CACI No. 358. Mitigation of Damages

Judicial Council of California Civil Jury Instructions (2020 edition)

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358.Mitigation of Damages
If [name of defendant] breached the contract and the breach caused
harm, [name of plaintiff] is not entitled to recover damages for harm that
[name of defendant] proves [name of plaintiff] could have avoided with
reasonable efforts or expenditures. You should consider the
reasonableness of [name of plaintiff]’s efforts in light of the circumstances
facing [him/her/nonbinary pronoun/it] at the time, including
[his/her/nonbinary pronoun/its] ability to make the efforts or expenditures
without undue risk or hardship.
If [name of plaintiff] made reasonable efforts to avoid harm, then your
award should include reasonable amounts that [he/she/nonbinary pronoun/
it] spent for this purpose.
New September 2003
Sources and Authority
• “ ‘ “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers
damage as a result of . . . a breach of contract . . . has a duty to take
reasonable steps to mitigate those damages and will not be able to recover for
any losses which could have been thus avoided.” ’ Under the doctrine, ‘[a]
plaintiff may not recover for damages avoidable through ordinary care and
reasonable exertion.’ However, ‘[t]he duty to mitigate damages does not require
an injured party to do what is unreasonable or impracticable.’ ” (Agam v. Gavra
(2015) 236 Cal.App.4th 91, 111 [186 Cal.Rptr.3d 295], internal citations
omitted.)
• ‘The rule of mitigation of damages has no application where its effect would be
to require the innocent party to sacrifice and surrender important and valuable
rights.” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32
Cal.Rptr.2d 329].)
• “Whether a plaintiff acted reasonably to mitigate damages . . . is a factual
matter to be determined by the trier of fact . . . .” (Agam, supra, 236
Cal.App.4th at p. 111.)
• “A plaintiff who suffers damage as a result of either a breach of contract or a
tort has a duty to take reasonable steps to mitigate those damages and will not
be able to recover for any losses which could have been thus avoided.” (Shaffer
v. Debbas (1993) 17 Cal.App.4th 33, 41 [21 Cal.Rptr.2d 110], internal citation
omitted.)
• “A party injured by a breach of contract is required to do everything reasonably
possible to negate his own loss and thus reduce the damages for which the other
party has become liable. The plaintiff cannot recover for harm he could have
foreseen and avoided by such reasonable efforts and without undue expense.
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However, the injured party is not precluded from recovery to the extent that he
has made reasonable but unsuccessful efforts to avoid loss.” (Brandon & Tibbs v.
George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460 [277
Cal.Rptr. 40], internal citations omitted.)
• “The burden of proving that losses could have been avoided by reasonable effort
and expense must always be borne by the party who has broken the contract.
Inasmuch as the law denies recovery for losses that can be avoided by
reasonable effort and expense, justice requires that the risks incident to such
effort should be carried by the party whose wrongful conduct makes them
necessary. Therefore, special losses that a party incurs in a reasonable effort to
avoid losses resulting from a breach are recoverable as damages.” (Brandon &
Tibbs, supra, 226 Cal.App.3d at pp. 460-461, internal citations omitted.)
Secondary Sources
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.56
(Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.77
(Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, §§ 65.103, 65.121
(Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 7, Seeking or
Opposing Damages in Contract Actions, 7.12[6][b], 7.15[4]
CONTRACTS CACI No. 358
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