CACI No. 3961. Duty to Mitigate Damages for Past Lost Earnings

Judicial Council of California Civil Jury Instructions (2023 edition)

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3961.Duty to Mitigate Damages for Past Lost Earnings
[Name of plaintiff] is not entitled to recover damages for economic losses
that [name of defendant] proves [name of plaintiff] could have avoided by
returning to gainful employment as soon as it was reasonable for [him/
her/nonbinary pronoun] to do so.
To calculate the amount of damages you must:
1. Determine the amount [name of plaintiff] would have earned from
the job [he/she/nonbinary pronoun] held at the time
[he/she/nonbinary pronoun] was injured; and
2. Subtract the amount [name of plaintiff] earned or could have
earned by returning to gainful employment.
The resulting amount is [name of plaintiff]’s damages for past lost
New September 2003; Revised December 2015
Directions for Use
For an instruction on mitigation of damages involving personal injury, see CACI
No. 3930, Mitigation of Damages (Personal Injury).
Sources and Authority
“A plaintiff has a duty to mitigate damages and cannot recover losses it could
have avoided through reasonable efforts.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46
Cal.App.4th 1559, 1568 [54 Cal.Rptr.2d 468].)
“The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers
damage as a result of either a breach of contract or a tort has a duty to take
reasonable steps to mitigate those damages and will not be able to recover for
any losses which could have been thus avoided.’ A plaintiff may not recover for
damages avoidable through ordinary care and reasonable exertion. The duty to
mitigate damages does not require an injured party to do what is unreasonable or
impracticable. ‘The rule of mitigation of damages has no application where its
effect would be to require the innocent party to sacrifice and surrender important
and valuable rights.’ (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th
1686, 1691 [32 Cal.Rptr.2d 329], internal citations omitted.)
“Whether a plaintiff acted reasonably to mitigate damages, however, is a factual
matter to be determined by the trier of fact, and is reviewed under the substantial
evidence test. The burden of proving a plaintiff failed to mitigate damages,
however, is on the defendant, not the other way around.” (Powerhouse
Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th
867, 884 [164 Cal.Rptr.3d 811].)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 945
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798
4 Levy et al., California Torts, Ch. 53, Mitigation of Damages (Avoidable
Consequences) and the Collateral Source Rule, § 53.02 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.48
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.170 et seq.
(Matthew Bender)

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