EXHIBIT C 

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Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

MIRIAM KIM (State Bar No. 238230)]

miriam.kim@mto.com

SKYLAR D. BROOKS (State Bar No. 310707)]

skylar.brooks@mto.com

EMILY C. CURRAN-HUBERTY (State Bar No. 293065)

emily.curran-huberty@mto.com

MUNGER, TOLLES & OLSON LLP

560 Mission Street

Twenty-Seventh Floor

San Francisco, California 94105-2907

Telephone: (415) 512-4000

Facsimile: (415) 512-4077

Attorneys for Plaintiff

RENEE LEPAGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

RENEE LEPAGE, an individual,

Plaintiff,

vs.

COUNTY OF NAPA; COUNTY OF NAPA 

SHERIFF’S DEPARTMENT; AND DEPUTY 

TIMOTHY REID,

Defendants.

Case No. 3:17-cv-00600-LB

JOINT [PROPOSED] JURY 

INSTRUCTIONS (UNDISPUTED AND 

DISPUTED)

Pursuant to Federal Rule of Civil Procedure 51, the parties request that the Court instruct 

the jury on the law as set forth in the following separately numbered proposed jury instructions. 

The parties have one dispute regarding the proper instruction relating to the state law battery 

claim. Compare Plaintiff’s Proposed Final Instruction No. 18 (9th Cir. Model Civil Jury 

Instruction 9.25), and Defendants’ Proposed Final Instruction No. 19 (CACI No. 1305).

Ms. LePage reserves the right to amend, supplement, or withdraw proposed jury 

instructions based on the resolution of pending motions in limine and ongoing meet and confer in 

connection with the final pretrial conference.

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-i- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

Number Title Source Page No. 

1 Statement of the Case (to be read to 

jury during voir dire)

Dkt. No. 031 at 5 2

2 Duty of Jury 9th Cir. 1.3 3

3 Claims and Defenses 9th Cir. 1.5 4

4 Burden of Proof – Preponderance of 

the Evidence

9th Cir. 1.6 5

5 What Is Evidence 9th Cir. 1.9 6

6 What Is Not Evidence 9th Cir. 1.10 7

7 Direct and Circumstantial Evidence 9th Cir. 1.12 8

8 Ruling on Objections 9th Cir. 1.13 9

9 Credibility of Witnesses 9th Cir. 1.14 10 - 11

10 Conduct of the Jury 9th Cir. 1.15 12 - 13

11 No Transcript Available to Jury 9th Cir. 1.17 14

12 Taking Notes 9th Cir. 1.18 15

13 Bench Conferences and Recesses 9th Cir. 1.20 16

14 Outline of Trial 9th Cir. 1.21 17

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-ii- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

FINAL JURY INSTRUCTIONS

Number Title Source Page No. 

1 Duty of the Jury 9th Cir. 1.4 18

2 Burden of Proof – Preponderance of 

the Evidence

9th Cir. 1.6 19

3 What Is Evidence 9th Cir. 1.9 20

4 What Is Not Evidence 9th Cir. 1.10 21

5 Direct and Circumstantial Evidence 9th Cir. 1.12 22

6 Ruling on Objections 9th Cir. 1.13 23

7 Credibility of Witnesses 9th Cir. 1.14 24 - 25

8 Impeachment Evidence – Witness 9th Cir. 2.9 26

9 Bench Conferences and Recesses 9th Cir. 1.20 27

10 Stipulations Of Fact 9th Cir. 2.2 28

11 Use of Requests for Admission 9th Cir. 2.12 29

12 Expert Opinion 9th Cir. 2.13 30

13 Evidence In Electronic Format 9th Cir. 2.16 31 - 32

14 Claims And Defenses 9th Cir. 1.5 33

15 Section 1983 Claim – Introductory 

Instruction

9th Cir. 9.1 34

16 Section 1983 Claim Against 

Defendant in Individual Capacity – Elements and Burden of Proof

9th Cir. 9.3 35

17 Particular Rights – Fourth 

Amendment – Unreasonable Seizure 

of Person – Generally 

9th Cir. 9.20 36

18 Particular Rights – Fourth 

Amendment – Unreasonable Seizure 

of Person – Excessive Force 

[Plaintiffs’ Proposed Instruction; 

Disputed Instruction Insofar as It 

9th Cir. 9.25; Aguilar v. City 

of Concord, No. 16-CV- 01670-LB, 2017 WL 

3895715, at *4 (N.D. Cal. 

