Campbell v. Feld Entertainment, Inc et al
Filing
352
FINAL JURY INSTRUCTIONS (ANNOTATED). Signed by Judge Lucy H. Koh on 2/18/2015. (lhklc3, COURT STAFF) (Filed on 2/18/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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SHANNON CAMPBELL,
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Plaintiff,
v.
FELD ENTERTAINMENT, INC., and
MICHAEL STUART,
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Defendants.
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MARK ENNIS,
Plaintiff,
v.
FELD ENTERTAINMENT, INC., and
MICHAEL STUART,
Defendants.
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Case Nos.: 12-CV-04233-LHK
13-CV-00233-LHK
FINAL JURY INSTRUCTIONS
(ANNOTATED)
The parties shall file any objections not previously lodged with the Court by February 19,
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2015, at 4:00 p.m.
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IT IS SO ORDERED.
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Dated: February 18, 2015
_______________________________
LUCY H. KOH
United States District Judge
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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I.
GENERAL INSTRUCTIONS
1. DUTY OF JURY
Members of the Jury: Now that you have heard all of the evidence and will hear the arguments of
the attorneys, it is my duty to instruct you as to the law of the case.
Each of you has received a copy of these instructions that you may take with you to the jury room
to consult during your deliberations.
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United States District Court
For the Northern District of California
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You must not infer from these instructions or from anything I may say or do as indicating that I
have an opinion regarding the evidence or what your verdict should be.
It is your duty to find the facts from all the evidence in the case. To those facts you will apply the
law as I give it to you. You must follow the law as I give it to you whether you agree with it or
not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or
sympathy. That means that you must decide the case solely on the evidence before you. You will
recall that you took an oath to do so.
In following my instructions, you must follow all of them and not single out some and ignore
others; they are all important.
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Source: Ninth Circuit Model Civil Jury Instructions - 1.1C (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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2. BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE
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When a party has the burden of proof on any claim by a preponderance of the evidence, it means
you must be persuaded by the evidence that the claim is more probably true than not true.
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You should base your decision on all of the evidence, regardless of which party presented it.
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Source: Ninth Circuit Model Civil Jury Instructions - 1.3 (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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3. BURDEN OF PROOF – CLEAR AND CONVINCING EVIDENCE
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When a party has the burden of proving any claim or defense by clear and convincing evidence, it
means you must be persuaded by the evidence that the claim or defense is highly probable. This is
a higher standard of proof than proof by a preponderance of the evidence.
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You should base your decision on all of the evidence, regardless of which party presented it.
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Source: Ninth Circuit Model Civil Jury Instructions - 1.4 (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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4. TWO OR MORE PARTIES – DIFFERENT LEGAL RIGHTS
You should decide the case as to each party separately. Unless otherwise stated, the instructions
apply to all parties.
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Source: Ninth Circuit Model Civil Jury Instructions - 1.5 (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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5. WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
(1) the sworn testimony of any witness;
(2) the exhibits which are received in evidence; and
(3) any facts to which the lawyers have agreed.
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Source: Ninth Circuit Model Civil Jury Instructions - 1.6 (2007 Edition).
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For the Northern District of California
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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6. WHAT IS NOT EVIDENCE
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In reaching your verdict, you may consider only the testimony and exhibits received into evidence.
Certain things are not evidence, and you may not consider them in deciding what the facts are. I
will list them for you:
(1) Arguments and statements by lawyers are not evidence. The lawyers are not
witnesses. What they have said in their opening statements, will say in their closing
arguments, and at other times is intended to help you interpret the evidence, but it is
not evidence. If the facts as you remember them differ from the way the lawyers
have stated them, your memory of them controls.
(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to
their clients to object when they believe a question is improper under the rules of
evidence. You should not be influenced by the objection or by the Court’s ruling on
it.
(3) Testimony that has been excluded or stricken, or that you have been instructed to
disregard, is not evidence and must not be considered. In addition, sometimes
testimony and exhibits are received only for a limited purpose; when I give a
limiting instruction, you must follow it.
