Judicial_Council_of_California_Civil_Jury_Instructions_May_2023_Supp
                     Judicial Council of California
Civil Jury Instructions
CACI*
* Pronounced “Casey”
Supplement With New and Revised Instructions
As approved at
the Judicial Council’s Rules Committee April 2023 meeting
and the Judicial Council May 2023 Meeting
Judicial Council of California
Advisory Committee on Civil Jury Instructions
Hon. Adrienne M. Grover, Chair
LexisNexis Matthew Bender
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Preface to CACI Updates
This supplement to the 2023 edition of CACI includes a number of additions and changes to
the instructions, which were first published in 2003. In providing these updates, the Judicial
Council Advisory Committee on Civil Jury Instructions is fulfilling its charge to maintain
CACI. The committee is also striving to add instructions in new areas of the law and to
augment existing areas.
The impetus for the revisions came from several sources including CACI users who detected
changes in the law or who simply sought to do a better job of explaining the law in plain
English. Responding to feedback from users is consistent with the Advisory Committee’s goal
to act as a vehicle for maintaining CACI as the work product of the legal community. We hope
that our hundreds of contributors view our role in the same way and that they will continue to
support us.
May 2023
Hon. Adrienne M. Grover
Court of Appeal, Sixth District
Chair, Advisory Committee on Civil Jury Instructions
____________________________________________________________________________
The Advisory Committee on Civil Jury Instructions welcomes comments. Send comments
by email to: [email protected]
Or you may send print comments by regular mail to:
Advisory Committee on Civil Jury Instructions—Attn. Eric Long
Legal Services Office
455 Golden Gate Avenue
San Francisco, CA 94102-3588
iii

Table of New and Revised Judicial
Council of California Civil Jury
Instructions (CACI)
May 2023
This supplement to the 2023 Edition of CACI includes all of the new and revised
California Civil Jury Instructions approved by the Judicial Council’s Rules Committee at
its April 2023 meeting and the Judicial Council of California at its May 2023 meeting.
EVIDENCE
221. Conflicting Expert Testimony (sources and authority)
NEGLIGENCE
403. Standard of Care for Person with a Physical Disability (revised)
425. “Gross Negligence” Explained (sources and authority)
MEDICAL NEGLIGENCE
512. Wrongful Birth—Essential Factual Elements (revised)
513. Wrongful Life—Essential Factual Elements (revised)
PROFESSIONAL NEGLIGENCE
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit (Code Civ.
Proc., § 340.6) (sources and authority)
COMMON CARRIERS
904. Duty of Common Carrier Toward Passengers With Illness or Disability (revised)
PREMISES LIABILITY
1010. Affirmative Defense—Recreation Immunity—Exceptions (Civ. Code, § 846) (revised)
DANGEROUS CONDITION OF PUBLIC PROPERTY
1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov. Code, § 835) (sources
and authority)
CONVERSION
2101. Trespass to Chattels—Essential Factual Elements (sources and authority)
FAIR EMPLOYMENT AND HOUSING ACT
2500. Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a)) (sources and authority)
2508. Failure to File Timely Administrative Complaint—Plaintiff Alleges Continuing Violation (Gov.
Code, § 12960(e)) (revised)
2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements (sources and
authority)
v
Table of New and Revised Judicial Council
2541. Disability Discrimination—Reasonable Accommodation—Essential Factual Elements (Gov. Code,
§ 12940(m)) (revised)
2548. Disability Discrimination─Refusal to Make Reasonable Accommodation in Housing (Gov. Code,
§ 12927(c)(1)) (sources and authority)
CALIFORNIA FAMILY RIGHTS ACT
2600. Violation of CFRA Rights—Essential Factual Elements (revised)
2601. Eligibility (sources and authority)
2603. “Comparable Job” Explained (sources and authority)
2610. Affirmative Defense—No Certification From Health Care Provider (sources and authority)
2611. Affirmative Defense—Fitness for Duty Statement (sources and authority)
LABOR CODE VIOLATIONS
2704. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218) (sources and authority)
2740. Violation of Equal Pay Act—Essential Factual Elements (Lab. Code, § 1197.5) (sources and
authority)
VF-2708. Meal Break Violations—Employer Records Showing Noncompliance (Lab. Code, §§ 226.7,
512) (new)
VF-2709. Meal Break Violations—Inaccurate or Missing Employer Records (Lab. Code, §§ 226.7, 512)
(new)
ELDER ABUSE AND DEPENDENT ADULT CIVIL PROTECTION ACT
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code, § 15610.57) (sources and authority)
SONG-BEVERLY CONSUMER WARRANTY ACT
3200. Failure to Repurchase or Replace Consumer Good After Reasonable Number of Repair
Opportunities—Essential Factual Elements (Civ. Code, § 1793.2(d)) (sources and authority)
3210. Breach of Implied Warranty of Merchantability—Essential Factual Elements (sources and
authority)
VICARIOUS RESPONSIBILITY
3714. Ostensible Agency—Physician-Hospital Relationship—Essential Factual Elements (sources and
authority)
DAMAGES
3948. Punitive Damages—Individual and Corporate Defendants (Corporate Liability Based on Acts of
Named Individual)—Bifurcated Trial (First Phase) (sources and authority)
CONSTRUCTION LAW
4562. Payment for Construction Services Rendered—Essential Factual Elements (Bus. & Prof. Code,
§ 7031(a), (e)) (sources and authority)
WHISTLEBLOWER PROTECTION
4602. Affirmative Defense─Same Decision (Gov. Code, § 8547.8(e)) (sources and authority)
4603. Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5) (revised)
4604. Affirmative Defense─Same Decision (Lab. Code, § 1102.6) (sources and authority)
CONSUMERS LEGAL REMEDIES ACT
vi
Table of New and Revised Judicial Council
4700. Consumers Legal Remedies Act—Essential Factual Elements (Civ. Code, § 1770) (sources and
authority)
vii

Judicial Council Advisory Committee on Civil Jury Instructions
HON. ADRIENNE M. GROVER
Chair
COMMITTEE MEMBERS
HON. SUZANNE RAMOS BOLANOS
MS. KATHLEEN A. BREWER
HON. TANA L. COATES
MR. NICHOLAS P. CONNON
HON. ROBERT P. DAHLQUIST
HON. JOHN P. DEVINE
MR. PAUL T. HAYDEN
MR. MICHAEL A. KELLY
MS. MICHELLE G. LEE
MR. JOSEPH P. MCMONIGLE
HON. MARLA J. MILLER
HON. MARGARET L. OLDENDORF
HON. IOANA PETROU
MS. MELINDA PILLING
MR. JULIAN W. POON
MR. RAHUL RAVIPUDI
MR. TODD M. SCHNEIDER
HON. RICHARD L. SEABOLT
HON. DEBORAH C. SERVINO
HON. MARK WOOD SNAUFFER
MS. CHRISTINE SPAGNOLI
HON. JOHN SHEPARD WILEY JR.
ix
JC Advisory Committee
ACTING ADMINISTRATIVE DIRECTOR, STAFF TO THE JUDICIAL COUNCIL
MILLICENT TIDWELL
LEGAL SERVICES OFFICE
MS. DEBORAH BROWN, CHIEF COUNSEL
MR. ERIC LONG, ATTORNEY
x
Judicial Council of California
Chair
Hon. Patricia Guerrero
Supreme Court
Hon. Carol A. Corrigan
Courts of Appeal
Hon. Carin T. Fujisaki
Hon. Brad R. Hill
Hon. Marsha G. Slough
Trial Courts
Hon. Maria O. Anderson
Hon. Maria Lucy Armendariz
Hon. C. Todd Bottke
Hon. Kevin C. Brazile
Hon. Kyle S. Brodie
Hon. Jonathan B. Conklin
Hon. Samuel K. Feng
Hon. Harold W. Hopp
Hon. Ann C. Moorman
Hon. David M. Rubin
Legislature
Hon. Brian Maienschein
Hon. Thomas J. Umberg
State Bar
Mr. David D. Fu
Ms. Rachel W. Hill
Ms. Gretchen Nelson
Mr. Maxwell V. Pritt
Advisory Members
Hon. Judith K. Dulcich
Ms. Rebecca J. Fleming
Mr. Shawn C. Landry
Hon. Kimberly Merrifield
Hon. Glenn Mondo
Hon. David Rosenberg
Mr. David H. Yamasaki
xi
Judicial Council of California
Secretary
Millicent Tidwell
The Judicial Council is the policymaking body of the California courts. Under the leadership of the Chief
Justice and in accordance with the California Constitution, the council is responsible for ensuring the
consistent, independent, impartial, and accessible administration of justice.
xii
221. Conflicting Expert Testimony
If the expert witnesses disagreed with one another, you should weigh
each opinion against the others. You should examine the reasons given
for each opinion and the facts or other matters that each witness relied
on. You may also compare the experts’ qualifications.
New September 2003
Directions for Use
Unless the issue is one that can be resolved only with expert testimony, the jury
should not be instructed that they must accept the entire testimony of the expert
whose testimony appears to be entitled to greater weight. (Santa Clara County
Flood Control and Water Conservation Dist. v. Freitas (1960) 177 Cal.App.2d 264,
268–269 [2 Cal.Rptr. 129].)
For an instruction on expert witnesses generally, see CACI No. 219, Expert Witness
Testimony. For an instruction on hypothetical questions, see CACI No. 220,
Experts—Questions Containing Assumed Facts.
Sources and Authority
• “[C]redibility of expert witnesses is a matter for the jury after proper instructions
from the court.” (Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180
Cal.App.3d 1244, 1265 [226 Cal.Rptr. 306].)
• “[W]e rely upon the rule of Sargon [Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747 [149 Cal.Rptr.3d 614, 288 P.3d
1237]] that although trial courts ‘have a substantial “gatekeeping” responsibility’
in evaluating proposed expert opinion, the gate tended is not a partisan
checkpoint.” (Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 492
[199 Cal.Rptr.3d 583], internal citation omitted.)
• “Complex questions of medical causation are prone to uncertainty. . . . It is
therefore imperative that the party without the burden of proof be allowed to
suggest alternative causes, or the uncertainty of causation, to less than a
reasonable medical probability. To withhold such information from the jury is to
deprive it of relevant information in assessing whether the plaintiff has met its
ultimate burden of persuasion. And, it would improperly transfer from the jury to
the court the responsibility for resolving conflicts between competing expert
opinions.” (Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123, 133–134 [294
Cal.Rptr.3d 500], internal citation and footnote omitted.)
Secondary Sources
1
CACI No. 221
7 Witkin, California Procedure (5th ed. 2008) Trial, § 307
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.70 (Matthew
Bender)
2
403. Standard of Care for Person with a Physical Disability
A person with a physical disability is required to use the amount of care
that a reasonably careful person who has the same physical disability
would use in the same situation.
New September 2003; Revised May 2023
Directions for Use
By “same” disability, this instruction is referring to the effect of the disability, not
the cause.
Sources and Authority
• Liability of Person of “Unsound Mind.” Civil Code section 41.
• “[A] person [whose faculties are impaired] is bound to use that care which a
person of ordinary prudence with faculties so impaired would use in the same
circumstances.” (Conjorsky v. Murray (1955) 135 Cal.App.2d 478, 482 [287 P.2d
505].)
• “The jury was properly instructed that negligence is failure to use ordinary care
and that ordinary care is that care which persons of ordinary prudence exercise
in the management of their own affairs. A person with faculties impaired is held
to the same degree of care and no higher. He is bound to use that care which a
person of ordinary prudence with faculties so impaired would use in the same
circumstances.” (Jones v. Bayley (1942) 49 Cal.App.2d 647, 654 [122 P.2d 293].)
• “We conclude sudden mental illness may not be posed as a defense to harmful
conduct and that the harm caused by such individual’s behavior shall be judged
on the objective reasonable person standard in the context of a negligence action
as expressed in Civil Code section 41.” (Bashi v. Wodarz (1996) 45 Cal.App.4th
1314, 1323 [53 Cal.Rptr.2d 635].)
• Restatement Second of Torts, section 283B, provides: “Unless the actor is a
child, his insanity or other mental deficiency does not relieve the actor from
liability for conduct which does not conform to the standard of a reasonable man
under like circumstances.”
• Restatement Second of Torts, section 283C, provides: “If the actor is ill or
otherwise physically disabled, the standard of conduct to which he must conform
to avoid being negligent is that of a reasonable man under like disability.”
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.21.2
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
3
425. “Gross Negligence” Explained
Gross negligence is the lack of any care or an extreme departure from
what a reasonably careful person would do in the same situation to
prevent harm to oneself or to others.
A person can be grossly negligent by acting or by failing to act.
New April 2008; Revised December 2015
Directions for Use
Give this instruction if a particular statute that is at issue in the case creates a
distinction based on a standard of gross negligence. (See, e.g., Gov. Code,
§ 831.7(c)(1)(E) [immunity for public entity or employee to liability to participant in
or spectator to hazardous recreational activity does not apply if act of gross
negligence is proximate cause of injury].) Courts generally resort to this definition if
gross negligence is at issue under a statute. (See, e.g., Wood v. County of San
Joaquin (2003) 111 Cal.App.4th 960, 971 [4 Cal.Rptr.3d 340].)
Give this instruction with CACI No. 400, Negligence—Essential Factual Elements,
but modify that instruction to refer to gross negligence.
This instruction may also be given if case law has created a distinction between
gross and ordinary negligence. For example, under the doctrine of express
assumption of risk, a signed waiver of liability may release liability for ordinary
negligence only, not for gross negligence. (See City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095]; see also
CACI No. 451, Affırmative Defense—Contractual Assumption of Risk.) Once the
defendant establishes the validity and applicability of the release, the plaintiff must
prove gross negligence by a preponderance of the evidence. (Eriksson v. Nunnink
(2015) 233 Cal.App.4th 708, 732, 734 [183 Cal.Rptr.3d 234].) A lack of gross
negligence can be found as a matter of law if the plaintiff’s showing is insufficient
to suggest a triable issue of fact. (See Grebing v. 24 Hour Fitness USA, Inc. (2015)
234 Cal.App.4th 631, 638–639 [184 Cal.Rptr.3d 155]; cf. Jimenez v. 24 Hour
Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555 [188 Cal.Rptr.3d 228] [whether
conduct constitutes gross negligence is generally a question of fact, depending on
the nature of the act and the surrounding circumstances shown by the evidence].)
Sources and Authority
• “ ‘Gross negligence’ long has been defined in California and other jurisdictions
as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the
ordinary standard of conduct.’ ” ’ ” (City of Santa Barbara, supra, 41 Cal.4th at
p. 754, internal citations omitted.)
• “By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton
negligence” ’) describes conduct by a person who may have no intent to cause
4
CACI No. 425
harm, but who intentionally performs an act so unreasonable and dangerous that
he or she knows or should know it is highly probable that harm will result.”
(City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4, internal citations
omitted.)
• “California does not recognize a distinct cause of action for ‘gross negligence’
independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th
826, 856 [120 Cal.Rptr.3d 90].)
• “Gross negligence is pleaded by alleging the traditional elements of negligence:
duty, breach, causation, and damages. However, to set forth a claim for ‘gross
negligence’ the plaintiff must allege extreme conduct on the part of the
defendant.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072,
1082 [122 Cal.Rptr.3d 22], internal citation omitted.)
• “The theory that there are degrees of negligence has been generally criticized by
legal writers, but a distinction has been made in this state between ordinary and
gross negligence. Gross negligence has been said to mean the want of even scant
care or an extreme departure from the ordinary standard of conduct.” (Van Meter
v. Bent Constr. Co. (1956) 46 Cal.2d 588, 594 [297 P.2d 644], internal citation
omitted.)
• “Numerous California cases have discussed the doctrine of gross negligence.
Invariably these cases have turned upon an interpretation of a statute which has
used the words ‘gross negligence’ in the text.” (Cont’l Ins. Co. v. Am. Prot.
Indus. (1987) 197 Cal.App.3d 322, 329 [242 Cal.Rptr. 784].)
• “[I]n cases involving a waiver of liability for future negligence, courts have held
that conduct that substantially or unreasonably increased the inherent risk of an
activity or actively concealed a known risk could amount to gross negligence,
which would not be barred by a release agreement. Evidence of conduct that
evinces an extreme departure from manufacturer’s safety directions or an
industry standard also could demonstrate gross negligence. Conversely, conduct
demonstrating the failure to guard against, or warn of, a dangerous condition
typically does not rise to the level of gross negligence.” (Anderson v. Fitness
Internat., LLC (2016) 4 Cal.App.5th 867, 881 [208 Cal.Rptr.3d 792], internal
citations omitted.)
• “[P]ublic policy generally precludes enforcement of an agreement that would
remove an obligation to adhere to even a minimal standard of care. Applying
that general rule here, we hold that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child
who participates in a recreational camp designed for the needs of such children
violates public policy and is unenforceable.” (City of Santa Barbara, supra, 41
Cal.4th at p. 777, original italics.)
• “ ‘Prosser on Torts (1941) page 260, also cited by the Van Meter court for its
definition of gross negligence, reads as follows: “Gross Negligence. This is very
great negligence, or the want of even scant care. It has been described as a
failure to exercise even that care which a careless person would use. Many
5
CACI No. 425
courts, dissatisfied with a term so devoid of all real content, have interpreted it
as requiring wilful misconduct, or recklessness, or such utter lack of all care as
will be evidence of either—sometimes on the ground that this must have been
the purpose of the legislature. But most courts have considered that ‘gross
negligence’ falls short of a reckless disregard of consequences, and differs from
ordinary negligence only in degree, and not in kind. So far as it has any
accepted meaning, it is merely an extreme departure from the ordinary standard
of care.” ’ ” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358
[257 Cal.Rptr. 356], original italics, internal citations omitted.)
• “In assessing where on the spectrum a particular negligent act falls, ‘ “[t]he
amount of care demanded by the standard of reasonable conduct must be in
proportion to the apparent risk. As the danger becomes greater, the actor is
required to exercise caution commensurate with it.” ’ ” (Hass v. RhodyCo
Productions (2018) 26 Cal.App.5th 11, 32 [236 Cal.Rptr.3d 682].)
• “[A]lthough the existence of gross negligence is a matter generally for the trier
of fact, it may be determined as a matter of law on summary judgment in an
appropriate case.” (Joshi v. Fitness Internat., LLC (2022) 80 Cal.App.5th 814,
828 [295 Cal.Rptr.3d 572], internal citation omitted.)
• “The Legislature has enacted numerous statutes . . . which provide immunity to
persons providing emergency assistance except when there is gross negligence.
(See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good
faith renders emergency care at the scene of an emergency occurring outside the
place and course of nurse’s employment unless the nurse is grossly negligent];
Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves on-
call in a hospital emergency room who in good faith renders emergency
obstetrical services unless the physician was grossly negligent, reckless, or
committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for
licensed physician who in good faith and without compensation renders
voluntary emergency medical assistance to a participant in a community college
or high school athletic event for an injury suffered in the course of that event
unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706
[immunity for certified respiratory therapist who in good faith renders emergency
care at the scene of an emergency occurring outside the place and course of
employment unless the respiratory therapist was grossly negligent]; Bus. & Prof.
Code, § 4840.6 [immunity for a registered animal health technician who in good
faith renders emergency animal health care at the scene of an emergency unless
the animal health technician was grossly negligent]; Civ. Code, § 1714.2
[immunity to a person who has completed a basic cardiopulmonary resuscitation
course for cardiopulmonary resuscitation and emergency cardiac care who in
good faith renders emergency cardiopulmonary resuscitation at the scene of an
emergency unless the individual was grossly negligent]; Health & Saf. Code,
§ 1799.105 [immunity for poison control center personnel who in good faith
provide emergency information and advice unless they are grossly negligent];
Health & Saf. Code, § 1799.106 [immunity for a firefighter, police officer or
6
CACI No. 425
other law enforcement officer who in good faith renders emergency medical
services at the scene of an emergency unless the officer was grossly negligent];
Health & Saf. Code, § 1799.107 [immunity for public entity and emergency
rescue personnel acting in good faith within the scope of their employment
unless they were grossly negligent].)” (Decker, supra, 209 Cal.App.3d at pp.
356–357.)
• “The jury here was instructed: ‘It is the duty of one who undertakes to perform
the services of a police officer or paramedic to have the knowledge and skills
ordinarily possessed and to exercise the care and skill ordinarily used in like
cases by police officers or paramedics in the same or similar locality and under
similar circumstances. A failure to perform such duty is negligence. [para.] The
standard to be applied in this case is gross negligence. The term gross
negligence means the failure to provide even scant care or an extreme departure
from the ordinary standard of conduct.’ ” (Wright v. City of L.A. (1990) 219
Cal.App.3d 318, 343 [268 Cal.Rptr. 309] [construing “gross negligence” under
Health & Saf. Code, § 1799.106, which provides that a police officer or
paramedic who renders emergency medical services at the scene of an
emergency shall only be liable in civil damages for acts or omissions performed
in a grossly negligent manner or not performed in good faith].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1000
Advising and Defending Corporate Directors and Officers (Cont.Ed.Bar) § 3.13
1 Levy et al., California Torts, Ch. 1, General Principles of Liability, § 1.01
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, §§ 380.10,
380.171 (Matthew Bender)
7
512. Wrongful Birth—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[name of defendant] failed to inform [him/her/nonbinary pronoun] of the
risk that [he/she/nonbinary pronoun] would have a child with a [genetic
impairment/disability]. To establish this claim, [name of plaintiff] must
prove all of the following:
[1. That [name of defendant] negligently failed to [diagnose/ [or] warn
[name of plaintiff] of] the risk that [name of child] would be born
with a [genetic impairment/disability];]
[1. [or]
[1. That [name of defendant] negligently failed to [perform
appropriate tests/advise [name of plaintiff] of tests] that would
more likely than not have disclosed the risk that [name of child]
would be born with a [genetic impairment/disability];]
2. That [name of child] was born with a [genetic
impairment/disability];
3. That if [name of plaintiff] had known of the [genetic impairment/
disability], [insert name of mother] would not have conceived [name
of child] [or would not have carried the fetus to term]; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff] to have to pay extraordinary expenses
to care for [name of child].
New September 2003; Revised April 2007, May 2023
Directions for Use
The general medical negligence instructions on the standard of care and causation
(see CACI Nos. 500–502) may be used in conjunction with this instruction. Read
also CACI No. 513, Wrongful Life—Essential Factual Elements, if the parents’ cause
of action for wrongful birth is joined with the child’s cause of action for wrongful
life.
In element 1, select the first option if the claim is that the defendant failed to
diagnose or warn the plaintiff of a possible genetic impairment. Select the second
option if the claim is that the defendant failed to order or advise of available genetic
testing. In a testing case, there is no causation unless the chances that the test would
disclose the impairment were at least 50 percent. (See Simmons v. West Covina
Medical Clinic (1989) 212 Cal.App.3d 696, 702–703 [260 Cal.Rptr. 772].)
8
CACI No. 512
Sources and Authority
• “Claims for ‘wrongful life’ are essentially actions for malpractice based on
negligent genetic counseling and testing.” (Gami v. Mullikin Medical Center
(1993) 18 Cal.App.4th 870, 883 [22 Cal.Rptr.2d 819].)
• “[A]s in any medical malpractice action, the plaintiff must establish: ‘(1) the
duty of the professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligent conduct and the
resulting injury; and (4) actual loss or damage resulting from the professional’s
negligence.’ ” (Gami, supra, 18 Cal.App.4th at p. 877.)
• “A mere 20 percent chance does not establish a ‘reasonably probable causal
connection’ between defendants’ negligent failure to provide [a genetic] test and
plaintiffs’ injuries. A less than 50-50 possibility that defendants’ omission caused
the harm does not meet the requisite reasonable medical probability test of
proximate cause.” (Simmons, supra, 212 Cal.App.3d at pp. 702–703.)
• “[W]e conclude that while a plaintiff-child in a wrongful life action may not
recover general damages for being born impaired as opposed to not being born
at all, the child—like his or her parents—may recover special damages for the
extraordinary expenses necessary to treat the hereditary ailment.” (Turpin v.
Sortini (1982) 31 Cal.3d 220, 239 [182 Cal.Rptr. 337, 643 P.2d 954].)
• “Although the parents and child cannot, of course, both recover for the same
medical expenses, we believe it would be illogical and anomalous to permit only
parents, and not the child, to recover for the cost of the child’s own medical
care.” (Turpin, supra, 31 Cal.3d at p. 238.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1110–1118
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.22a, 9.23b
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)
9
513. Wrongful Life—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] was negligent because
[he/she/nonbinary pronoun] failed to inform [name of plaintiff]’s parents of
the risk that [he/she/nonbinary pronoun] would be born with a [genetic
impairment/disability]. To establish this claim, [name of plaintiff] must
prove all of the following:
[1. That [name of defendant] negligently failed to [diagnose/ [or] warn
[name of plaintiff]’s parents of] the risk that [name of plaintiff]
would be born with a [genetic impairment/disability];]
[1. [or]
[1. That [name of defendant] negligently failed to [perform
appropriate tests/advise [name of plaintiff]’s parents of tests] that
would more likely than not have disclosed the risk that [name of
plaintiff] would be born with a [genetic impairment/disability];]
2. That [name of plaintiff] was born with a [genetic
impairment/disability];
3. That if [name of plaintiff]’s parents had known of the risk of
[genetic impairment/disability], [his/her/nonbinary pronoun]
mother would not have conceived [him/her/nonbinary pronoun] [or
would not have carried the fetus to term]; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s parents to have to pay extraordinary
expenses for [name of plaintiff].
New September 2003; Revised April 2007, April 2008, November 2019, May 2023
Directions for Use
The general medical negligence instructions on the standard of care and causation
(see CACI Nos. 500–502) may be used in conjunction with this instruction. Read
also CACI No. 512, Wrongful Birth—Essential Factual Elements, if the parents’
cause of action for wrongful birth is joined with the child’s cause of action for
wrongful life.
In element 1, select the first option if the claim is that the defendant failed to
diagnose or warn the plaintiff of a possible genetic impairment. Select the second
option if the claim is that the defendant failed to order or advise of available genetic
testing. In a testing case, there is no causation unless the chances that the test would
disclose the impairment were at least 50 percent. (See Simmons v. West Covina
Medical Clinic (1989) 212 Cal.App.3d 696, 702–703 [260 Cal.Rptr. 772].)
In order for this instruction to apply, the genetic impairment must result in a
10
CACI No. 513
physical or mental disability. This is implied by the fourth element in the
instruction.
Sources and Authority
• No Wrongful Life Claim Against Parent. Civil Code section 43.6(a).
• “[I]t may be helpful to recognize that although the cause of action at issue has
attracted a special name—‘wrongful life’—plaintiff’s basic contention is that her
action is simply one form of the familiar medical or professional malpractice
action. The gist of plaintiff’s claim is that she has suffered harm or damage as a
result of defendants’ negligent performance of their professional tasks, and that,
as a consequence, she is entitled to recover under generally applicable common
law tort principles.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229 [182 Cal.Rptr.
337, 643 P.2d 954].)
• “Claims for ‘wrongful life’ are essentially actions for malpractice based on
negligent genetic counseling and testing.” (Gami v. Mullikin Medical Center
(1993) 18 Cal.App.4th 870, 883 [22 Cal.Rptr.2d 819].)
• “[W]e conclude that while a plaintiff-child in a wrongful life action may not
recover general damages for being born impaired as opposed to not being born
at all, the child—like his or her parents—may recover special damages for the
extraordinary expenses necessary to treat the hereditary ailment.” (Turpin, supra,
31 Cal.3d at p. 239.)
• “There is no loss of earning capacity caused by the doctor in negligently
permitting the child to be born with a genetic defect that precludes earning a
living.” (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 614 [208
Cal.Rptr. 899].)
• “A mere 20 percent chance does not establish a ‘reasonably probable causal
connection’ between defendants’ negligent failure to provide [a] test and
plaintiffs’ injuries. A less than 50-50 possibility that defendants’ omission caused
the harm does not meet the requisite reasonable medical probability test of
proximate cause.” (Simmons, supra, 212 Cal.App.3d at pp. 702–703, internal
citations omitted.)
• “Wrongful life claims are actions brought on behalf of children, while wrongful
birth claims refer to actions brought by parents. California courts do recognize a
wrongful life claim by an ‘impaired’ child for special damages (but not for
general damages), when the physician’s negligence is the proximate cause of the
child’s need for extraordinary medical care and training. No court, however, has
expanded tort liability to include wrongful life claims by children born without
any mental or physical impairment.” (Alexandria S. v. Pac. Fertility Medical Ctr.
(1997) 55 Cal.App.4th 110, 122 [64 Cal.Rptr.2d 23], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1112–1118
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.22a, 9.23b
11
CACI No. 513
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)
12
610. Affirmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit (Code Civ. Proc., § 340.6)
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that before [insert date one year before date of
filing] [name of plaintiff] knew, or with reasonable diligence should have
discovered, the facts of [name of defendant]’s alleged wrongful act or
omission.
