California Civil Jury Instructions (CACI) (2017)

2422. Breach of Employment Contract - Specified Term— Damages

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2422.Breach of Employment Contract—Specified
Term—Damages
If you find that [name of defendant] [discharged/demoted] [name of
plaintiff] in breach of an employment contract for a specified term, then
you must decide the damages, if any, that [name of plaintiff] has proved
[he/she] is entitled to recover. To make that decision, you must:
1. Decide the amount that [name of plaintiff] would have earned up
to today, including any benefits and pay increases; [and]
2. Add the present cash value of any future wages and benefits that
[he/she] would have earned up to the end of the term of the
contract; [and]
3. [Describe any other contract damages that were allegedly caused by
defendant’s conduct.]
[If you find that [name of plaintiff] would have exercised [his/her] option
to extend the term of the employment contract, then you may consider
the total term of [name of plaintiff]’s employment contract to be [specify
length of original contract term plus option term].]
New September 2003
Directions for Use
Use CACI No. 2407, Employee’s Duty to Mitigate Damages, if the defendant seeks
an offset for wages plaintiff could have earned from similar employment.
Sources and Authority
• Damages for Breach of Contract. Civil Code section 3300.
• “Stated simply, the contract compensation for the unexpired period of the
contract affords a prima facie measure of damages; the actual measured
damage, however, is the contract amount reduced by compensation received
during the unexpired term; if, however, such other compensation has not been
received, the contract amount may still be reduced or eliminated by a showing
that the employee, by the exercise of reasonable diligence and effort, could have
procured comparable employment and thus mitigated the damages.” (Erler v.
Five Points Motors, Inc. (1967) 249 Cal.App.2d 560, 562 [57 Cal.Rptr. 516].)
• In appropriate circumstances, the court may authorize the trier of fact to
“consider the probability the employee would exercise the option in determining
the length of the unexpired term of employment when applying the applicable
measure of damages . . . .” (Oldenkott v. American Electric, Inc. (1971) 14
Cal.App.3d 198, 204 [92 Cal.Rptr. 127].)
• “The trial court correctly found that defendants wrongfully terminated the
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employment contract and that the measure of damages was the difference
between the amount Silva would have received under the contract and that
amount which Silva actually received from his other employment.” (Silva v.
McCoy (1968) 259 Cal.App.2d 256, 260 [66 Cal.Rptr. 364].)
• “The plaintiff has the burden of proving his damage. The law is settled that he
has the duty of minimizing that damage. While the contract wages are prima
facie [evidence of] his damage, his actual damage is the amount of money he
was out of pocket by reason of the wrongful discharge.” (Erler v. Five Points
Motors, Inc., supra, 249 Cal.App.2d at pp. 567–568.)
• “The burden of proof is on the party whose breach caused damage, to establish
matters relied on to mitigate damage.” (Steelduct Co. v. Henger-Seltzer Co.
(1945) 26 Cal.2d 634, 654 [160 P.2d 804], internal citations omitted.)
Secondary Sources
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 17:81, 17:95, 17:105, 17:495
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.21 (Matthew Bender)
WRONGFUL TERMINATION CACI No. 2422
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