, see CACI No.
4120, Affırmative Defense—Statute of Limitations.
Sources and Authority
• Constructive Fraud. Civil Code section 1573.
• “A fiduciary must tell its principal of all information it possesses that is material
to the principal’s interests. A fiduciary’s failure to share material information
with the principal is constructive fraud, a term of art obviating actual fraudulent
intent.” (Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 762
[67 Cal.Rptr.3d 797], internal citations omitted.)
• “In its generic sense, constructive fraud comprises all acts, omissions and
concealments involving a breach of legal or equitable duty, trust, or confidence,
and resulting in damages to another. [Citations.] Constructive fraud exists in
cases in which conduct, although not actually fraudulent, ought to be so
treated—that is, in which such conduct is a constructive or quasi fraud, having
all the actual consequences and all the legal effects of actual fraud.”
(Prakashpalan, supra, 223 Cal.App.4th at p. 1131.)
• “The failure of the fiduciary to disclose a material fact to his principal which
might affect the fiduciary’s motives or the principal’s decision, which is known
(or should be known) to the fiduciary, may constitute constructive fraud. Also, a
careless misstatement may constitute constructive fraud even though there is no
fraudulent intent.” (Assilzadeh v. Cal. Fed. Bank (2000) 82 Cal.App.4th 399, 415
[98 Cal.Rptr.2d 176].)
• “[A] representation in the context of a trust or fiduciary relationship creates a
rebuttable presumption of reasonable reliance subject to being overcome by
substantial evidence to the contrary.” (Edmunds, supra, 16 Cal.App.4th at p.
1302.)
• “This rebuttable presumption implements the long recognized public policy of
imposing fiduciary duties upon partners in their relationship to one another.
Indeed, this policy is lodged in the statutory and case law of this state. It is more
than the simple shifting of the burden of proof to facilitate the determination of
a particular action. Consequently, [defendant] had the burden of proving by
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substantial evidence that [plaintiff] did not rely on the alleged false statement.”
(Edmunds, supra, 16 Cal.App.4th at p. 1302.)
• “Confidential and fiduciary relations are in law, synonymous and may be said to
exist whenever trust and confidence is reposed by one person in another.”
(Barrett v. Bank of Am. (1986) 183 Cal.App.3d 1362, 1369 [229 Cal.Rptr. 16].)
Secondary Sources
5 Witkin, California Procedure (5th ed. 2008) Pleading § 717
1 Witkin, Summary of California Law (11th ed. 2017) Contracts § 295
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Businesss Torts,
§ 40.01 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 215, Duress, Fraud, Menace,
Undue Influence, and Mistake, § 215.130 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.101
et seq. (Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Fraud, Menace, Undue
Influence, and Mistake, § 92.44 et seq. (Matthew Bender)
27 California Legal Forms—Transaction Guide, Ch. 77, Discharge of Obligations,
§ 77.125 (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking or
Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.19
4112–4119. Reserved for Future Use
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4120. Affirmative Defense—Statute of Limitations
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [name of plaintiff]’s claimed harm occurred
before [insert date four years before complaint was filed] unless [name of
plaintiff] proves that before [insert date four years before complaint was
filed], [he/she/nonbinary pronoun/it] did not discover, and did not know of
facts that would have caused a reasonable person to suspect, [name of
defendant]’s wrongful act or omission.
New April 2007; Renumbered from CACI No. 4106 December 2007; Revised
December 2012
Directions for Use
Read this instruction only for a cause of action for breach of fiduciary duty. For a
statute-of-limitations defense to a cause of action for personal injury or wrongful
death due to wrongful or negligent conduct, see CACI No. 454, Affırmative
Defense—Statute of Limitations, and CACI No. 455, Statute of Limitations—Delayed
Discovery.
This instruction assumes that the four-year “catch-all” statute of limitations of Code
of Civil Procedure section 343 applies to claims for breach of fiduciary duty. (See
Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1230 [282 Cal.Rptr.
43].) There is, however, language in several cases supporting the proposition that if
the breach can be characterized as constructive fraud, the three-year limitation
period of Code of Civil Procedure section 338(d) applies. (See Austin v. Medicis
(2018) 21 Cal.App.5th 577, 587–588 [230 Cal.Rptr.3d 528]; William L. Lyon &
Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1312 [139
Cal.Rptr.3d 670].) If the court determines that the claim is actually for constructive
fraud, a date three years before the complaint was filed may be used instead of a
four-year date. It is not clear, however, when a breach of fiduciary duty might
constitute constructive fraud for purposes of the applicable statute of limitations.
(Compare Thomson v. Canyon (2011) 198 Cal.App.4th 594, 607 [129 Cal.Rptr.3d
525] [suggesting that breach of fiduciary duty founded on concealment of facts
would be subject to three-year statute] with Stalberg, supra, 230 Cal.App.3d at p.
1230 [applying four-year statute to breach of fiduciary duty based on concealment of
facts].)
Do not use this instruction in an action against an attorney. For a statute-of-
limitations defense to a cause of action, other than actual fraud, against an attorney
acting in the capacity of an attorney, see CACI No. 610, Affırmative
Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit, and CACI
No. 611, Affırmative Defense—Statute of Limitations—Attorney Malpractice—Four-
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Year Limit. One cannot avoid a shorter limitation period for attorney malpractice
(see Code Civ. Proc., § 340.6) by pleading the facts as a breach of fiduciary duty or
constructive fraud. (See Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 67−68
[72 Cal.Rptr.2d 359]; see also Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 322 [166 Cal.Rptr.3d 116] [constructive fraud].)
Sources and Authority
• Four-Year Statute of Limitations. Code of Civil Procedure section 343.
• “The statute of limitations for breach of fiduciary duty is four years. (§ 343.)”
(Stalberg, supra, 230 Cal.App.3d at p. 1230, internal citation omitted.)
• “ ‘[W]here the gravamen of the complaint is that defendant’s acts constituted
actual or constructive fraud, the applicable statute of limitations is the [Code of
Civil Procedure section 338, subdivision (d) three-year] limitations period,’
governing fraud even though the cause of action is designated by the plaintiff as
a claim for breach of fiduciary duty.” (Thomson, supra, 198 Cal.App.4th at p.
607.)
• “Defendants argue on appeal that the gravamen of plaintiff’s complaint is that
defendants’ acts constituted actual or constructive fraud, and thus should be
governed by the fraud statute of limitations. We disagree. Plaintiff’s claim is not
founded upon the concealment of facts but upon defendants’ alleged failure to
draft documents necessary to the real estate transaction in which they
represented plaintiff. The allegation is an allegation of breach of fiduciary duty,
not fraud.” (Thomson, supra, 198 Cal.App.4th at p. 607.)
• “To be sure, section 340.6, subdivision (a), exempts claims of ‘actual fraud’ from
its limitations period—but the exemption does not extend to claims of
constructive fraud.” (Austin, supra, 21 Cal.App.5th at p. 587.)
• “Breach of fiduciary duty not amounting to fraud or constructive fraud is subject
to the four-year ‘catch-all statute’ of Code of Civil Procedure section 343 . . . .
Fraud is subject to the three-year statute of limitations under Code of Civil
Procedure section 338. . . . [¶][¶] However, a breach of a fiduciary duty usually
constitutes constructive fraud.” (William L. Lyon & Associates, Inc., supra, 204
Cal.App.4th at pp. 1312, 1313.)
• “The statute of limitations for breach of fiduciary duty is three years or four
years, depending on whether the breach is fraudulent or nonfraudulent.”
(American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th
1451, 1479 [171 Cal.Rptr.3d 548].)
• “A breach of fiduciary duty claim is based on concealment of facts, and the
statute begins to run when plaintiffs discovered, or in the exercise of reasonable
diligence could have discovered, that facts had been concealed.” (Stalberg,
supra, 230 Cal.App.3d at p. 1230, internal citation omitted.)
• “We also are not persuaded by [defendant]’s contention breach of fiduciary duty
can only be characterized as constructive fraud (which does not include
fraudulent intent as an element). This simply is not true: ‘A misrepresentation
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that constitutes a breach of a fiduciary or confidential a [sic] relationship may,
depending on whether an intent to deceive is present, constitute either actual or
constructive fraud. However, the issue is usually discussed in terms of whether
the misrepresentation constitutes constructive fraud, because actual fraud can
exist independently of a fiduciary or confidential relationship, while the existence
of such a relationship is usually crucial to a finding of constructive fraud.’ ”
(Worthington v. Davi (2012) 208 Cal.App.4th 263, 283 [145 Cal.Rptr.3d 389].)
• “ ‘Where a fiduciary obligation is present, the courts have recognized a
postponement of the accrual of the cause of action until the beneficiary has
knowledge or notice of the act constituting a breach of fidelity. [Citations.] The
existence of a trust relationship limits the duty of inquiry. “Thus, when a
potential plaintiff is in a fiduciary relationship with another individual, that
plaintiff’s burden of discovery is reduced and he is entitled to rely on the
statements and advice provided by the fiduciary.” ’ ” (WA Southwest 2, LLC v.
First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 157 [192 Cal.Rptr.3d
423].)
• “Delayed accrual due to the fiduciary relationship does not extend beyond the
bounds of the discovery rule, which operates to protect the plaintiff who
‘ “despite diligent investigation . . . is blamelessly ignorant of the cause of his
injuries” ’ and should not be barred from asserting a cause of action for wrongful
conduct ‘ “before he could reasonably be expected to discover its existence.” ’ ”
(Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 334 [226 Cal.Rptr.3d
267].)
• “The distinction between the rules excusing a late discovery of fraud and those
allowing late discovery in cases in the confidential relationship category is that
in the latter situation, the duty to investigate may arise later because the plaintiff
is entitled to rely upon the assumption that his fiduciary is acting on his behalf.
However, once a plaintiff becomes aware of facts which would make a
reasonably prudent person suspicious, the duty to investigate arises and the
plaintiff may then be charged with knowledge of the facts which would have
been discovered by such an investigation.” (Hobbs v. Bateman Eichler, Hill
Richards, Inc. (1985) 164 Cal.App.3d 174, 202 [210 Cal.Rptr. 387], original
italics, internal citations omitted.)
• “ ‘[R]esolution of the statute of limitations issue is normally a question of fact
. . . .’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487 [59
Cal.Rptr.2d 20, 926 P.2d 1114].)
• “[T]he statute of limitations for aiding and abetting a breach of fiduciary duty is
the same as the statute of limitations for breach of fiduciary duty.” (American
Master Lease LLC, supra, 225 Cal.App.4th at p. 1479].)
• “ ‘Constructive fraud is a unique species of fraud applicable only to a fiduciary
or confidential relationship.’ [Citation.] [¶] ‘[A]s a general principle constructive
fraud comprises any act, omission or concealment involving a breach of legal or
equitable duty, trust or confidence which results in damage to another even
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though the conduct is not otherwise fraudulent. Most acts by an agent in breach
of his fiduciary duties constitute constructive fraud. The failure of the fiduciary
to disclose a material fact to his principal which might affect the fiduciary’s
motives or the principal’s decision, which is known (or should be known) to the
fiduciary, may constitute constructive fraud. . . .’ ” (Mark Tanner Constr. v. Hub
Internat. Ins. Servs. (2014) 224 Cal.App.4th 574, 588 [169 Cal.Rptr.3d 39].)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Actions, §§ 677–679
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶ 6:425.4 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§ 76.170 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.19[4] (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.29 (Matthew Bender)
4121–4199. Reserved for Future Use
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UNIFORM VOIDABLE TRANSACTIONS ACT
4200. Actual Intent to Hinder, Delay, or Defraud a Creditor—Essential Factual
Elements (Civ. Code, § 3439.04(a)(1))
4201. Factors to Consider in Determining Actual Intent to Hinder, Delay, or
Defraud (Civ. Code, § 3439.04(b))
4202. Constructive Fraudulent Transfer—No Reasonably Equivalent Value
Received—Essential Factual Elements (Civ. Code, § 3439.04(a)(2))
4203. Constructive Fraudulent Transfer—Insolvency—Essential Factual Elements
(Civ. Code, § 3439.05)
4204. “Transfer” Explained
4205. “Insolvency” Explained
4206. Presumption of Insolvency
4207. Affirmative Defense—Good Faith (Civ. Code, § 3439.08(a), (f)(1))
4208. Affirmative Defense—Statute of Limitations—Actual and Constructive Fraud
(Civ. Code, § 3439.09(a), (b))
4209–4299. Reserved for Future Use
VF-4200. Actual Intent to Hinder, Delay, or Defraud Creditor—Affirmative
Defense—Good Faith
VF-4201. Constructive Fraudulent Transfer—No Reasonably Equivalent Value
Received
VF-4202. Constructive Fraudulent Transfer—Insolvency
VF-4203–VF-4299. Reserved for Future Use
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4200. Actual Intent to Hinder, Delay, or Defraud a
Creditor—Essential Factual Elements (Civ. Code, § 3439.04(a)(1))
[Name of plaintiff] claims [he/she/nonbinary pronoun/it] was harmed
because [name of debtor] [transferred property/incurred an obligation] to
[name of defendant] in order to avoid paying a debt to [name of plaintiff].
[This is called “actual fraud.”] To establish this claim against [name of
defendant], [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] has a right to payment from [name of
debtor] for [insert amount of claim];
2. That [name of debtor] [transferred property/incurred an
obligation] to [name of defendant];
3. That [name of debtor] [transferred the property/incurred the
obligation] with the intent to hinder, delay, or defraud one or
more of [his/her/nonbinary pronoun/its] creditors;
4. That [name of plaintiff] was harmed; and
5. That [name of debtor]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
To prove intent to hinder, delay, or defraud creditors, it is not necessary
to show that [name of debtor] had a desire to harm [his/her/nonbinary
pronoun/its] creditors. [Name of plaintiff] need only show that [name of
debtor] intended to remove or conceal assets to make it more difficult for
[his/her/nonbinary pronoun/its] creditors to collect payment.
[It does not matter whether [name of plaintiff]’s right to payment arose
before or after [name of debtor] [transferred property/incurred an
obligation].]
New June 2006; Revised June 2013, June 2016
Directions for Use
Under the Uniform Voidable Transactions Act (formerly the Uniform Fraudulent
Transfer Act), a transfer made or obligation incurred by a debtor is voidable as to a
creditor, whether the creditor’s claim arose before or after the transfer was made or
the obligation was incurred, if the debtor made the transfer or incurred the
obligation with actual intent to hinder, delay, or defraud a creditor. (Civ. Code,
§ 3439.04(a)(1).)
This instruction assumes the defendant is a transferee of the original debtor. Read
the bracketed second sentence if the plaintiff is asserting claims for both actual and
constructive fraud. Read the last bracketed sentence if the plaintiff’s alleged claim
arose after the defendant’s property was transferred or the obligation was incurred.
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Note that in element 3, only the debtor-transferor’s intent is required. (See Civ.
Code, § 3439.04(a)(1).) The intent of the transferee is irrelevant. However, a
transferee who receives the property both in good faith and for a reasonably
equivalent value has an affirmative defense. (See Civ. Code, § 3439.08(a); CACI
No. 4207, Affırmative Defense—Good Faith.)
If the case concerns an incurred obligation, users may wish to insert a brief
description of the obligation in this instruction, e.g., “a lien on the property.”
Courts have held that there is a right to a jury trial whenever the remedy sought is
monetary relief, including even the return of a “determinate sum of money.”
(Wisden v. Superior Court (2004) 124 Cal.App.4th 750, 757 [21 Cal.Rptr.3d 523].)
If the only remedy sought is the return of a particular nonmonetary asset, the action
is an equitable action. However, even if a specific nonmonetary asset is involved, a
conspiracy claim or an action against any party other than the transferee who
possesses the asset (e.g., “the person for whose benefit the transfer was made”) (Civ.
Code, § 3439.08(b)(1)(A)) necessarily would seek monetary relief and give rise to a
right to a jury trial.
Note that there may be a split of authority regarding the appropriate standard of
proof of intent. The Sixth District Court of Appeal has stated: “Actual intent to
defraud must be shown by clear and convincing evidence. (Hansford v. Lassar
(1975) 53 Cal.App.3d 364, 377 [125 Cal.Rptr. 804].)” (Reddy v. Gonzalez (1992) 8
Cal.App.4th 118, 123 [10 Cal.Rptr.2d 58].) Note that the case relied on by the
Hansford court (Aggregates Assoc., Inc. v. Packwood (1962) 58 Cal.2d 580 [25
Cal.Rptr. 545, 375 P.2d 425]) was disapproved by the Supreme Court in Liodas v.
Sahadi (1977) 19 Cal.3d 278, 291–292 [137 Cal.Rptr. 635, 562 P.2d 316]. The
Fourth District Court of Appeal, Division Two, disagreed with Reddy: “In
determining whether transfers occurred with fraudulent intent, we apply the
preponderance of the evidence test, even though we recognize that some courts
believe that the test requires clear and convincing evidence.” (Gagan v. Gouyd
(1999) 73 Cal.App.4th 835, 839 [86 Cal.Rptr.2d 733], internal citations omitted,
disapproved on other grounds in Mejia v. Reed (2003) 31 Cal.4th 657, 669, fn. 2 [3
Cal.Rptr.3d 390, 74 P.3d 166].)
Sources and Authority
• Uniform Voidable Transactions Act. Civil Code section 3439 et seq.
• “Claim” Defined for UVTA. Civil Code section 3439.01(b).
• Creditor Remedies Under UVTA. Civil Code section 3439.07.
• “The UFTA permits defrauded creditors to reach property in the hands of a
transferee.” (Mejia, supra, 31 Cal.4th at p. 663.)
• “The UVTA, formerly known as the Uniform Fraudulent Transfer Act, ‘permits
defrauded creditors to reach property in the hands of a transferee.’ ‘A fraudulent
conveyance is a transfer by the debtor of property to a third person undertaken
with the intent to prevent a creditor from reaching that interest to satisfy its
claim.’ . . . The purpose of the voidable transactions statute is ‘ “to prevent
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debtors from placing property which legitimately should be available for the
satisfaction of demands of creditors beyond their reach . . . .” ’ ” (Lo v. Lee
(2018) 24 Cal.App.5th 1065, 1071 [234 Cal.Rptr.3d 824], internal citations
omitted.)
• “Under the UFTA, ‘a transfer of assets made by a debtor is fraudulent as to a
creditor, whether the creditor’s claim arose before or after the transfer, if the
debtor made the transfer (1) with an actual intent to hinder, delay or defraud any
creditor, or (2) without receiving reasonably equivalent value in return, and
either (a) was engaged in or about to engage in a business or transaction for
which the debtor’s assets were unreasonably small, or (b) intended to, or
reasonably believed, or reasonably should have believed, that he or she would
incur debts beyond his or her ability to pay as they became due.’ ” (Hasso v.
Hapke (2014) 227 Cal.App.4th 107, 121–122 [173 Cal.Rptr.3d 356], internal
citations omitted.)
• “[A] conveyance will not be considered fraudulent if the debtor merely transfers
property which is otherwise exempt from liability for debts. That is, because the
theory of the law is that it is fraudulent for a judgment debtor to divest himself
of assets against which the creditor could execute, if execution by the creditor
would be barred while the property is in the possession of the debtor, then the
debtor’s conveyance of that exempt property to a third person is not fraudulent.”
(Yaesu Electronics Corp. v. Tamura (1994) 28 Cal.App.4th 8, 13 [33 Cal.Rptr.2d
283].)
• “A transfer is not voidable against a person ‘who took in good faith and for a
reasonably equivalent value or against any subsequent transferee.’ ” (Filip,
supra, 129 Cal.App.4th at p. 830, internal citations omitted.)
• “ ‘[T]he UFTA is not the exclusive remedy by which fraudulent conveyances and
transfers may be attacked’; they ‘may also be attacked by, as it were, a common
law action.’ ” (Wisden, supra, 124 Cal.App.4th at p. 758, internal citation
omitted.)
• “Case law has established the remedies specified in the UVTA are cumulative
and not the exclusive remedy for fraudulent conveyances. ‘They may also be
attached by, as it were, a common law action.’ By its terms the UVTA was
intended to supplement, not replace, common law principles relating to fraud.”
(Berger v. Varum (2019) 35 Cal.App.5th 1013, 1019 [248 Cal.Rptr.3d 51].)
• “[E]ven if the Legislature intended that all fraudulent conveyance claims be
brought under the UFTA, the Legislature could not thereby dispense with a right
to jury trial that existed at common law when the California Constitution was
adopted.” (Wisden, supra, 124 Cal.App.4th at p. 758, internal citation omitted.)
• “Whether a conveyance was made with fraudulent intent is a question of fact,
and proof often consists of inferences from the circumstances surrounding the
transfer.” (Filip, supra, 129 Cal.App.4th at p. 834, internal citations omitted.)
• “In order to constitute intent to defraud, it is not necessary that the transferor act
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maliciously with the desire of causing harm to one or more creditors.” (Economy
Refining & Service Co. v. Royal Nat’l Bank (1971) 20 Cal.App.3d 434, 441 [97
Cal.Rptr. 706].)
• “There is no minimum number of factors that must be present before the scales
tip in favor of finding of actual intent to defraud. This list of factors is meant to
provide guidance to the trial court, not compel a finding one way or the other.”
(Filip, supra, 129 Cal.App.4th at p. 834.)
• “ ‘A well-established principle of the law of fraudulent transfers is, “A transfer
in fraud of creditors may be attacked only by one who is injured thereby. Mere
intent to delay or defraud is not sufficient; injury to the creditor must be shown
affirmatively. In other words, prejudice to the plaintiff is essential.” ’ ” (Berger,
supra, 35 Cal.App.5th at p. 1020.)
• “It cannot be said that a creditor has been injured unless the transfer puts beyond
[her] reach property [she] otherwise would be able to subject to the payment of
[her] debt.” (Mehrtash v. Mehrtash (2001) 93 Cal.App.4th 75, 80 [112
Cal.Rptr.2d 802], internal citations omitted.)
• “[G]ranting [plaintiff judgment creditor] an additional judgment against
[defendant judgment debtor] under the UFTA for . . . ‘the amount transferred
here to avoid paying part of his underlying judgment, would in effect allow
[him] to recover more than the underlying judgment, which the [UFTA] does not
allow.’ (Italics added.) We thus conclude that because [plaintiff] obtained a
judgment in the prior action for the damages [defendant] caused him, the
principle against double recovery for the same harm bars him from obtaining a
second judgment against her under the UFTA for a portion of those same
damages.” (Renda v. Nevarez (2014) 223 Cal.App.4th 1231, 1238 [167
Cal.Rptr.3d 874], original italics.)
• “Certain cases, while not awarding consequential damages, have recognized the
availability of such damages.” (Berger, supra, 35 Cal.App.5th at p. 1021.)
Secondary Sources
8 Witkin, California Procedure (5th ed. 2008) Enforcement of Judgment, § 495 et
seq.
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prelawsuit Considerations, ¶ 3:291 et seq. (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 5(III)-B, Elements of Claim, ¶ 5:528 (The Rutter Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§ 270.40 (Matthew Bender)
1 Goldsmith et al., Matthew Bender Practice Guide: California Debt Collection and
Enforcement of Judgments, Ch. 4, Fraudulent Transfers, 4.05
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4201. Factors to Consider in Determining Actual Intent to Hinder,
Delay, or Defraud (Civ. Code, § 3439.04(b))
In determining whether [name of debtor] intended to hinder, delay, or
defraud any creditors by [transferring property/incurring an obligation]
to [name of defendant], you may consider, among other factors, the
following:
[(a) Whether the [transfer/obligation] was to [a/an] [insert relevant
description of insider, e.g., “relative,” “business partner,” etc.];]
[(b) Whether [name of debtor] retained possession or control of the
property after it was transferred;]
[(c) Whether the [transfer/obligation] was disclosed or concealed;]
[(d) Whether before the [transfer was made/obligation was incurred]
[name of debtor] had been sued or threatened with suit;]
[(e) Whether the transfer was of substantially all of [name of debtor]’s
assets;]
[(f) Whether [name of debtor] fled;]
[(g) Whether [name of debtor] removed or concealed assets;]
[(h) Whether the value received by [name of debtor] was not
reasonably equivalent to the value of the [asset
transferred/amount of the obligation incurred];]
[(i) Whether [name of debtor] was insolvent or became insolvent
shortly after the [transfer was made/obligation was incurred];]
[(j) Whether the transfer occurred shortly before or shortly after a
substantial debt was incurred;]
[(k) Whether [name of debtor] transferred the essential assets of the
business to a lienholder who transferred the assets to an insider
of [name of defendant];] [and]
[(l) [insert other appropriate factor].]
Evidence of one or more factors does not automatically require a finding
that [name of defendant] acted with the intent to hinder, delay, or defraud
creditors. The presence of one or more of these factors is evidence that
may suggest the intent to delay, hinder, or defraud.
New June 2006; Revised June 2016
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Directions for Use
Some or all of the stated factors may not be necessary in every case. Other factors
may be added as appropriate depending on the facts of the case.
Sources and Authority
• Determination of Actual Intent. Civil Code section 3439.04(b).
• “Over the years, courts have considered a number of factors, the ‘badges of
fraud’ described in a Legislative Committee comment to section 3439.04, in
determining actual intent. Effective January 1, 2005, those factors are now
codified as section 3439.04, subdivision (b) and include considerations such as
whether the transfer was made to an insider, whether the transferee retained
possession or control after the property was transferred, whether the transfer was
disclosed, whether the debtor had been sued or threatened with suit before the
transfer was made, whether the value received by the debtor was reasonably
equivalent to the value of the transferred asset, and similar concerns. According
to section 3439.04, subdivision (c), this amendment ‘does not constitute a change
in, but is declaratory of, existing law.’ ” (Filip v. Bucurenciu (2005) 129
Cal.App.4th 825, 834 [28 Cal.Rptr.3d 884], internal citations omitted.)
• “[The factors in Civil Code section 3439.04(b)] do not create a mathematical
formula to establish actual intent. There is no minimum number of factors that
must be present before the scales tip in favor of finding of actual intent to
defraud. This list of factors is meant to provide guidance to the trial court, not
compel a finding one way or the other.” (Filip, supra, 129 Cal.App.4th at p.
834.)
• “Even the existence of several ‘badges of fraud’ may be insufficient to raise a
triable issue of material fact.” (Annod Corp. v. Hamilton & Samuels (2002) 100
Cal.App.4th 1286, 1299 [123 Cal.Rptr.2d 924], internal citation omitted.)
• “Whether a conveyance was made with fraudulent intent is a question of fact,
and proof often consists of inferences from the circumstances surrounding the
transfer.” (Filip, supra, 129 Cal.App.4th at p. 834, internal citation omitted.)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prelawsuit Considerations, ¶ 3:291 et seq. (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 5(III)-B, Elements of Claim, ¶ 5:528 (The Rutter Group)
9 California Forms of Pleading and Practice, Ch. 94, Bankruptcy, § 94.55[4][b]
(Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§ 270.40 (Matthew Bender)
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4202. Constructive Fraudulent Transfer—No Reasonably
Equivalent Value Received—Essential Factual Elements (Civ.
Code, § 3439.04(a)(2))
[Name of plaintiff] claims [he/she/nonbinary pronoun/it] was harmed
because [name of debtor] [transferred property/incurred an obligation] to
[name of defendant] and, as a result, was unable to pay [name of plaintiff]
money that was owed. [This is called “constructive fraud.”] To establish
this claim against [name of defendant], [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] has a right to payment from [name of
debtor] for [insert amount of claim];
2. That [name of debtor] [transferred property/incurred an
obligation] to [name of defendant];
3. That [name of debtor] did not receive a reasonably equivalent
value in exchange for the [transfer/obligation];
4. [That [name of debtor] was in business or about to start a business
or enter a transaction when [his/her/nonbinary pronoun/its]
remaining assets were unreasonably small for the business or
transaction;] [or]
4. [That [name of debtor] intended to incur debts beyond [his/her/
nonbinary pronoun/its] ability to pay as they became due;] [or]
4. [That [name of debtor] believed or reasonably should have
believed that [he/she/nonbinary pronoun/it] would incur debts
beyond [his/her/nonbinary pronoun/its] ability to pay as they
became due;]
5. That [name of plaintiff] was harmed; and
6. That [name of debtor]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
If you decide that [name of plaintiff] has proved all of the above, [he/she/
nonbinary pronoun/it] does not have to prove that [name of debtor]
intended to defraud any creditors.
[It does not matter whether [name of plaintiff]’s right to payment arose
before or after [name of debtor] [transferred property/incurred an
obligation].]
New June 2006; Revised June 2016
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Directions for Use
Under the Uniform Voidable Transactions Act (formerly the Uniform Fraudulent
Transfer Act), a transfer made or obligation incurred by a debtor is voidable as to a
creditor, whether the creditor’s claim arose before or after the transfer was made or
the obligation was incurred, if the debtor made the transfer or incurred the
obligation without receiving a reasonably equivalent value in exchange for the
transfer or obligation, and the debtor either: (1) was engaged or was about to engage
in a business or a transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction; or (2) intended to
incur, or believed or reasonably should have believed that the debtor would incur,
debts beyond the debtor’s ability to pay as they became due. (Civ. Code,
§ 3439.04(a)(2).)
This instruction assumes the defendant is a transferee of the original debtor. Read
the bracketed second sentence if the plaintiff is asserting claims for both actual and
constructive fraud. Read the last bracketed sentence if the plaintiff’s alleged claim
arose after the defendant’s property was transferred or the obligation was incurred.
Courts have held that there is a right to a jury trial whenever the remedy sought is
monetary relief, including even the return of a “determinate sum of money.”
(Wisden v. Superior Court (2004) 124 Cal.App.4th 750, 757 [21 Cal.Rptr.3d 523].)
If the only remedy sought is the return of a particular nonmonetary asset, the action
is an equitable action. However, even if a specific nonmonetary asset is involved, a
conspiracy claim or an action against any party other than the transferee who
possesses the asset (e.g., “the person for whose benefit the transfer was made”) (Civ.
Code, § 3439.08(b)(1)(A)) necessarily would seek monetary relief and give rise to a
right to a jury trial.
Sources and Authority
• Transfer Without Reasonably Equivalent Value in Exchange. Civil Code section
3439.04(a)(2).
• When Value Is Given. Civil Code section 3439.03.
• “There are two forms of constructive fraud under the UFTA. Civil Code section
3439.04 . . . provides that a transfer is fraudulent if the debtor did not receive
reasonably equivalent consideration and either ‘(1) Was engaged or about to
engage in a business or a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the business or transaction; or (2)
Intended to incur, or believed or reasonably should have believed that he or she
would incur, debts beyond his or her ability to pay as they became due.’ Civil
Code section 3439.05 provides that a transfer is fraudulent as to an existing
creditor if the debtor does not receive reasonably equivalent value and ‘was
insolvent at that time or . . . became insolvent as a result of the transfer
. . . .’ ” (Mejia v. Reed (2003) 31 Cal.4th 657, 669–670 [3 Cal.Rptr.3d 390, 74
P.3d 166].)
• “A well-established principle of the law of fraudulent transfers is, ‘A transfer in
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fraud of creditors may be attacked only by one who is injured thereby. Mere
intent to delay or defraud is not sufficient; injury to the creditor must be shown
affirmatively. In other words, prejudice to the plaintiff is essential. It cannot be
said that a creditor has been injured unless the transfer puts beyond [her] reach
property [she] otherwise would be able to subject to the payment of [her]
debt.’ ” (Mehrtash v. Mehrtash (2001) 93 Cal.App.4th 75, 80 [112 Cal.Rptr.2d
802], internal citations omitted.)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prelawsuit Considerations, ¶ 3:291 et seq. (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch. 5(III)-B, Elements of Claim, ¶ 5:528 (The Rutter Group)
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.70[5], 215.111[2][c] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§§ 270.42, 270.193, 270.194 (Matthew Bender)
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4203. Constructive Fraudulent Transfer—Insolvency—Essential
Factual Elements (Civ. Code, § 3439.05)
[Name of plaintiff] claims [he/she/nonbinary pronoun/it] was harmed
because [name of debtor] [transferred property/incurred an obligation] to
[name of defendant] and was unable to pay [name of plaintiff] money that
was owed. [This is called “constructive fraud.”] To establish this claim
against [name of defendant], [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] has a right to payment from [name of
debtor] for [insert amount of claim];
2. That [name of debtor] [transferred property/incurred an
obligation] to [name of defendant];
3. That [name of debtor] did not receive a reasonably equivalent
value in exchange for the [transfer/obligation];
4. That [name of plaintiff]’s right to payment from [name of debtor]
arose before [name of debtor] [transferred property/incurred an
obligation];
5. That [name of debtor] was insolvent at that time or became
insolvent as a result of the transfer or obligation;
6. That [name of plaintiff] was harmed; and
7. That [name of debtor]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
If you decide that [name of plaintiff] has proved all of the above, [he/she/
nonbinary pronoun/it] does not have to prove that [name of debtor]
intended to defraud creditors.
New June 2006; Revised June 2016
Directions for Use
Under the Uniform Voidable Transactions Act (formerly the Uniform Fraudulent
Transfer Act), a transfer made or obligation incurred by a debtor is voidable as to a
creditor whose claim arose before the transfer was made or the obligation was
incurred if the debtor made the transfer or incurred the obligation without receiving
a reasonably equivalent value in exchange for the transfer or obligation and the
debtor was insolvent at that time or the debtor became insolvent as a result of the
transfer or obligation. (Civ. Code, § 3439.05.)
This instruction assumes the defendant is a transferee of the debtor. This instruction
may be used along with CACI No. 4202, Constructive Fraudulent Transfer—No
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Reasonably Equivalent Value Received─Essential Factual Elements, if it is alleged
that the plaintiff became a creditor before the transfer was made or the obligation
was incurred. Read the bracketed second sentence if the plaintiff is asserting causes
of action for both actual and constructive fraud. Also give CACI No. 4205,
“Insolvency” Explained, and CACI No. 4206, Presumption of Insolvency.
Courts have held that there is a right to a jury trial whenever the remedy sought is
monetary relief, including even the return of a “determinate sum of money.”
(Wisden v. Superior Court (2004) 124 Cal.App.4th 750, 757 [21 Cal.Rptr.3d 523].)
If the only remedy sought is the return of a particular nonmonetary asset, the action
is an equitable action. However, even if a specific nonmonetary asset is involved, a
conspiracy claim or an action against any party other than the transferee who
possesses the asset (e.g., “the person for whose benefit the transfer was made” (Civ.
Code, § 3439.08(b)(1)(A)) necessarily would seek monetary relief and give rise to a
right to a jury trial.
Sources and Authority
• Voidable Transaction Involving Insolvency. Civil Code section 3439.05.
• When Value Is Given. Civil Code section 3439.03.
• “There are two forms of constructive fraud under the UFTA. Civil Code section
3439.04 . . . provides that a transfer is fraudulent if the debtor did not receive
reasonably equivalent consideration and either ‘(1) Was engaged or about to
engage in a business or a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the business or transaction; or (2)
Intended to incur, or believed or reasonably should have believed that he or she
would incur, debts beyond his or her ability to pay as they became due.’ ”
(Mejia v. Reed (2003) 31 Cal.4th 657, 669–670 [3 Cal.Rptr.3d 390, 74 P.3d
166].)
• “Even without actual fraudulent intent, a transfer may be fraudulent as to present
creditors if the debtor did not receive ‘a reasonably equivalent value in exchange
for the transfer’ and ‘the debtor was insolvent at that time or the debtor became
insolvent as a result of the transfer or obligation.’ ” (PGA West Residential Assn.,
Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 169 [221 Cal.Rptr.3d
353].)
• “A well-established principle of the law of fraudulent transfers is, ‘A transfer in
fraud of creditors may be attacked only by one who is injured thereby. Mere
intent to delay or defraud is not sufficient; injury to the creditor must be shown
affirmatively. In other words, prejudice to the plaintiff is essential. It cannot be
said that a creditor has been injured unless the transfer puts beyond [her] reach
property [she] otherwise would be able to subject to the payment of [her]
debt.’ ” (Mehrtash v. Mehrtash (2001) 93 Cal.App.4th 75, 80 [112 Cal.Rptr.2d
802], internal citations omitted.)
Secondary Sources
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
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Defenses, Ch. 5(III)-B, Elements of Claim, ¶ 5:545 et seq. (The Rutter Group)
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.70[5], 215.111[2][c] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§§ 270.42, 270.191, 270.192 (Matthew Bender)
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4204. “Transfer” Explained
“Transfer” means every method of parting with a debtor’s property or
an interest in a debtor’s property.
[Read one of the following options:]
[A transfer may be direct or indirect, absolute or conditional, voluntary
or involuntary. A transfer includes [the payment of money/a release/a
lease/a license/ [and] the creation of a lien or other encumbrance].]
[In this case, [describe transaction] is a transfer.]
New June 2006; Revised June 2016
Directions for Use
This instruction sets forth the statutory definition of a “transfer” within the Uniform
Voidable Transactions Act (formerly the Uniform Fraudulent Transfer Act). (See Civ.
Code, § 3439.01(m).) Read the second bracketed option for the second sentence if
the transaction has been stipulated to or determined as a matter of law. Otherwise,
read the first bracketed option. Include only the bracketed terms at the end of the
first option that are at issue in the case.
Sources and Authority
• “Transfer” Defined. Civil Code section 3439.01(m).
• “On its face, the UFTA applies to all transfers. Civil Code, section § 3439.01,
subdivision (i) defines ‘[t]ransfer’ as ‘every mode, direct or indirect, absolute or
conditional, voluntary or involuntary, of disposing of or parting with an asset or
an interest in an asset . . . .’ The UFTA excepts only certain transfers resulting
from lease terminations or lien enforcement.” (Mejia v. Reed (2003) 31 Cal.4th
657, 664 [3 Cal.Rptr.3d 390, 74 P.3d 166], internal citations omitted.)
• “Civil Code section 3439.01, subdivision (m) broadly defines ‘transfer’ to mean
“every mode, direct or indirect, absolute or conditional, voluntary or involuntary,
of disposing of or parting with an asset or an interest in an asset, and includes
payment of money, release, lease, license, and creation of a lien or other
encumbrance.’ This definition is broad enough to include transfers of assets by
means of executing on a judgment obtained by fraud or collusion.” (Chen v.
Berenjian (2019) 33 Cal.App.5th 811, 817 [245 Cal.Rptr.3d 378], internal
citation omitted.)
• “Under this definition, there is no doubt that an agreement made during
marriage in which a debtor-spouse agrees that the nondebtor-spouse’s future
earnings, income, or assets would be the nondebtor-spouse’s separate property
constitutes a transfer because the debtor-spouse is parting with an interest in an
asset—the community property represented by the other spouse’s earnings—in
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which he or she has a ‘present [and] existing . . . interest[] during continuance
of the marriage.’ ” (Sturm v. Moyer (2019) 32 Cal.App.5th 299, 308 [243
Cal.Rptr.3d 556], original italics, internal citations omitted.)
• “In light of the suggestions raised by the legislative language and history, and
the strong policy—advanced by both the UFTA and section 911 of the Family
Code—of protecting the rights of creditors from fraudulent transfers, we
conclude that the Legislature must have intended that UFTA can apply to
premarital agreements in which the prospective spouses agree that each spouse’s
earnings, income, and property acquired during marriage will be that spouse’s
separate property.” (Sturm, supra, 32 Cal.App.5th at p. 315.)
• “Transfers to bogus corporations that are wholly owned and controlled by the
debtor are ‘transfers’ for purposes of the UFTA.” (PGA West Residential Assn.,
Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 173 [221 Cal.Rptr.3d
353].)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prelawsuit Considerations, ¶ 3:319 et seq. (The Rutter Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§§ 270.35[1], 270.37 (Matthew Bender)
1 Matthew Bender Practice Guide: California Debt Collection and Enforcement of
Judgments, Ch. 4, Voidable Transactions, 4.07
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4205. “Insolvency” Explained
[[Name of debtor] was insolvent [at the time/as a result] of the transaction
if, at fair valuation, the total amount of [his/her/nonbinary pronoun/its]
debts was greater than the total amount of [his/her/nonbinary pronoun/its]
assets.]
In determining [name of debtor]’s assets, do not include property that has
been [transferred, concealed, or removed with intent to hinder, delay, or
defraud creditors/ [or] transferred [specify grounds for voidable transfer
based on constructive fraud]]. [In determining [name of debtor]’s debts, do
not include a debt to the extent it is secured by a valid lien on [his/her/
nonbinary pronoun/its] property that is not included as an asset.]
New June 2006; Revised June 2016
Directions for Use
Give this instruction with CACI No. 4203, Constructive Fraudulent
Transfer—Insolvency—Essential Factual Elements. Give also CACI No. 4206,
Presumption of Insolvency.
Property the transfer of which is potentially voidable under the Uniform Voidable
Transactions Act (formerly the Uniform Fraudulent Transfer Act) is to be excluded
from the computation of the debtor’s assets for purposes of determining insolvency.
(Civ. Code, § 3439.02(c).) In the first sentence of the second paragraph select the
first option if there is property transferred and alleged to be voidable for actual
fraud (see Civ. Code, § 3439.04(a)(1).), and specify the grounds in the second
option if there is property transferred and alleged to be voidable for constructive
fraud. (See Civ. Code, §§ 3439.04(a)(2), 3904.05.) Read the bracketed last sentence
if appropriate to the facts. (See Civ. Code, § 3439.02(d).)
Sources and Authority
• When Debtor Is Insolvent. Civil Code section 3439.02.
• “Asset” Defined. Civil Code section 3439.01(a).
• “To determine solvency, the value of a debtor’s assets and debts are compared.
By statutory definition, a debtor’s assets exclude property that is exempt from
judgment enforcement. Retirement accounts are generally exempt.” (Mejia v.
Reed (2003) 31 Cal.4th 657, 670 [3 Cal.Rptr.3d 390, 74 P.3d 166], internal
citations omitted.)
• “We conclude . . . that future child support payments should not be viewed as a
debt under the UFTA.” (Mejia, supra, 31 Cal.4th at p. 671.)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
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Prelawsuit Considerations, ¶ 3:327 et seq. (The Rutter Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§§ 270.42[3], 270.192 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 307, Insolvency, § 307.32
(Matthew Bender)
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4206. Presumption of Insolvency
A debtor who is generally not paying [his/her/nonbinary pronoun/its]
debts as they become due, other than because of a legitimate dispute, is
presumed to be insolvent.
In determining whether [name of debtor] was generally not paying [his/
her/nonbinary pronoun/its] debts as they became due, you may consider
all of the following:
(a) The number of [name of debtor]’s debts;
(b) The percentage of debts that were not being paid;
(c) How long those debts remained unpaid;
(d) Whether special circumstances explain any failure to pay the
debts; and
(e) [Name of debtor]’s payment practices before the period of alleged
nonpayment [and the payment practices of [name of debtor]’s
[trade/industry]].
If [name of plaintiff] proves that [name of debtor] was generally not
paying debts as they became due, then you must find that [name of
debtor] was insolvent unless [name of defendant] proves that [name of
debtor] was solvent.
New June 2006; Revised June 2016
Directions for Use
This instruction should be read in conjunction with CACI No. 4203, Constructive
Fraudulent Transfer—Insolvency—Essential Factual Elements, and CACI No. 4205,
Insolvency Explained.
Sources and Authority
• Presumption of Insolvency. Civil Code section 3439.02(b).
• “Subdivision (c) [now subdivision (b)] establishes a rebuttable presumption of
insolvency from the fact of general nonpayment of debts as they become due.
. . . The presumption imposes on the party against whom the presumption is
directed the burden of proving that the nonexistence of insolvency as defined in
subdivision (a) is more probable than its existence.” (Legislative Committee
Comment to Civil Code section 3439.02.)
• “In determining whether a debtor is paying its debts generally as they become
due, the court should look at more than the amount and due dates of the
indebtedness. The court should also take into account such factors as the number
of the debtor’s debts, the proportion of those debts not being paid, the duration
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of the nonpayment, and the existence of bona fide disputes or other special
circumstances alleged to constitute an explanation for the stoppage of payments.
The court’s determination may be affected by a consideration of the debtor’s
payment practices prior to the period of alleged nonpayment and the payment
practices of the trade or industry in which the debtor is engaged.” (Legislative
Committee Comment to Civil Code section 3439.02.)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prelawsuit Considerations, ¶ 3:328 (The Rutter Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§ 270.42[3][e], [4] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 307, Insolvency, § 307.20
(Matthew Bender)
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4207. Affirmative Defense—Good Faith (Civ. Code, § 3439.08(a),
(f)(1))
[Name of defendant] is not liable to [name of plaintiff] [on the claim for
actual fraud] if [name of defendant] proves both of the following:
[Use one of the following two sets of elements:]
[1. That [name of defendant] took the property from [name of debtor]
in good faith; and
2. That [he/she/nonbinary pronoun/it] took the property for a
reasonably equivalent value.]
[or]
[1. That [name of defendant] received the property from [name of
third party], who had taken the property from [name of debtor] in
good faith; and
2. That [name of third party] had taken the property for a
reasonably equivalent value.]
“Good faith” means that [name of defendant/third party] acted without
actual fraudulent intent and that [he/she/nonbinary pronoun/it] did not
collude with [name of debtor] or otherwise actively participate in any
fraudulent scheme. If you decide that [name of defendant/third party]
knew facts showing that [name of debtor] had a fraudulent intent, then
[name of defendant/third party] cannot have taken the property in good
faith.
New June 2006; Revised June 2016, November 2017
Directions for Use
This instruction presents a defense that is available to a good-faith transferee for
value in cases involving allegations of actual fraud under the Uniform Voidable
Transactions Act (formerly the Uniform Fraudulent Transfer Act). (See Civ. Code,
§ 3439.08(a), (f)(1).) Include the bracketed language in the first sentence if the
plaintiff is bringing claims for both actual fraud and constructive fraud.
The Legislative Committee Comments—Assembly to Civil Code section 3439.08(a)
provides that the transferee’s knowledge of the transferor’s fraudulent intent may, in
combination with other facts, be relevant on the issue of the transferee’s good faith.
(See Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1299 [123
Cal.Rptr.2d 924], emphasis added.) However, another sentence of the same comment
provides “knowledge of facts rendering the transfer voidable would be inconsistent
with the good faith that is required of a protected transferee.” This language
indicates that if the transferee knew facts showing that the transferor had a
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fraudulent intent, there cannot be a finding of good faith regardless of any
combination of facts; and one court has so held. (See Nautilus, Inc. v. Yang (2017)
11 Cal.App.5th 33, 46 [217 Cal.Rptr.3d 458].) The committee believes that Nautilus
presents the better rule.
Sources and Authority
• Transaction Not Voidable as to Good-Faith Transferee for Reasonable Value.
Civil Code section 3439.08(a).
• Transferee’s Burden of Proving Good Faith and Reasonable Value. Civil Code
section 3439.08(f)(1).
• When Value is Given. Civil Code section 3439.03.
• “If a transferee or obligee took in good faith and for a reasonably equivalent
value, however, the transfer or obligation is not voidable. Whether a transfer is
made with fraudulent intent and whether a transferee acted in good faith and
gave reasonably equivalent value within the meaning of section 3439.08,
subdivision (a), are questions of fact.” (Nautilus Inc., supra, 11 Cal.App.5th at p.
40, internal citation and footnote omitted.)
• “The Legislative Committee comment to Civil Code section 3439.08, subdivision
(a), provides that ‘good faith,’ within the meaning of the provision, ‘means that
the transferee acted without actual fraudulent intent and that he or she did not
collude with the debtor or otherwise actively participate in the fraudulent scheme
of the debtor. The transferee’s knowledge of the transferor’s fraudulent intent
may, in combination with other facts, be relevant on the issue of the transferee’s
good faith . . . .’ ” (Annod Corp., supra, 100 Cal.App.4th at p. 1299, internal
citations omitted.)
• “ ‘Fraudulent intent,’ ‘collusion,’ ‘active participation,’ ‘fraudulent scheme’—this
is the language of deliberate wrongful conduct. It belies any notion that one can
become a fraudulent transferee by accident, or even negligently. It certainly
belies the notion that guilty knowledge can be created by the fiction of
constructive notice.” (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1859
[37 Cal.Rptr.2d 63], original italics.)
• “We read Brincko [v. Rio Props. (D.Nev., Jan. 14, 2013, No. 2:10-CV-00930-
PMP-PAL) 2013 U.S.Dist. Lexis 5986, pp. *51–*52] as requiring actual
knowledge by the transferee of a fraudulent intent on the part of the
transferor—not merely constructive knowledge or inquiry notice. To that extent,
we agree with Brincko’s construction of the proper test for application of the
good faith defense. However, our formulation of the test (1) does not use the
words ‘suggest to a reasonable person’ because that phrase might imply inquiry
notice—a concept rejected in Lewis and Brincko—and (2) avoids use of the
words ‘voidable’ and ‘fraudulent transfer’ because those concepts are
inconsistent with the Legislative Committee comment to section 3439.08.
Accordingly, we hold that a transferee does not take in good faith if the
transferee had actual knowledge of facts showing the transferor had fraudulent
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intent.” (Nautilus, Inc., supra, 11 Cal.App.5th at p. 46, original italics.)
• “[T]he trial court erred in placing the burden of proof on [plaintiff] to prove the
good faith defense did not apply.” (Nautilus, Inc., supra, 11 Cal.App.5th at p.
41.)
• “[U]nder section 3439.08, subdivision (b)(1)(A), judgment for a fraudulent
transfer may be entered against ‘[t]he first transferee of the asset or the person
for whose benefit the transfer was made.’ ” (Lo v. Lee (2018) 24 Cal.App.5th
1065, 1072 [234 Cal.Rptr.3d 824], original italics.)
• “Contrary to plaintiff’s suggestion, the fact that a person received any kind of
‘benefit,’ no matter how intangible or indirect, from a fraudulent transaction does
not necessarily subject that person to liability. There are limits to the legal
assessment of the type of ‘benefit’ that will subject a beneficiary to liability for
the debtor’s alleged fraudulent transfer. The benefit received must be ‘direct,
ascertainable and quantifiable’ and must bear a ‘ “necessary correspondence to
the value of the property transferred.” ’ ‘ “[T]ransfer beneficiary status depends
on three aspects of the ‘benefit’: (1) it must actually have been received by the
beneficiary; (2) it must be quantifiable; and (3) it must be accessible to the
beneficiary.” ’ ” (Lo, supra, 24 Cal.App.5th at p. 1073.)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prelawsuit Considerations, ¶ 3:324 (The Rutter Group)
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 5(III)-C, Particular Defenses, ¶ 5:580 et seq. (The Rutter Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§§ 270.35[2], 270.44[1], 270.47[2], [3] (Matthew Bender)
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4208. Affirmative Defense—Statute of Limitations—Actual and
Constructive Fraud (Civ. Code, § 3439.09(a), (b))
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law.
[[With respect to [name of plaintiff]’s claim of actual intent to hinder,
delay, or defraud,] [To/to] succeed on this defense, [name of defendant]
must prove that [name of plaintiff] filed [his/her/nonbinary pronoun/its]
lawsuit later than four years after the [transfer was made/obligation was
incurred] [or, if later than four years, no later than one year after the
[transfer/obligation] was or could reasonably have been discovered by
[name of plaintiff]].
[[With respect to [name of plaintiff]’s claim of constructive fraud,] [To/to]
succeed on this defense, [name of defendant] must prove that [name of
plaintiff] filed [his/her/nonbinary pronoun/its] lawsuit later than four years
after the [transfer was made/obligation was incurred].]
New June 2006; Revised December 2007, June 2016, May 2018
Directions for Use
This instruction provides an affirmative defense for failure to file within the statute
of limitations. (See Civ. Code, § 3439.09(a), (b).) Read the first bracketed paragraph
regarding delayed discovery in cases involving actual intent to hinder, delay, or
defraud. (See Civ. Code, § 3439.04(a)(1); CACI No. 4200.) Read the second in
cases involving constructive fraud. (See Civ. Code, §§ 3439.04(a)(2), 3439.05; CACI
Nos. 4202, 4203.) Read the first bracketed phrases in those paragraphs if the
plaintiff has brought both actual and constructive fraud claims.
This instruction may not be modified to assert the seven-year period under Civil
Code section 3439.09(c). (See PGA West Residential Assn., Inc. v. Hulven Internat.,
Inc. (2017) 14 Cal.App.5th 156, 178–185 [221 Cal.Rptr.3d 353] [Civil Code section
3439.09(c) is a statute of repose, not a statute of limitations].)
Sources and Authority
• Statute of Limitations. Civil Code section 3439.09(a), (b).
• Statute of Repose. Civil Code section 3439.09(c).
• “[T]he UFTA is not the exclusive remedy by which fraudulent conveyances and
transfers may be attacked. They may also be attacked by, as it were, a common
law action. If and as such an action is brought, the applicable statute of
limitations is section 338 (d) and, more importantly, the cause of action accrues
not when the fraudulent transfer occurs but when the judgment against the
debtor is secured (or maybe even later, depending upon the belated discovery
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issue).” (Macedo v. Bosio (2001) 86 Cal.App.4th 1044, 1051 [104 Cal.Rptr.2d
1].)
• “In the context of the scheme of law of which section 3934.09 is a part, where
an alleged fraudulent transfer occurs while an action seeking to establish the
underlying liability is pending, and where a judgment establishing the liability
later becomes final, we construe the four-year limitation period, i.e., the
language, ‘four years after the transfer was made or the obligation was incurred,’
to accommodate a tolling until the underlying liability becomes fixed by a final
judgment.” (Cortez v. Vogt (1997) 52 Cal.App.4th 917, 920 [60 Cal.Rptr.2d
841].)
• “ ‘Cal. Civ. Code § 3439.09(a) and (b) are statutes of limitation requiring a
plaintiff to file a fraudulent transfer action within four years of the transfer or,
for an intentional fraud, within one year after the transfer was or could
reasonably have been discovered.’ [Citation]” (PGA West Residential Assn., Inc.,
supra, 14 Cal.App.5th at p. 179.)
• “However, ‘even if belated discovery can be pleaded and proven’ with respect to
the statute of limitations applicable to common law remedies for fraudulent
transfers, ‘in any event the maximum elapsed time for a suit under either the
UFTA or otherwise is seven years after the transfer. [Citation.]’ This conclusion
logically follows from the language of section 3439.09(c). ‘[B]y its use of the
term “[n]otwithstanding any other provision of law,” the Legislature clearly
meant to provide an overarching, all-embracing maximum time period to attack a
fraudulent transfer, no matter whether brought under the UFTA or otherwise.’ ”
(PGA West Residential Assn., Inc., supra, 14 Cal.App.5th at pp. 170–171,
original italics, internal citation omitted.)
Secondary Sources
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 3-C,
Prelawsuit Considerations, ¶ 3:351 et seq. (The Rutter Group)
23 California Forms of Pleading and Practice, Ch. 270, Fraudulent Conveyances,
§§ 270.49, 270.50 (Matthew Bender)
4209–4299. Reserved for Future Use
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VF-4200. Actual Intent to Hinder, Delay, or Defraud
Creditor—Affirmative Defense—Good Faith
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] have a right to payment from [name of
debtor]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of debtor] [transfer property/incur an obligation] to
[name of defendant]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of debtor] [transfer the property/incur the obligation]
with the intent to hinder, delay, or defraud one or more of [his/
her/nonbinary pronoun/its] creditors?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Was [name of debtor]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [[name of defendant]/[name of third party]] receive the property
from [name of debtor] in good faith?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, skip question 6 and answer question 7.
6. Did [[name of defendant]/[name of third party]] receive the property
for a reasonably equivalent value?
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6. Yes No
6. If your answer to question 6 is yes, stop here, answer no further
questions, and have the presiding juror sign and date this form.
If you answered no, then answer question 7.
7. What are [name of plaintiff]’s damages?
7. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2011; Revised June 2016, December 2016
Directions for Use
This verdict form is based on CACI No. 4200, Actual Intent to Hinder, Delay, or
Defraud a Creditor—Essential Factual Elements, and CACI No. 4207, Affırmative
Defense—Good Faith. The defendant is the transferee of the property. The transferee
may have received the property in good faith even though the debtor had a
fraudulent intent. (See Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th
1286, 1299 [123 Cal.Rptr.2d 924].)
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-4201. Constructive Fraudulent Transfer—No Reasonably
Equivalent Value Received
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] have a right to payment from [name of
debtor]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of debtor] [transfer property/incur an obligation] to
[name of defendant]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of debtor] fail to receive a reasonably equivalent value
in exchange for the [transfer/obligation]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. [[Was [name of debtor] [in business/about to start a business]/Did
[name of debtor] enter into a transaction] when [his/her/nonbinary
pronoun/its] remaining assets were unreasonably small for the
[business/transaction]?]
4. [or]
4. [Did [name of debtor] intend to incur debts beyond
[his/her/nonbinary pronoun/its] ability to pay as they became due?]
4. [or]
4. [Did [name of debtor] believe or should [he/she/nonbinary pronoun/
it] reasonably have believed that [he/she/nonbinary pronoun/it]
would incur debts beyond [his/her/nonbinary pronoun/its] ability to
pay as they became due?]
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
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answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of debtor]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
6. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2011; Revised June 2016, December 2016
Directions for Use
This verdict form is based on CACI No. 4202, Constructive Fraudulent
Transfer—No Reasonably Equivalent Value Received—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-4202. Constructive Fraudulent Transfer—Insolvency
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] have a right to payment from [name of
debtor]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of debtor] [transfer property/incur an obligation] to
[name of defendant]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of debtor] fail to receive a reasonably equivalent value
in exchange for the [transfer/obligation]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff]’s right to payment from [name of debtor]
arise before [name of debtor] [transferred property/incurred an
obligation]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of debtor] insolvent at that time or did [name of
debtor] become insolvent as a result of the [transfer/ obligation]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of debtor]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
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6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
7. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2011; Revised June 2016, December 2016
Directions for Use
This verdict form is based on CACI No. 4203, Constructive Fraudulent
Transfer—Insolvency—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-4203–VF-4299. Reserved for Future Use
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UNLAWFUL DETAINER
4300. Introductory Instruction
4301. Expiration of Fixed-Term Tenancy—Essential Factual Elements
4302. Termination for Failure to Pay Rent—Essential Factual Elements
4303. Sufficiency and Service of Notice of Termination for Failure to Pay Rent
4304. Termination for Violation of Terms of Lease/Agreement—Essential Factual
Elements
4305. Sufficiency and Service of Notice of Termination for Violation of Terms of
Agreement
4306. Termination of Month-to-Month Tenancy—Essential Factual Elements
4307. Sufficiency and Service of Notice of Termination of Month-to-Month
Tenancy
4308. Termination for Nuisance or Unlawful Use—Essential Factual Elements
(Code Civ. Proc., § 1161(4))
4309. Sufficiency and Service of Notice of Termination for Nuisance or Unlawful
Use
4310–4319. Reserved for Future Use
4320. Affirmative Defense—Implied Warranty of Habitability
4321. Affirmative Defense—Retaliatory Eviction—Tenant’s Complaint (Civ. Code,
§ 1942.5)
4322. Affirmative Defense—Retaliatory Eviction—Engaging in Legally Protected
Activity (Civ. Code, § 1942.5(d))
4323. Affirmative Defense—Discriminatory Eviction (Unruh Act)
4324. Affirmative Defense—Waiver by Acceptance of Rent
4325. Affirmative Defense—Failure to Comply With Rent Control
Ordinance/Tenant Protection Act
4326. Affirmative Defense—Repair and Deduct
4327. Affirmative Defense—Landlord’s Refusal of Rent
4328. Affirmative Defense—Tenant Was Victim of Domestic Violence, Sexual
Assault, Stalking, Elder/Dependent Adult Abuse, or Human Trafficking
(Code Civ. Proc., § 1161.3)
4329. Affirmative Defense—Failure to Provide Reasonable Accommodation
4330. Denial of Requested Accommodation
4331–4339. Reserved for Future Use
4340. Damages for Reasonable Rental Value
4341. Statutory Damages on Showing of Malice (Code Civ. Proc., § 1174(b))
4342. Reduced Rent for Breach of Habitability
4343–4399. Reserved for Future Use
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VF-4300. Termination Due to Failure to Pay Rent
VF-4301. Termination Due to Failure to Pay Rent—Affirmative Defense—Breach
of Implied Warranty of Habitability
VF-4302. Termination Due to Violation of Terms of Lease/Agreement
VF-4303–VF-4399. Reserved for Future Use
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4300. Introductory Instruction
This is an action for what is called unlawful detainer. [Name of plaintiff],
the [landlord/tenant], claims that [name of defendant] is [his/her/nonbinary
pronoun/its] [tenant/subtenant] under a [lease/rental agreement/sublease]
and that [name of defendant] no longer has the right to occupy the
property [by subleasing to [name of subtenant]]. [Name of plaintiff] seeks
to recover possession of the property from [name of defendant]. [Name of
defendant] claims that [he/she/nonbinary pronoun/it] still has the right to
occupy the property because [insert defenses at issue].
The property involved in this case is [describe property: e.g., “an
apartment,” “a house,” “space in a commercial building”] located in [city
or area] at [address].
New August 2007
Directions for Use
If the plaintiff is the landlord or owner and the defendant is the tenant, select
“landlord” and “tenant,” in the first sentence. If the plaintiff is a tenant seeking to
recover possession from a subtenant, select “tenant” and “subtenant.” (Code Civ.
Proc., § 1161(3).)
If the plaintiff is the landlord or owner, select either “lease” or “rental agreement” in
the first sentence. Commercial documents are usually called “leases” while
residential documents are often called “rental agreements.” Select the term that is
used on the written document. If the plaintiff is a tenant seeking to recover
possession from a subtenant, select “sublease.”
If the defendant is a tenant who has subleased the premises to someone else, add the
bracketed language in the first paragraph referring to subleasing.
Sources and Authority
• Right to Jury Trial. Code of Civil Procedure section 1171.
• Right of Tenant to Bring Unlawful Detainer Against Subtenant. Code of Civil
Procedure section 1161(3).
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• Definition of “Just Cause.” Civil Code section 1946.2(b).
• “The remedy of unlawful detainer is designed to provide means by which the
timely possession of premises which are wrongfully withheld may be secured to
the person entitled thereto.” (Knowles v. Robinson (1963) 60 Cal.2d 620, 625 [36
Cal.Rptr. 33, 387 P.2d 833].)
• “Chapter 4 of title 3 of part 3 of the Code of Civil Procedure is commonly
known as the Unlawful Detainer Act (hereafter, the Act). The Act is broad in
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scope and available to both lessors and lessees who have suffered certain wrongs
committed by the other. Procedures and proceedings in unlawful detainer were
not known at common law and are entirely creatures of statute. As such, they are
governed solely by the statutes which created them. Thus, where the Act ‘deals
with matters of practice, its provisions supersede the rules of practice contained
in other portions of the code.’ ” (Losornio v. Motta (1998) 67 Cal.App.4th 110,
113 [78 Cal.Rptr.2d 799], internal citations omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 734
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 9.5, 9.34–9.36
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 1.4–1.5
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.01
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.02
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.12 (Matthew Bender)
Miller & Starr California Real Estate 4th, §§ 34:195, 34:200, 34:205 (Thomson
Reuters)
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4301. Expiration of Fixed-Term Tenancy—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] [and [name of
subtenant], a subtenant of [name of defendant],] no longer [has/have] the
right to occupy the property because the [lease/rental
agreement/sublease] has ended. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [owns/leases] the property;
2. That [name of plaintiff] [leased/subleased] the property to [name of
defendant] until [insert end date];
3. That [name of plaintiff] did not give [name of defendant] permission
to continue occupying the property after the [lease/rental
agreement/sublease] ended; and
4. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
New August 2007; Revised June 2011, May 2020
Directions for Use
If the plaintiff is the landlord or owner, select “lease” or “rental agreement” in the
first sentence and in element 3 as appropriate, “owns” in element 1, and “leased” in
element 2. Commercial documents are usually called “leases” while residential
documents are often called “rental agreements.” Select the term that is used on the
written document.
If the plaintiff is a tenant seeking to recover possession from a subtenant, select
“sublease” in the first paragraph and in element 3, “leases” in element 1, and
“subleased” in element 2. (Code Civ. Proc., § 1161(3).)
If persons other than the tenant-defendant are occupying the premises, include the
bracketed language in the first paragraph and in element 4.
The Tenant Protection Act of 2019 imposes additional requirements for the
termination of a rental agreement for certain residential tenancies. (Civ. Code,
§ 1946.2(a) [“just cause” requirement for termination of certain residential
tenancies], (b) [“just cause” defined].) This instruction should be modified
accordingly if applicable.
Sources and Authority
• Holding Over After Expiration of Lease Term. Code of Civil Procedure section
1161.
• Conversion to Ordinary Civil Action If Possession Not at Issue. Civil Code
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section 1952.3(a).
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• “ ‘In order that such an action may be maintained the conventional relation of
landlord and tenant must be shown to exist. In other words, the action is limited
to those cases in which the tenant is estopped to deny the landlord’s title.’ ”
(Fredericksen v. McCosker (1956) 143 Cal.App.2d 114, 116 [299 P.2d 908],
internal citations omitted.)
• “The most important difference between a periodic tenancy and a tenancy for a
fixed term—such as six months—is that the latter terminates at the end of such
term, without any requirement of notice as in the former. In order to create an
estate for a definite period, the duration must be capable of exact computation
when it becomes possessory, otherwise no such estate is created.” (Camp v.
Matich (1948) 87 Cal.App.2d 660, 665–666 [197 P.2d 345], internal citations
omitted.)
• “It is well established that it is the duty of the tenant as soon as his tenancy
expires by its own limitations, to surrender the possession of the premises and
that no notice of termination is necessary, the lease itself terminating the
tenancy; and if he continues in possession beyond that period without the
permission of the landlord, he is guilty of unlawful detainer, and an action may
be commenced against him at once, under the provisions of subdivision 1 of
section 1161 of the Code of Civil Procedure, without the service upon him of
any notice.” (Ryland v. Appelbaum (1924) 70 Cal.App. 268, 270 [233 P. 356],
internal citations omitted.)
• “If the tenant gives up possession of the property after the commencement of an
unlawful detainer proceeding, the action becomes an ordinary one for damages.”
(Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d
654, 658 [196 Cal.Rptr. 174].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 691, 705,
754
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) § 8.82
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.4, 7.8
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.27 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.42
(Matthew Bender)
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Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.07
Miller & Starr, California Real Estate 4th, § 19:43 (Thomson Reuters)
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4302. Termination for Failure to Pay Rent—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] [and [name of
subtenant], a subtenant of [name of defendant],] no longer [has/have] the
right to occupy the property because [name of defendant] has failed to
pay the rent. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] [owns/leases] the property;
2. That [name of plaintiff] [rented/subleased] the property to [name of
defendant];
3. That under the [lease/rental agreement/sublease], [name of
defendant] was required to pay rent in the amount of $[specify
amount] per [specify period, e.g., month];
4. That [name of plaintiff] properly gave [name of defendant] three
days’ written notice to pay the rent or vacate the property;
5. That as of [date of three-day notice], at least the amount stated in
the three-day notice was due;
6. That [name of defendant] did not pay the amount stated in the
notice within three days after [service/receipt] of the notice; and
7. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
New August 2007; Revised June 2011, December 2011, December 2013, May 2021
Directions for Use
Modify this instruction as necessary for rent due on a residential tenancy between
March 1, 2020, and June 30, 2021, including, but not limited to, substitution of the
term “fifteen business days” wherever the term “three days” appears in the essential
factual elements. (See COVID-19 Tenant Relief Act, Code Civ. Proc., § 1179.01 et
seq.; Stats. 2021, ch. 2 (Sen. Bill 91), Code Civ. Proc., § 1179.02.)
Include the bracketed references to a subtenancy in the opening paragraph and in
element 7 if persons other than the tenant-defendant are occupying the premises.
If the plaintiff is the landlord or owner, select “owns” in element 1, “rented” in
element 2, and either “lease” or “rental agreement” in element 3. Commercial
documents are usually called “leases” while residential documents are often called
“rental agreements.” Select the term that is used on the written document. If the
plaintiff is a tenant seeking to recover possession from a subtenant, select “leases”
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in element 1, “subleased” in element 2, and “sublease” in element 3. (Code Civ.
Proc., § 1161(3).)
Defective service may be waived if defendant admits receipt of notice. (See Valov v.
Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the fact of
service is contested, compliance with the statutory requirements must be shown.
(Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425
[123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option for the
jury to determine whether or not defective service was waived if there was actual
receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
applies to a residential lease that specifies a method of service has not yet been
decided.
If the lease specifies a time period for notice other than the three-day period,
substitute that time period in elements 4, 5, and 6, provided that it is not less than
three days.
There is a conflict in the case law with respect to when the three-day period begins
if substituted service is used. Compare Davidson v. Quinn (1982) 138 Cal.App.3d
Supp. 9, 14 [188 Cal.Rptr. 421] [tenant must be given three days to pay, so period
does not begin until actual notice is received] with Walters v. Meyers (1990) 226
Cal.App.3d Supp. 15, 19–20 [277 Cal.Rptr. 316] [notice is effective when posted
and mailed]. This conflict is accounted for in element 6.
See CACI No. 4303, Suffıciency and Service of Notice of Termination for Failure to
Pay Rent, for an instruction regarding proper notice.
Sources and Authority
• Unlawful Detainer for Tenant’s Default in Rent Payments. Code of Civil
Procedure section 1161(2).
• COVID-19 Tenant Relief Act. Code of Civil Procedure section 1179.01 et seq.
• Senate Bill 91 (Stats. 2021, ch. 2). Code of Civil Procedure section 1179.02 et
seq.
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• Conversion to Civil Action if Possession No Longer at Issue. Civil Code section
1952.3(a).
• “[M]ere failure of a tenant to quit the premises during the three-day notice
period does not necessarily justify an unlawful detainer action. If a tenant
vacates the premises and surrenders possession to the landlord prior to the
complaint being filed, then no action for unlawful detainer will lie even though
the premises were not surrendered during the notice period. This is true because
the purpose of an unlawful detainer action is to recover possession of the
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premises for the landlord. Since an action in unlawful detainer involves a
forfeiture of the tenant’s right to possession, one of the matters that must be
pleaded and proved for unlawful detainer is that the tenant remains in possession
of the premises. Obviously this cannot be established where the tenant has
surrendered the premises to landlord prior to the filing of the complaint. In such
a situation the landlord’s remedy is an action for damages and rent.” (Briggs v.
Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900, 905–906
[126 Cal.Rptr. 34], footnote and internal citations omitted.)
• “Proper service on the lessee of a valid three-day notice to pay rent or quit is an
essential prerequisite to a judgment declaring a lessor’s right to possession under
section 1161, subdivision 2. A lessor must allege and prove proper service of the
requisite notice. Absent evidence the requisite notice was properly served
pursuant to section 1162, no judgment for possession can be obtained.”
(Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513 [65 Cal.Rptr.2d
457], internal citations omitted.)
• “Section 1162 does not authorize service of a three-day notice to pay rent or quit
by mail delivery alone, certified or otherwise. It provides for service by: personal
delivery; leaving a copy with a person of suitable age and discretion at the
renter’s residence or usual place of business and sending a copy through the
mail to the tenant’s residence; or posting and delivery of a copy to a person
there residing, if one can be found, and sending a copy through the mail. Strict
compliance with the statute is required.” (Liebovich, supra, 56 Cal.App.4th at p.
516, original italics, internal citations omitted.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the three-day notice. Because there was no admission of receipt in this
case, service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a three-day notice to pay rent or quit provided in [Code of Civil
Procedure] section 1162. Therefore, the judgment must be reversed.” (Liebovich,
supra, 56 Cal.App.4th at p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the three-day notice may be effected on a residential tenant: . . . . As explained
in Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance
with one of these methods must be shown or the judgment must be reversed.’ ”
(Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
• “If the tenant gives up possession of the property after the commencement of an
unlawful detainer proceeding, the action becomes an ordinary one for damages.”
(Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d
654, 658 [196 Cal.Rptr. 174].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 753, 756,
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758
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.35–8.45
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.17–6.37
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 5-G, Eviction
Controls, ¶¶ 5:224.3, 5:277.1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶ 7:96 (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.22 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.07
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
Miller & Starr, California Real Estate 4th, § 19:200 (Thomson Reuters)
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4303. Sufficiency and Service of Notice of Termination for Failure
to Pay Rent
[Name of plaintiff] contends that [he/she/nonbinary pronoun/it] properly
gave [name of defendant] three days’ notice to pay the rent or vacate the
property. To prove that the notice contained the required information
and was properly given, [name of plaintiff] must prove all of the
following:
1. That the notice informed [name of defendant] in writing that [he/
she/nonbinary pronoun/it] must pay the amount due within three
days or vacate the property;
2. That the notice stated [no more than/a reasonable estimate of] the
amount due, and the name, telephone number, and address of the
person to whom the amount should be paid, and
2. [Use if payment was to be made personally:
2. the usual days and hours that the person would be available to
receive the payment; and]
2. [or: Use if payment was to be made into a bank account:
2. the number of an account in a bank located within five miles of
the rental property into which the payment could be made, and
the name and street address of the bank; and]
2. [or: Use if an electronic funds transfer procedure had been
previously established:
2. that payment could be made by electronic funds transfer; and]
3. That the notice was given to [name of defendant] at least three
days before [insert date on which action was filed].
[The three-day notice period excludes Saturdays, Sundays, and judicial
holidays, but otherwise begins the day after the notice to pay the rent or
vacate the property was given to [name of defendant].]
Notice was properly given if [select one or more of the following manners
of service:]
3. [the notice was delivered to [name of defendant] personally[./; or]]
3. [[name of defendant] was not at [home or work/the commercial
rental property], and the notice was left with a responsible person
at [[name of defendant]’s residence or place of work/the
commercial property], and a copy was also mailed in an envelope
addressed to [name of defendant] at [[his/her/nonbinary pronoun]
residence/the commercial property]. In this case, notice is
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considered given on the date the second notice was [received by
[name of defendant]/placed in the mail][./; or]]
3. [for a residential tenancy:
3. [name of defendant]’s place of residence and work could not be
discovered, or a responsible person could not be found at either
place, and (1) the notice was posted on the property in a place
where it would easily be noticed, (2) a copy was given to a person
living there if someone could be found, and (3) a copy was also
mailed to the address of the rented property in an envelope
addressed to [name of defendant]. In this case, notice is considered
given on the date the second notice was [received by [name of
defendant]/placed in the mail].]
3. [or for a commercial tenancy:
3. at the time of attempted service, a responsible person could not
be found at the commercial rental property through the exercise
of reasonable diligence, and (1) the notice was posted on the
property in a place where it would easily be noticed, and (2) a
copy was also mailed to the address of the commercial property
in an envelope addressed to [name of defendant]. In this case,
notice is considered given on the date the second notice was
[received by [name of defendant]/placed in the mail].]
[A notice stating a reasonable estimate of the amount of rent due that is
within 20 percent of the amount actually due is reasonable unless [name
of defendant] proves that it was not reasonable. In determining the
reasonableness of the estimate, you may consider whether calculating the
amount of rent required information primarily within the knowledge of
[name of defendant] and whether [name of defendant] accurately furnished
that information to [name of plaintiff].]
New August 2007; Revised December 2010, June 2011, December 2011, November
2019, May 2020, May 2021
Directions for Use
Modify this instruction as necessary for rent due on a residential tenancy between
March 1, 2020, and June 30, 2021, including, but not limited to, substitution of the
term “fifteen business days” wherever the term “three days” appears in the essential
factual elements. (See COVID-19 Tenant Relief Act, Code Civ. Proc., § 1179.01 et
seq.; Stats. 2021, ch. 2 (Sen. Bill 91), Code Civ. Proc., §§ 1179.02, 1179.03,
1179.04.)
Use the reasonable-estimate option in the first sentence of element 2 and include the
final paragraph only in cases involving commercial leases. (Code Civ. Proc.,
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§ 1161.1(a); see also Code Civ. Proc., § 1161.1(e) [presumption that if amount found
to be due is within 20 percent of amount stated in notice, then estimate was
reasonable].)
In element 2, select the applicable manner in which the notice specifies that
payment is to be made; directly to the landlord, into a bank account, or by
electronic funds transfer. (Code Civ. Proc., § 1161(2).)
Select the manner of service used: personal service, substituted service by leaving
the notice at the defendant’s home or place of work or at the commercial rental
property, or substituted service by posting on the property. (See Code Civ. Proc.,
§ 1162.)
There is a conflict in the case law with respect to when the three-day period begins
if substituted service is used. Compare Davidson v. Quinn (1982) 138 Cal.App.3d
Supp. 9, 14 [188 Cal.Rptr. 421] [tenant must be given three days to pay, so period
does not begin until actual notice is received] with Walters v. Meyers (1990) 226
Cal.App.3d Supp. 15, 19–20 [277 Cal.Rptr. 316] [notice is effective when posted
and mailed]. This conflict is accounted for in the second, third, and fourth bracketed
options for the manner of service.
Read the paragraph that follows the elements if any of the three days of the notice
period fell on a Saturday, Sunday, or judicial holiday. (See Code Civ. Proc.,
§ 1161(2).) Judicial holidays are shown on the judicial branch website, www.courts.
ca.gov/holidays.htm.
If a lease specifies a time period for giving notice other than the three-day period,
substitute that time period for three days throughout, provided that it is not less than
three days.
Defective service may be waived if defendant admits receipt of notice. (See Valov v.
Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the fact of
service is contested, compliance with the statutory requirements must be shown.
(Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425
[123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option for the
jury to determine whether or not defective service was waived if there was actual
receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
applies to a residential lease that specifies a method of service has not yet been
decided.
The Tenant Protection Act of 2019 and/or local ordinances may impose additional
notice requirements for the termination of a rental agreement. (See Civ. Code,
§ 1946.2(a) [“just cause” requirement for termination of certain residential
tenancies], (b) [“just cause” defined].) This instruction should be modified
accordingly if applicable.
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Sources and Authority
• Conclusive Presumption of Receipt of Rent Sent to Address Provided in Notice.
Code of Civil Procedure section 1161(2).
• COVID-19 Tenant Relief Act. Code of Civil Procedure section 1179.01 et seq.
• Senate Bill 91 (Stats. 2021, ch. 2). Code of Civil Procedure section 1179.02 et
seq.
• Commercial Tenancy: Estimate of Rent Due in Notice. Code of Civil Procedure
1161.1.
• Manner of Service of Notice. Code of Civil Procedure section 1162.
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• “ ‘[P]roper service on the lessee of a valid three-day notice to pay rent or quit is
an essential prerequisite to a judgment declaring a lessor’s right to possession
under section 1161, subdivision 2. [Citations.]’ [Citation.] ‘A lessor must allege
and prove proper service of the requisite notice. [Citations.] Absent evidence the
requisite notice was properly served pursuant to section 1162, no judgment for
possession can be obtained. [Citations.]’ ” (Borsuk v. Appellate Division of
Superior Court (2015) 242 Cal.App.4th 607, 611 [195 Cal.Rptr.3d 581].)
• “A three-day notice must contain ‘the amount which is due.’ A notice which
demands rent in excess of the amount due does not satisfy this requirement. This
rule ensures that a landlord will not be entitled to regain possession in an
unlawful detainer action unless the tenant has had the opportunity to pay the
delinquent rent.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697 [32
Cal.Rptr.2d 635], internal citations and footnote omitted.)
• “As compared to service of summons, by which the court acquires personal
jurisdiction, service of the three-day notice is merely an element of an unlawful
detainer cause of action that must be alleged and proven for the landlord to
acquire possession.” (Borsuk, supra, 242 Cal.App.4th at pp. 612–613.)
• “[W]e do not agree that a proper notice may not include anything other than
technical rent. It is true that subdivision 2 of Code of Civil Procedure section
1161 relates to a default in the payment of rent. However, the subdivision refers
to the ‘lease or agreement under which the property is held’ and requires the
notice state ‘the amount which is due.’ The language is not ‘the amount of rent
which is due’ or ‘the rent which is due.’ We think the statutory language is
sufficiently broad to encompass any sums due under the lease or agreement
under which the property is held.” (Canal-Randolph Anaheim, Inc. v. Wilkoski
(1978) 78 Cal.App.3d 477, 492 [144 Cal.Rptr. 474].)
• “[T]he service and notice provisions in the unlawful detainer statutes and [Code
of Civil Procedure] section 1013 are mutually exclusive, and thus, section 1013
does not extend the notice periods that are a prerequisite to filing an unlawful
detainer action.” (Losornio v. Motta (1998) 67 Cal.App.4th 110, 112 [78
Cal.Rptr.2d 799].)
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• “Section 1162 does not authorize service of a three-day notice to pay rent or quit
by mail delivery alone, certified or otherwise. It provides for service by: personal
delivery; leaving a copy with a person of suitable age and discretion at the
renter’s residence or usual place of business and sending a copy through the mail
to the tenant’s residence; or posting and delivery of a copy to a person there
residing, if one can be found, and sending a copy through the mail. Strict
compliance with the statute is required.” (Liebovich v. Shahrokhkhany (1997) 56
Cal.App.4th 511, 516 [65 Cal.Rptr.2d 457], original italics, internal citation
omitted.)
• “We . . . hold that service made in accordance with section 1162, subdivision 3,
as applied to section 1161, subdivision 2, must be effected in such a manner as
will give a tenant the three days of written notice required by the Legislature in
which he may cure his default in the payment of rent.” (Davidson, supra, 138
Cal.App.3d Supp. at p. 14.)
• “We . . . hold that service of the three-day notice by posting and mailing is
effective on the date the notice is posted and mailed.” (Walters, supra, 226
Cal.App.3d Supp. at p. 20.)
• “An unlawful detainer action based on failure to pay rent must be preceded by a
three-day notice to the tenant to pay rent or quit the premises. Failure to state
the exact amount of rent due in the notice is fatal to the subsequent unlawful
detainer action.” (Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603, 606,
fn. 2 [267 Cal.Rptr. 189], internal citations omitted.)
• “[D]efendant admitted in his answer that he ‘ultimately received [the relevant]
notice’ but ‘affirmatively allege[d] that he was not properly and legally served’
with a valid notice. We find that, under the circumstances of this case, the
defendant waived any defect in the challenged service of the notice under
section 1162, subdivision 1.” (Valov, supra, 168 Cal.App.3d at p. 876.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the three-day notice. Because there was no admission of receipt in this
case, service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a three-day notice to pay rent or quit provided in section 1162.
Therefore, the judgment must be reversed.” (Liebovich, supra, 56 Cal.App.4th at
p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the three-day notice may be effected on a residential tenant: . . . . As explained
in Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance
with one of these methods must be shown or the judgment must be reversed.’ ”
(Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
• “In commercial leases the landlord and commercial tenant may lawfully agree to
notice procedures that differ from those provided in the statutory provisions
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governing unlawful detainer.” (Culver Center Partners East #1, L.P., supra, 185
Cal.App.4th at p. 750.)
• “[E]ven if some policy rationale might support such a waiver/forfeiture [by
actual receipt] rule in the residential lease context, there is no basis to apply it in
the commercial context where matters of service and waiver are prescribed in
the lease itself. Nothing in the parties’ lease suggests actual receipt of a notice to
quit results in the waiver or forfeiture of [tenant]’s right to service accomplished
in the manner prescribed. To the contrary, the lease specifically provides, ‘No
covenant, term or condition, or breach’ of the lease ‘shall be deemed waived
except if expressly waived in a written instrument executed by the waiving
party.’ Although [tenant’s agent] acted on the notice to quit by attempting to
deliver the rent check, neither her fortuitous receipt of the notice nor her actions
in response to it constitutes an express waiver of the notice provisions in the
lease.” (Culver Center Partners East #1, L.P., supra, 185 Cal.App.4th at p. 752,
internal citation omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 753,
755–758, 760
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.26–8.68
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.10–6.30, Ch. 8
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 5-G, Eviction
Controls, ¶¶ 5:224.3, 5:277.1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶¶ 7:98.10, 7:327 (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.22 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.11, 5.12
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.11 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.13,
236.13A (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 34:183–34:187 (Thomson Reuters)
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4304. Termination for Violation of Terms of
Lease/Agreement—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] [and [name of
subtenant], a subtenant of [name of defendant],] no longer [has/have] the
right to occupy the property because [name of defendant] has failed to
perform [a] requirement(s) under [his/her/nonbinary pronoun/its] [lease/
rental agreement/sublease]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [owns/leases] the property;
2. That [name of plaintiff] [rented/subleased] the property to [name of
defendant];
3. That under the [lease/rental agreement/sublease], [name of
defendant] agreed [insert required condition(s) that were not
performed];
4. That [name of defendant] failed to perform [that/those]
requirement(s) by [insert description of alleged failure to perform];
5. That [name of plaintiff] properly gave [name of defendant] [and
[name of subtenant]] three days’ written notice to [either [describe
action to correct failure to perform] or] vacate the property; [and]
[6. That [name of defendant] did not [describe action to correct failure
to perform]; and]
[7. That [name of plaintiff] properly gave [name of defendant] [and
[name of subtenant]] three days’ written notice to vacate the
property; and]
8. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
[[Name of defendant]’s failure to perform the requirement(s) of the [lease/
rental agreement/sublease] must not be trivial, but must be a substantial
violation of [an] important obligation(s).]
New August 2007; Revised June 2010, December 2010, June 2011, December 2011,
May 2020, November 2021
Directions for Use
Include the bracketed references to a subtenancy in the opening paragraph, in
element 5, and in element 8 if persons other than the tenant-defendant are in
occupancy of the premises.
If the plaintiff is the landlord or owner, select either “lease” or “rental agreement” in
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the opening paragraph and in element 3, “owns” in element 1, and “rented” in
element 2. Commercial documents are usually called “leases” while residential
documents are often called “rental agreements.” Select the term that is used on the
written document.
If the plaintiff is a tenant seeking to recover possession from a subtenant, select
“sublease” in the opening paragraph and in element 3, “leases” in element 1, and
“subleased” in element 2. (Code Civ. Proc., § 1161(3).)
Defective service may be waived if defendant admits timely receipt of notice. (See
Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the
fact of service is contested, compliance with the statutory requirements must be
shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419,
1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option
for the jury to determine whether or not defective service was waived if there was
actual receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
applies to a residential lease that specifies a method of service has not yet been
decided.
If the lease specifies a time period for notice other than the three-day period,
substitute that time period in element 5.
If the violation of the condition or covenant involves assignment, sublet, or waste,
or if the breach cannot be cured, the landlord is entitled to possession on service of
a three-day notice to quit; no opportunity to cure by performance is required. (Code
Civ. Proc., § 1161(4); Salton Community Services Dist. v. Southard (1967) 256
Cal.App.2d 526, 529 [64 Cal.Rptr. 246].) In such a case, omit the bracketed
language in element 5 and also omit element 6. If the violation involves nuisance or
illegal activity, give CACI No. 4308, Termination for Nuisance or Unlawful
Use—Essential Factual Elements.
The Tenant Protection Act of 2019 and/or local or federal law may impose
additional requirements for the termination of a rental agreement based on breach of
a condition. (See, e.g., Civ. Code, § 1946.2(a) [“just cause” requirement for
termination of certain residential tenancies], (b) [“just cause” defined].) This
instruction should be modified accordingly if applicable. For example, the Tenant
Protection Act of 2019 requires a separate three-day notice to quit after the initial
three-day notice to cure that is expressed in element 5. (See Civ. Code, § 1946.2(c).)
Element 7 applies only to a just cause eviction under the Tenant Protection Act of
2019, which governs certain residential real property tenancies of specified
durations. (See id., subd. (a) [stating occupancy requirement of 12 months of
continuous tenancy, or, if any tenants have been added to the lease, after all tenants
have lived at the property for a year or if the original tenant has lived there for 24
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months or more], subd. (c) [“Before an owner of residential real property issues a
notice to terminate a tenancy for just cause that is a curable lease violation, the
owner shall first give notice of the violation to the tenant with an opportunity to
cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil
Procedure. If the violation is not cured within the time period set forth in the notice,
a three-day notice to quit without an opportunity to cure may thereafter be served to
terminate the tenancy”].)
Include the last paragraph if the tenant alleges that the violation was trivial. (See
Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 81 [199 Cal.Rptr.3d 452].) It is
not settled whether the landlord must prove the violation was substantial or the
tenant must prove triviality as an affirmative defense. (See Superior Motels, Inc. v.
Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1051 [241 Cal.Rptr. 487];
Keating v. Preston (1940) 42 Cal.App.2d 110, 118 [108 P.2d 479].)
See CACI No. 4305, Suffıciency and Service of Notice of Termination for Violation
of Terms of Agreement, for an instruction on proper written notice.
See also CACI No. 312, Substantial Performance.
Sources and Authority
• Unlawful Detainer Based on Failure to Perform Conditions. Code of Civil
Procedure section 1161(3), (4).
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• Dual Notice Requirement for Certain Residential Tenancies. Civil Code section
1946.2(c).
• Conversion of Unlawful Detainer to Ordinary Civil Action If Possession No
Longer at Issue. Civil Code section 1952.3(a).
• “[Code of Civil Procedure section 1161(3)] provides, that where the conditions
or covenants of a lease can be performed, a lessee may within three days after
the service of the notice perform them, and so save a forfeiture of his lease. By
performing, the tenant may defeat the landlord’s claim for possession. Where,
however, the covenants cannot be performed, the law recognizes that it would be
an idle and useless ceremony to demand their performance, and so dispenses
with the demand to do so. And this is all that it does dispense with. It does not
dispense with the demand for the possession of the premises. It requires that in
any event. If the covenants can be performed, the notice is in the alternative,
either to perform them or deliver possession. When the covenants are beyond
performance an alternative notice would be useless, and demand for possession
alone is necessary. Bearing in mind that the object of this statute is to speedily
permit a landlord to obtain possession of his premises where the tenant has
violated the covenants of the lease, the only reasonable interpretation of the
statute is, that before bringing suit he shall take that means which should be
most effectual for the purpose of obtaining possession, which is to demand it. If
upon demand the tenant surrenders possession, the necessity for any summary
proceeding is at an end, and by the demand is accomplished what the law
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otherwise would accord him under the proceeding.” (Schnittger v. Rose (1903)
139 Cal. 656, 662 [73 P. 449].)
• “It is well settled that the notice required under [Code Civ. Proc., § 1161]
subdivisions 2 and 3 (where the condition or covenant assertedly violated is
capable of being performed) must be framed in the alternative, viz., pay the rent
or quit, perform the covenant or quit, and a notice which merely directs the
tenant to quit is insufficient to render such tenant guilty of unlawful detainer
upon his continued possession.” (Hinman v. Wagnon (1959) 172 Cal.App.2d 24,
27 [341 P.2d 749], original italics.)
• “Plaintiff argues, however, that he should be allowed to amend his complaint so
as to bring his action under section 1161, subdivision 4. The notice thereunder
required need not be framed in the alternative. However, plaintiff has at no time,
either by his three days’ notice or in any of his pleadings, suggested that
defendant had assigned the lease or sublet the property, or had committed waste
contrary to the conditions or covenants of the lease, or maintained a nuisance on
the premises, or had used the property for an unlawful purpose. Plaintiff had
three opportunities to state a cause of action; if he was of the belief that facts
existed which brought his case under 1161, subdivision 4, it would have been a
simple matter to allege such facts, but this he did not do.” (Hinman, supra, 172
Cal.App.2d at p. 29.)
• “The law sensibly recognizes that although every instance of noncompliance
with a contract’s terms constitutes a breach, not every breach justifies treating
the contract as terminated. Following the lead of the Restatements of Contracts,
California courts allow termination only if the breach can be classified as
‘material,’ ‘substantial,’ or ‘total.’ ” (Superior Motels, Inc., supra, 195
Cal.App.3d at p. 1051, internal citations omitted.)
• “ ‘[A] lease may be terminated only for a substantial breach thereof, and not for
a mere technical or trivial violation.’ This materiality limitation even extends to
leases which contain clauses purporting to dispense with the materiality
limitation.” (Boston LLC, supra, 245 Cal.App.4th at p. 81, internal citation
omitted.)
• “ ‘Normally the question of whether a breach of an obligation is a material
breach . . . is a question of fact,’ however ‘ “if reasonable minds cannot differ
on the issue of materiality, the issue may be resolved as a matter of law.” ’ ”
(Boston LLC, supra, 245 Cal.App.4th at p. 87.)
• “As to the substantiality of the violation, the evidence shows that the violation
was wilful. Therefore, the court will not measure the extent of the violation.”
(Hignell v. Gebala (1949) 90 Cal.App.2d 61, 66 [202 P.2d 378].)
• “Where a covenant in a lease has been breached and the breach cannot be cured,
a demand for performance is not a condition precedent to an unlawful detainer
action.” (Salton Community Services Dist., supra, 256 Cal.App.2d at p. 529.)
• “If the tenant gives up possession of the property after the commencement of an
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unlawful detainer proceeding, the action becomes an ordinary one for damages.”
(Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d
654, 658 [196 Cal.Rptr. 174].)
• “Proper service on the lessee of a valid three-day notice to pay rent or quit is an
essential prerequisite to a judgment declaring a lessor’s right to possession under
section 1161, subdivision 2. A lessor must allege and prove proper service of the
requisite notice. Absent evidence the requisite notice was properly served
pursuant to section 1162, no judgment for possession can be obtained.”
(Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513 [65 Cal.Rptr.2d
457], internal citations omitted.)
• “Section 1162 does not authorize service of a three-day notice to pay rent or quit
by mail delivery alone, certified or otherwise. It provides for service by: personal
delivery; leaving a copy with a person of suitable age and discretion at the
renter’s residence or usual place of business and sending a copy through the
mail to the tenant’s residence; or posting and delivery of a copy to a person
there residing, if one can be found, and sending a copy through the mail. Strict
compliance with the statute is required.” (Liebovich, supra, 56 Cal.App.4th at p.
516, original italics, internal citations omitted.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the three-day notice. Because there was no admission of receipt in this
case, service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a three-day notice to pay rent or quit provided in [Code of Civil
Procedure] section 1162. Therefore, the judgment must be reversed.” (Liebovich,
supra, 56 Cal.App.4th at p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the three-day notice may be effected on a residential tenant: . . . . As explained
in Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance
with one of these methods must be shown or the judgment must be reversed.’ ”
(Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 753, 759
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.50–8.54
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.38–6.49
Friedman et al., California Practice Guide: Landlord-Tenant, Ch.12-G, Termination
of Section 8 Tenancies, ¶ 12:200 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch.7-C, Bases For
Terminating Tenancy, ¶ 7:93 et seq. (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
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7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.23, 210.24 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.07
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.11, 236.20
(Matthew Bender)
Miller & Starr California Real Estate 4th, § 34.182 (Thomson Reuters)
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4305. Sufficiency and Service of Notice of Termination for
Violation of Terms of Agreement
[Name of plaintiff] contends that [he/she/nonbinary pronoun/it] properly
gave [name of defendant] three days’ notice to [either comply with the
requirements of the [lease/rental agreement/sublease] or] vacate the
property. To prove that the notice contained the required information
and was properly given, [name of plaintiff] must prove all of the
following:
1. That the notice informed [name of defendant] in writing that [he/
she/nonbinary pronoun/it] must, within three days, [either comply
with the requirements of the [lease/rental agreement/sublease] or]
vacate the property;
2. That the notice described how [name of defendant] failed to
comply with the requirements of the [lease/rental
agreement/sublease] [and how to correct the failure];
3. That the notice was given to [name of defendant] at least three
days before [insert date on which action was filed].
[The three-day notice period excludes Saturdays, Sundays, and judicial
holidays, but otherwise begins on the day after the notice to correct the
failure or vacate the property was given to [name of defendant].]
Notice was properly given if [select one or more of the following manners
of service:]
3. [the notice was delivered to [name of defendant] personally[./; or]]
3. [[name of defendant] was not at [home or work/the commercial
rental property], and the notice was left with a responsible person
at [[name of defendant]’s home or place of work/the commercial
property], and a copy was also mailed in an envelope addressed
to [name of defendant] at [[his/her/nonbinary pronoun] residence/the
commercial property]. In this case, notice is considered given on
the date the second notice was [received by [name of defendant]/
placed in the mail][./; or]]
3. [for a residential tenancy:
3. [name of defendant]’s place of residence and work could not be
discovered, or a responsible person could not be found at either
place, and (1) the notice was posted on the property in a place
where it would easily be noticed, (2) a copy was given to a person
living there if someone could be found, and (3) a copy was also
mailed to the address of the rented property in an envelope
addressed to [name of defendant]. In this case, notice is considered
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given on the date the second notice was [received by [name of
defendant]/placed in the mail].]
3. [or for a commercial tenancy:
3. at the time of attempted service, a responsible person could not
be found at the commercial rental property through the exercise
of reasonable diligence, and (1) the notice was posted on the
property in a place where it would easily be noticed, and (2) a
copy was also mailed to the address of the commercial property
in an envelope addressed to [name of defendant]. In this case,
notice is considered given on the date the second notice was
[received by [name of defendant]/placed in the mail].]
New August 2007; Revised December 2010, June 2011, December 2011, November
2019, May 2020
Directions for Use
If the violation of the condition or covenant involves assignment, subletting, or
waste, or if the breach cannot be cured, the landlord is entitled to possession on
service of a three-day notice to quit; no opportunity to cure by performance is
required. (Code Civ. Proc., § 1161(4); Salton Community Services Dist. v. Southard
(1967) 256 Cal.App.2d 526, 529 [64 Cal.Rptr. 246].) In such a case, omit the
bracketed language in the first paragraph and in elements 1 and 2. If the violation
involves nuisance or illegal activity, give CACI No. 4309, Suffıciency and Service of
Notice of Termination for Nuisance or Unlawful Use.
If the plaintiff is the landlord or owner, select either “lease” or “rental agreement” in
the optional language in the opening paragraph and in elements 1 and 2.
Commercial documents are usually called “leases” while residential documents are
often called “rental agreements.” Select the term that is used on the written
document. If the plaintiff is a tenant seeking to recover possession from a subtenant,
select “sublease.” (Code Civ. Proc., § 1161(3).)
Select the manner of service used: personal service, substituted service by leaving
the notice at the defendant’s home or place of work or at the commercial rental
property, or substituted service by posting on the property. (See Code Civ. Proc.,
§ 1162.)
There is a conflict in the case law with respect to when the three-day period begins
if substituted service is used. Compare Davidson v. Quinn (1982) 138 Cal.App.3d
Supp. 9, 14 [188 Cal.Rptr. 421] [tenant must be given three days to pay, so period
does not begin until actual notice is received] with Walters v. Meyers (1990) 226
Cal.App.3d Supp. 15, 19–20 [277 Cal.Rptr. 316] [notice is effective when posted
and mailed]. This conflict is accounted for in the second, third, and fourth bracketed
options for the manner of service.
Read the paragraph that follows the elements if any of the three days of the notice
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period fell on a Saturday, Sunday, or judicial holiday. (See Code Civ. Proc.,
§ 1161(3).) Judicial holidays are shown on the judicial branch website, www.courts.
ca.gov/holidays.htm.
If a lease specifies a time period for giving notice other than the three-day period,
substitute that time period for three days throughout the instruction, provided that it
is not less than three days.
Defective service may be waived if defendant admits timely receipt of notice. (See
Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the
fact of service is contested, compliance with the statutory requirements must be
shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419,
1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option
for the jury to determine whether or not defective service was waived if there was
actual receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
applies to a residential lease that specifies a method of service has not yet been
decided.
The Tenant Protection Act of 2019 and/or local ordinances may impose additional
notice requirements for the termination of a rental agreement. (See, e.g., Civ. Code,
§ 1946.2(a) [“just cause” requirement for termination of certain residential
tenancies], (b) [“just cause” defined].) This instruction should be modified
accordingly if applicable.
Sources and Authority
• Unlawful Detainer Based on Failure to Perform Conditions. Code of Civil
Procedure section 1161(3), (4).
• Manner of Service of Notice. Code of Civil Procedure section 1162.
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• “[T]he service and notice provisions in the unlawful detainer statutes and [Code
of Civil Procedure] section 1013 are mutually exclusive, and thus, section 1013
does not extend the notice periods that are a prerequisite to filing an unlawful
detainer action.” (Losornio v. Motta (1998) 67 Cal.App.4th 110, 112 [78
Cal.Rptr.2d 799].)
• “Section 1162 does not authorize service of a three-day notice to pay rent or quit
by mail delivery alone, certified or otherwise. It provides for service by: personal
delivery; leaving a copy with a person of suitable age and discretion at the
renter’s residence or usual place of business and sending a copy through the mail
to the tenant’s residence; or posting and delivery of a copy to a person there
residing, if one can be found, and sending a copy through the mail. Strict
compliance with the statute is required.” (Liebovich v. Shahrokhkhany (1997) 56
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Cal.App.4th 511, 516 [65 Cal.Rptr.2d 457], original italics, internal citation
omitted.)
• “We . . . hold that service made in accordance with section 1162, subdivision 3,
as applied to section 1161, subdivision 2, must be effected in such a manner as
will give a tenant the three days of written notice required by the Legislature in
which he may cure his default in the payment of rent.” (Davidson, supra, 138
Cal.App.3d Supp. at p. 14.)
• “We . . . hold that service of the three-day notice by posting and mailing is
effective on the date the notice is posted and mailed.” (Walters, supra, 226
Cal.App.3d Supp. at p. 20.)
• “It is well settled that the notice required under [Code Civ. Proc., § 1161]
subdivisions 2 and 3 (where the condition or covenant assertedly violated is
capable of being performed) must be framed in the alternative, viz., pay the rent
or quit, perform the covenant or quit, and a notice which merely directs the
tenant to quit is insufficient to render such tenant guilty of unlawful detainer
upon his continued possession.” (Hinman v. Wagnon (1959) 172 Cal.App.2d 24,
27 [341 P.2d 749], original italics.)
• “Plaintiff argues, however, that he should be allowed to amend his complaint so
as to bring his action under section 1161, subdivision 4. The notice thereunder
required need not be framed in the alternative. However, plaintiff has at no time,
either by his three days’ notice or in any of his pleadings, suggested that
defendant had assigned the lease or sublet the property, or had committed waste
contrary to the conditions or covenants of the lease, or maintained a nuisance on
the premises, or had used the property for an unlawful purpose. Plaintiff had
three opportunities to state a cause of action; if he was of the belief that facts
existed which brought his case under 1161, subdivision 4, it would have been a
simple matter to allege such facts, but this he did not do.” (Hinman, supra, 172
Cal.App.2d at p. 29.)
• “Where a covenant in a lease has been breached and the breach cannot be cured,
a demand for performance is not a condition precedent to an unlawful detainer
action.” (Salton Community Services Dist., supra, 256 Cal.App.2d at p. 529.)
• “[D]efendant admitted in his answer that he ‘ultimately received [the relevant]
notice’ but ‘affirmatively allege[d] that he was not properly and legally served’
with a valid notice. We find that, under the circumstances of this case, the
defendant waived any defect in the challenged service of the notice under
section 1162, subdivision 1.” (Valov, supra, 168 Cal.App.3d at p. 876.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the three-day notice. Because there was no admission of receipt in this
case, service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a three-day notice to pay rent or quit provided in section 1162.
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Therefore, the judgment must be reversed.” (Liebovich, supra, 56 Cal.App.4th at
p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the three-day notice may be effected on a residential tenant: . . . . As explained
in Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance
with one of these methods must be shown or the judgment must be reversed.’”
(Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
• “In commercial leases the landlord and commercial tenant may lawfully agree to
notice procedures that differ from those provided in the statutory provisions
governing unlawful detainer.” (Culver Center Partners East #1, L.P., supra, 185
Cal.App.4th at p.750.)
• “[E]ven if some policy rationale might support such a waiver/forfeiture [by
actual receipt] rule in the residential lease context, there is no basis to apply it in
the commercial context where matters of service and waiver are prescribed in
the lease itself. Nothing in the parties’ lease suggests actual receipt of a notice to
quit results in the waiver or forfeiture of [tenant]’s right to service accomplished
in the manner prescribed. To the contrary, the lease specifically provides, ‘No
covenant, term or condition, or breach’ of the lease ‘shall be deemed waived
except if expressly waived in a written instrument executed by the waiving
party.’ Although [tenant’s agent] acted on the notice to quit by attempting to
deliver the rent check, neither her fortuitous receipt of the notice nor her actions
in response to it constitutes an express waiver of the notice provisions in the
lease.” (Culver Center Partners East #1, L.P., supra, 185 Cal.App.4th at p. 752,
internal citation omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 753, 759,
760
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.46 et seq., 8.62 et
seq.
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.10–6.16,
6.25–6.29, 6.38–6.49, Ch. 8
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.23, 210.24 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.11, 5.12
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.11 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.11, 236.12
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(Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 34:182, 34:183, 34:187 (Thomson
Reuters)
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4306. Termination of Month-to-Month Tenancy—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] [and [name of
subtenant], a subtenant of [name of defendant],] no longer [has/have] the
right to occupy the property because the tenancy has ended. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owns/leases] the property;
2. That [name of plaintiff] [rented/subleased] the property to [name of
defendant] under a month-to-month [lease/rental
agreement/sublease];
3. That [name of plaintiff] gave [name of defendant] proper [30/60]
days’ written notice that the tenancy was ending; and
4. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
New August 2007; Revised June 2011, December 2011, May 2020
Directions for Use
Include the bracketed references to a subtenancy in the opening paragraph and in
element 4 if persons other than the tenant-defendant are in occupancy of the
premises.
If the plaintiff is the landlord or owner, select “owns” in element 1 and “rented” and
either “lease” or “rental agreement” in element 2. Commercial documents are
usually called “leases” while residential documents are often called “rental
agreements.” Select the term that is used on the written document.
If the plaintiff is a tenant seeking to recover possession from a subtenant, select
“leases” in element 1 and “subleased” and “sublease” in element 2. (Code Civ.
Proc., § 1161(3).)
In element 3, select the applicable number of days’ notice required by statute. Thirty
days is sufficient for commercial tenancies, residential tenancies of less than a year’s
duration, and certain transfers of the ownership interest to a bona fide purchaser. For
residential tenancies of a year or more’s duration, 60 days’ notice is generally
required. (Civ. Code, §§ 1946, 1946.1(b)–(d).) The Tenant Protection Act of 2019
may impose additional requirements for the termination of a residential tenancy.
(Civ. Code, § 1946.2(a) [“just cause” requirement for termination of certain
residential tenancies], (b) [“just cause” defined].) This instruction should be
modified accordingly if applicable.
Defective service may be waived if defendant admits timely receipt of notice. (See
Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the
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fact of service is contested, compliance with the statutory requirements must be
shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419,
1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option
for the jury to determine whether or not defective service was waived if there was
actual receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
applies to a residential lease that specifies a method of service has not yet been
decided.
Do not give this instruction to terminate a tenancy if the tenant is receiving federal
financial assistance through the Section 8 program. (See Wasatch Property
Management v. Degrate (2005) 35 Cal.4th 1111, 1115 [29 Cal.Rptr.3d 262, 112 P.3d
647]; Civ. Code, § 1954.535 (90 days’ notice required).) Specific grounds for
terminating a federally subsidized low-income housing tenancy are required and
must be set forth in the notice. (See, e.g., 24 C.F.R. § 982.310.)
See CACI No. 4307, Suffıciency and Service of Notice of Termination of Month-to-
Month Tenancy, for an instruction on proper advanced written notice.
Sources and Authority
• Unlawful Detainer Based on Holdover After Expiration of Term. Code of Civil
Procedure section 1161(1).
• Automatic Renewal Absent Notice of Termination on Expiration of Term. Civil
Code section 1946.
• Time and Manner of Giving Notice of Termination. Civil Code section 1946.1.
• Presumption That Term Is Based on Period for Which Rent Is Paid. Civil Code
section 1944.
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• Conversion of Unlawful Detainer to Ordinary Civil Action if Possession Not at
Issue. Civil Code section 1952.3(a).
• “ ‘In order that such an action may be maintained the conventional relation of
landlord and tenant must be shown to exist. In other words, the action is limited
to those cases in which the tenant is estopped to deny the landlord’s title.’ ”
(Fredericksen v. McCosker (1956) 143 Cal.App.2d 114, 116 [299 P.2d 908],
internal citations omitted.)
• “If the tenant gives up possession of the property after the commencement of an
unlawful detainer proceeding, the action becomes an ordinary one for damages.”
(Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d
654, 658 [196 Cal.Rptr. 174].)
• “The Act provides that as a prerequisite to filing an unlawful detainer action
based on a terminated month-to-month tenancy, the landlord must serve the
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tenant with a 30-day written notice of termination.” (Losornio v. Motta (1998)
67 Cal.App.4th 110, 113 [78 Cal.Rptr.2d 799], internal citations omitted.)
• “Proper service on the lessee of a valid . . . notice . . . is an essential
prerequisite to a judgment declaring a lessor’s right to possession under section
1161, subdivision 2. A lessor must allege and prove proper service of the
requisite notice. Absent evidence the requisite notice was properly served
pursuant to section 1162, no judgment for possession can be obtained.”
(Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513 [65 Cal.Rptr.2d
457], internal citations omitted.)
• “Section 1162 does not authorize service of a . . . notice . . . by mail delivery
alone, certified or otherwise. It provides for service by: personal delivery;
leaving a copy with a person of suitable age and discretion at the renter’s
residence or usual place of business and sending a copy through the mail to the
tenant’s residence; or posting and delivery of a copy to a person there residing,
if one can be found, and sending a copy through the mail. Strict compliance
with the statute is required.” (Liebovich, supra, 56 Cal.App.4th at p. 516,
original italics, internal citations omitted.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the . . . notice. Because there was no admission of receipt in this case,
service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a . . . notice . . . provided in [Code of Civil Procedure] section 1162.
Therefore, the judgment must be reversed.” (Liebovich, supra, 56 Cal.App.4th at
p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the . . . notice may be effected on a residential tenant: . . . . As explained in
Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance with
one of these methods must be shown or the judgment must be reversed.’ ” (Palm
Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 707 et seq.
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 8-B, Unlawful
Detainer Complaint, ¶ 8:85 (The Rutter Group)
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.69–8.80
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.3, 7.5, 7.11
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.27 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
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Unlawful Detainer, 5.07
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.11, 236.40
(Matthew Bender)
Miller & Starr California Real Estate 4th, § 34:147 (Thomson Reuters)
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4307. Sufficiency and Service of Notice of Termination of Month-
to-Month Tenancy
[Name of plaintiff] contends that [he/she/nonbinary pronoun/it] properly
gave [name of defendant] written notice that the tenancy was ending. To
prove that the notice contained the required information and was
properly given, [name of plaintiff] must prove all of the following:
1. That the notice informed [name of defendant] in writing that the
tenancy would end on a date at least [30/60] days after notice was
given to [him/her/nonbinary pronoun/it];
2. That the notice was given to [name of defendant] at least [30/60]
days before the date that the tenancy was to end; and
3. That the notice was given to [name of defendant] at least [30/60]
days before [insert date on which action was filed];
Notice was properly given if [select one or more of the following manners
of service:]
3. [the notice was delivered to [name of defendant] personally[./; or]]
3. [the notice was sent by certified or registered mail in an envelope
addressed to [name of defendant], in which case notice is
considered given on the date the notice was placed in the mail[./;
or]]
3. [[name of defendant] was not at [home or work/the commercial
rental property], and the notice was left with a responsible person
at [[name of defendant]’s home or place of work/the commercial
property], and a copy was also mailed in an envelope addressed
to [name of defendant] at [[his/her/nonbinary pronoun] residence/the
commercial property]. In this case, notice is considered given on
the date the second notice was placed in the mail[./; or]]
3. [for a residential tenancy:
3. [name of defendant]’s place of residence and work could not be
discovered, or a responsible person could not be found at either
place, and (1) the notice was posted on the property in a place
where it would easily be noticed, (2) a copy was given to a person
living there if someone could be found, and (3) a copy was also
mailed to the property in an envelope addressed to [name of
defendant]. In this case, notice is considered given on the date the
second notice was placed in the mail.]
3. [or for a commercial tenancy:
3. at the time of attempted service, a responsible person could not
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be found at the commercial rental property through the exercise
of reasonable diligence, and (1) the notice was posted on the
property in a place where it would easily be noticed, and (2) a
copy was also mailed to the address of the commercial property
in an envelope addressed to [name of defendant]. In this case,
notice is considered given on the date the second notice was
placed in the mail.]
[The [30/60]-day notice period begins on the day after the notice was
given to [name of defendant]. If the last day of the notice period falls on a
Saturday, Sunday, or holiday, [name of defendant]’s time to vacate the
property is extended to include the first day after the Saturday, Sunday,
or holiday that is not also a Saturday, Sunday, or holiday.]
New August 2007; Revised December 2010, June 2011, December 2011, May 2020
Directions for Use
Select the applicable number of days’ notice required by statute. Thirty days is
sufficient for commercial tenancies, residential tenancies of less than a year’s
duration, and certain transfers of the ownership interest to a bona fide purchaser. For
residential tenancies of a year or more’s duration, 60 days is generally required.
(Civ. Code, §§ 1946, 1946.1(b)–(d).)
If 30 days’ notice is sufficient and the lease provided for a notice period other than
the statutory 30-day period (but not less than 7), insert that number instead of “30”
or “60” throughout the instruction. (Civ. Code, § 1946.)
Select all manners of service used, including personal service, certified or registered
mail, substituted service by leaving the notice at the defendant’s home or place of
work or at the rental property, and substituted service by posting on the property.
(See Civ. Code, §§ 1946, 1946.1(f); Code Civ. Proc., § 1162.)
Read the next-to-last paragraph if the last day of the notice period fell on a
Saturday, Sunday, or holiday.
Defective service may be waived if defendant admits timely receipt of notice. (See
Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the
fact of service is contested, compliance with the statutory requirements must be
shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419,
1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option
for the jury to determine whether or not defective service was waived if there was
actual receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
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applies to a residential lease that specifies a method of service has not yet been
decided.
The Tenant Protection Act of 2019 and/or local ordinances may impose additional
requirements for the termination of a rental agreement. (See, e.g., Civ. Code,
§ 1946.2(a) [“just cause” requirement for termination of certain residential
tenancies], (b) [“just cause” defined].) This instruction should be modified
accordingly if applicable.
Sources and Authority
• Automatic Renewal of Tenancy at End of Term. Civil Code section 1946.
• Time and Manner of Giving Notice of Termination. Civil Code section 1946.1.
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• Manner of Service of Notice. Code of Civil Procedure section 1162.
• “[T]he service and notice provisions in the unlawful detainer statutes and [Code
of Civil Procedure] section 1013 are mutually exclusive, and thus, section 1013
does not extend the notice periods that are a prerequisite to filing an unlawful
detainer action.” (Losornio v. Motta (1998) 67 Cal.App.4th 110, 112 [78
Cal.Rptr.2d 799].)
• “Section 1162 does not authorize service of a . . . notice . . . by mail delivery
alone, certified or otherwise. It provides for service by: personal delivery;
leaving a copy with a person of suitable age and discretion at the renter’s
residence or usual place of business and sending a copy through the mail to the
tenant’s residence; or posting and delivery of a copy to a person there residing,
if one can be found, and sending a copy through the mail. Strict compliance
with the statute is required.” (Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th
511, 516 [65 Cal.Rptr.2d 457], original italics, internal citation omitted.)
• “[D]efendant admitted in his answer that he ‘ultimately received [the relevant]
notice’ but ‘affirmatively allege[d] that he was not properly and legally served’
with a valid notice. We find that, under the circumstances of this case, the
defendant waived any defect in the challenged service of the notice under
section 1162, subdivision 1.” (Valov, supra, 168 Cal.App.3d at p. 876.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the . . . notice. Because there was no admission of receipt in this case,
service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a . . . notice . . . provided in section 1162. Therefore, the judgment
must be reversed.” (Liebovich, supra, 56 Cal.App.4th at p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the . . . notice may be effected on a residential tenant: . . . . As explained in
Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance with
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one of these methods must be shown or the judgment must be reversed.’ ” (Palm
Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
• “In commercial leases the landlord and commercial tenant may lawfully agree to
notice procedures that differ from those provided in the statutory provisions
governing unlawful detainer.” (Culver Center Partners East #1, L.P., supra, 185
Cal.App.4th at p.750.)
• “[E]ven if some policy rationale might support such a waiver/forfeiture [by
actual receipt] rule in the residential lease context, there is no basis to apply it in
the commercial context where matters of service and waiver are prescribed in
the lease itself. Nothing in the parties’ lease suggests actual receipt of a notice to
quit results in the waiver or forfeiture of [tenant]’s right to service accomplished
in the manner prescribed. To the contrary, the lease specifically provides, ‘No
covenant, term or condition, or breach’ of the lease ‘shall be deemed waived
except if expressly waived in a written instrument executed by the waiving
party.’ Although [tenant’s agent] acted on the notice to quit by attempting to
deliver the rent check, neither her fortuitous receipt of the notice nor her actions
in response to it constitutes an express waiver of the notice provisions in the
lease.” (Culver Center Partners East #1, L.P., supra, 185 Cal.App.4th at p. 752,
internal citation omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 707 et
seq., 760
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 8-B, Unlawful
Detainer Complaint, ¶¶ 8:68, 8:69 (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶¶ 7:119, 7:190 et seq. (The Rutter Group)
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.69–8.80
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) § 5.3, Ch. 7
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.27 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.11, 5.12
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.11 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.10–236.12
(Matthew Bender)
Miller & Starr California Real Estate 4th, §§ 34:175, 34:181, 34:182 (Thomson
Reuters)
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4308. Termination for Nuisance or Unlawful Use—Essential
Factual Elements (Code Civ. Proc., § 1161(4))
[Name of plaintiff] claims that [name of defendant] [and [name of
subtenant], a subtenant of [name of defendant],] no longer [has/have] the
right to occupy the property because [name of defendant] has [created a
nuisance on the property/ [or] used the property for an illegal purpose].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owns/leases] the property;
2. That [name of plaintiff] [rented/subleased] the property to [name of
defendant];
3. That [name of defendant] [include one or both of the following:]
3. created a nuisance on the property by [specify conduct constituting
nuisance];
3. [or]
3. used the property for an illegal purpose by [specify illegal
activity];
4. That [name of plaintiff] properly gave [name of defendant] [and
[name of subtenant]] three days’ written notice to vacate the
property; and
5. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
[A “nuisance” is anything that [[is harmful to health]/ [or] [is indecent or
offensive to the senses of an ordinary person with normal sensibilities]/
[or] [is an obstruction to the free use of property, so as to interfere with
the comfortable enjoyment of life or property]/ [or] [unlawfully obstructs
the free passage or use, in the customary manner, of any navigable lake,
or river, bay, stream, canal, or basin, or any public park, square, street,
or highway]/[or] [is [a/an] [fire hazard/specify other potentially dangerous
condition] to the property]].]
New December 2010; Revised June 2011, December 2011, May 2020, November
2020, May 2021
Directions for Use
Include the bracketed references to a subtenancy in the opening paragraph and in
elements 4 and 5 if persons other than the tenant-defendant are in occupancy of the
premises.
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If the plaintiff is the landlord or owner, select “owns” in element 1, and “rented” in
element 2.
If the plaintiff is a tenant seeking to recover possession from a subtenant, include
the bracketed language on subtenancy in the opening paragraph and in element 4,
“leases” in element 1, and “subleased” in element 2. (Code Civ. Proc., § 1161(3).)
Include the optional last paragraph defining a nuisance if there is a factual dispute
and the jury will determine whether the defendant’s conduct constituted a nuisance.
Omit any bracketed definitional options that are not at issue in the case. For
additional authorities on nuisance, see the Sources and Authority to CACI No. 2020,
Public Nuisance—Essential Factual Elements, and CACI No. 2021, Private
Nuisance—Essential Factual Elements. Certain conduct or statutory violations that
constitute or create a rebuttable presumption of a nuisance are set forth in Code of
Civil Procedure section 1161(4). If applicable, insert the appropriate ground in
element 3. (See also Health & Saf. Code, § 17922 [adopting various uniform
housing and building codes].)
If the grounds for termination involve assigning, subletting, or committing waste in
violation of a condition or covenant of the lease, give CACI No. 4304, Termination
for Violation of Terms of Lease/Agreement—Essential Factual Elements. (See Code
Civ. Proc., § 1161(4).)
Defective service may be waived if defendant admits timely receipt of notice. (See
Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the
fact of service is contested, compliance with the statutory requirements must be
shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419,
1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option
for the jury to determine whether or not defective service was waived if there was
actual receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
applies to a residential lease that specifies a method of service has not yet been
decided.
If the lease specifies a time period for notice other than the three-day period,
substitute that time period in element 4.
For nuisance or unlawful use, the landlord is entitled to possession on service of a
three-day notice to quit; no opportunity to cure by performance is required. (Code
Civ. Proc., § 1161(4).)
The Tenant Protection Act of 2019, local law, and/or federal law may impose
additional requirements for the termination of a rental agreement based on nuisance
or illegal activity. (See Civ. Code, § 1946.2(a) [“just cause” requirement for
termination of certain residential tenancies], (b) [“just cause” defined], (b)(1)(C)
[nuisance is “just cause”], (b)(1)(I) [unlawful purpose is “just cause”].) For example,
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if the property in question is subject to a local rent control or rent stabilization
ordinance, the ordinance may provide further definitions or conditions under which a
landlord has just cause to evict a tenant for nuisance or unlawful use of the
property. This instruction should be modified accordingly if applicable.
See CACI No. 4309, Suffıciency and Service of Notice of Termination for Nuisance
or Unlawful Use, for an instruction on proper written notice.
See also CACI No. 312, Substantial Performance.
Sources and Authority
• Unlawful Detainer Based on Tenant Conduct. Code of Civil Procedure section
1161(4).
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• “Nuisance” Defined. Civil Code section 3479.
• “Plaintiff argues, however, that he should be allowed to amend his complaint so
as to bring his action under section 1161, subdivision 4. The notice thereunder
required need not be framed in the alternative. However, plaintiff has at no time,
either by his three days’ notice or in any of his pleadings, suggested that
defendant had assigned the lease or sublet the property, or had committed waste
contrary to the conditions or covenants of the lease, or maintained a nuisance on
the premises, or had used the property for an unlawful purpose. Plaintiff had
three opportunities to state a cause of action; if he was of the belief that facts
existed which brought his case under 1161, subdivision 4, it would have been a
simple matter to allege such facts, but this he did not do.” (Hinman v. Wagnon
(1959) 172 Cal.App.2d 24, 29 [341 P.2d 749].)
• “The basic concept underlying the law of nuisance is that one should use one’s
own property so as not to injure the property of another. An action for private
nuisance is designed to redress a substantial and unreasonable invasion of one’s
interest in the free use and enjoyment of one’s property. ‘ “The invasion may be
intentional and unreasonable. It may be unintentional but caused by negligent or
reckless conduct; or it may result from an abnormally dangerous activity for
which there is strict liability. On any of these bases the defendant may be liable.
On the other hand, the invasion may be intentional but reasonable; or it may be
entirely accidental and not fall within any of the categories mentioned above.” ’
Determination whether something, not deemed a nuisance per se, is a nuisance
in fact in a particular instance, is a question for the trier of fact.” (Hellman v. La
Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230–1231 [8
Cal.Rptr.2d 293], internal citations omitted.)
• “Proper service on the lessee of a valid three-day notice to pay rent or quit is an
essential prerequisite to a judgment declaring a lessor’s right to possession under
section 1161, subdivision 2. A lessor must allege and prove proper service of the
requisite notice. Absent evidence the requisite notice was properly served
pursuant to section 1162, no judgment for possession can be obtained.”
(Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513 [65 Cal.Rptr.2d
457], internal citations omitted.)
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• “Section 1162 does not authorize service of a three-day notice to pay rent or quit
by mail delivery alone, certified or otherwise. It provides for service by: personal
delivery; leaving a copy with a person of suitable age and discretion at the
renter’s residence or usual place of business and sending a copy through the
mail to the tenant’s residence; or posting and delivery of a copy to a person
there residing, if one can be found, and sending a copy through the mail. Strict
compliance with the statute is required.” (Liebovich, supra, 56 Cal.App.4th at p.
516, original italics, internal citations omitted.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the three-day notice. Because there was no admission of receipt in this
case, service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a three-day notice to pay rent or quit provided in [Code of Civil
Procedure] section 1162. Therefore, the judgment must be reversed.” (Liebovich,
supra, 56 Cal.App.4th at p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the three-day notice may be effected on a residential tenant: . . . . As explained
in Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance
with one of these methods must be shown or the judgment must be reversed.’ ”
(Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 701, 759
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.55, 8.58, 8.59
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 6.46, 6.48, 6.49
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶ 7:136 et seq. (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 200, Termination of Tenancies,
§ 200.38 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 4,
Termination of Tenancy, 4.23
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.11
(Matthew Bender)
Miller & Starr California Real Estate 4th, § 34:181 (Thomson Reuters)
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4309. Sufficiency and Service of Notice of Termination for
Nuisance or Unlawful Use
[Name of plaintiff] contends that [he/she/nonbinary pronoun/it] properly
gave [name of defendant] three days’ notice to vacate the property. To
prove that the notice contained the required information and was
properly given, [name of plaintiff] must prove all of the following:
1. That the notice informed [name of defendant] in writing that [he/
she/nonbinary pronoun/it] must vacate the property within three
days;
2. That the notice described how [name of defendant] [created a
nuisance on the property/ [or] used the property for an illegal
purpose]; and
3. That the notice was given to [name of defendant] at least three
days before [insert date on which action was filed].
Notice was properly given if [select one or more of the following manners
of service:]
3. [the notice was delivered to [name of defendant] personally[./; or]]
3. [[name of defendant] was not at [home or work/the commercial
rental property], and the notice was left with a responsible person
at [[name of defendant]’s residence or place of work/the
commercial property], and a copy was also mailed in an envelope
addressed to [name of defendant] at [[his/her/nonbinary pronoun]
residence/the commercial property]. In this case, notice is
considered given on the date the second notice was [received by
[name of defendant]/placed in the mail][./; or]]
3. [for a residential tenancy:
3. [name of defendant]’s place of residence and work could not be
discovered, or a responsible person could not be found at either
place, and (1) the notice was posted on the property in a place
where it would easily be noticed, (2) a copy was given to a person
living there if someone could be found, and (3) a copy was also
mailed to the address of the rented property in an envelope
addressed to [name of defendant]. In this case, notice is considered
given on the date the second notice was [received by [name of
defendant]/placed in the mail].]
3. [or for a commercial tenancy:
3. at the time of attempted service, a responsible person could not
be found at the commercial rental property through the exercise
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of reasonable diligence, and (1) the notice was posted on the
property in a place where it would easily be noticed, and (2) a
copy was also mailed to the address of the commercial property
in an envelope addressed to [name of defendant]. In this case,
notice is considered given on the date the second notice was
[received by [name of defendant]/placed in the mail].]
[The three-day notice period begins on the day after the notice was given
to [name of defendant]. If the last day of the notice period falls on a
Saturday, Sunday, or holiday, [name of defendant]’s time to correct the
failure or to vacate the property is extended to include the first day after
the Saturday, Sunday, or holiday that is not also a Saturday, Sunday, or
holiday.]
New December 2010; Revised June 2011, December 2011, May 2020
Directions for Use
Select the manner of service used: personal service, substituted service by leaving
the notice at the defendant’s home or place of work or at the commercial property,
or substituted service by posting on the property. (See Code Civ. Proc., § 1162.)
There is a conflict in the case law with respect to when the three-day period begins
if substituted service is used. Compare Davidson v. Quinn (1982) 138 Cal.App.3d
Supp. 9, 14 [188 Cal.Rptr. 421] [tenant must be given three days to pay, so period
does not begin until actual notice is received] with Walters v. Meyers (1990) 226
Cal.App.3d Supp. 15, 19–20 [277 Cal.Rptr. 316] [notice is effective when posted
and mailed]. This conflict is accounted for in the second, third, and fourth bracketed
options for the manner of service.
Read the next-to-last paragraph if the last day of the notice period fell on a
Saturday, Sunday, or holiday.
If a lease specifies a time period for giving notice other than the three-day period,
substitute that time period for three days throughout the instruction, provided that it
is not less than three days.
Defective service may be waived if defendant admits timely receipt of notice. (See
Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the
fact of service is contested, compliance with the statutory requirements must be
shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419,
1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option
for the jury to determine whether or not defective service was waived if there was
actual receipt.
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
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applies to a residential lease that specifies a method of service has not yet been
decided.
The Tenant Protection Act of 2019 and/or local ordinances may impose additional
notice requirements for the termination of a rental agreement. (See, e.g., Civ. Code,
§ 1946.2(a) [“just cause” requirement for termination of certain residential
tenancies], (b) [“just cause” defined].) This instruction should be modified
accordingly if applicable.
Sources and Authority
• Unlawful Detainer Based on Tenant Conduct. Code of Civil Procedure section
1161(4).
• Manner of Service of Notice. Code of Civil Procedure section 1162.
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• “[T]he service and notice provisions in the unlawful detainer statutes and [Code
of Civil Procedure] section 1013 are mutually exclusive, and thus, section 1013
does not extend the notice periods that are a prerequisite to filing an unlawful
detainer action.” (Losornio v. Motta (1998) 67 Cal.App.4th 110, 112 [78
Cal.Rptr.2d 799].)
• “Section 1162 does not authorize service of a three-day notice to pay rent or quit
by mail delivery alone, certified or otherwise. It provides for service by: personal
delivery; leaving a copy with a person of suitable age and discretion at the
renter’s residence or usual place of business and sending a copy through the mail
to the tenant’s residence; or posting and delivery of a copy to a person there
residing, if one can be found, and sending a copy through the mail. Strict
compliance with the statute is required.” (Liebovich v. Shahrokhkhany (1997) 56
Cal.App.4th 511, 516 [65 Cal.Rptr.2d 457], original italics, internal citation
omitted.)
• “We . . . hold that service made in accordance with section 1162, subdivision 3,
as applied to section 1161, subdivision 2, must be effected in such a manner as
will give a tenant the three days of written notice required by the Legislature in
which he may cure his default in the payment of rent.” (Davidson, supra, 138
Cal.App.3d Supp. at p. 14.)
• “We . . . hold that service of the three-day notice by posting and mailing is
effective on the date the notice is posted and mailed.” (Walters, supra, 226
Cal.App.3d Supp. at p. 20.)
• “Plaintiff argues, however, that he should be allowed to amend his complaint so
as to bring his action under section 1161, subdivision 4. The notice thereunder
required need not be framed in the alternative. However, plaintiff has at no time,
either by his three days’ notice or in any of his pleadings, suggested that
defendant had assigned the lease or sublet the property, or had committed waste
contrary to the conditions or covenants of the lease, or maintained a nuisance on
the premises, or had used the property for an unlawful purpose. Plaintiff had
three opportunities to state a cause of action; if he was of the belief that facts
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existed which brought his case under 1161, subdivision 4, it would have been a
simple matter to allege such facts, but this he did not do.” (Hinman v. Wagnon
(1959) 172 Cal.App.2d 24, 29 [341 P.2d 749].)
• “[D]efendant admitted in his answer that he ‘ultimately received [the relevant]
notice’ but ‘affirmatively allege[d] that he was not properly and legally served’
with a valid notice. We find that, under the circumstances of this case, the
defendant waived any defect in the challenged service of the notice under
section 1162, subdivision 1.” (Valov, supra, 168 Cal.App.3d at p. 876.)
• “In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the . . . notice. Because there was no admission of receipt in this case,
service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a . . . notice . . . provided in section 1162. Therefore, the judgment
must be reversed.” (Liebovich, supra, 56 Cal.App.4th at p. 518.)
• “[Code of Civil Procedure section 1162 specifies] three ways in which service of
the . . . notice may be effected on a residential tenant: . . . . As explained in
Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance with
one of these methods must be shown or the judgment must be reversed.’ ” (Palm
Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
• “In commercial leases the landlord and commercial tenant may lawfully agree to
notice procedures that differ from those provided in the statutory provisions
governing unlawful detainer.” (Culver Center Partners East #1, L.P., supra, 185
Cal.App.4th at p.750.)
• “[E]ven if some policy rationale might support such a waiver/forfeiture [by
actual receipt] rule in the residential lease context, there is no basis to apply it in
the commercial context where matters of service and waiver are prescribed in
the lease itself. Nothing in the parties’ lease suggests actual receipt of a notice to
quit results in the waiver or forfeiture of [tenant]’s right to service accomplished
in the manner prescribed. To the contrary, the lease specifically provides, ‘No
covenant, term or condition, or breach’ of the lease ‘shall be deemed waived
except if expressly waived in a written instrument executed by the waiving
party.’ Although [tenant’s agent] acted on the notice to quit by attempting to
deliver the rent check, neither her fortuitous receipt of the notice nor her actions
in response to it constitutes an express waiver of the notice provisions in the
lease.” (Culver Center Partners East #1, L.P., supra, 185 Cal.App.4th at p. 752,
internal citation omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 701, 759,
760
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.62–8.68
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 6.25–6.29
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Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶¶ 7:98.5 et seq., 7:137 et seq. (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.24
(Matthew Bender)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 4,
Termination of Tenancy, 4.23
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.11
(Matthew Bender)
Miller & Starr California Real Estate 4th, §§ 34:182, 34:183 (Thomson Reuters)
4310–4319. Reserved for Future Use
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4320. Affirmative Defense—Implied Warranty of Habitability
[Name of defendant] claims that [he/she/nonbinary pronoun] does not owe
[any/the full amount of] rent because [name of plaintiff] did not maintain
the property in a habitable condition. To succeed on this defense, [name
of defendant] must prove that [name of plaintiff] failed to provide one or
more of the following:
a. [effective waterproofing and weather protection of roof and
exterior walls, including unbroken windows and doors][./; or]
b. [plumbing or gas facilities that complied with applicable law in
effect at the time of installation and that were maintained in good
working order][./; or]
c. [a water supply capable of producing hot and cold running water
furnished to appropriate fixtures, and connected to a sewage
disposal system][./; or]
d. [heating facilities that complied with applicable law in effect at
the time of installation and that were maintained in good working
order][./; or]
e. [electrical lighting with wiring and electrical equipment that
complied with applicable law in effect at the time of installation
and that were maintained in good working order][./; or]
f. [building, grounds, and all areas of the landlord’s control, kept in
every part clean, sanitary, and free from all accumulations of
debris, filth, rubbish, garbage, rodents, and vermin][./; or]
g. [an adequate number of containers for garbage and rubbish, in
clean condition and good repair][./; or]
h. [floors, stairways, and railings maintained in good
repair][./; or]
i. [Insert other applicable standard relating to habitability.]
[Name of plaintiff]’s failure to meet these requirements does not
necessarily mean that the property was not habitable. The failure must
be substantial. A condition that occurred only after [name of defendant]
failed or refused to pay rent and was served with a notice to pay rent or
vacate the property cannot be a defense to the previous nonpayment.
[Even if [name of defendant] proves that [name of plaintiff] substantially
failed to meet any of these requirements, [name of defendant]’s defense
fails if [name of plaintiff] proves that [name of defendant] has done any of
the following that contributed substantially to the condition or interfered
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substantially with [name of plaintiff]’s ability to make the necessary
repairs:
i. [substantially failed to keep [his/her/nonbinary pronoun] living
area as clean and sanitary as the condition of the property
permitted][./; or]
i. [substantially failed to dispose of all rubbish, garbage, and other
waste in a clean and sanitary manner][./; or]
i. [substantially failed to properly use and operate all electrical, gas,
and plumbing fixtures and keep them as clean and sanitary as
their condition permitted][./; or]
i. [intentionally destroyed, defaced, damaged, impaired, or removed
any part of the property, equipment, or accessories, or allowed
others to do so][./; or]
i. [substantially failed to use the property for living, sleeping,
cooking, or dining purposes only as appropriate based on the
design of the property.]]
The fact that [name of defendant] has continued to occupy the property
does not necessarily mean that the property is habitable.
New August 2007; Revised June 2010, June 2013, December 2014, November 2020
Directions for Use
This instruction applies only to residential tenancies. (See Code Civ. Proc.,
§ 1174.2(a).)
The habitability standards included are those set forth in Civil Code section 1941.1.
Use only those relevant to the case. Or insert other applicable standards as
appropriate, for example, other statutory or regulatory requirements (Knight v.
Hallsthammar (1981) 29 Cal.3d 46, 59, fn.10 [171 Cal.Rptr. 707, 623 P.2d 268]; see
Health & Saf. Code, §§ 17920.3, 17920.10) or security measures. (See Secretary of
Housing & Urban Dev. v. Layfield (1978) 88 Cal.App.3d Supp. 28, 30 [152
Cal.Rptr. 342].)
If the landlord alleges that the implied warranty of habitability does not apply
because of the tenant’s affirmative misconduct, select the applicable reasons. The
first two reasons do not apply if the landlord has expressly agreed in writing to
perform those acts. (Civ. Code, § 1941.2(b).)
In a case not involving unlawful detainer and the failure to pay rent, the California
Supreme Court has stated that the warranty of habitability extends only to
conditions of which the landlord knew or should have discovered through
reasonable inspections. (See Peterson v. Superior Court (1995) 10 Cal.4th 1185,
1206 [43 Cal.Rptr.2d 836, 899 P.2d 905].) The law on a landlord’s notice in the
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unlawful detainer context, however, remains unsettled. (Knight, supra, 29 Cal.3d at
p. 55, fn. 6.) A landlord has a duty to maintain the premises in a habitable condition
irrespective of whether the tenant knows about a particular condition. (Knight,
supra, 29 Cal.3d at p. 54.)
Sources and Authority
• Landlord’s Duty to Make Premises Habitable. Civil Code section 1941.
• Breach of Warranty of Habitability. Code of Civil Procedure section 1174.2.
• Untenantable Dwelling. Civil Code section 1941.1(a).
• Effect of Tenant’s Violations. Civil Code section 1941.2.
• Liability of Landlord Demanding Rent for Uninhabitable Property. Civil Code
section 1942.4(a).
• “Once we recognize that the tenant’s obligation to pay rent and the landlord’s
warranty of habitability are mutually dependent, it becomes clear that the
landlord’s breach of such warranty may be directly relevant to the issue of
possession. If the tenant can prove such a breach by the landlord, he may
demonstrate that his nonpayment of rent was justified and that no rent is in fact
‘due and owing’ to the landlord. Under such circumstances, of course, the
landlord would not be entitled to possession of the premises.” (Green v. Superior
Court (1974) 10 Cal.3d 616, 635 [111 Cal.Rptr. 704, 517 P.2d 1168].)
• “We have concluded that a warranty of habitability is implied by law in
residential leases in this state and that the breach of such a warranty may be
raised as a defense in an unlawful detainer action. Under the implied warranty
which we recognize, a residential landlord covenants that premises he leases for
living quarters will be maintained in a habitable state for the duration of the
lease. This implied warranty of habitability does not require that a landlord
ensure that leased premises are in perfect, aesthetically pleasing condition, but it
does mean that ‘bare living requirements’ must be maintained. In most cases
substantial compliance with those applicable building and housing code
standards which materially affect health and safety will suffice to meet the
landlord’s obligations under the common law implied warranty of habitability we
now recognize.” (Green, supra, 10 Cal.3d at p. 637, footnotes omitted.)
• “It follows that substantial noncompliance with applicable code standards could
lead to a breach of the warranty of habitability.” (Erlach v. Sierra Asset
Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298, fn. 9 [173 Cal.Rptr.3d 159].)
• “[U]nder Green, a tenant may assert the habitability warranty as a defense in an
unlawful detainer action. The plaintiff, of course, is not required to plead
negative facts to anticipate a defense.” (De La Vara v. Municipal Court (1979)
98 Cal.App.3d 638, 641 [159 Cal.Rptr. 648], internal citations omitted.)
• “[T]he fact that a tenant was or was not aware of specific defects is not
determinative of the duty of a landlord to maintain premises which are habitable.
The same reasons which imply the existence of the warranty of habitability—the
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inequality of bargaining power, the shortage of housing, and the impracticability
of imposing upon tenants a duty of inspection—also compel the conclusion that
a tenant’s lack of knowledge of defects is not a prerequisite to the landlord’s
breach of the warranty.” (Knight, supra, 29 Cal.3d at p. 54.)
• “The implied warranty of habitability recognized in Green gives a tenant a
reasonable expectation that the landlord has inspected the rental dwelling and
corrected any defects disclosed by that inspection that would render the dwelling
uninhabitable. The tenant further reasonably can expect that the landlord will
maintain the property in a habitable condition by repairing promptly any
conditions, of which the landlord has actual or constructive notice, that arise
during the tenancy and render the dwelling uninhabitable. A tenant injured by a
defect in the premises, therefore, may bring a negligence action if the landlord
breached its duty to exercise reasonable care. But a tenant cannot reasonably
expect that the landlord will have eliminated defects in a rented dwelling of
which the landlord was unaware and which would not have been disclosed by a
reasonable inspection.” (Peterson, supra, 10 Cal.4th at pp. 1205–1206, footnotes
omitted.)
• “At least in a situation where, as here, a landlord has notice of alleged
uninhabitable conditions not caused by the tenants themselves, a landlord’s
breach of the implied warranty of habitability exists whether or not he has had a
‘reasonable’ time to repair. Otherwise, the mutual dependence of a landlord’s
obligation to maintain habitable premises, and of a tenant’s duty to pay rent,
would make no sense.” (Knight, supra, 29 Cal.3d at p. 55, footnote omitted.)
• “[A] tenant may defend an unlawful detainer action against a current owner, at
least with respect to rent currently being claimed due, despite the fact that the
uninhabitable conditions first existed under a former owner.” (Knight, supra, 29
Cal.3d at p. 57.)
• “Without evaluating the propriety of instructing the jury on each item included
in the defendants’ requested instruction, it is clear that, where appropriate under
the facts of a given case, tenants are entitled to instructions based upon relevant
standards set forth in Civil Code section 1941.1 whether or not the ‘repair and
deduct’ remedy has been used.” (Knight, supra, 29 Cal.3d at p. 58.)
• “The defense of implied warranty of habitability is not applicable to unlawful
detainer actions involving commercial tenancies.” (Fish Construction Co. v.
Moselle Coach Works, Inc. (1983) 148 Cal.App.3d 654, 658 [196 Cal.Rptr. 174],
internal citation omitted.)
• “In the event of a landlord’s breach of the implied warranty of habitability, the
tenant is not absolved of the obligation to pay rent; rather the tenant remains
liable for the reasonable rental value as determined by the court for the period
that the defective condition of the premises existed.” (Erlach, supra, 226
Cal.App.4th at p. 1297.)
• “In defending against a 30-day notice, the sole purpose of the [breach of the
warranty of habitability] defense is to reduce the amount of daily damages for
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the period of time after the notice expires.” (N. 7th St. Assocs. v. Constante
(2001) 92 Cal.App.4th Supp. 7, 11, fn. 1 [111 Cal.Rptr.2d 815].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 651
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 3-A, Warranty Of
Habitability—In General, ¶ 3:1 et seq. (The Rutter Group)
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.109–8.112
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.64, 12.36–12.37
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) Ch. 15
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.64,
210.95A (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.61
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
Miller & Starr, California Real Estate 4th, § 19:224 (Thomson Reuters)
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4321. Affirmative Defense—Retaliatory Eviction—Tenant’s
Complaint (Civ. Code, § 1942.5)
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun/it] because [name of plaintiff] filed this lawsuit
in retaliation for [name of defendant]’s having exercised [his/her/nonbinary
pronoun/its] rights as a tenant. To succeed on this defense, [name of
defendant] must prove all of the following:
[1. That [name of defendant] was not in default in the payment of
[his/her/nonbinary pronoun/its] rent;]
2. That [name of plaintiff] filed this lawsuit in retaliation because
[name of defendant] had complained about the condition of the
property to [[name of plaintiff]/[name of appropriate agency]]; and
3. That [name of plaintiff] filed this lawsuit within 180 days after
3. [Select the applicable date(s) or event(s):]
3. [the date on which [name of defendant], in good faith, gave notice
to [name of plaintiff] or made an oral complaint to [name of
plaintiff] regarding the conditions of the property][./; or]
3. [the date on which [name of defendant], in good faith, filed a
written complaint, or an oral complaint that was registered or
otherwise recorded in writing, with [name of appropriate agency],
of which [name of plaintiff] had notice, for the purpose of
obtaining correction of a condition of the property][./; or]
3. [the date of an inspection or a citation, resulting from a
complaint to [name of appropriate agency] of which [name of
plaintiff] did not have notice][./; or]
3. [the filing of appropriate documents to begin a judicial or an
arbitration proceeding involving the conditions of the property][./;
or]
3. [entry of judgment or the signing of an arbitration award that
determined the issue of the conditions of the property against
[name of plaintiff]].
[Even if [name of defendant] has proved that [name of plaintiff] filed this
lawsuit with a retaliatory motive, [name of plaintiff] is still entitled to
possession of the premises if [he/she/nonbinary pronoun/it] proves that
[he/she/nonbinary pronoun/it] also filed the lawsuit in good faith for a
reason stated in the [3/30/60]-day notice.]
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New August 2007; Revised June 2010, May 2020
Directions for Use
This instruction is based solely on Civil Code section 1942.5(a), which has the 180-
day limitation. The remedies provided by this statute are in addition to any other
remedies provided by statutory or decisional law. (Civ. Code, § 1942.5(j).) Thus,
there are two parallel and independent sources for the doctrine of retaliatory
eviction: the statute and the common law. (Barela v. Superior Court (1981) 30
Cal.3d 244, 251 [178 Cal.Rptr. 618, 636 P.2d 582].) Whether the common law
provides additional protection against retaliation beyond the 180-day period has not
been decided. (See Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776 [187 Cal.Rptr.
242] [statute not a limit in tort action for wrongful eviction; availability of the
common law retaliatory eviction defense, unlike that authorized by section 1942.5,
is apparently not subject to time limitations].)
Include element 1 only if the landlord’s asserted ground for eviction is something
other than nonpayment of rent. If nonpayment is the ground, the landlord has the
burden to prove that the tenant is in default. (See CACI No. 4302, Termination for
Failure to Pay Rent—Essential Factual Elements.)
If element 1 is included, there may be additional issues of fact that the jury must
resolve in order to decide whether the tenant is in default in the payment of rent. If
necessary, instruct that the tenant is not in default if the tenant has exercised any
legally protected right not to pay the contractual amount of rent, such as a
habitability defense, a “repair and deduct” remedy, or a rent increase that is alleged
to be retaliatory.
For element 3, select the appropriate date or event that triggered the 180-day period
within which a landlord may not file an unlawful detainer. (Civ. Code, § 1942.5(a).)
Include the last paragraph if the landlord alleges that there was also a lawful cause
for the eviction (see Civ. Code, § 1942.5(f) [landlord may proceed “for any lawful
cause”]), and that this cause was both asserted in good faith and set forth in the
notice terminating the tenancy. (See Civ. Code, § 1942.5(g); Drouet v. Superior
Court (2003) 31 Cal.4th 583, 595–596 [3 Cal.Rptr.3d 205, 73 P.3d 1185] [landlord
asserting lawful cause under 1942.5(f) must also establish good faith under
1942.5(g), but need not establish total absence of retaliatory motive].)
Sources and Authority
• Retaliatory Eviction: Tenant Complaints. Civil Code section 1942.5(a).
• Lawful Acts Permitted; No Tenant Waiver. Civil Code section 1942.5(f).
• Landlord’s Good Faith Acts. Civil Code section 1942.5(g).
• “The defense of ‘retaliatory eviction’ has been firmly ensconced in this state’s
statutory law and judicial decisions for many years. ‘It is settled that a landlord
may be precluded from evicting a tenant in retaliation for certain kinds of lawful
activities of the tenant. As a landlord has no right to possession when he seeks it
for such an invalid reason, a tenant may raise the defense of retaliatory eviction
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in an unlawful detainer proceeding.’ The retaliatory eviction doctrine is founded
on the premise that ‘[a] landlord may normally evict a tenant for any reason or
for no reason at all, but he may not evict for an improper reason . . . .’ ”
(Barela, supra, 30 Cal.3d at p. 249, internal citations omitted.)
• “Thus, California has two parallel and independent sources for the doctrine of
retaliatory eviction. This court must decide whether petitioner raised a legally
cognizable defense of retaliatory eviction under the statutory scheme and/or the
common law doctrine.” (Barela, supra, 30 Cal.3d at p. 251.)
• “Retaliatory eviction occurs, as Witkin observes, ‘[When] a landlord exercises
his legal right to terminate a residential tenancy in an authorized manner, but
with the motive of retaliating against a tenant who is not in default but has
exercised his legal right to obtain compliance with requirements of habitability.’
It is recognized as an affirmative defense in California; and as appellant correctly
argues, it extends beyond warranties of habitability into the area of First
Amendment rights.” (Four Seas Inv. Corp. v. International Hotel Tenants’ Assn.
(1978) 81 Cal.App.3d 604, 610 [146 Cal.Rptr. 531], internal citations omitted.)
• “If a tenant factually establishes the retaliatory motive of his landlord in
instituting a rent increase and/or eviction action, such proof should bar eviction.
Of course, we do not imply that a tenant who proves a retaliatory purpose is
entitled to remain in possession in perpetuity. . . . ‘If this illegal purpose is
dissipated, the landlord can, in the absence of legislation or a binding contract,
evict his tenants or raise their rents for economic or other legitimate reasons, or
even for no reason at all.’ ” (Schweiger v. Superior Court of Alameda County
(1970) 3 Cal.3d 507, 517 [90 Cal.Rptr. 729, 476 P.2d 97], internal citations
omitted.)
• “The existence or nonexistence of a landlord’s retaliatory motive is ordinarily a
question of fact.” (W. Land Offıce v. Cervantes (1985) 175 Cal.App.3d 724, 731
[220 Cal.Rptr. 784].)
• “[T]he proper way to construe the statute when a landlord seeks to evict a tenant
under the Ellis Act, and the tenant answers by invoking the retaliatory eviction
defense under section 1942.5, is to hold that the landlord may nonetheless
prevail by asserting a good faith—i.e., a bona fide—intent to withdraw the
property from the rental market. If the tenant controverts the landlord’s good
faith, the landlord must establish the existence of the bona fide intent at a trial or
hearing by a preponderance of the evidence.” (Drouet, supra, 31 Cal.4th at p.
596.)
• “Only when the landlord has been unable to establish a bona fide intent need the
fact finder proceed to determine whether the eviction is for the purpose of
retaliating against the tenant under subdivision (a) or (c) of section 1942.5.”
(Drouet, supra, 31 Cal.4th at p. 600.)
• “Drouet’s interpretation ‘give[s] effect to the plain language of [Civil Code
section 1942.5], including [former] subdivisions (d) and (e), which permit a
landlord to go out of business and evict the tenants—even if the landlord has a
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retaliatory motive—so long as the landlord also has the bona fide intent to go
out of business. . . . If, on the other hand, the landlord cannot establish a bona
fide intent to go out of business, the tenants may rely on [former] subdivisions
(a) and (c) to resist the eviction.’ ” (Coyne v. De Leo (2018) 26 Cal.App.5th 801,
806 [237 Cal.Rptr.3d 359], original italics.)
• “[T]he cause of action for retaliation recognized by section 1942.5 applies to
tenants of a mobilehome park. . . . ‘By their terms, subdivisions (c) and (f) of
section 1942.5 give a right of action to any lessee who has been subjected to an
act of unlawful retaliation. Thus, on its face the statute provides protection to
mobilehome park tenants who own their own dwellings and merely rent space
from their landlord.’ ” (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th
323, 330 [161 Cal.Rptr.3d 772].)
• “[T]he Legislature intended to create a cause of action for retaliatory eviction
that is not barred by the litigation privilege. If the litigation privilege trumped a
suit for retaliatory eviction under section 1942.5 the privilege would
“ ‘effectively immunize conduct that the [statute] prohibits’ ” [citation], thereby
encouraging, rather than suppressing, “ ‘the mischief at which it was directed.
[Citation.]’ ” ’ ” (Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239,
254 [237 Cal.Rptr.3d 25].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 739, 742,
745
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.113–8.117
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.65, 12.38
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) Ch. 16
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.62
(Matthew Bender)
Miller & Starr, California Real Estate 4th, § 34:206 (Thomson Reuters)
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4322. Affirmative Defense—Retaliatory Eviction—Engaging in
Legally Protected Activity (Civ. Code, § 1942.5(d))
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun/it] because [name of plaintiff] filed this lawsuit
in retaliation for [name of defendant]’s having engaged in legally
protected activities. To succeed on this defense, [name of defendant] must
prove both of the following:
1. [Insert one or both of the following options:]
1. [That [name of defendant] lawfully organized or participated in [a
tenants’ association/an organization advocating tenants’ rights];]
[or]
1. [That [name of defendant] lawfully and peaceably [insert
description of lawful activity];]
AND
2. That [name of plaintiff] filed this lawsuit because [name of
defendant] engaged in [this activity/these activities].
[Even if [name of defendant] has proved that [name of plaintiff] filed this
lawsuit with a retaliatory motive, [name of plaintiff] is still entitled to
possession of the premises if [he/she/nonbinary pronoun/it] proves that
[he/she/nonbinary pronoun/it] also filed the lawsuit in good faith for a
reason stated in the [3/30/60]-day notice.]
New August 2007
Directions for Use
In element 1, select the tenant’s conduct that is alleged to be the reason for the
landlord’s retaliation. (Civ. Code, § 1942.5(d).)
Include the last paragraph if the landlord alleges that there was also a lawful cause
for the eviction (see Civ. Code, § 1942.5(f)), and that this cause was both asserted in
good faith and set forth in the notice terminating the tenancy. (See Civ. Code,
§ 1942.5(g); Drouet v. Superior Court (2003) 31 Cal.4th 583, 595–596 [3
Cal.Rptr.3d 205, 73 P.3d 1185] [landlord asserting lawful cause under 1942.5(f)
must also establish good faith under 1942.5(g), but need not establish total absence
of retaliatory motive].)
Sources and Authority
• Retaliatory Eviction: Exercise of Tenant Rights. Civil Code section 1942.5(d).
• Lawful Acts Permitted; No Tenant Waiver. Civil Code section 1942.5(f).
• Landlord’s Good-Faith Acts. Civil Code section 1942.5(g).
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• “If a tenant factually establishes the retaliatory motive of his landlord in
instituting a rent increase and/or eviction action, such proof should bar eviction.
Of course, we do not imply that a tenant who proves a retaliatory purpose is
entitled to remain in possession in perpetuity. . . . ‘If this illegal purpose is
dissipated, the landlord can, in the absence of legislation or a binding contract,
evict his tenants or raise their rents for economic or other legitimate reasons, or
even for no reason at all. The question of permissible or impermissible purpose
is one of fact for the court or jury.’ ” (Schweiger v. Superior Court of Alameda
County (1970) 3 Cal.3d 507, 517 [90 Cal.Rptr. 729, 476 P.2d 97], internal
citations omitted.)
• “In an unlawful detainer action, where the defense of retaliatory eviction is
asserted pursuant to Civil Code section 1942.5, the tenant has the overall burden
of proving his landlord’s retaliatory motive by a preponderance of the evidence.
If the landlord takes action for a valid reason not listed in the unlawful detainer
statutes, he must give notice to the tenant of the ground upon which he
proceeds; and if the tenant controverts that ground, the landlord has the burden
of proving its existence by a preponderance of the evidence.” (Western Land
Offıce, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 741 [220 Cal.Rptr. 784].)
• “[T]he burden was on the tenants to establish retaliatory motive by a
preponderance of the evidence.” (Western Land Offıce, Inc., supra, 175
Cal.App.3d at p. 744.)
• “[T]he proper way to construe the statute when a landlord seeks to evict a tenant
under the Ellis Act, and the tenant answers by invoking the retaliatory eviction
defense under section 1942.5, is to hold that the landlord may nonetheless
prevail by asserting a good faith—i.e., a bona fide—intent to withdraw the
property from the rental market. If the tenant controverts the landlord’s good
faith, the landlord must establish the existence of the bona fide intent at a trial or
hearing by a preponderance of the evidence.” (Drouet, supra, 31 Cal.4th at p.
596.)
• “Only when the landlord has been unable to establish a bona fide intent need the
fact finder proceed to determine whether the eviction is for the purpose of
retaliating against the tenant under subdivision (a) or (c) of section 1942.5.”
(Drouet, supra, 31 Cal.4th at p. 600.)
• “Drouet’s interpretation ‘give[s] effect to the plain language of [Civil Code
section 1942.5], including [former] subdivisions (d) and (e), which permit a
landlord to go out of business and evict the tenants—even if the landlord has a
retaliatory motive—so long as the landlord also has the bona fide intent to go
out of business. . . . If, on the other hand, the landlord cannot establish a bona
fide intent to go out of business, the tenants may rely on [former] subdivisions
(a) and (c) to resist the eviction.’ ” (Coyne v. De Leo (2018) 26 Cal.App.5th 801,
806 [237 Cal.Rptr.3d 359], original italics.)
• “[T]he cause of action for retaliation recognized by section 1942.5 applies to
tenants of a mobilehome park. . . . ‘By their terms, subdivisions (c) and (f) of
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section 1942.5 give a right of action to any lessee who has been subjected to an
act of unlawful retaliation. Thus, on its face the statute provides protection to
mobilehome park tenants who own their own dwellings and merely rent space
from their landlord.’ ” (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th
323, 330 [161 Cal.Rptr.3d 772].)
• “[T]he Legislature intended to create a cause of action for retaliatory eviction
that is not barred by the litigation privilege. If the litigation privilege trumped a
suit for retaliatory eviction under section 1942.5 the privilege would
“ ‘effectively immunize conduct that the [statute] prohibits’ ” [citation], thereby
encouraging, rather than suppressing, “ ‘the mischief at which it was directed.
[Citation.]’ ” ’ ” (Winslett v. 1811 27th Avenue LLC (2018) 26 Cal.App.5th 239,
254 [237 Cal.Rptr.3d 25].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 739, 742,
745
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.113–8.117
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.65, 12.38
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) Ch. 16
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.62
(Matthew Bender)
Miller & Starr, California Real Estate 4th, § 34:206 (Thomson Reuters)
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4323. Affirmative Defense—Discriminatory Eviction (Unruh Act)
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun] because [name of plaintiff] is discriminating
against [him/her/nonbinary pronoun] because of [insert protected class, e.g.,
her national origin, or other characteristic protected from arbitrary
discrimination]. To succeed on this defense, [name of defendant] must
prove both of the following:
1. That [name of defendant] is [perceived as/associated with someone
who is [perceived as]] [insert protected class, e.g., Hispanic, or
other characteristic]; and
2. That [name of plaintiff] filed this lawsuit because of [insert one of
the following:]
2. [[his/her/nonbinary pronoun/its] [perception of] [name of
defendant]’s [insert protected class, e.g., national origin, or other
characteristic].]
2. [[name of defendant]’s association with someone who is [perceived
as] [insert protected class, e.g., Hispanic, or other characteristic].]
New August 2007; Revised May 2020
Directions for Use
Throughout the instruction, insert either the defendant’s protected status under the
Unruh Act (see Civ. Code, § 51) or other characteristic on the basis of which the
defendant alleges that the defendant has been arbitrarily discriminated against. (See
Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 725–726 [180 Cal.Rptr. 496,
640 P.2d 115] [excluding all tenants with children is arbitrary illegal
discrimination].)
In element 1, select the appropriate language based on whether the defendant (1) is
a member of the protected class, (2) is perceived as a member of the protected
class, (3) is associated with someone who is a member of the protected class, or (4)
is associated with someone who is perceived as a member of the protected class.
In element 2, include the bracketed language regarding perception if the defendant is
not actually a member of the protected class, but the allegation is that the plaintiff
believes that the defendant is a member.
See also the Sources and Authority section under CACI No. 3060, Unruh Civil
Rights Act—Essential Factual Elements.
Sources and Authority
• Discrimination in Public Accommodations Prohibited (Unruh Act). Civil Code
section 51.
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• “In evaluating the legality of the challenged exclusionary policy in this case, we
must recognize at the outset that in California, unlike many other jurisdictions,
the Legislature has sharply circumscribed an apartment owner’s traditional
discretion to accept and reject tenants on the basis of the landlord’s own likes or
dislikes. California has brought such landlords within the embrace of the broad
statutory provisions of the Unruh Act, Civil Code section 51. Emanating from
and modeled upon traditional ‘public accommodations’ legislation, the Unruh Act
expanded the reach of such statutes from common carriers and places of public
accommodation and recreation, e.g., railroads, hotels, restaurants, theaters and
the like, to include ‘all business establishments of every kind whatsoever.’ ”
(Marina Point, Ltd., supra, 30 Cal.3d at pp. 730–731, footnote omitted.)
• “[T]he ‘identification of particular bases of discrimination—color, race, religion,
ancestry, and national origin—is illustrative rather than restrictive. Although the
legislation has been invoked primarily by persons alleging discrimination on
racial grounds, its language and its history compel the conclusion that the
Legislature intended to prohibit all arbitrary discrimination by business
establishments.’ ” (Marina Point, Ltd., supra, 30 Cal.3d at p. 732, original
italics.)
• “We hold that defendant should have been permitted to produce proof of the
allegations of his special defenses of discrimination, which if proven would bar
the court from ordering his eviction because such ‘state action’ would be
violative of both federal and state Constitutions.” (Abstract Inv. Co. v.
Hutchinson (1962) 204 Cal.App.2d 242, 255 [22 Cal.Rptr. 309].)
• Evictions that contravene statutory or constitutional strictures provide a valid
defense to unlawful detainer actions. (Marina Point, Ltd., supra, 30 Cal.3d at p.
727.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 712–713
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.118–8.128
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 10.53, 10.67, 10.68
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.10 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing
Discrimination, § 117.31 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Unlawful Detainer, § 35.45 (Matthew
Bender)
Miller & Starr, California Real Estate 4th, § 19:223 (Thomson Reuters)
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4324. Affirmative Defense—Waiver by Acceptance of Rent
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun/it] because [name of plaintiff] accepted
payment of rent [after the three-day notice period had expired/[name of
defendant] had violated the [lease/rental agreement]]. To succeed on this
defense, [name of defendant] must prove:
[1. That [name of plaintiff] accepted a [partial] payment of rent after
[the three-day notice period had expired/[name of plaintiff] knew
that [name of defendant] had violated the [lease/rental agreement]]
[./; and]
[2. That [name of plaintiff] failed to provide actual notice to [name of
defendant] that partial payment would be insufficient to avoid
eviction.]
If [name of defendant] has proven that [he/she/nonbinary pronoun/it] paid
rent, then [he/she/nonbinary pronoun/it] has the right to continue
occupying the property unless [name of plaintiff] proves [one of the
following:]
[1. That even though [name of plaintiff] received [name of defendant]’s
[specify noncash form of payment, e.g., check], [he/she/nonbinary
pronoun/it] rejected the rent payment because [e.g., it never cashed
the check]][./; or]
[2. That the lease contained a provision stating that acceptance of
[late rent/rent after knowing of a violation of the [lease/rental
agreement]] would not affect [his/her/nonbinary pronoun/its] right
to evict [name of defendant]][./; or]
[3. That [name of plaintiff] clearly and continuously objected to the
violation of the [lease/rental agreement].]
New August 2007; Revised April 2008, June 2010, December 2011
Directions for Use
The affirmative defense in this instruction applies to an unlawful detainer for
nonpayment of rent or breach of another condition of the lease if either the landlord
accepts a rent payment after the three-day period to cure or quit has expired or the
landlord waived a breach of a condition by accepting rent after the breach and then
subsequently served a notice of forfeiture and filed an unlawful detainer. Acceptance
of rent may also be a defense to an unlawful detainer if the tenant remains in
possession after the expiration of the terms of the lease. (See Civ. Code, § 1945;
Kaufman v. Goldman (2011) 195 Cal.App.4th 734, 740 [124 Cal.Rptr.3d 555].) This
defense is available for breach of a covenant prohibiting a sublease or assignment
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only if the landlord received written notice of the sublease or assignment from the
tenant and accepted rent thereafter. (See Civ. Code, § 1954.53(d)(4).)
With regard to the tenant-defendant’s burden, include the word “partial” in element
1 and read element 2 only in cases involving commercial tenancies and partial
payment. (Code Civ. Proc., § 1161.1(c).)
With regard to the landlord plaintiff’s burden, give option 3 if there is evidence that
the landlord at all times made it clear that acceptance of rent was not a waiver of
the breach. (See Thriftimart, Inc. v. Me & Tex (1981) 123 Cal.App.3d 751, 754 [177
Cal.Rptr. 24] [accepting rent for five years was not a waiver].)
Sources and Authority
• Commercial Tenancy: Acceptance of Partial Payment Not Waiver. Code of Civil
Procedure section 1161.1(c).
• Acceptance of Rent After Expiration of Term. Civil Code section 1945.
• When Acceptance of Rent Is Not Waiver. Civil Code section 1954.53(d)(4).
• “It is a general rule that the right of a lessor to declare a forfeiture of the lease
arising from some breach by the lessee is waived when the lessor, with
knowledge of the breach, accepts the rent specified in the lease. While waiver is
a question of intent, the cases have required some positive evidence of rejection
on the landlord’s part or a specific reservation of rights in the lease to overcome
the presumption that tender and acceptance of rent creates.” (EDC Assocs. v.
Gutierrez (1984) 153 Cal.App.3d 167, 170 [200 Cal.Rptr. 333], internal citations
omitted.)
• “The acceptance of rent by the landlord from the tenant, after the breach of a
condition of the lease, with full knowledge of all the facts, is a waiver of the
breach and precludes the landlord from declaring a forfeiture of the lease by
reason of said breach. This is the general rule and is supported by ample
authority. . . . ‘The most familiar instance of the waiver of the forfeiture of a
lease arises from the acceptance of rent by the landlord after condition broken,
and it is a universal rule that if the landlord accepts rent from his tenant after
full notice or knowledge of a breach of a covenant or condition in his lease for
which a forfeiture might have been demanded, this constitutes a waiver of
forfeiture which cannot afterward be asserted for that particular breach or any
other breach which occurred prior to the acceptance of the rent. In other words,
the acceptance by a landlord of the rents, with full knowledge of a breach in the
conditions of the lease, and of all of the circumstances, is an affirmation by him
that the contract of lease is still in force, and he is thereby estopped from setting
up a breach in any of the conditions of the lease, and demanding a forfeiture
thereof.’ ” (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435,
440–441 [6 P.2d 71], internal citations omitted.)
• “Here the lessor not only relied upon the express agreement in the contract of
the lease against waiver of its right to assert a forfeiture for the acceptance of
rent after knowledge of the breach of covenant prohibiting assignment of the
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lease without its written consent first obtained, but it also gave notice that its
acceptance of the rent after the breach of covenant became known was not to be
construed as a consent to the assignment of the lease or a waiver of its right to
assert a forfeiture.” (Karbelnig v. Brothwell (1966) 244 Cal.App.2d 333, 342 [53
Cal.Rptr. 335].)
• “The landlord had the obligation of going forward with the evidence in order to
prove that the money orders were not negotiated or that it took other action to
insure that there was no waiver. ‘Although a plaintiff ordinarily has the burden
of proving every allegation of the complaint and a defendant of proving any
affirmative defense, fairness and policy may sometimes require a different
allocation. Where the evidence necessary to establish a fact essential to a claim
lies peculiarly within the knowledge and competence of one of the parties, that
party has the burden of going forward with the evidence on the issue although it
is not the party asserting the claim.’ ” (EDC Assocs., supra, 153 Cal.App.3d at
p. 171, internal citations omitted.)
• “Waiver is a matter of intent. Here plaintiff, from the start, evidenced, not a
willingness to waive—which would have kept the original lease in force at the
contractual rent—but a willingness to lease the land encroached upon and, if that
extended lease were arrived at, to continue the lease on the original parcel. We
cannot impose on plaintiff a penalty for a reasonable effort to achieve an
amicable adjustment of the breach.” (Thriftimart, Inc., supra, 123 Cal.App.3d at
p. 754.)
• “ ‘When the term of a lease expires but the lessee holds over without the
owner’s consent, he becomes a tenant at sufferance. [Citation.] “Since the
possession of the tenant at sufferance is wrongful, the owner may elect to regard
the tenant as a trespasser . . . .” [Citation.] If instead the owner accepts rent
from a tenant at sufferance he accepts the tenant’s possession as rightful and the
tenancy is converted into a periodic one.’ ” (Kaufman, supra, 195 Cal.App.4th at
p. 740.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 696
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) § 10.60
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 6.31–6.37, 6.41, 6.42
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.65
(Matthew Bender)
Miller & Starr, California Real Estate 4th, § 19:205 (Thomson Reuters)
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4325. Affirmative Defense—Failure to Comply With Rent Control
Ordinance/Tenant Protection Act
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun] because [name of plaintiff] violated [[insert
name of local governmental entity]’s rent control law]/[the Tenant
Protection Act]. To succeed on this defense, [name of defendant] must
prove the following:
[Insert elements of rent control defense.]
New August 2007; Revised May 2020
Directions for Use
Insert the elements of the Tenant Protection Act of 2019 and/or the relevant local
rent control law into this instruction.
Sources and Authority
• Tenant Protection Act of 2019. Civil Code section 1946.2.
• “[T]he statutory remedies for recovery of possession and of unpaid rent do not
preclude a defense based on municipal rent control legislation enacted pursuant
to the police power imposing rent ceilings and limiting the grounds for eviction
for the purpose of enforcing those rent ceilings.” (Birkenfeld v. Berkeley (1976)
17 Cal.3d 129, 149 [130 Cal.Rptr. 465, 550 P.2d 1001], internal citations and
footnote omitted.)
• “Although municipalities have power to enact ordinances creating substantive
defenses to eviction, such legislation is invalid to the extent it conflicts with
general state law.” (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 697 [209
Cal.Rptr. 682, 693 P.2d 261], internal citations omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 618
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 7.53–7.76
2 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) Ch. 17
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy Actions, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
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Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.74
(Matthew Bender)
Miller & Starr California Real Estate 4th, §§ 34:204, 34:256 (Thomson Reuters)
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4326. Affirmative Defense—Repair and Deduct
[Name of defendant] claims that [he/she/nonbinary pronoun] does not owe
[any/the full amount of] rent because [he/she/nonbinary pronoun] was not
given credit against the rent for repairs performed during the period for
which rent was not paid. To succeed on this defense, [name of defendant]
must prove the following:
1. [Name of defendant] gave notice to [name of plaintiff][’s agent] of
one or more conditions on the premises in need of repair;
2. [Name of plaintiff] did not make the requested repairs within a
reasonable time after receiving notice;
3. [Name of defendant] spent $ to make the repairs and gave
[name of plaintiff] notice of this expenditure;
4. [Name of plaintiff] did not give [name of defendant] credit for this
amount against the rent that was due; and
5. [Name of defendant] had not exercised the right to repair and
deduct more than once within the 12 months before the month
for which the cost of repairs was deducted from the rent.
If [name of defendant] acts to repair and deduct more than 30 days after
the notice, [he/she/nonbinary pronoun] is presumed to have waited a
reasonable time. This presumption may be overcome by evidence
showing that a [shorter/ [or] longer] period is more reasonable. [[Name
of defendant] may repair and deduct after a shorter notice if all the
circumstances require shorter notice.]
[Even if [name of defendant] proves all of the above requirements, [name
of defendant] was not entitled to repair and deduct if [name of plaintiff]
proves that [name of defendant] has done any of the following that
contributed substantially to the need for repair or interfered
substantially with [name of plaintiff]’s ability to make the necessary
repairs:
[Failed to keep [his/her/nonbinary pronoun] living area as clean
and sanitary as the condition of the property permits][./; or]
[Failed to dispose of all rubbish, garbage, and other waste in a
clean and sanitary manner][./; or]
[Failed to properly use and operate all electrical, gas, and
plumbing fixtures and keep them as clean and sanitary as their
condition permits][./; or]
[Intentionally destroyed, defaced, damaged, impaired, or removed
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any part of the property, equipment, or accessories, or allowed
others to do so][./; or]
[Failed to use the property for living, sleeping, cooking, or dining
purposes only as appropriate based on the design of the
property][./;or]
[Otherwise failed to exercise reasonable care.]]
New April 2008
Directions for Use
Give this instruction if the tenant alleges the affirmative defense of having exercised
the right to make repairs and deduct their cost from the rent. (See Civ. Code,
§ 1942.) If the landlord alleges that repair and deduct is not available because of the
tenant’s affirmative misconduct, select the applicable reasons. The first two reasons
do not apply if the landlord has expressly agreed in writing to perform those acts.
(Civ. Code, § 1941.2(b).)
Sources and Authority
• Tenant’s Right to Repair and Deduct. Civil Code section 1942.
• Repairs Caused by Lack of Ordinary Care. Civil Code section 1929.
• When Landlord Not Obligated to Repair. Civil Code section 1941.2.
• “[T]he limited nature of the ‘repair and deduct’ remedy, in itself, suggests that it
was not designed to serve as an exclusive remedy for tenants in this area. As
noted above, section 1942 only permits a tenant to expend up to one month’s
rent in making repairs, and now also provides that this self-help remedy can be
invoked only once in any 12-month period. These limitations demonstrate that
the Legislature framed the section only to encompass relatively minor
dilapidations in leased premises. As the facts of the instant case reveal, in the
most serious instances of deterioration, when the costs of repair are at all
significant, section 1942 does not provide, and could not have been designed as,
a viable solution.” (Green v. Superior Court of San Francisco (1974) 10 Cal.3d
616, 630–631 [111 Cal.Rptr. 704, 517 P.2d 1168], internal citations omitted.)
• “Clearly, sections 1941 and 1942 express the policy of this state that landlords in
the interest of public health and safety have the duty to maintain leased premises
in habitable condition and that tenants have the right, after notice to the landlord,
to repair dilapidations and deduct the cost of the repairs from the rent. The
policy expressed in these sections cannot be effectuated if landlords may evict
tenants who invoke the provisions of the statute. Courts would be withholding
with one hand what the Legislature has granted with the other if they order
evictions instituted in retaliation against the exercise of statutory rights.”
(Schweiger v. Superior Court of Alameda County (1970) 3 Cal.3d 507, 516 [90
Cal.Rptr. 729, 476 P.2d 97].)
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• “[T]he statutory remedies provided a tenant under Civil Code section 1941 et
seq. were not intended by the Legislature as the tenant’s exclusive remedy for
the landlord’s failure to repair. ‘Although past cases have held that the
Legislature intended the remedies afforded by section 1942 to be the sole
procedure for enforcing the statutory duty on landlords imposed by section 1941
[citations], no decision has suggested that the Legislature designed these
statutory provisions to displace the common law in fixing the respective rights of
landlord and tenant. On the contrary, the statutory remedies of section 1942 have
traditionally been viewed as additional to, and complementary of, the tenant’s
common law rights.’ Thus, ‘. . . the statutory framework of section 1941 et seq.
has never been viewed as a curtailment of the growth of the common law in this
field.’ ” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914–915 [162
Cal.Rptr. 194], original italics, internal citations and footnote omitted.)
Secondary Sources
1 California Landlord-Tenant Practice, Ch. 3, Rights and Duties During Tenancy
(Cont.Ed.Bar 2d ed.) § 3.12 et seq.
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.42[3] (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer,
§ 210.64[10] (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damage, § 334.117 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.62
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.30 (Matthew Bender)
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4327. Affirmative Defense—Landlord’s Refusal of Rent
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun/it] because [name of plaintiff] refused to
accept [name of defendant]’s payment of the rent. To succeed on this
defense, [name of defendant] must prove:
1. That after service of the three-day notice but before the three-day
period had expired, [name of defendant] presented the full amount
of rent that was due to [name of plaintiff]; and
2. That [name of plaintiff] refused to accept the payment.
[Giving a check constitutes payment if [name of plaintiff]’s practice was
to accept payment by check unless [name of plaintiff] had previously
notified [name of defendant] that payment by check was no longer
acceptable.]
New October 2008
Directions for Use
Give the last bracketed paragraph if the tender was by check and there is an issue as
to the landlord’s motive in refusing the check.
Sources and Authority
• Debtor’s Deposit of Amount of Debt. Civil Code section 1500.
• “The mere giving of a check or checks does not constitute payment.” (Mau v.
Hollywood Commercial Bldgs., Inc. (1961) 194 Cal.App.2d 459, 470 [15
Cal.Rptr. 181], internal citation omitted.)
• “On this appeal appellants do not discuss or mention the above finding of their
bad faith, but argue that respondent was in default because its rental debt was
not extinguished within the three-day period as respondent tendered checks
instead of money, sent the checks by mail without checking delivery instead of
making personal tender and did not keep the tender alive by deposit in a bank as
provided by section 1500 of the Civil Code within the three-day period.
However, we think that the finding of bad faith, which is supported by the
evidence showing the facts, as stated hereinbefore, is of primary importance
where appellants try to enforce a forfeiture.” (Strom v. Union Oil Co. (1948) 88
Cal.App.2d 78, 81 [198 P.2d 347].)
• “With respect to appellants there is no doubt that they could have had timely
payment if they had so desired, but that they were intentionally evasive and
uncooperative, hoping thereby to induce some technical shortcoming on which to
terminate a lease which they thought disadvantageous.” (Strom, supra, 88
Cal.App.2d at pp. 83–84.)
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• “Appellants complain that respondent mailed checks for the rent instead of
tendering money in person. The lease does not contain any place or mode of
payment of rent. Payment of rent to the original lessor had been made by
mailing of checks to his assignee. Appellant was entitled to continue payment by
mailing of checks so long as he had not been notified that this form of payment
was no longer acceptable. . . . If the payment by mailing of check, a normal
mode of payment though not a legal tender, was not acceptable to appellants, as
it had been to their predecessors, they should have notified respondent to that
effect. Neither was respondent after the mailing under duty to take special
measures to check timely receipt of the checks. ‘The ordinary principles of
reason, common sense, and justice should govern in questions of this kind. The
lessee, in law, had a right to assume that the Post [O]ffice Department would do
its duty and deliver the envelop[e] containing the rent in due time, and that the
lessor would, in justice, accept such rent; and if for any reason it was not
received or delivered the lessee should, as a matter of ordinary fairness and
justice, be advised of such fact and have a chance to remedy the same.’ This
principle was held applicable even where the letter containing the rent was lost
in the mail. It must govern a fortiori here, where the mail functioned correctly
and the fact that the checks did not reach appellants was solely attributable to
circumstances for which they were responsible. No further action of any kind
could be expected from respondent until it was informed, by the return of the
unclaimed letter, of the fact that the payment had not been effectuated. If
respondent’s action is open to any criticism it would be that the deposit of the
rent in a bank . . . did not follow soon enough after the checks were returned
. . . . However the delay did not cause any prejudice or make any difference to
appellants as they had then already launched the action in unlawful detainer at
which they had been aiming ever since respondent refused increase of rent. The
shortcoming of respondent is trivial compared to appellants’ bad faith.” (Strom,
supra, 88 Cal.App.2d at p. 84.)
• “Nor does the rejection of the ‘tender’ that appellants made by letter,
unaccompanied by payment, and conditioned upon dismissal of the action, after
the action was brought, compel a finding of bad faith. It did not extinguish the
debt, since the procedure prescribed by Civil Code, section 1500, was not
followed. Nor was there a showing of continuous readiness to pay after the
tender.” (Budaeff v. Huber (1961) 194 Cal.App.2d 12, 21 [14 Cal.Rptr. 729].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 797
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 7.53–7.56
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) § 17.21
3 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.22
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
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4328. Affirmative Defense—Tenant Was Victim of Domestic
Violence, Sexual Assault, Stalking, Elder/Dependent Adult Abuse,
or Human Trafficking (Code Civ. Proc., § 1161.3)
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun] because [name of plaintiff] filed this lawsuit
based on [an] act[s] of [domestic violence/sexual assault/stalking/human
trafficking/ [or] abuse of an elder or dependent adult] against [[name of
defendant]/ [or] a member of [name of defendant]’s household]. To succeed
on this defense, [name of defendant] must prove all of the following:
1. That [[name of defendant]/ [or] a member of [name of defendant]’s
household] was a victim of [domestic violence/sexual
assault/stalking/human trafficking/ [or] abuse of an elder or
dependent adult];
2. That the act[s] of [domestic violence/sexual
assault/stalking/human trafficking/ [or] abuse of an elder or
dependent adult] [was/were] documented in a [court order/law
enforcement report/statement of a third party acting in a
professional capacity];
3. That the person who committed the act[s] of [domestic violence/
sexual assault/stalking/human trafficking/ [or] abuse of an elder
or dependent adult] is not also a tenant of the same living unit as
[name of defendant]; and
4. That [name of plaintiff] filed this lawsuit because of the act[s] of
[domestic violence/sexual assault/stalking/human trafficking/ [or]
abuse of an elder or dependent adult].
Even if [name of defendant] proves all of the above, [name of plaintiff]
may still evict [name of defendant] if [name of plaintiff] proves both of the
following:
1. [Either] [Name of defendant] allowed the person who committed
the act[s] of [domestic violence/sexual assault/stalking/human
trafficking/ [or] abuse of an elder or dependent adult] to visit the
property after [the taking of a police report/issuance of a court
order] against that person;
1. [or]
1. [Name of plaintiff] reasonably believed that the presence of the
person who committed the act[s] of [domestic violence/sexual
assault/stalking/human trafficking/ [or] abuse of an elder or
dependent adult] posed a physical threat to [other persons with a
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right to be on the property/[or] another tenant’s right of quiet
possession];
and
2. [Name of plaintiff] previously gave at least three days’ notice to
[name of defendant] to correct this situation.
New December 2011; Revised June 2013, June 2014, January 2019, May 2020
Directions for Use
This instruction is a tenant’s affirmative defense alleging that the tenant is being
evicted because the tenant was the victim of domestic violence, sexual assault,
stalking, human trafficking, or elder or dependent adult abuse. (See Code Civ. Proc.,
§ 1161.3.) If the tenant establishes the elements of the defense, the landlord may
attempt to establish a statutory exception that would allow the eviction. The last part
of the instruction sets forth the exception.
All protected statuses are defined by statute. (See Civ. Code, § 1708.7 [stalking];
Code Civ. Proc., § 1219 [sexual assault]; Fam. Code, § 6211 [domestic violence];
Pen. Code, § 236.1 [human trafficking]; Welf. & Inst. Code, § 15610.07 [abuse of
elder or dependent adult].) Consider an additional instruction defining the protected
status to make the meaning clear to the jury.
The acts of domestic violence, sexual assault, stalking, human trafficking, or elder or
dependent adult abuse must be documented in a court order, law enforcement report,
or tenant and qualified third-party statement (element 2). (Code Civ. Proc.,
§ 1161.3(a)(1)(C), (D).) A “qualified third party” is a health practitioner, domestic
violence counselor, a sexual assault counselor, or a human trafficking caseworker.
(Code Civ. Proc., § 1161.3(d)(3).)
Under the exception the tenant may be evicted if the landlord reasonably believes
that the presence of the perpetrator poses a physical threat to other tenants, guests,
invitees, or licensees, or to a tenant’s right to quiet possession pursuant to section
1927 of the Civil Code. (Code Civ. Proc., § 1161.3(b)(1)(B).) In the second option
for element 1 of the landlord’s response, this group has been expressed as “other
persons with a right to be on the property.” If more specificity is required, use the
appropriate words from the statute.
The tenant must prove that the perpetrator is not a tenant of the same “dwelling
unit” (see Code Civ. Proc., § 1161.3(a)(2)), which is expressed in element 3 as
“living unit.” Presumably, the legislative intent is to permit the perpetrator to be
evicted notwithstanding that the victim will be evicted also. The term “dwelling
unit” is not defined. In a multi-unit building, the policies underlying the statute
would support defining “dwelling unit” to include a single unit or apartment, but not
the entire building. Otherwise, the victim could be evicted if the perpetrator lives in
the same building but not the same apartment.
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Sources and Authority
• Defense to Termination of Tenancy: Tenant Was Victim of Domestic Violence,
Sexual Assault, Stalking, Elder/Dependent Adult Abuse, or Human Trafficking.
Code of Civil Procedure section 1161.3.
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 714
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 4-D, Other Issues,
¶ 4:240 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 5-G, Eviction
Controls, ¶ 5:288 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 8-D, Answer To
Unlawful Detainer Complaint, ¶ 8:297 et seq., 8:381.10 (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.41 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.64
(Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.28 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.76
(Matthew Bender)
1 Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 4,
Termination of Tenancy, 4.20B
1 Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.21
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4329. Affirmative Defense—Failure to Provide Reasonable
Accommodation
[Name of defendant] claims that [name of plaintiff] is not entitled to evict
[him/her/nonbinary pronoun] because [name of plaintiff] violated fair
housing laws by refusing to provide [[name of defendant]/a member of
[name of defendant]’s household] [a] reasonable accommodation[s] for
[his/her/nonbinary pronoun] disability as necessary to afford [him/her/
nonbinary pronoun] an equal opportunity to use and enjoy [a/an] [specify
nature of dwelling or public and common use area at issue, e.g., the
apartment building’s mail room].
To establish this defense, [name of defendant] must prove all of the
following:
1. That [[name of defendant]/a member of [name of defendant]’s
household] has a disability;
2. That [name of plaintiff] knew of, or should have known of, [[name
of defendant]/the member of [name of defendant]’s household]’s
disability;
3. That [[name of defendant]/a member of [name of defendant]’s
household/an authorized representative of [name of defendant]]
requested [an] accommodation[s] on behalf of [himself/herself/
nonbinary pronoun/name of defendant] [or] [another household
member with a disability];
4. That [an] accommodation[s] [was/were] necessary to afford
[[name of defendant]/a member of [name of defendant]’s household]
an equal opportunity to use and enjoy the [specify nature of
dwelling or public and common use area at issue, e.g., the apartment
building’s mail room]; and
5. [That [name of plaintiff] failed to provide the reasonable
accommodation[s]]
5. [or]
5. [That [name of plaintiff] failed to engage in the interactive process
to try to accommodate the disability].
New May 2021
Directions for Use
An individual with a disability may raise failure to provide a reasonable
accommodation as an affirmative defense to an unlawful detainer action. (Cal. Code
Regs., tit. 2, § 12176(c)(8)(A).) The individual with a disability seeking a reasonable
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accommodation must make a request for an accommodation. (Cal. Code Regs., tit.
2, § 12176(c)(1).) Such a request may be made by the individual with a disability, a
family member, or someone authorized by the individual with a disability to act on
the individual’s behalf. (Cal. Code Regs., tit. 2, § 12176(c)(2).)
A reasonable accommodation request that is made during a pending unlawful
detainer action is subject to the same regulations that govern reasonable
accommodation requests made at any other time. (Cal. Code Regs., tit. 2,
§ 12176(c)(8).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Association With Disabled Person Protected. Government Code section
12926(o).
• Reasonable Accommodations. California Code of Regulations, title 2, section
12176(a), (c).
• Reasonable Accommodation Requests in Unlawful Detainer Actions. Cal. Code
Regs., tit. 2, § 12176(c)(8).
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 977,
1062–1064
3 California Real Estate Law and Practice, Ch. 63, Duties and Liabilities of Brokers,
§ 63.121 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35, 115.92 (Matthew Bender)
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4330. Denial of Requested Accommodation
[Name of plaintiff] claims that the requested accommodation for [[name of
defendant]’s/a member of [name of defendant]’s household’s] disability was
properly denied because of an exception to [name of plaintiff]’s duty to
reasonably accommodate a tenant’s disability. To defeat [name of
defendant]’s accommodation defense, [name of plaintiff] must prove:
[Specify the provision(s) at issue from California Code of Regulations, title
2, section 12179, e.g., that the requested accommodation would impose an
undue financial and administrative burden on the plaintiff].
New November 2021
Directions for Use
This instruction is for use with CACI No. 4329, Affırmative Defense—Failure to
Provide Reasonable Accommodation. Give this instruction only if the plaintiff in an
unlawful detainer case claims that the requested accommodation was properly
denied. (See Cal. Code Regs., tit. 2, § 12179.) Include only factors from the
regulation that are at issue.
Sources and Authority
• Denial of Reasonable Accommodation in Unlawful Detainer Case. Title 2
California Code of Regulations section 12179.
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 734–738,
752
3 California Real Estate Law and Practice, Ch. 63, Duties and Liabilities of Brokers,
§ 63.121 (Matthew Bender)
4331–4339. Reserved for Future Use
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4340. Damages for Reasonable Rental Value
[Name of plaintiff] also claims that [he/she/nonbinary pronoun/it] was
harmed by [name of defendant]’s wrongful occupancy of the property. If
you decide that [name of defendant] wrongfully occupied the property,
you must also decide how much money will reasonably compensate
[name of plaintiff] for the harm. This compensation is called “damages.”
The amount of damages is the reasonable rental value of the premises
during the time [name of defendant] occupied the property after the
[ ]-day notice period expired. The amount agreed between the
parties as rent is evidence of the reasonable rental value of the property,
but you may award a greater or lesser amount based on all the evidence
presented during the trial.
[In determining the reasonable rental value of the premises, do not
consider any limitations on the amount of rent that can be charged
because of a local rent control ordinance.]
New August 2007
Directions for Use
In the second paragraph, insert the applicable number of days’ notice required,
whether 3, 30, 60, or some other number provided for in the lease. (Civ. Code,
§§ 1946, 1946.1; Code Civ. Proc., § 1161.)
Include the optional last paragraph if the property is subject to rent control.
Sources and Authority
• Damages. Code of Civil Procedure section 1174(b).
• “It is well established that losses sustained after termination of a tenancy may be
recovered, and that ‘damages awarded . . . in an unlawful detainer action for
withholding possession of the property are not “rent” but are in fact damages.’
Thus, a landlord is entitled to recover as damages the reasonable value of the
use of the premises during the time of the unlawful detainer either on a tort
theory or a theory of implied-in-law contract. It is also settled that rent control
regulations have no application to an award of damages for unlawfully
withholding property.” (Adler v. Elphick (1986) 184 Cal.App.3d 642, 649–650
[229 Cal.Rptr. 254], internal citations omitted.)
• “In unlawful detainer, recovery of possession is the main object and recovery of
rent a mere incident.” (Harris v. Bissell (1921) 54 Cal.App. 307, 313 [202 P.
453].)
• “It is well established that unlawful detainer actions are wholly created and
strictly controlled by statute in California. The ‘mode and measure of plaintiff’s
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recovery’ are limited by these statutes. The statutes prevail over inconsistent
general principles of law and procedure because of the special function of
unlawful detainer actions to restore immediate possession of real property.”
(Balassy v. Superior Court (1986) 181 Cal.App.3d 1148, 1151 [226 Cal.Rptr.
817], internal citations omitted.)
• “It is well settled that damages allowed in unlawful detainer proceedings are
only those which result from the unlawful detention and accrue during that time.
Although a lessee guilty of unlawful detention may have also breached the terms
of the lease contract, damages resulting therefrom are not necessarily damages
resulting from the unlawful detention. As such, he is precluded from litigating a
cause of action for these breaches in unlawful detainer proceedings.” (Vasey v.
California Dance Co. (1977) 70 Cal.App.3d 742, 748 [139 Cal.Rptr. 72],
original italics, internal citations omitted.)
• “[W]hen a 30-day notice is used to terminate a month-to-month tenancy, and any
default in the payment of rents to that time are not claimed in a 3-day notice to
pay rent or quit, the unlawful detainer proceeding thereon is not founded on a
default in the payment of rent within the meaning of section 1174, subdivision
(b); damages for the detention of the premises commencing with the end of the
tenancy may be recovered, but rents accrued and unpaid prior to the end of the
tenancy may not be recovered in that unlawful detainer proceeding.” (Castle
Park No. 5 v. Katherine (1979) 91 Cal.App.3d Supp. 6, 12 [154 Cal.Rptr. 498].)
• “ ‘If a tenant unlawfully detains possession after the termination of a lease, the
landlord is entitled to recover as damages the reasonable value of the use of the
premises during the time of such unlawful detainer. He is not entitled to recover
rent for the premises because the leasehold interest has ended.’ [¶] The amount
agreed between the parties as rent is evidence of the rental value of the property.
But, ‘[since] the action is not upon contract, but for recovery of possession and,
incidentally, for the damages occasioned by the unlawful detainer, such rental
value may be greater or less than the rent provided for in the lease.’ ” (Lehr v.
Crosby (1981) 123 Cal.App.3d Supp. 1, 9 [177 Cal.Rptr. 96], internal citations
and footnote omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 771
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 12.27–12.30, 13.19
2 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 26.5–26.12
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.94
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.27
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.13 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.22
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UNLAWFUL DETAINER CACI No. 4340
(Matthew Bender)
Miller & Starr, California Real Estate 4th § 19:208 (Thomson Reuters)
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4341. Statutory Damages on Showing of Malice (Code Civ. Proc.,
§ 1174(b))
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] is entitled to
statutory damages in addition to actual damages. To recover statutory
damages, [name of plaintiff] must prove that [name of defendant] acted
with malice.
A tenant acts with malice if the tenant willfully continues to occupy the
property with knowledge that the tenant no longer has the right to do so.
You must determine how much, if any, statutory damages should be
awarded, up to a maximum of $600. You should not award any statutory
damages if you find that [name of defendant] had a good-faith and a
reasonable belief in [his/her/nonbinary pronoun/its] right to continue to
occupy the premises.
New August 2007; Revised May 2020
Sources and Authority
• Statutory Damages on Showing of Malice. Code of Civil Procedure section
1174(b).
• “The rule appears to be well established in California that a lessee of real
property who wilfully, deliberately, intentionally and obstinately withholds
possession of the property, with knowledge of the termination of his lease and
against the will of the landlord, is liable for [statutory] damages.” (Erbe Corp. v.
W & B Realty Co. (1967) 255 Cal.App.2d 773, 780 [63 Cal.Rptr. 462].)
• “Authorities . . . do not hold that the [penalty should be imposed] where the
conduct of the tenant is characterized by good faith and a reasonable belief in
his right to remain . . . .” (Board of Public Service Comm’rs v. Spear (1924) 65
Cal.App. 214, 217–218 [223 P.423], internal citations omitted, overruled, other
grounds, Richard v. Degen & Brody, Inc. (1960) 181 Cal.App.2d 289, 302–304,
5 Cal.Rptr. 263.)
Secondary Sources
12 Witkin, Summary of California Law (10th ed. 2006) Real Property, § 738
2 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 12.32–12.34
2 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) § 26.13
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.95
(Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.27
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
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Eviction Actions, § 333.13 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.22
(Matthew Bender)
Miller & Starr, California Real Estate, Ch. 19, Landlord-Tenant, § 19:208 (Thomson
Reuters)
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4342. Reduced Rent for Breach of Habitability
If you find that there has been a substantial breach of habitability, then
you must find the reasonable reduced rental value of the property based
on the uninhabitable conditions. To find this value, take the amount of
monthly rent required by the [lease/rental agreement/sublease] and
reduce it by the [dollar amount/ [or] percent] that you consider to reflect
the uninhabitable conditions. Apply this reduction for the period of time,
up to present, that the conditions were present. [You may make different
reductions for different months if the conditions did not affect
habitability uniformly over that period of time.]
New December 2014
Directions for Use
Give this instruction if the court decides that the jury should determine the reduced
rental value of the premises based on a breach of the warranty of habitability. The
court may instruct the jury to find a dollar reduction or a percent reduction, or may
leave it up to the jury as to which approach to use. In this latter case, include both
bracketed options.
Give the optional last sentence if the condition would not cause uniform hardship
throughout the period. For example, the hardship caused by a broken furnace or air
conditioner would vary according to the weather.
Code of Civil Procedure section 1174.2(a) provides that the court is to determine
the reasonable rental value of the premises in its untenantable state up to the date of
trial. But whether this determination is to be made by the court or the jury is
unsettled. Section 1174.2(d) provides that nothing in this section is intended to deny
the tenant the right to a trial by jury. Subsection (d) could be interpreted to mean
that in a jury trial, wherever the statute says “the court,” it should be read as “the
jury.” But the statute also provides that the court may order the landlord to make
repairs and correct the conditions of uninhabitability, which would not be a jury
function.
Sources and Authority
• Breach of Warranty of Habitability. Code of Civil Procedure section 1174.2.
• “The second method suggested by Green [Green v. Superior Court (1974) 10
Cal.3d 616] is to first recognize the agreed contract rent as something the two
parties have agreed to as proper for the premises as impliedly warranted. Then
the court should take testimony and find on the percentage reduction of
habitability (or usability) by the tenant by reason of the subsequently ascertained
defects. Then reduce the agreed rent by this percentage, multiply the difference
by the number of months of occupancy and voila!—the tenant’s damages.”
(Cazares v. Ortiz (1980) 109 Cal.App.3d Supp. 23, 29 [168 Cal.Rptr. 108].)
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Secondary Sources
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 3-D, Tenant
Remedies, ¶ 3:82 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 3-E, Tenant
Remedies, ¶ 3:138 et seq. (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.95A
(Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.28 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.33, 5.36
4343–4399. Reserved for Future Use
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VF-4300. Termination Due to Failure to Pay Rent
We answer the questions submitted to us as follows:
1. Did [name of defendant] fail to make at least one rental payment
to [name of plaintiff] as required by the [lease/rental agreement/
sublease]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] properly give [name of defendant] a written
notice to pay the rent or vacate the property at least three days
before [date on which action was filed]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the amount due stated in the notice no more than the
amount that [name of defendant] actually owed?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] pay [or attempt to pay] the amount stated
in the notice within three days after service or receipt of the
notice?
4. Yes No
4. If your answer to question 4 is no, then answer questions 5 and 6.
If you answered yes, stop here, answer no further questions, and
have the presiding juror sign and date this form.
5. What is the amount of unpaid rent owed to [name of plaintiff]?
5. Include all amounts owed and unpaid from [due date of first
missed payment] through [date], the date of expiration of the
three-day notice.
Total Unpaid Rent: $ ]
6. What are [name of plaintiff]’s damages?
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6. Determine the reasonable rental value of the property from
[date], the date of expiration of the three-day notice, through
[date of verdict].
Total Damages: $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2007; Revised December 2010, June 2013, December 2013,
November 2019
Directions for Use
This verdict form is based on CACI No. 4302, Termination for Failure to Pay
Rent—Essential Factual Elements. See also the Directions for Use for that
instruction. Questions 2 and 3 incorporate the notice requirements set forth in CACI
No. 4303, Suffıciency and Service of Notice of Termination for Failure to Pay Rent.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
In question 4, include “or attempt to pay” if the tenant alleges that the landlord
refused to accept the rent when tendered. (See CACI No. 4327, Affırmative
Defense—Landlord’s Refusal of Rent.)
If the day of receipt is at issue and any of the three days after the alleged date of
receipt falls on a Saturday, Sunday, or judicial holiday, modify questions 2 and 4 to
allow the tenant three days excluding weekends and judicial holidays to cure the
default. (See Code Civ. Proc., § 1161(2).)
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VF-4301. Termination Due to Failure to Pay Rent—Affirmative
Defense—Breach of Implied Warranty of Habitability
We answer the questions submitted to us as follows:
1. Did [name of defendant] fail to make at least one rental payment
to [name of plaintiff] as required by the [lease/rental agreement/
sublease]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] properly give [name of defendant] a written
notice to pay the rent or vacate the property at least three days
before [date on which action was filed]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was the amount due stated in the notice no more than the
amount that [name of defendant] actually owed under the [lease/
rental agreement/sublease]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] pay [or attempt to pay] the amount stated
in the notice within three days after service or receipt of the
notice?
4. Yes No
4. If your answer to question 4 is no, then answer questions 5 and 6.
If you answered yes, stop here, answer no further questions, and
have the presiding juror sign and date this form.
5. What is the amount of unpaid rent that [name of defendant] would
owe to [name of plaintiff] if the property was in a habitable
condition?
5. Include all amounts owed and unpaid from [due date of first
missed payment] through [date], the date of expiration of the
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three-day notice.
Total Unpaid Rent: $ ]
6. Did the [name of plaintiff] fail to provide substantially habitable
premises during the time period for which [name of defendant]
failed to pay the rent that was due?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, answer question 8.
7. Did [name of defendant] contribute substantially to the
uninhabitable conditions or interfere substantially with [name of
plaintiff]’s ability to make necessary repairs?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If you
answered no, [stop here, answer no further questions, and have
the presiding juror sign and date this form. The court will
determine the amount by which the rent due found in question 5
should be reduced because of uninhabitable conditions/skip
question 8 and answer question 9].
8. What are [name of plaintiff]’s damages?
8. Determine the reasonable rental value of the property from
[date], the date of expiration of the three-day notice, through
[date of verdict].
Total Damages: $
[9. What is the amount of reduced monthly rent that represents the
reasonable rental value of the property in its uninhabitable
condition?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
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VF-4301 UNLAWFUL DETAINER
New December 2007; Revised December 2010, June 2013, December 2013,
November 2019
Directions for Use
This verdict form is based on CACI No. 4302, Termination for Failure to Pay
Rent—Essential Factual Elements, and CACI No. 4320, Affırmative
Defense—Implied Warranty of Habitability. See also the Directions for Use for those
instructions.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the existence of a landlord-tenant relationship is at issue, additional preliminary
questions will be needed based on elements 1 and 2 of CACI No. 4302. Questions 2
and 3 incorporate the notice requirements set forth in CACI No. 4303, Suffıciency
and Service of Notice of Termination for Failure to Pay Rent.
In question 4, include “or attempt to pay” if there is evidence that the landlord
refused to accept the rent when tendered. (See CACI No. 4327, Affırmative
Defense—Landlord’s Refusal of Rent.)
If the day of receipt is at issue and any of the three days after the alleged date of
receipt falls on a Saturday, Sunday, or judicial holiday, modify questions 2 and 4 to
allow the tenant three days excluding weekends and judicial holidays to cure the
default.
Code of Civil Procedure section 1174.2(a) provides that the court is to determine the
reasonable rental value of the premises in its untenantable state to the date of trial.
But whether this determination is to be made by the court or the jury is unsettled.
Section 1174.2(d) provides that nothing in this section is intended to deny the tenant
the right to a trial by jury. Subsection (d) could be interpreted to mean that in a jury
trial, wherever the statute says “the court,” it should be read as “the jury.” But the
statute also provides that the court may order the landlord to make repairs and
correct the conditions of uninhabitability, which would not be a jury function. If the
court decides to present this issue to the jury, select “skip question 8 and answer
question 9” in the transitional language following question 7, and include question
9.
As noted above, if a breach of habitability is found, the court may order the
landlord to make repairs and correct the conditions that constitute a breach. (Code
Civ. Proc., § 1174.2(a).) The court might include a special interrogatory asking the
jury to identify those conditions that it found to create uninhabitability and the dates
on which the conditions existed.
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VF-4302. Termination Due to Violation of Terms of
Lease/Agreement
We answer the questions submitted to us as follows:
1. Did [name of defendant] fail to [insert description of alleged failure
to perform] as required by the [lease/rental agreement/sublease]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of defendant]’s failure to [insert description of alleged
failure to perform] a substantial breach of [an] important
obligation[s] under the [lease/rental agreement/sublease]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] properly give [name of defendant] a written
notice to [either [describe action to correct failure to perform] or]
vacate the property at least three days before [date on which
action was filed]?
3. Yes No
3. [If your answer to question 3 is yes, then answer question 4. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.]
[4. Did [name of defendant] [describe action to correct failure to
perform] within three days after service or receipt of the notice?]
[4. Yes No
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2007; Revised December 2010, June 2013, November 2019
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Directions for Use
This verdict form is based on CACI No. 4304, Termination for Violation of Terms of
Lease/Agreement—Essential Factual Elements. See also the Directions for Use for
that instruction. Question 3 incorporates the notice requirements set forth in CACI
No. 4305, Suffıciency and Service of Notice of Termination for Violation of Terms of
Agreement.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Include question 4 if the breach can be cured.
If the day of receipt is at issue and any of the three days after the alleged date of
receipt falls on a Saturday, Sunday, or judicial holiday, modify questions 3 and 4 to
allow the tenant three days excluding weekends and judicial holidays to cure the
default.
VF-4303–VF-4399. Reserved for Future Use
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TRADE SECRETS
4400. Misappropriation of Trade Secrets—Introduction
4401. Misappropriation of Trade Secrets—Essential Factual Elements
4402. “Trade Secret” Defined
4403. Secrecy Requirement
4404. Reasonable Efforts to Protect Secrecy
4405. Misappropriation by Acquisition
4406. Misappropriation by Disclosure
4407. Misappropriation by Use
4408. Improper Means of Acquiring Trade Secret
4409. Remedies for Misappropriation of Trade Secret
4410. Unjust Enrichment
4411. Punitive Damages for Willful and Malicious Misappropriation
4412. “Independent Economic Value” Explained
4413–4419. Reserved for Future Use
4420. Affirmative Defense—Information Was Readily Ascertainable by Proper
Means
4421. Affirmative Defense—Statute of Limitations—Three-Year Limit (Civ. Code,
§ 3426.6)
4422–4499. Reserved for Future Use
VF-4400. Misappropriation of Trade Secrets
VF-4401–VF-4499. Reserved for Future Use
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4400. Misappropriation of Trade Secrets—Introduction
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] [is/was] the
[owner/licensee] of [insert general description of alleged trade secret[s]].
[Name of plaintiff] claims that [this/these] [select short term to describe,
e.g., information] [is/are] [a] trade secret[s] and that [name of defendant]
misappropriated [it/them]. “Misappropriation” means the improper
[acquisition/use/ [or] disclosure] of the trade secret[s].
[Name of plaintiff] also claims that [name of defendant]’s misappropriation
caused [[him/her/nonbinary pronoun/it] harm/ [or] [name of defendant] to
be unjustly enriched].
[Name of defendant] denies [insert denial of any of the above claims].
[[Name of defendant] also claims [insert affırmative defenses].]
New December 2007; Revised December 2010
Directions for Use
This instruction is designed to introduce the jury to the issues involved in a case
involving the misappropriation of trade secrets under the California Uniform Trade
Secrets Act. (See Civ. Code, § 3426.1 et seq.) It should be read before the
instructions on the substantive law.
In the first sentence, provide only a general description of the alleged trade secrets.
