CACI No. 3709. Ostensible Agent

Judicial Council of California Civil Jury Instructions (2024 edition)

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3709.Ostensible Agent
[Name of plaintiff] claims that [name of defendant] is responsible for [name
of agent]’s conduct because [name of agent] 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] reasonably relied on [his/her/nonbinary
pronoun] belief.
New September 2003; Revised November 2019, November 2021
Directions for Use
Give this instruction with CACI No. 3701, Tort Liability Asserted Against
Principal - Essential Factual Elements, if the plaintiff is relying on the doctrine of
ostensible agency to establish the principal-agent relationship in CACI No. 3701.
For an instruction on ostensible agency in the physician-hospital context, see CACI
No. 3714, Ostensible Agency - Physician-Hospital Relationship.
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 an agent has ostensible authority is a question of fact and such
authority may be implied from circumstances.” (Pierson v. Helmerich & Payne
Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 635 [209 Cal.Rptr.3d 222].)
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‘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 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].)
“Ostensible agency is based on appearances, and turns on whether the [sic] ‘the
principal intentionally, or by want of ordinary care, causes a third person to
believe another to be his agent’ even though the third person is not actually an
agent. [¶] . . . Because a principal’s liability for the acts of an ostensible agent
rests on the notion that the principal should be estopped from creating the false
impression of agency, the appearance of agency ‘must be based on the acts or
declarations of the principal and not solely upon the agent’s conduct.’ (Pereda
v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 768 [301 Cal.Rptr.3d 690],
internal citations omitted, original italics.)
“Because ostensible agency focuses on what a reasonable person knowing what
plaintiff knew would have believed, we necessarily focus on what plaintiff knew
at the time of his injury.” (Pereda, supra, 85 Cal.App.5th at p. 771, original
italics.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 105, 154-159
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[4], 427.22[2] (Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent, §§ 182.04,
182.120 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:29 (Thomson Reuters)
CACI No. 3709 VICARIOUS RESPONSIBILITY
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