California Civil Jury Instructions (CACI) (2017)

3610. Aiding and Abetting Tort—Essential Factual Elements

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3610.Aiding and Abetting Tort—Essential Factual Elements
[Name of plaintiff] claims that [he/she] was harmed by [name of actor]’s
[insert tort theory, e.g., assault and battery] and that [name of defendant] is
responsible for the harm because [he/she] aided and abetted [name of
actor] in committing the [e.g., assault and battery].
If you find that [name of actor] committed [a/an] [e.g., assault and
battery] that harmed [name of plaintiff], then you must determine
whether [name of defendant] is also responsible for the harm. [Name of
defendant] is responsible as an aider and abetter if [name of plaintiff]
proves all of the following:
1. That [name of defendant] knew that [a/an] [e.g., assault and
battery] was [being/going to be] committed by [name of actor]
against [name of plaintiff];
2. That [name of defendant] gave substantial assistance or
encouragement to [name of actor]; and
3. That [name of defendant]’s conduct was a substantial factor in
causing harm to [name of plaintiff].
Mere knowledge that [a/an] [e.g., assault and battery] was [being/going to
be] committed and the failure to prevent it do not constitute aiding and
abetting.
New April 2008; Revised December 2015
Directions for Use
Give this instruction if the plaintiff seeks to hold a defendant responsible for the
tort of another on a theory of aiding and abetting, whether or not the active
tortfeasor is also a defendant.
Some cases seem to hold that in addition to the elements of knowledge and
substantial assistance, a complaint must allege the aider and abettor had the specific
intent to facilitate the wrongful conduct. (See Schulz v. Neovi Data Corp. (2007)
152 Cal.App.4th 86, 95 [60 Cal.Rptr.3d 810].)
It appears that one may be liable as an aider and abetter of a negligent act. (See
Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1290 [188 Cal.Rptr.3d 623];
Orser v. George (1967) 252 Cal.App.2d 660, 668 [60 Cal.Rptr. 708].)
Sources and Authority
• “The jury was also instructed on aiding and abetting, as follows: ‘A person aids
and abets the commission of a crime when he or she: [¶] (1) With knowledge of
the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose
of committing or encouraging or facilitating the commission of the crime, and
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[¶] (3) By act or advice aids, promotes, encourages or instigates the commission
of the crime. [¶] A person who aids and abets the commission of a crime need
not be present at the scene of the crime. [¶] Mere presence at the scene of a
crime which does not itself assist the commission of the crime does not amount
to aiding and abetting. [¶] Mere knowledge that a crime is being committed and
the failure to prevent it does not amount to aiding and abetting.” (Casella v.
SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1140–1141 [69
Cal.Rptr.3d 445].)
• “The elements of a claim for aiding and abetting a breach of fiduciary duty are:
(1) a third party’s breach of fiduciary duties owed to plaintiff; (2) defendant’s
actual knowledge of that breach of fiduciary duties; (3) substantial assistance or
encouragement by defendant to the third party’s breach; and (4) defendant’s
conduct was a substantial factor in causing harm to plaintiff. (Judicial Council
of Cal., Civ. Jury Instns. (CACI) (2014) No. 3610 . . .).” (Nasrawi v. Buck
Consultants LLC (2014) 231 Cal.App.4th 328, 343 [179 Cal.Rptr.3d 813].)
• “[C]ausation is an essential element of an aiding and abetting claim, i.e.,
plaintiff must show that the aider and abettor provided assistance that was a
substantial factor in causing the harm suffered.” (American Master Lease LLC v.
Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1476 [171 Cal.Rptr.3d
548].)
• “The fact the instruction [CACI No. 3610] does not use the word ‘intent’ is not
determinative. ‘California courts have long held that liability for aiding and
abetting depends on proof the defendant had actual knowledge of the specific
primary wrong the defendant substantially assisted. . . . “The words ‘aid and
abet’ as thus used have a well understood meaning, and may fairly be construed
to imply an intentional participation with knowledge of the object to be
attained.” [Citation.]’ A defendant who acts with actual knowledge of the
intentional wrong to be committed and provides substantial assistance to the
primary wrongdoer is not an accidental participant in the enterprise.” (Upasani
v. State Farm General Ins. Co. (2014) 227 Cal.App.4th 509, 519 [173
Cal.Rptr.3d 784], original italics, internal citations omitted.)