Sept. 5, 2017); May v. City of 

37 - 38

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-iii- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

Also Applies to California Battery 

Claim]

San Mateo, No. 16-cv-00252-

LB—ECF No. 173 

19 Battery by a Peace Officer 

[Defendants’ Proposed Instruction 

(Disputed)]

CACI No. 1305 39-40

20 Bane Act – Essential Factual 

Elements (Civ. Code, § 52.1)

CACI No. 3066; Reese v. Cty. 

of Sacramento, 888 F.3d 

1030, 1043, 1045 (9th Cir. 

2018); Cornell v. City & Cty. 

of San Francisco, 17 Cal. 

App. 5th 766, 803-804 

(2017); S.R. Nehad v. 

Browder, 929 F.3d 1125, 

1142 n.15 (9th Cir. 2019)

41 - 42

21 Negligence – Essential Factual 

Elements

CACI No. 400 43

22 Basic Standard of Care CACI No. 401 44

23 Causation – Substantial Factor CACI No. 430 45

24 Custom and Practice CACI 413 46

25 Sudden Emergency CACI 452 47

26 Legal Relationship Not Disputed CACI No. 3703 48

27 Damages – Proof; Measures of 

Types of Damages

9th Cir. 5.1; 5.2 49

28 Unusually Susceptible Plaintiff CACI No. 3928 50

29 Punitive Damages 9th Cir. 5.5 51 - 52

30 Nominal Damages 9th Cir 5.6 53

31 Duty to Deliberate 9th Cir. 3.1 54

32 Consideration of the Evidence –

Conduct of the Jury

9th Cir. 3.2 55 - 56

33 Communication with Court 9th Cir. 3.3 57

34 Return of Verdict 9th Cir. 3.5 58

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-2- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 1:

STATEMENT OF THE CASE

On December 1, 2015, Plaintiff Renee LePage was in Courtroom E of the Napa County 

Superior Courthouse. She was wearing a neck brace from a recent spinal surgery. While Ms. 

LePage was present in the courtroom, an incident occurred and the courtroom was ordered cleared. 

Defendant Deputy Sheriff Timothy Reid was in the adjacent courtroom. He heard a call 

for assistance over the radio. He immediately walked quickly to Courtroom E. As Ms. LePage 

was exiting Courtroom E, she encountered defendant Reid in the vestibule area just outside the 

courtroom. 

The parties disagree on what happened. Ms. LePage claims that defendant Reid made eye 

contact with her, approached her directly from the hallway, and slammed her with his heavy, 

bullet-proof vest, pushing her into the door, and (when she bounced back), grabbed both of her 

upper arms with both of his hands and forcefully threw her back against the same door. 

Deputy Reid denies he battered or used excessive force on anyone as he entered the 

courtroom. Deputy Reid asserts he moved through a crowd of people exiting to respond and gain 

entry into the courtroom to render assistance. 

Ms. LePage claims the incident with defendant Reid caused her serious pain, loss, and 

emotional suffering. She seeks compensatory and punitive damages against Deputy Reid and his 

employers, Napa County Sheriff’s Department and County of Napa. Deputy Reid denies Ms. 

LePage’s medical issues are a result of contact between her and Deputy Reid.

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-3- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 2:

DUTY OF JURY

Members of the jury: You are now the jury in this case. It is my duty to instruct you on 

the law.

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.

At the end of the trial I will give you final instructions. It is the final instructions that will 

govern your duties.

Please do not read into these instructions, or anything I may say or do, that I have an 

opinion regarding the evidence or what your verdict should be.

[SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, No. 1.3 (2017 ed.) (Duty of 

Jury)]

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-4- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 3:

CLAIMS AND DEFENSES

To help you follow the evidence, I will give you a brief summary of the positions of the

parties:

Plaintiff Renee LePage asserts that defendant Reid used excessive force against her in the 

vestibule area outside a courtroom at the Napa County courthouse. Ms. LePage brings her claims 

under the United States Constitution, federal and California civil rights laws (42 U.S.C. § 1983 

and the Bane Act), and California common law (the battery and negligence claims). Ms. LePage 

also claims that Defendants County of Napa and the Napa County Sheriff’s Department are 

vicariously liable for defendant Reid’s wrongful acts. The plaintiff has the burden of proving 

these claims by a preponderance of the evidence.

The defendants deny these claims. The defendants have raised a number of defenses, 

including that Deputy Reid acted reasonably. The defendants have the burden of proof on their 

affirmative defenses.

The plaintiff denies defendants’ affirmative defenses.

[SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, No. 1.5 (2017 ed.) (Claims 

and Defenses)]

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-5- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 4:

BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proving any claim or affirmative defense by a 

preponderance of the evidence, it means you must be persuaded by the evidence that the claim or 

affirmative defense is more probably true than not true. You should base your decision on all of 

the evidence, regardless of which party presented it.

[SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, No. 1.6 (2017 ed.) (Burden of 

Proof – Preponderance of the Evidence)]

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-6- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 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 that are admitted into evidence;

3. any facts to which the lawyers have agreed; and

4. any facts that I may instruct you to accept as proved.

[SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, No. 1.9 (2017 ed.) (What is 

Evidence)]

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-7- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 6:

WHAT IS NOT EVIDENCE

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 may say in their opening statements, 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 is excluded or stricken, or that you are instructed to disregard, is not 

evidence and must not be considered. In addition some evidence may be received only for 

a limited purpose; when I instruct you to consider certain evidence only for a limited 

purpose, you must do so and you may not consider that evidence for any other purpose. 

(4) Anything you may see or hear when the court was not in session is not evidence. You 

are to decide the case solely on the evidence received at the trial.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.10 (2017 ed.) (What is Not 

Evidence)]

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-8- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 7:

DIRECT AND 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.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.12 (2017 ed.) (Direct and

Circumstantial Evidence)]

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-9- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 8:

RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a 

lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that 

it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the 

question may be answered or the exhibit received. If I sustain the objection, the question cannot 

be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, 

you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you disregard or 

ignore that evidence. That means when you are deciding the case, you must not consider the 

stricken evidence for any purpose.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.13 (2017 ed.) (Ruling on 

Objections)]

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-10- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 9:

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.

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, if any;

(5) the witness’s bias or prejudice, if any;

(6) whether other evidence contradicted the witness’s testimony;

(7) the reasonableness of the witness’s testimony in light of all the evidence; and

(8) any other factors that bear on believability.

Sometimes a witness may say something that is not consistent with something else he or 

she said. Sometimes different witnesses will give different versions of what happened. People 

often forget things or make mistakes in what they remember. Also, two people may see the same 

event but remember it differently. You may consider these differences, but do not decide that 

testimony is untrue just because it differs from other testimony.

However, if you decide that a witness has deliberately testified untruthfully about 

something important, you may choose not to believe anything that witness said. On the other 

hand, if you think the witness testified untruthfully about some things but told the truth about 

others, you may accept the part you think is true and ignore the rest.

The weight of the evidence as to a fact does not necessarily depend on the number of 

witnesses who testify. What is important is how believable the witnesses were, and how much 

weight you think their testimony deserves. 

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-11- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.14 (2017 ed.) (Credibility of 

Witnesses)]

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-12- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 10:

CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors.

First, keep an open mind throughout the trial, and do not decide what the verdict should be 

until you and your fellow jurors have completed your deliberations at the end of the case.

Second, because you must decide this case based only on the evidence received in the case 

and on my instructions as to the law that applies, you must not be exposed to any other 

information about the case or to the issues it involves during the course of your jury duty. Thus, 

until the end of the case or unless I tell you otherwise:

Do not communicate with anyone in any way and do not let anyone else communicate with 

you in any way about the merits of the case or anything to do with it. This includes discussing the 

case in person, in writing, by phone or electronic means, via email, text messaging, or any internet 

chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, 

Instagram, LinkedIn, Snapchat, or any other forms of social media. This applies to 

communicating with your fellow jurors until I give you the case for deliberation, and it applies to 

communicating with everyone else including your family members, your employer, the media or 

press, and the people involved in the trial, although you may notify your family and your 

employer that you have been seated as a juror in the case, and how long you expect the trial to last. 

But, if you are asked or approached in any way about your jury service or anything about this case, 

you must respond that you have been ordered not to discuss the matter and report the contact to 

the court.

Because you will receive all the evidence and legal instruction you properly may consider 

to return a verdict: do not read, watch or listen to any news or media accounts or commentary 

about the case or anything to do with it, although I have no information that there will be news 

reports about this case; do not do any research, such as consulting dictionaries, searching the 

Internet, or using other reference materials; and do not make any investigation or in any other way 

try to learn about the case on your own. Do not visit or view any place discussed in this case, and 

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-13- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

do not use Internet programs or other devices to search for or view any place discussed during the 

trial. Also, do not do any research about this case, the law, or the people involved—including the 

parties, the witnesses or the lawyers—until you have been excused as jurors. If you happen to 

read or hear anything touching on this case in the media, turn away and report it to me as soon as 

possible.