[If, however, [name of plaintiff] proves
[Choose one or more of the following three options:]
[that [he/she/nonbinary pronoun/it] did not sustain actual injury until
on or after [insert date one year before date of filing][,/; or]]
[that on or after [insert date one year before date of filing] [name of
defendant] continued to represent [name of plaintiff] regarding the specific
subject matter in which the wrongful act or omission occurred[,/; or]]
[that on or after [insert date one year before date of filing]
[he/she/nonbinary pronoun/it] was under a legal or physical disability that
restricted [his/her/nonbinary pronoun/its] ability to file a lawsuit[,/;]]
the period within which [name of plaintiff] had to file the lawsuit is
extended for the amount of time that [insert tolling provision, e.g., [name
of defendant] continued to represent [name of plaintiff]].]
New April 2007; Revised April 2009, May 2020
Directions for Use
Use CACI No. 611, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—Four-Year Limit, if the four-year limitation provision is at issue.
The court may need to define the term “actual injury” depending on the facts and
circumstances of the particular case.
If no tolling provision from Code of Civil Procedure section 340.6 is at issue, read
only through the end of the first paragraph. Read the rest of the instruction if there
is a question of fact concerning a tolling provision. If so, the verdict form should
ask the jury to find (1) the “discovery” date (the date on which the plaintiff
discovered or knew of facts that would have caused a reasonable person to suspect
that the person had suffered harm that was caused by someone’s wrongful conduct);
(2) whether the tolling provision applies; and (3) if so, for what period of time. The
court can then add the additional time to the discovery date and determine whether
the action is timely.
13
CACI No. 610
Sources and Authority
• Statute of Limitation for Attorney Malpractice. Code of Civil Procedure section
340.6.
• Persons Under Disabilities. Code of Civil Procedure section 352.
• “Under section 340.6, the one-year limitations period commences when the
plaintiff actually or constructively discovers the facts of the wrongful act or
omission, but the period is tolled until the plaintiff sustains actual injury. That is
to say, the statute of limitations will not run during the time the plaintiff cannot
bring a cause of action for damages from professional negligence.” (Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751 [76
Cal.Rptr.2d 749, 958 P.2d 1062].)
• “Summary judgment was proper under section 340.6, subdivision (a)’s one-year
limitations period only if the undisputed facts compel the conclusion that
[plaintiff] was on inquiry notice of his claim more than one year before the
complaint was filed. Inquiry notice exist where ‘the plaintiffs have reason to at
least suspect that a type of wrongdoing has injured them.’ ‘ “A plaintiff need not
be aware of the specific ‘facts’ necessary to establish the claim; that is a process
contemplated by pretrial discovery. Once the plaintiff has a suspicion of
wrongdoing, and therefore an incentive to sue, she must decide whether to file
suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff
must go find the facts; she cannot wait for the facts to find her.” [Citation.]’ ”
(Genisman v. Carley (2018) 29 Cal.App.5th 45, 50–51 [239 Cal.Rptr.3d 780],
internal citation omitted.)
• “ ‘ “[S]ubjective suspicion is not required. If a person becomes aware of facts
which would make a reasonably prudent person suspicious, he or she has a duty
to investigate further and is charged with knowledge of matters which would
have been revealed by such an investigation.” [Citation.]’ ” (Genisman, supra, 29
Cal.App.5th at p. 51.)
• “For purposes of section 340.6, ‘actual injury occurs when the plaintiff sustains
any loss or injury legally cognizable as damages in a legal malpractice action
based on the acts or omissions that the plaintiff alleged.’ While ‘nominal
damages will not end the tolling of section 340.6’s limitations period,’ it is ‘the
fact of damage, rather than the amount, [that] is the critical factor.’ ” (Genisman,
supra, 29 Cal.App.5th at p. 52, internal citation omitted.)
• “Actual injury refers only to the legally cognizable damage necessary to assert
the cause of action. There is no requirement that an adjudication or settlement
must first confirm a causal nexus between the attorney’s error and the asserted
injury. The determination of actual injury requires only a factual analysis of the
claimed error and its consequences.” (Truong v. Glasser (2009) 181 Cal.App.4th
102, 113 [103 Cal.Rptr.3d 811].)
• “ ‘[S]ection 340.6, subdivision (a)(1), will not toll the limitations period once the
client can plead damages that could establish a cause of action for legal
14
CACI No. 610
malpractice.’ ‘[T]he limitations period is not tolled after the plaintiff sustains
actual injury [even] if the injury is, in some sense, remediable. [Citation.]
Furthermore, the statutory scheme does not depend on the plaintiff’s recognizing
actual injury. Actual injury must be noticeable, but the language of the tolling
provision does not require that it be noticed.’ On the other hand, ‘the statute of
limitations will not run during the time the plaintiff cannot bring a cause of
action for damages from professional negligence’ because the plaintiff cannot
allege actual injury resulted from an attorney’s malpractice.” (Croucier v. Chavos
(2012) 207 Cal.App.4th 1138, 1148 [144 Cal.Rptr.3d 180], internal citations
omitted.)
• “[A]ctual injury exists even if the client has yet to ‘sustain[] all, or even the
greater part, of the damages occasioned by his attorney’s negligence’; even if the
client will encounter ‘difficulty in proving damages’; and even if that damage
might be mitigated or entirely eliminated in the future. [¶] However, ‘actual
injury’ does not include ‘speculative and contingent injuries . . . that do not yet
exist . . . .’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn
& Associates, APC (2015) 238 Cal.App.4th 1031, 1036 [190 Cal.Rptr.3d 90],
internal citations omitted.)
• “[B]ecause ‘determining actual injury is predominately a factual inquiry’ to the
extent a question remains on this point, the matter is properly resolved by the
trier of fact . . . .” (Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194
Cal.App.4th 557, 576 [125 Cal.Rptr.3d 120].)
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037–1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6, discovery
of the negligent act or omission initiates the statutory period, and the absence of
injury or damages serves as a tolling factor.” (Adams v. Paul (1995) 11 Cal.4th
583, 589, fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute of
limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273, 989
P.2d 701], internal citations omitted.)
• “[D]efendant, if he is to avail himself of the statute’s one-year-from-discovery
limitation defense, has the burden of proving, under the ‘traditional allocation of
the burden of proof’ that plaintiff discovered or should have discovered the facts
alleged to constitute defendant’s wrongdoing more than one year prior to filing
this action.” (Samuels, supra, 22 Cal.4th at pp. 8–9, internal citations omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
15
CACI No. 610
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6
Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “We hold that a cause of action for legal malpractice does not accrue until the
client discovers, or should discover, the facts establishing the elements of his
cause of action.” (Neel, supra, 6 Cal.3d at p. 194.)
• “ ‘[W]here there is a professional relationship, the degree of diligence in
ferreting out the negligence for the purpose of the statute of limitations is
diminished. [Citation.]’ ” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 315 [166 Cal.Rptr.3d 116].)
• “If the allegedly negligent conduct does not cause damage, it generates no cause
of action in tort. The mere breach of a professional duty, causing only nominal
damages, speculative harm, or the threat of future harm—not yet realized—does
not suffice to create a cause of action for negligence. Hence, until the client
suffers appreciable harm as a consequence of his attorney’s negligence, the client
cannot establish a cause of action for malpractice.” (Budd v. Nixen (1971) 6
Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal citations omitted.)
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses a
particular phase of such a relationship-representation regarding a specific subject
matter. Moreover, the limitations period is not tolled when an attorney’s
subsequent role is only tangentially related to the legal representation the
attorney provided to the plaintiff. Therefore, “[t]he inquiry is not whether an
attorney-client relationship still exists but when the representation of the specific
matter terminated.” ’ Tolling does not apply where there is a continuing
relationship between the attorney and client ‘involving only unrelated matters.’ ”
(Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1064 [109 Cal.Rptr.3d 392],
original italics, internal citations omitted.)
• “[W]here a client hires a law firm to represent it, the provisions of section 340.6
apply to that firm; the term ‘attorney’ in section 340.6 may embrace the entire
16
CACI No. 610
partnership, law corporation, or other legal entity the client retains. [¶] That
either an attorney or a firm may be the subject of an action does not support a
reading under which representation by one attorney or firm might toll the
limitations period as to another no longer affiliated attorney or firm. Rather, the
text implies an action against a law firm is tolled so long as that firm continues
representation, just as an action against an attorney is tolled so long as that
attorney continues representation, but representation by one attorney or firm does
not toll claims that may exist against a different, unaffiliated attorney or firm.”
(Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 509 [66
Cal.Rptr.3d 52, 167 P.3d 666], original italics.)
• “ ‘[W]hen an attorney leaves a firm and takes a client with him or her, . . . the
tolling in ongoing matters [does not] continue for claims against the former firm
and partners.’ ” (Stueve Bros. Farms, LLC, supra, 222 Cal.App.4th at p. 314.)
• “ ‘Ordinarily, an attorney’s representation is not completed until the agreed tasks
or events have occurred, the client consents to termination or a court grants an
application by counsel for withdrawal.’ ‘The rule is that, for purposes of the
statute of limitations, the attorney’s representation is concluded when the parties
so agree, and that result does not depend upon formal termination, such as
withdrawing as counsel of record.’ ‘Continuity of representation ultimately
depends, not on the client’s subjective beliefs, but rather on evidence of an
ongoing mutual relationship and of activities in furtherance of the relationship.’ ”
(Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1049 [69 Cal.Rptr.3d 435],
internal citations omitted.)
• “[A]n attorney may withdraw from representation within the meaning of the
statute, ‘even absent a client’s consent.’ Such withdrawal ‘does not depend on
whether the attorney has formally withdrawn from representation, such as by
securing a court order granting permission to withdraw.’ ‘ “ ‘[I]n the event of an
attorney’s unilateral withdrawal or abandonment of the client, the representation
ends when the client actually has or reasonably should have no expectation that
the attorney will provide further legal services. [Citations.] That may occur upon
the attorney’s express notification to the client that the attorney will perform no
further services.’ ” ’ ” (Wang v. Nesse (2022) 81 Cal.App.5th 428, 440 [297
Cal.Rptr.3d 149], internal citations omitted.)
• “[T]he continuous representation tolling provision in section 340.6, subdivision
(a)(2), applies to toll legal malpractice claims brought by successor trustees
against attorneys who represented the predecessor trustee.” (Kelly, supra, 243
Cal.App.4th at p. 951.)
• “[A]bsent a statutory standard to determine when an attorney’s representation of
a client regarding a specific subject matter ends, and consistent with the purposes
of the continuing representation rule, we conclude that for purposes of . . .
section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral
withdrawal or abandonment of the client, the representation ends when the client
actually has or reasonably should have no expectation that the attorney will
provide further legal services. . . . That may occur upon the attorney’s express
17
CACI No. 610
notification to the client that the attorney will perform no further services, or, if
the attorney remains silent, may be inferred from the circumstances. Absent
actual notice to the client that the attorney will perform no further legal services
or circumstances that reasonably should cause the client to so conclude, a client
should be entitled to rely on an attorney to perform the agreed services and
should not be required to interrupt the attorney-client relationship by filing a
malpractice complaint. After a client has no reasonable expectation that the
attorney will provide further legal services, however, the client is no longer
hindered by a potential disruption of the attorney-client relationship and no
longer relies on the attorney’s continuing representation, so the tolling should
end. To this extent and for these reasons, we conclude that continuous
representation should be viewed objectively from the client’s perspective . . . .”
(Laclette v. Galindo (2010) 184 Cal.App.4th 919, 928 [109 Cal.Rptr.3d 660],
original italics.)
• “Continuity of representation ultimately depends, not on the client’s subjective
beliefs, but rather on evidence of an ongoing mutual relationship and of
activities in furtherance of the relationship.” (GoTek Energy, Inc. v. SoCal IP
Law Group, LLP (2016) 3 Cal.App.5th 1240, 1248 [208 Cal.Rptr.3d 428],
original italics.)
• “Section 340.6, subdivision (a), states that ‘in no event’ shall the prescriptive
period be tolled except under those circumstances specified in the statute. Thus,
the Legislature expressly intended to disallow tolling under any circumstances
not enumerated in the statute.” (Laird v. Blacker (1992) 2 Cal.4th 606, 618 [7
Cal.Rptr.2d 550, 828 P.2d 691] [applying rule to one-year limitation period]; cf.
Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 934 [86 Cal.Rptr.2d
107, 978 P.2d 591] [substantially similar language in Code Civ. Proc., § 340.5,
applicable to medical malpractice, construed to apply only to three-year
limitation period].)
• “[T]he fourth tolling provision of section 340.6, subdivision (a)—that is, the
provision applicable to legal and physical disabilities—encompasses the
circumstances set forth in section 351 [exception, where defendant is out of the
state].” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 569 [107
Cal.Rptr.3d 539].)
• “[A] would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning
of section 352.1 if he or she is serving a term of imprisonment in the state
prison.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [230 Cal.Rptr.3d
528].)
• “In light of the Legislature’s intent that section 340.6(a) cover more than claims
for legal malpractice, the term ‘professional services’ is best understood to
include nonlegal services governed by an attorney’s professional obligations.”
(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 [191 Cal.Rptr.3d 536, 354 P.3d
334].)
• “For purposes of section 340.6(a), the question is not simply whether a claim
18
CACI No. 610
alleges misconduct that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed, necessarily depends on
proof that an attorney violated a professional obligation as opposed to some
generally applicable nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p.
1238.)
• “Lee held that ‘section 340.6(a)’s time bar applies to claims whose merits
necessarily depend on proof that an attorney violated a professional obligation in
the course of providing professional services. In this context, a “professional
obligation” is an obligation that an attorney has by virtue of being an attorney,
such as fiduciary obligations, the obligation to perform competently, the
obligation to perform the services contemplated in a legal services contract into
which an attorney has entered, and the obligations embodied in the State Bar
Rules of Professional Conduct.’ ” (Foxen v. Carpenter (2016) 6 Cal.App.5th 284,
292 [211 Cal.Rptr.3d 372].)
• “In sum, consistent with Lee, section 340.6(a) applies to malicious prosecution
claims against attorneys who performed professional services in the underlying
litigation.” (Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 799 [245
Cal.Rptr.3d 452].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 679–702
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional Liability,
§§ 76.170, 76.430 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
19
904. Duty of Common Carrier Toward Passengers With Illness or
Disability
If a common carrier voluntarily accepts a person with an illness or a
disability as a passenger and is aware of that person’s condition, it must
use as much additional care as is reasonably necessary to ensure the
passenger’s safety.
New September 2003; Revised May 2023
Sources and Authority
• “[I]f the company voluntarily accepts a person as a passenger, without an
attendant, whose inability to care for himself is apparent or made known to its
servants and renders special care and assistance necessary, the company is
negligent if such assistance is not afforded. In such case it must exercise the
degree of care commensurate with the responsibility which it has thus
voluntarily assumed, and that care must be such as is reasonably necessary to
insure the safety of the passenger, in view of his mental and physical condition.
This is a duty required by law as well as the dictates of humanity.” (McBride v.
Atchison, Topeka & Santa Fe Ry. Co. (1955) 44 Cal.2d 113, 119–120 [279 P.2d
966], internal citation omitted.)
Secondary Sources
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.02[6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.33[1]
(Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
California Civil Practice: Torts § 28:6 (Thomson Reuters)
20
1010. Affirmative Defense—Recreation Immunity—Exceptions
(Civ. Code, § 846)
[Name of defendant] is not responsible for [name of plaintiff]’s harm if
[name of defendant] proves that [name of plaintiff]’s harm resulted from
[his/her/nonbinary pronoun/name of person causing injury’s] entry on or
use of [name of defendant]’s property for a recreational purpose.
However, [name of defendant] may be still responsible for [name of
plaintiff]’s harm if [name of plaintiff] proves that
[Choose one or more of the following three options:]
[[name of defendant] willfully or maliciously failed to protect others from
or warn others about a dangerous [condition/use/structure/activity] on
the property.]
[or]
[a charge or fee was paid to [name of defendant/the owner] for permission
to enter the property for a recreational purpose.]
[or]
[[name of defendant] expressly invited [name of plaintiff] to enter the
property.]
If you find that [name of plaintiff] has proven one or more of these three
exceptions to immunity, then you must still decide whether [name of
defendant] is liable in light of the other instructions that I will give you.
New September 2003; Revised October 2008, December 2014, May 2017, November
2017, May 2021, May 2023
Directions for Use
This instruction sets forth the statutory exceptions to recreational immunity. (See
Civ. Code, § 846.) In the opening paragraph, if the plaintiff was not the recreational
user of the property, insert the name of the person whose conduct on the property is
alleged to have caused plaintiff’s injury. Immunity extends to injuries to persons
who are neither on the property nor engaged in a recreational purpose if the injury
was caused by a recreational user of the property. (See Wang v. Nibbelink (2016) 4
Cal.App.5th 1, 17 [208 Cal.Rptr.3d 461], disapproved on other grounds in Hoffmann
v. Young (2022) 13 Cal.5th 1257, 1270, fn. 13 [297 Cal.Rptr.3d 607, 515 P.3d 635].)
Choose one or more of the optional exceptions according to the facts. Depending on
the facts, the court could instruct that the activity involved was a “recreational
purpose” as a matter of law. For a nonexhaustive list of “recreational purposes,”
refer to Civil Code section 846.
Whether the term “willful or malicious failure” has a unique meaning under this
21
CACI No. 1010
statute is not entirely clear. One court construing this statute has said that three
elements must be present to raise a negligent act to the level of willful misconduct:
(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or
constructive knowledge that injury is a probable, as opposed to a possible, result of
the danger, and (3) conscious failure to act to avoid the peril. (See New v.
Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689–690 [217
Cal.Rptr. 522].)
For the second exception involving payment of a fee, insert the name of the
defendant if the defendant is the landowner. If the defendant is someone who is
alleged to have created a dangerous condition on the property other than the
landowner, select “the owner.” (See Pacific Gas & Electric Co. v. Superior Court
(2017) 10 Cal.App.5th 563, 566 [216 Cal.Rptr.3d 426].)
For the third exception involving an express invitation onto the property, “a
qualifying invitation under [Civil Code] section 846(d)(3) may be made by a
landowner’s authorized agent who issued the invitation on the landowner’s behalf.”
(Hoffmann, supra, 13 Cal.5th at pp. 1276–1277.) The plaintiff bears the burden of
proving the invitation was made by a properly authorized agent or otherwise making
“the showing that a nonlandowner’s invitation operates as an invitation by the
landowner.” (Id. at pp. 1275, 1277, fn. 16.) In some cases, it may be necessary to
modify the third exception to identify the person who extended the invitation on
behalf of the defendant. California law, however, does not require a “direct, personal
request” from the landowner to the injured entrant. (Id. at p. 1270, fn. 13.)
Sources and Authority
• Recreational Immunity. Civil Code section 846.
• “[A]n owner of . . . real property owes no duty of care to keep the premises
safe for entry or use by others for recreational purposes or to give recreational
users warning of hazards on the property, unless: (1) the landowner willfully or
maliciously fails to guard or warn against a dangerous condition, use, structure
or activity; (2) permission to enter for a recreational purpose is granted for a
consideration; or (3) the landowner expressly invites rather than merely permits
the user to come upon the premises.” (Ornelas v. Randolph (1993) 4 Cal.4th
1095, 1099–1100 [17 Cal.Rptr.2d 594, 847 P.2d 560].)
• “Generally, whether one has entered property for a recreational purpose within
the meaning of the statute is a question of fact, to be determined through a
consideration of the ‘totality of the facts and circumstances, including . . . the
prior use of the land. While the plaintiff’s subjective intent will not be
controlling, it is relevant to show purpose.’ ” (Ornelas, supra, 4 Cal.4th at p.
1102, internal citation omitted.)
• “To the extent plaintiff suggests that ‘jogging’ is not an activity with a
recreational purpose because it is not specifically enumerated in section 846,
subdivision (b), her suggestion is plainly without merit, as section 846,
subdivision (b) is an illustrative, not exhaustive, list.” (Rucker v. WINCAL, LLC
(2022) 74 Cal.App.5th 883, 889 [290 Cal.Rptr.3d 56].)
22
CACI No. 1010
• “The phrase ‘interest in real property’ should not be given a narrow or technical
interpretation that would frustrate the Legislature’s intention in passing and
amending section 846.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 196 [266
Cal.Rptr. 491, 785 P.2d 1183].)
• “[D]efendants’ status as business invitees of the landowner does not satisfy the
prerequisite that the party seeking to invoke the immunity provisions of section
846 be ‘[a]n owner of any estate or any other interest in real property, whether
possessory or nonpossessory.’ Although such invitee may be entitled to be
present on the property during such time as the work is being performed, such
presence does not convey any estate or interest in the property.” (Jenson v.
Kenneth I. Mullen, Consulting Engineers, Inc. (1989) 211 Cal.App.3d 653, 658
[259 Cal.Rptr. 552].)
• “Subpart (c) of the third paragraph of section 846 is not limited to injuries to
persons on the premises and therefore on its face encompasses persons off-
premises such as [plaintiff] and her husband. It is not limited to injuries to
recreational participants. Had the Legislature wanted to narrow the third
paragraph’s immunity to injured recreational users, it could have done so, as it
did in the first paragraph.” (Wang, supra, 4 Cal.App.5th at p. 17.)
• “The concept of willful misconduct has a well-established, well-defined meaning
in California law. ‘Willful or wanton misconduct is intentional wrongful conduct,
done either with a knowledge that serious injury to another will probably result,
or with a wanton and reckless disregard of the possible results.’ ” (New, supra,
171 Cal.App.3d at p. 689, internal citations omitted.)
• “Clearly, consideration means some type of entrance fee or charge for permitting
a person to use specially constructed facilities. There are many amusement
facilities in government-owned parks that charge admission fees and a
consideration in this or a similar context was intended.” (Moore v. City of
Torrance (1979) 101 Cal.App.3d 66, 72 [166 Cal.Rptr. 192], disapproved of on
other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33
Cal.3d 699, 707 [190 Cal.Rptr. 494, 660 P.2d 1168].)
• “We conclude that the consideration exception to recreational use immunity does
apply to [defendant] even though [plaintiff]’s fee for recreational access to the
campground was not paid to it . . . . We hold that the payment of consideration
in exchange for permission to enter a premises for a recreational purpose
abrogates the section 846 immunity of any nonpossessory interest holder who is
potentially responsible for the plaintiff’s injuries, including a licensee or
easement holder who possesses only a limited right to enter and use a premises
on specified terms but no right to control third party access to the premises. The
contrary interpretation urged by [defendant], making immunity contingent not on
payment of consideration but its receipt, is supported neither by the statutory text
nor the Legislature’s purpose in enacting section 846, which was to encourage
free public access to property for recreational use. It also would lead to
troubling, anomalous results we do not think the Legislature intended. At bottom,
construing this exception as applying only to defendants who receive or benefit
23
CACI No. 1010
from the consideration paid loses sight of the fact that recreational immunity is
merely a tool. It is the Legislature’s chosen means, not an end unto itself.”
(Pacific Gas & Electric Co., supra, 10 Cal.App.5th at p. 566.)
• “A landowner must gain some immediate and reasonably direct advantage,
usually in the form of an entrance fee, before the exception to immunity for
consideration under section 846 comes into play.” (Johnson, supra, 21
Cal.App.4th at p. 317, disapproved on other grounds in Hoffmann, supra, 13
Cal.5th at p. 1270, fn. 13.)
• “The purpose of section 846 is to encourage landowners to permit people to use
their property for recreational use without fear of reprisal in the form of
lawsuits. The trial court should therefore construe the exceptions for
consideration and express invitees narrowly. (Johnson, supra, 21 Cal.App.4th at
p. 315, disapproved on other grounds in Hoffmann, supra, 13 Cal.5th at p. 1270,
fn. 13.)
• “The language of section 846, item (c), which refers to ‘any persons who are
expressly invited rather than merely permitted to come upon the premises by the
landowner’ does not say a person must be invited for a recreational purpose.
The exception instead defines a person who is ‘expressly invited’ by
distinguishing this person from one who is ‘merely permitted’ to come onto the
land.” (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 114 [96 Cal.Rptr.2d 394],
original italics.)
• “Civil Code section 846’s liability shield does not extend to acts of vehicular
negligence by a landowner or by the landowner’s employee while acting within
the course of the employment. We base this conclusion on section 846’s plain
language. The statutory phrase ‘keep the premises safe’ is an apt description of
the property-based duties underlying premises liability, a liability category that
does not include vehicular negligence. Furthermore, a broad construction of that
statutory phrase would render superfluous another provision of section 846
shielding landowners from liability for failure to warn recreational users about
hazardous conditions or activities on the land.” (Klein v. United States of
America (2010) 50 Cal.4th 68, 72 [112 Cal.Rptr.3d 722, 235 P.3d 42].)
• “[W]e hold that a plaintiff may rely on the exception and impose liability if
there is a showing that a landowner, or an agent acting on his or her behalf,
extended an express invitation to come onto the property. (Hoffmann, supra, 13
Cal.5th at p. 1263.)
• “[T]he general rule of section 846(a) relieves a landowner of any duty to keep
his or her premises safe for recreational users. Section 846(d)(3) creates an
exception to the rule of section 846(a) for those persons who are expressly
invited to come upon the premises by the landowner. Plaintiff seeks the shelter
of this exception. Accordingly, she should bear the burden of persuasion on the
point.” (Hoffmann, supra, 13 Cal.5th at p. 1275.)
• “[W]e do not foreclose other ways that a plaintiff might ‘make the showing that
a nonlandowner’s invitation operates as an invitation by the landowner.’ Rather,
24
CACI No. 1010
we ‘conclude that one way for a plaintiff invoking section 846(d)(3) to meet [the
burden of showing the exception applies] would be to rely on agency
principles.’ ” (Hoffmann, supra, 13 Cal.5th at p. 1277, fn. 16, original italics,
second alteration original, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1245–1253
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.22
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.30 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability,
§§ 421.20–421.23 (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.130 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:34 (Thomson Reuters)
25
1100. Dangerous Condition on Public Property—Essential Factual
Elements (Gov. Code, § 835)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
a dangerous condition of [name of defendant]’s property. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] owned [or controlled] the property;
2. That the property was in a dangerous condition at the time of the
injury;
3. That the dangerous condition created a reasonably foreseeable
risk of the kind of injury that occurred;
4. [That negligent or wrongful conduct of [name of defendant]’s
employee acting within the scope of employment created the
dangerous condition;]
4. [or]
4. [That [name of defendant] had notice of the dangerous condition
for a long enough time to have protected against it;]
5. That [name of plaintiff] was harmed; and
6. That the dangerous condition was a substantial factor in causing
[name of plaintiff]’s harm.
New September 2003; Revised October 2008, December 2015, June 2016, May 2020
Directions for Use
For element 4, choose either or both options depending on whether liability is
alleged under Government Code section 835(a), 835(b), or both.
See also CACI No. 1102, Definition of “Dangerous Condition,” and CACI No.
1103, Notice.
Sources and Authority
• Liability of Public Entity for Dangerous Condition of Property. Government
Code section 835.
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• Definitions. Government Code section 830.
• “The Government Claims Act (§ 810 et seq.; the Act) ‘is a comprehensive
statutory scheme that sets forth the liabilities and immunities of public entities
and public employees for torts.’ Section 835 . . . prescribes the conditions under
26
CACI No. 1100
which a public entity may be held liable for injuries caused by a dangerous
condition of public property. Section 835 provides that a public entity may be
held liable for such injuries ‘if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury, that the injury was proximately
caused by the dangerous condition, [and] that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred.’ In
addition, the plaintiff must establish that either: (a) ‘[a] negligent or wrongful act
or omission of an employee of the public entity within the scope of his
employment created the dangerous condition,’ or (b) ‘[t]he public entity had . . .
notice of the dangerous condition . . . a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition.’ ” (Cordova v.
City of Los Angeles (2015) 61 Cal.4th 1099, 1104 [190 Cal.Rptr.3d 850, 353
P.3d 773], internal citations omitted.)
• “[A] public entity may be liable for a dangerous condition of public property
even when the immediate cause of a plaintiff’s injury is a third party’s negligent
or illegal act (such as a motorist’s negligent driving), if some physical
characteristic of the property exposes its users to increased danger from third
party negligence or criminality. Public entity liability lies under section 835
when some feature of the property increased or intensified the danger to users
from third party conduct.” (Castro v. City of Thousand Oaks (2015) 239
Cal.App.4th 1451, 1457−1458 [192 Cal.Rptr.3d 376], internal citation omitted.)
• “Subdivisions (a) and (b) of section 835 obviously address two different types of
cases. However, what distinguishes the two types of cases is not simply whether
the public entity has notice of the dangerous condition. Instead, what
distinguishes the two cases in practice is who created the dangerous condition.
Because an entity must act through its employees, virtually all suits brought on
account of dangerous conditions created by the entity will be brought under
subdivision (a). In contrast, subdivision (b) can also support suits based on
dangerous conditions not created by the entity or its employees.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 836 [15 Cal.Rptr.2d 679, 843
P.2d 624].)
• “[T]he res ipsa loquitur presumption does not satisfy the requirements for
holding a public entity liable under section 835, subdivision (a). Res ipsa
loquitur requires the plaintiff to show only (1) that the accident was of a kind
which ordinarily does not occur in the absence of negligence, (2) that the
instrumentality of harm was within the defendant’s exclusive control, and (3)
that the plaintiff did not voluntarily contribute to his or her own injuries.
Subdivision (a), in contrast, requires the plaintiff to show that an employee of
the public entity ‘created’ the dangerous condition; in view of the legislative
history . . . , the term ‘created’ must be defined as the sort of involvement by an
employee that would justify a presumption of notice on the entity’s part.”
