CACI 3961 Duty to Mitigate Damages for Past Lost Earnings

California Civil Jury Instructions CACI

3961 Duty to Mitigate Damages for Past Lost Earnings

[Name of plaintiff] is not entitled to recover damages for economic losses that [name of defendant] proves [name of plaintiff] could have avoided by returning to gainful employment as soon as it was reasonable for [him/her/nonbinary pronoun] to do so.

To calculate the amount of damages you must:

1.Determine the amount [name of plaintiff] would have earned from the job [he/she/nonbinary pronoun] held at the time [he/she/nonbinary pronoun] was injured; and

2.Subtract the amount [name of plaintiff] earned or could have earned by returning to gainful employment.

The resulting amount is [name of plaintiff]’s damages for past lost earnings.

Directions for Use

For an instruction on mitigation of damages involving personal injury, see CACI No. 3930, Mitigation of Damages (Personal Injury).

Sources and Authority

“A plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568 [54 Cal.Rptr.2d 468].)

“The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided.’ A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion. The duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable. ‘The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32 Cal.Rptr.2d 329], internal citations omitted.)

“Whether a plaintiff acted reasonably to mitigate damages, however, is a factual matter to be determined by the trier of fact, and is reviewed under the substantial evidence test. The burden of proving a plaintiff failed to mitigate damages, however, is on the defendant, not the other way around.” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 884 [164 Cal.Rptr.3d 811].)

Secondary Sources

1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 945
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798
4 Levy et al., California Torts, Ch. 53, Mitigation of Damages (Avoidable Consequences) and the Collateral Source Rule, § 53.02 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.48 (Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.170 et seq. (Matthew Bender)