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If you find that the defendant without plaintiff's consent appropriated plaintiff's right of publicity for commercial purposes, you must award plaintiff damages that will reasonably compensate for each of the following elements of claimed injury, damage, loss or harm: [In no event shall damages be less than $750.00.]
1. Any mental or emotional distress caused by the invasion, if it is of a kind that normally results from such an invasion;
2. Special damages caused by the invasion.
Special damages are those economic losses which the plaintiff has sustained to date, or is reasonably certain to suffer in the future in respect to property, business, trade, profession, or occupation [including the amount of money which plaintiff has expended as a result of the alleged invasion of privacy] [including the amount of actual damage which is a natural consequence of the invasion of privacy] which were caused by the defendant's invasion of plaintiff's privacy[.] [; and
3. Any profits by defendant from and attributable to the unauthorized use, not included in plaintiff's special damages
In determining the amount of lost profits, if any, plaintiff has the burden of proving by a preponderance of the evidence the amount of gross revenues attributable to the unauthorized use. Defendant has the burden of proving by a preponderance of the evidence the expenses properly deductible from gross revenues.] | TOP |
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of malicious prosecution.
The essential elements of a claim for malicious prosecution are:
1. The defendant initiated or was actively instrumental in [procuring the arrest] [the prosecution of the plaintiff in a criminal action] [the commencement or maintenance of a civil proceeding against the plaintiff];
2. The [arrest proceeding] [criminal action] [civil proceeding] against the plaintiff terminated in plaintiff's favor;
3. The defendant acted without probable cause in [initiating or procuring the arrest or prosecution of the plaintiff in the criminal action] [commencing or maintaining the civil proceeding]; and
4. The defendant acted with malice; and
5. The malicious actions of the defendant caused plaintiff to suffer injury, damage, loss or harm. | TOP |
Favorable termination of the prior [criminal prosecution] [civil proceeding] means that the termination was of such a nature as to indicate [the innocence of the plaintiff in the prior criminal prosecution] [the freedom from liability of the plaintiff in the prior civil proceeding].
[The prior [criminal prosecution] [civil proceeding] terminated in favor of the plaintiff.]
[If you find the following facts to be true then you must find that the prior [criminal prosecution] [civil proceeding] terminated in favor of the plaintiff in this case:
__________________________________________________________
__________________________________________________________
_________________________________________________________.] | TOP |
[To constitute probable cause for the [prosecution of a criminal action] [initiation or maintenance of a civil proceeding] against the plaintiff in this case, the evidence must establish that:
________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
____________________________________________________________.
If you find from all the evidence that the foregoing facts are true, you must find that there was probable cause for the [prosecution of the criminal action] [initiation or maintenance of the civil proceeding] against plaintiff.
If you find that such facts are not true, you must find that there was not probable cause for the [prosecution of the criminal action] [initiation or maintenance of the civil proceeding] against plaintiff.]
[The defendant __________ acted without probable cause in [initiating or procuring the arrest or prosecution of the plaintiff in the criminal action] [commencing or maintaining the civil proceeding].] | TOP |
The words "malice" and "malicious" mean a wish to vex, annoy, or injure another person. Malice means that attitude or state of mind which actuates the doing of an act for some improper or wrongful motive or purpose. It does not necessarily require that the defendant be angry or vindictive or bear any actual hostility or ill will toward the plaintiff.
Malice, like any other fact, may be proved by direct or circumstantial evidence. | TOP |
If you find that the defendant, in good faith, sought the advice of an attorney before [procuring the arrest of plaintiff] [or] [initiating the prosecution of the criminal action] [commencing or maintaining the civil proceeding against plaintiff] and made a full, fair and complete disclosure to such attorney of all the pertinent and material facts of which the defendant had knowledge tending to prove or disprove the [criminal charge] [civil allegations] and thereafter the defendant acted upon the advice of the attorney and in the belief of plaintiff's [guilt of the offense] [civil liability for the alleged wrong], then you must find that there was probable cause in [procuring the arrest of plaintiff [or] initiating the prosecution of the criminal action] [commencing or maintaining the civil proceeding against plaintiff]. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of battery.
The essential elements of a claim for battery are:
1. Defendant intentionally did an act which resulted in a harmful [or offensive] contact with the plaintiff's person;
2. Plaintiff did not consent to the contact;
3. The harmful [or offensive] contact caused injury, damage, loss or harm to the plaintiff. | TOP |
A contact with the plaintiff's person is offensive if it offends a reasonable sense of personal dignity.
