Presenter: Robin Seeley - California Courts
ud.ca.govRULESANDPROJECTS COMMITTEEOPEN MEETING AGENDAOpen to the Public (Cal. Rules of Court, rule 10.75(c)(1))THIS MEETING IS BEING RECORDEDDate:Time:Location:Public Call-In NumberTuesday, January 30, 201812:10 – 1:00 p.m.Conference Call1-877-820-7831/Participant Access Code: 8083403 (Listen Only)Meeting materials will be posted on the advisory body web page on the California Courts website at leastthree business days before the meeting.Agenda items are numbered for identification purposes only and will not necessarily be considered in theindicated order.I.OPENMEETING(CAL. RULESOFCOURT, RULE10.75(C)(1))Call to Order and Roll CallII.DISCUSSIONANDPOSSIBLEACTIONITEMSCIVIL JURY INSTRUCTIONSItem 01Civil Jury Instructions: Review revisions and new instructions (Action required – recommend forJudicial Council action)Presenter: Bruce GreenleeCRIMINAL JURY INSTRUCTIONSItem 02Criminal Jury Instructions: Review revised and new instructions (Action required – recommendfor Judicial Council action)Presenter: Robin Seeley
Meeting Agenda January 30, 2018Judicial AdministrationItem 03Judicial Council Forms: Technical Changes to Reflect Federal Poverty Guidelines (Actionrequired – recommend for Judicial Council action)Presenter: Susan McMullanIII.ADJOURNMENTAdjourn2 PageRules and Projects Committee
Item number: 01RUPRO ACTION REQUEST FORMRUPRO action requested:ApproveRUPRO Meeting: January 30, 2018Title of proposal (include amend/revise/adopt/approve form/rule numbers):Civil Jury Instructions (CACI): Approve Posting Online of Instructions With Minor Revisions (Action Required)Committee or other entity submitting the proposal:Advisory Commitee on Civil Jury InstructionsfStaff contact (name, phone and e-mail): Bruce Greenlee, Attorney, Legal Services 415-865-7698bruce.greenlee@jud.ca.govIdentify project(s) on the committee’s annual agenda that is the basis for this item:Approved by RUPRO:Project description from annual agenda: Maintaining and expanding CACI (the committee's ongoing project)If requesting July 1 or out of cycle, explain:Rules 2.1050(d) and 10.58(a) of the California Rules of Court require the advisory committee to update, amend, andadd topics to CACI on a regular basis. In October, RUPRO approved new procedures to add online only releases forCACI in odd-numbered months other than May and November, when full releases are presented to the Judicial Councilfor approval and then published in print by LexisNexis. This release will be numbered 31A and will be the first everonline-only release. Release 31 was approved in November 2017.Additional Information: (To facilitate RUPRO's review of your proposal, please include any relevant information notcontained in the attached summary.)
JUDICIAL COUNCIL OF CALIFORNIA.455 Golden Gate Avenue San Francisco, California 94102-3688Telephone 415-865-4200 Fax 415-865-4205 TDD 415-865-4272.MEMORANDUMDateAction RequestedJanuary 24, 2018Review and Approve Online Posting ofInstructions With Minor RevisionsToMembers of the Rules and Projects CommitteeDeadlineN/AFromAdvisory Committee on Civil Jury InstructionsHon. Martin J. Tangeman, ChairSubjectCivil Jury Instructions: Instructions WithMinor RevisionsContactBruce Greenlee, Attorney415-865-7698 phone415-865-4319 faxbruce.greenlee@jud.ca.govExecutive SummaryThe Advisory Committee on Civil Jury Instructions has completed revisions to the JudicialCouncil of California Civil Jury Instructions (CACI). This report addresses 31 instructions thathave only the types of revisions that the Judicial Council has given the Rules and ProjectsCommittee (RUPRO) final authority to approve—primarily instructions with only changes to theDirections for Use or additions to the Sources and Authority.RecommendationThe Advisory Committee on Civil Jury Instructions recommends that RUPRO approve forposting online 31 revised civil jury instructions, prepared by the advisory committee, that containchanges that do not require posting for public comment or Judicial Council approval. Effectivewith RUPRO’s approval, these instructions will be posted online on the California Courtswebsite and on Lexis and Westlaw.The 31 instructions presented for final RUPRO approval are attached at pages 6–133.