(Brown, supra, 4 Cal.4th at p. 836.)
• “Focusing on the language in Pritchard, supra, 178 Cal.App.2d at page 256,
stating that where the public entity ‘has itself created the dangerous condition it
27
CACI No. 1100
is per se culpable,’ plaintiff argues that the negligence that section 835,
subdivision (a), refers to is not common law negligence, but something that
exists whenever the public entity creates the dangerous condition of property. We
disagree. If the Legislature had wanted to impose liability whenever a public
entity created a dangerous condition, it would merely have required plaintiff to
establish that an act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition. Instead, section 835,
subdivision (a), requires the plaintiff to establish that a ‘negligent or wrongful
act or omission of an employee of the public entity within the scope of his
employment created the dangerous condition.’ (Italics added.) Plaintiff’s
interpretation would transform the highly meaningful words ‘negligent or
wrongful’ into meaningless surplusage, contrary to the rule of statutory
interpretation that courts should avoid a construction that makes any word
surplusage.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1135 [72
Cal.Rptr.3d 382, 176 P.2d 654], original italics, internal citation omitted.)
• “In order to recover under Government Code section 835, it is not necessary for
plaintiff to prove a negligent act and notice; either negligence or notice will
suffice.” (Curtis v. State of California (1982) 128 Cal.App.3d 668, 693 [180
Cal.Rptr. 843], original italics.)
• “A public entity may not be held liable under section 835 for a dangerous
condition of property that it does not own or control.” (Goddard v. Department
of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359 [196 Cal.Rptr.3d 625].)
• “For liability to be imposed on a public entity for a dangerous condition of
property, the entity must be in a position to protect against or warn of the
hazard. Therefore, the crucial element is not ownership, but rather control.”
(Mamola v. State of California ex rel. Dept. of Transportation (1979) 94
Cal.App.3d 781, 788 [156 Cal.Rptr. 614], internal citation omitted.)
• “Liability for injury caused by a dangerous condition of property has been
imposed when an unreasonable risk of harm is created by a combination of
defect in the property and acts of third parties. However, courts have consistently
refused to characterize harmful third party conduct as a dangerous
condition—absent some concurrent contributing defect in the property itself.”
(Hayes v. State of California (1974) 11 Cal.3d 469, 472 [113 Cal.Rptr. 599, 521
P.2d 855], internal citations omitted.)
• “[P]laintiffs in this case must show that a dangerous condition of property—that
is, a condition that creates a substantial risk of injury to the public—proximately
caused the fatal injuries their decedents suffered as a result of the collision with
[third party]’s car. But nothing in the statute requires plaintiffs to show that the
allegedly dangerous condition also caused the third party conduct that
precipitated the accident.” (Cordova, supra, 61 Cal.4th at p. 1106.)
• “Although generally a question of fact, a property defect is not a dangerous
condition as a matter of law if the court determines, ‘viewing the evidence most
favorably to the plaintiff, . . . that the risk created by the condition was of such
28
CACI No. 1100
a minor, trivial or insignificant nature in view of the surrounding circumstances
that no reasonable person would conclude that the condition created a substantial
risk of injury . . . .’ ” (Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th
749, 757 [297 Cal.Rptr.3d 461].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 425–426
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-C, Immunity
From Liability, ¶ 6:91 et seq. (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2785 et seq. (The Rutter Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.9–12.55
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, §§ 61.01–61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:
California Government Claims Act, §§ 464.80–464.86 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
29
2101. Trespass to Chattels—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully trespassed
on [his/her/nonbinary pronoun/its] personal property. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/possessed/had a right to possess] a
[insert item of personal property];
2. That [name of defendant] intentionally [insert one or more of the
following:]
2. [interfered with [name of plaintiff]’s use or possession of the [insert
item of personal property];]
2. [or]
2. [damaged the [insert item of personal property];]
3. That [name of plaintiff] did not consent;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Sources and Authority
• “Trespass to chattel, although seldom employed as a tort theory in California
. . . , lies where an intentional interference with the possession of personal
property has proximately caused injury. Prosser notes trespass to chattel has
evolved considerably from its original common law application—concerning the
asportation of another’s tangible property—to include even the unauthorized use
of personal property: ‘Its chief importance now,’ according to Prosser, ‘is that
there may be recovery . . . for interferences with the possession of chattels
which are not sufficiently important to be classed as conversion, and so to
compel the defendant to pay the full value of the thing with which he has
interfered. Trespass to chattels survives today, in other words, largely as a little
brother of conversion.’ ” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th
1559, 1566–1567 [54 Cal.Rptr.2d 468], footnotes and internal citations omitted.)
• “Where the conduct complained of does not amount to a substantial interference
with possession or the right thereto, but consists of intermeddling with or use of
or damages to the personal property, the owner has a cause of action for trespass
or case, and may recover only the actual damages suffered by reason of the
impairment of the property or the loss of its use.” (Zaslow v. Kroenert (1946) 29
Cal.2d 541, 551 [176 P.2d 1], internal citations omitted.)
30
CACI No. 2101
• “ ‘Though not amounting to conversion, the defendant’s interference must, to be
actionable, have caused some injury to the chattel or to the plaintiff’s rights in it.
Under California law, trespass to chattels “lies where an intentional interference
with the possession of personal property has proximately caused injury.” In
cases of interference with possession of personal property not amounting to
conversion, “the owner has a cause of action for trespass or case, and may
recover only the actual damages suffered by reason of the impairment of the
property or the loss of its use.” . . .’ ” (Jamgotchian v. Slender (2009) 170
Cal.App.4th 1384, 1400–1401 [89 Cal.Rptr.3d 122], original italics, internal
citations omitted.)
• “It is well settled that a person having neither the possession nor the right to the
possession of personal chattels, cannot maintain trespass or trover for an injury
done to the property.” (Triscony v. Orr (1875) 49 Cal. 612, 617, internal citations
omitted.)
• “[A] plaintiff alleging trespass to chattels based on unauthorized access to a
computer system must allege damage or disruption to that computer system.”
(Casillas v. Berkshire Hathaway Homestate Ins. Co. (2022) 79 Cal.App.5th 755,
764 [294 Cal.Rptr.3d 841].)
• “[W]e uphold both the economic and emotional distress damages plaintiffs
recovered for trespass to personal property arising from [defendant]’s act of
intentionally striking [plaintiff’s dog] with a bat.” (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1608 [146 Cal.Rptr.3d 585].)
• Restatement Second of Torts, section 218, provides:
“One who commits a trespass to a chattel is subject to liability to the possessor
of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial
time, or
(d) bodily harm is caused to the possessor, or harm is caused to some
person or thing in which the possessor has a legally protected
interest.”
• Restatement Second of Torts, section 222, comment (a), states: “Normally any
dispossession is so clearly a serious interference with the right of control that it
amounts to a conversion; and it is frequently said that any dispossession is a
conversion. There may, however, be minor and unimportant dispossessions, such
as taking another man’s hat by mistake and returning it within two minutes upon
discovery of the mistake, which do not seriously interfere with the other’s right
of control, and so do not amount to conversion. In such a case the remedy of the
action of trespass remains, and will allow recovery of damages for the
interference with the possession.”
Secondary Sources
31
CACI No. 2101
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Tort
Liability, ¶ 2:427.4 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 16, Landlord-Tenant Tort Liabilities, §§ 16.07,
40.43 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.13 (Matthew
Bender)
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.260–225.262
(Matthew Bender)
32
2500. Disparate Treatment—Essential Factual Elements (Gov.
Code, § 12940(a))
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun]. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
3. [or]
3. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
3. [or]
3. [That [name of plaintiff] was constructively discharged;]
4. That [name of plaintiff]’s [protected status—for example, race,
gender, or age] was a substantial motivating reason for [name of
defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised April 2009, June 2011, June 2012, June 2013, May
2020
Directions for Use
This instruction is intended for use when a plaintiff alleges disparate treatment
discrimination under the FEHA against an employer or other covered entity.
Disparate treatment occurs when an employer treats an individual less favorably
than others because of the individual’s protected status. In contrast, disparate impact
(the other general theory of discrimination) occurs when an employer has an
employment practice that appears neutral but has an adverse impact on members of
a protected group. For disparate impact claims, see CACI No. 2502, Disparate
Impact—Essential Factual Elements.
If element 1 is given, the court may need to instruct the jury on the statutory
33
CACI No. 2500
definition of “employer” under the FEHA. Other covered entities under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
Read the first option for element 3 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 3 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
4 if either the second or third option is included for element 3.
Note that there are two causation elements. There must be a causal link between the
discriminatory animus and the adverse action (see element 4), and there must be a
causal link between the adverse action and the damage (see element 6). (See Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)
Element 4 requires that discrimination based on a protected classification be a
substantial motivating reason for the adverse action. (See Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also
CACI No. 2507, “Substantial Motivating Reason” Explained.) Modify element 4 if
plaintiff was not actually a member of the protected class, but alleges discrimination
because the plaintiff was perceived to be a member, or associated with someone
who was or was perceived to be a member, of the protected class. (See Gov. Code,
§ 12926(o).)
For damages instructions, see applicable instructions on tort damages.
Sources and Authority
• Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Perception and Association. Government Code section 12926(o).
• “Race,” “Protective Hairstyles,” and “Reproductive Health Decisionmaking.”
Government Code section 12926(w), (x), (y).
• “[C]onceptually the theory of ‘[disparate] treatment’ . . . is the most easily
understood type of discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion, sex or national
origin.” (Mixon v. Fair Employment and Housing Com. (1987) 192 Cal.App.3d
1306, 1317 [237 Cal.Rptr. 884], quoting Teamsters v. United States (1977) 431
U.S. 324, 335–336, fn. 15 [97 S.Ct. 1843, 52 L.Ed.2d 396].)
• “California has adopted the three-stage burden-shifting test for discrimination
claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93
S.Ct. 1817, 36 L.Ed. 2d 668]. ‘This so-called McDonnell Douglas test reflects
the principle that direct evidence of intentional discrimination is rare, and that
such claims must usually be proved circumstantially. Thus, by successive steps
of increasingly narrow focus, the test allows discrimination to be inferred from
facts that create a reasonable likelihood of bias and are not satisfactorily
34
CACI No. 2500
explained.’ ” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307
[115 Cal.Rptr.3d 453], internal citations omitted.)
• “The McDonnell Douglas framework was designed as ‘an analytical tool for use
by the trial judge in applying the law, not a concept to be understood and
applied by the jury in the factfinding process.’ ” (Abed v. Western Dental
Services, Inc. (2018) 23 Cal.App.5th 726, 737 [233 Cal.Rptr.3d 242].)
• “At trial, the McDonnell Douglas test places on the plaintiff the initial burden to
establish a prima facie case of discrimination. This step is designed to eliminate
at the outset the most patently meritless claims, as where the plaintiff is not a
member of the protected class or was clearly unqualified, or where the job he
sought was withdrawn and never filled. While the plaintiff’s prima facie burden
is ‘not onerous’, he must at least show ‘ “actions taken by the employer from
which one can infer, if such actions remain unexplained, that it is more likely
than not that such actions were ‘based on a [prohibited] discriminatory
criterion . . . .’ . . . .” . . .’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 354–355 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• “If, at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises. This presumption, though ‘rebuttable,’ is ‘legally
mandatory.’ Thus, in a trial, ‘[i]f the trier of fact believes the plaintiff’s evidence,
and if the employer is silent in the face of the presumption, the court must enter
judgment for the plaintiff because no issue of fact remains in the case.’ [¶]
Accordingly, at this trial stage, the burden shifts to the employer to rebut the
presumption by producing admissible evidence, sufficient to ‘raise[] a genuine
issue of fact’ and to ‘justify a judgment for the [employer],’ that its action was
taken for a legitimate, nondiscriminatory reason. [¶] If the employer sustains this
burden, the presumption of discrimination disappears. The plaintiff must then
have the opportunity to attack the employer’s proffered reasons as pretexts for
discrimination, or to offer any other evidence of discriminatory motive. In an
appropriate case, evidence of dishonest reasons, considered together with the
elements of the prima facie case, may permit a finding of prohibited bias. The
ultimate burden of persuasion on the issue of actual discrimination remains with
the plaintiff.” (Guz, supra, 24 Cal.4th at pp. 355–356, internal citations omitted.)
• “The trial court decides the first two stages of the McDonnell Douglas test as
questions of law. If the plaintiff and defendant satisfy their respective burdens,
the presumption of discrimination disappears and the question whether the
defendant unlawfully discriminated against the plaintiff is submitted to the jury
to decide whether it believes the defendant’s or the plaintiff’s explanation.”
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965
[181 Cal.Rptr.3d 553].)
• “We conclude that where a plaintiff establishes a prima facie case of
discrimination based on a failure to interview her for open positions, the
employer must do more than produce evidence that the hiring authorities did not
know why she was not interviewed. Nor is it enough for the employer, in a writ
petition or on appeal, to cobble together after-the-fact possible nondiscriminatory
35
CACI No. 2500
reasons. While the stage-two burden of production is not onerous, the employer
must clearly state the actual nondiscriminatory reason for the challenged
conduct.” (Dept. of Corrections & Rehabilitation v. State Personnel Bd. (2022)
74 Cal.App.5th 908, 930 [290 Cal.Rptr.3d 70], original italics.)
• “To succeed on a disparate treatment claim at trial, the plaintiff has the initial
burden of establishing a prima facie case of discrimination, to wit, a set of
circumstances that, if unexplained, permit an inference that it is more likely than
not the employer intentionally treated the employee less favorably than others on
prohibited grounds. Based on the inherent difficulties of showing intentional
discrimination, courts have generally adopted a multifactor test to determine if a
plaintiff was subject to disparate treatment. The plaintiff must generally show
that: he or she was a member of a protected class; was qualified for the position
he sought; suffered an adverse employment action, and there were circumstances
suggesting that the employer acted with a discriminatory motive. [¶] On a
defense motion for summary judgment against a disparate treatment claim, the
defendant must show either that one of these elements cannot be established or
that there were one or more legitimate, nondiscriminatory reasons underlying the
adverse employment action.” (Jones v. Department of Corrections (2007) 152
Cal.App.4th 1367, 1379 [62 Cal.Rptr.3d 200], internal citations omitted.)
• “Although ‘[t]he specific elements of a prima facie case may vary depending on
the particular facts,’ the plaintiff in a failure-to-hire case ‘[g]enerally . . . must
provide evidence that (1) he [or she] was a member of a protected class, (2) he
[or she] was qualified for the position he [or she] sought . . . , (3) he [or she]
suffered an adverse employment action, such as . . . denial of an available job,
and (4) some other circumstance suggests discriminatory motive,’ such as that
the position remained open and the employer continued to solicit applications for
it.” (Abed, supra, 23 Cal.App.5th at p. 736.)
• “Although we recognize that in most cases, a plaintiff who did not apply for a
position will be unable to prove a claim of discriminatory failure to hire, a job
application is not an element of the claim.” (Abed, supra, 23 Cal.App.5th at p.
740, original italics.)
• “Employers who lie about the existence of open positions are not immune from
liability under the FEHA simply because they are effective in keeping protected
persons from applying.” (Abed, supra, 23 Cal.App.5th at p. 741.)
• “[Defendant] still could shift the burden to [plaintiff] by presenting admissible
evidence showing a legitimate, nondiscriminatory reason for terminating her. ‘It
is the employer’s honest belief in the stated reasons for firing an employee and
not the objective truth or falsity of the underlying facts that is at issue in a
discrimination case.’ . . . ‘[I]f nondiscriminatory, [the employer’s] true reasons
need not necessarily have been wise or correct. . . . While the objective
soundness of an employer’s proffered reasons supports their credibility . . . , the
ultimate issue is simply whether the employer acted with a motive to
discriminate illegally. Thus, “legitimate” reasons . . . in this context are reasons
that are facially unrelated to prohibited bias, and which, if true, would thus
36
CACI No. 2500
preclude a finding of discrimination. . . .’ ” (Wills v. Superior Court (2011) 195
Cal.App.4th 143, 170–171 [125 Cal.Rptr.3d 1], original italics, internal citations
omitted.)
• “[W]e hold that a residency program’s claim that it terminated a resident for
academic reasons is not entitled to deference. . . . [T]he jury should be
instructed to evaluate, without deference, whether the program terminated the
resident for a genuine academic reason or because of an impermissible reason
such as retaliation or the resident’s gender.” (Khoiny v. Dignity Health (2022) 76
Cal.App.5th 390, 404 [291 Cal.Rptr.3d 496].)
• “The burden therefore shifted to [plaintiff] to present evidence showing the
[defendant] engaged in intentional discrimination. To meet her burden, [plaintiff]
had to present evidence showing (1) the [defendant]’s stated reason for not
renewing her contract was untrue or pretextual; (2) the [defendant] acted with a
discriminatory animus in not renewing her contract; or (3) a combination of the
two.” (Swanson, supra, 232 Cal.App.4th at p. 966.)
• “Evidence that an employer’s proffered reasons were pretextual does not
necessarily establish that the employer intentionally discriminated: ‘ “ ‘[I]t is not
enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.’ ” ’ However, evidence of pretext is
important: ‘ “[A] plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.” ’ ” (Diego v. City
of Los Angeles (2017) 15 Cal.App.5th 338, 350–351 [223 Cal.Rptr.3d 173],
internal citations omitted.)
• “While a complainant need not prove that [discriminatory] animus was the sole
motivation behind a challenged action, he must prove by a preponderance of the
evidence that there was a ‘causal connection’ between the employee’s protected
status and the adverse employment decision.” (Mixon, supra, 192 Cal.App.3d at
p. 1319.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a
“but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)
37
CACI No. 2500
• “In cases involving a comparison of the plaintiff’s qualifications and those of the
successful candidate, we must assume that a reasonable juror who might disagree
with the employer’s decision, but would find the question close, would not
usually infer discrimination on the basis of a comparison of qualifications alone.
In a close case, a reasonable juror would usually assume that the employer is
more capable of assessing the significance of small differences in the
qualifications of the candidates, or that the employer simply made a judgment
call. [Citation.] But this does not mean that a reasonable juror would in every
case defer to the employer’s assessment. If that were so, no job discrimination
case could ever go to trial. If a factfinder can conclude that a reasonable
employer would have found the plaintiff to be significantly better qualified for
the job, but this employer did not, the factfinder can legitimately infer that the
employer consciously selected a less-qualified candidate—something that
employers do not usually do, unless some other strong consideration, such as
discrimination, enters into the picture.” (Reeves v. MV Transportation, Inc.
(2010) 186 Cal.App.4th 666, 674–675 [111 Cal.Rptr.3d 896], original italics.)
• “While not all cases hold that ‘the disparity in candidates’ qualifications “must
be so apparent as to jump off the page and slap us in the face to support a
finding of pretext” ’ the precedents do consistently require that the disparity be
substantial to support an inference of discrimination.” (Reeves, supra, 186
Cal.App.4th at p. 675, internal citation omitted.)
• “In no way did the Court of Appeal in Reeves overturn the long-standing rule
that comparator evidence is relevant and admissible where the plaintiff and the
comparator are similarly situated in all relevant respects and the comparator is
treated more favorably. Rather, it held that in a job hiring case, and in the
context of a summary judgment motion, a plaintiff’s weak comparator evidence
‘alone’ is insufficient to show pretext.” (Gupta v. Trustees of California State
University (2019) 40 Cal.App.5th 510, 521 [253 Cal.Rptr.3d 277].)
• “[Defendant] contends that a trial court must assess the relative strength and
nature of the evidence presented on summary judgment in determining if the
plaintiff has ‘created only a weak issue of fact.’ However, [defendant] overlooks
that a review of all of the evidence is essential to that assessment. The stray
remarks doctrine, as advocated by [defendant], goes further. It allows a court to
weigh and assess the remarks in isolation, and to disregard the potentially
damaging nature of discriminatory remarks simply because they are made by
‘nondecisionmakers, or [made] by decisionmakers unrelated to the decisional
process.’ [Defendant] also argues that ambiguous remarks are stray, irrelevant,
prejudicial, and inadmissible. However, ‘the task of disambiguating ambiguous
utterances is for trial, not for summary judgment.’ Determining the weight of
discriminatory or ambiguous remarks is a role reserved for the jury. The stray
remarks doctrine allows the trial court to remove this role from the jury.” (Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 540–541 [113 Cal.Rptr.3d 327, 235 P.3d
988], internal citations omitted; see Gov. Code, § 12923(c) [Legislature affirms
38
CACI No. 2500
the decision in Reid v. Google, Inc. in its rejection of the “stray remarks
doctrine”].)
• “[D]iscriminatory remarks can be relevant in determining whether intentional
discrimination occurred: ‘Although stray remarks may not have strong probative
value when viewed in isolation, they may corroborate direct evidence of
discrimination or gain significance in conjunction with other circumstantial
evidence. Certainly, who made the comments, when they were made in relation
to the adverse employment decision, and in what context they were made are all
factors that should be considered . . . .’ ” (Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1190–1191 [220 Cal.Rptr.3d 42].)
• “Discrimination on the basis of an employee’s foreign accent is a sufficient basis
for finding national origin discrimination.” (Galvan v. Dameron Hospital Assn.
(2019) 37 Cal.App.5th 549, 562 [250 Cal.Rptr.3d 16].)
• “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our
own statutes.” (Guz, supra, 24 Cal.4th at p. 354.)
• “We have held ‘that, in a civil action under the FEHA, all relief generally
available in noncontractual actions . . . may be obtained.’ This includes
injunctive relief.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
121, 132 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
• “The FEHA does not itself authorize punitive damages. It is, however, settled
that California’s punitive damages statute, Civil Code section 3294, applies to
actions brought under the FEHA . . . .” (Weeks v. Baker & McKenzie (1998) 63
Cal.App.4th 1128, 1147–1148 [74 Cal.Rptr.2d 510], internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1025 et
seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:194, 7:200–7:201,
7:356, 7:391–7:392 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.44–2.82
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, §§ 43.01, 43.10 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[2] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:2, 2:20 (Thomson Reuters)
39
2508. Failure to File Timely Administrative Complaint—Plaintiff
Alleges Continuing Violation (Gov. Code, § 12960(e))
[Name of defendant] contends that [name of plaintiff]’s lawsuit may not
proceed because [name of plaintiff] did not timely file a complaint with
the California Civil Rights Department (CRD). A complaint is timely if it
was filed within three years of the date on which [name of defendant]’s
alleged unlawful practice occurred.
[Name of plaintiff] filed a complaint with the CRD on [date]. [Name of
plaintiff] may recover for acts of alleged [specify the unlawful practice, e.g.,
harassment] that occurred before [insert date three years before the CRD
complaint was filed], only if [he/she/nonbinary pronoun] proves all of the
following:
1. That [name of defendant]’s [e.g., harassment] that occurred before
[insert date three years before the CRD complaint was filed] was
similar or related to the conduct that occurred on or after that
date;
2. That the conduct was reasonably frequent; and
3. That the conduct had not yet become permanent before that date.
“Permanent” in this context means that the conduct has stopped, [name
of plaintiff] has resigned, or [name of defendant]’s statements and actions
would make it clear to a reasonable employee that any further efforts to
resolve the issue internally would be futile.
New June 2010; Revised December 2011, June 2015, May 2019, May 2020, May
2023
Directions for Use
Give this instruction if the plaintiff relies on the continuing violation doctrine in
order to avoid the bar of the limitation period of three years within which to file an
administrative complaint. (See Gov. Code, § 12960(e).) Although the continuing
violation doctrine is labeled an equitable exception, it may involve triable issues of
fact. (See Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714,
723–724 [85 Cal.Rptr.3d 705].)
If the case involves multiple claims of FEHA violations, replace “lawsuit” in the
opening sentence with reference to the particular claim or claims to which the
continuing violation rule may apply.
In the second paragraph, insert the date on which the administrative complaint was
filed and the dates on which both sides allege that the complaint requirement was
triggered. The verdict form should ask the jury to specify the date that it finds that
the requirement accrued. If there are multiple claims with different continuing
40
CACI No. 2508
violation dates, repeat this paragraph for each claim.
The plaintiff has the burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with the CRD. (Kim v. Konad USA
Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 [172 Cal.Rptr.3d 686].) (Use
“Department of Fair Employment and Housing” or “DFEH” as appropriate if the
case was filed before the agency’s name change.) This burden of proof extends to
any excuse or justification for the failure to timely file, such as the continuing
violation exception. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390,
1402 [194 Cal.Rptr.3d 689].)
Sources and Authority
• Administrative Complaint for FEHA Violation. Government Code section 12960.
• “At a jury trial, the facts are presented and the jury must decide whether there
was a continuing course of unlawful conduct based on the law as stated in CACI
No. 2508.” (Jumaane, supra, 241 Cal.App.4th at p. 1401.)
• “Under the FEHA, the employee must exhaust the administrative remedy
provided by the statute by filing a complaint with the Department of Fair
Employment and Housing (Department) and must obtain from the Department a
notice of right to sue in order to be entitled to file a civil action in court based
on violations of the FEHA. The timely filing of an administrative complaint is a
prerequisite to the bringing of a civil action for damages under the FEHA. As
for the applicable limitation period, the FEHA provides that no complaint for
any violation of its provisions may be filed with the Department ‘after the
expiration of one year from the date upon which the alleged unlawful practice or
refusal to cooperate occurred,’ with an exception for delayed discovery not
relevant here.” (Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 63 [105 Cal.Rptr.2d 652], original italics, internal citations
omitted.)
• “[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with [CRD, formerly known as
DFEH] and obtaining a right-to-sue letter.’ ” (Kim, supra, 226 Cal.App.4th at p.
1345.)
• “[W]hen defendant has asserted the statute of limitation defense, plaintiff has the
burden of proof to show his or her claims are timely under the continuing
violation doctrine.” (Jumaane, supra, 241 Cal.App.4th at p. 1402.)
• “Under the continuing violation doctrine, a plaintiff may recover for unlawful
acts occurring outside the limitations period if they continued into that period.
The continuing violation doctrine requires proof that (1) the defendant’s actions
inside and outside the limitations period are sufficiently similar in kind; (2) those
actions occurred with sufficient frequency; and (3) those actions have not
acquired a degree of permanence.” (Wassmann v. South Orange County
Community College Dist. (2018) 24 Cal.App.5th 825, 850–851 [234 Cal.Rptr.3d
712], internal citations omitted.)
41
CACI No. 2508
• “ ‘[P]ermanence’ in the context of an ongoing process of accommodation of
disability, or ongoing disability harassment, should properly be understood to
mean the following: that an employer’s statements and actions make clear to a
reasonable employee that any further efforts at informal conciliation to obtain
reasonable accommodation or end harassment will be futile. [¶] Thus, when an
employer engages in a continuing course of unlawful conduct under the FEHA
by refusing reasonable accommodation of a disabled employee or engaging in
disability harassment, and this course of conduct does not constitute a
constructive discharge, the statute of limitations begins to run, not necessarily
when the employee first believes that his or her rights may have been violated,
but rather, either when the course of conduct is brought to an end, as by the
employer’s cessation of such conduct or by the employee’s resignation, or when
the employee is on notice that further efforts to end the unlawful conduct will be
in vain. Accordingly, an employer who is confronted with an employee seeking
accommodation of disability or relief from disability harassment may assert
control over its legal relationship with the employee either by accommodating
the employee’s requests, or by making clear to the employee in a definitive
manner that it will not be granting any such requests, thereby commencing the
running of the statute of limitations.” (Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 823–824 [111 Cal.Rptr.2d 87, 29 P.3d 175], internal citations
omitted.)
• “[T]he Richards court interpreted section 12960 to mean that when a continuing
pattern of wrongful conduct occurs partly in the statutory period and partly
outside the statutory period, the limitations period begins to accrue once an
employee is on notice of the violation of his or her rights and on notice that
‘litigation, not informal conciliation, is the only alternative for the vindication of
his or her rights.’ ” (Acuna v. San Diego Gas & Electric Co. (2013) 217
Cal.App.4th 1402, 1412 [159 Cal.Rptr.3d 749].)
• “A continuing violation may be established by demonstrating ‘a company wide
policy or practice’ or ‘a series of related acts against a single individual.’ ‘The
continuing violation theory generally has been applied in the context of a
continuing policy and practice of discrimination on a company-wide basis; a
plaintiff who shows that a policy and practice operated at least in part within the
limitation period satisfies the filing requirements. “[A] systematic policy of
discrimination is actionable even if some or all of the events evidencing its
inception occurred prior to the limitations period. The reason is that the
continuing system of discrimination operates against the employee and violates
his or her rights up to a point in time that falls within the applicable limitations
period. Such continuing violations are most likely to occur in the matter of
placements or promotions.” ’ The plaintiff must demonstrate that at least one act
occurred within the filing period and that ‘the harassment is “more than the
occurrence of isolated or sporadic acts of intentional discrimination.” . . . The
relevant distinction is between the occurrence of isolated, intermittent acts of
discrimination and a persistent, on-going pattern.’ ” (Morgan, supra, 88
42
CACI No. 2508
Cal.App.4th at p. 64, internal citations omitted.)
