CACI No. 1503. Affirmative Defense - Proceeding Initiated by Public Employee Within Scope of Employment (Gov. Code, § 821.6)
Judicial Council of California Civil Jury Instructions (2023 edition)
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1503.Affirmative Defense - Proceeding Initiated by Public
Employee Within Scope of Employment (Gov. Code, § 821.6)
[Name of public entity defendant] claims that it cannot be held responsible
for [name of plaintiff]’s harm, if any, because the [specify proceeding, e.g.,
civil action] was initiated by its employee who was acting within the
scope of [his/her/nonbinary pronoun] employment. To establish this
defense, [name of defendant] must prove that [name of employee] was
acting within the scope of [his/her/nonbinary pronoun] employment.
New September 2003; Renumbered from CACI No. 1506 June 2013; Revised May
2018
Directions for Use
Give this instruction if there is an issue of fact as to whether the proceeding giving
rise to the alleged malicious prosecution claim was initiated as a governmental
action. Government Code section 821.6 provides immunity from liability for
malicious prosecution for a public employee who is acting within the scope of
employment, even if the employee acts maliciously and without probable cause. If
the employee is immune, then there can be no vicarious liability on the entity. (Gov.
Code, § 815.2.) This immunity is not unqualified, however; it applies only if the
employee was acting within the scope of employment. (Tur v. City of Los Angeles
(1996) 51 Cal.App.4th 897, 904 [59 Cal.Rptr.2d 470].)
For an instruction on scope of employment, see CACI No. 3720, Scope of
Employment, in the Vicarious Responsibility series.
Sources and Authority
• Public Entity Vicarious Liability for Acts of Employee. Government Code
section 815.2.
• Public Employee Immunity. Government Code section 821.6.
• “The defendants did not enjoy an unqualified immunity from suit. Their
immunity would have depended on their proving by a preponderance of the
evidence [that] they were acting within the scope of their employment in doing
the acts alleged to constitute malicious prosecution.” (Tur,supra, 51 Cal.App.4th
at p. 904 [failure to instruct jury under section 821.6 was prejudicial error].)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 434 et seq.
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process,
§ 43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, § 357.23 (Matthew Bender)
939
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, § 147.31 (Matthew Bender)
CACI No. 1503 MALICIOUS PROSECUTION
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© Judicial Council of California.