2Previous Council ActionAt the October 20, 2006, Judicial Council meeting, the Judicial Council approved authority forRUPRO to:Review and approve nonsubstantive technical changes and corrections and minorsubstantive changes unlikely to create controversy to Judicial Council ofCalifornia Civil Jury Instructions (CACI) and Criminal Jury Instructions(CALCRIM). 1Under the implementing guidelines that RUPRO adopted on December 19, 2006, titled JuryInstructions Corrections and Technical and Minor Substantive Changes, RUPRO has finalapproval authority over the following:(a) Additions of cases and statutes to the Sources and Authority;(b) Changes to statutory language quoted in Sources and Authority that are required bylegislative amendments, provided that the amendment does not affect the text of theinstruction itself; 2(c) Additions or changes to the Directions for Use; 3(d) Changes to instruction text that are nonsubstantive and unlikely to create controversy. Anonsubstantive change is one that does not affect or alter any fundamental legal basis of theinstruction;(e) Changes to instruction text required by subsequent developments (such as new cases orlegislative amendments), provided that the change, though substantive, is both necessary andunlikely to create controversy; and(f) Revocation of instructions for which any fundamental legal basis of the instruction is nolonger valid because of statutory amendment or case law.Rationale for RecommendationThe Task Force on Jury Instructions was appointed in 1997 on the recommendation of the BlueRibbon Commission on Jury System Improvement. The mission of the task force was to draftcomprehensive, legally accurate jury instructions that are readily understood by the averagejuror. In July 2003, the council approved its civil jury instructions for initial publication inSeptember 2003. The Advisory Committee on Civil Jury Instructions is charged withmaintaining and updating those instructions. 41Judicial Council of Cal., Rules and Projects Committee, Jury Instructions: Approve New Procedure for RUPROReview and Approval of Changes in the Jury Instructions (Sept. 12, 2006), p. 1.2In light of the committee’s 2014 decision to remove verbatim quotes of statutes, rules, and regulations from CACI,this category (b) is now mostly moot. It still applies if a statute, rule, or regulation is revoked, or if subdivisions arerenumbered.3The committee only presents nonsubstantive changes to the Directions for Use for RUPRO’s final approval.Substantive changes are posted for public comment and presented to the council for approval.4See Cal. Rules of Court, rules 2.1050(d), 10.58(a).2
3Online-only processThis is the committee’s first proposed online-only release, which has been designated as Release31A. 5 On October 24, 2017, RUPRO approved adding four additional annual CACI releases inJanuary, March, July, and September. 6Official publisher LexisNexis will process the manuscript for electronic delivery. The releasewill be posted online on Lexis Advance. CACI licensees Thomson Reuters andAmericanLegalNet will also post the release on Westlaw and FormsWorkFlow, respectively. Thepublishers may, but are not required to, also issue print editions of the release. The instructionswill also be posted on the judicial branch’s public websiteat www.courts.ca.gov/partners/317.htm.The January and March online-only instructions will be collected and included in the May 2018print CACI supplement. The July and September online-only instructions will be collected andincluded in the 2019 edition.Overview of updatesOf the 31 revised instructions that are presented for final RUPRO approval: 19 have revisions under category (a) above only (additional cases added to Sources andAuthority);10 have revisions under category (c) above only (additions or changes to the Directions forUse);1 (CACI No. 1203) falls under both categories (a) and (c) (additions to Sources andAuthority and additions or changes to the Directions for Use); and1 (CACI No. 4002) falls under both categories (c) and (e) (additions or changes to theDirections for Use and changes to the instruction required by subsequent developments).Standards for adding case excerpts to Sources and AuthorityThe standards approved by the advisory committee for adding case excerpts to the Sources andAuthority are as follows:1. CACI Sources and Authority are in the nature of a digest. Entries should be direct quotesfrom cases. However, all cases that may be relevant to the subject area of an instruction neednot be included, particularly if they do not involve a jury matter.2. Each legal component of the instruction should be supported by authority—either statutory orcase law.3. Authority addressing the burden of proof should be included.4. Authority addressing the respective roles of judge and jury (questions of law and questions offact) should be included.5The new 2018 edition, approved November 2017, was Release 31.6Full substantive releases will continue to be presented to RUPRO for recommendation for Judicial Councilapproval in May (Release 32) and November (Release 33). These releases will continue to be posted for publiccomment.3