• “[A] continuing violation claim will likely fail if the plaintiff knew, or through
the exercise of reasonable diligence would have known, [the plaintiff] was being
discriminated against at the time the earlier events occurred.” (Morgan, supra,
88 Cal.App.4th at p. 65.)
• “The Supreme Court has extended the continuing violation doctrine to retaliation
claims. And the doctrine also applies to racial harassment claims. Indeed, as we
observed in Morgan v. Regents of University of California, supra, 88
Cal.App.4th 52, 65: ‘Cases alleging a hostile work environment due to racial or
sexual harassment are often found to come within the continuing violations
framework.’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 270
[100 Cal.Rptr.3d 296], internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1065
3 Witkin, California Procedure (5th ed. 2008) Actions, § 611
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:561.1, 7:975 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-A, Failure To
Exhaust Administrative Remedies, ¶ 16:85 (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.51[1] (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.59 (Matthew Bender)
43
2540. Disability Discrimination—Disparate Treatment—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun] based on
[his/her/nonbinary pronoun] [history of [a]] [select term to describe basis of
limitations, e.g., physical condition]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [name of defendant] knew that [name of plaintiff] had [a
history of having] [a] [e.g., physical condition] [that limited [insert
major life activity]];
4. That [name of plaintiff] was able to perform the essential job
duties of [his/her/nonbinary pronoun] [current position/the position
for which [he/she/nonbinary pronoun] applied], either with or
without reasonable accommodation for [his/her/nonbinary
pronoun] [e.g., condition];
5. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
5. [or]
5. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
5. [or]
5. [That [name of plaintiff] was constructively discharged;]
6. That [name of plaintiff]’s [history of [a]] [e.g., physical condition]
was a substantial motivating reason for [name of defendant]’s
[decision to [discharge/refuse to hire/[other adverse employment
action]] [name of plaintiff]/conduct];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[Name of plaintiff] does not need to prove that [name of defendant] held
any ill will or animosity toward [him/her/nonbinary pronoun] personally
because [he/she/nonbinary pronoun] was [perceived to be] disabled. [On
the other hand, if you find that [name of defendant] did hold ill will or
44
CACI No. 2540
animosity toward [name of plaintiff] because [he/she/nonbinary pronoun]
was [perceived to be] disabled, you may consider this fact, along with all
the other evidence, in determining whether [name of plaintiff]’s [history
of [a]] [e.g., physical condition] was a substantial motivating reason for
[name of defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct].]
New September 2003; Revised June 2006, December 2007, April 2009, December
2009, June 2010, June 2012, June 2013, December 2014, December 2016, May
2019, May 2020
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
In the introductory paragraph and in elements 3 and 6, select the bracketed language
on “history” of disability if the claim of discrimination is based on a history of
disability rather than a current actual disability.
For element 1, the court may need to instruct the jury on the statutory definition of
“employer” under the FEHA. Other covered entities under the FEHA include labor
organizations, employment agencies, and apprenticeship training programs. (See
Gov. Code, § 12940(a)–(d).)
This instruction is for use by both an employee and a job applicant. Select the
appropriate options in elements 2, 5, and 6 depending on the plaintiff’s status.
Modify elements 3 and 6 if the plaintiff was not actually disabled or had a history
of disability, but alleges discrimination because the plaintiff was perceived to be
disabled. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].) This can be done with language in element 3 that the employer “treated
[name of plaintiff] as if [he/she/nonbinary pronoun] . . .” and with language in
element 6 “That [name of employer]’s belief that . . . .”
If the plaintiff alleges discrimination on the basis of the plaintiff’s association with
someone who was or was perceived to be disabled, give CACI No. 2547, Disability-
Based Associational Discrimination—Essential Factual Elements. (See Rope v. Auto-
Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 655–660 [163
Cal.Rptr.3d 392] [claim for “disability based associational discrimination”
adequately pled].)
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in element 3. (Compare
45
CACI No. 2540
Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement that medical
condition limit major life activity].)
Regarding element 4, it is now settled that the ability to perform the essential duties
of the job, with or without reasonable accommodation, is an element of the
plaintiff’s burden of proof. (See Green v. State of California (2007) 42 Cal.4th 254,
257–258 [64 Cal.Rptr.3d 390, 165 P.3d 118].)
Read the first option for element 5 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 5 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
6 if either the second or third option is included for element 5.
Element 6 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Give the optional sentence in the last paragraph if there is evidence that the
defendant harbored personal animus against the plaintiff because of the plaintiff’s
disability.
If the existence of a qualifying disability is disputed, additional instructions defining
“physical disability,” “mental disability,” and “medical condition” may be required.
(See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Inability to Perform Essential Job Duties. Government Code section 12940(a)(1).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Perception of Disability and Association With Person Who Has or Is Perceived
to Have Disability Protected. Government Code section 12926(o).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “[T]he plaintiff initially has the burden to establish a prima facie case of
discrimination. The plaintiff can meet this burden by presenting evidence that
demonstrates, even circumstantially or by inference, that he or she (1) suffered
from a disability, or was regarded as suffering from a disability; (2) could
perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action
because of the disability or perceived disability. To establish a prima facie case,
46
CACI No. 2540
a plaintiff must show ‘ “ ‘ “actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that such
actions were based on a [prohibited] discriminatory criterion . . . .” ’ ” . . .’ The
prima facie burden is light; the evidence necessary to sustain the burden is
minimal. As noted above, while the elements of a plaintiff’s prima facie case can
vary considerably, generally an employee need only offer sufficient
circumstantial evidence to give rise to a reasonable inference of discrimination.”
(Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310 [115 Cal.Rptr.3d
453], original italics, internal citations omitted.)
• “The distinction between cases involving direct evidence of the employer’s
motive for the adverse employment action and cases where there is only
circumstantial evidence of the employer’s discriminatory motive is critical to the
outcome of this appeal. There is a vast body of case law that addresses proving
discriminatory intent in cases where there was no direct evidence that the
adverse employment action taken by the employer was motivated by race,
religion, national origin, age or sex. In such cases, proof of discriminatory
motive is governed by the three-stage burden-shifting test established by the
United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668].” (Wallace v. County of Stanislaus
(2016) 245 Cal.App.4th 109, 123 [199 Cal.Rptr.3d 462], original italics, footnote
and internal citations omitted.)
• “The three-stage framework and the many principles adopted to guide its
application do not apply in discrimination cases where, like here, the plaintiff
presents direct evidence of the employer’s motivation for the adverse
employment action. In many types of discrimination cases, courts state that
direct evidence of intentional discrimination is rare, but disability discrimination
cases often involve direct evidence of the role of the employee’s actual or
perceived disability in the employer’s decision to implement an adverse
employment action. Instead of litigating the employer’s reasons for the action,
the parties’ disputes in disability cases focus on whether the employee was able
to perform essential job functions, whether there were reasonable
accommodations that would have allowed the employee to perform those
functions, and whether a reasonable accommodation would have imposed an
undue hardship on the employer. To summarize, courts and practitioners should
not automatically apply principles related to the McDonnell Douglas test to
disability discrimination cases. Rather, they should examine the critical threshold
issue and determine whether there is direct evidence that the motive for the
employer’s conduct was related to the employee’s physical or mental condition.”
(Wallace, supra, 245 Cal.App.4th at p. 123, original italics, footnote and internal
citations omitted; cf. Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 234 fn. 3 [206 Cal.Rptr.3d 841] [case did not present so-called
“typical” disability discrimination case, as described in Wallace, in that the
parties disputed the employer’s reasons for terminating plaintiff’s employment].)
• “If the employee meets this [prima facie] burden, it is then incumbent on the
47
CACI No. 2540
employer to show that it had a legitimate, nondiscriminatory reason for its
employment decision. When this showing is made, the burden shifts back to the
employee to produce substantial evidence that employer’s given reason was
either ‘untrue or pretextual,’ or that the employer acted with discriminatory
animus, in order to raise an inference of discrimination.” (Furtado v. State
Personnel Bd. (2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292], internal
citations omitted.)
• “Although the same statutory language that prohibits disability discrimination
also prohibits discrimination based on race, age, sex, and other factors, we
conclude that disability discrimination claims are fundamentally different from
the discrimination claims based on the other factors listed in section 12940,
subdivision (a). These differences arise because (1) additional statutory
provisions apply to disability discrimination claims, (2) the Legislature made
separate findings and declarations about protections given to disabled persons,
and (3) discrimination cases involving race, religion, national origin, age and
sex, often involve pretexts for the adverse employment action—an issue about
motivation that appears less frequently in disability discrimination cases.”
(Wallace, supra, 245 Cal.App.4th at p. 122.)
• “[Defendant] argues that, because [it] hired plaintiffs as recruit officers, they
must show they were able to perform the essential functions of a police recruit
in order to be qualified individuals entitled to protection under FEHA.
[Defendant] argues that plaintiffs cannot satisfy their burden of proof under
FEHA because they failed to show that they could perform those essential
functions. [¶] Plaintiffs do not directly respond to [defendant]’s argument.
Instead, they contend that the relevant question is whether they could perform
the essential functions of the positions to which they sought reassignment.
Plaintiffs’ argument improperly conflates the legal standards for their claim under
section 12940, subdivision (a), for discrimination, and their claim under section
12940, subdivision (m), for failure to make reasonable accommodation, including
reassignment. In connection with a discrimination claim under section 12940,
subdivision (a), the court considers whether a plaintiff could perform the
essential functions of the job held—or for job applicants, the job desired—with
or without reasonable accommodation.” (Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 716–717 [214 Cal.Rptr.3d 113].)
• “Summary adjudication of the section 12940(a) claim . . . turns on . . . whether
[plaintiff] could perform the essential functions of the relevant job with or
without accommodation. [Plaintiff] does not dispute that she was unable to
perform the essential functions of her former position as a clothes fitter with or
without accommodation. Under federal law, however, when an employee seeks
accommodation by being reassigned to a vacant position in the company, the
employee satisfies the ‘qualified individual with a disability’ requirement by
showing he or she can perform the essential functions of the vacant position
with or without accommodation. The position must exist and be vacant, and the
employer need not promote the disabled employee. We apply the same rule here.
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CACI No. 2540
To prevail on summary adjudication of the section 12940(a) claim, [defendant]
must show there is no triable issue of fact about [plaintiff]’s ability, with or
without accommodation, to perform the essential functions of an available vacant
position that would not be a promotion.” (Nadaf-Rahrov v. The Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 965 [83 Cal.Rptr.3d 190], original
italics, internal citations omitted.)
• “To establish a prima facie case of mental disability discrimination under FEHA,
a plaintiff must show the following elements: (1) She suffers from a mental
disability; (2) she is otherwise qualified to do the job with or without reasonable
accommodation; and (3) she was subjected to an adverse employment action
because of the disability.” (Higgins-Williams v. Sutter Medical Foundation
(2015) 237 Cal.App.4th 78, 84 [187 Cal.Rptr.3d 745].)
• “At most, [plaintiff] alleges only that he anticipated becoming disabled for some
time after the organ donation. This is insufficient. [Plaintiff] cannot pursue a
cause of action for discrimination under FEHA on the basis of his ‘actual’
physical disability in the absence of factual allegations that he was in fact,
physically disabled.” (Rope, supra, 220 Cal.App.4th at p. 659.)
• “[Defendant] asserts the statute’s ‘regarded as’ protection is limited to persons
who are denied or who lose jobs based on an employer’s reliance on the ‘myths,
fears or stereotypes’ frequently associated with disabilities. . . . However, the
statutory language does not expressly restrict FEHA’s protections to the narrow
class to whom [defendant] would limit its coverage. To impose such a restriction
would exclude from protection a large group of individuals, like [plaintiff], with
more mundane long-term medical conditions, the significance of which is
exacerbated by an employer’s failure to reasonably accommodate. Both the
policy and language of the statute offer protection to a person who is not
actually disabled, but is wrongly perceived to be. The statute’s plain language
leads to the conclusion that the ‘regarded as’ definition casts a broader net and
protects any individual ‘regarded’ or ‘treated’ by an employer ‘as having, or
having had, any physical condition that makes achievement of a major life
activity difficult’ or may do so in the future. We agree most individuals who sue
exclusively under this definitional prong likely are and will continue to be
victims of an employer’s ‘mistaken’ perception, based on an unfounded fear or
stereotypical assumption. Nevertheless, FEHA’s protection is nowhere expressly
premised on such a factual showing, and we decline the invitation to import such
a requirement.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 53
[43 Cal.Rptr.3d 874], original italics, internal citations omitted.)
• “[T]he purpose of the ‘regarded-as’ prong is to protect individuals rejected from
a job because of the ‘myths, fears and stereotypes’ associated with disabilities. In
other words, to find a perceived disability, the perception must stem from a false
idea about the existence of or the limiting effect of a disability.” (Diffey v.
Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031, 1037 [101
Cal.Rptr.2d 353], internal citation omitted.)
• “We say on this record that [defendant] took action against [plaintiff] based on
49
CACI No. 2540
concerns or fear about his possible future disability. The relevant FEHA
definition of an individual regarded as disabled applies only to those who suffer
certain specified physical disabilities or those who have a condition with ‘no
present disabling effect’ but which ‘may become a physical disability . . . .’
According to the pleadings, [defendant] fired [plaintiff] to avoid accommodating
him because of his association with his physically disabled sister. That is not a
basis for liability under the ‘regarded as’ disabled standard.” (Rope, supra, 220
Cal.App.4th at p. 659, internal citations omitted.)
• “ ‘[A]n employer “knows an employee has a disability when the employee tells
the employer about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by observation. The
employer need only know the underlying facts, not the legal significance of
those facts.” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th
570, 592 [210 Cal.Rptr.3d 59].)
• “ ‘An adverse employment decision cannot be made “because of” a disability,
when the disability is not known to the employer. Thus, in order to prove [a
discrimination] claim, a plaintiff must prove the employer had knowledge of the
employee’s disability when the adverse employment decision was made. . . .
While knowledge of the disability can be inferred from the circumstances,
knowledge will only be imputed to the employer when the fact of disability is
the only reasonable interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient to put an
employer on notice of its obligations . . . .” . . .’ ” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1008 [93 Cal.Rptr.3d 338].)
• “[W]e interpret FEHA as authorizing an employer to distinguish between
disability-caused misconduct and the disability itself in the narrow context of
threats or violence against coworkers. If employers are not permitted to make
this distinction, they are caught on the horns of a dilemma. They may not
discriminate against an employee based on a disability but, at the same time,
must provide all employees with a safe work environment free from threats and
violence.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 166 [125
Cal.Rptr.3d 1], internal citations omitted.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
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CACI No. 2540
even by itself determinative of an employment decision without also being a ‘but
for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “We note that the court in Harris discussed the employer’s motivation and the
link between the employer’s consideration of the plaintiff’s physical condition
and the adverse employment action without using the terms ‘animus,’
‘animosity,’ or ‘ill will.’ The absence of a discussion of these terms necessarily
implies an employer can violate section 12940, subdivision (a) by taking an
adverse employment action against an employee “because of” the employee’s
physical disability even if the employer harbored no animosity or ill will against
the employee or the class of persons with that disability.” (Wallace, supra, 245
Cal.App.4th at p. 128.)
• “Based on Harris, we conclude that an employer has treated an employee
differently ‘because of’ a disability when the disability is a substantial
motivating reason for the employer’s decision to subject the [employee] to an
adverse employment action. This conclusion resolves how the jury should have
been instructed on [defendant]’s motivation or intent in connection with the
disability discrimination claim.” (Wallace, supra, 245 Cal.App.4th at p. 128.)
• “We conclude that where, as here, an employee is found to be able to safely
perform the essential duties of the job, a plaintiff alleging disability
discrimination can establish the requisite employer intent to discriminate by
proving (1) the employer knew that plaintiff had a physical condition that limited
a major life activity, or perceived him to have such a condition, and (2) the
plaintiff’s actual or perceived physical condition was a substantial motivating
reason for the defendant’s decision to subject the plaintiff to an adverse
employment action. . . . [T]his conclusion is based on (1) the interpretation of
section 12940’s term ‘because of’ adopted in Harris; (2) our discussion of the
meaning of the statutory phrase ‘to discriminate against’; and (3) the guidance
provided by the current versions of CACI Nos. 2540 and 2507. [¶] Therefore,
the jury instruction that [plaintiff] was required to prove that [defendant]
‘regarded or treated [him] as having a disability in order to discriminate’ was
erroneous.” (Wallace, supra, 245 Cal.App.4th at p. 129.)
• “The word ‘animus’ is ambiguous because it can be interpreted narrowly to
mean ‘ill will’ or ‘animosity’ or can be interpreted broadly to mean ‘intention.’
In this case, it appears [defendant] uses ‘animus’ to mean something more than
the intent described by the substantial-motivating-reason test adopted in Harris.”
(Wallace, supra, 245 Cal.App.4th at p. 130, fn. 14, internal citation omitted.)
• “ ‘[W]eight may qualify as a protected “handicap” or “disability” within the
meaning of the FEHA if medical evidence demonstrates that it results from a
physiological condition affecting one or more of the basic bodily systems and
limits a major life activity.’ . . . ‘[A]n individual who asserts a violation of the
FEHA on the basis of his or her weight must adduce evidence of a
physiological, systemic basis for the condition.’ ” (Cornell v. Berkeley Tennis
Club (2017) 18 Cal.App.5th 908, 928 [227 Cal.Rptr.3d 286].)
• “Being unable to work during pregnancy is a disability for the purposes of
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CACI No. 2540
section 12940.” (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340
[153 Cal.Rptr.3d 367].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1049–1051
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2160–9:2241 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.78–2.80
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.32[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.23, 115.34, 115.77[3][a] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:46 (Thomson Reuters)
52
2541. Disability Discrimination—Reasonable
Accommodation—Essential Factual Elements (Gov. Code,
§ 12940(m))
[Name of plaintiff] claims that [name of defendant] failed to reasonably
accommodate [his/her/nonbinary pronoun] [select term to describe basis of
limitations, e.g., physical condition]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [[name of plaintiff] had/[name of defendant] treated [name of
plaintiff] as if [he/she/nonbinary pronoun] had] [a] [e.g., physical
condition] [that limited [insert major life activity]];
[4. That [name of defendant] knew of [name of plaintiff]’s [e.g., physical
condition] [that limited [insert major life activity]];]
5. That [name of plaintiff] was able to perform the essential duties of
[[his/her/nonbinary pronoun] current position or a vacant
alternative position to which [he/she/nonbinary pronoun] could
have been reassigned/the position for which [he/she/nonbinary
pronoun] applied] with reasonable accommodation for [his/her/
nonbinary pronoun] [e.g., physical condition];
6. That [name of defendant] failed to provide reasonable
accommodation for [name of plaintiff]’s [e.g., physical condition];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s failure to provide reasonable
accommodation was a substantial factor in causing [name of
plaintiff]’s harm.
[In determining whether [name of plaintiff]’s [e.g., physical condition]
limits [insert major life activity], you must consider the [e.g., physical
condition] [in its unmedicated state/without assistive devices/[describe
mitigating measures]].]
New September 2003; Revised April 2007, December 2007, April 2009, December
2009, June 2010, December 2011, June 2012, June 2013, May 2019, May 2023
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
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CACI No. 2541
may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such
as “condition,” “disease,” or “disorder.” Or it may be a specific health condition
such as “diabetes.”
For element 1, the court may need to instruct the jury on the statutory definition of
“employer” under the FEHA. Other covered entities under the FEHA include labor
organizations, employment agencies, and apprenticeship training programs. (See
Gov. Code, § 12940(a)–(d).)
This instruction is for use by both an employee and a job applicant. Select the
appropriate options in elements 2 and 5 depending on the plaintiff’s status.
If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i))
is alleged, omit “that limited [insert major life activity]” in elements 3 and 4 and do
not include the last paragraph. (Compare Gov. Code, § 12926(i) with Gov. Code,
§ 12926(j), (m) [no requirement that medical condition limit major life activity].)
In a case of perceived disability, include “[name of defendant] treated [name of
plaintiff] as if [he/she/nonbinary pronoun] had” in element 3, and delete optional
element 4. (See Gov. Code, § 12926(j)(4), (m)(4) [mental and physical disability
include being regarded or treated as disabled by the employer].) In a case of actual
disability, include “[name of plaintiff] had” in element 3, and give element 4.
If the existence of a qualifying disability is disputed, additional instructions defining
“physical disability,” “mental disability,” and “medical condition” may be required.
(See Gov. Code, § 12926(i), (j), (m).)
The California Supreme Court has held that under Government Code section
12940(a), the plaintiff is required to prove that he or she has the ability to perform
the essential duties of the job with or without reasonable accommodation. (See
Green v. State of California (2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390, 165
P.3d 118].) While the court left open the question of whether the same rule should
apply to cases under Government Code section 12940(m) (see id. at p. 265),
appellate courts have subsequently placed the burden on the employee to prove that
he or she would be able to perform the job duties with reasonable accommodation
(see element 5). (See Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757,
766 [123 Cal.Rptr.3d 562]; Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008)
166 Cal.App.4th 952, 973–979 [83 Cal.Rptr.3d 190].)
There may still be an unresolved issue if the employee claims that the employer
failed to provide the employee with other suitable job positions that the employee
might be able to perform with reasonable accommodation. The rule has been that
the employer has an affirmative duty to make known to the employee other suitable
job opportunities and to determine whether the employee is interested in, and
qualified for, those positions, if the employer can do so without undue hardship or if
the employer offers similar assistance or benefit to any other employees or has a
policy of offering such assistance or benefit to any other employees. (Prilliman v.
United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951 [62 Cal.Rptr.2d 142];
54
CACI No. 2541
see also Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745 [151
Cal.Rptr.3d 292]; Claudio v. Regents of the University of California (2005) 134
Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837]; Hanson v. Lucky Stores (1999) 74
Cal.App.4th 215, 226 [87 Cal.Rptr.2d 487].) In contrast, other courts have said that
it is the employee’s burden to prove that a reasonable accommodation could have
been made, i.e., that the employee was qualified for a position in light of the
potential accommodation. (See Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 978; see
also Cuiellette, supra, 194 Cal.App.4th at p. 767 [plaintiff proves he or she is a
qualified individual by establishing that he or she can perform the essential
functions of the position to which reassignment is sought].) The question of whether
the employee has to present evidence of other suitable job descriptions and prove
that a vacancy existed for a position that the employee could do with reasonable
accommodation may not be fully resolved.
No element has been included that requires the plaintiff to specifically request
reasonable accommodation. Unlike Government Code section 12940(n) on the
interactive process (see CACI No. 2546, Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process), section 12940(m) does
not specifically require that the employee request reasonable accommodation; it
requires only that the employer know of the disability. (See Prilliman, supra, 53
Cal.App.4th at pp. 950–951.)
Sources and Authority
• Reasonable Accommodation Required. Government Code section 12940(m).
• “Reasonable Accommodation” Explained. Government Code section 12926(p).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “There are three elements to a failure to accommodate action: ‘(1) the plaintiff
has a disability covered by the FEHA; (2) the plaintiff is a qualified individual
(i.e., he or she can perform the essential functions of the position); and (3) the
employer failed to reasonably accommodate the plaintiff’s disability.
[Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22
Cal.App.5th 1187, 1193–1194 [232 Cal.Rptr.3d 349].)
• “Under the FEHA, ‘reasonable accommodation’ means ‘a modification or
adjustment to the workplace that enables the employee to perform the essential
functions of the job held or desired.’ ” (Cuiellette, supra, 194 Cal.App.4th at p.
766.)
• “Reasonable accommodations include ‘[j]ob restructuring, part-time or modified
work schedules, reassignment to a vacant position, . . . and other similar
accommodations for individuals with disabilities.’ ” (Swanson v. Morongo
Unified School Dist. (2014) 232 Cal.App.4th 954, 968 [181 Cal.Rptr.3d 553],
original italics.)
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CACI No. 2541
• “The examples of reasonable accommodations in the relevant statutes and
regulations include reallocating nonessential functions or modifying how or
when an employee performs an essential function, but not eliminating essential
functions altogether. FEHA does not obligate the employer to accommodate the
employee by excusing him or her from the performance of essential functions.”
(Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375 [184
Cal.Rptr.3d 9].)
• “A term of leave from work can be a reasonable accommodation under FEHA,
and, therefore, a request for leave can be considered to be a request for
accommodation under FEHA.” (Moore v. Regents of University of California
(2016) 248 Cal.App.4th 216, 243 [206 Cal.Rptr.3d 841], internal citation
omitted.)
• “Failure to accommodate claims are not subject to the McDonnell Douglas
burden-shifting framework.” (Cornell v. Berkeley Tennis Club (2017) 18
Cal.App.5th 908, 926 [227 Cal.Rptr.3d 286].)
• “The question now arises whether it is the employees’ burden to prove that a
reasonable accommodation could have been made, i.e., that they were qualified
for a position in light of the potential accommodation, or the employers’ burden
to prove that no reasonable accommodation was available, i.e., that the
employees were not qualified for any position because no reasonable
accommodation was available. [¶¶] Applying Green’s burden of proof analysis to
section 12940(m), we conclude that the burden of proving ability to perform the
essential functions of a job with accommodation should be placed on the
plaintiff under this statute as well. First, . . . an employee’s ability to perform
the essential functions of a job is a prerequisite to liability under section
12940(m). Second, the Legislature modeled section 12940(m) on the federal
reasonable accommodation requirement (adopting almost verbatim the federal
statutory definition of ‘reasonable accommodation’ by way of example). Had the
Legislature intended the employer to bear the burden of proving ability to
perform the essential functions of the job, contrary to the federal allocation of
the burden of proof, . . . it could have expressly provided for that result, but it
did not. Finally, general evidentiary principles support allocating the burden of
proof on this issue to the plaintiff.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at
pp. 977–978, internal citations omitted.)
• “ ‘If the employee cannot be accommodated in his or her existing position and
the requested accommodation is reassignment, an employer must make
affirmative efforts to determine whether a position is available. [Citation.] A
reassignment, however, is not required if “there is no vacant position for which
the employee is qualified.” [Citations.] “The responsibility to reassign a disabled
employee who cannot otherwise be accommodated does ‘not require creating a
new job, moving another employee, promoting the disabled employee or
violating another employee’s rights . . . .” ’ [Citations.] “What is required is the
‘duty to reassign a disabled employee if an already funded, vacant position at the
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CACI No. 2541
same level exists.’ [Citations.]” [Citations.]’ ” (Furtado, supra, 212 Cal.App.4th
at p. 745.)
• “[A]n employee’s probationary status does not, in and of itself, deprive an
employee of the protections of FEHA, including a reasonable reassignment. The
statute does not distinguish between the types of reasonable accommodations an
employer may have to provide to employees on probation or in training and
those an employer may have to provide to other employees. We decline to read
into FEHA a limitation on an employee’s eligibility for reassignment based on
an employee’s training or probationary status. Instead, the trier of fact should
consider whether an employee is on probation or in training in determining
whether a particular reassignment is comparable in pay and status to the
employee’s original position.” (Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 724 [214 Cal.Rptr.3d 113], internal citations omitted.)
• “[A] disabled employee seeking reassignment to a vacant position ‘is entitled to
preferential consideration.’ ” (Swanson, supra, 232 Cal.App.4th at p. 970.)
• “ ‘Generally, “ ‘[t]he employee bears the burden of giving the employer notice of
the disability.’ ” ’ An employer, in other words, has no affirmative duty to
investigate whether an employee’s illness might qualify as a disability. ‘ “ ‘[T]he
employee can’t expect the employer to read his mind and know he secretly
wanted a particular accommodation and sue the employer for not providing it.
Nor is an employer ordinarily liable for failing to accommodate a disability of
which it had no knowledge.’ ” ’ ” (Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167 [217 Cal.Rptr.3d
258], internal citations omitted.)
• “ ‘[A]n employer “knows an employee has a disability when the employee tells
the employer about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by
observation.” ’ . . . [¶] ‘While knowledge of the disability can be inferred from
the circumstances, knowledge will only be imputed to the employer when the
fact of disability is the only reasonable interpretation of the known facts. “Vague
or conclusory statements revealing an unspecified incapacity are not sufficient to
put an employer on notice of its obligations under the [FEHA].” ’ ”
(Featherstone, supra, 10 Cal.App.5th at p. 1167, internal citations omitted.)
• “In other words, so long as the employer is aware of the employee’s condition,
there is no requirement that the employer be aware that the condition is
considered a disability under the FEHA. By the same token, it is insufficient to
tell the employer merely that one is disabled or requires an accommodation.”
(Cornell, supra, 18 Cal.App.5th at p. 938, internal citation omitted.)
• “ ‘ “ ‘This notice then triggers the employer’s burden to take “positive steps” to
accommodate the employee’s limitations. . . . [¶] . . . The employee, of course,
retains a duty to cooperate with the employer’s efforts by explaining [his or her]
disability and qualifications. [Citation.] Reasonable accommodation thus
envisions an exchange between employer and employee where each seeks and
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CACI No. 2541
shares information to achieve the best match between the [employee’s]
capabilities and available positions.’ ” ’ ” (Soria v. Univision Radio Los Angeles,
Inc. (2016) 5 Cal.App.5th 570, 598 [210 Cal.Rptr.3d 59].)
• “Employers must make reasonable accommodations to the disability of an
individual unless the employer can demonstrate that doing so would impose an
‘undue hardship.’ ” (Prilliman, supra, 53 Cal.App.4th at p. 947.)
• “ ‘Ordinarily the reasonableness of an accommodation is an issue for the jury.’ ”
(Prilliman, supra, 53 Cal.App.4th at p. 954, internal citation omitted.)