To be offensive, the contact must be of a character that would offend a person of ordinary sensitivity, and be unwarranted by the social usages prevalent at the time and place at which the contact is made. | TOP |
Consent is the actual or apparent willingness for conduct of another to occur.
Actual consent may be expressed in words or acts [, or silence or inaction, when the circumstances or other evidence establish that the silence or inaction is intended to give consent]; [actual consent need not be communicated to the person making the contact].
Apparent consent exists when a person's acts or words, silence or inaction, would be understood by a reasonable person as intended to indicate consent, and are in fact so understood by the person doing the act resulting in contact. [An honest but unreasonable belief that the other person is consenting to a contact does not constitute apparent consent.]
[Consent must be [informed and] freely given. Consent induced by [fraud] [a substantial mistake,] [or] [duress] is not freely given.]
[Submission to an unlawful [arrest] [or] [detention] is not consent.] | TOP |
A peace officer who is making a lawful [arrest] [or] [detention] may use reasonable force to make such [arrest,] [or] [detention,] to prevent escape, or to overcome resistance.
The officer need not retreat or desist from [his] [her] efforts by reason of the resistance or threatened resistance of the person being [arrested] [or] [detained].
Where a peace officer is making an [arrest] [or] [detention], and [the] [a] person being [arrested] [or] [detained] has knowledge, or by the exercise of reasonable care should have knowledge, that [he] [she] is being [arrested] [or] [detained] by a peace officer, it is the duty of the person to refrain from using force [or any weapon] to resist such [arrest] [or] [detention] [unless unreasonable or excessive force is being used to make the [arrest] [or] [detention]].
A peace officer who uses unreasonable or excessive force in making a lawful [arrest] [or] [detention] commits a battery upon the person being [arrested] [or] [detained] as to such excessive force[.] [and the person being [arrested] [or] [detained] may use reasonable force in self defense against such excessive force.]
A __________ (public officer, deputy sheriff) is a peace officer. | TOP |
A person may use reasonable force to defend [himself] [herself] [__________] against harmful or offensive contact which [he] [she] honestly and reasonably believes that another is about to inflict upon [him] [her] [__________].
However, the person who acts in self defense may only use such force as reasonably appears necessary under the existing circumstances. [If the person resisting a harmful or offensive contact uses excessive force, such person commits a battery as to such excessive force.]
[Words alone no matter how objectionable or insulting, do not give the offended person a right to use physical force against the person who uttered them.] | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of sexual battery.
The essential elements of a claim for sexual battery are:
1. Defendant did an act that results directly or indirectly in a sexually offensive contact with the plaintiff's person;
2. Defendant did so with the intent [to cause a harmful or offensive contact with an intimate part of another] [or] [to cause a harmful or offensive contact with another by use of defendant's intimate parts] [or] [to cause plaintiff an imminent apprehension of a harmful or offensive contact] [with plaintiff's intimate part] [or] [by use of defendant's intimate parts];
3. Plaintiff did not consent to [the contact] [defendant's conduct]; and
4. [The harmful or offensive contact] [Defendants conduct] caused plaintiff to suffer injury, damage, loss or harm.
"Intimate part" means the [[sexual organ] [,] [anus] [,] [groin] [or] [buttocks] of any person] [, or the breast of a female].
"Offensive contact" means contact that offends a reasonable sense of personal dignity. | TOP |
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of stalking.
The essential elements of such a claim are:
1. The defendant engaged in a pattern of conduct the intent of which was to follow, alarm or harass the plaintiff;
2. As a result of that pattern of conduct, plaintiff reasonably feared for [his] [her] safety or the safety of an immediate family member;
[3. A. The defendant as a part of such pattern of conduct made a credible threat with the intent to place plaintiff in reasonable fear for [his] [her] safety, or the safety of an immediate family member;
B. On at least one occasion the plaintiff clearly and definitively demanded that the defendant cease and abate [his] [her] pattern of conduct; and
C. The defendant persisted in [his] [her] pattern of conduct;]
[or]
[3. The defendant violated a restraining order [,including but not limited to, any order issued pursuant to Section 527.6 of the Code of Civil Procedure,] prohibiting any act, or conduct, the intent of which was to follow, alarm, or harass the plaintiff;]
[and]
4. The defendant's pattern of conduct caused plaintiff to suffer injury, damage, loss or harm.
"Credible threat" means a verbal or written threat or a threat implied by a pattern of conduct, or a combination of verbal or written statements and conduct, made with the intent and apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for [his] [or] [her] safety or the safety of an immediate family member.
"Pattern of conduct" means conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.
["Harass" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments or terrorizes the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.]
