CACI No. 4103. Duty of Confidentiality - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
4103.Duty of Confidentiality - Essential Factual Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed
by [name of defendant]’s breach of the fiduciary duty of confidentiality.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [name of plaintiff]’s
[agent/stockbroker/real estate agent/real estate broker/corporate
officer/partner/[insert other fiduciary relationship]];
2. That [name of defendant] had information relating to [name of
plaintiff] that [he/she/nonbinary pronoun/it] knew or should have
known was confidential;
3. That [name of defendant] [insert one of the following:]
3. [used [name of plaintiff]’s confidential information for [his/her/
nonbinary pronoun/its] own benefit;]
3. [communicated [name of plaintiff]’s confidential information to
third parties;]
4. That [name of plaintiff] did not give informed consent to [name of
defendant]’s conduct;
5. That the confidential information was not a matter of general
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2006
Directions for Use
The instructions in this series are intended for lawsuits brought by or on behalf of
the principal. They also assume that the plaintiff is bringing a legal cause of action,
not an action in equity. (See Van de Kamp v. Bank of America (1988) 204
Cal.App.3d 819 [251 Cal.Rptr. 530].)
For a breach of fiduciary duty instruction in cases involving attorney defendants, see
CACI No. 4106, Breach of Fiduciary Duty by Attorney - Essential Factual
While the advisory committee has not included “employee” as an option for
identifying the defendant agent in element 1, there may be cases in which certain
employees qualify as “agents,” thereby subjecting them to liability for breach of
fiduciary duty.
A cause of action relating to the misuse of confidential information may also be
brought, in certain circumstances, against non-fiduciaries. This instruction may be
modified to apply to such cases.
Sources and Authority
Restatement Second of Agency, section 395, states: “Unless otherwise agreed, an
agent is subject to a duty to the principal not to use or to communicate
information confidentially given him by the principal or acquired by him during
the course of or on account of his agency or in violation of his duties as agent,
in competition with or to the injury of the principal, on his own account or on
behalf of another, although such information does not relate to the transaction in
which he is then employed, unless the information is a matter of general
‘The law of confidential relationships governs duties of trust that one is not
obligated to assume. Once a person commits himself to a confidential
relationship, the law requires him to fulfill the duties attendant to the
relationship. Confidential relations protect the trust that is implicit in
relationships between employers and employees, between masters and servants,
and between principals and agents, rather than the information that may pass
between these parties.’ (Balboa Ins. Co. v. Trans Global Equities (1990) 218
Cal.App.3d 1327, 1350-1351 [267 Cal.Rptr. 787], original italics, internal
citation omitted.)
Secondary Sources
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent,
§ 427.12[3] (Matthew Bender)

© Judicial Council of California.