California Civil Jury Instructions (CACI)

2433. Wrongful Discharge in Violation of Public Policy - Damages

If you find that [name of defendant] [discharged/constructively discharged] [name of plaintiff] in violation of public policy, then you must decide the amount of damages that [name of plaintiff] has proven [he/she] is entitled to recover, if any. 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 for the length of time the employment with [name of defendant] was reasonably certain to continue; [and]

3. [Add damages for [describe any other damages that were allegedly caused by defendant's conduct, e.g., "emotional distress"] if you find that [name of defendant]'s conduct was a substantial factor in causing that harm.]

In determining the period that [name of plaintiff]'s employment was reasonably certain to have continued, you should consider such things as:

(a) [Name of plaintiff]'s age, work performance, and intent regarding continuing employment with [name of defendant];

(b) [Name of defendant]'s prospects for continuing the operations involving [name of plaintiff]; and

(c) Any other factor that bears on how long [name of plaintiff] would have continued to work.

Directions for Use

This instruction should be followed by CACI No. 2407, Breach of Employment Contract—Unspecified Term—Employee's Duty to Mitigate Damages, in cases where the employee's duty to mitigate damages is at issue.

Other types of tort damages may be available to a plaintiff. For an instruction on emotional distress damages, see CACI No. 3905A, Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage). See punitive damages instructions in the damages section (CACI No. 3940, et seq.).

Sources and Authority

A tortious termination subjects the employer to " 'liability for compensatory and punitive damages under normal tort principles.' " (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1101 [4 Cal.Rptr.2d 874, 824 P.2d 680], internal citation omitted.)

"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." (Parker v. Twentieth Century Fox-Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737, 474 P.2d 689], internal citations omitted; see Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 518 [241 Cal.Rptr. 916].)

"A plaintiff may recover for detriment reasonably certain to result in the future. While there is no clearly established definition of 'reasonable certainty,' evidence of future detriment has been held sufficient based on expert medical opinion which considered the plaintiff's particular circumstances and the expert's experience with similar cases." (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 995 [16 Cal.Rptr.2d 787], internal citations omitted, disapproved of on another ground in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

"[I]t is our view that in an action for wrongful discharge, and pursuant to the present day concept of employer-employee relations, the term 'wages' should be deemed to include not only the periodic monetary earnings of the employee but also the other benefits to which he is entitled as a part of his compensation." (Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463 P.2d 426].)

In determining the period that plaintiff's employment was reasonably certain to have continued, the trial court took into consideration plaintiff's " 'physical condition, his age, his propensity for hard work, his expertise in managing defendants' offices, the profit history of his peration, [and] the foreseeability of the continued future demand for tax return service to small taxpayers. . . .' " (Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr. 169].)

Civil Code section 3294(a) allows a plaintiff to seek punitive damages "for the breach of an obligation not arising from contract" when the plaintiff can show by "clear and convincing evidence" that a defendant "has been guilty of oppression, fraud, or malice."

Civil Code section 3294(b) provides: "An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights and safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation."

In adding subdivision (b) to section 3294 in 1980, "[t]he drafters' goals were to avoid imposing punitive damages on employers who were merely negligent or reckless and to distinguish ordinary respondeat superior liability from corporate liability for punitive damages." (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19, 981 P.2d 944], see Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1150-1151 [74 Cal.Rptr.2d 510].)

Secondary Sources

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.08[2] (Matthew Bender)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 1997) Public Policy Violations, §§ 5.64-5.67

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.18, 249.50-249.55, 249.80-249.81, 249.90 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Wrongful Termination and Discipline, Forms 32, 44 (Matthew Bender)

(New September 2003)