45. Only one case excerpt should be included for each legal point.6. California Supreme Court authority should always be included, if available.7. If no Supreme Court authority is available, the most recent California appellate courtauthority for a point should be included.8. A U.S. Supreme Court case should be included on any point for which it is the controllingauthority.9. A Ninth Circuit Court of Appeals case may be included if the case construes California lawor federal law that is the subject of the CACI instruction.10. Other cases may be included if deemed particularly useful to the users.11. The fact that the committee chooses to include a case excerpt in the Sources and Authoritydoes not mean that the committee necessarily believes that the language is binding precedent.The standard is simply whether the language would be useful or of interest to users.The advisory committee has deleted material from the Sources and Authority that duplicatesother material that is already included or is to be added.Nonfinal cases and incomplete citationsAll cases included in this release are final. There are no incomplete citations.Sources and Authority format cleanupCACI format requires that case excerpts in the Sources and Authority be of directly quotedmaterial from the case. In some of the series, this format was not uniformly observed initially,and some excerpts are in the form of a legal statement with a citation rather than a directquotation. Where found in instructions otherwise included, these out-of-format excerpts havebeen converted to direct quotations.CACI format also orders statutes, rules, and regulations first; then case excerpts; and then anyother authorities, such as a Restatement excerpt. Excerpts that were out of order have beenmoved to the proper location.Comments, Alternatives Considered, and Policy ImplicationsBecause the changes to these instructions do not change the legal effect of the instructions in anyway, they were not circulated for public comment.Rules 2.1050 and 10.58 of the California Rules of Court specifically charge the advisorycommittee to regularly review case law and statutes; to make recommendations to the JudicialCouncil for updating, amending, and adding topics to CACI; and to submit its recommendationsto the council for approval. The proposed revisions and additions meet this responsibility. Thereare no alternatives to be considered and no policy implications.Implementation Requirements, Costs, and Operational ImpactsThere are no implementation costs. To the contrary, under its publication agreement with theJudicial Council, the official publisher, LexisNexis, will pay royalties to the council. Withrespect to other commercial publishers, the council will register the copyright in this work andwill continue to license its publication of the instructions under provisions that govern accuracy,4
5completeness, attribution, copyright, fees and royalties, and other publication matters. Tocontinue to make the instructions freely available for use and reproduction by parties, attorneys,and the public, the council will provide a broad public license for their noncommercial use andreproduction.Attachments1. Full text of 31 instructions, at pages 6–1335
6CIVIL JURY INSTRUCTIONSTABLE OF CONTENTSCONTRACTS SERIES333. Affirmative Defense—Economic Duress(Directions for Use Revised and Authority Added)350. Introduction to Contract Damages (Authority Added)p. 8p. 11PREMISES LIABILITY SERIES1001. Basic Duty of Care (Authority Added)p. 14PRODUCTS LIABILITY SERIES1200. Strict Liability—Essential Factual Elements (Authority Added)p. 181203. Strict Liability—Design Defect—Consumer Expectation Test—Essential Factual Elements (Directions for Use Revised and Authority Added)p. 221204. Strict Liability—Design Defect—Risk-Benefit Test—Essential Factual Elements—Shifting Burden of Proof (Directions for Use Revised)p. 271222. Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements (Authority Added)p. 31DEFAMATION SERIES1700. Defamation per se—Essential Factual Elements(Public Officer/Figure and Limited Public Figure) (Directions for Use Revised)p. 341701. Defamation per quod—Essential Factual Elements(Public Officer/Figure and Limited Public Figure) (Directions for Use Revised)p. 411702. Defamation per se—Essential Factual Elements(Private Figure—Matter of Public Concern) (Directions for Use Revised)p. 451703. Defamation per quod—Essential Factual Elements(Private Figure—Matter of Public Concern) (Directions for Use Revised)p. 501704. Defamation per se—Essential Factual Elements(Private Figure—Matter of Private Concern) (Directions for Use Revised)p. 541705. Defamation per quod—Essential Factual Elements(Private Figure—Matter of Private Concern) (Directions for Use Revised)p. 581707. Fact Versus Opinion (Authority Added)p. 626