Then in the second sentence, select a short term to identify the items, such as
“information,” “customer lists,” or “computer code.” The items that are alleged to
be trade secrets will be described with more specificity in CACI No. 4401,
Misappropriation of Trade Secrets—Essential Factual Elements.
Select the appropriate term, “owner” or “licensee,” to indicate the plaintiff’s interest
in the alleged trade secrets. No reported California state court decision has
addressed whether a licensee has a sufficient interest to assert a claim of trade secret
misappropriation. These instructions take no position on this issue. The court should
make a determination whether the plaintiff has the right as a matter of substantive
law to maintain a cause of action for misappropriation of trade secrets if that issue
is disputed.
Civil Code section 3426.1(b)(1) defines “misappropriation” as improper
“[a]cquisition” of a trade secret, and subsection (b)(2) defines it as improper
“[d]isclosure or use” of a trade secret. In some cases, the mere acquisition of a trade
secret, as distinguished from a related disclosure or use, will not result in damages
and will only be relevant to injunctive relief. Because generally the jury should be
instructed only on matters relevant to damage claims, do not select “acquiring” in
the second paragraph unless there is evidence that the acquisition resulted in
damages, other than damages from related disclosure or use.
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To avoid confusion, instruct the jury only on the particular theory of
misappropriation applicable under the facts of the case. For example, the jury should
not be instructed on misappropriation through “use” if the plaintiff does not assert
that the defendant improperly used the trade secrets. Nor should the jury be
instructed on a particular type of “use” if that type of “use” is not asserted and
supported by the evidence.
In the third paragraph, select the nature of the recovery sought, either damages for
harm to the plaintiff or for the defendant’s unjust enrichment, or both.
Include the last paragraph if the defendant asserts any affirmative defenses.
Sources and Authority
• Uniform Trade Secrets Act: Definitions. Civil Code section 3426.1.
• “[W]e agree with the federal cases applying California law, which hold that
section 3426.7, subdivision (b), preempts common law claims that are ‘based on
the same nucleus of facts as the misappropriation of trade secrets claim for
relief.’ Depending on the particular facts pleaded, the statute can operate to
preempt the specific common claims asserted here: breach of confidence,
interference with contract, and unfair competition.” (K.C. Multimedia, Inc. v.
Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939,
958–959 [90 Cal.Rptr.3d 247], internal citation omitted.)
• “ ‘ “Trade secret law promotes the sharing of knowledge, and the efficient
operation of industry; it permits the individual inventor to reap the rewards of
his labor by contracting with a company large enough to develop and exploit it.”
[Citation.]’ ‘Trade secret law also helps maintain “standards of commercial ethics
. . . .” [Citation.] . . . By sanctioning the acquisition, use, and disclosure of
another’s valuable, proprietary information by improper means, trade secret law
minimizes “the inevitable cost to the basic decency of society when one . . .
steals from another.” [Citation.] In doing so, it recognizes that “ ‘good faith and
honest, fair dealing, is the very life and spirit of the commercial world.’ ” ’ ”
(Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226
Cal.App.4th 26, 42 [171 Cal.Rptr.3d 714], internal citations omitted.)
• “[W]e find no support for [a current-ownership] rule in the text of the CUTSA,
cases applying it, or legislative history. Nor do we find any evidence of such a
rule in patent or copyright law, which defendants have cited by analogy.
Defendants have offered no persuasive argument from policy for our adoption of
such a rule.” (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th
980, 986 [103 Cal.Rptr.3d 426].)
• “[T]he only California authority [defendant] cited for the asserted requirement
[that a trade-secrets plaintiff must own the trade secret when the action is filed]
was the official California pattern jury instructions—whose ‘first element,’
[defendant] asserted, ‘requires the plaintiff to be either the owner or the licensee
of the trade secret. See CACI Nos. 4400, 4401.’ [Defendant] did not quote the
cited instructions—for good reason. The most that can be said in favor of its
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reading is that the broader and less specific of the two instructions uses the
present tense to refer to the requirement of ownership. That instruction, whose
avowed purpose is ‘to introduce the jury to the issues involved’ in a trade secrets
case (Directions for Use for CACI No. 4400), describes the plaintiff as claiming
that he ‘is’ the owner/licensee of the trade secrets underlying the suit. (CACI No.
4400.) The second instruction, which enumerates the actual elements of the
plaintiff’s cause of action, dispels whatever weak whiff of relevance this use of
the present tense might have. It requires the plaintiff to prove that he ‘owned’ or
‘was a licensee of’ the trade secrets at issue. (CACI No. 4401, italics added.)
Given only these instructions to go on, one would suppose that past
ownership—i.e., ownership at the time of the alleged misappropriation—is
sufficient to establish this element.” (Jasmine Networks, Inc., supra, 180
Cal.App.4th at p. 997, original italics.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 83
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, § 1.01 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.50 et seq. (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103 (Matthew Bender)
1 Zamore, Business Torts, Ch. 17, Trade Secrets, § 17.05 et seq. (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Chs. 1, 2, 6, 12
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4401. Misappropriation of Trade Secrets—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] has misappropriated a
trade secret. To succeed on this claim, [name of plaintiff] must prove all
of the following:
1. That [name of plaintiff] [owned/was a licensee of] [the
following:][describe each item claimed to be a trade secret that is
subject to the misappropriation claim];
2. That [this/these] [select short term to describe, e.g., information]
[was/were] [a] trade secret[s] at the time of the misappropriation;
3. That [name of defendant] improperly [acquired/used/ [or]
disclosed] the trade secret[s];
4. That [[name of plaintiff] was harmed/ [or] [name of defendant] was
unjustly enriched]; and
5. That [name of defendant]’s [acquisition/use/ [or] disclosure] was a
substantial factor in causing [[name of plaintiff]’s harm/ [or] [name
of defendant] to be unjustly enriched].
New December 2007; Revised December 2010, December 2014
Directions for Use
In element 1, specifically describe all items that are alleged to be the trade secrets
that were misappropriated. (See Altavion, Inc. v. Konica Minolta Systems
Laboratory, Inc. (2014) 226 Cal.App.4th 26, 43 [171 Cal.Rptr.3d 714].) If more than
one item is alleged, include “the following” and present the items as a list. Then in
element 2, select a short term to identify the items, such as “information,”
“customer lists,” or “computer code.”
In element 1, select the appropriate term, “owned” or “was a licensee of,” to
indicate the plaintiff’s interest in the alleged trade secrets. No reported California
state court decision has addressed whether a licensee has a sufficient interest to
assert a claim of trade secret misappropriation. These instructions take no position
on this issue. The court should make a determination whether the plaintiff has the
right as a matter of substantive law to maintain a cause of action for
misappropriation of trade secrets if that issue is disputed.
Read also CACI No. 4402, “Trade Secret” Defined, to give the jury guidance on
element 2.
Civil Code section 3426.1(b)(1) defines “misappropriation” as improper
“[a]cquisition” of a trade secret, and subsection (b)(2) defines it as improper
“[d]isclosure or use” of a trade secret. In some cases, the mere acquisition of a trade
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secret, as distinguished from a related disclosure or use, will not result in damages
and will only be relevant to injunctive relief. Because generally the jury should be
instructed only on matters relevant to damage claims, do not select “acquired” in
element 3 or “acquisition” in element 5 unless there is evidence that the acquisition
resulted in damages, other than damages from related disclosure or use.
To avoid confusion, instruct the jury only on the particular theory of
misappropriation applicable under the facts of the case. For example, the jury should
not be instructed on misappropriation through “use” if the plaintiff does not assert
that the defendant improperly used the trade secrets. Nor should the jury be
instructed on a particular type of “use” if that type of “use” is not asserted and
supported by the evidence.
Give also CACI No. 4409, Remedies for Misappropriation of Trade Secret.
Sources and Authority
• Uniform Trade Secrets Act: Definitions. Civil Code section 3426.1.
• Trade Secrets Must Be Identified With Reasonable Particularity. Code of Civil
Procedure section 2019.210.
• “A trade secret is misappropriated if a person (1) acquires a trade secret knowing
or having reason to know that the trade secret has been acquired by ‘improper
means,’ (2) discloses or uses a trade secret the person has acquired by ‘improper
means’ or in violation of a nondisclosure obligation, (3) discloses or uses a trade
secret the person knew or should have known was derived from another who
had acquired it by improper means or who had a nondisclosure obligation or (4)
discloses or uses a trade secret after learning that it is a trade secret but before a
material change of position.” (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135
Cal.App.4th 21, 66 [37 Cal.Rptr.3d 221].)
• “A cause of action for monetary relief under CUTSA may be said to consist of
the following elements: (1) possession by the plaintiff of a trade secret; (2) the
defendant’s misappropriation of the trade secret, meaning its wrongful
acquisition, disclosure, or use; and (3) resulting or threatened injury to the
plaintiff. The first of these elements is typically the most important, in the sense
that until the content and nature of the claimed secret is ascertained, it will likely
be impossible to intelligibly analyze the remaining issues.” (Silvaco Data
Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 220 [109 Cal.Rptr.3d 27],
internal citations omitted.)
• “A cause of action for misappropriation of trade secrets requires a plaintiff to
show the plaintiff owned the trade secret; at the time of misappropriation, the
information was a trade secret; the defendant improperly acquired, used, or
disclosed the trade secret; the plaintiff was harmed; and the defendant’s
acquisition, use, or disclosure of the trade secret was a substantial factor in
causing the plaintiff harm.” (AMN Healthcare, Inc. v. Aya Healthcare Services,
Inc. (2018) 28 Cal.App.5th 923, 942 [239 Cal.Rptr.3d 577] [citing CACI].)
• “It is critical to any [UTSA] cause of action—and any defense—that the
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information claimed to have been misappropriated be clearly identified.
Accordingly, a California trade secrets plaintiff must, prior to commencing
discovery, ‘identify the trade secret with reasonable particularity.’ ” (Altavion,
Inc., supra, 226 Cal.App.4th at p. 43.)
• “We find the trade secret situation more analogous to employment discrimination
cases. In those cases, as we have seen, information of the employer’s intent is in
the hands of the employer, but discovery affords the employee the means to
present sufficient evidence to raise an inference of discriminatory intent. The
burden of proof remains with the plaintiff, but the defendant must then bear the
burden of producing evidence once a prima facie case for the plaintiff is made.
[¶] We conclude that the trial court correctly refused the proposed instruction
that would have shifted the burden of proof.” (Sargent Fletcher, Inc. v. Able
Corp. (2003) 110 Cal.App.4th 1658, 1674 [3 Cal.Rptr.3d 279], internal citation
omitted.)
• “[W]e find no support for [a current-ownership] rule in the text of the CUTSA,
cases applying it, or legislative history. Nor do we find any evidence of such a
rule in patent or copyright law, which defendants have cited by analogy.
Defendants have offered no persuasive argument from policy for our adoption of
such a rule.” (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th
980, 986 [103 Cal.Rptr.3d 426].)
• “[T]he only California authority [defendant] cited for the asserted requirement
[that a trade-secrets plaintiff must own the trade secret when the action is filed]
was the official California pattern jury instructions—whose ‘first element,’
[defendant] asserted, ‘requires the plaintiff to be either the owner or the licensee
of the trade secret. See CACI Nos. 4400, 4401.’ [Defendant] did not quote the
cited instructions—for good reason. The most that can be said in favor of its
reading is that the broader and less specific of the two instructions uses the
present tense to refer to the requirement of ownership. That instruction, whose
avowed purpose is ‘to introduce the jury to the issues involved’ in a trade secrets
case (Directions for Use for CACI No. 4400), describes the plaintiff as claiming
that he ‘is’ the owner/licensee of the trade secrets underlying the suit. (CACI No.
4400.) The second instruction, which enumerates the actual elements of the
plaintiff’s cause of action, dispels whatever weak whiff of relevance this use of
the present tense might have. It requires the plaintiff to prove that he ‘owned’ or
‘was a licensee of’ the trade secrets at issue. (CACI No. 4401, italics added.)
Given only these instructions to go on, one would suppose that past
ownership—i.e., ownership at the time of the alleged misappropriation—is
sufficient to establish this element.” (Jasmine Networks, Inc., supra, 180
Cal.App.4th at p. 997, original italics.)
Secondary Sources
Gaab and Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, § 1.01 (Matthew Bender)
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Zamore, Business Torts, Ch. 17, Trade Secrets, § 17.05 et seq. (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.51 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Chs. 1, 2, 6, 10, 11, 12
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4402. “Trade Secret” Defined
To prove that the [select short term to describe, e.g., information] [was/
were] [a] trade secret[s], [name of plaintiff] must prove all of the
following:
1. That the [e.g., information] [was/were] secret;
2. That the [e.g., information] had actual or potential independent
economic value because [it was/they were] secret; and
3. That [name of plaintiff] made reasonable efforts to keep the [e.g.,
information] secret.
New December 2007; Revised April 2008
Directions for Use
Give also CACI No. 4403, Secrecy Requirement, if more explanation of element 1 is
needed. Give CACI No. 4412, “Independent Economic Value” Explained, if more
explanation of element 2 is needed. Give CACI No. 4404, Reasonable Efforts to
Protect Secrecy, if more explanation of element 3 is needed.
Sources and Authority
• “Trade Secret” Defined. Civil Code section 3426.1(d).
• “ ‘Trade secrets are a peculiar kind of property. Their only value consists in their
being kept private.’ Thus, ‘the right to exclude others is central to the very
definition of the property interest. Once the data that constitute a trade secret are
disclosed to others, or others are allowed to use those data, the holder of the
trade secret has lost his property interest in the data.’ ” (DVD Copy Control
Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 881 [4 Cal.Rptr.3d 69, 75 P.3d 1],
internal citations omitted.)
• “The ‘test for a trade secret is whether the matter sought to be protected is
information (1) that is valuable because it is unknown to others and (2) that the
owner has attempted to keep secret. [Citation.] . . . [I]n order to qualify as a
trade secret, the information “must be secret, and must not be of public
knowledge or of a general knowledge in the trade or business.” ’ ” (AMN
Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 943
[239 Cal.Rptr.3d 577].)
• “[A]ny information (such as price concessions, trade discounts and rebate
incentives) disclosed to [cross-complainant’s] customers cannot be considered
trade secret or confidential.” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th
1443, 1455 [125 Cal.Rptr.2d 277].)
• “ ‘[A] trade secret . . . has an intrinsic value which is based upon, or at least
preserved by, being safeguarded from disclosure.’ Public disclosure, that is the
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absence of secrecy, is fatal to the existence of a trade secret. ‘If an individual
discloses his trade secret to others who are under no obligation to protect the
confidentiality of the information, or otherwise publicly discloses the secret, his
property right is extinguished.’ A person or entity claiming a trade secret is also
required to make ‘efforts that are reasonable under the circumstances to maintain
its secrecy.’ ” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292,
304 [116 Cal.Rptr.2d 833], internal citations omitted.)
• “The requirement that a customer list must have economic value to qualify as a
trade secret has been interpreted to mean that the secrecy of this information
provides a business with a ‘substantial business advantage.’ In this respect, a
customer list can be found to have economic value because its disclosure would
allow a competitor to direct its sales efforts to those customers who have already
shown a willingness to use a unique type of service or product as opposed to a
list of people who only might be interested.” (Morlife, Inc. v. Perry (1997) 56
Cal.App.4th 1514, 1522 [66 Cal.Rptr.2d 731], internal citations omitted.)
• “The sine qua non of a trade secret, then, is the plaintiff’s possession of
information of a type that can, at the possessor’s option, be made known to
others, or withheld from them, i.e., kept secret. This is the fundamental
difference between a trade secret and a patent. A patent protects an idea, i.e., an
invention, against appropriation by others. Trade secret law does not protect
ideas as such. Indeed a trade secret may consist of something we would not
ordinarily consider an idea (a conceptual datum) at all, but more a fact (an
empirical datum), such as a customer’s preferences, or the location of a mineral
deposit. In either case, the trade secret is not the idea or fact itself, but
information tending to communicate (disclose) the idea or fact to another. Trade
secret law, in short, protects only the right to control the dissemination of
information.” (Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210,
220–221 [109 Cal.Rptr.3d 27], original italics.)
• “[I]f a patentable idea is kept secret, the idea itself can constitute information
protectable by trade secret law. In that situation, trade secret law protects the
inventor’s ‘right to control the dissemination of information’—the information
being the idea itself—rather than the subsequent use of the novel technology,
which is protected by patent law. In other words, trade secret law may be used
to sanction the misappropriation of an idea the plaintiff kept secret.” (Altavion,
Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26,
55−56 [171 Cal.Rptr.3d 714], original italics, internal citations omitted.)
• “[T]he doctrine has been established that a trade secret can include a system
where the elements are in the public domain, but there has been accomplished an
effective, successful and valuable integration of the public domain elements and
the trade secret gave the claimant a competitive advantage which is protected
from misappropriation.” (Altavion, Inc., supra, 226 Cal.App.4th at p. 48.)
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Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, §§ 89, 90
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
Trade Secrets Practice in California (Cont.Ed.Bar 2d ed.) §§ 4.8–4.10
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, § 1.01 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.52 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4][a] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Ch. 1
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4403. Secrecy Requirement
The secrecy required to prove that something is a trade secret does not
have to be absolute in the sense that no one else in the world possesses
the information. It may be disclosed to employees involved in [name of
plaintiff]’s use of the trade secret as long as they are instructed to keep
the information secret. It may also be disclosed to nonemployees if they
are obligated to keep the information secret. However, it must not have
been generally known to the public or to people who could obtain value
from knowing it.
New December 2007
Directions for Use
Read this instruction with CACI No. 4402, “Trade Secret” Defined, to give the jury
additional guidance on the secrecy requirement of element 1 of that instruction.
Sources and Authority
• “ ‘Trade secrets are a peculiar kind of property. Their only value consists in their
being kept private.’ Thus, ‘the right to exclude others is central to the very
definition of the property interest. Once the data that constitute a trade secret are
disclosed to others, or others are allowed to use those data, the holder of the
trade secret has lost his property interest in the data.’ ” (DVD Copy Control
Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 881 [4 Cal.Rptr.3d 69, 75 P.3d 1],
internal citations omitted.)
• “[T]he test for a trade secret is whether the matter sought to be protected is
information (1) that is valuable because it is unknown to others and (2) that the
owner has attempted to keep secret. . . . [I]n order to qualify as a trade secret,
the information ‘must be secret, and must not be of public knowledge or of a
general knowledge in the trade or business.’ ” (DVD Copy Control Assn., Inc. v.
Bunner (2004) 116 Cal.App.4th 241, 251 [10 Cal.Rptr.3d 185], internal citations
omitted.)
• “The secrecy requirement is generally treated as a relative concept and requires a
fact-intensive analysis. Widespread, anonymous publication of the information
over the Internet may destroy its status as a trade secret. The concern is whether
the information has retained its value to the creator in spite of the publication.”
(DVD Copy Control Assn., Inc., supra, 116 Cal.App.4th at p. 251, internal
citations omitted.)
• “[A]ny information (such as price concessions, trade discounts and rebate
incentives) disclosed to [cross-complainant’s] customers cannot be considered
trade secret or confidential.” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th
1443, 1455 [125 Cal.Rptr.2d 277].)
• “ ‘[A] trade secret . . . has an intrinsic value which is based upon, or at least
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preserved by, being safeguarded from disclosure.’ Public disclosure, that is the
absence of secrecy, is fatal to the existence of a trade secret. ‘If an individual
discloses his trade secret to others who are under no obligation to protect the
confidentiality of the information, or otherwise publicly discloses the secret, his
property right is extinguished.’ A person or entity claiming a trade secret is also
required to make ‘efforts that are reasonable under the circumstances to maintain
its secrecy.’ ” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292,
304 [116 Cal.Rptr.2d 833], internal citations omitted.)
• “ ‘[R]easonable efforts to maintain secrecy have been held to include advising
employees of the existence of a trade secret, limiting access to a trade secret on
‘need to know basis,’ and controlling plant access.’ ” (Courtesy Temporary
Service, Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1288 [272 Cal.Rptr.
352].)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, §§ 89, 90
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
Trade Secrets Practice in California (Cont.Ed.Bar 2d ed.) §§ 4.2–4.10
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, § 1.03 (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.52 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) § 1.03(3), (4)
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4404. Reasonable Efforts to Protect Secrecy
To establish that the [select short term to describe, e.g., information] [is/
are] [a] trade secret[s], [name of plaintiff] must prove that
[he/she/nonbinary pronoun/it] made reasonable efforts under the
circumstances to keep it secret. “Reasonable efforts” are the efforts that
would be made by a reasonable [person/business] in the same situation
and having the same knowledge and resources as [name of plaintiff],
exercising due care to protect important information of the same kind.
[This requirement applies separately to each item that [name of plaintiff]
claims to be a trade secret.]
In determining whether or not [name of plaintiff] made reasonable efforts
to keep the [e.g., information] secret, you should consider all of the facts
and circumstances. Among the factors you may consider are the
following:
[a. Whether documents or computer files containing the [e.g.,
information] were marked with confidentiality warnings;]
[b. Whether [name of plaintiff] instructed [his/her/nonbinary pronoun/
its] employees to treat the [e.g., information] as confidential;]
[c. Whether [name of plaintiff] restricted access to the [e.g.,
information] to persons who had a business reason to know the
information;]
[d. Whether [name of plaintiff] kept the [e.g., information] in a
restricted or secured area;]
[e. Whether [name of plaintiff] required employees or others with
access to the [e.g., information] to sign confidentiality or
nondisclosure agreements;]
[f. Whether [name of plaintiff] took any action to protect the specific
[e.g., information], or whether it relied on general measures taken
to protect its business information or assets;]
[g. The extent to which any general measures taken by [name of
plaintiff] would prevent the unauthorized disclosure of the [e.g.,
information];]
[h. Whether there were other reasonable measures available to [name
of plaintiff] that [he/she/nonbinary pronoun/it] did not take;]
[i. Specify other factor(s).]
The presence or absence of any one or more of these factors is not
necessarily determinative.
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New December 2007
Directions for Use
Give this instruction with CACI No. 4402, “Trade Secret” Defined, to guide the
jury with regard to element 3 of that instruction, that the plaintiff made reasonable
efforts to keep the information secret. Read only the factors supported by the
evidence in the case. Use factor i to present additional factors.
Sources and Authority
• “Reasonable efforts to maintain secrecy have been held to include advising
employees of the existence of a trade secret, limiting access to a trade secret on
‘need to know basis,’ and controlling plant access. [¶] . . . Requiring employees
to sign confidentiality agreements is a reasonable step to ensure secrecy.” (Whyte
v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1454 [125 Cal.Rptr.2d 277,
internal citations omitted.)
• “A person or entity claiming a trade secret is also required to make ‘efforts that
are reasonable under the circumstances to maintain its secrecy.’ A leading treatise
has collected the cases of successful and unsuccessful claims of secrecy
protection; among the factors repeatedly noted are restricting access and physical
segregation of the information, confidentiality agreements with employees, and
marking documents with warnings or reminders of confidentiality.” (In re
Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 304 [116 Cal.Rptr.2d
833], referring to Trade Secrets Practice in California (Cont.Ed.Bar 2d ed.)
§§ 4.9–4.10.)
• “In addition to possessing actual or potential economic value, the other part of
the definition of a trade secret is that the information must have been protected
by ‘efforts that are reasonable under the circumstances to maintain its secrecy.’
[W]hether a party claiming a trade secret undertook reasonable efforts to
maintain secrecy is a question of fact, and it may be implicit in a determination
that the information does not qualify as a trade secret, also a question of fact.”
(In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 306, internal
citations omitted.)
Secondary Sources
Advising California Employers and Employees (Cont.Ed.Bar) Ch. 11, Reasonable
Effort to Maintain Secrecy, § 11.6
Trade Secrets Practice in California (Cont.Ed.Bar 2d ed.) §§ 4.9–4.10
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, §§ 1.03–1.05 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.52 (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) § 1.03(4)
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4405. Misappropriation by Acquisition
[Name of defendant] misappropriated [name of plaintiff]’s trade secret[s]
by acquisition if [name of defendant] acquired the trade secret[s] and
knew or had reason to know that [he/she/nonbinary pronoun/it/[name of
third party]] used improper means to acquire [it/them].
New December 2007
Directions for Use
Read this instruction with CACI No. 4401, Misappropriation of Trade
Secrets—Essential Factual Elements, if the plaintiff claims that the defendant’s
acquisition of the information alleged to be a trade secret is a misappropriation.
Give also CACI No. 4408, Improper Means of Acquiring Trade Secret.
Civil Code section 3426.1(b)(1) defines “misappropriation” as improper
“[a]cquisition” of a trade secret, and subsection (b)(2) defines it as improper
“[d]isclosure or use” of a trade secret. In some cases, the mere acquisition of a trade
secret, as distinguished from a related disclosure or use, will not result in damages
and will only be relevant to injunctive relief. Because generally the jury should only
be instructed on matters relevant to damage claims, this instruction should not be
given unless there is evidence that the acquisition resulted in damages, other than
damages from related disclosure or use.
Sources and Authority
• “Misappropriation” Defined. Civil Code section 3426.1(b)(1).
• “Defendants . . . obtained these secrets improperly. Their tortious acts resulted
from a breach of confidence by [defendant] in copying or stealing plans, designs
and other documents related to [plaintiff]’s products which defendants
themselves wanted to produce in competition with [plaintiff]. The protection
which is extended to trade secrets fundamentally rests upon the theory that they
are improperly acquired by a defendant, usually through theft or a breach of
confidence.” (Vacco Indus. v. Van Den Berg (1992) 5 Cal.App.4th 34, 50 [6
Cal.Rptr.2d 602].)
• “One does not ordinarily ‘acquire’ a thing inadvertently; the term implies
conduct directed to that objective. The choice of that term over ‘receive’
suggests that inadvertently coming into possession of a trade secret will not
constitute acquisition. Thus one who passively receives a trade secret, but neither
discloses nor uses it, would not be guilty of misappropriation. We need not
decide the outer limits of acquisition as contemplated by CUTSA, however, for
there is no suggestion here of acquisition even in the broadest sense, i.e., that
[defendant] ever came into possession of the source code constituting the
claimed trade secrets. Indeed [plaintiff] does not directly argue that [defendant]
acquired the trade secrets at issue but only that, under the terms of the statute, it
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could have done so without itself having ‘knowledge’ of them. We doubt the
soundness of this suggestion, but assuming it is correct, it remains beside the
point unless [defendant] came into possession of the secret. Since there is no
basis to find that it did, the mental state required for actionable acquisition
appears to be academic.” (Silvaco Data Systems v. Intel Corp. (2010) 184
Cal.App.4th 210, 223 [109 Cal.Rptr.3d 27], internal citations omitted.)
Secondary Sources
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.53[1][a] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4][c] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Chs. 2, 6, 12
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4406. Misappropriation by Disclosure
[Name of defendant] misappropriated [name of plaintiff]’s trade secret[s]
by disclosure if [name of defendant]
1. disclosed [it/them] without [name of plaintiff]’s consent; and
2. [did any of the following:]
2. [insert one or more of the following:]
2. [acquired knowledge of the trade secret[s] by improper means][./;
or]
2. [at the time of disclosure, knew or had reason to know that [his/
her/nonbinary pronoun/its] knowledge of [name of plaintiff]’s trade
secret[s] came from or through [name of third party], and that
[name of third party] had previously acquired the trade secret[s]
by improper means][./; or]
2. [at the time of disclosure, knew or had reason to know that [his/
her/nonbinary pronoun/its] knowledge of [name of plaintiff]’s trade
secret[s] was acquired [insert circumstances giving rise to duty to
maintain secrecy], which created a duty to keep the [select short
term to describe, e.g., information] secret][./; or]
2. [at the time of disclosure, knew or had reason to know that [his/
her/nonbinary pronoun/its] knowledge of [name of plaintiff]’s trade
secret[s] came from or through [name of third party], and that
[name of third party] had a duty to [name of plaintiff] to keep the
[e.g., information] secret][./; or]
2. [before a material change of [his/her/nonbinary pronoun/its]
position, knew or had reason to know that [it was/they were] [a]
trade secret[s] and that knowledge of [it/them] had been acquired
by accident or mistake.]
New December 2007; Revised December 2010
Directions for Use
Read this instruction with CACI No. 4401, Misappropriation of Trade
Secrets—Essential Factual Elements, if the plaintiff claims that the defendant’s
disclosure of the information alleged to be a trade secret is a misappropriation.
If consent is at issue, CACI No. 1302, Consent Explained, and CACI No. 1303,
Invalid Consent, may also be given.
In element 2, select the applicable statutory act(s) alleged to constitute
misappropriation by disclosure. (See Civ. Code, § 3624.1(b)(2).) If only one act is
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selected, omit the words “did any of the following.”
If either of the first two acts constituting misappropriation by disclosure is alleged,
give also CACI No. 4408, Improper Means of Acquiring Trade Secret.
Sources and Authority
• “Misappropriation” Defined. Civil Code section 3426.1(b)(2).
• Constructive Notice. Civil Code section 19.
• “The fact that [defendant]’s postings were not of the ‘entire secret,’ and included
only portions of courses, does not mean that [defendant]’s disclosures are not
misappropriations. While previous partial disclosures arguably made public only
those parts disclosed, [defendant]’s partial disclosures of non-public portions of
the secrets may themselves be actionable because they constitute ‘disclosure . . .
without . . . consent by a person who . . . knew or had reason to know that his
. . . knowledge of the trade secret was . . . [either] derived from or through a
person who had utilized improper means to acquire it [or] acquired under
circumstances giving rise to a duty to maintain its secrecy or limit its use.’ ”
(Religious Tech. Ctr. v. Netcom On-Line Commun. Servs. (N.D. Cal. 1995) 923
F.Supp. 1231, 1257, fn. 31.)
• “Under the UTSA, simple disclosure or use may suffice to create liability. It is
no longer necessary, if it ever was, to prove that the purpose to which the
acquired information is put is outweighed by the interests of the trade secret
holder or that use of a trade secret cannot be prohibited if it is infeasible to do
so.” (Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1527 [66 Cal.Rptr.2d
731].)
• “[N]othing in the UTSA requires that the defendant gain any advantage from the
disclosure; it is sufficient to show ‘use’ by disclosure of a trade secret with
actual or constructive knowledge that the secret was acquired under
circumstances giving rise to a duty to maintain its secrecy.” (Religious Tech. Ctr.,
supra, 923 F.Supp. at p. 1257, fn. 31.)
• “Liability under CUTSA is not dependent on the defendant’s ‘comprehension’ of
the trade secret but does require ‘knowledge’ of it.” (Silvaco Data Systems v.
Intel Corp. (2010) 184 Cal.App.4th 210, 229 [109 Cal.Rptr.3d 27].)
• “ ‘Knowledge,’ of course, is ‘[t]he fact or condition of knowing,’ . . . and in this
context, ‘[t]he fact of knowing a thing, state, etc. . . .’ (8 Oxford English Dict.,
supra, p. 517.) To ‘know’ a thing is to have information of that thing at one’s
command, in one’s possession, subject to study, disclosure, and exploitation. To
say that one ‘knows’ a fact is also to say that one possesses information of that
fact. Thus, although the Restatement Third of Unfair Competition does not
identify knowledge of the trade secret as an element of a trade secrets cause of
action, the accompanying comments make it clear that liability presupposes the
defendant’s ‘possession’ of misappropriated information.” (Silvaco, supra, 184
Cal.App.4th at pp. 225–226, original italics.)
• “The record contains no evidence that [defendant] ever possessed or had
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knowledge of any source code connected with either [software product]. So far
as the record shows, [defendant] never had access to that code, could not
disclose any part of it to anyone else, and had no way of using it to write or
improve code of its own. [Defendant] appears to have been in substantially the
same position as the customer in the pie shop who is accused of stealing the
secret recipe because he bought a pie with knowledge that a rival baker had
accused the seller of using the rival’s stolen recipe. The customer does not, by
buying or eating the pie, gain knowledge of the recipe used to make it.”
(Silvaco, supra, 184 Cal.App.4th at p. 226.)
• “When a competitor hires a former employee of plaintiff who is likely to
disclose trade secrets, ‘[i]t is a question of fact whether the competitor had
constructive notice of the plaintiff’s right in the secret.’ ” (Ralph Andrews
Productions, Inc. v. Paramount Pictures Corp. (1990) 222 Cal.App.3d 676,
682–683 [271 Cal.Rptr. 797], internal citation omitted.)
Secondary Sources
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.53[1][b] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4][c] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Chs. 2, 6, 12
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
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4407. Misappropriation by Use
[Name of defendant] misappropriated [name of plaintiff]’s trade secret[s]
by use if [name of defendant]
1. used [it/them] without [name of plaintiff]’s consent; and
2. [did any of the following:]
2. [insert one or more of the following:]
2. [acquired knowledge of the trade secret[s] by improper means][./;
or]
2. [at the time of use, knew or had reason to know that [his/her/
nonbinary pronoun/its] knowledge of [name of plaintiff]’s trade
secret[s] came from or through [name of third party], and that
[name of third party] had previously acquired the trade secret[s]
by improper means][./; or]
2. [at the time of use, knew or had reason to know that [his/her/
nonbinary pronoun/its] knowledge of [name of plaintiff]’s trade
secret[s] was acquired under circumstances creating a legal
obligation to limit use of the [select short term to describe, e.g.,
information]][./; or]
2. [at the time of use, knew or had reason to know that [his/her/
nonbinary pronoun/its] knowledge of [name of plaintiff]’s trade
secret[s] came from or through [name of third party], and that
[name of third party] had a duty to [name of plaintiff] to limit use
of the [e.g., information]][./; or]
2. [before a material change of [his/her/nonbinary pronoun/its]
position, knew or had reason to know that [it was/they were] [a]
trade secret[s] and that knowledge of [it/them] had been acquired
by accident or mistake.]
New December 2007; Revised December 2010
Directions for Use
Read this instruction with CACI No. 4401, Misappropriation of Trade
Secrets—Essential Factual Elements, if the plaintiff claims that the defendant’s use
of the information alleged to be a trade secret is a misappropriation.
If consent is at issue, CACI No. 1302, Consent Explained, and CACI No. 1303,
Invalid Consent, may also be given.
In element 2, select the applicable statutory act(s) alleged to constitute
misappropriation by use. (See Civ. Code, § 3624.1(b)(2).) If only one act is selected,
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omit the words “did any of the following.”
If either of the first two acts constituting misappropriation by disclosure is alleged,
give also CACI No. 4408, Improper Means of Acquiring Trade Secret.
Sources and Authority
• “Misapproriation” Defined. Civil Code section 3426.1(b)(2).
• Constructive Notice. Civil Code section 19.
• “Under the plain terms of the Uniform Trade Secrets Act, defendants may be
personally liable if: they used, through the corporation, [plaintiff]’s trade secrets;
at the time of the use of the confidential information they knew or had reason to
know that knowledge of the trade secrets was derived from or through a person
who had improperly acquired the knowledge, or the secrets were obtained by a
person who owed a duty to plaintiffs to maintain the secrecy. Employing the
confidential information in manufacturing, production, research or development,
marketing goods that embody the trade secret, or soliciting customers through
the use of trade secret information, all constitute use. Use of a trade secret
without knowledge it was acquired by improper means does not subject a person
to liability unless the person receives notice that its use of the information is
wrongful.” (PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1383 [93
Cal.Rptr.2d 663], internal citations omitted.)
• “Under the UTSA, simple disclosure or use may suffice to create liability. It is
no longer necessary, if it ever was, to prove that the purpose to which the
acquired information is put is outweighed by the interests of the trade secret
holder or that use of a trade secret cannot be prohibited if it is infeasible to do
so.” (Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1527 [66 Cal.Rptr.2d
731].)
• “One clearly engages in the ‘use’ of a secret, in the ordinary sense, when one
directly exploits it for his own advantage, e.g., by incorporating it into his own
manufacturing technique or product. But ‘use’ in the ordinary sense is not
present when the conduct consists entirely of possessing, and taking advantage
of, something that was made using the secret. One who bakes a pie from a
recipe certainly engages in the ‘use’ of the latter; but one who eats the pie does
not, by virtue of that act alone, make ‘use’ of the recipe in any ordinary sense,
and this is true even if the baker is accused of stealing the recipe from a
competitor, and the diner knows of that accusation. Yet this is substantially the
same situation as when one runs software that was compiled from allegedly
stolen source code. The source code is the recipe from which the pie (executable
program) is baked (compiled). Nor is the analogy weakened by the fact that a
diner is not ordinarily said to make ‘use’ of something he eats. His metabolism
may be said to do so, or the analogy may be adjusted to replace the pie with an
instrument, such as a stopwatch. A coach who employs the latter to time a race
certainly makes ‘use’ of it, but only a sophist could bring himself to say that
coach ‘uses’ trade secrets involved in the manufacture of the watch.” (Silvaco
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Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 224 [109 Cal.Rptr.3d
27].)
• “Liability under CUTSA is not dependent on the defendant’s ‘comprehension’ of
the trade secret but does require ‘knowledge’ of it. So far as the record shows,
[defendant] did not know and had no way to get the information constituting the
trade secret. It therefore could not, within the contemplation of the act, ‘use’ that
information.” (Silvaco Data Systems, supra, 184 Cal.App.4th at p. 229.)
• “ ‘Knowledge,’ of course, is ‘[t]he fact or condition of knowing,’ . . . and in this
context, ‘[t]he fact of knowing a thing, state, etc. . . .’ (8 Oxford English Dict.,
supra, p. 517.) To ‘know’ a thing is to have information of that thing at one’s
command, in one’s possession, subject to study, disclosure, and exploitation. To
say that one ‘knows’ a fact is also to say that one possesses information of that
fact. Thus, although the Restatement Third of Unfair Competition does not
identify knowledge of the trade secret as an element of a trade secrets cause of
action, the accompanying comments make it clear that liability presupposes the
defendant’s ‘possession’ of misappropriated information.” (Silvaco Data Systems,
supra, 184 Cal.App.4th at pp. 225–226, original italics.)
• “When a competitor hires a former employee of plaintiff who is likely to
disclose trade secrets, ‘[i]t is a question of fact whether the competitor had
constructive notice of the plaintiff’s right in the secret.’ ” (Ralph Andrews
Productions, Inc. v. Paramount Pictures Corp. (1990) 222 Cal.App.3d 676,
682–683 [271 Cal.Rptr. 797], internal citation omitted.)
• “Our Supreme Court has previously distinguished solicitation—which is
actionable—from announcing a job change—which is not: ‘Merely informing
customers of one’s former employer of a change of employment, without more,
is not solicitation. Neither does the willingness to discuss business upon
invitation of another party constitute solicitation on the part of the invitee.
Equity will not enjoin a former employee from receiving business from the
customers of his former employer, even though the circumstances be such that
he should be prohibited from soliciting such business.’ ” (Hilb v. Robb (1995) 33
Cal.App.4th 1812, 1821 [39 Cal.Rptr. 2d 887], internal citation omitted; but see
Morlife, Inc., supra, 56 Cal.App.4th at p. 1527, fn. 8 [“we need not decide
whether the ‘professional announcement’ exception . . . has continued vitality in
light of the expansive definition of misappropriation under the UTSA”].)
• “[T]o prove misappropriation of a trade secret under the UTSA, a plaintiff must
establish (among other things) that the defendant improperly ‘used’ the plaintiff’s
trade secret. Thus, under Evidence Code sections 500 and 520, the plaintiff bears
the burden of proof on that issue, both at the outset and during trial.” (Sargent
Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1668 [3 Cal.Rptr.3d
279], internal citation omitted.)
• “[I]nformation relative to customers (e.g., their identities, locations, and
individual preferences), obtained by a former employee in his contacts with them
during his employment, may amount to ‘trade secrets’ which will warrant his
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being enjoined from exploitation or disclosure after leaving the employment. [¶]
It is equally clear, however, that the proscriptions inhibiting the ex-employee
reach only his use of such information, not to his mere possession or knowledge
of it.” (Golden State Linen Service, Inc. v. Vidalin (1977) 69 Cal.App.3d 1, 7–8
[137 Cal.Rptr. 807], internal citations omitted.)
• “Since these ‘Marks’ likely encompass any trade secrets, it is reasonable to
conclude that one party’s use of the trade secrets that affects the other party’s
rights in the mark would constitute the misappropriation of the trade secrets ‘of
another.’ ” (Morton v. Rank Am., Inc. (C.D. Cal. 1993) 812 F.Supp. 1062, 1074
[one can misappropriate trade secret jointly owned with another].)
Secondary Sources
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.53[1][b] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4][c] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Chs. 2, 6, 12
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
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4408. Improper Means of Acquiring Trade Secret
Improper means of acquiring a trade secret or knowledge of a trade
secret include, but are not limited to, [theft/bribery/misrepresentation/
breach or inducing a breach of a duty to maintain secrecy/ [or]
wiretapping, electronic eavesdropping, [or] [insert other means of
espionage]].
[However, it is not improper to acquire a trade secret or knowledge of
the trade secret by [any of the following]:
[1. Independent efforts to invent or discover the information;]
[2. Reverse engineering; that is, examining or testing a product to
determine how it works, by a person who has a right to possess
the product;]
[3. Obtaining the information as a result of a license agreement with
the owner of the information;]
[4. Observing the information in public use or on public display;]
[or]
[5. Obtaining the information from published literature, such as
trade journals, reference books, the Internet, or other publicly
available sources.]]
New December 2007
Directions for Use
In the first paragraph, include only those statutory examples of “improper means”
supported by the evidence. (See Civ. Code, § 3426.1(a).) The option for
“wiretapping, eavesdropping, [or] [insert other means of espionage]” expresses the
statutory term “espionage.”
Include the optional last paragraph if any of those methods of obtaining the
information are supported by the evidence. Omit any methods that are not at issue.
If only one is at issue, omit “any of the following.”
Sources and Authority
• “Improper Means” Defined. Civil Code section 3426.1(a).
• Electronic Eavesdropping. Penal Code section 630.
• “The Restatement of Torts, Section 757, Comment (f), notes: ‘A complete
catalogue of improper means is not possible,’ but Section 1(1) includes a partial
listing. Proper means include: 1. Discovery by independent invention; 2.
Discovery by “reverse engineering,” that is, by starting with the known product
and working backward to find the method by which it was developed. The
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acquisition of the known product must of course, also be by a fair and honest
means, such as purchase of the item on the open market for reverse engineering
to be lawful; 3. Discovery under a license from the owner of the trade secret; 4.
Observation of the item in public use or on public display; 5. Obtaining the trade
secret from published literature. . . . [T]he assertion that a matter is readily
ascertainable by proper means remains available as a defense to a claim of
misappropriation. Information is readily ascertainable if it is available in trade
journals, reference books, or published materials.” (Civ. Code, § 3426.1, Legis.
Comm. Comment (Senate), 1984 Addition.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 83
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-A ¶ 10:250 (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.53[1][b] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4][b] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) § 2.01(D)
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4409. Remedies for Misappropriation of Trade Secret
If [name of plaintiff] proves that [name of defendant] misappropriated [his/
her/nonbinary pronoun/its] trade secret[s], then [name of plaintiff] is
entitled to recover damages if the misappropriation caused [[name of
plaintiff] to suffer an actual loss/ [or] [name of defendant] to be unjustly
enriched].
[If [name of defendant]’s misappropriation did not cause [[name of
plaintiff] to suffer an actual loss/ [or] [name of defendant] to be unjustly
enriched], [name of plaintiff] may still be entitled to a reasonable royalty
for no longer than the period of time the use could have been prohibited.
However, I will calculate the amount of any royalty.]
New December 2007
Directions for Use
Give this instruction with CACI No. 4401, Misappropriation of Trade
Secrets—Essential Factual Elements, in all cases.
Select the nature of the recovery sought; either for the plaintiff’s actual loss or for
the defendant’s unjust enrichment, or both. If the plaintiff’s claim of actual injury or
loss is based on lost profits, give CACI No. 3903N, Lost Profits (Economic
Damage). If unjust enrichment is alleged, give CACI No. 4410, Unjust Enrichment.
If neither actual loss nor unjust enrichment is provable, Civil Code section
3426.3(b) provides for a third, alternate remedy: a reasonable royalty for no longer
than the period of time the use could have been prohibited. Both the statute and
case law indicate that the question of a reasonable royalty should not be presented
to the jury. (See Civ. Code, § 3426.3(b) [the court may order the payment of a
reasonable royalty]; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612,
628 [12 Cal.Rptr.2d 741]; see also Civ. Code, § 3426.2(b) [court may issue an
injunction that conditions future of a trade secret on payment of a reasonable
royalty].) However, no reported California state court case has directly held that
“reasonable royalty” issues should not be presented to the jury. (But see Unilogic,
Inc., supra, 10 Cal.App.4th at p. 627.) Include the optional second paragraph if the
court wants to advise the jury that even if it finds that the plaintiff suffered no actual
loss and that the defendant was not unjustly enriched, the plaintiff may still be
entitled to some recovery.
For simplicity, this instruction uses the term “damages” to refer to both actual loss
and unjust enrichment, even though, strictly speaking, unjust enrichment may be
considered a form of restitution rather than damages.
Sources and Authority
• Remedies for Misappropriation of Trade Secret. Civil Code section 3426.3.
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• “Under subdivision (a), a complainant may recover damages for the actual loss
caused by misappropriation, as well as for any unjust enrichment not taken into
account in computing actual loss damages. Subdivision (b) provides for an
alternative remedy of the payment of royalties from future profits where ‘neither
damages nor unjust enrichment caused by misappropriation [is] provable.’ ”
(Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 61 [37
Cal.Rptr.3d 221].)
• “[B]ased on the plain language of the statute, the Court—not the
jury—determines if and in what amount a royalty should be awarded. See Cal.
Civ. Code section 3416.3(b) (‘the Court may order payment of a reasonable
royalty’).” (FAS Techs. v. Dainippon Screen Mfg. (N.D. Cal. 2001) 2001 U.S.
Dist. LEXIS 15444, **9–10.)
• “To adopt a reasonable royalty as the measure of damages is to adopt and
interpret, as well as may be, the fiction that a license was to be granted at the
time of beginning the infringement, and then to determine what the license price
should have been. In effect, the court assumes the existence ab initio of, and
declares the equitable terms of, a supposititious license, and does this nunc pro
tunc; it creates and applies retrospectively a compulsory license.” (Altavion, Inc.
v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 68 [171
Cal.Rptr.3d 714], original italics.)
• “Nor was it necessary to submit the liability issue to the jury in order to allow
the trial court thereafter to determine a reasonable royalty or to impose an
injunction. Just as [cross complainant] presented no evidence of the degree of
[cross defendant]’s enrichment, [cross complainant] likewise presented no
evidence that would allow the court to determine what royalty, if any, would be
reasonable under the circumstances.” (Unilogic, Inc. supra, 10 Cal.App.4th at p.
628.)
• “It is settled that, in fashioning a pecuniary remedy under the CUTSA for past
use of a misappropriated trade secret, the trial court may order a reasonable
royalty only where ‘neither actual damages to the holder of the trade secret nor
unjust enrichment to the user is provable.’ ‘California law differs on this point
from both the [Uniform Act] and Federal patent law, neither of which require[s]
actual damages and unjust enrichment to be unprovable before a reasonable
royalty may be imposed.’ ” (Ajaxo Inc. v. E*Trade Financial Corp. (2010) 187
Cal.App.4th 1295, 1308 [115 Cal.Rptr.3d 168], internal citations omitted.)
• “[W]here a defendant has not realized a profit or other calculable benefit as a
result of his or her misappropriation of a trade secret, unjust enrichment is not
provable within the meaning of section 3426.3, subdivision (b), whether the lack
of benefit is determined as a matter of law or as a matter of fact. To hold
otherwise would place the risk of loss on the wronged plaintiff, thereby
discouraging innovation and potentially encouraging corporate thievery where
anticipated profits might be minimal but other valuable but nonmeasureable
benefits could accrue.” (Ajaxo Inc., supra, 187 Cal.App.4th at p. 1313 [jury’s
finding that defendant did not profit from its misappropriation of trade secrets
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means that unjust enrichment is not “provable” within the meaning of section
3426.3(b)].)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, §§ 92–93
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-E ¶¶ 10:370–10:372 (The Rutter Group)
1 Milgrim on Trade Secrets, Ch. 15, Trial Considerations, § 15.02 (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.54 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[6], [7] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Ch. 11
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4410. Unjust Enrichment
[Name of defendant] was unjustly enriched if [his/her/nonbinary pronoun/
its] misappropriation of [name of plaintiff]’s trade secret[s] caused [name
of defendant] to receive a benefit that [he/she/nonbinary pronoun/it]
otherwise would not have achieved.
To decide the amount of any unjust enrichment, first determine the value
of [name of defendant]’s benefit that would not have been achieved except
for [his/her/nonbinary pronoun/its] misappropriation. Then subtract from
that amount [name of defendant]’s reasonable expenses[, including the
value of the [specify categories of expenses in evidence, such as labor,
materials, rents, interest on invested capital]]. [In calculating the amount of
any unjust enrichment, do not take into account any amount that you
included in determining any amount of damages for [name of plaintiff]’s
actual loss.]
New December 2007
Directions for Use
Give this instruction with CACI No. 4409, Remedies for Misappropriation of Trade
Secrets, if unjust enrichment is alleged and supported by the evidence. If it would
be helpful to the jury, specify the categories of expenses to be allowed to the
defendant. Include the last sentence if both actual loss and unjust enrichment are
alleged.
Sources and Authority
• Remedies for Misappropriation of Trade Secret. Civil Code section 3426.3.
• “In general, ‘[a] person who has been unjustly enriched at the expense of
another is required to make restitution to the other.’ (Rest., Restitution, § 1.)
‘Ordinarily the benefit to the one and the loss to the other are co-extensive, and
the result . . . is to compel the one to surrender the benefit which he has
received and thereby to make restitution to the other for the loss which he has
suffered.’ [¶] ‘In other situations, a benefit has been received by the defendant
but the plaintiff has not suffered a corresponding loss or, in some cases, any loss,
but nevertheless the enrichment of the defendant would be unjust. In such cases,
the defendant may be under a duty to give to the plaintiff the amount by which
he has been enriched.’ ” (Unilogic, Inc. v. Burroughs Corp. (1992) 10
Cal.App.4th 612, 627–628 [12 Cal.Rptr.2d 741].)
• “A defendant’s unjust enrichment is typically measured by the defendant’s profits
flowing from the misappropriation. A defendant’s profits often represent profits
the plaintiff would otherwise have earned. Where the plaintiff’s loss does not
correlate directly with the misappropriator’s benefit, . . . the problem becomes
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more complex. There is no standard formula to measure it. A defendant’s unjust
enrichment might be calculated based upon cost savings or increased
productivity resulting from use of the secret. Increased market share is another
way to measure the benefit to the defendant. Recovery is not prohibited just
because the benefit cannot be precisely measured. But like any other pecuniary
remedy, there must be some reasonable basis for the computation.” (Ajaxo Inc. v.
E*Trade Financial Corp. (2010) 187 Cal.App.4th 1295, 1305 [115 Cal.Rptr.3d
168], footnote and internal citations omitted.)
• “[W]here a defendant has not realized a profit or other calculable benefit as a
result of his or her misappropriation of a trade secret, unjust enrichment is not
provable within the meaning of section 3426.3, subdivision (b), whether the lack
of benefit is determined as a matter of law or as a matter of fact.” (Altavion, Inc.
v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 66 [171
Cal.Rptr.3d 714].)
• “Another crucial point is that unjust enrichment, as the phrase is used here, is, in
effect, synonymous with restitution. ‘ “ ‘The phrase “unjust enrichment” is used
in law to characterize the result or effect of a failure to make restitution of or for
property or benefits received under such circumstances as to give rise to a legal
or equitable obligation to account therefor.’ ” ’ ” (Ajaxo Inc., supra, 187
Cal.App.4th at p. 1305, internal citations omitted.)
• Restatement of Restitution, section 1, comment a, states: “A person is enriched if
he has received a benefit (see Comment b). A person is unjustly enriched if the
retention of the benefit would be unjust (see Comment c).”
• Restatement of Restitution, section 1, comment b, states: “What constitutes a
benefit. A person confers a benefit upon another if he gives to the other
possession of or some other interest in money, land, chattels, or choses in action,
performs services beneficial to or at the request of the other, satisfies a debt or a
duty of the other, or in any way adds to the other’s security or advantage. He
confers a benefit not only where he adds to the property of another, but also
where he saves the other from expense or loss. The word ‘benefit,’ therefore,
denotes any form of advantage. The advantage for which a person ordinarily
must pay is pecuniary advantage; it is not, however, necessarily so limited, as
where a physician attends an insensible person who is saved subsequent pain or
who receives thereby a greater chance of living.”
• Restatement of Restitution, section 1, comment c, states: “Unjust retention of
benefit. Even where a person has received a benefit from another, he is liable to
pay therefor only if the circumstances of its receipt or retention are such that, as
between the two persons, it is unjust for him to retain it. The mere fact that a
person benefits another is not of itself sufficient to require the other to make
restitution therefor. Thus, one who improves his own land ordinarily benefits his
neighbors to some extent, and one who makes a gift or voluntarily pays money
which he knows he does not owe confers a benefit; in neither case is he entitled
to restitution. The Restatement of this Subject states the rules by which it is
determined whether or not it is considered to be just to require restitution.”
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Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 93
1 Milgrim on Trade Secrets, Ch. 13, Issues Prior to Commencement of Action,
§ 13.03[2][a] (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.54[4] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[7][b] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) § 11.03
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4411. Punitive Damages for Willful and Malicious
Misappropriation
If you decide that [name of defendant]’s misappropriation caused [name of
plaintiff] harm, you must decide whether that conduct justifies an award
of punitive damages. The purposes of punitive damages are to punish a
wrongdoer for the conduct that harmed [name of plaintiff] and to
discourage similar conduct in the future.
In order to recover punitive damages, [name of plaintiff] must prove [by
clear and convincing evidence] that [name of defendant] acted willfully
and maliciously. You must determine whether [name of defendant] acted
willfully and maliciously, but you will not be asked to determine the
amount of any punitive damages. I will calculate the amount later.
“Willfully” means that [name of defendant] acted with a purpose or
willingness to commit the act or engage in the conduct in question, and
the conduct was not reasonable under the circumstances at the time and
was not undertaken in good faith.
“Maliciously” means that [name of defendant] acted with an intent to
cause injury, or that [name of defendant]’s conduct was despicable and
was done with a willful and knowing disregard for the rights of others.
“Despicable conduct” is conduct so vile, base, or wretched that it would
be looked down on and despised by ordinary decent people. [Name of
defendant] acted with knowing disregard if [he/she/nonbinary pronoun/it]
was aware of the probable consequences of [his/her/nonbinary pronoun/
its] conduct and deliberately failed to avoid those consequences.
New December 2007
Directions for Use
Give this instruction if there is evidence that the defendant acted willfully and
maliciously, so as to support an award of punitive damages. (See Civ. Code,
§ 3426.3(c).)
No reported California state court case has addressed whether the jury or the court
should decide whether any misappropriation was “willful and malicious,” and if so,
whether the finding must be made by clear and convincing evidence rather than a
preponderance of the evidence. In Ajaxo Inc. v. E*Trade Group Inc. (2005) 135
Cal.App.4th 21, 66 [37 Cal.Rptr.3d 221], the court affirmed a jury’s finding by clear
and convincing evidence that the defendant’s misappropriation was willful and
malicious. If the court decides to require the “clear and convincing” standard,
include the bracketed language in the first paragraph and also give CACI No. 201,
Highly Probable—Clear and Convincing Proof.
Once the jury finds “willful and malicious” conduct, it appears that the court should
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decide the amount of punitive damages. (See Robert L. Cloud & Assocs. v. Mikesell
(1999) 69 Cal.App.4th 1141, 1151, fn. 8 [82 Cal.Rptr.2d 143].). This would be
consistent with the Uniform Trade Secrets Act, on which the California Uniform
Trade Secrets Act is based. (See Uniform Trade Secrets Act § 3, 2005 com. [“This
provision follows federal patent law in leaving discretionary trebling to the judge
even though there may be a jury, compare 35 U.S.C. Section 284 (1976)”].)
Sources and Authority
• Exemplary Damages for Willful and Malicious Misappropriation. Civil Code
section 3426.3(c).
• Attorney Fees and Costs. Civil Code section 3426.4.
• “The court instructed the jury that ‘willful’ means ‘a purpose or willingness to
commit the act or engage in the conduct in question, and the conduct was not
reasonable under the circumstances then present and was not undertaken in good
faith.’ Further, the court instructed the jury that ‘malice’ means ‘conduct which is
intended by the defendant to cause injury to the plaintiff or despicable conduct
which is carried on by the defendant with a willful and conscious disregard for
the rights of others when the defendant is aware [of] the probable consequences
of its conduct and willfully and deliberately fails to avoid those consequences.
Despicable conduct is conduct which is so vile and wretched that it would be
looked down upon and despised by ordinary decent people.’ In addition, the
court instructed the jury that a finding of willful and malicious misappropriation
must be supported by clear and convincing evidence. [¶] Our Supreme Court has
recognized that malice may be proven either expressly by direct evidence
probative of the existence of hatred or ill will, or by implication from indirect
evidence from which the jury may draw inferences.” (Ajaxo Inc., supra, 135
Cal.App.4th at pp. 66–67, internal citations and footnote omitted.)
• “The limitation on punitive damages under the UTSA to twice the compensatory
damages does not create an equivalency between an award of punitive damages
under the UTSA and an award of treble damages under another statutory
scheme. . . . While an award of treble damages is equally punitive in its effect,
the computation of the penalty is strictly mechanical. In contrast, an award of
punitive damages under the UTSA is subject to no fixed standard; the statute
merely sets a cap on the amount of the award. The trial court retains wide
discretion to set the amount anywhere between zero and two times the actual
loss. (§ 3426.3, subd. (c).) Thus, evidence of the defendant’s financial condition
remains essential for evaluating whether the amount of punitive damages
actually awarded is appropriate.” (Robert L. Cloud & Assocs. supra, 69
Cal.App.4th at p. 1151, fn. 8.)
• “In order to justify [attorney] fees under Civil Code section 3426.4, the court
must find that a ‘willful and malicious misappropriation’ occurred. That
requirement is satisfied, in our view, by the jury’s determination, upon clear and
convincing evidence, that defendants’ acts of misappropriation were done with
malice. This finding was necessary to the award of punitive damages which was
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made by the jury.” (Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th
34, 54 [6 Cal.Rptr.2d 602].)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 93
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 10(II)-E ¶¶ 10:385–10:388 (The Rutter Group)
1 Milgrim on Trade Secrets, Ch. 15, Trial Considerations, § 15.02[3][i] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.54[5] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[7][c] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) § 11.05
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4412. “Independent Economic Value” Explained
[Select short term to describe, e.g., Information] has independent economic
value if it gives the owner an actual or potential business advantage over
others who do not know the [e.g., information] and who could obtain
economic value from its disclosure or use.
In determining whether [e.g., information] had actual or potential
independent economic value because it was secret, you may consider the
following:
(a) The extent to which [name of plaintiff] obtained or could obtain
economic value from the [e.g., information] in keeping [it/them]
secret;
(b) The extent to which others could obtain economic value from the
[e.g., information] if [it were/they were] not secret;
(c) The amount of time, money, or labor that [name of plaintiff]
expended in developing the [e.g., information];
(d) The amount of time, money, or labor that [would be/was] saved
by a competitor who used the [e.g., information];
[(e) [Insert other applicable factors].]
The presence or absence of any one or more of these factors is not
necessarily determinative.
New April 2008
Directions for Use
Give this instruction to further explain element 2 of CACI No. 4402, “Trade
Secret” Defined. Inapplicable factors may be omitted.
Sources and Authority
• “Trade Secret” Defined. Civil Code section 3426.1(d).
• “[I]t is not true that evidence of ‘some’ helpfulness or usefulness, if credited,
would compel a finding of independent economic value. The Restatement defines
trade secret as business or technical information ‘that is sufficiently valuable and
secret to afford an actual or potential economic advantage over others.’ (Rest.3d,
Unfair Competition, § 39.) The advantage ‘need not be great,’ but must be ‘more
than trivial.’ (Rest.3d, Unfair Competition, § 39, com. e, p. 430.) Merely stating
that information was helpful or useful to another person in carrying out a
specific activity, or that information of that type may save someone time, does
not compel a factfinder to conclude that the particular information at issue was
‘sufficiently valuable . . . to afford an . . . economic advantage over others.’
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(Rest.3d, Unfair Competition, § 39.) The factfinder is entitled to expect evidence
from which it can form some solid sense of how useful the information is, e.g.,
how much time, money, or labor it would save, or at least that these savings
would be ‘more than trivial.’ (Rest.3d., Unfair Competition, § 39, com. e.)”
(Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547,
564–565 [66 Cal.Rptr.3d 1], original italics.)
• “[T]he focus of the inquiry regarding the independent economic value element is
‘on whether the information is generally known to or readily ascertainable by
business competitors or others to whom the information would have some
economic value. [Citations.] Information that is readily ascertainable by a
business competitor derives no independent value from not being generally
known. [Citation.]’ ” (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc.
(2014) 226 Cal.App.4th 26, 62 [171 Cal.Rptr.3d 714].)
• “Moreover, it seems inherent in the requirement of value, as codified, that it is
relevant to ask to whom the information may be valuable. The statute does not
speak of value in the abstract, but of the value that is ‘[d]eriv[ed] . . . from not
being generally known to the public or to other persons who can obtain
economic value from its disclosure or use . . . .’ In other words, the core inquiry
is the value to the owner in keeping the information secret from persons who
could exploit it to the relative disadvantage of the original owner.” (Yield
Dynamics, Inc., supra, 154 Cal.App.4th at p. 568, original italics, internal
citation omitted.)
• “ ‘[C]ourts are reluctant to protect customer lists to the extent they embody
information which is “readily ascertainable” through public sources, such as
business directories. . . . . On the other hand, where the employer has expended
time and effort identifying customers with particular needs or characteristics,
courts will prohibit former employees from using this information to capture a
share of the market. Such lists are to be distinguished from mere identities and
locations of customers where anyone could easily identify the entities as
potential customers. . . . . As a general principle, the more difficult information
is to obtain, and the more time and resources expended by an employer in
gathering it, the more likely a court will find such information constitutes a trade
secret.’ ” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th
1528, 1539–1540 [67 Cal.Rptr.3d 54], internal citation omitted.)
• “The requirement that a customer list must have economic value to qualify as a
trade secret has been interpreted to mean that the secrecy of this information
provides a business with a ‘substantial business advantage.’ In this respect, a
customer list can be found to have economic value because its disclosure would
allow a competitor to direct its sales efforts to those customers who have already
shown a willingness to use a unique type of service or product as opposed to a
list of people who only might be interested.” (Morlife, Inc. v. Perry (1997) 56
Cal.App.4th 1514, 1522 [66 Cal.Rptr. 2d 731], internal citations omitted.)
• “ ‘The value of information claimed as a trade secret may be established by
direct or circumstantial evidence. Direct evidence relating to the content of the
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CACI No. 4412 TRADE SECRETS
secret and its impact on business operations is clearly relevant. Circumstantial
evidence of value is also relevant, including the amount of resources invested by
the plaintiff in the production of the information, the precautions taken by the
plaintiff to protect the secrecy of the information . . . , and the willingness of
others to pay for access to the information.’ ” (Altavion, Inc., supra, 226
Cal.App.4th at p. 62.)
Secondary Sources
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, § 1.01 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§§ 565.103–565.105 (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State Bar
of California 2009) Ch. 1
4413–4419. Reserved for Future Use
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4420. Affirmative Defense—Information Was Readily Ascertainable
by Proper Means
[Name of defendant] did not misappropriate [name of plaintiff]’s trade
secret[s] if [name of defendant] proves that the [select short term to
describe, e.g., information] [was/were] readily ascertainable by proper
means at the time of the alleged [acquisition/use/ [or] disclosure].
There is no fixed standard for determining what is “readily ascertainable
by proper means.” In general, information is readily ascertainable if it
can be obtained, discovered, developed, or compiled without significant
difficulty, effort, or expense. For example, information is readily
ascertainable if it is available in trade journals, reference books, or
published materials. On the other hand, the more difficult information is
to obtain, and the more time and resources that must be expended in
gathering it, the less likely it is that the information is readily
ascertainable by proper means.
New December 2007; Revised December 2009
Directions for Use
Give also CACI No. 4408, Improper Means of Acquiring Trade Secret.
One case has suggested in a footnote that in order for the defense to apply, the
defendant must have actually obtained plaintiff’s secrets through readily
ascertainable means rather than improperly. (See ABBA Rubber Co. v. Seaquist
(1991) 235 Cal.App.3d 1, 21–22, fn. 9 [286 Cal.Rptr. 518].) Such a requirement
would not constitute an affirmative defense but rather would be a denial of the
improper-means element of the plaintiff’s claim. (See 5 Witkin, California Procedure
(4th ed. 1996) Pleadings, § 1081 [affirmative defense admits the truth of the
essential allegations of the complaint].) Because the advisory committee believes
that this is an affirmative defense, no such requirement has been included in this
instruction. (See San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155
Cal.App.4th 1528, 1542–1543 [67 Cal.Rptr.3d 54] [triable issue of fact as to
whether information was readily ascertainable, that is, whether defendant could have
replicated it within short period of time].)
Sources and Authority
• “Trade Secret” Defined. Civil Code section 3426.1(d)(1).
• “The Legislative Committee Comment [to Civ. Code, § 3426.1] further explains
the original draft defined a trade secret in part as ‘not being readily ascertainable
by proper means’ and that ‘the assertion that a matter is readily ascertainable by
proper means remains available as a defense to a claim of misappropriation.
Information is readily ascertainable if it is available in trade journals, reference
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CACI No. 4420 TRADE SECRETS
books, or published materials.’ ” (DVD Copy Control Assn., Inc. v. Bunner
(2003) 31 Cal.4th 864, 899], conc. opn. of Werdegar, J.; see Legis. Comm.
Comment (Senate), 1984 Addition.)
• “The focus of the first part of the statutory definition is on whether the
information is generally known to or readily ascertainable by business
competitors or others to whom the information would have some economic
value. Information that is readily ascertainable by a business competitor derives
no independent value from not being generally known.” (Syngenta Crop
Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1172 [42 Cal.Rptr.3d
191], internal citations omitted.)
• “With respect to the general availability of customer information, courts are
reluctant to protect customer lists to the extent they embody information which
is ‘readily ascertainable’ through public sources, such as business directories. On
the other hand, where the employer has expended time and effort identifying
customers with particular needs or characteristics, courts will prohibit former
employees from using this information to capture a share of the market. Such
lists are to be distinguished from mere identities and locations of customers
where anyone could easily identify the entities as potential customers. As a
general principle, the more difficult information is to obtain, and the more time
and resources expended by an employer in gathering it, the more likely a court
will find such information constitutes a trade secret.” (Morlife, Inc. v. Perry
(1997) 56 Cal.App.4th 1514, 1521–1522 [66 Cal.Rptr.2d 731], internal citations
omitted.)
• “[Defendant] argues that even if reverse engineering . . . did not actually occur,
the binder contents were not trade secrets because they could have been reverse
engineered—that is, they were readily ascertainable. . . . Considering the length
of time that each proposal took to create and finalize and the urgency with which
four of the project owners impressed upon the prospective contractors to begin
the work, we cannot overlook the possibility that the information was not readily
ascertainable in the circumstances presented. . . . Thus, a triable issue of fact
exists as to whether the entire proposal for each project was indeed readily
ascertainable—that is, whether [defendant] could have replicated each offer
within the short period it claimed to have needed.” (San Jose Construction, Inc.,
supra, 155 Cal.App.4th at pp. 1542–1543, footnote omitted.)
• “While ease of ascertainability is irrelevant to the definition of a trade secret,
‘the assertion that a matter is readily ascertainable by proper means remains
available as a defense to a claim of misappropriation.’ Therefore, if the
defendants can convince the finder of fact at trial (1) that ‘it is a virtual certainty
that anyone who manufactures’ certain types of products uses rubber rollers, (2)
that the manufacturers of those products are easily identifiable, and (3) that the
defendants’ knowledge of the plaintiff’s customers resulted from that
identification process and not from the plaintiff’s records, then the defendants
may establish a defense to the misappropriation claim. That defense, however,
will be based upon an absence of misappropriation, rather than the absence of a
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trade secret.” (ABBA Rubber Co., supra, 235 Cal.App.3d at pp. 21–22, fn. 9,
internal citations omitted.)
• “[T]he evidence established that [plaintiff]’s customer list and related information
was the product of a substantial amount of time, expense and effort on the part
of [plaintiff]. Moreover, the nature and character of the subject customer
information, i.e., billing rates, key contacts, specialized requirements and markup
rates, is sophisticated information and irrefutably of commercial value and not
readily ascertainable to other competitors. Thus, [plaintiff’s] customer list and
related proprietary information satisfy the first prong of the definition of ‘trade
secret’ under section 3426.1.” (Courtesy Temporary Serv., Inc. v. Camacho
(1990) 222 Cal.App.3d 1278, 1288 [272 Cal.Rptr. 352].)
• “In viewing the evidence presented in the light most favorable to the prevailing
party, it is difficult to find a protectable trade secret as that term exists under
Civil Code section 3426.1, subdivision (d). While the information sought to be
protected here, that is lists of customers who operate manufacturing concerns
and who need shipping supplies to ship their products to market, may not be
generally known to the public, they certainly would be known or readily
ascertainable to other persons in the shipping business. The compilation process
in this case is neither sophisticated nor difficult nor particularly time consuming.
The evidence presented shows that the shipping business is very competitive and
that manufacturers will often deal with more than one company at a time. There
is no evidence that all of appellant’s competition comes from respondents’ new
employer. Obviously, all the competitors have secured the same information that
appellant claims and, in all likelihood, did so in the same manner as
appellant—a process described herein by respondents.” (American Paper &
Packaging Prods., Inc. v. Kirgan (1986) 183 Cal.App.3d 1318, 1326 [228
Cal.Rptr. 713].)
Secondary Sources
1 Milgrim on Trade Secrets, Ch. 1, Definitional Aspects, § 1.07[1] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.52[1], 40.53[1][b] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[4][a] (Matthew Bender)
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4421. Affirmative Defense—Statute of Limitations—Three-Year
Limit (Civ. Code, § 3426.6)
[Name of defendant] claims that [name of plaintiff]’s lawsuit was not filed
within the time set by law. To succeed on this defense, [name of
defendant] must prove that the claimed misappropriation of [name of
plaintiff]’s trade secrets occurred before [insert date three years before date
of filing].
However, the lawsuit was still filed on time if [name of plaintiff] proves
that before [insert date three years before date of filing], [he/she/nonbinary
pronoun/it] did not discover, nor with reasonable diligence should have
discovered, facts that would have caused a reasonable person to suspect
that [name of defendant] had misappropriated [name of plaintiff]’s [select
short term to describe, e.g., information].
New April 2009
Directions for Use
Give this instruction if the California Unif orm Trade Secrets Act statute of
limitations is at issue. (See Civ. Code, § 3426.6.) In an action in which the
defendant is or was a customer of the initial misappropriator, modifications may be
required. (See Cypress Semiconductor Corp. v. Superior Court (2008) 163
Cal.App.4th 575 [77 Cal.Rptr.3d 685].)
It is not necessary that the plaintiff know the identity of the defendant in order to
trigger the duty to discover. (Cypress Semiconductor Corp., supra, 163 Cal.App.4th
at p. 587.) Therefore, “[name of defendant]” in the last sentence will need to be
modified if inquiry notice may have been triggered against an actual, but
unidentified, misappropriator. (See Cypress Semiconductor Corp., supra, 163
Cal.App.4th at p. 585.)
This instruction places the burden on the plaintiff to prove that it did not know nor
have any reason to suspect the misappropriation earlier than three years before
filing. (See Civ. Code, § 3426.6.) This is the rule for the burden of proof under the
nonstatutory delayed-discovery rule. (See Glue-Fold, Inc. v. Slautterback Corp.
(2000) 82 Cal.App.4th 1018, 1030 [98 Cal.Rptr.2d 661]; CACI No. 455, Statute of
Limitations—Delayed Discovery.) Certain statutes that have their own delayed
discovery language (as does Civil Code section 3426.6) have been construed to
place the burden on the defendant to prove that the plaintiff knew or should have
suspected the facts giving rise to the cause of action earlier than the limitation date.
(See, e.g., Samuels v. Mix (1999) 22 Cal.4th 1, 8–10 [91 Cal.Rptr.2d 273, 989 P.2d
701] [construing Code Civ. Proc., § 340.6 on legal malpractice]; CACI No. 610,
Affırmative Defense—Statute of Limitations—Attorney Malpractice—One-Year
Limit.) No court has construed Civil Code section 3426.6 to transfer the burden of
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proof on delayed discovery to the defendant, so presumably the burden of proof
remains with the plaintiff under the nonstatutory rule.
Sources and Authority
• Statute of Limitations. Civil Code section 3426.6.
• “The unanimous conclusion of courts considering the issue—i.e., from federal
courts construing section 3426.6—is that it is the first discovered (or
discoverable) misappropriation of a trade secret which commences the limitation
period.” (Glue-Fold, Inc., supra, 82 Cal.App.4th at p. 1026.)
• “The statute is triggered when the plaintiff knows or has reason to know the
third party has knowingly acquired, used, or disclosed its trade secrets.” (Cypress
Semiconductor Corp., supra, 163 Cal.App.4th 585.)
• “[T]he misappropriation that triggers the running of the statute is that which the
plaintiff suspects, not that which may or may not actually exist.” (Cypress
Semiconductor Corp., supra, 163 Cal.App.4th at p. 587.)
• “[A] plaintiff may have more than one claim for misappropriation, each with its
own statute of limitations, when more than one defendant is involved. This is
different from saying that each misappropriation gives rise to a separate claim,
which is what section 3426.6 precludes.” (Cypress Semiconductor Corp., supra,
163 Cal.App.4th at p. 583, original italics.)
• “A misappropriation within the meaning of the UTSA occurs not only at the
time of the initial acquisition of the trade secret by wrongful means, but also
with each misuse or wrongful disclosure of the secret. But a claim for
misappropriation of a trade secret arises for a given plaintiff against a given
defendant only once, at the time of the initial misappropriation, subject to the
discovery rule provided in section 3426.6. Each new misuse or wrongful
disclosure is viewed as augmenting a single claim of continuing
misappropriation rather than as giving rise to a separate claim.” (Cadence Design
Systems, Inc. v. Avant! Corp. (2002) 29 Cal.4th 215, 223 [127 Cal.Rptr.2d 169,
57 P.3d 647], original italics.)
• “It [is appropriate] to construe section 3426.6 as meaning that a cause of action
for misappropriation against a third party defendant accrues with the plaintiff’s
discovery of that defendant’s misappropriation. Any continuing misappropriation
by that defendant constitutes a single claim.” (Cypress Semiconductor Corp.,
supra, 163 Cal.App.4th at p. 583.)
• “If someone steals a trade secret and then sells it to a third party, when does the
statute of limitations begin to run on any misappropriation claim the trade secret
owner might have against the third party? . . . We conclude that with respect to
the element of knowledge, the statute of limitations on a cause of action for
misappropriation begins to run when the plaintiff has any reason to suspect that
the third party knows or reasonably should know that the information is a trade
secret. The third party’s actual state of mind does not affect the running of the
statute.” (Cypress Semiconductor Corp., supra, 163 Cal.App.4th at p. 579,
original italics.)
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• “We conclude that the trial court erred in ruling, under the stipulated facts, that
the statute of limitations did not begin to run until August 2003, when
[defendant] actually learned that the DynaSpice program contained [plaintiff]’s
trade secrets. Rather, the question is: When did [plaintiff] first have any reason
to suspect that a . . . customer [of the initial misappropriator] had obtained or
used DynaSpice knowing, or with reason to know, that the software contained
[plaintiff]’s trade secrets?” (Cypress Semiconductor Corp., supra, 163
Cal.App.4th at p. 588, original italics.)
• “[I]t is not necessary that the plaintiff be able to identify the person or persons
causing the harm. Since the identity of the defendant is not an element of a
cause of action, the failure to discover the identity of the defendant does not
postpone accrual of the cause of action. ‘ “Although never fully articulated, the
rationale for distinguishing between ignorance” of the defendant and “ignorance”
of the cause of action itself “appears to be premised on the commonsense
assumption that once the plaintiff is aware of” the latter, he “normally” has
“sufficient opportunity,” within the “applicable limitations period,” “to discover
the identity” of the former.’ In this case, therefore, the statute began to run when
[plaintiff] had any reason to suspect that the CSI customers knew or should have
known that they had acquired [plaintiff]’s trade secrets.” (Cypress Semiconductor
Corp., supra, 163 Cal.App.4th at p. 587, internal citations omitted.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 91
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial—Claims &
Defenses, Ch. 11(I)-D ¶¶ 11:250–11:252 (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.55 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.274 (Matthew Bender)
Matthew Bender Practice Guide: California Unfair Competition and Business Torts,
Ch. 8, Trade Secrets, 8.28
4422–4499. Reserved for Future Use
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VF-4400. Misappropriation of Trade Secrets
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] [the owner/a licensee] of [insert general
description of alleged trade secret[s] subject to the misappropriation
claim]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. [Was this/Were these] [select short term to describe, e.g.,
information] secret at the time of the alleged misappropriation?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [this/these] [e.g., information] have actual or potential
independent economic value because [it was/they were] secret?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] make reasonable efforts under the
circumstances to keep the [e.g., information] secret?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did [name of defendant] [acquire/use [or] disclose] the trade
secret[s] by improper means?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s improper [acquisition/use/ [or]
disclosure] of the [e.g., information] a substantial factor in causing
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[[name of plaintiff] harm/ [or] [name of defendant] to be unjustly
enriched]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 4401, Misappropriation of Trade
Secrets—Essential Factual Elements, CACI No. 4402, “Trade Secret” Defined,
CACI No. 4403, Secrecy Requirement, CACI No. 4404, Reasonable Efforts to
Protect Secrecy, and CACI No. 4412, “Independent Economic Value” Explained.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
In question 1, briefly describe the material alleged to be a trade secret that is set
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forth in detail in element1 of CACI No. 4401. Then in question 2, select a short
term to describe the material.
Additional questions may be added depending on whether misappropriation is
claimed in question 5 by acquisition, disclosure, or use. See CACI No. 4405,
Misappropriation by Acquisition, CACI No. 4406, Misappropriation by Disclosure,
and CACI No. 4407, Misappropriation by Use, for additional elements that the jury
should find in each kind of case.
Modify the claimed damages in question 7 as appropriate depending on the
circumstances. (See CACI No. 4409, Remedies for Misappropriation of Trade
Secret.) If unjust enrichment is alleged, additional questions on the value of the
benefit to the defendant and the defendant’s reasonable expenses should be included.
(See CACI No. 4410, Unjust Enrichment.)
In cases involving more than one trade secret, the jury must answer all of the
questions in the verdict form separately for each trade secret at issue.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-4401–VF-4499. Reserved for Future Use
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CONSTRUCTION LAW
4500. Breach of Implied Warranty of Correctness of Plans and
Specifications—Essential Factual Elements
4501. Owner’s Liability for Failing to Disclose Important Information Regarding a
Construction Project—Essential Factual Elements
4502. Breach of Implied Covenant to Provide Necessary Items Within Owner’s
Control—Essential Factual Elements
4503–4509. Reserved for Future Use
4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Essential Factual Elements
4511. Affirmative Defense—Contractor Followed Plans and Specifications
4512–4519. Reserved for Future Use
4520. Contractor’s Claim for Changed or Extra Work
4521. Owner’s Claim That Contract Procedures Regarding Change Orders Were
Not Followed
4522. Waiver of Written Approval or Notice Requirements for Changed or
Additional Work
4523. Contractor’s Claim for Additional Compensation—Abandonment of Contract
4524. Contractor’s Claim for Compensation Due Under Contract—Substantial
Performance
4525–4529. Reserved for Future Use
4530. Owner’s Damages for Breach of Construction Contract—Work Does Not
Conform to Contract
4531. Owner’s Damages for Breach of Construction Contract—Failure to Complete
Work
4532. Owner’s Damages for Breach of Construction Contract—Liquidated
Damages Under Contract for Delay
4533–4539. Reserved for Future Use
4540. Contractor’s Damages for Breach of Construction Contract—Change Orders/
Extra Work
4541. Contractor’s Damages for Breach of Construction Contract—Change Orders/
Extra Work—Total Cost Recovery
4542. Contractor’s Damages for Abandoned Construction Contract—Quantum
Meruit Recovery
4543. Contractor’s Damages for Breach of Construction Contract—Owner-Caused
Delay or Acceleration
4544. Contractor’s Damages for Breach of Construction Contract—Inefficiency
Because of Owner Conduct
4545–4549. Reserved for Future Use
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4550. Affirmative Defense—Statute of Limitations—Patent Construction Defect
(Code Civ. Proc., § 337.1)
4551. Affirmative Defense—Statute of Limitations—Latent Construction Defect
(Code Civ. Proc., § 337.15)
4552. Affirmative Defense—Work Completed and Accepted—Patent Defect
4553–4559. Reserved for Future Use
4560. Recovery of Payments to Unlicensed Contractor—Essential Factual Elements
(Bus. & Prof. Code, § 7031(b))
4561. Damages—All Payments Made to Unlicensed Contractor
4562. Payment for Construction Services Rendered—Essential Factual Elements
(Bus. & Prof. Code, § 7031(a), (e))
4563–4569. Reserved for Future Use
4570. Right to Repair Act—Construction Defects—Essential Factual Elements
(Civ. Code, § 896)
4571. Right to Repair Act—Damages (Civ. Code, § 944)
4572. Right to Repair Act—Affirmative Defense—Act of Nature (Civ. Code,
§ 945.5(a))
4573. Right to Repair Act—Affirmative Defense—Unreasonable Failure to
Minimize or Prevent Damage (Civ. Code, § 945.5(b))
4574. Right to Repair Act—Affirmative Defense—Plaintiff’s Subsequent Acts or
Omissions (Civ. Code, § 945.5(d))
4575. Right to Repair Act—Affirmative Defense—Failure to Follow
Recommendations or to Maintain (Civ. Code, § 945.5(c))
4576–4599. Reserved for Future Use
VF-4500. Owner’s Failure to Disclose Important Information Regarding
Construction Project
VF-4501–VF-4509. Reserved for Future Use
VF-4510. Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Affirmative Defense—Contractor Followed Plans and
Specifications
VF-4511–VF-4519. Reserved for Future Use
VF-4520. Contractor’s Claim for Changed or Extra Work—Owner’s Response That
Contract Procedures Not Followed—Contractor’s Claim of Waiver
VF-4521–VF-4599. Reserved for Future Use
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4500. Breach of Implied Warranty of Correctness of Plans and
Specifications—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] provided plans and
specifications for the [project/describe construction project, e.g., kitchen
remodeling] that were not correct. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] provided [name of plaintiff] with plans
and specifications for [name of defendant]’s [short name for project,
e.g., remodeling] project;
2. That [name of plaintiff] was required to follow the plans and
specifications provided by [name of defendant] in [bidding on/
[and] constructing] the [e.g., remodeling] project;
3. That [name of plaintiff] reasonably relied on the plans and
specifications for the [e.g., remodeling] project;
4. That the plans and/or specifications provided by [name of
defendant] were not correct; and
5. That [name of plaintiff] was harmed because the plans or
specifications were not correct.
New December 2010; Revised June 2011
Directions for Use
This instruction should be given when a contractor makes a claim for breach of the
implied warranty of correctness on the grounds that the plans and specifications
provided by the owner for its construction project were not correct. Also give CACI
No. 303, Breach of Contract—Essential Factual Elements, for other contested
elements of a breach-of-contract claim.
The word “project” may be used if the meaning will be clear to the jury.
Alternatively, describe the project in the first paragraph, and then select a shorter
term for use thereafter.
This implied warranty also applies to a general contractor who is responsible for the
correctness of plans and specifications that are provided to subcontractors. (See
Healy v. Brewster (1967) 251 Cal.App.2d 541, 550 [59 Cal.Rptr. 752].)
An implied-warranty claim can arise when the contractor is required to rely on the
owner’s plans and specifications in preparing a fixed price bid for a project. A claim
can also arise when the contractor must follow the owner’s plans and specifications
and, as a result, encounters difficulty in constructing the project. In either case, the
contractor may assert a claim for breach of the implied warranty if the contractor is
damaged by incorrect plans or specifications.
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A breach of the implied warranty can also be asserted as an affirmative defense to
an owner’s claim for nonperformance (see CACI No. 4511, Affırmative
Defense—Contractor Followed Plans and Specifications) if the contractor’s alleged
breach was caused by the owner’s incorrect plans and specifications.
The implied warranty applies in particular to plans and specifications provided by
public owners, who are required by statute to prepare accurate and complete plans
and specification for public works projects. (See Public Contract Code, §§ 1104,
10120.) It can also apply to private construction projects if the owner requires the
contractor to follow plans and specifications that turn out to be incorrect. (See, e.g.,
Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396,
404 [55 Cal.Rptr. 1, 420 P.2d 713].)
An owner’s obligation to provide correct plans and specifications cannot be
disclaimed by general language requiring the contractor to examine the plans and
specifications for errors and omissions. (See Warner Constr. Corp. v. L.A. (1970) 2
Cal.3d 285, 292 [85 Cal.Rptr. 444, 466 P.2d 996].)
Sources and Authority
• Architectural or Engineering Plans and Specifications on Public Works Projects.
Public Contract Code section 1104 (applicable to state agencies).
• Plans and Specifications on State Agency Projects. Public Contract Code section
10120 (applicable to state agencies).
• “[I]f the contractor is bound to build according to plans and specifications
prepared by the owner, the contractor will not be responsible for the
consequences of defects in the plans and specifications. This responsibility of the
owner is not overcome by the usual clauses requiring builders to visit the site, to
check the plans, and to inform themselves of the requirements of the
work . . . .” (United States v. Spearin (1918) 248 U.S. 132, 136 [39 S.Ct. 59, 63
L.Ed. 166], internal citations omitted.)
• “A contractor of public works who, acting reasonably, is misled by incorrect
plans and specifications issued by the public authorities as the basis for bids and
who, as a result, submits a bid which is lower than he would have otherwise
made may recover in a contract action for extra work or expenses necessitated
by the conditions being other than as represented. This rule is mainly based on
the theory that the furnishing of misleading plans and specifications by the
public body constitutes a breach of an implied warranty of their correctness. The
fact that a breach is fraudulent does not make the rule inapplicable.” (Souza &
McCue Constr. Co. v. Superior Court of San Benito County (1962) 57 Cal.2d
508, 510–511 [20 Cal.Rptr. 634, 370 P.2d 338], internal citations omitted.)
• “We have long recognized that ‘[a] contractor of public works who, acting
reasonably, is misled by incorrect plans and specifications issued by the public
authorities as the basis for bids and who, as a result, submits a bid which is
lower than he would have otherwise made may recover in a contract action for
extra work or expenses necessitated by the conditions being other than as
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represented.’ ” (Los Angeles Unified School District v. Great American Ins. Co.
(2010) 49 Cal.4th 739, 744 [112 Cal.Rptr.3d 230, 234 P.3d 490].)
• “The responsibility of a governmental agency for positive representations it is
deemed to have made through defective plans and specifications ‘is not
overcome by the general clauses requiring the contractor, to examine the site, to
check up the plans, and to assume responsibility for the work . . . .’ ” (E. H.
Morrill Co. v. State (1967) 65 Cal.2d 787, 792–793 [56 Cal.Rptr. 479, 423 P.2d
551], internal citations omitted.)
• “If a contractor makes a misinformed bid because a public entity issued incorrect
plans and specifications, precedent establishes that the contractor can sue for
breach of the implied warranty that the plans and specifications are correct. The
contractor may recover ‘for extra work or expenses necessitated by the
conditions being other than as represented.’ ” (Dillingham-Ray Wilson v. City of
Los Angeles (2010) 182 Cal.App.4th 1396, 1401, fn. 5 [106 Cal.Rptr.3d 691].)
• “Courts have recognized a cause of action in contract against a public entity
based upon the theory that ‘the furnishing of misleading plans and specifications
by the public body constitutes a breach of implied warranty of their
correctness.’ ” (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007)
155 Cal.App.4th 525, 551 [66 Cal.Rptr.3d 175].)
• “Second, [private owner] breached its contract by providing [contractor] with
plans that were both erroneous and extremely late in issuance. Although
construction started on May 1, 1976, lengthy drawing reviews became necessary
and final drawings were still being furnished as late as July through September
1977. The furnishing of misleading plans and specifications by an owner is a
breach of an implied warranty of their correctness.” (C. Norman Peterson Co. v.
Container Corp. of Am. (1985) 172 Cal.App.3d 628, 643 [218 Cal.Rptr. 592],
internal citations omitted.)
• “The trial court . . . read the section 158 disclaimer to the jury, but instructed
them that ‘if a public agency makes a positive and material representation as to
a condition presumably within the knowledge of the agency and upon which the
plaintiff had a right to rely, the agency is deemed to have warranted such facts
despite a general provision requiring an on-site inspection by the contractor.’ In
submitting the issue of the effect of the section 158 disclaimer to the jury, and
its instructions to the jury, the trial court complied with our decision in Morrill,
and the verdict must be taken as resolving that issue against defendant.” (Warner
Constr. Corp., supra, 2 Cal.3d at p. 292, fn. 2].)
• “Since the plans and specifications were prepared by the owners’ architect and
not by the subcontractor, and since the subcontractor undertook to do the work
in accordance with his specific proposal, we cannot reasonably conclude that the
subcontractor assumed responsibility for the adequacy of the plans and
specifications . . . . The language upon which the plaintiff relies constituted a
statement of the purpose sought to be achieved by means of the owners’ plans
and specifications rather than an undertaking on the part of the subcontractor of
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responsibility for the adequacy of such plans and specifications as the design of
a system capable of producing the desired result.” (Kurland v. United Pacific Ins.
Co. (1967) 251 Cal.App.2d 112, 117 [59 Cal.Rptr. 258].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 1035
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, §§ 6.73–6.76
5 Stein, Construction Law, Ch. 18, Warranties, ¶ 18.02 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.24
(Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 481, Public Works, § 481.311
(Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:63–27:64 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:78 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 9:78, 9:84 (Thomson Reuters)
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 4,
Breach of Contract by Owner, §§ 4.06, 4.07
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause,
pp. 99–100
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4501. Owner’s Liability for Failing to Disclose Important
Information Regarding a Construction Project—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
because [name of defendant] failed to disclose important information
regarding [specify information that defendant failed to disclose or concealed,
e.g., tidal conditions at the project site]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] submitted [his/her/nonbinary pronoun/its]
bid or agreed to perform without information regarding [e.g.,
tidal conditions] that materially affected performance costs;
2. That [name of defendant] had this information, and was aware
that [name of plaintiff] did not know it and had no reason to
obtain it;
3. That [name of defendant] failed to provide this information;
4. That the contract plans and specifications or other information
furnished by [name of defendant] to [name of plaintiff] misled
[name of plaintiff] or did not put [him/her/nonbinary pronoun/it] on
notice to investigate further;
5. That [name of plaintiff] was harmed because of [name of
defendant]’s failure to disclose the information.
[Name of plaintiff] does not have to prove that [name of defendant]
intended to conceal the information.
New December 2010; Revised June 2011
Directions for Use
Give this instruction if a contractor claims that the owner had important information
regarding the project that it failed to disclose, and as a result, the contractor incurred
greater costs than anticipated. Also give CACI No. 303, Breach of
Contract—Essential Factual Elements, for other contested elements of a breach-of-
contract claim.
With regard to undisclosed information, there is liability only if the failure to
disclose materially affected the cost of performance and actually and justifiably
misled the contractor in bidding on the contract. It is not necessary to show a
fraudulent intent to conceal. (See Los Angeles Unified School Dist. v. Great
American Ins. Co. (2010) 49 Cal.4th 739, 745 [112 Cal.Rptr.3d 230, 234 P.3d 490].)
This instruction applies principally to public owners awarding fixed price
construction contracts to contractors required to submit bids based on information
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provided by the public owner. Government Code section 818.8 relieves public
owners from tort liability for concealment and similar tortious conduct. However,
public owners remain liable in contract. (See Warner Constr. Corp. v. L.A. (1970) 2
Cal.3d 285, 294 [85 Cal.Rptr. 444, 466 P.2d 996].) Private owners remain liable in
tort for concealment of important facts. (See CACI No. 1901, Concealment.)
Sources and Authority
• “[A] contractor need not prove an affirmative fraudulent intent to conceal. Rather
. . . a public entity may be required to provide extra compensation if it knew,
but failed to disclose, material facts that would affect the contractor’s bid or
performance. Because public entities do not insure contractors against their own
negligence, relief for nondisclosure is appropriate only when (1) the contractor
submitted its bid or undertook to perform without material information that
affected performance costs; (2) the public entity was in possession of the
information and was aware the contractor had no knowledge of, nor any reason
to obtain, such information; (3) any contract specifications or other information
furnished by the public entity to the contractor misled the contractor or did not
put it on notice to inquire; and (4) the public entity failed to provide the relevant
information.” (Los Angeles Unified School Dist., supra, 49 Cal.4th at p. 745.)
• “The circumstances affecting recovery may include, but are not limited to,
positive warranties or disclaimers made by either party, the information provided
by the plans and specifications and related documents, the difficulty of detecting
the condition in question, any time constraints the public entity imposed on
proposed bidders, and any unwarranted assumptions made by the contractor. The
public entity may not be held liable for failing to disclose information a
reasonable contractor in like circumstances would or should have discovered on
its own, but may be found liable when the totality of the circumstances is such
that the public entity knows, or has reason to know, a responsible contractor
acting diligently would be unlikely to discover the condition that materially
increased the cost of performance.” (Los Angeles Unified School Dist., supra, 49
Cal.4th at p. 754.)
• “[E]stablished law provides public entities substantial protection against careless
bidding practices by contractors and forecloses the possibility that a public entity
will be held liable when a contractor’s own lack of diligence prevented it from
fully appreciating the costs of performance. This being so, protection against
careless bidding practices does not require that we allow contractors damaged by
a public entity’s misleading nondisclosure to recover only on a showing the
public entity harbored a fraudulent intent.” (Los Angeles Unified School Dist.,
supra, 49 Cal.4th at p. 752.)
• “Nondisclosure is actionable . . . only if the information at issue materially
affects the cost of performance . . . .” (Los Angeles Unified School Dist., supra,
49 Cal.4th at p. 753.)
• “In transactions which do not involve fiduciary or confidential relations, a cause
of action for non-disclosure of material facts may arise in at least three
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instances: (1) the defendant makes representations but does not disclose facts
which materially qualify the facts disclosed, or which render his disclosure likely
to mislead; (2) the facts are known or accessible only to defendant, and
defendant knows they are not known to or reasonably discoverable by the
plaintiff; (3) the defendant actively conceals discovery from the plaintiff.”
(Warner Constr. Corp., supra, 2 Cal.3d at p. 294, footnotes omitted.)
• “But this does not mean . . . that City could be liable simply by failing to
supply complete plans and specifications. It does mean that careless failure to
disclose information may form the basis for an implied warranty claim if the
defendant possesses superior knowledge inaccessible to the contractor or where
that which was disclosed is likely to mislead in the absence of the undisclosed
information . . . . Thus, . . . the general rule [is] that silence alone is not
actionable.” (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007)
155 Cal.App.4th 525, 552 [66 Cal.Rptr.3d 175], internal citations omitted.)
• “It would be inequitable to permit defendant to enforce the literal terms of the
contract which called for the excavation of ‘all materials’ necessary to complete
the job when plaintiffs were induced by defendant’s misrepresentation to submit
a bid which was much lower than was warranted by the true facts. If instead of
stating in the specifications that [contractor] would excavate to rough grade,
defendant had stated the true facts of which it had knowledge—that [contractor]
was obligated by contract to excavate no lower than five feet above grade—the
present situation would not have arisen. Having failed to impart this knowledge
to plaintiffs and having willfully or carelessly misrepresented the true situation,
defendant is obligated to plaintiffs for the additional work occasioned.” (Gogo v.
Los Angeles County Flood Control Dist. (1941) 45 Cal.App.2d 334, 341–342
[114 P.2d 65].)
• “It is the general rule that by failing to impart its knowledge of difficulties to be
encountered in a project, the owner will be liable for misrepresentation if the
contractor is unable to perform according to the contract provisions. [¶] In a
factually similar case, the contractor encountered ‘unusual quantities of
quicksand and extensive subsoil water conditions which had not been shown on
the plans or specifications . . . information as to which, although known to it,
had been withheld by the city.’ An award of damages was affirmed because . . .
‘[t]he withholding by the city of its knowledge . . . resulting in excessive cost
of construction, forms actionable basis for plaintiff’s claim for damages.’ ”
(Salinas v. Souza & McCue Constr. Co. (1967) 66 Cal.2d 217, 222–223 [57
Cal.Rptr. 337, 424 P.2d 921], internal citations omitted.)
• “Here, the city argues that provisions in the contract specifications requiring that
the bidders ‘examine carefully the site of the work,’ and stating that it is
‘mutually agreed that the submission of a proposal shall be considered prima
facie evidence that the bidder has made such examination,’ prevents a holding
that the city is liable for the consequences of its fraudulent representation.
However, even if the language had specifically directed the bidders to examine
subsoil conditions, which it did not, it is clear that such general provisions
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cannot excuse a governmental agency for its active concealment of conditions.”
(Salinas, supra, 66 Cal.2d at p. 223, internal citations omitted.)
• “A fraudulent concealment often composes the basis for an action in tort, but tort
actions for misrepresentation against public agencies are barred by Government
Code section 818.8. Plaintiff retains, however, a cause of action in contract. ‘It is
the general rule that by failing to impart its knowledge of difficulties to be
encountered in a project, the owner will be liable for misrepresentation if the
contractor is unable to perform according to the contract provisions.’ As
explained in Souza & McCue Construction Co. v. Superior Court, . . . : ‘This
rule is mainly based on the theory that the furnishing of misleading plans and
specifications by the public body constitutes a breach of an implied warranty of
their correctness. The fact that a breach is fraudulent does not make the rule
inapplicable.’ ” (Warner Constr. Corp., supra, 2 Cal.3d at pp. 293–294, internal
citations omitted.)
• “Under general principles of contract and tort law, a party who conceals or fails
to disclose material information to another is liable for fraud. In the public
construction contract context, however, the conduct of a public agency which
would otherwise amount to a tortuous [sic] misrepresentation is treated as a
breach of contract. The underlying theory is that providing misleading plans and
specifications constitutes a breach of the implied warranty of correctness.
(Howard Contracting, Inc. v. G. A. MacDonald Construction Co. (1998) 71
Cal.App.4th 38, 55 [83 Cal.Rptr.2d 590].)
• “When there is no misrepresentation of factual matters within the state’s
knowledge or withholding of material information, and when both parties have
equal access to information as to the nature of the tests which resulted in the
state’s findings, the contractor may not claim in the face of a pertinent disclaimer
that the presentation of the information, or a reasonable summary thereof,
amounts to a warranty of the conditions that will actually be found.”
(Wunderlich v. State (1967) 65 Cal.2d 777, 786–787 [56 Cal.Rptr. 473, 423 P.2d
545].)
• “Thus, [contractor]’s entitlement to recover for extra work performed in
connection with the fire alarm contract does not turn upon the issuance of
written change orders. Because the extra work on the fire alarm contract was
necessitated by incorrect plans and specifications furnished by the District, under
settled law [contractor] was entitled to recover for said work.” (G. Voskanian
Construction, Inc. v. Alhambra Unified School Dist. (2012) 204 Cal.App.4th 981,
992 [139 Cal.Rptr.3d 286].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 1035
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, §§ 6.73–6.76
5 Stein, Construction Law, Ch. 18, Warranties, ¶ 18.02 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
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Remedies, § 440.15 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.24
(Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 481, Public Works, § 481.311
(Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:63–27:64 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:12 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 9:92 (Thomson Reuters)
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 4,
Breach of Contract by Owner, § 4.06
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause,
pp. 99–100
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4502. Breach of Implied Covenant to Provide Necessary Items
Within Owner’s Control—Essential Factual Elements
In every construction contract, it is understood that the owner will
provide access to the project site and do those things within the owner’s
control that are necessary for the contractor to reasonably and timely
perform its work. [Name of plaintiff] claims that [name of defendant]
breached the contract by [specify what owner failed to do, e.g., failing to
procure a disposal permit for hazardous materials]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] could not reasonably or timely perform
[his/her/nonbinary pronoun/its] work without [insert short name for
item, e.g., a disposal permit];
2. That [name of defendant] knew or reasonably should have known
that [e.g., a disposal permit] was necessary for [name of plaintiff] to
reasonably and timely perform the work;
3. That [name of defendant] had the ability to [e.g., procure a disposal
permit];
4. That [name of plaintiff] could not [e.g., obtain a disposal permit]
without [name of defendant]’s assistance;
5. That [name of defendant] failed to [e.g., procure a disposal permit]
in a timely manner; and
6. That [name of plaintiff] was harmed by [name of defendant]’s
failure.
New December 2010; Revised June 2011
Directions for Use
This instruction should be used when a contractor claims the owner breached an
implied covenant to provide necessary access to the project site, easements, permits,
or other things uniquely within the owner’s control in order for the contractor to
reasonably and timely perform the contract. Also give CACI No. 303, Breach of
Contract—Essential Factual Elements, for other contested elements of a breach-of-
contract claim.
This implied covenant can arise in both private and public contracts unless it is
expressly precluded by the contract documents. (See Hensler v. City of Los Angeles
(1954) 124 Cal.App.2d 71, 82 [268 P.2d 12] [covenant is implied in every
construction contract]; see also Bomberger v. McKelvey (1950) 35 Cal.2d 607, 613
[220 P.2d 729] [covenant implied in private contract].) This instruction may also be
used when the contractor claims the owner breached a general duty of cooperation
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by failing to control and/or coordinate third parties, such as other contractors on the
project site.
This instruction is based on CACI 325, Breach of Covenant of Good Faith and Fair
Dealing—Essential Factual Elements.
Sources and Authority
• Implied Stipulations to Make Contract Reasonable. Civil Code section 1655.
• Implied Contract Terms. Civil Code section 1656.
• “In every building contract which contains no express covenants on the subjects
there are implied covenants to the effect that the contractor shall be permitted to
proceed with the construction of the building in accordance with the other terms
of the contract without interference by the owner and that he shall be given such
possession of the premises as will enable him to adequately carry on the
construction and complete the work agreed upon. Such terms are necessarily
implied from the very nature of the contract and a failure to observe them not
consented to by the contractor constitutes a breach of contract on the part of the
owner entitling the contractor to rescind, although it may not amount to a
technical prevention of performance.” (Gray v. Bekins (1921) 186 Cal. 389, 395
[199 P. 767], internal citations omitted.)
• “Under the contract as thus construed, there was an implied covenant that
plaintiffs would be given possession of the premises for the agreed purpose at a
reasonable time to be chosen by them. Defendant’s conduct in forbidding
plaintiffs to enter, therefore, was sufficient not only to excuse their performance
but also to constitute a breach or anticipatory breach of the contract.”
(Bomberger, supra, 35 Cal.2d at p. 613, internal citations omitted.)
• “The rule is plain that in every construction contract the law implies a covenant,
where necessary, that the owner will furnish the selected site of operations to the
contractor in order to enable him ‘to adequately carry on the construction and
complete the work agreed upon.’ The rule applies with equal force to
construction contracts entered into by a municipality.” (Hensler, supra, 124
Cal.App.2d at p. 83, internal citations omitted.)
• “In general, where plans, specifications and conditions of contract do not
otherwise provide, there is an implied covenant that the owner of the project is
required to furnish whatever easements, permits or other documentation are
reasonably required for the construction to proceed in an orderly manner.”
(COAC, Inc. v. Kennedy Engineers (1977) 67 Cal.App.3d 916, 920 [136
Cal.Rptr. 890].)
• “The rule is well settled that in every construction contract the law implies a
covenant that the owner will provide the contractor timely access to the project
site to facilitate performance of work. When necessary permits relating to the
project are not available or access to the site is limited by the owner, the implied
covenant is breached. The trial court found the delays were caused by the
[defendant]’s breaches of contract and implied covenant in failing to disclose
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known restrictions on project performance, to obtain necessary permits, and to
provide timely access to perform the work.” (Howard Contracting, Inc. v. G.A.
MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 50 [83 Cal.Rptr.2d
590], internal citations omitted.)
• “[A] contract includes not only the terms that have been expressly stated but
those implied provisions indispensable to effectuate the intention of the
parties. . . . [¶] Clearly an implied term of the contract herein was that once the
notice to proceed was issued, the dredge would be available for work on the
project . . . . [¶] [Plaintiff], acting as a reasonable public works contractor, was
misled by this incorrect implied representation in its submission of a bid.
[Plaintiff] justifiably relied on this representation in determining the cost of
constructing the seawall. Accordingly, it did not include in its bid the cost of
maintaining the seawall for an indefinite period of time while awaiting the
arrival of the dredge. As the [defendant] impliedly warranted the correctness of
these representations, it is liable for the cost of extra work which was
necessitated by the dredge’s failure to arrive.” (Tonkin Constr. Co. v. County of
Humboldt (1987) 188 Cal.App.3d 828, 832 [233 Cal.Rptr. 587], internal citations
omitted.)
• “ ‘[T]he covenant is implied as a supplement to the express contractual
covenants, to prevent a contracting party from engaging in conduct which (while
not technically transgressing the express covenants) frustrates the other party’s
rights to the benefits of the contract.’ ” (Racine & Laramie, Ltd. v. Department
of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031–1032 [14 Cal.Rptr.2d
335], original italics.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 827
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.84, 6.85
5 Stein, Construction Law, Ch. 18, Warranties, ¶ 18.02 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 140, Contracts, § 140.45 (Matthew
Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.24
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.242 (Matthew Bender)
Acret, California Construction Law Manual (6th ed.) §§ 1:80, 1:82 (Thomson
Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 7:48, 7:77 (Thomson
Reuters)
Bruner & O’Connor on Construction Law, § 9:99 (Thomson Reuters)
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) p. 10
4503–4509. Reserved for Future Use
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4510. Breach of Implied Covenant to Perform Work in a Good and
Competent Manner—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] failed to [perform the
work for the [project/describe construction project, e.g., kitchen remodeling]
competently/ [or] use the proper materials for the [project/ e.g., kitchen
remodeling]]. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] failed to [perform [his/her/nonbinary
pronoun/its] work competently/ [or] provide the proper materials]
by [describe alleged breach, e.g., failing to apply suffıcient coats of
paint or failing to complete the project in substantial conformity with
the plans and specifications]; and
2. That [name of plaintiff] was harmed by [name of defendant]’s
failure.
New December 2010; Revised June 2011, December 2014
Directions for Use
This instruction is for use if an owner claims that the contractor breached the
contract by failing to perform the work on the project competently so that the result
did not meet what was expected under the contract. This is sometimes referred to as
the implied covenant that the work performed will be fit and proper for its intended
use. (See Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d 552].) The
implied covenant encompasses the quality of both the work and materials. (See Aced
v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, 582–583 [12 Cal.Rptr. 257,
360 P.2d 897].)
Also give CACI No. 303, Breach of Contract—Essential Factual Elements.
The word “project” may be used if the meaning will be clear to the jury.
Alternatively, describe the project in the first paragraph, and then select a shorter
term for use thereafter.
This instruction is based on CACI No. 325, Breach of Covenant of Good Faith and
Fair Dealing—Essential Factual Elements. It should be given in conjunction with
CACI No. 4530, Owner’s Damages for Breach of Construction Contract—Work
Does Not Conform to Contract, which provides the proper measure of damages
recoverable for a breach of the implied covenant to perform work fit for its intended
use.
This instruction may be adapted for use with a claim by a homeowner who
purchased the property from the developer-owner against the contractor for
construction defects. The claim would be based on the homeowner’s status as a
third-party beneficiary of the builder-developer contract. (See Burch v. Superior
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Court (2014) 223 Cal.App.4th 1411, 1422–1423 [168 Cal.Rptr.3d 81], disapproved
on other grounds in McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241,
258 [227 Cal.Rptr.3d 191, 408 P.3d 797]; see also Gilbert Financial Corp. v.
Steelform Contracting Co. (1978) 82 Cal.App.3d 65, 69–70, 145 Cal.Rptr. 448
[homeowner can be beneficiary of contractor-subcontractor contract].)
Sources and Authority
• “[A]lthough [general contractor] . . . had a contractual relationship with the
City, it also had a duty of care to perform in a competent manner.” (Willdan v.
Sialic Contractors Corp. (2007) 158 Cal.App.4th 47, 57 [69 Cal.Rptr.3d 633].)
• “The defect complained of and the alleged breach of the warranty relate solely
to fabrication and workmanship—the seams opened and the edges raveled. The
failure of the carpet to last for the period warranted was occasioned by the
defective sewing of the seams and binding of the edges, constituting a breach of
the warranty as it related to good workmanship in assembling and installing it,
but not as to the quality of the carpet itself.” (Southern California Enterprises,
Inc. v. D. N. & E. Walter & Co. (1947) 78 Cal.App.2d 750, 753–754 [178 P.2d
785], superseded by statute as stated in Cardinal Health 301, Inc. v. Tyco
Electronics Corp. (2008) 169 Cal.App.4th 116, 132 [87 Cal. Rptr. 3d 5].)
• “[Subcontractor] agreed to perform the waterproofing and drainage work on the
retaining walls built by [contractor] and had the duty to perform those tasks in a
good and workmanlike manner.” (Stonegate Homeowners Assn. v. Staben (2006)
144 Cal.App.4th 740, 749 [50 Cal.Rptr.3d 709].)
• “ ‘Accompanying every contract is a common-law duty to perform with care,
skill, reasonable expedience, and faithfulness the thing agreed to be done, and a
negligent failure to observe any of these conditions is a tort as well as a breach
of the contract.’ The rule which imposes this duty is of universal application as
to all persons who by contract undertake professional or other business
engagements requiring the exercise of care, skill and knowledge; the obligation
is implied by law and need not be stated in the agreement.” (Kuitems, supra, 104
Cal.App.2d at p. 485.)
• “Obviously, the statement in the written contract that it contains the entire
agreement of the parties cannot furnish the appellants an avenue of escape from
the entirely reasonable obligation implied in all contracts to the effect that the
work performed ‘shall be fit and proper for its said intended use’ . . . .”
(Kuitems, supra, 104 Cal.App.2d at p. 485.)
• “[N]o warranty other than that of good workmanship can be implied where the
contractor faithfully complies with plans and specifications supplied by the
owner . . . .” (Sunbeam Constr. Co. v. Fisci (1969) 2 Cal.App.3d 181, 186 [82
Cal.Rptr. 446], internal citations omitted.)
• “[T]here is implied in a sales contract for newly constructed real property a
warranty of quality and fitness. . . . ‘[T]he builder or seller of new
construction—not unlike the manufacturer or merchandiser of personalty—makes
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implied representations, ordinarily indispensable to the sale, that the builder has
used reasonable skill and judgment in constructing the building.’ . . . ‘[W]e
conclude builders and sellers of new construction should be held to what is
impliedly represented—that the completed structure was designed and
constructed in a reasonably workmanlike manner.’ ” (Burch, supra, 223
Cal.App.4th at p. 1422, disapproved on other grounds in McMillin Albany LLC,
supra, 4 Cal.5th at p. 258, internal citations omitted.)
• “[A] contract to build an entire building is essentially a contract for material and
labor, and there is an implied warranty protecting the owner from defective
construction. Clearly, it would be anomalous to imply a warranty of quality
when construction is pursuant to a contract with the owner—but fail to recognize
a similar warranty when the sale follows completion of construction.” (Pollard v.
Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 378–379 [115 Cal.Rptr. 648, 525
P.2d 88], internal citations omitted.)
• Several cases dealing with construction contracts and other contracts for labor
and material show that ordinarily such contracts give rise to an implied warranty
that the product will be fit for its intended use both as to workmanship and
materials. These cases support the proposition that although the provisions of the
Uniform Sales Act with respect to implied warranty (Civ. Code, §§ 1734–1736)
apply only to sales, similar warranties may be implied in other contracts not
governed by such statutory provisions when the contracts are of such a nature
that the implication is justified. . . . [¶] The reference in the stipulation to
merchantability, a term generally used in connection with sales, does not
preclude reliance on breach of warranty although the contract is one for labor
and material. With respect to sales, merchantability requires among other things
that the substance sold be reasonably suitable for the ordinary uses it was
manufactured to meet. The defect of which [plaintiff] complains is that the
tubing was not reasonably suitable for its ordinary use, and his cause of action
may properly be considered as one for breach of a warranty of merchantability.
There is no justification for refusing to imply a warranty of suitability for
ordinary uses merely because an article is furnished in connection with a
construction contract rather than one of sale. The evidence, if taken in the light
most favorable to [plaintiff], would support a determination that there was an
implied warranty of merchantability.” (Aced, supra, 55 Cal.2d at p. 583, internal
citations omitted.)
• “[P]ublic policy imposes on contractors in various circumstances the duty to
finish a project with diligence and to avoid injury to the person or property of
third parties.” (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1450 [37
Cal.Rptr.2d 790].)
Secondary Sources
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.93
2 Stein, Construction Law, Ch. 5B, Contractor’s and Construction Manager’s Rights
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and Duties, ¶ 5B.01[2][b] (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.42
(Matthew Bender)
29 California Legal Forms, Ch. 89, Home Improvement and Specialty Contracts,
§ 89.14 (Matthew Bender)
Miller & Starr, California Real Estate 4th, § 29:5 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 5:39 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 9:67–9:70 (Thomson Reuters)
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 5,
Breach of Contract by Contractor, § 5.01
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4511. Affirmative Defense—Contractor Followed Plans and
Specifications
[Name of plaintiff] claims that [name of defendant] failed to [perform the
work for the [project/describe construction project, e.g., kitchen remodeling]
competently/ [or] use the proper materials for the [project/ e.g., kitchen
remodeling]]. [Name of defendant] claims that [he/she/nonbinary pronoun/it]
followed the plans and specifications and that [specify alleged defect in the
work or materials] was because of the plans and specifications that [name
of plaintiff] provided to [name of defendant] for the project.
To succeed on this defense, [name of defendant] must prove all the
following:
1. That [name of plaintiff] provided [name of defendant] with the
plans and specifications for the project;
2. That [name of plaintiff] required [name of defendant] to follow the
plans and specifications in constructing the project;
3. That [name of defendant] substantially complied with the plans
and specifications that [name of plaintiff] provided for the project;
and
4. That [specify alleged defect in the work and/or deficiency in
performance] was because of [name of defendant]’s use of the plans
and specifications.
New December 2010
Directions for Use
This instruction is a contractor’s affirmative defense to the owner’s claims that there
is a defect in the work or deficiency in the contractor’s performance. (See CACI No.
4510, Breach of Implied Covenant to Perform Work in a Good and Competent
Manner—Essential Factual Elements.) The contractor asserts that any alleged defect
or deficient performance was caused by following the plans and specifications that
were provided by the owner because the plans and specifications were inaccurate or
incomplete. This instruction may be modified for use in the contractor’s action for
compensation from the owner if the owner alleges poor quality work as a defense to
payment.
Sources and Authority
• “[T]he authorities hold that where the plans and specifications were prepared by
the owner’s architect and not by the subcontractor, and since the subcontractor
undertook to do the work in accordance with the specific proposal, it cannot
reasonably be concluded that the subcontractor assumed responsibility for the
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adequacy of the plans and specifications to meet the purpose of the owner, and
where the contractor faithfully performs the work as specified, there cannot be
an implied warranty that the contractor will supplement the inadequacy of the
plans.” (Sunbeam Construction Co. v. Fisci (1969) 2 Cal.App.3d 181, 184–185
[82 Cal.Rptr. 446].)
• “There is no basis for an implied warranty of fitness of the installation since the
work was done in accordance with the plans and specifications supplied by the
owner. . . . ‘In other words, as to the refrigerating plant, defendants got
precisely what they contracted for, and there was no implied warranty that the
machine would answer the particular purpose for which the buyers intended to
use it.’ ” (Corporation of Presiding Bishop of Church of Jesus Christ of Latter-
Day Saints v. Cavanaugh (1963) 217 Cal.App.2d 492, 508–509 [32 Cal.Rptr.
144].)
• “[T]he contractor’s responsibility for any completed portion of the work, so done
under the direction and to the satisfaction of the engineers, relieves him from
responsibility for such an accident as that which befell. . . .” (McConnell v.
Corona City Water Co. (1906) 149 Cal. 60, 63 [85 P. 929].)
Secondary Sources
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, §§ 5.97, 5.98
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.02 (Matthew
Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.42, 104.254 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:99, 29:3 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 1:79 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 9:83 (Thomson Reuters)
Gibbs & Hunt, California Construction Law (Aspen Pub. 16th ed. 1999) Ch. 5,
Breach of Contract by Contractor, § 5.01
4512–4519. Reserved for Future Use
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4520. Contractor’s Claim for Changed or Extra Work
[Name of plaintiff] claims that [name of defendant] required
[him/her/nonbinary pronoun/it] to perform [changed/ [or] extra] work
beyond that required by the contract. [Name of plaintiff] claims that [[he/
she/nonbinary pronoun/it] should be compensated/ [and] should have been
given a time extension] [under the contract].
To succeed on this claim, [name of plaintiff] must prove all of the
following:
1. That the [changed/ [or] extra] work was [not included in/ [or] in
addition to that required under] the original contract;
2. That [name of defendant] directed [name of plaintiff] to perform
the [changed/ [or] extra] work;
3. That [name of plaintiff] performed the [changed/ [or] extra] work;
and
4. That [name of plaintiff] was harmed because [name of defendant]
required the [changed/ [or] extra] work.
New December 2010
Directions for Use
This instruction may be used for claims for changed or extra work by the contractor
against the owner, or for analogous claims asserted by a subcontractor against the
general contractor.
Most construction contracts allow the owner to direct changes in the work and
provide that the contractor will be paid and sometimes receive a time extension for
performing the changed or extra work. Under certain circumstances, extra or
changed work may be priced in the contract (e.g., by unit price or agreed labor rates
and material costs). If so, include “under the contract” in the opening paragraph.
This instruction is based on CACI No. 303, Breach of Contract—Essential Factual
Elements, and CACI No. 350, Introduction to Contract Damages. If the claim is
based on an implied contract for the work, also give CACI No. 305, Implied-in-Fact
Contract.
Sources and Authority
• “Extra work as used in connection with a building contract means work arising
outside of and entirely independent of the contract—something not required in
its performance, not contemplated by the parties, and not controlled by the
contract.” (C.F. Bolster Co. v. J.C. Boespflug Constr. Co. (1959) 167 Cal.App.2d
143, 151 [334 P.2d 247].)
• “Where the extra work and materials furnished are of the same character as the
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work and materials named in the contract, the general rule is that they are to be
paid for according to the schedule of prices fixed by the contract.” (Frank T.
Hickey, Inc. v. Los Angeles Jewish Community Council (1954) 128 Cal.App.2d
676, 684 [276 P.2d 52].)
• “Where the extras are of a different character from the work called for in the
contract and no price is agreed on for extra work, their reasonable value may be
recovered.” (C.F. Bolster Co., supra, 167 Cal.App.2d at p. 151.)
• “What Coleman [Coleman Engineering Co. v. North American Aviation, Inc.
(1966) 65 Cal.2d 396 [55 Cal.Rptr. 1, 420 P.2d 713]] does not expressly address
is whether a contractor faced with a substantial change in its originally
contracted scope of work, who is unable to successfully negotiate a price for that
additional work, may elect to continue to work and reserve its right to
subsequently obtain a judicial determination as to the value of the changes. The
trial court concluded that it may and we agree. So long as the other contracting
party continues to demand performance of the increased scope of work, and in
the absence of any conflicting provision of the contract, the contractor may
continue to work after unsuccessful negotiations and subsequently recover the
value of that work. To hold otherwise would compel a contractor to walk off the
job in the face of what it believes to be major changes in the scope of work
required of it, with significant consequences if its judgment is later proven
wrong, or alternatively forfeit any right to seek compensation for that work,
regardless of the extent of the additional burdens imposed. . . . The
interpretation urged by [defendant] is also impractical and economically
inefficient. Construction projects pose complex time management challenges,
requiring multiple contractors and subcontractors to coordinate their efforts as
numerous design revisions and change orders inevitably arise. To complete these
projects efficiently, the parties must be able to continue working despite contract
disputes with reasonable assurances of the ability to ultimately obtain a fair
resolution of those disputes. (Ted Jacob Engineering Group, Inc. v. The Ratcliff
Architects (2010) 187 Cal.App.4th 945, 966 [114 Cal.Rptr.3d 644].)
Secondary Sources
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.38 et seq.
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.62 et seq.
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.66 et seq.
1 Stein, Construction Law, Ch. 4, Modification and Termination of Construction
Contracts, ¶ 4.06 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.15, 104.215 (Matthew Bender)
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5 California Points and Authorities, Ch. 50, Contracts, § 50.40 (Matthew Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts and Subcontracts,
§ 30D.14 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:61, 27:69 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:34 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 4:23, 4:41 (Thomson Reuters)
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause
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4521. Owner’s Claim That Contract Procedures Regarding Change
Orders Were Not Followed
The contract between the parties provided for certain procedures that
had to be followed if [name of plaintiff] wanted to be paid for changed or
additional work that was not required by the contract. These procedures
are called “change-order requirements.” [The change-order requirements
of the contract provide as follows: [specify].]
[Name of plaintiff] seeks additional compensation beyond that provided
for in the contract for [specify, e.g., fill and grading] because [specify, e.g.,
the soil conditions at the project site were not as represented]. [Name of
defendant] claims that [name of plaintiff] failed to comply with the
contract’s change-order requirements, and that therefore
[he/she/nonbinary pronoun/it] is not entitled to payment for the changed
or additional work that [he/she/nonbinary pronoun/it] performed.
To obtain additional compensation, [name of plaintiff] must prove that
[he/she/nonbinary pronoun/it] [followed/was excused from having to
follow] the change-order requirements.
New December 2010
Directions for Use
This instruction should be given if the owner claims that the contract required the
contractor to request a change order for any claimed changed or additional work
before performing the work as a condition precedent to being permitted to assert a
claim for additional compensation. It is an adaptation of CACI No. 321, Existence
of Condition Precedent Disputed, and CACI No. 322, Occurrence of Agreed
Condition Precedent.
The owner’s claim for strict compliance with the contract’s change-order procedures
is potentially subject to several recognized defenses, including waiver (see CACI
No. 4522, Waiver of Written Approval or Notice Requirements for Changed or
Additional Work), estoppel, and oral modification (see CACI No. 313, Modification;
Civ. Code, § 1698; Girard v. Ball (1981) 125 Cal.App.3d 772, 785 [178 Cal.Rptr.
406].) If one of these defenses is asserted, select “was excused from having to
follow” in the last paragraph and give the appropriate instruction on the excuse from
performance that is at issue.
Sources and Authority
• Modification of Contract. Civil Code section 1698.
• “California courts generally have upheld the necessity of compliance with
contractual provisions regarding written ‘change orders’.” (Weeshoff Constr. Co.
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v. Los Angeles County Flood Control Dist. (1979) 88 Cal.App.3d 579, 589 [152
Cal.Rptr. 19].)
• “It is frequently provided that change orders for extra work must be in writing.
In the absence of a waiver or modification, no recovery can be had for
alterations or extra work performed without compliance with such a provision.”
(G. Voskanian Construction, Inc. v. Alhambra Unified School Dist. (2012) 204
Cal.App.4th 981, 987 [139 Cal.Rptr.3d 286], original italics.)
• “Compliance with contractual provisions for written orders is indispensible in
order to recover for alleged extra work.” (Acoustics, Inc. v. Trepte Construction
(1971) 14 Cal.App.3d 887, 912 [92 Cal.Rptr. 723].)
• “It is elementary a plaintiff suing for breach of contract must prove it has
performed all conditions on its part or that it was excused from performance.
Similarly, where defendant’s duty to perform under the contract is conditioned
on the happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524], internal citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 155
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.44
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, §§ 6.65, 6.67
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.68
1 Stein, Construction Law, Ch. 3, Construction and Design Contracts, ¶ 3.05
(Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.15
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.40 (Matthew Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts and Subcontracts,
§ 30D.14 (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch.15, Attacking or
Defending Existence of Contract—Failure to Comply With Applicable Formalities,
15.25
Miller & Starr, California Real Estate 4th, §§ 27:61, 27:65 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:34 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 4:35–4:47 (Thomson Reuters)
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause,
pp. 100–103
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4522. Waiver of Written Approval or Notice Requirements for
Changed or Additional Work
The contract between the parties required [name of plaintiff] [to obtain
[name of defendant]’s written approval/to give written notice to [name of
defendant]] in order to be paid for changed or additional work that [he/
she/nonbinary pronoun/it] performed.
[Name of defendant] claims that [name of plaintiff] failed to comply with
the contract’s [written approval/ notice] requirements, and that therefore
[name of plaintiff] is not entitled to payment for the changed or
additional work that [he/she/nonbinary pronoun/it] performed. [Name of
plaintiff] claims that [he/she/nonbinary pronoun/it] was not required to
comply with the contract’s [written approval/notice] requirement because
[name of defendant] gave up [his/her/nonbinary pronoun/its] right to insist
on [written approval/notice]. Giving up a contract right is called a
“waiver.”
To succeed on this waiver claim, [name of plaintiff] must prove [by clear
and convincing evidence] that [name of defendant] freely and knowingly
gave up [his/her/nonbinary pronoun/its] right to require [name of plaintiff]
to follow the contract’s [written approval/notice] requirements.
A waiver may be oral or written or may arise from conduct that shows
[name of defendant] clearly gave up that right.
New December 2010; Revised June 2011
Directions for Use
This instruction is a variation of CACI No. 336, Affırmative Defense—Waiver. Use
of this instruction is almost certainly limited to private contract disputes. (See P&D
Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1344 [119
Cal.Rptr.3d 253] [public contract change-order requirements not subject to oral
modification or modification by conduct]; cf. Weeshoff Constr. Co. v. Los Angeles
County Flood Control Dist. (1979) 88 Cal.App.3d 579, 589 [152 Cal.Rptr. 19]
[public agency may waive written change order requirements].)
When a contractor asserts a claim for compensation for changed or additional work
(see CACI No. 4520, Contractor’s Claim for Changed or Extra Work), the owner
may assert that the contractor is not entitled to payment because it failed to obtain
the owner’s written approval or failed to give written notice before performing the
changed or additional work. (See CACI No. 4521, Owner’s Claim That Contract
Procedures Regarding Change Orders Were Not Followed.) The contractor is
entitled to counter this defense by showing that the owner expressly or impliedly
waived the contract’s requirements.
The general rule of contract law is that waiver must be proved by clear and
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convincing evidence. (Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108 [48 Cal.Rptr.
865, 410 P.2d 369].) Some construction law cases, however, have not mentioned this
requirement, though there was no discussion of the burden of proof. (See Healy v.
Brewster (1967) 251 Cal.App.2d 541, 552 [59 Cal.Rptr. 752]; Howard J. White, Inc.
v. Varian Associates (1960) 178 Cal.App.2d 348, 353–355 [2 Cal.Rptr. 871].) If the
clear-and-convincing-evidence requirement is included, also give CACI No. 201,
Highly Probable—Clear and Convincing Proof.
Sources and Authority
• Modification of Contract. Civil Code section 1698.
• Enforceability of Change Orders. Business and Professions Code section 7159.6
(applicable to “home improvement contractors” as defined in Business and
Professions Code section 7150.1).
• “ ‘[W]aiver is the intentional relinquishment of a known right after knowledge of
the facts.’ . . . The burden . . . is on the party claiming a waiver of a right to
prove it by clear and convincing evidence that does not leave the matter to
speculation, and ‘doubtful cases will be decided against a waiver.’ . . . The
waiver may be either express, based on the words of the waiving party, or
implied, based on conduct indicating an intent to relinquish the right.” (Waller v.
Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 [44 Cal.Rptr.2d 370, 900 P.2d
619], internal citations omitted.)
• “It is settled law that the parties may by their conduct waive the requirement of
a written contract that no extra work shall be done except upon written
order. . . . [¶¶] ‘Waiver may be shown by conduct, and it may be the result of
an act which, according to its natural import, is so inconsistent with the intent to
enforce the right in question as to induce a reasonable belief that such right has
been relinquished.’ ” (Howard J. White, Inc., supra, 178 Cal.App.2d at pp.
353–355.)
• “Where the terms of a written contract require that extra work be approved in
writing, such provision may be altered or waived by an executed oral
modification of the contract.” (Healy, supra, 251 Cal.App.2d at p. 552, internal
citations omitted.)
• “[Defendant] places reliance on the provision of the subcontract which provides
that any work involving extra compensation shall not be proceeded with unless
written authority is given by [defendant]. But under section 1698 of the Civil
Code, an executed oral agreement may alter an agreement in writing, even
though, as here, the original contract provides that extra work must be approved
in writing. The oral request for and approval of extra work by [defendant] was,
when fully performed, an oral modification of the written June 8th
subcontract. . . . [¶] Whether a written contract has been modified by an
executed oral agreement is a question of fact, and the finding, in the instant case,
is supported by substantial evidence. . . . [¶] Defendant cannot be heard to say
that a written order was not first obtained as required under the subcontract.
[Defendant] by its acts and conduct waived and is estopped to rely upon the
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subcontract provision requiring its prior written approval before proceeding with
work involving extra compensation.” (MacIsaac & Menke Co. v. Cardox Corp.
(1961) 193 Cal.App.2d 661, 669–670 [14 Cal.Rptr. 523], internal citations
omitted.)
• “The written contract provided that the defendant should not be charged for
‘extras’ unless ordered in writing. Upon this basis defendant contends that
recovery for the ‘extras’ furnished by plaintiff is barred. The provision in a
building contract that an owner may be charged only for ‘extras’ which are
ordered in writing may be waived or modified by an executed oral agreement.
As a consequence, recovery by the contractor for the reasonable value of ‘extras’
has been upheld where they have been furnished at the request of the owner,
became a part of the construction work generally described in the building
contract, and are accepted by him, even though the request therefor was oral and
the building contract provided that he should be chargeable only for such
‘extras’ as were requested in writing.” (1st Olympic Corp. v. Hawryluk (1960)
185 Cal.App.2d 832, 841 [8 Cal.Rptr. 728], internal citations omitted.)
• “Defendants concede that the labor for which payment is sought was actually
performed and that the backfill was supplied. They accept the finding that the
charges were reasonable, and the record discloses that the benefits of the labor
and material have accrued to the premises. Defendants rest their contentions on
the provision of the contract requiring written change orders. The parties may, by
their conduct, waive such a provision with the result that the subcontractor does
extra work without a written order. If the circumstances indicate that the parties
intended to waive the provision, the subcontractor will be protected.” (Frank T.
Hickey, Inc. v. Los Angeles Jewish Community Council (1954) 128 Cal.App.2d
676, 682–683 [276 P.2d 52], internal citations omitted.)
• “The record shows that extras were ordered and approved by [cross-defendant]
in the amount of $8,097.50. Under the law this amounted to a modification of
the written contract. [Cross-defendant] places great reliance on the provision of
the contract which provides that alterations must be in writing, and points out
here that he only approved one alteration in writing. But under section 1698 of
the Civil Code, an executed oral agreement may alter an agreement in writing,
even though, as here, the original contract provides that all changes must be
approved in writing. This is so because the executed oral agreement may alter or
modify that provision of the contract as well as other portions.” (Miller v. Brown
(1955) 136 Cal.App.2d 763, 775 [289 P.2d 572], internal citation omitted.)
• “The evidence showed that the extra work on the building was done with the
knowledge and consent of defendant and his agent, and that they waived the
written stipulation that a separate written estimate of extra work should be
submitted, by orally agreeing to and countenancing the work without written
estimates. Had it not been for defendant’s consent thus given, the work would
not have been thus done. He will not now be permitted to repudiate work done
in the manner that he consented to, on any ground that it was not done in
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accordance with a previous written agreement.” (Wyman v. Hooker (1905) 2
Cal.App. 36, 41 [83 P. 79].)
• “Unlike private contracts, public contracts requiring written change orders cannot
be modified orally or through the parties’ conduct. Thus, even if [plaintiff]’s
evidence pertaining to the oral authorizations of a city employee for extra work
is fully credited, [plaintiff] cannot prevail.” (P&D Consultants, Inc., supra, 190
Cal.App.4th at p. 1335.)
• “California courts generally have upheld the necessity of compliance with
contractual provisions regarding written ‘change orders.’ . . . However,
California decisions have also established that particular circumstances may
provide waivers of written ‘change order’ requirements. If the parties, by their
conduct, clearly assent to a change or addition to the contractor’s required
performance, a written ‘change order’ requirement may be waived.” (Weeshoff
Constr. Co., supra, 88 Cal.App.3d at p. 589, internal citations omitted.)
• “In addition to being factually inapposite, the continuing viability of Weeshoff is
questionable. In pronouncing that ‘California decisions have also established that
particular circumstances may provide waivers of written “change order”
requirements,’ and ‘[i]f the parties, by their conduct, clearly assent to a change
or addition to the contractor’s required performance, a written “change order”
requirement may be waived,’ the court cited cases involving private parties, not
public agencies . . . . Since its publication 28 years ago, no case has cited
Weeshoff for this point. This is understandable as it is contrary to the great
weight of authority, cited above, to the contrary.” (Katsura v. City of San
Buenaventura (2007) 155 Cal.App.4th 104, 111 [65 Cal.Rptr.3d 762], internal
citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 1000
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, §§ 5.44–5.47
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, § 9.69
1 Stein, Construction Law, Ch. 3, Construction and Design Contracts, § 3.02
(Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.15
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.522 et seq. (Matthew
Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts and Subcontracts,
§ 30D.14 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:61, 27:65–27:66 (Thomson
Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 1:40–1:47 (Thomson
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Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:71 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 4:39–4:40 (Thomson Reuters)
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 13,
Everything You Ever Wanted to Know About Extra Work and the Changes Clause,
pp. 103–106
Kamine, Public Works Construction Manual (BNI Publications, Inc. 1996) Ch. 16,
Written Extra Work Order Gotcha
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4523. Contractor’s Claim for Additional
Compensation—Abandonment of Contract
The contract between the parties provided for certain procedures to be
followed if [name of plaintiff] wanted to be paid for changed or additional
work that was not initially required by the contract. These procedures
are called “change-order requirements.”
[Name of plaintiff] claims that [name of defendant] required many changes
and that the parties consistently ignored the contract’s change-order
requirements. Therefore, [name of plaintiff] claims that the contract was
abandoned and that the change-order requirements no longer applied.
To establish this claim, [name of plaintiff] must prove the following:
1. That the parties through their conduct consistently disregarded
the contract’s change-order requirements; and
2. That the scope of work under the original contract had been
altered by the changes so much that the final project was
significantly different from the original project.
New December 2010
Directions for Use
This instruction is a contractor’s response if the owner asserts that the contractor is
not entitled to additional compensation for changed or additional work. (See CACI
No. 4521, Owner’s Claim That Contract Procedures Regarding Change Orders Were
Not Followed.) It should be given if the contractor claims that through their
conduct, the parties acted in a manner that indicated that they had entirely
abandoned their original contract.
For instructions on damages after it has been established that the contract was
abandoned, see CACI No. 4541, Contractor’s Damages for Breach of Construction
Contract—Change Orders/Extra Work—Total Cost Recovery, and CACI No. 4542,
Contractor’s Damages for Abandoned Construction Contract—Quantum Meruit
Recovery.
This instruction may not be used against a public entity. A contractor may not claim
that a public entity has abandoned the applicable contract change order procedures
on a project subject to competitive bidding in such a way as to increase the contract
price because doing so would violate the public policy regarding competitive
bidding. (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 239 [115
Cal.Rptr.2d 900, 38 P.3d 1120].)
Sources and Authority
• “[T]his court has not generally allowed quantum meruit recovery for extra work
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performed beyond the contract requirements.” (Amelco Electric, supra, 27
Cal.4th at p. 234.)
• “[W]hen an owner imposes upon the contractor an excessive number of changes
such that it can fairly be said that the scope of the work under the original
contract has been altered, an abandonment of contract properly may be found.”
(C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d 628,
640 [218 Cal.Rptr. 592].)
• “Abandonment of a contract may be implied from the acts of the parties.
Abandonment of the contract can occur in instances where the scope of the work
when undertaken greatly exceeds that called for under the contract. . . . In the
instant case the parties consistently ignored the procedures provided by the
contract for the doing of extra work.” (Daugherty Co. v. Kimberly-Clark Corp.
(1971) 14 Cal.App.3d 151, 156 [92 Cal Rptr. 120], internal citation omitted.)
• “Under the abandonment doctrine, once the parties cease to follow the contract’s
change order process, and the final project has become materially different from
the project contracted for, the entire contract—including its notice,
documentation, changes and cost provisions—is deemed inapplicable or
abandoned, and the plaintiff may recover the reasonable value for all of its work.
Were we to conclude such a theory applied in the public works context, the
notion of competitive bidding would become meaningless.” (Amelco Electric,
supra, 27 Cal.4th at p. 239.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 1037
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.56
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.71
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.81–9.87
1 Stein, Construction Law, Ch. 3, Construction and Design Contracts, ¶ 3.10
(Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.15, 104.230 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.470 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:66, 27:87 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 1:48 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:72 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 4:14 (Thomson Reuters)
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4524. Contractor’s Claim for Compensation Due Under
Contract—Substantial Performance
[Name of defendant] claims that [name of plaintiff] did not fully perform
all of the things that [he/she/nonbinary pronoun/it] was required to do
under the [terms of the contract/plans and specifications], and therefore
[name of defendant] did not have to [specify owner’s obligations under the
contract, e.g., pay the contract balance]. [Name of plaintiff] claims that [he/
she/nonbinary pronoun/it] did substantially all of the things required of
[him/her/nonbinary pronoun/it] under the contract.
To succeed, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] made a good-faith effort to comply with
the terms of the contract and did not willfully depart from them;
2. That [name of plaintiff] did not omit any essential requirement in
the contract; and
3. That the [name of defendant] received essentially what the contract
called for because [name of plaintiff]’s failures, if any, were so
trivial that they could have been easily fixed.
If you find that [name of plaintiff] substantially performed the contract,
the cost of completing unfinished work must be deducted from the
contract price.
New December 2010
Directions for Use
This instruction is a variation of CACI No. 312, Substantial Performance. It should
be used if the issue is whether the contractor performed all of the requirements of
the construction contract, including the plans and specifications. If the owner
withholds some or all of the contract price because it claims that the contractor did
not perform the work completely or correctly, the contractor may assert that it
“substantially performed.”
Sources and Authority
• “ ‘At common law, recovery under a contract for work done was dependent upon
complete performance, although hardship might be avoided by permitting
recovery in quantum meruit. The prevailing doctrine today, which finds its
application chiefly in building contracts, is that substantial performance is
sufficient, and justifies an action on the contract, although the other party is
entitled to a reduction in the amount called for by the contract, to compensate
for the defects. What constitutes substantial performance is a question of fact,
but it is essential that there be no wilful departure from the terms of the contract,
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and that the defects be such as may be easily remedied or compensated, so that
the promisee may get practically what the contract calls for.’ ” (Posner v.
Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 186–187 [14 Cal.Rptr. 297, 363 P.2d
313], original italics, internal citation omitted.)
• “ ‘Substantial performance means that there has been no willful departure from
the terms of the contract, and no omission of any of its essential parts, and that
the contractor has in good faith performed all of its substantive terms. If so, he
will not be held to have forfeited his right to a recovery by reason of trivial
defects or imperfections in the work performed.’ ” (Connell v. Higgins (1915)
170 Cal. 541, 556 [150 P. 769], internal citation omitted.)
• “What constitutes ‘substantial performance’ ‘is always a question of fact, a
matter of degree, a question that must be determined relatively to all the other
complex factors that exist in every instance.’ ” (Tolstoy Constr. Co. v. Minter
(1978) 78 Cal.App.3d 665, 672 [143 Cal.Rptr. 570], internal citation omitted.)
• “ ‘Whether, in any case, such defects or omissions are substantial, or merely
unimportant mistakes that have been or may be corrected, is generally a question
of fact.’ ” (Connell, supra, 170 Cal. at pp. 556–557, internal citation omitted.)
• “ ‘The general rule on the subject of [contractual] performance is that “[w]here a
person agrees to do a thing for another for a specified sum of money to be paid
on full performance, he is not entitled to any part of the sum until he has
himself done the thing he agreed to do, unless full performance has been
excused, prevented, or delayed by the act of the other party, or by operation of
law, or by the act of God or the public enemy.” [Citation.] . . . [I]t is settled,
especially in the case of building contracts where the owner has taken possession
of the building and is enjoying the fruits of the contractor’s work in the
performance of the contract, that if there has been a substantial performance
thereof by the contractor in good faith, where the failure to make full
performance can be compensated in damages to be deducted from the price or
allowed as a counterclaim, and the omissions and deviations were not willful or
fraudulent and do not substantially affect the usefulness of the building for the
purposes for which it was intended, the contractor may, in an action upon the
contract, recover the amount unpaid of his contract price, less the amount
allowed as damages for the failure in strict performance. [Citations.]’ ” (Murray’s
Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1291–1292 [71
Cal.Rptr.3d 317].)
• “ ‘[T]here is a substantial performance where the variance from the specifications
of the contract does not impair the building or structure as a whole, and where
after it is erected the building is actually used for the intended purpose, or where
the defects can be remedied without great expenditure and without material
damage to other parts of the structure, but that the defects must not run through
the whole work so that the object of the owner in having the work done in a
particular way is not accomplished, or be such that a new contract is not
substituted for the original one, nor be so substantial as not to be capable of a
remedy and the allowance out of the contract price will not give the owner
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essentially what he contracted for.’ ” (Murray’s Iron Works, Inc., supra, 158
Cal.App.4th at p. 1292.)
• “The rule of substantial performance was intended to cover situations where the
defects are slight or trivial, or where the imperfections do not affect a
substantive part of the work, but it was not intended to cover cases where the
departures or deviations from the plans are major, where it takes a major
operation to remedy the defects, or where the work as constructed is of no real
value.” (Bause v. Anthony Pools, Inc. (1962) 205 Cal.App.2d 606, 613 [23
Cal.Rptr. 265].)
• “[A]lthough in a few minor and trivial matters the building did not strictly and
technically comply with the terms of the contract, the departure was not willful
nor intentional on the part of the defendant, and the defects were capable of
being easily remedied to conform to the terms of the contract . . . . Thereupon
the court concluded that the defendant was entitled to have the contract enforced
in his favor, with an abatement . . . on the contract price on account of the
defects found to exist . . . .” (Rischard v. Miller (1920) 182 Cal. 351, 352–353
[188 P. 50].)
• “[The] performance rendered may be held to be less than substantial by reason
of the accumulation of many defects, any one of which standing alone would be
minor in character.’ ” (Tolstoy Constr. Co., supra, 78 Cal.App.3d at p. 673,
footnote omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 843–844
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.99
13 California Forms of Pleadings and Practice, Ch. 140, Contracts, § 140.23
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.30, 50.31 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08[2], 22.16[2], 22.37, 22.69
Miller & Starr, California Real Estate 4th, §§ 27:103, 29:3 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 1:54 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 18:12 (Thomson Reuters)
4525–4529. Reserved for Future Use
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4530. Owner’s Damages for Breach of Construction
Contract—Work Does Not Conform to Contract
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun] claim against [name of defendant] for failure to properly build
the [project/describe construction project, e.g., apartment building], you
also must decide how much money will reasonably compensate [name of
plaintiff] for the harm. This compensation is called “damages.”
To recover damages, [name of plaintiff] must prove the reasonable cost of
repairing the [project/short term for project, e.g., building] so that it
complies with the terms of the contract, including the plans and
specifications, agreed to by the parties.
If, however, [name of defendant] proves that the cost of repair is
unreasonable in light of the damage to the property and the property’s
value after repair, then [name of plaintiff] is entitled only to the difference
between the value of the [project/short term for project, e.g., remodeling]
as it was performed by [name of defendant] and what it would be worth
if it had been completed according to the contract, including the plans
and specifications, agreed to by the parties. The cost of repair may be
unreasonable if the repair would require the destruction of a substantial
part of [name of defendant]’s work.
New December 2010
Directions for Use
This instruction should be used when the owner claims that the contractor has
breached the construction contract by failing to meet the requirements of the
contract or its plans and specifications. If the owner claims that the contractor
breached the contract by failing to complete all work required by the contract, see
CACI No. 4531, Owner’s Damages for Breach of Construction Contract—Failure to
Complete Work.
The basic measure of damages is the cost of repair to bring the project into
compliance with the contract. (Glendale Fed. Sav. & Loan Assn. v. Marina View
Heights Dev. (1977) 66 Cal.App.3d 101, 123–124 [135 Cal.Rptr. 802].) However,
the contractor may attempt to prove that the cost of repair is unreasonable in light
of the damage to the property and the value of the property after repair. (Orndorff v.
Christiana Community Builders (1990) 217 Cal.App.3d 683, 687 [266 Cal.Rptr.
193]; see Shell v. Schmidt (1958) 164 Cal.App.2d 350, 366 [330 P.2d 817] [burden
of proof on contractor].) If the cost of repair is unreasonable, the measure of
damages is the diminution in the value of the property because of the defective
work. (Shell, supra, 164 Cal.App.2d at pp. 360–361.)
There is no cap, however, at diminution of value. The cost of repair may be
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awarded even if greater than diminution in value if the owner has a personal reason
for wanting to repair and the costs are not unreasonable in light of the damage to
the property and the value after repair (Orndorff, supra, 217 Cal.App.3d at p. 687.)
For a related instruction on damages for tortious injury to property, see CACI No.
3903F, Damage to Real Property (Economic Damage). For additional instructions
on contract damages generally, see CACI No. 350 et seq. in the Contracts series.
Sources and Authority
• Damages for Breach of Contract. Civil Code section 3300.
• Damages Must Be Reasonable. Civil Code section 3359.
• “The available damages for defective construction are limited to the cost of
repairing the home, including lost use or relocation expenses, or the diminution
in value.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 561 [87 Cal.Rptr.2d 886,
981 P.2d 978].)
• “The proper measure of damages for breach of a contract to construct
improvements on real property where the work is to be done on plaintiff’s
property is ordinarily the reasonable cost to the plaintiff of completing the work
and not the difference between the value of the property and its value had the
improvements been constructed. A different rule applies, however, where
improvements are to be made on property not owned by the injured party. ‘In
that event the injured party is unable to complete the work himself and, subject
to the restrictions of sections 3300 and 3359 of the Civil Code, the proper
measure of damages is the difference in value of the property with and without
the promised performance, since that is the contractual benefit of which the
injured party is deprived.’ ” (Glendale Fed. Sav. & Loan Assn., supra, 66
Cal.App.3d at pp. 123–124, internal citations omitted.)
• “[E]ven where the repair costs are reasonable in relation to the value of the
property, those costs must also be reasonable in relation to the harm caused.
Here the trial court’s finding that fill settlement was likely to continue and the
[plaintiff]s’ appraiser’s opinion the home was worth only $67,500 in its present
condition, suggest the damage sustained was indeed significant. Plainly this is
not a case where the tortfeasors’ conduct improved the value of the real property
or only diminished it slightly. Rather we believe where, as here, the damage to a
home has deprived it of most of its value, an award of substantial repair costs is
appropriate.” (Orndorff, supra, 217 Cal.App.3d at pp. 690–691.)
• “[T]he defendant did not prove, or offer to prove, the other factors of the
American Jurisprudence rule, to wit: ‘a substantial part of what has been done
must be undone.’ To the contrary, defendant’s expert witness . . . testified that it
would not be necessary to undo any of the work. [¶] As quoted, Professor
Corbin argues that the burden is on the defendant to affirmatively and
convincingly prove that economic waste would result from the replacement of
the omissions and defects. In all fairness this would appear proper as it is the
defendant who is seeking to prove a situation whereby he will get equitable
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relief from a rule of law. The same reasoning would apply as to proof that a
substantial part of what has been done must be undone.” (Shell, supra, 164
Cal.App.2d at p. 366.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 937
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.90 et seq.
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.92–9.93
2 Stein, Construction Law, Ch. 5B, Contractor’s and Construction Manager’s Rights
and Duties, ¶ 5B.01 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.25
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.47
(Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:99, 29:3, 29:10 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 1:71, 1:72 (Thomson
Reuters)
Bruner & O’Connor on Construction Law, §§ 19:57–19:61 (Thomson Reuters)
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4531. Owner’s Damages for Breach of Construction
Contract—Failure to Complete Work
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant] for failure to complete the
[project/describe construction project, e.g., kitchen remodeling], you also
must decide how much money will reasonably compensate [name of
plaintiff] for the harm. This compensation is called “damages.”
To recover damages, [name of plaintiff] must prove the reasonable cost of
completing the [project/short term for project, e.g., remodeling] so that it
complies with the terms of the contract, including the plans and
specifications, agreed to by the parties.
New December 2010
Directions for Use
This instruction should be used when the owner claims that the contractor has
breached the construction contract by failing to complete all the work required by
the contract. For an instruction for use if the owner claims that the contractor
breached the contract by failing to complete the work in conformity with the
contract, see CACI No. 4530, Owner’s Damages for Breach of Construction
Contract—Work Does Not Conform to Contract.
The basic measure of damages for failing to complete a construction project is
ordinarily the reasonable cost to the owner of completing the work. (Glendale Fed.
Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 123
[135 Cal.Rptr. 802].) With regard to defective or nonconforming work, the
contractor may attempt to prove that the cost or repair is unreasonable in light of
the damage to the property and the value of the property after repair. If the cost of
repair is unreasonable, the measure of damages is the diminution in the value of the
property because of the defective work. (Shell v. Schmidt (1958) 164 Cal.App.2d
350, 366 [330 P.2d 817]; see also Orndorff v. Christiana Community Builders (1990)
217 Cal.App.3d 683, 687 [266 Cal.Rptr. 193] [cost of repair may exceed diminution
in value if owner has personal reason for wanting repairs].)
No reported case has been found that applies a reasonableness limitation on the cost
of completing a contract, though the Restatement Second of Contracts requires that
the cost of completion not be clearly disproportionate to the probable loss in value.
(See Rest.2d of Contracts, § 348(2).) The last paragraph of CACI No. 4530 may be
adapted to provide for a reasonableness limitation on cost of repair. There may,
however, be different concerns regarding the cost of completing a contract as
opposed to the cost of repairing construction defects. It might be argued that the
owner is entitled to have the work completed as required by the contract, regardless
of any unexpected increases in the cost of completion.
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For a related instruction on damages for tortious injury to property, see CACI No.
3903F, Damage to Real Property (Economic Damage). For additional instructions
on contract damages generally, see CACI No. 350 et seq. in the Contracts series.
Sources and Authority
• Damages for Breach of Contract. Civil Code section 3300.
• Damages Must Be Reasonable. Civil Code section 3359.
• “The measure of damages for breach of contract to construct improvements on
real property where the work is to be done on plaintiff’s property is the
reasonable cost to the plaintiff to finish the work in accordance with the
contract.” (Walker v. Signal Companies, Inc. (1978) 84 Cal.App.3d 982, 993
[149 Cal.Rptr. 119].)
• “Although the defendants inferentially contend to the contrary, the plaintiff was
entitled to recover damages from them for their breach of the contract even
though [plaintiff] had not completed the work in question.” (Fairlane Estates,
Inc. v. Carrico Constr. Co. (1964) 228 Cal.App.2d 65, 72–73 [39 Cal.Rptr. 35].)
• Restatement Second of Contracts, section 348(2) provides: “If a breach results in
defective or unfinished construction and the loss in value to the injured party is
not proved with sufficient certainty, he may recover damages based on: (a) the
diminution in the market price of the property caused by the breach, or (b) the
reasonable cost of completing performance or of remedying the defects if that
cost is not clearly disproportionate to the probable loss in value to him.”
Secondary Sources
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.96
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.02 (Matthew
Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§ 104.256 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.41 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:106, 27:107, 29:10 (Thomson
Reuters)
Acret, California Construction Law Manual (6th ed) §§ 1:71, 1:72 (Thomson
Reuters)
Bruner & O’Connor on Construction Law, § 19:56 (Thomson Reuters)
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4532. Owner’s Damages for Breach of Construction
Contract—Liquidated Damages Under Contract for Delay
[Name of plaintiff] claims that [name of defendant] breached the parties’
contract by failing to [substantially] complete the [project/describe
construction project, e.g., apartment building] by the completion date
required by the contract. If you find that [name of plaintiff] has proven
this claim, the parties’ contract calls for damages in the amount of
$ for each day between [insert contract completion date] and the
date on which the project was [substantially] completed. You will be
asked to find the date on which the project was [substantially]
completed. I will then calculate the amount of damages.
[If you find that [name of plaintiff] granted or should have granted time
extensions to [name of defendant], you will be asked to find the number of
days of the time extension and add these days to the completion date set
forth in the contract. I will then calculate [name of plaintiff]’s total
damages.]
New December 2010; Revised December 2011
Directions for Use
This instruction should be used when the owner seeks to recover liquidated damages
against the contractor for delay in completing the project under a provision of the
contract. Include the optional second paragraph if there is a dispute over whether the
contractor is entitled to an extension of time. Give CACI No. 4520, Contractor’s
Claim for Changed or Extra Work, to guide the jury on how to determine if the
contractor is entitled to a time extension for extra work. A special instruction may
be required to guide the jury on how to determine if the contractor is entitled to a
time extension for excusable or compensable delays.
Include “substantially” throughout if there is a dispute of fact as to when the project
should be considered as finished. Unless otherwise defined by the contract to mean
actual completion or some other measure of completion (see, e.g., London
Guarantee & Acc. Co. v. Las Lomitas School Dist. (1961) 191 Cal.App.2d 423, 427
[12 Cal.Rptr. 598]), “completion” for the purpose of determining liquidated damages
ordinarily is understood to mean “substantial completion.” (See Vrgora v. L.A.
Unified Sch. Dist. (1984) 152 Cal.App.3d 1178, 1186 [200 Cal.Rptr. 130]; see
generally Perini Corp. v. Greate Bay Hotel & Casino, Inc. (1992) 129 N.J. 479,
500–501, overruled on other grounds in Tretina v. Fitzpatrick & Assocs. (1994) 135
N.J. 349, 358 [discussing standard practices in the construction industry].)
There are few or no general principles set forth in California case law as to what
may constitute substantial completion. It would seem to be dependent on the unique
facts of each case. (See, e.g., Continental Illinois Nat’l Bank & Trust Co. v. United
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States (1952) 121 Ct.Cl. 203, 243–244.) The related doctrine of substantial
performance, which allows the contractor to obtain payment for its work even if
there are some minor or trivial deviations from the contract requirements, may
perhaps be looked to for guidance for when a project is substantially complete for
purposes of stopping the running of the clock on liquidated damages. (See CACI
No. 4524, Contractor’s Claim for Compensation Due Under Contract—Substantial
Performance.) But they are separate doctrines. Substantial performance focuses on
what was done. Substantial completion focuses on when it was done. (See Hill v.
Clark (1908) 7 Cal.App. 609, 612 [95 P. 382] [only substantial performance, not
substantial completion, was at issue].) See also Code Civ. Proc., § 337.15 and CACI
No. 4551, Affırmative Defense—Statute of Limitations—Latent Construction Defect
(limitation period begins to run on substantial completion).
If the liquidated damages provision is found to be unenforceable because its
enforcement would constitute a penalty rather than an approximation of actual
damages that are difficult to ascertain, the owner may be entitled to recover its
general and special damages, as those damages are defined in CACI No. 350,
Introduction to Contract Damages, and CACI No. 351, Special Damages.
Sources and Authority
• Excused Performance of Contract. Civil Code section 1511(1).
• Liquidated Damages. Civil Code section 1671(b).
• Time for Completion: Liquidated Damages. Public Contract Code section 10226.
• “Liquidated damage clauses in public contracts are frequently validated precisely
because delay in the completion of projects such as highways ‘would cause
incalculable inconvenience and damage to the public.’ . . . Thus, it is accepted
that damage in the nature of inconvenience and loss of use by the public are real
but often, as a matter of law, not measurable.” (Westinghouse Electric Corp. v.
County of Los Angeles (1982) 129 Cal.App.3d 771, 782–783 [181 Cal.Rptr.
332], internal citations omitted.)
• “[I]n the absence of a contractual provision for extensions of time, the rule
generally followed is that an owner is precluded from obtaining liquidated
damages not only for late completion caused entirely by him but also for a delay
to which he has contributed, even though the contractor has caused some or
most of the delay. . . . Acceptance of the reasoning urged by defendant would
mean that, solely because there has been noncompliance with an extension-of-
time provision, the position of an owner could be completely changed so that he
could withhold liquidated damages for all of the period of late completion even
though he alone caused the delay.” (Peter Kiewit Sons’ Co. v. Pasadena City
Junior College Dist. (1963) 59 Cal.2d 241, 245 [28 Cal.Rptr. 714, 379 P.2d 18],
internal citation omitted.)
• “If the contractor wished to claim it needed an extension of time because of
delays caused by the city, the contractor was required to obtain a written change
order by mutual consent or submit a claim in writing requesting a formal
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decision by the engineer. It did neither. The court was correct to rely on its
failure and enforce the terms of the contract. It makes no difference whether
[contractor]’s timely performance was possible or impossible under these
circumstances. The purpose of contract provisions of the type authorized by the
1965 amendment to Civil Code section 1511, subdivision 1, is to allocate to the
contractor the risk of delay costs—even for delays beyond the contractor’s
control—unless the contractor follows the required procedures for notifying the
owner of its intent to claim a right to an extension.” (Greg Opinski Construction,
Inc. v. City of Oakdale (2011) 199 Cal.App.4th 1107, 1117–1118 [132
Cal.Rptr.3d 170].)
• “[A]cceptance may not be arbitrarily delayed to the prejudice of a contractor,
and work should be viewed as accepted when it is finished even though a
governmental body specifies a later date.” (Peter Kiewit Sons’ Co., supra, 59
Cal.2d at p. 246.)
• “Lacking any authority, appellant asserts ‘that something is wrong here’ and ‘[it]
does not make sense to compensate the owner for the loss of use of something
that it is actually using.’ For all practical purposes, we perceive appellant as
attempting to invoke the equitable doctrine of unjust enrichment and therein seek
a setoff. The No. 1 problem with the applicability of said theory is that although
[defendant] may have benefitted by using the facility, the fact that the facility
had not been fully or even substantially completed suggests that the enrichment
obtained is de minimis or is at best undefinable.” (Vrgora, supra, 152
Cal.App.3d at p. 1186, footnote omitted.)
• “Was the contract completed on September 5, 1953? The trial court did not find
that the building was completed on that date. It found that it was ‘substantially
completed.’ On September 8, 1953, the uncontradicted evidence shows that some
of the class rooms were insufficiently complete to be used; the plumbing was not
complete; and the fencing of the playground had not been started. There were
workmen in the building and there was grading equipment in the yard area. The
salary of the inspector for the school district, who was required by state law, had
to be paid until October 22, 1953. The inspector’s report made on September 1,
1953, showed that the work was 94 per cent complete as of that time. His report
made on September 16, 1953 showed the work to be 96 per cent complete. On
September 16 there was admittedly about $ 9,800 worth of work yet to be done.
The contract called for a complete building and not a substantially complete one.
[¶] The fact that the school district occupied portions of the building on
September 8, 1953, does not change the situation. [The contract] provides that
occupancy of any portion of the building ‘. . . shall not constitute an acceptance
of any part of the work, unless so stated in writing by the Board of the District.’
The board of the district did not so state.”(London Guarantee & Acc. Co., supra,
191 Cal.App.2d at pp. 426–427.)
• “In London Guar. & Acc. Co. v. Las Lomitas School Dist., supra, 191
Cal.App.2d 423, the appellate court reviewed the efficacy of an ‘adjusted’
liquidated damages award by the trial court on the basis of the date of
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‘substantial completion’ as opposed to ‘actual completion.’ . . . The appellate
court reversed the trial court’s judgment, finding no validity to the argument
employed at trial, that once the contractor had substantially performed his
obligation (96 percent completion of the building), the school district was not
entitled to liquidated damages. In effect, the court held that since the parties
contracted for ‘actual’ performance in the form of a ‘. . . complete building and
not a substantially complete one’, liquidated damages were appropriate.”
(Vrgora, supra, 152 Cal.App.3d at p. 1187, internal citation omitted.)
• “We perceive no error in the action of the court sustaining the objection to a
question asked defendant, as follows: ‘Can you state to the court how much and
to what extent you have been injured by the failure of the plaintiff to complete
this work; the question is, can you tell?’ The contract provided for a fixed sum
as liquidated damages for delay in the completion of the work beyond the time
specified in the contract. No issue was presented as to the amount of the
liquidated damages, or claim on account thereof, and the question objected to
could have no reference thereto; and the court finding that the contract was
substantially completed, there was no room for inquiry as to the damages, and
no prejudice could result to defendant from such ruling.” (Hill, supra, 7
Cal.App. at p. 612.)
• “Finding 51 shows that the work . . . was 99.6% complete on December 30, as
of which day liquidated damages began, and that the only work remaining to be
done had to do with the boiler house equipment, and certain ‘punch list items’
which are usually minor adjustments which recur for an indefinite time after the
completion of an extensive building project. The boiler house work would,
apparently, not have interfered with the occupancy of the houses by tenants, and
tenants in new houses expect to be troubled for a while by adjustments due to
tests. Two hundred dollars a day was a severe penalty for so slight an asserted
delinquency and our observation of other cases tells us that it is not customary
to draw the line so strictly. The refusal, which we hold unjustified, of the
Government to accept the project on December 30, 1936, subjected the
contractor, not only to the liquidated damages discussed above, but to continued
expenditures for coal, light, power and fire insurance in the amount of $2,454.75.
The plaintiff may recover this amount.” (Continental Illinois Nat’l Bank & Trust
Co., supra, 121 Ct.Cl. at pp. 243–244.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 507
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.112
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.91 et seq.
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.103, 9.107
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.02 (Matthew
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Bender)
12 California Real Estate Law and Practice, Ch. 434, Government Contracts,
§ 434.41 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.27, 104.226 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.211 (Matthew Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts and Subcontracts,
§ 30D.224 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.243 (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.05[3]
Miller & Starr, California Real Estate 4th, § 27:81 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 1:86–1:88, 7:84, 7:85
(Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 15:15, 15:82 (Thomson Reuters)
Gibbs & Hunt, California Construction Law, Ch. 5, Breach of Contract by
Contractor, § 5.02 (Aspen Pub. 16th ed. 1999)
4533–4539. Reserved for Future Use
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4540. Contractor’s Damages for Breach of Construction
Contract—Change Orders/Extra Work
[Name of plaintiff] contends that [name of defendant] increased or changed
the scope of the [project/describe construction project, e.g., apartment
building] beyond what was required by the parties’ contract. If you find
that [name of plaintiff] is entitled to compensation for this extra work,
you may award damages to [name of plaintiff] based on [the agreed price
provided in the parties’ contract for/the reasonable value of] the extra
work.
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner for
extra work that the owner required and that was not provided for in the contract. In
the last sentence, give the first alternative if there was evidence that the parties
agreed, in writing or otherwise, on compensation for the extra work. Otherwise give
the second option for the reasonable value of the work.
Under very limited circumstances, the contractor may obtain a “total-cost” recovery
for extra work, meaning that instead of proving the costs associated with all of the
changes, the contractor computes the total cost of the project and subtracts the
contract price. For an instruction on total-cost recovery, see CACI No. 4541,
Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra
Work—Total Cost Recovery.
Under other circumstances, the contractor may attempt to establish that the contract
was mutually abandoned and that the recovery should be in quantum meruit. For an
instruction on damages on abandonment, see CACI No. 4542, Contractor’s
Damages for Abandoned Construction Contract—Quantum Meruit Recovery.
For additional instructions on contract damages generally, see CACI No. 350 et seq.
in the Contracts series.
Sources and Authority
• “Extra work as used in connection with a building contract means work arising
outside of and entirely independent of the contract—something not required in
its performance, not contemplated by the parties, and not controlled by the
contract. Extra work may be performed by the contractor for the owner or by the
subcontractor for the general contractor, Where the extras are of a different
character from the work called for in the contract and no price is agreed on for
extra work, their reasonable value may be recovered.” (C. F. Bolster Co. v. J. C.
Boespflug Constr. Co. (1959) 167 Cal.App.2d 143, 151 [334 P.2d 247], internal
citations omitted.)
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• “Whether a contractor is entitled to additional compensation for extra work
depends generally on the construction of the particular contract and whether it is
included in the contract price. The construction placed on the contract by the
parties is of great weight, and where they agree on additional compensation for
certain work it precludes a claim that the original contract requires the
performance of such work.” (Frank T. Hickey, Inc. v. Los Angeles Jewish
Community Council (1954) 128 Cal.App.2d 676, 683 [276 P.2d 52].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 939
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, §§ 5.49–5.50
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, §§ 6.70–6.73
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.70–9.73
1 Stein, Construction Law, Ch. 4, Modification and Termination of Construction
Contracts, ¶ 4.03 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.15
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.40 (Matthew Bender)
Miller & Starr, California Real Estate 4th, §§ 27:61, 27:69 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:71 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 4:16 (Thomson Reuters)
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4541. Contractor’s Damages for Breach of Construction
Contract—Change Orders/Extra Work—Total Cost Recovery
[Name of plaintiff] claims that [name of defendant] breached the parties’
contract by increasing or changing the scope of the [project/describe
construction project, e.g., apartment building] beyond what was required
by the contract. [Name of plaintiff], therefore, seeks to recover the total
cost of all of [his/her/nonbinary pronoun/its] work on the [project/e.g.,
apartment building].
In order to recover the total cost of all of [his/her/nonbinary pronoun/its]
work, [name of plaintiff] must prove all of the following:
1. That the scope of work under the original contract had been
altered by the changes so much that the final project was
significantly different from the original project;
2. That because of the scope of the changes, it is not practical to
prove the actual additional costs caused by each change
demanded by [name of defendant];
3. That [name of plaintiff]’s original bid that was accepted by [name
of defendant] was reasonable;
4. That [name of plaintiff]’s actual costs were reasonable; and
5. That [name of plaintiff] was not responsible for incurring the
additional costs.
If you find that [name of plaintiff] has established all of the above,
determine [name of plaintiff]’s damages by subtracting the contract price
from the total cost of [name of plaintiff]’s performance of the work.
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner if
the contractor claims that changes demanded by the owner were such that damages
must be measured by computing the total cost to the contractor to complete the
contract minus the contract price. (Cf. CACI No. 4540, Contractor’s Damages for
Breach of Construction Contract—Change Orders/Extra Work.) The difference is
then considered to be the costs associated with all of the changes. For an instruction
on quantum meruit recovery under the related but different theory of contract
abandonment, see CACI No. 4542, Contractor’s Damages for Abandoned
Construction Contract—Quantum Meruit Recovery.
For additional instructions on contract damages generally, see CACI No. 350 et seq.
in the Contracts series.
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Sources and Authority
• “Under [the total-cost] method, damages are determined by ‘subtracting the
contract amount from the total cost of performance.’ ” (Amelco Electric v. City
of Thousand Oaks (2002) 27 Cal.4th 228, 243 [115 Cal.Rptr.2d 900, 38 P.3d
1120].)
• “Although not favored, the total cost method—along with its subcategory, the
modified total cost method—has been recognized in California as an appropriate
way of computing damages.” (JMR Construction Corp. v. Environmental
Assessment & Remediation Management, Inc. (2015) 243 Cal.App.4th 571, 589
[198 Cal.Rptr.3d 47].)
• “[T]o invoke the total cost method for recovering damages, a contractor must
establish ‘(1) the impracticality of proving actual losses directly; (2) [its] bid was
reasonable; (3) its actual costs were reasonable; and (4) it was not responsible
for the added costs.’ ” (JMR Construction Corp. supra, 243 Cal.App.4th at p.
589].)
• “If some of the contractor’s costs were unreasonable or caused by its own errors
or omissions, then those costs are subtracted from the damages to arrive at a
modified total cost. ‘If prima facie evidence under this test is established, the
trier of fact then applies the same test to determine the amount of total cost or
modified total cost damages to which the plaintiff is entitled.’ ” (Dillingham-Ray
Wilson v. City of Los Angeles (2010) 182 Cal.App.4th 1396, 1408 [106
Cal.Rptr.3d 691], internal citations omitted.)
• “ ‘The total cost method is not a substitute for proof of causation,’ and ‘should
be applied only to the smallest affected portion of the contractual relationship
that can be clearly identified.’ As the United States Court of Appeals for the
Federal Circuit has stated, ‘Clearly, the “actual cost method” is preferred because
it provides the court . . . with documented underlying expenses, ensuring that
the final amount of the equitable adjustment will be just that—equitable—and
not a windfall for either the government or the contractor.’ ” (Amelco Electric,
supra, 27 Cal.4th at p. 244, internal citations omitted.)
• “We conclude [plaintiff] failed to adduce substantial evidence to warrant
instructing the jury on the four-part total cost theory of damages. In particular,
[plaintiff] failed to adduce evidence to satisfy at least the fourth element of the
four-part test, i.e., that it was not responsible for the added expenses. A corollary
of this element of the test is that the contractor must demonstrate the defendant,
and not anyone else, is responsible for the additional cost.” (Amelco Electric,
supra, 27 Cal.4th at p. 245.)
• “[W]e do not determine whether total cost damages are ever appropriate in a
breach of public contract case . . . .” (Amelco Electric, supra, 27 Cal.4th at p.
242.)
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Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 939
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.108
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.72
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.02 (Matthew
Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.14
(Matthew Bender)
Miller & Starr California Real Estate 4th, § 31:70 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:93 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 19:39, 19:94–19.95 (Thomson
Reuters)
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4542. Contractor’s Damages for Abandoned Construction
Contract—Quantum Meruit Recovery
[Name of plaintiff] claims that the parties consistently disregarded the
contract’s change-order process and that the final project was
significantly different from the original project. If you find that the
parties abandoned the contract, [name of plaintiff] is entitled to recover
the reasonable value of all of [his/her/nonbinary pronoun/its] work on the
project rather than the contract price.
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner if
the contractor’s claim is that the parties effectively abandoned the contract and that
the contractor should therefore receive a quantum meruit measure of damages for
the reasonable value of its work. (See CACI No. 4523, Contractor’s Claim for
Additional Compensation—Abandonment of Contract.)
Contract abandonment cannot be alleged with regard to a public works contract.
(Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 238–239 [115
Cal.Rptr.2d 900, 38 P.3d 1120].)
For additional instructions on contract damages generally, see CACI No. 350 et seq.
in the Contracts series.
Sources and Authority
• “[O]nce the parties cease to follow the contract’s change order process, and the
final project is materially different from the project contracted for, the contract is
deemed inapplicable or abandoned and is set aside. The plaintiff may then
recover the reasonable costs for all of its work.” (Amelco Elec., supra, 27
Cal.4th at p. 238.)
• “The contractor was . . . entitled, under the factual circumstances of this case
[abandonment], to recover the reasonable value of the work it performed on a
quantum meruit basis, without being limited by the original contract amount.”
(C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d 628,
639 [218 Cal.Rptr. 592].)
• “In the specific context of construction contracts . . . , it has been held that
when an owner imposes upon the contractor an excessive number of changes
such that it can fairly be said that the scope of the work under the original
contract has been altered, an abandonment of contract properly may be found. In
these cases, the contractor, with the full approval and expectation of the owner,
may complete the project. Although the contract may be abandoned, the work is
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not.” (C. Norman Peterson Co., supra, 172 Cal.App.3d at p. 640, original italics,
internal citations omitted.)
• “There was a triable issue of fact as to whether these changes for which plaintiff
was seeking compensation were required. Moreover, because of the tremendous
number of changes, there was an issue as to whether the contract had been
abandoned by the parties and they proceeded apart from the contract. There was
evidence that the job was completely redesigned after the contract was entered
into.” (Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 156
[92 Cal.Rptr. 120].)
• “[A]bandonment requires a finding that both parties intended to disregard the
contract, and abandonment may be implied from the acts of the parties.” (C.
Norman Peterson Co., supra, 172 Cal.App.3d at p. 643, original italics.)
• “ ‘Once the plaintiff has established the amount which he has been induced to
expend, the defendant must show that the expenses of the party injured have
been extravagant and unnecessary for the purpose of carrying out the contract.’ ”
(C. Norman Peterson Co., supra, 172 Cal.App.3d at p. 647.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 1037, 1072
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.50
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.85–9.86
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.03 (Matthew
Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.12 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§ 104.224 (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.05
et seq.
Miller & Starr, California Real Estate 4th, § 27:87 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 1:48, 1:98, 7:72 (Thomson
Reuters)
Bruner & O’Connor on Construction Law, § 19:39 (Thomson Reuters)
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4543. Contractor’s Damages for Breach of Construction
Contract—Owner-Caused Delay or Acceleration
[Name of plaintiff] claims that [name of defendant] breached the parties’
contract by [delaying/accelerating] [name of plaintiff]’s work, causing
[name of plaintiff] harm. If you find that [name of defendant] [delayed/
accelerated] the work, you may award damages to [name of plaintiff] for
all harm caused by the [delay/acceleration], including the following:
1. Expenditures that [name of plaintiff] made for labor, services,
equipment, or materials that [he/she/nonbinary pronoun/it]
otherwise would not have made but for the [delay/acceleration];
2. Overhead that [name of plaintiff] otherwise would not have
incurred but for the [delay/acceleration]; and
3. Increase in the cost of labor, services, equipment, or materials
already required under the contract that resulted from the
[delay/acceleration].
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner for
economic loss incurred because the owner either delayed or demanded acceleration
of the work.
For additional instructions on contract damages generally, see CACI No. 350 et seq.
in the Contracts series, particularly CACI No. 351, Special Damages.
Sources and Authority
• Unreasonable Delay. Public Contract Code section 7102.
• “Delay damages are a common element recoverable by a party aggrieved by the
breach of a construction contract.” (JMR Construction Corp. v. Environmental
Assessment & Remediation Management, Inc. (2015) 243 Cal.App.4th 571, 585
[198 Cal.Rptr.3d 47].)
• “A subcontractor who is responsible for delaying the progress of a construction
project may be held liable for delay damages incurred by the general contractor
or by another subcontractor.” (JMR Construction Corp, supra, 243 Cal.App.4th
at p. 586.)
• “ ‘A building contractor whose performance is delayed by the owner may have
increased overhead and fixed costs resulting from a delay and may suffer labor
and material cost increases or loss of labor productivity due to delays for all of
which he or she would be entitled to damages.’ Extended home office overhead
is one type of delay damages for which a contractor may seek recovery.” (JMR
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Construction Corp, supra, 243 Cal.App.4th at p. 586, internal citation omitted.)
• “Overhead expense allocable to the period of delay is allowed to the extent the
evidence shows an increase in overhead because of the breach; or where other
jobs, but for the delay, would have been obtained to absorb such overhead.” (A.
A. Baxter Corp. v. Colt Industries, Inc. (1970) 10 Cal.App.3d 144, 158 [88
Cal.Rptr. 842], internal citations omitted.)
• “We conclude the trial court did not err in applying the Eichleay formula as a
legally permissible method of determining JMR’s home office overhead
damages. We base this conclusion upon the expert evidence presented at trial,
the general recoverability of extended home office overhead as an element of
delay damages, and the federal courts’ general acceptance of the Eichleay
formula.” (JMR Construction Corp, supra, 243 Cal.App.4th at p. 587.)
• “The federal courts have identified three Eichleay requirements. ‘[T]he contractor
[must] establish: (1) a government-caused delay; (2) that [the contractor] was on
“standby”; and (3) that [the contractor] was unable to take on other work.
[Citation.]’ ” (JMR Construction Corp, supra, 243 Cal.App.4th at p. 588.)
• “[A] contractor cannot recover on a claim for unabsorbed office overhead where
it is able to meet the original contract deadline or finish early despite a
government-caused delay. An exception applies where the contractor
demonstrates from the outset an intent to complete the work early, a capacity to
do so, and a likelihood of early completion but for the government’s delay.
Application of the three-prong test requirement . . . , however, is required only
where the contractor finishes the work by the original specified contract
completion date or earlier.” (Howard Contracting, Inc. v. G.A. MacDonald
Construction Co. (1998) 71 Cal.App.4th 38, 54–55, [83 Cal.Rptr.2d 590].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 1036
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, § 5.107
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, § 6.86
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.105–9.106
12 California Real Estate Law and Practice, Ch. 434, Government Contracts,
§ 434.90 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 481, Public Works, § 481.90
(Matthew Bender)
Miller & Starr California Real Estate 4th, §§ 31:76, 31:85 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 1:89–1:91 (Thomson
Reuters)
Acret, California Construction Law Manual (6th ed.) §§ 7:88–7:90 (Thomson
Reuters)
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Bruner & O’Connor on Construction Law, § 19:73 (Thomson Reuters)
Gibbs & Hunt, California Construction Law, Ch. 4, Breach of Contract by Owner,
§ 4.10 (Aspen Pub. 16th ed. 1999)
Kamine, Public Works Construction Manual, Ch. 19, Recovery of Delay Damages
When the Owner Prevents Early Completion (BNI Publications, Inc. 1996)
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4544. Contractor’s Damages for Breach of Construction
Contract—Inefficiency Because of Owner Conduct
[Name of plaintiff] claims that [name of defendant] breached the parties’
contract by [delaying/disrupting/ [or] interfering with] [name of
plaintiff]’s work, causing [name of plaintiff]’s work to be less efficient than
it would have been. If you find that [name of defendant]
[delayed/disrupted/ [or] interfered with] [name of plaintiff]’s work, you
may award damages to [name of plaintiff] for all harm caused by the
[delay/disruption/ [or] interference].
You may also award damages for lost profits that [name of plaintiff]
would have received from other jobs but for the [delay/disruption/ [or]
interference]. To recover damages for lost profits, [name of plaintiff] must
prove the following:
1. That it is reasonably certain that [name of plaintiff] would have
earned those profits but for [name of defendant]’s
[delay/disruption/ [or] interference]; and
2. That it was [actually foreseen/reasonably foreseeable] at the time
the parties entered into the contract that [name of plaintiff] would
have earned those profits.
The amount of lost profits must be proved to a reasonable certainty.
Damages for lost profits that are speculative or remote cannot be
recovered.
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner for
economic loss incurred because the owner delayed, disrupted, or interfered with the
contractor’s work in a way that caused the contractor calculable economic loss.
Lost profits from other work that the contractor could have earned but for the
owner’s breach are special damages, which must have been either actually foreseen
or reasonably foreseeable to the parties at the time when the contract was entered
into. (Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist.
(2004) 34 Cal.4th 960, 977 [22 Cal.Rptr.3d 340, 102 P.3d 257].) In element 2, select
either “actually foreseen” or “reasonably foreseeable” depending on what was
communicated when the contract was signed.
For additional instructions on contract damages generally, see CACI No. 350 et seq.
in the Contracts series. See particularly CACI No. 351, Special Damages.
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Sources and Authority
• “Lost anticipated profits cannot be recovered if it is uncertain whether any profit
would have been derived at all from the proposed undertaking. But lost
prospective net profits may be recovered if the evidence shows, with reasonable
certainty, both their occurrence and extent. It is enough to demonstrate a
reasonable probability that profits would have been earned except for the
defendant’s conduct. The plaintiff has the burden to produce the best evidence
available in the circumstances to attempt to establish a claim for loss of profits.”
(S. C. Anderson v. Bank of America (1994) 24 Cal.App.4th 529, 536 [30
Cal.Rptr.2d 286], internal citations omitted.)
• “Unearned profits can sometimes be used as the measure of general damages for
breach of contract. Damages measured by lost profits have been upheld for
breach of a construction contract when the breaching party’s conduct prevented
the other side from undertaking performance. The profits involved in [the cases
cited], however, were purely profits unearned on the very contract that was
breached.” (Lewis Jorge Construction Management, Inc., supra, 34 Cal.4th at p.
971, internal citations omitted.)
• “Lost profits, if recoverable, are more commonly special rather than general
damages, and subject to various limitations. Not only must such damages be
pled with particularity, but they must also be proven to be certain both as to
their occurrence and their extent, albeit not with ‘mathematical precision.’ ‘When
the contractor’s claim is extended to profits allegedly lost on other jobs because
of the defendant’s breach’ that ‘claim is clearly a claim for special damages.’ ”
(Lewis Jorge Construction Management, Inc., supra, 34 Cal.4th at p. 975,
original italics, internal citations omitted.)
• “It is indisputable that the [defendant]’s termination of the school construction
contract was the first event in a series of misfortunes that culminated in
[plaintiff]’s closing down its construction business. Such disastrous
consequences, however, are not the natural and necessary result of the breach of
every construction contract involving bonding. Therefore, . . . lost profits are not
general damages here. Nor were they actually foreseen or foreseeable as
reasonably probable to result from the [defendant]’s breach. Thus, they are not
special damages in this case.” (Lewis Jorge Construction Management, Inc.,
supra, 34 Cal.4th at p. 977.)
• “As to the reasonableness of the assumptions underlying the experts’ lost profit
analysis, criticisms of an expert’s method of calculation is a matter for the jury’s
consideration in weighing that evidence. ‘It is for the trier of fact to accept or
reject this evidence, and this evidence not being inherently improbable provides
a substantial basis for the trial court’s award of lost profits . . . .’ ” (Arntz
Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464,
489–490 [54 Cal.Rptr.2d 888], internal citations omitted.)
• “Overhead expense allocable to the period of delay is allowed to the extent the
evidence shows an increase in overhead because of the breach; or where other
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jobs, but for the delay, would have been obtained to absorb such overhead.” (A.
A Baxter Corp. v. Colt Industries, Inc. (1970) 10 Cal.App.3d 144, 158 [88
Cal.Rptr. 842], internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 907
3 Stein, Construction Law, Ch. 11, Remedies and Damages, ¶ 11.02 (Matthew
Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.79
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.21 (Matthew
Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04
Acret, California Construction Law Manual (6th ed.) § 1:82 (Thomson Reuters)
Bruner & O’Connor on Construction Law, §§ 19:87–19:90 (Thomson Reuters)
4545–4549. Reserved for Future Use
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4550. Affirmative Defense—Statute of Limitations—Patent
Construction Defect (Code Civ. Proc., § 337.1)
[Name of plaintiff] claims that [his/her/nonbinary pronoun] harm was
caused by a defect in the
[design/specifications/surveying/planning/supervision/ [or] observation] of
[a construction project/a survey of real property/[specify project, e.g., the
roof replacement]]. [Name of defendant] contends that [name of plaintiff]’s
lawsuit was not filed within the time set by law. To succeed on this
defense, [name of defendant] must prove both of the following:
1. That an average person during the course of a reasonable
inspection would have discovered the defect; and
2. That the date on which the [construction project/survey of real
property/[specify project, e.g., roof replacement]] was substantially
complete was more than four years before [insert date], the date
on which this action was filed.
New December 2011; Revised November 2018
Directions for Use
Give this instruction if the defendant asserts the running of the statute of limitations
in Code of Civil Procedure section 337.1 as a defense. This section provides a four-
year limitation period from the date of substantial completion for harm caused by a
patent construction defect. Do not give this instruction if the claim is for injuries to
persons or property based on tort principles occurring in the fourth year after
substantial completion. (See Code Civ. Proc., § 337.1(b).)
For discussion of substantial completion, see the Directions for Use to CACI No.
4532, Owner’s Damages for Breach of Construction Contract—Liquidated Damages
Under Contract for Delay. See also CACI No. 4524, Contractor’s Claim for
Compensation Due Under Contract—Substantial Performance.
Code of Civil Procedure section 337.1 does not apply to construction defect claims
within the Right to Repair Act (Civ. Code, § 895 et seq.). (Civ. Code, § 941(d).) The
act applies to all claims for property damage or economic loss except for breach of
contract, fraud, personal injury, or violation of a statute. (Civ. Code, § 943(a); see
McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 249 [227 Cal.Rptr.3d
191, 408 P.3d 797]; see also Civ. Code, § 941 [statute of limitations under Right to
Repair Act].)
Sources and Authority
• Statute of Limitations for Patent Defects. Code of Civil Procedure section 337.1.
• “The statute of limitations in section 337.1 exists to ‘provide a final point of
termination, to protect some groups from extended liability.’ ” (Delon Hampton
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& Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 254
[173 Cal.Rptr.3d 407].)
• “[A] patent defect is one that can be discovered by the kind of inspection made
in the exercise of ordinary care and prudence. In contrast, a latent defect is
hidden, and would not be discovered by a reasonably careful inspection.” (The
Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 35
[108 Cal.Rptr.3d 606].)
• “The test to determine whether a construction defect is patent is an objective test
that asks ‘whether the average consumer, during the course of a reasonable
inspection, would discover the defect. The test assumes that an inspection takes
place.’ This test generally presents a question of fact, unless the defect is
obvious in the context of common experience; then a determination of patent
defect may be made as a matter of law (including on summary judgment).”
(Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177
Cal.App.4th 251, 256 [99 Cal.Rptr.3d 258], internal citations omitted.)
• “[T]he [Right to Repair Act] leaves the common law undisturbed in some areas,
expressly preserving actions for breach of contract, fraud, and personal injury. In
other areas, however, the Legislature’s intent to reshape the rules governing
construction defect actions is patent. Where common law principles had
foreclosed recovery for defects in the absence of property damage or personal
injury the Act supplies a new statutory cause of action for purely economic loss.
And, of direct relevance here, even in some areas where the common law had
supplied a remedy for construction defects resulting in property damage but not
personal injury, the text and legislative history reflect a clear and unequivocal
intent to supplant common law negligence and strict product liability actions
with a statutory claim under the Act.” (McMillin Albany LLC, supra, 4 Cal.5th at
p. 249, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1303
4 Witkin, California Procedure (5th ed. 2008) Actions, § 484
12 California Real Estate Law and Practice, Ch. 441, Consumer’s Remedies,
§ 441.08 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.54, 104.267 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.248
(Matthew Bender)
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4551. Affirmative Defense—Statute of Limitations—Latent
Construction Defect (Code Civ. Proc., § 337.15)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that the date on which the [construction project/
survey of real property/[specify project, e.g., roof replacement]] was
substantially complete was more than 10 years before [insert date], the
date on which this action was filed.
New December 2011; Revised November 2018
Directions for Use
Give this instruction if the defendant asserts the running of the statute of limitations
in Code of Civil Procedure section 337.15 as a defense. This section provides a 10-
year outside limitation period for harm caused by a latent construction defect
regardless of delayed discovery.
The jury may also be instructed on the limitations periods for the particular theories
of recovery alleged. (See, e.g., Code Civ. Proc., §§ 338 [three years for injury to
real property], 337 [four years for breach of written contract].) However, for latent
defects, delayed discovery (see CACI No. 455, Statute of Limitations—Delayed
Discovery) generally defeats that otherwise applicable statute.
The most likely question of fact for the jury is the date of substantial completion.
The statute provides four possible events, the earliest of which may constitute
substantial completion of an improvement. (See Code Civ. Proc., § 337.15(g).) The
latest date is one year from cessation of all work on the improvement. However,
substantial completion of an improvement may occur before any of these dates. (See
Nelson v. Gorian & Assocs. (1998) 61 Cal.App.4th 93, 97 [71 Cal.Rptr.2d 345].)
The statute of limitations may start to run at a later date against the developer if the
development includes many improvements. (Id. at p. 99; cf. Schwetz v. Minnerly
(1990) 220 Cal.App.3d 296, 298 [269 Cal.Rptr. 417] [“developer” can be an
“improver” and a “development” is a “work of improvement” for purposes of
subsection (g)].) For further discussion of substantial completion, see the Directions
for Use to CACI No. 4532, Owner’s Damages for Breach of Construction
Contract—Liquidated Damages Under Contract for Delay. See also CACI No.
4524, Contractor’s Claim for Compensation Due Under Contract—Substantial
Performance.
Code of Civil Procedure section 337.15 does not apply to construction defect claims
within the Right to Repair Act (Civ. Code, § 895 et seq.). (Civ. Code, § 941(d).) The
act applies to all claims for property damage or economic loss except for breach of
contract, fraud, personal injury, or violation of a statute. (Civ. Code, § 943(a); see
McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 249 [227 Cal.Rptr.3d
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191, 408 P.3d 797]; see also Civ. Code, § 941 [statute of limitations under Right to
Repair Act].)
Sources and Authority
• Statute of Limitations: Latent Defects. Code of Civil Procedure section 337.15.
• “The purpose of section 337.15 has been stated as ‘to protect developers of real
estate against liability extending indefinitely into the future.’ . . . [We have]
noted that ‘[a] contractor is in the business of constructing improvements and
must devote his capital to that end; the need to provide reserves against an
uncertain liability extending indefinitely into the future could seriously impinge
upon the conduct of his enterprise.’ ” (Martinez v. Traubner (1982) 32 Cal.3d
755, 760 [187 Cal.Rptr. 251, 653 P.2d 1046], internal citations omitted.)
• “A ‘latent’ construction defect is one that is ‘not apparent by reasonable
inspection.’ As to a latent defect that is alleged in the context of the challenged
causes of action here—negligence, breach of warranty, and breach of
contract—three statutes of limitations are in play: sections 338, 337 and 337.15.
‘The interplay between these [three] statutes sets up a two-step process: (1)
actions for a latent defect must be filed within three years (§ 338 [injury to real
property]) or four years (§ 337 [breach of written contract]) of discovery, but (2)
in any event must be filed within ten years (§ 337.15) of substantial
completion.’ ”(Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc.
(2009) 177 Cal.App.4th 251, 257–258 [99 Cal.Rptr.3d 258], internal citations
omitted.)
• “The test to determine whether a construction defect is patent is an objective test
that asks ‘whether the average consumer, during the course of a reasonable
inspection, would discover the defect. The test assumes that an inspection takes
place.’ This test generally presents a question of fact, unless the defect is
obvious in the context of common experience; then a determination of patent
defect may be made as a matter of law (including on summary judgment).”
(Creekridge Townhome Owners Assn., Inc., supra, 177 Cal.App.4th at p. 256,
internal citations omitted.)
• “Our reading of the express words of section 337.15, our giving consideration to
its legislative history, and harmonizing that section in the context of the statutory
framework as a whole, leads us to conclude that section 337.15 does not limit
the time within which direct actions for personal injury damages or wrongful
death may be brought against the persons specified in the statute.” (Martinez,
supra, 32 Cal.3d at p. 759.)
• “The 10-year period commences to run in respect to a person who has
contributed towards ‘an improvement’ when such improvement has been
substantially completed irrespective of whether or not the improvement is part of
a development.” (Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762,
772 [167 Cal.Rptr. 440].)
• “In 1981, the Legislature codified the holding in Liptak by adding subdivision
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(g) to section 337.15. ‘The Senate Committee on Judiciary and the Senate
Republican Caucus digests for the bill that became Code of Civil Procedure
section 337.15, subdivision (g) state in pertinent part: “ ‘In [Liptak], the [C]ourt
of [A]ppeal held that with respect to a developer, the ten-year limitation period
does not commence until the development is substantially completed. [¶] With
respect to a person who has contributed to an improvement on the developed
property, the court held that the period commences when that particular
improvement has been substantially completed, regardless of the completion time
of the development itself. [¶] AB 605 would codify the Liptak holding on these
issues.’ ” [Citation.]’ ” (Nelson, supra, 61 Cal.App.4th at pp. 96–97, internal
citations omitted.)
• “Turning to the plain meaning of the statute as well as the legislative intent of
enactment of section 337.15, subdivision (g), it is clear the intent was to define
what event triggered the 10-year period and not what label is used to define the
person who performed the work of improvement. The particular development or
work of improvement can be one ‘improvement’ such as grading. It can also be
a ‘particular development,’ i.e., a completed structure or dwelling. When the
work of improvement meets one of the four criteria of section 337.15,
subdivision (g), the ‘improver’—whether an architect, engineer, subcontractor,
contractor, or developer—is entitled to raise the provisions of section 337.15,
subdivision (g), as a bar to an action which seeks damages for latent defects
after the 10-year period has passed.” (Schwetz, supra, 220 Cal.App.3d at p. 308.)
• “Appellants claim that the 10-year period is calculated pursuant to section
337.15, subdivision (g)(1)–(4), which describes four events: (1) a final
inspection, (2) the notice of completion, (3) use or occupancy of the property, or
(4) termination or cessation of work for one year. Subdivision (g), however,
states that the 10-year period ‘shall commence upon substantial completion of
the improvement, but not later than’ the occurrence of any one of the four events
described in subdivision (g)(1) through (g)(4). . . . [¶] The trial court correctly
ruled that the notice of completion date (§ 337.15, subd. (g)(2)) did not control if
the improvement was substantially completed at an earlier date.” (Nelson, supra,
61 Cal.App.4th at p. 97, original italics.)
• “ ‘As used in section 337.15 “an improvement” is in the singular and refers
separately to each of the individual changes or additions to real property that
qualifies as an “improvement” irrespective of whether the change or addition is
grading and filling, putting in curbs and streets, laying storm drains or of other
nature.’ ” (Nelson, supra, 61 Cal.App.4th at p. 97.)
• “The purpose of section 337.15 and its definition of the ‘substantial completion’
that begins the running of the 10-year period make clear that the statute’s
protection applies to claims for damage due to defects in how an improvement
was designed and constructed, not to claims based on how the improvement was
used after its construction is complete and independent of the manner in which it
was designed and constructed.” (Estuary Owners Assn. v. Shell Oil Co. (2017)
13 Cal.App.5th 899, 915 [221 Cal.Rptr.3d 190], original italics.)
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• “[T]he [Right to Repair Act] leaves the common law undisturbed in some areas,
expressly preserving actions for breach of contract, fraud, and personal injury. In
other areas, however, the Legislature’s intent to reshape the rules governing
construction defect actions is patent. Where common law principles had
foreclosed recovery for defects in the absence of property damage or personal
injury the Act supplies a new statutory cause of action for purely economic loss.
And, of direct relevance here, even in some areas where the common law had
supplied a remedy for construction defects resulting in property damage but not
personal injury, the text and legislative history reflect a clear and unequivocal
intent to supplant common law negligence and strict product liability actions
with a statutory claim under the Act.” (McMillin Albany LLC, supra, 4 Cal.5th at
p. 249, internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Actions, §§ 488, 608–616
12 California Real Estate Law and Practice, Ch. 441, Consumer’s Remedies,
§ 441.08A (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.25[4], 104.267 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.49
(Matthew Bender)
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4552. Affirmative Defense—Work Completed and
Accepted—Patent Defect
[Name of plaintiff] claims that [his/her/nonbinary pronoun] harm was
caused by a defect in the
[design/specifications/surveying/planning/supervision/ [or] observation] of
[a construction project/a survey of real property/[specify project, e.g., the
roof replacement]]. [Name of defendant] contends that [he/she/nonbinary
pronoun/it] is not responsible for the defect because the project was
completed and the work was accepted by [name of owner]. To succeed on
this defense, [name of defendant] must prove all of the following:
1. That [name of defendant] completed all of [his/her/nonbinary
pronoun/its] work on the project;
2. That [name of owner] accepted [name of defendant]’s work; and
3. That an average person during the course of a reasonable
inspection would have discovered the defect.
New December 2013
Directions for Use
Give this instruction to present the affirmative defense of “completed and accepted.”
Under this defense a party under contract for a construction project is not liable in
negligence for injury caused by a patent construction defect once the project has
been completed and the owner has accepted the project. See also CACI No. 4550,
Affırmative Defense—Statute of Limitations—Patent Construction Defect.
The defense applies if the work on the project component that caused the injury has
been completed and accepted, even if the contractor continues to work on other
components of the project. (See Jones v. P.S. Development Co., Inc. (2008) 166
Cal.App.4th 707, 717 [82 Cal.Rptr.3d 882], disapproved on other grounds in Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 113 Cal.Rptr.3d 327, 235 P.3d 988].) Modify
element 1 if necessary to reflect this situation.
Sources and Authority
• “ ‘[W]hen a contractor completes work that is accepted by the owner, the
contractor is not liable to third parties injured as a result of the condition of the
work, even if the contractor was negligent in performing the contract, unless the
defect in the work was latent or concealed. [Citation.] The rationale for this
doctrine is that an owner has a duty to inspect the work and ascertain its safety,
and thus the owner’s acceptance of the work shifts liability for its safety to the
owner, provided that a reasonable inspection would disclose the defect.
[Citation.]’ Stated another way, ‘when the owner has accepted a structure from
the contractor, the owner’s failure to attempt to remedy an obviously dangerous
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defect is an intervening cause for which the contractor is not liable.’ The
doctrine applies to patent defects, but not latent defects. ‘If an owner, fulfilling
the duty of inspection, cannot discover the defect, then the owner cannot
effectively represent to the world that the construction is sufficient; he lacks
adequate information to do so.’ ” (Neiman v. Leo A. Daly Co. (2012) 210
Cal.App.4th 962, 969 [148 Cal.Rptr.3d 818], footnote and internal citations
omitted.)
• “ ‘Parties for whom work contracted for is undertaken, must see to it before
acceptance, that the work, as to strength and durability, and all other particulars
necessary to the safety of the property and persons of third parties, is subjected
to proper tests, and that it is sufficient. By acceptance and subsequent use, the
owners assume to the world the responsibility of its sufficiency, and to third
parties, the liability of the contractors has ceased, and their own commenced.’ In
other words, having a duty to inspect the work and ascertain its safety before
accepting it, the owner’s acceptance represents it to be safe and the owner
becomes liable for its safety.” (Sanchez v. Swinerton & Walberg Co. (1996) 47
Cal.App.4th 1461, 1466 [55 Cal.Rptr.2d 415], internal citation omitted.)
• “The fact the project did not comply with the plans and specifications or
[defendant] may not have fulfilled all of its duties to [owner] under the
agreement, does not mean the project was not completed.” (Neiman, supra, 210
Cal.App.4th at p. 970.)
• “As there is no evidence that respondents retained control over the machine [that
caused injury], we conclude that they are not liable for [plaintiff]’s injuries.”
(Jones, supra, 166 Cal.App.4th at p. 718.)
• “[A] patent defect is one that can be discovered by the kind of inspection made
in the exercise of ordinary care and prudence. In contrast, a latent defect is
hidden, and would not be discovered by a reasonably careful inspection.” (The
Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 35
[108 Cal.Rptr.3d 606].)
• “The test to determine whether a construction defect is patent is an objective test
that asks ‘whether the average consumer, during the course of a reasonable
inspection, would discover the defect. The test assumes that an inspection takes
place.’ This test generally presents a question of fact, unless the defect is
obvious in the context of common experience; then a determination of patent
defect may be made as a matter of law (including on summary judgment).”
(Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177
Cal.App.4th 251, 256 [99 Cal.Rptr.3d 258], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 227
3 Witkin, California Procedure (5th ed. 2008) Actions, § 606
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.01 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.41
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(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.94 (Matthew
Bender)
4553–4559. Reserved for Future Use
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4560. Recovery of Payments to Unlicensed Contractor—Essential
Factual Elements (Bus. & Prof. Code, § 7031(b))
[Name of plaintiff] claims that [name of defendant] did not have a valid
contractor’s license during all times when [name of defendant] was
[performing services/supervising construction] for [name of plaintiff]. To
establish this claim and recover all compensation paid for these services,
[name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [[engaged/hired]/ [or] contracted with]
[name of defendant] to perform services for [name of plaintiff];
2. That a valid contractor’s license was required to perform these
services; and
3. That [name of plaintiff] paid [name of defendant] for services that
[name of defendant] performed.
[[Name of plaintiff] is not entitled to recover all compensation paid if
[name of defendant] proves that at all times while
[performing/supervising] these services, [he/she/nonbinary pronoun/it] had
a valid contractor’s license as required by law.]
New June 2016; Revised November 2020, May 2021
Directions for Use
Give this instruction in a case in which the plaintiff seeks to recover money paid to
an unlicensed contractor for service performed for which a license is required. (Bus.
& Prof. Code, § 7031(b).) Modify the instruction if the plaintiff claims the defendant
did not perform services or supervise construction, but instead agreed to be solely
responsible for completion of construction services. (See Vallejo Development Co. v.
Beck Development Co. (1994) 24 Cal.App.4th 929, 940 [29 Cal.Rptr.2d 669].) For a
case brought by a licensed contractor or an allegedly unlicensed contractor for
payment for services performed, give CACI No. 4562, Payment for Construction
Services Rendered—Essential Factual Elements. (See Bus. & Prof. Code, § 7031(a),
(e).)
The burden of proof to establish licensure or proper licensure is on the licensee.
Proof must be made by producing a verified certificate of licensure from the
Contractors State License Board. When licensure or proper licensure is controverted,
the burden of proof to establish licensure or proper licensure is on the contractor.
(Bus. & Prof. Code, § 7031(d).) Omit the final bracketed paragraph if the issue of
licensure is not contested.
A corporation qualifies for a contractor’s license through a responsible managing
officer (RMO) or responsible managing employee (RME) who is qualified for the
same license classification as the classification being applied for. (Bus. & Prof.
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Code, § 7068(b)(3).) The plaintiff may attack a contractor’s license by going behind
the face of the license and proving that a required RMO or RME is a sham. The
burden of proof remains with the contractor to prove a bona fide RMO or RME.
(Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 385−387 [70
Cal.Rptr.2d 427].) Whether an RMO or RME is a sham can be a question of fact.
(Jeff Tracy, Inc. v. City of Pico Rivera (2015) 240 Cal.App.4th 510, 518 [192
Cal.Rptr.3d 600].)
Sources and Authority
• Action to Recover Compensation Paid to Unlicensed Contractor. Business and
Professions Code section 7031(b).
• Proof of Licensure. Business and Professions Code section 7031(d).
• “Contractor” Defined. Business and Professions Code section 7026.
• “The purpose of the licensing law is to protect the public from incompetence
and dishonesty in those who provide building and construction services. The
licensing requirements provide minimal assurance that all persons offering such
services in California have the requisite skill and character, understand
applicable local laws and codes, and know the rudiments of administering a
contracting business.” (Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52
Cal.3d 988, 995 [277 Cal.Rptr. 517, 803 P.2d 370], internal citations omitted.)
• “Because of the strength and clarity of this policy, it is well settled that section
7031 applies despite injustice to the unlicensed contractor. ‘Section 7031
represents a legislative determination that the importance of deterring unlicensed
persons from engaging in the contracting business outweighs any harshness
between the parties, and that such deterrence can best be realized by denying
violators the right to maintain any action for compensation in the courts of this
state. [Citation.] . . .’ ” (Hydrotech Systems, Ltd., supra, 52 Cal.3d at p. 995,
original italics.)
• “The current legislative requirement that a contractor plaintiff must, in addition
to proving the traditional elements of a contract claim, also prove that it was
duly licensed at all times during the performance of the contract does not change
this historical right to a jury trial.” (Jeff Tracy, Inc., supra, 240 Cal.App.4th at p.
518, fn. 2.)
• “[T]he courts may not resort to equitable considerations in defiance of section
7031.” (Lewis & Queen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 152 [308 P.2d
713].)
• “In 2001, the Legislature complemented the shield created by subdivision (a) of
section 7031 by adding a sword that allows persons who utilize unlicensed
contractors to recover compensation paid to the contractor for performing
unlicensed work. Section 7031(b) provides that ‘a person who utilizes the
services of an unlicensed contractor may bring an action in any court of
competent jurisdiction in this state to recover all compensation paid to the
unlicensed contractor for performance of any act or contract’ unless the
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substantial compliance doctrine applies.” (White v. Cridlebaugh (2009) 178
Cal.App.4th 506, 519 [100 Cal.Rptr.3d 434], internal citation omitted.)
• “It appears section 7031(b) was designed to treat persons who have utilized
unlicensed contractors consistently, regardless of whether they have paid the
contractor for the unlicensed work. In short, those who have not paid are
protected from being sued for payment and those who have paid may recover all
compensation delivered. Thus, unlicensed contractors are not able to avoid the
full measure of the CSLL’s civil penalties by (1) requiring prepayment before
undertaking the next increment of unlicensed work or (2) retaining progress
payments relating to completed phases of the construction.” (White, supra, 178
Cal.App.4th at p. 520.)
• “In most cases, a contractor can establish valid licensure by simply producing ‘a
verified certificate of licensure from the Contractors’ State License Board which
establishes that the individual or entity bringing the action was duly licensed in
the proper classification of contractors at all times during the performance of any
act or contract covered by the action.’ [Contractor] concedes that if this was the
only evidence at issue, ‘then—perhaps—the issue could be decided by the court
without a jury.’ But as [contractor] points out, the City was challenging
[contractor]’s license by going behind the face of the license to prove that
[license holder] was a sham RME or RMO.” (Jeff Tracy, Inc., supra, 240
Cal.App.4th at p. 518.)
• “[T]he determination of whether [contractor] held a valid class A license
involved questions of fact. ‘[W]here there is a conflict in the evidence from
which either conclusion could be reached as to the status of the parties, the
question must be submitted to the jury. [Citations.] This rule is clearly applicable
to cases revolving around the disputed right of a party to bring suit under the
provisions of Business and Professions Code section 7031.’ ” (Jeff Tracy, Inc.,
supra, 240 Cal.App.4th at p. 518.)
• “We conclude the authorization of recovery of ‘all compensation paid to the
unlicensed contractor for performance of any act or contract’ means that
unlicensed contractors are required to return all compensation received without
reductions or offsets for the value of material or services provided.” (White,
supra, 178 Cal.App.4th at pp. 520−521, original italics, internal citation
omitted.)
• “[A]n unlicensed contractor is subject to forfeiture even if the other contracting
party was aware of the contractor’s lack of a license, and the other party’s bad
faith or unjust enrichment cannot be asserted by the contractor as a defense to
forfeiture.” (Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239
Cal.App.4th 882, 896 [191 Cal.Rptr.3d 714].)
