3705 . Existence of “Agency” Relationship Disputed
[ Name of plaintiff ] claims that [ name of agent ] was [ name of defendant ]’ s
agent and that [ name of defendant ] is therefor e responsible for [ name of
agent ]’ s conduct.
If [ name of plaintiff ] proves that [ name of defendant ] gave [ name of agent ]
authority to act on [his/her/ nonbinary pr onoun /its] behalf, then [ name of
agent ] was [ name of defendant ]’ s agent. This authority may be shown by
words or may be implied by the parties’ conduct. This authority cannot
be shown by the words of [ name of agent ] alone.
New September 2003; Revised November 2017
Directions for Use
This instruction should be used when the factual setting involves a relationship other
than employment, such as homeowner-real estate agent or franchisor -franchisee. For
an instruction for use for employment, give CACI No. 3704, Existence of
“Employee” Status Disputed . The secondary factors (a) through (j) in CACI No.
3704 may be given with this instruction also. (See Secci v . United Independent T axi
Drivers, Inc. (2017) 8 Cal.App.5th 846, 855 [214 Cal.Rptr .3d 379].)
Sources and Authority
• “Agent” Defined. Civil Code section 2295.
• “[A] principal who personally engages in no misconduct may be vicariously
liable for the tortious act committed by an agent within the course and scope of
the agency . [Citation.] Agency is the relationship which results from the
manifestation of consent by one person to another that the other shall act on his
behalf and subject to his control, and consent by the other so to act . . . .
[Citation.] While the existence of an agency relationship is ‘typically a question
of fact, when ‘ “the evidence is susceptible of but a single inference,” ’ summary
judgment may be appropriate.” ( Bar enbor g v . Sigma Alpha Epsilon Fraternity
(2019) 33 Cal.App.5th 70, 85 [244 Cal.Rptr .3d 680], internal citations omitted.)
• “ ‘ “The existence of an agency is a factual question within the province of the
trier of fact whose determination may not be disturbed on appeal if supported by
substantial evidence. [Citation.]” [Citation.] Inferences drawn from conflicting
evidence by the trier of fact are generally upheld. [Citation.]’ ‘Only when the
essential facts are not in conflict will an agency determination be made as a
matter of law . [Citation.]’ ” ( Secci, supra, 8 Cal.App.5th at p. 854.)
• The burden of proving the existence of an agency rests on the one af firming its
existence. ( Burbank v . National Casualty Co. (1941) 43 Cal.App.2d 773, 781
[1 1 1 P .2d 740].)
• One who performs a mere favor for another without being subject to any legal
duty of service and without assenting to right of control is not an agent, because
the agency relationship rests upon mutual consent. ( Hanks v . Carter & Higgins
of Cal., Inc. (1967) 250 Cal.App.2d 156, 161 [58 Cal.Rptr . 190].)
• An agency must rest upon an agreement. ( D’Acquisto v . Evola (1949) 90
Cal.App.2d 210, 213 [202 P .2d 596].) “Agency may be implied from the
circumstances and conduct of the parties.” ( Michelson v . Hamada (1994) 29
Cal.App.4th 1566, 1579 [36 Cal.Rptr .2d 343], internal citations omitted.)
• “Whether a person performing work for another is an agent or an independent
contractor depends primarily upon whether the one for whom the work is done
has the legal right to control the activities of the alleged agent. . . . It is not
essential that the right of control be exercised or that there be actual supervision
of the work of the agent. The existence of the right of control and supervision
establishes the existence of an agency relationship.” ( Malloy v . Fong (1951) 37
Cal.2d 356, 370 [232 P .2d 241], internal citations omitted.)
• “For an agency relationship to exist, the asserted principal must have a suf ficient
right to control the relevant aspect of the purported agent’ s day-to-day
operations.” ( Bar enbor g, supra , 33 Cal.App.5th at p. 85.)
• When the principal controls only the results of the work and not the means by
which it is accomplished, an independent contractor relationship is established.
( White v . Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 25 [202 Cal.Rptr . 141],
overruled on other grounds in Soule v . GM Corp. (1994) 8 Cal.4th 548 [34
Cal.Rptr .2d 607, 882 P .2d 298].)
• “ ‘[W]hether an agency relationship has been created or exists is determined by
the relation of the parties as they in fact exist by agreement or acts [citation],
and the primary right of control is particularly persuasive. [Citations.] Other
factors may be considered to determine if an independent contractor is acting as
an agent, including: whether the “principal” and “agent” are engaged in distinct
occupations; the skill required to perform the “agent’ s” work; whether the
“principal” or “agent” supplies the workplace and tools; the length of time for
completion; whether the work is part of the ‘principal’ s” regular business; and
whether the parties intended to create an agent/principal relationship.
[Citation.]’ ” ( Secci, supra, 8 Cal.App.5th at p. 855.)
• “[T]here is substantial overlap in the factors for determining whether one is an
employee or an agent.” ( Jackson v . AEG Live, LLC (2015) 233 Cal.App.4th
1 156, 1 184 [183 Cal.Rptr .3d 394].)
• “Agency and independent contractorship are not necessarily mutually exclusive
legal categories as independent contractor and servant or employee are. In other
words, an agent may also be an independent contractor . One who contracts to act
on behalf of another and subject to the other ’ s control, except with respect to his
physical conduct, is both an agent and an independent contractor .” ( Jackson,
supra , 233 Cal.App.4th at p. 1 184, original italics, internal citations omitted.)
• “[Defendant] argues that when public regulations require a company to exert
CACI No. 3705 VICARIOUS RESPONSIBILITY
control over its independent contractors, evidence of that government-mandated
control cannot support a finding of vicarious liability based on agency . This
argument conflicts with the policy behind the regulated hirer exception, which
emphasizes that the ef fectiveness of public regulations ‘would be impaired if the
carrier could circumvent them by having the regulated operations conducted by
an independent contractor .’ ” ( Secci, supra, 8 Cal.App.5th at pp. 860-861.)
Secondary Sources
3 W itkin, Summary of California Law (1 1th ed. 2017) Agency and Employment,
Greenwald et al., California Practice Guide: Real Property T ransactions, Ch. 2-C
Br oker ’ s Relationship and Obligations to Principal and Thir d Parties , ¶ 2:120 et
seq. (The Rutter Group)
Haning et al., California Practice Guide: Personal Injury , Ch. 2(II)-A, V icarious
Liability , ¶¶ 2:600, 2:61 1 (The Rutter Group)
1 Levy et al., California T orts, Ch. 8, V icarious Liability , § 8.04 (Matthew Bender)
2 California Employment Law , Ch. 30, Employers’ T ort Liability to Third Parties for
Conduct of Employees , § 30.04 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer ’ s Liability for
Employee’ s T orts , § 248.51 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent ,
§ 427.12 (Matthew Bender)
18 California Points and Authorities, Ch. 182, Principal and Agent , § 182.30 et seq.
(Matthew Bender)
California Civil Practice: T orts §§ 3:26-3:27 (Thomson Reuters)
VICARIOUS RESPONSIBILITY CACI No. 3705
Page last reviewed May 2024
NYU Law professor Samuel Estreicher and 3L Klara Nedrelow analyze the International Court of Justice’s July 19, 2024 advisory opinion on Israel’s policies in the occupied Palestinian territories, focusing on the dissenting opinion of Judge Julia Sebutinde.
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