These rules protect each party’s right to have this case decided only on evidence that has 

been presented here in court. Witnesses here in court take an oath to tell the truth, and the 

accuracy of their testimony is tested through the trial process. If you do any research or 

investigation outside the courtroom, or gain any information through improper communications, 

then your verdict may be influenced by inaccurate, incomplete or misleading information that has 

not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial 

jury, and if you decide the case based on information not presented in court, you will have denied 

the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very 

important that you follow these rules.

A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a 

mistrial could result that would require the entire trial process to start over. If any juror is exposed 

to any outside information, please notify the court immediately.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.15 (2017 ed.) (Conduct of the 

Jury)]

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PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 11:

NO TRANSCRIPT AVAILABLE TO JURY

I urge you to pay close attention to the trial testimony as it is given. During deliberations 

you will not have a transcript of the trial testimony.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.17 (2017 ed.) (No Transcript 

Available to Jury)]

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-15- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 12:

TAKING NOTES

If you wish, you may take notes to help you remember the evidence. If you do take notes, 

please keep them to yourself until you go to the jury room to decide the case. Do not let 

notetaking distract you. When you leave, your notes should be left in the courtroom. No one will 

read your notes.

Whether or not you take notes, you should rely on your own memory of the evidence. 

Notes are only to assist your memory. You should not be overly influenced by your notes or those 

of other jurors.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.18 (2017 ed.) (Taking Notes)]

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-16- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 13:

BENCH CONFERENCES AND RECESSES

From time to time during the trial, it may become necessary for me to talk with the 

attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is 

present in the courtroom, or by calling a recess. Please understand that while you are waiting, we 

are working. The purpose of these conferences is not to keep relevant information from you, but 

to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion 

and error.

Of course, we will do what we can to keep the number and length of these conferences to a 

minimum. I may not always grant an attorney’s request for a conference. Do not consider my 

granting or denying a request for a conference as any indication of my opinion of the case or of 

what your verdict should be.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.20 (2017 ed.) (Bench 

Conferences and Recesses)]

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-17- Case No. 3:17-cv-00600-LB

PROPOSED JURY INSTRUCTIONS

PRELIMINARY INSTRUCTION 14:

OUTLINE OF TRIAL

Trials proceed in the following way: First, each side may make an opening statement. An 

opening statement is not evidence. It is simply an outline to help you understand what that party 

expects the evidence will show. A party is not required to make an opening statement.

The plaintiff will then present evidence, and counsel for the defendant may cross-examine. 

Then the defendant may present evidence, and counsel for the plaintiff may cross-examine.

After the evidence has been presented, I will instruct you on the law that applies to the case 

and the attorneys will make closing arguments.

After that, you will go to the jury room to deliberate on your verdict.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.21 (2017 ed.) (Outline of 

Trial)]

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FINAL JURY INSTRUCTIONS

FINAL INSTRUCTION 1:

DUTY OF THE JURY

Members of the Jury: Now that you have heard all of the evidence and the arguments of 

the attorneys, it is my duty to instruct you on the law that applies to this case.

A copy of these instructions will be sent to the jury room for you to consult during your 

deliberations.

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.

Please do not read into these instructions or anything that I may say or do or have said or 

done that I have an opinion regarding the evidence or what your verdict should be.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.4 (2017 ed.) (Duty of the Jury)]

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FINAL INSTRUCTION 2:

BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proving any claim or affirmative defense by a 

preponderance of the evidence, it means you must be persuaded by the evidence that the claim or 

affirmative defense is more probably true than not true. You should base your decision on all of 

the evidence, regardless of which party presented it.

[SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, No. 1.6 (2017 ed.) (Burden of 

Proof – Preponderance of the Evidence)]

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FINAL INSTRUCTION 3:

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 that are admitted into evidence;

3. any facts to which the lawyers have agreed; and

4. any facts that I have instructed you to accept as proved.

[SOURCE: Ninth Circuit Manual of Model Civil Jury Instructions, No. 1.9 (2017 ed.) (What is 

Evidence)]

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FINAL INSTRUCTION 4:

WHAT IS NOT EVIDENCE

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, 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 is excluded or stricken, or that you have been instructed to 

disregard, is not evidence and must not be considered. In addition some evidence was 

received only for a limited purpose; when I have instructed you to consider certain 

evidence only for a limited purpose, you must do so and you may not consider that 

evidence for any other purpose.

(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.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.10 (2017 ed.) (What is Not 

Evidence)]

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FINAL INSTRUCTION 5:

DIRECT AND 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.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.12 (2017 ed.) (Direct and 

Circumstantial Evidence)]

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FINAL INSTRUCTION 6:

RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a 

lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that 

it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the 

question may be answered or the exhibit received. If I sustain the objection, the question cannot 

be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, 

you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you disregard or 

ignore that evidence. That means when you are deciding the case, you must not consider the 

stricken evidence for any purpose.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.13 (2017 ed.) (Ruling on 

Objections)]

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FINAL INSTRUCTION 7:

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.