[Immediate family means a ____________________.]
In order to establish essential element number one, plaintiff's testimony concerning the defendant's pattern of conduct must be corroborated by other independent evidence. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of [false imprisonment] [or] [false arrest].
The essential elements of a claim for [false imprisonment] [and] [false arrest] are:
[1. The defendant intentionally and unlawfully exercised force or the express or implied threat of force to restrain, detain or confine the plaintiff;
2. The restraint, detention or confinement compelled the plaintiff to stay or go somewhere for some appreciable time, however short;
3. The plaintiff did not consent to such restraint, detention or confinement;]
[1. The plaintiff was unlawfully arrested and taken into custody;] [or] [The plaintiff was lawfully arrested but an unreasonable delay occurred [in taking the plaintiff before a magistrate] [before plaintiff was released from custody];
[2. The defendant authorized, encouraged, directed or assisted an officer in [either] [doing an unlawful act] [or] procuring without process, plaintiff's arrest;]]
[[4.] [3.] The [restraint, detention or confinement] [arrest] caused plaintiff to suffer injury, damage, loss or harm.]
[It is not necessary to constitute false imprisonment that there be confinement in a jail or prison.] | TOP |
A peace officer may, without a warrant, lawfully arrest a person:
[Whenever the officer has reasonable cause to believe that the person to be arrested has committed a public offense in the officer's presence.]
[When a person arrested has committed a felony, although not in the officer's presence.]
[Whenever the officer has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.]
__________ is a [felony] [public offense]. | TOP |
A private person may lawfully arrest another:
[For a public offense or felony committed or attempted in his presence.]
[When the person arrested has committed a felony, although not in the presence of the person making the arrest.]
[When a felony has been in fact committed, and the person making the arrest has reasonable cause for believing the person arrested to have committed it.]
__________ is a [felony] [public offense]. | TOP |
The owner of property may, for the purpose of protecting it, detain, for a reasonable time and for the purpose of investigation, one whom [he] [she] has probable cause to believe is [stealing] [or] [damaging] it.
[In making the detention a merchant may use a reasonable amount of nondeadly force for self-protection or to prevent escape of the person detained or loss of property]. | TOP |
[If you find that:
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
you must find that there was reasonable cause to [arrest] [detain] the plaintiff.
If you find that such facts are not true, you must find that there was not reasonable cause to [arrest] [detain] the plaintiff.]
[The plaintiff was not lawfully [arrested] [detained]. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of abuse of process.
The essential elements of such claim are:
1. That the defendant used a legal process in a wrongful manner, not proper in the regular conduct of a proceeding, to accomplish a purpose for which it was not designed;
2. That the defendant acted with an ulterior motive;
3. That a willful act or threat was committed by defendant, not authorized by the process and not proper in the regular conduct of the proceedings;
4. That the defendant's misuse of the legal process was a cause of injury, damage, loss or harm to the plaintiff | TOP |
An abuse of process is the misuse of the power of the court. It is an act done in the name of the court and under its authority by means of use of a legal process not proper in the conduct of a proceeding for the purpose of perpetrating an injustice. | TOP |
Mere ill will against the adverse party in the proceeding in which the legal process was used does not constitute an ulterior or improper motive. Mere vexation or harassment are not sufficient objectives to constitute abuse of process. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim that defendant __________ induced a breach of plaintiff's contract with __________ (third party).
The essential elements of such a claim are:
1. A [valid] contract existed between plaintiff and __________ (third party);
2. The defendant knew of the existence of this contract;
3. The defendant intentionally engaged in acts or conduct which induced the third party to breach the contract with plaintiff;
4. The defendant intended to induce a breach of such contract;
5. The contract was in fact breached;
6. The acts and conduct of the defendant which induced the breach caused damage to the plaintiff. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim that defendant __________ interfered with plaintiff's contractual relations with __________ (third party).
The essential elements of such a claim are:
1. A [valid] contract existed between plaintiff and __________ (third party);
2. The defendant knew of the existence of this contract;
3. The defendant intentionally engaged in acts or conduct which [prevented plaintiff's performance of the contract,] [or] [caused plaintiff's performance to be more expensive or burdensome];
4. The defendant intended to [prevent plaintiff's performance] [or] [cause plaintiff's performance to be more expensive or burdensome];
5. The acts or conduct of the defendant which interfered with plaintiff's contractual relations were a cause of damage to the plaintiff. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of negligent interference with prospective economic advantage.
