Escolar Documentos
Profissional Documentos
Cultura Documentos
As approved at the
Judicial Council’s Rules and Projects Committee July 2018
Meeting
and Judicial Council November 2018 Meeting
1
Judicial Council of California
Series 100–2500
ISSN: 1549-7100
ISBN: 978-1-5221-5574-4 (print)
© 2018 by the Judicial Council of California. All rights reserved. No copyright is claimed by the Judicial Council of
California to the Table of Contents, Table of Statutes, Table of Cases, or Index.
© 2018, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, User’s Guide,
Life Expectancy Tables, or Disposition Table.
CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2019 edition)
Cite these instructions: “CACI No. _________.”
Cite these verdict forms: “CACI No. VF-_________.”
Editorial Office
230 Park Ave., 7th Floor, New York, NY 10169 (800) 543-6862
www.lexisnexis.com
(2018–Pub.1283)
November 2018
Hon. Martin J. Tangeman
Court of Appeal, Second District
Chair, Advisory Committee on Civil Jury Instructions
____________________________________________________________________________
iii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Table of New, Revised, Renumbered,
and Revoked CACI
November 2018
This 2019 Edition of CACI includes all of the new, revised, revoked, and renumbered
California Civil Jury Instructions approved by the Judicial Council’s Rules and Projects
Committee at its July 2018 Meeting and the Judicial Council at its November 2018 meeting.
EVIDENCE
206. Evidence Admitted for Limited Purpose (revised)
216. Exercise of Right Not to Incriminate Oneself (Evid. Code, § 913) (sources and authority)
219. Expert Witness Testimony (sources and authority)
220. Experts—Questions Containing Assumed Facts (sources and authority)
NEGLIGENCE
426. Negligent Hiring, Supervision, or Retention of Employee (sources and authority)
430. Causation: Substantial Factor (sources and authority)
432. Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause (sources and
authority)
435. Causation for Asbestos-Related Cancer Claims (revised)
440. Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure─Essential Factual
Elements (sources and authority)
450C. Negligent Undertaking (revised)
454. Affirmative Defense—Statute of Limitations (sources and authority)
455. Statute of Limitations—Delayed Discovery (sources and authority)
457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding (sources and authority)
PROFESSIONAL NEGLIGENCE
610. Affirmative Defense—Statute of Limitations—Attorney Malpractice—One-Year Limit (Code Civ.
Proc., § 340.6) (sources and authority)
611. Affirmative Defense—Statute of Limitations—Attorney Malpractice—Four-Year Limit (Code Civ.
Proc., § 340.6) (sources and authority)
PREMISES LIABILITY
1006. Landlord’s Duty (sources and authority)
1009B. Liability to Employees of Independent Contractors for Unsafe Conditions—Retained Control
(sources and authority)
PRODUCTS LIABILITY
v
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Table of New, Revised, Renumbered, and Revoked CACI
1204. Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual Elements—Shifting
Burden of Proof (sources and authority)
1208. Component Parts Rule (new)
MALICIOUS PROSECUTION
1501. Wrongful Use of Civil Proceedings (sources and authority)
DEFAMATION
1730. Slander of Title—Essential Factual Elements (revised)
RIGHT OF PRIVACY
1802. False Light (revised)
1805. Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment (Comedy
III) (sources and authority)
1806. Affirmative Defense to Invasion of Privacy—First Amendment Balancing Test─Public Interest
(sources and authority)
FRAUD OR DECEIT
1902. False Promise (sources and authority)
TRESPASS
2021. Private Nuisance—Essential Factual Elements (sources and authority)
2023. Failure to Abate Artificial Condition on Land Creating Nuisance (new)
ECONOMIC INTERFERENCE
2201. Intentional Interference With Contractual Relations—Essential Factual Elements (sources and
authority)
2202. Intentional Interference With Prospective Economic Relations—Essential Factual Elements
(sources and authority)
2204. Negligent Interference With Prospective Economic Relations (sources and authority)
INSURANCE LITIGATION
2361. Negligent Failure to Obtain Insurance Coverage—Essential Factual Elements (sources and
authority)
WRONGFUL TERMINATION
2400. Breach of Employment Contract—Unspecified Term—“At-Will” Presumption (revised)
2401. Breach of Employment Contract—Unspecified Term—Actual or Constructive
Discharge—Essential Factual Elements (revised)
2402. Breach of Employment Contract—Unspecified Term—Constructive Discharge—Essential Factual
Elements (revoked)
2404. Breach of Employment Contract—Unspecified Term—“Good Cause” Defined (revised)
2407. Affirmative Defense—Employee’s Duty to Mitigate Damages (renumbered)
2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements (revised)
2431. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate Public Policy
(sources and authority)
2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure Intolerable
vi
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Table of New, Revised, Renumbered, and Revoked CACI
Conditions That Violate Public Policy (sources and authority)
2433. Wrongful Discharge in Violation of Public Policy—Damages (renumbered)
CIVIL RIGHTS
3000. Violation of Federal Civil Rights—In General—Essential Factual Elements (42 U.S.C. § 1983)
(sources and authority)
3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983) (sources and authority)
3005. Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983) (sources and authority)
3020. Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements (42
U.S.C. § 1983) (sources and authority)
3023. Unreasonable Search—Search Without a Warrant—Essential Factual Elements (42 U.S.C. § 1983)
(sources and authority)
3025. Affirmative Defense—Consent to Search (sources and authority)
vii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Table of New, Revised, Renumbered, and Revoked CACI
3026. Affirmative Defense—Exigent Circumstances (sources and authority)
3027. Affirmative Defense─Emergency (sources and authority)
3041. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Medical Care (42 U.S.C.
§ 1983) (sources and authority)
3042. Violation of Prisoner’s Federal Civil Rights—Eighth Amendment—Excessive Force (42 U.S.C.
§ 1983) (sources and authority)
3051. Unlawful Removal of Child From Parental Custody Without a Warrant—Essential Factual
Elements (42 U.S.C. § 1983) (sources and authority)
3052. Use of Fabricated Evidence—Essential Factual Elements (42 U.S.C. § 1983) (sources and
authority)
3060. Unruh Civil Rights Act—Essential Factual Elements (Civ. Code, §§ 51, 52) (sources and
authority)
3062. Gender Price Discrimination—Essential Factual Elements (Civ. Code, § 51.6) (revised)
3066. Bane Act—Essential Factual Elements (Civ. Code, § 52.1) (revised)
CONSPIRACY
3600. Conspiracy—Essential Factual Elements (sources and authority)
3610. Aiding and Abetting Tort—Essential Factual Elements (sources and authority)
VICARIOUS LIABILITY
3704. Existence of “Employee” Status Disputed (revised)
3711. Partnerships (sources and authority)
DAMAGES
3903A. Medical Expenses—Past and Future (Economic Damage) (sources and authority)
3903J. Damage to Personal Property (Economic Damage) (revised)
3921. Wrongful Death (Death of an Adult) (sources and authority)
3963. No Deduction for Workers’ Compensation Benefits Paid (renumbered)
LANTERMAN-PETRIS-SHORT ACT
4000. Conservatorship—Essential Factual Elements (sources and authority)
4004. Issues Not to Be Considered (sources and authority)
viii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Table of New, Revised, Renumbered, and Revoked CACI
CONSTRUCTION LAW
4510. Breach of Implied Covenant to Perform Work in a Good and Competent Manner—Essential
Factual Elements (sources and authority)
4550. Affirmative Defense—Statute of Limitations—Patent Construction Defect (Code Civ. Proc.,
§ 337.1) (revised)
4551. Affirmative Defense—Statute of Limitations—Latent Construction Defect (Code Civ. Proc.,
§ 337.15) (revised)
ix
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Table of Renumbered and Revoked
Instructions
214 Revoked December 2012
361 Revoked December 2013
408 Renumbered to 470 May 2017
409 Renumbered to 471 May 2017
410 Renumbered to 428 and replaced by new 410 December 2013
410 Renumbered to 472 410 May 2017
450 Revoked June 2010; replaced by 450A, 450B December 2010
450A Derived from 450 December 2010
450B Derived from 450 December 2010
470 Renumbered from 408 May 2017
471 Renumbered from 409 May 2017
472 Renumbered from 410 May 2017
VF-405 Renumbered to VF-411 December 2015
VF-411 Renumbered from VF-405 December 2015
503 Replaced by 503A, 503B April 2007
503A Derived from 503 April 2007
503B Derived from 503 April 2007
530 Replaced by 530A, 530B April 2007
530A Derived from 530 April 2007
530B Derived from 530 April 2007
605 Renumbered to 4106 December 2007
802 Revoked February 2007
1009 Replaced by 1009A, 1009B February 2007
1009A Derived from 1009 February 2007
1009B Derived from 1009 February 2007
1009C Revoked December 2011
1009D Derived from 1009B April 2009
1123 Renumbered to 1124 December 2014
1124 Renumbered from 1123 December 2014
1207 Replaced by 1207A, 1207B April 2009
1207A Derived from 1207 April 2009
1207B Derived from 1207 April 2009
1240 Revoked June 2010; restored December 2010
VF-1202 Revoked December 2014
1503 Revoked October 2008; replaced by former 1506 December 2013
1504 Revoked October 2008
1505 Renumbered to 1510 June 2013
1506 Renumbered to 1503 June 2013
1709 Renumbered from 1722 November 2017
xi
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Derived, Renumbered, Replaced, Revoked CACI
1722 Renumbered to 1709 November 2017
1722 Renumbered from 1724 November 2017
1724 Renumbered to new 1722 November 2017
1804 Replaced by 1804A, 1804B April 2008
1804A Derived from 1804 April 2008
1804B Derived from 1804 April 2008
1806 Revoked December 2007
1808 Revoked June 2015
VF-1805 Revoked December 2007
VF-1806 Revoked December 2007
1905 Revoked December 2013
2203 Revoked December 2013
VF-2302 Revoked April 2008
2402 Revoked November 2018
2407 Renumbered to 3963 November 2018
2433 Renumbered to 3903P November 2018
2440 Revoked June 2013; restored December 2013; renumbered to 4600 June 2015
2442 Renumbered to 4601 June 2015
2443 Renumbered to 4602 June 2015
2521 Replaced by 2521A, 2521B, 2521C December 2007
2521A Derived from 2521 December 2007
2521B Derived from 2521 December 2007
2521C Derived from 2521 December 2007
2522 Replaced by 2522A, 2522B, 2522C December 2007
2522A Derived from 2522 December 2007
2522B Derived from 2522 December 2007
2522C Derived from 2522 December 2007
2543 Revoked June 2013; restored December 2013
2561 Revoked December 2012; restored June 2013
VF-2506 Replaced by VF-2506A, VF-2506B, VF-2506C December 2007
VF-2506A Derived from VF-2506 December 2007
VF-2506B Derived from VF-2506 December 2007
VF-2506C Derived from VF-2506 December 2007
VF-2507 Replaced by VF-2507A, VF-2507B, VF-2507C December 2007
VF-2507A Derived from VF-2507 December 2007
VF-2507B Derived from VF-2507 December 2007
VF-2507C Derived from VF-2507 December 2007
2730 Revoked June 2014; restored December 2014; renumbered to 4603 June 2015
2731 Renumbered to 4604 June 2015
3001 Renumbered to 3020 and replaced by former 3007 December 2012
3002 Renumbered to 3022 and replaced by former 3008 December 2012
3003 Renumbered to 3023 and replaced by former 3009 December 2012
3004 Renumbered to 3024 and replaced by former 3010 December 2012
3005 Renumbered to 3025 and replaced by former 3017 December 2012
3006 Renumbered to 3026 December 2012
xii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Derived, Renumbered, Replaced, Revoked CACI
3007 Renumbered to 3001 December 2012
3008 Renumbered to 3002 December 2012
3009 Renumbered to 3003 December 2012
3010 Renumbered to 3013 and replaced by new 3010 December 2010; renumbered
to 3004 December 2012
3011 Renumbered to 3040 December 2012
3012 Renumbered to 3041 December 2012
3013 Renumbered to 3017 and replaced by new 3013 December 2010; renumbered
to 3042 December 2012
3014 Renumbered to 3021 December 2012
3015 Revoked December 2012
3016 Renumbered to 3050 December 2012
3017 Renumbered to 3005 December 2012
3020 Renumbered to 3060 and replaced by former 3001 December 2012
3021 Renumbered to 3061 and replaced by former 3014 December 2012
3022 Renumbered to 3062 and replaced by former 3002 December 2012
3023 Replaced by 3023A, 3023B December 2009; replaced by former 3003 De-
cember 2012
3023A Derived from 3023 December 2009; renumbered to 3063 December 2012
3023B Derived from 3023 December 2009; renumbered to 3064 December 2012
3024 Renumbered to 3065 and replaced by former 3004 December 2012
3025 Renumbered to 3066 and replaced by former 3005 December 2012
3026 Renumbered to 3067 and replaced by former 3006 December 2012
3027 Renumbered to 3068 December 2012; replaced by new 3027 December 2013
3028 Renumbered to 3069 December 2012
VF-3001 Renumbered to VF-3010 and replaced by former VF-3005 December 2012
VF-3002 Renumbered to VF-3011 and replaced by former VF-3006 December 2012
VF-3003 Renumbered to VF-3012 December 2012
VF-3004 Renumbered to VF-3013 December 2012
VF-3005 Renumbered to VF-3001 December 2012
VF-3006 Renumbered to VF-3002 December 2012
VF-3007 Renumbered to VF-3020 December 2012
VF-3008 Renumbered to VF-3021 December 2012
VF-3009 Renumbered to VF-3022 December 2012
VF-3010 Renumbered to VF-3030 and replaced by former VF-3001 December 2012
VF-3011 Renumbered to VF-3031 and replaced by former VF-3002 December 2012
VF-3012 Renumbered to VF-3032 and replaced by former VF-3003 December 2012
VF-3013 Renumbered to VF-3033 and replaced by former VF-3004 December 2012
VF-3014 Renumbered to VF-3034 December 2012
VF-3015 Renumbered to VF-3035 December 2012
3102 Replaced by 3102A, 3102B October 2008
3102A Derived from 3102 October 2008
3102B Derived from 3102 October 2008
3105 Revoked October 2008
3108 Revoked October 2008
xiii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Derived, Renumbered, Replaced, Revoked CACI
3111 Revoked October 2008
3213 Renumbered to 3222 June 2012
3230 Renumbered to 3206 and replaced by new 3230 June 2012
3509 Renumbered to 3509A May 2017
3509A Renumbered from 3509 May 2017
3511 Renumbered to 3511A May 2017
3511A Renumbered from 3511 May 2017
3724 Renumbered from 3726 November 2017
3724 Renumbered to new 3726 November 2017
3726 Renumbered from 3724 November 2017
3726 Renumbered to new 3724 November 2017
3904 Renumbered to 3904A December 2010
3963 Renumbered to 3965 November 2018
4010 Revoked July 2018
4106 Renumbered to 4120 and replaced by former 605 December 2007
4606 Revoked November 2017
4600 Renumbered from 2440 June 2015
4601 Renumbered from 2442 June 2015
4602 Renumbered from 2443 June 2015
4603 Renumbered from 2730 June 2015
4604 Renumbered from 2731 June 2015
xiv
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Judicial Council Advisory Committee on Civil Jury Instructions
Committee Members
HON. MARY ARAND MR. MICHAEL A. KELLY
HON. SUZANNE R. BOLANOS HON. JAMES T. LATTING
MR. NICHOLAS P. CONNON HON. MARLA MILLER
HON. ROBERT P. DAHLQUIST MS. MELINDA PILLING
HON. ELENA J. DUARTE MR. JULIAN W. POON
HON. JANET M. FRANGIE MR. TODD M. SCHNEIDER
HON. DONALD R. FRANSON, JR. MR. RICHARD L. SEABOLT
MR. ROBERT A. GOODIN MS. CHRISTINE SPAGNOLI
HON. JUDY H. HERSHER MS. MARY-CHRISTINE SUNGAILA
HON. RAYMOND J. IKOLA HON. JOHN SHEPARD WILEY JR.
xv
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Judicial Council of California
Chair
Hon. Tani G. Cantil-Sakauye
Supreme Court
Hon. Ming W. Chin
Courts of Appeal
Hon. Harry E. Hull, Jr. Hon. Douglas P. Miller
Hon. James M. Humes
Trial Courts
Hon. Maria O. Anderson Hon. Samuel K. Feng
Hon. C. Todd Botke Hon. Harold W. Hopp
Hon. Stacy Boulware Eurie Hon. Dalila Carrol Lyons
Hon. Kevin C. Brazile Hon. Gary Nadler
Hon. Kyle S. Brodie Hon. David M. Rubin
Legislature
Hon. Richard Bloom Hon. Hannah-Beth Jackson
State Bar
Ms. Rachel W. Hill Ms. Donna D’Angelo Melby
Ms. Audra Ibarra Ms. Gretchen Nelson
Mr. Patrick M. Kelly
Advisory Members
Mr. Jake Chatters Hon. Stuart M. Rice
Ms. Kimberly Flener Mr. Michael M. Roddy
Hon. Scott M. Gordon Hon. Marsha G. Slough
Hon. Patricia M. Lucas Hon. Kenneth K. So
Hon. Shama Kakim Mesiwala Ms. Andrea K. Wallin-Rohmann
Secretary
Martin Hoshino
The Judicial Council is the policymaking body of the California courts. Under the leadership of the Chief
Justice and in accordance with the California Constitution, the council is responsible for ensuring the
consistent, independent, impartial, and accessible administration of justice.
xvii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Preface
These instructions represent the work of a task force on jury instructions appointed by Chief
Justice Ronald M. George in 1997. The task force’s charge was to write instructions that are
legally accurate and understandable to the average juror. The six-year effort responded to a
perceived need for instructions written in plain English and the specific recommendation of
the Blue Ribbon Commission on Jury System Improvement.
Jurors perform an invaluable service in our democracy, making important decisions that
affect many aspects of our society. The Judicial Council instructions attempt to clarify the
legal principles jurors must consider in reaching their decisions. The instructions were
prepared by a statewide, broad-based task force consisting of court of appeal justices, trial
judges, attorneys, academics, and lay people. They are approved by the Judicial Council as the
state’s official jury instructions under the California Rules of Court (see now Cal. Rules of
Court, Rule 2.1050(a)). The Rules of Court provide that the use of these instructions is
strongly encouraged (see now Cal. Rules of Court, Rule 2.1050(e)).
These instructions were prepared with a minimum of three steps: staff attorney drafts,
subcommittee refinement, and full task force consideration. Initial drafts of the instructions
were prepared by staff attorneys in the former Administrative Office of the Courts (now Legal
Services Office) in San Francisco, primarily Lyn Hinegardner. Lawyers throughout the state
provided subject-matter expertise and, in some cases, sets of instructions from which the task
force began its drafting. These instructions were submitted to the legal community for
comment and, in responding, hundreds of attorneys and judges provided valuable assistance.
Several organizations, most particularly State Bar sections, provided invaluable input. A list of
people and organizations who contributed to this effort follows; we apologize to those who
have been omitted through oversight.
We are grateful to the publisher of this work. Representatives of LexisNexis Matthew
Bender worked closely with us to prepare the jury instructions for publication. We appreciate
their efficiency and courtesy.
We would also like to express our appreciation to our predecessor. The people of California
and the legal community have been well served for over 60 years by BAJI, California Jury
Instructions, Civil, Book of Approved Jury Instructions, written by a committee of the Superior
Court of California, County of Los Angeles. That we have taken a very different approach to
drafting of instructions does not detract from the historic importance of work done by the
BAJI committee.
We believe that these instructions go a long way toward achieving the goal of a plain-
English explanation of the law. These instructions, like the law, will be constantly changing.
Change will come not only through appellate decisions and legislation but also through the
observations and comments of the legal community. The Judicial Council Advisory
Committee on Civil Jury Instructions, which has the responsibility of maintaining these
instructions, welcomes your comments and suggestions for improvement.
September 2003
James D. Ward, Former Associate Justice
Court of Appeal, Fourth Appellate District, Division Two
xix
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Preface
Vice-Chair, Task Force on Jury Instructions
Chair, Civil Instruction Section
xx
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Judicial Council Task Force on Jury Instructions
Civil Instructions Subcommittee
xxi
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Table of Contents
Volume 1
USER GUIDE
xxiii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
SERIES 2000 TRESPASS
xxiv
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 2
xxv
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
SERIES 4700 CONSUMERS LEGAL REMEDIES ACT
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
xxvi
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 1 Table of Contents
USER GUIDE
xxx
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 1 Table of Contents
422. Providing Alcoholic Beverages to Obviously Intoxicated Minors (Bus. & Prof. Code,
§ 25602.1)
423. Public Entity Liability for Failure to Perform Mandatory Duty
424. Negligence Not Contested—Essential Factual Elements
425. “Gross Negligence” Explained
426. Negligent Hiring, Supervision, or Retention of Employee
427. Furnishing Alcoholic Beverages to Minors (Civ. Code, § 1714(d))
428. Parental Liability (Nonstatutory)
429. Negligent Sexual Transmission of Disease
430. Causation: Substantial Factor
431. Causation: Multiple Causes
432. Affirmative Defense—Causation: Third-Party Conduct as Superseding Cause
433. Affirmative Defense—Causation: Intentional Tort/Criminal Act as Superseding Cause
434. Alternative Causation
435. Causation for Asbestos-Related Cancer Claims
436–439. Reserved for Future Use
440. Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure—Essential
Factual Elements
441–449. Reserved for Future Use
450A. Good Samaritan—Nonemergency
450B. Good Samaritan—Scene of Emergency
450C. Negligent Undertaking
451. Affirmative Defense—Contractual Assumption of Risk
452. Sudden Emergency
453. Injury Incurred in Course of Rescue
454. Affirmative Defense—Statute of Limitations
455. Statute of Limitations—Delayed Discovery
456. Defendant Estopped From Asserting Statute of Limitations Defense
457. Statute of Limitations—Equitable Tolling—Other Prior Proceeding
458–459. Reserved for Future Use
460. Strict Liability for Ultrahazardous Activities—Essential Factual Elements
461. Strict Liability for Injury Caused by Wild Animal—Essential Factual Elements
462. Strict Liability for Injury Caused by Domestic Animal With Dangerous
Propensities—Essential Factual Elements
463. Dog Bite Statute (Civ. Code, § 3342)—Essential Factual Elements
464–469. Reserved for Future Use
xxxi
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 1 Table of Contents
470. Primary Assumption of Risk—Exception to Nonliability—Coparticipant in Sport or
Other Recreational Activity
471. Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or
Coaches
472. Primary Assumption of Risk—Exception to Nonliability—Facilities Owners and
Operators and Event Sponsors
473. Primary Assumption of Risk—Exception to Nonliability—Occupation Involving
Inherent Risk
474–499. Reserved for Future Use
VF-400. Negligence—Single Defendant
VF-401. Negligence—Single Defendant—Plaintiff’s Negligence at Issue—Fault of Others
Not at Issue
VF-402. Negligence—Fault of Plaintiff and Others at Issue
VF-403. Primary Assumption of Risk—Liability of Coparticipant
VF-404. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches
VF-405. Primary Assumption of Risk—Liability of Facilities Owners and Operators and
Event Sponsors
VF-406. Negligence—Providing Alcoholic Beverages to Obviously Intoxicated Minor
VF-407. Strict Liability—Ultrahazardous Activities
VF-408. Strict Liability for Domestic Animal With Dangerous Propensities
VF-409. Dog Bite Statute (Civ. Code, § 3342)
VF-410. Statute of Limitations—Delayed Discovery—Reasonable Investigation Would Not
Have Disclosed Pertinent Facts
VF-411. Parental Liability (Nonstatutory)
VF-412–VF-499. Reserved for Future Use
xxxviii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 1 Table of Contents
SERIES 1400 FALSE IMPRISONMENT
1400. No Arrest Involved—Essential Factual Elements
1401. False Arrest Without Warrant by Peace Officer—Essential Factual Elements
1402. False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause
to Arrest
1403. False Arrest Without Warrant by Private Citizen—Essential Factual Elements
1404. False Arrest Without Warrant—Affirmative Defense—Private Citizen—Probable
Cause to Arrest
1405. False Arrest With Warrant—Essential Factual Elements
1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
1407. Unnecessary Delay in Processing/Releasing—Essential Factual Elements
1408. Affirmative Defense—Police Officer’s Lawful Authority to Detain
1409. Common Law Right to Detain for Investigation
1410–1499. Reserved for Future Use
VF-1400. False Imprisonment—No Arrest Involved
VF-1401. False Imprisonment—No Arrest Involved—Affirmative Defense—Right to Detain
for Investigation
VF-1402. False Arrest Without Warrant
VF-1403. False Arrest Without Warrant by Peace Officer—Affirmative Defense—Probable
Cause to Arrest
VF-1404. False Arrest Without Warrant by Private Citizen—Affirmative Defense—Probable
Cause to Arrest
VF-1405. False Arrest With Warrant
VF-1406. False Arrest With Warrant—Peace Officer—Affirmative Defense—“Good-Faith”
Exception
VF-1407. False Imprisonment—Unnecessary Delay in Processing/Releasing
VF-1408–VF-1499. Reserved for Future Use
xl
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 1 Table of Contents
VF-1603. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim
VF-1604. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Bystander
VF-1605. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS
VF-1606. Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent
Conduct
VF-1607–VF-1699. Reserved for Future Use
xlix
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 2 Table of Contents
SERIES 2600 CALIFORNIA FAMILY RIGHTS ACT
2600. Violation of CFRA Rights—Essential Factual Elements
2601. Eligibility
2602. Reasonable Notice of CFRA Leave
2603. “Comparable Job” Explained
2604–2609. Reserved for Future Use
2610. Affirmative Defense—No Certification From Health-Care Provider
2611. Affirmative Defense—Fitness for Duty Statement
2612. Affirmative Defense—Employment Would Have Ceased
2613. Affirmative Defense—Key Employee
2614–2619. Reserved for Future Use
2620. CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(l))
2621–2629. Reserved for Future Use
2630. Violation of New Parent Leave Act—Essential Factual Elements (Gov. Code,
§ 12945.6)
2631–2699. Reserved for Future Use
VF-2600. Violation of CFRA Rights
VF-2601. Violation of CFRA Rights—Affirmative Defense—Employment Would Have
Ceased
VF-2602. CFRA Rights Retaliation
VF-2603–VF-2699. Reserved for Future Use
li
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 2 Table of Contents
2711. Preventing Subsequent Employment by Misrepresentation—Essential Factual
Elements (Lab. Code, § 1050)
2712–2719. Reserved for Future Use
2720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption
2721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption
2722–2731. Reserved for Future Use
2732. Retaliatory Unfair Immigration-Related Practice—Essential Factual Elements (Lab.
Code, § 1019)
2733–2739. Reserved for Future Use
2740. Violation of Equal Pay Act—Essential Factual Elements (Lab. Code, § 1197.5)
2741. Affirmative Defense—Different Pay Justified
2742. Bona Fide Factor Other Than Sex, Race, or Ethnicity
2743. Equal Pay Act—Retaliation—Essential Factual Elements (Lab. Code, § 1197.5(k))
2744–2799. Reserved for Future Use
VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218)
VF-2701. Nonpayment of Minimum Wage (Lab. Code, § 1194)
VF-2702. Nonpayment of Overtime Compensation (Lab. Code, § 1194)
VF-2703. Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)
VF-2704. Solicitation of Employee by Misrepresentation (Lab. Code, § 970)
VF-2705. Preventing Subsequent Employment by Misrepresentation (Lab. Code, § 1050)
VF-2706–VF-2799. Reserved for Future Use
lxv
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Volume 2 Table of Contents
VF-4200. Actual Intent to Hinder, Delay, or Defraud Creditor—Affirmative Defense—Good
Faith
VF-4201. Constructive Fraudulent Transfer—No Reasonably Equivalent Value Received
VF-4202. Constructive Fraudulent Transfer—Insolvency
VF-4203–VF-4299. Reserved for Future Use
lxx
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Related Publications from LexisNexis
Matthew Bender
Litigation
California Forms of Pleading and Practice
California Points and Authorities
California Forms of Jury Instruction
LexisNexis Automated Judicial Council of California Civil Jury Instructions (CACI)
Judicial Council of California Criminal Jury Instructions (CALCRIM) (LexisNexis Matthew
Bender, Official Publisher)
LexisNexis Automated Judicial Council of California Criminal Jury Instructions (CALCRIM)
Matthew Bender Practice Guide: California Civil Discovery
Matthew Bender Practice Guide: California Contract Litigation
Matthew Bender Practice Guide: California Insurance Litigation
Matthew Bender Practice Guide: California E-Discovery and Evidence
Matthew Bender Practice Guide: California Pretrial Civil Procedure
Matthew Bender Practice Guide: California Trial and Post-Trial Civil Procedure
Matthew Bender Practice Guide: California Debt Collection and Enforcement of Judgments
Matthew Bender Practice Guide: California Civil Appeals and Writs
Matthew Bender Practice Guide: California Landlord-Tenant Litigation
Matthew Bender Practice Guide: California Trust Litigation
Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California
Johnson, California Trial Guide
Cotchett, California Courtroom Evidence
Imwinkelried & Leach, California Evidentiary Foundations
Cabraser, California Class Actions and Coordinate Proceedings, 2d ed.
DeMeo, California Deposition and Discovery Practice
Hogan & Weber, California Civil Discovery
Johns, California Damages: Law & Proof, 5th ed.
California Judicial Council Forms on HotDocs
Moore’s Federal Practice, 3d ed.
Codes
Deering’s California Codes Annotated
Matthew Bender and Deering’s Desktop Codes
Citations
lxxi
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Related Publications from LexisNexis Matthew Bender
Shepard’s Citations
Specialized Publications
Antitrust Laws & Trade Regulation
New Appleman on Insurance Law Library Edition
Wilcox, California Employment Law
California Employment Law Reporter
Selmi & Manaster, California Environmental Law and Land Use Practice
California Insurance Law and Practice
California Products Liability Actions
California Real Estate Law and Practice
California Legal Forms—Transaction Guide
Levy, Golden & Sacks, California Torts
California Uninsured Motorist Law
Hanna, California Law of Employee Injuries and Workers’ Compensation
Civil Rights Actions
Long, The Law of Liability Insurance
Nichols on Eminent Domain
For a complete listing of LexisNexis Matthew Bender products, visit the online bookstore at
<http://www.lexisnexis.com/store/us/>.
lxxii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Publisher’s Editorial Staff
JENIFER S. SWIRNOFF, J.D.
Editorial Director
ANDREW D. WATRY, J.D.
Legal Editor
CLAUDIA GUREVICH
Director, Content Operations
AMY NG
Content Operations Analyst
PAT HEALY
Index Editor
lxxiii
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use
Guide for Using Judicial Council of
California Civil Jury Instructions
Secondary Sources are also provided for treatises and practice guides from a variety
of legal publishers.
Instructions for the Common Case: These instructions were drafted for the common
type of case and can be used as drafted in most cases. When unique or complex
circumstances prevail, users will have to adapt the instructions to the particular case.
Multiple Parties: Because jurors more easily understand instructions that refer to
parties by name rather than by legal terms such as “plaintiff” and “defendant,” the
instructions provide for insertion of names. For simplicity of presentation, the
instructions use single party plaintiffs and defendants as examples. If a case involves
multiple parties or cross-complaints, the user will usually need to modify the parties
in the instructions. Rather than naming a number of parties in each place calling for
names, the user may consider putting the names of all applicable parties in the
beginning and thereafter identifying them as “plaintiffs,” “defendants,” “cross-
complaints,” etc. Different instructions often apply to different parties. The user should
only include the parties to whom each instruction applies.
Reference to “Harm” in Place of “Damage” or “Injury”: In many of the
instructions, the word harm is used in place of damage, injury or other similar words.
The drafters of the instructions felt that this word was clearer to jurors.
Substantial Factor: The instructions frequently use the term “substantial factor” to
state the element of causation, rather than referring to “cause” and then defining that
term in a separate instruction as a “substantial factor.” An instruction that defines
“substantial factor” is located in the Negligence series. The use of the instruction is not
intended to be limited to cases involving negligence.
Listing of Elements and Factors: For ease of understanding, elements of causes of
action or affirmative defenses are listed by numbers (e.g., 1, 2, 3) and factors to be
considered by jurors in their deliberations are listed by letters (e.g., a, b, c).
Uncontested Elements: Although some elements may be the subject of a stipulation
that the element has been proven, the instruction should set forth all of the elements
and indicate those that are deemed to have been proven by stipulation of the parties.
Omitting uncontested elements may leave the jury with an incomplete understanding
of the cause of action and the plaintiff’s full burden of proof. It is better to include all
the elements and then indicate the parties have agreed that one or more of them has
been established and need not be decided by the jury. One possible approach is as
follows:
To establish this claim, [plaintiff] must prove all of the following:
1. That [plaintiff] and [defendant] entered into a contract (which is not disputed
in this case);
2. That [plaintiff] did all, or substantially all, of the significant things that the
contract required it to do;
3. That all conditions required for [defendant]’s performance had occurred
(which is also not disputed in this case).
2
Irrelevant Factors: Factors are matters that the jury might consider in determining
whether a party’s burden of proof on the elements has been met. A list of possible
factors may include some that have no relevance to the case and on which no evidence
was presented. These irrelevant factors may safely be omitted from the instruction.
Burdens of Proof: The applicable burden of proof is included within each instruction
explaining a cause of action or affirmative defense. The drafters felt that placing the
burden of proof in that position provided a clearer explanation for the jurors.
Affirmative Defenses: For ease of understanding by users, all instructions explaining
affirmative defenses use the term “affirmative defense” in the title.
Titles and Definitions
Titles of Instructions: Titles to instructions are directed to lawyers and sometimes use
words and phrases not used in the instructions themselves. Since the title is not a part
of the instruction, the titles may be removed before presentation to the jury.
Definitions of Legal Terms: The instructions avoid separate definitions of legal terms
whenever possible. Instead, definitions have been incorporated into the language of the
instructions. In some instances (e.g., specific statutory definitions) it was not possible
to avoid providing a separate definition.
Evidence
Circumstantial Evidence: The words “indirect evidence” have been substituted for
the expression “circumstantial evidence.” In response to public comment on the
subject, however, the drafters added a sentence indicating that indirect evidence is
sometimes known as circumstantial evidence.
Preponderance of the Evidence: To simplify the instructions’ language, the drafters
avoided the phrase preponderance of the evidence and the verb preponderate. The
instructions substitute in place of that phrase reference to evidence that is “more likely
to be true than not true.”
Using Verdict Forms
Verdict Forms are Models: A large selection of special verdict forms accompanies
the instructions. Users of the forms must bear in mind that these are models only.
Rarely can they be used without modifications to fit the circumstances of a particular
case.
Purpose of Verdict Forms: The special verdict forms generally track the elements of
the applicable cause of action. Their purpose is to obtain the jury’s finding on the
elements defined in the instructions. “The special verdict must present the conclusions
of fact as established by the evidence, and not the evidence to prove them; and those
conclusions of fact must be so presented as that nothing shall remain to the court but
to draw from them conclusions of law.” (Code Civ. Proc., § 624; see Trujillo v. North
County Transit Dist. (1998) 63 Cal.App.4th 280, 285 [73 Cal.Rptr.2d 596].) Modifi-
cations made to the instructions in particular cases ordinarily will require correspond-
ing modifications to the special verdict form.
Multiple Parties: The verdict forms have been written to address one plaintiff against
one defendant. In nearly all cases involving multiple parties, the issues and the
3
evidence will be such that the jury could reach different results for different parties.
The liability of each defendant should always be evaluated individually, and the
damages to be awarded to each plaintiff must usually be determined separately.
Therefore, separate special verdicts should usually be prepared for each plaintiff with
regard to each defendant. In some cases, the facts may be sufficiently simple to include
multiple parties in the same verdict form, but if this is done, the transitional language
from one question to another must be modified to account for all the different
possibilities of yes and no answers for the various parties.
Multiple Causes of Action: The verdict forms are self-contained for a particular cause
of action. When multiple causes of action are being submitted to the jury, it may be
better to combine the verdict forms and eliminate duplication.
Modifications as Required by Circumstances: The verdict forms must be modified
as required by the circumstances. It is necessary to determine whether any lesser or
greater specificity is appropriate. The question in special verdict forms for plaintiff’s
damages provides an illustration. Consistent with the jury instructions, the question
asks the jury to determine separately the amounts of past and future economic loss, and
of past and future noneconomic loss. These four choices are included in brackets. In
some cases it may be unnecessary to distinguish between past and future losses. In
others there may be no claim for either economic or noneconomic damages. In some
cases the court may wish to eliminate the terms “economic loss” and “noneconomic
loss” from both the instructions and the verdict form. Without defining those terms, the
court may prefer simply to ask the jury to determine the appropriate amounts for the
various components of the losses without categorizing them for the jury as economic
or noneconomic. The court can fix liability as joint or several under Civil Code
sections 1431 and 1431.2, based on the verdicts. A more itemized breakdown of
damages may be appropriate if the court is concerned about the sufficiency of the
evidence supporting a particular component of damages. Appropriate special verdicts
are preferred when periodic payment schedules may be required by Code of Civil
Procedure section 667.7. (Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 148–150
[266 Cal.Rptr. 671].)
November 2018
Hon. Martin J. Tangeman
Chair, Judicial Council Advisory Committee on Civil Jury Instructions
You have now been sworn as jurors in this case. I want to impress on
you the seriousness and importance of serving on a jury. Trial by jury is
a fundamental right in California. The parties have a right to a jury
that is selected fairly, that comes to the case without bias, and that will
attempt to reach a verdict based on the evidence presented. Before we
begin, I need to explain how you must conduct yourselves during the
trial.
Do not allow anything that happens outside this courtroom to affect
your decision. During the trial do not talk about this case or the people
involved in it with anyone, including family and persons living in your
household, friends and co-workers, spiritual leaders, advisors, or
therapists. You may say you are on a jury and how long the trial may
take, but that is all. You must not even talk about the case with the
other jurors until after I tell you that it is time for you to decide the
case.
This prohibition is not limited to face-to-face conversations. It also
extends to all forms of electronic communications. Do not use any
electronic device or media, such as a cell phone or smart phone, PDA,
computer, the Internet, any Internet service, any text or instant-
messaging service, any Internet chat room, blog, or website, including
social networking websites or online diaries, to send or receive any
information to or from anyone about this case or your experience as a
juror until after you have been discharged from your jury duty.
During the trial you must not listen to anyone else talk about the case
or the people involved in the case. You must avoid any contact with the
parties, the lawyers, the witnesses, and anyone else who may have a
connection to the case. If anyone tries to talk to you about this case, tell
that person that you cannot discuss it because you are a juror. If he or
she keeps talking to you, simply walk away and report the incident to
the court [attendant/bailiff] as soon as you can.
After the trial is over and I have released you from jury duty, you may
discuss the case with anyone, but you are not required to do so.
During the trial, do not read, listen to, or watch any news reports about
this case. [I have no information that there will be news reports
concerning this case.] This prohibition extends to the use of the Internet
in any way, including reading any blog about the case or about anyone
involved with it. If you receive any information about this case from
any source outside of the courtroom, promptly report it to the court
[attendant/bailiff]. It is important that all jurors see and hear the same
evidence at the same time.
6
New September 2003; Revised April 2004, October 2004, February 2005, June
2005, December 2007, December 2009, December 2011, December 2012
Directions for Use
This instruction should be given at the outset of every case, even as early as when
the jury panel enters the courtroom (without the first sentence).
If the jury is allowed to separate, Code of Civil Procedure section 611 requires the
judge to admonish the jury that “it is their duty not to converse with, or suffer
themselves to be addressed by any other person, on any subject of the trial, and
7
that it is their duty not to form or express an opinion thereon until the case is
finally submitted to them.”
Sources and Authority
• Constitutional Right to Jury Trial. Article I, section 16 of the California
Constitution.
• Instructing the Jury. Code of Civil Procedure section 608.
• Jury as Trier of Fact. Evidence Code section 312.
• Admonishments to Jurors. Code of Civil Procedure section 611.
• Contempt of Court for Juror Misconduct. Code of Civil Procedure section
1209(a)(6).
• Under Code of Civil Procedure section 611, jurors may not “form or express an
opinion” prior to deliberations. (See also City of Pleasant Hill v. First Baptist
Church of Pleasant Hill (1969) 1 Cal.App.3d 384, 429 [82 Cal.Rptr. 1]. It is
misconduct for a juror to prejudge the case. (Deward v. Clough (1966) 245
Cal.App.2d 439, 443–444 [54 Cal.Rptr. 68].)
• Jurors must not undertake independent investigations of the facts in a case.
(Kritzer v. Citron (1950) 101 Cal.App.2d 33, 36 [224 P.2d 808]; Walter v.
Ayvazian (1933) 134 Cal.App. 360, 365 [25 P.2d 526].)
• Jurors are required to avoid discussions with parties, counsel, or witnesses.
(Wright v. Eastlick (1899) 125 Cal. 517, 520–521 [58 P. 87]; Garden Grove
School Dist. v. Hendler (1965) 63 Cal.2d 141, 144 [45 Cal.Rptr. 313, 403 P.2d
721].)
• It is misconduct for jurors to engage in experiments that produce new evidence.
(Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234
Cal.App.3d 1724, 1746 [286 Cal.Rptr. 435].)
• Unauthorized visits to the scene of matters involved in the case are improper.
(Anderson v. Pacific Gas & Electric Co. (1963) 218 Cal.App.2d 276, 280 [32
Cal.Rptr. 328].)
• It is improper for jurors to receive information from the news media about the
case. (Province v. Center for Women’s Health & Family Birth (1993) 20
Cal.App.4th 1673, 1679 [25 Cal.Rptr.2d 667], disapproved on other grounds in
Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 41 [32 Cal.Rptr.2d 200,
876 P.2d 999]; Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 408
[196 Cal.Rptr. 117].)
• Jurors must avoid bias: “ ‘The right to unbiased and unprejudiced jurors is an
inseparable and inalienable part of the right to trial by jury guaranteed by the
Constitution.’ ” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98,
110 [95 Cal.Rptr. 516, 485 P.2d 1132], internal citations omitted.) Evidence of
racial prejudice and bias on the part of jurors amounts to misconduct and may
constitute grounds for ordering a new trial. (Ibid.)
8
To assist you in your tasks as jurors, I will now explain how the trial
will proceed. I will begin by identifying the parties to the case. [Name of
plaintiff] filed this lawsuit. [He/She/It] is called a plaintiff. [He/She/It]
seeks damages [or other relief] from [name of defendant], who is called a
defendant.
[[Name of plaintiff] claims [insert description of the plaintiff’s claim(s)].
[Name of defendant] denies those claims. [[Name of defendant] also
contends that [insert description of the defendant’s affırmative defense(s)].]]
[[Name of cross-complainant] has also filed what is called a cross
complaint against [name of cross-defendant]. [Name of cross-complainant]
is the defendant, but also is called the cross-complainant. [Name of
cross-defendant] is called a cross-defendant.]
[In [his/her/its] cross-complaint, [name of cross-complainant] claims
[insert description of the cross-complainant’s claim(s)]. [Name of cross-
defendant] denies those claims. [[Name of cross-defendant] also contends
that [insert description of the cross-defendant’s affırmative defense(s) to the
cross-complaint].]]
First, each side may make an opening statement, but neither side is
required to do so. An opening statement is not evidence. It is simply an
outline to help you understand what that party expects the evidence will
show. Also, because it is often difficult to give you the evidence in the
order we would prefer, the opening statement allows you to keep an
overview of the case in mind during the presentation of the evidence.
Next, the jury will hear the evidence. [Name of plaintiff] will present
evidence first. When [name of plaintiff] is finished, [name of defendant]
will have an opportunity to present evidence. [Then [name of cross-
complainant] will present evidence. Finally, [name of cross-defendant] will
present evidence.]
Each witness will first be questioned by the side that asked the witness
to testify. This is called direct examination. Then the other side is
permitted to question the witness. This is called cross-examination.
Documents or objects referred to during the trial are called exhibits.
Exhibits are given a [number/letter] so that they may be clearly
identified. Exhibits are not evidence until I admit them into evidence.
During your deliberations, you will be able to look at all exhibits
admitted into evidence.
There are many rules that govern whether something will be admitted
into evidence. As one side presents evidence, the other side has the right
10
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.50 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 4.100 (Cal CJER
2010)
12
You have been given notebooks and may take notes during the trial. Do
not take the notebooks out of the courtroom or jury room at any time
during the trial. You may take your notes into the jury room during
deliberations.
You should use your notes only to remind yourself of what happened
during the trial. Do not let your note-taking interfere with your ability
to listen carefully to all the testimony and to watch the witnesses as they
testify. Nor should you allow your impression of a witness or other
evidence to be influenced by whether or not other jurors are taking
notes. Your independent recollection of the evidence should govern your
verdict, and you should not allow yourself to be influenced by the notes
of other jurors if those notes differ from what you remember.
[The court reporter is making a record of everything that is said. If
during deliberations you have a question about what the witness said,
you should ask that the court reporter’s records be read to you. You
must accept the court reporter’s record as accurate.]
At the end of the trial, your notes will be [collected and
destroyed/collected and retained by the court but not as a part of the
case record/ [specify other disposition]].
that another juror has taken notes; and that the notes are for the note taker’s
own personal use in refreshing his recollection of the evidence. The jury must
be reminded that should any discrepancy exist between their recollection of the
evidence and their notes, they should request that the record of the proceedings
be read back and that it is the transcript that must prevail over their notes.’ ”
(People v. Whitt (1984) 36 Cal.3d 724, 747 [205 Cal.Rptr. 810, 685 P.2d 1161],
internal citations and footnote omitted.)
• “In People v. Whitt, we recognized the risks inherent in juror note-taking and
observed that it is ‘the better practice’ for courts to give, sua sponte, a
cautionary instruction on note-taking. Although the ideal instruction would
advert specifically to all the dangers of note-taking, we found the less complete
instruction given in Whitt to be adequate: ‘Be careful as to the amount of notes
that you take. I’d rather that you observe the witness, observe the demeanor of
that witness, listen to how that person testifies rather than taking copious notes
. . . . [I]f you do not recall exactly as to what a witness might have said or you
disagree, for instance, during the deliberation [sic] as to what a witness may
have said, we can reread that transcript back . . . .’ ” (People v. Silbertson
(1985) 41 Cal.3d 296, 303 [221 Cal.Rptr. 152, 709 P.2d 1321], internal citations
and footnote omitted.)
Secondary Sources
Deskbook on the Management of Complex Civil Litigation, Ch. 2, Case
Management, § 2.81[5] (Matthew Bender)
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.32
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 4.97 (Cal CJER
2010)
14
[There are [number] plaintiffs in this trial. You should decide the case of
each plaintiff separately as if it were a separate lawsuit. Each plaintiff is
entitled to separate consideration of his or her own claim(s).]
[There are [number] defendants in this trial. You should decide the case
against each defendant separately as if it were a separate lawsuit. Each
defendant is entitled to separate consideration of his or her own
defenses.]
[Different aspects of this case involve different parties (plaintiffs and
defendants). Each instruction will identify the parties to whom it
applies. Pay particular attention to the parties named in each
instruction.]
[or]
[Unless I tell you otherwise, all instructions apply to each plaintiff and
defendant.]
16
You must not consider whether any of the parties in this case has
insurance. The presence or absence of insurance is totally irrelevant.
You must decide this case based only on the law and the evidence.
17
You must decide what the facts are in this case only from the evidence
you see or hear during the trial. Sworn testimony, documents, or
anything else may be admitted into evidence. You may not consider as
evidence anything that you see or hear when court is not in session,
even something done or said by one of the parties, attorneys, or
witnesses.
What the attorneys say during the trial is not evidence. In their opening
statements and closing arguments, the attorneys will talk to you about
the law and the evidence. What the lawyers say may help you
understand the law and the evidence, but their statements and
arguments are not evidence.
The attorneys’ questions are not evidence. Only the witnesses’ answers
are evidence. You should not think that something is true just because
an attorney’s question suggests that it is true. However, the attorneys
for both sides can agree that certain facts are true. This agreement is
called a “stipulation.” No other proof is needed and you must accept
those facts as true in this trial.
Each side has the right to object to evidence offered by the other side. If
I do not agree with the objection, I will say it is overruled. If I overrule
an objection, the witness will answer and you may consider the
evidence. If I agree with the objection, I will say it is sustained. If I
sustain an objection, you must ignore the question. If the witness did
not answer, you must not guess what he or she might have said or why I
sustained the objection. If the witness has already answered, you must
ignore the answer.
An attorney may make a motion to strike testimony that you have
heard. If I grant the motion, you must totally disregard that testimony.
You must treat it as though it did not exist.
New September 2003; Revised February 2005, December 2010, December 2012
Directions for Use
This instruction should be given as an introductory instruction.
Sources and Authority
• “Evidence” Defined. Evidence Code section 140.
• Jury to Decide Questions of Fact. Evidence Code section 312.
• Miscarriage of Justice. Evidence Code section 353.
• A stipulation in proper form is binding on the parties if it is within the authority
18
19
A witness is a person who has knowledge related to this case. You will
have to decide whether you believe each witness and how important
each witness’s testimony is to the case. You may believe all, part, or
none of a witness’s testimony.
In deciding whether to believe a witness’s testimony, you may consider,
among other factors, the following:
(a) How well did the witness see, hear, or otherwise sense what he
or she described in court?
(b) How well did the witness remember and describe what
happened?
(c) How did the witness look, act, and speak while testifying?
(d) Did the witness have any reason to say something that was not
true? For example, did the witness show any bias or prejudice or
have a personal relationship with any of the parties involved in
the case or have a personal stake in how this case is decided?
(e) What was the witness’s attitude toward this case or about giving
testimony?
Sometimes a witness may say something that is not consistent with
something else he or she said. Sometimes different witnesses will give
different versions of what happened. People often forget things or make
mistakes in what they remember. Also, two people may see the same
event but remember it differently. You may consider these differences,
but do not decide that testimony is untrue just because it differs from
other testimony.
However, if you decide that a witness did not tell the truth about
something important, you may choose not to believe anything that
witness said. On the other hand, if you think the witness did not tell the
truth about some things but told the truth about others, you may accept
the part you think is true and ignore the rest.
Do not make any decision simply because there were more witnesses on
one side than on the other. If you believe it is true, the testimony of a
single witness is enough to prove a fact.
New September 2003; Revised April 2004, June 2005, April 2007, December 2012,
June 2015, December 2016
Directions for Use
This instruction may be given as an introductory instruction or as a concluding
20
21
22
23
24
As [an] alternate juror[s], you are bound by the same rules that govern
the conduct of the jurors who are sitting on the panel. You will observe
the same trial and should pay attention to all of my instructions just as
if you were sitting on the panel. Sometimes a juror needs to be excused
during a trial for illness or some other reason. If that happens, an
alternate will be selected to take that juror’s place.
25
If, during the trial, you have a question that you believe should be
asked of a witness, you may write out the question and send it to me
through my courtroom staff. I will share your question with the
attorneys and decide whether it may be asked.
Do not feel disappointed if your question is not asked. Your question
may not be asked for a variety of reasons. For example, the question
may call for an answer that is not allowed for legal reasons. Also, you
should not try to guess the reason why a question is not asked or
speculate about what the answer might have been. Because the decision
whether to allow the question is mine alone, do not hold it against any
of the attorneys or their clients if your question is not asked.
Remember that you are not an advocate for one side or the other. Each
of you is an impartial judge of the facts. Your questions should be posed
in as neutral a fashion as possible. Do not discuss any question asked by
any juror with any other juror until after deliberations begin.
New February 2005; Revised April 2007, April 2009, June 2011
Directions for Use
This is an optional instruction for use if the jurors will be allowed to ask questions
of the witnesses. For an instruction to be given at the end of the trial, see CACI
No. 5019, Questions From Jurors. This instruction may be modified to account for
an individual judge’s practice.
Sources and Authority
• Written Questions From Jurors. Rule 2.1033 of the California Rules of Court.
• “In a proper case there may be a real benefit from allowing jurors to submit
questions under proper control by the court. However, in order to permit the
court to exercise its discretion and maintain control of the trial, the correct
procedure is to have the juror write the questions for consideration by the court
and counsel prior to their submission to the witness.” (People v. McAlister
(1985) 167 Cal.App.3d 633, 644 [213 Cal.Rptr. 271].)
• “[T]he judge has discretion to ask questions submitted by jurors or to pass those
questions on and leave to the discretion of counsel whether to ask the
questions.” (People v. Cummings (1993) 4 Cal.4th 1233, 1305 [18 Cal.Rptr.2d
796, 850 P.2d 1].)
• “The appellant urges that when jurymen ask improper questions the defendant is
placed in the delicate dilemma of either allowing such question to go in without
objection or of offending the jurors by making the objection and the appellant
insists that the court of its own motion should check the putting of such
26
improper questions by the jurymen, and thus relieve the party injuriously
affected thereby from the odium which might result from making that objection
thereto. There is no force in this contention. Objections to questions, whether
asked by a juror or by opposing counsel, are presented to the court, and its
ruling thereon could not reasonably affect the rights or standing of the party
making the objection before the jury in the one case more than in the other.”
(Maris v. H. Crummey, Inc. (1921) 55 Cal.App. 573, 578–579 [204 P. 259].)
Secondary Sources
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, § 85
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 7-E, Juror
Questioning Of Witnesses, ¶ 7:45.11b (The Rutter Group)
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§§ 91.01–91.03 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 4.96, 8.53 (Cal
CJER 2010)
27
28
From time to time during the trial, it may become necessary for me to
talk with the attorneys out of the hearing of the jury, either by having a
conference at the bench when the jury is present in the courtroom, or
by calling a recess to discuss matters outside of your presence. The
purpose of these conferences is not to keep relevant information from
you, but to decide how certain evidence is to be treated under the rules
of evidence. Do not be concerned about our discussions or try to guess
what is being said.
I may not always grant an attorney’s request for a conference. Do not
consider my granting or denying a request for a conference as any
indication of my opinion of the case or of my view of the evidence.
29
class suit both eliminates the possibility of repetitious litigation and provides
small claimants with a method of obtaining redress . . . .” ’ Generally, a class
suit is appropriate ‘when numerous parties suffer injury of insufficient size to
warrant individual action and when denial of class relief would result in unjust
advantage to the wrongdoer.’ ‘But because group action also has the potential to
create injustice, trial courts are required to ‘ “carefully weigh respective benefits
and burdens and to allow maintenance of the class action only where substantial
benefits accrue both to litigants and the courts.” ’ ” (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 434–435 [97 Cal.Rptr.2d 179, 2 P.3d 27], internal
citations omitted.)
• “The cases uniformly hold that a plaintiff seeking to maintain a class action
must be a member of the class he claims to represent.” (La Sala v. American
Sav. & Loan Assn. (1971) 5 Cal.3d 864, 875 [97 Cal.Rptr 849, 489 P.2d 1113].)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleading, § 267 et seq.
Cabraser, California Class Actions and Coordinated Proceedings (2d ed.), Ch. 3,
California’s Class Action Statute, § 3.03 (Matthew Bender)
Deskbook on the Management of Complex Civil Litigation, Ch. 3, Specialized
Areas, § 3.70 et seq. (Matthew Bender)
12 California Forms of Pleading and Practice, Ch. 120, Class Actions, §§ 120.11,
120.14 (Matthew Bender)
4 California Points and Authorities, Ch. 41, Class and Representative Actions,
§ 41.30 et seq. (Matthew Bender)
3 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 33,
Class Actions, 33.04
31
33
35
37
Cal.App.3d 314, 325 [276 Cal.Rptr. 430] (quoting People v. Miller (1916) 171
Cal. 649, 652 [154 P. 468] and holding that it was prejudicial misconduct for
jurors to refer to the dictionary for definition of the word “preponderance”).)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions,
§ 35
Jefferson, California Evidence Benchbook (3d ed. 1997) Ch. 45, Burdens of Proof
and of Producing Evidence; Presumptions
4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict,
§ 91.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.90, 551.92
(Matthew Bender)
39
41
[189 Cal.Rptr. 159, 658 P.2d 86]; People v. Goldstein (1956) 139 Cal.App.2d
146, 152 [293 P.2d 495].)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, §§ 1, 2
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, §§ 138–141
7 Witkin, California Procedure (5th ed. 2008) Trial, § 291
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.62 (Matthew
Bender)
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 19.12–19.18
43
44
Cal.3d 829, 836 fn. 2 [148 Cal.Rptr. 39, 582 P.2d 126], original italics.)
• “We can see no error in the trial court’s ruling [giving this instruction]. The jury
was told only that it could ‘consider whether one party intentionally concealed
or destroyed evidence.’ Defendants were free to present the jury with evidence
that (as counsel represented to the court), the redactions were only of telephone
numbers, and that the failure to interview certain witnesses was proper, and to
argue that evidence to the jury.” (Ventura v. ABM Industries Inc. (2012) 212
Cal.App.4th 258, 273 [150 Cal.Rptr.3d 861].)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 302
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 129
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.93 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 5.83, 12.10 (Cal
CJER 2010)
46
47
During the trial, certain evidence was admitted for a limited purpose.
You may consider that evidence only for that purpose and for no other.
instruction and may be permitted to assert error if the trial court unequivocally
rejects the argument upon which a limiting instruction would be based. (Warner
Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 298–299 [85
Cal.Rptr. 444, 466 P.2d 996].)
Secondary Sources
4 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 32–36
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 20.11–20.13
1A California Trial Guide, Unit 21, Procedures for Determining Admissibility of
Evidence, § 21.21 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.66[2], 551.77
(Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 4.106, 13.26
(Cal CJER 2010)
49
50
During the trial, you received deposition testimony that was [read from
the deposition transcript/[describe other manner presented, e.g., shown by
video]]. A deposition is the testimony of a person taken before trial. At a
deposition the person is sworn to tell the truth and is questioned by the
attorneys. You must consider the deposition testimony that was
presented to you in the same way as you consider testimony given in
court.
51
Before trial, each party has the right to ask the other parties to answer
written questions. These questions are called interrogatories. The
answers are also in writing and are given under oath. You must
consider the questions and answers that were read to you the same as if
the questions and answers had been given in court.
52
Before trial, each party has the right to ask another party to admit in
writing that certain matters are true. If the other party admits those
matters, you must accept them as true. No further evidence is required
to prove them.
[However, these matters must be considered true only as they apply to
the party who admitted they were true.]
53
You have heard that a witness in this trial has been convicted of a
felony. You were told about the conviction [only] to help you decide
whether you should believe the witness. [You also may consider the
evidence for the purpose of [specify].] You must not consider it for any
other purpose.
54
A party may offer into evidence any oral or written statement made by
an opposing party outside the courtroom.
When you evaluate evidence of such a statement, you must consider
these questions:
1. Do you believe that the party actually made the statement? If
you do not believe that the party made the statement, you may
not consider the statement at all.
2. If you believe that the statement was made, do you believe it was
reported accurately?
You should view testimony about an oral statement made by a party
outside the courtroom with caution.
56
You have heard evidence that [name of declarant] made the following
statement: [describe statement]. You may consider that statement as
evidence against [name of party against whom statement was offered] only
if you find that all of the following conditions are true:
1. The statement was made to [name of party against whom statement
was offered] or made in [his/her] presence;
2. [Name of party against whom statement was offered] heard and
understood the statement;
3. [Name of party against whom statement was offered] would, under
all the circumstances, naturally have denied the statement if [he/
she] thought it was not true;
3. AND
4. [Name of party against whom statement was offered] could have
denied it but did not.
If you decide that any of these conditions are not true, you must not
consider for any purpose either the statement or [name of party against
whom statement was offered]’s response.
[You must not consider this evidence against any other party.]
Neilson (1962) 57 Cal.2d 733, 746 [22 Cal.Rptr. 1, 371 P.2d 745].)
• In order for the hearsay evidence to be admissible, “it must have been shown
clearly that [the party] heard and understood the statement.” (Fisch v. Los
Angeles Metropolitan Transit Authority (1963) 219 Cal.App.2d 537, 540 [33
Cal.Rptr. 298].) There must also be evidence of some type of reaction to the
statement. (Ibid.) It is clear that the doctrine “does not apply if the party is in
such physical or mental condition that a reply could not reasonably be expected
from him.” (Southers v. Savage (1961) 191 Cal.App.2d 100, 104 [12 Cal.Rptr.
470].)
• “[T]here may be admissions other than statements made by the party himself;
that is, statements of another may in some circumstances be treated as
admissions of the party. The situations are (1) where the person who makes the
statement is in privity with the party against whom it is offered, as in the case
of agency, partnership, etc.; and (2) where the statement of the other is adopted
by the party as his own, either expressly or by conduct. Familiar examples of
this second situation are the admissions by silence, where declarations of third
persons made in the presence of a party give rise to admissions, the conduct of
the party in the face of the declaration constituting the adoption of the statement
to form an admission.” (In re Estate of Gaines (1940) 15 Cal.2d 255, 262 [100
P.2d 1055].)
• “The basis of the rule on admissions made in response to accusations is the fact
that human experience has shown that generally it is natural to deny an
accusation if a party considers himself innocent of negligence or wrongdoing.”
(Keller v. Key System Transit Lines (1954) 129 Cal.App.2d 593, 596 [277 P.2d
869].)
• If the statement is not accusatory, then the failure to respond is not an
admission. (Neilson, supra, 57 Cal.2d at p. 747; Gilbert v. City of Los Angeles
(1967) 249 Cal.App.2d 1006, 1008 [58 Cal.Rptr. 56].)
• Admissibility of this evidence depends upon whether (1) the statement was
made under circumstances that call for a reply, (2) whether the party understood
the statement, and (3) whether it could be inferred from his conduct that he
adopted the statement as an admission. (Gilbert, supra, 249 Cal.App.2d at p.
1009.)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Hearsay, §§ 102–105
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 3.23–3.30
Cotchett, California Courtroom Evidence, § 21.09 (Matthew Bender)
2 California Trial Guide, Unit 40, Hearsay, § 40.31 (Matthew Bender)
214. Reserved for Future Use
58
59
disclosure could result.’ ” (Troy v. Superior Court (1986) 186 Cal.App.3d 1006,
1010–1011 [231 Cal.Rptr. 108], internal citations omitted.)
• “The Fifth Amendment of the United States Constitution includes a provision
that ‘[no] person . . . shall be compelled in any criminal case to be a witness
against himself, . . . .’ Although the specific reference is to criminal cases, the
Fifth Amendment protection ‘has been broadly extended to a point where now it
is available even to a person appearing only as a witness in any kind of
proceeding where testimony can be compelled.’ ” (Brown v. Superior Court
(1986) 180 Cal.App.3d 701, 708 [226 Cal.Rptr. 10], citation and footnote
omitted.)
• “There is no question that the privilege against self-incrimination may be
asserted by civil defendants who face possible criminal prosecution based on
the same facts as the civil action. ‘All matters which are privileged against
disclosure upon the trial under the law of this state are privileged against
disclosure through any discovery procedure.’ ” (Brown, supra, 180 Cal.App.3d
at p. 708, internal citations omitted.)
• “California law, then, makes no distinction between civil and criminal litigation
concerning adverse inferences from a witness’s invocation of the privilege
against self-incrimination; under Evidence Code section 913, juries are
forbidden to make such inferences in both types of cases. No purpose is served,
therefore, in either type of trial by forcing a witness to exercise the privilege on
the stand in the jury’s presence, for . . . the court would then be ‘required, on
request, to instruct the jury not to draw the very inference [the party calling the
witness] sought to present to the jury.” (People v. Holloway (2004) 33 Cal. 4th
96, 131 [14 Cal.Rptr.3d 212, 91 P.3d 164], internal citations omitted.)
• “The privilege against self-incrimination is guaranteed by both the federal and
state Constitutions. As pointed out by the California Supreme Court, ‘two
separate and distinct testimonial privileges’ exist under this guarantee. First, a
defendant in a criminal case ‘has an absolute right not to be called as a witness
and not to testify.’ Second, ‘in any proceeding, civil or criminal, a witness has
the right to decline to answer questions which may tend to incriminate him [or
her] in criminal activity.’ ” (People v. Merfeld, supra, 57 Cal.App.4th at p.
1443, internal citations omitted.)
• “The jury may not draw any inference from a witness’s invocation of a
privilege. Upon request, the trial court must so instruct jurors. ‘To avoid the
potentially prejudicial impact of having a witness assert the privilege against
self-incrimination before the jury, we have in the past recommended that, in
determining the propriety of the witness’s invocation of the privilege, the trial
court hold a pretestimonial hearing outside the jury’s presence.’ Such a
procedure makes sense under the appropriate circumstances. If there is a dispute
about whether a witness may legitimately rely on the Fifth Amendment
privilege against self-incrimination to avoid testifying, that legal question should
be resolved by the court. Given the court’s ruling and the nature of the potential
testimony, the witness may not be privileged to testify at all, or counsel may
61
elect not to call the witness as a matter of tactics.” (People v. Doolin, supra, 45
Cal.4th at pp. 441–442, original italics, internal citations omitted.)
• “Once a court determines a witness has a valid Fifth Amendment right not to
testify, it is, of course, improper to require him to invoke the privilege in front
of a jury; such a procedure encourages inappropriate speculation on the part of
jurors about the reasons for the invocation. An adverse inference, damaging to
the defense, may be drawn by jurors despite the possibility the assertion of
privilege may be based upon reasons unrelated to guilt.” (Victaulic Co. v.
American Home Assurance Co. (2018) 20 Cal.App.5th 948, 981 [229
Cal.Rptr.3d 545].)
Secondary Sources
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 98
5 Levy et al., California Torts, Ch. 72, Discovery, §§ 72.20, 72.30 (Matthew
Bender)
Cotchett, California Courtroom Evidence, § 18.09 (Matthew Bender)
3 California Trial Guide, Unit 51, Privileges, § 51.32 (Matthew Bender)
16 California Forms of Pleading and Practice, Ch. 191, Discovery: Privileges and
Other Discovery Limitations, § 191.30 et seq. (Matthew Bender)
1 California Deposition and Discovery Practice, Ch. 21, Privileged Matters in
General, § 21.20, Ch. 22, Privilege Against Self-Incrimination (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 8.74 (Cal CJER
2010)
62
You have heard evidence that there was a settlement between [insert
names of settling parties]. You must not consider this settlement to
determine responsibility for any harm. You may consider this evidence
only to decide whether [insert name of witness who settled] is biased or
prejudiced and whether [his/her] testimony is believable.
63
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, §§ 140–148
Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 34.15–34.24
3 California Trial Guide, Unit 50, Extrinsic Policies Affecting or Excluding
Evidence, § 50.20 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.68 (Matthew
Bender)
64
65
During the trial you heard testimony from expert witnesses. The law
allows an expert to state opinions about matters in his or her field of
expertise even if he or she has not witnessed any of the events involved
in the trial.
You do not have to accept an expert’s opinion. As with any other
witness, it is up to you to decide whether you believe the expert’s
testimony and choose to use it as a basis for your decision. You may
believe all, part, or none of an expert’s testimony. In deciding whether
to believe an expert’s testimony, you should consider:
a. The expert’s training and experience;
b. The facts the expert relied on; and
c. The reasons for the expert’s opinion.
testimony would be likely to assist the jury in the search for the truth . . . .
[Citation.] Where a witness has disclosed sufficient knowledge, the question of
the degree of knowledge goes more to the weight of the evidence than its
admissibility. [Citation.]’ ” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959,
969 [191 Cal.Rptr.3d 766].)
• The “credibility of expert witnesses is a matter for the jury after proper
instructions from the court.” (Williams v. Volkswagenwerk Aktiengesellschaft
(1986) 180 Cal.App.3d 1244, 1265 [226 Cal.Rptr. 306].)
• “[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court
acts as a gatekeeper to exclude expert opinion testimony that is (1) based on
matter of a type on which an expert may not reasonably rely, (2) based on
reasons unsupported by the material on which the expert relies, or (3)
speculative. Other provisions of law, including decisional law, may also provide
reasons for excluding expert opinion testimony. [¶] But courts must also be
cautious in excluding expert testimony. The trial court’s gatekeeping role does
not involve choosing between competing expert opinions.” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771−772 [149
Cal.Rptr.3d 614, 288 P.3d 1237], footnote omitted.)
• “ ‘Generally, the opinion of an expert is admissible when it is “[r]elated to a
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact . . . .” [Citations.] Also, “[t]estimony in the
form of an opinion that is otherwise admissible is not objectionable because it
embraces the ultimate issue to be decided by the trier of fact.” [Citation.]
However, “ ‘Where the jury is just as competent as the expert to consider and
weigh the evidence and draw the necessary conclusions, then the need for
expert testimony evaporates.’ ” ’ Expert testimony will be excluded ‘ “ ‘when it
would add nothing at all to the jury’s common fund of information, i.e., when
‘the subject of inquiry is one of such common knowledge that men of ordinary
education could reach a conclusion as intelligently as the witness.” ’ ” ’ ”
(Burton v. Sanner (2012) 207 Cal.App.4th 12, 19 [142 Cal.Rptr.3d 782],
internal citations omitted.)
• Under Evidence Code section 801(a), expert witness testimony “must relate to a
subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.” (New v. Consolidated Rock Products Co.
(1985) 171 Cal.App.3d 681, 692 [217 Cal.Rptr. 522].)
• Expert witnesses are qualified by special knowledge to form opinions on facts
that they have not personally witnessed. (Manney v. Housing Authority of The
City of Richmond (1947) 79 Cal.App.2d 453, 460 [180 P.2d 69].)
• “Although a jury may not arbitrarily or unreasonably disregard the testimony of
an expert, it is not bound by the expert’s opinion. Instead, it must give to each
opinion the weight which it finds the opinion deserves. So long as it does not
do so arbitrarily, a jury may entirely reject the testimony of a plaintiff’s expert,
even where the defendant does not call any opposing expert and the expert
67
68
The law allows expert witnesses to be asked questions that are based on
assumed facts. These are sometimes called “hypothetical questions.”
In determining the weight to give to the expert’s opinion that is based
on the assumed facts, you should consider whether the assumed facts
are true.
Farm Mutual Automobile Insurance Co. (1977) 66 Cal.App.3d 981, 995 [136
Cal.Rptr. 331].)
• The jury should not be instructed that they are entitled to reject the entirety of
an expert’s opinion if a hypothetical assumption has not been proven. Rather,
the jury should be instructed “to determine the effect of that failure of proof on
the value and weight of the expert opinion based on that assumption.” (Lysick v.
Walcom (1968) 258 Cal.App.2d 136, 156 [65 Cal.Rptr. 406].)
• “The jury still plays a critical role in two respects. First, it must decide whether
to credit the expert’s opinion at all. Second, it must determine whether the facts
stated in the hypothetical questions are the actual facts, and the significance of
any difference between the actual facts and the facts stated in the questions.”
(People v. Vang, supra, 52 Cal.4th at pp. 1049–1050.)
• “[Experts] . . . can rely on background information accepted in their field of
expertise under the traditional latitude given by the Evidence Code. They can
rely on information within their personal knowledge, and they can give an
opinion based on a hypothetical including case-specific facts that are properly
proven. They may also rely on nontestimonial hearsay properly admitted under
a statutory hearsay exception.” (People v. Sanchez (2016) 63 Cal.4th 665, 685
[204 Cal.Rptr.3d 102, 374 P.3d 320].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 208–215
Jefferson, California Evidence Benchbook (3d ed. 1997) § 29.43, pp. 609–610
3A California Trial Guide, Unit 60, Opinion Testimony, §§ 60.05, 60.50–60.51
(Matthew Bender)
California Products Liability Actions, Ch. 4, The Role of the Expert, § 4.03
(Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.70 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 8.92 (Cal CJER
2010)
70
If the expert witnesses disagreed with one another, you should weigh
each opinion against the others. You should examine the reasons given
for each opinion and the facts or other matters that each witness relied
on. You may also compare the experts’ qualifications.
71
You have heard evidence that there was a settlement agreement between
[name of settling defendant] and [name of plaintiff].
Under this agreement, the amount of money that [name of settling
defendant] will have to pay to [name of plaintiff] will depend on the
amount of money that [name of plaintiff] receives from [name of
nonsettling defendant] at trial. The more money that [name of plaintiff]
might receive from [name of nonsettling defendant], the less that [name of
settling defendant] will have to pay under the agreement.
You may consider evidence of the settlement only to decide whether
[name of settling defendant/name of witness] [, who testified on behalf of
[name of settling defendant],] is biased or prejudiced and whether [his/
her] testimony is believable.
73
74
75
78
is a conclusion of law drawn by the court from the facts of a given case . . . .”
(Mitchell, supra, 25 Cal.2d at p. 48, italics added.)
• Estoppel is a “nonjury fact question to be determined by the trial court in
accordance with applicable law.” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum
Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35 Cal.Rptr.2d 515].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 847–867
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.50
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.10 et seq. (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
80
it was entered. [Citation.]” (Jones v. Aetna Casualty & Surety Co. (1994) 26
Cal.App.4th 1717, 1725 [33 Cal.Rptr.2d 291].)
• Restatement Second of Contracts, section 302, provides:
(1) Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if recognition of
a right to performance in the beneficiary is appropriate to effectuate
the intention of the parties and either
(a) the performance of the promise will satisfy an obligation
of the promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to
give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended
beneficiary.
This section has been cited by California courts. (See, e.g., Outdoor Services v.
Pabagold (1986) 185 Cal.App.3d 676, 684 [230 Cal.Rptr. 73].)
• The burden is on the third party “to prove that the performance [it] seeks was
actually promised.” (Garcia v. Truck Insurance Exchange (1984) 36 Cal.3d 426,
436 [204 Cal.Rptr. 435, 682 P.2d 1100]; Neverkovec v. Fredericks (1999) 74
Cal.App.4th 337, 348–349 [87 Cal.Rptr.2d 856].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 685–706
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.83,
140.103, 140.131 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.132 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.11 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 19, Seeking
or Opposing Recovery As Third Party Beneficiary of Contract, 19.03–19.06
82
New September 2003; Revised October 2004, June 2011, June 2014
Directions for Use
This instruction should only be given if the existence of a contract is contested. At
other times, the parties may be contesting only a limited number of contract
formation issues. Also, some of these issues may be decided by the judge as a
matter of law. Read the bracketed paragraph only if element 3 is read.
The elements regarding legal capacity and legal purpose are omitted from this
instruction because these issues are not likely to be before the jury. If legal
capacity or legal purpose is factually disputed then this instruction should be
amended to add that issue as an element. Regarding legal capacity, the element
could be stated as follows: “That the parties were legally capable of entering into a
contract.” Regarding legal purpose, the element could be stated as follows: “That
the contract had a legal purpose.”
The final element of this instruction would be given before instructions on offer
and acceptance. If neither offer nor acceptance is contested, then this element of the
instruction will not need to be given to the jury.
Sources and Authority
• Essential Elements of Contract. Civil Code section 1550.
• Who May Contract. Civil Code section 1556.
• Consent. Civil Code section 1565.
83
85
New September 2003; Revised April 2004, June 2006, December 2010, June 2011,
June 2013, June 2015, December 2016
Directions for Use
Read this instruction in conjunction with CACI No. 300, Breach of
Contract—Introduction.
Optional elements 2 and 3 both involve conditions precedent. A “condition
precedent” is either an act of a party that must be performed or an uncertain event
that must happen before the contractual right accrues or the contractual duty arises.
(Stephens & Stephens XII, LLC v. Fireman’s Fund Ins. Co. (2014) 231 Cal.App.4th
1131, 1147 [180 Cal.Rptr.3d 683].) Element 2 involves the first kind of condition
86
precedent; an act that must be performed by one party before the other is required
to perform. Include the second option if the plaintiff alleges that he or she was
excused from having to perform some or all of the contractual conditions.
Not every breach of contract by the plaintiff will relieve the defendant of the
obligation to perform. The breach must be material; element 2 captures materiality
by requiring that the plaintiff have done the significant things that the contract
required. Also, the two obligations must be dependent, meaning that the parties
specifically bargained that the failure to perform the one relieves the obligation to
perform the other. While materiality is generally a question of fact, whether
covenants are dependent or independent is a matter of construing the agreement.
(Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279 [120 Cal.Rptr.3d 893].) If
there is no extrinsic evidence in aid of construction, the question is one of law for
the court. (Verdier v. Verdier (1955) 133 Cal.App.2d 325, 333 [284 P.2d 94].)
Therefore, element 2 should not be given unless the court has determined that
dependent obligations are involved. If parol evidence is required and a dispute of
facts is presented, additional instructions on the disputed facts will be necessary.
(See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th
375, 395 [75 Cal.Rptr.3d 333, 181 P.3d 142].)
Element 3 involves the second kind of condition precedent; an uncertain event that
must happen before contractual duties are triggered. Include the second option if
the plaintiff alleges that the defendant agreed to perform even though a condition
did not occur. For reasons that the occurrence of a condition may have been
excused, see the Restatement Second of Contracts, section 225, Comment b. See
also CACI No. 321, Existence of Condition Precedent Disputed, CACI No. 322,
Occurrence of Agreed Condition Precedent, and CACI No. 323, Waiver of
Condition Precedent.
Element 6 states the test for causation in a breach of contract action: whether the
breach was a substantial factor in causing the damages. (US Ecology, Inc. v. State
of California (2005) 129 Cal.App.4th 887, 909 [28 Cal.Rptr.3d 894].) In the
context of breach of contract, it has been said that the term “substantial factor” has
no precise definition, but is something that is more than a slight, trivial, negligible,
or theoretical factor in producing a particular result. (Haley v. Casa Del Rey
Homeowners Assn. (2007) 153 Cal.App.4th 863, 871–872 [63 Cal.Rptr.3d 514]; see
CACI No. 430, Causation—Substantial Factor, applicable to negligence actions.)
Equitable remedies are also available for breach. “As a general proposition, ‘[t]he
jury trial is a matter of right in a civil action at law, but not in equity.
[Citations.]’ ” (C & K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23
Cal.3d 1, 8 [151 Cal.Rptr. 323, 587 P.2d 1136]; Selby Constructors v. McCarthy
(1979) 91 Cal.App.3d 517, 524 [154 Cal.Rptr. 164].) However, juries may render
advisory verdicts on these issues. (Raedeke v. Gibraltar Savings & Loan Assn.
(1974) 10 Cal.3d 665, 670–671 [111 Cal.Rptr. 693, 517 P.2d 1157].)
Sources and Authority
• Contract Defined. Civil Code section 1549.
87
90
writing.’ ” (Masterson v. Sine (1968) 68 Cal.2d 222, 225 [65 Cal.Rptr. 545, 436
P.2d 561].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts § 117
Wegner et al., California Practice Guide: Civil Trials & Evidence, Ch. 8E-G, Parol
Evidence Rule, ¶ 8:3145 (The Rutter Group)
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.83
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.12 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.03–13.17
92
94
[Name of defendant] contends that the parties did not enter into a
contract because they had not signed a final written agreement. To
prove that a contract was created, [name of plaintiff] must prove both of
the following:
1. That the parties understood and agreed to the terms of the
agreement; and
2. That the parties agreed to be bound before a written agreement
was completed and signed.
• “Whether it was the parties’ mutual intention that their oral agreement to the
terms contained in a proposed written agreement should be binding immediately
is to be determined from the surrounding facts and circumstances of a particular
case and is a question of fact for the trial court.” (Banner Entertainment, Inc.,
supra, 62 Cal.App.4th at p. 358.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 133, 134
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.350 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.07[3]
96
First Capital Life Insurance Co. (1995) 34 Cal.App.4th 1283, 1287 [40
Cal.Rptr.2d 816].)
• Offers should be contrasted with preliminary negotiations: “Preliminary
negotiations or an agreement for future negotiations are not the functional
equivalent of a valid, subsisting agreement.” (Kruse v. Bank of America (1988)
202 Cal.App.3d 38, 59 [248 Cal.Rptr. 217].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 116, 117,
125–137
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.210 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.18–13.24
98
100
question of fact. Further, based on the general rule that manifested mutual
assent rather than actual mental assent is the essential element in the formation
of contracts, the test of the true meaning of an acceptance or rejection is not
what the party making it thought it meant or intended it to mean. Rather, the
test is what a reasonable person in the position of the parties would have
thought it meant.” (Guzman, supra, 71 Cal.App.4th at pp. 1376–1377.)
• “Acceptance of an offer, which may be manifested by conduct as well as by
words, must be expressed or communicated by the offeree to the offeror.”
(Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114 [86 Cal.Rptr. 424].)
• “The Restatement Second of Contracts, section 60 provides, ‘If an offer
prescribes the place, time or manner of acceptance its terms in this respect must
be complied with in order to create a contract. If an offer merely suggests a
permitted place, time or manner of acceptance, another method of acceptance is
not precluded.’ Comment a to Restatement 2d, section 60 provides, ‘a.
Interpretation of offer. If the offeror prescribes the only way in which his offer
may be accepted, an acceptance in any other way is a counter-offer. But
frequently in regard to the details of methods of acceptance, the offeror’s
language, if fairly interpreted, amounts merely to a statement of a satisfactory
method of acceptance, without positive requirement that this method shall be
followed.’ [¶] Similarly, Restatement 2d, section 30 provides in relevant part,
‘Unless otherwise indicated by the language or the circumstances, an offer
invites acceptance in any manner and by any medium reasonable in the
circumstances.’ Comment b to Restatement 2d section 30 states: ‘Invited form.
Insistence on a particular form of acceptance is unusual. Offers often make no
express reference to the form of acceptance; sometimes ambiguous language is
used. Language referring to a particular mode of acceptance is often intended
and understood as suggestion rather than limitation; the suggested mode is then
authorized, but other modes are not precluded. In other cases language which in
terms refers to the mode of acceptance is intended and understood as referring
to some more important aspect of the transaction, such as the time limit for
acceptance.’ ” (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232
Cal.App.4th 294, 311–312 [181 Cal.Rptr.3d 399], original italics, footnote
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 180–192
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.22
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.352 (Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.214 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.25–13.31
102
103
105
[Name of defendant] contends that [name of plaintiff] did not perform all
of the things that [he/she/it] was required to do under the contract, and
therefore [name of defendant] did not have to perform [his/her/its]
obligations under the contract. To overcome this contention, [name of
plaintiff] must prove both of the following:
1. That [name of plaintiff] made a good faith effort to comply with
the contract; and
2. That [name of defendant] received essentially what the contract
called for because [name of plaintiff]’s failures, if any, were so
trivial or unimportant that they could have been easily fixed or
paid for.
107
109
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.04[2][b], 21.14[2]
112
You should assume that the parties intended the words in their contract
to have their usual and ordinary meaning unless you decide that the
parties intended the words to have a special meaning.
113
You should assume that the parties intended technical words used in the
contract to have the meaning that is usually given to them by people
who work in that technical field, unless you decide that the parties
clearly used the words in a different sense.
114
116
In deciding what the words in a contract meant to the parties, you may
consider how the parties acted after the contract was created but before
any disagreement between the parties arose.
117
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 749
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.32
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 13, Attacking
or Defending Existence of Contract—Absence of Essential Element, 13.51
118
If a contract does not state a specific time in which the parties are to
meet the requirements of the contract, then the parties must meet them
within a reasonable time. What is a reasonable time depends on the
facts of each case, including the subject matter of the contract, the
reasons each party entered into the contract, and the intentions of the
parties at the time they entered the contract.
119
In determining the meaning of the words of the contract, you must first
consider all of the other instructions that I have given you. If, after
considering these instructions, you still cannot agree on the meaning of
the words, then you should interpret the contract against [the party that
drafted the disputed words/the party that caused the uncertainty].
121
123
The parties agreed in their contract that [name of defendant] would not
have to [insert duty] unless [insert condition precedent]. [Name of
defendant] contends that this condition did not occur and that [he/she/it]
did not have to [insert duty]. To overcome this contention, [name of
plaintiff] must prove that [insert condition precedent].
If [name of plaintiff] does not prove that [insert condition precedent], then
[name of defendant] was not required to [insert duty].
an action for breach of contract.’ ” (Stephens & Stephens XII, LLC, supra, 231
Cal.App.4th at p. 1147.)
• “[W]here defendant’s duty to perform under the contract is conditioned on the
happening of some event, the plaintiff must prove the event transpired.”
(Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9
Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)
• “When a contract establishes the satisfaction of one of the parties as a condition
precedent, two tests are recognized: (1) The party is bound to make his decision
according to the judicially discerned, objective standard of a reasonable person;
(2) the party may make a subjective decision regardless of reasonableness,
controlled only by the need for good faith. Which test applies in a given
transaction is a matter of actual or judicially inferred intent. Absent an explicit
contractual direction or one implied from the subject matter, the law prefers the
objective, i.e., reasonable person, test.” (Guntert v. City of Stockton (1974) 43
Cal.App.3d 203, 209 [117 Cal.Rptr. 601], internal citations omitted.)
• “[T]he parol evidence rule does not apply to conditions precedent.” (Karpinski,
supra, 246 Cal.App.4th at p. 464, fn 6.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 776–791
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.44,
140.101 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.20–50.22 (Matthew
Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.19, 22.66
125
no disputed facts and only one reasonable inference may be drawn, the issue
can be determined as a matter of law.’ ” (DuBeck v. California Physicians’
Service (2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• Section 84 of the Restatement Second of Contracts provides:
(1) Except as stated in Subsection (2), a promise to perform all or
part of a conditional duty under an antecedent contract in spite of
the non-occurrence of the condition is binding, whether the promise
is made before or after the time for the condition to occur, unless
(a) occurrence of the condition was a material part of the
agreed exchange for the performance of the duty and the
promisee was under no duty that it occur; or
(b) uncertainty of the occurrence of the condition was an
element of the risk assumed by the promisor.
(2) If such a promise is made before the time for the occurrence of
the condition has expired and the condition is within the control of
the promisee or a beneficiary, the promisor can make his duty again
subject to the condition by notifying the promisee or beneficiary of
his intention to do so if
(a) the notification is received while there is still a reasonable
time to cause the condition to occur under the antecedent terms
or an extension given by the promisor; and
(b) reinstatement of the requirement of the condition is not
unjust because of a material change of position by the
promisee or beneficiary; and
(c) the promise is not binding apart from the rule stated in
Subsection (1).
Secondary Sources
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.48
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.44
(Matthew Bender)
27 California Legal Forms Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.231 (Matthew Bender)
127
129
New April 2004; Revised June 2011, December 2012, June 2014
Directions for Use
This instruction should be given if the plaintiff has brought a separate count for
breach of the covenant of good faith and fair dealing. It may be given in addition
to CACI No. 303, Breach of Contract—Essential Factual Elements, if breach of
contract on other grounds is also alleged. For discussion of element 3, see the
Directions for Use to CACI No. 303.
If a claim for breach of the implied covenant does nothing more than allege a mere
contract breach and, relying on the same alleged acts, simply seeks the same
damages or other relief already claimed in a contract cause of action, it may be
disregarded as superfluous because no additional claim is actually stated. (Careau
& Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395
[272 Cal.Rptr. 387].) The harm alleged in element 5 may produce contract damages
that are different from those claimed for breach of the express contract provisions.
(See Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194
Cal.App.4th 873, 885 [123 Cal.Rptr.3d 736] [noting that gravamen of the two
130
132
• “An assignor may not maintain an action upon a claim after making an absolute
assignment of it to another; his right to demand performance is extinguished,
the assignee acquiring such right. To ‘assign’ ordinarily means to transfer title
or ownership of property, but an assignment, to be effective, must include
manifestation to another person by the owner of his intention to transfer the
right, without further action, to such other person or to a third person. It is the
substance and not the form of a transaction which determines whether an
assignment was intended. If from the entire transaction and the conduct of the
parties it clearly appears that the intent of the parties was to pass title to the
chose in action, then an assignment will be held to have taken place.” (McCown
v. Spencer (1970) 8 Cal.App.3d 216, 225 [87 Cal.Rptr. 213], internal citations
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 707–719
6 California Forms of Pleading and Practice, Ch. 60, Assignments, § 60.20
(Matthew Bender)
27 California Legal Forms, Ch. 76, Assignments of Rights and Obligations,
§ 76.201 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59
134
135
asserts that the plaintiff is not entitled to recover on the contract because of the
plaintiff’s failure to perform its duties competently. (See Roscoe Moss Co. v.
Jenkins (1942) 55 Cal.App.2d 369, 376–378 [130 P.2d 477].)
For discussion of issues with the options for elements 2 and 3, see the Directions
for Use to CACI No. 303, Breach of Contract—Essential Factual Elements.
Sources and Authority
• “[E]xpress contractual terms give rise to implied duties, violations of which
may themselves constitute breaches of contract. ‘ “Accompanying every contract
is a common-law duty to perform with care, skill, reasonable expedience, and
faithfulness the thing agreed to be done, and a negligent failure to observe any
of these conditions is a tort, as well as a breach of the contract.” The rule
which imposes this duty is of universal application as to all persons who by
contract undertake professional or other business engagements requiring the
exercise of care, skill and knowledge; the obligation is implied by law and need
not be stated in the agreement [citation].’ ” (Holguin, supra, 229 Cal.App.4th at
p. 1324.)
• “A contract to perform services gives rise to a duty of care which requires that
such services be performed in a competent and reasonable manner.” (North
American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [69
Cal.Rptr.2d 466].)
• “[T]he statement in the written contract that it contains the entire agreement of
the parties cannot furnish the appellants an avenue of escape from the entirely
reasonable obligation implied in all contracts to the effect that the work
performed ‘shall be fit and proper for its said intended use,’ as stated by the
trial court.” (Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d
552].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2010) Contracts, §§ 798, 800
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.12
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Crompton et al., Matthew Bender Practice Guide: California Contract Litigation,
Ch. 21, Asserting a Particular Construction of Contract, 21.79
329. Reserved for Future Use
137
139
141
consent: “[A]n action for duress and menace cannot be sustained when the
voluntary action of the apprehensive party is induced by his speculation upon or
anticipation of a future event suggested to him by the defendant but not
threatened to induce his conduct. The issue in each instance is whether the
defendant intentionally exerted an unlawful pressure on the injured party to
deprive him of contractual volition and induce him to act to his own detriment.”
(Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894–895 [57 Cal.Rptr. 19].)
• It is wrongful to use the threat of criminal prosecution to obtain a consent:
“California law is clear that an agreement obtained by threat of criminal
prosecution constitutes menace and is unenforceable as against public policy.”
(Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15
Cal.App.4th 119, 127 [18 Cal.Rptr.2d 626].) However, a threat of legitimate
civil action is not considered wrongful: “[T]he action or threat in duress or
menace must be unlawful, and a threat to take legal action is not unlawful
unless the party making the threat knows the falsity of his claim.” (Odorizzi v.
Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
• Standard duress is evaluated under a subjective standard: “The question in each
case [is], Was the person so acted upon by threats of the person claiming the
benefit of the contract, for the purpose of obtaining such contract, as to be
bereft of the quality of mind essential to the making of a contract, and was the
contract thereby obtained? Hence, under this theory duress is to be tested, not
by the nature of the threats, but rather by the state of mind induced thereby in
the victim.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 744 [129
Cal.Rptr. 566].)
• The wrongful acts of a third party may constitute duress sufficient to allow
rescission of a contract with a party, who, although not participating in those
wrongful acts, had knowledge of the innocent party’s position. (Leeper v.
Beltrami (1959) 53 Cal.2d 195, 205–206 [1 Cal.Rptr. 12, 347 P.2d 12].)
• “[Defendant has] the burden of proving by a preponderance of the evidence the
affirmative of the issues of duress and plaintiff’s default.” (Fio Rito v. Fio Rito
(1961) 194 Cal.App.2d 311, 322 [14 Cal.Rptr. 845]; cf. Stevenson v. Stevenson
(1940) 36 Cal.App.2d 494, 500 [97 P.2d 982].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 309–315
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121
(Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.20 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.351 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
143
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.20–17.24[1]
144
New September 2003; Revised December 2005, June 2011, December 2011
Directions for Use
Different elements may apply if economic duress is alleged to avoid an agreement
to settle a debt. (See Perez v. Uline, Inc. (2007) 157 Cal.App.4th 953, 959–960 [68
Cal.Rptr.3d 872].)
Element 2 requires that the defendant have had “no reasonable alternative” other
than to consent. Economic duress to avoid a settlement agreement may require that
the creditor be placed in danger of imminent bankruptcy or financial ruin. (See
Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154,
1156–1157, 204 Cal.Rptr. 86].) At least one court has stated this standard in a case
not involving a settlement (see Uniwill v. City of Los Angeles (2004) 124
Cal.App.4th 537, 545 [21 Cal.Rptr.3d 464]), though most cases do not require that
the only alternative be bankruptcy or financial ruin. (See, e.g., Chan v. Lund (2010)
188 Cal.App.4th 1159, 1173–1174 [116 Cal.Rptr.3d 122].)
In the next-to-last paragraph, state the rule that makes the alleged conduct
wrongful. (See Restatement 2d of Contracts, § 176, When a Threat is Improper.)
The conduct must be something more than the breach or threatened breach of the
contract itself. An act for which a party has an adequate legal remedy is not duress.
(River Bank America v. Diller (1995) 38 Cal.App.4th 1400, 1425 [45 Cal.Rptr.2d
790].)
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
145
• “The doctrine of ‘economic duress’ can apply when one party has done a
wrongful act which is sufficiently coercive to cause a reasonably prudent
person, faced with no reasonable alternative, to agree to an unfavorable
contract. The party subjected to the coercive act, and having no reasonable
alternative, can then plead ‘economic duress’ to avoid the contract.” (CrossTalk
Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 644 [76 Cal.Rptr.2d
615], internal citation omitted.)
• The nonexistence of a “reasonable alternative” is a question of fact. (CrossTalk
Productions, Inc., supra, 65 Cal.App.4th at p. 644.)
• “ ‘At the outset it is helpful to acknowledge the various policy considerations
which are involved in cases involving economic duress. Typically, those
claiming such coercion are attempting to avoid the consequences of a
modification of an original contract or of a settlement and release agreement.
On the one hand, courts are reluctant to set aside agreements because of the
notion of freedom of contract and because of the desirability of having private
dispute resolutions be final. On the other hand, there is an increasing
recognition of the law’s role in correcting inequitable or unequal exchanges
between parties of disproportionate bargaining power and a greater willingness
to not enforce agreements which were entered into under coercive
circumstances.’ ” (Rich & Whillock, Inc., supra, 157 Cal.App.3d at p. 1158.)
• “ ‘As it has evolved to the present day, the economic duress doctrine is not
limited by early statutory and judicial expressions requiring an unlawful act in
the nature of a tort or a crime. . . . Instead, the doctrine now may come into
play upon the doing of a wrongful act which is sufficiently coercive to cause a
reasonably prudent person faced with no reasonable alternative to succumb to
the perpetrator’s pressure. . . . The assertion of a claim known to be false or a
bad faith threat to breach a contract or to withhold a payment may constitute a
wrongful act for purposes of the economic duress doctrine. . . . Further, a
reasonably prudent person subject to such an act may have no reasonable
alternative but to succumb when the only other alternative is bankruptcy or
financial ruin. . . .’ ” (Chan, supra, 188 Cal.App.4th at pp. 1173–1174.)
• “ ‘It is not duress . . . to take a different view of contract rights, even though
mistaken, from that of the other contracting party, and it is not duress to refuse,
in good faith, to proceed with a contract, even though such refusal might later
be found to be wrong. [¶] . . . “A mere threat to withhold a legal right for the
enforcement of which a person has an adequate [legal] remedy is not
duress.” ’ ” (River Bank America, supra, 38 Cal.App.4th at p. 1425.)
• “[W]rongful acts will support a claim of economic duress when ‘a reasonably
prudent person subject to such an act may have no reasonable alternative but to
succumb when the only other alternative is bankruptcy or financial ruin.’ ”
(Uniwill, supra, 124 Cal.App.4th at p. 545.)
• “Economic duress has been recognized as a basis for rescinding a settlement.
However, the courts, in desiring to protect the freedom of contracts and to
146
147
“It is, of course, well settled that while the mere fact that a relationship is
friendly and intimate does not necessarily amount to a confidential relationship,
such relationship may be said to exist whenever trust and confidence is reposed
by one person in the integrity and fidelity of another. It is likewise frequently
emphasized that the existence of a confidential relationship presents a question
of fact which, of necessity, may be determined only on a case by case basis.”
(O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 153 [119 Cal.Rptr. 245], internal
citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 316–321
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.40–215.42, 215.130–215.132 (Matthew
Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.70 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.352 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.25–17.28
149
151
• “Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
no disputed facts and only one reasonable inference may be drawn, the issue
can be determined as a matter of law.’ ” (DuBeck v. California Physicians’
Service (2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• When the injured party with knowledge of the breach continues to accept
performance from the guilty party, such conduct may constitute a waiver of the
breach. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435,
440–441 [6 P.2d 71].)
• There can be no waiver where the one against whom it is asserted has acted
without full knowledge of the facts. It cannot be presumed, in the absence of
such knowledge, that there was an intention to waive an existing right. (Craig v.
White (1921) 187 Cal. 489, 498 [202 P. 648].)
• “[N]otwithstanding a provision in a written contract that expressly precludes
oral modification, the parties may, by their words or conduct, waive the
enforcement of a contract provision if the evidence shows that was their intent.”
(Wind Dancer Production Group, supra, 10 Cal.App.5th at p. 80.)
• “The burden, moreover, is on the party claiming a waiver of a right to prove it
by clear and convincing evidence that does not leave the matter to speculation,
and ‘doubtful cases will be decided against a waiver’.” (City of Ukiah v. Fones
(1966) 64 Cal.2d 104, 107–108 [48 Cal.Rptr. 865, 410 P.2d 369].)
• “The trial court correctly instructed the jury that the waiver of a known right
must be shown by clear and convincing proof.” (DRG/Beverly Hills, Ltd. v.
Chopstix Dim Sum Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35
Cal.Rptr.2d 515].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed.) Contracts, §§ 856, 857
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57,
140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08, 22.65, 22.68
153
asserting it. (Alexander v. Angel (1951) 37 Cal.2d 856, 860 [236 P.2d 561].)
• “When there is conflicting evidence the question whether the parties to an
agreement entered into a modification or a novation is a question of fact.”
(Howard v. County of Amador (1990) 220 Cal.App.3d 962, 980 [269 Cal.Rptr.
807].)
• “The ‘question whether a novation has taken place is always one of intention,’
with the controlling factor being the intent of the obligee to effect a release of
the original obligor on his obligation under the original agreement.” (Alexander,
supra, 37 Cal.2d at p. 860, internal citations omitted.)
• “[I]n order for there to be a valid novation, it is necessary that the parties
intend that the rights and obligations of the new contract be substituted for the
terms and conditions of the old contract.” (Wade v. Diamond A Cattle Co.
(1975) 44 Cal.App.3d 453, 457 [118 Cal.Rptr. 695].)
• “While the evidence in support of a novation must be ‘clear and convincing,’
the ‘whole question is one of fact and depends upon all the facts and
circumstances of the particular case,’ with the weight and sufficiency of the
proof being matters for the determination of the trier of the facts under the
general rules applicable to civil actions.” (Alexander, supra, 37 Cal.2d at pp.
860–861, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 961–963
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.141
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.450–50.464 (Matthew
Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, §§ 77.20,
77.280–77.282 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 21, Asserting
a Particular Construction of Contract, 21.58[3]
155
Cal.Rptr.2d 680].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 508–548
5 Witkin, California Procedure (5th ed. 2008) Pleading, § 1072
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 344
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.42[2]
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.120 et seq. (Matthew
Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 4, Determining
Applicable Statute of Limitations and Effect on Potential Action, 4.03 et seq.
339–349. Reserved for Future Use
157
the same position it would have held had the contract properly been performed,
but such damage may not exceed the benefit which it would have received had
the promisor performed.” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 468,
internal citations omitted.)
• “ ‘The rules of law governing the recovery of damages for breach of contract
are very flexible. Their application in the infinite number of situations that arise
is beyond question variable and uncertain. Even more than in the case of other
rules of law, they must be regarded merely as guides to the court, leaving much
to the individual feeling of the court created by the special circumstances of the
particular case.’ ” (Brandon & Tibbs, supra, 226 Cal.App.3d at p. 455, internal
citation omitted.)
• Contractual damages are of two types—general damages (sometimes called
direct damages) and special damages (sometimes called consequential
damages).” (Lewis Jorge Construction Management, Inc. v. Pomona Unified
School Dist. (2004) 34 Cal.4th 960, 968 [22 Cal.Rptr.3d 340, 102 P.3d 257].)
• “General damages are often characterized as those that flow directly and
necessarily from a breach of contract, or that are a natural result of a breach.
Because general damages are a natural and necessary consequence of a contract
breach, they are often said to be within the contemplation of the parties,
meaning that because their occurrence is sufficiently predictable the parties at
the time of contracting are ‘deemed’ to have contemplated them.” (Lewis Jorge
Construction Management, Inc., supra, 34 Cal.4th at p. 968, internal citations
omitted.)
• “ ‘Contract damages are generally limited to those within the contemplation of
the parties when the contract was entered into or at least reasonably foreseeable
by them at that time; consequential damages beyond the expectation of the
parties are not recoverable. This limitation on available damages serves to
encourage contractual relations and commercial activity by enabling parties to
estimate in advance the financial risks of their enterprise.’ ‘In contrast, tort
damages are awarded to [fully] compensate the victim for [all] injury
suffered.’ ” (Erlich v. Menezes (1999) 21 Cal.4th 543, 550 [87 Cal.Rptr.2d 886,
981 P.2d 978], internal citations omitted.)
• [I]f special circumstances caused some unusual injury, special damages are not
recoverable therefor unless the circumstances were known or should have been
known to the breaching party at the time he entered into the contract.’ ” (Resort
Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1697 [42
Cal.Rptr.2d 136], internal citations omitted.)
• “The detriment that is ‘likely to result therefrom’ is that which is foreseeable to
the breaching party at the time the contract is entered into.” (Wallis v. Farmers
Group, Inc. (1990) 220 Cal.App.3d 718, 737 [269 Cal.Rptr. 299], internal
citation omitted.)
• “Where the fact of damages is certain, as here, the amount of damages need not
be calculated with absolute certainty. The law requires only that some
159
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.20 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.03 et seq.
161
• “When reference is made to the terms of the contract alone, there is ordinarily
little difficulty in determining what damages arise from its breach in the usual
course of things, and the parties will be presumed to have contemplated such
damages only. But where it is claimed the circumstances show that a special
purpose was intended to be accomplished by one of the parties (a failure to
accomplish which by means of the contract would cause him greater damage
than would ordinarily follow from a breach by the other party), and such
purpose was known to the other party, the facts showing the special purpose
and the knowledge of the other party must be averred. This rule has frequently
been applied to the breach of a contract for the sale of goods to be delivered at
a certain time. In such cases the general rule of damages is fixed by reference
to the market value of the goods at the time they were to have been delivered,
because in the usual course of events the purchaser could have supplied himself
with like commodities at the market price. And if special circumstances existed
entitling the purchaser to greater damages for the defeat of a special purpose
known to the contracting parties (as, for example, if the purchaser had already
contracted to furnish the goods at a profit, and they could not be obtained in the
market), such circumstances must be stated in the declaration with the facts
which, under the circumstances, enhanced the injury.” (Mitchell v. Clarke
(1886) 71 Cal. 163, 164–165 [11 P. 882], internal citation omitted.)
• “[I]f special circumstances caused some unusual injury, special damages are not
recoverable therefor unless the circumstances were known or should have been
known to the breaching party at the time he entered into the contract. The
requirement of knowledge or notice as a prerequisite to the recovery of special
damages is based on the theory that a party does not and cannot assume
limitless responsibility for all consequences of a breach, and that at the time of
contracting he must be advised of the facts concerning special harm which
might result therefrom, in order that he may determine whether or not to accept
the risk of contracting.” (Brandon & Tibbs v. George Kevorkian Accountancy
Corp. (1990) 226 Cal.App.3d 442, 455 [277 Cal.Rptr. 40], internal citations
omitted.)
• “Contract damages must be clearly ascertainable in both nature and origin. A
contracting party cannot be required to assume limitless responsibility for all
consequences of a breach and must be advised of any special harm that might
result in order to determine whether or not to accept the risk of contracting.”
(Erlich v. Menezes (1999) 21 Cal.4th 543, 560 [87 Cal.Rptr.2d 886, 981 P.2d
978], internal citations omitted.)
• “ ‘[F]oreseeability is to be determined as of the time of the making of the
contract’; ‘what must be foreseeable is only that the loss would result if the
breach occurred’; ‘it is foreseeability only by the party in breach that is
determinative’; ‘foreseeability has an objective character’; and ‘the loss need
only have been foreseeable as a probable, as opposed to a necessary or certain,
result of the breach.’ ” (Ash, supra, 223 Cal.App.4th at p. 1270.)
163
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 871
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.13
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.61 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[6], 7.08[3]
164
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/it] would have earned profits but for [name
of defendant]’s breach of the contract.
To decide the amount of damages for lost profits, you must determine
the gross, or total, amount [name of plaintiff] would have received if the
contract had been performed and then subtract from that amount the
costs [including the value of the [labor/materials/rents/expenses/interest
on loans invested in the business]] [name of plaintiff] would have had if
the contract had been performed.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
167
To recover damages for lost profits, [name of plaintiff] must prove that it
is reasonably certain [he/she/it] would have earned more profits but for
[name of defendant]’s breach of the contract.
To decide the amount of damages for lost profits, you must:
1. First, calculate [name of plaintiff]’s estimated total profit by
determining the gross amount [he/she/it] would have received if
the contract had been performed, and then subtracting from that
amount the costs [including the value of the [labor/materials/
rents/expenses/interest on loans invested in the business]] [name
of plaintiff] would have had if the contract had been performed;
2. Next, calculate [name of plaintiff]’s actual profit by determining
the gross amount [he/she/it] actually received, and then
subtracting from that amount [name of plaintiff]’s actual costs
[including the value of the
[labor/materials/rents/expenses/interest on loans invested in the
business]]; and
3. Then, subtract [name of plaintiff]’s actual profit, which you
determined in the second step, from [his/her/its] estimated total
profit, which you determined in the first step. The resulting
amount is [name of plaintiff]’s lost profit.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
and their extent, albeit not with ‘mathematical precision.’ ” (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773−774 [149
Cal.Rptr.3d 614, 288 P.3d 1237].)
• “Where the fact of damages is certain, the amount of damages need not be
calculated with absolute certainty. The law requires only that some reasonable
basis of computation of damages be used, and the damages may be computed
even if the result reached is an approximation. This is especially true where, as
here, it is the wrongful acts of the defendant that have created the difficulty in
proving the amount of loss of profits or where it is the wrongful acts of the
defendant that have caused the other party to not realize a profit to which that
party is entitled.” (GHK Associates v. Mayer Group (1990) 224 Cal.App.3d 856,
873–874 [274 Cal.Rptr. 168], internal citations omitted.)
• “Historical data, such as past business volume, supply an acceptable basis for
ascertaining lost future profits. [Citations.] In some instances, lost profits may
be recovered where plaintiff introduces evidence of the profits lost by similar
businesses operating under similar conditions. [Citations.]” (Sargon Enterprises,
Inc., supra, 55 Cal.4th at p. 774].)
• “Regarding lost business profits, the cases have generally distinguished between
established and unestablished businesses. ‘[W]here the operation of an
established business is prevented or interrupted, as by a . . . breach of
contract . . . , damages for the loss of prospective profits that otherwise might
have been made from its operation are generally recoverable for the reason that
their occurrence and extent may be ascertained with reasonable certainty from
the past volume of business and other provable data relevant to the probable
future sales.’ ” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “ ‘On the other hand, where the operation of an unestablished business is
prevented or interrupted, damages for prospective profits that might otherwise
have been made from its operation are not recoverable for the reason that their
occurrence is uncertain, contingent and speculative. [Citations.] . . . But
although generally objectionable for the reason that their estimation is
conjectural and speculative, anticipated profits dependent upon future events are
allowed where their nature and occurrence can be shown by evidence of
reasonable reliability.” (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 774.)
• “Unestablished businesses have been permitted to claim lost profit damages in
situations where owners have experience in the business they are seeking to
establish, and where the business is in an established market.” (Resort Video,
Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1698–1699 [42
Cal.Rptr.2d 136], internal citations omitted.)
• “Even if [plaintiff] was able to provide credible evidence of lost profits, it must
be remembered that ‘[w]hen loss of anticipated profits is an element of
damages, it means net and not gross profits.’ Net profits are the gains made
from sales ‘after deducting the value of the labor, materials, rents, and all
expenses, together with the interest of the capital employed.’ ” (Resort Video,
169
170
172
173
bargain damages’ measured by the difference between the contract price and the
fair market value on the date of the breach.” (Reese v. Wong (2001) 93
Cal.App.4th 51, 56 [112 Cal.Rptr.2d 669], internal citation omitted.)
• “It is settled that when a seller of real property fails or refuses to convey, a
buyer who has made advance payments toward the purchase price may recover
interest on those payments as damages for breach of contract. This rule is not
limited to sales of real property; it applies to sales in general.” (Al-Husry v.
Nilsen Farms Mini-Market, Inc. (1994) 25 Cal.App.4th 641, 648 [31
Cal.Rptr.2d 28], internal citations omitted.)
• Section 3306 does not ordinarily apply to breach of an unexercised option to
buy property. (Schmidt v. Beckelman (1960) 187 Cal.App.2d 462, 470–471 [9
Cal.Rptr. 736].)
• “ ‘Generally, [consequential] damages are those which, in view of all facts
known by the parties at the time of the making of the contract, may reasonably
be supposed to have been considered as a likely consequence of a breach in the
ordinary course of events. This provision would conform the measure of
damages in real property conveyance breaches to the general contract measure
of damages which is specified in Civil Code 3300: “. . . all the detriment
proximately caused (by the breach), or which, in the ordinary course of things,
would be likely to result therefrom.” ’ ” (Stevens Group Fund IV v. Sobrato
Development Co. (1991) 1 Cal.App.4th 886, 892 [2 Cal.Rptr.2d 460], quoting
the Assembly Committee on Judiciary.)
• “Moreover, in none of the foregoing cases does it appear that the buyer
demonstrated the existence of the other requisites for an award of consequential
or special damages, i.e., that the seller knew of the buyer’s purpose in
purchasing the property and that the anticipated profits were proved with
reasonable certainty as to their occurrence and amount.” (Greenwich S.F., LLC,
supra, 190 Cal.App.4th at p. 757.)
• “The plain language of section 3306, adding consequential damages to the
general damages and other specified damages recoverable for breach of a
contract to convey real property, the legislative history of the 1983 amendment
acknowledging that the addition of consequential damages would conform the
measure of damages to the general contract measure of damages, and the
generally accepted inclusion of lost profits as a component of consequential or
special damages in other breach of contract contexts and by other states in the
context of breach of contracts to convey real property, taken together, persuade
us that lost profits may be awarded as part of consequential damages under
section 3306 upon a proper showing.” (Greenwich S.F., LLC, supra, 190
Cal.App.4th at p. 758, internal citations omitted.)
• “Rents received from the lease of the property in this case are not properly an
item of consequential damages. Here, plaintiff introduced evidence as to the fair
market value of the property which included these profits. To allow these as
consequential damages under these circumstances would have permitted a
175
double recovery for plaintiff.” (Stevens Group Fund IV, supra, 1 Cal.App.4th at
p. 892.)
• “[T]he phrase ‘to enter upon the land’ refers to the taking of possession rather
than the use of the property.” (Schellinger Brothers v. Cotter (2016) 2
Cal.App.5th 984, 1011 [207 Cal.Rptr.3d 82].)
• “We think the phrase ‘and interest’ should continue to be read as referring to
the generally applicable provisions of [Civil Code] section 3287 regarding
prejudgment interest. As amended in 1967, subdivision (a) of section 3287
establishes a right to recover prejudgment interest on damages ‘capable of being
made certain by calculation’ and subdivision (b) gives the court general
discretionary authority to award prejudgment interest where damages are ‘based
upon a cause of action in contract . . ..’ The discretionary authority conferred
by subdivision (b) will ordinarily apply to loss-of-bargain damages measured by
the contract price/market value differential.” (Rifkin v. Achermann (1996) 43
Cal.App.4th 391, 397 [50 Cal.Rptr.2d 661].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 898–900
California Real Property Remedies Practice (Cont.Ed.Bar 1980; 1999 supp.) Breach
of Seller-Buyer Agreements, §§ 4.11–4.14
Greenwald & Asimow, California Practice Guide: Real Property Transactions, Ch.
11-D, Buyer’s Remedies Upon Seller’s Breach—Damages And Specific
Performance, ¶ 11:184 (The Rutter Group)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser,
§ 569.22 (Matthew Bender)
9 California Legal Forms, Ch. 23, Real Property Sales Agreements, § 23.12 et seq.
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.04[7][f]
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.37, 8.58
176
diligently attempted resale after the buyer has breached the contract.” (Askari v.
R & R Land Co. (1986) 179 Cal.App.3d 1101, 1107 [225 Cal.Rptr. 285],
internal citation omitted.)
• “[I]f the property increases in value before trial and the vendor resells the
property at a price higher than the value of the contract, there are no longer any
loss of bargain damages.” (Spurgeon v. Drumheller (1985) 174 Cal.App.3d 659,
664 [220 Cal.Rptr. 195].)
• “The same rule of no loss of bargain damages to the vendor applies where the
resale is for the same price as the contract price.” (Spurgeon, supra, 174
Cal.App.3d at p. 664, internal citations omitted.)
• “For the reason that no loss of bargain damages are available to a seller if there
is a resale at the same or a higher price than the contract price, the law imposes
on the seller of the property the duty to exercise diligence and to make a resale
within the shortest time possible. In discussing the duty to mitigate where the
vendee seeks return of a deposit, the Sutter court states the requirement that
resales be made with reasonable diligence ‘states a policy applicable to resales
of real property. Whether the resale is made one, two or three months later, or
whether it be a year or more, it should be made with reasonable diligence to
qualify the vendor to an allowance of an off-set against the vendee’s claim for
restitution of money paid.’ ” (Spurgeon, supra, 174 Cal.App.3d at p. 665,
internal citations omitted.)
• “Although it is well settled in the foregoing authorities that damages under
Civil Code section 3307 for the difference between the contract price and
property value may be insufficient to give the vendor the benefit of his bargain
and he is entitled also to resale expenses and some costs of continued
ownership, he should not be permitted to receive a windfall at the purchaser’s
expense.” (Smith v. Mady (1983) 146 Cal.App.3d 129, 133 [194 Cal.Rptr. 42].)
• “Inasmuch as under Abrams and Sutter the vendor has an obligation to resell
promptly in order to obtain consequential damages and the resale price may fix
the property value as a basis for Civil Code section 3307 damages, we are
impelled to conclude that there is no inherent separateness in the original sale
and subsequent resale transactions. The increased resale price should not be
disregarded in considering an offset to consequential damages awarded to a
vendor against a defaulting purchaser of real property.” (Smith, supra, 146
Cal.App.3d at p. 133.)
• “The owner of real or personal property may competently testify to its value.”
(Newhart, supra, 254 Cal.App.2d at p. 789, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 901–906
California Real Property Remedies Practice (Cont.Ed.Bar 1980; 1999 supp.),
Breach of Seller-Buyer Agreements, §§ 4.37–4.43
California Practice Guide: Real Property Transactions (The Rutter Group 2000),
178
179
expense. However, the injured party is not precluded from recovery to the
extent that he has made reasonable but unsuccessful efforts to avoid loss.”
(Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226
Cal.App.3d 442, 460 [277 Cal.Rptr. 40], internal citations omitted.)
• “The burden of proving that losses could have been avoided by reasonable
effort and expense must always be borne by the party who has broken the
contract. Inasmuch as the law denies recovery for losses that can be avoided by
reasonable effort and expense, justice requires that the risks incident to such
effort should be carried by the party whose wrongful conduct makes them
necessary. Therefore, special losses that a party incurs in a reasonable effort to
avoid losses resulting from a breach are recoverable as damages.” (Brandon &
Tibbs, supra, 226 Cal.App.3d at pp. 460–461, internal citations omitted.)
Secondary Sources
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.56
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.77
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, §§ 65.103, 65.121
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.12[6][b], 7.15[4]
181
To recover for future harm, [name of plaintiff] must prove that the harm
is reasonably certain to occur and must prove the amount of those
future damages. The amount of damages for future harm must be
reduced to present cash value. This is necessary because money received
now will, through investment, grow to a larger amount in the future.
[Name of defendant] must prove the amount by which future damages
should be reduced to present value.
To find present cash value, you must determine the amount of money
that, if reasonably invested today, will provide [name of plaintiff] with
the amount of [his/her/its] future damages.
[You may consider expert testimony in determining the present cash
value of future damages.] [You must use [the interest rate of
percent/ [and] [specify other stipulated information]] agreed to by the
parties in determining the present cash value of future damages.]
• “If the breach is partial only, the injured party may recover damages for non-
performance only to the time of trial and may not recover damages for
anticipated future non-performance. Furthermore, even if a breach is total, the
injured party may treat it as partial, unless the wrongdoer has repudiated the
contract. The circumstances of each case determine whether an injured party
may treat a breach of contract as total.” (Coughlin, supra, 41 Cal.2d at pp.
598–599, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1552
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.09[3]
183
If you decide that [name of defendant] breached the contract but also
that [name of plaintiff] was not harmed by the breach, you may still
award [him/her/it] nominal damages such as one dollar.
184
the amount he or she expended in reliance on the contract. The burden then
shifts to the defendant to show (1) the amount of plaintiff’s expenses that were
unnecessary and/or (2) how much the plaintiff would have lost had the
defendant fully performed (i.e., absent the breach). The plaintiff’s recovery must
be reduced by those amounts.” (Agam, supra, 236 Cal.App.4th at p. 107,
internal citation omitted.)
• “Concerning reliance damages, Restatement [Second of Contracts] section 349
provides as follows: ‘As an alternative to the measure of damages stated in
[Restatement section] 347, the injured party has a right to damages based on his
reliance interest, including expenditures made in preparation for performance or
in performance, less any loss that the party in breach can prove with
reasonable certainty the injured party would have suffered had the contract
been performed.’ ” (US Ecology, Inc. v. State of California (2005) 129
Cal.App.4th 887, 907 [28 Cal.Rptr.3d 894], original italics.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2010) Contracts, § 869 et seq.
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.79
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.21 et seq.
(Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.15
362–369. Reserved for Future Use
186
defendant received money ‘intended to be used for the benefit of [the plaintiff],’
that the money was not used for the plaintiff’s benefit, and that the defendant
has not given the money to the plaintiff.” (Avidor v. Sutter’s Place, Inc. (2013)
212 Cal.App.4th 1439, 1454 [151 Cal.Rptr.3d 804], internal citations omitted.)
• “ ‘The action for money had and received is based upon an implied promise
which the law creates to restore money which the defendant in equity and good
conscience should not retain. The law implies the promise from the receipt of
the money to prevent unjust enrichment. The measure of the liability is the
amount received.’ Recovery is denied in such cases unless the defendant himself
has actually received the money.” (Rotea v. Izuel (1939) 14 Cal.2d 605, 611 [95
P.2d 927], internal citations omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief
is something in the nature of a constructive trust and . . . ‘one cannot be held
to be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘This kind of action to recover back money which ought not in justice to be
kept is very beneficial, and, therefore, much encouraged. It lies for money paid
by mistake, or upon a consideration which happens to fail, or extortion, or
oppression, or an undue advantage of the plaintiff’s situation contrary to the
laws made for the protection of persons under those circumstances.’ ” (Minor v.
Baldridge (1898) 123 Cal. 187, 191 [55 P. 783], internal citation omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
188
189
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “To recover on a claim for the reasonable value of services under a quantum
meruit theory, a plaintiff must establish both that he or she was acting pursuant
to either an express or implied request for services from the defendant and that
the services rendered were intended to and did benefit the defendant.” (Ochs v.
PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [9 Cal.Rptr.3d 734],
internal citation omitted.)
• “[W]here services have been rendered under a contract which is unenforceable
because not in writing, an action generally will lie upon a common count for
quantum meruit.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76
Cal.App.4th 990, 996 [90 Cal.Rptr.2d 665].)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned. . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
191
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515
12 California Forms of Pleading and Practice, Ch. 121, Common Counts,
§§ 121.25, 121.55–121.58 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, §§ 44.33, 44.40 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
192
a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d
155], internal citations omitted.)
• “A book account may furnish the basis for an action on a common count
‘ “. . . when it contains a statement of the debits and credits of the transactions
involved completely enough to supply evidence from which it can be
reasonably determined what amount is due to the claimant.” ’ A book account is
described as ‘open’ when the debtor has made some payment on the account,
leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens,
Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal
citations and footnote omitted.)
• “[T]he most important characteristic of a suit brought to recover a sum owing
on a book account is that the amount owed is determined by computing all of
the credits and debits entered in the book account.” (Interstate Group
Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)
• “It is apparent that the mere entry of dates and payments of certain sums in the
credit column of a ledger or cash book under the name of a particular
individual, without further explanation regarding the transaction to which they
apply, may not be deemed to constitute a ‘book account’ upon which an action
in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671,
679 [107 P.2d 434].)
• “The law does not prescribe any standard of bookkeeping practice which all
must follow, regardless of the nature of the business of which the record is
kept. We think it makes no difference whether the account is kept in one book
or several so long as they are permanent records, and constitute a system of
bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop
(1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim. . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned . . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
194
is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief
is something in the nature of a constructive trust and . . . ‘one cannot be held
to be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.20, 8.47 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, § 43.28 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
195
• “To be an account stated, ‘it must appear that at the time of the statement an
indebtedness from one party to the other existed, that a balance was then struck
and agreed to be the correct sum owing from the debtor to the creditor, and that
the debtor expressly or impliedly promised to pay to the creditor the amount
thus determined to be owing.’ The agreement necessary to establish an account
stated need not be express and is frequently implied from the circumstances.
When a statement is rendered to a debtor and no reply is made in a reasonable
time, the law implies an agreement that the account is correct as rendered.
Actions on accounts stated frequently arise from a series of transactions which
also constitute an open book account. However, an account stated may be found
in a variety of commercial situations. The acknowledgement of a debt
consisting of a single item may form the basis of a stated account. The key
element in every context is agreement on the final balance due.” (Maggio, Inc.
v. Neal (1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr. 883], internal
citations omitted.)
• “An account stated need not be submitted by the creditor to the debtor. A
statement expressing the debtor’s assent and acknowledging the agreed amount
of the debt to the creditor equally establishes an account stated.” (Truestone,
Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209
Cal.Rptr. 757], internal citations omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “The account stated may be attacked only by proof of ‘fraud, duress, mistake,
or other grounds cognizable in equity for the avoidance of an instrument.’ The
defendant ‘will not be heard to answer when action is brought upon the account
stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103
Cal.App.3d at p. 787, internal citations omitted.)
• “An account stated need not cover all the dealings or claims between the
parties. There may be a partial settlement and account stated as to some of the
transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation
omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
197
198
does not obtain what he expected in return is entitled to restitution from the
other if the mistake was induced:
(a) by the fraud of the payee, or
(b) by his innocent and material misrepresentation, or
(c) by the fraud or material misrepresentation of a person purporting
to act as the payee’s agent, or
(d) by the fraud or material misrepresentation of a third person,
provided that the payee has notice of the fraud or representation
before he has given or promised something of value.
• “Money paid upon a mistake of fact may be recovered under the common count
of money had and received. The plaintiff, however negligent he may have been,
may recover if his conduct has not altered the position of the defendant to his
detriment.” (Thresher v. Lopez (1921) 52 Cal.App. 219, 220 [198 P. 419],
internal citations omitted.)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned. . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
200
201
[Name of plaintiff] claims that the parties entered into a valid contract in
which [some of] the required terms were supplied by [specify electronic
means, e.g., e-mail messages]. If the parties agree, they may form a
binding contract using an electronic record. An “electronic record” is
one created, generated, sent, communicated, received, or stored by
electronic means. [E.g., E-Mail] is an electronic record.
[Name of plaintiff] must prove, based on the context and surrounding
circumstances, including the conduct of the parties, that the parties
agreed to use [e.g., e-mail] to formalize their agreement.
[[Name of plaintiff] must have sent the contract documents to [name of
defendant] in an electronic record capable of retention by [name of
defendant] at the time of receipt. An electronic record is not capable of
retention by the recipient if the sender or its information processing
system limits or prohibits the ability of the recipient to print or store it.]
executed or adopted by a person with the intent to sign the electronic record. (Civ.
Code, § 1633.2(h); see Gov. Code, § 16.5(d) (digital signature).) The validity of an
electronic signature under this definition would most likely be a question of law for
the court. If there is an issue of fact with regard to the parties’ intent to use
electronic signatures, this instruction will need to be modified accordingly.
Sources and Authority
• “Electronic Record” Defined Under UETA. Civil Code section 1633.2(g).
• “Electronic Signature” Defined Under UETA. Civil Code section 1633.2(h).
• Exclusions Under UETA. Civil Code section 1633.3(b).
• Agreement to Conduct Transaction by Electronic Means. Civil Code section
1633.5(b).
• Enforceability of Electronic Transactions. Civil Code section 1633.7.
• Providing Required Information by Electronic Means. Civil Code section
1633.8(a).
• Attributing Electronic Record or Signature to Person. Civil Code section
1633.9.
• “ ‘Whether the parties agree to conduct a transaction by electronic means is
determined from the context and surrounding circumstances, including the
parties’ conduct. . . . ‘The absence of an explicit agreement to conduct the
transaction by electronic means is not determinative; however, it is a relevant
factor to consider.” (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232
Cal.App.4th 974, 989 [182 Cal.Rptr.3d 154].)
• “Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform
Electronic Transactions Act, an electronic signature has the same legal effect as
a handwritten signature.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232
Cal.App.4th 836, 843 [181 Cal.Rptr.3d 781], internal citations omitted.)
• “Civil Code section 1633.9 addresses how a proponent of an electronic
signature may authenticate the signature—that is, show the signature is, in fact,
the signature of the person the proponent claims it is.” (Ruiz, supra, 232
Cal.App.4th at p. 843.)
• “We agree that a printed name or some other symbol might, under specific
circumstances, be a signature under UETA . . . .” (J.B.B. Investment Partners,
Ltd., supra, 232 Cal.App.4th at p. 988.)
• “The trial court’s analysis was incomplete. Attributing the name on an e-mail to
a particular person and determining that the printed name is ‘[t]he act of [this]
person’ is a necessary prerequisite but is insufficient, by itself, to establish that
it is an ‘electronic signature.’ . . . UETA defines the term ‘electronic signature.’
Subdivision (h) of section 1633.2 states that ‘ “[e]lectronic signature” means an
electronic sound, symbol, or process attached to or logically associated with an
electronic record and executed or adopted by a person with the intent to sign
203
the electronic record.’ (Italics added; see CACI No. 380 [party suing to enforce
an agreement formalized by electronic means must prove ‘based on the context
and surrounding circumstances, including the conduct of the parties, that the
parties agreed to use [e.g., e-mail] to formalize their agreement . . .]’ ” (J.B.B.
Investment partners, supra, 232 Cal.App.4th at pp. 988–989, original italics.)
• “In the face of [plaintiff]’s failure to recall electronically signing the 2011
agreement, the fact the 2011 agreement had an electronic signature on it in the
name of [plaintiff], and a date and time stamp for the signature, was insufficient
to support a finding that the electronic signature was, in fact, ‘the act of’
[plaintiff].” (Ruiz, supra, 232 Cal.App.4th at p. 844.)
• “[W]hether [defendant]’s printed name constituted an ‘electronic signature’
within the meaning of UETA or under the law of contract, are legal
issues . . . .” (J.B.B. Investment Partners, Ltd., supra, 232 Cal.App.4th at p.
984.)
Secondary Sources
7 Witkin, Summary of California Law (10th ed. 2005) Contracts § 11
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 15, Attacking
or Defending Existence of Contract—Failure to Comply With Applicable
Formalities, 15.32
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.26
(Matthew Bender)
27 California Legal Forms: Transaction Guide, Ch. 75, Formation of Contracts and
Standard Contractual Provisions, § 75.17 (Matthew Bender)
381–399. Reserved for Future Use
204
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2004; Revised December 2010, June 2011, June 2013, June 2015
Directions for Use
This verdict form is based on CACI No. 303, Breach of Contract—Essential
Factual Elements. This form is intended for use in most contract disputes. If more
specificity is desired, see verdict forms that follow.
206
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Optional questions 2 and 3 address acts that the plaintiff must have performed
before the defendant’s duty to perform is triggered. Include question 2 if the court
has determined that the contract included dependent covenants, such that the failure
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 3 if the plaintiff claims that he or she was
excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence.
(DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].)
