California Civil Jury Instructions (CACI) (2017)

3710. Ratification

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3710.Ratification
[Name of plaintiff] claims that [name of defendant] is responsible for the
harm caused by [name of agent]’s conduct because [name of defendant]
approved that conduct after it occurred. If you find that [name of agent]
harmed [name of plaintiff], you must decide whether [name of defendant]
approved that conduct. To establish [his/her] claim, [name of plaintiff]
must prove all of the following:
1. That [name of agent], although not authorized to do so,
purported to act on behalf of [name of defendant];
2. That [name of defendant] learned of [name of agent]’s
unauthorized conduct, and all of the material facts involved in
the unauthorized transaction, after it occurred; and
3. That [name of defendant] then approved [name of agent]’s
conduct.
Approval can be shown through words, or it can be inferred from a
person’s conduct. [Approval can be inferred if [name of defendant]
voluntarily keeps the benefits of [name of agent]’s unauthorized conduct
after [he/she/it] learns of it.]
New September 2003; Revised June 2016
Directions for Use
This instruction is for use in a traditional principal-agent relationship. The last
bracketed sentence should be read only if it is appropriate to the facts of the case.
This instruction should not be given without modifications in an employment law
case, in which an employee seeks to hold the employer liable for the tortious
conduct of a supervisor or other employee. Ratification involves different
considerations in employment law. For example, element 1 should not be given
because it is not necessary for the culpable employee to purport to act on behalf of
the employer. (See Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258,
271–272 [150 Cal.Rptr.3d 861] [CACI 3710 given without element 1].)
For an instruction for use for governmental entity liability in a civil rights case
under Title 42 United States Code section 1983, see CACI No. 3004, Local
Government Liability—Act or Ratification by Offıcial With Final Policymaking
Authority—Essential Factual Elements.
Sources and Authority
• Agency Created by Ratification. Civil Code section 2307.
Ratification by Acceptance of Benefits. Civil Code section 2310.
• Partial Ratification. Civil Code section 2311.
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• Vicarious Liability for Ratified Acts. Civil Code section 2339.
• “Ratification is the subsequent adoption by one person of an act which another
without authority assumed to do as his agent.” (Anderson v. Fay Improv. Co.
(1955) 134 Cal.App.2d 738, 748 [286 P.2d 513].)
• “ ‘[S]ince ratification contemplates an act by one person in behalf of another,
there must exist at the time the unauthorized act was done a relationship, either
actual or assumed, of principal and agent, between the person alleged to have
ratified and the person by whom the unauthorized act was done.’ ” (Anderson,
supra, 134 Cal.App.2d at p. 748, citing 2 California Jurisprudence 2d 741,
section 83.)
• “ ‘Furthermore, the prevailing view is that there can be no ratification if the
person who performed the unauthorized act did not at the time profess to be an
agent.’ ” (Anderson, supra, 134 Cal.App.2d at p. 748, citing 2 California
Jurisprudence 2d 741, section 83.)
• “Ratification is the voluntary election by a person to adopt in some manner as
his own an act which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if originally
authorized by him. A purported agent’s act may be adopted expressly or it may
be adopted by implication based on conduct of the purported principal from
which an intention to consent to or adopt the act may be fairly inferred,
including conduct which is ‘inconsistent with any reasonable intention on his
part, other than that he intended approving and adopting it.’ ” (Rakestraw v.
Rodrigues (1972) 8 Cal.3d 67, 73 [104 Cal.Rptr. 57, 500 P.2d 1401].)
• “Ratification is essentially a matter of assent. Consequently, a principal is not
bound by ratification unless he acts with knowledge of all the material facts
involved in the unauthorized transaction, particularly with knowledge of the acts
of the person who assumed to act as his agent. This knowledge is equally
necessary whether the ratification be express or implied.” (Bate v. Marsteller
(1959) 175 Cal.App.2d 573, 582 [346 P.2d 903].)
• “Ratification is the subsequent adoption by one claiming the benefits of an act,
which without authority, another has voluntarily done while ostensibly acting as
the agent of him who affirms the act and who had the power to confer
authority. A principal cannot split an agency transaction and accept the benefits
thereof without the burdens.” (Reusche v. California Pacific Title Ins. Co.
(1965) 231 Cal.App.2d 731, 737 [42 Cal.Rptr. 262], internal citation omitted.)
• “[A]n employer may be liable for an employee’s act where the employer . . .
subsequently ratified an originally unauthorized tort. [Citations.] The failure to
discharge an employee who has committed misconduct may be evidence of
ratification. [Citation.] The theory of ratification is generally applied where an
employer fails to investigate or respond to charges that an employee committed
an intentional tort, such as assault or battery. [Citations.] Whether an employer
has ratified an employee’s conduct is generally a factual question. [Citation.]”
(Ventura, supra, 212 Cal.App.4th at p. 272.)
CACI No. 3710 VICARIOUS RESPONSIBILITY
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• “On this issue, the jury was instructed that in order to establish her claim that
defendants were responsible for [supervisor]’s conduct, [plaintiff] ‘must prove
. . . that [defendants] learned of [supervisor]’s conduct after it occurred,’ and
that ‘defendants approved [supervisor]’s conduct.’ The instruction concluded,
‘Approval can be shown through words, or it can be inferred from a person’s
conduct.’ ” [¶] Defendants contend that the instruction was erroneous because it
did not tell the jury that there is ratification only if the employee intended to act
on behalf of the employer, the employer actually knows that the wrongful
conduct occurred, and the employer benefitted from the conduct, and that a
disputed allegation is not actual knowledge. . . . We can see no error.”
(Ventura, supra, 212 Cal.App.4th at pp. 271–272.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 139–143
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04[7] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties
for Conduct of Employees, §§ 30.02, 30.07 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, § 248.13 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.18 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.21 et seq. (Matthew Bender)
1 California Civil Practice: Torts § 3:4 (Thomson Reuters)
VICARIOUS RESPONSIBILITY CACI No. 3710
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