California Civil Jury Instructions (CACI)

2710. Solicitation of Employee by Misrepresentation - Essential Factual Elements (Lab. Code, § 970)

[Name of plaintiff] claims that [name of defendant] made [a] false representation[s] about work to persuade [him/her] to change [his/her] residence. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] made [a] representation[s] to [name of plaintiff] about [insert one or more of the following:]

[the kind, character, or existence of work;]

[the length of time work would last;]

[the compensation for work;]

[the sanitary or housing conditions relating to work;]

[the existence or nonexistence of any pending strike, lockout, or other labor dispute affecting work;]

2. That [name of defendant]'s representation(s) [was/were] not true;

3. That [name of defendant] knew when the representation[s] [was/were] made that [it/they] [was/were] not true;

4. That [name of defendant] intended that [name of plaintiff] rely on the representation[s];

5. That [name of plaintiff] reasonably relied on [name of defendant]'s representation[s] and changed [his/her] residence for the purpose of working for [name of defendant];

6. That [name of plaintiff] was harmed; and

7. That [name of plaintiff]'s reliance on [name of defendant]'s representation(s) was a substantial factor in causing [his/ her] harm.

Directions for Use

If the statutory action under Labor Code section 970 is applicable, do not give the common-law fraud instruction. For other jury instructions regarding opinions as statements of fact, misrepresentations to third parties, reliance, and reasonable reliance, see CACI Nos. 1904 through 1908 in the Fraud or Deceit series.

Sources and Authority

Labor Code section 970 provides: No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either:

(a) The kind, character, or existence of such work;

(b) The length of time such work will last, or the compensation therefor;

(c) The sanitary or housing conditions relating to or surrounding the work;

(d) The existence or nonexistence of any strike, lockout, or other labor dispute affecting it and pending between the proposed employer and the persons then or last engaged in the performance of the labor for which the employee is sought.

Labor Code section 971 provides: "Any person, or agent or officer thereof, who violates Section 970 is guilty of a misdemeanor punishable by a fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or imprisonment for not more than six months or both."

Labor Code section 972 provides, in part: "[A]ny person, or agent or officer thereof who violates any provision of Section 970 is liable to the party aggrieved, in a civil action, for double damages resulting from such misrepresentations. Such civil action may be brought by an aggrieved person or his assigns or successors in interest, without first establishing any criminal liability."

"[S]ection 970, although applied . . . to other employment situations, was enacted to protect migrant workers from the abuses heaped upon them by unscrupulous employers and potential employers, especially involving false promises made to induce them to move in the first instance." (Tyco Industries, Inc. v. Superior Court (1985) 164 Cal.App.3d 148, 155 [211 Cal.Rptr. 540], internal citation and italics omitted.)

"To establish . . . a claim [for violation of section 970], [plaintiff] had to prove that defendants made a knowingly false representation regarding the length of her employment . . . with the intent to persuade her to move there from another place to take the position." (Finch v. Brenda Raceway Corp. (1994) 22 Cal.App.4th 547, 553 [27 Cal.Rptr.2d 531].)

"[Section 970] requires the employee to demonstrate that his or her employer made 'knowingly false representations' concerning the nature, duration or conditions of employment. . . .[¶]Moreover, under the statute an employee must establish that the employer induced him or her to relocate or change residences." (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1392 [88 Cal.Rptr.2d 802].)

"The words 'to change from one place to another' import temporary as well as permanent relocation of residence, as contrasted with a mere change in the site of employment. The quantitative fact that the change of residence was to be only for two weeks rather than for a longer period would not appear to affect the qualitative misrepresentations, nor does it render the statute inapplicable." (Collins v. Rocha (1972) 7 Cal.3d 232, 239-240 [102 Cal.Rptr. 1, 497 P.2d 225].)

"The construction of a statute and whether it is applicable to a factual situation present solely questions of law. Although the trial court erred in determining that the Labor Code sections 970 and 972 were not applicable and hence the issue of double damages was not submitted to the jury, the record reflects that the jury specifically found that [defendant] made false representations to induce [plaintiff] to accept the position in California. Given the express findings by the jury, it is unnecessary to remand this case for a retrial on the limited issue of damages. . . . We therefore modify the judgment to reflect double damages in accordance with Labor Code section 972." (Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514, 1522-1523 [273 Cal.Rptr. 296], internal citation omitted.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, § 344, pp. 335-336; id. (2002 supp.) at § 344, p. 356

4 Wilcox, California Employment Law, Ch. 63, Causes of Action Related to Wrongful Termination, § 63.06[1] (Matthew Bender)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Other Employee Rights Statutes, § 4.51, pp. 188-189

21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and Hour Disputes, §§ 249.30, 249.80 (Matthew Bender)

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

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Termination of Employment, § 6:26, pp. 42-43; id. (2001 supp.) at § 6:26, pp. 249-250

(New September 2003)