71723. Common Interest Privilege—Malice (Authority Added)p. 65INSURANCE LITIGATION SERIES2308. Affirmative Defense Misrepresentation or Concealment in Insurance Application(Authority Added)p. 682330. Implied Obligation of Good Faith and Fair Dealing Explained (Authority Added)p. 722331. Breach of the Implied Obligation of Good Faith and Fair Dealing—Failure or Delay in Payment (First Party)—Essential Factual Elements(Authority Added)p. 76FAIR EMPLOYMENT AND HOUSING ACT SERIES2500. Disparate Treatment—Essential Factual Elements (Authority Added)p. 812505. Retaliation—Essential Factual Elements (Authority Added)p. 872512. Limitation on Remedies—Same Decision (Authority Added)p. 942513. Business Judgment (Authority Added)p. 98LABOR CODE ACTIONS SERIES2701. Nonpayment of Minimum Wage—Essential Factual Elements (Authority Added)p. 1002704. Damages—Waiting-Time Penalty for Nonpayment of Wages (Authority Added)p. 1032720. Affirmative Defense—Nonpayment of Overtime—Executive Exemption(Authority Added)p. 1072721. Affirmative Defense—Nonpayment of Overtime—Administrative Exemption(Authority Added)p. 112LANTERMAN PETRIS SHORT ACT SERIES4002. “Gravely Disabled” Explained (Instruction and Directions for Use Revised)p. 117UNLAWFUL DETAINER SERIES4321. Affirmative Defense—Retaliatory Eviction—Tenant’s Complaint(Directions for Use Revised)p. 1204322. Affirmative Defense—Retaliatory Eviction—Engaging in Legally Protected Activity(Directions for Use Revised)p. 124CONSUMER LEGAL REMEDIES ACT SERIES4700. Consumers Legal Remedies Act—Essential Factual Elements (Authority Added)p. 127CONCLUDING INSTRUCTIONS SERIES5012. Introduction to Special Verdict Form (Authority Added)p. 1317
8Official File333. Affirmative Defense—Economic Duress[Name of defendant] claims that there was no contract because [his/her/its] consent was given underduress. To succeed, [name of defendant] must prove all of the following:1.That [name of plaintiff] used a wrongful act or wrongful threat to pressure [name ofdefendant] into consenting to the contract;2.That a reasonable person in [name of defendant]’s position would have believed thathe or she had no reasonable alternative except to consent to the contract; and3.That [name of defendant] would not have consented to the contract without thewrongful act or wrongful threat.An act or a threat is wrongful if [insert relevant rule, e.g., “a bad-faith breach of contract isthreatened”].If you decide that [name of defendant] has proved all of the above, then no contract was created.New September 2003; Revised December 2005, June 2011, December 2011Directions for UseDifferent elements may apply if economic duress is alleged to avoid an agreement to settle a debt. (SeePerez v. Uline, Inc. (2007) 157 Cal.App.4th 953, 959–960 [68 Cal.Rptr.3d 872].)Element 2 requires that the defendant have had “no reasonable alternative” other than to consent.Economic duress to avoid a settlement agreement may require that the creditor be placed in danger ofimminent bankruptcy or financial ruin. (See Rich & Whillock, Inc. v. Ashton Development, Inc. (1984)157 Cal.App.3d 1154, 1156–1157, 204 Cal.Rptr. 86].) At least one court has stated this standard in acase not involving a settlement (see Uniwill v. City of Los Angeles (2004) 124 Cal.App.4th 537, 545 [21Cal.Rptr.3d 464]), though most cases do not require that the only alternative be bankruptcy or financialruin. (See, e.g., Chan v. Lund (2010) 188 Cal.App.4th 1159, 1173–1174 [116 Cal.Rptr.3d 122].)In the next-to-last paragraph, state the rule that makes the alleged conduct wrongful. (See Restatement 2dof Contracts, § 176, When a Threat is Improper.) The conduct must be something more than the breach orthreatened breach of the contract itself. An act for which a party has an adequate legal remedy is notduress. (River Bank America v. Diller (1995) 38 Cal.App.4th 1400, 1425 [45 Cal.Rptr.2d 790].)Sources and Authority When Consent Not Freely Given. Civil Code sections 1567, 1568. “The doctrine of ‘economic duress’ can apply when one party has done a wrongful act which isCopyright Judicial Council of California8
9Official Filesufficiently coercive to cause a reasonably prudent person, faced with no reasonable alternative, toagree to an unfavorable contract. The party subjected to the coercive act, and having no reasonablealternative, can then plead ‘economic duress’ to avoid the contract.” (CrossTalk Productions, Inc. v.Jacobson (1998) 65 Cal.App.4th 631, 644 [76 Cal.Rptr.2d 615], internal citation omitted.) The nonexistence of a “reasonable alternative” is a question of fact. (CrossTalk Productions, Inc.,supra, 65 Cal.App.4th at p. 644.) “ ‘At the outset it is helpful to acknowledge the various policy considerations which are involved incases involving economic duress. Typically, those claiming such coercion are attempting to avoid theconsequences of a modification of an original contract or of a settlement and release agreement. Onthe one hand, courts are reluctant to set aside agreements because of the notion of freedom of contractand because of the desirability of having private dispute resolutions be final. On the other hand, thereis an increasing recognition of the law’s role in correcting inequitable or unequal exchanges betweenparties of disproportionate bargaining power and a greater willingness to not enforce agreementswhich were entered into under coercive circumstances.’ ” (Rich & Whillock, Inc., supra, 157Cal.App.3d at p. 1158.) “ ‘As it has evolved to the present day, the economic duress doctrine is not limited by early statutoryand judicial expressions requiring an unlawful act in the nature of a tort or a crime. I
Jan 30, 2018 · RULES AND PROJECTS COMMITTEE OPEN MEETING AGENDA Open to the Public (Cal. Rules of Court, rule 10.75(c)(1)) THIS MEETING IS BEING RECORDE
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