California Civil Jury Instructions (CACI) (2017)

3602. Affirmative Defense - Agent and Employee Immunity Rule

Download PDF
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
New September 2003
Directions for Use
This instruction is for use if an individual defendant is alleged to have conspired
with an entity. This instruction is not intended to apply if 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 two 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.)
• “[U]nder the agent’s immunity rule, ‘[a] cause of action for civil conspiracy
may not arise . . . if the alleged conspirator, though a participant in the
agreement underlying the injury, was not personally bound by the duty violated
by the wrongdoing and was acting only as the agent or employee of the party
who did have that duty.’ ” (Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136,
1157 [151 Cal.Rptr.3d 683], original italics.)
• “Conspiracy liability may properly be imposed on nonfiduciary agents or
attorneys for conduct which they carry out not simply as agents or employees
of fiduciary defendants, but in furtherance of their own financial gain.”
(Skarbrevik v. Cohen (1991) 231 Cal.App.3d 692, 709 [282 Cal.Rptr. 627].)
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, § 126.11 Conspiracy
(Matthew Bender)
4 California Points and Authorities, Ch. 46, § 46.21 et seq. Conspiracy (Matthew
3603–3609. Reserved for Future Use