Note that questions 4 and 5 address conditions precedent, not the defendant’s
nonperformance after the conditions have all occurred or been excused. The
defendant’s nonperformance is the first option for question 6. If the defendant
alleges that its nonperformance was excused or waived by the plaintiff, an
additional question on excuse or waiver should be included after question 6.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
207
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
need to be modified depending on the facts of the case. This form is not a stand-
alone verdict form. It may be incorporated into VF-300, Breach of Contract, if the
elements of the affirmative defense are at issue.
This verdict form is based on CACI No. 330, Affırmative Defense—Unilateral
Mistake of Fact. The verdict forms do not address all available affirmative
defenses. The parties may need to create their own verdict forms to fit the issues
involved in the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
209
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
211
213
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
215
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
of the plaintiff to perform some obligation would relieve the defendant of the
obligation to perform. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–279
[120 Cal.Rptr.3d 893].) Include question 3 if the plaintiff claims that he or she was
excused from having to perform an otherwise required obligation.
Optional questions 4 and 5 address conditions precedent to the defendant’s
performance. Include question 4 if the occurrence of conditions for performance is
at issue. (See CACI No. 322, Occurrence of Agreed Condition Precedent.) Include
question 5 if the plaintiff alleges that conditions that did not occur were excused.
The most common form of excuse is the defendant’s waiver. (See CACI No. 323,
Waiver of Condition Precedent; see also Restatement Second of Contracts, section
225, Comment b.) Waiver must be proved by clear and convincing evidence.
(DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal.App.4th 54, 60 [35 Cal.Rptr.2d 515].) Note that questions 4 and 5 address
conditions precedent, not the defendant’s nonperformance after the conditions have
all occurred or been excused.
If the verdict form used combines other causes of action involving both economic
and noneconomic damages, use “economic” in question 8.
If specificity is not required, users do not have to itemize the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories. If counts for both breach of express
contractual terms and breach of the implied covenant are alleged, this verdict form
may be combined with CACI No. VF-300, Breach of Contract. Use VF-3920 to
direct the jury to separately address the damages awarded on each count and to
avoid the jury’s awarding the same damages on both counts. (See Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [272
Cal.Rptr. 387].)
VF-305–VF-399. Reserved for Future Use
218
221
New September 2003; Revised February 2005, June 2005, December 2007,
December 2011
Directions for Use
In medical malpractice or professional negligence cases, the word “medical” or
“professional” should be added before the word “negligence” in the first paragraph.
The word “harm” is used throughout these instructions, instead of terms like “loss,”
“injury,” and “damage,” because “harm” is all-purpose and suffices in their place.
Sources and Authority
• General Duty to Exercise Due Care. Civil Code section 1714(a).
• “Although it is true that some exceptions have been made to the general
principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence of statutory
provision declaring an exception to the fundamental principle enunciated by
section 1714 of the Civil Code, no such exception should be made unless
clearly supported by public policy.” (Rowland v. Christian (1968) 69 Cal.2d
108, 112 [70 Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘The elements of a cause of action for negligence are well established. They
are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)
the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d
496].)
• “The first element, duty, ‘may be imposed by law, be assumed by the defendant,
or exist by virtue of a special relationship.’ ” (Doe v. United States Youth
Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128 [214 Cal.Rptr.3d 552].)
• “[T]he existence of a duty is a question of law for the court.” (Ky. Fried
Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819 [59 Cal.Rptr.2d
756, 927 P.2d 1260].)
• “In the Rowland [Rowland, supra, 69 Cal.2d at p. 113] decision, this court
222
224
225
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 867, 868
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.3
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.01, 1.02,
1.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.31 (Matthew
Bender)
226
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.121, 165.190
(Matthew Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors (Matthew
Bender)
228
229
230
232
New September 2003; Revised June 2006, December 2007, December 2009, June
2011
Directions for Use
This instruction is designed to assist the jury in completing CACI No. VF-402,
Negligence—Fault of Plaintiff and Others at Issue, which must be given in a
multiple-tortfeasor case to determine comparative fault. VF-402 is designed to
compare the conduct of all defendants, the conduct of the plaintiff, and the conduct
of any nonparty tortfeasors.
Throughout, select “fault” if there is a need to allocate responsibility between
tortfeasors whose alleged liability is based on conduct other than negligence, e.g.,
strict products liability.
Include the first paragraph if the defendant has presented evidence that the conduct
of one or more nonparties contributed to the plaintiff’s harm. (See Stewart v. Union
Carbide Corp. (2010) 190 Cal.App.4th 23, 33 [117 Cal.Rptr.3d 791] [defendant has
burden to establish concurrent or alternate causes].) “Nonparties” include the
universe of tortfeasors who are not present at trial, including defendants who
settled before trial and nonjoined alleged tortfeasors. (Dafonte v. Up-Right (1992) 2
233
Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140].) Include “also” if the
defendant concedes some degree of liability.
If the plaintiff’s comparative fault is also at issue, give CACI No. 405,
Comparative Fault of Plaintiff, in addition to this instruction.
Include the last paragraph if any of the defendants or others alleged to have
contributed to the plaintiff’s harm is not an individual.
Sources and Authority
• Proposition 51. Civil Code section 1431.2.
• “[W]e hold that after Li, a concurrent tortfeasor whose negligence is a
proximate cause of an indivisible injury remains liable for the total amount of
damages, diminished only ‘in proportion to the amount of negligence
attributable to the person recovering.’ ” (American Motorcycle Assn. v. Superior
Court (1978) 20 Cal.3d 578, 590 [146 Cal.Rptr. 182, 578 P.2d 899], citing Li v.
Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226].)
• “In light of Li, however, we think that the long-recognized common law
equitable indemnity doctrine should be modified to permit, in appropriate cases,
a right of partial indemnity, under which liability among multiple tortfeasors
may be apportioned on a comparative negligence basis. . . . Such a doctrine
conforms to Li’s objective of establishing ‘a system under which liability for
damage will be borne by those whose negligence caused it in direct proportion
to their respective fault.’ ” (American Motorcycle Assn., supra, 20 Cal.3d at p.
583.)
• “The comparative fault doctrine ‘is designed to permit the trier of fact to
consider all relevant criteria in apportioning liability. The doctrine “is a flexible,
commonsense concept, under which a jury properly may consider and evaluate
the relative responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or other theories
of responsibility), in order to arrive at an ‘equitable apportionment or allocation
of loss.’ ” [Citation.]’ ” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th
1270, 1285 [164 Cal.Rptr.3d 112].)
• “[A] ‘defendant[’s]’ liability for noneconomic damages cannot exceed his or her
proportionate share of fault as compared with all fault responsible for the
plaintiff’s injuries, not merely that of ‘defendant[s]’ present in the lawsuit.”
(Dafonte, supra, 2 Cal.4th at p. 603, original italics.)
• “The proposition that a jury may apportion liability to a nonparty has been
adopted in the Judicial Council of California Civil Jury Instructions (CACI)
special verdict form applicable to negligence cases. (See CACI Verdict Form
402 and CACI Instruction No. 406 [‘[Verdict Form] 402 is designed to compare
the conduct of all defendants, the conduct of the plaintiff, and the conduct of
any nonparty tortfeasors. [¶] . . . [¶] . . . “Nonparties” include the universe of
tortfeasors who are not present at trial, including defendants who settled before
trial and nonjoined alleged tortfeasors.’].” (Vollaro v. Lispi (2014) 224
234
Cal.App.4th 93, 100 fn. 5 [168 Cal.Rptr.3d 323], internal citation omitted.)
• “[U]nder Proposition 51, fault will be allocated to an entity that is immune
from paying for its tortious acts, but will not be allocated to an entity that is not
a tortfeasor, that is, one whose actions have been declared not to be tortious.”
(Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, 1071 [6 Cal.Rptr.3d
695], original italics.)
• “A defendant bears the burden of proving affirmative defenses and indemnity
cross-claims. Apportionment of noneconomic damages is a form of equitable
indemnity in which a defendant may reduce his or her damages by establishing
others are also at fault for the plaintiff’s injuries. Placing the burden on
defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly
onerous.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369 [129 Cal.Rptr.2d
336].)
• “[T]here must be substantial evidence that a nonparty is at fault before damages
can be apportioned to that nonparty.” (Scott v. C. R. Bard, Inc. (2014) 231
Cal.App.4th 763, 785 [180 Cal.Rptr.3d 479].)
• “When a defendant is liable only by reason of a derivative nondelegable duty
arising from his status as employer or landlord or vehicle owner or
coconspirator, or from his role in the chain of distribution of a single product in
a products liability action, his liability is secondary (vicarious) to that of the
actor and he is not entitled to the benefits of Proposition 51.” (Bayer-Bel v.
Litovsky (2008) 159 Cal.App.4th 396, 400 [71 Cal.Rptr.3d 518], original italics,
internal citations omitted.)
• “Under the doctrine of strict products liability, all defendants in the chain of
distribution are jointly and severally liable, meaning that each defendant can be
held liable to the plaintiff for all damages the defective product caused.”
(Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1010 [169
Cal.Rptr.3d 208].)
• Proposition 51 does not apply in a strict products liability action when a single
defective product produced a single injury to the plaintiff. That is, all the
defendants in the stream of commerce of that single product remain jointly and
severally liable. . . . [I]n strict products liability asbestos exposure actions, . . .
Proposition 51 applies when there are multiple products that caused the
plaintiff’s injuries and there is evidence that provides a basis to allocate fault for
noneconomic damages between the defective products.” (Romine, supra, 224
Cal.App.4th at pp. 1011–1012, internal citations omitted.)
• “[T]he jury found that defendants are parties to a joint venture. The incidents of
a joint venture are in all important respects the same as those of a partnership.
One such incident of partnership is that all partners are jointly and severally
liable for partnership obligations, irrespective of their individual partnership
interests. Because joint and several liability arises from the partnership or joint
venture, Civil Code section 1431.2 is not applicable.” (Myrick v. Mastagni
(2010) 185 Cal.App.4th 1082, 1091 [111 Cal.Rptr.3d 165], internal citations
235
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 50, 52–56, 59, 60,
63, 64, 68
Haning et al., California Practice Guide: Personal Injury, Ch. 9-M, Verdicts And
Judgment, ¶ 9:662.3 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.52–1.59
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, §§ 4.04–4.03, 4.07–4.08 (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.03
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.91 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.14A, Ch. 9, Damages, § 9.01 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and
Contribution, § 300.61 (Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.04
et seq. (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.284, 165.380
(Matthew Bender)
236
237
Every person has a right to expect that every other person will use
reasonable care [and will not violate the law], unless he or she knows,
or should know, that the other person will not use reasonable care [or
will violate the law].
hazard or one of the hazards which makes the actor negligent, such an act
whether innocent, negligent, intentionally tortious, or criminal does not prevent
the actor from being liable for harm caused thereby.” (Bigbee v. Pacific
Telephone and Telegraph Co. (1983) 34 Cal.3d 49, 58 [192 Cal.Rptr. 857, 665
P.2d 947]; see also Rest.2d Torts, § 449.)
• “Foreseeability, when analyzed to determine the existence or scope of a duty, is
a question of law to be decided by the court.” (Ann M. v. Pacific Plaza
Shopping Center (1993) 6 Cal.4th 666, 678 [25 Cal.Rptr.2d 137, 863 P.2d 207],
disapproved on other grounds in Reid v. Google Inc. (2010) 50 Cal.4th 512, 527
fn. 5 [113 Cal.Rptr.3d 327, 235 P.3d 988].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1468–1470
1 Levy et al., California Torts, Ch. 1, Negligence, § 1.02 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, §§ 90.88, 90.90 (Matthew
Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.21
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.51
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.120 et seq.
(Matthew Bender)
239
240
242
People must be extremely careful when they deal with dangerous items
or participate in dangerous activities. [Insert type of dangerous item or
activity] is dangerous in and of itself. The risk of harm is so great that
the failure to use extreme caution is negligence.
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.14
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence (Matthew Bender)
244
encouraged to continue working under conditions where danger lurks but has
not materialized, he may be baffled in making an on-the-spot decision as to the
imminence of harm. All of these factors enter into a determination whether his
conduct falls below a standard of due care.” (Gyerman v. United States Lines
Co. (1972) 7 Cal.3d 488, 501 [102 Cal.Rptr. 795, 498 P.2d 1043], citation
omitted.)
Secondary Sources
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
246
247
negligence on the defendant’s part was not a proximate cause of the accident. In
this case, the presumption drops out, and the plaintiff must then prove the elements
of negligence without the benefit of the presumption of res ipsa loquitur. (See
Howe, supra, 189 Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res Ipsa Loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption
arises when the evidence satisfies three conditions: ‘(1) the accident must be of
a kind which ordinarily does not occur in the absence of someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive
control of the defendant; (3) it must not have been due to any voluntary action
or contribution on the part of the plaintiff.’ A presumption affecting the burden
of producing evidence ‘require[s] the trier of fact to assume the existence of the
presumed fact’ unless the defendant introduces evidence to the contrary. The
presumed fact, in this context, is that ‘a proximate cause of the occurrence was
some negligent conduct on the part of the defendant . . . .’ If the defendant
introduces ‘evidence which would support a finding that he was not negligent or
that any negligence on his part was not a proximate cause of the occurrence,’
the trier of fact determines whether defendant was negligent without regard to
the presumption, simply by weighing the evidence.” (Brown v. Poway Unified
School Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679, 843 P.2d 624],
internal citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was
the result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p.
1161, internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
negligence from the happening of the accident.” (Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
• “All of the cases hold, in effect, that it must appear, either as a matter of
common experience or from evidence in the case, that the accident is of a type
which probably would not happen unless someone was negligent.” (Zentz v.
Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442–443 [247 P.2d
344].)
• The purpose of the second “control” requirement is to “link the defendant with
249
the probability, already established, that the accident was negligently caused.”
(Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d
33].)
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintiff need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” (Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of
negligence or lack of proximate cause that the injury claimed was the result of
that negligence. As a presumption affecting the burden of producing evidence
(as distinguished from a presumption affecting the burden of proof), if evidence
is presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of
the accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of
the presumed fact causes the presumption, as a matter of law, to disappear.’
When the presumptive effect vanishes, it is the plaintiff’s burden to introduce
actual evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
jury may be instructed that, even though it does not find that the facts giving
rise to the presumption have been proved by a preponderance of the evidence, it
may nevertheless find the defendant negligent if it concludes from a
consideration of all the evidence that it is more probable than not that the
250
251
injury; (3) the injury resulted from the kind of occurrence the statute was
designed to prevent; and (4) the plaintiff was one of the class of persons the
statute was intended to protect. The first two elements are normally questions
for the trier of fact and the last two are determined by the trial court as a matter
of law. That is, the trial court decides whether a statute or regulation defines the
standard of care in a particular case.” (Jacobs Farm/Del Cabo, Inc. v. Western
Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526 [119 Cal.Rptr.3d 529],
internal citations omitted; see also Cal. Law Revision Com. to Evid. Code,
§ 669.)
• “Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to
prove duty of care and standard of care. [Citation.] The plaintiff still has the
burden of proving causation.” (David v. Hernandez (2014) 226 Cal.App.4th
578, 584 [172 Cal.Rptr.3d 204].)
• “Where a statute establishes a party’s duty, ‘ “proof of the [party’s] violation of
a statutory standard of conduct raises a presumption of negligence that may be
rebutted only by evidence establishing a justification or excuse for the statutory
violation.” This rule, generally known as the doctrine of negligence per se,
means that where the court has adopted the conduct prescribed by statute as the
standard of care for a reasonable person, a violation of the statute is presumed
to be negligence.” (Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263
[155 Cal.Rptr.3d 306], internal citation omitted.)
• “[I]n negligence per se actions, the plaintiff must produce evidence of a
violation of a statute and a substantial probability that the plaintiff’s injury was
caused by the violation of the statute before the burden of proof shifts to the
defendant to prove the violation of the statute did not cause the plaintiff’s
injury.” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371
[199 Cal.Rptr.3d 522].)
• “ ‘The significance of a statute in a civil suit for negligence lies in its
formulation of a standard of conduct that the court adopts in the determination
of such liability. The decision as to what the civil standard should be still rests
with the court, and the standard formulated by a legislative body in a police
regulation or criminal statute becomes the standard to determine civil liability
only because the court accepts it. In the absence of such a standard the case
goes to the jury, which must determine whether the defendant has acted as a
reasonably prudent man would act in similar circumstances. The jury then has
the burden of deciding not only what the facts are but what the unformulated
standard is of reasonable conduct. When a legislative body has generalized a
standard from the experience of the community and prohibits conduct that is
likely to cause harm, the court accepts the formulated standards and applies
them [citations], except where they would serve to impose liability without
fault.’ ” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 547 [25 Cal.Rptr.2d 97,
863 P.2d 167].), internal citations omitted.)
• “There is no doubt in this state that a federal statute or regulation may be
adopted as a standard of care.” (DiRosa v. Showa Denko K. K. (1996) 44
253
254
256
258
259
260
New September 2003; Revised December 2009, June 2014, December 2014
Directions for Use
Business and Professions Code section 25602.1 imposes potential liability on those
who have or are required to have a liquor license for the selling, furnishing, or
giving away of alcoholic beverages to an obviously intoxicated minor. It also
imposes potential liability on a person who is not required to be licensed who sells
alcohol to an obviously intoxicated minor. (See Ennabe v. Manosa (2014) 58
Cal.4th 697, 711 [168 Cal.Rptr.3d 440, 319 P.3d 201].) In this latter case, omit
element 1, select “sold” in the opening paragraph and in element 2, and select
“selling” in element 6.
If the plaintiff is the minor who is suing for his or her own injuries (see Chalup v.
Aspen Mine Co. (1985) 175 Cal.App.3d 973, 974 [221 Cal.Rptr. 97]), modify the
instruction by substituting the appropriate pronoun for “[name of alleged minor]”
throughout.
For purposes of this instruction, a “minor” is someone under the age of 21. (Rogers
v. Alvas (1984) 160 Cal.App.3d 997, 1004 [207 Cal.Rptr. 60].)
Sources and Authority
• Liability for Providing Alcohol to Minors. Business and Professions Code
section 25602.1.
• Sales Under the Alcoholic Beverage Control Act. Business and Professions
Code section 23025.
• “In sum, if a plaintiff can establish the defendant provided alcohol to an
obviously intoxicated minor, and that such action was the proximate cause of
the plaintiff’s injuries or death, section 25602.1—the applicable statute in this
case—permits liability in two circumstances: (1) the defendant was either
licensed to sell alcohol, required to be licensed, or federally authorized to sell
alcoholic beverages in certain places, and the defendant sold, furnished, or gave
the minor alcohol or caused alcohol to be sold, furnished, or given to the minor;
or (2) the defendant was ‘any other person’ (i.e., neither licensed nor required to
be licensed), and he or she sold alcohol to the minor or caused it to be sold.
Whereas licensees (and those required to be licensed) may be liable if they
merely furnish or give an alcoholic beverage away, a nonlicensee may be liable
only if a sale occurs; that is, a nonlicensee, such as a social host, who merely
furnishes or gives drinks away—even to an obviously intoxicated
minor—retains his or her statutory immunity.” (Ennabe, supra, 58 Cal.4th at pp.
709–710, original italics.)
• “[W]e conclude that the placement of section 25602.1 in the Business and
Professions Code does not limit the scope of that provision to commercial
enterprises. First, the structure of section 25602.1 suggests it applies to
noncommercial providers of alcohol. The statute addresses four categories of
persons and we assume those falling in the first three categories—those licensed
by the Department of ABC, those without licenses but who are nevertheless
261
263
may not be held liable for the breach of a duty if such an immunity in fact
exists.” (Washington, supra, 38 Cal.App.4th at p. 896, internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 245–248
5 Levy et al., California Torts, Ch. 60, General Principles of Liability and
Immunity of Public Entities and Employees, § 60.22 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.61 (Matthew Bender)
45 California Forms of Pleading and Practice, Ch. 514, Schools: Injuries to
Students, § 514.17 (Matthew Bender)
19 California Points and Authorities, Ch. 196, Public Entities, § 196.182 (Matthew
Bender)
266
267
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
269
courts, dissatisfied with a term so devoid of all real content, have interpreted it
as requiring wilful misconduct, or recklessness, or such utter lack of all care as
will be evidence of either—sometimes on the ground that this must have been
the purpose of the legislature. But most courts have considered that ‘gross
negligence’ falls short of a reckless disregard of consequences, and differs from
ordinary negligence only in degree, and not in kind. So far as it has any
accepted meaning, it is merely an extreme departure from the ordinary standard
of care.” ’ ” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358
[257 Cal.Rptr. 356], original italics, internal citations omitted.)
• “Generally it is a triable issue of fact whether there has been such a lack of
care as to constitute gross negligence [citation] but not always.” (Chavez v. 24
Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [189 Cal.Rptr.3d
449].)
• “The Legislature has enacted numerous statutes . . . which provide immunity to
persons providing emergency assistance except when there is gross negligence.
(See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good
faith renders emergency care at the scene of an emergency occurring outside the
place and course of nurse’s employment unless the nurse is grossly negligent];
Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves
on-call in a hospital emergency room who in good faith renders emergency
obstetrical services unless the physician was grossly negligent, reckless, or
committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for
licensed physician who in good faith and without compensation renders
voluntary emergency medical assistance to a participant in a community college
or high school athletic event for an injury suffered in the course of that event
unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706
[immunity for certified respiratory therapist who in good faith renders
emergency care at the scene of an emergency occurring outside the place and
course of employment unless the respiratory therapist was grossly negligent];
Bus. & Prof. Code, § 4840.6 [immunity for a registered animal health
technician who in good faith renders emergency animal health care at the scene
of an emergency unless the animal health technician was grossly negligent];
Civ. Code, § 1714.2 [immunity to a person who has completed a basic
cardiopulmonary resuscitation course for cardiopulmonary resuscitation and
emergency cardiac care who in good faith renders emergency cardiopulmonary
resuscitation at the scene of an emergency unless the individual was grossly
negligent]; Health & Saf. Code, § 1799.105 [immunity for poison control center
personnel who in good faith provide emergency information and advice unless
they are grossly negligent]; Health & Saf. Code, § 1799.106 [immunity for a
firefighter, police officer or other law enforcement officer who in good faith
renders emergency medical services at the scene of an emergency unless the
officer was grossly negligent]; Health & Saf. Code, § 1799.107 [immunity for
public entity and emergency rescue personnel acting in good faith within the
270
271
In most cases, “unfitness” or “incompetence” (or both) will adequately describe the
particular risk that the employee represents. However, there may be cases in which
neither word adequately describes the risk that the employer should have known
about.
Sources and Authority
• “California case law recognizes the theory that an employer can be liable to a
third person for negligently hiring, supervising, or retaining an unfit employee.”
(Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [58 Cal.Rptr.2d 122].)
• “Negligence liability will be imposed on an employer if it ‘knew or should have
known that hiring the employee created a particular risk or hazard and that
particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139 [91 Cal.Rptr.3d 864].)
• “[Plaintiff] brought several claims against [defendant employer], including
negligent hiring, supervising, and retaining [employee], and failure to warn. To
prevail on his negligent hiring/retention claim, [plaintiff] will be required to
prove [employee] was [defendant employer]’s agent and [defendant employer]
knew or had reason to believe [employee] was likely to engage in sexual abuse.
On the negligent supervision and failure to warn claims, [plaintiff] will be
required to show [defendant employer] knew or should have known of
[employee]’s alleged misconduct and did not act in a reasonable manner when it
allegedly recommended him to serve as [plaintiff]’s Bible instructor.” (Lopez v.
Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th
566, 591 [201 Cal.Rptr.3d 156], internal citations omitted.)
• “Liability for negligent supervision and/or retention of an employee is one of
direct liability for negligence, not vicarious liability.” (Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [52 Cal.Rptr.3d 376].)
• “Liability for negligent hiring and supervision is based upon the reasoning that
if an enterprise hires individuals with characteristics which might pose a danger
to customers or other employees, the enterprise should bear the loss caused by
the wrongdoing of its incompetent or unfit employees. The tort has developed
in California in factual settings where the plaintiff’s injury occurred in the
workplace, or the contact between the plaintiff and the employee was generated
by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66
Cal.App.4th 1333, 1339–1340 [78 Cal.Rptr.2d 525].)
• “To establish negligent supervision, a plaintiff must show that a person in a
supervisorial position over the actor had prior knowledge of the actor’s
propensity to do the bad act.” (Z.V. v. County of Riverside (2015) 238
Cal.App.4th 889, 902 [189 Cal.Rptr.3d 570].)
• “Apparently, [defendant] had no actual knowledge of [the employee]’s past. But
the evidence recounted above presents triable issues of material fact regarding
whether the [defendant] had reason to believe [the employee] was unfit or
whether the [defendant] failed to use reasonable care in investigating [the
273
• “[P]laintiff premises her direct negligence claim on the hospital’s alleged failure
to properly screen [doctor] before engaging her and to properly supervise her
after engaging her. Since hiring and supervising medical personnel, as well as
safeguarding incapacitated patients, are clearly within the scope of services for
which the hospital is licensed, its alleged failure to do so necessarily states a
claim for professional negligence. Accordingly, plaintiff cannot pursue a claim
of direct negligence against the hospital.” (So v. Shin (2013) 212 Cal.App.4th
652, 668 [151 Cal.Rptr.3d 257].)
• “[Asking] whether [defendant] hired [employee] was necessary given the
dispute over who hired [employee]—[defendant] or [decedent]. As the trial
court noted, ‘The employment was neither stipulated nor obvious on its face.’
However, if the trial court began the jury instructions or special verdict form
with, ‘Was [employee] unfit or incompetent to perform the work for which he
was hired,’ confusion was likely to result as the question assumed a hiring.
Therefore, the jury needed to answer the question of whether [defendant] hired
[employee] before it could determine if [defendant] negligently hired, retained,
or supervised him.” (Jackson, supra, 233 Cal.App.4th at pp. 1187–1188.)
• “Any claim alleging negligent hiring by an employer will be based in part on
events predating the employee’s tortious conduct. Plainly, that sequence of
events does not itself preclude liability.” (Liberty Surplus Ins. Corp., supra, 5
Cal.5th at p. 225, fn. 7.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1190
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-H,
Employment Torts and Related Claims—Negligence, ¶ 5:615 et seq. (The Rutter
Group)
3 California Torts, Ch. 40B, Employment Discrimination and Harassment, § 40B.21
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.12 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.22 (Matthew Bender)
275
277
New September 2003; Renumbered from CACI No. 410 December 2013
Directions for Use
This instruction is not intended for use for claims of statutory liability against
parents or guardians based on a minor’s willful conduct, e.g., Civil Code section
1714.1 (willful misconduct), section 1714.3 (discharging firearm), or Education
Code section 48904(a)(1) (willful misconduct).
Sources and Authority
• “While it is the rule in California . . . that there is no vicarious liability on a
parent for the torts of a child there is ‘another rule of the law relating to the
torts of minors, which is somewhat in the nature of an exception, and that is
that a parent may become liable for an injury caused by the child where the
parent’s negligence made it possible for the child to cause the injury
complained of, and probable that it would do so.’ ” (Ellis v. D’Angelo (1953)
116 Cal.App.2d 310, 317 [253 P.2d 675], internal citations omitted.)
• “Parents are responsible for harm caused by their children only when it has
been shown that ‘the parents as reasonable persons previously became aware of
278
habits or tendencies of the infant which made it likely that the child would
misbehave so that they should have restrained him in apposite conduct and
actions.’ ” (Reida v. Lund (1971) 18 Cal.App.3d 698, 702 [96 Cal.Rptr. 102],
internal citation omitted.)
• “In cases where the parent did not observe the child’s conduct which led to the
injury, the parent has been held liable where he had been aware of the child’s
dangerous propensity or habit and negligently failed to exercise proper control
or negligently failed to give appropriate warning. In other cases, where the
parent did not observe and was not in a position to control the conduct which
endangered the plaintiff, recovery was denied on the ground that there was no
showing that the parent knew of any dangerous tendency. What is said about
‘propensity’ or ‘habit’ in those cases has no applicability where the parent is
present and observes the dangerous behavior and has an opportunity to exercise
control but neglects to do so.” (Costello v. Hart (1972) 23 Cal.App.3d 898,
900–901 [100 Cal.Rptr. 554], internal citations omitted.)
• “ ‘The ability to control the child, rather than the relationship as such, is the
basis for a finding of liability on the part of a parent. . . . [The] absence of
such ability is fatal to a claim of legal responsibility.’ The ability to control is
inferred from the relationship of parent to minor child, as it is from the
relationship of custodian to charge; yet it may be disproved by the
circumstances surrounding the particular situation.” (Robertson v. Wentz (1986)
187 Cal.App.3d 1281, 1290 [232 Cal.Rptr. 634], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1227–1234
California Tort Guide (Cont.Ed.Bar 3d ed.) General Principles, § 1.25
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.12; Ch. 8,
Vicarious Liability, § 8.08 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.16
(Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 367A, Minors: Tort Actions,
§ 367A.32 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.131
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.130 (Matthew
Bender)
31 California Legal Forms, Ch. 100A, Personal Affairs of Minors, § 100A.251
(Matthew Bender)
1 California Civil Practice: Torts §§ 3:32–3:35 (Thomson Reuters)
279
being injured as a result of their conduct” ’, this court has repeatedly recognized
a cause of action for negligence not only against those who have actual
knowledge of unreasonable danger, but also against those who have constructive
knowledge of it.” (John B., supra, 38 Cal.4th at p. 1190, internal citation
omitted.)
• “ ‘[C]onstructive knowledge,’ which means knowledge ‘that one using
reasonable care or diligence should have, and therefore is attributed by law to a
given person’, encompasses a variety of mental states, ranging from one who is
deliberately indifferent in the face of an unjustifiably high risk of harm to one
who merely should know of a dangerous condition. (John B., supra, 38 Cal.4th
at pp. 1190–1191, internal citations omitted.)
• “[T]he tort of negligent transmission of HIV does not depend solely on actual
knowledge of HIV infection and would extend at least to those situations where
the actor, under the totality of the circumstances, has reason to know of the
infection. Under the reason-to-know standard, ‘the actor has information from
which a person of reasonable intelligence or of the superior intelligence of the
actor would infer that the fact in question exists, or that such person would
govern his conduct upon the assumption that such fact exists.’ In other words,
‘the actor has knowledge of facts from which a reasonable man of ordinary
intelligence or one of the superior intelligence of the actor would either infer
the existence of the fact in question or would regard its existence as so highly
probable that his conduct would be predicated upon the assumption that the fact
did exist.’ ” (John B., supra, 38 Cal.4th at p. 1191, internal citations omitted.)
• “[W]e are mindful that our precedents direct us to consider whether a duty of
care exists ‘ “on a case-by-case basis.” ’ Accordingly, our conclusion that a
claim of negligent transmission of HIV lies against those who know or at least
have reason to know of the disease must be understood in the context of the
allegations in this case, which involves a couple who were engaged and
subsequently married; a defendant who falsely represented himself as
monogamous and disease-free and insisted the couple stop using condoms; and
a plaintiff who agreed to stop using condoms in reliance on those false
representations. We need not consider the existence or scope of a duty for
persons whose relationship does not extend beyond the sexual encounter itself,
whose relationship does not contemplate sexual exclusivity, who have not
represented themselves as disease-free, or who have not insisted on having sex
without condoms.” (John B., supra, 38 Cal.4th at p. 1193.)
Secondary Sources
9 Witkin, Summary of California Law (10th ed. 2005) Torts, § 912
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.13
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2]
(Matthew Bender)
281
282
New September 2003; Revised October 2004, June 2005, December 2005,
December 2007, May 2018
Directions for Use
As phrased, this definition of “substantial factor” subsumes the “but for” test of
causation, that is, “but for” the defendant’s conduct, the plaintiff’s harm would not
have occurred. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d
913, 819 P.2d 872]; see Rest.2d Torts, § 431.) The optional last sentence makes this
explicit, and in some cases it may be error not to give this sentence. (See Soule v.
GM Corp. (1994) 8 Cal.4th 548, 572–573 [34 Cal.Rptr.2d 607, 882 P.2d 298];
Rest.2d Torts, § 432(1).)
“Conduct,” in this context, refers to the culpable acts or omissions on which a
claim of legal fault is based, e.g., negligence, product defect, breach of contract, or
dangerous condition of public property. This is in contrast to an event that is not a
culpable act but that happens to occur in the chain of causation, e.g., that the
plaintiff’s alarm clock failed to go off, causing her to be at the location of the
accident at a time when she otherwise would not have been there. The reference to
“conduct” may be changed as appropriate to the facts of the case.
The “but for” test of the last optional sentence does not apply to concurrent
independent causes, which are multiple forces operating at the same time and
independently, each of which would have been sufficient by itself to bring about
the same harm. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 [135 Cal.Rptr.2d 629,
70 P.3d 1046]; Barton v. Owen (1977) 71 Cal.App.3d 484, 503–504 [139 Cal.Rptr.
494]; see Rest.2d Torts, § 432(2).) Accordingly, do not include the last sentence in
a case involving concurrent independent causes. (See also Major v. R.J. Reynolds
Tobacco Co. (2017) 14 Cal.App.5th 1179, 1198 [222 Cal.Rptr.3d 563] [court did
not err in refusing to give last sentence of instruction in case involving exposure to
carcinogens in cigarettes].)
In cases of multiple (concurrent dependent) causes, CACI No. 431, Causation:
Multiple Causes, should also be given.
In a case in which the plaintiff’s claim is that he or she contracted cancer from
exposure to the defendant’s asbestos-containing product, Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 977 [67 Cal.Rptr.2d 16, 941 P.2d 1203]
283
287
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1334–1341
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 1.13–1.15
1 Levy et al., California Torts, Ch. 2, Causation, § 2.02 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.22, Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.71
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.260–165.263
(Matthew Bender)
288
746−747 [184 Cal.Rptr.3d 79] [CACI No. 431 properly explained concurrent
substantial causes to the jury].)
• “For there to be comparative fault there must be more than one contributory or
concurrent legal cause of the injury for which recompense is sought.” (Doupnik
v. General Motors Corp. (1991) 225 Cal.App.3d 849, 866 [275 Cal.Rptr. 715].)
• “Because we conclude that, in this case, in which causation was the most
critical contested issue and in which there was substantial evidence of multiple
causes of [decedent]’ s death, the trial court improperly [refused to instruct] the
jury with respect to concurrent causation . . . .” (Logacz v. Limansky (1999) 71
Cal.App.4th 1149, 1152 [84 Cal.Rptr.2d 257].)
• “Clearly, where a defendant’s negligence is a concurring cause of an injury, the
law regards it as a legal cause of the injury, regardless of the extent to which it
contributes to the injury.” (Espinosa v. Little Company of Mary Hospital (1995)
31 Cal.App.4th 1304, 1317–1318 [37 Cal.Rptr.2d 541], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1193
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.16
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.89 (Matthew Bender)
California Products Liability Actions, Ch. 7, Proof, § 7.06 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.280–165.284
(Matthew Bender)
290
negligence will not supersede but such negligence, if ‘highly extraordinary,’ will
supersede. [¶ ] ‘[T]he fact that an intervening act of a third person is done in a
negligent manner does not make it a superseding cause if . . . the act is a
normal response to a situation created by the defendant’s conduct and the
manner in which the intervening act is done is not extraordinarily
negligent. . . .’ This test is but another way of saying a normal, but negligent,
intervening response will not supersede but an extraordinarily negligent
response will supersede.” (Martinez, supra, 68 Cal.App.4th at p. 701 [holding
that highly extraordinary negligence or extraordinarily negligent response
obviates need to prove unforeseeable risk of harm].)
• “Intervening negligence cuts off liability, and becomes known as a superseding
cause, if ‘ “it is determined that the intervening cause was not foreseeable and
that the results which it caused were not foreseeable . . . .” ’ ” (Martinez, supra,
68 Cal.App.4th at pp. 700–701, original italics.)
• “ ‘[T]he defense of “superseding cause[]” . . . absolves [the original] tortfeasor,
even though his conduct was a substantial contributing factor, when an
independent event [subsequently] intervenes in the chain of causation,
producing harm of a kind and degree so far beyond the risk the original
tortfeasor should have foreseen that the law deems it unfair to hold him
responsible.’ . . . [¶ ] To determine whether an independent intervening act was
reasonably foreseeable, we look to the act and the nature of the harm suffered.
To qualify as a superseding cause so as to relieve the defendant from liability
for the plaintiff’s injuries, both the intervening act and the results of that act
must not be foreseeable. Significantly, ‘what is required to be foreseeable is the
general character of the event or harm . . . not its precise nature or manner of
occurrence.’ ” (Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th
746, 755–756 [155 Cal.Rptr.3d 693], original italics, internal citations omitted.)
• “ ‘Third party negligence which is the immediate cause of an injury may be
viewed as a superseding cause when it is so highly extraordinary as to be
unforeseeable. . . . “The foreseeability required is of the risk of harm, not of
the particular intervening act. In other words, the defendant may be liable if his
conduct was ‘a substantial factor’ in bringing about the harm, though he neither
foresaw nor should have foreseen the extent of the harm or the manner in
which it occurred.” . . . It must appear that the intervening act has produced
“harm of a kind and degree so far beyond the risk the original tortfeasor should
have foreseen that the law deems it unfair to hold him responsible.” . . . [¶ ]
. . . [F]oreseeability is a question for the jury unless undisputed facts leave no
room for a reasonable difference of opinion. . . . Thus, the issue of superseding
cause is generally one of fact. . . .’ ” (Lawson v. Safeway Inc. (2010) 191
Cal.App.4th 400, 417 [119 Cal.Rptr.3d 366].)
• “The intervening negligence (or even recklessness) of a third party will not be
considered a superseding cause if it is a ‘normal response to a situation created
by the defendant’s conduct’ and is therefore ‘ “. . . within the scope of the
reasons [for] imposing the duty upon [the defendant] to refrain from negligent
293
295
act was reasonably foreseeable at the time of his negligent conduct.’ Moreover,
under section 449 of the Restatement Second of Torts that foreseeability may
arise directly from the risk created by the original act of negligence: ‘If the
likelihood that a third person may act in a particular manner is the hazard or
one of the hazards which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortious, or criminal does not prevent the actor
from being liable for harm caused thereby.’ ” (Landeros v. Flood (1976) 17
Cal.3d 399, 411 [131 Cal.Rptr. 69, 551 P.2d 389], internal citations omitted.)
• “The trial court’s modification of CACI No. 433 appears to have been intended
to apply the principle of negligence law that unforeseeable criminal conduct
cuts off a tortfeasor’s liability. CACI No. 433 sets forth the heightened
foreseeability that is required before an intervening criminal act will relieve a
defendant of liability for negligence. A third party’s criminal conduct becomes
actionable if the negligent tortfeasor has created a situation that facilitated the
crime.” (Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1508 [155
Cal.Rptr.3d 137], internal citations omitted.)
• “Criminal conduct which causes injury will ordinarily be deemed the proximate
cause of an injury, superseding any prior negligence which might otherwise be
deemed a contributing cause.” (Koepke v. Loo (1993) 18 Cal.App.4th 1444,
1449 [23 Cal.Rptr.2d 34].)
• “The common law rule that an intervening criminal act is, by its very nature, a
superseding cause has lost its universal application and its dogmatic rigidity.”
(Kane, supra, 98 Cal.App.3d at p. 360.)
• “CACI No. 433 erroneously allowed [defendant] a complete defense based on a
heightened standard of foreseeability inapplicable to plaintiffs’ design defect
claims. Specifically, CACI No. 433 allowed [defendant] to secure a defense
verdict by showing it ‘could not have reasonably foreseen that another person
would be likely to take advantage of the situation created by . . . [defendant]’s
conduct to commit this type of act.’ However, [defendant] did not create a
situation that [third party] took advantage of in order to commit a crime. [Third
party] did not throw the concrete at [decedent]’s truck because he perceived a
defective angle or composition of the windshield. CACI No. 433 erroneously
introduced a test that does not make sense in this products liability case.”
(Collins, supra, 214 Cal.App.4th at p. 1509.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1214–1216
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.17
1 Levy et al., California Torts, Ch. 2, Causation, § 2.11 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, §§ 165.301, 165.303,
165.322 (Matthew Bender)
297
You may decide that more than one of the defendants was negligent, but
that the negligence of only one of them could have actually caused
[name of plaintiff]’s harm. If you cannot decide which defendant caused
[name of plaintiff]’s harm, you must decide that each defendant is
responsible for the harm.
However, if a defendant proves that [he/she/it] did not cause [name of
plaintiff]’s harm, then you must conclude that defendant is not
responsible.
299
New September 2003; Revised December 2007, May 2018, November 2018
Directions for Use
This instruction is to be given in a case in which the plaintiff’s claim is that he or
she contracted an asbestos-related disease from exposure to the defendant’s
asbestos-containing product. This instruction is based on Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 982–983 [67 Cal.Rptr.2d 16, 941 P.2d 1203],
which addresses only exposure to asbestos from “defendant’s defective asbestos-
containing products.” Whether the same causation standards from Rutherford would
apply to defendants who are alleged to have created exposure to asbestos but are
not manufacturers or suppliers of asbestos-containing products is not settled.
However, at least one court has given CACI No. 435 with regard to a defendant
other than an asbestos manufacturer or supplier, but there was no analysis of the
issue on appeal. (See Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 290
[220 Cal.Rptr.3d 185] [court gave CACI No. 435 with regard to premises liability
defendant]; see also Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222,
1236–1239 [142 Cal.Rptr.3d 678] [Rutherford causation standards cited in case
against contractor alleged to have created exposure to asbestos at job site].) See the
discussion in the Directions for Use to CACI No. 430, Causation: Substantial
Factor, with regard to whether CACI No. 430 may also be given.
If the issue of medical causation is tried separately, revise this instruction to focus
on that issue.
If necessary, CACI No. 431, Causation: Multiple Causes, may also be given.
Sources and Authority
• “In the context of a cause of action for asbestos-related latent injuries, the
plaintiff must first establish some threshold exposure to the defendant’s
defective asbestos-containing products, and must further establish in reasonable
medical probability that a particular exposure or series of exposures was a
‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.
In an asbestos-related cancer case, the plaintiff need not prove that fibers from
the defendant’s product were the ones, or among the ones, that actually began
300
the process of malignant cellular growth. Instead, the plaintiff may meet the
burden of proving that exposure to defendant’s product was a substantial factor
causing the illness by showing that in reasonable medical probability it was a
substantial factor contributing to the plaintiff’s or decedent’s risk of developing
cancer. The jury should be so instructed. The standard instructions on
substantial factor and concurrent causation remain correct in this context and
should also be given.” (Rutherford, supra, 16 Cal.4th at pp. 982–983, original
italics, internal citation and footnotes omitted.)
• “The term ‘substantial factor’ has not been judicially defined with specificity,
and indeed it has been observed that it is ‘neither possible nor desirable to
reduce it to any lower terms.’ This court has suggested that a force which plays
only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or
loss is not a substantial factor. Undue emphasis should not be placed on the
term ‘substantial.’ For example, the substantial factor standard, formulated to
aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been
invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s
injury but is nevertheless urged as an insubstantial contribution to the injury.
Misused in this way, the substantial factor test ‘undermines the principles of
comparative negligence, under which a party is responsible for his or her share
of negligence and the harm caused thereby.’ ” (Rutherford, supra, 16 Cal.4th at
p. 969, internal citations omitted.)
• “[A] very minor force that does cause harm is a substantial factor. This rule
honors the principle of comparative fault.” (Bockrath v. Aldrich Chem. Co.
(1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398], internal citation
omitted.)
• “Contrary to defendant’s assertion, the California Supreme Court’s decision in
Viner v. Sweet (2003) 30 Cal.4th 1232 [135 Cal.Rptr.2d 629, 70 P.3d 1046]
(Viner) did not alter the causation requirement in asbestos-related cases. In
Viner, the court noted that subsection (1) of section 432 of the Restatement
Second of Torts, which provides that ‘the actor’s negligent conduct is not a
substantial factor in bringing about harm to another if the harm would have
been sustained even if the actor had not been negligent,’ ‘demonstrates how the
“substantial factor” test subsumes the traditional “but for” test of causation.’
Defendant argues that Viner required plaintiffs to show that defendant’s product
‘independently caused [plaintiff’s] injury or that, but for that exposure,
[plaintiff] would not have contracted lung cancer.’ Viner, however, is a legal
malpractice case. It does not address the explicit holding in Rutherford that
‘plaintiffs may prove causation in asbestos-related cancer cases by
demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing
product in reasonable medical probability was a substantial factor in
contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled
or ingested, and hence to the risk of developing asbestos-related cancer, without
the need to demonstrate that fibers from the defendant’s particular product were
the ones, or among the ones, that actually produced the malignant growth.’ ”
301
among those, that actually began the cellular process of malignancy.’ Rather, a
‘plaintiff may meet the burden of proving that exposure to defendant’s product
was a substantial factor causing the illness by showing that in reasonable
medical probability it was a substantial factor contributing to the plaintiff’s or
decedent’s risk of developing cancer.’ ” (Izell, supra, 231 Cal.App.4th at p. 975,
original italics, internal citation omitted.)
• “Many factors are relevant in assessing the medical probability that an exposure
contributed to plaintiff’s asbestos disease. Frequency of exposure, regularity of
exposure, and proximity of the asbestos product to plaintiff are certainly
relevant, although these considerations should not be determinative in every
case. [Citation.] Additional factors may also be significant in individual cases,
such as the type of asbestos product to which plaintiff was exposed, the type of
injury suffered by plaintiff, and other possible sources of plaintiff’s injury.
[Citations.] ‘Ultimately, the sufficiency of the evidence of causation will depend
on the unique circumstances of each case.’ [Citation.] ” (Paulus v. Crane Co.
(2014) 224 Cal.App.4th 1357, 1363–1364 [169 Cal.Rptr.3d 373].)
• “In this case, [defendant] argues the trial court’s refusal to give its proposed
instruction was error because the instruction set forth ‘the requirement in
Rutherford that causation be decided by taking into account “the length,
frequency, proximity and intensity of exposure, the peculiar properties of the
individual product, [and] any other potential causes to which the disease could
be attributed.” ’ But Rutherford does not require the jury to take these factors
into account when deciding whether a plaintiff’s exposure to an asbestos-
containing product was a substantial factor in causing mesothelioma. Instead,
those factors are ones that a medical expert may rely upon in forming his or her
expert medical opinion.” (Davis v. Honeywell Internat. Inc. (2016) 245
Cal.App.4th 477, 495 [199 Cal.Rptr.3d 583], internal citation omitted.)
• “Mere presence at a site where asbestos was present is insufficient to establish
legally significant asbestos exposure.” (Shiffer v. CBS Corp. (2015) 240
Cal.App.4th 246, 252 [192 Cal.Rptr.3d 346].)
• “We disagree with the trial court’s view that Rutherford mandates that a medical
doctor must expressly link together the evidence of substantial factor causation.
The Rutherford court did not create a requirement that specific words must be
recited by appellant’s expert. Nor did the Rutherford court specify that the
testifying expert in asbestos cases must always be ‘somebody with an M.D.
after his name.’ The Rutherford court agreed with the Lineaweaver court that
‘the reference to “medical probability” in the standard “is no more than a
recognition that asbestos injury cases (like medical malpractice cases) involve
the use of medical evidence.” [Citation.]’ The Supreme Court has since clarified
that medical evidence does not necessarily have to be provided by a medical
doctor.” (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 675 [156
Cal.Rptr.3d 90], internal citations omitted.)
• “Nothing in Rutherford precludes a plaintiff from establishing legal causation
through opinion testimony by a competent medical expert to the effect that
303
305
battery. See CACI No. 1305, Battery by Peace Offıcer. For additional authorities on
excessive force by a law enforcement officer, see the Sources and Authority to
these two CACI instructions.
Factors (a), (b), and (c) are often referred to as the “Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are to be applied under California negligence law. (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506].)
They are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 661 F.3d 460,
467–468.); additional factors may be added if appropriate to the facts of the case. If
negligence, civil rights, and battery claims are all involved, the instructions can be
combined so as to give the Graham factors only once. A sentence may be added to
advise the jury that the factors apply to all three claims.
Give optional factor (d) if the officer’s conduct leading up to the need to use force
is at issue. Liability can arise if the earlier tactical conduct and decisions show, as
part of the totality of circumstances, that the ultimate use of force was
unreasonable. In this respect, California negligence law differs from the federal
standard under the Fourth Amendment. (Hayes v. County of San Diego (2014) 57
Cal. 4th 622, 639 [160 Cal.Rptr.3d 684, 305 P.3d 252].)
Sources and Authority
• Use of Reasonable Force to Arrest. California Penal Code section 835a.
• “Consistent with these principles and the factors the high court has identified,
the federal court in this case did not instruct the jury to conduct some abstract
or nebulous balancing of competing interests. Instead, as noted above, it
instructed the jury to determine the reasonableness of the officers’ actions in
light of ‘the totality of the circumstances at the time,’ including ‘the severity of
the crime at issue, whether the plaintiff posed a reasonable threat to the safety
of the officer or others, and whether the plaintiff was actively resisting detention
or attempting to escape.’ The same consideration of the totality of the
circumstances is required in determining reasonableness under California
negligence law. Moreover, California’s civil jury instructions specifically direct
the jury, in determining whether police officers used unreasonable force for
purposes of tort liability, to consider the same factors that the high court has
identified and that the federal court’s instructions in this case set forth. (Judicial
Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in
arguing that the federal and state standards of reasonableness differ in that the
former involves a fact finder’s balancing of competing interests.” (Hernandez,
supra, 46 Cal.4th at p. 514, internal citation omitted.)
• “Determining whether the force used to effect a particular seizure is
‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘ “the
nature and quality of the intrusion on the individual’s Fourth Amendment
interests” ’ against the countervailing governmental interests at stake. Our
Fourth Amendment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some
307
degree of physical coercion or threat thereof to effect it. Because ‘[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application,’ however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Graham, supra, 490 U.S. at p. 396,
internal citations omitted.)
• “The most important of these [Graham factors, above] is whether the suspect
posed an immediate threat to the officers or others, as measured objectively
under the circumstances.” (Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
• “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. . . . [T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation. . . .” ’ In
calculating whether the amount of force was excessive, a trier of fact must
recognize that peace officers are often forced to make split-second judgments, in
tense circumstances, concerning the amount of force required.” (Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 527–528 [89 Cal.Rptr.3d 801], internal
citations omitted.)
• “ ‘[A]s long as an officer’s conduct falls within the range of conduct that is
reasonable under the circumstances, there is no requirement that he or she
choose the “most reasonable” action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful
apprehension of a violent suspect, in order to avoid liability for negligence.’ ”
(Hayes, supra, 57 Cal.4th at p. 632.)
• “A police officer’s use of deadly force is reasonable if ‘ “ ‘the officer has
probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.’ . . .” . . .’ ” (Brown, supra,
171 Cal.App.4th at p. 528.)
• “Law enforcement personnel’s tactical conduct and decisions preceding the use
of deadly force are relevant considerations under California law in determining
whether the use of deadly force gives rise to negligence liability. Such liability
can arise, for example, if the tactical conduct and decisions show, as part of the
totality of circumstances, that the use of deadly force was unreasonable.”
(Hayes, supra, 57 Cal.4th at p. 639.)
• “The California Supreme Court did not address whether decisions before non-
deadly force can be actionable negligence, but addressed this issue only in the
context of ‘deadly force.’ ” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983,
308
309
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.150 (Matthew
Bender)
312
Derived from former CACI No. 450 December 2010; Revised December 2011
Directions for Use
Use this instruction for situations at the scene of an emergency not involving
medical, law enforcement, or emergency personnel. (See Health & Saf. Code,
313
under a duty to exercise due care in performance and is liable if (a) his failure
to exercise such care increases the risk of such harm, or (b) the harm is suffered
because of the other’s reliance upon the undertaking.” (Williams v. State of
California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664 P.2d 137], internal
citations omitted.)
• “A police officer, paramedic or other public safety worker is as much entitled to
the benefit of this general rule as anyone else.” (Camp v. State of California
(2010) 184 Cal.App.4th 967, 975 [109 Cal.Rptr.3d 676].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a
danger has induced reliance, or when the actions of CHP place a person in peril
or increase the risk of harm. In other words, to create a special relationship and
a duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s
way [citations], or lulled a citizen into a false sense of security and then
withdrew essential safety precautions.” ’ Nonfeasance that leaves the citizen in
exactly the same position that he or she already occupied cannot support a
finding of duty of care. Affirmative conduct or misfeasance on the part of CHP
that induces reliance or changes the risk of harm is required.” (Greyhound
Lines, Inc. v. Department of the California Highway Patrol (2013) 213
Cal.App.4th 1129, 1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• Statutory exceptions to Good Samaritan liability include immunities under
certain circumstances for medical licensees (Bus. & Prof. Code, §§ 2395–2398),
nurses (Bus. & Prof. Code, §§ 2727.5, 2861.5), dentists (Bus. & Prof. Code,
§ 1627.5), rescue teams (Health & Saf. Code, § 1317(f)), persons rendering
emergency medical services (Health & Saf. Code, § 1799.102), paramedics
(Health & Saf. Code, § 1799.104), and first-aid volunteers (Gov. Code,
§ 50086).
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Pleadings, § 594
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1060–1065
Haning, et al., California Practice Guide: Personal Injury, Ch. 2(II)-I, Negligence
Liability Based On Omission To Act—Legal Duty Arising From “Special
Relationship,” ¶¶ 2:1985, 2:2005 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[5][c]
(Matthew Bender)
315
316
undertaking is another application of the Good Samaritan rule. CACI No. 450A is
for use in a case in which the person aided is the injured plaintiff. (See
Restatement 2d of Torts, § 323.) This instruction is for use in a case in which the
defendant’s failure to exercise reasonable care in performing services to one person
has resulted in harm to another person.
Select one or more of the three options for element 5 depending on the facts.
Sources and Authority
• Negligent Undertaking. Restatement Second of Torts section 324A.
• “[T]he [Restatement Second of Torts] section 324A theory of
liability—sometimes referred to as the “Good Samaritan” rule—is a settled
principle firmly rooted in the common law of negligence. Section 324A
prescribes the conditions under which a person who undertakes to render
services for another may be liable to third persons for physical harm resulting
from a failure to act with reasonable care. Liability may exist if (a) the failure
to exercise reasonable care increased the risk of harm, (b) the undertaking was
to perform a duty the other person owed to the third persons, or (c) the harm
was suffered because the other person or the third persons relied on the
undertaking.” (Paz, supra, 22 Cal.4th at p. 553, original italics.)
• “Thus, as the traditional theory is articulated in the Restatement, and as we
have applied it in other contexts, a negligent undertaking claim of liability to
third parties requires evidence that: (1) the actor undertook, gratuitously or for
consideration, to render services to another; (2) the services rendered were of a
kind the actor should have recognized as necessary for the protection of third
persons; (3) the actor failed to exercise reasonable care in the performance of
the undertaking; (4) the actor’s failure to exercise reasonable care resulted in
physical harm to the third persons; and (5) either (a) the actor’s carelessness
increased the risk of such harm, or (b) the actor undertook to perform a duty
that the other owed to the third persons, or (c) the harm was suffered because
either the other or the third persons relied on the actor’s undertaking. [¶]
Section 324A’s negligent undertaking theory of liability subsumes the well-
known elements of any negligence action, viz., duty, breach of duty, proximate
cause, and damages.” (Paz, supra, 22 Cal.4th at p. 559, original italics, internal
citation omitted; see also Scott v. C. R. Bard, Inc. (2014) 231 Cal.App.4th 763,
775 [180 Cal.Rptr.3d 479] [jury properly instructed on elements as set forth
above in Paz].)
• “Section 324A is applied to determine the ‘duty element’ in a negligence action
where the defendant has ‘ “specifically . . . undertaken to perform the task that
he is charged with having performed negligently, for without the actual
assumption of the undertaking there can be no correlative duty to perform that
undertaking carefully.” ’ The negligent undertaking theory of liability applies to
personal injury and property damage claims, but not to claims seeking only
economic loss.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914,
922 [224 Cal.Rptr.3d 725], internal citations omitted.)
318
tort for failing to take affirmative action to protect another unless they have
some relationship that gives rise to a duty to act. However, one who undertakes
to aid another is under a duty to exercise due care in acting and is liable if the
failure to do so increases the risk of harm or if the harm is suffered because the
other relied on the undertaking. Section 324A integrates these two basic
principles in its rule.” (Paz. supra, 22 Cal.4th at pp. 558−559.)
• “[T]he ‘negligent undertaking’ doctrine, like the special relationship doctrine, is
an exception to the ‘no duty to aid’ rule.” (Conti v. Watchtower Bible & Tract
Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1231 [186 Cal.Rptr.3d
26].)
• “Under the good Samaritan doctrine, CHP may have a duty to members of the
public to exercise due care when CHP voluntarily assumes a protective duty
toward a certain member of the public and undertakes action on behalf of that
member thereby inducing reliance, when an express promise to warn of a
danger has induced reliance, or when the actions of CHP place a person in peril
or increase the risk of harm. In other words, to create a special relationship and
a duty of care, there must be evidence that CHP ‘ “made misrepresentations that
induced a citizen’s detrimental reliance [citation], placed a citizen in harm’s
way [citations], or lulled a citizen into a false sense of security and then
withdrew essential safety precautions.” ’ Nonfeasance that leaves the citizen in
exactly the same position that he or she already occupied cannot support a
finding of duty of care. Affirmative conduct or misfeasance on the part of CHP
that induces reliance or changes the risk of harm is required.” (Greyhound
Lines, Inc. v. Department of the California Highway Patrol (2013) 213
Cal.App.4th 1129, 1136 [152 Cal.Rptr.3d 492], internal citations omitted.)
• “A operates a grocery store. An electric light hanging over one of the aisles of
the store becomes defective, and A calls B Electric Company to repair it. B
Company sends a workman, who repairs the light, but leaves the fixture so
insecurely attached that it falls upon and injures C, a customer in the store who
is walking down the aisle. B Company is subject to liability to C.” (Restat. 2d
of Torts, § 324A, Illustration 1.)
Secondary Sources
5 Witkin, California Procedure (5th ed. 2018) Pleadings, § 594
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1205–1210
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶¶ 2:583.10–2:583.11, 2:876
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.11
(Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.32[2][d],
[5][c] (Matthew Bender)
320
321
[Name of defendant] claims that [name of plaintiff] may not recover any
damages because [he/she] agreed before the incident that [he/she] would
not hold [name of defendant] responsible for any damages.
If [name of defendant] proves that there was such an agreement and that
it applies to [name of plaintiff]’s claim, then [name of defendant] is not
responsible for [name of plaintiff]’s harm[, unless you find that [name of
defendant] was grossly negligent or intentionally harmed [name of
plaintiff]].
[If you find that [name of defendant] was grossly negligent or
intentionally harmed [name of plaintiff], then the agreement does not
apply. You must then determine whether [he/she/it] is responsible for
[name of plaintiff]’s harm based on the other instructions that I have
given you.]
the Release was written in a small font; (4) [defendant] did not inform Jerid he
was releasing his rights by signing the Release; (5) Jerid did not know he was
signing a release; (6) Jerid did not receive a copy of the Release; and (7) Jerid
was not given adequate time to read or understand the Release. [¶ ] We do not
find plaintiffs’ argument persuasive because . . . there was nothing preventing
Jerid from reading the Release. There is nothing indicating that Jerid was
prevented from (1) reading the Release while he sat at the booth, or (2) taking
the Release, moving his truck out of the line, and reading the Release. In sum,
plaintiffs’ arguments do not persuade us that Jerid was denied a reasonable
opportunity to discover the true terms of the contract.” (Rosencrans, supra, 192
Cal.App.4th at pp. 1080–1081.)
• “Whether a contract provision is clear and unambiguous is a question of law,
not of fact.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250
Cal.Rptr. 299].)
• “By signing as [decedent]’s parent, [plaintiff] approved of the terms of the
release and understood that her signature made the release ‘irrevocable and
binding.’ Under these circumstances, the release could not be disaffirmed. [¶ ]
Although [plaintiff]’s signature prevented the agreement from being disaffirmed,
it does not make her a party to the release.” (Eriksson, supra, 233 Cal.App.4th
at p. 721.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1282, 1292–1294
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.44
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.171
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.402 (Matthew
Bender)
325
Refrigerating Co. (1958) 157 Cal.App.2d 266, 274 [320 P.2d 583].) The exigent
nature of the circumstances effectively lowers the standard of care: “ ‘The test
is whether the actor took one of the courses of action which a standard man in
that emergency might have taken, and such a course is not negligent even
though it led to an injury which might have been prevented by adopting an
alternative course of action.’ [Citation.]” (Schultz v. Mathias (1970) 3
Cal.App.3d 904, 912–913 [83 Cal.Rptr. 888].)
• The doctrine of imminent peril does not apply to a person whose conduct
causes or contributes to the imminent peril. (Pittman v. Boiven (1967) 249
Cal.App.2d 207, 216 [57 Cal.Rptr. 319].)
• The doctrine applies when a person perceives danger to himself or herself as
well as when he or she perceives a danger to others. (Damele, supra, 219
Cal.App.3d at p. 36.)
• “[T]he mere appearance of an imminent peril to others—not an actual imminent
peril—is all that is required.” (Damele, supra, 219 Cal.App.3d at p. 37.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1282, 1292–1294
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.7
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03, 1.11,
1.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew
Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.250 (Matthew
Bender)
327
[Name of plaintiff] claims that [he/she] was not at fault for [his/her] own
injury because [he/she] was attempting to rescue a person who was in
danger [as a result of [name of defendant]’s negligence].
To establish this claim, [name of plaintiff] must prove all of the
following:
1. That there was, or a reasonable person would have perceived
that there was, an emergency situation in which someone was in
actual or apparent danger of immediate injury;
2. That [the emergency/a danger to [name of plaintiff]] was created
by [name of defendant]’s negligence; and
3. That [name of plaintiff] was harmed while attempting to rescue
the person in danger.
[name of plaintiff]” in element 2. Also omit the bracketed material in the opening
sentence.
Sources and Authority
• “The cases have developed the rule that persons injured in the course of
undertaking a necessary rescue may, absent rash or reckless conduct on their
part, recover from the person whose negligence created the peril which
necessitated the rescue. [¶] Although its precise limits are not yet fully
developed, the rescue doctrine varies the ordinary rules of negligence in two
important respects: (1) it permits the rescuer to sue on the basis of defendant’s
initial negligence toward the party rescued, without the necessity of proving
negligence toward the rescuer, and (2) it substantially restricts the availability of
the defense of contributory negligence by requiring defendant to prove that the
rescuer acted rashly or recklessly under the circumstances.” (Solgaard, supra, 6
Cal.3d at p. 368, footnote omitted.)
• “The rescue doctrine contemplates a voluntary act by one who, in an emergency
and prompted by spontaneous human motive to save human life, attempts a
rescue that he had no duty to attempt by virtue of a legal obligation or duty
fastened on him by his employment.” (Bryant v. Glastetter (1995) 32
Cal.App.4th 770, 784 [38 Cal.Rptr.2d 291].)
• “[T]he rescue doctrine arose in an era of contributory negligence, where any
negligence on the part of a plaintiff barred the action. ‘The purpose of the
rescue doctrine when it was first created was to avoid having a plaintiff be
found contributorily negligent as a matter of law when he voluntarily placed
himself in a perilous position to prevent another person from suffering serious
injury or death, the courts often stating that the plaintiff’s recovery should not
be barred unless his rescue attempt was recklessly or rashly made.’ Most
defendants could point to some negligence by the rescuer and simply
approaching the danger could be construed as negligent, or as an assumption of
the risk. This advanced no tenable public policy: It deterred rescues and ran
counter to the human impulse to help others in need. Accordingly, the courts
ruled the act of approaching danger did not interrupt the normal causal reach of
tort liability and did not, of itself, establish contributory negligence.” (Sears v.
Morrison (1999) 76 Cal.App.4th 577, 581 [90 Cal.Rptr.2d 528], internal
citations omitted.)
• “In order to assert the rescue doctrine, the rescuer must show that there was
someone in peril and that he acted to rescue such person from the peril.”
(Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1252 [124
Cal.Rptr.3d 245].)
• “The evidence in the instant case was uncontradicted that defendant’s
employees . . . were in peril of their lives, that immediate action was required
to save or assist them, that plaintiff undertook to rescue them, and that he was
injured while in the course of doing so. It is apparent, therefore, that plaintiff
was, as a matter of law, a rescuer and entitled to the benefits of the rescuer
329
330
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1306–1308
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.41
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.03[4],
1.30 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence,
§ 380.30[5][e][v] (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.140 (Matthew
Bender)
331
• “It is undisputed that plaintiffs discovered shortly after the accident in 2010 that
[defendant] had failed to secure the insurance coverage plaintiffs requested.
Thus, this case does not involve the delayed discovery doctrine, which makes
‘accrual of a cause of action contingent on when a party discovered or should
have discovered that his or her injury had a wrongful cause.’ In delayed
discovery cases, ‘plaintiffs are required to conduct a reasonable investigation
after becoming aware of an injury, and are charged with knowledge of the
information that would have been revealed by such an investigation.’ Here, the
question is when plaintiffs incurred ‘actual injury’—not when they discovered
[defendant]’s negligence. The trial court erred to the extent that it relied on the
delayed discovery doctrine to determine when plaintiffs incurred actual injury.”
(Lederer v. Gursey Schneider LLP (2018) 22 Cal.App.5th 508, 521 [231
Cal.Rptr.3d 518], internal citations omitted.)
• “Where, as here, ‘damages are an element of a cause of action, the cause of
action does not accrue until the damages have been sustained. . . . “Mere threat
of future harm, not yet realized, is not enough.” . . . “Basic public policy is
best served by recognizing that damage is necessary to mature such a cause of
action.” . . . Therefore, when the wrongful act does not result in immediate
damage, “the cause of action does not accrue prior to the maturation of
perceptible harm.” ’ ” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604
[129 Cal.Rptr.3d 525].)
• “ ‘[O]nce plaintiff has suffered actual and appreciable harm, neither the
speculative nor uncertain character of damages nor the difficulty of proof will
toll the period of limitation.’ Cases contrast actual and appreciable harm with
nominal damages, speculative harm or the threat of future harm. The mere
breach of duty—causing only nominal damages, speculative harm or the threat
of future harm not yet realized—normally does not suffice to create a cause of
action.” (San Francisco Unified School Dist. v. W. R. Grace & Co. (1995) 37
Cal.App.4th 1318, 1326 [44 Cal.Rptr.2d 305], internal citations omitted.)
• “Generally, the bar of the statute of limitations is raised as an affirmative
defense, subject to proof by the defendant.” (Czajkowski v. Haskell & White
(2012) 208 Cal.App.4th 166, 174 [144 Cal.Rptr.3d 522].)
• “ ‘[R]esolution of the statute of limitations issue is normally a question of
fact . . . .’ ” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487 [59
Cal.Rptr.2d 20, 926 P.2d 1114].)
• “Because the relevant facts are not in dispute, the application of the statute of
limitations may be decided as a question of law.” (Lederer, supra, 22
Cal.App.5th at p. 521.)
• “So long as the time allowed for filing an action is not inherently unreasonable,
California courts afford ‘contracting parties considerable freedom to modify the
length of a statute of limitations.’ ” (Wind Dancer Production Group v. Walt
Disney Pictures (2017) 10 Cal.App.5th 56, 74 [215 Cal.Rptr.3d 835].)
Secondary Sources
333
4 Witkin, California Procedure (5th ed. 2008) Actions, §§ 493–507, 553–592, 673
5 Levy et al., California Torts, Ch. 71, Commencement, Prosecution, and Dismissal
of Tort Actions, §§ 71.01–71.06 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§§ 345.19, 345.20 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.20 et
seq. (Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.05, 4.14, 4.38, 4.39
334
New April 2007; Revised December 2007, April 2009, December 2009
Directions for Use
Read this instruction with the first option after CACI No. 454, Affırmative
Defense—Statute of Limitations, if the plaintiff seeks to overcome the statute-of-
limitations defense by asserting the “delayed-discovery rule” or “discovery rule.”
The discovery rule provides that the accrual date of a cause of action is delayed
until the plaintiff is aware of his or her injury and its negligent cause. (Jolly v. Eli
Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [245 Cal.Rptr. 658, 751 P.2d 923].) The
date to be inserted is the applicable limitation period before the filing date. For
example, if the limitation period is two years and the filing date is August 31,
2009, the date is August 31, 2007.
If the facts suggest that even if the plaintiff had conducted a timely and reasonable
investigation, it would not have disclosed the limitation-triggering information, read
the second option. (See Fox v. Ethicon Endo-Surgery (2005) 35 Cal.4th 797 [27
Cal.Rptr.3d 661, 110 P.3d 914] [fact that plaintiff suspected her injury was caused
by surgeon’s negligence and timely filed action for medical negligence against
health care provider did not preclude “discovery rule” from delaying accrual of
limitations period on products liability cause of action against medical staple
manufacturer whose role in causing injury was not known and could not have been
reasonably discovered within the applicable limitations period commencing from
date of injury].)
See also verdict form CACI No. VF-410, Statute of Limitations—Delayed
Discovery—Reasonable Investigation Would Not Have Disclosed Pertinent Facts.
Do not use this instruction for medical malpractice (see CACI No. 555, Affırmative
Defense—Statute of Limitations—Medical Malpractice—One-Year Limit, and CACI
335
reasonable person would have suspected the injury was caused by wrongdoing.
[Citation.] The first to occur under these two tests begins the limitations
period.’ ” (Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1552
[178 Cal.Rptr.3d 897].)
• “While ignorance of the existence of an injury or cause of action may delay the
running of the statute of limitations until the date of discovery, the general rule
in California has been that ignorance of the identity of the defendant is not
essential to a claim and therefore will not toll the statute.” (Bernson v.
Browning-Ferris Industries (1994) 7 Cal.4th 926, 932 [30 Cal.Rptr.2d 440, 873
P.2d 613].)
• “[U]nder the delayed discovery rule, a cause of action accrues and the statute of
limitations begins to run when the plaintiff has reason to suspect an injury and
some wrongful cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis for that
particular cause of action. In that case, the statute of limitations for that cause
of action will be tolled until such time as a reasonable investigation would have
revealed its factual basis.” (Fox, supra, 35 Cal.4th at p. 803.)
• “[A]s Fox teaches, claims based on two independent legal theories against two
separate defendants can accrue at different times.” (E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1323 [64 Cal.Rptr.3d 9].)
• “A limitation period does not begin until a cause of action accrues, i.e., all
essential elements are present and a claim becomes legally actionable.
Developed to mitigate the harsh results produced by strict definitions of accrual,
the common law discovery rule postpones accrual until a plaintiff discovers or
has reason to discover the cause of action.” (Glue-Fold, Inc., supra, 82
Cal.App.4th at p. 1029, internal citations omitted.)
• “A plaintiff’s inability to discover a cause of action may occur ‘when it is
particularly difficult for the plaintiff to observe or understand the breach of duty,
or when the injury itself (or its cause) is hidden or beyond what the ordinary
person could be expected to understand.’ ” (NBCUniversal Media, LLC v.
Superior Court (2014) 225 Cal.App.4th 1222, 1232 [171 Cal.Rptr.3d 1].)
• “[T]he plaintiff may discover, or have reason to discover, the cause of action
even if he does not suspect, or have reason to suspect, the identity of the
defendant. That is because the identity of the defendant is not an element of
any cause of action. It follows that failure to discover, or have reason to
discover, the identity of the defendant does not postpone the accrual of a cause
of action, whereas a like failure concerning the cause of action itself does.
‘Although never fully articulated, the rationale for distinguishing between
ignorance’ of the defendant and ‘ignorance’ of the cause of action itself
‘appears to be premised on the commonsense assumption that once the plaintiff
is aware of’ the latter, he ‘normally’ has ‘sufficient opportunity,’ within the
‘applicable limitations period,’ ‘to discover the identity’ of the former. He may
‘often effectively extend[]’ the limitations period in question ‘by the filing’ and
337
339
[Name of plaintiff] claims that even if [his/her/its] lawsuit was not filed
on time, [he/she/it] may still proceed because [name of defendant] did or
said something that caused [name of plaintiff] to delay filing the lawsuit.
In order to establish the right to proceed, [name of plaintiff] must prove
all of the following:
1. That [name of defendant] said or did something that caused [name
of plaintiff] to believe that it would not be necessary to file a
lawsuit;
2. That [name of plaintiff] relied on [name of defendant]’s conduct
and therefore did not file the lawsuit within the time otherwise
required;
3. That a reasonable person in [name of plaintiff]’s position would
have relied on [name of defendant]’s conduct; [and]
[4. That after the limitation period had expired, [name of
defendant]’s representations by words or conduct proved to not
be true; and]
5. That [name of plaintiff] proceeded diligently to file suit once [he/
she/it] discovered the need to proceed.
It is not necessary that [name of defendant] have acted in bad faith or
intended to mislead [name of plaintiff].
Cal.App.4th 1236, 1246 [150 Cal.Rptr.3d 446] [equitable estoppel to deny family
leave under California Family Rights Act].)
Most cases do not frame the issue as one of equitable estoppel and its four
elements. All that is required is that the defendant’s conduct actually have misled
the plaintiff, and that plaintiff reasonably have relied on that conduct. Bad faith or
an intent to mislead is not required. (Lantzy v. Centex Homes (2003) 31 Cal.4th
363, 384 [2 Cal.Rptr.3d 655, 73 P.3d 517]; Shaffer v. Debbas (1993) 17
Cal.App.4th 33, 43 [21 Cal.Rptr.2d 110].) Nor does it appear that there is a
requirement that the defendant specifically intended to induce the plaintiff to defer
filing suit. Therefore, no specific intent element has been included. However, the
California Supreme Court has stated that element 4 is to be given in a construction
defect case in which the defendant has assured the plaintiff that all defects will be
repaired. (See Lantzy, supra, 31 Cal.4th at p. 384.)
Sources and Authority
• “As the name suggests, equitable estoppel is an equitable issue for court
resolution.” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “While the judge determines equitable causes of action, the judge may (in rare
instances) empanel an advisory jury to make preliminary factual findings. The
factual findings are purely advisory because, on equitable causes of action, the
judge is the proper fact finder. ‘[W]hile a jury may be used for advisory
verdicts as to questions of fact [in equitable actions], it is the duty of the trial
court to make its own independent findings and to adopt or reject the findings
of the jury as it deems proper.’ ” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146,
156 [85 Cal.Rptr.3d 337], internal citations omitted.)
• “[CACI No. 456 is] appropriate for use when a trial court ‘empanel[s] an
advisory jury to make preliminary factual findings,’ with respect to equitable
estoppel . . . .” (Hopkins, supra, 225 Cal.App.4th at p. 745.)
• “Equitable tolling and equitable estoppel are distinct doctrines. ‘ “Tolling,
strictly speaking, is concerned with the point at which the limitations period
begins to run and with the circumstances in which the running of the limitations
period may be suspended. . . . Equitable estoppel, however, . . . comes into
play only after the limitations period has run and addresses . . . the
circumstances in which a party will be estopped from asserting the statute of
limitations as a defense to an admittedly untimely action because his conduct
has induced another into forbearing suit within the applicable limitations period.
[Equitable estoppel] is wholly independent of the limitations period itself and
takes its life . . . from the equitable principle that no man [may] profit from his
own wrongdoing in a court of justice.” ’ Thus, equitable estoppel is available
even where the limitations statute at issue expressly precludes equitable tolling.”
(Lantzy, supra, 31 Cal.4th at pp. 383–384, internal citations omitted.)
• “Accordingly, (1) if one potentially liable for a construction defect represents,
while the limitations period is still running, that all actionable damage has been
or will be repaired, thus making it unnecessary to sue, (2) the plaintiff
341
evidence: (1) the public entity was apprised of the facts, (2) it intended its
conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts,
and (4) relied upon the conduct to his detriment.’ ” (J.P. supra, 232 Cal.App.4th
at p. 333.)
• “It is well settled that the doctrine of estoppel in pais is applicable in a proper
case to prevent a fraudulent or inequitable resort to the statute of limitations.”
(Estate of Pieper (1964) 224 Cal.App.2d 670, 690–691 [37 Cal.Rptr. 46],
internal citations omitted.)
• “Although ‘ignorance of the identity of the defendant . . . will not toll the
statute’, ‘a defendant may be equitably estopped from asserting the statute of
limitations when, as the result of intentional concealment, the plaintiff is unable
to discover the defendant’s actual identity.’ ” (Vaca v. Wachovia Mortgage Corp.
(2011) 198 Cal.App.4th 737, 745 [129 Cal.Rptr.3d 354], original italics, internal
citation omitted.)
• “Settlement negotiations are relevant and admissible to prove an estoppel to
assert the statute of limitations.” (Holdgrafer, supra, 160 Cal.App.4th at p. 927.)
• “The estoppel issue in this case arises in a unique context. Defendants’
wrongful conduct has given rise to separate causes of action for property
damage and personal injury with separate statutes of limitation. Where the
plaintiffs reasonably rely on defendants’ promise to repair the property damage
without a lawsuit, is a jury permitted to find that plaintiffs’ decision to delay
filing a personal injury lawsuit was also reasonable? We conclude such a
finding is permissible on the facts of this case.” (Shaffer, supra, 17 Cal.App.4th
at p. 43, internal citation omitted.)
• “At the very least, [plaintiff] cannot establish the second element necessary for
equitable estoppel. [Plaintiff] argues that [defendant] was estopped to rely on
the time bar of section 340.9 by its continued reconsideration of her claim after
December 31, 2001, had passed. But she cannot prove [defendant] intended its
reconsideration of the claim to be relied upon, or acted in such a way that
[plaintiff] had a right to believe it so intended.” (Ashou, supra, 138 Cal.App.4th
at p. 767.)
• “ ‘It is well settled that a public entity may be estopped from asserting the
limitations of the claims statute where its agents or employees have prevented
or deterred the filing of a timely claim by some affirmative act.’ Estoppel as a
bar to a public entity’s assertion of the defense of noncompliance arises when a
plaintiff establishes by a preponderance of the evidence (1) the public entity
was apprised of the facts, (2) it intended its conduct to be acted upon, (3) the
plaintiff was ignorant of the true state of facts, and (4) relied upon the conduct
to his detriment.” (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th
1229, 1239–1240 [92 Cal.Rptr.3d 1], internal citation omitted.)
• “A nondisclosure is a cause of injury if the plaintiff would have acted so as to
avoid injury had the plaintiff known the concealed fact. The plaintiff’s reliance
on a nondisclosure was reasonable if the plaintiff’s failure to discover the
343
344
[Name of plaintiff] claims that even if [his/her/its] lawsuit was not filed
by [insert date from applicable statute of limitations], [he/she/it] may still
proceed because the deadline for filing the lawsuit was extended by the
time during which [specify prior proceeding that qualifies as the tolling
event, e.g., she was seeking workers’ compensation benefits]. In order to
establish the right to proceed, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] received timely notice that [name of
plaintiff] was [e.g., seeking workers’ compensation] instead of filing
a lawsuit;
2. That the facts of the two claims were so similar that an
investigation of the [e.g., workers’ compensation claim] gave or
would have given [name of defendant] the information needed to
defend the lawsuit; and
3. That [name of plaintiff] was acting reasonably and in good faith
by [e.g., seeking workers’ compensation].
For [name of defendant] to have received timely notice, [name of plaintiff]
must have filed the [e.g., workers’ compensation claim] by [insert date
from applicable statute of limitations] and the [e.g., claim] notified [name
of defendant] of the need to begin investigating the facts that form the
basis for the lawsuit.
In considering whether [name of plaintiff] acted reasonably and in good
faith, you may consider the amount of time after the [e.g., workers’
compensation claim] was [resolved/abandoned] before [he/she/it] filed the
lawsuit.
(2009) 174 Cal.App.4th 590, 598 [95 Cal.Rptr.3d 18], internal citations
omitted.)
• “Broadly speaking, the doctrine applies ‘ “[w]hen an injured person has several
legal remedies and, reasonably and in good faith, pursues one.” ’ [Citation.]
Thus, it may apply where one action stands to lessen the harm that is the
subject of a potential second action; where administrative remedies must be
exhausted before a second action can proceed; or where a first action, embarked
upon in good faith, is found to be defective for some reason.” (Wassmann v.
South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 853
[234 Cal.Rptr.3d 712].)
• “[T]he effect of equitable tolling is that the limitations period stops running
during the tolling event, and begins to run again only when the tolling event
has concluded. As a consequence, the tolled interval, no matter when it took
place, is tacked onto the end of the limitations period, thus extending the
deadline for suit by the entire length of time during which the tolling event
previously occurred.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370–371
[2 Cal.Rptr.3d 655, 73 P.3d 517].)
• “A major reason for applying the doctrine is to avoid ‘the hardship of
compelling plaintiffs to pursue several duplicative actions simultaneously on the
same set of facts.’ ‘[D]isposition of a case filed in one forum may render
proceedings in the second unnecessary or easier and less expensive to
resolve.’ ” (Guevara v. Ventura County Community College Dist. (2008) 169
Cal.App.4th 167, 174 [87 Cal.Rptr.3d 50], internal citations omitted.)
• “[A]pplication of the doctrine of equitable tolling requires timely notice, and
lack of prejudice, to the defendant, and reasonable and good faith conduct on
the part of the plaintiff. These elements seemingly are present here. As noted,
the federal court, without prejudice, declined to assert jurisdiction over a timely
filed state law cause of action and plaintiffs thereafter promptly asserted that
cause in the proper state court. Unquestionably, the same set of facts may be
the basis for claims under both federal and state law. We discern no reason of
policy which would require plaintiffs to file simultaneously two separate actions
based upon the same facts in both state and federal courts since ‘duplicative
proceedings are surely inefficient, awkward and laborious.’ ” (Addison v. State
(1978) 21 Cal.3d 313, 319 [146 Cal.Rptr. 224, 578 P.2d 941], internal citations
omitted.)
• “ ‘ “The timely notice requirement essentially means that the first claim must
have been filed within the statutory period. Furthermore[,] the filing of the first
claim must alert the defendant in the second claim of the need to begin
investigating the facts which form the basis for the second claim. Generally this
means that the defendant in the first claim is the same one being sued in the
second.” “The second prerequisite essentially translates to a requirement that the
facts of the two claims be identical or at least so similar that the defendant’s
investigation of the first claim will put him in a position to fairly defend the
second.” “The third prerequisite of good faith and reasonable conduct on the
347
part of the plaintiff is less clearly defined in the cases. But in Addison v. State
of California, supra, 21 Cal.3d 313[,] the Supreme Court did stress that the
plaintiff filed his second claim a short time after tolling ended.” ’ ” (McDonald,
supra, 45 Cal.4th at p. 102, fn. 2, internal citations omitted.)
• “The third requirement of good faith and reasonable conduct may turn on
whether ‘a plaintiff delayed filing the second claim until the statute on that
claim had nearly run . . .’ or ‘whether the plaintiff [took] affirmative actions
which . . . misle[d] the defendant into believing the plaintiff was foregoing his
second claim.’ ” (Tarkington v. California Unemployment Ins. Appeals Bd.
(2009) 172 Cal.App.4th 1494, 1505 [92 Cal.Rptr.3d 131].)
• “Where exhaustion of an administrative remedy is mandatory prior to filing suit,
equitable tolling is automatic: ‘It has long been settled in this and other
jurisdictions that whenever the exhaustion of administrative remedies is a
prerequisite to the initiation of a civil action, the running of the limitations
period is tolled during the time consumed by the administrative proceeding.’
This rule prevents administrative exhaustion requirements from rendering
illusory nonadministrative remedies contingent on exhaustion.” (McDonald,
supra, 45 Cal.4th at p. 101, internal citation omitted.)
• “The trial court rejected equitable tolling on the apparent ground that tolling
was unavailable where, as here, the plaintiff was advised the alternate
administrative procedure he or she was pursuing was voluntary and need not be
exhausted. In reversing summary judgment, the Court of Appeal implicitly
concluded equitable tolling is in fact available in such circumstances and
explicitly concluded equitable tolling is not foreclosed as a matter of law under
the FEHA. The Court of Appeal was correct on each count.” (McDonald, supra,
45 Cal.4th at p. 114.)
• “Equitable tolling and equitable estoppel [see CACI No. 456] are distinct
doctrines. ‘ “Tolling, strictly speaking, is concerned with the point at which the
limitations period begins to run and with the circumstances in which the
running of the limitations period may be suspended. . . . Equitable estoppel,
however, . . . comes into play only after the limitations period has run and
addresses . . . the circumstances in which a party will be estopped from
asserting the statute of limitations as a defense to an admittedly untimely action
because his conduct has induced another into forbearing suit within the
applicable limitations period. [Equitable estoppel] is wholly independent of the
limitations period itself and takes its life . . . from the equitable principle that
no man [may] profit from his own wrongdoing in a court of justice.” ’ ”
(Lantzy, supra, 31 Cal.4th at pp. 383–384.)
• “[V]oluntary abandonment [of the first proceeding] does not categorically bar
application of equitable tolling, but it may be relevant to whether a plaintiff can
satisfy the three criteria for equitable tolling.” (McDonald, supra, 45 Cal.4th at
p. 111.)
• “The equitable tolling doctrine generally requires a showing that the plaintiff is
348
Superior Court (2012) 211 Cal.App.4th 1100, 1109 [150 Cal.Rptr.3d 405].)
• “Equitable tolling applies to claims under FEHA during the period in which the
plaintiff exhausts administrative remedies or when the plaintiff voluntarily
pursues an administrative remedy or nonmandatory grievance procedure, even if
exhaustion of that remedy is not mandatory.” (Wassmann, supra, 24 Cal.App.5th
at pp. 853–854.)
Secondary Sources
4 Witkin, California Procedure (5th ed. 2008) Actions, § 760 et seq.
Turner et al., California Practice Guide: Civil Procedure Before Trial—Statutes of
Limitations, Ch. 1-A, Definitions And Distinctions ¶ 1:57.2 (The Rutter Group)
3 California Torts, Ch. 32, Liability of Attorneys, § 32.60[1][g.1] (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 345, Limitation of Actions,
§ 345.21 (Matthew Bender)
14 California Points and Authorities, Ch. 143, Limitation of Actions, § 143.46
(Matthew Bender)
458–459. Reserved for Future Use
350
353
and the question of the owner’s negligence is not in the case.’ ” (Hillman v.
Garcia-Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033].)
• “[I]f the animal which inflicted the injury is vicious and dangerous, known to
the defendant to be such, an allegation of negligence on the part of defendant is
unnecessary and the averment, if made, may be treated as surplusage.” (Baugh,
supra, 91 Cal.App.2d at p. 791.)
• “[A] wild animal is presumed to be vicious and since the owner of such an
animal . . . is an insurer against the acts of the animal to anyone who is
injured, and unless such person voluntarily or consciously does something
which brings the injury on himself, the question of the owner’s negligence is
not in the case.” Baugh, supra, 91 Cal.App.2d at p. 791.)
• “The court instructed the jury with respect to the liability of the keeper of a
vicious or dangerous animal, known to be such by its owner. Although plaintiff
has not raised any objection to this instruction, it was not proper in the instant
case since the animal was of the class of animals ferae naturae, of known
savage and vicious nature, and hence an instruction on the owner’s knowledge
of its ferocity was unnecessary.” (Baugh, supra, 91 Cal.App.2d at pp. 791–792.)
• “[Strict] liability has been imposed on ‘keepers of lions and tigers, bears,
elephants, wolves [and] monkeys.’ ” (Rosenbloom v. Hanour Corp. (1998) 66
Cal.App.4th 1477, 1479, fn. 1 [78 Cal.Rptr.2d 686].)
• “The owner of a naturally dangerous animal may be excused from the usual
duty of care: ‘In cases involving “primary assumption of risk”—where, by
virtue of the nature of the activity and the parties’ relationship to the activity,
the defendant owes no legal duty to protect the plaintiff from the particular risk
of harm that caused the injury—the doctrine . . . operates as a complete bar to
the plaintiff’s recovery.’ ” (Rosenbloom, supra, 66 Cal.App.4th at p. 1479,
internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1403
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.23 (Matthew Bender)
1 California Civil Practice: Torts §§ 2:20–2:21 (Thomson Reuters)
355
owner of a domestic animal that bites or injures another person knew or had
reason to know of the animal’s vicious propensities. If [defendant] knew or
should have known of his dog’s vicious propensities and failed to inform
[plaintiff] of such facts, he could be found to have exposed [plaintiff] to an
unknown risk and thereby be held strictly liable at common law for her injuries.
Under such circumstances, the defense of primary assumption of risk would not
bar [plaintiff]’s claim since she could not be found to have assumed a risk of
which she was unaware.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115–1116
[47 Cal.Rptr.3d 553, 140 P.3d 848], original italics, internal citations omitted.)
• “The doctrine of strict liability for harm done by animals has developed along
two separate and independent lines: (1) Strict liability for damages by
trespassing livestock, and (2) strict liability apart from trespass (a) for damages
by animals of a species regarded as inherently dangerous, and (b) for damages
by animals of a species not so regarded but which, in the particular case,
possess dangerous propensities which were or should have been known to the
possessor.” (Thomas, supra, 206 Cal.App.4th at p. 665.)
• “California has long followed the common law rule of strict liability for harm
done by a domestic animal with known vicious or dangerous propensities
abnormal to its class.” (Drake v. Dean (1993) 15 Cal.App.4th 915, 921 [19
Cal.Rptr.2d 325].)
• Any propensity that is likely to cause injury under the circumstances is a
dangerous or vicious propensity within the meaning of the law. (Talizin v. Oak
Creek Riding Club (1959) 176 Cal.App.2d 429, 437 [1 Cal.Rptr. 514].)
• The question of whether a domestic animal is vicious or dangerous is ordinarily
a factual one for the jury. (Heath v. Fruzia (1942) 50 Cal.App.2d 598, 601 [123
P.2d 560].)
• “ ‘The gist of the action is not the manner of keeping the vicious animal, but
the keeping him at all with knowledge of the vicious propensities. In such
instances the owner is an insurer against the acts of the animal, to one who is
injured without fault, and the question of the owner’s negligence is not in the
case.’ ” (Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626 [283 P.2d 1033],
internal citations omitted.)
• “The absolute duty to restrain the dog could not be invoked unless the jury
found, not only that the dog had the alleged dangerous propensity, but that
defendants knew or should have known that it had.” (Hillman, supra, 44 Cal.2d
at p. 628.)
• “[N]egligence may be predicated on the characteristics of the animal which,
although not abnormal to its class, create a foreseeable risk of harm. As to those
characteristics, the owner has a duty to anticipate the harm and to exercise
ordinary care to prevent the harm.” (Drake, supra, 15 Cal.App.4th at p. 929.)
• “ ‘It is well settled in cases such as this (the case involved a bull) that the
owner of an animal, not naturally vicious, is not liable for an injury done by it,
357
unless two propositions are established: 1. That the animal in fact was vicious,
and 2. That the owner knew it.” (Mann v. Stanley (1956) 141 Cal.App.2d 438,
441 [296 P.2d 921].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1414–1427
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 3.3–3.6
1 Levy et al., California Torts, Ch. 6, Strict Liability for Injuries Caused by
Animals, §§ 6.01–6.10 (Matthew Bender)
3 California Forms of Pleading and Practice, Ch. 23, Animals: Civil Liability,
§ 23.33 (Matthew Bender)
1 California Civil Practice: Torts, §§ 2:20–2:21 (Thomson Reuters West)
358
360
New September 2003; Revised April 2004, October 2008, April 2009, December
2011, December 2013; Revised and Renumbered From CACI No. 408 May 2017;
Revised May 2018
Directions for Use
This instruction sets forth a plaintiff’s response to the affirmative defense of
primary assumption of risk asserted by a defendant who was a coparticipant in the
sport or other recreational activity. For an instruction applicable to coaches,
instructors, or trainers, see CACI No. 471, Primary Assumption of Risk—Exception
to Nonliability—Instructors, Trainers, or Coaches. For an instruction applicable to
facilities owners and operators and to event sponsors, see CACI No. 472, Primary
Assumption of Risk—Exception to Nonliability—Facilities Owners and Operators
and Event Sponsors. For an instruction applicable to occupations with inherent risk,
see CACI No. 473, Primary Assumption of Risk—Exception to
Nonliability—Occupation Involving Inherent Risk.
Primary assumption of risk generally absolves the defendant of a duty of care
toward the plaintiff with regard to injury incurred in the course of a sporting or
other recreational activity covered by the doctrine. (See Knight v. Jewett (1992) 3
361
Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834 P.2d 696].) Element 1 sets forth the
exceptions in which there is a duty.
While duty is generally a question of law, some courts have held that whether the
defendant has increased the risk beyond those inherent in the sport or activity is a
question of fact for the jury. (See Luna v. Vela (2008) 169 Cal.App.4th 102,
112–113 [86 Cal.Rptr.3d 588] and cases cited therein, including cases contra.)
There may also be disputed facts that must be resolved by a jury before it can be
determined if the doctrine applies. (See Shin v. Ahn (2007) 42 Cal.4th 482, 486 [64
Cal.Rptr.3d 803, 165 P.3d 581].)
Sources and Authority
• “Primary assumption of risk arises where a plaintiff voluntarily participates in
an activity or sport involving certain inherent risks; primary assumption of risk
. . . bar[s] recovery because no duty of care is owed as to such risks.”
(Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11 [45
Cal.Rptr.2d 855], internal citations omitted.)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply
to skateboarding”]; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 540 [220
Cal.Rptr.3d 556] [horseback riding is an inherently dangerous sport]; Foltz v.
Johnson (2017) 16 Cal.App.5th 647, 656–657 [224 Cal.Rptr.3d 506] [off-road
dirt bike riding].)
• “A coparticipant in an active sport ordinarily bears no liability for an injury
resulting from conduct in the course of the sport that is merely careless or
negligent.” (Ford v. Gouin (1992) 3 Cal.4th 339, 342 [11 Cal.Rptr.2d 30, 834
P.2d 724].)
• “[W]e conclude that a participant in an active sport breaches a legal duty of
care to other participants—i.e., engages in conduct that properly may subject
him or her to financial liability—only if the participant intentionally injures
another player or engages in conduct that is so reckless as to be totally outside
the range of the ordinary activity involved in the sport.” (Knight, supra, 3
Cal.4th at p. 320.)
• “The Knight rule, however, ‘does not grant unbridled legal immunity to all
defendants participating in sporting activity. The Supreme Court has stated that
“it is well established that defendants generally do have a duty to use due care
not to increase the risks to a participant over and above those inherent in the
sport.” Thus, even though “defendants generally have no legal duty to eliminate
(or protect a plaintiff against) risks inherent in the sport itself,” they may not
362
risks inherent in many activities are not subject to reasonable dispute (e.g.,
being hit with a baseball during a game), the risks inherent in some activities
are not commonly known. In such cases, expert testimony may be required
‘ “for purposes of weighing whether the inherent risks of the activity were
increased by the defendant’s conduct.” ’ Thus, it is not entirely accurate to say
inherent risks of an activity always present purely legal questions, because
sometimes the nature of an activity and its risks must be gleaned from the
evidence.” (Jimenez, supra, 247 Cal.App.4th at p. 608, original italics, internal
citations omitted.)
• “[Plaintiff] has repeatedly argued that primary assumption of the risk does not
apply because she did not impliedly consent to having a weight dropped on her
head. However, a plaintiff’s expectation does not define the limits of primary
assumption of the risk. ‘Primary assumption of risk focuses on the legal
question of duty. It does not depend upon a plaintiff’s implied consent to injury,
nor is the plaintiff’s subjective awareness or expectation relevant. . . . .’ ”
(Cann v. Stefanec (2013) 217 Cal.App.4th 462, 471 [158 Cal.Rptr.3d 474].)
• “Primary assumption of the risk does not depend on whether the plaintiff
subjectively appreciated the risks involved in the activity; instead, the focus is
an objective one that takes into consideration the risks that are ‘ “inherent” ’ in
the activity at issue.” (Swigart, supra, 13 Cal.App.5th at p. 538.)
• “A jury could find that, by using a snowboard without the retention strap, in
violation of the rules of the ski resort and a county ordinance, defendant
unnecessarily increased the danger that his snowboard might escape his control
and injure other participants such as plaintiff. The absence of a retention strap
could therefore constitute conduct not inherent to the sport which increased the
risk of injury.” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 829 [89
Cal.Rptr.2d 519].)
• “The existence and scope of a defendant’s duty depends on the role that
defendant played in the activity. Defendants were merely the hosts of a social
gathering at their cattle ranch, where [plaintiff] asked to ride one of their
horses; they were not instructors and did not assume any of the responsibilities
of an instructor.” (Levinson, supra, 176 Cal.App.4th at pp. 1550–1551, internal
citation omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Whether a duty exists ‘does not turn on the reasonableness or
unreasonableness of the plaintiff’s conduct, but rather on [(1)] the nature of the
activity or sport in which the defendant is engaged and [(2)] the relationship of
the defendant and the plaintiff to that activity or sport.’ It is the ‘nature of the
365
activity’ and the parties’ relationship to it that determines whether the doctrine
applies—not its characterization as a sporting event.” (McGarry v. Sax (2008)
158 Cal.App.4th 983, 999–1000 [70 Cal.Rptr.3d 519], internal citations
omitted.)
• “[T]o the extent that ‘ “ ‘a plaintiff unreasonably undertakes to encounter a
specific known risk imposed by a defendant’s negligence,’ ” ’ he or she is
subject to the defense of comparative negligence but not to an absolute defense.
This type of comparative negligence has been referred to as ‘ “secondary
assumption of risk.” ’ Assumption of risk that is based upon the absence of a
defendant’s duty of care is called ‘ “primary assumption of risk.” ’ ‘First, in
“primary assumption of risk” cases—where the defendant owes no duty to
protect the plaintiff from a particular risk of harm—a plaintiff who has suffered
such harm is not entitled to recover from the defendant, whether the plaintiff’s
conduct in undertaking the activity was reasonable or unreasonable. Second, in
“secondary assumption of risk” cases—involving instances in which the
defendant has breached the duty of care owed to the plaintiff—the defendant is
not entitled to be entirely relieved of liability for an injury proximately caused
by such breach, simply because the plaintiff’s conduct in encountering the risk
of such an injury was reasonable rather than unreasonable.’ ” (Kindrich v. Long
Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1259 [84 Cal.Rptr.3d 824],
original italics, internal citations omitted.)
• “Even were we to conclude that [plaintiff]’s decision to jump off the boat was a
voluntary one, and that therefore he assumed a risk inherent in doing so, this is
not enough to provide a complete defense. Because voluntary assumption of
risk as a complete defense in a negligence action was abandoned in Li v. Yellow
Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226], only
the absence of duty owed a plaintiff under the doctrine of primary assumption
of risk would provide such a defense. But that doctrine does not come into play
except when a plaintiff and a defendant are engaged in certain types of
activities, such as an ‘active sport.’ That was not the case here; plaintiff was
merely the passenger on a boat. Under Li, he may have been contributorily
negligent but this would only go to reduce the amount of damages to which he
is entitled.” (Kindrich, supra, 167 Cal.App.4th at p. 1258.)
• “Though most cases in which the doctrine of primary assumption of risk exists
involve recreational sports, the doctrine has been applied to dangerous activities
in other contexts (see, e.g., Saville v. Sierra College (2005) 133 Cal.App.4th
857 [36 Cal.Rptr.3d 515] [training in peace officer takedown maneuvers];
Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012 [2
Cal.Rptr.3d 168] [training on physical restraint methods]; Aaris v. Las Virgenes
Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal.Rptr.2d 801] [practice
of cheerleader routines]; Bushnell [v. Japanese-American Religious & Cultural
Center], 43 Cal.App.4th 525 [50 Cal.Rptr.2d 671] [practice of moves in judo
class]; and Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [53
Cal.Rptr.2d 713] [injury to nurse’s aide by nursing home patient]).” (McGarry,
366
367
New September 2003; Revised April 2004, June 2012, December 2013; Revised
and Renumbered From CACI No. 409 May 2017
Directions for Use
This instruction sets forth a plaintiff’s response to a defendant’s assertion of the
affirmative defense of primary assumption of risk. Primary assumption of risk
generally absolves the defendant of a duty of care toward the plaintiff with regard
to injury incurred in the course of a sporting or other recreational activity covered
by the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 [11 Cal.Rptr.2d 2,
834 P.2d 696].)
There are exceptions, however, in which there is a duty of care. Use the first option
for element 2 if it is alleged that the coach or trainer intended to cause the
student’s injury or engaged in conduct totally outside the range of the ordinary
activity involved in teaching or coaching the sport or activity. Use the second
option if it is alleged that the coach’s or trainer’s failure to use ordinary care
increased the risk of injury to the plaintiff, for example, by encouraging or
allowing him or her to participate in the sport or activity when he or she was
physically unfit to participate or by allowing the plaintiff to use unsafe equipment
or instruments. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845 [120
368
Cal.Rptr.3d 90].) If the second option is selected, also give CACI No. 400,
Negligence—Essential Factual Elements.
While duty is a question of law, courts have held that whether the defendant has
unreasonably increased the risk is a question of fact for the jury. (See Luna v. Vela
(2008) 169 Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited
therein].) There may also be disputed facts that must be resolved by a jury before it
can be determined if the doctrine applies. (See Shin v. Ahn (2007) 42 Cal.4th 482,
486 [64 Cal.Rptr.3d 803, 165 P.3d 581].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 470, Primary Assumption of Risk—Exception to
Nonliability—Coparticipant in Sport or Other Recreational Activity. For an
instruction on primary assumption of risk applicable to facilities owners and
operators and to event sponsors, see CACI No. 472, Primary Assumption of
Risk—Exception to Nonliability—Facilities Owners and Operators and Event
Sponsors. For an instruction applicable to occupations with inherent risk, see CACI
No. 473, Primary Assumption of Risk—Exception to Nonliability—Occupation with
Inherent Risk.
Sources and Authority
• “In order to support a cause of action in cases in which it is alleged that a
sports instructor has required a student to perform beyond the student’s capacity
or without providing adequate instruction, it must be alleged and proved that
the instructor acted with intent to cause a student’s injury or that the instructor
acted recklessly in the sense that the instructor’s conduct was ‘totally outside
the range of the ordinary activity’ involved in teaching or coaching the sport.”
(Kahn v. East Side Union High School District (2003) 31 Cal.4th 990, 1011 [4
Cal.Rptr.3d 103, 75 P.3d 30], internal citation omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply
to skateboarding”].)
• “Here, we do not deal with the relationship between coparticipants in a sport, or
with the duty that an operator may or may not owe to a spectator. Instead, we
369
deal with the duty of a coach or trainer to a student who has entrusted himself
to the former’s tutelage. There are precedents reaching back for most of this
century that find an absence of duty to coparticipants and, often, to spectators,
but the law is otherwise as applied to coaches and instructors. For them, the
general rule is that coaches and instructors owe a duty of due care to persons in
their charge. The coach or instructor is not, of course, an insurer, and a student
may be held to notice that which is obvious and to ask appropriate questions.
But all of the authorities that comment on the issue have recognized the
existence of a duty of care.” (Tan v. Goddard (1993) 13 Cal.App.4th 1528,
1535–1536 [17 Cal.Rptr.2d 89], internal citations omitted.)
• “[D]ecisions have clarified that the risks associated with learning a sport may
themselves be inherent risks of the sport, and that an instructor or coach
generally does not increase the risk of harm inherent in learning the sport
simply by urging the student to strive to excel or to reach a new level of
competence.” (Kahn, supra, 31 Cal.4th at p. 1006.)
• “To the extent a duty is alleged against a coach for ‘pushing’ and/or
‘challenging’ a student to improve and advance, the plaintiff must show that the
coach intended to cause the student’s injury or engaged in reckless
conduct—that is, conduct totally outside the range of the ordinary activity
involved in teaching or coaching the sport. Furthermore, a coach has a duty of
ordinary care not to increase the risk of injury to a student by encouraging or
allowing the student to participate in the sport when he or she is physically
unfit to participate or by allowing the student to use unsafe equipment or
instruments.” (Eriksson, supra, 191 Cal.App.4th at p. 845, internal citation
omitted.)
• “That an instructor might ask a student to do more than the student can manage
is an inherent risk of the activity. Absent evidence of recklessness, or other risk-
increasing conduct, liability should not be imposed simply because an instructor
asked the student to take action beyond what, with hindsight, is found to have
been the student’s abilities. To hold otherwise would discourage instructors from
requiring students to stretch, and thus to learn, and would have a generally
deleterious effect on the sport as a whole.” (Honeycutt v. Meridian Sports Club,
LLC (2014) 231 Cal.App.4th 251, 258 [179 Cal.Rptr.3d 473].)
• Coaches and sports instructors “owe students a duty ‘not to increase the risks
inherent in the learning process undertaken by the student.’ But this does not
require them to ‘fundamentally alter the nature of the sport and, in some
instances, effectively preclude participation altogether . . . .’ Instead, ‘[b]y
choosing to participate in a sport that poses the obvious possibility of injury, the
student athlete must learn to accept an adverse result of the risks inherent in the
sport.’ ” (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436–1437
[89 Cal.Rptr.2d 920], internal citations omitted.)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question
of law and based on the general characteristics of the sport activity and the
parties’ relationship to it.” (Griffın v. The Haunted Hotel, Inc. (2015) 242
370
372
New December 2013; Revised and Renumbered From CACI No. 410 May 2017
Directions for Use
This instruction sets forth a plaintiff’s response to a defendant’s assertion of the
affirmative defense of primary assumption of risk. Primary assumption of risk
generally absolves the defendant of a duty of care toward the plaintiff with regard
to injury incurred in the course of a sporting or other recreational activity covered
by the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 [11 Cal.Rptr.2d 2,
834 P.2d 696].) There is, however, a duty applicable to facilities owners and
operators and to event sponsors not to unreasonably increase the risks of injury to
participants and spectators beyond those inherent in the activity. (See Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162 [150 Cal.Rptr.3d 551, 290 P.3d
1158] [participants]; Lowe v. California League of Prof. Baseball (1997) 56
Cal.App.4th 112, 123 [65 Cal.Rptr.2d 105] [spectators].)
While duty is a question of law, courts have held that whether the defendant has
increased the risk is a question of fact for the jury. (See Luna v. Vela (2008) 169
Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited therein].) There
may also be disputed facts that must be resolved by a jury before it can be
determined if the doctrine applies. (See Shin v. Ahn (2007) 42 Cal.4th 482, 486 [64
Cal.Rptr.3d 803, 165 P.3d 581].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 470, Primary Assumption of Risk—Exception to
373
question which depends on the nature of the sport or activity . . . and on the
parties’ general relationship to the activity, and is an issue to be decided by the
court, rather than the jury.” ’ This statement of the rule is correct where there is
no dispute about the inherent risks, and such cases may be resolved on
summary judgment. [¶] However this statement is overly broad. Although the
risks inherent in many activities are not subject to reasonable dispute (e.g.,
being hit with a baseball during a game), the risks inherent in some activities
are not commonly known. In such cases, expert testimony may be required
‘ “for purposes of weighing whether the inherent risks of the activity were
increased by the defendant’s conduct.” ’ . . . Thus, it is not entirely accurate to
say inherent risks of an activity always present purely legal questions, because
sometimes the nature of an activity and its risks must be gleaned from the
evidence.” (Jimenez, supra, 247 Cal.App.4th at p. 608, original italics, internal
citations omitted.)
• “Although we recognize the Court of Appeal decisions specifically addressing
the point are in conflict, we believe resolving this issue is not a matter of
further defining [defendant]’s duty, which would be a question of law for the
court. Rather, it requires application of the governing standard of care (the duty
not to increase the risks inherent in the sport) to the facts of this particular
case—the traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski
Co., supra, 118 Cal.App.4th at pp. 591–592 [whether defendant’s design of
snowboard jump increased inherent risks of snowboarding is question for jury];
Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial
jumps built by resort increased inherent risk of falling while skiing is question
for jury]; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th
112, 123 [65 Cal.Rptr.2d 105] [whether distraction caused by activities of minor
league baseball team’s mascot increased inherent risk of spectator being hit by a
foul ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra,
138 Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84
Cal.App.4th 975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court
to determine whether defendant’s conduct increased the risk inherent in
participating in a particular sport, but that trial court may receive expert
testimony on the customary practices in the sport to make that determination].)
[¶] Our conclusion it is for the trier of fact to determine whether [defendant]
breached his limited duty not to increase the risks inherent in the sport of
volleyball finds solid support in the Supreme Court’s most recent sports injury,
primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a
case that postdates the appellate court decisions suggesting the issue is one for
375
uninvolved with and unconnected to the sport,’ . . . who neither ‘held out their
driveway as an appropriate place to skateboard or in any other way represented
that the driveway was a safe place for skateboarding.’ ” (Bertsch, supra, 247
Cal.App.4th at pp. 1208−1209, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1339, 1340,
1343–1350
Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating
Factors In Reduction Of Damages, ¶¶ 3:234–3:254.30 (The Rutter Group)
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.31 (Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 et seq.
(Matthew Bender)
377
increased the risk is a question of fact for the jury. (See Luna v. Vela (2008) 169
Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited therein].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 470, Primary Assumption of Risk—Exception to
Nonliability—Coparticipant in Sport or Other Recreational Activity. For an
instruction applicable to coaches, instructors, or trainers, see CACI No. 471,
Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or
Coaches. For an instruction applicable to facilities owners and operators and to
event sponsors, see CACI No. 472, Primary Assumption of Risk—Exception to
Nonliability—Facilities Owners and Operators and Event Sponsors.
Sources and Authority
• “Primary assumption of risk cases often involve recreational activity, but the
doctrine also governs claims arising from inherent occupational hazards. The
bar against recovery in that context first developed as the ‘firefighter’s rule,’
which precludes firefighters and police officers from suing members of the
public for the conduct that makes their employment necessary. After Knight, we
have viewed the firefighter’s rule ‘not . . . as a separate concept,’ but as a
variant of primary assumption of risk, ‘an illustration of when it is appropriate
to find that the defendant owes no duty of care.’ Whether a duty of care is
owed in a particular context depends on considerations of public policy, viewed
in light of the nature of the activity and the relationship of the parties to the
activity.” (Gregory, supra, 59 Cal. 4th at pp. 1001–1002, internal citations
omitted.)
• “The firefighter’s rule, upon which the [defendant] relies, and the analogous
veterinarian’s rule, are examples of the primary assumption of risk doctrine
applied in the employment context.” (Moore v. William Jessup University (2015)
243 Cal.App.4th 427, 435 [197 Cal.Rptr.3d 51].)
• “Our holding does not preclude liability in situations where caregivers are not
warned of a known risk, where defendants otherwise increase the level of risk
beyond that inherent in providing care, or where the cause of injury is unrelated
to the symptoms of [Alzheimers] disease.” (Gregory, supra, 59 Cal.4th at p.
1000.)
• “[T]he principle of assumption of risk, which forms the theoretical basis for the
fireman’s rule, is not applicable where a fireman’s injuries are proximately
caused by his being misled as to the nature of the danger to be confronted.”
(Lipson v. Superior Court (1982) 31 Cal.3d 362, 371 [182 Cal. Rptr. 629, 644
P.2d 822].)
• “The firefighter’s rule, however, is hedged about with exceptions. The firefighter
does not assume every risk of his or her occupation. The rule does not apply to
conduct other than that which necessitated the summoning of the firefighter or
police officer, and it does not apply to independent acts of misconduct that are
committed after the firefighter or police officer has arrived on the scene.”
(Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [34 Cal. Rptr.
379
380
381
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
382
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
384
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
385
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
3. If [name of plaintiff] has proved any damages, then answer
question 4. If [name of plaintiff] has not proved any damages,
then stop here, answer no further questions, and have the
presiding juror sign and date this form.
4. Was [name of plaintiff] negligent?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If
you answered no, insert the number zero next to [name of
plaintiff]’s name in question 8, skip question 5, and answer
question 6.
5. Was [name of plaintiff]’s negligence a substantial factor in
causing [his/her] harm?
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If
you answered no, insert the number zero next to [name of
plaintiff]’s name in question 8 and answer question 6.
6. Was [name/description of first nonparty] negligent?
6. Yes No
6. Was [name/description of second nonparty] negligent?
6. Yes No
387
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
388
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016
Directions for Use
This verdict form is based on CACI No. 400, Negligence—Essential Factual
Elements, CACI No. 405, Comparative Fault of Plaintiff, and CACI No. 406,
Apportionment of Responsibility.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
This verdict form is designed for a single plaintiff, multiple defendants, and
multiple nonparties who are alleged to have been negligent. If there are multiple
plaintiffs, consider preparing a separate verdict form for each. If a coplaintiff is
alleged to have been negligent and that coplaintiff’s negligence is alleged to have
harmed the plaintiff, treat the allegedly negligent coplaintiff as a nonparty in
questions 6 and 7 and add his or her name to the list of contributing persons in
question 8 of the plaintiff’s verdict form.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
389
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, April 2009, December 2010,
December 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 408, Primary Assumption of
Risk—Liability of Coparticipant in Sport or Other Recreational Activity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form is based on CACI No. 408, Primary Assumption of
Risk—Liability of Coparticipant in Sport or Other Recreational Activity.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
391
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2004, April 2007, December 2010, June 2012,
December 2016
Directions for Use
This verdict form is based on CACI No. 409, Primary Assumption of
Risk—Liability of Instructors, Trainers, or Coaches.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
393
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
394
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
396
Signed:
Presiding Juror
398
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010,
December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 422, Providing Alcoholic Beverages to
Obviously Intoxicated Minors.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Omit question 1 if the defendant is a person such as a social host who, though not
required to be licensed, sells alcohol to an obviously intoxicated minor. (See
Ennabe v. Manosa (2014) 58 Cal.4th 697, 711 [168 Cal.Rptr.3d 440, 319 P.3d
201].)
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the comparative fault of the plaintiff is an issue, this form should be modified.
See CACI No. VF-401, Negligence—Single Defendant—Plaintiff’s Negligence at
Issue—Fault of Others Not at Issue, for a model form involving the issue of
comparative fault.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
399
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 460, Strict Liability for Ultrahazardous
Activities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
401
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 462, Strict Liability for Injury Caused by
Domestic Animal With Dangerous Propensities—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
403
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 463, Dog Bite Statute (Civ. Code,
§ 3342)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
405
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
date, omit question 2. If the plaintiff claims that the delayed-discovery rule applies
to save the action, use the first option for question 2. If the plaintiff claims that a
reasonable investigation would not have disclosed the pertinent information before
the limitation date, use the second option for question 2.
The date to be inserted throughout is the applicable limitation period before the
filing date. For example, if the limitation period is two years and the filing date is
August 31, 2007, the date is August 31, 2005.
In question 1, “claimed harm” refers to all of the elements of the cause of action,
which must have occurred before the cause of action accrues and the limitation
period begins. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018,
1029 [98 Cal.Rptr.2d 661].) In some cases, it may be necessary to modify this term
to refer to specific facts that give rise to the cause of action.
The first option for question 2 may be modified to refer to specific facts that the
plaintiff may have known.
407
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-405 December 2015; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 428, Parental Liability (Nonstatutory).
Questions 1 and 3 can be altered to correspond to one or both of the alternative
bracketed option in elements 1 and 3 of CACI No. 428.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
409
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.3
VF-412–VF-499. Reserved for Future Use
410
412
415
New September 2003; Revised October 2004, December 2005, December 2010
Directions for Use
This instruction is intended to apply to nonspecialist physicians, surgeons, and
dentists. The standards of care for nurses, specialists, and hospitals are addressed in
separate instructions. (See CACI No. 502, Standard of Care for Medical
Specialists, CACI No. 504, Standard of Care for Nurses, and CACI No. 514, Duty
of Hospital.)
The second paragraph should be used if the court determines that expert testimony
is necessary to establish the standard of care, which is usually the case. (See Scott
v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542–1543 [111 Cal.Rptr.3d 36].)
If the standard of care is set by statute or regulation, refer to instructions on
negligence per se (CACI Nos. 418–421). (See Galvez v. Frields (2001) 88
Cal.App.4th 1410 [107 Cal.Rptr.2d 50].)
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
Sources and Authority
• “With unimportant variations in phrasing, we have consistently held that a
physician is required to possess and exercise, in both diagnosis and treatment,
that reasonable degree of knowledge and skill which is ordinarily possessed and
exercised by other members of his profession in similar circumstances.”
(Landeros v. Flood (1976) 17 Cal.3d 399, 408 [131 Cal.Rptr. 69, 551 P.2d
389].)
• “The courts require only that physicians and surgeons exercise in diagnosis and
treatment that reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of the medical profession under similar
circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36 [210 Cal.Rptr.
762, 694 P.2d 1134].)
• “[T]he law imposes on individuals a duty to have medical education, training
416
and skill before practicing medicine and that practicing medicine without this
education, training and skill is negligent. . . . [A] breach of that portion of the
standard of care does not, in and of itself, establish actionable malpractice (i.e.,
one cannot recover from a person merely for lacking medical knowledge unless
that lack of medical knowledge caused injury to the plaintiff).” (Hinson v.
Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1119 [267
Cal.Rptr. 503], disapproved on other grounds in Alexander v. Superior Court
(1993) 5 Cal.4th 1218, 1228 [23 Cal.Rptr.2d 397, 859 P.2d 96].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating
to the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
• “Today, ‘neither the Evidence Code nor Supreme Court precedent requires an
expert witness to have practiced in a particular locality before he or she can
render an opinion in an ordinary medical malpractice case.’ ” (Borrayo v. Avery
(2016) 2 Cal.App.5th 304, 310–311 [205 Cal.Rptr.3d 825], original italics.)
• “As a general rule, the testimony of an expert witness is required in every
professional negligence case to establish the applicable standard of care,
whether that standard was met or breached by the defendant, and whether any
negligence by the defendant caused the plaintiff’s damages. A narrow exception
to this rule exists where’ ” ‘. . . the conduct required by the particular
circumstances is within the common knowledge of the layman.’ . . .
[Citations.]” ’ This exception is, however, a limited one. It arises when a foreign
object such as a sponge or surgical instrument, is left in a patient following
surgery and applies only when the plaintiff can invoke the doctrine of res ipsa
loquitur. ‘The “common knowledge” exception is generally limited to situations
in which . . . a layperson “. . . [can] say as a matter of common knowledge
. . . that the consequences of professional treatment were not such as ordinarily
would have followed if due care had been exercised.” . . .’ ” (Scott, supra, 185
Cal.App.4th at pp. 1542–1543, footnote and internal citations omitted.)
• “We have already held upon authority that the failure to remove a sponge from
the abdomen of a patient is negligence of the ordinary type and that it does not
involve knowledge of materia medica or surgery but that it belongs to that class
of mental lapses which frequently occur in the usual routine of business and
commerce, and in the multitude of commonplace affairs which come within the
group of ordinary actionable negligence. The layman needs no scientific
enlightenment to see at once that the omission can be accounted for on no other
417
theory than that someone has committed actionable negligence.” (Ales v. Ryan
(1936) 8 Cal.2d 82, 93 [64 P.2d 409].)
• The medical malpractice standard of care applies to veterinarians. (Williamson v.
Prida (1999) 75 Cal.App.4th 1417, 1425 [89 Cal.Rptr.2d 868].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 933, 934, 971, 975
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.1
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.11 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.42
(Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13,
295.43, 295.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et seq. (Matthew Bender)
418
physician who must conform to the standards of the profession and who must
often make diagnoses and predictions based upon such evaluations. Thus the
judgment of the therapist in diagnosing emotional disorders and in predicting
whether a patient presents a serious danger of violence is comparable to the
judgment which doctors and professionals must regularly render under accepted
rules of responsibility.” (Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d
425, 438 [131 Cal.Rptr. 14, 551 P.2d 334].)
• “[A] psychotherapist or other mental health care provider has a duty to use a
reasonable degree of skill, knowledge and care in treating a patient,
commensurate with that possessed and exercised by others practicing within that
specialty in the professional community.” (Kockelman v. Segal (1998) 61
Cal.App.4th 491, 505 [71 Cal.Rptr.2d 552].)
• “[T]he standard of care for physicians is the reasonable degree of skill,
knowledge and care ordinarily possessed and exercised by members of the
medical profession under similar circumstances. The test for determining
familiarity with the standard of care is knowledge of similar conditions.
Geographical location may be a factor considered in making that determination,
but, by itself, does not provide a practical basis for measuring similar
circumstances. Over 30 years ago, our Supreme Court observed that ‘[t]he
unmistakable general trend . . . has been toward liberalizing the rules relating
to the testimonial qualifications of medical experts.’ ” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 470–471 [71 Cal.Rptr.3d
707], original italics, internal citations omitted.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.2
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, § 30.12, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.85 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.20 et seq. (Matthew Bender)
420
Derived from former CACI No. 503 April 2007; Revised June 2013
Directions for Use
Read this instruction for a Tarasoff cause of action for professional negligence
against a psychotherapist for failure to protect a victim from a patient’s act of
violence after the patient communicated to the therapist a threat against the victim.
(See Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14,
551 P.2d 334].) The liability imposed by Tarasoff is modified by the provisions of
Civil Code section 43.92(a). First read CACI No. 503B, Affırmative
Defense—Psychotherapist’s Communication of Threat to Victim and Law
Enforcement, if the therapist asserts that he or she is immune from liability under
Civil Code section 43.92(b) because he or she made reasonable efforts to
communicate the threat to the victim and to a law enforcement agency.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(a).
• “[T]herapists cannot escape liability merely because [the victim] was not their
patient. When a therapist determines, or pursuant to the standards of his
421
422
Derived from former CACI No. 503 April 2007; Revised June 2013
Directions for Use
Read this instruction for a Tarasoff cause of action for professional negligence
against a psychotherapist (Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425
[131 Cal.Rptr. 14, 551 P.2d 334]) if there is a dispute of fact regarding whether the
defendant made reasonable efforts to communicate to the victim and to a law
enforcement agency a threat made by the defendant’s patient. The therapist is
immune from liability under Tarasoff if he or she makes reasonable efforts to
communicate the threat to the victim and to a law enforcement agency. (Civ. Code,
§ 43.92(b).) CACI No. 503A, Psychotherapist’s Duty to Protect Intended Victim
From Patient’s Threat, sets forth the elements of a Tarasoff cause of action if the
defendant is not immune.
In a wrongful death case, insert the name of the decedent victim where applicable.
Sources and Authority
• Limited Psychotherapist Immunity. Civil Code section 43.92(b).
• Failure to inform a law enforcement agency concerning a homicidal threat made
by a patient against his work supervisor did not abrogate the “firefighter’s rule”
and, therefore, did not render the psychiatrist liable to a police officer who was
subsequently shot by the patient. (Tilley v. Schulte (1999) 70 Cal.App.4th 79,
85–86 [82 Cal.Rptr.2d 497].)
• “When the communication of the serious threat of physical violence is received
by the therapist from a member of the patient’s immediate family and is shared
for the purpose of facilitating and furthering the patient’s treatment, the fact that
the family member is not technically a ‘patient’ is not crucial to the statute’s
purpose.” (Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 817 [15 Cal.Rptr.3d
864].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1050, 1051
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and
Mental Disabilities: Judicial Commitment, Health Services and Civil Rights,
§ 361A.93 (Matthew Bender)
423
11 California Points and Authorities, Ch. 154, Mental Health and Mental
Disabilities, § 154.30 (Matthew Bender)
424
[A/An] [insert type of nurse] is negligent if [he/she] fails to use the level
of skill, knowledge, and care in diagnosis and treatment that other
reasonably careful [insert type of nurses] would use in similar
circumstances. This level of skill, knowledge, and care is sometimes
referred to as “the standard of care.”
[You must determine the level of skill, knowledge, and care that other
reasonably careful [insert type of nurses] would use in similar
circumstances based only on the testimony of the expert witnesses
[including [name of defendant]] who have testified in this case.]
P.2d 665].) Courts have observed that nurses are trained, “but to a lesser degree
than a physician, in the recognition of the symptoms of diseases and injuries.”
(Cooper v. National Motor Bearing Co. (1955) 136 Cal.App.2d 229, 238 [288
P.2d 581].)
• “[E]xpert opinion testimony is required to prove that a defendant nurse did not
meet the standard of care and therefore was negligent, ‘except in cases where
the negligence is obvious to laymen.’ ” (Massey, supra, 180 Cal.App.4th at pp.
694–695.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 995–997
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.52
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.84 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et
seq. (Matthew Bender)
426
428
429
430
Secondary Sources
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.16 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, §§ 175.22,
175.23 (Matthew Bender)
431
432
433
operating surgeon, is under his special supervision and control during the
operation, the relationship of master and servant exists, and the surgeon is
liable, under the doctrine of respondeat superior, for the employee’s
negligence.’ ” (Thomas, supra, 47 Cal.App.4th at pp. 966–967, original italics.)
• This doctrine applies only to medical personnel who are actively participating in
the surgical procedure. (Thomas, supra, 47 Cal.App.4th at pp. 966–967.)
• While the “captain of the ship” doctrine has never been expressly rejected, it
has been eroded by modern courts. “A theory that the surgeon directly controls
all activities of whatever nature in the operating room certainly is not realistic
in present day medical care.” (Truhitte, supra, 128 Cal.App.3d at p. 348,
original italics.)
• “[T]he Truhitte court ignores what we have already recognized as the special
relationship between a vulnerable hospital patient and the surgeon operating on
the patient. A helpless patient on the operating table who cannot understand or
control what is happening reasonably expects a surgeon to oversee her care and
to look out for her interests. We find this special relationship sufficient
justification for the continued application of captain of the ship doctrine.
Moreover, in light of the Supreme Court’s expressions of approval of the
doctrine . . . , we feel compelled to adhere to the doctrine.” (Baumgardner,
supra, 144 Cal.App.4th at pp. 1397–1398, internal citations omitted.)
• Absent evidence of right to control, an operating surgeon is generally not
responsible for the conduct of anesthesiologists or others who independently
carry out their duties. (Seneris v. Haas (1955) 45 Cal.2d 811, 828 [291 P.2d
915]; Marvulli v. Elshire (1972) 27 Cal.App.3d 180, 187 [103 Cal.Rptr. 461].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 976
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.4
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.45 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.25
(Matthew Bender)
435
436
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 977
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.22
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.15, 31.50 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.17 (Matthew Bender)
437
439
441
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 986–989
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-I, Negligence
Liability Based On Omission To Act—Legal Duty Arising From “Special
Relationship”, ¶¶ 2:1911, 2:1982 (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 3-F, MICRA
Provisions Affecting Damages, ¶¶ 3:282.11c, 3:282.11d (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.55–9.64
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.81 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.13
(Matthew Bender)
444
446
A patient must use reasonable care to provide for his or her own well-
being. This includes a responsibility to [follow [a/an] [insert type of
medical practitioner]’s instructions/seek medical assistance] when a
reasonable person in the same situation would do so.
[Name of defendant] claims that [name of plaintiff]’s harm was caused, in
whole or in part, by [name of plaintiff]’s negligence in failing to [follow
[name of defendant]’s instructions/seek medical assistance]. To succeed,
[name of defendant] must prove both of the following:
1. That [name of plaintiff] did not use reasonable care in [following
[name of defendant]’s instructions/seeking medical assistance];
and
2. That [name of plaintiff]’s failure to [follow [name of defendant]’s
instructions/seek medical assistance] was a substantial factor in
causing [his/her] harm.
prudent person determines the right of respondent to recover all of the special
damages, and the implied finding was that respondent was not arbitrary in not
promptly acceding to each suggestion of an operation.” (Dodds v. Stellar (1946)
77 Cal.App.2d 411, 422 [175 P.2d 607].)
• “Negligence, in fact, may often explain why the patient, to begin with, needed
and sought out the physician’s assistance. The health care professional, in this
instance, takes the patient as he finds him. Other than in very rare cases, the
only legitimate application of the doctrine of contributory fault is when it takes
place concurrently with or after the delivery of the practitioner’s care and
treatment.” (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 632 [183
Cal.Rptr.3d 59].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1624
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.66
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.61 (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 295, Hospitals, § 295.14
(Matthew Bender)
448
jury is required to find that the accident resulted from the defendant’s negligence
unless the defendant comes forward with evidence that would support a contrary
finding. (See Cal. Law Revision Com. comment to Evid. Code, § 646.) The last
two paragraphs of the instruction assume that the defendant has presented evidence
that would support a finding that the defendant was not negligent or that any
negligence on the defendant’s part was not a proximate cause of the accident. In
this case, the presumption drops out, and the plaintiff must then prove the elements
of negligence without the benefit of the presumption of res ipsa loquitur. (See
Howe, supra, 189 Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res ipsa loquitur. Evidence Code section 646(c).
• Presumption Affecting Burden of Producing Evidence. Evidence Code section
604.
