California Civil Jury Instructions (CACI) (2017)

336. Affirmative Defense—Waiver

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336.Affirmative Defense—Waiver
[Name of defendant] claims that [he/she/it] did not have to [insert
description of performance] because [name of plaintiff] gave up [his/her/
its] right to have [name of defendant] perform [this/these] obligation[s].
This is called a “waiver.”
To succeed, [name of defendant] must prove both of the following by
clear and convincing evidence:
1. That [name of plaintiff] knew [name of defendant] was required to
[insert description of performance]; and
2. That [name of plaintiff] freely and knowingly gave up [his/her/its]
right to have [name of defendant] perform [this/these]
A waiver may be oral or written or may arise from conduct that shows
that [name of plaintiff] gave up that right.
If [name of defendant] proves that [name of plaintiff] gave up [his/her/its]
right to [name of defendant]’s performance of [insert description of
performance], then [name of defendant] was not required to perform
[this/these] obligation[s].
New September 2003
Directions for Use
This issue is decided under the “clear and convincing” standard of proof. See
CACI No. 201, More Likely True—Clear and Convincing Proof.
Sources and Authority
• “Waiver is the intentional relinquishment of a known right after knowledge of
the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422].)
• “[Waiver] may be implied through conduct manifesting an intention to waive.
Acceptance of benefits under a lease is conduct that supports a finding of
waiver.” (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179
[120 Cal.Rptr.3d 943], internal citations omitted.)
• Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are
no disputed facts and only one reasonable inference may be drawn, the issue
can be determined as a matter of law.’ ” (DuBeck v. California Physicians’
Service (2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)
• When the injured party with knowledge of the breach continues to accept
performance from the guilty party, such conduct may constitute a waiver of the
breach. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435,
440–441 [6 P.2d 71].)
• There can be no waiver where the one against whom it is asserted has acted
without full knowledge of the facts. It cannot be presumed, in the absence of
such knowledge, that there was an intention to waive an existing right. (Craig v.
White (1921) 187 Cal. 489, 498 [202 P. 648].)
• “ ‘Waiver always rests upon intent. Waiver is the intentional relinquishment of a
known right after knowledge of the facts.’ The burden, moreover, is on the
party claiming a waiver of a right to prove it by clear and convincing evidence
that does not leave the matter to speculation, and ‘doubtful cases will be
decided against a waiver’.” (City of Ukiah v. Fones (1966) 64 Cal.2d 104,
107–108 [48 Cal.Rptr. 865, 410 P.2d 369]; Florence Western Medical Clinic v.
Bonta (2000) 77 Cal.App.4th 493, 504 [91 Cal.Rptr.2d 609].)
• The “clear and convincing” standard applies “particularly” to rights favored in
the law; however, it does not apply exclusively to such favored rights. It is
proper to instruct a jury that waiver must be proved by this higher standard of
proof. (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe and Takeout III, Ltd.
(1994) 30 Cal.App.4th 54, 61 [35 Cal.Rptr.2d 515].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed.) Contracts §§ 856, 857
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57,
140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110
(Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or
Defending Action for Breach of Contract, 22.08, 22.65, 22.68