• “Nothing in section 7031 either limits its application to a particular class of
homeowners or excludes protection of ‘sophisticated’ persons. Reading that
limitation into the statute would be inconsistent with its purpose of ‘ “deterring
unlicensed persons from engaging in the contracting business.” ’ ” (Phoenix
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Mechanical Pipeline, Inc. v. Space Exploration Technologies Corp. (2017) 12
Cal.App.5th 842, 849 [219 Cal.Rptr.3d 775].)
• “By entering into the agreements to ‘improve the Property’ and to be ‘solely
responsible for completion of infrastructure improvements—including graded
building pads, storm drains, sanitary systems, streets, sidewalks, curbs, gutters,
utilities, street lighting, and traffic signals—[the plaintiff] was clearly contracting
to provide construction services in exchange for cash payments by [the
defendants]. The mere execution of such a contract is an act ‘in the capacity of a
contractor,’ and an unlicensed person is barred by section 7031, subdivision (a),
from bringing claims based on the contract. [¶] . . . [¶] . . . Section 7026
plainly states that both the person who provides construction services himself
and one who does so ‘through others’ qualifies as a ‘contractor.’ The California
courts have also long held that those who enter into construction contracts must
be licensed, even when they themselves do not do the actual work under the
contract.” (Vallejo Development Co., supra, 24 Cal.App.4th at pp. 940–941,
original italics.)
• “[Contractor] has not alleged one contract, but rather a series of agreements for
each separate task that it was asked to perform. It may therefore seek
compensation under those alleged agreements that apply to tasks for which no
license was required.” (Phoenix Mechanical Pipeline, Inc., supra, 12 Cal.App.5th
at p. 853.)
• “Section 7031, subdivision (e) states an exception to the license requirement of
subdivision (a). Subdivision (e) provides in part: ‘[T]he court may determine that
there has been substantial compliance with licensure requirements under this
section if it is shown at an evidentiary hearing that the person who engaged in
the business or acted in the capacity of a contractor (1) had been duly licensed
as a contractor in this state prior to the performance of the act or contract, (2)
acted reasonably and in good faith to maintain proper licensure, and (3) acted
promptly and in good faith to remedy the failure to comply with the licensure
requirements upon learning of the failure.’ ” (C. W. Johnson & Sons, Inc. v.
Carpenter (2020) 53 Cal.App.5th 165, 169 [265 Cal.Rptr.3d 895].)
• “[I]t is clear that the disgorgement provided in section 7031(b) is a penalty. It
deprives the contractor of any compensation for labor and materials used in the
construction while allowing the plaintiff to retain the benefits of that
construction. And, because the plaintiff may bring a section 7031(b)
disgorgement action regardless of any fault in the construction by the unlicensed
contractor, it falls within the Supreme Court’s definition of a penalty: ‘a recovery
“ ‘without reference to the actual damage sustained.’ ” ’ Accordingly, we hold
that [Code Civ. Proc., §] 340, subdivision (a), the one-year statute of limitations,
applies to disgorgement claims brought under section 7031(b).” (Eisenberg
Village of Los Angeles Jewish Home for the Aging v. Suffolk Construction
Company, Inc. (2020) 53 Cal.App.5th 1201, 1212 [268 Cal.Rptr.3d 334], internal
citation and footnote omitted.)
• “[W]e hold that the discovery rule does not apply to section 7031(b) claims.
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Thus, the ordinary rule of accrual applies, i.e., the claim accrues ‘ “when the
cause of action is complete with all of its elements.” ’ In the case of a section
7031(b) claim, the cause of action is complete when an unlicensed contractor
completes or ceases performance of the act or contract at issue.” (Eisenberg
Village of Los Angeles Jewish Home for the Aging, supra, 53 Cal.App.5th at pp.
1214–1215, internal citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 491
12 California Real Estate Law and Practice, Ch. 430, Licensing of Contractors,
§ 430.70 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.83
(Matthew Bender)
5 California Points and Authorities, Ch. 50A, Contracts: Performance, Breach, and
Defenses, § 50A.52 et seq. (Matthew Bender)
29 California Legal Forms, Ch. 88, Licensing of Contractors, § 88.18 (Matthew
Bender)
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4561. Damages—All Payments Made to Unlicensed Contractor
A person who pays money to an unlicensed contractor may recover all
compensation paid to the unlicensed contractor.
If you decide that [name of plaintiff] has proved that [he/she/nonbinary
pronoun/it] paid money to [name of defendant] for services and that [name
of defendant] has failed to prove that [he/she/nonbinary pronoun/it] was
licensed at all times during performance, then [name of plaintiff] is
entitled to the return of all amounts paid, not just the amounts paid
while [name of defendant] was unlicensed. The fact that [name of plaintiff]
may have received some or all of the benefits of [name of defendant]’s
performance does not affect [his/her/nonbinary pronoun/its] right to the
return of all amounts paid.
New June 2016; Revised May 2021
Directions for Use
Give this instruction to clarify that the plaintiff is entitled to recover all
compensation paid to the unlicensed defendant regardless of any seeming injustice
to the contractor. (See Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d
988, 995 [277 Cal.Rptr. 517, 803 P.2d 370].)
Give CACI No. 4562, Payment for Construction Services Rendered—Essential
Factual Elements, if an allegedly unlicensed contractor brings a claim for payment
for services performed. (See Bus. & Prof. Code, § 7031(a), (e).)
Sources and Authority
• Recovery of All Compensation Paid to Unlicensed Contractor. Business and
Professions Code section 7031(b).
• “Because of the strength and clarity of this policy, it is well settled that section
7031 applies despite injustice to the unlicensed contractor. ‘Section 7031
represents a legislative determination that the importance of deterring unlicensed
persons from engaging in the contracting business outweighs any harshness
between the parties, and that such deterrence can best be realized by denying
violators the right to maintain any action for compensation in the courts of this
state. [Citation.] . . .’ ” (Hydrotech Systems, Ltd., supra, 52 Cal.3d at p. 995,
original italics.)
• “[T]he courts may not resort to equitable considerations in defiance of section
7031.” (Lewis & Queen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 152 [308 P.2d
713].)
• “[I]f a contractor is unlicensed for any period of time while delivering
construction services, the contractor forfeits all compensation for the work, not
merely compensation for the period when the contractor was unlicensed.”
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(Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239 Cal.App.4th
882, 896 [191 Cal.Rptr.3d 714].)
• “We conclude the authorization of recovery of ‘all compensation paid to the
unlicensed contractor for performance of any act or contract’ means that
unlicensed contractors are required to return all compensation received without
reductions or offsets for the value of material or services provided.” (White v.
Cridlebaugh (2009) 178 Cal.App.4th 506, 520−521 [100 Cal.Rptr.3d 434],
original italics, internal citation omitted.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 491
12 California Real Estate Law and Practice, Ch. 430, Licensing of Contractors,
§ 430.70 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.83
(Matthew Bender)
5 California Points and Authorities, Ch. 50A, Contracts: Performance, Breach, and
Defenses, § 50A.52 et seq. (Matthew Bender)
29 California Legal Forms, Ch. 88, Licensing of Contractors, § 88.18 (Matthew
Bender)
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4562. Payment for Construction Services Rendered—Essential
Factual Elements (Bus. & Prof. Code, § 7031(a), (e))
[Name of plaintiff] claims that [name of defendant] owes [name of plaintiff]
money for construction services rendered. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] [[engaged/hired]/ [or] contracted with]
[name of plaintiff] to [specify contractor services];
2. That [name of plaintiff] had at all times during the performance of
construction services a valid contractor’s license;
3. That [name of plaintiff] performed these services;
4. That [name of defendant] has not paid [name of plaintiff] for the
construction services that [name of plaintiff] provided; and
5. The amount of money [name of defendant] owes [name of plaintiff]
for the construction services provided.
New May 2021
Directions for Use
Give this instruction in a case in which the plaintiff-contractor seeks to recover
compensation owed for services performed for which a license is required. (Bus. &
Prof. Code, § 7031(a).)
For element 2, licensure requirements may be satisfied by substantial compliance
with the licensure requirements. (Bus. & Prof. Code, § 7031(e).) If the court has
determined the defendant’s substantial compliance, modify element 2 accordingly,
and instruct the jury that the court has made the determination.
When licensure or proper licensure is controverted, the burden of proof to establish
licensure or proper licensure is on the contractor. (Bus. & Prof. Code, § 7031(d).)
Proof must be made by producing a verified certificate of licensure from the
Contractors State License Board.
For a case involving recovery of payment for services provided by an allegedly
unlicensed contractor, give CACI No. 4560, Recovery of Payments to Unlicensed
Contractor—Essential Factual Elements.
Sources and Authority
• Proof of Licensure. Business and Professions Code section 7031(d).
• “Contractor” Defined. Business and Professions Code section 7026.
• “[Contractor] has not alleged one contract, but rather a series of agreements for
each separate task that it was asked to perform. It may therefore seek
compensation under those alleged agreements that apply to tasks for which no
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license was required.” (Phoenix Mechanical Pipeline, Inc. v. Space Exploration
Technologies Corp. (2017) 12 Cal.App.5th 842, 853 [219 Cal.Rptr.3d 775].)
• “Section 7031, subdivision (e) states an exception to the license requirement of
subdivision (a). Subdivision (e) provides in part: ‘[T]he court may determine that
there has been substantial compliance with licensure requirements under this
section if it is shown at an evidentiary hearing that the person who engaged in
the business or acted in the capacity of a contractor (1) had been duly licensed
as a contractor in this state prior to the performance of the act or contract, (2)
acted reasonably and in good faith to maintain proper licensure, and (3) acted
promptly and in good faith to remedy the failure to comply with the licensure
requirements upon learning of the failure.’ ” (C. W. Johnson & Sons, Inc. v.
Carpenter (2020) 53 Cal.App.5th 165, 169 [265 Cal.Rptr.3d 895].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 491
California Civil Practice: Real Property Litigation §§ 10:26–10:38 (Thomson
Reuters)
12 California Real Estate Law and Practice, Ch. 430, Licensing of Contractors,
§ 430.70 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.83
(Matthew Bender)
5 California Points and Authorities, Ch. 50A, Contracts: Performance, Breach, and
Defenses, § 50A.52 et seq. (Matthew Bender)
29 California Legal Forms, Ch. 88, Licensing of Contractors, § 88.18 (Matthew
Bender)
Miller & Starr, California Real Estate 4th §§ 32:68–32:84
4563–4569. Reserved for Future Use
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4570. Right to Repair Act—Construction Defects—Essential
Factual Elements (Civ. Code, § 896)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] has been
harmed because of defects in [name of defendant]’s original construction
of [name of plaintiff]’s home. To establish this claim, [name of plaintiff]
must prove [one or more of the following:]
[Specify all defects from Civil Code section 896, e.g., that a defectively
constructed door allowed unintended water to pass beyond, around, or
through it.]
New May 2019
Directions for Use
Give this instruction for a claim under the Right to Repair Act (the Act). (Civ. Code,
§ 895 et seq.) The Act applies to original construction intended to be sold as an
individual dwelling unit. (Civ. Code, § 896.) Section 896 lists all of the construction
standards covered by the Act. List all defects within the coverage of section 896.
In order to make a claim for violation of the Act, a homeowner need only show that
the home’s original construction does not meet the applicable standard. No further
showing of causation or damages is required to meet the burden of proof regarding
a violation of the Act. (Civ. Code, § 942; see also Civ. Code, § 936 [negligence or
breach of contract required in claim against general contractors, subcontractors,
material suppliers, individual product manufacturers, and design professionals].)
For an instruction on the limited damages recoverable under Civil Code, section
944, see CACI No. 4571, Right to Repair Act—Damages. For instructions on
various affirmative defenses available to the contractor under Civil Code section
945.5, see CACI Nos. 4572–4574.
Sources and Authority
• Definitions. Civil Code section 895.
• Construction Standards Under the Right to Repair Act. Civil Code section 896.
• Intent of Standards. Civil Code section 897.
• Applicability of Act to Other Entities Involved in Construction. Civil Code
section 936.
• Damages and Causation Not Required. Civil Code section 942.
• Exclusive Remedy for Certain Damages. Civil Code section 943.
• Damages Recoverable. Civil Code section 944.
• Affirmative Defenses. Civil Code section 945.5.
• “[T]he Right to Repair Act (the Act) was enacted in 2002. As recently explained
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by the Supreme Court, ‘[t]he Act sets forth detailed statewide standards that the
components of a dwelling must satisfy. It also establishes a prelitigation dispute
resolution process that affords builders notice of alleged construction defects and
the opportunity to cure such defects, while granting homeowners the right to sue
for deficiencies even in the absence of property damage or personal injury.’ ”
(Kohler Co. v. Superior Court (2018) 29 Cal.App.5th 55, 59 [240 Cal.Rptr.3d
426], internal citation omitted.)
• “To sum up this portion of the statutory scheme: For economic losses, the
Legislature intended to supersede Aas [Aas v. Superior Court (2000) 24 Cal.4th
627, 632] and provide a statutory basis for recovery. For personal injuries, the
Legislature preserved the status quo, retaining the common law as an avenue for
recovery. And for property damage, the Legislature replaced the common law
methods of recovery with the new statutory scheme. The Act, in effect, provides
that construction defect claims not involving personal injury will be treated the
same procedurally going forward whether or not the underlying defects gave rise
to any property damage.” (McMillin Albany LLC v. Superior Court (2018) 4
Cal.5th 241, 253 [227 Cal.Rptr.3d 191, 408 P.3d 797].)
• “[A] homeowner alleging that a manufactured product—such as a plumbing
fixture—installed in her home is defective may bring a claim under the Act only
if the allegedly defective product caused a violation of one of the standards set
forth in section 896; otherwise she must bring a common law claim outside of
the Act against the manufacturer, and would be limited to the damages allowed
under the common law.” (Kohler Co., supra, 29 Cal.App.5th at p. 63.)
• “Insofar as section 944 allows recovery only for damages resulting from failure
‘of the home,’ it is clear that ‘home’ is not limited to the structure where people
reside, because section 942 states that, ‘[i]n order to make a claim for violation
of the standards set forth in Chapter 2 (commencing with Section 896), a
homeowner need only demonstrate . . . that the home does not meet the
applicable standard . . . .’ As we have seen section 896 covers a multitude of
defects not only in the residence but also in improvements such as driveways,
landscaping, and damage to the lot, etc.” (Gillotti v. Stewart (2017) 11
Cal.App.5th 875, 897 [217 Cal.Rptr.3d 860], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1307
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43
(Matthew Bender)
19 California Points and Authorities, Ch. 66, Products Liability, § 190.224 (Matthew
Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.60 et seq. (Matthew Bender)
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4571. Right to Repair Act—Damages (Civ. Code, § 944)
If [name of plaintiff] proves any construction defects, [he/she/nonbinary
pronoun] is entitled to recover only for the following:
a. The reasonable value of repairing the defect(s);
b. The reasonable cost of repairing any damage caused by the
repair efforts;
c. The reasonable cost of repairing and correcting any damage
resulting from the failure of the home to meet the standards;
d. The reasonable cost of removing and replacing any improper
repair made by [name of defendant];
e. Reasonable relocation and storage expenses;
f. Lost business income if the home was used as a principal place of
a business licensed to be operated from the home;
g. Reasonable investigative costs for each defect proved;
h. (Specify any other costs or fees recoverable by contract or statute.)
[[Name of plaintiff]’s right to the reasonable value of repairing any defect
is limited to the lesser of the cost of repair or the diminution in current
value of the home caused by the defect.]
New May 2019
Directions for Use
This instruction sets forth the damages recoverable in an action for construction
defects under the Right to Repair Act. (Civ. Code, § 944.) Delete those that the
plaintiff is not claiming.
Give the optional last paragraph for any claims involving a detached single-family
home. The common-law personal use exception is preserved. (Civ. Code, § 943(b).)
Sources and Authority
• Damages Recoverable Under the Right to Repair Act. Civil Code section 944.
• “The provisions of chapter 5 make explicit the intended avenues for recouping
economic losses, property damages, and personal injury damages. Section 944
defines the universe of damages that are recoverable in an action under the Act.
(§ 944 [‘If a claim for damages is made under this title, the homeowner is only
entitled to damages for’ a series of specified types of losses].) In turn, section
943 makes an action under the Act the exclusive means of recovery for damages
identified in section 944 absent an express exception: ‘Except as provided in this
title, no other cause of action for a claim covered by this title or for damages
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recoverable under Section 944 is allowed.’ (§ 943, subd. (a).) In other words,
section 944 identifies what damages may be recovered in an action under the
Act, and section 943 establishes that such damages may only be recovered in an
action under the Act, absent an express exception.” (McMillin Albany LLC v.
Superior Court (2018) 4 Cal.5th 241, 251 [227 Cal.Rptr.3d 191, 408 P.3d 797].)
• “Insofar as section 944 allows recovery only for damages resulting from failure
‘of the home,’ it is clear that ‘home’ is not limited to the structure where people
reside, because section 942 states that, ‘[i]n order to make a claim for violation
of the standards set forth in Chapter 2 (commencing with Section 896), a
homeowner need only demonstrate . . . that the home does not meet the
applicable standard . . . .’ As we have seen section 896 covers a multitude of
defects not only in the residence but also in improvements such as driveways,
landscaping, and damage to the lot, etc.” (Gillotti v. Stewart (2017) 11
Cal.App.5th 875, 897 [217 Cal.Rptr.3d 860], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1312
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.69 (Matthew Bender)
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4572. Right to Repair Act—Affirmative Defense—Act of Nature
(Civ. Code, § 945.5(a))
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because it was caused by an
unforeseen event. To establish this defense, [name of defendant] must
prove that the [specify defect, e.g., door that allowed unintended water to
pass through it] was caused by [specify, e.g., a landslide], which was an
unforeseen [act of nature/manmade event] that caused the home not to
meet the otherwise required standard.
New May 2019
Directions for Use
This instruction sets forth a builder’s affirmative defense to a homeowner’s
construction defect claim under the Right to Repair Act, asserting the construction
defect was caused by an unforeseen act of nature. An “unforeseen act of nature”
includes unforeseen manmade events such as war, terrorism, or vandalism, in
addition to weather conditions and earthquakes. (See Civ. Code, § 945.5(a).)
The unforeseen event must be “in excess of the design criteria expressed by the
applicable building codes, regulations, and ordinances in effect at the time of
original construction.” (Civ. Code, § 945.5(a).) If there is a question of fact with
regard to such a situation, modify the instruction accordingly.
Sources and Authority
• Right to Repair Act Affirmative Defense of Unforeseen Act of Nature. Civil
Code section 945.5(a).
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1312
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43
(Matthew Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.70 (Matthew Bender)
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4573. Right to Repair Act—Affirmative Defense—Unreasonable
Failure to Minimize or Prevent Damage (Civ. Code, § 945.5(b))
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because [name of plaintiff]
unreasonably failed to minimize or prevent [his/her/nonbinary pronoun]
damages in a timely manner. To establish this defense, [name of
defendant] must prove [select one or more of the following:]
[a. [Name of plaintiff] failed to allow [name of defendant] reasonable
and timely access to the home for inspections and repairs.]
[b. [Name of plaintiff] failed to give [name of defendant] timely notice
after discovery of a construction defect.]
[c. [Specify other act or omission of plaintiff that is alleged to constitute
failure to minimize or prevent damage.]]
[Name of defendant] cannot avoid responsibility for damages due to an
untimely or inadequate response to [name of plaintiff]’s claim.
New May 2019
Directions for Use
This instruction sets forth a builder’s affirmative defense to a homeowner’s
construction defect claim under the Right to Repair Act, asserting the homeowner’s
failure to minimize or prevent damages. (See Civ. Code, § 945.5(b).) Select the
particular failure to mitigate alleged from a or b, or specify a different failure in c.
CACI No. 3931, Mitigation of Damages (Property Damage), may also be given for
the general principle of the plaintiff’s duty to mitigate damages.
Sources and Authority
• Right to Repair Act Affirmative Defense of Homeowner’s Failure to Mitigate.
Civil Code section 945.5(b).
• “Although the Act establishes various maximum time periods in which the
builder may respond, inspect, offer to repair, and commence repairs, the builder
avails itself of the full time allowed by the Act at its peril. The builder is liable
for the damages its construction defects cause, and even when a homeowner has
acted unreasonably in failing to limit losses, the builder remains liable for
‘damages due to the untimely or inadequate response of a builder to the
homeowner’s claim.’ (§ 945.5, subd. (b).) What constitutes a timely response will
vary according to the circumstances, and the maximum response periods set
forth by the Act do not necessarily insulate a builder from damages when the
builder has failed to take remedial action as promptly as is reasonable under the
circumstances. The Act’s liability provisions thus supply builders and
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homeowners clear incentives to move quickly to minimize damages when alerted
to emergencies.” (McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241,
257–258 [227 Cal.Rptr.3d 191, 408 P.3d 797].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1312
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43
(Matthew Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.70 (Matthew Bender)
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4574. Right to Repair Act—Affirmative Defense—Plaintiff’s
Subsequent Acts or Omissions (Civ. Code, § 945.5(d))
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because it was caused by [name
of plaintiff]’s later [acts/ [or] omissions]. To establish this defense [name of
defendant] must prove that the harm was caused by [[name of plaintiff]’s
later [alterations/ordinary wear and tear/misuse/abuse/[or] neglect]/ [or]
the structure’s use for something other than its intended purpose].
New May 2019; Revised May 2020
Directions for Use
This instruction sets forth a builder’s affirmative defense to a homeowner’s
construction defect claim under the Right to Repair Act, asserting that the harm was
caused by the homeowner’s alterations, ordinary wear and tear, misuse, abuse, or
neglect, or by the structure’s use for something other than its intended purpose. (Civ.
Code, § 945.5(d).)
The homeowner is responsible for any acts or omissions by any of the homeowner’s
agents or independent third parties. (Civ. Code, § 945.5(d).) Modify the instruction
as needed if the harm is alleged to have been caused by the subsequent acts of an
agent or third party.
Sources and Authority
• Right to Repair Act Affirmative Defense of Alterations, Ordinary Wear and Tear,
Misuse, Abuse, Neglect, or Use for Something Other Than Intended. Civil Code
section 945.5(d).
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1312
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.43
(Matthew Bender)
12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.70 (Matthew Bender)
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4575. Right to Repair Act—Affirmative Defense—Failure to Follow
Recommendations or to Maintain (Civ. Code, § 945.5(c))
[Name of defendant] claims that [he/she/nonbinary pronoun/it] is not
responsible for [name of plaintiff]’s harm because [name of plaintiff] failed
to properly maintain the home. To establish this defense, [name of
defendant] must prove [all/both] of the following:
1. That [name of plaintiff] failed to follow [[name of defendant]’s/ [or]
a manufacturer’s] recommendations/ [or] commonly accepted
homeowner maintenance obligations];
[2. That [name of plaintiff] had written notice of [name of defendant]’s
recommended maintenance schedules;
3. That the recommendations and schedules were reasonable at the
time they were issued;]
4. That [name of plaintiff]’s harm was caused by [his/her/nonbinary
pronoun] failure to follow [[name of defendant]’s/ [or] a
manufacturer’s] recommendations/ [or] commonly accepted
homeowner maintenance obligations].
New November 2019; Revised May 2020
Directions for Use
This instruction sets forth a builder’s affirmative defense to a homeowner’s
construction defect claim under the Right to Repair Act, asserting that the
homeowner failed to follow the builder’s or manufacturer’s recommendations, or
properly maintain the property. The homeowner is responsible for any maintenance
failures by any of the homeowner’s agents, employees, general contractors,
subcontractors, independent contractors, or consultants. (Civ. Code, § 945.5(c).)
Include elements 2 and 3 if the defendant contractor is relying on its own
recommended maintenance schedule.
Sources and Authority
• Right to Repair Act Affirmative Defense of Homeowner’s Failure to Maintain.
Civil Code section 945.5(c).
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1310 et seq.
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§§ 104.263–104.265 (Matthew Bender)
9 California Legal Forms Transaction Guide, Ch. 23, Real Property Sales
Agreements, § 23.20A (Matthew Bender)
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12 California Real Estate Law and Practice, Ch. 441, Consumers’ Remedies,
§ 441.70 (Matthew Bender)
Miller & Starr California Real Estate 4th, § 33:4 (Thomson Reuters)
4576–4599. Reserved for Future Use
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VF-4500. Owner’s Failure to Disclose Important Information
Regarding Construction Project
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] submit [his/her/nonbinary pronoun/its] bid
or agree to perform without information regarding [e.g., tidal
conditions] that materially affected performance costs?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] have this information?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of defendant] aware that [name of plaintiff] did not
know this information and had no reason to obtain it?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] fail to provide this information to [name
of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Did the contract plans and specifications or other information
furnished by [name of defendant] to [name of plaintiff] either
mislead [him/her/nonbinary pronoun/it] or fail to put [him/her/
nonbinary pronoun/it] on notice to investigate further?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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6. Was [name of plaintiff] harmed because of [name of defendant]’s
failure to disclose the information?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015
Directions for Use
This verdict form is based on CACI No. 4501, Owner’s Liability for Failing to
Disclose Important Information Regarding a Construction Project—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If different categories or items of damages are claimed, expand question 7 so that
the jury can state a separate amount for each category. (See CACI Nos. 4540–4544,
Contractor’s Damages.) In this way, should a reviewing court determine that a
particular item of damages is not recoverable, it can reduce the judgment by the
amount awarded for that item rather than have to send the case back for a retrial of
damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
VF-4501–VF-4509. Reserved for Future Use
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VF-4510. Breach of Implied Covenant to Perform Work in a Good
and Competent Manner—Affirmative Defense—Contractor
Followed Plans and Specifications
We answer the questions submitted to us as follows:
1. Did [name of defendant] fail to [specify alleged defect in the work
and/or deficiency in performance]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Was [name of plaintiff] harmed by [name of defendant]’s failure?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] provide [name of defendant] with the plans
and specifications for the project?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, skip questions 4, 5, and 6 and answer question 7.
4. Did [name of plaintiff] require [name of defendant] to follow the
plans and specifications in constructing the project?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, skip questions 5 and 6 and answer question 7.
5. Did [name of defendant] substantially comply with the plans and
specifications?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, skip question 6 and answer question 7.
6. Was [specify alleged defect in the work and/or deficiency in
performance] because of [name of defendant]’s use of the plans and
specifications?
6. Yes No
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6. If your answer to question 6 is yes, stop here, answer no further
questions, and have the presiding juror sign and date this form.
If you answered no, answer question 7.
7. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015
Directions for Use
This verdict form is based on CACI No. 4510, Breach of Implied Covenant to
Perform Work in a Good and Competent Manner—Essential Factual Elements, and
CACI No. 4511, Affırmative Defense—Contractor Followed Plans and
Specifications. Questions 3–6 address the affirmative defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If different categories or items of damages are claimed, expand question 7 so that
the jury can state a separate amount for each category. (See CACI Nos. 4530–4532,
Owner’s Damages.) In this way, should a reviewing court determine that a particular
item of damages is not recoverable, it can reduce the judgment by the amount
awarded for that item rather than have to send the case back for a retrial of
damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
VF-4511–VF-4519. Reserved for Future Use
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VF-4520. Contractor’s Claim for Changed or Extra Work—Owner’s
Response That Contract Procedures Not Followed—Contractor’s
Claim of Waiver
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] perform [changed/ [or] extra] work that
was [not included in/ [or] in addition to that required under] the
original contract?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] direct [name of plaintiff] to perform this
[changed/ [or] extra] work?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Was [name of plaintiff] harmed because [name of defendant]
required this [changed/ [or] extra] work?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of plaintiff] follow the change-order requirements
included in the parties’ contract?
4. Yes No
4. If your answer to question 4 is yes, skip question 5 and answer
question 6. If you answered no, then answer question 5.
5. Did [name of defendant] freely and knowingly give up [his/her/
nonbinary pronoun/its] right to require [name of plaintiff] to follow
the contract’s change-order requirements?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
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VF-4520 CONSTRUCTION LAW
6. What are [name of plaintiff]’s damages? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015
Directions for Use
This verdict form is based on CACI No. 4520, Contractor’s Claim for Changed or
Extra Work, CACI No. 4521, Owner’s Claim That Contract Procedures Regarding
Change Orders Were Not Followed, and CACI No. 4522, Waiver of Written
Approval or Notice Requirements for Changed or Additional Work. Question 4
addresses the owner’s claim that contract requirements were not followed; question
5 addresses the contractor’s response that the owner waived compliance. Waiver
may only be asserted in a private contract case. (See P&D Consultants, Inc. v. City
of Carlsbad (2010) 190 Cal.App.4th 1332, 1344 [119 Cal.Rptr.3d 253] [public
contract change-order requirements not subject to oral modification or modification
by conduct].)
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If different categories or items of damages are claimed, expand question 6 so that
the jury can state a separate amount for each category. (See CACI Nos. 4540–4544,
Contractor’s Damages.) In this way, should a reviewing court determine that a
particular item of damages is not recoverable, it can reduce the judgment by the
amount awarded for that item rather than have to send the case back for a retrial of
damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
VF-4521–VF-4599. Reserved for Future Use
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WHISTLEBLOWER PROTECTION
4600. False Claims Act: Whistleblower Protection—Essential Factual Elements
(Gov. Code, § 12653)
4601. Protected Disclosure by State Employee—California Whistleblower
Protection Act—Essential Factual Elements (Gov. Code, § 8547.8(c))
4602. Affirmative Defense—Same Decision (Gov. Code, § 8547.8(e))
4603. Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5)
4604. Affirmative Defense—Same Decision (Lab. Code, § 1102.6)
4605. Whistleblower Protection—Health or Safety Complaint—Essential Factual
Elements (Lab. Code, § 6310)
4606. Whistleblower Protection—Unsafe Patient Care and Conditions—Essential
Factual Elements (Health & Saf. Code, § 1278.5)
4607–4699. Reserved for Future Use
VF-4600. False Claims Act: Whistleblower Protection (Gov. Code, § 12653)
VF-4601. Protected Disclosure by State Employee—California Whistleblower
Protection Act—Affirmative Defense—Same Decision (Gov. Code,
§ 8547.8(c))
VF-4602. Whistleblower Protection—Affirmative Defense of Same Decision (Lab.
Code, §§ 1102.5, 1102.6)
VF-4603–VF-4699. Reserved for Future Use
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4600. False Claims Act: Whistleblower Protection—Essential
Factual Elements (Gov. Code, § 12653)
[Name of plaintiff] claims that [name of defendant] [discharged/specify
other adverse action] [him/her/nonbinary pronoun] because
[he/she/nonbinary pronoun] acted [in furtherance of a false claims action/
to stop a false claim by [name of false claimant]]. A false claims action is
a lawsuit against a person or entity that is alleged to have submitted a
false claim to a government agency for payment or approval. A false
claim is a claim for payment with the intent to defraud the government.
In order to establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] was an employee of [name of defendant];
2. That [name of false claimant] was alleged to have defrauded the
government of money, property, or services by submitting a false
or fraudulent claim to the government for payment or approval;
3. That [name of plaintiff] [specify acts done in furthering the false
claims action or to stop a false claim];
4. That [name of plaintiff] acted [in furtherance of a false claims
action/to stop a false claim];
5. That [name of defendant] [discharged/specify other adverse action]
[name of plaintiff];
6. That [name of plaintiff]’s acts [in furtherance of a false claims
action/to stop a false claim] were a substantial motivating reason
for [name of defendant]’s decision to [discharge/other adverse
action] [him/her/nonbinary pronoun];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[An act is “in furtherance of” a false claims action if
[[name of plaintiff] actually filed a false claims action [himself/herself/
nonbinary pronoun].]
[or]
[someone else filed a false claims action but [name of plaintiff]
[specify acts in support of action, e.g., gave a deposition in the action],
which resulted in the retaliatory acts.]
[or]
[no false claims action was ever actually filed, but [name of plaintiff]
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had reasonable suspicions of a false claim, and it was reasonably
possible for [name of plaintiff]’s conduct to lead to a false claims
action.]
The potential false claims action need not have turned out to be
meritorious. [Name of plaintiff] need only show a genuine and reasonable
concern that the government was being defrauded.]
New December 2012; Revoked June 2013; Restored and Revised December 2013;
Renumbered from CACI No. 2440 and Revised June 2015
Directions for Use
The whistleblower protection statute of the False Claims Act (Gov. Code, § 12653)
prohibits adverse employment actions against an employee who either (1) takes
steps in furtherance of a false claims action or (2) makes efforts to stop a false
claim violation. (See Gov. Code, § 12653(a).)
The second sentence of the opening paragraph defines a false claims action in its
most common form: a lawsuit against someone who has submitted a false claim for
payment. (See Gov. Code, § 12651(a)(1).) This sentence and element 2 may be
modified if a different prohibited act is involved. (See Gov. Code,
§ 12651(a)(2)–(8).)
In element 3, specify the steps that the plaintiff took that are alleged to have led to
the adverse action.
The statute reaches a broad range of adverse employment actions short of actual
discharge. (See Gov. Code, § 12653(a).) If the case involves an adverse employment
action other than termination, specify the action in elements 5 and 6. These
elements may also be modified to allege constructive discharge. See CACI No.
2509, “Adverse Employment Action” Explained, and CACI No. 2510, “Constructive
Discharge” Explained, for instructions under the Fair Employment and Housing Act
that may be adapted for use with this instruction.
Element 6 uses the term “substantial motivating reason” to express both intent and
causation between the employee’s actions and the discharge. “Substantial motivating
reason” has been held to be the appropriate standard under the Fair Employment
and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether the FEHA standard applies to cases under
the False Claims Act has not been addressed by the courts.
Give the last part of the instruction if the claim is that the plaintiff was discharged
for acting in furtherance of a false claims action.
Sources and Authority
• False Claims Act: Whistleblower Protection. Government Code section 12653.
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CACI No. 4600 WHISTLEBLOWER PROTECTION
• “The False Claims Act prohibits a ‘person’ from defrauding the government of
money, property, or services by submitting to the government a ‘false or
fraudulent claim’ for payment.” (Cordero-Sacks v. Housing Authority of City of
Los Angeles (2011) 200 Cal.App.4th 1267, 1273 [134 Cal.Rptr.3d 883].)
• “To establish a prima facie case, a plaintiff alleging retaliation under the CFCA
must show: ‘(1) that he or she engaged in activity protected under the statute;
(2) that the employer knew the plaintiff engaged in protected activity; and (3)
that the employer discriminated against the plaintiff because he or she engaged
in protected activity.’ ” (McVeigh v. Recology San Francisco (2013) 213
Cal.App.4th 443, 455 [152 Cal.Rptr.3d 595].)
• “ ‘As a statute obviously designed to prevent fraud on the public treasury,
[Government Code] section 12653 plainly should be given the broadest possible
construction consistent with that purpose.’ ” (McVeigh, supra, 213 Cal.App.4th at
p. 456.)
• “The False Claims Act bans retaliatory discharge in section 12653, which speaks
not of a ‘person’ being liable for defrauding the government, but of an
‘employer’ who retaliates against an employee who assists in the investigation or
pursuit of a false claim. Section 12653 has been ‘characterized as the
whistleblower protection provision of the [False Claims Act and] is construed
broadly.’ ” (Cordero-Sacks, supra, 200 Cal.App.4th at p. 1274.)
• “[T]he act’s retaliation provision applies not only to qui tam actions but to false
claims in general. Section 12653 makes it unlawful for an employer to retaliate
against an employee who is engaged ‘in furthering a false claims action,
including investigation for, initiation of, testimony for, or assistance in, an action
filed or to be filed under Section 12652.’ ” (Cordero-Sacks, supra, 200
Cal.App.4th at p. 1276.)
• “Generally, to constitute protected activity under the CFCA, the employee’s
conduct must be in furtherance of a false claims action. The employee does not
have to file a false claims action or show a false claim was actually made;
however, the employee must have reasonably based suspicions of a false claim
and it must be reasonably possible for the employee’s conduct to lead to a false
claims action.” (Kaye v. Board of Trustees of San Diego County Public Law
Library (2009) 179 Cal.App.4th 48, 60 [101 Cal.Rptr.3d 456], internal citation
omitted.)
• “We do not construe Kaye’s requirement that it be ‘reasonably possible for [the
employee’s conduct] to lead to a false claims action’ to mean that a plaintiff is
not protected under the CFCA unless he or she has discovered grounds for a
meritorious false claim action. . . . [T]he plaintiff need only show a genuine and
reasonable concern that the government was possibly being defrauded in order to
establish that he or she engaged in protected conduct. Any more limiting
construction or significant burden would deny whistleblowers the broad
protection the CFCA was intended to provide.” (McVeigh, supra, 213
Cal.App.4th at pp. 457–458, original italics.)
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• “Qui tam claims based on certain categories of publicly disclosed information
are barred unless the plaintiff is an original source of the information. This
prohibition, known as the public disclosure bar, is intended to prevent
‘ “parasitic or opportunistic actions by persons simply taking advantage of public
information without contributing to or assisting in the exposure of the fraud.” ’
In light of CFCA’s purpose of protecting the public fisc, ‘the public disclosure
bar should be applied only as necessary to preclude parasitic or opportunistic
actions, but not so broadly as to undermine the Legislature’s intent that relators
assist in the prevention, identification, investigation, and prosecution of false
claims.’ ” (State ex rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1407
[197 Cal.Rptr.3d 673], footnote and internal citations omitted.)
• “There is a dearth of California authority discussing what constitutes protected
activity under the CFCA. However, because the CFCA is patterned on a similar
federal statute (31 U.S.C. § 3729 et seq.), we may rely on cases interpreting the
federal statute for guidance in interpreting the CFCA. (Kaye, supra, 179
Cal.App.4th at pp. 59–60.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 306, 307
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 883, 884
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 468, Public Entities and Offıcers:
False Claims Actions, § 468.25 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Public Entities and Offıcers: False
Claims Actions, § 100.61 (Matthew Bender)
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4601. Protected Disclosure by State Employee—California
Whistleblower Protection Act—Essential Factual Elements (Gov.
Code, § 8547.8(c))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] made a
protected disclosure in good faith and that [name of defendant]
[discharged/specify other adverse action] [him/her/nonbinary pronoun] as a
result. In order to establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of plaintiff] [specify protected disclosure, e.g., reported
waste, fraud, abuse of authority, violation of law, threats to public
health, bribery, misuse of government property];
2. That [name of plaintiff]’s communication [disclosed/ [or]
demonstrated an intention to disclose] evidence of [an improper
governmental activity/ [or] a condition that could significantly
threaten the health or safety of employees or the public];
3. That [name of plaintiff] made this communication in good faith
[for the purpose of remediating the health or safety condition];
4. That [name of defendant] [discharged/specify other adverse action]
[name of plaintiff];
5. That [name of plaintiff]’s communication was a contributing factor
in [name of defendant]’s decision to [discharge/other adverse action]
[name of plaintiff];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2014; Renumbered from CACI No. 2442 and Revised June 2015
Directions for Use
Under the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.) (the
Act), a state employee or applicant for state employment has a right of action
against any person who retaliates against him or her for having made a “protected
disclosure.” The statute prohibits a “person” from intentionally engaging in acts of
reprisal, retaliation, threats, coercion, or similar acts against the employee or
applicant. (Gov. Code, § 8547.8(c).) A “person” includes the state and its agencies.
(Gov. Code, § 8547.2(d).)
The statute prohibits acts of reprisal, retaliation, threats, coercion, or similar acts
against a state employee or applicant for state employment. (See Gov. Code,
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§ 8547.8(b).) If the case involves an adverse employment action other than
termination, specify the action in elements 4 and 5. These elements may also be
modified if constructive discharge is alleged. See CACI No. 2509, “Adverse
Employment Action” Explained, and CACI No. 2510, “Constructive Discharge”
Explained, for instructions under the Fair Employment and Housing Act that may be
adapted for use with this instruction.
Element 2 alleges a protected disclosure. (See Gov. Code, § 8547.2(e) [“protected
disclosure” defined].)
If an “improper governmental activity” is alleged in element 2, it may be necessary
to expand the instruction with language from Government Code section 8547.2(c) to
define the term. If the court has found that an improper governmental activity is
involved as a matter of law, the jury should be instructed that the issue has been
resolved.
If a health or safety violation is alleged in element 2, include the bracketed language
at the end of element 3.
The statute addresses the possibility of a mixed-motive adverse action. If the
plaintiff can establish that a protected disclosure was a “contributing factor” to the
adverse action (see element 5), the employer may offer evidence to attempt to prove
by clear and convincing evidence that it would have taken the same action for other
permitted reasons. (Gov. Code, § 8547.8(e); see CACI No. 4602, Affırmative
Defense—Same Decision.)
The affirmative defense includes refusing an illegal order as a second protected
matter (along with engaging in protected disclosures). (See Gov. Code, § 8547.8(e);
see also Gov. Code, § 8547.2(b) [defining “illegal order”].) However, Government
Code section 8547.8(c), which creates the plaintiff’s cause of action under the Act,
mentions only making a protected disclosure; it does not expressly reference
refusing an illegal order. But arguably, there would be no need for an affirmative
defense to refusing an illegal order if the refusal itself is not protected. Therefore,
whether a plaintiff may state a claim based on refusing an illegal order may be
unclear; thus the committee has not included refusing an illegal order as within the
elements of this instruction.
Sources and Authority
• California Whistleblower Protection Act. Government Code section 8547 et seq.
• Civil Action Under California Whistleblower Protection Act. Government Code
section 8547.8(c).
• “Improper Governmental Activity” Defined. Government Code section 8547.2(c).
• “Person” Defined. Government Code section 8547.2(d).
• “Protected Disclosure” Defined. Government Code section 8547.2(e).
• Governmental Claims Act Not Applicable. Government Code section 905.2(h).
• “The [Whistleblower Protection Act] prohibits improper governmental activities,
which include interference with or retaliation for reporting such activities.”
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CACI No. 4601 WHISTLEBLOWER PROTECTION
(Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 939 [163 Cal.Rptr.3d
530].)
• “The CWPA ‘prohibits retaliation against state employees who “report waste,
fraud, abuse of authority, violation of law, or threat to public health” [citation].’
A protected disclosure under the CWPA is ‘a good faith communication,
including a communication based on, or when carrying out, job duties, that
discloses or demonstrates an intention to disclose information that may evidence
(1) an improper governmental activity, or (2) a condition that may significantly
threaten the health or safety of employees or the public if the disclosure or
intention to disclose was made for the purpose of remedying that condition.’ ”
(Levi v. Regents of University of California (2017) 15 Cal.App.5th 892, 902 [223
Cal.Rptr.3d 577], internal citation omitted.)
• “[Government Code] Section 8547.8 requires a state employee who is a victim
of conduct prohibited by the [Whistleblower Protection] Act to file a written
complaint with the Personnel Board within 12 months of the events at issue and
instructs, ‘any action for damages shall not be available to the injured party
. . .’ unless he or she has filed such a complaint. The Legislature could hardly
have used stronger language to indicate its intent that compliance with the
administrative procedure of sections 8547.8 and 19683 is to be regarded as a
mandatory prerequisite to a suit for damages under the Act than to say a civil
action is ‘not . . . available’ to persons who have not complied with the
procedure.” (Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100,
1112–1113 [150 Cal.Rptr.3d 405], internal citations omitted.)
• “Exposing conflicts of interest, misuse of funds, and improper favoritism of a
near relative at a public agency are matters of significant public concern that go
well beyond the scope of a similar problem at a purely private institution. State
employees should be free to report violations of those policies without fear of
retribution.” (Levi, supra, 15 Cal.App.5th at p. 905.)
• “Complaints made ‘in the context of internal administrative or personnel actions,
rather than in the context of legal violations’ do not constitute protected
whistleblowing.” (Levi, supra, 15 Cal.App.5th at p. 904.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 284 et seq., 303–304
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-B,
Retaliation Under Other Whistleblower Statutes, ¶ 5:1740 et seq. (The Rutter
Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03[2][c], [3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 118, Civil Service, § 118.56
(Matthew Bender)
3 California Points and Authorities, Ch. 36, Civil Service, § 36.40 (Matthew Bender)
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4602. Affirmative Defense—Same Decision (Gov. Code,
§ 8547.8(e))
If [name of plaintiff] proves that [his/her/nonbinary pronoun] [making a
protected disclosure/refusing an illegal order] was a contributing factor
to [his/her/nonbinary pronoun] [discharge/specify other adverse action],
[name of defendant] is not liable if [he/she/nonbinary pronoun/it] proves by
clear and convincing evidence that [he/she/nonbinary pronoun/it] would
have discharged [name of plaintiff] anyway at that time, for legitimate,
independent reasons.
New December 2014; Renumbered from CACI No. 2443 and Revised June 2015
Directions for Use
Give this instruction in a so-called same-decision or mixed-motive case under the
California Whistleblower Protection Act. (See Gov. Code, § 8547 et seq.; CACI No.
4601, Protected Disclosure by State Employee—California Whistleblower Protection
Act—Essential Factual Elements.) A mixed-motive case is one in which there is
evidence of both a retaliatory reason and a legitimate reason for the adverse action.
Even if the jury finds that the retaliatory reason was a contributing factor, the
employer may avoid liability if it can prove by clear and convincing evidence that it
would have made the same decision anyway for a legitimate reason. (Gov. Code,
§ 8547.8(e).)
Select “refusing an illegal order” if the court has allowed the case to proceed based
on that basis. The affirmative defense statute includes refusing an illegal order as
protected activity along with making a protected disclosure. The statute that creates
the plaintiff’s cause of action does not expressly mention refusing an illegal order.
(Compare Gov. Code, § 8547.8(e) with Gov. Code, § 8547.2(c).) See the Directions
for Use to CACI No. 4601.
Sources and Authority
• California Whistleblower Protection Act. Government Code section 8547 et seq.
• Same-Decision Affirmative Defense. Government Code section 8547.8(e).
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 302
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-B,
Retaliation Under Other Whistleblower Statutes, ¶ 5:1790 et seq. (The Rutter
Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 118, Civil Service, § 118.56
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(Matthew Bender)
3 California Points and Authorities, Ch. 36, Civil Service, § 36.40 (Matthew Bender)
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4603. Whistleblower Protection—Essential Factual Elements (Lab.
Code, § 1102.5)
[Name of plaintiff] claims that [name of defendant] [discharged/[other
adverse employment action]] [him/her/nonbinary pronoun] in retaliation for
[his/her/nonbinary pronoun] [disclosure of information of/refusal to
participate in] an unlawful act. In order to establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] was [name of plaintiff]’s employer;
2. [That [[name of plaintiff] disclosed/[name of defendant] believed
that [name of plaintiff] [had disclosed/might disclose]] to a
[government agency/law enforcement agency/person with
authority over [name of plaintiff]/ [or] an employee with authority
to investigate, discover, or correct legal
[violations/noncompliance]] that [specify information disclosed];]
2. [or]
2. [That [name of plaintiff] [provided information to/testified before]
a public body that was conducting an investigation, hearing, or
inquiry;]
2. [or]
2. [That [name of plaintiff] refused to [specify activity in which plaintiff
refused to participate];]
3. [That [name of plaintiff] had reasonable cause to believe that the
information disclosed [a violation of a [state/federal] statute/[a
violation of/noncompliance with] a [local/state/federal] rule or
regulation];]
3. [or]
3. [That [name of plaintiff] had reasonable cause to believe that the
[information provided to/testimony before] the public body
disclosed [a violation of a [state/federal] statute/[a violation of/
noncompliance with] a [local/state/federal] rule or regulation];]
3. [or]
3. [That [name of plaintiff]’s participation in [specify activity] would
result in [a violation of a [state/federal] statute/[a violation of/
noncompliance with] a [local/state/federal] rule or regulation];]
4. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
5. That [name of plaintiff]’s [disclosure of information/refusal to
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[specify]] was a contributing factor in [name of defendant]’s
decision to [discharge/[other adverse employment action]] [name of
plaintiff];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[The disclosure of policies that an employee believes to be merely unwise,
wasteful, gross misconduct, or the like, is not protected. Instead, [name of
plaintiff] must have reasonably believed that [name of defendant]’s policies
violated federal, state, or local statutes, rules, or regulations.]
[It is not [name of plaintiff]’s motivation for [his/her/nonbinary pronoun]
disclosure, but only the content of that disclosure, that determines
whether the disclosure is protected.]
[A disclosure is protected even though disclosing the information may be
part of [name of plaintiff]’s job duties.]
New December 2012; Revised June 2013, December 2013; Revoked June 2014;
Restored and Revised December 2014; Renumbered from CACI No. 2730 and
Revised June 2015; Revised June 2016, November 2019, May 2020
Directions for Use
The whistleblower protection statute of the Labor Code prohibits retaliation against
an employee who, or whose family member, discloses information about, or refuses
to participate in, an illegal activity. (Lab. Code, § 1102.5(b), (c), (h).) Liability may
be predicated on retaliation by “any person acting on behalf of the employer.” (Lab.
Code, § 1102.5(a)−(d).) Select any of the optional paragraphs as appropriate to the
facts of the case. For claims under Labor Code section 1102.5(c), the plaintiff must
show that the activity in question actually would result in a violation of or
noncompliance with a statute, rule, or regulation, which is a legal determination that
the court is required to make. (Nejadian v. County of Los Angeles (2019) 40
Cal.App.5th 703, 719 [253 Cal.Rptr.3d 404].)
Modifications to the instruction may be required if liability is predicated on an
agency theory and the agent is also a defendant. Modifications will also be required
if the retaliation is against an employee whose family member engaged in the
protected activity.
Select the first option for elements 2 and 3 for claims based on actual disclosure of
information or a belief that plaintiff disclosed or might disclose information. (Cf.
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635,
648−649 [163 Cal.Rptr.3d 392] [under prior version of statute, no liability for
anticipatory or preemptive retaliation based on fear that plaintiff might file a
complaint in the future].) Select the second options for providing information to or
testifying before a public body conducting an investigation, hearing, or inquiry.
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Select the third options for refusal to participate in an unlawful activity, and instruct
the jury that the court has made the determination that the specified activity would
have been unlawful.
It has been held that a report of publicly known facts is not a protected disclosure.
(Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 858
[136 Cal.Rptr.3d 259].) Another court, however, has held that protection is not
necessarily limited to the first public employee to report unlawful acts to the
employer. (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538,
1548−1553 [176 Cal.Rptr.3d 268]; see Lab. Code, § 1102.5(b), (e).)
“Adverse employment action” is viewed the same as it is under the Fair
Employment and Housing Act. (Patten v. Grant Joint Union High School Dist.
(2005) 134 Cal.App.4th 1378, 1387 [37 Cal.Rptr.3d 113]; see CACI No. 2505,
Retaliation—Essential Factual Elements.) Element 4 may be modified to allege
constructive discharge or adverse acts that might not be obviously prejudicial. See
CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510,
“Constructive Discharge” Explained, for instructions that may be adapted for use
with this instruction.
The employee must demonstrate by a preponderance of evidence that a protected
activity was a contributing factor in the adverse action against the employee. The
employer may then attempt to prove by clear and convincing evidence that the
action would have been taken anyway for legitimate, independent reasons even if
the employee had not engaged in the protected activities. (See Lab. Code, § 1102.6;
CACI No. 4604, Affırmative Defense—Same Decision.)
Sources and Authority
• Retaliation Against Whistleblower Prohibited. Labor Code section 1102.5.
• Affirmative Defense: Same Decision. Labor Code section 1102.6.
• “The elements of a section 1102.5(b) retaliation cause of action require that (1)
the plaintiff establish a prima facie case of retaliation, (2) the defendant provide
a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this
explanation is merely a pretext for the retaliation. [¶] We are concerned here
with the first element of a section 1102.5(b) retaliation claim, establishing a
prima facie case of retaliation. To do that, a plaintiff must show (1) she engaged
in a protected activity, (2) her employer subjected her to an adverse employment
action, and (3) there is a causal link between the two.” (Patten, supra, 134
Cal.App.4th at p. 1384, internal citations omitted.)
• “In order to prove a claim under section 1102.5(b), the plaintiff must establish a
prima facie case of retaliation. It is well-established that such a prima facie case
includes proof of the plaintiff’s employment status.” (Bennett v. Rancho
California Water Dist. (2019) 35 Cal.App.5th 908, 921 [248 Cal.Rptr.3d 21],
internal citations omitted.)
• “In 1984, our Legislature provided ‘whistle-blower’ protection in section 1102.5,
subdivision (b), stating that an employer may not retaliate against an employee
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for disclosing a violation of state or federal regulation to a governmental or law
enforcement agency. This provision reflects the broad public policy interest in
encouraging workplace whistle-blowers to report unlawful acts without fearing
retaliation. Section 1102.5, subdivision (b), concerns employees who report to
public agencies. It does not protect plaintiff, who reported his suspicions directly
to his employer. Nonetheless, it does show the Legislature’s interest in
encouraging employees to report workplace activity that may violate important
public policies that the Legislature has stated. The state’s whistle-blower statute
includes administrative regulations as a policy source for reporting an employer’s
wrongful acts and grants employees protection against retaliatory termination.
Thus, our Legislature believes that fundamental public policies embodied in
regulations are sufficiently important to justify encouraging employees to
challenge employers who ignore those policies.” (Green v. Ralee Engineering
Co. (1998) 19 Cal.4th 66, 76–77 [78 Cal.Rptr.2d 16, 960 P.2d 1046].)
• “[T]he purpose of . . . section 1102.5(b) ‘is to ‘ “encourag[e] workplace whistle-
blowers to report unlawful acts without fearing retaliation.” ’ ” (Diego v. Pilgrim
United Church of Christ (2014) 231 Cal.App.4th 913, 923 [180 Cal.Rptr.3d
359].)
• “Once it is determined that the activity would result in a violation or
noncompliance with a statute, rule, or regulation, the jury must then determine
whether the plaintiff refused to participate in that activity and, if so, whether that
refusal was a contributing factor in the defendant’s decision to impose an
adverse employment action on the plaintiff.” (Nejadian, supra, 40 Cal.App.5th at
p. 719.)
• “As a general proposition, we conclude the court could properly craft
instructions in conformity with law developed in federal cases interpreting the
federal whistleblower statute. As the court acknowledged, it was not bound by
such federal interpretations. Nevertheless, the court could properly conclude that
the jury required guidance as to what did and did not constitute ‘disclosing
information’ or a ‘protected disclosure’ under the California statutes.” (Mize-
Kurzman, supra, 202 Cal.App.4th at p. 847.)
• “The court erred in failing to distinguish between the disclosure of policies that
plaintiff believed to be unwise, wasteful, gross misconduct or the like, which are
subject to the [debatable differences of opinion concerning policy matters]
limitation, and the disclosure of policies that plaintiff reasonably believed
violated federal or state statutes, rules, or regulations, which are not subject to
this limitation, even if these policies were also claimed to be unwise, wasteful or
to constitute gross misconduct.” (Mize-Kurzman, supra, 202 Cal.App.4th at pp.
852–853.)
• “[I]t is not the motive of the asserted whistleblower, but the nature of the
communication that determines whether it is covered.” (Mize-Kurzman, supra,
202 Cal.App.4th at p. 852, original italics.)
• “[I]f we interpret section 1102.5 to require an employee to go to a different
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public agency or directly to a law enforcement agency before he or she can be
assured of protection from retaliation, we would be encouraging public
employees who suspected wrongdoing to do nothing at all. Under the scenario
envisioned by the [defendant], if the employee reports his or her suspicions to
the agency, . . . , he or she will have to suffer any retaliatory conduct with no
legal recourse. If the employee reports suspicions to an outside agency or law
enforcement personnel, he or she risks subjecting the agency to negative
publicity and loss of public support which could ensue without regard to whether
the charges prove to be true. At the same time, a serious rift in the employment
relationship will have occurred because the employee did not go through official
channels within the agency which was prepared to investigate the charges. We
see no reason to interpret the statute to create such anomalous results.”
(Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 243 [101
Cal.Rptr.2d 893].)
• “Labor Code section 1102.5, subdivision (b) protects employee reports of
unlawful activity by third parties such as contractors and employees, as well [as]
unlawful activity by an employer. In support of our conclusion, we note that an
employer may have a financial motive to suppress reports of illegal conduct by
employees and contractors that reflect poorly on that employer.” (McVeigh v.
Recology San Francisco (2013) 213 Cal.App.4th 443, 471 [152 Cal.Rptr.3d 595],
internal citation omitted.)
• “We are persuaded that [instructing the jury that reporting publicly known facts
is not a protected disclosure] was a proper limitation on what constitutes
disclosure protected by California law.” (Mize-Kurzman, supra, 202 Cal.App.4th
at p. 858.)
• “The report of ‘publicly known’ information or ‘already known’ information is
distinct from a rule in which only the first employee to report or disclose
unlawful conduct is entitled to protection from whistleblower retaliation.”
(Hager, supra, 228 Cal.App.4th at p. 1552.)
• “Protection only to the first employee to disclose unlawful acts would defeat the
legislative purpose of protecting workplace whistleblowers, as employees would
not come forward to report unlawful conduct for fear that someone else already
had done so. The ‘first report’ rule would discourage whistleblowing. Thus, the
[defendant]’s interpretation is a disincentive to report unlawful conduct. We see
no such reason to interpret the statute in a manner that would contradict the
purpose of the statute.” (Hager, supra, 228 Cal.App.4th at p. 1550.)
• “Matters such as transferring employees, writing up employees, and counseling
employees are personnel matters. ‘To exalt these exclusively internal personnel
disclosures with whistleblower status would create all sorts of mischief. Most
damagingly, it would thrust the judiciary into micromanaging employment
practices and create a legion of undeserving protected “whistleblowers” arising
from the routine workings and communications of the job site. . . .’ ” (Mueller
v. County of Los Angeles (2009) 176 Cal.App.4th 809, 822 [98 Cal.Rptr.3d
281].)
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• “ ‘A wrongful termination action is viable where the employee alleges he [or
she] was terminated for reporting illegal activity which could cause harm, not
only to the interests of the employer but also to the public.’ ‘An action brought
under the whistleblower statute is inherently such an action.’ To preclude a
whistleblower from revealing improper conduct by the government based on
confidentiality would frustrate the legislative intent underlying the whistleblower
statutes. For reasons of public policy, actions against a public entity for claims
of discharge from or termination of employment grounded on a whistleblower
claim are not barred by governmental immunity.” (Whitehall v. County of San
Bernardino (2017) 17 Cal.App.5th 352, 365 [225 Cal.Rptr.3d 321], internal
citations omitted.)
• “Although [the plaintiff] did not expressly state in his disclosures that he
believed the County was violating or not complying with a specific state or
federal law, Labor Code section 1102.5, subdivision (b), does not require such an
express statement. It requires only that an employee disclose information and
that the employee reasonably believe the information discloses unlawful
activity.” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592–593 [248
Cal.Rptr.3d 696].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 373, 374
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-A,
Retaliation Under Title VII and FEHA, ¶ 5:1538 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Employment
Torts And Related Claims: Other Statutory Claims, ¶ 5:894 et seq. (The Rutter
Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Public Entities and Offıcers: False
Claims Actions, § 100.42 et seq. (Matthew Bender)
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4604. Affirmative Defense—Same Decision (Lab. Code, § 1102.6)
If [name of plaintiff] proves that [his/her/nonbinary pronoun] [disclosure of
information of/refusal to participate in] an unlawful act was a
contributing factor to [his/her/nonbinary pronoun] [discharge/[other
adverse employment action]], [name of defendant] is not liable if [he/she/
nonbinary pronoun/it] proves by clear and convincing evidence that [he/
she/nonbinary pronoun/it] would have [discharged/[other adverse
employment action]] [name of plaintiff] anyway at that time for legitimate,
independent reasons.
New December 2013; Renumbered from CACI No. 2731 and Revised June 2015
Directions for Use
Give this instruction in a so-called mixed-motive case under the whistleblower
protection statute of the Labor Code. (See Lab. Code, § 1102.5; CACI No. 4603,
Whistleblower Protection—Essential Factual Elements.) A mixed-motive case is one
in which there is evidence of both a retaliatory and a legitimate reason for the
adverse action. Even if the jury finds that the retaliatory reason was a contributing
factor, the employer may avoid liability if it can prove by clear and convincing
evidence that it would have made the same decision anyway for a legitimate reason.
(Lab. Code, § 1102.6.)
Sources and Authority
• Same-Decision Affirmative Defense. Labor Code section 1102.6.
• “[Plaintiff] points to Labor Code section 1102.6, which requires the employer to
prove a same-decision defense by clear and convincing evidence when a plaintiff
has proven by a preponderance of the evidence that the employer’s violation of
the whistleblower statute was a ‘contributing factor’ to the contested employment
decision. Yet the inclusion of the clear and convincing evidence language in one
statute does not suggest that the Legislature intended the same standard to apply
to other statutes implicating the same-decision defense.” (Harris v. City of Santa
Monica (2013) 56 Cal. 4th 203, 239 [152 Cal.Rptr.3d 392, 294 P.3d 49]; internal
citation omitted.)
• “[W]hen we refer to a same-decision showing, we mean proof that the employer,
in the absence of any discrimination, would have made the same decision at the
time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original
italics.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 373, 374
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-A,
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Retaliation Under Title VII and FEHA, ¶ 5:1538 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.12 (Matthew Bender)
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4605. Whistleblower Protection—Health or Safety
Complaint—Essential Factual Elements (Lab. Code, § 6310)
[Name of plaintiff] claims that [name of defendant] [discharged/[other
adverse employment action]] [him/her/nonbinary pronoun] in retaliation for
[his/her/nonbinary pronoun] [specify, e.g., complaint to the Division of
Occupational Safety and Health regarding unsafe working conditions]. In
order to establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] was an employee of [name of defendant];
2. [That [name of plaintiff], on [his/her/nonbinary pronoun] own
behalf or on behalf of others, [select one or more of the following
options:]
2. [made [an oral/a written] complaint to [specify to whom complaint
was directed, e.g., the Division of Occupational Safety and Health]
regarding [unsafe/unhealthy] working conditions;]
2. [or]
2. [[initiated a proceeding/caused a proceeding to be initiated]
relating to [his/her/nonbinary pronoun [or] another person’s]
rights to workplace health or safety;]
2. [or]
2. [[testified/was about to testify] in a proceeding related to [his/her/
nonbinary pronoun [or] another person’s] rights to workplace
health or safety;]
2. [or]
2. [exercised [his/her/nonbinary pronoun [or] another person’s] rights
to workplace health or safety;]
2. [or]
2. [participated in a workplace health and safety committee;]
2. [or]
2. [reported a work-related fatality, injury, or illness;]
2. [or]
2. [requested access to occupational injury or illness reports and
records;]
2. [or]
2. [exercised [specify other right(s) protected by the federal
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Occupational Safety and Health Act];]
3. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
4. That [name of plaintiff]’s [specify] was a substantial motivating
reason for [name of defendant]’s decision to [discharge/[other
adverse employment action]] [name of plaintiff];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2015; Revised December 2016, May 2018
Directions for Use
Use this instruction for a whistleblower claim under Labor Code section 6310 for
employer retaliation for an employee’s, or an employee’s family member’s,
complaint or other protected activity about health or safety conditions. Select the
appropriate statutorily protected activity in element 2 and summarize it in the
introductory paragraph. (See Lab. Code, § 6310(a), (c).)
With regard to the first option in element 2, the complaint must have been made to
(1) the Division of Occupational Safety and Health, (2) to another governmental
agencies having statutory responsibility for or assisting the division with reference
to employee safety or health, (3) to the employer, or (4) to the employee’s
representative. (Lab. Code, § 6310(a)(1).)
The statute requires that the employee’s complaint be “bona fide.” (See Lab. Code,
§ 6310(b).) There appears to be a split of authority as to whether “bona fide” means
that there must be an actual health or safety violation or only that the employee
have a good-faith belief that there are violations. (See Touchstone Television
Productions v. Superior Court (2012) 208 Cal.App.4th 676, 682, fn. 5 [145
Cal.Rptr.3d 766].) The instruction should be modified if the court decides to instruct
one way or the other on the meaning of “bona fide.”
Note that element 4 uses the term “substantial motivating reason” to express both
intent and causation between the employee’s protected conduct and the defendant’s
adverse action. “Substantial motivating reason” has been held to be the appropriate
standard under the Fair Employment and Housing Act to address the possibility of
both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No.
2507, “Substantial Motivating Reason” Explained.) Whether the FEHA standard
applies under Labor Code section 6310 has not been addressed by the courts. There
is authority for a “but for” causation standard instead of “substantial motivating
reason.” (See Touchstone Television Productions, supra, 208 Cal.App.4th at pp.
681–682.)
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Sources and Authority
• Whistleblower Protection for Report of Health or Safety Violation. Labor Code
section 6310.
• “Division” Defined. Labor Code section 6302(d).
• “[Plaintiff]’s action is brought under section 6310, subdivision (a)(1), which
prohibits an employer from discriminating against an employee who makes ‘any
oral or written complaint.’ Subdivision (b) provides that ‘[a]ny employee who is
discharged, threatened with discharge, demoted, suspended, or in any other
manner discriminated against in the terms and conditions of employment by his
or her employer because the employee has made a bona fide oral or written
complaint to . . . his or her employer . . . of unsafe working conditions, or
work practices . . . shall be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by the acts of the employer.’ ” (Sheridan v.
Touchstone Television Productions, LLC (2015) 241 Cal.App.4th 508, 512 [193
Cal.Rptr.3d 811].)
• “[T]he plaintiff did not lack a remedy: she could sue under section 6310,
subdivision (b) which permits ‘an action for damages if the employee is
discharged, threatened with discharge, or discriminated against by his or her
employer because of the employee’s complaints about unsafe work conditions.
Here, it is alleged that [the defendant] discriminated against [the plaintiff] by not
renewing her employment contract. To prevail on the claim, she must prove that,
but for her complaints about unsafe work conditions, [the defendant] would have
renewed the employment contract. Damages, however, are limited to “lost wages
and work benefits caused by the acts of the employer.” ’ ” (Touchstone Television
Productions, supra, 208 Cal.App.4th at pp. 681–682, original italics.)
• “The voicing of a fear about one’s safety in the workplace does not necessarily
constitute a complaint about unsafe working conditions under Labor Code
section 6310. [Plaintiff]’s declaration shows only that she became frightened for
her safety as a result of her unfortunate experience . . . and expressed her fear
to [defendant]; it is not evidence that the . . . office where she worked was
actually unsafe within the meaning of Labor Code sections 6310 and 6402.
Hence, [plaintiff]’s declaration fails to raise a triable issue of fact as to whether
she was terminated for complaining to [defendant] about unsafe working
conditions in violation of Labor Code section 6310.” (Muller v. Auto. Club of So.
Cal. (1998) 61 Cal.App.4th 431, 452 [71 Cal.Rptr.2d 573], disapproved on other
grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019,
1031, fn. 6 [130 Cal.Rptr.2d 662, 63 P.3d 220].)
• “Citing Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431,
452 [71 Cal.Rptr.2d 573], defendants assert plaintiff’s causes of action based on
section 6310 must fail because an essential element of a section 6310 violation
is that the workplace must actually be unsafe. We first note that the Muller court
cites no authority for this assertion. It appears to contradict Justice Grodin’s
pronouncement that ‘. . . an employee is protected against discharge or
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discrimination for complaining in good faith about working conditions or
practices which he reasonably believes to be unsafe, whether or not there exists
at the time of the complaint an OSHA standard or order which is being
violated.’ We agree that an employee must be protected against discharge for a
good faith complaint about working conditions which he believes to be unsafe.”
(Cabesuela v. Browning-Ferris Indus. (1998) 68 Cal.App.4th 101, 109 [80
Cal.Rptr.2d 60], internal citation omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 405
2 Wilcox, California Employment Law, Ch. 21, Occupational Health and Safety
Regulation, § 21.20 (Matthew Bender)
3 California Torts, Ch. 40A, Wrongful Termination, § 40A.30 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 et seq. (Matthew Bender)
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4606. Whistleblower Protection—Unsafe Patient Care and
Conditions—Essential Factual Elements (Health & Saf. Code,
§ 1278.5)
Revoked November 2017
See Shaw v. Superior Court (2017) 2 Cal.5th 983 [216 Cal.Rptr.3d 643,
393 P.3d 98].
4607–4699. Reserved for Future Use
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VF-4600. False Claims Act: Whistleblower Protection (Gov. Code,
§ 12653)
We answer the questions submitted to us as follows:
1. Was [name of plaintiff] an employee of [name of defendant]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff] [specify acts done in furthering the false
claims action or to stop a false claim]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] act [in furtherance of a false claims action/
to stop a false claim]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [discharge/specify other adverse action]
[name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Were [name of plaintiff]’s acts [in furtherance of a false claims
action/to stop a false claim] a substantial motivating reason for
[name of defendant]’s decision to [discharge/other adverse action]
[him/her/nonbinary pronoun]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
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harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016
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Directions for Use
This verdict form is based on CACI No. 4600, False Claims Act: Whistleblower
Protection—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 4 and 5 may be modified to allege constructive discharge. Questions 2
through 5 of CACI No. VF-2408, Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Endure Intolerable Conditions for Improper Purpose
That Violates Public Policy, should be adapted and included in such a case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-4601. Protected Disclosure by State Employee—California
Whistleblower Protection Act—Affirmative Defense—Same
Decision (Gov. Code, § 8547.8(c))
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] [specify protected disclosure, e.g., report
waste, fraud, abuse of authority, violation of law, threats to public
health, bribery, misuse of government property]?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of plaintiff]’s communication [disclose/ [or] demonstrate
an intention to disclose] evidence of [an improper governmental
activity/ [or] a condition that could significantly threaten the
health or safety of employees or the public]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
3. Did [name of plaintiff] make this communication in good faith [for
the purpose of remediating the health or safety condition]?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
4. Did [name of defendant] [discharge/specify other adverse action]
[name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff]’s communication a contributing factor in
[name of defendant]’s decision to [discharge/other adverse action]
[him/her/nonbinary pronoun]?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If you
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answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Would [name of defendant] have [discharged/specify other adverse
action] [name of plaintiff] anyway at that time, for legitimate,
independent reasons?
7. Yes No
7. If your answer to question 7 is no, then answer question 8. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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WHISTLEBLOWER PROTECTION VF-4601
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 4601, Protected Disclosure by State
Employee—California Whistleblower Protection Act—Essential Factual Elements,
and CACI No. 4602, Affırmative Defense—Same Decision.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If a health or safety violation is presented in question 2, include the bracketed
language at the end of question 3.
Questions 4 and 5 may be modified to allege constructive discharge. Questions 2
through 5 of CACI No. VF-2408, Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Endure Intolerable Conditions for Improper Purpose
That Violates Public Policy, should be adapted and included in such a case.
Question 7 presents the employer’s affirmative defense that it would have made the
same decision anyway for legitimate reasons even though the jury finds that
retaliation for whistleblowing was also a contributing factor for the adverse action.
Question 7 must be proved by clear and convincing evidence. (See Gov. Code,
§ 8547.8(e).)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
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VF-4602. Whistleblower Protection—Affirmative Defense of Same
Decision (Lab. Code, §§ 1102.5, 1102.6)
We answer the questions submitted to us as follows:
1. Was [name of defendant] [name of plaintiff]’s employer?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [[name of plaintiff] disclose/[name of defendant] believe that
[name of plaintiff] [had disclosed/might disclose]] to a [government
agency/law enforcement agency/person with authority over [name
of plaintiff]/ [or] an employee with authority to investigate,
discover, or correct legal [violations/noncompliance]] that [specify
information disclosed]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[3. Did [name of plaintiff] have reasonable cause to believe that the
information disclosed [a violation of a [state/federal] statute/[a
violation of/noncompliance with] a [local/state/federal] rule or
regulation]?
[3. Yes No
[3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
4. Did [name of defendant] [discharge/specify other adverse action]
[name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff]’s disclosure of information a contributing
factor in [name of defendant]’s decision to [discharge/other adverse
action] [him/her/nonbinary pronoun]?
5. Yes No
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WHISTLEBLOWER PROTECTION VF-4602
5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Would [name of defendant] have [discharged/specify other adverse
action] [name of plaintiff] anyway at that time, for legitimate,
independent reasons?
7. Yes No
7. If your answer to question 7 is no, then answer question 8. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
1345
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VF-4602 WHISTLEBLOWER PROTECTION
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 4603, Whistleblower Protection—Essential
Factual Elements, and CACI No. 4604, Affırmative Defense—Same Decision.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 2 and 3 may be replaced with one of the other options for elements 2 and
3 in CACI No. 4603. Omit question 3 entirely, however, if the plaintiff allegedly
refused to participate in an activity that would result in a violation or
noncompliance with a statute, rule, or regulation. (Nejadian v. County of Los
Angeles (2019) 40 Cal.App.5th 703, 719 [253 Cal.Rptr.3d 404].) If the plaintiff
allegedly refused to participate in an activity that would result in a violation or
noncompliance with a statute, rule, or regulation, replace “disclosure of information”
in question 5 with “refusal to [specify activity employee refused to participate in and
what specific statute, rule, or regulation would be violated by that activity].”
Questions 4 and 5 may be modified to allege constructive discharge. Questions 2
through 5 of CACI No. VF-2408, Constructive Discharge in Violation of Public
Policy—Plaintiff Required to Endure Intolerable Conditions for Improper Purpose
That Violates Public Policy, should be adapted and included in such a case.
Question 7 presents the employer’s affirmative defense that it would have made the
same decision anyway for legitimate reasons even though the jury finds that
retaliation for whistleblowing was also a contributing factor for the adverse action.
Question 7 must be proved by clear and convincing evidence. (See Lab. Code,
§ 1102.6.)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
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WHISTLEBLOWER PROTECTION VF-4602
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-4603–VF-4699. Reserved for Future Use
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Copyright Judicial Council of California
CONSUMERS LEGAL REMEDIES ACT
4700. Consumers Legal Remedies Act—Essential Factual Elements (Civ. Code,
§ 1770)
4701. Consumers Legal Remedies Act—Notice Requirement for Damages (Civ.
Code, § 1782)
4702. Consumers Legal Remedies Act—Statutory Damages—Senior or Disabled
Plaintiff (Civ. Code, § 1780(b))
4703–4709. Reserved for Future Use
4710. Consumers Legal Remedies Act—Affirmative Defense—Bona Fide Error
and Correction (Civ. Code, § 1784)
4711–4799. Reserved for Future Use
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4700. Consumers Legal Remedies Act—Essential Factual
Elements (Civ. Code, § 1770)
[Name of plaintiff] claims that [name of defendant] engaged in unfair
methods of competition and unfair or deceptive acts or practices in a
transaction that resulted, or was intended to result, in the sale or lease of
goods or services to a consumer, and that [name of plaintiff] was harmed
by [name of defendant]’s violation. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] acquired, or sought to acquire, by
purchase or lease, [specify product or service] for personal, family,
or household purposes;
2. That [name of defendant] [specify one or more prohibited practices
from Civ. Code, § 1770(a), e.g., represented that [product or service]
had characteristics, uses, or benefits that it did not have];
3. That [name of plaintiff] was harmed; and
4. That [name of plaintiff]’s harm resulted from [name of defendant]’s
conduct.
[[Name of plaintiff]’s harm resulted from [name of defendant]’s conduct if
[name of plaintiff] relied on [name of defendant]’s representation. To prove
reliance, [name of plaintiff] need only prove that the representation was a
substantial factor in [his/her/nonbinary pronoun] decision.
[He/She/Nonbinary pronoun] does not need to prove that it was the
primary factor or the only factor in the decision.
If [name of defendant]’s representation of fact was material, reliance may
be inferred. A fact is material if a reasonable consumer would consider it
important in deciding whether to buy or lease the [goods/services].]
New November 2017
Directions for Use
Give this instruction for a claim under the Consumers Legal Remedies Act (CLRA).
The CLRA prohibits 27 distinct unfair methods of competition and unfair or
deceptive acts or practices with regard to consumer transactions. (See Civ. Code,
§ 1770(a).) In element 2, insert the prohibited practice or practices at issue in the
case.
The last two optional paragraphs address the plaintiff’s reliance on the defendant’s
conduct. CLRA claims not sounding in fraud do not require reliance. (See, e.g., Civ.
Code, § 1770(a)(19) [inserting an unconscionable provision in a contract].) Give
these paragraphs in a case sounding in fraud.
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Many of the prohibited practices involve a misrepresentation made by the defendant.
(See, e.g., Civ. Code, § 1770(a)(4) [using deceptive representations or designations
of geographic origin in connection with goods or services].) In a misrepresentation
claim, the plaintiff must have relied on the information given. (Nelson v. Pearson
Ford Co. (2010) 186 Cal.App.4th 983, 1022 [112 Cal.Rptr.3d 607], disapproved of
on other grounds in Raceway Ford Cases (2016) 2 Cal.5th 161, 180 [211
Cal.Rptr.3d 244, 385 P.3d 397].) An element of reliance is that the information must
have been material (or important). (Collins v. eMachines, Inc. (2011) 202
Cal.App.4th 249, 256 [134 Cal.Rptr.3d 588].)
Other prohibited practices involve a failure to disclose information. (See Gutierrez v.
Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1258 [248
Cal.Rptr.3d 61]; see, e.g., Civ. Code, § 1770(a)(9) [advertising goods or services
with intent not to sell them as advertised].) Reliance in concealment cases is best
expressed in terms that the plaintiff would have behaved differently had the true
facts been known. (See Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23
Cal.Rptr.2d 101, 858 P.2d 568].) The next-to-last paragraph may be modified to
express reliance in this manner. (See CACI No. 1907, Reliance.)
The CLRA provides for class actions. (See Civ. Code, § 1781.) In a class action,
this instruction should be modified to state that only the named plaintiff’s reliance
on the defendant’s representation must be proved. Class-wide reliance does not
require a showing of actual reliance on the part of every class member. Rather, if all
class members have been exposed to the same material misrepresentations, class-
wide reliance will be inferred, unless rebutted by the defendant. (Vasquez v. Superior
Court (1971) 4 Cal.3d 800, 814–815 [94 Cal.Rptr. 796, 484 P.2d 964]; Occidental
Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 362–363 [134 Cal.Rptr. 388, 556
P.2d 750]; Massachusetts Mut. Life Ins. Co. v. Superior Court (2002) 97
Cal.App.4th 1282, 1293 [119 Cal.Rptr.2d 190].) In class cases then, exposure and
materiality are the only facts that need to be established to justify class-wide relief.
Those determinations are a part of the class certification analysis and will, therefore,
be within the purview of the court.
Sources and Authority
• Consumers Legal Remedies Act: Prohibited Practices. Civil Code section
1770(a).
• Consumers Legal Remedies Act: Private Cause of Action. Civil Code section
1780(a).
• “ ‘The CLRA makes unlawful, in Civil Code section 1770, subdivision (a) . . .
various “unfair methods of competition and unfair or deceptive acts or practices
undertaken by any person in a transaction intended to result or which results in
the sale or lease of goods or services to any consumer.” ’ The CLRA proscribes
27 specific acts or practices.” (Rubenstein v. The Gap, Inc. (2017) 14
Cal.App.5th 870, 880–881 [222 Cal.Rptr.3d 397], internal citation omitted.)
• “The Legislature enacted the CLRA ‘to protect consumers against unfair and
deceptive business practices and to provide efficient and economical procedures
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CACI No. 4700 CONSUMERS LEGAL REMEDIES ACT
to secure such protection.’ ” (Valdez v. Seidner-Miller, Inc. (2019) 33
Cal.App.5th 600, 609 [245 Cal.Rptr.3d 268].)
• “ ‘Whether a practice is deceptive, fraudulent, or unfair is generally a question of
fact which requires “consideration and weighing of evidence from both sides”
and which usually cannot be made on demurrer.’ ” (Brady v. Bayer Corp. (2018)
26 Cal.App.5th 1156, 1164 [237 Cal.Rptr.3d 683].)
• “The CLRA is set forth in Civil Code section 1750 et seq. . . . [U]nder the
CLRA a consumer may recover actual damages, punitive damages and attorney
fees. However, relief under the CLRA is limited to ‘[a]ny consumer who suffers
any damage as a result of the use or employment by any person of a method,
act, or practice’ unlawful under the act. As [defendant] argues, this limitation on
relief requires that plaintiffs in a CLRA action show not only that a defendant’s
conduct was deceptive but that the deception caused them harm.” (Massachusetts
Mutual Life Ins. Co., supra, 97 Cal.App.4th at p. 1292, original italics, internal
citations omitted.)
• “[T]he CLRA does not require lost injury or property, but does require damage
and causation. ‘Under Civil Code section 1780, subdivision (a), CLRA actions
may be brought “only by a consumer ‘who suffers any damage as a result of the
use or employment’ of a proscribed method, act, or practice. . . . Accordingly,
‘plaintiffs in a CLRA action [must] show not only that a defendant’s conduct
was deceptive but that the deception caused them harm.” ’ ” (Veera v. Banana
Republic, LLC (2016) 6 Cal.App.5th 907, 916, fn. 3 [211 Cal.Rptr.3d 769].)
• “ ‘To have standing to assert a claim under the CLRA, a plaintiff must have
“suffer[ed] any damage as a result of the . . . practice declared to be
unlawful.” ’ Our Supreme Court has interpreted the CLRA’s ‘any damage’
requirement broadly, concluding that the ‘phrase . . . is not synonymous with
“actual damages,” which generally refers to pecuniary damages.’ Rather, the
consumer must merely ‘experience some [kind of] damage,’ or ‘some type of
increased costs’ as a result of the unlawful practice.” (Hansen v. Newegg.com
Americas, Inc. (2018) 25 Cal.App.5th 714, 724 [236 Cal.Rptr.3d 61], internal
citations omitted.)
• “This language does not create an automatic award of statutory damages upon
proof of an unlawful act.” (Moran v. Prime Healthcare Management, Inc. (2016)
3 Cal.App.5th 1131, 1152 [208 Cal.Rptr.3d 303].)
• “[Civil Code section 1761(e)] provides a broad definition of ‘transaction’ as ‘an
agreement between a consumer and any other person, whether or not the
agreement is a contract enforceable by action, and includes the making of, and
the performance pursuant to, that agreement.’ ” (Wang v. Massey Chevrolet
(2002) 97 Cal.App.4th 856, 869 [118 Cal.Rptr.2d 770].)
• “ ‘While a plaintiff must show that the misrepresentation was an immediate
cause of the injury-producing conduct, the plaintiff need not demonstrate it was
the only cause. “ ‘It is not . . . necessary that [the plaintiff’s] reliance upon the
truth of the fraudulent misrepresentation be the sole or even the predominant or
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CONSUMERS LEGAL REMEDIES ACT CACI No. 4700
decisive factor in influencing his conduct. . . . It is enough that the
representation has played a substantial part, and so has been a substantial factor,
in influencing his decision.’ [Citation.]” ’ In other words, it is enough if a
plaintiff shows that ‘ “in [the] absence [of the misrepresentation] the plaintiff ‘in
all reasonable probability’ would not have engaged in the injury-producing
conduct.’ [Citation.]’ ” (Veera, supra, 6 Cal.App.5th at p. 919, internal citations
omitted.)
• “Under the CLRA, plaintiffs must show actual reliance on the misrepresentation
and harm.” (Nelson, supra, 186 Cal.App.4th at p. 1022.)
• “A ‘ “misrepresentation is material for a plaintiff only if there is reliance—that
is, ‘ “ ‘without the misrepresentation, the plaintiff would not have acted as he
did’ ” ’ . . . .” [Citation.]’ ” (Moran, supra, 3 Cal.App.5th at p. 1152.)
• “[M]ateriality usually is a question of fact. In certain cases, a court can
determine the factual misrepresentation or omission is so obviously unimportant
that the jury could not reasonably find that a reasonable person would have been
influence (sic) by it.” (Gutierrez, supra, 19 Cal.App.5th at p. 1262, internal
citations omitted.)
• “If a claim of misleading labeling runs counter to ordinary common sense or the
obvious nature of the product, the claim is fit for disposition at the demurrer
stage of the litigation.” (Brady, supra, 26 Cal.App.5th at p. 1165.)
• “In the CLRA context, a fact is deemed ‘material,’ and obligates an exclusively
knowledgeable defendant to disclose it, if a ‘ “reasonable [consumer]” ’ would
deem it important in determining how to act in the transaction at issue.”
(Collins, supra, 202 Cal.App.4th at p. 256.)
• “If the undisclosed assessment was material, an inference of reliance as to the
entire class would arise, subject to any rebuttal evidence [defendant] might
offer.” (Massachusetts Mutual Life Ins. Co., supra, 97 Cal.App.4th at p. 1295.)
• “[U]nless the advertisement targets a particular disadvantaged or vulnerable
group, it is judged by the effect it would have on a reasonable consumer.”
(Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351,
1360 [8 Cal.Rptr.3d 22].)
• “In California . . . product mislabeling claims are generally evaluated using a
‘reasonable consumer’ standard, as distinct from an ‘unwary consumer’ or a
‘suspicious consumer’ standard.” (Brady, supra, 26 Cal.App.5th at p. 1174.)
• “Not every omission or nondisclosure of fact is actionable. Consequently, we
must adopt a test identifying which omissions or nondisclosures fall within the
scope of the CLRA. Stating that test in general terms, we conclude an omission
is actionable under the CLRA if the omitted fact is (1) ‘contrary to a [material]
representation actually made by the defendant’ or (2) is ‘a fact the defendant was
obliged to disclose.’ ” (Gutierrez, supra, 19 Cal.App.5th at p. 1258.)
• “[T]here is no independent duty to disclose [safety] concerns. Rather, a duty to
disclose material safety concerns ‘can be actionable in four situations: (1) when
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CACI No. 4700 CONSUMERS LEGAL REMEDIES ACT
the defendant is in a fiduciary relationship with the plaintiff; (2) when the
defendant had exclusive knowledge of material facts not known to the plaintiff;
(3) when the defendant actively conceals a material fact from the plaintiff; or (4)
when the defendant makes partial representations but also suppresses some
material fact.’ ” (Gutierrez, supra, 19 Cal.App.5th at p. 1260.)
• “Under the CLRA, even if representations and advertisements are true, they may
still be deceptive because ‘ “[a] perfectly true statement couched in such a
manner that it is likely to mislead or deceive the consumer, such as by failure to
disclose other relevant information, is actionable.” [Citation.]’ ” (Jones, supra,
237 Cal.App.4th Supp. at p. 11.)
• “Defendants next allege that plaintiffs cannot sue them for violating the CLRA
because their debt collection efforts do not involve ‘goods or services.’ The
CLRA prohibits ‘unfair methods of competition and unfair or deceptive acts or
practices.’ This includes the inaccurate ‘represent[ation] that a transaction confers
or involves rights, remedies, or obligations which it does not have or involve
. . . .’ However, this proscription only applies with respect to ‘transaction[s]
intended to result or which result[] in the sale or lease of goods or services to
[a] consumer . . . .’ The CLRA defines ‘goods’ as ‘tangible chattels bought or
leased for use primarily for personal, family, or household purposes’, and
‘services’ as ‘work, labor, and services for other than a commercial or business
use, including services furnished in connection with the sale or repair of
goods.’ ” (Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29,
39−40 [185 Cal.Rptr.3d 84], internal citations omitted [mortgage loan is neither
a good nor a service].)
• “[A] ‘reasonable correction offer prevent[s] [the plaintiff] from maintaining a
cause of action for damages under the CLRA, but [does] not prevent [the
plaintiff] from pursuing remedies based on other statutory violations or common
law causes of action based on conduct under those laws.’ ” (Valdez, supra, 33
Cal.App.5th at p. 612.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 298 et seq.
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch.1 4(II)-B, Elements of Claim, ¶ 14:315 et seq. (The Rutter Group)
Cabraser, California Class Actions and Coordinated Proceedings, Ch. 4, California’s
Consumer Legal Remedies Act, § 4.01 et seq. (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 504, Sales: Consumers Legal
Remedies Act, § 504.12 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 1,
Determining the Applicable Law, 1.33
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4701. Consumers Legal Remedies Act—Notice Requirement for
Damages (Civ. Code, § 1782)
To recover actual damages in this case, [name of plaintiff] must prove
that, 30 days or more before filing a claim for damages,
[he/she/nonbinary pronoun] gave notice to [name of defendant] that did all
of the following:
1. Informed [name of defendant] of the particular violations for
which the lawsuit was brought;
2. Demanded that [name of defendant] correct, repair, replace, or
otherwise fix the problem with [specify product or service]; and
3. Provided the notice to the defendants in writing and by certified
or registered mail, return receipt requested, to the place where
the transaction occurred or to [name of defendant]’s principal
place of business within California.
[Name of plaintiff] must have complied exactly with these notice
requirements and procedures.
New November 2017
Directions for Use
Give this instruction if it is disputed whether the plaintiff gave the defendant the
prefiling notice required by Civil Code section 1782(a).
Sources and Authority
• Consumers Legal Remedies Act: Notice Requirement. Civil Code section 1782.
• “[T]he CLRA includes a prefiling notice requirement on actions seeking
damages. At least 30 days before filing a claim for damages under the CLRA,
‘the consumer must notify the prospective defendant of the alleged violations of
[the CLRA] and “[d]emand that such person correct, repair, replace or otherwise
rectify the goods or services alleged to be in violation’ thereof. If, within this
30-day period, the prospective defendant corrects the alleged wrongs, or
indicates that it will make such corrections within a reasonable time, no cause of
action for damages will lie.’ ” (Morgan v. AT&T Wireless Services, Inc. (2009)
177 Cal. App. 4th 1235, 1259−1260 [99 Cal.Rptr.3d 768], internal citations
omitted.)
• “The purpose of the notice requirement of section 1782 is to give the
manufacturer or vendor sufficient notice of alleged defects to permit appropriate
corrections or replacements. The notice requirement commences the running of
certain time constraints upon the manufacturer or vendor within which to comply
with the corrective provisions. The clear intent of the act is to provide and
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facilitate precomplaint settlements of consumer actions wherever possible and to
establish a limited period during which such settlement may be accomplished.
This clear purpose may only be accomplished by a literal application of the
notice provisions.” (Outboard Marine Corp. v. Superior Court (1975) 52
Cal.App.3d 30, 40−41 [124 Cal.Rptr. 852], footnote omitted.)
• “Once a prospective defendant has received notice of alleged violations of
section 1770, the extent of its ameliorative responsibilities differs considerably
depending on whether the notification sets forth an individual or class grievance.
Section 1782, subdivision (b) provides that “[except] as provided in subdivision
(c),” an individual consumer cannot maintain an action for damages under
section 1780 if, within 30 days after receipt of such notice, an appropriate
remedy is given, or agreed to be given within a reasonable time, to the
individual consumer. In contrast, subdivision (c) of section 1782 provides that a
class action for damages may be maintained under section 1781 unless the
prospective defendant shows that it has satisfied all of the following
requirements: (1) identified or made a reasonable effort to identify all similarly
situated consumers; (2) notified such consumers that upon their request it will
provide them with an appropriate remedy; (3) provided, or within a reasonable
time will provide, such relief; and (4) demonstrated that it has ceased, or within
a reasonable time will cease, from engaging in the challenged conduct. [¶] Thus,
unlike the relatively simple resolution of individual grievances under section
1782, subdivision (b), subdivision (c) places extensive affirmative obligations on
prospective defendants to identify and make whole the entire class of similarly
situated consumers.” (Kagan v. Gibraltar Sav. & Loan Assn. (1984) 35 Cal.3d
582, 590−591 [200 Cal.Rptr. 38; 676 P.2d 1060], disapproved on other grounds
in Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 643 fn. 3 [88
Cal.Rptr.3d 859, 200 P.3d 295].)
• “[Plaintiff] argues that substantial compliance only is required by section 1782,
that petitioners had actual notice of the defects, and that a technicality of form
should not be a bar to the action. He asserts that inasmuch as the act mandates a
liberal construction, substantial compliance with notification procedures should
suffice. In the face of the clear, unambiguous, and unequivocal language of the
statute, his contention must fail.” (Outboard Marine Corp., supra, 52 Cal.App.3d
at p. 40 [however, defendant may waive strict compliance].)
• “Filing a complaint before the response period expired was [plaintiff]’s (really
his lawyers’) decision. Instituting the lawsuit could easily have waited until after
[defendant] made its correction offer. The fact that the lawsuit was filed before
[plaintiff] heard back from [defendant] strongly suggests that the correction offer,
unless it was truly extravagant, would have had no effect on [plaintiff]’s (really
his lawyers’) plan to sue.” (Benson v. Southern California Auto Sales, Inc.
(2015) 239 Cal.App.4th 1198, 1209 [192 Cal.Rptr.3d 67], original italics.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 298 et seq.
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Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch. 14(II)-B, Elements of Claim, ¶¶ 14:321 to 14:325 (The Rutter Group)
Cabraser, California Class Actions and Coordinated Proceedings, Ch. 4, California’s
Consumer Legal Remedies Act, § 4.01 et seq. (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 504, Sales: Consumers Legal
Remedies Act, § 504.13 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 1,
Determining the Applicable Law, 1.33
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4702. Consumers Legal Remedies Act—Statutory
Damages—Senior or Disabled Plaintiff (Civ. Code, § 1780(b))
If you decide that [name of plaintiff] has proven [his/her/nonbinary
pronoun] claim against [name of defendant], in addition to any actual
damages that you award, you may award [name of plaintiff] additional
damages up to $5,000 if you find all of the following:
1. That [name of plaintiff] has suffered substantial physical,
emotional, or economic damage because of [name of defendant]’s
conduct;
2. One or more of the following factors:
(a) [Name of defendant] knew or should have known that [his/her/
nonbinary pronoun/its] conduct was directed to one or more
senior citizens or disabled persons;
(b) [Name of defendant]’s conduct caused one or more senior
citizens or disabled persons to suffer:
(1) loss or encumbrance of a primary residence, principal
employment, or source of income;
(2) substantial loss of property set aside for retirement, or for
personal or family care and maintenance; or
(3) substantial loss of payments received under a pension or
retirement plan or a government benefits program, or
assets essential to the health or welfare of the senior citizen
or disabled person;
(b) or
(c) One or more senior citizens or disabled persons are
substantially more vulnerable than other members of the
public to [name of defendant]’s conduct because of age, poor
health or infirmity, impaired understanding, restricted
mobility, or disability, and actually suffered substantial
physical, emotional, or economic damage resulting from the
defendant’s conduct;
2. and
3. That an additional award is appropriate.
New November 2017
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Directions for Use
Give this instruction if the plaintiff is a senior citizen or disabled person seeking to
obtain $5,000 in statutory damages. (See Civ. Code, § 1780(b).)
Sources and Authority
• Consumers Legal Remedies Act: Additional Remedy for Senior Citizens and
Disabled Persons. Civil Code section 1780(b).
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 298 et seq.
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch. 14(II)-B, Elements of Claim, ¶ 14:435 (The Rutter Group)
Cabraser, California Class Actions and Coordinated Proceedings, Ch. 4, California’s
Consumer Legal Remedies Act, § 4.02 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 504, Sales: Consumers Legal
Remedies Act, § 504.13 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 1,
Determining the Applicable Law, 1.33
4703–4709. Reserved for Future Use
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4710. Consumers Legal Remedies Act—Affirmative
Defense—Bona Fide Error and Correction (Civ. Code, § 1784)
[Name of defendant] is not responsible for damages to [name of plaintiff] if
[name of defendant] proves both of the following:
1. The violation[s] alleged by [name of plaintiff] [was/were] not
intentional and resulted from a bona fide error even though
[name of defendant] used reasonable procedures adopted to avoid
any such error; and
2. Within 30 days of receiving [name of plaintiff]’s notice of violation,
[name of defendant] made, or agreed to make within a reasonable
time, an appropriate correction, repair, replacement, or other
remedy of the [specify product or service].
New November 2017
Directions for Use
Different correction requirements apply to class actions. (See Civ. Code, § 1782(c).)
Sources and Authority
• Consumers Legal Remedies Act: Defenses. Civil Code section 1784.
• “Damages are not awardable under the CLRA if the defendant proves its
violation was not intentional and resulted from a bona fide error despite
reasonable procedures to avoid such an error, and remedies the violating goods
or services.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 471
[178 Cal.Rptr.3d 784].)
• “[Defendants] also contend [plaintiff] cannot avoid the safe harbor provided for a
reasonable correction offer under the CLRA by recasting her claim as a violation
of the UCL. This is incorrect. [Plaintiff]’s UCL claim was based directly on
evidence of fraudulent advertising practices and was not dependent on finding an
underlying violation of the CLRA. The CLRA expressly states that the effect of
a reasonable correction offer is to prevent the consumer from maintaining an
action for damages under Civil Code section 1780, but the remedies of the
CLRA are cumulative and the consumer may assert other common law or
statutory causes of action under the procedures and with the remedies provided
for in those laws.” (Flores v. Southcoast Automotive Liquidators, Inc. (2017) 17
Cal.App.5th 841, 852 [226 Cal.Rptr.3d 12].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 298 et seq.
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch. 14(II)-C, Particular Defenses, ¶¶ 14:321–14:505 (The Rutter Group)
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44 California Forms of Pleading and Practice, Ch. 504, Sales: Consumers Legal
Remedies Act, § 504.40 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.37 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 10, Seeking or
Opposing Statutory Remedies in Contract Actions, 10.05
4711–4799. Reserved for Future Use
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CALIFORNIA FALSE CLAIMS ACT
4800. False Claims Act—Essential Factual Elements (Gov. Code, § 12651)
4801. Implied Certification of Compliance With All Contractual
Provisions—Essential Factual Elements
4802–4899. Reserved for Future Use
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4800. False Claims Act—Essential Factual Elements (Gov. Code,
§ 12651)
The California False Claims Act allows a public entity to recover
damages from any person or entity that knowingly presents a false claim
for payment or approval. [[Name of plaintiff] is an individual who brings
this action on behalf of [name of public entity].] [Name of public entity] is a
public entity.
[Name of plaintiff] claims that [name of defendant] presented a false claim
to [it/[name of public entity]] for payment or approval. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] knowingly presented or caused to be
presented a false or fraudulent claim to [name of public entity] for
payment or approval;
2. That the claim was false or fraudulent in that [specify reason, e.g.,
[name of defendant] did not actually perform the work for which
payment or approval was sought]; and
3. That [name of defendant]’s false or fraudulent claim was material
to [name of public entity]’s decision to pay out money to [name of
defendant].
“Knowingly” means that with respect to information about the claim,
[name of defendant]
1. had actual knowledge that the information was false; or
2. acted in deliberate ignorance of the truth or falsity of the
information; or
3. acted in reckless disregard of the truth or falsity of the
information.
3. Proof of specific intent to defraud is not required.
“Material” means that the claim had a natural tendency to influence, or
was capable of influencing, the payment or receipt of [money/property/
services] on the claim.
New May 2018
Directions for Use
An action under the False Claims Act (Gov. Code, § 12650 et seq.) may be brought
by the attorney general if state funds are involved, the public entity that claims to
have paid out money on a false claim, or by a private person acting as a “qui tam”
plaintiff on behalf of the state or public entity. (Gov. Code, § 12650(a)–(c).) Give
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the optional next-to-last sentence of the opening paragraph if the plaintiff is an
individual bringing the action qui tam.
The False Claims Act lists eight prohibited acts that violate the statute. (See Gov.
Code, § 12651(a).) Element 1 sets out the first and most common of the prohibited
acts—the knowing presentation of a false claim. (See Gov. Code, § 12650(a)(1).)
Modify element 1 if a different prohibited act is at issue.
For an instruction on retaliation against an employee for bringing a false claim
action, see CACI No. 4600, False Claims Act: Whistleblower Protection—Essential
Factual Elements.
Sources and Authority
• California False Claims Act. Government Code section 12650 et seq.
• “In 1987, the California Legislature enacted the False Claims Act, patterned on a
similar federal statutory scheme, to supplement governmental efforts to identify
and prosecute fraudulent claims made against state and local governmental
entities. As relevant here, the False Claims Act permits the recovery of civil
penalties and treble damages from any person who ‘[k]nowingly presents or
causes to be presented [to the state or any political subdivision] . . . a false
claim for payment or approval.’ To be liable under the False Claims Act, a
person must have actual knowledge of the information, act in deliberate
ignorance of the truth or falsity of the information, and/or act in reckless
disregard of the truth or falsity of the information.” (Rothschild v. Tyco Internat.
(US), Inc. (2000) 83 Cal.App.4th 488, 494–495 [99 Cal.Rptr.2d 721], internal
citations omitted.)
• “The Legislature designed the CFCA ‘ “to prevent fraud on the public
treasury,” ’ and it ‘ “should be given the broadest possible construction consistent
with that purpose.” ’ ” (San Francisco Unified School Dist. ex rel. Contreras v.
Laidlaw Transit, Inc. (2010) 182 Cal.App.4th 438, 446 [106 Cal.Rptr.3d 84],
internal citations omitted.)
• “Since there are no pattern instructions for CFCA claims, the trial court gave
instructions taken from the language of the statute. Quoting Government Code
section 12651, the trial court explained that a person would be liable for
damages under the CFCA if the person ‘(1) Knowingly presents or causes to be
presented to an officer or employee of the City, a false claim for payment or
approval. [¶] (2) Knowingly makes, uses, or causes to be made or used a false
record or statement to get a false claim paid or approved by the City.’ The
instructions defined ‘person,’ ‘knowingly,’ and ‘claim’ using the language of
Government Code section 12650, but did not define the word ‘false.’ Indeed,
‘false’ is not defined in the statute.” (Thompson Pacific Construction, Inc. v. City
of Sunnyvale (2007) 155 Cal.App.4th 525, 546 [66 Cal.Rptr.3d 175].)
• “We agree with City that the word ‘false’ has no special meaning and that
[claimant]’s concern is really related to the mental state necessary for liability
under the CFCA, an element that was adequately explained in the instructions
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that were given.” (Thompson Pacific, supra, 155 Cal.App.4th at p. 547.)
• “[A]n alleged falsity satisfies the materiality requirement where it has the
‘ “ ‘natural tendency to influence agency action or is capable of influencing
agency action.’ ” [Citation.]’ ” (San Francisco Unified School Dist. ex rel.
Contreras, supra, 182 Cal.App.4th at p. 454.)
• “Our conclusion that the allegations in the Complaint are sufficient to withstand
a demurrer does not mean that every breach of a contract term that is in some
sense ‘material’ necessarily satisfies the materiality requirement for a CFCA
claim. That is, a false implied certification relating to a ‘material’ contract term
may not always be ‘material’ to the government’s decision to pay a contractor.
Materiality is a mixed question of law and fact, and a showing in a motion for
summary judgment or at trial that the alleged breach would not have affected the
payment decision will defeat a CFCA claim.” (San Francisco Unified School
Dist. ex rel. Contreras, supra, 182 Cal.App.4th at p. 456, internal citation
omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 306, 307
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 884
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-B,
Retaliation Under Other Whistleblower Statutes, ¶ 5:1770 et seq. (The Rutter
Group)
6 Levy et al., California Torts, Ch. 91, Contractual Arbitration, § 91.08 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 468, Public Entities and Offıcers:
False Claims Actions, § 468.21 (Matthew Bender)
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4801. Implied Certification of Compliance With All Contractual
Provisions—Essential Factual Elements
Under the California False Claims Act, when [a/an] [specify defendant’s
status, e.g., vendor] submits a claim to a public entity for payment on a
contract, [he/she/nonbinary pronoun/it] impliedly certifies that [he/she/
nonbinary pronoun/it] has complied with all of the requirements of the
contract, not just those relevant to the claim presented. [[Name of
plaintiff] is an individual who brings this action on behalf of [name of
public entity].] [Name of public entity] is a public entity.
[Name of plaintiff] claims that [name of defendant] presented a false claim
to [it/[name of public entity]] for payment or approval by falsely certifying
by implication that it had complied with the requirements of the
contract. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] had not complied with [specify
contractual terms alleged to have been breached] when it presented
a claim for payment to [name of public entity].
2. That when [name of defendant] submitted its claims for payment,
[he/she/nonbinary pronoun/it] knowingly failed to disclose that [he/
she/nonbinary pronoun/it] had not complied with all of the terms
of the contract; and
3. That [name of defendant]’s failure to comply with all the terms of
the contract was material to [name of public entity]’s decision to
make the requested payment to [name of defendant].
“Knowingly” means that with respect to the claim, [name of defendant]
1. had actual knowledge that [he/she/nonbinary pronoun/it] had failed
to disclose [his/her/nonbinary pronoun/its] noncompliance; or
2. acted in deliberate ignorance of the truth or falsity of whether
[he/she/nonbinary pronoun/it] had failed to disclose
[his/her/nonbinary pronoun/its] noncompliance; or
3. acted in reckless disregard of the truth or falsity of whether [he/
she/nonbinary pronoun/it] had failed to disclose [his/her/nonbinary
pronoun/its] noncompliance.
3. Proof of specific intent to defraud is not required.
A failure to comply with all the terms of the contract is “material” if it
had a natural tendency to influence, or was capable of influencing, the
payment or receipt of [money/property/services] on the claim.
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New May 2018
Directions for Use
Under the California False Claims Act, a vendor impliedly certifies compliance with
its express contractual requirements when it bills a public agency for providing
goods or services. A False Claims Act action may be based on allegations that the
implied certification was false and had a natural tendency to influence the public
agency’s decision to pay for the goods or services. (San Francisco Unified School
Dist. ex rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal.App.4th 438, 441
[106 Cal.Rptr.3d 84].)
The vendor must have made the claim knowing that it had failed to disclose
noncompliance with all of the terms of the contract. (See San Francisco Unified
School Dist. ex rel. Contreras, supra, 182 Cal.App.4th at pp. 452–453 [contractor
must have the requisite knowledge, rendering the failure to disclose the contractual
noncompliance fraudulent]; see also Rothschild v. Tyco Internat. (US), Inc. (2000)
83 Cal.App.4th 488, 494–495 [99 Cal.Rptr.2d 721].) While the breach must be
material as defined, it does not have to involve the particular contractual provision
on which payment is sought. (See San Francisco Unified School Dist. ex rel.
Contreras, supra, 182 Cal.App.4th at pp. 442–444 [bus company provided school
district with student transportation, but did so with buses that did not meet the
contractually and legally required safety requirements].)
Sources and Authority
• “Under the CFCA, a vendor impliedly certifies compliance with its express
contractual requirements when it bills a public agency for providing goods or
services. Allegations that the implied certification was false and had a natural
tendency to influence the public agency’s decision to pay for the goods or
services are sufficient to survive a demurrer.” (San Francisco Unified School
Dist. ex rel. Contreras, supra, 182 Cal.App.4th at p. 441.)
• “[Defendant] initially argues its claims for payment were not false, because there
was no literally false information on the face of the invoices, which identify the
routes driven and the charges arising from each route. However, [defendant]
ultimately concedes that a section 12651, subdivision (a)(1) false claim need not
contain an expressly false statement to be actionable.” (San Francisco Unified
School Dist. ex rel. Contreras, supra, 182 Cal.App.4th at p. 448.)
• “[A]n alleged falsity satisfies the materiality requirement where it has the
‘ “ ‘natural tendency to influence agency action or is capable of influencing
agency action.’ ” [Citation.]’ ” (San Francisco Unified School Dist. ex rel.
Contreras, supra, 182 Cal.App.4th at p. 454.)
• “Plaintiffs further allege that [defendant]’s invoices impliedly certified
compliance with the material terms of the Contract, that the terms violated were
material, and that the District was unaware of the falsity of [defendant]’s implied
certification, resulting in a loss of District funds. Plaintiffs’ allegations are
adequate to survive a demurrer. Under the case law discussed above,
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[defendant]’s implied certification that it had satisfactorily performed its material
obligations under the Contract, including provisions designed to protect the
health and safety of the student population, had a ‘ “ ‘natural tendency’ ” ’ to
cause the District to make payments it would not have made had it been aware
of [defendant]’s noncompliance.” (San Francisco Unified School Dist. ex rel.
Contreras, supra, 182 Cal.App.4th at p. 455, internal citation omitted.)
• “Our conclusion that the allegations in the Complaint are sufficient to withstand
a demurrer does not mean that every breach of a contract term that is in some
sense ‘material’ necessarily satisfies the materiality requirement for a CFCA
claim. That is, a false implied certification relating to a ‘material’ contract term
may not always be ‘material’ to the government’s decision to pay a contractor.
Materiality is a mixed question of law and fact, and a showing in a motion for
summary judgment or at trial that the alleged breach would not have affected the
payment decision will defeat a CFCA claim.” (San Francisco Unified School
Dist. ex rel. Contreras, supra, 182 Cal.App.4th at p. 456, internal citation
omitted.)
• “The False Claims Act is not ‘an all-purpose antifraud statute,’ or a vehicle for
punishing garden-variety breaches of contract or regulatory violations. A
misrepresentation cannot be deemed material merely because the Government
designates compliance with a particular statutory, regulatory, or contractual
requirement as a condition of payment. Nor is it sufficient for a finding of
materiality that the Government would have the option to decline to pay if it
knew of the defendant’s noncompliance. Materiality, in addition, cannot be found
where noncompliance is minor or insubstantial.” (Universal Health Servs. v.
United States ex rel. Escobar (2016) 579 U.S. 176 [136 S.Ct. 1989, 2003, 195
L.Ed.2d 348] [construing similar Federal False Claims Act].)
• “What matters is not the label the Government attaches to a requirement, but
whether the defendant knowingly violated a requirement that the defendant
knows is material to the Government’s payment decision.” (Universal Health
Servs. v. United States ex rel. Escobar, supra, ___ U.S. at p. ___ [136 S.Ct. at p.
1994] [construing similar Federal False Claims Act].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 884
40 California Forms of Pleading and Practice, Ch. 468, Public Entities and Offıcers:
False Claims Actions, § 468.21 (Matthew Bender)
4802–4899. Reserved for Future Use
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REAL PROPERTY LAW
4900. Adverse Possession
4901. Prescriptive Easement
4902. Interference With Secondary Easement
4903–4909. Reserved for Future Use
4910. Violation of Homeowner Bill of Rights—Essential Factual Elements (Civ.
Code, § 2924.12(b))
4911–4919. Reserved for Future Use
4920. Wrongful Foreclosure—Essential Factual Elements
4921. Wrongful Foreclosure—Tender Excused
4922–4999. Reserved for Future Use
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4900. Adverse Possession
[Name of plaintiff] claims that [he/she/nonbinary pronoun] is the owner of
[briefly describe property] because [he/she/nonbinary pronoun] has obtained
title to the property by adverse possession. In order to establish adverse
possession, [name of plaintiff] must prove that for a period of five years,
all of the following were true:
1. That [name of plaintiff] exclusively possessed the property;
2. That [name of plaintiff]’s possession was continuous and
uninterrupted;
3. That [name of plaintiff]’s possession of the property was open and
easily observable, or was under circumstances that would give
reasonable notice to [name of defendant];
4. That [name of plaintiff] did not recognize, expressly or by
implication, that [name of defendant] had any ownership rights in
the land;
5. That [name of plaintiff] claimed the property as [his/her/nonbinary
pronoun] own under [either] [color of title/ [or] a claim of right];
and
6. That [name of plaintiff] timely paid all of the taxes assessed on the
property during the five-year period.
New November 2019
Directions for Use
Use this instruction for a claim that the plaintiff has obtained title of property by
adverse possession. A claimant for a prescriptive easement is entitled to a jury trial.
(Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 124 [21 Cal.Rptr.2d 127]; see
CACI No. 4901, Prescriptive Easement.) Presumably the same right would apply to
a claim for adverse possession. (See Kendrick v. Klein (1944) 65 Cal.App.2d 491,
496 [150 P.2d 955] [whether occupancy amounted to adverse possession is question
of fact].)
By statute, the taxes must have been paid by “the party or persons, their
predecessors and grantors.” (Code Civ. Proc., § 325(b).) Revise element 6 if the
taxes were paid by someone other than the plaintiff.
Sources and Authority
• Adverse Possession. Code of Civil Procedure section 325.
• Color of Title: Occupancy Under Written Instrument or Judgment. Code of Civil
Procedure section 322.
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• Occupancy Under Claim of Right. Code of Civil Procedure section 324.
• “There is a difference between a prescriptive use of land culminating in an
easement (i.e., an incorporeal interest) and adverse possession which creates a
change in title or ownership (i.e., a corporeal interest); the former deals with the
use of land, the other with possession; although the elements of each are similar,
the requirements of proof are materially different.” (Hansen v. Sandridge
Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032 [232 Cal.Rptr.3d 247], original
italics.)
• “In an action to quiet title based on adverse possession the burden is upon the
claimant to prove every necessary element: (1) Possession must be by actual
occupation under such circumstances as to constitute reasonable notice to the
owner. (2) It must be hostile to the owner’s title. (3) The holder must claim the
property as his own, under either color of title or claim of right. (4) Possession
must be continuous and uninterrupted for five years. (5) The holder must pay all
the taxes levied and assessed upon the property during the period.” (Dimmick v.
Dimmick (1962) 58 Cal.2d 417, 421 [24 Cal.Rptr. 856, 374 P.2d 824].)
• “To establish adverse possession, the claimant must prove: (1) possession under
claim of right or color of title; (2) actual, open, and notorious occupation of the
premises constituting reasonable notice to the true owner; (3) possession which
is adverse and hostile to the true owner; (4) continuous possession for at least
five years; and (5) payment of all taxes assessed against the property during the
five-year period.” (Hansen, supra, 22 Cal.App.5th at pp. 1032–1033.)
• “ ‘The elements necessary to establish title by adverse possession are tax
payment and open and notorious use or possession that is continuous and
uninterrupted, hostile to the true owner and under a claim of title,’ for five years.
[Citation.]” (McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, 152 [235
Cal.Rptr.3d 443].)
• “Claim of right does not require a belief or claim that the use is legally justified.
It simply means that the property was used without permission of the owner of
the land. As the American Law of Property states in the context of adverse
possession: ‘In most of the cases asserting [the requirement of a claim of right],
it means no more than that possession must be hostile, which in turn means only
that the owner has not expressly consented to it by lease or license or has not
been led into acquiescing in it by the denial of adverse claim on the part of the
possessor.’ One text proposes that because the phrase ‘ “claim of right” ’ has
caused so much trouble by suggesting the need for an intent or state of mind, it
would be better if the phrase and the notions it has spawned were forgotten.”
(Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 [17 Cal.Rptr.3d 135],
internal citations omitted.)
• “Because of the taxes element, it is more difficult to establish adverse possession
than a prescriptive easement. The reason for the difference in relative difficulty is
that a successful adverse possession claimant obtains ownership of the land (i.e.,
an estate), while a successful prescriptive easement claimant merely obtains the
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right to use the land in a particular way (i.e., an easement).” (Hansen, supra, 22
Cal.App.5th at p. 1033, original italics.)
• “ ‘The requirement of “hostility” . . . means, not that the parties must have a
dispute as to the title during the period of possession, but that the claimant’s
possession must be adverse to the record owner, “unaccompanied by any
recognition, express or inferable from the circumstances of the right in the
latter.” . . . “Title by adverse possession may be acquired through [sic] the
possession or use commenced under mistake.” ’ ” (Kunza v. Gaskell (1979) 91
Cal.App.3d 201, 210–211 [154 Cal.Rptr. 101].)
• “Adverse possession under [Code of Civil Procedure] section 322 is based on
what is commonly referred to as color of title. In order to establish a title under
this section it is necessary to show that the claimant or ‘those under whom he
claims, entered into possession of the property under claim of title, exclusive of
other right, founding such claim upon a written instrument, as being a
conveyance of the property in question, or upon the decree or judgment of a
competent court, and that there has been a continued occupation and possession
of the property included in such instrument, decree, or judgment, or of some part
of the property . . . for five years . . . .’ ” (Sorensen v. Costa (1948) 32 Cal.2d
453, 458 [196 P.2d 900].)
• “The requirements of possession are more stringent where the possessor acts
under mere claim of right than when he occupies under color of title. In the
former case, the land is deemed to have been possessed and occupied only
where it has (a) been protected by a substantial inclosure, or (b) usually
cultivated or improved.” (Brown v. Berman (1962) 203 Cal.App.2d 327, 329 [21
Cal.Rptr. 401], internal citations omitted; see Code Civ. Proc., § 325.)
• “It is settled too that the burden of proving all of the essential elements of
adverse possession rests upon the person relying thereon and it cannot be made
out by inference but only by clear and positive proof.” (Mosk v. Summerland
Spiritualist Asso. (1964) 225 Cal.App.2d 376, 382 [37 Cal.Rptr. 366].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 223 et seq.
10 California Real Estate Law and Practice, Ch. 360, Adverse Possession, § 360.20
(Matthew Bender)
2 California Forms of Pleading and Practice, Ch. 13, Adverse Possession, § 13.12
(Matthew Bender)
1 California Points and Authorities, Ch. 13, Adverse Possession, §§ 13.10, 13.20
(Matthew Bender)
6 Miller & Starr California Real Estate 4th (2015) § 18:1 et seq. (Ch. 18, Real
Property) (Thomson Reuters)
Smith-Chavez, et al., California Civil Practice, Real Property Litigation § 13:1 et
seq. (Thomson Reuters)
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4901. Prescriptive Easement
[Name of plaintiff] claims that [he/she/nonbinary pronoun] is entitled to a
nonexclusive use of [name of defendant]’s property for the purpose of
[describe use, e.g., reaching the access road]. This right is called a
prescriptive easement. In order to establish a prescriptive easement,
[name of plaintiff] must prove that for a period of five years all of the
following were true:
1. That [name of plaintiff] has been using [name of defendant]’s
property for the purpose of [e.g., reaching the access road];
2. That [name of plaintiff]’s use of the property was continuous and
uninterrupted;
3. That [name of plaintiff]’s use of [name of defendant]’s property was
open and easily observable, or was under circumstances that
would give reasonable notice to [name of defendant]; and
4. That [name of plaintiff] did not have [name of defendant]’s
permission to use the land.
New November 2019
Directions for Use
Use this instruction for a claim that the plaintiff has obtained a prescriptive
easement to use the defendant’s property. A claimant for a prescriptive easement is
entitled to a jury trial. (Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 124
[21 Cal.Rptr.2d 127].)
If the case involves periods of prescriptive use by successive users (i.e., “tacking”),
modify each element to account for the prior use by others. (Windsor Pacific LLC v.
Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 270 [152 Cal.Rptr.3d 518],
disapproved on other grounds in Mountain Air Enterprises, LLC v. Sundowner
Towers, LLC (2017) 3 Cal.5th 744, 756 fn. 3 [220 Cal.Rptr.3d 650, 398 P.3d 556].)
There is a split of authority over the standard of proof for a prescriptive easement.
(Compare Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074 [214
Cal.Rptr.3d 193] [preponderance of evidence] with Grant v. Ratliff (2008) 164
Cal.App.4th 1304, 1310 [79 Cal.Rptr.3d 902] [clear and convincing evidence].)
Sources and Authority
• “ ‘The elements necessary to establish a prescriptive easement are well settled.
The party claiming such an easement must show use of the property which has
been open, notorious, continuous and adverse for an uninterrupted period of five
years. [Citations.] Whether the elements of prescription are established is a
question of fact for the trial court [citation], and the findings of the court will
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not be disturbed where there is substantial evidence to support them.’ ‘[A]n
essential element necessary to the establishment of a prescriptive easement is
visible, open and notorious use sufficient to impart actual or constructive notice
of the use to the owner of the servient tenement. [Citation.]’ ” (McLear-Gary v.
Scott (2018) 25 Cal.App.5th 145, 159 [235 Cal.Rptr.3d 443], internal citation
omitted.)
• “Periods of prescriptive use by successive owners of the dominant estate can be
‘tacked’ together if the first three elements are satisfied.” (Windsor Pacific LLC,
supra, 213 Cal.App.4th at p. 270.)
• “[The] burden of proof as to each and all of the requisite elements to create a
prescriptive easement is upon the one asserting the claim. [Citations.] [Para. ]
. . . [The] existence or nonexistence of each of the requisite elements to create a
prescriptive easement is a question of fact for the court or jury.” (Twin Peaks
Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593 [181 Cal.Rptr. 25].)
• “[A] party seeking to establish a prescriptive easement has the burden of proof
by clear and convincing evidence. The higher standard of proof demonstrates
there is no policy favoring the establishment of prescriptive easements.” (Grant,
supra, 164 Cal.App.4th at p. 1310, internal citation omitted.)
• “[Plaintiff] correctly contends that the burden of proof of a prescriptive easement
or prescriptive termination of an easement is not clear and convincing evidence
. . . .” (Vieira Enterprises, Inc., supra, 8 Cal.App.5th at p. 1064.)
• “Whether the use is hostile or is merely a matter of neighborly accommodation,
however, is a question of fact to be determined in light of the surrounding
circumstances and the relationship between the parties.” (Warsaw v. Chicago
Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572 [199 Cal.Rptr. 773, 676 P.2d
584].)
• “ ‘The term “adverse” in this context is essentially synonymous with “hostile”
and “ ‘under claim of right.’ ” [Citations.] A claimant need not believe that his or
her use is legally justified or expressly claim a right of use for the use to be
adverse. [Citations.] Instead, a claimant’s use is adverse to the owner if the use
is made without any express or implied recognition of the owner’s property
rights. [Citations.] In other words, a claimant’s use is adverse to the owner if it
is wrongful and in defiance of the owner’s property rights. [Citation.]’ ”
(McBride v. Smith (2018) 18 Cal.App.5th 1160, 1181 [227 Cal.Rptr.3d 390].)
• “Claim of right does not require a belief or claim that the use is legally justified.
It simply means that the property was used without permission of the owner of
the land. As the American Law of Property states in the context of adverse
possession: ‘In most of the cases asserting [the requirement of a claim of right],
it means no more than that possession must be hostile, which in turn means only
that the owner has not expressly consented to it by lease or license or has not
been led into acquiescing in it by the denial of adverse claim on the part of the
possessor.’ One text proposes that because the phrase ‘ “claim of right” ’ has
caused so much trouble by suggesting the need for an intent or state of mind, it
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would be better if the phrase and the notions it has spawned were forgotten.”
(Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 [17 Cal.Rptr.3d 135],
internal citations omitted.)
• “Prescription cannot be gained if the use is permissive.” (Ranch at the Falls LLC
v. O’Neal (2019) 38 Cal.App.5th 155, 182 [250 Cal.Rptr.3d 585], citation
omitted.)
• “Use with the owner’s permission, however, is not adverse to the owner.
[Citations.] To be adverse to the owner a claimant’s use must give rise to a
cause of action by the owner against the claimant. [Citations.] This ensures that
a prescriptive easement can arise only if the owner had an opportunity to protect
his or her rights by taking legal action to prevent the wrongful use, yet failed to
do so. [Citations.]” (McBride, supra, 18 Cal.App.5th at p. 1181.)
• “Prescriptive rights ‘are limited to the uses which were made of the easements
during the prescriptive period. [Citations.] Therefore, no different or greater use
can be made of the easements without defendants’ consent.’ While the law
permits increases in the scope of use of an easement where ‘the change is one of
degree, not kind’, ‘an actual change in the physical objects passing over the
road’ constitutes a ‘substantial change in the nature of the use and a consequent
increase of burden upon the servient estate . . . more than a change in the
degree of use.’ ‘ “In ascertaining whether a particular use is permissible under an
easement appurtenant created by prescription there must be considered . . . the
needs which result from a normal evolution in the use of the dominant tenement
and the extent to which the satisfaction of those needs increases the burden on
the servient tenement.” ’ ‘[T]he question of whether there has been an
unreasonable use of an easement is one of fact . . . .’ ” (McLear-Gary, supra, 25
Cal.App.5th at p. 160, internal citations omitted.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 415 et seq.
10 California Real Estate Law and Practice, Ch. 343, Easements, § 343.15 (Matthew
Bender)
2 California Forms of Pleading and Practice, Ch. 13, Adverse Possession, § 13.13
(Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 240, Easements, § 240.16
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.180 (Matthew
Bender)
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4902. Interference With Secondary Easement
[Name of plaintiff] has an easement on the land of [name of defendant] for
the purpose of [specify, e.g., providing ingress and egress to the public
highway]. A person with an easement and the owner of land on which the
easement lies each have a duty not to unreasonably interfere with the
rights of the other to use and enjoy their respective rights. Neither party
can conduct activities or place obstructions on the property that
unreasonably interfere with the other party’s use of the property.
In this case, [name of plaintiff] claims that [name of defendant] [specify
interference, e.g., built a gate across the path of the easement]. You must
determine whether [name of defendant]’s [e.g., building of a gate]
unreasonably interfered with [name of plaintiff]’s use and enjoyment of
the easement.
New November 2019
Directions for Use
Give this instruction in a claim for breach of a secondary easement. A secondary
easement is the right to do the things that are necessary for the full enjoyment of
the easement itself. (Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419, 428 [165
Cal.Rptr.3d 658].)
This instruction is structured for an easement holder’s claim against the property
owner. A different instruction will be required if the owner is bringing a claim
against the easement holder for interference with the owner’s property rights.
Sources and Authority
• “A secondary easement can be the right to make ‘repairs, renewals and
replacements on the property that is servient to the easement’ ‘and to do such
things as are necessary to the exercise of the right’. . . . A right-of-way to pass
over the land of another carries with it ‘the implied right . . . to make such
changes in the surface of the land as are necessary to make it available for travel
in a convenient manner.’ ” (Dolnikov, supra, 222 Cal.App.4th at p. 428, internal
citations omitted.)
• “Incidental or secondary easement rights are limited by a rule of reason. ‘The
rights and duties between the owner of an easement and the owner of the
servient tenement . . . are correlative. Each is required to respect the rights of
the other. Neither party can conduct activities or place obstructions on the
property that unreasonably interfere with the other party’s use of the property. In
this respect, there are no absolute rules of conduct. The responsibility of each
party to the other and the “reasonableness” of use of the property depends on the
nature of the easement, its method of creation, and the facts and circumstances
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surrounding the transaction.’ ” (Dolnikov, supra, 222 Cal.App.4th at pp.
428–429.)
• “A servient tenement owner . . . is ‘ “entitled to make all uses of the land that
are not prohibited by the servitude and that do not interfere unreasonably with
the uses authorized by the easement . . . .” [Citation.] “[T]he servient owner
may use his property in any manner not inconsistent with the easement so long
as it does not unreasonably impede the dominant tenant in his rights.” [Citation.]
“Actions that make it more diffıcult to use an easement, that interfere with the
ability to maintain and repair improvements built for its enjoyment, or that
increase the risks attendant on exercise of rights created by the easement are
prohibited . . . unless justified by needs of the servient estate. In determining
whether the holder of the servient estate has unreasonably interfered with
exercise of an easement, the interests of the parties must be balanced to strike a
reasonable accommodation that maximizes overall utility to the extent consistent
with effectuating the purpose of the easement . . . and subject to any different
conclusion based on the intent or expectations of the parties . . . .” ’ ” (Inzana v.
Turlock Irrigation Dist. Bd. of Directors (2019) 35 Cal.App.5th 429, 445 [247
Cal.Rptr.3d 427], original italics.)
• “Whether a particular use of the land by the servient owner, or by someone
acting with his authorization, is an unreasonable interference is a question of fact
for the jury.” (Pasadena v. California-Michigan Land & Water Co. (1941) 17
Cal.2d 576, 579 [110 P.2d 983].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 422, 424,
429
10 California Real Estate Law and Practice, Ch. 343, Easements, § 343.16 (Matthew
Bender)
2 California Forms of Pleading and Practice, Ch. 13, Adverse Possession, § 13.13
(Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 240, Easements, § 240.15
(Matthew Bender)
4903–4909. Reserved for Future Use
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4910. Violation of Homeowner Bill of Rights—Essential Factual
Elements (Civ. Code, § 2924.12(b))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] has been
harmed because of [name of defendant]’s [specify, e.g., foreclosure sale of
[his/her/nonbinary pronoun] home]. To establish this claim, [name of
plaintiff] must prove:
1. That [specify one or more violations of the Homeowner Bill of Rights
in Civil Code sections 2923.55, 2923.6, 2923.7, 2924.9, 2924.10,
2924.11, or 2924.17];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s actions were a substantial factor in
causing [name of plaintiff]’s harm.
The violation claimed by [name of plaintiff] must have been “material,”
which means that it was significant or important.
New November 2019
Directions for Use
Give this instruction in a case claiming a violation of the Homeowner Bill of Rights
(the HBOR). (Civ. Code, §§ 2920.5, 2923.4–2923.7, 2924, 2924.9–2924.12, 2924.15,
2924.17–2924.20). The HBOR provides for a homeowner’s civil action for actual
economic damages against a mortgage servicer, mortgagee, trustee, beneficiary, or
authorized agent for a material violation of specified provisions of the HBOR. (Civ.
Code, § 2924.12(b); see Civ. Code, §§ 2923.55, 2923.6, 2923.7, 2924.9, 2924.10,
2924.11, 2924.17.) In element 1, insert the specific violation(s) alleged.
For a violation that is intentional or reckless, or resulted from willful misconduct,
there is a penalty of the greater of treble actual damages or $50,000. (Civ. Code,
§ 2924.12(b).) These terms are not further defined in the HBOR. If the plaintiff
seeks a penalty, an additional element should be added to require an intentional or
reckless violation or willful misconduct.
Sources and Authority
• Action for Damages Under Homeowner Bill of Rights. Civil Code section
2924.12(b).
• Preforeclosure Requirements. Civil Code section 2923.55.
• “Dual Tracking” Prohibited. Civil Code section 2923.6.
• Single Point of Contact Required. Civil Code section 2923.7.
• Written Notice to Borrower on Recording of Notice of Default. Civil Code
section 2924.9.
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• Written Acknowledgment of Receipt of Loan Modification Application. Civil
Code section 2924.10.
• Approved Foreclosure Prevention Alternative; Prohibition Against Recording
Notice of Default or Sale or Conducting Trustee Sale; Rescission or
Cancellation. Civil Code section 2924.11.
• Recording Inaccurate Title Document. Civil Code section 2924.17.
• “The Homeowner Bill of Rights (Civ. Code, §§ 2920.5, 2923.4–2923.7, 2924,
2924.9–2924.12, 2924.15, 2924.17–2924.20) (HBOR), effective January 1, 2013,
was enacted ‘to ensure that, as part of the nonjudicial foreclosure process,
borrowers are considered for, and have a meaningful opportunity to obtain,
available loss mitigation options, if any, offered by or through the borrower’s
mortgage servicer, such as loan modifications or other alternatives to
foreclosure.’ (§ 2923.4, subd. (a).) Among other things, HBOR prohibits ‘dual
tracking,’ which occurs when a bank forecloses on a loan while negotiating with
the borrower to avoid foreclosure. (See § 2923.6.) HBOR provides for injunctive
relief for statutory violations that occur prior to foreclosure (§ 2924.12, subd.
(a)), and monetary damages when the borrower seeks relief for violations after
the foreclosure sale has occurred (§ 2924.12, subd. (b)).” (Valbuena v. Ocwen
Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1272 [188 Cal.Rptr.3d 668].)
• “A material violation found by the court to be intentional or reckless, or to result
from willful misconduct, may result in a trebling of actual damages or statutory
damages of $50,000. ‘A court may award a prevailing borrower reasonable
attorney’s fees and costs in an action brought pursuant to this section.’ ”
(Valbuena, supra, 237 Cal.App.4th at p. 1273, internal citation omitted.)
• “Nothing in the language of HBOR suggests that a borrower must tender the
loan balance before filing suit based on a violation of the requirements of the
law. Indeed, such a requirement would completely eviscerate the remedial
provisions of the statute.” (Valbuena, supra, 237 Cal.App.4th at p. 1273.)
• “We disagree with the [plaintiffs’] assertion that ‘contacts’ between the lender or
its agent and the borrow [sic] must be initiated by the lender or its agent in
order to comply with former section 2923.55, and that any telephone calls
initiated by the [plaintiffs], and not by [the loan servicer], in which the
[plaintiffs’] financial situation and alternatives to foreclosure were discussed,
cannot constitute compliance with former section 2923.55. The language of the
statute does not require that a lender initiate the contact; rather, the statute
requires only that the lender make contact in some manner and provide the
borrower with an opportunity to discuss the borrower’s financial situation and
possible options for avoiding foreclosure.” (Schmidt v. Citibank, N.A. (2018) 28
Cal.App.5th 1109, 1122 [239 Cal.Rptr.3d 648], original italics.)
• “We conclude that a borrower who obtains a TRO enjoining the trustee’s sale of
his or her home is a ‘prevailing borrower’ within the meaning of section
2924.12, subdivision (h), and therefore may recover attorney fees and costs. The
text of the statute refers to ‘injunctive relief,’ which plainly includes a TRO. The
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statute makes no exception for temporary injunctions. Thus, under the plain
language of the statute, a trial court is authorized, in its discretion, to award
attorney fees and costs to such a borrower.” (Bustos v. Wells Fargo Bank, N.A.
(2019) 39 Cal.App.5th 369, 380 [252 Cal.Rptr.3d 172].)
Secondary Sources
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 6-I,
Real Property Foreclosures and Antideficiency Laws, ¶ 6:511.1 et seq. (The Rutter
Group)
5 California Real Estate Law and Practice, Ch. 123, Nonjudicial Disclosure,
§ 123.08C (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 555, Trust Deeds and Real
Property Mortgages, § 555.51C (Matthew Bender)
10 California Legal Forms Transaction Guide, Ch. 25D, Foreclosure, § 25D.34
(Matthew Bender)
4911–4919. Reserved for Future Use
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4920. Wrongful Foreclosure—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongly foreclosed on
[name of plaintiff]’s [home/specify other real property]. In order to
establish a wrongful foreclosure, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] caused a foreclosure sale of [name of
plaintiff]’s [home/specify other real property] under a power of sale
in a [mortgage/deed of trust];
2. That this sale was wrongful because [specify reason(s) supporting
illegality, fraud, or willful oppression];
3. That [name of plaintiff] [tendered all amounts that were due under
the loan secured by the [mortgage/deed of trust], but [name of
defendant] refused the tender]/[was excused from tendering all
amounts that were due under loan secured by the [mortgage/deed
of trust]];
4. [That [name of plaintiff] was not materially in breach of any other
condition and had not failed to perform any other material
requirement of the loan agreement that would otherwise justify
the foreclosure;]
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s actions were a substantial factor in
causing [name of plaintiff]’s harm.
New May 2020
Directions for Use
Use this instruction for a claim for wrongful foreclosure.
For element 3, use the optional language depending on the circumstances. If plaintiff
claims that tender is excused, give CACI No. 4921, Wrongful Foreclosure—Tender
Excused.
There is a split in authority as to whether the plaintiff must prove element 4.
(Compare Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 525 [238 Cal.Rptr.3d
528] [stating the elements of a wrongful foreclosure claim without element 4] with
Majd v. Bank of America, N.A. (2015) 243 Cal.App.4th 1293, 1306–1307 [197
Cal.Rptr.3d 151] [including element 4 as a basic element of a wrongful foreclosure
claim].) If the defendant does not claim that the plaintiff is in material breach of
some loan condition, however, omit element 4.
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Sources and Authority
• Curing Default. Civil Code section 2924c.
• “The elements of the tort of wrongful foreclosure are: ‘ “(1) the trustee or
mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real
property pursuant to a power of sale in a mortgage or deed of trust; (2) the party
attacking the sale (usually but not always the trustor or mortgagor) was
prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges
the sale, the trustor or mortgagor tendered the amount of the secured
indebtedness or was excused from tendering” ’; and (4) ‘ “no breach of condition
or failure of performance existed on the mortgagor’s or trustor’s part which
would have authorized the foreclosure or exercise of the power of sale.” ’ ”
(Majd, supra, 243 Cal.App.4th at pp. 1306–1307 [197 Cal.Rptr.3d 151].)
• “ ‘The basic elements of a tort cause of action for wrongful foreclosure track the
elements of an equitable cause of action to set aside a foreclosure sale. They are:
“(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully
oppressive sale of real property pursuant to a power of sale in a mortgage or
deed of trust; (2) the party attacking the sale (usually but not always the trustor
or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or
mortgagor challenges the sale, the trustor or mortgagor tendered the amount of
the secured indebtedness or was excused from tendering.” ’ ” (Daniels v. Select
Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1184–1185 [201
Cal.Rptr.3d 390].)
• “Justifications for setting aside a trustee’s sale from the reported cases, which
satisfy the first element, include the trustee’s or the beneficiary’s failure to
comply with the statutory procedural requirements for the notice or conduct of
the sale. Other grounds include proof that (1) the trustee did not have the power
to foreclose; (2) the trustor was not in default, no breach had occurred, or the
lender had waived the breach; or (3) the deed of trust was void.” (Lona v.
Citibank, N.A. (2011) 202 Cal.App.4th 89, 104–105 [134 Cal.Rptr.3d 622],
internal citations omitted.)
• “Wrongful foreclosure is a common law tort claim.” (Turner, supra, 27
Cal.App.5th at p. 525.)
• “[A] trustee or mortgagee may be liable to the trustor or mortgagor for damages
sustained where there has been an illegal, fraudulent or wil[l]fully oppressive
sale of property under a power of sale contained in a mortgage or deed of trust.
[Citations.] This rule of liability is also applicable in California, we believe,
upon the basic principle of tort liability declared in the Civil Code that every
person is bound by law not to injure the person or property of another or
infringe on any of his rights.” (Miles v. Deutsche Bank National Trust Co.
(2015) 236 Cal.App.4th 394, 408 [186 Cal.Rptr.3d 625].)
• “To successfully challenge a foreclosure sale based on a procedural irregularity,
the plaintiff must show both that there was a failure to comply with the
procedural requirements for the foreclosure sale and that the irregularity
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prejudiced the plaintiff.” (Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32
Cal.App.5th 943, 950 [244 Cal.Rptr.3d 372].)
• “[M]ere technical violations of the foreclosure process will not give rise to a tort
claim; the foreclosure must have been entirely unauthorized on the facts of the
case. This is a sound addition.” (Miles, supra, 236 Cal.App.4th at p. 409.)
• “ ‘[O]nly the entity currently entitled to enforce a debt may foreclose on the
mortgage or deed of trust securing that debt . . . .’ ‘It is no mere “procedural
nicety,” from a contractual point of view, to insist that only those with authority
to foreclose on a borrower be permitted to do so.’ ” (Sciarratta v. U.S. Bank
National Assn. (2016) 247 Cal.App.4th 552, 562 [202 Cal.Rptr.3d 219], internal
citation omitted.)
• “[W]here a mortgagee or trustee makes an unauthorized sale under a power of
sale he and his principal are liable to the mortgagor for the value of the property
at the time of the sale in excess of the mortgages and liens against said
property.” (Miles, supra, 236 Cal.App.4th at p. 409.)
• “[L]ost equity in the property . . . is a recoverable item of damages. It is not,
however, the only recoverable item of damages. Wrongfully foreclosing on
someone’s home is likely to cause other sorts of damages, such as moving
expenses, lost rental income (which plaintiff claims here), and damage to credit.
It may also result in emotional distress (which plaintiff also claims here). As is
the case in a wrongful eviction cause of action, ‘ “The recovery includes all
consequential damages occasioned by the wrongful eviction (personal injury,
including infliction of emotional distress, and property damage) . . . and, upon a
proper showing . . . , punitive damages.” ’ ” (Miles, supra, 236 Cal.App.4th at p.
409.)
• “Civil Code section 2924c thus limits the beneficiary’s contractual power of sale
by giving the trustor a right to cure a default and reinstate the loan within the
stated time, even if the beneficiary does not voluntarily agree. ‘ “The law does
not require plaintiff to tender the purchase price to a trustee who has no right to
sell the property at all.” ’ To adequately plead a cause of action for wrongful
foreclosure, all plaintiffs had to allege was that they met their statutory
obligation by timely tendering the amount required by Civil Code section 2924c
to stop the foreclosure sale, but [defendant] refused that tender and thus allowed
the foreclosure sale to go forward when [defendant] should have accepted their
tender and canceled the sale. Plaintiffs did so. If [defendant] had accepted the
tender, which [defendant’s employee] stated was sufficient to cure the default, a
rescission of the foreclosure sale and reinstatement of the loan was mandatory,
and the subsequent sale was without legal basis and void . . . .” (Turner, supra,
27 Cal.App.5th at pp. 530–531, original italics, internal citations omitted.)
• “ ‘[A] tender is an offer of performance . . . .’ Subdivision (a)(1) of Civil Code
section 2924c provides in pertinent part that ‘[w]henever all or a portion of the
principal sum of any obligation secured by deed of trust . . . has . . . been
declared due by reason of default in payment of interest or of any installment of
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principal . . . , the trustor . . . may pay to the beneficiary . . . the entire
amount due, at the time payment is tendered . . . other than the portion of
principal as would not then be due had no default occurred, and thereby cure the
default theretofore existing, and thereupon, all proceedings theretofore had or
instituted shall be dismissed or discontinued and the obligation and deed of trust
. . . shall be reinstated and shall be and remain in force and effect . . . .’ Here,
for purposes of Civil Code section 2924c, [plaintiff] effectively tendered
payment of the amount then due when he told [an agent of defendant] that he
would like to pay off the entire amount of the default. Actual submission of a
payment was not required.” (Turner, supra, 27 Cal.App.5th pp. 531–532.)
• “A tender is an unconditional offer to perform an order to extinguish an
obligation.” (Crossroads Investors, L.P. v. Federal National Mortgage
Association (2017) 13 Cal.App.5th 757, 783 [222 Cal.Rptr.3d 1].)
• “The third element—tender—requires the trustor to make ‘an offer to pay the
full amount of the debt for which the property was security.’ ” (Ram v. OneWest
Bank, FSB (2015) 234 Cal.App.4th 1, 11 [183 Cal.Rptr.3d 638].)
• “ ‘A full tender must be made to set aside a foreclosure sale, based on equitable
principles.’ Courts, however, have not required tender when the lender has not
yet foreclosed and has allegedly violated laws related to avoiding the necessity
for a foreclosure.” (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211
Cal.App.4th 1250, 1280 [150 Cal.Rptr.3d 673], original italics.)
• “Pfeifer[, supra, 211 Cal.App.4th 1250] and the other tender cases are
inapplicable here because [plaintiff] has not sued to set aside or prevent a
foreclosure sale. In the sixth cause of action, he sought to quiet title to the
property, which he cannot do without paying the outstanding indebtedness.”
(Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 87 [163
Cal.Rptr.3d 804].)
• “Here, neither the deed of trust nor the governing statutes expressly create a duty
on the part of [defendant] to verify that the beneficiary received a valid
assignment of the loan or to verify the authority of the person who signed the
substitution of trustee. [Plaintiff] has not cited, and we have not discovered, any
authority holding a trustee liable for wrongful foreclosure or any other cause of
action based on similar purported failures to investigate. To the contrary, the
trustee generally ‘has no duty to take any action except on the express
instructions of the parties or as expressly provided in the deed of trust and the
applicable statutes.’ ” (Citrus El Dorado, LLC, supra, 32 Cal.App.5th at pp.
948–949.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Secured Transactions in Real
Property, § 153 et seq.
5 California Real Estate Law and Practice, Ch. 123, Nonjudicial Foreclosure,
§ 123.14 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 555, Trust Deeds and Real
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Property Mortgages, § 555.54 (Matthew Bender)
23 California Points and Authorities, Ch. 230, Trust Deeds and Real Property
Mortgages, § 230.72 (Matthew Bender)
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4921. Wrongful Foreclosure—Tender Excused
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was not
required to tender all amounts that were due under loan secured by the
[mortgage/deed of trust]. Tender is excused if [insert one or more of the
following]:
a. The underlying debt was not valid because [specify reason(s)];
b. [Name of plaintiff] has a claim for money against [name of
defendant] and the claim, if valid, would completely offset the
amount due on the loan secured by the [mortgage/deed of trust];
c. It would be unfair to require tender of [name of plaintiff] because
[specify reason(s)];
d. The trust deed is void on its face because [specify reason(s)];
e. The loan was illegal or made in violation of [the loan agreement/
an agreement to modify the loan] because [specify reason(s)]; or
f. [Name of plaintiff] was not in default and there is no basis for a
foreclosure.
New May 2020
Directions for Use
Give this instruction if the plaintiff alleges that tender is excused in element 3 of
CACI No. 4920, Wrongful Foreclosure—Essential Factual Elements.
Sources and Authority
• “Courts have applied equitable exceptions to the tender rule, such as: ‘(1) where
the borrower’s action attacks the validity of the underlying debt, tender is not
required since it would constitute affirmation of the debt; (2) when the person
who seeks to set aside the trustee’s sale has a counter-claim or set-off against the
beneficiary, the tender and the counter-claim offset each other and if the offset is
greater than or equal to the amount due, tender is not required; (3) a tender may
not be required if it would be ‘inequitable’ to impose such a condition on the
party challenging the sale; . . . (4) tender is not required where the trustor’s
attack is based not on principles of equity but on the basis that the trustee’s deed
is void on its face (such as where the original trustee had been substituted out
before the sale occurred)[;] [(5)] when the loan was made in violation of
substantive law, or in breach of the loan agreement or an agreement to modify
the loan[;] [and (6)] when the borrower is not in default and there is no basis for
the foreclosure . . . .’ ” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516,
525–526 [238 Cal.Rptr.3d 528].)
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• “Because [plaintiff] alleges a void as distinguished from a voidable assignment,
she is excused from having to allege tender as an element of her wrongful
foreclosure cause of action.” (Sciarratta v. U.S. Bank National Association
(2016) 247 Cal.App.4th 552, 565 fn. 10 [202 Cal.Rptr.3d 219].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Secured Transactions in Real
Property, § 153 et seq.
5 California Real Estate Law and Practice, Ch. 123, Nonjudicial Foreclosure,
§ 123.14 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 555, Trust Deeds and Real
Property Mortgages, § 555.54 (Matthew Bender)
23 California Points and Authorities, Ch. 230, Trust Deeds and Real Property
Mortgages, § 230.72 (Matthew Bender)
4922–4999. Reserved for Future Use
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CONCLUDING INSTRUCTIONS
5000. Duties of the Judge and Jury
5001. Insurance
5002. Evidence
5003. Witnesses
5004. Service Provider for Juror With Disability
5005. Multiple Parties
5006. Nonperson Party
5007. Removal of Claims or Parties and Remaining Claims and Parties
5008. Duty to Abide by Translation Provided in Court
5009. Predeliberation Instructions
5010. Taking Notes During the Trial
5011. Reading Back of Trial Testimony in Jury Room
5012. Introduction to Special Verdict Form
5013. Deadlocked Jury Admonition
5014. Substitution of Alternate Juror
5015. Instruction to Alternate Jurors on Submission of Case to Jury
5016. Judge’s Commenting on Evidence
5017. Polling the Jury
5018. Audio or Video Recording and Transcription
5019. Questions From Jurors
5020. Demonstrative Evidence
5021. Electronic Evidence
5022. Introduction to General Verdict Form
5023–5089. Reserved for Future Use
5090. Final Instruction on Discharge of Jury
5091–5099. Reserved for Future Use
VF-5000. General Verdict Form—Single Plaintiff—Single Defendant—Single
Cause of Action
VF-5001. General Verdict Form—Single Plaintiff—Single Defendant—Multiple
Causes of Action
VF-5002–VF-5099. Reserved for Future Use
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5000. Duties of the Judge and Jury
Members of the jury, you have now heard all the evidence [and the
closing arguments of the attorneys]. [The attorneys will have one last
chance to talk to you in closing argument. But before they do, it] [It] is
my duty to instruct you on the law that applies to this case. You must
follow these instructions [as well as those that I previously gave you].
You will have a copy of my instructions with you when you go to the
jury room to deliberate. [I have provided each of you with your own
copy of the instructions.] [I will display each instruction on the screen.]
You must decide what the facts are. You must consider all the evidence
and then decide what you think happened. You must decide the facts
based on the evidence admitted in this trial.
Do not allow anything that happens outside this courtroom to affect your
decision. Do not talk about this case or the people involved in it with
anyone, including family and persons living in your household, friends
and coworkers, spiritual leaders, advisors, or therapists. Do not do any
research on your own or as a group. Do not use dictionaries or other
reference materials.
These prohibitions on communications and research extend to all forms
of electronic communications. Do not use any electronic devices or
media, such as a cell phone or smart phone, PDA, computer, tablet
device, the Internet, any Internet service, any text or instant-messaging
service, any Internet chat room, blog, or website, including social
networking websites or online diaries, to send or receive any information
to or from anyone about this case or your experience as a juror until
after you have been discharged from your jury duty.
Do not investigate the case or conduct any experiments. Do not contact
anyone to assist you, such as a family accountant, doctor, or lawyer. Do
not visit or view the scene of any event involved in this case. If you
happen to pass by the scene, do not stop or investigate. All jurors must
see or hear the same evidence at the same time. [Do not read, listen to,
or watch any news accounts of this trial.] You must not let bias,
sympathy, prejudice, or public opinion influence your decision.
[If you violate any of these prohibitions on communications and
research, including prohibitions on electronic communications and
research, you may be held in contempt of court or face other sanctions.
That means that you may have to serve time in jail, pay a fine, or face
other punishment for that violation.]
I will now tell you the law that you must follow to reach your verdict.
You must follow the law exactly as I give it to you, even if you disagree
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with it. If the attorneys [have said/say] anything different about what the
law means, you must follow what I say.
In reaching your verdict, do not guess what I think your verdict should
be from something I may have said or done.
Pay careful attention to all the instructions that I give you. All the
instructions are important because together they state the law that you
will use in this case. You must consider all of the instructions together.
After you have decided what the facts are, you may find that some
instructions do not apply. In that case, follow the instructions that do
apply and use them together with the facts to reach your verdict.
If I repeat any ideas or rules of law during my instructions, that does
not mean that these ideas or rules are more important than the others.
In addition, the order in which the instructions are given does not make
any difference.
[Most of the instructions are typed. However, some handwritten or
typewritten words may have been added, and some words may have
been deleted. Do not discuss or consider why words may have been
added or deleted. Please treat all the words the same, no matter what
their format. Simply accept the instruction in its final form.]
New September 2003; Revised April 2004, October 2004, February 2005, December
2009, June 2011, December 2013
Directions for Use
As indicated by the brackets in the first paragraph, this instruction can be read either
before or after closing arguments. The advisory committee recommends that this
instruction be read to the jury before reading instructions on the substantive law.
Sources and Authority
• Charge to the Jury. Code of Civil Procedure section 608.
• Contempt of Court for Juror Misconduct. Code of Civil Procedure section
1209(a)(6).
• Jury as Trier of Fact. Evidence Code section 312(a).
• An instruction to disregard any appearance of bias on the part of the judge is
proper. (Gist v. French (1955) 136 Cal.App.2d 247, 257–259 [288 P.2d 1003],
disapproved on other grounds in Deshotel v. Atchinson, Topeka & Santa Fe Ry.
Co. (1958) 50 Cal.2d 664, 667 [328 P.2d 449] and West v. City of San Diego
(1960) 54 Cal.2d 469, 478–479 [6 Cal.Rptr. 289, 353 P.2d 929].)
• Jurors must avoid bias: “ ‘The right to unbiased and unprejudiced jurors is an
inseparable and inalienable part of the right to trial by jury guaranteed by the
constitution.’ ” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98,
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110 [95 Cal.Rptr. 516, 485 P.2d 1132], internal citations omitted.) Evidence of
racial prejudice and bias on the part of jurors amounts to misconduct and may
constitute grounds for ordering a new trial. (Ibid.)
• An instruction to consider all the instructions together can help avoid
instructional errors of conflict, omission, and undue emphasis. (Escamilla v.
Marshburn Brothers (1975) 48 Cal.App.3d 472, 484 [121 Cal.Rptr. 891].)
• Providing an instruction stating that, depending on what the jury finds to be the
facts, some of the instructions may not apply can help avoid reversal on the
grounds of misleading jury instructions. (See Rodgers v. Kemper Construction
Co. (1975) 50 Cal.App.3d 608, 629–630 [124 Cal.Rptr. 143].)
• “[T]he jury was charged that (1) no undue emphasis was intended by repetition
of any rule, direction or idea; (2) instructions on the measure of damages should
not be interpreted to mean that liability must be found; and (3) the judge did not
intend to intimate how any issue should be decided and if any juror believed
such intimation was present such should be disregarded. Of course such
admonitions will not salvage an inherently one-sided charge although the giving
of such instructions should be considered in weighing the net effect of the
charge.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 57 [118
Cal.Rptr. 184, 529 P.2d 608].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 281
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 14-D,
Preparing Jury Instructions, ¶¶ 14:151, 14:190 (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.20 (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.21
(Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 16, Jury Instructions, 16.19 et seq.
California Judges Benchbook: Civil Proceedings—Trial §§ 12.6, 13.27 (Cal CJER
2019)
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5001. Insurance
You must not consider whether any of the parties in this case has
insurance. The presence or absence of insurance is totally irrelevant. You
must decide this case based only on the law and the evidence.
New September 2003; Revised April 2004, May 2019, November 2019
Directions for Use
If this instruction is used, the advisory committee recommends that it be read to the
jury before reading instructions on the substantive law.
By statute, evidence of a defendant’s insurance coverage is inadmissible to prove
liability. (Evid. Code, § 1155.) If evidence of insurance has been admitted for some
other reason, (1) this instruction may need to be modified to clarify that insurance
may not be considered for purposes of determining liability; and (2) a limiting
instruction should be given advising the jury to consider the evidence only for the
purpose for which it was admitted.
Sources and Authority
• Evidence of Insurance Inadmissible to Prove Liability. Evidence Code section
1155.
• “ ‘The evidence [of liability insurance] is regarded as both irrelevant and
prejudicial to the defendant. Hence, not only is it subject to objection and
exclusion, but any attempt to inject it by question, suggestion or argument is
considered misconduct of counsel, and is often held reversible error.
[Citations.]’ ” (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 469 [130 Cal.Rptr.
786].)
• “Evidence of a defendant’s insurance coverage ordinarily is not admissible to
prove the defendant’s negligence or other wrongdoing.” (Blake v. E. Thompson
Petroleum Repair Co. (1985) 170 Cal.App.3d 823, 830 [216 Cal.Rptr. 568],
original italics.)
• “[E]vidence of a plaintiff’s insurance coverage is not admissible for the purpose
of mitigating the damages the plaintiff would otherwise recover from the
tortfeasor. This is the ‘collateral source rule.’ ” (Blake, supra, 170 Cal.App.3d at
p. 830; see Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1,
16–18 [84 Cal.Rptr. 173, 465 P.2d 61].)
• “Both of the foregoing principles are subject to the qualification that where the
topic of insurance coverage is coupled with other relevant evidence, that topic
may be admitted along with such other evidence. ‘[para. ] It has always been the
rule that the existence of insurance may properly be referred to in a case if the
evidence is otherwise admissible.’ The trial court must then determine, pursuant
to Evidence Code section 352, whether the probative value of the other evidence
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outweighs the prejudicial effect of the mention of insurance.” (Blake, supra, 170
Cal.App.3d at p. 831, internal citation omitted.)
• “[T]he trial court did not abuse its discretion by excluding evidence of
[plaintiff]’s insured [health care coverage] under Evidence Code section 352.
[Plaintiff] had the right to treat outside his plan. Evidence of his insurance would
have confused the issues or misled and prejudiced the jury.” (Pebley v. Santa
Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1278 [232 Cal.Rptr.3d 404].)
• “[M]ost of these references to Kaiser and Medicare, as well as the single
reference to Social Security, merely provided context and background
information on [plaintiff]’s past treatment at Kaiser and on some aspects of
[defendant]’s experts’ calculation of past and future reasonable medical expenses.
They were helpful and even necessary to the jury’s understanding of the issues.
[Plaintiff] has not shown the court abused its discretion in admitting these
references to assist the jurys understanding of the facts.” (Stokes v. Muschinske
(2019) 34 Cal.App.5th 45, 58 [245 Cal.Rptr.3d 764].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 217 et seq.
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.32–34.36
California Practice Guide: Civil Trials and Evidence § 5:371
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, §§ 50.20, 50.32 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.68 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 16, Jury Instructions, 16.06
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.26
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5002. Evidence
You must decide what the facts are in this case only from the evidence
you have seen or heard during the trial, including any exhibits that I
admit into evidence. Sworn testimony, documents, or anything else may
be admitted into evidence. You may not consider as evidence anything
that you saw or heard when court was not in session, even something
done or said by one of the parties, attorneys, or witnesses.
What the attorneys say during the trial is not evidence. In their opening
statements and closing arguments, the attorneys talk to you about the
law and the evidence. What the lawyers say may help you understand
the law and the evidence, but their statements and arguments are not
evidence.
The attorneys’ questions are not evidence. Only the witnesses’ answers
are evidence. You should not think that something is true just because an
attorney’s question suggested that it was true. [However, the attorneys
for both sides have agreed that certain facts are true. This agreement is
called a stipulation. No other proof is needed and you must accept those
facts as true in this trial.]
Each side had the right to object to evidence offered by the other side. If
I sustained an objection to a question, ignore the question and do not
guess as to why I sustained the objection. If the witness did not answer,
you must not guess what he or she might have said. If the witness
already answered, you must ignore the answer.
[During the trial I granted a motion to strike testimony that you heard.
You must totally disregard that testimony. You must treat it as though it
did not exist.]
New September 2003; Revised April 2004, February 2007, December 2012, June
2014
Directions for Use
The advisory committee recommends that this instruction be read to the jury before
reading instructions on the substantive law. For a similar instruction to be given
before trial, see CACI No. 106, Evidence.
Include the bracketed language in the third paragraph if the parties have entered into
any stipulations of fact.
Read the last bracketed paragraph if a motion to strike testimony was granted during
the trial.
Sources and Authority
• “Evidence” Defined. Evidence Code section 140.
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• Jury to Decide Questions of Fact. Evidence Code section 312.
• Miscarriage of Justice. Evidence Code section 353.
• “Unless the trial court, in its discretion, permits a party to withdraw from a
stipulation, it is conclusive upon the parties, and the truth of the facts contained
therein cannot be contradicted.” (Palmer v. City of Long Beach (1948) 33 Cal.2d
134, 141–142 [199 P.2d 952].)
• “[A]ttempts to suggest matters of an evidentiary nature to a jury other than by
the legitimate introduction into evidence is misconduct whether by questions on
cross-examination, argument or other means.” (Smith v. Covell (1980) 100
Cal.App.3d 947, 960 [161 Cal.Rptr. 377].)
• “The right to object on appeal to misconduct or improper argument, even when
prejudicial, is generally waived in the absence of a proper objection and request
the jury be admonished.” (Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 427 [94
Cal.Rptr. 49]; Horn v. Atchison, Topeka & Santa Fe Ry. Co. (1964) 61 Cal.2d
602, 610 [39 Cal.Rptr. 721, 394 P.2d 561].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 34 et seq.
7 Witkin, California Procedure (5th ed. 2008) Trial, § 272
Cotchett, California Courtroom Evidence, § 2.09 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.61 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 2.37, 2.38, 11.9, 11.35
(Cal CJER 2019)
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5003. Witnesses
A witness is a person who has knowledge related to this case. You will
have to decide whether you believe each witness and how important each
witness’s testimony is to the case. You may believe all, part, or none of a
witness’s testimony.
In deciding whether to believe a witness’s testimony, you may consider,
among other factors, the following:
(a) How well did the witness see, hear, or otherwise sense what the
witness described in court?
(b) How well did the witness remember and describe what
happened?
(c) How did the witness look, act, and speak while testifying?
(d) Did the witness have any reason to say something that was not
true? For example, did the witness show any bias or prejudice or
have a personal relationship with any of the parties involved in
the case or have a personal stake in how this case is decided?
(e) What was the witness’s attitude toward this case or about giving
testimony?
Sometimes a witness may say something that is not consistent with
something else the witness said. Sometimes different witnesses will give
different versions of what happened. People often forget things or make
mistakes in what they remember. Also, two people may see the same
event but remember it differently. You may consider these differences,
but do not decide that testimony is untrue just because it differs from
other testimony.
However, if you decide that a witness did not tell the truth about
something important, you may choose not to believe anything that
witness said. On the other hand, if you think the witness did not tell the
truth about some things but told the truth about others, you may accept
the part you think is true and ignore the rest.
Do not make any decision simply because there were more witnesses on
one side than on the other. If you believe it is true, the testimony of a
single witness is enough to prove a fact.
You must not be biased in favor of or against any witness because of the
witness’s disability, gender, race, religion, ethnicity, sexual orientation,
age, national origin, [or] socioeconomic status[, or [insert any other
impermissible form of bias]].
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CACI No. 5003 CONCLUDING INSTRUCTIONS
New September 2003; Revised April 2004, April 2007, December 2012, December
2016, May 2020
Directions for Use
This instruction may be given as either an introductory instruction before trial (see
CACI No. 107) or as a concluding instruction.
The advisory committee recommends that this instruction be read to the jury before
reading instructions on the substantive law.
In the last paragraph, the court may delete inapplicable categories of potential jury
bias.
Sources and Authority
• Role of Jury. Evidence Code section 312.
• Considerations for Evaluating the Credibility of Witnesses. Evidence Code
section 780.
• Direct Evidence of Single Witness Sufficient. Evidence Code section 411.
• The willfully false witness instruction was formerly codified at Code of Civil
Procedure section 2061. This statute was repealed in 1965 to avoid giving undue
emphasis to this rule compared to other common-law rules. Refusal to give an
instruction on this point is not error: “It should certainly not be deemed of vital
importance to tell the ordinary man of the world that he should distrust the
statements of a witness whom he believes to be a liar.” (Wallace v. Pacific
Electric Ry. Co. (1930) 105 Cal.App. 664, 671 [288 P. 834].)
• Standard 10.20(a)(2) of the Standards for Judicial Administration provides: “In
all courtroom proceedings, refrain from engaging in conduct and prohibit others
from engaging in conduct that exhibits bias, including but not limited to bias
based on disability, gender, race, religion, ethnicity, and sexual orientation,
whether that bias is directed toward counsel, court personnel, witnesses, parties,
jurors, or any other participants.”
• Canon 3(b)(5) of the Code of Judicial Ethics provides: “A judge shall perform
judicial duties without bias or prejudice. A judge shall not, in the performance of
judicial duties, engage in speech, gestures, or other conduct that would
reasonably be perceived as (1) bias or prejudice, including but not limited to bias
or prejudice based on race, sex, religion, national origin, disability, age, sexual
orientation, or socioeconomic status, or (2) sexual harassment.” Canon 3(b)(6)
requires the judge to impose these standards on attorneys also.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 299
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 10-D,
Objectives Of Cross-Examination, ¶ 10:91 et seq. (The Rutter Group)
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-F,
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Limitations On Impeachment And Rehabilitation, ¶ 8:2990 et seq. (The Rutter
Group)
1A California Trial Guide, Unit 20, Procedural Rules for Presentation of Evidence
(Matthew Bender)
14 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.110 et seq.
(Matthew Bender)
Cotchett, California Courtroom Evidence, § 16.45 (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 11, Questioning Witnesses and Objections, 11.03 et seq.
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5004. Service Provider for Juror With Disability
[Name or number of juror] has been assisted by [a/an] [insert type of
service provider] to communicate and receive information. The [service
provider] will be with you during your deliberations. You may not discuss
the case with the [service provider]. The [service provider] is not a
member of the jury and is not to participate in the deliberations in any
way other than as necessary to provide the service to [name or number of
juror].
All jurors must be able to fully participate in deliberations. In order to
allow the [service provider] to properly assist [name or number of juror],
jurors should not talk at the same time and should not have side
conversations. Jurors should speak directly to [name or number of juror],
not to the [service provider].
[Two [service providers] will be present during deliberations and will take
turns in assisting [name or number of juror].]
New September 2003; Revised April 2004, December 2012
Directions for Use
If this instruction is used, the advisory committee recommends that it be read to the
jury before reading instructions on the substantive law.
Sources and Authority
• Eligibility to Serve as Juror. Code of Civil Procedure section 203(a)(6).
• Service Provider for Juror With Disability. Code of Civil Procedure section 224.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 320, 330
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§ 322.32 (Matthew Bender)
1 Matthew Bender Practice Guide: Trial and Post-Trial Civil Procedure, Ch. 8
Interpreters, 8.31
California Judges Benchbook: Civil Proceedings—Trial § 13.10 (Cal CJER 2019)
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5005. Multiple Parties
[There are [number] plaintiffs in this trial. You should decide the case of
each plaintiff separately as if it were a separate lawsuit. Each plaintiff is
entitled to separate consideration of each plaintiff’s own claim(s).]
[There are [number] defendants in this trial. You should decide the case
against each defendant separately as if it were a separate lawsuit. Each
defendant is entitled to separate consideration of each defendant’s own
defenses.]
[Different aspects of this case involve different parties (plaintiffs and
defendants). Each instruction will identify the parties to whom it applies.
Pay particular attention to the parties named in each instruction.]
[or]
[Unless I tell you otherwise, all instructions apply to each plaintiff and
defendant.]
New April 2004; Revised April 2009, May 2020
Directions for Use
If this instruction is used, the advisory committee recommends that it be read to the
jury before reading instructions on the substantive law.
The CACI instructions require the use of party names rather than party-status words
like “plaintiff” and “defendant.” In multiparty cases, it is important to name only the
parties in each instruction to whom the instruction applies. For example, an
instruction on loss of consortium (see CACI No. 3920) will not apply to all
plaintiffs. Instructions on vicarious liability (see CACI No. 3700 et seq.) will not
apply to all defendants. Unless all or nearly all of the instructions will apply to all
of the parties, give the first option for the last paragraph.
Sources and Authority
• “We realize, of course, that multiple defendants are involved and that each
defendant is entitled to instructions on, and separate consideration of, every
defense available and applicable to it. The purpose of this rule is to insure that
the jury will distinguish and evaluate the separate facts relevant to each
defendant.” (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 58 [148
Cal.Rptr. 596, 583 P.2d 121], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 78
27 California Forms of Pleading and Practice, Ch. 318, Judgments, § 318.15
(Matthew Bender)
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1 California Pretrial Civil Procedure Practice Guide: The Wagstaffe Group, Ch. 10,
Determining Initial Parties to the Action, § 10-I
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5006. Nonperson Party
A [corporation/partnership/city/county/[other entity]], [name of entity], is a
party in this lawsuit. [Name of entity] is entitled to the same fair and
impartial treatment that you would give to an individual. You must
decide this case with the same fairness that you would use if you were
deciding the case between individuals.
When I use words like “person” or “he” or “she” in these instructions to
refer to a party, those instructions also apply to [name of entity].
New April 2004
Directions for Use
This instruction should be given if one of the parties is an entity. Select the type of
entity and insert the name of the entity where indicated in the instruction. If this
instruction is used, the advisory committee recommends that it be read to the jury
before reading instructions on the substantive law.
Sources and Authority
• Corporations Have Powers of Natural Person. Corporations Code section 207.
• “Person” Includes Corporation. Civil Code section 14.
• As a general rule, a corporation is considered to be a legal entity that has an
existence separate from that of its shareholders. (Erkenbrecher v. Grant (1921)
187 Cal. 7, 9 [200 P. 641].)
• “In general, any person or entity has capacity to sue or defend a civil action in
the California courts. This includes artificial ‘persons’ such as corporations,
partnerships and associations.” (American Alternative Energy Partners II, 1985 v.
Windridge, Inc. (1996) 42 Cal.App.4th 551, 559 [49 Cal.Rptr.2d 686], internal
citations omitted.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Corporations, § 1
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5007. Removal of Claims or Parties and Remaining Claims and
Parties
[[Name of plaintiff]’s claim for [insert claim] is no longer an issue in this
case.]
[[Name of party] is no longer a party to this case.]
Do not speculate as to why this [claim/person] is no longer involved in
the case. You should not consider this during your deliberations.
The following claims remain for you to resolve by your deliberations:
1. [Name of plaintiff]’s claim against [name of defendant] for [specify
claim] [to which [name of defendant] alleges [specify affırmative
defense]].
2. [Repeat for all claims, defenses, and parties that will go to the jury.]
New April 2004; Revised December 2011
Directions for Use
This instruction may be read if some of the claims and parties before the jury at the
beginning of the trial (see CACI No. 101, Overview of Trial) are no longer to be
resolved by the jury. The instruction then summarizes the claims and parties that
remain for the jury to resolve. The advisory committee recommends that this
instruction be read to the jury before reading instructions on the substantive law.
In the second part of the instruction that sets forth the remaining claims, include the
optional language if there are affirmative defenses that the jury will be asked to
determine.
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5008. Duty to Abide by Translation Provided in Court
Some testimony was given in [insert language other than English]. An
interpreter provided translation for you at the time that the testimony
was given. You must rely solely on the translation provided by the
interpreter, even if you understood the language spoken by the witness.
Do not retranslate any testimony for other jurors.
New April 2004
Directions for Use
If this instruction is used, the advisory committee recommends that it be read to the
jury before reading instructions on the substantive law.
Sources and Authority
• It is misconduct for a juror to retranslate for other jurors testimony that has been
translated by the court-appointed interpreter. (People v. Cabrera (1991) 230
Cal.App.3d 300, 303 [281 Cal.Rptr. 238].)
• “It is well-settled a juror may not conduct an independent investigation into the
facts of the case or gather evidence from outside sources and bring it into the
jury room. It is also misconduct for a juror to inject his or her own expertise
into the jury’s deliberation.” (People v. Cabrera, supra, 230 Cal.App.3d at p.
303.)
• “If [the juror] believed the court interpreter was translating incorrectly, the
proper action would have been to call the matter to the trial court’s attention, not
take it upon herself to provide her fellow jurors with the ‘correct’ translation.”
(People v. Cabrera, supra, 230 Cal.App.3d at p. 304.)
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Hearsay, § 126
3 Witkin, California Evidence (5th ed. 2012) Presentation, § 40
1 California Trial Guide, Unit 3, Other Non-Evidentiary Motions, § 3.32 (Matthew
Bender)
1A California Trial Guide, Unit 20, Procedural Rules for Presentation of Evidence,
§ 20.13 (Matthew Bender)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.10, 91.12 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 8.119 (Cal CJER 2019)
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5009. Predeliberation Instructions
When you go to the jury room, the first thing you should do is choose a
presiding juror. The presiding juror should see to it that your discussions
are orderly and that everyone has a fair chance to be heard.
It is your duty to talk with one another in the jury room and to consider
the views of all the jurors. Each of you must decide the case for yourself,
but only after you have considered the evidence with the other members
of the jury. Feel free to change your mind if you are convinced that your
position should be different. You should all try to agree. But do not give
up your honest beliefs just because the others think differently.
Please do not state your opinions too strongly at the beginning of your
deliberations or immediately announce how you plan to vote as it may
interfere with an open discussion. Keep an open mind so that you and
your fellow jurors can easily share ideas about the case.
You should use your common sense and experience in deciding whether
testimony is true and accurate. However, during your deliberations, do
not make any statements or provide any information to other jurors
based on any special training or unique personal experiences that you
may have had related to matters involved in this case. What you may
know or have learned through your training or experience is not a part
of the evidence received in this case.
Sometimes jurors disagree or have questions about the evidence or about
what the witnesses said in their testimony. If that happens, you may ask
to have testimony read back to you [or ask to see any exhibits admitted
into evidence that have not already been provided to you]. Also, jurors
may need further explanation about the laws that apply to the case. If
this happens during your discussions, write down your questions and
give them to the [clerk/bailiff/court attendant]. I will talk with the
attorneys before I answer so it may take some time. You should continue
your deliberations while you wait for my answer. I will do my best to
answer them. When you write me a note, do not tell me how you voted
on an issue until I ask for this information in open court.
Your decision must be based on your personal evaluation of the evidence
presented in the case. Each of you may be asked in open court how you
voted on each question.
While I know you would not do this, I am required to advise you that
you must not base your decision on chance, such as a flip of a coin. If
you decide to award damages, you may not agree in advance to simply
add up the amounts each juror thinks is right and then, without further
deliberations, make the average your verdict.
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You may take breaks, but do not discuss this case with anyone, including
each other, until all of you are back in the jury room.
New September 2003; Revised April 2004, October 2004, February 2007, December
2009, June 2011, June 2013, May 2019
Directions for Use
The advisory committee recommends that this instruction be read to the jury after
closing arguments and after reading instructions on the substantive law.
If a special verdict will be used, give CACI No. 5012, Introduction to Special
Verdict Form. If a general verdict is to be used, give CACI No. 5022, Introduction
to General Verdict Form.
Judges may want to provide each juror with a copy of the verdict form so that the
jurors can use it to keep track of how they vote. Jurors can be instructed that this
copy is for their personal use only and that the presiding juror will be given the
official verdict form to record the jury’s decision. Judges may also want to advise
jurors that they may be polled in open court regarding their individual verdicts.
Delete the reference to reading back testimony if the proceedings are not being
recorded.
Sources and Authority
• Conduct of Jury Deliberations. Code of Civil Procedure section 613.
• Further Instructions After Deliberation Begins. Code of Civil Procedure section
614.
• Verdict Requires Three Fourths. Code of Civil Procedure section 618, article I,
section 16, of the California Constitution.
• Juror Misconduct as Grounds for New Trial. Code of Civil Procedure section
657.
• “Chance is the ‘hazard, risk, or the result or issue of uncertain and unknown
conditions or forces.’ Verdicts reached by tossing a coin, drawing lots, or any
other form of gambling are examples of improper chance verdicts. ‘The more
sophisticated device of the quotient verdict is equally improper: The jurors agree
to be bound by an average of their views; each writes the amount he favors on a
slip of paper; the sums are added and divided by 12, and the resulting “quotient”
pursuant to the prior agreement, is accepted as the verdict without further
deliberation or consideration of its fairness.’ ” (Chronakis v. Windsor (1993) 14
Cal.App.4th 1058, 1064 [18 Cal.Rptr.2d 106], original italics.)
• “ ‘[T]here is no impropriety in the jurors making an average of their individual
estimates as to the amount of damages for the purpose of arriving at a basis for
discussion and consideration, nor in adopting such average if it is subsequently
agreed to by the jurors; but to agree beforehand to adopt such average and abide
by the agreement, without further discussion or deliberation, is fatal to the
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verdict.’ ” (Chronakis, supra, 14 Cal.App.4th at p. 1066.)
• Jurors should be encouraged to deliberate on the case. (Vomaska v. City of San
Diego (1997) 55 Cal.App.4th 905, 911 [64 Cal.Rptr.2d 492].)
• The jurors may properly be advised of the duty to hear and consider each other’s
arguments with open minds, rather than preventing agreement by stubbornly
sticking to their first impressions. (Cook v. Los Angeles Ry. Corp. (1939) 13
Cal.2d 591, 594 [91 P.2d 118].)
• “The trial court properly denied the motion for new trial on the ground that [the
plaintiff] did not demonstrate the jury reached a chance or quotient verdict. The
jury agreed on a high and a low figure and, before calculating an average, they
further agreed to adjust downward the high figure and to adjust upward the low
figure. There is no evidence that this average was adopted without further
consideration or that the jury agreed at any time to adopt an average and abide
by the agreement without further discussion or deliberation.” (Lara v. Nevitt
(2004) 123 Cal.App.4th 454, 462–463 [19 Cal.Rptr.3d 865].)
• “It is not improper for a juror, regardless of his or her educational or
employment background, to express an opinion on a technical subject, so long as
the opinion is based on the evidence at trial. Jurors’ views of the evidence,
moreover, are necessarily informed by their life experiences, including their
education and professional work. A juror, however, should not discuss an opinion
explicitly based on specialized information obtained from outside sources. Such
injection of external information in the form of a juror’s own claim to expertise
or specialized knowledge of a matter at issue is misconduct.” (In re Malone
(1996) 12 Cal.4th 935, 963 [50 Cal.Rptr.2d 281, 911 P.2d 468].)
• “[The juror]’s comments to the jury, in the nature of an expert opinion
concerning the placement of crossing gate ‘sensors,’ their operation, and the
consequent reason why gates had not been or could not be installed at the J-
crossing, constituted misconduct . . . . Speaking with the authority of a
professional transportation consultant, [the juror] interjected the subject of
‘sensors,’ on which there had been no evidence at trial.” (McDonald v. S. Pac.
Transp. Co. (1999) 71 Cal.App.4th 256, 263–264 [83 Cal.Rptr.2d 734].)
• “Jurors cannot, without violation of their oath, receive or communicate to fellow
jurors information from sources outside the evidence in the case. ‘[It] is
misconduct for a juror during the trial to discuss the matter under investigation
outside the court or to receive any information on the subject of the litigation
except in open court and in the manner provided by law. Such misconduct unless
shown by the prevailing party to have been harmless will invalidate the
verdict.’ ” (Smith v. Covell (1980) 100 Cal.App.3d 947, 952–953 [161 Cal.Rptr.
377], original italics, internal citations omitted.)
• “ ‘All the jurors, including those with relevant personal backgrounds, were
entitled to consider this evidence and express opinions regarding it. “[I]t is an
impossible standard to require . . . [the jury] to be a laboratory, completely
sterilized and freed from any external factors.” [Citation.] “It is ‘virtually
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impossible to shield jurors from every contact or influence that might
theoretically affect their vote.’ ” [Citation.] A juror may not express opinions
based on asserted personal expertise that is different from or contrary to the law
as the trial court stated it or to the evidence, but if we allow jurors with
specialized knowledge to sit on a jury, and we do, we must allow those jurors to
use their experience in evaluating and interpreting that evidence. Moreover,
during the give and take of deliberations, it is virtually impossible to divorce
completely one’s background from one’s analysis of the evidence. We cannot
demand that jurors, especially lay jurors not versed in the subtle distinctions that
attorneys draw, never refer to their background during deliberations. “Jurors are
not automatons. They are imbued with human frailties as well as virtues.”
[Citation.]’ ” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 77 [133
Cal.Rptr.3d 548, 264 P.3d 336], original italics.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 318, 321, 380
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-A,
General Considerations, ¶ 15:15 et seq. (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.01 (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions,
§ 326.32[3] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326A, Jury Verdicts, § 326A.14
(Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.33
California Judges Benchbook: Civil Proceedings—Trial §§ 13.8, 13.32, 13.50, 13.53,
13.59, 14.6, 14.21 (Cal CJER 2019)
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5010. Taking Notes During the Trial
If you have taken notes during the trial, you may take your notebooks
with you into the jury room.
You may use your notes only to help you remember what happened
during the trial. Your independent recollection of the evidence should
govern your verdict. You should not allow yourself to be influenced by
the notes of other jurors if those notes differ from what you remember.
At the end of the trial, your notes will be [collected and
destroyed/collected and retained by the court but not as a part of the
case record/[specify other disposition]].
New April 2004; Revised February 2005, April 2007, December 2007
Directions for Use
If CACI No. 102, Taking Notes During the Trial, is given as a pretrial instruction,
the court may also give this instruction as a concluding instruction.
In the last paragraph, specify the court’s disposition of the notes after trial. No
statute or rule of court requires any particular disposition.
Sources and Authority
• Juror Notes. Rule 2.1031 of the California Rules of Court.
• “Because of [the risks of note-taking], a number of courts have held that a
cautionary instruction is required. For example, [one court] held that the
instruction should include ‘an explanation . . . that [jurors] should not permit
their note-taking to distract them from the ongoing proceedings; that their notes
are only an aid to their memory and should not take precedence over their
independent recollection; that those jurors who do not take notes should rely on
their independent recollection of the evidence and not be influenced by the fact
that another juror has taken notes; and that the notes are for the note taker’s own
personal use in refreshing his recollection of the evidence. The jury must be
reminded that should any discrepancy exist between their recollection of the
evidence and their notes, they should request that the record of the proceedings
be read back and that it is the transcript that must prevail over their notes.’ ”
(People v. Whitt (1984) 36 Cal.3d 724, 747 [205 Cal.Rptr. 810, 685 P.2d 1161],
internal citations and footnote omitted.)
• “In People v. Whitt, we recognized the risks inherent in juror note-taking and
observed that it is ‘the better practice’ for courts to give, sua sponte, a cautionary
instruction on note-taking. Although the ideal instruction would advert
specifically to all the dangers of note-taking, we found the less complete
instruction given in Whitt to be adequate: ‘Be careful as to the amount of notes
that you take. I’d rather that you observe the witness, observe the demeanor of
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that witness, listen to how that person testifies rather than taking copious notes
. . . . [I]f you do not recall exactly as to what a witness might have said or you
disagree, for instance, during the deliberation [sic] as to what a witness may
have said, we can reread that transcript back . . . . ’ ” (People v. Silbertson
(1985) 41 Cal.3d 296, 303 [221 Cal.Rptr. 152, 709 P.2d 1321], internal citations
and footnote omitted.)
Secondary Sources
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-D, Jurors’
Notes, ¶ 7:41 et seq. (The Rutter Group)
California Deskbook on Complex Civil Litigation Management, Ch. 4, Trial of
Complex Cases, § 4.21[5] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.32
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 3.97 (Cal CJER 2019)
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5011. Reading Back of Trial Testimony in Jury Room
You may request in writing that trial testimony be read to you. I will
have the court reporter read the testimony to you. You may request that
all or a part of a witness’s testimony be read.
Your request should be as specific as possible. It will be helpful if you
can state:
1. The name of the witness;
2. The subject of the testimony you would like to have read; and
3. The name of the attorney or attorneys asking the questions when
the testimony was given.
The court reporter is not permitted to talk with you when she or he is
reading the testimony you have requested.
While the court reporter is reading the testimony, you may not
deliberate or discuss the case.
You may not ask the court reporter to read testimony that was not
specifically mentioned in a written request. If your notes differ from the
testimony, you must accept the court reporter’s record as accurate.
New April 2004; Revised February 2005
Directions for Use
The read-back should not be conducted in the jury room unless the attorneys
stipulate to that location.
Sources and Authority
• Jury Request for Additional Information During Deliberations. Code of Civil
Procedure section 614.
• “Section 614 of the Code of Civil Procedure provides that if there is a
disagreement among jurors during their deliberations as to any part of the
testimony which they have heard they may return into court and secure from the
court in the presence of counsel for all parties the desired information as to the
record. If they ask for testimony relating to a specified subject, they are entitled
to hear all of it. However, it is equally clear that the trial judge does not have to
order read any part of the record which is not thus requested by the jury
foreman.” (McGuire v. W. A. Thompson Distributing Co. (1963) 215 Cal.App.2d
356, 365–366 [30 Cal.Rptr. 113], internal citations omitted.)
• “When the jury requests a repetition of certain testimony, the trial court is not
required to furnish the jury with testimony not requested.” (Allen v. Toledo
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(1980) 109 Cal.App.3d 415, 422 [167 Cal.Rptr. 270], internal citations omitted.)
• “Appellants assign as error the court’s refusal to comply with their counsel’s
request for testimony reading. It was not. It is not the party to whom the law
gives the right to select testimony to be read. And the law does not make the
party or his attorney the arbiter to determine the jury’s wishes.” (Asplund v.
Driskell (1964) 225 Cal.App.2d 705, 714 [37 Cal.Rptr. 652], original italics.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 324
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-D, Juror
Requests for Additional Information During Deliberations, ¶ 15:92 (The Rutter
Group)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.32
(Matthew Bender)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.01 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 13.37 (Cal CJER 2019)
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5012. Introduction to Special Verdict Form
I will give you [a] verdict form[s] with questions you must answer. I
have already instructed you on the law that you are to use in answering
these questions. You must follow my instructions and the form[s]
carefully. You must consider each question separately. Although you may
discuss the evidence and the issues to be decided in any order, you must
answer the questions on the verdict form[s] in the order they appear.
After you answer a question, the form tells you what to do next.
At least 9 of you must agree on an answer before you can move on to
the next question. However, the same 9 or more people do not have to
agree on each answer.
All 12 of you must deliberate on and answer each question regardless of
how you voted on any earlier question. Unless the verdict form tells all
12 jurors to stop and answer no further questions, every juror must
deliberate and vote on all of the remaining questions.
When you have finished filling out the form[s], your presiding juror
must write the date and sign it at the bottom [of the last page] and then
notify the [bailiff/clerk/court attendant] that you are ready to present
your verdict in the courtroom.
New September 2003; Revised April 2004, October 2008, December 2009,
December 2014, May 2019
Directions for Use
This instruction should be given if a special verdict form is used. The second and
third paragraphs will have to be modified in a case under the Lanterman-Petris-Short
Act. (See CACI No. 4012, Concluding Instruction (for LPS Act).)
Sources and Authority
• General and Special Verdict Forms. Code of Civil Procedure section 624.
• Special Verdicts; Requirements for Award of Punitive Damages. Code of Civil
Procedure section 625.
• “ ‘The verdict of a jury is either general or special. A general verdict is that by
which they pronounce generally upon all or any of the issues, either in favor of
the plaintiff or defendant; a special verdict is that by which the jury find the
facts only, leaving the judgment to the Court. The special verdict must present
the conclusions of fact as established by the evidence, and not the evidence to
prove them; and those conclusions of fact must be so presented as that nothing
shall remain to the Court but to draw from them conclusions of law.’ (Code Civ.
Proc., § 624.)” (J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th
323, 338 [181 Cal.Rptr.3d 286].)
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• “A special verdict is ‘fatally defective’ if it does not allow the jury to resolve
every controverted issue.” (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th
110, 136 [220 Cal.Rptr.3d 127].)
• “It is true that, in at least some respects, a special verdict—if carefully drawn
and astutely employed—may improve the quality of the factfinding process. It
can focus the jury’s attention on the relevant questions, incorporating the
pertinent legal principles, and guiding the jury away from irrelevant or improper
considerations. It can also expose defects in the jury’s deliberations when they
occur, providing an opportunity for the court to seek correction through further
deliberations.” (Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.App.5th
775, 795 [211 Cal.Rptr.3d 743].)
• “ ‘This procedure presents certain problems: “ ‘The requirement that the jury
must resolve every controverted issue is one of the recognized pitfalls of special
verdicts. “[T]he possibility of a defective or incomplete special verdict, or
possibly no verdict at all, is much greater than with a general verdict that is
tested by special findings . . . .” [Citation.]’ [Citation.]” ’ ‘A special verdict is
“fatally defective” if it does not allow the jury to resolve every controverted
issue.’ ” (J.P., supra, 232 Cal.App.4th at p. 338, internal citations omitted.)
• “All litigation is ultimately a matter of striking a reasonable compromise among
competing interests, particularly the interest in resolving cases fairly and that of
utilizing public and private resources economically. A special verdict is unlikely
to serve either of these objectives unless it is drawn with considerable care.”
(Ryan, supra, 6 Cal.App.5th at p. 796.)
• “[T]hat the jury instruction . . . defined [the element] did not obviate the
necessity of including that required element in the special verdict. ‘A jury
instruction alone does not constitute a finding. Nor does the fact that the
evidence might support such a finding constitute a finding.’ ” (Trejo, supra, 13
Cal.App.5th at p. 138.)
• “When a jury is composed of 12 persons, it is sufficient if any nine jurors arrive
at each special verdict, regardless of the jurors’ votes on other special verdict
questions.” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 255 [92 Cal.Rptr.3d
862, 206 P.3d 403], original italics.)
• “Appellate courts differ concerning the use of special verdicts. In one case the
court said, ‘we should utilize opportunities to force counsel into requesting
special verdicts.’ In contrast, a more recent decision included the negative view:
‘Toward this end we advise that special findings be requested of juries only
when there is a compelling need to do so. Absent strong reason to the contrary
their use should be discouraged.’ Obviously, it is easier to tell after the fact,
rather than before, whether the special verdict is helpful in disclosing the jury
conclusions leading to the end result.” (All-West Design, Inc. v. Boozer (1986)
183 Cal.App.3d 1212, 1221 [228 Cal.Rptr. 736], internal citations omitted.)
• “[W]e begin with the requirement that at least nine of twelve jurors agree that
each element of a cause of action has been proved by a preponderance of the
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evidence. The elements of a cause of action constitute the essential or ultimate
facts in a civil case comparable to the elements of a single, discrete criminal
offense in a criminal case. Analogizing a civil ‘cause of action’ to a single,
discrete criminal offense, and applying the criminal law jury agreement
principles to civil law, we conclude that jurors need not agree from among a
number of alternative acts which act is proved, so long as the jurors agree that
each element of the cause of action is proved.” (Stoner v. Williams (1996) 46
Cal.App.4th 986, 1002 [54 Cal.Rptr.2d 243, footnote omitted.)
• “In civil cases in which there exist multiple causes of action for which multiple
or alternative acts could support elements of more than one cause of action,
possible jury confusion could result as to whether a specific cause of action is
proved. In those cases, . . . we presume that jury instructions may be
appropriate to inform the jury that it must agree on specific elements of each
specific cause of action. Yet, this still does not require that the jurors agree on
exactly how each particular element of a particular cause of action is proved.”
(Stoner, supra, 46 Cal.App.4th at p. 1002.)
• “[A] juror who dissented from a special verdict finding negligence should not be
disqualified from fully participating in the jury’s further deliberations, including
the determination of proximate cause. The jury is to determine all questions
submitted to it, and when the jury is composed of twelve persons, each should
participate as to each verdict submitted to it. To hold that a juror may be
disqualified by a special verdict on negligence from participation in the next
special verdict would deny the parties of ‘the right to a jury of 12 persons
deliberating on all issues.’ Permitting any nine jurors to arrive at each special
verdict best serves the purpose of less-than-unanimous verdicts, overcoming
minor disagreements and avoiding costly mistrials. Once nine jurors have found
a party negligent, dissenting jurors can accept the finding and participate in
determining proximate cause just as they may participate in apportioning
liability, and we may not assume that the dissenting jurors will violate their
oaths to deliberate honestly and conscientiously on the proximate cause issue.”
(Resch v. Volkswagen of America, Inc. (1984) 36 Cal.3d 676, 682 [205 Cal.Rptr.
827, 685 P.2d 1178], internal citations omitted.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 342–346
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.21 (Matthew Bender)
27 California Forms of Pleading and Practice, Ch. 318, Judgments, § 318.49
(Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326A, Jury Verdicts, § 326A.11 et
seq. (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 18, Jury Verdicts, 18.11 et seq.
California Judges Benchbook: Civil Proceedings—Trial § 14.14 (Cal CJER 2019)
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5013. Deadlocked Jury Admonition
You should reach a verdict if you reasonably can. You have spent time
trying to reach a verdict, and this case is important to the parties so that
they can move on with their lives with this matter resolved.
[If you are unable to reach a verdict, the case will have to be tried
before another jury selected in the same manner and from the same
community from which you were chosen and at additional cost to
everyone.]
Please carefully consider the opinions of all the jurors, including those
with whom you disagree. Keep an open mind and feel free to change
your opinion if you become convinced that it is wrong.
You should not, however, surrender your beliefs concerning the truth
and the weight of the evidence. Each of you must decide the case for
yourself and not merely go along with the conclusions of your fellow
jurors.
New September 2003; Revised April 2004, June 2012
Directions for Use
Give the optional second paragraph if desired. Similar language has been found to
be noncoercive in a civil case as long as it is accompanied by language such as that
included in the last paragraph of the instruction. (See Inouye v. Pacific Southwest
Airlines (1981) 126 Cal.App.3d 648, 650–652 [179 Cal.Rptr. 13]; cf. People v.
Gainer (1977) 19 Cal. 3d 835, 852 [139 Cal.Rptr. 861, 566 P.2d 997] [in criminal
case, it is error for a trial court to give an instruction that states or implies that if
the jury fails to agree, the case will necessarily be retried].)
Sources and Authority
• Deadlocked Jury. Rule 2.1036 of the California Rules of Court.
• “The court told the jury they should reach a verdict if they reasonably could;
they should not surrender their conscious convictions of the truth and the weight
of the evidence; each juror must decide the case for himself and not merely
acquiesce in the conclusion of his fellows; the verdict should represent the
opinion of each individual juror; and in reaching a verdict each juror should not
violate his individual judgment and conscience. These remarks clearly
outweighed any offensive portions of the charge. The court did not err in giving
the challenged instruction.” (Inouye, supra, 126 Cal.App.3d at p. 652.)
• “A trial court may properly advise a jury of the importance of arriving at a
verdict and of the duty of individual jurors to hear and consider each other’s
arguments with open minds, rather than to prevent agreement by obstinate
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adherence to first impressions. But, as the exclusive right to agree or not to
agree rests with the jury, the judge may not tell them that they must agree nor
may he harry their deliberations by coercive threats or disparaging remarks.”
(Cook v. Los Angeles Ry. Corp. (1939) 13 Cal.2d 591, 594 [91 P.2d 118],
internal citations omitted.)
• “Only when the instruction has coerced the jurors into surrendering their
conscientious convictions in order to reach agreement should the verdict be
overturned.” (Inouye, supra, 126 Cal.App.3d at p. 651.)
• “The instruction says if the jury did not reach a verdict, the case would have to
be retried. It also says the jurors should listen with deference to the arguments
and distrust their own judgment if they find a large majority taking a different
view of the case. In a criminal case the mere presence of these remarks in a jury
instruction is error. However, civil cases are subject to different considerations;
the special protections given criminal defendants are absent.” (Inouye, supra, 126
Cal.App.3d at p. 651, internal citation omitted.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 281
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-D, Juror
Requests For Additional Information During Deliberations, ¶ 15:137 et seq. (The
Rutter Group)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.39
California Judges Benchbook: Civil Proceedings—Trial § 13.43 (Cal CJER 2019)
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5014. Substitution of Alternate Juror
One of your fellow jurors has been excused and an alternate juror has
been selected to join the jury. Do not consider this substitution for any
purpose.
The alternate juror must participate fully in the deliberations that lead
to any verdict. The parties have the right to a verdict reached only after
full participation of the jurors whose votes determine that verdict. This
right will only be assured if you begin your deliberations again, from the
beginning. Therefore, you must set aside and disregard all past
deliberations and begin your deliberations all over again. Each of you
must disregard the earlier deliberations and decide this case as if those
earlier deliberations had not taken place.
Now, please return to the jury room and start your deliberations from
the beginning.
New September 2003; Revised April 2004, December 2012
Sources and Authority
• “Deliberations provide the jury with the opportunity to review the evidence in
light of the perception and memory of each member. Equally important in
shaping a member’s viewpoint are the personal reactions and interactions as any
individual juror attempts to persuade others to accept his or her viewpoint. The
result is a balance easily upset if a new juror enters the decision-making process
after the 11 others have commenced deliberations.” (People v. Collins (1976) 17
Cal.3d 687, 693 [131 Cal.Rptr. 782, 552 P.2d 742].)
• “We agree with plaintiff that the principles set forth in Collins apply to civil as
well as criminal cases. The right to a jury trial in civil cases is also guaranteed
by article I, section 16 of the California Constitution, and the provisions of the
statute governing the substitution of jurors in civil cases are the same as the ones
governing criminal cases. The same considerations require that each juror engage
in all of the jury’s deliberations in both criminal and civil cases. The requirement
that at least nine persons reach a verdict is not met unless those nine reach their
consensus through deliberations which are the common experience of all of
them. Accordingly, we construe section 605 [now 234] of the Code of Civil
Procedure to require that the court instruct the jury to disregard all past
deliberations and begin deliberating anew when an alternate juror is substituted
after jury deliberations have begun.” (Griesel v. Dart Industries, Inc. (1979) 23
Cal.3d 578, 584–585 [153 Cal.Rptr. 213, 591 P.2d 503], overruled on other
grounds in Privette v. Superior Court (1993) 5 Cal.4th 689, 702, fn. 4 [21
Cal.Rptr.2d 72, 854 P.2d 721], internal citations and footnote omitted.)
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Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 146
Wegner, et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-E, Jury
Deliberations, ¶ 15:139 et seq. (The Rutter Group)
1 Matthew Bender Practice Guide: Trial and Post-Trial Civil Procedure, Ch. 17
Dealing With the Jury, 17.38
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§ 322.52 (Matthew Bender)
1 California Trial Guide, Unit 10, Voir Dire Examination, § 10.01 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 13.19 (Cal CJER 2019)
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5015. Instruction to Alternate Jurors on Submission of Case to
Jury
The jury [will soon begin/is now] deliberating, but you are still alternate
jurors and are bound by my earlier instructions about your conduct.
Until the jury is discharged, do not talk about the case or about any of
the people or any subject involved in it with anyone, not even your
family or friends[, and not even with each other]. Do not have any
contact with the deliberating jurors. Do not decide how you would vote
if you were deliberating. Do not form or express an opinion about the
issues in this case, unless you are substituted for one of the deliberating
jurors.
New February 2005; Revised December 2012
Directions for Use
If an alternate juror is substituted, see CACI No. 5014, Substitution of Alternate
Juror.
Sources and Authority
• Alternate Jurors. Code of Civil Procedure section 234.
• “Alternate jurors are members of the jury panel which tries the case. They are
selected at the same time as the regular jurors. They take the same oath and are
subject to the same qualifications as the regular jurors. Alternate jurors hear the
same evidence and are subject to the same admonitions as the regular jurors and,
unless excused by the court, are available to participate as regular jurors.”
(Rivera v. Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144],
internal citations omitted.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 145
27 California Forms of Pleading and Practice, Ch. 322, Juries and Jury Selection,
§§ 322.44, 322.52, 322.101 (Matthew Bender)
1 California Trial Guide, Unit 10, Voir Dire Examination, § 10.01 (Matthew Bender)
1 Matthew Bender Practice Guide: Trial and Post-Trial Civil Procedure, Ch. 17,
Dealing With the Jury, 17.38
California Judges Benchbook: Civil Proceedings—Trial §§ 3.89, 13.14 (Cal CJER
2019)
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5016. Judge’s Commenting on Evidence
In this case, I have exercised my right to comment on the evidence.
However, you the jury are the exclusive judges of all questions of fact
and of the credibility of the witnesses. You are free to completely ignore
my comments on the evidence and to reach whatever verdict you believe
to be correct, even if it is contrary to any or all of those comments.
New April 2007
Directions for Use
Read this instruction before deliberations if the judge has exercised the right under
article VI, section 10 of the California Constitution to comment on the evidence.
This instruction should also be given if after deliberations have begun, the jury asks
for additional guidance and the judge then comments on the evidence. (See People
v. Rodriguez (1986) 42 Cal.3d 730 [230 Cal.Rptr. 667, 726 P.2d 113].)
Sources and Authority
• Judge May Comment on the Evidence. Article VI, section 10 of the California
Constitution.
• “[T]he decisions admonish that judicial comment on the evidence must be
accurate, temperate, nonargumentative, and scrupulously fair. The trial court may
not, in the guise of privileged comment, withdraw material evidence from the
jury’s consideration, distort the record, expressly or impliedly direct a verdict, or
otherwise usurp the jury’s ultimate factfinding power.” (People v. Rodriguez,
supra, 42 Cal.3d at p. 766, internal citations omitted.)
• “[A] trial court has ‘broad latitude in fair commentary, so long as it does not
effectively control the verdict. For example, it is settled that the court need not
confine itself to neutral, bland, and colorless summaries, but may focus critically
on particular evidence, expressing views about its persuasiveness.’ . . . ‘[A]
judge may restrict his comments to portions of the evidence or to the credibility
of a single witness and need not sum up all the testimony, both favorable and
unfavorable.’ ” (People v. Proctor (1992) 4 Cal.4th 499, 542 [15 Cal.Rptr.2d
340, 842 P.2d 1100], original italics.)
• “[A] judge’s power to comment on the evidence is not unlimited. He cannot
withdraw material evidence from the jury or distort the testimony, and he must
inform the jurors that they are the exclusive judges of all questions of fact and
of the credibility of the witnesses. In civil cases, the court’s powers of comment
are less limited than in criminal cases, but they still must be kept within certain
bounds. The court may express an opinion on negligence, but the court’s
remarks must be appropriate and fair.” (Lewis v. Bill Robertson & Sons Inc.
(1984) 162 Cal.App.3d 650, 654 [208 Cal.Rptr. 699], internal citation omitted.)
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Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 255
California Trial Objections (Cont.Ed.Bar 10th ed.) §§ 29.21, 29.23
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.20
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial §§ 12.30, 12.33 (Cal CJER
2019)
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5017. Polling the Jury
After your verdict is read in open court, you may be asked individually
to indicate whether the verdict expresses your personal vote. This is
referred to as “polling” the jury and is done to ensure that at least nine
jurors have agreed to each decision.
The verdict form[s] that you will receive ask[s] you to answer several
questions. You must vote separately on each question. Although nine or
more jurors must agree on each answer, it does not have to be the same
nine for each answer. Therefore, it is important for each of you to
remember how you have voted on each question so that if the jury is
polled, each of you will be able to answer accurately about how you
voted.
[Each of you will be provided a draft copy of the verdict form[s] for
your use in keeping track of your votes.]
New October 2008; Revised May 2019
Directions for Use
Use this instruction to explain the process of polling the jury, particularly if a long
special verdict form will be used to assess the liability of multiple parties and the
damages awarded to each plaintiff from each defendant.
The third sentence in the second paragraph referring to the agreement of nine or
more jurors must be revised in a case under the Lanterman-Petris-Short Act. (See
CACI No. 4012, Concluding Instruction (for LPS Act).
Sources and Authority
• Verdict by Three Fourths in Civil Case. Article I, section 16 of the California
Constitution.
• Polling the Jury. Code of Civil Procedure section 618.
• “The polling process is designed to reveal mistakes in the written verdict, or to
show ‘that one or more jurors acceded to a verdict in the jury room but was
unwilling to stand by it in open court.’ ” (Keener v. Jeld-Wen, Inc. (2009) 46
Cal.4th 247, 256 [92 Cal.Rptr.3d 862, 206 P.3d 403].)
• “[A] juror may change his or her vote at the time of polling.” (Keener, supra, 46
Cal.4th at p. 256.)
• “[I]t is quite apparent that when a poll discloses that more than one-quarter of
the members of the jury disagree with the verdict, the trial judge retains control
of the proceedings, and may properly order the jury to retire and again consider
the case.” (Van Cise v. Lencioni (1951) 106 Cal.App.2d 341, 348 [235 P.2d
236].)
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• “[W]e begin with the requirement that at least nine of twelve jurors agree that
each element of a cause of action has been proved by a preponderance of the
evidence. The elements of a cause of action constitute the essential or ultimate
facts in a civil case comparable to the elements of a single, discrete criminal
offense in a criminal case. Analogizing a civil ‘cause of action’ to a single,
discrete criminal offense, and applying the criminal law jury agreement
principles to civil law, we conclude that jurors need not agree from among a
number of alternative acts which act is proved, so long as the jurors agree that
each element of the cause of action is proved.” (Stoner v. Williams (1996) 46
Cal.App.4th 986, 1002 [54 Cal.Rptr.2d 243], footnote omitted.)
• “In civil cases in which there exist multiple causes of action for which multiple
or alternative acts could support elements of more than one cause of action,
possible jury confusion could result as to whether a specific cause of action is
proved. In those cases, . . . we presume that jury instructions may be
appropriate to inform the jury that it must agree on specific elements of each
specific cause of action. Yet, this still does not require that the jurors agree on
exactly how each particular element of a particular cause of action is proved.”
(Stoner, supra, 46 Cal.App.4th at p. 1002.)
• “[I]f nine identical jurors agree that a party is negligent and that such negligence
is the proximate cause of the other party’s injuries, special verdicts apportioning
damages are valid so long as they command the votes of any nine jurors. To
hold otherwise would be to prohibit jurors who dissent on the question of a
party’s liability from participation in the important remaining issue of allocating
responsibility among the parties, a result that would deny all parties the right to
a jury of 12 persons deliberating on all issues.” (Juarez v. Superior Court (1982)
31 Cal.3d 759, 768 [183 Cal.Rptr. 852, 647 P.2d 128].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 339, 350
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.30[3][b] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326A, Jury Verdicts, § 326A.14
(Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 18, Jury Verdicts, 18.43
California Judges Benchbook: Civil Proceedings—Trial § 14.28 (Cal CJER 2019)
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5018. Audio or Video Recording and Transcription
A [sound/video] recording has been admitted into evidence, and a
transcription of the recording has been provided to you. The recording
itself, not the transcription, is the evidence. The transcription is not an
official court reporter’s transcript. The transcription was prepared by a
party only for the purpose of assisting the jury in following the [sound/
video] recording. The transcription may not be completely accurate. It
may contain errors, omissions, or notations of inaudible portions of the
recording. Therefore, you should use the transcription only as a guide to
help you in following along with the recording. If there is a discrepancy
between your understanding of the recording and the transcription, your
understanding of the recording must prevail.
[[Portions of the recording have been deleted.] [The transcription [also]
contains strikeouts or other deletions.] You must disregard any deleted
portions of the recording or transcription and must not speculate as to
why there are deletions or guess what might have been said or done.]
[For the video deposition(s) of [name(s) of deponent(s)], the transcript of
the court reporter is the official record that you should consider as
evidence.]
New December 2010; Revised June 2016
Directions for Use
Give this instruction if an audio or a video recording was played at trial and
accepted into evidence. A transcription is created by a party or parties in the case to
assist the jury in following the video/audio recording. Include the second paragraph
if only a portion of the recording was received into evidence or if parts of the
transcription have been redacted. Give the last paragraph if a transcript of a
deposition was provided to the jury. (See Code Civ. Proc., § 2025.510(g); see also
CACI No. 208, Deposition as Substantive Evidence.)
Sources and Authority
• Electronic Recordings of Deposition. Cal. Rules of Court, Rule 2.1040.
• “Defendant contends the trial court erred in permitting the prosecution to provide
the jury with a written transcript of the tape recording, because the transcript
was not properly authenticated as an accurate rendition of the tape recording. [¶]
Following the testimony of [witness] during the prosecution’s case-in-chief, the
prosecutor proposed to play the tape recording to the jury. Defense counsel
suggested the jury should be informed that portions of the tape recording were
unintelligible. When the trial court observed that a transcript of the tape
recording would be submitted to the jury, defense counsel voiced concern that
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the jury would follow the transcript rather than independently consider the tape
recording. The trial court indicated it would listen to the tape recording and, in
the event the court determined that the transcript would assist the jury in its
understanding of the interview, a copy of the transcript would be provided to the
jury at the time of its deliberations. . . . The trial court instructed the jury that in
the event there was any discrepancy between the jury’s understanding of the tape
recording and the typed transcript, the jury’s understanding of the recording
should control.” (People v. Sims (1993) 5 Cal.4th 405, 448 [20 Cal.Rptr.2d 537,
853 P.2d 992], internal citation omitted.)
• “ ‘To be admissible, tape recordings need not be completely intelligible for the
entire conversation as long as enough is intelligible to be relevant without
creating an inference of speculation or unfairness.’ [¶] Thus, partially
unintelligible tape is admissible unless the audible portions of the tape are so
incomplete the tape’s relevance is destroyed. The fact a tape recording ‘may not
be clear in its entirety does not of itself require its exclusion from evidence since
a witness may testify to part of a conversation if that is all he heard and it
appears to be intelligible.’ ” (People v. Polk (1996) 47 Cal.App.4th 944, 952–953
[54 Cal.Rptr.2d 921], internal citations omitted.)
