CACI 4101 Failure to Use Reasonable Care—Essential Factual Elements

California Civil Jury Instructions CACI

4101 Failure to Use Reasonable Care—Essential Factual Elements

[Name of plaintiff] claims that [he/she/nonbinary pronoun/it] was harmed by [name of defendant]’s breach of the fiduciary duty to use reasonable care. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] was [name of plaintiff]’s [agent/stockbroker/real estate agent/real estate broker/corporate officer/partner/[insert other fiduciary relationship]];

2.That [name of defendant] acted on [name of plaintiff]’s behalf for purposes of [insert description of transaction, e.g., “purchasing a residential property”];

3.That [name of defendant] failed to act as a reasonably careful [agent/stockbroker/real estate agent/real estate broker/corporate officer/partner/[insert other fiduciary relationship]] would have acted under the same or similar circumstances;

4.That [name of plaintiff] was harmed; and

5.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

The instructions in this series are intended for lawsuits brought by or on behalf of the principal. They also assume that the plaintiff is bringing a legal cause of action, not an action in equity. (See Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819 [251 Cal.Rptr. 530].) This instruction is not intended for cases involving insurance brokers or agents.

In appropriate cases, element 3 may be tailored to reflect the particular fiduciary duty at issue.

For a breach of fiduciary duty instruction in cases involving attorney defendants, see CACI No. 4106, Breach of Fiduciary Duty by Attorney—Essential Factual Elements.

While the advisory committee has not included “employee” as an option for identifying the defendant agent in element 1, there may be cases in which certain employees qualify as “agents,” thereby subjecting them to liability for breach of fiduciary duty.

Sources and Authority

“A fiduciary relationship is ‘ “ ‘any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent. …’ ” ’ ” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29 [130 Cal.Rptr.2d 860], internal citations omitted.)

“An act such as breach of fiduciary duty may be both a breach of contract and a tort.” (Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1178 [27 Cal.Rptr.3d 754], internal citation omitted.)

“Breach of a real estate agent’s fiduciary duty to his or her client may constitute negligence or fraud, depending on the circumstances of the case.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 563 [29 Cal.Rptr.2d 463].)

“Breach of fiduciary duty is a tort that by definition may be committed by only a limited class of persons.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 592 [132 Cal.Rptr.2d 789].)

“Traditional examples of fiduciary relationships in the commercial context include trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint adventurers, and agent/principal.” (Wolf, supra, 107 Cal.App.4th at p. 30, internal citations omitted.)

“ ‘The relationship between a broker and principal is fiduciary in nature and imposes on the broker the duty of acting in the highest good faith toward the principal.’ ” (Twomey v. Mitchum, Jones & Templeton, Inc. (1968) 262 Cal.App.2d 690, 709 [69 Cal.Rptr. 222], internal citations omitted.)

“A stockbroker’s fiduciary duty requires more than merely carrying out the stated objectives of the customer; at least where there is evidence, as there certainly was here, that the stockbroker’s recommendations were invariably followed, the stockbroker must ‘determine the customer’s actual financial situation and needs.’ If it would be improper and unsuitable to carry out the speculative objectives expressed by the customer, there is a further obligation on the part of the stockbroker ‘to make this known to [the customer], and [to] refrain from acting except upon [the customer’s] express orders.’ Under such circumstances, although the stockbroker can advise the customer about the speculative options available, he or she should not solicit the customer’s purchase of any such speculative securities that would be beyond the customer’s ‘risk threshold.’ ” (Duffy v. Cavalier (1989) 215 Cal.App.3d 1517, 1538 [264 Cal.Rptr. 740], internal citations omitted.)

“Real estate brokers are subject to two sets of duties: those imposed by regulatory statutes, and those arising from the general law of agency. … ‘The existence and extent of the duties of the agent to the principal are determined by the terms of the agreement between the parties, interpreted in light of the circumstances under which it is made, except to the extent that fraud, duress, illegality, or the incapacity of one or both of the parties to the agreement modifies it or deprives it of legal effect.’ ” (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 755 [17 Cal. Rptr. 2d 734], internal citations omitted.)

“In order to plead a cause of action for breach of fiduciary duty against a trustee, the plaintiff must show the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach; the absence of any one of these elements is fatal to the cause of action. The beneficiary of the trust has the initial burden of proving the existence of a fiduciary duty and the trustee’s failure to perform it; the burden then shifts to the trustee to justify its actions.” (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517 [52 Cal.Rptr.2d 861], internal citations omitted.)

“Recovery for damages based upon breach of fiduciary duty is controlled by Civil Code section 3333, the traditional tort recovery. This is actually broader in some instances than damages which may be recovered for fraud. Also, punitive damages are appropriate for a breach of fiduciary duty.” (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1582 [36 Cal.Rptr.2d 343], internal citations omitted.)

“While breach of fiduciary duty is a question of fact, the existence of legal duty in the first instance and its scope are questions of law.” (Kirschner Brothers Oil, Inc. v. Natomas Co. (1986) 185 Cal.App.3d 784, 790 [229 Cal.Rptr. 899], internal citation omitted.)

“[I]n actions against fiduciaries, a plaintiff may have the option of pursuing either legal or equitable remedies.” (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 863 [251 Cal.Rptr. 530].)

“A minority shareholder’s action for damages for the breach of fiduciary duties of the majority shareholder is one in equity, with no right to a jury trial.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 122 [84 Cal.Rptr.2d 753], internal citations omitted.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, § 70
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31[2] (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)
Miller & Starr, California Real Estate 4th, § 3:26 (Thomson Reuters)