CACI No. VF-4602. Whistleblower Protection - Affirmative Defense of Same Decision (Lab. Code, §§ 1102.5, 1102.6)

Judicial Council of California Civil Jury Instructions (2020 edition)

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VF-4602.Whistleblower Protection - Affirmative Defense of Same
Decision (Lab. Code, §§ 1102.5, 1102.6)
We answer the questions submitted to us as follows:
1. Was [name of defendant][name of plaintiff]’s employer?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
2. Did [[name of plaintiff] disclose/[name of defendant] believe that
[name of plaintiff] [had disclosed/might disclose]] to a [government
agency/law enforcement agency/person with authority over [name
of plaintiff]/ [or] an employee with authority to investigate,
discover, or correct legal [violations/noncompliance]] that [specify
information disclosed]?
2. Yes No
2. If your answer to question 2 is yes, then answer question 3. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
[3. Did [name of plaintiff] have reasonable cause to believe that the
information disclosed [a violation of a [state/federal] statute/[a
violation of/noncompliance with] a [local/state/federal] rule or
regulation]?
[3. Yes No
[3. If your answer to question 3 is yes, then answer question 4. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.]
4. Did [name of defendant] [discharge/specify other adverse action]
[name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
5. Was [name of plaintiff]’s disclosure of information a contributing
factor in [name of defendant]’s decision to [discharge/other adverse
action] [him/her/nonbinary pronoun]?
5. Yes No
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5. If your answer to question 5 is yes, then answer question 6. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
6. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
6. Yes No
6. If your answer to question 6 is yes, then answer question 7. If you
answered no, stop here, answer no further questions, and have
the presiding juror sign and date this form.
7. Would [name of defendant] have [discharged/specify other adverse
action][name of plaintiff] anyway at that time, for legitimate,
independent reasons?
7. Yes No
7. If your answer to question 7 is no, then answer question 8. If you
answered yes, stop here, answer no further questions, and have
the presiding juror sign and date this form.
8. What are [name of plaintiff]’s damages?
[a. Past economic loss
[lost earnings $]
[lost profits $]
[medical expenses $]
[other past economic loss $]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $]
[medical expenses $]
[other future economic loss $]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. Future noneconomic loss, including [physical
pain/mental suffering:] $ ]
[d. TOTAL $
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Signed: Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
verdict in the courtroom.
New December 2015; Revised December 2016, May 2020
Directions for Use
This verdict form is based on CACI No. 4603, Whistleblower Protection - Essential
Factual Elements, and CACI No. 4604, Affırmative Defense - Same Decision.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Questions 2 and 3 may be replaced with one of the other options for elements 2 and
3 in CACI No. 4603. Omit question 3 entirely, however, if the plaintiff allegedly
refused to participate in an activity that would result in a violation or
noncompliance with a statute, rule, or regulation. (Nejadian v. County of Los
Angeles (2019) 40 Cal.App.5th 703, 719 [253 Cal.Rptr.3d 404].) If the plaintiff
allegedly refused to participate in an activity that would result in a violation or
noncompliance with a statute, rule, or regulation, replace “disclosure of information”
in question 5 with “refusal to [specify activity employee refused to participate in and
what specific statute, rule, or regulation would be violated by that activity].”
Questions 4 and 5 may be modified to allege constructive discharge. Questions 2
through 5 of CACI No. VF-2408, Constructive Discharge in Violation of Public
Policy - Plaintiff Required to Endure Intolerable Conditions for Improper Purpose
That Violates Public Policy, should be adapted and included in such a case.
Question 7 presents the employer’s affirmative defense that it would have made the
same decision anyway for legitimate reasons even though the jury finds that
retaliation for whistleblowing was also a contributing factor for the adverse action.
Question 7 must be proved by clear and convincing evidence. (See Lab. Code,
§ 1102.6.)
If specificity is not required, users do not have to itemize all the damages listed in
question 8 and do not have to categorize “economic” and “noneconomic” damages,
especially if it is not a Proposition 51 case. The breakdown of damages is optional
depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
VF-4602 WHISTLEBLOWER PROTECTION
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prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-4603-VF-4699. Reserved for Future Use
WHISTLEBLOWER PROTECTION VF-4602
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