• “[T]ranscripts of admissible tape recordings are only prejudicial if it is shown
they are so inaccurate that the jury might be misled into convicting an innocent
man.” (Polk, supra, 47 Cal.App.4th at p. 955.)
• “During closing arguments all counsel cautioned the jury the transcript was only
a guide and to just listen to the tape. Before the jury left to deliberate, the court
again instructed it to disregard the transcript and sent that instruction into the
jury room. We presume the jurors followed the court’s instructions regarding the
tape and the use of the transcript.” (People v. Brown (1990) 225 Cal.App.3d 585,
598 [275 Cal.Rptr. 268].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 162
5 California Trial Guide, Unit 100, The Oral Deposition, § 100.27 (Matthew
Bender)
16 California Forms of Pleading and Practice, Ch. 193, Discovery: Depositions,
§§ 193.70 et seq., 193.172 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial § 7.23 (Cal CJER 2019)
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5019. Questions From Jurors
If, during the trial, any of you had a question that you believed should
be asked of a witness, you were instructed to write out the question and
provide it to me through my courtroom staff. I shared your questions
with the attorneys, after which, I decided whether the question could be
asked.
If a question was asked and answered, you are to consider the answer as
you would any other evidence received in the trial. Do not give the
answer any greater or lesser weight because it was initiated by a juror
question.
If the question was not asked, do not speculate as to what the answer
might have been or why it was not asked. There are many legal reasons
why a suggested question cannot be asked of a witness. Give the question
no further consideration.
New June 2011
Directions for Use
This is an optional instruction for use if the jurors will be allowed to ask questions
of the witnesses. For a similar instruction to be given at the beginning of the trial,
see CACI No. 112, Questions From Jurors. This instruction may be modified to
account for an individual judge’s practice.
Sources and Authority
• Juror Questions Allowed. Rule 2.1033 of the California Rules of Court.
• “In a proper case there may be a real benefit from allowing jurors to submit
questions under proper control by the court. However, in order to permit the
court to exercise its discretion and maintain control of the trial, the correct
procedure is to have the juror write the questions for consideration by the court
and counsel prior to their submission to the witness.” (People v. McAlister
(1985) 167 Cal.App.3d 633, 644 [213 Cal.Rptr. 271].)
• “[T]he judge has discretion to ask questions submitted by jurors or to pass those
questions on and leave to the discretion of counsel whether to ask the
questions.” (People v. Cummings (1993) 4 Cal.4th 1233, 1305 [18 Cal.Rptr.2d
796, 850 P.2d 1].)
• “The appellant urges that when jurymen ask improper questions the defendant is
placed in the delicate dilemma of either allowing such question to go in without
objection or of offending the jurors by making the objection and the appellant
insists that the court of its own motion should check the putting of such
improper questions by the jurymen, and thus relieve the party injuriously
affected thereby from the odium which might result from making that objection
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thereto. There is no force in this contention. Objections to questions, whether
asked by a juror or by opposing counsel, are presented to the court, and its
ruling thereon could not reasonably affect the rights or standing of the party
making the objection before the jury in the one case more than in the other.”
(Maris v. H. Crummey, Inc. (1921) 55 Cal.App. 573, 578–579 [204 P. 259].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 97
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-E, Juror
Questioning of Witnesses, ¶ 7:45.10 et seq. (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.01–91.03 (Matthew Bender)
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5020. Demonstrative Evidence
During the trial, materials have been shown to you to [help explain
testimony or other evidence in the case/[specify other purpose]]. [Some of
these materials have been admitted into evidence, and you will be able to
review them during your deliberations.
Other materials have also been shown to you during the trial, but they
have not been admitted into evidence.] You will not be able to review
them during your deliberations because they are not themselves evidence
or proof of any facts. You may, however, consider the testimony given in
connection with those materials.
New December 2011; Revised June 2012
Directions for Use
This instruction may be given if the jury has been provided with charts, summaries,
or other demonstrative evidence during the trial to assist in understanding complex
evidence. The purpose of the instruction is to explain to the jury why certain
materials are available for deliberations and other materials are not. Include the
bracketed sentences if some materials have been admitted into evidence.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 161
Cotchett, California Courtroom Evidence, Ch. 2, Words and Phrased Defined, § 2.09
(Matthew Bender)
Cotchett, California Courtroom Evidence, Ch. 27, Demonstrative and Experimental
Evidence, § 27.01 (Matthew Bender)
Johnson, California Trial Guide, Unit 65, Presentation of Demonstrative Evidence,
§§ 65.01, 65.10 (Matthew Bender)
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 11, Questioning Witnesses and Objections, 11.109 et seq.
California Judges Benchbook: Civil Proceedings—Trial § 7.30 (Cal CJER 2019)
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5021. Electronic Evidence
Some exhibits that have been admitted into evidence will be provided to
you electronically. The equipment necessary to view these exhibits will be
available to you in the jury room. Do not use the equipment for any
purpose other than to view the electronic exhibits. Do not use it to access
the Internet or any other source of information. Do not use it for any
personal reason whatsoever, including but not limited to reviewing email,
entertainment, or engaging in social media.
If you need technical assistance or additional equipment or supplies, you
may make a request by sending me a note through the
[clerk/bailiff/court attendant]. Should it become necessary for a
technician to enter the jury room, stop your deliberations until the
technician has left. Do not discuss with him or her, or with each other,
any exhibit or any aspect of the case while the technician is present. Do
not say anything to the technician other than to (1) describe the
technical problem(s) and/or to (2) request instruction on how to operate
the equipment.
[You may request a paper copy of an exhibit received in evidence. One
will be supplied, if possible.]
New June 2014
Directions for Use
Give this instruction if exhibits have been introduced in electronic format only.
Modify or expand the instruction as necessary to set forth the particular process for
the viewing of electronic exhibits in the particular courtroom. Give the last
paragraph if a paper copy will be available.
Secondary Sources
8 Witkin, California Procedure (5th ed. 2008) Trial, § 161
Wegner, et al., California Practice Guide: Civil Trials & Evidence, Ch. 15-C,
Matters Allowed In Jury Room During Deliberations, ¶ 15:83 et seq. (The Rutter
Group)
Cotchett, California Courtroom Evidence, Ch. 27 Demonstrative and Experimental
Evidence, § 27.01 (Matthew Bender)
Johnson, California Trial Guide, Unit 65, Presentation of Demonstrative Evidence,
§ 65.10 (Matthew Bender)
1 Cathcart et al., Matthew Bender Practice Guide: California Debt Collection and
Enforcement of Judgments, Ch. 11, Questioning Witnesses and Objections, 11.09 et
seq.
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California Judges Benchbook: Civil Proceedings—Trial §§ 7.24, 13.27 (Cal CJER
2019)
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5022. Introduction to General Verdict Form
I will give you [a] general verdict form[s]. The form[s] ask[s] you to find
either in favor of [name of plaintiff] or [name of defendant]. [It also asks
you to answer [an] additional question[s] regarding [specify, e.g., the right
to punitive damages].] I have already instructed you on the law that you
are to refer to in making your determination[s].
At least nine of you must agree on your decision [and in answering the
additional question[s]]. [If there is more than one question on the verdict
form, as long as nine of you agree on your answers to each question, the
same nine do not have to agree on each answer.]
In reaching your verdict [and answering the additional question[s]], you
must decide whether the party with the burden of proof has proved all
of the necessary facts in support of each required element of [his/her/
nonbinary pronoun/its] claim or defense. You should review the elements
addressed in the other instructions that I have given you and determine
if at least nine of you agree that each element has been proven by the
evidence received in the trial. The same nine do not have to agree on
each element.
When you have finished filling out the form, your presiding juror must
write the date and sign it at the bottom and then notify the [bailiff/clerk/
court attendant] that you are ready to present your verdict in the
courtroom.
New May 2018; Revised May 2019
Directions for Use
If a general verdict will be used, this instruction may be given to guide the jury on
how to go about reaching a verdict. With a general verdict, there is a danger that the
jury will shortcut the deliberative process of carefully looking at each element of
each claim or defense and simply vote for the plaintiff or for the defendant. This
instruction directs the jury to approach its task as if a special verdict were being
used and questions on each element of each claim or defense had to be answered.
This instruction assumes that the rule applicable to special verdicts, that the same
nine jurors do not need to agree on every element of a claim as long as there are
nine in favor of each (see Juarez v. Superior Court (1982) 31 Cal.3d 759, 768–769
[183 Cal.Rptr. 852, 647 P.2d 128]; CACI No. 5012, Introduction to Special Verdict
Form), would apply to deliberations using a general verdict.
This purpose of this instruction is to lessen the possibility that the “paradox of
shifting majorities” will happen. This paradox occurs when the same jury analyzing
the same evidence would find liability with a special verdict, but not with a general
verdict. The possibility arises because with a special verdict, a juror who votes no
1435
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CACI No. 5022 CONCLUDING INSTRUCTIONS
on one question but is in a minority of three or fewer must continue to deliberate
and vote on all of the remaining questions.
If, for example, the vote on element 3 is 9-3 yes with jurors 10-12 voting no, and
the vote on element 4 is 11-1 yes with juror 1 voting no, there will be liability with
a special verdict because each element has received nine yes votes. But if a general
verdict is used, there would be no liability because only eight jurors have found true
every element of the claim. The California Supreme Court has found this result to
be proper with regard to special verdicts. (See Juarez, supra, 31 Cal.3d at p. 768.)
With a general verdict, if the jury votes on each element of each claim or defense, it
is more likely to find nine votes for each element, even though it may be a different
nine each time.
The second and third paragraphs will have to be modified in a case under the
Lanterman-Petris-Short Act. (See CACI No. 4012, Concluding Instruction (for LPS
Act).)
Sources and Authority
• “[I]f nine identical jurors agree that a party is negligent and that such negligence
is the proximate cause of the other party’s injuries, special verdicts apportioning
damages are valid so long as they command the votes of any nine jurors. To
hold otherwise would be to prohibit jurors who dissent on the question of a
party’s liability from participation in the important remaining issue of allocating
responsibility among the parties, a result that would deny all parties the right to
a jury of 12 persons deliberating on all issues.” (Juarez, supra, 31 Cal.3d at p.
768, original italics.)
• “To determine whether a general verdict is supported by the evidence it is
necessary to ascertain the issues embraced within the verdict and measure the
sufficiency of the evidence as related to those issues. For this purpose reference
may be had to the pleadings, the pretrial order and the charge to the jury. A
general verdict implies a finding of every fact essential to its validity which is
supported by the evidence. Where several issues responsive to different theories
of law are presented to the jury and the evidence is sufficient to support facts
sustaining the verdict under one of those theories, it will be upheld even though
the evidence is insufficient to support facts sustaining it under any other theory.”
(Owens v. Pyeatt (1967) 248 Cal.App.2d 840, 844 [57 Cal.Rptr. 100], internal
citations omitted.)
• “Implicit in [general] verdicts is the presumption that ‘all material facts in issue
as to which substantial evidence was received were determined in a manner
consistent and in conformance with the verdict.’ ” (Coorough v. De Lay (1959)
171 Cal.App.2d 41, 45 [339 P.2d 963].)
• “A general verdict imports a finding in favor of the winning party on all the
averments of his pleading material to his recovery.” (Behr v. County of Santa
Cruz (1959) 172 Cal.App.2d 697, 712 [342 P.2d 987].)
Secondary Sources
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CONCLUDING INSTRUCTIONS CACI No. 5022
7 Witkin, California Procedure (5th ed. 2008) Trial, § 338
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-A,
Verdicts, ¶ 17:1 et seq. (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury Ch. 9-M, Verdicts and
Judgment, ¶ 9:645 et seq. (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.21 (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326A, Jury Verdicts, § 326A.11 et
seq. (Matthew Bender)
Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure, Ch.
18, Jury Verdicts, 18.03 et seq.
5023–5089. Reserved for Future Use
1437
Copyright Judicial Council of California
5090. Final Instruction on Discharge of Jury
Members of the jury, this completes your duties in this case. On behalf
of the parties and their attorneys, thank you for your time and your
service. It can be a great personal sacrifice to serve as a juror, but by
doing so you are fulfilling an extremely important role in California’s
system of justice. Each of us has the right to a trial by jury, but that
right would mean little unless citizens such as each of you are willing to
serve when called to do so. You have been attentive and conscientious
during the trial, and I am grateful for your dedication.
Throughout the trial, I continued to admonish you that you could not
discuss the facts of the case with anyone other than your fellow jurors
and then only during deliberations when all twelve jurors were present. I
am now relieving you from that restriction, but I have another
admonition.
You now have the absolute right to discuss or not to discuss your
deliberations and verdict with anyone[, including members of the media].
It is appropriate for the parties, their attorneys or representatives to ask
you to discuss the case, but any such discussion may occur only with
your consent and only if the discussion is at a reasonable time and place.
You should immediately report any unreasonable contact to the court.
If you do choose to discuss the case with anyone, feel free to discuss it
from your own perspective, but be respectful of the other jurors and
their views and feelings.
Thank you for your time and your service; you are discharged.
New June 2013
Directions for Use
In the third paragraph, include the reference to members of the media if the case has
received media attention and coverage.
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 372
1 Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure,
Ch. 17, Dealing With the Jury, 17.03
California Judges Benchbook: Civil Proceedings—Trial § 14.40 (Cal CJER 2019)
5091–5099. Reserved for Future Use
1438
Copyright Judicial Council of California
VF-5000. General Verdict Form—Single Plaintiff—Single
Defendant—Single Cause of Action
Select one of the following two options:
We find in favor of [name of plaintiff] and against [name of
defendant] and award damages to [name of plaintiff] in the
amount of $ .
We find in favor of [name of defendant] and against [name of
plaintiff].
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
1439
Copyright Judicial Council of California
VF-5001. General Verdict Form—Single Plaintiff—Single
Defendant—Multiple Causes of Action
For each claim, select one of the two options listed.
On [name of plaintiff]’s claim for [insert first cause of action]
we find in favor of [name of plaintiff] and against [name of
defendant].
we find in favor of [name of defendant] and against [name of
plaintiff].
On [name of plaintiff]’s claim for [insert second cause of action]
we find in favor of [name of plaintiff] and against [name of
defendant].
we find in favor of [name of defendant] and against [name of
plaintiff].
Complete the section below only if you find in favor of [name of plaintiff]
on at least one of [his/her/nonbinary pronoun/its] claims.
We award [name of plaintiff] the following damages: $ .
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2010
Directions for Use
Use of a special verdict form is recommended when there are different measures of
damages for the different causes of action.
VF-5002–VF-5099. Reserved for Future Use
1440
Copyright Judicial Council of California
Disposition Table
DT-1
Copyright Judicial Council of California

TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
A Adams v. Paul, 11 Cal.4th 583, 46 Cal.Rptr.2d 594, 904
P.2d 1205 (1995) . . . . . . . . . . . . . . . 610, 611
A. A. Baxter Corp. v. Colt Industries, Inc., 10 Cal.App.3d
Adams v. Superior Court, 2 Cal.App.4th 521, 3
144, 88 Cal.Rptr. 842 (1970) . . . . . . . 4543, 4544
Cal.Rptr.2d 49 (1992). . . . . . . . . . . . . . .1520
A. K. H. v. City of Tustin, 837 F.3d 1005 (9th Cir.
Addison v. State, 21 Cal.3d 313, 146 Cal.Rptr. 224, 578
2016) . . . . . . . . . . . . . . . . . . . . . . . 3020
P.2d 941, 146 Cal. Rptr. 224 (1978). . . . . . . .457
A.M. v. Albertsons, LLC, 178 Cal.App.4th 455, 100
Adkins v. Brett, 184 Cal. 252, 193 P. 251 (1920) . . 206
Cal.Rptr.3d 449 (2009) . . . . . . . . . . . . . . 2546
Adler v. Elphick, 184 Cal.App.3d 642, 229 Cal.Rptr. 254
Aaitui v. Grande Properties, 29 Cal.App.4th 1369, 35
(1986) . . . . . . . . . . . . . . . . . . . . . . . 4340
Cal.Rptr.2d 123 (1994) . . . . . . . . . . . . . . 1101
Advanced Micro Devices, Inc. v. Intel Corp., 9 Cal.4th
Aaris v. Las Virgenes Unified School Dist., 64
362, 36 Cal.Rptr.2d 581, 885 P.2d 994 (1994) . . 320
Cal.App.4th 1112, 75 Cal.Rptr.2d 801 (1998) . . 470
Aerojet General Corp. v. Superior Court, 177 Cal.App.3d
Aas v. Superior Court, 24 Cal.4th 627, 101 Cal. Rptr. 2d
950, 223 Cal.Rptr. 249 (1986) . . . . . . . . . . 2802
718, 12 P.3d 1125 (2000). . . . . . . . . . . . .4570
Aetna Health Plans of California, Inc. v. Yucaipa-
ABBA Rubber Co. v. Seaquist, 235 Cal.App.3d 1, 286
Calimesa Joint Unified School Dist., 72 Cal.App.4th
Cal.Rptr. 518 (1991) . . . . . . . . . . . . . . . 4420
1175, 85 Cal.Rptr.2d 672 (1999). . . . . . . . .3902
ABC International Traders, Inc. v. Matsushita Electric
Aetna Life and Casualty Co. v. City of Los Angeles, 170
Corp. of America, 14 Cal.4th 1247, 61 Cal.Rptr.2d
Cal.App.3d 865, 216 Cal.Rptr. 831 (1985).219; 3515
112, 931 P.2d 290, 1997-1 Trade Cas. (CCH) P71736
Affiliated Ute Citizens v. United States, 406 U.S. 128, 92
(1997) . . . . . . . . . . . . . . . . . . . 3300; 3320
S. Ct. 1456, 31 L. Ed. 2d 741 . . . . . . . . . . 1901
Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th
Agam v. Gavra, 236 Cal.App.4th 91, 186 Cal. Rptr. 3d
Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 1821
295 (2015) . . . . . . . . . . . . . . . . . . 358; 361
Abdulkadhim v. Wu, 53 Cal.App.5th 298, 266 Cal. Rptr.
Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal.Rptr. 141,
3d 636 (2020) . . . . . . . . . . . . . . . . . . . 452
603 P.2d 58 (1979) . . . . . . . . . . . . . . . . 1602
Abed v. Western Dental Services, Inc., 23 Cal.App.5th
Aggregates Assoc., Inc. v. Packwood, 58 Cal.2d 580, 25
726, 233 Cal.Rptr.3d 242 (2018). . . . . . . . .2500
Cal.Rptr. 545, 375 P.2d 425 (1962) . . . . . . . 4200
Abraham v. Lancaster Community Hospital, 217
Agostini v. Strycula, 231 Cal.App.2d 804, 42 Cal.Rptr.
Cal.App.3d 796, 266 Cal.Rptr. 360, 1990-1 Trade Cas.
314 (1965). . . . . . . . . . . . . . . . . . . . .1605
(CCH) P68964 (1990) . . . . . . . . . . . . . . 1520
Aguayo v. Crompton & Knowles Corp., 183 Cal.App.3d
Abrams v. Motter, 3 Cal.App.3d 828, 83 Cal.Rptr. 855
1032, 228 Cal.Rptr. 768 (1986) . . . . . . . . . 1205
(1970). . . . . . . . . . . . . . . . . . . . . . . .357
Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 107
Abstract Inv. Co. v. Hutchinson, 204 Cal.App.2d 242, 22
Cal. Rptr. 2d 841, 24 P.3d 493, 2001-1 Trade Cas.
Cal.Rptr. 309 (1962) . . . . . . . . . . . . . . . 4323
(CCH) P73317 (2001) . . . . . . . . . . . 3400; 3410
Acadia, California, Ltd. v. Herbert, 54 Cal.2d 328, 5
Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121,
Cal.Rptr. 686, 353 P.2d 294 (1960) . . . . . . . 3934
87 Cal.Rptr.2d 132, 980 P.2d 846 (1999) . . . . 2500;
Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 12
2521A; 2524
Cal.Rptr. 257, 360 P.2d 897 (1961) . . . . . . . 4510
Aguilera v. Heiman, 174 Cal.App.4th 590, 95 Cal.Rptr.3d
Aceves v. Regal Pale Brewing Co., 24 Cal.3d 502, 156
18, 74 Cal. Comp. Cases 583 (2009) . . . . . . . 457
Cal.Rptr. 41, 595 P.2d 619, 44 Cal. Comp. Cases 714
Aguilera v. Henry Soss & Co., 42 Cal.App.4th 1724, 50
(1979) . . . . . . . . . . . . . . . . . . . . . . . 3708
Cal.Rptr.2d 477, 61 Cal. Comp. Cases 201
Acosta v. Southern California Rapid Transit Dist., 2
(1996) . . . . . . . . . . . . . . . . . . . . . . . 2804
Cal.3d 19, 84 Cal.Rptr. 184, 465 P.2d 72 (1970) .902
Ahern v. Dillenback, 1 Cal.App.4th 36, 1 Cal.Rptr.2d 339
Acoustics, Inc. v. Trepte Construction, 14 Cal.App.3d
(1991). . . . . . . . . . . . . . . . . . . .2301, 2302
887, 92 Cal.Rptr. 723 (1971). . . . . . . . . . .4521
AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 274
Acree v. General Motors Acceptance Corp., 92
Cal.Rptr. 820, 799 P.2d 1253 (1990) . . . . . . 3903J
Cal.App.4th 385, 112 Cal.Rptr.2d 99 (2001) . . . 350
Ajaxo Inc. v. E*Trade Financial Corp., 187 Cal.App.4th
Acuna v. San Diego Gas & Electric Co., 217 Cal.App.4th
1295, 115 Cal.Rptr.3d 168 (2010) . . . . . . . . 4410
1402, 159 Cal.Rptr.3d 749 (2013) . . . . . 457; 2508
Ajaxo Inc. v. E*Trade Group Inc., 135 Cal.App.4th 21,
Adams v. Murakami, 54 Cal.3d 105, 284 Cal.Rptr. 318,
37 Cal.Rptr.3d 221 (2005) . . . . . 4401; 4409; 4411
813 P.2d 1348 (1991) . 117; 3940; 3942, 3943; 3945;
3947; 3949
TC-1
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Ajaxo Inc., 187 Cal.App.4th 1295, 115 Cal.Rptr.3d 168 Alexandria S. v. Pac. Fertility Medical Ctr., 55
(2010) . . . . . . . . . . . . . . . . . . . . . . . 4409 Cal.App.4th 110, 64 Cal.Rptr.2d 23 (1997) . 511; 513
Akhtar v. Mesa, 698 F.3d 1202 (9th Cir. 2012). . .3041 Alfaro v. Community Housing Improvement System &
Akins v. County of Sonoma, 67 Cal.2d 185, 60 Cal.Rptr. Planning Assn., Inc., 171 Cal.App.4th 1356, 89
499, 430 P.2d 57 (1967) . . . . . . . . . . . . . . 432 Cal.Rptr.3d 659 (2009) . . . . . . . . . . 1924; 4109
Alamo v. Practice Management Information Corp., 219 Al-Husry v. Nilsen Farms Mini-Market, Inc., 25
Cal.App.4th 466, 161 Cal.Rptr.3d 758 (2013) . 2430; Cal.App.4th 641, 31 Cal.Rptr.2d 28 (1994). . . .356
2505; 2507; 2527 Allabach v. Santa Clara County Fair Assn., Inc., 46
Alana M. v. State of California, 245 Cal.App.4th 1482, Cal.App.4th 1007, 54 Cal.Rptr.2d 330 (1996) . . 451
200 Cal. Rptr. 3d 410 (2016). . . . . . . . . . .1110 Allen v. Enomoto, 228 Cal.App.2d 798, 39 Cal.Rptr. 815
Alaniz v. Sun Pacific Shippers, L.P., 48 Cal.App.5th 332, (1964). . . . . . . . . . . . . . . . . . . . . . . .357
261 Cal.Rptr.3d 702 (2020). . . . . . . . . . .1009A Allen v. McCoy, 135 Cal.App. 500, 27 P.2d 423
Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897 (1933) . . . . . . . . . . . . . . . . . . . . . . . 1402
(1958). . . . . . . . . . . . . . . . . . . . . . . .420 Allen v. McMillion, 82 Cal.App.3d 211, 147 Cal.Rptr. 77
Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. (1978) . . . . . . . . . . . . . . . . . . . . . . . 2000
2362, 45 L.Ed.2d 280 (1975). . . . . . . . . . .2504 Allen v. Toledo, 109 Cal.App.3d 415, 167 Cal.Rptr. 270
Albert v. Southern Pacific Transportation Co., 30 (1980) . . . . . . . . . .724; 3921, 3922; 3932; 5011
Cal.App.4th 529, 35 Cal.Rptr.2d 777 (1994) . . 2901 Allen and Johnson; People v., 53 Cal.4th 60, 133
Albert v. Truck Ins. Exchange, 23 Cal.App.5th 367, 232 Cal.Rptr.3d 548, 264 P.3d 336 (2011) . . . . . . 5009
Cal.Rptr.3d 774, 232 Cal. Rptr. 3d 774 (2018) . 2021; Alliance Mortgage Co. v. Rothwell, 10 Cal.4th 1226, 44
2336 Cal.Rptr.2d 352, 900 P.2d 601 (1995). . .1923, 1924
Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405 Allied Properties v. John A. Blume & Associates, 25
(1956). . . . . . . . . . . . . . . . . . . .1730, 1731 Cal.App.3d 848, 102 Cal.Rptr. 259 (1972) . . . . 602
Alborzian v. JPMorgan Chase Bank, N.A., 185 Allison v. County of Ventura, 68 Cal.App.3d 689, 137
Cal.Rptr.3d 84, 235 Cal. App. 4th 29 . . . . . . 4700 Cal.Rptr. 542 (1977) . . . . . . . . . . . . . . . 1406
Albrecht v. Broughton, 6 Cal.App.3d 173, 85 Cal.Rptr. All-West Design, Inc. v. Boozer, 183 Cal.App.3d 1212,
659 (1970). . . . . . . . . . . . . . . . . . . . .3926 228 Cal.Rptr. 736 (1986) . . . . . . . . . . . . .5012
Alcaraz v. Vece, 14 Cal.4th 1149, 60 Cal.Rptr.2d 448, 929 Allyson v. Department of Transportation, 53 Cal.App.4th
P.2d 1239 (1997). . . . . . . . . . . . . .1000; 1002 1304, 62 Cal.Rptr.2d 490 (1997). . . . . . . . .1122
Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Alma W. v. Oakland Unified School Dist., 123
Cal.Rptr. 88, 468 P.2d 216, 35 Cal. Comp. Cases 724 Cal.App.3d 133, 176 Cal.Rptr. 287 (1981) . . . 3723
(1970) . . . . . . . . . . . . . . . . . . . . . . . 1602 Alpha & Omega Development, LP v. Whillock
Aldana v. Stillwagon, 2 Cal.App.5th 1, 205 Cal.Rptr.3d Contracting, Inc., 200 Cal.App.4th 656, 132
719 (2016) . . . . . . . . . . . . . . . . . . 555, 556 Cal.Rptr.3d 781 (2011) . . . . . . . . 1730; VF-1720
Alejo v. City of Alhambra, 75 Cal.App.4th 1180, 89 Altavion, Inc. v. Konica Minolta Systems Laboratory,
Cal.Rptr.2d 768 (1999). . . . . . . . . . . . . . .423 Inc., 226 Cal.App.4th 26, 171 Cal.Rptr.3d 714
Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409 (1936) . . . 501 (2014) . . . . . . . . . 4400–4402; 4409, 4410; 4412
Alexander v. Angel, 37 Cal.2d 856, 236 P.2d 561 Alvarado v. Dart Container Corp. of California, 4 Cal.5th
(1951). . . . . . . . . . . . . . . . . . . . . . . .337 542, 229 Cal.Rptr.3d 347, 411 P.3d 528 (2018) .2702
Alexander v. Exxon Mobil, 219 Cal.App.4th 1236, 162 Alvarez v. Seaside Transportation Services LLC, 13
Cal.Rptr.3d 617 (2013). . . . . . . . . . . . . . .455 Cal.App.5th 635, 221 Cal.Rptr.3d 119, 82 Cal. Comp.
Alexander v. Nextel Communications, Inc, 52 Cases 834 (2017) . . . . . . . . . . . . . . . . 1009B
Cal.App.4th 1376, 61 Cal.Rptr.2d 293 (1997). .2400 Alvis v. County of Ventura, 178 Cal.App.4th 536, 100
Alexander v. Scripps Memorial Hospital La Jolla, 23 Cal.Rptr.3d 494 (2009) . . . . . . . . . . . . . . 1123
Cal.App.5th 206, 232 Cal.Rptr.3d 733 (2018). .3103 Amato v. Mercury Casualty Co. (Amato II), 53
Alexander v. Superior Court, 5 Cal.4th 1218, 23 Cal.App.4th 825, 61 Cal.Rptr.2d 909 (1997) . . 2336
Cal.Rptr.2d 397, 859 P.2d 96 (1993) . . . . . . . 501 AMCO Ins. Co. v. All Solutions Ins. Agency, LLC, 244
Alexander, 23 Cal.App.5th 206, 232 Cal.Rptr.3d Cal.App.4th 883, 198 Cal.Rptr.3d 687 (2016). .2361
733. . . . . . . . . . . . . . . . . . . . . . . . .3103
TC-2
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Amelco Electric v. City of Thousand Oaks, 27 Cal.4th Anderson, 134 Cal.App.2d 738, 286 P.2d 513 . . . 3710
228, 115 Cal.Rptr.2d 900, 38 P.3d 1120 Anello v. Southern Pacific Co., 174 Cal.App.2d 317, 344
(2002) . . . . . . . . . . . . . . . . 4523; 4541, 4542 P.2d 843 (1959) . . . . . . . . . . . . . . . . . . 806
American Alternative Energy Partners II, 1985 v. Angeles Chem. Co. v. Spencer & Jones, 44 Cal.App.4th
Windridge, Inc., 42 Cal.App.4th 551, 49 Cal.Rptr.2d 112, 51 Cal.Rptr.2d 594 (1996) . . . . . . . . . . 338
686 (1996). . . . . . . . . . . . . . . . . .104; 5006 Angelia P., In re, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623
American Golf Corp. v. Superior Court, 79 Cal.App.4th P.2d 198 (1981). . . . . . . . . . . . . . . .200, 201
30, 93 Cal.Rptr.2d 683 (2000) . . . . . . . . 470–472 Angie M. v. Superior Court, 37 Cal.App.4th 1217, 44
American Master Lease LLC v. Idanta Partners, Ltd., 225 Cal.Rptr.2d 197 (1995) . . . . . . . . . . . . . . 1306
Cal.App.4th 1451, 171 Cal.Rptr.3d 548 (2014).3600; Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666,
3610; 4120 25 Cal.Rptr.2d 137, 863 P.2d 207 (1993) . 411; 1001;
American Motorcycle Assn. v. Superior Court, 20 Cal.3d 1005, 1006
578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978) . . 406; Annocki v. Peterson Enterprises, LLC, 232 Cal.App.4th
3800; 3960 32, 180 Cal.Rptr.3d 474 (2014) . . . . . . . . . 1001
American Paper & Packaging Prods., Inc. v. Kirgan, 183 Annod Corp. v. Hamilton & Samuels, 100 Cal.App.4th
Cal.App.3d 1318, 228 Cal.Rptr. 713 (1986). . .4420 1286, 123 Cal.Rptr.2d 924 (2002). .4201; 4207; VF-
American States Ins. Co. v. Progressive Casualty Ins. Co., 4200
180 Cal.App.4th 18, 102 Cal.Rptr.3d 591 Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740
(2009) . . . . . . . . . . . . . . . . . . . . . . . 2336 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . 3053
American Suzuki Motor Corp. v. Superior Court, 37 Antounian v. Louis Vuitton Malletier, 189 Cal.App.4th
Cal.App.4th 1291, 44 Cal.Rptr.2d 526 (1995) . 1231, 438, 117 Cal.Rptr.3d 3 (2010) . . . . . . . . . . 1501
1232; 3210, 3211
Apablasa v. Merritt and Co., 176 Cal.App.2d 719, 1
American Way Cellular, Inc. v. Travelers Property Cal.Rptr. 500 (1959) . . . . . . . . . . . . . . . . 311
Casualty Co. of America, 216 Cal.App.4th 1040, 157
Appel v. Burman, 159 Cal.App.3d 1209, 206 Cal.Rptr.
Cal.Rptr.3d 385 (2013) . . . . . . . . . . . . . . 3709
259 (1984). . . . . . . . . . . . . . . . . . . . .1730
AmeriGas Propane, L.P. v. Landstar Ranger, Inc., 184
Applied Equipment Corp. v. Litton Saudi Arabia, Ltd., 7
Cal.App.4th 981, 109 Cal.Rptr.3d 686 (2010). .3800
Cal.4th 503, 28 Cal.Rptr.2d 475, 869 P.2d 454
AmeriGas Propane, LP v. Landstar Ranger, Inc., 230 (1994) . . . . . . . . . . . . . 300; 2200; 3600; 3602
Cal.App.4th 1153, 179 Cal.Rptr.3d 330 (2014) . 3800
Applied Medical Corp. v. Thomas, 10 Cal.App.5th 927,
Ames v. King Cnty., 846 F.3d 340 (9th Cir. 2017) .3027 217 Cal.Rptr.3d 169 (2017) . . . . . . . . . . . 2100
AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., Arato v. Avedon, 5 Cal.4th 1172, 23 Cal.Rptr.2d 131, 858
28 Cal.App.5th 923, 239 Cal.Rptr.3d 577, 2018-2 P.2d 598 (1993) . . . . . . . . . . . . . . . . . . 532
Trade Cas. (CCH) P80576 (2018). . . . .4401, 4402
Arce v. Childrens Hospital Los Angeles, 211 Cal.App.4th
Amos v. Alpha Prop. Mgmt., 73 Cal.App.4th 895, 87 1455, 150 Cal.Rptr.3d 735 (2012). . . . .3026; 3051
Cal.Rptr.2d 34 (1999). . . . . . . . . . . . . . .1006
Archibald v. Cinerama Hawaiian Hotels, Inc., 73
Anaya v. Superior Court, 78 Cal.App.4th 971, 93 Cal.App.3d 152, 140 Cal.Rptr. 599
Cal.Rptr.2d 228 (2000) . . . . . . . . . . . . . . 3929 (1977). . . . . . . . . . . . . . . . . . . .3062–3064
Andalon v. Superior Court, 162 Cal.App.3d 600, 208 Architects & Contractors Estimating Service, Inc. v.
Cal.Rptr. 899 (1984) . . . . . . . . . . . . . . . . 513 Smith, 164 Cal.App.3d 1001, 211 Cal.Rptr. 45. .330
Anderson v. Fay Improv. Co., 134 Cal.App.2d 738, 286 Arciero Ranches v. Meza, 17 Cal.App.4th 114, 21
P.2d 513 (1955) . . . . . . . . . . . . . . . . . .3710 Cal.Rptr.2d 127 (1993) . . . . . . . . . . 4900, 4901
Anderson v. Fitness Internat., LLC, 4 Cal.App.5th 867, Arciniega v. Bank of San Bernardino, 52 Cal.App.4th
208 Cal.Rptr.3d 792 (2016) . . . . . . . . . 425; 451 213, 60 Cal.Rptr.2d 495 (1997) . . . . . . . . . . 601
Anderson v. Latimer, 166 Cal.App.3d 667, 212 Cal.Rptr. AREI II Cases, 216 Cal.App.4th 1004, 157 Cal.Rptr.3d
544 (1985) . . . . . . . . . . . . . . . . . . 452; 705 368 (2013). . . . . . . . . . . . . . . . . . . . .3600
Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d Arena v. Owens-Corning Fiberglas Corp., 63 Cal.App.4th
987, 281 Cal.Rptr. 528, 810 P.2d 549 (1991). .1200; 1178, 74 Cal. Rptr. 2d 580 (1998) . . . . . . . 1207B
1205
Arendell v. Auto Parts Club, Inc., 29 Cal.App.4th 1261,
Anderson v. Pacific Gas & Electric Co., 218 Cal.App.2d 35 Cal.Rptr.2d 83 (1994) . . . . . . . . . . . . .2801
276, 32 Cal.Rptr. 328 (1963) . . . . . . . . . . . 100
Argentieri v. Zuckerberg, 8 Cal.App.5th 768, 214
Anderson v. Wagnon, 110 Cal.App.2d 362, 242 P.2d 915 Cal.Rptr.3d 358 (2017) . . . . . . . 1700–1705; 1724
(1952). . . . . . . . . . . . . . . . . . . . . . . .720
TC-3
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Arista v. County of Riverside, 29 Cal.App.5th 1051, 241 Atkins v. City of Los Angeles, 8 Cal.App.5th 696, 214
Cal. Rptr. 3d 437 (2018) . . . . . . . . . 450A; 3001 Cal.Rptr.3d 113 (2017) . . . 2540, 2541; 2543; 2545;
Armitage v. Decker, 218 Cal.App.3d 887, 267 Cal.Rptr. 3903C
399 (1990) . . . . . . . . . . . . . . . . 2000; 3903F Atkins v. Strayhorn, 223 Cal.App.3d 1380, 273 Cal.Rptr.
Arnold v. Mutual of Omaha Ins. Co., 202 Cal.App.4th 231 (1990) . . . . . . . . . . . . . . . . . . . . . 407
580, 135 Cal.Rptr.3d 213, 77 Cal. Comp. Cases 17 Atkins, 8 Cal.App.5th 696, 214 Cal.Rptr.3d 113 . . 2545
(2011) . . . . . . . . . . . . . . . . . . . . . . . 3704 Atwood v. S. Cal. Ice Co., 63 Cal.App. 343, 218 P. 283
Arntz Contracting Co. v. St. Paul Fire and Marine (1923) . . . . . . . . . . . . . . . . . . . . . . . 2100
Insurance Co., 47 Cal.App.4th 464, 54 Cal. Rptr. 2d Auburn Woods I Homeowners Assn. v. Fair Employment
888 (1996) . . . . . . . . . . . . . . . . . 2202; 4544 & Housing Com., 121 Cal.App.4th 1578, 18 Cal. Rptr.
Arriaga v. CitiCapital Commercial Corp., 167 3d 669 (2004) . . . . . . . . . . . . . . . 2548, 2549
Cal.App.4th 1527, 85 Cal.Rptr.3d 143 (2008). .1200 Auerbach v. Great Western Bank, 74 Cal.App.4th 1172,
Arriaga v. County of Alameda, 9 Cal.4th 1055, 40 88 Cal.Rptr.2d 718 (1999) . . . . . . . . . . . . .313
Cal.Rptr.2d 116, 892 P.2d 150, 60 Cal. Comp. Cases Austero v. National Cas. Co., 84 Cal.App.3d 1, 148
316 (1995). . . . . . . . . . . . . . . . . . . . .2800 Cal.Rptr. 653 (1978) . . . . . . . . . . . . . . . 2330
Arriaga, 167 Cal.App.4th 1527, 85 Cal.Rptr.3d Austin v. Medicis, 21 Cal.App.5th 577, 230 Cal.Rptr.3d
143. . . . . . . . . . . . . . . . . . . . . . . . .1200 528 (2018) . . . . . . . . . . . 610, 611; 1902; 4120
Arroyo v. Plosay, 225 Cal.App.4th 279, 170 Cal.Rptr.3d Austin v. Riverside Portland Cement Co., 44 Cal.2d 225,
125 (2014) . . . . . . . . . . . . . . . . . . 500; 555 282 P.2d 69 (1955). . . . . . . . . . . . . . . . .415
Arroyo, 34 Cal.App.4th 755, 40 Cal.Rptr.2d 627. .1110 Austin B. v. Escondido Union School Dist., 149
Artiglio v. General Electric Co., 61 Cal.App.4th 830, 71 Cal.App.4th 860, 57 Cal.Rptr.3d 454 (2007) . . 3610
Cal.Rptr.2d 817 (1998) . . . . . . . . . . 1205; 1208 Auto Equity Sales v. Superior Court, 57 Cal.2d 450, 20
Asahi Kasei Pharma Corp. v. Actelion Ltd., 222 Cal.Rptr. 321, 369 P.2d 937 (1962) . . . . . . . 3402
Cal.App.4th 945, 166 Cal.Rptr.3d 134 (2013) . 2201; Automobile Antitrust Cases I & II, In re, 1 Cal.App.5th
3903N 127, 204 Cal.Rptr.3d 330, 2016-2 Trade Cas. (CCH)
Asgari v. City of Los Angeles, 15 Cal.4th 744, 63 P79689 (2016) . . . . . . . . . . . . . . . . . . 3400
Cal.Rptr.2d 842, 937 P.2d 273 (1997) . . . . . . 1407 Autry v. Republic Productions, Inc., 30 Cal.2d 144, 180
Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 P.2d 888 (1947) . . . . . . . . . . . . . . . . . . 300
(1944) . . . . . . . . . . . . . . . . . . . . . . . 3929 Avidor v. Sutter’s Place, Inc., 212 Cal.App.4th 1439, 151
Ash v. North American Title Co., 223 Cal.App.4th 1258, Cal.Rptr.3d 804 (2013). . . . . . . . . . . . . . .370
168 Cal. Rptr. 3d 499 (2014) . . . . . . . . 351; 432 Avila v. Citrus Community College Dist., 38 Cal.4th 148,
Ashcraft v. King, 228 Cal.App.3d 604, 278 Cal.Rptr. 900 41 Cal.Rptr.3d 299, 131 P.3d 383 (2006) . . . . . 472
(1991) . . . . . 530B; 1300; 1302, 1303; 1306; 1320 Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237,
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 82 Cal.Rptr.3d 440 (2008) . . . . . . . . . . . . 2602
L.Ed.2d 868, 2009-2 Trade Cas. (CCH) P76785 Avila v. Southern California Specialty Care, Inc., 20
(2009) . . . . . . . . . . . . . . . . . . . . . . . 3005 Cal.App.5th 835, 230 Cal.Rptr.3d 42 (2018) . . 3103
Ashou v. Liberty Mutual Fire Ins. Co., 138 Cal.App.4th Avina v. Spurlock, 28 Cal.App.3d 1086, 105 Cal.Rptr.
748, 41 Cal.Rptr.3d 819 (2006) . . . . . . . . . . 456 198 (1972) . . . . . . . . . . . . . . . . . . . . . 360
Ashworth v. Memorial Hospital, 206 Cal.App.3d 1046, Avivi v. Centro Medico Urgente Medical Center, 159
254 Cal.Rptr. 104 (1988). . . . . . . . . . .555, 556 Cal.App.4th 463, 71 Cal.Rptr.3d 707 (2008). . .501,
Askari v. R & R Land Co., 179 Cal.App.3d 1101, 225 502; 600
Cal.Rptr. 285 (1986) . . . . . . . . . . . . . . . . 357 Award Metals, Inc. v. Superior Court, 228 Cal.App.3d
Asplund v. Driskell, 225 Cal.App.2d 705, 37 Cal.Rptr. 1128, 279 Cal.Rptr. 459, 56 Cal. Comp. Cases 213
652 (1964). . . . . . . . . . . . . . . . . . . . .5011 (1991) . . . . . . . . . . . . . . . . . . . . . . . 2804
Assilzadeh v. Cal. Fed. Bank, 82 Cal.App.4th 399, 98 Aweeka v. Bonds, 20 Cal.App.3d 278, 97 Cal.Rptr. 650
Cal.Rptr.2d 176 (2000) . . . . . . . . . . . . . . 4111 (1971) . . . . . . . . . . . . . . . . . . . . . . . 1602
Associated Creditors’ Agency v. Davis, 13 Cal.3d 374, Ayala v. Antelope Valley Newspapers, Inc., 59 Cal.4th
118 Cal.Rptr. 772, 530 P.2d 1084 (1975) . . . . 3709 522, 173 Cal.Rptr.3d 332, 327 P.3d 165, 79 Cal.
Atascadero, City of v. Merrill Lynch, Pierce, Fenner & Comp. Cases 760 (2014) . . . . . . . . . . . . . 3704
Smith, 68 Cal.App.4th 445, 80 Cal.Rptr.2d 329 Ayala v. Arroyo Vista Family Health Center, 160
(1998) . . . . . . . . . . . . . . . . . . . . 317; 1900 Cal.App.4th 1350, 73 Cal.Rptr.3d 486 (2008) . . 506
Atkins v. Bisigier, 16 Cal.App.3d 414, 94 Cal.Rptr. 49 Ayala, 59 Cal.4th 522, 173 Cal.Rptr.3d 332, 327 P.3d
(1971) . . . . . . . . . . . . . . . . . 106; 420; 5002 165. . . . . . . . . . . . . . . . . . . . . . . . .3704
TC-4
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Aydin Corp. v. First State Insurance Co., 18 Cal.4th 1183, Baldwin v. AAA Northern California, Nevada & Utah
77 Cal.Rptr.2d 537, 959 P.2d 1213 (1998) . . . 2303, Ins. Exchange, 1 Cal.App.5th 545, 204 Cal.Rptr.3d
2304 433 (2016). . . . . . . . . . . . . . . . .2330; 3903J
Ayon v. Esquire Deposition Solutions, LLC, 27 Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d
Cal.App.5th 487, 238 Cal.Rptr.3d 185 (2018). .3720 1121 (1972) . . . . . . . . . . . . . . . . . . . . 1124
Azioni de Navigazione Italia v. City of Los Angeles, 31 Baldwin, 1 Cal.App.5th 545, 204 Cal.Rptr.3d
Cal.3d 446, 183 Cal.Rptr. 51, 645 P.2d 102 433 . . . . . . . . . . . . . . . . . . . . . . . . 3903J
(1982). . . . . . . . . . . . . . . . . . . .3706, 3707 Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633,
105 Cal.Rptr. 890, 38 Cal. Comp. Cases 839
B (1972) . . . . . . . . . . . . . . . . . . . 1221; 1223
Baltins, In re Marriage of, 212 Cal.App.3d 66, 260
B.B. v. County of Los Angeles, 10 Cal. 5th 1, 471 P.3d
Cal.Rptr. 403 (1989) . . . . . . . . . . . . . . . . 332
329, 267 Cal.Rptr.3d 203 (2020) . . . . . . . . . 406
Banerian v. O’Malley, 42 Cal.App.3d 604, 116 Cal.Rptr.
B.H. v. County of San Bernardino, 62 Cal.4th 168, 195
919 (1974) . . . . . . . . . . . . . . . . . . . . . 603
Cal. Rptr. 3d 220, 361 P.3d 319 (2015). . . . . .423
Bank of America National Trust & Savings Ass’n v.
B.L.M. v. Sabo & Deitsch, 55 Cal.App.4th 823, 64
Republic Productions, Inc., 44 Cal.App.2d 651, 112
Cal.Rptr.2d 335 (1997) . . . . . . . . . . . . . . 1903
P.2d 972 (1941) . . . . . . . . . . . . . . . . . .2421
Baber, Conservatorship of, 153 Cal.App.3d 542, 200 Cal.
Bankhead v. ArvinMeritor, Inc., 205 Cal.App.4th 68, 139
Rptr. 262 (1984) . . . . . . . . . . . . . . 4004; 4007
Cal.Rptr.3d 849 (2012) . . . 3940; 3942, 3943; 3945;
Bach v. County of Butte, 147 Cal.App.3d 554, 195 3947; 3949
Cal.Rptr. 268 (1983) . . . . . . . . . . . .3001, 3002
Banner Entertainment, Inc. v. Superior Court, 62
Badie v. Bank of America, 67 Cal.App.4th 779, 79 Cal.App.4th 348, 72 Cal.Rptr.2d 598 (1998) . . . 306
Cal.Rptr.2d 273 (1998). . . . . . . . . . . . . . .320
Banuelos v. LA Investment, LLC, 219 Cal.App.4th 323,
Baez v. Southern Pacific Co., 210 Cal.App.2d 714, 26 161 Cal.Rptr.3d 772 (2013) . . . . . . . . 4321, 4322
Cal.Rptr. 899 (1962) . . . . . . . . . . . . . . . 2901
Baral v. Schnitt, 1 Cal.5th 376, 205 Cal.Rptr.3d 475, 376
Bagatti v. Department of Rehabilitation, 97 Cal.App.4th P.3d 604 (2016) . . . . . . . . . . . . . . . . . .1724
344, 118 Cal.Rptr.2d 443, 67 Cal. Comp. Cases 528
Baranchik v. Fizulich, 10 Cal.App.5th 1210, 217
(2002). . . . . . . . . . . . . . . . . . . .2541, 2542
Cal.Rptr.3d 423 (2017) . . . . . . . . . . . . . . 3020
Bagdasarian v. Gragnon, 31 Cal.2d 744, 192 P.2d 935
Barbara A. v. John G., 145 Cal.App.3d 369, 193 Cal.Rptr.
(1948) . . . . . . . . . . . . . . . . . . . . . . . 1920
422 (1983) . . . . . . . . . . . . . . . . . 1302, 1303
Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63
Barela v. Superior Court, 30 Cal.3d 244, 178 Cal.Rptr.
S.Ct. 1062, 87 L.Ed. 1444 (1943) . . . . . . . . 2901
618, 636 P.2d 582 (1981). . . . . . . . . . . . .4321
Bailey v. Filco, Inc., 48 Cal.App.4th 1552, 56 Cal.Rptr.2d
Barenborg v. Sigma Alpha Epsilon Fraternity, 33
333, 61 Cal. Comp. Cases 750 (1996). . . . . .3701
Cal.App.5th 70, 244 Cal.Rptr.3d 680 (2019) . . 3705
Bailey v. Safeway, Inc., 199 Cal.App.4th 206, 131
Bareno v. San Diego Community College Dist., 7
Cal.Rptr.3d 41 (2011). . . . . . . . . . . . . . .3800
Cal.App.5th 546, 212 Cal.Rptr.3d 682, 212 Cal. Rptr.
Baird v. Jones, 21 Cal.App.4th 684, 27 Cal.Rptr.2d 232 3d 682 (2017) . . . . . . . . . . . . . . . 2602; 2620
(1993) . . . . . . . . . . . . . . . . . . . . . . . 3800
Barker v. Fox & Associates, 192 Cal.Rptr.3d 511, 240
Baker v. Burbank-Glendale-Pasadena Airport Auth., 39 Cal. App. 4th 333 . . . . . . . . . .1700, 1701; 1723
Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866
Barker v. Lull Engineering Co., 20 Cal.3d 413, 143
(1985) . . . . . . . . . . . . . . . . . . . . . . . 2030
Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1
Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, (1978). . . . . . . . . . . . . . . . . . . .1202, 1203
228 Cal.Rptr. 206, 721 P.2d 87 (1986). . . . . .1707
Barker, 240 Cal.App.4th 333, 192 Cal. Rptr. 3d
Baker v. Ramirez, 190 Cal.App.3d 1123, 235 Cal.Rptr. 511. . . . . . . . . . . . . . . . . . . . . . . . .1723
857 (1987) . . . . . . . . . . . . . . . . . 2002, 2003
Barnard v. Theobald, 721 F.3d 1069 (9th Cir.
Baker-Smith v. Skolnick, 37 Cal.App.5th 340, 249 2013) . . . . . . . . . . . . . . . . . . . . . . . 3020
Cal.Rptr.3d 514 (2019). . . . . . . . . . . . . . .420
Barnes-Hind, Inc. v. Superior Court, 181 Cal.App.3d 377,
Balassy v. Superior Court, 181 Cal.App.3d 1148, 226 226 Cal.Rptr. 354 (1986) . . . . . . . . . 1703; 1705
Cal.Rptr. 817 (1986) . . . . . . . . . . . . . . . 4340
Barnhill v. Robert Saunders & Co., 125 Cal.App.3d 1,
Balboa Ins. Co. v. Trans Global Equities, 218 Cal.App.3d 177 Cal.Rptr. 803 (1981) . . . . . . . . . . . . .2700
1327, 267 Cal.Rptr. 787, 15 U.S.P.Q.2d (BNA) 1081
(1990) . . . . . . . . . . . . . . . . . . . . . . . 4103
TC-5
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Barone v. City of Springfield, 902 F.3d 1091 (9th Cir. Bay Guardian Co. v. New Times Media LLC, 187
2018) . . . . . . . . . . . . . . . . . . . . . . . 3053 Cal.App.4th 438, 114 Cal.Rptr.3d 392, 2010-2 Trade
Barouh v. Haberman, 26 Cal.App.4th 40, 31 Cal.Rptr.2d Cas. (CCH) P77193 (2010). . . . . . . . . . . .3301
259 (1994). . . . . . . . . . . . . . . . . . . . .1300 Bayer-Bel v. Litovsky, 159 Cal.App.4th 396, 71
Barr v. Scott, 134 Cal.App.2d 823, 286 P.2d 552 Cal.Rptr.3d 518 (2008). . . . . . . . . . . . . . .406
(1955). . . . . . . . . . . . . . . . . . . . . . . .404 Bayscene Resident Negotiators v. Bayscene Mobilehome
Barragan v. Workers’ Comp. Appeals Bd., 195 Park, 15 Cal.App.4th 119, 18 Cal.Rptr.2d 626
Cal.App.3d 637, 240 Cal.Rptr. 811, 52 Cal. Comp. (1993). . . . . . . . . . . . . . . . . . . . . . . .332
Cases 467 (1987) . . . . . . . . . . . . . . . . . 2800 Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 117
Barrera v. State Farm Mutual Automobile Insurance Co., S.Ct. 1382, 137 L.Ed.2d 626 (1997). . . . . . .3002
71 Cal.2d 659, 79 Cal.Rptr. 106, 456 P.2d 674 Beagle v. Vasold, 65 Cal.2d 166, 53 Cal.Rptr. 129, 417
(1969) . . . . . . . . . . . . . . . . . . . . . . . 2308 P.2d 673 (1966) . . . . . . . . . . . . . . . . . .3925
Barrett v. Bank of Am., 183 Cal.App.3d 1362, 229 Beagle; People v., 6 Cal.3d 441, 99 Cal.Rptr. 313, 492
Cal.Rptr. 16 (1986) . . . . . . . . . . . . . . . . 4111 P.2d 1 (1972) . . . . . . . . . . . . . . . . . . . .212
Barrett v. Superior Court, 222 Cal.App.3d 1176, 272 Beal Bank, SSB v. Arter & Hadden, LLP, 42 Cal.4th 503,
Cal.Rptr. 304 (1990) . . . . . . . . . . . .3921, 3922 66 Cal.Rptr.3d 52, 167 P.3d 666 (2007) . . . 610, 611
Barry v. Raskov, 232 Cal.App.3d 447, 283 Cal.Rptr. 463 Beauchamp v. Los Gatos Golf Course, 273 Cal.App.2d
(1991) . . . . . . . . . . . . . . . . . . . . . . . 3713 20, 77 Cal.Rptr. 914 (1969) . . . . . . . . . . . 1001
Barry v. Turek, 218 Cal.App.3d 1241, 267 Cal.Rptr. 553 Beaumont-Jacques v. Farmers Group, Inc., 217
(1990). . . . . . . . . . . . . . . . . . . . . . .503A Cal.App.4th 1138, 159 Cal.Rptr.3d 102 (2013) . 3704
Barthelemy v. Orange County Flood Control Dist., 65 Beck v. American Health Group International, Inc., 211
Cal.App.4th 558, 76 Cal.Rptr.2d 575, 76 Cal. Rptr. 2d Cal.App.3d 1555, 260 Cal.Rptr. 237 (1989) . . . 306
575 (1998). . . . . . . . . . . . . . . . . . . .3509A Beck Development Co. v. Southern Pacific
Bartholomew v. YouTube, LLC., 17 Cal.App.5th 1217, Transportation Co., 44 Cal. App. 4th 1160, 52 Cal.
225 Cal.Rptr.3d 917, 225 Cal. Rptr. 3d 917 Rptr. 2d 518 (1996) . . . . . . . . . . . . . . . 3903F
(2017) . . . . . . . . . . . . . . . . . . . . . . . 1701 Beckwith v. Dahl, 205 Cal.App.4th 1039, 141 Cal.Rptr.3d
Bartlett, State ex rel. v. Miller, 243 Cal.App.4th 1398, 142 (2012) . . . . . . . . . . 1900–1903; 1908; 2205
197 Cal.Rptr.3d 673 (2016) . . . . . . . . . . . 4600 Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village
Barton v. Alexander Hamilton Life Ins. Co. of America, Square Venture Partners, 52 Cal.App.4th 867, 60
110 Cal.App.4th 1640, 3 Cal.Rptr.3d 258 Cal.Rptr.2d 830 (1997) . . . . . . . . . . 2202; 2204
(2003) . . . . . . . . . . . 3102A, 3102B; 3943–3948 Beeson; People v., 99 Cal.App.4th 1393, 122 Cal.Rptr.2d
Barton v. Owen, 71 Cal.App.3d 484, 139 Cal.Rptr. 494 384 (2002). . . . . . . . . . . . . . . . . . . . .4005
(1977) . . . . . . . . . . . . . . . . . . . . .430; 506 Behr v. County of Santa Cruz, 172 Cal.App.2d 697, 342
Bartosh v. Banning, 251 Cal.App.2d 378, 59 Cal.Rptr. P.2d 987 (1959) . . . . . . . . . . . . . . . . . .5022
382 (1967) . . . . . . . . . . . . . . . . . 1300; 1304 Behrens v. Fayette Manufacturing Co., 4 Cal.App.4th
Bashi v. Wodarz, 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 1567, 7 Cal.Rptr.2d 264, 57 Cal. Comp. Cases 255
635 (1996) . . . . . . . . . . . . . . . . . . . . . 403 (1992) . . . . . . . . . . . . . . . . . . . . . . . 2803
Bate v. Marsteller, 175 Cal.App.2d 573, 346 P.2d 903 Belfiore-Braman v. Rotenberg, 25 Cal.App.5th 234, 235
(1959) . . . . . . . . . . . . . . . . . . . . . . . 3710 Cal.Rptr.3d 629 (2018). . . . . . . . . . . . . . .500
Batze v. Safeway, Inc., 10 Cal.App.5th 440, 216 Bell v. Bayerische Motoren Werke Aktiengesellschaft,
Cal.Rptr.3d 390 (2017). . . . . . . .457; 2720, 2721 181 Cal.App.4th 1108, 105 Cal.Rptr.3d 485
Baugh v. Beatty, 91 Cal.App.2d 786, 205 P.2d 671 (2010) . . . . . . . . . . . . . . . . . . . . . . . 1204
(1949) . . . . . . . . . . . . . . . . . . . . . 461, 462 Bellamy v. Appellate Department, 50 Cal.App.4th 797,
Baughman v. Walt Disney World Co., 217 Cal.App.4th 57 Cal.Rptr.2d 894 (1996) . . . . . . . . . . . . .500
1438, 159 Cal.Rptr.3d 825 (2013). . . . .3060; 3070 Bellman v. San Francisco High School Dist., 11 Cal.2d
Baumgardner v. Yusuf, 144 Cal.App.4th 1381, 51 576, 81 P.2d 894 (1938) . . . 3903A; 3903C; 3903E;
Cal.Rptr.3d 277 (2006). . . . . . . . . . . . . . .510 3905A; 3920
Bause v. Anthony Pools, Inc., 205 Cal.App.2d 606, 23 Belton v. Bowers Ambulance Serv., 20 Cal.4th 928, 86
Cal.Rptr. 265 (1962) . . . . . . . . . . . . . . . 4524 Cal. Rptr. 2d 107, 978 P.2d 591 (1999). . .457; 555,
Baxter v. Superior Court, 19 Cal.3d 461, 138 Cal.Rptr. 556; 610
315, 563 P.2d 871 (1977). . . . . . . . . . . . .3920 Belz v. Clarendon America Ins. Co., 158 Cal.App.4th
Bay Development, Ltd. v. Superior Court, 50 Cal.3d 615, 69 Cal.Rptr.3d 864 (2007) . . . . . . 2320–2322
1012, 269 Cal.Rptr. 720, 791 P.2d 290 (1990) . 3801
TC-6
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Ben C., Conservatorship of, 40 Cal.4th 529, 53 Cal. Rptr. Bihun v. AT&T Information Systems, Inc., 13
3d 856, 150 P.3d 738 (2007) . . . . . . . . . . . 4005 Cal.App.4th 976, 16 Cal.Rptr.2d 787 (1993). . .204;
Benavides v. State Farm General Ins. Co., 136 2521A–2521C; 2522A–2522C; 3903P
Cal.App.4th 1241, 39 Cal.Rptr.3d 650 (2006). .2331 Billington v. Interinsurance Exchange of Southern
Bender v. County of Los Angeles, 217 Cal.App.4th 968, California, 71 Cal.2d 728, 79 Cal.Rptr. 326, 456 P.2d
159 Cal.Rptr.3d 204 (2013) . . . . . . . . . . . 3066 982 (1969). . . . . . . . . . . . . . . . . . . . .2321
Bennett v. Letterly, 74 Cal.App.3d 901, 141 Cal.Rptr. 682 Bily v. Arthur Young & Co., 3 Cal.4th 370, 11 Cal.Rptr.2d
(1977) . . . . . . . . . . . . . . . . . . . . .422; 427 51, 834 P.2d 745 (1992) . 1903, 1904; VF-1900; VF-
Bennett v. Rancho California Water Dist., 35 Cal.App.5th 1903
908, 248 Cal.Rptr.3d 21 (2019) . . . . . . . . . 4603 Bingham v. CTS Corp., 231 Cal.App.3d 56, 282 Cal.Rptr.
Benson v. Southern California Auto Sales, Inc., 239 161, 56 Cal. Comp. Cases 362, 15 O.S.H. Cas. (BNA)
Cal.App.4th 1198, 192 Cal.Rptr.3d 67 (2015) . .4701 1106 (1991) . . . . . . . . . . . . . . . . . . . . 2804
Bently Reserve LP v. Papaliolios, 218 Cal.App.4th 418, Bird v. Saenz, 28 Cal.4th 910, 123 Cal. Rptr. 2d 465, 51
160 Cal.Rptr.3d 423 (2013) . . . . . . . . . . . 1707 P.3d 324 (2002) . . . . . . . . . . . . . . . . . .1621
Benvenuto, Conservatorship of, 180 Cal.App.3d 1030, Birke v. Oakwood Worldwide, 169 Cal.App.4th 1540, 87
226 Cal.Rptr. 33 (1986) . . . . . . . . . . 4000; 4002 Cal. Rptr. 3d 602 (2009). . . . . . . . . .2020, 2021
Benwell v. Dean, 227 Cal.App.2d 226, 38 Cal.Rptr. 542 Birkenfeld v. Berkeley, 17 Cal.3d 129, 130 Cal.Rptr. 465,
(1964). . . . . . . . . . . . . . . . . . . . . . . .414 550 P.2d 1001 (1976). . . . . . . . . . . . . . .4325
Berge v. International Harvester Co., 142 Cal.App.3d Biron v. City of Redding, 225 Cal.App.4th 1264, 170
152, 190 Cal.Rptr. 815 (1983) . . . . . . . . . 3903N Cal.Rptr.3d 848 (2014) . . . . . . . . . . . . . . 1111
Berger v. Varum, 35 Cal.App.5th 1013, 248 Cal.Rptr.3d Bishop v. Hyundai Motor America, 44 Cal.App.4th 750,
51 (2019). . . . . . . . . . . . . . . . . .3610; 4200 52 Cal.Rptr.2d 134 (1996) . . . . . 3202; 3242–3244
Bermudez v. Ciolek, 237 Cal.App.4th 1311, 188 Cal. Bissett v. Burlington Northern Railroad Co., 969 F.2d 727
Rptr. 3d 820 (2015). . . . . . . . . . . . . . .3903A (8th Cir. 1992) . . . . . . . . . . . . . . . . . . 2941
Bernson v. Browning-Ferris Industries, 7 Cal.4th 926, 30 Bjorndal v. Superior Court, 211 Cal.App.4th 1100, 150
Cal.Rptr.2d 440, 873 P.2d 613 (1994). . . . . . .455 Cal.Rptr.3d 405 (2012) . . . . . . . . . . . 457; 4601
Berryman v. Bayshore Construction Co., 207 Cal.App.2d Black v. Bank of America N.T. & S.A., 30 Cal.App.4th 1,
331, 24 Cal.Rptr. 380 (1962). . . . . . . . . . .3965 35 Cal.Rptr.2d 725 (1994) . . . . . . . . . . . . 3602
Bert G. Gianelli Distrib. Co. v. Beck & Co., 172 Black v. Sullivan, 48 Cal.App.3d 557, 122 Cal.Rptr. 119
Cal.App.3d 1020, 219 Cal.Rptr. 203, 1985-2 Trade (1975) . . . . . . . . . . . . . . . . . . . . . . . 3711
Cas. (CCH) P66851 (1985). . . . .3404, 3405; 3410 Blackwell v. American Film Co., 189 Cal. 689, 209 P. 999
Bertero v. National General Corp., 13 Cal.3d 43, 118 (1922) . . . . . . . . . . . . . . . . . . . . . . . 3921
Cal.Rptr. 184, 529 P.2d 608 (1974) . . . 1501; 1510; Blackwell v. Hurst, 46 Cal.App.4th 939, 54 Cal.Rptr.2d
1530; 3940; 3942; 3949; 5000 209 (1996) . . . . . . . . . . . . . . . . . . . . . 518
Bertsch v. Mammoth Community Water Dist., 247 Blackwell v. Vasilas, 244 Cal.App.4th 160, 197
Cal.App.4th 1201, 202 Cal.Rptr.3d 757 Cal.Rptr.3d 753 (2016) . . . . . . . . . . . . . . 3704
(2016) . . . . . . . . . . . . . . . . . . . . . 470–472 Blain v. Doctor’s Co., 222 Cal.App.3d 1048, 272
Beverly Way Associates v. Barham, 226 Cal.App.3d 49, Cal.Rptr. 250 (1990) . . . . . . . . . . . . . . . 3920
276 Cal.Rptr. 240 (1990). . . . . . . . . . . . . .311 Blake v. E. Thompson Petroleum Repair Co., 170
Bevill v. Zoura, 27 Cal.App.4th 694, 32 Cal.Rptr.2d 635 Cal.App.3d 823, 216 Cal.Rptr. 568, 216 Cal. Rptr. 568
(1994) . . . . . . . . . . . . . . . . . . . . . . . 4303 (1985) . . . . . . . . . . . . . . . . . . . . 105; 5001
Bevis v. Terrace View Partners, LP, 33 Cal.App.5th 230, Blake v. Moore, 162 Cal.App.3d 700, 208 Cal.Rptr. 703
244 Cal.Rptr.3d 797 (2019) . . . . . . . . . . . . 325 (1984). . . . . . . . . . . . . . . . . . . . . . . .724
Bewley v. Riggs, 262 Cal.App.2d 188, 68 Cal.Rptr. 520 Blank v. Kirwan, 39 Cal.3d 311, 216 Cal.Rptr. 718, 703
(1968). . . . . . . . . . . . . . . . . . . . . . . .700 P.2d 58, 1985-2 Trade Cas. (CCH) P66741
Beyda v. City of Los Angeles, 65 Cal.App.4th 511, 76 (1985) . . . . . . . . . . . . . . . . . . . . . . . 3430
Cal.Rptr.2d 547 (1998) . . . . . 2521B; 2522B; 2524 Blankenheim v. E. F. Hutton, Co., Inc., 217 Cal.App.3d
Bierbower v. FHP, Inc., 70 Cal.App.4th 1, 82 Cal.Rptr.2d 1463, 266 Cal.Rptr. 593 (1990) . . . . . . . . . 1908
393 (1999). . . . . . . . . . . . . . . . . . . . .1723 Blanks v. Seyfarth Shaw LLP, 171 Cal.App.4th 336, 89
Bigbee v. Pacific Telephone and Telegraph Co., 34 Cal.3d Cal. Rptr. 3d 710 (2009) . . . . . . . . . . . 600–602
49, 192 Cal.Rptr. 857, 665 P.2d 947 (1983) . . . 411 Blaser v. State Teachers’ Retirement System, 37
Bigler-Engler v. Breg, Inc., 7 Cal.App.5th 276, 213 Cal.App.5th 349, 249 Cal.Rptr.3d 701 (2019) . . 454
Cal.Rptr.3d 82 (2017) . . . 1200; 1205; 1207B; 1901; Blecker v. Wolbart, 167 Cal.App.3d 1195, 213 Cal.Rptr.
3905A 781 (1985). . . . . . . . . . . . . . . . . . . . .3800
TC-7
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Block v. Tobin, 45 Cal.App.3d 214, 119 Cal.Rptr. 288 Boschma v. Home Loan Center, Inc., 198 Cal.App.4th
(1975) . . . . . . . . . . . . . . . . . . . . . . . 1924 230, 129 Cal.Rptr.3d 874 (2011). . . . . . . . .1901
BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 Bosetti v. United States Life Ins. Co. in the City of New
S.Ct. 1589, 134 L.Ed.2d 809 (1996) . . . 3940; 3942, York, 175 Cal.App.4th 1208, 96 Cal.Rptr.3d 744
3943; 3945; 3947; 3949 (2009). . . . . . . . . . . . . . . . . . . .2330, 2331
Board of Public Service Comm’rs v. Spear, 65 Cal.App. Bossi v. State of California, 119 Cal.App.3d 313, 174
214, 223 P. 423 (1924) . . . . . . . . . . . . . . 4341 Cal.Rptr. 93 (1981) . . . . . . . . . . . . . . . . 1122
Boccalero v. Wadleigh, 113 Cal.App. 376, 298 P. 526 Boston LLC v. Juarez, 245 Cal.App.4th 75, 199 Cal. Rptr.
(1931). . . . . . . . . . . . . . . . . . . . . . . .700 3d 452 (2016). . . . . . . . . . . . . . . . . . .4304
Boccato v. City of Hermosa Beach, 29 Cal.App.4th 1797, Bounds v. Superior Court, 229 Cal.App.4th 468, 177 Cal.
35 Cal.Rptr.2d 282 (1994) . . . . . . . . . . . . 3066 Rptr. 3d 320 (2014). . . . . . . . . . . . . . . .3100
Bock v. Hansen, 225 Cal.App.4th 215, 170 Cal.Rptr.3d Bove v. Beckman, 236 Cal.App.2d 555, 46 Cal.Rptr. 164
293 (2014) . . . . . . . . . . . . . . . . . 1602; 1903 (1965). . . . . . . . . . . . . . . . . . . . . . . .701
Bockrath v. Aldrich Chemical Co., 21 Cal.4th 71, 86 Bowman v. Wyatt, 186 Cal.App.4th 286, 111 Cal.Rptr.3d
Cal.Rptr.2d 846, 980 P.2d 398 (1999) . . . . 430; 435 787 (2010) . . . . . . . 430; 2923; 3706; 3708; 3713
Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788, 108 Bowmer v. H. C. Louis, Inc., 243 Cal.App.2d 501, 52
Cal.Rptr.3d 806, 230 P.3d 342 (2010). . .3920; 3934 Cal.Rptr. 436 (1966) . . . . . . . . . . . . . . . . 335
Boeken v. Philip Morris USA Inc., 217 Cal.App.4th 992, Boyd v. Bevilacqua, 247 Cal.App.2d 272, 55 Cal.Rptr.
159 Cal.Rptr.3d 195 (2013) . . . . . . . . . . . 3921 610 (1966). . . . . . . . . . . . . . . . . . . . .3712
Boeken, 48 Cal.4th 788, 108 Cal.Rptr.3d 806, 230 P.3d Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.
342. . . . . . . . . . . . . . . . . . . . . . . . .3920 Ct. 2510, 101 L. Ed. 2d 442 (1988). . . .1246, 1247
Boeken, 217 Cal.App.4th 992, 159 Cal.Rptr.3d Bracisco v. Beech Aircraft Corp., 159 Cal.App.3d 1101,
195. . . . . . . . . . . . . . . . . . . . . . . . .3921 206 Cal.Rptr. 431 (1984) . . . . . . . . . 1203, 1204
Bohemian Club v. Fair Employment & Housing Com., Bradfield v. Trans World Airlines, Inc., 88 Cal.App.3d
187 Cal.App.3d 1, 231 Cal.Rptr. 769 (1986) . . 2501 681, 152 Cal.Rptr. 172 (1979) . . . . . . 405; 1207A
Boicourt v. Amex Assurance Co., 78 Cal.App.4th 1390, Bradford v. Winter, 215 Cal.App.2d 448, 30 Cal.Rptr. 243
93 Cal.Rptr.2d 763 (2000) . . . . . . . . . . . . 2334 (1963). . . . . . . . . . . . . . . . . . . . . . .530A
Bolen v. Woo, 96 Cal.App.3d 944, 158 Cal.Rptr. 454 Bradsher v. Missouri Pacific Railroad, 679 F.2d 1253 (8th
(1979). . . . . . . . . . . . . . . . . . . . . . . .517 Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 2924
Bomberger v. McKelvey, 35 Cal.2d 607, 220 P.2d 729 Brady v. Bayer Corp., 26 Cal.App.5th 1156, 237 Cal.
(1950) . . . . . . . . . . . . . . . . . . . . . . . 4502 Rptr. 3d 683 (2018). . . . . . . . . . . . . . . .4700
Bonadiman-McCain, Inc. v. Snow, 183 Cal.App.2d 58, 6 Brady v. Calsol, Inc., 241 Cal.App.4th 1212, 194
Cal.Rptr. 52 (1960). . . . . . . . . . . . . . . . .602 Cal.Rptr.3d 243, 80 Cal. Comp. Cases 1416
Bonanno v. Central Contra Costa Transit Authority, 30 (2015) . . . . . . . . . . . . . . . . . . . 1200; 1208
Cal.4th 139, 132 Cal.Rptr.2d 341, 65 P.3d 807 Brakke v. Economic Concepts, Inc., 213 Cal.App.4th
(2003). . . . . . . . . . . . . . . . . . . .1102; 1125 761, 153 Cal.Rptr.3d 1 (2013). . . . . . .1904; 1908
Bondi v. Jewels by Edwar, Ltd., 267 Cal.App.2d 672, 73 Brand v. Hyundai Motor America, 226 Cal.App.4th 1538,
Cal.Rptr. 494, 1968 Trade Cas. (CCH) P72655 173 Cal.Rptr.3d 454 (2014) . . . . . . . . . . . 3210
(1968) . . . . . . . . . . . . . . . . . . . . . . . 3407 Brandelius v. City and County of San Francisco, 47
Bonivert v. City of Clarkston, 883 F.3d 865 (9th Cir. Cal.2d 729, 306 P.2d 432 (1957) . . . . . . . . . 907
2018) . . . . . . . . . . . . . 3020; 3023; 3025–3027 Brandon v. Maricopa County, 849 F.3d 837 (9th Cir.
Booth v. Santa Barbara Biplane Tours, LLC, 158 2017) . . . . . . . . . . . . . . . . . . . . . . . 3053
Cal.App.4th 1173, 70 Cal.Rptr.3d 660 (2008) . . 451 Brandon & Tibbs v. George Kevorkian Accountancy
Borenkraut v. Whitten, 56 Cal.2d 538, 15 Cal.Rptr. 635, Corp., 226 Cal.App.3d 442, 277 Cal.Rptr. 40, 277 Cal.
364 P.2d 467 (1961) . . . . . . . . . . . . . . . . 414 Rptr. 40 (1990) . . . . . . . . . . . . . 350, 351; 358
Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Brandon G. v. Gray, 111 Cal.App.4th 29, 3 Cal.Rptr.3d
Cal.Rptr. 302, 563 P.2d 858 (1977) . . . . . . . 3920 330 (2003). . . . . . . . . . . . . . . . . . . . .1925
Borman v. Brown, 59 Cal.App.5th 1048, 273 Cal.Rptr.3d Brandt v. Superior Court, 37 Cal.3d 813, 210 Cal.Rptr.
868 (2021). . . . . . . . . . . . . . . . . . . . .1903 211, 693 P.2d 796 (1985). . . . . . . . . . . . .2350
Borrayo v. Avery, 2 Cal.App.5th 304, 205 Cal.Rptr.3d Brewer v. Second Baptist Church of Los Angeles, 32
825 (2016) . . . . . . . . . . . . . . . . . . . . . 501 Cal.2d 791, 197 P.2d 713 (1948). .3940; 3942; 3949
Borsuk v. Appellate Division of Superior Court, 242 Brewer v. Teano, 40 Cal.App.4th 1024, 47 Cal.Rptr.2d
Cal.App.4th 607, 195 Cal. Rptr. 3d 581 (2015) . 4303 348 (1995) . . . . . . . . . . . . . . . . . . . . . 432
TC-8
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Brian S., In re, 130 Cal.App.3d 523, 181 Cal.Rptr. 778 Brown; People v., 225 Cal.App.3d 585, 275 Cal.Rptr. 268
(1982) . . . . . . . . . . . . . . . . . . . . . . . 2102 (1990) . . . . . . . . . . . . . . . . . . . . . . . 5018
Brice v. National Railroad Passenger Corp., 664 F.Supp. Bryan v. MacPherson, 630 F.3d 805 (9th Cir.
220 (D. Md. 1987). . . . . . . . . . . . .2941, 2942 2010) . . . . . . . . . . . . . . . . . . . . . . . 3020
Bridges v. Cal-Pacific Leasing Co., 16 Cal.App.3d 118, Bryant v. Glastetter, 32 Cal.App.4th 770, 38 Cal.Rptr.2d
93 Cal.Rptr. 796 (1971) . . . . . . . . . . . . . 2210 291, 60 Cal. Comp. Cases 182 (1995) . . . . . . 453
Brigante v. Huang, 20 Cal.App.4th 1569, 25 Cal.Rptr.2d Buckner v. Milwaukee Electric Tool Corp., 222
354 (1993) . . . . . . . . . . . . . . . . . . . . . 210 Cal.App.4th 522, 166 Cal.Rptr.3d 202 (2013) . 1205;
Briggs v. Electronic Memories & Magnetics Corp., 53 1244
Cal.App.3d 900, 126 Cal.Rptr. 34 (1975) . . . . 4302 Budaeff v. Huber, 194 Cal.App.2d 12, 14 Cal.Rptr. 729
Brincko v. Rio Props., 2013 U.S. Dist. LEXIS (1961) . . . . . . . . . . . . . . . . . . . . . . . 4327
5986 . . . . . . . . . . . . . . . . . . . . . . . . 4207 Budd v. Nixen, 6 Cal.3d 195, 98 Cal.Rptr. 849, 491 P.2d
Brinton v. Bankers Pension Services, Inc., 76 433 (1971). . . . . . . . . . . . . . . .600; 610, 611
Cal.App.4th 550, 90 Cal.Rptr.2d 469 (1999) . . . 301 Buist v. C. Dudley De Velbiss Corp., 182 Cal.App.2d
Briscoe v. Reader’s Digest Assn., 4 Cal.3d 529, 93 325, 6 Cal.Rptr. 259 (1960) . . . . . . . . . . . 1910
Cal.Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1 Bullis v. Security Pac. Nat’l Bank, 21 Cal.3d 801, 148
(1971). . . . . . . . . . . . . . . . . . . .1801, 1802 Cal. Rptr. 22, 582 P.2d 109 (1978). . . . .3935; VF-
Brizzolari v. Market Street Ry. Co., 7 Cal.App.2d 246, 46 400–VF-409; VF-411; VF-500–VF-502; VF-
P.2d 783 (1935) . . . . . . . . . . . . . . . . . . 905 702–VF-704; VF-1000–VF-1002; VF-1100, VF-
Brome v. California Highway Patrol, 44 Cal.App.5th 786, 1101; VF-1200, VF-1201; VF-1203–VF-1205; VF-
258 Cal.Rptr.3d 83, 85 Cal. Comp. Cases 103 1300–VF-1302; VF-1303A, VF-1303B;
(2020) . . . . . . . . . . . . . . . . . . . . . . . 2401 VF-1400–VF-1407; VF-1500–VF-1504; VF-1600–VF-
Brooks v. Clark Cnty., 828 F.3d 910 (9th Cir. 1606; VF-1700–VF-1705; VF-1720, VF-1721; VF-
2016) . . . . . . . . . . . . . . . . . . . . . . . 3020 1800–VF-1804; VF-1807; VF-1900–VF-1903; VF-
2000–VF-2006; VF-2100;
Brooks v. Eugene Burger Management Corp., 215
Cal.App.3d 1611, 264 Cal.Rptr. 756 (1989) . . . 1000 VF-2200–VF-2203; VF-2301; VF-2303; VF-2404–VF-
2408; VF-2500–VF-2505; VF-2506A–VF-2506C;
Brown v. Berman, 203 Cal.App.2d 327, 21 Cal.Rptr. 401
VF-2507A–VF-2507C; VF-2508–VF-2515; VF-
(1962) . . . . . . . . . . . . . . . . . . . . . . . 4900
2600–VF-2602; VF-2700–VF-2705;
Brown v. George Pepperdine Foundation, 23 Cal.2d 256,
VF-2800–VF-2805; VF-2900, VF-2901; VF-3000–VF-
143 P.2d 929 (1943). . . . . . . . . . . . .903; 1001
3002; VF-3010–VF-3013; VF-3020–VF-3023; VF-
Brown v. Goldstein, 34 Cal.App.5th 418, 246 Cal.Rptr.3d
3030–VF-3035; VF-3100–VF-3107; VF-3200; VF-
161 (2019) . . . . . . . . . . . . . . . . . . . . . 314
3202; VF-3206; VF-3300–VF-3307; VF-3400–VF-
Brown v. Grimes, 192 Cal.App.4th 265, 120 Cal. Rptr. 3d
3409; VF-3500–VF-3502; VF-3700; VF-3905, VF-
893 (2011) . . . . . . 303; VF-300; VF-303, VF-304
3906; VF-4200–VF-4202; VF-4400; VF-4600–VF-
Brown v. Guarantee Ins. Co., 155 Cal.App.2d 679, 319 4602
P.2d 69 (1957) . . . . . . . . . . . . . . . . . . 2330
Bullock v. Philip Morris USA, Inc., 159 Cal.App.4th 655,
Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 257 71 Cal.Rptr.3d 775 (2008) . 3940; 3942, 3943; 3945;
Cal.Rptr. 708, 771 P.2d 406 (1989) . . . 1700; 1702; 3947; 3949
1704; 1723; 1802
Bullock v. Philip Morris USA, Inc., 198 Cal.App.4th 543,
Brown v. Poway Unified School Dist., 4 Cal.4th 820, 15 131 Cal. Rptr. 3d 382 (2011) . . . 3940; 3942, 3943;
Cal.Rptr.2d 679, 843 P.2d 624 (1993) . . . 417; 518; 3945; 3947; 3949
1100
Bundren v. Superior Court, 145 Cal.App.3d 784, 193
Brown v. Ransweiler, 171 Cal.App.4th 516, 89 Cal.Rptr. 671 (1983). . . . . . . . . . . .1602; 1605
Cal.Rptr.3d 801 (2009) . . . . . . . . . . 440; 1305A
Burbank v. National Casualty Co., 43 Cal.App.2d 773,
Brown v. Smith, 55 Cal.App.4th 767, 64 Cal.Rptr.2d 301 111 P.2d 740 (1941) . . . . . . . . . . . . 3704, 3705
(1997). . . . . . . . . . . . . . . . . . . .2548, 2549
Burbank-Glendale-Pasadena Airport Authority v.
Brown v. Superior Court, 180 Cal.App.3d 701, 226 Hensler, 83 Cal.App.4th 556, 99 Cal.Rptr.2d 729
Cal.Rptr. 10 (1986). . . . . . . . . . . . . . . . .216 (2000) . . . . . . . . . . . . . . . . . . . . . . . 3500
Brown, 4 Cal.4th 820, 15 Cal.Rptr.2d 679, 843 P.2d Burch v. Superior Court, 168 Cal.Rptr.3d 81, 223
624. . . . . . . . . . . . . . . . . . . . . . . . .1100 Cal.App.4th 1411 . . . . . . . . . . . . . . . . . 4510
Brown, 23 Cal.2d 256, 143 P.2d 929 . . . . . . . . 1001 Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d
Brown, In re Marriage of, 15 Cal.3d 838, 126 Cal.Rptr. 615, 831 P.2d 1197 (1992) . . . . . . . . . . . . 1620
633, 544 P.2d 561, 94 A.L.R.3d 164 (1976).602, 603
TC-9
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Burgon v. Kaiser Foundation Hospitals, 93 Cal.App.3d Cadence Design Systems, Inc. v. Avant! Corp., 29 Cal.4th
813, 155 Cal.Rptr. 763 (1979). . . . . . . . . . .555 215, 127 Cal.Rptr.2d 169, 57 P.3d 647, 65 U.S.P.Q.2d
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 1678 (2002) . . . . . . . . . . . . . . . . . . . . 4421
S.Ct. 2257, 141 L.Ed.2d 633, 170 A.L.R. Fed. 677 Calandri v. Ione Unified School Dist., 219 Cal.App.2d
(1998) . . . . . . . . . . . . . . . . . . . . . . . 2520 542, 33 Cal.Rptr. 333 (1963) . . . . . . . . . . . 202
Burns v. Neiman Marcus Group, Inc., 173 Cal.App.4th Caldera v. Department of Corrections & Rehabilitation,
479, 93 Cal.Rptr.3d 130 (2009) . . . . . . . . . . 400 25 Cal.App.5th 31, 235 Cal.Rptr.3d 262 (2018).2524
Burrill v. Nair, 217 Cal.App.4th 357, 158 Cal. Rptr. 3d Calderon v. Glick, 131 Cal.App.4th 224, 31 Cal.Rptr.3d
332 (2013). . . . . . . . . . . . . . . . . . . . .1724 707 (2005) . . . . . . . . . . . . . . . . . . . . 503A
Burton v. Sanner, 207 Cal.App.4th 12, 142 Cal.Rptr.3d Caldwell v. A.R.B., Inc., 176 Cal.App.3d 1028, 222
782 (2012). . . . . . . . . . . . . . . . . .219; 1304 Cal.Rptr. 494 (1986) . . . . . . . . . . . . . . . 3727
Buss v. Superior Court, 16 Cal.4th 35, 65 Cal. Rptr. 2d Caldwell v. City & Cty. of San Francisco, 889 F.3d 1105
366, 939 P.2d 766 (1997). . . . . . . . . . . . .2351 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . 3052
Bustos v. Wells Fargo Bank, N.A., 39 Cal.App.5th 369, Caldwell v. Paramount Unified School Dist., 41
252 Cal.Rptr.3d 172 (2019) . . . . . . . . . . . 4910 Cal.App.4th 189, 48 Cal.Rptr.2d 448 (1995) . . 2570
Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, Caldwell v. Walker, 211 Cal.App.2d 758, 27 Cal.Rptr.
65 A.L.R.2d 1 (1958) . . . . . . . . . . . . . . . 705 675 (1963). . . . . . . . . . . . . . . . . . . . .2003
Butler v. Ingalls Shipbuilding, 89 F.3d 582 (9th Cir. Caldwell, 889 F.3d 1105. . . . . . . . . . . . . . .3052
1996) . . . . . . . . . . . . . . . . . . . . . . . 1247 Calemine v. Samuelson, 171 Cal.App.4th 153, 89
Butte Fire Cases, 24 Cal.App.5th 1150, 235 Cal.Rptr.3d Cal.Rptr.3d 495 (2009) . . . . . . . . . . . . . . 1910
228 (2018) . . . . . . . . . . . . . . . . . . . . . 201 Calhoon v. Lewis, 81 Cal.App.4th 108, 96 Cal.Rptr.2d
Buxbom v. Smith, 23 Cal.2d 535, 145 P.2d 305 394 (2000). . . . . . . . . . . . . . . . . . . . .1010
(1944). . . . . . . . . . . . . . . . . . . . . . . .361 Caliber Bodyworks, Inc. v. Superior Court, 134
Buzgheia v. Leasco Sierra Grove, 60 Cal.App.4th 374, 70 Cal.App.4th 365, 36 Cal.Rptr.3d 31 (2005) . . . 2704
Cal. Rptr. 2d 427 (1997) . . . . . . . . . . . . . 4560 California Food Service Corp., Inc. v. Great American
Byrne v. City and County of San Francisco, 113 Insurance Co., 130 Cal.App.3d 892, 182 Cal.Rptr. 67
Cal.App.3d 731, 170 Cal.Rptr. 302 (1980) . 701; 710 (1982). . . . . . . . . . . . . . . . . . . . . . . .302
California Real Estate Loans, Inc. v. Wallace, 18
C Cal.App.4th 1575, 23 Cal.Rptr.2d 462 (1993). .3703
California School Employees Assn. v. Personnel
C.A. v. William S. Hart Union High School Dist., 53
Commission, 30 Cal.App.3d 241, 106 Cal.Rptr. 283
Cal.4th 861, 138 Cal.Rptr.3d 1, 270 P.3d 699
(1973) . . . . . . . . . . . . . . . . . . . . . . . 3963
(2012). . . . . . . . . . . . . . . . . . . . . . . .426
California Shoppers, Inc. v. Royal Globe Insurance Co.,
C. A. Crane v. East Side Canal & Irrigation Co., 6
175 Cal.App.3d 1, 221 Cal.Rptr. 171 (1985). . .352,
Cal.App.2d 361, 44 P.2d 455 (1935) . . . . . . . 324
353; 2332; 2336
C & K Engineering Contractors v. Amber Steel Co., Inc.,
Callahan v. City and County of San Francisco, 15
23 Cal.3d 1, 151 Cal.Rptr. 323, 587 P.2d 1136
Cal.App.3d 374, 93 Cal.Rptr. 122 (1971) . . . . 1121
(1978). . . . . . . . . . . . . . . . . . . . . . . .303
Callahan v. Gibson, Dunn & Crutcher LLP, 194
C.F. Bolster Co. v. J.C. Boespflug Constr. Co., 167
Cal.App.4th 557, 125 Cal.Rptr.3d 120 (2011) . . 610,
Cal.App.2d 143, 334 P.2d 247 (1959). . .4520; 4540
611
C. Norman Peterson Co. v. Container Corp. of Am., 172
Calvillo-Silva v. Home Grocery, 19 Cal.4th 714, 80
Cal.App.3d 628, 218 Cal.Rptr. 592 (1985) . . . 4500;
Cal.Rptr.2d 506, 968 P.2d 65 (1998). . . . . . .1304
4523; 4542
Cameron v. Craig, 713 F.3d 1012 (9th Cir. 2013) . 3022
C. W. Johnson & Sons, Inc. v. Carpenter, 53 Cal.App.5th
Camp v. Jeffer, Mangels, Butler & Marmaro, 35
165, 265 Cal.Rptr.3d 895 (2020) . . . . . 4560; 4562
Cal.App.4th 620, 41 Cal.Rptr.2d 329 (1995) . . 2506
Cabesuela v. Browning-Ferris Industries, 68 Cal.App.4th
Camp v. Matich, 87 Cal.App.2d 660, 197 P.2d 345
101, 80 Cal.Rptr.2d 60 (1998). . . . . . .3066; 4605
(1948) . . . . . . . . . . . . . . . . . . . . . . . 4301
Cabral v. Ralphs Grocery Co., 51 Cal.4th 764, 122
Camp v. Ortega, 209 Cal.App.2d 275, 25 Cal.Rptr. 873
Cal.Rptr.3d 313, 248 P.3d 1170 (2011) . . . . . . 400
(1962) . . . . . . . . . . . . . . . . . . . . . . . 2102
Cabrera; People v., 230 Cal.App.3d 300, 281 Cal.Rptr.
Camp v. State of California, 184 Cal.App.4th 967, 109
238 (1991). . . . . . . . . . . . . . . . . .108; 5008
Cal.Rptr.3d 676 (2010) . . . . . . . . . . 450A, 450B
Cadam v. Somerset Gardens Townhouse HOA, 200
Camp, 35 Cal.App.4th 620, 41 Cal.Rptr.2d 329 . . 2506
Cal.App.4th 383, 132 Cal.Rptr.3d 617 (2011) . 1001;
1007
TC-10
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Campanelli v. Regents of Univ. of Cal., 44 Cal.App.4th Carlin v. Superior Court, 13 Cal.4th 1104, 56 Cal.Rptr.2d
572, 51 Cal.Rptr.2d 891 (1996) . . . . . . 1707; 1720 162, 920 P.2d 1347 (1996) . . . . . . . . 1205, 1206
Campbell v. Allstate Insurance Co., 60 Cal.2d 303, 32 Carlsen v. Koivumaki, 227 Cal.App.4th 879, 174
Cal.Rptr. 827, 384 P.2d 155 (1963) . . . . 2320, 2321 Cal.Rptr.3d 339 (2014). . . . . . . . . . . . . . .400
Campbell v. Derylo, 75 Cal.App.4th 823, 89 Cal.Rptr.2d Carlson, Collins, Gordon & Bold v. Banducci, 257
519 (1999) . . . . . . . . . . . . . . . . . . . . . 470 Cal.App.2d 212, 64 Cal.Rptr. 915 (1967). . . . .313
Campbell v. General Motors Corp., 32 Cal.3d 112, 184 Carma Developers (Cal.), Inc. v. Marathon Development
Cal.Rptr. 891, 649 P.2d 224, 35 A.L.R.4th 1036 California, Inc., 2 Cal.4th 342, 6 Cal.Rptr.2d 467, 826
(1982) . . . . . . . . . . . . . . . . . . . . . . . 1203 P.2d 710 (1992) . . . . . . . . . . . . . . . 325; 2331
Campbell v. Security Pacific Nat. Bank, 62 Cal.App.3d Carney v. Santa Cruz Women Against Rape, 221
379, 133 Cal.Rptr. 77 (1976) . . . . . . . . . . . 720 Cal.App.3d 1009, 271 Cal.Rptr. 30 (1990) . . . 1702;
Campbell v. Southern Pacific Co., 22 Cal.3d 51, 148 1704
Cal.Rptr. 596, 583 P.2d 121 (1978) . . . . 103; 1201; Carr v. Cove, 33 Cal.App.3d 851, 109 Cal.Rptr. 449
1203–1205; 1207A, 1207B; 1222; 1245; 5005 (1973) . . . . . . . . . . . . . . . . . . . . . . . 3933
Campbell v. Superior Court, 44 Cal.App.4th 1308, 52 Carrillo v. ACF Industries, Inc., 20 Cal.4th 1158, 86
Cal.Rptr.2d 385 (1996) . . . . . . . . . . . . . . 2336 Cal.Rptr.2d 832, 980 P.2d 386 (1999). . .2900; 2920
Campbell, 22 Cal.3d 51, 148 Cal.Rptr. 596, 583 P.2d Carrisales v. Dept. of Corrections, 21 Cal.4th 1132, 90
121. . . . . . . . . . . . . . . . . . . . . . . . .1245 Cal.Rptr.2d 804, 988 P.2d 1083
Campodonico v. State Auto Parks, Inc., 10 Cal.App.3d (1999). . . . . . . . . . . . . . . . . .2521A–2521C
803, 89 Cal.Rptr. 270 (1970) . . . . . . . . . . . 432 Carson v. Facilities Development Co., 36 Cal.3d 830, 206
Canal-Randolph Anaheim, Inc. v. Wilkoski, 78 Cal.Rptr. 136, 686 P.2d 656 (1984) . . . . 1101; 1104
Cal.App.3d 477, 144 Cal.Rptr. 474 (1978) . . . 4303 Carter v. Prime Healthcare Paradise Valley LLC, 198
Canavin v. Pacific Southwest Airlines, 148 Cal.App.3d Cal.App.4th 396, 129 Cal.Rptr.3d 895 (2011) . 3103,
512, 196 Cal.Rptr. 82 (1983) . . 3904A; 3921, 3922; 3104; 3116
3935 Cartwright; United States v., 411 U.S. 546, 93 S.Ct. 1713,
Candelore v. Tinder, Inc., 19 Cal.App.5th 1138, 228 Cal. 36 L.Ed.2d 528 (1973) . . . . . . . . . 3903J, 3903K
Rptr. 3d 336 (2018) . . . . . . . . . . . . 3060; 3062 Casas v. Maulhardt Buick, Inc., 258 Cal.App.2d 692, 66
Candies, Inc., 203 Cal.App.3d 743, 250 Cal.Rptr. 195 Cal.Rptr. 44 (1968). . . . . . . . . . . . . . . . .412
(1988) . . . . . . . . . . . . . . . . . . . . . . . 3934 Case v. State Farm Mutual Automobile Ins. Co., Inc., 30
Candies, Inc. (Pugh I), 116 Cal.App.3d 311, 171 Cal.Rptr. Cal.App.5th 397, 241 Cal.Rptr.3d 458 (2018) . 2330,
917, 115 L.R.R.M. (BNA) 4002 (1981) . 2401; 2404 2331
Cann v. Stefanec, 217 Cal.App.4th 462, 158 Cal.Rptr.3d Casella v. SouthWest Dealer Services, Inc., 157
474 (2013) . . . . . . . . . . . . . . . . . . 470, 471 Cal.App.4th 1127, 69 Cal.Rptr.3d 445 (2007) . 2430;
Cansino v. Bank of America, 224 Cal.App.4th 1462, 169 3610
Cal.Rptr.3d 619 (2014) . . . . . . . . . . 1900; 1903 Casey v. Russell, 138 Cal.App.3d 379, 188 Cal.Rptr. 18
Canton, City of v. Harris, 489 U.S. 378, 109 S.Ct. 1197, (1982) . . . . . . . . . . . . . . . . . . . . . 420; 711
103 L.Ed.2d 412 (1989) . . . . . . . . . . . . . 3003 Casey v. U.S. Bank Nat. Assn., 127 Cal.App.4th 1138, 26
Capelouto v. Kaiser Foundation Hospitals, 7 Cal.3d 889, Cal.Rptr.3d 401 (2005) . . . . . . . . . . . . . . 3610
103 Cal.Rptr. 856, 500 P.2d 880 (1972) . . . . 3905A Casey, 138 Cal.App.3d 379, 188 Cal.Rptr. 18 . . . . 420
Capogeannis v. Superior Court, 12 Cal.App.4th 668, 15 Cassinos v. Union Oil Co., 14 Cal.App.4th 1770, 18
Cal.Rptr.2d 796 (1993) . . . . . . . . . . . . . . 2000 Cal.Rptr.2d 574, 125 O.&G.R. 472 (1993) . . . 2000;
Capp v. Cty. of San Diego, 940 F.3d 1046 (9th Cir. 2002
2019) . . . . . . . . . . . . . . . . . . . . . . . 3050 Castaneda v. Ensign Group, Inc., 229 Cal.App.4th 1015,
Cardinal Health 301, Inc. v. Tyco Electronics Corp., 169 177 Cal.Rptr.3d 581 (2014) . . . . . . . . . . . 2705
Cal.App.4th 116, 87 Cal. Rptr. 3d 5 (2008) . . . 4510 Castaneda v. Olsher, 41 Cal.4th 1205, 63 Cal.Rptr.3d 99,
Careau & Co., 222 Cal.App.3d 1371, 272 Cal.Rptr. 162 P.3d 610 (2007) . . . . . . . . . . . . . . . 1005
387 . . . . . . . . . . . . . . . . . . . . 325; VF-304 Castle Park No. 5 v. Katherine, 91 Cal.App.3d Supp. 6,
Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 154 Cal.Rptr. 498 (1979) . . . . . . . . . . . . .4340
252 (1978). . . . . . . . . . . . . . . . . . . . .3051 Castro v. City of Thousand Oaks, 192 Cal.Rptr.3d 376,
Carleton v. Tortosa, 14 Cal.App.4th 745, 17 Cal.Rptr.2d 239 Cal. App. 4th 1451 . . . . . . .1100; 1102; 1123
734 (1993) . . . . . . . . . . . . . . . . . 4101; 4107 Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir.
Carley v. Wheeled Coach, 991 F.2d 1117 (3d Cir. 2016) . . . . . . . . . . . . . 3002–3004; 3040; 3046
1993) . . . . . . . . . . . . . . . . . . . . 1246, 1247
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Castro v. State of California, 114 Cal.App.3d 503, 170 Chalup v. Aspen Mine Co., 175 Cal.App.3d 973, 221
Cal.Rptr. 734 (1981) . . . . . . . . . . . . . . . 3708 Cal.Rptr. 97 (1985). . . . . . . . . . . . . . . . .422
Castro, 239 Cal.App.4th 1451, 192 Cal. Rptr. 3d Chambers, Conservatorship of, 71 Cal.App.3d 277, 139
376. . . . . . . . . . . . . . . . . . . . . . . . .1123 Cal.Rptr. 357 (1977) . . . . . . . . . . . .4001, 4002
Castro, 833 F.3d 1060 . . . . . . . . . 3002; 3040; 3046 Chan v. Lund, 188 Cal.App.4th 1159, 116 Cal.Rptr.3d
Castro-Ramirez v. Dependable Highway Express, Inc., 2 122 (2010) . . . . . . . . . . . . . . . . . . . . . 333
Cal.App.5th 1028, 207 Cal.Rptr.3d 120 (2016).2505; Chanda v. Federal Home Loans Corp., 215 Cal.App.4th
2547 746, 155 Cal.Rptr.3d 693 (2013) . . . . . . . . . 432
Catalano Inc. v. Target Sales, Inc., 446 U.S. 643, 100 Channell v. Anthony, 58 Cal.App.3d 290, 129 Cal.Rptr.
S.Ct. 1925, 64 L.Ed.2d 580, 1980-2 Trade Cas. (CCH) 704 (1976) . . . . . . . . . . . . . . . . . 1920–1922
P63352 (1980) . . . . . . . . . . . . . . . . . . 3400 Chaparkas v. Webb, 178 Cal.App.2d 257, 2 Cal.Rptr. 879
Catsouras v. Department of California Highway Patrol, (1960) . . . . . . . . . . . . . . . . . . . . . . . 3900
181 Cal.App.4th 856, 104 Cal.Rptr.3d 352 Chapman v. Enos, 116 Cal.App.4th 920, 10 Cal.Rptr.3d
(2010) . . . . . . . . . . . . . . . . 1621; 1801; 3000 852, 10 Cal. Rptr. 3d 852 (2004) . . . . . . . . 2525
Caudel v. East Bay Municipal Utility Dist., 165 Charpentier v. Los Angeles Rams, 75 Cal.App.4th 301,
Cal.App.3d 1, 211 Cal.Rptr. 222 (1985) . . . . . 3708 89 Cal.Rptr.2d 115 (1999) . . . . . . . . . . . . 1908
Cavers v. Cushman Motor Sales, Inc., 95 Cal.App.3d 338, Chase v. Blue Cross of California, 42 Cal.App.4th 1142,
157 Cal.Rptr. 142 (1979) . . . . . . . . . . . . .1205 50 Cal.Rptr.2d 178 (1996) . . . . . . . . . . . . 2333
Cazares v. Ortiz, 109 Cal.App.3d Supp. 23, 168 Cal.Rptr. Chateau Chamberay Homeowners Assn. v. Associated
108 (1980). . . . . . . . . . . . . . . . . . . . .4342 International Insurance Co., 90 Cal.App.4th 335, 108
Cedars-Sinai Medical Center v. Superior Court, 18 Cal. Rptr. 2d 776 (2001) . . . . . . . . . . . . . 2331
Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 Chau v. Starbucks Corp., 174 Cal.App.4th 688, 94
(1998). . . . . . . . . . . . . . . . . . . . . . . .204 Cal.Rptr.3d 593 (2009) . . . . . . . . . . . . . . 2752
Cedars-Sinai Medical Center v. Superior Court, 206 Chavez v. Glock, Inc., 207 Cal.App.4th 1283, 144
Cal.App.3d 414, 253 Cal.Rptr. 561 (1988) . . . 1500; Cal.Rptr.3d 326 (2012). . . . . .1203–1205; 1207A;
1504 1220–1222; 1245
Celli v. Sports Car Club of America, Inc., 29 Cal.App.3d Chavez v. 24 Hour Fitness USA, Inc., 238 Cal.App.4th
511, 105 Cal.Rptr. 904 (1972) . . . . . . . . . . .411 632, 189 Cal.Rptr.3d 449 (2015) . . . . . . . . . 425
Cellular Plus, Inc. v. Superior Court, 14 Cal.App.4th Chavez v. Whirlpool Corp., 93 Cal.App.4th 363, 113
1224, 18 Cal. Rptr. 2d 308, 1993-1 Trade Cas. (CCH) Cal.Rptr.2d 175, 2001-2 Trade Cas. (CCH) P73470
P70254 (1993) . . . . . . . . . . . . . . . 3400–3405 (2001) . . . . . . . . . . . . . . . . 3400, 3401; 3409
Cel-Tech Communications, Inc. v. Los Angeles Cellular Chavez v. Zapata Ocean Resources, Inc., 155 Cal.App.3d
Telephone Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 115, 201 Cal.Rptr. 887 (1984). . . . . . . . . . .208
973 P.2d 527, 1999-1 Trade Cas. (CCH) P72495 Chavez, 207 Cal.App.4th 1283, 144 Cal.Rptr.3d
(1999). . . . . . . . . . . . . . . . . . . .3301, 3302 326 . . . . . . . . . . . . . . . . . . . . . 1203, 1204
Centex Homes v. R-Help Construction Co., Inc, 32 Cheal v. El Camino Hospital, 223 Cal.App.4th 736, 167
Cal.App.5th 1230, 244 Cal.Rptr.3d 574 (2019) . 2336 Cal.Rptr.3d 485 (2014) . . . . . . . . . . . . . . 2513
Central Valley Gas Storage, LLC v. Southam, 11 Chemehuevi Indian Tribe v. McMahon, 934 F.3d 1076
Cal.App.5th 686, 217 Cal.Rptr.3d 715 (2017). .3501 (9th Cir. 2019) . . . . . . . . . . . . . . . . . . 3000
Century Ins. Co. v. Superior Court (Tapia), 240 Chen v. Berenjian, 33 Cal.App.5th 811, 245 Cal.Rptr.3d
Cal.App.4th 322, 192 Cal. Rptr. 3d 530 (2015) . 2322 378 (2019). . . . . . . . . . . . . . . . . . . . .4204
Century Ins. Co., 42 Cal.4th 713, 68 Cal.Rptr.3d 746, 171 Chess v. Dovey, 790 F.3d 961 (9th Cir. 2015) . . . 3041
P.3d 1082 (2007). . . . . . . . . . . . . .2331, 2332
Cheung v. Daley, 35 Cal.App.4th 1673, 42 Cal.Rptr.2d
Century Ins. Co., 166 Cal.App.4th 1225, 83 Cal.Rptr.3d 164 (1995). . . . . . . . . . . . . .3940; 3942; 3949
410 (2008). . . . . . . . . . . . . . . . . . . . .2331
Chhour v. Community Redevelopment Agency of Buena
Century Surety Co. v. Polisso, 139 Cal.App.4th 922, 43 Park, 46 Cal.App.4th 273, 53 Cal.Rptr.2d 585
Cal.Rptr.3d 468 (2006) . . . . . . . . . . . . . . 2330 (1996) . . . . . . . . . . . . . . . . . . . . . . . 3507
Cerna v. City of Oakland, 161 Cal.App.4th 1340, 75 Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., 188
Cal.Rptr.3d 168 (2008) . . . . . . . . . . . . . . 1100 Cal.App.4th 401, 115 Cal.Rptr.3d 707 (2010) . .3709
Cerra v. Blackstone, 172 Cal.App.3d 604, 218 Cal.Rptr. Chicago Title Insurance Co. v. Great Western Financial
15 (1985) . . . . . . . . . . . . . . . . . . . . . 2100 Corp., 69 Cal.2d 305, 70 Cal.Rptr. 849, 444 P.2d 481,
Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 156 1968 Trade Cas. (CCH) P72557 (1968) . . . . . 3400
Cal.Rptr. 198, 595 P.2d 975 (1979). . . .1401–1403;
1408, 1409; 1603
TC-12
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Childers v. Shasta Livestock Auction Yard, Inc., 190 City and County of (see name of city and county)
Cal.App.3d 792, 235 Cal.Rptr. 641, 52 Cal. Comp. City of (see name of city)
Cases 190 (1987) . . . . . . . . . . . . . . . . . 3724 Civic Western Corp. v. Zila Industries, Inc., 66
Childs; People v., 220 Cal.App.4th 1079, 164 Cal.Rptr.3d Cal.App.3d 1, 135 Cal.Rptr. 915 (1977). . . . .2000
287 (2013). . . . . . . . . . . . . . . . . . . . .1812 Clark v. Burlington Northern, Inc., 726 F.2d 448 (8th Cir.
Choate v. Celite Corp., 215 Cal.App.4th 1460, 155 1984) . . . . . . . . . . . . . . . . . . . . 2941, 2942
Cal.Rptr.3d 915, 195 L.R.R.M. (BNA) 3006 Clark v. Claremont University Center, 6 Cal.App.4th 639,
(2013) . . . . . . . . . . . . . . . . . . . . . . . 2704 8 Cal.Rptr.2d 151 (1992) . . . . . . . . . . . . .2507
Choate v. County of Orange, 86 Cal.App.4th 312, 103 Clark v. Dziabas, 69 Cal.2d 449, 71 Cal.Rptr. 901, 445
Cal.Rptr.2d 339 (2000) . . . 3000, 3001; 3003, 3004; P.2d 517 (1968) . . . . . . . . . . . . . . . . . .3713
3600
Clark Equipment Co. v. Wheat, 92 Cal.App.3d 503, 154
Choi v. Sagemark Consulting, 18 Cal.App.5th 308, 226 Cal.Rptr. 874 (1979) . . . . . . . . . . . . . . . 1520
Cal.Rptr.3d 267 (2017) . . . . . . . . . . . 454; 4120
Claudio v. Regents of the University of California, 134
Chowdhury v. City of Los Angeles, 38 Cal.App.4th 1187, Cal.App.4th 224, 35 Cal.Rptr.3d 837 (2005) . . 2541;
45 Cal.Rptr.2d 657 (1995) . . . . . . . . .1120, 1121 2546
Chrisman v. City of Los Angeles, 155 Cal.App.4th 29, 65 Clayworth v. Pfizer, Inc., 49 Cal.4th 758, 111 Cal.Rptr.3d
Cal.Rptr.3d 701 (2007) . . . . . . . . . . . . . . 1813 666, 233 P.3d 1066, 2010-2 Trade Cas. (CCH) P77088
Christensen v. Slawter, 173 Cal.App.2d 325, 343 P.2d 341 (2010) . . . . . . . . . . . . . . . . . . . . . . . 3400
(1959). . . . . . . . . . . . . . . . . . . . . . . .356 Clemens v. Regents of Univ. of California, 8 Cal.App.3d
Christensen v. Superior Court, 54 Cal.3d 868, 2 1, 87 Cal.Rptr. 108 (1970). . . . . . . . . . . . .506
Cal.Rptr.2d 79, 820 P.2d 181 (1991) . . . 1600, 1601; Clement v. Smith, 16 Cal.App.4th 39, 19 Cal.Rptr.2d 676
1603; 1620; 3712 (1993) . . . . . . . . . . . . . . . . . . . . . . . 2361
Christensen; United States v., 828 F.3d 763 (9th Cir. Clemente v. State of California, 40 Cal.3d 202, 219
2015) . . . . . . . . . . . . . . . . . . . . . . . 1812 Cal.Rptr. 445, 707 P.2d 818 (1985) . . . . . . . 3900
Christian v. Goodwin, 188 Cal.App.2d 650, 10 Cal.Rptr. Clemmer v. Hartford Insurance Co., 22 Cal.3d 865, 151
507 (1961) . . . . . . . . . . . . . . . . . . . . . 402 Cal.Rptr. 285, 587 P.2d 1098 (1978) . . . 2303; 2320,
Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 2321
723 (1941). . . . . . . . . . . . . . . . . . . . .3930 Cleveland v. Johnson, 209 Cal.App.4th 1315, 147
Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999). . .3004 Cal.Rptr.3d 772 (2012) . . . . . . . . . . . . . . 4100
Christoff v. Nestle USA, Inc., 47 Cal.4th 468, 97 Clouthier v. County of Contra Costa, 591 F.3d 1232 (9th
Cal.Rptr.3d 798, 213 P.3d 132, 91 U.S.P.Q.2d 1718 Cir. 2010). . . . . . . . . . . . . . . . . .3003, 3004
(2009). . . . . . . . . . . . . . . . . .1804A, 1804B CMSH Co. v. Antelope Development, Inc., 223
Chronakis v. Windsor, 14 Cal.App.4th 1058, 18 Cal.App.3d 174, 272 Cal.Rptr. 605 (1990). . .3903F
Cal.Rptr.2d 106 (1993) . . . . . . . . . . . . . . 5009 Cnty. of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct.
Chrysler Credit Corp. v. Ostly, 42 Cal.App.3d 663, 117 1708, 140 L.Ed.2d 1043 (1998) . . . . . . . . . 3005
Cal.Rptr. 167 (1974) . . . . . . . . . . . . . . . 1730 COAC, Inc. v. Kennedy Engineers, 67 Cal.App.3d 916,
Church v. Jamison, 143 Cal.App.4th 1568, 50 Cal.Rptr.3d 136 Cal.Rptr. 890 (1977) . . . . . . . . . . . . .4502
166 (2006). . . . . . . . . . . . . . . . . . . . .2753 Coakley v. Ajuria, 209 Cal. 745, 290 P. 33 (1930) . 404
Church of Scientology v. Armstrong, 232 Cal.App.3d Cobb v. Ironwood Country Club, 233 Cal.App.4th 960,
1060, 283 Cal.Rptr. 917 (1991) . . . . . . . . . 2100 183 Cal.Rptr.3d 282 (2015) . . . . . . . . . . . . 325
Churchman v. Bay Area Rapid Transit Dist., 39 Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d
Cal.App.5th 246, 252 Cal.Rptr.3d 167 (2019) . . 902 1 (1972). . . . . . . . . . .530A; 531–535; 550–554
Chyten v. Lawrence & Howell Investments, 23 Cochran v. Schwan’s Home Service, Inc., 228
Cal.App.4th 607, 46 Cal.Rptr.2d 459 (1993) . . 3963 Cal.App.4th 1137, 176 Cal.Rptr.3d 407 (2014) . 2750
Cipro Cases I & II, In re, 61 Cal.4th 116, 187 Cal.Rptr.3d Cochrum v. Costa Victoria Healthcare, LLC, 25
632, 348 P.3d 845, 2015-1 Trade Cas. (CCH) P79156 Cal.App.5th 1034, 236 Cal.Rptr.3d 457 (2018) . 3712
(2015) . . . . . . . . . . . . . . . . . . . 3401; 3412
Cockerell v. Title Insurance & Trust Co., 42 Cal.2d 284,
Citizens for Odor Nuisance Abatement v. City of San 267 P.2d 16 (1954). . . . . . . . . . . . . . . . .326
Diego, 8 Cal.App.5th 350, 213 Cal. Rptr. 3d 538
Coe v. State Farm Mutual Automobile Insurance Co., 66
(2017) . . . . . . . . . . . . . . . . . . . . . . . 2020
Cal.App.3d 981, 136 Cal.Rptr. 331, 42 Cal. Comp.
Citizens of Humanity, LLC v. Ramirez, 63 Cal.App.5th Cases 1100 (1977). . . . . . . . . . . . . .220; 2334
117, 277 Cal.Rptr.3d 501 (2021). . . . . . . . .1501
Cohen v. Bay Area Pie Company, 217 Cal.App.2d 69, 31
Citrus El Dorado, LLC v. Chicago Title Co., 32 Cal.Rptr. 426 (1963) . . . . . . . . . . . . . . . . 702
Cal.App.5th 943, 244 Cal.Rptr.3d 372 (2019). .4920
TC-13
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Cohen v. S&S Construction Co., 151 Cal.App.3d 941, Comedy III Productions, Inc. v. Gary Saderup, Inc., 25
201 Cal.Rptr. 173 (1983) . . . . . . . . . . . . .1900 Cal.4th 387, 106 Cal.Rptr.2d 126, 21 P.3d 797, 58
Colaco v. Cavotec SA, 25 Cal.App.5th 1172, 236 U.S.P.Q.2d 1823 (2001). . . . . . .1803; 1805, 1806
Cal.Rptr.3d 542, 236 Cal. Rptr. 3d 542 (2018). .303; Comunale v. Traders & General Ins. Co., 50 Cal.2d 654,
321 328 P.2d 198, 68 A.L.R.2d 883 (1958) . . 325; 2330;
Colarossi v. Coty US Inc., 97 Cal.App.4th 1142, 119 2334; 2423, 2424
Cal.Rptr.2d 131 (2002) . . . . . . . . . . . . . . 2505 ConAgra Grocery Products Co.; People v., 17
Coldwell Banker Residential Brokerage Co. v. Superior Cal.App.5th 51, 227 Cal. Rptr. 3d 499 (2017). .2020
Court, 117 Cal.App.4th 158, 11 Cal.Rptr.3d 564 Conjorsky v. Murray, 135 Cal.App.2d 478, 287 P.2d 505
(2004). . . . . . . . . . . . . . . . . . . .4107–4109 (1955). . . . . . . . . . . . . . . . . . . . . . . .403
Cole v. Patricia A. Meyer & Associates, APC, 206 Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73
Cal.App.4th 1095, 142 Cal.Rptr.3d 646 (2012) . 1501 L.Ed.2d 130 (1982). . . . . . . . . . . . . . . .2502
Cole v. Town of Los Gatos, 205 Cal.App.4th 749, 140 Connell v. Higgins, 170 Cal. 541, 150 P. 769
Cal.Rptr.3d 722 (2012). . . . . . . . . . .1102, 1103 (1915) . . . . . . . . . . . . . . . . . . . . 312; 4524
Coleman v. Gulf Insurance Group, 41 Cal.3d 782, 226 Connelly v. Bornstein, 33 Cal.App.5th 783, 245
Cal.Rptr. 90, 718 P.2d 77, 62 A.L.R.4th 1083 Cal.Rptr.3d 452 (2019) . . . . . . . . . . . . 610, 611
(1986) . . . . . . . . . . . . . . . . . . . . . . . 1520 Connelly v. Mammoth Mountain Ski Area, 39
Coleman Engineering Co. v. North American Aviation, Cal.App.4th 8, 45 Cal.Rptr.2d 855 (1995) . . . . 470
Inc., 65 Cal.2d 396, 55 Cal.Rptr. 1, 420 P.2d 713 Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75
(1966) . . . . . . . . . . . . . . . . . . . 4500; 4520 L.Ed.2d 708 (1983). . . . . . . . . . . . . . . .1702
College Hospital, Inc. v. Superior Court, 8 Cal.4th 704, Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 179
34 Cal.Rptr.2d 898, 882 P.2d 894 (1994) . . . . 1623; L. Ed. 2d 417 (2011) . . . . . . . . . . . . . . . 3003
3114, 3115; 3940–3949 Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483, 319
Collin v. American Empire Insurance Co., 21 Cal.App.4th P.2d 343 (1957) . . . . . . . . . . . . . . . . . 3903D
787, 26 Cal.Rptr.2d 391 (1994). . . . .2100; 3903M Conservatorship of (see name of party)
Collins v. City and County of San Francisco, 50 Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114
Cal.App.3d 671, 123 Cal.Rptr. 525 (1975) . . . 1407 S.Ct. 2396, 129 L.Ed.2d 427, 16 O.S.H. Cas. (BNA)
Collins v. County of Los Angeles, 241 Cal.App.2d 451, 1904 (1994) . . . . . . . . . . . . . . . . . . . . 2900
50 Cal.Rptr. 586 (1966) . . . . . . . . . . . . . 1400 Consolidated World Investments, Inc. v. Lido Preferred
Collins v. Navistar, Inc., 214 Cal.App.4th 1486, 155 Ltd., 9 Cal.App.4th 373, 11 Cal.Rptr.2d 524
Cal.Rptr.3d 137 (2013). . . . . . . . . . . . . . .433 (1992). . . . . . . . . . . . . . .303; 321, 322; 4521
Collins v. Rocha, 7 Cal.3d 232, 102 Cal.Rptr. 1, 497 P.2d Consumer Advocates v. Echostar Satellite Corp., 113
225 (1972). . . . . . . . . . . . . . . . . . . . .2710 Cal.App.4th 1351, 8 Cal.Rptr.3d 22 (2003) . . . 4700
Collins v. Union Pacific Railroad Co., 207 Cal.App.4th Cont’l Ins. Co. v. Am. Prot. Indus., 197 Cal.App.3d 322,
867, 143 Cal.Rptr.3d 849, 77 Cal. Comp. Cases 622 242 Cal.Rptr. 784 (1987) . . . . . . . . . . . . . 425
(2012) . . . . . . . . . . . . . . . . . . . . . . . 2923 Conte v. Wyeth, Inc., 168 Cal.App.4th 89, 85 Cal.Rptr.3d
Collins, 202 Cal. App. 4th 249, 134 Cal. Rptr. 3d 588 299 (2008) . . . . . . . . . . . . . . . . . 1205; 1222
(2011) . . . . . . . . . . . . . . . . . . . . . . . 4700 Conti v. Watchtower Bible & Tract Society of New York,
Collins, 207 Cal.App.4th 867, 143 Cal.Rptr.3d Inc., 235 Cal.App.4th 1214, 186 Cal.Rptr.3d 26
849. . . . . . . . . . . . . . . . . . . . . . . . .2923 (2015). . . . . . . . . . . . . . . . . . . . . . .450C
Collins, 214 Cal.App.4th 1486, 155 Cal.Rptr.3d Continental Airlines, Inc. v. McDonnell Douglas Corp.,
137 . . . . . . . . . . . . . . . . . . . . . . . . . 433 216 Cal.App.3d 388, 264 Cal.Rptr. 779 (1989) . 206;
Collins; People v., 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 1904
P.2d 742 (1976) . . . . . . . . . . . . . . . . . .5014 Continental Illinois Nat’l Bank & Trust Co., 121 Ct.Cl.
Collyer v. S.H. Kress Co., 5 Cal.2d 175, 54 P.2d 20 203, 101 F.Supp. 755. . . . . . . . . . . . . . .4532
(1936) . . . . . . . . . . . . . . . . . . . 1404; 1409 Contra Costa, County of v. Nulty, 237 Cal.App.2d 593,
Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 47 Cal.Rptr. 109 (1965) . . . . . . . . . . . . . . 204
1019, 130 Cal.Rptr.2d 662, 63 P.3d 220, 68 Cal. Contra Costa County Title Co. v. Waloff, 184 Cal.App.2d
Comp. Cases 129 (2003) . . . . . . . . . . . . . 4605 59, 7 Cal.Rptr. 358 (1960) . . . . . . . . . . . . 1730
Columbia Casualty Co. v. Lewis, 14 Cal.App.2d 64, 57 Contra Costa County Water Dist. v. Vaquero Farms, Inc.,
P.2d 1010 (1936) . . . . . . . . . . . . . . . . . .337 58 Cal.App.4th 883, 68 Cal.Rptr.2d 272
Colwell v. Bannister, 763 F.3d 1060 (9th Cir. (1997) . . . . . . . . . . . . . . . . . . . . . . 3509A
2014) . . . . . . . . . . . . . . . . . . . . . . . 3041
TC-14
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Contreras v. Anderson, 59 Cal.App.4th 188, 69 Cortez v. Macias, 110 Cal.App.3d 640, 167 Cal.Rptr. 905
Cal.Rptr.2d 69 (1997) . . . . . . . . . . . 1002; 1008 (1980) . . . . . . . . . . . . . . . . . . . . . . . 3924
Contreras, San Francisco Unified School Dist. ex rel. v. Cortez v. Vogt, 52 Cal.App.4th 917, 60 Cal.Rptr.2d 841
Laidlaw Transit, Inc., 182 Cal.App.4th 438, 106 Cal. (1997) . . . . . . . . . . . . . . . . . . . . . . . 4208
Rptr. 3d 84 (2010) . . . . . . . . . . . . . 4800, 4801 Corwin v. Los Angeles Newspaper Service Bur., 22
Conway v. Pasadena Humane Society, 45 Cal.App.4th Cal.3d 302, 148 Cal.Rptr. 918, 583 P.2d 777, 1978-2
163, 52 Cal.Rptr.2d 777 (1996). . .3021–3023; 3026 Trade Cas. (CCH) P62293 (1978) . . . . . . . . 3411
Cook v. Los Angeles Ry. Corp., 13 Cal.2d 591, 91 P.2d Corwin v. Los Angeles Newspaper Service Bureau, Inc.,
118 (1939) . . . . . . . . . . . . . . . . . 5009; 5013 4 Cal.3d 842, 94 Cal.Rptr. 785, 484 P.2d 953, 1971
Cook; People v., 33 Cal.3d 400, 189 Cal.Rptr. 159, 658 Trade Cas. (CCH) P73582 (1971) .3404, 3405; 3422,
P.2d 86 (1983) . . . . . . . . . . . . . . . . . . . 202 3423
Coon v. Joseph, 192 Cal.App.3d 1269, 237 Cal.Rptr. 873 Cory v. Villa Properties, 180 Cal.App.3d 592, 225
(1987). . . . . . . . . . . . . . . . . . . .3063, 3064 Cal.Rptr. 628 . . . . . . . . . . . . . . . . . . . 1920
Cooper v. National Motor Bearing Co., 136 Cal.App.2d Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108
229, 288 P.2d 581, 51 A.L.R.2d 963 (1955) . . . 504 Cal.Rptr.2d 471, 25 P.3d 670 (2001) . . . . . . . 606
Cooper v. National Railroad Passenger Corporation, 45 Costa Mesa, City of v. D’Alessio Investments, LLC, 214
Cal.App.3d 389, 119 Cal.Rptr. 541, 76 A.L.R.3d 1210 Cal.App.4th 358, 154 Cal.Rptr.3d 698 (2013). .1731
(1975). . . . . . . . . . . . . . . . . . . . . . . .903 Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d
Cooper v. Rykoff-Sexton, Inc., 24 Cal.App.4th 614, 29 1101 (9th Cir. 2010) . . . . . . . . . . . . . . . 3052
Cal.Rptr.2d 642 (1994) . . . . . . . . . . . . . . 2506 Costello v. Hart, 23 Cal.App.3d 898, 100 Cal.Rptr. 554
Cooper Companies, Inc. v. Transcontinental Insurance (1972). . . . . . . . . . . . . . . . . . . . . . . .428
Co., 31 Cal.App.4th 1094, 37 Cal.Rptr.2d 508 Cote v. Henderson, 218 Cal.App.3d 796, 267 Cal.Rptr.
(1995). . . . . . . . . . . . . . . . . . . . . . . .316 274 (1990). . . . . . . . . . . . . . . . . . . . .1500
Co-Opportunities, Inc. v. National Broadcasting Co., Inc., Cotran v. Rollins Hudig Hall International, Inc., 17
510 F.Supp. 43, 211 U.S.P.Q. 103, 1981-1 Trade Cas. Cal.4th 93, 69 Cal.Rptr.2d 900, 948 P.2d 412
(CCH) P63999 (N.D. Cal. 1981). . . . . . . . .3302 (1998) . . . . . . . . . . . . . . . . 2404, 2405; 2424
Coorough v. De Lay, 171 Cal.App.2d 41, 339 P.2d 963 Coughlin v. Blair, 41 Cal.2d 587, 262 P.2d 305
(1959) . . . . . . . . . . . . . . . . . . . . . . . 5022 (1953) . . . . . . . . . . . . . . . . . . . . .354; 359
Copenbarger v. Morris Cerullo World Evangelism, Inc., Coulter v. Bank of America National Trust and Savings
29 Cal.App.5th 1, 239 Cal. Rptr. 3d 838 (2018) . 350 Assn., 28 Cal.App.4th 923, 33 Cal.Rptr.2d 766
Copp v. Paxton, 45 Cal.App.4th 829, 52 Cal.Rptr.2d 831 (1994) . . . . . . . . . . . . . . . . . . . . . . . 1809
(1996). . . . . . . . . . . . . . . . . . . .1702, 1703 County of (see name of county)
Copperweld Corp. v. Independence Tube Corp., 467 U.S. County Sanitation Dist. No. 8 of Los Angeles County v.
752, 104 S.Ct. 2731, 81 L.Ed.2d 628, 1984-2 Trade Watson Land Co., 17 Cal.App.4th 1268, 22
Cas. (CCH) P66065 (1984). . . . . . . . . . . .3407 Cal.Rptr.2d 117 . . . . . . . . . . . . . . . . . . 3510
Cordero-Sacks v. Housing Authority of City of Los Courtesy Temporary Service, Inc. v. Camacho, 222
Angeles, 200 Cal.App.4th 1267, 134 Cal.Rptr.3d 883 Cal.App.3d 1278, 272 Cal.Rptr. 352 (1990) . . 4403;
(2011). . . . . . . . . . . . . . . . . . . .3963; 4600 4420
Cordova v. City of Los Angeles, 61 Cal. 4th 1099, 190 Covenant Care, Inc. v. Superior Court, 32 Cal.4th 771, 11
Cal. Rptr. 3d 850, 353 P.3d 773 (2015). .1100; 1102 Cal.Rptr.3d 222, 86 P.3d 290 (2004). . . . . . .3103
Cornejo v. Lightbourne, 220 Cal.App.4th 932, 163 Cox v. Griffin, 34 Cal.App.5th 440, 246 Cal.Rptr.3d 185
Cal.Rptr.3d 530 (2013) . . . . . . . . . . . . . . 4601 (2019). . . . . . . . . . . . .1401; 1403; 1405; 1500
Cornell v. Berkeley Tennis Club, 18 Cal.App.5th 908, Coyle v. Historic Mission Inn Corp., 24 Cal.App.5th 627,
227 Cal. Rptr. 3d 286 (2017) . . 1723; 2521A; 2540, 234 Cal.Rptr.3d 330, 234 Cal. Rptr. 3d 330
2541 (2018). . . . . . . . . . . . . . . . . . . . . . . .400
Cornell v. City & County of San Francisco, 17 Coyne v. De Leo, 26 Cal.App.5th 801, 237 Cal.Rptr.3d
Cal.App.5th 766, 225 Cal. Rptr. 3d 356 359 (2018) . . . . . . . . . . . . . . . . . 4321, 4322
(2017) . . . . . . . . . . . . . . . . . . . 1402; 3066 Craddock v. Kmart Corp., 89 Cal.App.4th 1300, 107
Cornette v. Dept. of Transportation, 26 Cal.4th 63, 109 Cal.Rptr.2d 881 (2001) . . . . . . . . . . . . . . 3920
Cal.Rptr.2d 1, 26 P.3d 332 (2001). . . . .1123, 1124 Craig v. White, 187 Cal. 489, 202 P. 648 (1921) . . 336
Corporation of Presiding Bishop of Church of Jesus Cramer v. Tyars, 23 Cal.3d 131, 151 Cal.Rptr. 653, 588
Christ of Latter-Day Saints v. Cavanaugh, 217 P.2d 793 (1979) . . . . . . . . . . . . . . . . . . 216
Cal.App.2d 492, 32 Cal.Rptr. 144 (1963) . . . . 4511
TC-15
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Creditors Collection Serv. v. Castaldi, 38 Cal.App.4th Cuiellette v. City of Los Angeles, 194 Cal.App.4th 757,
1039, 45 Cal.Rptr. 2d 511 (1995) . . . . . . . . 1925 123 Cal. Rptr. 3d 562, 76 Cal. Comp. Cases 408
Creekridge Townhome Owners Assn., Inc. v. C. Scott (2011) . . . . . . . . . . . . . . . . . . . . . . . 2541
Whitten, Inc., 177 Cal.App.4th 251, 99 Cal.Rptr.3d Cummings v. County of Los Angeles, 56 Cal.2d 258, 14
258 (2009) . . . . . . . . . . . . . . . . . 4550–4552 Cal.Rptr. 668, 363 P.2d 900 (1961) . . . . . . . . 402
Crestview Cemetery Assn. v. Dieden, 54 Cal.2d 744, 8 Cummings v. Fire Ins. Exch, 202 Cal.App.3d 1407, 249
Cal.Rptr. 427, 356 P.2d 171 (1960) . . . . . . . . 318 Cal.Rptr. 568 (1988) . . . . . . . . 1401; 2308, 2309
Crisci v. Security Insurance Co. of New Haven, Cummings; People v., 4 Cal.4th 1233, 18 Cal.Rptr.2d
Connecticut, 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 796, 850 P.2d 1 (1993) . . . . . . . . . . . 112; 5019
173 (1967) . . . . . . . . . . . . . . . . 2334; 3905A Cummins, Inc. v. Superior Court, 36 Cal.4th 478, 30
Crocker-Anglo Nat’l Bank v. Kuchman, 224 Cal.App.2d Cal.Rptr.3d 823, 115 P.3d 98 (2005). . . . . . .3201
490, 36 Cal.Rptr. 806 (1964) . . . . . . . . . . . 331 Cunningham v. Simpson, 1 Cal.3d 301, 81 Cal.Rptr. 855,
Croeni v. Goldstein, 21 Cal.App.4th 754, 26 Cal.Rptr.2d 461 P.2d 39 (1969) . . . . . . . . . . . . . . . . 1802
412 (1994). . . . . . . . . . . . . . . . . . . . .1922 Curtis v. State of California, 128 Cal.App.3d 668, 180
Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. Cal.Rptr. 843, 43 A.L.R.4th 823 (1982) . 1100; 3935;
433, 501 P.2d 1153 (1972) . . . . . . . . 1201; 1245 3965
Cross v. Facebook, Inc., 14 Cal.App.5th 190, 222 Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463,
Cal.Rptr.3d 250 (2017) . . . . . . . . . 1803; 1804A 27 A.L.R.3d 884 (1967) . . . . . . . . . . . . . . 511
Crossroads Investors, L.P. v. Federal National Mortgage Customer Co. v. City of Sacramento, 10 Cal.4th 368, 41
Association, 13 Cal.App.5th 757, 222 Cal.Rptr.3d 1 Cal.Rptr.2d 658, 895 P.2d 900 (1995) . . . . . . 3500
(2017) . . . . . . . . . . . . . . . . . . . . . . . 4920 Cypress Semiconductor Corp. v. Superior Court, 163
CrossTalk Productions, Inc. v. Jacobson, 65 Cal.App.4th Cal.App.4th 575, 77 Cal.Rptr.3d 685 (2008) . . 4421
631, 76 Cal.Rptr.2d 615 (1998) . . . . . . . . . . 333 Cyr v. McGovran, 206 Cal.App.4th 645, 142 Cal.Rptr.3d
Crouch v. Trinity Christian Center of Santa Ana, Inc., 39 34 (2012) . . . . . . . . . . . . . . . . . . . . . 1730
Cal.App.5th 995, 253 Cal.Rptr.3d 1 (2019) . . . 433; Czajkowski v. Haskell & White, 208 Cal.App.4th 166,
1600; 3701 144 Cal.Rptr.3d 522 (2012) . . . . . . . . . 454, 455
Croucier v. Chavos, 207 Cal.App.4th 1138, 144 Czubinsky v. Doctors Hospital, 139 Cal.App.3d 361, 188
Cal.Rptr.3d 180 (2012) . . . . . . . . . . . . 610, 611 Cal.Rptr. 685 (1983) . . . . . . . . . . . . . . . . 514
Crowley v. Bannister, 734 F.3d 967 (9th Cir.
2013) . . . . . . . . . . . . . . . . . . . . . . . 3005 D
Crowley v. Katleman, 8 Cal.4th 666, 34 Cal.Rptr.2d 386,
881 P.2d 1083 (1994). . . . . . . . . . . . . . .1530 D’Acquisto v. Evola, 90 Cal.App.2d 210, 202 P.2d 596
(1949) . . . . . . . . . . . . . . . . . . . . . . . 3705
Crown Imports, LLC v. Superior Court, 223 Cal.App.4th
1395, 168 Cal.Rptr.3d 228, 168 Cal. Rptr. 3d 228 D’sa v. Playhut, Inc., 85 Cal.App.4th 927, 102
(2014) . . . . . . . . . . . . . . . . . . . . . . . 2202 Cal.Rptr.2d 495, 2001-1 Trade Cas. (CCH) P73218
(2000). . . . . . . . . . . . . . . . . . . .2431, 2432
CRST, Inc. v. Superior Court, 11 Cal.App.5th 1255, 218
Cal.Rptr.3d 664 (2017) . . . . . 405; 426; 3943–3948 Dafonte v. Up-Right, 2 Cal.4th 593, 7 Cal.Rptr.2d 238,
828 P.2d 140, 57 Cal. Comp. Cases 345 (1992) . 406;
Cruz v. Hendy International Co., 638 F.2d 719 (5th
1207B; 3902; 3933; 3960
Cir.). . . . . . . . . . . . . . . . . . . . .2941, 2942
Daggett v. Atchison, Topeka & Santa Fe Ry. Co., 48
Cruz v. Homebase, 83 Cal.App.4th 160, 99 Cal. Rptr. 2d
Cal.2d 655, 313 P.2d 557, 64 A.L.R.2d 1283
435 (2000) . . . . . . . . . . . . . . . . . 3943–3948
(1957). . . . . . . . . . . . . . . . . . . . . . . .206
CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S. Ct.
Dagher v. Ford Motor Co., 238 Cal.App.4th 905, 190 Cal.
2630, 180 L. Ed. 2d 637 (2011). . . . . .2903, 2904
Rptr. 3d 261 (2015). . . . . . . . . . . . . . . .1230
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658,
Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir.
113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) . . 800, 801;
2013) . . . . . . . . . . . . . . . . . . . . . . . 3053
803, 804
Dakota Gardens Apartment Investors 88B’’ v. Pudwill, 75
Cucinella v. Weston Biscuit Co., 42 Cal.2d 71, 265 P.2d
Cal.App.3d 346, 142 Cal.Rptr. 126 (1977) . . . 2102
513 (1954) . . . . . . . . . . . . . . . . . . . . . 710
Daley v. Regents of University of California, 39
Cuevas v. Contra Costa County, 11 Cal.App.5th 163, 217
Cal.App.5th 595, 252 Cal.Rptr.3d 273 (2019) . . 455
Cal. Rptr. 3d 519 (2017) . . . . . . . . . . . . 3903A
Daly v. General Motors Corp., 20 Cal.3d 725, 144
Cuevas-Martinez v. Sun Salt Sand, Inc, 35 Cal.App.5th
Cal.Rptr. 380, 575 P.2d 1162 (1978). . . . . .1207A
1109, 248 Cal.Rptr.3d 200 (2019) . . . . . . . . 1501
TC-16
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Damele v. Mack Trucks, Inc., 219 Cal.App.3d 29, 267 De Havilland v. FX Networks, LLC, 21 Cal.App.5th 845,
Cal.Rptr. 197 (1990) . . . . . . . . . . . . . . . . 452 230 Cal.Rptr.3d 625 (2018). . . . .1802; 1805, 1806
Dammann v. Golden Gate Bridge, Highway & De La Rosa v. City of San Bernardino, 16 Cal.App.3d
Transportation Dist., 22 Cal.App.4th 335, 150 739, 94 Cal.Rptr. 175 (1971) . . . . . . . . . . .1112
Cal.Rptr.3d 829 (2012) . . . . . . . . . . . . . . 1124 De La Vara v. Municipal Court, 98 Cal.App.3d 638, 159
Daniels v. Robbins, 182 Cal.App.4th 204, 105 Cal.Rptr. 648 (1979) . . . . . . . . . . . . . . . 4320
Cal.Rptr.3d 683 (2010) . . . . . . . . . . 1501; 1511 Deaile v. General Telephone Co. of California, 40
Daniels v. Select Portfolio Servicing, Inc., 201 Cal.App.3d 841, 115 Cal.Rptr. 582 (1974) . . . 1605
Cal.Rptr.3d 390, 246 Cal. App. 4th 1150 . . . . 3700, Decker v. City of Imperial Beach, 209 Cal.App.3d 349,
3701; 4920 257 Cal. Rptr. 356 (1989) . . . . . . . . . . . . . 425
Daniels, 182 Cal.App.4th 204, 105 Cal.Rptr.3d DeJung v. Superior Court, 169 Cal.App.4th 533, 87
683 . . . . . . . . . . . . . . . . . . . . . 1501; 1511 Cal.Rptr.3d 99 (2008). . . . . . . . . . . . . . .2511
Daniels, 246 Cal.App.4th 1150, 201 Cal. Rptr. 3d Del E. Webb Corp. v. Structural Materials Co., 123
390. . . . . . . . . . . . . . . . . . . . . . . . .3700 Cal.App.3d 593, 176 Cal.Rptr. 824 (1981) . . . . 305
Dart Industries, Inc. v. Commercial Union Ins. Co., 28 Delaney v. Baker, 20 Cal.4th 23, 82 Cal.Rptr.2d 610, 971
Cal.4th 1059, 124 Cal.Rptr.2d 142, 52 P.3d 79, 28 Cal. P.2d 986 (1999). .3100, 3101; 3102A, 3102B; 3103,
4th 1059 (2002). . . . . . . . . . . . . . . . . .2305 3104; 3106, 3107; 3109, 3110; 3113
Daugherty Co. v. Kimberly-Clark Corp., 14 Cal.App.3d DeLeon v. Commercial Manufacturing and Supply Co.,
151, 92 Cal.Rptr. 120 (1971) . . . . 313; 4523; 4542 148 Cal.App.3d 336, 195 Cal.Rptr. 867 (1983) . 1205
Daun v. Truax, 56 Cal.2d 647, 16 Cal.Rptr. 351, 365 P.2d Delfino v. Agilent Technologies, Inc., 145 Cal.App.4th
407 (1961) . . . . . . . . . . . . . . . . . . 402; 421 790, 52 Cal.Rptr.3d 376 (2006) . . . . . . . . . . 426
David v. Hernandez, 226 Cal.App.4th 578, 172 Delgadillo v. Television Center, Inc., 20 Cal.App.5th
Cal.Rptr.3d 204 (2014) . . . . . . . . . . . .418, 419 1078, 229 Cal.Rptr.3d 594 (2018) . . . . . . . 1009B
David Welch Co. v. Erskine & Tulley, 203 Cal.App.3d Delgado v. American Multi-Cinema, Inc., 72 Cal.App.4th
884, 250 Cal.Rptr. 339 (1988) . . . . . . . . . . 4106 1403, 85 Cal.Rptr.2d 838 (1999). . . . . . . . .1001
Davidson v. City of Westminster, 32 Cal.3d 197, 185 Delgado v. Interinsurance Exchange of Automobile Club
Cal.Rptr. 252, 649 P.2d 894 (1982) . . . . . . . 1602 of Southern California, 47 Cal.4th 302, 97 Cal.Rptr.3d
Davidson v. Quinn, 138 Cal.App.3d Supp. 9, 188 298, 211 P.3d 1083 (2009) . . . . . . . . . . . . 2336
Cal.Rptr. 421 (1982) . . . . . 4302, 4303; 4305; 4309 Delgado v. Trax Bar & Grill, 36 Cal.4th 224, 30 Cal. Rptr.
Davis v. Blue Cross of Northern California, 25 Cal.3d 3d 145, 113 P.3d 1159 (2005) . . . . . . . . . . 1005
418, 158 Cal.Rptr. 828, 600 P.2d 1060 (1979) . 2333 Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11
Davis v. Consolidated Freightways, 29 Cal.App.4th 354, Cal.4th 376, 45 Cal. Rptr. 2d 436, 902 P.2d 740
34 Cal.Rptr.2d 438 (1994) . . . . . . . . . . . . 1708 (1995) . . . . . . . . . . . . . . . . . . . 2202; 2204
Davis v. Elec. Arts, Inc., 775 F.3d 1172, 113 U.S.P.Q.2d Delon Hampton & Associates, Chartered v. Superior
1341 (9th Cir. 2015) . . . . . . . . . . . . . . . 1805 Court, 227 Cal.App.4th 250, 173 Cal.Rptr.3d 407
Davis v. Farmers Ins. Exchange, 245 Cal.App.4th 1302, (2014) . . . . . . . . . . . . . . . . . . . . . . . 4550
200 Cal.Rptr.3d 315 (2016). . . . .2430; 2512; 2700 Delta Farms Reclamation Dist. v. Superior Court, 33
Davis v. Honeywell Internat. Inc., 245 Cal.App.4th 477, Cal.3d 699, 190 Cal.Rptr. 494, 660 P.2d 1168
199 Cal.Rptr.3d 583 (2016) . . . . . . . . . 221; 435 (1983) . . . . . . . . . . . . . . . . . . . . . . . 1010
Davis v. Kiewit Pacific Co., 220 Cal.App.4th 358, 162 Demara v. The Raymond Corp., 13 Cal.App.5th 545, 221
Cal.Rptr.3d 805 (2013). . . . . . . . . . .3943–3948 Cal. Rptr. 3d 102 (2017). . . . . . . . . .1203, 1204
Davis v. United States, 854 F.3d 594 (9th Cir. Demaree v. Pederson, 880 F.3d 1066 (9th Cir.
2017) . . . . . . . . . . . . . . . . . . . . . . . 3022 2018) . . . . . . . . . . . . . . . . . . . . . . . 3051
Davis, Conservatorship of, 124 Cal.App.3d 313, 177 Cal. Demkowski v. Lee, 233 Cal.App.3d 1251, 284 Cal.Rptr.
Rptr. 369 (1981). . . .4000; 4002; 4005; 4007, 4008 919, 56 Cal. Comp. Cases 551 (1991). . . . . .3965
Day v. Lupo Vine Street, L.P., 22 Cal.App.5th 62, 231 Dennis v. Southard, 174 Cal.App.4th 540, 94 Cal.Rptr.3d
Cal.Rptr.3d 193 (2018) . . . . . . . . . . . . . . 1006 559 (2009). . . . . . . . . . . . . . . . .530A, 530B
Day; State v., 76 Cal.App.2d 536, 173 P.2d 399 Department of Fish & Game v. Superior Court, 197
(1946) . . . . . . . . . . . . . . . . . . . . . . . 3935 Cal.App.4th 1323, 129 Cal. Rptr. 3d 719
Daza v. Los Angeles Community College Dist., 247 (2011). . . . . . . . . . . . . . . . . . . .2020, 2021
Cal.App.4th 260, 202 Cal.Rptr.3d 115 (2016) . .3722
TC-17
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Department of Industrial Relations v. UI Video Stores, Diaz, 23 Cal.App.5th 859, 233 Cal.Rptr.3d 524 . . 2704
Inc., 55 Cal.App.4th 1084, 64 Cal.Rptr.2d 457 Dickson v. Burke Williams, Inc., 234 Cal.App.4th 1307,
(1997) . . . . . . . . . . . . . . . . . . . . . . . 2100 184 Cal. Rptr. 3d 774 (2015). . . . . . . . . . .2527
Dept. of California Highway Patrol, State ex rel. v. Diediker v. Peelle Financial Corp., 60 Cal.App.4th 288,
Superior Court, 60 Cal.4th 1002, 184 Cal. Rptr. 3d 70 Cal.Rptr.2d 442 (1997) . . . . . . . . . . . . 1903
354, 343 P.3d 415, 80 Cal. Comp. Cases 227 Diego v. City of Los Angeles, 15 Cal.App.5th 338, 223
(2015) . . . . . . . . . . . . . . . . . . . . . . . 3706 Cal.Rptr.3d 173 (2017) . . . . . . . . . . 2500; 2513
Dept. of Corrections & Rehabilitation, 168 Cal.App.4th Diego v. Pilgrim United Church of Christ, 231
231, 85 Cal.Rptr.3d 371 (2008) . . . . . . . . . . 400 Cal.App.4th 913, 180 Cal.Rptr.3d 359 (2014) . 2430;
Dept. of Transportation, People ex rel. v. Clauser/Wells 4603
Partnership, 95 Cal.App.4th 1066, 116 Cal.Rptr.2d Diesel Elec. Sales & Serv., Inc., 16 Cal.App.4th 202, 20
240 (2002). . . . . . . . . . . . . . . . . . . . .3507 Cal.Rptr.2d 62 . . . . . . . . 3320, 3321; 3332; 3440
Dept. of Transportation, People ex rel. v. Dry Canyon Diffey v. Riverside County Sheriff’s Dept., 84
Enterprises, LLC, 211 Cal.App.4th 486, 149 Cal. Rptr. Cal.App.4th 1031, 101 Cal.Rptr.2d 353 (2000) . 2540
3d 601 (2012). . . . . . . . . . . . . . . . . . .3513
Digerati Holdings, LLC v. Young Money Entertainment,
Dept. of Transportation, People ex rel. v. McNamara, 218 LLC, 194 Cal.App.4th 873, 123 Cal.Rptr.3d 736
Cal.App.4th 1200, 160 Cal.Rptr.3d 812 (2011). . . . . . . . . . . . . . . . . . . . . . . .325
(2013) . . . . . . . . . . . . . . . . . . . . . . 3509A
Dillingham-Ray Wilson v. City of Los Angeles, 182
Dept. of Transportation, People ex rel. v. Muller, 36 Cal. Cal.App.4th 1396, 106 Cal.Rptr.3d 691 (2010).4500;
3d 263, 203 Cal. Rptr. 772, 681 P.2d 1340 4541
(1984) . . . . . . . . . . . . . . . . . . . . . . . 3513
Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d
Dept. of Transportation, People ex rel. v. Presidio 912 (1968). . . . . . . . . . . . . . . . . . . . .1621
Performing Arts Foundation, 5 Cal.App.5th 190, 209
Dimidowich v. Bell & Howell, 803 F.2d 1473, 1986-2
Cal.Rptr.3d 461, 209 Cal. Rptr. 3d 461 (2016) . 3513
Trade Cas. (CCH) P67343, 1988-2 Trade Cas. (CCH)
Dept. of Transportation, People ex rel., 95 Cal.App.4th P68289 (9th Cir. 1986) . . . . . . . . . . 3402; 3408
1066, 116 Cal.Rptr.2d 240 . . . . . . . . . . . . 3507
Dimmick v. Alvarez, 196 Cal.App.2d 211, 16 Cal.Rptr.
Dept. of Water Resources, People ex rel. v. Andresen, 193 308 (1961). . . . . . . . . . . . . . . . . . . .3903A
Cal.App.3d 1144, 238 Cal.Rptr. 826 (1987) . . 3502;
Dimmick v. Dimmick, 58 Cal.2d 417, 24 Cal.Rptr. 856,
3508
374 P.2d 824 (1962) . . . . . . . . . . . . . . . 4900
Desai v. Farmers Insurance Exchange, 47 Cal.App.4th
Dincau v. Tamayose, 131 Cal.App.3d 780, 182 Cal.Rptr.
1110, 55 Cal.Rptr.2d 276 (1996) . . . . . . . . .2361
855 (1982) . . . . . . . . . . . . . . . . . . . . . 505
Deshotel v. Atchinson, Topeka & Santa Fe Ry. Co., 50
Dingle; People v., 56 Cal.App. 445, 205 P. 705
Cal.2d 664, 328 P.2d 449 (1958) . . . . . . 100; 5000
(1922). . . . . . . . . . . . . . . . . . . . . . . .709
Devereaux v. Abbey, 263 F.3d 1070 (9th Cir.
Dinslage v. City and County of San Francisco, 5
2001) . . . . . . . . . . . . . . . . . . . . . . . 3052
Cal.App.5th 368, 209 Cal.Rptr.3d 809 (2016). .2505
Deward v. Clough, 245 Cal.App.2d 439, 54 Cal.Rptr. 68
DiPalma v. Seldman, 27 Cal.App.4th 1499, 33
(1966). . . . . . . . . . . . . . . . . . . . . . . .100
Cal.Rptr.2d 219 (1994). . . . . . . . . . . . . . .601
Dewitt v. Monterey Ins. Co., 204 Cal.App.4th 233, 138
DiRosa v. Showa Denko K. K., 44 Cal.App.4th 799, 52
Cal.Rptr.3d 705 (2012) . . . . . . . . . . . . . . 2334
Cal.Rptr.2d 128 (1996). . . . . . . . . . . . . . .418
Di Mare v. Cresci, 58 Cal.2d 292, 23 Cal.Rptr. 772, 373
Disability Rights Montana, Inc. v. Batista, 930 F.3d 1090
P.2d 860 (1962) . . . . . . . . . . . . . . . . . . 416
(9th Cir. 2019) . . . . . . . . . . . . . . . . . . 3041
Di Rebaylio v. Herndon, 6 Cal.App.2d 567, 44 P.2d 581
Distefano v. Forester, 85 Cal.App.4th 1249, 102
(1935). . . . . . . . . . . . . . . . . . . . . . . .720
Cal.Rptr.2d 813, 102 Cal. Rptr. 2d 813 (2001) . . 470
Diamond v. Reshko, 239 Cal.App.4th 828, 191
Division of Labor Law Enforcement v. Transpacific
Cal.Rptr.3d 438, 191 Cal. Rptr. 3d 438 (2015). .217;
Transportation Co., 69 Cal.App.3d 268, 137 Cal.Rptr.
222
855 (1977) . . . . . . . . . . . . . . . . . . . . . 305
Diaz v. Carcamo, 41 Cal.4th 1148, 126 Cal.Rptr.3d 443,
Doctors’ Co. v. Superior Court, 49 Cal.3d 39, 260
253 P.3d 535 (2011) . . . . . . . . . . . . . 426; 724
Cal.Rptr. 183, 775 P.2d 508 (1989) . . . . . . . 3600
Diaz v. Grill Concepts Services, Inc., 23 Cal.App.5th 859,
Dodds v. Stellar, 77 Cal.App.2d 411, 175 P.2d 607
233 Cal.Rptr.3d 524 (2018) . . . . . . . . . . . 2704
(1946). . . . . . . . . . . . . . . . . . . . . . . .517
Diaz v. Oakland Tribune, 139 Cal.App.3d 118, 188
Cal.Rptr. 762 (1983). . . . . . . . . . . .1801; 1820
TC-18
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Dodge Center v. Superior Court, 199 Cal.App.3d 332, Douglas v. Fidelity National Ins. Co., 229 Cal.App.4th
244 Cal.Rptr. 789 (1988) . . . . . . . . . . . . . 724 392, 177 Cal.Rptr.3d 271 (2014) . . . . . 2307, 2308
Dodson v. J. Pacific, Inc., 154 Cal.App.4th 931, 64 Douglas v. Westfall, 113 Cal.App.2d 107, 248 P.2d 68
Cal.Rptr.3d 920 (2007) . . . . . . . . . . . . . 3905A (1952) . . . . . . . . . . . . . . . . . . . . . . . 3935
Doe v. Capital Cities, 50 Cal.App.4th 1038, 58 Douglas, 229 Cal.App.4th 392, 177 Cal.Rptr.3d
Cal.Rptr.2d 122 (1996) . 426; 2521A, 2521B; 2522A, 271. . . . . . . . . . . . . . . . . . . . . . . . .2308
2522B; 2525 Doupnik v. General Motors Corp., 225 Cal.App.3d 849,
Doe v. Los Angeles County Dept. of Children & Family 275 Cal.Rptr. 715 (1991) . . . . . . . . . . . . . 431
Services, 37 Cal.App.5th 675, 250 Cal.Rptr.3d 62 Downey Venture v. LMI Insurance Co., 66 Cal.App.4th
(2019). . . . . . . . . . . . . . . . . . . . . . . .400 478, 78 Cal.Rptr.2d 142 (1998) . . . . . . . . . 1501
Doe v. Roe, 218 Cal.App.3d 1538, 267 Cal.Rptr. 564 Downing v. Barrett Mobile Home Transport, Inc., 38
(1990). . . . . . . . . . . . . . . . . . . . . . . .429 Cal.App.3d 519, 113 Cal.Rptr. 277 (1974) . . . . 700
Doe v. Roman Catholic Archbishop of Los Angeles, 247 Dragna v. White, 45 Cal.2d 469, 289 P.2d 428
Cal.App.4th 953, 202 Cal.Rptr.3d 414 (2016). .3701 (1955) . . . . . . . . . . . . . . . . . . . . . . . 1407
Doe v. Roman Catholic Bishop of Sacramento, 189 Drake v. Dean, 15 Cal.App.4th 915, 19 Cal.Rptr.2d 325
Cal.App.4th 1423, 117 Cal.Rptr.3d 597 (2010) . 1925 (1993). . . . . . . . . . . . . . . . . . . . . . . .462
Doe v. United States Youth Soccer Assn., Inc., 8 Dreux v. Domec, 18 Cal. 83 (1861). . . . . . . . .1500
Cal.App.5th 1118, 214 Cal. Rptr. 3d 552 (2017) . 400 Drexler v. Petersen, 4 Cal.App.5th 1181, 209 Cal. Rptr.
Doe, 50 Cal.App.4th 1038, 58 Cal.Rptr.2d 122. . .2525 3d 332 (2016). . . . . . . . . . . . . . . . .555, 556
Dog Bite Statute. (Fullerton v. Conan, 87 Cal.App.2d DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe and
354, 197 P.2d 59 (1948) . . . . . . . . . . . . . . 463 Takeout III, Ltd., 30 Cal.App.4th 54, 35 Cal.Rptr.2d
Dolan v. Borelli, 13 Cal.App.4th 816, 16 Cal.Rptr.2d 714 515 (1994).300; 323; 336; VF-300; VF-303, VF-304
(1993). . . . . . . . . . . . . . . . . . . . . . . .555 Drouet v. Superior Court, 31 Cal.4th 583, 3 Cal.Rptr.3d
Dolnikov v. Ekizian, 222 Cal.App.4th 419, 165 205, 73 P.3d 1185 (2003) . . . . . . . . . 4321, 4322
Cal.Rptr.3d 658 (2013) . . . . . . . . . . . . . . 4902 Drummond v. Desmarais, 176 Cal.App.4th 439, 98
Dominguez v. Washington Mutual Bank, 168 Cal.Rptr.3d 183 (2009) . . . . . . . . . . . . . . 1501
Cal.App.4th 714, 85 Cal.Rptr.3d 705 (2008) . . 2508 Drust v. Drust, 113 Cal.App.3d 1, 169 Cal.Rptr. 750
Doney v. Tambouratgis, 23 Cal.3d 91, 151 Cal. Rptr. 347, (1980) . . . . . . . . . . . . . . . . . . . . .405; 407
587 P.2d 1160, 44 Cal. Comp. Cases 127 Drzewiecki v. H & R Block, Inc., 24 Cal.App.3d 695, 101
(1979) . . . . . . . . . . . . . . . . . . . 2800; 2810 Cal.Rptr. 169 (1972) . . . . . . . . . . . 2406; 3903P
Donlen v. Ford Motor Co., 217 Cal.App.4th 138, 158 Du Lac v. Perma Trans Products, Inc., 103 Cal.App.3d
Cal.Rptr.3d 180 (2013) . . . . . . . . . . . . . . 3201 937, 163 Cal.Rptr. 335 (1980) . . . . . . . . . . 1401
Donohue v. San Francisco Housing Authority, 16 Duarte v. Pacific Specialty Ins. Co., 13 Cal.App.5th 45,
Cal.App.4th 658, 20 Cal.Rptr.2d 148 (1993) . . 1004 220 Cal. Rptr. 3d 170 (2017). . . . . . . . . . .2308
Donovan v. Poway Unified School Dist., 167 Cal.App.4th Duarte v. Zachariah, 22 Cal.App.4th 1652, 28 Cal.Rptr.2d
567, 84 Cal.Rptr.3d 285 (2008) . . . . . . . . . 3069 88 (1994) . . . . . . . . . . . . . . . . . . . . 3905A
Dooley’s Hardware Mart v. Food Giant Markets, Inc., 21 Dubarry International, Inc. v. Southwest Forest
Cal.App.3d 513, 98 Cal.Rptr. 543, 1972 Trade Cas. Industries, Inc., 231 Cal.App.3d 552, 282 Cal.Rptr.
(CCH) P73823 (1971) . . . . . . . . . . . . . . 3302 181 (1991). . . . . . . . . . . . . . . . . . . . .3934
Doolin; People v., 45 Cal.4th 390, 87 Cal.Rptr.3d 209, DuBeck v. California Physicians’ Service, 234
198 P.3d 11. . . . . . . . . . . . . . . . . . . . .216 Cal.App.4th 1254, 184 Cal.Rptr.3d 743 (2015) . 323;
Dora v. Frontline Video, Inc., 15 Cal.App.4th 536, 18 336
Cal.Rptr.2d 790, 26 U.S.P.Q.2d (BNA) 1705 Dubner v. City & County of San Francisco, 266 F.3d 959
(1993). . . . . . . . . . . .1803; 1804B; 1806; 1820 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . 3021
Dore v. Arnold Worldwide, Inc., 39 Cal.4th 384, 46 Dubose v. Kansas City Southern Railway Co., 729 F.2d
Cal.Rptr.3d 668, 139 P.3d 56 (2006) . . .2424; 2710; 1026 (5th Cir. 1984) . . . . . . . . . . . . . . . 2942
3404, 3405; 3410 Ducey v. Argo Sales Co., 25 Cal.3d 707, 159 Cal.Rptr.
Dorman v. International Harvester Co., 46 Cal.App.3d 11, 835, 602 P.2d 755 (1979). . . . . .1112; 3720; 3725
120 Cal.Rptr. 516 (1975) . . . . . . . . . 1241, 1242 Duffey v. Tender Heart Home Care Agency, LLC, 31
Dorshkind v. Harry N. Koff Agency, Inc., 64 Cal.App.3d Cal.App.5th 232, 242 Cal. Rptr. 3d 460 (2019) . 3704
302, 134 Cal.Rptr. 344 (1976). . . . . . . . . . .100 Duffy v. Cavalier, 215 Cal.App.3d 1517, 264 Cal.Rptr.
Doty v. County of Lassen, 37 F.3d 540 (9th Cir. 740 (1989) . . . . . . . . . . . . . . . . . 4101; 4105
1994) . . . . . . . . . . . . . . . . . . . . . . . 3041
TC-19
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Duke v. Superior Court, 18 Cal.App.5th 490, 226 Cal. EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610
Rptr. 3d 807 (2017). . . . . . . . . . . . . . . .2100 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . 2560
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 E-Fab, Inc. v. Accountants, Inc. Services, 153
U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 Cal.App.4th 1308, 64 Cal.Rptr.3d 9 (2007) . . . 455;
(1985) . . . . . . . . . . . . . . . . . . . . . . . 1704 1925
Dunn v. Pacific Gas and Electric Co., 43 Cal.2d 265, 272 Egan v. Bishop, 8 Cal.App.2d 119, 47 P.2d 500
P.2d 745 (1954) . . . . . . . . . . . . . . . . . . 416 (1935). . . . . . . . . . . . . . . . . . . . . . . .372
Duran; People v., 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 Egan v. Mutual of Omaha Insurance Co., 24 Cal.3d 809,
P.2d 1322, 90 A.L.R.3d 1 (1976). . . . . . . . .4009 169 Cal.Rptr. 691, 620 P.2d 141 (1979) . 2330; 2332
Dutra v. Mercy Medical Center Mt. Shasta, 209 Ehret v. Congoleum Corp., 73 Cal.App.4th 1308, 87
Cal.App.4th 750, 146 Cal.Rptr.3d 922, 77 Cal. Comp. Cal.Rptr.2d 363 (1999) . . . . . . . . . . . . . . 3926
Cases 851 (2012) . . . . . . . . . . . . . . . . . 2430 Eicher v. Advanced Business Integrators, Inc, 151
DVD Copy Control Assn., Inc. v. Bunner, 31 Cal.4th 864, Cal.App.4th 1363, 61 Cal.Rptr.3d 114 (2007) . .2721
4 Cal.Rptr.3d 69, 75 P.3d 1, 68 U.S.P.Q.2d 1385 800 Contacts, Inc. v. Steinberg, 107 Cal.App.4th 568, 132
(2003) . . . . . . . . . . . . . . . . 4402, 4403; 4420 Cal.Rptr.2d 789 (2003) . . . . . . . . . . . . . . 4101
DVD Copy Control Assn., Inc. v. Bunner, 116 Eisenberg v. Alameda Newspapers, 74 Cal.App.4th 1359,
Cal.App.4th 241, 10 Cal.Rptr.3d 185, 69 U.S.P.Q.2d 88 Cal.Rptr.2d 802 (1999) . 1700; 1704; 1720; 1802;
1907 (2004) . . . . . . . . . . . . . . . . . . . . 4403 2423; 2710
Dynamex, 4 Cal.5th 903, 232 Cal.Rptr.3d 1, 416 P.3d 1, El Monte, City of v. Superior Court, 29 Cal.App.4th 272,
83 Cal. Comp. Cases 817 . . . . . . . . . 2705; 3704 34 Cal.Rptr.2d 490 (1994) . 3941, 3942; 3944; 3946;
3948, 3949
E Elam v. College Park Hospital, 132 Cal.App.3d 332, 183
Cal.Rptr. 156 (1982) . . . . . . . . . . . . . . . . 516
E. H. Morrill Co. v. State, 65 Cal.2d 787, 56 Cal.Rptr.
Elden v. Sheldon, 46 Cal.3d 267, 250 Cal.Rptr. 254, 758
479, 423 P.2d 551 (1967). . . . . . . . . . . . .4500
P.2d 582 (1988) . . . . . . . . . . . . . . 1621; 3920
E. J. Franks Construction, Inc. v. Sahota, 226 Cal.App.4th
Elder; People v., 11 Cal.App.5th 123, 217 Cal.Rptr.3d
1123, 172 Cal.Rptr.3d 778 (2014). . . . . . . . .371
493 (2017) . . . . . . . . . . . . . . . . . . . . . 411
E.W. Bliss Co. v. Superior Court, 210 Cal.App.3d 1254,
Elkinton v. California State Automobile Assn., Interstate
258 Cal.Rptr. 783 (1989) . . . . . . . . . . . . .3800
Ins. Bureau, 173 Cal.App.2d 338, 343 P.2d 396
Eagar v. McDonnell Douglas Corp., 32 Cal.App.3d 116,
(1959). . . . . . . . . . . . . . . . . . . . . . . .720
107 Cal.Rptr. 819 (1973) . . . . . . . . . . . . . 701
Ellis v. D’Angelo, 116 Cal.App.2d 310, 253 P.2d 675
Early, Conservatorship of, 35 Cal.3d 244, 673 P.2d 209,
(1953). . . . . . . . . . . . . . . . . . . . . . . .428
197 Cal.Rptr. 539 (1983) . . . . . . . . . 4007, 4008
Elmore v. American Motors Corp., 70 Cal.2d 578, 75
Earp v. Nobmann, 122 Cal.App.3d 270, 175 Cal.Rptr. 767
Cal.Rptr. 652, 451 P.2d 84 (1969) . . . . . . . . 1200
(1981) . . . . . . . . . . . . . . . . . . . . . . . 1730
Elsheref v. Applied Materials, Inc., 223 Cal.App.4th 451,
Easton v. Strassburger, 152 Cal.App.3d 90, 199 Cal.Rptr.
167 Cal.Rptr.3d 257, 79 Cal. Comp. Cases 207
383. . . . . . . . . . . . . . . . . . . . . . . . .4108
(2014) . . . . . . . . . . . . . . . . . . . . . . . 1200
Eastwood v. Superior Court, 149 Cal.App.3d 409, 198
Elsner v. Uveges, 34 Cal.4th 915, 22 Cal.Rptr.3d 530, 102
Cal.Rptr. 342 (1983) . . . . . . 1803; 1804A, 1804B
P.3d 915, 69 Cal. Comp. Cases 1511, 20 O.S.H. Cas.
eBay, Inc. v. Bidder’s Edge, Inc., 100 F.Supp.2d 1058, 54 (BNA) 2078 (2004) . . . . . . . . . . . . 418; 1009D
U.S.P.Q.2d 1798 (N.D. Cal. 2000) . . . . . . . . 2101
Emerick v. Raleigh Hills Hospital, 133 Cal.App.3d 575,
Economy Refining & Service Co. v. Royal Nat’l Bank, 20 184 Cal.Rptr. 92 (1982) . . . . . . . . . . . . . . 515
Cal.App.3d 434, 97 Cal.Rptr. 706, 49 A.L.R.3d 872
Emery v. Los Angeles Ry. Corp., 61 Cal.App.2d 455, 143
(1971) . . . . . . . . . . . . . . . . . . . . . . . 4200
P.2d 112 (1943). . . . . . . . . . . . . . . . . . .404
EDC Assocs. v. Gutierrez, 153 Cal.App.3d 167, 200
Emeryville Redevelopment v. Harcros Pigments, 101
Cal.Rptr. 333 (1984) . . . . . . . . . . . . . . . 4324
Cal.App.4th 1083, 125 Cal.Rptr.2d 12 (2002) . 3507;
Eddy v. Sharp, 199 Cal.App.3d 858, 245 Cal.Rptr. 211 VF-3502
(1988) . . . . . . . . . . . . . . . . . . . . . . . 1903
Emmons v. Southern Pacific Transportation Co., 701 F.2d
Edmunds v. Valley Circle Estates, 16 Cal.App.4th 1290, 1112 (5th Cir. 1983) . . . . . . . . . . . . . . . 2922
20 Cal. Rptr. 2d 701 (1993) . . . . . . . . . . . 4111
Eng v. Brown, 21 Cal.App.5th 675, 230 Cal.Rptr.3d 771
Edson v. City of Anaheim, 63 Cal.App.4th 1269, 74 (2018) . . . . . . . . . . . . . . . . . . . . . . . 3711
Cal.Rptr.2d 614 (1998) . . . . . . . . . . 440; 1305A
Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) . . . 3053
Edwards v. Lang, 198 Cal.App.2d 5, 18 Cal.Rptr. 60
Eng, 21 Cal.App.5th 675, 230 Cal.Rptr.3d 771. . .3711
(1961). . . . . . . . . . . . . . . . . . . . . . . .331
TC-20
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Eng, 552 F.3d 1062 . . . . . . . . . . . . . . . . . 3053 Etter v. Veriflo Corp., 67 Cal.App.4th 457, 79 Cal.Rptr.2d
Engalla v. Permanente Medical Group, Inc., 15 Cal.4th 33 (1998) . . . . . . . . . . . . . . . . . . . . 2521A
951, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997) . 1900; Evan F. v. Hughson United Methodist Church, 8
1902; 1907, 1908 Cal.App.4th 828, 10 Cal.Rptr.2d 748 (1992) . . . 426
Ennabe v. Manosa, 58 Cal.4th 697, 168 Cal.Rptr.3d 440, Evans v. City of Bakersfield, 22 Cal.App.4th 321, 27
319 P.3d 201 (2014) . . . . . . . . . . . 422; VF-406 Cal.Rptr.2d 406 (1994). . .440, 441; 1305A, 1305B;
Enriquez; People v., 42 Cal.App.4th 661, 49 Cal.Rptr.2d 1408
710 (1996) . . . . . . . . . . . . . . . . . . . . . 709 Ewart v. Southern California Gas Co., 237 Cal.App.2d
Enterprise Leasing Corp. v. Shugart Corp, 231 163, 46 Cal.Rptr. 631 (1965) . . . . . . . . . . . 432
Cal.App.3d 737, 282 Cal.Rptr. 620 (1991) . . . 2100 Ewing v. Cloverleaf Bowl, 20 Cal.3d 389, 143 Cal.Rptr.
EPA Real Estate Partnership v. Kang, 12 Cal.App.4th 13, 572 P.2d 1155 (1978) . . . . . . . . . . . . . 903
171, 15 Cal.Rptr.2d 209 (1992) . . . . . . . . . . 304 Ewing v. Goldstein, 120 Cal.App.4th 807, 15 Cal.Rptr.3d
Erbe Corp. v. W & B Realty Co., 255 Cal.App.2d 773, 63 864 (2004). . . . . . . . . . . . . . . . .503A, 503B
Cal.Rptr. 462 (1967) . . . . . . . . . . . . . . . 4341 Ex rel. (see name of relator)
Erfurt v. State of California, 141 Cal.App.3d 837, 190 Exxon Corp. v. Superior Court, 51 Cal.App.4th 1672, 60
Cal.Rptr 569 (1983) . . . . . . . . . . . . 1103; 1122 Cal.Rptr.2d 195, 1997-1 Trade Cas. (CCH) P71677
Erie Railroad Company v. Winfield, 244 U.S. 170, 37 (1997). . . . . . . . . . . . .3400, 3401; 3405; 3413
S.Ct. 556, 61 L.Ed. 1057 (1917). . . . . . . . .2926
Eriksson v. Nunnink, 191 Cal.App.4th 826, 120 F
Cal.Rptr.3d 90 (2011). . . . . . . . . .425; 451; 471
Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058
Eriksson v. Nunnink, 233 Cal.App.4th 708, 183
(9th Cir. 2016) . . . . . . . . . . . . . . . . . . 1812
Cal.Rptr.3d 234 (2015) . . . . . . . . 425; 451; 1621
Faigin v. Signature Group Holdings, Inc., 211
Erkenbrecher v. Grant, 187 Cal. 7, 200 P. 641
Cal.App.4th 726, 150 Cal. Rptr. 3d 123 (2012) . 2403
(1921) . . . . . . . . . . . . . . . . . . . . 104; 5006
Fair v. BNSF Railway Co., 238 Cal.App.4th 269, 189
Erlach v. Sierra Asset Servicing, LLC, 226 Cal.App.4th
Cal. Rptr. 3d 150 (2015) . . . . . . 2900; 2903, 2904
1281, 173 Cal.Rptr.3d 159 (2014). . . .3905A; 4320
Fairfield v. American Photocopy Equipment Co., 138
Erler v. Five Points Motors, Inc., 249 Cal.App.2d 560, 57
Cal.App.2d 82, 291 P.2d 194 (1955). . . . . . .1800
Cal.Rptr. 516 (1967). . . . . . . . . . . .2420; 2422
Fairlane Estates, Inc. v. Carrico Constr. Co., 228
Erlich v. Etner, 224 Cal.App.2d 69, 36 Cal.Rptr. 256
Cal.App.2d 65, 39 Cal.Rptr. 35 (1964) . . . . . 4531
(1964) . . . . . . . . . . . . . . . . . . . . . . . 1731
Far West Financial Corp. v. D & S Co., Inc., 46 Cal.3d
Erlich v. Menezes, 21 Cal.4th 543, 87 Cal. Rptr. 2d 886,
796, 251 Cal.Rptr. 202, 760 P.2d 399 (1988) . . 3800
981 P.2d 978 (1999). . .350, 351; 354; 3903G; 4530
Farber v. Olkon, 40 Cal.2d 503, 254 P.2d 520
Erlich, 224 Cal.App. 2d 69, 36 Cal.Rptr. 256. . . .1731
(1953). . . . . . . . . . . . . . . . . . . . . . . .531
Ersa Grae Corp. v. Fluor Corp., 1 Cal.App.4th 613, 2
Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128
Cal.Rptr.2d 288 (1991). . . . . . . . . . . . . . .324
L.Ed.2d 811 (1994) . . . . . . . . . 3003; 3040–3043
Escamilla v. Marshburn Brothers, 48 Cal.App.3d 472,
Farmers & Merchants Trust Co. v. Vanetik, 33
121 Cal.Rptr. 891, 90 L.R.R.M. (BNA) 2061
Cal.App.5th 638, 245 Cal.Rptr.3d 608 (2019) . 3940;
(1975) . . . . . . . . . . . . . . . . . . . . . . . 5000
3942, 3943; 3945; 3947; 3949
Esparza v. Safeway, Inc., 36 Cal.App.5th 42, 247
Farmers Ins. Exchange v. Zerin, 53 Cal.App.4th 445, 61
Cal.Rptr.3d 875 (2019). . . . . . . . . . . . . . .454
Cal.Rptr.2d 707 (1997) . . . . . . . . . . . . 370–374
Espejo v. The Copley Press, Inc., 13 Cal.App.5th 329,
Farmers Insurance Group v. County of Santa Clara, 11
221 Cal. Rptr. 3d 1, 82 Cal. Comp. Cases 852
Cal.4th 992, 47 Cal.Rptr.2d 478, 906 P.2d 440
(2017) . . . . . . . . . . . . . . . . . . . . . . . 2705
(1995) . . . . . . . . . . . . . . . . . . . 3720; 3723
Espinosa v. Little Company of Mary Hospital, 31
Farrington v. A. Teichert & Son, Inc., 59 Cal.App.2d 468,
Cal.App.4th 1304, 37 Cal.Rptr.2d 541 (1995) . . 431
139 P.2d 80 (1943) . . . . . . . . . . . . . . . . 2100
Essick v. Union Pacific Ry. Co., 182 Cal.App.2d 456, 6
FAS Techs. v. Dainippon Screen Mfg., 2001 U.S. Dist.
Cal.Rptr. 208 (1960) . . . . . . . . . . . . . . . . 804
LEXIS 15444 (N.D. Cal. 2001) . . . . . . . . . 4409
Estate of (see name of party)
Faselli v. Southern Pacific Co., 150 Cal.App.2d 644, 310
Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. P.2d 698 (1957) . . . . . . . . . . . . . . . . . . 707
2d 251 (1976). . . . . . . . . . . . . . . . . . .3041
Fashauer v. New Jersey Transit Rail Operations, 57 F.3d
Estuary Owners Assn. v. Shell Oil Co., 13 Cal.App.5th 1269 (3d Cir. 1995). . . . . . . . . . . . . . . .2905
899, 221 Cal.Rptr.3d 190 (2017). . . . . . . . .4551
TC-21
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Fearon v. Department of Corrections, 162 Cal.App.3d Filip v. Bucurenciu, 129 Cal.App.4th 825, 28 Cal.Rptr.3d
1254, 209 Cal.Rptr. 309 (1984) . . . . . . . . . 2100 884 (2005) . . . . . . . . . . . . . . . . . 4200, 4201
Featherstone v. Southern California Permanente Medical Filosa v. Alagappan, 59 Cal.App.5th 772, 273 Cal.Rptr.3d
Group, 10 Cal.App.5th 1150, 217 Cal.Rptr.3d 258 731 (2020) . . . . . . . . . . . . . . . . . . . . . 555
(2017). . . . . . . . . . . . .2430; 2509; 2541; 2546 Finch v. Brenda Raceway Corp., 22 Cal.App.4th 547, 27
Federal Deposit Ins. Corp. v. Dintino, 167 Cal.App.4th Cal.Rptr.2d 531, 59 Cal. Comp. Cases 131
333, 84 Cal.Rptr.3d 38 (2008) . . . . . . . . . . 1925 (1994) . . . . . . . . . . . . . . . . . . . . . . . 2710
Feichko v. Denver & Rio Grande Western Railroad Co., Finch Aerospace Corp. v. City of San Diego, 8
213 F.3d 586 (10th Cir. 2000) . . . . . . . . . . 2926 Cal.App.5th 1248, 214 Cal.Rptr.3d 628, 214 Cal. Rptr.
Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 3d 628 (2017). . . . . . . . . . . . . . . . . . .1730
Cal.Rptr. 368, 695 P.2d 665 (1985) . . . 504; 3903C, Fio Rito v. Fio Rito, 194 Cal.App.2d 311, 14 Cal.Rptr.
3903D 845 (1961) . . . . . . . . . . . . . . . . . . . . . 332
Felgenhauer v. Soni, 121 Cal.App.4th 445, 17 Cal.Rptr.3d Fiol v. Doellstedt, 50 Cal.App.4th 1318, 58 Cal.Rptr.2d
135 (2004) . . . . . . . . . . . . . . . . . 4900, 4901 308 (1996) . . . . . . . . . . . . 2522A–2522C; 2525
Felix v. Asai, 192 Cal.App.3d 926, 237 Cal. Rptr. 718 Fiorini v. City Brewing Co., LLC, 231 Cal.App.4th 306,
(1987). . . . . . . . . . . . . . . . . . . .3725, 3726 179 Cal.Rptr.3d 827 (2014) . . . . . . 422; 427; 1248
Fellows v. National Enquirer, 42 Cal.3d 234, 228 Fireman’s Fund American Insurance Co. v. Escobedo, 80
Cal.Rptr. 215, 721 P.2d 97, 57 A.L.R.4th 223 Cal.App.3d 610, 145 Cal.Rptr. 785 (1978) . . . 2308
(1986) . . . . . . . . . . . . . . . . . . . . . . . 1802 First Capital Life Insurance Co., In re, 34 Cal.App.4th
Felmlee v. Falcon Cable TV, 36 Cal.App.4th 1032, 43 1283, 40 Cal.Rptr.2d 816 (1995) . . . . . . . . . 307
Cal.Rptr.2d 158, 60 Cal. Comp. Cases 595 Fisch v. Los Angeles Metropolitan Transit Authority, 219
(1995) . . . . . . . . . . . . . . . . . . . 1004; 3713 Cal.App.2d 537, 33 Cal.Rptr. 298 (1963). . . . .213
Fenimore v. Regents of University of California, 200 Fish Construction Co. v. Moselle Coach Works, Inc., 148
Cal.Rptr.3d 345, 245 Cal. App. 4th 1339 . . . . 3103; Cal.App.3d 654, 196 Cal.Rptr. 174 (1983) . . . 4301,
3113; 3116 4302; 4304; 4306; 4320
Ferlauto v. Hamsher, 74 Cal.App.4th 1394, 88 Fisher v. City of Berkeley, 37 Cal.3d 644, 209 Cal.Rptr.
Cal.Rptr.2d 843 (1999) . . . . . . . . . . . . . . 1707 682, 693 P.2d 261, 1985-1 Trade Cas. (CCH) P66473
Fermino v. Fedco, Inc., 7 Cal.4th 701, 30 Cal.Rptr.2d 18, (1984) . . . . . . . . . . . . . . . . . . . . . . . 4325
872 P.2d 559, 59 Cal. Comp. Cases 296 Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d
(1994) . . . . . . . . . 1400; 1409; 2800–2803; 2805 590, 262 Cal.Rptr. 842 (1989) . . 2505; 2520; 2521B,
Fernandes v. Singh, 16 Cal.App.5th 932, 224 Cal.Rptr.3d 2521C; 2522B, 2522C; 2524
751 (2017) . . . 3940; 3942, 3943; 3945; 3947; 3949 Fitzsimons v. California Emergency Physicians Medical
Ferrari v. Grand Canyon Dories, 32 Cal.App.4th 248, 38 Group, 205 Cal.App.4th 1423, 141 Cal.Rptr.3d 265
Cal.Rptr.2d 65 (1995) . . . . . . . . . . . . . . . 472 (2012) . . . . . . . . . . . . . . . . . . . . . . . 2505
Ferraro v. Southern California Gas Co., 102 Cal.App.3d Flanagan v. Flanagan, 27 Cal.4th 766, 117 Cal.Rptr.2d
33, 162 Cal.Rptr. 238 (1980). . . . . . . . . .3903G 574, 41 P.3d 575 (2002) . . . . . . . . . . . . . 1809
Ferrick v. Santa Clara University, 231 Cal.App.4th 1337, Fleet v. Bank of America N.A., 229 Cal.App.4th 1403,
181 Cal.Rptr.3d 68 (2014) . . . . . . . . . . . . 2430 178 Cal.Rptr.3d 18 (2014) . . . . . . . . . . . . 3700
Fetters v. County of Los Angeles, 243 Cal.App.4th 825, Fletcher v. Western Life Insurance Co, 10 Cal.App.3d
196 Cal. Rptr. 3d 848 (2016). . . . . . . . . . .3020 376, 89 Cal.Rptr. 78 (1970) . 1600–1602; 1604, 1605
Fibreboard Paper Products Corp. v. East Bay Union of Flojo Internat., Inc. v. Lassleben, 4 Cal.App.4th 713, 6
Machinists, Local 1304, United Steelworkers of Cal.Rptr.2d 99 (1992) . . . . . . . . . . . . . . . 302
America, AFL-CIO, 227 Cal.App.2d 675, 39 Cal.Rptr. Flores v. Arroyo, 56 Cal.2d 492, 15 Cal.Rptr. 87, 364 P.2d
64 (1964) . . . . . . . . . . . . . . . . . . . . 3903N 263 (1961). . . . . . . . . . . . . . . .3903H, 3903I
Field v. Century 21 Klowden-Forness Realty, 63 Flores v. AutoZone West Inc., 161 Cal.App.4th 373, 74
Cal.App.4th 18, 73 Cal.Rptr.2d 784 (1998). . .4107, Cal.Rptr.3d 178 (2008) . . . . . . . . . . . 426; 3722
4108 Flores v. County of L.A., 758 F.3d 1154 (9th Cir.
Fields v. Riley, 1 Cal.App.3d 308, 81 Cal.Rptr. 671 2014) . . . . . . . . . . . . . . . . . . . . . . . 3003
(1969) . . . . . . . . . . . . . . . . . . . . . . . 3922 Flores v. Enterprise Rent-A-Car Co., 188 Cal.App.4th
Fieldstone Co. v. Briggs Plumbing Products, Inc., 54 1055, 116 Cal.Rptr.3d 71 (2010) . . . . . . . . . 724
Cal.App.4th 357, 62 Cal.Rptr.2d 701 (1997) . . 1243 Flores v. Liu, 60 Cal.App.5th 278, 274 Cal.Rptr.3d 444
Filbin v. Fitzgerald, 211 Cal.App.4th 154, 149 (2021). . . . . . . . . . . . . . . . . . . . . . . .533
Cal.Rptr.3d 422 (2012). . . . . . . . . . . . . . .601
TC-22
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Flores v. Presbyterian Intercommunity Hospital, 63 Fox v. Pacific Southwest Airlines, 133 Cal.App.3d 565,
Cal.4th 75, 201 Cal.Rptr.3d 449, 369 P.3d 229 184 Cal.Rptr. 87 (1982) . . . . . . . . . . 3921, 3922
(2016) . . . . . . . . . . . . . . . . . . . . . 555, 556 Fox, 35 Cal.4th 797, 27 Cal.Rptr.3d 661, 110 P.3d
Flores v. Southcoast Automotive Liquidators, Inc., 17 914 . . . . . . . . . . . . . . . . . . . . . . . . . 455
Cal.App.5th 841, 226 Cal.Rptr.3d 12 (2017) . . 4710 Foxen v. Carpenter, 6 Cal.App.5th 284, 211 Cal.Rptr.3d
Flournoy v. State of California, 275 Cal.App.2d 806, 80 372 (2016) . . . . . . . . . . . . . . . . . . 610, 611
Cal.Rptr. 485 (1969) . . . . . . . . . . . . . . . 1122 Foy v. Greenblott, 141 Cal.App.3d 1, 190 Cal.Rptr. 84
Flowers v. Los Angeles County Metropolitan (1983). . . . . . . . . . . . . . . . . . . . . . . .511
Transportation Authority, 243 Cal. App. 4th 66, 196 Fragale v. Faulkner, 110 Cal.App.4th 229, 1 Cal.Rptr.3d
Cal. Rptr. 3d 352 (2015). . . . . . . . . .2701, 2702 616 (2003) . . . . . . . . . . . . . . . . . 1923, 1924
Flowers v. Prasad, 238 Cal.App.4th 930, 190 Cal.Rptr.3d Fraijo v. Hartland Hospital, 99 Cal.App.3d 331, 160
33 (2015) . . . . . . . . . . . . . . . . . . . . . 3060 Cal.Rptr. 246 (1979) . . . . . . . . . . . . . 505; 508
Flowers v. Torrance Memorial Hospital Medical Center, 8 Frances T. v. Village Green Owners Assn., 42 Cal. 3d
Cal.4th 992, 35 Cal.Rptr.2d 685, 884 P.2d 142 490, 229 Cal. Rptr. 456, 723 P.2d 573 (1986). .1005
(1994) . . . . . . . . . . . . . . . . . . . . .401; 500 Francis v. Sauve, 222 Cal.App.2d 102, 34 Cal.Rptr. 754
Flowmaster, Inc. v. Superior Court, 16 Cal.App.4th 1019, (1963) . . . . . . . . . . . . . . . . 3921, 3922; 3932
20 Cal.Rptr.2d 666, 58 Cal. Comp. Cases 333 Frank T. Hickey, Inc. v. Los Angeles Jewish Community
(1993) . . . . . . . . . . . . . . . . . . . . . . . 2804 Council, 128 Cal.App.2d 676, 276 P.2d 52
Fogarty v. Superior Court, 117 Cal.App.3d 316, 172 (1954) . . . . . . . . . . . . . . . . 4520; 4522; 4540
Cal.Rptr. 594 (1981) . . . . . . . . . . . . . . . . 556 Franklin v. Gibson, 138 Cal.App.3d 340, 188 Cal.Rptr. 23
Fogo v. Cutter Laboratories, Inc., 68 Cal.App.3d 744, 137 (1982). . . . . . . . . . . . . . . . . . . . . . . .712
Cal.Rptr. 417 (1977) . . . . . . . . . . . . . . . 1230 Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP, 184
Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.App.4th 313, 109 Cal.Rptr.3d 143 (2010). .1501
Cal.Rptr. 211, 765 P.2d 373 (1988). . . .2400, 2401; Fraser-Yamor Agency, Inc. v. County of Del Norte, 68
2403; 2423 Cal.App.3d 201, 137 Cal.Rptr. 118 (1977) . . . 2307
Folkestad v. Burlington Northern, Inc., 813 F.2d 1377 Frausto v. Dept. of California Highway Patrol, 53
(9th Cir. 1987) . . . . . . . . . . . . . . . 2941, 2942 Cal.App.5th 973, 267 Cal.Rptr.3d 889 (2020) . . 400
Foltz v. Johnson, 16 Cal.App.5th 647, 224 Cal. Rptr. 3d Fredericksen v. McCosker, 143 Cal.App.2d 114, 299 P.2d
506 (2017) . . . . . . . . . . . . . . . . . . . . . 470 908 (1956) . . . . . . . . . . . . . . . . . 4301; 4306
Fong v. East West Bank, 19 Cal.App.5th 224, 227 Cal. Fredette v. City of Long Beach, 187 Cal.App.3d 122, 231
Rptr. 3d 838 (2018). . . . . . . . . . . . . . . .2100 Cal.Rptr. 598 (1986) . . . . . . . . . . . . . . . 1102
Fontaine v. National Railroad Passenger Corp., 54 Freeman v. San Diego Assn. of Realtors, 77 Cal.App.4th
Cal.App.4th 1519, 63 Cal.Rptr.2d 644 (1997) . 2920, 171, 91 Cal.Rptr.2d 534, 1999-2 Trade Cas. (CCH)
2921 P72745, 2000-1 Trade Cas. (CCH) P72745
Ford v. Gouin, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d (1999). . . . . . . . . . . . .3400; 3403; 3420; 3423
724 (1992) . . . . . . . . . . . . . . . . . . . . . 470 Fremont, City of v. Fisher, 160 Cal.App.4th 666, 73
Ford v. Miller Meat Co., 28 Cal.App.4th 1196, 33 Cal.Rptr.3d 54 (2008) . . . . . . . . . 3511A, 3511B
Cal.Rptr.2d 899 (1994) . . . . . . . . . . . . . . 1233 Fremont Compensation Insurance Co. v. Hartnett, 19
Fortman v. Förvaltningsbolaget Insulan AB, 212 Cal.App.4th 669, 23 Cal.Rptr.2d 567, 58 Cal. Comp.
Cal.App.4th 830, 151 Cal. Rptr. 3d 320 (2013) . 1621 Cases 655 (1993). . . . . . . . . . . . . . . . . .720
Foster v. City of Indio, 908 F.3d 1204 (9th Cir. Fremont Indemnity Co. v. Fremont General Corp., 148
2018) . . . . . . . . . . . . . . . . . . . . . . . 3020 Cal.App.4th 97, 55 Cal.Rptr.3d 621 (2007) . . . 2100
Foster v. Xerox Corp., 40 Cal.3d 306, 219 Cal.Rptr. 485, Fretland v. County of Humboldt, 69 Cal.App.4th 1478, 82
707 P.2d 858 (1985) . . . . . . . . . . . . . . . 2802 Cal.Rptr.2d 359, 64 Cal. Comp. Cases 195, 29
Four Seas Inv. Corp. v. International Hotel Tenants’ Cal.App.4th 1478 (1999) . . . . . . . . . . . . . 2801
Assn., 81 Cal.App.3d 604, 146 Cal.Rptr. 531 Friddle v. Epstein, 16 Cal.App.4th 1649, 21 Cal.Rptr.2d
(1978) . . . . . . . . . . . . . . . . . . . . . . . 4321 85 (1993) . . . . . . . . . . . . . . . . . . . . . 1809
Fowler v. Security-First National Bank, 146 Cal.App.2d Friedman v. Friedman, 20 Cal.App.4th 876, 24
37, 303 P.2d 565 (1956) . . . . . . . . . . . . . . 302 Cal.Rptr.2d 892 (1993). . . . . . . . . . . . . . .305
Fox v. Aced, 49 Cal.2d 381, 317 P.2d 608 (1957) . 2335 Frommoethelydo v. Fire Insurance Exchange, 42 Cal.3d
Fox v. City and County of San Francisco, 47 Cal.App.3d 208, 228 Cal.Rptr. 160, 721 P.2d 41 (1986). . .2332
164, 120 Cal.Rptr. 779 (1975) . . . . . . . . 403; 700 Fross v. Wotton, 3 Cal.2d 384, 44 P.2d 350 (1935) . 215
Fox v. Ethicon Endo-Surgery, 35 Cal.4th 797, 27
Cal.Rptr.3d 661, 110 P.3d 914 (2005). . . . . . .455
TC-23
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Fuentes v. Berry, 38 Cal.App.4th 1800, 45 Cal.Rptr.2d Gami v. Mullikin Medical Center, 18 Cal.App.4th 870, 22
848 (1995) . . . . . . . . . . . . . . . . . 1500–1502 Cal.Rptr.2d 819 (1993) . . . . . . . . . . . .512, 513
Fulle v. Kanani, 7 Cal.App.5th 1305, 212 Cal.Rptr.3d 920 Gannon v. Elliot, 19 Cal.App.4th 1, 23 Cal.Rptr.2d 86
(2017) . . . . . . . . . . . . . . . . 2002, 2003; 2031 (1993). . . . . . . . . . . . . . . . . . . . . . . .518
Fuller v. Department of Transportation, 38 Cal.App.5th Gantt v. Sentry Ins., 1 Cal.4th 1083, 4 Cal. Rptr. 2d 874,
1034, 251 Cal.Rptr.3d 549 (2019) . . . . . . . . 1102 824 P.2d 680, 57 Cal. Comp. Cases 192
Fuller v. First Franklin Financial Corp., 216 Cal.App.4th (1992) . . . . . . . . . . . . . . . 2430–2432; 3903P
955, 163 Cal.Rptr.3d 44 (2013) . . . . . . . . . 1925 Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164
Fundin v. Chicago Pneumatic Tool Co., 152 Cal.App.3d L.Ed.2d 689 (2006). . . . . . . . . . . . . . . .3053
951, 199 Cal.Rptr. 789 (1984) . . . . . . . . . . 1241 Garcia v. Estate of Norton, 183 Cal.App.3d 413, 228
Furla v. Jon Douglas Co., 65 Cal.App.4th 1069, 76 Cal.Rptr. 108 (1986) . . . . . . . . . . . . . . . . 460
Cal.Rptr.2d 911 (1998). . . . . . . . . . .1904; 4110 Garcia v. Holt, 242 Cal.App.4th 600, 195 Cal.Rptr.3d 47
Furry v. East Bay Publishing, LLC, 30 Cal.App.5th 1072, (2015) . . . . . . . . . . . . . . . . . . . . . . . 1006
242 Cal. Rptr. 3d 144 (2018). . . . . . . . . . .2703 Garcia v. Joseph Vince Co., 84 Cal.App.3d 868, 148
Furtado v. State Personnel Bd., 212 Cal.App.4th 729, 151 Cal.Rptr. 843 (1978) . . . . . . . . . . . . . . . 1201
Cal.Rptr.3d 292 (2013) . . . . . . . 2540, 2541; 2543 Garcia v. Rockwell Internat. Corp., 187 Cal.App.3d 1556,
232 Cal.Rptr. 490 (1986) . . . . . . . . . . . . .2430
G Garcia v. Seacon Logix Inc., 238 Cal.App.4th 1476, 190
Cal.Rptr.3d 400, 80 Cal. Comp. Cases 841
G.B. Page v. Bakersfield Uniform & Towel Supply Co., (2015) . . . . . . . . . . . . . . . . . . . . . . . 3704
239 Cal.App.2d 762, 49 Cal.Rptr. 46, 1966 Trade Cas.
Garcia v. Truck Ins. Exchange, 36 Cal.3d 426, 204
(CCH) P71694 (1966) . . . . . . . . . . . 3333, 3334
Cal.Rptr. 435, 682 P.2d 1100 (1984) . . . . . . . 301
G.H.I.I. v. Mts, Inc., 147 Cal.App.3d 256, 195 Cal.Rptr.
Garcia, 183 Cal.App.3d 413, 228 Cal.Rptr. 108 . . . 460
211, 1983-2 Trade Cas. (CCH) P65688 (1983) .3303;
Garden Grove School Dist. v. Hendler, 63 Cal.2d 141, 45
3306; 3330; 3400, 3401; 3403, 3404; 3406, 3407
Cal.Rptr. 313, 403 P.2d 721 (1965) . . . . . . . . 100
G. Voskanian Construction, Inc. v. Alhambra Unified
Gardenhire v. Housing Authority, 85 Cal.App.4th 236,
School Dist., 204 Cal.App.4th 981, 139 Cal.Rptr.3d
101 Cal.Rptr.2d 893 (2000) . . . . . . . . . . . 4603
286 (2012) . . . . . . . . . . . . . . . . . 4501; 4521
Gardner v. City of San Jose, 248 Cal.App.2d 798, 57
Gabrielle A. v. County of Orange, 10 Cal.App.5th 1268,
Cal.Rptr. 176 (1967) . . . . . . . . . . . . . . . 1120
217 Cal.Rptr.3d 275 (2017). . . . .3063, 3064; 3066
Garlock Sealing Technologies, 148 Cal.App.4th 937, 56
Gagan v. Gouyd, 73 Cal.App.4th 835, 86 Cal.Rptr.2d 733
Cal.Rptr.3d 177 . . . . . . . . . . . . . . . . . . 3801
(1999) . . . . . . . . . . . . . . . . . . . . . . . 4200
Garmon v. County of L.A., 828 F.3d 837 (9th Cir.
Gagne v. Bertran, 43 Cal.2d 481, 275 P.2d 15
2016) . . . . . . . . . . . . . . . . . . . . . . . 3004
(1954). . . . . . . . . . . . . . . . . . . . . . . .602
Garmon v. Sebastian, 181 Cal.App.2d 254, 5 Cal.Rptr.
Gagnon v. Continental Casualty Co., 211 Cal.App.3d
101 (1960) . . . . . . . . . . . . . . . . . . . . . 721
1598, 260 Cal. Rptr. 305 (1989). .3940; 3942, 3943;
3945; 3947; 3949 Garrett v. Howmedica Osteonics Corp., 214 Cal.App.4th
173, 153 Cal.Rptr.3d 693 (2013). . . . . . . . .1201
Gainer; People v., 19 Cal. 3d 835, 139 Cal.Rptr. 861, 566
P.2d 997 (1977) . . . . . . . . . . . . . . . . . .5013 Garvey v. State Farm Fire & Casualty Co., 48 Cal.3d 395,
257 Cal.Rptr. 292, 770 P.2d 704 (1989) . . . . . 2306
Gaines, In re Estate of, 15 Cal.2d 255, 100 P.2d 1055
(1940). . . . . . . . . . . . . . . . . . . . . . . .213 Garza v. Asbestos Corp., Ltd., 161 Cal.App.4th 651, 74
Cal.Rptr.3d 359 (2008) . . . . . . . . . . . . . . 1205
Gallin v. Poulou, 140 Cal.App.2d 638, 295 P.2d 958
(1956). . . . . . . . . . . . . . . . . . . .2000, 2001 Gates v. Discovery Communications, Inc., 34 Cal.4th
679, 21 Cal.Rptr.3d 663, 101 P.3d 552 (2004) . 1802
Gallo, People ex rel. v. Acuna, 14 Cal.4th 1090, 60
Cal.Rptr.2d 277, 929 P.2d 596 (1997) . . . . . . 2020 Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554,
67 Cal.Rptr.3d 468, 169 P.3d 889 (2007) . . . . 2750
Gallup v. Sparks-Mundo Engineering Co., 43 Cal.2d 1,
271 P.2d 34, 19 Cal. Comp. Cases 234 (1954) . . 731 Gautier v. General Telephone Co., 234 Cal.App.2d 302,
44 Cal.Rptr. 404 (1965) . . . . . . . . . . . . . . 602
Galvan v. Dameron Hospital Assn., 37 Cal.App.5th 549,
250 Cal.Rptr.3d 16 (2019) . . . . . . . . . . . . 2500 Gavaldon v. DaimlerChrysler Corp., 32 Cal.4th 1246, 13
Cal.Rptr.3d 793, 90 P.3d 752 (2004). . . . . . .3205
Galvez v. Frields, 88 Cal.App.4th 1410, 107 Cal.Rptr.2d
50 (2001) . . . . . . . . . . . . . . . . . . . . . . 501 Geernaert v. Mitchell, 31 Cal.App.4th 601, 37
Cal.Rptr.2d 483 (1995) . . . . . . . . . . . . . . 1906
Galvis v. Petito, 13 Cal.App.4th 551, 16 Cal.Rptr.2d 560,
58 Cal. Comp. Cases 75 (1993) . . . . . . . . . . 720
TC-24
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Gehr v. Baker Hughes Oil Field Operations, Inc., 165 Girard v. Ball, 125 Cal.App.3d 772, 178 Cal.Rptr. 406
Cal.App.4th 660, 81 Cal.Rptr.3d 219 (2008). .3903F (1981) . . . . . . . . . . . . . . . . . . . . . . . 4521
Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 43 Gist v. French, 136 Cal.App.2d 247, 288 P.2d 1003
Cal.Rptr.3d 874, 71 Cal. Comp. Cases 726 (1955) . . . . . . . . . . . . . . . . . . . . 100; 5000
(2006) . . . . . . . . . . . . . . . . 2540, 2541; 2546 Glage v. Hawes Firearms Co., 226 Cal.App.3d 314, 276
Genisman v. Carley, 29 Cal.App.5th 45, 239 Cal.Rptr.3d Cal.Rptr. 430 (1990) . . . . . . . . . . . . . . . . 200
780, 239 Cal. Rptr. 3d 780 (2018) . . . . . . . . 610 Glaser v. Meyers, 137 Cal.App.3d 770, 187 Cal.Rptr. 242
George v. California Unemployment Ins. Appeals Bd., (1982) . . . . . . . . . . . . . . . . . . . . . . . 4321
179 Cal.App.4th 1475, 102 Cal.Rptr.3d 431 Glass v. Gulf Oil Corp., 12 Cal.App.3d 412, 96 Cal.Rptr.
(2009) . . . . . . . . . . . . . . . . . . . . . . . 2505 902 (1970). . . . . . . . . . . . . . . . . . . . .1730
George v. Long Beach, 973 F.2d 706 (9th Cir. Gleason v. Klamer, 103 Cal.App.3d 782, 163 Cal.Rptr.
1992) . . . . . . . . . . . . . . . . 3001; 3003, 3004 483 (1980) . . . . . . . . . . . . . . . . . . . . . 373
George v. Morris, 724 F.3d 1191 (9th Cir. 2013). .3020 Glendale Federal Savings & Loan Assn. v. Marina View
Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 Heights Development Co., Inc., 66 Cal.App.3d 101,
L.Ed.2d 208 (2006). . . . . . . . . . . . . . . .3025 135 Cal.Rptr. 802 (1977) . . .354; 1920; 1922–1924;
Gertz v. Robert Welch, Inc, 418 U.S. 323, 94 S.Ct. 2997, 4530, 4531
41 L.Ed.2d 789 (1974). . . .1700; 1702, 1703; 1705 Glenn v. Wash. County, 673 F.3d 864 (9th Cir.
Getchell v. Rogers Jewelry, 203 Cal.App.4th 381, 136 2011) . . . . . . . . . . . . . . . . 440; 1305A; 3020
Cal.Rptr.3d 641 (2012) . . . . . . . . . . 1003; 1011 Glenn, 661 F.3d 460 . . . . . . . . . . . . . . . . . 3020
GetFugu, Inc. v. Patton Boggs LLP, 220 Cal.App.4th 141, Glenn, County of v. Foley, 212 Cal.App.4th 393, 151
162 Cal.Rptr.3d 831 (2013) . . . . . . . . 1707; 1720 Cal.Rptr.3d 8 (2012) . . . . . . . . . . . . . . . 3517
Getz v. Boeing Co., 654 F.3d 852 (9th Cir. 2011) . 1246 Glens Falls Indemnity Co. v. Perscallo, 96 Cal.App.2d
GGIS Ins. Services, Inc. v. Superior Court, 168 799, 216 P.2d 567 (1950) . . . . . . . . . . . . . 300
Cal.App.4th 1493, 86 Cal.Rptr.3d 515 (2008). .2336 Glue-Fold, Inc. v. Slautterback Corp., 82 Cal.App.4th
Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 55 1018, 98 Cal.Rptr.2d 661, 55 U.S.P.Q.2d 1935
Cal.Rptr. 94 (1966) . . . . . . . . . 1230–1232; 1243 (2000) . . . . . . . . . . . . 454, 455; 4421; VF-410
Ghezavat v. Harris, 40 Cal.App.5th 555, 252 Cal.Rptr.3d Goddard v. Department of Fish & Wildlife, 243
887 (2019) . . . . . . . . . . . . . . . . . . . . . 724 Cal.App.4th 350, 196 Cal.Rptr.3d 625 (2015) . 1100,
Ghirardo v. Antonioli, 14 Cal.4th 39, 57 Cal.Rptr.2d 687, 1101; 1110
924 P.2d 996 (1996) . . . . . . . . . . . . . . . . 375 Gogo v. Los Angeles County Flood Control Dist., 45
GHK Associates v. Mayer Group, 224 Cal.App.3d 856, Cal.App.2d 334, 114 P.2d 65 (1941). . . . . . .4501
274 Cal.Rptr. 168 (1990). . . . . . . . . . .352, 353 Gold Mining & Water Co. v. Swinerton, 23 Cal.2d 19,
Gibbs v. American Airlines, Inc., 74 Cal.App.4th 1, 87 142 P.2d 22 (1943). . . . . . . . . . . . . . . . .324
Cal.Rptr.2d 554, 64 Cal. Comp. Cases 1001 Goldberg v. List, 11 Cal.2d 389, 79 P.2d 1087, 116 A.L.R.