(4) Anything you may have seen or heard when the Court was not in session is not
evidence. You are to decide the case solely on the evidence received at the trial.
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United States District Court
For the Northern District of California
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Source: Ninth Circuit Model Civil Jury Instructions - 1.7 (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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7. DIRECT OR CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as
testimony by a witness about what that witness personally saw or heard or did. Circumstantial
evidence is proof of one or more facts from which you could find another fact. You should
consider both kinds of evidence. The law makes no distinction between the weight to be given to
either direct or circumstantial evidence. It is for you to decide how much weight to give to any
evidence.
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Source: Ninth Circuit Model Civil Jury Instructions - 1.9 (2007 Edition).
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For the Northern District of California
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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8. CREDIBILITY OF WITNESSES
In deciding the facts in this case, you may have to decide which testimony to believe and which
testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
Proof of a fact does not necessarily depend on the number of witnesses who testify about it.
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In considering the testimony of any witness, you may take into account:
(1) the opportunity and ability of the witness to see or hear or know the things testified to;
(2) the witness’s memory;
(3) the witness’s manner while testifying;
(4) the witness’s interest in the outcome of the case and any bias or prejudice;
(5) whether other evidence contradicted the witness’s testimony;
(6) the reasonableness of the witness’s testimony in light of all the evidence; and
(7) any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of witnesses
who testify about it.
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Source: Ninth Circuit Model Civil Jury Instructions - 1.11 (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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9. EVIDENCE FOR LIMITED PURPOSE
Some evidence may be admitted for a limited purpose only.
When I instruct you that an item of evidence has been admitted for a limited purpose, you must
consider it only for that limited purpose and for no other.
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Source: Ninth Circuit Model Civil Jury Instructions – 1.8 (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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10. DEPOSITION IN LIEU OF LIVE TESTIMONY
A deposition is the sworn testimony of a witness taken before trial. The witness is placed under
oath to tell the truth and lawyers for each party may ask questions. The questions and answers are
recorded.
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When a person is unavailable to testify at trial, the deposition of that person may be used at the
trial. You should consider deposition testimony, presented to you in court in lieu of live testimony,
insofar as possible, in the same way as if the witness had been present to testify.
Do not place any significance on the behavior or tone of voice of any person reading the questions
or answers.
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Source: Ninth Circuit Model Civil Jury Instructions - 2.4 (2007 Edition).
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For the Northern District of California
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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11. IMPEACHMENT EVIDENCE – WITNESS
The evidence that a witness lied under oath on a prior occasion may be considered, along with all
other evidence, in deciding whether or not to believe the witness and how much weight to give to
the testimony of the witness and for no other purpose.
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Source: Ninth Circuit Model Civil Jury Instructions - 2.8 (2007 Edition).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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12. EVIDENCE IN ELECTRONIC FORMAT
Exhibits capable of being displayed electronically will be provided to you in that form, and you
will be able to view them using equipment provided to you in the jury room.
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United States District Court
For the Northern District of California
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A court technician will show you how to operate the equipment and how to locate and view the
exhibits. You will also be provided with a list of all exhibits received in evidence. If you need
additional equipment or supplies, you may make a request by sending a note.
In the event of any technical problem, or if you have questions about how to operate the
equipment, you may send a note to the Bailiff, signed by your presiding juror or by one or more
members of the jury. Be as brief as possible in describing the problem and do not refer to or
discuss any exhibit you were attempting to view.
If a technical problem or question requires hands-on maintenance or instruction, a court technician
may enter the jury room with the courtroom deputy present for the sole purpose of assuring that the
only matter that is discussed is the technical problem. When the court technician or any non-juror
is in the jury room, the jury shall not deliberate. No juror may say anything to the court technician
or any non-juror other than to describe the technical problem or to seek information about
operation of equipment. Do not discuss any exhibit or any aspect of the case.
The sole purpose of providing the equipment in the jury room is to enable jurors to view the
exhibits received in evidence in this case. You may not use the equipment for any other purpose.
