California Civil Jury Instructions (CACI) (2017)

1510. Affirmative Defense—Reliance on Counsel

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1510.Affirmative Defense—Reliance on Counsel
[Name of defendant] claims that [he/she] had reasonable grounds for
[causing or continuing the criminal proceeding/bringing or continuing a
[lawsuit/administrative proceeding]] because [he/she] was relying on the
advice of an attorney. To succeed, [name of defendant] must prove both
of the following:
1. That [name of defendant] made a full and honest disclosure of all
the important facts known to [him/her] to the [district attorney/
attorney]; and
2. That [he/she] reasonably relied on the [district
attorney/attorney]’s advice.
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
4Levy 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)
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