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, if any;

(5) the witness’s bias or prejudice, if any;

(6) whether other evidence contradicted the witness’s testimony;

(7) the reasonableness of the witness’s testimony in light of all the evidence; and

(8) any other factors that bear on believability.

Sometimes a witness may say something that is not consistent with something else he or 

she said. Sometimes different witnesses will give different versions of what happened. People 

often forget things or make mistakes in what they remember. Also, two people may see the same 

event but remember it differently. You may consider these differences, but do not decide that 

testimony is untrue just because it differs from other testimony.

However, if you decide that a witness has deliberately testified untruthfully about 

something important, you may choose not to believe anything that witness said. On the other 

hand, if you think the witness testified untruthfully about some things but told the truth about 

others, you may accept the part you think is true and ignore the rest.

The weight of the evidence as to a fact does not necessarily depend on the number of 

witnesses who testify. What is important is how believable the witnesses were, and how much 

weight you think their testimony deserves. 

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[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.14 (2017 ed.) (Credibility of 

Witnesses)]

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FINAL INSTRUCTION 8:

IMPEACHMENT EVIDENCE – WITNESS

The evidence that a witness gave an inconsistent statement 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.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 2.9 (2017 ed.) (Impeachment 

Evidence – Witness)]

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FINAL INSTRUCTION 9:

BENCH CONFERENCES AND RECESSES

From time to time during the trial, it became necessary for me to talk with the attorneys out 

of the hearing of the jury, either by having a conference at the bench when the jury was present in 

the courtroom, or by calling a recess. Please understand that while you were waiting, we were 

working. The purpose of these conferences is not to keep relevant information from you, but to 

decide how certain evidence is to be treated under the rules of evidence and to avoid confusion

and error.

Of course, we have done what we could to keep the number and length of these 

conferences to a minimum. I may not have always granted an attorney’s request for a conference. 

Do not consider my granting or denying a request for a conference as any indication of my opinion 

of the case or of what your verdict should be.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.20 (2017 ed.) (Bench 

Conferences and Recesses)]

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FINAL INSTRUCTION 10:

STIPULATIONS OF FACT

The parties have agreed to certain facts to be placed in evidence as Exhibits __ that have 

been read to you. You must therefore treat these facts as having been proved.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 2.2 (2017 ed.) (Stipulations of 

Facts)]

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FINAL INSTRUCTION 11:

USE OF REQUESTS FOR ADMISSION

Evidence was presented to you in the form of admissions to the truth of certain facts. 

These admissions were given in writing before the trial, in response to requests that were 

submitted under established court procedures. You must treat these facts as having been proved.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 2.12 (2017 ed.) (Use of Requests 

for Admission)]

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FINAL INSTRUCTION 12:

EXPERT OPINION

You have heard testimony from Dr. James Chen, Eric Madsen and Dr. Thomas Mampalam 

who testified to opinions and the reasons for their opinions. This opinion testimony is allowed, 

because of the education or experience of these witnesses.

Such opinion testimony should be judged like any other testimony. You may accept it or 

reject it, and give it as much weight as you think it deserves, considering the witness’s education 

and experience, the reasons given for the opinion, and all the other evidence in the case.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 2.13 (2017 ed.) (Expert 

Opinion)]

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FINAL INSTRUCTION 13:

EVIDENCE IN ELECTRONIC FORMAT

Those exhibits received in evidence that are capable of being displayed electronically will 

be provided to you in that form, and you will be able to view them in the jury room. A computer, 

projector, printer and accessory equipment will be available to you in the jury room.

A court technician will show you how to operate the computer and other equipment; how 

to locate and view the exhibits on the computer; and how to print the exhibits. You will also be 

provided with a paper list of all exhibits received in evidence. You may request a paper copy of 

any exhibit received in evidence by sending a note through the clerk. If you need additional 

equipment or supplies or if you have questions about how to operate the computer or other 

equipment, you may send a note to the clerk, signed by your foreperson or by one or more 

members of the jury. 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 clerk present for the sole purpose of assuring that the 

only matter that is discussed is the technical problem. When the court technician or any nonjuror 

is in the jury room, the jury shall not deliberate. No juror may say anything to the court technician 

or any nonjuror other than to describe the technical problem or to seek information about 

operation of the equipment. Do not discuss any exhibit or any aspect of the case.