At my direction, technicians have taken steps to make sure that the equipment does not permit
access to the Internet or to any “outside” website, database, directory, game, or other material. Do
not attempt to alter the equipment to obtain access to such materials. If you discover that the
equipment provides or allows access to such materials, you must inform me immediately and
refrain from viewing such materials. Do not remove the equipment or exhibits from the jury room,
and do not copy the exhibits.
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Source: Ninth Circuit Model Civil Jury Instructions - 2.14 (2007 Edition) (modified).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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II.
CAUSES OF ACTION
13. INTRODUCTION
Ms. Campbell has brought the following causes of action against Feld Entertainment, Inc.:
(1) Ralph Act, Cal. Civ. Code § 51.7;
(2) Bane Act, Cal. Civ. Code § 52.1 (based only on Cal. Civ. Code § 43);
(3) Battery; and
(4) Assault.
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Ms. Campbell has brought the following causes of action against Mr. Stuart:
(1) Ralph Act, Cal. Civ. Code § 51.7;
(2) Bane Act, Cal. Civ. Code § 52.1 (based only on Cal. Civ. Code § 43); and
(3) Battery.
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United States District Court
For the Northern District of California
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Mr. Ennis has brought the following causes of action against Feld Entertainment, Inc.:
(1) Ralph Act, Cal. Civ. Code § 51.7;
(2) Bane Act, Cal. Civ. Code § 52.1 (based only on Cal. Civ. Code § 43); and
(3) Battery.
Mr. Ennis has brought the following causes of action against Mr. Stuart:
(1) Ralph Act, Cal. Civ. Code § 51.7;
(2) Bane Act, Cal. Civ. Code § 52.1 (based only on Cal. Civ. Code § 43); and
(3) Battery.
Ms. Campbell and Mr. Ennis bear the burden of proving each of their causes of action by a
preponderance of the evidence.
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Sources: ECF Nos. 233, 235, 243, 285.
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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14. RALPH ACT – ACTS OF VIOLENCE – ESSENTIAL FACTUAL ELEMENTS
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To establish a Ralph Act claim based on an act of violence, a plaintiff must prove all of the
following:
(1) That the defendant committed an act of violence against the plaintiff;
(2) That the act was taken because of the defendant’s perception of the plaintiff’s political
affiliation;
(3) That the plaintiff was harmed; and
(4) That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
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Sources: Cal. Civ. Code § 51.7(a); CACI § 3063 (modified).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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15. RALPH ACT – THREATS OF VIOLENCE – ESSENTIAL FACTUAL ELEMENTS
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To establish a Ralph Act claim based on a threat of violence, a plaintiff must prove all of the
following:
(1) That the defendant intentionally threatened violence against the plaintiff, whether or not the
defendant actually intended to carry out the threat;
(2) That the threat was made because of the defendant’s perception of the plaintiff’s political
affiliation;
(3) That a reasonable person in the plaintiff’s position would have believed that the defendant
would carry out the threat.
(4) That a reasonable person in the plaintiff’s position would have been intimidated by the
defendant’s conduct;
(5) That the plaintiff was harmed; and
(6) That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
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For the Northern District of California
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Sources: Cal. Civ. Code § 51.7(a); CACI § 3064 (modified).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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16. RALPH ACT – DEFINITION OF VIOLENCE
“Violence” means the wrongful application of physical force against the property or the person of
another.
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Sources: People v. Bravot, 183 Cal. App. 3d 93, 97 (1985); Arellano v. Cnty. of L.A., No.
B213224, 2010 WL 2905954, at *4 (Cal. Ct. App. July 27, 2010) (unpublished); see also Bolbol et
al. v. Feld Entm’t, Inc., et al., No. CV 11-05539-PSG (Jury Instructions) (Feb. 14, 2013) (ECF No.
250).
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For the Northern District of California
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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17. RALPH ACT – POLITICAL AFFILIATION
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Ms. Campbell and Mr. Ennis are animal rights activists who demonstrate against and videotape
what they consider to be the mistreatment of circus animals. Ms. Campbell and Mr. Ennis’s
activism and membership in Humanity Through Education constitute political affiliation for
purposes of the Ralph Act.