• “[T]he duty of an employer to provide reasonable accommodation for an
employee with a disability is broader under the FEHA than under the ADA.”
(Bagatti, supra, 97 Cal.App.4th at p. 362.)
• “[A]n employer is relieved of the duty to reassign a disabled employee whose
limitations cannot be reasonably accommodated in his or her current job only if
reassignment would impose an ‘undue hardship’ on its operations . . . .” (Atkins,
supra, 8 Cal.App.5th at p. 721.)
• “The question whether plaintiffs could perform the essential functions of a
position to which they sought reassignment is relevant to a claim for failure to
accommodate under section 12940, subdivision (m) . . . .” (Atkins, supra, 8
Cal.App.5th at p. 717.)
• “On these issues, which are novel to California and on which the federal courts
are divided, we conclude that employers must reasonably accommodate
individuals falling within any of FEHA’s statutorily defined ‘disabilities,’
including those ‘regarded as’ disabled, and must engage in an informal,
interactive process to determine any effective accommodations.” (Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 55 [43 Cal.Rptr.3d 874].)
• “While a claim of failure to accommodate is independent of a cause of action
for failure to engage in an interactive dialogue, each necessarily implicates the
other.” (Moore, supra, 248 Cal.App.4th at p. 242.)
• “[A] pretextual termination of a perceived-as-disabled employee’s employment in
lieu of providing reasonable accommodation or engaging in the interactive
process does not provide an employer a reprieve from claims for failure to
accommodate and failure to engage in the interactive process.” (Moore, supra,
248 Cal.App.4th at p. 244.)
• “Appellant also stated a viable claim under section 12940, subdivision (m),
which mandates that an employer provide reasonable accommodations for the
known physical disability of an employee. She alleged that she was unable to
work during her pregnancy, that she was denied reasonable accommodations for
her pregnancy-related disability and terminated, and that the requested
accommodations would not have imposed an undue hardship on [defendant]. A
finite leave of greater than four months may be a reasonable accommodation for
a known disability under the FEHA.” (Sanchez v. Swissport, Inc. (2013) 213
Cal.App.4th 1331, 1341 [153 Cal.Rptr.3d 367].)
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• “To the extent [plaintiff] claims the [defendant] had a duty to await a vacant
position to arise, he is incorrect. A finite leave of absence may be a reasonable
accommodation to allow an employee time to recover, but FEHA does not
require the employer to provide an indefinite leave of absence to await possible
future vacancies.” (Nealy, supra, 234 Cal.App.4th at pp. 377–378.)
• “While ‘a finite leave can be a reasonable accommodation under FEHA,
provided it is likely that at the end of the leave, the employee would be able to
perform . . . her duties,’ a finite leave is not a reasonable accommodation when
the leave leads directly to termination of employment because the employee’s
performance could not be evaluated while she was on the leave.” (Hernandez,
supra, 22 Cal.App.5th at p. 1194.)
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 977
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250–9:2285, 9:2345–9:2347 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.32[2][c], 41.51[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35, 115.92 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)
59
2548. Disability Discrimination—Refusal to Make Reasonable
Accommodation in Housing (Gov. Code, § 12927(c)(1))
[Name of plaintiff] claims that [name of defendant] refused to reasonably
accommodate [his/her/nonbinary pronoun] [select term to describe basis of
limitations, e.g., physical disability] as necessary to afford
[him/her/nonbinary pronoun] an equal opportunity to use and enjoy a
dwelling. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was the [specify defendant’s source of
authority to provide housing, e.g., owner] of [a/an] [specify nature of
housing at issue, e.g., apartment building];
2. That [name of plaintiff] [sought to rent/was living in/[specify other
efforts to obtain housing]] the [e.g., apartment];
3. That [name of plaintiff] had [a history of having] [a] [e.g., physical
disability] [that limited [insert major life activity]];
4. That [name of defendant] knew of, or should have known of, [name
of plaintiff]’s disability;
5. That in order to afford [name of plaintiff] an equal opportunity to
use and enjoy the [e.g., apartment], it was necessary to [specify
accommodation required];
6. That it was reasonable to [specify accommodation];
7. That [name of defendant] refused to make this accommodation.
New May 2017; Revised May 2020
Directions for Use
This instruction is for use in a case alleging discrimination in housing based on a
failure to reasonably accommodate a disability. Under the Fair Employment and
Housing Act, “discrimination” includes the “refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity to
use and enjoy a dwelling.” (Gov. Code, § 12927(c)(1).)
In the introductory paragraph, select a term to describe the source of the plaintiff’s
limitations. It may be a statutory term such as “physical disability,” “mental
disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a
general term such as “condition,” “disease,” or “disorder.” Or it may be a specific
health condition such as “diabetes.” Use the term in element 3.
In element 2, if the plaintiff encountered a barrier before actually submitting an
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CACI No. 2548
application, such as discovering a policy that would make it impossible to live in
the unit, specify what the plaintiff did to obtain the housing.
In element 3, select the bracketed language on “history” of disability if the claim of
discrimination is based on a history of disability rather than a current actual
disability.
Modify element 3 if the plaintiff was not actually disabled or had a history of
disability, but alleges denial of accommodation because the plaintiff was perceived
to be disabled or associated with someone who has, or is perceived to have, a
disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].)
In element 5, explain the accommodation in rules, policies, practices that is alleged
to be needed.
Sources and Authority
• “Discrimination” Defined Regarding Housing Disability Accommodations.
Government Code section 12927(c)(1).
• “Disability” Defined for Housing Discrimination. Government Code section
12955.3.
• “Housing” Defined. Government Code section 12927(d).
• “ ‘FEHA in the housing area is thus intended to conform to the general
requirements of federal law in the area and may provide greater protection
against discrimination.’ In other words, the FHA provides a minimum level of
protection that FEHA may exceed. Courts often look to cases construing the
FHA, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of
1990 when interpreting FEHA.” (Auburn Woods I Homeowners Assn. v. Fair
Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 [18
Cal.Rptr.3d 669], internal citations omitted.)
• “[T]he basic principles applicable in employment cases should also apply in the
housing context.” (Brown v. Smith (1997) 55 Cal.App.4th 767, 782 [64
Cal.Rptr.2d 301].)
• “In order to establish discrimination based on a refusal to provide reasonable
accommodations, a party must establish that he or she (1) suffers from a
disability as defined in FEHA, (2) the discriminating party knew of, or should
have known of, the disability, (3) accommodation is necessary to afford an equal
opportunity to use and enjoy the dwelling, and (4) the discriminating party
refused to make this accommodation.” (Auburn Woods I Homeowners Assn.,
supra, 121 Cal.App.4th at p.1592.)
• “FEHA prohibits, as unlawful discrimination, a ‘refusal to make reasonable
accommodations in rules, policies, practices, or services when these
accommodations may be necessary to afford a disabled person equal opportunity
to use and enjoy a dwelling.’ ‘In order to establish discrimination based on a
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CACI No. 2548
refusal to provide reasonable accommodations, a party must establish that he or
she (1) suffers from a disability as defined in FEHA, (2) the discriminating party
knew of, or should have known of, the disability, (3) accommodation is
necessary to afford an equal opportunity to use and enjoy the dwelling, and (4)
the discriminating party refused to make this accommodation.’ ” (Roman v. BRE
Properties, Inc. (2015) 237 Cal.App.4th 1040, 1051 [188 Cal.Rptr.3d 537],
internal citation omitted.)
• “We note that, currently, section 12955.3 explicitly states that ‘disability’
includes ‘any physical or mental disability as defined in Section 12926.’ That
statute in turn defines ‘mental disability’ to include “any mental or psychological
disorder or condition . . . that limits a major life activity’, that is, ‘makes the
achievement of the major life activity difficult.’ ‘Major life activities’ is to be
broadly construed, and includes ‘physical, mental, and social activities and
working.’ ” (Auburn Woods I Homeowners Assn., supra, 121 Cal.App.4th at p.
1592, internal citations omitted.)
• “ ‘If a landlord is skeptical of a tenant’s alleged disability or the landlord’s
ability to provide an accommodation, it is incumbent upon the landlord to
request documentation or open a dialogue.’ This obligation to ‘open a dialogue’
with a party requesting a reasonable accommodation is part of an interactive
process in which each party seeks and shares information.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1598, internal citation omitted.)
• “This evidence established the requisite causal link between the [defendant]’s
no-pets policy and the interference with the [plaintiffs]’ use and enjoyment of
their condominium.” (Auburn Woods I Homeowners Assn., supra, 121
Cal.App.4th at p. 1593.)
• “When the reasons for a delay in offering a reasonable accommodation are
subject to dispute, the matter is left for the trier of fact to resolve. The
administrative law judge properly characterized this lengthy delay as a refusal to
provide reasonable accommodation.” (Auburn Woods I Homeowners Assn.,
supra, 121 Cal.App.4th at p. 1599, internal citation omitted.)
• “We reiterate that the FEHC did not rule that companion pets are always a
reasonable accommodation for individuals with mental disabilities. Each inquiry
is fact specific and requires a case-by-case determination.” (Auburn Woods I
Homeowners Assn., supra, 121 Cal.App.4th at p. 1593.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice, Reasonable Accommodations Under the Fair Housing Act
(May 17, 2004), www.justice.gov/sites/default/files/crt/legacy/2010/12/14/joint_
statement_ra.pdf
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1073–1076
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
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CACI No. 2548
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing Dis-
crimination, § 117.14 (Matthew Bender)
63
2600. Violation of CFRA Rights—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] [refused to grant [him/
her/nonbinary pronoun] [family care/medical] leave] [refused to return
[him/her/nonbinary pronoun] to the same or a comparable job when [his/
her/nonbinary pronoun] [family care/medical] leave ended] [other violation
of CFRA rights]. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of plaintiff] was eligible for [family care/medical]
leave;
2. That [name of plaintiff] [requested/took] leave [insert one of the
following:]
2. [for the birth of [name of plaintiff]’s child or bonding with the
child;]
2. [for the placement of a child with [name of plaintiff] for adoption
or foster care;]
2. [to care for [name of plaintiff]’s [child/parent/spouse/domestic
partner/grandparent/grandchild/sibling] who had a serious health
condition;]
2. [to care for an individual designated by [name of plaintiff] [who is
a blood relative/whose association to [name of plaintiff] is
equivalent to a family relationship] who had a serious health
condition;]
2. [for [name of plaintiff]’s own serious health condition that made
[him/her/nonbinary pronoun] unable to perform the functions of
[his/her/nonbinary pronoun] job with [name of defendant];]
2. [for [specify qualifying military exigency related to covered active
duty or call to covered active duty of a spouse, domestic partner,
child, or parent, e.g., [name of plaintiff]’s spouse’s upcoming military
deployment on short notice];]
3. That [name of plaintiff] provided reasonable notice to [name of
defendant] of [his/her/nonbinary pronoun] need for [family care/
medical] leave, including its expected timing and length. [If [name
of defendant] notified [his/her/nonbinary pronoun/its] employees
that 30 days’ advance notice was required before the leave was to
begin, then [name of plaintiff] must show that [he/she/nonbinary
pronoun] gave that notice or, if 30 days’ notice was not reasonably
possible under the circumstances, that [he/she/nonbinary pronoun]
gave notice as soon as possible];
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CACI No. 2600
4. That [name of defendant] [refused to grant [name of plaintiff]’s
request for [family care/medical] leave/refused to return [name of
plaintiff] to the same or a comparable job when [his/her/nonbinary
pronoun] [family care/medical] leave ended/other violation of CFRA
rights];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s [decision/conduct] was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised October 2008, May 2021, May 2023
Directions for Use
This instruction is intended for use when an employee claims violation of the CFRA
(Gov. Code, § 12945.1 et seq.). In addition to a qualifying employer’s refusal to
grant CFRA leave, CFRA violations include failure to provide benefits as required
by CFRA and loss of seniority.
In the fourth bracketed option of element 2, if the plaintiff’s relationship or
association with the designated individual is contested, select either a blood relative
or an associated person, or both, as applicable. (Gov. Code, § 12945.2(b)(2).) Omit
both options if the plaintiff’s relationship or association with the designated
individual is not contested.
The second-to-last bracketed option in element 2 does not include leave taken for
disability on account of pregnancy, childbirth, or related medical conditions. (Gov.
Code, § 12945.2(b)(5)(C).) If there is a dispute concerning the existence of a
“serious health condition,” the court must instruct the jury as to the meaning of this
term. (See Gov. Code, § 12945.2(b)(13).) If there is no dispute concerning the
relevant individual’s condition qualifying as a “serious health condition,” it is
appropriate for the judge to instruct the jury that the condition qualifies as a “serious
health condition.”
The last bracketed option in element 2 requires a qualifying exigency for military
family leave related to the covered active duty or call to covered active duty of the
employee’s spouse, domestic partner, child, or parent in the Armed Forces of the
United States. That phrase is defined in the Unemployment Insurance Code. (See
Unemp. Ins. Code, § 3302.2.)
Give the bracketed sentence under element 3 only if the facts involve an expected
birth, placement for adoption, or planned medical treatment, and there is evidence
that the employer required 30 days’ advance notice of leave. (See Cal. Code Regs.,
tit. 2, § 11091(a)(2).)
Sources and Authority
• California Family Rights Act. Government Code section 12945.2.
• “Designated Person” Defined. Government Code section 12945.2(b)(2).
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CACI No. 2600
• “Employer” Defined. Government Code section 12945.2(b)(4).
• “Parent” Defined. Government Code section 12945.2(b)(11) (Assem. Bill 1033;
Stats. 2021, ch. 327) [adding parent-in-law to the definition of parent].
• “Serious Health Condition” Defined. Government Code section 12945.2(b)(13).
• “An employee who takes CFRA leave is guaranteed that taking such leave will
not result in a loss of job security or other adverse employment actions. Upon an
employee’s timely return from CFRA leave, an employer must generally restore
the employee to the same or a comparable position. An employer is not required
to reinstate an employee who cannot perform her job duties after the expiration
of a protected medical leave.” (Rogers v. County of Los Angeles (2011) 198
Cal.App.4th 480, 487 [130 Cal.Rptr.3d 350], footnote and internal citations
omitted, superseded on other grounds by statute.)
• “A CFRA interference claim ‘ “consists of the following elements: (1) the
employee’s entitlement to CFRA leave rights; and (2) the employer’s
interference with or denial of those rights.” ’ ” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 601 [210 Cal.Rptr.3d 59].)
• “[C]ourts have distinguished between two theories of recovery under the CFRA
and the FMLA. ‘Interference’ claims prevent employers from wrongly interfering
with employees’ approved leaves of absence, and ‘retaliation’ or ‘discrimination’
claims prevent employers from terminating or otherwise taking action against
employees because they exercise those rights.” (Richey v. AutoNation, Inc.
(2015) 60 Cal.4th 909, 920 [182 Cal. Rptr. 3d 644, 341 P.3d 438].)
• “An interference claim under CFRA does not invoke the burden shifting analysis
of the McDonnell Douglas test. Rather, such a claim requires only that the
employer deny the employee’s entitlement to CFRA-qualifying leave. A CFRA
interference claim ‘consists of the following elements: (1) the employee’s
entitlement to CFRA leave rights; and (2) the employer’s interference with or
denial of those rights.’ ” (Moore v. Regents of University of California (2016)
248 Cal.App.4th 216, 250 [206 Cal.Rptr.3d 841], internal citations omitted.)
• “The right to reinstatement is unwaivable but not unlimited.” (Richey, supra, 60
Cal.4th at p. 919.)
• “It is not enough that [plaintiff’s] mother had a serious health condition.
[Plaintiff’s] participation to provide care for her mother had to be ‘warranted’
during a ‘period of treatment or supervision . . . .’ ” (Pang v. Beverly Hospital,
Inc. (2000) 79 Cal.App.4th 986, 995 [94 Cal.Rptr.2d 643], internal citation and
footnote omitted.)
• “[T]he relevant inquiry is whether a serious health condition made [plaintiff]
unable to do her job at defendant’s hospital, not her ability to do her essential
job functions ‘generally’ . . . .” (Lonicki v. Sutter Health Central (2008) 43
Cal.4th 201, 214 [74 Cal.Rptr.3d 570, 180 P.3d 321].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1060,
66
CACI No. 2600
1061
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-A, Overview
Of Key Statutes, ¶ 12:32 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:146,
12:390, 12:421, 12:857, 12:1201, 12:1300 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee
Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, §§ 8.25[2],
8.30[1], [2], 8.31[2], 8.32 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][a], [b] (Matthew Bender)
California Civil Practice: Employment Litigation § 5:40 (Thomson Reuters)
67
2601. Eligibility
To show that [he/she/nonbinary pronoun] was eligible for [family care/
medical] leave, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was an employee of [name of defendant];
[2. That [name of defendant] directly employed five or more
employees for a wage or salary;]
3. That at the time [name of plaintiff] [requested/began] leave, [he/
she/nonbinary pronoun] had more than 12 months of service with
[name of defendant] and had worked at least 1,250 hours for [name
of defendant] during the previous 12 months; and
4. That at the time [name of plaintiff] [requested/began] leave [name
of plaintiff] had taken no more than 12 weeks of family care or
medical leave in the 12-month period [define period].
New September 2003; Revised June 2011, May 2021
Directions for Use
The CFRA applies to employers who directly employ five or more employees (and
to the state and any political or civil subdivision of the state and cities of any size).
(Gov. Code, § 12945.2(b)(4).) Include element 2 only if there is a factual dispute
about the number of people the defendant directly employed for a wage or salary.
Sources and Authority
• Right to Family Care and Medical Leave. Government Code section 12945.2(a).
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-A, Overview
of Key Leave Laws, ¶ 12:32 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:87, 12:125,
12:390, 12:421, 12:1201, 12:1300 (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][c] (Matthew Bender)
68
2603. “Comparable Job” Explained
“Comparable job” means a job that is the same or close to the
employee’s former job in responsibilities, duties, pay, benefits, working
conditions, and schedule. It must be at the same location or a similar
geographic location.
New September 2003; Revised May 2021
Directions for Use
Give this instruction only if comparable job is an issue under the plaintiff’s CFRA
claim.
Sources and Authority
• Comparable Position. Government Code section 12945.2(b)(6).
• Comparable Position. Cal. Code Regs., tit. 2, § 11087(g).
• “[W]hile we will accord great weight and respect to the [Fair Employment and
Housing Commission]’s regulations that apply to the necessity for leave, along
with any applicable federal FMLA regulations that the Commission incorporated
by reference, we still retain ultimate responsibility for construing [CFRA].”
(Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 994–995 [94
Cal.Rptr.2d 643].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act
(CFRA),¶¶ 12:1138–12:1139, 12:1150, 12:1154–12:1156 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, §§ 8.30, 8.31
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.32[6][h] (Matthew Bender)
69
2610. Affirmative Defense—No Certification From Health Care
Provider
[Name of defendant] claims that [he/she/nonbinary pronoun/it] denied
[name of plaintiff]’s request for leave because [he/she/nonbinary pronoun]
did not provide a health care provider’s certification of
[his/her/nonbinary pronoun] need for leave. To succeed, [name of
defendant] must prove both of the following:
1. That [name of defendant] told [name of plaintiff] in writing that
[he/she/nonbinary pronoun/it] required written certification from
[name of plaintiff]’s health care provider to [grant/extend] leave;
and
2. That [name of plaintiff] did not provide [name of defendant] with
the required certification from a health care provider [within the
time set by [name of defendant] or as soon as reasonably possible].
New September 2003
Directions for Use
The time set by the defendant described in element 2 must be at least 15 days.
Sources and Authority
• Certification of Health Care Provider. Government Code section 12945.2(j).
• Certification of Health Care Provider: Child Care. Government Code section
12945.2(i).
• Certification of Health Care Provider: Return to Work. Government Code section
12945.2(j)(4).
• “Health Care Provider” Defined. Government Code section 12945.2(b)(10).
• Notice and Certification. Cal. Code Regs., tit. 2, § 11088(b).
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1058
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:311,
12:880, 12:883–12:884, 12:905, 12:915 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.26 (Matthew
Bender)
70
2611. Affirmative Defense—Fitness for Duty Statement
[Name of defendant] claims that [he/she/nonbinary pronoun/it] refused to
return [name of plaintiff] to work because [he/she/nonbinary pronoun] did
not provide a written statement from [his/her/nonbinary pronoun] health-
care provider that [he/she/nonbinary pronoun] was fit to return to work.
To succeed, [name of defendant] must prove both of the following:
1. That [name of defendant] has a uniformly applied practice or
policy that requires employees on leave because of their own
serious health condition to provide a written statement from their
health-care provider that they are able to return to work; and
2. That [name of plaintiff] did not provide [name of defendant] with a
written statement from [his/her/nonbinary pronoun] health-care
provider of [his/her/nonbinary pronoun] fitness to return to work.
New September 2003
Sources and Authority
• Certification on Health Care Provider: Child Care. Government Code section
12945.2(i).
• Certification of Health Care Provider: Return to Work. Government Code section
12945.2(j)(4).
• “Health Care Provider” Defined. Government Code section 12945.2(b)(10).
• Notice and Certification. Cal. Code Regs., tit. 2, § 11088(b).
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family and
Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:311,
12:880, 12:884, 12:915 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.28 (Matthew
Bender)
71
2704. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code,
§§ 203, 218)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] is entitled to
recover a penalty based on [name of defendant]’s failure to pay [his/her/
nonbinary pronoun] [wages/insert other claim] when due after [name of
plaintiff]’s employment ended. [Name of defendant] was required to pay
[name of plaintiff] all wages owed [on the date that/within 72 hours of the
date that] [name of plaintiff]’s employment ended.
You must decide whether [name of plaintiff] has proved [he/she/nonbinary
pronoun] is entitled to recover a penalty. I will decide the amount of the
penalty, if any, to be imposed. To recover this penalty, [name of plaintiff]
must prove both of the following:
1. That [name of plaintiff]’s employment with [name of defendant]
ended; and
2. That [name of defendant] willfully failed to pay [name of plaintiff]
all wages when due.
The term “willfully” means only that the employer intentionally failed or
refused to pay the wages. It does not imply a need for any additional
bad motive.
[Name of plaintiff] must also prove the following:
1. [Name of plaintiff]’s daily wage rate at the time [his/her/nonbinary
pronoun] employment with [name of defendant] ended; and
2. [The date on which [name of defendant] finally paid [name of
plaintiff] all wages due/That [name of defendant] never paid [name
of plaintiff] all wages].
[The term “wages” includes all amounts for labor performed by an
employee, whether the amount is calculated by time, task, piece,
commission, or some other method.]
New September 2003; Revised June 2005, May 2019, May 2020, November 2021
Directions for Use
The first part of this instruction sets forth the elements required to obtain a waiting
time penalty under Labor Code section 203. The second part is intended to instruct
the jury on the facts required to assist the court in calculating the amount of waiting
time penalties. Some or all of these facts may be stipulated, in which case they may
be omitted from the instruction. Select between the factual scenarios in element 2 of
the second part: the employer eventually paid all wages due or the employer never
paid the wages due.
72
CACI No. 2704
The court must determine when final wages are due based on the circumstances of
the case and applicable law. (See Lab. Code, §§ 201, 202.) Final wages are
generally due on the day an employee is discharged by the employer (Lab. Code,
§ 201(a)), but are not due for 72 hours if an employee quits without notice. (Lab.
Code, § 202(a).)
If there is a factual dispute, for example, whether plaintiff gave advance notice of
the intention to quit, or whether payment of final wages by mail was authorized by
plaintiff, the court may be required to give further instruction to the jury.
The definition of “wages” may be deleted if it is included in other instructions.
Sources and Authority
• Wages of Discharged Employee Due Immediately. Labor Code section 201.
• Wages of Employee on Quitting. Labor Code section 202.
• Willful Failure to Pay Wages of Discharged Employee. Labor Code section 203.
• Right of Action for Unpaid Wages. Labor Code section 218.
• “Wages” Defined. Labor Code section 200.
• Payment for Accrued Vacation of Terminated Employee. Labor Code section
227.3.
• Wages Partially in Dispute. Labor Code section 206(a).
• Exemption for Certain Governmental Employers. Labor Code section 220(b).
• “Labor Code section 203 empowers a court to award ‘an employee who is
discharged or who quits’ a penalty equal to up to 30 days’ worth of the
employee’s wages ‘[i]f an employer willfully fails to pay’ the employee his full
wages immediately (if discharged) or within 72 hours (if he or she quits). It is
called a waiting time penalty because it is awarded for effectively making the
employee wait for his or her final paycheck. A waiting time penalty may be
awarded when the final paycheck is for less than the applicable wage—whether
it be the minimum wage, a prevailing wage, or a living wage.” (Diaz v. Grill
Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 867 [233 Cal.Rptr.3d 524],
original italics, internal citations omitted.)
• “ ‘[T]he public policy in favor of full and prompt payment of an employee’s
earned wages is fundamental and well established . . .’ and the failure to timely
pay wages injures not only the employee, but the public at large as well. We
have also recognized that sections 201, 202, and 203 play an important role in
vindicating this public policy. To that end, the Legislature adopted the penalty
provision as a disincentive for employers to pay final wages late. It goes without
saying that a longer statute of limitations for section 203 penalties provides
additional incentive to encourage employers to pay final wages in a prompt
manner, thus furthering the public policy.” (Pineda v. Bank of America, N.A.
(2010) 50 Cal.4th 1389, 1400 [117 Cal.Rptr.3d 377, 241 P.3d 870], internal
citations omitted.)
• “ ‘The plain purpose of [Labor Code] sections 201 and 203 is to compel the
73
CACI No. 2704
immediate payment of earned wages upon a discharge.’ The prompt payment of
an employee’s earned wages is a fundamental public policy of this state.” (Kao
v. Holiday (2017) 12 Cal.App.5th 947, 962 [219 Cal.Rptr.3d 580], internal
citation omitted.)
• “The statutory policy favoring prompt payment of wages applies to employees
who retire, as well as those who quit for other reasons.” (McLean v. State (2016)
1 Cal.5th 615, 626–627 [206 Cal.Rptr.3d 545, 377 P.3d 796].)
• “[M]issed-break premium pay constitutes wages for purposes of Labor Code
section 203, and so waiting time penalties are available under that statute if the
premium pay is not timely paid.” (Naranjo v. Spectrum Security Services, Inc.
(2022) 13 Cal.5th 93, 117 [293 Cal.Rptr.3d 599, 509 P.3d 956].)
• “[A]n employer may not delay payment for several days until the next regular
pay period. Unpaid wages are due immediately upon discharge. This requirement
is strictly applied and may not be ‘undercut’ by company payroll practices or
‘any industry habit or custom to the contrary.’ ” (Kao, supra, 12 Cal.App.5th at
p. 962, original italics, internal citation omitted.)
• “ ‘ “[T]o be at fault within the meaning of [section 203], the employer’s refusal
to pay need not be based on a deliberate evil purpose to defraud workmen of
wages which the employer knows to be due. As used in section 203, ‘willful’
merely means that the employer intentionally failed or refused to perform an act
which was required to be done.” . . .’ ” (Gonzalez v. Downtown LA Motors, LP
(2013) 215 Cal.App.4th 36, 54 [155 Cal.Rptr.3d 18].)
• “In civil cases the word ‘willful’ as ordinarily used in courts of law, does not
necessarily imply anything blameable, or any malice or wrong toward the other
party, or perverseness or moral delinquency, but merely that the thing done or
omitted to be done, was done or omitted intentionally. It amounts to nothing
more than this: That the person knows what he is doing, intends to do what he is
doing, and is a free agent.” (Nishiki v. Danko Meredith, P.C. (2018) 25
Cal.App.5th 883, 891 [236 Cal.Rptr.3d 626].)
• “[A]n employer’s reasonable, good faith belief that wages are not owed may
negate a finding of willfulness.” (Choate v. Celite Corp. (2013) 215 Cal.App.4th
1460, 1468 [155 Cal.Rptr.3d 915].)
• “A ‘good faith dispute’ that any wages are due occurs when an employer
presents a defense, based in law or fact which, if successful, would preclude any
recover[y] on the part of the employee. The fact that a defense is ultimately
unsuccessful will not preclude a finding that a good faith dispute did exist.”
(Kao, supra, 12 Cal.App.5th at p. 963.)
• “A ‘good faith dispute’ excludes defenses that ‘are unsupported by any evidence,
are unreasonable, or are presented in bad faith.’ Any of the three precludes a
defense from being a good faith dispute. Thus, [defendant]’s good faith does not
cure the objective unreasonableness of its challenge or the lack of evidence to
support it.” (Diaz, supra, 23 Cal.App.5th at pp. 873–874, original italics, internal
citations omitted.)
74
CACI No. 2704
• “A proper reading of section 203 mandates a penalty equivalent to the
employee’s daily wages for each day he or she remained unpaid up to a total of
30 days. . . . [¶] [T]he critical computation required by section 203 is the
calculation of a daily wage rate, which can then be multiplied by the number of
days of nonpayment, up to 30 days.” (Mamika v. Barca (1998) 68 Cal.App.4th
487, 493 [80 Cal.Rptr.2d 175].)
