CACI 1510 Affirmative Defense—Reliance on Counsel

California Civil Jury Instructions CACI

1510 Affirmative Defense—Reliance on Counsel

[Name of defendant] claims that [he/she/nonbinary pronoun] had reasonable grounds for [causing or continuing the criminal proceeding/bringing or continuing a [lawsuit/administrative proceeding]] because [he/she/nonbinary pronoun] was relying on the advice of an attorney. To succeed, [name of defendant] must prove both of the following:

1.That [name of defendant] made a full and honest disclosure of all the important facts known to [him/her/nonbinary pronoun] to the [district attorney/attorney]; and

2.That [he/she/nonbinary pronoun] reasonably relied on the [district attorney/attorney]’s advice.

Sources and Authority

“ ‘Good faith reliance on the advice of counsel, after truthful disclosure of all the relevant facts, is a complete defense to a malicious prosecution claim.’ The burden of proving the advice of counsel defense is on [defendant].” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 876–877 [193 Cal.Rptr.3d 912], internal citation omitted.)

“[I]f the initiator acts in bad faith or withholds from counsel facts he knew or should have known would defeat a cause of action otherwise appearing from the information supplied, [the] defense fails.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 53–54 [118 Cal.Rptr. 184, 529 P.2d 608].)

“[T]he defense that a criminal prosecution was commenced upon the advice of counsel is unavailing in an action for malicious prosecution if it appears … that the defendant did not believe that the accused was guilty of the crime charged.” (Singleton v. Singleton (1945) 68 Cal.App.2d 681, 695 [157 P.2d 886].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 602, 604
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process, § 43.07 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and Abuse of Process, § 357.23 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of Process, §§ 147.37, 147.46 (Matthew Bender)