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Source: ECF No. 286.
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
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18. CAUSATION – SUBSTANTIAL FACTOR
A substantial factor in causing harm is a factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the
only cause of the harm.
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Conduct is not a substantial factor in causing harm if the same harm would have occurred without
that conduct.
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Sources: CACI § 430; see also Guide for Using Judicial Council of California Civil Jury
Instructions, at xxviii (“The instructions frequently use the term ‘substantial factor’ to state the
element of causation, rather than referring to ‘cause’ and then defining that term in a separate
instruction as a ‘substantial factor.’ An instruction that defines ‘substantial factor’ is located in the
Negligence series. The use of the instruction is not intended to be limited to cases involving
negligence.”).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
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19. BANE ACT – ESSENTIAL FACTUAL ELEMENTS
To establish a Bane Act claim predicated on Cal. Civ. Code § 43, a plaintiff must prove all of the
following:
(1) That the defendant violated or attempted to violate the plaintiff’s right of protection from
bodily restraint or harm;
(2) That the defendant used threats, intimidation, or coercion in violating or attempting to
violate the plaintiff’s right of protection from bodily restraint or harm;
(3) That the plaintiff was harmed; and
(4) That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
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Sources: Cal. Civ. Code § 52.1; Cal. Civ. Code § 43; CACI § 3066 (modified); Austin B. v.
Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007) (“The word ‘interferes’ as used in
the Bane Act means ‘violates.’”).
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For the Northern District of California
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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20. RIGHT OF PROTECTION FROM BODILY RESTRAINT OR HARM
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Under Cal. Civ. Code § 43, citizens have a right of protection from bodily restraint or harm, which
refers to an individual’s right to be free from physical attack or the threat thereof.
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Sources: Cal. Civ. Code § 43; Atilano v. Cnty. of Butte, No. CV 07-0384-FCD, 2008 WL 4078809,
at *6 (E.D. Cal. Aug. 29, 2008) (quoting People v. Lashley, 1 Cal. App. 4th 938, 951 (1991)).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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21. BANE ACT – DEFINITION OF THREATS, INTIMIDATION, AND COERCION
The terms “threats,” “intimidation,” and “coercion” have the following meaning:
“Threats” are expressions of intent to inflict evil, injury, or damage on another.
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“Intimidation” means putting another person in fear for the purpose of compelling or deterring
conduct.
“Coercion” is the application to another of such force, either physical or moral, as to constrain him
or her to do against his or her will something he or she would not otherwise have done or to
prevent him or her from doing something he or she would otherwise have done.
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Source: Bolbol et al. v. Feld Entm’t, Inc., et al., No. CV 11-05539-PSG (Jury Instructions) (Feb.
14, 2013) (ECF No. 250) (citing In re M.S., 10 Cal. 4th 698, 710 (1995)).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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22. BATTERY – ESSENTIAL FACTUAL ELEMENTS
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To establish a claim for battery, a plaintiff must prove all of the following:
(1) That the defendant touched the plaintiff or caused the plaintiff to be touched with the intent
to harm or offend the plaintiff;
(2) That the plaintiff did not consent to the touching;
(3) That the plaintiff was harmed or offended by the conduct; and
(4) That a reasonable person in the plaintiff’s situation would have been offended by the
touching.
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Sources: CACI § 1300; Yun Hee So v. Sook Ja Shin, 212 Cal. App. 4th 652, 669 (2013).
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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23. ASSAULT – ESSENTIAL FACTUAL ELEMENTS
To establish a claim for assault, a plaintiff must prove all of the following:
(1) That the defendant threatened to touch the plaintiff in a harmful or an offensive manner;
(2) That it reasonably appeared to the plaintiff that the defendant was about to carry out the
threat;
(3) That the plaintiff did not consent to the defendant’s conduct;
(4) That the plaintiff was harmed; and
(5) That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
A touching is offensive if it offends a reasonable sense of personal dignity. Words alone do not
amount to an assault.
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Source: CACI § 1301.