The essential elements of such a claim are:
1. An economic relationship existed between the plaintiff and __________ (third party), containing a probable future economic benefit or advantage to plaintiff;
2. The defendant knew of the existence of the relationship and was aware or should have been aware that if [he] [she] [it] did not act with due care [his] [her] [its] actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship;
3. The defendant was negligent, that is, failed to exercise due care; and
4. The negligence of the defendant caused plaintiff damage, namely, the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage from the relationship. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of intentional interference with prospective economic advantage.
The essential elements of such a claim are:
1. An economic relationship existed between the plaintiff and __________ (third party), containing a probable future economic benefit or advantage to plaintiff;
2. The defendant knew of the existence of the relationship;
3. The defendant intentionally engaged in acts or conduct designed to interfere with or disrupt this relationship;
4. The economic relationship was actually interfered with or disrupted; and
5. The acts of the defendant which were designed to interfere with or disrupt this relationship caused damage to the plaintiff. | TOP |
If you find that [the] [a] defendant knew of the existence of [a plaintiff's contract] [plaintiff's business relationship conferring prospective economic advantage] and intentionally engaged in acts or conduct which were substantially certain to [induce a breach of contract] [prevent plaintiff's performance or make such performance more expensive or burdensome] [interfere with plaintiff's prospective economic advantage] you may, but are not required to, infer that [such] defendant intended to [induce a breach of contract] [interfere with plaintiff's contractual relations] [interfere with plaintiff's prospective economic advantage] | TOP |
As used in the preceding instruction, "wrongful means" includes:
[1. Threats of physical violence and the infliction of physical violence.] [or]
[2. Fraudulent misrepresentations. A representation is fraudulent when, to the knowledge or belief of its maker, it is false in the sense in which it is intended to be understood by its recipient.] [or]
[3. False personal or product disparagement or defamation.] [or]
[4. Litigation or the threat of litigation if the defendant has no belief in the merit of the litigation or if, though having some belief in its merit, institutes or threatens to institute the litigation in bad faith, intending only to harass third parties and not to bring the claim to a definitive adjudication.] [or]
[5. Causing, or threatening to cause, in bad faith the institution of criminal prosecution.] [or]
[6. Unlawful conduct.] [or]
[7. Conduct which violates established business customs, standards, or ethics.] [or]
[8. ______________________________________________
______________________________________________
______________________________________________ | TOP |
Ordinarily, a person who engages in business with the primary aim of making profits for himself or herself is not liable for business losses suffered by a competitor. The privilege of competition is an affirmative defense to a claim of [interference with prospective economic advantage] [inducing breach of a contract terminable at will] [interference with contractual relations where the contract was terminable at will].
The essential elements of the privilege of competition are:
1. The plaintiff and defendant were engaged in economic competition;
2. The economic relationship between the plaintiff and __________ (third party) concerns a matter involved in the competition between the plaintiff and defendant;
3. The defendant did not use wrongful means; [and]
4. The defendant's purpose was at least in part to advance [his] [or] [her] interest in competing with the plaintiff[.] [; and
5. The defendant's action did not create or continue an unlawful restraint of trade.] | TOP |
[To establish there was no probable cause for the denial of the existence of a contract by the defendant in this case, the evidence must establish that the defendant [__________] was aware of the following:
________________________________________________________
_____________________________________________________________
_____________________________________________________________
____________________________________________________________.
If you find from all the evidence that the defendant [__________] was aware of all of these matters, you must find that there was no probable cause for the denial of the existence of a contract by the defendant.
If you find that defendant was not aware of all of such matters, or that any of such matters are not true, you must find that there was probable cause for the denial of the existence of a contract by the defendant.]
[There was no probable cause for the denial of the existence of a contract.] | TOP |
An essential element of the claim is that the defendant has denied that a contract existed.
Disputes between parties to a contract as to [its terms,] [its interpretation,] [its performance,] [or] [a denial of liability which does not contest the contract's existence], do not constitute a denial that a contract existed. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim that defendant in bad faith denied the existence of a contract.
The essential elements of such a claim are:
1. A [valid] contract existed between plaintiff and defendant;
2. Defendant breached the contract;
3. Defendant without probable cause and with no good faith belief in the existence of a defense to an action on the contract, denied that any contract existed; and
4. Defendant's denial caused plaintiff to suffer damage. | TOP |
If you find that plaintiff is entitled to a verdict against defendant based upon the claim of [inducing breach of contract] [or] [interference with contractual relations] [or] [interference with prospective economic advantage] [or _______________________], you must then award plaintiff damages in an amount that will reasonably compensate plaintiff for all loss or harm, providing that you find it was [or will be] suffered by plaintiff and caused by the defendant's conduct. The amount of such award shall include:
1. The financial loss of the benefits of the [contract] [or] [the prospective economic relationship];
2. [Emotional distress] [or] [actual harm to reputation] if such was reasonably to be expected to result from the interference[.][;] and
[3. Consequential losses caused by the interference.] | TOP |
The plaintiff __________ [also] seeks to recover damages for a violation of civil rights.
