California Civil Jury Instructions (CACI) (2017)

3705. Existence of "Agency" Relationship Disputed

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3705.Existence of “Agency” Relationship Disputed
[Name of plaintiff] claims that [name of agent] was [name of defendant]’s
agent and that [name of defendant] is therefore responsible for [name of
agent]’s conduct.
If [name of plaintiff] proves that [name of defendant] gave [name of agent]
authority to act on [his/her/its] behalf, then [name of agent] was [name of
defendant]’s agent. This authority may be shown by words or may be
implied by the parties’ conduct. This authority cannot be shown by the
words of [name of agent] alone.
New September 2003
Directions for Use
This instruction should be used when the factual setting involves relationships such
as homeowner-real estate agent or franchisor-franchisee.
Sources and Authority
• “Agent” Defined. Civil Code section 2295.
• “The existence of an agency is a factual question within the province of the
trier of fact whose determination may not be disturbed on appeal if supported
by substantial evidence.” (L. Byron Culver & Associates v. Jaoudi Industrial &
Trading Corp. (1991) 1 Cal.App.4th 300, 305 [1 Cal.Rptr.2d 680], internal
citation omitted.)
• The burden of proving the existence of an agency rests on the one affirming its
existence. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781
[111 P.2d 740].)
• One who performs a mere favor for another without being subject to any legal
duty of service and without assenting to right of control is not an agent,
because the agency relationship rests upon mutual consent. (Hanks v. Carter &
Higgins of Cal., Inc. (1967) 250 Cal.App.2d 156, 161 [58 Cal.Rptr. 190].)
• An agency must rest upon an agreement. (D’Acquisto v. Evola (1949) 90
Cal.App.2d 210, 213 [202 P.2d 596].) “Agency may be implied from the
circumstances and conduct of the parties.” (Michelson v. Hamada (1994) 29
Cal.App.4th 1566, 1579 [36 Cal.Rptr.2d 343], internal citations omitted.)
• “Whether a person performing work for another is an agent or an independent
contractor depends primarily upon whether the one for whom the work is done
has the legal right to control the activities of the alleged agent. . . . It is not
essential that the right of control be exercised or that there be actual supervision
of the work of the agent. The existence of the right of control and supervision
establishes the existence of an agency relationship.” (Malloy v. Fong (1951) 37
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Cal.2d 356, 370 [232 P.2d 241], internal citations omitted.)
• When the principal controls only the results of the work and not the means by
which it is accomplished, an independent contractor relationship is established.
(White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 25 [202 Cal.Rptr. 141],
overruled on other grounds in Soule v. GM Corp. (1994) 8 Cal.4th 548 [34
Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]here is substantial overlap in the factors for determining whether one is an
employee or an agent.” (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th
1156, 1184 [183 Cal.Rptr.3d 394].)
• “Agency and independent contractorship are not necessarily mutually exclusive
legal categories as independent contractor and servant or employee are. In other
words, an agent may also be an independent contractor. One who contracts to
act on behalf of another and subject to the other’s control, except with respect
to his physical conduct, is both an agent and an independent contractor.”
(Jackson, supra, 233 Cal.App.4th at p. 1184, original italics, internal citations
omitted.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 92–96
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04 (Matthew Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties
for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.51 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.12 (Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent, § 182.30 et seq.
(Matthew Bender)
1 California Civil Practice: Torts, §§ 3:26–3:27 (Thomson Reuters)
VICARIOUS RESPONSIBILITY CACI No. 3705
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