(1999) . . . . . . . . . . . . . . . . . . . . . . . 2800 900 (1938). . . . . . . . . . . . . . . . . . . . .2102
Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. Golden Eagle Insurance Co. v. Foremost Insurance Co.,
2002) . . . . . . . . . . . . . . . . . . . . . . . 3002 20 Cal.App.4th 1372, 25 Cal.Rptr.2d 242 (1993).310
Gicking v. Kimberlin, 170 Cal.App.3d 73, 215 Cal.Rptr. Golden State Linen Service, Inc. v. Vidalin, 69
834 (1985) . . . . . . . . . . . . . . . . . . 417; 518 Cal.App.3d 1, 137 Cal.Rptr. 807, 1977-1 Trade Cas.
Gilbert v. City of Los Angeles, 249 Cal.App.2d 1006, 58 (CCH) P61439 (1977) . . . . . . . . . . . . . . 4407
Cal.Rptr. 56 (1967). . . . . . . . . . . . . . . . .213 Goldstein v. Enoch, 248 Cal.App.2d 891, 57 Cal.Rptr. 19
Gilbert Financial Corp. v. Steelform Contracting Co., 82 (1967). . . . . . . . . . . . . . . . . . . . . . . .332
Cal.App.3d 65, 145 Cal.Rptr. 448 (1978) . . . . 4510 Goldstein; People v., 139 Cal.App.2d 146, 293 P.2d 495
Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630 (1956). . . . . . . . . . . . . . . . . . . . . . . .202
(1952) . . . . . . . . . . . . . . . . . . . 1803; 1806 Goldwater v. Metro-North Commuter Railroad, 101 F.3d
Gill v. Hearst Publishing Co. Inc., 40 Cal.2d 224, 253 296 (2d Cir. 1996) . . . . . . . . . . . . . . . . 2926
P.2d 441 (1953) . . . . . . . . . . . . . . . . . .1806 Gomez v. Acquistapace, 50 Cal.App.4th 740, 57
Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992).3004 Cal.Rptr.2d 821, 61 Cal. Comp. Cases 1259
(1996) . . . . . . . . . . . . . . . . . . . . . . . 1320
Gillotti v. Stewart, 11 Cal.App.5th 875, 217 Cal.Rptr.3d
860 (2017) . . . . . . . . . . . . . . . . . 4570, 4571 Gomez v. Superior Court, 35 Cal.4th 1125, 29 Cal. Rptr.
3d 352, 113 P.3d 41 (2005) . . . . . . . . . . . . 901
Gionfriddo v. Major League Baseball, 94 Cal.App.4th
400, 114 Cal.Rptr.2d 307 (2001) . . . . 1803; 1804A, Gomez v. Volkswagen of America, Inc., 169 Cal.App.3d
1804B; 1806; 1820 921, 215 Cal.Rptr. 507 (1985). . . . . . .3202; 3205
TC-25
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Gonzales v. Carmenita Ford Truck Sales, Inc., 192 Granville v. Parsons, 259 Cal.App.2d 298, 66 Cal.Rptr.
Cal.App.3d 1143, 238 Cal.Rptr. 18 (1987) . . . 1205 149 (1968) . . . . . . . . . . . . . . . . . . 217; 222
Gonzales v. City of Atwater, 6 Cal.App.5th 929, 212 Grassilli v. Barr, 142 Cal.App.4th 1260, 48 Cal.Rptr.3d
Cal.Rptr.3d 137 (2016) . . . . . . . . . . . . . . 1123 715 (2006). . . . . . . . . . . . . . . . . . . . .3005
Gonzales v. Pers. Storage, 56 Cal.App.4th 464, 65 Gravelet-Blondin v. Shelton, 728 F.3d 1086 (9th Cir.
Cal.Rptr.2d 473 (1997) . . . . . . . . . . 2100; 2102 2013) . . . . . . . . . . . . . . . . . . . . 3001; 3021
Gonzalez v. Autoliv ASP, Inc., 154 Cal.App.4th 780, 64 Gray v. Bekins, 186 Cal. 389, 199 P. 767 (1921). .4502
Cal.Rptr.3d 908 (2007) . . . . . . . . . . 1201; 1204 Gray v. City and County of San Francisco, 202
Gonzalez v. Downtown LA Motors, LP, 215 Cal.App.4th Cal.App.2d 319, 20 Cal.Rptr. 894 (1962). . . . .903
36, 155 Cal.Rptr.3d 18 (2013) . . . . . . . . . . 2704 Gray v. Don Miller & Associates, Inc., 35 Cal.3d 498,
Gonzalez v. Fire Ins. Exchange, 234 Cal.App.4th 1220, 198 Cal.Rptr. 551, 674 P.2d 253, 44 A.L.R.4th 763
184 Cal.Rptr.3d 394 (2015) . . . . . . . . . . . 2336 (1984) . . . . . . . . . . . . . . . . . . . . . . . 1908
Gonzalez v. Seal Methods, Inc., 223 Cal.App.4th 405, Greater Westchester Homeowners Assn v. L.A., 26 Cal.
166 Cal.Rptr.3d 895, 79 Cal. Comp. Cases 134 3d 86, 160 Cal. Rptr. 733, 603 P.2d 1329
(2014) . . . . . . . . . . . . . . . . . . . . . . . 2804 (1979) . . . . . . . . . . . . . . . . . . . . . . . 3935
Gonzalez, 154 Cal.App.4th 780, 64 Cal.Rptr.3d Grebing v. 24 Hour Fitness USA, Inc., 234 Cal.App.4th
908. . . . . . . . . . . . . . . . . . . . . . . . .1204 631, 184 Cal.Rptr.3d 155 (2015). . . . . . .425; 451
Gonzalez, In re Marriage of, 57 Cal.App.3d 736, 129 Greco v. Oregon Mutual Fire Insurance Co., 191
Cal.Rptr. 566 (1976) . . . . . . . . . . . . . . . . 332 Cal.App.2d 674, 12 Cal.Rptr. 802 (1961). . . . .326
Goodwin v. Reilley, 176 Cal.App.3d 86, 221 Cal.Rptr. Green v. City & County of San Francisco, 751 F.3d 1039
374 (1985) . . . . . . . . . . . . . . . . . . . . . 460 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . 3021
Goonewardene v. ADP, LLC, 6 Cal.5th 817, 243 Green v. Par Pools, Inc., 111 Cal.App.4th 620, 3
Cal.Rptr.3d 299, 434 P.3d 124, 243 Cal. Rptr. 3d 299 Cal.Rptr.3d 844 (2003) . . . . . . . . . . . . . . 2740
(2019). . . . . . . . . . . . . . . . . . . . . . . .301 Green v. Ralee Engineering Co., 19 Cal.4th 66, 78
Gordon v. Cty. of Orange, 888 F.3d 1118 (9th Cir. Cal.Rptr.2d 16, 960 P.2d 1046 (1998) . . 2430–2432;
2018) . . . . . . . . . . . . . . . . . . . . 3041; 3046 4603
GoTek Energy, Inc. v. SoCal IP Law Group, LLP, 3 Green v. Smith, 261 Cal.App.2d 392, 67 Cal.Rptr. 796
Cal.App.5th 1240, 208 Cal.Rptr.3d 428 (2016) . 610, (1968). . . . . . . . . . . . . . . . . . . .3930, 3931
611 Green v. State of California, 42 Cal.4th 254, 64
Gould v. Corinthian Colleges, Inc., 192 Cal.App.4th Cal.Rptr.3d 390, 165 P.3d 118 (2007) . . 2540, 2541;
1176, 120 Cal.Rptr.3d 943 (2011) . . . . . . . . .336 2546, 2547
Gould v. Madonna, 5 Cal.App.3d 404, 85 Cal.Rptr. 457 Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr.
(1970) . . . . . . . . . . . . . . . . . . . . . . . 2003 704, 517 P.2d 1168 (1974) . . . . . 4320; 4326; 4342
Graciano v. Mercury General Corp, 231 Cal.App.4th 414, Green, 111 Cal.App.4th 620, 3 Cal.Rptr.3d 844 . . 2740
179 Cal.Rptr.3d 717 (2014) . . . . . . . . 2331; 2334 Greene v. Bank of America, 216 Cal.App.4th 454, 156
Gradus v. Hanson Aviation, Inc., 158 Cal.App.3d 1038, Cal.Rptr.3d 901 (2013) . . . . . . . . . . 1500; 1504
205 Cal.Rptr. 211 (1984). . . . . . . . . . .901; 903 Greene v. Bank of America, 236 Cal.App.4th 922, 186
Grady v. Easley, 45 Cal.App.2d 632, 114 P.2d 635 Cal.Rptr.3d 887 (2015) . . . . . . . . . . . . . . 1500
(1941). . . . . . . . . . . . . . . . . . . . . . . .335 Greene, 216 Cal.App.4th 454, 156 Cal.Rptr.3d
Grafton v. Mollica, 231 Cal.App.2d 860, 42 Cal.Rptr. 306 901. . . . . . . . . . . . . . . . . . . . . . . . .1500
(1965). . . . . . . . . . . . . . . . . . . . . . . .724 Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27
Graham v. Bank of America, N.A., 172 Cal.Rptr.3d 218, Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049
226 Cal.App.4th 594 . . . . . . . . . . . . . . . 1904 (1963) . . . . . .1200; 1230–1232; 1243; 3210, 3211
Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Greenwich S.F., LLC v. Wong, 190 Cal.App.4th 739, 118
Ed. 2d 443 (1989). . . . . .440; 1305A; 3000; 3020 Cal. Rptr. 3d 531 (2010) . . . . . . . . . 356; 3903N
Graham, 226 Cal.App.4th 594, 172 Cal.Rptr.3d Greg Opinski Construction, Inc. v. City of Oakdale, 199
218. . . . . . . . . . . . . . . . . . . . . . . . .1904 Cal.App.4th 1107, 132 Cal.Rptr.3d 170 (2011) . 4532
Grandona v. Lovdal, 70 Cal. 161, 11 P. 623 Gregory v. Cott, 59 Cal. 4th 996, 176 Cal. Rptr. 3d 1, 331
(1886) . . . . . . . . . . . . . . . . . . . . . . . 2021 P.3d 179, 79 Cal. Comp. Cases 985 (2014). . . .473
Grant v. Petronella, 50 Cal.App.3d 281, 123 Cal.Rptr. 399 Gregory, Conservatorship of v. Beverly Enterprises, Inc.,
(1975). . . . . . . . . . . . . . . . . . . . . . . .730 80 Cal.App.4th 514, 95 Cal.Rptr.2d 336
Grant v. Ratliff, 164 Cal.App.4th 1304, 79 Cal.Rptr.3d (2000). . . . . . . . . . . . . . . . . . . .3103; 3113
902 (2008). . . . . . . . . . . . . . . . . . . . .4901 Greisen v. Hanken, 925 F.3d 1097 (9th Cir. 2019) . 3053
TC-26
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                store.lexisnexis.com, for public and internal court use
AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Grenier v. Taylor, 234 Cal.App.4th 471, 183 Cal. Rptr. 3d Gutierrez v. Carmax Auto Superstores California, 19
867 (2015). . . . . . . . . . . . . . . . . . . . .1700 Cal.App.5th 1234, 228 Cal. Rptr. 3d 699
Grenning v. Miller-Stout, 739 F.3d 1235 (9th Cir. (2018) . . . . . . . . . . . . . . . . . . . 3210; 4700
2014) . . . . . . . . . . . . . . . . . . . . 3040; 3043 Gutierrez v. Carmax Auto Superstores California, 19 Cal.
Greyhound Lines, Inc. v. Department of the California App. 5th 1234, 248 Cal. Rptr. 3d 61 . . . 3210; 4700
Highway Patrol, 213 Cal.App.4th 1129, 152 Gutierrez v. Cassiar Mining Corp., 64 Cal.App.4th 148,
Cal.Rptr.3d 492 (2013) . . . . . . . . . . 450A–450C 75 Cal.Rptr.2d 132 (1998) . . . . . . . . . . . 3903B
Greyhound Lines, Inc. v. Superior Court, 3 Cal.App.3d Gutierrez v. Girardi, 194 Cal.App.4th 925, 125
356, 83 Cal.Rptr. 343 (1970) . . . . . . . . . . . 903 Cal.Rptr.3d 210 (2011) . . . . . . . . . . . . . . 4106
Grier v. Ferrant, 62 Cal.App.2d 306, 144 P.2d 631 Gutierrez v. Mofid, 39 Cal.3d 892, 218 Cal.Rptr. 313, 705
(1944). . . . . . . . . . . . . . . . . . . . . . . .907 P.2d 886 (1985) . . . . . . . . . . . . . . . . . . 600
Griesel v. Dart Industries, Inc., 23 Cal.3d 578, 153 Gutierrez; People v., 163 Cal.App.3d 332, 209 Cal.Rptr.
Cal.Rptr. 213, 591 P.2d 503 (1979) . . . . . . . 5014 376 (1984). . . . . . . . . . . . . . . . . . . . .3024
Griffin v. The Haunted Hotel, Inc., 242 Cal.App.4th 490, Guyton v. City of Los Angeles, 174 Cal.App.2d 354, 344
194 Cal.Rptr.3d 830 (2015) . . . . . . . . . 470–472 P.2d 910 (1959) . . . . . . . . . . . . . . . . . . 700
Griffin Dewatering Corp. v. Northern Ins. Co. of New Guz v. Bechtel National, Inc., 24 Cal.4th 317, 100
York, 176 Cal.App.4th 172, 97 Cal.Rptr.3d 568 Cal.Rptr.2d 352, 8 P.3d 1089 (2000). . . .325; 2400,
(2009) . . . . . . . . . . . . . . . . . . . . . . . 2336 2401; 2403–2405; 2423; 2500; 2502; 2507; 2513;
Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 2570
L.Ed.2d 158 (1971). . . . . . . . . . . . . . . .2503 Guzman v. Visalia Community Bank, 71 Cal.App.4th
Grimes v. Carter, 241 Cal.App.2d 694, 50 Cal.Rptr. 808, 1370, 84 Cal.Rptr.2d 581 (1999) . . . . . . . . . 309
19 A.L.R.3d 1310 (1966). . . . . . . . . . . . .1604 Gyerman v. United States Lines Co., 7 Cal.3d 488, 102
Grindle v. Lorbeer, 196 Cal.App.3d 1461, 242 Cal.Rptr. Cal.Rptr. 795, 498 P.2d 1043, 37 Cal. Comp. Cases
562 (1987). . . . . . . . . . . . . . . . . . . . .1501 972 (1972) . . . . . . . . . . . . . . . . . . . . . 415
Grinnell v. Charles Pfizer & Co., 274 Cal.App.2d 424, 79
Cal.Rptr. 369 (1969) . . . . . . . . . . . .1230, 1231 H
Grotheer v. Escape Adventures, Inc., 14 Cal.App.5th
Hager v. County of Los Angeles, 176 Cal.Rptr.3d 268,
1283, 222 Cal.Rptr.3d 633 (2017) . . . . . . 472; 901
228 Cal.App.4th 1538 . . . . . . . . . . . . . . 4603
Grudt v. City of Los Angeles, 2 Cal.3d 575, 86 Cal.Rptr.
Haggis v. City of Los Angeles, 22 Cal.4th 490, 93
465, 468 P.2d 825 (1970) . . . . . . . . . . 440, 441
Cal.Rptr.2d 327, 993 P.2d 983 (2000). . . . . . .423
Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 108 Cal.
Haines v. Parra, 193 Cal.App.3d 1553, 239 Cal.Rptr. 178
Rptr. 480, 510 P.2d 1032 (1973) . . . . . . . . . 2331
(1987) . . . . . . . . . . . . . . . . . . . . . . . 2102
Gryczman v. 4550 Pico Partners, Ltd., 107 Cal.App.4th 1,
Haley v. Casa Del Rey Homeowners Assn., 153
131 Cal.Rptr.2d 680 (2003) . . . . . . . . . . . . 338
Cal.App.4th 863, 63 Cal.Rptr.3d 514 (2007) . . . 303
Guardianship of (see name of party)
Haligowski v. Superior Court, 200 Cal.App.4th 983, 134
Gudger v. Manton, 21 Cal.2d 537, 134 P.2d 217 Cal. Rptr. 3d 214, 192 L.R.R.M. (BNA) 2091
(1943) . . . . . . . . . . . . . . . . . . . . . . . 1730 (2011) . . . . . . . . . . . . . . . . . . . . . . . 2441
Guernsey v. City of Salinas, 30 Cal.App.5th 269, 241 Hall v. County of Los Angeles, 148 Cal.App.4th 318, 55
Cal.Rptr.3d 335 (2018) . . . . . . . . . . . . . . 1125 Cal.Rptr.3d 732 (2007) . . . . . . . . . . . . . . 2740
Guevara v. Ventura County Community College Dist., Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92
169 Cal.App.4th 167, 87 Cal.Rptr.3d 50 (2008) . 457 (D.Minn. 1971) . . . . . . . . . . . . . . . . . . 2941
Guido v. Koopman, 1 Cal.App.4th 837, 2 Cal.Rptr.2d 437 Hall v. Rockcliff Realtors, 215 Cal.App.4th 1134, 155
(1991) . . . . . . . . . . . . . . . . . . . . . . . 1908 Cal.Rptr.3d 739 (2013) . . . . . . . . . . . . . . 1003
Guild Wineries & Distilleries v. J. Sosnick and Son, 102 Halliburton Energy Services, Inc. v. Department of
Cal.App.3d 627, 162 Cal.Rptr. 87, 1980-1 Trade Cas. Transportation, 220 Cal.App.4th 87, 162 Cal.Rptr.3d
(CCH) P63258 (1980) . . . . . . . . . . . 3401, 3402 752, 78 Cal. Comp. Cases 1049 (2013) . 3720; 3723;
Gunnell v. Metrocolor Laboratories, Inc., 92 Cal.App.4th 3725
710, 112 Cal.Rptr.2d 195, 66 Cal. Comp. Cases 1308 Hallstrom v. Garden City, 991 F.2d 1473 (9th Cir.
(2001). . . . . . . . . . . . . . . . . . . .2800, 2801 1993) . . . . . . . . . . . . . . . . . . . . . . . 3024
Guntert v. City of Stockton, 43 Cal.App.3d 203, 117 Halvorsen v. Aramark Uniform Services, Inc., 65
Cal.Rptr. 601 (1974) . . . . . . . . . . . . . 321, 322 Cal.App.4th 1383, 77 Cal.Rptr.2d 383 (1998) . 2202;
Guthrie v. Times-Mirror Co., 51 Cal.App.3d 879, 124 2204
Cal.Rptr 577 (1975) . . . . . . . . . . . . . . . . 331
TC-27
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Hambrecht & Quist Venture Partners v. Am. Medical Harris v. Bissell, 54 Cal.App. 307, 202 P. 453
Internat., 38 Cal.App.4th 1532, 46 Cal.Rptr.2d 33 (1921) . . . . . . . . . . . . . . . . . . . . . . . 4340
(1995). . . . . . . . . . . . . . . . . . . . . . . .338 Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142,
Hamilton v. Dick, 254 Cal.App.2d 123, 61 Cal.Rptr. 894 278 Cal.Rptr. 614, 805 P.2d 873 (1991) . 3060, 3061
(1967). . . . . . . . . . . . . . . . . . . . . . . .723 Harris v. Capitol Records Distributing Corp., 64 Cal.2d
Hamilton v. Martinelli & Associates, 110 Cal.App.4th 454, 50 Cal.Rptr. 539, 413 P.2d 139, 1966 Trade Cas.
1012, 2 Cal.Rptr.3d 168, 68 Cal. Comp. Cases 1077 (CCH) P71749 (1966) . . . . . . . . . . . 3300; 3332
(2003). . . . . . . . . . . . . . . . . . . . . . . .470 Harris v. City of Santa Monica, 56 Cal.4th 203, 152
Hamilton v. Maryland Cas. Co., 27 Cal.4th 718, 117 Cal. Cal.Rptr.3d 392, 294 P.3d 49 (2013) . . .2430; 2441;
Rptr. 2d 318, 41 P.3d 128 (2002) . . . . . 2334; 2360 2500; 2505; 2507; 2511, 2512; 2540; 2547; 2560;
Hampton v. County of San Diego, 62 Cal.4th 340, 195 2570; 2620; 2743; 3060, 3061; 3063, 3064; 3071;
Cal.Rptr.3d 773, 362 P.3d 417 (2015) . . . . . . 1123 4600; 4604, 4605
Hand Electronics, Inc. v. Snowline Joint Unified School Harris v. Forklift Sys., 510 U.S. 17, 114 S.Ct. 367, 126
Dist., 21 Cal.App.4th 862, 26 Cal.Rptr.2d 446, 26 Cal. L.Ed.2d 295 (1993). .2521A–2521C; 2522A–2522C;
Rptr. 2d 446 (1994). . . . . . . . . . .3903J, 3903K 2524
Hanif v. Housing Authority of Yolo County, 200 Harris v. Oaks Shopping Ctr., 70 Cal.App.4th 206, 82
Cal.App.3d 635, 246 Cal. Rptr. 192 (1988) . . 3903A Cal.Rptr.2d 523 (1999). . . . . . . . . . . . . . .453
Hankins v. El Torito Restaurants, Inc., 63 Cal.App.4th Harris v. Rudin, Richman & Appel, 74 Cal.App.4th 299,
510, 74 Cal.Rptr.2d 684 (1998) . . . . . . . . . 3060 87 Cal.Rptr.2d 822 (1999) . . . . . . . . . . . . .306
Hanks v. Carter & Higgins of Cal., Inc., 250 Cal.App.2d Harris v. Superior Court, 53 Cal.4th 170, 135 Cal.Rptr.3d
156, 58 Cal.Rptr. 190 (1967). . . . . . . . . . .3705 247, 266 P.3d 953 (2011). . . . . . . . . . . . .2721
Hansen v. Newegg.com Americas, Inc., 25 Cal.App.5th Harris, 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d
714, 236 Cal.Rptr.3d 61 (2018) . . . . . . . . . 4700 873. . . . . . . . . . . . . . . . . . . . . . . . .3060
Hansen v. Sandridge Partners, L.P, 22 Cal.App.5th 1020, Harris, 53 Cal.4th 170, 135 Cal.Rptr.3d 247, 266 P.3d
232 Cal.Rptr.3d 247 (2018) . . . . . . . . . . . 4900 953. . . . . . . . . . . . . . . . . . . . . . . . .2721
Hansen v. Warco Steel Corp., 237 Cal.App.2d 870, 47 Harris, 56 Cal.4th 203, 152 Cal.Rptr.3d 392, 294 P.3d
Cal.Rptr. 428 (1965) . . . . . . . . . . . . . . . . 203 49 . . . . 2500; 2507; 2511, 2512; 2560; 2570; 4604
Hansen v. Warco Steel Corp., 237 Cal.App.2d 870, 47 Harris, 64 Cal.2d 454, 50 Cal.Rptr. 539, 413 P.2d
Cal.Rptr. 428 (1965) . . . . . . . . . . . . . . . . 203 139. . . . . . . . . . . . . . . . . . . . . . . . .3300
Hansen, 22 Cal.App.5th 1020, 232 Cal.Rptr.3d Harris. (Alamo v. Practice Management Information
247. . . . . . . . . . . . . . . . . . . . . . . . .4900 Corp., 219 Cal.App.4th 466, 161 Cal.Rptr.3d 758
Hansford v. Lassar, 53 Cal.App.3d 364, 125 Cal.Rptr. 804 (2013) . . . . . . . . . . . . . . . . . . . . . . . 2512
(1975) . . . . . . . . . . . . . . . . . . . . . . . 4200 Harris, People ex rel. v. Aguayo, 11 Cal.App.5th 1150,
Hanson v. Lucky Stores, 74 Cal.App.4th 215, 87 218 Cal. Rptr. 3d 221 (2017). . . . . . . . . . .3430
Cal.Rptr.2d 487, 64 Cal. Comp. Cases 1026 Harrison v. City of Rancho Mirage, 243 Cal.App.4th 162,
(1999) . . . . . . . . . . . . . . . . . . . . . . . 2541 196 Cal.Rptr.3d 267 (2015) . . . . . . . . . . . 3060
Harb v. City of Bakersfield, 233 Cal.App.4th 606, 183 Harry v. Ring the Alarm, LLC, 34 Cal.App.5th 749, 246
Cal.Rptr.3d 59 (2015) . . . . . . . . . . . . 405; 517 Cal.Rptr.3d 471 (2019). . . . . . . . . . . . . . .473
Harden v. Bay Area Rapid Transit Dist., 215 Cal.App.3d Hart v. Wielt, 4 Cal.App.3d 224, 84 Cal.Rptr. 220
7, 263 Cal.Rptr. 549 (1989) . . . . . . . . . . . 1406 (1970). . . . . . . . . . . . . . . . . . . . . . . .117
Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 260 Hartford Casualty Ins. Co. v. Swift Distribution, Inc., 59
P.2d 63 (1953) . . . . . . . . . . . . . . . . 706, 707 Cal.4th 277, 172 Cal.Rptr.3d 653, 326 P.3d 253
Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir. (2014) . . . . . . . . . . . . . . . . . . . 1731; 2336
1982) . . . . . . . . . . . . . . . . . . . . . . . 2501 Hartman v. Shell Oil Co., 68 Cal.App.3d 240, 137
Hardison v. Bushnell, 18 Cal.App.4th 22, 22 Cal.Rptr.2d Cal.Rptr. 244 (1977) . . . . . . . . . . . . . . . 1921
106 (1993) . . . . . . . . . . . . . . . . . . 432; 712 Hass v. RhodyCo Productions, 26 Cal.App.5th 11, 236
Hardwick v. Cnty. of Orange, 844 F.3d 1112 (9th Cir. Cal.Rptr.3d 682 (2018) . . . . . . . . . 425; 451; 472
2017) . . . . . . . . . . . . . . . . . . . . . . . 3052 Hasso v. Hapke, 227 Cal.App.4th 107, 173 Cal.Rptr.3d
Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494, 66 A.L.R.2d 356 (2014). . . . . . . . . . . . . .1906; 4100; 4200
739 (1957). . . . . . . . . . . . . . . . . . . . .1502 Hassoldt v. Patrick Media Group, Inc., 84 Cal.App.4th
Hargrave v. Winquist, 134 Cal.App.3d 916, 185 Cal.Rptr. 153, 100 Cal.Rptr.2d 662 (2000) . . . . . 2002, 2003
30 (1982) . . . . . . . . . . . . . . . . . . . . . . 708 Hasson v. Ford Motor Co., 19 Cal.3d 530, 138 Cal.Rptr.
Harris v. Belton, 258 Cal.App.2d 595, 65 Cal.Rptr. 808 705, 564 P.2d 857, 99 A.L.R.3d 158 (1977).202; 405
(1968) . . . . . . . . . . . . . . . . . . . . . . . 1206
TC-28
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                store.lexisnexis.com, for public and internal court use
AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Hastie v. Handeland, 274 Cal.App.2d 599, 79 Cal.Rptr. Henry v. Superior Court, 160 Cal.App.4th 440, 72
268 (1969). . . . . . . . . . . . . . . . . . . . .3929 Cal.Rptr.3d 808 (2008) . . . . . . . . . . . . . . 3929
Hatfield v. Levy Bros., 18 Cal.2d 798, 117 P.2d 841 Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012).3000
(1941) . . . . . . . . . . . . . . . . . . . 1003; 1012 Henry; U.S. v., 615 F.2d 1223 (9th Cir. 1980) . . . 3025
Hathaway v. Siskiyou Union High School Dist., 66 Henshaw v. Belyea, 220 C. 458, 31 P.2d 348
Cal.App.2d 103, 151 P.2d 861 (1944). . . . . . .722 (1934). . . . . . . . . . . . . . . . . . . . . . . .453
Hauter v. Zogarts, 14 Cal.3d 104, 120 Cal.Rptr. 681, 534 Hensler v. City of Los Angeles, 124 Cal.App.2d 71, 268
P.2d 377, 74 A.L.R.3d 1282 (1975). . . .1230–1232; P.2d 12 (1954) . . . . . . . . . . . . . . . . . . 4502
1240–1242; 1900; 1904 Hensley v. McSweeney, 90 Cal.App.4th 1081, 109
Hawaii Federal Asbestos Cases, In re, 960 F.2d 806 (9th Cal.Rptr.2d 489 (2001) . . . . . . . . . . . . . . 1924
Cir. 1992). . . . . . . . . . . . . . . . . .1246, 1247 Hensley v. San Diego Gas & Electric Co., 7 Cal.App.5th
Haycock v. Hughes Aircraft Co., 22 Cal.App.4th 1473, 28 1337, 213 Cal. Rptr. 3d 803 (2017). . . .2031; 2100
Cal.Rptr.2d 248 (1994) . . . . . . . . . . 2400; 3301 Hensley, 90 Cal.App.4th 1081, 109 Cal.Rptr.2d
Hayes v. County of San Diego, 57 Cal.4th 622, 160 489. . . . . . . . . . . . . . . . . . . . . . . . .1924
Cal.Rptr.3d 684, 305 P.3d 252 (2013) . . . 440; 3020 Herbert v. Regents of University of California, 26
Hayes v. State of California, 11 Cal.3d 469, 113 Cal.Rptr. Cal.App.4th 782, 31 Cal.Rptr.2d 709 (1994) . . 1601;
599, 521 P.2d 855 (1974). . . . . . . . . . . . .1100 1622, 1623
Hayes, 57 Cal.4th 622, 160 Cal.Rptr.3d 684, 305 P.3d Herman & MacLean v. Huddleston, 459 U.S. 375, 103
252 . . . . . . . . . . . . . . . . . . . . . . . . . 440 S.Ct. 683, 74 L.Ed.2d 548. . . . . . . . . . . . .201
Hayter Trucking Inc. v. Shell Western E & P, Inc., 18 Hernandez v. Amcord, Inc., 215 Cal.App.4th 659, 156
Cal.App.4th 1, 22 Cal.Rptr.2d 229 (1993) . . . . 315 Cal.Rptr.3d 90, 78 Cal. Comp. Cases 556
Hazle v. Crofoot, 727 F.3d 983 (9th Cir. 2013). . .3000 (2013) . . . . . . . . . . . . . . . . . . . . 435; 3430
Healy v. Brewster, 251 Cal.App.2d 541, 59 Cal.Rptr. 752 Hernandez v. Badger Construction Equipment Co., 28
(1967) . . . . . . . . . . . . . . . . . . . 4500; 4522 Cal.App.4th 1791, 34 Cal.Rptr.2d 732, 59 Cal. Comp.
Heath v. Fruzia, 50 Cal.App.2d 598, 123 P.2d 560 Cases 705 (1994) . . . . . . . . . . . . . 1223; 3920
(1942). . . . . . . . . . . . . . . . . . . . . . . .462 Hernandez v. City of Pomona, 46 Cal.4th 501, 94 Cal.
Heather W., Conservatorship of, 245 Cal.App.4th 378, Rptr. 3d 1, 207 P.3d 506 (2009) . . . . . 440; 1305A
199 Cal.Rptr.3d 689 (2016) . . . . . . . . . . . 4000 Hernandez v. Hillsides, Inc., 47 Cal.4th 272, 97
Hebberd-Kulow Enterprises, Inc. v. Kelomar, Inc., 218 Cal.Rptr.3d 274, 211 P.3d 1063 (2009) . . 1800; 1807
Cal.App.4th 272, 159 Cal.Rptr.3d 869 (2013) . . 302 Hernandez v. Mendoza, 199 Cal.App.3d 721, 245
Hebrew Academy of San Francisco v. Goldman, 42 Cal.Rptr. 36 (1988) . . . . . . . . . . . . . . . . 2703
Cal.4th 883, 70 Cal.Rptr.3d 178, 173 P.3d 1004 Hernandez v. Modesto Portuguese Pentecost Assn., 40
(2007) . . . . . . . . . . . . . . . . . . . . . . . 1722 Cal.App.4th 1274, 48 Cal.Rptr.2d 229 (1995) . . 422
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 Hernandez v. Pacific Bell Telephone Co., 29 Cal.App.5th
L.Ed.2d 383 (1994). . . . . . . . . . . . . . . .3020 131, 239 Cal. Rptr. 3d 852 (2018) . . . . . . . . 2700
Helfend v. Southern California Rapid Transit Dist., 2 Hernandez v. Rancho Santiago Cmty. College Dist., 22
Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d 61 (1970) . 105; Cal.App.5th 1187, 232 Cal. Rptr. 3d 349, 83 Cal.
3903A; 5001 Comp. Cases 869 (2018) . . . . . . . . . . . . . 2541
Helix Land Co., Inc. v. City of San Diego, 82 Cal.App.3d Hernandez, 47 Cal.4th 272, 97 Cal.Rptr.3d 274, 211 P.3d
932, 147 Cal.Rptr. 683 (1978) . . . . . . . . . . 2020 1063 . . . . . . . . . . . . . . . . . . . . . . . . 1800
Heller v. Norcal Mutual Ins. Co., 8 Cal.4th 30, 32 Hernandez, 199 Cal.App.3d 721, 245 Cal.Rptr. 36.2703
Cal.Rptr.2d 200, 876 P.2d 999 (1994). . . . . . .100 Hernandezcueva v. E.F. Brady Co., Inc., 243 Cal.App.4th
Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 249, 196 Cal.Rptr.3d 594, 196 Cal. Rptr. 3d 594, 234
L.Ed.2d 22 (1993) . . . . . . . . . . . . . 3040; 3043 Cal.App.4th 249 (2015). . . . . . . . . . . . . .1200
Hellman v. La Cumbre Golf & Country Club, 6 Herrera v. Southern Pacific Co, 155 Cal.App.2d 781, 318
Cal.App.4th 1224, 8 Cal.Rptr.2d 293 (1992) . . 4308 P.2d 784 (1957). . . . . . . . . . . . . . . .803, 804
Hendy v. Losse, 54 Cal.3d 723, 1 Cal. Rptr. 2d 543, 819 Herrick v. Quality Hotels, Inns & Resorts, Inc., 19
P.2d 1, 56 Cal. Comp. Cases 687 (1991) . . . . 2810 Cal.App.4th 1608, 24 Cal.Rptr.2d 203, 58 Cal. Comp.
Heninger v. Dunn, 101 Cal.App.3d 858, 162 Cal.Rptr. Cases 764 (1993) . . . . . . . . . . . . . . . . . 2801
104 (1980). . . . . . . . . . . . . . . . . . . . .2002 Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53
Henrietta v. Evans, 10 Cal.2d 526, 75 P.2d 1051 Cal.Rptr.2d 713, 61 Cal. Comp. Cases 584
(1938). . . . . . . . . . . . . . . . . . . . . . . .721 (1996) . . . . . . . . . . . . . . . . . . . . .470; 473
TC-29
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Hersant v. Department of Social Services, 57 Cal.App.4th Hilyar v. Union Ice Co., 45 Cal.2d 30, 286 P.2d 21
997, 67 Cal.Rptr.2d 483 (1997) . . . . . . . . . 2570 (1955). . . . . . . . . . . . . . . . . . . . . . . .412
Hert v. Firestone Tire & Rubber Co., 4 Cal.App.2d 598, Hinman v. Wagnon, 172 Cal.App.2d 24, 341 P.2d 749
41 P.2d 369 (1935). . . . . . . . . . . . . . . . .706 (1959). . . . . . . . . . . . .4304, 4305; 4308, 4309
Herzog v. Grosso, 41 Cal.2d 219, 259 P.2d 429 Hinman v. Westinghouse Electric Co., 2 Cal.3d 956, 88
(1953) . . . . . . . . . . . . . . . . . . . . . . 3903F Cal.Rptr. 188, 471 P.2d 988, 35 Cal. Comp. Cases 756
Heskel v. City of San Diego, 227 Cal.App.4th 313, 173 (1970) . . . . . . . . . . . . . . . . . . . 3720; 3727
Cal.Rptr.3d 768 (2014) . . . . . . . . . . . . . . 1103 Hinman, 172 Cal.App.2d 24, 341 P.2d 749 . 4304, 4305
Hess v. Ford Motor Co., 27 Cal.4th 516, 117 Cal. Rptr. 2d Hinson v. Clairemont Community Hospital, 218
220, 41 P.3d 46 (2002). . . . . . . . . . . . . . .331 Cal.App.3d 1110, 267 Cal.Rptr. 503 (1990). . . .501
Hessians Motorcycle Club v. J.C. Flanagans, 86 Hirsch v. Bank of America, 107 Cal.App.4th 708, 132
Cal.App.4th 833, 103 Cal.Rptr.2d 552 (2001). .3060 Cal.Rptr.2d 220 (2003). . . . . . . . . . . . . . .375
Hetzel v. Hennessy Industries, Inc, 247 Cal.App.4th 521, Hi-Top Steel Corp. v. Lehrer, 24 Cal.App.4th 570, 29
202 Cal.Rptr.3d 310 (2016) . . . . . . . . . . . 1205 Cal.Rptr.2d 646 (1994) . . . . . . . . . . . . . . 3430
Heyen v. Safeway, Inc., 216 Cal.App.4th 795, 157 Hoard v. Hartman, 904 F.3d 780 (9th Cir. 2018) . . 3042
Cal.Rptr.3d 280 (2013) . . . . . . . . . . 2720, 2721 Hobbs v. Bateman Eichler, Hill Richards, Inc., 164
Hibbs v. Los Angeles County Flood Control Dist., 252 Cal.App.3d 174, 210 Cal.Rptr. 387 (1985) . . . 4120
Cal.App.2d 166, 60 Cal.Rptr. 364 (1967) . 1111, 1112 Hoffman v. Brandt, 65 Cal.2d 549, 55 Cal.Rptr. 417, 421
Hickenbottom v. Jeppesen, 144 Cal.App.2d 115, 300 P.2d P.2d 425, 55 Cal. Rptr. 417 (1966) . . . . . . . . 117
689 (1956) . . . . . . . . . . . . . . . . . . . . . 703 Hoffman v. 162 North Wolfe LLC, 228 Cal.App.4th 1178,
Hicks v. Reis, 21 Cal.2d 654, 134 P.2d 788 (1943) . 720 175 Cal.Rptr.3d 820 (2014) . . . . . . . . 1901; 1908
Hicks v. Richard, 39 Cal.App.5th 1167, 252 Cal.Rptr.3d Hofmann Co. v. E.I. Du Pont de Nemors & Co., 202
578 (2019). . . . . . . . . . . . . . . . . . . . .1723 Cal.App.3d 390, 248 Cal.Rptr. 384 (1988) . . . 1707;
Hicks v. Sullivan, 122 Cal.App. 635, 10 P.2d 516 1731
(1932). . . . . . . . . . . . . . . . . . . . . . . .463 Hogan v. Midland Nat’l Ins. Co., 3 Cal.3d 553, 91 Cal.
Hicks, 39 Cal.App.5th 1167, 252 Cal.Rptr.3d 578 . 1723 Rptr. 153, 476 P.2d 825 (1970). . . . . . . . . .2351
Higgins-Williams v. Sutter Medical Foundation, 237 Hogen v. Valley Hospital, 147 Cal.App.3d 119, 195
Cal.App.4th 78, 187 Cal.Rptr.3d 745 (2015) . . 2540 Cal.Rptr. 5 (1983). . . . . . . . . . . . . . . . .1502
Hignell v. Gebala, 90 Cal.App.2d 61, 202 P.2d 378 Hogue v. Southern Pacific Co., 1 Cal.3d 253, 81 Cal.Rptr.
(1949) . . . . . . . . . . . . . . . . . . . . . . . 4304 765, 460 P.2d 965 (1969) . . . . . . . . . . . . . 801
Hilb v. Robb, 33 Cal.App.4th 1812, 39 Cal.Rptr. 2d 887, Holdgrafer v. Unocal Corp., 160 Cal.App.4th 907, 73
1995-1 Trade Cas. (CCH) P70986 (1995) . . . . 4407 Cal.Rptr.3d 216 (2008). . . . . . . . . . . . . . .456
Hill v. Clark, 7 Cal.App. 609, 95 P. 382 (1908) . . 4532 Holguin v. Dish Network LLC, 229 Cal.App.4th 1310,
Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1, 26 178 Cal.Rptr.3d 100 (2014) . . . . . . . . . . . . 328
Cal.Rptr.2d 834, 865 P.2d 633 (1994) . . 1800–1803; Holland v. Kerr, 116 Cal.App.2d 31, 253 P.2d 88
1807 (1953). . . . . . . . . . . . . . . . . . . . . . . .203
Hill v. Peres, 136 Cal.App. 132, 28 P.2d 946 Holloway; People v., 33 Cal. 4th 96, 14 Cal.Rptr.3d 212,
(1934). . . . . . . . . . . . . . . . . . . . . . . .700 91 P.3d 164 (2004). . . . . . . . . . . . . . . . .216
Hill, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d Holmes v. City of Oakland, 260 Cal.App.2d 378, 67
633. . . . . . . . . . . . . . . . . . . . . . . . .1800 Cal.Rptr. 197 (1968) . . . . . . . . . . . . . . . 1101
Hill, 7 Cal.App. 609, 95 P. 382 . . . . . . . . . . . 4532 Holmes v. Petrovich Development Co., LLC, 191
Hill, Inc., 26 Cal.4th 798, 111 Cal.Rptr.2d 87, 29 P.3d 175 Cal.App.4th 1047, 119 Cal.Rptr.3d 878 (2011) . 2509
(2001) . . . . . . . . . . . . . . . . . . . . . . . 2508 Holmes v. Summer, 188 Cal.App.4th 1510, 116
Hilliard v. A. H. Robins Co., 148 Cal.App.3d 374, 196 Cal.Rptr.3d 419 (2010) . . . . . . . . . . 4107; 4109
Cal.Rptr. 117 (1983). . . . . . . . . . . .100; 3903D Holt v. Department of Food and Agriculture, 171
Hilliard v. Harbour, 12 Cal.App.5th 1006, 219 Cal.App.3d 427, 218 Cal.Rptr. 1 (1985) . . . . . 413
Cal.Rptr.3d 613 (2017) . . . . . . . . . . . . . . 3100 Holt v. Regents of the University of California, 73
Hillman v. Garcia-Ruby, 44 Cal.2d 625, 283 P.2d 1033 Cal.App.4th 871, 86 Cal.Rptr.2d 752 (1999) . 3904A
(1955) . . . . . . . . . . . . . . . . . . . . . 461, 462 Holtz v. United Plumbing and Heating Co., 49 Cal.2d
Hills v. Aronsohn, 152 Cal.App.3d 753, 199 Cal.Rptr. 816 501, 319 P.2d 617 (1957). . . . . . . . . . . . .3712
(1984). . . . . . . . . . . . . . . . . . . . . . . .556 Holtzendorff v. Housing Authority of the City of Los
Hilts v. County of Solano, 265 Cal.App.2d 161, 71 Angeles, 250 Cal.App.2d 596, 58 Cal.Rptr. 886
Cal.Rptr. 275 (1968) . . . . . . . . . . . . . . . 3700 (1967) . . . . . . . . . . . . . . . . . . . . . . . 2421
TC-30
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Honeycutt v. Meridian Sports Club, LLC, 231 Howard v. Schaniel, 113 Cal.App.3d 256, 169 Cal.Rptr.
Cal.App.4th 251, 179 Cal.Rptr.3d 473 (2014) . . 471 678 (1980). . . . . . . . . . . . . . . . . . . . .1730
Hongsathavij v. Queen of Angels/Hollywood Howard Contracting, Inc. v. G. A. MacDonald
Presbyterian Medical Center, 62 Cal.App.4th 1123, 73 Construction Co., 71 Cal.App.4th 38, 83 Cal.Rptr.2d
Cal.Rptr.2d 695 (1998). . . . . . . . . . . . . . .509 590 (1998). . . . . . . . . . . . . .4501, 4502; 4543
Hooker v. Department of Transportation, 27 Cal.4th 198, Howard J. White, Inc. v. Varian Associates, 178
115 Cal.Rptr.2d 853, 38 P.3d 1081, 67 Cal. Comp. Cal.App.2d 348, 2 Cal.Rptr. 871 (1960). . . . .4522
Cases 19, 115 Cal. Rptr. 2d 853 (2002) . . . . 1009B Howe v. Seven Forty Two Co., Inc, 189 Cal.App.4th
Hoopes v. Dolan, 168 Cal.App.4th 146, 85 Cal.Rptr.3d 1155, 117 Cal.Rptr.3d 126 (2010) . . . . . . 417; 518
337 (2008) . . . . . . . . . . . . . . . 456, 457; 2506 Howell v. Hamilton Meats & Provisions, Inc., 52 Cal.4th
Hope National Medical Center, City of v. Genentech, 541, 129 Cal.Rptr.3d 325, 257 P.3d 1130, 76 Cal.
Inc., 43 Cal.4th 375, 75 Cal.Rptr.3d 333, 181 P.3d 142, Comp. Cases 1147, 129 Cal. Rptr. 3d 325
90 U.S.P.Q.2d 1824 (2008) . . . . 303; 314; 317; 320 (2011) . . . . . . . . . . . . . . . . . . . . . . 3903A
Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. Huang v. The Bicycle Casino, Inc., 4 Cal.App.5th 329,
2009) . . . . . . . . . . . . . . . . . . . . 3026, 3027 208 Cal.Rptr.3d 591, 208 Cal. Rptr. 3d 591
Hopkins v. Kedzierski, 225 Cal.App.4th 736, 170 (2016) . . . . . . . . . . . . . . . . . . 901, 902; 906
Cal.Rptr.3d 551, 79 Cal. Comp. Cases 363 Hubbard v. Brown, 50 Cal.3d 189, 266 Cal.Rptr. 491, 785
(2014) . . . . . . . . . . . . . . . . . . . . . 456, 457 P.2d 1183 (1990) . . . . . . . . . . . . . . . . . 1010
Hopkins v. Tye, 174 Cal.App.2d 431, 344 P.2d 640 Hudgins v. Neiman Marcus Group, Inc., 34 Cal.App.4th
(1959). . . . . . . . . . . . . . . . . . . . . . . .702 1109, 41 Cal.Rptr.2d 46 (1995) . . . . . . . . . 2700
Hopkins v. Yellow Cab Co., 114 Cal.App.2d 394, 250 Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117
P.2d 330 (1952) . . . . . . . . . . . . . . . . . . 901 L.Ed.2d 156 (1992) . . . . . . . . . 3001; 3041–3043
Hopkins, 225 Cal.App.4th 736, 170 Cal.Rptr.3d Huff v. Wilkins, 138 Cal. App. 4th 732, 41 Cal. Rptr. 3d
551 . . . . . . . . . . . . . . . . . . . . . . . . . 456 754 . . . . . . . . . . . . . . . . . . . . . . 470; 472
Hopkins, 573 F.3d 752. . . . . . . . . . . . . . . .3027 Huffman v. City of Poway, 84 Cal.App.4th 975, 101
Horiike v. Coldwell Banker Residential Brokerage Co., 1 Cal.Rptr.2d 325, 65 Cal. Comp. Cases 1280
Cal.5th 1024, 210 Cal. Rptr. 3d 1, 383 P.3d 1094 (2000) . . . . . . . . . . . . . . . . . 470–472; 2800
(2016) . . . . . . . . . . . . . . . . . . . . . . . 4109 Huffman v. County of Los Angeles, 147 F.3d 1054 (9th
Horn v. Atchison, Topeka & Santa Fe Ry. Co, 61 Cal.2d Cir. 1998) . . . . . . . 3000; 3020–3023; 3040; 3042
602, 39 Cal.Rptr. 721, 394 P.2d 561, 29 Cal. Comp. Huffman v. Lindquist, 37 Cal.2d 465, 234 P.2d 34, 29
Cases 215 (1964) . . . . . . . . . . . . . . 106; 5002 A.L.R.2d 485 (1951). . . . . . . . . . . . . . . .505
Horne v. Peckham, 97 Cal.App.3d 404, 158 Cal.Rptr. Hughes v. Blue Cross of Northern California, 215
714, 207 U.S.P.Q. 527 (1979) . . . . . . . . . . . 604 Cal.App.3d 832, 263 Cal.Rptr. 850 (1989) . . . 2331
Horwich v. Superior Court, 21 Cal.4th 272, 87 Hughes v. Kisela, 841 F.3d 1081 (9th Cir. 2016). .3020
Cal.Rptr.2d 222, 980 P.2d 927 (1999). . . . . . .407 Hughes v. Pair, 46 Cal.4th 1035, 95 Cal.Rptr.3d 636, 209
Hot Rods, LLC v. Northrop Grumman Systems Corp., P.3d 963 (2009) . . . . . . . . . . . 1600; 1604; 3065
242 Cal.App.4th 1166, 196 Cal.Rptr.3d 53 Hughes v. Wardwell, 117 Cal.App.2d 406, 255 P.2d 881
(2015). . . . . . . . . . . . . . . . . . . . . . . .314 (1953). . . . . . . . . . . . . . . . . . . . . . . .722
Houghton v. Lawton, 63 Cal.App. 218, 218 P. 475 Hughey v. Candoli, 159 Cal.App.2d 231, 323 P.2d 779
(1923). . . . . . . . . . . . . . . . . . . . . . . .337 (1958). . . . . . . . . . . . . . . . . . . . . . . .431
Housley v. Godinez, 4 Cal.App.4th 737, 6 Cal.Rptr.2d Hui v. Sturbaum, 222 Cal.App.4th 1109, 166 Cal.Rptr.3d
111 (1992) . . . . . . . . . . . . . . . . . . . . . 712 569 (2014) . . . . . . . . . . 1700–1705; 1723, 1724
Howard v. American National Fire Ins. Co., 187 Huitt v. Southern California Gas Co., 188 Cal.App.4th
Cal.App.4th 498, 115 Cal.Rptr.3d 42 (2010) . . 2334; 1586, 116 Cal.Rptr.3d 453 (2010) . . . . . . . . 1205
2336 Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 327
Howard v. County of Amador, 220 Cal.App.3d 962, 269 P.2d 131, 80 A.L.R.2d 360 (1958). . . . . . . . .554
Cal.Rptr. 807 (1990) . . . . . . . . . . . . . . . . 337 Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 116 L. Ed.
Howard v. Global Marine, Inc., 28 Cal.App.3d 809, 105 2d 589 (1991). . . . . . . . . . . . . . . . . . .3021
Cal.Rptr. 50, 37 Cal. Comp. Cases 1004 Hunter v. County of Sacramento, 652 F.3d 1225 (9th Cir.
(1972) . . . . . . . . . . . . . . . . . . . . . . 3904B 2011) . . . . . . . . . . . . . . . . . . . . . . . 3002
Howard v. Omni Hotels Mgmt. Corp., 203 Cal.App.4th Hunter v. Croysdill, 169 Cal.App.2d 307, 337 P.2d 174
403, 136 Cal.Rptr.3d 739 (2012) . .1011; 1204; 1221 (1959) . . . . . . . . . . . . . . . . . . . . . . . 3931
Howard v. Owens Corning, 72 Cal.App.4th 621, 85
Cal.Rptr.2d 386 (1999). . . . . . . . . . . . . . .219
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Huntsinger v. Glass Containers Corp., 22 Cal.App.3d Interstate Group Administrators, Inc. v. Cravens, Dargan
803, 99 Cal.Rptr. 666, 37 Cal. Comp. Cases 896 & Co., 174 Cal.App.3d 700, 220 Cal.Rptr. 250
(1972) . . . . . . . . . . . . . . . . . . . . . . . 3725 (1985). . . . . . . . . . . . . . . . . . . . . . . .372
Husman v. Toyota Motor Credit Corp., 12 Cal.App.5th Inzana v. Turlock Irrigation Dist. Bd. of Directors, 35
1168, 220 Cal.Rptr.3d 42 (2017) . .2500; 2505; 2512 Cal.App.5th 429, 247 Cal.Rptr.3d 427 (2019). .4902
Huverserian v. Catalina Scuba Luv, Inc., 184 Cal.App.4th Ion Equipment Corp. v. Nelson, 110 Cal.App.3d 868, 168
1462, 110 Cal.Rptr.3d 112 (2010) . . . . . . . . .451 Cal.Rptr. 361 (1980) . . . . . . . . . . . . . . . 1520
Huynh v. Ingersoll-Rand, 16 Cal.App.4th 825, 20 Irwin v. City of Hemet, 22 Cal.App.4th 507, 27
Cal.Rptr.2d 296 (1993) . . . . . . . . . . . . . . 1245 Cal.Rptr.2d 433 (1994) . . . . . . . . . . . . . . 3003
Hyatt v. Sierra Boat Co., 79 Cal.App.3d 325, 145 Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112,
Cal.Rptr. 47 (1978). . . . . . . . . . . . . .220; 709 211 Cal.Rptr. 356, 695 P.2d 653 (1985) . . . . . 1005
Hydrotech Systems, Ltd. v. Oasis Waterpark, 52 Cal.3d Isaacson v. California Insurance Guarantee Assn., 44
988, 277 Cal.Rptr. 517, 803 P.2d 370, 277 Cal. Rptr. Cal.3d 775, 244 Cal.Rptr. 655, 750 P.2d 297
517 (1991) . . . . . . . . . . . . . . . . . 4560, 4561 (1988) . . . . . . . . . . . . . . . . . . . 2300; 2334
Isip v. Mercedes-Benz USA, LLC, 155 Cal.App.4th 19,
I 65 Cal.Rptr.3d 695 (2007) . . . . . . . . . . . . 3210
Issa v. Applegate, 31 Cal.App.5th 689, 242 Cal.Rptr.3d
Ibarbia v. Regents of the University of California, 191
809, 242 Cal. Rptr. 3d 809 (2019) . . . . 1700; 1707
Cal.App.3d 1318, 237 Cal.Rptr. 92 (1987) . . . 2502
Itano v. Colonial Yacht Anchorage, 267 Cal.App.2d 84,
Ibrahim v. Ford Motor Co., 214 Cal.App.3d 878, 263
72 Cal.Rptr. 823 (1968) . . . . . . . . . . . . . 3903J
Cal.Rptr. 64 (1989). . . . . .3200, 3201; 3230; 3244
ITT Small Business Finance Corp. v. Niles, 9 Cal.4th
I-CA Enterprises, Inc. v. Palram Americas, Inc., 235
245, 36 Cal.Rptr.2d 552, 885 P.2d 965 (1994) . . 604
Cal.App.4th 257, 185 Cal. Rptr. 3d 24 (2015) . 2200;
Iverson v. Atlas Pacific Engineering, 143 Cal.App.3d 219,
2202
191 Cal.Rptr. 696 (1983) . . . . . . . . . . . . . 2811
Igauye v. Howard, 114 Cal.App.2d 122, 249 P.2d 558
Iverson, Yoakum, Papiano & Hatch v. Berwald, 76
(1952) . . . . . . . . . . . . . . . . . . . . . . . 2100
Cal.App.4th 990, 90 Cal.Rptr.2d 665 (1999) . . . 371
Ignat v. Yum! Brands, Inc., 214 Cal.App.4th 808, 154
Iwai; United States v., 930 F.3d 1141 (9th Cir.
Cal.Rptr.3d 275 (2013) . . . . . . . . . . . . . . 1801
2019) . . . . . . . . . . . . . . . . . . . . . . . 3026
IIG Wireless, Inc. v. Yi, 22 Cal.App.5th 630, 231
Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal.5th 1130, 266
Cal.Rptr.3d 771 (2018) . . . . . . . . . . 3600; 3610
Cal.Rptr.3d 665, 470 P.3d 571, 2020-2 Trade Cas.
Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111
(CCH) P81313 (2020) . . . . . . . . . . . . . . 2201
L.Ed.2d 148 (1990). . . . . . . . . . . . . . . .3025
Izell v. Union Carbide Corp., 231 Cal.App.4th 962, 180
Imperial Casualty & Indemnity Co., 198 Cal.App.3d 169,
Cal. Rptr. 3d 382 (2014) . . . 435; 3940; 3942, 3943;
243 Cal.Rptr. 639 . . . . . . . . . . . . . 2308, 2309
3945; 3947; 3949
Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 112 P.2d 631
(1941) . . . . . . . . . . . . . . . . . . . . . . . 2200
J
In re Estate of (see name of party)
In re Marriage of (see name of party) J’Aire Corp. v. Gregory, 24 Cal.3d 799, 157 Cal.Rptr.
In re (see name of party) 407, 598 P.2d 60 (1979) . . . . . . . . . . . . . 2204
Inglewood Redevelopment Agency v. Aklilu, 153 J.B.B. Investment Partners, Ltd. v. Fair, 232 Cal.App.4th
Cal.App.4th 1095, 64 Cal.Rptr.3d 519 (2007). .3513 974, 182 Cal.Rptr.3d 154 (2014) . . . . . . . . . 380
Inouye v. Pacific Southwest Airlines, 126 Cal.App.3d J.C. Peacock, Inc. v. Hasko, 196 Cal.App.2d 353, 16
648, 179 Cal.Rptr. 13 (1981). . . . . . . . . . .5013 Cal.Rptr. 518, 88 A.L.R.2d 1430 (1961) . . . . . 370
Insua v. Scottsdale Ins. Co., 104 Cal.App.4th 737, 129 J.J. v. M.F., 223 Cal.App.4th 968, 167 Cal.Rptr.3d 670
Cal.Rptr.2d 138 (2002) . . . . . . . . . . . . . . 2322 (2014) . . . . . . . . . . . . . . . . . . . . . . . 1304
International Harvester Co.; United States v., 274 U.S. J.L. v. Children’s Institute, Inc., 177 Cal. App. 4th 388, 99
693, 47 S.Ct. 748, 71 L.Ed. 1302 (1927) . . . . 3406 Cal. Rptr. 3d 5 (2009) . . . . . . . . . . . . . . 3713
International Union, United Automobile, Aerospace and J. P. v. Carlsbad Unified Sch. Dist., 232 Cal.App.4th 323,
Agricultural Implement Workers of America, UAW v. 181 Cal.Rptr.3d 286 (2014) . . . . 456; 3903A; 5012
Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, Jabo v. YMCA of San Diego County, 27 Cal.App.5th 853,
113 L.Ed.2d 158, 14 O.S.H. Cas. (BNA) 2102 238 Cal.Rptr.3d 588 (2018) . . . . . . . . . . . 450C
(1991) . . . . . . . . . . . . . . . . . . . . . . . 2501
TC-32
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Jackson v. AEG Live, LLC, 233 Cal.App.4th 1156, 183 Jeff Tracy, Inc. v. City of Pico Rivera, 240 Cal.App.4th
Cal. Rptr. 3d 394 (2015). . . . . . .426; 3704, 3705 510, 192 Cal. Rptr. 3d 600 (2015) . . . . . . . . 4560
Jackson v. Barnes, 749 F.3d 755 (9th Cir. 2014) . . 3001 Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S.
Jackson v. Deft, Inc., 223 Cal.App.3d 1305, 273 Cal.Rptr. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2, 1984-1 Trade Cas.
214 (1990). . . . . . . . . . . . . .1205; 1246, 1247 (CCH) P65908 (1984) . . . . . . . . . . . 3420, 3421
Jackson v. Mayweather, 10 Cal.App.5th 1240, 217 Cal. Jeld-Wen, Inc. v. Superior Court, 131 Cal.App.4th 853,
Rptr. 3d 234 (2017) . . . . . 1700; 1720; 1801, 1802 32 Cal.Rptr.3d 351 (2005) . . . . . . . . . . . . 3712
Jackson v. Paramount Pictures Corp., 68 Cal.App.4th 10, Jenni Rivera Enterprises, LLC v. Latin World
80 Cal.Rptr.2d 1 (1998) . . . . . . . . . . . . . 1700 Entertainment Holdings, Inc., 36 Cal.App.5th 766,
Jackson v. Rogers & Wells, 210 Cal.App.3d 336, 258 249 Cal.Rptr.3d 122 (2019) . . . . . . . . . . . 2200
Cal.Rptr. 454 (1989) . . . . . . . . . . . . . . . . 302 Jennings v. Palomar Pomerado Health Systems, Inc., 114
Jackson v. Superior Court, 30 Cal.App.4th 936, 36 Cal. Cal.App.4th 1108, 8 Cal.Rptr.3d 363 (2003) . . . 500
Rptr. 2d 207 (1994). . . . . . . . . . . . . . . .3061 Jensen v. BMW of North America, Inc., 35 Cal.App.4th
Jackson v. Yarbray, 179 Cal.App.4th 75, 101 Cal.Rptr.3d 112, 41 Cal.Rptr.2d 295 (1995) . . . . . . 3201; 3244
303 (2009) . . . . . . . . . . . . . . . . . 1530; 3930 Jenson v. Kenneth I. Mullen, Consulting Engineers, Inc.,
Jackson, 223 Cal.App.3d 1305, 273 Cal.Rptr. 214 . 1247 211 Cal.App.3d 653, 259 Cal.Rptr. 552 (1989) . 1010
Jacobs v. Coldwell Banker Residential Brokerage Co., 14 Jesse G., Conservatorship of, 248 Cal.App.4th 453, 203
Cal.App.5th 438, 221 Cal. Rptr. 3d 701 (2017) . 1004 Cal. Rptr. 3d 667 (2016) . . . . . . . . . . . . . 4002
Jacobs v. Locatelli, 8 Cal.App.5th 317, 213 Cal.Rptr.3d Jett v. Dallas Independent School Dist., 491 U.S. 701,
514 (2017) . . . . . . . . . . . . . . . . . . . . . 314 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989). . .3002;
3004
Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc,
190 Cal.App.4th 1502, 119 Cal.Rptr.3d 529 Jiagbogu v. Mercedes-Benz USA, 118 Cal.App.4th 1235,
(2010). . . . . . . . . . . . . . . . . . . . . . . .418 13 Cal.Rptr.3d 679 (2004) . . . . . 3203; 3230; 3241
Jacoves v. United Merchandising Corp., 9 Cal.App.4th Jimenez v. Pacific Western Construction Co., 185
88, 11 Cal.Rptr.2d 468 (1992) . . . . . . . . . . 3922 Cal.App.3d 102, 229 Cal.Rptr. 575 (1986) . . . 3708
Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335 Jimenez v. Roseville City School Dist., 247 Cal.App.4th
(1941) . . . . . . . . . . . . . . . . . . . . . . . 1500 594, 202 Cal. Rptr. 3d 536 (2016) . . . . . . 470–472
Jameson v. Desta, 215 Cal. App. 4th 1144, 155 Cal. Rptr. Jimenez v. 24 Hour Fitness USA, Inc., 237 Cal.App.4th
3d 755 (2013) . . . . . . . . . . . . . . . . . . . 532 546, 188 Cal.Rptr.3d 228 (2015). . . . . . .425; 451
Jameson v. Pacific Gas & Electric Co., 16 Cal.App.5th Jimenez, 247 Cal.App.4th 594, 202 Cal.Rptr.3d
901, 225 Cal. Rptr. 3d 171 (2017) . . . . . . . . 2404 536 . . . . . . . . . . . . . . . . . . . . . . . . . 471
Jamestown Builders, Inc. v. General Star Indemnity Co., Jiminez v. Sears, Roebuck & Co., 4 Cal.3d 379, 93
77 Cal.App.4th 341, 91 Cal.Rptr.2d 514 (1999).2322 Cal.Rptr. 769, 482 P.2d 681, 52 A.L.R.3d 92
(1971) . . . . . . . . . . . . . . . . . . . 1202; 1220
Jamgotchian v. Slender, 170 Cal.App.4th 1384, 89
Cal.Rptr.3d 122 (2009) . . . . . . . . . . . . . . 2101 J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP,
247 Cal.App.4th 87, 201 Cal.Rptr.3d 782
Janice H. v. 696 North Robertson, LLC, 1 Cal.App.5th
(2016). . . . . .1700–1705; 1707; 1724; 1730, 1731
586, 205 Cal. Rptr. 3d 103 (2016) . . . . . . . . 1005
JMR Construction Corp. v. Environmental Assessment &
Japanese-American Religious & Cultural Center, 43
Remediation Management, Inc., 243 Cal.App.4th 571,
Cal.App.4th 525, 50 Cal.Rptr.2d 671 . . . . . . . 470
198 Cal.Rptr.3d 47 (2015) . . . 321, 322; 4541; 4543
Jasmine Networks, Inc. v. Superior Court, 180
Joaquin v. City of Los Angeles, 202 Cal.App.4th 1207,
Cal.App.4th 980, 103 Cal.Rptr.3d 426 (2009) . 4400,
136 Cal.Rptr.3d 472 (2012) . . . . . . . . . . . 2505
4401
Jocer Enterprises, Inc. v. Price, 183 Cal.App.4th 559, 107
Javorsky v. Western Athletic Clubs, Inc., 242 Cal.App.4th
Cal.Rptr.3d 539 (2010) . . . . . . . . . . . . 610, 611
1386, 195 Cal. Rptr. 3d 706 (2015). . . .3060; 3062
Jogani v. Superior Court, 165 Cal.App.4th 901, 81
Jay v. Mahaffey, 218 Cal.App.4th 1522, 161 Cal.Rptr.3d
Cal.Rptr.3d 503 (2008). . . . . . . . . . . . . . .375
700 (2013). . . . . . . . . . . . . . . . . . . . .1501
Johansen v. California State Auto. Assn. Inter-Insurance
Jeewarat v. Warner Brothers Entertainment, Inc., 177
Bureau, 15 Cal.3d 9, 123 Cal. Rptr. 288, 538 P.2d 744
Cal.App.4th 427, 98 Cal.Rptr.3d 837, 74 Cal. Comp.
(1975). . . . . . . . . . . . . . . . . . . .2334, 2335
Cases 1075 (2009) . . . . . . . . . . . . . 3725–3727
TC-33
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Johanson v. Dept. of Motor Vehicles, 36 Cal.App.4th Jones v. Aetna Casualty & Surety Co., 26 Cal.App.4th
1209, 43 Cal.Rptr.2d 42 (1995) . . . . . . . . . 1403 1717, 33 Cal.Rptr.2d 291 (1994) . . . . . . . . . 301
John B. v. Superior Court, 38 Cal.4th 1177, 45 Jones v. Awad, 39 Cal.App.5th 1200, 252 Cal.Rptr.3d 596
Cal.Rptr.3d 316, 137 P.3d 153, 45 Cal. Rptr. 3d 316 (2019). . . . . . . . . . . . . . . . . . . . . . . .418
(2006). . . . . . . . . . . . . . . . . . . . . . . .429 Jones v. Bayley, 49 Cal.App.2d 647, 122 P.2d 293
John Doe 2 v. Superior Court, 1 Cal.App.5th 1300, 206 (1942). . . . . . . . . . . . . . . . . . . . . . . .403
Cal.Rptr.3d 60 (2016). . . . . . . . . . . . . . .1707 Jones v. ConocoPhillips Co., 198 Cal.App.4th 1187, 130
John R. v. Oakland Unified Sch. Dist., 48 Cal.3d 438, 256 Cal.Rptr.3d 571 (2011). . . . . . . . . . . . . . .430
Cal.Rptr. 766, 769 P.2d 948 (1989) . . . . . . . . 456 Jones v. Consolidated Rail Corp., 800 F.2d 590 (6th Cir.
Johnson v. Aetna Life Insurance Co., 221 Cal.App.2d 1986) . . . . . . . . . . . . . . . . . . . . . . . 2941
247, 34 Cal.Rptr. 484 (1963) . . . . . . . . . . . 218 Jones v. County of L.A., 802 F.3d 990 (9th Cir.
Johnson v. American Standard, Inc., 43 Cal.4th 56, 74 2015) . . . . . . . . . . . . . . . . . . . . . . . 3051
Cal.Rptr.3d 108, 179 P.3d 905 (2008) . . . . . . 1244 Jones v. Credit Auto Center, Inc., 237 Cal.App.4th Supp.
Johnson v. Harcourt, Brace, Jovanovich, Inc., 43 1, 188 Cal.Rptr.3d 578 (2015). . . . . . .3220; 4700
Cal.App.3d 880, 118 Cal.Rptr. 370 (1974) . . . 1801 Jones v. Department of Corrections, 152 Cal.App.4th
Johnson v. Honeywell Internat. Inc., 179 Cal.App.4th 1367, 62 Cal.Rptr.3d 200 (2007) . . . . . 2500; 2524
549, 101 Cal.Rptr.3d 726 (2009). . . . . . . . .1244 Jones v. John Crane, Inc., 132 Cal.App.4th 990, 35
Johnson v. Lewis, 217 F.3d 726 (9th Cir. 2000) . . 3043 Cal.Rptr.3d 144 (2005). . . . . . . . . . . . . . .435
Johnson v. McConnell, 80 Cal. 545, 22 P. 219 . . 3903O Jones v. Kmart Corp., 17 Cal.4th 329, 70 Cal.Rptr.2d 844,
Johnson v. McMahan, 68 Cal.App.4th 173, 80 949 P.2d 941 (1998) . . . . . . . . . . . . . . . 3066
Cal.Rptr.2d 173 (1998). . . . . . . . . . . . . . .463 Jones v. The Lodge at Torrey Pines Partnership, 42
Johnson v. Open Door Community Health Centers, 15 Cal.4th 1158, 72 Cal.Rptr.3d 624, 177 P.3d 232
Cal. App. 5th 153, 222 Cal. Rptr. 3d 839 (2008) . . . . . . . . . . . . . . . . . . . 2505; 2527
(2017) . . . . . . . . . . . . . . . . . . . . . 555, 556 Jones v. P.S. Development Co., Inc., 166 Cal.App.4th
Johnson v. Prasad, 224 Cal.App.4th 74, 168 Cal.Rptr.3d 707, 82 Cal.Rptr.3d 882 (2008) . . . . . . . . . 4552
196 (2014). . . . . . . . . . . . . . . . . . . . .1006 Jones v. Toyota Motor Co., 198 Cal.App.3d 364, 243
Johnson v. The Raytheon Co., Inc., 33 Cal.App.5th 617, Cal.Rptr. 611 (1988) . . . . . . . . . . . . . 422; 709
245 Cal.Rptr.3d 282, 84 Cal. Comp. Cases 167 Jones v. Tracy School Dist., 27 Cal.3d 99, 165 Cal.Rptr.
(2019) . . . . . . . . . . . . . . . . . . . . . . . 1004 100, 611 P.2d 441 (1980). . . . . . . . . . . . .2740
Johnson v. Superior Court, 25 Cal.App.4th 1564, 31 Jones v. Williams, 297 F.3d 930 (9th Cir. 2002) . . 3000
Cal.Rptr.2d 199 (1994) . . . . . . . . . . . . . . 1502 Jones, 166 Cal.App.4th 707, 82 Cal.Rptr.3d 882 . . 4552
Johnson v. Tosco Corp., 1 Cal.App.4th 123, 1 Cal.Rptr.2d Jones, 802 F.3d 990 . . . . . . . . . . . . . . . . . 3051
747 (1991) . . . . . . . . . . . . . . . . . . . . . 415 Jones, Conservatorship of, 208 Cal.App.3d 292, 256
Johnson v. United States Steel Corp., 240 Cal.App.4th 22, Cal.Rptr. 415 (1989) . . . . . . . . 4002; 4007, 4008
192 Cal.Rptr.3d 158 (2015).1200, 1201; 1203, 1204; Jong v. Kaiser Foundation Health Plan, Inc., 226
1208 Cal.App.4th 391, 171 Cal.Rptr.3d 874 (2014). .2702
Johnson v. Unocal Corp, 21 Cal.App.4th 310, 26 Cal. Jordache Enterprises, Inc. v. Brobeck, Phleger &
Rptr. 2d 148 (1993). . . . . . . . . . . . . . . .1010 Harrison, 18 Cal.4th 739, 76 Cal.Rptr.2d 749, 958 P.2d
Johnson, 43 Cal.4th 56, 74 Cal.Rptr.3d 108, 179 P.3d 1062 (1998) . . . . . . . . . . . . . . . 601; 610, 611
905. . . . . . . . . . . . . . . . . . . . . . . . .1244 Jordan v. Allstate Ins. Co., 148 Cal.App.4th 1062, 56
Johnson, 179 Cal.App.4th 549, 101 Cal.Rptr.3d Cal.Rptr.3d 312 (2007) . . . . . . . 2330–2332; 2337
726. . . . . . . . . . . . . . . . . . . . . . . . .1244 Jordy v. County of Humboldt, 11 Cal.App.4th 735, 14
Johnson & Johnson Talcum Powder Cases, 37 Cal.Rptr.2d 553 (1992) . . . . . . . . . . . . . . 3713
Cal.App.5th 292, 249 Cal.Rptr.3d 642 (2019). .1222 Jorge v. Culinary Institute of America, 3 Cal.App.5th 382,
Johnson, Conservatorship of, 235 Cal.App.3d 693, 1 207 Cal.Rptr.3d 586 (2016) . . . . . . . . . . . 3725
Cal.Rptr. 2d 46 (1991). . . . . . . . . . .4007, 4008 Joslin v. Gertz, 155 Cal.App.2d 62, 317 P.2d 155
Johnson Controls, Inc. v. Fair Employment & Housing (1957). . . . . . . . . . . . . . . . . . . . . . . .372
Com., 218 Cal.App.3d 517, 267 Cal.Rptr. 158, 14 Joyce v. Atlantic Richfield Co., 651 F.2d 676 (10th Cir.
O.S.H. Cas. (BNA) 1457 (1990) . . . . . . . . . 2501 1981) . . . . . . . . . . . . . . . . . . . . . . . 2905
Jolley v. Chase Home Finance, LLC, 213 Cal.App.4th JSJ Limited Partnership v. Mehrban, 205 Cal.App.4th
872, 153 Cal.Rptr.3d 546 (2013). . . . . . . . .1904 1512, 141 Cal.Rptr.3d 338 (2012). . . . .1501; 1520
Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 245 Cal.Rptr.
658, 751 P.2d 923 (1988) . . . . . . . . . . 454, 455
TC-34
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Juarez v. Superior Court, 31 Cal.3d 759, 183 Cal.Rptr. Karbelnig v. Brothwell, 244 Cal.App.2d 333, 53 Cal.Rptr.
852, 647 P.2d 128 (1982) . . . . . . . . . 5017; 5022 335 (1966). . . . . . . . . . . . . . . . . . . . .4324
Judicial Council of California v. Jacobs Facilities, Inc., Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th
239 Cal.App.4th 882, 191 Cal.Rptr.3d 714 Cir. 2012). . . . . . . . . . . . . . . . . .3050; 3053
(2015). . . . . . . . . . . . . . . . . . . .4560, 4561 Karpinski v. Smitty’s Bar, Inc., 246 Cal.App.4th 456, 201
Julian v. Hartford Underwriters Ins. Co., 35 Cal.4th 747, Cal. Rptr. 3d 148 (2016) . . . . . . . . . . . 321, 322
27 Cal.Rptr.3d 648, 110 P.3d 903 (2005) . . . . 2306 Kase v. Metalclad Insulation Corp., 6 Cal.App.5th 623,
Julian v. Mission Community Hospital, 11 Cal.App.5th 212 Cal. Rptr. 3d 198 (2016). . . . . . . . . . .1246
360, 218 Cal. Rptr. 3d 38 (2017). .3000; 3021; 3066 Kasparian v. County of Los Angeles, 38 Cal.App.4th 242,
Jumaane v. City of Los Angeles, 241 Cal.App.4th 1390, 45 Cal.Rptr.2d 90 (1995) . . . . . . . . . 2200; 2202
194 Cal. Rptr. 3d 689 (2015). . . .2502; 2505; 2508 Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32
L.Ed.2d 212 (1972) . . . . . . . . . . . . . . . . 216
K Kataoka v. May Dept. Stores Co., 60 Cal.App.2d 177,
140 P.2d 467 (1943) . . . . . . . . . . . . . . . . 412
K.C. Multimedia, Inc. v. Bank of America Technology &
Kately v. Wilkinson, 148 Cal.App.3d 576, 195 Cal.Rptr.
Operations, Inc., 171 Cal.App.4th 939, 90 Cal.Rptr.3d
902 (1983). . . . . . . . . . . . . . . . . . . . .1620
247 (2009). . . . . . . . . . . . . . . . . . . . .4400
Katiuzhinsky v. Perry, 152 Cal.App.4th 1288, 62
K.J. v. Arcadia Unified School Dist., 172 Cal.App.4th
Cal.Rptr.3d 309 (2007) . . . . . . . . . . . . . 3903A
1229, 92 Cal.Rptr.3d 1 (2009). . . . . . . . . . .456
Katsura v. City of San Buenaventura, 155 Cal.App.4th
K.W., Conservatorship of, 13 Cal.App.5th 1274, 221
104, 65 Cal.Rptr.3d 762 (2007) . . . . . . . . . 4522
Cal.Rptr.3d 622 (2017) . . . . . . . . . . 4000; 4010
Katz v. Enos, 68 Cal.App.2d 266, 156 P.2d 461
Kagan v. Gibraltar Sav. & Loan Ass’n, 200 Cal.Rptr. 38,
(1945) . . . . . . . . . . . . . . . . . . . . . . . 2100
35 Cal. 3d 582, 676 P.2d 1060, 200 Cal. Rptr.
38 . . . . . . . . . . . . . . . . . . . . . . . . . 4701 Katzberg v. Regents of University of California, 29
Cal.4th 300, 127 Cal.Rptr.2d 482, 58 P.3d 339
Kahn v. Bower, 232 Cal.App.3d 1599, 284 Cal.Rptr. 244
(2002) . . . . . . . . . . . . . . . . . . . . . . . 1800
(1991) . . . . . . . . . . . . . . . . . . . 1701; 1707
Kaufman v. Goldman, 195 Cal.App.4th 734, 124
Kahn v. East Side Union High School District, 31 Cal.4th
Cal.Rptr.3d 555 (2011) . . . . . . . . . . . . . . 4324
990, 4 Cal. Rptr. 3d 103, 75 P.3d 30 (2003) . . . 471
Kaye v. Board of Trustees of San Diego County Public
Kaiser Found. Health Plan, Inc. v. Abbott Labs, Inc., 552
Law Library, 179 Cal.App.4th 48, 101 Cal.Rptr.3d 456
F.3d 1033 (9th Cir. 2009). . . . . . . . . . . . .3430
(2009) . . . . . . . . . . . . . . . . . . . . . . . 4600
Kallis v. Sones, 208 Cal.App.4th 1274, 146 Cal.Rptr.3d
Keates v. Koile, 883 F.3d 1228 (9th Cir. 2018) . . 3000;
419 (2012). . . . . . . . . . . . . . . . . . . . .2002
3005; 3051, 3052
Kalmanovitz v. Bitting, 43 Cal.App.4th 311, 50
Keating v. Preston, 42 Cal.App.2d 110, 108 P.2d 479
Cal.Rptr.2d 332 (1996). . . . . . . . . . . . . . .301
(1940) . . . . . . . . . . . . . . . . . . . . . . . 4304
Kalpoe v. Superior Court, 222 Cal.App.4th 206, 166
Keener v. Jeld-Wen, Inc., 46 Cal.4th 247, 92 Cal.Rptr.3d
Cal.Rptr.3d 80 (2013). . . . . . . . . . . . . . .1709
862, 206 P.3d 403 (2009) . . . . . . . . . 5012; 5017
Kane v. Hartford Accident and Indemnity Co., 98
Keith v. Buchanan, 173 Cal.App.3d 13, 220 Cal.Rptr. 392
Cal.App.3d 350, 159 Cal.Rptr. 446 (1979) . . . . 433
(1985). . . . . . . . . . . . .1230; 1232; 1240; 3211
Kane v. Sklar, 122 Cal.App.2d 480, 265 P.2d 29
Keithley v. Civil Service Bd. of The City of Oakland, 11
(1954) . . . . . . . . . . . . . . . . . . . 2401; 2420
Cal.App.3d 443, 89 Cal.Rptr. 809 (1970) . . 332; 334
Kane, 98 Cal.App.3d 350, 159 Cal.Rptr. 446 . . . . 433
Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete
Kangarlou v. Progressive Title Co., Inc., 128 Cal.App.4th
Name & Likeness Licensing Litig.), 724 F.3d 1268,
1174, 27 Cal.Rptr.3d 754 (2005) . . . . . 4101; 4104
107 U.S.P.Q.2d 1629 (9th Cir. 2013) . . . . . . 1805
Kao v. Holiday, 12 Cal.App.5th 947, 219 Cal.Rptr.3d 580
Keller v. Key System Transit Lines, 129 Cal.App.2d 593,
(2017). . . . . . . . . . . . .2701; 2704; 2720, 2721
277 P.2d 869 (1954) . . . . . . . . . . . . . . . . 213
Kao v. University of San Francisco, 229 Cal.App.4th 437,
Kelley v. The Conco Cos., 196 Cal.App.4th 191, 126
177 Cal.Rptr.3d 145 (2014) . . . . . . . . 3071; 3963
Cal.Rptr.3d 651 (2011) . . . . . . . 2430; 2505; 2509
Kaplan v. Mamelak, 162 Cal.App.4th 637, 75 Cal.Rptr.3d
Kelley v. Southern Pacific Co., 419 U.S. 318, 95 S.Ct.
861 (2008) . . . . . . . . . . . . . . . . . 530A; 555
472, 42 L.Ed.2d 498, 40 Cal. Comp. Cases 841
Kappel v. Bartlett, 200 Cal.App.3d 1457, 246 Cal.Rptr. (1974). . . . . . . . . . . . . . . . . . . .2923, 2924
815 (1988). . . . . . . . . . . . . . . . . . . . .1520
TC-35
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Kellogg v. Asbestos Corp. Ltd., 41 Cal.App.4th 1397, 49 Kidron v. Movie Acquisition Corp., 40 Cal.App.4th 1571,
Cal.Rptr.2d 256, 61 Cal. Comp. Cases 49 47 Cal.Rptr.2d 752 (1995). . . . . . . . .3600, 3601
(1996) . . . . . . . . . . . . . . . . . . . . . . . 3920 Kim v. Konad USA Distribution, Inc., 226 Cal.App.4th
Kelly v. CB&I Constructors, Inc., 179 Cal.App.4th 442, 1336, 172 Cal.Rptr.3d 686 (2014). . . . .2430; 2508
102 Cal.Rptr.3d 32 (2009) . . . . 2003; 2031; 3903F Kim v. Toyota Motor Corp., 6 Cal.5th 21, 237 Cal. Rptr.
Kelly v. General Electric Co., 110 F.Supp. 4 (E.D.Pa. 3d 205, 424 P.3d 290 (2018) . . . . . . . . . . . 1204
1953) . . . . . . . . . . . . . . . . . . . . . . . 2925 Kim, 226 Cal.App.4th 1336, 172 Cal.Rptr.3d 686.2430;
Kelly v. General Telephone Co., 136 Cal.App.3d 278, 186 2508
Cal.Rptr. 184 (1982) . . . . . . . . . . . . . . . 2711 Kimes v. Grosser, 195 Cal.App.4th 1556, 126 Cal. Rptr.
Kelly v. Orr, 243 Cal.App.4th 940, 196 Cal. Rptr. 3d 901 3d 581 (2011) . . . . . . . . . . . . . . 3903J; 3903O
(2016) . . . . . . . . . . . . . . . . . . . . . 610, 611 Kimmel v. Goland, 51 Cal.3d 202, 271 Cal.Rptr. 191, 793
Kelly, 179 Cal.App.4th 442, 102 Cal.Rptr.3d 32. .2031; P.2d 524 (1990) . . . . . . . . . . . . . . . . . .1501
3903F Kindrich v. Long Beach Yacht Club, 167 Cal.App.4th
Kelly-Zurian v. Wohl Shoe Co., Inc., 22 Cal.App.4th 397, 1252, 84 Cal. Rptr. 3d 824 (2008) . . . . . . . . 470
27 Cal.Rptr.2d 457 (1994). . . . . . . .2521A; 2524 King v. Karpe, 170 Cal.App.2d 344, 338 P.2d 979
Kelsaw v. Union Pacific Railroad Co., 686 F.2d 819 (9th (1959) . . . . . . . . . . . . . . . . . . . . . . 3903L
Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 2941 King v. Southern Pacific Co., 109 Cal. 96, 41 P. 786
Kendrick v. Klein, 65 Cal.App.2d 491, 150 P.2d 955 (1895) . . . . . . . . . . . . . . . . . . . . . . . 3935
(1944) . . . . . . . . . . . . . . . . . . . . . . . 4900 King v. State of California, 242 Cal.App.4th 265, 195
Kennecott Corp. v. Union Oil Co. of California, 196 Cal.Rptr.3d 286 (2015) . . . 3000; 3021; 3023; 3066
Cal.App.3d 1179, 242 Cal.Rptr. 403 (1987) . . . 318 Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466,
Kennedy v. Bremerton Sch. Dist., 869 F.3d 813 (9th Cir. 192 L. Ed. 2d 416 (2015) . . . . . . . . . . . . 3020
2017) . . . . . . . . . . . . . . . . . . . . . . . 3053 Kinsman v. Unocal Corp., 37 Cal.4th 659, 36 Cal.Rptr.3d
Kenniff v. Caulfield, 140 Cal. 34, 73 P. 803 495, 123 P.3d 931, 70 Cal. Comp. Cases 1692
(1903) . . . . . . . . . . . . . . . . . . . . . . . 2305 (2005) . . . . . . . . . . . . . . . . . . . . . . 1009A
Kerins v. Hartley, 27 Cal.App.4th 1062, 33 Cal.Rptr.2d Kirchmann v. Lake Elsinore Unified School Dist., 83
172 (1994). . . . . . . . . . . . . .1601; 1622, 1623 Cal.App.4th 1098, 100 Cal.Rptr.2d 289 (2000) . 3001
Kerkeles v. City of San Jose, 199 Cal.App.4th 1001, 132 Kirk, In re, 202 Cal.App.2d 288, 20 Cal.Rptr. 787
Cal.Rptr.3d 143, 132 Cal. Rptr. 3d 143 (2011) . 3052 (1962). . . . . . . . . . . . . . . . . . . . . . . .704
Kern Sunset Oil Co. v. Good Roads Oil Co., 214 Cal. Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784 (9th Cir.
435, 6 P.2d 71 (1931). . . . . . . . . . . .336; 4324 2016) . . . . . . . . . . . . . . . . . . . . . . . 3051
Kesner v. Superior Court, 1 Cal.5th 1132, 210 Cal.Rptr.3d Kirkpatrick v. County of Washoe, 792 F.3d 1184 (9th Cir.
283, 384 P.3d 283, 81 Cal. Comp. Cases 1095 2015) . . . . . . . . . . . . . . . . . . . . . . . 3001
(2016) . . . . . . . . . . . . . . . . . 432; 435; 1000 Kirkpatrick, 843 F.3d 784 . . . . . . . . . . . . . . 3051
Kessler v. State of California, 206 Cal.App.3d 317, 253 Kirschner Brothers Oil, Inc. v. Natomas Co., 185
Cal.Rptr. 537 (1988) . . . . . . . . . . . . . . . 1121 Cal.App.3d 784, 229 Cal.Rptr. 899 (1986) . . . 4101
Kevin A., Estate of, 240 Cal. App. 4th 1241, 193 Cal. Kirzhner v. Mercedes-Benz USA, LLC, 9 Cal.5th 966,
Rptr. 3d 237 (2015). . . . . . . . . . . . . . . .4000 266 Cal.Rptr.3d 346, 470 P.3d 56 (2020) . . . . 3201
Keys v. Alta Bates Summit Medical Center, 235 Kiseskey v. Carpenters’ Trust for Southern California,
Cal.App.4th 484, 185 Cal. Rptr. 3d 313 (2015) . 1621 144 Cal.App.3d 222, 192 Cal.Rptr 492 (1983) . 1301
Khajavi v. Feather River Anesthesia Medical Group, 84 Kitchel v. Acree, 216 Cal.App.2d 119, 30 Cal.Rptr. 714
Cal.App.4th 32, 100 Cal.Rptr.2d 627 (2000) . . 2420, (1963). . . . . . . . . . . . . . . . . . . . . . . .354
2421 Klein v. United States of America, 50 Cal.4th 68, 112
Khan v. Shiley Inc., 217 Cal.App.3d 848, 266 Cal.Rptr. Cal.Rptr.3d 722, 235 P.3d 42 (2010). . . . . . .1010
106 (1990). . . . . . . . . . . . . . . . . . . . .1201 Klem v. Access Ins. Co., 17 Cal.App.5th 595, 225
Khawar v. Globe Internat., 19 Cal.4th 254, 79 Cal.Rptr.2d Cal.Rptr.3d 711 (2017) . . . . . . . . . . 1723; 1730
178, 965 P.2d 696 (1998) . .1700; 1702, 1703; 1705; Klepper v. Hoover, 21 Cal.App.3d 460, 98 Cal.Rptr. 482
1802 (1971). . . . . . . . . . . . . . . . . . . . . . . .337
Khodayari v. Mashburn, 200 Cal.App.4th 1184, 132 Klopping v. City of Whittier, 8 Cal.3d 39, 104 Cal.Rptr.
Cal.Rptr.3d 903 (2011). . . . . . . . . . . . . . .606 1, 500 P.2d 1345 (1972) . . . . . . . . . 3501; 3509A
Khosh v. Staples Construction Co., Inc., 4 Cal.App.5th
712, 208 Cal.Rptr.3d 699, 81 Cal. Comp. Cases 1160
(2016) . . . . . . . . . . . . . . . . . . . . . . 1009B
TC-36
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
KNB Enters v. Matthews, 78 Cal.App.4th 362, 92 Krieger v. Nick Alexander Imports, Inc., 234 Cal.App.3d
Cal.Rptr.2d 713, 53 U.S.P.Q.2d 1885 (2000) . 1804A, 205, 285 Cal.Rptr. 717 (1991) . . . . . . . . . . 3222
1804B; 1820 Krieger v. Pacific Gas & Electric Co., 119 Cal.App.3d
Knight v. Hallsthammar, 29 Cal.3d 46, 171 Cal.Rptr. 707, 137, 173 Cal.Rptr. 751 (1981). . . . . . .2000; 2102
623 P.2d 268 (1981) . . . . . . . . . . . . . . . 4320 Krieger, 234 Cal.App.3d 205, 285 Cal.Rptr. 717 . . 3222
Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 Kritzer v. Citron, 101 Cal.App.2d 33, 224 P.2d 808
P.2d 696 (1992) . . . . . . . . . . . . . 451; 470–472 (1950) . . . . . . . . . . . . . . . . . . . . 100; 530A
Knowles v. Robinson, 60 Cal.2d 620, 36 Cal.Rptr. 33, Krotin v. Porsche Cars North America, Inc., 38
387 P.2d 833 (1963) . . . . . . . . . . . . . . . 4300 Cal.App.4th 294, 45 Cal.Rptr.2d 10 (1995) . . . 3241
Knox v. County of Los Angeles, 109 Cal.App.3d 825, 167 Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562
Cal.Rptr. 463 (1980) . . . . . . . . . . . . . . . 3926 P.2d 1022 (1977). . . . . . . . . . . . . .3921, 3922
Knox v. Dean, 205 Cal.App.4th 417, 140 Cal.Rptr.3d 569 Krueger v. Bank of America, 145 Cal.App.3d 204, 193
(2012) . . . . . . . . . . . . . . . . . . . . . . . 4100 Cal.Rptr. 322 (1983) . . . . . . . . . . . . . . . 2102
Knutson v. Foster, 25 Cal.App.5th 1075, 236 Cal.Rptr.3d Krum v. Malloy, 22 Cal.2d 132, 137 P.2d 18
473 (2018) . . . . . . . . . . . . . 600; 3905A; 4106 (1943). . . . . . . . . . . . . . . . . . . . . . . .720
Ko v. Maxim Healthcare Services, Inc., 58 Cal.App.5th Kruse v. Bank of America, 202 Cal.App.3d 38, 248
1144, 272 Cal.Rptr.3d 906 (2020) . . . . . . . . 1621 Cal.Rptr. 217 (1988) . . . . . . . . . . . . . . . . 307
Kobe v. Industrial Acci. Com., 35 Cal.2d 33, 215 P.2d Krusi v. Bear, Stearns & Co., 144 Cal.App.3d 664, 192
736, 15 Cal. Comp. Cases 85 (1950) . . . . . . 3727 Cal.Rptr. 793 (1983) . . . . . . . . . . . . . . . 2102
Kociemba v. G.D. Searle & Co., 707 F.Supp. 1517 Kuitems v. Covell, 104 Cal.App.2d 482, 231 P.2d 552
(D.Minn. 1989) . . . . . . . . . . . . . . . . . . 1221 (1951) . . . . . . . . . . . . . . . . . . . . 328; 4510
Kockelman v. Segal, 61 Cal.App.4th 491, 71 Cal.Rptr.2d Kunza v. Gaskell, 91 Cal.App.3d 201, 154 Cal.Rptr. 101
552 (1998) . . . . . . . . . . . . . . . . . . 471; 502 (1979) . . . . . . . . . . . . . . . . . . . . . . . 4900
Koepke v. Loo, 18 Cal.App.4th 1444, 23 Cal.Rptr.2d 34 Kurland v. United Pacific Ins. Co., 251 Cal.App.2d 112,
(1993) . . . . . . . . . . . . . . . . . . . . .433; 507 59 Cal.Rptr. 258 (1967) . . . . . . . . . . . . . 4500
Kohler Co. v. Superior Court, 29 Cal.App.5th 55, 240 Kuykendall v. State of California, 178 Cal.App.3d 563,
Cal. Rptr. 3d 426 (2018) . . . . . . . . . . . . . 4570 223 Cal.Rptr. 763 (1986) . . . . . . . . . . . . . 1110
Koire v. Metro Car Wash, 40 Cal.3d 24, 219 Cal.Rptr. Kwan v. Mercedes-Benz of N. Am., 23 Cal.App.4th 174,
133, 707 P.2d 195 (1985) . . 3060–3064; 3066, 3067; 28 Cal.Rptr.2d 371 (1994) . . . . . 3240, 3241; 3244
VF-3030–VF-3032; VF-3035 Ky. Fried Chicken of Cal. v. Superior Court, 14 Cal.4th
Kolling v. Dow Jones & Co., 137 Cal.App.3d 709, 187 814, 59 Cal.Rptr.2d 756, 927 P.2d 1260 (1997) . 400;
Cal.Rptr. 797, 1982 Trade Cas. (CCH) P65113, 1982- 1005; 1220
83 Trade Cas. (CCH) P65113 (1982). . .3400–3409;
3411; 3440 L
Koll-Irvine Center Property Owners Assn. v. County of
Orange, 24 Cal.App.4th 1036, 29 Cal.Rptr.2d 664 L.A., County of v. Superior Court, 21 Cal.4th 292, 87
(1994) . . . . . . . . . . . . . . . . . . . . . . . 2021 Cal.Rptr.2d 441, 981 P.2d 68 (1999). . . . . .3903Q
Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th L. Byron Culver & Associates v. Jaoudi Industrial &
1134, 131 Cal.Rptr.2d 29, 63 P.3d 937 Trading Corp., 1 Cal.App.4th 300, 1 Cal.Rptr.2d 680
(2003) . . . . . . . . . . . . . . . . 2200–2202; 2204 (1991) . . . . . . . . . . . . . . . . . . . . . . . 3700
Kornoff v. Kingsburg Cotton Oil Co., 45 Cal.2d 265, 288 L.P. v. Baja Fresh Westlake Village, Inc., 185 Cal.App.4th
P.2d 507 (1955) . . . . . . . . . . . . . . . . . .2031 744, 110 Cal.Rptr.3d 833 (2010) . . . . . 4302–4309
Korsak v. Atlas Hotels, Inc., 2 Cal.App.4th 1516, 3 La Jolla Group II v. Bruce, 211 Cal.App.4th 461, 149
Cal.Rptr.2d 833 (1992). . . . . . . . . . . . . . .206 Cal.Rptr.3d 716 (2012) . . . . . . . . . . . . . . 1730
Kossler v. Palm Springs Developments, Ltd., 101 La Sala v. American Sav. & Loan Assn., 5 Cal.3d 864, 97
Cal.App.3d 88, 161 Cal.Rptr. 423 (1980). . . . .312 Cal.Rptr 849, 489 P.2d 1113 (1971). . . . . . . .115
KOVR-TV, Inc. v. Superior Court, 31 Cal.App.4th 1023, Laabs v. Southern California Edison Company, 175
37 Cal.Rptr.2d 431 (1995) . . . . . . . . . . . . 1603 Cal.App.4th 1260, 97 Cal.Rptr.3d 241 (2009) . . 400
Kowalski v. Shell Oil Co., 23 Cal.3d 168, 151 Cal.Rptr. Laclette v. Galindo, 184 Cal.App.4th 919, 109
671, 588 P.2d 811, 44 Cal. Comp. Cases 134 Cal.Rptr.3d 660 (2010) . . . . . . . . . . . . 610, 611
(1979) . . . . . . . . . . . . . . . . . . . 2923; 3706 Ladas v. California State Automobile Assn., 19
Kozar v. Chesapeake & Ohio Railway Co., 449 F.2d 1238 Cal.App.4th 761, 23 Cal.Rptr.2d 810 (1993). . .302;
(6th Cir. 1971) . . . . . . . . . . . . . . . . . . 2942 307
TC-37
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Ladd v. County of San Mateo, 12 Cal.4th 913, 50 Laureano v. Christensen, 18 Cal.App.3d 515, 95 Cal.Rptr.
Cal.Rptr.2d 309, 911 P.2d 496 (1996). . . . . . .400 872 (1971) . . . . . . . . . . . . . . . . . . . . . 720
Laeng v. Workmen’s Comp. Appeals Bd., 6 Cal.3d 771, Law v. General Motors Corp., 114 F.3d 908 (9th Cir.
100 Cal.Rptr. 377, 494 P.2d 1, 37 Cal. Comp. Cases 1997) . . . . . . . . . . . . . . . . . . . . . . . 2920
185 (1972). . . . . . . . . . . . . . . . . . . . .2800 Law, Conservatorship of, 202 Cal.App.3d 1336, 249 Cal.
Laird v. Blacker, 2 Cal.4th 606, 7 Cal. Rptr. 2d 550, 828 Rptr. 415 (1988) . . . . . . . . . . . . . . 4005, 4006
P.2d 691 (1992). . . . . . . . . . . . . . . .457; 610 Lawrence v. La Jolla Beach & Tennis Club, Inc., 231
Laker v. Board of Trustees of California State University, Cal.App.4th 11, 179 Cal.Rptr.3d 758 (2014) . . 1001
32 Cal.App.5th 745, 244 Cal.Rptr.3d 238 Lawson v. Safeway Inc., 191 Cal.App.4th 400, 119
(2019) . . . . . . . . . . . . . . . . . . . . . . . 2505 Cal.Rptr.3d 366 (2010). . . . . . . . . . . . . . .432
Lakin v. Watkins Associated Industries, 6 Cal.4th 644, 25 Lawton; People v., 48 Cal.App.4th Supp. 11, 56
Cal.Rptr.2d 109, 863 P.2d 179 (1993) . . . . . . 204; Cal.Rptr.2d 521 (1996) . . . . . . . . . . . . . . 1813
2521A–2521C; 2522A–2522C; 3903P Le v. Pham, 180 Cal.App.4th 1201, 103 Cal.Rptr.3d 606
Lambert v. General Motors, 67 Cal.App.4th 1179, 79 (2010). . . . . . . . . . . . . . . . . . . . . . . .101
Cal.Rptr.2d 657 (1998) . . . . . . . . . . 1203, 1204 Le Elder v. Rice, 21 Cal.App.4th 1604, 26 Cal.Rptr.2d
LaMonte v. Sanwa Bank California, 45 Cal.App.4th 509, 749 (1994). . . . . . . . . . . . . . . . . . . . .3725
52 Cal.Rptr.2d 861 (1996) . . . . . . . . . . . . 4101 Leaf v. City of San Mateo, 104 Cal.App.3d 398, 163
Lande v. Southern California Freight Lines, 85 Cal.Rptr. 711 (1980) . . . . . . . . . . . . . . . 2030
Cal.App.2d 416, 193 P.2d 144 (1948). . . . . . .304 Leasman v. Beech Aircraft Corp., 48 Cal.App.3d 376,
Landeros v. Flood, 17 Cal.3d 399, 131 Cal.Rptr. 69, 551 121 Cal.Rptr. 768 (1975). . . . . . . . . . .208, 209
P.2d 389 (1976). . . . . . . . . . . . . . . .433; 501 Lectrodryer v. SeoulBank, 77 Cal.App.4th 723, 91
Lane v. Bell, 20 Cal.App.5th 61, 228 Cal.Rptr.3d 605 Cal.Rptr.2d 881 (2000). . . . . . . . . . . . . . .375
(2018) . . . . . . . . . . . . . . . . . . . . . . . 1501 Lederer v. Gursey Schneider LLP, 22 Cal.App.5th 508,
Lane v. City of Sacramento, 183 Cal.App.4th 1337, 107 231 Cal.Rptr.3d 518 (2018) . . . . . . . . . . . . 454
Cal.Rptr.3d 730 (2010) . . . . . . . . . . . . . . 1102 Ledger v. Tippitt, 164 Cal.App.3d 625, 210 Cal.Rptr. 814
Lange v. TIG Ins. Co., 68 Cal.App.4th 1179, 81 (1985) . . . . . . . . . . . . . . . . . . . . . . . 3920
Cal.Rptr.2d 39 (1998). . . . . . . . . . . . . . .2204 Lee v. Hanley, 61 Cal.4th 1225, 191 Cal.Rptr.3d 536, 354
Lantzy v. Centex Homes, 31 Cal.4th 363, 2 Cal.Rptr.3d P.3d 334, 191 Cal. Rptr. 3d 536 (2015). . .610, 611;
655, 73 P.3d 517 (2003) . . . . . . . . . . . 456, 457 2100; 4106
Lanz v. Goldstone, 243 Cal.App.4th 441, 197 Cal.Rptr.3d Lee v. West Kern Water Dist., 5 Cal.App.5th 606, 210
227 (2015). . . . . . . . . . . . . . . . . . . . .1501 Cal.Rptr.3d 362, 81 Cal. Comp. Cases 966, 210 Cal.
LAOSD Asbestos Cases, 5 Cal. App. 5th 1022, 211 Cal. Rptr. 3d 362 (2016) . . . . . 2800; 2805; 2810; 3965
Rptr. 3d 261 (2016) . . . . . . . . . . . . . . . . 600 Leeper v. Beltrami, 53 Cal.2d 195, 1 Cal.Rptr. 12, 347
LAOSD Asbestos Cases, 28 Cal.App.5th 862, 240 P.2d 12, 77 A.L.R.2d 803 (1959) . . . . . . . . . 332
Cal.Rptr.3d 1 (2018) . . . . . . . . . . . .3921, 3922 Leet v. Union Pacific Railroad Co., 60 Cal.App.2d 814,
Lara v. Nevitt, 123 Cal.App.4th 454, 19 Cal.Rptr.3d 865 142 P.2d 37, 8 Cal. Comp. Cases 284 (1943) . . 2920
(2004) . . . . . . . . . . . . . . . . . . . . 712; 5009 LeFiell, 228 Cal.App.4th 883, 175 Cal.Rptr.3d
Largey v. Intrastate Radiotelephone, Inc., 136 Cal.App.3d 894. . . . . . . . . . . . . . . . . . . . . . . . .2804
660, 186 Cal.Rptr. 520 (1982). . . . . . . . . . .203 Lehmuth v. Long Beach Unified School Dist., 53 Cal.2d
Larimer v. International Business Machines Corp., 370 544, 2 Cal.Rptr. 279, 348 P.2d 887 (1960) . . . 3701
F.3d 698 (7th Cir. 2004) . . . . . . . . . . . . . 2547 Lehr v. Crosby, 123 Cal.App.3d Supp. 1, 177 Cal.Rptr. 96
Las Palmas Associates v. Las Palmas Center Associates, (1981) . . . . . . . . . . . . . . . . . . . . . . . 4340
235 Cal.App.3d 1220, 1 Cal.Rptr.2d 301 (1991).117; Leighton v. Dodge, 236 Cal.App.2d 54, 45 Cal.Rptr. 820
1920; 1922–1924 (1965). . . . . . . . . . . . . . . . . . . . . . . .706
Lat v. Farmers New World Life Ins. Co., 29 Cal.App.5th Leighton v. Forster, 8 Cal.App.5th 467, 213 Cal.Rptr.3d
191, 239 Cal. Rptr. 3d 796 (2018) . . . . . . . . 2320 899 (2017) . . . . . . . . . . . . . . . . . . . . . 373
LaTourette v. Workers’ Comp. Appeals Bd., 17 Cal.4th Leighton v. Old Heidelberg, Ltd., 219 Cal.App.3d 1062,
644, 72 Cal.Rptr.2d 217, 951 P.2d 1184, 63 Cal. 268 Cal.Rptr. 647 (1990) . . . . . . . . . . . . .2752
Comp. Cases 253 (1998) . . . . . . . . . . . . . 2800 Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062
Lattimore v. Dickey, 239 Cal.App.4th 959, 191 (9th Cir. 2013) . . . . . . . . . . . . . . . 3041; 3043
Cal.Rptr.3d 766 (2015). . .219; 500; 502; 504; 3921
TC-38
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
LeMons v. Regents of University of California, 21 Cal.3d Liebovich v. Shahrokhkhany, 56 Cal.App.4th 511, 65
869, 148 Cal.Rptr. 355, 582 P.2d 946 (1978) . . 517; Cal.Rptr.2d 457 (1997). . . . . . . . . . .4302–4309
3930, 3931 Light v. Department of Parks & Recreation, 14
Leonard v. John Crane, Inc., 206 Cal.App.4th 1274, 142 Cal.App.5th 75, 221 Cal.Rptr.3d 668, 82 Cal. Comp.
Cal.Rptr.3d 700 (2012) . . . . . . . . . . . . . . 3920 Cases 987 (2017) . . . . . . . . . . 2505; 2509; 2805
Leonard v. Watsonville Community Hospital, 47 Cal.2d LiMandri v. Judkins, 52 Cal.App.4th 326, 60 Cal.Rptr.2d
509, 305 P.2d 36 (1956) . . . . . . . . . . . . . . 413 539 (1997) . . . . . . . . . . . . . . . . . 2202; 2204
Leslie Salt Co. v. San Francisco Bay Conservation etc. Linder v. Thrifty Oil Co., 23 Cal.4th 429, 97 Cal.Rptr.2d
Com., 153 Cal.App.3d 605, 200 Cal.Rptr. 575 179, 2 P.3d 27 (2000) . . . . . . . . . . . . . . . 115
(1984) . . . . . . . . . . . . . . . . . . . . . . . 2023 Lindner v. Barlow, Davis & Wood, 210 Cal.App.2d 660,
Leung v. Verdugo Hills Hospital, 55 Cal.4th 291, 145 27 Cal.Rptr. 101 (1960) . . . . . . . . . . . . . . 602
Cal.Rptr.3d 553, 282 P.3d 1250 (2012) . . . . . . 514 Lingsch v. Savage, 213 Cal.App.2d 729, 29 Cal.Rptr. 201
Levi v. Regents of University of California, 15 (1963) . . . . . . . . . . . . . . . . . . . 1910; 4109
Cal.App.5th 892, 223 Cal. Rptr. 3d 577 (2017) . 4601 Lint v. Chisholm, 121 Cal.App.3d 615, 177 Cal.Rptr. 314
Levin v. United Air Lines, Inc., 158 Cal.App.4th 1002, 70 (1981) . . . . . . . . . . . . . . . . . . . . . . . 2102
Cal.Rptr.3d 535 (2008) . . . . . . . . . . . . . . 1402 Linton v. DeSoto Cab Co., Inc., 15 Cal.App.5th 1208,
Levine v. Blue Shield of California, 189 Cal.App.4th 223 Cal.Rptr.3d 761, 82 Cal. Comp. Cases 1284
1117, 117 Cal.Rptr.3d 262 (2010) . . . . . . . . . 375 (2017) . . . . . . . . . . . . . . . . . . . . . . . 3704
Levinson v. Owens, 176 Cal.App.4th 1534, 98 Cal. Rptr. Lintz v. Lintz, 222 Cal.App.4th 1346, 167 Cal.Rptr.3d 50
3d 779 (2009) . . . . . . . . . . . . . . . . . . . 470 (2014). . . . . . . . . . . . . . . . . . . .3100; 3117
Levy, Guardianship of, 137 Cal.App.2d 237, 290 P.2d Liodas v. Sahadi, 19 Cal.3d 278, 137 Cal.Rptr. 635, 562
320 (1955). . . . . . . . . . . . . . . . . . . . .2305 P.2d 316 (1977) . . . . . . . . . . . . . . . . . .4200
Lewis v. Bill Robertson & Sons Inc., 162 Cal.App.3d Lipson v. Superior Court, 31 Cal.3d 362, 182 Cal. Rptr.
650, 208 Cal.Rptr. 699 (1984) . . . . . . . . . . 5016 629, 644 P.2d 822 (1982) . . . . . . . . . . . . . 473
Lewis v. City of Benicia, 224 Cal.App.4th 1519, 169 Liptak v. Diane Apartments, Inc., 109 Cal.App.3d 762,
Cal.Rptr.3d 794 (2014). . . . . . . . .2521A; 2522A 167 Cal.Rptr. 440 (1980) . . . . . . . . . . . . .4551
Lewis v. Franklin, 161 Cal.App.2d 177, 326 P.2d 625 Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12
(1958). . . . . . . . . . . . . . . . . . . . . . . .705 Cal.4th 291, 48 Cal.Rptr.2d 510, 907 P.2d 358
Lewis v. Superior Court, 30 Cal.App.4th 1850, 37 (1995) . . . . . . . . . . . . . . . . 3701; 3720; 3722
Cal.Rptr.2d 63 (1994). . . . . . . . . . . . . . .4207 Little v. Amber Hotel Co., 202 Cal.App.4th 280, 136
Lewis v. Ukran, 36 Cal.App.5th 886, 248 Cal.Rptr.3d 839 Cal.Rptr.3d 97 (2011). . . . . . . . . . . . . . .2201
(2019). . . . . . . . . . . . . . . . . .3903D; 3904A Little v. Stuyvesant Life Insurance Co., 67 Cal.App.3d
Lewis, 224 Cal.App.4th 1519, 169 Cal.Rptr.3d 451, 136 Cal.Rptr. 653 (1977) . . . . . . . . . . 1603
794. . . . . . . . . . . . . . . . . . . . . . . .2521A Livaditis; People v., 2 Cal.4th 759, 9 Cal.Rptr.2d 72, 831
Lewis & Queen v. N. M. Ball Sons, 48 Cal.2d 141, 308 P.2d 297 (1992) . . . . . . . . . . . . . . . . . . 212
P.2d 713 (1957) . . . . . . . . . . . . . . 4560, 4561 Live Oak Publishing Co. v. Cohagan, 234 Cal.App.3d
Lewis Jorge Construction Management, Inc. v. Pomona 1277, 286 Cal.Rptr. 198 (1991) . . . . . . 1700; 1708
Unified School Dist., 34 Cal.4th 960, 22 Cal.Rptr.3d Livermore, City of v. Baca, 205 Cal.App.4th 1460, 141
340, 102 P.3d 257, 22 Cal. Rptr. 3d 340 (2004) . 350; Cal.Rptr.3d 271 (2012). . . . . . . . .3511A, 3511B
4544 Livingston v. Marie Callenders, Inc., 72 Cal.App.4th 830,
Leyva v. Garcia, 20 Cal. App. 5th 1095, 236 Cal. Rptr. 3d 85 Cal.Rptr.2d 528 (1999) . . . . . . . . . . . . 1206
128 (2018) . . . . . . . . . . . . . . . . . . . . . 430 Lloyd’s Underwriters v. Craig & Rush, Inc., 26
Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, Cal.App.4th 1194, 32 Cal.Rptr.2d 144 (1994) . . 314
532 P.2d 1226, 40 Cal. Comp. Cases 258 Lo v. Lee, 24 Cal.App.5th 1065, 234 Cal.Rptr.3d 824
(1975) . . . . . . . . . . . . . . . . . . 405, 406; 470 (2018) . . . . . . . . . . . . . . . . . . . 4200; 4207
Liberty Surplus Ins. Corp. v. Ledesma & Meyer Lobo v. Tamco, 182 Cal.App.4th 297, 105 Cal. Rptr. 3d
Construction Co., Inc., 5 Cal.5th 216, 233 Cal. Rptr. 718, 75 Cal. Comp. Cases 286 (2010). . . . . .3725
3d 487, 418 P.3d 400, 83 Cal. Comp. Cases 999 Lobo v. Tamco, 230 Cal.App.4th 438, 178 Cal.Rptr.3d
(2018). . . . . . . . . . . . . . . . . . . . . . . .426 515, 79 Cal. Comp. Cases 1401 (2014) . . . . . 3725
Lichtman v. Siemens Industry Inc., 16 Cal.App.5th 914, Local TV, LLC v. Superior Court, 3 Cal.App.5th 1, 206
224 Cal. Rptr. 3d 725 (2017) . . . . . . . 450C; 1120 Cal.Rptr.3d 884 (2016) . . . . . . . . . 1803; 1804A
Licudine v. Cedars-Sinai Medical Center, 3 Cal.App.5th
881, 208 Cal. Rptr. 3d 170 (2016) . . . . . . . 3903D
TC-39
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Lockton v. O’Rourke, 184 Cal.App.4th 1051, 109 Los Angeles County Metropolitan Transportation
Cal.Rptr.3d 392 (2010) . . . . . . . . . . . . 610, 611 Authority v. Continental Development Corp, 16
Loder v. City of Glendale, 14 Cal.4th 846, 59 Cal. Rptr. Cal.4th 694, 66 Cal.Rptr.2d 630, 941 P.2d 809
2d 696, 927 P.2d 1200 (1997) . . . . . . . . . . 3071 (1997) . . . . . . . . . . . 3500, 3501; 3511A, 3511B
Loehr v. Great Republic Insurance Co., 226 Cal.App.3d Los Angeles County Metropolitan Transportation
727, 276 Cal.Rptr. 667 (1990) . . . . . . . . . . 2307 Authority v. Yum Yum Donut Shops, Inc., 32
Logacz v. Limansky, 71 Cal.App.4th 1149, 84 Cal.App.5th 662, 244 Cal. Rptr. 3d 201 (2019) . 3513
Cal.Rptr.2d 257 (1999). . . . . . . . . . . . . . .431 Los Angeles, County of v. Superior Court, 21 Cal.4th
Lompoc Unified School Dist. v. Superior Court, 20 292, 87 Cal.Rptr.2d 441, 981 P.2d 68 (1999) . 3903Q
Cal.App.4th 1688, 26 Cal.Rptr.2d 122 (1993). .1007 Los Angeles, County of v. Superior Court, 68
Lona v. Citibank, N.A., 202 Cal.App.4th 89, 134 Cal.App.4th 1166, 80 Cal.Rptr.2d 860 (1998) . .3001
Cal.Rptr.3d 622 (2011) . . . . . . . . . . . . . . 4920 Los Angeles, County of v. Superior Court, 78
London Guarantee & Acci. Co. v. Las Lomitas School Cal.App.4th 212, 92 Cal.Rptr.2d 668 (2000) . . 1407
Dist., 191 Cal.App.2d 423, 12 Cal.Rptr. 598 Los Angeles Jewish Home for the Aging, Eisenberg
(1961) . . . . . . . . . . . . . . . . . . . . . . . 4532 Village of v. Suffolk Construction Company, Inc., 53
Lone Star Steel Co. v. McGee, 380 F.2d 640 (5th Cir. Cal.App.5th 1201, 268 Cal.Rptr.3d 334 (2020) . 4560
1967) . . . . . . . . . . . . . . . . . . . . . . . 2925 Los Angeles Unified Sch. Dist. v. Pulgarin, 175
Long v. Forty Niners Football Co, 33 Cal.App.5th 550, Cal.App.4th 101, 95 Cal.Rptr.3d 527 (2009) . . 3513
244 Cal.Rptr.3d 887 (2019) . . . . . . . . . . . . 457 Los Angeles Unified School Dist. v. Casasola, 187
Long Beach, City of v. Bozek, 31 Cal.3d 527, 183 Cal.App.4th 189, 114 Cal.Rptr.3d 318 (2010) . .3513
Cal.Rptr. 86, 645 P.2d 137 (1982) . . . . . . . . 1501 Los Angeles Unified School District v. Great American
Long Beach, City of v. Standard Oil Co., 872 F.2d 1401, Ins. Co., 49 Cal.4th 739, 112 Cal.Rptr.3d 230, 234
107 O.&G.R. 219, 1989-1 Trade Cas. (CCH) P68538 P.3d 490 (2010) . . . . . . . . . . . . . . 4500, 4501
(9th Cir. 1989) . . . . . . . . . . . . . . . . . . 3406 Los Angleles County v. Watson Land Co., 17 Cal.App.4th
Longfellow v. County of San Luis Obispo, 144 1268, 22 Cal.Rptr.2d 117 (1993). . . . . . . . .3510
Cal.App.3d 379, 192 Cal.Rptr. 580 (1983) . . . 1101 Losornio v. Motta, 67 Cal.App.4th 110, 78 Cal.Rptr.2d
Lonicki v. Sutter Health Central, 43 Cal.4th 201, 74 799 (1998). . . . . . .4300; 4303; 4305–4307; 4309
Cal.Rptr.3d 570, 180 P.3d 321 (2008) . . . . . . 2600 Love v. Fire Ins. Exchange, 221 Cal.App.3d 1136, 271
Lopez v. C.G.M. Development, Inc., 101 Cal.App.4th Cal.Rptr. 246 (1990) . . . . . . . . . . . .2330, 2331
430, 124 Cal.Rptr.2d 227, 67 Cal. Comp. Cases 1023 Low v. City of Sacramento, 7 Cal.App.3d 826, 87
(2002) . . . . . . . . . . . . . . . . . . . . . . . 2802 Cal.Rptr. 173 (1970) . . . . . . . . . . . . . . . 1101
Lopez v. City of Oxnard, 207 Cal.App.3d 1, 254 Cal.Rptr. Low v. Golden Eagle Ins. Co., 110 Cal.App.4th 1532, 2
556 (1989). . . . . . . . . . . . . . . . . . . . .1406 Cal.Rptr.3d 761 (2003) . . . . . . . . . . . . . . 2322
Lopez v. The Hillshire Brands Co., 41 Cal.App.5th 679, Lowe v. California League of Prof. Baseball, 56
254 Cal.Rptr.3d 377 (2019) . . . . . . . . . 430; 435 Cal.App.4th 112, 65 Cal.Rptr.2d 105
Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d (1997) . . . . . . . . . . . . . . . . . . . . . 470–472
780, 221 Cal.Rptr. 840, 710 P.2d 907 (1985) . . 902; Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.
908 1985) . . . . . . . . . . . . . . . . . . . . . . . 2502
Lopez v. Watchtower Bible & Tract Society of New York, Lowell v. Mother’s Cake and Cookie Co., 79 Cal.App.3d
Inc., 246 Cal.App.4th 566, 201 Cal.Rptr.3d 156 13, 144 Cal.Rptr. 664, 6 A.L.R.4th 184, 1978-1 Trade
(2016). . . . . . . . . . . . . . . . . . . . . . . .426 Cas. (CCH) P62003 (1978). . . . . . . . . . . .3407
Lopez, 41 Cal.App.5th 679, 254 Cal.Rptr.3d 377 . .430; Lowry v. City of San Diego, 858 F.3d 1248 (9th Cir.
435 2017) . . . . . . . . . . . . . . . . . . . . . . . 3020
Lopez, Estate of v. Gelhaus, 871 F.3d 998 (9th Cir. Lowry v. Standard Oil Co. of California, 63 Cal.App.2d
2017) . . . . . . . . . . . . . . . . . . . . . . . 3020 1, 146 P.2d 57 (1944). . . . . . . . . . . . . . .1301
Los Angeles v. Retlaw Enterprises, Inc., 16 Cal.3d 473, Lowry, 858 F.3d 1248 . . . . . . . . . . . . . . . . 3020
128 Cal.Rptr. 436, 546 P.2d 1380 (1976) . . . . 3517 Lucas v. Hamm, 56 Cal.2d 583, 15 Cal. Rptr. 821, 364
Los Angeles, City of v. Decker, 18 Cal.3d 860, 135 P.2d 685 (1961). . . . . . . . . . . . . . . .301; 602
Cal.Rptr. 647, 558 P.2d 545 (1977) . . . . . . . 3503 Lucas v. Southern Pacific Co., 19 Cal.App.3d 124, 96
Los Angeles, City of v. Tilem, 142 Cal.App.3d 694, 191 Cal.Rptr. 356 (1971) . . . . . . . . . . . . . . . . 806
Cal.Rptr. 229 (1983) . . . . . . . . . . . . . . 3509A
TC-40
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Luck v. Southern Pacific Transportation Co., 218 M.F. v. Pacific Pearl Hotel Management LLC, 16
Cal.App.3d 1, 267 Cal.Rptr. 618, 135 L.R.R.M. Cal.App.5th 693, 224 Cal. Rptr. 3d 542, 82 Cal.
(BNA) 2744 (1990) . . . . . . . . . . . . 2423, 2424 Comp. Cases 1304 (2017) . . . . . . . . . 2527, 2528
The Luckman Partnership, Inc. v. Superior Court, 184 M.F. Farming, Co. v. Couch Distributing Co., 207
Cal.App.4th 30, 108 Cal.Rptr.3d 606 (2010) . . 4550; Cal.App.4th 180, 143 Cal.Rptr.3d 160 (2012). .1730
4552 M.P. v. City of Sacramento, 177 Cal.App.4th 121, 98
Lueras v. BAC Home Loans Servicing, LP, 221 Cal.Rptr.3d 812 (2009) . . . . . . . . . . . . . . 3721
Cal.App.4th 49, 163 Cal.Rptr.3d 804 (2013) . . 4920 M.S., In re, 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d
Lueter v. State of California, 94 Cal.App.4th 1285, 115 1365 (1995) . . . . . . . . . . . . . . . . . . . . 3066
Cal.Rptr.2d 68 (2002). . . . . . . . . . . . . . .2102 Macedo v. Bosio, 86 Cal.App.4th 1044, 104 Cal.Rptr.2d
Lui v. City and County of San Francisco, 211 Cal.App.4th 1 (2001) . . . . . . . . . . . . . . . . . . . . . . 4208
962, 150 Cal.Rptr.3d 385 (2012). . . . . . . . .2543 MacIsaac & Menke Co. v. Cardox Corp., 193 Cal.App.2d
Lujan v. Gordon, 70 Cal.App.3d 260, 138 Cal.Rptr. 654 661, 14 Cal.Rptr. 523 (1961). . . . . . . . . . .4522
(1977) . . . . . . . . . . . . . . . . . . . . . . . 1500 Mack v. Soung, 80 Cal.App.4th 966, 95 Cal.Rptr.2d 830
Lukather v. General Motors, LLC, 181 Cal.App.4th 1041, (2000) . . . 3101; 3102A, 3102B; 3104; 3107; 3109,
104 Cal.Rptr.3d 853 (2010). . . . .3201; 3241; 3244 3110
Luna v. Vela, 169 Cal.App.4th 102, 86 Cal.Rptr.3d 588 Mackey v. Board of Trustees of California State
(2008) . . . . . . . . . . . . . . . . . . . . . 470–473 University, 31 Cal.App.5th 640, 242 Cal.Rptr.3d 757
Lunada Biomedical v. Nunez, 230 Cal.App.4th 459, 178 (2019) . . . . . . . . . . . . . . . . . . . 3000; 3060
Cal.Rptr.3d 784 (2014) . . . . . . . . . . . . . . 4710 Mackey v. Campbell Construction Co, 101 Cal.App.3d
Lundquist v. Reusser, 7 Cal.4th 1193, 31 Cal.Rptr.2d 776, 774, 162 Cal.Rptr. 64 (1980). . . . . . . . . . .3708
875 P.2d 1279 (1994) . 1700–1705; 1723; 1730, 1731 MacManus v. A. E. Realty Partners, 195 Cal.App.3d
Lundy v. Ford Motor Co., 87 Cal.App.4th 472, 104 1106, 241 Cal.Rptr. 315, 1987-2 Trade Cas. (CCH)
Cal.Rptr.2d 545 (2001) . . . . . . . . . . . . . . 3204 P67837 (1987) . . . . . . . . . . . . . . . . . . 3407
Lunghi v. Clark Equipment Co., Inc., 153 Cal.App.3d Madison v. Superior Court, 203 Cal.App.3d 589, 250
485, 200 Cal.Rptr. 387 (1984). . . . . . .1204; 1223 Cal.Rptr. 299 (1988) . . . . . . . . . . . . . . . . 451
Lupash v. City of Seal Beach, 75 Cal.App.4th 1428, 89 Maggio, Inc. v. Neal, 196 Cal.App.3d 745, 241 Cal.Rptr.
Cal.Rptr.2d 920 (1999). . . . . . . . . . . . . . .471 883 (1987) . . . . . . . . . . . . . . . . . . . . . 373
Luque v. McLean, 8 Cal.3d 136, 104 Cal.Rptr. 443, 501 Magic Carpet Ride LLC v. Rugger Investment Group,
P.2d 1163 (1972) . . . . . . . . . . . . . . . . . 1201 LLC, 41 Cal.App.5th 357, 254 Cal.Rptr.3d 213
Lussier v. San Lorenzo Valley Water Dist., 206 (2019). . . . . . . . . . . . . . . . . . . . . . . .312
Cal.App.3d 92, 253 Cal.Rptr. 470, 253 Cal. Rptr. 470 Maglica v. Maglica, 66 Cal.App.4th 442, 78 Cal.Rptr.2d
(1988) . . . . . . . . . . . . . . . . . . . . . . . 2021 101 (1998) . . . . . . . . . . . . . . . . . . . . . 305
Luthringer v. Moore, 31 Cal.2d 489, 190 P.2d 1 Magpali v. Farmers Group, Inc., 48 Cal.App.4th 471, 55
(1948). . . . . . . . . . . . . . . . . . . . . . . .460 Cal.Rptr.2d 225 (1996) . . . . . . . . . . . . . . 1902
Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. Mahan v. Charles W. Chan Ins. Agency, Inc., 12
2015) . . . . . . . . . . . . . . . . . . . . 3023; 3026 Cal.App.5th 442, 218 Cal.Rptr.3d 808 (2017). .3100
Lyle v. Warner Brothers Television Productions, 38 Maher v. County of Alameda, 223 Cal.App.4th 1340, 168
Cal.4th 264, 42 Cal.Rptr.3d 2, 132 P.3d 211 Cal.Rptr.3d 56 (2014) . . . . . . . . . . . . . . . 556
(2006) . . . . . . . . . . . . . 2521A, 2521B; 2522B Mailand v. Burckle, 20 Cal.3d 367, 143 Cal.Rptr. 1, 572
Lyles v. State of California, 153 Cal.App.4th 281, 62 P.2d 1142, 1978-1 Trade Cas. (CCH) P61818, 143 Cal.
Cal.Rptr.3d 696 (2007) . . . . . . . . . . . . . . 2030 Rptr. 1 (1978) . . . . . . . . . . . . . . . 3400; 3431
Lynch & Freytag v. Cooper, 218 Cal.App.3d 603, 267 Mains v. City Title Ins. Co., 34 Cal.2d 580, 212 P.2d 873
Cal.Rptr. 189 (1990) . . . . . . . . . . . . . . . 4303 (1949) . . . . . . . . . . . . . . . . . . 370–372; 374
Lynn v. Tatitlek Support Services, Inc., 8 Cal.App.5th Majd v. Bank of America, N.A., 243 Cal.App.4th 1293,
1096, 214 Cal. Rptr. 3d 449 (2017) . . . . . . . 3727 197 Cal.Rptr.3d 151 (2015) . . . . . . . . . . . 4920
Lyon v. Goss, 19 Cal.2d 659, 123 P.2d 11 (1942) . . 319 Major v. R.J. Reynolds Tobacco Co., 14 Cal.App.5th
Lysick v. Walcom, 258 Cal.App.2d 136, 65 Cal.Rptr. 406, 1179, 222 Cal. Rptr. 3d 563 (2017) . . . . . . . . 430
28 A.L.R.3d 368 (1968) . . . . . . . . . . . 219, 220 Major v. Western Home Ins. Co., 169 Cal.App.4th 1197,
87 Cal.Rptr.3d 556 (2009). . . . . . . . .2330, 2331
M Malais v. Los Angeles City Fire Dept., 150 Cal.App.4th
350, 58 Cal.Rptr.3d 444 (2007) . . . . . . . . . 2509
M.B., Conservatorship of, 27 Cal.App.5th 98, 237 Cal.
Rptr. 3d 775 (2018) . . . . . . . . . . . . 4002, 4003
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Maldonado, Conservatorship of, 173 Cal.App.3d 144, Marina Emergency Medical Group v. Superior Court, 84
218 Cal.Rptr. 796 (1985) . . . . . . . . . . . . .4005 Cal.App.4th 435, 100 Cal.Rptr.2d 866 (2000). .3929
Mallett v. Southern Pacific Co., 20 Cal.App.2d 500, 68 Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 180 Cal.
P.2d 281 (1937) . . . . . . . . . . . . . . . . . . 805 Rptr. 496, 640 P.2d 115 (1982) . . . . . . 3060; 4323
Malloy v. Fong, 37 Cal.2d 356, 232 P.2d 241 Maris v. H. Crummey, Inc., 55 Cal.App. 573, 204 P. 259
(1951). . . . . . . . . . . . . . . . . . . .3704, 3705 (1921) . . . . . . . . . . . . . . . . . . . . 112; 5019
Malone v. Perryman, 226 Cal.App.2d 227, 37 Cal.Rptr. Mariscal v. Old Republic Life Ins. Co., 42 Cal.App.4th
864 (1964) . . . . . . . . . . . . . . . . . . 411; 701 1617, 50 Cal.Rptr.2d 224 (1996). . . . . . . . .2332
Malone, In re, 12 Cal.4th 935, 50 Cal.Rptr.2d 281, 911 Mark Tanner Constr. v. Hub Internat. Ins. Servs., 224
P.2d 468 (1996) . . . . . . . . . . . . . . . . . .5009 Cal.App.4th 574, 169 Cal.Rptr.3d 39, 79 Cal. Comp.
Maloney v. Rath, 69 Cal. 2d 442, 71 Cal.Rptr. 897, 445 Cases 271 (2014) . . . . . . . . . . . . . 4100; 4120
P.2d 513, 40 A.L.R.3d 1 (1968) . . . . . . . . . 3713 Marketing West, Inc. v. Sanyo Fisher (USA) Corp., 6
Maloney v. Rhode Island Insurance Co., 115 Cal.App.2d Cal.App.4th 603, 7 Cal.Rptr.2d 859 (1992) . . . 1901
238, 251 P.2d 1027 (1953) . . . . . . . . . . . . 2307 Markow v. Rosner, 3 Cal.App.5th 1027, 208 Cal.Rptr.3d
Mamika v. Barca, 68 Cal.App.4th 487, 80 Cal.Rptr.2d 363 (2016) . . . . . . . . . . . . . . . . 3714; 3903A
175 (1998). . . . . . . . . . . . . . . . . . . . .2704 Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.,
Mamola v. State of California ex rel. Dept. of 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278
Transportation, 94 Cal.App.3d 781, 156 Cal.Rptr. 614 (1989) . . . . . . . . . . . . . . . . . . . . . . . 1620
(1979). . . . . . . . . . . . . . . . . . . .1100, 1101 Marquez v. City of Phoenix, 693 F.3d 1167 (9th Cir.
Mamou v. Trendwest Resorts, Inc., 165 Cal.App.4th 686, 2012) . . . . . . . . . . . . . . . . . . . . . . . 3020
81 Cal.Rptr.3d 406 (2008) . . . . . 2500; 2505; 2570 Marquez Knolls Property Owners Assn., Inc. v. Executive
Mangini v. Aerojet-General Corp., 12 Cal. 4th 1087, 51 Risk Indemnity, Inc., 153 Cal.App.4th 228, 62
Cal. Rptr. 2d 272, 912 P.2d 1220. . . . . . . .3903F Cal.Rptr.3d 510 (2007) . . . . . . . . . . . . . . 2303
Mangini v. Aerojet-General Corp., 230 Cal.App.3d 1125, Marsh v. Anesthesia Services Medical Group, Inc., 200
281 Cal. Rptr. 827 (1991) . . . . . 2020, 2021; 2030 Cal.App.4th 480, 132 Cal.Rptr.3d 660, 2012-1 Trade
Manhattan Cmty. Access Corp. v. Halleck, ___ U.S. ___, Cas. (CCH) P77902 (2011). . . . . . . . . . . .3413
139 S.Ct. 1921, 204 L.Ed.2d 405 (2019) . . . . 3000 Marsh v. Tilley Steel Co., 26 Cal.3d 486, 162 Cal.Rptr.
Mann v. Cracchiolo, 38 Cal.3d 18, 210 Cal.Rptr. 762, 694 320, 606 P.2d 355, 45 Cal. Comp. Cases 193
P.2d 1134 (1985) . . . . . . . . . . . . . . . . . . 501 (1980) . . . . . . . . . . . . . . . . 2923; 3706, 3707
Mann v. Cty. of San Diego, 907 F.3d 1154 (9th Cir. Marsh & McLennan of California, Inc. v. City of Los
2018) . . . . . . . . . . . . . . . . . . . . . . . 3051 Angeles, 62 Cal.App.3d 108, 132 Cal.Rptr. 796
(1976) . . . . . . . . . . . . . . . . . . . . . . . 2307
Mann v. Stanley, 141 Cal.App.2d 438, 296 P.2d 921
(1956). . . . . . . . . . . . . . . . . . . . . . . .462 Marshall v. Brown, 141 Cal.App.3d 408, 190 Cal.Rptr.
392 (1983). . . . . . . . . . . . . . . . . . . . .2711
Manney v. Housing Authority of The City of Richmond,
79 Cal.App.2d 453, 180 P.2d 69 (1947). . . . . .219 Marshall v. County of San Diego, 238 Cal.App.4th 1095,
190 Cal.Rptr.3d 97 (2015). . . . . . . . .3001; 3052
Mansfield; People v., 200 Cal.App.3d 82, 245 Cal.Rptr.
800 (1988). . . . . . . . . . . . . . . . . . . . .1300 Marshall v. International Longshoremen’s and
Warehousemen’s Union, 57 Cal.2d 781, 22 Cal.Rptr.
Mantonya v. Bratlie, 33 Cal.2d 120, 199 P.2d 677, 13 Cal.
211, 371 P.2d 987, 50 L.R.R.M. (BNA) 2519
Comp. Cases 285 (1948) . . . . . . . . . . . . . 3703
(1962) . . . . . . . . . . . . . . . . . . . . . . . 3711
Manuel v. City of Joliet, ___ U.S. ___, 137 S.Ct. 911, 197
Marshall v. United Airlines, 35 Cal.App.3d 84, 110
L.Ed.2d 312 (2017). . . . . . . . . . . . . . . .3052
Cal.Rptr. 416 (1973) . . . . . . . . . . . . . . . . 907
Marchica v. Long Island Railroad Co., 31 F.3d 1197 (2d
Martin v. County of Los Angeles, 51 Cal.App.4th 688, 59
Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 2941
Cal.Rptr.2d 303 (1996) . . . . . . . . . . . . . . 3800
Marez v. Bassett, 595 F.3d 1068 (9th Cir. 2010) . . 3050
Martin Marietta Corp. v. Insurance Co. of North America,
Margaret W. v. Kelley R., 139 Cal.App.4th 141, 42
40 Cal.App.4th 1113, 47 Cal.Rptr.2d 670
Cal.Rptr.3d 519 (2006) . . . . . . . . . . . . . . 1005
(1995). . . . . . . . . . . . . . . . . . . .2000, 2001
Marin County Bd. of Realtors v. Palsson, 16 Cal.3d 920,
Martine v. Heavenly Valley Limited Partnership, 27
130 Cal.Rptr. 1, 549 P.2d 833, 1976-1 Trade Cas.
Cal.App.5th 715, 238 Cal.Rptr.3d 237 (2018) . . 901
(CCH) P60898 (1976) . . . . . . . . . . . 3403, 3404
Martinez v. County of Los Angeles, 47 Cal.App.4th 334,
Marin, County of v. Assessment Appeals Bd. of Marin
54 Cal.Rptr.2d 772 (1996) . . . . . . . . . . . . 3000
County, 64 Cal.App.3d 319, 134 Cal.Rptr. 349
(1976). . . . . . . . . . . . . . . . . . . . . . . .317
TC-42
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Martinez v. County of Ventura, 225 Cal.App.4th 364, 169 Maxwell v. Colburn, 105 Cal.App.3d 180, 163 Cal.Rptr.
Cal.Rptr.3d 880 (2014) . . . . . . . . . . . . . . 1123 912 (1980) . . . . . . . . . . . . . . . . . . . . . 706
Martinez v. Kia Motors America, Inc., 193 Cal.App.4th Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir.
187, 122 Cal.Rptr.3d 497 (2011) . . . . . 3200, 3201 2013) . . . . . . . . . . . . . . . . . . . . . . . 3005
Martinez v. Robledo, 210 Cal.App.4th 384, 147 Maxwell v. Dolezal, 231 Cal.App.4th 93, 179 Cal.Rptr.3d
Cal.Rptr.3d 921 (2012) . . . . . . . . . . . . . 3903O 807 (2014). . . . . . . . . . . . . . . . . . . . .1803
Martinez v. State Dept. of Health Care Services, 19 Maxwell v. Powers, 22 Cal.App.4th 1596, 28 Cal.Rptr.2d
Cal.App.5th 370, 227 Cal.Rptr.3d 483 (2017).3903D 62 (1994) . . . . . . . . . . . . . . . . . . . . . 3929
Martinez v. Traubner, 32 Cal.3d 755, 187 Cal.Rptr. 251, May v. New York Motion Picture Corp., 45 Cal.App. 396,
653 P.2d 1046 (1982). . . . . . . . . . . . . . .4551 187 P. 785 (1920). . . . . . . . . . . . . . . . .2421
Martinez v. Vintage Petroleum, 68 Cal.App.4th 695, 80 Mayes v. Bryan, 139 Cal.App.4th 1075, 44 Cal.Rptr.3d
Cal. Rptr. 2d 449 (1998). . . . . . . . . . . . . .432 14 (2006) . . . . . . . . . . . . . . . . . . . . . . 430
Martinez, 32 Cal.3d 755, 187 Cal.Rptr. 251, 653 P.2d Mayhew v. Benninghoff, 53 Cal.App.4th 1365, 62
1046 . . . . . . . . . . . . . . . . . . . . . . . . 4551 Cal.Rptr.2d 27 (1997) . . . . . . . . . . . . . . . 320
Martinez, 210 Cal.App.4th 384, 147 Cal.Rptr.3d Mazik v. Geico General Ins. Co, 35 Cal.App.5th 455, 247
921. . . . . . . . . . . . . . . . . . . . . . . .3903O Cal.Rptr.3d 450 (2019) . . . . . . . . . . . . . . 2332
Martinez, 225 Cal.App.4th 364, 169 Cal.Rptr.3d McAlister; People v., 167 Cal.App.3d 633, 213 Cal.Rptr.
880. . . . . . . . . . . . . . . . . . . . . . . . .1123 271 (1985). . . . . . . . . . . . . . . . . .112; 5019
Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 McBride v. Atchison, Topeka & Santa Fe Ry. Co., 44
P.2d 106 (1976) . . . . . . . . . . . . . . . . . . 305 Cal.2d 113, 279 P.2d 966 (1955) . . . . . . . . . 904
Marvulli v. Elshire, 27 Cal.App.3d 180, 103 Cal.Rptr. 461 McBride v. Boughton, 123 Cal.App.4th 379, 20
(1972). . . . . . . . . . . . . . . . . . . . . . . .510 Cal.Rptr.3d 115 (2004) . . . . . . . . . . . . 370–374
Mary M. v. City of Los Angeles, 54 Cal.3d 202, 285 McBride v. Smith, 18 Cal.App.5th 1160, 227 Cal. Rptr.
Cal.Rptr. 99, 814 P.2d 1341 (1991).3701; 3720–3723 3d 390 (2018). . . . . . . . . . . .2000; 2021; 4901
Marzec v. Public Employees’ Retirement System, 236 McCalla v. Grosse, 42 Cal.App.2d 546, 109 P.2d 358
Cal.App.4th 889, 187 Cal.Rptr.3d 452 (2015). .4100 (1941). . . . . . . . . . . . . . . . . . . . . . . .720
Masellis v. Law Office of Leslie F. Jensen, 50 McCarty v. Department of Transportation, 164
Cal.App.5th 1077, 264 Cal.Rptr.3d 621 (2020). .601 Cal.App.4th 955, 79 Cal.Rptr.3d 777, 73 Cal. Comp.
Maslo v. Ameriprise Auto & Home Ins., 227 Cal.App.4th Cases 1036 (2008) . . . . . . . . . . . . . . . 1009B
626, 173 Cal.Rptr.3d 854 (2014) . . . . . 2330, 2331 McCarty v. Workmen’s Compensation Appeals Bd., 12
Massachusetts Mut. Life Ins. Co. v. Superior Court, 97 Cal.3d 677, 117 Cal.Rptr. 65, 527 P.2d 617, 33 Cal.
Cal.App.4th 1282, 119 Cal. Rptr. 2d 190 Comp. Cases 712, 39 Cal. Comp. Cases 712
(2002) . . . . . . . . . . . . . . . . . . . . . . . 4700 (1974) . . . . . . . . . . . . . . . . . . . . . . . 3724
Massey v. Mercy Med. Ctr. Redding, 180 Cal.App.4th McConnell v. Corona City Water Co., 149 Cal. 60, 85 P.
690, 103 Cal.Rptr.3d 209 (2009) . . . . . . . . . 504 929 (1906). . . . . . . . . . . . . . . . . . . . .4511
Masson v. New Yorker Magazine, 501 U.S. 496, 111 S.Ct. McCown v. Spencer, 8 Cal.App.3d 216, 87 Cal.Rptr. 213
2419, 115 L.Ed.2d 447 (1991) . . . . . . . . . . 1700 (1970) . . . . . . . . . . . . . . . . . . . . . 326, 327
Masterson v. Sine, 68 Cal.2d 222, 65 Cal.Rptr. 545, 436 McCoy v. Gustafson, 180 Cal.App.4th 56, 103
P.2d 561 (1968) . . . . . . . . . . . . . . . . . . 304 Cal.Rptr.3d 37 (2009). . . . . . . . . . . . . . .2030
Mathis v. Morrissey, 11 Cal.App.4th 332, 13 Cal.Rptr.2d McCoy v. Pacific Maritime Assn., 216 Cal.App.4th 283,
819 (1992). . . . . . . . . . . . . . . .532; 551–554 156 Cal. Rptr. 3d 851 (2013) . . 2505; 2521B, 2521C
Mattco Forge, Inc. v. Arthur Young & Co., 52 McCoy v. Progressive West Ins. Co., 171 Cal.App.4th
Cal.App.4th 820, 60 Cal.Rptr.2d 780 (1997) . . . 601 785, 90 Cal.Rptr.3d 74 (2009) . . . . . . . . . . 2331
Matthews v. Superior Court, 34 Cal.App.4th 598, 40 McDaniel v. Gile, 230 Cal.App.3d 363, 281 Cal.Rptr. 242
Cal.Rptr.2d 350 (1995) . . . . . . . . . . . . . . 2525 (1991) . . . . . . . . . . . . . . . . . . . . . . . 1602
Mattos v. Mattos, 162 Cal.App.2d 41, 328 P.2d 269 McDaniel v. Sunset Manor Co, 220 Cal.App.3d 1, 269
(1958) . . . . . . . . . . . . . . . . . . . . . . . 2021 Cal.Rptr. 196 (1990) . . . . . . . . . . . . . . . . 412
Mau v. Hollywood Commercial Bldgs., Inc., 194 McDonald v. Antelope Valley Community College Dist.,
Cal.App.2d 459, 15 Cal.Rptr. 181 (1961) . . . . 4327 45 Cal.4th 88, 84 Cal. Rptr. 3d 734, 194 P.3d 1026
Maupin v. Widling, 192 Cal.App.3d 568, 237 Cal.Rptr. (2008). . . . . . . . . . . . . . . . . . . . . . . .457
521 (1987) . . . . . . . . . . . . . . . . . . . . . 432 McDonald v. City of Oakland, 255 Cal.App.2d 816, 63
Maureen K. v. Tuschka, 215 Cal.App.4th 519, 155 Cal.Rptr. 593 (1967) . . . . . . . . . . . . . . . . 414
Cal.Rptr.3d 620 (2013) . . . . . . . . . . . . . . 3060
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
McDonald v. S. Pac. Transp. Co., 71 Cal.App.4th 256, 83 McMillin Albany LLC v. Superior Court, 4 Cal.5th 241,
Cal.Rptr.2d 734 (1999) . . . . . . . . . . . . . . 5009 227 Cal. Rptr. 3d 191, 408 P.3d 797 (2018) . . 4510;
McDonald v. Santa Fe Trail Transp. Co, 427 U.S. 273, 96 4550, 4551; 4570, 4571; 4573
S.Ct. 2574, 49 L.Ed.2d 493 (1976) . . . . . . . 2507 McNary v. Hanley, 131 Cal.App. 188, 20 P.2d 966
McDonald v. Shell Oil Co., 44 Cal.2d 785, 285 P.2d 902 (1933) . . . . . . . . . . . . . . . . . . . . . . . 3930
(1955) . . . . . . . . . . . . . . . . . . . . . . . 3704 McNeal v. Greenberg, 40 Cal.2d 740, 255 P.2d 810
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 (1953) . . . . . . . . . . . . . . . . . . . . . . . 1224
S.Ct. 1817, 36 L.Ed. 2d 668 (1973) . . . 2500; 2540; McNulty v. Copp, 125 Cal.App.2d 697, 271 P.2d 90
2570 (1954) . . . . . . . . . . . . . . . . . . . . . . . 3935
McGarry v. Sax, 158 Cal.App.4th 983, 70 Cal. Rptr. 3d McOwen v. Grossman, 153 Cal.App.4th 937, 63
519 (2008) . . . . . . . . . . . . . . . . . . . . . 470 Cal.Rptr.3d 615 (2007). . . . . . . . . . . . . . .455
McGettigan v. Bay Area Rapid Transit Dist., 57 McVeigh v. Recology San Francisco, 213 Cal.App.4th
Cal.App.4th 1011, 67 Cal.Rptr.2d 516 (1997) . . 907 443, 152 Cal.Rptr.3d 595 (2013) . . . . . 4600; 4603
McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. Mealy v. B-Mobile, Inc., 195 Cal.App. 4th 1218, 124
2004) . . . . . . . . . . . . . . . . . . . . . . 2521A Cal.Rptr.3d 804 (2011) . . . . . . . . . . . . . . 3920
McGrory v. Applied Signal Technology, Inc., 212 Meddock v. County of Yolo, 220 Cal.App.4th 170, 162
Cal.App.4th 1510, 152 Cal.Rptr.3d 154 (2013).1723; Cal.Rptr.3d 796 (2013) . . . . . . . . . . . . . . 1110
2505; 2511 Meeks v. AutoZone, Inc., 24 Cal.App.5th 855, 235
McGuire v. W. A. Thompson Distributing Co., 215 Cal.Rptr.3d 161 (2018) . . . . . . . . . 2509; 2521A
Cal.App.2d 356, 30 Cal.Rptr. 113 (1963) . . . . 5011 Mehrtash v. Mehrtash, 93 Cal.App.4th 75, 112
McIvor v. Mercer-Fraser Co., 76 Cal.App.2d 247, 172 Cal.Rptr.2d 802 (2001) . . . . . . . 4200; 4202, 4203
P.2d 758 (1946) . . . . . . . . . . . . . . 2020, 2021 Meier v. Ross General Hospital, 69 Cal.2d 420, 71
McKay; People v., 27 Cal.4th 601, 117 Cal.Rptr.2d 236, Cal.Rptr. 903, 445 P.2d 519 (1968) . . . . . 506; 515
41 P.3d 59 (2002). . . . . . . . . . . . . . . . .3020 Meister v. Mensinger, 230 Cal.App.4th 381, 178
McKee v. National Union Fire Insurance Co. of Cal.Rptr.3d 604 (2014) . . . . . . 3900; 3903N; 4100
Pittsburgh, PA., 15 Cal.App.4th 282, 19 Cal.Rptr.2d Mejia v. Community Hospital of San Bernardino, 99
286 (1993). . . . . . . . . . . . . . . . . . . . .2360 Cal.App.4th 1448, 122 Cal.Rptr.2d 233 (2002) . 3714
McKelvey v. Boeing North Am. Inc., 74 Cal.App.4th 151, Mejia v. Reed, 31 Cal.4th 657, 3 Cal.Rptr.3d 390, 74 P.3d
86 Cal.Rptr.2d 645 (1999) . . . . . . . . . . . . 1722 166 (2003). . . . . . . . . . . . . .4200; 4202–4205
McKennon v. Nashville Banner Publishing Co., 513 U.S. Melaleuca, Inc. v. Clark, 66 Cal.App.4th 1344, 78
352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) . . 2506 Cal.Rptr.2d 627 (1998) . . . . . . . . . . 1700; 1731
McKenzie v. Pacific Gas & Electric Co., 200 Cal.App.2d Melorich Builders, Inc. v. Superior Court, 160
731, 19 Cal.Rptr. 628 (1962) . . . . . . . . . . . 416 Cal.App.3d 931, 207 Cal.Rptr. 47 (1984) . . . . 2335
McKeown, Conservatorship of, 25 Cal.App.4th 502, 30 Melton v. Boustred, 183 Cal. App. 4th 521, 107 Cal. Rptr.
Cal.Rptr.2d 542 (1994). . . . . . . . . . . . . . .219 3d 481 (2010). . . . . . . . . . . . . . . . . . .2020
McKinney v. County of Santa Clara, 110 Cal.App.3d 787, Melvin v. Reid, 112 Cal.App. 285, 297 P. 91
168 Cal.Rptr. 89 (1980) . . . . . . . . . . . . . 1708 (1931) . . . . . . . . . . . . . . . . . . . . . . . 1800
McKinney v. Nash, 120 Cal.App.3d 428, 174 Cal.Rptr. Menchaca v. Helms Bakeries, Inc., 68 Cal.2d 535, 67
642 (1981) . . . . . . . . . . . . . . . . . . . . . 532 Cal.Rptr. 775, 439 P.2d 903 (1968) . . . . . 414; 710
McKinney v. Revlon, Inc., 2 Cal.App.4th 602, 3 Mendez v. Cty. of L.A., 897 F.3d 1067 (9th Cir.
Cal.Rptr.2d 72 (1992). . . . . . . . . . . . . . .1206 2018) . . . . . . . . . . . . . . . . . . . . 3000; 3023
McKown v. Wal-Mart Stores, Inc., 27 Cal.4th 219, 115 Mendez v. Rancho Valencia Resort Partners, LLC, 3
Cal.Rptr.2d 868, 38 P.3d 1094, 67 Cal. Comp. Cases Cal.App.5th 248, 207 Cal. Rptr. 3d 532 (2016) . 2021
36 (2002) . . . . . . . . . . . . . . . . . . . . 1009D Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833,
McLean v. State of California, 1 Cal. 5th 615, 206 Cal. 182 Cal. Rptr. 3d 124, 340 P.3d 355
Rptr. 3d 545, 377 P.3d 796 (2016). . . . . . . .2704 (2015). . . . . . . . . . . . . . . . . . . .2700–2702
McLear-Gary v. Scott, 25 Cal.App.5th 145, 235 Mendiola-Martinez v. Arpaio, 836 F.3d 1239 (9th Cir.
Cal.Rptr.3d 443 (2018) . . . . . . . . . . 4900, 4901 2016) . . . . . . . . . . . . . . . . . . . . 3040–3043
McMahan’s of Santa Monica v. City of Santa Monica, Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d
146 Cal.App.3d 683, 194 Cal.Rptr. 582 (1983) . 3507 1283 (9th Cir. 1999) . . . . . . . . . . . . . . . 3050
McMahon v. Craig, 176 Cal.App.4th 1502, 97 Mendoza v. City of Los Angeles, 66 Cal.App.4th 1333,
Cal.Rptr.3d 555 (2009) . . . . . 1620; 3903L; 3903O 78 Cal.Rptr.2d 525 (1998) . . . . . . . . . . . . .426
McMartin v. Children’s Institute International, 212
Cal.App.3d 1393, 261 Cal.Rptr. 437 (1989). . .3600
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Mendoza v. City of West Covina, 206 Cal.App.4th 702, Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77
141 Cal.Rptr.3d 553 (2012). . . . . . . . .440; 3020 L.Ed.2d 1201 (1983) . . . . . . . . . . . . . . . 3024
Mendoza v. Western Medical Center Santa Ana, 222 Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59,
Cal.App.4th 1334, 166 Cal.Rptr.3d 720 (2014) . 2430 33 S.Ct. 192, 57 L.Ed. 417 (1913). . . . . . . .2942
Menges v. Dept. of Transportation, 59 Cal.App.5th 13, Midgley v. S. S. Kresge Co., 55 Cal.App.3d 67, 127
273 Cal.Rptr.3d 231 (2020). . . . . . . . . . . .1123 Cal.Rptr. 217 (1976) . . . . . . . . . . . . . . . 1205
Merced County Mutual Fire Insurance Co. v. State of Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317,
California, 233 Cal.App.3d 765, 284 Cal.Rptr. 680 112 L.Ed.2d 275 (1990) . . . . . . . . . . 2941, 2942
(1991) . . . . . . . . . . . . . . . . . . . . . 330, 331 Miles v. Deutsche Bank National Trust Co., 236
Merced County Sheriff’s Employees’ Assn. v. County of Cal.App.4th 394, 186 Cal.Rptr.3d 625 (2015). .4920
Merced, 188 Cal.App.3d 662, 233 Cal.Rptr. 519, 124 Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L.Ed.2d
L.R.R.M. (BNA) 3093 (1987) . . . . . . . . . . . 302 1, 110 S.Ct. 2695 (1990) . . . . . . . . . . . . . 1707
Merced Irrigation Dist. v. Woolstenhulme, 4 Cal.3d 478, Miller v. American Greetings Corp., 161 Cal.App.4th
93 Cal.Rptr. 833, 483 P.2d 1 (1971) . . . 3504; 3517 1055, 74 Cal.Rptr.3d 776 (2008). . . . . . . . .3723
Merchant Shippers Association v. Kellogg Express and Miller v. American Home Assurance Co., 47 Cal.App.4th
Draying Co., 28 Cal.2d 594, 170 P.2d 923 844, 54 Cal.Rptr.2d 765, 61 Cal. Comp. Cases 677
(1946) . . . . . . . . . . . . . . . . . . . . . . 3903J (1996) . . . . . . . . . . . . . . . . . . . . . . . 2360
Merfeld; People v., 57 Cal.App.4th 1440, 67 Cal.Rptr.2d Miller v. Brown, 136 Cal.App.2d 763, 289 P.2d 572
759 . . . . . . . . . . . . . . . . . . . . . . . . . 216 (1955) . . . . . . . . . . . . . . . . . . . . . . . 4522
Merlet v. Rizzo, 64 Cal.App.4th 53, 75 Cal.Rptr.2d 83 Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988,
(1998) . . . . . . . . . . . . . . . . . . . . . . . 1501 72 Cal.Rptr.3d 194 (2008) . . . . . . . 1804A, 1804B
Mero v. Sadoff, 31 Cal.App.4th 1466, 37 Cal.Rptr.2d 769, Miller v. Department of Corr., 36 Cal.4th 446, 30
60 Cal. Comp. Cases 7 (1995). . . . . . . . . . .500 Cal.Rptr.3d 797, 115 P.3d 77 (2005) . . 2505; 2521C;
Metcalf v. County of San Joaquin, 42 Cal.4th 1121, 72 2522C; 2524
Cal.Rptr.3d 382, 176 P.3d 654 (2008) . . 1100; 1111, Miller v. Fortune Commercial Corp., 15 Cal.App.5th 214,
1112 223 Cal.Rptr.3d 133 (2017) . . . . . . . . . . . 3060
Metowski v. Traid Corp., 28 Cal.App.3d 332, 104 Miller v. National Broadcasting Co., 187 Cal.App.3d
Cal.Rptr. 599 (1972) . . . . . . . . . . . . . . . 1243 1463, 232 Cal.Rptr. 668, 69 A.L.R.4th 1027
Metropolitan Water Dist. of So. California v. Campus (1986) . . . . . . . . . 1800; 1820; 2000; 2002; 2004
Crusade for Christ, Inc., 41 Cal. 4th 954, 62 Cal. Rptr. Miller, 36 Cal.4th 446, 30 Cal.Rptr.3d 797, 115 P.3d
3d 623, 161 P.3d 1175, 41 Cal.4th 954 (2007) . 3503; 77 . . . . . . . . . . . . . . . . . . . . 2521C; 2522C
3509B; 3511A, 3511B Miller, 187 Cal.App.3d 1463, 232 Cal.Rptr. 668. .1820;
Mettelka v. Superior Court, 173 Cal.App.3d 1245, 219 2000; 2004
Cal.Rptr. 697 (1985) . . . . . . . . . . . . . . . . 724 Miller & Lux, Inc. v. Pinelli, 84 Cal.App. 42, 257 P. 573
Mexia v. Rinker Boat Co., Inc., 174 Cal.App.4th 1297, 95 (1927). . . . . . . . . . . . . . . . . . . . . . .3903I
Cal.Rptr.3d 285 (2009) . . . . . . . 3210; 3212; 3222 Miller; People v., 171 Cal. 649, 154 P. 468 (1916) . 200
Mexicali Rose v. Superior Court, 1 Cal.4th 617, 4 Minnegren v. Nozar, 4 Cal.App.5th 500, 208 Cal.Rptr.3d
Cal.Rptr.2d 145, 822 P.2d 1292 (1992) . . . . . 1233 655 (2016) . . . . . . . . . . . . . . . . . . . . . 701
Meyer v. Benko, 55 Cal.App.3d 937, 127 Cal.Rptr. 846 Minor v. Baldridge, 123 Cal. 187, 55 P. 783 (1898).370
(1976). . . . . . . . . . . . . . . . . . . . . . . .330
Mirkin v. Wasserman, 5 Cal.4th 1082, 23 Cal.Rptr.2d
Meyer v. Pacific Employers Insurance Co., 233 101, 858 P.2d 568 (1993). . . . . .1901; 1907; 4700
Cal.App.2d 321, 43 Cal.Rptr. 542 (1965). . . .2000;
Mitchell v. Blue Bird Body Co., 80 Cal.App.4th 32, 95
2002; 2004
Cal.Rptr.2d 81 (2000). . . . . . . . . . . . . . .3241
Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634, 88
Mitchell v. Ceazan Tires, Ltd., 25 Cal.2d 45, 153 P.2d 53
Cal.Rptr.3d 859, 200 P.3d 295 (2009) . . . . . . 4701
(1944). . . . . . . . . . . . . . . . . . . . . . . .300
Michael E., In re, 15 Cal.3d 183, 538 P.2d 231, 123
Mitchell v. Clarke, 71 Cal. 163, 11 P. 882 (1886) . . 351
Cal.Rptr. 103 (1975) . . . . . . . . . . . . . . . 4008
Mitchell v. Gonzales, 54 Cal.3d 1041, 1 Cal.Rptr.2d 913,
Michel v. Moore & Associates, Inc., 156 Cal.App.4th
819 P.2d 872 (1991) . . . . . . . . . . . . . . . . 430
756, 67 Cal.Rptr.3d 797 (2007). . .4107, 4108; 4111
Mitchell v. State Dept. of Public Health, 1 Cal.App.5th
Michelson v. Hamada, 29 Cal.App.4th 1566, 36
1000, 205 Cal.Rptr.3d 261 (2016). . . . . . . . .457
Cal.Rptr.2d 343 (1994) . . . . . . . 3705; 3935; 4101
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Mixon v. Fair Employment and Housing Com., 192 Moore v. Preventive Medicine Medical Group, Inc., 178
Cal.App.3d 1306, 237 Cal.Rptr. 884 (1987) . . 2500; Cal.App.3d 728, 223 Cal.Rptr. 859 (1986) . 534, 535
2507 Moore v. Regents of Univ. of Cal., 51 Cal.3d 120, 271
Mixon v. Pacific Gas & Electric Co., 207 Cal.App.4th Cal.Rptr. 146, 793 P.2d 479, 15 U.S.P.Q.2d 1753
124, 142 Cal.Rptr.3d 633 (2012) . . 1102; 1120, 1121 (1990) . . . . . . . . . . . . . . . . . . . . 532; 2100
Mixon, 192 Cal.App.3d 1306, 237 Cal.Rptr. 884 . 2500; Moore v. Regents of University of California, 248
2507 Cal.App.4th 216, 206 Cal.Rptr.3d 841 (2016) . 2505;
Mize v. Mentor Worldwide LLC, 51 Cal.App.5th 850, 2540, 2541; 2546; 2600; 2602; 2620
265 Cal.Rptr.3d 468 (2020) . . . . . . . . . . . 1205 Moore v. Wal-Mart Stores, Inc., 111 Cal.App.4th 472, 3
Mize-Kurzman v. Marin Community College Dist., 202 Cal.Rptr. 3d 813 (2003) . . . . . . . . . . . . . 1003
Cal.App.4th 832, 136 Cal.Rptr.3d 259 (2012) . 3923; Moore v. Wells Fargo Bank, N.A., 39 Cal.App.5th 280,
3962; 4603 251 Cal.Rptr.3d 779 (2019) . . . . . . . . . . . . 325
Mocek v. Alfa Leisure, Inc., 114 Cal.App.4th 402, 7 Moore v. William Jessup University, 243 Cal.App.4th
Cal.Rptr.3d 546 (2003) . . . . . . . . . . . . . . 3202 427, 197 Cal.Rptr.3d 51, 81 Cal. Comp. Cases 31
Mock v. Mich. Millers Mut. Ins. Co., 4 Cal.App.4th 306, (2015). . . . . . . . . . . . . . . . . . . . . . . .473
5 Cal.Rptr.2d 594 (1992) . . . . . . . . . 1623; 2335 Moore, In re Estate of, 180 Cal. 570, 182 P. 285
Modacure v. B&B Vehicle Processing, Inc., 30 (1919). . . . . . . . . . . . . . . . . . . . . . . .204
Cal.App.5th 690, 241 Cal. Rptr. 3d 761 (2018) . 3000 Moorpark, City of v. Moorpark Unified School Dist., 54
Modisette v. Apple Inc., 30 Cal.App.5th 136, 241 Cal.3d 921, 1 Cal.Rptr.2d 896, 819 P.2d 854
Cal.Rptr.3d 209 (2018). . . . . . . . . . . . . . .430 (1991). . . . . . . . . . . . . . . . . . . . . . . .307
Moffett v. Barclay, 32 Cal.App.4th 980, 38 Cal.Rptr.2d Mora v. Baker Commodities, Inc., 210 Cal.App.3d 771,
546 (1995) . . . . . . . . . . . . . . . . . . . . . 308 258 Cal.Rptr. 669 (1989) . . . . . . . . . . . . .1006
Mogilefsky v. Superior Court, 20 Cal.App.4th 1409, 26 Mora v. Hollywood Bed & Spring, 164 Cal.App.4th
Cal.Rptr.2d 116 (1993) . . . . . . . . . . . . . . 2520 1061, 79 Cal.Rptr.3d 640 (2008). . . . . . . . .2804
Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, Moradi v. Marsh USA, Inc., 219 Cal.App.4th 886, 162
167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518 Cal.Rptr.3d 280, 78 Cal. Comp. Cases 916
(1980) . . . . . . . . . . . . . . . . 1620–1623; 3920 (2013) . . . . . . . . . . . . . . . . 3723; 3725, 3726
Molko v. Holy Spirit Ass’n, 46 Cal.3d 1092, 252 Moradi-Shalal v. Fireman’s Fund Ins. Companies, 46
Cal.Rptr. 122, 762 P.2d 46 (1988) . . . . . . . . 1602 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58
Monarch v. Southern Pacific Transportation Co., 70 (1988) . . . . . . . . . . . . . . . . . . . . . . . 2337
Cal.App.4th 1197, 83 Cal.Rptr.2d 247 (1999) . 2900; Morales-Simental v. Genentech, Inc., 16 Cal.App.5th
2922 445, 224 Cal.Rptr.3d 319, 82 Cal. Comp. Cases 1146,
Moncada v. West Coast Quartz Corp., 221 Cal.App.4th 224 Cal. Rptr. 3d 319 (2017). . . . . . . . . . .3726
768, 164 Cal.Rptr.3d 601 (2013) . . . . . . . . . 302 Moran v. Foster Wheeler Energy Corp., 246 Cal.App.4th
Monell v. Dept. of Social Services of New York, 436 U.S. 500, 200 Cal.Rptr.3d 902 (2016). . . . . . . . .1244
658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) . . . 3001 Moran v. Prime Healthcare Management, Inc., 3
Monessen Southwestern Railway Co. v. Morgan, 486 Cal.App.5th 1131, 208 Cal. Rptr. 3d 303
U.S. 330, 108 S.Ct. 1837, 100 L.Ed.2d 349 (2016) . . . . . . . . . . . . . . . . . . . . . . . 4700
(1988) . . . . . . . . . . . . . . . . . . . . . . . 2941 Moreno v. Fey Manufacturing Corp., 149 Cal.App.3d 23,
Monster Energy Co. v. Schechter, 7 Cal.5th 781, 249 196 Cal.Rptr. 487 (1983) . . . . . . . . . . . . .1204
Cal.Rptr.3d 295, 444 P.3d 97 (2019). . . . .300; 302 Moreno v. Greenwood Auto Center, 91 Cal.App.4th 201,
Monster, LLC v. Superior Court, 12 Cal.App.5th 1214, 110 Cal.Rptr.2d 177 (2001). . . . . . . . . . . .2102
219 Cal.Rptr.3d 814 (2017) . . . . . . . . . . . . 350 Moreno v. Hanford Sentinel, Inc., 172 Cal.App.4th 1125,
Montague v. AMN Healthcare, Inc., 223 Cal.App.4th 91 Cal.Rptr.3d 858 (2009) . . . . . . . . . . . . 1801
1515, 168 Cal.Rptr.3d 123, 79 Cal. Comp. Cases 388 Moreno v. Sayre, 162 Cal.App.3d 116, 208 Cal.Rptr. 444
(2014) . . . . . . . . . . . . . . . . . . . 3707; 3722 (1984) . . . . . . . . . . . . . . . . . . . . .217; 222
Montana v. San Jose Mercury News, 34 Cal.App.4th 790, Moreno v. Visser Ranch, Inc., 30 Cal.App.5th 568, 241
40 Cal.Rptr.2d 639, 35 U.S.P.Q.2d (BNA) 1783 Cal. Rptr. 3d 678 (2018). . . . . . . . . .3720; 3725
(1995) . . . . . . . . . . . . . . . 1803; 1804B; 1806 Moreno, 172 Cal.App.4th 1125, 91 Cal.Rptr.3d
Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017) . . . 3053 858. . . . . . . . . . . . . . . . . . . . . . . . .1801
Moore v. City of Torrance, 101 Cal.App.3d 66, 166 Morgan v. AT&T Wireless Services, Inc., 99 Cal.Rptr.3d
Cal.Rptr. 192 (1979) . . . . . . . . . . . . . . . 1010 768, 177 Cal. App. 4th 1235 . . . . . . . . . . . 4701
Moore v. Mercer, 4 Cal.App.5th 424, 209 Cal. Rptr. 3d Morgan v. Regents of University of California, 88
101 (2016). . . . . . . . . . . . . . . . . . . .3903A Cal.App.4th 52, 105 Cal.Rptr.2d 652 (2000) . . 2508
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Morillion v. Royal Packing Co., 22 Cal.4th 575, 94 Mulligan v. Nichols, 835 F.3d 983 (9th Cir. 2016) . 440
Cal.Rptr.2d 3, 995 P.2d 139 (2000) . . . . . . . 2700 Mullins v. Rockwell Internat. Corp., 15 Cal.4th 731, 63
Morin v. County of Los Angeles, 215 Cal.App.3d 184, Cal.Rptr.2d 636, 936 P.2d 1246 (1997) . . . . . 2510
263 Cal.Rptr. 479 (1989) . . . . . . . . . . . . . 1110 Munger v. Moore, 11 Cal.App.3d 1, 89 Cal.Rptr. 323
Morlife, Inc. v. Perry, 56 Cal.App.4th 1514, 66 Cal.Rptr. (1970) . . . . . . . . . . . . . . . . . . . . . . . 2100
2d 731, 45 U.S.P.Q.2d 1741 (1997) . . . 4402; 4406, Munoz v. Olin, 24 Cal.3d 629, 156 Cal.Rptr. 727, 596
4407; 4412; 4420 P.2d 1143 (1979) . . . . . . . . . . . . . . . 440, 441
Morris v. Frudenfeld, 135 Cal.App.3d 23, 185 Cal.Rptr. Munson v. Del Taco, Inc., 46 Cal.4th 661, 94 Cal.Rptr.3d
76 (1982) . . . . . . . . . . . . . . . . . . . . . . 511 685, 208 P.3d 623 (2009). . . . . .3060, 3061; 3070
Morrison v. Rudolph, 103 Cal.App.4th 506, 126 Murillo v. Good Samaritan Hospital, 99 Cal.App.3d 50,
Cal.Rptr.2d 747 (2002) . . . . . . . . . . . . . . 1511 160 Cal.Rptr. 33 (1979) . . . . . . . . . . . . . . 514
Morrison v. Viacom, Inc., 52 Cal.App.4th 1514, 61 Murillo v. Rite Stuff Foods, Inc., 65 Cal.App.4th 833, 77
Cal.Rptr.2d 544, 1997-2 Trade Cas. (CCH) P71886 Cal.Rptr.2d 12 (1998). . . . . . . . . . . . . . .2506
(1997). . . . . . . . . . . . . . . . . . . .3420, 3421 Murphy, Conservatorship of, 134 Cal.App.3d 15, 184
Morrison v. Viacom, Inc., 66 Cal.App.4th 534, 78 Cal.Rptr. 363 (1982) . . . . . . . . . . . . . . . 4002
Cal.Rptr.2d 133, 1998-2 Trade Cas. (CCH) P72270 Murray’s Iron Works, Inc. v. Boyce, 158 Cal.App.4th
(1998) . . . . . . . . . . . . . . . . . . . . . . . 3423 1279, 71 Cal.Rptr.3d 317 (2008) . . . . . . 312; 4524
Mortensen v. Southern Pacific Co., 245 Cal.App.2d 241, Music Acceptance Corp. v. Lofing, 32 Cal.App.4th 610,
53 Cal.Rptr. 851, 31 Cal. Comp. Cases 511 39 Cal.Rptr.2d 159 (1995) . 3210, 3211; 3221; 3240,
(1966) . . . . . . . . . . . . . . . . . . . . . . . 2901 3241
Morton v. Owens-Corning Fiberglas Corp., 33 Muzquiz v. City of Emeryville, 79 Cal.App.4th 1106, 94
Cal.App.4th 1529, 40 Cal.Rptr.2d 22 (1995) . . 1203 Cal.Rptr.2d 579 (2000) . . . . . . . . . . . . . . 2570
Morton v. Rank Am., Inc., 812 F.Supp. 1062, 27 Myers v. Missouri Pacific Railroad Co., 52 P.3d 1014,
U.S.P.Q.2d 1344, 1993-1 Trade Cas. (CCH) P70269 2002 OK 60 (Okla. 2002) . . . . . . . . . . . . . 804
(C.D. Cal. 1993) . . . . . . . . . . . . . . . . . 4407
Myers v. Quesenberry, 144 Cal.App.3d 888, 193
Mosesian v. McClatchy Newspapers, 233 Cal.App.3d Cal.Rptr. 733 (1983) . . . . . . . . . . . . . . . . 507
1685, 285 Cal.Rptr. 430 (1991) . . . . . . . . . 1700
Myers v. Stephens, 233 Cal.App.2d 104, 43 Cal.Rptr. 420
Mosier v. Southern California Physicians Insurance (1965) . . . . . . . . . . . . . . . . . . . . . . . 2102
Exchange, 63 Cal.App.4th 1022, 74 Cal.Rptr.2d 550
Myers v. Trendwest Resorts, Inc., 148 Cal.App.4th 1403,
(1998) . . . . . . . . . . . . . . . . . . . . . . . 3600
56 Cal.Rptr.3d 501 (2007) . . . . . . . 2521A–2521C
Mosk v. Summerland Spiritualist Asso, 225 Cal.App.2d
Myers Building Industries, Ltd. v. Interface Technology,
376, 37 Cal.Rptr. 366 (1964). . . . . . . . . . .4900
Inc., 13 Cal.App.4th 949, 17 Cal.Rptr.2d 242
Moss v. Duncan, 36 Cal.App.5th 569, 248 Cal.Rptr.3d (1993) . . . . . . . . . 3924; 3940; 3943; 3945; 3947
689 (2019) . . . . . . . . . . . . . . . . . . . . . 454
Myrick v. Mastagni, 185 Cal.App.4th 1082, 111
Moua v. Pittullo, Howington, Barker, Abernathy, LLP, Cal.Rptr.3d 165 (2010) . . . . . . . . . . . 406; 3712
228 Cal.App.4th 107, 174 Cal.Rptr.3d 662
(2014). . . . . . . . . . . . . . . . . . . . . . . .600
N
Mount Vernon Fire Ins. Co. v. Busby, 219 Cal.App.4th
876, 162 Cal.Rptr.3d 211 (2013). . . . . . . . .1300 N. 7th St. Assocs. v. Constante, 92 Cal.App.4th Supp. 7,
Mountain Air Enterprises, LLC v. Sundowner Towers, 111 Cal.Rptr.2d 815 (2001). . . . . . . . . . . .4320
LLC, 3 Cal.5th 744, 220 Cal.Rptr.3d 650, 398 P.3d Nadaf-Rahrov v. The Neiman Marcus Group, Inc., 166
556 (2017). . . . . . . . . . . . . . . . . . . . .4901 Cal.App.4th 952, 83 Cal.Rptr.3d 190
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 (2008). . . . . . . . . . .2540–2542; 2546; VF-2513
U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).3053 Naegele v. R.J. Reynolds Tobacco Co., 28 Cal.4th 856,
Mucci v. Winter, 103 Cal.App.2d 627, 230 P.2d 22 123 Cal.Rptr.2d 61, 50 P.3d 769 (2002) . . . . . 1248
(1951). . . . . . . . . . . . . . . . . . . . . . . .720 Naffe v. Frey, 789 F.3d 1030 (9th Cir. 2015) . . . . 3000
Mudrick v. Market Street Ry. Co., 11 Cal.2d 724, 81 P.2d Nalwa v. Cedar Fair, L.P., 55 Cal.4th 1148, 150
950, 118 A.L.R. 533 (1938) . . . . . . . . . . . . 905 Cal.Rptr.3d 551, 290 P.3d 1158 (2012).470–472; 901
Mueller v. County of Los Angeles, 176 Cal.App.4th 809, Namikas v. Miller, 225 Cal.App.4th 1574, 171
98 Cal.Rptr.3d 281 (2009) . . . . . . . . . . . . 4603 Cal.Rptr.3d 23 (2014) . . . . . . . . . . . . . . . 601
Muller v. Auto. Club of So. Cal., 61 Cal.App.4th 431, 71 Nasrawi v. Buck Consultants LLC, 231 Cal.App.4th 328,
Cal.Rptr.2d 573, 63 Cal. Comp. Cases 165 179 Cal.Rptr.3d 813 (2014) . . . . . . . . . . . 3610
(1998) . . . . . . . . . . . . . . . . . . . . . . . 4605
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
National Emblem Insurance Co. v. Rios, 275 Cal.App.2d Nelson v. Anderson, 72 Cal.App.4th 111, 84 Cal.Rptr.2d
70, 79 Cal.Rptr. 583 (1969) . . . . . . . . . . . 2301 753 (1999). . . . . . . . . . . . . . . . . . . . .4101
National Farm Workers Service Center, Inc. v. M. Nelson v. City of Davis, 685 F.3d 867 (9th Cir.
Caratan, Inc., 146 Cal.App.3d 796, 194 Cal.Rptr. 617 2012) . . . . . . . . . . . . . . . . . . . . . . . 3020
(1983). . . . . . . . . . . . . . . . . . . . . . . .302 Nelson v. Gorian& Assocs., 61 Cal.App.4th 93, 71
National Medical Transportation Network v. Deloitte & Cal.Rptr.2d 345 (1998) . . . . . . . . . . . . . . 4551
Touche, 62 Cal.App.4th 412, 72 Cal.Rptr.2d 720 Nelson v. Hall, 165 Cal.App.3d 709, 211 Cal.Rptr. 668
(1998) . . . . . . . . . . . . . . . . . . . . . . . 2204 (1985). . . . . . . . . . . . . . . . . . . . . . . .463
National R.V., Inc. v. Foreman, 34 Cal.App.4th 1072, 40 Nelson v. Indevus Pharmaceuticals, Inc., 142 Cal.App.4th
Cal.Rptr.2d 672 (1995) . . . . . . . . . . 3200, 3201 1202, 48 Cal.Rptr.3d 668 (2006) . . . . . . . . . 455
National Union Fire Insurance Co. v. Lynette C., 27 Nelson v. Pearson Ford Co., 186 Cal.App.4th 983, 112
Cal.App.4th 1434, 33 Cal.Rptr.2d 496 (1994). .2360 Cal. Rptr. 3d 607 (2010) . . . . . . . . . . . . . 4700
Nault v. Smith, 194 Cal.App.2d 257, 14 Cal.Rptr. 889 Nelson v. Southern Pacific Co, 8 Cal.2d 648, 67 P.2d 682
(1961). . . . . . . . . . . . . . . . . . . . . . . .724 (1937). . . . . . . . . . . . . . . . . . . . . . . .215
Nautilus, Inc. v. Yang, 11 Cal.App.5th 33, 217 Nelson, 61 Cal.App.4th 93, 71 Cal.Rptr.2d 345 . . 4551
Cal.Rptr.3d 458, 217 Cal. Rptr. 3d 458 (2017) . 4207 The Nethercutt Collection, 172 Cal.App.4th 361, 90
Navarrete v. Meyer, 237 Cal.App.4th 1276, 188 Cal.Rptr.3d 882 . . . . . . . . . . . . . . 1700, 1701
Cal.Rptr.3d 623 (2015) . . . . . . . . . . 3600; 3610 Neudeck v. Bransten, 233 Cal.App.2d 17, 43 Cal.Rptr.
Navigators Specialty Ins. Co. v. Moorefield Construction, 250 (1965) . . . . . . . . . . . . . . . . . . 402; 421
Inc., 6 Cal.App.5th 1258, 212 Cal.Rptr.3d 231 Neumann v. Bishop, 59 Cal.App.3d 451, 130 Cal.Rptr.
(2016) . . . . . . . . . . . . . . . . . . . 2336; 2351 786 (1976). . . . . . . . . . . . . . . . . .105; 5001
Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 100 Nevarrez v. San Marino Skilled Nursing & Wellness
Cal.Rptr.3d 296 (2009) . . . . . . 2508; 2512; 2521A Centre, LLC, 221 Cal.App.4th 102, 163 Cal.Rptr.3d
NBCUniversal Media, LLC v. Superior Court, 225 874 (2013) . . . . . . . . . . . . . . . . . . . . . 201
Cal.App.4th 1222, 171 Cal.Rptr.3d 1 (2014) . . . 455 New v. Consolidated Rock Products Co., 171 Cal.App.3d
Neal v. Farmers Ins. Exchange, 21 Cal.3d 910, 148 Cal. 681, 217 Cal.Rptr. 522 (1985) . . . . . . . 219; 1010
Rptr. 389, 582 P.2d 980 (1978) . . 3940; 3942, 3943; New Haven Unified School Dist. v. Taco Bell Corp., 24
3945; 3947; 3949 Cal.App.4th 1473, 30 Cal.Rptr.2d 469 (1994). .3508
Neal, Conservatorship of, 190 Cal.App.3d 685, 235 New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69
Cal.Rptr. 577 (1987) . . . . . . . . . . . . . . . 4002 L.Ed.2d 768 (1981). . . . . . . . . . . . . . . .3024
Nealy v. City of Santa Monica, 234 Cal.App.4th 359, 184 New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
Cal. Rptr. 3d 9 (2015) . . . . . . . 2541; 2543; 2546 11 L.Ed.2d 686 (1964) . . . . . . . . . . . . . . 1700
Nece v. Bennett, 212 Cal.App.2d 494, 28 Cal.Rptr. 117 Newhall Land & Farming Co. v. Superior Court, 19
(1963) . . . . . . . . . . . . . . . . . . . . . . . 1920 Cal.App.4th 334, 23 Cal.Rptr.2d 377 (1993) . . 2000;
Needles, City of v. Griswold, 6 Cal.App.4th 1881, 8 2020, 2021
Cal.Rptr.2d 753 (1992) . . . . . . . . . . . . . . 3507 Newhart v. Pierce, 254 Cal.App.2d 783, 62 Cal.Rptr. 553
Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 (1967) . . . . . . . . . . . . . . . . . . . . 357; 2102
Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 Newing v. Cheatham, 15 Cal.3d 351, 124 Cal.Rptr. 193,
(1971). . . . . . . . . . . . . . .502; 610, 611; 4106 540 P.2d 33 (1975) . . . . . . . . . . . . . . 417; 518
Negri v. Koning & Associates, 216 Cal.App.4th 392, 156 Newland v. County of Los Angeles, 24 Cal. App. 5th 676,
Cal.Rptr.3d 697 (2013) . . . . . . . . . . 2720, 2721 234 Cal. Rptr. 3d 374, 83 Cal. Comp. Cases 1232
Nehad v. Browder, 929 F.3d 1125 (9th Cir. 2019) .3002; (2018) . . . . . . . . . . . . . . . . . . . . . . . 3725
3020 Newton v. County of Napa, 217 Cal.App.3d 1551, 266
Neighbarger v. Irwin Industries, Inc., 8 Cal.4th 532, 34 Cal.Rptr. 682 (1990) . . . . . . . . . . . . . . . 3001
Cal.Rptr.2d 630, 882 P.2d 347 (1994) . . . . 453; 473 Ng v. Hudson, 75 Cal.App.3d 250, 142 Cal.Rptr. 69
Neilson, In re Estate of, 57 Cal.2d 733, 22 Cal.Rptr. 1, (1977). . . . . . . . . . . . . . . . . . . .3927, 3928
371 P.2d 745 (1962) . . . . . . . . . . . . . . . . 213 Nguyen v. Western Digital Corp., 229 Cal.App.4th 1522,
Neiman v. Leo A. Daly Co., 210 Cal.App.4th 962, 148 178 Cal.Rptr.3d 897 (2014) . . . . . . . . . . . . 455
Cal.Rptr.3d 818 (2012) . . . . . . . . . . . . . . 4552 Nichols v. Great Am. Ins. Cos., 169 Cal.App.3d 766, 215
Nejadian v. County of Los Angeles, 40 Cal.App.5th 703, Cal.Rptr. 416 (1985) . . . . . . . . . . . . . . . 1731
253 Cal.Rptr.3d 404 (2019) . . . . . . 4603; VF-4602
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Nicholson v. Lucas, 21 Cal.App.4th 1657, 26 Cal.Rptr.2d Nunez v. Pennisi, 241 Cal.App.4th 861, 193 Cal. Rptr. 3d
778 (1994). . . . . . . . . . . . . . . . . . . . .1502 912 (2015) . . . . . . . . . . . . . . . . . 1501; 1510
Nickerson v. Stonebridge Life Ins. Co., 63 Cal.4th 363, Nunneley v. Edgar Hotel, 36 Cal.2d 493, 225 P.2d 497
203 Cal.Rptr.3d 23, 371 P.3d 242 (2016) . . . . 3940; (1950). . . . . . . . . . . . . . . . . . . . . . . .418
3942, 3943; 3945; 3947; 3949
Nickerson v. Stonebridge Life Ins. Co. (Nickerson II), 5 O
Cal.App.5th 1, 209 Cal.Rptr.3d 690 (2016). . .3940;
3942, 3943; 3945; 3947; 3949 O’Connor v. Village Green Owners Assn., 33 Cal.3d 790,
191 Cal.Rptr. 320, 662 P.2d 427 (1983) . . . . . 3060
Nicole M. v. Martinez Unified Sch. Dist., 964 F.Supp.
1369 (N.D. Cal. 1997) . . . . . . . . . . . . . . 3061 O’Hara v. Storer Communications, Inc., 231 Cal.App.3d
1101, 282 Cal.Rptr. 712 (1991) . . . . . . . . . 1709
Nielsen v. Beck, 157 Cal.App.4th 1041, 69 Cal.Rptr.3d
435 (2007) . . . . . . . . . . . . . . . . . . 610, 611 O’Keefe v. Kompa, 84 Cal.App.4th 130, 100 Cal.Rptr.2d
602 (2000). . . . . . . . . . . . . . . . . . . . .1520
Nieves v. Bartlett, ___ U.S. ___, 139 S.Ct. 1715, 204
L.Ed.2d 1, 204 L. Ed. 2d 1 (2019) . . . . 3050; 3055 O’Malley v. Hospitality Staffing Solutions, 20
Cal.App.5th 21, 228 Cal.Rptr.3d 731 (2018) . . 450C
Niles v. City of San Rafael, 42 Cal.App.3d 230, 116
Cal.Rptr. 733 (1974) . . . . . . . . . . . . . . 3904B O’Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d
288, 266 P.3d 987 (2012) . . . . . . . . . 1200; 1205
Nishiki v. Danko Meredith, P.C., 25 Cal.App.5th 883, 236
Cal.Rptr.3d 626 (2018) . . . . . . . . . . . . . . 2704 O’Neil v. Spillane, 45 Cal.App.3d 147, 119 Cal.Rptr. 245
(1975). . . . . . . . . . . . . . . . . . . . . . . .334
Nizam-Aldine v. City of Oakland, 47 Cal.App.4th 364, 54
Cal.Rptr.2d 781 (1996) . . . . . . . 1700; 1702; 1704 O’Neil, 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d
987. . . . . . . . . . . . . . . . . . . . . . . . .1200
Noble v. Sears, Roebuck & Co., 33 Cal.App.3d 654, 109
Cal.Rptr. 269 (1973) . . . . . . . . . . . . . . . . 426 O’Shea v. General Telephone Co., 193 Cal.App.3d 1040,
238 Cal.Rptr. 715 (1987) . . . . . . . . . . . . . 2711
Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct.
755, 62 L.Ed.2d 689 (1980). . . . . . . .2940; 2942 Oakes v. E.I. DuPont de Nemours & Co., Inc, 272
Cal.App.2d 645, 77 Cal.Rptr. 709 (1969) . . . . 1206
Norfolk & Western Railroad Co. v. Holbrook, 235 U.S.
625, 35 S.Ct. 143, 59 L.Ed. 392 (1915) . . . . . 2942 Oakland v. Pacific Gas & Electric Co., 47 Cal.App.2d
444, 118 P.2d 328 (1941) . . . . . . . . . 3930, 3931
Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344,
120 S.Ct. 1467, 146 L.Ed.2d 374 (2000) . . 800, 801; Oakland-Alameda County Builders’ Exchange v. F. P.
805 Lathrop Construction Co., 4 Cal.3d 354, 93 Cal. Rptr.
602, 482 P.2d 226, 1971 Trade Cas. (CCH) P73524
Norfolk Southern Ry. v. Sorrell, 549 U.S. 158, 127 S.Ct.
(1971) . . . . . . . . . . . . . . . . . . . 3400; 3403
799, 166 L.Ed.2d 638 (2007) . . . . . . . 2903, 2904
Occidental Land, Inc. v. Superior Court, 18 Cal.3d 355,
Norgart v. Upjohn Co., 21 Cal.4th 383, 87 Cal.Rptr.2d
134 Cal.Rptr. 388, 556 P.2d 750 (1976) . . . . . 4700
453, 981 P.2d 79 (1999) . . . . . . . . . . . . . . 455
Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr.
North American Chemical Co. v. Superior Court, 59
661, 703 P.2d 1 (1985) . . . . . . . . . . . . . . 3041
Cal.App.4th 764, 69 Cal.Rptr.2d 466 (1997). . .328;
2204; 3900 Ochs v. PacifiCare of California, 115 Cal.App.4th 782, 9
Cal.Rptr.3d 734 (2004). . . . . . . . . . . . . . .371
North Counties Engineering, Inc. v. State Farm General
Ins. Co., 224 Cal.App.4th 902, 169 Cal.Rptr.3d 726 Odorizzi v. Bloomfield School Dist., 246 Cal.App.2d
(2014) . . . . . . . . . . . . . . . . . . . . . . . 2336 123, 54 Cal.Rptr. 533 (1966). . . . . . . . .332; 335
Northern Pacific Railway Co. v. United States, 356 U.S. Oglesby v. Southern Pacific Transportation Co., 6 F.3d
1, 78 S.Ct. 514, 2 L.Ed.2d 545, 1958 Trade Cas. 603 (9th Cir. 1993) . . . . . . . . . . . . . . . . 2921
(CCH) P68961 (1958) . . . . . . . . . . . 3420, 3421 Oiye v. Fox, 211 Cal.App.4th 1036, 151 Cal.Rptr.3d 65
Northrop Grumman Corp. v. Workers’ Comp. Appeals (2012). . . . . . . . . . . . . . . . . . . . . . . .216
Bd., 103 Cal.App.4th 1021, 127 Cal.Rptr.2d 285, 67 Okun v. Morton, 203 Cal.App.3d 805, 250 Cal.Rptr. 220
Cal. Comp. Cases 1415 (2002). . . . . . . . . .2527 (1988) . . . . . . . . . . . . . . . . . . . . . . . 1907
Northwestern Title Security Co. v. Flack, 6 Cal.App.3d Okun v. Superior Court, 29 Cal.3d 442, 175 Cal.Rptr.
134, 85 Cal.Rptr. 693 (1970). . . . . . . . . . .2321 157, 629 P.2d 1369 (1981) . . . . . . . . . . . . 3600
Norton v. Superior Court, 24 Cal.App.4th 1750, 30 Oldenkott v. American Electric, Inc., 14 Cal.App.3d 198,
Cal.Rptr.2d 217 (1994). . . . . . . . . . . . . . .601 92 Cal.Rptr. 127 (1971) . . . . . . . . . . . . . 2422
Novak v. Continental Tire North America, 22 Oldham v. Atchison, T. & S. F. Ry. Co., 85 Cal.App.2d
Cal.App.5th 189, 231 Cal.Rptr.3d 324 (2018) . . 432; 214, 192 P.2d 516 (1948). . . . . . . . . . . . .1012
3921 Olive v. General Nutrition Centers, Inc., 30 Cal.App.5th
Null v. City of Los Angeles, 206 Cal.App.3d 1528, 254 804, 242 Cal.Rptr.3d 15, 242 Cal. Rptr. 3d 15
Cal.Rptr. 492 (1988) . . . . . . . . . . . . . . . 1400 (2018) . . . . . . . . . . . . . . . . . . . . . . . 1821
TC-49
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Oliver v. AT&T Wireless Services, 76 Cal.App.4th 521, Osborn v. Irwin Memorial Blood Bank, 5 Cal.App.4th
90 Cal.Rptr.2d 491 (1999) . . . . . . . . . . . . 2021 234, 7 Cal.Rptr.2d 101 (1992) . . . . . . . . 413; 430
Oliver; People v., 86 Cal.App.2d 885, 195 P.2d 926 Osborn v. Mission Ready Mix, 224 Cal.App.3d 104, 273
(1948). . . . . . . . . . . . . . . . . . . .2020, 2021 Cal.Rptr. 457 (1990) . . . . . . . . . . . . . . . 1004
Olofsson v. Mission Linen Supply, 211 Cal.App.4th Osborne v. Yasmeh, 1 Cal.App.5th 1118, 205 Cal.Rptr.3d
1236, 150 Cal.Rptr.3d 446 (2012) . . . . . 456; 2602 656 (2016). . . . . . . . . . . . . . . . . . . . .3061
Olszewski v. Scripps Health, 30 Cal.4th 798, 135 Ostling v. Loring, 27 Cal.App.4th 1731, 33 Cal.Rptr.2d
Cal.Rptr.2d 1, 69 P.3d 927 (2003) . . . . . . . 3903A 391 (1994). . . . . . . . . . . . . . . . . . . . .2003
Oltz v. St. Peter’s Community Hospital, 861 F.2d 1440, OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir.
1988-2 Trade Cas. (CCH) P68345 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . 3005
1988) . . . . . . . . . . . . . . . . . . . . . . . 3414 Ott v. Alfa-Laval Agri, Inc., 31 Cal.App.4th 1439, 37
Olympic Corp. v. Hawryluk, 185 Cal.App.2d 832, 8 Cal.Rptr.2d 790 (1995) . . . . . . . . . . . . . . 4510
Cal.Rptr. 728 (1960) . . . . . . . . . . . . . . . 4522 Outboard Marine Corp. v. Superior Court, 52 Cal.App.3d
117 Sales Corp. v. Olsen, 80 Cal.App.3d 645, 145 30, 124 Cal. Rptr. 852 (1975) . . . . . . . . . . 4701
Cal.Rptr. 778 (1978) . . . . . . . . . . . . . . . 1731 Outdoor Servs. v. Pabagold, 185 Cal.App.3d 676, 230
Oosten v. Hay Haulers Dairy Employees and Helpers Cal.Rptr. 73 (1986). . . . . . . . . . . . . . . . .301
Union, 45 Cal.2d 784, 291 P.2d 17, 37 L.R.R.M. Overhill Farms, Inc. v. Lopez, 190 Cal.App.4th 1248, 119
(BNA) 2317 (1955) . . . . . . . . . . . . . . . . 300 Cal.Rptr.3d 127 (2010) . . . . . . . . . . 1707; 2202
Oppenheimer v. Sunkist Growers, Inc., 153 Cal.App.2d Overly v. Ingalls Shipbuilding, Inc., 74 Cal.App.4th 164,
Supp. 897, 315 P.2d 116 (1957) . . . . . . . . . 2704 87 Cal.Rptr.2d 626 (1999) . . . . . . . 3903C–3903E
Oracle USA, Inc. v. Rimini Street, Inc., 879 F.3d 948, 125 Oviedo v. Windsor Twelve Properties, LLC, 212
U.S.P.Q.2d 1380 (9th Cir. 2018) . . . . . . . . . 1812 Cal.App.4th 97, 151 Cal.Rptr.3d 117 (2012) . . 1501
Orcilla v. Big Sur, Inc., 244 Cal.App.4th 982, 198 Owens v. Pyeatt, 248 Cal.App.2d 840, 57 Cal.Rptr. 100
Cal.Rptr.3d 715 (2016) . . . . . . . . . . . . . . 1900 (1967) . . . . . . . . . . . . . . . . . . . . . . . 5022
Oregel v. American Isuzu Motors, Inc., 90 Cal.App.4th Oxford v. Foster Wheeler LLC, 177 Cal.App.4th 700, 99
1094, 109 Cal.Rptr.2d 583 (2001) . 3200–3203; 3211; Cal.Rptr.3d 418 (2009). . . .1205; 1222; 1246, 1247
3244
Orichian v. BMW of North America, LLC, 226 P
Cal.App.4th 1322, 172 Cal.Rptr.3d 876 (2014) . 1230
Orndorff v. Christiana Community Builders, 217 P&D Consultants, Inc. v. City of Carlsbad, 190
Cal.App.3d 683, 266 Cal.Rptr. 193 (1990) . . 3903F; Cal.App.4th 1332, 119 Cal.Rptr.3d 253 (2010).4522;
4530, 4531 VF-4520
Ornelas v. Randolph, 4 Cal.4th 1095, 17 Cal.Rptr.2d 594, P.D., Conservatorship of, 21 Cal.App.5th 1163, 231
847 P.2d 560, 17 Cal. Rptr. 2d 594 (1993) . . . 1010 Cal.Rptr.3d 79 (2018) . . . . . . . . . . . 4000; 4004
Orosco v. Sun-Diamond Corp., 51 Cal.App.4th 1659, 60 Pac. Indem. Co.; State v., 63 Cal.App.4th 1535, 75
Cal.Rptr.2d 179, 62 Cal. Comp. Cases 32 Cal.Rptr.2d 69 (1998). . . . . . . . . . . . . . .2351
(1997) . . . . . . . . . . . . . . . . . . . . . . . 3712 Pacific Corporate Group Holdings, LLC v. Keck, 232
Oroville, City of v. Superior Court, 7 Cal.5th 1091, 250 Cal.App.4th 294, 181 Cal.Rptr.3d 399 (2014) . . 309
Cal.Rptr.3d 803, 446 P.3d 304 (2019) . . . . . . 3500 Pacific Employers Insurance Co. v. Superior Court, 221
Orozco v. WPV San Jose, LLC, 36 Cal.App.5th 375, 248 Cal.App.3d 1348, 270 Cal.Rptr. 779 (1990). . .2320
Cal.Rptr.3d 623 (2019) . . . . . . . . . 1908; 3903N Pacific Gas & Electric Co. v. Bear Stearns & Co., 50
Orr v. Pacific Southwest Airlines, 208 Cal.App.3d 1467, Cal.3d 1118, 270 Cal.Rptr. 1, 791 P.2d 587, 270 Cal.
257 Cal.Rptr. 18 (1989) . . . . . . . . . . . . . . 907 Rptr. 1 (1990) . . . . . . . . . . . . . . . 2200–2202
Orser v. George, 252 Cal.App.2d 660, 60 Cal. Rptr. 708 Pacific Gas & Electric Co. v. Mounteer, 66 Cal.App.3d
(1967) . . . . . . . . . . . . . . . . . . . . . . . 3610 809, 136 Cal.Rptr. 280 (1977). . . . . . . . . .3903J
Ortega v. Kmart Corp., 26 Cal.4th 1200, 114 Cal.Rptr.2d Pacific Gas & Electric Co. v. Superior Court, 10
470, 36 P.3d 11 (2001). . . . . . . . . . .1003; 1011 Cal.App.5th 563, 216 Cal. Rptr. 3d 426 (2017) . 1010
Orthopedic Systems, Inc. v. Schlein, 202 Cal.App.4th Pacific Gas & Electric Co. v. Superior Court, 15
529, 135 Cal.Rptr.3d 200 (2011) . . . 1804A, 1804B; Cal.App.4th 576, 19 Cal.Rptr.2d 295, 125 O.&G.R.
1821; VF-1804 258 (1993) . . . . . . . . . . . . . . . . . . . . . 320
Ortiz v. Dameron Hospital Assn., 37 Cal.App.5th 568, Pacific Gas & Electric Co. v. Zuckerman, 189 Cal.App.3d
250 Cal.Rptr.3d 1 (2019) . . . . . . . 2521A; 2522A 1113, 234 Cal.Rptr. 630 (1987) . . . . . . . . . 3502
Osborn v. Hertz Corp., 205 Cal.App.3d 703, 252 Pacific, Inc. v. Superior Court, 18 Cal.App.4th 1556, 23
Cal.Rptr. 613 (1988) . . . . . . . . . . . . . . . . 724 Cal.Rptr.2d 224 (1993) . . . 3101; 3104; 3107; 3109
TC-50
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Padgett v. Phariss, 54 Cal.App.4th 1270, 63 Cal.Rptr.2d Parsons v. Easton, 184 Cal. 764, 195 P. 419
373 (1997). . . . . . . . . . . . . . . . . . . . .4107 (1921). . . . . . . . . . . . . . . . . . . .3921, 3922
Palestini v. General Dynamics Corp., 99 Cal.App.4th 80, Parsons v. Tickner, 31 Cal.App.4th 1513, 37 Cal.Rptr. 2d
120 Cal.Rptr.2d 741, 67 Cal. Comp. Cases 754 810 (1995). . . . . . . . . . . . . . . . . . . . .1925
(2002) . . . . . . . . . . . . . . . . . . . . . . . 2802 Pasadena v. California—Michigan Land & Water Co., 17
Palm Property Investments, LLC v. Yadegar, 194 Cal. 2d 576, 110 P.2d 983 (1941) . . . . . . . . 4902
Cal.App.4th 1419, 123 Cal.Rptr.3d 816 Pasadena, City of v. Superior Court, 228 Cal.App.4th
(2011). . . . . . . . . . . . . . . . . . . .4302–4309 1228, 176 Cal.Rptr.3d 422 (2014). . . . .2020, 2021
Palm Springs Tennis Club v. Rangel, 73 Cal.App.4th 1, Paslay v. State Farm General Ins. Co., 248 Cal.App.4th
86 Cal.Rptr.2d 73 (1999) . . . . . . 1701; 1703; 1705 639, 203 Cal.Rptr.3d 785 (2016) . . . . . 2331; 3100
Palmer v. BRG of Georgia, Inc., 498 U.S. 46, 111 S.Ct. Patten v. Grant Joint Union High School Dist., 134
401, 112 L.Ed.2d 349, 1990-2 Trade Cas. (CCH) Cal.App.4th 1378, 37 Cal.Rptr.3d 113 (2005) . 2509;
P69250 (1990) . . . . . . . . . . . . . . . . . . 3401 4603
Palmer v. City of Long Beach, 33 Cal.2d 134, 199 P.2d Paulfrey v. Blue Chip Stamps, 150 Cal.App.3d 187, 197
952 (1948). . . . . . . . . . . . . . . . . .106; 5002 Cal.Rptr. 501 (1983) . . . . . . . . . . . . . . . 2332
Palmer v. Ted Stevens Honda, Inc., 193 Cal.App.3d 530, Paulus v. Crane Co., 224 Cal.App.4th 1357, 169 Cal.
238 Cal.Rptr. 363 (1987) . . . . . . . . . . . . .3924 Rptr. 3d 373, 79 Cal. Comp. Cases 516 (2014). .435
Palmer v. Zaklama, 109 Cal.App.4th 1367, 1 Cal.Rptr.3d Paverud v. Niagara Machine and Tool Works, 189
116 (2003). . . . . . . . . . . . . . . . . . . . .1730 Cal.App.3d 858, 234 Cal.Rptr. 585 (1987) . . . . 432
Palmquist v. Palmquist, 212 Cal.App.2d 322, 27 Cal.Rptr. Pay Less Drug Store; People v., 25 Cal.2d 108, 153 P.2d
744 (1963) . . . . . . . . . . . . . . . . . . . . . 319 9 (1944). . . . . . . . . . . .3300–3302; 3333–3335
Pan Asia Venture Capital Corp. v. Hearst Corp., 74 Payton v. Weaver, 131 Cal.App.3d 38, 182 Cal.Rptr. 225
Cal.App.4th 424, 88 Cal.Rptr.2d 118, 1999-2 Trade (1982). . . . . . . . . . . . . . . . . . . . . . . .509
Cas. (CCH) P72624 (1999). . . . .3300–3306; 3320 Paz v. State of California, 22 Cal.4th 550, 93 Cal.Rptr.2d
Panagotacos v. Bank of America, 60 Cal.App.4th 851, 70 703, 994 P.2d 975, 93 Cal. Rptr. 2d 703
Cal.Rptr.2d 595 (1998) . . . . . . . . . . . . 309; 311 (2000). . . . . . . . . . . . . . . . . . . . . . .450C
Pancoast v. Russell, 148 Cal.App.2d 909, 307 P.2d 719 PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser,
(1957). . . . . . . . . . . . . . . . . . . . . . . .602 Weil & Shapiro, LLP, 150 Cal.App.4th 384, 58
Pang v. Beverly Hospital, Inc., 79 Cal.App.4th 986, 94 Cal.Rptr.3d 516 (2007) . . . . . . . . . . . . . . 2100
Cal.Rptr.2d 643 (2000) . . . . . . . . . . 2600; 2603 Peake v. Underwood, 227 Cal.App.4th 428, 173 Cal.
Pannu v. Land Rover North America, Inc., 191 Rptr. 3d 624 (2014). . . . . . . . . . . . . . . .4109
Cal.App.4th 1298, 120 Cal.Rptr.3d 605 (2011) . 1203 Pearl v. City of Los Angeles, 36 Cal.App.5th 475, 248
Pantoja v. Anton, 198 Cal.App.4th 87, 129 Cal.Rptr.3d Cal.Rptr.3d 508 (2019) . . . . . . . . . 3905A; 3924
384 (2011) . . . . . . . . . . . . . . . . 2521A; 2523 Pebley v. Santa Clara Organics, LLC, 22 Cal.App.5th
Parker v. Atchison, Topeka and Santa Fe Ry. Co., 263 1266, 232 Cal.Rptr.3d 404 (2018).105; 3903A; 5001
Cal.App.2d 675, 70 Cal.Rptr. 8, 33 Cal. Comp. Cases Pedeferri v. Seidner Enterprises, 216 Cal.App.4th 359,
915 (1968) . . . . . . . . . . . . . . . . . 2903, 2904 163 Cal.Rptr.3d 55 (2013) . . . . . . . . . . . . .432
Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d Pedesky v. Bleiberg, 251 Cal.App.2d 119, 59 Cal.Rptr.