The sole purpose of providing the computer in the jury room is to enable jurors to view the 

exhibits received in evidence in this case. You may not use the computer for any other purpose. 

At my direction, technicians have taken steps to ensure that the computer does not permit access to 

the Internet or to any "outside" website, database, directory, game, or other material. Do not 

attempt to alter the computer to obtain access to such materials. If you discover that the computer 

provides or allows access to such materials, you must inform the court immediately and refrain 

from viewing such materials. Do not remove the computer or any electronic data or disks from the 

jury room, and do not copy any such data.

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[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 2.16 (2017 ed.) (Expert 

Opinion)]

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FINAL INSTRUCTION 14:

CLAIMS AND DEFENSES

To help you follow the evidence, I will give you a brief summary of the positions of the 

parties:

Plaintiff Renee LePage asserts that defendant Reid used excessive force against her in the 

vestibule area outside a courtroom at the Napa County courthouse. Ms. LePage brings her claims 

under the United States Constitution, federal and California civil rights laws (42 U.S.C. § 1983 

and the Bane Act), and California common law (the battery and negligence claims). Ms. LePage 

also claims that Defendants County of Napa and the Napa County Sheriff’s Department are 

vicariously liable for defendant Reid’s wrongful acts. The plaintiff has the burden of proving these 

claims by a preponderance of the evidence.

The defendants deny these claims. The defendants have raised a number of defenses, 

including that Deputy Reid acted reasonably. The defendants have the burden of proof on their 

affirmative defenses.

The plaintiff denies defendants’ affirmative defenses.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 1.5 (2017 ed.) (Claims and 

Defenses)]

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FINAL INSTRUCTION 15:

SECTION 1983 CLAIM – INTRODUCTORY INSTRUCTION

The plaintiff brings a claim under the federal statute, 42 U.S.C. §1983, which provides that 

any person or persons who, under color of state law, deprives another of any rights, privileges, or 

immunities secured by the Constitution or laws of the United States shall be liable to the injured 

party.

The plaintiff brings other claims under state law, which will be explained to you later.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 9.1 (2017 ed.) (Section 1983 

Claim—Introductory Instruction)]

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FINAL INSTRUCTION 16:

SECTION 1983 CLAIM AGAINST DEFENDANT IN INDIVIDUAL CAPACITY – ELEMENTS AND BURDEN OF PROOF

In order to prevail on her §1983 claim against Defendant Deputy Timothy Reid, the 

plaintiff must prove each of the following elements by a preponderance of the evidence:

1. the defendant acted under color of state law; and

2. the acts and failures to act of the defendant deprived the plaintiff of her particular 

rights under the laws of the United States and the United States Constitution as 

explained in later instructions.

A person acts “under color of state law” when the person acts or purports to act in the 

performance of official duties under any state, county, or municipal law, ordinance or regulation. 

The parties have stipulated that Deputy Reid was acting under color of state law.

If you find the plaintiff has proved each of these elements, and if you find that the plaintiff 

has proved all the elements she is required to prove under the two substantive instructions that 

deal with the particular rights (which are the next two instructions called (1) Particular Rights –

Fourth Amendment – Unreasonable Seizure of Person – Generally and (2) Particular Rights –

Fourth Amendment – Unreasonable Seizure of Person – Excessive Force), your verdict should be 

for the plaintiff. If, on the other hand, you find that the plaintiff has failed to prove any one or 

more of these elements, your verdict should be for the defendant.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 9.3 (2017 ed.) (Section 1983 

Claim Against Defendant in Individual Capacity – Elements and Burden of Proof)] 

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FINAL INSTRUCTION 17:

PARTICULAR RIGHTS – FOURTH AMENDMENT – UNREASONABLE

SEIZURE OF PERSON – GENERALLY 

As previously explained, the plaintiff has the burden of proving that the acts of defendant 

Reid deprived her of particular rights under the United States Constitution. In this case, the 

plaintiff alleges defendant Reid deprived her of her rights under the Fourth Amendment to the 

Constitution when defendant Reid used force against her in the vestibule area outside Courtroom 

E

Under the Fourth Amendment, a person has the right to be free from an unreasonable 

seizure of her person. In order to prove the defendant deprived the plaintiff of this Fourth 

Amendment right, the plaintiff must prove the following additional elements by a preponderance 

of the evidence:

1. Defendant Reid seized the plaintiff’s person;

2. in seizing the plaintiff’s person, defendant Reid acted intentionally; and

3. the seizure was unreasonable.

