CACI 3602 Affirmative Defense—Agent and Employee Immunity Rule

California Civil Jury Instructions CACI

3602 Affirmative Defense—Agent and Employee Immunity Rule

[Name of defendant] claims that [he/she/nonbinary pronoun] was not part of a conspiracy because [he/she/nonbinary pronoun] was acting as an [agent/employee] of [name of defendant entity]. To succeed, [name of defendant] must prove both of the following:

1.That [he/she/nonbinary pronoun] was acting in [his/her/nonbinary pronoun] official capacity on behalf of [name of defendant entity]; and

2.That [he/she/nonbinary pronoun] was not acting to advance [his/her/nonbinary pronoun] own personal interests.

Directions for Use

This instruction is for use if an individual defendant is alleged to have conspired with an entity. This instruction is not intended to apply if an individual defendant is alleged to have conspired with a third party and there is no agency relationship between them.

Sources and Authority

“[A]gents or employees of a corporation cannot conspire with the corporation while acting in their official capacities on behalf of the corporation rather than as individuals acting for their individual advantage.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 12 [101 Cal.Rptr. 499], internal citations omitted.)

“The rule ‘derives from the principle that ordinarily corporate agents and employees acting for or on behalf of the corporation cannot be held liable for inducing a breach of the corporation’s contract since being in a confidential relationship to the corporation their action in this respect is privileged.’ ” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 512, fn. 4 [28 Cal.Rptr.2d 475, 869 P.2d 454], internal citations omitted.)

“A corporation is, of course, a legal fiction that cannot act at all except through its employees and agents. When a corporate employee acts in the course of his or her employment, on behalf of the corporation, there is no entity apart from the employee with whom the employee can conspire. ‘[I]t is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation … .’ To hold that a subordinate employee of a corporation can be liable for conspiring with the corporate principal would destroy what has heretofore been the settled rule that a corporation cannot conspire with itself.” (Black v. Bank of America N.T. & S.A. (1994) 30 Cal.App.4th 1, 6 [35 Cal.Rptr.2d 725], internal citations and footnote omitted.)

“[U]nder the agent’s immunity rule, ‘[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 and was acting only as the agent or employee of the party who did have that duty.’ ” (Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1157 [151 Cal.Rptr.3d 683], original italics.)

“Conspiracy liability may properly be imposed on nonfiduciary agents or attorneys for conduct which they carry out not simply as agents or employees of fiduciary defendants, but in furtherance of their own financial gain.” (Skarbrevik v. Cohen (1991) 231 Cal.App.3d 692, 709 [282 Cal.Rptr. 627].)

Secondary Sources

1 Levy et al., California Torts, Ch. 9, Civil Conspiracy, Concerted Action, and Related Theories of Joint Liability, § 9.03[3][b] (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 126, § 126.11 Conspiracy (Matthew Bender)
4 California Points and Authorities, Ch. 46, § 46.21 et seq. Conspiracy (Matthew Bender)