CACI 3705 Existence of Agency Relationship Disputed

California Civil Jury Instructions CACI

3705 Existence of “Agency” Relationship Disputed

[Name of plaintiff] claims that [name of agent] was [name of defendant]’s agent and that [name of defendant] is therefore responsible for [name of agent]’s conduct.

If [name of plaintiff] proves that [name of defendant] gave [name of agent] authority to act on [his/her/nonbinary pronoun/its] behalf, then [name of agent] was [name of defendant]’s agent. This authority may be shown by words or may be implied by the parties’ conduct. This authority cannot be shown by the words of [name of agent] alone.

Directions for Use

This instruction should be used when the factual setting involves a relationship other than employment, such as homeowner-real estate agent or franchisor-franchisee. For an instruction for use for employment, give CACI No. 3704, Existence of “Employee” Status Disputed. The secondary factors (a) through (j) in CACI No. 3704 may be given with this instruction also. (See Secci v. United Independent Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 855 [214 Cal.Rptr.3d 379].)

Sources and Authority

“Agent” Defined. Civil Code section 2295.

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency. [Citation.] Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act … . [Citation.] While the existence of an agency relationship is ‘typically a question of fact, when ‘ “the evidence is susceptible of but a single inference,” ’ summary judgment may be appropriate.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 85 [244 Cal.Rptr.3d 680], internal citations omitted.)

“ ‘ “The existence of an agency is a factual question within the province of the trier of fact whose determination may not be disturbed on appeal if supported by substantial evidence. [Citation.]” [Citation.] Inferences drawn from conflicting evidence by the trier of fact are generally upheld. [Citation.]’ ‘Only when the essential facts are not in conflict will an agency determination be made as a matter of law. [Citation.]’ ” (Secci, supra, 8 Cal.App.5th at p. 854.)

The burden of proving the existence of an agency rests on the one affirming its existence. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111 P.2d 740].)

One who performs a mere favor for another without being subject to any legal duty of service and without assenting to right of control is not an agent, because the agency relationship rests upon mutual consent. (Hanks v. Carter & Higgins of Cal., Inc. (1967) 250 Cal.App.2d 156, 161 [58 Cal.Rptr. 190].)

An agency must rest upon an agreement. (D’Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213 [202 P.2d 596].) “Agency may be implied from the circumstances and conduct of the parties.” (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1579 [36 Cal.Rptr.2d 343], internal citations omitted.)

“Whether a person performing work for another is an agent or an independent contractor depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent. … It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent. The existence of the right of control and supervision establishes the existence of an agency relationship.” (Malloy v. Fong (1951) 37 Cal.2d 356, 370 [232 P.2d 241], internal citations omitted.)

“For an agency relationship to exist, the asserted principal must have a sufficient right to control the relevant aspect of the purported agent’s day-to-day operations.” (Barenborg, supra, 33 Cal.App.5th at p. 85.)

When the principal controls only the results of the work and not the means by which it is accomplished, an independent contractor relationship is established. (White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 25 [202 Cal.Rptr. 141], overruled on other grounds in Soule v. GM Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298].)

“ ‘[W]hether an agency relationship has been created or exists is determined by the relation of the parties as they in fact exist by agreement or acts [citation], and the primary right of control is particularly persuasive. [Citations.] Other factors may be considered to determine if an independent contractor is acting as an agent, including: whether the “principal” and “agent” are engaged in distinct occupations; the skill required to perform the “agent’s” work; whether the “principal” or “agent” supplies the workplace and tools; the length of time for completion; whether the work is part of the ‘principal’s” regular business; and whether the parties intended to create an agent/principal relationship. [Citation.]’ ” (Secci, supra, 8 Cal.App.5th at p. 855.)

“[T]here is substantial overlap in the factors for determining whether one is an employee or an agent.” (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1184 [183 Cal.Rptr.3d 394].)

“Agency and independent contractorship are not necessarily mutually exclusive legal categories as independent contractor and servant or employee are. In other words, an agent may also be an independent contractor. One who contracts to act on behalf of another and subject to the other’s control, except with respect to his physical conduct, is both an agent and an independent contractor.” (Jackson, supra, 233 Cal.App.4th at p. 1184, original italics, internal citations omitted.)

“[Defendant] argues that when public regulations require a company to exert control over its independent contractors, evidence of that government-mandated control cannot support a finding of vicarious liability based on agency. This argument conflicts with the policy behind the regulated hirer exception, which emphasizes that the effectiveness of public regulations ‘would be impaired if the carrier could circumvent them by having the regulated operations conducted by an independent contractor.’ ” (Secci, supra, 8 Cal.App.5th at pp. 860–861.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 101–105
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 2-C Broker’s Relationship and Obligations to Principal and Third Parties, ¶ 2:120 et seq. (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Vicarious Liability, ¶¶ 2:600, 2:611 (The Rutter Group)
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.04 (Matthew Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for Conduct of Employees, § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, § 248.51 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent, § 427.12 (Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent, § 182.30 et seq. (Matthew Bender)
California Civil Practice: Torts §§ 3:26–3:27 (Thomson Reuters)