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For the Northern District of California
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Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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24. CONSENT EXPLAINED
For claims of battery and assault, a plaintiff must prove that he or she did not consent to any
touching or threatened touching by the defendant. A plaintiff may express consent by words or
acts that are reasonably understood by another person as consent.
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A plaintiff may also express consent by silence or inaction if a reasonable person would understand
that the silence or inaction intended to indicate consent.
6
7
Source: CACI § 1302.
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
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23
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25
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
25. FEDERAL INJUNCTION LIMITING INSTRUCTION
In August 2009, animal rights activists Joseph Cuviello and Deniz Bolbol obtained an injunction in
federal court allowing them and a limited number of people acting in concert with them, including
Ms. Campbell and Mr. Ennis, to conduct activity such as videotaping, leafletting, or otherwise
protesting near the Oracle Arena (“Arena”) in Oakland, California.
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
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18
19
Under the injunction operating at the time of the August 7, 2012 animal walk held in Oakland, Ms.
Campbell and Mr. Ennis were allowed access to the following areas to conduct activity:
(1) A three-foot “walkway” running along the outside of the chain link fence that encloses the
truck corral;
(2) The barricaded corridor leading to the animal compound, the area outside of but directly
adjacent to the corridor, and the gap between the corridor and the animal compound entrance
except that there shall be a ten-foot buffer zone surrounding the entrance of the compound;
(Ms. Campbell and Mr. Ennis could be temporarily moved from the gap to permit movement
of equipment and animals.)
(3) The upper west landing area, up to the point where the west ramp joins the landing;
(4) One specific spot located in the area adjacent to the entrance to the north tunnel, which has a
clear view of the entire tunnel;
(5) The north ramp and landing;
(6) The northeast stairs and base of the stairs; and
(7) All exterior areas of the Arena and parking lot which are otherwise open to the public.
The injunction was legally binding against the City of Oakland, Alameda County, the OaklandAlameda County Coliseum Authority, and the Oakland Coliseum Joint Venture LLC, among
others. Feld Entertainment, Inc. and Mr. Stuart were not legally bound by that injunction.
You may consider the existence and parameters of the injunction only insofar as you find it
relevant to whether a reasonable person with knowledge of the injunction would have found any of
the alleged touchings or threatened touchings sustained by Ms. Campbell and Mr. Ennis to be
offensive and/or whether Feld Entertainment, Inc. and Mr. Stuart, if they were aware of the
injunction, acted with malice towards Ms. Campbell and Mr. Ennis.
20
21
22
Source: Cuviello v. City of Oakland, No. C-06-5517 EMC, 2012 WL 5628325, at *1-2, *5 (N.D.
Cal. Nov. 15, 2012) (describing the August 2009 injunction and the August 2010 modification
thereto).
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24
25
26
27
28
26
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
26. SELF-DEFENSE
2
To prevail on an affirmative defense of self-defense, a defendant must prove both of the following:
(1) That the defendant reasonably believed that the plaintiff was going to harm him or her; and
(2) That the defendant used only the amount of force that was reasonably necessary to protect
himself or herself.
3
4
5
6
Source: CACI § 1304.
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
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25
26
27
28
27
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
27. AIDING AND ABETTING – ESSENTIAL FACTUAL ELEMENTS
Ms. Campbell and Mr. Ennis claim that they were harmed by Mr. Stuart’s assault and/or battery
and that Mr. Stuart is responsible for that harm. In addition, Ms. Campbell and Mr. Ennis claim
that they were harmed by other Feld Entertainment, Inc. employees’ assault and battery and that
Mr. Stuart is also responsible for that harm because he aided and abetted the other Feld
Entertainment, Inc. employees in committing the assault and battery.
5
6
7
8
9
United States District Court
For the Northern District of California
10
A defendant is responsible as an aider and abetter if the plaintiff proves all of the following:
(1) That the defendant knew that an assault or battery was being committed or going to be
committed by another individual against the plaintiff;
(2) That the defendant gave substantial assistance or encouragement to the other individual;
and
(3) That the defendant’s conduct was a substantial factor in causing harm to the plaintiff.
