CACI VF-4601 Protected Disclosure by State Employee—California Whistleblower Protection Act—Affirmative Defense—Same Decision (Gov. Code, § 8547.8(c))

California Civil Jury Instructions CACI

VF-4601 Protected Disclosure by State Employee—California Whistleblower Protection Act—Affirmative Defense—Same Decision (Gov. Code, § 8547.8(c))


We answer the questions submitted to us as follows:

1.Did [name of plaintiff] [specify protected disclosure, e.g., report waste, fraud, abuse of authority, violation of law, threats to public health, bribery, misuse of government property]?

 Yes   No

If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

2.Did [name of plaintiff]’s communication [disclose/ [or] demonstrate an intention to disclose] evidence of [an improper governmental activity/ [or] a condition that could significantly threaten the health or safety of employees or the public]?

 Yes   No

If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

3.Did [name of plaintiff] make this communication in good faith [for the purpose of remediating the health or safety condition]?

 Yes   No

If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

4.Did [name of defendant] [discharge/specify other adverse action] [name of plaintiff]?

 Yes   No

If your answer to question 4 is yes, then answer question 5. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

5.Was [name of plaintiff]’s communication a contributing factor in [name of defendant]’s decision to [discharge/other adverse action] [him/her/nonbinary pronoun]?

 Yes   No

If your answer to question 5 is yes, then answer question 6. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

6.Was [name of defendant]’s conduct a substantial factor in causing harm to [name of plaintiff]?

 Yes   No

If your answer to question 6 is yes, then answer question 7. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

7.Would [name of defendant] have [discharged/specify other adverse action] [name of plaintiff] anyway at that time, for legitimate, independent reasons?

 Yes   No

If your answer to question 7 is no, then answer question 8. If you answered yes, stop here, answer no further questions, and have the presiding juror sign and date this form.

8.What are [name of plaintiff]’s damages?

[a.Past economic loss

[lost earnings $]

[lost profits $]

[medical expenses $]

[other past economic loss $]

Total Past Economic Damages: $]

[b.Future economic loss

[lost earnings $]

[lost profits $]

[medical expenses $]

[other future economic loss$]

Total Future Economic Damages: $]

[c.Past noneconomic loss, including [physical
pain/mental suffering:]$]

[d.Future noneconomic loss, including [physical
pain/mental suffering:] $]

TOTAL $

Signed:Presiding Juror
Dated: 

After [this verdict form has/all verdict forms have] been signed, notify the [clerk/bailiff/court attendant] that you are ready to present your verdict in the courtroom.


Directions for Use

This verdict form is based on CACI No. 4601, Protected Disclosure by State Employee—California Whistleblower Protection Act—Essential Factual Elements, and CACI No. 4602, Affirmative Defense—Same Decision.

The special verdict forms in this section are intended only as models. They may need to be modified depending on the facts of the case.

If a health or safety violation is presented in question 2, include the bracketed language at the end of question 3.

Questions 4 and 5 may be modified to allege constructive discharge. Questions 2 through 5 of CACI No. VF-2408, Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure Intolerable Conditions for Improper Purpose That Violates Public Policy, should be adapted and included in such a case.

Question 7 presents the employer’s affirmative defense that it would have made the same decision anyway for legitimate reasons even though the jury finds that retaliation for whistleblowing was also a contributing factor for the adverse action. Question 7 must be proved by clear and convincing evidence. (See Gov. Code, § 8547.8(e).)

If specificity is not required, users do not have to itemize all the damages listed in question 8 and do not have to categorize “economic” and “noneconomic” damages, especially if it is not a Proposition 51 case. The breakdown of damages is optional depending on the circumstances.

If there are multiple causes of action, users may wish to combine the individual forms into one form. If different damages are recoverable on different causes of action, replace the damages tables in all of the verdict forms with CACI No. VF-3920, Damages on Multiple Legal Theories.

If the jury is being given the discretion under Civil Code section 3288 to award prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801, 814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest. This verdict form may need to be augmented for the jury to make any factual findings that are required in order to calculate the amount of prejudgment interest.