California Civil Jury Instructions (CACI)

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.

Sources and Authority

Civil Code section 2298 provides: "An agency is either actual or ostensible."

Civil Code section 2300 provides: "An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him."

Civil Code section 2317 provides: "Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess."

"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.)

"Ostensible authority of an agent cannot be based on the agent's conduct alone; there must be evidence of conduct by the principal which causes a third party reasonably to believe the agent has authority." (Lindsay-Field v. Friendly (1995) 36 Cal.App.4th 1728, 1734 [43 Cal.Rptr.2d 71].)

"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.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 93-98

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 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 3:29

(New September 2003)