Litigation

Invitation to Comment—CACI 23-02

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 September 7, 2023 

Via E-mail: civiljuryinstructions@jud.ca.gov 

Mr. Eric Long 
Advisory Committee on Civil Jury Instructions 
Judicial Council of California 
455 Golden Gate Avenue 
San Francisco, CA 94102 

re: Invitation to Comment—CACI 23-02 

Dear Mr. Long: 

The Jury Instructions Committee of the California Lawyers Association’s Litigation Section has reviewed the proposed revisions to civil jury instructions (CACI 23-02) and appreciates the opportunity to submit these comments. 

1. User Guide 

Agree. 

2. CACI No. 113. Bias 

Agree. 

3. CACI No. 2547. Disability-based Associational Discrimination—Essential Factual Elements 

Agree. 

4. CACI No. 2549. Disability Discrimination—Refusal to Permit Reasonable Modification to Housing Unit (Gov. Code, § 12927(c)(1)) 

Agree. 

5. CACI No. 2580. Pregnancy Discrimination—Failure to Accommodate—Essential Factual Elements (Gov. Code, § 12945(a)(3)(A)) 

a. We suggest adding informative language from Lopez to Sources and Authority: 

“We agree that section 12945 affords important protections to employees affected by pregnancy, over and above the protections of section 12940. These additional protections include a right to up to four months of pregnancy-disability leave (§ 12945(a)(1)), and a right to temporary transfer to a less strenuous job if such a ‘transfer can be reasonably accommodated’ (§ 12945(a)(3)). Section 12945(a)(3)(A) also protects a right to reasonable accommodation for a condition associated with pregnancy or childbirth, even when this condition does not rise to the level of a formally recognized disability. Section 12945(a)(3)(A) is, in this regard, broader than section 12940(m), which addresses an employer’s obligation to accommodate ‘disability.’ But none of these provisions entitles an employee to a job she cannot perform.” (Lopez v. La Casa de Las Madres (2023) 89 Cal.App.5th 365, 381-382.) 

b. Government Code section 12945, subdivision (a) prohibits certain conduct “unless based upon a bona fide occupational qualification.” We believe the Advisory Committee should consider drafting an instruction based on this language, which appears to state an affirmative defense. 

6. CACI No. 2581. Pregnancy Discrimination—“Reasonable Accommodation” Explained 

We suggest adding the same language from Lopez quoted above to Sources and Authority. 

7. VF-2700. Nonpayment of Wages (Lab. Code, §§ 201, 202, 218) 

Agree. 

8. VF-2701. Nonpayment of Minimum Wage (Lab. Code 

Agree. 

9. VF-2702. Nonpayment of Overtime Compensation (Lab. Code, § 1194) 

Agree. 

10. VF-2706. Rest Break Violations (Lab. Code, § 226.7) 

We agree with the proposed revisions, but suggest that the following be added at the end of the Directions for Use to avoid confusion: “Note that under Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 121-123, the applicable prejudgment interest rate for meal and rest break claims under Labor Code section 226.7 is 7%, not 10% as stated in Civil Code section 3289 and Labor Code section 218.6.” 

11. VF. 2707. Meal Break Violations (Lab. Code, § 226.7, 512) 

Same comment as VF-2606. 

12. VF-2708. Meal Break Violations—Employer Records Showing Noncompliance (Lab. Code, § 226.7, 512) 

Agree. 

13. VF. 2709. Meal Break Violations—Inaccurate or Missing Employer Records (Lab. Code, § 226.7, 512) 

Agree. 

14. CACI No. 3070. Disability Discrimination—Access Barriers to Public Facility—Construction-related Accessibility Standards Act—Essential Factual Elements (Civ. Code, §§ 54.3, 55.56) 

Agree. 

15. CACI No. 3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage) 

a. We agree that the Directions for Use should note that Phipps v. Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 337, and Johnson v. Monsanto Co. (2020) 52 Cal.App.5th 434, 454, reached different conclusions on whether shortened life expectancy is an item of noneconomic damages. We note that the Directions for Use in other instructions sometimes refer to an issue as “unsettled” and sometimes state there is a “split of authority.” We suggest an effort be made to ensure the same language is used consistently if the language describes the same thing. 

b. We agree with the proposed revisions to the Sources and Authority. 

16. CACI No. 4603. Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5) 

Agree. 

17. CACI No. 4702. Consumer Legal Remedies Act—Statutory Damages—Senior or Person With a Disability (Civ. Code, § 1780(b)) 

Agree. 

18. CACI No. 5030. Implicit or Unconscious Bias 

We enthusiastically agree. We believe this proposed new instruction is well written and consider it very important to include an instruction on implicit or unconscious bias in the concluding instructions. 

Sincerely, 

Reuben A. Ginsburg 
Chair, Jury Instructions Committee of the 
California Lawyers Association’s 
Litigation Section 


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