CACI 3963 Affirmative Defense—Employee’s Duty to Mitigate Damages

California Civil Jury Instructions CACI

3963 Affirmative Defense—Employee’s Duty to Mitigate Damages

[Name of defendant] claims that if [name of plaintiff] is entitled to any damages, they should be reduced by the amount that [name of plaintiff] could have earned from other employment. To succeed, [name of defendant] must prove all of the following:

1.That employment substantially similar to [name of plaintiff]’s former job was available to [him/her/nonbinary pronoun];

2.That [name of plaintiff] failed to make reasonable efforts to seek [and retain] this employment; and

3.The amount that [name of plaintiff] could have earned from this employment.

In deciding whether the employment was substantially similar, you should consider, among other factors, whether:

(a)The nature of the work was different from [name of plaintiff]’s employment with [name of defendant];

(b)The new position was substantially inferior to [name of plaintiff]’s former position;

(c)The salary, benefits, and hours of the job were similar to [name of plaintiff]’s former job;

(d)The new position required similar skills, background, and experience;

(e)The job responsibilities were similar; [and]

(f)The job was in the same locality; [and]

(g)[insert other relevant factor(s)].

[In deciding whether [name of plaintiff] failed to make reasonable efforts to retain comparable employment, you should consider whether [name of plaintiff] quit or was discharged from that employment for a reason within [his/her/nonbinary pronoun] control.]

New September 2003; Revised February 2007, December 2014; Revised and Renumbered from CACI No. 2407 November 2018

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Directions for Use

This instruction may be given for any claim in which the plaintiff seeks to recover damages for past and future lost earnings from an employer for a wrongful termination of employment, for example in violation of public policy (see CACI No. 2400 et seq.) or under the Fair Employment and Housing Act (see CACI No. 2500 et seq.), when there is evidence that the employee’s damages could have been mitigated. The bracketed language at the end of the instruction regarding plaintiff’s failure to retain a new job is based on the holding in Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1502-1503 [44 Cal.Rptr.2d 565].

In deciding whether the plaintiff could have obtained a substantially similar job, the trier of fact may consider several factors, including salary, benefits, hours of work per day, hours of work per year, locality, and availability of a merit-based system. (See California School Employees Assn. v. Personnel Commission (1973) 30 Cal.App.3d 241, 250–255 [106 Cal.Rptr. 283].) Read only those factors that have been shown by the evidence.

Sources and Authority

“The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689], internal citations omitted; see also Rabago-Alvarez v. Dart Industries, Inc. (1976) 55 Cal.App.3d 91, 98 [127 Cal.Rptr. 222] [“Plaintiff concedes that the trial court was entitled to deduct her actual earnings”]; but see Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1432 [165 Cal.Rptr.3d 441] [wages actually earned from an inferior job may not be used to mitigate damages].)

“[B]efore projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived … .” (Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, 454 [177 Cal.Rptr.3d 145].)

“The burden is on the employer to prove that substantially similar employment was available which the wrongfully discharged employee could have obtained with reasonable effort.” (Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th 607, 616 [46 Cal.Rptr.2d 459].)

“[W]e conclude that the trial court should not have deducted from plaintiff’s recovery against defendant the amount that the court found she might have earned in employment which was substantially inferior to her position with defendant.” (Rabago-Alvarezsupra, 55 Cal.App.3d at p. 99.)

“[I]n those instances where the jury determines the employee was fired from a substantially similar position for cause, any amount the employee with reasonable effort could have earned by retaining that employment should be deducted from the amount of damages which otherwise would have been awarded to the employee under the terms of the original employment agreement.” (Stanchfield, supra, 37 Cal.App.4th at pp. 1502–1503.)

“The location of the new job is one of the factors to consider in determining whether the new job is inferior.” (Villacortasupra, 221 Cal.App.4th at p. 1432.)

“There is some authority for the proposition that whether or not the other employment is comparable or substantially similar or equivalent to the prior position is a question of fact. On the other hand the issue of substantial similarity or inferiority of employment is one that has often been decided as a matter of law in California.” (California School Employees Assn.supra, 30 Cal.App.3d at pp. 253–254, internal citations omitted.)

“The court could reasonably admit the evidence of other available jobs and leave the question of their substantial similarity to the jury.” (Kao, supra, 229 Cal.App.4th at p. 454.)

“[S]elf-employment is not unreasonable mitigation as long as the discharged employee applies sufficient effort trying to make the business successful, even if those efforts fail.” (Cordero-Sacks v. Housing Authority of City of Los Angeles (2011) 200 Cal.App.4th 1267, 1284–1285 [134 Cal.Rptr.3d 883].)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 17-F, Mitigation Of Damages (Avoidable Consequences Doctrine), ¶¶ 17:490, 17:492, 17:495, 17:497, 17:499–17:501 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract Actions, §§ 8.40–8.41
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.08[4] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.18, 249.65 (Matthew Bender)