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption affecting the burden of producing evidence.’ The presumption
arises when the evidence satisfies three conditions: ‘ “(1) the accident must be
of a kind which ordinarily does not occur in the absence of someone’s
negligence; (2) it must be caused by an agency or instrumentality within the
exclusive control of the defendant; (3) it must not have been due to any
voluntary action or contribution on the part of the plaintiff.” ’ A presumption
affecting the burden of producing evidence ‘require[s] the trier of fact to assume
the existence of the presumed fact’ unless the defendant introduces evidence to
the contrary. The presumed fact, in this context, is that ‘a proximate cause of
the occurrence was some negligent conduct on the part of the defendant. . . .’ If
the defendant introduces ‘evidence which would support a finding that he was
not negligent or that any negligence on his part was not a proximate cause of
the occurrence,’ the trier of fact determines whether defendant was negligent
without regard to the presumption, simply by weighing the evidence.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679,
843 P.2d 624], internal citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a
nature that it can be said, in the light of past experience, that it probably was
the result of negligence by someone and that the defendant is probably the one
responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p.
1161, internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’s conduct, permitting a common sense inference of
negligence from the happening of the accident.” (Gicking v. Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
• “All of the cases hold, in effect, that it must appear, either as a matter of
450
common experience or from evidence in the case, that the accident is of a type
which probably would not happen unless someone was negligent.” (Zentz v.
Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442–443 [247 P.2d
344].)
• “In determining the applicability of res ipsa loquitur, courts have relied on both
expert testimony and common knowledge. The standard of care in a
professional negligence case can be proved only by expert testimony unless the
conduct required by the particular circumstances is within the common
knowledge of the layperson.” (Blackwell v. Hurst (1996) 46 Cal.App.4th 939,
943 [54 Cal.Rptr.2d 209], internal citations omitted.)
• “Under the doctrine of res ipsa loquitur and this common knowledge exception,
it is proper to instruct the jury that it can infer negligence from the happening
of the accident itself, if it finds based on common knowledge, the testimony of
physicians called as expert witnesses, and all the circumstances, that the injury
was more likely than not the result of negligence.” (Gannon v. Elliot (1993) 19
Cal.App.4th 1, 6 [23 Cal.Rptr.2d 86], internal citation omitted.)
• “The fact that a particular injury rarely occurs does not in itself justify an
inference of negligence unless some other evidence indicates negligence. To
justify res ipsa loquitur instructions, appellant must have produced sufficient
evidence to permit the jury to make the necessary decision. He must have
presented ‘some substantial evidence which, if believed by the jury, would
entitle it to draw an inference of negligence from the happening of the accident
itself.’ ” (Blackwell, supra, 46 Cal.App.4th at p. 944, internal citations omitted.)
• The purpose of the second “control” requirement is to “link the defendant with
the probability, already established, that the accident was negligently caused.”
(Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d
33].) The control requirement is not absolute. (Zentz, supra, 39 Cal.2d at p.
443.)
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintiff need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” (Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
affecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of
451
negligence or lack of proximate cause that the injury claimed was the result of
that negligence. As a presumption affecting the burden of producing evidence
(as distinguished from a presumption affecting the burden of proof), if evidence
is presented to rebut the presumed fact, the presumption is out of the case—it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of
the accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence sufficient to sustain a finding of the nonexistence of
the presumed fact causes the presumption, as a matter of law, to disappear.’
When the presumptive effect vanishes, it is the plaintiff’s burden to introduce
actual evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” (Howe, supra, 189
Cal.App.4th at p. 1163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive effect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintiff fails to
establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the
jury may be instructed that, even though it does not find that the facts giving
rise to the presumption have been proved by a preponderance of the evidence, it
may nevertheless find the defendant negligent if it concludes from a
consideration of all the evidence that it is more probable than not that the
defendant was negligent.’ ” (Howe, supra, 189 Cal.App.4th at p. 1163, internal
citation omitted.)
• “It follows that where part of the facts basic to the application of the doctrine
of res ipsa loquitur is established as a matter of law but that others are not, the
court should instruct that application of the doctrine by the jury depends only
upon the existence of the basic facts not conclusively established.” (Rimmele v.
Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr.
39].)
Secondary Sources
1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions,
§§ 114–118
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.11[2] (Matthew Bender)
452
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.50
(Matthew Bender)
519–530. Reserved for Future Use
453
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Select either or both of the two bracketed options in the first element depending on
the nature of the case. In a case of a conditional consent in which it is alleged that
the defendant proceeded without the condition having occurred, give CACI No.
530B, Medical Battery—Conditional Consent.
Sources and Authority
• “The California Supreme Court has described the right to consent to medical
treatment as ‘ “basic and fundamental,” ’ ‘intensely individual,’ and ‘broadly
based.’ The same court has also emphasized that excusing the patient from a
judicial proceeding regarding a surgery to be performed over his objection
‘denie[s] fundamental due process.’ It is immaterial that a doctor has said the
treatment is required to save the patient’s life. Rather, ‘ “A doctor might well
believe that an operation or form of treatment is desirable or necessary, but the
law does not permit him to substitute his own judgment for that of the patient
by any form of artifice or deception.” ’ Finally, the patient’s reasons for refusing
are irrelevant. ‘For self-determination to have any meaning, it cannot be subject
to the scrutiny of anyone else’s conscience or sensibilities.’ ” (Stewart v.
Superior Court (2017) 16 Cal.App.5th 87, 105 [224 Cal.Rptr.3d 219], internal
citations omitted.)
• Battery may also be found if a substantially different procedure is performed:
“Where a doctor obtains consent of the patient to perform one type of treatment
and subsequently performs a substantially different treatment for which consent
was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8
454
456
Derived from former CACI No. 530 April 2007; Revised October 2008
Directions for Use
Give this instruction in a case of a conditional consent in which it is alleged that
the defendant proceeded without the condition having occurred. If the claim is that
the defendant proceeded without any consent or deviated from the consent given,
give CACI No. 530A, Medical Battery.
Sources and Authority
• Battery may also be found if a conditional consent is violated: “[I]t is well
recognized a person may place conditions on [his or her] consent. If the actor
exceeds the terms or conditions of the consent, the consent does not protect the
actor from liability for the excessive act.” (Ashcraft v. King (1991) 228
Cal.App.3d 604, 610 [278 Cal.Rptr. 900].)
• Battery is an intentional tort. Therefore, a claim for battery against a doctor as a
violation of conditional consent requires proof that the doctor intentionally
violated the condition placed on the patient’s consent. (Piedra v. Dugan (2004)
123 Cal.App.4th 1483, 1498 [21 Cal.Rptr.3d 36], internal citations omitted.)
• “[T]he reason why CACI No. 530B has an explicit intent and knowledge
requirement and CACI No. 530A does not is clear. The law presumes that
‘[w]hen the patient gives permission to perform one type of treatment and the
doctor performs another, the requisite element of deliberate intent to deviate
from the consent given is present.’ That situation is covered by CACI No.
457
530A. On the other hand, in a case involving conditional consent, the requisite
element of deliberate intent to deviate from the consent given cannot be
presumed simply from the act itself. This is because if the intent element is not
explicitly stated in the instruction, it would be possible for a jury (incorrectly)
to find a doctor liable for medical battery even if it believed the doctor
negligently forgot about the condition precedent.” (Dennis v. Southard (2009)
174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d 559], internal citation omitted.)
• “Our high court has made it clear that battery and lack of informed consent are
separate causes of action. A claim based on lack of informed consent—which
sounds in negligence—arises when the doctor performs a procedure without first
adequately disclosing the risks and alternatives. In contrast, a battery is an
intentional tort that occurs when a doctor performs a procedure without
obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324
[71 Cal.Rptr.3d 469].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 388–635
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11–9.16
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, §§ 415.13, 415.20 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.25 (Matthew
Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.28 et seq. (Matthew Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
458
In this case [name of patient] could not consent to the [insert medical
procedure] because [he/she] was [insert reason—e.g., a minor/incompetent/
unconscious]. In this situation, the law allows [name of authorized person]
to give consent on behalf of [name of patient].
You must decide whether [name of authorized person] consented to the
[insert medical procedure] performed on [name of patient].
459
New September 2003; Revised December 2005, October 2008, June 2014
Directions for Use
This instruction should be read in conjunction with CACI No. 533, Failure to
Obtain Informed Consent—Essential Factual Elements. Do not give this instruction
with CACI No. 530A, Medical Battery, or CACI No. 530B, Medical
Battery—Conditional Consent. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316,
324 [71 Cal.Rptr.3d 469].)
If the patient is a minor or is incapacitated, tailor the instruction accordingly. If a
medical practitioner knows or should know of a patient’s unique concerns or lack
of familiarity with medical procedures, this knowledge may expand the scope of
required disclosures and require additional instructional language. (See Truman v.
Thomas (1980) 27 Cal.3d 285, 291 [165 Cal.Rptr. 308, 611 P.2d 902].)
Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority
• “From the foregoing axiomatic ingredients emerges a necessity, and a resultant
requirement, for divulgence by the physician to his patient of all information
relevant to a meaningful decisional process.” (Cobbs v. Grant (1972) 8 Cal.3d
229, 242 [104 Cal.Rptr. 505, 502 P.2d 1].)
• “ ‘[A] physician has a fiduciary duty to disclose all information material to the
patient’s decision,’ when soliciting a patient’s consent to a medical procedure. A
cause of action premised on a physician’s breach of this fiduciary duty may
460
462
464
466
(1980) 27 Cal.3d 285, 292 [165 Cal.Rptr. 308, 611 P.2d 902], internal citations
omitted.)
• “The duty of reasonable disclosure was expanded in Truman v. Thomas [supra].
There, a doctor recommended that his patient undergo a risk-free diagnostic
procedure but failed to advise her of the risks involved in the failure to follow
his recommendation. The Supreme Court concluded that for a patient to make
an informed choice to decline a recommended procedure the patient must be
adequately advised of the risks of refusing to undergo the procedure. Thus, the
high court extended the duty to make disclosure to include recommended
diagnostic as well as therapeutic procedures and to include situations in which
the patient declines the recommended procedure.” (Vandi v. Permanente
Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1069 [9 Cal.Rptr.2d 463].)
• “In a nutshell, a doctor has a duty to disclose all material information to his
patient which will enable that patient to make an informed decision regarding
the taking or refusal to take such a test.” (Moore v. Preventive Medicine
Medical Group, Inc. (1986) 178 Cal.App.3d 728, 736 [223 Cal.Rptr. 859].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 395, 400–404, 406,
407, 409, 410
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.12
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[2] (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.33 (Matthew Bender)
536–549. Reserved for Future Use
468
469
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 395, 398
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.11
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, § 31.14 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13 (Matthew Bender)
470
[Name of defendant] claims that [he/she] did not have to inform [name of
patient] of the risks of the [insert medical procedure] because [name of
patient] asked not to be told of the risks.
If [name of defendant] has proved that [name of patient] told [him/her]
that [he/she] did not want to be informed of the risks of the [insert
medical procedure], then you must conclude that [name of defendant] was
not negligent in failing to inform [name of patient] of the risks.
471
[Name of defendant] claims that [he/she] did not have to inform [name of
plaintiff] of the risks of [a/an] [insert medical procedure]. [A/An] [insert
type of medical practitioner] is not required to tell a patient about the
dangers of a simple procedure if it is commonly understood that the
dangers are not likely to occur.
If [name of defendant] has proved that [a/an] [insert medical procedure] is
a simple procedure, and that it is commonly understood that any
dangers are not likely to occur, then [name of defendant] was not
required to inform [name of plaintiff] of the risks.
473
[Name of defendant] claims that [he/she] did not have to inform [name of
plaintiff] of the risks of the [insert medical procedure]. [A/An] [insert type
of medical practitioner] does not have to provide information about risks
if the information will so seriously upset the patient that the patient will
not be able to reasonably consider the risks of refusing to have the
medical procedure.
If [name of defendant] has proved that [name of plaintiff] would have
been so seriously upset by being told of the risks that [he/she] would not
have been able to reasonably consider the risks of refusing to have the
[insert medical procedure], then [name of defendant] was not required to
inform [name of plaintiff] of the risks.
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
475
[Name of defendant] claims that [he/she] did not have to obtain [name of
patient/authorized person]’s informed consent to the [insert medical
procedure] because an emergency existed. To succeed, [name of
defendant] must prove both of the following:
1. That [name of defendant] reasonably believed the [insert medical
procedure] had to be done immediately in order to preserve the
life or health of [name of patient]; and
2. That [insert one or more of the following:]
2. [[name of patient] was unconscious] [or]
2. [there was not enough time to inform [name of patient]] [or]
2. [there was not enough time to get consent from an authorized
person].
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Practitioners, §§ 31.14, 31.62 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14
(Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.13[7] (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.38 (Matthew
Bender)
33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and
Directives, § 104.11 (Matthew Bender)
477
(See Samuels v. Mix (1999) 22 Cal.4th 1, 8–10 [91 Cal.Rptr.2d 273, 989 P.2d 701]
[construing structurally similar Code Civ. Proc., § 340.6, on legal malpractice, to
place burden regarding delayed discovery on the defendant and disapproving
Burgon v. Kaiser Foundation Hospitals (1979) 93 Cal.App.3d 813 [155 Cal.Rptr.
763], which had reached the opposite result under Code Civ. Proc., § 340.5].) See
also CACI No. 610, Affırmative Defense—Statute of Limitations—Attorney
Malpractice—One-Year Limit.
Sources and Authority
• Statutes of Limitation for Medical Malpractice. Code of Civil Procedure section
340.5.
• Notice of Intent to Commence Action. Code of Civil Procedure section 364(a).
• 90-Day Extension of Limitation Period. Code of Civil Procedure section 364(d).
• “The one-year limitation period of section 340.5 is a codification of the
discovery rule, under which a cause of action accrues when the plaintiff is
aware, or reasonably should be aware, of ‘injury,’ a term of art which means
‘both the negligent cause and the damaging effect of the alleged wrongful
act.’ ” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290 [170 Cal.Rptr.3d
125].)
• “When a plaintiff has information which would put a reasonable person on
inquiry, when a plaintiff’s “reasonably founded suspicions [have been] aroused”
and the plaintiff has “become alerted to the necessity for investigation and
pursuit of her remedies,” the one-year period commences. “Possession of
‘presumptive’ as well as ‘actual’ knowledge will commence the running of the
statute.” ’ ” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823 [16 Cal.Rptr.2d
714], internal citations omitted.)
• “[W]hen the plaintiff in a medical malpractice action alleges the defendant
health care provider misdiagnosed or failed to diagnose a preexisting disease or
condition, there is no injury for purposes of section 340.5 until the plaintiff first
experiences appreciable harm as a result of the misdiagnosis, which is when the
plaintiff first becomes aware that a preexisting disease or condition has
developed into a more serious one.” (Drexler v. Petersen (2016) 4 Cal.App.5th
1181, 1183–1184 [209 Cal.Rtpr.3d 332].)
• “The fact that [plaintiff] contemplated suing [defendants] is strong evidence that
[plaintiff] suspected the doctors had not properly diagnosed or treated his
headaches. Even with the presence of such suspicions, however, the one-year
and three-year limitations periods did not begin to run until [plaintiff]
discovered his injury—that is, became aware of additional, appreciable harm
from his preexisting condition—and, with respect to the one-year limitations
period, also had reason to believe that injury was caused by the wrongdoing of
[defendants].” (Drexler, supra, 4 Cal.App.5th at p. 1190, internal citation
omitted.)
• “We see no reason to apply the second sentence of section 340.5 to the one-
479
year period it does not mention, in addition to the three-year period it does
mention. The general purpose of MICRA does not require us to expand that
sentence beyond its language.” (Belton v. Bowers Ambulance Serv. (1999) 20
Cal.4th 928, 934 [86 Cal.Rptr.2d 107, 978 P.2d 591] [Code Civ. Proc., § 352.1,
which tolls statutes of limitation for prisoners, applies to extend one-year period
of Code Civ. Proc., § 340.5].)
• “The implications of Belton’s analysis for our case here is inescapable. Like
tolling the statute of limitations for confined prisoners under section 352.1,
tolling under section 351 for a defendant’s absence from California is of general
applicability [and therefore extends the one-year period of Code of Civil
Procedure section 340.5]. (For other general tolling provisions, see § 352
[minors or insanity]; § 352.5 [restitution orders]; § 353.1 [court’s assumption of
attorney’s practice]; § 354 [war]; § 356 [injunction].)” (Kaplan v. Mamelak
(2008) 162 Cal.App.4th 637, 643 [75 Cal.Rptr.3d 861].)
• “[A] plaintiff’s minority as such does not toll the limitations period of section
340.5. When the Legislature added the separate statute of limitations for minors
to section 340.5 in 1975, it clearly intended that the general provision for
tolling of statutes of limitation during a person’s minority (§ 352, subd. (a)(1))
should no longer apply to medical malpractice actions.” (Steketee v. Lintz
(1985) 38 Cal.3d 46, 53 [210 Cal.Rptr 781, 694 P.2d 1153], internal citations
omitted.)
• “Section 340.5 creates two separate statutes of limitations, both of which must
be satisfied if a plaintiff is to timely file a medical malpractice action. First, the
plaintiff must file within one year after she first ‘discovers’ the injury and the
negligent cause of that injury. Secondly, she must file within three years after
she first experiences harm from the injury. This means that if a plaintiff does
not ‘discover’ the negligent cause of her injury until more than three years after
she first experiences harm from the injury, she will not be able to bring a
malpractice action against the medical practitioner or hospital whose
malpractice caused her injury.” (Ashworth v. Mem’l Hosp. (1988) 206
Cal.App.3d 1046, 1054 [254 Cal.Rptr. 104], original italics.)
• “That legislative purpose [re: Code Civ. Proc., § 364] is best effectuated by
construing section 364(d) as tolling the one-year statute of limitations when
section 364(a)’s ninety-day notice of intent to sue is served during, but not
before, the last ninety days of the one-year limitations period. Because the
statute of limitations is tolled for 90 days and not merely extended by 90 days
from the date of service of the notice, this construction results in a period of 1
year and 90 days in which to file the lawsuit. In providing for a waiting period
of at least 90 days before suit can be brought, this construction achieves the
legislative objective of encouraging negotiated resolutions of disputes.” (Woods,
supra, 53 Cal.3d at p. 325.)
• “[I]f the act or omission that led to the plaintiff’s injuries was negligence in the
maintenance of equipment that, under the prevailing standard of care, was
reasonably required to treat or accommodate a physical or mental condition of
480
the patient, the plaintiff’s claim is one of professional negligence under section
340.5. But section 340.5 does not extend to negligence in the maintenance of
equipment and premises that are merely convenient for, or incidental to, the
provision of medical care to a patient.” (Flores v. Presbyterian Intercommunity
Hospital (2016) 63 Cal.4th 75, 88 [201 Cal.Rptr.3d 449, 369 P.3d 229]; see
Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153,
157–162 [222 Cal.Rptr.3d 839] [tripping over scale does not involve provision
of medical care].)
• “[W]hile MICRA is not limited to suits by patients, it ‘applies only to actions
alleging injury suffered as a result of negligence in . . . the provision of
medical care to patients.’ Driving to an accident victim is not the same as
providing medical care to the victim. A paramedic’s exercise of due care while
driving is not ‘necessary or otherwise integrally related to the medical treatment
and diagnosis of the patient”, at least when the patient is not in the vehicle.’ ”
(Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 8 [205 Cal.Rptr.3d 719], internal
citations omitted.)
Secondary Sources
Haning, et al., California Practice Guide: Personal Injury, Ch. 1-B, Initial
Evaluation Of Case: Decision To Accept Or Reject Employment Or Undertake
Further Evaluation Of Claim, ¶ 1:67.1 (The Rutter Group)
Haning, et al., California Practice Guide: Personal Injury, Ch. 5-B, When To
Sue—Statute Of Limitations, ¶ 5:109 (The Rutter Group)
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.26, 9.67–9.72
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical
Professionals, § 31.60 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical
Malpractice, § 415.47 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical
Malpractice, § 175.45 et seq. (Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.27
McDonald, California Medical Malpractice: Law and Practice, §§ 7:1–7:7
(Thomson Reuters)
481
Young (1991) 53 Cal.3d 315, 325–326 [279 Cal.Rptr. 613, 807 P.2d 455]], to
construe Code of Civil Procedure section 364, subdivision (d), as ‘tolling’ the
one-year limitations period also apply to the three-year limitation. Unless the
limitations period is so construed, the legislative purpose of reducing the cost
and increasing the efficiency of medical malpractice litigation by, among other
things, encouraging negotiated resolution of disputes will be frustrated.
Moreover, a plaintiff’s attorney who gives notice within the last 90 days of the
3-year limitations period will confront the dilemma we addressed in Woods, i.e.,
a choice between preserving the plaintiff’s cause of action by violating the 90-
day notice period under Code of Civil Procedure section 364, subdivision
(d)—thereby invoking potential disciplinary proceedings by the State Bar—and
forfeiting the client’s cause of action. In the absence of tolling, the practical
effect of the statute would be to shorten the statutory limitations period from
three years to two years and nine months. As in the case of the one-year
limitation, we discern no legislative intent to do so.” (Russell, supra, 15 Cal.4th
at pp. 789–790.)
• “[T]he ‘no therapeutic or diagnostic purpose or effect’ qualification in section
340.5 means the foreign body exception does not apply to objects and
substances intended to be permanently implanted, but items temporarily placed
in the body as part of a procedure and meant to be removed at a later time do
come within it.” (Maher v. County of Alameda (2014) 223 Cal.App.4th 1340,
1352 [168 Cal.Rptr.3d 56].)
• “[I]f the act or omission that led to the plaintiff’s injuries was negligence in the
maintenance of equipment that, under the prevailing standard of care, was
reasonably required to treat or accommodate a physical or mental condition of
the patient, the plaintiff’s claim is one of professional negligence under section
340.5. But section 340.5 does not extend to negligence in the maintenance of
equipment and premises that are merely convenient for, or incidental to, the
provision of medical care to a patient.” (Flores v. Presbyterian Intercommunity
Hospital (2016) 63 Cal.4th 75, 88 [201 Cal.Rptr.3d 449, 369 P.3d 229]; see
Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153,
157–162 [222 Cal.Rptr.3d 839] [tripping over scale does not involve provision
of medical care].)
• “[W]hile MICRA is not limited to suits by patients, it ‘applies only to actions
alleging injury suffered as a result of negligence in . . . the provision of
medical care to patients.’ Driving to an accident victim is not the same as
providing medical care to the victim. A paramedic’s exercise of due care while
driving is not ‘necessary or otherwise integrally related to the medical treatment
and diagnosis of the patient”, at least when the patient is not in the
vehicle.. . .’ ” (Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 8 [205
Cal.Rptr.3d 719], internal citations omitted.)
• “[W]hen the plaintiff in a medical malpractice action alleges the defendant
health care provider misdiagnosed or failed to diagnose a preexisting disease or
condition, there is no injury for purposes of section 340.5 until the plaintiff first
484
485
486
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 500, Medical Negligence—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
487
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2015, December
2016
Directions for Use
This verdict form is based on CACI No. 533, Failure to Obtain Informed
Consent—Essential Factual Elements, and CACI No. 550, Affırmative
Defense—Plaintiff Would Have Consented.
The special verdict forms in this section are intended only as models. They may
489
490
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2016
492
493
495
negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491
P.2d 433].)
• “Plaintiffs’ argument that CACI No. 600 altered their burden of proof is
misguided in that it assumes that a ‘professional’ standard of care is inherently
different than the standard in ordinary negligence cases. It is not. ‘With respect
to professionals, their specialized education and training do not serve to impose
an increased duty of care but rather are considered additional “circumstances’
relevant to an overall assessment of what constitutes “ordinary prudence” in a
particular situation.’ ‘Since the standard of care remains constant in terms of
“ordinary prudence,” it is clear that denominating a cause of action as one for
“professional negligence” does not transmute its underlying character. For
substantive purposes, it merely serves to establish the basis by which “ordinary
prudence” will be calculated and the defendant’s conduct evaluated.’ ” (LAOSD
Asbestos Cases (2016) 5 Cal.App.5th 1022, 1050 [211 Cal.Rptr.3d 261], internal
citation omitted.)
• “ ‘In addressing breach of duty, “the crucial inquiry is whether [the attorney’s]
advice was so legally deficient when it was given that he [or she] may be found
to have failed to use ‘such skill, prudence, and diligence as lawyers of ordinary
skill and capacity commonly possess and exercise in the performance of the
tasks which they undertake.’ . . .” . . .’ ” (Blanks v. Seyfarth Shaw LLP (2009)
171 Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710].)
• “[I]f the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort.” (Moua v. Pittullo, Howington, Barker, Abernathy, LLP
(2014) 228 Cal.App.4th 107, 112–113 [174 Cal.Rptr.3d 662].)
• “[T]he issue of negligence in a legal malpractice case is ordinarily an issue of
fact.” (Blanks, supra, 171 Cal.App.4th at p. 376.)
• “Plaintiffs argue that ‘laying pipe is not a “profession.” ’ However, case law,
statutes, and secondary sources suggest that the scope of those held to a
‘professional’ standard of care—a standard of care similar to others in their
profession, as opposed to that of a ‘reasonable person’—is broad enough to
encompass a wide range of specialized skills. As a general matter, ‘[t]hose
undertaking to render expert services in the practice of a profession or trade are
required to have and apply the skill, knowledge and competence ordinarily
possessed by their fellow practitioners under similar circumstances, and failure
to do so subjects them to liability for negligence.’ ” (LAOSD Asbestos Cases,
supra, 5 Cal.App.5th at p. 1050.)
• “It is well settled that an attorney is liable for malpractice when his negligent
investigation, advice, or conduct of the client’s affairs results in loss of the
client’s meritorious claim.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [218
Cal.Rptr. 313, 705 P.2d 886].)
• “[A] lawyer holding himself out to the public and the profession as
specializing in an area of the law must exercise the skill, prudence, and
diligence exercised by other specialists of ordinary skill and capacity
497
499
502
possess knowledge of those plain and elementary principles of law which are
commonly known by well informed attorneys, and to discover those additional
rules of law which, although not commonly known, may readily be found by
standard research techniques.” (Smith v. Lewis (1975) 13 Cal.3d 349, 358 [118
Cal.Rptr. 621, 530 P.2d 589], overruled in part on other grounds in In re
Marriage of Brown (1976) 15 Cal.3d 838, 851 [126 Cal.Rptr. 633, 544 P.2d
561].)
• “In order to prevail on this theory and escape a negligence finding, an attorney
must show that there were unsettled or debatable areas of the law that were the
subject of the legal advice rendered and this advice was based upon ‘reasonable
research in an effort to ascertain relevant legal principles and to make an
informed decision as to a course of conduct based upon an intelligent
assessment of the problem.’ ” (Blanks v. Seyfarth Shaw LLP (2009) 171
Cal.App.4th 336, 378–379 [89 Cal.Rptr.3d 710].)
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 326–329
Vapnek et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶ 6:234 (The Rutter Group)
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, §§ 32.11, 32.62
(Matthew Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, § 76.50 (Matthew Bender)
1 California Legal Forms, Ch. 1A, Role of Counsel in Starting a New Business,
§§ 1A.30–1A.32 (Matthew Bender)
504
505
506
or her own wrong. [Citation.] Second, to allow guilty defendants to shift their
punishment to their former attorneys would undermine the criminal justice
system. [Citation.] Third, “a defendant’s own criminal act remains the ultimate
source of his predicament irrespective of counsel’s subsequent negligence.”
[Citation.] Fourth, a guilty defendant who is convicted or given a longer
sentence as a result of counsel’s incompetence can obtain postconviction relief
on that basis; in contrast, “a civil matter lost through an attorney’s negligence is
lost forever.” [Citation.] Fifth, there are formidable practical problems with
criminal malpractice litigation, including the difficulty of quantifying damages
and the complexity of the standard of proof, which must combine the
preponderance of the evidence standard with the reasonable doubt standard
applicable in a criminal trial. [Citation.]’ ” (Khodayari v. Mashburn (2011) 200
Cal.App.4th 1184, 1193 [132 Cal.Rptr.3d 903].)
• “If the defendant has in fact committed a crime, the remedy of a new trial or
other relief is sufficient reparation in light of the countervailing public policies
and considering the purpose and function of constitutional guaranties.” Wiley v.
County of San Diego (1998) 19 Cal.4th 532, 543 [79 Cal.Rptr.2d 672, 966 P.2d
983].)
• “The question of actual innocence is inherently factual. While proof of the
government’s inability to prove guilt may involve technical defenses and
evidentiary rules, proof of actual innocence obliges the malpractice plaintiff ‘to
convince the civil jurors of his innocence.’ Thus, the determination of actual
innocence is rooted in the goal of reliable factfinding.” (Salisbury v. County of
Orange (2005) 131 Cal.App.4th 756, 764–765 [31 Cal.Rptr.3d 831], internal
citations omitted.)
• “[A]n individual convicted of a criminal offense must obtain reversal of his or
her conviction, or other exoneration by postconviction relief, in order to
establish actual innocence in a criminal malpractice action. . . . [P]ublic policy
considerations require that only an innocent person wrongly convicted be
deemed to have suffered a legally compensable harm. Unless a person convicted
of a criminal offense is successful in obtaining postconviction relief, the policies
reviewed in Wiley [supra] preclude recovery in a legal malpractice action.”
(Coscia, supra, 25 Cal.4th at p. 1201.)
• “[A] plaintiff must obtain postconviction relief in the form of a final disposition
of the underlying criminal case—for example, by acquittal after retrial, reversal
on appeal with directions to dismiss the charges, reversal followed by the
People’s refusal to continue the prosecution, or a grant of habeas corpus
relief—as a prerequisite to proving actual innocence in a malpractice action
against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at p.
1205.)
• “[T]he rationale of Wiley and Coscia requires a plaintiff in a criminal legal
malpractice case to show actual innocence and postconviction exoneration on
any guilty finding for a lesser included offense, even though the plaintiff alleges
he received negligent representation only on the greater offense.” (Sangha v.
508
509
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037–1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6,
discovery of the negligent act or omission initiates the statutory period, and the
absence of injury or damages serves as a tolling factor.” (Adams v. Paul (1995)
11 Cal.4th 583, 589, fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal
citations omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute
of limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273,
989 P.2d 701], internal citations omitted.)
• “[D]efendant, if he is to avail himself of the statute’s one-year-from-discovery
limitation defense, has the burden of proving, under the ‘traditional allocation of
the burden of proof’ that plaintiff discovered or should have discovered the
facts alleged to constitute defendant’s wrongdoing more than one year prior to
filing this action.” (Samuels, supra, 22 Cal.4th at pp. 8–9, internal citations
omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “We hold that a cause of action for legal malpractice does not accrue until the
client discovers, or should discover, the facts establishing the elements of his
cause of action.” (Neel, supra, 6 Cal.3d at p. 194.)
• “ ‘[W]here there is a professional relationship, the degree of diligence in
ferreting out the negligence for the purpose of the statute of limitations is
diminished. [Citation.]’ ” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303, 315 [166 Cal.Rptr.3d 116].)
• “If the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort. The mere breach of a professional duty, causing only
nominal damages, speculative harm, or the threat of future harm—not yet
realized—does not suffice to create a cause of action for negligence. Hence,
until the client suffers appreciable harm as a consequence of his attorney’s
negligence, the client cannot establish a cause of action for malpractice.” (Budd
v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal
citations omitted.)
512
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses
a particular phase of such a relationship-representation regarding a specific
subject matter. Moreover, the limitations period is not tolled when an attorney’s
subsequent role is only tangentially related to the legal representation the
attorney provided to the plaintiff. Therefore, “[t]he inquiry is not whether an
attorney-client relationship still exists but when the representation of the specific
matter terminated.” ’ Tolling does not apply where there is a continuing
relationship between the attorney and client ‘involving only unrelated matters.’ ”
(Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1064 [109 Cal.Rptr.3d
392], original italics, internal citations omitted.)
• “[W]here a client hires a law firm to represent it, the provisions of section
340.6 apply to that firm; the term ‘attorney’ in section 340.6 may embrace the
entire partnership, law corporation, or other legal entity the client retains. [¶ ]
That either an attorney or a firm may be the subject of an action does not
support a reading under which representation by one attorney or firm might toll
the limitations period as to another no longer affiliated attorney or firm. Rather,
the text implies an action against a law firm is tolled so long as that firm
continues representation, just as an action against an attorney is tolled so long
as that attorney continues representation, but representation by one attorney or
firm does not toll claims that may exist against a different, unaffiliated attorney
or firm.” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 509
[66 Cal.Rptr.3d 52, 167 P.3d 666], original italics.)
• “ ‘[W]hen an attorney leaves a firm and takes a client with him or her, . . . the
tolling in ongoing matters [does not] continue for claims against the former firm
and partners.’ ” (Stueve Bros. Farms, LLC, supra, 222 Cal.App.4th at p. 314.)
• “ ‘Ordinarily, an attorney’s representation is not completed until the agreed tasks
or events have occurred, the client consents to termination or a court grants an
application by counsel for withdrawal.’ ‘The rule is that, for purposes of the
statute of limitations, the attorney’s representation is concluded when the parties
so agree, and that result does not depend upon formal termination, such as
withdrawing as counsel of record.’ ‘Continuity of representation ultimately
depends, not on the client’s subjective beliefs, but rather on evidence of an
513
circumstances set forth in section 351 [exception, where defendant is out of the
state].” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 569 [107
Cal.Rptr.3d 539].)
• “[A] would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning
of section 352.1 if he or she is serving a term of imprisonment in the state
prison.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [230 Cal.Rptr.3d
528].)
• “In light of the Legislature’s intent that section 340.6(a) cover more than claims
for legal malpractice, the term ‘professional services’ is best understood to
include nonlegal services governed by an attorney’s professional obligations.”
(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 [191 Cal.Rptr.3d 536, 354 P.3d
334].)
• “For purposes of section 340.6(a), the question is not simply whether a claim
alleges misconduct that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed, necessarily depends on
proof that an attorney violated a professional obligation as opposed to some
generally applicable nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p.
1238.)
• “Lee held that ‘section 340.6(a)’s time bar applies to claims whose merits
necessarily depend on proof that an attorney violated a professional obligation
in the course of providing professional services. In this context, a “professional
obligation” is an obligation that an attorney has by virtue of being an attorney,
such as fiduciary obligations, the obligation to perform competently, the
obligation to perform the services contemplated in a legal services contract into
which an attorney has entered, and the obligations embodied in the State Bar
Rules of Professional Conduct.’ ” (Foxen v. Carpenter (2016) 6 Cal.App.5th
284, 292 [211 Cal.Rptr.3d 372].)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 573, 626–655
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.60 (Matthew
Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.05
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, §§ 76.170, 76.430 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.150
(Matthew Bender)
515
• “[W]here, as here, the ‘material facts are undisputed, the trial court can resolve
the matter [of actual injury] as a question of law in conformity with summary
judgment principles.’ ” (Shaoxing City Maolong Wuzhong Down Products, Ltd.,
supra, 238 Cal.App.4th at pp. 1037–1038.)
• “[P]rior to the enactment of section 340.6 the running of the statute of
limitations coincided with accrual of the plaintiff’s malpractice cause of action,
including damages. By contrast, under the provisions of section 340.6,
discovery of the negligent act or omission initiates the statutory period, and the
absence of injury or damages serves as a tolling factor.” (Adams v. Paul (1995)
11 Cal.4th 583, 598 fn. 2 [46 Cal.Rptr.2d 594, 904 P.2d 1205], internal citations
omitted.)
• “[A] defendant must prove the facts necessary to enjoy the benefit of a statute
of limitations.” (Samuels v. Mix (1999) 22 Cal.4th 1, 10 [91 Cal.Rptr.2d 273,
989 P.2d 701], internal citations omitted.)
• “In ordinary tort and contract actions, the statute of limitations, it is true, begins
to run upon the occurrence of the last element essential to the cause of action.
The plaintiff’s ignorance of the cause of action, or of the identity of the
wrongdoer, does not toll the statute. In cases of professional malpractice,
however, postponement of the period of limitations until discovery finds
justification in the special nature of the relationship between the professional
man and his client.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal.3d 176, 187–188 [98 Cal.Rptr. 837, 491 P.2d 421], footnote omitted.)
• “If the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort. The mere breach of a professional duty, causing only
nominal damages, speculative harm, or the threat of future harm—not yet
realized—does not suffice to create a cause of action for negligence. Hence,
until the client suffers appreciable harm as a consequence of his attorney’s
negligence, the client cannot establish a cause of action for malpractice.” (Budd
v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491 P.2d 433], internal
citations omitted.)
• “A plaintiff who is aware of, and has been actually injured by, attorney
malpractice in a matter need not file suit for malpractice while that attorney is
still representing him on the same ‘specific subject matter.’ ” (Shaoxing City
Maolong Wuzhong Down Products, Ltd., supra, 238 Cal.App.4th at p. 1038.)
• “The continuous representation tolling provision in section 340.6, subdivision
(a)(2) ‘was adopted in order to “avoid the disruption of an attorney-client
relationship by a lawsuit while enabling the attorney to correct or minimize an
apparent error, and to prevent an attorney from defeating a malpractice cause of
action by continuing to represent the client until the statutory period has
expired.” ’ ” (Kelly v. Orr (2016) 243 Cal.App.4th 940, 950 [196 Cal.Rptr.3d
901].)
• “The mere existence of an attorney-client relationship does not trigger the
continuous representation rule: ‘Instead, the statute’s tolling language addresses
518
client actually has or reasonably should have no expectation that the attorney
will provide further legal services. . . . That may occur upon the attorney’s
express notification to the client that the attorney will perform no further
services, or, if the attorney remains silent, may be inferred from the
circumstances. Absent actual notice to the client that the attorney will perform
no further legal services or circumstances that reasonably should cause the
client to so conclude, a client should be entitled to rely on an attorney to
perform the agreed services and should not be required to interrupt the attorney-
client relationship by filing a malpractice complaint. After a client has no
reasonable expectation that the attorney will provide further legal services,
however, the client is no longer hindered by a potential disruption of the
attorney-client relationship and no longer relies on the attorney’s continuing
representation, so the tolling should end. To this extent and for these reasons,
we conclude that continuous representation should be viewed objectively from
the client’s perspective . . . .” (Laclette v. Galindo (2010) 184 Cal.App.4th 919,
928 [109 Cal.Rptr.3d 660], original italics.)
• “Continuity of representation ultimately depends, not on the client’s subjective
beliefs, but rather on evidence of an ongoing mutual relationship and of
activities in furtherance of the relationship.” (GoTek Energy, Inc. v. SoCal IP
Law Group, LLP (2016) 3 Cal.App.5th 1240, 1248 [208 Cal.Rptr.3d 428],
original italics.)
• “[T]he fourth tolling provision of section 340.6, subdivision (a)—that is, the
provision applicable to legal and physical disabilities—encompasses the
circumstances set forth in section 351 [exception, where defendant is out of the
state].” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 569 [107
Cal.Rptr.3d 539].)
• “[A] would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning
of section 352.1 if he or she is serving a term of imprisonment in the state
prison.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 597 [230 Cal.Rptr.3d
528].)
• “In light of the Legislature’s intent that section 340.6(a) cover more than claims
for legal malpractice, the term ‘professional services’ is best understood to
include nonlegal services governed by an attorney’s professional obligations.”
(Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 [191 Cal.Rptr.3d 536, 354 P.3d
334].)
• “For purposes of section 340.6(a), the question is not simply whether a claim
alleges misconduct that entails the violation of a professional obligation. Rather,
the question is whether the claim, in order to succeed, necessarily depends on
proof that an attorney violated a professional obligation as opposed to some
generally applicable nonprofessional obligation.” (Lee, supra, 61 Cal.4th at p.
1238.)
• “Lee held that ‘section 340.6(a)’s time bar applies to claims whose merits
necessarily depend on proof that an attorney violated a professional obligation
520
521
523
persons on the highway and must keep his car under such control as will enable
him to avoid a collision; failure to keep such a lookout constitutes negligence.”
(Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519,
524 [113 Cal.Rptr. 277].)
• On the lookout requirement, one court observed: “The driver of an automobile
is bound to use reasonable care to anticipate the presence on the highway of
others who have equal right to be there and the fact that his vision is
temporarily interfered with, either by the glaring sun or headlights, does not
relieve him from that duty.” (Hill v. Peres (1934) 136 Cal.App. 132, 137 [28
P.2d 946], internal citations omitted.)
• On the control requirement, one court observed: “Cases in which the problem
has been presented adhere to the view that a driver must at all times exercise
ordinary care to avoid a collision including swerving or altering his course, in
addition to applying his brakes, if that would be a reasonable means of avoiding
the collision.” (Guyton v. City of Los Angeles (1959) 174 Cal.App.2d 354, 362
[344 P.2d 910].)
• “The age of a minor who operates a motor vehicle will not excuse him from
liability for driving it in a negligent manner, and he will be required to meet the
standard established primarily for adults.” (Prichard v. Veterans Cab Co. (1965)
63 Cal.2d 727, 732 [47 Cal.Rptr. 904, 408 P.2d 360].)
• Drivers with mental disabilities are required to exercise the ordinary care
required of an adult without such disability. (Fox v. City and County of San
Francisco (1975) 47 Cal.App.3d 164, 173 [120 Cal.Rptr. 779].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 4.1–4.5
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.01 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, § 82.10 (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) § 25:22
525
• “Where a car has actually entered an intersection before the other approaches it,
the driver of the first car has the right to assume that he will be given the right
of way and be permitted to pass through the intersection without danger of
collision. He has a right to assume that the driver of the other car will obey the
law, slow down, and yield the right of way, if slowing down be necessary to
prevent a collision.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 508 [208
Cal.Rptr.3d 655].)
• “When, as here, each motorist has acted reasonably and the pedestrian has
failed to exercise due care for her own safety, the law of this state does not
permit the technical violation of the pedestrian’s right of way statute to impose
negligence on the motorists as a matter of law. The statute creates a
preferential, but not absolute, right in favor of the pedestrian who is still under
a duty to exercise ordinary care.” (Byrne v. City and County of San Francisco
(1980) 113 Cal.App.3d 731, 742 [170 Cal.Rptr. 302].)
• “ ‘Even where a right of way is given by statute, if conditions so require it to
avoid injury to others, the right of way must be yielded.’ ” (Bove v. Beckman
(1965) 236 Cal.App.2d 555, 563 [46 Cal.Rptr. 164], internal citation omitted.)
• “Although such a driver may have the right-of-way, he is not absolved of the
duty to exercise ordinary care; may not proceed blindly in disregard of an
obvious danger; and must be watchful of the direction in which danger is most
likely to be apprehended.” (Malone v. Perryman (1964) 226 Cal.App.2d 227,
234 [37 Cal.Rptr. 864].)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1010, 1011
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, § 4.15
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.68 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, §§ 82.10, 82.68 (Matthew Bender)
2 California Civil Practice: Torts § 25:26 (Thomson Reuters)
527
528
The statute just read to you uses the words “immediate hazard.” An
immediate hazard exists if the approaching vehicle is so near or is
approaching so fast that a reasonably careful person would realize that
there is a danger of collision [or accident].
529
The statute just read to you uses the word “hazard.” A “hazard” exists
if any approaching vehicle is so near or is approaching so fast that a
reasonably careful person would realize that there is a danger of a
collision [or accident].
[A driver who is attempting to make a left turn must make sure that no
oncoming vehicles are close enough to be a hazard before he or she
proceeds across each lane.]
530
A driver must use reasonable care when turning [or moving to the right
or to the left].
531
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.63[3][a] (Matthew
Bender)
533
The speed limit where the accident occurred was [insert number] miles
per hour.
The speed limit is a factor to consider when you decide whether or not
[name of plaintiff/name of defendant] was negligent. A driver is not
necessarily negligent just because he or she was driving faster than the
speed limit. However, a driver may be negligent even if he or she was
driving at or below the speed limit.
The maximum speed limit where the accident occurred was [insert
number] miles per hour.
535
The statute just read to you uses the term “under the influence.” A
driver is not necessarily “under the influence” just because he or she
has consumed some alcohol [or drugs]. A driver is “under the influence”
when he or she has consumed an amount of alcohol [or drugs] that
impairs his or her ability to drive in a reasonably careful manner.
certain time is a question of fact for the jury to decide.” (Pittman v. Boiven
(1967) 249 Cal.App.2d 207, 217 [57 Cal.Rptr. 319].)
• Driving while “under the influence” under Vehicle Code sections 23152 and
23153 is not the same as “being under the influence” of a controlled substance
under Health and Safety Code section 11550. Under the Vehicle Code
provisions, “the defendant’s ability to drive must actually be impaired,” while
the Health and Safety Code provision is violated as soon as the influence is
present “in any detectable manner.” (People v. Enriquez (1996) 42 Cal.App.4th
661, 665 [49 Cal.Rptr.2d 710].)
• Courts have also distinguished the “under the influence” standard from the
“obvious intoxication” standard used in Business and Professions Code section
25602.1. (Jones v. Toyota Motor Co. (1988) 198 Cal.App.3d 364, 368 [243
Cal.Rptr. 611]: “ ‘Under the influence’ is defined by a person’s capability to
drive safely, whereas ‘obvious intoxication’ is defined by a person’s
appearance.”)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 883, 884, 886
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.25
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.02[3][b] (Matthew
Bender)
2 California Civil Practice: Torts § 25:28 (Thomson Reuters)
537
539
540
should have used seat belts, if available to him. Second you must determine
with expert testimony the nature of injuries and damages Plaintiff would have
sustained if he had used seat belts.”
• “[Section 27315] permits the civil trial courts to instruct on the existence of the
seat belt statute in appropriate cases, while allowing the jury to decide what
weight, if any, to give the statute in determining the standard of reasonable
care.” (Housley, supra, 4 Cal.App.4th at p. 747.)
• “[N]othing in the statute prohibits a jury from knowing and considering its very
existence when determining the reasonableness of driving without a seat belt.”
(Housley, supra, 4 Cal.App.4th at p. 744.)
• “There was evidence presented that appellant’s failure to wear a seat belt
worsened his injuries. The foreseeability test clearly eliminates this act as a
supervening cause because it is the general likelihood of the type of injury that
must be unforeseeable in order to absolve defendant; the extent of injury need
not be foreseeable.” (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 28 [22
Cal.Rptr.2d 106].)
• “Expert testimony is not always required to prove that failure to use a seat belt
may cause at least some, if not all, of plaintiff’s claimed injuries. [¶] Depending
on the facts of the case, expert testimony may be necessary for the jury to
distinguish the injuries that [plaintiff] unavoidably sustained in the collision
from the injuries he could have avoided if he had worn a seat belt.” (Lara v.
Nevitt (2004) 123 Cal.App.4th 454, 458–459 [19 Cal.Rptr.3d 865], internal
citation omitted.)
• “The seat belt defense does not depend on a Vehicle Code violation nor is it
eviscerated by a Vehicle Code exemption from the requirement to wear seat
belts.” (Lara, supra, 123 Cal.App.4th at p. 461 fn. 3.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) § 4.71
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.05[2] (Matthew
Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, § 82.10 (Matthew Bender)
2 California Civil Practice: Torts § 25:26 (Thomson Reuters West)
713–719. Reserved for Future Use
542
[Name of plaintiff] claims that [he/she] was harmed and that [name of
defendant] is responsible for the harm because [name of defendant] gave
[name of driver] permission to operate the vehicle. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of driver] was negligent in operating the vehicle;
2. That [name of defendant] was an owner of the vehicle at the time
of the injury to [name of plaintiff]; and
3. That [name of defendant], by words or conduct, gave permission
to [name of driver] to use the vehicle.
In determining whether permission was given, you may consider the
relationship between the owner and the operator. [For example, if the
parties are related or the owner and the operator are employer and
employee, such a relationship may support a finding that there was
implied permission to use the vehicle.]
[If the vehicle owner has given a person permission to use the vehicle,
and that person authorizes a third person to operate the vehicle, the
third person may be considered to have used the vehicle with the
permission of the owner.]
Inc. (1961) 57 Cal.2d 43, 51 [17 Cal.Rptr. 828, 367 P.2d 420], internal citations
omitted.)
• “[P]ermission cannot be left to speculation or conjecture nor be assumed, but
must be affirmatively proved, and the fact of permission is just as important to
sustain the imposition of liability as is the fact of ownership.” (Scheff v. Roberts
(1950) 35 Cal.2d 10, 12 [215 P.2d 925], internal citations omitted.)
• “Where the issue of implied permissive use is involved, the general relationship
existing between the owner and the operator, is of paramount importance.
Where, for example, the parties are related by blood, or marriage, or where the
relationship between the owner and the operator is that of principal and agent,
weaker direct evidence will support a finding of such use than where the parties
are only acquaintances or strangers.” (Elkinton v. California State Automobile
Assn., Interstate Insurance Bureau (1959) 173 Cal.App.2d 338, 344 [343 P.2d
396], internal citations omitted.)
• “There is no doubt that the word ‘owner’ as used in [the predecessor to Vehicle
Code section 17150] for the purpose of creating a liability thereunder, is not
synonymous with that word as used in the ordinary sense of referring to a
person or persons whose title is good as against all others. Under the Vehicle
Code there may be several such ‘owners’ at any one time. One or more persons
may be an ‘owner,’ and thus liable for the injuries of a third party, even though
no such ‘owner’ possesses all of the normal incidents of ownership.” (Stoddart
v. Peirce (1959) 53 Cal.2d 105, 115 [346 P.2d 774], internal citation omitted.)
• “The question whether the [defendant] was an owner for purposes of imposition
of liability for negligence [under Vehicle Code section 17150] was one of fact.”
(Campbell v. Security Pacific Nat. Bank (1976) 62 Cal.App.3d 379, 385 [133
Cal.Rptr. 77].)
• “Strict compliance with Vehicle Code section 5602 [regarding the sale or
transfer of a vehicle] is required to enable a transferring owner to escape the
liability imposed by section 17150 on account of an accident occurring before
notice of the transfer is received by the Motor Vehicle Department.” (Laureano
v. Christensen (1971) 18 Cal.App.3d 515, 520–521 [95 Cal.Rptr. 872].)
• “[T]he true and actual owner of an automobile [is not] relieved from liability by
the expedient of registration in the name of another. . . . It is clear that it was
the legislative intent to make the actual owners of automobiles liable for the
negligence of those to whom permission is given to drive them. According to
the allegations of the complaint defendants . . . were in fact the true owners of
the car and had control of it, the registration being in the name of defendant
[driver] for the purpose of avoiding liability.” (McCalla v. Grosse (1941) 42
Cal.App.2d 546, 549–550 [109 P.2d 358].)
• “[I]t is a question of fact in cases of co-ownership, as it is in cases of single
ownership, whether the operation of an automobile is with or without the
consent, express or implied, of an owner who is not personally participating in
such operation. The mere fact of co-ownership does not necessarily or
544
conclusively establish that the common owners have consented to any usage or
possession among themselves of a type for which permission is essential.”
(Krum v. Malloy (1943) 22 Cal.2d 132, 136 [137 P.2d 18].)
• “The immunity of the negligent operator under the [Workers’ Compensation]
Act does not insulate a vehicle owner who is neither the plaintiff’s employer
nor co-employee from liability under section 17150. [¶] Since the owner’s
liability does not arise from the status or liability of the operator, the defenses
applicable to the operator are not available to the owner.” (Galvis v. Petito
(1993) 13 Cal.App.4th 551, 554 [16 Cal.Rptr.2d 560].)
• “The doctrine of ‘negligent entrustment’ is clearly distinguishable from the
theory of ‘vicarious liability.’ Negligent entrustment is a common law liability
doctrine. Conversely, the obligation of a lending owner of an automobile is one
of statutory liability. An owner of an automobile may be independently
negligent in entrusting it to an incompetent driver. California is one of several
states which recognizes the liability of an automobile owner who has entrusted
a car to an incompetent, reckless, or inexperienced driver, and has supplemented
the common law doctrine of negligent entrustment by enactment of a specific
consent statute.” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 538 [55
Cal.Rptr. 741], internal citations omitted.)
• For purposes of liability under the permissive use statute, “[s]ince defendant
[car owner] had the opportunity of making such investigation as he deemed
necessary to satisfy himself as to the identity of the [renter] to whom he
intrusted his automobile, he should not be permitted to escape liability to a third
party because of any fraudulent misrepresentation made by the renter of the car
to him.” (Tuderios v. Hertz Drivurself Stations, Inc. (1945) 70 Cal.App.2d 192,
198 [160 P.2d 554].)
• “[T]he provisions of Proposition 51 do not operate to reduce the liability of
vehicle owners imposed by Vehicle Code section 17150.” (Rashtian v. BRAC-
BH, Inc. (1992) 9 Cal.App.4th 1847, 1849 [12 Cal.Rptr.2d 411].)
• “[I]f the evidence shows that an automobile was being driven by an employee
of the owner at the time of an accident, the jury may infer that the employee
was operating the automobile with the permission of the owner.” (Hicks v. Reis
(1943) 21 Cal.2d 654, 659 [134 P.2d 788], internal quotation marks and
citations omitted.)
• “The mere fact that at the time of an accident one is driving an automobile
belonging to another is not, of itself, sufficient to establish that the former was
driving the car with the permission of the owner.” (Di Rebaylio v. Herndon
(1935) 6 Cal.App.2d 567, 569 [44 P.2d 581].)
• “[I]mplied permission to use an automobile may be found even where the
owner and permittee expressly deny that permission was given.” (Anderson v.
Wagnon (1952) 110 Cal.App.2d 362, 366 [242 P.2d 915].)
• “[I]n determining whether there has been an implied permission, it is not
545
necessary that the owner have prior knowledge that the driver intends to use the
car, but it must be ‘under circumstances from which consent to use the car is
necessarily implied.’ ” (Mucci v. Winter (1951) 103 Cal.App.2d 627, 631 [230
P.2d 22], internal citation omitted.)
• For purposes of statutory vicarious liability, “if the owner entrusts his car to
another he invests him with the same authority to select an operator which the
owner has in the first instance. . . . [¶] . . . The owner is thus liable for
negligent acts by a subpermittee even though the subpermittee operated the
owner’s vehicle with authorization only from the permittee, since the foundation
of the statutory liability is the permission given to another to use an
instrumentality which if improperly used is a danger and menace to the public.”
(Peterson v. Grieger, Inc. (1961) 57 Cal.2d 43, 54 [17 Cal.Rptr. 828, 367 P.2d
420], internal quotation marks and citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1260–1265, 1271
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.28–4.32, 4.37
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.20 (Matthew Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, §§ 82.11, 82.16 (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) §§ 25:44–25:45
546
548
[Name of plaintiff] claims that [he/she] was harmed and that [name of
defendant] is responsible for the harm because [name of defendant] gave
[name of minor] permission to operate the vehicle. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of minor] was negligent in operating the vehicle;
2. That [name of plaintiff] was harmed;
3. That [name of minor]’s negligence was a substantial factor in
causing the harm; and
4. That [name of defendant], by words or conduct, gave [name of
minor] permission to use the vehicle.
550
17707] of the Vehicle Code, the legislature intended to create a limited liability
for imputed negligence against both the owner of an automobile and the signer
of a driver’s license. . . . We must assume the legislature intended to fix a
limited liability . . . for imputed negligence against the owner of an automobile
and the signer of a driver’s license or either of them and that it did not intend
to double that limited liability when the same individual was both the owner of
the machine and the signer of the license.” (Rogers v. Foppiano (1937) 23
Cal.App.2d 87, 92–93 [72 P.2d 239].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1256–1259
California Tort Guide (Cont.Ed.Bar 3d ed.) Automobiles, §§ 4.41, 4.43
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.30[2] (Matthew
Bender)
8 California Forms of Pleading and Practice, Ch. 82, Automobiles: Causes of
Action, § 82.16, Ch. 83, Automobiles: Bringing the Action, § 83.134 (Matthew
Bender)
2 California Civil Practice: Torts § 25:52 (Thomson Reuters)
552
555
• “The effect of Vehicle Code sections 21055 and 21056 is: where the driver of
an authorized emergency vehicle is engaged in a specified emergency function
he may violate certain rules of the road, such as speed and right of way laws, if
he activates his red light and where necessary his siren in order to alert other
users of the road to the situation. In such circumstances the driver may not be
held to be negligent solely upon the violation of specified rules of the road, but
may be held to be negligent if he fails to exercise due regard for the safety of
others under the circumstances. Where the driver of an emergency vehicle fails
to activate his red light, and where necessary his siren, he is not exempt from
the rules of the road even though he may be engaged in a proper emergency
function, and negligence may be based upon the violation of the rules of the
road.” (City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395,
402–403 [182 Cal.Rptr. 443], internal citations omitted.)
• “Notwithstanding [Vehicle Code section 17004], a public entity is liable for
injuries proximately caused by negligent acts or omissions in the operation of
any motor vehicle by an employee of the public entity, acting within the scope
of his or her employment.” (City of San Jose v. Superior Court (1985) 166
Cal.App.3d 695, 698 [212 Cal.Rptr. 661], internal citations omitted.)
• “If the driver of an authorized emergency vehicle is responding to an
emergency call and gives the prescribed warnings by red light and siren, a
charge of negligence against him may not be predicated on his violation of the
designated Vehicle Code sections; but if he does not give the warnings, the
contrary is true; and in the event the charged negligence is premised on conduct
without the scope of the exemption a common-law standard of care is
applicable.” (Grant v. Petronella (1975) 50 Cal.App.3d 281, 286 [123 Cal.Rptr.
399], internal citations omitted.)
• “Where the driver of an emergency vehicle responding to an emergency call
does not give the warnings prescribed by section 21055, the legislative warning
policy expressed in that section dictates the conclusion [that] the common-law
standard of care governing his conduct does not include a consideration of the
emergency circumstances attendant upon his response to an emergency call.”
(Grant, supra, 50 Cal.App.3d at p. 289, footnote omitted.)
• The exemption created by section 21055 is an affirmative defense, and the
defendant must prove compliance with the conditions. (Washington v. City and
County of San Francisco (1954) 123 Cal.App.2d 235, 242 [266 P.2d 828].)
• “In short the statute exempts the employer of such a driver from liability for
negligence attributable to his failure to comply with specified statutory
provisions, but it does not in any manner purport to exempt the employer from
liability due to negligence attributable to the driver’s failure to maintain that
standard of care imposed by the common law.” (Torres v. City of Los Angeles
(1962) 58 Cal.2d 35, 47 [22 Cal.Rptr. 866, 372 P.2d 906].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 297, 331–335
557
558
559
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
560
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
motor vehicles. The four questions here should be incorporated into the verdict
form regarding the underlying case. The special verdict forms in this section are
intended only as models. They may need to be modified depending on the facts of
the case.
This verdict form is based on CACI No. 720, Motor Vehicle Owner
Liability—Permissive Use of Vehicle, and CACI No. 721, Motor Vehicle Owner
Liability—Affırmative Defense—Use Beyond Scope of Permission.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
562
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 722, Adult’s Liability for Minor’s
Permissive Use of Motor Vehicle.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
564
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 723, Liability of Cosigner of Minor’s
Application for Driver’s License.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
566
findings that are required in order to calculate the amount of prejudgment interest.
567
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 724, Negligent Entrustment of Motor
Vehicle. Modify to include elements of negligence instruction against the driver if
plaintiff is suing both driver and owner.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
569
570
571
573
project and the State installs the warning devices using federal funds, [federal
regulations] establish a federal standard for the adequacy of those devices that
displaces state tort law addressing the same subject.” (Norfolk Southern Railway
Co., supra, 529 U.S. at p. 357.)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, § 12.4
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
802. Reserved for Future Use
575
577
579
Railroad companies must post signs or other devices that give the public
reasonable warning of the presence of its tracks. A railroad company
must use reasonable care in the design, installation, operation, and
maintenance of its warning signals and protective systems. The amount
of care that is reasonable depends on the particular characteristics of
each crossing.
created by the presence of the device constitute a trap for persons relying upon
it for protection.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d 866, 869
[180 P.2d 896].)
• “Whatever may be the purpose of maintaining an automatic wig-wag signal at a
railroad crossing, even though it be intended to merely warn travelers of the
approach of trains, common justice demands that it shall be so constructed and
maintained that it will not lure travelers on the highway into danger. It follows
that a company which does maintain such a defective system will be held liable
for injuries sustained as the result of those imperfections, regardless of whether
the system was designed to warn travelers of the approach of trains rather than
to inform them of the danger from stationary cars which block the crossings.”
(Mallett v. Southern Pacific Co. (1937) 20 Cal.App.2d 500, 509 [68 P.2d 281].)
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.8–12.9
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.25[4] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.64
(Matthew Bender)
581
by the railroad with complete disregard for his own safety and recover damages
for injuries sustained by reason of his own failure to use reasonable care.” (Will,
supra, 18 Cal.2d at p. 475.)
• “Violation of the railroad’s statutory duty to sound bell and whistle at a
highway crossing does not absolve a driver from his failure to look and listen
and, if necessitated by circumstances such as obstructed vision, even to stop.”
(Wilkinson, supra, 224 Cal.App.2d at p. 489.)
• “It is settled that a railroad may not encourage persons traveling on highways to
rely on safety devices and then hold them to the same degree of care as if the
devices were not present.” (Startup v. Pacific Electric Ry. Co. (1947) 29 Cal.2d
866, 871 [180 P.2d 896].)
• “When a flagman or mechanical warning device has been provided at a railroad
crossing, the driver of an automobile is thereby encouraged to relax his
vigilance, and, in using other means to discover whether there is danger of
approaching trains, he is not required to exercise the same quantum of care as
would otherwise be necessary.” (Spendlove v. Pacific Electric Ry. Co. (1947) 30
Cal.2d 632, 634 [184 P.2d 873], internal citations omitted.)
• An instruction that a driver must stop, look, and listen when his or her view is
obstructed was held prejudicially erroneous in Anello v. Southern Pacific Co.
(1959) 174 Cal.App.2d 317, 322 [344 P.2d 843].
Secondary Sources
California Tort Guide (Cont.Ed.Bar 3d ed.) Railroad Crossings, §§ 12.10–12.12
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.27 (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads § 485.67
(Matthew Bender)
807–899. Reserved for Future Use
583
585
586
• “[T]he ‘reward’ contemplated by the statutory scheme need not be a fee charged
for the transportation service. The reward may be the profit generated indirectly
by easing customers’ way through the carriers’ premises.” (Huang, supra, 4
Cal.App.5th at p. 339, internal citation omitted.)
• “ ‘[T]he “public” does not mean everyone all of the time; naturally, passengers
are restricted by the type of transportation the carrier affords. [Citations.] “One
may be a common carrier though the nature of the service rendered is
sufficiently specialized as to be of possible use to only a fraction of the total
population.” . . . To be a common carrier, the entity merely must be of the
character that members of the general public may, if they choose, avail
themselves of it.’ ” (Huang, supra, 4 Cal.App.5th at p. 339, internal citation
omitted.)
• “Plaintiff also argues the public policy of protecting passengers of a common
carrier for reward, as expressed in Civil Code section 2100, precludes limiting
defendant’s duty to riders on [bumper cars]. In Gomez v. Superior Court [(2005)
35 Cal.4th 1125, 1136, fn. 5 [29 Cal. Rptr. 3d 352, 113 P.3d 41]], we held that
an operator of a ‘roller coaster or similar amusement park ride can be a carrier
of persons for reward’ for purposes of Civil Code section 2100. At the same
time, however, we expressed no opinion ‘whether other, dissimilar, amusement
rides or attractions can be carriers of persons for reward.’ ” (Nalwa v. Cedar
Fair, L.P. (2012) 55 Cal.4th 1148, 1160 [150 Cal.Rptr.3d 551, 290 P.3d 1158]
[bumper car ride is not common carrier].)
• “In the situation at bar, [defendant]’s motor cars were customarily and daily
cruising the streets for patronage or awaiting calls of the public. It was a
common carrier in transporting such patrons. But when it agreed to act as
carrier of handicapped school children under agreement for its operators to
escort the pupils to and from their schools and homes to the cab and to render
such service exclusively for them at designated hours, the company ceased to
be a common carrier while transporting the specified children during such
hours.” (Hopkins v. Yellow Cab Co. (1952) 114 Cal.App.2d 394, 398 [250 P.2d
330].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 924
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.14
(Matthew Bender)
3 California Points and Authorities, Ch. 33, Carriers, § 33.29 (Matthew Bender)
2 California Civil Practice: Torts §§ 28:1–28:2 (Thomson Reuters)
589
be exercised consistent with the character and mode of conveyance adopted and
the practical operation of the business of the carrier.” (Lopez v. Southern Cal.
Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 [221 Cal.Rptr. 840, 710 P.2d
907], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1055, 1057
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.02 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.32 et seq.
(Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers, § 33.22 (Matthew Bender)
22 California Legal Forms, Ch. 54, Shipment of Property, § 54.32 (Matthew
Bender)
2 California Civil Practice: Torts §§ 28:6–28:9 (Thomson Reuters)
591
593
594
595
While a common carrier must use the highest care for its passengers’
safety, passengers need only use reasonable care for their own safety.
596
A common carrier owes the highest care and vigilance to persons only
while they are passengers. [Name of plaintiff] claims that [he/she] was
[name of defendant]’s passenger at the time of the incident.
To establish that [name of plaintiff] was a passenger, [he/she] must prove
all of the following:
1. That [name of plaintiff] intended to become a passenger;
2. That [name of plaintiff] was accepted as a passenger by [name of
defendant]; and
3. That [name of plaintiff] placed [himself/herself] under the control
of [name of defendant].
To be a passenger, it is not necessary for the person to actually enter the
carrier’s vehicle [or name mode of travel, e.g., bus, train]; however, the
carrier must have taken some action indicating acceptance of the person
as a passenger. A person continues to be a passenger until he or she
safely leaves the carrier’s vehicle [or equipment].
A common carrier must use the highest care and vigilance in providing
its passengers with a safe place to get on and off its vehicles [or
equipment].
598
required degree of care, the carrier has or should have knowledge from which it
may reasonably be apprehended that an assault on a passenger may occur, and
has the ability in the exercise of that degree of care to prevent the injury.”
(Lopez, supra, 40 Cal.3d at p. 791, internal citation omitted.)
• There is no liability when a sudden assault occurs with no warning. (City and
County of San Francisco v. Superior Court (1994) 31 Cal.App.4th 45, 49 [36
Cal.Rptr.2d 372].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 930, 931
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.03[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) § 28:16
909–999. Reserved for Future Use
600
601
[Name of plaintiff] claims that [he/she] was harmed because of the way
[name of defendant] managed [his/her/its] property. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the
property;
2. That [name of defendant] was negligent in the use or maintenance
of the property;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
alternative. A defendant need not own, possess and control property in order to
be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th
1149, 1162 [60 Cal.Rptr.2d 448, 929 P.2d 1239], original italics, internal
citations omitted.)
• “ ‘ “[A] landowner’s duty of care to avoid exposing others to a risk of injury is
not limited to injuries that occur on premises owned or controlled by the
landowner.” ’ ‘Rather, the duty of care encompasses a duty to avoid exposing
persons to risks of injury that occur off site if the landowner’s property is
maintained in such a manner as to expose persons to an unreasonable risk of
injury offsite.’ ” (Kesner, supra, 5 Cal.5th at p. 1159, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1082–1086
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.01
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, §§ 170.01, 170.20 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.01 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.11
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 16:1–16:3 (Thomson Reuters)
603
he came upon defendant’s land; and the probability of exposure of plaintiff and
others of his class to the risk of injury; as well as whether the condition itself
presented an unreasonable risk of harm, in view of the foreseeable use of the
property.’ Thus, the court concluded, and we agree, Rowland ‘does not
generally abrogate the decisions declaring the substantive duties of the
possessor of land to invitees nor those establishing the correlative rights and
duties of invitees.’ (Id., at p. 27.)” (Williams v. Carl Karcher Enterprises, Inc.
(1986) 182 Cal.App.3d 479, 486–487 [227 Cal.Rptr. 465], overruled on other
grounds in Soule v. GM Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882
P.2d 298].)
• “The distinction between artificial and natural conditions [has been] rejected.”
(Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371 [178 Cal.Rptr.
783, 636 P.2d 1121].)
• “It must also be emphasized that the liability imposed is for negligence. The
question is whether in the management of his property, the possessor of land
has acted as a reasonable person under all the circumstances. The likelihood of
injury to plaintiff, the probable seriousness of such injury, the burden of
reducing or avoiding the risk, the location of the land, and the possessor’s
degree of control over the risk-creating condition are among the factors to be
considered by the trier of fact in evaluating the reasonableness of a defendant’s
conduct.” (Sprecher, supra, 30 Cal.3d at p. 372.)
• “[A] landowner’s duty of care to avoid exposing others to a risk of injury is not
limited to injuries that occur on premises owned or controlled by the landowner.
Rather, the duty of care encompasses a duty to avoid exposing persons to risks
of injury that occur off site if the landowner’s property is maintained in such a
manner as to expose persons to an unreasonable risk of injury offsite. (Annocki
v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 38 [180 Cal.Rptr.3d
474].)
• “The duty which a possessor of land owes to others to put and maintain it in
reasonably safe condition is nondelegable. If an independent contractor, no
matter how carefully selected, is employed to perform it, the possessor is
answerable for harm caused by the negligent failure of his contractor to put or
maintain the buildings and structures in reasonably safe condition, irrespective
of whether the contractor’s negligence lies in his incompetence, carelessness,
inattention or delay.” (Brown, supra, 23 Cal.2d at p. 260.)
• “[A] defendant property owner’s compliance with a law or safety regulation, in
and of itself, does not establish that the owner has utilized due care. The
owner’s compliance with applicable safety regulations, while relevant to show
due care, is not dispositive, if there are other circumstances requiring a higher
degree of care.” (Lawrence, supra, 231 Cal.App.4th at p. 31.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1228
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
606
607
1 Levy et al., California Torts, Ch. 15, General Premises Liability, §§ 15.02–15.03
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, §§ 381.03–381.04 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.52 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq.
(Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 16:2
609
v. GM Corp. (1994) 8 Cal.4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d
298].)
• “Because the owner is not the insurer of the visitor’s personal safety, the
owner’s actual or constructive knowledge of the dangerous condition is a key to
establishing its liability. Although the owner’s lack of knowledge is not a
defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a]
defective condition of the premises, the owner or occupier “must have either
actual or constructive knowledge of the dangerous condition or have been able
by the exercise of ordinary care to discover the condition, which if known to
him, he should realize as involving an unreasonable risk to invitees on his
premises. . . .” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [114
Cal.Rptr.2d 470, 36 P.3d 11], internal citation omitted.)
• “Where the dangerous or defective condition of the property which causes the
injury has been created by reason of the negligence of the owner of the
property or his employee acting within the scope of the employment, the owner
of the property cannot be permitted to assert that he had no notice or
knowledge of the defective or dangerous condition in an action by an invitee
for injuries suffered by reason of the dangerous condition. Under such
circumstances knowledge thereof is imputed to him. Where the dangerous
condition is brought about by natural wear and tear, or third persons, or acts of
God or by other causes which are not due to the negligence of the owner, or his
employees, then to impose liability the owner must have either actual or
constructive knowledge of the dangerous condition or have been able by the
exercise of ordinary care to discover the condition, which if known to him, he
should realize as involving an unreasonable risk to invitees on his premises. His
negligence in such cases is founded upon his failure to exercise ordinary care in
remedying the defect after he has discovered it or as a man of ordinary
prudence should have discovered it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d
798, 806 [117 P.2d 841], internal citation omitted.)
• “Generally speaking, a property owner must have actual or constructive
knowledge of a dangerous condition before liability will be imposed. In the
ordinary slip-and-fall case, . . . the cause of the dangerous condition is not
necessarily linked to an employee. Consequently, there is no issue of respondeat
superior. Where, however, ‘the evidence is such that a reasonable inference can
be drawn that the condition was created by employees of the [defendant], then
[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.
Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641],
internal citation omitted.)
• “[U]nder current California law, a store owner’s choice of a particular ‘mode of
operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the
owner had knowledge of the dangerous condition that caused the accident.
Moreover, it would not be prudent to hold otherwise. Without this knowledge
requirement, certain store owners would essentially incur strict liability for slip-
and-fall injuries, i.e., they would be insurers of the safety of their patrons. For
611
example, whether the french fry was dropped 10 seconds or 10 hours before the
accident would be of no consequence to the liability finding. However, this is
not to say that a store owner’s business choices do not impact the negligence
analysis. If the store owner’s practices create a higher risk that dangerous
conditions will exist, ordinary care will require a corresponding increase in
precautions.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479
[3 Cal.Rptr. 3d 813].)
• “Although liability might easily be found where the landowner has actual
knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of
the dangerous condition is not a defense. He has an affirmative duty to exercise
ordinary care to keep the premises in a reasonably safe condition, and therefore
must inspect them or take other proper means to ascertain their condition. And
if, by the exercise of reasonable care, he would have discovered the dangerous
condition, he is liable.’ ” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325,
330 [203 Cal.Rptr. 701], internal citation omitted.)
• “[A] real estate agent has a duty to notify visitors of marketed property of
concealed dangerous conditions of which the agent has actual or constructive
knowledge. The agent’s actual or constructive knowledge of a dangerous
condition is imputed to his or her principal, the property owner, who shares
with the agent liability for damages proximately caused by a breach of this
duty.” (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141 [155
Cal.Rptr.3d 739].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1119–1123
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.02 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.51 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:4 (Thomson Reuters)
612
apparent risk involved, is such that under the circumstances, a person might
choose to encounter the danger. The foreseeability of injury, in turn, when
considered along with various other policy considerations such as the extent of
the burden to the defendant and consequences to the community of imposing a
duty to remedy such danger may lead to the legal conclusion that the defendant
‘owes a duty of due care “to all persons who are foreseeably endangered by his
conduct, with respect to all risks which make the conduct unreasonably
dangerous.” ’ ” (Osborn, supra, 224 Cal.App.3d at p. 121, internal citation
omitted.)
• “[W]hen a worker, whose work requires him or her to encounter a danger
which is obvious or observable, is injured, ‘[t]he jury [is] entitled to balance
the [plaintiff’s] necessity against the danger, even if it be assumed that it was
an apparent one. This [is] a factual issue. [Citations.]’ In other words, under
certain circumstances, an obvious or apparent risk of danger does not
automatically absolve a defendant of liability for injury caused thereby.”
(Osborn, supra, 224 Cal.App.3d at p. 118, original italics, internal citations
omitted.)
• “[T]he obvious nature of a danger is not, in and of itself, sufficient to establish
that the owner of the premises on which the danger is located is not liable for
injuries caused thereby, and that although obviousness of danger may negate
any duty to warn, it does not necessarily negate the duty to remedy.” (Osborn,
supra, 224 Cal.App.3d at p. 119.)
• “The issue is whether there is any evidence from which a trier of fact could
find that, as a practical necessity, [plaintiff] was foreseeably required to expose
himself to the danger of falling into the empty pool.” (Jacobs, supra, 14
Cal.App.5th at p. 447.)
• In Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1039–1040 [43
Cal.Rptr.2d 158], the court found that an instruction stating that the defendant
“owed no duty to warn plaintiff of a danger which was obvious or which should
have been observed in the exercise of ordinary care” was proper: “The jury was
free to consider whether Falcon was directly negligent in failing to correct any
foreseeable, dangerous condition of the cables which may have contributed to
the cause of Felmlee’s injuries.” (Id. at p. 1040.)
• “[T]he ‘obvious danger’ exception to a landowner’s ordinary duty of care is in
reality a recharacterization of the former assumption of the risk doctrine, i.e.,
where the condition is so apparent that the plaintiff must have realized the
danger involved, he assumes the risk of injury even if the defendant was
negligent. . . . [T]his type of assumption of the risk has now been merged into
comparative negligence.” (Donohue v. San Francisco Housing Authority (1993)
16 Cal.App.4th 658, 665 [20 Cal.Rptr.2d 148], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1267–1269
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04[4]
614
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, §§ 381.20, 381.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.25 et seq.
(Matthew Bender)
615
[An owner of a business that is open to the public/A landlord] must use
reasonable care to protect [patrons/guests/tenants] from another
person’s criminal conduct on [his/her/its] property if the
[owner/landlord] can reasonably anticipate that conduct.
You must decide whether the steps taken by [name of defendant] to
protect persons such as [name of plaintiff] were adequate and reasonable
under the circumstances.
not necessarily insulated from liability under the special relationship doctrine. A
proprietor that has no duty . . . to hire a security guard or to undertake other
similarly burdensome preventative measures still owes a duty of due care to a
patron or invitee by virtue of the special relationship, and there are
circumstances (apart from the failure to provide a security guard or undertake
other similarly burdensome preventative measures) that may give rise to liability
based upon the proprietor’s special relationship.” (Delgado, supra, 36 Cal.4th at
pp. 240–241.)
• A business proprietor is not an insurer of the safety of his invitees, “but he is
required to exercise reasonable care for their safety and is liable for injuries
resulting from a breach of this duty. The general duty includes not only the duty
to inspect the premises in order to uncover dangerous conditions, but, as well,
the duty to take affirmative action to control the wrongful acts of third persons
which threaten invitees where the occupant has reasonable cause to anticipate
such acts and the probability of injury resulting therefrom.” (Taylor, supra, 65
Cal.2d at p. 121, internal citations omitted.)
• “In the case of a landlord, this general duty of maintenance, which is owed to
tenants and patrons, has been held to include the duty to take reasonable steps
to secure common areas against foreseeable criminal acts of third parties that
are likely to occur in the absence of such precautionary measures.” (Ann M.,
supra, 6 Cal.4th at p. 674, internal citation omitted.) (Frances T. v. Village
Green Owners Assn. (1986) 42 Cal.3d 490, 499–501 [229 Cal.Rptr. 456, 723
P.2d 573].)
• “[Restatement Second of Torts] Section 314A identifies ‘special relations’ which
give rise to a duty to protect another. Section 344 of the Restatement Second of
Torts expands on that duty as it applies to business operators.” (Ky. Fried
Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 823 [59 Cal.Rptr.2d
756, 927 P.2d 1260].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1271–1291
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.06
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.05 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.21 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, §§ 334.12, 334.23, 334.57 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.30
et seq. (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq.
(Matthew Bender)
618
619
New September 2003; Revised April 2008, April 2009, December 2009, June 2010
Directions for Use
Give this instruction with CACI No. 1000, Premises Liability—Essential Factual
Elements, CACI No. 1001, Basic Duty of Care, and CACI No. 1003, Unsafe
Conditions, if the injury occurred on rental property and the landlord is alleged to
be liable. Include the last paragraph if the property is not within the landlord’s
immediate control.
Include “or on renewal of a lease” for commercial tenancies. (See Mora v. Baker
Commodities, Inc. (1989) 210 Cal.App.3d 771, 781 [258 Cal.Rptr. 669].) While no
case appears to have specifically addressed a landlord’s duty to inspect on renewal
of a residential lease, it would seem impossible to impose such a duty with regard
to a month-to-month tenancy. Whether there might be a duty to inspect on renewal
of a long-term residential lease appears to be unresolved.
Under the doctrine of nondelegable duty, a landlord cannot escape liability for
failure to maintain property in a safe condition by delegating the duty to an
independent contractor. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th
721, 726 [28 Cal.Rptr.2d 672].) For an instruction for use with regard to a
landlord’s liability for the acts of an independent contractor, see CACI No. 3713,
Nondelegable Duty.
620
defects which are unknown and not apparent to the tenant and he fails to
disclose them to the tenant, where there is a nuisance existing on the property
at the time the lease is made or renewed, when a safety law has been violated,
or where the injury occurs on a part of the premises over which the landlord
retains control, such as common hallways, stairs, elevators, or roof. [¶] A
common element in these exceptions is that either at or after the time
possession is given to the tenant the landlord retains or acquires a recognizable
degree of control over the dangerous condition with a concomitant right and
power to obviate the condition and prevent the injury. In these situations, the
law imposes on the landlord a duty to use ordinary care to eliminate the
condition with resulting liability for injuries caused by his failure so to act.”
(Uccello, supra, 44 Cal.App.3d at p. 511, internal citations omitted.)
• “With regard to landlords, ‘reasonable care ordinarily involves making sure the
property is safe at the beginning of the tenancy, and repairing any hazards the
landlord learns about later.’ ‘ “Because a landlord has relinquished possessory
interest in the land, his or her duty of care to third parties injured on the land is
attenuated as compared with the tenant who enjoys possession and control.
Thus, before liability may be thrust on a landlord for a third party’s injury due
to a dangerous condition on the land, the plaintiff must show that the landlord
had actual knowledge of the dangerous condition in question, plus the right and
ability to cure the condition.” ’ ” (Day v. Lupo Vine Street, L.P. (2018) 22
Cal.App.5th 62, 69 [231 Cal.Rptr.3d 193], internal citations omitted.)
• “Limiting a landlord’s obligations releases it from needing to engage in
potentially intrusive oversight of the property, thus permitting the tenant to
enjoy its tenancy unmolested.” (Salinas v. Martin (2008) 166 Cal.App.4th 404,
412 [82 Cal.Rptr.3d 735], internal citations omitted.)
• “[A] commercial landowner cannot totally abrogate its landowner
responsibilities merely by signing a lease. As the owner of property, a lessor out
of possession must exercise due care and must act reasonably toward the tenant
as well as to unknown third persons. At the time the lease is executed and upon
renewal a landlord has a right to reenter the property, has control of the
property, and must inspect the premises to make the premises reasonably safe
from dangerous conditions. Even if the commercial landlord executes a contract
which requires the tenant to maintain the property in a certain condition, the
landlord is obligated at the time the lease is executed to take reasonable
precautions to avoid unnecessary danger.” (Mora, supra, 210 Cal.App.3d at p.
781, internal citations omitted.)
• “[T]he landlord’s responsibility to inspect is limited. Like a residential landlord,
the duty to inspect charges the lessor ‘only with those matters which would
have been disclosed by a reasonable inspection.’ The burden of reducing or
avoiding the risk and the likelihood of injury will affect the determination of
what constitutes a reasonable inspection. The landlord’s obligation is only to do
what is reasonable under the circumstances. The landlord need not take
extraordinary measures or make unreasonable expenditures of time and money
622
[An owner of/A lessee of/An occupier of/One who controls] property
must avoid creating an unsafe condition on the surrounding public
streets or sidewalks.
625
property and the more reasonable it is to impose upon the landowner a duty to
maintain the improvement in a reasonably safe condition.” (Seaber v. Hotel Del
Coronado (1991) 1 Cal.App.4th 481, 491 [2 Cal.Rptr.2d 405].)
• The requirement of due care in altering a sidewalk applies only to that portion
of the sidewalk that is actually altered: “The rule cited by plaintiff requires the
owner to keep the altered portion in reasonably safe condition or be liable for
injuries resulting therefrom. Plaintiff did not trip on defendant’s floral displays,
she slipped on the dog dropping, a hazard which defendant did not create.”
(Selger, supra, 222 Cal.App.3d at p. 1595.)
• “The duty to maintain portions of a sidewalk which have been altered for the
benefit of the property runs with the land, and a property owner cannot avoid
liability on the ground that the condition was created by or at the request of his
predecessors in title.” (Peters, supra, 41 Cal.2d at p. 423.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1090–1093
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.03[4]
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.29
(Matthew Bender)
627
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2011
Directions for Use
This instruction is for use if a concealed dangerous condition on property causes
injury to an employee of an independent contractor hired to perform work on the
property. For an instruction for injuries to others due to a concealed condition, see
CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on the
owner’s retained control, see CACI No. 1009B, Liability to Employees of
Independent Contractors for Unsafe Conditions—Retained Control. For an
instruction for injuries based on the property owner’s providing defective
equipment, see CACI No. 1009D, Liability to Employees of Independent
Contractors for Unsafe Conditions—Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for
instructions on the liability of a hirer for the acts of an independent contractor.
628
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
630
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2010, December 2011, May 2017
Directions for Use
This instruction is for use if a dangerous condition on property causes injury to an
employee of an independent contractor hired to perform work on the property. The
basis of liability is that the defendant retained control over the safety conditions at
the worksite. For an instruction for injuries to others due to a concealed condition,
see CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on
unsafe conditions not discoverable by the plaintiff’s employer, see CACI No.
1009A, Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions. For an instruction for injuries based on the property owner’s providing
defective equipment, see CACI No. 1009D, Liability to Employees of Independent
Contractors for Unsafe Conditions—Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for
instructions on the liability of a hirer for the acts of an independent contractor.
The hirer’s retained control must have “affirmatively contributed” to the plaintiff’s
injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 [115
Cal.Rptr.2d 853, 38 P.3d 1081].) However, the affirmative contribution need not be
active conduct but may be a failure to act. (Id. at p. 212, fn. 3.) “Affirmative
contribution” means that there must be causation between the hirer’s retained
631
control and the plaintiff’s injury. But “affirmative contribution” might be construed
by a jury to require active conduct rather than a failure to act. Element 5, the
standard “substantial factor” element, expresses the “affirmative contribution.”
requirement. (See Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594–595 [207
Cal.Rptr.3d 712] [agreeing with committee’s position that “affirmatively
contributed” need not be specifically stated in instruction].)
Sources and Authority
• “We conclude that a hirer of an independent contractor is not liable to an
employee of the contractor merely because the hirer retained control over safety
conditions at a worksite, but that a hirer is liable to an employee of a contractor
insofar as a hirer’s exercise of retained control affırmatively contributed to the
employee’s injuries.” (Hooker, supra, 27 Cal.4th at p. 202, original italics.)
• “Imposing tort liability on a hirer of an independent contractor when the hirer’s
conduct has affirmatively contributed to the injuries of the contractor’s
employee is consistent with the rationale of our decisions in Privette, Toland
and Camargo because the liability of the hirer in such a case is not ‘ “in
essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or
omission’ of the hired contractor.” ’ To the contrary, the liability of the hirer in
such a case is direct in a much stronger sense of that term.” (Hooker, supra, 27
Cal.4th at pp. 211–212, original italics, internal citations and footnote omitted.)
• “Such affirmative contribution need not always be in the form of actively
directing a contractor or contractor’s employee. There will be times when a
hirer will be liable for its omissions. For example, if the hirer promises to
undertake a particular safety measure, then the hirer’s negligent failure to do so
should result in liability if such negligence leads to an employee injury.”
(Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
• “If a hirer entrusts work to an independent contractor, but retains control over
safety conditions at a jobsite and then negligently exercises that control in a
manner that affirmatively contributes to an employee’s injuries, the hirer is
liable for those injuries, based on its own negligent exercise of that retained
control.” (Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446
[136 Cal.Rptr.3d 521].)
• “A hirer’s failure to correct an unsafe condition, by itself, does not establish an
affirmative contribution.” (Khosh v. Staples Construction Co., Inc. (2016) 4
Cal.App.5th 712, 718 [208 Cal.Rptr.3d 699].)
• “Although drawn directly from case law, [plaintiff]’s proposed Special
Instructions Nos. 2 and 8 are somewhat misleading in that they suggest that in
order for the hirer to ‘affirmatively contribute’ to the plaintiff’s injuries, the
hirer must have engaged in some form of active direction or conduct. However,
‘affirmative contribution need not always be in the form of actively directing a
contractor or contractor’s employee. There will be times when a hirer will be
liable for its omissions.’ The Advisory Committee on Civil Jury Instructions
recognized the potential to confuse the jury by including ‘affirmative
632
contribution’ language in CACI No. 1009B. The committee’s Directions for Use
states: ‘The hirer’s retained control must have “affirmatively contributed” to the
plaintiff’s injury. [Citation.] However, the affirmative contribution need not be
active conduct but may be in the form of an omission to act. [Citation.] The
advisory committee believes that the “affirmative contribution” requirement
simply means that there must be causation between the hirer’s conduct and the
plaintiff’s injury. Because “affirmative contribution” might be construed by a
jury to require active conduct rather than a failure to act, the committee
believes that its standard “substantial factor” element adequately expresses the
“affirmative contribution” requirement.’ (Directions for Use for CACI No.
1009B.) [¶] We agree with the Advisory Committee on Civil Jury Instructions
that CACI No. 1009B adequately covers the ‘affirmative contribution’
requirement set forth in Hooker.” (Regalado v. Callaghan (2016) 3 Cal.App.5th
582, 594–595 [207 Cal.Rptr.3d 712].)
• “When the employer directs that work be done by use of a particular mode or
otherwise interferes with the means and methods of accomplishing the work, an
affirmative contribution occurs. When the hirer does not fully delegate the task
of providing a safe working environment but in some manner actively
participates in how the job is done, the hirer may be held liable to the employee
if its participation affirmatively contributed to the employee’s injury. [¶] By
contrast, passively permitting an unsafe condition to occur rather than directing
it to occur does not constitute affirmative contribution. The failure to institute
specific safety measures is not actionable unless there is some evidence that the
hirer or the contractor had agreed to implement these measures. Thus, the
failure to exercise retained control does not constitute an affirmative
contribution to an injury. Such affirmative contribution must be based on a
negligent exercise of control. In order for a worker to recover on a retained
control theory, the hirer must engage in some active participation.” (Tverberg,
supra, 202 Cal.App.4th at p. 1446, internal citations omitted.)
• “Although plaintiffs concede that [contractor] had exclusive control over how
the window washing would be done, they urge that [owner] nonetheless is
liable because it affirmatively contributed to decedent’s injuries ‘not [by] active
conduct but . . . in the form of an omission to act.’ Although it is undeniable
that [owner]’s failure to equip its building with roof anchors contributed to
decedent’s death, McKown [v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219]
does not support plaintiffs’ suggestion that a passive omission of this type is
actionable. . . . Subsequent Supreme Court decisions . . . have repeatedly
rejected the suggestion that the passive provision of an unsafe workplace is
actionable. . . . Accordingly, the failure to provide safety equipment does not
constitute an ‘affirmative contribution’ to an injury within the meaning of
McKown.” (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078,
1093 [229 Cal.Rptr.3d 594], original italics.)
• “[U]nder Government Code section 815.4, a public entity can be held liable
under the retained control doctrine, provided a private person would be liable
633
under the same circumstances. This means that the public entity must
negligently exercise its retained control so as to affirmatively contribute to the
injuries of the employee of the independent contractor.” (McCarty v.
Department of Transportation (2008) 164 Cal.App.4th 955, 985 [79 Cal.Rptr.3d
777], original italics.)
• “The Privette line of decisions establishes a presumption that an independent
contractor’s hirer ‘delegates to that contractor its tort law duty to provide a safe
workplace for the contractor’s employees.’ . . . [T]he Privette presumption
affects the burden of producing evidence.” (Alvarez v. Seaside Transportation
Services LLC (2017) 13 Cal.App.5th 635, 642 [221 Cal.Rptr.3d 119], internal
citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1117
Friedman, et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.12
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)
1009C. Reserved for Future Use
634
Derived from CACI No. 1009B April 2009; Revised December 2011
Directions for Use
This instruction is for use if a dangerous condition on property causes injury to an
employee of an independent contractor hired to perform work on the property. The
basis of liability is that the defendant provided defective equipment. For an
instruction for injuries to others due to a concealed condition, see CACI No. 1003,
Unsafe Conditions. For an instruction for injuries based on unsafe concealed
conditions not discoverable by the plaintiff’s employer, see CACI No. 1009A,
Liability to Employees of Independent Contractors for Unsafe Concealed
Conditions. For an instruction for injuries based on the property owner’s retained
control over the property, see CACI No. 1009B, Liability to Employees of
Independent Contractors for Unsafe Conditions—Retained Control.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for
instructions on the liability of a hirer for the acts of an independent contractor.
Sources and Authority
• “[W]hen a hirer of an independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the injury of an
employee of the contractor, the hirer should be liable to the employee for the
consequences of the hirer’s own negligence.” (Elsner v. Uveges (2004) 34
Cal.4th 915, 937 [22 Cal.Rptr.3d 530, 102 P.3d 915].)
• “ ‘[W]here the hiring party actively contributes to the injury by supplying
defective equipment, it is the hiring party’s own negligence that renders it
liable, not that of the contractor.’ ” (McKown v. Wal-Mart Stores, Inc. (2002) 27
Cal.4th 219, 225 [115 Cal.Rptr.2d 868, 38 P.3d 1094], internal citation omitted.)
635
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1117
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.15
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.24
(Matthew Bender)
636
New September 2003; Revised October 2008, December 2014, May 2017,
November 2017
Directions for Use
This instruction sets forth the statutory exceptions to recreational immunity. (See
Civ. Code, § 846.) In the opening paragraph, if the plaintiff was not the recreational
user of the property, insert the name of the person whose conduct on the property
is alleged to have caused plaintiff’s injury. Immunity extends to injuries to persons
who are neither on the property nor engaged in a recreational purpose if the injury
was caused by a recreational user of the property. (See Wang v. Nibbelink (2016) 4
Cal.App.5th 1, 17 [208 Cal.Rptr.3d 461].)
Choose one or more of the optional exceptions according to the facts. Depending
on the facts, the court could instruct that the activity involved was a “recreational
purpose” as a matter of law. For a comprehensive list of “recreational purposes,”
refer to Civil Code section 846.
Whether the term “willful or malicious failure” has a unique meaning under this
637
statute is not entirely clear. One court construing this statute has said that three
elements must be present to raise a negligent act to the level of willful misconduct:
(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or
constructive knowledge that injury is a probable, as opposed to a possible, result of
the danger, and (3) conscious failure to act to avoid the peril. (See New v.
Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689–690 [217
Cal.Rptr. 522].)
For the second exception involving payment of a fee, insert the name of the
defendant if the defendant is the landowner. If the defendant is someone who is
alleged to have created a dangerous condition on the property other than the
landowner, select “the owner.” (See Pacific Gas & Electric Co. v. Superior Court
(2017) 10 Cal.App.5th 563, 566 [216 Cal.Rptr.3d 426].)
Federal courts interpreting California law have addressed whether the “express
invitation” must be personal to the user. The Ninth Circuit has held that invitations
to the general public do not qualify as “express invitations” within the meaning of
section 846. In Ravell v. United States (9th Cir. 1994) 22 F.3d 960, 963, the Ninth
Circuit held that California law requires a personal invitation for a section 846
invitation, citing Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 317 [26
Cal.Rptr.2d 148]. However, the issue has not been definitively resolved by the
California Supreme Court.
Sources and Authority
• Recreational Immunity. Civil Code section 846.
• “[A]n owner of . . . real property owes no duty of care to keep the premises
safe for entry or use by others for recreational purposes or to give recreational
users warning of hazards on the property, unless: (1) the landowner willfully or
maliciously fails to guard or warn against a dangerous condition, use, structure
or activity; (2) permission to enter for a recreational purpose is granted for a
consideration; or (3) the landowner expressly invites rather than merely permits
the user to come upon the premises.” (Ornelas v. Randolph (1993) 4 Cal.4th
1095, 1099–1100 [17 Cal.Rptr.2d 594, 847 P.2d 560].)
• “Generally, whether one has entered property for a recreational purpose within
the meaning of the statute is a question of fact, to be determined through a
consideration of the ‘totality of the facts and circumstances, including . . . the
prior use of the land. While the plaintiff’s subjective intent will not be
controlling, it is relevant to show purpose.’ ” (Ornelas, supra, 4 Cal.4th at p.
1102, internal citation omitted.)
• “The phrase ‘interest in real property’ should not be given a narrow or technical
interpretation that would frustrate the Legislature’s intention in passing and
amending section 846.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 196 [266
Cal.Rptr. 491, 785 P.2d 1183].)
• “[D]efendants’ status as business invitees of the landowner does not satisfy the
prerequisite that the party seeking to invoke the immunity provisions of section
638
846 be ‘[a]n owner of any estate or any other interest in real property, whether
possessory or nonpossessory.’ Although such invitee may be entitled to be
present on the property during such time as the work is being performed, such
presence does not convey any estate or interest in the property.” (Jenson v.
Kenneth I. Mullen, Consulting Engineers, Inc. (1989) 211 Cal.App.3d 653, 658
[259 Cal.Rptr. 552].)
• “Subpart (c) of the third paragraph of section 846 is not limited to injuries to
persons on the premises and therefore on its face encompasses persons off-
premises such as [plaintiff] and her husband. It is not limited to injuries to
recreational participants. Had the Legislature wanted to narrow the third
paragraph’s immunity to injured recreational users, it could have done so, as it
did in the first paragraph.” (Wang, supra, 4 Cal.App.5th at p. 17.)
• “The concept of willful misconduct has a well-established, well-defined
meaning in California law. ‘Willful or wanton misconduct is intentional
wrongful conduct, done either with a knowledge that serious injury to another
will probably result, or with a wanton and reckless disregard of the possible
results.’ ” (New, supra, 171 Cal.App.3d at p. 689, internal citations omitted.)
• “Clearly, consideration means some type of entrance fee or charge for
permitting a person to use specially constructed facilities. There are many
amusement facilities in government-owned parks that charge admission fees and
a consideration in this or a similar context was intended.” (Moore v. City of
Torrance (1979) 101 Cal.App.3d 66, 72 [166 Cal.Rptr. 192], disapproved of on
other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33
Cal.3d 699, 707 [190 Cal.Rptr. 494, 660 P.2d 1168].)
• “We conclude that the consideration exception to recreational use immunity
does apply to [defendant] even though [plaintiff]’s fee for recreational access to
the campground was not paid to it . . . . We hold that the payment of
consideration in exchange for permission to enter a premises for a recreational
purpose abrogates the section 846 immunity of any nonpossessory interest
holder who is potentially responsible for the plaintiff’s injuries, including a
licensee or easement holder who possesses only a limited right to enter and use
a premises on specified terms but no right to control third party access to the
premises. The contrary interpretation urged by [defendant], making immunity
contingent not on payment of consideration but its receipt, is supported neither
by the statutory text nor the Legislature’s purpose in enacting section 846,
which was to encourage free public access to property for recreational use. It
also would lead to troubling, anomalous results we do not think the Legislature
intended. At bottom, construing this exception as applying only to defendants
who receive or benefit from the consideration paid loses sight of the fact that
recreational immunity is merely a tool. It is the Legislature’s chosen means, not
an end unto itself.” (Pacific Gas & Electric Co., supra, 10 Cal.App.5th at p.
566.)
• “A landowner must gain some immediate and reasonably direct advantage,
usually in the form of an entrance fee, before the exception to immunity for
639
640
643
If you find that the condition causing the risk of harm was created by
[name of defendant] or [his/her/its] employee acting within the scope of
[his/her] employment, then you must conclude that [name of defendant]
knew of this condition.
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
646
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, October 2008, December 2010,
December 2014, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1000, Premises Liability—Essential
Factual Elements, and CACI No. 1010, Affırmative Defense—Recreation
Immunity—Exceptions.
The special verdict forms in this section are intended only as models. They may
648
649
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New February 2005; Revised April 2007, December 2009, December 2010,
December 2016
651
652
653
New September 2003; Revised October 2008, December 2015, June 2016
Directions for Use
For element 4, choose either or both options depending on whether liability is
alleged under Government Code section 835(a), 835(b), or both.
See also CACI No. 1102, Definition of “Dangerous Condition,” and CACI No.
1103, Notice.
Sources and Authority
• Liability of Public Entity for Dangerous Condition of Property. Government
Code section 835.
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• Definitions. Government Code section 830.
• ‘The Government Claims Act (§ 810 et seq.; the Act) ‘is a comprehensive
statutory scheme that sets forth the liabilities and immunities of public entities
and public employees for torts.’ Section 835 . . . prescribes the conditions
654
under which a public entity may be held liable for injuries caused by a
dangerous condition of public property. Section 835 provides that a public
entity may be held liable for such injuries ‘if the plaintiff establishes that the
property was in a dangerous condition at the time of the injury, that the injury
was proximately caused by the dangerous condition, [and] that the dangerous
condition created a reasonably foreseeable risk of the kind of injury which was
incurred.’ In addition, the plaintiff must establish that either: (a) ‘[a] negligent
or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition,’ or (b) ‘[t]he public
entity had . . . notice of the dangerous condition . . . a sufficient time prior to
the injury to have taken measures to protect against the dangerous condition.’ ”
(Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105–1106 [190
Cal.Rptr.3d 850, 353 P.3d 773], internal citations omitted.)
• “[A] public entity may be liable for a dangerous condition of public property
even when the immediate cause of a plaintiff’s injury is a third party’s negligent
or illegal act (such as a motorist’s negligent driving), if some physical
characteristic of the property exposes its users to increased danger from third
party negligence or criminality. Public entity liability lies under section 835
when some feature of the property increased or intensified the danger to users
from third party conduct.” (Castro v. City of Thousand Oaks (2015) 239
Cal.App.4th 1451, 1457−1458 [192 Cal.Rptr.3d 376], internal citation omitted.)
• “Subdivisions (a) and (b) of section 835 obviously address two different types
of cases. However, what distinguishes the two types of cases is not simply
whether the public entity has notice of the dangerous condition. Instead, what
distinguishes the two cases in practice is who created the dangerous condition.
Because an entity must act through its employees, virtually all suits brought on
account of dangerous conditions created by the entity will be brought under
subdivision (a). In contrast, subdivision (b) can also support suits based on
dangerous conditions not created by the entity or its employees.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 836 [15 Cal.Rptr.2d 679, 843
P.2d 624].)
• “[T]he res ipsa loquitur presumption does not satisfy the requirements for
holding a public entity liable under section 835, subdivision (a). Res ipsa
loquitur requires the plaintiff to show only (1) that the accident was of a kind
which ordinarily does not occur in the absence of negligence, (2) that the
instrumentality of harm was within the defendant’s exclusive control, and (3)
that the plaintiff did not voluntarily contribute to his or her own injuries.
Subdivision (a), in contrast, requires the plaintiff to show that an employee of
the public entity ‘created’ the dangerous condition; in view of the legislative
history . . . the term ‘created’ must be defined as the sort of involvement by an
employee that would justify a presumption of notice on the entity’s part.”
(Brown, supra, 4 Cal.4th at p. 836.)
• “Focusing on the language in Pritchard, supra, 178 Cal.App.2d at page 256,
stating that where the public entity ‘has itself created the dangerous condition it
655
is per se culpable,’ plaintiff argues that the negligence that section 835,
subdivision (a), refers to is not common law negligence, but something that
exists whenever the public entity creates the dangerous condition of property.
We disagree. If the Legislature had wanted to impose liability whenever a
public entity created a dangerous condition, it would merely have required
plaintiff to establish that an act or omission of an employee of the public entity
within the scope of his employment created the dangerous condition. Instead,
section 835, subdivision (a), requires the plaintiff to establish that a ‘negligent
or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition.’ (Italics added.)
Plaintiff’s interpretation would transform the highly meaningful words
‘negligent or wrongful’ into meaningless surplusage, contrary to the rule of
statutory interpretation that courts should avoid a construction that makes any
word surplusage.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121,
1135 [72 Cal.Rptr.3d 382, 176 P.3d 654], original italics, internal citation
omitted.)
• “In order to recover under Government Code section 835, it is not necessary for
plaintiff to prove a negligent act and notice; either negligence or notice will
suffice.” (Curtis v. State of California (1982) 128 Cal.App.3d 668, 693 [180
Cal.Rptr. 843], original italics.)
• “A public entity may not be held liable under section 835 for a dangerous
condition of property that it does not own or control.” (Goddard v. Department
of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359 [196 Cal.Rptr.3d 625].)
• “For liability to be imposed on a public entity for a dangerous condition of
property, the entity must be in a position to protect against or warn of the
hazard. Therefore, the crucial element is not ownership, but rather control.”
(Mamola v. State of California ex rel. Dept. of Transportation (1979) 94
Cal.App.3d 781, 788 [156 Cal.Rptr. 614], internal citation omitted.)
• “Liability for injury caused by a dangerous condition of property has been
imposed when an unreasonable risk of harm is created by a combination of
defect in the property and acts of third parties. However, courts have
consistently refused to characterize harmful third party conduct as a dangerous
condition—absent some concurrent contributing defect in the property itself.”
(Hayes v. State of California (1974) 11 Cal.3d 469, 472 [113 Cal.Rptr. 599, 521
P.2d 855], internal citations omitted.)
• “[P]laintiffs in this case must show that a dangerous condition of property—that
is, a condition that creates a substantial risk of injury to the
public—proximately caused the fatal injuries their decedents suffered as a result
of the collision with [third party]’s car. But nothing in the statute requires
plaintiffs to show that the allegedly dangerous condition also caused the third
party conduct that precipitated the accident.” (Cordova, supra, 61 Cal.4th at p.
1106.)
• “The existence of a dangerous condition is ordinarily a question of fact but ‘can
656
657
659
• “An initial and essential element of recovery for premises liability under the
governing statutes is proof a dangerous condition existed. The law imposes no
duty on a landowner—including a public entity—to repair trivial defects, or ‘to
maintain [its property] in an absolutely perfect condition.’ ” (Stathoulis v. City
of Montebello (2008) 164 Cal.App.4th 559, 566 [78 Cal.Rptr.3d 910], internal
citations omitted.)
• “The status of a condition as ‘dangerous’ for purposes of the statutory definition
does not depend on whether the plaintiff or other persons were actually
exercising due care but on whether the condition of the property posed a
substantial risk of injury to persons who were exercising due care.” (Cole v.
Town of Los Gatos (2012) 205 Cal.App.4th 749, 768 [140 Cal.Rptr.3d 722],
original italics.)
• “[T]he fact the particular plaintiff may not have used due care is relevant only
to his [or her] comparative fault and not to the issue of the presence of a
dangerous condition.” (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th
1451, 1459 [192 Cal.Rptr.3d 376].)
• “The negligence of a plaintiff-user of public property . . . is a defense which
may be asserted by a public entity; it has no bearing upon the determination of
a ‘dangerous condition’ in the first instance. . . . If, however, it can be shown
that the property is safe when used with due care and that a risk of harm is
created only when foreseeable users fail to exercise due care, then such
property is not ‘dangerous’ within the meaning of section 830, subdivision (a).”
(Fredette, supra, 187 Cal.App.3d at p. 131, internal citation omitted.)
• “Even though it is foreseeable that persons may use public property without due
care, a public entity may not be held liable for failing to take precautions to
protect such persons.” (Fredette, supra, 187 Cal.App.3d at p. 132, internal
citation omitted.)
• “With respect to public streets, courts have observed ‘any property can be
dangerous if used in a sufficiently improper manner. For this reason, a public
entity is only required to provide roads that are safe for reasonably foreseeable
careful use. [Citation.] “If [] it can be shown that the property is safe when
used with due care and that a risk of harm is created only when foreseeable
users fail to exercise due care, then such property is not ‘dangerous’ within the
meaning of section 830, subdivision (a).” [Citation.]’ ” (Sun v. City of Oakland
(2008) 166 Cal.App.4th 1177, 1183 [83 Cal.Rptr.3d 372], internal citations
omitted.)
• “[A] prior dangerous condition may require street lighting or other means to
lessen the danger but the absence of street lighting is itself not a dangerous
condition.” (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124,
133 [142 Cal.Rptr.3d 633].)
• “Although public entities may be held liable for injuries occurring to reasonably
foreseeable users of the property, even when the property is used for a purpose
for which it is not designed or which is illegal, liability may ensue only if the
661
property creates a substantial risk of injury when it is used with due care.
Whether a condition creates a substantial risk of harm depends on how the
general public would use the property exercising due care, including children
who are held to a lower standard of care. (§ 830.) The standard is an objective
one; a plaintiff’s particular condition . . . , does not alter the standard.”
(Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466 [72
Cal.Rptr.2d 464], internal citations omitted.)
• “A public entity may be liable for a dangerous condition of public property
even where the immediate cause of a plaintiff’s injury is a third party’s
negligence if some physical characteristic of the property exposes its users to
increased danger from third party negligence. ‘But it is insufficient to show only
harmful third party conduct, like the conduct of a motorist. “ ‘[T]hird party
conduct, by itself, unrelated to the condition of the property, does not constitute
a “dangerous condition” for which a public entity may be held liable.’ ” . . .
There must be a defect in the physical condition of the property and that defect
must have some causal relationship to the third party conduct that injures the
plaintiff. . . .’ ” (Salas v. Department of Transportation (2011) 198 Cal.App.4th
1058, 1069–1070 [129 Cal.Rptr.3d 690], internal citation omitted.)
• “Nothing in the provisions of section 835, however, specifically precludes a
finding that a public entity may be under a duty, given special circumstances, to
protect against harmful criminal conduct on its property.” (Peterson, supra, 36
Cal.3d at pp. 810–811, internal citations omitted.)
• “Two points applicable to this case are . . . well established: first, that the
location of public property, by virtue of which users are subjected to hazards on
adjacent property, may constitute a ‘dangerous condition’ under sections 830
and 835; second, that a physical condition of the public property that increases
the risk of injury from third party conduct may be a ‘dangerous condition’
under the statutes.” (Bonanno v. Central Contra Costa Transit Authority (2003)
30 Cal.4th 139, 154 [132 Cal.Rptr.2d 341, 65 P.3d 807].)
• “[T]he absence of other similar accidents is ‘relevant to the determination of
whether a condition is dangerous.’ But the city cites no authority for the
proposition that the absence of other similar accidents is dispositive of whether
a condition is dangerous, or that it compels a finding of nondangerousness
absent other evidence.” (Lane v. City of Sacramento (2010) 183 Cal.App.4th
1337, 1346 [107 Cal.Rptr.3d 730], original italics, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 269
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) § 12.15
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[2][a] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.81 (Matthew Bender)
662
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
663
[Name of plaintiff] must prove that [name of defendant] had notice of the
dangerous condition before the incident occurred. To prove that there
was notice, [name of plaintiff] must prove:
[That [name of defendant] knew of the condition and knew or should
have known that it was dangerous. A public entity knows of a
dangerous condition if an employee knows of the condition and
reasonably should have informed the entity about it.]
[or]
[That the condition had existed for enough time before the incident and
was so obvious that the [name of defendant] reasonably should have
discovered the condition and known that it was dangerous.]
• “Whether the dangerous condition was obvious and whether it existed for a
sufficient period of time are threshold elements to establish a claim of
constructive notice. Where the plaintiff fails to present direct or circumstantial
evidence as to either element, his claim is deficient as a matter of law.” (Heskel
v. City of San Diego (2014) 227 Cal.App.4th 313, 317 [173 Cal.Rptr.3d 768],
internal citation omitted.)
• “ ‘It is well settled that constructive notice can be shown by the long continued
existence of the dangerous or defective condition, and it is a question of fact for
the jury to determine whether the condition complained of has existed for a
sufficient time to give the public agency constructive notice.’ ” (Erfurt v. State
of California (1983) 141 Cal.App.3d 837, 844–845 [190 Cal.Rptr 569], internal
citations omitted.)
• “Admissible evidence for establishing constructive notice is defined by
[Government Code section 835.2(b)] as including whether a reasonably
adequate inspection system would have informed the public entity, and whether
it maintained and operated such an inspection system with due care.” (Heskel,
supra, 227 Cal.App.4th at p. 317.)
• “In the instant case, it can be validly argued that there was a triable issue on the
question of inspection, but in determining whether there is constructive notice,
the method of inspection has been held to be secondary.” (Superior Court of
San Mateo County, supra, 263 Cal.App.2d at p. 400, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 271
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.45–12.51
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
665
§§ 12.48–12.50
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
1105–1109. Reserved for Future Use
667
improved, including the court in Alana M.” (County of San Mateo, supra, 13
Cal.App.5th at p. 736.)
• “Given the intent of the Legislature in enacting section 831.2, we hold that wild
animals are a natural part of the condition of unimproved public property within
the meaning of the statute.” (Arroyo, supra, 34 Cal.App.4th at p. 762.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 250, 256
Haning, et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability
For “Dangerous Conditions” Of Public Property, ¶ 2:2825 et seq. (The Rutter
Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.82–12.87
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.214
(Matthew Bender)
670
672
674
You may not find that [name of defendant]’s property was in a dangerous
condition just because it did not provide a [insert device or marking].
However, you may consider the lack of a [insert device or marking],
along with other circumstances shown by the evidence, in determining
whether [name of defendant]’s property was dangerous.
676
677
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 264, 265
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.76–12.79
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.304
(Matthew Bender)
678
680
683
New September 2003; Revised June 2010; Renumbered from CACI No. 1123 and
Revised December 2014
Directions for Use
Give this instruction if the plaintiff claims that the public entity defendant has lost
its design immunity because of changed conditions since the design or plan was
originally adopted. Read either or both options for element 3 depending on the
facts of the case.
If the applicability of design immunity in the first instance is disputed, give CACI
No. 1123, Affırmative Defense—Design Immunity. Also in this case, the
introductory paragraph might begin with “Even if [name of defendant] proves both
of these elements” (from CACI No. 1123).
Users should include CACI No. 1102, Definition of “Dangerous Condition,” and
CACI No. 1103, Notice, to define “dangerous condition” and “notice” in connection
with this instruction. Additionally, the meaning and legal requirements for a
“change of physical condition” have been the subject of numerous decisions
involving specific contexts. Appropriate additional instructions to account for these
decisions may be necessary.
Sources and Authority
• Design Immunity. Government Code section 830.6.
684
685
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 284
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2865 et seq. (The Rutter Group)
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[3][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.12 (Matthew
Bender)
1125–1199. Reserved for Future Use
686
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
688
689
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, June 2010,
December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1100, Dangerous Condition on Public
Property—Essential Factual Elements, CACI No. 1111, Affırmative
Defense—Condition Created by Reasonable Act or Omission, and CACI No. 1112,
Affırmative Defense—Reasonable Act or Omission to Correct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
For questions 4 and 6, choose the first bracketed options if liability is alleged
because of an employee’s negligent conduct under Government Code section
835(a). Use the second bracketed options if liability is alleged for failure to act
after actual or constructive notice under Government Code section 835(b). Both
options may be given if the plaintiff is proceeding under both theories of liability.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
692
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1102–VF-1199. Reserved for Future Use
693
§ 1714.45)
1249. Affirmative Defense—Reliance on Knowledgeable Intermediary
1250–1299. Reserved for Future Use
VF-1200. Strict Products Liability—Manufacturing Defect—Comparative Fault at
Issue
VF-1201. Strict Products Liability—Design Defect—Affirmative Defense—Misuse
or Modification
VF-1202. Strict Products Liability—Design Defect—Risk-Benefit Test
VF-1203. Strict Products Liability—Failure to Warn
VF-1204. Products Liability—Negligence—Comparative Fault of Plaintiff at Issue
VF-1205. Products Liability—Negligent Failure to Warn
VF-1206. Products Liability—Express Warranty—Affirmative Defense—Not
“Basis of Bargain”
VF-1207. Products Liability—Implied Warranty of Merchantability—Affirmative
Defense—Exclusion of Implied Warranties
VF-1208. Products Liability—Implied Warranty of Fitness for a Particular
Purpose
VF-1209–VF-1299. Reserved for Future Use
696
held strictly liable unless doing so will enhance product safety, maximize
protection to the injured plaintiff, and apportion costs among the defendants.
[Citations.]’ ” (Hernandezcueva, supra, 234 Cal.App.4th at p. 258.)
• “California cases have found that a defendant involved in the
marketing/distribution process may be held strictly liable ‘if three factors are
present: (1) the defendant received a direct financial benefit from its activities
and from the sale of the product; (2) the defendant’s role was integral to the
business enterprise such that the defendant’s conduct was a necessary factor in
bringing the product to the initial consumer market; and (3) the defendant had
control over, or a substantial ability to influence, the manufacturing or
distribution process. [Citation.]’ . . . ‘The application of strict liability in any
particular factual setting is determined largely by the policies that underlie the
doctrine.’ ” (Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 270 [220
Cal.Rptr.3d 185], internal citation omitted.)
• “The component parts doctrine provides that the manufacturer of a component
part is not liable for injuries caused by the finished product into which the
component has been incorporated unless the component itself was defective and
caused harm.” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 355 [135
Cal.Rptr.3d 288, 266 P.3d 987].)
• “The only exceptions to this rule [that a product manufacturer generally may
not be held strictly liable for harm caused by another manufacturer’s product]
arise when the defendant bears some direct responsibility for the harm, either
because the defendant’s own product contributed substantially to the harm, or
because the defendant participated substantially in creating a harmful combined
use of the products.” (O’Neil, supra, 53 Cal.4th at p. 362, internal citation
omitted.)
• “[T]o hold a defendant strictly liable under a marketing/distribution theory, the
plaintiff must demonstrate that: ‘(1) the defendant received a direct financial
benefit from its activities and from the sale of the product; (2) the defendant’s
role was integral to the business enterprise such that the defendant’s conduct
was a necessary factor in bringing the product to the initial consumer market;
and (3) the defendant had control over, or a substantial ability to influence, the
manufacturing or distribution process.’ ” (Arriaga, supra, 167 Cal.App.4th at p.
1535.)
• “[T]he doctrine of strict liability may not be restricted on a theory of privity of
contract. Since the doctrine applies even where the manufacturer has attempted
to limit liability, they further make it clear that the doctrine may not be limited
on the theory that no representation of safety is made to the bystander. [¶¶] If
anything, bystanders should be entitled to greater protection than the consumer
or user where injury to bystanders from the defect is reasonably foreseeable.
Consumers and users, at least, have the opportunity to inspect for defects and to
limit their purchases to articles manufactured by reputable manufacturers and
sold by reputable retailers, whereas the bystander ordinarily has no such
opportunities. In short, the bystander is in greater need of protection from
699
defective products which are dangerous, and if any distinction should be made
between bystanders and users, it should be made, contrary to the position of
defendants, to extend greater liability in favor of the bystanders.” (Elmore v.
American Motors Corp. (1969) 70 Cal.2d 578, 586 [75 Cal.Rptr. 652, 451 P.2d
84].)
• “Engineers who do not participate in bringing a product to market and simply
design a product are not subject to strict products liability.” (Romine v. Johnson
Controls, Inc. (2014) 224 Cal.App.4th 990, 1008 [169 Cal.Rptr.3d 208].)
• “As a provider of services rather than a seller of a product, the hospital is not
subject to strict liability for a defective product provided to the patient during
the course of his or her treatment.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 316 [213 Cal.Rptr.3d 82] [however, causes of action based in
negligence are not affected].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1591–1601
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1207, 2:1215 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.10
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.20 et seq.
(Matthew Bender)
700
New September 2003; Revised April 2009, December 2009, June 2011
Directions for Use
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [risk-benefit design defect case]; Cronin v. J.B.E.
Olson Corp. (1972) 8 Cal.3d 121, 125–126 [104 Cal.Rptr. 433, 501 P.2d 1153]
[product misuse asserted as a defense to manufacturing defect]; see also CACI No.
1245, Affırmative Defense—Product Misuse or Modification.) Product misuse is a
complete defense to strict products liability if the defendant proves that an
unforeseeable abuse or alteration of the product after it left the manufacturer’s
hands was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co.
(1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.)
Misuse or modification that was a substantial factor in, but not the sole cause of,
plaintiff’s harm may also be considered in determining the comparative fault of the
plaintiff or of third persons. See CACI No. 1207A, Strict Liability—Comparative
Fault of Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of
Third Person.
Sources and Authority
• “[T]he term defect as utilized in the strict liability context is neither self-
defining nor susceptible to a single definition applicable in all contexts.”
(Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192
Cal.Rptr.3d 158].)
701
703
704
[Name of plaintiff] claims the [product]’s design was defective because the
[product] did not perform as safely as an ordinary consumer would have
expected it to perform. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] [manufactured/distributed/sold] the
[product];
2. That the [product] did not perform as safely as an ordinary
consumer would have expected it to perform when used or
misused in an intended or reasonably foreseeable way;
3. That [name of plaintiff] was harmed; and
4. That the [product]’s failure to perform safely was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2005, April 2009, December 2009, June
2011, January 2018
Directions for Use
The consumer expectation test and the risk-benefit test for design defect are not
mutually exclusive, and depending on the facts and circumstances of the case, both
may be presented to the trier of fact in the same case. (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 554 [221 Cal.Rptr.3d 102].) If both tests are
asserted by the plaintiff, the burden-of-proof instructions must make it clear that the
two tests are alternatives. (Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d
1101, 1106–1107 [206 Cal.Rptr. 431].)
The court must make an initial determination as to whether the consumer
expectation test applies to the product. In some cases, the court may determine that
the product is one to which the test may, but not necessarily does, apply, leaving
the determination to the jury. (See Saller v. Crown Cork & Seal Co., Inc. (2010)
187 Cal.App.4th 1220, 1233–1234 [115 Cal.Rptr.3d 151].) In such a case, modify
the instruction to advise the jury that it must first determine whether the product is
one about which an ordinary consumer can form reasonable minimum safety
expectations.
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [risk-benefit case]; see also CACI No. 1245,
705
who ordinarily use them.’ Therefore, in some cases, ordinary knowledge of the
product’s characteristics may permit an inference that the product did not
perform as safely as it should. ‘If the facts permit such a conclusion, and if the
failure resulted from the product’s design, a finding of defect is warranted
without any further proof,’ and the manufacturer may not defend by presenting
expert evidence of a risk/benefit analysis. . . . Nonetheless, the inherent
complexity of the product itself is not controlling on the issue of whether the
consumer expectations test applies; a complex product ‘may perform so
unsafely that the defect is apparent to the common reason, experience, and
understanding of its ordinary consumers.’ ” (Saller, supra, 187 Cal.App.4th at p.
1232, original italics, internal citations omitted.)
• “The critical question, in assessing the applicability of the consumer expectation
test, is not whether the product, when considered in isolation, is beyond the
ordinary knowledge of the consumer, but whether the product, in the context of
the facts and circumstances of its failure, is one about which the ordinary
consumers can form minimum safety expectations.” (Pannu v. Land Rover
North America, Inc. (2011) 191 Cal.App.4th 1298, 1311–1312 [120 Cal.Rptr.3d
605].)
• “Whether the jury should be instructed on either the consumer expectations test
or the risk/benefit test depends upon the particular facts of the case. In a jury
case, the trial court must initially determine as a question of foundation, within
the context of the facts and circumstances of the particular case, whether the
product is one about which the ordinary consumer can form reasonable
minimum safety expectations. ‘If the court concludes it is not, no consumer
expectation instruction should be given. . . . If, on the other hand, the trial
court finds there is sufficient evidence to support a finding that the ordinary
consumer can form reasonable minimum safety expectations, the court should
instruct the jury, consistent with Evidence Code section 403, subdivision (c), to
determine whether the consumer expectation test applies to the product at issue
in the circumstances of the case [or] to disregard the evidence about consumer
expectations unless the jury finds that the test is applicable. If it finds the test
applicable, the jury then must decide whether the product failed to perform as
safely as an ordinary consumer would expect when the product is used in an
intended or reasonably foreseeable manner.’ ” (Saller, supra, 187 Cal.App.4th at
pp. 1233–1234, internal citations omitted.)
• “[The] dual standard for design defect assures an injured plaintiff protection
from products that either fall below ordinary consumer expectations as to safety
or that, on balance, are not as safely designed as they should be.” (Barker,
supra, 20 Cal.3d at p. 418.)
• The consumer expectation test “acknowledges the relationship between strict
tort liability for a defective product and the common law doctrine of warranty,
which holds that a product’s presence on the market includes an implied
representation ‘that it [will] safely do the jobs for which it was built.’ ” (Soule,
supra, 8 Cal.4th at p. 562, internal citations omitted.)
707
• “[T]he jury may not be left free to find a violation of ordinary consumer
expectations whenever it chooses. Unless the facts actually permit an inference
that the product’s performance did not meet the minimum safety expectations of
its ordinary users, the jury must engage in the balancing of risks and benefits
required by the second prong of Barker. Accordingly, as Barker indicated,
instructions are misleading and incorrect if they allow a jury to avoid this risk-
benefit analysis in a case where it is required.” (Soule, supra, 8 Cal.4th at p.
568.)
• “[T]he consumer expectation test does not apply merely because the consumer
states that he or she did not expect to be injured by the product.” (Trejo, supra,
13 Cal.App.5th at p. 159.)
• “[T]he consumer expectation test is reserved for cases in which the everyday
experience of the product’s users permits a conclusion that the product’s design
violated minimum safety assumptions, and is thus defective regardless of expert
opinion about the merits of the design.” (Soule, supra, 8 Cal.4th at p. 567,
original italics.)
• “[A] product’s users include anyone whose injury was ‘reasonably
foreseeable.’ ” (Demara, supra, 13 Cal.App.5th at p. 559.)
• “If the facts permit an inference that the product at issue is one about which
consumers may form minimum safety assumptions in the context of a particular
accident, then it is enough for a plaintiff, proceeding under the consumer
expectation test, to show the circumstances of the accident and ‘the objective
features of the product which are relevant to an evaluation of its safety’
[citation], leaving it to the fact finder to ‘employ “[its] own sense of whether
the product meets ordinary expectations as to its safety under the circumstances
presented by the evidence.” ’ [Citations.] Expert testimony as to what
consumers ordinarily ‘expect’ is generally improper.” (Chavez, supra, 207
Cal.App.4th at p. 1303.)
• “That causation for a plaintiff’s injuries was proved through expert testimony
does not mean that an ordinary consumer would be unable to form assumptions
about the product’s safety. Accordingly, the trial court properly instructed the
jury on the consumer expectations test.” (Romine v. Johnson Controls, Inc.
(2014) 224 Cal.App.4th 990, 1004 [169 Cal.Rptr.3d 208], internal citations
omitted.)
• “An exception [to the rule that expert testimony is generally improper] exists
where the product is in specialized use with a limited group of consumers. In
such cases, ‘if the expectations of the product’s limited group of ordinary
consumers are beyond the lay experience common to all jurors, expert
testimony on the limited subject of what the product’s actual consumers do
expect may be proper.’ ” (McCabe v. American Honda Motor Co. (2002) 100
Cal.App.4th 1111, 1120 fn. 3 [123 Cal.Rptr.2d 303], internal citations omitted.)
• “In determining whether a product’s safety satisfies [the consumer expectation
test], the jury considers the expectations of a hypothetical reasonable consumer,
708
rather than those of the particular plaintiff in the case.” (Campbell v. General
Motors Corp. (1982) 32 Cal.3d 112, 126, fn. 6 [184 Cal.Rptr. 891, 649 P.2d
224].)
• “[E]vidence as to what the scientific community knew about the dangers . . .
and when they knew it is not relevant to show what the ordinary consumer of
[defendant]’s product reasonably expected in terms of safety at the time of
[plaintiff]’s exposure. It is the knowledge and reasonable expectations of the
consumer, not the scientific community, that is relevant under the consumer
expectations test.” (Morton v. Owens-Corning Fiberglas Corp. (1995) 33
Cal.App.4th 1529, 1536 [40 Cal.Rptr.2d 22].)
• “Where liability depends on the proof of a design defect, no practical difference
exists between negligence and strict liability; the claims merge.” (Lambert v.
General Motors (1998) 67 Cal.App.4th 1179, 1185 [79 Cal.Rptr.2d 657].)
• “ ‘[T]he law now requires a manufacturer to foresee some degree of misuse and
abuse of his product, either by the user or by third parties, and to take
reasonable precautions to minimize the harm that may result from misuse and
abuse. . . . [T]he extent to which designers and manufacturers of dangerous
machinery are required to anticipate safety neglect presents an issue of fact.’ ”
(Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1235 [63
Cal.Rptr.2d 422].)
• “[T]he plaintiff bears an initial burden of making ‘a prima facie showing that
the injury was proximately caused by the product’s design.’ This showing
requires evidence that the plaintiff was injured while using the product in an
intended or reasonably foreseeable manner and that the plaintiff’s ability to
avoid injury was frustrated by the absence of a safety device, or by the nature
of the product’s design. If this prima facie burden is met, the burden of proof
shifts to the defendant to prove, in light of the relevant factors, that the product
is not defective. Importantly, the plaintiff’s prima facie burden of producing
evidence that injury occurred while the product was being used in an intended
or reasonably foreseeable manner must be distinguished from the ultimate
burden of proof that rests with the defendant to establish that its product was
not defective because the plaintiff’s injury resulted from a misuse of the
product.” (Perez, supra, 188 Cal.App.4th at p. 678, original italics, internal
citations omitted.)
• “The use of asbestos insulation is a product that is within the understanding of
ordinary lay consumers.” (Saller, supra, 187 Cal.App.4th at p. 1236.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1615–1631
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1220–2:1222 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.11, Ch. 7, Proof, § 7.02 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
709
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.116
(Matthew Bender)
710
New September 2003; Revised February 2007, April 2009, December 2009,
December 2010, June 2011, January 2018
Directions for Use
The consumer expectation test and the risk-benefit test for design defect are not
mutually exclusive, and depending on the facts and circumstances of the case, both
may be presented to the trier of fact in the same case. (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 554 [221 Cal.Rptr.3d 102].) If the plaintiff
asserts both tests, the instructions must make it clear that the two tests are
alternatives. (Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101,
1106–1107 [206 Cal.Rptr. 431].) Risk-benefit weighing is not a formal part of, nor
may it serve as a defense to, the consumer expectations test. (Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1303 [144 Cal.Rptr.3d 326].)
711
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590]; see also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.) Product misuse is a complete defense to
strict products liability if the defendant proves that an unforeseeable abuse or
alteration of the product after it left the manufacturer’s hands was the sole cause of
the plaintiff’s injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.) Misuse or modification
that was a substantial factor in, but not the sole cause of, plaintiff’s harm may also
be considered in determining the comparative fault of the plaintiff or of third
persons. See CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff, and
CACI No. 1207B, Strict Liability—Comparative Fault of Third Person.
