CACI 336 Affirmative Defense—Waiver

California Civil Jury Instructions CACI

336 Affirmative Defense—Waiver

[Name of defendant] claims that [he/she/nonbinary pronoun/it] did not have to [insert description of performance] because [name of plaintiff] gave up [his/her/nonbinary pronoun/its] right to have [name of defendant] perform [this/these] obligation[s]. This is called a “waiver.”

To succeed, [name of defendant] must prove both of the following by clear and convincing evidence:

1.That [name of plaintiff] knew [name of defendant] was required to [insert description of performance]; and

2.That [name of plaintiff] freely and knowingly gave up [his/her/nonbinary pronoun/its] right to have [name of defendant] perform [this/these] obligation[s].

A waiver may be oral or written or may arise from conduct that shows that [name of plaintiff] gave up that right.

If [name of defendant] proves that [name of plaintiff] gave up [his/her/nonbinary pronoun/its] right to [name of defendant]’s performance of [insert description of performance], then [name of defendant] was not required to perform [this/these] obligation[s].

Directions for Use

This issue is decided under the “clear and convincing” standard of proof. See CACI No. 201, Highly Probable—Clear and Convincing Proof.

Sources and Authority

“Waiver is the intentional relinquishment of a known right after knowledge of the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422].)

“ ‘ “The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right. [Citation.]” [Citation.] Thus, “California courts will find waiver when a party intentionally relinquishes a right or when that party’s acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” [Citation.]’ [Citation.]” (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 78 [215 Cal.Rptr.3d 835].)

“Acceptance of benefits under a lease is conduct that supports a finding of waiver.” (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179 [120 Cal.Rptr.3d 943], internal citations omitted.)

“Waiver is ordinarily a question for the trier of fact; ‘[h]owever, where there are no disputed facts and only one reasonable inference may be drawn, the issue can be determined as a matter of law.’ ” (DuBeck v. California Physicians’ Service (2015) 234 Cal.App.4th 1254, 1265 [184 Cal.Rptr.3d 743].)

When the injured party with knowledge of the breach continues to accept performance from the guilty party, such conduct may constitute a waiver of the breach. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440–441 [6 P.2d 71].)

There can be no waiver where the one against whom it is asserted has acted without full knowledge of the facts. It cannot be presumed, in the absence of such knowledge, that there was an intention to waive an existing right. (Craig v. White (1921) 187 Cal. 489, 498 [202 P. 648].)

“[N]otwithstanding a provision in a written contract that expressly precludes oral modification, the parties may, by their words or conduct, waive the enforcement of a contract provision if the evidence shows that was their intent.” (Wind Dancer Production Group, supra, 10 Cal.App.5th at p. 80.)

“The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and ‘doubtful cases will be decided against a waiver’.” (City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108 [48 Cal.Rptr. 865, 410 P.2d 369].)

“The trial court correctly instructed the jury that the waiver of a known right must be shown by clear and convincing proof.” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35 Cal.Rptr.2d 515].)

Secondary Sources

1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 881, 882
13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57, 140.113, 140.136 (Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110 (Matthew Bender)
2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or Defending Action for Breach of Contract, 22.08, 22.65, 22.68