CACI No. 3711. Partnerships

Judicial Council of California Civil Jury Instructions (2020 edition)

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3711.Partnerships
A partnership and each of its partners are responsible for the wrongful
conduct of a partner acting within the scope of the partner’s authority.
You must decide whether a partnership existed in this case. A
partnership is a group of two or more persons who own a business in
which all the partners agree to share the profits and losses. A
partnership can be formed by a written or oral agreement or by an
agreement implied by the parties’ conduct.
New September 2003; Revised May 2020
Directions for Use
This instruction is not intended for cases involving limited liability partnerships.
Sources and Authority
• Formation of Partnership. Corporations Code section 16202.
• Liability of Partnership. Corporations Code section 16305(a).
• “Under traditional legal concepts the partnership is regarded as an aggregate of
individuals with each partner acting as agent for all other partners in the
transaction of partnership business, and the agents of the partnership acting as
agents for all of the partners.” (Marshall v. International Longshoremen’s and
Warehousemen’s Union (1962) 57 Cal.2d 781, 783 [22 Cal.Rptr. 211, 371 P.2d
987].)
• “[T]he partners of a partnership are jointly and severally liable for the conduct
and torts injuring a third party committed by one of the partners.” (Black v.
Sullivan (1975) 48 Cal.App.3d 557, 569 [122 Cal.Rptr. 119], internal citations
omitted.)
• “ ‘[A] partnership need not be evidenced by writing [citation]. It is immaterial
that the parties do not designate the relationship as a partnership or realize that
they are partners, for the intent may be implied from their acts [citations].’ ‘In
that sense, any partnership without a written agreement is a “de facto”
partnership.’ ‘[T]he question of partnership is one of fact . . . .’ ” (Eng v. Brown
(2018) 21 Cal.App.5th 675, 694 [230 Cal.Rptr.3d 771], internal citation omitted.)
• “Ordinarily the existence of a partnership is evidenced by the right of the
respective parties to participate in the profits and losses and in the management
of the business.” (Eng, supra, 21 Cal.App.5th at p. 694.)
• “The CACI instructions cited by the court [CACI Nos. 3711, 3712] are correct
and were pertinent to the jury’s question regarding partnership formation.” (Eng,
supra, 21 Cal.App.5th at p. 706.)
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Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Partnership, § 43
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.06 (Matthew Bender)
35 California Forms of Pleading and Practice, Ch. 402, Partnerships: Actions
Between General Partners and Partnership, § 402.12 (Matthew Bender)
17 California Points and Authorities, Ch. 170, Partnerships, § 170.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts, §§ 3:36-3:37 (Thomson Reuters)
CACI No. 3711 VICARIOUS RESPONSIBILITY
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