176, 89 Cal.Rptr. 737, 474 P.2d 689 (1970) . . 2401; 294 (1967) . . . . . . . . . . . . . . . . . . . . 530A
2406; 3903P; 3963 Peerless Laundry Services v. City of Los Angeles, 109
Parker, 263 Cal.App.2d 675, 70 Cal.Rptr. 8 . . . . 2903 Cal.App.2d 703, 241 P.2d 269 (1952). . . . . . .730
Parks v. Atwood Crop Dusters, Inc., 118 Cal.App.2d 368, Pelletier v. Eisenberg, 177 Cal.App.3d 558, 223 Cal.Rptr.
257 P.2d 653 (1953) . . . . . . . . . . . . . . 3903H 84 (1986) . . . . . . . . . . . . . . . . . . . . 3903K
Parlier Fruit Co. v. Fireman’s Fund Insurance Co., 151 People v. (see name of defendant)
Cal.App.2d 6, 311 P.2d 62 (1957) . . . . . . . . 2301 People ex rel. (see name of relator)
Parrish v. Latham & Watkins, 3 Cal.5th 767, 221 Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014). .3041
Cal.Rptr.3d 432, 400 P.3d 1 (2017) . . . . . . . 1501
Peredia v. HR Mobile Services, Inc., 25 Cal.App.5th 680,
Parsons v. Bristol Development Co., 62 Cal.2d 861, 44 236 Cal.Rptr.3d 157 (2018) . . . . . . . . . . . 450C
Cal.Rptr. 767, 402 P.2d 839 (1965) . . . . . . . . 314
Perez v. G & W Chevrolet, Inc., 274 Cal.App.2d 766, 79
Parsons v. Crown Disposal Co., 15 Cal.4th 456, 63 Cal.Rptr. 287 (1969) . . . . . . . . . . . . . . . . 724
Cal.Rptr.2d 291, 936 P.2d 70 (1997) . . . . . . . 472
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Perez v. Uline, Inc., 157 Cal.App.4th 953, 68 Cal.Rptr.3d PGA West Residential Assn., Inc. v. Hulven Internat.,
872 (2007) . . . . . . . . . . . . . . . . . . . . . 333 Inc., 14 Cal.App.5th 156, 221 Cal.Rptr.3d 353
Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 227 (2017) . . . . . . . . . . . . . . . . 4203, 4204; 4208
Cal.Rptr. 106, 719 P.2d 676 (1986) . . . 3700; 3720; Philadelphia National Bank; U.S. v., 374 U.S. 321, 83
3722 S.Ct. 1715, 10 L.Ed.2d 915, 1963 Trade Cas. (CCH)
Perez v. VAS S.p.A., 188 Cal.App.4th 658, 115 P70812 (1963) . . . . . . . . . . . . . . . . . . 3414
Cal.Rptr.3d 590 (2010) . . . 1201; 1203–1205; 1222; Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,
1245 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) . . . . . 1704
Perez, 157 Cal.App.4th 953, 68 Cal.Rptr.3d 872. . .333 Philip Morris USA v. Williams, 549 U.S. 346, 127 S. Ct.
Perez, 188 Cal.App.4th 658, 115 Cal.Rptr.3d 590 . 1203; 1057, 166 L. Ed. 2d 940 (2007). .3940; 3942, 3943;
1245 3945; 3947; 3949
Peri v. Los Angeles Junction Ry. Co., 22 Cal.2d 111, 137 Phillips v. CSX Transportation Co., 190 F.3d 285 (4th Cir.
P.2d 441 (1943). . . . . . . . . . . . . . . .800, 801 1999) . . . . . . . . . . . . . . . . . . . . . . . 2920
Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. Phillips v. Honeywell Internat. Inc., 9 Cal.App.5th 1061,
479, 610 A.2d 364 (1992) . . . . . . . . . . . . 4532 217 Cal.Rptr.3d 147 (2017) . . . . . . . . . . . . 435
Perlin v. Fountain View Management, Inc., 163 Phillips v. TLC Plumbing, Inc., 172 Cal.App.4th 1133, 91
Cal.App.4th 657, 77 Cal.Rptr.3d 743 (2008) . . 3104; Cal.Rptr.3d 864 (2009). . . . . . . . . . . . . . .426
3107; 3110 Phoenix Mechanical Pipeline, Inc. v. Space Exploration
Perris, City of v. Stamper, 1 Cal.5th 576, 205 Cal. Rptr. Technologies Corp., 12 Cal.App.5th 842, 219 Cal.
3d 797, 376 P.3d 1221 (2016) . . 3500, 3501; 3509B; Rptr. 3d 775 (2017) . . . . . . . . . . . . 4560; 4562
3511A, 3511B Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731,
Perry v. County of Fresno, 215 Cal.App.4th 94, 155 20 L.Ed.2d 811 (1968) . . . . . . . . . . . . . . 3053
Cal.Rptr.3d 219 (2013) . . . . . . . . . . . . . . 3721 Piedra v. Dugan, 123 Cal.App.4th 1483, 21 Cal.Rptr.3d
Persons v. Salomon N. Am., 217 Cal.App.3d 168, 265 36 (2004) . . . . . . . . . . . . . . . . . . . . . 530B
Cal.Rptr. 773 (1990) . . . . . . . . . . . . . . . 1205 Pieper, Estate of, 224 Cal.App.2d 670, 37 Cal.Rptr. 46
Peter Kiewit Sons’ Co. v. Pasadena City Junior College (1964). . . . . . . . . . . . . . . . . . . . . . . .456
Dist., 59 Cal.2d 241, 28 Cal.Rptr. 714, 379 P.2d 18 Pierce v. Pacific Gas & Electric Co., 166 Cal.App.3d 68,
(1963) . . . . . . . . . . . . . . . . . . . . . . . 4532 212 Cal.Rptr. 283, 60 A.L.R.4th 709 (1985) . . . 460
Peters v. Bigelow, 137 Cal.App. 135, 30 P.2d 450 Pierce v. San Jose Mercury News, 214 Cal.App.3d 1626,
(1934) . . . . . . . . . . . . . . . . . . . . . . . 1405 263 Cal.Rptr. 410 (1989) . . . . . . . . . . . . .1709
Peters v. City & County of San Francisco, 41 Cal.2d 419, Pierson v. Helmerich & Payne Internat. Drilling Co., 4
260 P.2d 55 (1953) . . . . . . . . . . . . . . . . 1008 Cal.App.5th 608, 209 Cal.Rptr.3d 222, 81 Cal. Comp.
Peterson v. Cruickshank, 144 Cal.App.2d 148, 300 P.2d Cases 993 (2016) . . . . . . . . . . 3709; 3725, 3726
915 (1956). . . . . . . . . . . . . . . . . . . . .3601 Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr.
Peterson v. Grieger, Inc., 57 Cal.2d 43, 17 Cal.Rptr. 828, 629, 467 P.2d 229 (1970). . . . . . . . . . . . .1221
367 P.2d 420 (1961) . . . . . . . . . . . . . 720, 721 Pineda v. Bank of America, N.A., 50 Cal.4th 1389, 117
Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 5 Cal.Rptr. Cal.Rptr.3d 377, 241 P.3d 870 (2010) . . . . . . 2704
863, 353 P.2d 575 (1960) . . . . . . . . . 1231, 1232 Pines v. Tomson, 160 Cal.App.3d 370, 206 Cal. Rptr. 866,
Peterson v. San Francisco Community College Dist., 36 1984-2 Trade Cas. (CCH) P66308 (1984) . . . . 3061
Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193 Pinto v. Farmers Ins. Exchange, 61 Cal.App.5th 676, 276
(1984) . . . . . . . . . . . . . . . . . . . . . . . 1102 Cal.Rptr.3d 13 (2021). . . . . . . . . . . . . . .2334
Peterson v. Superior Court, 10 Cal.4th 1185, 43 Piscitelli v. Friedenberg, 87 Cal.App.4th 953, 105
Cal.Rptr.2d 836, 899 P.2d 905 (1995) . . . . . . 4320 Cal.Rptr.2d 88 (2001) . . . . . . . . . . . 2800; 3900
Petitpas v. Ford Motor Co., 13 Cal.App.5th 261, 220 Pittman v. Boiven, 249 Cal.App.2d 207, 57 Cal.Rptr. 319
Cal.Rptr.3d 185 (2017) . . . . . . . . 430; 435; 1200 (1967) . . . . . . . . . . . . . . . . . . 212; 404; 709
Pettus v. Cole, 49 Cal.App.4th 402, 57 Cal.Rptr.2d 46, 61 Pitts v. County of Kern, 17 Cal.4th 340, 70 Cal.Rptr.2d
Cal. Comp. Cases 975 (1996) . . . . . . . . . . 1807 823, 949 P.2d 920 (1998). . . . . .3000; 3002; 3042
Pfeifer v. Countrywide Home Loans, Inc., 211 Pitzer College v. Indian Harbor Ins. Co., 8 Cal.5th 93,
Cal.App.4th 1250, 150 Cal.Rptr.3d 673 (2012) . 4920 251 Cal.Rptr.3d 701, 447 P.3d 669 (2019) . . . 2320;
Pfeifer v. John Crane, Inc., 220 Cal.App.4th 1270, 164 2322
Cal.Rptr.3d 112 (2013). .405, 406; 517; 1244; 3114; Platt Pacific, Inc. v. Andelson, 6 Cal.4th 307, 24
3940, 3941; 3944; 3946; 3948 Cal.Rptr.2d 597, 862 P.2d 158 (1993) . . . . 321, 322
TC-52
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Pleasant Hill, City of v. First Baptist Church of Pleasant Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935,
Hill, 1 Cal.App.3d 384, 82 Cal.Rptr. 1 (1969) . . 100 62 Cal. Rptr. 2d 142 (1997) . . . . . . . . 2541, 2542
Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 146 Prince v. Pacific Gas & Electric Co., 45 Cal.4th 1151, 90
Cal.Rptr.3d 585 (2012) . . 1301; 1600; 2101; 3903O; Cal.Rptr.3d 732, 202 P.3d 1115 (2009) . . . . . 3801
3905A Pritchard v. Sully-Miller Contracting Co., 178 Cal. App.
Plummer v. Day/Eisenberg, LLP, 184 Cal.App.4th 38, 2d 246, 2 Cal. Rptr. 830 . . . . . . . . . . . . . 1100
108 Cal. Rptr. 3d 455 (2010). . . . . . . . . . .2100 Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d
PMC, Inc. v. Kadisha, 78 Cal.App.4th 1368, 93 Cal.Rptr. 72, 854 P.2d 721, 58 Cal. Comp. Cases 420
2d 663, 54 U.S.P.Q.2d 1262 (2000) . . . . . . . 4407 (1993) . . . . . . . . . . . . . . . . . . . 3708; 5014
PMC, Inc. v. Saban Entertainment, Inc., 45 Cal.App.4th Proctor; People v., 4 Cal.4th 499, 15 Cal.Rptr.2d 340, 842
579, 52 Cal.Rptr.2d 877 (1996). . .2200–2202; 2204 P.2d 1100 (1992) . . . . . . . . . . . . . . . . . 5016
Pobor v. Western Pacific Railroad Co., 55 Cal.2d 314, 11 Professional Tax Appeal v. Kennedy-Wilson Holdings,
Cal.Rptr. 106, 359 P.2d 474 (1961) . . . . . . . . 711 Inc., 29 Cal.App.5th 230, 239 Cal.Rptr.3d 908
Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931 (2018). . . . . . . . . . . . . . . . . . . . . . . .375
(1945). . . . . . . . . . . . . . . . . . . . . . . .416 Proksel v. Gattis, 41 Cal.App.4th 1626, 49 Cal.Rptr.2d
Polk, 47 Cal.App.4th 944, 54 Cal.Rptr.2d 921 . . . 5018 322 (1996) . . . . . . . . . . . . . . . 2521C; 2522C
Pollard v. Saxe & Yolles Development Co., 12 Cal.3d Property California SCJLW One Corp. v. Leamy, 25
374, 115 Cal.Rptr. 648, 525 P.2d 88 (1974) . . 1243; Cal.App.5th 1155, 236 Cal.Rptr.3d 500 (2018) . 219;
4510 302
Polygram Records, Inc. v. Superior Court, 170 Property Reserve, Inc. v. Superior Court, 1 Cal.5th 151,
Cal.App.3d 543, 216 Cal.Rptr. 252 (1985) . . . 1731 204 Cal. Rptr. 3d 770, 375 P.3d 887 (2016) . . 3500;
Ponce v. Northeast Illinois Regional Commuter Railroad 3509B; 3511B
Corp., 103 F.Supp.2d 1051 (N.D. Ill. 2000) . . .2926 Providian Credit Card Cases, In re, 96 Cal.App.4th 292,
Pool v. City of Oakland, 42 Cal.3d 1051, 232 Cal.Rptr. 116 Cal.Rptr. 2d 833 (2002). . . . . . . .4402–4404
528, 728 P.2d 1163 (1986). . . . . . . . .3930, 3931 Province v. Center for Women’s Health & Family Birth,
Popescu v. Apple Inc., 1 Cal.App.5th 39, 204 Cal.Rptr.3d 20 Cal.App.4th 1673, 25 Cal.Rptr.2d 667 (1993).100
302 (2016). . . . . . . . . . . . . . . . . . . . .2403 Prue v. Brady Co./San Diego, Inc., 242 Cal.App.4th
Portillo v. Aiassa, 27 Cal.App.4th 1128, 32 Cal.Rptr.2d 1367, 196 Cal.Rptr.3d 68, 80 Cal. Comp. Cases 1427
755 (1994). . . . . . . . . . . . . . . . . . . . .1006 (2015) . . . . . . . . . . . . . . . . . . . . . . . 2430
Posner v. Grunwald-Marx, Inc, 56 Cal.2d 169, 14 Pruyn v. Agricultural Insurance Co., 36 Cal.App.4th 500,
Cal.Rptr. 297, 363 P.2d 313 (1961). . . . .312; 4524 42 Cal.Rptr.2d 295 (1995) . . . . . . . . . . . . 2360
Postal Instant Press v. Sealy, 43 Cal.App.4th 1704, 51 Public Employees’ Retirement System v. Moody’s
Cal.Rptr.2d 365 (1996). . . . . . . . . . . . . . .350 Investors Service, Inc., 172 Cal.Rptr.3d 238, 226
Cal.App.4th 643 . . . . . . . . . . . . . . 1903; 1908
Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 25
Cal.Rptr.2d 550, 863 P.2d 795 (1993) . . 1601; 1622, Puckett; People v., 44 Cal.App.3d 607, 118 Cal.Rptr. 884
1623; 3903B (1975) . . . . . . . . . . . . . . . . . . . . . . . 1300
Powell v. Dell-Air Aviation, Inc., 268 Cal.App.2d 451, 74 Pugh v. See’s Candies, Inc., 116 Cal.App.3d 311, 171
Cal.Rptr. 3 (1968) . . . . . . . . . . . . . . . . . 903 Cal.Rptr. 917, 115 L.R.R.M. (BNA) 4002
(1981) . . . . . . . . . . . . . . . . . . . . . . . 2405
Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A, 221 Cal.App.4th 867, 164 Cal.Rptr.3d Pulte Home Corp. v. American Safety Indemnity Co., 14
811 (2013) . . . . . . . . . . 3943–3948; 3961, 3962 Cal.App.5th 1086, 223 Cal.Rptr.3d 47 (2017) . 2330,
2331
Prakashpalan v. Engstrom, Lipscomb & Lack, 223
Cal.App.4th 1105, 167 Cal. Rptr. 3d 832 Purton v. Marriott Internat., Inc., 218 Cal.App.4th 499,
(2014) . . . . . . . . . . . . . . . . . . . . . . . 4111 159 Cal.Rptr.3d 912 (2013) . . . . . . . . . . . 3720
Preis v. American Indemnity Co., 220 Cal.App.3d 752, Putensen v. Clay Adams, Inc., 12 Cal.App.3d 1062, 91
269 Cal.Rptr. 617 (1990) . . . . . . . . . 2307; 3709 Cal.Rptr. 319 (1970) . . . . . . . . . 551; 1221, 1222
Preston v. Hubbell, 87 Cal.App.2d 53, 196 P.2d 113
(1948). . . . . . . . . . . . . . . . . . . . . . . .554 Q
Pretzer v. California Transit Co., 211 Cal. 202, 294 P. 382 Quality Wash Group V, Ltd. v. Hallak, 50 Cal.App.4th
(1930) . . . . . . . . . . . . . . . . . . . . . . 3903N 1687, 58 Cal.Rptr.2d 592 (1996). . . . . . . . .1903
Prichard v. Veterans Cab Co., 63 Cal.2d 727, 47 Cal.Rptr. Quelimane Co. v. Stewart Title Guaranty Co., 19 Cal.4th
904, 408 P.2d 360 (1965). . . . . . . .402; 421; 700 26, 77 Cal.Rptr.2d 709, 960 P.2d 513, 1998-2 Trade
Priebe v. Nelson, 39 Cal.4th 1112, 47 Cal.Rptr.3d 553, Cas. (CCH) P72285 (1998) . . . . . . . . 2200, 2201
140 P.3d 848 (2006) . . . . . . . . . . . . . 462, 463
TC-53
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Quigley v. McClellan, 214 Cal.App.4th 1276, 154 Ranch at the Falls LLC v. O’Neal, 38 Cal.App.5th 155,
Cal.Rptr.3d 719 (2013). . . . . . . . . . . . . . .600 250 Cal.Rptr.3d 585 (2019) . . . . . . . . . . . 4901
Quintilliani v. Mannerino, 62 Cal.App.4th 54, 72 Cal. Rancho Santa Fe Pharmacy, Inc. v. Seyfert, 219
Rptr. 2d 359 (1998). . . . . . . . . . . . . . . .4120 Cal.App.3d 875, 268 Cal.Rptr. 505 (1990) . . . . 302
Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 45 Ransom v. The Penn Mutual Life Insurance Co., 43
Cal. Rptr. 3d 222 (2006) . . . . . . . . . . . . 3903Q Cal.2d 420, 274 P.2d 633 (1954). . . . . . . . .2302
Rappaport-Scott v. Interinsurance Exch. of the Auto.
R Club, 146 Cal.App.4th 831, 53 Cal.Rptr.3d 245
(2007) . . . . . . . . . . . . . . . . 2331, 2332; 2334
R. J. Kuhl Corp. v. Sullivan, 13 Cal.App.4th 1589, 17
Rashtian v. BRAC-BH, Inc., 9 Cal.App.4th 1847, 12
Cal.Rptr.2d 425 (1993) . . . . . . . . . . . . . . 2330
Cal.Rptr.2d 411 (1992). . . . . .720; 2521A–2521C;
Ra v. Superior Court, 154 Cal.App.4th 142, 64 2522A–2522C
Cal.Rptr.3d 539 (2007) . . . . . . . . . . . . . . 1621
Ravell v. United States, 22 F.3d 960 (9th Cir.
Rabago-Alvarez v. Dart Industries, Inc., 55 Cal.App.3d 1994) . . . . . . . . . . . . . . . . . . . . . . . 1010
91, 127 Cal.Rptr. 222, 115 L.R.R.M. (BNA) 4704
Raven H. v. Gamette, 157 Cal.App.4th 1017, 68
(1976) . . . . . . . . . . . . . . . . . . . . . . . 3963
Cal.Rptr.3d 897 (2007). . . . . . . . . . . . . . .430
Raceway Ford Cases, 2 Cal.5th 161, 211 Cal.Rptr.3d 244,
Ray; People v., 21 Cal.4th 464, 88 Cal.Rptr.2d 1, 981 P.2d
385 P.3d 397 (2016) . . . . . . . . . . . . . . . 4700
928 (1999). . . . . . . . . . . . . . . . . . . . .2005
Racine & Laramie, Ltd. v. Department of Parks &
Raytheon Co. v. Fair Employment & Housing Com., 212
Recreation, 11 Cal.App.4th 1026, 14 Cal.Rptr.2d 335
Cal.App.3d 1242, 261 Cal.Rptr. 197 (1989). . .2544
(1992) . . . . . . . . . . . . . . . . . . . . 325; 4502
Reader’s Digest Assn. v. Superior Court, 37 Cal.3d 244,
Rae v. California Equipment Co., 12 Cal.2d 563, 86 P.2d
208 Cal.Rptr. 137, 690 P.2d 610 (1984) . 1700; 1802
352, 4 Cal. Comp. Cases 21 (1939) . . . . . . . 1224
Reddy v. Gonzalez, 8 Cal.App.4th 118, 10 Cal.Rptr.2d
Raedeke v. Gibraltar Savings & Loan Assn., 10 Cal. 3d
58, 10 Cal.Rptr.2d 55 (1992). . . . . . . . . . .4200
665, 111 Cal. Rptr. 693, 517 P.2d 1157 (1974) . .303
Redevelopment Agency of the City of Long Beach v.
Ragland v. U.S. Bank National Assn., 209 Cal.App.4th
First Christian Church of Long Beach, 140
182, 147 Cal.Rptr.3d 41 (2012) . . . . . 1620; 3905A
Cal.App.3d 690, 189 Cal.Rptr. 749 (1983) . . . 3500,
Ragsdell v. Southern Pacific Transportation Co., 688 F.2d 3501
1281 (9th Cir. 1982) . . . . . . . . . . . . . . . 2901
Redevelopment Agency of the City of Pomona v. Thrifty
Rainer v. Community Memorial Hospital, 18 Cal.App.3d Oil Co., 4 Cal.App.4th 469, 5 Cal.Rptr.2d 687
240, 95 Cal.Rptr. 901 (1971) . . . . . . . . . . . 505 (1992) . . . . . . . . . . . . . . . . . . . . . . . 3513
Rains v. Superior Court, 150 Cal.App.3d 933, 198 Redfearn v. Trader Joe’s Co., 20 Cal.App.5th 989, 230
Cal.Rptr. 249 (1984) . . . . . 1300; 1302, 1303; 1306 Cal. Rptr. 3d 98 (2018). . . . . . .2201, 2202; 2204
Rakestraw v. Rodrigues, 8 Cal.3d 67, 104 Cal.Rptr. 57, Redman v. County of San Diego, 942 F.2d 1435 (9th Cir.
500 P.2d 1401 (1972) . . . . . . . . . . . 3004; 3710 1991) . . . . . . . . . . . . . . . . . . . . . . . 3002
Ralph Andrews Productions, Inc. v. Paramount Pictures Redwood Theatres, Inc. v. Festival Enterprises, Inc., 200
Corp., 222 Cal.App.3d 676, 271 Cal.Rptr. 797 Cal.App.3d 687, 248 Cal.Rptr. 189, 1988-1 Trade Cas.
(1990). . . . . . . . . . . . . . . . . . . .4406, 4407 (CCH) P68065 (1988) . . . . . . . . . . . 3412, 3413
Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Reed v. Pennsylvania Railroad Co., 351 U.S. 502, 76
Cal.App.5th 245, 225 Cal.Rptr.3d 305, 225 Cal. Rptr. S.Ct. 958, 100 L.Ed. 1366 (1956). . . . .2900; 2920
3d 305 (2017) . . . . . . . . . . . . . . . 2000; 3701
Reese v. Wong, 93 Cal.App.4th 51, 112 Cal.Rptr.2d 669
Ram v. OneWest Bank, FSB, 234 Cal.App.4th 1, 183 (2001). . . . . . . . . . . . . . . . . . . . . . . .356
Cal.Rptr.3d 638 (2015) . . . . . . . . . . . . . . 4920
Reeves v. MV Transportation, Inc., 186 Cal.App.4th 666,
Ramirez v. Plough, Inc., 6 Cal.4th 539, 25 Cal.Rptr.2d 97, 111 Cal.Rptr.3d 896 (2010). . . . . . . . . . . .2500
863 P.2d 167, 27 A.L.R.5th 899 (1993) . . . 401; 418
Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95, 16
Ramirez v. USAA Casualty Insurance Co., 234 Cal.Rptr.3d 717 (2004) . . . . . . . . . . . . . . 2511
Cal.App.3d 391, 285 Cal.Rptr. 757 (1991) . . . 2333
Reeves, 186 Cal.App.4th 666, 111 Cal.Rptr.3d
Ramirez v. Yosemite Water Co., 20 Cal.4th 785, 85 896. . . . . . . . . . . . . . . . . . . . . . . . .2500
Cal.Rptr.2d 844, 978 P.2d 2 (1999). . . .2701, 2702;
Regalado v. Callaghan, 3 Cal.App.5th 582, 207
2720, 2721
Cal.Rptr.3d 712 (2016) . . . . . . . . . . . . . 1009B
Ramirez; U.S. v., 523 U.S. 65, 118 S.Ct. 992, 140
Regent Alliance Ltd. v. Rabizadeh, 231 Cal. App. 4th
L.Ed.2d 191 (1998). . . . . . . . . . . . . . . .3022
1177, 180 Cal. Rptr. 3d 610, 231 Cal.App.4th 1177
Ramos v. Brenntag Specialties, Inc., 63 Cal.4th 500, 203 (2014) . . . . . . . . . . . . . . . . . . . . . . . 2100
Cal.Rptr.3d 273, 372 P.3d 200 (2016) . . . . . . 1208
TC-54
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Regents of University of California v. Hartford Accident Ribas v. Clark, 38 Cal.3d 355, 212 Cal.Rptr. 143, 696
& Indemnity Co., 21 Cal.3d 624, 147 Cal.Rptr. 486, P.2d 637, 49 A.L.R.4th 417 (1985). . . . . . . .1809
581 P.2d 197 (1978) . . . . . . . . . . . . 1221; 1223 Ricciuti v. New York City Transit Authority, 124 F.3d 123
Regents of University of California v. Superior Court, 4 (2d Cir. 1997). . . . . . . . . . . . . . . . . . .3052
Cal.5th 607, 230 Cal.Rptr.3d 415, 413 P.3d 656 Rice v. California Lutheran Hospital, 27 Cal.2d 296, 163
(2018). . . . . . . . . . . . . . . . . . . . . . . .400 P.2d 860 (1945) . . . . . . . . . . . . . . . . . . 514
Regents of University of California v. Superior Court, 29 Rice v. Southern Pacific Co., 247 Cal.App.2d 701, 55
Cal.App.5th 890, 240 Cal. Rptr. 3d 675 (2018). .400 Cal.Rptr. 840 (1967) . . . . . . . . . . . . . . . . 803
Rehmani v. Superior Court, 204 Cal.App.4th 945, 139 Rich & Whillock, Inc., 157 Cal.App.3d 1154, 204
Cal.Rptr.3d 464 (2012) . . . . . . . . . . . . . 2521A Cal.Rptr. 86. . . . . . . . . . . . . . . . . . . . .333
Reid v. City of San Diego, 23 Cal.App.5th 901, 234 Richard v. Degen & Brody, Inc., 181 Cal.App.2d 289, 5
Cal.Rptr.3d 636 (2018). . . . . . . . . . . . . . .457 Cal.Rptr. 263 (1960) . . . . . . . . . . . . . . . 4341
Reid v. Google, Inc., 50 Cal. 4th 512, 235 P.3d 988, 113 Richard v. Scott, 79 Cal.App.3d 57, 144 Cal.Rptr. 672
Cal. Rptr. 3d 327 (2010) . . 411; 1005; 2500; 2521A; (1978). . . . . . . . . . . . . . . . . . . . . . . .220
4552 Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23
Reid v. Mercury Ins. Co., 220 Cal.App.4th 262, 162 (1954). . . . . . . . . . . . . . . . . . . . . . . .724
Cal.Rptr.3d 894 (2013) . . . . . . . . . . . . . . 2334 Richardson v. La Rancherita, 98 Cal.App.3d 73, 159
Reid; U.S. v., 226 F.3d 1020 (9th Cir. 2000). . . .3025, Cal.Rptr. 285, 159 Cal. Rptr. 285 (1979) . . . . 2210
3026 Richey v. AutoNation, Inc., 60 Cal.4th 909, 182 Cal. Rptr.
Reida v. Lund, 18 Cal.App.3d 698, 96 Cal.Rptr. 102 3d 644, 341 P.3d 438 (2015) . . . . . . . 2600; 2612
(1971). . . . . . . . . . . . . . . . . . . . . . . .428 Richman v. Hartley, 224 Cal.App.4th 1182, 169
Reigelsperger v. Siller, 40 Cal.4th 574, 53 Cal.Rptr.3d Cal.Rptr.3d 475 (2014). . . . . . . . . . . . . . .303
887, 150 P.3d 764 (2007) . . . . . . . . . . . . . 372 Rickley v. Goodfriend, 212 Cal.App.4th 1136, 151
Reisner v. Regents of Univ. of California, 31 Cal.App.4th Cal.Rptr.3d 683 (2013) . . . . . . . . . . 3600; 3602
1195, 37 Cal.Rptr.2d 518 (1995) . . . . . . . . . 507 Rideau v. Los Angeles Transit Lines, 124 Cal.App.2d
Reliance Insurance Co. v. Superior Court, 84 Cal.App.4th 466, 268 P.2d 772 (1954). . . . . . . . . . . . .3928
383, 100 Cal.Rptr.2d 807 (2000). . . . . . . . .2360 Ries v. Reinard, 47 Cal.App.2d 116, 117 P.2d 386
Religious Tech. Ctr. v. Netcom On-Line Commun. Servs., (1941). . . . . . . . . . . . . . . . . . . . . . . .505
923 F.Supp. 1231 (N.D.Cal. 1995). . . . . . . .4406 Rifkin v. Achermann, 43 Cal.App.4th 391, 50 Cal.Rptr.2d
Renda v. Nevarez, 223 Cal.App.4th 1231, 167 661 (1996) . . . . . . . . . . . . . . . . . . . . . 356
Cal.Rptr.3d 874 (2014) . . . . . . . . . . . . . . 4200 Riley v. Southwest Marine, Inc., 203 Cal.App.3d 1242,
Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 250 Cal.Rptr. 718 (1988) . . . . . . . . . . . . .3706
P.2d 1333 (1998) . . . . . . . . . 2520; 2521A; 2523 Rimini Street, Inc. v. Oracle USA, Inc., ___ U.S. ___, 139
Resch v. Volkswagen of America, Inc., 36 Cal.3d 676, S.Ct. 873, 203 L.Ed.2d 180, 129 U.S.P.Q.2d 1459
205 Cal.Rptr. 827, 685 P.2d 1178 (1984) . . . . 5012 (2019) . . . . . . . . . . . . . . . . . . . . . . . 1812
Resort Video, Ltd. v. Laser Video, Inc., 35 Cal.App.4th Rimmele v. Northridge Hospital Foundation, 46
1679, 42 Cal.Rptr.2d 136 (1995). . . .350; 352, 353 Cal.App.3d 123, 120 Cal.Rptr. 39 (1975) . . 417; 518
Responsible Citizens v. Superior Court, 16 Cal.App.4th Ripon, City of v. Sweetin, 100 Cal.App.4th 887, 122
1717, 20 Cal.Rptr.2d 756 (1993) . . . . . . . . . 600 Cal.Rptr.2d 802 (2002) . . . . . . . . . . . . . 3509A
Reusche v. California Pacific Title Ins. Co., 231 Rischard v. Miller, 182 Cal. 351, 188 P. 50 (1920).4524
Cal.App.2d 731, 42 Cal.Rptr. 262 (1965) . . . . 3710 River Bank America v. Diller, 38 Cal.App.4th 1400, 45
Reycraft v. Lee, 177 Cal.App.4th 1211, 99 Cal.Rptr.3d Cal.Rptr.2d 790 (1995). . . . . . . . . . . . . . .333
746 (2009). . . . . . . . . . . . . . . . . . . . .3070 Rivera v. Sassoon, 39 Cal.App.4th 1045, 46 Cal.Rptr.2d
Reynolds v. Bank of America National Trust & Savings 144 (1995). . . .111; 3941, 3942; 3944; 3946; 3948,
Assn., 53 Cal.2d 49, 345 P.2d 926, 73 A.L.R.2d 716 3949; 5015
(1959). . . . . . . . . . . . . . . . . . . . . .3903M Riverisland Cold Storage, Inc. v. Fresno-Madera
Reynolds v. California Dental Service, 200 Cal.App.3d Production Credit Assn., 55 Cal.4th 1169, 151
590, 246 Cal.Rptr. 331, 1988-1 Trade Cas. (CCH) Cal.Rptr.3d 93, 291 P.3d 316 (2013) . . . . . . . 304
P68071 (1988) . . . . . . . . . . . . . . . . . . 3411 Robbins v. Hamburger Home for Girls, 32 Cal.App.4th
Reynolds v. Natural Gas Equipment, Inc., 184 671, 38 Cal.Rptr.2d 534 (1995) . . 3000; 3022, 3023
Cal.App.2d 724, 7 Cal.Rptr. 879 (1960). . . . .1221 Robbins v. Wong, 27 Cal.App.4th 261, 32 Cal.Rptr.2d
Rhee v. El Camino Hospital Dist., 201 Cal.App.3d 477, 337 (1994) . . . . . . . . . . . . . . . . . . . . . 211
247 Cal.Rptr. 244 (1988) . . . . . . . . . . . . . 516
TC-55
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Robert L. Cloud & Assocs., 69 Cal.App.4th 1141, 82 Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77
Cal.Rptr.2d 143 . . . . . . . . . . . . . . . . . . 4411 S.Ct. 443, 1 L.Ed.2d 493 (1957) . . . . . 2903, 2904
Roberts v. Guillory, 25 Cal.App.3d 859, 102 Cal.Rptr. Rojo v. Kliger, 52 Cal.3d 65, 276 Cal.Rptr. 130, 801 P.2d
134 (1972) . . . . . . . . . . . . . . . . . . . . . 415 373 (1990). . . . . . . . . . . . . . . . . . . . .2432
Roberts v. Karr, 178 Cal.App.2d 535, 3 Cal.Rptr. 98 Roman v. BRE Properties, Inc., 237 Cal.App.4th 1040,
(1961). . . . . . . . . . . . . . . . . . . . . . . .602 188 Cal.Rptr.3d 537 (2015) . . . . . . . . . . . 2548
Roberts v. Permanente Corp, 188 Cal.App.2d 526, 10 Romano v. Rockwell Internat., Inc., 14 Cal.4th 479, 59
Cal.Rptr. 519 (1961). . . . . . . . . . . .2000; 2004 Cal.Rptr.2d 20, 926 P.2d 1114 (1996) .324; 454, 455;
Roberts v. Sentry Life Insurance, 76 Cal.App.4th 375, 90 4120
Cal.Rptr.2d 408 (1999) . . . . . . . . . . . . . . 1501 Romine v. Johnson Controls, Inc., 224 Cal.App.4th 990,
Robertson v. Fleetwood Travel Trailers of California, 169 Cal.Rptr.3d 208 (2014). .406; 1200; 1203; 1208
Inc., 144 Cal.App.4th 785, 50 Cal.Rptr.3d 731 Romo v. Southern Pacific Transportation Co., 71
(2006) . . . . . . . . . . . . . . . . . . . . . . . 3201 Cal.App.3d 909, 139 Cal.Rptr. 787 (1977) . 800, 801;
Robertson v. Wentz, 187 Cal.App.3d 1281, 232 Cal.Rptr. 803; 805
634 (1986) . . . . . . . . . . . . . . . . . . . . . 428 Rondon v. Hennessy Industries, Inc, 247 Cal.App.4th
Robin v. Smith, 132 Cal.App.2d 288, 282 P.2d 135 1367, 202 Cal.Rptr.3d 773 (2016) . . . . . . . . 1205
(1955). . . . . . . . . . . . . . . . . . . . . . . .372 Rony v. Costa, 210 Cal.App.4th 746, 148 Cal.Rptr.3d 642
Robinson v. Lorillard Corp., 444 F.2d 791, 21 A.L.R. Fed. (2012) . . . . . . . . . . . . . . . . . . . . . . . 2002
453 (4th Cir. 1971) . . . . . . . . . . . . . . . . 2503 Rope v. Auto-Chlor System of Washington, Inc., 220
Robinson v. Magee, 9 Cal. 81 (1858) . . . . . . . . 303 Cal.App.4th 635, 163 Cal.Rptr.3d 392 (2013) . 2430;
Roby v. McKesson Corp., 47 Cal.4th 686, 101 2505; 2540; 2547; 4603
Cal.Rptr.3d 773, 219 P.3d 749 (2009) . . 2523; 3934; Rosa v. City of Seaside, 675 F.Supp.2d 1006 (N.D. Cal.
VF-3920 2009) . . . . . . . . . . . . . . . . . . . . . . . 1205
Roddenberry v. Roddenberry, 44 Cal.App.4th 634, 51 Rosales v. Depuy Ace Medical Co., 22 Cal.4th 279, 92
Cal.Rptr.2d 907 (1996) . . . . . . . . . . . . . . 1901 Cal.Rptr.2d 465, 991 P.2d 1256, 65 Cal. Comp. Cases
Rodgers v. Kemper Construction Co., 50 Cal.App.3d 608, 150 (2000). . . . . . . . . . . . . . . . . . . . .2804
124 Cal. Rptr. 143, 40 Cal. Comp. Cases 987 Rosales v. Thermex-Thermatron, Inc., 67 Cal.App.4th
(1975) . . . . . . . . . . . . . . . . . . . 3724; 5000 187, 78 Cal.Rptr.2d 861 (1998) . . . . . . . . . 3965
Rodney M., Conservatorship of, 50 Cal.App.4th 1266, 58 Roscoe Moss Co. v. Jenkins, 55 Cal.App.2d 369, 130 P.2d
Cal.Rptr.2d 513, 58 Cal. Rptr. 2d 513 (1996) . . 4012 477 (1942) . . . . . . . . . . . . . . . . . . . . . 328
Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Rose v. Royal Insurance Co. of America, 2 Cal.App.4th
Cal.Rptr. 765, 525 P.2d 669 (1974) . . . . . . . 3920 709, 3 Cal.Rptr.2d 483 (1991) . . . . . . . . . . 2360
Rodriguez v. Cty. of L.A., 891 F.3d 776 (9th Cir. Roseleaf Corp. v. Radis, 122 Cal.App.2d 196, 264 P.2d
2018) . . . . . . . . . . . . . . . . 3002; 3005; 3042 964 (1953) . . . . . . . . . . . . . . . . . . . . . 323
Rodriguez v. Department of Transportation, 21 Rosenbloom v. Hanour Corp., 66 Cal.App.4th 1477, 78
Cal.App.5th 947, 230 Cal.Rptr.3d 852 (2018) . .1123 Cal.Rptr.2d 686 (1998). . . . . . . . . . . . . . .461
Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259 (9th Rosencrans v. Dover Images, Ltd, 192 Cal.App.4th 1072,
Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 1246 122 Cal.Rptr.3d 22 (2011) . . . . . . . . . . 425; 451
Rodriguez v. McDonnell Douglas Corp., 87 Cal.App.3d Rosenfeld v. Abraham Joshua Heschel Day School, Inc.,
626, 151 Cal.Rptr. 399 (1978) . . . . . . . . . 3903C 226 Cal.App.4th 886, 172 Cal.Rptr.3d 465
Rodriguez; People v., 42 Cal.3d 730, 230 Cal.Rptr. 667, (2014) . . . . . . . . . . . . . . . . . . . . . . . 2526
726 P.2d 113 . . . . . . . . . . . . . . . . . . . 5016 Ross v. County of Riverside, 36 Cal.App.5th 580, 248
Roesch v. De Mota, 24 Cal.2d 563, 150 P.2d 422 Cal.Rptr.3d 696 (2019) . . . . . . . . . . . . . . 4603
(1944). . . . . . . . . . . . . . . . . . . . . . . .336 Ross v. Roberts, 166 Cal.Rptr.3d 359, 222 Cal.App.4th
Rogers v. Alvas, 160 Cal.App.3d 997, 207 Cal.Rptr. 60 677. . . . . . . . . . . . . . . . . .1803; 1805, 1806
(1984). . . . . . . . . . . . . . . . . . . . . . . .422 Rotary Club of Duarte v. Bd. of Directors, 178
Rogers v. County of Los Angeles, 198 Cal.App.4th 480, Cal.App.3d 1035, 224 Cal.Rptr. 213
130 Cal.Rptr.3d 350 (2011). . . . . . . . . . . .2600 (1986). . . . . . . . . . . . . . . . . . . .3060–3062
Rogers v. Foppiano, 23 Cal.App.2d 87, 72 P.2d 239 Rotea v. Izuel, 14 Cal.2d 605, 95 P.2d 927, 125 A.L.R.
(1937). . . . . . . . . . . . . . . . . . . . . . . .723 1424 (1939). . . . . . . . . . . . . . . . . . . . .370
TC-56
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Roth v. Rhodes, 25 Cal.App.4th 530, 30 Cal.Rptr.2d 706,
1994-1 Trade Cas. (CCH) P70612 (1994). . . .2202; S
3061; 3400, 3401; 3403; 3405, 3406; 3412
S.A. v. Maiden, 229 Cal.App.4th 27, 176 Cal.Rptr.3d 567
Rothschild v. Tyco Internat. (US), Inc., 83 Cal.App.4th
(2014) . . . . . . . . . . . . . . . . . . . . . . . 1520
488, 99 Cal.Rptr.2d 721 (2000) . . . . . . 4800, 4801
S. C. Anderson, Inc. v. Bank of America N.T. & S.A., 24
Roulet, Conservatorship of, 23 Cal.3d 219, 152 Cal.Rptr.
Cal.App.4th 529, 30 Cal.Rptr.2d 286 (1994) . 3903N;
425, 590 P.2d 1 (1979) . . . . . . . . . . 4005; 4012
4544
Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443
S. G. Borello & Sons, Inc., 48 Cal.3d 341, 256 Cal.Rptr.
P.2d 561, 32 A.L.R.3d 496 (1968) . 400; 1000, 1001;
543, 769 P.2d 399. . . . . . . . . . . . . . . . .3704
1003
Saari v. Jongordon Corp, 5 Cal.App.4th 797, 7
Roy Allan Slurry Seal, Inc. v. American Asphalt South,
Cal.Rptr.2d 82 (1992) . . . . . . . . . . . . . . . 350
Inc., 2 Cal.5th 505, 213 Cal.Rptr.3d 568, 388 P.3d 800,
213 Cal. Rptr. 3d 568 (2017). . . . . . . . . . .2202 Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 377
P.2d 889 (1963) . . . . . . . . . . . . . . . . . .2306
Royer v. Steinberg, 90 Cal.App.3d 490, 153 Cal.Rptr. 499
(1979) . . . . . . . . . . . . . . . . . . . . . . . 1721 Sabraw v. Kaplan, 211 Cal.App.2d 224, 27 Cal.Rptr. 81
(1962). . . . . . . . . . . . . . . . . . . . . . . .351
RSB Vineyards, LLC v. Orsi, 15 Cal.App.5th 1089, 223
Cal.Rptr.3d 458 (2017) . . . 1900; 1903; 1910; 3701 Sacramento, City of v. Superior Court, 131 Cal.App.3d
395, 182 Cal.Rptr. 443 (1982). . . . . . . . . . .730
Rubenstein v. The Gap, Inc., 14 Cal.App.5th 870, 222
Cal.Rptr.3d 397 (2017) . . . . . . . . . . . . . . 4700 Sacramento County Deputy Sheriffs’ Assn. v. County of
Sacramento, 51 Cal.App.4th 1468, 59 Cal.Rptr.2d 834
Rudnick v. McMillan, 25 Cal.App.4th 1183, 31
(1996) . . . . . . . . . . . . . . . . 3001; 3022, 3023
Cal.Rptr.2d 193 (1994) . . . . . . . . . . . . . . 1700
Saenz v. Whitewater Voyages, Inc., 226 Cal.App.3d 758,
Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal.App.4th
276 Cal.Rptr. 672 (1990) . . . . . . . . . . . . . 451
836, 181 Cal.Rptr.3d 781 (2014) . . . . . . . . . 380
Safeco Ins. Co. of Am. v. Superior Court, 71 Cal.App.4th
Ruiz v. Musclewood Investment Properties, LLC, 28
782, 84 Cal.Rptr.2d 43 (1999). . . . . . .2334; 2360
Cal.App.5th 15, 238 Cal.Rptr.3d 835, 238 Cal. Rptr.
3d 835 (2018). . . . . . . . . . . . . . . . . . .3070 Safeco Ins. Co. of America v. Parks, 170 Cal.App.4th
992, 88 Cal.Rptr.3d 730 (2009) . . . . . . . . . 2320
Ruiz v. Safeway, Inc., 209 Cal.App.4th 1455, 147
Cal.Rptr.3d 809 (2013). . . . . . . . . . . . . . .422 Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322, 146
Cal. Rptr. 550, 579 P.2d 441 (1978). . .1207B; 3800
Ruiz, 232 Cal.App.4th 836, 181 Cal.Rptr.3d 781 . . 380
Saffie v. Schmeling, 224 Cal.App.4th 563, 168
Ruiz Nunez v. FCA US LLC, 61 Cal.App.5th 385, 275
Cal.Rptr.3d 766 (2014) . . . . . . . . . . . . . . 4110
Cal.Rptr.3d 618 (2021) . . . . . . . . . . . . . . 3231
Sagonowsky v. More, 64 Cal.App.4th 122, 75 Cal.Rptr.2d
Russell v. Stanford Univ. Hosp., 15 Cal.4th 783, 64 Cal.
118 (1998) . . . . . . . . . . . . . . . . . 1500, 1501
Rptr. 2d 97, 937 P.2d 640 (1997) . . . . . . . . . 556
Salahutdin v. Valley of California, Inc., 24 Cal.App.4th
Russell v. Union Oil Co., 7 Cal.App.3d 110, 86 Cal.Rptr.
555, 29 Cal.Rptr.2d 463 (1994) . . 1924; 4101; 4107
424 (1970) . . . . . . . . . . . . . . . . . . . . . 309
Salas v. Department of Transportation, 198 Cal.App.4th
Russo v. Matson Navigation Co., 486 F.2d 1018, 38 Cal.
1058, 129 Cal.Rptr.3d 690 (2011) . . . . . . . . 1102
Comp. Cases 923 (9th Cir. 1973) . . . . . 2941, 2942
Salas v. Sierra Chemical Co., 59 Cal.4th 407, 173 Cal.
Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 67
Rptr. 3d 689, 327 P.3d 797, 79 Cal. Comp. Cases 782
Cal.Rptr.2d 16, 941 P.2d 1203 (1997) . . . . 430; 435
(2014) . . . . . . . . . . . . . . . . . . . . . . . 2506
Ryan v. Crown Castle NG Networks, Inc., 6 Cal.App.5th
Salazar v. Matejcek, 245 Cal.App.4th 634, 199
775, 211 Cal.Rptr.3d 743 (2016) . . . 361; 5012; VF-
Cal.Rptr.3d 705 (2016) . . . . . . 2002, 2003; 3903F
1902
Saldana v. Globe-Weis Systems Co., 233 Cal.App.3d
Ryan v. Real Estate of the Pacific, Inc., 32 Cal.App.5th
1505, 285 Cal.Rptr. 385, 56 Cal. Comp. Cases 577
637, 244 Cal.Rptr.3d 129 (2019) . . 600; 4107, 4108
(1991) . . . . . . . . . . . . . . . . . . . . . . . 2804
Rybicki v. Carlson, 216 Cal.App.4th 758, 157 Cal.Rptr.3d
Salem v. Superior Court, 211 Cal.App.3d 595, 259
660 (2013) . . . . . . . . . . . . . . . . . . . . . 427
Cal.Rptr. 447 (1989) . . . . . . . . . . . . . . . . 422
Ryburn v. Huff, 565 U.S. 469, 132 S.Ct. 987, 181 L.Ed.2d
Salgado v. County of L.A., 19 Cal.4th 629, 80
966 (2012). . . . . . . . . . . . . . . . . . . . .3027
Cal.Rptr.2d 46, 967 P.2d 585 (1998) . 3904A, 3904B;
Ryland v. Appelbaum, 70 Cal.App. 268, 233 P. 356
3905A; 3920–3922
(1924) . . . . . . . . . . . . . . . . . . . . . . . 4301
Salinas v. Martin, 166 Cal.App.4th 404, 82 Cal.Rptr.3d
Rystrom v. Sutter Butte Canal Co., 72 Cal.App. 518, 249
735 (2008) . . . . . . . . . . . . . . . . . 1002; 1006
P. 53 (1925) . . . . . . . . . . . . . . . . . . . 3903H
TC-57
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Salinas v. Souza & McCue Constr. Co., 66 Cal.2d 217, 57 San Francisco, City and County of v. Fair Employment
Cal.Rptr. 337, 424 P.2d 921 (1967) . . . . . . . 4501 and Housing Com., 191 Cal.App.3d 976, 236
Salisbury v. County of Orange, 131 Cal.App.4th 756, 31 Cal.Rptr. 716 (1987) . . . . . . . . 2502–2504; 2512
Cal.Rptr.3d 831 (2005). . . . . . . . . . . . . . .606 San Francisco, City and County of v. Superior Court, 31
Saller v. Crown Cork & Seal Co., Inc., 187 Cal.App.4th Cal.App.4th 45, 36 Cal.Rptr.2d 372 (1994). . . .908
1220, 115 Cal.Rptr.3d 151 (2010) . .1203–1205; VF- San Francisco, City and County of, 191 Cal.App.3d 976,
1201 236 Cal.Rptr. 716 . . . . . . . . . . . . . . . . .2504
Salton Community Services Dist. v. Southard, 256 San Francisco Unified School Dist. v. W. R. Grace & Co.,
Cal.App.2d 526, 64 Cal.Rptr. 246 (1967).4304, 4305 37 Cal.App.4th 1318, 44 Cal.Rptr.2d 305 (1995).454
Samson v. Transamerica Insurance Co., 30 Cal.3d 220, San Jose, City of v. Superior Court, 166 Cal.App.3d 695,
178 Cal.Rptr. 343, 636 P.2d 32 (1981). .2320; 2334, 212 Cal.Rptr. 661 (1985) . . . . . . . . . . . . . 730
2335 San Jose Construction, Inc. v. S.B.C.C., Inc., 155
Samuels v. Mix, 22 Cal.4th 1, 91 Cal.Rptr.2d 273, 989 Cal.App.4th 1528, 67 Cal.Rptr.3d 54 (2007) . . 2202;
P.2d 701 (1999) . . . . . . 555; 610, 611; 1925; 4421 4412; 4420
Samuelson v. Public Utilities Com., 36 Cal.2d 722, 227 San Luis Obispo, County of v. Bailey, 4 Cal.3d 518, 93
P.2d 256 (1951) . . . . . . . . . . . . . . . . . . 901 Cal.Rptr. 859, 483 P.2d 27 (1971) . . . . . . . . 3517
San Diego, City of v. Neumann, 6 Cal.4th 738, 25 San Mateo, County of v. Superior Court, 13 Cal.App.5th
Cal.Rptr.2d 480, 863 P.2d 725 (1993) . 3501; 3511A, 724, 221 Cal. Rptr. 3d 138 (2017) . . . . . . . . 1110
3511B Sanchez v. Hitachi Koki, Co., 217 Cal.App.4th 948, 158
San Diego, County of v. Cabrillo Lanes, Inc., 10 Cal.Rptr.3d 907, 78 Cal. Comp. Cases 851
Cal.App.4th 576, 12 Cal.Rptr.2d 613 (1992) . . 3507 (2013) . . . . . . . . . . . . . . . . . . . . . . . 1200
San Diego, County of v. Rancho Vista Del Mar, Inc., 16 Sanchez v. Kern Emergency Medical Transportation
Cal.App.4th 1046, 20 Cal.Rptr.2d 675 Corp., 8 Cal.App.5th 146, 213 Cal.Rptr.3d 830
(1993). . . . . . . . . . . . . . . . . . . .3501–3503 (2017) . . . . . . . . . . . . . . . . . . . . . . . 3927
San Diego County Water Authority v. Mireiter, 18 Sanchez v. Rodriguez, 226 Cal.App.2d 439, 38 Cal.Rptr.
Cal.App.4th 1808, 23 Cal.Rptr.2d 455 (1993). .3505 110 (1964) . . . . . . . . . . . . . . . . . . . . . 505
San Diego Gas & Electric Co., 228 Cal.App.4th 1280, Sanchez v. Strickland, 200 Cal.App.4th 758, 133
175 Cal.Rptr.3d 858 . . . . . . . . . . . . . . . 3502 Cal.Rptr.3d 342 (2011) . . . . . . . . . . . . . 3903A
San Diego Gas & Electric Co. v. Daley, 205 Cal.App.3d Sanchez v. Swinerton & Walberg Co., 47 Cal.App.4th
1334, 253 Cal. Rptr. 144 (1988). . . .3511A, 3511B 1461, 55 Cal.Rptr.2d 415 (1996). . . . . . . . .4552
San Diego Gas & Electric Co. v. Schmidt, 228 Sanchez v. Swissport, Inc., 213 Cal.App.4th 1331, 153
Cal.App.4th 1280, 175 Cal.Rptr.3d 858 (2014).3501, Cal.Rptr.3d 367 (2013) . . . . . . . . . . 2540, 2541
3502 Sanchez; People v., 63 Cal.4th 665, 204 Cal.Rptr.3d 102,
San Diego Gas & Electric Co. v. Superior Court, 13 374 P.3d 320 (2016) . . . . . . . 206; 219, 220; 4010
Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669 Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297, 115
(1996). . . . . . . . . . . . .2000, 2001; 2021, 2022 Cal.Rptr.3d 453 (2010) . . . . . . . 2500; 2540; 2570
San Diego Hospice v. County of San Diego, 31 Sanders v. American Broadcasting Co., 20 Cal.4th 907,
Cal.App.4th 1048, 37 Cal.Rptr.2d 501 (1995) . . 333 85 Cal.Rptr.2d 909, 978 P.2d 67 (1999) . . . . . 1800
San Diego Metropolitan Transit Development Bd. v. Sanders v. MacFarlane’s Candies, 119 Cal.App.2d 497,
Cushman, 53 Cal.App.4th 918, 62 Cal.Rptr.2d 121 259 P.2d 1010 (1953). . . . . . . . . . . . . . .1012
(1997) . . . . . . . . . . . . . . . . . . . 3502; 3515 Sanders v. Walsh, 219 Cal.App.4th 855, 162 Cal.Rptr.3d
San Diego Metropolitan Transit Development Bd. v. 188 (2013). . . . . . . . . . . . . . . . . . . . .1700
Handlery Hotel, Inc., 73 Cal.App.4th 517, 86 Sanders, 20 Cal.4th 907, 85 Cal.Rptr.2d 909, 978 P.2d
Cal.Rptr.2d 473 (1999) . . . . . . . . . . 3507; 3513 67 . . . . . . . . . . . . . . . . . . . . . . . . . 1800
San Diego Water Authority v. Mireiter, 18 Cal.App.4th Sandoval v. County of San Diego, 985 F.3d 657 (9th Cir.
1808, 23 Cal.Rptr.2d 455 (1993). . . . . . . . .3505 2021) . . . . . . . . . . . . . . . . . . . . . . . 3046
San Francisco Bay Area Rapid Transit Dist. v. Sandoval v. Cty. of Sonoma, 912 F.3d 509 (9th Cir.
McKeegan, 265 Cal.App.2d 263, 71 Cal.Rptr. 204 2018) . . . . . . . . . . . . . . . . . . . . . . . 3023
(1968) . . . . . . . . . . . . . . . . . . . . . . . 3508
Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d
San Francisco, City and County of v. Ballard, 136 1154 (9th Cir. 2014) . . . . . . . . . . . . 3020; 3027
Cal.App.4th 381, 39 Cal.Rptr.3d 1 (2006). . . .3066
Sandoval v. Merced Union High Sch., 2006 U.S. Dist.
San Francisco, City and County of v. Coyne, 168 LEXIS 28446 (E.D. Cal. 2006) . . . . . . . . . 3061
Cal.App.4th 1515, 86 Cal. Rptr. 3d 255 (2008) . 3513
TC-58
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Sandoval, 756 F.3d 1154. . . . . . . . . . . . . . .3027 Schellinger Brothers v. Cotter, 2 Cal.App.5th 984, 207
Sangha v. LaBarbera, 146 Cal.App.4th 79, 52 Cal.Rptr.3d Cal.Rptr.3d 82 (2016) . . . . . . . . . . . . 351; 356
640 (2006) . . . . . . . . . . . . . . . . . . . . . 606 Schep v. Capital One, N.A., 12 Cal.App.5th 1331, 220
Sangster v. Paetkau, 68 Cal.App.4th 151, 80 Cal.Rptr.2d Cal.Rptr.3d 408 (2017) . . . . . . . . . . 1723; 1730
66 (1998) . . . . . . . . . . . . . . . . . . . . . 1907 Schiernbeck v. Haight, 7 Cal.App.4th 869, 9 Cal.Rptr.2d
Santa Barbara, City of v. Superior Court, 41 Cal.4th 747, 716 (1992) . . . . . . . . . . . . . . . 3904A, 3904B
62 Cal. Rptr. 3d 527, 161 P.3d 1095 (2007) . . . 425; Schmidt v. Beckelman, 187 Cal.App.2d 462, 9 Cal.Rptr.
450B; 451 736 (1960) . . . . . . . . . . . . . . . . . . . . . 356
Santa Barbara Pistachio Ranch v. Chowchilla Water Dist., Schmidt v. Burlington Northern & Santa Fe Ry., 605 F.3d
88 Cal.App.4th 439, 105 Cal.Rptr.2d 856 686 (9th Cir. 2010). . . . . . . . . . . . .2923, 2924
(2001). . . . . . . . . . . . . . . . . . . . . . .3903I Schmidt v. Citibank, N.A, 28 Cal.App.5th 1109, 239
Santa Clara County Flood Control and Water Cal.Rptr.3d 648 (2018) . . . . . . . . . . . . . . 4910
Conservation Dist. v. Freitas, 177 Cal.App.2d 264, 2 Schmitt v. Henderson, 1 Cal.3d 460, 82 Cal.Rptr 502, 462
Cal.Rptr. 129 (1960) . . . . . . . . . . . . . . . . 221 P.2d 30 (1969) . . . . . . . . . . . . . . . . . . . 710
Santa Cruz Poultry, Inc. v. Superior Court, 194 Schnittger v. Rose, 139 Cal. 656, 73 P. 449
Cal.App.3d 575, 239 Cal.Rptr. 578, 52 Cal. Comp. (1903) . . . . . . . . . . . . . . . . . . . . . . . 4304
Cases 429, 239 Cal. Rptr. 578 (1987) . . . . . . 2800 Schonfeldt v. State of California, 61 Cal.App.4th 1462,
Santiago v. Firestone Tire & Rubber Co., 224 Cal.App.3d 72 Cal.Rptr.2d 464 (1998) . . . . . . . . . . . . 1102
1318, 274 Cal.Rptr. 576, 55 Cal. Comp. Cases 438 Schreidel v. American Honda Motor Co., 34 Cal.App.4th
(1990) . . . . . . . . . . . . . . . . . . . . . . . 2802 1242, 40 Cal.Rptr.2d 576 (1995). .3201; 3204; 3244
Sarchett v. Blue Shield of California, 43 Cal.3d 1, 233 Schultz v. Harney, 27 Cal.App.4th 1611, 33 Cal.Rptr.2d
Cal.Rptr. 76, 729 P.2d 267 (1987) . . . . . . . . 2333 276 (1994) . . . . . . . . . . . . . . . . . . . . . 370
Sargent Fletcher, Inc. v. Able Corp., 110 Cal.App.4th Schultz v. Mathias, 3 Cal.App.3d 904, 83 Cal.Rptr. 888
1658, 3 Cal.Rptr.3d 279 (2003) . . . . . . 4401; 4407 (1970). . . . . . . . . . . . . . . . . . . . . . . .452
Sargon Enterprises, Inc. v. University of Southern Schulz v. Neovi Data Corp., 152 Cal.App.4th 86, 60
California, 55 Cal.4th 747, 149 Cal. Rptr. 3d 614, 288 Cal.Rptr.3d 810 (2007) . . . . . . . . . . . . . . 3610
P.3d 1237 (2012) . . . . . 219; 221; 352, 353; 3903N
Schwartz v. Helms Bakery, Ltd., 67 Cal.2d 232, 60
Sauer v. Burlington Northern Railroad Co., 106 F.3d 1490 Cal.Rptr. 510, 430 P.2d 68 (1967). . . . . . . . .412
(10th Cir. 1996). . . . . . . . . . . . . . . . . .2905
Schweiger v. Superior Court of Alameda County, 3
Savage v. Pacific Gas & Electric Co., 21 Cal.App.4th Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97
434, 26 Cal.Rptr.2d 305 (1993). . .1702–1705; 1707 (1970) . . . . . . . . . . . . . . . . 4321, 4322; 4326
Savaikie v. Kaiser Foundation Hospitals, 52 Cal.App.5th Schwetz v. Minnerly, 220 Cal.App.3d 296, 269 Cal.Rptr.
223, 265 Cal.Rptr.3d 92 (2020) . . . . . . . . . 3725 417 (1990). . . . . . . . . . . . . . . . . . . . .4551
Saville v. Sierra College, 133 Cal.App.4th 857, 36 Sciarratta v. U.S. Bank National Assn, 247 Cal.App.4th
Cal.Rptr.3d 515 (2005). . . . . . . . . . . . . . .470 552, 202 Cal.Rptr.3d 219 (2016) . . . . . 4920, 4921
Sawday v. Vista Irrigation Dist., 64 Cal.2d 833, 52 Scofield v. Critical Air Medicine, Inc., 45 Cal.App.4th
Cal.Rptr. 1, 415 P.2d 816 (1966) . . . . . . . . . 319 990, 52 Cal.Rptr.2d 915 (1996) . . . . . . . . . 1400
Saxena v. Goffney, 159 Cal.App.4th 316, 71 Cal.Rptr.3d Scotch v. Art Institute of California, 173 Cal. App. 4th
469 (2008). . . . . . . . . . . . . .530A, 530B; 532 986, 93 Cal. Rptr. 3d 338 (2009) . . . . . 2540; 2546
Saxer v. Philip Morris, Inc., 54 Cal.App.3d 7, 126 Scott v. C. R. Bard, Inc., 231 Cal.App.4th 763, 180
Cal.Rptr. 327 (1975) . . . . . . . . 3400–3405; 3420 Cal.Rptr.3d 479 (2014) . . . . . . . . . . . 406; 450C
SC Manufactured Homes, Inc. v. Liebert, 162 Scott v. County of Los Angeles, 27 Cal.App.4th 125, 32
Cal.App.4th 68, 76 Cal.Rptr.3d 73 (2008). . . .3420 Cal.Rptr.2d 643 (1994). . . . . . . . . . . . . . .423
Scally v. Pacific Gas and Electric Co., 23 Cal.App.3d Scott v. Cty. of San Bernardino, 903 F.3d 943 (9th Cir.
806, 100 Cal.Rptr. 501 (1972). . . . . . . . . . .416 2018) . . . . . . . . . . . . . . . . . . . . . . . 3023
SCC Acquisitions, Inc. v. Central Pacific Bank, 207 Scott v. Ford Motor Co, 224 Cal.App.4th 1492, 169
Cal.App.4th 859, 143 Cal.Rptr.3d 711 (2012) . .1901 Cal.Rptr.3d 823 (2014) . . . . . . . . . . . . . . 1244
Schaffield v. Abboud, 15 Cal.App.4th 1133, 19 Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167
Cal.Rptr.2d 205 (1993). . . . . . . . . . . . . . .422 L.Ed.2d 686 (2007). . . . . . . . . . . . . . . .3020
Scheff v. Roberts, 35 Cal.2d 10, 215 P.2d 925 Scott v. Pac. Gas & Elec. Co., 11 Cal.4th 454, 46
(1950). . . . . . . . . . . . . . . . . . . . . . . .720 Cal.Rptr.2d 427, 904 P.2d 834 (1995) . . 2401; 2403;
Scheiding v. General Motors Corp., 22 Cal.4th 471, 93 2406
Cal.Rptr.2d 342, 993 P.2d 996 (2000) . . . . . . 2920
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Scott v. Phoenix Schools, Inc., 175 Cal.App.4th 702, 96 Settimo Associates v. Environ Systems, Inc., 14
Cal.Rptr.3d 159 (2009) . . . . . . . . . . . . . . 2430 Cal.App.4th 842, 17 Cal.Rptr.2d 757 (1993) . . 2202;
Scott v. Rayhrer, 185 Cal.App.4th 1535, 111 Cal. Rptr. 3d 2204
36 (2010) . . . . . . . . . . . . . . . . . . . . . . 501 Seubert v. McKesson Corp., 223 Cal.App.3d 1514, 273
Scott v. Texaco, Inc., 239 Cal.App.2d 431, 48 Cal.Rptr. Cal.Rptr. 296 (1990). . . . . . . . . . . .2424; 2710
785 (1966) . . . . . . . . . . . . . . . . . . 453; 707 Sexton v. Brooks, 39 Cal.2d 153, 245 P.2d 496
Scott, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d (1952) . . . . . . . . . . . . . . . . . . . . . . . 1007
686. . . . . . . . . . . . . . . . . . . . . . . . .3020 Shade Foods, Inc. v. Innovative Products Sales &
Scottsdale Ins. Co. v. MV Transportation, 36 Cal.4th 643, Marketing, Inc., 78 Cal.App.4th 847, 93 Cal.Rptr.2d
31 Cal.Rptr.3d 147, 115 P.3d 460 (2005) . . . . 2351 364 (2000). . . . . . . . . . . . . .1233; 2332; 2336
Seaber v. Hotel Del Coronado, 1 Cal.App.4th 481, 2 Shaffer v. Debbas, 17 Cal.App.4th 33, 21 Cal.Rptr.2d 110
Cal.Rptr.2d 405 (1991) . . . . . . . . . . . . . . 1008 (1993) . . . . . . . . . . . . . . . . . 358; 456; 3931
Searcy v. Hemet Unified School Dist., 177 Cal.App.3d Shaolian v. Safeco Insurance Co., 71 Cal.App.4th 268, 83
792, 223 Cal.Rptr. 206 (1986) . . . . . . . . . . 1101 Cal.Rptr.2d 702 (1999) . . . . . . . . . . . . . . 2360
Sears v. Morrison, 76 Cal.App.4th 577, 90 Cal.Rptr.2d Shaoxing City Maolong Wuzhong Down Products, Ltd. v.
528 (1999) . . . . . . . . . . . . . . . . . . . . . 453 Keehn & Associates, APC, 238 Cal.App.4th 1031, 190
Secci v. United Independent Taxi Drivers, Inc., 8 Cal. Cal. Rptr. 3d 90 (2015). . . . . . . . . . . .610, 611
App. 5th 846, 214 Cal. Rptr. 3d 379, 82 Cal. Comp. Shapiro v. Sutherland, 64 Cal.App.4th 1534, 76
Cases 192 (2017) . . . . . . . . . . . . . . . . . 3705 Cal.Rptr.2d 101 (1998) . . . . . . . . . . 1906; 1910
Secretary of Housing & Urban Dev. v. Layfield, 88 Sharp v. Cty. of Orange, 871 F.3d 901 (9th Cir.
Cal.App.3d Supp. 28, 152 Cal.Rptr. 342 (1978).4320 2017) . . . . . . . . . . . . . . . . . . . . . . . 3020
Seeley v. Seymour, 190 Cal.App.3d 844, 237 Cal.Rptr. Sharpe; People v., 10 Cal.App.5th 741, 216 Cal.Rptr.3d
282 (1987). . . . . . . . . . . . . . . . . . . . .1730 744 (2017) . . . . . . . . . . . . . . . . . . . . 3903J
Seibert v. City of San Jose, 247 Cal.App.4th 1027, 202 Shaw v. Superior Court, 2 Cal.5th 983, 216 Cal. Rptr. 3d
Cal.Rptr.3d 890 (2016). . . . . . . . . . . . . . .206 643, 393 P.3d 98 . . . . . . . . . . . . . . . . . 4606
Selby Constructors v. McCarthy, 91 Cal.App.3d 517, 154 Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 254
Cal.Rptr. 164 (1979) . . . . . . . . . . . . . . . . 303 Cal.Rptr. 336, 765 P.2d 498 (1989). . . .1500–1502;
Self v. General Motors Corp., 42 Cal.App.3d 1, 116 1511; 1530
Cal.Rptr. 575 (1974) . . . . . . . . . . . . . . . . 432 Shell v. Schmidt, 164 Cal.App.2d 350, 330 P.2d 817
Selger v. Steven Brothers, Inc., 222 Cal.App.3d 1585, (1958). . . . . . . . . . . . . . . . . . . .4530, 4531
272 Cal.Rptr. 544 (1990) . . . . . . . . . 1007, 1008 Shepherd v. Walley, 28 Cal.App.3d 1079, 105 Cal.Rptr.
Selleck v. Globe Int’l, Inc., 166 Cal.App.3d 1123, 212 387 (1972). . . . . . . . . . . . . . . . . .202; 3926
Cal.Rptr. 838 (1985) . . . . . . . . 1703; 1705; 1820 Sheridan v. Touchstone Television Productions, LLC, 241
Semler v. General Electric Capital Corp., 196 Cal.App.4th 508, 193 Cal.Rptr.3d 811 (2015) . .4605
Cal.App.4th 1380, 127 Cal.Rptr.3d 794 (2011) .3060, Sherman v. Hennessy Industries, Inc., 237 Cal.App.4th
3061 1133, 188 Cal.Rptr.3d 769 (2015) . . . . . . . . 1205
Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 Sheward v. Virtue, 20 Cal.2d 410, 126 P.2d 345
A.L.R.2d 124 (1955). . . . . . . . . . . . . . . .510 (1942). . . . . . . . . . . . . . . . . . . .1220, 1221
Sequoia Vacuum Systems v. Stransky, 229 Cal.App.2d Shiffer v. CBS Corp., 240 Cal.App.4th 246, 192
281, 40 Cal.Rptr. 203 (1964). . . . . . . . . . .4102 Cal.Rptr.3d 346 (2015). . . . . . . . . . . . . . .435
Serri v. Santa Clara University, 226 Cal.App.4th 830, 172 Shih v. Starbucks Corp., 53 Cal.App.5th 1063, 267
Cal.Rptr.3d 732 (2014) . . . . . . . 2404, 2405; 2523 Cal.Rptr.3d 919 (2020) . . . . . . . . . . . . . . 1201
Service by Medallion, Inc. v. Clorox Co., 44 Cal.App.4th Shin v. Ahn, 42 Cal.4th 482, 64 Cal. Rptr. 3d 803, 165
1807, 52 Cal.Rptr.2d 650, 152 L.R.R.M. (BNA) 2500 P.3d 581 (2007) . . . . . . . . . . . . . . . .470–472
(1996) . . . . . . . . . . . . . . . . . . . . . . . 1900 Shively v. Bozanich, 31 Cal.4th 1230, 7 Cal.Rptr.3d 576,
Service Employees Internat. Union, Local 193, AFL-CIO 80 P.3d 676 (2003) . . . . . . . . . . . . . . . . 1722
v. Hollywood Park, Inc., 149 Cal.App.3d 745, 197 Shiver v. Laramee, 24 Cal.App.5th 395, 234 Cal.Rptr.3d
Cal.Rptr. 316 (1983) . . . . . . . . . . . . . . . 2711 256 (2018) . . . . . . . . . . . . . . . . . . . . . 452
Sesler v. Ghumman, 219 Cal.App.3d 218, 268 Cal.Rptr. Shoemaker v. Myers, 2 Cal.App.4th 1407, 4 Cal.Rptr.2d
70 (1990) . . . . . . . . . . . . . . . . . . . . . . 704 203, 57 Cal. Comp. Cases 45 (1992) . . . . . . 2430
Setliff v. E. I. Du Pont de Nemours & Co, 32 Cal.App.4th Shook v. Beals, 96 Cal.App.2d 963, 217 P.2d 56
1525, 38 Cal.Rptr.2d 763 (1995) . . . . . . . . . 434 (1950) . . . . . . . . . . . . . . . . . . . . . . . 3712
TC-60
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Shopoff & Cavallo LLP v. Hyon, 167 Cal.App.4th 1489, Sims; People v., 5 Cal.4th 405, 20 Cal.Rptr.2d 537, 853
85 Cal.Rptr.3d 268 (2008) . . . . . . . . . . . . 2100 P.2d 992 (1993) . . . . . . . . . . . . . . . . . .5018
Shores v. Chip Steak Co., 130 Cal.App.2d 627, 279 P.2d Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163
595 (1955). . . . . . . . . . . . . . . . . . . . .1731 Cal.Rptr. 132, 607 P.2d 924 (1980). . . . .434; 3610
Shorter v. Baca, 895 F.3d 1176 (9th Cir. Singer v. Marx, 144 Cal.App.2d 637, 301 P.2d 440
2018) . . . . . . . . . . . . . . . . . . . . 3040–3043 (1956) . . . . . . . . . . . . . . . . . . . 1300; 1321
Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947, Singh v. Southland Stone, U.S.A., Inc., 186 Cal.App.4th
137 Cal.Rptr.3d 839 (2012) . . . . . . . . . . . 3066 338, 112 Cal.Rptr.3d 455 (2010). . . . . . . . .3934
Shuff v. Irwindale Trucking Co., 62 Cal.App.3d 180, 132 Singleton v. Singleton, 68 Cal.App.2d 681, 157 P.2d 886
Cal.Rptr. 897 (1976) . . . . . . . . . . . . . 413; 415 (1945) . . . . . . . . . . . . . . . . . . . . . . . 1510
Shulman v. Group W Productions, Inc., 18 Cal.4th 200, Singleton v. United States Gypsum Co., 140 Cal.App.4th
74 Cal.Rptr.2d 843, 955 P.2d 469 (1998) . . . . 1800, 1547, 45 Cal.Rptr.3d 597 (2006). . . . . . . .2521A
1801; 1806 Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78
SI 59 LLC v. Variel Warner Ventures, LLC, 29 S.Ct. 758, 2 L.Ed.2d 799 (1958). . . . . . . . .2901
Cal.App.5th 146, 239 Cal.Rptr.3d 788 (2018). .1903 Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 372
Siegel v. Anderson Homes, Inc., 118 Cal.App.4th 994, 13 P.2d 97 (1962) . . . . . . . . . . . . . . . . . . . 502
Cal.Rptr.3d 462 (2004) . . . . . . . . . . . . . . 2030 Sjosten; People v., 262 Cal.App.2d 539, 68 Cal.Rptr. 832
Sierra Club Found. v. Graham, 72 Cal.App.4th 1135, 85 (1968) . . . . . . . . . . . . . . . . . . . 1402; 1404
Cal.Rptr.2d 726 (1999) . . . 1500–1502; 1530; 3940; Skarbrevik v. Cohen, 231 Cal.App.3d 692, 282 Cal.Rptr.
3942, 3943; 3945; 3947; 3949 627 (1991). . . . . . . . . . . . . . . . . . . . .3602
Silas v. Arden, 213 Cal.App.4th 75, 152 Cal.Rptr.3d 255 Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir.
(2013) . . . . . . . . . . . . . . . . . . . . . . . 1501 2006) . . . . . . . . . . . . . . . . . . . . . . . 3050
Silberg v. Anderson, 50 Cal.3d 205, 266 Cal.Rptr. 638, Slaughter v. Friedman, 32 Cal.3d 149, 185 Cal.Rptr. 244,
786 P.2d 365 (1990) . . . . . . . . . . . . 1605; 1730 649 P.2d 886 (1982) . . . . . . . . 1701; 1703; 1705
Silbertson; People v., 41 Cal.3d 296, 221 Cal.Rptr. 152, Sleeper v. Woodmansee, 11 Cal.App.2d 595, 54 P.2d 519
709 P.2d 1321 (1985) . . . . . . . . . . . . 102; 5010 (1936). . . . . . . . . . . . . . . . . . . . . . . .723
Silva v. McCoy, 259 Cal.App.2d 256, 66 Cal.Rptr. 364 Smith v. Brown-Forman Distillers Corp., 196 Cal.App.3d
(1968) . . . . . . . . . . . . . . . . . . . . . . . 2422 503, 241 Cal.Rptr. 916 (1987) . . . . . . . . . 3903P
Silva v. Providence Hospital of Oakland, 14 Cal.2d 762, Smith v. Cap Concrete, Inc., 133 Cal.App.3d 769, 184
97 P.2d 798 (1939). . . . . . . . . . . . . . . . .337 Cal.Rptr. 308 (1982) . . . . . . . . . . . . . . . 2000
Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th Smith v. Covell, 100 Cal.App.3d 947, 161 Cal.Rptr. 377
210, 109 Cal.Rptr.3d 27 (2010). . . . . .4401, 4402; (1980) . . . . . . . . . . . . . 106; 3925; 5002; 5009
4405–4407 Smith v. Hill, 237 Cal.App.2d 374, 47 Cal.Rptr. 49
Silvio v. Ford Motor Co., 109 Cal.App.4th 1205, 135 (1965) . . . . . . . . . . . . . . . . . . . . . . 3903J
Cal.Rptr.2d 846 (2003) . . . . . . . . . . . . . . 3202 Smith v. Johe, 154 Cal.App.2d 508, 316 P.2d 688
Sim v. Weeks, 7 Cal.App.2d 28, 45 P.2d 350 (1957). . . . . . . . . . . . . . . . . . . . . . . .452
(1935). . . . . . . . . . . . . . . . . . . . . . . .505 Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 530
Simers v. Los Angeles Times Communications, LLC, 18 P.2d 589, 78 A.L.R.3d 231 (1975). . . . . .602, 603
Cal.App.5th 1248, 227 Cal. Rptr. 3d 695 Smith v. Lockheed Propulsion Co., 247 Cal.App.2d 774,
(2018). . . . . . . . . . . . .2431, 2432; 2509, 2510 56 Cal.Rptr. 128 (1967). . . . . . . . . . .460; 2001
Simmons v. Superior Court, 7 Cal.App.5th 1113, 212 Cal. Smith v. Mady, 146 Cal.App.3d 129, 194 Cal.Rptr. 42
Rptr. 3d 884 (2016). . . . . . . . . . . . . . . .3066 (1983). . . . . . . . . . . . . . . . . . . . . . . .357
Simmons v. Ware, 213 Cal.App.4th 1035, 153 Smith v. Maldonado, 72 Cal.App.4th 637, 85 Cal.Rptr.2d
Cal.Rptr.3d 178 (2013) . . . . . . . . . . . . . . 3712 397 (1999). . . . . . . . . . . . . .1700; 1702–1705
Simmons v. West Covina Medical Clinic, 212 Cal.App.3d Smith v. Westland Life Insurance Co, 15 Cal.3d 111, 123
696, 260 Cal.Rptr. 772 (1989) . . . . . . . . 512, 513 Cal.Rptr. 649, 539 P.2d 433 (1975) . . . . . . . 2302
Simmons, 213 Cal.App.4th 1035, 153 Cal.Rptr.3d Smith v. Workers’ Comp. Appeals Bd., 69 Cal.2d 814, 73
178. . . . . . . . . . . . . . . . . . . . . . . . .3712 Cal.Rptr. 253, 447 P.2d 365, 33 Cal. Comp. Cases 771
Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal.4th (1968) . . . . . . . . . . . . . . . . . . . . . . . 3725
1159, 29 Cal.Rptr.3d 379, 113 P.3d 63, 29 Cal. Rptr. Smith, Conservatorship of, 187 Cal.App.3d 903, 232
3d 379 (2005) . 3940; 3942, 3943; 3945; 3947; 3949 Cal.Rptr. 277, 232 Cal. Rptr. 277 (1986) . . . . 4002
Simone v. Sabo, 37 Cal.2d 253, 231 P.2d 19 (1951).508
TC-61
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Smoketree-Lake Murray, Ltd. v. Mills Concrete Southern California Acoustics Co., Inc. v. C. V. Holder,
Construction Co., 234 Cal.App.3d 1724, 286 Cal.Rptr. Inc., 71 Cal.2d 719, 79 Cal.Rptr. 319, 456 P.2d 975
435 (1991) . . . . . . . . . . . . . . . . . . . . . 100 (1969). . . . . . . . . . . . . . . . . . . . . . . .310
Snow v. A. H. Robins Co., 165 Cal.App.3d 120, 211 Southern California Edison Co. v. Superior Court, 37
Cal.Rptr. 271 (1985) . . . . . . . . . . . . . . . 1925 Cal.App.4th 839, 44 Cal.Rptr.2d 227 (1995) . . . 318
Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012) . 3041 Southern California Enterprises, Inc. v. D. N. & E. Walter
Snyder v. Michael’s Stores, Inc., 16 Cal.4th 991, 68 & Co., 78 Cal.App.2d 750, 178 P.2d 785
Cal.Rptr.2d 476, 945 P.2d 781, 62 Cal. Comp. Cases (1947) . . . . . . . . . . . . . . . . . . . . . . . 4510
1351 (1997) . . . . . . . . . . . . . . . . . . . . 2800 Southern California Gas Leak Cases, 7 Cal.5th 391, 247
Snyder v. Southern California Edison Co, 44 Cal.2d 793, Cal.Rptr.3d 632, 441 P.3d 881 (2019) . . . 400; 3900
285 P.2d 912 (1955) . . . . . . . . . . . . . . . 3713 Southern Pacific Transportation Co. v. Santa Fe Pacific
So v. Shin, 212 Cal.App.4th 652, 151 Cal.Rptr.3d 257 Pipelines, Inc., 74 Cal.App.4th 1232, 88 Cal.Rptr.2d
(2013) . . . . . . . . . . . . . 426; 530A; 1300, 1301 777 (1999) . . . . . . . . . . . . . . . . . . . . . 318
Soares v. City of Oakland, 9 Cal.App.4th 1822, 12 Southern Ry. Co. v. Welch, 247 F.2d 340 (6th Cir.
Cal.Rptr.2d 405, 57 Cal. Comp. Cases 711 1957) . . . . . . . . . . . . . . . . . . . . . . . 2902
(1992). . . . . . . . . . . . . . . . . . . .2801; 2811 Southers v. Savage, 191 Cal.App.2d 100, 12 Cal.Rptr.
Soldinger v. Northwest Airlines, Inc., 51 Cal.App.4th 470 (1961) . . . . . . . . . . . . . . . . . . . . . 213
345, 58 Cal.Rptr.2d 747, 153 L.R.R.M. (BNA) 3050 Souza & McCue Constr. Co. v. Superior Court of San
(1996). . . . . . . . . . . . . . . . . . . .2560, 2561 Benito County, 57 Cal.2d 508, 20 Cal.Rptr. 634, 370
Solgaard v. Guy F. Atkinson Co., 6 Cal.3d 361, 99 P.2d 338 (1962) . . . . . . . . . . . . . . . . . .4500
Cal.Rptr. 29, 491 P.2d 821, 36 Cal. Comp. Cases 971 Souza; People v., 9 Cal.4th 224, 36 Cal.Rptr.2d 569, 885
(1971). . . . . . . . . . . . . . . . . . . . . . . .453 P.2d 982 (1994) . . . . . . . . . . . . . . . . . .1408
Solis v. County of Contra Costa, 251 Cal.App.2d 844, 60 Spann v. Ballesty, 276 Cal.App.2d 754, 81 Cal.Rptr. 229
Cal.Rptr. 99 (1967) . . . . . . . . . . . . . . . 3903H (1969). . . . . . . . . . . . . . . . . . . . . . . .710
Solis v. Kirkwood Resort Co., 94 Cal. App. 4th 354, 114 Spearin; United States v., 248 U.S. 132, 39 S.Ct. 59, 63
Cal. Rptr. 2d 265 . . . . . . . . . . . . . . . 470; 472 L.Ed. 166, 54 Ct. Cl. 187 (1918) . . . . . . . . 4500
Sommer v. Gabor, 40 Cal.App.4th 1455, 48 Cal.Rptr.2d Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613
235 (1995). . . . . . . . . . . . . .1700; 1702; 1704 (1957) . . . . . . . . . . . . . . . . . . . . . . . 1520
Sommers v. Van Der Linden, 24 Cal.App.2d 375, 75 P.2d Spencer v. Harmon Enterprises, Inc., 234 Cal.App.2d
83 (1938) . . . . . . . . . . . . . . . . . . . . . . 722 614, 44 Cal.Rptr. 683 (1965). . . . . . . . . . .1730
Sonoma Media Investments, LLC v. Superior Court, 34 Spencer v. Peters, 857 F.3d 789 (9th Cir. 2017) . . 3052
Cal.App.5th 24, 247 Cal.Rptr.3d 5 (2019). . . .1720 Spendlove v. Pacific Electric Ry. Co., 30 Cal.2d 632, 184
Sorensen v. Costa, 32 Cal.2d 453, 196 P.2d 900 P.2d 873 (1947) . . . . . . . . . . . . . . . . . . 806
(1948) . . . . . . . . . . . . . . . . . . . . . . . 4900 Spinelli v. Tallcott, 272 Cal.App.2d 589, 77 Cal.Rptr. 481
Soria v. Univision Radio Los Angeles, Inc., 5 (1969) . . . . . . . . . . . . . . . . . . . . . . 3903H
Cal.App.5th 570, 210 Cal.Rptr.3d 59 (2016) . . 2540, Spitzer v. Good Guys, Inc., 80 Cal.App.4th 1376, 96
2541; 2600; 2602; 2620 Cal.Rptr.2d 236 (2000) . . . . . . . . . . . . . . 2542
Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. Spott Electrical Co. v. Industrial Indemnity Co., 30
2006) . . . . . . . . . . . . . . . . . . . . . . . 3430 Cal.App.3d 797, 106 Cal.Rptr. 710 (1973) . . . 2301
Sosin v. Richardson, 210 Cal.App.2d 258, 26 Cal.Rptr. Spradlin v. Cox, 201 Cal.App.3d 799, 247 Cal.Rptr. 347
610 (1962) . . . . . . . . . . . . . . . . . . . . . 323 (1988) . . . . . . . . . . . . . . . . . . . . . . . 2800
Soto v. BorgWarner Morse TEC Inc., 239 Cal.App.4th Sprague v. Equifax, Inc., 166 Cal.App.3d 1012, 213
165, 191 Cal.Rptr.3d 263 (2015) . . 435; 3921; 3940; Cal.Rptr. 69 (1985). . . . . . . . . . . . . . . . .204
3942, 3943; 3945; 3947; 3949 Sprecher v. Adamson Companies, 30 Cal.3d 358, 178
Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260, Cal.Rptr. 783, 636 P.2d 1121 (1981). . . . . . .1001
46 Cal.Rptr.3d 638, 139 P.3d 30 (2006) . . . . . 1501 Spriesterbach v. Holland, 215 Cal.App.4th 255, 155
Soule v. GM Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d 607, Cal.Rptr.3d 306 (2013). . . . . . . . . . . .418; 701
882 P.2d 298 (1994) . . . 202; 430; 432; 1001; 1003; Springer v. Reimers, 4 Cal.App.3d 325, 84 Cal.Rptr. 486,
1200, 1201; 1203, 1204; 3705; 3927, 3928 35 Cal. Comp. Cases 664 (1970) . . . . . . . . . 411
South Bay Irrigation Dist. v. California-American Water Springmeyer v. Ford Motor Co., 60 Cal.App.4th 1541, 71
Co., 61 Cal.App.3d 944, 133 Cal.Rptr. 166 Cal.Rptr.2d 190 (1998) . . . . . . . . . . . . . . 1223
(1976) . . . . . . . . . . . . . . . . . . . . . . . 3506
Spurgeon v. Drumheller, 174 Cal.App.3d 659, 220
South San Francisco, City of v. Mayer, 67 Cal.App.4th Cal.Rptr. 195 (1985) . . . . . . . . . . . . . . . . 357
1350, 79 Cal.Rptr.2d 704 (1998). . . . . . . . .3508
TC-62
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Squaw Valley Ski Corporation v. Superior Court, 2 State Farm Mutual Automobile Insurance Co. v.
Cal.App.4th 1499, 3 Cal.Rptr.2d 897 Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d
(1992) . . . . . . . . . . . . . . . . . . . . . 900–902 585, 123 S. Ct. 1513, 155 L. Ed. 2d 585
Squires v. City of Eureka, 231 Cal.App.4th 577, 180 (2003). . . . . .3940; 3942, 3943; 3945; 3947; 3949
Cal.Rptr.3d 10 (2014). . . . . . . . . . . . . . .3003 State Farm Mutual Automobile Insurance Co. v. Superior
Srithong v. Total Investment Co., 23 Cal.App.4th 721, 28 Court, 228 Cal.App.3d 721, 279 Cal.Rptr. 116
Cal.Rptr.2d 672 (1994) . . . . . . . . . . 1006; 3713 (1991) . . . . . . . . . . . . . . . . . . . . . . . 2335
St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 State of (see name of state)
L.Ed.2d 262 (1968). . . . . . . . . . . . . . . .1700 Stathoulis v. City of Montebello, 164 Cal.App.4th 559, 78
St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 Cal.Rptr.3d 910 (2008) . . . . . . . . . . . . . . 1102
L.Ed.2d 107 (1988). . . . . . . . . . . . . . . .3004 Steelduct Co. v. Henger-Seltzer Co., 26 Cal.2d 634, 160
St. Louis, I.M. & S. Railway Co. v. Craft, 237 U.S. 648, P.2d 804 (1945) . . . . . . . . . . . . . . . . . .2422
35 S.Ct. 704, 59 L.Ed. 1160 (1915) . . . . . . . 2942 Steele v. Youthful Offender Parole Bd., 162 Cal.App.4th
St. Louis Southwestern Railway, 470 U.S. 409, 105 S.Ct. 1241, 76 Cal. Rptr. 3d 632 (2008) . . . . 2505; 2510
1347, 84 L.Ed.2d 303 . . . . . . . . . . . 2941, 2942 Stein v. Southern Cal. Edison Co., 7 Cal.App.4th 565, 8
Staats v. Vintner’s Golf Club, LLC, 25 Cal.App.5th 826, Cal.Rptr.2d 907 (1992) . . . . . . . . . . . . . . 3935
236 Cal.Rptr.3d 236 (2018) . . . . . 400; 1001; 1011 Steingart v. White, 198 Cal.App.3d 406, 243 Cal. Rptr.
Stalberg v. Western Title Ins. Co., 230 Cal.App.3d 1223, 678 (1988) . . . . . . . . . . . . . . . . . . . . . 556
282 Cal.Rptr. 43 (1991) . . . . . . . . . . . . . 4120 Steketee v. Lintz, 38 Cal.3d 46, 210 Cal.Rptr 781, 694
Stamps v. Superior Court, 136 Cal.App.4th 1441, 39 P.2d 1153 (1985) . . . . . . . . . . . . . . . . . . 555
Cal.Rptr.3d 706 (2006) . . . . . . . . . . . . . . 3066 Stephens & Stephens XII, LLC v. Fireman’s Fund Ins.
Stanchfield v. Hamer Toyota, Inc., 37 Cal.App.4th 1495, Co., 231 Cal.App.4th 1131, 180 Cal. Rptr. 3d 683
44 Cal.Rptr.2d 565 (1995) . . . . . . . . . . . . 3963 (2014) . . . . . . . . . . . . . . . . . . 303; 322–324
Stanford v. City of Ontario, 6 Cal.3d 870, 101 Cal.Rptr. Sterling Transit Co. v. Fair Employment Practice Com.,
97, 495 P.2d 425 (1972) . . . . . . . . . . . . . 1104 121 Cal.App.3d 791, 175 Cal.Rptr. 548 (1981) . 2544
Stanley v. Robert S. Odell and Co., 97 Cal.App.2d 521, Stevens v. Owens-Corning Fiberglas Corp., 49
218 P.2d 162 (1950) . . . . . . . . . . . . . . . . 311 Cal.App.4th 1645, 57 Cal.Rptr.2d 525, 57 Cal. Rptr.
Stanley, 35 Cal.App.4th 1070, 41 Cal.Rptr.2d 768 . 4106 2d 525 (1996) . 3940; 3942, 3943; 3945; 3947; 3949
Stanwyck v. Horne, 146 Cal.App.3d 450, 194 Cal.Rptr. Stevens Group Fund IV v. Sobrato Development Co., 1
228 (1983). . . . . . . . . . . . . . . . . . . . .1502 Cal.App.4th 886, 2 Cal. Rptr. 2d 460 (1991) . . . 356
Staples v. Hoefke, 189 Cal.App.3d 1397, 235 Cal.Rptr. Stevenson v. Stevenson, 36 Cal.App.2d 494, 97 P.2d 982
165 (1987). . . . . . . . . . . . . .2000; 2002; 2004 (1940). . . . . . . . . . . . . . . . . . . . . . . .332
Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) . . . . 3005 Stevenson v. Superior Court, 16 Cal.4th 880, 66
Cal.Rptr.2d 888, 941 P.2d 1157 (1997) . . 2430–2432
Starrh & Starrh Cotton Growers, 153 Cal.App.4th 583, 63
Cal.Rptr.3d 165 . . . . . . . . . 2030; 3903F, 3903G Stewart v. Cox, 55 Cal.2d 857, 13 Cal.Rptr. 521, 362 P.2d
345 (1961) . . . . . . . . . . . . . . . . . . . . . 432
Startup v. Pacific Electric Ry. Co., 29 Cal.2d 866, 180
P.2d 896 (1947). . . . . . . . . . . . . . . .805, 806 Stewart v. Superior Court, 16 Cal.App.5th 87, 224
Cal.Rptr.3d 219 (2017) . . . . . . . . . . 530A; 3103
State v. (see name of defendant)
Stewart v. Union Carbide Corp., 190 Cal.App.4th 23, 117
State Dep’t of Health Servs. v. Superior Court, 31 Cal.4th
Cal.Rptr.3d 791 (2010) . . . . . . . . . . . 406; 1244
1026, 6 Cal. Rptr. 3d 441, 79 P.3d 556
(2003) . . 2521A–2521C; 2522A–2522C; 2525, 2526 Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652
(1976). . . . . . . . . . . . . . . . . . . . . . . .511
State Dept. of State Hospitals v. Superior Court, 61 Cal.
4th 339, 188 Cal. Rptr. 3d 309, 349 P.3d 1013 Stillwell v. The Salvation Army, 167 Cal.App.4th 360, 84
(2015) . . . . . . . . . . . . . . . . . . 423; 430, 431 Cal.Rptr.3d 111 (2008) . . . . . . . . . . . . . . 2403
State ex rel. (see name of relator) Stoddart v. Peirce, 53 Cal.2d 105, 346 P.2d 774
(1959). . . . . . . . . . . . . . . . . . . . . . . .720
State Farm Fire & Casualty Co. v. Superior Court, 164
Cal.App.4th 317, 78 Cal.Rptr.3d 828 (2008) . . 2336 Stoetzl v. Department of Human Resources, 7 Cal.5th
718, 248 Cal.Rptr.3d 891, 443 P.3d 924 (2019).2700
State Farm Fire & Casualty Co. v. Von Der Lieth, 54
Cal.3d 1123, 2 Cal.Rptr.2d 183, 820 P.2d 285 Stoiber v. Honeychuck, 101 Cal.App.3d 903, 162
(1991) . . . . . . . . . . . . . . . . . . . 2303; 2306 Cal.Rptr. 194 (1980) . . . . . . . . 2020, 2021; 4326
State Farm Mut. Auto. Ins. Co. v. Department of Motor Stokes v. Muschinske, 34 Cal.App.5th 45, 245
Vehicles, 53 Cal.App.4th 1076, 62 Cal.Rptr.2d 178 Cal.Rptr.3d 764 (2019) . . . . . . . . . . . 105; 5001
(1997) . . . . . . . . . . . . . . . . . . . . . . . 2100
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Stolz v. KSFM 102 FM, 30 Cal.App.4th 195, 35 Sumrall v. Modern Alloys, Inc., 10 Cal.App.5th 961, 216
Cal.Rptr.2d 740 (1994). . . . . . . . . . .1702–1705 Cal. Rptr. 3d 848 (2017) . . . . . . . . . . . . . 3726
Stolz v. Wong Communications Ltd. Partnership, 25 Sun v. City of Oakland, 166 Cal.App.4th 1177, 83
Cal.App.4th 1811, 31 Cal.Rptr.2d 229 (1994) . .1520 Cal.Rptr.3d 372 (2008) . . . . . . . . . . . . . . 1102
Stone v. Center Trust Retail Properties, Inc., 163 Sun’n Sand, Inc. v. United California Bank, 21 Cal.3d
Cal.App.4th 608, 77 Cal.Rptr.3d 556 (2008) . . 1006 671, 148 Cal.Rptr. 329, 582 P.2d 920 (1978) . . 1925
Stonegate Homeowners Assn. v. Staben, 144 Cal.App.4th Sunbeam Constr. Co. v. Fisci, 2 Cal.App.3d 181, 82
740, 50 Cal.Rptr.3d 709 (2006) . . . . . . . . . 4510 Cal.Rptr. 446 (1969) . . . . . . . . . . . . 4510, 4511
Stoner v. Williams, 46 Cal.App.4th 986, 54 Cal.Rptr.2d Sunburst Bank v. Executive Life Insurance Co., 24
243 (1996) . . . . . . . . . . . . . . . . . 5012; 5017 Cal.App.4th 1156, 29 Cal.Rptr.2d 734 (1994) . . 326
Stout v. Turney, 22 Cal.3d 718, 150 Cal.Rptr. 637, 586 Superior Court of San Mateo County; State v., 263
P.2d 1228 (1978) . . . . . . . . . . 1920; 1922–1924 Cal.App.2d 396, 69 Cal. Rptr. 683 (1968). . . .1103
Strait v. Hale Construction Co., 26 Cal.App.3d 941, 103 Superior Dispatch, Inc. v. Insurance Corp. of New York,
Cal.Rptr. 487 (1972) . . . . . . . . . . . . . . . 3706 181 Cal.App.4th 175, 104 Cal.Rptr.3d 508
Stratton v. Hanning, 139 Cal.App.2d 723, 294 P.2d 66, 57 (2010). . . . . . . . . . . . . . . . . . . . . . . .456
A.L.R.2d 344 (1956). . . . . . . . . . . . . . . .374 Superior Motels, Inc. v. Rinn Motor Hotels, Inc., 195
Straughter v. State of California, 89 Cal.App.3d 102, 152 Cal.App.3d 1032, 241 Cal.Rptr. 487 (1987). . .4304
Cal.Rptr. 147 (1976) . . . . . . . . . . . . . . . 1104 Supermarket of Homes, Inc. v. San Fernando Valley Bd.
Strom v. Union Oil Co., 88 Cal.App.2d 78, 198 P.2d 347 of Realtors, 786 F.2d 1400, 230 U.S.P.Q. 316, 1986-1
(1948) . . . . . . . . . . . . . . . . . . . . . . . 4327 Trade Cas. (CCH) P67051 (9th Cir. 1986). . . .3406
Strubble v. United Services Automobile Assn., 35 The Supreme Court in Dart Industries, Inc. v.
Cal.App.3d 498, 110 Cal.Rptr. 828 (1973) . . . 2306 Commercial Union Insurance Co., 28 Cal.4th 1059,
Stueve Bros. Farms, LLC v. Berger Kahn, 222 124 Cal.Rptr.2d 142, 52 P.3d 79 (2002) . . . . . 2305
Cal.App.4th 303, 166 Cal. Rptr. 3d 116 (2013) . 610, Susan T., Conservatorship of, 8 Cal.4th 1005, 36
611; 1925; 3610; 4100; 4120 Cal.Rptr.2d 40, 884 P.2d 988 (1994). . . . . . .4000
Sturm v. Moyer, 32 Cal.App.5th 299, 243 Cal.Rptr.3d Swanberg v. O’Mectin, 157 Cal.App.3d 325, 203
556, 243 Cal. Rptr. 3d 556 (2019) . . . . . . . . 4204 Cal.Rptr. 701 (1984). . . . . . . . . . . .1003; 1007
Suastez v. Plastic Dress-Up Co., 31 Cal.3d 774, 183 Swanson v. County of Riverside, 36 Cal.App.5th 361,
Cal.Rptr. 846, 647 P.2d 122 (1982) . . . . . . . 2753 248 Cal.Rptr.3d 476 (2019) . . . . . . . . . . . 4000
Suburban Mobile Homes, Inc. v. AMFAC Communities, Swanson v. Morongo Unified School Dist., 232
Inc., 101 Cal.App.3d 532, 161 Cal.Rptr. 811, 1980-1 Cal.App.4th 954, 181 Cal.Rptr.3d 553 (2014) . 2500;
Trade Cas. (CCH) P63040 (1980) . 3300–3302; 3320; 2541; 2546
3420, 3421; 3423 Swat-Fame, Inc. v. Goldstein, 101 Cal.App.4th 613, 124
Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr.2d 556 (2002) . . . . . . . . . . . . . . 1511
Cal.Rptr. 241, 527 P.2d 865 (1974) . . . . 1500; 1504 Swedberg v. Christiana Community Builders, 175
Sullivan v. Matt, 130 Cal.App.2d 134, 278 P.2d 499, 20 Cal.App.3d 138, 220 Cal.Rptr. 544 (1985) . . . . 210
Cal. Comp. Cases 54 (1955) . . . . . . . 2900; 2920 Sweet v. Johnson, 169 Cal.App.2d 630, 337 P.2d 499
Suman v. BMW of North America, Inc., 23 Cal.App.4th (1959). . . . . . . . . . . . . . . . . . . . . . . .360
1, 28 Cal.Rptr.2d 133 (1994). . . . . . . . . . .3244 Swigart v. Bruno, 13 Cal.App.5th 529, 220 Cal. Rptr. 3d
Suman v. Superior Court, 39 Cal.App.4th 1309, 46 556 (2017) . . . . . . . . . . . . . . . . . . . . . 470
Cal.Rptr.2d 507 (1995) . . . . . . . . . . . . . . 3244 Syah v. Johnson, 247 Cal.App.2d 534, 55 Cal.Rptr. 741
Suman, 23 Cal.App.4th 1, 28 Cal.Rptr.2d 133 . . . 3244 (1966) . . . . . . . . . . . . . . . . . . . . .720; 724
Summers v. A.L. Gilbert Co, 69 Cal.App.4th 1155, 82 Symington, Conservatorship of, 209 Cal.App.3d 1464,
Cal.Rptr.2d 162 (1999) . . . . . . . . . . . . . . 3713 257 Cal.Rptr. 860 (1989) . . . . . . . . . 4000; 4002
Summers v. Missouri Pacific Railroad System, 132 F.3d Symonds v. Mercury Savings & Loan Assn., 225
599 (10th Cir. 1997) . . . . . . . . . . . . . . . 2921 Cal.App.3d 1458, 275 Cal.Rptr. 871 (1990). . .1605
Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) . 434 Syngenta Crop Protection, Inc. v. Helliker, 138
Summit Bank v. Rogers, 206 Cal.App.4th 669, 142 Cal.App.4th 1135, 42 Cal.Rptr.3d 191 (2006) . .4420
Cal.Rptr.3d 40 (2012). . . . . . . . . . . . . . .1707 Syverson v. Heitmann, 171 Cal.App.3d 106, 214
Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Cal.Rptr. 581 (1985) . . . . . . . . . . . . . . . 3926
Holdings, LLC, 205 Cal.App.4th 999, 141 Cal.Rptr.3d
109 (2012). . . . . . . . . . . . . . . . . . . . .1730
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Ted Jacob Engineering Group, Inc. v. The Ratcliff
T Architects, 187 Cal.App.4th 945, 114 Cal.Rptr.3d 644
(2010) . . . . . . . . . . . . . . . . . . . . . . . 4520
T.H. v. Novartis Pharmaceuticals Corp., 4 Cal.5th 145,
Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co.,
226 Cal.Rptr.3d 336, 407 P.3d 18 (2017) . . . . 1205;
129 Cal.App.4th 577, 28 Cal. Rptr. 3d 744
1222; 1903
(2004) . . . . . . . . . . . . . . . . . . . . . . . 1205
T. M. Cobb Co., Inc. v. Superior Court, 36 Cal.3d 273,
Temple v. De Mirjian, 51 Cal.App.2d 559, 125 P.2d 544
204 Cal.Rptr. 143, 682 P.2d 338 (1984). . . . . .308
(1942) . . . . . . . . . . . . . . . . . . . . . . . 3932
Talizin v. Oak Creek Riding Club, 176 Cal.App.2d 429, 1
Temple v. Velcro USA, Inc., 148 Cal.App.3d 1090, 196
Cal.Rptr. 514, 80 A.L.R.2d 878 (1959) . . . . . . 462
Cal.Rptr. 531 (1983) . . . . . . . . . . . .1241, 1242
Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164
Tenet Healthsystem Desert, Inc. v. Blue Cross of
Cal.Rptr. 839, 610 P.2d 1330, 115 L.R.R.M. (BNA)
California, 245 Cal.App.4th 821, 199 Cal.Rptr.3d 901
3119, 9 A.L.R.4th 314 (1980) . . . . . . . 2430–2432
(2016) . . . . . . . . . . . . . . . . . . . 1900; 1903
Tan v. Goddard, 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89
Terrell v. Key System, 69 Cal.App.2d 682, 159 P.2d 704
(1993). . . . . . . . . . . . . . . . . . . . . . . .471
(1945). . . . . . . . . . . . . . . . . . . . . . . .908
Tank; United States v., 200 F.3d 627 (2000) . . . . 3024
Tessier v. City of Newport Beach, 219 Cal.App.3d 310,
Tarabochia v. Adkins, 766 F.3d 1115 (9th Cir. 268 Cal.Rptr. 233 (1990) . . . . . . . . . . . . . 1110
2014) . . . . . . . . . . . . . . . . . . . . . . . 3021
Texas Co. v. Todd, 19 Cal.App.2d 174, 64 P.2d 1180
Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 (1937). . . . . . . . . . . . . . . . . . . . . . . .313
Cal.Rptr. 14, 551 P.2d 334 (1976) . 502; 503A, 503B;
Thee Aguila, Inc. v. Century Law Group, LLP, 37
3921, 3922
Cal.App.5th 22, 249 Cal.Rptr.3d 254 (2019) . . 3513
Tarkington v. California Unemployment Ins. Appeals
Theme Promotions, Inc. v. News Am. Mktg. FSI, 546
Bd., 172 Cal.App.4th 1494, 92 Cal.Rptr.3d 131
F.3d 991, 2008-2 Trade Cas. (CCH) P76265 (9th Cir.
(2009). . . . . . . . . . . . . . . . . . . . . . . .457
2008) . . . . . . . . . . . . . . . . . . . . 3413; 3430
Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir.
Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771
1995) . . . . . . . . . . . . . . . . . . . . . . . 1247
P.2d 814 (1989) . . . . . . . . . . . . . . . . . .1621
Tatone v. Chin Bing, 12 Cal.App.2d 543, 55 P.2d 933
Thomas v. Department of Corrections, 77 Cal.App.4th
(1936) . . . . . . . . . . . . . . . . . . . . . . 3903J
507, 91 Cal.Rptr.2d 770 (2000) . . . . . . . . . 2509
Taulbee v. EJ Distribution Corp, 35 Cal.App.5th 590, 247
Thomas v. Gates, 126 Cal. 1, 58 P. 315 (1899) . . . 203
Cal.Rptr.3d 538 (2019). . . . . . . . . . . .418; 420
Thomas v. Intermedics Orthopedics, Inc., 47 Cal.App.4th
Tavaglione v. Billings, 4 Cal.4th 1150, 17 Cal.Rptr.2d
957, 55 Cal.Rptr.2d 197 (1996) . . . . . . . . . . 510
608, 847 P.2d 574 (1993). . . . . . . . . . . . .3934
Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010) . 3040;
Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575
3043
(1966) . . . . . . . . . . . . . . . . . . . . . . . 2100
Thomas v. Seaside Memorial Hospital, 80 Cal.App.2d
Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.
841, 183 P.2d 288 (1947) . . . . . . . . . . . . . 514
Rptr. 561, 416 P.2d 793 (1966). . . . . . . . . .1005
Thomas v. Stenberg, 206 Cal.App.4th 654, 142
Taylor v. City of Los Angeles Dept. of Water & Power,
Cal.Rptr.3d 24 (2012) . . . . . . . . . . . . 461, 462
144 Cal.App.4th 1216, 51 Cal.Rptr.3d 206
Thomas, 47 Cal.App.4th 957, 55 Cal.Rptr.2d 197 . . 510
(2006) . . . . . . . . . . . . . . . . . . . . . . . 2527
Thomas, 206 Cal.App.4th 654, 142 Cal.Rptr.3d 24 . 462
Taylor v. Elliott Turbomachinery Co., Inc., 171
Cal.App.4th 564, 90 Cal.Rptr.3d 414 (2009) . . 1205 Thomas, 611 F.3d 1144 . . . . . . . . . . . . . . . 3043
Taylor v. Forte Hotels Int’l, 235 Cal.App.3d 1119, 1 Cal. Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir.
Rptr. 2d 189 (1991). . . . . . . . . . . . . . . .2100 1989) . . . . . . . . . . . . . . . . . . . . . . . 3002
Taylor v. John Crane, Inc., 113 Cal.App.4th 1063, 6 Thompson v. Occidental Life Insurance Co. of California,
Cal.Rptr.3d 695 (2003). . . . . . . . . . . . . . .406 9 Cal.3d 904, 109 Cal.Rptr. 473, 513 P.2d 353
(1973) . . . . . . . . . . . . . . . . . . . 2302; 2308
Taylor v. Johnston, 15 Cal.3d 130, 123 Cal.Rptr. 641, 539
P.2d 425 (1975) . . . . . . . . . . . . . . . . . . 324 Thompson v. Tracor Flight Systems, Inc., 86 Cal.App.4th
1156, 104 Cal. Rptr. 2d 95 (2001) . . . . . . . . 2506
Taylor v. Nabors Drilling USA, LP, 222 Cal.App.4th
1228, 166 Cal.Rptr.3d 676 (2014) . . . . . . . 2521A Thompson, 9 Cal.3d 904, 109 Cal.Rptr. 473, 513 P.2d
353. . . . . . . . . . . . . . . . . . . . . . . . .2308
Taylor v. Trimble, 13 Cal.App.5th 934, 220 Cal.Rptr.3d
741 (2017). . . . . . . . . . . . . . . . . . . . .1001 Thompson, 86 Cal.App.4th 1156, 104 Cal.Rptr.2d
95 . . . . . . . . . . . . . . . . . . . . . . . . . 2506
Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843,
52 L.Ed.2d 396 (1977) . . . . . . . . . . . . . . 2500
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TABLE OF CASES AS
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Thompson Pacific Construction, Inc. v. City of Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253,
Sunnyvale, 155 Cal.App.4th 525, 66 Cal.Rptr.3d 175 74 Cal.Rptr.2d 878, 955 P.2d 504, 63 Cal. Comp.
(2007) . . . . . . . . . . . . . . . . 4500, 4501; 4800 Cases 508 (1998) . . . . . . . . . . . . . . . . . 3708
Thompson; People v., 27 Cal.3d 303, 165 Cal.Rptr. 289, Tolstoy Constr. Co. v. Minter, 78 Cal.App.3d 665, 143
611 P.2d 883 (1980) . . . . . . . . . . . . . . . 1407 Cal.Rptr. 570 (1978) . . . . . . . . . . . . . . . 4524
Thomson v. Canyon, 198 Cal.App.4th 594, 129 Tonkin Constr. Co. v. County of Humboldt, 188
Cal.Rptr.3d 525 (2011) . . . . . . . . . . . 454; 4120 Cal.App.3d 828, 233 Cal.Rptr. 587 (1987) . . . 4502
Thor v. Superior Court, 5 Cal.4th 725, 21 Cal.Rptr.2d Tony C., In re, 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d
357, 855 P.2d 375 (1993) . . . . . . . . . . . . . 509 957 (1978). . . . . . . . . . . . . . . . . . . . .1408
Thornbrough v. Western Placer Unified School Dist., 223 Torres v. City of Los Angeles, 58 Cal.2d 35, 22 Cal.Rptr.
Cal.App.4th 169, 167 Cal.Rptr.3d 24 (2013) . . 2512 866, 372 P.2d 906 (1962) . . . . . . . . . . . . . 730
Thresher v. Lopez, 52 Cal.App. 219, 198 P. 419 Torres v. City of Madera, 648 F.3d 1119 (9th Cir.
(1921). . . . . . . . . . . . . . . . . . . . . . . .374 2011) . . . . . . . . . . . . . . . . . . . . . . . 3020
Thriftmart, Inc. v. Me & Tex, 123 Cal. App. 3d 751, 177 Torres v. Madrid, ___ U.S. ___, 141 S.Ct. 989, 209
Cal. Rptr. 24 (1981) . . . . . . . . . . . . . . . 4324 L.Ed.2d 190 (2021). . . . . . . . . . . . . . . .3020
Thrifty Payless, Inc. v. The Americana at Brand, LLC, Torres v. Parkhouse Tire Service, Inc., 26 Cal.4th 995,
218 Cal.App.4th 1230, 160 Cal.Rptr.3d 718 111 Cal.Rptr.2d 564, 30 P.3d 57, 66 Cal. Comp. Cases
(2013) . . . . . . . . . . . . . . . . . 325; 331; 1908 1036 (2001). . . . . . . . . . . . . . . . .2810–2812
Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 54 Torres v. Southern Pacific Co., 260 Cal.App.2d 757, 67
Cal.Rptr.2d 468 (1996) . . . 1900; 2101; 3931; 3961, Cal.Rptr. 428, 33 Cal. Comp. Cases 842
3962 (1968) . . . . . . . . . . . . . . . . . . . . . . . 2904
Thurston v. Midvale Corp., 39 Cal.App.5th 634, 252 Torres v. Xomox Corp., 49 Cal.App.4th 1, 56 Cal.Rptr.2d
Cal.Rptr.3d 292 (2019) . . . . . . . . . . . . . . 3060 455, 61 Cal. Comp. Cases 795 (1996) . . . . 1207A,
Tichinin v. City of Morgan Hill, 177 Cal.App.4th 1049, 1207B; 1245; 3965
99 Cal.Rptr.3d 661 (2009) . . . . . . . . . . . . 3050 Torres, 26 Cal.4th 995, 111 Cal.Rptr.2d 564, 30 P.3d
Tidwell Enterprises, Inc. v. Financial Pacific Ins. Co., 57 . . . . . . . . . . . . . . . . . . . . . . . . . 2811
Inc., 6 Cal.App.5th 100, 210 Cal.Rptr.3d 634 Torres, 49 Cal.App.4th 1, 56 Cal.Rptr.2d 455 . . 1207A,
(2016) . . . . . . . . . . . . . . . . . . . . . . . 2336 1207B; 1245
Tierstein v. Licht, 174 Cal.App.2d 835, 345 P.2d 341 Toste v. CalPortland Construction, 245 Cal.App.4th 362,
(1959) . . . . . . . . . . . . . . . . . . . . . . . 1224 199 Cal.Rptr.3d 522 (2016) . . . . . . . . . 418; 430
Tilkey v. Allstate Ins. Co., 56 Cal.App.5th 521, 270 Touchstone Television Productions v. Superior Court, 208
Cal.Rptr.3d 559 (2020) . . . . . . . . . . . . . . 1708 Cal.App.4th 676, 145 Cal.Rptr.3d 766 (2012) . 2430;
Tilley v. Schulte, 70 Cal.App.4th 79, 82 Cal.Rptr.2d 497, 4605
64 Cal. Comp. Cases 218 (1999) . . . . . . . . 503B Towery v. State of California, 14 Cal.App.5th 226, 221
Tillson v. Peters, 41 Cal.App.2d 671, 107 P.2d 434 Cal.Rptr.3d 692 (2017) . . . . . . . . . . . . . . 3066
(1940). . . . . . . . . . . . . . . . . . . . . . . .372 Town of (see name of town)
Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d Townsend v. Turk, 218 Cal.App.3d 278, 266 Cal.Rptr.
456 (1967) . . . . . . . . . . . . . . . . . 1802; 1820 821 (1990) . . . . . . . . . . . . . . . . . . 534, 535
Timed Out, LLC v. Youabian, Inc., 229 Cal.App.4th Trapani v. Holzer, 158 Cal.App.2d 1, 321 P.2d 803
1001, 177 Cal.Rptr.3d 773, 112 U.S.P.Q.2d 1073 (1958). . . . . . . . . . . . . . . . . . . . . . . .202
(2014) . . . . . . . . . . . . . . . . . . . . . . . 1803 Travelers Property Casualty Co. of America v. Charlotte
Ting v. U.S., 927 F.2d 1504 (9th Cir. 1991) . . . . 1406 Russe Holding, Inc., 207 Cal.App.4th 969, 144
Titan Corp. v. Aetna Casualty and Surety Co., 22 Cal.Rptr.3d 12 (2012). . . . . . . . . . . . . . .2336
Cal.App.4th 457, 27 Cal.Rptr.2d 476 (1994) . . . 317 Treadwell v. Nickel, 194 Cal. 243, 228 P. 25
Title Ins. Co. v. State Bd. of Equalization, 4 Cal.4th 715, (1924). . . . . . . . . . . . . . . . . . . . . . . .220
14 Cal.Rptr.2d 822, 842 P.2d 121 (1992) . . 370–374 Treadwell v. Whittier, 80 Cal. 574, 22 P. 266
Titus v. Bethlehem Steel Corp., 91 Cal.App.3d 372, 154 (1889). . . . . . . . . . . . . . . . . . . . . . . .903
Cal.Rptr. 122 (1979) . . . . . . . . . . . . . . . . 413 Trear v. Sills, 69 Cal.App.4th 1341, 82 Cal.Rptr.2d 281
Tognazzini v. San Luis Coastal Unified School Dist., 86 (1999) . . . . . . . . . . . . . . . . . . . . . . . 1520
Cal.App.4th 1053, 103 Cal.Rptr.2d 790 (2001) . 2800 Trejo v. Johnson & Johnson, 13 Cal.App.5th 110, 220
Tolan v. State of Califronia ex rel. Dept. of Cal. Rptr. 3d 127 (2017) . . . . . . 1203; 1222; 5012
Transportation, 100 Cal.App.3d 980, 161 Cal.Rptr. Trejo v. Maciel, 239 Cal.App.2d 487, 48 Cal.Rptr. 765,
307 (1979). . . . . . . . . . . . . . . . . . . . .1101 31 Cal. Comp. Cases 462 (1966) . . . . . 3723; 3726
TC-66
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Tretina v. Fitzpatrick & Assocs., 135 N.J. 349, 640 A.2d Turley v. Familian Corp., 18 Cal.App.5th 969, 227
788 (1994). . . . . . . . . . . . . . . . . . . . .4532 Cal.Rptr.3d 321, 227 Cal. Rptr. 3d 321 (2017) . . 435
Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) . . . 3001 Turnbull & Turnbull v. ARA Transportation, 219
Tribeca Companies, LLC v. First American Title Ins. Co., Cal.App.3d 811, 268 Cal.Rptr. 856, 1990-1 Trade Cas.
239 Cal.App.4th 1088, 192 Cal.Rptr.3d 354, 192 Cal. (CCH) P69073 (1990) . . . . 3300; 3302, 3303; 3306
Rptr. 3d 354 (2015) . . . . . . . . . . . . . . . . 303 Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 32
Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Cal.Rptr.2d 223, 876 P.2d 1022 (1994). .2401; 2431,
Duignan & Eisenberg, 216 Cal.App.3d 1139, 265 2432; 2510
Cal.Rptr. 330 (1989) . . . . . . . . . . . . . . . 2204 Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed.
Triscony v. Orr, 49 Cal. 612 (1875). . . . . . . . .2101 2d 64 (1987) . . . . . . . . . . . . . . . . 3040; 3043
Troester v. Starbucks Corp., 5 Cal.5th 829, 235 Turner v. Seterus, Inc., 27 Cal.App.5th 516, 238
Cal.Rptr.3d 820, 421 P.3d 1114 . . . . . . . . . 2700 Cal.Rptr.3d 528 (2018). . . . . . . .418; 4920, 4921
Trope v. Katz, 11 Cal.4th 274, 45 Cal.Rptr.2d 241, 902 Turner, 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d
P.2d 259 (1995) . . . . . . . . . . . . . . . . . .2030 1022 . . . . . . . . . . . . . . . . . 2401; 2432; 2510
Troy v. Superior Court, 186 Cal.App.3d 1006, 231 Turner, 27 Cal.App.5th 516, 238 Cal.Rptr.3d 528 . 4920
Cal.Rptr. 108 (1986) . . . . . . . . . . . . . . . . 216 Turpin v. Sortini, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643
Troyk v. Farmers Group, Inc., 171 Cal.App.4th 1305, 90 P.2d 954 (1982). . . . . . . . . . . . . . . .512, 513
Cal.Rptr.3d 589 (2009). . . . . . . . . . . . . . .303 Tuthill v. City of San Buenaventura, 167 Cal.Rptr.3d 820,
Truck Ins. Exchange v. Unigard Ins. Co., 79 Cal.App.4th 223 Cal.App.4th 1081 . . . . . . . . . . . . . . . 423
966, 94 Cal.Rptr.2d 516 (2000) . . . . . . . . . 2322 Tverberg v. Fillner Constr., Inc., 202 Cal.App.4th 1439,
Truestone, Inc. v. Simi West Industrial Park II, 163 136 Cal. Rptr. 3d 521, 77 Cal. Comp. Cases 166
Cal.App.3d 715, 209 Cal.Rptr. 757 (1984) . . . . 373 (2012) . . . . . . . . . . . . . . . . . . . . . . 1009B
Truhitte v. French Hospital, 128 Cal.App.3d 332, 180 TWA v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d
Cal.Rptr. 152 (1982) . . . . . . . . . . . . . . . . 510 113 (1977). . . . . . . . . . . . . . . . . . . . .2561
Trujillo v. North County Transit Dist., 63 Cal.App.4th Twin Coast Newspapers, Inc. v. Superior Court, 208
280, 73 Cal.Rptr.2d 596 (1998) . . . . . . . . . 2527 Cal.App.3d 656, 256 Cal.Rptr. 310 (1989) . . . 1709
Truman v. Thomas, 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 Twin Peaks Land Co. v. Briggs, 130 Cal.App.3d 587, 181
P.2d 902 (1980) . . . . . . . . . . 532; 534, 535; 550 Cal.Rptr. 25 (1982) . . . . . . . . . . . . . . . . 4901
Truman v. Vargas, 275 Cal.App.2d 976, 80 Cal.Rptr. 373 Twomey v. Mitchum, Jones & Templeton, Inc., 262
(1969). . . . . . . . . . . . . . . . . . . . . . . .712 Cal.App.2d 690, 69 Cal.Rptr. 222 (1968) . . . . 4101
Truman, 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 P.2d TXO Production Corp. v. Alliance Resources Corp., 509
902 . . . . . . . . . . . . . . . . . . . . . . . . . 532 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366, 126
Truong v. Glasser, 181 Cal.App.4th 102, 103 Cal.Rptr.3d O.&G.R. 576 (1993) . 3940; 3942, 3943; 3945; 3947;
811 (2009) . . . . . . . . . . . . . . . . . . 610, 611 3949
Tryer v. Ojai Valley School Dist., 9 Cal.App.4th 1476, 12 Tyco Industries, Inc. v. Superior Court, 164 Cal.App.3d
Cal.Rptr.2d 114 (1992) . . . . . . . . . . . . . . 3725 148, 211 Cal.Rptr. 540 (1985) . . . . . . . . . . 2710
Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir.
2012) . . . . . . . . . . . . . . . . . . . . 3001, 3002 U
Tucker v. CBS Radio Stations, Inc., 194 Cal.App.4th U.S. v. (see name of defendant)
1246, 124 Cal.Rptr.3d 245 (2011). . . . . . . . .453
UAS Management, Inc. v. Mater Misericordiae Hospital,
Tucker v. Lombardo, 47 Cal.2d 457, 303 P.2d 1041 169 Cal.App.4th 357, 87 Cal.Rptr.3d 81, 2009-1 Trade
(1956) . . . . . . . . . . . . . . . . . . . . . 401; 411 Cas. (CCH) P76487 (2008). . . . .3404; 3420, 3421
Tucker, 194 Cal.App.4th 1246, 124 Cal.Rptr.3d Uccello v. Laudenslayer, 44 Cal.App.3d 504, 118
245 . . . . . . . . . . . . . . . . . . . . . . . . . 453 Cal.Rptr. 741 (1975) . . . . . . . . . . . . . . . 1006
Tuderios v. Hertz Drivurself Stations, Inc., 70 Cal.App.2d Uecker & Assocs. v. Lei (In re San Jose Med. Mgmt.),
192, 160 P.2d 554 (1945) . . . . . . . . . . . . . 720 2007 Bankr. LEXIS 4829 (B.A.P. 9th Cir.
Tunkl v. Regents of Univ. of California, 60 Cal.2d 92, 32 2007) . . . . . . . . . . . . . . . . . . . . . . . 2421
Cal.Rptr. 33, 383 P.2d 441 (1963). . . . . . . . .451 Ukiah, City of v. Fones, 64 Cal.2d 104, 48 Cal.Rptr. 865,
Tur v. City of Los Angeles, 51 Cal.App.4th 897, 59 410 P.2d 369 (1966). . . . . . . . . . . . .336; 4522
Cal.Rptr.2d 470, 59 Cal. Rptr. 2d 470 (1996) . . 1503
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Unilab Corp. v. Angeles-IPA, 244 Cal.App.4th 622, 198 Valentine v. Baxter Healthcare Corp., 68 Cal.App.4th
Cal. Rptr. 3d 211 (2016). . . . . . . . . . . . . .305 1467, 81 Cal.Rptr.2d 252 (1999) . . . . . 1205; 1221
Unilogic, Inc. v. Burroughs Corp., 10 Cal.App.4th 612, Valentine v. Kaiser Foundation Hospitals, 194
12 Cal.Rptr. 2d 741, 12 Cal.Rptr.2d 741 Cal.App.2d 282, 15 Cal.Rptr. 26 (1961) . . . . . 502
(1992). . . . . . . . . . . . . . . . . . . .4409, 4410 Valle de Oro Bank v. Gamboa, 26 Cal.App.4th 1686, 32
United Parcel Service Wage & Hour Cases, 190 Cal.Rptr.2d 329 (1994) . . . . 358; 3930; 3961, 3962
Cal.App.4th 1001, 118 Cal.Rptr.3d 834. .2720, 2721 Vallejo Development Co. v. Beck Development Co., 24
United States v. (see name of defendant) Cal.App.4th 929, 29 Cal.Rptr.2d 669 (1994) . . 4560
United States Roofing, Inc. v. Credit Alliance Corp., 228 Valov v. Tank, 168 Cal.App.3d 867, 214 Cal.Rptr. 546
Cal.App.3d 1431, 279 Cal.Rptr. 533 (1991) . . 1231, (1985). . . . . . . . . . . . . . . . . . . .4302–4309
1232 Van Audenhove v. Perry, 11 Cal.App.5th 915, 217 Cal.
United Steelworkers of America v. Phelps Dodge Corp., Rptr. 3d 843 (2017). . . . . . . . . . . . . . . .1500
865 F.2d 1539, 130 L.R.R.M. (BNA) 2353 (9th Cir. Van Cise v. Lencioni, 106 Cal.App.2d 341, 235 P.2d 236
1989) . . . . . . . . . . . . . . . . . . . . 3022, 3023 (1951) . . . . . . . . . . . . . . . . . . . . . . . 5017
Universal Health Servs. v. United States ex rel. Escobar, Van de Kamp v. Bank of America, 204 Cal.App.3d 819,
579 U.S. 176, 136 S.Ct. 1989, 195 L.Ed.2d 348, ___ 251 Cal.Rptr. 530 (1988) . . . . . . . . . 4101–4103
U.S. ___ (2016). . . . . . . . . . . . . . . . . .4801 Van Den Eikhof v. Hocker, 87 Cal.App.3d 900, 151
University of Southern California v. Superior Court, 30 Cal.Rptr. 456 (1978) . . . . . . . . . . . . . . . . 722
Cal.App.5th 429, 241 Cal.Rptr.3d 616 (2018) . . 400; Van Horn v. Watson, 45 Cal.4th 322, 86 Cal.Rptr.3d 350,
450A; 450C; 1002 197 P.3d 164 (2008) . . . . . . . . . . . 450A, 450B
Uniwill v. City of Los Angeles, 124 Cal.App.4th 537, 21 Van Meter v. Bent Construction Co., 46 Cal.2d 588, 297
Cal.Rptr.3d 464 (2004). . . . . . . . . . . . . . .333 P.2d 644 (1956). . . . . . . . . . . . . . . .330; 425
Unruh-Haxton v. Regents of University of California, 162 Vandagriff v. J.C. Penney, 228 Cal.App.2d 579, 39
Cal.App.4th 343, 76 Cal.Rptr.3d 146 (2008). . .455; Cal.Rptr. 671 (1964) . . . . . . . . . . . . . . . . 903
3712
Vander Lind v. Superior Court, 146 Cal.App.3d 358, 194
Upasani v. State Farm General Ins. Co., 227 Cal.App.4th Cal.Rptr. 209 (1983) . . . . . . . . . . . .3921, 3922
509, 173 Cal.Rptr.3d 784 (2014). . . . . . . . .3610
Vandi v. Permanente Medical Group, Inc., 7 Cal.App.4th
Uriell v. Regents of University of California, 184 1064, 9 Cal.Rptr.2d 463 (1992) . . . . . . . 532–535
Cal.Rptr.3d 79, 234 Cal. App. 4th 735 . . . 431; 500
Vang; People v., 52 Cal.4th 1038, 132 Cal.Rptr.3d 373,
US Ecology, Inc. v. State of California, 129 Cal.App.4th 262 P.3d 581 . . . . . . . . . . . . . . . . . . . . 220
887, 28 Cal. Rptr. 3d 894 (2005) . . . . . . 303; 361
Vanhooser v. Superior Court, 206 Cal.App.4th 921, 142
Uspenskaya v. Meline, 241 Cal.App.4th 996, 194 Cal. Cal.Rptr.3d 230 (2012) . . . . . . . . . . . . . . 3920
Rptr. 3d 364 (2015). . . . . . . . . . . . . . .3903A
Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir.
Utility Audit Co. v. City of Los Angeles, 112 Cal.App.4th 1981) . . . . . . . . . . . . . . . . . . . . . . . 2924
950, 5 Cal.Rptr.3d 520 (2003) . . . . . 370–372; 374
Vardanyan v. AMCO Ins. Co., 243 Cal.App.4th 779, 197
Cal. Rptr. 3d 195 (2015) . . . . . . . . . . . . . 2306
V Vargas v. FMI, Inc., 233 Cal.App.4th 638, 182
Vaca v. Wachovia Mortgage Corp., 198 Cal.App.4th 737, Cal.Rptr.3d 803, 80 Cal. Comp. Cases 111
129 Cal.Rptr.3d 354 (2011) . . . . . . . . . 455, 456 (2015) . . . . . . . . . . . . . . . . . . . . . . . 3708
Vacco Industries, Inc. v. Van Den Berg, 5 Cal.App.4th 34, Varjabedian v. City of Madera, 20 Cal.3d 285, 142
6 Cal.Rptr.2d 602 (1992) . . . . . . . . . 4405; 4411 Cal.Rptr. 429, 572 P.2d 43 (1977). . . . .2020, 2021
Vahey v. Sacia, 126 Cal.App.3d 171, 178 Cal.Rptr. 559 Vasey v. California Dance Co., 70 Cal.App.3d 742, 139
(1981). . . . . . . . . . . . . . . . . . . . . . . .434 Cal.Rptr. 72 (1977) . . . . . . . . . . . . . . . . 4340
Valbuena v. Ocwen Loan Servicing, LLC, 237 Vasquez v. Franklin Management Real Estate Fund, Inc.,
Cal.App.4th 1267, 188 Cal.Rptr.3d 668 (2015) . 4910 222 Cal.App.4th 819, 166 Cal.Rptr.3d 242
(2013) . . . . . . . . . . . . . . . . 2430–2432; 2510
Valdez v. City of Los Angeles, 231 Cal.App.3d 1043, 282
Cal.Rptr. 726 (1991) . . . . . . . . . . . . . . . 2401 Vasquez v. Superior Court, 4 Cal.3d 800, 94 Cal.Rptr.
796, 484 P.2d 964 (1971). . . . . . . . . . . . .4700
Valdez v. Seidner-Miller, Inc., 33 Cal.App.5th 600, 245
Cal.Rptr.3d 268 (2019) . . . . . . . . . . . . . . 4700 Vaughn v. Jonas, 31 Cal.2d 586, 191 P.2d 432
(1948) . . . . . . . . . . . . . . . . . . . . . . . 1304
Valencia v. Shell Oil Co., 23 Cal.2d 840, 147 P.2d 558
(1944) . . . . . . . . . . . . . . . . . . 3903M; 3930 Vecchione v. Carlin, 111 Cal.App.3d 351, 168 Cal.Rptr.
571 (1980). . . . . . . . . . . . . . . . . . . . .3927
Valentin v. La Societe Francaise de Bienfaisance
Mutuelle, 76 Cal.App.2d 1, 172 P.2d 359 (1946).514
TC-68
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Veera v. Banana Republic, LLC, 6 Cal.App.5th 907, 211 Vogel v. Thrifty Drug Co., 43 Cal.2d 184, 272 P.2d 1
Cal. Rptr. 3d 769 (2016) . . . . . . . . . . . . . 4700 (1954) . . . . . . . . . . . . . . . . . . . . . . . 1243
Veiseh v. Stapp, 35 Cal.App.5th 1099, 247 Cal.Rptr.3d Vogt v. Herron Construction, Inc., 200 Cal.App.4th 643,
868 (2019). . . . . . . . . . . . . . . . . . . . .2000 132 Cal.Rptr.3d 683 (2011). . . . . . . . . . . .3723
Velazquez v. City of Long Beach, 793 F.3d 1010 (9th Cir. Vollaro v. Lispi, 224 Cal.App.4th 93, 168 Cal.Rptr.3d 323
2015) . . . . . . . . . . . . . . . . . . . . 3020, 3021 (2014). . . . . . . . . . . . . . . . . . . . . . . .406
Vella v. Hudgins, 151 Cal.App.3d 515, 198 Cal.Rptr. 725 Vomaska v. City of San Diego, 55 Cal.App.4th 905, 64
(1984). . . . . . . . . . . . . . . . . . . . . . . .313 Cal.Rptr.2d 492 (1997) . . . . . . . . . . . . . . 5009
Venegas v. County of Los Angeles, 153 Cal.App.4th Von Beltz v. Stuntman, Inc., 207 Cal.App.3d 1467, 255
1230, 63 Cal.Rptr.3d 741 (2007). . . . . . . . .3066 Cal.Rptr. 755 (1989) . . . . . . . . . . . . . . . . 415
Venhaus v. Shultz, 155 Cal.App.4th 1072, 66 Cal.Rptr.3d Voris v. Lampert, 7 Cal.5th 1141, 250 Cal.Rptr.3d 779,
432 (2007). . . . . . . . . . . . . . . . . . . . .2204 446 P.3d 284 (2019) . . . . . . . . . . . . . . . 2100
Venoco, Inc. v. Gulf Underwriters Ins. Co., 175 Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir.
Cal.App.4th 750, 96 Cal.Rptr.3d 409 (2009) . . 2320 2018). . . . . . . . . . . . . . . . . . . . .440; 3020
Ventura v. ABM Industries Inc., 212 Cal.App.4th 258, Vrgora v. L.A. Unified Sch. Dist., 152 Cal.App.3d 1178,
150 Cal.Rptr.3d 861, 77 Cal. Comp. Cases 1091 200 Cal.Rptr. 130 (1984) . . . . . . . . . . . . .4532
(2012) . . . . . . . . . . . . . 204; 3063, 3064; 3710 Vu v. Prudential Property & Casualty Ins. Co., 26 Cal.4th
Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 1142, 113 Cal.Rptr.2d 70, 33 P.3d 487 (2001) . . 456
3d 116, 99 Cal. Rptr. 350. . . . . . . . . . . . .2020
Verdier v. Verdier, 133 Cal.App.2d 325, 284 P.2d 94 W
(1955). . . . . . . . . . . . . . . . . . . . . . . .303
W. Land Office v. Cervantes, 175 Cal.App.3d 724, 220
Verdier v. Verdier, 152 Cal.App.2d 348, 313 P.2d 123
Cal.Rptr. 784 (1985) . . . . . . . . . . . . . . . 4321
(1957) . . . . . . . . . . . . . . . . . . . . . . . 1500
WA Southwest 2, LLC v. First American Title Ins. Co.,
Verio Healthcare, Inc. v. Superior Court, 3 Cal.App.5th
240 Cal.App.4th 148, 192 Cal.Rptr.3d 423
1315, 208 Cal.Rptr.3d 436 (2016) . . . . . . . . 1812
(2015) . . . . . . . . . . . . . . . . . . . . . . . 4120
Veronese v. Lucasfilm Ltd., 212 Cal.App.4th 1, 151
Wade v. Diamond A Cattle Co., 44 Cal.App.3d 453, 118
Cal.Rptr.3d 41 (2012). . . . . . . . . . . . . . .2513
Cal.Rptr. 695 (1975) . . . . . . . . . . . . . 313; 337
Verrazono v. Gehl Co., 50 Cal.App.5th 636, 263
Wade v. Lake County Title Co., 6 Cal.App.3d 824, 86
Cal.Rptr.3d 663 (2020) . . . . . . . . . . . . . . 1203
Cal.Rptr. 182 (1970) . . . . . . . . . . . . . . . . 357
Viad Corp. v. Superior Court, 55 Cal.App.4th 330, 64
Wakefield v. Thompson, 177 F.3d 1160 (9th Cir.
Cal.Rptr.2d 136 (1997) . . . . . . . . . . . . . . 2920
1999) . . . . . . . . . . . . . . . . . . . . . . . 3041
Victaulic Co. v. American Home Assurance Co., 20
Walbrook Ins. Co. Ltd. v. Liberty Mut. Ins. Co., 5
Cal.App.5th 948, 229 Cal.Rptr.3d 545 (2018) . . 216
Cal.App.4th 1445, 7 Cal.Rptr.2d 513 (1992) . . 2334
Vieira Enterprises, Inc. v. McCoy, 8 Cal.App.5th 1057,
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287,
214 Cal. Rptr. 3d 193 (2017) . . . . . . . 2031; 4901
201 U.S. App. D.C. 301 (D.C. Cir. 1980) . . . . 1703
Villacorta v. Cemex Cement, Inc., 221 Cal.App.4th 1425,
Walker v. Blue Cross of California, 4 Cal.App.4th 985, 6
165 Cal.Rptr.3d 441 (2013) . . . . . . . . . . . 3963
Cal.Rptr.2d 184 (1992) . . . . . . . . . . 2401; 2404
Village of (see name of village)
Walker v. Signal Companies, Inc., 84 Cal.App.3d 982,
Villers v. County of San Diego, 156 Cal.App.4th 238, 67
149 Cal.Rptr. 119 (1978) . . . . . . . . . . . . . 4531
Cal.Rptr.3d 253 (2007). . . . . . . . . . . . . . .426
Walker v. Sonora Regional Medical Center, 202
Vine v. Bear Valley Ski Co., 118 Cal. App. 4th 577, 13
Cal.App.4th 948, 135 Cal.Rptr.3d 876
Cal. Rptr. 3d 370, 69 Cal. Comp. Cases 725. . .470;
(2012) . . . . . . . . . . . . . . . . . . . . . 514–516
472
Walker, Conservatorship of, 196 Cal.App.3d 1082, 242
Viner v. Sweet, 30 Cal.4th 1232, 135 Cal.Rptr.2d 629, 70
Cal.Rptr. 289 (1987) . . . . . . . . 4000; 4005, 4006
P.3d 1046 (2003). . . . . . . . .430; 435; 601; 4106
Walker, Conservatorship of, 206 Cal.App.3d 1572, 254
Vista, City of v. W.O. Fielder, 13 Cal.4th 612, 54
Cal.Rptr. 552 (1989) . . . . . . . . . . . . . . . 4002
Cal.Rptr.2d 861, 919 P.2d 151 (1996) . . . . . . 3508
Wallace v. County of Stanislaus, 245 Cal.App.4th 109,
Vistica v. Presbyterian Hospital & Medical Center, Inc.,
199 Cal. Rptr. 3d 462, 81 Cal. Comp. Cases 247
67 Cal.2d 465, 62 Cal.Rptr. 577, 432 P.2d 193
(2016) . . . . . . . . . . . . . . . . . . . 2505; 2540
(1967) . . . . . . . . . . . . . . . . . . . . . 514, 515
TC-69
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[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Wallace v. Pacific Electric Ry. Co., 105 Cal.App. 664, Watson v. City of San Jose, 800 F.3d 1135 (9th Cir.
288 P. 834 (1930) . . . . . . . . . . . . . . 107; 5003 2015) . . . . . . . . . . . . . . . . . . . . . . . 3051
Waller v. Southern Pacific Co., 66 Cal.2d 201, 57 Watson Bowman Acme Corp. v. RGW Construction, Inc.,
Cal.Rptr. 353, 424 P.2d 937, 32 Cal. Comp. Cases 139 2 Cal.App.5th 279, 206 Cal.Rptr.3d 281 (2016).3935
(1967) . . . . . . . . . . . . . . . . . . . . . . . 2902 Watters Associates v. Superior Court, 218 Cal.App.3d
Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 44 1322, 267 Cal.Rptr. 696, 55 Cal. Comp. Cases 89
Cal.Rptr.2d 370, 900 P.2d 619 (1995) . . . . . . 4522 (1990) . . . . . . . . . . . . . . . . . . . . . . . 2804
Wallis v. Farmers Group, Inc., 220 Cal.App.3d 718, 269 Weathers v. Kaiser Foundation Hospitals, 5 Cal.3d 98, 95
Cal.Rptr. 299 (1990) . . . . . . . . . . . . . . . . 350 Cal.Rptr. 516, 485 P.2d 1132 (1971) . . . . 100; 5000
Wal-Mart Stores, Inc., 27 Cal.4th 219, 115 Cal. Rptr. 2d Weaver v. Bank of America National Trust & Savings
868, 38 P.3d 1094, 67 Cal. Comp. Cases 36 Assn., 59 Cal.2d 428, 30 Cal.Rptr. 4, 380 P.2d 644
(2002) . . . . . . . . . . . . . . . . . . . . . . 1009B (1963). . . . . . . . . . . . . . . . . . . . . . . .355
Wal-Noon Corporation v. Hill, 45 Cal.App.3d 605, 119 Weaver v. State of California, 63 Cal.App.4th 188, 73
Cal.Rptr. 646 (1975) . . . . . . . . . . . . . . . . 330 Cal.Rptr.2d 571 (1998) . . . . . . . . . . 3000; 3005
Walsh v. Bronson, 200 Cal.App.3d 259, 245 Cal.Rptr. Weaver v. Superior Court, 95 Cal. App. 3d 166, 156 Cal.
888 (1988). . . . . . . . . . . . . . . . . . . . .1501 Rptr. 745 (1979) . . . . . . . . . . . . . . . . . 1500
Walter v. Ayvazian, 134 Cal.App. 360, 25 P.2d 526 Webb v. Special Electric Co., Inc, 63 Cal.4th 167, 202
(1933). . . . . . . . . . . . . . . . . . . . . . . .100 Cal. Rptr. 3d 460, 370 P.3d 1022 (2016).1205; 1208;
Walters v. Meyers, 226 Cal.App.3d Supp. 15, 277 1222; 1249
Cal.Rptr. 316 (1990) . . . . . 4302, 4303; 4305; 4309 Webster v. Claremont Yoga, 26 Cal.App.5th 284, 236
Wang v. Massey Chevrolet, 97 Cal.App.4th 856, 118 Cal.Rptr.3d 802 (2018). . . . . . . . . . . . . . .430
Cal.Rptr.2d 770 (2002) . . . . . . . . . . . . . . 4700 Webster v. Ebright, 3 Cal.App.4th 784, 4 Cal.Rptr.2d 714,
Wang v. Nibbelink, 4 Cal.App.5th 1, 208 Cal. Rptr. 3d 4 Cal. Rptr. 2d 714 (1992). . . . . . . . . . . . .901
461 (2016). . . . . . . . . . . . . . . . . . . . .1010 Weddington Productions, Inc. v. Flick, 60 Cal. App. 4th
Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 793, 71 Cal.Rptr.2d 265 (1998) . . . . . . . . . . 302
S.Ct. 2115, 104 L.Ed.2d 733 (1989) . . . . . . . 2503 Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 74
Warfield v. Peninsula Golf & Country Club, 214 Cal.Rptr.2d 510 (1998) . . 2500; 3903P; 3940; 3942,
Cal.App.3d 646, 262 Cal.Rptr. 890 (1989) . . . 1802 3943; 3945; 3947; 3949
Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 Weeks v. Southern Bell Telephone & Telegraph Co., 408
P.2d 12 (1955) . . . . . . . . . . . . . . . . . . . 414 F.2d 228, 70 L.R.R.M. (BNA) 2843 (5th Cir.
Warner Construction Corp. v. City of Los Angeles, 2 1969) . . . . . . . . . . . . . . . . . . . . . . . 2501
Cal.3d 285, 85 Cal.Rptr. 444, 466 P.2d 996 Weeshoff Constr. Co. v. Los Angeles County Flood
(1970) . . . . . . . . . . . . . 206; 1901; 4500, 4501 Control Dist., 88 Cal.App.3d 579, 152 Cal.Rptr. 19
Warrack, Conservatorship of, 11 Cal.App.4th 641, 14 (1979). . . . . . . . . . . . . . . . . . . .4521, 4522
Cal.Rptr. 2d 99 (1992) . . . . . . . . . . . . . . 4009 Weiner v. Fleischman, 54 Cal.3d 476, 286 Cal.Rptr. 40,
Warren v. Schecter, 57 Cal.App.4th 1189, 67 Cal.Rptr.2d 816 P.2d 892 (1991). . . . . . . . . .200, 201; 3712
573 (1997) . . . . . . . . . . . . . . . . . . . . . 533 Weinstat v. Dentsply International, Inc., 180 Cal.App.4th
Warsaw v. Chicago Metallic Ceilings, Inc, 35 Cal.3d 564, 1213, 103 Cal.Rptr.3d 614 (2010) . . . . . . . . 1240
199 Cal.Rptr. 773, 676 P.2d 584 (1984) . . . . . 4901 Welborne v. Ryman-Carroll Foundation, 22 Cal.App.5th
Wasatch Property Management v. Degrate, 35 Cal.4th 719, 231 Cal.Rptr.3d 806 (2018) . . . . . . . . . 375
1111, 112 P.3d 647, 29 Cal.Rptr.3d 262 (2005) . 4306 Welco Electronics, Inc. v. Mora, 223 Cal.App.4th 202,
Washington v. City and County of San Francisco, 123 166 Cal. Rptr. 3d 877 (2014). . . . . . . . . . .2100
Cal.App.2d 235, 266 P.2d 828 (1954) . . . . 730, 731 Weller v. American Broadcasting Companies, Inc., 232
Washington v. City and County of San Francisco, 219 Cal.App.3d 991, 283 Cal.Rptr. 644 (1991) . . . 1709
Cal.App.3d 1531, 269 Cal.Rptr. 58 (1990) . . . 1120 Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80
Washington v. County of Contra Costa, 38 Cal.App.4th L.Ed.2d 732 (1984) . . . . . . . . . . . . 3026; 3051
890, 45 Cal.Rptr.2d 646 (1995) . . . . . . . . . . 423 Werner v. Hearst Publications, Inc., 65 Cal.App.2d 667,
Wassmann v. South Orange County Community College 151 P.2d 308 (1944) . . . . . . . . . . . . . . . 1502
Dist., 24 Cal.App.5th 825, 234 Cal. Rptr. 3d 712 West v. Bechtel Corp., 96 Cal.App.4th 966, 117
(2018) . . . . . . . . . . . . . . . . . . . . 457; 2508 Cal.Rptr.2d 647 (2002) . . . . . . . . . . . . . . 2570
Watkins v. Ohman, 251 Cal.App.2d 501, 59 Cal.Rptr. 709 West v. City of San Diego, 54 Cal.2d 469, 6 Cal.Rptr.
(1967). . . . . . . . . . . . . . . . . . . . . . . .700 289, 353 P.2d 929 (1960). . . . . . . . . .100; 5000
TC-70
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
West v. Superior Court, 27 Cal.App.4th 1625, 34 Wiener v. Southcoast Childcare Centers, Inc., 32 Cal.4th
Cal.Rptr.2d 409 (1994) . . . . . . . . . . . . . . 3801 1138, 12 Cal.Rptr.3d 615, 88 P.3d 517 (2004) . 1005
West American Insurance Co. v. California Mutual Wilcox v. First Interstate Bank of Oregon, 815 F.2d 522,
Insurance Co., 195 Cal.App.3d 314, 240 Cal.Rptr. 540 1987-1 Trade Cas. (CCH) P67530 (9th Cir.
(1987) . . . . . . . . . . . . . . . . . . . . . . . 3724 1987) . . . . . . . . . . . . . . . . . . . . . . . 3406
Western Airlines, Inc. v. Criswell, 472 U.S. 400, 105 Wilding v. Norton, 156 Cal.App.2d 374, 319 P.2d 440
S.Ct. 2743, 86 L.Ed.2d 321 (1985) . . . . . . . 2501 (1957). . . . . . . . . . . . . . . . . . . . . . . .706
Western Land Office, Inc. v. Cervantes, 175 Cal.App.3d Wildman v. Burlington Northern Railroad Co., 825 F.2d
724, 220 Cal.Rptr. 784 (1985) . . . . . . . . . . 4322 1392 (9th Cir. 1987) . . . . . . . . . . . . . . . 2941
Westinghouse Electric Corp. v. County of Los Angeles, Wiley v. County of San Diego, 19 Cal.4th 532, 79
129 Cal.App.3d 771, 181 Cal.Rptr. 332 (1982) . 4532 Cal.Rptr.2d 672, 966 P.2d 983 (1998). . . . . . .606
Westrick v. State Farm Insurance, 137 Cal.App.3d 685, Wilhelm v. Rotman, 680 F.3d 1113 (9th Cir.
187 Cal.Rptr. 214 (1982) . . . . . . . . . 2333; 2361 2012) . . . . . . . . . . . . . . . . . . . . . . . 3041
Wetherton v. Growers Farm Labor Assn., 275 Cal.App.2d Wilkerson v. Wells Fargo Bank, 212 Cal.App.3d 1217,
168, 79 Cal.Rptr. 543, 72 L.R.R.M. (BNA) 2033 261 Cal.Rptr. 185 (1989) . . . . . . . . . . . . .2424
(1969) . . . . . . . . . . . . . . . . . . . . . . . 3600 Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 175
Whalen v. McMullen, 907 F.3d 1139 (9th Cir. L.Ed.2d 995, 130 S. Ct. 1175, 175 L. Ed. 2d 995
2018) . . . . . . . . . . . . . . . . . . . . 3023; 3025 (2010) . . . . . . . . . . . . . . . . . . . . . . . 3042
Whaley v. Jansen, 208 Cal.App.2d 222, 25 Cal.Rptr. 184 Wilkins; People v., 186 Cal.App.3d 804, 231 Cal.Rptr. 1
(1962) . . . . . . . . . . . . . . . . . . . . . . . 1408 (1986) . . . . . . . . . . . . . . . . . . . . . . . 1408
Wheeler v. Barker, 92 Cal.App.2d 776, 208 P.2d 68 Wilkinson v. Marcellus, 51 Cal.App.2d 630, 125 P.2d 584
(1949). . . . . . . . . . . . . . . . . . . . . . . .554 (1952). . . . . . . . . . . . . . . . . . . . . . . .703
White v. County of Orange, 166 Cal.App.3d 566, 212 Wilkinson v. Southern Pacific Co., 224 Cal.App.2d 478,
Cal.Rptr. 493 (1985) . . . . . . . . . . . . . . . 3721 36 Cal.Rptr. 689 (1964) . . . . . . . . . . . 805, 806
White v. Cridlebaugh, 178 Cal.App.4th 506, 100 Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010) . 3020
Cal.Rptr.3d 434, 100 Cal. Rptr. 3d 434 (2009) . 4560, Wilkinson v. Zelen, 167 Cal.App.4th 37, 83 Cal.Rptr.3d
4561 779 (2008) . . . . . . . . . . . . . . . . . . . . . 606
White v. Square, Inc., 7 Cal.5th 1019, 250 Cal.Rptr.3d Wilks v. Hom, 2 Cal.App.4th 1264, 3 Cal. Rptr. 2d 803
770, 446 P.3d 276 (2019). . . . . . . . . . . . .3060 (1992) . . . . . . . . . . . . . . . . . . . . . . . 1621
White v. Ultramar, Inc., 21 Cal.4th 563, 88 Cal.Rptr.2d Will v. Southern Pacific Co., 18 Cal.2d 468, 116 P.2d 44
19, 981 P.2d 944 (1999) . . 1602; 3903P; 3943–3948 (1941). . . . . . . . . . . . . . . . . . . . . . . .806
White v. Uniroyal, Inc., 155 Cal.App.3d 1, 202 Cal.Rptr. Willdan v. Sialic Contractors Corp., 158 Cal.App.4th 47,
141 (1984). . . . . . . . . . . . . . . . . . . . .3705 69 Cal.Rptr.3d 633 (2007) . . . . . . . . . . . . 4510
Whitehall v. County of San Bernardino, 17 Cal.App.5th Willhide-Michiulis v. Mammoth Mountain Ski Area,
352, 225 Cal. Rptr. 3d 321 (2017) . . . . 2509; 4603 LLC, 25 Cal.App.5th 344, 235 Cal.Rptr.3d 716
Whitfield v. Jessup, 31 Cal.2d 826, 193 P.2d 1 (2018) . . . . . . . . . . . . . . . . . . . . .451; 472
(1948) . . . . . . . . . . . . . . . . . . . . . . . 1243 William L. Lyon & Associates, Inc., 204 Cal.App.4th
Whitford v. Pacific Gas and Electric Co., 136 Cal.App.2d 1294, 139 Cal.Rptr.3d 670 . . . . . 4107, 4108; 4120
697, 289 P.2d 278 (1955) . . . . . . . . . . . . . 700 Williams v. Barnett, 135 Cal. App. 2d 607, 287 P.2d 789
Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 (1955). . . . . . . . . . . . . . . . . . . . . . . .200
L.Ed.2d 251 (1986) . . . . . . . . . . . . 3005; 3042 Williams v. Beechnut Nutrition Corp., 185 Cal.App.3d
Whitlow v. Rideout Memorial Hospital, 237 Cal.App.4th 135, 229 Cal.Rptr. 605 (1986). . . . . . .1221; 1245
631, 188 Cal.Rptr.3d 246 (2015). . . . . . . . .3714 Williams v. Carl Karcher Enterprises, Inc., 182
Whitmire v. Ingersoll-Rand Co., 184 Cal.App.4th 1078, Cal.App.3d 479, 227 Cal.Rptr. 465 (1986) . . . 1001;
109 Cal.Rptr.3d 371 (2010) . . . . . . . . . . . . 435 1003
Whitt; People v., 36 Cal.3d 724, 205 Cal.Rptr. 810, 685 Williams v. Cole, 181 Cal.App.2d 70, 5 Cal.Rptr. 24
P.2d 1161 (1984) . . . . . . . . . . . . . . 102; 5010 (1960). . . . . . . . . . . . . . . . . . . . . . . .707
Whitton v. State of California, 98 Cal.App.3d 235, 159 Williams v. Fremont Corners, Inc., 37 Cal.App.5th 654,
Cal.Rptr. 405 (1979) . . . . . . . . . . . . . . . . 411 250 Cal.Rptr.3d 46 (2019) . . . . . . . . . . . . 1005
Whyte v. Schlage Lock Co., 101 Cal.App.4th 1443, 125 Williams v. Hartford Ins. Co., 147 Cal.App.3d 893, 195
Cal.Rptr. 2d 277 (2002) . . . . . . . . . . 4402–4404 Cal.Rptr. 448 (1983) . . . . . . . . . . . . . . . 1500
Wicks v. Antelope Valley Healthcare Dist., 49 Williams v. Missouri Pacific Railroad Co., 11 F.3d 132
Cal.App.5th 866, 263 Cal.Rptr.3d 397 (2020). .3714 (10th Cir. 1993). . . . . . . . . . . . . . . . . .2941
TC-71
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TABLE OF CASES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Williams v. The Pep Boys Manny Moe & Jack of Winn v. Pioneer Medical Group, Inc., 63 Cal.4th 148, 202
California, 27 Cal.App.5th 225, 238 Cal.Rptr.3d 809 Cal.Rptr.3d 447, 370 P.3d 1011 (2016).3101; 3102A,
(2018) . . . . . . . . . . . . . 3903A; 3903E; 3903Q 3102B; 3103, 3104; 3107; 3109, 3110
Williams v. State of California, 34 Cal.3d 18, 192 Winslett v. 1811 27th Avenue LLC, 26 Cal.App.5th 239,
Cal.Rptr. 233, 664 P.2d 137 (1983) . . . 450A, 450B 237 Cal.Rptr.3d 25 (2018). . . . . . . . .4321, 4322
Williams v. Volkswagenwerk Aktiengesellschaft, 180 Winter v. DC Comics, 30 Cal.4th 881, 134 Cal.Rptr.2d
Cal.App.3d 1244, 226 Cal.Rptr. 306 (1986).219; 221 634, 69 P.3d 473, 66 U.S.P.Q.2d 1954 (2003). .1805
Williams v. Wraxall, 33 Cal.App.4th 120, 39 Cal.Rptr.2d Wisden v. Superior Court, 124 Cal.App.4th 750, 21
658 (1995). . . . . . . . . . . . . . . . . . . . .1900 Cal.Rptr.3d 523 (2004) . . . . . . . 4200; 4202, 4203
Williamson v. Prida, 75 Cal.App.4th 1417, 89 Cal.Rptr.2d Wise v. DLA Piper LLP (US), 220 Cal.App.4th 1180, 164
868 (1999) . . . . . . . . . . . . . . . . . . . . . 501 Cal.Rptr.3d 54 (2013) . . . . . . . . . . . . . . . 601
Williamson v. Superior Court of Los Angeles County, 21 Wise v. Southern Pac. Co., 1 Cal.3d 600, 83 Cal.Rptr.
Cal.3d 829, 148 Cal.Rptr. 39, 582 P.2d 126 202, 463 P.2d 426, 73 L.R.R.M. (BNA) 2360
(1978). . . . . . . . . . . . . . . . . . . . . . . .204 (1970). . . . . . . . . . . . . . . . . . .2406; 3903P
Willits, People ex rel. City of v. Certain Underwriters at Wise, 220 Cal.App.4th 1180, 164 Cal.Rptr.3d 54 . . 601
Lloyd’s of London, 97 Cal.App.4th 1125, 118 Wittkopf v. County of Los Angeles, 90 Cal.App.4th 1205,
Cal.Rptr.2d 868 (2002) . . . . . . . . . . . . . . 2360 109 Cal.Rptr.2d 543 (2001) . . . . . . . . . . . 2544
Willoughby v. Zylstra, 5 Cal.App.2d 297, 42 P.2d 685 Wolf v. Superior Court, 107 Cal.App.4th 25, 130
(1935). . . . . . . . . . . . . . . . . . . . . . . .218 Cal.Rptr.2d 860 (2003). . . . . . . . . . .4100–4102
Wills v. Superior Court, 195 Cal.App.4th 143, 125 Wolf v. Weber, 52 Cal.App.5th 406, 266 Cal.Rptr.3d 104
Cal.Rptr.3d 1 (2011) . . . . . . . . 2500; 2540; 2544 (2020). . . . . . . . . . . . . . . . . . . . . . . .470
Wilson v. Blue Cross of So. Cal., 222 Cal.App.3d 660, Wolf, 107 Cal.App.4th 25, 130 Cal.Rptr.2d 860 . . 4102
271 Cal.Rptr. 876 (1990) . . . . . . . . . . . . . 430 Wolfsen v. Hathaway, 32 Cal.2d 632, 198 P.2d 1
Wilson v. Chicago, Milwaukee, St. Paul & Pacific (1948) . . . . . . . . . . . . . . . . . . 3903H, 3903I
Railroad Co., 841 F.2d 1347 (7th Cir. 1988) . . 2926 Wong v. Jing, 189 Cal.App.4th 1354, 117 Cal.Rptr.3d 747
Wilson v. City and County of San Francisco, 174 (2010) . . . . . . . . . . . . . . . . 1620–1623; 1701
Cal.App.2d 273, 344 P.2d 828 (1959). . . . . . .906 Wood v. County of San Joaquin, 111 Cal.App.4th 960, 4
Wilson v. Crown Transfer & Storage Co., 201 Cal. 701, Cal.Rptr.3d 340 (2003). . . . . . . . . . . . . . .425
258 P. 596 (1927). . . . . . . . . . . . . . . . .2100 Wood v. Kalbaugh, 39 Cal.App.3d 926, 114 Cal.Rptr. 673
Wilson v. Gilbert, 25 Cal.App.3d 607, 102 Cal.Rptr. 31 (1974) . . . . . . . . . . . . . . . . . . . . . 330, 331
(1972) . . . . . . . . . . . . . . . . . . . 359; 3904B Wood v. Samaritan Institution, 26 Cal.2d 847, 161 P.2d
Wilson v. Ritto, 105 Cal.App.4th 361, 129 Cal.Rptr.2d 556 (1945) . . . . . . . . . . . . . . . . . . . . . 515
336 (2003) . . . . . . . . . . . . . . . . . . . . . 406 Woods v. Young, 53 Cal.3d 315, 279 Cal. Rptr. 613, 807
Wilson v. Southern California Edison Co., 21 P.2d 455 (1991). . . . . . . . . . . . . . . .555, 556
Cal.App.5th 786, 230 Cal.Rptr.3d 595 (2018). .2021 Worthington v. Davi, 208 Cal.App.4th 263, 145
Wilson v. Southern California Edison Co., 184 Cal.Rptr.3d 389 (2012) . . . . . . . . . . . . . . 4120
Cal.Rptr.3d 26, 234 Cal. App. 4th 123. .2021, 2022; Wright v. Beverly Fabrics, Inc., 95 Cal.App.4th 346, 115
3905A Cal.Rptr.2d 503, 67 Cal. Comp. Cases 51, 115 Cal.
Wilson, 25 Cal.App.3d 607, 102 Cal.Rptr. 31. . .3904B Rptr. 2d 503 (2002). . . . . . . . . . . . . . . .2800
Wilson, 234 Cal.App.4th 123, 184 Cal. Rptr. 3d Wright v. City of L.A., 219 Cal.App.3d 318, 268
26. . . . . . . . . . . . . . . . . . . . . .2021, 2022 Cal.Rptr. 309 (1990) . . . . . . . . . . . . . . . . 425
Wilson; People v., 25 Cal.2d 341, 153 P.2d 720 Wright v. Eastlick, 125 Cal. 517, 58 P. 87 (1899) . . 100
(1944). . . . . . . . . . . . . . . . . . . . . . . .218 Wright v. Fireman’s Fund Insurance Co., 11 Cal.App.4th
Winarto v. Toshiba America Electronics Components, 998, 14 Cal.Rptr.2d 588 (1992) . . . . . . . . . 2360
Inc., 274 F.3d 1276 (9th Cir. 2001) . . . . . . . 3064 Wright v. Stang Manufacturing Co., 54 Cal.App.4th
Winchell v. English, 62 Cal.App.3d 125, 133 Cal.Rptr. 20 1218, 63 Cal.Rptr.2d 422 (1997). .1203; 1205; 1245
(1976) . . . . . . . . . . . . . . . . . . . . . . . 3060 Wright v. Williams, 47 Cal.App.3d 802, 121 Cal.Rptr.
Wind Dancer Production Group v. Walt Disney Pictures, 194, 121 Cal. Rptr. 194 (1975) . . . . . . . . . . 600
10 Cal.App.5th 56, 215 Cal. Rptr. 3d 835 Wright, 11 Cal.App.4th 998, 14 Cal.Rptr.2d 588 . . 2360
(2017) . . . . . . . . . . . . . . . . . . 336; 454–456
Wunderlich v. State, 65 Cal.2d 777, 56 Cal.Rptr. 473, 423
Windsor Pacific LLC v. Samwood Co., Inc, 213 P.2d 545 (1967) . . . . . . . . . . . . . . . . . .4501
Cal.App.4th 263, 152 Cal.Rptr.3d 518 (2013). .4901
TC-72
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AS TABLE OF CASES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Wyatt v. Union Mortgage Co., 24 Cal.3d 773, 157 Yount v. City of Sacramento, 43 Cal.4th 885, 76
Cal.Rptr. 392, 598 P.2d 45 (1979) . . . . . . . . 3600 Cal.Rptr.3d 787, 183 P.3d 471 (2008) . . . . . . 3020
WYDA Associates v. Merner, 42 Cal.App.4th 1702, 50 Yousefian v. City of Glendale, 779 F.3d 1010 (9th Cir.
Cal.Rptr.2d 323 (1996). . . . . . . . . . . . . . .314 2015) . . . . . . . . . . . . . . . . . . . . . . . 3021
Wyman v. Hooker, 2 Cal.App. 36, 83 P. 79 (1905).4522 Youst v. Longo, 43 Cal.3d 64, 233 Cal.Rptr. 294, 729 P.2d
Wysinger v. Automobile Club of Southern California, 157 728 (1987). . . . . . . . . . . . . . . . . . . . .2202
Cal.App.4th 413, 69 Cal. Rptr. 3d 1 (2007) . . 2505; Yurick v. Superior Court, 209 Cal.App.3d 1116, 257
2509; 2546; VF-2513 Cal.Rptr. 665 (1989) . . . . . . . . . . . . . . . 1600
X Z
Xum Speegle, Inc. v. Fields, 216 Cal.App.2d 546, 31 Z. v. Los Angeles Unified School Dist, 35 Cal.App.5th
Cal.Rptr. 104 (1963) . . . . . . . . . . . . . . . 4102 210, 247 Cal.Rptr.3d 127 (2019) . . . . . . . . . 426
Z.V. v. County of Riverside, 238 Cal.App.4th 889, 189
Y Cal.Rptr.3d 570 (2015) . . . . . . . . . . . 426; 3721
Zamos v. Stroud, 32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87
Yaesu Electronics Corp. v. Tamura, 28 Cal.App.4th 8, 33
P.3d 802 (2004) . . . . . . . . . . . . . . 1501; 1511
Cal.Rptr.2d 283 (1994) . . . . . . . . . . . . . . 4200
Zamucen v. Crocker, 149 Cal.App.2d 312, 308 P.2d 384
Yanez v. Plummer, 221 Cal.App.4th 180, 164 Cal.Rptr.3d
(1957). . . . . . . . . . . . . . . . . . . . . . . .709
309 (2013). . . . . . . . . . . . . . . .430, 431; 601
Zarzana v. Neve Drug Co., 180 Cal. 32, 179 P. 203, 15
Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 32 Cal.
A.L.R. 401 (1919) . . . . . . . . . . . . . . . . . 700
Rptr. 3d 436, 116 P.3d 1123 (2005). . . .2505; 2509
Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1
Yau v. Allen, 229 Cal.App.4th 144, 176 Cal.Rptr.3d 824,
(1946). . . . . . . . . . . . . . . . . . . .2100, 2101
79 Cal. Comp. Cases 1146 (2014) . . . . . . . . 2430
Zelig v. County of Los Angeles, 27 Cal.4th 1112, 119
Yawn v. Southern Ry. Co., 591 F.2d 312, 100 L.R.R.M.
Cal.Rptr.2d 709, 45 P.3d 1171 (2002). . .3001; 3700
(BNA) 3025 (5th Cir. 1979) . . . . . . . . . . . 2902
Zentz v. Coca Cola Bottling Co. of Fresno, 39 Cal.2d 436,
Yee v. Superior Court, 31 Cal. App. 5th 26, 242
247 P.2d 344 (1952) . . . . . . . . . . . . . 417; 518
Cal.Rptr.3d 439 (2019) . . . . . . . . . . . . . . 1520
Zhu v. Workers’ Comp. Appeals Bd., 12 Cal.App.5th
Yellow Creek Logging Corp. v. Dare, 216 Cal.App.2d 50,
1031, 219 Cal.Rptr.3d 630, 82 Cal. Comp. Cases 692
30 Cal.Rptr. 629 (1963) . . . . . . . . . . 1900; 1903
(2017). . . . . . . . . . . . . . . . . . . .3725–3727
Yield Dynamics, Inc. v. TEA Systems Corp., 154
Zinn v. Fred R. Bright Co., 271 Cal.App.2d 597, 76
Cal.App.4th 547, 66 Cal.Rptr.3d 1 (2007). . . .4412
Cal.Rptr. 663, 46 A.L.R.3d 1317 (1969) . . . . . 373
Yokum; People v., 145 Cal.App.2d 245, 302 P.2d 406
Zion v. County of Orange, 874 F.3d 1072 (9th Cir.
(1956). . . . . . . . . . . . . . . . . . . . . . . .202
2017) . . . . . . . . . . . . . . . . . . . . . . . 3020
Younan v. Equifax Inc., 111 Cal.App.3d 498, 169
ZL Technologies, Inc. v. Does 1-7, 13 Cal. App. 5th 603,
Cal.Rptr. 478 (1980) . . . . . . . . . . . . . . . 4111
220 Cal. Rptr. 3d 569 (2017). . . . . . . . . . .1707
Young v. Aro Corp., 36 Cal.App.3d 240, 111 Cal.Rptr.
Zubillaga v. Allstate Indemnity Co., 12 Cal.App.5th
535 (1974) . . . . . . . . . . . . . . . . . . 414, 415
1017, 219 Cal.Rptr.3d 620 (2017) . . . . . . . . 2331
Young v. CBS Broadcasting, Inc., 212 Cal.App.4th 551,
Zucchet v. Galardi, 229 Cal.App.4th 1466, 178
151 Cal.Rptr.3d 237 (2012) . . . . . . . . . . . 1700
Cal.Rptr.3d 363 (2014) . . . . . . . . . . . . . . 1504
Young v. County of Los Angeles, 655 F.3d 1156 (9th Cir.
Zumbrun v. University of Southern California, 25
2011) . . . . . . . . . . . . . . . . . . . . . . . 3020
Cal.App.3d 1, 101 Cal.Rptr. 499, 51 A.L.R.3d 991
Young v. Pacific Electric Ry. Co, 208 Cal. 568, 283 P. 61 (1972) . . . . . . . . . . . . . . . . . 370; 372; 3602
(1929). . . . . . . . . . . . . . . . . . . . . . . .803
Zvolanek v. Bodger Seeds, Ltd., 5 Cal.App.2d 106, 42
Youngblood v. Gates, 200 Cal.App.3d 1302, 246 P.2d 92 (1935). . . . . . . . . . . . . . . . . .3903L
Cal.Rptr. 775 (1988) . . . . . . . . . . . . . . . 1407
Younger v. Solomon, 38 Cal.App.3d 289, 113 Cal.Rptr.
113 (1974). . . . . . . . . . . . . . . . . . . . .1520
TC-73
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                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Business and Professions Code—Cont.
CALIFORNIA Sec. Inst.
CALIFORNIA CONSTITUTION 17026.1 . . . . . . . . . . . . . . . . . . . . . . . . 3303
17026.5 . . . . . . . . . . . . . . . . . . . . . . . . 3303
California Constitution 17029 . . . . . . . . . . . . . . . . . . . . . . . . . 3303
Art.:Sec. Inst. 17030 . . . . . . . . . . . . . . . . . . . . . . . . . 3302
17031 . . . . . . . . . . . . . . . . . . . . . . . . . 3300
I:1. . . . . . . . . . . . . . . . . . . . . . . . . . .1800
17040 . . . . . . . . . . . . . . . . . . . . . . . . . 3300
I:16 . . . . . . . . . . . . . . . . 100, 5009, 5014, 5017
17041 . . . . . . . . . . . . . . . . . . . . . . . . . 3330
I:19 . . . . . . . . . . . . . . . . . . . . . . . . . . 3500
17042 . . . . . . . . . . . . . . . . . . . . . . . . . 3332
I:28(f) . . . . . . . . . . . . . . . . . . . . . . . . . 211
17043 . . . . . . . . . . . . . . . . . . . . . . . . . 3301
VI:10 . . . . . . . . . . . . . . . . . . . . . . . . . 5016
17044 . . . . . . . . . . . . . . . . . . . . . . . . . 3302
CALIFORNIA STATUTES 17045 . . . . . . . . . . . . . . . . . . . . . . . . . 3320
17049 . . . . . . . . . . . . . . . . . . 3300, 3301, 3302
Business and Professions Code 17050 . . . . . . . . . . . . . . . . . . . . . 3301, 3331
17050(d) . . . . . . . . . . . . . . . . . . . . 3333, 3335
Sec. Inst.
17050(e) . . . . . . . . . . . . . . . . . . . . 3334, 3335
1627.5. . . . . . . . . . . . . . . . . . . . .450A, 450B 17071 . . . . . . . . . . . . . . . . . . 3300, 3301, 3302
2395 to 2398 . . . . . . . . . . . . . . . . . 450A, 450B 17071.5 . . . . . . . . . . . . . . . . . 3300, 3301, 3302
2395.5 . . . . . . . . . . . . . . . . . . . . . . . . . 425 17072 . . . . . . . . . . . . . . . . . . . . . 3304, 3305
2397(a). . . . . . . . . . . . . . . . . . . . . . . . .554 17073 . . . . . . . . . . . . . . . . . . . . . 3304, 3305
2398 . . . . . . . . . . . . . . . . . . . . . . . . . . 425 17074 . . . . . . . . . . . . . . . . . . . . . 3304, 3305
2727.5. . . . . . . . . . . . . . . . . .425, 450A, 450B 17076 . . . . . . . . . . . . . . . . . . . . . . . . . 3303
2861.5. . . . . . . . . . . . . . . . . . . . .450A, 450B 17077 . . . . . . . . . . . . . . . . . . . . . . . . . 3304
3706 . . . . . . . . . . . . . . . . . . . . . . . . . . 425 17082. . . . . . . . . . . . . . .3300, 3301, 3302, 3320
4840.6 . . . . . . . . . . . . . . . . . . . . . . . . . 425 23025. . . . . . . . . . . . . . . . . . . . . . . . . .422
7026 . . . . . . . . . . . . . . . . . . . . . . 4560, 4562 25602.1. . . . . . . . . . . . . . . . . . . . . .422, 709
7031. . . . . . . . . . . . . . . . . . . . . . . . . .4560
7031(a) . . . . . . . . . . . . . . . . . 4560, 4561, 4562 Civil Code
7031(b). . . . . . . . . . . . . . . . . . . . .4560, 4561 Sec. Inst.
7031(d). . . . . . . . . . . . . . . . . . . . .4560, 4562
14 . . . . . . . . . . . . . . . . . . . . . . . . 104, 5006
7031(e) . . . . . . . . . . . . . . . . . 4560, 4561, 4562
19 . . . . . . . . . . . . . . . . . . . . . . . 4406, 4407
7068(b)(3) . . . . . . . . . . . . . . . . . . . . . . 4560
41. . . . . . . . . . . . . . . . . . . . . . . . . . . .403
7150.1. . . . . . . . . . . . . . . . . . . . . . . . .4522
43.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . 513
7159.6. . . . . . . . . . . . . . . . . . . . . . . . .4522
43.6(b) . . . . . . . . . . . . . . . . . . . . . . . . . 511
7451 . . . . . . . . . . . . . . . . . . . . . . 2705, 3704
43.55 . . . . . . . . . . . . . . . . . . . . . . . . . 1406
10138 . . . . . . . . . . . . . . . . . . . . . . . . . 4104
43.55(a). . . . . . . . . . . . . . . . . . . . . . . .1406
16720 . . . . . . . . . . . 3400, 3407, 3420, 3421, 3423
43.92 . . . . . . . . . . . . . . . . . . . . . . . . . 503A
16720(a) . . . . . . . . . . . . . 3401, 3402, 3405, 3406
43.92(a) . . . . . . . . . . . . . . . . . . . . . . . 503A
16720(c) . . . . . . . . . . . . . . . . . . . . 3403, 3404
43.92(b). . . . . . . . . . . . . . . . . . . .503A, 503B
16725 . . . . . . . . . . . . . . . . . . . . . 3404, 3405
44 . . . . . . . . . . . . . . . . . . . . . . . 1700, 1701
16726. . . . . . . .3400, 3401, 3402, 3403, 3404, 3405
45. . . . . . . . . .1700, 1701, 1702, 1704, 1706, 1707
16727 . . . . . . . . . . . . . . . . . . 3420, 3421, 3423
45a . . . . . . . . . . . . . . . . 1700, 1701, 1703, 1705
16750(a) . . . . . . . . . . . . . . . . 3400, 3401, 3440
46. . . . . . . . . . . . . . . . .1700, 1701, 1706, 1707
17024 . . . . . . . . . . . . . . . . . . 3300, 3301, 3302
47 . . . . . . . . . . . . . 1501, 1605, 1723, 1730, 1731
17026 . . . . . . . . . . . . . . . . . . 3303, 3304, 3305
TS-1
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                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Civil Code—Cont. Civil Code—Cont.
Sec. Inst. Sec. Inst.
47(b) . . . . . . . . 1700, 1701, 1702, 1703, 1704, 1705 834 . . . . . . . . . . . . . . . . . . . . . . . . . . 2002
47(b)(4). . . . . . . . . . . . . . . . . . . . . . . .1730 846. . . . . . . . . . . . . . . . . . . . .1010, VF-1001
47(c) . 1700, 1701, 1702, 1703, 1704, 1705, 1723, 1730, 895 . . . . . . . . . . . . . . . . . . . 4550, 4551, 4570
1731, 2711 896 . . . . . . . . . . . . . . . . . . . . . . . . . . 4570
47(d) . 1700, 1701, 1702, 1703, 1704, 1705, 1724, 1730, 897 . . . . . . . . . . . . . . . . . . . . . . . . . . 4570
1731 936 . . . . . . . . . . . . . . . . . . . . . . . . . . 4570
48 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1723 941. . . . . . . . . . . . . . . . . . . . . . .4550, 4551
48.5(4) . . . . . . . . . . . . . . . . . . . . . . . . 1709 941(d) . . . . . . . . . . . . . . . . . . . . . 4550, 4551
48a . . . . . . . . . . . . . . . . . . . . . . .1709, 1810 942 . . . . . . . . . . . . . . . . . . . . . . . . . . 4570
48a(4)(b) . . . . . . . . . . . . . . . . 1701, 1703, 1705 943 . . . . . . . . . . . . . . . . . . . . . . . . . . 4570
48a(a) . . . . . . . . . . . . . . . . . . . . . . . . .1709 943(a) . . . . . . . . . . . . . . . . . . . . . 4550, 4551
50 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1304 943(b). . . . . . . . . . . . . . . . . . . . . . . . .4571
51 . 3060, 3061, 3062, 3066, 3067, 4323, VF-3031, VF- 944. . . . . . . . . . . . . . . . . . . . . . .4570, 4571
3032, VF-3035
945.5 . . . . . . . . . . . . . . . . . . . . . . . . . 4570
51(b) . . . . . . . . . . . . . . . . . . 3061, 3063, 3064
945.5(a). . . . . . . . . . . . . . . . . . . . . . . .4572
51(f) . . . . . . . . . . . . . . . . . . . . . . 3060, 3061
945.5(b). . . . . . . . . . . . . . . . . . . . . . . .4573
51.5 . . . . . . . . . . . . . . . . . . . . . . 3061, 3067
945.5(c). . . . . . . . . . . . . . . . . . . . . . . .4575
51.5(a) . . . . . . . . . . . . . . . . . . . . . . . . 3061
945.5(d). . . . . . . . . . . . . . . . . . . . . . . .4574
51.6 . . . . . . . . . . . . . . . . . . . . . . 3062, 3067
1052 . . . . . . . . . . . . . . . . . . . . . . . 326, 327
51.7 . . . . . . . . . . 3063, 3064, 3066, 3068, VF-3035
1088. . . . . . . . . . . . . . . . . . . . . . . . . .4110
51.9 . . . . . . . . . . . . . . . . . . . . . . 3065, 3068
1102. . . . . . . . . . . . . . . . . . . . . . . . . .1910
51.9(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 3065
1102.1(a) . . . . . . . . . . . . . . . . . . . . . . . 1910
52 . . . . . . . . . . . . . . . . . . . . 3060, 3061, 3066
1102.6. . . . . . . . . . . . . . . . . . . . . . . . .1910
52(a) . . . 3060, 3061, 3062, 3066, 3067, VF-3030, VF-
1102.13 . . . . . . . . . . . . . . . . . . . . . . . . 1910
3031, VF-3032, VF-3035
1431.2 . . . . . . . . 406, 3712, 3902, 3926, 3929, 3933
52(b) . . . . . . . . . 3063, 3064, 3066, 3068, VF-3035
1431.2(a) . . . . . . . . . . . . . . . . . . . . . . . 3933
52(b)(2) . . . . . . . . . . . . . . . . . . 3068, VF-3033
1431.2(b)(2) . . . . . . . . . . . . . . . . . . . . . 3920
52(h). . . . . . . . . . . .3060, 3061, 3062, 3066, 3067
1434 . . . . . . . . . . . . . . . . . . . . . . . 321, 322
52.1 . . . . . . . . . . . . . . . . . 3066, 4000, VF-3035
1436 . . . . . . . . . . . . . . . . . . . . . . . 321, 322
52.1(c) . . . . . . . . . . . . . . . . . . . . . . VF-3035
1439. . . . . . . . . . . . . . . . . . .2401, 2420, 2423
52.1(k) . . . . . . . . . . . . . . . . . . . . . . . . 3066
1440 . . . . . . . . . . . . . . . . . . . . . . . . . . 324
54 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3070
1500. . . . . . . . . . . . . . . . . . . . . . . . . .4327
54(c) . . . . . . . . . . . . . . . . . . . . . . . . . 3070
1511. . . . . . . . . . . . . . . . . . . . . . . . . .4532
54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 3070
1511(1) . . . . . . . . . . . . . . . . . . . . . . . . 4532
54.3 . . . . . . . . . . . . . . . . . . . . . . . . . . 3070
1530 . . . . . . . . . . . . . . . . . . . . . . . . . . 337
55.56 . . . . . . . . . . . . . . . . . . . . . . . . . 3070
1549 . . . . . . . . . . . . . . . . . . . . . . . . . . 303
55.56(a). . . . . . . . . . . . . . . . . . . . . . . .3070
1550 . . . . . . . . . . . . . . . . . . . . . . . . . . 302
55.56(b). . . . . . . . . . . . . . . . . . . . . . . .3070
1556 . . . . . . . . . . . . . . . . . . . . . . . . . . 302
55.56(e). . . . . . . . . . . . . . . . . . . . . . . .3070
1559 . . . . . . . . . . . . . . . . . . . . . . . . . . 301
55.56(f) . . . . . . . . . . . . . . . . . . . . . . . . 3070
1565 . . . . . . . . . . . . . . . . . . . . . . . . . . 302
55.57 . . . . . . . . . . . . . . . . . . . . . . . . . 3070
1567 . . . . . . . . . . . . 330, 331, 332, 333, 334, 335
56 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3071
1568 . . . . . . . . . . . . 330, 331, 332, 333, 334, 335
56.05(j) . . . . . . . . . . . . . . . . . . . . . . . . 3071
1569 . . . . . . . . . . . . . . . . . . . . . . . . . . 332
56.11 . . . . . . . . . . . . . . . . . . . . . . . . . 3071
1570 . . . . . . . . . . . . . . . . . . . . . . . . . . 332
56.20(b). . . . . . . . . . . . . . . . . . . . . . . .3071
1572. . . . . . . . . . . . . . . . . . . . . . .335, 1900
56.21 . . . . . . . . . . . . . . . . . . . . . . . . . 3071
TS-2
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
AS TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Civil Code—Cont. Civil Code—Cont.
Sec. Inst. Sec. Inst.
1573 . . . . . . . . . . . . . . . . . . . . . . 4100, 4111 1708.8. . . . . . . . . . . . . . . . . . . . . . . . .1800
1573(1) . . . . . . . . . . . . . . . . . . . . . . . . 4111 1708.85 . . . . . . . . . . . . . . . . . . . . . . . . 1810
1575 . . . . . . . . . . . . . . . . . . . 334, 3100, 3117 1708.85(a) . . . . . . . . . . . . . . . . . . . . . . 1810
1576 . . . . . . . . . . . . . . . . . . . . . . . 330, 331 1708.85(b) . . . . . . . . . . . . . . . . . . . . . . 1810
1577 . . . . . . . . . . . . . . . . . . . . . . . 330, 331 1709 . . . . . . . . . . . . . . . 1900, 1902, 1923, 1924
1578 . . . . . . . . . . . . . . . . . . . . . . . . . . 331 1710 . . . . . . . . . . . . . . . . . . . . . . 1902, 1903
1580 . . . . . . . . . . . . . . . . . . . . . . . . . . 302 1710(1) . . . . . . . . . . . . . . . . . . . . . . . . 1900
1585 . . . . . . . . . . . . . . . . . . . . . . . 309, 311 1710(2) . . . . . . . . . . . . . . . . . . . . . . . . 1903
1586 . . . . . . . . . . . . . . . . . . . . . . . . . . 308 1710(3) . . . . . . . . . . . . . . . . . . . . . . . . 1901
1587 . . . . . . . . . . . . . . . . . . . . . . . . . . 308 1710(4) . . . . . . . . . . . . . . . . . . . . . . . . 1902
1589 . . . . . . . . . . . . . . . . . . . . . . . . . . 310 1711. . . . . . . . . . . . . . . . . . . . . . . . . .1906
1605 . . . . . . . . . . . . . . . . . . . . . . . . . . 302 1714 . . . . . . . . . . . . . . . . . . . . . . . . . . 400
1614 . . . . . . . . . . . . . . . . . . . . . . . . . . 302 1714(a) . . . . . . . . . . . . . . . . . . . . . 400, 1000
1615 . . . . . . . . . . . . . . . . . . . . . . . . . . 302 1714(c). . . . . . . . . . . . . . . . . . . . . . . . .427
1619 . . . . . . . . . . . . . . . . . . . . . . . . . . 305 1714(d). . . . . . . . . . . . . . . . . . . . . . . . .427
1619 to 1621 . . . . . . . . . . . . . . . . . . . . . 2403 1714(d)(2) . . . . . . . . . . . . . . . . . . . . . . . 427
1620 . . . . . . . . . . . . . . . . . . . . . . . . . . 305 1714.1 . . . . . . . . . . . . . . . . . . . . . . . . . 428
1621 . . . . . . . . . . . . . . . . . . . . . . . . . . 305 1714.2 . . . . . . . . . . . . . . . . . . . . . . . . . 425
1622 . . . . . . . . . . . . . . . . . . . . . . . . . . 304 1714.45 . . . . . . . . . . . . . . . . . . . . . . . . 1248
1624 . . . . . . . . . . . . . . . . . . . . . . . . . . 304 1714.45(a) . . . . . . . . . . . . . . . . . . . . . . 1248
1625 . . . . . . . . . . . . . . . . . . . . . . . . . . 304 1714.45(a)(2) . . . . . . . . . . . . . . . . . . . . . 1248
1633.1 . . . . . . . . . . . . . . . . . . . . . . . . . 380 1734 to 1736 . . . . . . . . . . . . . . . . . . . . . 4510
1633.2(g). . . . . . . . . . . . . . . . . . . . . . . .380 1750. . . . . . . . . . . . . . . . . . . . . . . . . .4700
1633.2(h). . . . . . . . . . . . . . . . . . . . . . . .380 1761(e) . . . . . . . . . . . . . . . . . . . . . . . . 4700
1633.5(b). . . . . . . . . . . . . . . . . . . . . . . .380 1769. . . . . . . . . . . . . . . . . . . . . . . . . .3211
1633.7 . . . . . . . . . . . . . . . . . . . . . . . . . 380 1770(a) . . . . . . . . . . . . . . . . . . . . . . . . 4700
1633.7(d). . . . . . . . . . . . . . . . . . . . . . . .380 1770(a)(4) . . . . . . . . . . . . . . . . . . . . . . 4700
1633.8(a). . . . . . . . . . . . . . . . . . . . . . . .380 1770(a)(9) . . . . . . . . . . . . . . . . . . . . . . 4700
1633.9 . . . . . . . . . . . . . . . . . . . . . . . . . 380 1770(a)(19) . . . . . . . . . . . . . . . . . . . . . . 4700
1636 . . . . . . . . . . . . . . . . . . . . . . . . . . 314 1780. . . . . . . . . . . . . . . . . . . . . . . . . .4710
1641 . . . . . . . . . . . . . . . . . . . . . . . . . . 317 1780(a) . . . . . . . . . . . . . . . . . . . . . . . . 4700
1644 . . . . . . . . . . . . . . . . . . . . . . . . . . 315 1780(b) . . . . . . . . . . . . . . . . . . . . . . . . 4702
1645 . . . . . . . . . . . . . . . . . . . . . . . . . . 316 1781. . . . . . . . . . . . . . . . . . . . . . . . . .4700
1647 . . . . . . . . . . . . . . . . . . . . . . . . . . 314 1782. . . . . . . . . . . . . . . . . . . . . . . . . .4701
1654 . . . . . . . . . . . . . . . . . . . . . . . . . . 320 1782(a) . . . . . . . . . . . . . . . . . . . . . . . . 4701
1655. . . . . . . . . . . . . . . . . . . . . . . . . .4502 1782(c) . . . . . . . . . . . . . . . . . . . . . . . . 4710
1656. . . . . . . . . . . . . . . . . . . . . . . . . .4502 1784. . . . . . . . . . . . . . . . . . . . . . . . . .4710
1657 . . . . . . . . . . . . . . . . . . . . . . . . . . 319 1790.1. . . . . . . . . . . . . . . . . . . . . . . . .3222
1668 . . . . . . . . . . . . . . . . . . . . . . . . . . 451 1790.3. . . . . . . . . . . . . . . . . .3200, 3201, 3222
1671(b) . . . . . . . . . . . . . . . . . . . . . . . . 4532 1791(a). . . . . . . . . . . . . . . . . . . . .3200, 3241
1689 . . . . . . . . . . . . . . . . . . . . . . . . . . 331 1791(g) to (i) . . . . . . . 3200, 3201, 3210, 3211, 3221
1689(b)(1) . . . . . . . . . . . . . . . . 331, 2308, 2309 1791.1(a) . . . . . . . . . . . . . . . . . . . . . . . 3210
1697 . . . . . . . . . . . . . . . . . . . . . . . . . . 313 1791.1(b) . . . . . . . . . . . . . . . . . . . . . . . 3211
1698 . . . . . . . . . . . . . . . . . . . 313, 4521, 4522 1791.1(c). . . . . . . . . . . . . . . . . . . .3210, 3212
1708.5. . . . . . . . . . . . . . . . . . . . . . . . .1306 1791.1(d). . . . . . . . . . . . .3210, 3211, 3240, 3241
1708.7. . . . . . . . . . . . . . . . . .1800, 1808, 4328 1791.2 . . . . . . . . . . . . . . . . . . . . . 3200, 3201
TS-3
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Civil Code—Cont. Civil Code—Cont.
Sec. Inst. Sec. Inst.
1791.3. . . . . . . . . . . . . . . . . . . . . . . . .3221 1941.1. . . . . . . . . . . . . . . . . . . . . . . . .4320
1792. . . . . . . . . . . . . . . . . . . . . . . . . .3210 1941.1(a) . . . . . . . . . . . . . . . . . . . . . . . 4320
1792.1. . . . . . . . . . . . . . . . . . . . . . . . .3211 1941.2 . . . . . . . . . . . . . . . . . . . . . 4320, 4326
1792.2(a) . . . . . . . . . . . . . . . . . . . . . . . 3211 1941.2(b). . . . . . . . . . . . . . . . . . . .4320, 4326
1792.3 . . . . . . . . . . . . . . . . . . . . . 3211, 3221 1942. . . . . . . . . . . . . . . . . . . . . . . . . .4326
1792.4. . . . . . . . . . . . . . . . . . . . . . . . .3221 1942.4(a) . . . . . . . . . . . . . . . . . . . . . . . 4320
1792.4(b) . . . . . . . . . . . . . . . . . . . . . . . 3221 1942.5 . . . . . . . . . . . . . . . . . . . . . 4321, 4322
1792.5. . . . . . . . . . . . . . . . . . . . . . . . .3221 1942.5(a) . . . . . . . . . . . . . . . . . . . . . . . 4321
1793. . . . . . . . . . . . . . . . . . . . . . . . . .3221 1942.5(d) . . . . . . . . . . . . . . . . . . . . . . . 4322
1793.1(a)(2). . . . . . . . . . . . . . .3200, 3201, 3231 1942.5(f). . . . . . . . . . . . . . . . . . . .4321, 4322
1793.2. . . . . . . . . . .3200, 3201, 3211, 3230, 3241 1942.5(g). . . . . . . . . . . . . . . . . . . .4321, 4322
1793.2(B) . . . . . . . . . . . . . . . . . . . 3230, 3205 1942.5(j) . . . . . . . . . . . . . . . . . . . . . . . 4321
1793.2(c). . . . . . . . . . . . . . . . . . . .3200, 3201 1944. . . . . . . . . . . . . . . . . . . . . . . . . .4306
1793.2(d). . . . . . . . . . . . .3200, 3202, 3203, 3205 1945. . . . . . . . . . . . . . . . . . . . . . . . . .4324
1793.2(d)(1) . . . . . . . . . . . . . . . . . . . . . 3240 1946. . . . . . . . . . . . . . . . . . .4306, 4307, 4340
1793.2(d)(2). . . . . . . . . . . . . . .3201, 3203, 3241 1946.1. . . . . . . . . . . . . . . . . .4306, 4307, 4340
1793.2(d)(2)(A). . . . . . . . . . . . . . . . . . . .3230 1946.1(b)-(d). . . . . . . . . . . . . . . . . .4306, 4307
1793.2(d)(2)(B) . . . . . . . . . . . . . . . . 3241, 3242 1946.1(f) . . . . . . . . . . . . . . . . . . . . . . . 4307
1793.2(d)(2)(C) . . . . . . . . . . . . . . . . 3230, 3241 1946.2. . . .4300, 4301, 4302, 4303, 4304, 4305, 4306,
1793.22 . . . . . . . . . . . . . . . . . . . . . . . . 3205 4307, 4308, 4309, 4325
1793.22(b) . . . . . . . . . . . . . . . . . . . . . . 3203 1946.2(a) . . 4301, 4303, 4304, 4305, 4306, 4307, 4308,
1793.22(b)(3). . . . . . . . . . . . . . . . . . . . .3203 4309
1793.22(e)(2) . . . . . . . . . . . . . . . . . . . . . 3201 1946.2(b) . . . . . . . . . . . . . . . . . . . . . . . 4300
1793.22(f). . . . . . . . . . . . . . . . . . . . . . .3206 1946.2(c) . . . . . . . . . . . . . . . . . . . . . . . 4304
1793.22(f)(1) . . . . . . . . . . . . . . . . . . . . . 3206 1952.3(a). . . . . . . . . . . . .4301, 4302, 4304, 4306
1793.23 . . . . . . . . . . . . . . . . . . . . . . . . 3206 1954.53(d)(4). . . . . . . . . . . . . . . . . . . . .4324
1793.24 . . . . . . . . . . . . . . . . . . . . . . . . 3206 1954.535 . . . . . . . . . . . . . . . . . . . . . . . 4306
1794. . . . . . . . . . . . . . . . . . .3205, 3241, 3244 1955. . . . . . . . . . . . . . . . . . . . . . . . . .1224
1794(a) . . . . . . . 3200, 3201, 3205, 3206, 3210, 3211 2079. . . . . . . . . . . . . . . . . . .4107, 4108, 4109
1794(b) . . . 3205, 3210, 3211, 3240, 3241, 3242, 3243 2079(a) . . . . . . . . . . . . . . . . . . . . . . . . 4108
1794(b)(1) . . . . . . . . . . . . . . . . . . . 3242, 3243 2079.3. . . . . . . . . . . . . . . . . . . . . . . . .4108
1794(b)(2) . . . . . . . . . . . . . . . . . . . 3242, 3243 2079.16 . . . . . . . . . . . . . . . . . . . . . . . . 4109
1794(c) . . . . . . . . . . . . . . . . . . . . . . . . 3244 2085 . . . . . . . . . . . . . . . . . . . . . . . 900, 901
1794(e) . . . . . . . . . . . . . . . . . . . . . . . . 3244 2100 . . . . . . . . . . . . . . . . . . . . . . . 901, 902
1794(e)(5) . . . . . . . . . . . . . . . . . . . . . . 3244 2101 . . . . . . . . . . . . . . . . . . . . . . . . . . 903
1794.3. . . . . . . . . . . . . . . . . . . . . . . . .3220 2168 . . . . . . . . . . . . . . . . . . . . . . . 900, 901
1795 . . . . . . . . . . . . . . . . . . . . . . 3200, 3201 2295 . . . . . . . . . . . . . . . 3700, 3701, 3704, 3705
1795.4. . . . . . . . . . .3200, 3201, 3210, 3211, 3221 2298 . . . . . . . . . . . . . . . . . . . . . . 3709, 3714
1795.4(e) . . . . . . . . . . . . . . . . . . . . . . . 3221 2300 . . . . . . . . . . . . . . . . . . . . . . 3709, 3714
1795.5 . . . . . . . . . . . . . . . . . . . . . 3200, 3212 2307. . . . . . . . . . . . . . . . . . . . . . . . . .3710
1795.5(c) . . . . . . . . . . . . . . . . . . . . . . . 3212 2310. . . . . . . . . . . . . . . . . . . . . . . . . .3710
1795.6 . . . . . . . . . . . . . . 3200, 3201, 3212, 3231 2311. . . . . . . . . . . . . . . . . . . . . . . . . .3710
1795.6(b) . . . . . . . . . . . . . . . . . . . . . . . 3231 2315. . . . . . . . . . . . . . . . . . . . . . . . . .2307
1927. . . . . . . . . . . . . . . . . . . . . . . . . .4328 2317 . . . . . . . . . . . . . . . . . . . . . . 3709, 3714
1929. . . . . . . . . . . . . . . . . . . . . . . . . .4326 2334 . . . . . . . . . . . . . . . . . . . . . . 3709, 3714
1941 . . . . . . . . . . . . . . . . . . . . . . 4320, 4326 2338. . . . . . . . . . . . . . . . . . . . . . . . . .3700
TS-4
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
AS TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Civil Code—Cont. Civil Code—Cont.
Sec. Inst. Sec. Inst.
2339. . . . . . . . . . . . . . . . . . . . . . . . . .3710 3288—Cont. . . VF-2703, VF-2704, VF-2705, VF-2800,
2920.5. . . . . . . . . . . . . . . . . . . . . . . . .4910 VF-2801, VF-2802, VF-2803, VF-2804, VF-2805,
2923.4 to 2923.7 . . . . . . . . . . . . . . . . . . . 4910 VF-2900, VF-2901, VF-3000, VF-3001, VF-3002,
VF-3010, VF-3011, VF-3012, VF-3013, VF-3020,
2923.6. . . . . . . . . . . . . . . . . . . . . . . . .4910
VF-3021, VF-3022, VF-3023, VF-3030,
2923.7. . . . . . . . . . . . . . . . . . . . . . . . .4910
VF-3031, VF-3032, VF-3033, VF-3034, VF-3035, VF-
2923.55 . . . . . . . . . . . . . . . . . . . . . . . . 4910
3100, VF-3101, VF-3102, VF-3103, VF-3104, VF-
2924. . . . . . . . . . . . . . . . . . . . . . . . . .4910
3105, VF-3106, VF-3107, VF-3200, VF-3202, VF-
2924.9. . . . . . . . . . . . . . . . . . . . . . . . .4910 3206, VF-3300, VF-3301, VF-3302, VF-3303, VF-
2924.9 to 2924.12 . . . . . . . . . . . . . . . . . . 4910 3304, VF-3305, VF-3306,
2924.10 . . . . . . . . . . . . . . . . . . . . . . . . 4910 VF-3307, VF-3400, VF-3401, VF-3402, VF-3403, VF-
2924.11 . . . . . . . . . . . . . . . . . . . . . . . . 4910 3404, VF-3405, VF-3406, VF-3407, VF-3408, VF-
2924.12(b) . . . . . . . . . . . . . . . . . . . . . . 4910 3409, VF-3500, VF-3501, VF-3502, VF-3700, VF-
2924.15 . . . . . . . . . . . . . . . . . . . . . . . . 4910 3905, VF-3906, VF-4200, VF-4201, VF-4202, VF-
4400, VF-4600, VF-4601, VF-4602
2924.17 . . . . . . . . . . . . . . . . . . . . . . . . 4910
3289 . . . . . . . . . . . . . . . . . . . . . . . 355, 356
2924.17 to 2924.20. . . . . . . . . . . . . . . . . .4910
3294 . 1623, 2003, 2500, 3940, 3941, 3942, 3943, 3944,
2924c . . . . . . . . . . . . . . . . . . . . . . . . . 4920
3945, 3946, 3947, 3948, 3949
3281. . . . . . . . . . . . . . . . . . . . . . . . . .3900
3294(a) . . . . . . . . . . . . . . . . . . . . . . . 3903P
3283 . . . . . . . . . . . . 359, 1700, 1702, 1704, 3900
3294(b).3102A, 3102B, 3903P, 3943, 3944, 3945, 3946,
3287. . . . . . . . . . . . . . . . . . . . . . .356, 3935
3947, 3948
3288.3935, VF-400, VF-401, VF-402, VF-403, VF-404,
3294(c) . . . . . . . . . . . . . . . . . . . . . . . . 1623
VF-405, VF-406, VF-407, VF-408, VF-409, VF-411,
3294(c)(1). . . . . . . . . . . . . . . . . . . . . . .3114
VF-500, VF-501, VF-502, VF-702, VF-703, VF-704,
VF-1000, VF-1001, VF-1002, VF-1100, VF-1101, 3294(c)(2). . . . . . . . . . . . . . . . . . . . . . .3115
VF-1200, VF-1201, 3294(c)(3). . . . . . . . . . . . . . . . . . . . . . .3116
VF-1203, VF-1204, VF-1205, VF-1300, VF-1301, VF- 3294(d). . . . . . . . . . . . . . . . . . . . .3921, 3922
1302, VF-1303A, VF-1303B, VF-1400, VF-1401, 3295 . . . . . . . . 3941, 3942, 3944, 3946, 3948, 3949
VF-1402, VF-1403, VF-1404, VF-1405, VF-1406, 3295(d) . . . . . . . . . . 3941, 3942, 3944, 3948, 3949
VF-1407, VF-1500, VF-1501, VF-1502, VF-1503, 3300 . 350, 351, 354, 356, 357, 2406, 2422, 4530, 4531
VF-1504, VF-1600, VF-1601,
3301. . . . . . . . . . . . . . . . . . . . .350, 352, 353
VF-1602, VF-1603, VF-1604, VF-1605, VF-1606, VF-
3302 . . . . . . . . . . . . . . . . . . . . . . . . . . 355
1700, VF-1701, VF-1702, VF-1703, VF-1704, VF-
3306 . . . . . . . . . . . . . . . . . . . . . . . . . . 356
1705, VF-1720, VF-1721, VF-1800, VF-1801, VF-
3307 . . . . . . . . . . . . . . . . . . . . . . . . . . 357
1802, VF-1803, VF-1804, VF-1807, VF-1900, VF-
1901, VF-1902, VF-1903, 3333 . . . . . . . 1921, 1923, 1924, 3900, 3903K, 4101
VF-2000, VF-2001, VF-2002, VF-2003, VF-2004, VF- 3333.1 . . . . . . . . . . . . . . . . . . . . . . . . . 500
2005, VF-2006, VF-2100, VF-2200, VF-2201, VF- 3333.2. . . . . . . . . . . . . . . . . . . . . .500, 3902
2202, VF-2203, VF-2301, VF-2303, VF-2404, VF- 3333.2(b). . . . . . . . . . . . .3101, 3104, 3107, 3109
2405, VF-2406, VF-2407, VF-2408, VF-2500, VF- 3333.2(c)(2) . . . . . . . . . . . . . . . . . . . . . 3103
2501, VF-2502, VF-2503, 3334 . . . . . . . . . . . . . . . . . . . . 3903F, 3903G
VF-2504, VF-2505, VF-2506A, VF-2506B, VF-2506C, 3334(a) . . . . . . . . . . . . . . . . . . . . . . . 3903F
VF-2507A, VF-2507B, VF-2507C, VF-2508, VF-
3336. . . . . . . . . . . . . . . . . . . . . . . . . .2102
2509, VF-2510, VF-2511, VF-2512, VF-2513, VF-
3337. . . . . . . . . . . . . . . . . . . . . . . . . .2102
2514, VF-2515, VF-2600, VF-2601, VF-2602, VF-
3342 . . . . . . . . . . . . . . . . . . . . . 462, VF-409
2700, VF-2701, VF-2702,
TS-5
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                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Civil Code—Cont. Civil Code—Cont.
Sec. Inst. Sec. Inst.
3342(a). . . . . . . . . . . . . . . . . . . . . . . . .463 3439.08(b)(1)(A) . . . . . . . . . . . . . . . 4200, 4202
3343. . . . . . . . . . . .1920, 1921, 1922, 1923, 1924 3439.08(f)(1) . . . . . . . . . . . . . . . . . . . . . 4207
3343(a)(4) . . . . . . . . . . . . . . . . . . . . . . 1921 3439.09 . . . . . . . . . . . . . . . . . . . . . . . . 4208
3344 . . . . . . . . . . . . . 1803, 1804A, 1804B, 1821 3439.09(a) . . . . . . . . . . . . . . . . . . . . . . 4208
3344(a). . . . . . . . . .1804A, 1804B, 1821, VF-1804 3439.09(b) . . . . . . . . . . . . . . . . . . . . . . 4208
3344(d) . . . . . . . . . . . . . 1804A, 1804B, VF-1804 3439.09(c) . . . . . . . . . . . . . . . . . . . . . . 4208
3344(g). . . . . . . . . . . . . . . . . . .1804A, 1804B 3479. . . . . . . . . . . . . . . . . . .2020, 2021, 4308
3346 . . . . . . . . . . . . . . . . . . . . . . 2002, 2003 3480. . . . . . . . . . . . . . . . . . . . . . . . . .2020
3346(a) . . . . . . . . . . . . . . . 2002, 2003, VF-2003 3482 . . . . . . . . . . . . . . . . . . . . . . 2020, 2021
3346(c) . . . . . . . . . . . . . . . . . . . . . . . . 2030 3482.8. . . . . . . . . . . . . . . . . . . . . . . . .2020
3355. . . . . . . . . . . . . . . . . . . . . . . . .3903L 3490. . . . . . . . . . . . . . . . . . . . . . . . . .2030
3358 . . . . . . . . . . . . . . . . . . . . . . . . . . 350 3493. . . . . . . . . . . . . . . . . . . . . . . . . .2020
3359 . . . . . . . . . . . . . 350, 354, 3900, 4530, 4531 3515. . . . . . . . . . . . . . . . . . .1300, 1302, 1306
3360 . . . . . . . . . . . . . . . . . . . . . . . . . . 360 3624.1(b)(2) . . . . . . . . . . . . . . . . . . 4406, 4407
3361. . . . . . . . . . . . . . . . .3903C, 3903D, 3906 3904.05 . . . . . . . . . . . . . . . . . . . . . . . . 4205
3416.3(b) . . . . . . . . . . . . . . . . . . . . . . . 4409
3425.3. . . . . . . . . . . . . . . .1722, 1804A, 1804B Code of Civil Procedure
3426.1 . . . . . . . . . . . . . . 4400, 4401, 4408, 4420 Sec. Inst.