• “ ‘A tender of the wages due at the time of the discharge, if properly made and
in the proper amount, terminates the further accumulation of penalty, but it does
not preclude the employee from recovering the penalty already accrued.’ ”
(Oppenheimer v. Sunkist Growers, Inc. (1957) 153 Cal.App.2d Supp. 897, 899
[315 P.2d 116], citation omitted.)
• “[Plaintiff] fails to distinguish between a request for statutory penalties provided
by the Labor Code for employer wage-and-hour violations, which were
recoverable directly by employees well before the Act became part of the Labor
Code, and a demand for ‘civil penalties,’ previously enforceable only by the
state’s labor law enforcement agencies. An example of the former is section 203,
which obligates an employer that willfully fails to pay wages due an employee
who is discharged or quits to pay the employee, in addition to the unpaid wages,
a penalty equal to the employee’s daily wages for each day, not exceeding 30
days, that the wages are unpaid.” (Caliber Bodyworks, Inc. v. Superior Court
(2005) 134 Cal.App.4th 365, 377–378 [36 Cal.Rptr.3d 31].)
• “In light of the unambiguous statutory language, as well as the practical
difficulties that would arise under defendant’s interpretation, we conclude there is
but one reasonable construction: section 203(b) contains a single, three-year
limitations period governing all actions for section 203 penalties irrespective of
whether an employee’s claim for penalties is accompanied by a claim for unpaid
final wages.” (Pineda, supra, 50 Cal.4th at p. 1398.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 437–439
Chin et al., California Practice Guide: Employment Litigation, Ch. 1-A,
Introduction—Background, ¶ 1:22 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B,
Compensation—Coverage and Exemptions—In General, ¶ 11:121 (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D,
Compensation—Payment of Wages, ¶¶ 11:456, 11:470.1, 11:510, 11:513–11:515 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J,
Compensation—Enforcing California Laws Regulating Employee Compensation,
¶¶ 11:1458–11:1459, 11:1461–11:1461.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B,
Remedies—Contract Damages, ¶ 17:148 (The Rutter Group)
75
CACI No. 2704
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies
Under Wage and Hour Laws, § 5.40 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 250.16[2][d], 250.30 et seq. (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:74 (Thomson Reuters)
76
2740. Violation of Equal Pay Act—Essential Factual Elements
(Lab. Code, § 1197.5)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was paid at a
wage rate that is less than the rate paid to employees of [the opposite
sex/another race/another ethnicity]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] was paid less than the rate paid to [a]
person[s] of [the opposite sex/another race/another ethnicity]
working for [name of defendant];
2. That [name of plaintiff] was performing substantially similar work
as the other person[s], considering the overall combination of
skill, effort, and responsibility required; and
3. That [name of plaintiff] was working under similar working
conditions as the other person[s].
New May 2018; Revised January 2019, November 2019, May 2020
Directions for Use
The California Equal Pay Act prohibits paying employees at lower wage rates than
rates paid to employees of the opposite sex or a different race or ethnicity for
substantially similar work. (Lab. Code, § 1197.5(a), (b).) An employee receiving less
than the wage to which the employee is entitled may bring a civil action to recover
the balance of the wages, including interest, and an equal amount as liquidated
damages. Costs and attorney fees may also be awarded. (Lab. Code, § 1197.5(h).)
There is no requirement that an employee show discriminatory intent as an element
of the claim. (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622–625, 629
[3 Cal.Rptr.3d 844].)
This instruction presents singular and plural options for the comparator, the
employee or employees whose pay and work are being compared to the plaintiff’s to
establish a violation of the Equal Pay Act. The statute refers to employees of the
opposite sex or different race or ethnicity. There is language in cases, however, that
suggests that a single comparator (e.g., one woman to one man) is sufficient. (See
Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324 [55 Cal.Rptr.3d
732] [plaintiff had to show that she is paid lower wages than a male comparator,
italics added]; Green, supra, 111 Cal.App.4th at p. 628 [plaintiff in a section 1197.5
action must first show that the employer paid a male employee more than a female
employee for equal work, italics added].) No California case has expressly so held,
however.
There are a number of defenses that the employer may assert to defend what
appears to be an improper pay differential. (Lab. Code, § 1197.5(a), (b).) See CACI
77
CACI No. 2740
No. 2741, Affırmative Defense—Different Pay Justified, and CACI No. 2742, Bona
Fide Factor Other Than Sex, Race, or Ethnicity, for instructions on the employer’s
affirmative defenses. (See Lab. Code, § 1197.5(a)(1), (b)(1).)
Sources and Authority
• Right to Equal Pay Based on Gender, Race, or Ethnicity. Labor Code section
1197.5(a), (b).
• Private Right of Action to Enforce Equal Pay Claim. Labor Code section
1197.5(h).
• “This section was intended to codify the principle that an employee is entitled to
equal pay for equal work without regard to gender.” (Jones v. Tracy School Dist.
(1980) 27 Cal.3d 99, 104 [165 Cal.Rptr. 100, 611 P.2d 441].)
• “To prove a prima facie case of wage discrimination, ‘a plaintiff must establish
that, based on gender, the employer pays different wages to employees doing
substantially similar work under substantially similar conditions. [Footnote
omitted.]’ ‘If that prima facie showing is made, the burden shifts to the employer
to prove the disparity is permitted by one of the EPA’s [four] statutory
exceptions—[such as,] that the disparity is based on a factor other than sex.’ But
a plaintiff must show ‘not only that she [was] paid lower wages than a male
comparator for equal work, but that she has selected the proper
comparator.’ ‘The [EPA] does not prohibit variations in wages; it prohibits
discriminatory variations in wages. . . . [Accordingly,] “a comparison to a
specifically chosen employee should be scrutinized closely to determine its
usefulness.” ’ ” (Allen v. Staples, Inc. (2022) 84 Cal.App.5th 188, 194 [299
Cal.Rptr.3d 779], original italics, internal citations omitted.)
• “[T]he plaintiff in a section 1197.5 action must first show that the employer paid
a male employee more than a female employee ‘ “for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions.” ’ ” (Green, supra, 111
Cal.App.4th at p. 628.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 355 et seq., 430, 431
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1075 et seq. (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.14 (Matthew Bender)
78
VF-2708. Meal Break Violations—Employer Records Showing
Noncompliance (Lab. Code, §§ 226.7, 512)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] work for [name of defendant] for one or
more workdays for a period lasting longer than five hours?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Do [name of defendant]’s records show any missed meal breaks,
meal breaks of less than 30 minutes, or meal breaks taken too
late in a workday?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
3. How many meal breaks do the records show as missed, less than
30 minutes, or taken too late in a workday?
3. meal breaks
3. Answer question 4.
4. For each meal break included in your answer to question 3, did
[name of defendant] prove [he/she/nonbinary pronoun/it] provided a
meal break that complies with the law?
4. Yes No
4. If your answer to question 4 is yes, stop here, answer no further
questions, and have the presiding juror sign and date this form.
If you answered no, then answer question 5.
5. Considering by workday the meal breaks determined in question
3, for how many workdays did [name of defendant] fail to prove
that [he/she/nonbinary pronoun/it] provided meal breaks that
comply with the law?
5. workdays
5. Answer question 6.
6. For the workdays determined in question 5, what is the amount
of pay owed?
79
CACI No. 2708
6. $
Signed:
Presiding Juror
Dated:
[After this verdict form has/After all verdict forms have] been signed,
notify the [clerk/bailiff/court attendant] that you are ready to present
your verdict in the courtroom.
New May 2023
Directions for Use
This verdict form is based on CACI No. 2765, Meal Break Violations—Introduction,
and CACI No. 2766B, Meal Break Violations—Rebuttable Presumption—Employer
Records. Use this verdict form if the plaintiff’s meal break claims involve the
rebuttable presumption of a violation based on an employer’s records showing
missed meal breaks, meal breaks of less than 30 minutes, or meal breaks taken too
late in a workday. See also verdict form CACI No. VF-2707, Meal Break Violations.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is asked to determine prejudgment interest for any meal or rest break
violations (Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93,
121–122 [293 Cal.Rptr.3d 599, 509 P.3d 956]), this verdict form may be augmented
for the jury to make any factual findings that are required in order to calculate the
amount of prejudgment interest.
80
VF-2709. Meal Break Violations—Inaccurate or Missing Employer
Records (Lab. Code, §§ 226.7, 512)
We answer the questions submitted to us as follows:
1. Did [name of plaintiff] work for [name of defendant] for one or
more workdays for a period lasting longer than five hours?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [name of defendant] keep [accurate] records of the start and
end times for meal breaks?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
3. For how many meal breaks were [accurate] records of the start
and end times for meal breaks not kept?
3. meal breaks
3. Answer question 4.
4. For each meal break included in your answer to question 3, did
[name of defendant] prove [he/she/nonbinary pronoun/it] provided a
meal break that complies with the law?
4. Yes No
4. If your answer to question 4 is yes, stop here, answer no further
questions, and have the presiding juror sign and date this form.
If you answered no, then answer question 5.
5. Considering by workday the meal breaks determined in question
3, for how many workdays did [name of defendant] fail to prove
that [he/she/nonbi nary pronoun/it] provided meal breaks that
comply with the law?
5. workdays
5. Answer question 6.
6. For the workdays determined in question 5, what is the amount
of pay owed?
6. $
81
CACI No. 2709
Signed:
Presiding Juror
Dated:
[After this verdict form has/After all verdict forms have] been signed,
notify the [clerk/bailiff/court attendant] that you are ready to present
your verdict in the courtroom.
New May 2023
Directions for Use
This verdict form is based on CACI No. 2765, Meal Break Violations—Introduction,
and CACI No. 2766B, Meal Break Violations—Rebuttable Presumption—Employer
Records. Use this verdict form if the plaintiff’s meal break claims involve the
rebuttable presumption of a violation based on an employer’s inaccurate or missing
records. If only missing records are at issue, omit “accurate” from questions 2 and
3. See also verdict form CACI No. VF-2707, Meal Break Violations.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is asked to determine prejudgment interest for any meal or rest break
violations (Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93,
121–122 [293 Cal.Rptr.3d 599, 509 P.3d 956]), this verdict form may be augmented
for the jury to make any factual findings that are required in order to calculate the
amount of prejudgment interest.
82
3103. Neglect—Essential Factual Elements (Welf. & Inst. Code,
§ 15610.57)
[Name of plaintiff] claims that [he/she/nonbinary pronoun/[name of
decedent]] was neglected by [[name of individual defendant]/ [and] [name of
employer defendant]] in violation of the Elder Abuse and Dependent Adult
Civil Protection Act. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [[name of individual defendant]/[name of employer defendant]’s
employee] had a substantial caretaking or custodial relationship
with [name of plaintiff/decedent], involving ongoing responsibility
for [his/her/nonbinary pronoun] basic needs, which an able-bodied
and fully competent adult would ordinarily be capable of
managing without assistance;
2. That [name of plaintiff/decedent] was [65 years of age or older/a
dependent adult] while [he/she/nonbinary pronoun] was in [[name
of individual defendant]’s/[name of employer defendant]’s
employee’s] care or custody;
3. That [[name of individual defendant]/[name of employer defendant]’s
employee] failed to use the degree of care that a reasonable
person in the same situation would have used in providing for
[name of plaintiff/decedent]’s basic needs, including [insert one or
more of the following:]
3. [assisting in personal hygiene or in the provision of food, clothing,
or shelter;]
3. [providing medical care for physical and mental health needs;]
3. [protecting [name of plaintiff/decedent] from health and safety
hazards;]
3. [preventing malnutrition or dehydration;]
3. [insert other grounds for neglect;]
4. That [name of plaintiff/decedent] was harmed; and
5. That [[name of individual defendant]’s/[name of employer
defendant]’s employee’s] conduct was a substantial factor in
causing [name of plaintiff/decedent]’s harm.
New September 2003; Revised December 2005, June 2006, October 2008, January
2017
83
CACI No. 3103
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act (the Act) by the victim of elder neglect, or by
the survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage), in the Damages series.
If the plaintiff seeks the enhanced remedies of attorney fees and costs, and in the
case of a wrongful death, the decedent’s pain and suffering, give CACI No. 3104,
Neglect—Enhanced Remedies Sought, in addition to this instruction. (See Welf. &
Inst. Code, § 15657.)
If the individual responsible for the neglect is a defendant in the case, use “[name of
individual defendant]” throughout. If only the individual’s employer is a defendant,
use “[name of employer defendant]’s employee” throughout.
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give either CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
The Act does not extend to cases involving professional negligence against health-
care providers as defined by the California Medical Injury Compensation Reform
Act of 1975 (MICRA) unless the professional had a substantial caretaking or
custodial relationship with the elder or dependent adult patient, involving ongoing
responsibility for one or more basic needs. (Winn v. Pioneer Medical Group, Inc.
(2016) 63 Cal.4th 148, 152 [202 Cal.Rptr.3d 447, 370 P.3d 1011]; see Welf. & Inst.
Code, § 15657.2; Civ. Code, § 3333.2(c)(2).)
The instructions in this series are not intended to cover every circumstance in which
a plaintiff may bring a cause of action under the Elder Abuse and Dependent Adult
Civil Protection Act.
Sources and Authority
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Neglect” Defined. Welfare and Institutions Code section 15610.57.
• Claims for Professional Negligence Excluded. Welfare and Institutions Code
section 15657.2.
• “It is true that statutory elder abuse includes ‘neglect as defined in Section
15610.57,’ which in turn includes negligent failure of an elder custodian ‘to
provide medical care for [the elder’s] physical and mental health needs.’ . . .
‘[N]eglect’ within the meaning of Welfare and Institutions Code section
15610.57 covers an area of misconduct distinct from ‘professional negligence.’
84
CACI No. 3103
As used in the Act, neglect refers not to the substandard performance of medical
services but, rather, to the ‘failure of those responsible for attending to the basic
needs and comforts of elderly or dependent adults, regardless of their
professional standing, to carry out their custodial obligations.’ Thus, the statutory
definition of ‘neglect’ speaks not of the undertaking of medical services, but of
the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court
(2004) 32 Cal.4th 771, 783 [11 Cal.Rptr.3d 222, 86 P.3d 290], original italics,
internal citations omitted.)
• “The Elder Abuse Act does not ‘apply whenever a doctor treats any elderly
patient. Reading the act in such a manner would radically transform medical
malpractice liability relative to the existing scheme.’ ” (Alexander v. Scripps
Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 223 [232 Cal.Rptr.3d
733], original italics.)
• “We granted review to consider whether a claim of neglect under the Elder
Abuse Act requires a caretaking or custodial relationship—where a person has
assumed significant responsibility for attending to one or more of those basic
needs of the elder or dependent adult that an able-bodied and fully competent
adult would ordinarily be capable of managing without assistance. Taking
account of the statutory text, structure, and legislative history of the Elder Abuse
Act, we conclude that it does.” (Winn, supra, 63 Cal.4th at p. 155.)
• “[T]he Act does not apply unless the defendant health care provider had a
substantial caretaking or custodial relationship, involving ongoing responsibility
for one or more basic needs, with the elder patient. It is the nature of the elder
or dependent adult’s relationship with the defendant—not the defendant’s
professional standing—that makes the defendant potentially liable for neglect.”
(Winn, supra, 63 Cal.4th at p. 152.)
• “It must be determined, on a case-by-case basis, whether the specific
responsibilities assumed by a defendant were sufficient to give rise to a
substantial caretaking or custodial relationship. The fact that [another caregiver]
provided for a large number of decedent’s basic needs does not, in itself, serve
to insulate defendants from liability under the Elder Abuse Act if the services
they provided were sufficient to give rise to a substantial caretaking or custodial
relationship.” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382,
405 [289 Cal.Rptr.3d 430].)
• “[E]ven where statutory definitions of ‘dependent adult’ or ‘care custodian’ are
satisfied, ‘[i]t must be determined, on a case-by-case basis, whether the specific
responsibilities assumed by a defendant were sufficient to give rise to a
substantial caretaking or custodial relationship.’ ” (Kruthanooch v. Glendale
Adventist Medical Center (2022) 83 Cal.App.5th 1109, 1131 [299 Cal.Rptr.3d
908], internal citation omitted.)
• “The Act seems premised on the idea that certain situations place elders and
dependent adults at heightened risk of harm, and heightened remedies relative to
conventional tort remedies are appropriate as a consequence. Blurring the
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CACI No. 3103
distinction between neglect under the Act and conduct actionable under ordinary
tort remedies—even in the absence of a care or custody relationship—risks
undermining the Act’s central premise. Accordingly, plaintiffs alleging
professional negligence may seek certain tort remedies, though not the
heightened remedies available under the Elder Abuse Act.” (Winn, supra, 63
Cal.4th at p. 159, internal citation omitted.)
• “ ‘[I]t is the defendant’s relationship with an elder or a dependent adult—not the
defendant’s professional standing or expertise—that makes the defendant
potentially liable for neglect.’ For these reasons, Winn better supports the
conclusion that the majority of [defendant]’s interactions with decedent were
custodial. [Defendant] has cited no authority allowing or even encouraging a
court to assess care and custody status on a task-by-task basis, and the Winn
court’s focus on the extent of dependence by a patient on a health care provider
rather than on the nature of the particular activities that comprised the patient-
provider relationship counsels against adopting such an approach.” (Stewart v.
Superior Court (2017) 16 Cal.App.5th 87, 103–104 [224 Cal.Rptr.3d 219].)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “Neglect includes the failure to assist in personal hygiene, or in the provision of
food, clothing, or shelter; the failure to provide medical care for physical and
mental health needs; the failure to protect from health and safety hazards; and
the failure to prevent malnutrition or dehydration.” (Avila v. Southern California
Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843 [230 Cal.Rptr.3d 42].)
• “[T]he statutory definition of neglect set forth in the first sentence of Welfare
and Institutions Code section 15610.57 is substantially the same as the ordinary
definition of neglect.” (Conservatorship of Gregory v. Beverly Enterprises, Inc.
(2000) 80 Cal.App.4th 514, 521 [95 Cal.Rptr.2d 336].)
• “[N]eglect as a form of abuse under the Elder Abuse Act refers ‘to the failure of
those responsible for attending to the basic needs and comforts of elderly or
dependent adults, regardless of their professional standing, to carry out their
custodial obligations.’ ” (Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396, 404 [129 Cal.Rptr.3d 895].)
• “It seems to us, then, that respecting the patient’s right to consent or object to
surgery is a necessary component of ‘provid[ing] medical care for physical and
mental health needs.’ Conversely, depriving a patient of the right to consent to
surgery could constitute a failure to provide a necessary component of what we
think of as ‘medical care.’ ” (Stewart, supra, 16 Cal.App.5th at p. 107, internal
citation omitted.)
• “[A] violation of staffing regulations here may provide a basis for finding
neglect. Such a violation might constitute a negligent failure to exercise the care
that a similarly situated reasonable person would exercise, or it might constitute
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CACI No. 3103
a failure to protect from health and safety hazards . . . . The former is the
definition of neglect under the Act, and the latter is just one nonexclusive
example of neglect under the Act.” (Fenimore v. Regents of University of
California (2016) 245 Cal.App.4th 1339, 1348−1349 [200 Cal.Rptr.3d 345].)
• “Disagreements between physicians and the patient or surrogate about the type
of care being provided does not give rise to an elder abuse cause of action.”
(Alexander, supra, 23 Cal.App.5th at p. 223.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865–1871
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.70–2.71
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[3] (Matthew Bender)
87
3200. Failure to Repurchase or Replace Consumer Good After
Reasonable Number of Repair Opportunities—Essential Factual
Elements (Civ. Code, § 1793.2(d))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of defendant]’s failure to repurchase or replace [a/an] [consumer
good] after a reasonable number of repair opportunities. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] bought [a/an] [consumer good]
[from/distributed by/manufactured by] [name of defendant];
2. That [name of defendant] gave [name of plaintiff] a warranty by
[insert at least one of the following:]
2. [making a written statement that [describe alleged express
warranty];] [or]
2. [showing [him/her/nonbinary pronoun] a sample or model of the
[consumer good] and representing, by words or conduct, that [his/
her/nonbinary pronoun] [consumer good] would match the quality
of the sample or model;]
3. That the [consumer good] [insert at least one of the following:]
3. [did not perform as stated for the time specified;] [or]
3. [did not match the quality [of the [sample/model]] [or] [as set
forth in the written statement];]
4. [That [name of plaintiff] delivered the [consumer good] to [name of
defendant] or its authorized repair facilities for repair;]
4. [or]
4. [That [name of plaintiff] notified [name of defendant] in writing of
the need for repair because [he/she/nonbinary pronoun] reasonably
could not deliver the [consumer good] to [name of defendant] or its
authorized repair facilities because of the [size and weight/method
of attachment/method of installation] [or] [the nature of the
defect] of the [consumer good]]; [and]
5. That [name of defendant] or its representative failed to repair the
[consumer good] to match the [written statement/represented
quality] after a reasonable number of opportunities; [and]
6. [That [name of defendant] did not replace the [consumer good] or
reimburse [name of plaintiff] an amount of money equal to the
purchase price of the [consumer good], less the value of its use by
[name of plaintiff] before discovering the defect[s].]
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CACI No. 3200
[A written statement need not include the words “warranty” or
“guarantee,” but if those words are used, a warranty is created. It is also
not necessary for [name of defendant] to have specifically intended to
create a warranty. A warranty is not created if [name of defendant]
simply stated the value of the [consumer good] or gave an opinion about
the [consumer good]. General statements concerning customer satisfaction
do not create a warranty.]
New September 2003; Revised April 2007, December 2007, December 2011
Directions for Use
An instruction on the definition of “consumer good” may be necessary if that issue
is disputed. Civil Code section 1791(a) provides: “ ‘Consumer goods’ means any
new product or part thereof that is used, bought, or leased for use primarily for
personal, family, or household purposes, except for clothing and consumables.
‘Consumer goods’ shall include new and used assistive devices sold at retail.”
Select the alternative in element 4 that is appropriate to the facts of the case.
Regarding element 4, if the plaintiff claims that the consumer goods could not be
delivered for repair, the judge should decide whether written notice of
nonconformity is required. The statute, Civil Code section 1793.2(c), is unclear on
this point.
Depending on the circumstances of the case, further instruction on element 6 may
be needed to clarify how the jury should calculate “the value of its use” during the
time before discovery of the defect.
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof is necessary, add the
following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] [did not match the quality [of
the [sample/model]]/as set forth in the written statement];
See also CACI No. 1243, Notification/Reasonable Time.
If appropriate to the facts, add: “It is not necessary for [name of plaintiff] to prove
the cause of a defect in the [consumer good].” The Song-Beverly Consumer
Warranty Act does not require a consumer to prove the cause of the defect or
failure, only that the consumer good “did not conform to the express warranty.”
(See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102, fn. 8
[109 Cal.Rptr.2d 583].)
In addition to sales of consumer goods, the Consumer Warranty Act applies to
leases. (Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified for use
in cases involving an express warranty in a lease of consumer goods.
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CACI No. 3200
See also CACI No. 3202, “Repair Opportunities” Explained.
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• “Express Warranty” Defined. Civil Code section 1791.2.
• Express Warranty Made by Someone Other Than Manufacturer. Civil Code
section 1795.
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d).
• Extension of Warranty. Civil Code section 1793.1(a)(2).
• Buyer’s Delivery of Nonconforming Goods. Civil Code section 1793.2(c).
• Distributor or Seller of Used Consumer Goods. Civil Code section 1795.5.
• Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.
• Extension of Warranty Period for Repairs. Civil Code section 1793.1(a)(2).
• Tolling of Warranty Period for Nonconforming Goods. Civil Code section
1795.6.
• “ ‘The Song-Beverly Act is a remedial statute designed to protect consumers
who have purchased products covered by an express warranty . . . . One of the
most significant protections afforded by the act is . . . that “if the manufacturer
or its representative in this state does not service or repair the goods to conform
to the applicable express warranties after a reasonable number of attempts, the
manufacturer shall either replace the goods or reimburse the buyer in an amount
equal to the purchase price paid by the buyer . . . .” . . .’ In providing these
remedies, the Legislature has not required that the consumer maintain possession
of the goods at all times. All that is necessary is that the consumer afford the
manufacturer a reasonable number of attempts to repair the goods to conform to
the applicable express warranties.” (Martinez v. Kia Motors America, Inc. (2011)
193 Cal.App.4th 187, 191 [122 Cal.Rptr.3d 497], internal citation omitted.)
• “Broadly speaking, the Act regulates warranty terms; imposes service and repair
obligations on manufacturers, distributors and retailers who make express
warranties; requires disclosure of specified information in express warranties;
and broadens a buyer’s remedies to include costs, attorney fees and civil
penalties . . . . [¶] [T]he purpose of the Act has been to provide broad relief to
purchasers of consumer goods with respect to warranties.” (National R.V., Inc. v.
Foreman (1995) 34 Cal.App.4th 1072, 1080 [40 Cal.Rptr.2d 672].)
• “[S]ection 1793.2, subdivision (d)(2), differs from section 1793.2, subdivision
(d)(1), in that it gives the new motor vehicle consumer the right to elect
restitution in lieu of replacement; provides specific procedures for the motor
vehicle manufacturer to follow in the case of replacement and in the case of
restitution; and sets forth rules for offsetting the amount attributed to the
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CACI No. 3200
consumer’s use of the motor vehicle. These ‘Lemon Law’ provisions clearly
provide greater consumer protections to those who purchase new motor vehicles
than are afforded under the general provisions of the Act to those who purchase
other consumer goods under warranty.” (National R.V., Inc., supra, 34
Cal.App.4th at p.1079, internal citations and footnotes omitted.)
• “[I]t is reasonable to conclude that all of the section 1780, subdivision (a)
remedies, save for injunctive relief, are encompassed within section 1782,
subdivision (b)’s reference to an ‘action for damages . . . under Section 1780.’
[¶] While it is true that damages and restitution are different remedies, serving
different purposes, section 1780, subdivision (a)’s use of the broader term ‘any
damage’ followed by the narrower term ‘actual damages’ within the list of
specific potential remedies suggests that the CLRA takes a more expansive view
of what constitutes ‘damages’ pursuant to its terms.” (DeNike v. Mathew
Enterprise, Inc. (2022) 76 Cal.App.5th 371, 379–380 [291 Cal.Rptr.3d 480].)
• “The legislative history of [Civil Code section 1793.2] demonstrates beyond any
question that . . . a differentiation between manufacturer and local representative
is unwarranted.” (Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 888
[263 Cal.Rptr. 64].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 52, 57, 321–334
1 California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 3.4, 3.8, 3.15, 3.87
2 California UCC Sales and Leases (Cont.Ed.Bar) Prelitigation Remedies, § 17.70
2 California UCC Sales and Leases (Cont.Ed.Bar) Litigation Remedies, § 18.25
2 California UCC Sales and Leases (Cont.Ed.Bar) Leasing of Goods, § 19.38
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions Involving
Defects and Repairs, § 91.15 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.100 et seq. (Matthew
Bender)
California Civil Practice: Business Litigation §§ 53:1, 53:3–53:4, 53:10–53:11,
53:14–53:17, 53:22–53:23, 53:26–53:27 (Thomson Reuters)
91
3210. Breach of Implied Warranty of Merchantability—Essential
Factual Elements
[Name of plaintiff] claims that the [consumer good] did not have the
quality that a buyer would reasonably expect. This is known as “breach
of an implied warranty.” To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] bought a[n] [consumer good]
[from/manufactured by] [name of defendant];
2. That at the time of purchase [name of defendant] was in the
business of [selling [consumer goods] to retail
buyers/manufacturing [consumer goods]];
3. That the [consumer good] [insert one or more of the following:]
3. [was not of the same quality as those generally acceptable in the
trade;] [or]
3. [was not fit for the ordinary purposes for which the goods are
used;] [or]
3. [was not adequately contained, packaged, and labeled;] [or]
3. [did not measure up to the promises or facts stated on the
container or label;]
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s breach of the implied warranty was a
substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2005, December 2014, November 2018
Directions for Use
If remedies are sought under the California Uniform Commercial Code, the plaintiff
may be required to prove reasonable notification within a reasonable time. (Cal. U.
Com. Code, § 2607(3).) If the court determines that proof of notice is necessary, add
the following element to this instruction:
That [name of plaintiff] took reasonable steps to notify [name of defendant]
within a reasonable time that the [consumer good] did not have the quality that
a buyer would reasonably expect;
See also CACI No. 1243, Notification/Reasonable Time. Instructions on damages
and causation may be necessary in actions brought under the California Uniform
Commercial Code.
In addition to sales of consumer goods, the Consumer Warranty Act applies to
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CACI No. 3210
leases. (See Civ. Code, §§ 1791(g)–(i), 1795.4.) This instruction may be modified
for use in cases involving the implied warranty of merchantability in a lease of
consumer goods.
Sources and Authority
• Buyer’s Action for Breach of Implied Warranties. Civil Code section 1794(a).
• Damages. Civil Code section 1794(b).
• Implied Warranties. Civil Code section 1791.1(a).
• Duration of Implied Warranties. Civil Code section 1791.1(c).
• Remedies. Civil Code section 1791.1(d).
• Implied Warranty of Merchantability. Civil Code section 1792.
• Damages for Breach; Accepted Goods. California Uniform Commercial Code
section 2714.
