California Civil Jury Instructions (CACI)

3602. Affirmative Defense - Agent and Employee Immunity Rule

[Name of defendant] claims that [he/she] was not part of a conspiracy because [he/she] was acting as an [agent/employee] of [name of defendant entity]. To succeed, [name of defendant] must prove both of the following:

1. That [he/she] was acting in [his/her] official capacity on behalf of [name of defendant entity]; and

2. That [he/she] was not acting to advance [his/her] own personal interests.

Directions for Use

This instruction is intended for situations where an individual defendant is alleged to have conspired with an entity. This instruction is not intended to apply in cases where an individual defendant is alleged to have conspired with a third party and there is no agency relationship between them.

Sources and Authority

"[A]gents or employees of a corporation cannot conspire with the corporation while acting in their official capacities on behalf of the corporation rather than as individuals acting for their individual advantage." (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 12 [101 Cal.Rptr. 499], internal citations omitted.)

"The rule 'derives from the principle that ordinarily corporate agents and employees acting for or on behalf of the corporation cannot be held liable for inducing a breach of the corporation's contract since being in a confidential relationship to the corporation their action in this respect is privileged.' " (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 512, fn. 4 [28 Cal.Rptr.2d 475, 869 P.2d 454], internal citations omitted.)

"A corporation is, of course, a legal fiction that cannot act at all except through its employees and agents. When a corporate employee acts in the course of his or her employment, on behalf of the corporation, there is no entity apart from the employee with whom the employee can conspire. '[I]t is basic in the law of conspiracy that you must have wo persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation . . . .' To hold that a subordinate employee of a corporation can be liable for conspiring with the corporate principal would destroy what has heretofore been the settled rule that a corporation cannot conspire with itself." (Black v. Bank of America N.T. & S.A. (1994) 30 Cal.App.4th 1, 6 [35 Cal.Rptr.2d 725], internal citations and footnote omitted.)

Secondary Sources

1 Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and Related Theories of Joint Liability, § 9.03[3][b] (Matthew Bender)

13 California Forms of Pleading and Practice, Ch. 126, Conspiracy (Matthew Bender)

4 California Points and Authorities, Ch. 46, Conspiracy (Matthew Bender)

(New September 2003)