3426.1(a) . . . . . . . . . . . . . . . . . . . . . . . 4408
2.37 . . . . . . . . . . . . . . . . . . . . . . . 106, 5002
3426.1(b)(1). . . . . . . . . . . . . . .4400, 4401, 4405
2.38 . . . . . . . . . . . . . . . . . . . . . . . 106, 5002
3426.1(b)(2) . . . . . . . . . . . . . . . . . . 4406, 4407
3.89 . . . . . . . . . . . . . . . . . . . . . . . 111, 5015
3426.1(d) . . . . . . . . . . . . . . . . 4402, 4412, 4420
3.95. . . . . . . . . . . . . . . . . . . . . . . . . . .116
3426.1(d)(1) . . . . . . . . . . . . . . . . . . . . . 4420
3.96. . . . . . . . . . . . . . . . . . . . . . . . . . .112
3426.2(b) . . . . . . . . . . . . . . . . . . . . . . . 4409
3.97 . . . . . . . . . . . . . . . . . . . . . . . 102, 5010
3426.3 . . . . . . . . . . . . . . . . . . . . . 4409, 4410
3.99. . . . . . . . . . . . . . . . . . . . . . . . . . .106
3426.3(b) . . . . . . . . . . . . . . . . . . . . . . . 4409
3.100 . . . . . . . . . . . . . . . . . . . . . . . . . . 101
3426.3(c) . . . . . . . . . . . . . . . . . . . . . . . 4411
3.106 . . . . . . . . . . . . . . . . . . . . . . . 206, 207
3426.4. . . . . . . . . . . . . . . . . . . . . . . . .4411
5.21. . . . . . . . . . . . . . . . . . . . . . . . . . .106
3426.6. . . . . . . . . . . . . . . . . . . . . . . . .4421
5.29. . . . . . . . . . . . . . . . . . . . . . . . . . .106
3439. . . . . . . . . . . . . . . . . . . . . . . . . .4200
5.39. . . . . . . . . . . . . . . . . . . . . . . . . . .106
3439.01(a) . . . . . . . . . . . . . . . . . . . . . . 4205
5.44. . . . . . . . . . . . . . . . . . . . . . . . . . .204
3439.01(b) . . . . . . . . . . . . . . . . . . . . . . 4200
7.23 . . . . . . . . . . . . . . . . . . . . . . . . . . 5018
3439.01(m) . . . . . . . . . . . . . . . . . . . . . . 4204
7.24 . . . . . . . . . . . . . . . . . . . . . . . . . . 5021
3439.02 . . . . . . . . . . . . . . . . . . . . 4205, 4206
7.30 . . . . . . . . . . . . . . . . . . . . . . . . . . 5020
3439.02(b) . . . . . . . . . . . . . . . . . . . . . . 4206
8.34. . . . . . . . . . . . . . . . . . . . . . . .215, 216
3439.02(c) . . . . . . . . . . . . . . . . . . . . . . 4205
8.41. . . . . . . . . . . . . . . . . . . . . . . . . . .215
3439.02(d) . . . . . . . . . . . . . . . . . . . . . . 4205
8.53. . . . . . . . . . . . . . . . . . . . . . . . . . .112
3439.03 . . . . . . . . . . . . . . . . . 4202, 4203, 4207
8.72. . . . . . . . . . . . . . . . . . . . . . . .107, 223
3439.04 . . . . . . . . . . . . . . . . . . . . 4202, 4203
8.74. . . . . . . . . . . . . . . . . . . . . . . . . . .211
3439.04(a)(1) . . . . . . . . . . . . . . 4200, 4205, 4208
8.92. . . . . . . . . . . . . . . . . . . . . . . . . . .220
3439.04(a)(2) . . . . . . . . . . . . . . 4202, 4205, 4208
8.105 . . . . . . . . . . . . . . . . . . . . . . . . . . 224
3439.04(b) . . . . . . . . . . . . . . . . . . . . . . 4201
8.119 . . . . . . . . . . . . . . . . . . . . . . 108, 5008
3439.05 . . . . . . . . . . . . . . . . . 4202, 4203, 4208
9.27. . . . . . . . . . . . . . . . . . . . . . . . . . .109
3439.07 . . . . . . . . . . . . . . . . . . . . . . . . 4200
11.9 . . . . . . . . . . . . . . . . . . . . . . . 106, 5002
3439.08(a) . . . . . . . . . . . . . . . . . . . 4200, 4207
11.10 . . . . . . . . . . . . . . . . . . . . 203, 204, 205
3439.08(b)(1). . . . . . . . . . . . . . . . . . . . .4203
TS-6
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
AS TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Code of Civil Procedure—Cont. Code of Civil Procedure—Cont.
Sec. Inst. Sec. Inst.
11.35 . . . . . . . . . . . . . . . . . . . . . . 106, 5002 340(c). . . . . . . . . . . . . . . . . . . . . . . . .1722
12.6 . . . . . . . . . . . . . . . . . . . . . . . 100, 5000 340.2(c) . . . . . . . . . . . . . . . . . . . . . . . . 454
12.26 . . . . . . . . . . . . . . . . . . . . . . . 206, 207 340.5. . . . . . . . . . . . . . .457, 500, 555, 556, 610
12.30 . . . . . . . . . . . . . . . . . . . . . . . . . 5016 340.6. . . . . . . . . . .457, 555, 610, 611, 4120, 4421
12.33 . . . . . . . . . . . . . . . . . . . . . . . . . 5016 340.6(a) . . . . . . . . . . . . . . . . . . . . . . . . 606
13.8 . . . . . . . . . . . . . . . . . . . . . . . . . . 5009 343 . . . . . . . . . . . . . . . . . . . . . . . . . . 4120
13.10 . . . . . . . . . . . . . . . . . . . . . . 110, 5004 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . 555
13.14 . . . . . . . . . . . . . . . . . . . . . . . . . 5015 352 . . . . . . . . . . . . . . . . . . . . . 556, 610, 611
13.19 . . . . . . . . . . . . . . . . . . . . . . . . . 5014 352.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 555
13.27. . . . . . . . . . . . . . . . . . . . . .5000, 5021 364 . . . . . . . . . . . . . . . . . . . . . . . . 555, 556
13.32 . . . . . . . . . . . . . . . . . . . . . . . . . 5009 364(a) . . . . . . . . . . . . . . . . . . . . . . . . . 555
13.37 . . . . . . . . . . . . . . . . . . . . . . . . . 5011 364(d). . . . . . . . . . . . . . . . . . . . . . .555, 556
13.43 . . . . . . . . . . . . . . . . . . . . . . . . . 5013 377. . . . . . . . . . . . . . . . . . . . . . .3921, 3922
13.50. . . . . . . . . . . . . . . . . . . .100, 116, 5009 377.34 . 3903Q, VF-3100, VF-3101, VF-3103, VF-3105,
13.51 . . . . . . . . . . . . . . . . . . . . . . . 100, 116 VF-3107
13.53 . . . . . . . . . . . . . . . . . . . . . . . . . 5009 377.60 . . . . . . . . . . . . . . . . . . . . . 3921, 3922
13.58 . . . . . . . . . . . . . . . . . . . . . . . . . . 100 377.61 . . . . . . . . . . . . . . . . . . . . . 3921, 3922
13.59 . . . . . . . . . . . . . . . . . . . . . . . . . 5009 382 . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
14.6 . . . . . . . . . . . . . . . . . . . . . . . . . . 5009 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
14.14 . . . . . . . . . . . . . . . . . . . . . . . . . 5012 581c(c) . . . . . . . . . . . . . . . . . . . . . . . . 1501
14.21 . . . . . . . . . . . . . . . . . . . . . . . . . 5009 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
14.28 . . . . . . . . . . . . . . . . . . . . . . . . . 5017 608 . . . . . . . . . . . . . . . . . . . . . . . 100, 5000
14.40 . . . . . . . . . . . . . . . . . . . . . . . . . 5090 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
203(a)(6) . . . . . . . . . . . . . . . . . . . . 110, 5004 613 . . . . . . . . . . . . . . . . . . . . . . . . . . 5009
224 . . . . . . . . . . . . . . . . . . . . . . . 110, 5004 614. . . . . . . . . . . . . . . . . . . . . . .5009, 5011
234 . . . . . . . . . . . . . . . . . . . . . . . 111, 5015 618. . . . . . . . . . . . . . . . . . . . . . .5009, 5017
322 . . . . . . . . . . . . . . . . . . . . . . . . . . 4900 624 . . . . . . . . . . . . . . . . . . . . . . . . . . 5012
324 . . . . . . . . . . . . . . . . . . . . . . . . . . 4900 625 . . . . . . . . . . . . . . . . . . . . . . . . . . 5012
325 . . . . . . . . . . . . . . . . . . . . . . . . . . 4900 657 . . . . . . . . . . . . . . . . . . . . . . . . . . 5009
325(b). . . . . . . . . . . . . . . . . . . . . . . . .4900 731a. . . . . . . . . . . . . . . . . . . . . . . . . .2000
335.1 . . . . . . . . . . . . . . . . . . . . . . . . . . 454 733. . . . . . . . . . . . . . . . . . . . . . .2002, 2003
337(1) . . . . . . . . . . . . . . . . . . . . . . . . . 338 877 . . . . . . . . . . . . . . . . . . . . . . . . . . 3926
337(a) . . . . . . . . . . . . . . . . . . . . . . . . . 338 877.5(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 222
337.1 . . . . . . . . . . . . . . . . . . . . . . . . . 4550 877.6. . . . . . . . . . . . . . . . . . . . . .2360, 3801
337.1(b). . . . . . . . . . . . . . . . . . . . . . . .4550 1013 . . . . . . . . . . . . . . . 4303, 4305, 4307, 4309
337.15 . . . . . . . . . . . . . . . . . . . . . 4532, 4551 1161. . . . . . . . . . . .4301, 4303, 4304, 4305, 4340
337.15(g) . . . . . . . . . . . . . . . . . . . . . . . 4551 1161(1) . . . . . . . . . . . . . . . . . . . . . . . . 4306
337a . . . . . . . . . . . . . . . . . . . . . . . . . . 372 1161(2) . . . . . . . . . . . . . . . 4302, 4303, VF-4300
338 . . . . . . . . . . . . . . . . . . . 2030, 4120, 4551 1161(3) . . . 4300, 4301, 4302, 4304, 4305, 4306, 4308
338(a). . . . . . . . . . . . . . . . . . . . . . . . .3222 1161(4). . . . . . . . . . . . . .4304, 4305, 4308, 4309
338(b). . . . . . . . . . . . . . . . . . . . . . . . .2030 1161.1. . . . . . . . . . . . . . . . . . . . . . . . .4303
338(c) . . . . . . . . . . . . . . . . . . . . . . . . . 454 1161.1(a) . . . . . . . . . . . . . . . . . . . . . . . 4303
338(d) . . . . . . . . . . . . . . . . . . . . . 1925, 4120 1161.1(c) . . . . . . . . . . . . . . . . . . . . . . . 4324
339(1) . . . . . . . . . . . . . . . . . . . . . . . . . 338 1161.1(e) . . . . . . . . . . . . . . . . . . . . . . . 4303
340 . . . . . . . . . . . . . . . . . . . . . . . . . . 1722 1161.3. . . . . . . . . . . . . . . . . . . . . . . . .4328
340(a). . . . . . . . . . . . . . . . . . . . . . . . .4560 1161.3(D). . . . . . . . . . . . . . . . . . . . . . .4328
TS-7
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Code of Civil Procedure—Cont. Code of Civil Procedure—Cont.
Sec. Inst. Sec. Inst.
1161.3(a)(1)(C). . . . . . . . . . . . . . . . . . . .4328 2061 . . . . . . . . . . . . . . . . . . . . . . . . . . 212
1161.3(a)(2). . . . . . . . . . . . . . . . . . . . . .4328
1161.3(b)(1)(B). . . . . . . . . . . . . . . . . . . .4328 Commercial Code
1161.3(d)(3) . . . . . . . . . . . . . . . . . . . . . 4328 Sec. Inst.
1162 . 4302, 4303, 4304, 4305, 4306, 4307, 4308, 4309
876 . . . . . . . . . . . . . . . . . . . . . . . . . . 3610
1171. . . . . . . . . . . . . . . . . . . . . . . . . .4300
1103. . . . . . . . . . . . . . . . . . . . . . . . . .3230
1174(b). . . . . . . . . . . . . . . . . . . . .4340, 4341
1202(d) . . . . . . . . . . . . . . . . . . . . . . . . 1243
1174.2 . . . . . . . . . . . . . . . . . . . . . 4320, 4342
1205(a) . . . . . . . . . . . . . . . . . . . . . . . . 1243
1174.2(a) . . . . . . . . . . . . . . 4320, 4342, VF-4301
1303. . . . . . . . . . . . . . . . . . . . . . . . . .1231
1179.01 . . . . . . . . . . . . . . . . . . . . 4302, 4303
2102. . . . . . . . . . . . . . . . . . . . . . . . . .1230
1179.02 . . . . . . . . . . . . . . . . . . . . 4302, 4303
2104(1) . . . . . . . . . . . . . . . . . . . . . . . . 1231
1179.03 . . . . . . . . . . . . . . . . . . . . . . . . 4303
2105. . . . . . . . . . . . . . . . . . . . . . . . . .1230
1179.04 . . . . . . . . . . . . . . . . . . . . . . . . 4303
2105(1) . . . . . . . . . . . . . . . . . . . . . . . . 1231
1209(a)(6). . . . . . . . . . . . . . . . . . . .100, 5000
2313 . . . . . . . . . . . . . . . . . . . . . . 1230, 1240
1219. . . . . . . . . . . . . . . . . . . . . . . . . .4328
2314. . . . . . . . . . . . . . . . . . .1231, 3210, 3211
1240.010 . . . . . . . . . . . . . . . . . . . . . . . 3500
2314(2) . . . . . . . . . . . . . 1231, VF-1207, VF-1208
1245.010 . . . . . . . . . . . . . . . . . . . . . . 3509B
2315. . . . . . . . . . . . . . . . . . .1232, 3210, 3211
1245.060 . . . . . . . . . . . . . . . . . . . . . . 3509B
2316. . . . . . . . . . . . . . . . . . . . . . . . . .1242
1260.030 . . . . . . . . . . . . . . . . . . . . . . . 3506
2316(1) . . . . . . . . . . . . . . . . . . . . . . . . 1241
1260.210 . . . . . . . . . . . . . . . . . . . . . . . 3514
2316(3) . . . . . . . . . . . . . . . . . . . . . .VF-1207
1260.220(b). . . . . . . . . . . . . . . . . . . . . .3508
2503. . . . . . . . . . . . . . . . . . . . . . . . . .3222
1260.230 . . . . . . . . . . . . . . . . . . . . . . . 3512
2607(3) . . . . . . . . . . 1243, 3200, 3201, 3210, 3211
1263.205(a). . . . . . . . . . . . . . . . . . . . . .3506
2711 . . . . . . . . . . . . . . . . . . . . . . 3242, 3243
1263.205(b). . . . . . . . . . . . . . . . . . . . . .3506
2711(1). . . . . . . . . . . . . . . . . . . . .3242, 3243
1263.210(a). . . . . . . . . . . . . . . . . . . . . .3506
2711 to 2715. . . . . . . . . . . . . . . . . .3205, 3240
1263.320 . . . . . . . . . . . . . . .3501, 3903J, 3903K
2712 . . . . . . . . . . . . . . . . . . . . . . 3242, 3243
1263.320(a). . . . . . . . . . . . . . . . . . . . . .2102
2712(2). . . . . . . . . . . . . . . . . . . . .3242, 3243
1263.330 . . . . . . . . . . . . . . . . . . . . . . . 3504
2713 . . . . . . . . . . . . . . . . . . . . . . 3242, 3243
1263.410 . . . . . . . . . . . . . . . . . . . 3511A, 3512
2713(1). . . . . . . . . . . . . . . . . . . . .3242, 3243
1263.420(a) . . . . . . . . . . . . . . . . . . . . .3511A
2714 . . . . . . . . . . . . . . . . . . . . . . 1230, 3210
1263.420(b) . . . . . . . . . . . . . . . . 3511A, 3511B
2714(1) . . . . . . . . . . . . . . . . . . . . . . . . 3211
1263.430. . . . . . . . . . . . . . .3511A, 3511B, 3512
2714(2) . . . . . . . . . . . . . . . . . . . . . . . . 3211
1263.510 . . . . . . . . . . . . . . . . . . . . . . . 3513
2715 . . . . . . . . . . . . . . . . . . . . . . 3242, 3243
1265.150 . . . . . . . . . . . . . . . . . . . . . . . 3508
2715(1) . . . . . . . . . . . . . . . . . . . . . . . . 3242
1265.160 . . . . . . . . . . . . . . . . . . . . . . . 3508
2715(2) . . . . . . . . . . . . . . . . . . . . . . . . 3243
1856 . . . . . . . . . . . . . . . . . . . . . . . . . . 304
2715(2)(a) . . . . . . . . . . . . . . . . . . . . . . 3243
1856(a). . . . . . . . . . . . . . . . . . . . . . . . .304
2725. . . . . . . . . . . . . . . . . . . . . . .338, 3222
1856(d). . . . . . . . . . . . . . . . . . . . . . . . .304
2725(1) . . . . . . . . . . . . . . . . . . . . . . . . 3222
1963(5). . . . . . . . . . . . . . . . . . . . . . . . .204
2725(2) . . . . . . . . . . . . . . . . . . . . . . . . 3222
1963(6). . . . . . . . . . . . . . . . . . . . . . . . .203
3420. . . . . . . . . . . . . . . . . . . . . . . . . .2102
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 208
2019.210 . . . . . . . . . . . . . . . . . . . . . . . 4401 Corporations Code
2025.510(g). . . . . . . . . . . . . . . . . . . . . .5018
Sec. Inst.
2025.620 . . . . . . . . . . . . . . . . . . . . . . . . 208
2030.410 . . . . . . . . . . . . . . . . . . . . . . . . 209 1. . . . . . . . . . . . . . . . . . . . . . . . .104, 5006
2033.010 . . . . . . . . . . . . . . . . . . . . . . . . 210 207 . . . . . . . . . . . . . . . . . . . . . . . 104, 5006
TS-8
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
AS TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Corporations Code—Cont. Evidence Code—Cont.
Sec. Inst. Sec. Inst.
16202 . . . . . . . . . . . . . . . . . . . . . . . . . 3711 500. . .200, 201, 450A, 450B, 2549, 3051, 3940, 3942,
16305(a) . . . . . . . . . . . . . . . . . . . . . . . 3711 3943, 3945, 3947, 3949, 4407
502 . . . . . . . . . . . . . . . . . . . . . . . . 200, 201
Education Code 520 . . . . . . . . . . . . . . . . . . . . . . . . . . 4407
Sec. Inst. 600(b) . . . . . . . . . . . . . . . . . . . . . . . . . 202
603 . . . . . . . . . . . . . . . . . . . . . . . . . . 2732
201 . . . . . . . . . . . . . . . . . . . . . . . . . . 3069
604. . . . . . . . . . . . . . . . . . . . .417, 518, 2732
220 . . . . . . . . . . . . . . . . . . . . . . . . . . 3069
605 . . . . . . . . . . . . . . . . . . . . . . . . . . 2732
262.3(b). . . . . . . . . . . . . . . . . . . . . . . .3069
606 . . . . . . . . . . . . . . . . . . . . . . . . . . 3301
48904(a)(1) . . . . . . . . . . . . . . . . . . . . . . 428
646 . . . . . . . . . . . . . . . . . . . . . . . . 417, 518
646(c). . . . . . . . . . . . . . . . . . . . . . .417, 518
Elections Code
669 . . . . . . . . . . . . . . . . . . . . . 418, 419, 423
Sec. Inst.
669(a) . . . . . . . . . . . . . . . . . . . . 418, 419, 420
2150. . . . . . . . . . . . . . . . . . . . . . . . . .4013 669(b)(1). . . . . . . . . . . . . . . . . . . . . . . .420
2208. . . . . . . . . . . . . . . . . . . . . . . . . .4013 669(b)(2). . . . . . . . . . . . . . . . . . . . . . . .421
2208(a) . . . . . . . . . . . . . . . . . . . . . . . . 4013 700 . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
720(a) . . . . . . . . . . . . . . . . . . . . . . . . . 219
Evidence Code 780 . . . . . . . . . . . . . . . . . . . . . . . 107, 5003
Sec. Inst. 788 . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
800 . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
801(a) . . . . . . . . . . . . . . . . . . . . . . . . . 219
2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
801(b) . . . . . . . . . . . . . . . . . . . . . . . . . 219
3 to 25 . . . . . . . . . . . . . . . . . . . . . . . . . 223
802 . . . . . . . . . . . . . . . . . . . . . . . . 219, 223
5. . . . . . . . . . . . . . . . . . . . . . . . . . . .5001
813(a). . . . . . . . . . . . . . . . . . . . . . . . .3515
23.01 to 23.11 . . . . . . . . . . . . . . . . . . . . 3515
813(b). . . . . . . . . . . . . . . . . . . . . . . . .3516
26 to 44 . . . . . . . . . . . . . . . . . . . . . . . . 219
815 to 820 . . . . . . . . . . . . . . . . . . .3501, 3502
32 to 36 . . . . . . . . . . . . . . . . . . . . . 206, 207
816 . . . . . . . . . . . . . . . . . . . . . . . . . . 3517
33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3516
823 . . . . . . . . . . . . . . . . . . . . . . . . . . 3501
103 . . . . . . . . . . . . . . . . . . . . . . . . . . 3515
913 . . . . . . . . . . . . . . . . . . . . . . . . 215, 216
108 . . . . . . . . . . . . . . . . . . . . . . . . . . 3517
913(a) . . . . . . . . . . . . . . . . . . . . . . . . . 216
115 . . . . . . . . . . . . . . . . . . . . . . . . 200, 201
913(b). . . . . . . . . . . . . . . . . . . . . . .215, 216
140 . . . . . . . . . . . . . . . . . . . . . . . 106, 5002
940 . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
145 to 153 . . . . . . . . . . . . . . . . . . . . . . . 217
1100 . . . . . . . . . . . . . . . . . . . . . . . . . . 223
240 . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
1106. . . . . . . . . . . . . . . . . . . . . . . . .2521A
312 . . . . . . . . . . . . . . 100, 106, 107, 5002, 5003
1152(a). . . . . . . . . . . . . . . . . . . . . . . . .217
312(a). . . . . . . . . . . . . . . . . . . . . . . . .5000
1155. . . . . . . . . . . . . . . . . . . . . . .105, 5001
352 . . . . . . . . . . . . . . . . . . . 105, 3903A, 5001
1220 . . . . . . . . . . . . . . . . . . . . . . . 212, 218
353 . . . . . . . . . . . . . . . . . . . . . . . 106, 5002
1221 . . . . . . . . . . . . . . . . . . . . . . . . . . 213
355 . . . . . . . . . . . . . . . . . . . . . . . . 206, 207
1250 . . . . . . . . . . . . . . . . . . . . . . . . . . 218
402(b). . . . . . . . . . . . . . . . . . . . . . . . .2305
1251 . . . . . . . . . . . . . . . . . . . . . . . . . . 218
403 . . . . . . . . . . . . . . . . . . . . . . . . 212, 213
1290(c). . . . . . . . . . . . . . . . . . . . . . . . .208
403(c) . . . . . . . . . . . . . . . . . . . 212, 213, 1203
1291(a). . . . . . . . . . . . . . . . . . . . . . . . .208
410 . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
1292(a). . . . . . . . . . . . . . . . . . . . . . . . .208
411 . . . . . . . . . . . . . . . . . . . . . . . 107, 5003
1521. . . . . . . . . . . . . . . . . . . . . . . . . .2305
412 . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
1521(a) . . . . . . . . . . . . . . . . . . . . . . . . 2305
413 . . . . . . . . . . . . . . . . . . . . . . . . 204, 205
TS-9
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Evidence Code—Cont. Government Code—Cont.
Sec. Inst. Sec. Inst.
1523(b) . . . . . . . . . . . . . . . . . . . . . . . . 2305 8547.2(b) . . . . . . . . . . . . . . . . . . . . . . . 4601
8547.2(c). . . . . . . . . . . . . . . . . . . .4601, 4602
Family Code 8547.2(d) . . . . . . . . . . . . . . . . . . . . . . . 4601
Sec. Inst. 8547.2(e) . . . . . . . . . . . . . . . . . . . . . . . 4601
8547.8. . . . . . . . . . . . . . . . . . . . . . . . .4601
911 . . . . . . . . . . . . . . . . . . . . . . . . . . 4204
8547.8(b) . . . . . . . . . . . . . . . . . . . . . . . 4601
6211. . . . . . . . . . . . . . . . . . . . . . . . . .4328
8547.8(c) . . . . . . . . . . . . . . . . . . . . . . . 4601
6910 . . . . . . . . . . . . . . . . . . . . . . . . . . 531
8547.8(e) . . . . . . . . . . . . . . 4601, 4602, VF-4601
Government Code 12650 . . . . . . . . . . . . . . . . . . . . . . . . . 4800
12650(a)(1) . . . . . . . . . . . . . . . . . . . . . . 4800
Sec. Inst.
12650(a) to (c) . . . . . . . . . . . . . . . . . . . . 4800
16.5(d) . . . . . . . . . . . . . . . . . . . . . . . . . 380 12651 . . . . . . . . . . . . . . . . . . . . . . . . . 4800
815.2 . . . . . . . . . . . . . . . . . . . . . . 426, 1503 12651(a) . . . . . . . . . . . . . . . . . . . . . . . 4800
815.2(a). . . . . . . . . . . . . . . . . . . . . . . .3700 12651(a)(1) . . . . . . . . . . . . . . . . . . . . . . 4600
815.2(b). . . . . . . . . . . . . . . . . . . . . . . .3700 12651(a)(2) to (8) . . . . . . . . . . . . . . . . . . 4600
815.4 . . . . . . . . . . . . . . . . . . . . . 1009B, 3713 12653 . . . . . . . . . . . . . . . . . . . . . . . . . 4600
815.6 . . . . . . . . . . . . . . . . . . . . . . . . . . 423 12653(a) . . . . . . . . . . . . . . . . . . . . . . . 4600
818 . . . . . . . . . . . . . . . . . . . . . . . . . . 3924 12900 to 12966. . . . . . . . . . . . . . . . . . . .2505
818.8 . . . . . . . . . . . . . . . . . . . . . . . . . 4501 12923 . .2521A, 2521B, 2521C, 2522A, 2522B, 2522C,
820.4 . . . . . . . . . . . . . . . 1401, 1405, 1407, 1408 2524
821.6 . . . . . . . . . . . . . . . 1500, 1501, 1502, 1503 12923(a). . . . .2521A, 2521B, 2521C, 2522A, 2522B,
830 . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 2522C, 2524
830(a). . . . . . . . . . . . . . . . . . . . . . . . .1102 12923(b) . . . . . . . . . . . . . . . . . . . . . . . 2524
830(c). . . . . . . . . . . . . . . . . . . . . . . . .1101 12923(c) . . . . . . . . . . . . . . . . . . . . . . . 2500
830(fog). . . . . . . . . . . . . . . . . . . . . . . .1121 12925(d) . . . . . . . . . . . . . . . 2505, 2520, 2521A
830.2 . . . . . . . . . . . . . . . . . . . . . . . . . 1102 12926(b) . . . . . . . . . . . . . . . . . . . . . . . 2570
830.4 . . . . . . . . . . . . . . . . . . . . . . . . . 1120 12926(d) . . . . . . . . . . . . . . . . . . . 2520, 2521A
830.6 . . . . . . . . . . . . . . . . . . . . . . 1123, 1124 12926(f). . . . . . . . . . . . . . . . . . . . . . . .2543
830.8 . . . . . . . . . . . . . . . . . . . . . . . . . 1121 12926(f)(2) . . . . . . . . . . . . . . . . . . . . . . 2543
831 . . . . . . . . . . . . . . . . . . . . . . . . . . 1122 12926(i) . .2540, 2541, 2547, 4329, VF-2508, VF-2509,
831.2 . . . . . . . . . . . . . . . . . . . . . . . . . 1110 VF-2510, VF-2513
831.7(c)(1)(E) . . . . . . . . . . . . . . . . . . . . . 425 12926(j) . .2540, 2541, 2547, 4329, VF-2508, VF-2509,
831.21. . . . . . . . . . . . . . . . . . . . . . . . .1110 VF-2510, VF-2513
835 . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 12926(j)(4). . . . . . . . . . . .2540, 2541, 2548, 2549
835(a) . . . . . . . . . . . . . . . . 1100, 1111, VF-1101 12926(m). . . . . . . . . . . . .2540, 2541, 2547, 4329
835(b) . . . . . . . . . . . . 1100, 1103, 1112, VF-1101 12926(m)(4) . . . . . . . . . . . 2540, 2541, 2548, 2549
835.2(a) . . . . . . . . . . . . . . . . . . . . 1100, 1103 12926(o) . 2500, 2521A, 2521B, 2521C, 2522A, 2522B,
2522C, 2540, 2547, 2548, 2549, 4329, VF-2500,
835.2(b) . . . . . . . . . . . . . . . . . 1100, 1103, 1104
VF-2501, VF-2506A, VF-2507A, VF-2515
835.4 . . . . . . . . . . . . . . . . . . . . . . 1111, 1112
12926(p) . . . . . . . . . . . . . . . . 2541, 2542, 2560
835.4(a) . . . . . . . . . . . . . . . . . . . . . . . . 1111
12926(r)(2). . . . . . . . . . . . . . . . . . . . . . .118
835.4(b). . . . . . . . . . . . . . . . . . . . . . . .1112
12926(t). . . . . . . . . . . . . . . . . . . . . . . .2525
905.2(h). . . . . . . . . . . . . . . . . . . . . . . .4601
12926(u) . . . . . . . . . . . . . . 2545, 2561, VF-2512
911.2 . . . . . . . . . . . . . . . . . . . . . . . . . 2030
12926(w) . . . . . . . . . . . . . . . . . . . . . . . 2500
985(b). . . . . . . . . . . . . . . . . . . . . . . . .3923
12926(x) . . . . . . . . . . . . . . . . . . . . . . . 2500
985(j) . . . . . . . . . . . . . . . . . . . . . . . . . 3923
12926.1(c) . . . . . . . . . . . . . . . 2540, 2541, 2542
8547 . . . . . . . . . . . . . . . . . . . . . . 4601, 4602
TS-10
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
AS TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Government Code—Cont. Government Code—Cont.
Sec. Inst. Sec. Inst.
12926.1(e) . . . . . . . . . . . . . . . . . . . . . . 2546 50086 . . . . . . . . . . . . . . . . . . . . . 450A, 450B
12927(c)(1) . . . . . . . . . . . . . . . . . . 2548, 2549
12927(d) . . . . . . . . . . . . . . . . . . . . 2548, 2549 Health and Safety Code
12940 . . . . . . . . . . . . . . . . 2505, 2561, VF-2512 Sec. Inst.
12940(a) . . 2441, 2500, 2502, 2505, 2507, 2540, 2541,
1317(f) . . . . . . . . . . . . . . . . . . . . 450A, 450B
2546, 2547, 2548, 2549, 2570, 4329, VF-2508, VF-
1799.102 . . . . . . . . . . . . . . . . . . . 450A, 450B
2509, VF-2510, VF-2513
1799.102(b) . . . . . . . . . . . . . . . . . . . . . 450B
12940(a)(1) . . . . . . . . . . . 2501, 2540, 2543, 2544
1799.102(c) . . . . . . . . . . . . . . . . . . . . . 450B
12940(a) to (d) . . . . . . 2500, 2502, 2540, 2541, 2560
1799.104 . . . . . . . . . . . . . . . . . . . 450A, 450B
12940(h) . . . . . . . . . . . . . . . . . . . . 2505, 2620
1799.105 . . . . . . . . . . . . . . . . . . . . . . . . 425
12940(i) . 2521A, 2521B, 2521C, 2522A, 2522B, 2522C
1799.106 . . . . . . . . . . . . . . . . . . . . . . . . 425
12940(j)(1) . . . . 2520, 2521A, 2521B, 2521C, 2522A,
2522B, 2522C, 2523, 2525, 2528 1799.107 . . . . . . . . . . . . . . . . . . . . . . . . 425
12940(j)(3) . . . . . . . . . . . . 2522A, 2522B, 2522C 11550. . . . . . . . . . . . . . . . . . . . . . . . . .709
12940(j)(4)(A) . . 2520, 2521A, 2521B, 2521C, 2522A, 13007 . . . . . . . . . . . . . . . . . . . . . . . . . 2003
2522B, 2522C 17920.3 . . . . . . . . . . . . . . . . . . . . . . . . 4320
12940(j)(4)(C). .2521A, 2521B, 2521C, 2522A, 2522B, 17920.10 . . . . . . . . . . . . . . . . . . . . . . . 4320
2522C 17922 . . . . . . . . . . . . . . . . . . . . . . . . . 4308
12940(j)(5) . . . . 2520, 2521A, 2521B, 2521C, 2522A,
2522B, 2522C Insurance Code
12940(k) . . . . . . . . . . . . . . . . . . . . 2527, 2528 Sec. Inst.
12940(l). . . . . . . . . . . . . . . . . . . . . . . .2560
31 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2307
12940(l)(1) . . . . . . . . . . . . . . . . . . . . . . 2561
33 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2307
12940(m) . . . . . . . 2541, 2542, 2545, 2547, VF-2513
54 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2301
12940(n) . . . . . . . . . . . . . . . . . . . . 2541, 2546
55 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2301
12941 . . . . . . . . . . . . . . . . . . . . . . . . . 2570
85 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2303
12941.1 . . . . . . . . . . . . . . . . . . . . . . . . 2502
88 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2303
12945.1 . . . . . . . . . . . . . . . . . . . . . . . . 2600
330 . . . . . . . . . . . . . . . . . . . . . . . . . . 2308
12945.2 . . . . . . . . . . . . . . . . . . . . . . . . 2600
331 . . . . . . . . . . . . . . . . . . . . . . . . . . 2308
12945.2(a) . . . . . . . . . . . . . . . . . . . . . . 2601
332 . . . . . . . . . . . . . . . . . . . . . . . . . . 2308
12945.2(b)(3) . . . . . . . . . . . . . . . . . 2600, 2601
334 . . . . . . . . . . . . . . . . . . . . . . . . . . 2308
12945.2(b)(4)(C) . . . . . . . . . . . . . . . . . . . 2600
338. . . . . . . . . . . . . . . . . . . . . . .2308, 2309
12945.2(b)(5). . . . . . . . . . . . . . . . . . . . .2603
340 . . . . . . . . . . . . . . . . . . . . . . . . . . 2330
12945.2(b)(9) . . . . . . . . . . . . . . . . . 2610, 2611
341 to 343 . . . . . . . . . . . . . . . . . . . . . . 2331
12945.2(b)(12) . . . . . . . . . . . . . . . . . . . . 2600
359. . . . . . . . . . . . . . . . . . . . . . .2308, 2309
12945.2(g) . . . . . . . . . . . . . . . . . . . . . . 2602
360 . . . . . . . . . . . . . . . . . . . . . . . . . . 2337
12945.2(h) to (j) . . . . . . . . . . . . . . . . . . . 2602
361 . . . . . . . . . . . . . . . . . . . . . . . . . . 2337
12945.2(i) . . . . . . . . . . . . . . . . . . . 2610, 2611
365 . . . . . . . . . . . . . . . . . . . . . . . . . . 2337
12945.2(j). . . . . . . . . . . . . . . . . . . . . . .2610
381 . . . . . . . . . . . . . . . . . . . . . . . . . . 2351
12945.2(j)(4). . . . . . . . . . . . . . . . . .2610, 2611
382.5 . . . . . . . . . . . . . . . . . . . . . . . . . 2301
12945.2(k) . . . . . . . . . . . . . . . . . . . . . . 2620
382.5(a). . . . . . . . . . . . . . . . . . . . . . . .2301
12945.2(q) . . . . . . . . . . . . . . . . . . . . . . 2620
461 . . . . . . . . . . . . . . . . . . . . . . . . . . 2337
12955.3 . . . . . . . . . . . . . . . . . . . . 2548, 2549
481.1 . . . . . . . . . . . . . . . . . . . . . . . . . 2301
12960 . . . . . . . . . . . . . . . . . . . . . . . . . 2508
530 . . . . . . . . . . . . . . . . . . . . . . . . . . 2306
12960(e) . . . . . . . . . . . . . . . . . . . . . . . 2508
532 . . . . . . . . . . . . . . . . . . . . . . . . . . 2306
12965(d)(1) . . . . . . . . . . . . . . . . . . . . . . 457
TS-11
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Insurance Code—Cont. Labor Code—Cont.
Sec. Inst. Sec. Inst.
650 . . . . . . . . . . . . . . . . . . . . . . . . . . 2308 1053. . . . . . . . . . . . . . . . . . . . . . . . . .2711
790.03. . . . . . . . . . . . . . . . . . . . . . . . .2337 1054. . . . . . . . . . . . . . . . . . . . . . . . . .2711
790.03(h) . . . . . . . . . . . . . . . . . . . . . . . 2337 1102.5 . . . . . . . . . . . . . . . . . . . . . 4603, 4604
2071. . . . . . . . . . . . . . . . . . . . . . . . . .2308 1102.5(a) . . . . . . . . . . . . . . . . . . . . . . . 4603
10115 . . . . . . . . . . . . . . . . . . . . . . . . . 2302 1102.5(b). . . . . . . . . . . . . . . . . . . .2430, 4603
11580 . . . . . . . . . . . . . . . . . . . . . . . . . 2360 1102.5(c) . . . . . . . . . . . . . . . . . . . . . . . 4603
11580(b)(2) . . . . . . . . . . . . . . . . . . . . . .2360 1102.6. . . . . . . . . . . . . . . .4603, 4604, VF-4602
1171 . . . . . . . . . . . . . . . . . . . . . . 2701, 2702
Labor Code 1173 . . . . . . . . . . . . . . . . . . . . . . 2701, 2702
Sec. Inst. 1174(d) . . . . . . . . . . . . . . . . . . . . . . . . 2703
1182. . . . . . . . . . . . . . . . . . . . . . . . . .2702
18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2754
1193.6(a). . . . . . . . . . . . . . . . . . . .2701, 2702
132a. . . . . . . . . . . . . . . . . . . . . . . . . .2430
1194. . . . . . . . . . . . . . . . . . . . . . . . . .2701
200 . . . . . . . . . . . . . . . . 2700, 2701, 2702, 2704
1194(a) . . . . . . . . . . . . . . . . . 2701, 2702, 2703
201. . . . . . . . . . . . . . . . . . . . . . .2700, 2704
1194.2 . . . . . . . . . . . . . . . . . . . . . 2701, 2702
201(a). . . . . . . . . . . . . . . . . . . . . . . . .2704
1197.1. . . . . . . . . . . . . . . . . . . . . . . . .2701
202. . . . . . . . . . . . . . . . . . . . . . .2700, 2704
1197.1(a) . . . . . . . . . . . . . . . . . . . . . . . 2701
202(a). . . . . . . . . . . . . . . . . . . . . . . . .2704
1197.5(a) . . . . . . . . . . . . . . . . . . . . . . . 2740
203 . . . . . . . . . . . . . . . . . . . . . . . . . . 2704
1197.5(a)(1) . . . . . . . . . . . . . . . . . . 2740, 2741
206(a) . . . . . . . . . . . . . . 2700, 2701, 2702, 2704
1197.5(a)(1)(D). . . . . . . . . . . . . . . . . . . .2742
206.5 . . . . . . . . . . . . . . . . . . . . . . . . . 2700
1197.5(b) . . . . . . . . . . . . . . . . . . . . . . . 2740
218. . . . . . . . . . . . . . . . . . . . . . .2700, 2704
1197.5(b)(1) . . . . . . . . . . . . . . . . . . 2740, 2741
219(a). . . . . . . . . . . . . . . . . . . . . . . . .2700
1197.5(b)(1)(D). . . . . . . . . . . . . . . . . . . .2742
220 . . . . . . . . . . . . . . . . . . . . . . . . . . 2700
1197.5(h) . . . . . . . . . . . . . . . . . . . . . . . 2740
220(b). . . . . . . . . . . . . . . . . . . . . . . . .2704
1197.5(k) . . . . . . . . . . . . . . . . . . . . . . . 2743
221 . . . . . . . . . . . . . . . . . . . . . . . . . . 2700
1197.5(k)(1) . . . . . . . . . . . . . . . . . . . . . 2743
227.3. . . . . . . . . . . . . . . . . . . . . .2704, 2753
1197.5(k)(2) . . . . . . . . . . . . . . . . . . . . . 2743
350(a) . . . . . . . . . . . . . . . . . . . . . 2752, 2753
2750. . . . . . . . . . . . . . . . . . . . . . . . . .2400
350(b) . . . . . . . . . . . . . . . . . . . . . 2752, 2753
2750.5. . . . . . . . . . . . . . . . . . . . . . . . .3704
350(d). . . . . . . . . . . . . . . . . . . . . . . . .2752
2775 . . . . . . . . . . . . . . . . . . . . . . 2705, 3704
350(e). . . . . . . . . . . . . . . . . . . . . . . . .2752
2775(b)(1) . . . . . . . . . . . . . . . . . . . . . . 2705
351 . . . . . . . . . . . . . . . . . . . . . . . . . . 2752
2776 to 2784 . . . . . . . . . . . . . . . . . . . . . 2705
353 . . . . . . . . . . . . . . . . . . . . . . . . . . 2752
2802. . . . . . . . . . . . . . . . . . . . . . . . . .2750
510 . . . . . . . . . . . . . . . . . . . . . . . . . . 2702
2802(a) . . . . . . . . . . . . . . . . . . . . . . . . 2750
515. . . . . . . . . . . . . . . . . . . . . . .2720, 2721
2922 . . . . . . . . 2400, 2401, 2403, 2420, 2421, 2513
515(a) . . . . . . . . . . . . . . . . . . . . . 2720, 2721
2924 . . . . . . . . . . . . . . . . . . . . . . 2420, 2421
515(d). . . . . . . . . . . . . . . . . . . . . . . . .2702
3351 . . . . . . . . . . . . . . . . . . . . . . 2800, 2810
970 . . . . . . . . . . . . . . . . . . . . . . . . . . 2710
3352. . . . . . . . . . . . . . . . . . . . . . . . . .2800
971 . . . . . . . . . . . . . . . . . . . . . . . . . . 2710
3357 . . . . . . . . . . . . . . . . . . . . . . 2800, 2810
972 . . . . . . . . . . . . . . . . . . . . . . . . . . 2710
3600(a) . . . . . . . . . . . . . . . . . . . . . . . . 2800
1019. . . . . . . . . . . . . . . . . . . . . . . . . .2732
3600(a)(9) . . . . . . . . . . . . . . . . . . . . . . 3724
1019(a) . . . . . . . . . . . . . . . . . . . . . . . . 2732
3601. . . . . . . . . . . . . . . . . . .2810, 2811, 2812
1019(c) . . . . . . . . . . . . . . . . . . . . . . . . 2732
3601(a)(1). . . . . . . . . . . . . . . . . . . . . . .2811
1019(d)(1) . . . . . . . . . . . . . . . . . . . . . . 2732
3601(a)(2) . . . . . . . . . . . . . . . . . . . . . . 2812
1050. . . . . . . . . . . . . . . . . . . . . . . . . .2711
3602(a) . . . . . . . . . . . . . . . . . . . . . . . . 2800
1052. . . . . . . . . . . . . . . . . . . . . . . . . .2711
TS-12
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
AS TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Labor Code—Cont. Penal Code—Cont.
Sec. Inst. Sec. Inst.
3602(b)(1) . . . . . . . . . . . . . . . . . . . . . . 2801 632(a). . . . . . . . . . . . . . . . . . . . . . . . .1809
3602(b)(2) . . . . . . . . . . . . . . . . . . . . . . 2802 637.2. . . . . . . . . . . . . . . . . . . . . .1800, 1809
3602(b)(3) . . . . . . . . . . . . . . . . . . . . . . 2803 825(a). . . . . . . . . . . . . . . . . . . . . . . . .1407
3602(c) . . . . . . . . . . . . . . . . . . . . . . . . 2800 830 . . . . . . . . 440, 441, 1305A, 1305B, 1401, 1402
3706. . . . . . . . . . . . . . . . . . . . . . . . . .2800 834 . . . . . . . . . . . . . . . . 1401, 1403, 1405, 1407
4558. . . . . . . . . . . . . . . . . . . . . . . . . .2804 834a. . . . . . . . . . . . . . . . . . . . . . . . .1305A
4558(d) . . . . . . . . . . . . . . . . . . . . . . . . 3800 835a . . . . . . . . . . . 440, 441, 1305A, 1305B, 3020
6302(d) . . . . . . . . . . . . . . . . . . . . . . . . 4605 835a(a). . . . . . . . . . . . . . . . . .440, 441, 1305B
6304.5 . . . . . . . . . . . . . . . . . . . . . . . . . 418 835a(b). . . . . . . . . . . . . . . . . . . . . . . . .440
6310. . . . . . . . . . . . . . . . . . . . . . . . . .4605 835a(c) . . . . . . . . . . . . . . . . . . . . 441, 1305B
6310(a) . . . . . . . . . . . . . . . . . . . . . . . . 4605 835a(c)(2) . . . . . . . . . . . . . . . . . . . . . . . 441
6310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 4605 835a(d). . . . . . . . . . . . . . . . . .440, 441, 1305B
6310(b) . . . . . . . . . . . . . . . . . . . . . . . . 4605 835a(e). . . . . . . . . . . . . . . . . .440, 441, 1305B
6402. . . . . . . . . . . . . . . . . . . . . . . . . .4605 835a(e)(1) . . . . . . . . . . . . . . . . . . . 441, 1305B
836 . . . . . . . . . . . . . . . . . . . . . . . . . . 1402
Military and Veterans Code 836(a). . . . . . . . . . . . . . . . . . . . . . . . .1402
Sec. Inst. 837 . . . . . . . . . . . . . . . . . . . . . . . . . . 1404
1026. . . . . . . . . . . . . . . . . . . . . . . . . .4013
394 . . . . . . . . . . . . . . . . . . . . . . . . . . 2441
1127f . . . . . . . . . . . . . . . . . . . . . . . . . .224
394(a). . . . . . . . . . . . . . . . . . . . . . . . .2441
1370 . . . . . . . . . . . . . . . . . . . . . . 4002, 4013
394(b). . . . . . . . . . . . . . . . . . . . . . . . .2441
394(d). . . . . . . . . . . . . . . . . . . . . . . . .2441
Probate Code
Penal Code Sec. Inst.
Sec. Inst. 1007. . . . . . . . . . . . . . . . . . . . . . . . . .4000
17(a) . . . . . . . . . . . . . . . . . . . . . . 1402, 1404
Public Contract Code
236 . . . . . . . . . . . . . . . . . . . . . . . . . . 1400
Sec. Inst.
236.1 . . . . . . . . . . . . . . . . . . . . . . . . . 4328
422.6 . . . . . . . . . . . . . . . . . . . . . . . . . 3066 1104. . . . . . . . . . . . . . . . . . . . . . . . . .4500
490.5(f) . . . . . . . . . . . . . . . . . . . . . . . . 1409 7102. . . . . . . . . . . . . . . . . . . . . . . . . .4543
502. . . . . . . . . . . . . . . . . . . . . . .1812, 1814 10120 . . . . . . . . . . . . . . . . . . . . . . . . . 4500
502(2). . . . . . . . . . . . . . . . . . . . . . . . .1813 10226 . . . . . . . . . . . . . . . . . . . . . . . . . 4532
502(4). . . . . . . . . . . . . . . . . . . . . . . . .1813
502(7). . . . . . . . . . . . . . . . . . . . . . . . .1813 Unemployment Insurance Code
502(11). . . . . . . . . . . . . . . . . . . . .1812, 1813 Sec. Inst.
502(12) . . . . . . . . . . . . . . . . . . . . . . . . 1812
3302.2. . . . . . . . . . . . . . . . . . . . . . . . .2600
502(13) . . . . . . . . . . . . . . . . . . . . . . . . 1812
502(14) . . . . . . . . . . . . . . . . . . . . . . . . 1812 Vehicle Code
502(b). . . . . . . . . . . . . . . . . . . . . . . . .1812
Sec. Inst.
502(b)(1) . . . . . . . . . . . . . . . . . . . . . . . 1813
502(c). . . . . . . . . . . . . . . . . . . . . . . . .1812 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . 730
502(c)(1). . . . . . . . . . . . . . . . . . . .1812, 1813 312 . . . . . . . . . . . . . . . . . . . . . . . . . . . 709
502(c)(10) . . . . . . . . . . . . . . . . . . . . . . 1812 525 . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
502(e)(1). . . . . . . . . . . . . . . . . . . .1812, 1814 544 . . . . . . . . . . . . . . . . . . . . . . . . . . . 705
502(e)(4) . . . . . . . . . . . . . . . . . . . . . . . 1814 5602 . . . . . . . . . . . . . . . . . . . . . . . . . . 720
630 . . . . . . . . . . . . . . . . . . . . . . . . . . 4408 14606(a) . . . . . . . . . . . . . . . . . . . . . . . . 724
TS-13
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use
TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Vehicle Code—Cont. Welfare and Institutions Code—Cont.
Sec. Inst. Sec. Inst.
14607. . . . . . . . . . . . . . . . . . . . . . . . . .724 5008(h)(1)(B). . . . . . . . . . . . . . . . . . . . .4002
14608(a) . . . . . . . . . . . . . . . . . . . . . . . . 724 5008.2(a) . . . . . . . . . . . . . . . . . . . . . . . 4011
17004. . . . . . . . . . . . . . . . . . . . . . . . . .730 5150. . . . . . . . . . . . . . . . . . . . . . . . . .3021
17150. . . . . . . . . . . . . . . . . . . . . . .720, 721 5350(d) . . . . . . . . . . . . . . . . . . . . . . . . 4000
17151(a) . . . . . . . . . . . . . . . . . . . . . . . . 720 5350(e). . . . . . . . . . . . . . . . . . . . .4007, 4008
17707. . . . . . . . . . . . . . . . . . . . . . . . . .723 5350(e)(1) . . . . . . . . . . . . . . . . . . . . . . 4002
17708. . . . . . . . . . . . . . . . . . . . . . . . . .722 5352.5. . . . . . . . . . . . . . . . . . . . . . . . .4013
17710. . . . . . . . . . . . . . . . . . . . . . . . . .723 15610.06 . . . . . . . . . . . . . . . . . . . . . . . 3109
17711. . . . . . . . . . . . . . . . . . . . . . . . . .723 15610.07 . . . . . . . . . 3100, 3103, 3106, 3109, 4328
21055. . . . . . . . . . . . . . . . . . . . . . . . . .730 15610.23 . . . . . . . . . 3100, 3103, 3106, 3109, 3112
21055(a) . . . . . . . . . . . . . . . . . . . . . . . . 731 15610.25 . . . . . . . . . . . . . . . . . . . . . . . 3112
21056. . . . . . . . . . . . . . . . . . . . . . . . . .730 15610.27 . . . . . . . . . . . . . 3100, 3103, 3106, 3109
21800. . . . . . . . . . . . . . . . . . . . . . . . . .701 15610.30 . . . . . . . . . . . . . . . . . . . . . . . 3100
21801. . . . . . . . . . . . . . . . . . . . . . . . . .701 15610.30(a)(3) . . . . . . . . . . . . . . . . . . . . 3117
21801(a) . . . . . . . . . . . . . . . . . . . . . . . . 704 15610.30(b). . . . . . . . . . . . . . . . . . . . . .3100
21802. . . . . . . . . . . . . . . . . . . . . . .701, 703 15610.30(c). . . . . . . . . . . . . . . . . . . . . .3100
21803. . . . . . . . . . . . . . . . . . . . . . . . . .701 15610.57 . . . . . . . . . . . . . . . . . . . . . . . 3103
21804. . . . . . . . . . . . . . . . . . . . . . . . . .701 15610.63 . . . . . . . . . . . . . . . . . . . . . . . 3106
21805. . . . . . . . . . . . . . . . . . . . . . . . . .701 15610.70 . . . . . . . . . . . . . . . . . . . . . . . 3117
21806. . . . . . . . . . . . . . . . . . . . . . . . . .701 15657 . . . 3102A, 3102B, 3103, 3104, 3106, 3107, VF-
21950. . . . . . . . . . . . . . . . . . . . . . . . . .710 3102, VF-3103, VF-3104, VF-3105
21951. . . . . . . . . . . . . . . . . . . . . . . . . .710 15657(c) . . . . . . . 3102A, 3102B, VF-3102, VF-3104
22107. . . . . . . . . . . . . . . . . . . . . . . . . .705 15657.05 . . . . . 3102A, 3102B, 3109, 3110, VF-3106
22349(a) . . . . . . . . . . . . . . . . . . . . . . . . 708 15657.05(b) . . . . . . . . . . . . . . . . . . . VF-3107
22349(b) . . . . . . . . . . . . . . . . . . . . . . . . 708 15657.05(c). . . . . . . . . . . . . . . . . . . .VF-3106
22350. . . . . . . . . . . . . . . . . . . . . . . . . .706 15657.2 . . . . . . . . . . . . . . . . . . . . . . . . 3103
22352. . . . . . . . . . . . . . . . . . . . . . .707, 806 15657.5 . . . . . . . . . . . . . . . . . . . . . . . . 3101
22352(a)(1) . . . . . . . . . . . . . . . . . . . . . . 806 15657.5(a) . . . . . . . . . . . . . . . . . . . . VF-3100
22356. . . . . . . . . . . . . . . . . . . . . . . . . .708 15657.5(b). . . . . . . . . . . . . . .VF-3100, VF-3101
22400(a) . . . . . . . . . . . . . . . . . . . . . . . . 708 15657.5(c) . . . . . . 3102A, 3102B, VF-3100, VF-3101
22451. . . . . . . . . . . . . . . . . . . . . . . . . .806 15677.05 . . . . . . . . . . . . . . . . . . . . . . 3102B
23109 . . . . . . . . . . . . . . . . . . . . . . . . . 3610
23152. . . . . . . . . . . . . . . . . . . . . . . . . .709 CALIFORNIA CODE OF
23152(a) . . . . . . . . . . . . . . . . . . . . . . . . 709 REGULATIONS
23153. . . . . . . . . . . . . . . . . . . . . . . . . .709
23153(a) . . . . . . . . . . . . . . . . . . . . . . . . 709 California Code of Regulations
27315. . . . . . . . . . . . . . . . . . . . . . . . . .712 Title:Section Inst.
27315(d)(1) . . . . . . . . . . . . . . . . . . . . . . 712
2:7286.7(a) . . . . . . . . . . . . . . . . . . . . . . 2501
27315(i) . . . . . . . . . . . . . . . . . . . . . . . . 712
2:11009(c) . . . . . . . . . . . . . . . . . . . . . . 2507
40831. . . . . . . . . . . . . . . . . . . . . . . . . .707
2:11010(b) . . . . . . . . . . . . . . . 2502, 2503, 2504
2:11017(a) . . . . . . . . . . . . . . . . . . . 2502, 2503
Welfare and Institutions Code
2:11017(e) . . . . . . . . . . . . . . . . . . . 2502, 2503
Sec. Inst. 2:11019(b)(2). . . . . . . . . . . . . . . . . . . . .2523
5008(h) . . . . . . . . . . . . . . . . . 4000, 4002, 4013 2:11019(b)(4). . . . . . . . . . . . . . . . . . . . .2527
5008(h)(1)(A). . . . . . . . . . . . . . . . . . . . .4002 2:11021 . . . . . . . . . . . . . . . . . . . . . . . . 2505
TS-14
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AS TABLE OF STATUTES
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
California Code of Regulations—Cont. California Rules of Court—Cont.
Title:Section Inst. Rule Inst.
2:11030(a) . . . . . . . . . . . . . . . . . . . . . . . 118 2.1040. . . . . . . . . . . . . . . . . . . . . . . . .5018
2:11034(f)(1) . . . . . . . . . . . . . . . . . . . . . 2520
2:11060(b) . . . . . . . . . . . . . . . . . . . . . . 2560 FEDERAL STATUTES, RULES, AND
2:11062 . . . . . . . . . . . . . . . . . . . . . . . . 2560 REGULATIONS
2:11065(e)(2) . . . . . . . . . . . . . . . . . . . . . 2543
2:11065(e)(3) . . . . . . . . . . . . . . . . . . . . . 2543 United States Constitution
2:11067 . . . . . . . . . . . . . . . . . . . . . . . . 2544 Amend. Inst.
2:11067(c) to (e) . . . . . . . . . . . . . . . . . . . 2544
amend.:1 . . 1700, 1702, 1704, 1720, 1731, 1803, 1805,
2:11067(d) . . . . . . . . . . . . . . . . . . . . . . 2544
1806, 3005, 3050, 3053, 3064, 3430, 4321
2:11067(e) . . . . . . . . . . . . . . . . . . . . . . 2544
amend.:1:to:10 . . . . . . . . . . . . . . . . . . . . 4910
2:11068(a) . . . . . . . . . . . . . . . . . . . . . . 2542
amend.:4 . . . 440, 1408, 3000, 3001, 3020, 3021, 3022,
2:11087(g) . . . . . . . . . . . . . . . . . . . . . . 2603 3023, 3024, 3025, 3027, 3051, 3052
2:11088(b) . . . . . . . . . . . . . . . . . . . 2610, 2611 amend.:5 . . . . . 216, 3005, 3500, 3507, 3509B, 3511B
2:11089(c)(1) . . . . . . . . . . . . . . . . . . . . . 2612 amend.:8 . . 3000, 3001, 3005, 3020, 3040, 3041, 3042,
2:11091 . . . . . . . . . . . . . . . . . . . . . . . . 2602 3043, 3046, VF-3020, VF-3021, VF-3023
2:11091(a)(1) . . . . . . . . . . . . . . . . . . . . . 2602 amend.:11. . . . . . . . . . . . . . . . . . . . . . .3041
2:11091(a)(2) . . . . . . . . . . . . . . . . . . . . . 2600 amend.:14. .3005, 3020, 3021, 3022, 3023, 3040, 3041,
2:11091(a)(2) to (4) . . . . . . . . . . . . . . . . . 2602 3042, 3043, 3046, 3051, 3052, 3500, 3507
2:11091(b)(3). . . . . . . . . . . . . . . . . . . . .2602
2:12176(a) . . . . . . . . . . . . . . . . . . . . . . 4329 United States Code
2:12176(c) . . . . . . . . . . . . . . . . . . . . . . 4329 Title:Sec. Inst.
2:12176(c)(1) . . . . . . . . . . . . . . . . . . . . .4329
8:1324a . . . . . . . . . . . . . . . . . . . . . . . . 2732
2:12176(c)(2) . . . . . . . . . . . . . . . . . . . . .4329
15:13. . . . . . . . . . . . . . . . . . . . . .3300, 3302
2:12176(c)(8) . . . . . . . . . . . . . . . . . . . . .4329
15:13(a). . . . . . . . . . . . . . . . . . . . . . . .3301
2:12176(c)(8)(A) . . . . . . . . . . . . . . . . . . . 4329
15:2301. . . . . . . . . . . . . . . . . . . . . . . .1230
2:12179. . . . . . . . . . . . . . . . . . . . . . . .4330
15:2301(6) . . . . . . . . . . . . . . . . . . . . . . 1230
8:11000 . . . . . . . . . . . . . . . . . . . . . . . . 2701
15:2308. . . . . . . . . . . . . . . . . . . . . . . .3221
8:11000(2) . . . . . . . . . . . . . . . . . . . . . . 2702
15:2310(d)(1). . . . . . . . . . . . . . . . . . . . .1230
8:11000(3) . . . . . . . . . . . . . . . . . . . . . . 2701
31:3729. . . . . . . . . . . . . . . . . . . . . . . .4600
8:11010. . . . . . . . . . . . . .2700, 2701, 2702, 2754
35:284. . . . . . . . . . . . . . . . . . . . . . . . .4411
8:11010(5) . . . . . . . . . . . . . . . . . . . . . . 2754
42:1983 . . . 440, 3000, 3001, 3003, 3005, 3020, 3021,
8:11010(8) . . . . . . . . . . . . . . . . . . . . . . 2700 3040, 3041, 3042, 3043, 3046, 3710
8:11020 . . . . . . . . . . . . . . . . . . . . . . . . 2754 42:2000e-2(K)(1)(A)(ii) . . . . . . . . . . . . . . . 2504
8:11040 . . . . . . . . . . . . . . . . . . . . 2720, 2721 42:2000e-2(e)(1) . . . . . . . . . . . . . . . . . . . 2501
8:11090 . . . . . . . . . . . . . . . . . . . . 2720, 2721 42:2000e-2(k)(1)(A). . . . . . . . . . . . . .2502, 2504
42:2000e-2(k)(2) . . . . . . . . . . . . . . . . . . . 2503
CALIFORNIA RULES OF COURT
42:2000e-2(m) . . . . . . . . . . . . . . . . . . . . 2507
45:51 . . . . . . . . . . . 2900, 2903, 2920, 2941, 2942
California Rules of Court
45:53. . . . . . . . . . . . . . . . . . . . . .2904, 2920
Rule Inst. 45:54 . . . . . . . . . . . . . . . . . . . . . . . . . 2920
2.1031. . . . . . . . . . . . . . . . . . . . . .102, 5010 45:54a. . . . . . . . . . . . . . . . . . . . . . . . .2920
2.1033. . . . . . . . . . . . . . . . . . . . . .112, 5019 45:55. . . . . . . . . . . . . . . . . . . . . .2941, 2942
2.1035 . . . . . . . . . . . . . . . . . . . . . . . . . 101 45:56 . . . . . . . . . . . . . . . . . . . . . . . . . 2922
2.1036. . . . . . . . . . . . . . . . . . . . . . . . .5013 45:57 . . . . . . . . . . . . . . . . . . . . . . . . . 2925
TS-15
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TABLE OF STATUTES AS
[References are to the Judicial Council of California Criminal Jury Instructions (CALCRIM), e.g., 1900]
Code of Federal Regulations
United States Code—Cont. Title:Sec. Inst.
Title:Sec. Inst. 17:240.10b-5 . . . . . . . . . . . . . . . . . . . . . 1901
45:59 . . . . . . . . . . . . . . . . . . . . . . . . . 2942 24:982.310 . . . . . . . . . . . . . . . . . . . . . . 4306
49:20301. . . . . . . . . . . . . . . . . . . .2901, 2920 26:20.2031-1(b). . . . . . . . . . . . . . .3903J, 3903K
49:20302(a). . . . . . . . . . . . . . . . . . . . . .2920 29:1630. . . . . . . . . . . . . . . . . . . . . . . .2546
49:20501 . . . . . . . . . . . . . . . . . . . . . . . 2920
49:20502(b). . . . . . . . . . . . . . . . . . . . . .2920
49:20701. . . . . . . . . . . . . . . . . . . .2901, 2920
TS-16
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INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
ADULTS, PROTECTION OF DEPENDENT (See
A ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT)
ABANDONMENT
ADVERSE EMPLOYMENT ACTION
Building contracts (See CONSTRUCTION CON-
Fair Employment and Housing Act (See FAIR EM-
TRACTS)
PLOYMENT AND HOUSING ACT)
Medical patient abandoned with insufficient notice
Military status, discrimination prohibited based on
. . . 509
. . . 2441
ABDUCTION (See ELDER ABUSE AND DEPEN- Whistleblower protection (See WHISTLEBLOWER
DENT ADULT CIVIL PROTECTION ACT) PROTECTION)
ABORTION ADVERSE POSSESSION
Wrongful birth, medical negligence claim for . . . 511 Generally . . . 4900
ABUSE OF ELDER OR DEPENDENT ADULT (See AFFIRMATIVE DEFENSES (See DEFENSES)
ELDER ABUSE AND DEPENDENT ADULT CIVIL
AFTER-ACQUIRED-EVIDENCE DOCTRINE
PROTECTION ACT)
Wrongful discharge, defense to employee’s claim of
ABUSE OF PROCESS . . . 2506
Essential factual elements . . . 1520
AGE
Verdict form . . . VF-1504
Abuse of elderly persons (See ELDER ABUSE AND
ABUSIVE WORK ENVIRONMENT (See FAIR EM- DEPENDENT ADULT CIVIL PROTECTION ACT)
PLOYMENT AND HOUSING ACT, subhead: Work Civil rights violation by violent acts or threats
environment harassment) Essential factual elements
Actual acts of violence . . . 3063
ACCEPTANCE Threats of violence . . . 3064
Common carrier’s acceptance of passenger . . . 907 Verdict form . . . VF-3033
Formation of contracts (See CONTRACTS, subhead: Employment discrimination, essential factual elements
Formation of contracts) for establishing claim of . . . 2570
ACCESSIBILITY OF JOB FACILITIES (See FAIR Minors (See MINORS)
EMPLOYMENT AND HOUSING ACT, subhead: Violent acts or threats of violence based on age (See
Reasonable accommodation) subhead: Civil rights violation by violent acts or
threats)
ACCOMMODATION, REASONABLE (See FAIR
EMPLOYMENT AND HOUSING ACT, subhead: AGENCY
Reasonable accommodation) Cartwright Act, unlawful agreement between agent and
company under . . . 3407
ACTUAL DAMAGES (See COMPENSATORY DAM- Conspiracy defense based on agent/employee immunity
AGES) rule . . . 3602
Definition of agent . . . 3705
ACTUAL DISABILITY (See FAIR EMPLOYMENT
Elder abuse and dependent adult protection cases (See
AND HOUSING ACT, subhead: Disability discrimi-
ELDER ABUSE AND DEPENDENT ADULT CIVIL
nation)
PROTECTION ACT, subhead: Employer defendants)
ADMINISTRATIVE EXEMPTION Fiduciary duty (See FIDUCIARIES)
Overtime compensation, affirmative defense to nonpay- Insurance agent (See INSURANCE)
ment of . . . 2721 Managing agent defined . . . 3102A; 3102B
Ostensible agents
ADMINISTRATIVE PROCEEDINGS, WRONGFUL Intentionally implying actual agency of . . . 3709
USE OF (See MALICIOUS PROSECUTION) Physician-hospital relationship . . . 3714
Vicarious responsibility for agent’s wrongful conduct
ADMISSIONS
(See VICARIOUS LIABILITY)
Adoptive admissions . . . 213
Requests for admissions . . . 210 AGREEMENTS (See CONTRACTS)
AGRICULTURE (See CROPS)
AIDING AND ABETTING
Essential factual elements . . . 3610
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AIDS INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
AIDS (See EMOTIONAL DISTRESS, subhead: Fear of ASSAULT AND BATTERY—Cont.
cancer, HIV, or AIDS, conduct causing) Intent—Cont.
Law enforcement officer, battery by
ALCOHOL (See INTOXICATION)
Deadly force . . . 1305B; VF-1303B
ALTERNATE JURORS Nondeadly force . . . 1305A; VF-1303A
Concluding instructions . . . 5015 Transferred intent . . . 1321
Introductory instructions . . . 111 Invalid consent . . . 1303
Substitution of . . . 5014 Law enforcement officer, battery by
Deadly force
ANCESTRY, DISCRIMINATION BASED ON (See
Generally . . . 1305B
CIVIL RIGHTS, subhead: State law; DISCRIMINA-
Verdict form . . . VF-1303B
TION)
Nondeadly force
ANIMALS, INJURY CAUSED BY (See NEGLI- Generally . . . 1305A
GENCE, subhead: Strict liability) Verdict form . . . VF-1303A
Medical battery
ANTICIPATORY BREACH (See PERFORMANCE
Absence of or informed consent to medical proce-
AND BREACH)
dure . . . 530A
ANTITRUST (See CARTWRIGHT ACT) Conditions of consent ignored . . . 530B
Offensive touching defined . . . 1300
APPLICATIONS Ralph Act (See CIVIL RIGHTS, subhead: Violent acts
Driver’s license application of minor, liability of co- or threats of violence)
signer of
Self-defense/defense of others, defense of
Generally . . . 723
Elements of . . . 1304
Verdict form . . . VF-703
Verdict form . . . VF-1301
Insurance policy (See INSURANCE)
Sexual battery, essential factual elements of . . . 1306
APPORTIONMENT (See PERCENTAGE OF RE- Verdict forms
SPONSIBILITY) Assault . . . VF-1302
Battery
APPROPRIATION OR USE OF NAME OR LIKE-
General form . . . VF-1300
NESS (See INVASION OF PRIVACY)
Law enforcement officer, by . . . VF-1303A; VF-
ARREST 1303B
Civil rights (See CIVIL RIGHTS) Self-defense or defense of others at issue
False arrest (See FALSE IMPRISONMENT) . . . VF-1301
Workers’ Compensation claims (See WORKERS’
ASBESTOS DISEASE COMPENSATION, subhead: Willful physical assault)
Causation for asbestos-related cancer claims . . . 435
ASSIGNMENT
ASSAULT AND BATTERY Contracts (See CONTRACTS)
Absence of consent as element of . . . 1300; 1301 Employees, FELA cases involving negligent assignment
Affirmative defense (See subhead: Defense of self- of . . . 2902
defense/defense of others)
Common carrier’s duty to protect passengers from as- ASSUMPTION OF RISK
sault . . . 908 Consumer goods sold on “as-is” or “with-all-faults”
Consent basis as defense to breach of warranty . . . 3221
Absence of . . . 1300; 1301 Co-participant in sports activity, reckless or intentional
Explained . . . 1302 injury to . . . 470; VF-403
Invalid consent . . . 1303 Event sponsors’ duty not to unreasonably increase risks
Defense of self-defense/defense of others of injury to participants and spectators . . . 472; VF-
Elements of . . . 1304 405
Verdict form . . . VF-1301 Express assumption of risk as defense against negli-
Essential factual elements gence . . . 451
Aiding and abetting . . . 3610 Facilities owners’ duty not to unreasonably increase
Assault . . . 1301 risks of injury to participants and spectators
Battery . . . 472; VF-405
Generally . . . 1300 FELA cases, assumption of risk as issue in . . . 2905
Sexual battery . . . 1306 Firefighter’s rule, exceptions to nonliability under
Intent . . . 473
Consent, silence or inaction intended to indicate Inherent risk, persons with occupations involving
. . . 1302 . . . 473
Essential factual element, intent as . . . 1300; 1301 Primary assumption of risk bars recovery absent reck-
General form of instruction . . . 1320 less or intentional conduct . . . 470
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INDEX BREACH
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
ASSUMPTION OF RISK—Cont. AUDIO OR VIDEOTAPE RECORDINGS
Sports trainer’s liability for reckless or intentional con- Evidence, recording and transcription as . . . 5018
duct or for failure to use reasonable care . . . 471;
AUTHORIZATION, SCOPE OF (See SCOPE OF
VF-404
EMPLOYMENT OR SCOPE OF AUTHORIZA-
ATHLETICS (See RECREATIONAL AND SPORT- TION)
ING ACTIVITIES)
AUTOMOBILES (See MOTOR VEHICLES AND
ATTORNEY-IN-FACT (See ELDER ABUSE AND HIGHWAY SAFETY)
DEPENDENT ADULT CIVIL PROTECTION ACT,
AVOIDABLE CONSEQUENCES DOCTRINE
subhead: Financial abuse)
Affirmative defense to work environment sexual harass-
ATTORNEYS ment claim based on avoidable consequences not
Damages for negligent handling of legal matter taken by plaintiff . . . 2526
. . . 601
Fiduciary duty, essential factual elements of breach of B
. . . 4106
Insurance (See INSURANCE) BAD FAITH (See GOOD FAITH AND BAD FAITH)
Malicious prosecution, reliance on counsel as affirma-
BANE ACT (See CIVIL RIGHTS)
tive defense to . . . 1510; VF-1502
Malpractice BATTERY (See ASSAULT AND BATTERY)
Affirmative defense of statute of limitations
Four-year limit for filing lawsuit . . . 611 BELOW-COST SALES (See UNFAIR PRACTICES
One-year limit for filing lawsuit . . . 610 ACT)
Alternative legal decisions or strategies, attorney’s
BIA (BOILER INSPECTION ACT) (See FEDERAL
choice of . . . 603
EMPLOYERS’ LIABILITY ACT (FELA), subhead:
Criminal conviction with actual innocence . . . 606
Boiler Inspection Act violations)
Damages for negligent handling of legal matter
. . . 601 BIAS
Fiduciary duty, essential factual elements of breach Juror bias for or against any party or witness, caution
of . . . 4106 against . . . 107; 113; 5003
Specialists (See subhead: Specialists)
Standard of care . . . 600 BIRTH (See WRONGFUL BIRTH)
Success not required . . . 602
Wrongful conviction . . . 606 BLACKLIST (See CIVIL RIGHTS, subhead: Unruh
Negligence (See subhead: Malpractice) Civil Rights Act)
Referral to legal specialist . . . 604
BOILER INSPECTION ACT (BIA) (See FEDERAL
Specialists
EMPLOYERS’ LIABILITY ACT (FELA), subhead:
Referral to legal specialist . . . 604
Boiler Inspection Act violations)
Standard of care for . . . 600
Standard of care . . . 600 BONA FIDE OCCUPATIONAL QUALIFICATION
Statements of attorney distinguished from testimony (BFOQ) DEFENSE (See FAIR EMPLOYMENT
. . . 106; 5002 AND HOUSING ACT)
Statute of limitations, affirmative defense of
Four-year limit for filing malpractice lawsuit BONUS
. . . 611 Eminent domain taking, determination of bonus value of
One-year limit for filing malpractice lawsuit leasehold interest subject to . . . 3508
. . . 610
Stipulations . . . 106; 5002 BORROWED SERVANT
FELA claims . . . 2923
ATTORNEYS’ FEES
Cartwright Act violation . . . 3440 BOYCOTTS
Damage awards by jurors, consideration of attorneys’ Cartwright Act violations (See CARTWRIGHT ACT,
fees and court costs in . . . 3964 subhead: Horizontal restraints)
Elder abuse and dependent adult protection actions (See Equal rights to conduct business, denial of (See CIVIL
ELDER ABUSE AND DEPENDENT ADULT CIVIL RIGHTS, subhead: Unruh Civil Rights Act)
PROTECTION ACT, subhead: Enhanced remedies
sought) BREACH OF CONTRACT
Insurance, actions involving (See INSURANCE, sub- Generally (See PERFORMANCE AND BREACH)
head: Attorneys’ fees) Damages, recovery of (See BREACH OF CONTRACT,
Malicious prosecution, apportionment of fees and costs DAMAGES FOR)
incurred in defending . . . 1530
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BREACH INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
BREACH OF CONTRACT, DAMAGES FOR BREACH OF CONTRACT, DAMAGES FOR—
Building contracts (See CONSTRUCTION CON- Cont.
TRACTS) Verdict forms
Certainty as to existence or amount of damages Contract formation at issue . . . VF-303
. . . 352; 353; 359 General form . . . VF-300
Costs (See subhead: Expenses)
Employment contracts (See EMPLOYMENT CON- BREACH OF FIDUCIARY DUTY (See FIDUCIA-
TRACTS, subhead: Damages) RIES)
Essential factual element of breach, damages to plaintiff
BREACH OF WARRANTY (See WARRANTIES)
as . . . 303
Expenses BROKERS (See REAL ESTATE SALES—BROKERS)
Construction of improvements on real property, costs
resulting from breach of contract for . . . 354 BUILDING CONTRACTORS (See CONSTRUC-
Mitigation of damages, reasonable expenditure for TION CONTRACTS)
purpose of . . . 358 BURDEN OF PROOF
Purchase of real property, expenses resulting from Clear and convincing evidence
breach of contract for . . . 357 Elder abuse and dependent adult protection claims
Sell real property, expenses resulting from breach of for damages (See ELDER ABUSE AND DEPEN-
contract to . . . 356 DENT ADULT CIVIL PROTECTION ACT, sub-
Fair market value head: Enhanced remedies sought)
Construct improvements on real property, damages General instruction defining . . . 201
for breach of contract to . . . 354 Continuing-violation doctrine . . . 2508
Sale of real estate (See REAL ESTATE SALES) Disability discrimination (See FAIR EMPLOYMENT
Formation of contract at issue . . . VF-303 AND HOUSING ACT)
Future damages Gravely disabled, obligation of proving beyond reason-
Certainty as to existence or amount of damages able that respondent in conservatorship proceeding is
. . . 352 . . . 4005
Lost profit claims . . . 352 More likely true than not true, obligation to prove fact
Present cash value of . . . 359 . . . 200
Reduced to present cash value . . . 359 Products liability design defect case . . . 1204
Introduction to contract damages . . . 350 Res ipsa loquitur
Introductory instructions . . . 300 General instruction . . . 417
Loss of profits Medical negligence . . . 518
No profits earned . . . 352 Unlawful detainer (See UNLAWFUL DETAINER)
Some profits earned . . . 353
BUSES (See COMMON CARRIERS)
Measure of damages
Certainty as to amount of damages . . . 352; 353 BUSINESS ESTABLISHMENTS
Construct improvements on real property, breach of Civil rights violations (See CIVIL RIGHTS, subhead:
contract to . . . 354 State law)
Lost profits, calculation of amount of damages for Corporations (See CORPORATIONS)
. . . 352; 353 False imprisonment action, common-law right of busi-
Proving amount of damages . . . 350 ness proprietor to detain for investigation as privilege
Mitigation of damages against . . . 1409
Employment contracts . . . 3963 Goodwill after taking of property, recovery for loss of
Reasonable expenditure for purpose of . . . 358 . . . 3513
Money only, obligation to pay . . . 355 Partnerships (See PARTNERSHIPS)
Nominal damages, general instruction for . . . 360 Premises liability (See PREMISES LIABILITY)
No profits earned . . . 352 Public accommodations, discrimination in access to
Present cash value, damages for future harm reduced to . . . 3060; VF-3030
. . . 359 Trade libel, essential factual elements to establish claim
Profits, loss of (See subhead: Loss of profits) of . . . 1731; VF-1721
Proving existence or amount of damages . . . 350
Real estate sales (See REAL ESTATE SALES) BUSINESS NECESSITY/JOB RELATEDNESS DE-
Reliance damages . . . 361 FENSE (See FAIR EMPLOYMENT AND HOUS-
Some profits earned . . . 353 ING ACT, subhead: Disparate impact discrimination)
Special damages . . . 351
Third party beneficiary . . . 301 C
Value
Fair market value (See subhead: Fair market value) CALIFORNIA FAIR EMPLOYMENT AND HOUS-
Present cash value, damages for future harm reduced ING ACT (See FAIR EMPLOYMENT AND HOUS-
to . . . 359 ING ACT)
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INDEX CARTWR
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CALIFORNIA FAMILY RIGHTS ACT (See FAM- CARTWRIGHT ACT—Cont.
ILY RIGHTS ACT) Horizontal restraints—Cont.
Definition of agreement . . . 3406
CANCER
Direct competitors
Asbestos-related cancer claims, causation for . . . 435
Allocation of trade or commerce . . . 3401
Emotional distress (See EMOTIONAL DISTRESS, sub-
General instruction on price fixing . . . 3400
head: Fear of cancer, HIV, or AIDS, conduct causing)
Per se violation . . . 3403
CARRIERS (See COMMON CARRIERS; INTER- Rule of reason claims . . . 3405
STATE COMMERCE) Dual distributor restraints
Essential factual elements for establishing claim
CARTELS (See CARTWRIGHT ACT, subhead: Hori- . . . 3402
zontal restraints) Verdict form . . . VF-3403
CARTWRIGHT ACT Group boycott
Affirmative defenses (See subhead: Defenses) Per se instruction . . . 3403; VF-3404
Agent and company, agreement between . . . 3407 Rule of reason instruction . . . 3404; VF-3405
Boycott, group (See subhead: Horizontal restraints) In pari delicto (See subhead: In pari delicto as affir-
Cartels (See subhead: Horizontal restraints) mative defense)
Coercion (See subhead: Vertical restraints) Price fixing (See subhead: Price fixing)
Collaboration among competitors (See subhead: Hori- Rule of reason claims (See subhead: Rule of reason)
zontal restraints) Verdict forms
Damages for violation of act . . . 3440 Allocation of trade or commerce . . . VF-3401;
Defenses VF-3402
In pari delicto (See subhead: In pari delicto as affir- Dual distributor restraints . . . VF-3403
mative defense) Group boycott . . . VF-3404; VF-3405
Noerr-Pennington doctrine (See subhead: Noerr- Price fixing . . . VF-3400
Pennington doctrine) In pari delicto as affirmative defense
Definitions General instruction . . . 3431
Agreement . . . 3406 Verdict form . . . VF-3402
Coercion . . . 3408 Market power defined . . . 3412
Price fixing . . . 3400 Noerr-Pennington doctrine
Rule of reason (See subhead: Rule of reason) General instruction . . . 3430
Tying arrangement (See subhead: Tying arrangement) Verdict form . . . VF-3407
Vertical restraints (See subhead: Vertical restraints) Officer and company, agreement between . . . 3407
Direct competitors (See subhead: Horizontal restraints) Per se violations (See subhead: Horizontal restraints)
Division of market or allocation of trade or commerce Price fixing
(See subhead: Horizontal restraints) Essential factual elements for establishing claim
Dual distributor restraints (See subhead: Horizontal re- . . . 3400
straints) Verdict form . . . VF-3400
Economic power defined . . . 3423 Product market defined . . . 3413
Essential factual elements Rule of reason
Horizontal restraints Anticompetitive versus beneficial benefits . . . 3411
Allocation of trade or commerce . . . 3401 Geographic market defined . . . 3414
Dual distributor restraints . . . 3402 Group boycott as horizontal restraint . . . 3404; VF-
General instruction on price fixing . . . 3400 3405
Group boycott . . . 3403; 3404 Market power defined . . . 3412
Other unreasonable restraint of trade . . . 3405 Noerr-Pennington doctrine (See subhead: Noerr-
Tying arrangement . . . 3420; 3421 Pennington doctrine)
Vertical restraints Product market defined . . . 3413
General instruction on price fixing . . . 3400 Unreasonable restraint of trade . . . 3405; VF-3406;
Other unreasonable restraint of trade . . . 3405 VF-3407
Geographic market defined . . . 3414 Verdict forms
Group boycott (See subhead: Horizontal restraints) Group boycott as horizontal restraint . . . VF-
Horizontal restraints 3405
Allocation of trade or commerce Unreasonable restraint of trade . . . VF-3406;
Essential factual elements for establishing claim VF-3407
. . . 3401 Termination of reseller as vertical restraint . . . 3409
In pari delicto (See subhead: In pari delicto as Tying arrangement
affirmative defense) Definitions
Verdict forms . . . VF-3401; VF-3402 Economic power . . . 3423
Company and employee, agreement between Separate products . . . 3422
. . . 3407 Tying arrangement . . . 3420; 3421
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CARTWR INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CARTWRIGHT ACT—Cont. CERTIFICATION (See FAMILY RIGHTS ACT, sub-
Tying arrangement—Cont. head: Defenses)
Essential factual elements for establishing claim
CFEHA (See FAIR EMPLOYMENT AND HOUSING
. . . 3420; 3421
ACT)
Products or services . . . 3421; VF-3409
Real estate, products or services . . . 3420; VF-3408 CFRA LEAVE (See FAMILY RIGHTS ACT)
Verdict forms
Products or services . . . VF-3409 CHATTELS, TRESPASS TO (See TRESPASS TO
Real estate, products or services . . . VF-3408 CHATTELS)
Verdict forms CHILDREN (See MINORS)
Dual distributor restraints . . . VF-3403
Horizontal restraints (See subhead: Horizontal re- CIRCUMSTANTIAL EVIDENCE
straints) General instruction defining . . . 202
In pari delicto as affirmative defense . . . VF-3402
CIVIL PENALTIES (See PENALTIES)
Noerr-Pennington doctrine . . . VF-3407
Price fixing . . . VF-3400 CIVIL PROCEEDINGS, WRONGFUL USE OF (See
Rule of reason (See subhead: Rule of reason) MALICIOUS PROSECUTION)
Tying arrangement (See subhead: Tying arrangement)
Vertical restraints CIVIL RIGHTS
Company and its employee, agreement between Accommodations and other services, denial of
. . . 3407 . . . 3060; VF-3030
Definitions Affirmative defenses (See subhead: Search and search
Agreement . . . 3406 warrant)
Coercion . . . 3408 Age
Direct competitors . . . 3400; 3405 Employment discrimination, essential factual ele-
Essential factual elements ments for establishing claim of . . . 2570
General instruction on price fixing . . . 3400 Violence and threats (See subhead: Ralph Act, claims
Other unreasonable restraint of trade . . . 3405 based on violence under)
Other unreasonable restraint of trade . . . 3405 Ancestry, discrimination based on (See subhead: State
Price fixing (See subhead: Price fixing) law)
Rule of reason (See subhead: Rule of reason) Arrest
Seller and reseller’s competitor, agreement between Excessive use of force in making arrest . . . 3020;
. . . 3410 VF-3010
Supplier/reseller relations Search incident to lawful arrest . . . 3024; VF-3013
Essential factual elements . . . 3405 Unlawful arrest without warrant, essential factual
Verdict form . . . VF-3407 elements of . . . 3021
Termination of reseller . . . 3409 Bane Act, claims under
Verdict forms Essential factual elements . . . 3066
Other unreasonable restraint of trade . . . VF- Verdict form . . . VF-3035
3404; VF-3405 Blacklist or boycott used to deny equal rights to con-
Price fixing . . . VF-3400 duct business (See subhead: Unruh Civil Rights Act)
Business establishments (See subhead: State law)
CAUSATION Civil penalty under Ralph Act . . . 3068
FELA claims (See FEDERAL EMPLOYERS’ LIABIL- Compensatory damages
ITY ACT (FELA)) Ralph Act . . . 3068; VF-3033
Negligence (See NEGLIGENCE) Unruh Civil Rights Act . . . 3067
Probable cause Conduct
False arrest (See FALSE IMPRISONMENT, sub- Public officers and employees, conduct of (See sub-
head: Defenses) head: Public entities, liability of)
Malicious prosecution (See MALICIOUS PROS- Substantial motivating reason (See subhead: Dis-
ECUTION, subhead: Reasonable grounds) criminatory intent)
Whistleblower protection provision of False Claims Act Supervisor’s liability for employee’s misconduct
. . . 4600; VF-4600 . . . 3005
CDAFA (See COMPREHENSIVE COMPUTER DATA Damages award
AND ACCESS FRAUD ACT (CDAFA)) Ralph Act . . . 3068; VF-3033
Unruh Civil Rights Act . . . 3067
CERTAINTY Defenses, affirmative (See subhead: Search and search
Amount of contract damages, certainty as to . . . 352; warrant)
353; 359 Deliberate indifference standard
Construction of contract against party that caused uncer- Failure to train . . . 3003
tainty . . . 320 Harassment in educational institution . . . 3069
I-6
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INDEX CIVIL
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CIVIL RIGHTS—Cont. CIVIL RIGHTS—Cont.
Deliberate indifference standard—Cont. Federal law (42 U.S.C. § 1983)—Cont.
Prisoner’s medical needs . . . 3041 Essential factual elements of claims—Cont.
Disability discrimination (See subhead: State law) Removal of child from parental custody without
Discriminatory intent warrant, unlawful . . . 3051
Business dealings, discrimination in . . . 3061 Retaliation for exercising constitutionally pro-
Ralph Act cause of action involving acts or threats of tected rights . . . 3050; 3053
violence . . . 3063; 3064 Unreasonable search or seizure . . . 3022; 3023
Unruh Civil Rights Act . . . 3060 Excessive use of force (See subhead: Excessive use
Educational institution, harassment in . . . 3069
of force)
Eighth Amendment rights (See subhead: Prisoners’ fed-
Fabricated evidence resulting in deprivation of rights,
eral rights, violation of)
use of . . . 3052
Emergency exception to search warrant requirement
. . . 3027 Failure to train officers/employees, local government
Essential factual elements entity liability for . . . 3003; VF-3002
Federal law, claims under (See subhead: Federal law First Amendment (See FIRST AMENDMENT
(42 U.S.C. § 1983)) RIGHTS)
State law, claims under (See subhead: State law) Fourth Amendment rights (See subhead: Search and
Ethnicity, discrimination based on (See subhead: State search warrant)
law) General instruction on essential factual elements of
Excessive use of force violation of . . . 3000
Arrest or investigatory stop Governmental entities, liability of (See subhead:
Essential factual elements of excessive force Public entities, liability of)
claim . . . 3020 Knowledge (See subhead: Knowledge)
Verdict form . . . VF-3010 Prisoners’ rights (See subhead: Prisoners’ federal
Determining whether force was excessive . . . 3020; rights, violation of)
3042 Public entities, liability of (See subhead: Public enti-
Prisoner’s federal civil rights, violation of ties, liability of)
Elements of claim . . . 3042 Retaliation for exercising constitutionally protected
Verdict form . . . VF-3020 rights, essential factual elements to establish
Verdict forms . . . 3050; 3053
Arrest, excessive use of force in making Search and search warrant (See subhead: Search and
. . . VF-3010 search warrant)
Prisoner’s federal civil rights, violation of Supervisor’s liability for employee’s misconduct
. . . VF-3020 . . . 3005
Exigent circumstances required warrantless search, de- Verdict forms
fense alleging . . . 3026 Excessive use of force . . . VF-3010; VF-3020
Fabricated evidence resulting in deprivation of rights, Failure to train officers/employees, local govern-
use of . . . 3052 ment entity liability for . . . VF-3002
Federal law (42 U.S.C. § 1983) General form . . . VF-3000
Affirmative defenses (See subhead: Search and Municipal liability for civil rights violations
search warrant) . . . VF-3001; VF-3002
Arrest (See subhead: Arrest) Prisoners’ rights (See subhead: Prisoners’ federal
Defenses, affirmative (See subhead: Search and rights, violation of)
search warrant) Search and search warrant (See subhead: Search
Eighth Amendment rights (See subhead: Prisoners’ and search warrant)
federal rights, violation of) First Amendment rights (See FIRST AMENDMENT
Essential factual elements of claims RIGHTS)
Excessive use of force in making arrest Fourteenth Amendment rights, conditions of confine-
. . . 3020 ment and medical care in violation of detainee’s
Fabricated evidence resulting in deprivation of . . . 3046
rights, use of . . . 3052 Fourth Amendment rights (See subhead: Search and
Failure to train officers/employees, local govern- search warrant)
ment entity liability for . . . 3003 Freedom from intimidation or violence (See subhead:
General instruction on violation of federal civil Ralph Act, claims based on violence under)
rights . . . 3000 Gender discrimination (See subhead: Sex discrimina-
Official policy or custom, civil rights violations tion)
arising from . . . 3001 Governmental entities, liability of (See subhead: Public
Official with final policymaking authority, act or entities, liability of)
ratification by . . . 3004 Indifference of public entity
Prisoners’ rights (See subhead: Prisoners’ federal Failure to train . . . 3003
rights, violation of) Harassment in educational institution . . . 3069
I-7
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CIVIL INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CIVIL RIGHTS—Cont. CIVIL RIGHTS—Cont.
Indifference of public entity—Cont. Prisoners’ federal rights, violation of
Prisoner’s medical needs . . . 3041 Conditions of confinement, claim of harmful
Intent Deprivation of necessities . . . 3043; VF-3023
Discriminatory intent (See subhead: Discriminatory Elements of claim . . . 3040
intent) Pretrial detainee’s Fourteenth Amendment rights,
Federal civil rights violations, intent as element of violation of . . . 3046
. . . 3000; 3001 Verdict form . . . VF-3021
Interference with civil rights, intentional (See sub- Deprivation of necessities . . . 3043; VF-3023
Excessive use of force
head: Bane Act, claims under)
Elements of claim . . . 3042
Interference with civil rights, intentional (See subhead:
Verdict form . . . VF-3020
Bane Act, claims under)
Medical care, provision of inadequate
Knowledge Elements of claim . . . 3041
Deliberate indifference, knowing disregard as ele- Pretrial detainee’s Fourteenth Amendment rights,
ment of . . . 3003 violation of . . . 3046
Harassment in educational institution . . . 3069 Verdict form . . . VF-3022
Prison conditions, knowingly creating risk of harm Verdict forms
through . . . 3040 Excessive use of force . . . VF-3020
Labor dispute, violent acts or threats of violence based Medical care, provision of inadequate . . . VF-
on position in 3022
Essential factual elements Substantial risk of serious harm . . . VF-3021
Actual acts of violence . . . 3063 Privacy, right to (See INVASION OF PRIVACY)
Threats of violence . . . 3064 Property damage
Verdict form . . . VF-3033 Bane Act (See subhead: Bane Act, claims under)
Lawful arrest, defense alleging reasonable search inci- Ralph Act (See subhead: Ralph Act, claims based on
dent to violence under)
Elements of defense . . . 3024 Public accommodations, discrimination in access to
Verdict form . . . VF-3013 . . . 3060; VF-3030
Medical conditions and care Public entities, liability of
Discrimination based on medical condition (See sub- Deliberate indifference of public entity
head: State law) Failure to train . . . 3003
Prisoner, claim of inadequate medical care provided Harassment in educational institution . . . 3069
to Prisoner’s medical needs . . . 3041
Elements of claim . . . 3041 Municipal liability for civil rights violation, claim of
Verdict form . . . VF-3022 Elements of claim for violations arising from offi-
Municipal liability for civil rights violation, claim of cial policy or custom . . . 3001
Elements of claim for violations arising from official Failure to train, essential factual elements of
policy or custom . . . 3001 claim for . . . 3003
Failure to train, essential factual elements of claim Official with final policymaking authority, ele-
for . . . 3003 ments of claim based on act or ratification by
Official with final policymaking authority, elements . . . 3004
of claim based on act or ratification by . . . 3004 Verdict forms . . . VF-3001; VF-3002
Verdict form . . . VF-3001; VF-3002 Official policy or custom
National origin, discrimination based on (See subhead: Explained . . . 3002
State law) Municipal liability for violations arising from of-
Official policy or custom, violations arising from (See ficial policy or custom . . . 3001
subhead: Public entities, liability of) Official with final policymaking authority, elements
Official with final policymaking authority, elements of of claim based on act or ratification by . . . 3004
claim based on act or ratification by . . . 3004 Prisons and prisoners (See subhead: Prisoners’ fed-
Parental custody without warrant, unlawful removal of eral rights, violation of)
child from . . . 3051 Training program, claim alleging inadequacy of
Penalty under Ralph Act, civil . . . 3068 Essential factual elements . . . 3003
Political affiliation, violent acts or threats of violence Verdict form . . . VF-3002
based on Verdict forms
Essential factual elements Municipal liability for civil rights violation, claim
Actual acts of violence . . . 3063 of . . . VF-3001
Threats of violence . . . 3064 Train, failure to . . . VF-3002
Verdict form . . . VF-3033 Punitive damages under Ralph Act . . . 3068
Price discrimination based on gender Race, discrimination based on (See subhead: State law)
Essential factual elements . . . 3062 Ralph Act, claims based on violence under
Verdict form . . . VF-3032 Civil penalty . . . 3068
I-8
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INDEX CIVIL
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CIVIL RIGHTS—Cont. CIVIL RIGHTS—Cont.
Ralph Act, claims based on violence under—Cont. Sex discrimination—Cont.
Damages award . . . 3068; VF-3033 Verdict forms—Cont.
Essential factual elements Price discrimination based on gender . . . VF-
Actual acts of violence . . . 3063 3032
Threats of violence . . . 3064 Violent acts or threats of violence, violation of
Verdict form . . . VF-3033 Ralph Act by . . . VF-3033
Reasonableness of search, determination of Violence, claims under Ralph Act involving
. . . 3024–3026 Actual acts of violence, essential factual elements
Refusal of equal rights under Unruh Civil Rights Act of . . . 3063
(See subhead: Unruh Civil Rights Act) Threats of violence, essential factual elements of
Religion, discrimination based on (See subhead: State . . . 3064
law) Verdict form . . . VF-3033
Retaliation for exercising constitutionally protected Sexual harassment
rights, essential factual elements to establish Essential factual elements . . . 3065
. . . 3050; 3053 Verdict form . . . VF-3034
Search and search warrant State law
Affirmative defenses Bane Act (See subhead: Bane Act, claims under)
Consent to search . . . 3025 Blacklist or boycott used to deny equal rights to con-
Emergency exception to warrant requirement duct business (See subhead: Unruh Civil Rights
. . . 3027 Act)
Exigent circumstances . . . 3026 Conduct business, denial of equal rights to (See sub-
Search incident to lawful arrest . . . 3024; VF- head: Unruh Civil Rights Act)
3013 Equal Pay Act, violation of California . . . 2740
Consent to search, defense of . . . 3025 Essential factual elements of claims
Emergency exception to warrant requirement Bane Act . . . 3066
. . . 3027 Equal Pay Act, violation of California . . . 2740
Reasonableness of search, determination of Price discrimination based on gender . . . 3062
. . . 3024–3026 Ralph Act . . . 3063; 3064
Search incident to lawful arrest Sexual harassment in defined relationship
Elements of defense . . . 3024 . . . 3065
Verdict form . . . VF-3013 Unruh Civil Rights Act, claims under (See sub-
Unreasonable search or seizure head: Unruh Civil Rights Act)
Without warrant . . . 3023; VF-3012; VF-3013 Gender discrimination (See subhead: Sex discrimina-
With warrant . . . 3022; VF-3011 tion)
Verdict forms Interference with civil rights (See subhead: Bane
Search incident to lawful arrest . . . VF-3013 Act, claims under)
Without warrant, unreasonable search . . . VF- Public accommodations, discrimination in access to
3012; VF-3013 . . . 3060; VF-3030
With warrant, unreasonable search . . . VF-3011 Ralph Act (See subhead: Ralph Act, claims based on
Warrantless search violence under)
Essential factual elements of unreasonable search Sex discrimination (See subhead: Sex discrimination)
or seizure . . . 3023 Substantial motivating reason (See subhead: Dis-
Search incident to lawful arrest exception to war- criminatory intent)
rant requirement . . . 3024; VF-3013 Unruh Civil Rights Act (See subhead: Unruh Civil
Verdict forms . . . VF-3012; VF-3013 Rights Act)
Sex discrimination Verdict forms
Accommodations and other services, denial of Bane Act, claims under . . . VF-3035
. . . 3060 Gender price discrimination . . . VF-3032
Conduct business, violation of equal rights to Price discrimination based on gender . . . VF-
. . . 3061 3032
Equal Pay Act, violation of California . . . 2740 Ralph Act, claims under . . . VF-3033
Harassment in defined relationship, sexual Sexual harassment in defined relationship
Essential factual elements . . . 3065 . . . VF-3034
Verdict form . . . VF-3034 Unruh Civil Rights Act . . . VF-3030; VF-3031
Price discrimination based on gender Violent acts or threats of violence (See subhead: Vio-
Essential factual elements . . . 3062 lent acts or threats of violence)
Verdict form . . . VF-3032 Substantial motivating reason (See subhead: Discrimina-
Verdict forms tory intent)
Harassment in defined relationship, sexual Supervisor’s liability for employee’s misconduct
. . . VF-3034 . . . 3005
I-9
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CIVIL INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CIVIL RIGHTS—Cont. CLEAR AND CONVINCING EVIDENCE (See
Threats of violence (See subhead: Violent acts or threats BURDEN OF PROOF)
of violence)
CLOSE-OUT SALES (See UNFAIR PRACTICES
Training of officers/employees, local government liabil-
ACT, subhead: Defenses)
ity for inadequate
Essential factual elements . . . 3003 COACH, ATHLETIC
Verdict form . . . VF-3002 Elements to establish liability for injury to participant in
Treble damages under Unruh Civil Rights Act sport activity . . . 471; VF-404
. . . 3067
Unlawful arrest by police officer without warrant CO-EMPLOYEES OR CO-WORKERS
. . . 3021 Fair Employment and Housing Act (See FAIR EM-
Unreasonable arrest PLOYMENT AND HOUSING ACT)
Essential factual elements of excessive force claim Workers’ Compensation action, defendant in (See
. . . 3020 WORKERS’ COMPENSATION)
Verdict form . . . VF-3010
Unreasonable search (See subhead: Search and search COERCION
warrant) Cartwright Act prohibitions (See CARTWRIGHT ACT,
Unruh Civil Rights Act subhead: Vertical restraints)
Conduct business, denial of equal rights to Defamatory statement, coerced self-publication of
Essential factual elements . . . 3061 . . . 1708
Verdict form . . . VF-3031
Damages award . . . 3067 COLLABORATION AMONG COMPETITORS (See
Essential factual elements of claims CARTWRIGHT ACT, subhead: Horizontal restraints)
Conduct business, denial of equal rights to
COMMISSIONS (See UNFAIR PRACTICES ACT,
. . . 3061
subhead: Secret rebates)
General instruction . . . 3060
Eviction, affirmative defense of discriminatory COMMON CARRIERS
. . . 4323 Acceptance of passenger . . . 907
General instruction on essential factual elements of Applicability of negligence instructions . . . 900; 901;
claim . . . 3060
908
Public accommodations, discrimination in access to
Assault, duty to protect passengers from . . . 908
. . . 3060; VF-3030
Boarding and departing, safe place for . . . 907
Ralph Act (See subhead: Ralph Act, claims based on
Boiler Inspection Act (BIA) (See FEDERAL EMPLOY-
violence under)
Substantial motivating reason element . . . 3060 ERS’ LIABILITY ACT (FELA), subhead: Boiler In-
Verdict forms . . . VF-3030; VF-3031 spection Act violations)
Verdict forms Child passengers, duty toward . . . 905
Federal law (42 U.S.C. § 1983) (See subhead: Fed- Comparative negligence
eral law (42 U.S.C. § 1983)) FELA cases (See FEDERAL EMPLOYERS’ LI-
State law (See subhead: State law) ABILITY ACT (FELA))
Violent acts or threats of violence Own safety, duty of passenger for . . . 906
Federal law, claims for excessive use of force under Crossing, railroad (See RAILROAD CROSSINGS)
(See subhead: Excessive use of force) Definitions . . . 900; 901; 907
Freedom from intimidation or violence (See subhead: Disabled or infirm passengers, duty toward . . . 904
Ralph Act, claims based on violence under) Duty of care (See subhead: Standard of care)
State law Equipment, duty to provide and maintain safe . . . 903;
Bane Act (See subhead: Bane Act, claims under) 2901
Ralph Act (See subhead: Ralph Act, claims based Factors indicating common carrier status . . . 901
on violence under) Federal Employers’ Liability Act (See FEDERAL EM-
Verdict forms PLOYERS’ LIABILITY ACT (FELA))
Bane Act, claims under . . . VF-3035 Federal Safety Appliance Act (FSAA) (See FEDERAL
Federal law, claims under (See subhead: Exces- EMPLOYERS’ LIABILITY ACT (FELA), subhead:
sive use of force) Federal Safety Appliance Act violations)
Ralph Act, claims under . . . VF-3033 FELA cases (See FEDERAL EMPLOYERS’ LIABIL-
Warrant ITY ACT (FELA))
Search warrant (See subhead: Search and search war- Foreseeability
rant) Assault, duty to protect passengers from likely
Unlawful arrest without warrant, essential factual . . . 908
elements of . . . 3021 FELA cases (See FEDERAL EMPLOYERS’ LI-
ABILITY ACT (FELA))
CLASS ACTION General duty of foresight . . . 902
General instruction defining . . . 115 Ill or disabled passenger, duty toward . . . 904
I-10
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INDEX COMPUT
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
COMMON CARRIERS—Cont. COMPARATIVE NEGLIGENCE—Cont.
Introductory instructions General instruction regarding plaintiff’s negligence
FELA cases, introduction to damages for personal . . . 405
injury in . . . 2941 Indemnity, comparative (See EQUITABLE INDEM-
General introductory instruction . . . 900 NITY)
Minors (See MINORS) Medical patient’s duty to provide for own well-being
Own safety, duty of passenger for . . . 906 . . . 517
Passenger defined . . . 907 Multiple defendants, damages from . . . 3933
Safety Nonparty tortfeasors, apportionment of responsibility to
Equipment, duty to provide and maintain safe . . . 406; VF-402
Premises liability actions (See subhead: Verdict forms)
. . . 903; 2901
Products liability (See PRODUCTS LIABILITY)
Standard of care (See subhead: Standard of care)
Proposition 51 . . . 3933
Standard of care
Railroad crossing, driver’s duty of care in approaching
Assault, duty to protect passengers from . . . 908 . . . 806
Boarding and departing, safe place for . . . 907 Tort damage awards, consideration in . . . 3960
Disabled or infirm passengers, duty toward . . . 904 Verdict forms
FELA, railroad’s duty of care under . . . 2901 General form to determine comparative fault in
General instruction . . . 902 multiple-tortfeasor case . . . VF-402
Minor passengers, duty toward . . . 905 Premises liability actions
Own safety, duty of passenger for . . . 906 Comparative fault of plaintiff at issue . . . VF-
Status of common carrier disputed . . . 901 1002
Status of passenger disputed . . . 907 Comparative negligence of others not at issue
. . . VF-1000
COMMON COUNTS Products liability (See PRODUCTS LIABILITY,
Book account . . . 372 subhead: Comparative negligence)
Goods and services rendered . . . 371 Single-defendant case where plaintiff’s negligence at
Mistaken receipt of goods . . . 374 issue and fault of others not at issue . . . VF-401
Money counts Vicarious liability of plaintiff based on agent’s compara-
Mistaken receipt of goods . . . 374 tive fault, defense asserting . . . 3702
Open book account . . . 372
Stated account . . . 373 COMPENSATORY DAMAGES
Money had and received . . . 370 Breach of contract (See BREACH OF CONTRACT,
Open book account . . . 372 DAMAGES FOR)
Stated account . . . 373 Cartwright Act violation . . . 3440
Civil rights violations . . . 3067; 3068; VF-3033
COMMON LAW Defamation (See DEFAMATION)
Business proprietor’s common-law right to detain for Defined . . . 350
investigation as privilege against false imprisonment Emotional distress (See EMOTIONAL DISTRESS, sub-
action . . . 1409 head: Damages)
Privacy interests (See INVASION OF PRIVACY) Employment contracts (See EMPLOYMENT CON-
TRACTS, subhead: Damages)
COMMUTING (See VICARIOUS LIABILITY, sub- FELA claims (See FEDERAL EMPLOYERS’ LIABIL-
head: Going-and-coming rule) ITY ACT (FELA), subhead: Damages)
COMPARABLE JOB (See FAMILY RIGHTS ACT) Fraud (See FRAUD)
Invasion of privacy . . . 1820; 1821
COMPARATIVE FAULT (See COMPARATIVE NEG- Purpose of . . . 350
LIGENCE) Ralph Act, violations of . . . 3068; VF-3033
Unlawful detainer, damages for reasonable rental value
COMPARATIVE INDEMNITY (See EQUITABLE in claim of . . . 4340
INDEMNITY) Unruh Civil Rights Act, violations of . . . 3067
COMPARATIVE NEGLIGENCE COMPREHENSIVE COMPUTER DATA AND AC-
Apportionment of responsibility among parties and non- CESS FRAUD ACT (CDAFA)
parties . . . 406; VF-402 “Access” defined . . . 1813
Common carriers (See COMMON CARRIERS; FED- Damages, money spent to investigate violation as
ERAL EMPLOYERS’ LIABILITY ACT (FELA)) . . . 1814
Contribution among tortfeasors (See EQUITABLE IN- Essential factual elements of claim under . . . 1812
DEMNITY)
Dangerous condition of public property . . . 1102 COMPUTERS
Decedent’s comparative fault . . . 407 Computer Data And Access Fraud Act (CDAFA), Com-
FELA cases (See FEDERAL EMPLOYERS’ LIABIL- prehensive (See COMPREHENSIVE COMPUTER
ITY ACT (FELA)) DATA AND ACCESS FRAUD ACT (CDAFA))
I-11
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CONCEA INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CONCEALMENT CONCLUDING INSTRUCTIONS—Cont.
Evidence, concealment of (See EVIDENCE) Verdict—Cont.
Fraud (See FRAUD) Right to discuss deliberations and verdict following
discharge of jury . . . 5090
CONCLUDING INSTRUCTIONS
Witnesses and testimony
After closing argument . . . 5000
Generally . . . 5002; 5003
Alternate juror
Reading back of testimony . . . 5011
Instructions to . . . 5015
Substitution of . . . 5014 CONDEMNATION (See EMINENT DOMAIN)
Alternate juror, substitution of . . . 5014
Attorneys’ statements as non-evidence . . . 5002 CONDITIONS PRECEDENT
Audio or video recording and transcription . . . 5018 Agreed condition precedent, occurrence of . . . 322
Before closing argument . . . 5000 Existence and occurrence of condition precedent dis-
Bias of juror against witness, caution against . . . 5003 puted . . . 321
Commenting by judge on evidence . . . 5016 Waiver of condition precedent . . . 323
Conservatorship under Lanterman-Petris-Short Act, de-
termination of grave disablement for . . . 4012 CONDUCT
Deadlocked jury admonition . . . 5013 Aiding and abetting . . . 3610
Deliberation, procedural instructions to jurors for Civil rights violations, conduct giving rise to (See
. . . 5009 CIVIL RIGHTS)
Demonstrative evidence . . . 5020 Conspiracy agreement indicated by . . . 3600
Duties of judge and jury . . . 5000 Contracts (See CONTRACTS)
Electronic communications and research prohibited Despicable conduct (See MALICE)
. . . 5000 Emotional distress, types of conduct causing (See EMO-
Entity as party . . . 5006 TIONAL DISTRESS)
Evidence Insurance
Generally . . . 5002; 5003 Agent’s authority implied by . . . 2307
Commenting by judge on . . . 5016 Evaluating insurer’s conduct, factors to consider in
Demonstrative evidence . . . 5020 . . . 2337
Reading back of testimony . . . 5011 Interference with prospective economic relations
Exhibits admitted into evidence . . . 5002
through wrongful conduct . . . 2202; 2204
Final instruction on discharge of jury . . . 5090
Negligence (See NEGLIGENCE)
Insurance, relevance of presence or absence of
Outrageous conduct defined . . . 1602
. . . 5001
Trade secret misappropriation (See TRADE SECRET
Interpreter’s translation of non-English testimony, duty
to abide by . . . 5008 MISAPPROPRIATION)
Investigation or research of case by jurors, admonition Vicarious liability for agent’s wrongful conduct (See
against . . . 5000 VICARIOUS LIABILITY)
Juror questioning of witnesses . . . 5019 CONFIDENTIALITY (See INVASION OF PRIVACY)
Multiple parties . . . 5005
Non-person party . . . 5006 CONSENT
Note-taking . . . 5010 Abduction of elder or dependent adult, absence of con-
Polling of juror’s individual verdict in open court sent to (See ELDER ABUSE AND DEPENDENT
. . . 5009; 5017 ADULT CIVIL PROTECTION ACT, subhead: Ab-
Predeliberation instructions . . . 5009 duction)
Questions from jurors . . . 5019 Assault and battery (See ASSAULT AND BATTERY)
Reading back of testimony . . . 5011 Civil rights violation, consent to search as defense
Removal of claims or parties . . . 5007 against claim of . . . 3025
Service provider for juror with disability, role of Contracts (See CONTRACTS)
. . . 5004 Conversion, absence of consent as element of
Stipulations . . . 5002 . . . 2100
Substitution of alternate juror . . . 5014 Defamation, affirmative defense to . . . 1721
Testimony and witnesses False imprisonment, absence of consent as element of
Generally . . . 5002; 5003 . . . 1400; 1407
Reading back of testimony . . . 5011 Medical malpractice (See MEDICAL MALPRACTICE)
Translation of non-English testimony, duty to abide by Mistake, consent to contract obtained through (See
. . . 5008 MISTAKES)
Verdict Motor vehicle, permissive use of (See MOTOR VE-
Deadlocked jury admonition . . . 5013 HICLES AND HIGHWAY SAFETY)
Find facts and follow law, duty to . . . 5000 Nuisance, absence of consent as element of . . . 2020;
Polling of juror’s individual verdict in open court 2021
. . . 5009; 5017 Public disclosure of private facts, consent to . . . 1801
I-12
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INDEX CONSTR
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CONSENT—Cont. CONSTRUCTION CONTRACTS—Cont.
Search without warrant, defense against civil rights vio- Compensation claims—Cont.
lation alleging consent to . . . 3025 Quantum meruit recovery . . . 4542
Silence or inaction as indication of . . . 1302 Substantial performance . . . 4524
Trespass to chattels, absence of consent as element of Total cost recovery . . . 4541
. . . 2101 Completed and accepted, affirmative defense that work
. . . 4552
CONSEQUENTIAL DAMAGES Concealment of important information regarding con-
Breach of consumer-goods warranty . . . 3243 struction project, owner’s liability for . . . 4501; VF-
CONSERVATOR 4500
Elder abuse and dependent adult protection (See EL- Contractor’s damages for breach
DER ABUSE AND DEPENDENT ADULT CIVIL Change orders/extra work . . . 4540; 4541
PROTECTION ACT) Inefficiency because of owner conduct . . . 4544
Lanterman-Petris-Short Act (See LANTERMAN- Lost profits from other work . . . 4544
PETRIS-SHORT ACT) Owner-caused delay or acceleration . . . 4543
Quantum meruit recovery . . . 4542
CONSORTIUM, LOSS OF Total cost recovery . . . 4541
Tort damages for . . . 3920; VF-3907 Costs
Owner’s liability for concealment of important infor-
CONSPIRACY mation affecting . . . 4501; VF-4500
Agent/employee immunity rule, affirmative defense of Total cost recovery . . . 4541
. . . 3602 Defect or deficiency
Aiding and abetting . . . 3610 Breach of implied covenant to perform work in good
Cartwright Act violations (See CARTWRIGHT ACT) and competent manner . . . 4510; VF-4510
Essential factual elements . . . 3600 Plans and specifications, affirmative defense that con-
Ongoing conspiracy, defendant joining . . . 3601 tractor followed . . . 4511; VF-4510
CONSTITUTIONAL PROTECTIONS Right to Repair Act, claims under (See subhead:
Civil rights (See CIVIL RIGHTS) Right to Repair Act)
Privacy (See INVASION OF PRIVACY) Work completed and accepted, affirmative defense
that . . . 4552
CONSTRUCTION CONTRACTS Delay
Abandonment of contract Contractor’s damages for breach . . . 4543
Change-order requirements, effect on . . . 4523 Liquidated damages for delay . . . 4532
Quantum meruit recovery . . . 4542 Disclose important information regarding construction
Access to project site, breach of implied covenant to project, owner’s liability for failure to . . . 4501;
provide . . . 4502 VF-4500
Affirmative defenses Easements, breach of implied covenant to provide nec-
Latent defects in construction, statute of limitations essary . . . 4502
for . . . 4551 Failure to disclose important information regarding con-
Patent defects in construction, statute of limitations struction project, owner’s liability for . . . 4501; VF-
for . . . 4550 4500
Plans and specifications, affirmative defense that con- Fixed price construction contracts, owner liability for
tractor followed . . . 4511; VF-4510 failure to disclose facts affecting . . . 4501; VF-4500
Work completed and accepted . . . 4552 Implied warranty of correctness of plans and specifica-
Breach of contract tions, breach of . . . 4500
Contractor’s damages for breach (See subhead: Con- Latent defects in construction, statute of limitations for
tractor’s damages for breach) . . . 4551
Owner’s damages for breach (See subhead: Owner’s Licensed contractor, payment for construction services
damages for breach) rendered by . . . 4562
Changed or additional work Liquidated damages for delay . . . 4532
Abandonment of contract, claim for additional com- Necessary items within owner’s control, breach of im-
pensation based on . . . 4523 plied covenant to provide . . . 4502
Contractor’s claim for . . . 4520; 4540 Owner’s damages for breach
Procedures regarding change orders not followed, Failure to complete work . . . 4531
owner’s claim that . . . 4521; VF-4520 Improvements on real property, action for breach of
Total cost recovery . . . 4541 contract to construct . . . 354
Verdict form . . . VF-4520 Liquidated damages for delay . . . 4532
Waiver of written approval or notice requirements Work does not conform to contract . . . 4530
for . . . 4522 Patent defects in construction, statute of limitations for
Compensation claims . . . 4550
Abandonment of contract . . . 4523 Perform work in good and competent manner, breach of
Changed or additional work . . . 4540 implied covenant to . . . 4510; VF-4510
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CONSTR INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CONSTRUCTION CONTRACTS—Cont. CONTRACTORS (See CONSTRUCTION CON-
Permits, breach of implied covenant to provide neces- TRACTS)
sary . . . 4502
CONTRACTS
Plans and specifications
Acceptance (See subhead: Formation of contracts)
Affirmative defense that contractor followed
Affirmative defenses (See DEFENSES TO CONTRACT
. . . 4511; VF-4510
ACTIONS)
Breach of implied warranty of correctness of
Assignment
. . . 4500
Contested . . . 326
Quantum meruit recovery . . . 4542
Not contested . . . 327
Recovery of payments to unlicensed contractor
Assumption of risk by prior agreement . . . 451
. . . 4560; 4561
Bad faith (See GOOD FAITH AND BAD FAITH)
Right to Repair Act
Breach
Affirmative defenses
Generally (See PERFORMANCE AND BREACH)
Act of nature . . . 4572
Damages, recovery of (See BREACH OF CON-
Failure to minimize or prevent damage, unreason- TRACT, DAMAGES FOR)
able . . . 4573 Building contracts (See CONSTRUCTION CON-
Failure to properly maintain home . . . 4575 TRACTS)
Subsequent acts or omissions of plaintiff Capacity to contract as element essential to existence of
. . . 4574 contract . . . 302
Damages recoverable under . . . 4571 Cartwright Act violations, generally (See CART-
Essential factual elements for claim under . . . 4570 WRIGHT ACT)
Services rendered, payment for construction . . . 4562 Certainty (See CERTAINTY)
Statute of limitations Common counts (See COMMON COUNTS)
Latent defects in construction, statute of limitations Conditions precedent (See CONDITIONS PREC-
for . . . 4551 EDENT)
Patent defects in construction, statute of limitations Conduct
for . . . 4550 Anticipatory breach indicated by . . . 324
Substantial performance . . . 4524 Conspiracy agreement indicated by . . . 3600
Construction of contract by . . . 318
Total cost recovery . . . 4541
Implied-in-fact contract, conduct creating . . . 305
Unlicensed contractor, recovery of payments to
Novation agreed to by . . . 337
. . . 4560; 4561
Validity of contracts created by . . . 305
Work completed and accepted, affirmative defense that
Waiver by conduct
. . . 4552 Condition precedent waived by conduct . . . 323
CONSTRUCTION OF WRITTEN AGREEMENTS Defense to contract action . . . 336
Consent
(See INTERPRETATION OF WRITTEN AGREE-
Duress, consent to contract obtained through (See
MENTS)
DURESS)
CONSTRUCTIVE DISCHARGE (See EMPLOY- Essential element of contract . . . 302
MENT CONTRACTS; FAIR EMPLOYMENT AND Modification of contract by . . . 313
HOUSING ACT) Undue influence, consent to contract obtained
through . . . 334
CONSUMER GOODS, WARRANTY OF (See Consideration as essential element of contract . . . 302
SONG-BEVERLY CONSUMER WARRANTY ACT) Conspiracy defined as agreement . . . 3600
Construction of contracts (See INTERPRETATION OF
CONSUMERS WRITTEN AGREEMENTS)
Products liability (See PRODUCTS LIABILITY) Contested existence . . . 302
Warranty of consumer goods (See SONG-BEVERLY Damages (See BREACH OF CONTRACT, DAMAGES
CONSUMER WARRANTY ACT) FOR)
Defenses (See DEFENSES TO CONTRACT AC-
CONSUMERS LEGAL REMEDIES ACT TIONS)
Bona fide error and correction, affirmative defense of Duress, consent to contract obtained through (See DU-
. . . 4710 RESS)
Disabled plaintiff, statutory damages for . . . 4702 Electronic means, agreement formalized by . . . 380
Essential factual elements . . . 4700 Employment contracts (See EMPLOYMENT CON-
Notice requirement for damages . . . 4701 TRACTS)
Senior plaintiff, statutory damages for . . . 4702 Existence of contract contested, instruction where
. . . 302
CONTINUING VIOLATIONS Formation of contracts
Fair Employment and Housing Department, failure to Acceptance
file timely administrative complaint with . . . 2508 General acceptance instruction . . . 309
I-14
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INDEX CORPOR
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CONTRACTS—Cont. CONTRACTS—Cont.
Formation of contracts—Cont. Quasi-contract or unjust enrichment, restitution from
Acceptance—Cont. transferee based on . . . 375
Silence as acceptance . . . 310 Reasonable care, breach of implied duty to perform
Breach of contract—Contract formation at issue with . . . 328
. . . VF-303 Reliance damages . . . 361
Conspiracy agreement . . . 3600 Undue influence, consent to contract obtained through
Defenses (See DEFENSES TO CONTRACT AC- . . . 334
Unformalized agreement . . . 306
TIONS)
Uniform Electronic Transactions Act (UETA) . . . 380
Electronic means, agreement formalized by . . . 380
Waiver
Essential factual elements . . . 302
Conduct, waiver arising from (See subhead: Con-
Implied-in-fact contract, creation of . . . 305 duct)
Intent Express assumption of risk . . . 451
Hidden intentions of parties, relevance of Performance (See PERFORMANCE AND
. . . 302; 313 BREACH)
Implied-in-fact contract . . . 305 Written contracts . . . 304
Modification of contract . . . 313
Interpretation of written agreement, intention of par- CONTRIBUTION AMONG TORTFEASORS (See
ties considered in . . . 314–316 EQUITABLE INDEMNITY)
Modification of contract . . . 313 CONTRIBUTORY NEGLIGENCE (See COMPARA-
Offer TIVE NEGLIGENCE)
Acceptance of (See subhead: Formation of con-
tracts) CONTROL
General offer instruction . . . 307 Employee status, right-to-control test of . . . 2923;
Rejection of offer . . . 311 2924; 3704
Revocation of . . . 308 Nuisance, control of property as element of private
. . . 2021
Rejection of offer . . . 311
Premises area, extent of control over . . . 1002
Revocation of offer . . . 308
Public property in dangerous condition, entity owning
Silence as acceptance . . . 310
or controlling . . . 1101
Uniform Electronic Transactions Act (UETA) Traffic control signals, whether dangerous condition of
. . . 380 public property where lack of . . . 1120
Fraud (See FRAUD) Trespass, control of property as element of
General instruction on oral or written contract terms . . . 2000–2002
. . . 304
Implied agreements (See IMPLIED AGREEMENTS) CONVERSION (See also TRESPASS TO CHATTELS)
Implied covenant of good faith and fair dealing Consent, element of absence of . . . 2100
Elements of cause of action for breach of covenant Damages, presumed measure of . . . 2102
of good faith and fair dealing . . . 325 Destruction of property . . . 2100
Employment contracts (See EMPLOYMENT CON- Elements of conversion, essential factual . . . 2100
TRACTS) Emotional distress as element of damages . . . 2102
Insurance (See INSURANCE, subhead: Good faith Essential factual elements of conversion . . . 2100
and fair dealing) Fair market value, damages measured by . . . 2102
Verdict form . . . VF-303 General form of instruction . . . 2100
Implied duty to perform with reasonable care, breach of Intentionality, element of . . . 2100
. . . 328 Measure of damages, presumed . . . 2102
Insurance policies (See INSURANCE) Ownership of property, element of . . . 2100
Intent (See subhead: Formation of contracts) Possession or right to possess, element of . . . 2100
Interference with economic relations (See INTERFER- Special damages . . . 2102
ENCE WITH ECONOMIC RELATIONS) Verdict form . . . VF-2100
Interpretation (See INTERPRETATION OF WRITTEN CONVICTION OF CRIME (See CRIMINAL CON-
AGREEMENTS) VICTION)
Introduction—Breach of contract . . . 300
Legal purpose . . . 302 CORPORATIONS
Money counts (See COMMON COUNTS) Agents and officers, breach of fiduciary duty by (See
Offer (See subhead: Formation of contracts) FIDUCIARIES)
Oral contracts (See ORAL AGREEMENTS) Civil rights violations against . . . 3061
Parol evidence rule . . . 304 Concluding instruction on entity as party . . . 5006
Partly written and partly oral contracts . . . 304 Elder abuse and dependent adult protection (See EL-
Performance, generally (See PERFORMANCE AND DER ABUSE AND DEPENDENT ADULT CIVIL
BREACH) PROTECTION ACT, subhead: Employer defendants)
I-15
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CORPOR INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
CORPORATIONS—Cont. D
Equal rights of corporation to conduct business, viola-
tions of . . . 3061 DAMAGES
Fiduciary duty, breach of (See FIDUCIARIES) Actual damages (See COMPENSATORY DAMAGES)
Party, introductory instruction on entity as . . . 104 Breach of contract (See BREACH OF CONTRACT,
Trade secret misappropriation (See TRADE SECRET DAMAGES FOR)
MISAPPROPRIATION) Building contracts (See CONSTRUCTION CON-
TRACTS)
COSTS (See EXPENSES; FEES) Cartwright Act violation . . . 3440
Civil Rights Act, damages award under Unruh
COUNTIES (See PUBLIC ENTITIES) . . . 3067
COURT REPORTER Common carriers (See FEDERAL EMPLOYERS’ LI-
ABILITY ACT (FELA))
Consulting record made by, introductory instruction for
Comparative fault (See COMPARATIVE NEGLI-
. . . 102
GENCE)
COVENANTS AND CONDITIONS Compensatory damages (See COMPENSATORY DAM-
Building contracts (See CONSTRUCTION CON- AGES)
TRACTS) Condemnation (See EMINENT DOMAIN, subhead:
Lease and rental agreements (See UNLAWFUL DE- Just compensation)
Consumer-goods warranty, damages for breach of (See
TAINER, subhead: Breach of covenant or condition)
SONG-BEVERLY CONSUMER WARRANTY ACT)
CREDITORS AND DEBTORS Conversion damages, presumed measure of . . . 2102
Fraudulent transfers, essential factual elements of (See Defamation (See DEFAMATION)
FRAUDULENT TRANSFERS, subhead: Uniform Elder abuse and dependent adult protection actions (See
Voidable Transactions Act (UVTA)) ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT, subhead: Enhanced remedies
CRIME sought)
Arrest (See ARREST) Eminent domain proceedings (See EMINENT DO-
Civil rights, violations of (See CIVIL RIGHTS) MAIN, subhead: Just compensation)
Conspiracy (See CONSPIRACY) Employment contracts (See EMPLOYMENT CON-
False imprisonment (See FALSE IMPRISONMENT) TRACTS)
Malicious prosecution of criminal proceedings (See Exemplary damages (See PUNITIVE DAMAGES)
MALICIOUS PROSECUTION) FELA claims (See FEDERAL EMPLOYERS’ LIABIL-
ITY ACT (FELA))
Negligence claims involving criminal conduct (See
Future damages (See FUTURE DAMAGES)
NEGLIGENCE)
Insurer’s bad faith, damages for . . . 2350
Vicarious liability for criminal conduct . . . 3722
Joint and several liability of multiple defendants
Wrongful threat of criminal act . . . 332; VF-302
. . . 3933
CRIMINAL CONVICTION Legal matter, negligent handling of . . . 601
Legal malpractice action arising from wrongful convic- Measure of damages
Breach of contract (See BREACH OF CONTRACT,
tion . . . 606
DAMAGES FOR)
Witness, prior felony conviction of . . . 211
Conversion damages, presumed measure of
CROPS . . . 2102
Annual crops, tort damages for damage to . . . 3903H Minors (See MINORS)
Perennial crops, tort damages for damage to . . . 3903I Mitigation of damages
Breach of contract (See BREACH OF CONTRACT,
CROSS-COMPLAINT DAMAGES FOR)
Introductory instruction . . . 101 Tort damages (See TORT DAMAGES)
Multiple claims, causes of action, or counts, damages
CUSTODIAL NEGLECT (See ELDER ABUSE AND on . . . 3934; VF-3920
DEPENDENT ADULT CIVIL PROTECTION ACT, Multiple defendants . . . 3933
subhead: Neglect) Nominal damages (See NOMINAL DAMAGES)
Prejudgment interest on . . . 3935
CUSTOM OR PRACTICE Professional matter, negligent handling of nonmedical
Civil rights violation, official policy or custom giving . . . 601
rise to (See CIVIL RIGHTS, subhead: Public entities, Profits, damages for loss of (See PROFITS, LOSS OF)
liability of) Prospective damages (See FUTURE DAMAGES)
Negligence standard of care, consideration of customs Punitive damages (See PUNITIVE DAMAGES)
or practices for . . . 413 Ralph Act, damages award under . . . 3068; VF-3033
Severance damages (See EMINENT DOMAIN)
Special damages (See SPECIAL DAMAGES)
I-16
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INDEX DEFAMA
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
DAMAGES—Cont. DANGEROUS CONDITION OF PUBLIC
Tort damages (See TORT DAMAGES) PROPERTY—Cont.
Trade secret misappropriation Traffic signals
General instruction . . . 4409 Control signals, failure to provide . . . 1120
Punitive damages . . . 4411 Warning signals, signs, or markings, failure to pro-
Unlawful detainer (See UNLAWFUL DETAINER) vide . . . 1121
Unruh Civil Rights Act, damages award under Verdict forms
. . . 3067 General form . . . VF-1100
Wages, waiting-time penalty for nonpayment of Reasonable act or omission, affirmative defense of
. . . 2704; VF-2703 . . . VF-1101
Warnings
DANGEROUS CONDITION OF PUBLIC PROP- Design or plan of property, failure to warn of danger
ERTY related to . . . 1123
Adjacent property contributed to making public property Traffic warning signals, signs, or markings, failure to
dangerous, conditions on . . . 1125 provide . . . 1121
Affirmative defenses Weather conditions affecting streets and highways, affir-
Design immunity (See subhead: Design immunity) mative defense alleging nonliability for . . . 1122
Natural condition of unimproved property, injury
DANGEROUS SITUATIONS (See NEGLIGENCE,
caused by . . . 1110
subhead: Dangerous activities or situations; SAFETY)
Reasonable act or omission
Correction of condition, reasonable action or inac- DEADLOCKED JURY
tion for . . . 1112 Admonition regarding . . . 5013
Creation of condition by employee’s reasonable
DEATH
conduct . . . 1111
Comparative fault of decedent . . . 407
Verdict form . . . VF-1101
Elder abuse and dependent adult protection actions (See
Weather conditions affecting streets and highways,
ELDER ABUSE AND DEPENDENT ADULT CIVIL
nonliability for . . . 1122 PROTECTION ACT)
Comparative fault . . . 1102 Insurance (See INSURANCE)
Control of property . . . 1101 Intentional interference with expected inheritance, tort
Cornette v. Dept. of Transportation on design immunity of . . . 2205
. . . 1124 Railroad employee, death of (See FEDERAL EMPLOY-
Defenses (See subhead: Affirmative defenses) ERS’ LIABILITY ACT (FELA))
Definition of dangerous condition . . . 1102 Wrongful death actions (See WRONGFUL DEATH)
Design immunity
Generally . . . 1123 DEBTORS AND CREDITORS
Loss of . . . 1124 Fraudulent transfers, essential factual elements of (See
Employees FRAUDULENT TRANSFERS, subhead: Uniform
Negligence or wrongful conduct of employee, cre- Voidable Transactions Act (UVTA))
ation of condition by . . . 1100
Reasonable conduct of employee, affirmative defense DECEDENTS (See DEATH)
alleging condition created by . . . 1111 DECEIT (See FRAUD)
Essential factual elements . . . 1100
Foreseeability DEFAMATION
Element of claim, foreseeability of risk as . . . 1100 Actual damages
Use of property in foreseeable manner . . . 1102 Per quod defamation . . . 1701; 1703; 1705
Warning device, necessity of . . . 1121 Per se defamation . . . 1700; 1702; 1704
Weather conditions’ effect on streets and highways, Coerced self-publication . . . 1708
anticipation of . . . 1122 Common interest privilege against . . . 1723
Immunity from liability for harm based on plan or de- Compensatory damages (See subhead: Actual damages)
sign of property, loss of . . . 1123 Consent, affirmative defense of . . . 1721
Inspection system, defendant having reasonable Damages
. . . 1104 Actual damages (See subhead: Actual damages)
Natural condition of unimproved property causing in- Compensatory damages (See subhead: Actual dam-
jury, affirmative defense of . . . 1110 ages)
Notice of dangerous condition, proof of . . . 1100; Nominal damages for defamation per se . . . 1700;
1103 1702; 1704
Reasonable act or omission, defense alleging (See sub- Punitive damages (See subhead: Punitive damages)
head: Affirmative defenses) Defenses, affirmative
Reasonable inspection system, defendant having Consent . . . 1721
. . . 1104 Truth of statements
Signals (See subhead: Traffic signals) Generally . . . 1720
I-17
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DEFAMA INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
DEFAMATION—Cont. DEFAMATION—Cont.
Defenses, affirmative—Cont. Per se defamation—Cont.
Truth of statements—Cont. Private figure, matter of public concern involving
Private figure, affirmative defense of the truth of Essential factual elements . . . 1702
matter of private concern involving . . . VF- Verdict form . . . VF-1702
1704 Public officer/figure and limited public figure
Definition of statement . . . 1706 Essential factual elements . . . 1700
Despicable conduct, punitive damages for Verdict form . . . VF-1700
. . . 1700–1705 Punitive damages . . . 1700; 1702; 1704
Verdict forms
Fact versus opinion statements . . . 1707
Private figure, affirmative defense of the truth of
Fair and true reporting privilege against . . . 1724
matter of private concern involving . . . VF-
Fraud, punitive damages for . . . 1700–1705
1704
Limited public figure (See subhead: Public officer/figure Private figure, matter of private concern involving
and limited public figure) . . . VF-1704
Malice Private figure, matter of public concern involving
Privileges for communications made without (See . . . VF-1702
subhead: Privileges) Public officer/figure and limited public figure
Punitive damages for . . . 1700–1705 . . . VF-1700
Nominal damages for defamation per se . . . 1700; Private figure
1702; 1704 Matter of private concern
Opinion versus fact statements . . . 1707 Per quod defamation . . . 1705; VF-1705
Oppression, punitive damages for . . . 1700–1705 Per se defamation . . . 1704; VF-1704
Per quod defamation Truth of statements, affirmative defense of
Actual damages . . . 1701; 1703; 1705 . . . 1720
Essential factual elements Verdict forms . . . VF-1704; VF-1705
Private figure, matter of private concern involving Matter of public concern
. . . 1705 Per quod defamation . . . 1703; VF-1703
Private figure, matter of public concern involving Per se defamation . . . 1702; VF-1702
. . . 1703 Verdict forms . . . VF-1702; VF-1703
Public officer/figure and limited public figure Truth of statements, affirmative defense of . . . 1720
. . . 1701 Privileges
Private figure, matter of private concern involving Common interest privilege . . . 1723
Essential factual elements . . . 1705 Fair and true reporting privilege . . . 1724
Verdict form . . . VF-1705 Public officer/figure and limited public figure
Private figure, matter of public concern involving Per quod defamation
Essential factual elements . . . 1703 Essential factual elements . . . 1701
Verdict form . . . VF-1703 Verdict form . . . VF-1701
Public officer/figure and limited public figure Per se defamation
Essential factual elements . . . 1701 Essential factual elements . . . 1700
Verdict form . . . VF-1701 Verdict form . . . VF-1700
Punitive damages . . . 1701; 1703; 1705 Verdict forms
Verdict forms Per quod defamation . . . VF-1701
Private figure, matter of private concern involving Per se defamation . . . VF-1700
. . . VF-1705 Punitive damages
Private figure, matter of public concern involving Per quod defamation . . . 1701; 1703; 1705
. . . VF-1703 Per se defamation . . . 1700; 1702; 1704
Public officer/figure and limited public figure Retraction by news publication or broadcaster
. . . VF-1701 . . . 1709
Per se defamation Self-publication, coerced . . . 1708
Actual damages . . . 1700; 1702; 1704 Slander of title, essential factual elements of . . . 1730;
Essential factual elements VF-1720
Private figure, matter of private concern involving Statement defined . . . 1706
. . . 1704 Statute of limitations, affirmative defense of . . . 1722
Private figure, matter of public concern involving Title to property, words or act that clouds . . . 1730;
. . . 1702 VF-1720
Public officer/figure and limited public figure Trade libel, essential factual elements to establish claim
. . . 1700 of . . . 1731; VF-1721
Nominal damages . . . 1700; 1702; 1704 Truth, affirmative defense of the
Private figure, matter of private concern involving Generally . . . 1720
Essential factual elements . . . 1704 Private figure, affirmative defense of the truth of
Verdict form . . . VF-1704 matter of private concern involving . . . VF-1704
I-18
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INDEX DEFENS
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
DEFAMATION—Cont. DEFENSES—Cont.
Verdict forms Invasion of privacy (See INVASION OF PRIVACY)
Per quod defamation (See subhead: Per quod defa- Legal malpractice lawsuit, affirmative defense of statute
mation) of limitations for filing
Per se defamation (See subhead: Per se defamation) Four-year limit . . . 611
One-year limit . . . 610
DEFAULT Limitation of actions (See STATUTE OF LIMITA-
Unlawful detainer (See UNLAWFUL DETAINER) TIONS)
DEFECTS Malicious prosecution, reliance on counsel as affirma-
Building construction (See CONSTRUCTION CON- tive defense to . . . 1510; VF-1502
TRACTS) Medical negligence claims, affirmative defenses to (See
Products (See PRODUCTS LIABILITY, subhead: De- MEDICAL MALPRACTICE)
sign defect) Motor vehicle owner liability for permissive use, affir-
Repairs (See REPAIRS) mative defense to
Warranties against (See WARRANTIES) Generally . . . 721
Workers’ Compensation exclusivity rule, injury caused Verdict form . . . VF-701
by employer’s defective product as exception to Negligence, defenses against
Generally . . . 2803 Assumption of risk (See ASSUMPTION OF RISK)
Verdict form . . . VF-2802 Exculpatory releases . . . 451
Intentional tort/criminal act as superseding cause,
DEFENDING INSURED (See INSURER’S DUTY TO unforeseeable . . . 433
DEFEND) Medical negligence claims, affirmative defenses to
(See MEDICAL MALPRACTICE)
DEFENSES Statute of limitations
Assault and battery (See ASSAULT AND BATTERY) Equitable estoppel to assert statute of limitations
Assumption of risk (See ASSUMPTION OF RISK) defense . . . 456
Cartwright Act claims (See CARTWRIGHT ACT) Lawsuit filed after, affirmative defense alleging
CFRA claims (See FAMILY RIGHTS ACT) . . . 454
Comparative negligence (See COMPARATIVE NEGLI- Waivers and releases . . . 451
GENCE) Nuisance, affirmative defense of statute of limitations in
Consent as defense (See CONSENT) private . . . 2030
Conspiracy defense based on agent/employee immunity Premises liability, affirmative defense to (See PREM-
rule . . . 3602 ISES LIABILITY, subhead: Recreation immunity)
Consumers Legal Remedies Act, bona fide error and Products liability, affirmative defenses to (See PROD-
correction as affirmative defenses under . . . 4710 UCTS LIABILITY)
Contract actions, affirmative defenses to (See DE- Song-Beverly Consumer Warranty Act (See SONG-
FENSES TO CONTRACT ACTIONS) BEVERLY CONSUMER WARRANTY ACT, sub-
Dangerous condition of public property, affirmative de- head: Affirmative defenses)
fenses to (See DANGEROUS CONDITION OF Statute of limitations (See STATUTE OF LIMITA-
PUBLIC PROPERTY) TIONS)
Defamation actions, defenses to (See DEFAMATION) Trade secret cases, affirmative defense based on infor-
Discrimination claims under Fair Employment and mation readily ascertainable by proper means in
Housing Act (See FAIR EMPLOYMENT AND . . . 4420
HOUSING ACT) Trespass, necessity defense to (See TRESPASS)
Emotional distress claims, affirmative defenses to (See Unfair Practices Act (See UNFAIR PRACTICES ACT)
EMOTIONAL DISTRESS) Unlawful detainer (See UNLAWFUL DETAINER)
Fair Employment and Housing Act claims (See FAIR Workers’ Compensation claims (See WORKERS’
EMPLOYMENT AND HOUSING ACT) COMPENSATION)
False imprisonment and false arrest (See FALSE IM-
PRISONMENT) DEFENSES TO CONTRACT ACTIONS
Family Rights Act, leave under (See FAMILY RIGHTS Conduct, waiver by . . . 336
ACT) Duress (See DURESS)
Fiduciary duty, affirmative defense of statute of limita- Employment, defenses to wrongful termination of (See
tions to breach of . . . 4120 EMPLOYMENT CONTRACTS)
Fraud, affirmative defense of statute of limitations in Fraud . . . 335
action for . . . 1925 Insurance (See INSURANCE)
Fraudulent transfers Mistake (See MISTAKES)
Good faith, affirmative defense of . . . 4207; VF- Novation . . . 337
4200 Statute of limitations as affirmative defense to breach of
Statute of limitations as affirmative defense contract . . . 338
. . . 4208 Threat, contract obtained by (See DURESS)
Insurance (See INSURANCE) Undue influence . . . 334
I-19
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DEFENS INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
DEFENSES TO CONTRACT ACTIONS—Cont. DEFINITIONS—Cont.
Waiver of performance . . . 336 Negligence—Cont.
Gross negligence . . . 425
DEFINITIONS
Offensive touching . . . 1300
Agent . . . 3705
Official policy or custom . . . 3002
Breach of implied warranty . . . 3210; 3211
Oppression . . . 1701–1705; 3115
Burden of proof . . . 200
Outrageous conduct . . . 1602
Cartwright Act definitions (See CARTWRIGHT ACT)
Partnerships . . . 3711
Circumstantial evidence . . . 202
Passenger . . . 907
Class action . . . 115
Plaintiff . . . 101
Clear and convincing evidence . . . 201
Reckless disregard . . . 1603
Common carrier . . . 900; 901
Recklessness . . . 3113
Consent, informed . . . 532
Conspiracy . . . 3600 Repair opportunities . . . 3202
Cross-examination . . . 101 Right-of-way . . . 701
Damages . . . 350 Scope of employment/authorization . . . 3720; 3721
Dangerous condition . . . 1102 Severance damages to remainder . . . 3511A; 3511B
Defendant . . . 101 Special employee . . . 3706
Deliberate indifference in civil rights context . . . 3003; Special risk of harm . . . 3708
3041 Statement . . . 1706
Dependent adult . . . 3112 Stipulation . . . 106; 5002
Deposition . . . 208 Substantial factor in causation . . . 430
Despicable conduct . . . 1701–1705; 3114; 3115 Threat, wrongful . . . 332; 333
Direct evidence . . . 202 Trade secret
Easement . . . 3510 Generally . . . 4402
Electronic record . . . 380 Misappropriation . . . 4400
Emergency . . . 731 Unfair Practices Act (See UNFAIR PRACTICES ACT)
Emotional distress (See EMOTIONAL DISTRESS) Unspecified term of employment . . . 2404; 2405
Employee . . . 3704; 3706 Waiver . . . 336
Employment contract definitions . . . 2404; 2405 Wrongful threat . . . 332; 333
Exhibit . . . 101
Fair Employment and Housing Act definitions (See DELAY
FAIR EMPLOYMENT AND HOUSING ACT) Building contracts (See CONSTRUCTION CON-
Fair market value . . . 1923; 1924; 3501 TRACTS)
Family Rights Act definitions (See FAMILY RIGHTS Eminent domain action, damages for unreasonable delay
ACT) in commencement of . . . 3509A
Fiduciary duty . . . 4100 False imprisonment, unnecessary delay in processing or
Fraud . . . 1701–1705; 3116 releasing plaintiff during
Fraudulent Transfers Act, definitions under Uniform Essential factual elements . . . 1407
(See FRAUDULENT TRANSFERS) Verdict form . . . VF-1407
Good cause in employment context . . . 2404; 2405 Insurance benefits, unreasonable failure to pay or de-
Goodwill . . . 3513 layed payment of
Gravely disabled . . . 4002 Essential factual elements . . . 2331
Gross negligence . . . 425 General instruction . . . 2332
Harassment under Fair Employment and Housing Act Verdict form . . . VF-2301
(See FAIR EMPLOYMENT AND HOUSING ACT) Verdicts forms
Harm, special risk of . . . 3708 False imprisonment, unnecessary delay in processing
Highest and best use of condemned property . . . 3502 or releasing plaintiff during . . . VF-1407
Immediate hazard . . . 703 Insurance benefits, unreasonable failure to pay or
Implied warranty, breach of . . . 3210; 3211 delayed payment of . . . VF-2301
Informed consent to medical procedure . . . 532 DELIBERATIONS
Informed refusal of medical procedure . . . 534 Concluding instructions on deliberation procedure by
Insolvency . . . 4205 jury . . . 5009
Insurance policy limits . . . 2334 Introductory instructions . . . 100; 110
Intent instruction for intentional torts . . . 1320 Service provider for juror with disability, role of
Interstate commerce . . . 2900; 2920 . . . 110; 5004
Joint ventures . . . 3712
Malice . . . 1701–1705; 3114 DELIVERY
Managing agent . . . 3102A; 3102B Consumer goods under warranty, delivery to repair fa-
Mental disorder . . . 4001 cility of . . . 3200; 3201
Negligence Unfair Practices Act, cost for purposes of (See UNFAIR
Generally . . . 401 PRACTICES ACT, subhead: Cost)
I-20
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INDEX DISCOV
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
DEMOTION DISABLED PERSONS—Cont.
Generally (See EMPLOYMENT CONTRACTS) Genetic impairment/disability (See MEDICAL MAL-
Fair Employment and Housing Act violations (See PRACTICE)
FAIR EMPLOYMENT AND HOUSING ACT) Juror with disability, role of service provider for
. . . 110; 5004
DENTISTS Negligence
Standard of care for . . . 501; 502 Genetic impairment/disability (See MEDICAL MAL-
PRACTICE)
DEPENDENT ADULTS, PROTECTION OF (See
Standard of care (See subhead: Standard of care)
ELDER ABUSE AND DEPENDENT ADULT CIVIL
Public facilities, construction-related claim of access
PROTECTION ACT)
barriers to . . . 3070
DEPOSITIONS Standard of care
Substantive evidence, deposition as . . . 208 Common carrier’s duty toward disabled or infirm
Video depositions, transcriptions of . . . 5018 passengers . . . 904
General standard required of physically disabled per-
DESIGN son . . . 403
Defect in design (See PRODUCTS LIABILITY) Tort damages for aggravation of preexisting disability
Immunity for design of public property in dangerous . . . 3927
condition, loss of . . . 1123
DISCHARGE FROM EMPLOYMENT (See EM-
DESPICABLE CONDUCT (See MALICE) PLOYMENT CONTRACTS, subhead: Wrongful ter-
mination)
DESTRUCTION OF PROPERTY
Conversion by destruction . . . 2100 DISCLAIMERS
Evidence, warrantless search where possible destruction Consumer-goods implied warranties, defense of dis-
of . . . 3024; 3026 claimer of . . . 3221
Insurance policy, proof of coverage under destroyed
. . . 2305 DISCLOSURE
Construction project, owner’s liability for failure to dis-
DIFFICULT ACCOMMODATION (See FAIR EM- close important information regarding . . . 4501;
PLOYMENT AND HOUSING ACT, subhead: Undue VF-4500
hardship defense) Fraud (See FRAUD)
Insurer’s full disclosure to attorney as element of
DIRECT COMPETITORS (See CARTWRIGHT ACT, advice-of-counsel defense . . . 2335
subhead: Horizontal restraints) Invasion of privacy (See INVASION OF PRIVACY,
DIRECT EVIDENCE subhead: Publication)
General instruction on direct and indirect evidence Malicious prosecution, full disclosure to and reliance on
. . . 202 counsel as affirmative defense to . . . 1510
Motor vehicle returned to manufacturer under warranty
DISABLED PERSONS laws, breach of disclosure obligations after
Abuse of (See ELDER ABUSE AND DEPENDENT Essential factual elements . . . 3206
ADULT CIVIL PROTECTION ACT) Verdict form . . . VF-3206
Aggravation of preexisting disability, tort damages for Real estate brokers (See REAL ESTATE SALES—
. . . 3927 BROKERS)
Associational discrimination, disability-based . . . 2547 Trade secret misappropriation (See TRADE SECRET
Civil rights violations (See CIVIL RIGHTS, subhead: MISAPPROPRIATION)
State law) Whistleblower protection . . . 4600; 4601; VF-4600;
Common carrier’s duty toward disabled or infirm pas- VF-4601
sengers . . . 904
Consumers Legal Remedies Act, statutory damages for DISCONTINUED GOODS (See UNFAIR PRAC-
disabled plaintiff under . . . 4702 TICES ACT, subhead: Defenses)
Dependent adults, protection of (See ELDER ABUSE DISCOUNTS (See UNFAIR PRACTICES ACT)
AND DEPENDENT ADULT CIVIL PROTECTION
ACT) DISCOVERY
Discrimination based on disability Abuse of process, elements of . . . 1520
Civil rights violations (See CIVIL RIGHTS, sub- Admissions (See ADMISSIONS)
head: State law) Deposition as substantive evidence . . . 208
FEHA violations (See FAIR EMPLOYMENT AND Interrogatories (See INTERROGATORIES)
HOUSING ACT, subhead: Disability discrimina- Negligence
tion) Delayed-discovery rule, plaintiff seeking to overcome
Fair Employment and Housing Act, disability discrimi- statute of limitations defense by asserting
nation under (See FAIR EMPLOYMENT AND . . . 455
HOUSING ACT) Verdict form . . . VF-410
I-21
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DISCOV INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
DISCOVERY RULE DRAFTING JURY INSTRUCTIONS (See VER-
FELA claim for latent or progressive injury . . . 2922 DICTS)
DISCRIMINATION DRUGS
Associational discrimination, disability-based . . . 2547 Driving under the influence . . . 709
Civil rights violations (See CIVIL RIGHTS, subhead: Evidence of drug consumption in negligence case
State law) . . . 404
Disability discrimination (See DISABLED PERSONS) Prescription products liability cases . . . 1205; 1222
Discriminatory intent (See CIVIL RIGHTS; FAIR EM-
PLOYMENT AND HOUSING ACT) DUAL DISTRIBUTOR RESTRAINTS (See CART-
Employment discrimination (See FAIR EMPLOYMENT WRIGHT ACT, subhead: Horizontal restraints)
AND HOUSING ACT) DURESS
Equal Pay Act, violation of California . . . 2740 Affirmative defense to contract action
Equal rights, denial of (See CIVIL RIGHTS, subhead: Economic duress . . . 333
State law) General instruction . . . 332
Eviction (Unruh Civil Rights Act), affirmative defense Verdict form . . . VF-302
of discriminatory . . . 4323 Consent obtained by duress, invalidity of . . . 1303
Fair Employment and Housing Act violations (See Economic duress as affirmative defense to contract ac-
FAIR EMPLOYMENT AND HOUSING ACT) tion . . . 333
Juror bias for or against any party or witness, caution False imprisonment by use of unreasonable duress
against . . . 107; 113; 5003 . . . 1400
Locality discrimination (See UNFAIR PRACTICES General instruction on duress as affirmative defense to
ACT, subhead: Locality discrimination) contract action . . . 332; VF-302
Military status, employment discrimination prohibited Intentional interference with expected inheritance, tort
based on . . . 2441 of . . . 2205
Religion (See RELIGIOUS CREED DISCRIMINA- Waiver agreement, contesting validity of . . . 451
TION)
Sex discrimination (See CIVIL RIGHTS, subhead: Sex DUTIES OF JUDGE AND JURY
discrimination) Commenting by judge on evidence, concluding instruc-
tion on . . . 5016
DISMISSAL OF EMPLOYEE (See EMPLOYMENT Concluding instruction, general . . . 5000
CONTRACTS)
DISPARATE IMPACT DISCRIMINATION (See E
FAIR EMPLOYMENT AND HOUSING ACT)
EASEMENTS
DISPARATE TREATMENT DISCRIMINATION Construction project, breach of implied covenant to pro-
(See FAIR EMPLOYMENT AND HOUSING ACT) vide access necessary for . . . 4502
Prescriptive easements . . . 4901
DISRUPTION OF ECONOMIC RELATIONS (See Secondary easements, interference with . . . 4902
INTERFERENCE WITH ECONOMIC RELATIONS) Value of . . . 3510
DISTRIBUTORS ECONOMIC DAMAGES (See TORT DAMAGES)
Cartwright Act prohibitions, generally (See CART-
ECONOMIC HARDSHIP
WRIGHT ACT)
Contract action, economic duress as affirmative defense
Restraint of trade, generally (See CARTWRIGHT ACT)
to . . . 333
Unfair Practices Act (See UNFAIR PRACTICES ACT) Sexual harassment resulting in economic loss or disad-
DISTRICT ATTORNEY vantage . . . 3065
Malicious prosecution, reliance on district attorney’s ECONOMIC INTERFERENCE (See INTERFER-
advice as affirmative defense to . . . 1510 ENCE WITH ECONOMIC RELATIONS)
DOG BITE STATUTE EDUCATIONAL INSTITUTIONS
Essential elements of strict liability under . . . 463 Harassment in . . . 3069
Verdict form . . . VF-409
EIGHTH AMENDMENT RIGHTS (See CIVIL
DOGS RIGHTS, subhead: Prisoners’ federal rights, violation
Expenses of treating tortious injury to pet, recovery of of)
. . . 3903O
ELDER ABUSE AND DEPENDENT ADULT CIVIL
DOMESTIC VIOLENCE PROTECTION ACT
Unlawful detainer affirmative defense that tenant was Abduction
victim of . . . 4328 Attorney’s fees and costs, recovery of . . . 3110
I-22
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INDEX ELDER
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
ELDER ABUSE AND DEPENDENT ADULT CIVIL ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT—Cont. PROTECTION ACT—Cont.
Abduction—Cont. Enhanced remedies sought—Cont.
Employer defendants Physical abuse . . . 3107
Individual or individual and employer defendants Essential factual elements
. . . VF-3106 Neglect . . . 3103
Sole defendant, employer as . . . VF-3107 Physical abuse . . . 3106
Enhanced remedies sought . . . 3110 Evidence, requirement of clear and convincing (See
Essential factual elements . . . 3109 subhead: Enhanced remedies sought)
General instruction on essential factual elements Financial abuse
. . . 3109 Decedent’s pain and suffering . . . 3101
Verdict forms Employee defendants, individual or . . . 3101; VF-
Employer as sole defendant . . . VF-3107 3100
Individual or individual and employer defendants Employer as sole defendant . . . 3102B; VF-3101
. . . VF-3106 Enhanced remedies sought, employer liability for
Agents, officers, or directors (See subhead: Employer . . . 3102A; 3102B
defendants) Fraud . . . 3100–3102B
Attorney-in-fact, right to have property transferred to General instruction on essential factual elements
(See subhead: Financial abuse) . . . 3100
Attorneys’ fees and costs (See subhead: Enhanced rem- Individual and employer as defendants . . . 3102A
edies sought) Individual or employee defendants . . . 3101; VF-
Clear and convincing evidence requirement (See sub- 3100
head: Enhanced remedies sought) Intent to defraud . . . 3100–3102B
Consent or capacity to consent, absence of (See sub- Knowledge as element of . . . 3100–3102B
head: Abduction) Recklessness, malice, oppression, or fraud, claim that
Conservator defendant acted with . . . 3101
Abduction cases, absence of conservator’s consent in
Undue influence explained . . . 3117
(See subhead: Abduction)
Verdict forms
Lanterman-Petris-Short Act (See LANTERMAN-
Employer as sole defendant . . . VF-3101
PETRIS-SHORT ACT)
Transfer of property to conservator, right to have Individual or employee defendants . . . VF-3100
(See subhead: Financial abuse) Fraud
Corporate responsibility (See subhead: Employer defen- Explained . . . 3116
dants) Financial abuse . . . 3100–3102B
Custodial neglect (See subhead: Neglect) Intent to defraud in financial abuse
Damages, survival (See subhead: Enhanced remedies . . . 3100–3102B
sought) Neglect, element of . . . 3104
Definitions Physical abuse, element of . . . 3107
Dependent adult . . . 3112 Intent to defraud in financial abuse . . . 3100–3102A
Despicable conduct . . . 3114; 3115 Kidnapping (See subhead: Abduction)
Fraud . . . 3116 Knowledge
Malice . . . 3114 Financial abuse . . . 3100–3102B
Managing agent . . . 3102A; 3102B Neglect . . . 3104
Oppression . . . 3115 Physical abuse . . . 3107
Recklessness . . . 3113 Malice
Directors, officers, or agents (See subhead: Employer Explained . . . 3114
defendants) Financial abuse . . . 3101
Elements of claims (See subhead: Essential factual ele- Neglect, element of . . . 3104
ments) Physical abuse, element of . . . 3107
Employee defendants, financial abuse of individual or Managing agent of employer (See subhead: Employer
. . . 3101; VF-3100 defendants)
Employer defendants Neglect
Abduction (See subhead: Abduction) Employer defendants
Financial abuse . . . 3102A; 3102B; VF-3101 Individual or individual and employer defendants
Neglect (See subhead: Neglect) . . . 3104; VF-3102
Physical abuse (See subhead: Physical abuse) Sole defendant, employer as . . . VF-3103
Enhanced remedies sought Enhanced remedies sought . . . 3104
Abduction . . . 3110 Essential factual elements . . . 3103
Employer liability . . . 3102A; 3102B Fraud . . . 3104
Financial abuse . . . 3102A; 3102B General instruction on essential factual elements
Neglect . . . 3104 . . . 3103
I-23
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ELDER INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
ELDER ABUSE AND DEPENDENT ADULT CIVIL ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT—Cont. PROTECTION ACT—Cont.
Neglect—Cont. Verdict forms—Cont.
Individual or individual and employer defendants Abduction—Cont.
Essential factual elements . . . 3104 Individual or individual and employer defendants
Verdict form . . . VF-3102 . . . VF-3106
Knowledge as element of . . . 3104 Financial abuse
Recklessness, malice, oppression, or fraud as ele- Employer as sole defendant . . . VF-3101
ments of . . . 3104 Individual or employee defendants . . . VF-3100
Verdict forms Neglect
Employer as sole defendant . . . VF-3103 Employer as sole defendant . . . VF-3103
Individual or individual and employer defendants Individual or individual and employer defendants
. . . VF-3102 . . . VF-3102
Officers, directors, or agents (See subhead: Employer Physical abuse
defendants) Employer as sole defendant . . . VF-3105
Oppression Individual or individual and employer defendants
Explained . . . 3115 . . . VF-3104
Financial abuse . . . 3101
Neglect, element of . . . 3104 ELECTRIC POWER
Physical abuse, element of . . . 3107 Standard of care required in transmitting electric power
. . . 416
Physical abuse
Employer defendants ELECTRONIC DEVICES
Individual or individual and employer defendants Admonition against electronic communications and re-
. . . 3107; VF-3104 search by jurors . . . 116; 5000
Sole defendant, employer as . . . VF-3105 Confidential information, recording of (See INVASION
Enhanced remedies sought . . . 3107 OF PRIVACY)
Essential factual elements . . . 3106
ELECTRONIC EVIDENCE
Fraud . . . 3107
Exhibits provided in electronic format only . . . 5021
General instruction on essential factual elements
. . . 3106 ELECTRONIC RECORD
Individual or individual and employer defendants Contract formation . . . 380
Essential factual elements . . . 3107
EMERGENCIES
Verdict form . . . VF-3104
Fire alarm, definition of emergency including vehicle
Knowledge as element of . . . 3107
responding to . . . 731
Recklessness, malice, oppression, or fraud as ele-
Good Samaritans . . . 450B
ments of . . . 3107 Medical malpractice claim, defense to (See MEDICAL
Verdict forms MALPRACTICE)
Employer as sole defendant . . . VF-3105 Motor vehicles (See MOTOR VEHICLES AND HIGH-
Individual or individual and employer defendants WAY SAFETY)
. . . VF-3104 Negligence, generally (See NEGLIGENCE)
Recklessness Search without warrant, defense alleging circumstances
Explained . . . 3113 requiring . . . 3026; 3027
Financial abuse . . . 3101
Neglect, element of . . . 3104 EMINENT DOMAIN
Physical abuse, element of . . . 3107 After date of valuation of property, information discov-
Removal from state and restraint from returning (See ered . . . 3505
subhead: Abduction) Authorized entry to investigate property’s suitability,
Representative, right to have property transferred to damages arising from public entity’s . . . 3509B
(See subhead: Financial abuse) Benefits to remainder of property after severance, offset
Survival damages (See subhead: Enhanced remedies for . . . 3512
sought) Burden of proving amount of just compensation
Transfer of property, abuse involving (See subhead: Fi- . . . 3514
nancial abuse) Change in zoning or land use restriction, effect of
Trustee, right to have property transferred to (See sub- . . . 3503
head: Financial abuse) Comparable sales, valuation based on . . . 3517
Unlawful detainer affirmative defense that tenant was Damages (See subhead: Just compensation)
victim of elder abuse . . . 4328 Delay in commencement of action, damages for unrea-
Verdict forms sonable . . . 3509A
Abduction Easement, value of . . . 3510
Employer as sole defendant . . . VF-3107 Enhanced value, projection of . . . 3504
I-24
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INDEX EMOTIO
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
EMINENT DOMAIN—Cont. EMINENT DOMAIN—Cont.
Evidence Land use restriction or zoning, effect of change in
Burden of proving amount of just compensation . . . 3503
. . . 3514 Leasehold interest, bonus value of . . . 3508
Comparable sales, valuation based on . . . 3517 Offset of severance damages for benefits to remainder
Valuation testimony . . . 3515 of property . . . 3512
View of property . . . 3516 Personal property
Fair market value Just compensation for loss of . . . 3507
After date of valuation, information discovered Verdict form for fair market value plus loss of
. . . 3505 . . . VF-3502
Comparable sales, valuation based on . . . 3517 Precondemnation damages
Easement, value of . . . 3510 Authorized entry to investigate property’s suitability,
Enhanced value, projection of . . . 3504 damages arising from public entity’s . . . 3509B
Explained . . . 3501 Klopping damages . . . 3509A
Highest and best use (See subhead: Highest and best Projection of increase or decrease in market value
use) . . . 3504
Improvements, effect of . . . 3506 Remainder of property after partial taking (See subhead:
Projection of increase or decrease in value Severance damages)
. . . 3504 Severance damages
Severance of part of property, effect of (See subhead: Offset for benefits to remainder . . . 3512
Severance damages) Remainder, severance damages to
Testimony, valuation based on . . . 3515 Generally . . . 3511A
Verdict forms Construction, damage during . . . 3511B
Goodwill, fair market value plus . . . VF-3500 Verdict form for fair market value plus . . . VF-
Inventory, fair market value plus loss of . . . VF- 3501
3502 Testimony
Personal property, fair market value plus loss of Valuation based on . . . 3515
. . . VF-3502 Viewing of property to enhance understanding of
Severance damages, fair market value plus . . . 3516
. . . VF-3501 Unreasonable delay in commencement of action, dam-
Goodwill ages for . . . 3509A
Just compensation for loss of . . . 3513 Use of property, highest and best (See subhead: Highest
Verdict form for fair market value plus goodwill and best use)
. . . VF-3500 Verdict forms (See subhead: Fair market value)
Highest and best use View of property . . . 3516
Explained . . . 3502 Zoning or land use restriction, effect of change in
Zoning or land use restriction, effect of change in . . . 3503
. . . 3503
Improvements, effect of . . . 3506 EMOTIONAL DISTRESS
Introductory instruction . . . 3500 Affirmative defenses
Inventory Medical patient’s emotional state as defense to medi-
Just compensation for loss of . . . 3507 cal malpractice . . . 553
Verdict form for fair market value plus loss of Privileged conduct as defense to intentional infliction
. . . VF-3502 claim
Just compensation Generally . . . 1605
Authorized entry to investigate property’s suitability, Verdict form . . . VF-1601
damages arising from public entity’s . . . 3509B AIDS, fear of (See subhead: Fear of cancer, HIV, or
Burden of proving amount of . . . 3514 AIDS, conduct causing)
Delay in commencement of action, damages for un- Bystander, negligent infliction of emotional distress on
reasonable . . . 3509A Essential elements of claim . . . 1621
Fair market value (See subhead: Fair market value) Verdict form . . . VF-1604
Goodwill, recovery for loss of . . . 3513 Cancer, fear of (See subhead: Fear of cancer, HIV, or
Introductory instruction . . . 3500 AIDS, conduct causing)
Inventory, inclusion of loss of . . . 3507 Compensatory damages (See subhead: Damages)
Klopping damages . . . 3509A Conversion damages, emotional distress as element of
Leasehold interest, bonus value of . . . 3508 . . . 2102
Personal property, inclusion of loss of . . . 3507 Damages
Precondemnation damages (See subhead: Precondem- Conversion damages, emotional distress as element
nation damages) of . . . 2102
Severance damages (See subhead: Severance dam- Insurer’s damages for breach of implied covenant of
ages) good faith and fair dealing . . . 2350
Klopping damages . . . 3509A Invasion of privacy . . . 1820; 1821
I-25
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EMOTIO INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
EMOTIONAL DISTRESS—Cont. EMOTIONAL DISTRESS—Cont.
Defenses (See subhead: Affirmative defenses) Negligent infliction of emotional distress
Definitions Bystander, causing serious emotional distress of
Fear of developing cancer, HIV, or AIDS, reasonable Essential elements of claim . . . 1621
. . . 1601 Verdict form . . . VF-1604
List of emotions included in emotional distress Direct victim, causing serious emotional distress of
. . . 1620–1623 Essential factual elements . . . 1620
Outrageous conduct . . . 1602 Verdict form . . . VF-1603
Reckless disregard . . . 1603 Essential elements
Serious emotional distress . . . 1620–1623 Bystander . . . 1621
Severe emotional distress . . . 1604 Direct victim . . . 1620
Direct victim, negligent infliction of emotional distress Fear of cancer, HIV, or AIDS, conduct causing
on Elements of claim . . . 1622
Essential factual elements . . . 1620 Malice, oppression, or fraudulent intent . . . 1623
Verdict form . . . VF-1603 Verdict forms . . . VF-1605; VF-1606
Elements of Serious emotional distress defined . . . 1620–1623
Intentional infliction (See subhead: Intentional inflic- Verdict forms
tion of emotional distress) Bystander, causing serious emotional distress of
Negligent infliction (See subhead: Negligent inflic- . . . VF-1604
tion of emotional distress) Direct victim, causing serious emotional distress
Fear of cancer, HIV, or AIDS, conduct causing of . . . VF-1603
Intentional infliction of emotional distress Fear of cancer, HIV, or AIDS, conduct causing
Generally . . . 1601 . . . VF-1605; VF-1606
Verdict form . . . VF-1602 Oppressive conduct, fear of cancer, HIV, or AIDS
Negligent infliction of emotional distress (See sub- caused by . . . 1623
head: Negligent infliction of emotional distress) Outrageous conduct defined . . . 1602
Fraudulent conduct, fear of cancer, HIV, or AIDS Privileged conduct as defense to intentional infliction
caused by . . . 1623 claim
Good-faith belief that conduct was privileged as defense
Generally . . . 1605
to intentional infliction claim . . . 1605
Verdict form . . . VF-1601
HIV, fear of (See subhead: Fear of cancer, HIV, or
Reckless disregard defined . . . 1603
AIDS, conduct causing)
Insurer’s damages for breach of implied covenant of Serious emotional distress defined . . . 1620–1623
good faith and fair dealing . . . 2350 Severe emotional distress defined . . . 1604
Intent as element of negligent infliction of emotional Toxic substances, exposure to (See subhead: Fear of
distress . . . 1623 cancer, HIV, or AIDS, conduct causing)
Intentional infliction of emotional distress Verdict forms
Defense of privileged conduct . . . 1605 Intentional infliction (See subhead: Intentional inflic-
Essential factual elements . . . 1600 tion of emotional distress)
Fear of cancer, HIV, or AIDS, conduct causing Negligent infliction (See subhead: Negligent inflic-
Generally . . . 1601 tion of emotional distress)
Verdict form . . . VF-1602
Outrageous conduct, element of . . . 1602 EMPLOYERS AND EMPLOYEES
Privileged conduct, affirmative defense of Age discrimination, essential factual elements for estab-
Generally . . . 1605 lishing claim of . . . 2570
Verdict forms . . . VF-1601 Co-employees (See CO-EMPLOYEES OR CO-
Reckless disregard, element of . . . 1603 WORKERS)
Severe emotional distress, element of . . . 1604 Common carriers (See FEDERAL EMPLOYERS’ LI-
Verdict forms ABILITY ACT (FELA))
Fear of cancer, HIV, or AIDS, conduct causing Conspiracy defense based on agent/employee immunity
. . . VF-1602 rule . . . 3602
General form . . . VF-1600 Constitutional injuries, supervisor’s liability for employ-
Privileged conduct, affirmative defense of ee’s misconduct resulting in . . . 3005
. . . VF-1601 Contract for employment (See EMPLOYMENT CON-
List of emotions included in emotional distress TRACTS)
. . . 1620–1623 Dangerous condition of public property, employee creat-
Malicious conduct causing fear of cancer, HIV, or AIDS ing (See DANGEROUS CONDITION OF PUBLIC
Generally . . . 1623 PROPERTY)
Verdict form . . . VF-1606 Definition of employee . . . 3704; 3706
Medical patient’s emotional state as defense to medical Discrimination in employment (See FAIR EMPLOY-
malpractice . . . 553 MENT AND HOUSING ACT)
I-26
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INDEX EMPLOY
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
EMPLOYERS AND EMPLOYEES—Cont. EMPLOYMENT CONTRACTS—Cont.
Elder abuse and dependent adult protection (See EL- Constructive discharge
DER ABUSE AND DEPENDENT ADULT CIVIL Public policy violation (See subhead: Public policy
PROTECTION ACT) violations)
Exempt or nonexempt status . . . 2720; 2721 Unspecified term contract, claim for breach of
Fair Employment and Housing Act (See FAIR EM- . . . 2401
PLOYMENT AND HOUSING ACT) Damages
Family Rights Act (See FAMILY RIGHTS ACT) Implied covenant of good faith and fair dealing,
Federal Employers’ Liability Act (See FEDERAL EM- breach of . . . 2406
PLOYERS’ LIABILITY ACT (FELA)) Wrongful termination
Economic damage . . . 3903P
Going-and-coming rule (See VICARIOUS LIABILITY)
General form of instruction on damages for
Harassment of employees (See FAIR EMPLOYMENT
. . . 2422
AND HOUSING ACT)
Mitigation of damages . . . 3963
Hiring, supervision or retention of employee, proof re- Unspecified term of employment (See subhead:
quired to establish liability for negligent . . . 426 Terminable at will)
Labor disputes (See LABOR DISPUTES) Defenses to wrongful termination
Military status, discrimination prohibited based on Fair Employment and Housing Act violations (See
. . . 2441 FAIR EMPLOYMENT AND HOUSING ACT)
Negligence (See NEGLIGENCE) Good cause defense
Overtime compensation (See WAGES) Instruction . . . 2421
Premises liability to independent contractor’s employee Verdict form . . . VF-2403
for unsafe conditions Good faith act not breaching implied covenant of
Concealed conditions . . . 1009A good faith and fair dealing . . . 2424
Defective equipment . . . 1009D Definition of good cause and unspecified term of em-
Retained control . . . 1009B ployment . . . 2404; 2405
Public employees (See PUBLIC EMPLOYEES) Demotion
Reimbursement of employee for expenses or losses, Generally (See subhead: Wrongful termination)
failure to make . . . 2750 Implied contract prohibiting demotion without good
Reporting time of employee, failure to pay . . . 2754 cause . . . 2403
Respondeat superior (See VICARIOUS LIABILITY) Specified term of employment (See subhead: Term of
Right-to-control test of employee status . . . 3704 employment)
Scope of employment (See SCOPE OF EMPLOY- Unspecified term of employment (See subhead: Ter-
MENT OR SCOPE OF AUTHORIZATION) minable at will)
Supervisor’s liability for employee’s misconduct result- Discharge (See subhead: Wrongful termination)
ing in constitutional injuries . . . 3005 Discrimination (See FAIR EMPLOYMENT AND
Tip pool conversion . . . 2752 HOUSING ACT)
Unfitness, liability for negligent hiring, supervision, or Fair dealing (See subhead: Implied covenant of good
retention after actual or constructive notice of faith and fair dealing)
. . . 426 Fair Employment and Housing Act (See FAIR EM-
Vacation time, failure to pay all vested . . . 2753 PLOYMENT AND HOUSING ACT)
Vicarious responsibility for employee’s wrongful con- Family Rights Act (See FAMILY RIGHTS ACT)
duct (See VICARIOUS LIABILITY) Federal Employers’ Liability Act (See FEDERAL EM-
Wages (See WAGES) PLOYERS’ LIABILITY ACT (FELA))
Whistleblower protection (See WHISTLEBLOWER FEHA (See FAIR EMPLOYMENT AND HOUSING
PROTECTION) ACT)
Workers’ compensation (See WORKERS’ COMPEN- FELA (See FEDERAL EMPLOYERS’ LIABILITY
SATION) ACT (FELA))
Workers’ Compensation insurance (See WORKERS’ Fraud
COMPENSATION) Solicitation of employee by misrepresentation
. . . 2710; VF-2704
EMPLOYMENT CONTRACTS Subsequent employment, misrepresentations made to
Bad faith (See subhead: Implied covenant of good faith prevent . . . 2711; VF-2705
and fair dealing) Verdict forms
California Fair Employment and Housing Act (See Solicitation of employee by misrepresentation
FAIR EMPLOYMENT AND HOUSING ACT) . . . VF-2704
California Family Rights Act (See FAMILY RIGHTS Subsequent employment, misrepresentations made
ACT) to prevent . . . VF-2705
CFEHA (See FAIR EMPLOYMENT AND HOUSING Good cause for termination
ACT) Defense to breach of specified term employment
CFRA (See FAMILY RIGHTS ACT) contract
Compensatory damages (See subhead: Damages) Instruction . . . 2421
I-27
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EMPLOY INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
EMPLOYMENT CONTRACTS—Cont. EMPLOYMENT CONTRACTS—Cont.
Good cause for termination—Cont. Relocate or change residence, employer’s inducement
Defense to breach of specified term employment for employee to . . . 2710; VF-2704
contract—Cont. Resignation, forced (See subhead: Constructive dis-
Verdict form . . . VF-2403 charge)
Definitions . . . 2404; 2405 Retaliation
Terminable at will employment (See subhead: Termi- Medical information to employer, retaliation for re-
nable at will) fusing to authorize disclosure of . . . 3071
Unspecified term of employment (See subhead: Ter- Whistleblower protection (See WHISTLEBLOWER
minable at will) PROTECTION)
Good faith (See subhead: Implied covenant of good Solicitation of employee by misrepresentation
faith and fair dealing) . . . 2710; VF-2704
Immigration-related practice, retaliatory unfair Specified term of employment (See subhead: Term of
. . . 2732 employment)
Implied contract prohibiting demotion without good Strike, misrepresentations about existence or nonexis-
cause . . . 2403 tence of pending . . . 2710; VF-2704
Implied covenant of good faith and fair dealing Terminable at will
Damages for breach . . . 2406 Constructive discharge from unspecified term em-
Defense to wrongful termination . . . 2424; VF- ployment, establishing
2405 Essential factual elements . . . 2401
Essential factual elements for establishing breach Verdict form . . . VF-2401
. . . 2423 Damages
Verdict forms General instruction on damages for wrongful dis-
Defense of good faith mistaken belief . . . VF- charge or demotion . . . 2406
2405 Mitigate damages, employee’s duty to . . . 3963
Definition of good cause and unspecified term of
General form . . . VF-2404
employment . . . 2404; 2405
Just cause for termination (See subhead: Good cause for
Essential factual elements for breach of contract
termination)
. . . 2401
Labor dispute, misrepresentations about existence or Good cause
nonexistence of pending . . . 2710; VF-2704 Defined . . . 2404; 2405
Length of service (See subhead: Term of employment) Implied covenant not to discharge without good
Lockout, misrepresentations about existence or nonexis- cause . . . 2403
tence of pending . . . 2710; VF-2704 Misconduct, definition of good cause to discharge
Medical information to employer, retaliation for refus- or demote for . . . 2405
ing to authorize disclosure of . . . 3071 Misconduct, definition of good cause to discharge or
Migrant workers solicited by misrepresentation demote for . . . 2405
. . . 2710; VF-2704 Presumption of at-will employment . . . 2400
Military status, discrimination prohibited based on Verdict forms
. . . 2441 Constructive discharge . . . VF-2401
Misrepresentation (See subhead: Fraud) General form . . . VF-2400
Mitigation of damages . . . 3963 Term of employment
Public policy violations “At will” employment (See subhead: Terminable at
California Fair Employment and Housing Act (See will)
FAIR EMPLOYMENT AND HOUSING ACT) Essential factual elements to establish breach of
Constructive discharge specified term contract . . . 2420
Damages for wrongful discharge . . . 3903P Good cause defense to action for breach of employ-
General instruction that plaintiff required to vio- ment contract
late public policy . . . 2431; VF-2407 Instruction . . . 2421
Intolerable working conditions in violation of Verdict form . . . VF-2403
public policy, plaintiff required to endure Unspecified term (See subhead: Terminable at will)
. . . 2432; VF-2408 Verdict forms
Damages for tort of wrongful discharge . . . 3903P General form . . . VF-2402
Essential factual elements for establishing wrongful Good cause defense to action for breach of em-
discharge or demotion . . . 2430 ployment contract . . . VF-2403
Fair Employment and Housing Act (See FAIR EM- Wrongful termination (See subhead: Wrongful termi-
PLOYMENT AND HOUSING ACT) nation)
Verdict forms Time (See subhead: Term of employment)
Constructive discharge in violation of public Tort actions (See subhead: Public policy violations)
policy . . . VF-2407; VF-2408 Unspecified term of employment (See subhead: Termi-
General form . . . VF-2406 nable at will)
I-28
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INDEX EVIDEN
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
EMPLOYMENT CONTRACTS—Cont. EQUITABLE INDEMNITY—Cont.
Verdict forms Implied contractual indemnity . . . 3801
Constructive discharge in violation of public policy
(See subhead: Public policy violations) ERRORS (See MISTAKES)
Defenses to wrongful termination (See subhead: De- ESCROW AGENTS
fenses to wrongful termination) Fiduciary duties of escrow holder, breach of . . . 4104
Fraud (See subhead: Fraud)
Implied covenant of good faith and fair dealing (See ESTATES
subhead: Implied covenant of good faith and fair Intentional interference with expected inheritance, tort
dealing) of . . . 2205
Public policy violations (See subhead: Public policy
ESTIMATES
violations)
Unlawful detainer, burden of proof for sufficiency and
Terminable at will
service of three-day notice to pay reasonable estimate
Constructive discharge . . . VF-2401 of amount of rent due in claim of . . . 4303
General form . . . VF-2400
Term of employment ETHNICITY, DISCRIMINATION BASED ON (See
General form . . . VF-2402 CIVIL RIGHTS, subhead: State law; DISCRIMINA-
Good cause defense to action for breach of em- TION)
ployment contract . . . VF-2403
Workers’ Compensation insurance (See WORKERS’ EVICTION
COMPENSATION) Unlawful detainer
Wrongful termination, defenses to (See subhead: De- Discriminatory eviction (Unruh Civil Rights Act),
fenses to wrongful termination) affirmative defense of . . . 4323
Whistleblower protection (See WHISTLEBLOWER Retaliatory eviction as affirmative defense against
PROTECTION) Legally protected activity, engaging in . . . 4322
Workers’ Compensation insurance (See WORKERS’ Tenant’s complaint regarding condition of prop-
COMPENSATION) erty, for . . . 4321
Wrongful termination EVIDENCE
Damages (See subhead: Damages) Admissibility of . . . 101
Defenses (See subhead: Defenses to wrongful termi- Admissions (See ADMISSIONS)
nation) After-acquired-evidence doctrine as employer’s defense
Discrimination claims under Fair Employment and to claim of wrongful discharge . . . 2506
Housing Act (See FAIR EMPLOYMENT AND Attorneys’ statements as non-evidence . . . 106; 5002
HOUSING ACT) Audio or video recording and transcription . . . 5018
Fair Employment and Housing Act violations (See Better evidence, party had power to produce . . . 203
FAIR EMPLOYMENT AND HOUSING ACT, Burden of proof (See BURDEN OF PROOF)
subhead: Discrimination) Child, testimony of . . . 224
Public policy violation (See subhead: Public policy Circumstantial evidence . . . 202
violations) Clear and convincing evidence standard (See BURDEN
Whistleblower protection (See WHISTLEBLOWER OF PROOF)
PROTECTION) Communication privilege, exercise of . . . 215
ENHANCED REMEDIES (See ELDER ABUSE AND Concealment of
DEPENDENT ADULT CIVIL PROTECTION ACT) Search without warrant, defense alleging reasonable-
ness of . . . 3024; 3026
ENTRY (See TRESPASS) Willful suppression of evidence . . . 204
Concluding instructions
EQUAL RIGHTS (See CIVIL RIGHTS, subhead: State Generally . . . 5002; 5003
law) Demonstrative evidence . . . 5020
EQUIPMENT Judge’s commenting on evidence . . . 5016
Common carrier’s duty to provide and maintain safe Reading back of testimony . . . 5011
. . . 903; 2901 Conferences at bench or in chambers . . . 114
Electric power lines and transmission equipment, stan- Conservatorship proceeding under Lanterman-Petris-
dard of care required for . . . 416 Short Act, sufficiency of indirect circumstantial evi-
Liability to employees of independent contractors for dence in . . . 4006
defective equipment . . . 1009D Credibility of expert testimony (See EXPERT OPIN-
IONS AND TESTIMONY)
EQUITABLE INDEMNITY Demonstrative evidence, concluding instructions on
Apportionment of responsibility among parties and non- . . . 5020
parties in original action . . . 406; VF-402 Deny or explain unfavorable evidence, failure to
General instruction when one tortfeasor seeks equitable . . . 205
indemnity from another tortfeasor . . . 3800 Depositions . . . 208
I-29
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EVIDEN INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
EVIDENCE—Cont. EVIDENCE—Cont.
Direct evidence . . . 202 Testimony—Cont.
Eminent domain proceedings (See EMINENT DO- Not to testify, exercise of right . . . 216
MAIN) Opinion testimony of lay witness . . . 223
Employee’s misconduct under FEHA, after-acquired Privilege, exercise of
evidence of . . . 2506 Communication privilege . . . 215
Exhibits admitted into evidence, concluding instruction Not to testify, right . . . 216
for . . . 5002 Settling party, witness as
Expert testimony (See EXPERT OPINIONS AND TES- Generally . . . 217
TIMONY) Sliding-scale settlement . . . 222
Fabricated evidence resulting in deprivation of rights, Willful suppression of evidence . . . 204
use of . . . 3052 Witnesses (See subhead: Testimony)
Failure to explain or deny unfavorable evidence
. . . 205 EXCESSIVE USE OF FORCE (See CIVIL RIGHTS)
Felony conviction of witness, prior . . . 211
EXCLUSIONS
Hypothetical questions . . . 220 Insurance policies (See INSURANCE; INSURER’S
Indirect evidence . . . 202 DUTY TO INDEMNIFY)
Insurance (See INSURANCE, subhead: Burden of Warranties, exclusion of (See PRODUCTS LIABILITY,
proof) subhead: Exclusion of warranties, defense of)
Interrogatories of a party . . . 209
Introductory instructions EXCLUSIVITY RULE, EXCEPTIONS TO (See
General introductory instructions . . . 101; 106 WORKERS’ COMPENSATION, subhead: Exceptions
Testimony (See subhead: Testimony) to exclusivity rule)
Judge’s commenting on evidence, concluding instruction
on . . . 5016 EXCULPATORY RELEASES
Lay witness, opinion testimony of . . . 223 Defense based on express assumption of risk . . . 451
Limited by purpose or party . . . 206; 207
EXCUSE OF VIOLATION (See NEGLIGENCE PER
Medical condition, use of statement of . . . 218 SE, subhead: Rebuttal of presumption of negligence)
Not to testify, exercise of right . . . 216
One party, evidence applicable to . . . 207 EXECUTIVE EXEMPTION
Opinion testimony of lay witness . . . 223 Overtime compensation, affirmative defense to nonpay-
Opposing party’s statement . . . 212 ment of . . . 2720
Party opponent’s statement . . . 212
Physician, statements made to . . . 218 EXEMPLARY DAMAGES (See PUNITIVE DAM-
Privilege, witness’s exercise of AGES)
Communication privilege . . . 215
EXEMPTIONS
Not to testify, right . . . 216 Emergency motor vehicle . . . 730
Products liability design defect case, burden of proof in Overtime compensation . . . 2720; 2721
. . . 1204
Reading back of testimony, concluding instructions on EXHIBITS
. . . 5011 Concluding instruction . . . 5002
Search warrant for (See CIVIL RIGHTS, subhead: Electronic format only, exhibits introduced in . . . 5021
Search and search warrant) Introductory instruction . . . 101
Settlement, evidence of
Generally . . . 217 EXPENSES (See also FEES)
Sliding-scale settlement . . . 222 Breach of contract, damages for (See BREACH OF
Stronger and more satisfactory evidence, party had CONTRACT, DAMAGES FOR)
power to produce . . . 203 Consumer goods under warranty, expenses for (See
Suppression of evidence, willful . . . 204 SONG-BEVERLY CONSUMER WARRANTY ACT)
Testimony Malicious prosecution, apportionment of fees and costs
Attorneys’ statements distinguished . . . 106; 5002 incurred in defending . . . 1530
Child . . . 224 Medical expenses (See MEDICAL EXPENSES)
Communication privilege, exercise of . . . 215 Performance, intentional interference with contractual
Concluding instructions relations by increasing expense of . . . 2201
Generally . . . 5002; 5003 Unfair Practices Act (See UNFAIR PRACTICES ACT,
Reading back of testimony in jury room subhead: Cost)
. . . 5011
EXPENSIVE ACCOMMODATION (See FAIR EM-
Depositions . . . 208 PLOYMENT AND HOUSING ACT, subhead: Undue
Expert testimony (See EXPERT OPINIONS AND hardship defense)
TESTIMONY)
Felony conviction of witness, prior . . . 211 EXPERT OPINIONS AND TESTIMONY
Lay witness, opinion testimony of . . . 223 Generally . . . 219
I-30
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INDEX FAIR E
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
EXPERT OPINIONS AND TESTIMONY—Cont. FAIR EMPLOYMENT AND HOUSING ACT—Cont.
Assumed facts, questions based on . . . 220 Bona fide occupational qualification (BFOQ) defense
Attorneys, expert testimony on standard of care for General instruction . . . 2501
. . . 600 Verdict form . . . VF-2501
Conflicting expert testimony . . . 221 Burden of proof (See subhead: Disability discrimina-
Emotional distress due to risk of cancer, HIV, or AIDS tion)
as confirmed by scientific opinion . . . 1601; 1622; Business judgment rule . . . 2513
1623 Business necessity/job relatedness defense (See sub-
Fraud where opinion represented as fact . . . 1904 head: Disparate impact discrimination)
Future damages for breach of contract, determining Cat’s paw rule . . . 2511
present cash value of . . . 359 Co-employees or co-workers
General instructions (See EVIDENCE) Defense of threat to health and safety of other work-
Hypothetical questions . . . 220
ers . . . 2544
Medical practitioners, expert testimony on standards of
Work environment harassment claim, co-worker as
care for (See MEDICAL MALPRACTICE)
defendant in . . . 2522A; 2522B; 2522C; VF-
Physician, statements made to . . . 218
Professional (nonmedical) practitioners, expert testi- 2507A–C
mony on standard of care for . . . 600 Constructive discharge
Seat belt, injuries resulting from failure to wear Age discrimination . . . 2570
. . . 712 Disability discrimination . . . 2540
Disparate treatment . . . 2500
EXPIRATION (See UNLAWFUL DETAINER) Elements to establish claim of . . . 2510
Religious creed discrimination . . . 2560
F Continuing violation, failure to file timely administrative
complaint when plaintiff alleges . . . 2508
FAIR EMPLOYMENT AND HOUSING ACT Creed (See subhead: Religious creed discrimination)
Abusive work environment (See subhead: Work envi- “Danger to self” defense to disability discrimination
ronment harassment) claim . . . 2544
Accessibility of job facilities (See subhead: Reasonable Defenses to claims
accommodation) After-acquired evidence defense . . . 2506
Accommodation, reasonable (See subhead: Reasonable Avoidable consequences not taken by plaintiff, affir-
accommodation) mative defense to work environment sexual ha-
Actual disability (See subhead: Disability discrimina- rassment claim based on . . . 2526
tion) Bona fide occupational qualification (See subhead:
Adverse employment action Bona fide occupational qualification (BFOQ) de-
Actions constituting . . . 2509 fense)
Age discrimination . . . 2570 Business necessity/job relatedness defense (See sub-
“At will” employment . . . 2513 head: Disparate impact discrimination)
Cat’s paw rule . . . 2511 Disability discrimination (See subhead: Disability
Causal connection to employee’s protected status discrimination)
. . . 2507 Failure to file timely administrative complaint when
Constructive discharge (See subhead: Constructive plaintiff alleges continuing violation . . . 2508
discharge) Mixed-motive (See subhead: Mixed-motive)
Decision maker without animus, adverse action taken Undue hardship defense (See subhead: Undue hard-
by . . . 2511 ship defense)
Disability discrimination . . . 2540 Definitions
Disparate treatment . . . 2500 Adverse employment action . . . 2509
Nondiscriminatory/nonretaliatory reason (See sub- Constructive discharge . . . 2510
head: Mixed-motive) Harassment (See subhead: Harassment)
Religious creed discrimination . . . 2560 Hostile work environment (See subhead: Work envi-
Retaliation (See subhead: Retaliation) ronment harassment)
Same decision (See subhead: Mixed-motive) Reasonable accommodation . . . 2542
Affirmative defenses (See subhead: Defenses to claims) Substantial motivating reason . . . 2507
After-acquired-evidence doctrine as defense to employ- Supervisor defined for harassment purposes
ee’s claim of wrongful discharge . . . 2506 . . . 2525
Age discrimination, essential factual elements for estab- Demotion
lishing claim of . . . 2570 Discrimination resulting in (See subhead: Discrimi-
Associational discrimination, disability-based . . . 2547 nation)
“At will” employment . . . 2513 Retaliatory discharge or demotion (See subhead: Re-
Avoidable consequences not taken by plaintiff, affirma- taliation)
tive defense to work environment sexual harassment Difficult accommodation (See subhead: Undue hardship
claim based on . . . 2526 defense)
I-31
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FAIR E INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FAIR EMPLOYMENT AND HOUSING ACT—Cont. FAIR EMPLOYMENT AND HOUSING ACT—Cont.
Disability discrimination Discriminatory intent—Cont.
Adverse employment action . . . 2509; 2540 Causal connection between protected status and ad-
Associational discrimination, disability-based verse action . . . 2507
. . . 2547 Disability discrimination, substantial motivating rea-
Burden of proof son element of . . . 2540
Reasonable accommodation . . . 2541 Disparate treatment, substantial motivating reason
Undue hardship . . . 2545 element of . . . 2500
Defenses Religious creed discrimination, substantial motivating
Essential job duties, inability to perform
reason element of . . . 2560
. . . 2543
Retaliation, substantial motivating reason element of
Health or safety risk . . . 2544
. . . 2505
Inability to perform essential job duties . . . 2543
Undue hardship defense . . . 2545; VF-2510 Substantial motivating reason explained . . . 2507
Disparate treatment Disparate impact discrimination
Essential factual elements for establishing claim Business necessity/job relatedness defense
. . . 2540 General instruction . . . 2503
Verdict form . . . VF-2508 Rebuttal to defense . . . 2504; VF-2503
Essential factual elements for establishing claim Essential factual elements for establishing claim
. . . 2540 . . . 2502
Essential job duties, factors and evidence considered Verdict forms
to determine . . . 2543 General form . . . VF-2502
Modification to housing unit, refusal to permit rea- Rebuttal to defense . . . VF-2503
sonable . . . 2549 Disparate treatment discrimination
Perceived disability or history of disability as basis Adverse employment action . . . 2500; 2509
for discrimination . . . 2540 Age discrimination, essential factual elements for
Reasonable accommodation establishing claim of . . . 2570
Defined . . . 2542 Bona fide occupational qualification defense
Essential factual elements for establishing claim General instruction . . . 2501
for failure to provide . . . 2541 Verdict form . . . VF-2501
Failure to engage in interactive process Disability discrimination
. . . 2546; VF-2513 Essential factual elements for establishing claim
Refusal to make reasonable accommodation or . . . 2540
permit reasonable modification in housing Verdict form . . . VF-2508
. . . 2548; 2549 Essential factual elements for establishing claim
Verdict forms . . . VF-2509; VF-2510; VF-2513 . . . 2500; 2540; 2570
Substantial motivating reason element . . . 2507; Substantial motivating reason element . . . 2500;
2540 2507
Unlawful detainer Verdict forms
Failure to provide reasonable accommodation as Bona fide occupational qualification defense
affirmative defense . . . 4329 . . . VF-2501
Proper denial of accommodation, claim of General form . . . VF-2500
. . . 4330 Expensive accommodation (See subhead: Undue hard-
Verdict forms ship defense)
Disparate treatment . . . VF-2508 Financial hardship (See subhead: Undue hardship de-
Failure to engage in interactive process . . . VF- fense)
2513 Good faith accommodation (See subhead: Reasonable
Reasonable accommodation . . . VF-2509; VF- accommodation)
2510 Handicapped persons, refusal to hire (See subhead: Dis-
Discharge, wrongful (See subhead: Discrimination) ability discrimination)
Discrimination Harassment
Disability discrimination (See subhead: Disability Definitions
discrimination) Harassing conduct . . . 2523
Disparate impact (See subhead: Disparate impact Supervisor defined for harassment purposes
discrimination) . . . 2525
Disparate treatment (See subhead: Disparate treat- Hostile work environment (See subhead: Work envi-
ment discrimination) ronment harassment)
Religious creed discrimination (See subhead: Reli- Sexual harassment (See subhead: Sexual harassment)
gious creed discrimination) Health or safety risk defense to disability discrimination
Discriminatory intent claim . . . 2544
Age discrimination, substantial motivating reason Hostile work environment harassment (See subhead:
element of . . . 2570 Work environment harassment)
I-32
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INDEX FAIR E
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FAIR EMPLOYMENT AND HOUSING ACT—Cont. FAIR EMPLOYMENT AND HOUSING ACT—Cont.
Job performance, actions reasonably likely to adversely Religious creed discrimination—Cont.
affect . . . 2509 Undue hardship defense to reasonable accommoda-
Job relatedness defense (See subhead: Disparate impact tion . . . 2561; VF-2512
discrimination) Verdict forms
Job restructuring (See subhead: Reasonable accommo- Failure to accommodate . . . VF-2511
dation) Undue hardship defense . . . VF-2512
Medical condition discrimination (See subhead: Disabil- Retaliation
ity discrimination) Employer actions constituting adverse employment
Mental disability (See subhead: Disability discrimina- action . . . 2509
tion) Essential factual elements to establish claim
. . . 2505
Misconduct by employee, after-acquired evidence of
Prevention of retaliation
. . . 2506
Essential factual elements of failure to prevent
Mixed-motive
retaliation . . . 2527
Limitation on remedies . . . 2512 Verdict form for failure to prevent retaliation
Pretext distinguished . . . 2512 . . . VF-2514
Verdict form . . . VF-2515 Substantial motivating reason element . . . 2505;
Nondiscriminatory/nonretaliatory reason (See subhead: 2507
Mixed-motive) Verdict forms
Nonemployee, failure to prevent sexual harassment by Failure to prevent retaliation . . . VF-2514
. . . 2528 General form . . . VF-2504
Offensive work environment (See subhead: Work envi- Without animus, adverse action taken by decision
ronment harassment) maker . . . 2511
Opportunity for advancement, actions reasonably likely Sabbath, observance of (See subhead: Religious creed
to adversely affect . . . 2509 discrimination)
Perceived disability (See subhead: Disability discrimina- Same decision (See subhead: Mixed-motive)
tion) Selection policies (See subhead: Disparate impact dis-
Physical disability (See subhead: Disability discrimina- crimination)
tion) Sexual harassment
Preventative measures by employers Avoidable consequences not taken by plaintiff, affir-
Factual elements of failure to prevent harassment, mative defense to work environment sexual ha-
discrimination, or retaliation . . . 2527 rassment claim based on . . . 2526
Verdict form for failure to prevent harassment, dis- Definition of harassing conduct . . . 2523
crimination, or retaliation . . . VF-2514 Hostile work environment (See subhead: Work envi-
Quid pro quo sexual harassment ronment harassment)
Essential factual elements for establishing harassment Nonemployee, failure to prevent sexual harassment
. . . 2520 by . . . 2528
Verdict form . . . VF-2505 Quid pro quo harassment (See subhead: Quid pro
Reasonable accommodation quo sexual harassment)
Defined . . . 2542 Substantial motivating reason
Disability discrimination (See subhead: Disability Discriminatory intent (See subhead: Discriminatory
discrimination) intent)
Religious creed or observance (See subhead: Reli- Mixed-motive (See subhead: Mixed-motive)
gious creed discrimination) Terms, conditions, or privileges of employment, conduct
Undue hardship (See subhead: Undue hardship de- that materially and adversely affects . . . 2509
fense) Threat to health and safety of other workers, defense of
Rebuttal of business necessity/job relatedness defense to . . . 2544
disparate impact discrimination claim . . . 2504; VF- Undue hardship defense
2503 Disability discrimination claim, defense to
Record of disability (See subhead: Disability discrimi- . . . 2545; VF-2510
nation) Religious creed discrimination, defense to claim of
Refusal to hire (See subhead: Discrimination) . . . 2561; VF-2512
Religious creed discrimination Verdict forms
Adverse employment action . . . 2509; 2560 Disability discrimination claim, defense to
Failure to accommodate, essential factual elements . . . VF-2510
for establishing . . . 2560; VF-2511 Religious creed discrimination, defense to claim
Reasonable accommodation of . . . VF-2512
Failure to accommodate, essential factual ele- Unlawful detainer
ments for establishing . . . 2560; VF-2511 Failure to provide reasonable accommodation as af-
Undue hardship defense to . . . 2561; VF-2512 firmative defense . . . 4329
Substantial motivating reason element . . . 2560 Proper denial of accommodation, claim of . . . 4330
I-33
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FAIR E INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FAIR EMPLOYMENT AND HOUSING ACT—Cont. FAIR MARKET VALUE—Cont.
Verdict forms Eminent domain proceedings (See EMINENT DO-
Disability discrimination (See subhead: Disability MAIN)
discrimination) Fraud, item of compensatory damages for (See
Disparate impact (See subhead: Disparate impact FRAUD)
discrimination)
FALSE ARREST (See FALSE IMPRISONMENT)
Disparate treatment (See subhead: Disparate treat-
ment discrimination) FALSE CLAIMS
Hostile work environment harassment (See subhead: Whistleblower protection . . . 4600; VF-4600
Work environment harassment)
Quid pro quo sexual harassment . . . VF-2505 FALSE IMPRISONMENT
Religious creed discrimination (See subhead: Reli- Affirmative defenses (See subhead: Defenses)
gious creed discrimination) Arrest
Retaliation against employee (See subhead: Retalia- Without warrant (See subhead: False arrest without
tion) warrant)
Undue hardship (See subhead: Undue hardship de- With warrant (See subhead: False arrest with war-
fense) rant)
Work environment harassment Business proprietor’s common-law right to detain for
Avoidable consequences not taken by plaintiff, affir- investigation . . . 1409
mative defense to work environment sexual ha- Citizen’s arrest (See subhead: False arrest without war-
rassment claim based on . . . 2526 rant)
Definitions Common-law right of business proprietor to detain for
Harassing conduct . . . 2523 investigation . . . 1409
“Severe or pervasive” conduct . . . 2524 Consent, absence of . . . 1400; 1407
Essential factual elements Defenses
Employer or entity as defendant . . . 2521A–C; Business proprietor’s common-law right to detain for
2527; VF-2506A–C investigation . . . 1409
Individual as defendant . . . 2522A–C; VF- Good-faith exception as peace officer’s defense to
2507A–C false arrest with warrant
Others, conduct directed at . . . 2521B; 2522B; Generally . . . 1406
VF-2506B; VF-2507B Verdict form . . . VF-1406
Plaintiff, conduct directed at . . . 2521A; 2522A; Lawful authority of police officer to detain
VF-2506A; VF-2507A Generally . . . 1408
Sexual favoritism, widespread . . . 2521C; Verdict form . . . VF-1401
2522C; VF-2506C; VF-2507C Probable cause to arrest
Prevention of harassment or discrimination Peace officer’s authority to arrest without warrant
Essential factual elements of failure of employer . . . 1402
or entity for . . . 2527 Private citizen’s authority to arrest without war-
Verdict form for failure to prevent harassment or rant . . . 1404
discrimination . . . VF-2514 Verdict forms
Quid pro quo sexual harassment distinguished Good-faith exception as peace officer’s defense to
. . . 2520 false arrest with warrant . . . VF-1406
Verdict forms Lawful authority of police officer to detain
Employer or entity as defendant . . . VF- . . . VF-1401
2506A–C Peace officer’s authority to arrest without warrant
Individual as defendant . . . VF-2507A–C based on probable cause to arrest . . . VF-
Others, conduct directed at . . . VF-2506B; VF- 1403
2507B Private citizen’s authority to arrest without war-
Plaintiff, conduct directed at . . . VF-2506A; rant based on probable cause to arrest . . . VF-
VF-2507A 1404
Prevent harassment or discrimination, failure to Delay in processing or releasing plaintiff, unnecessary
take reasonable steps to . . . VF-2514 Essential factual elements . . . 1407
Sexual favoritism, widespread . . . VF-2506C; Verdict form . . . VF-1407
VF-2507C Essential factual elements
Wrongful discharge (See subhead: Discrimination) Delay in processing or releasing plaintiff, unneces-
sary . . . 1407
FAIR MARKET VALUE False arrest without warrant (See subhead: False ar-
Breach of contract, damages for (See BREACH OF rest without warrant)
CONTRACT, DAMAGES FOR) False arrest with warrant . . . 1405
Condemnation (See EMINENT DOMAIN) No arrest involved . . . 1400
Conversion damages measured by . . . 2102 Factual elements, essential (See subhead: Essential fac-
Defined . . . 1923; 1924; 3501 tual elements)
I-34
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INDEX FAMILY
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FALSE IMPRISONMENT—Cont. FALSE IMPRISONMENT—Cont.