• “As defined in the Song-Beverly Consumer Warranty Act, ‘an implied warranty
of merchantability guarantees that ‘consumer goods meet each of the following:
[¶] (1) Pass without objection in the trade under the contract description. [¶] (2)
Are fit for the ordinary purposes for which such goods are used. [¶] (3) Are
adequately contained, packaged, and labeled. [¶] (4) Conform to the promises or
affirmations of fact made on the container or label.’ Unlike an express warranty,
‘the implied warranty of merchantability arises by operation of law’ and
‘provides for a minimum level of quality.’ ‘The California Uniform Commercial
Code separates implied warranties into two categories. An implied warranty that
the goods “shall be merchantable” and “fit for the ordinary purposes” is
contained in California Uniform Commercial Code section 2314. Whereas an
implied warranty that the goods shall be fit for a particular purpose is contained
in section 2315. [¶] Thus, there exists in every contract for the sale of goods by
a merchant a warranty that the goods shall be merchantable. The core test of
merchantability is fitness for the ordinary purpose for which such goods are
used. (§ 2314.)’ ” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19,
26–27 [65 Cal.Rptr.3d 695], internal citations omitted.)
• “Here the alleged wrongdoing is a breach of the implied warranty of
merchantability imposed by the Song-Beverly Consumer Warranty Act. Under
the circumstances of this case, which involves the sale of a used automobile, the
element of wrongdoing is established by pleading and proving (1) the plaintiff
bought a used automobile from the defendant, (2) at the time of purchase, the
defendant was in the business of selling automobiles to retail buyers, (3) the
defendant made express warranties with respect to the used automobile, and (4)
the automobile was not fit for ordinary purposes for which the goods are used.
Generally, ‘[t]he core test of merchantability is fitness for the ordinary purpose
for which such goods are used.’ ” (Gutierrez v. Carmax Auto Superstores
California (2018) 19 Cal.App.5th 1234, 1246 [248 Cal.Rptr.3d 61] [citing this
instruction], internal citations omitted.)
• “[T]he buyer of consumer goods must plead he or she was injured or damaged
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CACI No. 3210
by the alleged breach of the implied warranty of merchantability.” (Gutierrez,
supra, 19 Cal.App.5th at p. 1247.)
• “Unless specific disclaimer methods are followed, an implied warranty of
merchantability accompanies every retail sale of consumer goods in the state.”
(Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 619 [39
Cal.Rptr.2d 159].)
• The implied warranty of merchantability “does not ‘impose a general
requirement that goods precisely fulfill the expectation of the buyer. Instead, it
provides for a minimum level of quality.’ ” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295–1296 [44 Cal.Rptr.2d 526],
internal citation omitted.)
• “The [Song Beverly] act provides for both express and implied warranties, and
while under a manufacturer’s express warranty the buyer must allow for a
reasonable number of repair attempts within 30 days before seeking rescission,
that is not the case for the implied warranty of merchantability’s bulwark against
fundamental defects.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th
1538, 1545 [173 Cal.Rptr.3d 454].)
• “The Song-Beverly Act incorporates the provisions of [California Uniform
Commercial Code] sections 2314 and 2315. It ‘supplements, rather than
supersedes, the provisions of the California Uniform Commercial Code’ by
broadening a consumer’s remedies to include costs, attorney’s fees, and civil
penalties.” (American Suzuki Motor Corp., supra, 37 Cal.App.4th at p. 1295, fn.
2, internal citation omitted.)
• “The implied warranty of merchantability may be breached by a latent defect
undiscoverable at the time of sale. Indeed, ‘[u]ndisclosed latent defects . . . are
the very evil that the implied warranty of merchantability was designed to
remedy.’ In the case of a latent defect, a product is rendered unmerchantable,
and the warranty of merchantability is breached, by the existence of the unseen
defect, not by its subsequent discovery.” (Mexia v. Rinker Boat Co., Inc. (2009)
174 Cal.App.4th 1297, 1304–1305 [95 Cal.Rptr.3d 285], internal citations
omitted.)
• “[Defendant] suggests the ‘implied warranty of merchantability can be breached
only if the vehicle manifests a defect that is so basic it renders the vehicle unfit
for its ordinary purpose of providing transportation.’ As the trial court correctly
recognized, however, a merchantable vehicle under the statute requires more than
the mere capability of ‘just getting from point “A” to point “B.” ’ ” (Brand,
supra, 226 Cal.App.4th at p. 1546.)
• “[A]llegations showing an alleged defect that created a substantial safety hazard
would sufficiently allege the vehicle was not ‘fit for the ordinary purposes for
which such goods are used’ and, thus, breached the implied warranty of
merchantability.” (Gutierrez, supra, 19 Cal.App.5th at pp. 1247–1248.)
• “We recognize that ‘an important consideration under the implied warranty is
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CACI No. 3210
consumer safety.’ However, ‘vehicle safety is [not] the sole or dispositive
criterion in implied warranty cases, which may turn on other facts.’ ” (DeNike v.
Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 384–385 [291 Cal.Rptr.3d
480].)
• “The notice requirement of [former Civil Code] section 1769 . . . is not an
appropriate one for the court to adopt in actions by injured consumers against
manufacturers with whom they have not dealt. ‘As between the immediate
parties to the sale [the notice requirement] is a sound commercial rule, designed
to protect the seller against unduly delayed claims for damages. As applied to
personal injuries, and notice to a remote seller, it becomes a booby-trap for the
unwary.’ ” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 61 [27
Cal.Rptr. 697, 377 P.2d 897], internal citations omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 71, 72
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, §§ 3.21–3.23,
3.25–3.26
2 California UCC Sales & Leases (Cont.Ed.Bar) Leasing of Goods, §§ 19.31–19.32
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.31[2][a] (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.51
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.106 (Matthew Bender)
California Civil Practice: Business Litigation §§ 53:5–53:7 (Thomson Reuters)
95
3714. Ostensible Agency—Physician-Hospital
Relationship—Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of physician]’s [insert tort theory, e.g., negligence].
[Name of plaintiff] also claims that [name of hospital] is responsible for the
harm because [name of physician] was acting as its
[agent/employee/[insert other relationship]] when the incident occurred.
If you find that [name of physician]’s [insert tort theory] harmed [name of
plaintiff], then you must decide whether [name of hospital] is responsible
for the harm. [Name of hospital] is responsible if [name of plaintiff] proves
both of the following:
1. That [name of hospital] held itself out to the public as a provider
of care; and
2. That [name of plaintiff] looked to [name of hospital] for services,
rather than selecting [name of physician] for services.
A hospital holds itself out to the public as a provider of care unless the
hospital gives notice to a patient that a physician is not an
[agent/employee] of the hospital. However, the notice may not be
adequate if a patient in need of medical care cannot be expected to
understand or act on the information provided. You must take into
consideration [name of plaintiff]’s condition at the time and decide
whether any notice provided was adequate to give a reasonable person in
[name of plaintiff]’s condition notice of the disclaimer.
New November 2021; Revised May 2022
Directions for Use
Use this instruction only if a patient claims that a hospital defendant is responsible
for a physician’s negligence or other wrongful conduct as an ostensible agent.
Sources and Authority
• Agency Is Actual or Ostensible. Civil Code section 2298.
• “Ostensible Agency” Defined. Civil Code section 2300.
• “Ostensible Authority” Defined. Civil Code section 2317.
• When Principal is Bound by Ostensible Agent. Civil Code section 2334.
• “Where a patient seeks to hold a hospital liable for the negligence of a
physician, the doctrine of ostensible agency is now commonly expressed as
having two elements: ‘(1) conduct by the hospital that would cause a reasonable
person to believe that the physician was an agent of the hospital, and (2) reliance
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CACI No. 3714
on that apparent agency relationship by the plaintiff.’ Generally, the first element
is satisfied ‘when the hospital “holds itself out” to the public as a provider of
care,’ ‘unless it gave the patient contrary notice.’ Nonetheless, a hospital’s
‘contrary notice’ may be insufficient ‘to avoid liability in an emergency room
context, where an injured patient in need of immediate medical care cannot be
expected to understand or act upon that information.’ Reliance upon an apparent
agency is demonstrated ‘when the plaintiff “looks to” the hospital for services,
rather than to an individual physician.’ Ultimately, ‘there is really only one
relevant factual issue: whether the patient had reason to know that the physician
was not an agent of the hospital. As noted above, hospitals are generally deemed
to have held themselves out as the provider of services unless they gave the
patient contrary notice, and the patient is generally presumed to have looked to
the hospital for care unless he or she was treated by his or her personal
physician. Thus, unless the patient had some reason to know of the true
relationship between the hospital and the physician—i.e., because the hospital
gave the patient actual notice or because the patient was treated by his or her
personal physician—ostensible agency is readily inferred.’ ” (Markow v. Rosner
(2016) 3 Cal.App.5th 1027, 1038 [208 Cal.Rptr.3d 363], internal citations
omitted.)
• “It is well established in California that a hospital may be liable for the
negligence of physicians on the staff, unless the hospital has clearly notified the
patient that the treating physicians are not hospital employees and there is no
reason to believe the patient was unable to understand or act on the information.
This rule is founded on the theory of ostensible agency.” (Wicks v. Antelope
Valley Healthcare Dist. (2020) 49 Cal.App.5th 866, 882 [263 Cal.Rptr.3d 397].)
• “[T]he adequacy of the notice is only one of the many fact questions that arise
under ostensible agency. The jury must also determine whether the patient
entrusted herself to the hospital, whether the hospital selected the doctor, and
whether the patient reasonably believed the doctor was an agent of the hospital.”
(Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 641 [188
Cal.Rptr.3d 246].)
• “Effectively, all a patient needs to show is that he or she sought treatment at the
hospital, which is precisely what plaintiff alleged in this case. Unless the
evidence conclusively indicates that the patient should have known that the
treating physician was not the hospital’s agent, such as when the patient is
treated by his or her personal physician, the issue of ostensible agency must be
left to the trier of fact.” (Mejia v. Community Hospital of San Bernardino (2002)
99 Cal.App.4th 1448, 1458 [122 Cal.Rptr.2d 233].)
• “Neither Mejia, Whitlow, nor Markow is factually on point with this case. Yet all
three opinions inform our decision in this case. They rest on the same principle
of California law, that although a hospital may not control, direct or supervise
physicians on its staff, a hospital may be liable for their negligence on an
ostensible agency theory, unless (1) the hospital gave the patient actual notice
that the treating physicians are not hospital employees, and (2) there is no reason
97
CACI No. 3714
to believe the patient was unable to understand or act on the information, or (3)
the patient was treated by his or her personal physician and knew or should have
known the true relationship between the hospital and physician.” (Wicks, supra,
49 Cal.App.5th at p. 884; see Franklin v. Santa Barbara Cottage Hospital
(2022) 82 Cal.App.5th 395, 405 [297 Cal.Rptr.3d 850].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 105
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13 et seq.
(Matthew Bender)
98
3948. Punitive Damages—Individual and Corporate Defendants
(Corporate Liability Based on Acts of Named
Individual)—Bifurcated Trial (First Phase)
If you decide that [name of individual defendant]’s conduct caused [name
of plaintiff] harm, you must decide whether that conduct justifies an
award of punitive damages against [name of individual defendant] and, if
so, against [name of corporate defendant]. The amount, if any, of punitive
damages will be an issue decided later.
You may award punitive damages against [name of individual defendant]
only if [name of plaintiff] proves by clear and convincing evidence that
[name of individual defendant] engaged in that conduct with malice,
oppression, or fraud.
“Malice” means that a defendant acted with intent to cause injury or
that a defendant’s conduct was despicable and was done with a willful
and knowing disregard of the rights or safety of another. A defendant
acts with knowing disregard when the defendant is aware of the
probable dangerous consequences of the defendant’s conduct and
deliberately fails to avoid those consequences.
“Oppression” means that a defendant’s conduct was despicable and
subjected [name of plaintiff] to cruel and unjust hardship in knowing
disregard of [his/her/nonbinary pronoun] rights.
“Despicable conduct” is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
“Fraud” means that a defendant intentionally misrepresented or
concealed a material fact and did so intending to harm [name of
plaintiff].
You may also award punitive damages against [name of corporate
defendant] based on [name of individual]’s conduct if [name of plaintiff]
proves [one of] the following by clear and convincing evidence:
1. [That [name of individual defendant] was an officer, a director, or a
managing agent of [name of corporate defendant] who was acting
on behalf of [name of corporate defendant] at the time of the
conduct constituting malice, oppression, or fraud; [or]]
2. [That an officer, a director, or a managing agent of [name of
corporate defendant] had advance knowledge of the unfitness of
[name of individual defendant] and employed [him/her/nonbinary
pronoun] with a knowing disregard of the rights or safety of
others; [or]]
3. [That [name of individual defendant]’s conduct constituting malice,
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CACI No. 3948
oppression, or fraud was authorized by an officer, a director, or a
managing agent of [name of corporate defendant]; [or]]
4. [That an officer, a director, or a managing agent of [name of
corporate defendant] knew of [name of individual defendant]’s
conduct constituting malice, oppression, or fraud and adopted or
approved that conduct after it occurred.]
An employee is a “managing agent” if the employee exercises substantial
independent authority and judgment in corporate decisionmaking such
that the employee’s decisions ultimately determine corporate policy.
New September 2003; Revised April 2004, December 2005, May 2020
Directions for Use
Use CACI No. 3949, Punitive Damages—Individual and Corporate Defendants
(Corporate Liability Based on Acts of Named Individual)—Bifurcated Trial (Second
Phase), for the second phase of a bifurcated trial.
This instruction is intended to apply to cases where punitive damages are sought
against both an individual person and a corporate defendant. When damages are
sought only against a corporate defendant, use CACI No. 3944, Punitive Damages
Against Employer or Principal for Conduct of a Specific Agent or
Employee—Bifurcated Trial (First Phase), or CACI No. 3946, Punitive
Damages—Entity Defendant—Bifurcated Trial (First Phase). When damages are
sought against individual defendants, use CACI No. 3941, Punitive
Damages—Individual Defendant—Bifurcated Trial (First Phase).
For an instruction explaining “clear and convincing evidence,” see CACI No. 201,
Highly Probable—Clear and Convincing Proof.
If any of the alternative grounds for seeking punitive damages are inapplicable to
the facts of the case, they may be omitted.
See CACI No. 3940, Punitive Damages—Individual Defendant—Trial Not
Bifurcated, for additional sources and authority.
In an appropriate case, the jury may be instructed that a false promise or a
suggestion of a fact known to be false may constitute a misrepresentation as the
word “misrepresentation” is used in the instruction’s definition of “fraud.”
Sources and Authority
• When Punitive Damages Permitted. Civil Code section 3294.
• Deferral of Financial Condition Evidence to Second Stage. Civil Code section
3295(d).
• “[E]vidence of ratification of [agent’s] actions by [defendant] and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
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CACI No. 3948
• “[Section 3295(d)] affects the order of proof at trial, precluding the admission of
evidence of defendants’ financial condition until after the jury has returned a
verdict for plaintiffs awarding actual damages and found that one or more
defendants were guilty of ‘oppression, fraud or malice,’ in accordance with Civil
Code section 3294.” (City of El Monte v. Superior Court (1994) 29 Cal.App.4th
272, 274–275 [34 Cal.Rptr.2d 490], internal citations omitted.)
• “Evidence of the defendant’s financial condition is a prerequisite to an award of
punitive damages. In order to protect defendants from the premature disclosure
of their financial position when punitive damages are sought, the Legislature
enacted Civil Code section 3295.” (City of El Monte, supra, 29 Cal.App.4th at p.
276, internal citations omitted.)
• “[C]ourts have held it is reversible error to try the punitive damages issue to a
new jury after the jury which found liability has been excused.” (Rivera v.
Sassoon (1995) 39 Cal.App.4th 1045, 1048 [46 Cal.Rptr.2d 144], internal
citations omitted.)
• “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the
defendant is aware of the probable dangerous consequences of his or her conduct
and he or she willfully fails to avoid such consequences. [Citation.] Malice may
be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences. [Citation.]’ ” (Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 [164 Cal.Rptr.3d 112].)
• “Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that
refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ As amended to
include this word, the statute plainly indicates that absent an intent to injure the
plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the
plaintiffs’ interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34
Cal.Rptr.2d 898, 882 P.2d 894], internal citations omitted.)
• “[T]o support an award of punitive damages, the evidence must allow a
reasonable person to conclude it is highly probable that an officer, director, or
managing agent of defendant was ‘ “ ‘aware of the probable dangerous
consequences’ ” ’ of his conduct in connection with the company’s distribution
of its [product] to [plaintiff], and ‘ “ ‘willfully fail[ed] to avoid’ ” ’ those
consequences.” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80
Cal.App.5th 853, 873 [296 Cal.Rptr.3d 394].)
• “Section 3294 is no longer silent on who may be responsible for imputing
punitive damages to a corporate employer. For corporate punitive damages
liability, section 3294, subdivision (b), requires that the wrongful act giving rise
to the exemplary damages be committed by an ‘officer, director, or managing
agent.’ ” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19,
981 P.2d 944].)
• “[I]n performing, ratifying, or approving the malicious conduct, the agent must
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CACI No. 3948
be acting as the organization’s representative, not in some other capacity.”
(College Hospital, supra, 8 Cal.4th at p. 723, original italics.)
• “[T]he concept [of managing agent] assumes that such individual was acting in a
corporate or employment capacity when the conduct giving rise to the punitive
damages claim against the employer occurred.” (College Hospital, supra, 8
Cal.4th at p. 723.)
• “No purpose would be served by punishing the employer for an employee’s
conduct that is wholly unrelated to its business or to the employee’s duties
therein.” (College Hospital, supra, 8 Cal.4th at pp. 723–724.)
• “[T]he determination of whether certain employees are managing agents ‘ “does
not necessarily hinge on their ‘level’ in the corporate hierarchy. Rather, the
critical inquiry is the degree of discretion the employees possess in making
decisions . . . .” ’ ” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor
Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886 [164 Cal.Rptr.3d 811].)
• “Although it is generally true . . . that an employee’s hierarchy in a corporation
is not necessarily determinative of his or her status as a managing agent of a
corporation, evidence showing an employee’s hierarchy and job duties,
responsibilities, and authority may be sufficient, absent conclusive proof to the
contrary, to support a reasonable inference by a trier of fact that the employee is
a managing agent of a corporation.” (Davis v. Kiewit Pacific Co. (2013) 220
Cal.App.4th 358, 370 [162 Cal.Rptr.3d 805].)
• “[W]e conclude the Legislature intended the term ‘managing agent’ to include
only those corporate employees who exercise substantial independent authority
and judgment in their corporate decision making so that their decisions
ultimately determine corporate policy. The scope of a corporate employee’s
discretion and authority under our test is therefore a question of fact for decision
on a case-by-case basis.” (White, supra, 21 Cal.4th at pp. 566–567.)
• “In order to demonstrate that an employee is a true managing agent under
section 3294, subdivision (b), a plaintiff seeking punitive damages would have to
show that the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business.” (White, supra, 21 Cal.4th at p.
577.)
• “ ‘[C]orporate policy’ is the general principles which guide a corporation, or
rules intended to be followed consistently over time in corporate operations. A
‘managing agent’ is one with substantial authority over decisions that set these
general principles and rules.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160,
167–168 [99 Cal.Rptr.2d 435].)
• “The key inquiry thus concerns the employee’s authority to change or establish
corporate policy. The fact that an employee has a supervisory position with the
power to terminate employees under his or her control does not, by itself, render
the employee a managing agent. Nor does the fact that an employee supervises a
large number of employees necessarily establish that status.” (CRST, Inc. v.
102
CACI No. 3948
Superior Court (2017) 11 Cal.App.5th 1255, 1273 [218 Cal.Rptr.3d 664].)
• “ ‘[R]atification’ is the ‘[c]onfirmation and acceptance of a previous act.’ A
corporation cannot confirm and accept that which it does not actually know
about.” (Cruz, supra, 83 Cal.App.4th at p. 168.)
• “For purposes of determining an employer’s liability for punitive damages,
ratification generally occurs where, under the particular circumstances, the
employer demonstrates an intent to adopt or approve oppressive, fraudulent, or
malicious behavior by an employee in the performance of his job duties.”
(College Hospital, supra, 8 Cal.4th at p. 726.)
• “Corporate ratification in the punitive damages context requires actual
knowledge of the conduct and its outrageous nature.” (College Hospital, supra, 8
Cal.4th at p. 726.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1752–1756
California Tort Damages (Cont.Ed.Bar) Punitive Damages, §§ 14.13–14.14, 14.23
4 Levy et al., California Torts, Ch. 54, Punitive Damages, §§ 54.07, 54.24[4][d]
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.51[17]
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.24 et seq.
(Matthew Bender)
103
4562. Payment for Construction Services Rendered—Essential
Factual Elements (Bus. & Prof. Code, § 7031(a), (e))
[Name of plaintiff] claims that [name of defendant] owes [name of plaintiff]
money for construction services rendered. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] [[engaged/hired]/ [or] contracted with]
[name of plaintiff] to [specify contractor services];
2. That [name of plaintiff] had at all times during the performance of
construction services a valid contractor’s license;
3. That [name of plaintiff] performed these services;
4. That [name of defendant] has not paid [name of plaintiff] for the
construction services that [name of plaintiff] provided; and
5. The amount of money [name of defendant] owes [name of plaintiff]
for the construction services provided.
New May 2021
Directions for Use
Give this instruction in a case in which the plaintiff-contractor seeks to recover
compensation owed for services performed for which a license is required. (Bus. &
Prof. Code, § 7031(a).)
For element 2, licensure requirements may be satisfied by substantial compliance
with the licensure requirements. (Bus. & Prof. Code, § 7031(e).) If the court has
determined the defendant’s substantial compliance, modify element 2 accordingly,
and instruct the jury that the court has made the determination.
When licensure or proper licensure is controverted, the burden of proof to establish
licensure or proper licensure is on the contractor. (Bus. & Prof. Code, § 7031(d).)
Proof must be made by producing a verified certificate of licensure from the
Contractors State License Board.
For a case involving recovery of payment for services provided by an allegedly
unlicensed contractor, give CACI No. 4560, Recovery of Payments to Unlicensed
Contractor—Essential Factual Elements.
Sources and Authority
• Proof of Licensure. Business and Professions Code section 7031(d).
• “Contractor” Defined. Business and Professions Code section 7026.
• “[Contractor] has not alleged one contract, but rather a series of agreements for
each separate task that it was asked to perform. It may therefore seek
compensation under those alleged agreements that apply to tasks for which no
104
CACI No. 4562
license was required.” (Phoenix Mechanical Pipeline, Inc. v. Space Exploration
Technologies Corp. (2017) 12 Cal.App.5th 842, 853 [219 Cal.Rptr.3d 775].)
• “Section 7031, subdivision (e) states an exception to the license requirement of
subdivision (a). Subdivision (e) provides in part: ‘[T]he court may determine that
there has been substantial compliance with licensure requirements under this
section if it is shown at an evidentiary hearing that the person who engaged in
the business or acted in the capacity of a contractor (1) had been duly licensed
as a contractor in this state prior to the performance of the act or contract, (2)
acted reasonably and in good faith to maintain proper licensure, and (3) acted
promptly and in good faith to remedy the failure to comply with the licensure
requirements upon learning of the failure.’ ” (C. W. Johnson & Sons, Inc. v.
Carpenter (2020) 53 Cal.App.5th 165, 169 [265 Cal.Rptr.3d 895].)
• “[S]ection 7031 bars even a licensed general contractor in California from
bringing an action for compensation for an act or contract performed by an
unlicensed subcontractor where a license is required.” (Kim v. TWA Construction,
Inc. (2022) 78 Cal.App.5th 808, 831 [294 Cal.Rptr.3d 140].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 491
California Civil Practice: Real Property Litigation §§ 10:26–10:38 (Thomson
Reuters)
12 California Real Estate Law and Practice, Ch. 430, Licensing of Contractors,
§ 430.70 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.83
(Matthew Bender)
5 California Points and Authorities, Ch. 50A, Contracts: Performance, Breach, and
Defenses, § 50A.52 et seq. (Matthew Bender)
29 California Legal Forms, Ch. 88, Licensing of Contractors, § 88.18 (Matthew
Bender)
Miller & Starr, California Real Estate 4th §§ 32:68–32:84
105
4602. Affirmative Defense—Same Decision (Gov. Code,
§ 8547.8(e))
If [name of plaintiff] proves that [his/her/nonbinary pronoun] [making a
protected disclosure/refusing an illegal order] was a contributing factor
to [his/her/nonbinary pronoun] [discharge/specify other adverse action],
[name of defendant] is not liable if [he/she/nonbinary pronoun/it] proves by
clear and convincing evidence that [he/she/nonbinary pronoun/it] would
have discharged [name of plaintiff] anyway at that time, for legitimate,
independent reasons.
New December 2014; Renumbered from CACI No. 2443 and Revised June 2015
Directions for Use
Give this instruction in a so-called same-decision or mixed-motive case under the
California Whistleblower Protection Act. (See Gov. Code, § 8547 et seq.; CACI No.
4601, Protected Disclosure by State Employee—California Whistleblower Protection
Act—Essential Factual Elements.) A mixed-motive case is one in which there is
evidence of both a retaliatory reason and a legitimate reason for the adverse action.
Even if the jury finds that the retaliatory reason was a contributing factor, the
employer may avoid liability if it can prove by clear and convincing evidence that it
would have made the same decision anyway for a legitimate reason. (Gov. Code,
§ 8547.8(e).)
Select “refusing an illegal order” if the court has allowed the case to proceed based
on that basis. The affirmative defense statute includes refusing an illegal order as
protected activity along with making a protected disclosure. The statute that creates
the plaintiff’s cause of action does not expressly mention refusing an illegal order.
(Compare Gov. Code, § 8547.8(e) with Gov. Code, § 8547.2(c).) See the Directions
for Use to CACI No. 4601.
Sources and Authority
• California Whistleblower Protection Act. Government Code section 8547 et seq.
• Same-Decision Affirmative Defense. Government Code section 8547.8(e).
• “Guided by Lawson [v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703
[289 Cal.Rptr.3d 572, 503 P.3d 659]] and applying its reasoning, we conclude
that Government Code section 8547.10, subdivision (e), rather than McDonnell
Douglas, provides the relevant framework for analyzing claims under
Government Code section 8547.10.” (Scheer v. Regents of University of
California (2022) 76 Cal.App.5th 904, 916 [291 Cal.Rptr.3d 822].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 302–307A
106
CACI No. 4602
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-B,
Retaliation Under Other Whistleblower Statutes, ¶ 5:1790 et seq. (The Rutter
Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 118, Civil Service, § 118.56
(Matthew Bender)
3 California Points and Authorities, Ch. 36, Civil Service, § 36.40 (Matthew Bender)
107
4603. Whistleblower Protection—Essential Factual Elements (Lab.
Code, § 1102.5)
[Name of plaintiff] claims that [name of defendant] [discharged/[other
adverse employment action]] [him/her/nonbinary pronoun] in retaliation for
[his/her/nonbinary pronoun] [disclosure of information of/refusal to
participate in] an unlawful act. To establish this claim, [name of plaintiff]
must prove all of the following are more likely true than not true:
1. That [name of defendant] was [name of plaintiff]’s employer;
2. [That [[name of plaintiff] disclosed/[name of defendant] believed
that [name of plaintiff] [had disclosed/might disclose]] to a
[government agency/law enforcement agency/person with
authority over [name of plaintiff]/ [or] an employee with authority
to investigate, discover, or correct legal
[violations/noncompliance]] that [specify information disclosed];]
2. [or]
2. [That [name of plaintiff] [provided information to/testified before]
a public body that was conducting an investigation, hearing, or
inquiry;]
2. [or]
2. [That [name of plaintiff] refused to [specify activity in which plaintiff
refused to participate];]
3. [That [name of plaintiff] had reasonable cause to believe that the
information disclosed [a violation of a [state/federal] statute/[a
violation of/noncompliance with] a [local/state/federal] rule or
regulation];]
3. [or]
3. [That [name of plaintiff] had reasonable cause to believe that the
[information provided to/testimony before] the public body
disclosed [a violation of a [state/federal] statute/[a violation of/
noncompliance with] a [local/state/federal] rule or regulation];]
3. [or]
3. [That [name of plaintiff]’s participation in [specify activity] would
result in [a violation of a [state/federal] statute/[a violation of/
noncompliance with] a [local/state/federal] rule or regulation];]
4. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
5. That [[name of plaintiff]’s [disclosure of information/refusal to
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CACI No. 4603
[specify]]/[name of defendant]’s belief that [name of plaintiff] [had
disclosed/might disclose] information] was a contributing factor in
[name of defendant]’s decision to [discharge/[other adverse
employment action]] [name of plaintiff];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
A “contributing factor” is any factor, which alone or in connection with
other factors, tends to affect the outcome of a decision. A contributing
factor can be proved even when other legitimate factors also contributed
to the employer’s decision.
[The disclosure of policies that an employee believes to be merely unwise,
wasteful, gross misconduct, or the like, is not protected. Instead, [name of
plaintiff] must have reasonably believed that [name of defendant]’s policies
violated federal, state, or local statutes, rules, or regulations.]
[It is not [name of plaintiff]’s motivation for [his/her/nonbinary pronoun]
disclosure, but only the content of that disclosure, that determines
whether the disclosure is protected.]
[A disclosure is protected even though disclosing the information may be
part of [name of plaintiff]’s job duties.]
