California Civil Jury Instructions (CACI) (2017)

332. Affirmative Defense—Duress

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332.Affirmative Defense—Duress
[Name of defendant] claims that there was no contract because [his/her]
consent was given under duress. To succeed, [name of defendant] must
prove all of the following:
1. That [name of plaintiff] used a wrongful act or wrongful threat to
pressure [name of defendant] into consenting to the contract;
2. That [name of defendant] was so afraid or intimidated by the
wrongful act or wrongful threat that [he/she] did not have the
free will to refuse to consent to the contract; and
3. That [name of defendant] would not have consented to the
contract without the wrongful act or wrongful threat.
An act or a threat is wrongful if [insert relevant rule—e.g., “a criminal
act is threatened”].
If you decide that [name of defendant] has proved all of the above, then
no contract was created.
New September 2003; Revised December 2005
Directions for Use
Use CACI No. 333, Affırmative Defense—Economic Duress, in cases involving
economic duress.
Sources and Authority
• When Consent Not Freely Given. Civil Code sections 1567, 1568.
• Duress. Civil Code section 1569.
• Menace. Civil Code section 1570.
• “Menace” is considered to be duress: “Under the modern rule, ‘ “[d]uress,
which includes whatever destroys one’s free agency and constrains [her] to do
what is against [her] will, may be exercised by threats, importunity or any
species of mental coercion. It is shown where a party ‘intentionally used threats
or pressure to induce action or nonaction to the other party’s detriment.’ ” ’ The
coercion must induce the assent of the coerced party, who has no reasonable
alternative to succumbing.” (In re Marriage of Baltins (1989) 212 Cal.App.3d
66, 84 [260 Cal.Rptr. 403], internal citations omitted.)
• “Duress envisions some unlawful action by a party by which one’s consent is
obtained through fear or threats.” (Keithley v. Civil Service Bd. of The City of
Oakland (1970) 11 Cal.App.3d 443, 450 [89 Cal.Rptr. 809], internal citations
• Duress is found only where fear is intentionally used as a means of procuring
consent: “[A]n action for duress and menace cannot be sustained when the
voluntary action of the apprehensive party is induced by his speculation upon or
anticipation of a future event suggested to him by the defendant but not
threatened to induce his conduct. The issue in each instance is whether the
defendant intentionally exerted an unlawful pressure on the injured party to
deprive him of contractual volition and induce him to act to his own detriment.”
(Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894–895 [57 Cal.Rptr. 19].)
• It is wrongful to use the threat of criminal prosecution to obtain a consent:
“California law is clear that an agreement obtained by threat of criminal
prosecution constitutes menace and is unenforceable as against public policy.”
(Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15
Cal.App.4th 119, 127 [18 Cal.Rptr.2d 626].) However, a threat of legitimate
civil action is not considered wrongful: “[T]he action or threat in duress or
menace must be unlawful, and a threat to take legal action is not unlawful
unless the party making the threat knows the falsity of his claim.” (Odorizzi v.
Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)
• Standard duress is evaluated under a subjective standard: “The question in each
case [is], Was the person so acted upon by threats of the person claiming the
benefit of the contract, for the purpose of obtaining such contract, as to be
bereft of the quality of mind essential to the making of a contract, and was the
contract thereby obtained? Hence, under this theory duress is to be tested, not
by the nature of the threats, but rather by the state of mind induced thereby in
the victim.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 744 [129
Cal.Rptr. 566].)
• The wrongful acts of a third party may constitute duress sufficient to allow
rescission of a contract with a party, who, although not participating in those
wrongful acts, had knowledge of the innocent party’s position. (Leeper v.
Beltrami (1959) 53 Cal.2d 195, 205–206 [1 Cal.Rptr. 12, 347 P.2d 12].)
• “[Defendant has] the burden of proving by a preponderance of the evidence the
affirmative of the issues of duress and plaintiff’s default.” (Fio Rito v. Fio Rito
(1961) 194 Cal.App.2d 311, 322 [14 Cal.Rptr. 845]; cf. Stevenson v. Stevenson
(1940) 36 Cal.App.2d 494, 500 [97 P.2d 982].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 309–315
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud,
Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121
(Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue
Influence, and Mistake, § 92.20 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.351 (Matthew
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or
Opposing Equitable Remedies in Contract Actions, 8.07
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking
or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence,
17.03–17.06, 17.20–17.24[1]