California Civil Jury Instructions (CACI) (2017)

2433. Wrongful Discharge in Violation of Public Policy - Damages

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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
(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.
New September 2003
Directions for Use
This instruction should be followed by CACI No. 2407, Employee’s Duty to
Mitigate Damages, in cases where the employee’s duty to mitigate damages is at
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
• Standard for Punitive Damages. Civil Code section 3294(a).
Employer Liability for Punitive Damages. Civil Code section 3294(b).
• 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
• “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 operation, [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.
• 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
Chin et al., California Practice Guide: Employment Litigation ¶¶ 17:237, 17:362,
17:365 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.64–5.67
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[2] (Matthew Bender)
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, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.41–100.59 (Matthew Bender)
2434–2440. Reserved for Future Use