California Civil Jury Instructions (CACI)

2407. Breach of Employment Contract - Unspecified Term— Employee's Duty to Mitigate Damages

[Name of defendant] claims that if [name of plaintiff] is entitled to any damages, they should be reduced by the amount that [he/ she] could have earned from other employment. To succeed, [name of defendant] must prove all of the following:

1. That employment substantially similar to [name of plaintiff]'s former job was available to [him/her];

2. That [name of plaintiff] failed to make reasonable efforts to seek [and retain] such employment; and

3. The amount that [name of plaintiff] could have earned from such employment.

In deciding whether the employment was substantially similar, you should consider, among other factors, whether:

(a) The nature of the work was different from [name of plaintiff]'s employment with [name of defendant];

(b) The new position was substantially inferior to [name of plaintiff]'s former position;

(c) The salary, benefits, and hours of the job were similar to [name of plaintiff]'s former job;

(d) The new position required similar skills, background, and experience;

(e) The job responsibilities were similar; [and]

(f) The job was in the same locality; [and]

(g) [insert other relevant factor(s)].

[In deciding whether [name of plaintiff] failed to make reasonable efforts to retain comparable employment, you should consider whether [name of plaintiff] quit or was discharged from that employment for a reason within [his/her] control.]

Directions for Use

This instruction should be given when there is evidence that the employee's damages could have been mitigated. The bracketed language at he end of the instruction regarding plaintiff's failure to retain a new job is based on the holding in Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1502-1503 [44 Cal.Rptr.2d 565].

Only read factors that have been shown by the evidence.

This instruction should not be used for wrongful demotion cases.

Sources and Authority

"The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee's rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages." (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181-182 [89 Cal.Rptr. 737, 474 P.2d 689], internal citations omitted.)

"The burden is on the employer to prove that substantially similar employment was available which the wrongfully discharged employee could have obtained with reasonable effort." (Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th 607, 616 [46 Cal.Rptr.2d 459].)

"[W]e conclude that the trial court should not have deducted from plaintiff's recovery against defendant the amount that the court found she might have earned in employment which was substantially inferior to her position with defendant." (Rabago-Alvarez v. Dart Industries, Inc. (1976) 55 Cal.App.3d 91, 99 [127 Cal.Rptr. 222].)

"[I]n those instances where the jury determines the employee was fired from a substantially similar position for cause, any amount the employee with reasonable effort could have earned by retaining that employment should be deducted from the amount of damages which otherwise would have been awarded to the employee under the terms of the original employment agreement." (Stanchfield, supra, 37 Cal.App.4th at pp. 1502-1503.)

In deciding whether a school bus driver could have obtained a substantially similar job in other nearby school districts, the court looked at several factors, including salary, benefits, hours of work per day, hours of work per year, locality, and availability of a merit-based system. (California School Employees Ass'n v. Personnel Commission (1973) 30 Cal.App.3d 241, 250-255 [106 Cal.Rptr. 283].)

Secondary Sources

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.08[4] (Matthew Bender)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 1997) Contract Actions, § 8.41

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.18, 249.65 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Wrongful Termination and Discipline, Forms 40, 142 (Matthew Bender)

(New September 2003)