CACI No. 2422. Breach of Employment Contract - Specified Term - Damages
Judicial Council of California Civil Jury Instructions (2023 edition)
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2422.Breach of Employment Contract - Specified
Term - Damages
If you find that [name of defendant] [discharged/demoted] [name of
plaintiff] in breach of an employment contract for a specified term, then
you must decide the damages, if any, that [name of plaintiff] has proved
[he/she/nonbinary pronoun] is entitled to recover. To make that decision,
you must:
1. Decide the amount that [name of plaintiff] would have earned up
to today, including any benefits and pay increases; [and]
2. Add the present cash value of any future wages and benefits that
[he/she/nonbinary pronoun] would have earned up to the end of
the term of the contract; [and]
3. [Describe any other contract damages that were allegedly caused by
defendant’s conduct.]
[If you find that [name of plaintiff] would have exercised
[his/her/nonbinary pronoun] option to extend the term of the employment
contract, then you may consider the total term of [name of plaintiff]’s
employment contract to be [specify length of original contract term plus
option term].]
New September 2003
Directions for Use
Use CACI No. 3963, Affırmative Defense - Employee’s Duty to Mitigate Damages,
if the defendant seeks an offset for wages plaintiff could have earned from similar
employment.
Sources and Authority
• Damages for Breach of Contract. Civil Code section 3300.
• “Stated simply, the contract compensation for the unexpired period of the
contract affords a prima facie measure of damages; the actual measured damage,
however, is the contract amount reduced by compensation received during the
unexpired term; if, however, such other compensation has not been received, the
contract amount may still be reduced or eliminated by a showing that the
employee, by the exercise of reasonable diligence and effort, could have
procured comparable employment and thus mitigated the damages.” (Erler v.
Five Points Motors, Inc. (1967) 249 Cal.App.2d 560, 562 [57 Cal.Rptr. 516].)
• In appropriate circumstances, the court may authorize the trier of fact to
“consider the probability the employee would exercise the option in determining
the length of the unexpired term of employment when applying the applicable
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measure of damages . . . .” (Oldenkott v. American Electric, Inc. (1971) 14
Cal.App.3d 198, 204 [92 Cal.Rptr. 127].)
• “The trial court correctly found that defendants wrongfully terminated the
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., California Practice Guide: Employment Litigation, 17-B, Contract
Damages, ¶¶ 17:81, 17:95, 17:105, 17:495 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, 17-F, Mitigation of
Damages (Avoidable Consequences Doctrine), ¶ 17:495 (The Rutter Group)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
WRONGFUL TERMINATION CACI No. 2422
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© Judicial Council of California.