Aesthetics might be an additional factor to be considered in an appropriate case in
which there is evidence that appearance is important in the marketability of the
product. (See Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181
Cal.App.4th 1108, 1131 [105 Cal.Rptr.3d 485].)
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-
defining nor susceptible to a single definition applicable in all contexts.”
(Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192
Cal.Rptr.3d 158].)
• The risk-benefit test requires the plaintiff to first ‘demonstrate[] that the
product’s design proximately caused his injury.’ If the plaintiff makes this initial
showing, the defendant must then ‘establish, in light of the relevant factors,
that, on balance, the benefits of the challenged design outweigh the risk of
danger inherent in such design.’ ” (Kim v. Toyota Motor Corp. 6 Cal.5th 21, 30
[237 Cal.Rptr.3d 205, 424 P.3d 290], internal citation omitted.)
• “Appellants are therefore correct in asserting that it was not their burden to
show that the risks involved in the loader’s design—the lack of mechanical
safety devices, or of a warning—outweighed the benefits of these aspects of its
designs. The trial court’s instruction to the jury, which quite likely would have
been understood to place this burden on appellants, was therefore an error.”
(Lunghi v. Clark Equipment Co., Inc. (1984) 153 Cal.App.3d 485, 497–498
[200 Cal.Rptr. 387], internal citations omitted.)
• “[U]nder the risk/benefit test, the plaintiff may establish the product is defective
by showing that its design proximately caused his injury and the defendant then
712
fails to establish that on balance the benefits of the challenged design outweigh
the risk of danger inherent in such design. In such case, the jury must evaluate
the product’s design by considering the gravity of the danger posed by the
design, the likelihood such danger would occur, the feasibility of a safer
alternative design, the financial cost of an improved design, and the adverse
consequences to the consumer resulting from an alternative design. ‘In such
cases, the jury must consider the manufacturer’s evidence of competing design
considerations . . . , and the issue of design defect cannot fairly be resolved by
standardless reference to the “expectations” of an “ordinary consumer.” ’ ”
(Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233
[115 Cal.Rptr.3d 151], internal citations omitted.)
• “[T]he defendant’s burden is one ‘affecting the burden of proof, rather than
simply the burden of producing evidence.’ ” (Moreno v. Fey Manufacturing
Corp. (1983) 149 Cal.App.3d 23, 27 [196 Cal.Rptr. 487].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez, supra, 207 Cal.App.4th at p. 1303.)
• “Under Barker, in short, the plaintiff bears an initial burden of making ‘a prima
facie showing that the injury was proximately caused by the product’s design.’
This showing requires evidence that the plaintiff was injured while using the
product in an intended or reasonably foreseeable manner and that the plaintiff’s
ability to avoid injury was frustrated by the absence of a safety device, or by
the nature of the product’s design. If this prima facie burden is met, the burden
of proof shifts to the defendant to prove, in light of the relevant factors, that the
product is not defective. Importantly, the plaintiff’s prima facie burden of
producing evidence that injury occurred while the product was being used in an
intended or reasonably foreseeable manner must be distinguished from the
ultimate burden of proof that rests with the defendant to establish that its
product was not defective because the plaintiff’s injury resulted from a misuse
of the product.” (Perez, supra, 188 Cal.App.4th at p. 678, original italics,
internal citations omitted.)
• “ ‘[I]n evaluating the adequacy of a product’s design pursuant to [the risk-
benefit] standard, a jury may consider, among other relevant factors, the gravity
of the danger posed by the challenged design, the likelihood that such danger
would occur, the mechanical feasibility of a safer alternative design, the
financial cost of an improved design, and the adverse consequences to the
product and to the consumer that would result from an alternative design.’ ”
(Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 786–787 [64
Cal.Rptr.3d 908], internal citations omitted.)
• “[E]xpert evidence about compliance with industry standards can be considered
713
manufacturer be held to the standard of the risk-benefit test.’ Instead, the test
considering foreseeable risks of harm and alternative designs is applied to the
component part manufacturer when the alleged defect is in the component.”
(Gonzalez, supra, 154 Cal.App.4th at pp. 789–790.)
• “Where liability depends on the proof of a design defect, no practical difference
exists between negligence and strict liability; the claims merge.” (Lambert v.
General Motors (1998) 67 Cal.App.4th 1179, 1185 [79 Cal.Rptr.2d 657].)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1615–1631
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1223–2:1224 (The Rutter Group)
California Products Liability Actions, Ch. 7, Proof, § 7.02 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, §§ 190.110,
190.118–190.122 (Matthew Bender)
715
New September 2003; Revised April 2009, December 2009, June 2011, December
2011
Directions for Use
With regard to element 2, it has been often stated in the case law that a
manufacturer is liable for failure to warn of a risk that is “knowable in light of
generally recognized and prevailing best scientific and medical knowledge
available.” (See, e.g., Anderson v. Owens-Corning Fiberglas Corp. (1991) 53
Cal.3d 987, 1002 [281 Cal.Rptr. 528, 810 P.2d 549]; Carlin v. Superior Court
(1996) 13 Cal.4th 1104, 1112 [56 Cal.Rptr.2d 162, 920 P.2d 1347]; Saller v. Crown
Cork & Seal Company (2010) 187 Cal.App.4th 1220, 1239 [115 Cal.Rptr.3d 151];
716
Rosa v. City of Seaside (N.D. Cal. 2009) 675 F.Supp.2d 1006, 1012.) The advisory
committee believes that this standard is captured by the phrase “generally accepted
in the scientific community.” A risk may be “generally recognized” as a view
(knowledge) advanced by one body of scientific thought and experiment, but it may
not be the “prevailing” or “best” scientific view; that is, it may be a minority view.
The committee believes that when a risk is (1) generally recognized (2) as
prevailing in the relevant scientific community, and (3) represents the best
scholarship available, it is sufficient to say that the risk is knowable in light of “the
generally accepted” scientific knowledge.
The last bracketed paragraph should be read only in prescription product cases: In
the case of prescription drugs and implants, the physician stands in the shoes of the
ordinary user because it is through the physician that a patient learns of the
properties and proper use of the drug or implant. Thus, the duty to warn in these
cases runs to the physician, not the patient. (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App 5th 276, 319 [213 Cal.Rptr.3d 82], original italics.)
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [risk-benefit design defect case].) See also CACI
No. 1245, Affırmative Defense—Product Misuse or Modification. Product misuse is
a complete defense to strict products liability if the defendant proves that an
unforeseeable abuse or alteration of the product after it left the manufacturer’s
hands was the sole cause of the plaintiff’s injury. (Campbell v. Southern Pacific Co.
(1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.)
Misuse or modification that was a substantial factor in, but not the sole cause of,
plaintiff’s harm may also be considered in determining the comparative fault of the
plaintiff or of third persons. See CACI No. 1207A, Strict Liability—Comparative
Fault of Plaintiff, and CACI No. 1207B, Strict Liability—Comparative Fault of
Third Person.
Sources and Authority
• “Our law recognizes that even ‘ “a product flawlessly designed and produced
may nevertheless possess such risks to the user without a suitable warning that
it becomes ‘defective’ simply by the absence of a warning.” . . .’ Thus,
manufacturers have a duty to warn consumers about the hazards inherent in
their products. The purpose of requiring adequate warnings is to inform
consumers about a product’s hazards and faults of which they are unaware, so
that the consumer may then either refrain from using the product altogether or
avoid the danger by careful use.” (Taylor v. Elliott Turbomachinery Co., Inc.
(2009) 171 Cal.App.4th 564, 577 [90 Cal.Rptr.3d 414], internal citations and
footnote omitted.)
• “Negligence and strict products liability are separate and distinct bases for
717
liability that do not automatically collapse into each other because the plaintiff
might allege both when a product warning contributes to her injury.” (Conte v.
Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [85 Cal.Rptr.3d 299].)
• “The ‘known or knowable’ standard arguably derives from negligence
principles, and failure to warn claims are generally ‘ “rooted in negligence” to a
greater extent than’ manufacturing or design defect claims. Unlike those other
defects, a ‘ “warning defect” relates to a failure extraneous to the product itself’
and can only be assessed by examining the manufacturer’s conduct. These
principles notwithstanding, California law recognizes separate failure to warn
claims under both strict liability and negligence theories. In general, a product
seller will be strictly liable for failure to warn if a warning was feasible and the
absence of a warning caused the plaintiff’s injury. Reasonableness of the seller’s
failure to warn is immaterial in the strict liability context. Conversely, to prevail
on a claim for negligent failure to warn, the plaintiff must prove that the seller’s
conduct fell below the standard of care. If a prudent seller would have acted
reasonably in not giving a warning, the seller will not have been negligent.”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181 [202 Cal.Rptr.3d
460, 370 P.3d 1022], original italics, footnote and internal citations omitted.)
• “It is true that the two types of failure to warn claims are not necessarily
exclusive: ‘No valid reason appears to require a plaintiff to elect whether to
proceed on the theory of strict liability in tort or on the theory of
negligence. . . . [¶] Nor does it appear that instructions on the two theories will
be confusing to the jury. There is nothing inconsistent in instructions on the two
theories and to a large extent the two theories parallel and supplement each
other.’ Despite the often significant overlap between the theories of negligence
and strict liability based on a product defect, a plaintiff is entitled to instructions
on both theories if both are supported by the evidence.” (Oxford v. Foster
Wheeler LLC (2009) 177 Cal.App.4th 700, 717 [99 Cal.Rptr.3d 418].)
• “The actual knowledge of the individual manufacturer, even if reasonably
prudent, is not the issue. We view the standard to require that the manufacturer
is held to the knowledge and skill of an expert in the field; it is obliged to keep
abreast of any scientific discoveries and is presumed to know the results of all
such advances.” (Carlin, supra, 13 Cal.4th at p. 1113, fn. 3.)
• “[A] defendant in a strict products liability action based upon an alleged failure
to warn of a risk of harm may present evidence of the state of the art, i.e.,
evidence that the particular risk was neither known nor knowable by the
application of scientific knowledge available at the time of manufacture and/or
distribution.” (Anderson, supra, 53 Cal.3d at p. 1004.)
• “[T]here can be no liability for failure to warn where the instructions or
warnings sufficiently alert the user to the possibility of danger.” (Aguayo v.
Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1042 [228 Cal.Rptr.
768], internal citation omitted.)
• “A duty to warn or disclose danger arises when an article is or should be
718
722
& Co., Inc. (1969) 272 Cal.App.2d 645, 649 [77 Cal.Rptr. 709] [weed killer];
Harris v. Belton (1968) 258 Cal.App.2d 595, 608 [65 Cal.Rptr. 808] [skin tone
cream].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1467–1479
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.165 (Matthew Bender)
725
Derived from former CACI No. 1207 April 2009; Revised December 2009
Directions for Use
Give this instruction if the defendant alleges that the plaintiff’s own negligence
contributed to his or her harm. See also CACI No. 405, Comparative Fault of
Plaintiff. For an instruction on the comparative fault of a third person, see CACI
No. 1207B, Strict Liability—Comparative Fault of Third Person.
Subsequent misuse or modification may be considered in determining comparative
fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable
misuse or modification can be a complete defense if it is the sole cause of the
plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.
Sources and Authority
• “[W]e do not permit plaintiff’s own conduct relative to the product to escape
unexamined, and as to that share of plaintiff’s damages which flows from his
own fault we discern no reason of policy why it should, following Li, be borne
by others.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 737 [144
Cal.Rptr. 380, 575 P.2d 1162] [comparative fault applies to strict product
liability actions].)
• “[A] petitioner’s recovery may accordingly be reduced, but not barred, where
his lack of reasonable care is shown to have contributed to his injury.”
726
(Bradfield v. Trans World Airlines, Inc. (1979) 88 Cal.App.3d 681, 686 [152
Cal.Rptr. 172].)
• “The record does not support [defendant]’s assertion that modification of the
bracket was the sole cause of the accident. The record does indicate that if the
bracket had not been modified there would have been no need to remove it to
reach the flange bolts, and thus the modification was one apparent cause of
[plaintiff]’s death. However, a number of other causes, or potential causes, were
established, including: [plaintiff]’s failure to wear protective clothing; [third
party]’s failure to furnish the correct replacement bracket for the valve; [third
party]’s failure to furnish [employer] with all of the literature it received from
[defendant]; and negligence on the part of [employer] independent of its
modification of the valve, including violations of various federal Occupational
Safety and Health Administration regulations governing equipment and training
in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)
• “While a jury may well find [plaintiff]’s conduct substantially contributed to the
accident [citing this instruction], we cannot say that conduct, even if sufficient
to establish criminal storage of a firearm, absolves [defendants], as a matter of
law, from all liability for a design defect that may otherwise be shown to exist
in the Glock 21. [Plaintiff]’s responsibility for his own injuries is
quintessentially a question for the jury.” (Chavez v. Glock, Inc. (2012) 207
Cal.App.4th 1283, 1308 [144 Cal.Rptr.3d 326], internal citations omitted.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Torts, § 1542
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253
(Matthew Bender)
727
Derived from former CACI No. 1207 April 2009; Revised December 2009,
December 2015
Directions for Use
Give this instruction if the defendant has raised the issue of the comparative fault
of a third person who is not also a defendant at trial, including defendants who
settled before trial and nonjoined alleged tortfeasors. (See Dafonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 603 [7 Cal.Rptr.2d 238, 828 P.2d 140]; see also CACI No.
406, Apportionment of Responsibility.) For an instruction on the comparative fault
of the plaintiff, see CACI No. 1207A, Strict Liability—Comparative Fault of
Plaintiff.
This instruction may also be used to allocate liability between a negligent and a
strictly liable defendant (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322,
728
332 [146 Cal. Rptr. 550, 579 P.2d 441].) or between two strictly liable defendants
if multiple products are involved. (Arena v. Owens-Corning Fiberglas Corp. (1998)
63 Cal.App.4th 1178, 1198 [74 Cal.Rptr.2d 580].) However, there is no
comparative fault among entities in the distribution chain of the same product.
Each remains fully liable for the plaintiff’s economic and noneconomic damages.
(Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 325 [213 Cal.Rptr.3d 82].)
In the first sentence, include “also” if the defendant concedes some degree of
liability or alleges the comparative fault of the plaintiff, and select “fault” unless
the only basis for liability at issue is negligence. Include the last paragraph if any
of the defendants or others alleged to have contributed to the plaintiff’s harm are
not individuals.
Subsequent misuse or modification may be considered in determining comparative
fault if it was a substantial factor in causing the plaintiff’s injury. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 17 [56 Cal.Rptr.2d 455].) Unforeseeable
misuse or modification can be a complete defense if it is the sole cause of the
plaintiff’s harm. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) See also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.
Sources and Authority
• “[T]he comparative indemnity doctrine may be utilized to allocate liability
between a negligent and a strictly liable defendant.” (Safeway Stores, Inc.,
supra, 21 Cal.3d at p. 332.)
• “The record does not support [defendant]’s assertion that modification of the
bracket was the sole cause of the accident. The record does indicate that if the
bracket had not been modified there would have been no need to remove it to
reach the flange bolts, and thus the modification was one apparent cause of
[plaintiff]’s death. However, a number of other causes, or potential causes, were
established, including: [plaintiff]’s failure to wear protective clothing; [third
party]’s failure to furnish the correct replacement bracket for the valve; [third
party]’s failure to furnish [employer] with all of the literature it received from
[defendant]; and negligence on the part of [employer] independent of its
modification of the valve, including violations of various federal Occupational
Safety and Health Administration regulations governing equipment and training
in connection with the accident.” (Torres, supra, 49 Cal.App.4th at p. 17.)
• “This case does not present a situation where several defendants in the chain of
distribution seek apportionment under Proposition 51 based on their relevant
fault for injuries caused by a single defective product. In such a situation, courts
have held that Proposition 51 does not apply and each defendant is liable for
the plaintiff’s full noneconomic damages under traditional principles of joint
and several liability.” (Bigler-Engler, supra, 7 Cal.App 5th at p. 325, fn. 35.)
• “Proposition 51 is applicable in a strict liability asbestos exposure case where
multiple products cause the plaintiff’s injuries and the evidence provides a basis
to allocate liability for noneconomic damages between the defective products.
729
Where the evidence shows that a particular product is responsible for only a
part of plaintiff’s injury, Proposition 51 requires apportionment of the
responsibility for that part of the injury to that particular product’s chain of
distribution.” (Arena, supra, 63 Cal.App.4th at p. 1198.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1709
California Products Liability Actions, Ch. 8, Defenses, §§ 8.03, 8.04 (Matthew
Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.53, 460.182 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.253
(Matthew Bender)
730
supplier defense’ and ‘the bulk sales/sophisticated purchaser rule.’ Although the
doctrines are distinct, their application oftentimes overlaps and together they
present factors which should be carefully considered in evaluating the liability
of component suppliers. Those factors include whether the raw materials or
components are inherently dangerous, whether the materials are significantly
altered before integration into an end product, whether the supplier was
involved in designing the end-product and whether the manufacturer of the end
product was in a position to discover and disclose hazards.” (Artiglio, supra, 61
Cal.App.4th at p. 837.)
• “[T]he protection afforded to defendants by the component parts doctrine does
not apply when the product supplied has not been incorporated into a different
finished or end product but instead, as here, itself allegedly causes injury when
used in the manner intended by the product supplier.” (Ramos, supra, 63
Cal.4th at p. 504.)
• “The Restatement further explains ‘Product components include raw
materials. . . . Thus, when raw materials are contaminated or otherwise
defective within the meaning of § 2(a), the seller of the raw material is subject
to liability for harm caused by such defects.’ California courts have generally
adopted the component parts doctrine as it is articulated in the Restatement.”
(Brady v. Calsol, Inc. (2015) 241 Cal.App.4th 1212, 1219 [194 Cal.Rptr.3d
243], internal citation omitted.)
• “The California Supreme Court has not determined whether the component
parts defense is limited to fungible products.” (Romine, supra, 224 Cal.App.4th
at p. 1006, fn. 6.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1617, 1666
1209–1219. Reserved for Future Use
733
the theory of strict liability in tort or on the theory of negligence. . . . Nor does
it appear that instructions on the two theories will be confusing to the jury.
There is nothing inconsistent in instructions on the two theories and to a large
extent the two theories parallel and supplement each other.” (Jiminez v. Sears,
Roebuck & Co. (1971) 4 Cal.3d 379, 387 [93 Cal.Rptr. 769, 482 P.2d 681].)
• “The courts of this state are committed to the doctrine that the duty of care
exists in the absence of privity of contract not only where the article
manufactured is inherently dangerous but also where it is reasonably certain, if
negligently manufactured or constructed, to place life and limb in peril.”
(Sheward v. Virtue (1942) 20 Cal.2d 410, 412 [126 P.2d 345], internal citations
omitted.)
• Manufacturers or other suppliers of goods and buyers or users have a “special
relationship” giving rise to an affirmative duty to assist or protect. (6 Witkin,
Summary of Cal. Law (10th ed. 2005) §§ 1038–1042, 1048, 1049.)
• Restatement Second of Torts, section 388, comment (c), provides: “These rules
. . . apply to sellers, lessors, donors, or lenders, irrespective of whether the
chattel is made by them or by a third person. They apply to all kinds of
bailors. . . . They also apply to one who undertakes the repair of a chattel and
who delivers it back with knowledge that it is defective because of the work
which he is employed to do upon it.”
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1431
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.20
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.32
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.190 et seq.
(Matthew Bender)
735
can also take into account other applicable and relevant circumstances. As
framed by CACI No. 1221, the negligence inquiry asks if the manufacturer
failed to use the amount of care in designing the product that a reasonably
careful designer or manufacturer would have used in similar circumstances.”
(Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 430
[136 Cal.Rptr.3d 739], internal citations omitted.)
• “[F]reedom from negligence does not inure to the manufacturer because it
purchased parts from another which were defective.” (Sheward v. Virtue (1942)
20 Cal.2d 410, 412 [126 P.2d 345].)
• “The duty of a manufacturer with respect to the design of products placed on
the market is defined in the Restatement Second of Torts, section 398: ‘A
manufacturer of a chattel made under a plan or design which makes it
dangerous for the uses for which it is manufactured is subject to liability to
others whom he should expect to use the chattel or to be endangered by its
probable use for physical harm caused by his failure to exercise reasonable care
in the adoption of a safe plan or design.’ Thus, the manufacturer must use
reasonable care ‘to so design his product as to make it not accident-proof, but
safe for the use for which it was [sic] intended.’ What is ‘reasonable care,’ of
course, varies with the facts of each case, but it involves a balancing of the
likelihood of harm to be expected from a machine with a given design and the
gravity of harm if it happens against the burden of the precaution which would
be effective to avoid the harm.” (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d
465, 470 [85 Cal.Rptr. 629, 467 P.2d 229], internal citation omitted.)
• “ ‘[T]he test of negligent design “involves a balancing of the likelihood of harm
to be expected from a machine with a given design and the gravity of harm if it
happens against the burden of the precaution which would be effective to avoid
the harm.” [Citation.] . . . “A manufacturer or other seller can be negligent in
marketing a product because of the way it was designed. In short, even if a
seller had done all that he could reasonably have done to warn about a risk or
hazard related to the way a product was designed, it could be that a reasonable
person would conclude that the magnitude of the reasonably foreseeable harm
as designed outweighed the utility of the product as so designed.” [Citation.]
Thus, “most of the evidentiary matters” relevant to applying the risk/benefit test
in strict liability cases “are similar to the issues typically presented in a
negligent design case.” ’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283,
1305 [144 Cal.Rptr.3d 326].)
• “A danger is unreasonable when it is foreseeable, and the manufacturer’s ability,
actual, constructive, or potential, to forestall unreasonable danger is the measure
of its duty in the design of its product.” (Balido v. Improved Machinery, Inc.
(1972) 29 Cal.App.3d 633, 640 [105 Cal.Rptr. 890], disapproved on other
grounds in Regents of University of California v. Hartford Accident &
Indemnity Co. (1978) 21 Cal.3d 624, 641–642 [147 Cal.Rptr. 486, 581 P.2d
197].)
• “With respect to tests or inspections, it is well settled that where an article is
737
738
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590] [strict liability design defect risk-benefit case].) See
also CACI No. 1245, Affırmative Defense—Product Misuse or Modification.
Product misuse is a complete defense to strict products liability if the defendant
proves that an unforeseeable abuse or alteration of the product after it left the
manufacturer’s hands was the sole cause of the plaintiff’s injury. (Campbell v.
Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121];
see CACI No. 1245.) Misuse or modification that was a substantial factor in, but
not the sole cause of, plaintiff’s harm may also be considered in determining the
comparative fault of the plaintiff or of third persons. See CACI No. 1207A, Strict
Liability—Comparative Fault of Plaintiff, and CACI No. 1207B, Strict
Liability—Comparative Fault of Third Person.
The last bracketed paragraph is to be used in prescription drug cases only.
Sources and Authority
• “[T]he manufacturer has a duty to use reasonable care to give warning of the
dangerous condition of the product or of facts which make it likely to be
dangerous to those whom he should expect to use the product or be endangered
by its probable use, if the manufacturer has reason to believe that they will not
realize its dangerous condition.” (Putensen v. Clay Adams, Inc. (1970) 12
Cal.App.3d 1062, 1076–1077 [91 Cal.Rptr. 319].)
• “Negligence law in a failure-to-warn case requires a plaintiff to prove that a
manufacturer or distributor did not warn of a particular risk for reasons which
fell below the acceptable standard of care, i.e., what a reasonably prudent
manufacturer would have known and warned about.” (Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1305 [144 Cal.Rptr.3d 326], internal citation
omitted.)
• “Thus, the question defendants wanted included in the special verdict
form—whether a reasonable manufacturer under the same or similar
circumstances would have given a warning—is an essential inquiry in the
negligent failure to warn claim.” (Trejo v. Johnson & Johnson (2017) 13
Cal.App.5th 110, 137 [220 Cal.Rptr.3d 127] [citing this instruction].)
• “Negligence and strict products liability are separate and distinct bases for
liability that do not automatically collapse into each other because the plaintiff
might allege both when a product warning contributes to her injury.” (Conte v.
Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101 [85 Cal.Rptr.3d 299].)
• “The ‘known or knowable’ standard arguably derives from negligence
principles, and failure to warn claims are generally ‘ “rooted in negligence” to a
greater extent than’ manufacturing or design defect claims. Unlike those other
defects, a ‘ “warning defect” relates to a failure extraneous to the product itself’
and can only be assessed by examining the manufacturer’s conduct. These
740
• “Because the same warning label must appear on the brand-name drug as well
as its generic bioequivalent, a brand-name drug manufacturer owes a duty of
reasonable care in ensuring that the label includes appropriate warnings,
regardless of whether the end user has been dispensed the brand-name drug or
its generic bioequivalent. If the person exposed to the generic drug can
reasonably allege that the brand-name drug manufacturer’s failure to update its
warning label foreseeably and proximately caused physical injury, then the
brand-name manufacturer’s liability for its own negligence does not
automatically terminate merely because the brand-name manufacturer
transferred its rights in the brand-name drug to a successor manufacturer.”
(T.H., supra, 4 Cal.5th at p. 156.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1317–1321
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1271, 2:1295 (The Rutter Group)
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.21, Ch. 7, Proof, § 7.05 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11
(Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, 190.165 et seq.
(Matthew Bender)
742
744
Greenberg (1953) 40 Cal.2d 740, 742 [255 P.2d 810].) The bailor is not an
insurer or guarantor. (Tierstein, supra, 174 Cal.App.2d at p. 841.)
• Restatement Second of Torts, section 408, provides: “One who leases a chattel
as safe for immediate use is subject to liability to those whom he should expect
to use the chattel, or to be endangered by its probable use, for physical harm
caused by its use in a manner for which, and by a person for whose use, it is
leased, if the lessor fails to exercise reasonable care to make it safe for such use
or to disclose its actual condition to those who may be expected to use it.”
• This Restatement section was cited with approval in Rae v. California
Equipment Co. (1939) 12 Cal.2d 563, 569 [86 P.2d 352].
• “The general rule is that the only duty which a gratuitous bailor owes either to
the bailee or to third persons is to warn them of actually known defects which
render the chattel dangerous for the purpose for which it is ordinarily used; he
has no liability for injuries caused by defects in the subject matter of the
bailment of which he was not aware.” (Tierstein, supra, 174 Cal.App.2d at p.
841.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1506
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.053 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 413, Personal Property Leases,
§ 413.34 (Matthew Bender)
1225–1229. Reserved for Future Use
746
California Commercial Code. (See Orichian v. BMW of North America, LLC (2014)
226 Cal.App.4th 1322, 1333–1334 [172 Cal.Rptr.3d 876]; Comm. Code, § 2313.) If
a breach of written warranty under the federal Magnuson-Moss Warranty Act (see
15 U.S.C. § 2301 et seq.) is alleged, give the first option for element 1. (See 15
U.S.C. §§ 2310(d)(1), 2301(6).)
The giving of notice to the seller is not required in personal injury or property
damage lawsuits against a manufacturer or another supplier with whom the plaintiff
has not directly dealt. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d
57, 61 [27 Cal.Rptr. 697, 377 P.2d 897]; Gherna v. Ford Motor Co. (1966) 246
Cal.App.2d 639, 652–653 [55 Cal.Rptr. 94].)
If an instruction on the giving of notice to the seller is needed, see CACI
No. 1243, Notification/Reasonable Time.
Sources and Authority
• Express Warranties. California Uniform Commercial Code section 2313.
• Applicable to “Transactions in Goods.” California Uniform Commercial Code
section 2102.
• “Goods” Defined. California Uniform Commercial Code section 2105.
• Damages Under Commercial Code. California Uniform Commercial Code
section 2714.
• “An express warranty ‘is a contractual promise from the seller that the goods
conform to the promise. If they do not, the buyer is entitled to recover the
difference between the value of the goods accepted by the buyer and the value
of the goods had they been as warranted.’ ” (Dagher v. Ford Motor Co. (2015)
238 Cal.App.4th 905, 928 [190 Cal.Rptr.3d 261].)
• “A warranty relates to the title, character, quality, identity, or condition of the
goods. The purpose of the law of warranty is to determine what it is that the
seller has in essence agreed to sell.” (Keith v. Buchanan (1985) 173 Cal.App.3d
13, 20 [220 Cal.Rptr. 392], internal citation omitted.)
• “The essential elements of a cause of action under the California Uniform
Commercial Code for breach of an express warranty to repair defects are (1) an
express warranty to repair defects given in connection with the sale of goods;
(2) the existence of a defect covered by the warranty; (3) the buyer’s notice to
the seller of such a defect within a reasonable time after its discovery; (4) the
seller’s failure to repair the defect in compliance with the warranty; and (5)
resulting damages.” (Orichian, supra, 226 Cal.App.4th at pp. 1333–1334,
internal citations omitted.)
• “Privity is not required for an action based upon an express warranty.” (Hauter
v. Zogarts (1975) 14 Cal.3d 104, 115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “Used car owners that obtain their vehicles via private sales and who comply
with the warranty terms may seek to enforce the express warranty against the
manufacturer by bringing an action under the Commercial Code based on
748
breach of express warranty. Such an action does not require that the plaintiff
purchase the vehicle from a retail seller.” (Dagher, supra, 238 Cal.App.4th at p.
928.)
• “ ‘The determination as to whether a particular statement is an expression of
opinion or an affirmation of a fact is often difficult, and frequently is dependent
upon the facts and circumstances existing at the time the statement is made.’ ”
(Keith, supra, 173 Cal.App.3d at p. 21, internal citation omitted.)
• “Statements made by a seller during the course of negotiation over a contract
are presumptively affirmations of fact unless it can be demonstrated that the
buyer could only have reasonably considered the statement as a statement of the
seller’s opinion. Commentators have noted several factors which tend to
indicate an opinion statement. These are (1) a lack of specificity in the
statement made, (2) a statement that is made in an equivocal manner, or (3) a
statement which reveals that the goods are experimental in nature.” (Keith,
supra, 173 Cal.App.3d at p. 21.)
• “It is important to note . . . that even statements of opinion can become
warranties under the code if they become part of the basis of the bargain.”
(Hauter, supra, 14 Cal.3d at p. 115, fn. 10.)
• “The basis of the bargain requirement represents a significant change in the law
of warranties. Whereas plaintiffs in the past have had to prove their reliance
upon specific promises made by the seller, the Uniform Commercial Code
requires no such proof.” (Hauter, supra, 14 Cal.3d at p. 115, internal citations
omitted.)
• “It is immaterial whether defendant had actual knowledge of the
contraindications. ‘The obligation of a warranty is absolute, and is imposed as a
matter of law irrespective of whether the seller knew or should have known of
the falsity of his representations.’ ” (Grinnell v. Charles Pfizer & Co. (1969)
274 Cal.App.2d 424, 442 [79 Cal.Rptr. 369], internal citations omitted.)
• “[A] sale is ordinarily an essential element of any warranty, express or implied
. . . .” (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 759 [137
Cal.Rptr. 417], internal citations omitted.)
• “Neither Magnuson-Moss nor the California Uniform Commercial Code
requires proof that a defect substantially impairs the use, value, or safety of a
vehicle in order to establish a breach of an express or written warranty, as
required under Song-Beverly.” (Orichian, supra, 226 Cal.App.4th at p. 1331; fn.
9, see CACI No. 3204, “Substantially Impaired” Explained.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 56–66
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§§ 2.31–2.33, Ch. 7, Proof, § 7.03 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.23, 502.42–502.50, 502.140–502.150 (Matthew Bender)
749
20 California Points and Authorities, Ch. 206, Sales, § 206.60 et seq. (Matthew
Bender)
750
753
• Although privity appears to be required for actions based upon the implied
warranty of merchantability, there are exceptions to this rule, such as one for
members of the purchaser’s family. (Hauter v. Zogarts (1975) 14 Cal.3d 104,
115, fn. 8 [120 Cal.Rptr. 681, 534 P.2d 377].) Vertical privity is also waived for
employees. (Peterson v. Lamb Rubber Co. (1960) 54 Cal.2d 339 [5 Cal.Rptr.
863, 353 P.2d 575].) A plaintiff satisfies the privity requirement when he or she
leases or negotiates the sale or lease of the product. (United States Roofing,
supra.)
Secondary Sources
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.31
(Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§§ 502.24, 502.51, 502.220 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales (Matthew Bender)
756
[Name of plaintiff] claims that [he/she] was harmed by the [food product]
that was sold by [name of defendant] because the [food product] was not
fit for human consumption. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] [ate/drank] a [food product] sold by [name
of defendant];
2. That, at the time of purchase, [name of defendant] was in the
business of selling the [food product] [or by [his/her] occupation
held [himself/herself/itself] out as having special knowledge or
skill regarding this [food product]];
3. That the [food product] was harmful when consumed;
4. That the harmful condition would not reasonably be expected by
the average consumer;
5. That [name of plaintiff] was harmed; and
6. That the [food product] was a substantial factor in causing [name
of plaintiff]’s harm.
758
New September 2003; Revoked June 2010; Restored and Revised December 2010
Sources and Authority
• Creation of Express Warranties. California Uniform Commercial Code section
2313.
• “The key under [California Uniform Commercial Code section 2313] is that the
seller’s statements—whether fact or opinion—must become ‘part of the basis of
the bargain.’ The basis of the bargain requirement represents a significant
change in the law of warranties. Whereas plaintiffs in the past have had to
prove their reliance upon specific promises made by the seller, the Uniform
Commercial Code requires no such proof. According to official comment 3 to
the Uniform Commercial Code following section 2313, ‘no particular reliance
. . . need be shown in order to weave [the seller’s affirmations of fact] into the
fabric of the agreement. Rather, any fact which is to take such affirmations,
once made, out of the agreement requires clear affirmative proof.’ ” (Hauter v.
Zogarts (1975) 14 Cal.3d 104, 115 [120 Cal.Rptr. 681, 534 P.2d 377, internal
citations and footnote omitted.)
• “The California Supreme Court, in discussing the continued viability of the
reliance factor, noted that commentators have disagreed in regard to the impact
of this development. Some have indicated that it shifts the burden of proving
nonreliance to the seller, and others have indicated that the code eliminates the
concept of reliance altogether.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13,
22 [220 Cal.Rptr. 392], citing Hauter, supra, 14 Cal.3d at pp. 115–116.)
• “The official Uniform Commercial Code comment in regard to section 2-313
‘indicates that in actual practice affirmations of fact made by the seller about
the goods during a bargain are regarded as part of the description of those
759
parties in fact,’ not, as Keith would suggest, to proof that they were not an
inducement for the purchase. Relying on Keith, the court in effect equated the
concept of the ‘bargain in fact of the parties’ with the concept of reliance, but
. . . the two are not synonymous. Moreover, the opinion in Keith contradicts
itself on this matter. On the one hand the opinion states unequivocally that ‘[i]t
is clear’ section 2313 ‘purposefully abandoned’ the concept of reliance. On the
other hand, we must ask if section 2313 has eliminated the concept of reliance
from express warranty law all together, by what logic can reliance reappear, by
its absence, as an affirmative defense?” (Weinstat, supra, 180 Cal.App.4th at p.
1234, internal citation omitted.)
Secondary Sources
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.62
(Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.60 (Matthew Bender)
21 California Legal Forms, Ch. 52, Sales of Goods Under the Uniform Commercial
Code, § 52.290[1] (Matthew Bender)
Matthew Bender Practice Guide: California Contract Litigation, Ch. 24, Suing or
Defending Action for Breach of Warranty, 24.36[4]
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
761
disclaimer in a warranty given to the buyer after he signs the contract is not
binding.” (Dorman v. International Harvester Co. (1975) 46 Cal.App.3d 11,
19–20 [120 Cal.Rptr. 516].)
• “Interpretation of a written document, where extrinsic evidence is unnecessary,
is a question of law for the trial court to determine.” (Temple v. Velcro USA,
Inc. (1983) 148 Cal.App.3d 1090, 1095 [196 Cal.Rptr. 531], internal citations
omitted.)
Secondary Sources
California Products Liability Actions, Ch. 8, Defenses, § 8.07 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties, § 502.23
(Matthew Bender)
763
765
767
user knows, or should know, of the item’s hazards. In view of this requirement,
the intermediary’s sophistication is not, as matter of law, sufficient to avert
liability; there must be a sufficient reason for believing that the intermediary’s
sophistication is likely to operate to protect the user, or that the user is likely to
discover the hazards in some other manner. The fact that the user is an
employee or servant of the sophisticated intermediary cannot plausibly be
regarded as a sufficient reason, as a matter of law, to infer that the latter will
protect the former. We therefore reject [defendant]’s contention that an
intermediary’s sophistication invariably shields suppliers from liability to the
intermediary’s employees or servants.” (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1296–1297 [164 Cal.Rptr.3d 112].)
• “In order to establish the defense, a manufacturer must demonstrate that
sophisticated users of the product know what the risks are, including the degree
of danger involved (i.e., the severity of the potential injury), and how to use the
product to reduce or avoid the risks, to the extent that information is known to
the manufacturer.” (Buckner, supra, 222 Cal.App.4th at p. 536.)
• “ ‘Under the “should have known” standard there will be some users who were
actually unaware of the dangers. However, the same could be said of the
currently accepted obvious danger rule; obvious dangers are obvious to most,
but are not obvious to absolutely everyone. The obvious danger rule is an
objective test, and the courts do not inquire into the user’s subjective
knowledge in such a case. In other words, even if a user was truly unaware of a
product’s hazards, that fact is irrelevant if the danger was objectively obvious.
[Citations.] Thus, under the sophisticated user defense, the inquiry focuses on
whether the plaintiff knew, or should have known, of the particular risk of harm
from the product giving rise to the injury.’ [Citation]” (Moran v. Foster Wheeler
Energy Corp. (2016) 246 Cal.App.4th 500, 511 [200 Cal.Rptr.3d 902].)
• “[S]peculation about a risk does not give rise to constructive knowledge of a
risk under the ‘should have known’ test.” (Scott v. Ford Motor Co. (2014) 224
Cal.App.4th 1492, 1501 [169 Cal.Rptr.3d 823], original italics.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1467, 1537,
1541–1542
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶ 2:1277 (The Rutter Group)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.185 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.246
(Matthew Bender)
770
New April 2009; Revised December 2009, June 2011, December 2013
Directions for Use
Give this instruction if the defendant claims a complete defense to strict product
liability because the product was misused or modified after it left the defendant’s
possession and control in an unforeseeable way, and the evidence permits defendant
to argue that the subsequent misuse or modification was the sole cause of the
plaintiff’s injury. (See Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121].) If misuse or modification was a substantial
factor contributing to, but not the sole cause of, plaintiff’s harm, there is no
complete defense, but the conduct of the plaintiff or of third parties may be
considered under principles of comparative negligence or fault. (See Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 15–21 [56 Cal.Rptr.2d 455].) See CACI
No. 1207A, Strict Liability—Comparative Fault of Plaintiff, and CACI No. 1207B,
Strict Liability—Comparative Fault of Third Person.
Third party negligence that is the immediate cause of an injury may be viewed as a
superseding cause if it is so highly extraordinary as to be unforeseeable. Product
misuse or modification may be deemed to be a superseding cause, which provides a
complete defense to liability. (See Torres, supra, 49 Cal.App. 4th at pp. 18–19.)
Element 2 incorporates this aspect of superseding cause as an explanation of what
is meant by “sole cause.” If misuse or modification truly were the sole cause, the
product would not be defective.
It would appear that at least one court views superseding cause as a different
standard from sole cause. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658,
685 [115 Cal.Rptr.3d 590] [product misuse may serve as a complete defense when
the misuse was so unforeseeable that it should be deemed the sole or superseding
cause], original italics.)
771
of a kind and degree so far beyond the risk the original tortfeasor should have
foreseen that the law deems it unfair to hold him responsible.’ ” (Torres, supra,
49 Cal.App.4th at pp. 18–19, internal citations omitted.)
• “ ‘Misuse’ is a defense only when that misuse is the actual cause of the
plaintiff’s injury, not when some other defect produces the harm. This causation
is one of the elements of the ‘misuse’ affirmative defense and thus the burden
falls on the defendant to prove it.” (Huynh v. Ingersoll-Rand (1993) 16
Cal.App.4th 825, 831 [20 Cal.Rptr.2d 296], internal citation omitted.)
• “[Defendant] further contends that [plaintiff]’s injuries arose not from a
defective product, but rather, from his parents’ modification of the product or
their negligent supervision of its use. These arguments cannot be advanced by
demurrer. Creation of an unreasonable risk of harm through product
modification or negligent supervision is not clearly established on the face of
[plaintiff]’s complaint. Instead, these theories must be pled as affirmative
defenses.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135,
141 [229 Cal.Rptr. 605].)
• “[Defendant]’s alternative contention [plaintiff]’s failure to safely store the
Glock 21 was the sole proximate cause of his injuries is not an appropriate
ground for granting summary judgment. Product misuse, an affirmative defense,
is a superseding cause of injury that absolves a tortfeasor of his or her own
wrongful conduct only when the misuse was ‘ “so highly extraordinary as to be
unforeseeable.” ’ [citing this instruction] ‘However, foreseeability is a question
for the jury unless undisputed facts leave no room for a reasonable difference of
opinion.’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308 [144
Cal.Rptr.3d 326], internal citations omitted.)
• “[T]here are cases in which the modification of a product has been determined
to be so substantial and unforeseeable as to constitute a superseding cause of an
injury as a matter of law. However, foreseeability is a question for the jury
unless undisputed facts leave no room for a reasonable difference of opinion.
Thus, the issue of superseding cause is generally one of fact. Superseding cause
has been viewed as an issue of fact even in cases where ‘safety neglect’ by an
employer has increased the risk of injury, or modification of the product has
made it more dangerous.” (Torres, supra, 49 Cal.App.4th at p. 19, internal
citations omitted.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1530, 1531
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶ 2:1329 et seq. (The Rutter Group)
California Product Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.13[4] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.183 (Matthew Bender)
773
774
[Name of defendant] may not be held liable for design defects in the
[product] if it proves all of the following:
1. That [name of defendant] contracted with the United States
government to provide the [product] for military use;
2. That the United States approved reasonably precise specifications
for the [product];
3. That the [product] conformed to those specifications; and
4. That [name of defendant] warned the United States about the
dangers in the use of the [product] that were known to [name of
defendant] but not to the United States.
777
[Name of defendant] may not be held liable for failure to warn about the
dangers in the use of the [product] if it proves all of the following:
1. That [name of defendant] contracted with the United States
government to provide the [product] for military use;
2. That the United States imposed reasonably precise specifications
on [name of defendant] regarding the provision of warnings for
the [product];
3. That the [product] conformed to those specifications regarding
warnings; and
4. That [name of defendant] warned the United States about the
dangers in the use of the [product] that were known to [name of
defendant] but not to the United States.
States exercised its discretion and approved the warnings, if any; (2) the
contractor provided warnings that conformed to the approved warnings; and (3)
the contractor warned the United States of the dangers in the equipment’s use
about which the contractor knew, but the United States did not.’ ” (Oxford,
supra, 177 Cal.App.4th at p. 712.)
• “As in design defect cases, in order to satisfy the first condition—government
‘approval’—in failure to warn cases, the government’s involvement must
transcend rubber stamping. And where the government goes beyond approval
and actually determines for itself the warnings to be provided, the contractor
has surely satisfied the first condition because the government exercised its
discretion. The second condition in failure to warn cases, as in design defect
cases, assures that the defense protects the government’s, not the contractor’s,
exercise of discretion. Finally, the third condition encourages frank
communication to the government of the equipment’s dangers and increases the
likelihood that the government will make a well-informed judgment.” (Oxford,
supra, 177 Cal.App.4th at p. 712, quoting Tate, supra, 55 F.3d at p. 1157.)
• “Under California law, a manufacturer has a duty to warn of a danger when the
manufacturer has knowledge of the danger or has reason to know of it and has
no reason to know that those who use the product will realize its dangerous
condition. Whereas the government contractor’s defense may be used to trump a
design defect claim by proving that the government, not the contractor, is
responsible for the defective design, that defense is inapplicable to a failure to
warn claim in the absence of evidence that in making its decision whether to
provide a warning . . . , [defendant] was ‘acting in compliance with
“reasonably precise specifications” imposed on [it] by the United States.’ ”
(Butler v. Ingalls Shipbuilding (9th Cir. 1996) 89 F.3d 582, 586.)
• “In a failure-to-warn action, where no conflict exists between requirements
imposed under a federal contract and a state law duty to warn, regardless of any
conflict which may exist between the contract and state law design
requirements, Boyle commands that we defer to the operation of state law.”
(Butler, supra, 89 F.3d at p. 586.)
• “Defendants’ evidence did not establish as a matter of law the necessary
significant conflict between federal contracting requirements and state law.
Although defendants’ evidence did show that certain warnings were required by
the military specifications, that evidence did not establish that the specifications
placed any limitation on additional information from the manufacturers to users
of their products. Instead, the evidence suggested no such limitation existed.”
(Jackson v. Deft, Inc. (1990) 223 Cal.App.3d 1305, 1317 [273 Cal.Rptr. 214].)
• “The [United States] Supreme Court noted that in areas of ‘ “uniquely federal
interests” ’ state law may be preempted or displaced by federal law, and that
civil liability arising from the performance of federal procurement contracts is
such an area. The court further determined that preemption or displacement of
state law occurs in an area of uniquely federal interests only where a
‘ “significant conflict” ’ exists between an identifiable federal policy or interest
779
and the operation of state law.” (Oxford, supra, 177 Cal.App.4th at p. 708,
quoting Boyle, supra, 487 U.S. at pp. 500, 504, 507, 512.)
• “[T]he Supreme Court in Boyle did not expressly limit its holding to products
liability causes of action. Thus, the government contractor defense is applicable
to related negligence claims.” (Oxford, supra, 177 Cal.App.4th at p. 711.)
• “[T]he fact that a company supplies goods to the military does not, in and of
itself, immunize it from liability for the injuries caused by those goods. Where
the goods ordered by the military are those readily available, in substantially
similar form, to commercial users, the military contractor defense does not
apply.” (In re Hawaii Federal Asbestos Cases (9th Cir. 1992) 960 F.2d 806,
811.)
• “In our view, if a product is produced according to military specifications and
used by the military because of particular qualities which serve a military
purpose, and is incidentally sold commercially as well, that product may
nonetheless still qualify as military equipment under the military contractor
defense.” (Jackson, supra, 223 Cal.App.3d at p. 1319.)
• “While courts such as the court in Hawaii have sought to confine the
government contractor defense to products that are made exclusively for the
military, we agree with the court in Jackson that this limitation is unduly
confining. Though the court in Boyle discussed the parameters of the contractor
defense in terms of ‘military equipment,’ use of that term appears to have
followed from the facts of that case. Other courts considering this issue have
concluded the defense is not limited to military contracts. . . . [Boyle’s]
application focuses instead on whether the issue or area is one involving
‘uniquely federal interests’ and, if so, whether the application of state law
presents a ‘significant conflict’ with federal policy.” (Oxford, supra, 177
Cal.App.4th at p. 710; the split on this issue in the federal and other state courts
is noted in Carley v. Wheeled Coach (3d Cir. 1993) 991 F.2d 1117, 1119, fn. 1.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1538
1 California Products Liability Actions, Ch. 8, Defenses, § 8.05 (Matthew Bender)
2 Levy et al., California Torts, Ch. 21, Aviation Tort Law, § 21.02[6] (Matthew
Bender)
2 California Forms of Pleading and Practice, Ch. 16, Airplanes and Airports,
§ 16.10[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.104[23] (Matthew Bender)
780
dangerous merely because it will make some people drunk, and is especially
dangerous to alcoholics; but bad whiskey, containing a dangerous amount of
fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably
dangerous merely because the effects of smoking may be harmful; but tobacco
containing something like marijuana may be unreasonably dangerous. Good
butter is not unreasonably dangerous merely because, if such be the case, it
deposits cholesterol in the arteries and leads to heart attacks; but bad butter,
contaminated with poisonous fish oil, is unreasonably dangerous.”
• “Additional limitations on the scope of the immunity may be deduced from the
history and purpose of the Immunity Statute . . . .The statute’s express premise
. . . was ‘that suppliers of certain products which are “inherently unsafe,” but
which the public wishes to have available despite awareness of their dangers,
should not be responsible in tort for resulting harm to those who voluntarily
consumed the products despite such knowledge.’ . . . [T]he Immunity Statute
[is] based on the principle that ‘if a product is pure and unadulterated, its
inherent or unavoidable danger, commonly known to the community which
consumes it anyway, does not expose the seller to liability for resulting harm to
a voluntary user.’ ” (Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th
856, 862 [123 Cal.Rptr.2d 61, 50 P.3d 769], internal citations omitted.)
• “The law should not ignore interactive effects that might render a product more
dangerous than is contemplated by the ordinary consumer who purchases it and
possesses the ordinary knowledge common to the community as to the product’s
characteristics. Therefore, when a court addresses whether a multi-ingredient
product is a common consumer product for purposes of Civil Code section
1714.45 and the ingredients have an interactive effect, the product and its
inherent dangers must be considered as a whole so that the interactive effects of
its ingredients are not overlooked or trivialized.” (Fiorini v. City Brewing Co.,
LLC (2014) 231 Cal.App.4th 306, 325 [179 Cal.Rptr.3d 827].)
• “The foregoing inferences preclude us from finding, as a matter of law, that
[product] was a common consumer product for purposes of Civil Code section
1714.45, subdivision (a). As a result, that factual question should be presented
to the trier of fact.” (Fiorini, supra, 231 Cal.App.4th at p. 326, footnote
omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2010) Torts, § 1745 et seq.
California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.11[5] (Matthew Bender)
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation, § 74.04
(Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§§ 460.11, 460.70 (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.80A et seq.
(Matthew Bender)
782
relevant in the context of a raw material or other component supplied for use in
making a finished product. Under California law, a product manufacturer has a
legal duty to warn its customers of all known or knowable dangers arising from
use of the product. However, regardless of the purchaser’s independent duty, the
supplier cannot reasonably ignore known facts that would provide notice of a
substantial risk that the intermediary might fail to warn or that warnings might
fail to reach the consumer.” (Webb, supra, 63 Cal.4th at p. 191, internal
citations omitted.)
• “When raw materials are supplied in bulk for the manufacture of a finished
product, it may be difficult for the supplier to convey warnings to the product’s
ultimate consumers. These suppliers likely have no way to identify ultimate
product users and no ready means to communicate with them.” (Webb, supra,
63 Cal.4th at p. 191.)
• “We recognize that direct proof of actual reliance may be difficult to obtain
when, as in the case of latent disease, the material was supplied to an
intermediary long ago. However, actual reliance is an inference the factfinder
should be able to draw from circumstantial evidence about the parties’
dealings.” (Webb, supra, 63 Cal.4th at p. 193.)
Secondary Sources
9 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1174A
1 California Products Liability Actions, Ch. 2, Liability for Defective Products,
§ 2.21[3][c] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 460, Products Liability,
§ 460.11[10][b] (Matthew Bender)
19 California Points and Authorities, Ch. 190, Products Liability, § 190.263 et seq.
(Matthew Bender)
1250–1299. Reserved for Future Use
786
[Name of defendant]: %
[Name of plaintiff]: %
[Name/description of other person]: %
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, June 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 1201, Strict Liability—Manufacturing
Defect—Essential Factual Elements, CACI No. 1207A, Strict
Liability—Comparative Fault of Plaintiff, and CACI No. 1207B, Strict
Liability—Comparative Fault of Third Person. If product misuse or modification is
alleged as a complete defense (see CACI No. 1245, Affırmative Defense—Product
Misuse or Modification), questions 2 and 3 of CACI No. VF-1201, Strict Products
Liability—Design Defect—Consumer Expectation Test—Affırmative
Defense—Misuse or Modification, may be included after question 1.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the negligence or fault of more than one third person is alleged to have
contributed to the plaintiff’s injury, repeat questions 7 and 8.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
789
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
791
New September 2003; Revised October 2004, April 2007, April 2009, December
2010, June 2011, December 2011, December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 1203, Strict Liability—Design
Defect—Consumer Expectation Test—Essential Factual Elements, CACI No. 1204,
Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual
Elements—Shifting Burden of Proof, and CACI No. 1245, Affırmative
Defense—Product Misuse or Modification. If the comparative fault or negligence of
the plaintiff or of third persons is at issue, questions 6 through 9 of CACI No. VF-
1200, Strict Products Liability—Manufacturing Defect—Comparative Fault at
Issue, may be added at the end.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
This verdict form can be used in a case in which the jury will decide design defect
under both the consumer expectation and the risk-benefit tests. If only the risk-
benefit test is at issue, omit questions 4 and 5. If only the consumer expectation
test is at issue, omit question 6. Modify the transitional language following
questions 5 and 6 if only one test is at issue in the case. Include question 4 if the
court has decided to give to the jury the preliminary question as to whether the
consumer expectation test can be applied to the product at issue in the case. (See
Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233–1234
[115 Cal.Rptr.3d 151].) An additional question may be needed if the defendant
claims that the plaintiff’s injuries were caused by some product other than the
defendant’s.
If specificity is not required, users do not have to itemize all the damages listed in
question 8. The breakdown is optional depending on the circumstances.
If different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
792
793
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2010, June 2011,
December 2011, December 2016
795
796
TOTAL 100 %
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
798
New September 2003; Revised April 2007, December 2009, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1220, Negligence—Essential Factual
Elements, and CACI No. 405, Comparative Fault of Plaintiff.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
799
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
801
New September 2003; Revised April 2007, December 2010, June 2011, December
2016
Directions for Use
This verdict form is based on CACI No. 1222, Negligence—Manufacturer or
Supplier—Duty to Warn—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
802
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2011, December 2016
Directions for Use
This verdict form is based on CACI No. 1230, Express Warranty—Essential
Factual Elements, and CACI No. 1240, Affırmative Defense to Express
Warranty—Not “Basis of Bargain.”
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that he or she made a
reasonable attempt to notify the defendant of the defect. Thus, if appropriate, the
following question should be added before the question regarding the plaintiff’s
harm: “Did [name of plaintiff] take reasonable steps to notify [name of defendant]
within a reasonable time that the [product] [was not/did not perform] as
requested?”
804
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Do not include question 2 if the affirmative defense is not at issue.
805
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1231, Implied Warranty of
Merchantability—Essential Factual Elements, and CACI No. 1242, Affırmative
Defense—Exclusion of Implied Warranties.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under various circumstances, the plaintiff must also prove that he or she made a
reasonable attempt to notify the defendant of the defect. Thus, where appropriate,
the following question should be added prior to the question regarding the
plaintiff’s harm: “Did [name of plaintiff] take reasonable steps to notify [name of
807
defendant] within a reasonable time that the [product] [was not/did not perform] as
requested?”
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Question 2 should be modified if the defendant held himself or herself out as
having special knowledge or skill regarding the goods. Question 3 should be
modified if a different ground of liability is asserted under Commercial Code
section 2314(2). Question 6 should be modified if the defendant is asserting other
grounds under Commercial Code section 2316(3). This form should also be
modified if notification is an issue.
Do not include question 3 if the affirmative defense is not at issue.
808
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1232, Implied Warranty of Fitness for a
810
811
813
• “The crimes of assault and battery are intentional torts. In the perpetration of
such crimes negligence is not involved. As between the guilty aggressor and the
person attacked the former may not shield himself behind the charge that his
victim may have been guilty of contributory negligence, for such a plea is
unavailable to him.” (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385 [59
Cal.Rptr. 382].)
• “ ‘It has long been established, both in tort and criminal law, that “the least
touching” may constitute battery. In other words, force against the person is
enough; it need not be violent or severe, it need not cause bodily harm or even
pain, and it need not leave any mark.’ ” (People v. Mansfield (1988) 200
Cal.App.3d 82, 88 [245 Cal.Rptr. 800], internal citations omitted.)
• “[T]he tort of battery generally is not limited to direct body-to-body contact. In
fact, the commentary to the Restatement Second of Torts clearly states that the
‘[m]eaning of “contact with another’s person” ’ . . . does not require that one
‘should bring any part of his own body in contact with another’s person. . . .
[One] is liable [for battery] in this Section if [one] throws a substance, such as
water, upon the other . . . .’ ” (Mount Vernon Fire Ins. Co. v. Busby (2013) 219
Cal.App.4th 876, 881 [162 Cal.Rptr.3d 211].)
• “The element of lack of consent to the particular contact is an essential element
of battery.” (Rains, supra, 150 Cal.App.3d at p. 938.)
• “As a general rule, one who consents to a touching cannot recover in an action
for battery. . . . However, it is well-recognized a person may place conditions
on the consent. If the actor exceeds the terms or conditions of the consent, the
consent does not protect the actor from liability for the excessive act.” (Ashcraft
v. King (1991) 228 Cal.App.3d 604, 609–610 [278 Cal.Rptr. 900].)
• “In an action for civil battery the element of intent is satisfied if the evidence
shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.”
(Ashcraft, supra, 228 Cal.App.3d at p. 613, internal citation omitted.)
• “ ‘The usages of decent society determine what is offensive.’ ” (Barouh, supra,
26 Cal.App.4th at p. 46, fn. 5, internal citation omitted.)
• “Even though pushing a door cannot be deemed a harmful injury, the pushing
of a door which was touching the prosecutrix could be deemed an offensive
touching and a battery is defined as a harmful or offensive touching.” (People v.
Puckett (1975) 44 Cal.App.3d 607, 614–615 [118 Cal.Rptr. 884].)
• “ ‘If defendant unlawfully aims at one person and hits another he is guilty of
assault and battery on the party he hit, the injury being the direct, natural and
probable consequence of the wrongful act.’ ” (Singer v. Marx (1956) 144
Cal.App.2d 637, 642 [301 P.2d 440], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 381–416
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-I, Assault And
Battery, ¶ 5:656 et seq. (The Rutter Group)
815
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.13
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.21 (Matthew
Bender)
1 California Civil Practice: Torts §§ 12:7–12:9 (Thomson Reuters)
816
one person to inflict immediate injury on the person of another then present.’ ”
(Plotnik v. Meihaus (2012) 208 Cal. App. 4th 1590, 1603–1604 [146
Cal.Rptr.3d 585].)
• “A civil action for assault is based upon an invasion of the right of a person to
live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. of
California (1944) 63 Cal.App.2d 1, 6–7 [146 P.2d 57], internal citation
omitted.)
• “The tort of assault is complete when the anticipation of harm occurs.”
(Kiseskey v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d
222, 232 [192 Cal.Rptr 492].)
“Furthermore, . . . ‘while apprehension of that contact is the basis of assault
[citation,] [m]ere words, however threatening, will not amount to an assault.
[Citations.]’ ” (Plotnik, supra, 208 Cal.App.4th at p. 1604.)
• Restatement Second of Torts, section 21 provides:
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent
apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other for an
apprehension caused thereby although the act involves an
unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 381–416
Chin et al., California Practice Guide: Employment Litigation, Ch.5-I, Assault And
Battery, ¶ 5:656 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[4] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.15
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew
Bender)
1 California Civil Practice: Torts §§ 12:3–12:6 (Thomson Reuters West)
818
819
820
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 386–416
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.20 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.57,
58.91 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.24 (Matthew
Bender)
1 California Civil Practice: Torts (Thomson West) §§ 12:9, 12:18–12:19
821
823
identified and that the federal court’s instructions in this case set forth. (Judicial
Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in
arguing that the federal and state standards of reasonableness differ in that the
former involves a fact finder’s balancing of competing interests.” (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal. Rptr. 3d 1, 207 P.3d 506],
internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 424
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.22,
58.61, 58.92 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 12:22 (Thomson Reuters)
826
828
829
830
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the bracketed words in question 3 and bracketed question 4 only if the
offensive nature of the conduct is at issue. In most cases, it will be clear whether
the alleged conduct was offensive. The offensive nature of the conduct will most
likely not be at issue if the conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
832
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
833
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, April 2007, December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 1300, Battery—Essential Factual
Elements, and CACI No. 1304, Self-Defense/Defense of Others.
835
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the bracketed words in question 3 and bracketed question 4 only if the
offensive nature of the conduct is at issue. In most cases, it will be clear whether
the alleged conduct was offensive. The offensive nature of the conduct will most
likely not be at issue if the conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
836
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised October 2004, June 2005, April 2007, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1301, Assault—Essential Factual
Elements.
838
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
As appropriate to the facts of the case, read one of the bracketed alternative sets of
questions 1 and 2.
Give the bracketed words in question 2 only if the offensive nature of the conduct
is at issue. In most cases, it will be clear whether the alleged conduct was
offensive. The offensive nature of the conduct will most likely not be at issue if the
conduct was clearly harmful.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
839
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1305, Battery by Peace Offıcer.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
841
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1304–VF-1399. Reserved for Future Use
842
843
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 426–429
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§§ 42.01, 42.07, 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.17 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.40 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters West)
846
Perma Trans Products, Inc. (1980) 103 Cal.App.3d 937, 941 [163 Cal.Rptr.
335], internal citation omitted.) Where a defendant “knowingly [gives] the
police false or materially incomplete information, of a character that could be
expected to stimulate an arrest” . . . “such conduct can be a basis for imposing
liability for false imprisonment.” (Id. at p. 942.)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest.” (Cervantez v. J.C. Penney Co.
(1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975].)
• Penal Code section 830 and following provisions define who are peace officers
in California.
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 434–440
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.23 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
1 California Civil Practice: Torts § 13:20 (Thomson Reuters)
848
[Name of defendant] claims the arrest was not wrongful because [he/she]
had the authority to arrest [name of plaintiff] without a warrant.
[If [name of defendant] proves that [insert facts that, if proved, would
constitute reasonable cause to believe that plaintiff had committed a crime
in defendant’s presence], then [name of defendant] had the authority to
arrest [name of plaintiff] without a warrant.]
[or]
[If [name of defendant] proves that [insert facts that, if proved, would
establish that defendant had reasonable cause to believe that plaintiff had
committed a felony, whether or not a felony had actually been committed],
then [name of defendant] had the authority to arrest [name of plaintiff]
without a warrant.]
(Allen v. McCoy (1933) 135 Cal.App. 500, 507–508 [27 P.2d 423].)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest. Considerations of both a practical
and policy nature underlie this rule. The existence of justification is a matter
which ordinarily lies peculiarly within the knowledge of the defendant. The
plaintiff would encounter almost insurmountable practical problems in
attempting to prove the negative proposition of the nonexistence of any
justification. This rule also serves to assure that official intermeddling is
justified, for it is a serious matter to accuse someone of committing a crime and
to arrest him without the protection of the warrant process.” (Cervantez v. J. C.
Penney Co. (1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975],
footnote and internal citations omitted.)
• “We look to whether facts known to the arresting officer ‘at the moment the
arrest was made’ ‘ “would persuade someone of ‘reasonable caution’ that the
person to be arrested has committed a crime.” ’ ” (Cornell v. City & County of
San Francisco (2017) 17 Cal.App.5th 766, 779 [225 Cal.Rptr.3d 356], internal
citations omitted.)
• “If the facts that gave rise to the arrest are undisputed, the issue of probable
cause is a question of law for the trial court. When, however, the facts that gave
rise to the arrest are controverted, the trial court must instruct the jury as to
what facts, if established, would constitute probable cause. ‘The trier of fact’s
function in false arrest cases is to resolve conflicts in the evidence. Accordingly,
where the evidence is conflicting with respect to probable cause, “ ‘it [is] the
duty of the court to instruct the jury as to what facts, if established, would
constitute probable cause.’ ” . . . The jury then decides whether the evidence
supports the necessary factual findings.’ ” (Levin v. United Air Lines, Inc.
(2008) 158 Cal.App.4th 1002, 1018–1019 [70 Cal.Rptr.3d 535], internal
citations omitted.)
• “The legal standard we apply to assess probable cause is an objective one in
which the subjective motivations of the arresting officers have no role. But it is
an overstatement to say that what is in the mind of an arresting officer is
wholly irrelevant, for the objective test of reasonableness is simply a measure
by which we assess whether the circumstances as subjectively perceived by the
officer provide a reasonable basis for the seizure.” (Cornell, supra, 17
Cal.App.5th at p. 779, internal citations omitted.)
• “ ‘Presence’ is not mere physical proximity but is determined by whether the
offense is apparent to the officer’s senses.” (People v. Sjosten (1968) 262
Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 436, 438
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
850
851
(1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975].)
• “ ‘[T]he delegation of the physical act of arrest need not be express, but may be
implied from the citizen’s act of summoning an officer, reporting the offense,
and pointing out the suspect.’ ” (Johanson v. Dept. of Motor Vehicles (1995) 36
Cal.App.4th 1209, 1216 [43 Cal.Rptr.2d 42], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 438, 439
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.22 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:8–13:10 (Thomson Reuters)
853
[Name of defendant] claims the citizen’s arrest was not wrongful because
[he/she] had the authority to cause [name of plaintiff] to be arrested
without a warrant.
[If [name of defendant] proves that [name of plaintiff] committed or
attempted to commit a crime in [name of defendant]’s presence, then the
arrest was lawful.]
[or]
[If [name of defendant] proves that a felony was committed and that
[insert facts, that if proved, would establish that defendant had reasonable
cause to believe that plaintiff had committed a felony], then the arrest was
lawful.]
855
857
[Name of defendant] claims that the arrest was not wrongful. To succeed,
[name of defendant] must prove all of the following:
1. That the arrest warrant would have appeared valid to a
reasonably intelligent and informed person;
2. That [name of defendant] believed the warrant was valid; and
3. That [name of defendant] had a reasonable belief that [name of
plaintiff] was the person referred to in the warrant.
If [name of defendant] has proven all of the above, then the arrest was
not wrongful.
859
but one way of committing a false imprisonment, and they are distinguishable
only in terminology.” (Collins v. City and County of San Francisco (1975) 50
Cal.App.3d 671, 673 [123 Cal.Rptr. 525].)
• “In determining which delays are necessary, this court has rejected arguments
that the delay was ‘not unusual’ or made ‘the work of the police and the district
attorney easier.’ As the Court of Appeal recently observed, ‘[t]here is no
authority to delay for the purpose of investigating the case. Subject to obvious
health considerations the only permissible delay between the time of arrest and
bringing the accused before a magistrate is the time necessary: to complete the
arrest; to book the accused; to transport the accused to court; or the district
attorney to evaluate the evidence for the limited purpose of determining what
charge, if any, is to be filed; and to complete the necessary clerical and
administrative tasks to prepare a formal pleading.’ ” (Youngblood v. Gates
(1988) 200 Cal.App.3d 1302, 1319 [246 Cal.Rptr. 775], internal citations
omitted.)
• “Although both false imprisonment and malicious prosecution may cause a
person to be restrained or confined, under Asgari (Asgari v. City of Los Angeles
(1997) 15 Cal.4th 744 [63 Cal.Rptr.2d 842, 937 P.2d 273]) only damages
attributable to injuries arising from false arrest and false imprisonment are
compensable in an action under state law against a public entity and its
employees. False imprisonment ends at the point malicious prosecution begins
which, under Asgari, is the point at which the person is arraigned.” (County of
Los Angeles v. Superior Court (2000) 78 Cal.App.4th 212, 220–221 [92
Cal.Rptr.2d 668].)
• “[W]here the arrest is lawful, subsequent unreasonable delay in taking the
person before a magistrate will not affect the legality of the arrest, although it
will subject the offending person to liability for so much of the imprisonment as
occurs after the period of necessary or reasonable delay.” (Dragna v. White
(1955) 45 Cal.2d 469, 473 [289 P.2d 428].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 445
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.26 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.24 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.110 et
seq. (Matthew Bender)
1 California Civil Practice: Torts §§ 13:31–13:34 (Thomson Reuters)
861
[Name of defendant] claims that the detention was not wrongful because
[he/she] had a right to detain [name of plaintiff] for questioning or other
limited investigation.
If [name of defendant] has proven that [insert facts, that if established,
would constitute a reasonable suspicion], then [name of defendant] had a
right to detain [name of plaintiff] for questioning or other limited
investigation.
863
[Name of defendant] claims that the detention was not wrongful because
[he/she] had a right to detain [name of plaintiff]. To succeed, [name of
defendant] must prove all of the following:
1. That [name of defendant] was the
[owner/employer/employee/agent] of a business;
2. That [name of defendant] had reasonable grounds to believe that
[name of plaintiff] had wrongfully [taken or damaged
merchandise or other personal property] [secured services] from
the business. If you find that [insert facts, that if established, would
constitute reasonable grounds], then [name of defendant] had
reasonable grounds to detain [name of plaintiff];
3. That [name of defendant] detained [name of plaintiff] for a
reasonable amount of time; and
4. That [name of defendant] detained [name of plaintiff] in a
reasonable manner.
• Penal Code section 490.5(f) provides, in part: “A merchant may detain a person
for a reasonable time for the purpose of conducting an investigation in a
reasonable manner whenever the merchant has probable cause to believe the
person to be detained is attempting to unlawfully take or has unlawfully taken
merchandise from the merchant’s premises.”
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 431, 432
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.20 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment
(Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment (Matthew
Bender)
1 California Civil Practice: Torts (Thomson West) § 13:11
1410–1499. Reserved for Future Use
865
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
867
findings that are required in order to calculate the amount of prejudgment interest.
868
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1400, No Arrest Involved—Essential
Factual Elements, and CACI No. 1409, Common Law Right to Detain for
Investigation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
870
871
872
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 2 to direct the jury to skip question 3 and answer
question 4 if they find no harm. Then add a new question 4: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 3 that the jury should not answer question 4. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
873
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1401, False Arrest Without Warrant by
Peace Offıcer—Essential Factual Elements, and CACI No. 1402, False Arrest
Without Warrant—Affırmative Defense—Peace Offıcer—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
875
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
876
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1403, False Arrest Without Warrant by
Private Citizen—Essential Factual Elements, and CACI No. 1404, False Arrest
Without Warrant—Affırmative Defense—Private Citizen—Probable Cause to Arrest.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
878
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
879
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With
Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 3 to direct the jury to skip question 4 and answer
question 5 if they find no harm. Then add a new question 5: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 4 that the jury should not answer question 5. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
881
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
882
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1405, False Arrest With
Warrant—Essential Factual Elements, and CACI No. 1406, False Arrest With
Warrant—Peace Offıcer—Affırmative Defense—“Good-Faith” Exception.
The special verdict forms in this section are intended only as models. They may
884
885
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1407, Unnecessary Delay in Processing/
Releasing—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the jury returns a verdict of no harm, the plaintiff is still entitled to an award of
nominal damages, such as one dollar. If nominal damages are being sought, modify
the directions after question 4 to direct the jury to skip question 5 and answer
question 6 if they find no harm. Then add a new question 6: “What amount of
nominal damages do you award [name of plaintiff]?” If this is done, add a direction
after question 5 that the jury should not answer question 6. Please note that the
committee has found no cases requiring the jury to determine the amount of
nominal damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
887
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1408–VF-1499. Reserved for Future Use
888
889
New September 2003; Revised April 2008, October 2008, June 2015, May 2018
Directions for Use
Give this instruction in a malicious prosecution case based on an underlying
890
that does not result in formal charges (at least when the arrest is not pursuant to
a warrant).” (Van Audenhove, supra, 11 Cal.App.5th at p. 917 [rejecting Rest.2d
Torts, § 654. subd. (2)(c)].)
• “Cases dealing with actions for malicious prosecution against private persons
require that the defendant has at least sought out the police or prosecutorial
authorities and falsely reported facts to them indicating that plaintiff has
committed a crime.” (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710,
720 [117 Cal.Rptr. 241, 527 P.2d 865], internal citations omitted.)
• “[T]he effect of the approved instruction [in Dreux v. Domec (1861) 18 Cal. 83]
was to impose liability upon one who had not taken part until after the
commencement of the prosecution.” (Lujan v. Gordon (1977) 70 Cal.App.3d
260, 263 [138 Cal.Rptr. 654].)
• “When, as here, the claim of malicious prosecution is based upon initiation of a
criminal prosecution, the question of probable cause is whether it was
objectively reasonable for the defendant . . . to suspect the plaintiff . . . had
committed a crime.” (Greene v. Bank of America (2013) 216 Cal.App.4th 454,
465 [156 Cal.Rptr.3d 901].)
• “When there is a dispute as to the state of the defendant’s knowledge and the
existence of probable cause turns on resolution of that dispute, . . . the jury
must resolve the threshold question of the defendant’s factual knowledge or
belief. Thus, when . . . there is evidence that the defendant may have known
that the factual allegations on which his action depended were untrue, the jury
must determine what facts the defendant knew before the trial court can
determine the legal question whether such facts constituted probable cause to
institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p.
881, internal citations omitted.)
• “Admittedly, the fact of the grand jury indictment gives rise to a prima facie
case of probable cause, which the malicious prosecution plaintiff must rebut.
However, as respondents’ own authorities admit, that rebuttal may be by proof
that the indictment was based on false or fraudulent testimony.” (Williams v.
Hartford Ins. Co. (1983) 147 Cal.App.3d 893, 900 [195 Cal.Rptr. 448].)
• “Acquittal of the criminal charge, in the criminal action, did not create a
conflict of evidence on the issue of probable cause. [Citations.]” (Verdier v.
Verdier (1957) 152 Cal.App.2d 348, 352, fn. 3 [313 P.2d 123].)
• “ ‘[T]he plaintiff in a malicious prosecution action must plead and prove that
the prior judicial proceeding of which he complains terminated in his favor.’
Termination of the prior proceeding is not necessarily favorable simply because
the party prevailed in the prior proceeding; the termination must relate to the
merits of the action by reflecting either on the innocence of or lack of
responsibility for the misconduct alleged against him.” (Sagonowsky, supra, 64
Cal.App.4th at p. 128, internal citations omitted.)
• “ ‘The theory underlying the requirement of favorable termination is that it
892
tends to indicate the innocence of the accused, and coupled with the other
elements of lack of probable cause and malice, establishes the tort, that is, the
malicious and unfounded charge of crime against an innocent person.’ ” (Cote v.
Henderson (1990) 218 Cal.App.3d 796, 804 [267 Cal.Rptr. 274], quoting Jaffe
v. Stone (1941) 18 Cal.2d 146, 150 [114 P.2d 335].)
• “Where a proceeding is terminated other than on the merits, the reasons
underlying the termination must be examined to see if it reflects the opinion of
the court or the prosecuting party that the action would not succeed. If a
conflict arises as to the circumstances explaining a failure to prosecute an action
further, the determination of the reasons underlying the dismissal is a question
of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations omitted.)
• “Generally, the requirements of the doctrine of collateral estoppel ‘will be met
when courts are asked to give preclusive effect to preliminary hearing probable
cause findings in subsequent civil actions for false arrest and malicious
prosecution. [Citation.]’ ‘A determination of probable cause at a preliminary
hearing may preclude a suit for false arrest or for malicious prosecution’].)
‘One notable exception to this rule would be in a situation where the plaintiff
alleges that the arresting officer lied or fabricated evidence presented at the
preliminary hearing. [Citation.] When the officer misrepresents the nature of the
evidence supporting probable cause and that issue is not raised at the
preliminary hearing, a finding of probable cause at the preliminary hearing
would not preclude relitigation of the issue of integrity of the evidence.’
Defendants argue, and we agree, that the stated exception itself contains an
exception—i.e., if the plaintiff alleges that the arresting officer lied or fabricated
evidence at the preliminary hearing, plaintiff challenges that evidence at the
preliminary hearing as being false, and the magistrate decides the credibility
issue in the arresting officer’s favor, then collateral estoppel still may preclude
relitigation of the issue in a subsequent civil proceeding involving probable
cause.” (Greene v. Bank of America (2015) 236 Cal.App.4th 922, 933 [186
Cal.Rptr.3d 887], internal citations omitted.)
• “The plea of nolo contendere is considered the same as a plea of guilty. Upon a
plea of nolo contendere the court shall find the defendant guilty, and its legal
effect is the same as a plea of guilty for all purposes. It negates the element of
a favorable termination, which is a prerequisite to stating a cause of action for
malicious prosecution.” (Cote, supra, 218 Cal.App.3d at p. 803, internal citation
omitted.)
• “ ‘Should a conflict arise as to the circumstances explaining the failure to
prosecute, the trier of fact must exercise its traditional role in deciding the
conflict.’ ” (Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 185 [156
Cal.Rptr. 745], disapproved on other grounds in Sheldon Appel Co., supra, 47
Cal.3d at p. 882, original italics, internal citations omitted.)
• “ ‘For purposes of a malicious prosecution claim, malice “is not limited to
actual hostility or ill will toward the plaintiff. . . .” [Citation.]’ ‘[I]f the
defendant had no substantial grounds for believing in the plaintiff’s guilt, but,
893
894
is to be decided by the court as a matter of law. However, the jury may be required
to find some preliminary facts before the court can make its legal determination,
including facts regarding what the defendant knew or did not know at the time.
(See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254
Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part
of the instruction that refers to element 3.
Favorable termination is handled in much the same way. If a proceeding is
terminated other than on the merits, there may be disputed facts that the jury must
find in order to determine whether there has been a favorable termination. (See
Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so,
include element 2 and also the bracketed part of the instruction that refers to
element 2. Once these facts are determined, the jury does not then make a second
determination as to whether there has been a favorable termination. The matter is
determined by the court based on the resolution of the disputed facts. (See Sierra
Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[element of favorable termination is for court to decide].)
Either or both of the elements of probable cause and favorable termination should
be omitted if there are no disputed facts regarding that element for the jury to
decide.
Element 4 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
• “Although the tort is usually called ‘malicious prosecution,’ the word
‘prosecution’ is not a particularly apt description of the underlying civil action.
The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to
the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486,
internal citations omitted.)
• “To establish a cause of action for the malicious prosecution of a civil
proceeding, a plaintiff must plead and prove that the prior action (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination in his, plaintiff’s, favor; (2) was brought without probable cause;
and (3) was initiated with malice.” (Bertero v. National General Corp. (1974)
13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
• “The remedy of a malicious prosecution action lies to recompense the defendant
who has suffered out of pocket loss in the form of attorney fees and costs, as
well as emotional distress and injury to reputation because of groundless
allegations made in pleadings which are public records.” (Sagonowsky v. More
(1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations
omitted.)
• “The malicious commencement of a civil proceeding is actionable because it
harms the individual against whom the claim is made, and also because it
threatens the efficient administration of justice. The individual is harmed
896
• “[I]t is not enough that the present plaintiff (former defendant) prevailed in the
action. The termination must ‘ “reflect on the merits,” ’ and be such that it
‘tended to indicate [the former defendant’s] innocence of or lack of
responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009)
176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
• “ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction,
laches, the statute of limitations or prematurity, does not constitute a favorable
termination because it does not reflect on the substantive merits of the
underlying claim. . . .’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
• “[Code of Civil Procedure] Section 581c, subdivision (c) provides that where a
motion for judgment of nonsuit is granted, ‘unless the court in its order for
judgment otherwise specifies, the judgment of nonsuit operates as an
adjudication upon the merits.’ . . . [¶] We acknowledge that not every judgment
of nonsuit should be grounds for a subsequent malicious prosecution action.
Some will be purely technical or procedural and will not reflect the merits of
the action. In such cases, trial courts should exercise their discretion to specify
that the judgment of nonsuit shall not operate as an adjudication upon the
merits.” (Nunez, supra, 241 Cal.App.4th at p. 874.)
• “ ‘ “[T]hat a malicious prosecution suit may be maintained where only one of
several claims in the prior action lacked probable cause [citation] does not alter
the rule there must first be a favorable termination of the entire action.” ’ Thus,
if the defendant in the underlying action prevails on all of the plaintiff’s claims,
he or she may successfully sue for malicious prosecution if any one of those
claims was subjectively malicious and objectively unreasonable. But if the
underlying plaintiff succeeds on any of his or her claims, the favorable
termination requirement is unsatisfied and the malicious prosecution action
cannot be maintained.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 64 [228
Cal.Rptr.3d 605], original italics, internal citation omitted.)
• “ ‘ “A voluntary dismissal may be an implicit concession that the dismissing
party cannot maintain the action and may constitute a decision on the merits.
[Citations.] ‘It is not enough, however, merely to show that the proceeding was
dismissed.’ [Citation.] The reasons for the dismissal of the action must be
examined to determine whether the termination reflected on the merits.”
[Citations.]’ Whether that dismissal is a favorable termination for purposes of a
malicious prosecution claim depends on whether the dismissal of the [earlier]
Lawsuit is considered to be on the merits reflecting [plaintiff’s ‘innocence’ of
the misconduct alleged.” (JSJ Limited Partnership v. Mehrban (2012) 205
Cal.App.4th 1512, 1524 [141 Cal.Rptr.3d 338], internal citations omitted.)
• “If a conflict arises as to the circumstances explaining a failure to prosecute an
action further, the determination of the reasons underlying the dismissal is a
question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations
omitted.)
• “[W]hen a dismissal results from negotiation, settlement, or consent, a favorable
898
902
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)
906
New September 2003; Renumbered from CACI No. 1506 June 2013; Revised May
2018
Directions for Use
Give this instruction if there is an issue of fact as to whether the proceeding giving
rise to the alleged malicious prosecution claim was initiated as a governmental
action. Government Code section 821.6 provides immunity from liability for
malicious prosecution for a public employee who is acting within the scope of
employment, even if the employee acts maliciously and without probable cause. If
the employee is immune, then there can be no vicarious liability on the entity.
(Gov. Code, § 815.2.) This immunity is not unqualified, however; it applies only if
the employee was acting within the scope of employment. (Tur v. City of Los
Angeles (1996) 51 Cal.App.4th 897, 904 [59 Cal.Rptr.2d 470].)
For an instruction on scope of employment, see CACI No. 3720, Scope of
Employment, in the Vicarious Responsibility series.
Sources and Authority
• Public Entity Vicarious Liability for Acts of Employee. Government Code
section 815.2.
• Public Employee Immunity. Government Code section 821.6.
• “The defendants did not enjoy an unqualified immunity from suit. Their
immunity would have depended on their proving by a preponderance of the
evidence [that] they were acting within the scope of their employment in doing
the acts alleged to constitute malicious prosecution.” (Tur, supra, 51
Cal.App.4th at p. 904 [failure to instruct jury under section 821.6 was
prejudicial error].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 434 et seq.
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
907
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.31 (Matthew Bender)
908
910
New September 2003; Renumbered from CACI No. 1505 June 2013
Sources and Authority
• “ ‘Good faith reliance on the advice of counsel, after truthful disclosure of all
the relevant facts, is a complete defense to a malicious prosecution claim.’ The
burden of proving the advice of counsel defense is on [defendant].” (Nunez v.
Pennisi (2015) 241 Cal.App.4th 861, 876–877 [193 Cal.Rptr.3d 912], internal
citation omitted.)
• “[I]f the initiator acts in bad faith or withholds from counsel facts he knew or
should have known would defeat a cause of action otherwise appearing from
the information supplied, [the] defense fails.” (Bertero v. National General
Corp. (1974) 13 Cal.3d 43, 53–54 [118 Cal.Rptr. 184, 529 P.2d 608].)
• “[T]he defense that a criminal prosecution was commenced upon the advice of
counsel is unavailing in an action for malicious prosecution if it appears . . .
that the defendant did not believe that the accused was guilty of the crime
charged.” (Singleton v. Singleton (1945) 68 Cal.App.2d 681, 695 [157 P.2d
886].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 509
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.07 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.37, 147.46 (Matthew Bender)
911
If the lawyer discovers the client’s statements are false, the lawyer cannot rely
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223, internal citation omitted.)
• “[W]hen evaluating a client’s case and making an initial assessment of
tenability, the attorney is entitled to rely on information provided by the client.
An exception to this rule exists where the attorney is on notice of specific
factual mistakes in the client’s version of events. Absent such notice, an
attorney ‘may, without being guilty of malicious prosecution, vigorously pursue
litigation in which he is unsure of whether his client or the client’s adversary is
truthful, so long as that issue is genuinely in doubt.’ A respected authority has
summed up the issue as follows: ‘Usually, the client imparts information upon
which the attorney relies in determining whether probable cause exists for
initiating a proceeding. The rule is that the attorney may rely on those
statements as a basis for exercising judgment and providing advice, unless the
client’s representations are known to be false.’ ” (Morrison v. Rudolph (2002)
103 Cal.App.4th 506, 512–513 [126 Cal.Rprt.2d 747], disapproved on other
grounds in Zamos v. Stroud (2004) 32 Cal.4th 958, 972[12 Cal.Rptr.3d 54, 87
P.3d 802], internal citations omitted.)
• “The trial court found the undisputed facts establish that the lawyers had
probable cause to assert the fraudulent inducement claim. We agree. It is
undisputed that the allegations in the complaint accurately reflected the facts as
given to the lawyers by [client] and that she never told them those facts were
incorrect. The information provided to the lawyers, if true, was sufficient to
state a cause of action . . . .” (Swat-Fame, Inc. v. Goldstein (2002) 101
Cal.App.4th 613, 625 [124 Cal.Rptr.2d 556], disapproved on other grounds in
Zamos, supra, 32 Cal.4th at p. 972.)
• “Normally, the adequacy of a prefiling investigation is not relevant to the
determination of probable cause.” (Swat-Fame, Inc., supra, 101 Cal.App.4th at
p. 627, disapproved on other grounds in Zamos, supra, 32 Cal.4th at p. 972.)
• “If the lawyer discovers the client’s statements are false, the lawyer cannot rely
on such statements in prosecuting an action.” (Daniels, supra, 182 Cal.App.4th
at p. 223.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 471 et seq., 510
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.05 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.27 et seq. (Matthew Bender)
1512–1519. Reserved for Future Use
913
the first place). Hence, abuse of process claims typically arise for improper or
excessive attachments [citation] or improper use of discovery [citation].” (S.A.,
supra, 229 Cal.App.4th at pp. 41–42, original italics.)
• “[W]hile a defendant’s act of improperly instituting or maintaining an action
may, in an appropriate case, give rise to a cause of action for malicious
prosecution, the mere filing or maintenance of a lawsuit—even for an improper
purpose—is not a proper basis for an abuse of process action.” (JSJ Limited
Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 [141 Cal.Rptr.3d
338].)
• “Some definite act or threat not authorized by the process or aimed at an
objective not legitimate in the use of the process is required. And, generally, an
action lies only where the process is used to obtain an unjustifiable collateral
advantage. For this reason, mere vexation [and] harassment are not recognized
as objectives sufficient to give rise to the tort.” (Younger v. Solomon (1974) 38
Cal.App.3d 289, 297 [113 Cal.Rptr. 113], internal citations omitted.)
• “Process is action taken pursuant to judicial authority. It is not action taken
without reference to the power of the court.” (Adams v. Superior Court (1992) 2
Cal.App.4th 521, 530 [3 Cal.Rptr.2d 49].)
• “This broad reach of the ‘abuse of process’ tort can be explained historically,
since the tort evolved as a ‘catch-all’ category to cover improper uses of the
judicial machinery that did not fit within the earlier established, but narrowly
circumscribed, action of malicious prosecution.” (Younger, supra, 38 Cal.App.3d
at p. 296, internal citations omitted.)
• “ ‘The improper purpose usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such as the
surrender of property or the payment of money, by the use of the process as a
threat or a club.’ ” (Spellens v. Spellens (1957) 49 Cal.2d 210, 232–233 [317
P.2d 613], internal citation omitted.)
• “[A]n improper purpose may consist in achievement of a benefit totally
extraneous to or of a result not within its legitimate scope. Mere ill will against
the adverse party in the proceedings does not constitute an ulterior or improper
motive.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 876 [168
Cal.Rptr. 361], internal citations omitted.)
• “Merely obtaining or seeking process is not enough; there must be subsequent
abuse, by a misuse of the judicial process for a purpose other than that which it
was intended to serve. The gist of the tort is the improper use of the process
after it is issued.” (Adams, supra, 2 Cal.App.4th at pp. 530–531, internal
citations omitted.)
• “ ‘ “Some definite act or threat not authorized by the process, or aimed at an
objective not legitimate in the use of the process, is required; and there is no
liability where the defendant has done nothing more than carry out the process
to its authorized conclusion, even though with bad intentions.” ’ ” (Clark
915
Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 524 [154 Cal.Rptr. 874],
internal citations omitted.)
• “[I]t is consistent with the purpose of section 47, subdivision (2) to exempt
malicious prosecution while still applying the privilege to abuse of process
causes of action.” (Abraham v. Lancaster Community Hospital (1990) 217
Cal.App.3d 796, 824 [266 Cal.Rptr. 360].)
• “[T]he scope of ‘publication or broadcast’ includes noncommunicative conduct
like the filing of a motion for a writ of sale, the filing of assessment liens, or
the filing of a mechanic’s lien. The privilege also applies to conduct or
publications occurring outside the courtroom, to conduct or publications which
are legally deficient for one reason or another, and even to malicious or
fraudulent conduct or publications.” (O’Keefe v. Kompa (2000) 84 Cal.App.4th
130, 134 [100 Cal.Rptr.2d 602], internal citations omitted.)
• “The use of the machinery of the legal system for an ulterior motive is a classic
indicia of the tort of abuse of process. However, the tort requires abuse of legal
process, not just filing suit.” (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359
[82 Cal.Rptr.2d 281], internal citations omitted.)
• “We have located no authority extending the tort of abuse of process to
administrative proceedings. Application of the tort to administrative proceedings
would not serve the purpose of the tort, which is to preserve the integrity of the
court.” (Stolz v. Wong Communications Ltd. Partnership (1994) 25 Cal.App.4th
1811, 1822–1823 [31 Cal.Rptr.2d 229], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 517–528
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, §§ 43.20–43.25 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.51 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.70 et seq. (Matthew Bender)
1521–1529. Reserved for Future Use
916
[Name of plaintiff] claims damages for attorney fees and costs reasonably
and necessarily incurred in defending the underlying lawsuit.
If you find that [name of plaintiff] is entitled to recover damages from
[name of defendant], [name of plaintiff] is only entitled to attorney fees
and costs reasonably and necessarily incurred in defending those claims
that were brought without reasonable grounds. Those claims are
[specify]. [Name of plaintiff] is not entitled to recover attorney fees and
costs incurred in defending against the following claims: [specify].
[Name of defendant] must prove the amount of attorney fees and costs
that should be apportioned to those claims for which recovery is not
allowed.
(1974) 13 Cal.3d 43, 60 [118 Cal.Rptr. 184, 529 P.2d 608], internal citation
omitted.)
• “Defendants also charge that under the Bertero rule the apportionment of
damages between the theories of liability that are and are not supported by
probable cause is difficult and ‘highly speculative.’ There is no showing,
however, that juries cannot perform that task fairly and consistently if they are
properly instructed—they draw more subtle distinctions every day. Moreover,
any difficulty in this regard is chargeable to the tortfeasor . . . .” (Crowley v.
Katleman (1994) 8 Cal.4th 666, 690 [34 Cal.Rptr.2d 386, 881 P.2d 1083].)
• “It was the defendants’ burden, however, not the [plaintiffs]’, to prove such an
allocation, just as it generally is the burden of the defendant in a malicious
prosecution action to prove certain attorney fees incurred in the underlying
action are not recoverable because they are attributable to claims that had been
properly pursued.” (Jackson, supra, 179 Cal.App.4th at p. 96.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 471 et seq.
Wegner, et al., California Practice Guide: Civil Trials& Evidence, Ch. 17-D, Costs,
¶ 17:91 et seq. (The Rutter Group)
Wegner, et al., California Practice Guide: Civil Trials & Evidence, Ch. 17-E,
Attorney Fees As Costs, ¶ 17:150 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, § 43.08 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.18 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.45 (Matthew Bender)
1531–1599. Reserved for Future Use
918
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016, May 2018
Directions for Use
This verdict form is based on CACI No. 1500, Former Criminal Proceeding. This
form can be adapted to include the affirmative defense of reliance on counsel. See
VF-1502 for a form that includes this affirmative defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
In question 1, include the bracketed reference to prosecution if the arrest was
without a warrant.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1500, Former Criminal
Proceeding, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
920
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
921
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, June 2011,
December 2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings.
See VF-1502 for a form that includes the affirmative defense of reliance on
counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3).
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
923
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1501, Wrongful Use of Civil Proceedings,
and CACI No. 1510, Affırmative Defense—Reliance on Counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1501, elements 2 and 3.)
If specificity is not required, users do not have to itemize all the damages listed in
925
926
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, December
2016
Directions for Use
This verdict form is based on CACI No. 1502, Wrongful Use of Administrative
Proceedings. See VF-1502 for a form that includes the affirmative defense of
reliance on counsel.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are disputed issues of fact on the elements of probable cause or favorable
termination that the jury must resolve, include additional questions or provide
special interrogatories on these elements. (See CACI No. 1502, elements 3 and 4.)
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
928
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
929
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1520, Abuse of Process—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1505–VF-1599. Reserved for Future Use
931
933
been extreme and outrageous to result in liability. Otherwise stated, the court
determines whether severe emotional distress can be found; the jury determines
whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1614 [146 Cal.Rptr.3d 585].)
• “ ‘[I]t is generally held that there can be no recovery for mere profanity,
obscenity, or abuse, without circumstances of aggravation, or for insults,
indignities or threats which are considered to amount to nothing more than mere
annoyances.’ ” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128
[257 Cal.Rptr. 665], internal citations omitted.)
• “It is not enough that the conduct be intentional and outrageous. It must be
conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom
the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868,
903–904 [2 Cal.Rptr.2d 79, 820 P.2d 181].)
• “Severe emotional distress [is] emotional distress of such substantial quantity or
enduring quality that no reasonable man in a civilized society should be
expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10
Cal.App.3d 376, 397 [89 Cal.Rptr. 78].)
• “ ‘The law limits claims of intentional infliction of emotional distress to
egregious conduct toward plaintiff proximately caused by defendant.’ The only
exception to this rule is that recognized when the defendant is aware, but acts
with reckless disregard of, the plaintiff and the probability that his or her
conduct will cause severe emotional distress to that plaintiff. Where reckless
disregard of the plaintiff’s interests is the theory of recovery, the presence of the
plaintiff at the time the outrageous conduct occurs is recognized as the element
establishing a higher degree of culpability which, in turn, justifies recovery of
greater damages by a broader group of plaintiffs than allowed on a negligent
infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at pp.
905–906, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 451–454
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-E,
Intentional Infliction Of Emotional Distress, ¶ 11:61 et seq. (The Rutter Group)
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§ 44.01 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.20 et seq. (Matthew Bender)
935
937
or position that gives him power to damage the plaintiff’s interests; (2) knows
the plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress. . . .’ ” (Molko v. Holy Spirit Ass’n
(1988) 46 Cal.3d 1092, 1122 [252 Cal.Rptr. 122, 762 P.2d 46], internal citation
omitted.)
• Relationships that have been recognized as significantly contributing to the
conclusion that particular conduct was outrageous include: employer-employee
(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498, fn.2 [86 Cal.Rptr.
88, 468 P.2d 216]), insurer-insured (Fletcher v. Western National Life Insurance
Co. (1970) 10 Cal.App.3d 376, 403–404 [89 Cal.Rptr. 78]), landlord-tenant
(Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281–282 [97 Cal.Rptr. 650]),
hospital-patient (Bundren v. Superior Court (1983) 145 Cal.App.3d 784,
791–792 [193 Cal.Rptr. 671]), attorney-client (McDaniel v. Gile (1991) 230
Cal.App.3d 363, 373 [281 Cal.Rptr. 242]), collecting creditors (Bundren, supra,
at p. 791, fn. 8), and religious institutions (Molko, supra, 46 Cal.3d at pp.
1122–1123).
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 451–454
4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress,
§§ 44.01, 44.03 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.10[3][c] (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, § 153.20 (Matthew Bender)
939
940
941
943
946
New September 2003; Revised December 2013, June 2014, December 2014,
December 2015
Directions for Use
Use this instruction in a negligence case if the only damages sought are for
emotional distress. The doctrine of “negligent infliction of emotional distress” is
not a separate tort or cause of action. It simply allows certain persons to recover
damages for emotional distress only on a negligence cause of action even though
they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation
Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)
A “bystander” case is one in which a plaintiff seeks recovery for damages for
emotional distress suffered as a percipient witness of an injury to another person. If
the plaintiff is a direct victim of tortious conduct, use CACI No. 1620,
Negligence—Recovery of Damages for Emotional Distress—No Physical
Injury—Direct Victim—Essential Factual Elements. For instructions for use for
emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI
947
951
This instruction should be read in conjunction with either CACI No. 401, Basic
Standard of Care, or CACI No. 418, Presumption of Negligence per se.
If plaintiff alleges that defendant’s conduct constituted oppression, fraud, or malice,
then CACI No. 1623, Negligence—Recovery of Damages for Emotional
Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Malicious,
Oppressive, or Fraudulent Conduct—Essential Factual Elements, should be read.
The explanation in the last paragraph of what constitutes “serious” emotional
distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d
at p. 928.) In Wong v. Jing, an appellate court subsequently held that serious
emotional distress from negligence without other injury is the same as “severe”
emotional distress for the tort of intentional infliction of emotional distress. (Wong
v. Jing (2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747].)
Sources and Authority
• “ ‘[D]amages for negligently inflicted emotional distress may be recovered in
the absence of physical injury or impact . . . .’ ” (Potter, supra, 6 Cal.4th at p.
986, internal citation omitted.)
• “[T]he way to avoid damage awards for unreasonable fear, i.e., in those cases
where the feared cancer is at best only remotely possible, is to require a
showing of the actual likelihood of the feared cancer to establish its
significance.” (Potter, supra, 6 Cal.4th at p. 990.)
• “[D]amages for fear of cancer may be recovered only if the plaintiff pleads and
proves that (1) as a result of the defendant’s negligent breach of a duty owed to
the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer;
and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable
medical or scientific opinion, that it is more likely than not that the plaintiff will
develop the cancer in the future due to the toxic exposure.” (Potter, supra, 6
Cal.4th at p. 997.)
• “ ‘[S]erious mental distress may be found where a reasonable man, normally
constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp.
927–928.)
• “In our view, this articulation of ‘serious emotional distress’ is functionally the
same as the articulation of ‘severe emotional distress’ [as required for
intentional infliction of emotional distress]. Indeed, given the meaning of both
phrases, we can perceive no material distinction between them and can conceive
of no reason why either would, or should, describe a greater or lesser degree of
emotional distress than the other for purposes of establishing a tort claim
seeking damages for such an injury.” (Wong, supra, 189 Cal.App.4th at p.
1378.)
• “[W]e hold that the cost of medical monitoring is a compensable item of
damages where the proofs demonstrate, through reliable medical expert
testimony, that the need for future monitoring is a reasonably certain
953
954
958
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
960
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
961
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
963
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1600, Intentional Infliction of Emotional
Distress—Essential Factual Elements, and CACI No. 1605, Intentional Infliction of
Emotional Distress—Affırmative Defense-Privileged Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
964
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1601, Intentional Infliction of Emotional
Distress—Fear of Cancer, HIV, or AIDS.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
966
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
967
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1620, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Direct Victim—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
969
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1621, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Bystander—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
971
972
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1622, Negligence—Recovery of Damages
for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or
AIDS—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
974
975
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
977
978
980
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she] proves by clear and convincing evidence that [name
of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, June 2016, December 2016, January
2018
Directions for Use
Special verdict form CACI No. VF-1700, Defamation per se (Public Offıcer/Figure
and Limited Public Figure), should be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face
(i.e., if the judge has not determined that the statement is defamatory as a matter of
law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel)
and 46 (slander). Note that certain specific grounds of libel per se have been
defined by case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
• Slander Defined. Civil Code section 46.
982
falls within Civil Code section 46, subdivisions 1 through 4. It is then for the
trier of fact to determine if the statement is defamatory. This allocation of
responsibility may appear, at first glance, to result in an overlap of
responsibilities because a trial court determination that the statement falls within
those categories would seemingly suggest that the statement, if false, is
necessarily defamatory. But a finder of fact might rely upon extraneous
evidence to conclude that, under the circumstances, the statement was not
defamatory.” (The Nethercutt Collection, supra, 172 Cal.App.4th at pp.
368–369.)
• “[T]he jury was instructed that if it found that defendant published matter that
was defamatory on its face and it found by clear and convincing evidence that
defendant knew the statement was false or published it in reckless disregard of
whether it was false, then the jury ‘also may award plaintiff presumed general
damages.’ Presumed damages ‘are those damages that necessarily result from
the publication of defamatory matter and are presumed to exist. They include
reasonable compensation for loss of reputation, shame, mortification, and hurt
feeling. No definite standard or method of calculation is prescribed by law by
which to fix reasonable compensation for presumed damages, and no evidence
of actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable compensation. In making an award for presumed
damages, you shall exercise your authority with calm and reasonable judgment
and the damages you fix shall be just and reasonable in the light of the
evidence. You may in the exercise of your discretion award nominal damages
only, namely an insignificant sum such as one dollar.’ [¶] . . . [¶] . . . [T]he
instant instruction, which limits damages to ‘those damages that necessarily
result from the publication of defamatory matter,’ constitutes substantial
compliance with [Civil Code] section 3283. Thus, the instant instructions, ‘if
obeyed, did not allow the jurors to “enter the realm of speculation” regarding
future suffering.’ ” (Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1472–1473
[48 Cal.Rptr.2d 235], internal citations omitted.)
• “In defamation actions generally, factual truth is a defense which it is the
defendant’s burden to prove. In a defamation action against a newspaper by a
private person suing over statements of public concern, however, the First
Amendment places the burden of proving falsity on the plaintiff. As a matter of
constitutional law, therefore, media statements on matters of public interest,
including statements of opinion which reasonably imply a knowledge of facts,
‘must be provable as false before there can be liability under state defamation
law.’ ” (Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1382
[88 Cal.Rptr.2d 802], internal citations omitted.)
• In matters involving public concern, the First Amendment protection applies to
nonmedia defendants, putting the burden of proving falsity of the statement on
the plaintiff. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375
[54 Cal.Rptr.2d 781].)
• “Publication means communication to some third person who understands the
984
defamatory meaning of the statement and its application to the person to whom
reference is made. Publication need not be to the ‘public’ at large;
communication to a single individual is sufficient.” (Smith, supra, 72
Cal.App.4th at p. 645, internal citations omitted.)
• “[W]hen a party repeats a slanderous charge, he is equally guilty of defamation,
even though he states the source of the charge and indicates that he is merely
repeating a rumor.” (Jackson v. Paramount Pictures Corp. (1998) 68
Cal.App.4th 10, 26 [80 Cal.Rptr.2d 1], internal citation omitted.)
• “At common law, one who republishes a defamatory statement is deemed
thereby to have adopted it and so may be held liable, together with the person
who originated the statement, for resulting injury to the reputation of the
defamation victim. California has adopted the common law in this regard,
although by statute the republication of defamatory statements is privileged in
certain defined situations.” (Khawar v. Globe Internat. (1998) 19 Cal.4th 254,
268 [79 Cal.Rptr.2d 178, 965 P.2d 696], internal citations omitted.)
• The general rule is that “a plaintiff cannot manufacture a defamation cause of
action by publishing the statements to third persons; the publication must be
done by the defendant.” There is an exception to this rule. [When it is
foreseeable that the plaintiff] “ ‘will be under a strong compulsion to disclose
the contents of the defamatory statement to a third person after he has read it or
been informed of its contents.’ ” (Live Oak Publishing Co. v. Cohagan (1991)
234 Cal.App.3d 1277, 1284 [286 Cal.Rptr. 198], internal citations omitted.)
• Whether a plaintiff in a defamation action is a public figure is a question of law
for the trial court. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d
244, 252 [208 Cal.Rptr. 137, 690 P.2d 610].)
• “To qualify as a limited purpose public figure, a plaintiff ‘must have undertaken
some voluntary [affirmative] act[ion] through which he seeks to influence the
resolution of the public issues involved.’ ” (Rudnick v. McMillan (1994) 25
Cal.App.4th 1183, 1190 [31 Cal.Rptr.2d 193]; see also Mosesian v. McClatchy
Newspapers (1991) 233 Cal.App.3d 1685, 1689 [285 Cal.Rptr. 430].)
• “Characterizing a plaintiff as a limited purpose public figure requires the
presence of certain elements. First, there must be a public controversy about a
topic that concerns a substantial number of people. In other words, the issue
was publicly debated. Second, the plaintiff must have voluntarily acted to
influence resolution of the issue of public interest. To satisfy this element, the
plaintiff need only attempt to thrust himself or herself into the public eye. Once
the plaintiff places himself or herself in the spotlight on a topic of public
interest, his or her private words and acts relating to that topic become fair
game. However, the alleged defamation must be germane to the plaintiff’s
participation in the public controversy.” (Grenier, supra, 234 Cal.App.4th at p.
484, internal citations omitted.)
• “The First Amendment limits California’s libel law in various respects. When,
as here, the plaintiff is a public figure, he cannot recover unless he proves by
985
clear and convincing evidence that the defendant published the defamatory
statement with actual malice, i.e., with ‘knowledge that it was false or with
reckless disregard of whether it was false or not.’ Mere negligence does not
suffice. Rather, the plaintiff must demonstrate that the author ‘in fact entertained
serious doubts as to the truth of his publication,’ or acted with a ‘high degree of
awareness of . . . probable falsity.’ ” (Masson v. New Yorker Magazine (1991)
501 U.S. 496, 510 [111 S.Ct. 2419, 115 L.Ed.2d 447], internal citations omitted;
see St. Amant v. Thompson (1968) 390 U.S. 727, 731 [88 S.Ct. 1323, 20
L.Ed.2d 262]; New York Times v. Sullivan (1964) 376 U.S. 254, 279–280 [84
S.Ct. 710, 11 L.Ed.2d 686].)
• The New York Times v. Sullivan standard applies to private individuals with
respect to presumed or punitive damages if the statement involves a matter of
public concern. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 349 [94 S.Ct.
2997, 41 L.Ed.2d 789].)
• “California . . . permits defamation liability so long as it is consistent with the
requirements of the United States Constitution.” (Melaleuca, Inc. v. Clark
(1998) 66 Cal.App.4th 1344, 1359 [78 Cal.Rptr.2d 627], citing Brown v. Kelly
Broadcasting Co. (1989) 48 Cal.3d 711, 740–742 [257 Cal.Rptr. 708, 771 P.2d
406].)
• “Actual malice under the New York Times standard should not be confused with
the concept of malice as an evil intent or a motive arising from spite or ill
will. . . . In place of the term actual malice, it is better practice that jury
instructions refer to publication of a statement with knowledge of falsity or
reckless disregard as to truth or falsity.” (Masson, supra, 501 U.S. at pp.
510–511, internal citations omitted.)
• Actual malice “does not require that the reporter hold a devout belief in the
truth of the story being reported, only that he or she refrain from either
reporting a story he or she knows to be false or acting in reckless disregard of
the truth.” (Jackson, supra, 68 Cal.App.4th at p. 35.)
• “The law is clear [that] the recklessness or doubt which gives rise to actual or
constitutional malice is subjective recklessness or doubt.” (Melaleuca, Inc.,
supra, 66 Cal.App.4th at p. 1365.)
• To show reckless disregard, “[t]here must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
his publication. Publishing with such doubts shows reckless disregard for truth
or falsity and demonstrates actual malice.” (St. Amant, supra, 390 U.S. at p.
731.)
• “ ‘A defamation plaintiff may rely on inferences drawn from circumstantial
evidence to show actual malice. [Citation.] “A failure to investigate [fn.
omitted] [citation], anger and hostility toward the plaintiff [citation], reliance
upon sources known to be unreliable [citations], or known to be biased against
the plaintiff [citations]—such factors may, in an appropriate case, indicate that
the publisher himself had serious doubts regarding the truth of his
986
987
New September 2003; Revised April 2008, June 2016, December 2016, January
2018
Directions for Use
Special verdict form CACI No. VF-1701, Defamation per quod (Public Offıcer/
Figure and Limited Public Figure), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per
quod case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
See also the Sources and Authority to CACI No. 1700, Defamation per
se—Essential Factual Elements (Public Offıcer/Figure and Limited Public Figure).
Sources and Authority
• Defamation. Civil Code section 44.
• Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
• Slander Defined. Civil Code section 46.
989
meaning, the pleader must do two things: (1) Allege his interpretation of the
defamatory meaning of the language (the ‘innuendo,’ . . .); (2) support that
interpretation by alleging facts showing that the readers or hearers to whom it
was published would understand it in that defamatory sense (the
‘inducement’).” [Citation.] “The office of an innuendo is to declare what the
words meant to those to whom they were published.” “In order to plead . . .
ambiguous language into an actionable libel . . . it is incumbent upon the
plaintiff also to plead an inducement, that is to say, circumstances which would
indicate that the words were understood in a defamatory sense showing that the
situation or opinion of the readers was such that they derived a defamatory
meaning from them. [Citation.]” ’ ” (Bartholomew v. YouTube, LLC. (2017) 17
Cal.App.5th 1217, 1227 [225 Cal.Rptr.3d 917], original italics, internal citations
omitted.)
• “For libel per quod, which [plaintiff] herself emphasizes is the cause of action
at issue here, it is ‘necessary that the words should have been published
concerning the plaintiff and should have been understood by at least one third
person to have concerned him [or her]. [Citations.] “Defamatory words to be
actionable must refer to some ascertained or ascertainable person, and that
person must be plaintiff [citations]. If the words used really contain no
reflection upon any particular individual, no averment can make them
defamatory. It is not necessary that plaintiff should be mentioned by name if the
words used in describing the person meant, can be shown to have referred to
him and to have been so understood [citation].” [Citation].’ ‘ “It is the office of
the inducement to narrate the extrinsic circumstances which, coupled with the
language published, affect its construction and render it actionable, where,
standing alone and not thus explained, the language would appear either not to
concern the plaintiff, or, if concerning him, not to affect him injuriously.
[Citation.]” ’ ” (Bartholomew, supra, 17 Cal.App.5th at p. 1231, internal citation
omitted.)
• “A slander that falls within the first four subdivisions of Civil Code section 46
is slander per se and requires no proof of actual damages. A slander that does
not fit into those four subdivisions is slander per quod, and special damages are
required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 705–718
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.10–340.75 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.24–142.27 (Matthew Bender)
991
992
New September 2003; Revised April 2008, October 2008, December 2009, June
2016, December 2016, January 2018
Directions for Use
Special verdict form CACI No. VF-1702, Defamation per se (Private
Figure—Matter of Public Concern), should be used in this type of case.
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1700, Defamation per se—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Use the bracketed element 3 only if the statement is not defamatory on its face
(i.e., if the judge has not determined that the statement is defamatory as a matter of
law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel)
and 46 (slander). Note that certain specific grounds of libel per se have been
defined by case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
994
• “For the New York Times standard to be met, ‘the publisher must come close to
willfully blinding itself to the falsity of its utterance.’ ” (Brown, supra, 48
Cal.3d at p. 747, internal citation omitted.)
• “ ‘While such speech is not totally unprotected by the First Amendment, its
protections are less stringent’ [than that applying to speech on matters of public
concern].” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434,
445 [26 Cal.Rptr.2d 305], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 719–721
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.12–340.13, 340.18 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.30–142.40, 142.87 et seq. (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
997
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1703, Defamation per quod (Private Figure—Matter of
Public Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per
quod case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1701, Defamation per quod—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
999
1001
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1704, Defamation per se—Affırmative Defense—Truth
(Private Figure—Matter of Private Concern), may be used in this type of case.
Use the bracketed element 3 only if the statement is not defamatory on its face
(i.e., if the judge has not determined that the statement is defamatory as a matter of
law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel)
and 46 (slander). Note that certain specific grounds of libel per se have been
defined by case law.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1700, Defamation per se—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Sources and Authority
• “Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact that is false, unprivileged, and has
a natural tendency to injure or which causes special damage.” (Smith v.
1003
1005
New September 2003; Revised April 2008, December 2009, June 2016, December
2016, January 2018
Directions for Use
Special verdict form VF-1705, Defamation per quod (Private Figure—Matter of
Private Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per
quod case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780–787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
For statutes and cases on libel and slander and on the difference between
defamation per se and defamation per quod, see the Sources and Authority to CACI
No. 1701, Defamation per quod—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
• Special Damages. Civil Code section 48a(4)(b).
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “If [a] defamatory meaning would appear only to readers who might be able to
recognize it through some knowledge of specific facts and/or circumstances, not
1007
discernible from the face of the publication, and which are not matters of
common knowledge rationally attributable to all reasonable persons, then the
libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis
Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
• “In pleading a case of libel per quod the plaintiff cannot assume that the court
has access to the reader’s special knowledge of extrinsic facts but must
specially plead and prove those facts.” (Palm Springs Tennis Club, supra, 73
Cal.App.4th at p. 7, footnote omitted.)
• “A libel ‘per quod’ . . . requires that the injurious character or effect be
established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
• “In the libel context, ‘inducement’ and ‘innuendo’ are terms of art: ‘[W]here the
language is ambiguous and an explanation is necessary to establish the
defamatory meaning, the pleader must do two things: (1) allege his
interpretation of the defamatory meaning of the language (the “innuendo,”
. . . ); (2) support that interpretation by alleging facts showing that the readers
or hearers to whom it was published would understand it in that defamatory
sense (the “inducement”).’ ” (Barnes-Hind, Inc. v. Superior Court (1986) 181
Cal.App.3d 377, 387 [226 Cal.Rptr. 354].)
• “A defamatory publication not libelous on its face is not actionable unless the
plaintiff alleges that he has suffered special damages as a result thereof.”
(Selleck v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr.
838].)
• “The question whether a statement is reasonably susceptible to a defamatory
interpretation is a question of law for the trial court. Only once the court has
determined that a statement is reasonably susceptible to such a defamatory
interpretation does it become a question for the trier of fact whether or not it
was so understood.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [85
Cal.Rptr.2d 397], internal citations omitted.)
• Private-figure plaintiffs must prove actual malice to recover punitive or
presumed damages for defamation if the matter is one of public concern. They
are required to prove only negligence to recover damages for actual injury to
reputation. (Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79
Cal.Rptr.2d 178, 965 P.2d 696].)
• If the language is not defamatory on its face, there is no distinction between
libel and slander: “In either case, the fact that a statement is not defamatory on
its face requires only that the plaintiff plead and prove the defamatory meaning
and special damages.” (Savage v. Pacific Gas & Electric Co. (1993) 21
Cal.App.4th 434, 447 [26 Cal.Rptr.2d 305].)
• A plaintiff must prove that the defendant was at least negligent in failing to
ascertain the truth or falsity of the statement. (Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323, 345–347 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
1008
1009
1010
natural and probable effect of the statement.” (Hofmann Co. v. E.I. Du Pont de
Nemors & Co. (1988) 202 Cal.App.3d 390, 398 [248 Cal.Rptr. 384].)
• “[S]ome statements are ambiguous and cannot be characterized as factual or
nonfactual as a matter of law. ‘In these circumstances, it is for the jury to
determine whether an ordinary reader would have understood the article as a
factual assertion . . . .’ ” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608
[284 Cal.Rptr. 244], internal citations omitted.)
• “Use of ‘hyperbolic, informal’ ‘ “crude, [or] ungrammatical” language, satirical
tone, [or] vituperative, “juvenile name-calling” ’ provide support for the
conclusion that offensive comments were nonactionable opinion. Similarly,
overly vague statements, and ‘ “generalized” comments . . . “lack[ing] any
specificity as to the time or place of” alleged conduct may be a “further signal
to the reader there is no factual basis for the accusations.” ’ On the other hand,
if a statement is ‘factually specific,’ ‘earnest’, or ‘serious’ in tone, or the
speaker ‘represents himself as “unbiased,” ’ ‘ “having specialized” ’ or ‘ “first-
hand experience,” ’ or ‘ “hav[ing] personally witnessed . . . abhorrent
behavior” ’, this may signal the opposite, rendering the statement actionable.”
(ZL Technologies, Inc. v. Does 1–7 (2017) 13 Cal.App.5th 603, 624 [220
Cal.Rptr.3d 569], internal citations omitted.)
• “Whether a challenged statement ‘declares or implies a provable false assertion
of fact is a question of law for the court to decide . . . , unless the statement is
susceptible of both an innocent and a libelous meaning, in which case the jury
must decide how the statement was understood.’ ” (Overhill Farms, Inc. v.
Lopez (2010) 190 Cal.App.4th 1248, 1261 [119 Cal.Rptr.3d 127].)
• “We next turn to the broader context of his statements—posting on an Internet
site under an assumed user name. [Defendant] contends Internet fora are
notorious as ‘places where readers expect to see strongly worded opinions
rather than objective facts,’ and that ‘anonymous, or pseudonymous,’ opinions
should be ‘ “discount[ed] . . . accordingly.” ’ However, the mere fact speech is
broadcast across the Internet by an anonymous speaker does not ipso facto
make it nonactionable opinion and immune from defamation law.” (Bently
Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 429 [160 Cal.Rptr.3d
423], internal citation omitted.)
• “Rather, a defendant’s anonymity, the name of the Internet forum, the nature,
language, tone, and complete content of the remarks all are relevant.” (ZL
Technologies, Inc., supra, 13 Cal.App.5th at p. 625.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 643–646
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05–45.06 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.16
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
1013
1014
1016
New September 2003; Revised June 2016, May 2017; Renumbered from CACI No.
1722 November 2017
Directions for Use
The judge should decide whether the demand for a retraction was served in
compliance with the statute. (O’Hara v. Storer Communications, Inc. (1991) 231
Cal.App.3d 1101, 1110 [282 Cal.Rptr. 712].)
The statute is limited to actions “for damages for the publication of a libel in a
daily or weekly news publication, or of a slander by radio broadcast.” (Civ. Code,
§ 48a(a).) However, a “radio broadcast” includes television. (Civ. Code, § 48.5(4)
[the terms “radio,” “radio broadcast,” and “broadcast,” are defined to include both
visual and sound radio broadcasting]; Kalpoe v. Superior Court (2013) 222
Cal.App.4th 206, 210, 166 Cal.Rptr.3d 80].)
Sources and Authority
• Demand for Correction. Civil Code section 48a.
• “Under California law, a newspaper gains immunity from liability for all but
1017
1018
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.10 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.55
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.39 (Matthew Bender)
1 California Civil Practice: Torts §§ 21:19, 21:52 (Thomson Reuters)
1020
1021
New April 2009; Renumbered from CACI No. 1724 November 2017
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
filed within the applicable one-year limitation period for defamation. (See Code
Civ. Proc., § 340(c).)
If the defamation was published in a publication such as a book, newspaper, or
magazine, include the last sentence of the first paragraph, and do not include the
second paragraph The delayed-discovery rule does not apply to these statements.
(Shively v. Bozanich (2003) 31 Cal.4th 1230, 1250–1251 [7 Cal.Rptr.3d 576, 80
P.3d 676].) Otherwise, include the second paragraph if the plaintiff alleges that the
delayed-discovery rule avoids the limitation defense.
The plaintiff bears the burden of pleading and proving delayed discovery. (See
McKelvey v. Boeing North Am. Inc. (1999) 74 Cal.App.4th 151, 160 [86
Cal.Rptr.2d 645].) See also the Sources and Authority to CACI No. 455, Statute of
Limitations—Delayed Discovery.
The delayed discovery rule can apply to matters published in an inherently
secretive manner. (Hebrew Academy of San Francisco v. Goldman (2007) 42
Cal.4th 883, 894 [70 Cal.Rptr.3d 178, 173 P.3d 1004]. Modify the instruction if
inherent secrecy is at issue and depends on disputed facts. It is not clear whether
the plaintiff has the burden of proving inherent secrecy or the defendant has the
burden of proving its absence.
Sources and Authority
• One-Year Statute of Limitations. Code of Civil Procedure section 340.
• “In a claim for defamation, as with other tort claims, the period of limitations
commences when the cause of action accrues. . . . [A] cause of action for
defamation accrues at the time the defamatory statement is ‘published’ (using
1022
the term ‘published’ in its technical sense). [¶] [I]n defamation actions the
general rule is that publication occurs when the defendant communicates the
defamatory statement to a person other than the person being defamed. As also
has been noted, with respect to books and newspapers, publication occurs (and
the cause of action accrues) when the book or newspaper is first generally
distributed to the public.” (Shively, supra, 31 Cal.4th at pp. 1246–1247, internal
citations omitted.)
• “This court and other courts in California and elsewhere have recognized that in
certain circumstances it may be appropriate to apply the discovery rule to delay
the accrual of a cause of action for defamation or to impose an equitable
estoppel against defendants who assert the defense after the limitations period
has expired.” (Shively, supra, 31 Cal.4th at pp. 1248–1249.)
• “[A]pplication of the discovery rule to statements contained in books and
newspapers would undermine the single-publication rule and reinstate the
indefinite tolling of the statute of limitations intended to be cured by the
adoption of the single-publication rule. If we were to recognize delayed accrual
of a cause of action based upon the allegedly defamatory statement contained in
the book . . . on the basis that plaintiff did not happen to come across the
statement until some time after the book was first generally distributed to the
public, we would be adopting a rule subjecting publishers and authors to
potential liability during the entire period in which a single copy of the book or
newspaper might exist and fall into the hands of the subject of a defamatory
remark. Inquiry into whether delay in discovering the publication was
reasonable has not been permitted for publications governed by the single-
publication rule. Nor is adoption of the rule proposed by plaintiff appropriate
simply because the originator of a privately communicated defamatory
statement may, together with the author and the publisher of a book, be liable
for the defamation contained in the book. Under the rationale for the single-
publication rule, the originator, who is jointly responsible along with the author
and the publisher, should not be liable for millions of causes of action for a
single edition of the book. Similarly, consistent with that rationale, the
originator, like the author or the publisher, should not be subject to suit many
years after the edition is published.” (Shively, supra, 31 Cal.4th at p. 1251.)
• “The single-publication rule as described in our opinion in Shively and as
codified in Civil Code section 3425.3 applies without limitation to all
publications.” (Hebrew Academy of San Francisco, supra, 42 Cal.4th at p. 893.)
• “[T]he single-publication rule applies not only to books and newspapers that are
published with general circulation (as we addressed in Shively), but also to
publications like that in the present case that are given only limited circulation
and, thus, are not generally distributed to the public. Further, the discovery rule,
which we held in Shively does not apply when a book or newspaper is generally
distributed to the public, does not apply even when, as in the present case, a
publication is given only limited distribution.” (Hebrew Academy of San
Francisco, supra, 42 Cal.4th at p. 890.)
1023
1024
• “This definition is not exclusive, however, and the cases have taken an ‘eclectic
approach’ toward interpreting the statute.” (Klem v. Access Ins. Co. (2017) 17
Cal.App.5th 595, 617 [225 Cal.Rptr.3d 711].)
• “Communications made in a commercial setting relating to the conduct of an
employee have been held to fall squarely within the qualified privilege for
communications to interested persons.” (Cornell v. Berkeley Tennis Club (2017)
18 Cal.App.5th 908, 949 [227 Cal.Rptr.3d 286].)
• “For the purposes of section 47’s qualified privilege, ‘malice’ means that the
defendant (1) ‘ “was motivated by hatred or ill will towards the plaintiff,” ’ or
(2) ‘ “lacked reasonable grounds for [its] belief in the truth of the publication
and therefore acted in reckless disregard of the plaintiff’s rights.” ’ ” (Schep v.
Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1337 [220 Cal.Rptr.3d 408].)
• “[M]alice [as used in Civil Code section 47(c)] has been defined as ‘a state of
mind arising from hatred or ill will, evidencing a willingness to vex, annoy or
injure another person.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d
711, 723 [257 Cal.Rptr. 708, 771 P.2d 406], internal citation omitted.)
• “[M]alice focuses upon the defendant’s state of mind, not his [or her] conduct.”
(Cornell, supra, 18 Cal.App.5th at p. 951.)
• “[M]alice may not be inferred from the mere fact of the communication.”
(Barker, supra, 240 Cal.App.4th at p. 354.)
• “For purposes of establishing a triable issue of malice, ‘the issue is not the truth
or falsity of the statements but whether they were made recklessly without
reasonable belief in their truth.’ A triable issue of malice would exist if
[defendant] made a statement in reckless disregard of Employee’s rights that
[defendant] either did not believe to be true (i.e., he actually knew better) or
unreasonably believed to be true (i.e., he should have known better). In either
case, a fact finder would have to ascertain what [defendant] subjectively knew
and believed about the topic at the time he spoke.” (McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal.App.4th 1510, 1540 [152 Cal.Rptr.3d 154],
internal citation omitted.)
• “[M]aliciousness cannot be derived from negligence. Malice entails more than
sloppiness or, as in this case, an easily explained typo.” (Bierbower v. FHP, Inc.
(1999) 70 Cal.App.4th 1, 9 [82 Cal.Rptr.2d 393].)
• “[I]f malice is shown, the privilege is not merely overcome; it never arises in
the first instance. . . . [T]he characterization of the privilege as qualified or
conditional is incorrect to the extent that it suggests the privilege is defeasible.”
(Brown, supra, 48 Cal.3d at p. 723, fn. 7.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 92, 655, 690–704
Chin, et al., California Practice Guide: Employment Litigation, Ch. 5(I)-D,
Employment Torts And Related Claims—Defamation, ¶ 5:471 et seq. (The Rutter
Group)
1026
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.12 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.66
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.53 (Matthew Bender)
California Civil Practice: Torts §§ 21:40–21:41 (Thomson Reuters)
1027
of fact with respect to whether the average listener would understand the
broadcast to capture the gist or sting of the citizen’s complaint, or whether the
charge made in the broadcast would affect the listener differently than that made
in the citizen’s complaint.” (Burrill, supra, 217 Cal.App.4th at p. 398.)
• “In evaluating the effect a publication has on the average reader, the challenged
language must be viewed in context to determine whether, applying a ‘totality
of the circumstances’ test, it is reasonably susceptible to the defamatory
meaning alleged by the plaintiff: ‘ “[A] defamatory meaning must be found, if
at all, in a reading of the publication as a whole.” [Citation.] “This is a rule of
reason. Defamation actions cannot be based on snippets taken out of context.” ’
(J-M Manufacturing Co., Inc., supra, 247 Cal.App.4th at p. 97, internal
citations omitted.)
• “[Defendant] bears the burden of proving the privilege applies.” (Burrill, supra,
217 Cal.App.4th at p. 396.)
• “ ‘A report of a judicial proceeding implies that some official action has been
taken by the officer or body whose proceedings are thus reported. The
publication, therefore, of the contents of preliminary pleadings such as a
complaint or petition, before any judicial action has been taken is not within the
rule stated in this Section. An important reason for this position has been to
prevent implementation of a scheme to file a complaint for the purpose of
establishing a privilege to publicize its content and then dropping the action.
(See Comment c). It is not necessary, however, that a final disposition be made
of the matter in question; it is enough that some judicial action has been taken
so that, in the normal progress of the proceeding, a final decision will be
rendered.’ ” (Burrill, supra, at p. 397, quoting Restatement 2d of Torts, § 611,
comment e.)
Secondary Sources
9 Witkin, Summary of California Law (10th ed. 2005) Torts, § 586
4 Levy et al., California Torts, Ch. 45, Intentional Torts and Other Theories of
Recovery, § 45.11 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.64
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander, § 142.51
(Matthew Bender)
1725–1729. Reserved for Future Use
1030
for the depreciation in the market value of the property.’ ” (M.F. Farming, Co.
v. Couch Distributing Co. (2012) 207 Cal.App.4th 180, 198–199 [143
Cal.Rptr.3d 160], internal citations omitted.)
• “Slander of title ‘occurs when a person, without a privilege to do so, publishes
a false statement that disparages title to property and causes pecuniary loss.
[Citation.]’ The false statement must be ‘ “maliciously made with the intent to
defame.” ’ ” (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651 [142
Cal.Rptr.3d 34], internal citations omitted.)
• “One who publishes a false statement harmful to the interests of another is
subject to liability for pecuniary loss resulting to the other if (a) he intends for
publication of the statement to result in harm to interests of the other having a
pecuniary value, or either recognizes or should recognize that it is likely to do
so, and (b) he knows that the statement is false or acts in reckless disregard of
its truth or falsity.” (Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 [206
Cal.Rptr. 259], quoting Rest. 2d Torts § 623A.)
• “One who, without a privilege to do so, publishes matter which is untrue and
disparaging to another’s property in land, chattels or intangible things under
such circumstances as would lead a reasonable man to foresee that the conduct
of a third person as purchaser or lessee thereof might be determined thereby is
liable for pecuniary loss resulting to the other from the impairment of
vendibility thus caused.” (Chrysler Credit Corp. v. Ostly (1974) 42 Cal.App.3d
663, 674 [117 Cal.Rptr. 167], quoting Rest. Torts, § 624 [motor vehicle case].)
• “Sections 623A, 624 and 633 of the Restatement Second of Torts further refine
the definition so it is clear included elements of the tort are that there must be
(a) a publication, (b) which is without privilege or justification and thus with
malice, express or implied, and (c) is false, either knowingly so or made
without regard to its truthfulness, and (d) causes direct and immediate pecuniary
loss.” (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263–264 [169 Cal.Rptr.
