CACI 1503 Affirmative Defense—Proceeding Initiated by Public Employee Within Scope of Employment (Gov. Code, § 821.6)
California Civil Jury Instructions CACI
1503 Affirmative Defense—Proceeding Initiated by Public Employee Within Scope of Employment (Gov. Code, § 821.6)
[Name of public entity defendant] claims that it cannot be held responsible for [name of plaintiff]’s harm, if any, because the [specify proceeding, e.g., civil action] was initiated by its employee who was acting within the scope of [his/her/nonbinary pronoun] employment. To establish this defense, [name of defendant] must prove that [name of employee] was acting within the scope of [his/her/nonbinary pronoun] employment.
New September 2003; Renumbered from CACI No. 1506 June 2013; Revised May 2018
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Directions for Use
Give this instruction if there is an issue of fact as to whether the proceeding giving rise to the alleged malicious prosecution claim was initiated as a governmental action. Government Code section 821.6 provides immunity from liability for malicious prosecution for a public employee who is acting within the scope of employment, even if the employee acts maliciously and without probable cause. If the employee is immune, then there can be no vicarious liability on the entity. (Gov. Code, § 815.2.) This immunity is not unqualified, however; it applies only if the employee was acting within the scope of employment. (Tur v. City of Los Angeles (1996) 51 Cal.App.4th 897, 904 [59 Cal.Rptr.2d 470].)
For an instruction on scope of employment, see CACI No. 3720, Scope of Employment, in the Vicarious Responsibility series.
Sources and Authority
•Public Entity Vicarious Liability for Acts of Employee. Government Code section 815.2.
•Public Employee Immunity. Government Code section 821.6.
•“The defendants did not enjoy an unqualified immunity from suit. Their immunity would have depended on their proving by a preponderance of the evidence [that] they were acting within the scope of their employment in doing the acts alleged to constitute malicious prosecution.” (Tur, supra, 51 Cal.App.4th at p. 904 [failure to instruct jury under section 821.6 was prejudicial error].)