A defendant “seizes” the plaintiff’s person when he restrains the plaintiff’s liberty through 

coercion, physical force or a show of authority. A person’s liberty is restrained when, under all of 

the circumstances, a reasonable person would not have felt free to ignore the presence of law 

enforcement officers and to go about her business.

A person acts “intentionally” when the person acts with a conscious objective to engage in 

particular conduct alleged. Therefore, the plaintiff must prove that defendant Reid intended to use 

force against her. It is not enough to prove that the defendant negligently or accidentally engaged 

in that action. But, while the plaintiff must prove that the defendant intended to act, the plaintiff 

need not prove that the defendant intended to violate the plaintiff’s Fourth Amendment rights.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 9.20 (2017 ed.) (Particular 

Rights – Fourth Amendment – Unreasonable Seizure of Person - Generally)] 

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FINAL INSTRUCTION 18 (DISPUTED):

PARTICULAR RIGHTS – FOURTH AMENDMENT – UNREASONABLE SEIZURE OF 

PERSON – EXCESSIVE FORCE

(INSTRUCTION ALSO APPLIES TO CALIFORNIA BATTERY CLAIM)

(PROPOSED BY PLAINTIFF)

In general, a seizure of a person is unreasonable under the Fourth Amendment (and 

constitutes battery under California law) if a police officer uses excessive force in defending 

himself or others. Therefore, in order to prove an unreasonable seizure in this case, the plaintiff 

must prove by a preponderance of the evidence that the defendant Reid used excessive force when 

he encountered her in the vestibule area outside Courtroom E. 

Under the Fourth Amendment, a police officer may use only such force as is “objectively 

reasonable” under all of the circumstances. You must judge the reasonableness of a particular use 

of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of 

hindsight. Although the facts known to the officer are relevant to your inquiry, an officer’s 

subjective intent or motive is not relevant to your inquiry.

In determining whether the officer used excessive force in this case, consider all of the 

circumstances known to the officer on the scene, including:

(1) the nature of the crime or other circumstances known to the officer at the time force 

was applied;

(2) whether the plaintiff posed an immediate threat to the safety of the officer or to 

others;

(3) whether the plaintiff was actively resisting arrest or attempting to evade arrest by 

flight;

(4) the amount of time the officer had to determine the type and amount of force that 

reasonably appeared necessary, and any changing circumstances during that period;

(5) the type and amount of force used;

(6) the availability of alternative methods to gain entry into the courtroom; 

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(7) the number of lives at risk and the parties’ relative culpability; i.e., which party 

created the dangerous situation, and which party is more innocent; and

(8) whether it was practical for the officer to give warning of the imminent use of 

force, and whether such warning was given.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 9.25 (2017 ed.) (Particular 

Rights – Fourth Amendment – Unreasonable Seizure of Person – Excessive (Deadly and 

Nondeadly) Force; see also Judicial Council of California Civil Jury Instructions (CACI), No. 

1305 (2019 ed.) (Battery by a Peace Officer); Aguilar v. City of Concord, No. 16-CV-01670-LB, 

2017 WL 3895715, at *4 (N.D. Cal. Sept. 5, 2017) (Beeler, J.) (“That said, generally battery is the 

state charge that accompanies the federal excessive-force claim (and has the same legal 

instruction). See May v. City of San Mateo, No. 16-cv-00252-LB—ECF No. 173 (final jury 

instructions).”); see also Estate of Casillas v. City of Fresno, No. 1:16-CV-1042 AWI-SAB, 2019 

WL 2869079, at *19 (E.D. Cal. July 3, 2019); Yount v. City of Sacramento, 43 Cal. 4th 885, 902, 

183 P.3d 471, 484 (2008).] 

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FINAL INSTRUCTION 19 (DISPUTED):

BATTERY BY PEACE OFFICER

(PROPOSED BY DEFENDANTS)

Plaintiff Renee LePage claims that Defendant Deputy Timothy Reid of the Napa County 

Sheriff’s Office harmed her by using unreasonable force to arrest her/prevent her escape/overcome 

her resistance [insert other applicable action]. To establish this claim, Renee LePage must prove 

all of the following:

1. That Defendant Deputy Timothy Reid intentionally touched Renee LePage [or 

caused Renee LePage to be touched];

2. That Defendant Deputy Timothy Reid used unreasonable forced to [arrest/prevent 

the escape of/overcome the resistance of/insert other applicable action] Renee LePage;

3. That Renee LePage did not consent to the use of that force;

4. That Renee LePage was harmed; and

5. That Defendant Deputy Timothy Reid’s use of unreasonable force was a substantial 

factor in causing Renee LePage’s harm.