Mere knowledge that an assault or battery was being committed or going to be committed and the
failure to prevent it do not constitute aiding and abetting.
11
12
Source: CACI § 3610.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
III.
RESPONDEAT SUPERIOR
28. CORPORATIONS – FAIR TREATMENT
All parties are equal before the law and a corporation is entitled to the same fair and conscientious
consideration by you as any party.
5
Source: Ninth Circuit Model Civil Jury Instructions - 4.1 (2007 Edition).
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
29. VICARIOUS LIABILITY
2
An employer is responsible for harm caused by the wrongful conduct of its employees while acting
within the scope of their employment.
3
4
Source: CACI § 3700.
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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25
26
27
28
30
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
5
30. VICARIOUS LIABILITY ASSERTED AGAINST EMPLOYER –
ESSENTIAL FACTUAL ELEMENTS
An employer should be held liable for the harm caused by the unlawful actions of its employees if
the plaintiff proves both of the following:
(1) That the offending individual was employed by the employer; and
(2) That the offending individual was acting within the scope of his or her employment when
the plaintiff was harmed.
6
7
Source: CACI § 3701.
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
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24
25
26
27
28
31
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
31. SCOPE OF EMPLOYMENT
2
Conduct is within the scope of employment if:
(1) It is reasonably related to the kinds of tasks that the employee was employed to perform; or
(2) It is reasonably foreseeable in light of the employer’s business or the employee’s job
responsibilities.
3
4
5
6
Source: CACI § 3720.
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
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25
26
27
28
32
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
32. FORESEEABILITY
Foreseeability means that, in the context of the particular enterprise, an employee’s conduct is not
so unusual or startling that it would seem unfair to include the loss resulting from it among other
costs of the employer’s business. Conduct by an employee is not reasonably foreseeable if it
occurs when the employee substantially deviates from his or her employment duties for personal
purposes or acts out of malice unconnected with the employment.
5
6
Source: Farmers Ins. Grp. v. Cnty. of Santa Clara, 11 Cal. 4th 992, 1004-05 (1995).
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
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21
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23
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25
26
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33
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
33. GOING-AND-COMING RULE
2
In general, an employee is not acting within the scope of employment while traveling to and from
the workplace. But if the employee, while commuting, is on an errand for the employer, then the
employee’s conduct is within the scope of his or her employment from the time the employee starts
on the errand until he or she returns from the errand or until he or she completely abandons the
errand for personal reasons.
3
4
5
6
Source: CACI § 3724.
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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28
34
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
IV.
DAMAGES
34. DAMAGES – PROOF
It is the duty of the Court to instruct you about the measure of damages. By instructing you on
damages, the Court does not mean to suggest for which party your verdict should be rendered.
If you find for Ms. Campbell and Mr. Ennis, you must determine their damages. Ms. Campbell
and Mr. Ennis have the burden of proving damages by a preponderance of the evidence. Damages
means the amount of money that will reasonably and fairly compensate the plaintiff for any injury
you find was caused by the defendants. You should consider the following:
(1) The nature and extent of the injuries; and
(2) The mental, physical, and/or emotional pain and suffering experienced; and
(3) The reasonable value of necessary medical care, treatment, and services received to the
present time.
It is for you to determine what damages, if any, have been proved.
Your award must be based upon evidence and not upon speculation, guesswork, or conjecture.
12
13
Source: Ninth Circuit Model Civil Jury Instruction - 5.1 (2007 Edition).
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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35
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
35. DAMAGES ON MULTIPLE CAUSES OF ACTION
2
Ms. Campbell and Mr. Ennis seek damages from Mr. Stuart and Feld Entertainment, Inc. for each
of their causes of action. However, each item of damages may be awarded only once, regardless of
the number of causes of action alleged.
3
4
5
The following item of damages claimed by Ms. Campbell and Mr. Ennis is recoverable only once:
emotional distress.
6
7
Source: CACI § 3934.
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
36
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
36. DAMAGES AND PENALTY – RALPH ACT
2
If you decide that a plaintiff has proved his or her Ralph Act claim, you must award the following:
(1) Actual damages sufficient to reasonably compensate the plaintiff for the harm;
(2) A civil penalty of $25,000; and
(3) Punitive damages, if any.
