CACI 332 Affirmative Defense—Duress

California Civil Jury Instructions CACI

332 Affirmative Defense—Duress

[Name of defendant] claims that there was no contract because [his/her/nonbinary pronoun] consent was given under duress. 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 of defendant] into consenting to the contract;

2.That [name of defendant] was so afraid or intimidated by the wrongful act or wrongful threat that [he/she/nonbinary pronoun] did not have the free will to refuse to consent to the contract; and

3.That [name of defendant] would not have consented to the contract without the wrongful act or wrongful threat.

An act or a threat is wrongful if [insert relevant rule—e.g., “a criminal act is threatened”].

If you decide that [name of defendant] has proved all of the above, then no contract was created.

Directions for Use

Use CACI No. 333, Affirmative Defense—Economic Duress, in cases involving economic duress.

Sources and Authority

When Consent Not Freely Given. Civil Code sections 1567, 1568.

Duress. Civil Code section 1569.

Menace. Civil Code section 1570.

“Menace” is considered to be duress: “Under the modern rule, ‘ “[d]uress, which includes whatever destroys one’s free agency and constrains [her] to do what is against [her] will, may be exercised by threats, importunity or any species of mental coercion. It is shown where a party ‘intentionally used threats or pressure to induce action or nonaction to the other party’s detriment.’ ” ’ The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing.” (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84 [260 Cal.Rptr. 403], internal citations omitted.)

“Duress envisions some unlawful action by a party by which one’s consent is obtained through fear or threats.” (Keithley v. Civil Service Bd. of The City of Oakland (1970) 11 Cal.App.3d 443, 450 [89 Cal.Rptr. 809], internal citations omitted.)

Duress is found only where fear is intentionally used as a means of procuring consent: “[A]n action for duress and menace cannot be sustained when the voluntary action of the apprehensive party is induced by his speculation upon or anticipation of a future event suggested to him by the defendant but not threatened to induce his conduct. The issue in each instance is whether the defendant intentionally exerted an unlawful pressure on the injured party to deprive him of contractual volition and induce him to act to his own detriment.” (Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894–895 [57 Cal.Rptr. 19].)

It is wrongful to use the threat of criminal prosecution to obtain a consent: “California law is clear that an agreement obtained by threat of criminal prosecution constitutes menace and is unenforceable as against public policy.” (Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15 Cal.App.4th 119, 127 [18 Cal.Rptr.2d 626].) However, a threat of legitimate civil action is not considered wrongful: “[T]he action or threat in duress or menace must be unlawful, and a threat to take legal action is not unlawful unless the party making the threat knows the falsity of his claim.” (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128 [54 Cal.Rptr. 533].)

Standard duress is evaluated under a subjective standard: “The question in each case [is], Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained? Hence, under this theory duress is to be tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim.” (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 744 [129 Cal.Rptr. 566].)

The wrongful acts of a third party may constitute duress sufficient to allow rescission of a contract with a party, who, although not participating in those wrongful acts, had knowledge of the innocent party’s position. (Leeper v. Beltrami (1959) 53 Cal.2d 195, 205–206 [1 Cal.Rptr. 12, 347 P.2d 12].)

“[Defendant has] the burden of proving by a preponderance of the evidence the affirmative of the issues of duress and plaintiff’s default.” (Fio Rito v. Fio Rito (1961) 194 Cal.App.2d 311, 322 [14 Cal.Rptr. 845]; cf. Stevenson v. Stevenson (1940) 36 Cal.App.2d 494, 500 [97 P.2d 982].)

Secondary Sources

1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 310–316
17 California Forms of Pleading and Practice, Ch. 215, Duress, Menace, Fraud, Undue Influence, and Mistake, §§ 215.20–215.21, 215.23–215.28, 215.120–215.121 (Matthew Bender)
9 California Points and Authorities, Ch. 92, Duress, Menace, Fraud, Undue Influence, and Mistake, § 92.20 et seq. (Matthew Bender)
27 California Legal Forms, Ch. 77, Discharge of Obligations, § 77.351 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 8, Seeking or Opposing Equitable Remedies in Contract Actions, 8.07
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 17, Attacking or Defending Existence of Contract—Fraud, Duress, Menace, and Undue Influence, 17.03–17.06, 17.20–17.24[1]