678], footnote and internal citations omitted.)
• “In an action for wrongful disparagement of title, a plaintiff may recover (1) the
expense of legal proceedings necessary to remove the doubt cast by the
disparagement, (2) financial loss resulting from the impairment of vendibility of
the property, and (3) general damages for the time and inconvenience suffered
by plaintiff in removing the doubt cast upon his property.” (Klem v. Access Ins.
Co. (2017) 17 Cal.App.5th 595, 624 [225 Cal.Rptr.3d 711].)
• “While it is true that an essential element of a cause of action for slander of
title is that the plaintiff suffered pecuniary damage as a result of the
disparagement of title, the law is equally clear that the expense of legal
proceedings necessary to remove the doubt cast by the disparagement and to
clear title is a recognized form of pecuniary damage in such cases.” (Sumner
Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205
Cal.App.4th 999, 1032 [141 Cal.Rptr.3d 109], internal citations omitted; see
Rest.2d Torts, § 633, subd. (1)(b).)
1033
• “Civil Code section 47(b)(4) clearly describes the conditions for application of
the [litigation] privilege to a recorded lis pendens as follows: ‘A recorded lis
pendens is not a privileged publication unless it identifies an action previously
filed with a court of competent jurisdiction which affects the title or right of
possession of real property, as authorized or required by law.’ Those conditions
are (1) the lis pendens must identify a previously filed action and (2) the
previously filed action must be one that affects title or right of possession of
real property. We decline to add a third requirement that there must also be
evidentiary merit.” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461,
476 [149 Cal.Rptr.3d 716], internal citation omitted.)
• “[T]he property owner may recover for the impairment of the vendibility ‘of his
property’ without showing that the loss was caused by prevention of a particular
sale. ‘The most usual manner in which a third person’s reliance upon
disparaging matter causes pecuniary loss is by preventing a sale to a particular
purchaser. . . . The disparaging matter may, if widely disseminated, cause
pecuniary loss by depriving its possessor of a market in which, but for the
disparagement, his land or other thing might with reasonable certainty have
found a purchaser.’ ” (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 424
[96 Cal.Rptr. 902].)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts §§ 747, 1886
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.80 et seq. (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.90
(Matthew Bender)
1035
• “The distinction between libel and trade libel is that the former concerns the
person or reputation of plaintiff and the latter relates to his goods.” (Shores v.
Chip Steak Co. (1955) 130 Cal.App.2d 627, 630 [279 P.2d 595].)
• “[A]n action for ‘slander of title’ . . . is a form of action somewhat related to
trade libel . . . .” (Erlich, supra, 224 Cal.App.2d at p. 74.)
• “Confusion surrounds the tort of ‘commercial disparagement’ because not only
is its content blurred and uncertain, so also is its very name. The tort has
received various labels, such as ‘commercial disparagement,’ ‘injurious
falsehood,’ ‘product disparagement,’ ‘trade libel,’ ‘disparagement of property,’
and ‘slander of goods.’ These shifting names have led counsel and the courts
into confusion, thinking that they were dealing with different bodies of law. In
fact, all these labels denominate the same basic legal claim.” (Hartford Casualty
Ins. Co., supra, 59 Cal.4th at p. 289.)
• “The protection the common law provides statements which disparage products
as opposed to reputations is set forth in the Restatement Second of Torts
sections 623A and 626. Section 623A provides: ‘One who publishes a false
statement harmful to the interests of another is subject to liability for pecuniary
loss resulting to the other if [P] (a) he intends for publication of the statement
to result in harm to interests of the other having a pecuniary value, or either
recognizes or should recognize that it is likely to do so, and [P](b) he knows
that the statement is false or acts in reckless disregard of its truth or falsity.’ [¶]
Section 626 of Restatement Second of Torts in turn states: ‘The rules on
liability for the publication of an injurious falsehood stated in § 623A apply to
the publication of matter disparaging the quality of another’s land, chattels or
intangible things, that the publisher should recognize as likely to result in
pecuniary loss to the other through the conduct of a third person in respect to
the other’s interests in the property.’ ” (Melaleuca, Inc., supra, 66 Cal.App.4th
at pp. 1360–1361, original italics.)
• “According to section 629 of the Restatement Second of Torts (1977), ‘[a]
statement is disparaging if it is understood to cast doubt upon the quality of
another’s land, chattels or intangible things, or upon the existence or extent of
his property in them, and [¶] (a) the publisher intends the statement to cast the
doubt, or [¶] (b) the recipient’s understanding of it as casting the doubt was
reasonable.’ ” (Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 288.)
• “What distinguishes a claim of disparagement is that an injurious falsehood has
been directed specifically at the plaintiff’s business or product, derogating that
business or product and thereby causing that plaintiff special damages.”
(Hartford Casualty Ins. Co., supra, 59 Cal.4th at p. 294, original italics.)
• “The Restatement [2d Torts] view is that, like slander of title, what is
commonly called ‘trade libel’ is a particular form of the tort of injurious
falsehood and need not be in writing.” (Polygram Records, Inc., supra, 170
Cal.App.3d at p. 548.)
• “While . . . general damages are presumed in a libel of a businessman, this is
1038
not so in action for trade libel. Dean Prosser has discussed the problems in such
actions as follows: ‘Injurious falsehood, or disparagement, then, may consist of
the publication of matter derogatory to the plaintiff’s title to his property, or its
quality, or to his business in general, . . . The cause of action founded upon it
resembles that for defamation, but differs from it materially in the greater
burden of proof resting on the plaintiff, and the necessity for special damage in
all cases. . . . [The] plaintiff must prove in all cases that the publication has
played a material and substantial part in inducing others not to deal with him,
and that as a result he has suffered special damages. . . . Usually, . . . the
damages claimed have consisted of loss of prospective contracts with the
plaintiff’s customers. Here the remedy has been so hedged about with
limitations that its usefulness to the plaintiff has been seriously impaired. It is
nearly always held that it is not enough to show a general decline in his
business resulting from the falsehood, even where no other cause for it is
apparent, and that it is only the loss of specific sales that can be recovered. This
means, in the usual case, that the plaintiff must identify the particular
purchasers who have refrained from dealing with him, and specify the
transactions of which he claims to have been deprived.’ ” (Erlich, supra, 224
Cal.App. 2d at pp. 73–74.)
• “Because the gravamen of the complaint is the allegation that respondents made
false statements of fact that injured appellant’s business, the ‘limitations that
define the First Amendment’s zone of protection’ are applicable. ‘[It] is
immaterial for First Amendment purposes whether the statement in question
relates to the plaintiff himself or merely to his property . . . .’ ” (Hofmann Co.,
supra, 202 Cal.App.3d at p. 397, internal citation omitted.)
• “If respondents’ statements about appellant are opinions, the cause of action for
trade libel must of course fail. ‘Under the First Amendment there is no such
thing as a false idea. However pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on the competition
of other ideas. But there is no constitutional value in false statements of fact.’
Statements of fact can be true or false, but an opinion—‘a view, judgment, or
appraisal formed in the mind . . . [a] belief stronger than impression and less
strong than positive knowledge’—is the result of a mental process and not
capable of proof in terms of truth or falsity.” (Hofmann Co., supra, 202
Cal.App.3d at p. 397, footnote and internal citation omitted.)
• “[I]t is not absolutely necessary that the disparaging publication be intentionally
designed to injure. If the statement was understood in its disparaging sense and
if the understanding is a reasonable construction of the language used or the
acts done by the publisher, it is not material that the publisher did not intend
the disparaging statement to be so understood.” (Nichols, supra, 169 Cal.App.3d
at p. 773.)
• “Disparagement by ‘reasonable implication’ requires more than a statement that
may conceivably or plausibly be construed as derogatory to a specific product
or business. A ‘reasonable implication’ in this context means a clear or
1039
1040
ACTUAL DAMAGES
6. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff] actual harm?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, skip question 7 and answer question 8.
7. What are [name of plaintiff]’s actual damages for:
[a. Harm to [name of plaintiff]’s property, business, trade,
profession, or occupation? . . . . . . . . . . . . . . $ ]
[b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements? . . . . . . . . . . . . . . . . $ ]
[c. Harm to [name of plaintiff]’s reputation? . . . . . . $ ]
[d. Shame, mortification, or hurt feelings? . . . . . . . $ ]
7. [If [name of plaintiff] has not proved any actual damages for
either c or d, then answer question 8. If [name of plaintiff] has
proved actual damages for both c and d, skip question 8 and
answer question 9.]
ASSUMED DAMAGES
8. What are the damages you award [name of plaintiff] for the
assumed harm to [his/her] reputation, and for shame,
mortification, or hurt feelings? You must award at least a
nominal sum.
$
PUNITIVE DAMAGES
9. Did [name of plaintiff] prove by clear and convincing evidence
that [name of defendant] acted with malice, oppression, or fraud?
9. Yes No
9. If your answer to question 9 is yes, then answer question 10. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
10. What is your award of punitive damages, if any, against [name of
defendant]?
$
Signed:
Presiding Juror
1042
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1700, Defamation per se—Essential
Factual Elements (Public Offıcer/Figure and Limited Public Figure).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8.
For these categories, the jury may find that no actual damages have been proven
but must still make an award of assumed damages.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1043
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
1045
1046
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1702, Defamation per se—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame, mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8.
For these categories, the jury may find that no actual damages have been proven
but must still make an award of assumed damages.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
1049
1050
1052
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Multiple statements may need to be set out separately, and if separate damages are
claimed as to each statement, separate verdict forms may be needed for each
statement because all the elements may need to be found as to each statement.
Users may need to itemize all the damages listed in question 8 if, for example,
there are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Question 5 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1703, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Public Concern), depending on which ground is
applicable in the case.
Additional questions may be needed on the issue of punitive damages if the
defendant is a corporate or other entity.
Omit question 11 if the issue of punitive damages has been bifurcated.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1053
1055
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, April 2008, October 2008,
December 2010, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1704, Defamation per se—Essential
Factual Elements (Private Figure—Matter of Private Concern), and CACI No.
1720, Affirmative Defense—Truth. Delete question 4 if the affirmative defense of
the truth is not at issue.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
Multiple statements may need to be set out separately in question 1, and if separate
damages are claimed as to each statement, separate verdict forms may be needed
for each statement because all the elements will need to be found as to each
statement.
Give the jury question 3 only if the statement is not defamatory on its face.
In question 7, omit damage items c and d if the plaintiff elects not to present proof
of actual damages for harm to reputation and for shame, mortification, or hurt
feelings. Whether or not proof for both categories is offered, include question 8.
For these categories, the jury may find that no actual damages have been proven
but must still make an award of assumed damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
Additional questions on the issue of punitive damages may be needed if the
defendant is a corporate or other entity.
Omit question 10 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
1056
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1057
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016,
May 2017
Directions for Use
This verdict form is based on CACI No. 1703, Defamation per quod—Essential
Factual Elements (Private Figure—Matter of Public Concern).
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is a dispute as to whether the statement in question 1 is one of fact or
opinion, an additional question or questions will be needed. See CACI No. 1707,
Fact Versus Opinion.
Multiple statements may need to be set out separately in question 1, and if separate
damages are claimed as to each statement, separate verdict forms may be needed
for each statement because all the elements will need to be found as to each
statement.
Question 4 may be modified by referring to one of the other two grounds listed in
element 3 of CACI No. 1705, Defamation per quod—Essential Factual Elements
(Private Figure—Matter of Private Concern), depending on which ground is
applicable in the case.
If the affirmative defense of truth is at issue (see CACI No. 1720, Affırmative
Defense—Truth), include question 4 from VF-1704, Defamation per se—Affırmative
Defense—Truth (Private Figure—Matter of Private Concern). Additional questions
may be needed on the issue of punitive damages if the defendant is a corporate or
other entity.
Users may need to itemize all the damages listed in question 7 if, for example,
there are multiple defendants and issues regarding apportionment of damages under
Proposition 51.
Omit question 9 if the issue of punitive damages has been bifurcated.
If there are multiple causes of action, users may wish to combine the individual
1060
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1706–VF-1719. Reserved for Future Use
1061
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional;
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1064
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was [name of defendant]’s conduct a substantial factor in causing
[name of plaintiff]’s harm?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss $ ]
[b. Future economic loss $ ]
[b. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1722–VF-1799. Reserved for Future Use
1067
1068
1069
1071
protection and giving rise to tort liability: (1) intrusion into private matters; (2)
public disclosure of private facts; (3) publicity placing a person in a false light;
and (4) misappropriation of a person’s name or likeness . . . .Prosser’s
classification was adopted by the Restatement Second of Torts in sections
652A–652E. California common law has generally followed Prosser’s
classification of privacy interests as embodied in the Restatement.” (Hill v.
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834,
865 P.2d 633].)
• The tort of intrusion “encompasses unconsented-to physical intrusion into the
home, hospital room or other place the privacy of which is legally recognized,
as well as unwarranted sensory intrusions such as eavesdropping, wiretapping,
and visual or photographic spying.” (Shulman v. Group W Productions, Inc.
(1998) 18 Cal.4th 200, 230 [74 Cal.Rptr.2d 843, 955 P.2d 469], internal citation
omitted.)
• The right of privacy was first recognized in California in the case of Melvin v.
Reid (1931) 112 Cal.App. 285, 291 [297 P. 91]. The court found a legal
foundation for the tort in the right to pursue and obtain happiness found in
article I, section 1 of the California Constitution.
• “The foregoing arguments have been framed throughout this action in terms of
both the common law and the state Constitution. These two sources of privacy
protection ‘are not unrelated’ under California law. (Shulman, supra, 18 Cal.4th
200, 227; accord, Hill, supra, 7 Cal.4th 1, 27; but see Katzberg v. Regents of
University of California (2002) 29 Cal.4th 300, 313, fn. 13 [127 Cal.Rptr.2d
482, 58 P.3d 339] [suggesting it is an open question whether the state
constitutional privacy provision, which is otherwise self-executing and serves as
the basis for injunctive relief, can also provide direct and sole support for a
damages claim].)” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286 [97
Cal.Rptr.3d 274, 211 P.3d 1063].)
• “[W]e will assess the parties’ claims and the undisputed evidence under the
rubric of both the common law and constitutional tests for establishing a
privacy violation. Borrowing certain shorthand language from Hill, supra, 7
Cal.4th 1, which distilled the largely parallel elements of these two causes of
action, we consider (1) the nature of any intrusion upon reasonable expectations
of privacy, and (2) the offensiveness or seriousness of the intrusion, including
any justification and other relevant interests.” (Hernandez, supra, 47 Cal.4th at
p. 288.)
• The element of intrusion “is not met when the plaintiff has merely been
observed, or even photographed or recorded, in a public place. Rather, ‘the
plaintiff must show the defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about, the plaintiff.’ ”
(Sanders v. American Broadcasting Co. (1999) 20 Cal.4th 907, 914–915 [85
Cal.Rptr.2d 909, 978 P.2d 67], internal citations omitted.)
• “As to the first element of the common law tort, the defendant must have
1073
1075
“means that the matter is made public, by communicating it to the public at large,
or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.” This point has been placed in brackets because
it may not be an issue in every case.
Sources and Authority
• “[T]he allegations involve a public disclosure of private facts. The elements of
this tort are ‘ “(1) public disclosure (2) of a private fact (3) which would be
offensive and objectionable to the reasonable person and (4) which is not of
legitimate public concern.” ’ The absence of any one of these elements is a
complete bar to liability.” (Moreno v. Hanford Sentinel, Inc. (2009) 172
Cal.App.4th 1125, 1129–1130 [91 Cal.Rptr.3d 858], internal citations omitted.)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633],
internal citation omitted.)
• “Generally speaking, matter which is already in the public domain is not
private, and its publication is protected.” (Diaz v. Oakland Tribune (1983) 139
Cal.App.3d 118, 131 [188 Cal.Rptr. 762], internal citations omitted.) “[M]atter
which was once of public record may be protected as private facts where
disclosure of that information would not be newsworthy.” (Id. at p. 132.)
• “[W]e find it reasonable to require a plaintiff to prove, in each case, that the
publisher invaded his privacy with reckless disregard for the fact that reasonable
men would find the invasion highly offensive.” (Briscoe v. Reader’s Digest
Assn., Inc. (1971) 4 Cal.3d 529, 542–543 [93 Cal.Rptr. 866, 483 P.2d 34].)
• “If a jury finds that a publication discloses private facts which are ‘highly
offensive and injurious to the reasonable man’ [citation] then it would inter alia
also satisfy the reckless disregard requirement.” (Johnson v. Harcourt, Brace,
Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 891, fn. 11 [118 Cal.Rptr. 370].)
• “Diaz . . . expressly makes the lack of newsworthiness part of the plaintiff’s
case in a private facts action. . . . We therefore agree with defendants that
under California common law the dissemination of truthful, newsworthy
material is not actionable as a publication of private facts.” (Shulman v. Group
W Productions, Inc. (1998) 18 Cal.4th 200, 215 [74 Cal.Rptr.2d 843, 955 P.2d
469], internal citations omitted.)
• “In analyzing the element of newsworthiness, appellate decisions ‘balance[] the
public’s right to know against the plaintiff’s privacy interest by drawing a
protective line at the point the material revealed ceases to have any substantial
connection to the subject matter of the newsworthy report.’ ” (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1257 [217 Cal.Rptr.3d 234].)
• “ ‘[N]ewsworthiness is not limited to “news” in the narrow sense of reports of
current events. “It extends also to the use of names, likenesses or facts in giving
information to the public for purposes of education, amusement or
1077
just as widely disclosed—if not more so—through oral media as through written
ones. To allow a plaintiff redress for one kind of disclosure but not the other,
when both can be equally damaging to privacy, is a rule better suited to an era
when the town crier was the principal purveyor of news. It is long past time to
discard this outmoded rule.” (Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th
808, 819 [154 Cal.Rptr.3d 275], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 772–775
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.03 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.32 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.20 (Matthew Bender)
1 California Civil Practice: Torts §§ 20:1–20:2 (Thomson Reuters)
1079
New September 2003; Revised November 2017, May 2018, November 2018
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing.
False light claims are subject to the same constitutional protections that apply to
defamation claims. (Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d 529, 543 [93
Cal.Rptr. 866, 483 P.2d 34], overruled on other grounds in Gates v. Discovery
Communications, Inc. (2004) 34 Cal.4th 679, 696, fn. 9 [21 Cal.Rptr.3d 663, 101
P.3d 552] [false light claim should meet the same requirements of a libel claim,
including proof of malice when required].) Thus, a knowing violation of or reckless
disregard for the plaintiff’s rights is required if the plaintiff is a public figure. (See
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 721–722 [257 Cal.Rptr.
1080
708, 771 P.2d 406].) Give the first option for element 3 if the disclosure involves a
public figure. Give the second option for a private citizen, at least with regard to a
matter of private concern. (See id. at p. 742 [private person need prove only
negligence rather than malice to recover for defamation].)
There is perhaps some question as to which option for element 3 to give for a
private person if the matter is one of public concern. For defamation, a private
figure plaintiff must prove malice to recover presumed and punitive damages for a
matter of public concern, but not to recover for damages to reputation. (Khawar v.
Globe Internat. (1998) 19 Cal.4th 254, 273–274 [79 Cal.Rptr.2d 178, 965 P.2d
696].) No case has been found that provides for presumed damages for a false light
violation. Therefore, the court will need to decide whether proof of malice is
required from a private plaintiff even though the matter may be one of public
concern.
If the jury will also be instructed on defamation, an instruction on false light would
be superfluous and therefore need not be given. (See Eisenberg v. Alameda
Newspapers (1999) 74 Cal.App.4th 1359, 1385, fn. 13 [88 Cal.Rptr.2d 802]; see
also Briscoe, supra, 4 Cal.3d at p. 543.) For defamation, utterance of a defamatory
statement to a single third person constitutes sufficient publication. (Cunningham v.
Simpson (1969) 1 Cal.3d 301, 307 [81 Cal.Rptr. 855, 461 P.2d 39]; but see Warfield
v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 660 [262 Cal.Rptr.
890] [false light case holding that “account” published in defendant’s membership
newsletter does not meet threshold allegation of a general public disclosure].)
Sources and Authority
• “ ‘False light is a species of invasion of privacy, based on publicity that places
a plaintiff before the public in a false light that would be highly offensive to a
reasonable person, and where the defendant knew or acted in reckless disregard
as to the falsity of the publicized matter and the false light in which the plaintiff
would be placed.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264
[217 Cal.Rptr.3d 234].)
• “A ‘false light’ claim, like libel, exposes a person to hatred, contempt, ridicule,
or obloquy and assumes the audience will recognize it as such.” (De Havilland
v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 865 [230 Cal.Rptr.3d 625].)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633],
internal citation omitted.)
• “In order to be actionable, the false light in which the plaintiff is placed must
be highly offensive to a reasonable person. Although it is not necessary that the
plaintiff be defamed, publicity placing one in a highly offensive false light will
in most cases be defamatory as well.” (Fellows v. National Enquirer (1986) 42
Cal.3d 234, 238–239 [228 Cal.Rptr. 215, 721 P.2d 97], internal citation
omitted.)
• “When a false light claim is coupled with a defamation claim, the false light
1081
• “[T]he constitutional protections for speech and press preclude the application
of the New York statute to redress false reports of matters of public interest in
the absence of proof that the defendant published the report with knowledge of
its falsity or in reckless disregard of the truth.” (Time, Inc. v. Hill (1967) 385
U.S. 374, 387–388 [87 S.Ct. 534, 17 L.Ed.2d 456].)
• “We hold that whenever a claim for false light invasion of privacy is based on
language that is defamatory within the meaning of section 45a, pleading and
proof of special damages are required.” (Fellows, supra, 42 Cal.3d at p. 251.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 781–783
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.04 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.33 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.21 (Matthew Bender)
1 California Civil Practice: Torts §§ 20:12–20:15 (Thomson Reuters)
1083
1086
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name
and likeness are protected under both the common law and under Civil Code
section 3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both
this instruction and CACI No. 1803, Appropriation of Name or Likeness, which
sets forth the common-law cause of action, will normally be given.
Different standards apply if the use is in connection with a news, public affairs, or
sports broadcast or account, or with a political campaign. (See Civ. Code,
§ 3344(d); Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198
Cal.Rptr. 342].) The plaintiff bears the burden of proving the nonapplicability of
these exceptions. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th
400, 416–417 [114 Cal.Rptr.2d 307].) Element 2 may be omitted if there is no
question of fact with regard to this issue. See CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign, for an instruction to use if one of the exceptions
of Civil Code section 3344(d) applies.
1087
If plaintiff alleges that the use was not covered by Civil Code section 3344(d) (e.g.,
not a “news” account) but that even if it were covered it is not protected under the
standards of Eastwood, then both this instruction and CACI No. 1804B should be
given in the alternative. In that case, it should be made clear to the jury that if the
plaintiff fails to prove the inapplicability of Civil Code section 3344(d) as set forth
in element 2, the claim is still viable if the plaintiff proves all the elements of
CACI No. 1804B.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section
3344(a) even if actual damages are not proven. (See Miller v. Collectors Universe,
Inc. (2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “Civil Code section 3344 provides a statutory cause of action for commercial
misappropriation that complements, rather than codifies, the common law
misappropriation cause of action.” (Local TV, LLC v. Superior Court (2016) 3
Cal.App.5th 1, 13 [206 Cal.Rptr.3d 884].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters v. Matthews (2000)78 Cal.App.4th 362, 367 [92 Cal.Rptr.2d 713].)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s
name or likeness to defendant’s advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy,
a plaintiff must present evidence of ‘all the elements of the common law cause
of action’ and must also prove ‘a knowing use by the defendant as well as a
direct connection between the alleged use and the commercial purpose.’ ”
(Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135
Cal.Rptr.3d 200], internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are
cumulative and in addition to any provided for by law.” (Eastwood, supra, 149
Cal.App.3d at p. 417, fn. 6, internal citation omitted.)
• “[B]oth the statutory and common law versions of a right of publicity claim
require that the defendant actually use the plaintiff’s likeness . . . .” (Cross v.
Facebook, Inc. (2017) 14 Cal.App.5th 190, 210 [222 Cal.Rptr.3d 250].)
• “Plaintiffs assert that Civil Code section 3344’s ‘commercial use’ requirement
does not need to ‘involve some form of advertising or endorsement.’ This is
1088
simply incorrect, as Civil Code section 3344, subdivision (a) explicitly provides
for possible liability on ‘[a]ny person who knowingly uses another’s name,
voice, signature, photograph, or likeness, in any manner . . . for purposes of
advertising . . . without such person’s prior consent.’ The statute requires some
‘use’ by the advertiser aimed at obtaining a commercial advantage for the
advertiser.” (Cross, supra, 14 Cal.App.5th at p. 210.)
• “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies,
in general, to a cause of action for unauthorized commercial use of likeness.”
(Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798,
213 P.3d 132].)
• “Any facts which tend to disprove one of the allegations raised in a complaint
may be offered in the defendant’s answer based upon a general denial and need
not be raised by affirmative defense. . . . Throughout this litigation plaintiffs
have borne the burden of establishing that their names and likenesses were used
in violation of section 3344, and this burden has always required proof that the
disputed uses fell outside the exemptions granted by subdivision (d).”
(Gionfriddo, supra, 94 Cal.App.4th at pp. 416–417, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 681–683
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-K, Invasion
Of Privacy, ¶¶ 5:710–5:891 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35–429.36
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§§ 184.22–184.24 (Matthew Bender)
1 California Civil Practice: Torts § 20:17 (Thomson Reuters)
1089
Derived from former CACI No. 1804 April 2008; Revised April 2009
Directions for Use
Give this instruction if the plaintiff’s name or likeness has been used in connection
with a news, public affairs, or sports broadcast or account, or with a political
campaign. In this situation, consent is not required. (Civ. Code, § 3344(d).)
However, in Eastwood v. Superior Court, the court held that the constitutional
standards under defamation law apply under section 3344(d) and that the statute as
it applies to news does not provide protection for a knowing or reckless falsehood.
(Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198 Cal.Rptr.
342].) Under defamation law, this standard applies only to public figures, and
private individuals may sue for negligent publication of defamatory falsehoods. (Id.
1090
at p. 424.) Presumably, the same distinction between public figures and private
individuals would apply under Civil Code section 3344(d). Element 4 provides for
the standards established and suggested by Eastwood.
Give CACI No. 1804A, Use of Name or Likeness, if there is no issue whether one
of the exceptions of Civil Code section 3344(d) applies. If plaintiff alleges that the
use was not covered by subdivision (d) (e.g., not a “news” account) but that even if
it were covered it is not protected under the standards of Eastwood, then both this
instruction and CACI No. 1804A should be given in the alternative. In that case, it
should be made clear to the jury that if the plaintiff fails to prove the
inapplicability of Civil Code section 3344(d) as set forth element 2 of CACI No.
1804A, the claim is still viable if the plaintiff proves all the elements of this
instruction.
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing. One’s name
and likeness are protected under both the common law and under Civil Code
section 3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both
this instruction and CACI No. 1803, Appropriation of Name or Likeness, which
sets forth the common-law cause of action, will normally be given.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section
3344(a) even if actual damages are not proven. (See Miller v. Collectors Universe,
Inc. (2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060
misappropriations of plaintiff’s name under section 3344(a) constitutes single cause
of action for which statutory damages are $750].)
Even though consent is not required, it may be an affirmative defense. CACI No.
1721, Affırmative Defense—Consent (to defamation), may be used in this situation.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• Civil Code section 3344 is “a commercial appropriation statute which
complements the common law tort of appropriation.” (KNB Enters. v. Matthews
(2000) 78 Cal.App.4th 362, 366–367 [92 Cal.Rptr.2d 713].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters., supra, 78 Cal.App.4th at p. 367.)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s
name or likeness to defendant’s advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy,
a plaintiff must present evidence of ‘all the elements of the common law cause
of action’ and must also prove ‘a knowing use by the defendant as well as a
direct connection between the alleged use and the commercial purpose.’ ”
1091
(Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135
Cal.Rptr.3d 200], internal citations omitted.)
• “The differences between the common law and statutory actions are: (1) Section
3344, subdivision (a) requires a knowing use whereas under case law, mistake
and inadvertence are not a defense against commercial appropriation; and (2)
Section 3344, subdivision (g) expressly provides that its remedies are
cumulative and in addition to any provided for by law.” (Eastwood, supra, 149
Cal.App.3d at p. 417, fn. 6, internal citation omitted.)
• “The spacious interest in an unfettered press is not without limitation. This
privilege is subject to the qualification that it shall not be so exercised as to
abuse the rights of individuals. Hence, in defamation cases, the concern is with
defamatory lies masquerading as truth. Similarly, in privacy cases, the concern
is with nondefamatory lies masquerading as truth. Accordingly, we do not
believe that the Legislature intended to provide an exemption from liability for
a knowing or reckless falsehood under the canopy of ‘news.’ We therefore hold
that Civil Code section 3344, subdivision (d), as it pertains to news, does not
provide an exemption for a knowing or reckless falsehood.” (Eastwood, supra,
149 Cal.App.3d at p. 426, internal citations omitted.)
• The burden of proof as to knowing or reckless falsehood under Civil Code
section 3344(d) is on the plaintiff. (See Eastwood, supra, 149 Cal.App.3d at p.
426.)
• “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies,
in general, to a cause of action for unauthorized commercial use of likeness.”
(Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798,
213 P.3d 132].)
• “Any facts which tend to disprove one of the allegations raised in a complaint
may be offered in the defendant’s answer based upon a general denial and need
not be raised by affirmative defense. . . . Throughout this litigation plaintiffs
have borne the burden of establishing that their names and likenesses were used
in violation of section 3344, and this burden has always required proof that the
disputed uses fell outside the exemptions granted by subdivision (d).”
(Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 416–417
[114 Cal.Rptr.2d 307], internal citation omitted.)
• “We presume that the Legislature intended that the category of public affairs
would include things that would not necessarily be considered news. Otherwise,
the appearance of one of those terms in the subsection would be superfluous, a
reading we are not entitled to give to the statute. We also presume that the term
‘public affairs’ was intended to mean something less important than news.
Public affairs must be related to real-life occurrences.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 546 [18 Cal.Rptr.2d 790], internal citations
omitted.)
• “[N]o cause of action will lie for the ‘publication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
1092
press to tell it.’ ” (Montana v. San Jose Mercury News (1995) 34 Cal.App.4th
790, 793 [40 Cal.Rptr.2d 639], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 681–683
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-K, Invasion
Of Privacy, ¶¶ 5:710–5:891 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.35 (Matthew Bender)
1 California Civil Practice: Torts § 20:17 (Thomson Reuters)
1093
(2003) 30 Cal.4th 881, 891–892 [134 Cal.Rptr.2d 634, 69 P.3d 473], internal
citation omitted.)
• “[T]he First Amendment . . . safeguards the storytellers and artists who take
the raw materials of life—including the stories of real individuals, ordinary or
extraordinary—and transform them into art, be it articles, books, movies, or
plays.” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 860
[230 Cal.Rptr.3d 625].)
• “Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th
at p. 400.)
• “Furthermore, in determining whether a work is sufficiently transformative,
courts may find useful a subsidiary inquiry, particularly in close cases: does the
marketability and economic value of the challenged work derive primarily from
the fame of the celebrity depicted? If this question is answered in the negative,
then there would generally be no actionable right of publicity. When the value
of the work comes principally from some source other than the fame of the
celebrity—from the creativity, skill, and reputation of the artist—it may be
presumed that sufficient transformative elements are present to warrant First
Amendment protection. If the question is answered in the affirmative, however,
it does not necessarily follow that the work is without First Amendment
protection—it may still be a transformative work.” (Comedy III Productions,
Inc., supra, 25 Cal.4th at p. 407.)
• “As the Supreme Court has stated, the central purpose of the inquiry into this
fair use factor ‘is to see . . . whether the new work merely “supersede[s] the
objects” of the original creation, or instead adds something new, with a further
purpose or different character, altering the first with new expression, meaning,
or message; it asks, in other words, whether and to what extent the new work is
“transformative.” ’ ” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 404,
internal citations omitted.)
• “We emphasize that the transformative elements or creative contributions that
require First Amendment protection are not confined to parody and can take
many forms, from factual reporting to fictionalized portrayal, from heavy-
handed lampooning to subtle social criticism.” (Comedy III Productions, Inc.,
supra, 25 Cal.4th at p. 406.)
• “[Defendant] contends the plaintiffs’ claims are barred by the transformative use
defense formulated by the California Supreme Court in Comedy III . . . . ‘The
defense is “a balancing test between the First Amendment and the right of
publicity based on whether the work in question adds significant creative
elements so as to be transformed into something more than a mere celebrity
likeness or imitation.” ’ ” (Davis v. Elec. Arts, Inc. (9th Cir. 2015) 775 F.3d
1172, 1177, internal citation omitted.)
1095
• “Simply stated, the transformative test looks at ‘whether the celebrity likeness is
one of the “raw materials” from which an original work is synthesized, or
whether the depiction or imitation of the celebrity is the very sum and
substance of the work in question. We ask, in other words, whether a product
containing a celebrity’s likeness is so transformed that it has become primarily
the defendant’s own expression rather than the celebrity’s likeness.’ This
transformative test is the court’s primary inquiry when resolving a conflict
between the right of publicity and the First Amendment.” (Ross v. Roberts
(2013) 222 Cal.App.4th 677, 686 [166 Cal.Rptr.3d 359], internal citations
omitted.)
• “Comedy III’s ‘transformative’ test makes sense when applied to products and
merchandise—‘tangible personal property,’ in the Supreme Court’s words.
Lower courts have struggled mightily, however, to figure out how to apply it to
expressive works such as films, plays, and television programs.” (De Havilland,
supra, 21 Cal.App.5th at p. 863, internal citation omitted.)
• “The First Amendment defense does not apply only to visual expressions,
however. ‘The protections may extend to all forms of expression, including
written and spoken words (fact or fiction), music, films, paintings, and
entertainment, whether or not sold for a profit.’ ” (Ross, supra, 222 Cal.App.4th
at p. 687.)
• “The distinction between parody and other forms of literary expression is
irrelevant to the Comedy III transformative test. It does not matter what precise
literary category the work falls into. What matters is whether the work is
transformative, not whether it is parody or satire or caricature or serious social
commentary or any other specific form of expression.” (Winter, supra, 30
Cal.4th at p. 891.)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, § 788
Wiseman & Reese, California Practice Guide: Civil Procedure Before Trial Claims
& Defenses, Ch. 4(VII)-C, Harm to Reputation and Privacy Interests, ¶ 4:1385
(The Rutter Group)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.38 (Matthew Bender)
1096
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ ” (Montana v. San Jose Mercury News, Inc. (1995) 34
Cal.App.4th 790, 793 [40 Cal.Rptr.2d 639], internal citation omitted.)
• “The sense of an ever-increasing pressure on personal privacy notwithstanding,
it has long been apparent that the desire for privacy must at many points give
way before our right to know, and the news media’s right to investigate and
relate, facts about the events and individuals of our time.” (Shulman, supra, 18
Cal.4th at p. 208.)
• “The difficulty in defining the boundaries of the right, as applied in the
publication field, is inherent in the necessity of balancing the public interest in
the dissemination of news, information and education against the individuals’
interest in peace of mind and freedom from emotional disturbances. When
words relating to or actual pictures of a person or his name are published, the
circumstances may indicate that public interest is predominant. Factors
deserving consideration may include the medium of publication, the extent of
the use, the public interest served by the publication, and the seriousness of the
interference with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38
Cal.2d 273, 278–279 [239 P.2d 630].)
• “[T]he common law right does not provide relief for every publication of a
person’s name or likeness. The First Amendment requires that the right to be
protected from unauthorized publicity ‘be balanced against the public interest in
the dissemination of news and information consistent with the democratic
processes under the constitutional guaranties of freedom of speech and of the
press.’ ” (Gionfriddo, supra, 94 Cal.App.4th at pp. 409–410, internal citations
and footnote omitted.)
• “Public interest attaches to people who by their accomplishments or mode of
living create a bona fide attention to their activities.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation
omitted.)
• “Although surprisingly few courts have considered in any depth the means of
reconciling the right of publicity and the First Amendment, we follow those that
have in concluding that depictions of celebrities amounting to little more than
the appropriation of the celebrity’s economic value are not protected expression
under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th
at p. 400.)
• “The First Amendment defense does not apply only to visual expressions,
however. ‘The protections may extend to all forms of expression, including
written and spoken words (fact or fiction), music, films, paintings, and
entertainment, whether or not sold for a profit.’ ” (Ross v. Roberts (2013) 222
Cal.App.4th 677, 687 [166 Cal.Rptr.3d 359].)
• “Producers of films and television programs may enter into agreements with
individuals portrayed in those works for a variety of reasons, including access
to the person’s recollections or ‘story’ the producers would not otherwise have,
1098
or a desire to avoid litigation for a reasonable fee. But the First Amendment
simply does not require such acquisition agreements.” (De Havilland v. FX
Networks, LLC (2018) 21 Cal.App.5th 845, 861 [230 Cal.Rptr.3d 625].)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, § 681 et seq.
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.35 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.27 (Matthew Bender)
1099
[Name of defendant] claims that even if [name of plaintiff] has proven all
of the above, [his/her/its] conduct was justified. [Name of defendant] must
prove that the circumstances justified the invasion of privacy because
the invasion of privacy substantially furthered [insert relevant legitimate
or compelling competing interest].
If [name of defendant] proves that [his/her/its] conduct was justified, then
you must find for [name of defendant] unless [name of plaintiff] proves
that there was a practical, effective, and less invasive method of
achieving [name of defendant]’s purpose.
Inc. (2009) 47 Cal.4th 272, 288 [97 Cal.Rptr.3d 274, 211 P.3d 1063], internal
citations omitted.)
• Note that whether the countervailing interest needs to be “compelling” or
“legitimate” depends on the status of the defendant. “In general, where the
privacy violation is alleged against a private entity, the defendant is not required
to establish a ‘compelling interest’ but, rather, one that is ‘legitimate’ or
‘important.’ ” (Pettus v. Cole (1996) 49 Cal.App.4th 402, 440 [57 Cal.Rptr.2d
46].)
Secondary Sources
7 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 575–603
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.06 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.16 (Matthew
Bender)
18 California Points and Authorities, Ch. 183, Privacy: State Constitutional Rights,
§ 183.20 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 20:18–20:20
1101
1102
by the other party, a substantial distinction has been recognized between the
secondhand repetition of the contents of a conversation and its simultaneous
dissemination to an unannounced second auditor, whether that auditor be a
person or a mechanical device.” (Ribas v. Clark (1985) 38 Cal.3d 355, 360–361
[212 Cal.Rptr. 143, 696 P.2d 637].)
• “We hold that an actionable violation of section 632 does not require disclosure
of a confidential communication to a third party.” (Friddle v. Epstein (1993) 16
Cal.App.4th 1649, 1660 [21 Cal.Rptr.2d 85].)
• “The right to recover [the] statutory minimum accrue[s] at the moment the
privacy act [is] violated.” (Friddle, supra, 16 Cal.App.4th at p. 1661.)
• “If the plaintiff has suffered injuries akin to those for emotional distress, ‘i.e.,
anxiety, embarrassment, humiliation, shame, depression, feelings of
powerlessness, anguish, etc.,’ these are ‘actual’ damages which shall be trebled.”
(Friddle, supra, 16 Cal.App.4th at p. 1660.)
• “Because the right to [the statutory] award accrues at the moment of the
violation, it is not barred by the judicial privilege. . . . Section 637.2 therefore
permits him to pursue his statutory remedy of a civil lawsuit for $3,000, even
though the judicial privilege bars his recovery for the only actual damage he
claims to have suffered.” (Ribas, supra, 38 Cal.3d at p. 365.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 660, 661, 666
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.07[8] (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.283
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.25A (Matthew Bender)
1104
1106
One who has established a cause of action for invasion of his privacy is
entitled to recover damages for
(a) the harm to his interest in privacy resulting from the invasion;
(b) his mental distress proved to have been suffered if it is of a kind
that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
Note that this Restatement section has not been cited by any published
California cases.
• “Damages recoverable in California for invasion of a privacy right were
discussed in detail in Fairfield v. American Photocopy Equipment Co. The Court
of Appeal declared that because the interest involved privacy, the damages
flowing from its invasion logically would include an award for mental suffering
and anguish. Fairfield was an appropriation case, but the principles it laid down
concerning damage awards in privacy cases relied on a body of California law
which had already recognized violation of the right of privacy as a tort.” (Miller
v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1484 [232 Cal.Rptr.
668], internal citation omitted.)
• “The elements of emotional distress damages, i.e., anxiety, embarrassment,
humiliation, shame, depression, feelings of powerlessness, anguish, etc., would
thus be subjects of legitimate inquiry by a jury in the action before us, taking
into account all of the consequences and events which flowed from the
actionable wrong.” (Miller, supra, 187 Cal.App.3d at p. 1485.)
• “The actual injury involved herein is not limited to out-of-pocket loss. It
generally includes ‘impairment of reputation and standing in the community,
personal humiliation, and mental anguish and suffering.’ ” (Diaz, supra, 139
Cal.App.3d at p. 137, internal citation omitted.)
• In Time, Inc. v. Hill (1967) 385 U.S. 374, 384, fn. 9 [87 S.Ct. 534, 17 L.Ed.2d
456], the court stated: “In the ‘right of privacy’ cases the primary damage is the
mental distress from having been exposed to public view, although injury to
reputation may be an element bearing upon such damage.”
• “There is a distinction between causes of action for invasion of privacy and
defamation with regard to the respective interests protected and compensated by
each. ‘The gist of a cause of action in a privacy case is not injury to the
character or reputation but a direct wrong of a personal character resulting in
injury to the feelings without regard to any effect which the publication may
have on the property, business, pecuniary interest, or the standing of the
individual in the community. The right of privacy concerns one’s own peace of
mind, while the right of freedom from defamation concerns primarily one’s
reputation. The injury is mental and subjective.’ ” (Selleck v. Globe Int’l, Inc.
(1985) 166 Cal.App.3d 1123, 1135 [212 Cal.Rptr. 838], internal citations
omitted.)
• “California recognizes the right to profit from the commercial value of one’s
1108
1109
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you also must decide how much money will
reasonably compensate [name of plaintiff] for the harm. This
compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages. [Name of
plaintiff] does not have to prove the exact amount of damages that will
provide reasonable compensation for the harm. However, you must not
speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. [Humiliation, embarrassment, and mental distress, including any
physical symptons;]
2. [Harm to [name of plaintiff]’s reputation;] [and]
3. [Insert other item(s) of claimed harm].
In addition, [name of plaintiff] may recover any profits that [name of
defendant] received from the use of [name of plaintiff]’s
[name/voice/signature/photograph/likeness] [that have not already been
taken into account with regard to the above damages]. To establish the
amount of these profits you must:
1. Determine the gross, or total, revenue that [name of defendant]
received from the use;
2. Determine the expenses that [name of defendant] had in obtaining
the gross revenue; and
3. Deduct [name of defendant]’s expenses from the gross revenue.
[Name of plaintiff] must prove the amount of gross revenue, and [name of
defendant] must prove the amount of expenses.
The plaintiff might claim that he or she would have earned the same profits that
the defendant wrongfully earned. In such a case, to avoid a double recovery, the
advisory committee recommends computing damages to recover the defendant’s
wrongful profits separately from actual damages, that is, under the second part of
the instruction and not under actual damages item 3 (“other item(s) of claimed
harm”). See also CACI No. VF-1804, Privacy—Use of Name or Likeness. Give the
bracketed phrase in the paragraph that introduces the second part of the instruction
if the plaintiff alleges lost profits that are different from the defendant’s wrongful
profits and that are claimed under actual damages item 3.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
• “[Plaintiff] alleges, and submits evidence to show, that he was injured
economically because the ad will make it difficult for him to endorse other
automobiles, and emotionally because people may be led to believe he has
abandoned his current name and assume he has renounced his religion. These
allegations suffice to support his action. Injury to a plaintiff’s right of publicity
is not limited to present or future economic loss, but ‘may induce humiliation,
embarrassment, and mental distress.’ ” (Abdul-Jabbar v. General Motors Corp.
(9th Cir. 1996) 85 F.3d 407, 416, internal citation omitted.)
• “We can conceive no rational basis for the Legislature to limit the $750 as an
alternative to all other damages, including profits. If someone profits from the
unauthorized use of another’s name, it makes little sense to preclude the injured
party from recouping those profits because he or she is entitled to statutory
damages as opposed to actual damages. Similar reasoning appears to be
reflected in the civil jury instructions for damages under section 3344, which
provides: ‘If [name of plaintiff] has not proved the above damages, or has
proved an amount of damages less than $750, then you must award [him/her]
$750. [¶] In addition, [name of plaintiff] may recover any profits that [name of
defendant] received from the use of [name of plaintiff]’s [name . . . ] [that
have not already been taken into account in computing the above damages].’
(CACI No. 1821, italics omitted.).” (Orthopedic Systems, Inc., supra, 202
Cal.App.4th at p. 546.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1548–1556
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-K, Invasion
Of Privacy, ¶¶ 5:710–5:891 (The Rutter Group)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.13 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
1111
1112
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1800, Intrusion Into Private Affairs.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1114
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1801, Public Disclosure of Private Facts.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
1116
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1117
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1802, False Light.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the conduct does not involve a matter of public concern, then substitute the
following for question number 3: “Was [name of defendant] negligent in
determining the truth of the information or whether a false impression would be
created by its publication?” If the conduct involved material that is not defamatory
on its face, the following question should be added to this form: “Did [name of
plaintiff] sustain harm to [his/her] property, business, profession, or occupation
[including money spent as a result of the statements(s)]?”
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
1119
1120
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016,
November 2017
Directions for Use
This verdict form is based on CACI No. 1803, Appropriation of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
1122
findings that are required in order to calculate the amount of prejudgment interest.
1123
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [humiliation/embarrassment/
mental distress including any physical symptoms:] $ ]
[d. Future noneconomic loss, including
[humiliation/embarrassment/mental distress including any
physical symptomns:] $ ]
[d. TOTAL ACTUAL DAMAGES $
[7. Did [name of defendant] receive any profits from the use of [name
of plaintiff]’s [name/voice/signature/photograph/likeness] that you
did not include under [name of plaintiff]’s actual damages for lost
profits in Question 6 above?
[7. Yes No
[7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What amount of those profits did [name of defendant] receive
from the use of [name of plaintiff]’s
[name/voice/signature/photograph/likeness]?
8. TOTAL PROFITS RECEIVED BY DEFENDANT $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1125
New September 2003; Revised April 2007, April 2008, December 2010, June 2012,
December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 1804A, Use of Name or Likeness, and
CACI No. 1821, Damages for Use of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under Civil Code section 3344(a), the plaintiff may recover actual damages or
$750, whichever is greater. The plaintiff may also recover any profits that the
defendant received from the unauthorized use that were not taken into account in
calculating actual damages. (Orthopedic Systems Inc. v. Schlein (2011) 202
Cal.App.4th 529, 547 [135 Cal.Rptr.3d 200].) The advisory committee recommends
calculating the defendant’s profits to be disgorged separately from actual damages.
Questions 5 through 8 take the jury through the recommended course. If no actual
damages are sought, question 5 may be omitted and the jury instructed to enter
$750 as the total actual damages in question 6. If the jury awards actual damages
of less than $750, the court should raise the amount to $750. If there is no claim to
disgorge the defendant’s wrongful profits, questions 7 and 8 may be omitted.
Additional questions may be necessary if the facts implicate Civil Code section
3344(d) (see Directions for Use under CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign).
If specificity is not required, users do not have to itemize all the actual damages
listed in question 6 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1805–VF-1806. Reserved for Future Use
1126
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 1809, Recording of Confidential
Information.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 4 and 5 do not have to be read if the plaintiff is seeking the statutory
penalty only.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
1128
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1808–VF-1899. Reserved for Future Use
1129
1131
• “The elements of fraud that will give rise to a tort action for deceit are: “ ‘(a)
misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce
reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [64 Cal.Rptr.2d
843, 938 P.2d 903], internal quotation marks omitted.)
• “A complaint for fraud must allege the following elements: (1) a knowingly
false representation by the defendant; (2) an intent to deceive or induce
reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.”
(Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [52
Cal.Rptr.2d 650] [combining misrepresentation and scienter as a single
element].)
• “Puffing,” or sales talk, is generally considered opinion, unless it involves a
representation of product safety. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 112
[120 Cal.Rptr. 681, 534 P.2d 377].)
• “Fraud is an intentional tort; it is the element of fraudulent intent, or intent to
deceive, that distinguishes it from actionable negligent misrepresentation and
from nonactionable innocent misrepresentation. It is the element of intent which
makes fraud actionable, irrespective of any contractual or fiduciary duty one
party might owe to the other.” (City of Atascadero v. Merrill Lynch, Pierce,
Fenner & Smith (1998) 68 Cal.App.4th 445, 482 [80 Cal.Rptr.2d 329], internal
citations omitted.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]he trial court failed to consider that a cause of action based in fraud may
arise from conduct that is designed to mislead, and not only from verbal or
written statements.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California
(2016) 245 Cal.App.4th 821, 839 [199 Cal.Rptr.3d 901].)
• “[A] cause of action for misrepresentation requires an affirmative statement, not
an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th
1089, 1102 [223 Cal.Rptr.3d 458].)
• “ ‘[F]alse representations made recklessly and without regard for their truth in
order to induce action by another are the equivalent of misrepresentations
knowingly and intentionally uttered.’ ” (Engalla, supra, 15 Cal.4th at p. 974,
quoting Yellow Creek Logging Corp. v. Dare (1963) 216 Cal.App.2d 50, 55 [30
Cal.Rptr. 629].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “A ‘complete causal relationship’ between the fraud or deceit and the plaintiff’s
1133
1134
New September 2003; Revised October 2004, December 2012, June 2014, June
2015
Directions for Use
Give this instruction if it is alleged that the defendant concealed certain information
to the detriment of the plaintiff. (See Civ. Code, § 1710(3).) Element 2 may be
deleted if the third option for element 1 is selected.
Regarding element 1, before there can be liability for concealment, there must
1135
likely to mislead; (2) the facts are known or accessible only to defendant, and
defendant knows they are not known to or reasonably discoverable by the
plaintiff; (3) the defendant actively conceals discovery from the plaintiff.”
(Warner Construction Corp., supra, 2 Cal.3d at p. 294, footnotes omitted.)
• “[O]ther than the first instance, in which there must be a fiduciary relationship
between the parties, ‘the other three circumstances in which nondisclosure may
be actionable: presuppose[] the existence of some other relationship between the
plaintiff and defendant in which a duty to disclose can arise. . . . “[W]here
material facts are known to one party and not to the other, failure to disclose
them is not actionable fraud unless there is some relationship between the
parties which gives rise to a duty to disclose such known facts.” [Citation.]’ A
relationship between the parties is present if there is ‘some sort of transaction
between the parties. [Citations.] Thus, a duty to disclose may arise from the
relationship between seller and buyer, employer and prospective employee,
doctor and patient, or parties entering into any kind of contractual agreement.’ ”
(Hoffman, supra, 228 Cal.App.4th at p. 1187, original italics, internal citations
omitted.)
• “Even if a fiduciary relationship is not involved, a non-disclosure claim arises
when the defendant makes representations but fails to disclose additional facts
which materially qualify the facts disclosed, or which render the disclosure
likely to mislead.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634,
666 [51 Cal.Rptr.2d 907], internal citations omitted.)
• “ ‘[T]he rule has long been settled in this state that although one may be under
no duty to speak as to a matter, “if he undertakes to do so, either voluntarily or
in response to inquiries, he is bound not only to state truly what he tells but
also not to suppress or conceal any facts within his knowledge which materially
qualify those stated. If he speaks at all he must make a full and fair
disclosure.” ’ ” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6
Cal.App.4th 603, 613 [7 Cal.Rptr.2d 859].)
• “While a reasonable jury could, and in this case did, find these warnings
inadequate for product liability purposes given [defendant]’s knowledge of the
risk of NFCI’s, these statements are not ‘misleading “half-truths” ’ that give rise
to a duty to disclose in the absence of an otherwise sufficient relationship or
transaction. To hold otherwise would unduly conflate two distinct areas of law,
products liability and fraud, and transform every instance of inadequate product
warning into a potential claim for fraud.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 313-314 [213 Cal.Rptr.3d 82].)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
1137
1138
i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”
[Citations.]’ Each element must be alleged with particularity.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1059–1060 [141 Cal.Rptr.3d 142], internal
citations omitted.)
• “A promise of future conduct is actionable as fraud only if made without a
present intent to perform. ‘A declaration of intention, although in the nature of a
promise, made in good faith, without intention to deceive, and in the honest
expectation that it will be fulfilled, even though it is not carried out, does not
constitute a fraud.’ Moreover, ‘ “something more than nonperformance is
required to prove the defendant’s intent not to perform his promise.” . . . [I]f
plaintiff adduces no further evidence of fraudulent intent than proof of
nonperformance of an oral promise, he will never reach a jury.’ ” (Magpali v.
Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [55 Cal.Rptr.2d 225],
internal citations omitted.)
• “[I]n a promissory fraud action, to sufficiently allege[] defendant made a
misrepresentation, the complaint must allege (1) the defendant made a
representation of intent to perform some future action, i.e., the defendant made
a promise, and (2) the defendant did not really have that intent at the time that
the promise was made, i.e., the promise was false.” (Beckwith, supra, 205
Cal.App.4th at p. 1060.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith, supra,
205 Cal.App.4th at p. 1061.)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “An action for promissory fraud may lie where a defendant fraudulently induces
the plaintiff to enter into a [written] contract. [Citations.] In such cases, the
plaintiff’s claim does not depend upon whether the defendant’s promise is
ultimately enforceable as a contract.” (Austin v. Medicis (2018) 21 Cal.App.5th
577, 588 [230 Cal.Rptr.3d 528].)
Secondary Sources
9 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 899–904
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][a] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.12
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.30 et seq.
(Matthew Bender)
2 California Civil Practice: Torts § 22:20 (Thomson Reuters)
1140
transaction. [However,] [i]f others become aware of the representation and act
upon it, there is no liability even though defendant should reasonably have
foreseen such a possibility.’ ” (Public Employees’ Retirement System v. Moody’s
Investors Service, Inc. (2014) 226 Cal.App.4th 643, 667−668 [172 Cal.Rptr.3d
238].)
• “[P]laintiffs rely on section 311 of the Restatement Second of Torts (section
311), which addresses negligent misrepresentation involving physical harm.
Under section 311(1), ‘[o]ne who negligently gives false information to another
is subject to liability for physical harm caused by action taken by the other in
reasonable reliance upon such information, where such harm results [¶] . . . [¶]
to such third persons as the actor should expect to be put in peril by the action
taken.’ [¶] Section 311’s theory of liability is intended to be ‘somewhat broader’
than that for mere pecuniary loss. It ‘finds particular application where it is a
part of the actor’s business or profession to give information upon which the
safety of the recipient or a third person depends.’ This court applied and
followed section 311 . . .” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4
Cal.5th 145, 162–163 [226 Cal.Rptr.3d 336, 407 P.3d 18], internal citations
omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 818–820, 823–826
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-H,
Negligent Misrepresentation, ¶ 5:781 et seq. (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-D, Negligent
Misrepresentation, ¶ 11:41 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.10 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.14
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.270 et seq.
(Matthew Bender)
2 California Civil Practice: Torts, §§ 22:13–22:15 (Thomson Reuters)
1144
implying facts which justify a belief in the truth of the opinion. [Citation.]’ ”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153
Cal.Rptr.3d 1], internal citation omitted.)
• “[W]hen one of the parties possesses, or assumes to possess, superior
knowledge or special information regarding the subject matter of the
representation, and the other party is so situated that he may reasonably rely
upon such supposed superior knowledge or special information, a representation
made by the party possessing or assuming to possess such knowledge or
information, though it might be regarded as but the expression of an opinion if
made by any other person, is not excused if it be false.” (Jolley v. Chase Home
Finance, LLC (2013) 213 Cal.App.4th 872, 892 [153 Cal.Rptr.3d 546].)
• “Since the appraisal is a value opinion performed for the benefit of the lender,
there is no representation of fact upon which a buyer may reasonably rely.”
(Graham, supra, 226 Cal.App.4th at p. 607.)
• “Whether a statement is nonactionable opinion or actionable misrepresentation
of fact is a question of fact for the jury.” (Furla v. Jon Douglas Co. (1998) 65
Cal.App.4th 1069, 1080–1081 [76 Cal.Rptr.2d 911], internal citations omitted.)
• “If defendants’ assertion of safety is merely a statement of opinion—mere
‘puffing’—they cannot be held liable for its falsity.” (Hauter v. Zogarts (1975)
14 Cal.3d 104, 111 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “The alleged false representations in the subject brochures were not statements
of ‘opinion’ or mere ‘puffing.’ They were, in essence, representations that the
DC-10 was a safe aircraft. In Hauter, [supra,] the Supreme Court held that
promises of safety are not statements of opinion—they are ‘representations of
fact.’ ” (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216
Cal.App.3d 388, 424 [264 Cal.Rptr. 779].)
• “Under certain circumstances, expressions of professional opinion are treated as
representations of fact. When a statement, although in the form of an opinion, is
‘not a casual expression of belief’ but ‘a deliberate affirmation of the matters
stated,’ it may be regarded as a positive assertion of fact. Moreover, when a
party possesses or holds itself out as possessing superior knowledge or special
information or expertise regarding the subject matter and a plaintiff is so
situated that it may reasonably rely on such supposed knowledge, information,
or expertise, the defendant’s representation may be treated as one of material
fact.” (Bily, supra, 3 Cal.4th at p. 408, internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 774–778
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][b] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.17
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.50
1146
(Matthew Bender)
2 California Civil Practice: Torts, §§ 22:21–22:28 (Thomson Reuters)
1147
1148
1150
1152
1155
1156
not intend to alter a seller’s common law duty of disclosure. The purpose of the
enactment was instead to make the required disclosures specific and clear.
(Calemine, supra, 171 Cal.App.4th at pp. 161–162.)
• “The legislation was sponsored by the California Association of Realtors to
provide a framework for formal disclosure of facts relevant to a decision to
purchase realty. The statute therefore confirms and perhaps clarifies a disclosure
obligation that existed previously at common law.” (Shapiro, supra, 64
Cal.App.4th at p. 1539, fn. 6.)
Secondary Sources
1 California Real Estate Law and Practice, Ch. 71, Real Property Purchase and
Sale Agreements, § 71.30 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
Bender)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser of
Real Property, § 569.11 (Matthew Bender)
2A California Points and Authorities, Ch. 31, Brokers and Salesperson, § 31.142
(Matthew Bender)
Greenwald et al., California Practice Guide: Real Property Transactions (The Rutter
Group) ¶ 4:351 et seq.
1911–1919. Reserved for Future Use
1158
1160
[Name of plaintiff] may recover damages for profits [or other gains] [he/
she/it] would have made if the property had been as represented. [Name
of plaintiff] can recover these profits [or other gains] only if [he/she/it]
has proved all of the following:
1. That [name of plaintiff] acquired the property for the purpose of
using or reselling it for a [profit/gain];
2. That [name of plaintiff] reasonably relied on [name of defendant]’s
[false representation/failure to disclose/promise] in entering into
the transaction and in anticipating [profits/gains] from the use or
sale of the property; and
3. That [name of defendant]’s [false representation/failure to
disclose/promise] and [name of plaintiff]’s reliance on it were both
substantial factors in causing the lost profits.
You do not have to calculate the amount of the lost profits with
mathematical precision, but there must be a reasonable basis for
computing the loss.
specifically, lost profits proximately caused are recoverable. The cases cited, the
arguments made concerning Civil Code section 3343 limitations are simply not
relevant to post-1971 proceedings, where profits are the claimed loss. Civil
Code section 3343 as amended, in so many words, authorizes recovery of lost
profits.” (Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 247 [137
Cal.Rptr. 244].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1714–1716
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1162
not apply.” (Channell v. Anthony (1976) 58 Cal.App.3d 290, 317 [129 Cal.Rptr.
704].)
The first element of this instruction should be modified in cases involving
promissory fraud: “In cases of promissory fraud, the damages are measured by
market value as of the date the promise was breached because that is the date when
the damage occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights
Dev. Co. (1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
For an instruction on lost profits, see CACI No. 3903N, Lost Profits (Economic
Damage).
Sources and Authority
• Fraud in Sale of Property: Seller’s Damages. Civil Code section 3343.
• “As they apply to damages for fraud, subdivisions (a)(2) and (a)(3) of section
3343 are limited to recovery of damages by sellers of real property, while
subdivision (a)(4) deals with purchasers of real property.” (Channell, supra, 58
Cal.App.3d at p. 309, footnote omitted.)
• “Before 1935 the California courts had no statutory mandate on the measure of
damages for fraud. While the ‘benefit of the bargain’ measure of damages was
generally employed, on occasion California courts sometimes applied the ‘out
of pocket’ rule when the ‘loss of bargain’ rule was difficult to apply or would
work a hardship on plaintiff or defendant.” (Channell, supra, 58 Cal.App.3d at
p. 309, footnote omitted.)
• “The 1971 amendment to section 3343 took the form of an addition to the ‘out
of pocket’ rule. The statute had previously permitted recovery of ‘additional
damages,’ but the 1971 amendment enumerated specific types of consequential
damages which are included within the term ‘additional damages.’ ” (Channell,
supra, 58 Cal.App.3d at p. 312, footnote omitted.)
• “[T]he legislature clearly ruled out by the 1971 amendment any recovery of
damages for fraud measured by the traditional ‘loss of bargain’ formula.”
(Channell, supra, 58 Cal.App.3d at p. 313, footnote omitted.)
• “[O]ut of pocket” loss under section 3343 is “the difference between what
[plaintiffs] received for their property and the fair market value of the same at
the time of the transfer.” (Channell, supra, 58 Cal.App.3d at p. 314.)
• “[N]othing in section 3343 as amended . . . requires that a plaintiff show ‘out-
of-pocket’ loss (i.e., an amount by which the consideration paid exceeded the
value of the property received) in order to be entitled to any recovery for fraud
in a property transaction.” (Stout v. Turney (1978) 22 Cal.3d 718, 730 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In the absence of a fiduciary relationship, section 3343 governs the measure of
damages in fraudulent property transactions.” (Croeni v. Goldstein (1994) 21
Cal.App.4th 754, 759 [26 Cal.Rptr.2d 412].)
• “In the case of a seller . . . the defrauded victim is entitled to recover not only
1164
the difference between the actual value of that with which he parted and the
actual value of that which he received (out-of-pocket) but also any additional
damage arising from the particular transaction including any of the following: 1.
amounts expended in reliance upon the fraud; 2. amounts compensating for loss
of use and enjoyment of the property due to the fraud; and 3. an amount which
would compensate him for the profits or other gains by the use of the property
had he retained it.” (Channell, supra, 58 Cal.App.3d at p. 312, internal citation
omitted.)
• “What that time span [for damages for lost use and lost profits] should be
would be determined by the peculiar circumstances of the particular case before
the court and should present no insurmountable difficulty for a court in fixing a
reasonable period contemplated by the statute.” (Channell, supra, 58
Cal.App.3d at p. 317, footnote omitted.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
• “Mental distress is not an element of damages allowable under Civil Code
section 3343.” (Channell, supra, 58 Cal.App.3d at p. 315, internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1714–1716
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew
Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
1165
date the promise was breached because that is the date when the damage
occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co.
(1977) 66 Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
• “There are two measures of damages for fraud: out of pocket and benefit of the
bargain. The ‘out-of-pocket’ measure of damages ‘is directed to restoring the
plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the
transaction between what the plaintiff gave and what he received. The “benefit-
of-the-bargain” measure, on the other hand, is concerned with satisfying the
expectancy interest of the defrauded plaintiff by putting him in the position he
would have enjoyed if the false representation relied upon had been true; it
awards the difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.’ ‘In California, a
defrauded party is ordinarily limited to recovering his “out-of-pocket” loss
. . . .’ ” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [44
Cal.Rptr.2d 352, 900 P.2d 601], internal citations omitted.)
• “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent
with the logic and purpose of the tort form of action (i.e., compensation for loss
sustained rather than satisfaction of contractual expectations) while the ‘benefit-
of-the-bargain’ rule has been observed to be a more effective deterrent (in that it
contemplates an award even when the property received has a value equal to
what was given for it).” (Stout v. Turney (1978) 22 Cal.3d 718, 725 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In fraud cases involving the ‘purchase, sale or exchange of property,’ the
Legislature has expressly provided that the ‘out-of-pocket’ rather than the
‘benefit-of-the-bargain’ measure of damages should apply. Civil Code section
3343 provides the exclusive measure of damages for fraud in such cases.”
(Fragale v. Faulkner (2003) 110 Cal.App.4th 229, 236 [1 Cal.Rptr.3d 616].)
• “Civil Code section 3343 does not apply, however, ‘when a victim is defrauded
by its fiduciaries.’ Instead, in the case of fraud by a fiduciary, ‘the “broader”
measure of damages provided by sections 1709 and 3333 applies.’ . . . [¶] In
the case of a negligent misrepresentation by a fiduciary, ‘a plaintiff is only
entitled to its actual or “out-of-pocket” losses suffered because of [the]
fiduciary’s negligent misrepresentation under section 3333.’ [¶] The Supreme
Court has not decided whether ‘the measure of damages under section 3333
might be greater for a fiduciary’s intentional misrepresentation . . . .’ ”
(Fragale, supra, 110 Cal.App.4th at pp. 236–237, original italics, internal
citations omitted.)
• “We have previously held that a plaintiff is only entitled to its actual or ‘out-of-
pocket’ losses suffered because of fiduciary’s negligent misrepresentation under
section 3333. While the measure of damages under section 3333 might be
greater for a fiduciary’s intentional misrepresentation, we need not address that
issue here.” (Alliance Mortgage Co., supra, 10 Cal.4th at pp. 1249–1250.)
• “To recover damages for fraud, a plaintiff must have sustained damages
1167
1168
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [44 Cal.Rptr.2d 352, 900
P.2d 601]; Civ. Code, § 3343.) However, there is disagreement on the proper
measure if there is a fiduciary relationship.
Some courts have held that benefit-of-the-bargain damages are available if there is
both a fiduciary relationship and intentional misrepresentation. (See Fragale v.
Faulkner (2003) 110 Cal.App.4th 229, 235–239 [1 Cal.Rptr.3d 616]; Salahutdin v.
Valley of California, Inc. (1994) 24 Cal.App.4th 555, 564 [29 Cal.Rptr.2d 463]; see
also Alfaro v. Community Housing Improvement System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356, 1383 [89 Cal.Rptr.3d 659].) At least one court has
held to the contrary, that only out-of-pocket losses may be recovered. (See Hensley
v. McSweeney (2001) 90 Cal.App.4th 1081, 1086 [109 Cal.Rptr.2d 489].)
This instruction should be modified in cases involving promissory fraud: “In cases
of promissory fraud, the damages are measured by market value as of the date the
promise was breached because that is the date when the damage occurred.”
(Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66
Cal.App.3d 101, 145–146 [135 Cal.Rptr. 802].)
Sources and Authority
• Damages for Fraud. Civil Code section 1709.
• Measure of Damages in Tort. Civil Code section 3333.
• “There are two measures of damages for fraud: out of pocket and benefit of the
bargain. The ‘out-of-pocket’ measure of damages ‘is directed to restoring the
plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the
transaction between what the plaintiff gave and what he received. The “benefit-
of-the-bargain” measure, on the other hand, is concerned with satisfying the
expectancy interest of the defrauded plaintiff by putting him in the position he
would have enjoyed if the false representation relied upon had been true; it
awards the difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.’ ‘In California, a
defrauded party is ordinarily limited to recovering his “out-of-pocket” loss
. . . .’ ” (Alliance Mortgage Co. supra, 10 Cal.4th at p. 1240, internal citations
omitted.)
• “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent
with the logic and purpose of the tort form of action (i.e., compensation for loss
sustained rather than satisfaction of contractual expectations) while the ‘benefit-
of-the-bargain’ rule has been observed to be a more effective deterrent (in that it
contemplates an award even when the property received has a value equal to
what was given for it.)” (Stout v. Turney (1978) 22 Cal.3d 718, 725 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “We have previously held that a plaintiff is only entitled to its actual or ‘out-of-
pocket’ losses suffered because of fiduciary’s negligent misrepresentation under
section 3333. While the measure of damages under section 3333 might be
1170
1171
In a case such as this, that date is the date the complaining party learns, or at
least is put on notice, that a representation was false.” (Brandon G. v. Gray
(2003) 111 Cal.App.4th 29, 35 [3 Cal.Rptr.3d 330].)
• “This discovery element has been interpreted to mean ‘the discovery by the
aggrieved party of the fraud or facts that would lead a reasonably prudent
person to suspect fraud.’ ” (Doe v. Roman Catholic Bishop of Sacramento
(2010) 189 Cal.App.4th 1423, 1430 [117 Cal.Rptr.3d 597], original italics.)
• “Case law has interpreted this accrual provision to mean that ‘a cause of action
[under Code Civ. Proc., § 338(d)] accrues, and the limitations period
commences to run, when the aggrieved party could have discovered the . . .
mistake through the exercise of reasonable diligence.’ ” (Creditors Collection
Serv. v. Castaldi (1995) 38 Cal.App.4th 1039, 1044 [45 Cal.Rptr. 2d 511].)
• “One [exception to the limitations period] is the doctrine of fraudulent
concealment, which tolls the statute of limitations if a defendant’s deceptive
conduct ‘has caused a claim to grow stale.’ ” (Fuller v. First Franklin Financial
Corp. (2013) 216 Cal.App.4th 955, 962 [163 Cal.Rptr.3d 44].)
• “ ‘Technical rules as to when a cause of action accrues apply therefore only in
those cases which are free from fraud committed by the defendant. Said section
338, subdivision 4, . . . recognizes the nonapplicability of those technical rules
where the fraud of the defendant may be so concealed that in the absence of
circumstances imposing greater diligence on the plaintiff, the cause of action is
deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the
defendant by concealing his fraud, would effectively block recovery by the
plaintiff because of the intervention of the statute of limitations.’ ” (Snow v. A.
H. Robins Co. (1985) 165 Cal.App.3d 120, 127–128 [211 Cal.Rptr. 271],
internal citation omitted.)
• “[C]ourts have relied on the nature of the relationship between defendant and
plaintiff to explain application of the delayed accrual rule. The rule is generally
applicable to confidential or fiduciary relationships. The fiduciary relationship
carries a duty of full disclosure, and application of the discovery rule ‘prevents
the fiduciary from obtaining immunity for an initial breach of duty by a
subsequent breach of the obligation of disclosure.’ ” (Parsons v. Tickner (1995)
31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810], internal citations omitted.)
• “ ‘The provision tolling operation of [section 338(d)] until discovery of the
fraud has long been treated as an exception and, accordingly, this court has held
that if an action is brought more than three years after commission of the fraud,
plaintiff has the burden of pleading and proving that he did not make the
discovery until within three years prior to the filing of his complaint.’ ”
(Samuels v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701],
internal citation omitted.)
• “Only causes of action based on actual fraud are governed by section 338,
subdivision (d). This includes . . . causes of action based on fraudulent
concealment, which ‘is a species of fraud or deceit. [Citations.]’ ” (Stueve Bros.
1173
Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 322 [166 Cal.Rptr.3d
116].)
• “[T]he section 338, subdivision (d), three-year statute of limitations applies to
an unjust enrichment cause of action based on mistake.” (Federal Deposit Ins.
Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38], original
italics.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 653–663
Rylaarsdam & Edmon, California Practice Guide: Civil Procedure Before Trial, Ch.
6-C, Answer, ¶¶ 6:462–6:462.2 (The Rutter Group)
California Civil Procedure Before Trial, Ch. 25, Answer (Cont.Ed.Bar 4th ed.)
§ 25.46
43 California Forms of Pleading and Practice, Ch. 489, Relief From Judgments and
Orders, § 489.261 (Matthew Bender)
7 California Points and Authorities, Ch. 70A, Defaults and Relief From Orders and
Judgments: Equitable Remedies, §§ 70A.32, 70A.52 et seq. (Matthew Bender)
1 Matthew Bender Practice Guide: California Pretrial Civil Procedure, Ch. 4,
Limitation of Actions, 4.42 (Matthew Bender)
1926–1999. Reserved for Future Use
1174
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic $ ]
loss
Total Past Economic Damages: $
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 1900, Intentional Misrepresentation.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the defendant alleges that the representations referred to in question 1 were
1176
opinions only, additional questions may be required on this issue. See CACI No.
1904, Opinions as Statements of Fact.
If specificity is not required, users do not have to itemize all the damages listed in
question 6. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. However, if both intentional misrepresentation and negligent
misrepresentation (see CACI No. 1903) are to be presented to the jury in the
alternative, the preferred practice would seem to be that this verdict form and VF-
1903, Negligent Misrepresentation, be kept separate and presented in the
alternative. If different damages are recoverable on different causes of action,
replace the damages tables in all of the verdict forms with CACI No. VF-3920,
Damages on Multiple Legal Theories.
With respect to the same misrepresentation, question 2 above cannot be answered
“yes” and question 3 of VF-1903 cannot also be answered “no.” The jury may
continue to answer the next question from one form or the other, but not both.
If both intentional and negligent misrepresentation are before the jury, it is
important to distinguish between a statement made recklessly and without regard
for the truth (see question 2 above) and one made without reasonable grounds for
believing it is true (see CACI No. VF-1903, question 3). Question 2 of VF-1903
should be included to clarify that the difference is that for negligent
misrepresentation, the defendant honestly believes that the statement is true. (See
Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407–408 [11 Cal.Rptr.2d 51, 834
P.2d 745].)
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1177
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2016
Directions for Use
This verdict form is based on CACI No. 1901, Concealment.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Modify question 1 by referring to one of the other three grounds for concealment
listed in element 1 of CACI No. 1901, Concealment, depending on which ground is
applicable to the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
1179
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1180
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2014, December
2015, December 2016
Directions for Use
This verdict form is based on CACI No. 1902, False Promise.
1182
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If multiple promises are at issue, question 1 should be repeated to specify each
one; for example: “1. Did [name of defendant] promise [name of plaintiff] that
[specify promise]?” (See Ryan v. Crown Castle NG Networks, Inc. (2016) 6
Cal.App.5th 775, 794 [211 Cal.Rptr.3d 743].) The rest of the questions will need to
be repeated for each promise.
If specificity is not required, users do not have to itemize all the damages listed in
question 7. The breakdown is optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action (or from different promises), replace the damages tables in all of the verdict
forms with CACI No. VF-3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1183
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010, June
2014, December 2016, May 2017
1185
1186
1187
possible confusion, give the third option to CACI No. 2004, “Intentional Entry”
Explained.
If plaintiff is seeking nominal damages as an alternative to actual damages, insert
the following paragraph above element 4, add “and” at the end of element 2, and
adjust punctuation accordingly:
If you find all of the above, then the law assumes that [name of plaintiff] has
been harmed and [name of plaintiff] is entitled to a nominal sum such as one
dollar. [Name of plaintiff] is entitled to additional damages if [name of plaintiff]
proves the following:
The last sentence of the above paragraph, along with the final two elements of this
instruction, should be omitted if plaintiff is seeking nominal damages only. Read
“actually” in the fourth element only if nominal damages are also being sought.
Nominal damages alone are not available in cases involving intangible intrusions
such as noise and vibrations; proof of actual damage to the property is required:
“[T]he rule is that actionable trespass may not be predicated upon nondamaging
noise, odor, or light intrusion . . . .” (San Diego Gas & Electric Co. v. Superior
Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal
citation omitted.)
For an instruction on control of property, see CACI No. 1002, Extent of Control
Over Premises Area, in the Premises Liability series.
Sources and Authority
• “Generally, landowners and tenants have a right to exclude persons from
trespassing on private property; the right to exclude persons is a fundamental
aspect of private property ownership.” (Ralphs Grocery Co. v. Victory
Consultants, Inc. (2017) 17 Cal.App.5th 245, 258 [225 Cal.Rptr.3d 305].)
• “ ‘Trespass is an unlawful interference with possession of property.’ The
elements of trespass are: (1) the plaintiff’s ownership or control of the property;
(2) the defendant’s intentional, reckless, or negligent entry onto the property; (3)
lack of permission for the entry or acts in excess of permission; (4) harm; and
(5) the defendant’s conduct was a substantial factor in causing the harm. (See
CACI No. 2000.)” (Ralphs Grocery Co., supra, 17 Cal.App.5th at pp. 261–262,
internal citation omitted.)
• “[I]n order to state a cause of action for trespass a plaintiff must allege an
unauthorized and tangible entry on the land of another, which interfered with
the plaintiff’s exclusive possessory rights.” (McBride v. Smith (2018) 18
Cal.App.5th 1160, 1174 [227 Cal.Rptr.3d 390].)
• “The emission of sound waves which cause actual physical damage to property
constitutes a trespass. Liability for trespass may be imposed for conduct which
is intentional, reckless, negligent or the result of an extra-hazardous activity.”
(Staples, supra, 189 Cal.App.3d at p. 1406, internal citations omitted.)
• “California’s definition of trespass is considerably narrower than its definition of
nuisance. ‘ “A trespass is an invasion of the interest in the exclusive possession
1189
1191
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 693–695
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, §§ 550.11, 550.19
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.20 (Matthew Bender)
1 California Civil Practice: Torts §§ 18:1, 18:4–18:8, 18:10 (Thomson Reuters)
1192
1194
necessary. (Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App.2d 321
[43 Cal.Rptr. 542].)
It is no defense that the defendant mistakenly, but in good faith, believed that he or
she had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14
Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word
“intentionally” in element 2 might be confusing to the jury. To alleviate this
possible confusion, give the third option to CACI No. 2004, “Intentional Entry”
Explained. See also the Sources and Authority to CACI No. 2000,
Trespass—Essential Factual Elements.
Include the last paragraph if the plaintiff claims harm based on lost aesthetics and
functionality.
Sources and Authority
• Damages for Injury to Timber. Civil Code section 3346(a).
• “[T]he effect of [Civil Code] section 3346 as amended, read together with
[Code of Civil Procedure] section 733, is that the Legislature intended, insofar
as wilful and malicious trespass is concerned under either section, to leave the
imposition of treble damages discretionary with the court, but to place a floor
upon that discretion at double damages which must be applied whether the
trespass be wilful and malicious or casual and involuntary, etc. There are now
three measures of damages applicable to the pertinent types of trespass: (1) for
wilful and malicious trespass the court may impose treble damages but must
impose double damages; (2) for casual and involuntary trespass, etc., the court
must impose double damages; and (3) for trespass under authority actual
damages.” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645, fn.3 [199
Cal.Rptr.3d 705].)
• “The measure of damages to be doubled or trebled under Code of Civil
Procedure section 733 and Civil Code section 3346 is not limited to the value
of the timber or the damage to the trees. The statutes have been interpreted to
permit doubling or trebling the full measure of compensable damages for
tortious injury to property.” (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312
[212 Cal.Rptr.3d 920] [annoyance and discomfort damages resulting from
tortious injuries to timber or trees are subject to the damage multiplier under
Code of Civil Procedure section 733 and Civil Code section 3346].)
• The damages provisions in sections 3346 and 733 must be “treated as penal and
punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr.
857], internal citation omitted.)
• “ ‘However, due to the penal nature of these provisions, the damages should be
neither doubled nor tripled under section 3346 if punitive damages are awarded
under section 3294. That would amount to punishing the defendant twice and is
not necessary to further the policy behind section 3294 of educating blunderers
(persons who mistake location of boundary lines) and discouraging rogues
(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
1196
1197
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1917−1919
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.10
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
1198
of the timber or the damage to the trees. The statutes have been interpreted to
permit doubling or trebling the full measure of compensable damages for
tortious injury to property.” (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312
[212 Cal.Rptr.3d 920] [annoyance and discomfort damages resulting from
tortious injuries to timber or trees are subject to the damage multiplier under
Code of Civil Procedure section 733 and Civil Code section 3346].)
• The damages provisions in sections 3346 and 733 must be “treated as penal and
punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr.
857], internal citation omitted.)
• “ ‘However, due to the penal nature of these provisions, the damages should be
neither doubled nor tripled under section 3346 if punitive damages are awarded
under section 3294. That would amount to punishing the defendant twice and is
not necessary to further the policy behind section 3294 of educating blunderers
(persons who mistake location of boundary lines) and discouraging rogues
(persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc.
(2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations
omitted.)
• “ ‘ “ ‘[T]reble damages may only be awarded when the wrongdoer intentionally
acted wilfully or maliciously. The intent required is the intent to vex, harass, or
annoy or injure the plaintiff. It is a question of fact for the trial court whether
or not such intent exists.’ [Civil Code section 3346 and Code of Civil Procedure
section 733] are permissive and not mandatory and while they ‘prescribe the
degree of penalty to be invoked they commit to the sound discretion of the trial
court the facts and circumstances under which it shall be invoked.’ ” ’ ”
(Salazar, supra, 245 Cal.App.4th at p. 646, internal citation omitted.)
• “Although neither section [3346 or 733] expressly so provides, it is now settled
that to warrant such an award of treble damages it must be established that the
wrongful act was willful and malicious.” (Caldwell v. Walker (1963) 211
Cal.App.2d 758, 762 [27 Cal.Rptr. 675], internal citations omitted.)
• “A proper and helpful analogue here is the award of exemplary damages under
section 3294 of the Civil Code when a defendant has been guilty, inter alia, of
‘malice, express or implied.’ . . . ‘In order to warrant the allowance of such
damages the act complained of must not only be wilful, in the sense of
intentional, but it must be accompanied by some aggravating circumstance,
amounting to malice. Malice implies an act conceived in a spirit of mischief or
with criminal indifference towards the obligations owed to others. There must
be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient.’ . . .
Malice may consist of a state of mind determined to perform an act with
reckless or wanton disregard of or indifference to the rights of others. Since a
defendant rarely admits to such a state of mind, it must frequently be
established from the circumstances surrounding his allegedly malicious acts.”
(Caldwell, supra, 211 Cal.App.2d at pp. 763–764, internal citations omitted.)
• “Under [Health and Safety Code] section 13007, a tortfeasor generally is liable
1200
to the owner of property for damage caused by a negligently set fire. ‘[T]he
statute places no restrictions on the type of property damage that is
compensable.’ Such damages might include, for example, damage to structures,
to movable personal property, to soil, or to undergrowth; damages may even
include such elements as the lost profits of a business damaged by fire. If the
fire also damages trees—that is, causes ‘injuries to . . . trees . . . upon the
land of another’—then the actual damages recoverable under section 13007 may
be doubled (for negligently caused fires) or trebled (for fires intended to spread
to the plaintiff’s property) pursuant to section 3346.” (Kelly v. CB&I
Constructors, Inc. (2009) 179 Cal.App.4th 442, 461 [102 Cal.Rptr.3d 32],
internal citations omitted; but see Gould v. Madonna (1970) 5 Cal.App.3d 404,
407–408 [85 Cal.Rptr. 457] [Civ. Code, § 3346 does not apply to fires
negligently set; Health & Saf. Code, § 13007 provides sole remedy].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1918
4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expenses and
Economic Loss, § 52.34 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 350, Logs and Timber, § 350.12
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew
Bender)
1201
1203
(Matthew Bender)
1 California Civil Practice: Torts § 18:11 (Thomson Reuters West)
2006–2019. Reserved for Future Use
1205
New September 2003; Revised December 2007, June 2016, November 2017
Directions for Use
Give this instruction for a claim for public nuisance. For an instruction on private
nuisance, give CACI No. 2021, Private Nuisance—Essential Factual Elements.
While a private nuisance is designed to vindicate individual land ownership
interests, a public nuisance is not dependent on an interference with any particular
rights of land: The public nuisance doctrine aims at the protection and redress of
community interests. (Citizens for Odor Nuisance Abatement v. City of San Diego
1206
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103 [60 Cal.Rptr.2d
277, 929 P.2d 596].)
• “[W]hen the nuisance is a private as well as a public one, there is no
requirement the plaintiff suffer damage different in kind from that suffered by
the general public. That is, the plaintiff ‘ “does not lose his rights as a
landowner merely because others suffer damage of the same kind, or even of
the same degree . . . .” ’ ” (Birke, supra, 169 Cal.App.4th at p. 1551, internal
citations omitted.)
• “Of course, not every interference with collective social interests constitutes a
public nuisance. To qualify . . . the interference must be both substantial and
unreasonable.” (People ex rel. Gallo, supra, 14 Cal.4th at p. 1105.)
• “It is substantial if it causes significant harm and unreasonable if its social
utility is outweighed by the gravity of the harm inflicted.” People v. ConAgra
Grocery Products Co. (2017) 17 Cal.App.5th 51, 112 [227 Cal.Rptr.3d 499].)
• “The fact that the defendants’ alleged misconduct consists of omission rather
than affirmative actions does not preclude nuisance liability.” (Birke, supra, 169
Cal.App.4th at p. 1552 [citing this instruction], internal citation omitted.)
• “A nuisance may be either a negligent or an intentional tort.” (Stoiber v.
Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal
citation omitted.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
‘ “where liability for the nuisance is predicated on the omission of the owner of
the premises to abate it, rather than on his having created it, then negligence is
said to be involved. . . .” [Citations.]’ ” (City of Pasadena v. Superior Court
(2014) 228 Cal.App.4th 1228, 1236 [176 Cal.Rptr.3d 422], internal citations
omitted.)
• “An essential element of a cause of action for nuisance is damage or injury.”
(Helix Land Co., Inc. v. City of San Diego (1978) 82 Cal.App.3d 932, 950 [147
Cal.Rptr. 683].)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property . . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “A fire hazard, at least when coupled with other conditions, can be found to be
a public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• “By analogy to the rules governing tort liability, courts apply the same elements
to determine liability for a public nuisance.” (People ex rel. Gallo, supra, 14
Cal.4th at p. 1105, fn. 3, internal citation omitted.)
• “The elements ‘of a cause of action for public nuisance include the existence of
a duty and causation.’ ” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542
1208
1210
New September 2003; Revised February 2007, December 2011, December 2015,
June 2016, May 2017, May 2018
Directions for Use
Private nuisance liability depends on some sort of conduct by the defendant that
either directly and unreasonably interferes with the plaintiff’s property or creates a
condition that does so. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206
Cal.App.3d 92, 100 [253 Cal.Rptr. 470].) Element 2 requires that the defendant
have acted to create a condition or allowed a condition to exist by failing to act.
The act that causes the interference may be intentional and unreasonable. Or it may
be unintentional but caused by negligent or reckless conduct. Or it may result from
an abnormally dangerous activity for which there is strict liability. However, if the
act is intentional but reasonable, or if it is entirely accidental, there is generally no
liability. (Lussier, supra, 206 Cal.App.3d at p. 100.)
The intent required is only to do the act that interferes, not an intent to cause harm.
(Lussier, supra, 206 Cal.App.3d at pp. 100, 106; see Rest.2d Torts, § 822.) For
example, it is sufficient that one intend to chop down a tree; it is not necessary to
intend that it fall on a neighbor’s property.
If the condition results from an abnormally dangerous activity, it must be one for
which there is strict liability. (Lussier, supra, 206 Cal.App.3d at p. 100; see Rest.2d
Torts, § 822).
There may be an exception to the scienter requirement of element 3 for at least
some harm caused by trees. There are cases holding that a property owner is
strictly liable for damage caused by tree branches and roots that encroach on
neighboring property. (See Lussier, supra, 206 Cal.App.3d at p.106, fn. 5; see also
Mattos v. Mattos (1958) 162 Cal.App.2d 41, 43 [328 P.2d 269] [absolute liability of
an owner to remove portions of his fallen trees that extend over and upon another’s
land]; cf. City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1236
[176 Cal.Rptr.3d 422] [plaintiff must prove negligent maintenance of trees that fell
onto plaintiff’s property in a windstorm].) Do not give element 3 if the court
decides that there is strict liability for damage caused by encroaching or falling
trees.
If the claim is that the defendant failed to abate a nuisance, negligence must be
proved. (City of Pasadena, supra, 228 Cal.App.4th at p. 1236.)
Element 9 must be supplemented with CACI No. 2022, Private
Nuisance—Balancing-Test Factors—Seriousness of Harm and Public Benefit. (See
Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 160−165
[184 Cal.Rptr.3d 26].) For instruction on control of property, see CACI No. 1002,
Extent of Control Over Premises Area, in the Premises Liability series.
1212
over or upon plaintiff’s land, they clearly would constitute a nuisance, which
defendant could be required to abate.” (Mattos, supra, 162 Cal.App.2d at p. 42.)
• “Although the central idea of nuisance is the unreasonable invasion of this
interest and not the particular type of conduct subjecting the actor to liability,
liability nevertheless depends on some sort of conduct that either directly and
unreasonably interferes with it or creates a condition that does so. ‘The invasion
may be intentional and unreasonable. It may be unintentional but caused by
negligent or reckless conduct; or it may result from an abnormally dangerous
activity for which there is strict liability. On any of these bases the defendant
may be liable. On the other hand, the invasion may be intentional but
reasonable; or it may be entirely accidental and not fall within any of the
categories mentioned above. In these cases there is no liability.’ ” (Lussier,
supra, 206 Cal.App.3d at p. 100, internal citations omitted.)
• “A finding of an actionable nuisance does not require a showing that the
defendant acted unreasonably. As one treatise noted, ‘[c]onfusion has resulted
from the fact that the intentional interference with the plaintiff’s use of his
property can be unreasonable even when the defendant’s conduct is reasonable.
This is simply because a reasonable person could conclude that the plaintiff’s
loss resulting from the intentional interference ought to be allocated to the
defendant.’ ” (Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th
786, 804 [230 Cal.Rptr.3d 595], quoting Prosser & Keeton (5th ed. 1984) Torts
§ 88.)
• “We do not intend to suggest, however, that one is strictly liable for damages
that arise when a natural condition of one’s land interferes with another’s free
use and enjoyment of his property. Such a rule would, quite anomalously,
equate natural conditions with dangerous animals, ultrahazardous activities, or
defective products, for which strict liability is reserved.” (Lussier, supra, 206
Cal.App.3d at pp. 101–102.)
• “Clearly, a claim of nuisance based on our example is easier to prove than one
based on negligent conduct, for in the former, a plaintiff need only show that
the defendant committed the acts that caused injury, whereas in the latter, a
plaintiff must establish a duty to act and prove that the defendant’s failure to act
reasonably in the face of a known danger breached that duty and caused
damages.” (Lussier, supra, 206 Cal.App.3d at p. 106.)
• “We note, however, a unique line of cases, starting with Grandona v. Lovdal
(1886) 70 Cal. 161 [11 P. 623], which holds that to the extent that the branches
and roots of trees encroach upon another’s land and cause or threaten damage,
they may constitute a nuisance. Superficially, these cases appear to impose
nuisance liability in the absence of wrongful conduct.” (Lussier, supra, 206
Cal.App.3d at p. 102, fn. 5 [but questioning validity of such a rule], internal
citations omitted.)
• “The fact that the defendants’ alleged misconduct consists of omission rather
than affirmative actions does not preclude nuisance liability.” (Birke v. Oakwood
1215
Worldwide (2009) 169 Cal.App.4th 1540, 1552 [87 Cal.Rptr.3d 602], internal
citations omitted.)
• “A nuisance may be either a negligent or an intentional tort.” (Stoiber v.
Honeychuck (1980) 101 Cal.App.3d 903, 920 [162 Cal.Rptr. 194], internal
citation omitted.)
• “Nuisance liability is not necessarily based on negligence, thus, ‘one may be
liable for a nuisance even in the absence of negligence. [Citations.]’ However,
‘ “ ‘where liability for the nuisance is predicated on the omission of the owner
of the premises to abate it, rather than on his having created it, then negligence
is said to be involved. . . .” [Citations.]’ ” (City of Pasadena, supra, 228
Cal.App.4th at p. 1236, internal citations omitted.)
• “We acknowledge that to recover on a nuisance claim the harm the plaintiff
suffers need not be a physical injury. Thus, the absence of evidence in this case
to establish that [plaintiff] ‘s physical injuries were caused by the stray voltage
would not preclude recovery on her nuisance claim.” (Wilson, supra, 234
Cal.App.4th at p. 159, internal citations omitted.)
• “[M]ere apprehension of injury from a dangerous condition may constitute a
nuisance where it interferes with the comfortable enjoyment of property. . . .”
(McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 [172 P.2d 758].)
• “It is the general rule that the unreasonable, unwarrantable or unlawful use by a
person of his own property so as to interfere with the rights of others is a
nuisance [citation]. In fact, any unwarranted activity which causes substantial
injury to the property of another or obstructs its reasonable use and enjoyment
is a nuisance which may be abated. And, even a lawful use of one’s property
may constitute a nuisance if it is part of a general scheme to annoy a neighbor
and if the main purpose of the use is to prevent the neighbor from reasonable
enjoyment of his own property [citation].” (McBride, supra, 18 Cal.App.5th at
p. 1180.)
• “A fire hazard, at least when coupled with other conditions, can be found to be
a public nuisance and abated.” (People v. Oliver (1948) 86 Cal.App.2d 885, 889
[195 P.2d 926].)
• “[T]he exculpatory effect of Civil Code section 3482 has been circumscribed by
decisions of this court. . . . ‘ “A statutory sanction cannot be pleaded in
justification of acts which by the general rules of law constitute a nuisance,
unless the acts complained of are authorized by the express terms of the statute
under which the justification is made, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can be fairly stated
that the Legislature contemplated the doing of the very act which occasions the
injury.’ ” ” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291 [142
Cal.Rptr. 429, 572 P.2d 43], internal citation omitted.)
Secondary Sources
13 Witkin, Summary of California Law (11th ed. 2017) Equity, § 174
1216
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, §§ 17.01–17.05
(Matthew Bender)
34 California Forms of Pleading and Practice, Ch. 391, Nuisance, § 391.13
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.20 (Matthew
Bender)
California Civil Practice: Torts §§ 17:1, 17:2, 17:4 (Thomson Reuters)
1217
1220
1222
sometimes harsh, the fact that plaintiff is neither aware of his cause of action
nor of the identity of a wrongdoer will not toll the statute. [¶] The harshness of
this rule has been ameliorated in some cases where it is manifestly unjust to
deprive plaintiffs of a cause of action before they are aware that they have been
injured. This modified rule has been applied to latent defects in real property
and improvements. In the case of such latent defects the statute of limitations
begins to run only when ‘noticeable damage occurs.’ ” (Leaf v. City of San
Mateo (1980) 104 Cal.App.3d 398, 406–407 [163 Cal.Rptr. 711], internal
citations omitted, disapproved on another ground in Trope v. Katz (1995) 11
Cal.4th 274, 292 [45 Cal.Rptr.2d 241, 902 P.2d 259], original italics.)
Secondary Sources
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.09[5] (Matthew
Bender)
Brown et al., California Practice Guide: Civil Procedure Before Trial (The Rutter
Group) ¶¶ 6:462–6:462.2
2 California Real Property Remedies and Damages, Ch. 11, Remedies for Nuisance
and Trespass (Cont.Ed.Bar 2d ed.) §§ 11.38–11.40
1 California Forms of Pleading and Practice, Ch. 11, Adjoining Landowners,
§ 11.24 (Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, §§ 225.240–225.245
(Matthew Bender)
16 California Points and Authorities, Ch. 167, Nuisance, § 167.44 (Matthew
Bender)
1226
If you decide that [name of plaintiff] has proved that [name of defendant]
committed a [trespass/nuisance], [name of plaintiff] may recover damages
that would reasonably compensate [him/her] for the annoyance and
discomfort, including emotional distress or mental anguish, caused by
the injury to [his/her] peaceful enjoyment of the property that [he/she]
occupied.
invasion of the property. But it is necessary that the annoyance and discomfort
arise from and relate to some personal effect of the interference with use and
enjoyment which lies at the heart of the tort of trespass.” (Vieira Enterprises,
Inc., supra, 8 Cal.App.5th at p. 1094, original italics.)
• “[A] plaintiff may recover damages for annoyance and discomfort proximately
caused by tortious injuries to trees on her property if she was in immediate and
personal possession of the property at the time of the trespass.” (Fulle v. Kanani
(2017) 7 Cal.App.5th 1305, 1313 [212 Cal.Rptr.3d 920], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1915
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.23 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.21
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.145 (Matthew
Bender)
2032–2099. Reserved for Future Use
1229
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, December 2010, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1231
1232
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, April 2007, October 2008,
December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2000, Trespass—Essential Factual
Elements, and CACI No. 2005, Affırmative Defense—Necessity.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of
plaintiff’s consent, question 3 can be modified, as in element 3 in CACI No. 2000.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1234
1235
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2001, Trespass—Extrahazardous Activities.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If there is an issue regarding whether the defendant exceeded the scope of
1237
1238
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements. The amount of actual damages found by the jury is to be
doubled. (See Civ. Code, § 3346(a).) The court can do the computation based on
the jury’s award.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there is an issue regarding whether the defendant exceeded the scope of
plaintiff’s consent, question 3 can be modified, as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
1240
1241
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2002, Trespass to Timber—Essential
Factual Elements, and CACI No. 2003, Damage to Timber—Willful and Malicious
Conduct.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
1243
If there is an issue regarding whether the defendant exceeded the scope of the
plaintiff’s consent, question 3 can be modified as in element 3 in CACI No. 2002.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1244
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1246
New September 2003; Revised April 2007, December 2007, December 2010,
December 2016
Directions for Use
This form is based on CACI No. 2020, Public Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations may be substituted in question 1 as in element 1 of CACI
No. 2020.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
Depending on the facts of the case, question 1 can be modified, as in element 1 of
CACI No. 2020.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1247
Signed:
Presiding Juror
Dated:
1249
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2010,
December 2011, December 2016, May 2017
Directions for Use
This form is based on CACI No. 2021, Private Nuisance—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Depending on the facts of the case, question 2 may be replaced with one of the
other options from element 2 of CACI No. 2021.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2007–VF-2099. Reserved for Future Use
1250
1251
New September 2003; Revised December 2009, December 2010, May 2017
Directions for Use
The last option for element 2 may be used if the defendant’s original possession of
the property was not tortious. (See Atwood v. S. Cal. Ice Co. (1923) 63 Cal.App.
343, 345 [218 P. 283], disapproved on other grounds in Wilson v. Crown Transfer
& Storage Co. (1927) 201 Cal. 701 [258 P. 596].)
Sources and Authority
• “Conversion is the wrongful exercise of dominion over the property of another.
The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61
Cal.4th 1225, 1240 [191 Cal.Rptr.3d 536, 354 P.3d 334].)
• “It is not necessary that there be a manual taking of the property; it is only
necessary to show an assumption of control or ownership over the property, or
that the alleged converter has applied the property to his own use.” . . .’ ”
1252
(Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507 [85
Cal.Rptr.3d 268].)
• “[A]ny act of dominion wrongfully exerted over the personal property of
another inconsistent with the owner’s rights thereto constitutes conversion.”
(Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 50 [108
Cal.Rptr.3d 455].)
• “To prove a cause of action for conversion, the plaintiff must show the
defendant acted intentionally to wrongfully dispose of the property of another.”
(Duke v. Superior Court (2017) 18 Cal.App.5th 490, 508 [226 Cal.Rptr.3d
807].)
• “[Conversion] must be knowingly or intentionally done, but a wrongful intent is
not necessary. Because the act must be knowingly done, ‘neither negligence,
active or passive, nor a breach of contract, even though it result in injury to, or
loss of, specific property, constitutes a conversion.’ It follows therefore that
mistake, good faith, and due care are ordinarily immaterial, and cannot be set
up as defenses in an action for conversion.” (Taylor v. Forte Hotels Int’l (1991)
235 Cal.App.3d 1119, 1124 [1 Cal.Rptr.2d 189], original italics, internal
citations omitted.)
• “Conversion is a strict liability tort. The foundation of the action rests neither in
the knowledge nor the intent of the defendant. Instead, the tort consists in the
breach of an absolute duty; the act of conversion itself is tortious. Therefore,
questions of the defendant’s good faith, lack of knowledge, and motive are
ordinarily immaterial. The basis of a conversion action ‘ “rests upon the
unwarranted interference by defendant with the dominion over the property of
the plaintiff from which injury to the latter results. Therefore, neither good nor
bad faith, neither care nor negligence, neither knowledge nor ignorance, are the
gist of the action.” [Citations.]’ ” (Los Angeles Federal Credit Union v.
Madatyan (2012) 209 Cal.App.4th 1383, 1387 [147 Cal.Rptr.3d 768].)
• “ ‘ “Conversion is a strict liability tort,” ’ so the Bank cannot defeat the claim
on the grounds that it accepted a forged signature in good faith. Financial
institutions can be liable to their depositors for transferring money out of their
accounts on forged instruments.” (Fong v. East West Bank (2018) 19
Cal.App.5th 224, 235 [227 Cal.Rptr.3d 838], internal citation omitted.)
• “The rule of strict liability applies equally to purchasers of converted goods, or
more generally to purchasers from sellers who lack the power to transfer
ownership of the goods sold. That is, there is no general exception for bona fide
purchasers.” (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177,
1181 [180 Cal.Rptr.3d 610], internal citations omitted.)
• “There are recognized exceptions to the general rule of strict liability. Some
exceptions are based on circumstances in which ‘the person transferring
possession may have the legal power to convey to a bona fide transferee a good
title,’ as, for example, when ‘a principal has clothed an agent in apparent
authority exceeding that which was intended.’ Another exception concerns
1253
or damages to the personal property, the owner has a cause of action for
trespass or case, and may recover only the actual damages suffered by reason of
the impairment of the property or the loss of its use. As [plaintiff] was a
cotenant and had the right of possession of the realty, which included the right
to keep his personal property thereon, [defendant]’s act of placing the goods in
storage, although not constituting the assertion of ownership and a substantial
interference with possession to the extent of a conversion, amounted to an
intermeddling. Therefore, [plaintiff] is entitled to actual damages in an amount
sufficient to compensate him for any impairment of the property or loss of its
use.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551–552 [176 P.2d 1], internal
citation omitted.)
• “[T]he law is well settled that there can be no conversion where an owner
either expressly or impliedly assents to or ratifies the taking, use or disposition
of his property.” (Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d
468, 474 [139 P.2d 80], internal citations omitted.)
• “As to intentional invasions of the plaintiff’s interests, his consent negatives the
wrongful element of the defendant’s act, and prevents the existence of a tort.
‘The absence of lawful consent,’ said Mr. Justice Holmes, ‘is part of the
definition of an assault.’ The same is true of false imprisonment, conversion,
and trespass.” (Tavernier v. Maes (1966) 242 Cal.App.2d 532, 552 [51 Cal.Rptr.
575], internal citations omitted.)
• “If a defendant is authorized to make a specific use of a plaintiff’s property, use
in excess of that authorized may subject the defendant to liability for
conversion, if such use seriously violates another’s right to control the use of
the property.” (Duke, supra, 18 Cal.App.5th at p. 506.)
• “[D]amages for emotional distress growing out of a defendant’s conversion of
personal property are recoverable.” (Hensley v. San Diego Gas & Electric Co.
(2017) 7 Cal.App.5th.1337, 1358 [213 Cal.Rptr.3d 803].)
• “ ‘Money cannot be the subject of a cause of action for conversion unless there
is a specific, identifiable sum involved, such as where an agent accepts a sum of
money to be paid to another and fails to make the payment.’ A ‘generalized
claim for money [is] not actionable as conversion.’ ” (PCO, Inc. v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384,
395 [58 Cal.Rptr.3d 516], internal citations omitted.)
• “Generally, conversion has been held to apply to the taking of intangible
property rights when ‘represented by documents, such as bonds, notes, bills of
exchange, stock certificates, and warehouse receipts.’ As one authority has
written, ‘courts have permitted a recovery for conversion of assets reflected in
such documents as accounts showing amounts owed, life insurance policies, and
other evidentiary documents. These cases are far removed from the paradigm
case of physical conversion; they are essentially financial or economic tort
cases, not physical interference cases.’ ” (Welco Electronics, Inc. v. Mora (2014)
223 Cal.App.4th 202, 209 [166 Cal.Rptr.3d 877], internal citation omitted.)
1255
• “[I]t is ‘well settled in California that shares of corporate stock are subject to an
action in conversion’ and ‘it is not necessary that possession of the certificate
evidencing title be disturbed.’ Instead, it is sufficient that there is interference
with the owner’s ‘free and unhampered right to dispose of property without
limitations imposed by strangers to the title.’ ” (Applied Medical Corp. v.
Thomas (2017) 10 Cal.App.5th 927, 938 [217 Cal.Rptr.3d 169].)
• “[T]here is no special rule preventing a depositor from pursuing a conversion
action against the bank that holds his or her money. . . . ‘The law applicable to
conversion of personal property applies to instruments,’ which includes
certificates of deposit.” (Fong, supra, 19 Cal.App.5th at pp. 232–233.)
• “Credit card, debit card, or PayPal information may be the subject of a
conversion.” (Welco Electronics, Inc., supra, 223 Cal.App.4th at p. 212,
footnote omitted.)
• “One who buys property in good faith from a party lacking title and the right to
sell may be liable for conversion. The remedies for conversion include specific
recovery of the property, damages, and a quieting of title.” (State Farm Mut.
Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076,
1081–1082 [62 Cal.Rptr.2d 178], internal citations omitted.)
• “In order to establish a conversion, the plaintiff ‘must show an intention or
purpose to convert the goods and to exercise ownership over them, or to
prevent the owner from taking possession of his property.’ Thus, a necessary
element of the tort is an intent to exercise ownership over property which
belongs to another. For this reason, conversion is considered an intentional
tort.” (Collin v. American Empire Insurance Co. (1994) 21 Cal.App.4th 787,
812 [26 Cal.Rptr.2d 391], internal citations omitted.)
• “A conversion can occur when a willful failure to return property deprives the
owner of possession.” (Fearon v. Department of Corrections (1984) 162
Cal.App.3d 1254, 1257 [209 Cal.Rptr. 309], internal citation omitted.)
• “A demand for return of the property is not a condition precedent to institution
of the action when possession was originally acquired by a tort as it was in this
case.” (Igauye v. Howard (1952) 114 Cal.App.2d 122, 127 [249 P.2d 558].)
• “ ‘Negligence in caring for the goods is not an act of dominion over them such
as is necessary to make the bailee liable as a converter.’ Thus a warehouseman’s
negligence in causing a fire which destroyed the plaintiffs’ goods will not
support a conversion claim.” (Gonzales v. Pers. Storage (1997) 56 Cal.App.4th
464, 477 [65 Cal.Rptr.2d 473], internal citations omitted.)
• “Although damages for conversion are frequently the equivalent to the damages
for negligence, i.e., specific recovery of the property or damages based on the
value of the property, negligence is no part of an action for conversion.”
(Taylor, supra, 235 Cal.App.3d at p. 1123, internal citation omitted.)
• “A person without legal title to property may recover from a converter if the
plaintiff is responsible to the true owner, such as in the case of a bailee or
1256
1257
1260
1261
conversion, which is rebuttable, save and except when section 3337 applies.
Under Civil Code section 3337, a defendant cannot rebut the presumption by
claiming that he applied the converted property to plaintiff’s benefit when he
took unlawful possession of the property from the beginning. Consequently, the
effect of section 3337 is to prevent mitigation when property is stolen from the
plaintiff and subsequently applied to his benefit. In this situation, the defendant
will not be able to claim that his conversion benefited plaintiff; he will thereby
be prevented from claiming an offset derived from his original wrong. In
contrast to this situation, if the particular facts of a case indicate, as in the
instant case, that the possession was lawful before the conversion occurred . . .
Civil Code section 3337 is inapplicable, and a converter is not precluded from
claiming mitigation of damages.” (Dakota Gardens Apartment Investors “B” v.
Pudwill (1977) 75 Cal.App.3d 346, 351–352 [142 Cal.Rptr. 126].)
• “[W]e conclude that notwithstanding further developments in the law of
negligence, damages for emotional distress growing out of a defendant’s
conversion of personal property are recoverable.” (Gonzales, supra, 56
Cal.App.4th at p. 477, internal citations omitted.)
• “In the absence of special circumstances the appropriate measure of damages
for conversion of personal property is the fair market value of that property plus
interest from the date of conversion, the standard first listed in section 3336,
Civil Code. However, where proof establishes an injury beyond that which
would be adequately compensated by the value of the property and interest, the
court may award such amounts as will indemnify for all proximate reasonable
loss caused by the wrongful act. Where damages for loss of use exceeds the
legal rate of interest, it is appropriate to award the former, but not both.” (Lint
v. Chisholm (1981) 121 Cal.App.3d 615, 624–625 [177 Cal.Rptr. 314], internal
citations omitted.)
• “ ‘To entitle a party to such compensation the [evidence] should tend to show
that money was properly paid out and time properly lost in pursuit of the
property, and how much.’ Such evidence should be definite and certain.
Expenses ‘incurred in preparation for litigation and not in pursuit of property’
cannot be allowed as damages under Civil Code section 3336. Additionally, any
such compensation must be fair, i.e., reasonable.” (Haines v. Parra (1987) 193
Cal.App.3d 1553, 1559 [239 Cal.Rptr. 178], internal citations omitted.)
• “[A]lthough good faith and mistake are not defenses to an action for
conversion, the plaintiff’s damages will be reduced if the defendant returns the
property or the plaintiff otherwise recovers the property.” (Krusi v. Bear, Stearns
& Co. (1983) 144 Cal.App.3d 664, 673 [192 Cal.Rptr. 793], internal citations
omitted.)
• “Causes of action for conversion and trespass support an award for exemplary
damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137,
148 [173 Cal.Rptr. 751], internal citation omitted.)
• “Ordinarily ‘value of the property’ at the time of the conversion is determined
1263
by its market value at the time. However, ‘[w]here certain property has a
peculiar value to a person recovering damages for deprivation thereof, or injury
thereto, that may be deemed to be its value . . . against a willful wrongdoer.’ ”
(In re Brian S. (1982) 130 Cal.App.3d 523, 530 [181 Cal.Rptr. 778], internal
citations omitted.)
• “In an action for damages for conversion, it is the rule that the plaintiff,
although owning but a limited or qualified interest in the property, may, as
against a stranger who has no ownership therein, recover the full value of the
property converted.” (Camp v. Ortega (1962) 209 Cal.App.2d 275, 286 [25
Cal.Rptr. 873], internal citations omitted.)
• “A plaintiff seeking recovery under the alternative provision of the statute must
therefore plead and prove the existence of ‘special circumstances which require
a different measure of damages to be applied.’ Having done so, the trier of fact
must then determine ‘whether it was reasonably forseeable to a prudent person,
having regard for the accompanying circumstances, that injury or damage would
likely result from his wrongful act.’ ” (Krueger v. Bank of America (1983) 145
Cal.App.3d 204, 215 [193 Cal.Rptr. 322], internal citations omitted.)
• “Defendants contend that the anticipated loss of profits is not ‘the natural,
reasonable and proximate result of the wrongful act complained of,’ within the
meaning of section 3336. Although no California case which has applied the
alternative measure of damages in a conversion case has specifically defined
this language, we are satisfied that its meaning is synonymous with the term
‘proximate cause’ or ‘legal cause.’ These terms mean, in essence, ‘that there be
some reasonable connection between the act or omission of the defendant and
the damage which the plaintiff has suffered.’ In determining whether this
connection exists, the question is whether it was reasonably foreseeable to a
prudent person, having regard for the accompanying circumstances, that injury
or damage would likely result from his wrongful act. This question being one
of fact to be determined generally by the trier of fact.” (Myers, supra, 233
Cal.App.2d at pp. 119–120, internal citations omitted.)
• “In exceptional circumstances, to avoid injustice, loss of profits may be the
measure.” (Newhart v. Pierce (1967) 254 Cal.App.2d 783, 794 [62 Cal.Rptr.
553], internal citation omitted.)
• Code of Civil Procedure section 1263.320(a) provides: “The fair market value
of the property taken is the highest price on the date of valuation that would be
agreed to by a seller, being willing to sell but under no particular or urgent
necessity for so doing, nor obliged to sell, and a buyer, being ready, willing,
and able to buy but under no particular necessity for so doing, each dealing
with the other with full knowledge of all the uses and purposes for which the
property is reasonably adaptable and available.”
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1722
4 Levy et al., California Torts, Ch. 50, Damages, §§ 50.01–50.03 (Matthew Bender)
1264
1265
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2005; Revised December 2009, December 2010, June 2011,
December 2016, May 2017
Directions for Use
This verdict form is based on CACI No. 2100, Conversion—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the case involves multiple items of personal property as to which the evidence
differs, users may need to modify question 2 to focus the jury on the different
items.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2101–VF-2199. Reserved for Future Use
1267
1269
the defendant’s conduct be wrongful apart from the interference with the
contract itself.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th
26, 55 [77 Cal.Rptr.2d 709, 960 P.2d 513], internal citations omitted.)
• “ ‘[A] person is not justified in inducing a breach of contract simply because he
is in competition with one of the parties to the contract and seeks to further his
own economic advantage at the expense of the other. [Citations.]’ This is
because, ‘[w]hatever interest society has in encouraging free and open
competition by means not in themselves unlawful, contractual stability is
generally accepted as of greater importance than competitive freedom.’ A party
may not, ‘under the guise of competition actively and affirmatively induce the
breach of a competitor’s contract.’ ” (I-CA Enterprises, Inc., supra, 235
Cal.App.4th at p. 290, internal citations omitted.)
• “We conclude that a plaintiff seeking to state a claim for intentional interference
with contract or prospective economic advantage because defendant induced
another to undertake litigation, must allege that the litigation was brought
without probable cause and that the litigation concluded in plaintiff’s favor.”
(Pacific Gas & Electric Co., supra, 50 Cal.3d at p. 1137.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 730–740
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§§ 40.110–40.117 (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.132 et seq. (Matthew Bender)
12 California Points and Authorities, Ch. 122, Interference, § 122.20 et seq.
(Matthew Bender)
1272
1275
1280
1281
1285
1287
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 741
14 Witkin, Summary of California Law (10th ed. 2005) Wills, § 553
Ross et al., California Practice Guide: Probate, Ch. 15-A, Will Contests, ¶ 15:115.6
et seq. (The Rutter Group)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.133[2][b] (Matthew Bender)
2206–2209. Reserved for Future Use
1288
1290
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2200, Inducing Breach of Contract.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
1292
1293
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 2201, Intentional Interference With
Contractual Relations—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
1295
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1296
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2202, Intentional Interference With
1298
1299
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was [name of defendant]’s wrongful conduct a substantial factor
in causing harm to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
1301
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2204, Negligent Interference With
Prospective Economic Relations.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2204–VF-2299. Reserved for Future Use
1302
1304
1306
1309
• Temporary life insurance coverage “is not terminated until the applicant
receives from the insurer both a notice of the rejection of his application and a
refund of his premium.” (Smith v. Westland Life Insurance Co. (1975) 15 Cal.3d
111, 120 [123 Cal.Rptr. 649, 539 P.2d 433].)
• “Under California law, a contract of temporary insurance may arise from
completion of an application for insurance and payment of the first premium if
the language of the application would lead an ordinary lay person to conclude
that coverage was immediate.” (Ahern v. Dillenback (1991) 1 Cal.App.4th 36,
47 [1 Cal.Rptr.2d 339] [automobile insurance].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, §§ 37–39
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 2:134–2:137, 6:428–6:448
2 California Insurance Law & Practice, Ch. 9, Issuance of Insurance Policies,
§ 9.07 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.19–120.20
(Matthew Bender)
1311
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 64
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Practice
And Procedure—Trial, ¶¶ 15:911–15:912 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.63
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.502
(Matthew Bender)
1313
1314
forming the basis of its claim is within the basic scope of insurance coverage.
And, once an insured has made this showing, the burden is on the insurer to
prove the claim is specifically excluded.’ . . . [¶] We see no reason not to apply
this rule to a policy that has been lost or destroyed without fraudulent intent on
the part of the insured. Thus, the claimant has the burden of proving (1) the fact
that he or she was insured under the lost policy during the period in issue, and
(2) the substance of each policy provision essential to the claim for relief, i.e.,
essential to the particular coverage that the insured claims. Which provisions
those are will vary from case to case; the decisions often refer to them simply
as the material terms of the lost policy. In turn, the insurer has the burden of
proving the substance of any policy provision ‘essential to the . . . defense,’
i.e., any provision that functions to defeat the insured’s claim. Those provisions,
too, will be case specific.” (Dart Industries, Inc., supra, 28 Cal.4th at p. 1068,
internal citations and footnotes omitted.)
• “A corollary of the rule that the contents of lost documents may be proved by
secondary evidence is that the law does not require the contents of such
documents be proved verbatim.” (Dart Industries, Inc., supra, 28 Cal.4th at p.
1069.)
• “The rule . . . for the admission of secondary evidence of a lost paper, requires
‘that a bona fide and diligent search has been unsuccessfully made for it in the
place where it was most likely to be found;’ and further, ‘the party is expected
to show that he has in good faith exhausted in a reasonable degree all the
sources of information and means of discovery which the nature of the case
would naturally suggest, and which were accessible to him.’ ” (Dart Industries,
Inc., supra, 28 Cal.4th at p. 1068, internal citation omitted.)
• “No fixed rule as to the necessary proof to establish loss [of a written
instrument], or what constitutes reasonable search, can be formulated. . . . The
sole object of such proof is to raise a reasonable presumption merely that the
instrument is lost, and this is a preliminary inquiry addressed to the discretion
of the judge.” (Kenniff v. Caulfield (1903) 140 Cal. 34, 41 [73 P. 803].)
• “Preliminary proof of the loss or destruction is required and it is committed to
the trial court’s discretion to determine whether the evidence so offered is or is
not sufficient.” (Guardianship of Levy (1955) 137 Cal.App.2d 237, 249 [290
P.2d 320].)
Secondary Sources
3 Witkin, California Evidence (4th ed. 2000) Presentation at Trial, §§ 48–50,
59–60, 63, 65
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 15-I, Trial,
¶¶ 15:978–15:994 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, § 8.8
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
1316
1317
You have heard evidence that the claimed loss was caused by a
combination of covered and excluded risks under the insurance policy.
When a loss is caused by a combination of covered and excluded risks
under the policy, the loss is covered only if the most important or
predominant cause is a covered risk.
[[Name of defendant] claims that [name of plaintiff]’s loss is not covered
because the loss was caused by a risk excluded under the policy. To
succeed, [name of defendant] must prove that the most important or
predominant cause of the loss was [describe excluded peril or event],
which is a risk excluded under the policy.]
[or]
[[Name of plaintiff] claims that the loss was caused by a risk covered
under the policy. To succeed, [name of plaintiff] must prove that the most
important or predominant cause of the loss was [describe covered peril
or event], which is a risk covered under the policy.]
in motion—is the cause to which the loss is to be attributed, though the other
causes may follow it, and operate more immediately in producing the disaster.”
(Sabella v. Wisler (1963) 59 Cal.2d 21, 31–32 [27 Cal.Rptr. 689, 377 P.2d 889],
internal quotation marks and citation omitted.)
• “Sabella defined ‘efficient proximate cause’ alternatively as the ‘one that sets
others in motion,’ and as ‘the predominating or moving efficient cause.’ We use
the term ‘efficient proximate cause’ (meaning predominating cause) when
referring to the Sabella analysis because we believe the phrase ‘moving cause’
can be misconstrued to deny coverage erroneously, particularly when it is
understood literally to mean the ‘triggering’ cause.” (Garvey v. State Farm Fire
& Casualty Co. (1989) 48 Cal.3d 395, 403 [257 Cal.Rptr. 292, 770 P.2d 704],
internal citations omitted.)
• “The efficient proximate cause referred to in Sabella has also been called the
predominant cause or the most important cause of the loss. ‘By focusing the
causal inquiry on the most important cause of a loss, the efficient proximate
cause doctrine creates a “workable rule of coverage that provides a fair result
within the reasonable expectations of both the insured and the insurer.” ’ ”
(Vardanyan v. AMCO Ins. Co. (2015) 243 Cal.App.4th 779, 787 [197
Cal.Rptr.3d 195], internal citation omitted.)
• “[T]he ‘cause’ of loss in the context of a property insurance contract is totally
different from that in a liability policy. This distinction is critical to the
resolution of losses involving multiple causes. Frequently property losses occur
which involve more than one peril that might be considered legally
significant. . . . ‘The task becomes one of identifying the most important cause
of the loss and attributing the loss to that cause.’ [¶] On the other hand, the
right to coverage in the third party liability insurance context draws on
traditional tort concepts of fault, proximate cause and duty.” (Garvey, supra, 48
Cal.3d at pp. 406–407, internal quotation marks, italics, and citations omitted.)
• “[I]n an action upon an all-risks policy (unlike a specific peril policy), the
insured does not have to prove that the peril proximately causing his loss was
covered by the policy. This is because the policy covers all risks save for those
risks specifically excluded by the policy. The insurer, though, since it is denying
liability upon the policy, must prove the policy’s noncoverage of the insured’s
loss—that is, that the insured’s loss was proximately caused by a peril
specifically excluded from the coverage of the policy.” (Vardanyan, supra, 243
Cal.App.4th at pp. 796−797, original italics.)
• “A policy cannot extend coverage for a specified peril, then exclude coverage
for a loss caused by a combination of the covered peril and an excluded peril,
without regard to whether the covered peril was the predominant or efficient
proximate cause of the loss. Other Coverage 9 identifies the perils that are
covered when the loss involves collapse. If any other peril contributes to the
loss, whether the loss is covered or excluded depends upon which peril is the
predominant cause of the loss. To the extent the term ‘caused only by one or
more’ of the listed perils can be construed to mean the contribution of any
1319
unlisted peril, in any way and to any degree, would result in the loss being
excluded from coverage, the provision is an unenforceable attempt to contract
around the efficient proximate cause doctrine. ¶ Accordingly, CACI No. 2306
. . . was the correct instruction to give to the jury.” Vardanyan, supra, 243
Cal.App.4th at p. 796.)
• “[T]he scope of coverage under an all-risk homeowner’s policy includes all
risks except those specifically excluded by the policy. When a loss is caused by
a combination of a covered and specifically excluded risks, the loss is covered
if the covered risk was the efficient proximate cause of the loss. . . . [T]he
question of what caused the loss is generally a question of fact, and the loss is
not covered if the covered risk was only a remote cause of the loss, or the
excluded risk was the efficient proximate, or predominate, cause.” (State Farm
Fire & Casualty Co. v. Von Der Lieth (1991) 54 Cal.3d 1123, 1131–1132 [2
Cal.Rptr.2d 183, 820 P.2d 285], internal citation omitted.)
• “[A]n insurer is not absolutely prohibited from drafting and enforcing policy
provisions that provide or leave intact coverage for some, but not all,
manifestations of a particular peril. This is, in fact, an everyday practice that
normally raises no questions regarding section 530 or the efficient proximate
cause doctrine.” (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th
747, 759 [27 Cal.Rptr.3d 648, 110 P.3d 903].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 6-E, First Party
Coverages—Causation Principles, ¶¶ 6:134–6:143, 6:253 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Analyzing Coverage: Reading and Interpreting Insurance Policies, § 3.42
3 California Insurance Law & Practice, Ch. 9, Homeowners and Related Policies,
§ 36.42 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.113
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, § 120.50 (Matthew
Bender)
1320
1323
New September 2003; Revised April 2004, October 2004, June 2015
Directions for Use
This instruction presents an insurer’s affirmative defense to a claim for coverage.
The defense is based on a misrepresentation or omission made by the insured in the
application for the insurance. (See Douglas v. Fid. Nat’l Ins. Co. (2014) 229
Cal.App.4th 392, 408 [177 Cal.Rptr.3d 271].) If the policy at issue is a standard
fire insurance policy, replace “intentionally or unintentionally” in element 2 with
“willfully.” (See Ins. Code, § 2071.) Otherwise, the insurer is not required to prove
an intent to deceive; negligence or inadvertence is enough if the misrepresentation
or omission is material. (Douglas, supra, 229 Cal.App.4th at p. 408.) Element 5
expresses materiality.
Element 3 applies only if plaintiff omitted information, not if he or she
misrepresented information.
While no intent to mislead is required, the insured must know the facts that
constitute the omission or misrepresentation (see element 4). For example, if the
application does not disclose that property on which insurance is sought is being
used commercially, the applicant must have known that the property is being used
commercially. (See Ins. Code, § 332.) It is not a defense, however, if the insured
gave incorrect or incomplete responses on the application because he or she failed
to appreciate the significance of some information known to him or her. (See
1324
Thompson v. Occidental Life Insurance Co. of California (1973) 9 Cal.3d 904, 916
[109 Cal.Rptr. 473, 513 P.2d 353].)
If it is alleged that omission occurred in circumstances other than a written
application, this instruction should be modified accordingly.
Sources and Authority
• Rescission of Contract. Civil Code section 1689(b)(1).
• Time of Insurer’s Rescission of Policy. Insurance Code section 650.
• Concealment by Failure to Communicate. Insurance Code section 330.
• Concealment Entitles Insurer to Rescind. Insurance Code section 331.
• Duty to Communicate in Good Faith. Insurance Code section 332.
• Materiality. Insurance Code section 334.
• Intentional Omission of Information Tending to Prove Falsity. Insurance Code
section 338.
• False Representation: Time for Rescission. Insurance Code section 359.
• “It is well established that material misrepresentations or concealment of
material facts in an application for insurance entitle an insurer to rescind an
insurance policy, even if the misrepresentations are not intentionally made.
Additionally, ‘[a] misrepresentation or concealment of a material fact in an
insurance application also establishes a complete defense in an action on the
policy. [Citations.] As with rescission, an insurer seeking to invalidate a policy
based on a material misrepresentation or concealment as a defense need not
show an intent to deceive. [Citations.]’ ” (Douglas, supra, 229 Cal.App.4th at p.
408, internal citations omitted.)
• “When the [automobile] insurer fails . . . to conduct . . . a reasonable
investigation [of insurability] it cannot assert . . . a right of rescission” under
section 650 of the Insurance Code as an affirmative defense to an action by an
injured third party. (Barrera v. State Farm Mutual Automobile Insurance Co.
(1969) 71 Cal.2d 659, 678 [79 Cal.Rptr. 106, 456 P.2d 674].)
• “[A]n insurer has a right to know all that the applicant for insurance knows
regarding the state of his health and medical history. Material misrepresentation
or concealment of such facts [is] grounds for rescission of the policy, and an
actual intent to deceive need not be shown. Materiality is determined solely by
the probable and reasonable effect [that] truthful answers would have had upon
the insurer. The fact that the insurer has demanded answers to specific questions
in an application for insurance is in itself usually sufficient to establish
materiality as a matter of law.” (Thompson, supra, 9 Cal.3d at pp. 915–916,
internal citations omitted.)
• “[A]lthough an insurer generally ‘has the right to rely on the applicant’s
answers without verifying their accuracy[,] . . . [¶] . . . [t]he insurer cannot
rely on answers given where the applicant-insured was misled by vague or
1325
1327
[Name of insurer] claims that [name of insured] [is not entitled to recover
under/is not entitled to benefits under] the insurance policy because [he/
she] made a false claim. To establish this claim, [name of insurer] must
prove all of the following:
1. That [name of insured] made a claim for insurance benefits under
a policy with [name of insurer];
2. That [name of insured] represented to [name of insurer] that
[insert allegedly false representation];
3. That [name of insured]’s representation was not true;
4. That [name of insured] knew that the representation was not
true;
5. That [name of insured] intended that [name of insurer] rely on this
representation in [investigating/paying] [name of insured]’s claim
for insurance benefits; and
6. That the representation that [insert allegedly false representation],
if true, would affect a reasonable insurance company’s
[investigation of/decision to pay] a claim for insurance benefits.
1329
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because it did not receive timely
notice of the [lawsuit/[insert other]]. To succeed, [name of defendant] must
prove both of the following:
1. That [name of plaintiff] did not give [name of defendant] notice [or
that [name of defendant] did not receive notice by some other
means] [within the time specified in the policy/within a
reasonable time] of the [lawsuit/[insert other]]; and
2. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to give timely notice.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, with timely notice, it would have [taken steps that would
have substantially reduced or eliminated [name of plaintiff]’s liability]
[or] [settled for a substantially smaller amount].
Cal.3d 865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
• “If the insurer asserts that the underlying claim is not a covered occurrence or
is excluded from basic coverage, then earlier notice would only result in earlier
denial of coverage. To establish actual prejudice, the insurer must show a
substantial likelihood that, with timely notice, and notwithstanding a denial of
coverage or reservation of rights, it would have settled the claim for less or
taken steps that would have reduced or eliminated the insured’s liability.”