3
4
5
6
7
8
The plaintiff must prove the amount of his or her actual damages. However, the plaintiff does not
have to prove the exact amount of the harm or the exact amount of damages that will provide
reasonable compensation for the harm. You must not speculate or guess in awarding damages.
The following is the specific item of damages claimed by Ms. Campbell and Mr. Ennis: emotional
distress.
9
United States District Court
For the Northern District of California
10
Sources: CACI § 3068 (modified); Bolbol et al. v. Feld Entm’t, Inc., et al., No. CV 11-05539-PSG
(Jury Instructions) (Feb. 14, 2013) (ECF No. 250).
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
37
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
37. DAMAGES – BANE ACT
2
If you decide that a plaintiff has proved his or her Bane Act claim, you also must decide how much
money will reasonably compensate the plaintiff for the harm.
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
The plaintiff must prove the amount of his or her actual damages. However, the plaintiff does not
have to prove the exact amount of the harm or the exact amount of damages that will provide
reasonable compensation for the harm. You must not speculate or guess in awarding damages.
The following is the specific item of damages claimed by Ms. Campbell and Mr. Ennis: emotional
distress.
In addition, you may award Ms. Campbell and Mr. Ennis up to three times the amount of their
actual damages as a penalty against Feld Entertainment, Inc. or Mr. Stuart.
Sources: CACI § 3067; Bolbol et al. v. Feld Entm’t, Inc., et al., No. CV 11-05539-PSG (Jury
Instructions) (Feb. 14, 2013) (ECF No. 250).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
38
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
38. EMOTIONAL DISTRESS DAMAGES
2
If you find that Ms. Campbell and Mr. Ennis have proved their claim for emotional distress
damages, you must decide on the amount. No fixed standard exists for deciding the amount of
emotional distress damages. You must use your judgment to decide a reasonable amount based on
the evidence and your common sense.
3
4
5
6
Source: CACI § 3905A (modified).
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
39
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
39. MITIGATION OF DAMAGES
If you decide that a defendant is responsible for the original harm, the plaintiff is not entitled to
recover damages for harm that the defendant proves the plaintiff could have avoided with
reasonable efforts or expenditures.
4
5
6
7
You should consider the reasonableness of the plaintiff’s efforts in light of the circumstances
facing him or her at the time, including his or her ability to make the efforts or expenditures
without undue risk or hardship.
If a plaintiff made reasonable efforts to avoid harm, then your award should include reasonable
amounts that he or she spent for this purpose.
8
9
Source: CACI § 3930.
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
40
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
40. PUNITIVE DAMAGES
2
If you decide that a defendant’s conduct caused the plaintiff’s harm, you must decide whether that
conduct justifies an award of punitive damages. The purposes of punitive damages are to punish a
wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.
3
4
5
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
You may award punitive damages against an individual defendant only if the plaintiff proves by
clear and convincing evidence that the individual engaged in that conduct with malice, oppression,
or fraud.
You may award punitive damages against an entity defendant only if the plaintiff proves by clear
and convincing evidence that the entity acted with malice, oppression, or fraud. To do this, the
plaintiff must prove the following by clear and convincing evidence:
(1) That the malice, oppression, or fraud was the conduct of one or more officers, directors, or
managing agents of the entity, who acted on behalf of the entity; or
(2) That an officer, a director, or a managing agent of the entity had advance knowledge of the
unfitness of the entity’s employees and employed them with a knowing disregard of the
rights or safety of others; or
(3) That the conduct constituting malice, oppression, or fraud was authorized by one or more
officers, directors, or managing agents of the entity; or
(4) That one or more officers, directors, or managing agents of the entity knew of the conduct
constituting malice, oppression, or fraud and adopted or approved that conduct after it
occurred.
“Malice” means that a defendant acted with intent to cause injury or that a defendant’s conduct was
despicable and was done with a willful and knowing disregard of the rights or safety of another. A
defendant acts with knowing disregard when the defendant is aware of the probable dangerous
consequences of his or its conduct and deliberately fails to avoid those consequences.