• “As noted, some cases suggest that a plaintiff also must plead specific intent to
facilitate the underlying tort. We need not decide whether specific intent is a
required element because, read liberally, the fifth amended complaint alleges
that [defendant] intended to assist the Association in breaching its fiduciary
duties. In particular, plaintiffs allege that, with knowledge of the Association’s
breaches, [defendant] ‘gave substantial encouragement and assistance to [the
Association] to breach its fiduciary duties.’ Fairly read, that allegation indicates
intent to participate in tortious activity.” (Nasrawi, supra, 231 Cal.App.4th at p.
345, original italics, internal citations omitted.)
• “[W]e consider whether the complaint states a claim based upon ‘concert of
action’ among defendants. The elements of this doctrine are prescribed in
section 876 of the Restatement Second of Torts. The section provides, ‘For
harm resulting to a third person from the tortious conduct of another, one is
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subject to liability if he (a) does a tortious act in concert with the other or
pursuant to a common design with him, or (b) knows that the other’s conduct
constitutes a breach of duty and gives substantial assistance or encouragement
to the other so to conduct himself, or (c) gives substantial assistance to the
other in accomplishing a tortious result and his own conduct, separately
considered, constitutes a breach of duty to the third person.’ With respect to this
doctrine, Prosser states that ‘those who, in pursuance of a common plan or
design to commit a tortious act, actively take part in it, or further it by
cooperation or request, or who lend aid or encouragement to the wrongdoer, or
ratify and adopt his acts done for their benefit, are equally liable with him.
[para.] Express agreement is not necessary, and all that is required is that there
be a tacit understanding . . . .’ ” (Sindell v. Abbott Laboratories (1980) 26
Cal.3d 588, 604 [163 Cal.Rptr. 132, 607 P.2d 924], internal citations omitted.)
• “Liability may . . . be imposed on one who aids and abets the commission of
an intentional tort if the person (a) knows the other’s conduct constitutes a
breach of duty and gives substantial assistance or encouragement to the other to
so act or (b) gives substantial assistance to the other in accomplishing a tortious
result and the person’s own conduct, separately considered, constitutes a breach
of duty to the third person.” (American Master Lease LLC,supra, 225
Cal.App.4th at p. 1475.)
• “Restatement Second of Torts . . . recognizes a cause of action for aiding and
abetting in a civil action when it provides: ‘For harm resulting to a third person
from the tortious conduct of another, one is subject to liability if he [¶] . . . [¶]
(b) knows that the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct
himself . . . .’ ‘Advice or encouragement to act operates as a moral support to a
tortfeasor and if the act encouraged is known to be tortious it has the same
effect upon the liability of the adviser as participation or physical
assistance . . . . It likewise applies to a person who knowingly gives substantial
aid to another who, as he knows, intends to do a tortious act.’ ” (Schulz, supra,
152 Cal.App.4th at pp. 93–94, internal citations omitted.)
• “California courts have long held that liability for aiding and abetting depends
on proof the defendant had actual knowledge of the specific primary wrong the
defendant substantially assisted . . . . ‘The words “aid and abet” as thus used
have a well understood meaning, and may fairly be construed to imply an
intentional participation with knowledge of the object to be attained.’ ” (Casey
v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145–1146 [26
Cal.Rptr.3d 401], original italics, internal citations omitted.)
• “ ‘Mere knowledge that a tort is being committed and the failure to prevent it
does not constitute aiding and abetting. “As a general rule, one owes no duty to
control the conduct of another . . . .” More specifically, a supervisor is not
liable to third parties for the acts of his or her subordinates.’ ” (Austin B. v.
Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879 [57 Cal.Rptr.3d
454], internal citations omitted.)