(Safeco Ins. Co. of America v. Parks (2009) 170 Cal.App.4th 992, 1004 [88
Cal.Rptr.3d 730].)
• “California’s ‘notice-prejudice’ rule operates to bar insurance companies from
disavowing coverage on the basis of lack of timely notice unless the insurance
company can show actual prejudice from the delay. The rule was developed in
the context of ‘occurrence’ policies.” (Pacific Employers Insurance Co., supra,
221 Cal.App.3d at p. 1357.)
• “[The notice-prejudice rule] does not apply to every time limit on any insurance
policy. [¶] Where the policy provides that special coverage for a particular type
of claim is conditioned on express compliance with a reporting requirement, the
time limit is enforceable without proof of prejudice. Such reporting time limits
often are found in provisions for expanded liability coverage that the insurer
usually does not cover. The insurer makes an exception and extends special
coverage conditioned on compliance with a reporting requirement and other
conditions. The reporting requirement becomes ‘the written notice necessary to
trigger the expanded coverage afforded’ by the special policy provision.”
(Venoco, Inc. v. Gulf Underwriters Ins. Co. (2009) 175 Cal.App.4th 750, 760
[96 Cal.Rptr.3d 409], internal citations omitted.)
• “With respect to notice provisions, one Court of Appeal has explained: ‘[A]n
“occurrence” policy provides coverage for any acts or omissions that arise
during the policy period even though the claim is made after the policy has
expired.’ . . . [¶] . . . [¶] Occurrence policies were developed to provide
coverage for damage caused by collision, fire, war, and other identifiable
events. . . . Because the occurrence of these events was relatively easy to
ascertain, the insurer was able to ‘conduct a prompt investigation of the incident
. . . .’ . . . Notice provisions contained in such occurrence policies were
‘included to aid the insurer in investigating, settling, and defending claims[.]’
. . . If an insured breaches a notice provision, resulting in substantial prejudice
to the defense, the insurer is relieved of liability.” (Belz v. Clarendon America
Ins. Co. (2007) 158 Cal.App.4th 615, 626 [69 Cal.Rptr.3d 864], internal citation
omitted.)
• “The ‘general rule’ is that an insurer is not bound by a judgment unless it had
notice of the pendency of the action. . . . However, if an insurer denies
coverage to the insured, the insured’s contractual obligation to notify the insurer
ceases.” (Samson v. Transamerica Insurance Co. (1981) 30 Cal.3d 220, 238
[178 Cal.Rptr. 343, 636 P.2d 32], internal citations omitted.)
1331
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 15:917–15:920
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Identifying Sources of Coverage, §§ 8.24–8.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.65[1]–[9] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.500
(Matthew Bender)
1332
[Name of defendant] claims that it does not have to pay the [judgment
against/settlement by] [name of plaintiff] because [name of plaintiff] failed
to cooperate in [his/her/its] defense. To succeed, [name of defendant]
must prove all of the following:
1. That [name of plaintiff] failed to cooperate in the defense of the
lawsuit against [him/her/it];
2. That [name of defendant] used reasonable efforts to obtain [name
of plaintiff]’s cooperation; and
3. That [name of defendant] was prejudiced by [name of plaintiff]’s
failure to cooperate in [his/her/its] defense.
To establish prejudice, [name of defendant] must show a substantial
likelihood that, if [name of plaintiff] had cooperated, [name of defendant]
would have [taken steps that would have substantially reduced or
eliminated [name of plaintiff]’s liability] [or] [settled for a substantially
smaller amount].
• “[W]e apprehend that Campbell stands for these propositions: (1) that breach by
an insured of a cooperation . . . clause may not be asserted by an insurer
unless the insurer was substantially prejudiced thereby; (2) that prejudice is not
presumed as a matter of law from such breach; (3) that the burden of proving
prejudicial breach is on the insurer; and (4) that, although the issue of prejudice
is ordinarily one of fact, it may be established as a matter of law by the facts
proved.” (Northwestern Title Security Co. v. Flack (1970) 6 Cal.App.3d 134,
141 [85 Cal.Rptr. 693].)
• “ ‘[C]ooperation clauses serve an important purpose. “[A] condition of a policy
requiring the cooperation and assistance of the assured in opposing a claim or
an action lodged against him by an injured person is material to the risk and of
the utmost importance in a practical sense. Without such cooperation and
assistance the insurer is severely handicapped and may in some instances be
absolutely precluded from advancing any defense.” . . . “[S]uch provisions
‘enable the [insurer] to possess itself of all knowledge, and all information as to
other sources and means of knowledge, in regard to facts, material to [its]
rights, to enable [it] to decide upon [its] obligations, and to protect [itself]
against false claims.’ ” . . . Where an insured violates a cooperation clause, the
insurer’s performance is excused if its ability to provide a defense has been
substantially prejudiced.’ ” (Belz v. Clarendon America Ins. Co. (2007) 158
Cal.App.4th 615, 626 [69 Cal.Rptr.3d 864].)
• “[A]n insurer, in order to establish it was prejudiced by the failure of the
insured to cooperate in his defense, must establish at the very least that if the
cooperation clause had not been breached there was a substantial likelihood the
trier of fact would have found in the insured’s favor.” (Billington v.
Interinsurance Exchange of Southern California (1969) 71 Cal.2d 728, 737 [79
Cal.Rptr. 326, 456 P.2d 982].)
• “[I]f the trial court finds . . . that the insurer failed to diligently seek its
insured’s presence a finding that he breached the cooperation clause would not
be justified.” (Billington, supra, 71 Cal.2d at p. 744.)
• “[P]rejudice is not shown simply by displaying end results; the probability that
such results could or would have been avoided absent the claimed default or
error must also be explored.” (Clemmer v. Hartford Insurance Co. (1978) 22
Cal.3d 865, 883, fn. 12 [151 Cal.Rptr. 285, 587 P.2d 1098].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 15:917–15:919
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Insured’s Role in Defense, §§ 11.2–11.26
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§ 41.64[1]–[11] (Matthew Bender)
1334
[Name of defendant] claims that it does not have to pay [specify, e.g., the
amount of the settlement] because [name of plaintiff] made a voluntary
payment. To succeed on this defense, [name of defendant] must prove the
following:
1. [Select either or both of the following:]
1. [That [name of plaintiff] made a payment to [name of third party
claimant] in [partial/full] settlement of [name of third party
claimant]’s claim against [name of plaintiff]; [or]]
1. [That [name of plaintiff] [made a payment/ [or] assumed an
obligation/ [or] incurred an expense] to [name] with regard to
[name of third party claimant]’s claim against [name of plaintiff]];
1. AND
2. That [name of defendant] did not give its consent or approval for
the [payment/ [or] obligation/ [or] expense].
settlement and then maintain or assign an action against the insurer for breach
of the duty to defend. In the subsequent action the amount of the settlement will
be presumptive evidence of the amount of the insured’s liability.” (21st Century
Ins. Co., supra, 240 Cal.App.4th at p. 328, original italics.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 320
Croskey et al., California Practice Guide: Insurance Litigation ¶¶ 7:439.5–7:439.10
(The Rutter Group)
California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar), §§ 2.7,
3.27, 8.32, 11.14, 23.38
25 California Forms of Pleading and Practice, Ch. 300, Indemnity and
Contribution, § 300.73[6] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, §§ 308.500,
308.502 (Matthew Bender)
2323–2329. Reserved for Future Use
1337
damages, it would be pardoned and still retain the fruits of its offense.” (Pulte
Home Corp. v. American Safety Indemnity Co. (2017) 14 Cal.App.5th 1086,
1125 [223 Cal.Rptr.3d 47].)
• “For the insurer to fulfill its obligation not to impair the right of the insured to
receive the benefits of the agreement, it again must give at least as much
consideration to the latter’s interests as it does to its own.” (Egan v. Mutual of
Omaha Insurance Co. (1979) 24 Cal.3d 809, 818–819 [169 Cal.Rptr. 691, 620
P.2d 141].)
• “[T]o establish the insurer’s ‘bad faith’ liability, the insured must show that the
insurer has (1) withheld benefits due under the policy, and (2) that such
withholding was ‘unreasonable’ or ‘without proper cause.’ The actionable
withholding of benefits may consist of the denial of benefits due; paying less
than due; and/or unreasonably delaying payments due.” (Major v. Western Home
Ins. Co. (2009) 169 Cal.App.4th 1197, 1209 [87 Cal.Rptr.3d 556], internal
citations omitted.)
• “ ‘[T]he covenant of good faith can be breached for objectively unreasonable
conduct, regardless of the actor’s motive.’ . . . [A]n insured plaintiff need only
show, for example, that the insurer unreasonably refused to pay benefits or
failed to accept a reasonable settlement offer; there is no requirement to
establish subjective bad faith.” (Bosetti v. United States Life Ins. Co. in the City
of New York (2009) 175 Cal.App.4th 1208, 1236 [96 Cal.Rptr.3d 744], original
italics, internal citations omitted.)
• “Bad faith may involve negligence, or negligence may be indicative of bad
faith, but negligence alone is insufficient to render the insurer liable.” (Brown v.
Guarantee Ins. Co. (1957) 155 Cal.App.2d 679, 689 [319 P.2d 69].)
• “Thus, a breach of the implied covenant of good faith and fair dealing involves
something more than a breach of the contract or mistaken judgment. There must
be proof the insurer failed or refused to discharge its contractual duties not
because of an honest mistake, bad judgment, or negligence, ‘but rather by a
conscious and deliberate act, which unfairly frustrates the agreed common
purposes and disappoints the reasonable expectations of the other party thereby
depriving that party of the benefits of the agreement.’ ” (Century Surety Co. v.
Polisso (2006) 139 Cal.App.4th 922, 949 [43 Cal.Rptr.3d 468], internal citations
omitted.)
• “[I]f the insurer denies benefits unreasonably (i.e., without any reasonable basis
for such denial), it may be exposed to the full array of tort remedies, including
possible punitive damages.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th
1062, 1073 [56 Cal.Rptr.3d 312].)
• “Subterfuges and evasions violate the obligation of good faith in performance
even though the actor believes his conduct to be justified. But the obligation
goes further: bad faith may be overt or may consist of inaction, and fair dealing
may require more than honesty. A complete catalogue of types of bad faith is
impossible, but the following types are among those which have been
1339
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-C, Theory
Of Recovery—Breach Of Implied Covenant Of Good Faith And Fair Dealing (“Bad
Faith”), ¶¶ 12:27–12:54 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-D, Who
May Sue For Tortious Breach Of Implied Covenant (Proper Plaintiffs),
¶¶ 12:56–12:90.17 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-E, Persons
Who May Be Sued For Tortious Breach Of Implied Covenant (Proper Defendants),
¶¶ 12:92–12:118 (The Rutter Group)
Croskey, et al., California Practice Guide: Insurance Litigation, Ch. 12A-F,
Compare—Breach Of Implied Covenant By Insured, ¶¶ 12:119–12:121 (The Rutter
Group)
1 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar)
Overview of Rights and Obligations of Policy, §§ 2.9–2.15
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.01 (Matthew Bender)
1 California Uninsured Motorist Law, Ch. 13, Rights, Duties, and Obligations of
the Parties, § 13.23 (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, §§ 24.10, 24.20–24.21, 24.40 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24[1]
(Matthew Bender)
11 California Legal Forms, Ch. 26A, Title Insurance, § 26A.17[9] (Matthew
Bender)
1341
New September 2003; Revised December 2007, April 2008, December 2009,
December 2015
Directions for Use
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
If there is a genuine issue as to the insurer’s liability under the policy for the claim
asserted by the insured, there can be no bad-faith liability imposed on the insurer
for advancing its side of that dispute. This is known as the “genuine dispute”
doctrine. The genuine-dispute doctrine is subsumed within the test of
reasonableness or proper cause (element 3). No specific instruction on the doctrine
need be given. (See McCoy v. Progressive West Ins. Co. (2009) 171 Cal.App.4th
785, 792–794 [90 Cal.Rptr.3d 74].)
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
1342
1346
New September 2003; Revised December 2005, December 2007, April 2008,
December 2015, June 2016
Directions for Use
This instruction sets forth a claim for breach of the implied covenant of good faith
and fair dealing based on the insurer’s failure or refusal to conduct a proper
investigation of the plaintiff’s claim. The claim alleges that the insurer acted
unreasonably, that is, without proper cause, by failing to properly investigate the
claim. (See Rappaport-Scott v. Interinsurance Exch. of the Auto. Club (2007) 146
Cal.App.4th 831, 837 [53 Cal.Rptr.3d 245].)
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “[A]n insurer may breach the covenant of good faith and fair dealing when it
1347
medical foundation.” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713,
722 [68 Cal.Rptr.3d 746, 171 P.3d 1082], original italics.)
• “[W]hether an insurer breached its duty to investigate [is] a question of fact to
be determined by the particular circumstances of each case.” (Paulfrey v. Blue
Chip Stamps (1983) 150 Cal.App.3d 187, 196 [197 Cal.Rptr. 501].)
• “[L]iability in tort arises only if the conduct was unreasonable, that is, without
proper cause.” (Rappaport-Scott, supra, 146 Cal.App.4th at p. 837.)
• “[W]ithout actual presentation of a claim by the insured in compliance with
claims procedures contained in the policy, there is no duty imposed on the
insurer to investigate the claim.” (California Shoppers, Inc. v. Royal Globe
Insurance Co. (1985) 175 Cal.App.3d 1, 57 [221 Cal.Rptr. 171].)
• “It would seem reasonable that any responsibility to investigate on an insurer’s
part would not arise unless and until the threshold issue as to whether a claim
was filed, or a good faith effort to comply with claims procedure was made, has
been determined. In no event could an insured fail to keep his/her part of the
bargain in the first instance, and thereafter seek recovery for breach of a duty to
pay seeking punitive damages based on an insurer’s failure to investigate a
nonclaim.” (Paulfrey, supra, 150 Cal.App.3d at pp. 199–200.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, § 245
Croskey et al., California Practice Guide: Insurance Litigation, Chapter 12C-D, Bad
Faith—First Party Cases—Application—Matters Held “Unreasonable”
¶¶ 12:848–12:904 (The Rutter Group)
1 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Investigating the Claim, §§ 9.2, 9.14–9.22
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.04[1]–[3] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.11 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.153, 120.184
(Matthew Bender)
1349
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 11:46–11:47, 12:956–12:961
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.05 (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 24, Bad Faith in Uninsured Motorist
Law, § 24.22 (Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.383–120.384,
120.390 (Matthew Bender)
1352
New September 2003; Revised December 2007, June 2012, December 2012, June
2016
Directions for Use
This instruction is for use in an “excess judgment” case; that is one in which
judgment was against the insured for an amount over the policy limits, after the
insurer rejected a settlement demand within policy limits.
The instructions in this series assume that the plaintiff is the insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
If it is alleged that a demand was made in excess of limits and there is a claim that
1353
the defendant should have contributed the policy limits, then this instruction will
need to be modified.
This instruction should also be modified if the insurer did not accept the policy-
limits demand because of potential remaining exposure to the insured, such as a
contractual indemnity claim or exposure to other claimants.
Under this instruction, if the jury finds that the policy-limits demand was
reasonable, then the insurer is automatically liable for the entire excess judgment.
Language from the California Supreme Court supports this view of what might be
called insurer “strict liability” if the demand is reasonable. (See Johansen v.
California State Auto. Assn. Inter-Insurance Bureau (1975) 15 Cal.3d 9, 16 [123
Cal.Rptr. 288, 538 P.2d 744] [“[W]henever it is likely that the judgment against the
insured will exceed policy limits ‘so that the most reasonable manner of disposing
of the claim is a settlement which can be made within those limits, a consideration
in good faith of the insured’s interest requires the insurer to settle the claim,’ ”
italics added].)
However, there is language in numerous cases, including several from the
California Supreme Court, that would require the plaintiff to also prove that the
insurer’s rejection of the demand was “unreasonable.” (See, e.g., Hamilton v.
Maryland Cas. Co. (2002) 27 Cal.4th 718, 724–725 [117 Cal.Rptr.2d 318, 41 P.3d
128] [“An unreasonable refusal to settle may subject the insurer to liability for the
entire amount of the judgment rendered against the insured, including any portion
in excess of the policy limits,” italics added]; Graciano v. Mercury General Corp.
(2014) 231 Cal.App.4th 414, 425 [179 Cal.Rptr.3d 717] [claim for bad faith based
on an alleged wrongful refusal to settle also requires proof the insurer
unreasonably failed to accept an otherwise reasonable offer within the time
specified by the third party for acceptance, italics added].) Under this view, even if
the policy-limits demand was reasonable, the insurer may assert that it had a
legitimate reason for rejecting it. However, this option, if it exists, is not available
in a denial of coverage case. (Johansen, supra, 15 Cal.3d at pp. 15−16.)
None of these cases, however, neither those seemingly creating strict liability nor
those seemingly providing an opportunity for the insurer to assert that its rejection
was reasonable, actually discuss, analyze, and apply this standard to reach a result.
All are determined on other issues, leaving the pertinent language as arguably dicta.
For this reason, the committee has elected not to change the elements of the
instruction at this time. Hopefully, some day there will be a definitive resolution
from the courts. Until then, the need for an additional element requiring the
insurer’s rejection of the demand to have been unreasonable is a plausible, but
unsettled, requirement. For a thorough analysis of the issue, see the committee’s
report to the Judicial Council for its June 2016 meeting, found at https://jcc.legistar.
com/View.ashx?M=F&ID=4496094&GUID=53DBD55C-AF07-498F-B665-
D6BDD6DEFB28.
1354
Court (1999) 71 Cal.App.4th 782, 788 [84 Cal.Rptr.2d 43], internal citations
omitted.)
• “An insurer’s wrongful failure to settle may be actionable even without
rendition of an excess judgment. An insured may recover for bad faith failure to
settle, despite the lack of an excess judgment, where the insurer’s misconduct
goes beyond a simple failure to settle within policy limits or the insured suffers
consequential damages apart from an excess judgment.” (Howard v. American
National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 527 [115 Cal.Rptr.3d 42],
internal citations omitted.)
• “ ‘An insurer who denies coverage does so at its own risk and although its
position may not have been entirely groundless, if the denial is found to be
wrongful it is liable for the full amount which will compensate the insured for
all the detriment caused by the insurer’s breach of the express and implied
obligations of the contract.’ Accordingly, contrary to the defendant’s suggestion,
an insurer’s ‘good faith,’ though erroneous, belief in noncoverage affords no
defense to liability flowing from the insurer’s refusal to accept a reasonable
settlement offer.” (Johansen, supra, 15 Cal.3d at pp. 15−16, original italics,
footnotes and internal citation omitted.)
• “[W]here the kind of claim asserted is not covered by the insurance contract
(and not simply the amount of the claim), an insurer has no obligation to pay
money in settlement of a noncovered claim, because ‘The insurer does not . . .
insure the entire range of an insured’s well-being, outside the scope of and
unrelated to the insurance policy, with respect to paying third party
claims. . . .’ ” (Dewitt v. Monterey Ins. Co. (2012) 204 Cal.App.4th 233, 244
[138 Cal.Rptr.3d 705], original italics.)
• “A good faith belief in noncoverage is not relevant to a determination of the
reasonableness of a settlement offer.” (Samson v. Transamerica Insurance Co.
(1981) 30 Cal.3d 220, 243 [178 Cal.Rptr. 343, 636 P.2d 32], internal citation
omitted.)
• “An insurer that breaches its duty of reasonable settlement is liable for all the
insured’s damages proximately caused by the breach, regardless of policy limits.
Where the underlying action has proceeded to trial and a judgment in excess of
the policy limits has been entered against the insured, the insurer is ordinarily
liable to its insured for the entire amount of that judgment, excluding any
punitive damages awarded.” (Hamilton, supra, 27 Cal.4th at p. 725, internal
citations omitted.)
• “[I]nsurers do have a ‘selfish’ interest (that is, one that is peculiar to
themselves) in imposing a blanket rule which effectively precludes disclosure of
policy limits, and that interest can adversely affect the possibility that an excess
claim against a policyholder might be settled within policy limits. Thus, a
palpable conflict of interest exists in at least one context where there is no
formal settlement offer. We therefore conclude that a formal settlement offer is
not an absolute prerequisite to a bad faith action in the wake of an excess
1357
verdict when the claimant makes a request for policy limits and the insurer
refuses to contact the policyholder about the request.” (Boicourt v. Amex
Assurance Co. (2000) 78 Cal.App.4th 1390, 1398–1399 [93 Cal.Rptr.3d 763].)
• “For bad faith liability to attach to an insurer’s failure to pursue settlement
discussions, in a case where the insured is exposed to a judgment beyond policy
limits, there must be, at a minimum, some evidence either that the injured party
has communicated to the insurer an interest in settlement, or some other
circumstance demonstrating the insurer knew that settlement within policy limits
could feasibly be negotiated. In the absence of such evidence, or evidence the
insurer by its conduct has actively foreclosed the possibility of settlement, there
is no “opportunity to settle” that an insurer may be taxed with ignoring.” (Reid
v. Mercury Ins. Co. (2013) 220 Cal.App.4th 262, 272 [162 Cal.Rptr.3d 894].)
• “(4) [12:245] Insurer culpability required? A number of cases suggest that
some degree of insurer ‘culpability’ is required before an insurer’s refusal
to settle a third party claim can be found to constitute ‘bad faith.’ [Howard
v. American Nat’l Fire Ins. Co. (2010) 187 CA4th 498, 529, 115 CR3d 42, 69
(quoting text)]
(a) [12:246] Good faith or mistake as excuse: ‘If the insurer has exercised
good faith in all of its dealings . . . and if the settlement which it has rejected
has been fully and fairly considered and has been based upon an honest belief
that the insurer could defeat the action or keep any possible judgment within
the limits of the policy, and its judgments are based on a fair review of the
evidence after reasonable diligence in ascertaining the facts, and upon sound
legal advice, a court should not subject the insurer to further liability if it
ultimately turns out that its judgment is a mistaken judgment.’ [See Brown v.
Guarantee Ins. Co. (1957) 155 CA2d 679, 684, 319 P2d 69, 72 (emphasis
added); Howard v. American Nat’l Fire Ins. Co., supra, 187 CA4th at 529, 115
CR3d at 69—‘an insurer may reasonably underestimate the value of a case, and
thus refuse settlement’ on this basis (acknowledging but not applying rule)]
‘In short, so long as insurers are not subject to a strict liability standard, there
is still room for an honest, innocent mistake.’ [Walbrook Ins. Co. Ltd. v. Liberty
Mut. Ins. Co. (1992) 5 CA4th 1445, 1460, 7 CR2d 513, 521]
1) [12:246.1] Comment: These cases are difficult to reconcile with the
‘only permissible consideration’ standard of a ‘reasonable settlement
demand’ set out in Johansen and CACI 2334 (see ¶ 12:235.1). A possible
explanation is that these cases address the ‘reasonableness’ of the insurer’s
refusal to settle based on a dispute as to the value of the case (or other
matters unrelated to coverage), whereas Johansen addressed
‘reasonableness’ in the context of a coverage dispute (see ¶ 12:235). [See
Howard v. American Nat’l Fire Ins. Co., supra, 187 CA4th at 529, 115 CR3d
at 69 (quoting text)]” (Croskey et al., California Practice Guide: Insurance
Litigation, Ch. 12B-B, Bad Faith Refusal To Settle, ¶¶ 12:245–12:246.1 (The
Rutter Group), bold in original.)
1358
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance, §§ 257–258
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-A, Implied
Covenant Liability—Introduction, ¶¶ 12:202–12:224 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-B, Bad
Faith Refusal To Settle, ¶¶ 12:226–12:548 (The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-C, Bad
Faith Liability Despite Settlement Of Third Party Claims, ¶¶ 12:575–12:581.12
(The Rutter Group)
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 12B-D, Refusal
To Defend Cases, ¶¶ 12:582–12:686, (The Rutter Group)
2 California Liability Insurance Practice: Claims and Litigation (Cont.Ed.Bar)
Actions for Failure to Settle, §§ 26.1–26.35
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.07[1]–[3] (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.24
(Matthew Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.195, 120.199,
120.205, 120.207 (Matthew Bender)
1359
[Name of defendant] did not breach the obligation of good faith and fair
dealing if it reasonably relied on the advice of its lawyer. [Name of
defendant]’s reliance was reasonable if:
1. [Name of defendant] acted in reliance on the opinion and advice
of its lawyer;
2. The lawyer’s advice was based on full disclosure by [name of
defendant] of all relevant facts that it knew, or could have
discovered with reasonable effort;
3. [Name of defendant] reasonably believed the advice of the lawyer
was correct; [and]
4. In relying on its lawyer’s advice, [name of defendant] gave at least
as much consideration to [name of plaintiff]’s interest as it gave
its own interest; [and]
[5. [Name of defendant] was willing to reconsider and act accordingly
when it determined that the lawyer’s advice was incorrect.]
1362
New October 2004; Revised December 2007, December 2014, December 2015
Directions for Use
The instructions in this series assume that the plaintiff is an insured and the
defendant is the insurer. The party designations may be changed if appropriate to
the facts of the case.
The court will decide the issue of whether the claim was potentially covered by the
policy. (See California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175
Cal.App.3d 1, 52 [221 Cal.Rptr. 171].) If coverage depends on an unresolved
dispute over a factual question, the very existence of that dispute establishes a
possibility of coverage and thus a duty to defend. (North Counties Engineering,
Inc. v. State Farm General Ins. Co. (2014) 224 Cal.App.4th 902, 922 [169
Cal.Rptr.3d 726].) Therefore, the jury does not resolve factual disputes that
determine coverage.
For instructions regarding general breach of contract issues, refer to the Contracts
series (CACI No. 300 et seq.).
Sources and Authority
• “A breach of the duty to defend in itself constitutes only a breach of contract,
but it may also violate the covenant of good faith and fair dealing where it
involves unreasonable conduct or an action taken without proper cause. On the
1363
other hand, ‘[i]f the insurer’s refusal to defend is reasonable, no liability will
result.’ ” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. 78
Cal.App.4th 847, 881 [93 Cal.Rptr.2d 364], internal citations omitted.)
• “To prevail in an action seeking declaratory relief on the question of the duty to
defend, ‘the insured must prove the existence of a potential for coverage, while
the insurer must establish the absence of any such potential. In other words, the
insured need only show that the underlying claim may fall within policy
coverage; the insurer must prove it cannot.’ The duty to defend exists if the
insurer ‘becomes aware of, or if the third party lawsuit pleads, facts giving rise
to the potential for coverage under the insuring agreement.’ ” (Delgado v.
Interinsurance Exchange of Automobile Club of Southern California (2009) 47
Cal.4th 302, 308 [97 Cal.Rptr.3d 298, 211 P.3d 1083], original italics, internal
citation omitted.)
• “ ‘[A]n insurer has a duty to defend an insured if it becomes aware of, or if the
third party lawsuit pleads, facts giving rise to the potential for coverage under
the insuring agreement. . . . This duty . . . is separate from and broader than
the insurer’s duty to indemnify. . . .’ ‘ “[F]or an insurer, the existence of a duty
to defend turns not upon the ultimate adjudication of coverage under its policy
of insurance, but upon those facts known by the insurer at the inception of a
third party lawsuit. . . . Hence, the duty ‘may exist even where coverage is in
doubt and ultimately does not develop.’ . . .” . . .’ ” (State Farm Fire &
Casualty Co. v. Superior Court (2008) 164 Cal.App.4th 317, 323 [78
Cal.Rptr.3d 828], internal citations omitted.)
• “If any facts stated or fairly inferable in the complaint, or otherwise known or
discovered by the insurer, suggest a claim potentially covered by the policy, the
insurer’s duty to defend arises and is not extinguished until the insurer negates
all facts suggesting potential coverage. On the other hand, if, as a matter of law,
neither the complaint nor the known extrinsic facts indicate any basis for
potential coverage, the duty to defend does not arise in the first instance.”
(GGIS Ins. Services, Inc. v. Superior Court (2008) 168 Cal.App.4th 1493, 1506
[86 Cal.Rptr.3d 515].)
• “A duty to defend can be extinguished only prospectively and not
retrospectively.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc.
(2016) 6 Cal.App.5th 1258, 1284 [212 Cal.Rptr.3d 231].)
• “[F]acts known to the insurer and extrinsic to the third party complaint can
generate a duty to defend, even though the face of the complaint does not
reflect a potential for liability under the policy. [Citation.] This is so because
current pleading rules liberally allow amendment; the third party plaintiff cannot
be the arbiter of coverage.” (Tidwell Enterprises, Inc. v. Financial Pacific Ins.
Co., Inc. (2016) 6 Cal.App.5th 100, 106 [210 Cal.Rptr.3d 634].)
• “An insurer does not have a continuing duty to investigate the potential for
coverage if it has made an informed decision on coverage at the time of tender.
However, where the information available at the time of tender shows no
1364
coverage, but information available later shows otherwise, a duty to defend may
then arise.” (American States Ins. Co. v. Progressive Casualty Ins. Co. (2009)
180 Cal.App.4th 18, 26 [102 Cal.Rptr.3d 591], internal citations omitted.)
• “The duty does not depend on the labels given to the causes of action in the
underlying claims against the insured; ‘instead it rests on whether the alleged
facts or known extrinsic facts reveal a possibility that the claim may be covered
by the policy.’ ” (Travelers Property Casualty Co. of America v. Charlotte
Russe Holding, Inc. (2012) 207 Cal.App.4th 969, 976 [144 Cal.Rptr.3d 12],
original italics, disapproved on other grounds in Hartford Casualty Ins. Co. v.
Swift Distribution, Inc. (2014) 59 Cal.4th 277, 295 [172 Cal.Rptr.3d 653, 326
P.3d 253].)
• “The obligation of the insurer to defend is of vital importance to the insured.
‘In purchasing his insurance the insured would reasonably expect that he would
stand a better chance of vindication if supported by the resources and expertise
of his insurer than if compelled to handle and finance the presentation of his
case. He would, moreover, expect to be able to avoid the time, uncertainty and
capital outlay in finding and retaining an attorney of his own.’ ‘The insured’s
desire to secure the right to call on the insurer’s superior resources for the
defense of third party claims is, in all likelihood, typically as significant a
motive for the purchase of insurance as is the wish to obtain indemnity for
possible liability.’ ” (Amato v. Mercury Casualty Co. (Amato II) (1997) 53
Cal.App.4th 825, 831–832 [61 Cal.Rptr.2d 909], internal citations omitted.)
• “An anomalous situation would be created if, on the one hand, an insured can
sue for the tort of breach of the implied covenant if the insurer accepts the
defense and later refuses a reasonable settlement offer, but, on the other hand,
an insured is denied tort recovery if the insurer simply refuses to defend. . . .
This dichotomy could have the effect of encouraging an insurer to stonewall the
insured at the outset by simply refusing to defend.” (Campbell v. Superior
Court (1996) 44 Cal.App.4th 1308, 1319–1320 [52 Cal.Rptr.2d 385].)
• “[T]he mere existence of a legal dispute does not create a potential for
coverage: ‘However, we have made clear that where the third party suit never
presented any potential for policy coverage, the duty to defend does not arise in
the first instance, and the insurer may properly deny a defense. Moreover, the
law governing the insurer’s duty to defend need not be settled at the time the
insurer makes its decision.’ ” (Griffın Dewatering Corp. v. Northern Ins. Co. of
New York (2009) 176 Cal.App.4th 172, 209 [97 Cal.Rptr.3d 568], original
italics.)
• “The trial court erroneously thought that because the case law was ‘unsettled’
when the insurer first turned down the claim, that unsettledness created a
potential for a covered claim. . . . [I]f an insurance company’s denial of
coverage is reasonable, as shown by substantial case law in favor of its
position, there can be no bad faith even though the insurance company’s
position is later rejected by our state Supreme Court.” (Griffın Dewatering
Corp., supra, 176 Cal.App.4th at p. 179, original italics.)
1365
1366
(2007) 148 Cal.App.4th 1062, 1078 [56 Cal.Rptr.3d 312], internal citations
omitted.)
Include only the factors that are relevant to the case.
Sources and Authority
• Bad-Faith Insurance Practices. Insurance Code section 790.03.
• “[Plaintiff] was not seeking to recover on a claim based on a violation of
Insurance Code section 790.03, subdivision (h). Rather, her claim was based on
a claim of common law bad faith arising from [defendant]’s breach of the
implied covenant of good faith and fair dealing which she is entitled to pursue.
[Plaintiff]’s reliance upon the [expert’s] declaration was for the purpose of
providing evidence supporting her contention that [defendant] had breached the
implied covenant by its actions. This is a proper use of evidence of an insurer’s
violations of the statute and the corresponding regulations.” (Jordan, supra, 148
Cal.App.4th at p. 1078, original italics, internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Insurance §§ 252, 253, 255,
321
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 14-A, Statutory
and Administrative Regulation—The California Regulator, ¶ 14:109 et seq. (The
Rutter Group)
1 California Liability Insurance Practice: Claims and Litigation, Ch. 24, General
Principles of Contract and Bad Faith (Cont.Ed.Bar) § 24.30 et seq.
26 California Forms of Pleading and Practice, Ch. 308, Insurance, § 308.25
(Matthew Bender)
1 Rushing et al., Matthew Bender Practice Guide: California Unfair Competition
and Business Torts, Ch. 2, Unfair Competition, 2.11 (Matthew Bender)
2338–2349. Reserved for Future Use
1369
For instructions on damages for pain and suffering, see CACI No. 3905, Items of
Noneconomic Damage, and CACI No. 3905A, Physical Pain, Mental Suffering,
and Emotional Distress (Noneconomic Damage). For instructions on punitive
damages, see other instructions in the Damages series.
Sources and Authority
• “When an insurer’s tortious conduct reasonably compels the insured to retain an
attorney to obtain the benefits due under a policy, it follows that the insurer
should be liable in a tort action for that expense. The attorney’s fees are an
economic loss—damages—proximately caused by the tort.” (Brandt v. Superior
Court (1985) 37 Cal.3d 813, 817 [210 Cal.Rptr. 211, 693 P.2d 796].)
• “The fees recoverable . . . may not exceed the amount attributable to the
attorney’s efforts to obtain the rejected payment due on the insurance contract.
Fees attributable to obtaining any portion of the plaintiff’s award which exceeds
the amount due under the policy are not recoverable. [¶] Since the attorney’s
fees are recoverable as damages, the determination of the recoverable fees must
be made by the trier of fact unless the parties stipulate otherwise.” (Brandt,
supra, 37 Cal.3d at p. 819.)
• “If . . . the matter is to be presented to the jury, the court should instruct along
the following lines: ‘If you find (1) that the plaintiff is entitled to recover on his
cause of action for breach of the implied covenant of good faith and fair
dealing, and (2) that because of such breach it was reasonably necessary for the
plaintiff to employ the services of an attorney to collect the benefits due under
the policy, then and only then is the plaintiff entitled to an award for attorney’s
fees incurred to obtain the policy benefits, which award must not include
attorney’s fees incurred to recover any other portion of the verdict.’ ” (Brandt,
supra, 37 Cal.3d at p. 820.)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 13:120–13:144
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
General Principles of Contract and Bad Faith Actions, §§ 24.70–24.71
2 California Insurance Law & Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.03[5][c] (Matthew Bender)
2 California Uninsured Motorist Law, Ch. 25, Uninsured Motorist Bad Faith
Litigation, §§ 25.40–25.44 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
1371
triable issue of material fact that it can. It must be allowed the attempt.” (Buss,
supra, 16 Cal.4th at p. 61.)
• “By law applied in hindsight, courts can determine that no potential for
coverage, and thus no duty to defend, ever existed. If that conclusion is
reached, the insurer, having reserved its right, may recover from its insured the
costs it expended to provide a defense which, under its contract of insurance, it
was never obliged to furnish.” (Scottsdale Ins. Co. v. MV Transportation (2005)
36 Cal.4th 643, 658 [31 Cal.Rptr.3d 147, 115 P.3d 460].)
• “The ultimate determination that the loss was caused by a noncovered
occurrence does not mean that [third party]’s lawsuit (and [developer]’s cross-
complaint) never presented any potential for policy coverage. If that were so, a
determination an insurer has no duty to indemnify would automatically
extinguish the duty to defend retrospectively and give the insurer the right to
seek reimbursement from the insured. That result is inconsistent with the firmly
established principle that the duty to defend is broader than the duty to
indemnify.” (Navigators Specialty Ins. Co. v. Moorefield Construction, Inc.
(2016) 6 Cal.App.5th 1258, 1285 [212 Cal.Rptr.3d 231], original italics.)
• “ ‘Under the policy, the insurer does not have a duty to defend the insured as to
the claims that are not even potentially covered. With regard to defense costs
for these claims, the insurer has not been paid premiums by the insured. It did
not bargain to bear these costs. . . . The “enrichment” of the insured by the
insurer through the insurer’s bearing of unbargained-for defense costs is
inconsistent with the insurer’s freedom under the policy and therefore must be
deemed ‘unjust.’ ” If [insurer], after providing an entire defense, can prove that
a claim was ‘not even potentially covered because it did not even possibly
embrace any triggering harm of the specified sort within its policy period or
periods caused by an included occurrence,’ it should have that opportunity. This
task ‘ “if ever feasible,” may be “extremely difficult.” ’ ” (State v. Pac. Indem.
Co. (1998) 63 Cal.App.4th 1535, 1550 [75 Cal.Rptr.2d 69], internal citations
omitted.)
• “The cases which have considered apportionment of attorneys’ fees upon the
wrongful refusal of an insurer to defend an action against its insured generally
have held that the insurer is liable for the total amount of the fees despite the
fact that some of the damages recovered in the action against the insured were
outside the coverage of the policy.” (Hogan, supra, 3 Cal.3d at p. 564.)
• “The insurer, not the insured, has the burden of proving by a preponderance of
the evidence that ‘the settlement payments were allocable to claims not actually
covered, and the defense costs were allocable to claims not even potentially
covered.’ ” (Navigators Specialty Ins. Co, supra, 6 Cal.App.5th at p. 1287.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Insurance, § 381
2 California Insurance Law and Practice, Ch. 13, Claims Handling and the Duty of
Good Faith, § 13.08 (Matthew Bender)
1373
1374
[Name of plaintiff] claims that [name of defendant] must pay [all or part
of] a judgment against [name of insured]. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of plaintiff] brought a lawsuit for [personal injury/
wrongful death/property damage] against [name of insured] and a
judgment was entered against [name of insured];
2. That [all or part of] [name of insured]’s liability under the
judgment is covered by an insurance policy with [name of
defendant]; and
3. The amount of the judgment [covered by the policy].
third party may directly sue an insurer only when there has been an assignment
of rights by, or a final judgment against, the insured.” (Shaolian v. Safeco
Insurance Co. (1999) 71 Cal.App.4th 268, 271 [83 Cal.Rptr.2d 702], internal
citations omitted.)
• “Under section 11580 a third party claimant bringing a direct action against an
insurer should . . . prove 1) it obtained a judgment for bodily injury, death, or
property damage, 2) the judgment was against a person insured under a policy
that insures against [the] loss or damage . . . , 3) the liability insurance policy
was issued by the defendant insurer, 4) the policy covers the relief awarded in
the judgment, 5) the policy either contains a clause that authorizes the claimant
to bring an action directly against the insurer or the policy was issued or
delivered in California and insures against [the] loss or damage . . . .” (Wright,
supra, 11 Cal.App.4th at p. 1015.)
• “Under Insurance Code section 11580, a third party creditor bringing a direct
action against an insurer to recover the proceeds of an insurance policy must
plead and prove not only that it obtained a judgment for bodily injury, but that
‘the judgment was against a person insured under a policy . . .’ and ‘the policy
covers the relief awarded in the judgment . . . .’ ” (Miller v. American Home
Assurance Co. (1996) 47 Cal.App.4th 844, 847–848 [54 Cal.Rptr.2d 765],
original italics, internal citation omitted.)
• “[Insurance Code Section 11580(b)(2)] and the standard policy language permit
an action against an insurer only when the underlying judgment is final and
‘final,’ for this purpose, means an appeal from the underlying judgment has
been concluded or the time within which to appeal has passed.” (McKee v.
National Union Fire Insurance Co. of Pittsburgh, PA. (1993) 15 Cal.App.4th
282, 285 [19 Cal.Rptr.2d 286].)
• “[W]here the insurer may be subject to a direct action under Insurance Code
section 11580 by a judgment creditor who has or will obtain a default judgment
in a third party action against the insured, intervention is appropriate. . . .
Where an insurer has failed to intervene in the underlying action or to move to
set aside the default judgment, the insurer is bound by the default judgment.”
(Reliance Insurance Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386–387
[100 Cal.Rptr.2d 807], internal citations omitted.)
• “The [standard] ‘no action’ clause gives the insurer the right to control the
defense of the claim—to decide whether to settle or to adjudicate the claim on
its merits. When the insurer provides a defense to its insured, the insured has no
right to interfere with the insurer’s control of the defense, and a stipulated
judgment between the insured and the injured claimant, without the consent of
the insurer, is ineffective to impose liability upon the insurer.” (Safeco Ins. Co.
of Am. v. Superior Court (1999) 71 Cal.App.4th 782, 787 [84 Cal.Rptr.2d 43],
internal citations omitted.)
• A standard “no action” clause in an indemnity insurance policy “provides that
[the insurer] may be sued directly if the amount of the insured’s obligation to
1376
pay was finally determined either by judgment against the insured after actual
trial or by ‘written agreement of the insured, the claimant and the company.’ ”
(Rose v. Royal Insurance Co. of America (1991) 2 Cal.App.4th 709, 716–717 [3
Cal.Rptr.2d 483].)
• “[A] trial does not have to be adversarial to be considered an ‘actual trial’ under
the ‘no action’ clause, or to be considered binding against the insurer in a
section 11580 proceeding. . . . [W]e conclude that the term ‘actual trial’ in the
standard ‘no action’ clause has two components: (1) an independent
adjudication of facts based on an evidentiary showing; and (2) a process that
does not create the potential for abuse, fraud or collusion.” (National Union
Fire Insurance Co. v. Lynette C. (1994) 27 Cal.App.4th 1434, 1449 [33
Cal.Rptr.2d 496].)
• “A defending insurer cannot be bound by a settlement made without its
participation and without any actual commitment on its insured’s part to pay the
judgment, even where the settlement has been found to be in good faith for
purposes of [Code of Civil Procedure] section 877.6.” (Hamilton v. Maryland
Casualty Co. (2002) 27 Cal.4th 718, 730 [117 Cal.Rptr.2d 318, 41 P.3d 128].)
• “[W]hen . . . a liability insurer wrongfully denies coverage or refuses to
provide a defense, then the insured is free to negotiate the best possible
settlement consistent with his or her interests, including a stipulated judgment
accompanied by a covenant not to execute. Such a settlement will raise an
evidentiary presumption in favor of the insured (or the insured’s assignee) with
respect to the existence and amount of the insured’s liability. The effect of such
presumption is to shift the burden of proof to the insurer to prove that the
settlement was unreasonable or the product of fraud or collusion. If the insurer
is unable to meet that burden of proof then the stipulated judgment will be
binding on the insurer and the policy provision proscribing a direct action
against an insurer except upon a judgment against the insured after an ‘actual
trial’ will not bar enforcement of the judgment.” (Pruyn v. Agricultural
Insurance Co. (1995) 36 Cal.App.4th 500, 509 [42 Cal.Rptr.2d 295].)
Secondary Sources
Croskey et al., California Practice Guide: Insurance Litigation (The Rutter Group)
¶¶ 15:1028–15:1077, 15:1123–15:1136
2 California Liability Insurance Practice: Claims & Litigation (Cont.Ed.Bar)
Claimant’s Direct Action for Recovery of Judgment, §§ 27.1–27.7, 27.17–27.27
4 California Insurance Law & Practice, Ch. 41, Liability Insurance in General,
§§ 41.60–41.63 (Matthew Bender)
26 California Forms of Pleading and Practice, Ch. 308, Insurance (Matthew
Bender)
12 California Points and Authorities, Ch. 120, Insurance, §§ 120.186, 120.198,
120.206 (Matthew Bender)
1377
1379
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1380
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, April 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2331, Breach of the Implied Obligation of
Good Faith and Fair Dealing—Failure or Delay in Payment (First
Party)—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1382
1383
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2333, Bad Faith (First Party)—Breach of
Duty to Inform Insured of Rights—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1385
1386
1388
1390
• “The length of time the plaintiff remained on the job may be one relevant factor
in determining the intolerability of employment conditions from the standpoint
of a reasonable person. Neither logic nor precedent suggests it should always be
dispositive.” (Turner, supra, 7 Cal.4th at p. 1254, original italics.)
• “ ‘Good cause’ or ‘just cause’ for termination connotes ‘ “a fair and honest
cause or reason,” ’ regulated by the good faith of the employer. The term is
relative. Whether good cause exists is dependent upon the particular
circumstances of each case. In deciding whether good cause exists, there must
be a balance between the employer’s interest in operating its business efficiently
and profitably and the employee’s interest in continued employment. Care must
be exercised so as not to interfere with the employer’s legitimate exercise of
managerial discretion. While the scope of such discretion is substantial, it is not
unrestricted. Good cause is not properly found where the asserted reasons for
discharge are ‘trivial, capricious, unrelated to business needs or goals, or
pretextual.’ Where there is a contract to terminate only for good cause, the
employer has no right to terminate for an arbitrary or unreasonable decision.”
(Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 994 [6
Cal.Rptr.2d 184], internal citations omitted, abrogated on another ground in
Guz, supra, 24 Cal.4th at p. 351.)
• “The general rule is that the measure of recovery by a wrongfully discharged
employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment.” (Parker v.
Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737,
474 P.2d 689], internal citations omitted.)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 4:2, 4:8, 4:15, 4:65,
4:81, 4:105, 4:270–4:273 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.4–8.20B
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, §§ 60.05, 60.07 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.10, 249.15, 249.43, 249.90, Ch. 250,
Employment Law: Wage and Hour Disputes, § 250.66 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.10, 50.11 (Matthew
Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.22, 100.28, 100.29, 100.31 (Matthew
Bender)
California Civil Practice: Employment Litigation §§ 6:9–6:11 (Thomson Reuters)
2402. Revoked November 2018.
1394
(Stillwell v. The Salvation Army (2008) 167 Cal.App.4th 360, 380 [84
Cal.Rptr.3d 111], internal citations omitted.)
• “[M]ost cases applying California law . . . have held that an at-will provision
in an express written agreement, signed by the employee, cannot be overcome
by proof of an implied contrary understanding.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 340 fn. 10 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original
italics.)
• “Where there is no express agreement, the issue is whether other evidence of
the parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of
an actual mutual understanding on particular terms and conditions of
employment. If such evidence logically permits conflicting inferences, a
question of fact is presented.” (Guz, supra, 24 Cal.4th at p. 337, internal
citations omitted.)
• “The question whether such an implied-in-fact agreement [to termination only
for cause] exists is a factual question for the trier of fact unless the undisputed
facts can support only one reasonable conclusion.” (Faigin, supra, 211
Cal.App.4th at p. 739.)
• “In the employment context, factors apart from consideration and express terms
may be used to ascertain the existence and content of an employment
agreement, including ‘the personnel policies or practices of the employer, the
employee’s longevity of service, actions or communications by the employer
reflecting assurances of continued employment, and the practices of the industry
in which the employee is engaged.’ ” (Foley v. Interactive Data Corp. (1988)
47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765 P.2d 373], internal citation omitted.)
• “[A]n employee’s mere passage of time in the employer’s service, even where
marked with tangible indicia that the employer approves the employee’s work,
cannot alone form an implied-in-fact contract that the employee is no longer at
will. Absent other evidence of the employer’s intent, longevity, raises and
promotions are their own rewards for the employee’s continuing valued service;
they do not, in and of themselves, additionally constitute a contractual guarantee
of future employment security.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 341–342 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original italics.)
• “We agree that disclaimer language in an employee handbook or policy manual
does not necessarily mean an employee is employed at will. But even if a
handbook disclaimer is not controlling in every case, neither can such a
provision be ignored in determining whether the parties’ conduct was intended,
and reasonably understood, to create binding limits on an employer’s statutory
right to terminate the relationship at will. Like any direct expression of
employer intent, communicated to employees and intended to apply to them,
such language must be taken into account, along with all other pertinent
evidence, in ascertaining the terms on which a worker was employed.” (Guz,
supra, 24 Cal.4th at p. 340, internal citations omitted.)
• “Conceptually, there is no rational reason why an employer’s policy that its
1396
employees will not be demoted except for good cause, like a policy restricting
termination or providing for severance pay, cannot become an implied term of
an employment contract. In each of these instances, an employer promises to
confer a significant benefit on the employee, and it is a question of fact whether
that promise was reasonably understood by the employee to create a contractual
obligation.” (Scott v. Pac. Gas & Elec. Co. (1995) 11 Cal.4th 454, 464 [46
Cal.Rptr.2d 427, 904 P.2d 834].)
• “[Employer] retained the right to terminate [employee] for any lawful reason.
Thus, . . . the fact that [employer] was obligated to pay compensation if it
terminated [employee] for reasons other than his misconduct did not convert an
otherwise at-will agreement into a for-cause agreement.” (Popescu v. Apple Inc.
(2016) 1 Cal.App.5th 39, 59 [204 Cal.Rptr.3d 302].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 233, 237, 238
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:81, 4:105, 4:112 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.6–8.16
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.05[2][a]–[e] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.01, 249.13, 249.15, 249.50 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.21, 100.22, 100.25–100.27, 100.29, 100.34
(Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:14–6:16 (Thomson Reuters)
1397
that are not trivial, arbitrary or capricious, unrelated to business needs or goals,
or pretextual.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830,
872 [172 Cal.Rptr.3d 732], internal citations omitted.)
• “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 . . . .” (Jameson, supra, 16 Cal.App.5th at p. 911.)
• “The term is relative. Whether good cause exists is dependent upon the
particular circumstances of each case. In deciding whether good cause exists,
there must be a balance between the employer’s interest in operating its
business efficiently and profitably and the employee’s interest in continued
employment. Care must be exercised so as not to interfere with the employer’s
legitimate exercise of managerial discretion. . . . Where there is a contract to
terminate only for good cause, the employer has no right to terminate for an
arbitrary or unreasonable decision.” (Walker v. Blue Cross of California (1992)
4 Cal.App.4th 985, 994 [6 Cal.Rptr.2d 184], internal citations omitted,
abrogated on another ground in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 351 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)
• “ ‘Cotran did not delineate the earmarks of an appropriate investigation but
noted that investigative fairness contemplates listening to both sides and
providing employees a fair opportunity to present their position and to correct
or contradict relevant statements prejudicial to their case, without the procedural
formalities of a trial.’ [Citation] [¶] . . . Although the elements of the Cotran
standard are triable to the jury, ‘if the facts are undisputed or admit of only one
conclusion, then summary judgment may be entered . . . .’ ” (Jameson, supra,
16 Cal.App.5th at p. 910.)
• “[W]here, as here, the employee occupies a sensitive managerial or confidential
position, the employer must of necessity be allowed substantial scope for the
exercise of subjective judgment.” (Pugh v. See’s Candies, Inc. (Pugh I) (1981)
116 Cal.App.3d 311, 330 [171 Cal.Rptr. 917], disapproved on other grounds in
Guz, supra, 24 Cal.4th at pp. 350–351.)
• “[G]ood cause” in [the context of wrongful termination based on an implied
contract] “is quite different from the standard applicable in determining the
propriety of an employee’s termination under a contract for a specified term.”
(Pugh, supra, 116 Cal.App.3d at p. 330.)
• “We have held that appellant has demonstrated a prima facie case of wrongful
termination in violation of his contract of employment. The burden of coming
forward with evidence as to the reason for appellant’s termination now shifts to
the employer. Appellant may attack the employer’s offered explanation, either
on the ground that it is pretextual (and that the real reason is one prohibited by
contract or public policy, or on the ground that it is insufficient to meet the
employer’s obligations under contract or applicable legal principles. Appellant
bears, however, the ultimate burden of proving that he was terminated
wrongfully.” (Pugh, supra, 116 Cal.App.3d at pp. 329–330, internal citation
1399
omitted.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 219–221, 244
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 4:270–4:273, 4:300 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.25
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21[14][c], 249.63 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.22, 100.27, 100.29, 100.34 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
1400
[Name of plaintiff] claims that [name of defendant] did not have good
cause to [discharge/demote] [him/her] for misconduct. [Name of
defendant] had good cause to [discharge/demote] [name of plaintiff] for
misconduct if [name of defendant], acting in good faith, conducted an
appropriate investigation giving [him/her/it] reasonable grounds to
believe that [name of plaintiff] engaged in misconduct.
An appropriate investigation is one that is reasonable under the
circumstances and includes notice to the employee of the claimed
misconduct and an opportunity for the employee to answer the charge
of misconduct before the decision to [discharge/demote] is made. You
may find that [name of defendant] had good cause to [discharge/demote]
[name of plaintiff] without deciding if [name of plaintiff] actually engaged
in misconduct.
had engaged in the misconduct.’ ‘Cotran did not delineate the earmarks of an
appropriate investigation but noted that investigative fairness contemplates
listening to both sides and providing employees a fair opportunity to present
their position and to correct or contradict relevant statements prejudicial to their
case, without the procedural formalities of a trial.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 872–873 [172 Cal.Rptr.3d 732], internal
citations omitted.)
• “We have held that appellant has demonstrated a prima facie case of wrongful
termination in violation of his contract of employment. The burden of coming
forward with evidence as to the reason for appellant’s termination now shifts to
the employer. Appellant may attack the employer’s offered explanation, either
on the ground that it is pretextual and that the real reason is one prohibited by
contract or public policy, or on the ground that it is insufficient to meet the
employer’s obligations under contract or applicable legal principles. Appellant
bears, however, the ultimate burden of proving that he was terminated
wrongfully.” (Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311, 329–330
[171 Cal.Rptr. 917], disapproved on other grounds in Guz v. Bechtel National
Inc. (2000) 24 Cal.4th 317, 350−351 [100 Cal. Rptr. 2d 352, 8 P.3d 1089],
internal citation omitted.)
• “[Plaintiff] contends that it was up to a jury to decide whether the [defendant]
‘honestly and objectively reasonably’ believed that her conduct was egregious
enough to be ‘gross misconduct’ and that the court therefore erred in granting
summary adjudication of her fourth cause of action for breach of contract.
Although the elements of the Cotran standard are triable to the jury, ‘if the
facts are undisputed or admit of only one conclusion, then summary judgment
may be entered . . . .’ ” (Serri, supra, 226 Cal.App.4th at p. 873.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 208, 209
Chin et al., Cal. Practice Guide: Employment Litigation ¶¶ 4:270–4:271, 4:289 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.09[5][b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.21, 249.43 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.25, 100.29 (Matthew Bender)
California Civil Practice: Employment Litigation, § 6:19 (Thomson Reuters)
1402
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment. However,
before projected earnings from other employment opportunities not sought or
accepted by the discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or substantially similar,
to that of which the employee has been deprived; the employee’s rejection of or
failure to seek other available employment of a different or inferior kind may
not be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-
Fox Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689],
internal citations omitted.)
• “[I]t is our view that in an action for wrongful discharge, and pursuant to the
present day concept of employer-employee relations, the term ‘wages’ should be
deemed to include not only the periodic monetary earnings of the employee but
also the other benefits to which he is entitled as a part of his compensation.”
(Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463
P.2d 426].)
• In determining the period that plaintiff’s employment was reasonably certain to
have continued, the trial court took into consideration plaintiff’s “ ‘physical
condition, his age, his propensity for hard work, his expertise in managing
defendants’ offices, the profit history of his operation, [and] the foreseeability of
the continued future demand for tax return service to small taxpayers . . . .’ ”
(Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr.
169].)
• In cases for wrongful demotion, the measure of damages is “the difference in
compensation before and after the demotion.” (Scott v. Pac. Gas & Elec. Co.
(1995) 11 Cal.4th 454, 468 [46 Cal.Rptr.2d 427, 904 P.2d 834].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 267, 268
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 17-B, Contract
Damages, ¶¶ 17:81, 17:95, 17:105 (The Rutter Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[3] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.01, 249.17, 249.50 (Matthew Bender)
2407–2419. Reserved for Future Use
1404
• “Stated simply, the contract compensation for the unexpired period of the
contract affords a prima facie measure of damages; the actual measured
damage, however, is the contract amount reduced by compensation received
during the unexpired term; if, however, such other compensation has not been
received, the contract amount may still be reduced or eliminated by a showing
that the employee, by the exercise of reasonable diligence and effort, could have
procured comparable employment and thus mitigated the damages.” (Erler v.
Five Points Motors, Inc. (1967) 249 Cal.App.2d 560, 562 [57 Cal.Rptr. 516].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation ¶¶ 4:2, 4:47 (The
Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.2–8.20
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
1406
who has a contract for a specified term may not be terminated prior to the
term’s expiration based on an honest but mistaken belief that the employee
breached the contract: Such a right would treat a contract with a specified term
no better than an implied contract that has no term; such a right would dilute
the enforceability of the contract’s specified term because an employee who had
properly performed his or her contract could still be terminated before the
term’s end; and such a right would run afoul of the plain language of Labor
Code section 2924, which allows termination of an employment for a specified
term only ‘in case of any willful breach of duty . . . habitual neglect of . . .
duty or continued incapacity to perform it.’ Termination of employment for a
specified term, before the end of the term, based solely on the mistaken belief
of a breach, cannot be reconciled with either the governing statute’s text or
settled principles of contract law.” (Khajavi, supra, 84 Cal.App.4th at pp.
38–39.)
• Good cause in the context of wrongful termination based on an implied contract
“ ‘is quite different from the standard applicable in determining the propriety of
an employee’s termination under a contract for a specified term.’ ” (Khajavi,
supra, 84 Cal.App.4th at p. 58, internal citations omitted.)
• “An employer is justified in discharging his employee, when the latter fails to
perform his duty, even though injury does not result to the employer as a result
of the employee’s failure to do his duty.” (Bank of America National Trust &
Savings Ass’n v. Republic Productions, Inc. (1941) 44 Cal.App.2d 651, 654 [112
P.2d 972], internal citation omitted.)
• “To terminate an employment without the expiration of its contractual term
‘there must be good cause.’ The grounds for terminating such an employment
are stated in Labor Code section 2924. . . . It is therefore not every deviation
of the employee from the standard of performance sought by his employer that
will justify a discharge. There must be some ‘wilful act or wilful misconduct
. . .’ when the employee uses his best efforts to serve the interests of his
employer.” (Holtzendorff v. Housing Authority of the City of Los Angeles (1967)
250 Cal.App.2d 596, 610 [58 Cal.Rptr. 886], internal citation omitted.)
• “ ‘Willful’ disobedience of a specific, peremptory instruction of the master, if
the instruction be reasonable and consistent with the contract, is a breach of
duty—a breach of the contract of service; and, like any other breach of the
contract, of itself entitles the master to renounce the contract of employment.”
(May v. New York Motion Picture Corp. (1920) 45 Cal.App. 396, 403 [187 P.
785].)
• “An employment agreement that specifies the length of employment (e.g., two
years) limits the employer’s right to discharge the employee within that period.
Unless the agreement provides otherwise (e.g., by reserving the right to
discharge for cause), the employer may terminate employment for a specified
term only for [the grounds specified in Labor Code section 2924].” (Chin et al.,
California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶ 4:47 (The Rutter Group)
1408
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 4-A, Employment
Presumed At Will, ¶¶ 4:2, 4:47, 4:56, 4:57 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements
Limiting At-Will Termination, ¶¶ 4:47, 4:56, 4:57 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract
Actions, §§ 8.22–8.26
4 Wilcox, California Employment Law, Ch. 62, Avoiding Wrongful Termination and
Discipline Claims, § 62.02 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.13, 249.21, 249.60–249.63 (Matthew Bender)
1409
• “The trial court correctly found that defendants wrongfully terminated the
employment contract and that the measure of damages was the difference
between the amount Silva would have received under the contract and that
amount which Silva actually received from his other employment.” (Silva v.
McCoy (1968) 259 Cal.App.2d 256, 260 [66 Cal.Rptr. 364].)
• “The plaintiff has the burden of proving his damage. The law is settled that he
has the duty of minimizing that damage. While the contract wages are prima
facie [evidence of] his damage, his actual damage is the amount of money he
was out of pocket by reason of the wrongful discharge.” (Erler v. Five Points
Motors, Inc., supra, 249 Cal.App.2d at pp. 567–568.)
• “The burden of proof is on the party whose breach caused damage, to establish
matters relied on to mitigate damage.” (Steelduct Co. v. Henger-Seltzer Co.
(1945) 26 Cal.2d 634, 654 [160 P.2d 804], internal citations omitted.)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 17:81, 17:95, 17:105, 17:495
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
1411
1414
[Name of defendant] claims that [he/she/it] did not breach the duty to act
fairly and in good faith because [he/she/it] believed that there was a
legitimate and reasonable business purpose for the conduct.
To succeed, [name of defendant] must prove both of the following:
1. That [his/her/its] conduct was based on an honest belief that
[insert alleged mistake]; and
2. That, if true, [insert alleged mistake] would have been a legitimate
and reasonable business purpose for the conduct.
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.30 (Matthew Bender)
2425–2429. Reserved for Future Use
1416
New September 2003; Revised June 2013, June 2014, December 2014, November
2018
Directions for Use
The judge should determine whether the purported reason for firing the plaintiff
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged
conduct would constitute a public-policy violation if proved.
Note that there are two causation elements. First, there must be causation between
the public policy violation and the discharge (element 3). This instruction uses the
term “substantial motivating reason” to express this causation element.
“[S]ubstantial motivating reason” has been held to be the appropriate standard for
cases alleging termination in violation of public policy. (Alamo v. Practice
Management Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d
758]; see Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152
Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason”
Explained.) Element 5 then expresses a second causation requirement; that the
plaintiff was harmed as a result of the wrongful discharge.
If plaintiff alleges he or she was forced or coerced to resign, then CACI No. 2431,
Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate
Public Policy, or CACI No. 2432, Constructive Discharge in Violation of Public
1417
• “[T]he cases in which violations of public policy are found generally fall into
four categories: (1) refusing to violate a statute; (2) performing a statutory
obligation (3) exercising a statutory right or privilege; and (4) reporting an
alleged violation of a statute of public importance.” (Gantt, supra, 1 Cal.4th at
pp. 1090–1091, internal citations and footnote omitted, overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046]; accord Stevenson, supra, 16 Cal.4th at p. 889.)
• “[T]ermination of an employee most clearly violates public policy when it
contravenes the provision of a statute forbidding termination for a specified
reason . . . .” (Diego, supra, 231 Cal.App.4th at p. 926)
• “[Discharge because of employee’s] [r]efusal to violate a governmental
regulation may also be the basis for a tort cause of action where the
administrative regulation enunciates a fundamental public policy and is
authorized by statute.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th
702, 708–709 [96 Cal.Rptr.3d 159].)
• “In the context of a tort claim for wrongful discharge, tethering public policy to
specific constitutional or statutory provisions serves not only to avoid judicial
interference with the legislative domain, but also to ensure that employers have
adequate notice of the conduct that will subject them to tort liability to the
employees they discharge . . . .” (Stevenson, supra, 16 Cal.4th at p. 889.)
• “[A]n employee need not prove an actual violation of law; it suffices if the
employer fired him for reporting his ‘reasonably based suspicions’ of illegal
activity.” (Green, supra, 19 Cal.4th at p. 87, internal citation omitted.)
• “[A]n employer’s authority over its employee does not include the right to
demand that the employee commit a criminal act to further its interests, and an
employer may not coerce compliance with such unlawful directions by
discharging an employee who refuses to follow such an order. . . .” (Tameny,
supra, 27 Cal.3d at p. 178.)
• “[T]here is a ‘fundamental public interest in a workplace free from illegal
practices . . . .’ ‘[T]he public interest is in a lawful, not criminal, business
operation. Attainment of this objective requires that an employee be free to call
his or her employer’s attention to illegal practices, so that the employer may
prevent crimes from being committed by misuse of its products by its
employees.’ ” (Yau, supra, 229 Cal.App.4th at p. 157.)
• “An action for wrongful termination in violation of public policy ‘can only be
asserted against an employer. An individual who is not an employer cannot
commit the tort of wrongful discharge in violation of public policy; rather, he or
she can only be the agent by which an employer commits that tort.’ ” (Kim v.
Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351 [172
Cal.Rptr.3d 686], original italics.)
• Employees in both the private and public sector may assert this claim. (See
Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 [4 Cal.Rptr.2d 203].)
1419
[Name of plaintiff] claims that [he/she] was forced to resign rather than
commit a violation of public policy. It is a violation of public policy
[specify claim in case, e.g., for an employer to require that an employee
engage in price fixing]. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] required [name of plaintiff] to [specify
alleged conduct in violation of public policy, e.g., “engage in price
fixing”];
3. That this requirement was so intolerable that a reasonable
person in [name of plaintiff]’s position would have had no
reasonable alternative except to resign;
4. That [name of plaintiff] resigned because of this requirement;
5. That [name of plaintiff] was harmed; and
6. That the requirement was a substantial factor in causing [name
of plaintiff]’s harm.
1422
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§ 222
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G,
Constructive Discharge, ¶¶ 4:405–4:406, 4:409–4:410, 4:421–4:422 (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-A, Wrongful
Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:2, 5:45–5:47, 5:50,
5:70, 5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.45–5.46
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.31, 100.35–100.38 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)
1425
would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992)
1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other
grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78
Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged
conduct would constitute a public-policy violation if proved.
Whether conditions are so intolerable as to justify the employee’s decision to quit
rather than endure them is to be judged by an objective reasonable-employee
standard. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247 [32
Cal.Rptr.2d 223, 876 P.2d 1022].) This standard is captured in element 4. The
paragraph at the end of the instruction gives the jury additional guidance as to what
makes conditions intolerable. (See id. at p. 1247.) Note that in some circumstances,
a single intolerable incident, such as a crime of violence against an employee by an
employer, or an employer’s ultimatum that an employee commit a crime, may
constitute a constructive discharge. (Id. at p. 1247, fn.3.)
Sources and Authority
• “[W]hen an employer’s discharge of an employee violates fundamental
principles of public policy, the discharged employee may maintain a tort action
and recover damages traditionally available in such actions.” (Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “[T]his court established a set of requirements that a policy must satisfy to
support a tortious discharge claim. First, the policy must be supported by either
constitutional or statutory provisions. Second, the policy must be ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely the
interests of the individual. Third, the policy must have been articulated at the
time of the discharge. Fourth, the policy must be ‘fundamental’ and
‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890
[66 Cal.Rptr.2d 888, 941 P.2d 1157], fn. omitted.)
• “In addition to statutes and constitutional provisions, valid administrative
regulations may also serve as a source of fundamental public policy that
impacts on an employer’s right to discharge employees when such regulations
implement fundamental public policy found in their enabling statutes.” (D’sa v.
Playhut, Inc. (2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal
citation omitted.)
• “Plaintiffs assert, in essence, that they were terminated for refusing to engage in
conduct that violated fundamental public policy, to wit, nonconsensual sexual
acts. They also assert, in effect, that they were discharged in retaliation for
attempting to exercise a fundamental right—the right to be free from sexual
assault and harassment. Under either theory, plaintiffs, in short, should have
been granted leave to amend to plead a cause of action for wrongful discharge
in violation of public policy.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 91 [276
Cal.Rptr. 130, 801 P.2d 373].)
• “Constructive discharge occurs when the employer’s conduct effectively forces
an employee to resign. Although the employee may say, ‘I quit,’ the
1427
1429
Element 4 uses the term “substantial motivating reason” to express both intent and
causation between the the employee’s military service and the discharge.
“Substantial motivating reason” has been held to be the appropriate standard under
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
to cases alleging military service discrimination under section 394 has not been
addressed by the courts. However, military and veteran status is now a protected
category under the FEHA. (See Gov. Code, § 12940(a).
Sources and Authority
• Discrimination Against Members of the Military. Military and Veterans Code
section 394.
• Military and Veteran Status Protected Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “[I]ndividual employees may not be held personally liable under section 394 for
alleged discriminatory acts that arise out of the performance of regular and
necessary personnel management duties.” (Haligowski v. Superior Court (2011)
200 Cal.App.4th 983, 998 [134 Cal. Rptr. 3d 214].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 355, 426
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
2442–2499. Reserved for Future Use
1431
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1433
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1435
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1437
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1439
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
1441
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1444
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2430, Wrongful Discharge in Violation of
Public Policy—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
1446
findings that are required in order to calculate the amount of prejudgment interest.
1447
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2431, Constructive Discharge in Violation
of Public Policy—Plaintiff Required to Violate Public Policy.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
1449
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1450
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
1452
1453
1457
New September 2003; Revised April 2009, June 2011, June 2012, June 2013
Directions for Use
This instruction is intended for use when a plaintiff alleges disparate treatment
discrimination under the FEHA against an employer or other covered entity.
Disparate treatment occurs when an employer treats an individual less favorably
than others because of the individual’s protected status. In contrast, disparate
impact (the other general theory of discrimination) occurs when an employer has an
employment practice that appears neutral but has an adverse impact on members of
a protected group. For disparate impact claims, see CACI No. 2502, Disparate
Impact—Essential Factual Elements.
If element 1 is given, the court may need to instruct the jury on the statutory
definition of “employer” under the FEHA. Other covered entities under the FEHA
1458
• “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].)
• “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
1460
1463
be unable to perform safely and efficiently the duties of the job involved.’ ”
(Bohemian Club, supra, 187 Cal.App.3d at p. 19, quoting Weeks v. Southern
Bell Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, 235.)
• “First, the employer must demonstrate that the occupational qualification is
‘reasonably necessary to the normal operation of [the] particular business.’
Secondly, the employer must show that the categorical exclusion based on [the]
protected class characteristic is justified, i.e., that ‘all or substantially all’ of the
persons with the subject class characteristic fail to satisfy the occupational
qualification.” (Johnson Controls, Inc. v. Fair Employment & Housing Com.
(1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158], quoting Weeks, supra, 408
F.2d at p. 235.)
• “Even if an employer can demonstrate that certain jobs require members of one
sex, the employer must also ‘bear the burden of proving that because of the
nature of the operation of the business they could not rearrange job
responsibilities . . .’ in order to reduce the BFOQ necessity.” (Johnson
Controls, Inc., supra, 218 Cal.App.3d at p. 541; see Hardin v. Stynchcomb (11th
Cir. 1982) 691 F.2d 1364, 1370–1371.)
• “Alternatively, the employer could establish that age was a legitimate proxy for
the safety-related job qualifications by proving that it is ‘impossible or highly
impractical’ to deal with the older employees on an individualized basis.”
(Western Airlines, Inc. v. Criswell (1985) 472 U.S. 400, 414–415 [105 S.Ct.
2743, 86 L.Ed.2d 321], internal citation and footnote omitted.)
• “The Fair Employment and Housing Commission has interpreted the BFOQ
defense in a manner incorporating all of the federal requirements necessary for
its establishment. . . . [¶] The standards of the Commission are . . . in
harmony with federal law regarding the availability of a BFOQ defense.”
(Bohemian Club, supra, 187 Cal.App.3d at p. 19.)
• “By modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term
to qualifications that affect an employee’s ability to do the job.” (International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, UAW, supra, 499 U.S. at p. 201.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 925
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 9:2380, 9:2382, 9:2400, 9:2430
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 2.91–2.94
2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal
Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.54[4], 115.101 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:84 (Thomson Reuters)
1465
1467
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A,
Employment Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:530, 7:531, 7:535
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.21 (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[4] (Matthew Bender)
California Civil Practice: Employment Litigation, § 2:23 (Thomson Reuters)
1468
1470
1472
New September 2003; Revised August 2007, April 2008, October 2008, April 2009,
June 2010, June 2012, December 2012, June 2013, June 2014, June 2016,
December 2016
Directions for Use
In elements 1 and 3, describe the protected activity in question. Government Code
section 12940(h) provides that it is unlawful to retaliate against a person “because
the person has opposed any practices forbidden under [Government Code sections
12900 through 12966] or because the person has filed a complaint, testified, or
1473
Joaquin promotion to the rank of sergeant.” The committee believes that the
instruction as given is correct for the intent element in a retaliation case. (Cf.
Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 127–132 [199
Cal.Rptr.3d 462] [for disability discrimination, “substantial motivating reason” is
only language required to express intent].) However, in cases such as Joaquin that
involve allegations of a prohibited motivating reason (based on a report of sexual
harassment) and a permitted motivating reason (based on a good faith belief that
the report was falsified), the instruction may need to be modified to make it clear
that plaintiff must prove that defendant acted based on the prohibited motivating
reason and not the permitted motivating reason.
Sources and Authority
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• Retaliation for Requesting Reasonable Accommodation for Religious Practice
and Disability Prohibited. Government Code section 12940(l)(4), (m)(2).
• “Person” Defined Under Fair Employment and Housing Act. Government Code
section 12925(d).
• Prohibited Retaliation. Title 2 California Code of Regulations section 11021.
• “[I]n order to establish a prima facie case of retaliation under the FEHA, a
plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment action, and (3) a
causal link existed between the protected activity and the employer’s action.
Once an employee establishes a prima facie case, the employer is required to
offer a legitimate, nonretaliatory reason for the adverse employment action. If
the employer produces a legitimate reason for the adverse employment action,
the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden
shifts back to the employee to prove intentional retaliation.” (Yanowitz, supra,
36 Cal.4th at p. 1042, internal citations omitted.)
• “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court,
that is charged with determining the facts.” (McCoy v. Pacific Maritime Assn.
(2013) 216 Cal.App.4th 283, 299 [156 Cal.Rptr.3d 851].)
• “It is well established that a plaintiff in a retaliation case need only prove that a
retaliatory animus was at least a substantial or motivating factor in the adverse
employment decision.” (George v. California Unemployment Ins. Appeals Bd.
(2009) 179 Cal.App.4th 1475, 1492 [102 Cal.Rptr.3d 431].)
• “Retaliation claims are inherently fact-specific, and the impact of an employer’s
action in a particular case must be evaluated in context. Accordingly, although
an adverse employment action must materially affect the terms, conditions, or
privileges of employment to be actionable, the determination of whether a
particular action or course of conduct rises to the level of actionable conduct
should take into account the unique circumstances of the affected employee as
well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at p.
1052.)
1475
• “Notifying one’s employer of one’s medical status, even if such medical status
constitutes a ‘disability’ under FEHA, does not fall within the protected activity
identified in subdivision (h) of section 12940—i.e., it does not constitute
engaging in opposition to any practices forbidden under FEHA or the filing of a
complaint, testifying, or assisting in any proceeding under FEHA.” (Moore v.
Regents of University of California (2016) 248 Cal.App.4th 216, 247 [206
Cal.Rptr.3d 841].)
• “[Plaintiff]’s advocacy for the disabled community and opposition to elimination
of programs that might benefit that community do not fall within the definition
of protected activity. [Plaintiff] has not shown the [defendant]’s actions
amounted to discrimination against disabled citizens, but even if they could be
so construed, discrimination by an employer against members of the general
public is not a prohibited employment practice under the FEHA.” (Dinslage v.
City and County of San Francisco (2016) 5 Cal.App.5th 368, 383 [209
Cal.Rptr.3d 809], original italics.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the
conditions of employment. The refusal to promote [plaintiff] is an adverse
employment action under FEHA. There was also a pattern of conduct, the
totality of which constitutes an adverse employment action. This includes
undeserved negative job reviews, reductions in his staff, ignoring his health
concerns and acts which caused him substantial psychological harm.” (Wysinger,
supra, 157 Cal.App.4th at p. 424, internal citations omitted.)
• “A long period between an employer’s adverse employment action and the
employee’s earlier protected activity may lead to the inference that the two
events are not causally connected. But if between these events the employer
engages in a pattern of conduct consistent with a retaliatory intent, there may be
a causal connection.” (Wysinger, supra, 157 Cal.App.4th at p. 421, internal
citation omitted.)
• “Both direct and circumstantial evidence can be used to show an employer’s
intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made
by decisionmakers displaying a retaliatory motive.’ Circumstantial evidence
typically relates to such factors as the plaintiff’s job performance, the timing of
events, and how the plaintiff was treated in comparison to other workers.”
(Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 [119 Cal.Rptr.2d
131], internal citations omitted.)
• “The retaliatory motive is ‘proved by showing that plaintiff engaged in
protected activities, that his employer was aware of the protected activities, and
that the adverse action followed within a relatively short time thereafter.’ ‘The
causal link may be established by an inference derived from circumstantial
evidence, “such as the employer’s knowledge that the [employee] engaged in
protected activities and the proximity in time between the protected action and
allegedly retaliatory employment decision.” ’ ” (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 615 [262 Cal.Rptr. 842], internal citations
omitted.)
1477
• “[A]n employer generally can be held liable for the retaliatory actions of its
supervisors.” (Wysinger, supra, 157 Cal.App.4th at p. 420.)
• “Plaintiff, although a partner, is a person whom section 12940, subdivision (h)
protects from retaliation for opposing the partnership-employer’s harassment
against those employees.” (Fitzsimons v. California Emergency Physicians
Medical Group (2012) 205 Cal.App.4th 1423, 1429 [141 Cal.Rptr.3d 265].)
• “[A]n employer may be found to have engaged in an adverse employment
action, and thus liable for retaliation under section 12940(h), ‘by permitting
. . . fellow employees to punish [him] for invoking [his] rights.’ We therefore
hold that an employer may be held liable for coworker retaliatory conduct if the
employer knew or should have known of coworker retaliatory conduct and
either participated and encouraged the conduct, or failed to take reasonable
actions to end the retaliatory conduct.” (Kelley v. The Conco Cos. (2011) 196
Cal.App.4th 191, 213 [126 Cal.Rptr.3d 651], internal citation omitted.)
• “[T]he employer is liable for retaliation under section 12940, subdivision (h),
but nonemployer individuals are not personally liable for their role in that
retaliation.” (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158, 1173 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
• “ ‘The legislative purpose underlying FEHA’s prohibition against retaliation is
to prevent employers from deterring employees from asserting good faith
discrimination complaints . . . .’ Employer retaliation against employees who
are believed to be prospective complainants or witnesses for complainants
undermines this legislative purpose just as effectively as retaliation after the
filing of a complaint. To limit FEHA in such a way would be to condone ‘an
absurd result’ that is contrary to legislative intent. We agree with the trial court
that FEHA protects employees against preemptive retaliation by the employer.”
(Steele, supra, 162 Cal.App.4th at p. 1255, internal citations omitted.)
• “ ‘The plaintiff’s burden is to prove, by competent evidence, that the employer’s
proffered justification is mere pretext; i.e., that the presumptively valid reason
for the employer’s action was in fact a coverup. . . . In responding to the
employer’s showing of a legitimate reason for the complained-of action, the
plaintiff cannot “ ‘simply show the employer’s decision was wrong, mistaken,
or unwise. Rather, the employee ‘ “must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them “unworthy of credence,” . . . and hence infer “that
the employer did not act for the [asserted] non-discriminatory reasons.” ’ ” ’ ”
(Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1409 [194
Cal.Rptr.3d 689].)
• “The showing of pretext, while it may indicate retaliatory intent or animus, is
not the sole means of rebutting the employer’s evidence of nonretaliatory intent.
‘ “While ‘pretext’ is certainly a relevant issue in a case of this kind, making it a
central or necessary issue is not sound. The central issue is and should remain
1478
1479
liability or limits available relief where, after a termination, the employer learns
for the first time about employee wrongdoing that would have led to the
discharge in any event. Employee wrongdoing in after-acquired-evidence cases
generally falls into one of two categories: (1) misrepresentations on a resume or
job application; or (2) posthire, on-the-job misconduct.” (Camp v. Jeffer,
Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632 [41 Cal.Rptr.2d
329].)
• “The after-acquired-evidence doctrine serves as a complete or partial defense to
an employee’s claim of wrongful discharge . . . To invoke this doctrine, ‘. . .
the employer must establish “that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the
employer had known of it” . . . [T]he employer . . . must show that such a
firing would have taken place as a matter of “settled” company policy.’ ”
(Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 842, 845–846 [77
Cal.Rptr.2d 12], internal citations omitted.)
• “Where an employer seeks to rely upon after-acquired evidence of wrongdoing,
it must first establish that the wrongdoing was of such severity that the
employee in fact would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge.” (McKennon v. Nashville
Banner Publishing Co. (1995) 513 U.S. 352, 362–363 [115 S.Ct. 879, 130
L.Ed.2d 852].)
• “Courts must tread carefully in applying the after-acquired-evidence doctrine to
discrimination claims . . . . Where, as here, the discriminatory conduct was
pervasive during the term of employment, therefore, it would not be sound
public policy to bar recovery for injuries suffered while employed. In applying
the after-acquired-evidence doctrine, the equities between employer and
employee can be balanced by barring all portions of the employment
discrimination claim tied to the employee’s discharge.” (Murillo, supra, 65
Cal.App.4th at pp. 849–850.)
• “As the Supreme Court recognized in McKennon, the use of after-acquired
evidence must ‘take due account of the lawful prerogatives of the employer in
the usual course of its business and the corresponding equities that it has arising
from the employee’s wrongdoing.’ We appreciate that the facts in McKennon
. . . presented a situation where balancing the equities should permit a finding
of employer liability—to reinforce the importance of antidiscrimination
laws—while limiting an employee’s damages—to take account of an employer’s
business prerogatives. However, the equities compel a different result where an
employee who is disqualified from employment by government-imposed
requirements nevertheless obtains a job by misrepresenting the pertinent
qualifications. In such a situation, the employee should have no recourse for an
alleged wrongful termination of employment.” (Camp, supra, 35 Cal.App.4th at
pp. 637–638, internal citation omitted.)
• “We decline to adopt a blanket rule that material falsification of an employment
application is a complete defense to a claim that the employer, while still
1481
would not in any event have been employed by the employer. In an appropriate
case, it would also prevent an employee from recovering any lost wages when
the employee’s wrongdoing is particularly egregious.” (Salas, supra, 59 Cal.4th
at p. 431, footnote omitted.)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation Ch. 7-A, Employment
Discrimination—Title VII and the California Fair Employment and Housing Act,
¶¶ 7:930–7:932 (The Rutter Group)
Chin et al., Cal. Practice Guide: Employment Litigation Ch. 16-H, Other
Defenses--After-Acquired Evidence of Employee Misconduct, ¶¶ 16:615–16:616,
16:625, 16:635–16:637, 16:647 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.107
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.92 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.54[2] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:88 (Thomson Reuters)
1483
1485
In the second paragraph, insert the date on which the administrative complaint was
filed and the dates on which both sides allege that the complaint requirement was
triggered. The verdict form should ask the jury to specify the date that it finds that
the requirement accrued. If there are multiple claims with different continuing-
violation dates, repeat this paragraph for each claim.
The plaintiff has the burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with the DFEH. (Kim v. Konad USA
Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 [172 Cal.Rptr.3d 686].) This
burden of proof extends to any excuse or justification for the failure to timely file,
such as the continuing violation exception. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1402 [194 Cal.Rptr.3d 689].)
Sources and Authority
• Administrative Complaint for FEHA Violation. Government Code section
12960.
• “At a jury trial, the facts are presented and the jury must decide whether there
was a continuing course of unlawful conduct based on the law as stated in
CACI No. 2508.” (Jumaane, supra, 241 Cal.App.4th at p. 1401.)
• “Under the FEHA, the employee must exhaust the administrative remedy
provided by the statute by filing a complaint with the Department of Fair
Employment and Housing (Department) and must obtain from the Department a
notice of right to sue in order to be entitled to file a civil action in court based
on violations of the FEHA. The timely filing of an administrative complaint is a
prerequisite to the bringing of a civil action for damages under the FEHA. As
for the applicable limitation period, the FEHA provides that no complaint for
any violation of its provisions may be filed with the Department ‘after the
expiration of one year from the date upon which the alleged unlawful practice
or refusal to cooperate occurred,’ with an exception for delayed discovery not
relevant here.” (Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 63 [105 Cal.Rptr.2d 652], original italics, internal citations
omitted.)
• “[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with [DFEH] and obtaining a
right-to-sue letter.’ ” (Kim, supra, 226 Cal.App.4th at p. 1345.)
• “[W]hen defendant has asserted the statute of limitation defense, the plaintiff
has the burden of proof to show his or her claims are timely under the
continuing violation doctrine.” (Jumaane, supra, 241 Cal.App.4th at p. 1402.)
• “Under the continuing violation doctrine, a plaintiff may recover for unlawful
acts occurring outside the limitations period if they continued into that period.
The continuing violation doctrine requires proof that (1) the defendant’s actions
inside and outside the limitations period are sufficiently similar in kind; (2)
those actions occurred with sufficient frequency; and (3) those actions have not
acquired a degree of permanence.” (Wassmann v. South Orange County
1487
1489
1493
1496
Explained.)
In both elements 1 and 2, all of the supervisor’s specific acts need not be listed in
all cases. Depending on the facts, doing so may be too cumbersome and
impractical. If the specific acts are listed, the list should include all acts on which
plaintiff claims the decision maker relied, not just the acts admitted to have been
relied on by the decision maker.
Sources and Authority
• “This case presents the question whether an employer may be liable for
retaliatory discharge when the supervisor who initiates disciplinary proceedings
acts with retaliatory animus, but the cause for discipline is separately
investigated and the ultimate decision to discharge the plaintiff is made by a
manager with no knowledge that the worker has engaged in protected activities.
We hold that so long as the supervisor’s retaliatory motive was an actuating
. . . cause of the dismissal, the employer may be liable for retaliatory
discharge. Here the evidence raised triable issues as to the existence and effect
of retaliatory motive on the part of the supervisor, and as to whether the
manager and the intermediate investigator acted as tools or ‘cat’s paws’ for the
supervisor, that is, instrumentalities by which his retaliatory animus was carried
into effect to plaintiff’s injury.” (Reeves, supra, 121 Cal.App.4th at p. 100.)
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a “but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply a motivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original
italics.)
• “This concept—which for convenience we will call the ‘defense of
ignorance’—poses few analytical challenges so long as the ‘employer’ is
conceived as a single entity receiving and responding to stimuli as a unitary,
indivisible organism. But this is often an inaccurate picture in a world where a
majority of workers are employed by large economic enterprises with layered
and compartmentalized management structures. In such enterprises, decisions
significantly affecting personnel are rarely if ever the responsibility of a single
actor. As a result, unexamined assertions about the knowledge, ignorance, or
motives of ‘the employer’ may be fraught with ambiguities, untested
1498
1499
the same evidence, i.e., the employer’s purported legitimate reason for the adverse
action. In a pretext case, the only actual motive is the discriminatory one and the
purported legitimate reasons are fabricated in order to disguise the true motive.
(See City and County of San Francisco v. Fair Employment and Housing Com.
(1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the
burden of proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the
employee proves discrimination or retaliation and also pretext, the employer is
liable for all potential remedies including damages. But if the employee proves
discrimination or retaliation but fails to prove pretext, then a mixed-motive case is
presented. To avoid an award of damages, the employer then has the burden of
proving that it would have made the same decision anyway solely for the legitimate
reason, even though it may have also discriminated or retaliated.
Sources and Authority
• “[U]nder the FEHA, when a jury finds that unlawful discrimination was a
substantial factor motivating a termination of employment, and when the
employer proves it would have made the same decision absent such
discrimination, a court may not award damages, backpay, or an order of
reinstatement. But the employer does not escape liability. In light of the FEHA’s
express purpose of not only redressing but also preventing and deterring
unlawful discrimination in the workplace, the plaintiff in this circumstance
could still be awarded, where appropriate, declaratory relief or injunctive relief
to stop discriminatory practices. In addition, the plaintiff may be eligible for
reasonable attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)
• “Because employment discrimination litigation does not resemble the kind of
cases in which we have applied the clear and convincing standard, we hold that
preponderance of the evidence is the standard of proof applicable to an
employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)
• “[W]hen we refer to a same-decision showing, we mean proof that the
employer, in the absence of any discrimination, would have made the same
decision at the time it made its actual decision.” (Harris, supra, 56 Cal.4th at p.
224, original italics.)
• “In light of today’s decision, a jury in a mixed-motive case alleging unlawful
termination should be instructed that it must find the employer’s action was
substantially motivated by discrimination before the burden shifts to the
employer to make a same-decision showing, and that a same-decision showing
precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56
Cal.4th at p. 241.)
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “[A] plaintiff has the initial burden to make a prima facie case of discrimination
1501
by showing that it is more likely than not that the employer has taken an
adverse employment action based on a prohibited criterion. A prima facie case
establishes a presumption of discrimination. The employer may rebut the
presumption by producing evidence that its action was taken for a legitimate,
nondiscriminatory reason. If the employer discharges this burden, the
presumption of discrimination disappears. The plaintiff must then show that the
employer’s proffered nondiscriminatory reason was actually a pretext for
discrimination, and the plaintiff may offer any other evidence of discriminatory
motive. The ultimate burden of persuasion on the issue of discrimination
remains with the plaintiff.” (Harris, supra, 56 Cal.4th at pp. 214–215.)
• “In some cases there is no single reason for an employer’s adverse action, and a
discriminatory motive may have influenced otherwise legitimate reasons for the
employment decision. In Harris v. City of Santa Monica (Harris) the California
Supreme Court recognized the traditional McDonnell Douglas burden-shifting
test was intended for use in cases presenting a single motive for the adverse
action, that is, in ‘cases that do not involve mixed motives.’ As the Court
explained, this ‘framework . . . presupposes that the employer has a single
reason for taking an adverse action against the employee and that the reason is
either discriminatory or legitimate. By hinging liability on whether the
employer’s proffered reason for taking the action is genuine or pretextual, the
McDonnell Douglas inquiry aims to ferret out the “true” reason for the
employer’s action. In a mixed-motives case, however, there is no single “true”
reason for the employer’s action.’ ” (Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1182 [220 Cal.Rptr.3d 42], internal citations
omitted.)
• “Following the California Supreme Court’s decision in Harris, . . . the Judicial
Council added CACI No. 2512, to be given when the employer presents
evidence of a legitimate reason for the adverse employment action, informing
the jurors that even if they find that discrimination was a substantial motivating
reason for the adverse action, if the employer establishes that the adverse action
nonetheless would have been taken for legitimate reasons, ‘then [the plaintiff]
will not be entitled to reinstatement, back pay, or damages.’ ” (Davis v. Farmers
Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr.3d
315].)
• “ ‘[Plaintiff] further argues that for equitable reasons, an employer that wishes
to make a same-decision showing must concede that it had mixed motives for
taking the adverse employment action instead of denying a discriminatory
motive altogether. But there is no inconsistency when an employer argues that
its motive for discharging an employee was legitimate, while also arguing,
contingently, that if the trier of fact finds a mixture of lawful and unlawful
motives, then its lawful motive alone would have led to the discharge.’ ”
(Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th
169, 199 [167 Cal.Rptr.3d 24] [quoting Harris, supra, 56 Cal.App.4th at p.
240].)
1502
• “As a preliminary matter, we reject [defendant]’s claim that the jury could have
found no liability on the part of [defendant] had it been properly instructed on
the mixed-motive defense at trial. As discussed, the Supreme Court in Harris
held that the mixed-motive defense is available under the FEHA, but only as a
limitation on remedies and not as a complete defense to liability. Consequently,
when the plaintiff proves by a preponderance of the evidence that discrimination
was a substantial motivating factor in the adverse employment decision, the
employer is liable under the FEHA. When the employer proves by a
preponderance of the evidence that it would have made the same decision even
in the absence of such discrimination, the employer is still liable under the
FEHA, but the plaintiff’s remedies are then limited to declaratory or injunctive
relief, and where appropriate, attorney’s fees and costs. As presently drafted,
BAJI No. 12.26 does not accurately set forth the parameters of the defense as
articulated by the Supreme Court, but rather states that, in a mixed-motive case,
‘the employer is not liable if it can establish by a preponderance of the
evidence that its legitimate reason, standing alone, would have induced it to
make the same decision.’ By providing that the mixed-motive defense, if
proven, is a complete defense to liability, [defendant]’s requested instruction
directly conflicts with the holding in Harris. (Alamo v. Practice Management
Information Corp. (2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr.3d 758],
internal citations omitted.)
• “Pretext may . . . be inferred from the timing of the company’s termination
decision, by the identity of the person making the decision, and by the
terminated employee’s job performance before termination.” (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr.3d 296].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1037,
1067
7 Witkin, California Procedure (5th ed. 2008), Judgment § 217
3 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.11 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23 (Matthew Bender)
1503
1505
claims: quid pro quo and hostile work environment. Quid pro quo harassment
occurs when submission to sexual conduct is made a condition of concrete
employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)
• “A cause of action for quid pro quo harassment involves the behavior most
commonly regarded as sexual harassment, including, e.g., sexual propositions,
unwarranted graphic discussion of sexual acts, and commentary on the
employee’s body and the sexual uses to which it could be put. To state a cause
of action on this theory, it is sufficient to allege that a term of employment was
expressly or impliedly conditioned upon acceptance of a supervisor’s
unwelcome sexual advances.” (Mogilefsky v. Superior Court (1993) 20
Cal.App.4th 1409, 1414 [26 Cal.Rptr.2d 116], internal citations omitted.)
• “Cases based on threats which are carried out are referred to often as quid pro
quo cases, as distinct from bothersome attentions or sexual remarks that are
sufficiently severe or pervasive to create a hostile work environment. The terms
quid pro quo and hostile work environment are helpful, perhaps, in making a
rough demarcation between cases in which threats are carried out and those
where they are not or are absent altogether, but beyond this are of limited utility
. . . [¶] We do not suggest the terms quid pro quo and hostile work
environment are irrelevant to Title VII litigation. To the extent they illustrate the
distinction between cases involving a threat which is carried out and offensive
conduct in general, the terms are relevant when there is a threshold question
whether a plaintiff can prove discrimination in violation of Title VII. When a
plaintiff proves that a tangible employment action resulted from a refusal to
submit to a supervisor’s sexual demands, he or she establishes that the
employment decision itself constitutes a change in the terms and conditions of
employment that is actionable under Title VII. For any sexual harassment
preceding the employment decision to be actionable, however, the conduct must
be severe or pervasive.” (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S.
742, 751, 753–754 [118 S.Ct. 2257, 141 L.Ed.2d 633].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166,
7:168–7:169, 7:194 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources
Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:50 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 3.31–3.35
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
1507
1508
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015, May 2018
Directions for Use
This instruction is for use in a hostile work environment case when the defendant
is an employer or other entity covered by the FEHA. For an individual defendant,
such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522A, Hostile
Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant. For a case in which the plaintiff is not the target
of the harassment, see CACI No. 2521B, Hostile Work Environment
1509
Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote
omitted.)
• “[A]n employer is strictly liable for all acts of sexual harassment by a
supervisor.” (State Dep’t of Health Servs., supra, 31 Cal.4th at p. 1042.)
• “The applicable language of the FEHA does not suggest that an employer’s
liability for sexual harassment by a supervisor is constrained by principles of
agency law. Had the Legislature so intended, it would have used language in
the FEHA imposing the negligence standard of liability on acts of harassment
by an employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or
‘not acting within the scope of an agency for the employer.’ By providing
instead in section 12940, subdivision (j)(1), that the negligence standard applies
to acts of harassment ‘by an employee other than an agent or supervisor’
(italics added), the Legislature has indicated that all acts of harassment by a
supervisor are to be exempted from the negligence standard, whether or not the
supervisor was then acting as the employer’s agent, and that agency principles
come into play only when the harasser is not a supervisor. (State Dept. of
Health Services, supra, 31 Cal.4th at p. 1041, original italics.)
• “When the harasser is a nonsupervisory employee, employer liability turns on a
showing of negligence (that is, the employer knew or should have known of the
harassment and failed to take appropriate corrective action).” (Rehmani v.
Superior Court (2012) 204 Cal.App.4th 945, 952 [139 Cal.Rptr.3d 464].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it
becomes or reasonably should become aware of the conduct—for example,
when the victim or someone else informs the employer—there simply is no
‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• Employers may be liable for the conduct of certain agents. (See Gov. Code,
§§ 12925(d), 12926(d), and 12940(j)(1) and Reno v. Baird (1998) 18 Cal.4th
640, 658 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court
declined to express opinion whether “agent” language in the FEHA merely
incorporates respondeat superior principles or has some other meaning].)
• “Here, [defendant] was jointly liable with its employees on a respondeat
superior or vicarious liability theory on every cause of action in which it was
named as a defendant.” (Bihun, supra, 13 Cal.App.4th at p. 1000.)
• “The McDonnell Douglas burden-shifting framework does not apply to
1511
find it abusive.’ [¶] [Evidence Code] Section 1106 limits the evidence the
defendant may use to support this assertion. It provides that ‘[i]n any civil
action alleging conduct which constitutes sexual harassment, sexual assault, or
sexual battery, opinion evidence, reputation evidence, and evidence of specific
instances of the plaintiff’s sexual conduct, or any of that evidence, is not
admissible by the defendant in order to prove consent by the plaintiff or the
absence of injury to the plaintiff . . . .’ This general rule is, however, subject to
the exception that it ‘does not apply to evidence of the plaintiff’s sexual conduct
with the alleged perpetrator.’ The term ‘sexual conduct’ within the meaning of
section 1106 has been broadly construed to include ‘all active or passive
behavior (whether statements or actions), that either directly or through
reasonable inference establishes a plaintiff’s willingness to engage in sexual
activity,’ including ‘racy banter, sexual horseplay, and statements concerning
prior, proposed, or planned sexual exploits.’ ” (Meeks v. AutoZone, Inc. (2018)
24 Cal.App.5th 855, 874 [235 Cal.Rptr.3d 161], internal citations omitted.)
• “[A]llegations of a racially hostile work-place must be assessed from the
perspective of a reasonable person belonging to the racial or ethnic group of the
plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
• “Under . . . FEHA, sexual harassment can occur between members of the same
gender as long as the plaintiff can establish the harassment amounted to
discrimination because of sex.” (Lewis v. City of Benicia (2014) 224
Cal.App.4th 1519, 1525 [169 Cal.Rptr.3d 794], original italics.)
• “[T]here is no requirement that the motive behind the sexual harassment must
be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual
desire to support an inference of discrimination on the basis of sex.’ Sexual
harassment occurs when, as is alleged in this case, sex is used as a weapon to
create a hostile work environment.” (Singleton v. United States Gypsum Co.
(2006) 140 Cal.App.4th 1547, 1564 [45 Cal.Rptr.3d 597], original italics,
internal citation omitted.)
• “The plaintiff must show that the harassing conduct took place because of the
plaintiff’s sex, but need not show that the conduct was motivated by sexual
desire. For example, a female plaintiff can prevail by showing that the
harassment was because of the defendant’s bias against women; she need not
show that it was because of the defendant’s sexual interest in women. In every
case, however, the plaintiff must show a discriminatory intent or motivation
based on gender.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [129
Cal.Rptr.3d 384], internal citations omitted.)
• “[A] heterosexual male is subjected to harassment because of sex under the
FEHA when attacks on his heterosexual identity are used as a tool of
harassment in the workplace, irrespective of whether the attacks are motivated
by sexual desire or interest.” (Taylor v. Nabors Drilling USA, LP (2014) 222
Cal.App.4th 1228, 1239–1240 [166 Cal.Rptr.3d 676].)
• “A recent legislative amendment modifies section 12940, subdivision (j)(4)(C)
1513
1514
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015, May 2018
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was
not the target of the harassing conduct and the defendant is an employer or other
1515
entity covered by the FEHA. For an individual defendant, such as the alleged
harasser or plaintiff’s coworker, see CACI No. 2522B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant. For a case in which the plaintiff is the target of the harassment, see
CACI No. 2521A, Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For an
instruction for use if the hostile environment is due to widespread sexual
favoritism, see CACI No. 2521C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing
Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
In element 6, select the applicable basis of employer liability: (a) strict liability for
a supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct.
For a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor”
Defined. If there are both employer and individual supervisor defendants (see CACI
No. 2522B, Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Individual Defendant) and both are found
liable, they are both jointly and severally liable for any damages. Comparative fault
and Proposition 51 do not apply to the employer’s strict liability for supervisor
harassment. (State Dept. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026,
1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information
Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved
on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644,
664 [25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992)
9 Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied
to those who are without fault and only have vicarious liability by virtue of some
statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “The elements [of a prima facie claim of hostile-environment sexual
harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was
1516
‘not acting within the scope of an agency for the employer.’ By providing
instead in section 12940, subdivision (j)(1), that the negligence standard applies
to acts of harassment ‘by an employee other than an agent or supervisor’
(italics added), the Legislature has indicated that all acts of harassment by a
supervisor are to be exempted from the negligence standard, whether or not the
supervisor was then acting as the employer’s agent, and that agency principles
come into play only when the harasser is not a supervisor. (State Dept. of
Health Servs., supra, 31 Cal.4th at p. 1041, original italics.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it
becomes or reasonably should become aware of the conduct—for example,
when the victim or someone else informs the employer—there simply is no
‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
1518
Derived from former CACI No. 2521 December 2007; Revised December 2015,
May 2018
Directions for Use
This instruction is for use in a hostile work environment case involving widespread
1519
sexual favoritism when the defendant is an employer or other entity covered by the
FEHA. For an individual defendant, such as the alleged harasser or plaintiff’s
coworker, see CACI No. 2522C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Individual Defendant. For a case in which the plaintiff is the target of
harassment based on a protected status such as gender, race, or sexual orientation,
see CACI No. 2521A, Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For an
instruction for use if the plaintiff is not the target of the harassment, see CACI No.
2521B, Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity Defendant. Also read
CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or
Pervasive” Explained.
In element 6, select the applicable basis of employer liability: (a) strict liability for
a supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct.
For a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor”
Defined. If there are both employer and individual supervisor defendants (see CACI
No. 2522C, Hostile Work Environment Harassment—Widespread Sexual
Favoritism—Essential Factual Elements—Individual Defendant) and both are found
liable, they are both jointly and severally liable for any damages. Comparative fault
and Proposition 51 do not apply to the employer’s strict liability for supervisor
harassment. (State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026,
1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information
Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved
on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644,
664 [25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992)
9 Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied
to those who are without fault and only have vicarious liability by virtue of some
statutory fiat].)
See also the Sources and Authority to CACI No. 2521A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
1520
supervisor are to be exempted from the negligence standard, whether or not the
supervisor was then acting as the employer’s agent, and that agency principles
come into play only when the harasser is not a supervisor. (State Dept. of
Health Servs., supra, 31 Cal.4th at p. 1041, original italics.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it
becomes or reasonably should become aware of the conduct—for example,
when the victim or someone else informs the employer—there simply is no
‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
1522
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015, May 2018
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was
the target of the harassing conduct and the defendant is an individual such as the
alleged harasser or plaintiff’s coworker. For an employer defendant, see CACI No.
2521A, Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For a case in
which the plaintiff is not the target of the harassment, see CACI No. 2522B,
Hostile Work Environment Harassment—Conduct Directed at Others—Essential
Factual Elements—Individual Defendant. For an instruction for use if the hostile
environment is due to sexual favoritism, see CACI No. 2522C, Hostile Work
Environment Harassment—Widespread Sexual Favoritism—Essential Factual
1523
1525
Derived from former CACI No. 2522 December 2007; Revised June 2013,
December 2015, May 2018
Directions for Use
This instruction is for use in a hostile work environment case if the plaintiff was
not the target of the harassing conduct and the defendant is an individual such as
the alleged harasser or plaintiff’s coworker. For an employer defendant, see CACI
No. 2521B, Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity Defendant. For a case in
which the plaintiff is the target of the harassment, see CACI No. 2522A, Hostile
Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
1526
herself but also by the treatment of others. A woman’s perception that her work
environment is hostile to women will obviously be reinforced if she witnesses
the harassment of other female workers.” (Beyda v. City of Los Angeles (1998)
65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
• “Harassment against others in the workplace is only relevant to the plaintiff’s
case if she has personal knowledge of it. Unless plaintiff witnesses the conduct
against others, or is otherwise aware of it, that conduct cannot alter the
conditions of her employment and create an abusive working environment.
Stated another way, a reasonable person in plaintiff’s position would not find
the environment hostile or abusive unless that person had knowledge of the
objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
• “To state that an employee must be the direct victim of the sexually harassing
conduct is somewhat misleading as an employee who is subjected to a hostile
work environment is a victim of sexual harassment even though no offensive
remarks or touchings are directed to or perpetrated upon that employee.
Generally, however, sexual conduct that involves or is aimed at persons other
than the plaintiff is considered less offensive and severe than conduct that is
directed at the plaintiff. A hostile work environment sexual harassment claim by
a plaintiff who was not personally subjected to offensive remarks and touchings
requires ‘an even higher showing’ than a claim by one who had been sexually
harassed without suffering tangible job detriment: such a plaintiff must
‘establish that the sexually harassing conduct permeated [her] direct work
environment.’ [¶] To meet this burden, the plaintiff generally must show that the
harassment directed at others was in her immediate work environment, and that
she personally witnessed it. The reason for this is obvious: if the plaintiff does
not witness the incidents involving others, ‘those incidents cannot affect . . .
her perception of the hostility of the work environment.’ ” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d
2, 132 P.3d 211], internal citations omitted.)
• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent
sexual harassment, is not personally liable for sexual harassment under the Fair
Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of
the harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
1528
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
1529
Derived from former CACI No. 2522 December 2007; Revised December 2015,
May 2018
Directions for Use
This instruction is for use in a hostile work environment case involving widespread
sexual favoritism when the defendant is an individual such as the alleged harasser
or plaintiff’s coworker. For an employer defendant, see CACI No. 2521C, Hostile
Work Environment Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant. For a case in which the plaintiff is the
1530
Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote
omitted.)
• “Following the guidance of the EEOC, and also employing standards adopted in
our prior cases, we believe that an employee may establish an actionable claim
of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working
conditions and create a hostile work environment.” (Miller v. Dept. of
Corrections (2005) 36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77],
internal citations omitted.)
• “[S]exual favoritism by a manager may be actionable when it leads employees
to believe that ‘they [can] obtain favorable treatment from [the manager] if they
became romantically involved with him’, the affair is conducted in a manner ‘so
indiscreet as to create a hostile work environment,’ or the manager has engaged
in ‘other pervasive conduct . . . which created a hostile work environment.’ ”
(Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
• “[A] romantic relationship between a supervisor and an employee does not,
without more, give rise to a sexual discrimination or sexual harassment claim
either under the FEHA or the public policy of the state.” (Proksel v. Gattis
(1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent
sexual harassment, is not personally liable for sexual harassment under the Fair
Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of
the harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36[5] (Matthew Bender)
1532
1533
Harassing conduct may include, but is not limited to, [any of the
following:]
[a. Verbal harassment, such as obscene language, demeaning
comments, slurs, [or] threats [or] [describe other form of verbal
harassment];] [or]
[b. Physical harassment, such as unwanted touching, assault, or
physical interference with normal work or movement;] [or]
[c. Visual harassment, such as offensive posters, objects, cartoons, or
drawings;] [or]
[d. Unwanted sexual advances;] [or]
[e. [Describe other form of harassment if appropriate, e.g., derogatory,
unwanted, or offensive photographs, text messages, Internet
postings].]
1536
environment to be abusive, the conduct has not actually altered the conditions
of the victim’s employment, and there is no Title VII violation.’ . . . California
courts have adopted the same standard in evaluating claims under the FEHA.”
(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130 [87
Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
• “Whether the sexual conduct complained of is sufficiently pervasive to create a
hostile or offensive work environment must be determined from the totality of
the circumstances. The plaintiff must prove that the defendant’s conduct would
have interfered with a reasonable employee’s work performance . . . and that
she was actually offended . . . . The factors that can be considered in
evaluating the totality of the circumstances are: (1) the nature of the unwelcome
sexual acts or works (generally, physical touching is more offensive than
unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the
total number of days over which all of the offensive conduct occurs; and (4) the
context in which the sexually harassing conduct occurred.” (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590, 609–610 [262 Cal.Rptr. 842],
internal citation omitted.)
• “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts
have held that acts of harassment cannot be occasional, isolated, sporadic, or
trivial, rather the plaintiff must show a concerted pattern of harassment of a
repeated, routine or a generalized nature.” (Fisher, supra, 214 Cal.App.3d at p.
610.)
• “The United States Supreme Court . . . has clarified that conduct need not
seriously affect an employee’s psychological well-being to be actionable as
abusive work environment harassment. So long as the environment reasonably
would be perceived, and is perceived, as hostile or abusive, there is no need for
it also to be psychologically injurious.” (Kelly-Zurian v. Wohl Shoe Co., Inc.
(1994) 22 Cal.App.4th 397, 412 [27 Cal.Rptr.2d 457], internal citations
omitted.)
• “As the Supreme Court recently reiterated, in order to be actionable, ‘. . . a
sexually objectionable environment must be both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.’ The work environment must be
viewed from the perspective of a reasonable person in the plaintiff’s position,
considering ‘all the circumstances.’ This determination requires judges and
juries to exercise ‘[c]ommon sense, and an appropriate sensitivity to social
context’ in order to evaluate whether a reasonable person in the plaintiff’s
position would find the conduct severely hostile or abusive.” (Beyda v. City of
Los Angeles (1998) 65 Cal.App.4th 511, 518–519 [76 Cal.Rptr.2d 547], internal
citations omitted.)
• “The requirement that the conduct be sufficiently severe or pervasive to create a
working environment a reasonable person would find hostile or abusive is a
crucial limitation that prevents sexual harassment law from being expanded into
a ‘general civility code.’ The conduct must be extreme: ‘ “simple teasing,” . . .
1538
offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the “terms and conditions of
employment.” ’ ” (Jones v. Department of Corrections (2007) 152 Cal. App. 4th
1367, 1377 [62 Cal.Rptr. 3d 200], internal citations omitted.)
• “[E]mployment law acknowledges that an isolated incident of harassing conduct
may qualify as ‘severe’ when it consists of ‘a physical assault or the threat
thereof.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 [95 Cal.Rptr.3d 636,
209 P.3d 963], original italics.)
• “In the present case, the jury was instructed as follows: ‘In order to find in
favor of Plaintiff on his claim of race harassment, you must find that Plaintiff
has proved by a preponderance of the evidence that the racial conduct
complained of was sufficiently severe or pervasive to alter the conditions of
employment. In order to find that racial harassment is “sufficiently severe or
pervasive,” the acts of racial harassment cannot be occasional, isolated,
sporadic, or trivial.’ . . . [W]e find no error in the jury instruction given here
. . . . [T]he law requires the plaintiff to meet a threshold standard of severity or
pervasiveness. We hold that the statement within the instruction that severe or
pervasive conduct requires more than ‘occasional, isolated, sporadic, or trivial’
acts was an accurate statement of that threshold standard.” (Etter v. Veriflo
Corp. (1998) 67 Cal.App.4th 457, 465–467 [79 Cal.Rptr.2d 33].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin, et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 10:160–10:249
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.17, 3.36–3.41
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation (Thomson West) § 2:56
1539
other than an agent or supervisor’ by implication the FEHA makes the employer
strictly liable for harassment by a supervisor.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal. 4th 1026, 1040–1041 [6 Cal. Rptr. 3d 441, 79
P.3d 556], internal citations omitted.)
• “Unlike discrimination in hiring, the ultimate responsibility for which rests with
the employer, sexual or other harassment perpetrated by a supervisor with the
power to hire, fire and control the victimized employee’s working conditions is
a particularly personal form of the type of discrimination which the Legislature
sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court
(1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)
• “This section has been interpreted to mean that the employer is strictly liable
for the harassing actions of its supervisors and agents, but that the employer is
only liable for harassment by a coworker if the employer knew or should have
known of the conduct and failed to take immediate corrective action. Thus,
characterizing the employment status of the harasser is very significant.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal
citations omitted.)
• “The case and statutory authority set forth three clear rules. First, . . . a
supervisor who personally engages in sexually harassing conduct is personally
liable under the FEHA. Second, . . . if the supervisor participates in the sexual
harassment or substantially assists or encourages continued harassment, the
supervisor is personally liable under the FEHA as an aider and abettor of the
harasser. Third, under the FEHA, the employer is vicariously and strictly liable
for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50
Cal.App.4th 1318, 1327 [58 Cal.Rptr.2d 308].)
• “[W]hile an employer’s liability under the [FEHA] for an act of sexual
harassment committed by a supervisor or agent is broader than the liability
created by the common law principle of respondeat superior, respondeat
superior principles are nonetheless relevant in determining liability when, as
here, the sexual harassment occurred away from the workplace and not during
work hours.” (Doe, supra, 50 Cal.App.4th at pp. 1048–1049.)
• “The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider
general principles of agency law. An agent is one who represents a principal in
dealings with third persons. An agent is a person authorized by the principal to
conduct one or more transactions with one or more third persons and to
exercise a degree of discretion in effecting the purpose of the principal. A
supervising employee is an agent of the employer.” (Fiol, supra, 50 Cal.App.4th
at p. 1328, internal citations omitted.)
• “A supervisor who, without more, fails to take action to prevent sexual
harassment of an employee is not personally liable as an aider and abettor of
the harasser, an aider and abettor of the employer or an agent of the employer.”
(Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[W]hile full accountability and responsibility are certainly indicia of
1541
supervisory power, they are not required elements of . . . the FEHA definition
of supervisor. Indeed, many supervisors with responsibility to direct others
using their independent judgment, and whose supervision of employees is not
merely routine or clerical, would not meet these additional criteria though they
would otherwise be within the ambit of the FEHA supervisor definition.”
(Chapman, supra, 116 Cal.App.4th at p. 930, footnote omitted.)
• “Defendants take the position that the court’s modified instruction is,
nonetheless, accurate because the phrase ‘responsibility to direct’ is the
functional equivalent of being ‘fully accountable and responsible for the
performance and work product of the employees. . . .’ In this, they rely on the
dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it
relates to the issue before us, this definition is unhelpful for two reasons. First,
one can be accountable for one’s own actions without being accountable for
those of others. Second, the argument appears to ignore the plain language of
the statute which itself defines the circumstances under which the exercise of
the responsibility to direct will be considered supervisory, i.e., ‘if . . . [it] is not
of a merely routine or clerical nature, but requires the use of independent
judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources
Of Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:320.5,
10:320.6 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harasser’s
Individual Liability, ¶ 10:499 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and
Other Harassment, § 3.21
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)
1542
Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th
886, 900–901 [172 Cal.Rptr.3d 465].)
Sources and Authority
• “[W]e conclude that under the FEHA, an employer is strictly liable for all acts
of sexual harassment by a supervisor. But strict liability is not absolute liability
in the sense that it precludes all defenses. Even under a strict liability standard,
a plaintiff’s own conduct may limit the amount of damages recoverable or bar
recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042,
internal citations omitted.)
• “We emphasize that the defense affects damages, not liability. An employer that
has exercised reasonable care nonetheless remains strictly liable for harm a
sexually harassed employee could not have avoided through reasonable care.
The avoidable consequences doctrine is part of the law of damages; thus, it
affects only the remedy available. If the employer establishes that the employee,
by taking reasonable steps to utilize employer-provided complaint procedures,
could have caused the harassing conduct to cease, the employer will nonetheless
remain liable for any compensable harm the employee suffered before the time
at which the harassment would have ceased, and the employer avoids liability
only for the harm the employee incurred thereafter.” (State Dept. of Health
Services, supra, 31 Cal.4th at p. 1045, internal citation omitted.)
• “Under the avoidable consequences doctrine as recognized in California, a
person injured by another’s wrongful conduct will not be compensated for
damages that the injured person could have avoided by reasonable effort or
expenditure. The reasonableness of the injured party’s efforts must be judged in
light of the situation existing at the time and not with the benefit of hindsight.
‘The standard by which the reasonableness of the injured party’s efforts is to be
measured is not as high as the standard required in other areas of law.’ The
defendant bears the burden of pleading and proving a defense based on the
avoidable consequences doctrine.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “Although courts explaining the avoidable consequences doctrine have
sometimes written that a party has a ‘duty’ to mitigate damages, commentators
have criticized the use of the term ‘duty’ in this context, arguing that it is more
accurate to state simply that a plaintiff may not recover damages that the
plaintiff could easily have avoided.” (State Dept. of Health Services, supra, 31
Cal.4th at p. 1043, internal citations omitted.)
• “We hold . . . that in a FEHA action against an employer for hostile
environment sexual harassment by a supervisor, an employer may plead and
prove a defense based on the avoidable consequences doctrine. In this particular
context, the defense has three elements: (1) the employer took reasonable steps
to prevent and correct workplace sexual harassment; (2) the employee
unreasonably failed to use the preventive and corrective measures that the
employer provided; and (3) reasonable use of the employer’s procedures would
1544
have prevented at least some of the harm that the employee suffered.” (State
Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)
• “This defense will allow the employer to escape liability for those damages, and
only those damages, that the employee more likely than not could have
prevented with reasonable effort and without undue risk, expense, or
humiliation, by taking advantage of the employer’s internal complaint
procedures appropriately designed to prevent and eliminate sexual harassment.”
(State Dept. of Health Services, supra, 31 Cal.4th at p. 1044, internal citations
omitted.)
• “If the employer establishes that the employee, by taking reasonable steps to
utilize employer-provided complaint procedures, could have caused the
harassing conduct to cease, the employer will nonetheless remain liable for any
compensable harm the employee suffered before the time at which the
harassment would have ceased, and the employer avoids liability only for the
harm the employee incurred thereafter.” (State Dept. of Health Services, supra,
31 Cal.4th at p. 1045, internal citations omitted.)
• “We stress also that the holding we adopt does not demand or expect that
employees victimized by a supervisor’s sexual harassment must always report
such conduct immediately to the employer through internal grievance
mechanisms. The employer may lack an adequate antiharassment policy or
adequate procedures to enforce it, the employer may not have communicated
the policy or procedures to the victimized employee, or the employee may
reasonably fear reprisal by the harassing supervisor or other employees.
Moreover, in some cases an employee’s natural feelings of embarrassment,
humiliation, and shame may provide a sufficient excuse for delay in reporting
acts of sexual harassment by a supervisor.” (State Dept. of Health Services,
supra, 31 Cal.4th at p. 1045.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2010) Torts, § 1624
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365–10:367, 10:371,
10:375 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)
1545
New June 2006; Revised April 2007, June 2013, December 2015
Directions for Use
Give this instruction after the appropriate instructions in this series on the
underlying claim for discrimination, retaliation, or harassment if the employee also
claims that the employer failed to prevent the conduct. (See Gov. Code,
§ 12940(k).) Read the bracketed language in the opening paragraph beginning with
“based on” if the claim is for failure to prevent harassment or discrimination.
For guidance for a further instruction on what constitutes “reasonable steps,” see
section 11019(b)(4) of Title 2 of the California Code of Regulations.
Sources and Authority
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative
and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd.
(2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
1546
corrective action that is reasonably calculated to (1) end the current harassment
and (2) to deter future harassment. [Citation.] The employer’s obligation to take
prompt corrective action requires (1) that temporary steps be taken to deal with
the situation while the employer determines whether the complaint is justified
and (2) that permanent remedial steps be implemented by the employer to
prevent future harassment . . . .” (M.F. v. Pacific Pearl Hotel Management LLC
(2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)
• “This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word
“tort” means a civil wrong, other than a breach of contract, for which the law
will provide a remedy in the form of an action for damages.’ ‘It is well settled
the Legislature possesses a broad authority . . . to establish . . . tort causes of
action.’ Examples of statutory torts are plentiful in California law.” ’ Section
12960 et seq. provides procedures for the prevention and elimination of
unlawful employment practices. In particular, section 12965, subdivision (a)
authorizes the Department of Fair Employment and Housing (DFEH) to bring
an accusation of an unlawful employment practice if conciliation efforts are
unsuccessful, and section 12965, subdivision (b) creates a private right of action
for damages for a complainant whose complaint is not pursued by the DFEH.”
(Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73
Cal.Rptr.2d 596], internal citations omitted.)
• “With these rules in mind, we examine the section 12940 claim and finding
with regard to whether the usual elements of a tort, enforceable by private
plaintiffs, have been established: Defendants’ legal duty of care toward
plaintiffs, breach of duty (a negligent act or omission), legal causation, and
damages to the plaintiff.” (Trujillo, supra, 63 Cal.App.4th at pp. 286–287,
internal citation omitted.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take
immediate and appropriate corrective action’ is a question of fact.” (M.F., supra,
16 Cal.App.5th at p. 703, internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under
FEHA before a plaintiff may prevail under section 12940, subdivision (k).”
(Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184
Cal.Rptr.3d 774].)
• “Also, there is a significant question of how there could be legal causation of
any damages (either compensatory or punitive) from such a statutory violation,
where the only jury finding was the failure to prevent actionable harassment or
discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th
at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015), . . . states that the
failure to prevent instruction should be given ‘after the appropriate instructions
in this series on the underlying claim for . . . harassment if the employee also
claims that the employer failed to prevent the conduct.’ An instruction on the
elements of an underlying sexual harassment claim would be unnecessary if the
1547
1548
(Gov. Code § 12940(j)(1).) In contrast, for the employer’s failure to prevent acts of
an employee, the duty is to “take all reasonable steps necessary to prevent
discrimination and harassment from occurring.” (Gov. Code, § 12940(k).)
Whether the employer must prevent or later correct the harassing situation would
seem to depend on the facts of the case. If the issue is to stop harassment from
recurring after becoming aware of it, the employer’s duty would be to “correct” the
problem. If the issue is to address a developing problem before the harassment
occurs, the duty would be to “prevent” it. Choose the appropriate words in
elements 4, 5, and 7 depending on the facts.
Sources and Authority
• Prevention of Harassment by a Nonemployee. Government Code section
12940(j)(1).
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The FEHA provides: ‘An employer may . . . be responsible for the acts of
nonemployees, with respect to sexual harassment of employees . . . , where the
employer, or its agents or supervisors, knows or should have known of the
conduct and fails to take immediate and appropriate corrective action. In
reviewing cases involving the acts of nonemployees, the extent of the
employer’s control and any other legal responsibility that the employer may
have with respect to the conduct of those nonemployees shall be considered.’
. . . ’ A plaintiff cannot state a claim for failure to prevent harassment unless
the plaintiff first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel
Management LLC (2017) 16 Cal.App.5th 693, 700-701 [224 Cal.Rptr.3d 542].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
corrective action that is reasonably calculated to (1) end the current harassment
and (2) to deter future harassment. [Citation.] The employer’s obligation to take
prompt corrective action requires (1) that temporary steps be taken to deal with
the situation while the employer determines whether the complaint is justified
and (2) that permanent remedial steps be implemented by the employer to
prevent future harassment . . . .” (M.F., supra, 16 Cal.App.5th at p. 701.)
• “[T]he language of section 12940, subdivision (j)(1), does not limit its
application to a particular fact pattern. Rather, the language of the statute
provides for liability whenever an employer (1) knows or should know of
sexual harassment by a nonemployee and (2) fails to take immediate and
appropriate remedial action (3) within its control. (M.F., supra, 16 Cal.App.5th
at p. 702.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take
immediate and appropriate corrective action’ is a question of fact.” (M.F., supra,
16 Cal.App.5th at p. 703, internal citation omitted.)
• “The more egregious the abuse and the more serious the threat of which the
1550
employer has notice, the more the employer will be required under a standard
of reasonable care to take steps for the protection of likely future victims.”
(M.F., supra, 16 Cal.App.5th at p. 701.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency, §§ 363, 370
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§
1019, 1028, 1035
2529–2539. Reserved for Future Use
1551
New September 2003; Revised June 2006, December 2007, April 2009, December
2009, June 2010, June 2012, June 2013, December 2014, December 2016
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
In the introductory paragraph and in elements 3 and 6, select the bracketed
language on “history” of disability if the claim of discrimination is based on a
history of disability rather than a current actual disability.
For element 1, the court may need to instruct the jury on the statutory definition of
“employer” under the FEHA. Other covered entities under the FEHA include labor
organizations, employment agencies, and apprenticeship training programs. (See
Gov. Code, § 12940(a)–(d).)
Modify elements 3 and 6 if plaintiff was not actually disabled or had a history of
disability, but alleges discrimination because he or she was perceived to be
disabled. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].) This can be done with language in element 3 that the employer
“treated [name of plaintiff] as if [he/she] . . .” and with language in element 6
“That [name of employer]’s belief that . . . .”
If the plaintiff alleges discrimination on the basis of his or her association with
someone who was or was perceived to be disabled, give CACI No. 2547,
Disability-Based Associational Discrimination—Essential Factual Elements. (See
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635,
655–660 [163 Cal.Rptr.3d 392] [claim for “disability based associational
discrimination” adequately pled].)
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in element 3.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement
that medical condition limit major life activity].)
Regarding element 4, it is now settled that the ability to perform the essential
duties of the job is an element of the plaintiff’s burden of proof. (See Green v.
State of California (2007) 42 Cal.4th 254, 257–258 [64 Cal.Rptr.3d 390, 165 P.3d
118].)
Read the first option for element 5 if there is no dispute as to whether the
1553
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if
whether there was an adverse employment action is a question of fact for the jury.
If constructive discharge is alleged, give the third option for element 5 and also
give CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in
element 6 if either the second or third option is included for element 5.
Element 6 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Give the optional sentence in the last paragraph if there is evidence that the
defendant harbored personal animus against the plaintiff because of his or her
disability.
If the existence of a qualifying disability is disputed, additional instructions
defining “physical disability,” “mental disability,” and “medical condition” may be
required. (See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Inability to Perform Essential Job Duties. Government Code section
12940(a)(1).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Perception of Disability and Association With Disabled Person Protected.
Government Code section 12926(o).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “[T]he plaintiff initially has the burden to establish a prima facie case of
discrimination. The plaintiff can meet this burden by presenting evidence that
demonstrates, even circumstantially or by inference, that he or she (1) suffered
from a disability, or was regarded as suffering from a disability; (2) could
perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action
because of the disability or perceived disability. To establish a prima facie case,
a plaintiff must show ‘ “ ‘ “actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that
such actions were based on a [prohibited] discriminatory criterion . . . .” ’ ”
. . .’ The prima facie burden is light; the evidence necessary to sustain the
burden is minimal. As noted above, while the elements of a plaintiff’s prima
facie case can vary considerably, generally an employee need only offer
sufficient circumstantial evidence to give rise to a reasonable inference of
1554
Personnel Bd. (2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292], internal
citations omitted.)
• “Although the same statutory language that prohibits disability discrimination
also prohibits discrimination based on race, age, sex, and other factors, we
conclude that disability discrimination claims are fundamentally different from
the discrimination claims based on the other factors listed in section 12940,
subdivision (a). These differences arise because (1) additional statutory
provisions apply to disability discrimination claims, (2) the Legislature made
separate findings and declarations about protections given to disabled persons,
and (3) discrimination cases involving race, religion, national origin, age and
sex, often involve pretexts for the adverse employment action—an issue about
motivation that appears less frequently in disability discrimination cases.”
(Wallace, supra, 245 Cal.App.4th at p. 122.)
• “Summary adjudication of the section 12940(a) claim . . . turns on . . .
whether [plaintiff] could perform the essential functions of the relevant job with
or without accommodation. [Plaintiff] does not dispute that she was unable to
perform the essential functions of her former position as a clothes fitter with or
without accommodation. Under federal law, however, when an employee seeks
accommodation by being reassigned to a vacant position in the company, the
employee satisfies the ‘qualified individual with a disability’ requirement by
showing he or she can perform the essential functions of the vacant position
with or without accommodation. The position must exist and be vacant, and the
employer need not promote the disabled employee. We apply the same rule
here. To prevail on summary adjudication of the section 12940(a) claim,
[defendant] must show there is no triable issue of fact about [plaintiff]’s ability,
with or without accommodation, to perform the essential functions of an
available vacant position that would not be a promotion.” (Nadaf-Rahrov v. The
Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 965 [83 Cal.Rptr.3d
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
1556
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
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
1557
1559
New September 2003; Revised April 2007, December 2007, April 2009, December
2009, June 2010, December 2011, June 2012, June 2013
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
1560
other courts have said that it is the employee’s burden to prove that a reasonable
accommodation could have been made, i.e., that he or she was qualified for a
position in light of the potential accommodation. (See Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 978; see also Cuiellette, supra, 194 Cal.App.4th at p. 767
[plaintiff proves he or she is a qualified individual by establishing that he or she
can perform the essential functions of the position to which reassignment is
sought].) The question of whether the employee has to present evidence of other
suitable job descriptions and prove that a vacancy existed for a position that the
employee could do with reasonable accommodation may not be fully resolved.
No element has been included that requires the plaintiff to specifically request
reasonable accommodation. Unlike Government Code section 12940(n) on the
interactive process (see CACI No. 2546, Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process), section 12940(m) does
not specifically require that the employee request reasonable accommodation; it
requires only that the employer know of the disability. (See Prilliman, supra, 53
Cal.App.4th at pp. 950–951.)
Sources and Authority
• Reasonable Accommodation Required. Government Code section 12940(m).
