CACI No. 1820. Damages

Judicial Council of California Civil Jury Instructions (2024 edition)

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1820.Damages

If you decide that [name of plaintiff] has proved [his/her/nonbinary

pronoun/its] 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.”

The amount of damages must include an award for all harm that was

caused by [name of defendant], even if the particular harm could not have

been anticipated.

[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/

its] 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]:

1. [Mental suffering/anxiety/humiliation/emotional distress;]

2. [Harm to reputation and loss of standing in the community;]

3. [The commercial value of [name of plaintiff]’s name or likeness;]

4. [Insert other applicable item of damage.]

No fixed standard exists for deciding the amount of damages for [insert

item of mental or emotional distress]. You must use your judgment to

decide a reasonable amount based on the evidence and your common

sense.

[To recover for future [insert item of mental or emotional distress], [name

of plaintiff] must prove that [he/she/nonbinary pronoun] is reasonably

certain to suffer that harm.]

New September 2003

Directions for Use

This instruction is not intended for cases involving invasion of privacy by false

light. Damages for false light are similar to the damages available in defamation

(see CACI Nos. 1700 to 1705).

Item 2 will probably not be relevant in all cases. It will have particular application

to the aspect of this tort involving the publication of private facts. (See Diaz v.

Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 137 [188 Cal.Rptr. 762].)

Item 3 is intended only for cases involving violation of privacy by appropriation.

Sources and Authority

• Restatement Second of Torts, section 652H provides:

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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

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

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identity as an aspect of the right of publicity.” (Gionfriddo v. Major League

Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307], internal

citations omitted.)

• “What may have originated as a concern for the right to be left alone has

become a tool to control the commercial use and, thus, protect the economic

value of one’s name, voice, signature, photograph, or likeness.” (KNB

Enterprises v. Matthews (2000) 78 Cal.App.4th 362, 366 [92 Cal.Rptr.2d 713].)

• “The first type of appropriation is the right of publicity . . . which is ‘in essence

that the reaction of the public to name and likeness, which may be fortuitous or

which may be managed or planned, endows the name and likeness of the person

involved with commercially exploitable opportunities.’ The other is the

appropriation of the name and likeness that brings injury to the feelings, that

concerns one’s own peace of mind, and that is mental and subjective.” (Dora v.

Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 541-542 [18 Cal.Rptr.2d 790],

internal citations omitted.)

Secondary Sources

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, § 429.46 (Matthew

Bender)

CACI No. 1820 RIGHT OF PRIVACY

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Page last reviewed May 2024