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• “ ‘In the civil arena, an aider and abettor is called a cotortfeasor. To be held
liable as a cotortfeasor, a defendant must have knowledge and intent . . . . A
defendant can be held liable as a cotortfeasor on the basis of acting in concert
only if he or she knew that a tort had been, or was to be, committed, and acted
with the intent of facilitating the commission of that tort.’ Of course, a
defendant can only aid and abet another’s tort if the defendant knows what ‘that
tort’ is . . . . [T]he defendant must have acted to aid the primary tortfeasor
‘with knowledge of the object to be attained.’ ” (Casey, supra, 127 Cal.App.4th
at p. 1146, original italics, internal citations omitted.)
• “The concert of action theory of group liability ‘may be used to impose liability
on a person who did not personally cause the harm to plaintiff, but whose
“ ‘[a]dvice or encouragement to act operates as a moral support to a tortfeasor[,]
and if the act encouraged is known to be tortious[,] it has the same effect upon
the liability of the adviser as participation or physical assistance. If the
encouragement or assistance is a substantial factor in causing the resulting tort,
the one giving it is himself a tortfeasor and is responsible for the consequences
of the other’s act.’ ” ’ The doctrine is likened to aiding and abetting.”
(Navarrete, supra, 237 Cal.App.4th at p. 1286.)
• “ ‘Despite some conceptual similarities, civil liability for aiding and abetting the
commission of a tort, which has no overlaid requirement of an independent
duty, differs fundamentally from liability based on conspiracy to commit a tort.
[Citations.] “ ‘[A]iding-abetting focuses on whether a defendant knowingly gave
“substantial assistance” to someone who performed wrongful conduct, not on
whether the defendant agreed to join the wrongful conduct.’ ” ’ ” (Stueve Bros.
Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 324 [166 Cal.Rptr.3d
116].)
• “ ‘[W]hile aiding and abetting may not require a defendant to agree to join the
wrongful conduct, it necessarily requires a defendant to reach a conscious
decision to participate in tortious activity for the purpose of assisting another in
performing a wrongful act. . . .’ [Citation.] The aider and abetter’s conduct
need not, as ‘separately considered,’ constitute a breach of duty.” (American
Master Lease LLC,supra, 225 Cal.App.4th at pp. 1475–1476.)
• “Nor do we agree with [defendant]’s contention that there is no evidence she
aided and abetted [tortfeasor]. Her claim is premised on the assertion that the
law in California does not permit liability for aiding and abetting ‘unintentional
conduct’; that [plaintiff] alleged no intentional tort, only that [tortfeasor] acted
negligently, and there is no evidence he intended to harm anyone. She argues,
‘Even if [tortfeasor] inadvertently violated the law against an “exhibition of
speed,” which he did not, [defendant] could not be liable for aiding and abetting
such unintentional conduct.’ However, for purposes of joint liability under a
concert of action theory, it suffices that [defendant] assist or encourage
[tortfeasor]’s breach of a duty, which Vehicle Code section 23109 imposed upon
him (and also upon her not to aid and abet [tortfeasor]).” (Navarrete, supra, 237
Cal.App.4th at p. 1290.)
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• “James too must be held as a defendant because, although he did not fire the
fatal bullet, there is evidence (which may or may not be suffıcient to prove him
liable at the trial) creating a question for the trier of fact. This evidence
indicates he was firing alternately with Vierra at the same mudhen, in the same
line of fire and possibly tortiously. In other words (to paraphrase the
Restatement . . .), the record permits a possibility James knew Vierra’s conduct
constituted a breach of duty owed Orser and that James was giving Vierra
substantial ‘assistance or encouragement’; also that this was substantial
assistance to Vierra in a tortious result with James’ own conduct, ‘separately
considered, constituting a breach of duty to’ Orser.”, (Orser, supra, 252
Cal.App.2d at p. 668, original italics; see also Rest. 2d Torts, § 876, Com. on
Clause (b), Illustration 6.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 44
1Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and
Related Theories of Joint Liability, §§ 9.01, 9.02 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, Conspiracy, §§ 126.10,
126.11 (Matthew Bender)
4 California Points and Authorities, Ch. 46, Conspiracy, § 46.04 (Matthew Bender)
3611–3699. Reserved for Future Use
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