CACI 1805: A COMEDY OF ERRORS

Written by Jordanna G. Thigpen

California is fortunate to have a robust process for the creation and amendment of Civil Jury Instructions, managed by the Judicial Council’s Advisory Committee on Civil Jury Instructions Committee. Under California Rules of Court, rule 2.1050, the Judicial Council of California Jury Instructions (CACI) instructions are designated "the official instructions for use in the state of California." Yet owing to the volume of hard work for the volunteers of this committee, some erroneous instructions may go unnoticed for years before notice is taken of deficiencies and errors.

No instruction better illustrates that principle than CACI 1805, Affirmative Defense to Use or Appropriation of Name or Likeness — First Amendment (Comedy III), which can be misleading and does not accurately state the law.

In Garrabrants v. Erhart (2023) 98 Cal. App.5th 486, 500, the Court of Appeal recently reaffirmed the principle that "’it is dangerous to frame an instruction upon isolated extracts from the opinions of the court,’" since "’"[j]udicial opinions are not written as jury instructions and are notoriously unreliable as such."’"