• “Reasonable Accommodation” Explained. Government Code section 12926(p).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “There are three elements to a failure to accommodate action: ‘(1) the plaintiff
has a disability covered by the FEHA; (2) the plaintiff is a qualified individual
(i.e., he or she can perform the essential functions of the position); and (3) the
employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]’
” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th
1187, 1193–1194 [232 Cal.Rptr.3d 349].)
• “Under the FEHA, ‘reasonable accommodation’ means ‘a modification or
adjustment to the workplace that enables the employee to perform the essential
functions of the job held or desired.’ ” (Cuiellette, supra, 194 Cal.App.4th at p.
766.)
• “Reasonable accommodations include ‘[j]ob restructuring, part-time or modified
work schedules, reassignment to a vacant position, . . . and other similar
accommodations for individuals with disabilities.’ ” (Swanson v. Morongo
Unified School Dist. (2014) 232 Cal.App.4th 954, 969 [181 Cal.Rptr.3d 553],
original italics.)
• “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
1562
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 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
1563
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.)
• “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].)
• “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
1565
1566
1569
New September 2003; Revoked June 2013; Restored and Revised December 2013
Directions for Use
Give this instruction with CACI No. 2540, Disability Discrimination—Disparate
Treatment—Essential Factual Elements, or CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, or both,
if it is necessary to explain what is an “essential job duty.” (See Gov. Code,
1570
§§ 12926(f), 12940(a)(1); see also Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 743–744 [151 Cal.Rptr.3d 292].) While the employee has the
burden to prove that he or she can perform essential job duties, with or without
reasonable accommodation, it is unresolved which party has the burden of proving
that a job duty is essential. (See Lui v. City and County of San Francisco (2012)
211 Cal.App.4th 962, 972–973 [150 Cal.Rptr.3d 385].)
Sources and Authority
• Ability to Perform Essential Duties. Government Code section 12940(a)(1).
• “Essential Functions” Defined. Government Code section 12926(f).
• Evidence of Essential Functions. 2 California Code of Regulations section
11065(e)(2).
• Marginal Functions. 2 California Code of Regulations section 11065(e)(3).
• “ ‘ “Essential functions” means the fundamental job duties of the employment
position the individual with a disability holds or desires. “Essential functions”
does not include the marginal functions of the position.’ ‘ “Marginal functions”
of an employment position are those that, if not performed, would not eliminate
the need for the job or that could be readily performed by another employee or
that could be performed in an alternative way.’ ‘A job function may be
considered essential for any of several reasons, including, but not limited to,
any one or more of the following: [¶] (A) . . . [T]he reason the position exists
is to perform that function. [¶] (B) . . . [T]he limited number of employees
available among whom the performance of that job function can be distributed.
[¶] [And] (C) . . . the incumbent in the position is hired for his or her expertise
or ability to perform the particular [highly specialized] function.’ ” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 373 [184 Cal.Rptr.3d 9],
internal citations omitted.)
• “Evidence of ‘essential functions’ may include the employer’s judgment, written
job descriptions, the amount of time spent on the job performing the function,
the consequences of not requiring employees to perform the function, the terms
of a collective bargaining agreement, the work experiences of past incumbents
in the job, and the current work experience of incumbents in similar jobs.”
(Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 717–718 [214
Cal.Rptr.3d 113].)
• “The trial court’s essential functions finding is also supported by the evidence
presented by defendant corresponding to the seven categories of evidence listed
in [Government Code] section 12926(f)(2). ‘Usually no one listed factor will be
dispositive . . . .’ ” (Lui, supra, 211 Cal.App.4th at p. 977.)
• “The question whether plaintiffs could perform the essential functions of a
position to which they sought reassignment is relevant to a claim for failure to
accommodate under section 12940, subdivision (m), and to a claim for failure
to engage in the interactive process under section 12940, subdivision (n).”
(Atkins, supra, 8 Cal.App.5th at p. 717.)
1571
1572
1574
employees, and the number, type, and location of its facilities. [¶] (4) The type
of operations, including the composition, structure, and functions of the
workforce of the entity. [¶] (5) The geographic separateness or administrative or
fiscal relationship of the facility or facilities.’ (§ 12926, subd. (u).) ‘ “Whether a
particular accommodation will impose an undue hardship for a particular
employer is determined on a case by case basis” ’ and ‘is a multi-faceted, fact-
intensive inquiry.’ ” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696,
733 [214 Cal.Rptr.3d 113].)
• “[U]nder California law and the instructions provided to the jury, an employer
must do more than simply assert that it had economic reasons to reject a
plaintiff’s proposed reassignment to demonstrate undue hardship. An employer
must show why and how asserted economic reasons would affect its ability to
provide a particular accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 734,
original italics, internal citation omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250, 9:2345, 9:2366, 9:2367
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.80
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.51[4][b] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.35, 115.54, 115.100 (Matthew Bender)
1576
1581
1586
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 on Reasonable Accommodations under the Fair Housing Act
(May 17, 2004) https://www.hud.gov/offices/fheo/library/huddojstatement.pdf
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 946
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing
1589
1590
person, if the modifications may be necessary to afford the disabled person full
enjoyment of the premises. (Gov. Code, § 12927(c)(1).)
In element 2, if the plaintiff encountered a barrier before actually submitting an
application, such as discovering a policy that would make it impossible to live in
the unit, specify what he or she did to obtain the housing.
In element 3, select a term to describe the source of the plaintiff’s limitations. It
may be a statutory term such as “physical disability,” “mental disability,” or
“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 element 3, select the bracketed language on “history” of disability if the claim of
discrimination is based on a history of disability rather than a current actual
disability.
Modify element 3 if plaintiff was not actually disabled or had a history of
disability, but alleges denial of accommodation because he or she was perceived to
be disabled or associated with someone who has, or is perceived to have, a
disability. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].)
In element 5, specify the modifications that are alleged to be needed.
Element 7 may not apply if section 504 of the Rehabilitation Act of 1973
(applicable to federal subsidized housing) or Title II of the Americans With
Disabilities Act requires the landlord to incur the cost of reasonable modifications.
In the case of a rental, the landlord may, if it is reasonable to do so, condition
permission for a modification on the renter’s agreeing to restore the interior of the
premises to the condition that existed before the modification (other than for
reasonable wear and tear). (Gov. Code, § 12927(c)(1).) Include element 8 if the
premises to be physically altered is a rental unit, and the plaintiff agreed to
restoration. If the parties dispute whether restoration is reasonable, presumably the
defendant would have to prove reasonableness. (See Evid. Code, § 500 [party has
the burden of proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that s/he is asserting].)
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
1592
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].)
• “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.)
Secondary Sources
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice on Reasonable Modifications under the Fair Housing Act
(March 3, 2008)
https://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 946
7 California Real Estate Law and Practice, Ch. 214, Government Regulation and
Enforcement, § 214.41 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117, Civil Rights: Housing
Discrimination, § 117.14 (Matthew Bender)
2550–2559. Reserved for Future Use
1593
1594
New September 2003; Revised June 2012, December 2012, June 2013
Directions for Use
If element 1 is given, the court may need to instruct the jury on the statutory
definition of “employer” under the FEHA. Other covered entities under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
Element 7 requires that the plaintiff’s failure to comply with the conflicting job
requirement be a substantial motivating reason for the employer’s adverse action.
(See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d
392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason”
Explained.) Read the first option if there is no dispute as to whether the employer’s
acts constituted an adverse employment action. Read the second option and also
give CACI No. 2509, “Adverse Employment Action” Explained, if whether there
was an adverse employment action is a question of fact for the jury. If constructive
discharge is alleged, give the third option for element 7 and also give CACI No.
2510, “Constructive Discharge” Explained.
Federal courts construing Title VII of the Civil Rights Act of 1964 have held that
the threat of an adverse employment action is a violation if the employee
acquiesces to the threat and foregoes religious observance. (See, e.g., EEOC v.
Townley Engineering & Mfg. Co. (9th Cir.1988) 859 F.2d 610, 614 fn. 5.) While no
case has been found that construes the FEHA similarly, element 7 may be modified
if the court agrees that this rule applies. In the first option, a threat of discharge or
discipline may be inserted as an “other adverse employment action.” Or in the
second option, “subjected [name of plaintiff] to” may be replaced with “threatened
[name of plaintiff] with.”
Sources and Authority
• Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l).
• Scope of Religious Protection. Government Code section 12926(p).
• Scope of Religious Protection. Cal. Code Regs., tit. 2, § 11060(b).
• Undue Hardship. Cal. Code Regs., tit. 2, § 11062.
• “In evaluating an argument the employer failed to accommodate an employee’s
religious beliefs, the employee must establish a prima facie case that he or she
had a bona fide religious belief, of which the employer was aware, that conflicts
with an employment requirement . . . . Once the employee establishes a prima
facie case, then the employer must establish it initiated good faith efforts to
accommodate or no accommodation was possible without producing undue
hardship.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345,
370 [58 Cal.Rptr.2d 747], internal citation omitted.)
1595
1596
New September 2003; Revoked December 2012; Restored and Revised June 2013
Directions for Use
“Undue hardship” for purposes of religious creed discrimination is defined in the
same way that it is defined for disability discrimination. (See Gov. Code,
§§ 12940(l)(1), 12926(u).) CACI No. 2545, Disability Discrimination—Affırmative
Defense—Undue Hardship, may be given in religious accommodation cases also.
Sources and Authority
• Religious Accommodation Required Under Fair Employment and Housing Act.
Government Code section 12940(l)(1).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “If the employee proves a prima facie case and the employer fails to initiate an
accommodation for the religious practices, the burden is then on the employer
to prove it will incur an undue hardship if it accommodates that belief. ‘[T]he
extent of undue hardship on the employer’s business is at issue only where the
employer claims that it is unable to offer any reasonable accommodation
without such hardship.’ . . .” (Soldinger v. Northwest Airlines, Inc. (1996) 51
Cal.App.4th 345, 371 [58 Cal.Rptr.2d 747], internal citations omitted.)
• “It would be anomalous to conclude that by ‘reasonable accommodation’
Congress meant that an employer must deny the shift and job preference of
some employees, as well as deprive them of their contractual rights, in order to
accommodate or prefer the religious needs of others, and we conclude that Title
VII does not require an employer to go that far . . . ¶¶. Alternatively, the Court
of Appeals suggested that [the employer] could have replaced [plaintiff] on his
Saturday shift with other employees through the payment of premium
wages . . . . To require [the employer] to bear more than a de minimus cost
. . . is an undue hardship. Like abandonment of the seniority system, to require
[the employer] to bear additional costs when no such costs are incurred to give
other employees the days off that they want would involve unequal treatment of
employees on the basis of their religion.” (TWA v. Hardison (1977) 432 U.S. 63,
81, 84 [97 S.Ct. 2264, 53 L.Ed.2d 113], footnote omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 921
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
1597
California Fair Employment and Housing Act, ¶¶ 7:215, 7:305, 7:610, 7:631,
7:640–7:641 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.52[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.35[2][a]–[c], 115.54, 115.91 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters)
1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Religion,
pp. 227–234 (2000 supp.) at pp. 100–105
2562–2569. Reserved for Future Use
1598
there must be a causal link between the adverse action and the damage (see
element 7). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686,
713 [81 Cal.Rptr.3d 406].)
Element 5 requires that age discrimination be a substantial motivating reason for
the adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Under the McDonnell Douglas (McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof
and producing evidence, which is used in California for disparate-treatment cases
under FEHA, the employee must first present a prima facie case of discrimination.
The burden then shifts to the employer to produce evidence of a nondiscriminatory
reason for the adverse action. At that point, the burden shifts back to the employee
to show that the employer’s stated reason was in fact a pretext for a discriminatory
act.
Whether or not the employee has met his or her prima facie burden, and whether
or not the employer has rebutted the employee’s prima facie showing, are questions
of law for the trial court, not questions of fact for the jury. (See Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr.2d
448].) In other words, by the time that the case is submitted to the jury, the
plaintiff has already established his or her prima facie case, and the employer has
already proffered a legitimate, nondiscriminatory reason for the adverse
employment decision. The McDonnell Douglas shifting burden drops from the case.
The jury is left to decide which evidence it finds more convincing, that of the
employer’s discriminatory intent or that of the employer’s age-neutral reasons for
the employment decision. (See Muzquiz v. City of Emeryville (2000) 79
Cal.App.4th 1106, 1118, fn. 5 [94 Cal.Rptr.2d 579]).
Under FEHA, age-discrimination cases require the employee to show that his or
her job performance was satisfactory at the time of the adverse employment action
as a part of his or her prima facie case (see Sandell v. Taylor-Listug, Inc. (2010)
188 Cal.App.4th 297, 321 [115 Cal.Rptr.3d 453]), even though it is the employer’s
burden to produce evidence of a nondiscriminatory reason for the action. Poor job
performance is the most common nondiscriminatory reason that an employer
advances for the action. Even though satisfactory job performance may be an
element of the employee’s prima facie case, it is not an element that the employee
must prove to the trier of fact. Under element 5 and CACI No. 2507, the burden
remains with the employee to ultimately prove that age discrimination was a
substantial motivating reason for the action. (See Muzquiz, supra, 79 Cal.App.4th at
p. 1119.)
See also the Sources and Authority to CACI No. 2500, Disparate
Treatment—Essential Factual Elements.
1600
1603
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if plaintiff was not actually a member of the protected class, but
1605
1606
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2500, Disparate Treatment—Essential
Factual Elements, and CACI No. 2501, Affırmative Defense—Bona fide
Occupational Qualification.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2500.
Modify question 4 if plaintiff was not actually a member of the protected class, but
alleges discrimination because he or she was perceived to be a member, or
associated with someone who was or was perceived to be a member, of the
protected class. (See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
1609
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1610
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1612
1613
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2502, Disparate Impact—Essential
Factual Elements, CACI No. 2503, Affırmative Defense—Business Necessity/Job
Relatedness, and CACI No. 2504, Disparate Impact—Rebuttal to Business
Necessity/Job Relatedness Defense.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 2, as in
element 2 in CACI No. 2502.
If specificity is not required, users do not have to itemize all the damages listed in
question 10 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
1616
findings that are required in order to calculate the amount of prejudgment interest.
1617
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, August 2007, December 2010, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2505, Retaliation—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Read the second option for question 2 in cases involving a pattern of employer
harassment consisting of acts that might not individually be sufficient to constitute
retaliation, but taken as a whole establish prohibited conduct. Give both options if
the employee presents evidence supporting liability under both a sufficient-single-
act theory or a pattern-of-harassment theory. Also select “conduct” in question 3 if
the second option or both options are included for question 2.
1619
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1620
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2015,
December 2016
Directions for Use
This verdict form is based on CACI No. 2520, Quid pro quo Sexual
Harassment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question number
1, as in element 1 in CACI No. 2520.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
1622
1623
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2521A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521A. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
Modify question 2 if plaintiff was not actually a member of the protected class, but
alleges harassment because he or she was perceived to be a member, or associated
with someone who was or was perceived to be a member, of the protected class.
(See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1626
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2521B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Employer
or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521B. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1629
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
Derived from former CACI No. VF-2506 December 2007; Revised December 2010,
December 2016
Directions for Use
This verdict form is based on CACI No. 2521C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521C. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1632
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
1634
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2522A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2522A.
Modify question 2 if plaintiff was not actually a member of the protected class, but
alleges harassment because he or she was perceived to be a member, or associated
with someone who was or was perceived to be a member, of the protected class.
(See Gov. Code, § 12926(o).)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1635
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was the harassing conduct a substantial factor in causing harm
to [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
1637
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2522B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2521C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1638
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was the sexual favoritism a substantial factor in causing harm to
[name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
1640
Derived from former CACI No. VF-2507 December 2007; Revised December 2010,
December 2014, December 2016
Directions for Use
This verdict form is based on CACI No. 2522C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism— Essential Factual
Elements—Individual Defendant.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Relationships other than employer/employee can be substituted in question 1, as in
element 1 in CACI No. 2521C. Depending on the facts of the case, other factual
scenarios for employer liability can be substituted in questions 6 and 7, as in
element 6 of the instruction.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1641
Signed:
Presiding Juror
1643
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2007, December 2009, June
2010, December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2540, Disability
Discrimination—Disparate Treatment—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2540. Depending on the facts of the case, other factual
scenarios can be substituted in questions 3 and 6, as in elements 3 and 6 of the
instruction.
For question 3, select the claimed basis of discrimination: an actual disability, a
history of a disability, a perceived disability, or a perceived history of a disability.
For an actual disability, select “know that [name of plaintiff] had.” For a perceived
disability, select “treat [name of plaintiff] as if [he/she] had.”
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in question 3.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no requirement
that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
1644
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1645
Signed:
Presiding Juror
1647
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in questions 3
and 4. (Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no
requirement that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1648
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2009, December 2009, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, and
CACI No. 2545, Disability Discrimination—Affırmative Defense—Undue Hardship.
If a different affirmative defense is at issue, this form should be tailored
accordingly.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
Relationships other than employer/employee can be substituted in question 1, as in
element 1 of CACI No. 2541.
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in questions 3
and 4. (Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (l) [no
requirement that medical condition limit major life activity].)
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
1651
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1652
6. Yes No
6. If your answer to question 6 is no, then answer question 7. If
you answered yes, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. Was [name of plaintiff]’s failure to comply with the conflicting job
requirement a substantial motivating reason for [name of
defendant]’s [discharge of/refusal to hire/[other adverse
employment action]] [name of plaintiff]?
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. Was [name of defendant]’s failure to reasonably accommodate
[name of plaintiff]’s religious [belief/observance] a substantial
factor in causing harm to [name of plaintiff]?
8. Yes No
8. If your answer to question 8 is yes, then answer question 9. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
9. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
1654
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1655
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2012, June
2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2560, Religious Creed
Discrimination—Failure to Accommodate—Essential Factual Elements (see Gov.
Code, §§ 12926(u), 12940(l)) and CACI No. 2561, Religious Creed
Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 11 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
1658
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1659
[d. TOTAL $ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New April 2009; Revised December 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2546, Disability
Discrimination—Reasonable Accommodation—Failure to Engage in Interactive
Process.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in question 3.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement
that medical condition limit major life activity].)
Do not include the transitional language following question 7 and question 8 if the
only damages claimed are also claimed under Government Code section 12940(m)
on reasonable accommodation. Use CACI No. VF-2509, Disability
Discrimination—Reasonable Accommodation, or CACI No. VF-2510, Disability
Discrimination—Reasonable Accommodation—Affırmative Defense—Undue
Hardship, to claim these damages.
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
There is a split of authority as to whether the employee must also prove that
1662
1663
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New June 2010; Revised December 2010, June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 2527, Failure to Prevent Harassment,
Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity
Defendant. These questions should be added to the verdict form that addresses the
underlying claim of discrimination, retaliation, or harassment if the plaintiff also
asserts a separate claim against the employer for failure to prevent the underlying
conduct. The jury should not reach these questions unless it finds that the
underlying claim is proved.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
1665
1667
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2516–VF-2599. Reserved for Future Use
1669
As approved at the
Judicial Council’s Rules and Projects Committee July 2018
Meeting
and Judicial Council November 2018 Meeting
2
Judicial Council of California
Series 2600–5000
ISSN: 1549-7100
ISBN: 978-1-5221-5574-4 (print)
© 2018 by the Judicial Council of California. All rights reserved. No copyright is claimed by the Judicial Council of
California to the Table of Contents, Table of Statutes, Table of Cases, or Index.
© 2018, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed by Matthew
Bender & Company to the jury instructions, verdict forms, Directions for Use, Sources and Authority, User’s Guide,
Life Expectancy Tables, or Disposition Table.
CITE THIS PUBLICATION: Judicial Council of California Civil Jury Instructions (2018 edition)
Cite these instructions: “CACI No. .”
Cite these verdict forms: “CACI No. VF- .”
Editorial Office
230 Park Ave., 7th Floor, New York, NY 10169 (800) 543-6862
www.lexisnexis.com
(2018–Pub.1283)
USER GUIDE
iii
iv
TABLES
Disposition Table
Table of Cases
Table of Statutes
INDEX
vi
xi
xviii
xx
xxix
xxxi
xlv
To show that [he/she] was eligible for [family care/medical] leave, [name
of plaintiff] must prove all of the following:
1. That [name of plaintiff] was an employee of [name of defendant];
2. That [name of defendant] employed 50 or more employees within
75 miles of [name of plaintiff]’s workplace;
3. That at the time [name of plaintiff] [requested/began] leave, [he/
she] had more than 12 months of service with [name of defendant]
and had worked at least 1,250 hours for [name of defendant]
during the previous 12 months; and
4. That at the time [name of plaintiff] [requested/began] leave [name
of plaintiff] had taken no more than 12 weeks of family care or
medical leave in the 12-month period [define period].
For notice of the need for leave to be reasonable, [name of plaintiff] must
make [name of defendant] aware that [he/she] needs [family
care/medical] leave, when the leave will begin, and how long it is
expected to last. The notice can be verbal or in writing and does not
need to mention the law. An employer cannot require disclosure of any
medical diagnosis, but should ask for information necessary to decide
whether the employee is entitled to leave.
10
11
12
13
New September 2003; Revised December 2012, June 2013, May 2018
Directions for Use
Use this instruction in cases of alleged retaliation for an employee’s exercise of
rights granted by the California Family Rights Act (CFRA). (See Gov. Code,
§ 12945.2(l).) The instruction assumes that the defendant is plaintiff’s present or
former employer, and therefore it must be modified if the defendant is a
prospective employer or other person.
This instruction may also be given for a claim of retaliation under the New Parent
Leave Act. The “other protected activity” option of the opening paragraph and
elements 2 and 4 may be used to assert what is protected from retaliation under
this act. (See Gov. Code, § 12945.6(g), (h).) In element 1, use “new parent” leave
instead of “family care” or “medical.”
Both statutes reach a broad range of adverse employment actions short of actual
discharge. (See Gov. Code, §§ 12945.2(l), 12945.6(g).) Element 3 may be modified
to allege constructive discharge or adverse acts other than actual discharge. See
CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510,
“Constructive Discharge” Explained, for instructions under the Fair Employment
and Housing Act that may be adapted for use with this instruction.
14
Element 4 uses the term “substantial motivating reason” to express both intent and
causation between the employee’s exercise of a CFRA right and the adverse
employment action. “Substantial motivating reason” has been held to be the
appropriate standard under the discrimination prohibitions of the Fair Employment
and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether this standard applies to CFRA retaliation
cases has not been addressed by the courts.
Sources and Authority
• Retaliation Prohibited Under California Family Rights Act. Government Code
section 12945.2(l), (t).
• Retaliation Prohibited Under New Parent Leave Act. Government Code section
12945.6(g), (h).
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• “The elements of a cause of action for retaliation in violation of CFRA are
“ ‘(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to
take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an
adverse employment action, such as termination, fine, or suspension, because of
her exercise of her right to CFRA [leave].” ’ ” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 604 [210 Cal.Rptr.3d 59].)
• “Similar to causes of action under FEHA, the McDonnell Douglas burden
shifting analysis applies to retaliation claims under CFRA.” (Moore v. Regents
of University of California (2016) 248 Cal.App.4th 216, 248 [206 Cal.Rptr.3d
841].)
• “ ‘When an adverse employment action “follows hard on the heels of protected
activity, the timing often is strongly suggestive of retaliation.” ’ ” (Bareno v.
San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571 [212
Cal.Rptr.3d 682].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1058–1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1300,
12:1301 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other
Employee Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.32 (Matthew
Bender)
15
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][c] (Matthew Bender)
2621–2629. Reserved for Future Use
16
Elements 1 and 2 set forth the eligibility requirements for employer and employee
under the act. (See Gov. Code, § 12945.6(a)(1).) These elements may be omitted if
there are no disputed facts over the act’s applicability to the parties.
For an instruction that can be modified for use for a claim of retaliation under the
New Parent Leave Act (see Gov. Code, § 12945.6(h)), see CACI No. 2620, CFRA
Rights Retaliation—Essential Factual Elements.
Sources and Authority
• New Parent Leave Act. Government Code section 12945.6.
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1060,
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, 12:852–12:857, 12:1201, 12:1300 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 5:40 (Thomson Reuters)
2631–2699. Reserved for Future Use
18
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2600, Violation of CFRA
Rights—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Other factual situations can be substituted in question 2 as in element 2 of CACI
No. 2600.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
20
21
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
23
24
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including
[physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2013, December
2016
Directions for Use
This verdict form is based on CACI No. 2620, CFRA Rights Retaliation—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
26
27
30
New September 2003; Revised December 2005, December 2013, June 2015
Directions for Use
This instruction is for use in a civil action for payment of wages. Depending on the
allegations in the case, the definition of “wages” may be modified to include
additional compensation, such as earned vacation, nondiscretionary bonuses, or
severance pay.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of 18 wage orders, adopted by the Industrial Welfare
Commission. All of the wage orders define hours worked as “the time during which
an employee is subject to the control of an employer, and includes all the time the
employee is suffered or permitted to work, whether or not required to do so.” (See,
e.g., Wage Order 4, subd. 2(K).) The two parts of the definition are independent
factors, each of which defines whether certain time spent is compensable as “hours
worked.” Thus, an employee who is subject to an employer’s control does not have
to be working during that time to be compensated. Courts have identified various
factors bearing on an employer’s control during on-call time. However, what
qualifies as hours worked is a question of law. (Mendiola v. CPS Security Solutions,
Inc. (2015) 60 Cal.4th 833, 838–840 [182 Cal.Rptr.3d 124, 340 P.3d 355].)
Therefore, the jury should not be instructed on the factors to consider in
determining whether the employer has exercised sufficient control over the
employee during the contested period to require compensation.
However, the jury should be instructed to find any disputed facts regarding the
factors. For example, one factor is whether a fixed time limit for the employee to
respond to a call was unduly restrictive. Whether there was a fixed time limit
would be a disputed fact for the jury. Whether it was unduly restrictive would be a
matter of law for the court.
31
The court may modify this instruction or write an appropriate instruction if the
defendant employer claims a permissible setoff from the plaintiff employee’s
unpaid wages. Under California Wage Orders, an employer may deduct from an
employee’s wages for cash shortage, breakage, or loss of equipment if the employer
proves that this was caused by a dishonest or willful act or by the gross negligence
of the employee. (See, e.g., Cal. Code Regs., tit. 8, § 11010, subd. 8.)
Sources and Authority
• Right of Action for Wage Claim. Labor Code section 218.
• Wages Due on Discharge. Labor Code section 201.
• Wages Due on Quitting. Labor Code section 202.
• “Wages” Defined, Labor Code section 200.
• Wages Partially in Dispute. Labor Code section 206(a).
• Deductions From Pay. Labor Code section 221, California Code of Regulations,
Title 8, section 11010, subdivision 8.
• Nonapplicability to Government Employers. Labor Code section 220
• Employer Not Entitled to Release. Labor Code section 206.5.
• Private Agreements Prohibited. Labor Code section 219(a).
• “As an employee, appellant was entitled to the benefit of wage laws requiring
an employer to promptly pay all wages due, and prohibiting the employer from
deducting unauthorized expenses from the employee’s wages, deducting for
debts due the employer, or recouping advances absent the parties’ express
agreement.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302,
1330 [200 Cal.Rptr.3d 315].)
• “The Labor Code’s protections are ‘designed to ensure that employees receive
their full wages at specified intervals while employed, as well as when they are
fired or quit,’ and are applicable not only to hourly employees, but to highly
compensated executives and salespeople.” (Davis, supra, 245 Cal.App.4th at p.
1331, internal citation omitted.)
• “[W]ages include not just salaries earned hourly, but also bonuses, profit-sharing
plans, and commissions.” (Davis, supra, 245 Cal.App.4th at p. 1332, fn. 20.)
• “[A]n employee’s on-call or standby time may require compensation.”
(Mendiola, supra, 60 Cal.4th at p. 840.)
• “[Labor Code] section 221 has long been held to prohibit deductions from an
employee’s wages for cash shortages, breakage, loss of equipment, and other
business losses that may result from the employee’s simple negligence.”
(Hudgins v. Neiman Marcus Group, Inc. (1995) 34 Cal.App.4th 1109, 1118 [41
Cal.Rptr.2d 46].)
• “[A]n employer is not entitled to a setoff of debts owing it by an employee
against any wages due that employee.” (Barnhill v. Robert Saunders & Co.
32
33
New September 2003; Revised June 2005, June 2014, June 2015
Directions for Use
The court must determine the prevailing minimum wage rate from applicable state
or federal law. (See, e.g., Cal. Code Regs., tit. 8, § 11000.) The jury must be
instructed accordingly.
Both liquidated damages (See Lab. Code, § 1194.2) and civil penalties (See Lab.
Code, § 1197.1) may be awarded on a claim for nonpayment of minimum wage.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of 18 wage orders, adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) The California Labor Code and the
IWC’s wage orders provide that certain employees are exempt from minimum wage
requirements (for example, outside salespersons; see Lab. Code, § 1171), and that
under certain circumstances employers may claim credits for meals and lodging
against minimum wage pay (see Cal. Code Regs., tit. 8, § 11000, subd. 3, § 11010,
subd. 10, and § 11150, subd. 10(B)). The assertion of an exemption from wage and
hour laws is an affirmative defense. (See generally Ramirez v. Yosemite Water Co.
(1999) 20 Cal.4th 785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) The advisory
committee has chosen not to write model instructions for the numerous fact-specific
affirmative defenses to minimum wage claims. (Cf. CACI No. 2720, Affırmative
Defense—Nonpayment of Overtime—Executive Exemption, and CACI No. 2721,
Affırmative Defense—Nonpayment of Overtime—Administrative Exemption.)
34
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, §§ 250.13[1][a], 250.14[d] (Matthew Bender)
California Civil Practice: Employment Litigation §§ 4:67, 4:76 (Thomson Reuters)
36
New September 2003; Revised June 2005, June 2014, June 2015
Directions for Use
The court must determine the overtime compensation rate under applicable state or
federal law. (See, e.g., Lab. Code, §§ 1173, 1182; Cal. Code Regs., tit. 8, § 11000,
subd. 2, § 11010, subd. 4(A), and § 11150, subd. 4(A).) The jury must be instructed
accordingly. It is possible that the overtime rate will be different over different
periods of time.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code, and a series of 18 wage orders adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2014) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) Both the Labor Code and the IWC wage
orders provide for certain exemptions from overtime laws. (See, e.g., Lab. Code,
§ 1171 [outside salespersons are exempt from overtime requirements]). The
assertion of an employee’s exemption is an affirmative defense, which presents a
mixed question of law and fact. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th
785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) For instructions on exemptions, see
CACI No. 2720, Affırmative Defense—Nonpayment of Overtime—Executive
Exemption, and CACI No. 2721, Affırmative Defense—Nonpayment of
Overtime—Administrative Exemption.
37
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶¶ 11:1342, 11:1478.5 (The
Rutter Group)
1 Wilcox, California Employment Law, Ch. 3, Overtime Compensation and
Regulation of Hours Worked, §§ 3.03[1], 3.04[1], 3.07[1], 3.08[1], 3.09[1]; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.72
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.40 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:76 (Thomson Reuters)
39
• “Absent an explicit, mutual wage agreement, a fixed salary does not serve to
compensate an employee for the number of hours worked under statutory
overtime requirements. . . . [¶] Since there was no evidence of a wage
agreement between the parties that appellant’s . . . per week compensation
represented the payment of minimum wage or included remuneration for hours
worked in excess of 40 hours per week, . . . appellant incurred damages of
uncompensated overtime.” (Hernandez, supra, 199 Cal.App.3d at pp. 725–726,
internal citations omitted.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment
of Wages, ¶ 11:456 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment
of Overtime Compensation, ¶ 11:955.2 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶ 11:1478.5 (The Rutter
Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial
Remedies Under Wage and Hour Laws, § 5.72[1] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.40 (Matthew Bender)
41
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant] for [unpaid wages/[insert other claim]], then [name of
plaintiff] may be entitled to receive an award of a civil penalty based on
the number of days [name of defendant] failed to pay [his/her] [wages/
other] when due.
To recover the civil penalty, [name of plaintiff] must prove all of the
following:
1. The date on which [name of plaintiff]’s employment ended;
2. [That [name of defendant] failed to pay all wages due by [insert
date];]
2. [or]
2. [The date on which [name of defendant] paid [name of plaintiff] all
wages due;]
3. [Name of plaintiff]’s daily wage rate at the time [his/her]
employment with [name of defendant] ended; and
4. That [name of defendant] willfully failed to pay these wages.
The term “wages” includes all amounts for labor performed by an
employee, whether the amount is calculated by time, task, piece,
commission, or some other method.
The term “willfully” means that the employer intentionally failed or
refused to pay the wages.
(2016) 1 Cal.5th 615, 626–627 [206 Cal.Rptr.3d 545, 377 P.3d 796].)
• “[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].)
• “[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.)
• “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.)
• “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
44
45
[Name of defendant] claims that [he/she/it] is not liable for [specify wage
order violations, e.g., failure to pay minimum wage] because [name of
plaintiff] was not [his/her/its] employee, but rather an independent
contractor. To establish this defense, [name of defendant] must prove all
of the following:
a. That [name of plaintiff] is [under the terms of the contract and in
fact] free from the control and direction of [name of defendant] in
connection with the performance of the work that [name of
plaintiff] was hired to do;
b. That [name of plaintiff] performs work for [name of defendant]
that is outside the usual course of [name of defendant]’s business;
and
c. That [name of plaintiff] is customarily engaged in an
independently established trade, occupation, or business of the
same nature as that involved in the work performed for [name of
defendant].
as involving the three factors of the instruction. (Dynamex Operations W., supra, 4
Cal.5th at pp. 916–917.)
The rule on employment status has been that if there are disputed facts, it’s for the
jury to decide whether one is an employee or an independent contractor. (Espejo v.
The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 342 [221 Cal.Rptr.3d 1].)
However, on undisputed facts, the court may decide that the relationship is
employment as a matter of law. (Dynamex Operations W., supra, 4 Cal.5th at p.
963.) The court may address the three factors in any order when making this
determination, and if the defendant’s undisputed facts fail to prove any one of
them, the inquiry ends; the plaintiff is an employee as a matter of law and the
question does not reach the jury.
If, however, there is no failure of proof as to any of the three factors without
resolution of disputed facts, the determination of whether the plaintiff was
defendant’s employee should be resolved by the jury using this instruction. If the
court concludes based on undisputed facts that the defendant has proved one or
more of the three factors, that factor (or factors) should be removed from the jury’s
consideration and the jury should only consider whether the employer has proven
those factors that cannot be determined without further factfinding.
Include the bracketed language in element 1 if there is a contract between the
parties covering the work at issue.
Sources and Authority
• “The ABC test presumptively considers all workers to be employees, and
permits workers to be classified as independent contractors only if the hiring
business demonstrates that the worker in question satisfies each of three
conditions: (a) that the worker is free from the control and direction of the hirer
in connection with the performance of the work, both under the contract for the
performance of the work and in fact; and (b) that the worker performs work
that is outside the usual course of the hiring entity’s business; and (c) that the
worker is customarily engaged in an independently established trade,
occupation, or business of the same nature as that involved in the work
performed.” (Dynamex Operations W., supra, 4 Cal.5th at pp. 955–956.)
• “[W]e conclude that there is no need in this case to determine whether the
exercise control over wages, hours or working conditions definition is intended
to apply outside the joint employer context, because we conclude that the suffer
or permit to work standard properly applies to the question whether a worker
should be considered an employee or, instead, an independent contractor, and
that under the suffer or permit to work standard, the trial court class
certification order at issue here should be upheld. (Dynamex Operations W.,
supra, 4 Cal.5th at p. 943.)
• “A business that hires any individual to provide services to it can always be
said to knowingly ‘suffer or permit’ such an individual to work for the business.
A literal application of the suffer or permit to work standard, therefore, would
bring within its reach even those individuals hired by a business–including
47
49
52
employee, not a union, since the latter can neither be fired nor quit.” (Service
Employees Internat. Union, Local 193, AFL-CIO v. Hollywood Park, Inc.
(1983) 149 Cal.App.3d 745, 765 [197 Cal.Rptr. 316].)
• “Labor Code section 1050 applies only to misrepresentations made to
prospective employers other than the defendant. [¶] . . . [T]he Legislature
intended that Labor Code section 1050 would apply only to misstatements to
other potential employers, not to misstatements made internally by employees
of the party to be charged.” (Kelly v. General Telephone Co. (1982) 136
Cal.App.3d 278, 288–289 [186 Cal.Rptr. 184].)
• A communication without malice solicited by a prospective employer from a
former employer would be privileged in accordance with Civil Code section
47(c). (See O’Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040,
1047 [238 Cal.Rptr. 715].)
• “We . . . recognize that ‘[t]he primary purpose of punitive damages is to
punish the defendant and make an example of him.’ Since this purpose is the
same as the treble damages authorized by Labor Code section 1054, we do not
sanction a double recovery for the plaintiff. In the new trial on damages, the
jury should be instructed on the subject of punitive damages based on malice or
oppression. Any verdict finding compensatory damages must be trebled by the
court. Plaintiff may then elect to have judgment entered in an amount which
reflects either the statutory trebling, or the compensatory and punitive
damages.” (Marshall v. Brown (1983) 141 Cal.App.3d 408, 419 [190 Cal.Rptr.
392].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 284, 349, 352, 354–359, 381, 413, 417
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 4:351, 5:532, 5:540, 5:892.10, 16:493
4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to
Wrongful Termination, § 63.06[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, §§ 249.22[3][a], 249.31, 249.81 (Matthew Bender)
California Civil Practice: Employment Litigation § 6:29 (Thomson Reuters)
2712–2719. Reserved for Future Use
54
employee is an exempt executive. (See Lab. Code, § 515(a).) The employer must
prove all of the elements. (United Parcel Service Wage & Hour Cases (2010) 190
Cal.App.4th 1001, 1014 [118 Cal.Rptr.3d 834].) For an instruction for the
affirmative defense of administrative exemption, see CACI No. 2721, Affırmative
Defense—Nonpayment of Overtime—Administrative Exemption.
This instruction is based on Industrial Welfare Commission Wage Order 9, which is
applicable to the transportation industry. (See 8 Cal. Code Regs., § 11090.)
Different wage orders are applicable to different industries. (See Lab. Code, § 515.)
The requirements of the executive exemptions under the various wage orders are
essentially the same. (Cf., e.g., 8 Cal. Code Regs., § 11040, Wage Order 4,
applicable to persons employed in professional, technical, clerical, mechanical, and
similar occupations.).
The exemption requires that the employee be primarily engaged in duties that
“meet the test of the exemption.” (See 8 Cal. Code Regs., § 11090 sec. 1(A)(1)(e),
sec. 2(J) (“primarily” means more than one-half the employee’s work time).) This
requirement is expressed in element 5. However, the contours of executive duties
are quite detailed in the wage orders, which incorporate federal regulations under
the Fair Labor Standards Act and also provide some specific examples. (See also
Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 802 [85 Cal.Rptr.2d 844,
978 P.2d 2].) In many cases, it will be advisable to instruct further with details
from the applicable wage order and regulations as to what constitutes “executive
duties” in element 5.
Include the optional last paragraph if a particular work activity arguably involves
more than one purpose and could be characterized as exempt or nonexempt,
depending on its primary purpose.
This instruction may be expanded to provide examples of the specific exempt and
nonexempt activities relevant to the work at issue. (See, e.g., Heyen v. Safeway,
Inc. (2013) 216 Cal.App.4th 795, 808–809 [157 Cal.Rptr.3d 280].)
Sources and Authority
• Exemptions to Overtime Requirements. Labor Code section 515(a).
• “[T]he assertion of an exemption from the overtime laws is considered to be an
affirmative defense, and therefore the employer bears the burden of proving the
employee’s exemption.” (Ramirez, supra, 20 Cal.4th at pp. 794–795.)
• “In order to discharge its burden to show [plaintiff] was exempt as an executive
employee pursuant to Wage Order 9, [defendant] was required to demonstrate
the following: (1) his duties and responsibilities involve management of the
enterprise or a ‘customarily recognized department or subdivision thereof’; (2)
he customarily and regularly directs the work of two or more employees; (3) he
has the authority to hire or terminate employees, or his suggestions as to hiring,
firing, promotion or other changes in status are given ‘particular weight’; (4) he
customarily and regularly exercises discretion and independent judgment; (5) he
is primarily engaged in duties that meet the test of the exemption; and (6) his
56
monthly salary is equivalent to no less than two times the state minimum wage
for full-time employment.” (United Parcel Service Wage & Hour Cases, supra,
190 Cal.App.4th at p. 1014 [citing 8 Cal. Code Regs., § 11090, subd. 1(A)(1)].)
• “Determining whether or not all of the elements of the exemption have been
established is a fact-intensive inquiry.” (United Parcel Service Wage & Hour
Cases, supra, 190 Cal.App.4th at p. 1014.)
• “Review of the determination that [plaintiff] was not an exempt employee is a
mixed question of law and fact. Whether an employee satisfies the elements of
the exemption is a question of fact reviewed for substantial evidence. The
appropriate manner of evaluating the employee’s duties is a question of law that
we review independently.” (Heyen, supra, 216 Cal.App.4th at p. 817, internal
citations omitted.)
• “The appropriateness of any employee’s classification as exempt must be based
on a review of the actual job duties performed by that employee. Wage Order 9
expressly provides that ‘[t]he work actually performed by the employee during
the course of the workweek must, first and foremost, be examined and the
amount of time the employee spends on such work, together with the employer’s
realistic expectations and the realistic requirements of the job, shall be
considered . . . .’ No bright-line rule can be established classifying everyone
with a particular job title as per se exempt or nonexempt—the regulations
identify job duties, not job titles. ‘A job title alone is insufficient to establish the
exempt status of an employee. The exempt or nonexempt status of any
particular employee must be determined on the basis of whether the employee’s
salary and duties meet the requirements of the regulations . . . .’ ” (United
Parcel Service Wage & Hour Cases, supra, 190 Cal.App.4th at p. 1014–1015,
original italics, internal citation omitted.)
• “This is not a day-by-day analysis. The issue is whether the employees ‘ “spend
more than 51% of their time on managerial tasks in any given workweek.” ’ ”
(Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, 473, fn. 36 [216 Cal.Rptr.3d
390])
• “Put simply, ‘the regulations do not recognize “hybrid” activities—i.e., activities
that have both “exempt” and “nonexempt” aspects. Rather, the regulations
require that each discrete task be separately classified as either “exempt’ or
“nonexempt.” [Citations.]’ [¶] We did not state, however, that the same task
must always be labeled exempt or nonexempt: ‘[I]dentical tasks may be
“exempt” or ‘nonexempt” based on the purpose they serve within the
organization or department.’ ” (Batze, supra, 10 Cal.App.5th at p. 474.)
• “[T]he federal regulations incorporated into Wage Order 7 do not support the
‘multi-tasking’ standard proposed by [defendant]. Instead, they suggest, as the
trial court correctly instructed the jury, that the trier of fact must categorize
tasks as either ‘exempt’ or ‘nonexempt’ based on the purpose for which
[plaintiff] undertook them.” (Heyen, supra, 216 Cal.App.4th at p. 826.)
• “Wage Order 4 refers to compensation in the form of a ‘salary.’ It does not
57
define the term. The regulation does not use a more generic term, such as
‘compensation’ or ‘pay.’ Either of these terms would encompass hourly wages, a
fixed annual salary, and anything in between. ‘Salary’ is a more specific form of
compensation. A salary is generally understood to be a fixed rate of pay as
distinguished from an hourly wage. Thus, use of the word ‘salary’ implies that
an exempt employee’s pay must be something other than an hourly wage.
California’s Labor Commission noted in an opinion letter dated March 1, 2002,
that the Division of Labor Standards Enforcement (DLSE) construes the IWC
wage orders to incorporate the federal salary-basis test for purposes of
determining whether an employee is exempt or nonexempt.” (Negri v. Koning &
Associates (2013) 216 Cal.App.4th 392, 397–398 [156 Cal.Rptr.3d 697, footnote
omitted.)
• “[T]he costs incurred by an employer to provide an employee with board,
lodging or other facilities may not count towards the minimum salary amount
required for exemption . . . .” (Kao v. Holiday (2017) 12 Cal.App.5th 947, 958
[219 Cal.Rptr.3d 580].)
• “The rule is that state law requirements for exemption from overtime pay must
be at least as protective of the employee as the corresponding federal standards.
Since federal law requires that, in order to meet the salary basis test for
exemption the employee would have to be paid a predetermined amount that is
not subject to reduction based upon the number of hours worked, state law
requirements must be at least as protective.” (Negri, supra, 216 Cal.App.4th at
p. 398, internal citation omitted.)
• “Under California law, to determine whether an employee was properly
classified as ‘exempt,’ the trier of fact must look not only to the ‘work actually
performed by the employee during the . . . workweek,’ but also to the
‘employer’s realistic expectations and the realistic requirements of the job.’ ”
(Heyen, supra, 216 Cal.App.4th at p. 828.)
• “Having recognized California’s distinctive quantitative approach to determining
which employees are outside salespersons, we must then address an issue
implicitly raised by the parties that caused some confusion in the trial court and
the Court of Appeal: Is the number of hours worked in sales-related activities to
be determined by the number of hours that the employer, according to its job
description or its estimate, claims the employee should be working in sales, or
should it be determined by the actual average hours the employee spent on sales
activity? The logic inherent in the IWC’s quantitative definition of outside
salesperson dictates that neither alternative would be wholly satisfactory. On the
one hand, if hours worked on sales were determined through an employer’s job
description, then the employer could make an employee exempt from overtime
laws solely by fashioning an idealized job description that had little basis in
reality. On the other hand, an employee who is supposed to be engaged in sales
activities during most of his working hours and falls below the 50 percent mark
due to his own substandard performance should not thereby be able to evade a
valid exemption. A trial court, in determining whether the employee is an
58
outside salesperson, must steer clear of these two pitfalls by inquiring into the
realistic requirements of the job. In so doing, the court should consider, first
and foremost, how the employee actually spends his or her time. But the trial
court should also consider whether the employee’s practice diverges from the
employer’s realistic expectations, whether there was any concrete expression of
employer displeasure over an employee’s substandard performance, and whether
these expressions were themselves realistic given the actual overall requirements
of the job.” (Ramirez, supra, 20 Cal.4th at pp. 801–802, original italics.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 392 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions—In General, ¶ 11:345 et seq. (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 2, Minimum Wages, §§ 2.04, 2.06
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.71 (Matthew Bender)
Simmons, Wage and Hour Manual for California Employers, Ch. 2, Coverage of
Wage and Hour Laws (Castle Publications Limited)
Simmons, Wage and Hour Manual for California Employers, Ch. 10, Exemptions
(Castle Publications Limited)
59
65
68
[Name of plaintiff] claims that [he/she] 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] with regard to skill, effort, and
responsibility; and
3. That [name of plaintiff] was working under similar working
conditions as the other person[s].
action under section 1197.5 that alleges sexual discrimination by the payment of
unequal wages. In the equal pay context, the burden-shifting test requires only
that the plaintiff must show that the employer pays workers of one sex more
than workers of the opposite sex for equal work. [Citation]. If the plaintiff does
so, the employer then has the burden of showing that one of the exceptions
listed in section 1197.5 is applicable. [Citation]. If the employer does so, the
employee may show that the employer’s stated reasons are pretextual.
[Citation].” (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 626 [3
Cal.Rptr.3d 844].)
• “The California statute is nearly identical to the federal Equal Pay Act of 1963.
(29 U.S.C. § 206(d)(1).) Accordingly, in the absence of California authority, it is
appropriate to rely on federal authorities construing the federal statute:
‘Although state and federal antidiscrimination laws “differ in some particulars,
their objectives are identical, and California courts have relied upon federal law
to interpret analogous provisions of the state statute.” ’ ” (Green, supra, 111
Cal.App.4th at p. 623 [decided before passage of the Fair Pay Act of 2015,
which introduced significant differences between federal and state law].)
• “To establish her prima facie case, [plaintiff] had to show not only that she is
paid lower wages than a male comparator for equal work, but that she has
selected the proper comparator. ‘The EPA does not require perfect diversity
between the comparison classes, but at a certain point, when the challenged
policy effects [sic] both male and female employees equally, there can be no
EPA violation. [Citation.] [A plaintiff] cannot make a comparison of one
classification composed of males and females with another classification of
employees also composed of males and females.’ ” (Hall v. County of Los
Angeles (2007) 148 Cal.App.4th 318, 324–325 [55 Cal.Rptr.3d 732].)
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)
70
72
[Name of defendant] claims that [specify bona fide factor other than sex,
race, or ethnicity] is a legitimate factor other than [sex/race/ethnicity]
that justifies paying [name of plaintiff] at a wage rate that is less than
the rate paid to employees of [the opposite sex/another race/another
ethnicity].
[Specify factor] is a factor that justifies the pay differential only if [name
of defendant] proves all of the following:
1. That the factor is not based on or derived from a [sex/race/
ethnicity]-based differential in compensation;
2. That the factor is job related with respect to [name of plaintiff]’s
position; and
3. That the factor is consistent with a business necessity.
A “business necessity” means an overriding legitimate business purpose
such that the factor effectively fulfills the business purpose it is
supposed to serve.
This defense does not apply, however, if [name of plaintiff] proves that an
alternative business practice exists that would serve the same business
purpose without producing the pay differential.
74
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392,
294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.)
Whether this standard applies to the Equal Pay Act retaliation cases has not been
addressed by the courts.
Sources and Authority
• Retaliation Prohibited Under Equal Pay Act. Labor Code section 1197.5(k).
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 430, 431
Chin, et al., California Practice Guide: Employment Litigation, Ch. 11-G,
Compensation—Wage Discrimination, ¶ 11:1077.20 (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)
2744–2799. Reserved for Future Use
76
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised December 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2711, Nonpayment of Wages—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
77
findings that are required in order to calculate the amount of prejudgment interest.
78
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2701, Nonpayment of Minimum
Wage—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. If there are multiple causes
of action, users may wish to combine the individual forms into one form. If
different damages are recoverable on different causes of action, replace the
damages tables in all of the verdict forms with CACI No. VF-3920, Damages on
Multiple Legal Theories.
79
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
80
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
81
New September 2003; Revised December 2010, June 2015, December 2016
Directions for Use
This verdict form is based on CACI No. 2702, Nonpayment of Overtime
Compensation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
82
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
83
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2704, Damages—Waiting-Time Penalty for
Nonpayment of Wages. Depending on the facts of the case, other factual scenarios
can be substituted in questions 2, 3, and 4, as in elements 2, 3, and 4 in the
instruction.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
84
plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2710, Solicitation of Employee by
86
87
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2700, Preventing Subsequent Employment
by Misrepresentation—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
89
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2706–VF-2799. Reserved for Future Use
90
91
must occur “in the course of the employment.” This concept “ordinarily refers
to the time, place, and circumstances under which the injury occurs.” Thus
“ ‘[a]n employee is in the “course of his employment” when he does those
reasonable things which his contract with his employment expressly or
impliedly permits him to do.’ ” And, ipso facto, an employee acts within the
course of his employment when “ ‘performing a duty imposed upon him by his
employer and one necessary to perform before the terms of the contract [are]
mutually satisfied.’ ” ’ [¶] ‘On the other hand, the statute requires that an injury
“arise out of” the employment. . . . It has long been settled that for an injury to
“arise out of the employment” it must “occur by reason of a condition or
incident of [the] employment . . . .” That is, the employment and the injury
must be linked in some causal fashion.’ ” (LaTourette v. Workers’ Comp.
Appeals Bd. (1998) 17 Cal.4th 644, 651 [72 Cal.Rptr.2d 217, 951 P.2d 1184],
internal citations and footnote omitted.)
• “The requirements that an injury arise out of employment or be proximately
caused by employment are sometimes referred to together as the requirement of
industrial causation. It is a looser concept of causation than the concept of
proximate cause employed in tort law. In general, the industrial causation
requirement is satisfied ‘if the connection between work and the injury [is] a
contributing cause of the injury . . . .’ ” (Lee v. West Kern Water Dist. (2016) 5
Cal.App.5th 606, 624 [210 Cal.Rptr.3d 362], internal citation omitted.)
• “For our purposes here, it is important that ‘arising out of’ and ‘in the course
of’ are two separate requirements. Even if it is conceded that an employee was
injured while performing job tasks in the workplace during working hours, the
exclusivity rule applies only if it also is shown that the work was a contributing
cause of the injury.” (Lee, supra, 5 Cal.App.5th at p. 625.)
• “The jury could properly make this finding [that conduct was not within scope
of employment] by applying special instruction No. 5, the instruction stating
that an employer’s conduct falls outside the workers’ compensation scheme
when an employer steps outside of its proper role or engages in conduct
unrelated to the employment. This instruction stated the doctrine of Fermino
correctly.” (Lee, supra, 5 Cal.App.5th at pp. 628–629.)
• “The concept of ‘scope of employment’ in tort is more restrictive than the
phrase ‘arising out of and in the course of employment,’ used in workers’
compensation.” (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86
Cal.App.4th 1053, 1057 [103 Cal.Rptr.2d 790], internal citations omitted.)
• “Whether an employee’s injury arose out of and in the course of her
employment is generally a question of fact to be determined in light of the
circumstances of the particular case. However, where the facts are undisputed,
resolution of the question becomes a matter of law.” (Wright v. Beverly Fabrics,
Inc. (2002) 95 Cal.App.4th 346, 353 [115 Cal.Rptr.2d 503], internal citations
omitted.)
• “Injuries sustained while an employee is performing tasks within his or her
96
employment contract but outside normal work hours are within the course of
employment. The rationale is that the employee is still acting in furtherance of
the employer’s business.” (Wright, supra, 95 Cal.App.4th at p. 354.)
Secondary Sources
2 Witkin, Summary of California Law (11th ed. 2017) Workers’ Compensation,
§§ 23–49
Chin, et al., California Practice Guide: Employment Litigation, Ch. 15-F,
Preemption Defenses—California Workers’ Compensation Act Preemption
¶¶ 15:520 et seq., 15:555 (The Rutter Group)
1 Hanna, California Law of Employee Injuries and Workers’ Compensation (2d ed.)
Ch. 4, §§ 4.03–4.06 (Matthew Bender)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 10, The Injury,
§ 10.09 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.10
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§§ 10.02, 10.03[3], 10.10 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.310, 577.530 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
97
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 43
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:655, 5:656–5:657, 15:527, 15:566–15:567, 15:570–15:571
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§§ 20.12[1][b], 20.41 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.17, 577.314[2] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
100
dual capacity doctrine.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 720 [30
Cal.Rptr.2d 18, 872 P.2d 559], internal citation omitted.)
• “In general, the Workers’ Compensation Act provides an employee with his or
her exclusive remedy for a work-related injury. Subject to narrow exceptions,
‘where the . . . conditions of compensation concur,’ an injured employee
cannot maintain a civil action against his or her employer or another
employee.” (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430
[124 Cal.Rptr.2d 227], internal citation omitted.)
• “[A]n employee seeking to state a cause of action against an employer under
section 3602(b)(2) must ‘in general terms’ plead facts that if found true by the
trier of fact, establish the existence of three essential elements: (1) the employer
knew that the plaintiff had suffered a work-related injury; (2) the employer
concealed that knowledge from the plaintiff; and (3) the injury was aggravated
as a result of such concealment.” (Palestini v. General Dynamics Corp. (2002)
99 Cal.App.4th 80, 89–90 [120 Cal.Rptr.2d 741], internal citation omitted.)
• “While there are no cases defining the term ‘fraudulent concealment’ as used in
the section, its general meaning is not difficult to discern. According to both
statute and case law, the failure to disclose facts may constitute fraud if the
party with knowledge has a duty to make disclosure. We have no reason to
believe that the term ‘fraudulent concealment’ as used in subdivision (b)(2) was
intended to have a meaning other than this.” (Foster v. Xerox Corp. (1985) 40
Cal.3d 306, 309–310 [219 Cal.Rptr. 485, 707 P.2d 858], internal citations
omitted.)
• “An employer’s actual knowledge of the existence of an employee’s injury
connected with the employment is a necessary prerequisite to establishing a
claim against the employer for fraudulent concealment under section 3602(b)(2).
This principle is based on the rationale that an employer cannot be held liable
under section 3602(b)(2) for concealing something of which it had no
knowledge.” (Palestini, supra, 99 Cal.App.4th at p. 93, internal citations
omitted.)
• “In order to succeed in their attempt to remove their case from the workers’
compensation law, appellants first had to show an ‘injury.’ They then had to
prove that the injury was aggravated by Firestone’s fraudulent concealment of
the existence of the injury and its connection with the employment.” (Santiago
v. Firestone Tire & Rubber Co. (1990) 224 Cal.App.3d 1318, 1330 [274
Cal.Rptr. 576], internal citation omitted.)
• “The Supreme Court in Johns-Manville recognized that the aggravation of an
injury that results when an employer fraudulently conceals the injury’s cause is
a harm distinct from the injury itself. For this reason, aggravation that results
when an employer fraudulently conceals an injury’s cause remains actionable
even though the injured party has recovered worker’s compensation benefits for
the injury itself.” (Aerojet General Corp. v. Superior Court (1986) 177
Cal.App.3d 950, 956 [223 Cal.Rptr. 249], internal citation omitted.)
102
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 44, 45
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 15:526.1, 15:570, 15:570.5–15:570.6, 15:590
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][c] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][d] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§§ 577.314[3], 577.525 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
103
• “The language ‘provided for the employee’s use’ indicates the product must be
given or furnished to the employee in order for the employee to accomplish
some task.” (Behrens v. Fayette Manufacturing Co. (1992) 4 Cal.App.4th 1567,
1574 [7 Cal.Rptr.2d 264].)
• “Our interpretation is in accord with that of commentators who have noted that
the exception of subdivision (b)(3) requires the employee to come into contact
with the defective product as a consumer.” (Behrens, supra, 4 Cal.App.4th at p.
1574, internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 63
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶ 15:571
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][d] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][e] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.314[4] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
105
not meet the requirements of section 4558 cannot be bootstrapped onto a civil
action for damages which is properly brought under section 4558.” (Award
Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1134 [279 Cal.Rptr.
459].)
• “In all its pertinent uses, then, the term ‘die’ refers to a tool that imparts shape
to material by pressing or impacting against or through the material, that is, by
punching, stamping or extruding; in none of its uses does the term refer to a
tool that imparts shape by cutting along the material in the manner of a blade.”
(Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 285 [92 Cal.Rptr.2d
465, 991 P.2d 1256].)
• “[U]nder subdivisions (a)(2) and (c), liability for ‘failure to install’ a point of
operation guard under section 4558 must be predicated upon evidence that the
‘manufacturer’ either provided or required such a device, which was not
installed by the employer.” (Flowmaster, Inc. v. Superior Court (1993) 16
Cal.App.4th 1019, 1027 [20 Cal.Rptr.2d 666].)
• “We find that the term guard, as used in section 4558, is meant to include the
myriad apparatus which are available to accomplish the purpose of keeping the
hands of workers outside the point of operation whenever the ram is capable of
descending. Because we find that the term guard is not a specific legal term of
art, we hold that the trial court properly provided the jury with a dictionary
definition of the term guard to explain its meaning under section 4558.”
(Bingham v. CTS Corp. (1991) 231 Cal.App.3d 56, 65 [282 Cal.Rptr. 161],
internal citation omitted; cf. Gonzalez v. Seal Methods, Inc. (2014) 223
Cal.App.4th 405, 410 [166 Cal.Rptr.3d 895] [point of operation guard does not
include unattached device, such as a safety block, that the worker moves into
and out of the point of operation].)
• “Physical removal, for the purpose of liability under section 4558, means to
render a safeguarding apparatus, whether a device or point of operation guard,
dysfunctional or unavailable for use by the operator for the particular task
assigned.” (Bingham, supra, 231 Cal.App.3d at p. 68.)
• “Nothing in the language, history or objectives underlying section 4558
convinces us that the Legislature intended that section 4558 would immunize
employers who design, manufacture and install their own power presses without
point of operation guards. A manufacturer is defined broadly in section 4558 as
a ‘designer, fabricator, or assembler of a power press.’ An ‘employer’ is not
excluded from the definition of a manufacturer, nor would doing so promote the
objectives of the statute.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp.
1029–1030, internal citation omitted.)
• “The element of knowledge requires ‘actual awareness’ by the employer—rather
than merely constructive knowledge—that a point of operation guard has either
been provided for or is required to prevent the probability of serious injury or
death.” (Flowmaster, Inc., supra, 16 Cal.App.4th at pp. 1031–1032, internal
citation and footnote omitted.)
108
• “Liability under section 4558 can only be imposed if the employer fails to use
or removes a safety device required by the manufacturer of the press.
Essentially, the culpable conduct is the employer’s ignoring of the
manufacturer’s safety directive . . . . ‘From the plain language of section 4558,
it is clear that an exception to the exclusivity of workers’ compensation only
arises for a power press injury where the employer has been expressly informed
by the manufacturer that a point of operation guard is required, where the
employer then affirmatively removes or fails to install such guard, and where
the employer does so under conditions known by the employer to create a
probability of serious injury or death.’ ” (Aguilera v. Henry Soss & Co. (1996)
42 Cal.App.4th 1724, 1730 [50 Cal.Rptr.2d 477], internal citation omitted.)
• “As defined in the statute, ‘specifically authorized’ requires an ‘affirmative
instruction’ by the employer, as distinguished from mere acquiescence in or
ratification of an act or omission.” (Mora v. Hollywood Bed & Spring (2008)
164 Cal.App.4th 1061, 1068 [79 Cal.Rptr.3d 640].)
• “Specific authorization demands evidence of an affirmative instruction or other
wilful acts on the part of the employer despite actual knowledge of the
probability of serious harm.” (Flowmaster, Inc., supra, 16 Cal.App.4th at p.
1032, internal citation and footnote omitted.)
• “[I]mputation solely because of an agency relationship cannot bring an
employer within the reach of section 4558. Only an employer who directly
authorized by an affirmative instruction the removal or failure to install a guard
may be sued at law under section 4558.” (Watters Associates v. Superior Court
(1990) 218 Cal.App.3d 1322, 1325 [267 Cal.Rptr. 696].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 49–51, 102
Chin et al., California Practice Guide: Employment Litigation, Ch. 13-I, Collateral
(Non-OSH) Actions Relating To Occupational Safety And Health, ¶ 13:953 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 15-F, California
Workers’ Compensation Act Preemption, ¶ 15:572 (The Rutter Group)
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.20 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries,
§ 20.12[1][e] (Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.11[1][f] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.314[5] (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, §§ 239.24, 239.41 (Matthew Bender)
109
unwittingly participating in the mock robbery as a victim was not part of the
employee’s work.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606,
628–629 [210 Cal.Rptr.3d 362].)
• “The jury could properly find the injury did not arise out of the employee’s
work because it was caused by such employer action and therefore the
conditions of compensation did not exist. To hold that the jury must first find
the injury to be within the conditions of compensation and then find it also to
be within the Fermino exception, instead of simply finding that the conditions
of compensation were not met in the first place in light of Fermino, would be
elevating form over substance.” (Lee, supra, 5 Cal.App.5th at p. 629.)
• “[T]he exclusive remedy provisions are not applicable under certain
circumstances, sometimes variously identified as ‘conduct where the employer
or insurer stepped out of their proper roles’ [citations], or ‘conduct of an
employer having a “questionable” relationship to the employment’ [citations],
but which may be essentially defined as not stemming from a risk reasonably
encompassed within the compensation bargain.” (Light v. Department of Parks
& Recreation (2017) 14 Cal.App.5th 75, 97 [221 Cal.Rptr.3d 668].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 56
Chin, et al., California Practice Guide: Employment Litigation, Ch. 15-F,
Preemption Defenses, ¶ 15:526 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 20, Workers’ Compensation, § 20.13
(Matthew Bender)
Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 11,
Actions Against the Employer Under State Law and Third-Party Tort Actions,
§ 11.05 (Matthew Bender)
52 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.315 (Matthew Bender)
20 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.39 (Matthew Bender)
California Workers’ Compensation Law and Practice, Ch. 2, Jurisdiction, § 2:122
(James Publishing)
2806–2809. Reserved for Future Use
111
[Name of defendant] claims that [he/she] is not responsible for any harm
that [name of plaintiff] may have suffered because [he/she] was [name of
defendant]’s coemployee and therefore can recover only under
California’s Workers’ Compensation Act. To succeed, [name of
defendant] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] were [name of
employer]’s employees;
2. That [name of employer] [had workers’ compensation insurance
[covering [name of plaintiff] at the time of injury]/was self-insured
for workers’ compensation claims [at the time of [name of
plaintiff]’s injury]]; and
3. That [name of defendant] was acting in the scope of [his/her]
employment at the time [name of plaintiff] claims [he/she] was
harmed.
rule only ‘[w]here the conditions of compensation set forth in Section 3600
concur . . . .’ Those conditions, as has been mentioned, include the requirement
of industrial causation.” (Lee, supra, 5 Cal.App.5th at p. 634, internal citation
omitted.)
• “[A] coemployee’s conduct is within the scope of his or her employment if it
could be imputed to the employer under the doctrine of respondeat superior. If
the coemployee was not ‘engaged in any active service for the employer,’ the
coemployee was not acting within the scope of employment.” (Hendy, supra, 54
Cal.3d at p. 740, internal citation omitted.)
• “[G]enerally speaking, a defendant in a civil action who claims to be one of
that class of persons protected from an action at law by the provisions of the
Workers’ Compensation Act bears the burden of pleading and proving, as an
affirmative defense to the action, the existence of the conditions of
compensation set forth in the statute which are necessary to its application.”
(Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96 [151 Cal.Rptr. 347, 587 P.2d
1160].)
• “In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26
Cal.4th 995, 1006 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal citations omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 67, 68
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:624, 12:192, 13:951, 15:546, 15:569, 15:632
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.316 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
113
cause of action in the employee but severely limited a preexisting right to freely
sue a fellow employee for damages.’ ” (Torres v. Parkhouse Tire Service, Inc.
(2001) 26 Cal.4th 995, 1002 [111 Cal.Rptr.2d 564, 30 P.3d 57], internal
citations and footnotes omitted.)
• “[W]e conclude an ‘unprovoked physical act of aggression’ is unprovoked
conduct intended to convey an actual, present, and apparent threat of bodily
injury. A ‘threat,’ of course, is commonly understood as ‘an expression of
intention to inflict evil, injury, or damage’ and as ‘[a] communicated intent to
inflict harm or loss on another . . . .’ Thus, ‘unprovoked physical act of
aggression’ logically contemplates intended injurious conduct. By adding the
term ‘willful,’ the Legislature has underscored the need for an intent to bring
about the consequences of that expression, i.e., an intent to inflict injury or
harm.” (Torres, supra, 26 Cal.4th at p. 1005, internal citations omitted.)
• “As with other mental states, plaintiffs may rely on circumstantial evidence to
prove the intent to injure.” (Torres, supra, 26 Cal.4th at p. 1009.)
• “[T]o invoke civil liability under section 3601, subdivision (a)(1), a physical act
causing a reasonable fear of harm must be pleaded and proved, but the resulting
harm need not also be physical.” (Iverson v. Atlas Pacific Engineering (1983)
143 Cal.App.3d 219, 225 [191 Cal.Rptr. 696].)
• “We agree that conduct constituting a common law assault may be actionable
under section 3601(a)(1), provided that the conduct was intended to injure
. . . .” (Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1829 [12
Cal.Rptr.2d 405].)
• “In general, if an employer condones what courts have described as ‘horseplay’
among its employees, an employee who engages in it is within the scope of
employment under section 3601, subdivision (a), and is thus immune from suit,
unless exceptions apply.” (Torres, supra, 26 Cal.4th at p. 1006, internal citations
omitted.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§§ 67, 68
Chin et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 5:624, 13:951, 13:962, 15:546, 15:569, 15:632
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.316 (Matthew Bender)
115
116
1 Herlick, California Workers’ Compensation Law (6th ed.), Ch. 12, Tort
Actions—Subrogation, § 12.22 (Matthew Bender)
1 California Employment Law, Ch. 20, Liability for Work-Related Injuries, § 20.43
(Matthew Bender)
1 Levy et al., California Torts, Ch. 10, Effect of Workers’ Compensation Law,
§ 10.13 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine (Matthew Bender)
2813–2899. Reserved for Future Use
118
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2801, Employer’s Willful Physical
Assault—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that defendant engaged in conduct other than that which is
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2801.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
120
122
6. Answer question 7.
7. Subtract the total amount in question 6 from the total amount in
question 5. This is the amount [name of plaintiff] is entitled to
recover. $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2802, Fraudulent Concealment of
Injury—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
questions 5 and 6, and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
123
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2803, Employer’s Defective
Product—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
125
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
126
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2011,
December 2016
128
129
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2811, Co-Employee’s Willful and
Unprovoked Physical Act of Aggression—Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant engaged in conduct other than that
described in question 1, then the question may be modified by choosing one of the
other options stated in element 1 of CACI No. 2811.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
131
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
132
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 2812, Injury Caused by Co-Employee’s
Intoxication—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
134
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2806–VF-2899. Reserved for Future Use
135
137
140
error. We agree that when the issue is properly raised and an instruction is
requested, the FELA requires jury instructions on the duty to provide a
reasonably safe place to work.” (Ragsdell v. Southern Pacific Transportation
Co. (9th Cir. 1982) 688 F.2d 1281, 1283, internal citations omitted.)
• “The test of negligence in supplying the employee a safe place to work is
‘whether reasonable men, examining the circumstances and the likelihood of
injury, would have taken those steps necessary to remove the danger.’ ”
(Mortensen v. Southern Pacific Co. (1966) 245 Cal.App.2d 241, 244 [53
Cal.Rptr. 851], internal citations omitted.)
• The duty to use reasonable care “is a duty which becomes ‘more imperative’ as
the risk increases. ‘Reasonable care becomes then a demand of higher
supremacy, and yet, in all cases it is a question of the reasonableness of the
care—reasonableness depending upon the danger attending the place or the
machinery.’ ” (Bailey v. Central Vermont Ry., Inc. (1943) 319 U.S. 350, 353 [63
S.Ct. 1062, 87 L.Ed. 1444], internal citation omitted.)
• “The employer is not the insurer of the safety of its employees and the test of
the employer’s liability to an injured employee is whether ordinary care was
used by the employer in regard to the risk.” (Baez v. Southern Pacific Co.
(1962) 210 Cal.App.2d 714, 717 [26 Cal.Rptr. 899], internal citation omitted.)
• The U.S. Supreme Court has held that an independent contractor is an “agent”
for purposes of establishing an employer’s liability under the FELA if the
contractor performs “operational activities” of the employer. (Sinkler v. Missouri
Pacific Railroad Co. (1958) 356 U.S. 326, 331–332 [78 S.Ct. 758, 2 L.Ed.2d
799].)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
142
143
145
v. Sorrell (2007) 549 U.S. 158, 171 [127 S.Ct. 799, 166 L.Ed.2d 638].)
• “Under this statute the test of a jury case is simply whether the proofs justify
with reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought.”
(Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500, 506 [77 S.Ct.
443, 1 L.Ed.2d 493].)
• “In sum, the understanding of Rogers we here affirm ‘has been accepted as
settled law for several decades.’ ‘Congress has had [more than 50] years in
which it could have corrected our decision in [Rogers] if it disagreed with it,
and has not chosen to do so.’ Countless judges have instructed countless juries
in language drawn from Rogers. To discard or restrict the Rogers instruction
now would ill serve the goals of ‘stability’ and ‘predictability’ that the doctrine
of statutory stare decisis aims to ensure.” (CSX Transp., Inc. v. McBride (2011)
564 U.S. 685, 699 [131 S.Ct. 2630, 180 L.Ed.2d 637], internal citations
omitted.)
• “The common law concept of proximate cause . . . has not been adopted as the
causation test in F.E.L.A. cases. Causation in an F.E.L.A. case exists even if
there is a plurality of causes, including the negligence of the defendant or of a
third person. The negligence of the employer need not be the sole cause or even
a substantial cause of the ensuing injury.” (Parker v. Atchison, Topeka and
Santa Fe Ry. Co. (1968) 263 Cal.App.2d 675, 678 [70 Cal.Rptr. 8].)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 123
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.42
(Matthew Bender)
147
148
the Boiler Inspection Act (BIA), the court may wish to add an introductory
instruction that would alert the jury to the difference between the two claims.
Do not give a comparative fault instruction if the case is brought under this theory.
Sources and Authority
• Federal Employers’ Liability Act. Title 45 United States Code section 51.
• Contributory Negligence Under the FELA. Title 45 United States Code section
53.
• Assumption of Risk Under the FELA. Title 45 United States Code section 54.
• FELA Regulations Deemed to Be Statutes. Title 45 United States Code section
54a.
• Railroad Safety Requirements. Title 49 United States Code section 20302(a).
• Installation of Railroad Signal System. Title 49 United States Code section
20502(b).
• Use of Locomotive or Tender. Title 49 United States Code section 20701.
• “We note that under the Federal Employers’ Liability Act of 1908 an injured
railroad employee may bring a cause of action without proof of negligence
based on failure of the SAA-mandated safety appliances to function. When such
strict liability does not apply, i.e., the injury does not result from defective
equipment covered by the SAA, the employee must establish common law
negligence. The Supreme Court has also recognized that the SAA imposes a
duty on railroads extending to nonemployee travelers at railway/highway
crossings, who must bring a common law tort action in state court (absent
diversity) and must prove negligence.” (Carrillo v. ACF Industries, Inc. (1999)
20 Cal.4th 1158, 1170, fn. 4 [86 Cal.Rptr.2d 832, 980 P.2d 386], internal
citations omitted.)
• “[An] FSAA violation is per se negligence in a FELA suit. In other words, the
injured employee has to show only that the railroad violated the FSAA, and the
railroad is strictly liable for any injury resulting from the violation.” (Phillips v.
CSX Transportation Co. (4th Cir. 1999) 190 F.3d 285, 288, original italics.)
• “ ‘The BIA and the SAA are regarded as amendments to the FELA. The BIA
supplements the FELA to provide additional public protection and facilitate
employee recovery. . . . [T]he BIA imposes on the carrier an absolute duty to
maintain the locomotive, and all its parts and appurtenances, in proper
condition, and safe to operate without unnecessary peril to life or limb.’ ”
(Fontaine v. National Railroad Passenger Corp. (1997) 54 Cal.App.4th 1519,
1525 [63 Cal.Rptr.2d 644], internal citation omitted.)
• “[N]either contributory negligence nor assumption of the risk is a defense to a
BIA violation which has contributed to the cause of an injury.” (Fontaine,
supra, 54 Cal.App.4th at p. 1525.)
• “Where an inefficient brake causes an injury the carrier in interstate commerce
150
under the Safety Appliance Act cannot escape liability, and proof of negligence
on the part of the railroad is unnecessary.” (Leet v. Union Pacific Railroad Co.
(1943) 60 Cal.App.2d 814, 817 [142 P.2d 37].)
• “Proof of a BIA violation is enough to establish negligence as a matter of law,
and neither contributory negligence nor assumption of risk can be raised as a
defense.” (Law v. General Motors Corp. (9th Cir. 1997) 114 F.3d 908, 912,
internal citations omitted.)
• “The purpose in enacting the BIA was to protect train service employees and
the traveling public from defective locomotive boilers and equipment. ‘[I]t has
been held consistently that the [BIA] supplements the [FELA] by imposing on
interstate railroads “an absolute and continuing duty” to provide safe
equipment.’ In addition to the civil penalty, a person harmed by violation of the
BIA is given recourse to sue under FELA, which applies only to railroad
employees injured while engaged in interstate commerce. FELA provides the
exclusive remedy for recovery of damages against a railroad by its employees.
FELA liability is expressly limited to common carriers.” (Viad Corp. v. Superior
Court (1997) 55 Cal.App.4th 330, 335 [64 Cal.Rptr.2d 136], internal citations
omitted, disapproved on other grounds in Scheiding v. General Motors Corp.
(2000) 22 Cal.4th 471, 484, fn. 6 [93 Cal.Rptr.2d 342, 993 P.2d 996].)
• “The test for coverage under the amendment is not whether the employee is
engaged in transportation, but rather whether what he does in any way furthers
or substantially affects transportation.” (Reed v. Pennsylvania Railroad Co.
(1956) 351 U.S. 502, 505 [76 S.Ct. 958, 100 L.Ed. 1366].)
• “Where more than one inference can be drawn from the evidence, the question
whether an employee was, at the time of receiving the injury sued for, engaged
in interstate commerce, is for the jury.” (Sullivan v. Matt (1955) 130 Cal.App.2d
134, 139 [278 P.2d 499], internal citations omitted.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.45
(Matthew Bender)
151
152
[Name of plaintiff] must prove that [he/she] did not know, and could not
reasonably have known, before [date three years before action was
commenced],
1. That [he/she] had been harmed; and
2. That the harm was potentially caused by [his/her] work with
[name of defendant].
You will be asked a question about this on a special [verdict
form/interrogatory].
153
be deemed pro hac vice employees of the railroad.” (Kelley, supra, 419 U.S. at
p. 330.)
• “The determination of whether a worker is a borrowed servant is accomplished
by ascertaining who has the power to control and direct the servants in the
performance of their work, distinguishing between authoritative direction and
control, and mere suggestion as to details or the necessary cooperation, where
the work furnished is part of a larger undertaking. There is thus a distinction
between ‘authoritative direction and control’ by a railroad, and the ‘minimum
cooperation necessary to carry out a coordinated undertaking’ which does not
amount to control or supervision. The control need not be exercised; it is
sufficient if the right to direct the details of the work is present. (Collins, supra,
207 Cal.App.4th at p. 879.)
• “The special employment relationship and its consequent imposition of liability
upon the special employer flows from the borrower’s power to supervise the
details of the employee’s work. Mere instruction by the borrower on the result
to be achieved will not suffice.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d
486, 492 [162 Cal.Rptr. 320, 606 P.2d 355] [not a FELA case].)
• “The question of whether a special employment relationship exists is generally
a question of fact reserved for the jury.” (Collins, supra, 207 Cal.App.4th at p.
878.)
• Contract terms are not conclusive evidence of the existence of the right to
control. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 176 [151 Cal.Rptr.
671, 588 P.2d 811] [not a FELA case].)
• Restatement Second of Agency, section 220 provides:
(1) A servant is a person employed to perform services in the affairs
of another and who with respect to the physical conduct in the
performance of the services is subject to the other’s control or right
to control.
(2) In determining whether one acting for another is a servant or an
independent contractor, the following matters of fact, among others,
are considered:
(a) the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
156
158
Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498].)
• “In 2006 the Restatement (Second) of Agency was superseded by the
Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather
than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a,
and defines an employee simply as a type of agent subject to a principal’s
control. Id., § 7.07(3)(a).” (Schmidt, supra, 605 F.3d at p. 690, fn. 3.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
§ 118
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.33
(Matthew Bender)
161
162
(Feichko v. Denver & Rio Grande Western Railroad Co. (10th Cir. 2000) 213
F.3d 586, 592, internal citations omitted.)
• Restatement Second of Agency, section 229, provides:
(1) To be within the scope of the employment, conduct must be of
the same general nature as that authorized, or incidental to the
conduct authorized.
(2) In determining whether or not the conduct, although not
authorized, is nevertheless so similar to or incidental to the conduct
authorized as to be within the scope of employment, the following
matters of fact are to be considered:
(a) whether or not the act is one commonly done by such
servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is
apportioned between different servants;
(e) whether or not the act is outside the enterprise of the
master or, if within the enterprise, has not been entrusted to
any servant;
(f) whether or not the master has reason to expect that such an
act will be done;
(g) the similarity in quality of the act done to the act
authorized;
(h) whether or not the instrumentality by which the harm is
done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
• “The Restatement at § 229 sets forth intelligent factors for a factfinder to
consider in determining whether this has happened. We emphasize that no one
factor is dispositive; establishing one or more factors is not equivalent to
establishing scope of employment.” (Wilson v. Chicago, Milwaukee, St. Paul &
Pacific Railroad Co. (7th Cir. 1988) 841 F.2d 1347, 1355.)
• “[A]s a general rule, courts have held that an employee injured while
commuting to and from work is not covered by FELA.” (Ponce, supra, 103
F.Supp.2d at p. 1057.) However, FELA may apply if the injury occurs on the
employer’s work site “while the employee is attempting to report to or leave the
job within a reasonable time of his or her shift, and is exposed to risks not
confronted by the public generally.” (Ibid.)
164
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.35
(Matthew Bender)
2927–2939. Reserved for Future Use
165
166
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you also must decide how much money will
reasonably compensate [name of plaintiff] for the harm. This
compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages.
However, [name of plaintiff] does not have to prove the exact amount of
damages that will provide reasonable compensation for the harm. You
must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
since held that the absence in the Act of specific provisions governing the
measure of damages in FELA actions does not affect their availability as before
the Act.” (Hall v. Minnesota Transfer Railway Co. (D.Minn. 1971) 322 F.Supp.
92, 94.)
• “The seaman may thus recover for all of his pecuniary damages including such
damages as the cost of employing someone else to perform those domestic
services that he would otherwise have been able to render but is now incapable
of doing.” (Cruz v. Hendy International Co. (5th Cir. 1981) 638 F.2d 719, 723
[Jones Act case], overruled on other grounds in Miles v. Apex Marine Corp.
(1990) 498 U.S. 19, 32–33 [111 S.Ct. 317, 112 L.Ed.2d 275].)
• “Although our decision in Jones & Laughlin makes clear that no single method
for determining present value is mandated by federal law and that the method
of calculating present value should take into account inflation and other sources
of wage increases as well as the rate of interest, it is equally clear that an utter
failure to instruct the jury that present value is the proper measure of a damages
award is error.” (St. Louis Southwestern Railway, supra, 470 U.S. at p. 412.)
• “Damages for the injury of loss of earning capacity may be recovered in a
FELA action. ‘Earning capacity means the potential for earning money in the
future . . . .’ The appropriate measure is the present value of the total amount
of future earnings.” (Bissett v. Burlington Northern Railroad Co. (8th Cir. 1992)
969 F.2d 727, 731, internal citations omitted.)
• “[W]e see no reason, and defendant has presented us with no reason, to create
in FELA cases an exception to the general rule that the defendant has the
burden of proving that the plaintiff could, with reasonable effort, have mitigated
his damages.” (Jones v. Consolidated Rail Corp. (6th Cir. 1986) 800 F.2d 590,
594.)
• “The federal and state courts have held with virtual unanimity over more than
seven decades that prejudgment interest is not available under the FELA.”
(Monessen Southwestern Railway Co. v. Morgan (1988) 486 U.S. 330, 338 [108
S.Ct. 1837, 100 L.Ed.2d 349].)
• “We therefore reaffirm the conclusion . . . that punitive damages are
unavailable under the FELA.” (Wildman v. Burlington Northern Railroad Co.
(9th Cir. 1987) 825 F.2d 1392, 1395, internal citation omitted.)
• “We have held specifically that the spouse of an injured railroad employee may
not sue for loss of consortium under FELA.” (Kelsaw v. Union Pacific Railroad
Co. (9th Cir. 1982) 686 F.2d 819, 820, internal citation omitted.)
• 45 U.S.C. section 55 provides: “Any contract, rule, regulation, or device
whatsoever, the purpose or intent of which shall be to enable any common
carrier to exempt itself from any liability created by this [chapter], shall to that
extent be void: Provided, That in any action brought against any such common
carrier under or by virtue of any of the provisions of this [chapter], such
common carrier may set off therein any sum it has contributed or paid to any
168
insurance, relief benefit, or indemnity that may have been paid to the injured
employee or the person entitled thereto on account of the injury or death for
which said action was brought.”
• “While at first glance the language of this provision seems broad enough to
completely abrogate the common law collateral source rule, courts have limited
the scope of the provision by focusing on the requirement that the covered
payments be made ‘on account of the injury.’ Thus, the cases draw a distinction
between payments emanating from a fringe benefit such as a retirement fund or
a general hospital and medical insurance plan, and payments which the
employer has undertaken voluntarily to indemnify itself against possible
liabilities under the FELA.” (Clark v. Burlington Northern, Inc. (8th Cir. 1984)
726 F.2d 448, 450, internal citation omitted.)
• “A benefit may be exempt from setoff under the collateral source rule even
though the employer is the sole source of the fund. The important consideration
is the character of the benefits received, rather than whether the source is
actually independent of the employer. Medical expenses paid for by insurance
are exempt from setoff regardless of whether the employer paid one hundred
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he
should not be allowed to set off compensation from a ‘collateral source’ against
the amount he owes on account of his tort.” (Russo v. Matson Navigation Co.
(9th Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and
that the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.43,
485.44 (Matthew Bender)
169
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant] for the death of [name of decedent], you also must
decide how much money will reasonably compensate [name of plaintiff]
for this loss. This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages.
However, [name of plaintiff] does not have to prove the exact amount of
these damages. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. The reasonable value of money, goods, and services that [name of
decedent] would have provided [name of plaintiff] during either
the life expectancy that [name of decedent] had before [his/her]
death or the life expectancy of [name of plaintiff], whichever is
shorter;
2. [The monetary value of [name of minor child]’s loss of any care,
attention, instruction, training, advice, and guidance from [name
of decedent];]
3. Any pain and suffering that [name of decedent] experienced as a
result of [his/her] injuries; and
4. The reasonable expense of medical care and supplies reasonably
needed by and actually provided to [name of decedent].
Do not include in your award any compensation for [name of plaintiff]’s
grief, sorrow, or mental anguish or the loss of [name of decedent]’s
society or companionship.
In deciding a person’s life expectancy, consider, among other factors,
that person’s health, habits, activities, lifestyle, and occupation. Life
expectancy tables are evidence of a person’s life expectancy but are not
conclusive.
Any award you make for the value of any money and services that you
decide [name of decedent] would have provided [name of plaintiff] in the
future should be reduced to present value. Any award you make for the
value of any money and services you decide [name of decedent] would
have provided [name of plaintiff] between the date of [his/her] death on
[date of death] and the present should not be reduced to present value.
[In computing damages, consider the losses suffered by all plaintiffs and
return a verdict of a single amount for all plaintiffs. I will divide the
amount [among/between] the plaintiffs.]
170
percent of the insurance premiums. Courts have also ruled private disability
retirement plans established by a collective bargaining agreement and covering
both job-related and non-job-related illness and injury are exempt from setoff.”
(Clark, supra, 726 F.2d at pp. 450–451, footnote and internal citations omitted.)
• “Generally, a tortfeasor need not pay twice for the damage caused, but he
should not be allowed to set off compensation from a ‘collateral source’ against
the amount he owes on account of his tort.” (Russo v. Matson Navigation Co.
(9th Cir. 1973) 486 F.2d 1018, 1020.)
• “It is well established in this circuit that the purpose and nature of the insurance
benefits are controlling. Here, the purpose of the insurance coverage, as
expressly described in the collective bargaining agreement, is to indemnify the
employer against FELA liability. It follows that setoff should be allowed and
that the benefits in this case should not be regarded as a collateral source.”
(Folkestad v. Burlington Northern, Inc. (9th Cir. 1987) 813 F.2d 1377, 1383.)
• “The mechanics of handling the setoff provided by the plan may be dealt with
either by the Court instructing the jury that the amount of benefits provided by
the GA-23000 contract must be set off against any damages awarded or by the
Court as a matter of law reducing damages awarded by the jury.” (Brice v.
National Railroad Passenger Corp. (D. Md. 1987) 664 F.Supp. 220, 224.)
Secondary Sources
2 Hanna, California Law of Employee Injuries and Workers’ Compensation, Ch. 21,
Jurisdiction, § 21.01[3] (Matthew Bender)
42 California Forms of Pleading and Practice, Ch. 485, Railroads, §§ 485.36,
485.43, 485.44 (Matthew Bender)
2943–2999. Reserved for Future Use
173
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2900, FELA—Essential Factual Elements, and
CACI No. 2904, Comparative Fault.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
176
177
Signed:
Presiding Juror
Dated:
179
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This form is based on CACI No. 2920, Essential Factual Elements—Federal Safety
Appliance Act or Boiler Inspection Act.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 9 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-2902–VF-2999. Reserved for Future Use
180
183
• “By the plain terms of § 1983, two—and only two—allegations are required in
order to state a cause of action under that statute. First, the plaintiff must allege
that some person has deprived him of a federal right. Second, he must allege
that the person who has deprived him of that right acted under color of state or
territorial law.” (Catsouras v. Department of California Highway Patrol (2010)
181 Cal.App.4th 856, 890 [104 Cal.Rptr.3d 352].)
• “Section 1983 can also be used to enforce federal statutes. For a statutory
provision to be privately enforceable, however, it must create an individual
right.” (Henry A. v. Willden (9th Cir. 2012) 678 F.3d 991, 1005, internal citation
omitted.)
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d
920].)
• “The jury was properly instructed on [plaintiff]’s burden of proof and the
particular elements of the section 1983 claim. (CACI No. 3000.)” (King v. State
of California (2015) 242 Cal.App.4th 265, 280 [195 Cal.Rptr.3d 286].)
• “ ‘State courts look to federal law to determine what conduct will support an
action under section 1983. The first inquiry in any section 1983 suit is to
identify the precise constitutional violation with which the defendant is
charged.’ ” (Weaver v. State of California (1998) 63 Cal.App.4th 188, 203 [73
Cal.Rptr.2d 571], internal citations omitted.)
• “ ‘Qualified immunity is an affirmative defense against section 1983 claims. Its
purpose is to shield public officials “from undue interference with their duties
and from potentially disabling threats of liability.” The defense provides
immunity from suit, not merely from liability. Its purpose is to spare defendants
the burden of going forward with trial.’ Because it is an immunity from suit,
not just a mere defense to liability, it is important to resolve immunity questions
at the earliest possible stage in litigation. Immunity should ordinarily be
resolved by the court, not a jury.” (Martinez v. County of Los Angeles (1996) 47
Cal.App.4th 334, 342 [54 Cal.Rptr.2d 772], internal citations omitted.)
• “[D]efendants cannot be held liable for a constitutional violation under 42
U.S.C. § 1983 unless they were integral participants in the unlawful conduct.
We have held that defendants can be liable for ‘integral participation’ even if
the actions of each defendant do not ‘rise to the level of a constitutional
violation.’ ” (Keates v. Koile (9th Cir. 2018) 883 F.3d 1228, 1241, internal
citation omitted.)
• “Constitutional torts employ the same measure of damages as common law torts
and are not augmented ‘based on the abstract “value” or “importance” of
constitutional rights . . . .’ Plaintiffs have the burden of proving compensatory
damages in section 1983 cases, and the amount of damages depends ‘largely
upon the credibility of the plaintiffs’ testimony concerning their injuries.’ ”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 321 [103 Cal.Rptr.2d
339], internal citations omitted.)
185
187
New September 2003; Revised December 2010; Renumbered from CACI No. 3007
and Revised December 2012
Directions for Use
Give this instruction and CACI No. 3002, “Offıcial Policy or Custom” Explained,
if the plaintiff seeks to hold a local governmental entity liable for a civil rights
violation based on the entity’s official policy or custom. First give CACI No. 3000,
Violation of Federal Civil Rights—In General—Essential Factual Elements, and the
instructions on the particular constitutional violation alleged.
In element 3, a constitutional violation is not always based on intentional conduct.
Insert the appropriate level of scienter. For example, Eighth Amendment cases
involving failure to provide a prisoner with proper medical care require “deliberate
indifference.” (See Hudson v. McMillian (1992) 503 U.S. 1, 5 [112 S.Ct. 995, 117
L.Ed.2d 156].) And Fourth Amendment claims require an “unreasonable” search or
seizure. (See Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento
(1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834.)
For other theories of liability against a local governmental entity, see CACI No.
3003, Local Government Liability—Failure to Train—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
188
judgment is appropriate.” (Trevino v. Gates (9th Cir. 1996) 99 F.3d 911, 920.)
• “A triable issue exists as to whether the root of the unconstitutional behavior
exhibited in [plaintiff]’s case lies in the unofficial operating procedure of
[defendant] County or in the errant acts of individual social workers, and this
question should go to a jury.” (Kirkpatrick v. County of Washoe (9th Cir. 2015)
792 F.3d 1184, 1201.)
• “At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate, supra, 86 Cal.App.4th at p. 328.)
• “To meet this [Monell] requirement, the plaintiff must show both causation-in-
fact and proximate causation.” (Gravelet-Blondin v. Shelton (9th Cir. 2013) 728
F.3d 1086, 1096.)
• “Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
• “Local governmental bodies such as cities and counties are considered ‘persons’
subject to suit under section 1983. States and their instrumentalities, on the
other hand, are not.” (Kirchmann v. Lake Elsinore Unified School Dist. (2000)
83 Cal.App.4th 1098, 1101 [100 Cal.Rptr.2d 289], internal citations omitted.)
• “A municipality can be sued under section 1983 for ‘constitutional deprivations
visited pursuant to governmental “custom.” ’ However, ‘Congress did not intend
municipalities to be held liable unless action pursuant to official municipal
policy of some nature caused a constitutional tort. In particular, . . . a
municipality cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.’ ” (Marshall v. County of San Diego (2015) 238 Cal.App.4th
1095, 1118 [190 Cal.Rptr.3d 97], original italics, internal citation omitted.)
• “A local governmental unit is liable only if the alleged deprivation of rights
‘implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers,’ or when the injury
is in ‘execution of a [local] government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.’ ” (County of Los Angeles v. Superior Court (1998) 68
Cal.App.4th 1166, 1171 [80 Cal.Rptr.2d 860], internal citations omitted.)
• “A municipality’s policy or custom resulting in constitutional injury may be
actionable even though the individual public servants are shielded by good faith
immunity.” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 568 [195
190
191
New September 2003; Revised June 2012; Renumbered from CACI No. 3008
December 2012
Directions for Use
These definitions are selected examples of official policy drawn from the cited
cases. The instruction may need to be adapted to the facts of a particular case. The
court may need to instruct the jury regarding the legal definition of “policymakers.”
In some cases, it may be necessary to include additional provisions addressing
factors that may indicate an official custom in the absence of a formal policy. The
Ninth Circuit has held that in some cases the plaintiff is entitled to have the jury
instructed that evidence of governmental inaction—specifically, failure to
investigate and discipline employees in the face of widespread constitutional
violations—can support an inference that an unconstitutional custom or practice has
been unofficially adopted. (Hunter v. County of Sacramento (9th Cir. 2011) 652
F.3d 1225, 1234, fn. 8.)
Sources and Authority
• “The [entity] may not be held liable for acts of [employees] unless ‘the action
that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers’ or if the constitutional deprivation was ‘visited pursuant to
governmental “custom” even though such a custom has not received formal
approval through the body’s official decisionmaking channels.’ ” (Redman v.
County of San Diego (9th Cir. 1991) 942 F.2d 1435, 1443–1444, internal
citation omitted.)
• “[A]n act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on
the theory that the relevant practice is so widespread as to have the force of
192
law.” (Bd. of the County Comm’rs v. Brown (1997) 520 U.S. 397, 404 [117
S.Ct. 1382, 137 L.Ed.2d 626].)
• “The custom or policy must be a ‘deliberate choice to follow a course of action
. . . made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject matter in
question.’ “ (Castro v. Cnty. of L.A. (9th Cir. 2016) 833 F.3d 1060, 1075.)
• “While a rule or regulation promulgated, adopted, or ratified by a local
governmental entity’s legislative body unquestionably satisfies Monell’s policy
requirement, a ‘policy’ within the meaning of § 1983 is not limited to official
legislative action. Indeed, a decision properly made by a local governmental
entity’s authorized decisionmaker—i.e., an official who ‘possesses final
authority to establish [local government] policy with respect to the [challenged]
action’—may constitute official policy. ‘Authority to make municipal policy
may be granted directly by legislative enactment or may be delegated by an
official who possesses such authority, and of course whether an official had final
policymaking authority is a question of state law.’ ” (Thompson v. City of Los
Angeles (9th Cir. 1989) 885 F.2d 1439, 1443, internal citations and footnote
omitted.)
• “[A] plaintiff can show a custom or practice of violating a written policy;
otherwise an entity, no matter how flagrant its actual routine practices, always
could avoid liability by pointing to a pristine set of policies.” (Castro, supra,
833 F.3d at p. 1075 fn. 10.)
• “As with other questions of state law relevant to the application of federal law,
the identification of those officials whose decisions represent the official policy
of the local governmental unit is itself a legal question to be resolved by the
trial judge before the case is submitted to the jury.” (Jett v. Dallas Independent
School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct. 2702, 105 L.Ed.2d 598].)
• “[I]t is settled that whether an official is a policymaker for a county is
dependent on an analysis of state law, not fact.” (Pitts v. County of Kern (1998)
17 Cal.4th 340, 352 [70 Cal.Rptr.2d 823, 949 P.2d 920], internal citations
omitted.)
• “Once those officials who have the power to make official policy on a particular
issue have been identified, it is for the jury to determine whether their decisions
have caused the deprivation of rights at issue by policies which affirmatively
command that it occur, or by acquiescence in a longstanding practice or custom
which constitutes the ‘standard operating procedure’ of the local governmental
entity.” (Jett, supra, 491 U.S. at p. 737, internal citations omitted.)
• “Gibson v. County of Washoe [(9th Cir. 2002) 290 F.3d 1175, 1186] discussed
two types of policies: those that result in the municipality itself violating
someone’s constitutional rights or instructing its employees to do so, and those
that result, through omission, in municipal responsibility ‘for a constitutional
violation committed by one of its employees, even though the municipality’s
policies were facially constitutional, the municipality did not direct the
193
employee to take the unconstitutional action, and the municipality did not have
the state of mind required to prove the underlying violation.’ We have referred
to these two types of policies as policies of action and inaction.” (Tsao v. Desert
Palace, Inc. (9th Cir. 2012) 698 F.3d 1128, 1143, internal citations omitted.)
• “A policy of inaction or omission may be based on failure to implement
procedural safeguards to prevent constitutional violations. To establish that there
is a policy based on a failure to preserve constitutional rights, a plaintiff must
show, in addition to a constitutional violation, ‘that this policy “amounts to
deliberate indifference” to the plaintiff’s constitutional right[,]’ and that the
policy caused the violation, ‘in the sense that the [municipality] could have
prevented the violation with an appropriate policy.’ ” (Tsao, supra, 698 F.3d at
p. 1143, internal citations omitted.)
• “To show deliberate indifference, [plaintiff] must demonstrate ‘that [defendant]
was on actual or constructive notice that its omission would likely result in a
constitutional violation.’ ” (Tsao, supra, 698 F.3d at p. 1145.)
• “[P]laintiff may prove . . . deliberate indifference, through evidence of a
‘failure to investigate and discipline employees in the face of widespread
constitutional violations.’ Thus, it is sufficient under our case law to prove a
‘custom’ of encouraging excessive force to provide evidence that personnel
have been permitted to use force with impunity.” (Rodriguez v. Cty. of L.A. (9th
Cir. 2018) 891 F.3d 776, 803, internal citations omitted.)
• “Discussing liability of a municipality under the federal Civil Rights Act based
on ‘custom,’ the California Court of Appeal for the Fifth Appellate District
recently noted, ‘If the plaintiff seeks to show he was injured by governmental
“custom,” he must show that the governmental entity’s “custom” was “made by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.” ’ ” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 569,
fn. 11 [195 Cal.Rptr. 268], internal citations omitted.)
• “The federal courts have recognized that local elected officials and appointed
department heads can make official policy or create official custom sufficient to
impose liability under section 1983 on their governmental employers.” (Bach,
supra, 147 Cal.App.3d at p. 570, internal citations omitted.)
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 890
et seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
1 Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California,
Ch. 8, Answers and Responsive Motions Under Rule 12, 8.40
194
New September 2003; Revised December 2010, December 2011; Renumbered from
CACI No. 3009 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the entity’s failure to adequately train its
officers or employees. First give CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements, and the instructions on the
particular constitutional violation alleged.
The inadequate training must amount to a deliberate indifference to constitutional
rights. (Clouthier v. County of Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1249,
overruled en banc on other grounds in Castro v. Cnty. of L.A. (9th Cir. 2016) 833
F.3d 1060, 1070.) Element 2 expresses this deliberate-indifference standard.
Deliberate indifference requires proof of a pattern of violations in all but a few
very rare situations in which the unconstitutional consequences of failing to train
are patently obvious. (See Connick v. Thompson (2011) 563 U.S. 51, 63 [131 S.Ct.
1350, 179 L.Ed.2d 417].) Delete the bracketed language in element 2 unless the
facts present the possibility of liability based on patently obvious violations.
For other theories of liability against a local governmental entity, see CACI No.
3001, Local Government Liability—Policy or Custom—Essential Factual Elements,
and CACI No. 3004, Local Government Liability—Act or Ratification by Offıcial
With Final Policymaking Authority—Essential Factual Elements.
195
198
New December 2010; Renumbered from CACI No. 3010 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the acts of an official with final policymaking
authority. First give CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements, and the instructions on the particular
constitutional violation alleged.
Liability may be based on either the official’s personal acts or policy decision that
led to the violation or the official’s subsequent ratification of the acts or decision of
another. (See Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1346–1347.) If
both theories are alleged in the alternative, include “either” in element 1. Include
199
trial judge before the case is submitted to the jury.” (Jett, supra, 491 U.S. at p.
737, original italics.)
• “Ratification is the voluntary election by a person to adopt in some manner as
his own an act which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if originally
authorized by him.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [104
Cal.Rptr. 57, 500 P.2d 1401].)
• “[R]atification requires, among other things, knowledge of the alleged
constitutional violation.” (Christie v. Iopa (9th Cir. 1999) 176 F.3d 1231, 1239,
internal citations omitted.)
• “[A] policymaker’s mere refusal to overrule a subordinate’s completed act does
not constitute approval.” (Christie, supra, 176 F.3d at p. 1239.)
• “At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate v. County of Orange (2000) 86 Cal.App.4th 312, 328 [103 Cal.Rptr.2d
339].)
• “Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 830
17A Moore’s Federal Practice (3d ed.), Ch.123, Access to Courts: Eleventh
Amendment and State Sovereign Immunity, § 123.23 (Matthew Bender)
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, ¶ 2.03[2][b]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.12 (Matthew Bender)
201
New April 2007; Renumbered from CACI No. 3013 December 2010; Revised
December 2011; Renumbered from CACI No. 3017 December 2012; Revised June
2013
Directions for Use
Read this instruction in cases in which a supervisor is alleged to be personally
liable for the violation of the plaintiff’s civil rights under Title 42 United States
Code section 1983.
For certain constitutional violations, deliberate indifference based on knowledge
and acquiescence is insufficient to establish the supervisor’s liability. The supervisor
must act with the purpose necessary to establish the underlying violation. (Ashcroft
v. Iqbal (2009) 556 U.S. 662, 676–677 [129 S.Ct. 1937, 173 L.Ed.2d 868] [for
claim of invidious discrimination in violation of the First and Fifth Amendments,
plaintiff must plead and prove that defendant acted with discriminatory purpose].)
In such a case, element 3 requires not only express approval, but also
discriminatory purpose. The United States Supreme Court has found constitutional
torts to require specific intent in three situations: (1) due process claims for injuries
caused by a high-speed chase (See Cnty. of Sacramento v. Lewis (1998) 523 U.S.
833, 836 [118 S.Ct. 1708, 140 L.Ed.2d 1043].); (2) Eighth Amendment claims for
injuries suffered during the response to a prison disturbance (See Whitley v. Albers
(1986) 475 U.S. 312, 320–321 [106 S.Ct. 1078, 89 L.Ed.2d 251].); and (3)
invidious discrimination under the equal protection clause and the First Amendment
free exercise clause. (See Ashcroft v. Iqbal, supra, 556 U.S. at pp. 676–677.)
The Ninth Circuit has held that deliberate indifference based on knowledge and
202
206
New September 2003; Revised June 2012; Renumbered from CACI No. 3001
December 2012; Revised June 2015, June 2016
Directions for Use
The “official duties” referred to in element 3 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
The three factors (a), (b), and (c) listed are often referred to as the “Graham
factors.” (See Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104
207
L.Ed.2d 443].) The Graham factors are not exclusive. (See Glenn v. Wash. County
(9th Cir. 2011) 661 F.3d 460, 467–468.) Additional factors may be added if
appropriate to the facts of the case.
Additional considerations and verdict form questions will be needed if there is a
question of fact as to whether the defendant law enforcement officer had time for
reflective decision-making before applying force. If the officers’ conduct required a
reaction to fast-paced circumstances presenting competing public safety obligations,
the plaintiff must prove intent to harm. (See Green v. County of Riverside (2015)
238 Cal.App.4th 1363, 1372 [190 Cal.Rptr.3d 693].)
No case has yet determined, and therefore it is unclear, whether the defense has
either the burden of proof or the burden of producing evidence on reaction to fast-
paced circumstances. (See Evid. Code, §§ 500 [party has burden of proof as to each
fact the existence or nonexistence of which is essential to the claim for relief or
defense asserted], 550 [burden of producing evidence as to particular fact is on
party against whom a finding on the fact would be required in absence of further
evidence].)
For an instruction for use in a negligence claim under California common law
based on the same event and facts, see CACI No. 440, Unreasonable Force by Law
Enforcement Offıcer in Arrest or Other Seizure—Essential Factual Elements. For an
instruction for use alleging excessive force as a battery, see CACI No. 1305,
Battery by Police Offıcer.
Sources and Authority
• “In addressing an excessive force claim brought under § 1983, analysis begins
by identifying the specific constitutional right allegedly infringed by the
challenged application of force. In most instances, that will be either the Fourth
Amendment’s prohibition against unreasonable seizures of the person, or the
Eighth Amendment’s ban on cruel and unusual punishments, which are the two
primary sources of constitutional protection against physically abusive
governmental conduct.” (Graham, supra, 490 U.S. at p. 395, internal citations
and footnote omitted.)
• “Where, as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment, which guarantees citizens
the right ‘to be secure in their persons . . . against unreasonable . . . seizures’
of the person.” (Graham, supra, 490 U.S. at p. 394.)
• “[A]ll claims that law enforcement officers have used excessive force-deadly or
not-in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard, rather than under a ‘substantive due process’
approach.” (Graham, supra, 490 U.S. at p. 395.)
• “ ‘The intrusiveness of a seizure by means of deadly force is unmatched.’ ‘The
use of deadly force implicates the highest level of Fourth Amendment interests
both because the suspect has a “fundamental interest in his own life” and
208
because such force “frustrates the interest of the individual, and of society, in
judicial determination of guilt and punishment.” ’ ” (Vos v. City of Newport
Beach (9th Cir. 2018) 892 F.3d 1024, 1031.)
• “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” (Graham, supra, 490 U.S. at p. 396.)
• “Because ‘[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,’ . . . its proper
application requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight.” (Graham,
supra, 490 U.S. at p. 396, internal citation omitted.)
• “The most important of these [factors from Graham, above] is whether the
suspect posed an immediate threat to the officers or others, as measured
objectively under the circumstances.” (Mendoza v. City of West Covina (2012)
206 Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “[The Graham] factors, however, are not exclusive. We ‘examine the totality of
the circumstances and consider “whatever specific factors may be appropriate in
a particular case, whether or not listed in Graham.” ’ Other relevant factors
include the availability of less intrusive alternatives to the force employed,
whether proper warnings were given and whether it should have been apparent
to officers that the person they used force against was emotionally disturbed.”
(Glenn, supra, 661 F.3d at p. 467, internal citations omitted.)
• “With respect to the possibility of less intrusive force, officers need not employ
the least intrusive means available[,] so long as they act within a range of
reasonable conduct.” (Estate of Lopez v. Gelhaus (9th Cir. 2017) 871 F.3d 998,
1006.)
• “Although officers are not required to use the least intrusive degree of force
available, ‘the availability of alternative methods of capturing or subduing a
suspect may be a factor to consider,’ ” (Vos, supra, 892 F.3d at p. 1033, internal
citation omitted.)
• “Courts ‘also consider, under the totality of the circumstances, the quantum of
force used to arrest the plaintiff, the availability of alternative methods of
capturing or detaining the suspect, and the plaintiff’s mental and emotional
state.’ ” (Brooks v. Clark Cnty. (9th Cir. 2016) 828 F.3d 910, 920.)
• “Because the reasonableness standard ‘nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences therefrom, we have
held on many occasions that summary judgment or judgment as a matter of law
in excessive force cases should be granted sparingly.’ ” (Torres v. City of
Madera (9th Cir. 2011) 648 F.3d 1119, 1125.)
• “Justice Stevens incorrectly declares [the ‘objective reasonableness’ standard
209
under Graham] to be ‘a question of fact best reserved for a jury,’ and complains
we are ‘usurp[ing] the jury’s factfinding function.’. At the summary judgment
stage, however, once we have determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent supportable by the
record, the reasonableness of [defendant]’s actions—or, in Justice Stevens’
parlance, ‘[w]hether [respondent’s] actions have risen to a level warranting
deadly force,’ is a pure question of law.” (Scott v. Harris (2007) 550 U.S. 372,
381, fn. 8 [127 S. Ct. 1769; 167 L. Ed. 2d 686], original italics, internal
citations omitted.)
• “Because there are no genuine issues of material fact and ‘the relevant set of
facts’ has been determined, the reasonableness of the use of force is ‘a pure
question of law.’ ” (Lowry v. City of San Diego (9th Cir. 2017) 858 F.3d 1248,
1256 (en banc).)
• “In assessing the objective reasonableness of a particular use of force, we
consider: (1) ‘the severity of the intrusion on the individual’s Fourth
Amendment rights by evaluating the type and amount of force inflicted,’ (2)
‘the government’s interest in the use of force,’ and (3) the balance between ‘the
gravity of the intrusion on the individual’ and ‘the government’s need for that
intrusion.’ ” (Lowry, supra, 858 F.3d at p. 1256.)
• “To be sure, the reasonableness inquiry in the context of excessive force
balances ‘intrusion[s] on the individual’s Fourth Amendment interests’ against
the government’s interests. But in weighing the evidence in favor of the
officers, rather than the [plaintiffs], the district court unfairly tipped the
reasonableness inquiry in the officers’ favor.” (Sandoval v. Las Vegas Metro.
Police Dep’t (9th Cir. 2014) 756 F.3d 1154, 1167, internal citation omitted.)
• “The district court found that [plaintiff] stated a claim for excessive use of
force, but that governmental interests in officer safety, investigating a possible
crime, and controlling an interaction with a potential domestic abuser
outweighed the intrusion upon [plaintiff]’s rights. In reaching this conclusion,
the court improperly ‘weigh[ed] conflicting evidence with respect to . . .
disputed material fact[s].’ ” (Bonivert v. City of Clarkston (9th Cir. 2018) 883
F.3d 865, 880.)
• “The Fourth Amendment’s ‘reasonableness’ standard is not the same as the
standard of ‘reasonable care’ under tort law, and negligent acts do not incur
constitutional liability.” (Hayes v. County of San Diego (2013) 57 Cal.4th 622,
639 [160 Cal.Rptr.3d 684, 305 P.3d 252].)
• “[S]tate negligence law, which considers the totality of the circumstances
surrounding any use of deadly force, is broader than federal Fourth Amendment
law, which tends to focus more narrowly on the moment when deadly force is
used.” (Hayes, supra, 57 Cal.4th at p. 639, internal citations omitted.)
• “We are cognizant of the Supreme Court’s command to evaluate an officer’s
actions ‘from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.’ We also recognize the reality that ‘police
210
fire until a suspect turns his weapon on them. If the person is armed—or
reasonably suspected of being armed—a furtive movement, harrowing gesture,
or serious verbal threat might create an immediate threat.” (George v. Morris
(9th Cir. 2013) 724 F.3d 1191, 1200, original italics, internal citations omitted.)
• “ ‘[A] simple statement by an officer that he fears for his safety or the safety of
others is not enough; there must be objective factors to justify such a concern.’
Here, whether objective factors supported [defendant]’s supposed subjective fear
is not a question that can be answered as a matter of law based upon the
limited evidence in the record, especially given that on summary judgment that
evidence must be construed in the light most favorable to [plaintiff], the non-
moving party. Rather, whether [defendant]’s claim that he feared a broccoli-
based assault is credible and reasonable presents a genuine question of material
fact that must be resolved not by a court ruling on a motion for summary
judgment but by a jury in its capacity as the trier of fact.” (Young v. County of
Los Angeles (9th Cir. 2011) 655 F.3d 1156, 1163–1164.)
• “An officer’s evil intentions will not make a Fourth Amendment violation out of
an objectively reasonable use of force; nor will an officer’s good intentions
make an objectively unreasonable use of force constitutional.” (Fetters v.
County of Los Angeles (2016) 243 Cal.App.4th 825, 838 [196 Cal.Rptr.3d 848].)
• “Although Graham does not specifically identify as a relevant factor whether
the suspect poses a threat to himself, we assume that the officers could have
used some reasonable level of force to try to prevent [decedent] from taking a
suicidal act. But we are aware of no published cases holding it reasonable to
use a significant amount of force to try to stop someone from attempting
suicide. Indeed, it would be odd to permit officers to use force capable of
causing serious injury or death in an effort to prevent the possibility that an
individual might attempt to harm only himself. We do not rule out that in some
circumstances some force might be warranted to prevent suicide, but in cases
like this one the ‘solution’ could be worse than the problem.” (Glenn, supra,
661 F.3d at p. 468.)
• “This Court has ‘refused to create two tracks of excessive force analysis, one
for the mentally ill and one for serious criminals.’ The Court has, however,
‘found that even when an emotionally disturbed individual is acting out and
inviting officers to use deadly force to subdue him, the governmental interest in
using such force is diminished by the fact that the officers are confronted . . .
with a mentally ill individual.’ A reasonable jury could conclude, based upon
the information available to [defendant officer] at the time, that there were
sufficient indications of mental illness to diminish the governmental interest in
using deadly force.” (Hughes v. Kisela (9th Cir. 2016) 841 F.3d 1081, 1086.)
• “By contrast, if the officer warned the offender that he would employ force, but
the suspect refused to comply, the government has an increased interest in the
use of force.” (Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, 1175,
internal citation omitted.)
• “[P]reshooting conduct is included in the totality of circumstances surrounding
212
an officer’s use of deadly force, and therefore the officer’s duty to act
reasonably when using deadly force extends to preshooting conduct. But in a
case like this one, where the preshooting conduct did not cause the plaintiff any
injury independent of the injury resulting from the shooting, the reasonableness
of the officers’ preshooting conduct should not be considered in isolation.
Rather, it should be considered in relation to the question whether the officers’
ultimate use of deadly force was reasonable.” (Hayes, supra, 57 Cal.4th at p.
632, internal citation omitted.)
• “A person is seized by the police and thus entitled to challenge the
government’s action under the Fourth Amendment when the officer by means of
physical force or show of authority terminates or restrains his freedom of
movement through means intentionally applied.” (Nelson v. City of Davis (9th
Cir. 2012) 685 F.3d 867, 875.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman
v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
• “We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance
of a writ of habeas corpus. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under
§ 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if the district court
determines that the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.”
(Heck v. Humphrey (1994) 512 U.S. 477, 486–487 [114 S.Ct. 2364, 129
L.Ed.2d 383], footnotes and internal citation omitted.)
• “Heck requires the reviewing court to answer three questions: (1) Was there an
underlying conviction or sentence relating to the section 1983 claim? (2) Would
a ‘judgment in favor of the plaintiff [in the section 1983 action] “necessarily
213
imply” . . . the invalidity of the prior conviction or sentence?’ (3) ‘If so, was
the prior conviction or sentence already invalidated or otherwise favorably
terminated?’ ” (Fetters, supra, 243 Cal.App.4th at p. 834.)
• “The Heck inquiry does not require a court to consider whether the section
1983 claim would establish beyond all doubt the invalidity of the criminal
outcome; rather, a court need only ‘consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence.’ ”
(Fetters, supra, 243 Cal.App.4th at p. 841, original italics.)
• “[A] dismissal under section 1203.4 does not invalidate a conviction for
purposes of removing the Heck bar preventing a plaintiff from bringing a civil
action.” (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1224 [217
Cal.Rptr.3d 423].)
• “[Plaintiff]’s section 1983 claim is barred to the extent it alleges that [the
arresting officer] lacked justification to arrest him or to respond with reasonable
force to his resistance. The use of deadly force in this situation, though,
requires a separate analysis. ‘For example, a defendant might resist a lawful
arrest, to which the arresting officers might respond with excessive force to
subdue him. The subsequent use of excessive force would not negate the
lawfulness of the initial arrest attempt, or negate the unlawfulness of the
criminal defendant’s attempt to resist it. Though occurring in one continuous
chain of events, two isolated factual contexts would exist, the first giving rise to
criminal liability on the part of the criminal defendant, and the second giving
rise to civil liability on the part of the arresting officer.’ ” (Yount v. City of
Sacramento (2008) 43 Cal.4th 885, 899 [76 Cal.Rptr.3d 787, 183 P.3d 471],
original italics.)
• “Plaintiffs contend that the use of force is unlawful because the arrest itself is
unlawful. But that is not so. We have expressly held that claims for false arrest
and excessive force are analytically distinct.” (Sharp v. Cty. of Orange (9th Cir.
2017) 871 F.3d 901, 916.)
• “[T]he district court effectively required the jury to presume that the arrest was
constitutionally lawful, and so not to consider facts concerning the basis for the
arrest. Doing so removed critical factual questions that were within the jury’s
province to decide. For instance, by taking from the jury the question whether
[officer]’s arrest of [plaintiff] for resisting or obstructing a police officer was
lawful, the district judge implied simultaneously that [plaintiff] was in fact
resisting or failing to obey the police officer’s lawful instructions. Presuming
such resistance could certainly have influenced the jury’s assessment of ‘the
need for force,’ as well as its consideration of the other Graham factors,
including ‘whether [the suspect] is actively resisting arrest or attempting to
evade arrest by flight. By erroneously granting judgment as a matter of law on
[plaintiff]’s unlawful arrest claim, the district court impermissibly truncated the
jury’s consideration of [plaintiff]’s excessive force claim.” (Velazquez v. City of
Long Beach (9th Cir. 2015) 793 F.3d 1010, 1027, original italics.)
214
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892 et seq.
Chin et al., California Practice Guide: Employment Litigation, Ch.7-G, Employment
Discrimination—In General—Unruh Civil Rights Act, ¶ 7:1526 et seq. (The Rutter
Group)
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶¶ 10.00–10.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
215
New April 2009; Revised December 2009; Renumbered from CACI No. 3014
December 2012, June 2016
Directions for Use
Give this instruction in a false arrest case brought under title 42 United States Code
section 1983. For an instruction for false arrest under California law, see CACI No.
1401, False Arrest Without Warrant by Peace Offıcer—Essential Factual Elements.
The ultimate determination of whether the arresting officer had probable cause
(element 1) is to be made by the court as a matter of law. (Hunter v. Bryant (1991)
502 U.S. 224, 227–228 [112 S.Ct. 534, 116 L.Ed.2d 589].) However, in exercising
this role, the court does not sit as the trier of fact. It is still the province of the jury
to determine the facts on conflicting evidence as to what the arresting officer knew
at the time. (See Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3d 1010,
1018–1023; see also King v. State of California (2015) 242 Cal.App.4th 265, 289
[195 Cal.Rptr.3d 286].) Include “without probable cause” in element 1 and the last
optional paragraph if the jury will be asked to find facts with regard to probable
cause.
The “official duties” referred to in element 2 must be duties created by a state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 2.
216
arrest, she can make a prima facie case simply by showing that the arrest was
conducted without a valid warrant. At that point, the burden shifts to the
defendant to provide some evidence that the arresting officers had probable
cause for a warrantless arrest. The plaintiff still has the ultimate burden of
proof, but the burden of production falls on the defendant.” (Dubner v. City &
County of San Francisco (9th Cir. 2001) 266 F.3d 959, 965.)
• “There is no bright-line rule to establish whether an investigatory stop has risen
to the level of an arrest. Instead, this difference is ascertained in light of the
‘ “totality of the circumstances.” ’ This is a highly fact-specific inquiry that
considers the intrusiveness of the methods used in light of whether these
methods were ‘reasonable given the specific circumstances.’ ” (Green v. City &
County of San Francisco (9th Cir. 2014) 751 F.3d 1039, 1047, original italics,
internal citations omitted.)
• “Because stopping an automobile and detaining its occupants, ‘even if only for
a brief period and for a limited purpose,’ constitutes a ‘seizure’ under the Fourth
Amendment, an official must have individualized ‘reasonable suspicion’ of
unlawful conduct to carry out such a stop.” (Tarabochia v. Adkins (9th Cir.
2014) 766 F.3d 1115, 1121, internal citation omitted.)
• “ ‘[Q]ualified immunity is a question of law, not a question of fact. [Citation.]
But Defendants are only entitled to qualified immunity as a matter of law if,
taking the facts in the light most favorable to [the plaintiff], they violated no
clearly established constitutional right. The court must deny the motion for
judgment as a matter of law if reasonable jurors could believe that Defendants
violated [the plaintiff’s] constitutional right, and the right at issue was clearly
established.’ ‘The availability of qualified immunity after a trial is a legal
question informed by the jury’s findings of fact, but ultimately committed to the
court’s judgment.’ “ ‘[D]eference to the jury’s view of the facts persists
throughout each prong of the qualified immunity inquiry.’ ” ‘[T]he jury’s view
of the facts must govern our analysis once litigation has ended with a jury’s
verdict.’ ‘Where, as here, the legal question of qualified immunity turns upon
which version of the facts one accepts, the jury, not the judge, must determine
liability.’ ” (King, supra, 242 Cal.App.4th at p. 289, internal citations omitted.)
• “[Plaintiff] did have a constitutional right under the Fourth Amendment to be
free from involuntary detention without probable cause. Therefore, the issue is
whether the undisputed facts demonstrated that a reasonable officer would have
believed there was probable cause to detain [plaintiff] under [Welfare and
Institutions Code] section 5150.” (Julian v. Mission Community Hospital (2017)
11 Cal.App.5th 360, 387 [218 Cal.Rptr.3d 38].)
• “[I]f what the policeman knew prior to the arrest is genuinely in dispute, and if
a reasonable officer’s perception of probable cause would differ depending on
the correct version, that factual dispute must be resolved by a fact finder.
[Citations.] [¶] . . . [W]e do not find the facts relative to probable cause to
arrest, and the alleged related conspiracy, so plain as to lead us to only a single
conclusion, i.e., a conclusion in defendants’ favor. The facts are complex,
218
intricate and in key areas contested. Even more important, the inferences to be
drawn from the web of facts are disputed and unclear—and are likely to depend
on credibility judgments.” (King, supra, 242 Cal.App.4th at p. 291, internal
citations omitted.)
Secondary Sources
Witkin, Summary of California Law (11th ed. 2017) Torts, § 181
Chin et al., California Practice Guide: Employment Litigation, Ch.7-C, 42 USC
§ 1983, ¶ 7:1365 (The Rutter Group)
5 Levy et al., California Torts, Ch. 60, Principles of Liability and Immunity of
Public Entities and Employees, § 60.06 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.36A
(Matthew Bender)
1 Civil Rights Actions, Ch. 2, Institutional and Individual Immunity, ¶ 2.03
(Matthew Bender)
219
New September 2003; Renumbered from CACI No. 3002 December 2012; Revised
November 2017
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
This instruction may be modified to assert a claim for an unreasonable detention
while a search warrant is being executed by referencing the detention in elements 2
and 5, in the sentence introducing the factors, and in factor (d). Additional factors
relevant to the reasonableness of the detention should be included under factor (e).
(See Davis v. United States (9th Cir. 2017) 854 F.3d 594, 599.)
220
222
New September 2003; Renumbered from CACI No. 3003 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
Sources and Authority
• “The Fourth Amendment to the United States Constitution, made applicable to
the states by the Fourteenth Amendment, provides: ‘The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.’ ”
(Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 171 [52
Cal.Rptr.2d 777], internal citation omitted.)
• “[T]here is no talismanic distinction, for Fourth Amendment purposes, between
a warrantless ‘entry’ and a warrantless ‘search.’ ‘The two intrusions share this
fundamental characteristic: the breach of the entrance to an individual’s
home.’ ” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 874.)
• “ ‘The Fourth Amendment prohibits only unreasonable searches . . . . [¶] The
test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the
need for the particular search against the invasion of personal rights that the
223
search entails. Courts must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for initiating it, and the place
in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v.
County of Sacramento (1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834],
internal citation omitted.)
• “ ‘[I]n justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.’ ‘And in making that
assessment it is imperative that the facts be judged against an objective
standard: would the facts available to the officer at the moment of the seizure or
the search “warrant a man of reasonable caution in the belief” that the action
taken was appropriate?’ An officer’s good faith is not enough.” (King v. State of
California (2015) 242 Cal.App.4th 265, 283 [195 Cal.Rptr.3d 286], internal
citations omitted.)
• “Thus, the fact that the officers’ reasonable suspicion of wrongdoing is not
particularized to each member of a group of individuals present at the same
location does not automatically mean that a search of the people in the group is
unlawful. Rather, the trier of fact must decide whether the search was
reasonable in light of the circumstances.” (Lyall v. City of Los Angeles (9th Cir.
2015) 807 F.3d 1178, 1194.)
• “ ‘It is settled doctrine that probable cause for belief that certain articles subject
to seizure are in a dwelling cannot of itself justify a search without a warrant.’
Thus, a warrantless entry into a residence is presumptively unreasonable and
therefore unlawful. Government officials ‘bear a heavy burden when attempting
to demonstrate an urgent need that might justify warrantless searches or
arrests.’ ” (Conway, supra, 45 Cal.App.4th at p. 172, internal citations omitted.)
• “ ‘[I]t is a “basic principle of Fourth Amendment law” ’ that warrantless
searches of the home or the curtilage surrounding the home ‘are presumptively
unreasonable.’ ” (Bonivert, supra, 883 F.3d at p. 873.)
• “The Fourth Amendment shields not only actual owners, but also anyone with
sufficient possessory rights over the property searched. . . . To be shielded by
the Fourth Amendment, a person needs ‘some joint control and supervision of
the place searched,’ not merely permission to be there.” (Lyall, supra, 807 F.3d
at pp. 1186–1187.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.’ ” By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],’ ” does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman
v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
224
• “[P]rivate parties ordinarily are not subject to suit under section 1983, unless,
sifting the circumstances of the particular case, the state has so significantly
involved itself in the private conduct that the private parties may fairly be
termed state actors. Among the factors considered are whether the state
subsidized or heavily regulated the conduct, or compelled or encouraged the
particular conduct, whether the private actor was performing a function which
normally is performed exclusively by the state, and whether there was a
symbiotic relationship rendering the conduct joint state action.” (Robbins v.
Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d
534], internal citations omitted.)
• “Private parties act under color of state law if they willfully participate in joint
action with state officials to deprive others of constitutional rights. Private
parties involved in such a conspiracy may be liable under section 1983.”
(United Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989) 865
F.2d 1539, 1540, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
225
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required. To succeed, [name of defendant] must
prove all of the following:
1. That the search was conducted as part of a lawful arrest of
[name of plaintiff];
2. That [name of defendant] searched only [name of plaintiff] and the
area within which [he/she] might have gained possession of a
weapon or might have destroyed or hidden evidence; and
3. That the search was reasonable under the circumstances.
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor].
New September 2003; Renumbered from CACI No. 3004 December 2012
Directions for Use
For instructions regarding whether an arrest is lawful, see instructions in the False
Imprisonment series (CACI Nos. 1400–1409).
This instruction is not intended for use in cases involving automobile searches:
“[W]e hold that when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile.” (New York v. Belton (1981)
453 U.S. 454, 460 [101 S.Ct. 2860, 69 L.Ed.2d 768], footnotes omitted.)
Sources and Authority
• “Searches incident to lawful arrest constitute a well-established exception to the
warrant requirement of the Fourth Amendment.” (Hallstrom v. Garden City (9th
Cir. 1993) 991 F.2d 1473, 1477, internal citations omitted.)
• “Under applicable federal law, a lawful custodial arrest creates a situation which
justifies the full contemporaneous search without a warrant of the person
arrested and of the immediately surrounding area. Such searches are considered
valid because of the need to remove weapons and to prevent the concealment or
destruction of evidence.” (People v. Gutierrez (1984) 163 Cal.App.3d 332,
334–335 [209 Cal.Rptr. 376], internal citations omitted.)
226
227
[Name of defendant] claims that the search was reasonable and that a
search warrant was not required because [name of plaintiff/third person]
consented to the search. To succeed, [name of defendant] must prove
both of the following:
1. That [[name of plaintiff]/[name of third person], who controlled or
reasonably appeared to have control of the area,] knowingly and
voluntarily consented to the search; and
2. That the search was reasonable under all of the circumstances.
[[Name of third person]’s consent is insufficient if [name of plaintiff] was
physically present and expressly refused to consent to the search.]