False arrest without warrant Unnecessary delay in processing or releasing plaintiff
Peace officer, arrest by Essential factual elements . . . 1407
Essential factual elements . . . 1401 Verdict form . . . VF-1407
Probable cause to arrest, affirmative defense of Verdict forms
. . . 1402 Defenses (See subhead: Defenses)
Verdict forms . . . VF-1402; VF-1403 False arrest without warrant
Private citizen, arrest by Peace officer, arrest by . . . VF-1402; VF-1403
Essential factual elements . . . 1403 Private citizen, arrest by . . . VF-1404
Probable cause to arrest, affirmative defense of False arrest with warrant
General form . . . VF-1405
. . . 1404
Good-faith exception for peace officer, affirmative
Verdict form . . . VF-1404
defense of . . . VF-1406
Verdict forms
No arrest involved
Peace officer, arrest by . . . VF-1402; VF-1403 General form . . . VF-1400
Private citizen, arrest by . . . VF-1404 Police officer’s lawful authority to detain for in-
False arrest with warrant vestigation, defense of . . . VF-1401
Essential factual elements . . . 1405 Unnecessary delay in processing or releasing plaintiff
Good-faith exception for peace officer, affirmative . . . VF-1407
defense of Warrant for arrest
Generally . . . 1406 Without warrant (See subhead: False arrest without
Verdict form . . . VF-1406 warrant)
Verdict forms With warrant (See subhead: False arrest with war-
General form . . . VF-1405 rant)
Good-faith exception for peace officer, affirmative Wrongful arrest
defense of . . . VF-1406 Without warrant (See subhead: False arrest without
Good-faith exception as defense to false arrest with warrant)
warrant With warrant (See subhead: False arrest with war-
Generally . . . 1406 rant)
Verdict form . . . VF-1406
Intent FALSE LIGHT (See INVASION OF PRIVACY, sub-
No arrest involved . . . 1400 head: False light claim)
Without warrant, false arrest intentionally caused by FAMILY CARE LEAVE (See FAMILY RIGHTS
private citizen . . . 1403 ACT)
With warrant, intentionally caused false arrest
. . . 1405 FAMILY RIGHTS ACT
Invalid warrant, false arrest with (See subhead: False Affirmative defenses (See subhead: Defenses)
arrest with warrant) Certification from health care provider (See subhead:
Investigation, defense of right to detain for (See sub- Defenses)
head: Defenses) Comparable job
No arrest involved Defined . . . 2603
Defense, police officer’s lawful authority to detain as Verdict form . . . VF-2600
Generally . . . 1408 Defenses
Verdict form . . . VF-1401 Ceased for other reasons, employer not required to
Essential factual elements . . . 1400 allow employee to return on ground that employ-
Verdict forms ment would have . . . 2612; VF-2601
General form . . . VF-1400 Certification
Police officer’s lawful authority to detain for in- Denial of leave on ground that health care provid-
vestigation, defense of . . . VF-1401 er’s certificate not provided . . . 2610
Peace officer Fitness to return to work, refusal to allow em-
Defense, police officer’s lawful authority to detain as ployee to return on ground that employee did
Generally . . . 1408 not provide statement of . . . 2611
Verdict form . . . VF-1401 Definitions
False arrest by Comparable job . . . 2603
Without warrant (See subhead: False arrest with- Family care and medical leave . . . 2600
out warrant) Eligibility for leave . . . 2601
With warrant (See subhead: False arrest with war- Essential factual elements for establishing violation of
rant) act . . . 2600; VF-2600
Police officer (See subhead: Peace officer) Notice of leave
Private citizen, arrest by (See subhead: False arrest Essential factual elements for establishing violation
without warrant) of act . . . 2600; VF-2600
Probable-cause defense (See subhead: Defenses) General instruction on reasonable notice . . . 2602
I-35
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FAMILY INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FAMILY RIGHTS ACT—Cont. FEDERAL EMPLOYERS’ LIABILITY ACT
Retaliation against employee for requesting leave (FELA)—Cont.
General instruction . . . 2620 Essential factual elements
Verdict form . . . VF-2602 Boiler Inspection Act cases . . . 2920
Return to work after leave (See subhead: Defenses) Federal Safety Appliance Act cases . . . 2920
Verdict forms General instruction on elements of FELA actions
Defense that employer not required to allow em- . . . 2900
ployee to return on ground that employment would Federal Safety Appliance Act violations
have ceased for other reasons . . . VF-2601 Causation . . . 2921
General form for violation of CFRA rights . . . VF- Essential factual elements . . . 2920
2600 Verdict form . . . VF-2901
Foreseeability
Retaliation against employee for requesting leave
Reasonable care standard . . . 2901
. . . VF-2602
Scope of employment, foreseeable conduct as within
FARMS AND FARMING (See CROPS) . . . 2926
Future damages for death of employee . . . 2942
FEDERAL CIVIL RIGHTS LAW (42 U.S.C. § 1983) Income tax effects of damages award . . . 2940
(See CIVIL RIGHTS) Interrogatory or verdict on limitation of FELA action,
special . . . 2922
FEDERAL EMPLOYERS’ LIABILITY ACT Introduction to damages for personal injury . . . 2941
(FELA) Limitation of FELA action, special verdict or interroga-
Agents, officers, or employees, responsibility for negli- tory on . . . 2922
gence of . . . 2901 Medical conditions and care
Assignment of employees, negligent . . . 2902 Assignment of employee to task for which not medi-
Assumption of risk, issue of . . . 2905 cally fit, negligent . . . 2902
Boiler Inspection Act violations Damages for death of employee including expense of
Causation . . . 2921 medical care and supplies . . . 2942
Essential factual elements . . . 2920 Minor’s loss of care due to death of rail employee,
Verdict form . . . VF-2901 damages for . . . 2942
Borrowed-servant status, establishment of . . . 2923 Negligence
Causation Assignment of employees, negligent . . . 2902
Boiler Inspection Act, causation under . . . 2921 Boiler Inspection Act violations, applicability to
Federal Safety Appliance Act, causation under . . . 2920
. . . 2921 Causation
Negligence (See subhead: Negligence) Comparative fault . . . 2904
Child’s loss of care due to death of rail employee, dam- General form of instruction . . . 2903
ages for . . . 2942 Comparative negligence (See subhead: Comparative
Common-carrier status of defendant, determination of negligence)
. . . 2925 Compliance with employer’s requests or directions,
Comparative negligence applicability where . . . 2905
Boiler Inspection Act claims, applicability to Duty of railroad to use reasonable care . . . 2901
. . . 2920 Essential factual element, negligence as . . . 2900
Compliance with employer’s requests or directions, Federal Safety Appliance Act violations, applicability
effect of . . . 2905 to . . . 2920
Federal Safety Appliance Act claims, applicability to Officers, agents, or employees, responsibility for neg-
. . . 2920 ligence of . . . 2901
General form of instruction . . . 2904 Reasonable care standard . . . 2901
Compensatory damages (See subhead: Damages) Verdict form . . . VF-2900
Compliance with employer’s requests or directions, ef- Officers, agents, or employees, responsibility for negli-
fect of . . . 2905 gence of . . . 2901
Contributory negligence (See subhead: Comparative Personal injury, introduction to damages for . . . 2941
negligence) Reasonable care standard . . . 2901
Damages Right-to-control test of employee status . . . 2923;
Death of employee, damages for . . . 2942 2924
Income tax effects of award . . . 2940 Scope of employment, party acting within
Introduction to damages for personal injury Generally . . . 2926
. . . 2941 Boiler Inspection Act violations . . . 2920
Dual-employee status, establishment of . . . 2923 Essential factual element of FELA action . . . 2900
Elements, essential factual (See subhead: Essential fac- Federal Safety Appliance Act violations . . . 2920
tual elements) Special verdict or interrogatory on limitation of FELA
Equipment, duty to provide and maintain safe action . . . 2922
. . . 2901 Standard of reasonable care . . . 2901
I-36
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INDEX FOREIG
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FEDERAL EMPLOYERS’ LIABILITY ACT FIDUCIARIES—Cont.
(FELA)—Cont. Essential factual elements of breach of fiduciary duty
Status as defendant’s employee, establishment of (See subhead: Breach of fiduciary duty)
. . . 2923; 2924 Explanation of fiduciary duty . . . 4100
Status of defendant as common carrier, establishment of Real estate brokers’ duty of disclosure to client
. . . 2925 . . . 4107
Statute of limitations, special verdict or interrogatory on Reasonable care, essential factual elements of breach for
. . . 2922 failure to use . . . 4101
Subservant company, establishing status of . . . 2924 Statute of limitations, affirmative defense to breach of
Tax effects of damages award . . . 2940 duty alleging lawsuit filed after . . . 4120
Verdicts Stockbrokers’ duties concerning speculative securities,
Forms breach of . . . 4105
Boiler Inspection Act violations . . . VF-2901 Undivided loyalty, essential factual elements of breach
Federal Safety Appliance Act violations . . . VF- of duty of . . . 4102
2901
Negligence of plaintiff . . . VF-2900 FINAL INSTRUCTIONS (See CONCLUDING IN-
Limitation of FELA action, special verdict or inter- STRUCTIONS)
rogatory on . . . 2922
FINANCIAL ABUSE (See ELDER ABUSE AND DE-
FEDERAL SAFETY APPLIANCE ACT (FSAA) (See PENDENT ADULT CIVIL PROTECTION ACT)
FEDERAL EMPLOYERS’ LIABILITY ACT
FINANCIAL HARM
(FELA), subhead: Federal Safety Appliance Act vio-
lations Contract action, economic duress as affirmative defense)
to . . . 333
FEES (See also EXPENSES) Employees, accommodation for (See FAIR EMPLOY-
Attorneys’ fees (See ATTORNEYS’ FEES) MENT AND HOUSING ACT)
Motor vehicle fees after breach of warranty, manufac- Foreclosure, wrongful (See FORECLOSURE, subhead:
turer’s restitution for . . . 3241 Wrongful foreclosure)
Premises liability where fee paid to use property for Sexual harassment resulting in economic loss or disad-
recreational purpose . . . 1010 vantage . . . 3065
Slander of title . . . 1730; VF-1720
FEHA (See FAIR EMPLOYMENT AND HOUSING Trade libel . . . 1731; VF-1721
ACT)
FIRE
FELA (See FEDERAL EMPLOYERS’ LIABILITY Assumption of the risk (firefighter’s rule), exceptions to
ACT (FELA)) nonliability under . . . 473
FIDUCIARIES Vehicle responding to fire alarm, definition of emer-
Affirmative defense to breach of duty alleging lawsuit gency including . . . 731
filed after statute of limitations . . . 4120 FIRST AMENDMENT RIGHTS
Attorneys (See ATTORNEYS) Invasion of privacy or use or appropriation of name or
Breach of fiduciary duty likeness, affirmative defense to . . . 1805; 1806
Constructive fraud . . . 4111 Retaliation for exercising constitutionally protected free
Escrow holder, duties of . . . 4104 speech rights, essential factual elements to establish
Essential factual elements . . . 3053
Confidentiality, duty of . . . 4103
Reasonable care, failure to use . . . 4101 FITNESS WARRANTY
Undivided loyalty, duty of . . . 4102 Consumer Warranty Act (See SONG-BEVERLY CON-
Explanation of fiduciary duty . . . 4100 SUMER WARRANTY ACT)
Real estate brokers’ duty of disclosure to client Products liability (See PRODUCTS LIABILITY, sub-
. . . 4107 head: Implied warranty)
Statute of limitations, affirmative defense alleging
lawsuit filed after . . . 4120 FOOD PRODUCTS
Stockbrokers’ duties concerning speculative securi- Implied warranty of merchantability for . . . 1233
ties . . . 4105 FORECLOSURE
Confidentiality, essential factual elements of breach of Wrongful foreclosure
duty of . . . 4103 Essential factual elements . . . 4920
Constructive fraud . . . 4111 Tender excused . . . 4921
Defense to breach of duty alleging lawsuit filed after
statute of limitations, affirmative . . . 4120 FOREIGN LANGUAGE
Elder abuse and dependent adult protection (See EL- Translation of non-English testimony, duty to abide by
DER ABUSE AND DEPENDENT ADULT CIVIL Concluding instruction . . . 5008
PROTECTION ACT, subhead: Financial abuse) Introductory instruction . . . 108
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FORESE INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FORESEEABILITY FRAUD—Cont.
Breach of contract, foreseeability of damages resulting Concealment—Cont.
from . . . 350 Nondisclosure of material facts by real estate seller
Common carriers (See COMMON CARRIERS; FED- or broker . . . 1910; 4109
ERAL EMPLOYERS’ LIABILITY ACT (FELA)) Reasonableness of reliance . . . 1908
Conversion, special injury or harm resulting from Reliance as element of claim . . . 1901; 1907
. . . 2102 Verdict form . . . VF-1901
Dangerous condition of public property (See DANGER- Workers’ Compensation exclusivity rule, fraudulent
OUS CONDITION OF PUBLIC PROPERTY) concealment of injury as exception to
FELA cases (See FEDERAL EMPLOYERS’ LIABIL- Generally . . . 2802
ITY ACT (FELA)) Verdict form . . . VF-2801
Medical malpractice (See MEDICAL MALPRACTICE) Constructive fraud
Negligence (See NEGLIGENCE) Breach of fiduciary duty . . . 4111
Products liability (See PRODUCTS LIABILITY) Fraudulent transfers (See FRAUDULENT TRANS-
Scope of employment, foreseeability of conduct as ele- FERS, subhead: Constructive fraudulent transfer)
ment of . . . 3720 Contracts
Affirmative defense to contract action, fraud as
FORMATION OF CONTRACTS (See CON-
. . . 335
TRACTS)
Employment contracts (See EMPLOYMENT CON-
FORMS, VERDICT (See VERDICTS) TRACTS)
Damages (See subhead: Compensatory damages)
FOURTEENTH AMENDMENT RIGHTS Defense to contract action, affirmative . . . 335
Pretrial detainee’s conditions of confinement and medi- Defined . . . 1701–1705; 3116
cal care in violation of . . . 3046 Elder abuse and dependent adult protection actions (See
FOURTH AMENDMENT RIGHTS (See CIVIL ELDER ABUSE AND DEPENDENT ADULT CIVIL
RIGHTS, subhead: Search and search warrant) PROTECTION ACT)
Emotional distress due to fear of cancer, HIV, or AIDS,
FRAUD fraudulent conduct causing . . . 1623
Benefit-of-the-bargain damages . . . 1924 Employment contracts (See EMPLOYMENT CON-
Buyer’s damages (See subhead: Compensatory dam- TRACTS)
ages) Expected inheritance, tort of intentional interference
Compensatory damages with . . . 2205
Benefit-of-the-bargain rule . . . 1924 Expert opinion considered as representation of fact
Buyer’s damages for purchase or acquisition of prop- . . . 1904
erty Fair market value as item of damages (See subhead:
General instructions . . . 1920 Compensatory damages)
Lost profits . . . 1921 False imprisonment by use of . . . 1400
Fair market value False promise
Benefit-of-the-bargain rule . . . 1924 Actual reliance . . . 1907
Out-of-pocket rule . . . 1923 Elements of claim . . . 1902
Sale and purchase . . . 1920; 1922 Reasonableness of reliance . . . 1908
Out-of-pocket rule . . . 1923 Verdict form . . . VF-1902
Prejudgment interest on . . . 3935 Insurance (See INSURANCE)
Reliance, recovery of damages for amounts spent in Intent
. . . 1920; 1922–1924 Concealment, intentional . . . 1901; 2308
Sale and purchase Elder/dependent adult abuse, intent to defraud in
Fair market value . . . 1920; 1922 . . . 3100–3102B
General instructions for buyer as plaintiff General form of instruction on . . . 3116
. . . 1920 Insured party’s intent to deceive . . . 2308; 2309
General instructions for seller as plaintiff Misrepresentation, intentional . . . 1900
. . . 1922 Promise without intention to perform (See subhead:
Lost profits of buyer . . . 1921 False promise)
Seller as plaintiff, general instructions for . . . 1922 Reliance, intended (See subhead: Reliance)
Computer Data And Access Fraud Act (CDAFA), Com- Verdict form . . . VF-1900
prehensive (See COMPREHENSIVE COMPUTER Interference with prospective economic relations
DATA AND ACCESS FRAUD ACT (CDAFA)) . . . 2202
Concealment Loss of profits, property buyer’s damages for . . . 1921
Elements of . . . 1901 Negligent misrepresentation
Emotional distress due to fear of cancer, HIV, or Elements of . . . 1903
AIDS, concealment of fact causing . . . 1623 Verdict form . . . VF-1903
Insurance (See INSURANCE) Opinion considered as representation of fact . . . 1904
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INDEX FRAUDU
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FRAUD—Cont. FRAUDULENT TRANSFERS—Cont.
Out-of-pocket rule for compensatory damages Constructive fraudulent transfer—Cont.
. . . 1923 Insolvency, general instruction of explanation of
Perform, promise without intention to (See subhead: . . . 4205
False promise) Presumption of insolvency, general instruction for
Profits lost due to fraud in sale of property, damages for . . . 4206
. . . 1921 Reasonably equivalent value not received . . . 4202
Promise Verdict forms
False promise Insolvency . . . VF-4202
Elements of claim . . . 1902 Reasonably equivalent value not received
Verdict form . . . VF-1902 . . . VF-4201
Reliance . . . 1907; 1908 Creditor under UVTA, essential factual elements of ac-
Property, damages for purchase or acquisition of (See tual intent to hinder, delay, or defraud . . . 4200
subhead: Compensatory damages) Good faith under UVTA, affirmative defense of
Punitive damages in defamation action . . . 1700–1705 . . . 4207; VF-4200
Real property
Insolvency of debtor
Damages for purchase or acquisition of (See sub-
Essential factual elements of establishing claim
head: Compensatory damages)
against insolvent debtor under UVTA . . . 4203
Nondisclosure of material facts by real estate seller
or broker . . . 1910; 4109 Explanation of insolvency . . . 4205
Reasonable reliance . . . 1908 Presumption of insolvency . . . 4206
Reliance Statute of limitations as affirmative defense
Buyer’s reliance on fraud in property sale Actual fraud . . . 4208
. . . 1920; 1921 Constructive fraud . . . 4208
Concealment, element of action for fraud based on Transfer defined . . . 4204
. . . 1901; 1907 Uniform Voidable Transactions Act (UVTA)
Contract action, reliance on fraudulent statement as Actual intent to hinder, delay, or defraud creditor
element of defense to . . . 335 . . . 4200; VF-4200
False promise, reliance on . . . 1907 Affirmative defense of good faith . . . 4207; VF-
General form of instruction . . . 1907 4200
Intended reliance Constructive fraudulent transfer (See subhead: Con-
False representation . . . 1900 structive fraudulent transfer)
Negligent misrepresentation . . . 1903 Determining actual intent to hinder, delay, or de-
Misrepresentation, reliance on . . . 1903; 1907 fraud, factors to consider in . . . 4201
Negligent misrepresentation, reliance on . . . 1903
Essential factual elements
Opinion relied on as representation of fact . . . 1904
Constructive fraudulent transfer . . . 4202
Reasonable reliance . . . 1908
Creditor, actual intent to hinder, delay, or defraud
Recovery of damages for amounts spent in
. . . 1920; 1922–1924 . . . 4200
Sale and purchase, reliance on fraud in Insolvent debtor, establishing claim against
. . . 1920–1924 . . . 4203
Sale and purchase of property (See subhead: Compensa- Good faith, affirmative defense of . . . 4207; VF-
tory damages) 4200
Statute of limitations, affirmative defense of . . . 1925 Insolvency
Third persons, misrepresentation to . . . 1906 Explanation of . . . 4205
Unfair Practices Act (See UNFAIR PRACTICES ACT) Presumption of . . . 4206
Uniform Voidable Transactions Act (UVTA) (See Verdict form . . . VF-4202
FRAUDULENT TRANSFERS) Statute of limitations, affirmative defense of
Verdict forms . . . 4208
Concealment . . . VF-1901 Transfer, explanation of . . . 4204
False promise . . . VF-1902 Verdict forms
Intentional misrepresentation . . . VF-1900 Actual intent to hinder, delay, or defraud creditor
Negligent misrepresentation . . . VF-1903 . . . VF-4200
Workers’ Compensation exclusivity rule, fraudulent con-
Constructive fraudulent transfer . . . VF-4201;
cealment of injury as exception to
VF-4202
Generally . . . 2802
Good faith, affirmative defense of . . . VF-4200
Verdict form . . . VF-2801
Insolvency . . . VF-4202
FRAUDULENT TRANSFERS
Constructive fraudulent transfer
Essential factual elements under UVTA . . . 4202;
4203
I-39
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FSAA INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
FSAA (FEDERAL SAFETY APPLIANCE ACT) (See GOODWILL (See EMINENT DOMAIN)
FEDERAL EMPLOYERS’ LIABILITY ACT
(FELA) GOVERNMENT CONTRACTOR DEFENSE)
Products liability arising from performance of federal
FUTURE DAMAGES procurement contracts . . . 1246; 1247
Breach of contract (See BREACH OF CONTRACT,
DAMAGES FOR) GRAHAM FACTORS
Death of rail employee . . . 2942 Excessive use of force in making arrest . . . 440; 3020
Tort damages (See TORT DAMAGES) GUESTS
Premises liability (See PREMISES LIABILITY)
G Social host liability for furnishing alcoholic beverages
to minors . . . 427
GENDER (See SEX AND GENDER)
GENERAL INSTRUCTIONS H
Concluding (See CONCLUDING INSTRUCTIONS)
Evidence (See EVIDENCE) HABITABILITY
Introductory (See INTRODUCTORY INSTRUCTIONS) Unlawful detainer proceedings, breach of implied war-
Unlawful detainer, introduction to . . . 4300 ranty of habitability in (See UNLAWFUL DE-
Verdict (See VERDICTS, subhead: Drafting, procedure, TAINER, subhead: Habitability, affirmative defense of
and general instructions) implied warranty of)
GENETIC IMPAIRMENT/DISABILITY (See MEDI- HANDICAPPED PERSONS (See DISABLED PER-
CAL MALPRACTICE) SONS)
GOING-AND-COMING RULE (See VICARIOUS HARASSMENT
LIABILITY) Educational institution, harassment in . . . 3069
GOOD CAUSE, DISCHARGE OF EMPLOYEE Fair Employment and Housing Act (See FAIR EM-
WITHOUT (See EMPLOYMENT CONTRACTS) PLOYMENT AND HOUSING ACT)
Sexual harassment (See SEXUAL HARASSMENT)
GOOD FAITH AND BAD FAITH
Employment contracts (See EMPLOYMENT CON- HAZARDS
TRACTS, subhead: Implied covenant of good faith Elder or dependent adult, failure to protect from hazards
and fair dealing) as neglect of . . . 3103
Fair Employment and Housing Act, good faith accom- Motor vehicles and highway safety (See MOTOR VE-
modation under (See FAIR EMPLOYMENT AND HICLES AND HIGHWAY SAFETY)
HOUSING ACT, subhead: Reasonable accommoda- Products liability (See PRODUCTS LIABILITY, sub-
tion) head: Warn, failure to)
False arrest with warrant, good-faith exception as de- Public property, dangerous condition of (See DANGER-
fense to (See FALSE IMPRISONMENT) OUS CONDITION OF PUBLIC PROPERTY)
Good Samaritan liability . . . 450B Trespass resulting from extrahazardous activities
Implied covenant of good faith and fair dealing Elements of claim . . . 2001
Elements of cause of action for breach of covenant Verdict form . . . VF-2002
of good faith and fair dealing . . . 325 Ultrahazardous activity
Employment contracts (See EMPLOYMENT CON- Essential elements of strict liability for . . . 460
TRACTS) Verdict form . . . VF-407
Insurance (See INSURANCE, subhead: Good faith HEALTH
and fair dealing) Disability discrimination claim under FEHA, health or
Verdict form . . . VF-303 safety-risk defense to . . . 2544
Insurance (See INSURANCE) Elder or dependent adult, neglect where failure to pro-
Intentional infliction of emotional distress, good-faith tect health of . . . 3103
belief that conduct was privileged as affirmative de- Emotional distress due to fear of cancer, HIV, or AIDS
fense to . . . 1605 (See EMOTIONAL DISTRESS)
Performance and breach (See PERFORMANCE AND Nuisance, harm to health as element of . . . 2020;
BREACH) 2021
Prison inmates and staff, use of force in good-faith ef- Standard of care for health care professionals . . . 501
fort to protect . . . 3042
Unfair Practices Act, good faith defined in context of HEALTH CARE PROVIDERS (See DENTISTS;
meeting competition defense under . . . 3335 PHYSICIANS; PSYCHOTHERAPISTS)
GOOD SAMARITAN LIABILITY HEIRS
Emergency, scene of . . . 450B Intentional interference with expected inheritance, tort
Nonemergency . . . 450A of . . . 2205
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INDEX INHERI
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
HIGHEST AND BEST USE OF PROPERTY (See IMPLIED COVENANT OF GOOD FAITH AND
EMINENT DOMAIN) FAIR DEALING
Elements of cause of action for breach of covenant of
HIGHWAY SAFETY (See MOTOR VEHICLES AND good faith and fair dealing . . . 325
HIGHWAY SAFETY) Employment contracts (See EMPLOYMENT CON-
HIV VIRUS (See EMOTIONAL DISTRESS, subhead: TRACTS)
Fear of cancer, HIV, or AIDS, conduct causing) Insurance (See INSURANCE, subhead: Good faith and
fair dealing)
HOMEOWNER BILL OF RIGHTS
Violation of, essential factual elements of claim of IMPLIED WARRANTIES
. . . 4910 Products liability (See PRODUCTS LIABILITY)
Unlawful detainer proceedings, breach of implied war-
HORIZONTAL RESTRAINTS (See CARTWRIGHT ranty of habitability in (See UNLAWFUL DE-
ACT) TAINER, subhead: Habitability, affirmative defense of
implied warranty of)
HOSPITALS (See MEDICAL MALPRACTICE)
IMPRISONMENT (See PRISONS AND PRISONERS)
HOSTILE WORK ENVIRONMENT HARASS-
MENT (See FAIR EMPLOYMENT AND HOUSING IMPROVEMENTS
ACT, subhead: Work environment harassment) Building contracts (See CONSTRUCTION CON-
TRACTS)
HOTELS
Condemned property, effect of improvements on value
Equal rights to accommodations, denial of . . . 3060
of . . . 3506
HOUSING (See FAIR EMPLOYMENT AND HOUS-
INCARCERATION (See PRISONS AND PRISON-
ING ACT)
ERS)
HUMAN TRAFFICKING
INCOME TAX
Unlawful detainer affirmative defense that tenant was
Damages award in FELA cases, income tax effects of
victim of . . . 4328
. . . 2940
HYPOTHETICAL QUESTIONS
INCOMPETENT PERSONS
Expert witnesses . . . 220
Medical negligence affecting incompetent patient (See
MEDICAL MALPRACTICE)
I Minors (See MINORS)
IDENTITY, APPROPRIATION OF (See INVASION INDEMNIFICATION
OF PRIVACY, subhead: Appropriation or use of Equitable indemnity (See EQUITABLE INDEMNITY)
name or likeness) Insurer’s duty to indemnify (See INSURER’S DUTY
TO INDEMNIFY)
IMMIGRATION
Retaliatory unfair immigration-related practices INDEPENDENT CONTRACTORS
. . . 2732 Negligent hiring of unfit or incompetent independent
contractor, liability for . . . 426
IMMUNITIES Nondelegable duty rule . . . 3713
Conspiracy defense based on agent/employee immunity Peculiar-risk doctrine applied to . . . 3708
rule . . . 3602 Premises liability to independent contractor’s employee
Design immunity related to public property in danger- for unsafe conditions
ous condition Concealed conditions . . . 1009A
Generally . . . 1123 Defective equipment . . . 1009D
Loss of . . . 1124 Retained control . . . 1009B
Inherently unsafe consumer product, affirmative defense Vicarious liability
from products liability claim for . . . 1248 Conduct of independent contractors . . . 3708
Malicious prosecution suit, public entities and employ- Nondelegable duty . . . 3713
ees’ immunity from . . . 1503 Wage action, claim that worker was not hiring entity’s
Premises liability, affirmative defense of recreation im- employee as defense in . . . 2705
munity from . . . 1010
INFRINGEMENT
IMPLIED AGREEMENTS Trade secrets (See TRADE SECRET MISAPPROPRIA-
Creation of implied-in-fact contract . . . 305 TION)
Employment demotion without good cause, implied
contract prohibiting . . . 2403 INHERITANCE
Quasi-contract or unjust enrichment, restitution from Intentional interference with expected inheritance, tort
transferee based on . . . 375 of . . . 2205
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INMATE INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
INMATES (See PRISONS AND PRISONERS) INSURANCE—Cont.
Bad faith—Cont.
IN PARI DELICTO (See CARTWRIGHT ACT)
Unreasonable failure to pay/delayed payment of ben-
INSPECTION efits
Boiler Inspection Act (BIA) (See FEDERAL EMPLOY- Essential factual elements . . . 2331
ERS’ LIABILITY ACT (FELA), subhead: Boiler In- General instruction . . . 2332
spection Act violations) Verdict form . . . VF-2301
Common carrier’s duty to inspect vehicles and equip- Verdict forms
Failure or delay in payment, breach of obligation
ment . . . 903
of good faith and fair dealing for unreasonable
Dangerous condition of public property, reasonable in-
. . . VF-2301
spection system for . . . 1104
Inform insured of rights, claim for breach of duty
Electric power lines and transmission equipment, stan-
to . . . VF-2303
dard of care required in inspecting . . . 416 Binder, elements of breach of . . . 2301
Premises liability (See PREMISES LIABILITY) Burden of proof
Product rental, inspection duty for . . . 1224 Exclusions (See subhead: Exclusions)
Real estate brokers or salespersons, inspection and dis- Lost or destroyed policy provisions, burden of prov-
closure duties of . . . 4108 ing loss within coverage of . . . 2305
INSTRUCTORS, ATHLETIC Predominant cause was covered risk or excluded
Elements to establish liability for injury to participant in risk, burden of proving . . . 2306
sport activity . . . 471; VF-404 Substantial prejudice . . . 2320; 2321
Concealment
INSURANCE Affirmative defense based on . . . 2309
Absence or presence of insurance, relevance of Affirmative defense of concealment in insurance ap-
. . . 105; 5001 plication . . . 2308
Advice-of-counsel defense to bad-faith claim . . . 2335 Concluding instruction on relevance of . . . 5001
Agency Conduct, factors to consider in evaluating insurer’s
Negligent failure of agent to obtain requested cover- . . . 2337
age, elements of . . . 2361 Costs of defense of uncovered claims, insurer’s claim
Relationship disputed . . . 2307 for reimbursement of . . . 2351
Application for policy Damages for bad faith . . . 2350
Concealment in application, affirmative defense Death
based on . . . 2308 Judgment creditor’s action against insurer to collect
Misrepresentations in application, affirmative defense for wrongful death . . . 2360
based on . . . 2308 Life insurance coverage, breach of contract for tem-
Temporary life insurance . . . 2302 porary . . . 2302
Attorneys Defend, duty to (See INSURER’S DUTY TO DE-
Advice-of-counsel defense to bad-faith claim FEND)
. . . 2335 Defenses
Fees (See subhead: Attorneys’ fees) Advice of counsel, reliance on . . . 2335
Attorneys’ fees Duty of insurer to defend (See INSURER’S DUTY
Bad faith, fees as damages for . . . 2350 TO DEFEND)
Uncovered claims, insurer’s claim for reimbursement Duty of insurer to indemnify (See INSURER’S
of fees for defense of . . . 2351 DUTY TO INDEMNIFY)
Bad faith Misrepresentation or concealment by insured, affir-
Advice of counsel, reliance on . . . 2335 mative defense of . . . 2309
Conduct, factors to consider in evaluating insurer’s Notice, insured’s failure to provide timely . . . 2320
. . . 2337 Policy exclusion, general instruction on affirmative
Damages for . . . 2350 defense of . . . 2303
Duty of insurer to defend (See INSURER’S DUTY Voluntary payment, affirmative defense of insured’s
TO DEFEND) . . . 2322
Failure or delay in payment, breach of obligation of Delay of insurer to pay or failure to pay, bad-faith
good faith and fair dealing for unreasonable claims involving unreasonable
Essential factual elements . . . 2331 Essential factual elements . . . 2331
General instruction . . . 2332 General instruction . . . 2332
Verdict form . . . VF-2301 Verdict form . . . VF-2301
Inform insured of rights, claim for breach of duty to Destroyed insurance policy, proof of coverage under
Essential factual elements . . . 2333 . . . 2305
Verdict form . . . VF-2303 Elements of claim (See subhead: Essential factual ele-
Investigation (See subhead: Investigation) ments of claim)
Reasonable settlement demand, insurer’s failure to Emotional distress, damages for . . . 2350
accept . . . 2334 Employees (See WORKERS’ COMPENSATION)
I-42
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INDEX INSURA
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
INSURANCE—Cont. INSURANCE—Cont.
Essential factual elements of claim Notice—Cont.
Bad faith claims (See subhead: Bad faith) Timely notice of claim, insured’s failure to give
Breach of contractual duty to pay covered claim . . . 2320
. . . 2300 Payment for loss
Failure or delay in payment, breach of obligation of Breach of contractual duty to pay covered claim
good faith and fair dealing for unreasonable Essential factual elements . . . 2300
. . . 2331 Verdict form . . . VF-2300
Judgment creditor’s action against insurer . . . 2360 Delay or failure to pay benefits, unreasonable
Negligent failure of agent to obtain coverage Essential factual elements . . . 2331
. . . 2361 General instruction . . . 2332
Verdict form . . . VF-2301
Refusal to accept reasonable settlement demand
Duty to indemnify insured (See INSURER’S DUTY
within policy limits . . . 2334
TO INDEMNIFY)
Temporary insurance (See subhead: Temporary insur-
Misrepresentation by insured, payment of claim
ance) based on . . . 2309
Exclusions Verdict forms
Exception to exclusion, burden of proving coverage Breach of contractual duty to pay covered claim
under . . . 2304 . . . VF-2300
General instruction on affirmative defense of policy Delay or failure to pay benefits, unreasonable
exclusion . . . 2303 . . . VF-2301
Indemnification of insured (See INSURER’S DUTY Predominant cause was covered risk or excluded risk,
TO INDEMNIFY) burden of proving . . . 2306
Predominant cause was covered risk or excluded Prejudice, burden of proving substantial . . . 2320;
risk, burden of proving . . . 2306 2321
Factual elements of claim (See subhead: Essential fac- Presence or absence of insurance, relevance of
tual elements of claim) . . . 105; 5001
Fraud Proof (See subhead: Burden of proof)
Concealment (See subhead: Concealment) Relevance of presence or absence of . . . 105; 5001
Intent of insured to deceive . . . 2308; 2309 Reliance
Termination of policy for fraudulent claim . . . 2309 Advice of counsel, defense alleging reliance on
Good faith and fair dealing . . . 2335
Bad faith (See subhead: Bad faith) Intent of insured that insurer rely on fraudulent claim
Conduct, factors to consider in evaluating insurer’s . . . 2309
. . . 2337 Salesperson (See subhead: Agency)
Damages for breach of implied covenant of good Settle, essential factual elements of breach of duty to
faith and fair dealing . . . 2350 . . . 2334
General instruction on implied obligation of Temporary insurance
. . . 2330 Binder, elements of breach of . . . 2301
Indemnify, duty to (See INSURER’S DUTY TO IN- Life insurance, elements of breach of contract for
DEMNIFY) temporary . . . 2302
Inform insured of rights, breach of duty to Termination of policy for fraudulent claim . . . 2309
Essential factual elements . . . 2333 Timely notice of claim, affirmative defense of insured’s
Verdict form . . . VF-2303 failure to give . . . 2320
Intent of insured to deceive . . . 2308; 2309 Uncovered claims, insurer’s claim for reimbursement of
Introductory instruction on relevance of presence or costs for defense of . . . 2351
absence of . . . 105 Unreasonable failure to pay/delayed payment of benefits
Investigation Essential factual elements . . . 2331
Failure to fairly and thoroughly investigate, bad-faith General instruction . . . 2332
claim for . . . 2332 Verdict form . . . VF-2301
False claim, investigation based on reliance on Verdict forms
. . . 2309 Breach of contractual duty to pay covered claim
Life insurance, elements of breach of contract for tem- . . . VF-2300
porary . . . 2302 Failure or delay in payment, breach of obligation of
Lost insurance policy, proof of coverage under good faith and fair dealing for unreasonable
. . . 2305 . . . VF-2301
Negligent failure of agent to obtain coverage, elements Inform insured of rights, breach of duty to . . . VF-
of . . . 2361 2303
Notice Voluntary payment, affirmative defense of insured’s
Bad-faith claims, notification of loss as element of . . . 2322
. . . 2331; 2332 Workers’ Compensation insurance (See WORKERS’
Required notification of loss . . . 2300; 2301 COMPENSATION)
I-43
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INSURE INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
INSURER’S DUTY TO DEFEND INSURER’S DUTY TO INDEMNIFY—Cont.
Advice-of-counsel defense to bad-faith claim . . . 2335 Good faith and fair dealing, general instruction on im-
Affirmative defenses (See subhead: Defenses) plied duty of . . . 2330
Attorney’s advice, defense alleging reliance on Judgment creditor’s action against insurer, essential fac-
. . . 2335 tual elements of . . . 2360
Bad faith Notice, insured’s failure to provide timely . . . 2320
Defense, advice of counsel as . . . 2335
General instruction on implied duty of good faith INTENT
and fair dealing . . . 2330 Abuse of process . . . 1520
Refusal to settle (See subhead: Settle, duty to) Aiding and abetting . . . 3610
Unreasonable failure to defend, essential factual ele- Assault and battery (See ASSAULT AND BATTERY)
ments of insurer’s . . . 2336 Civil rights violations, intent as element of (See CIVIL
Conduct, factors to consider in evaluating insurer’s RIGHTS)
. . . 2337 Conspiracy . . . 3600
Cooperate in defense, insured’s breach of duty to Conversion, intentionality of . . . 2100
. . . 2321 Discriminatory intent (See CIVIL RIGHTS; FAIR EM-
Defenses PLOYMENT AND HOUSING ACT)
Cooperate in defense, insured’s breach of duty to Emotional distress, infliction of (See EMOTIONAL
. . . 2321 DISTRESS)
Counsel’s advice as . . . 2335 False Claims Act, whistleblower protection provision of
Notice, insured’s failure to provide timely . . . 2320 . . . 4600; VF-4600
Failure to defend, essential factual elements of unrea- False imprisonment or false arrest (See FALSE IM-
sonable . . . 2336 PRISONMENT)
Notice, affirmative defense of insured’s failure to pro- Formation of contracts (See CONTRACTS, subhead:
Formation of contracts)
vide timely . . . 2320
Fraud, intentional (See FRAUD)
Prejudice resulting from insured’s failure to cooperate
General intent instruction for intentional torts . . . 1320
in defense . . . 2321
Insured party’s intent to deceive . . . 2308; 2309
Refusal to settle (See subhead: Settle, duty to)
Interference with economic relations (See INTERFER-
Settle, duty to ENCE WITH ECONOMIC RELATIONS)
Affirmative defense against payment of settlement Malice (See MALICE)
(See subhead: Defenses) Negligence (See NEGLIGENCE)
Essential factual elements of refusal to accept rea- Ostensible agent, intentionally implying actual agency
sonable settlement . . . 2334 of . . . 3709
Reasonable settlement demand defined . . . 2334 Performance (See PERFORMANCE AND BREACH)
Refusal to settle within policy limits Song-Beverly Consumer Warranty Act (See SONG-
Essential elements of insurer’s refusal to accept BEVERLY CONSUMER WARRANTY ACT)
reasonable settlement demand . . . 2334 Third party beneficiary as motivating purpose of con-
Excess judgment against insured, refusal to accept tract . . . 301
reasonable settlement demand resulting in Time for performance, intent of parties regarding rea-
. . . 2334 sonable . . . 319
Timely notice of claim, affirmative defense of insured’s Trespass (See TRESPASS)
failure to give . . . 2320 Warranties
Unreasonable failure to defend, essential factual ele- Consumer Warranty Act (See SONG-BEVERLY
ments of insurer’s . . . 2336 CONSUMER WARRANTY ACT)
INSURER’S DUTY TO INDEMNIFY Create warranty, intent to
Affirmative defenses Consumer-goods warranty under Song-Beverly
Timely notice, insured’s failure to provide . . . 2320 Act . . . 3200; 3201
Voluntary payment made by insured . . . 2322 Products liability cases . . . 1230
Burden of proof (See subhead: Exclusions) Willful acts (See WILLFUL ACTS)
Conduct, factors to consider in evaluating insurer’s INTENTIONAL INFLICTION OF EMOTIONAL
. . . 2337 DISTRESS (See EMOTIONAL DISTRESS)
Defense alleging insured’s failure to provide timely no-
tice . . . 2320 INTERFERENCE
Direct action by judgment creditor against insurer, ele- Civil rights, interference with (See CIVIL RIGHTS,
ments of . . . 2360 subhead: Bane Act, claims under)
Exclusions Conversion (See CONVERSION)
Exception to exclusion, burden of proving coverage Economic relations (See INTERFERENCE WITH ECO-
under . . . 2304 NOMIC RELATIONS)
General instruction on affirmative defense of policy Nuisance (See NUISANCE)
exclusion . . . 2303 Trespass to chattels . . . 2101
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INDEX INTERR
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
INTERFERENCE WITH ECONOMIC RELA- INTERFERENCE WITH ECONOMIC
TIONS RELATIONS—Cont.
Affirmative defense of privilege to protect own financial Intentional interference—Cont.
interest . . . 2210 Prospective economic relations
Burden of performance, interfering with contractual re- Elements of claim . . . 2202
lations by causing increase in . . . 2201 Verdict form . . . VF-2202
Contractual relations Verdict forms
Affirmative defense of privilege to protect own fi- Contractual relations . . . VF-2200; VF-2201
nancial interest . . . 2210 Prospective economic relations, intentional inter-
Elements of interference (See subhead: Elements of ference with . . . VF-2202
interference) Negligent interference with prospective economic rela-
Good faith and fair dealing, essential factual ele- tions
ments for breach of implied covenant of . . . 325 Generally . . . 2204
Increasing burden or expense of performance Verdict form . . . VF-2203
. . . 2201 Preventing performance on contract . . . 2201
Inducing breach of contract Prospective economic relations
Elements of claim . . . 2200 Intentional interference
Intent requirement . . . 2200; VF-2200 Elements of claim . . . 2202
Verdict form . . . VF-2200 Verdict form . . . VF-2202
Intentional interference with Negligent interference
Affirmative defense of privilege to protect own Generally . . . 2204
financial interest . . . 2210 Verdict form . . . VF-2203
Elements of claim . . . 2201 Verdict forms
Inducing breach of contract, intent requirement Intentional interference . . . VF-2202
for . . . 2200; VF-2200 Negligent interference . . . VF-2203
Verdict forms . . . VF-2200; VF-2201 Wrongful conduct, interference by . . . 2202; 2204
Prevention of performance . . . 2201 Protect own financial interest, affirmative defense of
Verdict forms privilege to . . . 2210
Inducing breach of contract . . . VF-2200 Verdict forms
Intentional interference with contractual relations Contractual relations
. . . VF-2200; VF-2201 Inducing breach . . . VF-2200
Elements of interference Intentional interference with . . . VF-2200; VF-
Contractual relations 2201
Inducement of third party to breach contract Prospective economic relations
. . . 2200 Intentional interference with . . . VF-2202
Intentional interference . . . 2201 Negligent interference with . . . VF-2203
Intentional interference with prospective economic Wrongful conduct, interference with prospective eco-
relations . . . 2202 nomic relations by . . . 2202; 2204
Negligent interference with prospective economic
relations . . . 2204 INTERPRETATION OF WRITTEN AGREEMENTS
Expected inheritance, tort of intentional interference Conduct, construction by . . . 318
with . . . 2205 Disputed words . . . 314
Expense of performance, interfering with contractual Drafter, construction against . . . 320
relations by causing increase in . . . 2201 Intention of parties . . . 314–316
Fraud as unlawful means of interference . . . 2202 Ordinary meaning of words . . . 315
Future economic advantage (See subhead: Prospective Reasonable time for performance . . . 319
economic relations) Technical language . . . 316
Implied contract (See subhead: Prospective economic Time for performance, reasonable . . . 319
relations) Uncertainty, construction against party that caused
Inducing breach of contract (See subhead: Contractual . . . 320
relations) Whole, construction of contract as a . . . 317
Intentional interference INTERPRETER, COURT-APPOINTED
Contractual relations Duty to abide by translation provided by
Affirmative defense of privilege to protect own Concluding instruction . . . 5008
financial interest . . . 2210 Introductory instruction . . . 108
Elements of claim . . . 2201
Inducing breach of contract, intent requirement INTERROGATORIES
for . . . 2200; VF-2200 General instruction on use of party interrogatories
Verdict forms . . . VF-2200; VF-2201 . . . 209
Expected inheritance, tort of intentional interference Special interrogatories and special verdicts (See VER-
with . . . 2205 DICTS)
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INTERS INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
INTERSTATE COMMERCE INTRODUCTORY INSTRUCTIONS—Cont.
Defined . . . 2900; 2920 Multiple parties . . . 103
FELA, FSAA, and BIA cases (See FEDERAL EM- News reports, preliminary admonition against attention
PLOYERS’ LIABILITY ACT (FELA)) to . . . 100
Non-person party . . . 104
INTOXICATION
Note-taking . . . 102
Driving under the influence . . . 709
Overview of trial . . . 101
Evidence of alcohol consumption, negligence involving
Parties
. . . 404
Multiple parties . . . 103
Minors, furnishing alcoholic beverages to
Non-person party . . . 104
Obviously intoxicated minors, providing alcoholic
Removal of claims or parties . . . 109
beverages to . . . 422; VF-406
Wealth of . . . 117
Social host liability . . . 427
Partnership as party . . . 104
Verdict form . . . VF-406
Personal injury in FELA cases, introduction to damages
Social host liability for furnishing alcoholic beverages
for . . . 2941
to minors . . . 427
Personal pronouns used to refer to parties, specification
Workers’ Compensation exclusivity rule, claim for in-
of . . . 118
jury caused by intoxicated co-employee as exception Preliminary admonitions . . . 100
to Public entity as party . . . 104
Generally . . . 2812 Questions from jurors . . . 112
Verdict form . . . VF-2805 Removal of claims or parties . . . 109
INTRODUCTORY INSTRUCTIONS Respondeat superior . . . 3700
Admonitions, preliminary . . . 100 Service provider for juror with disability, role of
Alternate juror . . . 111 . . . 110
Bench conferences and conferences in chambers Special verdict form, introduction to . . . 5012
. . . 114 Stipulations . . . 106
Bias of juror in favor of or against party or witness, Testimony
caution against . . . 107; 113 Generally (See EVIDENCE)
Class action defined . . . 115 Attorneys’ statements distinguished . . . 106
Common carriers General instruction on witnesses . . . 107
FELA cases, introduction to damages for personal Translation of non-English testimony, duty to abide
injury in . . . 2941 by . . . 108
General introductory instruction . . . 900 Tort damages, introduction to (See TORT DAMAGES)
Communication by and/or among jurors . . . 100; 110 Trade secret misappropriation . . . 4400
Conferences at bench or in chambers . . . 114 Translation of non-English testimony, duty to abide by
Contracts . . . 108
Breach of contract—Introduction . . . 300 Vicarious liability . . . 3700
Damages, introduction to contract . . . 350 Wealth of parties . . . 117
Corporation as party . . . 104 Witnesses (See subhead: Testimony)
Credibility of witnesses INTRUSION INTO PRIVATE AFFAIRS (See INVA-
Expert testimony (See EVIDENCE) SION OF PRIVACY)
General instruction . . . 107
Cross-complaint . . . 101 INVASION OF PRIVACY
Damages for personal injury in FELA cases, introduc- Appropriation or use of name or likeness
tion to . . . 2941 Comedy III Productions, Inc. case . . . 1805
Definitions of basic terms related to trial . . . 101 Damages . . . 1820; 1821
Deliberations . . . 100; 110 Elements of claims
Electronic communications and research prohibited Appropriation . . . 1803
. . . 116 General instruction for commercial use of name
Eminent domain . . . 3500 or likeness . . . 1804A
Entity as party . . . 104 News, public affairs, sports broadcast or political
Evidence (See EVIDENCE) campaign, use of name or likeness in connec-
Exhibits . . . 101 tion with . . . 1804B
FELA cases, introduction to damages for personal injury First Amendment, affirmative defense under
in . . . 2941 . . . 1805
Insurance, relevance of presence or absence of . . . 105 Verdict forms . . . VF-1803; VF-1804
Interpreter’s translation of non-English testimony, duty Comedy III Productions, Inc. on appropriation of name
to abide by . . . 108 or likeness . . . 1805
Investigation or research of case by jurors, admonition Compensatory damages . . . 1820; 1821
against . . . 100; 116 Confidential information, electronic recording of
Juror questioning of witnesses . . . 112 Elements of claim . . . 1809
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INDEX KIDNAP
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
INVASION OF PRIVACY—Cont. INVASION OF PRIVACY—Cont.
Confidential information, electronic recording of—Cont. Sexually explicit materials, unauthorized distribution of
Verdict form . . . VF-1807 private . . . 1810
Constitutional protections Use of name or likeness (See subhead: Appropriation or
First Amendment affirmative defenses use of name or likeness)
Balancing test . . . 1806 Verdict forms
Use or appropriation of name or likeness Appropriation or use of name or likeness . . . VF-
. . . 1805 1803; VF-1804
Justified by countervailing interests, invasion of pri- Confidential information, recording of . . . VF-1807
vacy . . . 1807 False light . . . VF-1802
Damages . . . 1820; 1821 Private affairs, intrusion into . . . VF-1800
Defenses
Public disclosure of private facts . . . VF-1801
First Amendment affirmative defenses
Invasion of privacy . . . 1806 INVENTORY (See EMINENT DOMAIN)
Use or appropriation of name or likeness
. . . 1805 INVESTIGATIONS
Justified by countervailing interests, invasion of pri- Admonition against investigation or research of case by
vacy . . . 1807 jurors . . . 100; 116; 5000
Distribution of private sexually explicit materials, unau- False imprisonment (See FALSE IMPRISONMENT,
thorized . . . 1810 subhead: Defenses)
Eavesdropping (See subhead: Confidential information, Insurance (See INSURANCE)
electronic recording of)
Electronic device recording confidential information INVITEES (See PREMISES LIABILITY, subhead:
(See subhead: Confidential information, electronic Guests and invitees)
recording of)
False light claim J
General instruction . . . 1802
Verdict form . . . VF-1802 JOB RELATEDNESS DEFENSE (See FAIR EM-
First Amendment, affirmative defense to use or appro- PLOYMENT AND HOUSING ACT, subhead: Dispa-
priation of name or likeness under . . . 1805 rate impact discrimination)
Highly offensive intrusion, factors for determining
. . . 1800 JOB RESTRUCTURING (See FAIR EMPLOYMENT
Identity, appropriation of (See subhead: Appropriation AND HOUSING ACT, subhead: Reasonable accom-
or use of name or likeness) modation)
Intrusion into private affairs
Elements of . . . 1800 JOINT LIABILITY
Verdict form . . . VF-1800 Special employee, joint liability for conduct of
Justified by countervailing interests, affirmative defense . . . 3707
that invasion of privacy . . . 1807
Likeness, appropriation of (See subhead: Appropriation JOINT PARTICIPANTS TO TORT (See CON-
or use of name or likeness) SPIRACY)
Name, appropriation of (See subhead: Appropriation or
JOINT TORTFEASORS
use of name or likeness)
Offensive, invasion as highly Comparative negligence (See COMPARATIVE NEGLI-
False light (See subhead: False light claim) GENCE)
Intrusion (See subhead: Intrusion into private affairs) Equitable indemnity (See EQUITABLE INDEMNITY)
Public disclosure of private facts (See subhead: Pub-
JOINT VENTURES
lication)
Vicarious liability for wrongful conduct of member
Photograph, appropriation of (See subhead: Appropria-
. . . 3712
tion or use of name or likeness)
Publication JUROR QUESTIONING OF WITNESSES
Damages . . . 1820 Concluding instruction . . . 5019
False light created by . . . 1802 Introductory instruction . . . 112
Private facts, public disclosure of
Damages . . . 1820 JUST COMPENSATION (See EMINENT DOMAIN)
Elements of claim . . . 1801
Verdict form . . . VF-1801 K
Public disclosure of private facts (See subhead: Publica-
tion)
KIDNAPPING (See ELDER ABUSE AND DEPEN-
Reasonable expectation of privacy . . . 1800
DENT ADULT CIVIL PROTECTION ACT, subhead:
Recording confidential information (See subhead: Confi-
Abduction)
dential information, electronic recording of)
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KNOWLE INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
KNOWLEDGE LANTERMAN-PETRIS-SHORT ACT—Cont.
Civil rights violations, knowledge as factor in (See Indirect circumstantial evidence, sufficiency of
CIVIL RIGHTS) . . . 4006
Condemned property, public knowledge causing change Issues not to be considered . . . 4004
in value of . . . 3504 Mental disorder, explanation of . . . 4001
Conspiracy . . . 3600 Minors (See subhead: Gravely disabled)
Elder abuse and dependent adult protection claims,
Physical restraint, effect of . . . 4009
knowledge as element of (See ELDER ABUSE AND
Proof beyond reasonable doubt, obligation for
DEPENDENT ADULT CIVIL PROTECTION ACT)
. . . 4005
Emotional distress involving fear of known risk of can-
Third party assistance (See subhead: Gravely disabled)
cer, HIV, or AIDS . . . 1601
FELA claim for latent or progressive injury, discovery Verdict form . . . VF-4000
rule in . . . 2922 Voting, disqualification from . . . 4013
Fitness warranty, knowledge of buyer’s particular pur-
LAW ENFORCEMENT AGENCIES AND OFFI-
pose bearing on applicability of . . . 3211
CERS
Foreseeability (See FORESEEABILITY)
Battery by law enforcement officer
Misrepresentation, knowledge as factor in reasonable
Deadly force
reliance on . . . 1908
Premises liability (See PREMISES LIABILITY) Generally . . . 1305B
Verdict form . . . VF-1303B
L Nondeadly force
Generally . . . 1305A
LABOR DISPUTES Verdict form . . . VF-1303A
Civil rights violation by violent acts or threats of vio- Civil rights violations (See CIVIL RIGHTS)
lence Deadly force, negligent use by peace officer of
Essential factual elements . . . 441
Actual acts of violence . . . 3063 Excessive use of force
Threats of violence . . . 3064 Battery by peace officer (See subhead: Battery by
Verdict form . . . VF-3033 peace officer)
Misrepresentations to prospective employees about exis- Civil rights violations arising from (See CIVIL
tence or nonexistence of pending . . . 2710; VF- RIGHTS)
2704 Negligence claim arising from . . . 440
False imprisonment (See FALSE IMPRISONMENT,
LANDLORD AND TENANT
subhead: Peace officer)
Leases (See LEASES)
Premises liability (See PREMISES LIABILITY) Misuse of authority by peace officer, vicarious liability
Unlawful detainer (See UNLAWFUL DETAINER) for . . . 3721
Negligence
LANGUAGE Deadly force by peace officer, negligent use of
Translation of non-English testimony, duty to abide by . . . 441
Concluding instruction . . . 5008 Unreasonable use of force by officer in arrest or
Introductory instruction . . . 108 other seizure, negligence claim arising from
. . . 440
LANTERMAN-PETRIS-SHORT ACT Psychotherapist’s duty to protect intended victim from
Concluding instruction on grave disablement . . . 4012 patient’s threat
Essential factual elements for claim of conservatorship Generally . . . 503A
due to grave disablement . . . 4000 Affirmative defense of reasonable efforts to commu-
Gravely disabled nicate threat to victim and law enforcement
Concluding instruction . . . 4012 agency . . . 503B
Essential factual elements for claim of conservator- Scope of employment, when peace officer’s conduct is
ship due to respondent being . . . 4000 within . . . 3721
Explanation of . . . 4002 Unreasonable use of force (See subhead: Excessive use
History of disorder, relevancy of . . . 4011 of force)
Indirect circumstantial evidence, sufficiency of
. . . 4006 LEASES
Minors, use of third party assistance by . . . 4008 Bonus value of leasehold interest taken under eminent
Physical restraint, effect of . . . 4009 domain power, determination of . . . 3508
Proof beyond reasonable doubt, obligation for Breach of contract to construct improvements on real
. . . 4005 property, owner’s/lessee’s action for . . . 354
Third party assistance Breach of warranty on leased consumer goods (See
Effect of using . . . 4007 SONG-BEVERLY CONSUMER WARRANTY ACT)
Minor’s use of . . . 4008 Eminent domain taking, determination of bonus value of
Voting, disqualification from . . . 4013 leasehold interest subject to . . . 3508
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INDEX MALICI
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
LEASES—Cont. M
Nuisance, lease of property as element of private
. . . 2021 MALICE
Premises liability (See PREMISES LIABILITY) Defamation action
Products liability for rented or leased product (See Prerequisite for punitive damages in . . . 1700–1705
PRODUCTS LIABILITY) Privileges for communications made without malice
Residential rental or lease agreements, termination of (See DEFAMATION, subhead: Privileges)
(See UNLAWFUL DETAINER) Defined . . . 1701–1705; 3114
Trespass, lease of property as element of Despicable conduct
. . . 2000–2002 Generally . . . 3114
Unlawful detainer (See UNLAWFUL DETAINER) Defamation . . . 1701–1705
Warranty on leased consumer goods, breach of (See Emotional distress due to fear of cancer, HIV, or
SONG-BEVERLY CONSUMER WARRANTY ACT) AIDS, despicable conduct causing . . . 1623
Trespass to timber . . . 2003
LEGAL MALPRACTICE (See ATTORNEYS)
Elder abuse and dependent adult protection actions (See
LIBEL (See DEFAMATION) ELDER ABUSE AND DEPENDENT ADULT CIVIL
PROTECTION ACT)
LICENSES Emotional distress due to fear of cancer, HIV, or AIDS,
Driver’s license application of minor, liability of co- malicious conduct causing
signer of Generally . . . 1623
Generally . . . 723 Verdict form . . . VF-1606
Verdict form . . . VF-703 Prejudgment interest, award of . . . 3935
Motor vehicle license fees after breach of warranty, Prisoner, civil rights violation where malicious use of
manufacturer’s restitution for . . . 3241 force against
Generally . . . 3042
LIFE EXPECTANCY
Verdict form . . . VF-3020
Tort damages, determination of life expectancy for cal-
Prosecution (See MALICIOUS PROSECUTION)
culation of . . . 3932
Trade secret misappropriation . . . 4411
LIFE INSURANCE Trespass to timber, despicable conduct in . . . 2003
Breach of contract for temporary life insurance, ele- Unlawful detainer, recovery of statutory damages on
ments of . . . 2302 showing of malice by defendant in claim for
. . . 4341
LIMITATION OF ACTIONS (See STATUTE OF
MALICIOUS PROSECUTION
LIMITATIONS)
Abuse of process distinguished . . . 1520
LOANS Administrative proceedings, wrongful use of
Defective product, negligence for loan of . . . 1224 General form of instruction . . . 1502
Motor vehicle finance charges after breach of warranty, Immunity of public entities and employees
manufacturer’s restitution for . . . 3241 . . . 1503
Reliance on counsel, affirmative defense of
LOCALITY DISCRIMINATION (See UNFAIR . . . 1510
PRACTICES ACT) Verdict form . . . VF-1503
Affirmative defenses
LOCATION Public entities employee acting within scope of em-
Definition of geographic market . . . 3414 ployment . . . 1503
Unfair Practices Act, locality discrimination under (See Reliance (See subhead: Reliance)
UNFAIR PRACTICES ACT) Apportionment of attorney fees and costs between
proper and improper claims . . . 1530
LOSSES Attorney’s or district attorney’s advice, defense of reli-
Damages (See DAMAGES) ance on . . . 1510
Eminent domain taking (See EMINENT DOMAIN) Civil proceedings, wrongful use of
Insurance against (See INSURANCE) Elements of claim . . . 1501
Profits (See PROFITS, LOSS OF) Immunity of public entities and employees
Sexual harassment resulting in economic loss or disad- . . . 1503
vantage . . . 3065 Information provided by client, affirmative defense
of attorney’s reliance on . . . 1511
LOSS LEADER ACTIVITIES (See UNFAIR PRAC- Reliance on counsel, affirmative defense of
TICES ACT) Generally . . . 1510
Verdict form . . . VF-1502
LPS (See LANTERMAN-PETRIS-SHORT ACT)
Verdict forms
General form . . . VF-1501
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MALICI INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
MALICIOUS PROSECUTION—Cont. MEASURE OF DAMAGES (See DAMAGES)
Civil proceedings, wrongful use of—Cont.
MEDIA
Verdict forms—Cont.
Attention to news reports, preliminary admonition
Reliance on counsel, affirmative defense of
against . . . 100
. . . VF-1502
Defamatory statement, news publication or broadcaster’s
Criminal proceedings, former
retraction of . . . 1709
“Actively involved” explained . . . 1504
Final instruction on discharge of jury . . . 5090
Elements of claim for wrongfully caused criminal
Invasion of privacy (See INVASION OF PRIVACY)
proceeding . . . 1500
Reliance on counsel, affirmative defense of MEDICAL CONDITIONS AND CARE
. . . 1510 Cancer (See CANCER)
Verdict form . . . VF-1500 Civil rights (See CIVIL RIGHTS)
Defenses Disabled persons (See DISABLED PERSONS)
Public entities employee acting within scope of em- Discrimination based on medical condition (See DIS-
ployment . . . 1503 ABLED PERSONS)
Reliance (See subhead: Reliance) Elder or dependent adult, neglect where failure to pro-
Immunity of public entities and employees . . . 1503 vide medical care for . . . 3103
Investigate information provided by client, attorney gen- Emotional distress (See EMOTIONAL DISTRESS, sub-
erally has no obligation to . . . 1511 head: Fear of cancer, HIV, or AIDS, conduct causing)
Probable cause (See subhead: Reasonable grounds) Evidence, use of statement of medical condition as
Public entities and employees’ immunity from suit for . . . 218
. . . 1503 FELA claims (See FEDERAL EMPLOYERS’ LIABIL-
Reasonable grounds ITY ACT (FELA))
Administrative proceedings . . . 1502; 1510 Malpractice, medical (See MEDICAL MALPRACTICE)
Civil proceedings . . . 1501; 1510 Tort damages for aggravation of preexisting medical
Criminal proceedings . . . 1500; 1510 condition . . . 3927
Defense of reliance on counsel . . . 1510
Reliance on counsel as affirmative defense MEDICAL EXPENSES
. . . 1510 FELA damages claim for death of employee including
Reliance medical expenses . . . 2942
Counsel, affirmative defense of reliance on Genetic impairment/disability, medical expenses for
. . . 1510; VF-1502 (See MEDICAL MALPRACTICE)
Information provided by client, affirmative defense Tort damages, recovery of medical expenses as eco-
of attorney’s reliance on . . . 1511 nomic element of . . . 3903A
Verdict forms MEDICAL LEAVE (See FAMILY RIGHTS ACT)
Administrative proceedings, wrongful use of
. . . VF-1503 MEDICAL MALPRACTICE
Civil proceedings, wrongful use of Abandonment of patient . . . 509
General form . . . VF-1501 Affirmative defenses
Reliance on counsel, affirmative defense of Duty of patient to provide for own well-being
. . . VF-1502 . . . 517
Criminal proceedings, former . . . VF-1500 Emergency as affirmative defense
Wrongful use of proceedings Generally . . . 554
Administrative (See subhead: Administrative pro- Verdict form . . . VF-502
ceedings, wrongful use of) Informed consent or informed refusal
Civil (See subhead: Civil proceedings, wrongful use Emergency . . . 554
of) Emotional state of patient . . . 553
Simple procedure . . . 552
MALPRACTICE (See PROFESSIONAL MALPRAC- Verdict form . . . VF-501
TICE) Waiver . . . 551
MANAGEMENT Would have consented, defense claiming patient
Definition of managing agent . . . 3102A; 3102B . . . 550; VF-501
Elder abuse and dependent adult protection claims (See Would have refused, claim that patient . . . 550
ELDER ABUSE AND DEPENDENT ADULT CIVIL Psychotherapist’s reasonable efforts to communicate
PROTECTION ACT, subhead: Employer defendants) patient’s threat to victim and law enforcement
agency . . . 503B
MANUFACTURING Statute of limitations
Cost (See UNFAIR PRACTICES ACT) One-year limit . . . 555
Products liability (See PRODUCTS LIABILITY) Three-year limit . . . 556
Warranties (See SONG-BEVERLY CONSUMER WAR- Verdict forms
RANTY ACT) Emergency as affirmative defense . . . VF-502
I-50
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INDEX MEDICA
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
MEDICAL MALPRACTICE—Cont. MEDICAL MALPRACTICE—Cont.
Affirmative defenses—Cont. Genetic impairment/disability
Verdict forms—Cont. Expenses resulting from
Would have consented, defense claiming patient Wrongful birth . . . 512
. . . VF-501 Wrongful life . . . 513
Would have consented, defense claiming patient Failure to perform or advise of appropriate tests that
Generally . . . 550 would have disclosed risk of birth with genetic
Verdict form . . . VF-501 impairment/disablility . . . 513
Wrongful birth after failure to perform appropriate
Alternative methods of care, practitioner’s choice of
genetic counseling and testing . . . 512
. . . 506
Wrongful life, essential factual elements of . . . 513
Assistants, surgeon’s derivative liability for negligence
Hospitals, duty of
of . . . 510 General instruction . . . 514
Battery, medical . . . 530A Safe environment, duty to provide . . . 515
Birth of unplanned child, medical negligence claim for Screen medical staff, duty to . . . 516
(See WRONGFUL BIRTH) Incompetent patient
Condition of patient a danger to others, duty to warn Consent on behalf of (See subhead: Consent)
patient that . . . 507 Minors (See subhead: Minors)
Consent Refusal on behalf of (See subhead: Informed refusal)
Authorized person’s consent on behalf of another Informed consent
. . . 531 Affirmative defenses (See subhead: Affirmative de-
Battery claim fenses)
Absence of or informed consent to medical proce- Defined . . . 532
dure . . . 530A Failure to obtain informed consent, essential ele-
Conditions of consent ignored . . . 530B ments of . . . 533
Informed consent (See subhead: Informed consent) Verdict forms
Informed refusal (See subhead: Informed refusal) Emergency as affirmative defense . . . VF-502
Plaintiff would have consented if informed, affir-
Refusal of (See subhead: Informed refusal)
mative defense of . . . VF-501
Withdrawal of practitioner from care, patient’s con-
Informed refusal
sent to . . . 509
Affirmative defenses (See subhead: Affirmative de-
Defenses (See subhead: Affirmative defenses) fenses)
Dentists, standard of care for . . . 501; 502 Defined . . . 534
Derivative liability of surgeons . . . 510 Failure to inform patient about risks of nontreatment,
Disabled persons (See subhead: Genetic essential elements of . . . 535
impairment/disability) Minors
Elements, essential factual (See subhead: Essential fac- Consent to medical procedure on behalf of (See sub-
tual elements) head: Consent)
Emergency as affirmative defense Refusal on behalf of (See subhead: Informed refusal)
Generally . . . 554 Wrongful birth (See WRONGFUL BIRTH)
Verdict form . . . VF-502 Nonspecialist health care professionals, standard of care
Emotional state of patient, affirmative defense based on for . . . 501
. . . 553 Notice, abandonment of patient with insufficient
Error, role of reasonable . . . 505 . . . 509
Essential factual elements Nurses
General instructions . . . 400; 500 Standard of care for . . . 504
Informed consent, failure to obtain . . . 533 Surgeon’s derivative liability for negligence of
Risks of nontreatment, failure to inform patient of . . . 510
. . . 535 Patient’s duty to provide for own well-being, defense of
Wrongful birth (See WRONGFUL BIRTH) . . . 517
Wrongful life . . . 513 Psychotherapist’s duty to protect intended victim from
Expenses (See subhead: Genetic impairment/disability) patient’s threat
Expert testimony (See subhead: Standard of care) Generally . . . 503A
Factual elements, essential (See subhead: Essential fac- Affirmative defense of reasonable efforts to commu-
tual elements) nicate threat to victim and law enforcement
Foreseeability agency . . . 503B
Hospital’s duty to provide safe environment Refer to specialist, duty to . . . 508
. . . 515 Refusal of medical procedure (See subhead: Informed
Informed consent (See subhead: Informed consent) refusal)
Informed refusal (See subhead: Informed refusal) Res ipsa loquitur . . . 518
Warn of foreseeable harm, practitioner’s duty to (See Risks of nontreatment, failure to inform patient about
subhead: Warn, duty to) . . . 535
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MEDICA INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
MEDICAL MALPRACTICE—Cont. MERCHANTABILITY, WARRANTY OF
Safe environment, hospital’s duty to provide . . . 515 Consumer Warranty Act (See SONG-BEVERLY CON-
Screen medical staff, hospital’s duty to . . . 516 SUMER WARRANTY ACT, subhead: Implied war-
Simple procedure, affirmative defense claiming ranties of fitness and merchantability)
. . . 552 Products liability (See PRODUCTS LIABILITY, sub-
Specialists head: Implied warranty)
Refer to specialist, duty to . . . 508
MERCHANTS (See BUSINESS ESTABLISHMENTS)
Standard of care for medical specialists . . . 502
Standard of care MIGRANT WORKERS
Health care professionals, nonspecialist . . . 501 Solicitation of workers by misrepresentations regarding
Hospitals (See subhead: Hospitals, duty of) employment . . . 2710; VF-2704
Nurses . . . 504
Res ipsa loquitur doctrine, cases involving . . . 518 MILITARY CONTRACTOR DEFENSE
Specialists . . . 502 Products liability arising from performance of federal
Success procurement contracts . . . 1246; 1247
Duty to explain likelihood of . . . 532
MILITARY STATUS
Nonrequirement of . . . 505
Employment discrimination prohibited based on
Surgeons
. . . 2441
Derivative liability of . . . 510
Specialists, standard of care for . . . 502 MINIMUM WAGE (See WAGES)
Standard of care . . . 501; 502
Testing, negligent genetic (See subhead: Genetic MINORS
impairment/disability) Alcoholic beverages furnished to minors, negligence
Third persons claim for
Consent by authorized person on behalf of another Obviously intoxicated minors, providing alcoholic
. . . 531 beverages to . . . 422; VF-406
Warn of harm to or by third party, duty to (See sub- Social host liability . . . 427
head: Warn, duty to) Verdict form . . . VF-406
Verdict forms Birth of unplanned child, medical negligence claim for
General form . . . VF-500 (See WRONGFUL BIRTH)
Informed consent Common carriers
Emergency as affirmative defense . . . VF-502 Damages for child’s loss of care due to death of rail
Plaintiff would have consented if informed, affir- employee . . . 2942
mative defense of . . . VF-501 Duty toward minor passengers . . . 905
Waiver as affirmative defense . . . 551 Conservatorship under Lanterman-Petris-Short Act (See
Warn, duty to LANTERMAN-PETRIS-SHORT Act, subhead:
Condition of patient a danger to others, duty to warn Gravely disabled)
patient that . . . 507 Damages
Genetically impaired child, negligent failure to warn Loss of care due to death of rail employee, damages
of birth of . . . 512; 513 for . . . 2942
Psychotherapist’s duty to protect intended victim Wrongful death of minor child, parent’s recovery of
from patient’s threat tort damages for
Generally . . . 503A General instruction . . . 3922
Affirmative defense of reasonable efforts to com- Verdict form . . . VF-3906
municate threat to victim and law enforcement Duty of care owed children . . . 412; 905
agency . . . 503B Lanterman-Petris-Short Act conservatorship (See
Withdrawal from care of patient with insufficient notice LANTERMAN-PETRIS-SHORT ACT)
. . . 509 Loss of care due to death of rail employee, damages for
Wrongful birth (See WRONGFUL BIRTH) . . . 2942
Wrongful life, essential factual elements of . . . 513 Medical negligence (See MEDICAL MALPRACTICE)
MEDICAL NEGLIGENCE (See MEDICAL MAL- Motor vehicles (See MOTOR VEHICLES AND HIGH-
PRACTICE) WAY SAFETY)
Negligence
MEETING COMPETITION DEFENSE (See UN- Alcoholic beverages provided to minors
FAIR PRACTICES ACT) Obviously intoxicated minors, providing alcoholic
beverages to . . . 422; VF-406
MENACE Social host liability . . . 427
False imprisonment by use of . . . 1400 Verdict form . . . VF-406
MENTAL DISABILITY (See DISABLED PERSONS) Common carrier’s duty toward minor passengers
. . . 905
MENTAL DISTRESS (See EMOTIONAL DISTRESS) Duty of care owed children . . . 412; 905
I-52
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INDEX MOTOR
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
MINORS—Cont. MISREPRESENTATION (See FRAUD)
Negligence—Cont.
MISTAKES
Medical negligence (See MEDICAL MALPRAC-
Bilateral mistake as affirmative defense to contract ac-
TICE)
tion . . . 331
Motor vehicles (See MOTOR VEHICLES AND
Consent obtained by mistake, invalidity of . . . 1303
HIGHWAY SAFETY)
Medical negligence, role of reasonable error in
Parental liability for negligent supervision of minor
. . . 505
Generally . . . 428
Trade secret misappropriation (See TRADE SECRET
Verdict form . . . VF-411
MISAPPROPRIATION)
Per se negligence, excuse of violation by minor as
Trespass by person mistaken about right to enter prop-
basis for rebuttal of presumption of . . . 421
erty . . . 2004
Standard of care
Unilateral mistake as affirmative defense to contract
Common carrier’s duty toward minor passengers
action . . . 330; VF-301
. . . 905
Duty of care owed children . . . 412; 905 MISUSE OF LEGAL PROCESS (See PROCESS,
General standard of care required of minors MISUSE OF)
. . . 402
Verdict forms MITIGATION OF DAMAGES (See DAMAGES)
Alcohol sales to obviously intoxicated minor MIXED MOTIVE
. . . VF-406 Fair Employment and Housing Act (See FAIR EM-
Motor vehicle, adult’s liability for permissive use PLOYMENT AND HOUSING ACT)
of . . . VF-700 Whistleblower protection . . . 4602; VF-4601; VF-
Parental liability for negligent supervision of mi- 4602
nor . . . VF-411
Wrongful death of minor child, parent’s recovery MODELS
of tort damages for . . . VF-3906 Express warranty, model of goods as . . . 3200
Wrongful birth (See WRONGFUL BIRTH)
MODIFICATION
Wrongful death of minor child, parent’s recovery of
Contract modification . . . 313
tort damages for
Express warranty, modification as affirmative defense to
General instruction . . . 3922
. . . 1241
Verdict form . . . VF-3906
Sidewalk, premises liability for altered . . . 1008
Negligence per se, excuse of violation by minor as basis
for rebuttal of presumption of . . . 421 MONEY
Passengers on common carrier, duty toward minor Breach of contract to pay money, damages for . . . 355
. . . 905 Counts (See COMMON COUNTS)
Removal of child from parental custody without war- Wealth of parties . . . 117
rant, unlawful . . . 3051
Social host liability for furnishing alcoholic beverages MONOPOLIES (See UNFAIR PRACTICES ACT)
to minors . . . 427
MONTH-TO-MONTH TENANCY (See UNLAWFUL
Standard of care (See subhead: Negligence)
DETAINER, subhead: Thirty- or sixty-day notice)
Testimony of child . . . 224
Tort damages for death of minor child, parent’s recov- MOTIVE
ery of . . . 3922; VF-3906 Unlawful detainer, retaliatory motive as defense against
Verdict forms (See subhead: Negligence) . . . 4321
Wrongful birth (See WRONGFUL BIRTH)
MOTOR VEHICLES AND HIGHWAY SAFETY
Wrongful death of minor child, parent’s recovery of tort
Affirmative defense of use beyond scope of permission
damages for
Generally . . . 721
General instruction . . . 3922
Verdict form . . . VF-701
Verdict form . . . VF-3906
Alcohol, driving under the influence of . . . 709
MISAPPROPRIATION OF TRADE SECRETS (See Basic speed law . . . 706
TRADE SECRET MISAPPROPRIATION) Basic standard of care . . . 700
Common carrier’s duty regarding vehicles and equip-
MISCONDUCT ment . . . 903
Fair Employment and Housing Act, after-acquired evi- Consent (See subhead: Permissive use of vehicle)
dence of employee’s misconduct under . . . 2506 Crosswalk, relative duties of care for pedestrians and
Good cause to discharge or demote employee for mis- drivers in . . . 710
conduct, definition of . . . 2405 Dangerous condition of public property, claims involv-
ing (See DANGEROUS CONDITION OF PUBLIC
PROPERTY)
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MOTOR INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
MOTOR VEHICLES AND HIGHWAY SAFETY— MOTOR VEHICLES AND HIGHWAY
Cont. SAFETY—Cont.
Defense (See subhead: Affirmative defense of use be- Negligent entrustment of motor vehicle—Cont.
yond scope of permission) Verdict form . . . VF-704
Driver’s license application of minor, liability of co- Owner liability (See subhead: Permissive use of ve-
signer of hicle)
Generally . . . 723 Passenger’s duty of care for own safety . . . 711
Verdict form . . . VF-703 Pedestrians and drivers in crosswalk, relative duties of
Driving under the influence . . . 709 care for . . . 710
Drugs, driving under the influence of . . . 709
Permissive use of vehicle
Duty of care (See subhead: Standard of care)
Affirmative defense of use beyond scope of permis-
Emergencies
sion
Defined . . . 731
Exemption for emergency vehicle . . . 730 Generally . . . 721
Exemption for emergency vehicle . . . 730 Verdict form . . . VF-701
Going-and-coming rule (See VICARIOUS LIABILITY) General instruction . . . 720
Hazard Implied permission to use vehicle . . . 720
Immediate hazard defined . . . 703 Minor’s permissive use, adult’s liability for
Left turns . . . 704 Generally . . . 722
Immediate hazard defined . . . 703 Verdict form . . . VF-702
Insurance, generally (See INSURANCE) Verdict forms
Left turns . . . 704 Affirmative defense of use beyond scope of per-
Maximum speed limit . . . 708 mission . . . VF-701
Minors General form . . . VF-700
Alcoholic beverages furnished to minors Minor’s permissive use, adult’s liability for
Obviously intoxicated minors, providing alcoholic . . . VF-702
beverages to . . . 422; VF-406 Railroad crossings (See RAILROAD CROSSINGS)
Social host liability . . . 427 Right-of-way
Driver’s license application of minor, liability of co-
Defined . . . 701
signer of
Waiver of . . . 702
Generally . . . 723
Seat belt, failure to wear . . . 712
Verdict form . . . VF-703
Permissive use of vehicle, adult’s liability for Speed law, basic . . . 706
Generally . . . 722 Speed limit . . . 707; 708
Verdict form . . . VF-702 Standard of care
Verdict forms Basic standard of care . . . 700
Alcoholic beverages furnished to obviously in- Passenger’s duty of care for own safety . . . 711
toxicated minors . . . VF-406 Relative duties of care for pedestrians and drivers in
Driver’s license application of minor, liability of crosswalk . . . 710
cosigner of . . . VF-703 Turning . . . 704; 705
Permissive use of vehicle, adult’s liability for Verdict forms
. . . VF-702 Affirmative defense of use beyond scope of permis-
Moving to right or left . . . 705 sion . . . VF-701
Negligence Minors (See subhead: Minors)
Applicability of negligence instructions . . . 700 Negligent entrustment of motor vehicle . . . VF-704
Basic standard of care . . . 700 Permissive use of vehicle (See subhead: Permissive
Minors (See subhead: Minors) use of vehicle)
Negligent entrustment (See subhead: Negligent en-
Waiver of right-of-way . . . 702
trustment of motor vehicle)
Warranty (See SONG-BEVERLY CONSUMER WAR-
Permissive use of vehicle (See subhead: Permissive
RANTY ACT)
use of vehicle)
Seat belt, failure to wear . . . 712 MULTIPLE CLAIMS, CAUSES OF ACTION, OR
Speed law, violation of basic . . . 706 COUNTS
Speed limit . . . 707 Instruction on damages . . . 3934
Negligence per se
Verdict form for damages . . . VF-3920
Applicability of negligence per se instructions
. . . 701 MULTIPLE TORTFEASORS
Driving under the influence . . . 709 Comparative negligence (See COMPARATIVE NEGLI-
Maximum speed limit . . . 708 GENCE)
Right-of-way, case involving . . . 701 Indemnification on comparative fault basis (See EQUI-
Negligent entrustment of motor vehicle TABLE INDEMNITY)
General instruction . . . 724
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INDEX NEGLIG
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
MUNICIPALITY, LIABILITY OF (See CIVIL NEGLIGENCE—Cont.
RIGHTS) Defined—Cont.
Gross negligence . . . 425
N Dependent adult or elder, neglect of (See ELDER
ABUSE AND DEPENDENT ADULT CIVIL PRO-
NAME, APPROPRIATION OF (See INVASION OF TECTION ACT)
PRIVACY) Disabled persons
Genetic impairment/disability (See MEDICAL MAL-
NARCOTICS (See DRUGS) PRACTICE)
Standard of care (See DISABLED PERSONS)
NATIONAL ORIGIN, DISCRIMINATION BASED
Discovery, delayed
ON (See CIVIL RIGHTS, subhead: State law; DIS- Statute of limitations and caused by wrongful con-
CRIMINATION) duct, harm occurring before . . . 455
NEGLECT, CUSTODIAL (See ELDER ABUSE AND Verdict form . . . VF-410
DEPENDENT ADULT CIVIL PROTECTION ACT) Dog bite statute
Essential elements of strict liability under . . . 463
NEGLIGENCE Verdict form . . . VF-409
Alcohol (See INTOXICATION) Domestic animal with dangerous propensities
Alternative causation . . . 434 Essential elements of strict liability for injury caused
Animals, injury caused by (See subhead: Strict liability) by . . . 462
Asbestos-related cancer claims, causation for . . . 435 Verdict form . . . VF-408
Assumption of risk (See ASSUMPTION OF RISK) Drug consumption (See DRUGS)
Basic standard of care . . . 401 Elder or dependent adult, neglect of (See ELDER
Cancer claims, causation for asbestos-related . . . 435 ABUSE AND DEPENDENT ADULT CIVIL PRO-
Causation TECTION ACT)
Alternative causation . . . 434 Electric power, amount of caution required in transmit-
Asbestos-related cancer claims . . . 435 ting . . . 416
FELA claims (See FEDERAL EMPLOYERS’ LI- Elements, essential factual (See subhead: Essential fac-
ABILITY ACT (FELA)) tual elements)
Multiple causes . . . 431 Emergencies
Per se negligence where causation only at issue Good Samaritans . . . 450B
. . . 419 Medical negligence claim, defense to (See MEDI-
Substantial factor in causation, definition of . . . 430 CAL MALPRACTICE)
Superseding cause (See subhead: Superseding cause) Motor vehicles (See MOTOR VEHICLES AND
Children (See MINORS) HIGHWAY SAFETY)
Common carriers (See COMMON CARRIERS; FED- Rescue . . . 453; 731
ERAL EMPLOYERS’ LIABILITY ACT (FELA)) Sudden emergency . . . 452
Comparative negligence (See COMPARATIVE NEGLI- Emotional distress, negligent infliction of (See EMO-
GENCE) TIONAL DISTRESS)
Contributory negligence (See COMPARATIVE NEGLI- Employers and employees
GENCE) Dangerous condition of public property, employee’s
Criminal conduct negligence creating . . . 1100
Premises liability of business proprietor or property Dangerous situations, employee required to work in
owner for criminal conduct of others . . . 1005 . . . 415
Superseding cause, intentional criminal act as Elder or dependent adult, claims for neglect of (See
. . . 433 ELDER ABUSE AND DEPENDENT ADULT
Customs or practices, consideration of . . . 413 CIVIL PROTECTION ACT, subhead: Neglect)
Dangerous activities or situations Hiring, supervision or retention of employee, proof
Electric power, amount of caution required in trans- required to establish liability for negligent
mitting . . . 416 . . . 426
Emergencies (See subhead: Emergencies) Motor vehicle, implied permission to use
Employee required to work in . . . 415 Generally . . . 720
General instruction on amount of caution required in Verdict form . . . VF-700
. . . 414 Premises liability to independent contractor’s em-
Primary assumption of risk . . . 470 ployee for unsafe conditions
Strict liability (See subhead: Strict liability) Concealed conditions . . . 1009A
Dangerous propensities, domestic animal with (See sub- Defective equipment . . . 1009D
head: Domestic animal with dangerous propensities) Retained control . . . 1009B
Deadly force, negligent use by peace officer of Vicarious responsibility for employee’s wrongful
. . . 441 conduct (See VICARIOUS LIABILITY)
Defined Equipment (See EQUIPMENT)
Generally . . . 401 Equitable indemnity (See EQUITABLE INDEMNITY)
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NEGLIG INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
NEGLIGENCE—Cont. NEGLIGENCE—Cont.
Essential factual elements Law enforcement officers—Cont.
Attorney’s breach of fiduciary duty . . . 4106 Unreasonable force by law enforcement officer in
Comparative fault of plaintiff . . . 405 arrest or other seizure . . . 440
Elder or dependent adult, neglect of . . . 3103 Medical negligence (See MEDICAL MALPRACTICE)
Emotional distress, negligent infliction of (See EMO- Minors (See MINORS)
TIONAL DISTRESS) Misrepresentation, negligent . . . 1903
General instruction . . . 400 Motor vehicles and highway safety (See MOTOR VE-
Insurance agent’s negligent failure to obtain coverage HICLES AND HIGHWAY SAFETY)
. . . 2361
Multiple causes . . . 431
Medical malpractice (See MEDICAL MALPRAC-
Negligent undertaking . . . 450C
TICE)
Not contested negligence, essential factual elements in
Not contested negligence, establishing claim against
defendant’s . . . 424 establishing claim against defendant’s . . . 424
Premises liability (See PREMISES LIABILITY) Peace officers (See subhead: Law enforcement officers)
Products liability (See PRODUCTS LIABILITY) Per se (See NEGLIGENCE PER SE)
Professional malpractice (nonmedical) . . . 400; 500 Premises liability (See PREMISES LIABILITY)
Strict liability (See subhead: Strict liability) Products liability (See PRODUCTS LIABILITY)
Wrongful birth (See WRONGFUL BIRTH) Professional negligence (See MEDICAL MALPRAC-
Exculpatory releases . . . 451 TICE; PROFESSIONAL MALPRACTICE)
Express assumption of risk . . . 451 Public entities (See PUBLIC ENTITIES)
Factual elements, essential (See subhead: Essential fac- Railroad crossings (See RAILROAD CROSSINGS)
tual elements) Reasonable person standard (See subhead: Standard of
FELA claims (See FEDERAL EMPLOYERS’ LIABIL- care)
ITY ACT (FELA)) Recreational and sporting activities (See RECRE-
Foreseeability ATIONAL AND SPORTING ACTIVITIES)
Common carriers (See COMMON CARRIERS) Reliance
Good conduct of others, reliance on . . . 411 Good conduct of others, reliance on . . . 411
Intentional tort/criminal act as superseding cause,
Good Samaritans . . . 450A
unforeseeable . . . 433
Rescue . . . 453; 731
Medical malpractice (See MEDICAL MALPRAC-
Res ipsa loquitur
TICE)
Premises liability of business proprietor or property General instruction . . . 417
owner able to anticipate criminal conduct of others Medical negligence . . . 518
. . . 1005 Sexual transmission of disease, negligent . . . 429
Products liability (See PRODUCTS LIABILITY) Sporting activities (See RECREATIONAL AND
Superseding cause, unforeseeable intentional SPORTING ACTIVITIES)
tort/criminal act as . . . 433 Standard of care
Good conduct of others, reliance on . . . 411 Basic standard . . . 401
Good Samaritan liability Common carriers (See COMMON CARRIERS)
Emergency, scene of . . . 450B Customs or practices, consideration of . . . 413
Nonemergency . . . 450A Dangerous situations (See subhead: Dangerous ac-
Gross negligence defined . . . 425 tivities or situations)
Highway safety and motor vehicles (See MOTOR VE- Disabled persons (See DISABLED PERSONS)
HICLES AND HIGHWAY SAFETY) Drug consumption . . . 404
Hiring employee, proof required to establish liability for Electric power lines and transmission equipment
negligence in . . . 426 . . . 416
Insurance agent’s negligent failure to obtain coverage,
Good Samaritans . . . 450A; 450B
elements of . . . 2361
Highway safety (See MOTOR VEHICLES AND
Intentional harm
HIGHWAY SAFETY)
Sports activity—Primary assumption of risk
Generally . . . 470 Intoxication . . . 404
Verdict form . . . VF-403 Legal malpractice . . . 600
Superseding cause, intentional tort/criminal act as Medical care (See MEDICAL MALPRACTICE)
. . . 433 Minors (See MINORS)
Interference with prospective economic relations (See Motor vehicles (See MOTOR VEHICLES AND
INTERFERENCE WITH ECONOMIC RELATIONS) HIGHWAY SAFETY)
Interstate commerce (See FEDERAL EMPLOYERS’ Premises liability cases, basic duty of care for
LIABILITY ACT (FELA)) . . . 1001
Intoxication (See INTOXICATION) Products liability (See PRODUCTS LIABILITY)
Law enforcement officers Professional malpractice, nonmedical . . . 600
Deadly force, negligent use of . . . 441 Railroad crossings (See RAILROAD CROSSINGS)
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INDEX NOTICE
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
NEGLIGENCE—Cont. NEGLIGENCE—Cont.
Statute of limitations Verdict forms—Cont.
Delayed-discovery rule, plaintiff seeking to overcome Single defendant
statute of limitations defense by asserting Generally . . . VF-400
. . . 455 Plaintiff’s negligence at issue and fault of others
Equitable estoppel to assert statute of limitations de- not at issue . . . VF-401
fense . . . 456 Ultrahazardous activities . . . VF-407
Equitable tolling of limitation period . . . 457 Sporting activities (See RECREATIONAL AND
Lawsuit filed after, affirmative defense alleging SPORTING ACTIVITIES)
. . . 454 Statute of limitations . . . VF-410
Verdict form . . . VF-410 Ultrahazardous activities . . . VF-407
Strict liability Vicarious liability . . . VF-3700
Dog bite statute (See subhead: Dog bite statute) Vicarious liability for (See VICARIOUS LIABILITY)
Domestic animal with dangerous propensities (See Waiver agreement, legal effect of . . . 451
subhead: Domestic animal with dangerous propen- Warnings (See WARNINGS)
sities) Wild animal, essential elements of strict liability for
Ultrahazardous activity (See subhead: Ultrahazardous injury caused by . . . 461
activity) Wrongful death (See WRONGFUL DEATH)
Wild animal . . . 461
Substantial factor in causation, definition of . . . 430 NEGLIGENCE PER SE
Sudden emergency . . . 452 Causation only at issue . . . 419
Superseding cause Excuse (See subhead: Rebuttal of presumption of negli-
General instruction on third-party conduct as gence)
. . . 432 Motor vehicles (See MOTOR VEHICLES AND HIGH-
Intentional tort/criminal act as . . . 433 WAY SAFETY)
Supervision of employee, proof required to establish Presumption of negligence per se
liability for negligent . . . 426 Causation only at issue . . . 419
Third persons General instruction . . . 418
Medical negligence (See MEDICAL MALPRAC- Rebuttal of presumption of negligence
TICE) General instruction on excuse of violation . . . 420
Motor vehicle, permissive use of Minor, excuse of violation by . . . 421
Generally . . . 720
Verdict form . . . VF-700 NEGLIGENT ENTRUSTMENT OF MOTOR VE-
Premises liability of business proprietor or property HICLE
owner for criminal conduct of others . . . 1005 General instruction . . . 724
Reliance on good conduct of others . . . 411 Verdict form . . . VF-704
Superseding cause, third-party conduct as (See sub- § 1983 CLAIMS (See CIVIL RIGHTS, subhead: Fed-
head: Superseding cause) eral law (42 U.S.C. § 1983))
Tort as superseding cause, intentional . . . 433
Training (See TRAINERS AND TRAINING) NOERR-PENNINGTON DOCTRINE (See CART-
Trespass, negligent entry on property as . . . 2000; WRIGHT ACT)
2002
Ultrahazardous activity NOMINAL DAMAGES
Essential elements of strict liability for . . . 460 Breach of contract . . . 360
Verdict form . . . VF-407 Defamation per se . . . 1700; 1702; 1704
Undertaking, negligent . . . 450C NOTE-TAKING
Unreasonable force by law enforcement officer in arrest Concluding instruction . . . 5010
or other seizure . . . 440 Introductory instruction . . . 102
Verdict forms
Dog bite statute . . . VF-409 NOTICE
Domestic animal with dangerous propensities California Family Rights Act, notice of leave under (See
. . . VF-408 FAMILY RIGHTS ACT)
Medical negligence (See MEDICAL MALPRAC- Dangerous conditions
TICE) Constructive notice of property’s . . . 1011
Minors, negligence involving (See MINORS) Public property, proof of notice of . . . 1100; 1103
Motor vehicle, permissive use of . . . VF-700 Family Rights Act, notice of leave under (See FAMILY
Multiple defendants, comparative fault of . . . VF- RIGHTS ACT)
402 Insurance (See INSURANCE)
Parental liability for negligent supervision of minor Medical practitioner’s abandonment of patient with in-
. . . VF-411 sufficient notice . . . 509
Premises liability (See PREMISES LIABILITY) Seller of product, notice to (See PRODUCTS LIABIL-
Products liability (See PRODUCTS LIABILITY) ITY)
I-57
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NOTICE INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
NOTICE—Cont. OPPRESSION
Time (See TIME) Defamation action, prerequisite for punitive damages in
Unlawful detainer (See UNLAWFUL DETAINER) . . . 1700–1705
Warranties on consumer goods, notices related to (See Defined . . . 1701–1705; 3115
SONG-BEVERLY CONSUMER WARRANTY ACT) Elder abuse and dependent adult protection actions (See
ELDER ABUSE AND DEPENDENT ADULT CIVIL
NOVATION PROTECTION ACT)
Defense of . . . 337 Emotional distress due to fear of cancer, HIV, or AIDS,
oppressive conduct causing . . . 1623
NUISANCE Prejudgment interest on damages . . . 3935
Annoyance and discomfort damages . . . 2031
Artificial condition on land creating nuisance, failure to ORAL AGREEMENTS
abate . . . 2023 Conspiracy agreement . . . 3600
Peaceful occupation and enjoyment of property, loss of General instruction on oral or written contract terms
. . . 304
. . . 2031
Insurance binder, oral agreement to provide . . . 2301
Private nuisance
Modification of contract by . . . 313
Artificial condition on land creating nuisance, failure
Validity of . . . 304
to abate . . . 2023
Waiver by words or conduct . . . 336
Balancing seriousness of harm against public benefit
. . . 2022 OVERTIME COMPENSATION (See WAGES)
Essential factual elements of . . . 2021
OWNERSHIP
Statute of limitations, affirmative defense of
Chattels, ownership of property as element of trespass
. . . 2030
to . . . 2101
Verdict form . . . VF-2006
Conversion, ownership element of . . . 2100
Public nuisance Motor vehicle, owner liability for permissive use of
Artificial condition on land creating nuisance, failure (See MOTOR VEHICLES AND HIGHWAY
to abate . . . 2023 SAFETY)
Essential factual elements of . . . 2020 Nuisance, ownership of property as element of private
Verdict form . . . VF-2005 . . . 2021
Rental agreement, termination of Premises liability (See PREMISES LIABILITY)
Essential factual elements . . . 4308 Public property in dangerous condition, entity owning
Notice, sufficiency and service of . . . 4309 or controlling . . . 1100
Verdict forms Real property owner’s/lessee’s action for breach of con-
Private nuisance . . . VF-2006 tract to construct improvements . . . 354
Public nuisance . . . VF-2005 Trespass, ownership of property as element of
. . . 2000–2002; 2101
NURSES (See MEDICAL MALPRACTICE)
P
O
PAIN AND SUFFERING
OFFENSIVE INVASION OF PRIVACY (See INVA- Tort damages for . . . 3905A
SION OF PRIVACY)
PARENT AND CHILD
OFFENSIVE TOUCHING Minor child (See MINORS)
Assault and battery, element of . . . 1300; 1301 Unlawful removal of child from parental custody with-
OFFENSIVE WORK ENVIRONMENT (See FAIR out warrant . . . 3051
EMPLOYMENT AND HOUSING ACT, subhead: Wrongful birth (See WRONGFUL BIRTH)
Work environment harassment) Wrongful life, medical negligence claim for . . . 513
OFFER (See CONTRACTS, subhead: Formation of PARTIES
contracts) Introductory instructions (See INTRODUCTORY IN-
STRUCTIONS)
OFFSETS Multiple parties
Eminent domain action, offset of severance damages in Concluding instruction . . . 5005
. . . 3512 Introductory instruction . . . 103
Personal pronouns used to refer to parties, specification
OPINIONS of . . . 118
Defamation cases, fact versus opinion in . . . 1707 Third party beneficiary of contract . . . 301
Expert opinions (See EXPERT OPINIONS AND TES- Wealth of . . . 117
TIMONY)
Fraud where reliance on opinion as representation of PARTNERSHIPS
fact . . . 1904 Concluding instruction on entity as party . . . 5006
I-58
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INDEX PERSON
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
PARTNERSHIPS—Cont. PERFORMANCE AND BREACH—Cont.
Defined . . . 3711 Implied duty to perform with reasonable care, breach of
Equal rights of partnership to conduct business, viola- . . . 328
tions of . . . 3061 Insurance contracts (See INSURANCE)
Fiduciary duty, breach of (See FIDUCIARIES) Intent
Party, introductory instruction on entity as . . . 104 Interference with contractual relations by preventing
Vicarious liability for wrongful conduct of partner performance or increasing difficulty or expense,
. . . 3711; 3712 intentional
Generally . . . 2201
PASSENGERS (See COMMON CARRIERS) Verdict form . . . VF-2201
PAYMENT Promise without intention to perform (See FRAUD,
Insurance payment for loss (See INSURANCE) subhead: False promise)
Rent, default in (See UNLAWFUL DETAINER, sub- Reasonable time for performance, intent of parties
head: Default in rent) regarding . . . 319
Wages, nonpayment of (See WAGES) Interference with contractual relations (See INTERFER-
ENCE WITH ECONOMIC RELATIONS)
PEACE OFFICERS (See LAW ENFORCEMENT
Introduction—Breach of contract . . . 300
AGENCIES AND OFFICERS)
Reasonable care in performance, Breach of implied duty
PENALTIES to use . . . 328
Civil rights violations under Ralph Act, civil penalty for Reasonable time for performance . . . 319
. . . 3068 Substantial performance . . . 312
Damages (See DAMAGES) Time for performance, reasonable . . . 319
Song-Beverly Consumer Warranty Act, civil penalty for Waiver
willful violation of . . . 3244; VF-3203 Condition precedent, waiver of . . . 323
Defense of waiver of performance . . . 336
PERCEIVED DISABILITY DISCRIMINATION
See FAIR EMPLOYMENT AND HOUSING ACT, Warranties, breach of (See WARRANTIES)(
subhead: Disability discrimination) PERIODIC TENANCY (See UNLAWFUL DE-
PERCENTAGE OF RESPONSIBILITY TAINER, subhead: Thirty- or sixty-day notice)
Comparative negligence (See COMPARATIVE NEGLI-
PERISHABLE PROPERTY (See UNFAIR PRAC-
GENCE)
TICES ACT, subhead: Defenses)
Equitable indemnity (See EQUITABLE INDEMNITY)
PERMISSION
PERFORMANCE AND BREACH
Anticipatory breach Consent (See CONSENT)
Damages, future (See BREACH OF CONTRACT, Trespass, absent or limited permission as element of
DAMAGES FOR) . . . 2000–2002
General instruction on . . . 324 Vehicle, permissive use of (See MOTOR VEHICLES
Assignment AND HIGHWAY SAFETY)
Contested . . . 326
PER SE DEFAMATION (See DEFAMATION)
Not contested . . . 327
Bad-faith breach of contract, wrongful threat of PER SE NEGLIGENCE (See NEGLIGENCE PER
. . . 333 SE)
Building contracts (See CONSTRUCTION CON-
TRACTS) PER SE VIOLATIONS (See CARTWRIGHT ACT,
Conditions precedent (See CONDITIONS PREC- subhead: Horizontal restraints)
EDENT)
Damages for breach of contract (See BREACH OF PERSONAL INJURY ACTIONS
CONTRACT, DAMAGES FOR) Aiding and abetting . . . 3610
Defenses to contract actions (See DEFENSES TO FELA cases, introduction to damages for personal injury
CONTRACT ACTIONS) in . . . 2941
Essential factual elements of breach of contract Judgment creditor’s action against insurer to collect on
. . . 303; VF-300 . . . 2360
Fraudulent promise to perform (See FRAUD, subhead: Mitigation of damages . . . 3930
False promise)
Good faith requirement PERSONAL PRONOUNS
Generally . . . 312 Specification of pronouns used to refer to parties
Breach of implied covenant of good faith and fair . . . 118
dealing, essential factual elements for . . . 325
Implied contractual indemnity based on failure to use PERSONAL PROPERTY
reasonable care in performance . . . 3801 Conversion (See CONVERSION)
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PERSON INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
PERSONAL PROPERTY—Cont. PRECEDENT CONDITIONS (See CONDITIONS
Elder/dependent adult abuse involving transfer of prop- PRECEDENT)
erty (See ELDER ABUSE AND DEPENDENT
PREEXISTING MEDICAL CONDITION OR DIS-
ADULT CIVIL PROTECTION ACT, subhead: Finan-
ABILITY
cial abuse)
Tort damages for aggravation of . . . 3927
Eminent domain taking, loss of personal property due to
(See EMINENT DOMAIN) PREJUDICE
Tort damages (See TORT DAMAGES) Insurer’s burden of proving . . . 2320; 2321
Trespass to chattels . . . 2101 Juror bias for or against any party or witness, caution
against . . . 107; 113; 5003
PETS
Expenses of treating tortious injury to pet, recovery of PREMISES LIABILITY
. . . 3903O Affirmative defense (See subhead: Recreation immunity)
Altered sidewalk, liability for adjacent . . . 1008
PHOTOGRAPH, APPROPRIATION OF (See INVA- Basic duty of care . . . 1001
SION OF PRIVACY) Business proprietors
Constructive notice of dangerous conditions on prop-
PHYSICAL ABUSE (See ELDER ABUSE AND DE- erty . . . 1011
PENDENT ADULT CIVIL PROTECTION ACT) Criminal conduct of others, liability for . . . 1005
Knowledge of employee of unsafe condition imputed
PHYSICIANS
to owner . . . 1012
CFRA leave, health care provider’s certification for (See
Concealed conditions, unsafe . . . 1009A
FAMILY RIGHTS ACT, subhead: Defenses)
Constructive notice of dangerous conditions on property
Evidence, use of statements made to physician as
. . . 1011
. . . 218 Control over property by defendant neither owning nor
Malpractice (See MEDICAL MALPRACTICE) leasing, extent of . . . 1002
Prescription products, duty to warn physician of risks of Criminal conduct of others, business proprietor or prop-
. . . 1205; 1222 erty owner’s liability for . . . 1005
PLACE (See LOCATION) Defense (See subhead: Recreation immunity)
Duty of care
PLAINTIFF CLASS Landlords . . . 1006
General instruction defining . . . 115 Landowner/possessor of property . . . 1001
Elements, essential factual
PLANS AND SPECIFICATIONS (See CONSTRUC- Altered sidewalk, liability for adjacent . . . 1008
TION CONTRACTS) General instruction . . . 1000
POLICE (See LAW ENFORCEMENT AGENCIES Employees
AND OFFICERS) Independent contractor’s employee, liability for un-
safe conditions injuring
POLITICAL AFFILIATION (See CIVIL RIGHTS) Concealed conditions . . . 1009A
Defective equipment . . . 1009D
POLLING THE JURY Retained control . . . 1009B
General instruction . . . 5017 Knowledge of employee of unsafe condition imputed
Predeliberation instructions . . . 5009 to owner . . . 1012
POLLUTION Guests and invitees
Trespass resulting from extrahazardous activities Business proprietor or property owner’s liability to
. . . 2001 patrons and guests for criminal conduct of others
. . . 1005
POSSESSION Knowledge of employee of unsafe condition imputed
Conversion, possession or right to possess as element of to owner . . . 1012
. . . 2100 Recreational purpose, invitee using property for
Trespass to chattels, possession or right to possess as . . . 1010
element of . . . 2101 Independent contractor’s employee, liability for unsafe
Unlawful detainer (See UNLAWFUL DETAINER) conditions injuring
Concealed conditions . . . 1009A
POWER OF ATTORNEY (See ELDER ABUSE AND Defective equipment . . . 1009D
DEPENDENT ADULT CIVIL PROTECTION ACT, Retained control . . . 1009B
subhead: Financial abuse) Inspection
POWER PRESS GUARDS (See WORKERS’ COM- Constructive notice of dangerous conditions on prop-
PENSATION) erty requiring . . . 1011
Landlord’s duty of inspection and correction
PRACTICE OR CUSTOM (See CUSTOM OR . . . 1006
PRACTICE) Unsafe conditions, duty to inspect for . . . 1003
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INDEX PRODUC
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
PREMISES LIABILITY—Cont. PRIVACY RIGHT (See INVASION OF PRIVACY)
Invitees (See subhead: Guests and invitees)
PRIVILEGE
Landlords
Defamation, privileges against (See DEFAMATION,
Business proprietor or property owner’s liability for
subhead: Privileges)
criminal conduct of others . . . 1005
False imprisonment action, common-law right of busi-
Duty of inspection and correction . . . 1006
ness proprietor to detain for investigation as privilege
Nondelegable duty rule . . . 3713
against . . . 1409
Non-owner or non-lessor’s control over property, extent
Intentional infliction of emotional distress, privileged
of . . . 1002
conduct as affirmative defense to . . . 1605
Notice of dangerous conditions on property, constructive
Unfair Practices Act, secret privileges prohibited under
. . . 1011
Obviously unsafe condition . . . 1004 (See UNFAIR PRACTICES ACT, subhead: Secret
Public property, dangerous condition of (See DANGER- rebates)
OUS CONDITION OF PUBLIC PROPERTY) Witness’s exercise of
Recreation immunity Communication privilege . . . 215
Affirmative defense . . . 1010 Not to testify, right . . . 216
Verdict form . . . VF-1001
PROBABLE CAUSE
Sidewalk
Abutting property . . . 1007 False arrest (See FALSE IMPRISONMENT, subhead:
Altered sidewalk, liability for adjacent . . . 1008 Defenses)
Unsafe conditions . . . 1003 Malicious prosecution (See MALICIOUS PROSECU-
Verdict forms TION, subhead: Reasonable grounds)
Comparative fault of plaintiff at issue . . . VF-1002
PROBATE
Comparative negligence of others not at issue
Intentional interference with expected inheritance, tort
. . . VF-1000
Recreation immunity, affirmative defense of of . . . 2205
. . . VF-1001 PROCEDURE FOR INSTRUCTIONS (See VER-
Warn, duty to . . . 1001
DICTS, subhead: Drafting, procedure, and general
PRESENT CASH VALUE OF FUTURE DAMAGES instructions)
Breach of contract, damages for . . . 359
PROCESS, MISUSE OF
Tort action . . . 3904A
Abuse of process
Worksheets to determine . . . 3904B
Essential factual elements . . . 1520
PRESUMPTIONS Verdict form . . . VF-1504
Conversion damages, presumed measure of . . . 2102 Malicious prosecution (See MALICIOUS PROSECU-
Negligence per se (See NEGLIGENCE PER SE) TION)
Reasonable repair opportunities for new motor vehicle
under warranty, rebuttable presumption of . . . 3203 PRODUCTION COST
Res ipsa loquitur Unfair Practices Act, cost defined under . . . 3303
General instruction . . . 417
Medical negligence . . . 518 PRODUCTS LIABILITY
Unfair Practices Act (See UNFAIR PRACTICES ACT, Affirmative defenses
subhead: Cost) Exclusion of warranties (See subhead: Exclusion of
warranties, defense of)
PREVENTATIVE MEASURES (See FAIR EMPLOY- Express warranty (See subhead: Express warranty)
MENT AND HOUSING ACT, subhead: Preventative Government contractor defense . . . 1246; 1247
measures by employers) Implied warranty (See subhead: Implied warranty)
PRICE Inherently unsafe consumer product . . . 1248
Cartwright Act (See CARTWRIGHT ACT) Product misuse or modification . . . 1245
Gender price discrimination . . . 3062; VF-3032 Sophisticated user defense . . . 1244
Motor vehicle’s price after breach of warranty, manu- Allergic reactions, duty to warn of potential . . . 1205;
facturer’s restitution for . . . 3241 1206
Unfair Practices Act (See UNFAIR PRACTICES ACT) Basis of bargain test . . . 1240; VF-1206
Burden of proof in design defect case . . . 1204
PRICE FIXING (See CARTWRIGHT ACT) Comparative negligence
PRINCIPAL AND AGENT (See AGENCY) Affirmative defense of product misuse or modifica-
tion in strict products liability action . . . 1245
PRISONS AND PRISONERS Plaintiff in strict products liability action, compara-
Civil rights (See CIVIL RIGHTS, subhead: Prisoners’ tive fault of . . . 1207A
federal rights, violation of) Third person in strict products liability action, com-
False imprisonment (See FALSE IMPRISONMENT) parative fault of . . . 1207B
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PRODUC INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
PRODUCTS LIABILITY—Cont. PRODUCTS LIABILITY—Cont.
Comparative negligence—Cont. Express warranty—Cont.
Verdict forms Reliance not “basis of bargain,” affirmative defense
General instruction where plaintiff’s comparative of . . . 1240; VF-1206
fault at issue . . . VF-1204 Verdict form on defense’s claim that reliance not
Manufacturing defect . . . VF-1200 “basis of bargain” . . . VF-1206
Components parts rule . . . 1208 Federal procurement contracts, liability arising from
Consumer expectation test in design defect case performance of . . . 1246; 1247
Essential factual elements . . . 1203 Fitness for particular purpose (See subhead: Implied
Verdict form . . . VF-1201 warranty)
Food product, implied warranty of merchantability for
Contributory negligence (See subhead: Comparative
. . . 1233
negligence)
Foreseeability
Defect
Affirmative defense of product misuse or modifica-
Design defect (See subhead: Design defect) tion . . . 1245
Manufacturing defect (See subhead: Manufacturing Design defect, use or misuse of product with
defect) . . . 1203
Defenses (See subhead: Affirmative defenses) Failure to warn or instruct . . . 1205; 1222
Design defect Manufacturing defect, use or misuse of product with
Burden of proof . . . 1204 . . . 1201
Consumer expectation test Negligence cases (See subhead: Negligence)
Essential factual elements . . . 1203 Government contractor defense
Verdict form . . . VF-1201 Design defects . . . 1246
Essential factual elements of strict liability design Failure to warn claims . . . 1247
defect Hazards, failure to warn of potential (See subhead:
Consumer expectation test . . . 1203 Warn, failure to)
Risk-benefit test . . . 1204 Immunity defense for inherently unsafe consumer prod-
General instruction on design defect as element of uct . . . 1248
strict liability . . . 1200 Implied warranty
Government contractor defense . . . 1246 Affirmative defense, exclusion of implied warranties
Risk-benefit test, essential factual elements of as
. . . 1204 Generally . . . 1242
Verdict forms Verdict form . . . VF-1207
Consumer expectation test . . . VF-1201 Essential factual elements
General form . . . VF-1201 Fitness for particular purpose . . . 1232
Essential factual elements Merchantability . . . 1231; 1233
Design defect (See subhead: Design defect) Exclusion of implied warranties as affirmative de-
Express warranty . . . 1230 fense
Implied warranty (See subhead: Implied warranty) Generally . . . 1242
Manufacturing defect . . . 1201 Verdict form . . . VF-1207
Negligence (See subhead: Negligence) Fitness for particular purpose
Strict liability . . . 1200 Essential factual elements . . . 1232
Warning defect (See subhead: Warn, failure to) Exclusion of implied warranty, affirmative defense
Exclusion of warranties, defense of of . . . 1242; VF-1207
Express warranty, exclusion or modification of Notice to seller . . . 1232
. . . 1241 Verdict form . . . VF-1208
Implied warranties, exclusion of Food product, implied warranty of merchantability
Generally . . . 1242 for . . . 1233
Verdict form . . . VF-1207 Leased product, applicability of cause of action to
Express warranty . . . 1231; 1232
Affirmative defense Merchantability
Basis of bargain, seller’s statements not Essential factual elements . . . 1231; 1233
. . . 1240; VF-1206 Food product . . . 1233
Exclusion or modification of express warranty Notice to seller . . . 1231
. . . 1241 Notice to seller . . . 1231; 1232
Reliance not basis of bargain . . . 1240; VF-1206 Verdict forms
Basis of bargain test . . . 1240; VF-1206 Exclusion of implied warranties as affirmative
Essential factual elements . . . 1230 defense . . . VF-1207
Exclusion or modification of warranty, affirmative Fitness for particular purpose . . . VF-1208
defense of . . . 1241 Inherently unsafe consumer product, affirmative defense
Intent to create express warranty . . . 1230 of . . . 1248
Notice to seller . . . 1230 Intent to create express warranty . . . 1230
I-62
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INDEX PRODUC
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
PRODUCTS LIABILITY—Cont. PRODUCTS LIABILITY—Cont.
Leased product (See subhead: Rental or lease of prod- Reliance not “basis of bargain” as defense to express
uct) warranty . . . 1240; VF-1206
Loan of defective product, negligence for . . . 1224 Rental or lease of product
Manufacturing defect Implied warranty cause of action, applicability of
Components parts rule . . . 1208 . . . 1231; 1232
Essential factual elements of manufacturing defect Negligence for product rental . . . 1224
claim . . . 1201 Risk-benefit test in design defect case, essential factual
General instruction on manufacturing defect as ele- elements of . . . 1204
ment of strict liability . . . 1200 Sophisticated user defense . . . 1244
Negligence of manufacturer or supplier (See sub- Standard of care (See subhead: Negligence)
head: Negligence) Strict liability
Verdict form . . . VF-1200 Comparative negligence (See subhead: Comparative
Merchantability (See subhead: Implied warranty) negligence)
Military contractor defense Design defect (See subhead: Design defect)
Design defects . . . 1246 Essential factual elements . . . 1200
Failure to warn claims . . . 1247 Manufacturing defect (See subhead: Manufacturing
Misuse of product (See subhead: Foreseeability) defect)
Modification or exclusion of express warranty, affirma- Sophisticated user defense . . . 1244
tive defense of . . . 1241 Verdict forms
Negligence Comparative negligence at issue (See subhead:
Basic standard of care . . . 1221 Comparative negligence)
Comparative negligence (See subhead: Comparative Design defect (See subhead: Design defect)
negligence) Warn, failure to . . . VF-1203
Components parts rule . . . 1208 Warning defect (See subhead: Warn, failure to)
Essential factual elements Supplier or manufacturer’s negligence (See subhead:
General instruction . . . 1220 Negligence)
Warn, manufacturer or supplier’s duty to Time for notification of seller, reasonable (See subhead:
. . . 1222 Notice to seller)
Foreseeability Use or misuse of product (See subhead: Foreseeability)
Failure to avoid exposing others to foreseeable Verdict forms
risk of harm . . . 1221 Express warranty, defense’s claim that reliance not
Warning duty where danger from foreseeable “basis of bargain” with regard to . . . VF-1206
manner of use . . . 1222 Implied warranty
Loan of defective product . . . 1224 Exclusion of implied warranties as affirmative
Recall or retrofit defective product, failure to defense . . . VF-1207
. . . 1223 Fitness for particular purpose . . . VF-1208
Rental of product . . . 1224 Negligence
Sophisticated user defense . . . 1244 Comparative negligence (See subhead: Compara-
Standard of care tive negligence)
Basic standard . . . 1221 Warn, failure to . . . VF-1205
Loan of product . . . 1224 Strict liability (See subhead: Strict liability)
Rental of product . . . 1224 Warn, failure to
Verdict forms Allergic reactions, duty to warn of potential
Comparative negligence (See subhead: Compara- . . . 1205; 1206
tive negligence) Essential factual elements of failure to warn
Warn, failure to . . . VF-1205 Allergic reactions, failure to warn of potential
Warn, duty to . . . 1205; 1206
Essential factual elements . . . 1222 Negligence context, failure to warn in . . . 1222
Manufacturer or supplier’s duty . . . 1222; 1223 Prescription drug usage, duty to warn physician of
Renter or lender’s duty . . . 1224 risks of . . . 1205; 1222
Verdict form . . . VF-1205 Strict liability context . . . 1205
Notice to seller General instruction on failure to warn as element of
Express warranty cases . . . 1230 strict liability . . . 1200
Implied warranty cases . . . 1231; 1232 Government contractor defense . . . 1247
Reasonable time for notification Negligence (See subhead: Negligence)
Express warranty cases . . . 1230 Nonprescription drugs containing allergens
General instruction on reasonable time . . . 1243 . . . 1206
Implied warranty cases . . . 1231; 1232 Prescription product cases, duty to warn physician in
Prescription product cases, duty to warn physician in . . . 1205; 1222
. . . 1205; 1222 Sophisticated user defense . . . 1244
Recall or retrofit defective product, failure to . . . 1223 Verdict form . . . VF-1203
I-63
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PRODUC INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
PRODUCTS LIABILITY—Cont. PSYCHOTHERAPISTS—Cont.
Warranty Patient’s threat, duty to protect intended victim from—
Exclusion of (See subhead: Exclusion of warranties, Cont.
defense of) Affirmative defense of reasonable efforts to commu-
Express warranty (See subhead: Express warranty) nicate threat to victim and law enforcement
Implied warranty (See subhead: Implied warranty) agency . . . 503B
Notice requirement (See subhead: Notice to seller)
PUBLIC ACCOMMODATIONS
PROFESSIONAL EMPLOYEES Discrimination in access to . . . 3060; VF-3030
Overtime compensation, affirmative defense to nonpay-
ment of . . . 2720 PUBLICATION
Defamation (See DEFAMATION)
PROFESSIONAL MALPRACTICE Invasion of privacy (See INVASION OF PRIVACY)
Damages for negligent handling of professional matter Trade secret, published material as means of acquiring
. . . 601 . . . 4408
Elements, essential factual . . . 400; 500
Legal malpractice (See ATTORNEYS) PUBLIC EMPLOYEES
Medical malpractice (See MEDICAL MALPRACTICE) Civil rights violations by (See CIVIL RIGHTS, sub-
Specialists head: Public entities, liability of)
Attorneys (See ATTORNEYS) Dangerous condition of public property, employee creat-
Standard of care for . . . 600 ing (See DANGEROUS CONDITION OF PUBLIC
Standard of care . . . 600 PROPERTY)
Success not required . . . 602 Emergency motor vehicle, exemption from liability
PROFESSIONAL NEGLIGENCE (See PROFES- while operating . . . 730
SIONAL MALPRACTICE) Immunity from malicious prosecution suit . . . 1503
Law enforcement officers (See LAW ENFORCEMENT
PROFITS, LOSS OF AGENCIES AND OFFICERS)
Breach of contract (See BREACH OF CONTRACT, Malicious prosecution suit, immunity from . . . 1503
DAMAGES FOR) Whistleblower protection (See WHISTLEBLOWER
Fraud in sale of property, damages for lost profits re-
PROTECTION)
sulting from . . . 1921
Tort damages for lost profits . . . 3903N PUBLIC ENTITIES
Civil rights violations, liability for (See CIVIL
PROMISE
Fraud (See FRAUD) RIGHTS)
Warranty of merchantability, failure of goods to live up Condemnation by (See EMINENT DOMAIN)
to promise in implied . . . 3210 Dangerous condition of public property (See DANGER-
OUS CONDITION OF PUBLIC PROPERTY)
PROPERTY DAMAGE Design defects in military equipment . . . 1246
Business proprietor’s common-law right to detain for Eminent domain (See EMINENT DOMAIN)
investigation of . . . 1409 Federal procurement contracts, products liability arising
Civil rights violation, violence against property as (See from performance of . . . 1246; 1247
CIVIL RIGHTS) Immunity from malicious prosecution suit . . . 1503
Destruction of property (See DESTRUCTION OF
Law enforcement agencies (See LAW ENFORCEMENT
PROPERTY)
AGENCIES AND OFFICERS)
Judgment creditor’s action against insurer to collect on
Malicious prosecution suit, immunity from . . . 1503
. . . 2360
Unfair Practices Act, defense for sales under (See UN- Military contractor defense . . . 1246; 1247
FAIR PRACTICES ACT, subhead: Defenses) Negligence
Dangerous condition of public property created by
PROSPECTIVE DAMAGES (See FUTURE DAM- negligent act of employee . . . 1100
AGES) Failure to perform mandatory duty, liability for
. . . 423
PROSPECTIVE ECONOMIC RELATIONS, IN-
See INTERFERENCE Party, entity asTERFERENCE WITH (
WITH ECONOMIC RELATIONS) Concluding instruction . . . 5006
Introductory instruction . . . 104
PROXIMATE CAUSATION Party, introductory instruction on entity as . . . 104
Insurance policy, proving predominant cause of loss was Property, dangerous condition of public (See DANGER-
covered or excluded risk in . . . 2306 OUS CONDITION OF PUBLIC PROPERTY)
Whistleblower protection (See WHISTLEBLOWER
PSYCHOTHERAPISTS
Patient’s threat, duty to protect intended victim from PROTECTION)
Generally . . . 503A
I-64
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INDEX REAL E
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
PUBLIC FIGURE (See DEFAMATION; INVASION RAILROAD CROSSINGS—Cont.
OF PRIVACY) Negligence—Cont.
Warning system, failure to install . . . 805
PUBLIC POLICY VIOLATIONS (See EMPLOY-
Safety regulations, duty to comply with . . . 801
MENT CONTRACTS)
Signals (See subhead: Warnings)
PUBLIC PROPERTY, DANGEROUS CONDITION Speed of train, regulating . . . 803
OF (See DANGEROUS CONDITION OF PUBLIC Traffic, lookout for crossing . . . 804
PROPERTY) Warnings
Basic standard of care for signals and protective de-
PUNITIVE DAMAGES vices . . . 800
Civil rights violations . . . 3068; VF-3033 Driver’s duty of care in presence of . . . 806
Defamation (See DEFAMATION) Installation of warning systems . . . 805
Ralph Act, damages under . . . 3068; VF-3033
Tort damages (See TORT DAMAGES) RAILROADS
Trade secret misappropriation . . . 4411 Generally (See COMMON CARRIERS)
Crossings (See RAILROAD CROSSINGS)
Q FELA claims (See FEDERAL EMPLOYERS’ LIABIL-
ITY ACT (FELA))
QUANTUM MERUIT
Common count for . . . 371 RALPH ACT (See CIVIL RIGHTS)
Contractor’s damages for abandoned construction con-
RATIFICATION
tract . . . 4542
Harassment by supervisor, employer’s liability for (See
QUASI-CONTRACT FAIR EMPLOYMENT AND HOUSING ACT, sub-
Restitution from transferee based on unjust enrichment head: Work environment harassment)
or . . . 375 Official with final policymaking authority, elements of
civil rights claim based on ratification by . . . 3004
QUESTIONS FROM JURORS
Vicarious liability where subsequent ratification of
Concluding instruction on juror questioning of witnesses
agent’s conduct . . . 3710
. . . 5019
Introductory instruction on juror questioning of wit- REAL ESTATE
nesses . . . 112 Brokers (See REAL ESTATE SALES—BROKERS)
QUID PRO QUO SEXUAL HARASSMENT (See Building contracts (See CONSTRUCTION CON-
FAIR EMPLOYMENT AND HOUSING ACT) TRACTS)
Condemnation (See EMINENT DOMAIN)
QUIT PREMISES, NOTICES TO (See UNLAWFUL Elder/dependent adult abuse involving transfer of prop-
DETAINER, subhead: Notice, sufficiency and service erty (See ELDER ABUSE AND DEPENDENT
of) ADULT CIVIL PROTECTION ACT, subhead: Finan-
cial abuse)
R Eminent domain proceedings (See EMINENT DO-
MAIN)
RACE, DISCRIMINATION BASED ON (See CIVIL Foreclosure, wrongful
RIGHTS, subhead: State law; DISCRIMINATION) Essential factual elements . . . 4920
Tender excused . . . 4921
RAILROAD CROSSINGS Landlord and tenant (See LANDLORD AND TENANT)
Automatic warning system, installation of . . . 805 Sale of (See REAL ESTATE SALES)
Basic standard of care . . . 800 Tort damages (See TORT DAMAGES, subhead: Real
Bells (See subhead: Warnings) property, damage to)
Comparative fault based on driver’s duty to approach Use of property (See USE)
with care . . . 806
Lookout for crossing traffic . . . 804 REAL ESTATE SALES
Motor vehicles Brokers (See REAL ESTATE SALES—BROKERS)
Driver’s duty to approach crossing with care Buyer’s damages for breach of contract to sell real
. . . 806 property . . . 356
Lookout for crossing traffic, train operator’s duty to Fair market value
keep . . . 804 Buyer’s damages for breach of contract . . . 356
Negligence Seller’s damages for breach of contract . . . 357
Applicability of negligence instructions . . . 800 Fraud (See FRAUD)
Comparative fault based on driver’ s duty to ap- Nondisclosure of material facts by seller or broker
proach with care . . . 806 . . . 1910; 4109
Failure to use reasonable care . . . 800 Seller’s damages for breach of contract to purchase real
Safety regulations, duty to comply with . . . 801 property . . . 357
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REAL E INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
REAL ESTATE SALES—BROKERS RECREATIONAL AND SPORTING ACTIVITIES—
Buyer, duty to disclose facts from inspection to Cont.
. . . 4110 Instructors, trainers, or coaches’ liability
Facts materially affecting value or desirability of prop- Reckless or intentional conduct or failure to use rea-
erty, duty to prospective buyer to disclose . . . 4109 sonable care . . . 471
Fiduciary duty of disclosure to client . . . 4107 Verdict form . . . VF-404
Inspection and disclosure duties owed to prospective Premises liability, affirmative defense of recreation im-
buyer . . . 4108 munity from
Multiple listing service (MLS), inaccurate information Generally . . . 1010
in . . . 4110 Verdict form . . . VF-1001
Sponsors’ duty not to unreasonably increase risks of
REASON, RULE OF (See CARTWRIGHT ACT)
injury to participants and spectators . . . 472; VF-
REASONABLE ACCOMMODATION FOR DIS- 405
ABLED EMPLOYEES (See FAIR EMPLOYMENT Verdict forms
AND HOUSING ACT) Co-participant in sports activity, negligence claim for
injury to . . . VF-403
REASONABLE PERSON STANDARD (See NEGLI- Instructors, trainers, or coaches’ liability . . . VF-
GENCE, subhead: Standard of care) 404
REBATES (See UNFAIR PRACTICES ACT, subhead: Premises liability, recreation immunity from
Secret rebates) . . . VF-1001
Vicarious liability for social or recreational activities of
RECKLESSNESS employees . . . 3724
Co-participant in sports activity, reckless or intentional
REFUNDS
injury to . . . 470; VF-403
Secret refunds (See UNFAIR PRACTICES ACT, sub-
Deliberate indifference, reckless disregard as element of
head: Secret rebates)
. . . 3003
Elder abuse and dependent adult protection (See EL- REFUSAL
DER ABUSE AND DEPENDENT ADULT CIVIL Equal rights, refusal to accord (See CIVIL RIGHTS,
PROTECTION ACT) subhead: State law)
Intentional infliction of emotional distress, reckless dis- Hire, refusal to (See FAIR EMPLOYMENT AND
regard as element of . . . 1603 HOUSING ACT, subhead: Discrimination)
Slander of title, reckless disregard as element of Insurer’s refusal to settle (See INSURER’S DUTY TO
. . . 1730; VF-1720 DEFEND, subhead: Settle, duty to)
Medical procedure, refusal of (See MEDICAL MAL-
Sports trainer’s liability for reckless or intentional con-
PRACTICE, subhead: Informed refusal)
duct causing injury . . . 471; VF-404
Trade libel, reckless disregard as element of . . . 1731; REGISTRATION
VF-1721 Motor vehicle registration fees after breach of warranty,
Trespass to timber, reckless entry on property for manufacturer’s restitution for . . . 3241
. . . 2002
REIMBURSEMENT OR RESTITUTION
RECORDING (See INVASION OF PRIVACY, sub- Employer’s failure to reimburse employee for expenses
head: Confidential information, electronic recording or losses . . . 2750
of) Song-Beverly Consumer Warranty Act (See SONG-
BEVERLY CONSUMER WARRANTY ACT, sub-
RECORDS head: Damages)
Court reporter’s record, introductory instruction for ju-
rors’ consulting of . . . 102 RELEASES
Defense based on express assumption of risk . . . 451
Disability, record of (See FAIR EMPLOYMENT AND
HOUSING ACT, subhead: Disability discrimination) RELIANCE
Wages paid and hours worked, payroll records showing Agency, reliance on implied . . . 3709
. . . 2703 Contract, reliance damages for breach of . . . 361
Fraud (See FRAUD)
RECREATIONAL AND SPORTING ACTIVITIES Insurance claims (See INSURANCE)
Co-participant in sports activity—Primary assumption of Malicious prosecution action, affirmative defense to
risk, reckless or intentional injury to . . . 1510; 1511; VF-1502
Generally . . . 470 Negligence (See NEGLIGENCE)
Verdict form . . . VF-403 Slander of title . . . 1730; VF-1720
Facilities owners’ duty not to unreasonably increase Trade libel . . . 1731; VF-1721
risks of injury to participants and spectators Warranties
. . . 472; VF-405 Basis of bargain requirement . . . 1240
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INDEX RISK
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
RELIANCE—Cont. RETALIATION
Warranties—Cont. Constitutionally protected rights, essential factual ele-
Fitness of consumer good, reliance as element of ments to establish retaliation for exercising
breach of warranty of . . . 3211 . . . 3050; 3053
Fair Employment and Housing Act, retaliation in viola-
RELIGIOUS CREED DISCRIMINATION tion of (See FAIR EMPLOYMENT AND HOUSING
Civil rights violations (See CIVIL RIGHTS, subhead: ACT)
State law) Family Rights Act leave retaliation (See FAMILY
FEHA violations (See FAIR EMPLOYMENT AND RIGHTS ACT)
HOUSING ACT) Immigration-related practice, retaliatory unfair
. . . 2732
REMOVAL FROM STATE (See ELDER ABUSE
Unlawful detainer, retaliatory eviction as affirmative
AND DEPENDENT ADULT CIVIL PROTECTION
defense against
ACT, subhead: Abduction)
Legally protected activity, engaging in . . . 4322
RENT AND RENTAL Tenant’s complaint regarding condition of property,
Landlord and tenant (See LANDLORD AND TENANT) for . . . 4321
Leases (See LEASES) Whistleblower protection (See WHISTLEBLOWER
Product, rental of (See PRODUCTS LIABILITY) PROTECTION)
Unlawful detainer (See UNLAWFUL DETAINER)
RETRACTION
REPAIRS Defamatory statement, news publication or broadcaster’s
Consumer goods, service and repair of (See SONG- retraction of . . . 1709
BEVERLY CONSUMER WARRANTY ACT)
RETURN OF PROPERTY
Electric power lines and transmission equipment, stan-
Vehicle under warranty returned to manufacturer, breach
dard of care required in repairing . . . 416
of disclosure obligations after . . . 3206; VF-3904
Premises liability, repair duty as element of . . . 1001
REVERSE ENGINEERING
REPLACEMENT
Trade secret misappropriation . . . 4408
Consumer goods under warranty, failure after reasonable
number of opportunities to purchase or replace REVOCATION
. . . 3200; 3201 Offer, revocation of . . . 308
Premises liability, replacement duty as element of
. . . 1001 RIGHT OF PRIVACY (See INVASION OF PRI-
VACY)
REPRESENTATIVES
Elder abuse and dependent adult protection (See EL- RIGHT-OF-WAY (See MOTOR VEHICLES AND
DER ABUSE AND DEPENDENT ADULT CIVIL HIGHWAY SAFETY)
PROTECTION ACT, subhead: Financial abuse)
RIGHT TO REPAIR ACT (See CONSTRUCTION
Principal and agent (See AGENCY)
CONTRACTS, subhead: Right to Repair Act)
REQUESTS FOR ADMISSIONS
RISK (See also SAFETY)
General instruction . . . 210
Assumption of risk (See ASSUMPTION OF RISK)
RESCISSION OF CONTRACT Cancer, HIV, or AIDS, emotional distress stemming
Insurance policy, concealment in application for from risk of (See EMOTIONAL DISTRESS, sub-
. . . 2308 head: Fear of cancer, HIV, or AIDS, conduct causing)
Health or safety-risk defense to disability discrimination
RESIDENTIAL RENTAL OR LEASE AGREE- claim under FEHA . . . 2544
MENTS, TERMINATION OF (See UNLAWFUL Medical nontreatment, failure to inform patient of risks
DETAINER) of . . . 535
Peculiar-risk doctrine . . . 3708
RESIGNATION FROM EMPLOYMENT (See EM-
Prisoner’s civil rights, substantial risk of serious harm
PLOYMENT CONTRACTS, subhead: Constructive
arising from violation of
discharge)
Generally . . . 3040
RES IPSA LOQUITUR Deprivation of necessities . . . 3043; VF-3023
General instruction . . . 417 Verdict form . . . VF-3021
Medical negligence . . . 518 Products liability case, risk-benefit test in (See PROD-
UCTS LIABILITY)
RESPONDEAT SUPERIOR (See VICARIOUS LI-
Vicarious liability (See VICARIOUS LIABILITY)
ABILITY)
RESTRAINT OF TRADE (See CARTWRIGHT ACT)
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RULE O INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
RULE OF REASON (See CARTWRIGHT ACT) SECRETS OF TRADE (See TRADE SECRET MIS-
APPROPRIATION)
S
SECTION 1983 CLAIMS (See CIVIL RIGHTS, sub-
head: Federal law (42 U.S.C. § 1983))
SABBATH, OBSERVANCE OF (See FAIR EMPLOY-
MENT AND HOUSING ACT, subhead: Religious SELECTION POLICIES (See FAIR EMPLOYMENT
creed discrimination) AND HOUSING ACT, subhead: Disparate impact
discrimination)
SAFETY (See also RISK)
Common carriers (See COMMON CARRIERS) SELF-DEFENSE/DEFENSE OF OTHERS
Dangerous condition of public property (See DANGER- Assault and battery, defense to (See ASSAULT AND
OUS CONDITION OF PUBLIC PROPERTY) BATTERY)
Hazards (See HAZARDS) Trespass defense (See TRESPASS, subhead: Necessity,
Health or safety-risk defense to disability discrimination affirmative defense of)
claim under FEHA . . . 2544
SELF-INCRIMINATION
Highway safety (See MOTOR VEHICLES AND HIGH- General instruction on exercise of witness’s right not to
WAY SAFETY) testify . . . 216
Hospital’s duty to provide safe environment . . . 515
Premises liability (See PREMISES LIABILITY) SELLING COSTS (See UNFAIR PRACTICES ACT,
Prison inmates and staff, use of force to protect safety subhead: Cost)
of . . . 3042
SERVICE OF GOODS
Products liability (See PRODUCTS LIABILITY) Consumer-goods warranties (See SONG-BEVERLY
Railroad crossings (See RAILROAD CROSSINGS) CONSUMER WARRANTY ACT)
SALES Trade libel . . . 1731; VF-1721
Consumer-goods warranties (See SONG-BEVERLY SERVICE OF PAPERS
CONSUMER WARRANTY ACT) Unlawful detainer (See UNLAWFUL DETAINER)
Fraud (See FRAUD)
Real estate (See REAL ESTATE SALES) SERVICE PROVIDER
Trade libel . . . 1731; VF-1721 Juror with disability, role of service provider for
Unfair Practices Act (See UNFAIR PRACTICES ACT) . . . 110; 5004
SAME DECISION DEFENSE SETTLEMENT
Fair Employment and Housing Act (See FAIR EM- Evidence of
PLOYMENT AND HOUSING ACT) Generally . . . 217
Whistleblower protection . . . 4602; VF-4601; VF- Sliding-scale settlement . . . 222
4602 Insurance claim, duty to settle (See INSURER’S DUTY
TO DEFEND)
SAMPLES Tort damages, settlement deduction from . . . 3926
Express warranty, sample of goods as . . . 3200
SEVERANCE DAMAGES (See EMINENT DO-
SCHOOLS (See EDUCATIONAL INSTITUTIONS) MAIN)
SCOPE OF EMPLOYMENT OR SCOPE OF AU- SEX AND GENDER
THORIZATION Civil rights law, sexual discrimination under (See
Consent, invalidation of consent by conduct exceeding CIVIL RIGHTS, subhead: Sex discrimination)
scope of . . . 1303 Harassment, sexual (See FAIR EMPLOYMENT AND
Dangerous condition of public property created by em- HOUSING ACT, subhead: Sexual harassment)
ployee acting within . . . 1100
FELA cases (See FEDERAL EMPLOYERS’ LIABIL- SEX DISCRIMINATION
ITY ACT (FELA)) Civil rights violations (See CIVIL RIGHTS, subhead:
Malicious prosecution suit, public employee acting Sex discrimination)
within scope of employment as immune from
. . . 1503 SEXUAL ASSAULT
Vicarious liability (See VICARIOUS LIABILITY) Unlawful detainer affirmative defense that tenant was
victim of . . . 4328
SEARCH AND SEARCH WARRANT (See CIVIL
RIGHTS) SEXUAL BATTERY
Essential factual elements . . . 1306
SEASONAL GOODS (See UNFAIR PRACTICES
ACT, subhead: Defenses) SEXUAL HARASSMENT
Fair Employment and Housing Act violations (See
SECRET REBATES (See UNFAIR PRACTICES FAIR EMPLOYMENT AND HOUSING ACT, sub-
ACT) head: Sexual harassment)
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INDEX SONG-B
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
SEXUALLY TRANSMITTED DISEASES SONG-BEVERLY CONSUMER WARRANTY
Negligent transmission of . . . 429 ACT—Cont.
Civil Code § 1793.2(d), essential factual elements
SHAREHOLDERS
under—Cont.
Equal rights to conduct business, violations of
. . . 3061 Motor vehicle, new . . . 3201
Verdict forms
SIDEWALKS (See PREMISES LIABILITY) General form . . . VF-3200
Motor vehicle, new . . . VF-3203
SIGNALS
Civil penalties
Railroad crossings (See RAILROAD CROSSINGS, sub-
Verdict form . . . VF-3203
head: Warnings)
Willful violation of act . . . 3244
Traffic signals (See DANGEROUS CONDITION OF
Consequential damages
PUBLIC PROPERTY)
Generally . . . 3243
SIGNATURE Verdict form . . . VF-3201
Driver’s license application of minor, liability of co- Continuation of express or implied warranty during re-
signer of pairs . . . 3231
Generally . . . 723 Continued reasonable use permitted . . . 3230
Verdict form . . . VF-703 Damages
Unformalized agreement . . . 306 Civil penalty in addition to (See subhead: Civil pen-
alties)
SILENCE Consequential damages
Consent, silence or inaction as indication of . . . 1302 Generally . . . 3243
Contract, silence as acceptance of . . . 310 Verdict form . . . VF-3201
SIXTY-DAY NOTICE (See UNLAWFUL DETAINER, Continued reasonable use permitted . . . 3230
subhead: Thirty- or sixty-day notice) General consumer goods, reimbursement damages
for . . . 3240
SLANDER (See DEFAMATION) Incidental damages . . . 3242
New motor vehicle, restitution from manufacturer of
SLANDER OF TITLE . . . 3241
Elements of cause of action . . . 1730; VF-1720 Defenses (See subhead: Affirmative defenses)
SOLICITATION Delivery of goods to repair facility . . . 3200; 3201
Employee solicited by misrepresentation . . . 2710; Disclaimer of implied warranties, affirmative defense of
VF-2704 Generally . . . 3221
Verdict form . . . VF-3205
SONG-BEVERLY CONSUMER WARRANTY ACT Disclosure obligations after vehicle returned to manu-
Affirmative defenses facturer, breach of
Disclaimer of implied warranties Essential factual elements of breach . . . 3206
Generally . . . 3221 Verdict form . . . VF-3206
Verdict form . . . VF-3205 Duration of implied warranty . . . 3212
Statute of limitations . . . 3222 Essential factual elements
Unauthorized or unreasonable use of good Breach of disclosure obligations . . . 3206
Generally . . . 3220 Breach of express warranty (See subhead: Civil Code
Verdict form . . . VF-3202 § 1793.2(d), essential factual elements under)
Verdict forms Breach of implied warranty (See subhead: Implied
Disclaimer of implied warranties . . . VF-3205 warranties of fitness and merchantability)
Unauthorized or unreasonable use of good Expenses
. . . VF-3202 Incidental damages, claim for additional expenses
“As-is” or “with-all-faults” basis of sale, defense based covering . . . 3242
on notice of . . . 3221 Repair or servicing expenses for goods sold with
Breach of disclosure obligations disclaimer, buyer’s responsibility for . . . 3221
Essential factual elements of . . . 3206 Express warranty
Verdict form . . . VF-3206 Affirmative defense of unauthorized or unreasonable
Breach of warranty use of good
Express warranty (See subhead: Civil Code § Generally . . . 3220
1793.2(d), essential factual elements under) Verdict form . . . VF-3202
Implied warranty (See subhead: Implied warranties Breach of (See subhead: Civil Code § 1793.2(d),
of fitness and merchantability) essential factual elements under)
Buy back vehicle, failure to . . . 3201 Continuation during repairs . . . 3231
Civil Code § 1793.2(d), essential factual elements under Previously owned/leased vehicle returned to manu-
General instruction . . . 3200 facturer, failure to provide written warranty on
Lemon Law provisions . . . 3201 Generally . . . 3206
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SONG-B INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
SONG-BEVERLY CONSUMER WARRANTY SONG-BEVERLY CONSUMER WARRANTY
ACT—Cont. ACT—Cont.
Express warranty—Cont. Motor vehicle—Cont.
Previously owned/leased vehicle returned to manu- New motor vehicle—Cont.
facturer, failure to provide written warranty on— Restitution from manufacturer of new motor ve-
Cont. hicle . . . 3241
Verdict form . . . VF-3206 Verdict form . . . VF-3203
Unauthorized or unreasonable use of good, affirma- Previously owned/leased vehicle returned to manu-
tive defense of facturer, breach of disclosure obligations after
Generally . . . 3220 Essential factual elements . . . 3206
Verdict form . . . VF-3202 Verdict form . . . VF-3206
Verdict forms Repair or service (See subhead: Repair or service of
Affirmative defense of unauthorized or unreason- goods)
able use of good . . . VF-3202 Restitution from manufacturer of new motor vehicle
Previously owned/leased vehicle returned to . . . 3241
manufacturer, failure to provide written war- “Substantially impaired” by defects, explanation of
ranty on . . . VF-3206 . . . 3204
Unauthorized or unreasonable use of good, affir- New motor vehicle (See subhead: Motor vehicle)
mative defense of . . . VF-3202 Notice
Extension of time (See subhead: Time) Disclaimer of implied warranty, notice of sale “as is”
Fitness for particular purpose (See subhead: Implied or “with all faults” as . . . 3221
warranties of fitness and merchantability) Repair, notice of need for (See subhead: Repair or
Implied warranties of fitness and merchantability service of goods)
Affirmative defenses (See subhead: Affirmative de- Opportunities to repair (See subhead: Repair or service
fenses) of goods)
Continuation during repairs . . . 3231 Penalties (See subhead: Civil penalties)
Definitions . . . 3210; 3211 Presumption of reasonable opportunities to repair ve-
Duration of . . . 3212 hicle, rebuttable . . . 3203
Essential factual elements of breach Previously owned/leased vehicle returned to manufac-
Fitness warranty . . . 3211 turer, breach of disclosure obligations after
Merchantability, warranty of . . . 3210 Essential factual elements . . . 3206
Verdict forms Verdict form . . . VF-3206
Disclaimer of implied warranties, affirmative de- Purchase or replace goods, failure after reasonable num-
fense of . . . VF-3205 ber of opportunities to . . . 3200; 3201
General form . . . VF-3204 Reimbursement
Incidental damages . . . 3242 Continued reasonable use permitted . . . 3230
Intent Damages (See subhead: Damages)
Create warranty, intent to . . . 3200; 3201 Failure after reasonable number of opportunities to
Violation of act, civil penalty for willful . . . 3244 purchase or replace . . . 3200
Leased goods Repair or service of goods
Consequential damages . . . 3243 Begin repairs within reasonable time, failure to
Motor vehicle returned to manufacturer by previous . . . 3205
lessee, breach of disclosure obligations after Complete repairs within 30 days, failure to
Essential factual elements . . . 3206 . . . 3205
Verdict form . . . VF-3206 Continued reasonable use permitted . . . 3230
Merchantability (See subhead: Implied warranties of Damages when failure to repair (See subhead: Dam-
fitness and merchantability) ages)
Motor vehicle Delivery to repair facility . . . 3200; 3201
Buy back vehicle, defendant’s failure to . . . 3201 Expenses when goods sold with disclaimer, buyer’s
Continued reasonable use permitted . . . 3230 responsibility for . . . 3221
Disclosure obligations after previously owned/leased Extension of warranty period . . . 3231
vehicle returned to manufacturer, breach of Failure after reasonable number of opportunities to
Essential factual elements . . . 3206 repair
Verdict form . . . VF-3206 Consumer goods, generally . . . 3200
New motor vehicle New motor vehicle . . . 3201
Continued reasonable use permitted . . . 3230 Notice of need for repair
Essential factual elements of violation of Civil Consumer goods, generally . . . 3200
Code § 1793.2(d) . . . 3201 New motor vehicle . . . 3201
Lemon Law provisions . . . 3201 Opportunities to repair
Repair or service (See subhead: Repair or service Damages after reasonable repair opportunities
of goods) (See subhead: Damages)
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INDEX STATUT
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
SONG-BEVERLY CONSUMER WARRANTY SPECIAL EMPLOYMENT (See VICARIOUS LI-
ACT—Cont. ABILITY, subhead: Temporary employment)
Repair or service of goods—Cont.
SPECIAL INTERROGATORIES AND VERDICTS
Opportunities to repair—Cont.
(See VERDICTS)
Presumption of reasonable opportunities to repair
vehicle, rebuttable . . . 3203 SPECIALISTS
“Repair opportunities,” explanation of . . . 3202 Medical specialists (See MEDICAL MALPRACTICE)
“Substantially impaired” by defects, explanation Professional (nonmedical) specialist
of . . . 3204 Attorneys (See ATTORNEYS)
Previously owned/leased vehicle returned to manu- General standard of care for . . . 600
facturer, failure to fix defect after
SPECIAL VERDICTS AND INTERROGATORIES
Generally . . . 3206 (See VERDICTS)
Verdict form . . . VF-3206
Replace or purchase goods, failure after reasonable SPEED
number of opportunities to . . . 3200; 3201 Motor vehicles (See MOTOR VEHICLES AND HIGH-
Restitution (See subhead: Damages) WAY SAFETY)
Return of vehicle to manufacturer by previous Railroad crossing, regulating speed of train at . . . 803
owner/lessee, breach of disclosure obligations after SPORTING ACTIVITIES (See RECREATIONAL
Essential factual elements . . . 3206 AND SPORTING ACTIVITIES)
Verdict form . . . VF-3206
Service of goods (See subhead: Repair or service of STALKING
goods) Unlawful detainer affirmative defense that tenant was
Statute of limitations, affirmative defense of . . . 3222 victim of . . . 4328
Time STANDARD OF CARE (See NEGLIGENCE)
Extension of warranty period . . . 3231
Failure to begin repairs within reasonable time or to STATE CIVIL RIGHTS LAW (See CIVIL RIGHTS)
complete within 30 days . . . 3205
Implied warranty, duration of . . . 3212 STATUTE OF LIMITATIONS
Statute of limitations, affirmative defense of Breach of contract, statute of limitations as affirmative
. . . 3222 defense to . . . 338
Vehicle repair, time limits applicable to . . . 3203; Construction contracts
3205 Latent defects in construction, statute of limitations
Unauthorized or unreasonable use of good, affirmative for . . . 4551
defense of Patent defects in construction, statute of limitations
Generally . . . 3220 for . . . 4550
Verdict form . . . VF-3202 Fair Employment and Housing Department, failure to
Use of goods file timely administrative complaint with . . . 2508
Reimbursement for value of . . . 3240 FELA action, special verdict or interrogatory on limita-
Unauthorized or unreasonable use as defense to tions period for . . . 2922
breach of warranty Fiduciary duty, affirmative defense of statute of limita-
Generally . . . 3220 tions to breach of . . . 4120
Verdict form . . . VF-3202 Fraud, affirmative defense in action for . . . 1925
Verdict forms Fraudulent transfer actions, affirmative defense to
Civil Code § 1793.2(d), violation of . . . 4208
General form . . . VF-3200 Legal malpractice lawsuit, affirmative defense of statute
Motor vehicle, new . . . VF-3203 of limitations for filing
Consequential damages . . . VF-3201 Four-year limit . . . 611
Disclosure obligations after vehicle returned to One-year limit . . . 610
manufacturer, breach of . . . VF-3206 Negligence action
Express warranty (See subhead: Express warranty) Delayed-discovery rule, plaintiff seeking to overcome
Implied warranties of fitness and merchantability statute of limitations defense by asserting
Disclaimer of implied warranties, affirmative de- . . . 455
fense of . . . VF-3205 Equitable estoppel to assert statute of limitations de-
General form . . . VF-3204 fense . . . 456
Unauthorized or unreasonable use of good, affirma- Equitable tolling of limitation period . . . 457
tive defense of . . . VF-3202 Lawsuit filed after statute of limitations in, affirma-
Willful violation, civil penalty for . . . 3244 tive defense alleging . . . 454
Verdict form . . . VF-410
SPECIAL DAMAGES Trade secret misappropriation . . . 4421
Breach of contract . . . 351 Trespass or private nuisance action, affirmative defense
Conversion . . . 2102 to . . . 2030
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STATUT INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
STATUTE OF LIMITATIONS—Cont. TERMINABLE AT WILL EMPLOYMENT (See
Warranty claims under Song-Beverly Consumer War- EMPLOYMENT CONTRACTS)
ranty Act . . . 3222
TERMINATION
STERILIZATION Cartwright Act, termination of reseller as vertical re-
Wrongful birth, medical negligence claim for . . . 511 straint under . . . 3409
Employment, wrongful termination of (See EMPLOY-
STIPULATIONS MENT CONTRACTS, subhead: Wrongful termina-
Concluding instruction . . . 5002 tion)
Introductory instruction . . . 106 Insurance policy termination based on fraudulent claim
. . . 2309
STOCKBROKERS
Unlawful detainer (See UNLAWFUL DETAINER, sub-
Speculative securities, breach of fiduciary duties con-
head: Expiration of tenancy)
cerning . . . 4105
TERM OF EMPLOYMENT (See EMPLOYMENT
STRICT LIABILITY
CONTRACTS)
Negligence (See NEGLIGENCE)
Products liability (See PRODUCTS LIABILITY) TERM OF TENANCY (See UNLAWFUL DE-
TAINER)
STRIKES
Employees, misrepresentations about pending strike TESTIMONY
made to prospective . . . 2710; VF-2704 Generally (See EVIDENCE)
Child . . . 224
SUBLETTING
Concluding instructions
Unlawful detainer claim, no right to occupancy of prop-
Generally . . . 5002; 5003
erty due to subletting in . . . 4300
Reading back of testimony . . . 5011
SUBSTANTIAL PERFORMANCE Eminent domain proceedings (See EMINENT DO-
Construction contracts . . . 4524 MAIN)
General instruction on . . . 312 Expert testimony (See EXPERT OPINIONS AND TES-
TIMONY)
SUBSTITUTION
Introductory instructions (See INTRODUCTORY IN-
Juror, substitution of alternate . . . 5014
STRUCTIONS)
SUPERSEDING CAUSE (See NEGLIGENCE) Juror questioning of witnesses . . . 112; 5019
Lay witness, opinion testimony of . . . 223
SUPERVISORS Reading back of testimony, concluding instruction on
Civil rights violations, liability for . . . 3005 . . . 5011
Harassment, employer liability for (See FAIR EM-
PLOYMENT AND HOUSING ACT, subhead: Work THEFT OF TRADE SECRET (See TRADE SECRET
environment harassment) MISAPPROPRIATION)
SUPPLIERS THIRD PERSONS
Equal rights to conduct business, violations of Assault and battery, protection of others as defense to
. . . 3061 (See ASSAULT AND BATTERY)
SUPPRESSION OF EVIDENCE Breach of contract, third party beneficiary entitled to
Willful suppression of evidence . . . 204 damages for . . . 301
Conservatorship of gravely disabled, effect of third
SURGEONS (See MEDICAL MALPRACTICE) party assistance on (See LANTERMAN-PETRIS-
SHORT ACT, subhead: Gravely disabled)
T Defamatory statement self-published to third person
. . . 1708
TAMPERING WITH PRICE STRUCTURES (See Insurer’s duty to defend and indemnify (See INSUR-
CARTWRIGHT ACT) ER’S DUTY TO DEFEND; INSURER’S DUTY TO
TAXATION INDEMNIFY)
Income tax effects of damages award in FELA cases Medical malpractice (See MEDICAL MALPRACTICE)
. . . 2940 Misrepresentation to . . . 1906
Motor vehicle sales tax after breach of warranty, manu- Negligence (See NEGLIGENCE)
facturer’s restitution for . . . 3241 Trespass defense, necessity to prevent harm to third
person as affirmative . . . 2005
TEMPORARY EMPLOYMENT (See VICARIOUS
LIABILITY)
TEMPORARY INSURANCE (See INSURANCE)
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INDEX TORT D
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
THIRTY- OR SIXTY-DAY NOTICE (See UNLAW- TORT DAMAGES—Cont.
FUL DETAINER) Breach of contract, tort and contract damages for (See
BREACH OF CONTRACT, DAMAGES FOR)
THREATS
Collateral source payments, consideration of . . . 3923
Civil rights law regarding threats of violence (See
Comparative fault of plaintiff . . . 3960
CIVIL RIGHTS, subhead: Violent acts or threats of Consortium, loss of . . . 3920; VF-3907
violence) Contract and tort damages (See BREACH OF CON-
Contract obtained by wrongful threat (See DURESS) TRACT, DAMAGES FOR)
False imprisonment using threats of force . . . 1400 Counsel’s arguments not evidence of damages
Psychotherapist’s duty to protect intended victim from . . . 3925
patient’s threat Court costs and attorneys’ fees, consideration of jurors
Generally . . . 503A of . . . 3964
Affirmative defense of reasonable efforts to commu- Crops, damages to
nicate threat to victim and law enforcement Annual crops, damages to . . . 3903H
agency . . . 503B Perennial crops, damages to . . . 3903I
Deductions
THREE-DAY NOTICE (See UNLAWFUL DE- Settlement deduction . . . 3926
TAINER) Workers’ compensation benefits paid, no deduction
for . . . 3965
TIMBER (See TRESPASS) Earnings related damages
TIME Earning capacity, loss of . . . 3903D
Mitigation of earnings loss
Condemned property, information discovered after date
Future lost earnings, mitigation of . . . 3962
of valuation of . . . 3505
Past lost earnings, mitigation of . . . 3961
Consumer-goods warranties (See SONG-BEVERLY
Past and future lost earnings . . . 3903C
CONSUMER WARRANTY ACT)
Race, ethnicity or gender, jurors not to consider
Defamatory statement, untimely retraction of . . . 1709 . . . 3906
Employment contracts (See EMPLOYMENT CON- Economic damages
TRACTS, subhead: Term of employment) Generally . . . 3902
FELA claim for latent or progressive injury, special ver- Crops, damages to
dict or interrogatory on limitations period for Annual crops, damages to . . . 3903H
. . . 2922 Perennial crops, damages to . . . 3903I
Insurer’s defense based on insured’s failure to give Earnings related economic damages (See subhead:
timely notice . . . 2320 Earnings related damages)
Medical malpractice claim, emergency leaving no time Household services, loss of ability to provide
for consent or refusal as defense to . . . 554 . . . 3903E
Performance, reasonable time for . . . 319 Items of
Product, reasonable time for notice to seller of (See Generally . . . 3903
PRODUCTS LIABILITY, subhead: Notice to seller) Crops, damages to . . . 3903H; 3903I
Reporting time of employee, failure to pay . . . 2754 Earnings related economic damages . . . 3903C;
Unlawful detainer (See UNLAWFUL DETAINER) 3903D
Vacation time, failure to pay all vested . . . 2753 Household services, loss of ability to provide
Warranties on consumer goods (See SONG-BEVERLY . . . 3903E
CONSUMER WARRANTY ACT) Lost profits . . . 3903N
Medical expenses . . . 3903A
TIPS AND GRATUITIES Medical monitoring as a result of toxic exposure
Conversion of tip pool . . . 2752 . . . 3903B
Personal property related damages (See subhead:
TITLE AND OWNERSHIP Personal property, damage to)
Adverse possession . . . 4900 Real property related damages . . . 3903F;
Easements (See EASEMENTS) 3903G
Slander of title, essential factual elements of . . . 1730; Lost earnings and lost earning capacity (See sub-
VF-1720 head: Earnings related damages)
TITLE VII EMPLOYMENT DISCRIMINATION Lost profits, for . . . 3903N
ACTIONS (See FAIR EMPLOYMENT AND Medical expenses . . . 3903A
HOUSING ACT) Medical monitoring as a result of toxic exposure
. . . 3903B
TORT DAMAGES Mitigation of future lost earnings . . . 3962
Aggravation of preexisting condition or disease Personal property related damages (See subhead:
. . . 3927 Personal property, damage to)
Attorneys’ fees and court costs, consideration of jurors Pet, expenses of treating tortious injury to
of . . . 3964 . . . 3903O
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TORT D INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
TORT DAMAGES—Cont. TORT DAMAGES—Cont.
Economic damages—Cont. Personal property, damage to—Cont.
Present cash value of future damages, determination Economic damages
of . . . 3904A; 3904B Damage to property . . . 3903J; 3903L
Real property related damages Loss or destruction of personal property
Harm to property, for . . . 3903F . . . 3903K
Loss of use of real property . . . 3903G Use of personal property, loss of . . . 3903M
Survival damages (See subhead: Survival damages) Loss or destruction of personal property, for
Toxic exposure, costs of medical monitoring as a . . . 3903K
result of . . . 3903B Mitigation of damages . . . 3931
Evidence of damages, counsel’s arguments not Peculiar value, damage to property having
. . . 3925 . . . 3903L
Future damages Special value, damage to property having
Earnings, loss of . . . 3903C . . . 3903L
Lost profits . . . 3903N Use of personal property, loss of . . . 3903M
Medical expenses . . . 3903A Pet, expenses of treating tortious injury to . . . 3903O
Mitigation of future lost earnings . . . 3962 Physical pain and mental suffering, for . . . 3905A
Physical pain and mental suffering, for . . . 3905A Preexisting condition or disease, for aggravation of
Present cash value of future economic damages, de- . . . 3927
termination of . . . 3904A; 3904B Prejudgment interest, award of . . . 3935
Household services, loss of ability to provide Present cash value of future economic damages
. . . 3903E General instruction . . . 3904A
Intentional interference with expected inheritance, tort Worksheets to determine . . . 3904B
of . . . 2205 Proposition 51 . . . 3933
Introduction Punitive damages
Contested liability . . . 3900 Corporate defendant or entity, against
Established liability . . . 3901 Bifurcated trial . . . 3944; 3946
Joint and several liability of multiple defendants Director/officer or managing agent, for conduct of
. . . 3933 . . . 3945; 3946
Life expectancy, determination of . . . 3932 Non-bifurcated trial . . . 3943; 3945
Lost earnings and lost earning capacity (See subhead: Specific agent or employee, for conduct of
Earnings related damages) . . . 3943; 3944
Lost profits, for . . . 3903N Verdict forms . . . VF-3901–3904
Medical expenses . . . 3903A Despicable conduct defined . . . 3940; 3941;
Medical monitoring as a result of toxic exposure 3943–3948
. . . 3903B Fraud defined . . . 3940; 3941; 3943–3948
Medical treatment or aid subsequent to original injury, Individual and corporate/entity defendant, against
responsibility for . . . 3929 Bifurcated trial . . . 3948; 3949
Mitigation of damages Non-bifurcated trial . . . 3947
Earnings loss, mitigation of Individual defendant, against
Future lost earnings, mitigation of . . . 3962 Bifurcated trial . . . 3941; 3942
Past lost earnings, mitigation of . . . 3961 Non-bifurcated trial . . . 3940
Future lost earnings, mitigation of . . . 3962 Verdict form . . . VF-3900
Past lost earnings, mitigation of . . . 3961 Malice defined . . . 3940; 3941; 3943–3948
Personal injury, reasonable effort to avoid . . . 3930 No punitive damages award instruction . . . 3924
Property damage, reasonable effort to avoid Oppression defined . . . 3940; 3941; 3943–3948
. . . 3931 Survival damages (See subhead: Survival damages)
Multiple claims, causes of action, or counts, damages Verdict forms
on . . . 3934; VF-3920 Corporate defendant or entity, against . . . VF-
Multiple defendants . . . 3933 3901–3904
Noneconomic damages Individual defendant, punitive damages against
Generally . . . 3902 . . . VF-3900
Consortium, loss of . . . 3920; VF-3907 Real property, damage to
Items of Economic damages
Generally . . . 3905 Harm to property, for . . . 3903F
Physical pain and mental suffering . . . 3905A Use of real property, loss of . . . 3903G
Physical pain and mental suffering, for . . . 3905A Harm to property, for . . . 3903F
Personal property, damage to Mitigation of damages . . . 3931
Damage to property, for Use of real property, loss of . . . 3903G
Generally . . . 3903J Settlement, deduction for . . . 3926
Special value, damage to property having Survival damages
. . . 3903L Generally . . . 3903Q
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INDEX TRANSF
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
TORT DAMAGES—Cont. TRADE SECRET MISAPPROPRIATION—Cont.
Survival damages—Cont. General forms—Cont.
Elder Abuse and Dependent Adult Civil Protection Introductory instruction . . . 4400
Act, under (See ELDER ABUSE AND DEPEN- Secrecy requirement . . . 4403
DENT ADULT CIVIL PROTECTION ACT, sub- Trade secret defined . . . 4402
head: Enhanced remedies sought) Improper means
Susceptible plaintiff, for . . . 3928 Acquisition of trade secret by improper means, in-
Toxic exposure, costs of medical monitoring as a result struction for misappropriation based on . . . 4405;
of . . . 3903B 4408
Unusually susceptible plaintiff, for . . . 3928 Definition of . . . 4408
Verdict forms Use or disclosure, instruction for misappropriation
Consortium, loss of . . . VF-3907 based on improper . . . 4400; 4406; 4407
Punitive damages (See subhead: Punitive damages) “Independent economic value” explained . . . 4412
Wrongful death (See subhead: Wrongful death) Introductory instruction . . . 4400
Workers’ compensation benefits paid, no deduction for Licensing agreement, information obtained as result of
. . . 3965 . . . 4408
Wrongful death Malicious and willful misappropriation . . . 4411
Adult, death of . . . 3921; VF-3905 Protection of secrecy, reasonable efforts for . . . 4404
Minor child, parent’s recovery for death of Public use information as means of acquiring trade se-
. . . 3922; VF-3906 cret . . . 4408
Verdict forms Published material as means of acquiring trade secret
Adult, death of . . . VF-3905 . . . 4408
Minor child, parent’s recovery for death of Punitive damages . . . 4411
. . . VF-3906 Remedies for misappropriation based on improper use
Wrongful discharge from employment, damages for tort or disclosure . . . 4409
of . . . 3903P Reverse engineering as means of acquiring trade secret
. . . 4408
TOXIC SUBSTANCES
Emotional distress (See EMOTIONAL DISTRESS, sub- Royalties awarded for damages . . . 4409
head: Fear of cancer, HIV, or AIDS, conduct causing) Secrecy requirement . . . 4403
Medical monitoring costs as a result of exposure, tort Statute of limitations, three-year limit on . . . 4421
damages for . . . 3903B Unauthorized acquisition of trade secret, instruction for
Tort damages for medical monitoring costs as a result misappropriation based on . . . 4405
of exposure to . . . 3903B Unjust enrichment
Generally . . . 4400; 4401
TRADE LIBEL Calculating amount of . . . 4410
Essential factual elements to establish claim of Verdict form . . . VF-4400
. . . 1731; VF-1721 Willful and malicious misappropriation . . . 4411
TRADE SECRET MISAPPROPRIATION TRAFFIC
Acquisition of trade secret by improper means, instruc- Dangerous condition of public property (See DANGER-
tion for misappropriation based on . . . 4405; 4408 OUS CONDITION OF PUBLIC PROPERTY)
Affirmative defense based on information as readily Railroad crossings (See RAILROAD CROSSINGS)
ascertainable by proper means . . . 4420
Damages TRAINERS AND TRAINING
Generally . . . 4409 Civil rights violation, failure to train public
Punitive . . . 4411 officers/employees as element of
Definitions Essential factual elements . . . 3003
Improper means . . . 4408 Verdict form . . . VF-3002
Trade secret . . . 4402 Sports trainers
Efforts for protection of secrecy, reasonable . . . 4404 Elements to establish liability for injury to partici-
Elements of cause of action pant in sport activity . . . 471
Acquisition of trade secret by improper means Verdict form . . . VF-404
. . . 4405; 4408 TRAINS (See RAILROAD CROSSINGS; RAIL-
Essential factual elements . . . 4401 ROADS)
Misappropriation based on improper use or disclo-
sure . . . 4400; 4406; 4407 TRANSFER
Unjust enrichment . . . 4400; 4401 Elder/dependent adult abuse involving transfer of prop-
Essential factual elements . . . 4401 erty (See ELDER ABUSE AND DEPENDENT
General forms ADULT CIVIL PROTECTION ACT, subhead: Finan-
Elements of cause of action (See subhead: Elements cial abuse)
of cause of action) Fraudulent transfers (See FRAUDULENT TRANS-
Improper means defined . . . 4408 FERS)
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TRANSF INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
TRANSFER—Cont. TRESPASS—Cont.
Sale of realty (See REAL ESTATE SALES) Timber—Cont.
Verdict forms
TRANSLATION
General form . . . VF-2003
Concluding instruction on duty to abide by . . . 5008
Treble damages . . . VF-2004
Introductory instruction on duty to abide by . . . 108
Treble damages for trespass to timber
TRANSPORTATION Generally . . . 2003
Common carriers (See COMMON CARRIERS) Verdict form . . . VF-2004
Going-and-coming rule (See VICARIOUS LIABILITY) Trees, trespass to cut down (See subhead: Timber)
Restitution for transportation charges by manufacturer Verdict forms
of defective motor vehicle . . . 3241 Extrahazardous activities . . . VF-2002
Unfair Practices Act, cost for purposes of (See UNFAIR General form . . . VF-2000
PRACTICES ACT, subhead: Cost) Necessity, affirmative defense of . . . VF-2001
Timber, trespass to
TREBLE DAMAGES General form . . . VF-2003
Civil rights violations . . . 3067 Treble damages . . . VF-2004
Trespass to timber, treble damages for . . . 2003; VF-
2004 TRESPASS TO CHATTELS (See also CONVER-
Unruh Civil Rights Act, damages under . . . 3067 SION)
Essential factual elements of . . . 2101
TREES (See TRESPASS, subhead: Timber)
TRUSTEES (See ELDER ABUSE AND DEPENDENT
TRESPASS ADULT CIVIL PROTECTION ACT, subhead: Finan-
Annoyance and discomfort damages . . . 2031
cial abuse)
Control of property as element of . . . 2000–2002
Defenses TYING ARRANGEMENT (See CARTWRIGHT ACT)
Necessity, affirmative defense of . . . 2005; VF-
2001 U
Statute of limitations, affirmative defense of
. . . 2030
UFTA (See FRAUDULENT TRANSFERS, subhead:
Despicable conduct in taking timber or damaging trees,
Uniform Voidable Transactions Act (UVTA))
treble damages for . . . 2003
Elements of claim . . . 2000 ULTRAHAZARDOUS ACTIVITY (See HAZARDS)
Entry explained
Generally . . . 2000; 2001 UNAUTHORIZED CONDUCT (See VICARIOUS
Intentional entry . . . 2004 LIABILITY)
Extrahazardous activities
Elements of claim . . . 2001 UNDUE HARDSHIP DEFENSE (See FAIR EM-
Verdict form . . . VF-2002 PLOYMENT AND HOUSING ACT)
General instruction . . . 2000
UNDUE INFLUENCE
Intentionality
Element of trespass, intentionality as . . . 2000; Contract action, affirmative defense to . . . 334
2002; 2101 Financial abuse, undue influence explained as element
Explained . . . 2004 of . . . 3117334
Timber, trespass to . . . 2002; 2003 Intentional interference with expected inheritance, tort
Lease of property as element of . . . 2000–2002 of . . . 2205
Necessity, affirmative defense of UNFAIR COMPETITION
Generally . . . 2005 Cartwright Act (See CARTWRIGHT ACT)
Verdict form . . . VF-2001 Consumers Legal Remedies Act (See CONSUMERS
Negligent entry on property . . . 2000; 2002 LEGAL REMEDIES ACT)
Nuisance, creation of (See NUISANCE) Trade secret misappropriation (See TRADE SECRET
Ownership of property as element of . . . 2000–2002; MISAPPROPRIATION)
2101 Unfair Practices Act (See UNFAIR PRACTICES ACT)
Peaceful occupation and enjoyment of property, injury
to . . . 2031 UNFAIR PRACTICES ACT
Permission, absent or limited . . . 2000–2002 Affirmative defenses (See subhead: Defenses)
Statute of limitations, affirmative defense of . . . 2030 Allocating costs to individual product, methods of
Timber . . . 3306
Elements of claim for trespass to timber . . . 2002 Below-cost sales
Treble damages Defenses (See subhead: Defenses)
Generally . . . 2003 Essential factual elements for establishing claims
Verdict form . . . VF-2004 . . . 3301
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INDEX UNFAIR
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
UNFAIR PRACTICES ACT—Cont. UNFAIR PRACTICES ACT—Cont.
Below-cost sales—Cont. Good faith defined in context of meeting competition
Loss leader activities (See subhead: Loss leader ac- defense . . . 3335
tivities) Locality discrimination
Verdict forms Cost justification defense
Defense to claim . . . VF-3303 General instruction on . . . 3330
General form . . . VF-3302 Verdict form . . . VF-3301
Close-out sales, defense for (See subhead: Defenses) Defined . . . 3300
Commissions, secret (See subhead: Secret rebates) Downstream competition defense, manufacturer
Cost meeting . . . 3334
Allocating costs to individual product, methods of Essential factual elements for establishing claim
. . . 3306 . . . 3300
Below-cost sales (See subhead: Below-cost sales) Verdict forms
Definition of . . . 3303 Cost justification defense . . . VF-3301
Distribution costs (See subhead: Distribution costs) General form . . . VF-3300
General form of instruction on cost justification de- Loss leader activities
fense . . . 3330 Essential factual elements for establishing claims
Justification defense (See subhead: Locality discrimi- . . . 3302
nation) Meeting competition defense (See subhead: Meeting
Presumptions concerning costs competition defense)
Distributor’s cost . . . 3305 Verdict forms
Manufacturer’s cost . . . 3304 General form . . . VF-3304
Damaged goods, defense for sale of (See subhead: De- Meeting competition defense . . . VF-3305
fenses) Manufacturing cost (See subhead: Cost)
Defenses Meeting competition defense
Close-out sales Downstream competition defense . . . 3334
General instruction . . . 3331 General form of instruction on . . . 3333
Verdict form . . . VF-3303 Good faith defined in context of . . . 3335
Cost justification defense (See subhead: Locality dis- Verdict form . . . VF-3305
crimination) Perishable goods, defense for sale of (See subhead: De-
Damaged goods, sale of fenses)
General instruction . . . 3331 Presumptions concerning costs (See subhead: Cost)
Verdict form . . . VF-3303 Privileges, liability for secret (See subhead: Secret re-
Discontinued goods, sale of bates)
General instruction . . . 3331 Production cost defined . . . 3303
Verdict form . . . VF-3303 Rebates, liability for secret (See subhead: Secret re-
Functional classification defense bates)
General instruction on . . . 3332 Refunds, secret (See subhead: Secret rebates)
Verdict form . . . VF-3307 Seasonal goods, defense for sale of (See subhead: De-
Perishable goods, sale of fenses)
General instruction . . . 3331 Secret rebates
Verdict form . . . VF-3303 Definition of secret . . . 3321
Seasonal goods, sale of Essential factual elements for establishing rebates
General instruction . . . 3331 given . . . 3320
Verdict form . . . VF-3303 Functional classifications defense (See subhead: De-
Definitions fenses)
Cost . . . 3303 Verdict forms
Good faith . . . 3335 Functional classifications defense . . . VF-3307
Locality discrimination . . . 3300 General form . . . VF-3306
Loss leader . . . 3302 Selling cost (See subhead: Cost)
Secret as pertaining to secret rebates . . . 3321 Transportation cost (See subhead: Cost)
Discounts Verdict forms
Functional discounts (See subhead: Defenses) Below-cost sales (See subhead: Below-cost sales)
Unearned discounts (See subhead: Secret rebates) Functional classifications defense . . . VF-3307
Distribution costs Locality discrimination (See subhead: Locality dis-
Defined . . . 3303 crimination)
Presumptions concerning distributor’s costs Loss leader sales (See subhead: Loss leader activi-
. . . 3305 ties)
Expenses (See subhead: Cost) Secret rebates (See subhead: Secret rebates)
Functional classification defense (See subhead: De- Warranty service agreements, cost defined in context of
fenses) . . . 3303
I-77
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UNIFOR INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
UNIFORM ELECTRONIC TRANSACTIONS ACT UNLAWFUL DETAINER—Cont.
(UETA) Burden of proof—Cont.
Contract formation . . . 380 Nonperformance of important obligation of
lease/agreement, termination for
UNIFORM FRAUDULENT TRANSFER ACT
Essential factual elements . . . 4304
(UFTA) (See FRAUDULENT TRANSFERS, sub-
Verdict form . . . VF-4302
head: Uniform Voidable Transactions Act (UVTA))
Reasonable estimate of amount of rent due, suffi-
UNIFORM TRADE SECRETS ACT (See TRADE ciency and service of three-day notice to pay
SECRET MISAPPROPRIATION) . . . 4303
Rent control ordinance, affirmative defense of failure
UNIFORM VOIDABLE TRANSACTIONS ACT to comply with . . . 4325
(UVTA) (See FRAUDULENT TRANSFERS, sub- Repair and deduct, affirmative defense of . . . 4326
head: Uniform Voidable Transactions Act (UVTA)) Retaliation for complaints of tenant, affirmative de-
UNJUST ENRICHMENT fense where termination of tenancy is in
Restitution from transferee based on quasi-contract or . . . 4321
. . . 375 Three-day notice to pay rent or comply with terms or
Trade secret misappropriation vacate, sufficiency and service of
Generally . . . 4400; 4401 General instruction . . . 4303
Calculating amount of unjust enrichment . . . 4410 Violation of terms of lease/agreement, termination
for . . . 4305; VF-4302
UNLAWFUL DETAINER Verdict forms
Affirmative defenses (See subhead: Defenses) Failure to pay rent, termination for . . . VF-
Breach of covenant or condition 4300; VF-4301
Default in rent (See subhead: Default in rent) Implied warranty of habitability, affirmative de-
Habitability, breach of implied warranty of (See sub- fense of . . . VF-4301
head: Habitability, affirmative defense of implied Nonperformance of important obligation of
warranty of) lease/agreement, termination for . . . VF-4302
Waiver by acceptance of rent, affirmative defense of
Nonperformance of important obligation of
. . . 4324
lease/agreement, termination for
Compensatory damages for reasonable rental value
Essential factual elements . . . 4304
. . . 4340
Verdict form . . . VF-4302
Complaints of tenant, affirmative defense where termi-
Verdict forms nation in retaliation for . . . 4321
Implied warranty of habitability, affirmative de- Conditions, breach of (See subhead: Breach of covenant
fense of . . . VF-4301 or condition)
Nonperformance of important obligation of Covenants, breach of (See subhead: Breach of covenant
lease/agreement, termination for . . . VF-4302 or condition)
Burden of proof Damages
Discriminatory eviction (Unruh Civil Rights Act), Malice, statutory damages on showing of defendant’s
affirmative defense of . . . 4323 . . . 4341
Failure to pay rent, termination for Reasonable rental value for wrongful occupancy,
Essential factual elements . . . 4302 compensatory damages for . . . 4340
Verdict forms . . . VF-4300; VF-4301 Default in rent
Fixed-term tenancy, essential factual elements for Damages (See subhead: Damages)
expiration of . . . 4301 Defenses (See subhead: Defenses)
Habitability, affirmative defense of implied warranty Failure to pay rent, three-day notice to pay rent or
of vacate for . . . VF-4300
General form . . . 4320 Nonperformance of important obligation of
Verdict form . . . VF-4301 lease/agreement, termination for
Landlord’s refusal of rent, affirmative defense of Essential factual elements . . . 4304
. . . 4327 Verdict form . . . VF-4302
Legally protected activity, affirmative defense where Three-day notice to pay rent or vacate
termination in retaliation for tenant engaging in Essential factual elements . . . 4302
. . . 4322 Sufficiency and service of termination for failure
Malice, recovery of statutory damages on showing of to pay rent . . . 4303
defendant’s . . . 4341 Verdict form . . . VF-4300
Month-to-month tenancy Waiver by acceptance of rent, affirmative defense
Essential factual elements for termination of . . . 4324
. . . 4306 Verdicts forms
Sufficiency and service of notice of termination Nonperformance of important obligation of
. . . 4307 lease/agreement, termination for . . . VF-4302
I-78
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INDEX UNLAWF
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
UNLAWFUL DETAINER—Cont. UNLAWFUL DETAINER—Cont.
Default in rent—Cont. Fixed-term tenancy, essential factual elements for expi-
Verdicts forms—Cont. ration of . . . 4301
Three-day notice to pay rent or vacate . . . VF- Habitability, affirmative defense of implied warranty of
4300 General form . . . 4320
Defenses Verdict form . . . VF-4301
Discriminatory eviction (Unruh Civil Rights Act), Human trafficking, affirmative defense that tenant was
affirmative defense of . . . 4323 victim of . . . 4328
Domestic violence, sexual assault, or stalking, tenant Introductory instruction . . . 4300
was victim of . . . 4328 Legally protected activity, affirmative defense where
Elder abuse, tenant was victim of . . . 4328 termination in retaliation for tenant engaging in
Implied warranty of habitability, affirmative defense . . . 4322
of Malice, statutory damages on showing of defendant’s
General form . . . 4320 . . . 4341
Verdict form . . . VF-4301 Measure of damages (See subhead: Damages)
Landlord’s refusal of rent, affirmative defense of Month-to-month tenancy (See subhead: Thirty- or sixty-
. . . 4327 day notice)
Reasonable accommodation, failure to provide Nonhabitable condition of property (See subhead: Hab-
Affirmative defense to unlawful detainer itability, affirmative defense of implied warranty of)
. . . 4329 Nonpayment of rent (See subhead: Default in rent)
Proper denial of accommodation, claim of Nonperformance of important obligation of
. . . 4330 lease/agreement, termination for
Repair and deduct, affirmative defense of . . . 4326 Essential factual elements . . . 4304
Retaliatory eviction, affirmative defense of Verdict form . . . VF-4302
Complaint regarding condition of property filed No right to occupancy of property . . . 4300
by tenant . . . 4321 Notice, sufficiency and service of
Thirty- or sixty-day notice . . . 4307
Legally protected activity, tenant engaging in
Three-day notice (See subhead: Three-day notice)
. . . 4322
Nuisance or unlawful use, termination for
Waiver by acceptance of rent, affirmative defense of
Essential factual elements . . . 4308
. . . 4324 Notice, sufficiency and service of . . . 4309
Demand for possession (See subhead: Notice, suffi- Periodic tenancy, expiration of (See subhead: Thirty- or
ciency and service of) sixty-day notice)
Dependent adult tenant was victim of abuse . . . 4328 Quit notices (See subhead: Notice, sufficiency and ser-
Discriminatory eviction (Unruh Civil Rights Act), affir- vice of)
mative defense of . . . 4323 Reasonable accommodation, failure to provide
Domestic violence, affirmative defense that tenant was Affirmative defense to unlawful detainer . . . 4329
victim of . . . 4328 Proper denial of accommodation, claim of . . . 4330
Elder abuse, tenant was victim of . . . 4328 Reasonable rental value, damages for . . . 4340
Estimated amount of rent due, sufficiency and service of Rent
three-day notice to pay reasonable . . . 4303 Default in rent (See subhead: Default in rent)
Expiration of tenancy Landlord’s refusal of rent, affirmative defense of
Failure to pay rent, termination for . . . 4327
Essential factual elements . . . 4302 Ordinance, affirmative defense of failure to comply
Verdict form . . . VF-4300 with rent control . . . 4325
Fixed-term tenancy, essential factual elements for Repair and deduct, affirmative defense of . . . 4326
expiration of . . . 4301 Retaliatory motive of landlord as defense . . . 4321
Nonperformance of important obligation of Service of notice
lease/agreement, termination for Leaving notice with responsible person . . . 4305
Essential factual elements . . . 4304 Posting of notice . . . 4305
Verdict form . . . VF-4302 Thirty- or sixty-day notice (See subhead: Thirty- or
Periodic tenancy (See subhead: Thirty- or sixty-day sixty-day notice)
notice) Three-day notice (See subhead: Three-day notice)
Tenancy at will (See subhead: Thirty- or sixty-day Sexual assault, affirmative defense that tenant was vic-
notice) tim of . . . 4328
Three-day notice to pay rent or vacate (See subhead: Sixty-day notice (See subhead: Thirty- or sixty-day no-
Three-day notice) tice)
Verdict forms Stalking, affirmative defense that tenant was victim of
Failure to pay rent, termination for . . . VF-4300 . . . 4328
Nonperformance of important obligation of Statutory damages on showing of defendant’s malice
lease/agreement, termination for . . . VF-4302 . . . 4341
I-79
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UNLAWF INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
UNLAWFUL DETAINER—Cont. UNLAWFUL DETAINER—Cont.
Subletting, no right to occupancy of property due to Verdict forms—Cont.
. . . 4300 Nonperformance of important obligation of
Sufficiency and service of notice lease/agreement, termination due to . . . VF-4302
Thirty- or sixty-day notice . . . 4307 Violation of lease/agreement, termination due to
Three-day notice (See subhead: Three-day notice) . . . VF-4302
Surrender of possession (See subhead: Notice, suffi- Violation of terms of lease/agreement, termination for
ciency and service of) Essential factual elements . . . 4304
Tenantability complaints, defense where termination in Verdict form . . . VF-4302
retaliation for . . . 4321 Waiver by acceptance of rent, affirmative defense of
Termination of tenancy (See subhead: Expiration of ten- . . . 4324
ancy) Warranty of habitability, breach of (See subhead: Habit-
ability, affirmative defense of implied warranty of)
Thirty- or sixty-day notice
Willfully withholding possession with knowledge of
Essential factual elements for termination of month-
termination, statutory damages for defendant’s
to-month tenancy . . . 4306
. . . 4341
Start of thirty- or sixty-day period . . . 4307
Sufficiency and service of notice of termination UNPAID WAGES (See WAGES, subhead: Nonpayment
. . . 4307 of wages)
Three-day notice
UNRUH CIVIL RIGHTS ACT (See CIVIL RIGHTS)
Default in rent (See subhead: Default in rent)
Failure to pay rent, termination for UNSPECIFIED TERM OF EMPLOYMENT (See
Essential factual elements . . . 4302 EMPLOYMENT CONTRACTS, subhead: Terminable
Verdict form . . . VF-4300 at will)
Nonperformance of important obligation under
lease/agreement, termination for USE
Essential factual elements . . . 4304 Consumer goods under warranty (See SONG-
Verdict form . . . VF-4302 BEVERLY CONSUMER WARRANTY ACT)
Nuisance or unlawful use, termination for . . . 4308; Highest and best use of property (See EMINENT DO-
4309 MAIN)
Start of three-day period . . . 4305 Loss of use of real property, damages for breach of con-
Sufficiency and service of three-day notice to pay tract to construct improvements resulting in . . . 354
rent or comply with terms or vacate Name or likeness, use of (See INVASION OF PRI-
General instruction . . . 4303 VACY, subhead: Appropriation or use of name or
Nuisance or unlawful use, termination for likeness)
. . . 4309 Rental agreement terminated for unlawful use of prem-
Reasonable estimate of amount of rent due ises . . . 4308; 4309
. . . 4303 Trade secret misappropriation (See TRADE SECRET
Violation of terms of lease/agreement, termination MISAPPROPRIATION)
for . . . 4305; VF-4302 Vehicle-use exception to going-and-coming rule
Waiver by acceptance of rent, affirmative defense of . . . 3725
. . . 4324
UVTA (See FRAUDULENT TRANSFERS, subhead:
Unlawful use, termination for (See subhead: Nuisance
Uniform Voidable Transactions Act (UVTA))
or unlawful use, termination for)
Value, reasonable rental . . . 4340
Verdict forms V
Affirmative defense of implied warranty of habitabil-
ity . . . VF-4301 VALUE
Breach of covenant or condition Breach of contract, damages for (See BREACH OF
Habitability, breach of implied warranty of CONTRACT, DAMAGES FOR)
. . . VF-4301 Fair market value (See FAIR MARKET VALUE)
Nonperformance of important obligation of Unlawful detainer, damages for reasonable rental value
lease/agreement, termination for . . . VF-4302 in claim of . . . 4340
Burden of proof (See subhead: Burden of proof) VEHICLES
Defense of implied warranty of habitability, affirma- Common carriers (See COMMON CARRIERS)
tive . . . VF-4301 Motor vehicles (See MOTOR VEHICLES AND HIGH-
Failure to pay rent, termination due to WAY SAFETY)
General form . . . VF-4300
Implied warranty of habitability, affirmative de- VERDICTS
fense of . . . VF-4301 Concluding instructions
Implied warranty of habitability, affirmative defense Deadlocked jury admonition . . . 5013
of . . . VF-4301 Find facts and follow law, duty to . . . 5000
I-80
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INDEX VERDIC
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
VERDICTS—Cont. VERDICTS—Cont.
Concluding instructions—Cont. Forms—Cont.
Polling of juror’s individual verdict in open court Fair market value in eminent domain proceedings
. . . 5009; 5017 (See EMINENT DOMAIN)
Drafting, procedure, and general instructions False imprisonment (See FALSE IMPRISONMENT)
Concluding instructions (See subhead: Concluding Family Rights Act (See FAMILY RIGHTS ACT)
instructions) Federal Employers’ Liability Act (FELA) (See FED-
FELA action, limitations period for . . . 2922 ERAL EMPLOYERS’ LIABILITY ACT (FELA))
Introduction to special verdict form . . . 5012 FEHA (See FAIR EMPLOYMENT AND HOUSING
Statute of limitations on FELA claim . . . 2922 ACT)
Fraud (See FRAUD)
Forms
Fraudulent employment contracts (See EMPLOY-
Abuse of process . . . VF-1504
MENT CONTRACTS)
Assault (See ASSAULT AND BATTERY)
Fraudulent transfers (See FRAUDULENT TRANS-
Battery (See ASSAULT AND BATTERY) FERS)
Below-cost sales (See UNFAIR PRACTICES ACT) General verdict forms for proceedings with single
Breach of contract, relating to defendant
Contract formation at issue . . . VF-303 Introduction to general verdict form . . . 5022
Economic relations, interference with (See IN- Multiple causes of action . . . VF-5001
TERFERENCE WITH ECONOMIC RELA- Single cause of action . . . VF-5000
TIONS) Horizontal restraints of trade (See CARTWRIGHT
Employment contract, breach of (See EMPLOY- ACT)
MENT CONTRACTS) Implied covenant of good faith and fair dealing (See
General form . . . VF-300 EMPLOYMENT CONTRACTS)
Cartwright Act (See CARTWRIGHT ACT) Insurance (See INSURANCE)
Civil rights (See CIVIL RIGHTS) Interference with economic relations (See INTER-
Conservatorship under Lanterman-Petris-Short Act FERENCE WITH ECONOMIC RELATIONS)
. . . VF-4000 Invasion of privacy (See INVASION OF PRIVACY)
Constructive discharge in violation of public policy Locality discrimination (See UNFAIR PRACTICES
(See EMPLOYMENT CONTRACTS, subhead: ACT)
Public policy violations) Loss leader activities (See UNFAIR PRACTICES
Conversion . . . VF-2100 ACT)
Criminal act, wrongful threat of . . . VF-302 Malicious prosecution (See MALICIOUS PROS-
Dangerous condition of public property (See DAN- ECUTION)
GEROUS CONDITION OF PUBLIC PROP- Minors (See MINORS, subhead: Negligence)
ERTY) Mistake as affirmative defense to contract action,
Deceit (See FRAUD) unilateral . . . VF-301
Defamation (See DEFAMATION) Motor vehicles and highway safety (See MOTOR
Delay VEHICLES AND HIGHWAY SAFETY)
False imprisonment, unnecessary delay in process- Multiple causes of action, damages on . . . VF-3920
ing or releasing plaintiff during . . . VF-1407 Negligence (See NEGLIGENCE)
Insurance benefits, unreasonable failure to pay or Nonpayment of wages (See WAGES)
delayed payment of . . . VF-2301 Nuisance (See NUISANCE)
Disability discrimination (See FAIR EMPLOYMENT Performance and breach . . . VF-300
AND HOUSING ACT) Premises liability (See PREMISES LIABILITY)
Discovery, delayed . . . VF-410 Privacy, invasion of (See INVASION OF PRIVACY)
Disparate impact discrimination under FEHA (See Products liability (See PRODUCTS LIABILITY)
FAIR EMPLOYMENT AND HOUSING ACT) Public policy violations (See EMPLOYMENT CON-
Disparate treatment discrimination under FEHA (See TRACTS)
FAIR EMPLOYMENT AND HOUSING ACT) Punitive damages (See TORT DAMAGES)
Duress as affirmative defense to contract action Recreational and sporting activities (See RECRE-
. . . VF-302 ATIONAL AND SPORTING ACTIVITIES)
Elder abuse and dependent adult civil protection act Religious creed discrimination (See FAIR EMPLOY-
(See ELDER ABUSE AND DEPENDENT MENT AND HOUSING ACT)
ADULT CIVIL PROTECTION ACT) Rule of reason (See CARTWRIGHT ACT)
Eminent domain proceedings (See EMINENT DO- Secret rebates (See UNFAIR PRACTICES ACT)
MAIN, subhead: Fair market value) Song-Beverly Consumer Warranty Act (See SONG-
Emotional distress (See EMOTIONAL DISTRESS) BEVERLY CONSUMER WARRANTY ACT)
Employment contracts (See EMPLOYMENT CON- Sporting activities (See RECREATIONAL AND
TRACTS) SPORTING ACTIVITIES)
Fair Employment and Housing Act (See FAIR EM- Statute of limitations regarding negligence actions
PLOYMENT AND HOUSING ACT) . . . VF-410
I-81
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VERDIC INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
VERDICTS—Cont. VICARIOUS LIABILITY—Cont.
Forms—Cont. Going-and-coming rule—Cont.
Tort damages (See TORT DAMAGES) Vehicle-use exception . . . 3725
Trespass (See TRESPASS) Harassment by supervisor, employer’s liability for (See
Tying arrangements (See CARTWRIGHT ACT) FAIR EMPLOYMENT AND HOUSING ACT, sub-
Undue hardship defense under FEHA (See FAIR head: Work environment harassment)
EMPLOYMENT AND HOUSING ACT) Independent contractors
Unfair Practices Act (See UNFAIR PRACTICES Nondelegable duty . . . 3713
ACT) Peculiar-risk doctrine applied to . . . 3708
Unlawful detainer (See UNLAWFUL DETAINER) Introduction . . . 3700
Wages (See WAGES) Joint liability for conduct of special employee
Workers’ compensation (See WORKERS’ COM- . . . 3707
PENSATION) Joint ventures . . . 3712
Wrongful death (See WRONGFUL DEATH, sub- Legal relationship not disputed . . . 3703
head: Tort damages) Motor vehicle, permissive use of (See MOTOR VE-
Wrongful termination (See EMPLOYMENT CON- HICLES AND HIGHWAY SAFETY)
TRACTS, subhead: Defenses to wrongful termina- Nondelegable duty . . . 3713
tion) Not within scope of employment, conduct deemed
General instructions (See subhead: Drafting, procedure, . . . 3723; 3726
and general instructions) Ostensible agents
Procedure (See subhead: Drafting, procedure, and gen- Liability for acts of . . . 3709
eral instructions) Physician-hospital relationship . . . 3714
Partnerships . . . 3711; 3712
VERTICAL RESTRAINTS (See CARTWRIGHT Peace officer’s misuse of authority . . . 3721
ACT) Peculiar-risk doctrine . . . 3708
VETERINARIANS Personal business of employee/representative . . . 3723
Expenses of treating tortious injury to pet, recovery of Ratification of agent’s conduct, subsequent . . . 3710
. . . 3903O Recreational or social or activities of employees
. . . 3724
VICARIOUS LIABILITY Right-to-control test of employee status . . . 3704
Approval of agent’s conduct, subsequent . . . 3710 Risk
Automobile, permissive use of (See MOTOR VE- Peculiar-risk doctrine . . . 3708
HICLES AND HIGHWAY SAFETY) Unauthorized conduct arising from inherent risk
Common carrier’s responsibility for negligence of offi- . . . 3722
cers, agents, or employees . . . 2901 Scope of employment or scope of authorization
Commuting (See subhead: Going-and-coming rule) Compensated travel time exception to going-and-
Comparative fault of plaintiff’s agent, affirmative de- coming rule . . . 3727
fense based on . . . 3702 Criminal conduct . . . 3722
Compensated travel time exception to going-and-coming Defined . . . 3720; 3721
rule . . . 3727 Deviation from employee’s work . . . 3723
Criminal conduct . . . 3722 General instruction . . . 3720
Essential factual elements . . . 3701 Going-and-coming rule (See subhead: Going-and-
Exceptions to going-and-coming rule coming rule)
Business errand exception . . . 3726 Introductory instruction . . . 3700
Compensated travel time exception . . . 3727 Legal relationship not disputed . . . 3703
Vehicle-use, exception for . . . 3725 Not within scope of employment . . . 3726
Existence of agency relationship disputed . . . 3705 Peace officer’s misuse of authority . . . 3721
Existence of employee status disputed . . . 3704 Personal business of employee/representative
Factors indicating employee status . . . 3723
Existence of employee status disputed . . . 3704 Social or recreational activities . . . 3724
Right-to-control test . . . 3704 Substantial deviation . . . 3723
Special employee . . . 3706 Unauthorized acts . . . 3722
First and second employers (See subhead: Temporary Social or recreational activities of employees . . . 3724
employment) Special employment
Foreseeability of conduct as element of scope of em- Denial of responsibility by lending employer
ployment . . . 3720 . . . 3706
General and special (first and second) employers (See Factors indicating employee status . . . 3706
subhead: Temporary employment) Joint responsibility . . . 3707
Going-and-coming rule Temporary employment (See subhead: Special employ-
Business errand exception . . . 3726 ment)
Compensated travel time exception . . . 3727 Tort liability asserted against principal, essential factual
General instruction . . . 3726 elements for . . . 3701
I-82
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INDEX WARRAN
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
VICARIOUS LIABILITY—Cont. WAGES—Cont.
Unauthorized conduct Nonpayment of wages—Cont.
Ratification of conduct, subsequent . . . 3710 Waiting-time penalty for nonpayment . . . 2704;
Scope of employment/authorization, when unauthor- VF-2703
ized acts are within . . . 3722 Overtime compensation
Vehicle, permissive use of (See MOTOR VEHICLES Administrative exemption, affirmative defense of
AND HIGHWAY SAFETY) . . . 2721
Verdict form . . . VF-3700 Executive exemption, affirmative defense of
. . . 2720
VICARIOUS RESPONSIBILITY (See VICARIOUS General instruction on nonpayment of . . . 2702
LIABILITY) Proof of overtime hours worked in claim for nonpay-
ment . . . 2703
VIDEOTAPE RECORDINGS
Verdict form . . . VF-2702
Evidence, recording and transcription as . . . 5018
Payroll records showing hours worked and wages paid
VIOLENCE . . . 2703
Civil rights violations (See CIVIL RIGHTS) Reporting time of employee, failure to pay . . . 2754
Psychotherapist’s duty to protect intended victim from Tort damages for loss of (See TORT DAMAGES, sub-
patient’s threat head: Earnings related damages)
Unpaid wages (See subhead: Nonpayment of wages)
Generally . . . 503A
Vacation time, failure to pay all vested . . . 2753
Affirmative defense of reasonable efforts to commu-
Verdict forms
nicate threat to victim and law enforcement
Minimum wage, nonpayment of . . . VF-2701
agency . . . 503B Nonpayment of wages, generally (See subhead: Non-
VOLUNTEERS payment of wages)
Emergency, liability for care rendered at scene of Overtime compensation, nonpayment of . . . VF-
2702
. . . 450B
Waiting-time penalty for nonpayment of wages
Nonemergency situations . . . 450A
. . . 2704; VF-2703
W WAITING-TIME PENALTY
Wages, damages for nonpayment of . . . 2704; VF-
WAGES 2703
Administrative exemption affirmative defense to non-
payment of overtime . . . 2721 WAIVER
California Equal Pay Act, violation of . . . 2740 Conduct, waiver arising from (See CONDUCT)
Damages for nonpayment of wages . . . 2704; VF- Express assumption of risk . . . 451
2703 Medical malpractice claim, affirmative defense to
Defense that worker was not hiring entity’s employee . . . 551
. . . 2705 Performance (See PERFORMANCE AND BREACH)
Equal Pay Act, violation of California . . . 2740 Right-of-way, driver or pedestrian’s waiver of . . . 702
Executive exemption affirmative defense to nonpayment Unlawful detainer, affirmative defense of waiver by ac-
of overtime . . . 2720 ceptance of rent in claim of . . . 4324
Minimum wage WARNINGS
General instruction on establishing claim for nonpay- Dangerous condition on public property (See DAN-
ment . . . 2701 GEROUS CONDITION OF PUBLIC PROPERTY)
Verdict form . . . VF-2701 Medical practitioner’s duty to warn (See MEDICAL
Nonpayment of wages MALPRACTICE)
Damages for . . . 2704; VF-2703 Premises liability . . . 1001
Defense that worker was not hiring entity’s em- Products liability (See PRODUCTS LIABILITY)
ployee . . . 2705 Railroad crossings (See RAILROAD CROSSINGS)
Final wages, waiting-time penalty for nonpayment of
. . . 2704; VF-2703 WARRANTIES
General instruction on essential factual elements for Consumer Warranty Act (See SONG-BEVERLY CON-
establishing nonpayment . . . 2700 SUMER WARRANTY ACT)
Minimum wage (See subhead: Minimum wage) Habitability, implied warranty of (See UNLAWFUL
Overtime compensation (See subhead: Overtime DETAINER, subhead: Habitability, affirmative de-
compensation) fense of implied warranty of)
Verdict forms Intent (See INTENT)
General form . . . VF-2700 Products liability (See PRODUCTS LIABILITY)
Minimum wage . . . VF-2701 Reliance on (See RELIANCE)
Waiting-time penalty for nonpayment . . . VF- Service agreement cost defined under Unfair Practices
2703 Act . . . 3303
I-83
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WARRAN INDEX
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
WARRANTIES—Cont. WORKERS’ COMPENSATION—Cont.
Unlawful detainer, affirmative defense of implied war- Co-employee as defendant
ranty of habitability regarding claim of Defense that employee’s injury covered by Workers’
General form . . . 4320 Compensation . . . 2810
Verdict form . . . VF-4301 Intoxicated co-employee, claim for injury caused by
Generally . . . 2812
WARRANTS Verdict form . . . VF-2805
False imprisonment (See FALSE IMPRISONMENT) Verdict forms
Search warrant (See CIVIL RIGHTS, subhead: Search Intoxicated co-employee, claim for injury caused
and search warrant) by . . . VF-2805
WEATHER Willful and unprovoked physical act of aggression
Dangerous condition of streets and highways, defense of by co-employee . . . VF-2804
nonliability for effect of weather on . . . 1122 Willful and unprovoked physical act of aggression
by co-employee
WHISTLEBLOWER PROTECTION Generally . . . 2811
Essential factual elements . . . 4603 Verdict form . . . VF-2804
False Claims Act, essential factual elements under Concealment of injury as exception to exclusivity rule,
. . . 4600; VF-4600 fraudulent
Health or safety complaint, retaliatory action by em- Generally . . . 2802
ployer for making . . . 4605 Verdict form . . . VF-2801
Protected disclosure by state employee . . . 4601; VF- Defective product injury as exception to exclusivity rule
4601 Generally . . . 2803
Same decision for legitimate reason, affirmative defense Verdict form . . . VF-2802
that employer would have made . . . 4602; VF-4601; Defenses
VF-4602 Co-employee’s defense that employee’s injury cov-
ered by Workers’ Compensation . . . 2810
WILLFUL ACTS General instruction that injury covered by Workers’
Malice (See MALICE) Compensation . . . 2800
Song-Beverly Consumer Warranty Act, civll penalty for Employer conduct unrelated to employment, exception
willful violation of . . . 3244 to exclusivity rule for . . . 2805
Suppression of evidence, willful . . . 204 Exceptions to exclusivity rule
Trade secret misappropriation, damages for willful Co-employee, injuries caused by (See subhead: Co-
. . . 4411 employee as defendant)
Workers’ Compensation claims for willful physical as- Defective product of employer, injury caused by
sault (See WORKERS’ COMPENSATION) Generally . . . 2803
Verdict form . . . VF-2802
WILLS Employer conduct unrelated to employment
Intentional interference with expected inheritance, tort . . . 2805
of . . . 2205 Fermino exception . . . 2805
WITHDRAWAL Fraudulent concealment of injury
Medical practitioner’s withdrawal from care of patient Generally . . . 2802
with insufficient notice . . . 509 Verdict form . . . VF-2801
Offer, revocation of . . . 308 Intoxicated co-employee, claim for injury caused by
Generally . . . 2812
WITNESSES Verdict form . . . VF-2805
Juror questioning of . . . 112; 5019 Power press guards, removal or noninstallation of
Testimony (See TESTIMONY) Generally . . . 2804
Verdict form . . . VF-2803
WORDS AND PHRASES (See DEFINITIONS; IN- Verdict forms
TERPRETATION OF WRITTEN AGREEMENTS) Defective product of employer, injury caused by
WORK ENVIRONMENT HARASSMENT (See . . . VF-2802
FAIR EMPLOYMENT AND HOUSING ACT, sub- Fraudulent concealment of injury . . . VF-2801
head: Work environment harassment) Intoxicated co-employee, claim for injury caused
by . . . VF-2805
WORKERS’ COMPENSATION Power press guards, removal or noninstallation of
Affirmative defenses (See subhead: Defenses) . . . VF-2803
Aggravation of injury caused by fraudulent concealment Willful physical assault (See subhead: Willful physi-
as exception to exclusivity rule cal assault)
Generally . . . 2802 Exclusivity rule, exceptions to (See subhead: Exceptions
Verdict form . . . VF-2801 to exclusivity rule)
Assault (See subhead: Willful physical assault) Fermino exception to exclusivity rule . . . 2805
I-84
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INDEX ZONING
[References are to the Judicial Council of California Civil Jury Instructions (CACI), e.g., 1900, and Verdict Forms, e.g.,
VF-1900.]
WORKERS’ COMPENSATION—Cont. WRITING—Cont.
Fraudulent concealment of injury as exception to exclu- Written agreements (See INTERPRETATION OF
sivity rule WRITTEN AGREEMENTS)
Generally . . . 2802
WRONGFUL ARREST (See FALSE IMPRISON-
Verdict form . . . VF-2801
MENT)
Intoxicated co-employee, claim for injury caused by
Generally . . . 2812 WRONGFUL BIRTH
Verdict form . . . VF-2805 Abortion, negligent failure to prevent birth after
Physical assault (See subhead: Willful physical assault) . . . 511
Point-of-operation guard for power press, injury caused Essential factual elements
by removal or noninstallation of . . . 2804 Genetic testing . . . 512
Power press guards, claim for injury caused by removal Sterilization/abortion . . . 511
or noninstallation of Genetic counseling and testing, failure to perform ap-
Generally . . . 2804 propriate . . . 512
Verdict form . . . VF-2803 Sterilization, negligent failure to prevent birth after
. . . 511
Removal or noninstallation of point-of-operation guard
for power press, injury caused by WRONGFUL DEATH
Generally . . . 2804 Federal Employers’ Liability Act (FELA) (See FED-
Verdict form . . . VF-2803 ERAL EMPLOYERS’ LIABILITY ACT (FELA))
Tort award damages, no deduction for workers’ com- Judgment creditor’s action against insurer, elements of
pensation benefits in . . . 3965 . . . 2360
Verdict forms Tort damages
Co-employee’s willful and unprovoked physical act Adult, death of . . . 3921; VF-3905
of aggression, claim for injury based on . . . VF- Minor child, parent’s recovery for death of
2804 . . . 3922; VF-3906
Defective product of employer . . . VF-2802 Verdict forms
Employers’ willful physical assault . . . VF-2800 Adult, death of . . . VF-3905
Exceptions to exclusivity rule (See subhead: Excep- Minor child, parent’s recovery for death of
tions to exclusivity rule) . . . VF-3906
Fraudulent concealment of injury . . . VF-2801 Verdict forms (See subhead: Tort damages)
Intoxicated co-employee, claim for injury caused by
. . . VF-2805 WRONGFUL LIFE
Power press guards, claim for injury caused by re- Medical negligence claim, essential factual elements of
moval or noninstallation of . . . VF-2803 . . . 513
Willful physical assault
WRONGFUL TERMINATION
Co-employee’s act of aggression, claim for injury
Generally (See EMPLOYMENT CONTRACTS)
based on
Discrimination claims under Fair Employment and
Generally . . . 2811
Housing Act (See FAIR EMPLOYMENT AND
Verdict form . . . VF-2804
HOUSING ACT)
Employer’s assault, establishing claim for
Military status, employment discrimination prohibited
Generally . . . 2801
based on . . . 2441
Verdict form . . . VF-2800
Whistleblower protection (See WHISTLEBLOWER
Verdict forms
PROTECTION)
Co-employee’s act of aggression, claim for injury
based on . . . VF-2804 WRONGFUL USE OF PROCEEDINGS (See MALI-
Employer’s assault, establishing claim for CIOUS PROSECUTION)
. . . VF-2800
WORKPLACE ACCOMMODATION (See FAIR Z
EMPLOYMENT AND HOUSING ACT)
ZONING
WRITING Condemned property, effect of zoning change on highest
Defamation (See DEFAMATION) and best use of . . . 3503
I-85
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This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, 
                store.lexisnexis.com, for public and internal court use