The essential elements of this claim are:
1. The defendant interfered or attempted to interfere by threats, intimidation, or coercion with the exercise or enjoyment by plaintiff of rights secured [by the Constitution] [or] [laws of the United States] [, or] [by the Constitution] [or] [laws of California];
2. The interference, or attempted interference caused plaintiff to suffer injury, damage, loss or harm.
[Speech alone is not sufficient, unless the speech itself threatens violence against plaintiff, or a group of which plaintiff is a member, and plaintiff reasonably fears that, because of the speech, violence will be committed against plaintiff's person or property and that the defendant had the apparent ability to carry out the threat.] | TOP |
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of sexual harassment arising out of a business, service or professional relationship.
The essential elements of such a claim are:
1. There was a business, service or professional relationship between the plaintiff and defendant;
2. The defendant has made sexual advances, solicitations, sexual requests or demands for sexual compliance by the plaintiff;
3. Such conduct by the defendant was unwelcome by the plaintiff and was persistent or severe, continuing after a request by the plaintiff to stop;
4. Plaintiff was unable to easily terminate the relationship without tangible hardship; and
5. Such conduct by the defendant caused plaintiff to suffer [or will cause plaintiff to suffer,] injury, damage, loss or harm.
A business, service or professional relationship includes [____________________] (physician-patient, etc.) [a relationship that is substantially similar to that of ____________________]. (physician-patient, etc.) | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of intentional spoliation of evidence.
The elements of such a claim are:
1. Plaintiff possessed a [potential defense to a] claim for damages [against] [by] __________ (defendant, third party);
2. Defendant knew of the existence of this [defense to a] claim for damages [against] [by] __________ (itself, third party);
3. Defendant knew of the existence of __________ (writing, record, physical object, etc.) and was aware that it might constitute evidence in [pending] [or] [potential] civil litigation involving plaintiff;
4. Defendant engaged in acts or conduct intended to cause the destruction, damage, loss or concealment of the __________ (writing, record, physical object, etc.);
5. Defendant's acts or conduct caused the destruction, damage, loss or concealment of the potential evidence; and
6. As a result, plaintiff sustained damage, namely plaintiff's opportunity to prove its [claim] [defense] was interfered with substantially. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of negligent spoliation of evidence.
The elements of such a claim are:
1. Plaintiff possessed a [potential defense to a] claim for damages [against] [by] __________ (defendant, third party);
2. Defendant knew or reasonably should have known of this [potential defense to a] claim for damages [against] [by] __________ (itself, third party);
3. Defendant knew or reasonably should have known of the existence of __________ (writing, record, physical object, etc.) and knew or reasonably should have known that it might constitute evidence in [pending] [or] [potential] litigation involving plaintiff [or other persons];
4. Defendant knew or reasonably should have known that if [he] [she] [it] did not act with reasonable care to preserve the __________ (writing, record, physical object, etc.), the potential evidence could be destroyed, damaged, lost or concealed;
5. Defendant failed to act with reasonable care;
6. Defendant's failure to act with reasonable care caused the destruction, damage to, loss or concealment of such evidence;
7. As a result, plaintiff sustained damage, namely plaintiff's opportunity to prove its [claim] [defense] was interfered with substantially. | TOP |
If you find that plaintiff is entitled to a verdict against [a] defendant based upon a claim of [intentional] [or] [negligent] spoliation of evidence, you must award plaintiff damages to compensate for loss or harm providing that you find it was [or will be] suffered by plaintiff and caused by the defendant's acts or omission upon which you base your finding of liability [subject to being reduced if you find that plaintiff was contributorily [negligent] [at fault]]. In this regard, plaintiff is entitled to recover reasonable compensation for:
1. Any economic loss resulting from the spoliation of evidence namely, (1) the difference between what plaintiff [received] [was found subject to liability for] [paid] by way of [verdict] [settlement] and the sum of money it is reasonably probable plaintiff would have [received] [been found subject to liability for] [been paid in settlement] had the potential evidence not been __________ (destroyed, etc.), and (2) any out of pocket expenses paid or incurred, which would not otherwise have been paid or incurred had there been no spoliation[.][; and]
[2. Any mental or emotional distress not otherwise compensated by way of economic loss.] | TOP |