In deciding whether the search was reasonable, you should consider,
among other factors, the following:
(a) The extent of the particular intrusion;
(b) The place in which the search was conducted; [and]
(c) The manner in which the search was conducted; [and]
(d) [insert other applicable factor(s)].
New September 2003; Revised April 2009; Renumbered from CACI No. 3005
December 2012
Directions for Use
Give the optional paragraph after element 2 if the defendant relied on the consent
of someone other than the plaintiff to initiate the search. (See Georgia v. Randolph
(2006) 547 U.S. 103, 106 [126 S.Ct. 1515, 164 L.Ed.2d 208].)
Sources and Authority
• “The Fourth Amendment generally prohibits the warrantless entry of a person’s
home, whether to make an arrest or to search for specific objects. The
prohibition does not apply, however, to situations in which voluntary consent
has been obtained, either from the individual whose property is searched or
from a third party who possesses common authority over the premises.” (Illinois
v. Rodriguez (1990) 497 U.S. 177, 181 [110 S.Ct. 2793, 111 L.Ed.2d 148],
internal citations omitted.)
• “ ‘[C]ommon authority’ rests ‘on mutual use of the property by persons
generally having joint access or control for most purposes . . . .’ The burden of
establishing that common authority rests upon the State.” (Illinois v. Rodriguez,
supra, 497 U.S. at p. 181, internal citation omitted.)
• “The Fourth Amendment recognizes a valid warrantless entry and search of
228
premises when police obtain the voluntary consent of an occupant who shares,
or is reasonably believed to share, authority over the area in common with a
co-occupant who later objects to the use of evidence so obtained. The question
here is whether such an evidentiary seizure is likewise lawful with the
permission of one occupant when the other, who later seeks to suppress the
evidence, is present at the scene and expressly refuses to consent. We hold that,
in the circumstances here at issue, a physically present co-occupant’s stated
refusal to permit entry prevails, rendering the warrantless search unreasonable
and invalid as to him.” (Georgia, supra, 547 U.S. at p. 106, internal citations
omitted.)
• “Where consent is relied upon to justify the lawfulness of a search, the
government ‘has the burden of proving that the consent was, in fact, freely and
voluntarily given.’ ‘The issue of whether or not consent to search was freely
and voluntarily given is one of fact to be determined on the basis of the totality
of the circumstances.’ ” (U.S. v. Henry (9th Cir. 1980) 615 F.2d 1223, 1230,
internal citations omitted.)
• “Whether consent was voluntarily given ‘is to be determined from the totality
of all the circumstances.’ We consider the following factors to assess whether
the consent was voluntary: (1) whether the person was in custody; (2) whether
the officers had their guns drawn; (3) whether a Miranda warning had been
given; (4) whether the person was told that he had the right not to consent; and
(5) whether the person was told that a search warrant could be obtained.
Although no one factor is determinative in the equation, ‘many of this court’s
decisions upholding consent as voluntary are supported by at least several of the
factors.’ ” (U.S. v. Reid (9th Cir. 2000) 226 F.3d 1020, 1026–1027, internal
citations omitted.)
• “According to [defendant], ‘express refusal means verbal refusal.’ We disagree,
as this interpretation finds no support in either common sense or the case law.”
(Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 875.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
229
New September 2003; Renumbered from CACI No. 3006 December 2012
Sources and Authority
• “Absent consent, exigent circumstances must exist for a warrantless entry into a
home, despite probable cause to believe that a crime has been committed or that
incriminating evidence may be found inside. Such circumstances are ‘few in
number and carefully delineated.’ ‘Exigent circumstances’ means ‘an emergency
situation requiring swift action to prevent imminent danger to life or serious
damage to property, or to forestall the imminent escape of a suspect or
destruction of evidence.’ ” (Conway v. Pasadena Humane Society (1996) 45
Cal.App.4th 163, 172 [52 Cal.Rptr.2d 777], internal citation omitted.)
• “Before agents of the government may invade the sanctity of the home, the
burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless
home entries.” (Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091,
80 L.Ed.2d 732].)
• “ ‘There are two general exceptions to the warrant requirement for home
searches: exigency and emergency.’ These exceptions are ‘narrow’ and their
boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly
230
interfere with the sanctity of the home. In general, the difference between the
two exceptions is this: The ‘emergency’ exception stems from the police
officers’ ‘community caretaking function’ and allows them ‘to respond to
emergency situations’ that threaten life or limb; this exception does ‘not [derive
from] police officers’ function as criminal investigators.’ By contrast, the
‘exigency’ exception does derive from the police officers’ investigatory function;
it allows them to enter a home without a warrant if they have both probable
cause to believe that a crime has been or is being committed and a reasonable
belief that their entry is ‘necessary to prevent . . . the destruction of relevant
evidence, the escape of the suspect, or some other consequence improperly
frustrating legitimate law enforcement efforts.’ (Hopkins v. Bonvicino (9th Cir.
2009) 573 F.3d 752, 763, original italics, internal citations omitted.)
• “[D]etermining whether an official had ‘reasonable cause to believe exigent
circumstances existed in a given situation . . . [is a] “question[] of fact to be
determined by a jury.” [Citation.]’ ” (Arce v. Childrens Hospital Los Angeles
(2012) 211 Cal.App.4th 1455, 1475 [150 Cal.Rptr.3d 735].)
• “There is no litmus test for determining whether exigent circumstances exist,
and each case must be decided on the facts known to the officers at the time of
the search or seizure. However, two primary considerations in making this
determination are the gravity of the underlying offense and whether the delay in
seeking a warrant would pose a threat to police or public safety.” (Conway,
supra, 45 Cal.App.4th at p. 172.)
• “ ‘[W]hile the commission of a misdemeanor offense,’ such as the petty theft
that [defendants] were investigating, ‘is not to be taken lightly, it militates
against a finding of exigent circumstances where the offense . . . is not
inherently dangerous.’ ” (Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d
1178, 1189.)
• “Finally, even where exigent circumstances exist, ‘[t]he search must be “strictly
circumscribed by the exigencies which justify its initiation.” ’ ‘An exigent
circumstance may justify a search without a warrant. However, after the
emergency has passed, the [homeowner] regains his right to privacy, and . . . a
second entry [is unlawful].’ ” (Conway, supra, 45 Cal.App.4th at p. 173,
internal citation omitted.)
• “ ‘Exigent circumstances are those in which a substantial risk of harm to the
persons involved or to the law enforcement process would arise if the police
were to delay a search [] until a warrant could be obtained.’ Mere speculation is
not sufficient to show exigent circumstances. Rather, ‘the government bears the
burden of showing the existence of exigent circumstances by particularized
evidence.’ This is a heavy burden and can be satisfied ‘only by demonstrating
specific and articulable facts to justify the finding of exigent circumstances.’
Furthermore, ‘the presence of exigent circumstances necessarily implies that
there is insufficient time to obtain a warrant; therefore, the government must
show that a warrant could not have been obtained in time.’ ” (U.S. v. Reid (9th
Cir. 2000) 226 F.3d 1020, 1027–1028, internal citations omitted.)
231
• “When the domestic violence victim is still in the home, circumstances may
justify an entry pursuant to the exigency doctrine.” (Bonivert v. City of
Clarkston (9th Cir. 2018) 883 F.3d 865, 878.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
232
234
New September 2003; Revised December 2010, June 2011; Renumbered from CACI
No. 3011 December 2012; Revised December 2014, June 2015, May 2017
Directions for Use
Give this instruction in a case involving conduct that allegedly created a substantial
risk of serious harm to an inmate. (See Farmer v. Brennan (1994) 511 U.S. 825
[114 S.Ct. 1970, 128 L.Ed.2d 811].) For an instruction on deprivation of medical
care, see CACI No. 3041, Violation of Prisoner’s Federal Civil Rights—Eighth
Amendment—Medical Care. For an instruction involving the deprivation of
necessities, see CACI No. 3043, Violation of Prisoner’s Federal Civil Rights—Eight
Amendment—Deprivation of Necessities.
In element 1, describe the act or omission that created the risk. In elements 2 and
235
3, choose “conduct” if the risk was created by affirmative action. Choose “failure
to act” if the risk was created by an omission.
In prison-conditions cases, the inmate must show that the defendant was
deliberately indifferent to his or her health or safety. (Farmer, supra, 511 U.S. at p.
834.) “Deliberate indifference” involves a two part inquiry. First, the inmate must
show that the prison officials were aware of a “substantial risk of serious harm” to
the inmate’s health or safety, but failed to act to address the danger. (See Castro v.
Cnty. of L.A. (9th Cir. 2016) 833 F.3d 1060, 1073.) Second, the inmate must show
that the prison officials had no “reasonable” justification for the conduct, in spite of
that risk. (Thomas v. Ponder (9th Cir. 2010) 611 F.3d 1144, 1150.) Elements 3, 4,
and 5 express the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section
1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475,
125 L.Ed.2d 22].)
• “Our cases have held that a prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation alleged must be,
objectively, ‘sufficiently serious.’ For a claim . . . based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm. The second requirement follows from the
principle that ‘only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment.’ To violate the Cruel and Unusual Punishments Clause, a
prison official must have a ‘sufficiently culpable state of mind.’ In prison-
conditions cases that state of mind is one of ‘deliberate indifference’ to inmate
health or safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations
omitted.)
• “[D]irect causation by affirmative action is not necessary: ‘a prison official may
be held liable under the Eighth Amendment if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.’ ” (Castro, supra, 833 F.3d at p. 1067, original
italics.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.”
236
New September 2003; Revised December 2010; Renumbered from CACI No. 3012
December 2012; Revised June 2014, December 2014, June 2015
Directions for Use
Give this instruction in a case involving the deprivation of medical care to a
prisoner. For an instruction on the creation of a substantial risk of serious harm, see
CACI No. 3040, Violation of Prisoner’s Federal Civil Rights—Eighth
238
upon the failure to provide medical treatment, first the plaintiff must show a
serious medical need by demonstrating that failure to treat a prisoner’s
condition could result in further significant injury or the unnecessary and
wanton infliction of pain. Second, a plaintiff must show the defendant’s
response to the need was deliberately indifferent.’ The ‘deliberate indifference’
prong requires ‘(a) a purposeful act or failure to respond to a prisoner’s pain or
possible medical need, and (b) harm caused by the indifference.’ ‘Indifference
may appear when prison officials deny, delay or intentionally interfere with
medical treatment, or it may be shown in the way in which prison [officials]
provide medical care.’ ‘[T]he indifference to [a prisoner’s] medical needs must
be substantial. Mere “indifference,” “negligence,” or “medical malpractice” will
not support this [claim].’ Even gross negligence is insufficient to establish
deliberate indifference to serious medical needs.” (Lemire v. Cal. Dep’t of Corr.
& Rehab. (9th Cir. 2013) 726 F.3d 1062, 1081–1082, internal citations omitted.)
• “Indications that a plaintiff has a serious medical need include ‘[t]he existence
of an injury that a reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition that significantly
affects an individual’s daily activities; or the existence of chronic and
substantial pain.’ ” (Colwell v. Bannister (9th Cir. 2014) 763 F.3d 1060, 1066.)
• “We hold . . . that a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” (Farmer, supra, 511 U.S. at p. 837.)
• “The subjective standard of deliberate indifference requires ‘more than ordinary
lack of due care for the prisoner’s interests or safety.’ The state of mind for
deliberate indifference is subjective recklessness. But the standard is ‘less
stringent in cases involving a prisoner’s medical needs . . . because “the State’s
responsibility to provide inmates with medical care ordinarily does not conflict
with competing administrative concerns.” ’ ” (Snow v. McDaniel (9th Cir. 2012)
681 F.3d 978, 985, internal citations omitted.)
• “[D]eliberate indifference ‘may appear when prison officials deny, delay or
intentionally interfere with medical treatment, or it may be shown by the way in
which prison physicians provide medical care.’. . . . ‘[A] prisoner need not
show his harm was substantial.’ “ (Wilhelm v. Rotman (9th Cir. 2012) 680 F.3d
1113, 1122, internal citation omitted.)
• “[A]llegations that a prison official has ignored the instructions of a prisoner’s
treating physician are sufficient to state a claim for deliberate indifference.”
(Wakefield v. Thompson (9th Cir. 1999) 177 F.3d 1160, 1165.)
• “[A] complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a constitutional
240
violation merely because the victim is a prisoner.” (Estelle, supra, 429 U.S. at
p. 106.)
• “ ‘A difference of opinion between a physician and the prisoner—or between
medical professionals—concerning what medical care is appropriate does not
amount to deliberate indifference.’ Rather, ‘[t]o show deliberate indifference, the
plaintiff “must show that the course of treatment the doctors chose was
medically unacceptable under the circumstances” and that the defendants “chose
this course in conscious disregard of an excessive risk to plaintiff’s health.” ’ ”
(Colwell, supra, 763 F.3d at p. 1068.)
• “It has been recognized . . . that inadequate medical treatment may, in some
instances, constitute a violation of 42 United States Code section 1983. In Sturts
v. City of Philadelphia, for example, the plaintiff alleged that defendants acted
‘carelessly, recklessly and negligently’ when they failed to remove sutures from
his eye, neck and face. The court concluded that although plaintiff was alleging
inadequate medical treatment, he had stated a cause of action under section
1983: ‘. . . where a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts are generally
reluctant to second guess medical judgments. In some cases, however, the
medical attention rendered may be so woefully inadequate as to amount to no
treatment at all, thereby rising to the level of a § 1983 claim. . . .’” (Ochoa v.
Superior Court (1985) 39 Cal.3d 159, 176–177 [216 Cal.Rptr. 661, 703 P.2d 1],
internal citations omitted.)
• “Because society does not expect that prisoners will have unqualified access to
health care, deliberate indifference to medical needs amounts to an Eighth
Amendment violation only if those needs are ‘serious.’ ” (Hudson v. McMillian
(1992) 503 U.S. 1, 9 [112 S.Ct. 995, 117 L.Ed.2d 156], internal citation
omitted.)
• “[T]here is a two-pronged test for evaluating a claim for deliberate indifference
to a serious medical need: First, the plaintiff must show a serious medical need
by demonstrating that failure to treat a prisoner’s condition could result in
further significant injury or the unnecessary and wanton infliction of pain.
Second, the plaintiff must show the defendant’s response to the need was
deliberately indifferent. This second prong . . . is satisfied by showing (a) a
purposeful act or failure to respond to a prisoner’s pain or possible medical
need and (b) harm caused by the indifference.” (Akhtar v. Mesa (9th Cir. 2012)
698 F.3d 1202, 1213.)
• “A prison medical official who fails to provide needed treatment because he
lacks the necessary resources can hardly be said to have intended to punish the
inmate. The challenged instruction properly advised the jury to consider the
resources [defendant] had available in determining whether he was deliberately
indifferent.” (Peralta, supra, 744 F.3d at p. 1084.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
to operate a correctional facility than either judges or juries. For this reason, in
241
(Gordon v. Cty. of Orange (9th Cir. 2018) 888 F.3d 1118, 1124–1125, internal
citations omitted.)
• “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition
could result in further significant injury or the ‘unnecessary and wanton
infliction of pain.’ The ‘routine discomfort’ that results from incarceration and
which is ‘part of the penalty that criminal offenders pay for their offenses
against society’ does not constitute a ‘serious’ medical need.” (Doty v. County of
Lassen (9th Cir. 1994) 37 F.3d 540, 546, internal citations and footnote
omitted.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is “‘pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman
v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
Secondary Sources
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 244
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 826
Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial,
Ch. 2E-10, Special Jurisdictional Limitations—Eleventh Amendment As Limitation
On Actions Against States, ¶ 2:4923 (The Rutter Group)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State Law-
Prisons, ¶ 11.09 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.15 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.183
(Matthew Bender)
243
New September 2003; Revised June 2010; Renumbered from CACI No. 3010
December 2010; Renumbered from CACI No. 3013 December 2012
Directions for Use
The “official duties” referred to in element 3 must be duties created pursuant to any
state, county, or municipal law, ordinance, or regulation. This aspect of color of law
most likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 3.
244
There is law suggesting that the jury should give deference to prison officials in the
adoption and execution of policies and practices that in their judgment are needed
to preserve discipline and to maintain internal security in a prison. This principle is
covered in the final sentence by the term “good faith.”
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section
1983.
• “Section 1983 claims may be brought in either state or federal court.” (Pitts v.
County of Kern (1998) 17 Cal.4th 340, 348 [70 Cal.Rptr.2d 823, 949 P.2d
920].)
• “The Constitution ‘does not mandate comfortable prisons,’ but neither does it
permit inhumane ones, and it is now settled that ‘the treatment a prisoner
receives in prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.’ In its prohibition of ‘cruel and unusual
punishments,’ the Eighth Amendment places restraints on prison officials, who
may not, for example, use excessive physical force against prisoners. The
Amendment also imposes duties on these officials, who must provide humane
conditions of confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’ ” (Farmer v. Brennan (1994)
511 U.S. 825, 832 [114 S.Ct. 1970, 128 L.Ed.2d 811], internal citations
omitted.)
• “[A]pplication of the deliberate indifference standard is inappropriate when
authorities use force to put down a prison disturbance. Instead, ‘the question
whether the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on “whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the very purpose of
causing harm.” ’ ” (Hudson v. McMillian (1992) 503 U.S. 1, 6 [112 S.Ct. 995,
117 L.Ed.2d 156], internal citations omitted.)
• “[W]e hold that whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments Clause, the
core judicial inquiry is that set out in Whitley: whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” (Hudson, supra, 503 U.S. at pp. 6–7, internal citations omitted.)
• “Whether the prison disturbance is a riot or a lesser disruption, corrections
officers must balance the need ‘to maintain or restore discipline’ through force
against the risk of injury to inmates. Both situations may require prison officials
to act quickly and decisively. Likewise, both implicate the principle that ‘prison
administrators . . . should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security.’ ”
(Hudson, supra, 503 U.S. at p. 6, internal citations omitted.)
• “We recognize that prison officials have a ‘better grasp’ of the policies required
245
to operate a correctional facility than either judges or juries. For this reason, in
excessive force . . . cases, we instruct juries to defer to prison officials’
judgments in adopting and executing policies needed to preserve discipline and
maintain security.” (Mendiola-Martinez v. Arpaio (9th Cir. 2016) 836 F.3d 1239,
1254, internal citations omitted.)
• “[T]his Court rejected the notion that ‘significant injury’ is a threshold
requirement for stating an excessive force claim. . . . ‘When prison officials
maliciously and sadistically use force to cause harm,’ . . . ‘contemporary
standards of decency always are violated . . . whether or not significant injury
is evident. Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less than some
arbitrary quantity of injury.’ ” (Wilkins v. Gaddy (2010) 559 U.S. 34, 37 [130
S.Ct. 1175, 175 L.Ed.2d 995].)
• “This is not to say that the ‘absence of serious injury’ is irrelevant to the Eighth
Amendment inquiry. ‘[T]he extent of injury suffered by an inmate is one factor
that may suggest “whether the use of force could plausibly have been thought
necessary” in a particular situation.’ The extent of injury may also provide some
indication of the amount of force applied. . . . [N]ot ‘every malevolent touch
by a prison guard gives rise to a federal cause of action.’ ‘The Eighth
Amendment’s prohibition of “cruel and unusual” punishments necessarily
excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the conscience of
mankind.’ An inmate who complains of a ‘push or shove’ that causes no
discernible injury almost certainly fails to state a valid excessive force
claim. . . . [¶ ] Injury and force, however, are only imperfectly correlated, and
it is the latter that ultimately counts.” (Wilkins, supra, 559 U.S. at pp. 37–38,
original italics, internal citations omitted.)
• “ ‘[S]uch factors as the need for the application of force, the relationship
between the need and the amount of force that was used, [and] the extent of
injury inflicted,’ are relevant to that ultimate determination. From such
considerations inferences may be drawn as to whether the use of force could
plausibly have been thought necessary, or instead evinced such wantonness with
respect to the unjustified infliction of harm as is tantamount to a knowing
willingness that it occur. But equally relevant are such factors as the extent of
the threat to the safety of staff and inmates, as reasonably perceived by the
responsible officials on the basis of the facts known to them, and any efforts
made to temper the severity of a forceful response.” (Whitley v. Albers (1986)
475 U.S. 312, 321 [106 S.Ct. 1078, 89 L.Ed.2d 251], internal citations omitted.)
• “ ‘[T]he appropriate standard for a pretrial detainee’s excessive force claim
[under the Fourteenth Amendment] is solely an objective one.’ In contrast, a
convicted prisoner’s excessive force claim under the Eighth Amendment
requires a subjective inquiry into ‘whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause
246
harm.’ ” (Rodriguez v. Cty. of L.A. (9th Cir. 2018) 891 F.3d 776, 788, internal
citation omitted.)
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law.’ A police officer’s actions are under pretense of law
only if they are ‘in some way “related to the performance of his official
duties.” ’ By contrast, an officer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law, unless he ‘purports or pretends’ to do so. Officers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman
v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations
omitted.)
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 901
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law—Law Enforcement and Prosecution, ¶ 10.01 (Matthew Bender)
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶ 11.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 114, Civil Rights: Prisoners’
Rights, § 114.70 (Matthew Bender)
247
justification for the conduct, in spite of that risk. (Thomas, supra, 611 F.3d at p.
1150.) Elements 4 and 5 express the deliberate-indifference components.
The “official duties” referred to in element 6 must be duties created by any state,
county, or municipal law, ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury, so it has been omitted to shorten the
wording of element 6.
Sources and Authority
• Civil Action for Deprivation of Rights. Title 42 United States Code section
1983.
• “It is undisputed that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth
Amendment.” (Helling v. McKinney (1993) 509 U.S. 25, 31 [113 S.Ct. 2475,
125 L.Ed.2d 22].)
• “Prison officials have a duty to ensure that prisoners are provided adequate
shelter, food, clothing, sanitation, medical care, and personal safety.” (Johnson
v. Lewis (9th Cir. 2000) 217 F.3d 726, 731, internal citations omitted.)
• “[E]xtreme deprivations are required to make out a conditions-of-confinement
claim. Because routine discomfort is ‘part of the penalty that criminal offenders
pay for their offenses against society,’ ‘only those deprivations denying “the
minimal civilized measure of life’s necessities” are sufficiently grave to form
the basis of an Eighth Amendment violation.’ ” (Hudson v. McMillian (1992)
503 U.S. 1, 9 [112 S.Ct. 995, 117 L.Ed.2d 156], internal citations omitted.)
• “[A] prison official violates the Eighth Amendment only when two requirements
are met. First, the deprivation alleged must be, objectively, ‘sufficiently serious,’
a prison official’s act or omission must result in the denial of ‘the minimal
civilized measure of life’s necessities,’ . . . .” (Farmer, supra, 511 U.S. at p.
834, internal citations omitted.)
• “ ‘[O]nly the unnecessary and wanton infliction of pain implicates the Eighth
Amendment.’ To violate the Cruel and Unusual Punishments Clause, a prison
official must have a ‘sufficiently culpable state of mind.’ In prison-conditions
cases that state of mind is one of ‘deliberate indifference’ to inmate health or
safety . . . .” (Farmer, supra, 511 U.S. at p. 834, internal citations omitted.)
• “[A]n inmate seeking to prove an Eighth Amendment violation must
‘objectively show that he was deprived of something “sufficiently serious,” ’ and
‘make a subjective showing that the deprivation occurred with deliberate
indifference to the inmate’s health or safety.’ The second step, showing
‘deliberate indifference,’ involves a two part inquiry. First, the inmate must
show that the prison officials were aware of a ‘substantial risk of serious harm’
to an inmate’s health or safety. This part of our inquiry may be satisfied if the
inmate shows that the risk posed by the deprivation is obvious. Second, the
inmate must show that the prison officials had no ‘reasonable’ justification for
the deprivation, in spite of that risk.” (Thomas, supra, 611 F.3d at p. 1150,
footnote and internal citations omitted.)
249
• “Next, the inmate must ‘make a subjective showing that the deprivation
occurred with deliberate indifference to the inmate’s health or safety.’ To satisfy
this subjective component of deliberate indifference, the inmate must show that
prison officials ‘kn[e]w[] of and disregard[ed]’ the substantial risk of harm, but
the officials need not have intended any harm to befall the inmate; ‘it is enough
that the official acted or failed to act despite his knowledge of a substantial risk
of serious harm.’ ” (Lemire v. Cal. Dep’t of Corr. & Rehab. (9th Cir. 2013) 726
F.3d 1062, 1074, internal citations omitted.)
• “Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.”
(Farmer, supra, 511 U.S. at p. 842, internal citation omitted.)
• “When instructing juries in deliberate indifference cases with such issues of
proof, courts should be careful to ensure that the requirement of subjective
culpability is not lost. It is not enough merely to find that a reasonable person
would have known, or that the defendant should have known, and juries should
be instructed accordingly.” (Farmer, supra, 511 U.S. at p. 843 fn. 8.)
• “The precise role of legitimate penological interests is not entirely clear in the
context of an Eighth Amendment challenge to conditions of confinement. The
Supreme Court has written that the test of Turner v. Safley, 482 U.S. 78, 107
S.Ct. 2254, 96 L.Ed.2d 64 (1987), which requires only a reasonable relationship
to a legitimate penological interest to justify prison regulations, does not apply
to Eighth Amendment claims. The existence of a legitimate penological
justification has, however, been used in considering whether adverse treatment
is sufficiently gratuitous to constitute punishment for Eighth Amendment
purposes.” (Grenning v. Miller-Stout (9th Cir. 2014) 739 F.3d 1235, 1240.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2010) Constitutional Law, § 816
3 Civil Rights Actions, Ch. 11, Deprivation of Rights Under Color of State
Law—Prisons, ¶ 11.02 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
18 California Points and Authorities, Ch. 196, Public Entities, § 196.183 (Matthew
Bender)
3044–3049. Reserved for Future Use
250
New June 2010; Revised December 2010, Renumbered from CACI No. 3016 and
Revised December 2012, June 2013
Directions for Use
Give this instruction along with CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements, if the claimed civil rights
violation is retaliation for exercising constitutionally protected rights. The
retaliation should be alleged generally in element 1 of CACI No. 3000.
The constitutionally protected activity refers back to the right alleged to have been
violated in element 3 of CACI No. 3000. Whether plaintiff was engaged in a
constitutionally protected activity will usually have been resolved by the court as a
matter of law. If so, include the optional statement in the opening paragraph and
omit element 1. If there is a question of fact that the jury must resolve with regard
to the constitutionally protected activity, include element 1 and give the last part of
the instruction.
There is perhaps some uncertainty with regard to the requirement in element 3 that
the retaliatory act may be motivated, in part, by the protected activity. While the
element is so stated in Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th
251
1049, 1062–1063 [99 Cal.Rptr.3d 661], the court also was of the view that the
defendant may avoid liability by proving that, notwithstanding a retaliatory motive,
it also had legitimate reasons for its actions and would have taken the same steps
for those reasons alone. (Id. at pp. 1086–1087, finding persuasive Greenwich
Citizens Comm. v. Counties of Warren & Washington Indus. Dev. Agency (2d Cir.
1996) 77 F.3d 26, 30.) Therefore, the fact that retaliation may have motivated the
defendant only in part may not always be sufficient for liability. In the Ninth
Circuit, there is authority for both a “but-for” and a “substantial or motivating
factor” standard. (Compare Karl v. City of Mountlake Terrace (9th Cir. 2012) 678
F.3d 1062, 1072 [defendant may show that: (1) the adverse employment action was
based on protected and unprotected activities; and (2) defendant would have taken
the adverse action if the proper reason alone had existed] with Blair v. Bethel Sch.
Dist. (9th Cir. 2010) 608 F.3d 540, 543 [third element expressed as “there was a
substantial causal relationship between the constitutionally protected activity and
the adverse action”].)
Sources and Authority
• “Where, as here, the plaintiff claims retaliation for exercising a constitutional
right, the majority of federal courts require the plaintiff to prove that (1) he or
she was engaged in constitutionally protected activity, (2) the defendant’s
retaliatory action caused the plaintiff to suffer an injury that would likely deter
a person of ordinary firmness from engaging in that protected activity, and (3)
the retaliatory action was motivated, at least in part, by the plaintiff’s protected
activity.” (Tichinin, supra, 177 Cal.App.4th at pp. 1062–1063.)
• “[A]ctions that are otherwise proper and lawful may nevertheless be actionable
if they are taken in retaliation against a person for exercising his or her
constitutional rights.” (Tichinin, supra, 177 Cal.App.4th at p. 1084.)
• “[A]n individual has a right ‘to be free from police action motivated by
retaliatory animus but for which there was probable cause.’ ” (Ford v. City of
Yakima (9th Cir. 2013) 706 F.3d 1188, 1193.)
• “Probable cause is not irrelevant to an individual’s claim that he was booked
and jailed in retaliation for his speech. Probable cause for the initial arrest can
be evidence of a police officer’s lack of retaliatory animus for subsequently
booking and jailing an individual. However, that determination should be left to
the trier of fact once a plaintiff has produced evidence that the officer’s conduct
was motivated by retaliatory animus.” (Ford, supra, 706 F.3d at p. 1194 fn.2,
internal citation omitted.)
• “[T]he evidence of [plaintiff]’s alleged injuries, if believed, is sufficient to
support a finding that the retaliatory action against him would deter a person of
ordinary firmness from exercising his or her First Amendment rights. [¶]
[Defendant] argues that plaintiff did not suffer any injury—i.e., [defendant]’s
action did not chill [plaintiff]’s exercise of his rights—because he continued to
litigate against [defendant]. However, that [plaintiff] persevered despite
[defendant]’s action is not determinative. To reiterate, in the context of a claim
252
of retaliation, the question is not whether the plaintiff was actually deterred but
whether the defendant’s actions would have deterred a person of ordinary
firmness.” (Tichinin, supra, 177 Cal.App.4th at p. 1082.)
• “Intent to inhibit speech, which ‘is an element of the [retaliation] claim,’ can be
demonstrated either through direct or circumstantial evidence.” (Mendocino
Envtl. Ctr. v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300–1301,
internal citation omitted.)
• “To show that retaliation was a substantial or motivating factor behind an
adverse employment action, a plaintiff can (1) introduce evidence that the
speech and adverse action were proximate in time, such that a jury could infer
that the action took place in retaliation for the speech; (2) introduce evidence
that the employer expressed opposition to the speech; or (3) introduce evidence
that the proffered explanations for the adverse action were false and pretextual.”
(Anthoine v. N. Cent. Counties Consortium (9th Cir. 2010) 605 F.3d 740, 750.)
• “To satisfy the [causation] requirement, the evidence must be sufficient to
establish that the officers’ desire to chill [plaintiff]’s speech was a but-for cause
of their conduct. In other words, would [plaintiff] have been booked and jailed,
rather than cited and arrested, but for the officers’ desire to punish [him] for his
speech?” (Ford, supra, 706 F.3d at p. 1194.)
• “[Defendant] may avoid liability if he shows that a ‘final decision maker’s
independent investigation and termination decision, responding to a biased
subordinate’s initial report of misconduct, . . . negate[s] any causal link’
between his retaliatory motive and the adverse employment action. This is
because a final decision maker’s wholly independent investigation and decision
establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ ” (Karl, supra, 678 F.3d at pp. 1072–1073, internal
citation omitted.)
• “While the scope, severity and consequences of [their] actions are belittled by
defendants, we have cautioned that ‘a government act of retaliation need not be
severe . . . [nor] be of a certain kind’ to qualify as an adverse action.” (Marez
v. Bassett (9th Cir. 2010) 595 F.3d 1068, 1075.)
• “We employ a ‘sequential five-step series of questions’ to determine whether an
employer impermissibly retaliated against an employee for protected speech: (1)
whether the plaintiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee; (3) whether the
plaintiff’s protected speech was a substantial or motivating factor in the adverse
employment action; (4) whether the state had an adequate justification for
treating the employee differently from other members of the general public; and
(5) whether the state would have taken the adverse employment action even
absent the protected speech.” (Anthoine, supra, 605 F.3d at p. 748.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 820,
885A
253
254
If the removal of the child was without a warrant and without exigent
circumstances, but later found to be justified by the court, damages are limited to
those caused by the procedural defect, not the removal. (See Watson v. City of San
Jose (9th Cir. 2015) 800 F.3d 1135, 1139.)
Sources and Authority
• “ ‘ “Parents and children have a well-elaborated constitutional right to live
together without governmental interference.’ [Citation.] ‘The Fourteenth
Amendment guarantees that parents will not be separated from their children
without due process of law except in emergencies.” This ‘right to family
association’ requires ‘[g]overnment officials . . . to obtain prior judicial
authorization before intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes “reasonable cause
to believe that the child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that specific injury.”
[Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1473, internal citations
omitted.)
• “ ‘The Fourth Amendment also protects children from removal from their
homes [without prior judicial authorization] absent such a showing. [Citation.]
Officials, including social workers, who remove a child from its home without a
warrant must have reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be required to obtain a
warrant.’ Because ‘the same legal standard applies in evaluating Fourth and
Fourteenth Amendment claims for the removal of children,” we may “analyze
[the claims] together.’ ” (Arce, supra, 211 Cal.App.4th at pp. 1473–1474.)
• “While the constitutional source of the parent’s and the child’s rights differ, the
tests under the Fourteenth Amendment and the Fourth Amendment for when a
child may be seized without a warrant are the same. The Constitution requires
an official separating a child from its parents to obtain a court order unless the
official has reasonable cause to believe the child is in ‘imminent danger of
serious bodily injury.’ Seizure of a child is reasonable also where the official
obtains parental consent.” (Jones v. County of L.A. (9th Cir. 2015) 802 F.3d
990, 1000, internal citations omitted.)
• “This requirement ‘balance[s], on the one hand, the need to protect children
from abuse and neglect and, on the other, the preservation of the essential
privacy and liberty interests that families are guaranteed under both the Fourth
and Fourteenth Amendments of our Constitution.’ ” (Demaree v. Pederson (9th
Cir. 2018) 880 F.3d 1066, 1074.)
• “[W]hether an official had ‘reasonable cause to believe exigent circumstances
existed in a given situation . . . [is a] “question[] of fact to be determined by a
jury.” [Citation.]’ ” (Arce, supra, 211 Cal.App.4th at p. 1475.)
• “Under the Fourth Amendment, government officials are ordinarily required to
obtain prior judicial authorization before removing a child from the custody of
her parent. However, officials may seize a child without a warrant ‘if the
256
258
262
she suffered an adverse employment action in retaliation for his or her private
speech on an issue of public concern. Speech made by public employees in their
official capacity is not insulated from employer discipline by the First Amendment
but speech made in one’s private capacity as a citizen is. (Garcetti v. Ceballos
(2006) 547 U.S. 410, 421 [126 S. Ct. 1951, 164 L. Ed. 2d 689].)
Element 1, whether the employee was speaking as a private citizen or as a public
employee, and element 6, whether the public employer had an adequate justification
for the adverse action, are ultimately determined as a matter of law, but may
involve disputed facts. (Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1071.) If
there are no disputed facts, these elements should not be given. They may be
modified to express the particular factual issues that the jury must resolve.
Give the bracketed optional sentence in the last paragraph if the defendant has
placed the plaintiff’s formal written job description in evidence. (See Garcetti,
supra, 547 U.S. at p. 424.)
Note that there are two causation elements. The protected speech must have caused
the employer’s adverse action (element 3), and the adverse action must have caused
the employee harm (element 5). This second causation element will rarely be
disputed in a termination case. For optional language if the employer claims that
there was no adverse action, see CACI No. 2505, Retaliation—Essential Factual
Elements (under California’s Fair Employment and Housing Act). See also CACI
No. 2509, “Adverse Employment Action” Explained (under FEHA).
Sources and Authority
• “ ‘[C]itizens do not surrender their First Amendment rights by accepting public
employment.’ Moreover, ‘[t]here is considerable value . . . in encouraging,
rather than inhibiting, speech by public employees,’ because ‘government
employees are often in the best position to know what ails the agencies for
which they work.’ At the same time, ‘[g]overnment employers, like private
employers, need a significant degree of control over their employees’ words and
actions.’ Accordingly, government employees may be subject to some restraints
on their speech ‘that would be unconstitutional if applied to the general
public.’ ” (Moonin v. Tice (9th Cir. 2017) 868 F.3d 853, 860–861, internal
citations omitted.)
• “First Amendment retaliation claims are governed by the framework in Eng.
See 552 F.3d at 1070–72. [Plaintiff] must show that (1) he spoke on a matter of
public concern, (2) he spoke as a private citizen rather than a public employee,
and (3) the relevant speech was a substantial or motivating factor in the adverse
employment action. Upon that showing, the State must demonstrate that (4) it
had an adequate justification for treating [plaintiff] differently from other
members of the general public, or (5) it would have taken the adverse
employment action even absent the protected speech. ‘[A]ll the factors are
necessary, in the sense that failure to meet any one of them is fatal to the
plaintiff’s case.’ ” (Kennedy v. Bremerton Sch. Dist. (9th Cir. 2017) 869 F.3d
813, 822, internal citations omitted.)
264
• “Pickering [Pickering v. Bd. of Educ. (1968) 391 U.S. 563 [88 S.Ct. 1731, 20
L.Ed.2d 811]] and the cases decided in its wake identify two inquiries to guide
interpretation of the constitutional protections accorded to public employee
speech. The first requires determining whether the employee spoke as a citizen
on a matter of public concern. If the answer is no, the employee has no First
Amendment cause of action based on his or her employer’s reaction to the
speech. If the answer is yes, then the possibility of a First Amendment claim
arises. The question becomes whether the relevant government entity had an
adequate justification for treating the employee differently from any other
member of the general public. This consideration reflects the importance of the
relationship between the speaker’s expressions and employment. A government
entity has broader discretion to restrict speech when it acts in its role as
employer, but the restrictions it imposes must be directed at speech that has
some potential to affect the entity’s operations.” (Garcetti, supra, 547 U.S. at p.
418, internal citations omitted.)
• “In the forty years since Pickering, First Amendment retaliation law has
evolved dramatically, if sometimes inconsistently. Unraveling Pickering’s
tangled history reveals a sequential five-step series of questions: (1) whether the
plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as
a private citizen or public employee; (3) whether the plaintiff’s protected speech
was a substantial or motivating factor in the adverse employment action; (4)
whether the state had an adequate justification for treating the employee
differently from other members of the general public; and (5) whether the state
would have taken the adverse employment action even absent the protected
speech. Analysis of these questions, further complicated by restraints on our
interlocutory appellate jurisdiction, involves a complex array of factual and
legal inquiries requiring detailed explanation.” (Eng, supra, 552 F.3d at p.
1070.)
• “The public concern inquiry is purely a question of law . . . .” (Eng, supra, 552
F.3d at p. 1070.)
• “While ‘the question of the scope and content of a plaintiff’s job responsibilities
is a question of fact,’ the ‘ultimate constitutional significance of the facts as
found’ is a question of law.” (Eng, supra, 552 F.3d at p. 1071.)
• “[T]he parties in this case do not dispute that [plaintiff] wrote his disposition
memo pursuant to his employment duties. We thus have no occasion to
articulate a comprehensive framework for defining the scope of an employee’s
duties in cases where there is room for serious debate. We reject, however, the
suggestion that employers can restrict employees’ rights by creating excessively
broad job descriptions. The proper inquiry is a practical one. Formal job
descriptions often bear little resemblance to the duties an employee actually is
expected to perform, and the listing of a given task in an employee’s written
job description is neither necessary nor sufficient to demonstrate that conducting
the task is within the scope of the employee’s professional duties for First
Amendment purposes.” (Garcetti, supra, 547 U.S. at p. 424.)
265
267
New September 2003; Revised December 2011, June 2012; Renumbered from CACI
No. 3020 December 2012; Revised June 2013, June 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s
conduct. “Substantial motivating reason” has been held to be the appropriate
standard under the Fair Employment and Housing Act to address the possibility of
268
can demonstrate that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges, advantages, or
accommodations.’ ” (Baughman v. Walt Disney World Co. (2013) 217
Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825], internal citations omitted.)
• “ ‘Although the Unruh Act proscribes “any form of arbitrary discrimination,”
certain types of discrimination have been denominated “reasonable” and,
therefore, not arbitrary.’ Thus, for example, ‘legitimate business interests may
justify limitations on consumer access to public accommodations.’ ” (Hankins v.
El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 520 [74 Cal.Rptr.2d
684], internal citations omitted.)
• “Discrimination may be reasonable, and not arbitrary, in light of the nature of
the enterprise or its facilities, legitimate business interests (maintaining order,
complying with legal requirements, and protecting business reputation or
investment), and public policy supporting the disparate treatment.” (Javorsky,
supra, 242 Cal.App.4th at p. 1395.)
• “[T]he Act’s objective of prohibiting ‘unreasonable, arbitrary or invidious
discrimination’ is fulfilled by examining whether a price differential reflects an
‘arbitrary, class-based generalization.’ . . . [A] policy treating age groups
differently in this respect may be upheld, at least if the pricing policy (1)
ostensibly provides a social benefit to the recipient group; (2) the recipient
group is disadvantaged economically when compared to other groups paying
full price; and (3) there is no invidious discrimination.” (Javorsky, supra, 242
Cal.App.4th at p. 1399.)
• “Unruh Act issues have often been decided as questions of law on demurrer or
summary judgment when the policy or practice of a business establishment is
valid on its face because it bears a reasonable relation to commercial objectives
appropriate to an enterprise serving the public.” (Harris, supra, 52 Cal.3d at p.
1165, internal citations omitted.)
• “It is thus manifested by section 51 that all persons are entitled to the full and
equal privilege of associating with others in any business establishment. And
section 52, liberally interpreted, makes clear that discrimination by such a
business establishment against one’s right of association on account of the
associates’ color, is violative of the Act. It follows . . . that discrimination by a
business establishment against persons on account of their association with
others of the black race is actionable under the Act.” (Winchell v. English
(1976) 62 Cal.App.3d 125, 129 [133 Cal.Rptr. 20].)
• “Appellant is disabled as a matter of law not only because she is HIV positive,
but also because it is undisputed that respondent ‘regarded or treated’ her as a
person with a disability. The protection of the Unruh Civil Rights Act extends
both to people who are currently living with a physical disability that limits a
life activity and to those who are regarded by others as living with such a
disability. . . . ‘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
272
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.’ Thus,
even an HIV-positive person who is outwardly asymptomatic is protected by the
Unruh Civil Rights Act.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519,
529–530 [155 Cal.Rptr.3d 620], original italics, internal citations omitted.)
• “[T]he Unruh Civil Rights Act prohibits arbitrary discrimination in public
accommodations with respect to trained service dogs, but not to service-
animals-in-training.” (Miller v. Fortune Commercial Corp. (2017) 15
Cal.App.5th 214, 224 [223 Cal.Rptr.3d 133].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 898–914
Chin et al., California Practice Guide: Employment Litigation, Ch.7-G, Unruh Civil
Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, §§ 116.10–116.13 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 et seq. (Matthew Bender)
273
New September 2003; Revised June 2012; Renumbered from CACI No. 3021 and
Revised December 2012; Revised June 2013, December 2016
Directions for Use
Select the bracketed option from element 2 that is most appropriate to the facts of
the case.
Under the Unruh Civil Rights Act (see CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements), the California Supreme Court has held that
intentional discrimination is required. (See Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142, 1159–1162 [278 Cal.Rptr. 614, 805 P.2d 873].) While there
is no similar California case imposing an intent requirement under Civil Code
section 51.5, Civil Code section 51.5 requires that the discrimination be on account
of the protected category. (Civ. Code, § 51.5(a).) The kinds of prohibited conduct
would all seem to involve intentional acts. (See Nicole M. v. Martinez Unified Sch.
Dist. (N.D. Cal. 1997) 964 F. Supp. 1369, 1389, superseded by statute on other
grounds as stated in Sandoval v. Merced Union High Sch. (E.D. Cal. 2006) 2006
U.S. Dist. LEXIS 28446.) The intent requirement is encompassed within the
motivating-reason element (element 2).
There is an exception to the intent requirement under the Unruh Act for conduct
that violates the Americans With Disabilities Act. (See Munson v. Del Taco, Inc.
(2009) 46 Cal.4th 661, 665 [94 Cal.Rptr.3d 685, 208 P.3d 623].). Because this
exception is based on statutory construction of the Unruh Act (see Civ. Code,
§ 51(f)), the committee does not believe that it applies to section 51.5, which
contains no similar language.
Note that there are two causation elements. There must be a causal link between
the discriminatory intent and the adverse action (see element 2), and there must be
a causal link between the adverse action and the harm (see element 4).
Element 2 uses the term “substantial motivating reason” to express causation
between the protected classification and the defendant’s conduct. “Substantial
motivating reason” has been held to be the appropriate standard under the Fair
Employment and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether the FEHA standard applies under Civil
Code section 51.5 has not been addressed by the courts.
For an instruction on damages under Civil Code section 51.5, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
275
It is possible that elements 3 and 4 are not needed if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707
P.2d 195].)
The judge may decide the issue of whether the defendant is a business
establishment as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986)
178 Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be
needed if there are factual issues. This element has been omitted from the
instruction because it is unlikely to go to a jury.
Conceptually, this instruction has some overlap with CACI No. 3060, Unruh Civil
Rights Act—Essential Factual Elements. For a discussion of the basis of this
instruction, see Jackson v. Superior Court (1994) 30 Cal.App.4th 936, 941 [36
Cal.Rptr.2d 207].
Sources and Authority
• Discrimination in Business Dealings. Civil Code section 51.5.
• Protected Characteristics. Civil Code section 51(b).
• “In 1976 the Legislature added Civil Code section 51.5 to the Unruh Civil
Rights Act and amended Civil Code section 52 (which provides penalties for
those who violate the Unruh Civil Rights Act), in order to, inter alia, include
section 51.5 in its provisions.” (Pines v. Tomson (1984) 160 Cal.App.3d 370,
384 [206 Cal.Rptr. 866], footnote omitted.)
• “[I]t is clear from the cases under section 51 that the Legislature did not intend
in enacting section 51.5 to limit the broad language of section 51 to include
only selling, buying or trading. Both sections 51 and 51.5 have been liberally
applied to all types of business activities. Furthermore, section 51.5 forbids a
business to ‘discriminate against’ ‘any person’ and does not just forbid a
business to ‘boycott or blacklist, refuse to buy from, sell to, or trade with any
person.’ ” (Jackson, supra, 30 Cal.App.4th at p. 941, internal citation and
footnote omitted.)
• “Although the phrase ‘business establishment of every kind whatsoever’ has
been interpreted by the Supreme Court and the Court of Appeal in the context
of section 51, we are aware of no case which interprets that term in the context
of section 51.5. We believe, however, that the Legislature meant the identical
language in both sections to have the identical meaning.” (Pines, supra, 160
Cal.App.3d at p. 384, internal citations omitted.)
• “[T]he classifications specified in section 51.5, which are identical to those of
section 51, are likewise not exclusive and encompass other personal
characteristics identified in earlier cases.” (Roth v. Rhodes (1994) 25
Cal.App.4th 530, 538 [30 Cal.Rptr.2d 706], internal citations omitted.)
276
• “[T]he analysis under Civil Code section 51.5 is the same as the analysis we
have already set forth for purposes of the [Unruh Civil Rights] Act.” (Semler v.
General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1404 [127
Cal.Rptr.3d 794].)
• “[W]hen such discrimination occurs, a person has standing under section 51.5 if
he or she is ‘associated with’ the disabled person and has also personally
experienced the discrimination.” (Osborne v. Yasmeh (2016) 1 Cal.App.5th
1118, 1134 [205 Cal.Rptr.3d 656].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 898–914
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, §§ 116.10–116.13 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
277
New September 2003; Renumbered from CACI No. 3022 December 2012; Revised
June 2013, July 2018
Directions for Use
For an instruction on damages under Civil Code section 51.6, see CACI No. 3067,
Unruh Civil Rights Act—Damages. Note that the jury may award a successful
plaintiff up to three times actual damages but not less than $4,000. (Civ. Code,
§ 52(a)); see also Civ. Code, § 52(h) [“actual damages” means special and general
damages].)
It is possible that elements 2 and 3 are not needed if only the statutory minimum
$4000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707
P.2d 195].)
The judge may decide the issue of whether the defendant is a business
establishment as a matter of law. (Rotary Club of Duarte v. Bd. of Directors (1986)
178 Cal.App.3d 1035, 1050 [224 Cal.Rptr. 213].) Special interrogatories may be
needed if there are factual issues. This element has been omitted from the
instruction because it is unlikely to go to a jury.
Price discrimination based on age has been held to violate the Unruh Act, at least if
there is no statute-based policy supporting the differential. (See Candelore v. Tinder,
Inc. (2018) 19 Cal.App.5th 1138, 1146–1155 [228 Cal.Rptr.3d 336]; but see
278
Javorsky v. Western Athletic Clubs, Inc. (2015) 242 Cal.App.4th 1386, 1402–1403
[195 Cal. Rptr. 3d 706].)
Sources and Authority
• Gender Price Discrimination. Civil Code section 51.6.
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d
152, 159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other
grounds in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133,
707 P.2d 195].)
• “ ‘[D]iscounts must be “applicable alike to persons of every sex, color, race,
[and age, etc.]”, instead of being contingent on some arbitrary, class-based
generalization.’ ” (Candelore, supra, 19 Cal.App.5th at p. 1154.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 905
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.15 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.44 (Matthew Bender)
279
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023A December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving actual acts
of violence alleged to have been committed by the defendant against the plaintiff.
For an instruction involving only threats of violence, see CACI No. 3064, Threats
of Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s acts.
“Substantial motivating reason” has been held to be the appropriate standard under
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
280
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Under the Ralph Act, a plaintiff must establish the defendant threatened or
committed violent acts against the plaintiff or their property, and a motivating
reason for doing so was a prohibited discriminatory motive, or that [defendant]
aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v.
County of Orange (2017) 10 Cal.App.5th 1268, 1291 [217 Cal.Rptr.3d 275].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and
provides for a civil remedy for violation of that right. Nothing in the statute
requires that a plaintiff prove that the offending act was motivated by hate.”
(Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150
Cal.Rptr.3d 861].)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d
152, 159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other
grounds in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133,
707 P.2d 195].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et
seq.
Wiseman, et al., California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch. 14(IV)-B, Consumer and Civil Rights—Ralph Civil Rights Act of
1976—Elements ¶ 14:940 (The Rutter Group)
Cheng, et al., Calif. Fair Housing and Public Accommodations § 9:36, 9:37 (The
Rutter Group) (Ralph Act, Calif. Jury Instructions)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
281
282
Derived from former CACI No. 3023 December 2009; Renumbered from CACI No.
3023B December 2012; Revised June 2013, December 2016
Directions for Use
Use this instruction for a cause of action under the Ralph Act involving threats of
violence alleged to have been directed by the defendant toward the plaintiff. For an
instruction involving actual acts of violence, see CACI No. 3063, Acts of
Violence—Ralph Act—Essential Factual Elements.
Note that element 2 uses the term “substantial motivating reason” to express both
intent and causation between the protected classification and the defendant’s threats.
“Substantial motivating reason” has been held to be the appropriate standard under
the Fair Employment and Housing Act to address the possibility of both
discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica
283
(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507,
“Substantial Motivating Reason” Explained.) Whether the FEHA standard applies
under the Ralph Act has not been addressed by the courts.
No published California appellate opinion establishes elements 3 and 4. However,
the Ninth Circuit Court of Appeals and the California Fair Employment and
Housing Commission have held that a reasonable person in the plaintiff’s position
must have been intimidated by the actions of the defendant and have perceived a
threat of violence. (See Winarto v. Toshiba America Electronics Components, Inc.
(9th Cir. 2001) 274 F.3d 1276, 1289–1290; Dept. Fair Empl. & Hous. v. Lake Co.
Dept. of Health Serv. (July 22, 1998) 1998 CAFEHC LEXIS 16, **55–56.)
Liability may also be found if a defendant “aids, incites, or conspires” in the denial
of a right protected under Civil Code section 51.7. (Civ. Code, § 52(b).) This
instruction should be modified if aiding, inciting, or conspiring is asserted as
theories of liability. See also instructions in the Conspiracy series (CACI No. 3600
et seq.).
Sources and Authority
• Ralph Act. Civil Code section 51.7.
• Protected Characteristics. Civil Code section 51(b).
• Remedies Under Ralph Act. Civil Code section 52(b).
• “The unambiguous language of this section gives rise to a cause of action in
favor of a person against whom violence or intimidation has been committed or
threatened.” (Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1277 [237 Cal.Rptr.
873].)
• “Under the Ralph Act, a plaintiff must establish the defendant threatened or
committed violent acts against the plaintiff or their property, and a motivating
reason for doing so was a prohibited discriminatory motive, or that [defendant]
aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v.
County of Orange (2017) 10 Cal.App.5th 1268, 1291 [217 Cal.Rptr.3d 275].)
• “Nor do we agree with defendants that ‘because of’ logically means ‘hatred.’
Section 51.7 provides that all persons ‘have the right to be free from any
violence, or intimidation by threat of violence, committed against their persons
or property because of . . .’ specified characteristics, including sex, and
provides for a civil remedy for violation of that right. Nothing in the statute
requires that a plaintiff prove that the offending act was motivated by hate.”
(Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269 [150
Cal.Rptr.3d 861].)
• “The test is: ‘would a reasonable person, standing in the shoes of the plaintiff,
have been intimidated by the actions of the defendant and have perceived a
threat of violence?’ ” (Winarto, supra, 274 F.3d at pp. 1289–1290, internal
citation omitted.)
• “When a threat of violence would lead a reasonable person to believe that the
284
threat will be carried out, in light of the ‘entire factual context,’ including the
surrounding circumstances and the listeners’ reactions, then the threat does not
receive First Amendment protection, and may be actionable under the Ralph
Act. The only intent requirement is that respondent ‘intentionally or knowingly
communicates his [or her] threat, not that he intended or was able to carry out
his threat.’ A threat exists if the ‘target of the speaker reasonably believes that
the speaker has the ability to act him or herself or to influence others. . . . It is
the perception of a reasonable person that is dispositive, not the actual intent of
the speaker.’ ” (Dept. Fair Empl. & Hous., supra, 1998 CAFEHC LEXIS at pp.
55–56, internal citations omitted.)
• “Section 51 by its express language applies only within California. It cannot
(with its companion penalty provisions in § 52) be extended into the Hawaiian
jurisdiction. A state cannot regulate or proscribe activities conducted in another
state or supervise the internal affairs of another state in any way, even though
the welfare or health of its citizens may be affected when they travel to that
state.” (Archibald v. Cinerama Hawaiian Hotels, Inc. (1977) 73 Cal.App.3d
152, 159 [140 Cal.Rptr. 599], internal citations omitted, disapproved on other
grounds in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 [219 Cal.Rptr. 133,
707 P.2d 195].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et
seq.
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A,
Employment Discrimination—Unruh Civil Rights Act, ¶¶ 7:1528–7:1529 (The
Rutter Group)
Wiseman, et al., California Practice Guide: Civil Procedure Before Trial Claims &
Defenses, Ch. 14(IV)-B, Consumer and Civil Rights—Ralph Civil Rights Act of
1976—Elements ¶ 14:940 (The Rutter Group)
Cheng, et al., Calif. Fair Housing and Public Accommodations §§ 9:36, 9:37 (The
Rutter Group) (Ralph Act, Calif. Jury Instructions)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.80 (Matthew Bender)
California Civil Practice: Civil Rights Litigation, §§ 3:1–3:15 (Thomson Reuters)
285
New September 2003; Revised April 2008; Renumbered from CACI No. 3024
December 2012
Directions for Use
Select either or both options for element 2 depending on the defendant’s conduct.
See also CACI No. 2524, “Severe or Pervasive” Explained.
Sources and Authority
• Sexual Harassment in Defined Relationship. Civil Code section 51.9.
• “[The] history of the [1999] amendments to Civil Code section 51.9 leaves no
doubt of the Legislature’s intent to conform the requirements governing liability
for sexual harassment in professional relationships outside the workplace to
those of the federal law’s Title VII and California’s FEHA, both of which
pertain to liability for sexual harassment in the workplace. Under both laws, an
employee plaintiff who cannot prove a demand for sexual favors in return for a
job benefit (that is, quid pro quo harassment) must show that the sexually
harassing conduct was so pervasive or severe as to alter the conditions of
employment. With respect to liability under section 51.9, which covers a wide
286
287
New September 2003; Renumbered from CACI No. 3025 and Revised December
2012, November 2018
Directions for Use
Select the first option for element 1 if the defendant’s conduct involved threats of
violence. (See Civ. Code, § 52.1(j).) Select the second option if the conduct
involved actual violence.
The Bane Act provides that speech alone is not sufficient to constitute a violation
unless it involves a credible threat of violence. (Civ. Code, § 52.1(j).) This
limitation would appear to foreclose a claim based on threats, intimidation, or
coercion involving a nonviolent consequence. (See Cabesuela v. Browning-Ferris
Industries (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60] [to state a cause of
action under Bane Act there must first be violence or intimidation by threat of
violence].) For example, it would not be a violation to threaten to report someone
to immigration if the person exercises a right granted under labor law. No case has
288
been found, however, that applies the speech limitation to foreclose such a claim,
and several courts have suggested that this point is not fully settled. (See Shoyoye
v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [137 Cal.Rptr.3d 839]
[we “need not decide that every plaintiff must allege violence or threats of violence
in order to maintain an action under section 52.1”]; City and County of San
Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408 [39 Cal.Rptr.3d 1] [also
noting issue but finding it unnecessary to address].) To assert such a claim, modify
element 1, option 1 to allege coercion based on a nonviolent threat with severe
consequences.
Civil Code section 52(a) provides for damages up to three times actual damages
but a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act),
51.5, and 51.6. Civil Code section 52(b) provides for punitive damages for
violations of Civil Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of
Section 52 mentions the Bane Act or Civil Code section 52.1. Nevertheless, the
reference to section 52 in subsection (b) of the Bane Act would seem to indicate
that damages may be recovered under both subsections (a) and (b) of section 52.
Under the Unruh Act, if only the statutory minimum damages of $4,000 is sought,
it is not necessary to prove harm and causation. (See Koire v. Metro Car Wash
(1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Section 52 provides for
minimum statutory damages for every violation of section 51, regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].) Presumably, the same rule applies under the Bane
Act as the statutory minimum of section 52(a) should be recoverable Therefore,
omit elements 2 and 3 unless actual damages are sought. If actual damages are
sought, combine CACI No. 3067, Unruh Civil Rights Act—Damages, and CACI
No. 3068, Ralph Act—Damages and Penalty, to recover damages under both
subsections (a) and (b) of section 52.
It has been the rule that in a wrongful detention case, the coercion required to
support a Bane Act claim must be coercion independent from that inherent in the
wrongful detention itself. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th
968, 981 [159 Cal.Rptr.3d 204].) One court, however, did not apply this rule in a
wrongful arrest case. The court instead held that the “threat, intimidation or
coercion” element requires a specific intent to violate protected rights. (Cornell v.
City & County of San Francisco (2017) 17 Cal.App.5th 766, 790–804 [225
Cal.Rptr.3d 356].) Element 2 expresses this requirement.
Sources and Authority
• Bane Act. Civil Code section 52.1.
• Remedies Under Bane Act. Civil Code section 52.
• “The Bane Act permits an individual to pursue a civil action for damages where
another person ‘interferes by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation, or coercion, with the exercise or enjoyment by
any individual or individuals of rights secured by the Constitution or laws of
the United States, or of the rights secured by the Constitution or laws of this
289
state.’ ‘The essence of a Bane Act claim is that the defendant, by the specified
improper means (i.e., “threat[], intimidation or coercion”), tried to or did
prevent the plaintiff from doing something he or she had the right to do under
the law or to force the plaintiff to do something that he or she was not required
to do under the law.’ ” (King v. State of California (2015) 242 Cal.App.4th 265,
294 [195 Cal.Rptr.3d 286], internal citation omitted.)
• “[S]ection 52.1, was enacted a decade [after the Ralph Act] as part of Assembly
Bill No. 63 (1987–1988 Reg. Sess.) (Assembly Bill No. 63) and is known as
the Tom Bane Civil Rights Act. It was intended to supplement the Ralph Civil
Rights Act as an additional legislative effort to deter violence. The stated
purpose of the bill was ‘to fill in the gaps left by the Ralph Act’ by allowing an
individual to seek relief to prevent the violence from occurring before it was
committed and providing for the filing of criminal charges.” (Stamps v. Superior
Court (2006) 136 Cal.App.4th 1441, 1447 [39 Cal.Rptr.3d 706], internal citation
omitted.)
• “The Legislature enacted section 52.1 to stem a tide of hate crimes.” (Jones v.
Kmart Corp. (1998) 17 Cal.4th 329, 338 [70 Cal.Rptr.2d 844, 949 P.2d 941],
internal citation omitted.)
• “[T]o state a cause of action under section 52.1 there must first be violence or
intimidation by threat of violence. Second, the violence or threatened violence
must be due to plaintiff’s membership in one of the specified classifications set
forth in Civil Code section 51.7 or a group similarly protected by constitution
or statute from hate crimes.” (Gabrielle A. v. County of Orange (2017) 10
Cal.App.5th 1268, 1290 [217 Cal.Rptr.3d 275].)
• “The plaintiff must show ‘the defendant interfered with or attempted to interfere
with the plaintiff’s legal right by threatening or committing violent acts.’ ”
(Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395 [218
Cal.Rptr.3d 38].)
• “However, the statutory language does not limit its application to hate crimes.
Notably, the statute does not require a plaintiff to allege the defendant acted
with discriminatory animus or intent based upon the plaintiff’s membership in a
protected class of persons.” (Shoyoye, supra, 203 Cal.App.4th at p. 956.)
• “The phrase ‘under color of law’ indicates, without doubt, that the Legislature
intended to include law enforcement officers within the scope of Section 52.1 if
the requisites of the statute are otherwise met.” (Cornell, supra, 17 Cal.App.5th
at p. 800.)
• “Civil Code section 52.1, the Bane Act civil counterpart of [Penal Code] section
422.6, recognizes a private right of action for damages and injunctive relief for
interference with civil rights.” (In re M.S. (1995) 10 Cal.4th 698, 715 [42
Cal.Rptr.2d 355, 896 P.2d 1365].)
• “[T]he Bane Act requires that the challenged conduct be intentional.” (Simmons
v. Superior Court (2016) 7 Cal.App.5th 1113, 1125 [212 Cal.Rptr.3d 884].)
290
the Bane Act.” (Bender, supra, 217 Cal.App.4th at p. 981, internal citations
omitted.)
• “Here, there clearly was a showing of coercion separate and apart from the
coercion inherent in an unlawful arrest. [Defendant officer] wrongfully detained
and arrested plaintiff, because he had no probable cause to believe plaintiff had
committed any crime. But, in addition, [defendant officer] deliberately and
unnecessarily beat and pepper sprayed the unresisting, already handcuffed
plaintiff. That conduct was not the coercion that is inherent in a wrongful
arrest.” (Bender, supra, 217 Cal.App.4th at p. 979, original italics.)
• “We acknowledge that some courts have read Shoyoye as having announced
‘independen[ce] from [inherent coercion]’ as a requisite element of all Section
52.1 claims alleging search-and-seizure violations, but we think those courts
misread the statute as well as the import of Venegas. By its plain terms, Section
52.1 proscribes any ‘interfere[nce] with’ or attempted ‘interfere[nce] with’
protected rights carried out ‘by threat, intimidation or coercion.’ Nothing in the
text of the statute requires that the offending ‘threat, intimidation or coercion’
be ‘independent’ from the constitutional violation alleged.” (Cornell, supra, 17
Cal.App.5th at pp. 799–800.)
• “[W]here, as here, an unlawful arrest is properly pleaded and proved, the
egregiousness required by Section 52.1 is tested by whether the circumstances
indicate the arresting officer had a specific intent to violate the arrestee’s right
to freedom from unreasonable seizure, not by whether the evidence shows
something beyond the coercion ‘inherent’ in the wrongful detention.” (Cornell,
supra, 17 Cal.App.5th at pp. 801–802.)
• “[T]his test ‘ “essentially sets forth two requirements for a finding of ‘specific
intent’ . . . The first is a purely legal determination. Is the . . . right at issue
clearly delineated and plainly applicable under the circumstances of the case? If
the trial judge concludes that it is, then the jury must make the second, factual,
determination. Did the defendant commit the act in question with the particular
purpose of depriving the citizen victim of his enjoyment of the interests
protected by that . . . right? If both requirements are met, even if the defendant
did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a
matter of law to have acted [with the requisite specific intent]—i.e., ‘in reckless
disregard of constitutional [or statutory] prohibitions or guarantees.’ ” ’ ”
(Cornell, supra, 17 Cal.App.5th at p. 803.)
• “Civil Code section 52.1 does not address the immunity established by section
844.6 [public entity immunity for injury to prisoners]. Nothing in Civil Code
section 52.1 indicates an intent to abrogate this specific immunity provision.
The immunity that it creates therefore applies to [plaintiff]’s Bane Act claim.”
(Towery v. State of California (2017) 14 Cal.App.5th 226, 234 [221 Cal.Rptr.3d
692].)
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989
292
et seq.
Cheng, et al., Calif. Fair Housing and Public Accommodations § 9:38 (The Rutter
Group) (The Bane Act)
California Civil Practice: Civil Rights Litigation, §§ 3:1–3:15 (Thomson Reuters)
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Employment
Opportunity Laws, § 40.12[2] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117A, Civil Rights: Interference
With Civil Rights by Threats, Intimidation, Coercion, or Violence, § 117A.11
(Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§§ 35.01, 35.20 et seq. (Matthew Bender)
293
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you also must decide how much money will
reasonably compensate [him/her] for the harm. This compensation is
called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages.
However, [name of plaintiff] does not have to prove the exact amount of
the harm or the exact amount of damages that will provide reasonable
compensation for the harm. You must not speculate or guess in
awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
[Insert item(s) of claimed harm.]
In addition, you may award [name of plaintiff] up to three times the
amount of [his/her] actual damages as a penalty against [name of
defendant].
New September 2003; Revised June 2012; Renumbered from CACI No. 3026
December 2012; Revised June 2013
Directions for Use
Give this instruction for violations of the Unruh Civil Rights Act in which actual
damages are claimed. (See Civ. Code, § 51; CACI No. 3060, Unruh Civil Rights
Act—Essential Factual Elements.) This instruction may also be given for claims
under Civil Code section 51.5 (see CACI No. 3061, Discrimination in Business
Dealings—Essential Factual Elements) and Civil Code section 51.6 (see CACI No.
3062, Gender Price Discrimination—Essential Factual Elements). If the only claim
is for statutory damages of $4,000 (see Civ. Code, § 52(a)), this instruction is not
needed. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133,
707 P.2d 195] [Unruh Act violations are per se injurious; Civ. Code, § 52(a)
provides for minimum statutory damages for every violation regardless of the
plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means
special and general damages].)
See the instructions in the Damages series (CACI Nos. 3900 et seq.) for additional
instructions on actual damages and punitive damages. Note that the statutory
minimum amount of recovery for a plaintiff is $4,000 in addition to actual
damages. If the verdict is for less than that amount, the judge should modify the
verdict to reflect the statutory minimum.
294
295
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant], you must award the following:
1. Actual damages sufficient to reasonably compensate [name of
plaintiff] for the harm;
2. A civil penalty of $25,000; and
3. Punitive damages.
[Name of plaintiff] must prove the amount of [his/her] actual damages.
However, [name of plaintiff] does not have to prove the exact amount of
the harm or the exact amount of damages that will provide reasonable
compensation for the harm. You must not speculate or guess in
awarding damages.
The following are the specific items of actual damages claimed by [name
of plaintiff]:
[Insert item(s) of claimed harm.]
New September 2003; Revised June 2012; Renumbered from CACI No. 3027
December 2012
Directions for Use
Give this instruction for violations of the Ralph Act. (See Civ. Code, § 51.7; CACI
No. 3063, Acts of Violence—Ralph Act—Essential Factual Elements, and CACI No.
3064, Threats of Violence—Ralph Act—Essential Factual Elements.) This
instruction may also be given for claims under Civil Code section 51.9 (see CACI
No. 3065, Sexual Harassment in Defined Relationship—Essential Factual Elements)
with item 2 omitted. (See Civ. Code, § 52(b)(2).)
See the Damages series (CACI Nos. 3900 et seq.) for additional instructions on
actual damages and punitive damages. CACI No. 3942, Punitive
Damages—Individual Defendant—Bifurcated Trial (Second Phase), instructs the
jury on how to calculate the amount of punitive damages.
Sources and Authority
• Remedies Under Ralph Act. Civil Code section 52(b).
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 898–914
Chin, et al., California Practice Guide: Employment Litigation, Ch. 7-G, Unruh
Civil Rights Act, ¶ 7:1525 et seq. (The Rutter Group)
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
296
297
New April 2009; Renumbered from CACI No. 3028 December 2012
Directions for Use
This instruction does not include language that elaborates on what does or does not
constitute “deliberate indifference” beyond the broad standard of “clearly
unreasonable in light of all the known circumstances.” In Donovan v. Poway
Unified School Dist., the court noted that “deliberate indifference” will often be a
fact-based question for which bright line rules are ill-suited. However, the court
noted numerous examples from federal cases in which the standard was applied.
The failure of school officials to undertake a timely investigation of a complaint of
discrimination may amount to deliberate indifference. School officials also must
take timely and reasonable measures to end known harassment. A response may be
clearly unreasonable if a school official ignores a complaint of discrimination or if
the initial measures chosen to respond to the harassment are ineffective. (Donovan
v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 611 [84 Cal.Rptr.3d
285].) Any of these factors that are applicable to the facts of the case may be
added at the end of the instruction.
Sources and Authority
• Harassment in Educational Institution. Education Code section 201.
• Discrimination in Educational Institutions. Education Code section 220.
• Duty to Inform of Remedies. Education Code section 262.3(b).
298
• “We conclude that to prevail on a claim under section 220 for peer sexual
orientation harassment, a plaintiff must show (1) he or she suffered “severe,
pervasive and offensive” harassment that effectively deprived the plaintiff of the
right of equal access to educational benefits and opportunities; (2) the school
district had ‘actual knowledge’ of that harassment; and (3) the school district
acted with ‘deliberate indifference’ in the face of such knowledge. We further
conclude that from the words of section 262.3, subdivision (b), as well as from
other markers of legislative intent, money damages are available in a private
enforcement action under section 220.” (Donovan, supra, 167 Cal.App.4th at p.
579.)
• “Like Title IX, . . . enforcement of the Education Code’s antidiscrimination law
rests on the assumption of ‘actual notice’ to the funding recipient. . . . [¶¶] We
decline to adopt a liability standard for damages under section 220 based on
principles of respondeat superior and/or constructive notice, particularly in light
of the circumstances presented here when the claim of discrimination is not, for
example, based on an official policy of the District, but is instead the result of
peer sexual orientation harassment and the District’s response (or lack thereof)
to such harassment. . . . [N]egligence principles should not apply to impose
liability under a statutory scheme when administrative enforcement of that
scheme contemplates actual notice to the funding recipient, with an opportunity
to take corrective action before a private action may lie. By requiring actual
notice, we ensure liability for money damages under section 220 is based on a
funding recipient’s own misconduct, determined by its own deliberate
indifference to known acts of harassment.” (Donovan, supra, 167 Cal.App.4th at
pp. 604–605, original italics, internal citations omitted.)
• “The decisions of federal courts interpreting Title IX provide a meaningful
starting point to determine whether the response of defendants here amounted to
deliberate indifference under section 220. Under federal law, deliberate
indifference is a ‘ “very high standard.” ’ Actions that in hindsight are
‘unfortunate’ or even ‘imprudent’ will not suffice.” (Donovan, supra, 167
Cal.App.4th at p. 610, internal citations omitted.)
Secondary Sources
Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 798
11 California Forms of Pleading and Practice, Ch. 112, Civil Rights: Government-
Funded Programs and Activities, §§ 112.11, 112.16 (Matthew Bender)
3 California Points and Authorities, Ch. 35A, Civil Rights: Equal Protection,
§ 35A.32A (Matthew Bender)
299
Civil Rights Act. (See Civ. Code, § 55.56(a).) Do not give this instruction if actual
damages are sought. CACI No. 3067, Unruh Civil Rights Act—Damages, may be
given for claims for actual damages under the Unruh Act and adapted for use under
the DPA.
The DPA provides disabled persons with rights of access to public facilities. (See
Civ. Code, §§ 54, 54.1.) Under the DPA, a disabled person who encounters barriers
to access at a public accommodation may recover minimum statutory damages for
each particular occasion on which he or she was denied access. (Civ. Code,
§§ 54.3, 55.56(f).) However, the Construction Related Accessibility Standard Act
(CRASA) requires that before statutory damages may be recovered, the disabled
person either have personally encountered the violation on a particular occasion or
have been deterred from accessing the facility on a particular occasion. (See Civ.
Code, § 55.56(b).) Also, specified violations are deemed to be merely technical and
are presumed to not cause a person difficulty, discomfort, or embarrassment for the
purpose of an award of minimum statutory damages. (See Civ. Code, § 55.56(e).)
Give either or both options for element 2 depending on whether the plaintiff
personally encountered the barrier or was deterred from patronizing the business
because of awareness of the barrier. The next-to-last paragraph is explanatory of the
first option, and the last paragraph is explanatory of the second option.
Sources and Authority
• Disabled Persons Act: Right of Access to Public Facilities. Civil Code sections
54, 54.1.
• Action for Interference With Admittance to or Enjoyment of Public Facilities.
Civil Code section 54.3.
• Construction-Related Accessibility Standard Act. Civil Code section 55.56.
• “Part 2.5 of division 1 of the Civil Code, currently consisting of sections 54 to
55.3, is commonly referred to as the “Disabled Persons Act,” although it has no
official title. Sections 54 and 54.1 generally guarantee individuals with
disabilities equal access to public places, buildings, facilities and services, as
well as common carriers, housing and places of public accommodation, while
section 54.3 specifies remedies for violations of these guarantees, including a
private action for damages.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661,
674 fn. 8 [94 Cal.Rptr.3d 685, 208 P.3d 623].)
• “[L]egislation (applicable to claims filed on or after Jan. 1, 2009 ([Civ. Code,]
§ 55.57)) restricts the availability of statutory damages under sections 52 and
54.3, permitting their recovery only if an accessibility violation actually denied
the plaintiff full and equal access, that is, only if ‘the plaintiff personally
encountered the violation on a particular occasion, or the plaintiff was deterred
from accessing a place of public accommodation on a particular occasion’
(§ 55.56, subd. (b)). It also limits statutory damages to one assessment per
occasion of access denial, rather than being based on the number of
accessibility standards violated. (Id., subd. (e).)” (Munson, supra, 46 Cal.4th at
pp. 677−678.)
301
• “ ‘[S]ection 54.3 imposes the standing requirement that the plaintiff have
suffered an actual denial of equal access before any suit for damages can be
brought. . . . [A] plaintiff cannot recover damages under section 54.3 unless the
violation actually denied him or her access to some public facility. [¶] Plaintiff’s
attempt to equate a denial of equal access with the presence of a violation of
federal or state regulations would nullify the standing requirement of section
54.3, since any disabled person could sue for statutory damages whenever he or
she encountered noncompliant facilities, regardless of whether that lack of
compliance actually impaired the plaintiff’s access to those facilities. Plaintiff’s
argument would thereby eliminate any distinction between a cause of action for
equitable relief under section 55 and a cause of action for damages under
section 54.3.’ ” (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1223 [99
Cal.Rptr.3d 746].)
• “Like the Unruh Civil Rights Act, the DPA incorporates the ADA to the extent
that ‘A violation of the right of an individual under the Americans with
Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of
this section.’ (Civ. Code, § 54, subd. (c).” (Baughman v. Walt Disney World Co.
(2013) 217 Cal.App.4th 1438, 1446 [159 Cal.Rptr.3d 825].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 957 et
seq.
11 California Forms of Pleading and Practice, Ch. 116, Civil Rights: Discrimination
in Business Establishments, § 116.36 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act,
§ 35.20 (Matthew Bender)
302
304
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
306
[policy/custom]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011;
Renumbered from CACI No. VF-3005 December 2012; Revised December 2016
308
309
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011, December
2011; Renumbered from CACI No. VF-3006 December 2012; Revised December
2016
Directions for Use
This verdict form is based on CACI No. 3003, Local Government
Liability—Failure to Train—Essential Factual Elements. It should be given with
CACI No. VF-3000, Violation of Federal Civil Rights—In General, to impose
liability on the governmental entity for the acts of its officer or employee.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
311
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3003–VF-3009. Reserved for Future Use
312
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3001 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3020, Excessive Use of
Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
314
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3002 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3022, Unreasonable Search—Search With
a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
316
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3003 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search—Search
Without a Warrant—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
318
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3004 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3023, Unreasonable Search—Search
320
321
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011;
Renumbered from CACI No. VF-3007 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3042, Violation of Prisoner’s Federal
Civil Rights—Eighth Amendment—Excessive Force.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
323
findings that are required in order to calculate the amount of prejudgment interest.
324
325
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2011;
326
Renumbered from CACI No. VF-3008 December 2012; Revised June 2015,
December 2016
Directions for Use
This verdict form is based on CACI No. 3040, Violation of Prisoner’s Federal Civil
Rights—Eighth Amendment—Substantial Risk of Serious Harm.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 7 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
327
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3009 December 2012; Revised June 2014, June 2015, December
2016
Directions for Use
This verdict form is based on CACI No. 3041, Violation of Prisoner’s Federal
Civil Rights—Eighth Amendment—Medical Care.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
329
330
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
332
333
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Answer question 5.
5. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2012;
Renumbered from CACI No.VF-3010 December 2012; Revised June 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 3060, Unruh Civil Rights Act—Essential
Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff’s association with another is the basis for the claim, modify question
2 as in element 2 of CACI No. 3060.
Questions 3 and 4 may be omitted if only the statutory minimum of $4,000
damages is sought. Harm is presumed for this amount. (See Civ. Code, § 52(a);
Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d
195].)
The penalty in question 5 refers to the right of the jury to award a maximum of
three times the amount of actual damages but not less than $4,000. (Civ. Code,
335
§ 52(a).) The judge should correct the verdict if the jury award goes over that limit.
Also, if the jury awards nothing or an amount less than $4,000 in question 5, the
judge should increase that award to $4,000 to reflect the statutory minimum.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
336
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
Answer question 5.
5. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010, June 2012;
Renumbered from CACI No. VF-3011 December 2012; Revised June 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 3061, Discrimination in Business
Dealings—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If an alternative basis for the defendant’s alleged motivation is at issue, modify
question 2 as in element 2 of CACI No. 3061.
The award of a penalty in question 5 refers to the right of the jury to award a
maximum of three times the amount of actual damages but not less than $4,000.
(Civ. Code, § 52(a).) The judge should correct the verdict if the jury award goes
over that amount. Also, if the jury awards nothing or an amount less than $4,000 in
question 5, then the judge should increase that award to $4,000 to reflect the
statutory minimum.
338
It is possible that questions 3 and 4 may be omitted if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707
P.2d 195].)
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
339
Answer question 4.
4. What amount, if any, do you award as a penalty against [name of
defendant]? $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3012 December 2012; Revised June 2013, December 2016
Directions for Use
This verdict form is based on CACI No. 3062, Gender Price
Discrimination—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
The award of a penalty in question 4 refers to the right of the jury to award a
maximum of three times the amount of actual damages but not less than $4,000.
(See Civ. Code, § 52(a).), The judge should correct the verdict if the jury award
goes over that amount. Also, if jury awards nothing or an amount less than $4,000
in question 4 then the judge should increase that award to $4,000 to reflect the
statutory minimum.
It is possible that questions 2 and 3 may be omitted if only the statutory minimum
$4,000 award is sought. With regard to the Unruh Act (Civ. Code, § 51), which is
also governed by Civil Code section 52(a), the California Supreme Court has held
that a violation is per se injurious, and that section 52 provides for minimum
statutory damages for every violation regardless of the plaintiff’s actual damages.
(See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707
P.2d 195].)
If specificity is not required, users do not have to itemize all the damages listed in
question 3 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
341
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
342
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2009, December 2010;
Renumbered from CACI No. VF-3013 December 2012; Revised June 2013,
December 2016
Directions for Use
This verdict form is based on CACI No. 3063, Acts of Violence—Ralph
344
345
5. Yes No
5. If your answer to question 5 is yes, then answer question 6. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
6. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
[Answer question 7.
7. What amount do you award as punitive damages?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010;
347
Renumbered from CACI No. VF-3014 December 2012; Revised December 2016
Directions for Use
This verdict form is based on CACI No. 3065, Sexual Harassment in Defined
Relationship—Essential Factual Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Select either or both options for question 2 depending on the facts at issue.
If specificity is not required, users do not have to itemize all the damages listed in
question 6 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances. For instructions on punitive damages, see
instructions in the Damages series (CACI No. 3900 et seq.).
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
348
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
[Answer question 5.
5. What amount do you award as punitive damages?
$ ]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, December 2010; Renumbered from
CACI No. VF-3015 and Revised December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 3066, Bane Act—Essential Factual
Elements.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Give the first option for elements 1 and 2 if the defendant has threatened violence.
350
351
354
355
New September 2003; Revised June 2005, October 2008, April 2009, June 2010,
December 2013, June 2014
Directions for Use
This instruction may be given in cases brought under the Elder Abuse and
Dependent Adult Civil Protection Act by the victim of elder financial abuse, or by
the survivors of the victim. If the victim is the plaintiff and is seeking damages for
pain and suffering, see CACI No. 3905A, Physical Pain, Mental Suffering, and
Emotional Distress (Noneconomic Damage) in the Damages series. Plaintiffs who
are suing for their decedent’s pain and suffering should also use CACI No. 3101,
Financial Abuse—Decedent’s Pain and Suffering.
If the individual responsible for the financial abuse is a defendant in the case, use
“[name of individual defendant]” throughout. If only the individual’s employer is a
defendant, use “[name of employer defendant]’s employee” throughout.
To recover compensatory damages, attorney fees, and costs against the employer
under a theory of vicarious liability, see instructions in the Vicarious Responsibility
series (CACI No. 3700 et seq.).
If “for a wrongful use” is selected in element 3, give the next-to-last optional
paragraph on appropriate facts. This is not the exclusive manner of proving
wrongful conduct under the statute. (See Welf. & Inst. Code, § 15610.30(b).)
If “by undue influence” is selected in element 3, also give CACI No. 3117,
Financial Abuse—“Undue Influence” Explained.
Include the last optional paragraph if the elder was deprived of a property right by
an agreement, donative transfer, or testamentary bequest. (See Welf. & Inst. Code,
§ 15610.30(c).)
The instructions in this series are not intended to cover every circumstance in
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• Abuse of Elder or Dependent Adult. Welfare and Institutions Code section
15610.07.
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “Financial Abuse” Defined. Welfare and Institutions Code section 15610.30.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “The Legislature enacted the Act to protect elders by providing enhanced
remedies to encourage private, civil enforcement of laws against elder abuse
and neglect. An elder is defined as ‘any person residing in this state, 65 years of
356
age or older.’ The proscribed conduct includes financial abuse. The financial
abuse provisions are, in part, premised on the Legislature’s belief that in
addition to being subject to the general rules of contract, financial agreements
entered into by elders should be subject to special scrutiny.” (Bounds v.
Superior Court (2014) 229 Cal.App.4th 468, 478 [177 Cal.Rptr.3d 320], internal
citations omitted.)
• “The probate court cited Welfare and Institutions Code section 15610.30 to
impose financial elder abuse liability as to plaintiffs’ first cause of action for
fiduciary abuse of an elder. This liability is supported by the court’s findings
that ‘[decedent] did not know the extent of [defendant’s] spending,’ and that
‘[w]hile it is not uncommon for a spouse to spend money or purchase items of
which the other is unaware, and the line between such conduct and financial
abuse is not always clear, what [defendant] did in this case went well beyond
the line of reasonable conduct and constituted financial abuse,’ and the court’s
further conclusion that much of defendant’s credit card spending and writing
herself checks from decedent’s bank account during the marriage amounted to
financial abuse.” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1356 [167
Cal.Rptr.3d 50].)
• “[T]he Legislature enacted the Act, including the provision prohibiting a taking
by undue influence, to protect elderly individuals with limited or declining
cognitive abilities from overreaching conduct that resulted in a deprivation of
their property rights. To require the victim of financial elder abuse to wait to
file suit until an agreement obtained through the statutorily proscribed conduct
has been performed would not further that goal.” (Bounds, supra, 229
Cal.App.4th at p. 481.)
• “When the [operable pleading] was filed, former section 15610.30, subdivision
(a)(3) referred to the definition of undue influence found in Civil Code section
1575. However, in 2013, the Legislature amended section 15610.30, subdivision
(a)(3) to refer, instead, to a broader definition of undue influence found in the
newly enacted section 15610.70.” (Bounds, supra, 229 Cal.App.4th at p. 479.)
• “[A] party may engage in elder abuse by misappropriating funds to which an
elder is entitled under a contract.” (Paslay v. State Farm General Ins. Co.
(2016) 248 Cal.App.4th 639, 656 [203 Cal.Rptr.3d 785].)
• “[U]nder subdivision (b) of section 15610.30, wrongful conduct occurs only
when the party who violates the contract actually knows that it is engaging in a
harmful breach, or reasonably should be aware of the harmful breach.” (Paslay,
supra, 248 Cal.App.4th at p. 658.)
• “The text of section 15610.30 is broad. It speaks not only of ‘taking’ real or
personal property, but also ‘secreting, appropriating, obtaining, or retaining’
such property, and then, to capture the sense of all of these terms, goes on to
use the more expansive term ‘deprive[].’ Some of the terms used in section
15610.30 are narrower than others; to ‘secret,’ for example, suggests hiding or
concealment, and to ‘retain’ or to ‘obtain’ suggests affirmatively acquiring
357
358
New September 2003; Revised June 2005, October 2008, April 2009
Directions for Use
Give this instruction along with CACI No. 3100, Financial Abuse—Essential
Factual Elements, if the plaintiff seeks survival damages for pain and suffering in
addition to conventional tort damages and attorney fees and costs. (See Welf. &
Inst. Code, § 15657.5.) Although one would not normally expect that financial
abuse alone would lead to a wrongful death action, the Legislature has provided
this remedy should the situation arise.
If the individual responsible for the neglect is a defendant in the case, use “[name
of individual defendant].” If only the individual’s employer is a defendant, use
“[name of employer defendant]’s employee.”
The instructions in this series are not intended to cover every circumstance in
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Financial Abuse. Welfare and Institutions Code section
15657.5.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty of
something more than negligence; he or she must show reckless, oppressive,
fraudulent, or malicious conduct. The latter three categories involve
‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’
nature. ‘Recklessness’ refers to a subjective state of culpability greater than
simple negligence, which has been described as a ‘deliberate disregard’ of the
‘high degree of probability’ that an injury will occur. Recklessness, unlike
negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a
359
failure to take precautions’ but rather rises to the level of a ‘conscious choice of
a course of action . . . with knowledge of the serious danger to others involved
in it.’ ” (Delaney, supra, 20 Cal.4th at pp. 31–32, internal citations omitted.)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and
allows survivors to recover pain and suffering damages in cases of intentional
and reckless abuse where the elder has died.” (Mack v. Soung (2000) 80
Cal.App.4th 966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds
in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202
Cal.Rptr.3d 447, 370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence
recklessness, oppression, fraud, or malice in the commission of elder abuse.
Even then, those damages would be subject to the $250,000 cap placed by Civil
Code section 3333.2, subdivision (b) for noneconomic damages against a health
care provider. In this limited circumstance, the decedent’s right to pain and
suffering damages would not die with him or her; the damages would be
recoverable by a survivor.” (ARA Living Centers—Pacific, Inc. v. Superior
Court (1993) 18 Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 8:5–8:7, 8:15 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.23, 6.30–6.34, 6.45–6.47
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
360
Derived from former CACI No. 3102 October 2008; Revised April 2009
Directions for Use
This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107
(physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the
enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain
and suffering against an employer and the employee is also a defendant. (See Civ.
Code, § 3294(b) Welf. & Inst. Code, §§ 15657(c), 15657.05.) If the employer is the
only defendant, give CACI No. 3102B, Employer Liability for Enhanced
Remedies—Employer Defendant Only. The requirements of Civil Code section
3294(b) need not be met in order to obtain enhanced remedies from an employer
361
363
Derived from former CACI No. 3102 October 2008; Revised April 2009
Directions for Use
This instruction should be given with CACI No. 3104 (neglect), CACI No. 3107
(physical abuse), or CACI No. 3110 (abduction) if the plaintiff is seeking the
enhanced remedies of attorney fees and costs and/or damages for a decedent’s pain
and suffering against an employer and the employee is not also a defendant. (See
Civ. Code, § 3294(b); Welf. & Inst. Code, §§ 15657(c), 15677.05.) If the employee
is also a defendant, give CACI No. 3102A, Employer Liability for Enhanced
Remedies—Both Individual and Employer Defendants. The requirements of Civil
Code section 3294(b) need not be met in order to obtain enhanced remedies from
364
an employer for financial abuse. (See Welf. & Inst. Code, § 15657.5(c).)
Sources and Authority
• Enhanced Remedies for Physical Abuse or Neglect. Welfare and Institutions
Code section 15657.
• Enhanced Remedies Against Employer for Acts of Employee. Welfare and
Institutions Code section 15657.5(c).
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• Punitive Damages Against Employer. Civil Code section 3294(b).
• “[A] finding of ratification of [agent’s] actions by [employer], and any other
findings made under Civil Code section 3294, subdivision (b), must be made by
clear and convincing evidence.” (Barton v. Alexander Hamilton Life Ins. Co. of
America (2003) 110 Cal.App.4th 1640, 1644 [3 Cal.Rptr.3d 258].)
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and
allows survivors to recover pain and suffering damages in cases of intentional
and reckless abuse where the elder has died.” (Mack v. Soung (2000) 80
Cal.App.4th 966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds
in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202
Cal.Rptr.3d 447, 370 P.3d 1011], internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:67, 10:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 6.41–6.44
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
365
New September 2003; Revised December 2005, June 2006, October 2008, January
2017
366
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for
neglect by clear and convincing evidence, and must also prove by clear
and convincing evidence that [[name of individual defendant]/[name of
employer defendant]’s employee] acted with
[recklessness/oppression/fraud/ [or] malice] in neglecting [name of
plaintiff/decedent].
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
or her own basic needs; and (3) denied or withheld goods or services necessary
to meet the elder or dependent adult’s basic needs, either with knowledge that
injury was substantially certain to befall the elder or dependent adult (if the
plaintiff alleges oppression, fraud or malice) or with conscious disregard of the
high probability of such injury (if the plaintiff alleges recklessness). The
plaintiff must also allege (and ultimately prove by clear and convincing
evidence) that the neglect caused the elder or dependent adult to suffer physical
harm, pain or mental suffering.” (Carter v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 406–407 [129 Cal.Rptr.3d 895], internal
citations omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as
all elements of liability, must be proved by clear and convincing evidence for
purposes of an award of attorney fees.” (Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 664 [77 Cal.Rptr.3d 743].)
• “We reject plaintiffs’ argument that a violation of the Act does not constitute an
independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict
establishing causation—one element of liability—by clear and convincing
evidence, precludes an award of attorney fees.” (Perlin, supra, 163 Cal.App.4th
at p. 666.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:9, 9:11.1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) § 2.72
3 Levy et al., California Torts, Ch. 31 Liability of Physicians and Other Medical
Practitioners, § 31.50[4][d] (Matthew Bender)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.35 (Matthew Bender)
3105. Reserved for Future Use
372
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.
• “Physical Abuse” Defined. Welfare and Institutions Code section 15610.63.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 1:1, 9:1, 19:1 (The
Rutter Group)
California Elder Law Litigation (Cont.Ed.Bar 2003) §§ 2.69, 2.71
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,
§ 5.33[2] (Matthew Bender)
374
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for the
physical abuse by clear and convincing evidence, and must also prove
by clear and convincing evidence that [[name of individual defendant]/
[name of employer defendant]’s employee] acted with
[recklessness/oppression/fraud/ [or] malice] in physically abusing [name
of plaintiff].
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
377
give either CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only. To recover damages against the
employer under a theory of vicarious liability, see instructions in the Vicarious
Responsibility series (CACI No. 3700 et seq.).
The instructions in this series are not intended to cover every circumstance under
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• “Abduction” Defined. Welfare and Institutions Code section 15610.06.
• “Elder Abuse” Defined. Welfare and Institutions Code section 15610.07
provides:
• “Dependent Adult” Defined. Welfare and Institutions Code section 15610.23.
• “Elder” Defined. Welfare and Institutions Code section 15610.27.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and
allows survivors to recover pain and suffering damages in cases of intentional
and reckless abuse where the elder has died.” (Mack v. Soung (2000) 80
Cal.App.4th 966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds
in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202
Cal.Rptr.3d 447, 370 P.3d 1011], internal citations omitted.)
• “The effect of the 1991 amendment to the elder abuse law was to . . . permit a
decedent’s personal representative or successor to recover pain and suffering
damages when plaintiff can prove by clear and convincing evidence
recklessness, oppression, fraud, or malice in the commission of elder abuse.
Even then, those damages would be subject to the $250,000 cap placed by Civil
Code section 3333.2, subdivision (b) for noneconomic damages against a health
care provider. In this limited circumstance, the decedent’s right to pain and
suffering damages would not die with him or her; the damages would be
recoverable by a survivor.” (ARA Living Centers—Pacific, Inc. v. Superior
Court (1993) 18 Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 7:1, 7:3 (The Rutter
Group)
379
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elders,
§ 5.33[5] (Matthew Bender)
380
[Name of plaintiff] also seeks to recover [attorney fees and costs/ [and]
damages for [name of decedent]’s pain and suffering]. To recover these
remedies, [name of plaintiff] must prove all of the requirements for the
abduction by clear and convincing evidence.
[If [name of plaintiff] proves the above, I will decide the amount of
attorney fees and costs.]
New September 2003; Revised December 2005, April 2008, October 2008
Directions for Use
Give this instruction along with CACI No. 3109, Abduction—Essential Factual
Elements, if the plaintiff seeks the enhanced remedies of attorney fees and costs
and/or damages for the decedent’s predeath pain and suffering. (See Welf. & Inst.
Code, § 15657.05.)
If the plaintiff is seeking enhanced remedies against the individual’s employer, also
give CACI No. 3102A, Employer Liability for Enhanced Remedies—Both
Individual and Employer Defendants, or CACI No. 3102B, Employer Liability for
Enhanced Remedies—Employer Defendant Only.
The instructions in this series are not intended to cover every circumstance in
which a plaintiff may bring a cause of action under the Elder Abuse and Dependent
Adult Civil Protection Act.
Sources and Authority
• Enhanced Remedies for Abduction. Welfare and Institutions Code section
15657.05.
• “The purpose of the [Elder Abuse Act] is essentially to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82
Cal.Rptr.2d 610, 971 P.2d 986].)
• “As amended in 1991, the Elder Abuse Act was designed to protect elderly and
dependent persons from abuse, neglect, or abandonment. In addition to adopting
measures designed to encourage reporting of abuse and neglect, the Act
authorizes the court to award attorney fees to the prevailing plaintiffs and
allows survivors to recover pain and suffering damages in cases of intentional
and reckless abuse where the elder has died.” (Mack v. Soung (2000) 80
Cal.App.4th 966, 971–972 [95 Cal.Rptr.2d 830], disapproved on other grounds
in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 164 [202
Cal.Rptr.3d 447, 370 P.3d 1011], internal citations omitted.)
• “ ‘Liability’ under section 15657 includes as an element ‘causation,’ which, as
381
all elements of liability, must be proved by clear and convincing evidence for
purposes of an award of attorney fees.” (Perlin v. Fountain View Management,
Inc. (2008) 163 Cal.App.4th 657, 664 [77 Cal.Rptr.3d 743].)
• “We reject plaintiffs’ argument that a violation of the Act does not constitute an
independent cause of action. Accordingly, plaintiffs’ failure to obtain a verdict
establishing causation—one element of liability—by clear and convincing
evidence, precludes an award of attorney fees.” (Perlin, supra, 163 Cal.App.4th
at p. 666.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1686–1688
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 7:1-7:3 (The Rutter
Group)
3111. Reserved for Future Use
382
383
conduct creates an unreasonable risk of physical harm to another, but also that
such risk is substantially greater than that which is necessary to make his
conduct negligent.”
Secondary Sources
Balisok, Civil Litigation Series: Elder Abuse Litigation, §§ 9:1, 9:33, 9:33.1 (The
Rutter Group)
1 California Forms of Pleading and Practice, Ch. 5, Abuse of Minors and Elderly,
§ 5.33[1] (Matthew Bender)
385
386
387
388
389
390
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, April 2007, April 2008, October 2008,
April 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3100, Financial Abuse—Essential Factual
Elements, and CACI No. 3101, Financial Abuse—Decedent’s Pain and Suffering.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant assisted in the wrongful conduct, modify
question 1 as in element 2 of CACI No. 3100.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
392
393
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, April 2007, April 2008, October 2008,
April 2009, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3100, Financial Abuse—Essential Factual
Elements, and CACI No. 3101, Financial Abuse—Decedent’s Pain and Suffering.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff alleges that the defendant’s employees assisted in the wrongful
conduct, modify question 1 as in element 1 of CACI No. 3100.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
395
396
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
5. TOTAL $
[6. Did [name of plaintiff] prove by clear and convincing evidence
that an officer, a director, or a managing agent of [name of
employer defendant] had advance knowledge of the unfitness of
[name of employee defendant] and employed [him/her] with a
knowing disregard of the rights or safety of others?
[6. Yes No]
[7. Did [name of plaintiff] prove 1 through 4 above by clear and
convincing evidence and also prove by clear and convincing
evidence that [name of employee defendant] acted with
[recklessness/malice/oppression/ [or] fraud]?
[7. Yes No]
[7. [If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What were [name of decedent]’s damages for noneconomic loss
for pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
398
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016, November 2017
Directions for Use
This verdict form is based on CACI No. 3103, Neglect—Essential Factual
Elements, CACI No. 3104, Neglect—Enhanced Remedies Sought, and CACI No.
3102A, Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be modified to correspond to the alleged wrongful conduct as in
element 3 of CACI No. 3103.
Optional questions 6, 7, and 8 address enhanced remedies. If the neglect is proved
by clear and convincing evidence, and it is also proved by clear and convincing
evidence that the individual defendant acted with recklessness, malice, oppression,
or fraud, attorney fees, costs, and a decedent’s predeath pain and suffering may be
recovered. (See Welf. & Inst. Code, § 15657.) If any of these remedies are sought
against the employer, include question 6. (See Welf. & Inst. Code, § 15657(c).)
Question 6 may be altered to correspond to one of the alternative bracketed options
for employer liability in CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 7. If the neglect led to the elder’s death, in question 5 include
only item 5a for past economic loss. But also include the transitional language after
question 7 and include question 8.
In the transitional language after question 4, direct the jury to answer questions 6
or 7 or both, depending on which questions are to be included. If question 7 is to
be included but question 6 is not, then 7 will be renumbered as 6.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
399
findings that are required in order to calculate the amount of prejudgment interest.
400
Signed:
Presiding Juror
402
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3103, Neglect—Essential Factual
Elements, CACI No. 3104, Neglect—Enhanced Remedies Sought, and CACI No.
3102B, Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be modified to correspond to the alleged wrongful conduct as in
element 3 of CACI No. 3103.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 6 and 7 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657; Code Civ.
Proc., § 377.34.) Question 6 may be altered to correspond to one of the alternative
bracketed options in CACI No. 3102B.
If the neglect led to the elder’s death, in question 5 include only item 5a for past
economic loss. But also include the transitional language after question 7 and
include question 8.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
403
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
4. TOTAL $
[5. Did [name of plaintiff] prove by clear and convincing evidence
that an officer, a director, or a managing agent of [name of
employer defendant] had advance knowledge of the unfitness of
[name of employee defendant] and employed [him/her] with a
knowing disregard of the rights or safety of others?
[5. Yes No]
[6. Did [name of plaintiff] prove 1 through 3 above by clear and
convincing evidence and also prove by clear and convincing
evidence that [name of employee defendant] acted with
[recklessness/malice/oppression/ [or] fraud]?
[6. Yes No]
[6. [If your answer to question 6 is yes, then answer question 7. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
7. What were [name of decedent]’s damages for noneconomic loss
for pain, suffering, or disfigurement incurred before death?
]
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3106, Physical Abuse—Essential Factual
405
Elements, CACI No. 3107, Physical Abuse—Enhanced Remedies Sought, and CACI
No. 3102A, Employer Liability for Enhanced Remedies—Both Individual and
Employer Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If specificity is not required, users do not have to itemize all the damages listed in
question 4 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Optional questions 5, 6, and 7 address enhanced remedies. If the physical abuse is
proved by clear and convincing evidence, and it is also proved by clear and
convincing evidence that the individual defendant acted with recklessness, malice,
oppression, or fraud, attorney fees, costs, and a decedent’s predeath pain and
suffering may be recovered. (See Welf. & Inst. Code, § 15657.) If any of these
remedies are sought against the employer, include question 5. (See Welf. & Inst.
Code, § 15657(c).) Question 5 may be altered to correspond to one of the
alternative bracketed options for employer liability in CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 6. If the physical abuse led to the neglected elder’s death, in
question 4 include only item 4a for past economic loss. But also include the
transitional language after question 6 and include question 7.
In the transitional language after question 3, direct the jury to answer questions 5
or 6 or both, depending on which questions are to be included. If question 6 is to
be included but question 5 is not, then 6 will be renumbered as 5.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
406
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
408
409
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
411
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3109, Abduction—Essential Factual
Elements, CACI No. 3110, Abduction—Enhanced Remedies Sought, and CACI No.
3102A, Employer Liability for Enhanced Remedies—Both Individual and Employer
Defendants.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be altered to correspond to the alternative bracketed option in
element 3 of CACI No. 3109.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Optional questions 6, 7, and 8 address enhanced remedies. If the abduction is
proved by clear and convincing evidence, attorney fees, costs, and a decedent’s
predeath pain and suffering may be recovered. (See Welf. & Inst. Code,
§ 15657.05.) If any of these remedies are sought against the employer, include
question 6. (See Welf. & Inst. Code, § 15657.05(c).) Question 6 may be altered to
correspond to one of the alternative bracketed options for employer liability in
CACI No. 3102A.
If any enhanced remedies are sought against either the individual or the employer,
include question 7. If the abduction led to the abductee’s death, in question 5
include only item 5a for past economic loss. But also include the transitional
language after question 7 and include question 8.
In the transitional language after question 4, direct the jury to answer questions 6,
7, or both, depending on which questions are to be included. If question 7 is to be
included but question 6 is not, then 7 will be renumbered as 6.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
412
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
414
New September 2003; Revised April 2007, April 2008, October 2008, December
2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3109, Abduction—Essential Factual
Elements, CACI No. 3110, Abduction—Enhanced Remedies Sought, and CACI No.
3102B, Employer Liability for Enhanced Remedies—Employer Defendant Only.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Question 3 can be altered to correspond to the alternative bracketed option in
element 3 of CACI No. 3109.
If specificity is not required, users do not have to itemize all the damages listed in
question 5 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
Questions 6 and 7 are required to obtain employer liability for enhanced remedies,
including attorney fees and costs. (See Welf. & Inst. Code, § 15657.05(b); Code
Civ. Proc., § 377.34.) Question 6 may be altered to correspond to one of the
alternative bracketed options in CACI No. 3102B.
If the abduction led to the abductee’s death, in question 5 include only item 5a for
past economic loss. But also include the transitional language after question 7 and
include question 8.
If punitive damages are sought, incorporate language from a verdict form for
punitive damages. (See CACI Nos. VF-3900–VF-3904.)
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3108–VF-3199. Reserved for Future Use
415
416
418
419
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.
420
restitution; and sets forth rules for offsetting the amount attributed to the
consumer’s use of the motor vehicle. These ‘Lemon Law’ provisions clearly
provide greater consumer protections to those who purchase new motor vehicles
than are afforded under the general provisions of the Act to those who purchase
other consumer goods under warranty.” (National R.V., Inc., supra, 34
Cal.App.4th at p.1079, internal citations and footnotes omitted.)
• The act does not require a consumer to give a manufacturer, in addition to its
local representative, at least one opportunity to fix a problem. Regarding
previous repair efforts entitling an automobile buyer to reimbursement, “[t]he
legislative history of [Civil Code section 1793.2] demonstrates beyond any
question that . . . a differentiation between manufacturer and local
representative is unwarranted.” (Ibrahim v. Ford Motor Co. (1989) 214
Cal.App.3d 878, 888 [263 Cal.Rptr. 64].)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 52, 56, 314–324
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)
5 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)
422
423
New September 2003; Revised February 2005, December 2005, April 2007,
December 2007, December 2011
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 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 [new motor vehicle] had a defect covered by
the warranty;
See also CACI No. 1243, Notification/Reasonable Time.
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.
Include the bracketed sentence preceding the final bracketed paragraph if
appropriate to the facts. 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 a motor vehicle.
See also CACI No. 3202, “Repair Opportunities” Explained, CACI No. 3203,
Reasonable Number of Repair Opportunities—Rebuttable Presumption, and CACI
No. 3204, “Substantially Impaired” Explained.
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• Extension of Warranty Period. Civil Code section 1793.1(a)(2).
• Song-Beverly Does Not Preempt Commercial Code. Civil Code section 1790.3.
• “Express Warranty” Defined. Civil Code section 1791.2.
• Express Warranty Made by Someone Other Than Manufacturer. Civil Code
section 1795.
• “New Motor Vehicle” Defined. Civil Code section 1793.22(e)(2).
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d)(2).
• Buyer’s Delivery of Nonconforming Goods. Civil Code section 1793.2(c).
424
expired does not necessarily mean the defect did not exist when the product
was purchased. Postwarranty repair evidence may be admitted on a case-by-case
basis where it is relevant to showing the vehicle was not repaired to conform to
the warranty during the warranty’s existence.” (Donlen, supra, 217 Cal.App.4th
at p. 149, internal citations omitted.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 52, 56, 314–324
1 California UCC Sales and Leases (Cont.Ed.Bar) Warranties, §§ 7.4, 7.8, 7.15,
7.87; id., Prelitigation Remedies, § 13.68; id., Litigation Remedies, § 14.25, id.,
Division 10: Leasing of Goods, § 17.31
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, § 206.104 (Matthew Bender)
5 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)
427
Each time the [consumer good/new motor vehicle] was given to [name of
defendant] [or its authorized repair facility] for repair counts as an
opportunity to repair, even if [it/they] did not do any repair work.
In determining whether [name of defendant] had a reasonable number of
opportunities to fix the [consumer good/new motor vehicle], you should
consider all the circumstances surrounding each repair visit. [Name of
defendant] [or its authorized repair facility] must have been given at
least two opportunities to fix the [consumer good/new motor vehicle]
[unless only one repair attempt was possible because the [consumer
good/new motor vehicle] was later destroyed or because [name of
defendant] [or its authorized repair facility] refused to attempt the
repair].
New September 2003; Revised February 2005, December 2005, June 2006
Directions for Use
This instruction applies only to claims under Civil Code section 1793.2(d) and not
to other claims, such as claims for breach of the implied warranty of
merchantability. (See Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402,
406–407 [7 Cal.Rptr.3d 546].)
The final bracketed portion of the last sentence of this instruction is intended for
use only in cases where the evidence shows that only one repair attempt was
possible because of the subsequent malfunction and destruction of the vehicle or
where the defendant refused to attempt the repair. (See Bishop v. Hyundai Motor
America (1996) 44 Cal.App.4th 750 [52 Cal.Rptr.2d 134]; Gomez v. Volkswagen of
America, Inc. (1985) 169 Cal.App.3d 921 [215 Cal.Rptr. 507].)
Sources and Authority
• Replacement or Reimbursement After Reasonable Number of Repair Attempts.
Civil Code section 1793.2(d).
• “[T]he only affirmative step the Act imposes on consumers is to ‘permit[] the
manufacturer a reasonable opportunity to repair the vehicle.’ Whether or not the
manufacturer’s agents choose to take advantage of the opportunity, or are
unable despite that opportunity to isolate and make an effort to repair the
problem, are matters for which the consumer is not responsible.” (Oregel v.
American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103–1104 [109
Cal.Rptr.2d 583], internal citation omitted.)
• “Section 1793.2(d) requires the manufacturer to afford the specified remedies of
restitution or replacement if that manufacturer is unable to repair the vehicle
‘after a reasonable number of attempts.’ ‘Attempts’ is plural. The statute does
428
429
431
433
Delay caused by conditions beyond the control of the defendant extends the 30-day
requirement. (Civ. Code, § 1793.2(b).) It would most likely be the defendant’s
burden to prove that conditions beyond its control caused the delay.
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• Repairs to Start Within Reasonable Time. Civil Code section 1793.2(b).
• “[T]he fifth cause of action in each complaint clearly stated a cause of action
under Civil Code section 1794 . . . . Plaintiff had pleaded that he was such a
buyer who was injured by a ‘willful’ violation of Civil Code section 1793.2,
subdivision (b) which in pertinent part requires that with respect to consumer
goods sold in this state for which the manufacturer has made an express
warranty and service and repair facilities are maintained in this state
(undisputed herein) and ‘repair of the goods is necessary because they do not
conform with the applicable express warranties, service and repair shall be
commenced within a reasonable time by the manufacturer or its
representative.’ ” (Gomez v. Volkswagen of Am. (1985) 169 Cal.App.3d 921, 925
[215 Cal.Rptr. 507], footnote omitted.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 317 et seq.
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions
Involving Defects and Repairs, § 91.14 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.103 (Matthew Bender)
30 California Legal Forms, Ch. 92, Service Contracts, § 92.52 (Matthew Bender)
435
New September 2003; Revised June 2011; Renumbered from CACI No. 3230 June
2012
Directions for Use
Use the first bracketed option in element 2 if the defendant is the manufacturer.
Otherwise, use the second option.
This instruction is based on the disclosure and warranty obligations set forth in
Civil Code section 1793.22(f). The instruction may be modified for use with claims
involving the additional disclosure obligations set forth in California’s Automotive
Consumer Notification Act. (Civ. Code, §§ 1793.23, 1793.24.)
Sources and Authority
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
436
437
[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
438
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 [228 Cal.Rptr.3d
699] [citing this instruction], internal citations omitted.)
• “[T]he buyer of consumer goods must plead he or she was injured or damaged
439
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
5 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)
5 California Civil Practice Business Litigation, §§ 53:5–53:7 (Thomson Reuters)
441
(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 of consumer goods—see Civil Code sections 1791(g)–(i) and 1795.4. This
instruction may be modified for use in cases involving the implied warranty of
fitness in a lease of consumer goods.
Sources and Authority
• “Implied Warranty of Fitness” Defined. Civil Code section 1791.1(b).
• Remedies for Breach of Warranty of Fitness. Civil Code section 1791.1(d).
• Waiver of Warranty of Fitness. Civil Code section 1792.3.
• Song-Beverly Consumer Warranty Act: Right of Action. Civil Code section
1794(a).
• Measure of Damages. Civil Code section 1794(b).
• Manufacturer’s Implied Warranty of Fitness. Civil Code section 1792.1.
• Retailer’s or Distributor’s Implied Warranty of Fitness. Civil Code section
1792.2(a).
• Damages for Nonconforming Goods. California Uniform Commercial Code
section 2714(1).
• Damages for Breach of Warranty. California Uniform Commercial Code section
2714(2).
• “The Consumer Warranty Act makes . . . an implied warranty [of fitness for a
particular purpose] applicable to retailers, distributors, and manufacturers . . . .
An implied warranty of fitness for a particular purpose arises only where (1) the
purchaser at the time of contracting intends to use the goods for a particular
purpose, (2) the seller at the time of contracting has reason to know of this
particular purpose, (3) the buyer relies on the seller’s skill or judgment to select
or furnish goods suitable for the particular purpose, and (4) the seller at the
time of contracting has reason to know that the buyer is relying on such skill
and judgment.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 25 [220
Cal.Rptr. 392], internal citations omitted.)
• “ ‘A “particular purpose” differs from the ordinary purpose for which the goods
are used in that it envisages a specific use by the buyer which is peculiar to the
nature of his business whereas the ordinary purposes for which goods are used
are those envisaged in the concept of merchantability and go to uses which are
customarily made of the goods in question.’ ” (American Suzuki Motor Corp. v.
Superior Court (1995) 37 Cal.App.4th 1291, 1295, fn. 2 [44 Cal.Rptr.2d 526],
internal citation omitted.)
• “The reliance elements are important to the consideration of whether an implied
warranty of fitness for a particular purpose exists . . . . The major question in
determining the existence of an implied warranty of fitness for a particular
443
purpose is the reliance by the buyer upon the skill and judgment of the seller to
select an article suitable for his needs.” (Keith, supra, 173 Cal.App.3d at p. 25,
internal citations omitted.)
• “The question of reimbursement or replacement is relevant only under [Civil
Code] section 1793.2 . . . . [T]his section applies only when goods cannot be
made to conform to the ‘applicable express warranties.’ It has no relevance to
the implied warranty of merchantability.” (Music Acceptance Corp. v. Lofing
(1995) 32 Cal.App.4th 610, 620 [39 Cal.Rptr.2d 159].)
• “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 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
5 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 73, 78
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, §§ 3.33–3.40
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][b] (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, § 206.64 et seq. (Matthew
Bender)
5 California Civil Practice: Business Litigation §§ 53:5–53:7 (Thomson Reuters)
444
An implied warranty is in effect for one year after the sale of the
[consumer good], unless a shorter period is stated in a writing that
comes with the [consumer good], provided that the shorter period is
reasonable. In no event will an implied warranty be in effect for less
than 60 days.
[The time period of an implied warranty is lengthened by the number
of days that the [consumer good] was made available by [name of
plaintiff] for repairs under the warranty, including any delays caused by
circumstances beyond [name of plaintiff]’s control].
446
447
[Name of defendant] claims that it did not breach any implied warranties
because the [consumer good] was sold on an “as is” or “with all faults”
basis. To succeed, [name of defendant] must prove both of the following:
1. That at the time of sale a clearly visible written notice was
attached to the [consumer good]; and
2. That the written notice, in clear and simple language, told the
buyer each of the following:
a. That the [consumer good] was being sold on an “as is” or
“with all faults” basis;
b. That the buyer accepted the entire risk of the quality and
performance of the [consumer good]; and
c. That if the [consumer good] were defective, the buyer would
be responsible for the cost of all necessary servicing or repair.
449
New June 2010; Renumbered from CACI No. 3213 June 2012
Directions for Use
Use this instruction to assert a limitation defense based on the four-year period of
California Uniform Commercial Code section 2725. (See Mexia v. Rinker Boat Co.,
Inc. (2009) 174 Cal.App.4th 1297, 1305 [95 Cal.Rptr.3d 285] [four-year statute of
Cal. U. Com. Code, § 2725 applies to warranty claims under the Song-Beverly
Consumer Warranty Act].)
A breach of warranty occurs when tender of delivery is made. (Cal. U. Com. Code,
§ 2725(2).) Include “tender of” if actual delivery was not made or if delivery was
made after tender. If whether a proper tender was made is at issue, the jury should
be instructed on the meaning of “tender.” (See Cal. U. Com. Code, § 2503.)
Under the statute, a breach of warranty occurs when tender of delivery is made
regardless of the aggrieved party’s knowledge of the breach—that is, there is no
delayed-discovery rule. However, if an express warranty explicitly extends to future
performance of the goods (for example, a warranty to repair defects for three years
or 30,000 miles) and discovery of the breach must await the time of the
performance, the cause of action accrues when the breach is or should have been
discovered. (Cal. U. Com. Code, § 2725(2).) In such a case, give the second option
in the second sentence. If delayed discovery is alleged, CACI No. 455, Statute of
Limitations—Delayed Discovery, may be adapted for use. (See Krieger v. Nick
Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215–220 [285 Cal.Rptr. 717].)
Under the California Uniform Commercial Code, by the original agreement the
parties may reduce the period of limitation to not less than one year but may not
extend it. (Cal. U. Com. Code, § 2725(1).) Presumably, this provision does not
apply to claims under the Song-Beverly Act. (See Civ. Code, §§ 1790.1 [buyer’s
waiver of rights under Song-Beverly Act is unenforceable], 1790.3 [in case of
conflict, provisions of Song-Beverly Act control over Cal. U. Com. Code].)
450
451
The fact that [name of plaintiff] continued to use the [consumer good/new
motor vehicle] after delivering it for repair does not waive [his/her] right
to demand replacement or reimbursement. Nor does it reduce the
amount of damages that you should award to [name of plaintiff] if you
find that [he/she] has proved [his/her] claim against [name of defendant].
• “Within the context of the California Uniform Commercial Code courts around
the country are in general agreement that reasonable continued use of motorized
vehicles does not, as a matter of law, prevent the buyer from asserting
rescission (or its U.Com.Code equivalent, revocation of acceptance). This
consensus is based upon the judicial recognition of practical
realities—purchasers of unsatisfactory vehicles may be compelled to continue
using them due to the financial burden to securing alternative means of
transport for a substantial period of time. The seller remains protected through a
recoupment right of setoff for the buyer’s use of the good beyond the time of
revoking acceptance.” (Ibrahim, supra, 214 Cal.App.3d at pp. 897–898, internal
citations omitted.)
• “Nothing in the language of either the Uniform Commercial Code or the Song-
Beverly Act suggests that abrogation of the common law principles relating to
continued use and waiver of a buyer’s right to rescind was intended. The former
expressly specifies that ‘the principles of law and equity . . . shall supplement
its provisions.’ (Cal. U. Com. Code, § 1103.) The legal principles governing
continued use quoted previously are thus still applicable, as are the rules
regulating the equitable right of setoff.” (Ibrahim, supra, 214 Cal.App.3d at p.
898, internal citations omitted.)
• “Since we reject [defendant]’s basic argument that a request for replacement or
refund under the Act constitutes rescission, we find no error in the trial court’s
refusal to instruct on waiver of right to rescind or on statutory offsets for
postrescission use.” (Jiagbogu, supra, 118 Cal.App.4th at p. 1242.)
• “[Civil Code] Section 1793.2, subdivision (d)(2)(C), and (d)(2)(A) and (B) to
which it refers, comprehensively addresses replacement and restitution; specified
predelivery offset; sales and use taxes; license, registration, or other fees; repair,
towing, and rental costs; and other incidental damages. None contains any
language authorizing an offset in any situation other than the one specified. This
omission of other offsets from a set of provisions that thoroughly cover other
relevant costs indicates legislative intent to exclude [post-delivery use] offsets.”
(Jiagbogu, supra, 118 Cal.App.4th at pp. 1243–1244.)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 198, 318
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions
Involving Defects and Repairs, § 91.18 (Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales, § 502.42 (Matthew
Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.102 et seq. (Matthew
Bender)
30 California Legal Forms: Transaction Guide, Ch. 92, Service Contracts, § 92.53
(Matthew Bender)
453
454
456
New September 2003; Revised February 2005, June 2005, December 2011, June
2012
Directions for Use
This instruction is intended for use with claims involving new motor vehicles under
the Song-Beverly Consumer Warranty Act. The remedy is replacement of the
vehicle or restitution. (Civ. Code, § 1793.2(d)(2).) For claims involving other
consumer goods, see CACI No. 3240, Reimbursement Damages—Consumer
Goods.
Incidental damages are recoverable as part of restitution. (Civ. Code,
§ 1793.2(d)(2)(B).) For an instruction on incidental damages, see CACI No. 3242,
457
paid finance charges, less any of the expenses expressly excluded by the
statute.” (Mitchell v. Blue Bird Body Co. (2000) 80 Cal.App.4th 32, 37 [95
Cal.Rptr.2d 81].)
• “[Defendant] argues that [plaintiff] would receive a windfall if he is not
required to pay for using the car after his buyback request. But to give
[defendant] an offset for that use would reward it for its delay in replacing the
car or refunding [plaintiff]’s money when it had complete control over the
length of that delay, and an affirmative statutory duty to replace or refund
promptly.” (Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235,
1244 [13 Cal.Rptr.3d 679].)
• “[T]he imposition of a requirement that [plaintiff] mitigate his damages so as to
avoid rental car expenses—after [defendant] had a duty to respond promptly to
[plaintiff]’s demand for restitution—would reward [defendant] for its delay in
refunding [plaintiff]’s money.” (Lukather v. General Motors, LLC (2010) 181
Cal.App.4th 1041, 1053 [104 Cal.Rptr.3d 853].)
Secondary Sources
4 Witkin, Summary of California Law (10th ed. 2005) Sales, §§ 321–324
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.90
8 California Forms of Pleading and Practice, Ch. 91, Automobiles: Actions
Involving Defects and Repairs, § 91.18 (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, §§ 206.127, 206.128 (Matthew
Bender)
5 California Civil Practice: Business Litigation § 53:26 (Thomson Reuters)
459
461
463
New September 2003; Revised February 2005, December 2005, December 2011,
May 2018, November 2018
Directions for Use
This instruction is intended for use when the plaintiff requests a civil penalty under
Civil Code section 1794(c). In the opening paragraph, set forth all claims for which
a civil penalty is sought.
An automobile buyer may also obtain a penalty of two times actual damages
without a showing of willfulness under some circumstances. (See Civ. Code,
§ 1794(e).) However, a buyer who recovers a civil penalty for a willful violation
may not also recover a second civil penalty for the same violation. (Civ. Code,
§ 1794(e)(5).) If the buyer seeks a penalty for either a willful or a nonwillful
violation in the alternative, the jury must be instructed on both remedies. (See
Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 11 [28 Cal.Rptr.2d
133].) A special instruction will be needed for the nonwillful violation. (See Suman
v. Superior Court (1995) 39 Cal.App.4th 1309, 1322 [46 Cal.Rptr.2d 507] (Suman
II) [setting forth instructions to be given on retrial].)
Depending on the nature of the claim at issue, factors that the jury may consider in
determining willfulness may be added. (See, e.g., Jensen v. BMW of North
America, Inc. (1995) 35 Cal.App.4th 112, 136 [41 Cal.Rptr.2d 295] [among factors
to be considered by the jury are whether (1) the manufacturer knew the vehicle had
not been repaired within a reasonable period or after a reasonable number of
464
attempts, and (2) whether the manufacturer had a written policy on the requirement
to repair or replace].)
Sources and Authority
• Civil Penalty for Willful Violation. Civil Code section 1794(c).
• “[I]f the trier of fact finds the defendant willfully violated its legal obligations
to plaintiff, it has discretion under [Civil Code section 1794,] subdivision (c) to
award a penalty against the defendant. Subdivision (c) applies to suits
concerning any type of ‘consumer goods,’ as that term is defined in section
1791 of the Act.” (Suman v. Superior Court (1995) 39 Cal.App.4th 1309, 1315
[46 Cal.Rptr.2d 507].)
• “Whether a manufacturer willfully violated its obligation to repair the car or
refund the purchase price is a factual question for the jury that will not be
disturbed on appeal if supported by substantial evidence.” (Oregel v. American
Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104 [109 Cal.Rptr.2d 583].
• “ ‘In civil cases, the word “willful,” as ordinarily used in courts of law, does
not necessarily imply anything blamable, 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.’ ” (Ibrahim v. Ford Motor Co. (1989) 214
Cal.App.3d 878, 894 [263 Cal.Rptr. 64], internal citations omitted.)
• “In regard to the willful requirement of Civil Code section 1794, subdivision
(c), a civil penalty may be awarded if the jury determines that the manufacturer
‘knew of its obligations but intentionally declined to fulfill them. There is no
requirement of blame, malice or moral delinquency. However, ‘. . . a violation
is not willful if the defendant’s failure to replace or refund was the result of a
good faith and reasonable belief the facts imposing the statutory obligation were
not present.’ ” (Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th
1242, 1249–1250 [40 Cal.Rptr.2d 576], original italics, internal citations
omitted; see also Bishop v. Hyundai Motor Am. (1996) 44 Cal.App.4th 750, 759
[52 Cal.Rptr.2d 134] [defendant agreed that jury was properly instructed that it
“acted ‘willfully’ if you determine that it knew of its obligations under the
Song-Beverly Act but intentionally declined to fulfill them”].)
• “[A] violation . . . is not willful if the defendant’s failure to replace or refund
was the result of a good faith and reasonable belief the facts imposing the
statutory obligation were not present. This might be the case, for example, if
the manufacturer reasonably believed the product did conform to the warranty,
or a reasonable number of repair attempts had not been made, or the buyer
desired further repair rather than replacement or refund. [¶] Our interpretation
of section 1794(c) is consistent with the general policy against imposing
forfeitures or penalties against parties for their good faith, reasonable actions.
Unlike a standard requiring the plaintiff to prove the defendant actually knew of
its obligation to refund or replace, which would allow manufacturers to escape
465
jury that subdivision (c)-type willfulness is the sole basis for awarding civil
penalties, the court ignored a special distinction made by the Legislature with
respect to the seller of new automobiles. In so doing, the court erred. The error
was prejudicial because it prevented the jurors from considering the specific
penalty provisions in subdivision (e) and awarding such penalties, in their
discretion, if they determined the evidence warranted such an award.” (Suman,
supra, 23 Cal.App.4th at p. 11.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Sales, §§ 321–324
1 California UCC Sales & Leases (Cont.Ed.Bar) Warranties, § 3.90
California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.30
(Matthew Bender)
44 California Forms of Pleading and Practice, Ch. 502, Sales: Warranties,
§ 502.53[1][b] (Matthew Bender)
20 California Points and Authorities, Ch. 206, Sales, § 206.129 (Matthew Bender)
5 California Civil Practice: Business Litigation § 53:32 (Thomson Reuters)
3245–3299. Reserved for Future Use
467
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, October 2008, December 2010,
December 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 3200, Failure to Repurchase or Replace
Consumer Good After Reasonable Number of Repair Opportunities—Essential
Factual Elements, and CACI No. 3240, Reimbursement Damages—Consumer
Goods.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff was unable to deliver the good, modify question 4 as in element 4 of
CACI No. 3200. See CACI No. VF-3201 for additional questions in the event the
plaintiff is claiming consequential damages. Question 7 can be used to account for
claimed incidental damages included under CACI No. 3242, Incidental Damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
469
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
470
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
471
472
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised June 2005, October 2008, December 2010,
December 2011, December 2016
Directions for Use
This verdict form is based on CACI No. 3200, Failure to Repurchase or Replace
Consumer Good After Reasonable Number of Repair Opportunities—Essential
Factual Elements, CACI No. 3220, Affırmative Defense—Unauthorized or
Unreasonable Use, and CACI No. 3240, Reimbursement Damages—Consumer
Goods.
474
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
If the plaintiff was unable to deliver the good, modify question 4 as in element 4 of
CACI No. 3200. See CACI No. VF-3201 for additional questions in the event the
plaintiff is claiming consequential damages. Question 8 can be used to account for
claimed incidental damages included under CACI No. 3242, Incidental Damages.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
475
7. Yes No
7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What amount, if any, do you impose as a penalty? [You may not
exceed two times the “TOTAL DAMAGES” that you entered in
question 6.] $
PENALTY: $
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New September 2003; Revised February 2005, June 2005, December 2005,
February 2007, December 2010
Directions for Use
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case. Items of damages that do
not apply to the facts of the case may be omitted.
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.
This verdict form is based on CACI No. 3201, Failure to Promptly Repurchase or
Replace New Motor Vehicle After Reasonable Number of Repair
Opportunities—Essential Factual Elements, CACI No. 3241, Restitution From
Manufacturer—New Motor Vehicle, and CACI No. 3244, Civil Penalty—Willful
Violation. See CACI No. VF-3201 for additional questions in the event the plaintiff
is claiming consequential damages.
If plaintiff was unable to deliver the vehicle, modify question 4 as in element 4 of
CACI No. 3201. In question number 6, users have the option of either allowing the
jury to calculate the deduction for value of use or asking the jury for the relevant
mileage number only. The bracketed sentence in question 8 is intended to be given
only if the jury has been asked to calculate the deduction for value of use.
478
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
480
Signed:
Presiding Juror
Dated:
481
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
482
Signed:
Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
483
New September 2003; Revised June 2005, December 2010, December 2016
Directions for Use
This verdict form is based on CACI No. 3206, Breach of Disclosure
Obligations—Essential Factual Elements. See CACI No. VF-3201 for additional
questions in the event the plaintiff is claiming consequential damages.
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 defendant is a manufacturer, substitute question 2 with a question modeled after
the first bracketed option in element 2. Depending on the facts, question 4 can be
modified to cover other grounds for breach of the warranty, as in elements 5 and 6
of CACI No. 3206. Make sure that the “yes” and “no” directions match
appropriately.
Omit question 4 if the plaintiff is not seeking consequential damages.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-3207–VF-3299. Reserved for Future Use
484