California Civil Jury Instructions (CACI)
1506. Public Entities and Employees (Gov. Code, § 821.6)
[Name of defendant] claims that [he/she] cannot be held responsible for [name of plaintiff]’s harm, if any, because [he/she] was a public employee acting within the scope of [his/her] employment. To establish this defense, [name of defendant] must prove that [he/she] was acting within the scope of [his/her] employment.
Directions for Use
For an instruction on scope of employment, see CACI No. 3720, Scope of Employment, in the Vicarious Responsibility series.
Sources and Authority
- Government Code section 821.6 provides: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
- In Tur v. City of Los Angeles (1996) 51 Cal.App.4th 897, 904 [59 Cal.Rptr.2d 470], the court concluded that “the failure to instruct under section 821.6 was prejudicial error.” The court observed that “[d]efendants 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.” (Ibid.)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 368
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 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of Process (Matthew Bender)