“Oppression” means that a defendant’s conduct was despicable and subjected the plaintiff to cruel
and unjust hardship in knowing disregard of his or her rights.
19
20
21
22
23
24
25
26
27
28
“Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down
on and despised by reasonable people.
“Fraud” means that a defendant intentionally misrepresented or concealed a material fact and did
so intend to harm the plaintiff.
An employee is a “managing agent” if he or she exercises substantial independent authority and
judgment in his or her corporate decisionmaking such that his or her decisions ultimately determine
corporate policy.
There is no fixed formula for determining the amount of punitive damages, and you are not
required to award any punitive damages. If you decide to award punitive damages, you should
consider all of the following factors in determining the amount:
(1) How reprehensible was that defendant’s conduct? In deciding how reprehensible a
defendant’s conduct was, you may consider, among other factors:
(a) Whether the conduct caused physical harm;
41
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
5
6
(b) Whether the defendant disregarded the health or safety of others;
(c) Whether the plaintiff was financially weak or vulnerable and the defendant knew the
plaintiff was financially weak or vulnerable and took advantage of him or her;
(d) Whether the defendant’s conduct involved a pattern or practice; and
(e) Whether the defendant acted with trickery or deceit.
(2) Is there a reasonable relationship between the amount of punitive damages and the
plaintiff’s harm that the defendant knew was likely to occur because of his or its conduct?
(3) In view of that defendant’s financial condition, what amount is necessary to punish him or
it and discourage future wrongful conduct? You may not increase the punitive award above
an amount that is otherwise appropriate merely because a defendant has substantial
financial resources. Any award you impose may not exceed that defendant’s ability to pay.
7
8
9
Sources: CACI § 3947; Bolbol et al. v. Feld Entm’t, Inc., et al., No. CV 11-05539-PSG (Jury
Instructions) (Feb. 14, 2013) (ECF No. 250).
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
42
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
4
5
V.
CLOSING INSTRUCTIONS
41. DUTY TO DELIBERATE
When you begin your deliberations, you should elect one member of the jury as your presiding
juror. That person will preside over the deliberations and speak for you here in court.
You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your
verdict must be unanimous.
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
Each of you must decide the case for yourself, but you should do so only after you have considered
all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow
jurors.
Do not hesitate to change your opinion if the discussion persuades you that you should. Do not
come to a decision simply because other jurors think it is right.
It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can
do so after having made your own conscientious decision. Do not change an honest belief about
the weight and effect of the evidence simply to reach a verdict.
13
14
Source: Ninth Circuit Model Civil Jury Instructions - 3.1 (2007 Edition).
15
16
17
18
19
20
21
22
23
24
25
26
27
28
43
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
42. COMMUNICATION WITH COURT
2
If it becomes necessary during your deliberations to communicate with me, you may send a note
through the Bailiff signed by your presiding juror or by one or more members of the jury. No
member of the jury should ever attempt to communicate with me except by a signed writing; I will
communicate with any member of the jury on anything concerning the case only in writing, or here
in open court. If you send out a question, I will consult with the parties before answering it, which
may take some time. You may continue your deliberations while waiting for the answer to any
question. Remember that you are not to tell anyone—including me—how the jury stands,
numerically or otherwise, until after you have reached a unanimous verdict or have been
discharged. Do not disclose any vote count in any note to the Court.
3
4
5
6
7
8
9
Source: Ninth Circuit Model Civil Jury Instructions - 3.2 (2007 Edition).
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
44
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
1
2
3
43. RETURN OF VERDICT
A verdict form has been prepared for you. After you have reached unanimous agreement on a
verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and
advise the Court that you are ready to return to the courtroom.
4
5
Source: Ninth Circuit Model Civil Jury Instructions - 3.3 (2007 Edition).
6
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
45
Case Nos.: 12-CV-04233-LHK; 13-CV-00233-LHK
FINAL JURY INSTRUCTIONS (ANNOTATED)
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