CACI 3600 Conspiracy—Essential Factual Elements

California Civil Jury Instructions CACI

3600 Conspiracy—Essential Factual Elements

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by [name of coconspirator]’s [insert tort theory] and that [name of defendant] is responsible for the harm because [he/she/nonbinary pronoun] was part of a conspiracy to commit [insert tort theory]. A conspiracy is an agreement by two or more persons to commit a wrongful act. Such an agreement may be made orally or in writing or may be implied by the conduct of the parties.

If you find that [name of coconspirator] committed [a/an] [insert tort theory] that harmed [name of plaintiff], then you must determine whether [name of defendant] is also responsible for the harm. [Name of defendant] is responsible if [name of plaintiff] proves both of the following:

1.That [name of defendant] was aware that [name of coconspirator] [and others] planned to [insert wrongful act]; and

2.That [name of defendant] agreed with [name of coconspirator] [and others] and intended that the [insert wrongful act] be committed.

Mere knowledge of a wrongful act without cooperation or an agreement to cooperate is insufficient to make [name of defendant] responsible for the harm.

A conspiracy may be inferred from circumstances, including the nature of the acts done, the relationships between the parties, and the interests of the alleged coconspirators. [Name of plaintiff] is not required to prove that [name of defendant] personally committed a wrongful act or that [he/she/nonbinary pronoun] knew all the details of the agreement or the identities of all the other participants.

Sources and Authority

“Conspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another. … A conspiracy requires evidence ‘that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it.’ Thus, conspiracy provides a remedial measure for affixing liability to all who have ‘agreed to a common design to commit a wrong’ when damage to the plaintiff results. The defendant in a conspiracy claim must be capable of committing the target tort.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652 [231 Cal.Rptr.3d 771], internal citations omitted.)

“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511 [28 Cal.Rptr.2d 475, 869 P.2d 454], internal citations omitted.)

“While criminal conspiracies involve distinct substantive wrongs, civil conspiracies do not involve separate torts. The doctrine provides a remedial measure for affixing liability to all persons who have ‘agreed to a common design to commit a wrong.’ ” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333 [103 Cal.Rptr.2d 339], internal citation omitted.)

“As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves. ‘The effect of charging … conspiratorial conduct is to implicate all … who agree to the plan to commit the wrong as well as those who actually carry it out.’ ” (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784 [157 Cal.Rptr. 392, 598 P.2d 45], internal citations omitted.)

“To support a conspiracy claim, a plaintiff must allege the following elements: ‘(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.’ ” (AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 [157 Cal.Rptr.3d 368].)

“ ‘[T]he major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.’ ” (Applied Equipment Corp., supra, 7 Cal.4th at p. 511, internal citations omitted.)

“A complaint for civil conspiracy states a cause of action only when it alleges the commission of a civil wrong that causes damage. Though conspiracy may render additional parties liable for the wrong, the conspiracy itself is not actionable without a wrong.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 454 [175 Cal.Rptr. 157, 629 P.2d 1369].)

“Defendants seem to argue that an action for conspiracy must be based exclusively on tort principles, not on a statutory violation that provides civil penalties. No authority is cited for that proposition, and we cannot conceive of a basis for limiting conspiracy claims in that manner. It is sufficient that a conspiracy is based on an agreement to engage in unlawful conduct regardless of whether the conspiracy violates a duty imposed by tort law or a statute.” (Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1158 [151 Cal.Rptr.3d 683].)

“[Defendant] finally argues, relying on federal or out-of-state authorities, that because [plaintiff] only alleged [driver] was negligent and the evidence does not permit a finding that either she or [driver] intended to harm anyone, there is no basis for liability; that there cannot be a civil conspiracy to commit a negligent act. We acknowledge there is a split within out-of-state authorities, most of which hold that parties cannot conspire to commit a negligent or unintentional act and such a conspiracy is a legal impossibility. [¶] But the law in California remains that a civil conspiracy requires an express or tacit agreement only to commit a civil wrong or tort, which then renders all participants ‘responsible … for all damages ensuing from the wrong … .’ ” (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1293 [188 Cal.Rptr.3d 623], footnote omitted.)

