California Civil Jury Instructions (CACI) (2017)

3709. Ostensible Agent

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3709.Ostensible Agent
[Name of plaintiff] claims that [name of defendant] is responsible for
[name of agent]’s conduct because [he/she] was [name of defendant]’s
apparent [employee/agent]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] intentionally or carelessly created the
impression that [name of agent] was [name of defendant]’s
[employee/agent];
2. That [name of plaintiff] reasonably believed that [name of agent]
was [name of defendant]’s [employee/agent]; and
3. That [name of plaintiff] was harmed because [he/she] reasonably
relied on [his/her] belief.
New September 2003
Sources and Authority
• Agency Is Actual or Ostensible. Civil Code section 2298.
• “Ostensible Agency” Defined. Civil Code section 2300.
• “Ostensible Authority” Defined. Civil Code section 2317.
• When Principal is Bound by Ostensible Agent. Civil Code section 2334.
• “ ‘[O]stensible authority arises as a result of conduct of the principal which
causes the third party reasonably to believe that the agent possesses the
authority to act on the principal’s behalf.’ ‘Ostensible authority may be
established by proof that the principal approved prior similar acts of the agent.’
‘ “[W]here the principal knows that the agent holds himself out as clothed with
certain authority, and remains silent, such conduct on the part of the principal
may give rise to liability . . . .” . . .’ ” (Chicago Title Ins. Co. v. AMZ Ins.
Services, Inc. (2010) 188 Cal.App.4th 401, 426–427 [115 Cal.Rptr.3d 707],
original italics, internal citations omitted.)
• “Whether ostensible agency exist[s] is a question of fact and may be implied
from [the] circumstances.” (Yanchor v. Kagan (1971) 22 Cal.App.3d 544, 550
[99 Cal.Rptr. 367].)
• “ ‘It is elementary that there are three requirements necessary before recovery
may be had against a principal for the act of an ostensible agent. The person
dealing with the agent must do so with belief in the agent’s authority and this
belief must be a reasonable one; such belief must be generated by some act or
neglect of the principal sought to be charged; and the third person in relying on
the agent’s apparent authority must not be guilty of negligence.’ ” (Associated
Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 399 [118 Cal.Rptr. 772, 530
P.2d 1084], internal citations omitted.)
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• “Ostensible agency cannot be established by the representations or conduct of
the purported agent; the statements or acts of the principal must be such as to
cause the belief the agency exists.” (American Way Cellular, Inc. v. Travelers
Property Casualty Co. of America (2013) 216 Cal.App.4th 1040, 1053 [157
Cal.Rptr.3d 385].)
• “Liability of the principal for the acts of an ostensible agent rests on the
doctrine of ‘estoppel,’ the essential elements of which are representations made
by the principal, justifiable reliance by a third party, and a change of position
from such reliance resulting in injury.” (Preis v. American Indemnity Co. (1990)
220 Cal.App.3d 752, 761 [269 Cal.Rptr. 617], internal citation omitted.)
• “But the adequacy of the notice is only one of the many fact questions that
arise under ostensible agency. The jury must also determine whether the patient
entrusted herself to the hospital, whether the hospital selected the doctor, and
whether the patient reasonably believed the doctor was an agent of the
hospital.” (Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631,
641 [188 Cal.Rptr.3d 246].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 144–149
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious
Liability, ¶¶ 2:676, 2:677 (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04[6] (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§§ 427.11, 427.22 (Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent, §§ 182.04,
182.120 et seq. (Matthew Bender)
1 California Civil Practice: Torts, § 3:29 (Thomson Reuters)
CACI No. 3709 VICARIOUS RESPONSIBILITY
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