CACI No. 3962. Duty to Mitigate Damages for Future Lost Earnings

Judicial Council of California Civil Jury Instructions (2023 edition)

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3962.Duty to Mitigate Damages for Future Lost Earnings
[Name of plaintiff] is not entitled to recover damages for future economic
losses that [name of defendant] proves [name of plaintiff] will be able to
avoid by returning to gainful employment as soon as it is reasonable for
[him/her/nonbinary pronoun] to do so.
If you decide that [name of plaintiff] will be able to return to work, then
you must not award [him/her/nonbinary pronoun] any damages for the
amount [he/she/nonbinary pronoun] will be able to earn from future
gainful employment. 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] is reasonably able to earn
from alternate employment.
The resulting amount is [name of plaintiff]’s damages for future lost
New September 2003
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].)
“It is the employers burden ‘to affirmatively prove failure to mitigate as an
affirmative defense.’ (Mize-Kurzman v. Marin Community College Dist. (2012)
202 Cal.App.4th 832, 871 [136 Cal.Rptr.3d 259].)
“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.” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp.,
U.S.A. (2013) 221 Cal.App.4th 867, 884 [164 Cal.Rptr.3d 811].)
“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.)
“Had plaintiff actually retired and taken her retirement pension, we are
convinced the trial court would have been required to exclude evidence of
plaintiff’s retirement benefits as a collateral source. . . . [¶] It seems to us to
make little sense to allow introduction into evidence of retirement benefits that
plaintiff never received on the issue of mitigation where such evidence would
have been precluded under the collateral source rule had she actually received
the benefits. It appears the court viewed the issue as one of fact, akin to the
question whether plaintiff made reasonable efforts to mitigate her damages by
seeking comparable or substantially similar employment.” (Mize-Kurzman, supra,
202 Cal.App.4th at p. 877.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1798-1801
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-F, Mitigation
Of Damages (Avoidable Consequences Doctrine), ¶¶ 17:490-17:557 (The Rutter
4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expenses and
Economic Loss, § 52.10 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, §§ 177.46, 177.48
(Matthew Bender)

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