“Because civil conspiracy is so easy to allege, plaintiffs have a weighty burden to prove it. They must show that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it. It is not enough that the conspiring officers knew of an intended wrongful act, they had to agree—expressly or tacitly—to achieve it. Unless there is such a meeting of the minds, ‘the independent acts of two or more wrongdoers do not amount to a conspiracy.’ ” (Choate, supra, 86 Cal.App.4th at p. 333, internal citations omitted.)

“Conspiracies are typically proved by circumstantial evidence. ‘[S]ince such participation, cooperation or unity of action is difficult to prove by direct evidence, it can be inferred from the nature of the act done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.’ ” (Rickley, supra, 212 Cal.App.4th at p. 1166, internal citation omitted.)

“A cause of action for civil conspiracy may not arise … if the alleged conspirator, though a participant in the agreement underlying the injury, was not personally bound by the duty violated by the wrongdoing … .” (Doctors’ Co. v. Superior Court (1989) 49 Cal.3d 39, 44 [260 Cal.Rptr. 183, 775 P.2d 508], internal citation omitted.)

“Conspiracy is not an independent tort; it cannot create a duty or abrogate an immunity. It allows tort recovery only against a party who already owes the duty and is not immune from liability based on applicable substantive tort law principles.” (Applied Equipment Corp., supra, 7 Cal.4th at p. 514, internal citations omitted.)

“A conspiracy cannot be alleged as a tort separate from the underlying wrong it is organized to achieve. As long as the underlying wrongs are subject to privilege, defendants cannot be held liable for a conspiracy to commit those wrongs. Acting in concert with others does not destroy the immunity of defendants.” (McMartin v. Children’s Institute International (1989) 212 Cal.App.3d 1393, 1406 [261 Cal.Rptr. 437], internal citations omitted.)

“We agree … that the general rule is that a party who is not personally bound by the duty violated may not be held liable for civil conspiracy even though it may have participated in the agreement underlying the injury. However, an exception to this rule exists when the participant acts in furtherance of its own financial gain.” (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048 [74 Cal.Rptr.2d 550], internal citations omitted.)

“ ‘The basis of a civil conspiracy is the formation of a group of two or more persons who have agreed to a common plan or design to commit a tortious act.’ The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582 [47 Cal.Rptr.2d 752], internal citations omitted.)

“Liability as a co-conspirator depends upon projected joint action. ‘The mere knowledge, acquiescence, or approval of the act, without co-operation or agreement to cooperate is not enough … .’ But once the plan for joint action is shown, ‘a defendant may be held liable who in fact committed no overt act and gained no benefit therefrom.’ ” (Wetherton v. Growers Farm Labor Assn. (1969) 275 Cal.App.2d 168, 176 [79 Cal.Rptr. 543], internal citations omitted, disapproved on another ground in Applied Equipment Corp., supra, 7 Cal.4th at p. 521, fn. 10.)

“Furthermore, the requisite concurrence and knowledge ‘may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.’ Tacit consent as well as express approval will suffice to hold a person liable as a coconspirator.” (Wyatt, supra, 24 Cal.3d at p. 785, internal citations omitted.)

“[A]ctual knowledge of the planned tort, without more, is insufficient to serve as the basis for a conspiracy claim. Knowledge of the planned tort must be combined with intent to aid in its commission. ‘The sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective.’ ‘This rule derives from the principle that a person is generally under no duty to take affirmative action to aid or protect others.’ ” (Kidron, supra, 40 Cal.App.4th at p. 1582, internal citations omitted.)

“While knowledge and intent ‘may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances,’ ‘[c]onspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense.’ An inference must flow logically from other facts established in the action.” (Kidron, supra, 40 Cal.App.4th at p. 1583, internal citations omitted.)

“[A] nonfiduciary cannot conspire to breach a duty owed only by a fiduciary.” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1474 [171 Cal.Rptr.3d 548].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 151 et seq.
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-I, Conspiracy, ¶ 11:167 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and Related Theories of Joint Liability, § 9.03 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, Conspiracy, § 126.11 (Matthew Bender)
4 California Points and Authorities, Ch. 46, Conspiracy, § 46.20 et seq. (Matthew Bender)