CACI No. 3903P. Damages From Employer for Wrongful Discharge (Economic Damage)
Judicial Council of California Civil Jury Instructions (2024 edition)
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3903P.Damages From Employer for Wrongful Discharge
(Economic Damage)
[Insert number, e.g., “3.”] Past and future lost earnings.
If you find that [name of defendant] [constructively] discharged [name of
plaintiff] in violation of [specify, e.g., public policy and the Fair Employment
and Housing Act], then you must decide the amount of past and future
lost earnings that [name of plaintiff] has proven [he/she/nonbinary
pronoun] is entitled to recover, if any. To make that decision, you must:
1. Decide the amount that [name of plaintiff] would have earned up
to today, including any benefits and pay increases; and
2. Add the present cash value of any future wages and benefits that
[he/she/nonbinary pronoun] would have earned for the length of
time the employment with [name of defendant] was reasonably
certain to continue.
In determining the period that [name of plaintiff]’s employment was
reasonably certain to have continued, you should consider such things
as:
(a) [Name of plaintiff]’s age, work performance, and intent
regarding continuing employment with [name of defendant];
(b) [Name of defendant]’s prospects for continuing the operations
involving [name of plaintiff]; and
(c) Any other factor that bears on how long [name of plaintiff]
would have continued to work.
New September 2003; Revised and Renumbered from CACI No. 2433 November
2018
Directions for Use
Give this instruction for any claim in which the plaintiff seeks to recover damages
for past and future lost earnings from an employer for a wrongful termination of
employment, for example in violation of public policy (see CACI No. 2400 et seq.)
or under the Fair Employment and Housing Act (see CACI No. 2500 et seq.)
Include “constructively” in the opening paragraph if the plaintiff alleges constructive
discharge instead of an actual discharge. (See CACI No. 2510, “Constructive
Discharge” Explained.)
This instruction should be followed by CACI No. 3963, Affırmative
Defense - Employee’s Duty to Mitigate Damages, if the employee’s duty to mitigate
damages is at issue. Also give CACI No. 3904A, Present Cash Value, and CACI
No. 3904B, Use of Present-Value Tables.
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Other types of tort damages may be available to a plaintiff. For an instruction on
emotional distress damages, see CACI No. 3905A, Physical Pain, Mental Suffering,
and Emotional Distress (Noneconomic Damage). See punitive damages instructions
in the Damages series (CACI No. 3940 et seq.).
Sources and Authority
• Standard for Punitive Damages. Civil Code section 3294(a).
• Employer Liability for Punitive Damages. Civil Code section 3294(b).
• A tortious termination subjects the employer “ ‘to liability for compensatory and
punitive damages under normal tort principles.’ ” (Gantt v. Sentry Insurance
(1992) 1 Cal.4th 1083, 1101 [4 Cal.Rptr.2d 874, 824 P.2d 680], internal citation
omitted.)
• “The general rule is that the measure of recovery by a wrongfully discharged
employee is the amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has earned or
with reasonable effort might have earned from other employment.” (Parker v.
Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737,
474 P.2d 689], internal citations omitted; see Smith v. Brown-Forman Distillers
Corp. (1987) 196 Cal.App.3d 503, 518 [241 Cal.Rptr. 916].)
• “A plaintiff may recover for detriment reasonably certain to result in the future.
While there is no clearly established definition of ‘reasonable certainty,’ evidence
of future detriment has been held sufficient based on expert medical opinion
which considered the plaintiff’s particular circumstances and the expert’s
experience with similar cases.” (Bihun v. AT&T Information Systems, Inc. (1993)
13 Cal.App.4th 976, 995 [16 Cal.Rptr.2d 787], internal citations omitted,
disapproved of on another ground in Lakin v. Watkins Associated Industries
(1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)
• “[I]t is our view that in an action for wrongful discharge, and pursuant to the
present day concept of employer-employee relations, the term ‘wages’ should be
deemed to include not only the periodic monetary earnings of the employe (sic)
but also the other benefits to which he is entitled as a part of his compensation.”
(Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463 P.2d
426].)
• In determining the period that plaintiff’s employment was reasonably certain to
have continued, the trial court took into consideration plaintiff’s “ ‘physical
condition, his age, his propensity for hard work, his expertise in managing
defendants’ offices, the profit history of his operation, [and] the foreseeability of
the continued future demand for tax return service to small taxpayers . . . .’ ”
(Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr.
169].)
• In adding subdivision (b) to section 3294 in 1980, “[t]he drafters’ goals were to
avoid imposing punitive damages on employers who were merely negligent or
reckless and to distinguish ordinary respondeat superior liability from corporate
DAMAGES CACI No. 3903P
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liability for punitive damages.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563,
572 [88 Cal.Rptr.2d 19, 981 P.2d 944], see Weeks v. Baker & McKenzie (1998)
63 Cal.App.4th 1128, 1150-1151 [74 Cal.Rptr.2d 510].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B, Contract
Damages, ¶¶ 17:237, 17:362, 17:365 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy
Violations, §§ 5.64-5.67
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.08[2] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.18, 249.50-249.55, 249.80-249.81, 249.90
(Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, §§ 100.41-100.59B (Matthew Bender)
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