CACI VF-4602 Whistleblower Protection—Affirmative Defense of Same Decision (Lab. Code, §§ 1102.5, 1102.6)
California Civil Jury Instructions CACI
VF-4602 Whistleblower Protection—Affirmative Defense of Same Decision (Lab. Code, §§ 1102.5, 1102.6)
We answer the questions submitted to us as follows:
1.Was [name of defendant] [name of plaintiff]’s employer?
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] disclose/[name of defendant] believe that [name of plaintiff] [had disclosed/might disclose]] to a [government agency/law enforcement agency/person with authority over [name of plaintiff]/ [or] an employee with authority to investigate, discover, or correct legal [violations/noncompliance]] that [specify information disclosed]?
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] have reasonable cause to believe that the information disclosed [a violation of a [state/federal] statute/[a violation of/noncompliance with] a [local/state/federal] rule or regulation]?
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 disclosure of information 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 $
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.
New December 2015; Revised December 2016, May 2020
https://crowdsourcelawyers.com/judicial-council-california-civil-jury-instructions-caci
Directions for Use
This verdict form is based on CACI No. 4603, Whistleblower Protection—Essential Factual Elements, and CACI No. 4604, 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.
Questions 2 and 3 may be replaced with one of the other options for elements 2 and 3 in CACI No. 4603. Omit question 3 entirely, however, if the plaintiff allegedly refused to participate in an activity that would result in a violation or noncompliance with a statute, rule, or regulation. (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 719 [253 Cal.Rptr.3d 404].) If the plaintiff allegedly refused to participate in an activity that would result in a violation or noncompliance with a statute, rule, or regulation, replace “disclosure of information” in question 5 with “refusal to [specify activity employee refused to participate in and what specific statute, rule, or regulation would be violated by that activity].”
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 Lab. Code, § 1102.6.)
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.