New December 2012; Revised June 2013, December 2013; Revoked June 2014;
Restored and Revised December 2014; Renumbered from CACI No. 2730 and
Revised June 2015; Revised June 2016, November 2019, May 2020, December
2022, May 2023
Directions for Use
The whistleblower protection statute of the Labor Code prohibits retaliation against
an employee who, or whose family member, discloses information about, or refuses
to participate in, an illegal activity. (Lab. Code, § 1102.5(b), (c), (h).) Liability may
be predicated on retaliation by “any person acting on behalf of the employer.” (Lab.
Code, § 1102.5(a)−(d).) Select any of the optional paragraphs as appropriate to the
facts of the case. For claims under Labor Code section 1102.5(c), the plaintiff must
show that the activity in question actually would result in a violation of or
noncompliance with a statute, rule, or regulation, which is a legal determination that
the court is required to make. (Nejadian v. County of Los Angeles (2019) 40
Cal.App.5th 703, 719 [253 Cal.Rptr.3d 404].)
Modifications to the instruction may be required if liability is predicated on an
agency theory and the agent is also a defendant. Modifications will also be required
if the retaliation is against an employee whose family member engaged in the
protected activity.
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CACI No. 4603
Select the first option for elements 2 and 3 for claims based on actual disclosure of
information or a belief that plaintiff disclosed or might disclose information. (Cf.
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635,
648−649 [163 Cal.Rptr.3d 392] [under prior version of statute, no liability for
anticipatory or preemptive retaliation based on fear that plaintiff might file a
complaint in the future].) Select the second options for providing information to or
testifying before a public body conducting an investigation, hearing, or inquiry.
Select the third options for refusal to participate in an unlawful activity, and instruct
the jury that the court has made the determination that the specified activity would
have been unlawful.
It has been held that a report of publicly known facts is not a protected disclosure.
(Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 858
[136 Cal.Rptr.3d 259].) Another court, however, has held that protection is not
necessarily limited to the first public employee to report unlawful acts to the
employer. (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538,
1548−1553 [176 Cal.Rptr.3d 268], disapproved on other grounds by Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 [289 Cal.Rptr.3d 572, 503
P.3d 659]; see Lab. Code, § 1102.5(b), (e).)
“Adverse employment action” is viewed the same as it is under the Fair
Employment and Housing Act. (Patten v. Grant Joint Union High School Dist.
(2005) 134 Cal.App.4th 1378, 1387 [37 Cal.Rptr.3d 113], disapproved on other
grounds by Lawson, supra, 12 Cal.5th at p. 718; see CACI No. 2505,
Retaliation─Essential Factual Elements.) Element 4 may be modified to allege
constructive discharge or adverse acts that might not be obviously prejudicial. See
CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510,
“Constructive Discharge” Explained, for instructions that may be adapted for use
with this instruction.
The employee must demonstrate by a preponderance of evidence that a protected
activity was a contributing factor in the adverse action against the employee.
(Lawson, supra, 12 Cal.5th at p. 718.) The employer may then attempt to prove by
clear and convincing evidence that the action would have been taken anyway for
legitimate, independent reasons even if the employee had not engaged in the
protected activities. (See Lab. Code, § 1102.6; CACI No. 4604, Affırmative
Defense—Same Decision.)
Sources and Authority
• Retaliation Against Whistleblower Prohibited. Labor Code section 1102.5.
• “[W]e now clarify that section 1102.6, and not McDonnell Douglas, supplies the
applicable framework for litigating and adjudicating section 1102.5
whistleblower claims.” (Lawson, supra, 12 Cal.5th at p. 712.)
• “By its terms, section 1102.6 describes the applicable substantive standards and
burdens of proof for both parties in a section 1102.5 retaliation case: First, it
must be ‘demonstrated by a preponderance of the evidence’ that the employee’s
protected whistleblowing was a ‘contributing factor’ to an adverse employment
110
CACI No. 4603
action. Then, once the employee has made that necessary threshold showing, the
employer bears ‘the burden of proof to demonstrate by clear and convincing
evidence’ that the alleged adverse employment action would have occurred ‘for
legitimate, independent reasons’ even if the employee had not engaged in
protected whistleblowing activities.” (Lawson, supra, 12 Cal.5th at p. 712,
internal citation omitted.)
• “In order to prove a claim under section 1102.5(b), the plaintiff must establish a
prima facie case of retaliation. It is well-established that such a prima facie case
includes proof of the plaintiff’s employment status.” (Bennett v. Rancho
California Water Dist. (2019) 35 Cal.App.5th 908, 921 [248 Cal.Rptr.3d 21],
internal citations omitted.)
• “To prove a claim of retaliation under this statute, the plaintiff ‘must demonstrate
that he or she has been subjected to an adverse employment action that
materially affects the terms, conditions, or privileges of employment.’ ‘Minor or
relatively trivial adverse actions by employers or fellow employees that, from an
objective perspective, are reasonably likely to do no more than anger or upset an
employee do not materially affect the terms or conditions of employment.’ This
requirement “ ‘guards against both “judicial micromanagement of business
practices” [citation] and frivolous suits over insignificant slights.’ ” (Francis v.
City of Los Angeles (2022) 81 Cal.App.5th 532, 540–541 [297 Cal.Rptr.3d 362],
internal citations omitted.)
• “[T]he purpose of . . . section 1102.5(b) ‘is to ‘ “encourag[e] workplace whistle-
blowers to report unlawful acts without fearing retaliation.” ’ ” (Diego v. Pilgrim
United Church of Christ (2014) 231 Cal.App.4th 913, 923 [180 Cal.Rptr.3d
359].)
• “Once it is determined that the activity would result in a violation or
noncompliance with a statute, rule, or regulation, the jury must then determine
whether the plaintiff refused to participate in that activity and, if so, whether that
refusal was a contributing factor in the defendant’s decision to impose an
adverse employment action on the plaintiff.” (Nejadian, supra, 40 Cal.App.5th at
p. 719.)
• “As a general proposition, we conclude the court could properly craft
instructions in conformity with law developed in federal cases interpreting the
federal whistleblower statute. As the court acknowledged, it was not bound by
such federal interpretations. Nevertheless, the court could properly conclude that
the jury required guidance as to what did and did not constitute ‘disclosing
information’ or a ‘protected disclosure’ under the California statutes.” (Mize-
Kurzman, supra, 202 Cal.App.4th at p. 847.)
• “The court erred in failing to distinguish between the disclosure of policies that
plaintiff believed to be unwise, wasteful, gross misconduct or the like, which are
subject to the [debatable differences of opinion concerning policy matters]
limitation, and the disclosure of policies that plaintiff reasonably believed
violated federal or state statutes, rules, or regulations, which are not subject to
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CACI No. 4603
this limitation, even if these policies were also claimed to be unwise, wasteful or
to constitute gross misconduct.” (Mize-Kurzman, supra, 202 Cal.App.4th at pp.
852–853.)
• “[I]t is not the motive of the asserted whistleblower, but the nature of the
communication that determines whether it is covered.” (Mize-Kurzman, supra,
202 Cal.App.4th at p. 852, original italics.)
• “[I]f we interpret section 1102.5 to require an employee to go to a different
public agency or directly to a law enforcement agency before he or she can be
assured of protection from retaliation, we would be encouraging public
employees who suspected wrongdoing to do nothing at all. Under the scenario
envisioned by the [defendant], if the employee reports his or her suspicions to
the agency, . . . , he or she will have to suffer any retaliatory conduct with no
legal recourse. If the employee reports suspicions to an outside agency or law
enforcement personnel, he or she risks subjecting the agency to negative
publicity and loss of public support which could ensue without regard to whether
the charges prove to be true. At the same time, a serious rift in the employment
relationship will have occurred because the employee did not go through official
channels within the agency which was prepared to investigate the charges. We
see no reason to interpret the statute to create such anomalous results.”
(Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 243 [101
Cal.Rptr.2d 893].)
• “Labor Code section 1102.5, subdivision (b) protects employee reports of
unlawful activity by third parties such as contractors and employees, as well [as]
unlawful activity by an employer. In support of our conclusion, we note that an
employer may have a financial motive to suppress reports of illegal conduct by
employees and contractors that reflect poorly on that employer.” (McVeigh v.
Recology San Francisco (2013) 213 Cal.App.4th 443, 471 [152 Cal.Rptr.3d 595],
internal citation omitted.)
• “We are persuaded that [instructing the jury that reporting publicly known facts
is not a protected disclosure] was a proper limitation on what constitutes
disclosure protected by California law.” (Mize-Kurzman, supra, 202 Cal.App.4th
at p. 858.)
• “The report of ‘publicly known’ information or ‘already known’ information is
distinct from a rule in which only the first employee to report or disclose
unlawful conduct is entitled to protection from whistleblower retaliation.”
(Hager, supra, 228 Cal.App.4th at p. 1552, disapproved on other grounds in
Lawson, supra, 12 Cal.5th at p. 718.)
• “Protection only to the first employee to disclose unlawful acts would defeat the
legislative purpose of protecting workplace whistleblowers, as employees would
not come forward to report unlawful conduct for fear that someone else already
had done so. The ‘first report’ rule would discourage whistleblowing. Thus, the
[defendant]’s interpretation is a disincentive to report unlawful conduct. We see
no such reason to interpret the statute in a manner that would contradict the
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purpose of the statute.” (Hager, supra, 228 Cal.App.4th at p. 1550, disapproved
on other grounds in Lawson, supra, 12 Cal.5th at p. 718.)
• “Matters such as transferring employees, writing up employees, and counseling
employees are personnel matters. ‘To exalt these exclusively internal personnel
disclosures with whistleblower status would create all sorts of mischief. Most
damagingly, it would thrust the judiciary into micromanaging employment
practices and create a legion of undeserving protected “whistleblowers” arising
from the routine workings and communications of the job site. . . .’ ” (Mueller
v. County of Los Angeles (2009) 176 Cal.App.4th 809, 822 [98 Cal.Rptr.3d
281].)
• “ ‘A wrongful termination action is viable where the employee alleges he [or
she] was terminated for reporting illegal activity which could cause harm, not
only to the interests of the employer but also to the public.’ ‘An action brought
under the whistleblower statute is inherently such an action.’ To preclude a
whistleblower from revealing improper conduct by the government based on
confidentiality would frustrate the legislative intent underlying the whistleblower
statutes. For reasons of public policy, actions against a public entity for claims
of discharge from or termination of employment grounded on a whistleblower
claim are not barred by governmental immunity.” (Whitehall v. County of San
Bernardino (2017) 17 Cal.App.5th 352, 365 [225 Cal.Rptr.3d 321], internal
citations omitted.)
• “Although [the plaintiff] did not expressly state in his disclosures that he
believed the County was violating or not complying with a specific state or
federal law, Labor Code section 1102.5, subdivision (b), does not require such an
express statement. It requires only that an employee disclose information and
that the employee reasonably believe the information discloses unlawful
activity.” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592–593 [248
Cal.Rptr.3d 696].)
• “Section 1102.6 requires whistleblower plaintiffs to show that retaliation was a
‘contributing factor’ in their termination, demotion, or other adverse action. This
means plaintiffs may satisfy their burden of proving unlawful retaliation even
when other, legitimate factors also contributed to the adverse action.” (Lawson,
supra, 12 Cal.5th at 713–714.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 302, 373, 374
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-A,
Retaliation Under Title VII and FEHA, ¶ 5:1538 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03[2][c] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
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CACI No. 4603
Termination and Discipline, §§ 100.42, 100.48, 100.60–100.61A (Matthew Bender)
114
4604. Affirmative Defense—Same Decision (Lab. Code, § 1102.6)
If [name of plaintiff] proves that [his/her/nonbinary pronoun] [disclosure of
information of/refusal to participate in] an unlawful act was a
contributing factor to [his/her/nonbinary pronoun] [discharge/[other
adverse employment action]], [name of defendant] is not liable if [he/she/
nonbinary pronoun/it] proves by clear and convincing evidence that [he/
she/nonbinary pronoun/it] would have [discharged/[other adverse
employment action]] [name of plaintiff] anyway at that time for legitimate,
independent reasons.
New December 2013; Renumbered from CACI No. 2731 and Revised June 2015,
December 2022
Directions for Use
Give this instruction in a so-called mixed-motive case under the whistleblower
protection statute of the Labor Code. (See Lab. Code, § 1102.5; CACI No. 4603,
Whistleblower Protection—Essential Factual Elements.) A mixed-motive case is one
in which there is evidence of both a retaliatory and a legitimate reason for the
adverse action. Even if the jury finds that the retaliatory reason was a contributing
factor, the employer may avoid liability if it can prove by clear and convincing
evidence that it would have made the same decision anyway for a legitimate reason.
(Lab. Code, § 1102.6.) For an instruction on the clear and convincing standard of
proof, see CACI No. 201, Highly Probable—Clear and Convincing Proof.
Sources and Authority
• Same-Decision Affirmative Defense. Labor Code section 1102.6.
• “[W]e now clarify that section 1102.6, and not McDonnell Douglas, supplies the
applicable framework for litigating and adjudicating section 1102.5
whistleblower claims.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12
Cal.5th 703, 712 [289 Cal.Rptr.3d 572, 503 P.3d 659].)
• “By its terms, section 1102.6 describes the applicable substantive standards and
burdens of proof for both parties in a section 1102.5 retaliation case: First, it
must be ‘demonstrated by a preponderance of the evidence’ that the employee’s
protected whistleblowing was a ‘contributing factor’ to an adverse employment
action. Then, once the employee has made that necessary threshold showing, the
employer bears ‘the burden of proof to demonstrate by clear and convincing
evidence’ that the alleged adverse employment action would have occurred ‘for
legitimate, independent reasons’ even if the employee had not engaged in
protected whistleblowing activities.” (Lawson, supra, 12 Cal.5th at p. 712,
internal citation omitted.)
• “It is not enough . . . that an employer shows it had a legitimate,
nondiscriminatory reason for the adverse employment action. Were that the
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standard, then an employer could satisfy its burden simply by showing it had
one legitimate reason for its action, even if several illegitimate reasons
principally motivated its decision. But that is not the applicable standard here.
Under section 1102.6, the employer must instead show ‘the alleged action would
have occurred for legitimate, independent reasons even if the employee had not
engaged in activities protected by Section 1102.5.’ ” (Vatalaro v. County of
Sacramento (2022) 79 Cal.App.5th 367, 379 [294 Cal.Rptr.3d 389], internal
citation omitted.)
• “[Plaintiff] points to Labor Code section 1102.6, which requires the employer to
prove a same-decision defense by clear and convincing evidence when a plaintiff
has proven by a preponderance of the evidence that the employer’s violation of
the whistleblower statute was a ‘contributing factor’ to the contested employment
decision. Yet the inclusion of the clear and convincing evidence language in one
statute does not suggest that the Legislature intended the same standard to apply
to other statutes implicating the same-decision defense.” (Harris v. City of Santa
Monica (2013) 56 Cal. 4th 203, 239 [152 Cal.Rptr.3d 392, 294 P.3d 49]; internal
citation omitted.)
• “[W]hen we refer to a same-decision showing, we mean proof that the employer,
in the absence of any discrimination, would have made the same decision at the
time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original
italics.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 373, 374
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-A,
Retaliation Under Title VII and FEHA, ¶ 5:1538 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.60 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.12 (Matthew Bender)
116
4700. Consumers Legal Remedies Act—Essential Factual
Elements (Civ. Code, § 1770)
[Name of plaintiff] claims that [name of defendant] engaged in unfair
methods of competition and unfair or deceptive acts or practices in a
transaction that resulted, or was intended to result, in the sale or lease of
goods or services to a consumer, and that [name of plaintiff] was harmed
by [name of defendant]’s violation. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] acquired, or sought to acquire, by
purchase or lease, [specify product or service] for personal, family,
or household purposes;
2. That [name of defendant] [specify one or more prohibited practices
from Civ. Code, § 1770(a), e.g., represented that [product or service]
had characteristics, uses, or benefits that it did not have];
3. That [name of plaintiff] was harmed; and
4. That [name of plaintiff]’s harm resulted from [name of defendant]’s
conduct.
[[Name of plaintiff]’s harm resulted from [name of defendant]’s conduct if
[name of plaintiff] relied on [name of defendant]’s representation. To prove
reliance, [name of plaintiff] need only prove that the representation was a
substantial factor in [his/her/nonbinary pronoun] decision.
[He/She/Nonbinary pronoun] does not need to prove that it was the
primary factor or the only factor in the decision.
If [name of defendant]’s representation of fact was material, reliance may
be inferred. A fact is material if a reasonable consumer would consider it
important in deciding whether to buy or lease the [goods/services].]
New November 2017
Directions for Use
Give this instruction for a claim under the Consumers Legal Remedies Act (CLRA).
The CLRA prohibits 27 distinct unfair methods of competition and unfair or
deceptive acts or practices with regard to consumer transactions. (See Civ. Code,
§ 1770(a).) In element 2, insert the prohibited practice or practices at issue in the
case.
The last two optional paragraphs address the plaintiff’s reliance on the defendant’s
conduct. CLRA claims not sounding in fraud do not require reliance. (See, e.g., Civ.
Code, § 1770(a)(19) [inserting an unconscionable provision in a contract].) Give
these paragraphs in a case sounding in fraud.
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CACI No. 4700
Many of the prohibited practices involve a misrepresentation made by the defendant.
(See, e.g., Civ. Code, § 1770(a)(4) [using deceptive representations or designations
of geographic origin in connection with goods or services].) In a misrepresentation
claim, the plaintiff must have relied on the information given. (Nelson v. Pearson
Ford Co. (2010) 186 Cal.App.4th 983, 1022 [112 Cal.Rptr.3d 607], disapproved of
on other grounds in Raceway Ford Cases (2016) 2 Cal.5th 161, 180 [211
Cal.Rptr.3d 244, 385 P.3d 397].) An element of reliance is that the information must
have been material (or important). (Collins v. eMachines, Inc. (2011) 202
Cal.App.4th 249, 256 [134 Cal.Rptr.3d 588].)
Other prohibited practices involve a failure to disclose information. (See Gutierrez v.
Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1258 [248
Cal.Rptr.3d 61]; see, e.g., Civ. Code, § 1770(a)(9) [advertising goods or services
with intent not to sell them as advertised].) Reliance in concealment cases is best
expressed in terms that the plaintiff would have behaved differently had the true
facts been known. (See Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23
Cal.Rptr.2d 101, 858 P.2d 568].) The next-to-last paragraph may be modified to
express reliance in this manner. (See CACI No. 1907, Reliance.)
The CLRA provides for class actions. (See Civ. Code, § 1781.) In a class action,
this instruction should be modified to state that only the named plaintiff’s reliance
on the defendant’s representation must be proved. Class-wide reliance does not
require a showing of actual reliance on the part of every class member. Rather, if all
class members have been exposed to the same material misrepresentations, class-
wide reliance will be inferred, unless rebutted by the defendant. (Vasquez v. Superior
Court (1971) 4 Cal.3d 800, 814–815 [94 Cal.Rptr. 796, 484 P.2d 964]; Occidental
Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 362–363 [134 Cal.Rptr. 388, 556
P.2d 750]; Massachusetts Mut. Life Ins. Co. v. Superior Court (2002) 97
Cal.App.4th 1282, 1293 [119 Cal.Rptr.2d 190].) In class cases then, exposure and
materiality are the only facts that need to be established to justify class-wide relief.
Those determinations are a part of the class certification analysis and will, therefore,
be within the purview of the court.
Sources and Authority
• Consumers Legal Remedies Act: Prohibited Practices. Civil Code section
1770(a).
• Consumers Legal Remedies Act: Private Cause of Action. Civil Code section
1780(a).
• “ ‘The CLRA makes unlawful, in Civil Code section 1770, subdivision (a) . . .
various “unfair methods of competition and unfair or deceptive acts or practices
undertaken by any person in a transaction intended to result or which results in
the sale or lease of goods or services to any consumer.” ’ The CLRA proscribes
27 specific acts or practices.” (Rubenstein v. The Gap, Inc. (2017) 14
Cal.App.5th 870, 880–881 [222 Cal.Rptr.3d 397], internal citation omitted.)
• “The Legislature enacted the CLRA ‘to protect consumers against unfair and
deceptive business practices and to provide efficient and economical procedures
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CACI No. 4700
to secure such protection.’ ” (Valdez v. Seidner-Miller, Inc. (2019) 33
Cal.App.5th 600, 609 [245 Cal.Rptr.3d 268].)
• “ ‘Whether a practice is deceptive, fraudulent, or unfair is generally a question of
fact which requires “consideration and weighing of evidence from both sides”
and which usually cannot be made on demurrer.’ ” (Brady v. Bayer Corp. (2018)
26 Cal.App.5th 1156, 1164 [237 Cal.Rptr.3d 683].)
• “The CLRA is set forth in Civil Code section 1750 et seq. . . . [U]nder the
CLRA a consumer may recover actual damages, punitive damages and attorney
fees. However, relief under the CLRA is limited to ‘[a]ny consumer who suffers
any damage as a result of the use or employment by any person of a method,
act, or practice’ unlawful under the act. As [defendant] argues, this limitation on
relief requires that plaintiffs in a CLRA action show not only that a defendant’s
conduct was deceptive but that the deception caused them harm.” (Massachusetts
Mutual Life Ins. Co., supra, 97 Cal.App.4th at p. 1292, original italics, internal
citations omitted.)
• “[T]he CLRA does not require lost injury or property, but does require damage
and causation. ‘Under Civil Code section 1780, subdivision (a), CLRA actions
may be brought “only by a consumer ‘who suffers any damage as a result of the
use or employment’ of a proscribed method, act, or practice. . . . Accordingly,
‘plaintiffs in a CLRA action [must] show not only that a defendant’s conduct
was deceptive but that the deception caused them harm.” ’ ” (Veera v. Banana
Republic, LLC (2016) 6 Cal.App.5th 907, 916, fn. 3 [211 Cal.Rptr.3d 769].)
• “ ‘To have standing to assert a claim under the CLRA, a plaintiff must have
“suffer[ed] any damage as a result of the . . . practice declared to be
unlawful.” ’ Our Supreme Court has interpreted the CLRA’s ‘any damage’
requirement broadly, concluding that the ‘phrase . . . is not synonymous with
“actual damages,” which generally refers to pecuniary damages.’ Rather, the
consumer must merely ‘experience some [kind of] damage,’ or ‘some type of
increased costs’ as a result of the unlawful practice.” (Hansen v. Newegg.com
Americas, Inc. (2018) 25 Cal.App.5th 714, 724 [236 Cal.Rptr.3d 61], internal
citations omitted.)
• “This language does not create an automatic award of statutory damages upon
proof of an unlawful act.” (Moran v. Prime Healthcare Management, Inc. (2016)
3 Cal.App.5th 1131, 1152 [208 Cal.Rptr.3d 303].)
• “[Civil Code section 1761(e)] provides a broad definition of ‘transaction’ as ‘an
agreement between a consumer and any other person, whether or not the
agreement is a contract enforceable by action, and includes the making of, and
the performance pursuant to, that agreement.’ ” (Wang v. Massey Chevrolet
(2002) 97 Cal.App.4th 856, 869 [118 Cal.Rptr.2d 770].)
• “ ‘While a plaintiff must show that the misrepresentation was an immediate
cause of the injury-producing conduct, the plaintiff need not demonstrate it was
the only cause. “ ‘It is not . . . necessary that [the plaintiff’s] reliance upon the
truth of the fraudulent misrepresentation be the sole or even the predominant or
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CACI No. 4700
decisive factor in influencing his conduct. . . . It is enough that the
representation has played a substantial part, and so has been a substantial factor,
in influencing his decision.’ [Citation.]” ’ In other words, it is enough if a
plaintiff shows that ‘ “in [the] absence [of the misrepresentation] the plaintiff ‘in
all reasonable probability’ would not have engaged in the injury-producing
conduct.’ [Citation.]’ ” (Veera, supra, 6 Cal.App.5th at p. 919, internal citations
omitted.)
• “Under the CLRA, plaintiffs must show actual reliance on the misrepresentation
and harm.” (Nelson, supra, 186 Cal.App.4th at p. 1022.)
• “[T]he failure to disclose material facts may be actionable under the CLRA in
certain situations. For purposes of the CLRA, ‘a fact is “material” if a
reasonable consumer would deem it important in determining how to act in the
transaction at issue.’ The concept of materiality is related to the issue of
causation. A causal link between the deceptive practice and damage to the
plaintiff is a necessary element of a CLRA cause of action. A misrepresentation
or an omission of fact is material only if the plaintiff relied on it—that is, the
plaintiff would not have acted as he or she did without the misrepresentation or
the omission of fact.” (Torres v. Adventist Health System/West (2022) 77
Cal.App.5th 500, 513 [292 Cal.Rptr.3d 557], original italics, internal citations
omitted.)
• “[M]ateriality usually is a question of fact. In certain cases, a court can
determine the factual misrepresentation or omission is so obviously unimportant
that the jury could not reasonably find that a reasonable person would have been
influence (sic) by it.” (Gutierrez, supra, 19 Cal.App.5th at p. 1262, internal
citations omitted.)
• “If a claim of misleading labeling runs counter to ordinary common sense or the
obvious nature of the product, the claim is fit for disposition at the demurrer
stage of the litigation.” (Brady, supra, 26 Cal.App.5th at p. 1165.)
• “In the CLRA context, a fact is deemed ‘material,’ and obligates an exclusively
knowledgeable defendant to disclose it, if a ‘ “reasonable [consumer]” ’ would
deem it important in determining how to act in the transaction at issue.”
(Collins, supra, 202 Cal.App.4th at p. 256.)
• “If the undisclosed assessment was material, an inference of reliance as to the
entire class would arise, subject to any rebuttal evidence [defendant] might
offer.” (Massachusetts Mutual Life Ins. Co., supra, 97 Cal.App.4th at p. 1295.)
• “[U]nless the advertisement targets a particular disadvantaged or vulnerable
group, it is judged by the effect it would have on a reasonable consumer.”
(Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351,
1360 [8 Cal.Rptr.3d 22].)
• “In California . . . product mislabeling claims are generally evaluated using a
‘reasonable consumer’ standard, as distinct from an ‘unwary consumer’ or a
‘suspicious consumer’ standard.” (Brady, supra, 26 Cal.App.5th at p. 1174.)
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CACI No. 4700
• “Not every omission or nondisclosure of fact is actionable. Consequently, we
must adopt a test identifying which omissions or nondisclosures fall within the
scope of the CLRA. Stating that test in general terms, we conclude an omission
is actionable under the CLRA if the omitted fact is (1) ‘contrary to a [material]
representation actually made by the defendant’ or (2) is ‘a fact the defendant was
obliged to disclose.’ ” (Gutierrez, supra, 19 Cal.App.5th at p. 1258.)
• “[T]here is no independent duty to disclose [safety] concerns. Rather, a duty to
disclose material safety concerns ‘can be actionable in four situations: (1) when
the defendant is in a fiduciary relationship with the plaintiff; (2) when the
defendant had exclusive knowledge of material facts not known to the plaintiff;
(3) when the defendant actively conceals a material fact from the plaintiff; or (4)
when the defendant makes partial representations but also suppresses some
material fact.’ ” (Gutierrez, supra, 19 Cal.App.5th at p. 1260.)
• “Under the CLRA, even if representations and advertisements are true, they may
still be deceptive because ‘ “[a] perfectly true statement couched in such a
manner that it is likely to mislead or deceive the consumer, such as by failure to
disclose other relevant information, is actionable.” [Citation.]’ ” (Jones, supra,
237 Cal.App.4th Supp. at p. 11.)
• “Defendants next allege that plaintiffs cannot sue them for violating the CLRA
because their debt collection efforts do not involve ‘goods or services.’ The
CLRA prohibits ‘unfair methods of competition and unfair or deceptive acts or
practices.’ This includes the inaccurate ‘represent[ation] that a transaction confers
or involves rights, remedies, or obligations which it does not have or involve
. . . .’ However, this proscription only applies with respect to ‘transaction[s]
intended to result or which result[] in the sale or lease of goods or services to
[a] consumer . . . .’ The CLRA defines ‘goods’ as ‘tangible chattels bought or
leased for use primarily for personal, family, or household purposes’, and
‘services’ as ‘work, labor, and services for other than a commercial or business
use, including services furnished in connection with the sale or repair of
goods.’ ” (Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29,
39−40 [185 Cal.Rptr.3d 84], internal citations omitted [mortgage loan is neither
a good nor a service].)
• “[A] ‘reasonable correction offer prevent[s] [the plaintiff] from maintaining a
cause of action for damages under the CLRA, but [does] not prevent [the
plaintiff] from pursuing remedies based on other statutory violations or common
law causes of action based on conduct under those laws.’ ” (Valdez, supra, 33
Cal.App.5th at p. 612.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Sales, § 298 et seq.
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch.1 4(II)-B, Elements of Claim, ¶ 14:315 et seq. (The Rutter Group)
Cabraser, California Class Actions and Coordinated Proceedings, Ch. 4, California’s
Consumer Legal Remedies Act, § 4.01 et seq. (Matthew Bender)
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CACI No. 4700
44 California Forms of Pleading and Practice, Ch. 504, Sales: Consumers Legal
Remedies Act, § 504.12 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 1,
Determining the Applicable Law, 1.33
122