A sheriff’s deputy may use reasonable force to arrest or detain a person when he or she has 

reasonable cause to believe that that person has committed a crime. Even if the sheriff’s deputy is 

mistaken, a person being arrested or detained has a duty not to use force to resist the sheriff’s 

deputy unless the sheriff’s deputy is using unreasonable force.

In deciding whether Defendant Deputy Timothy Reid of the Napa County Sheriff’s Office 

used unreasonable force, you must determine the amount of force that would have appeared 

reasonable to a sheriff’s deputy in Defendant Deputy Timothy Reid’s position under the same or 

similar circumstances. You should consider, among other factors, the following:

(a) The seriousness of the crime at issue;

(b) Whether Renee LePage reasonably appeared to pose an immediate threat to the 

safety of Defendant Deputy Timothy Reid or others; and

(c) Whether Renee LePage was actively resisting arrest or attempting to evade arrest.

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A sheriff’s deputy who makes or attempts to make an arrest is not required to retreat or 

cease from his or her efforts because of the resistance or threatened resistance of the person being 

arrested.

[SOURCE: Judicial Council of California Civil Jury Instructions, No. 1305 (2018 ed.) (Battery by 

Peace Officer)] 

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FINAL INSTRUCTION 20:

BANE ACT – ESSENTIAL FACTUAL ELEMENTS (CIV. CODE §52.1)

Plaintiff also seeks to recover damages against the defendants for a violation of civil rights 

under California Civil Code § 52.1, known as the Bane Act.

Plaintiff Ms. LePage claims that defendant Reid intentionally interfered with or attempted 

to interfere with her enjoyment of her civil rights by threats, intimidation, or coercion. To 

establish this claim, Ms. LePage must prove all of the following by a preponderance of the 

evidence:

1. That defendant Reid acted violently against plaintiff LePage and to prevent her 

from exercising or enjoying her right to be free of unreasonable seizures in the form of excessive 

force, as I described to you in the previous instruction, which is called Particular Rights—Fourth 

Amendment—Unreasonable Seizure of Person—Excessive Force;

2. That defendant Reid intended to deprive Ms. LePage of her enjoyment of the 

interests protected by the right to be free from unreasonable seizure;

3. That Ms. LePage suffered injury, damage, loss, or harm; and 

4. That defendant Reid’s conduct was a substantial factor in causing Ms. LePage to 

suffer injury, damage, loss, or harm.

[SOURCE: Judicial Council of California Civil Jury Instructions (CACI), No. 3066 (2019 

ed., Supplement, adopted by the Judicial Council in May, 2019) (Bane Act – Essential Factual 

Elements (Civ. Code, § 52.1)]

For purposes of a claim under the Bane Act, a person acts “intentionally” when he intends 

the force and its unreasonableness, as more than necessary under the circumstances. But it is not 

necessary to show that the defendant knew he was acting unlawfully at the time of the incident. 

Instead, the plaintiff may prove intent by evidence that the defendant acted in reckless disregard of 

the right at issue. 

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[SOURCE: Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043, 1045 (9th Cir. 2018); 

Cornell v. City & Cty. of San Francisco, 17 Cal. App. 5th 766, 803-804 (2017); S.R. Nehad v. 

Browder, 929 F.3d 1125, 1142 n.15 (9th Cir. 2019)]

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FINAL INSTRUCTION 21:

NEGLIGENCE – ESSENTIAL FACTUAL ELEMENTS

Plaintiff Renee LePage claims that she was harmed by defendant Reid’s negligence. To 

establish this claim, Ms. LePage must prove all of the following:

1. That defendant Reid was negligent;

2. That plaintiff LePage was harmed; and

3. That defendant Reid’s negligence was a substantial factor in causing plaintiff 

LePage’s harm.

[SOURCE: Judicial Council of California Civil Jury Instructions (CACI), No. 400 (2019 ed., 

Online-Only Revisions, adopted by the Judicial Council on July 19, 2019, available at 

https://www.courts.ca.gov/partners/documents/additional-online-only-revisions.pdf) (Negligence 

– Essential Factual Elements)]

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FINAL INSTRUCTION 22:

BASIC STANDARD OF CARE

Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A law enforcement officer can be negligent by acting or by failing to act. A law 

enforcement officer is negligent if he does something that a reasonably careful person would not 

do in the same situation or fails to do something that a reasonably careful person would do in the 

same situation.

You must decide how a reasonably careful law enforcement officer would have acted in

defendant Reid’s situation. 

[SOURCE: Judicial Council of California Civil Jury Instructions (CACI), No. 401 (2019 ed.)]

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FINAL INSTRUCTION 23:

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.

[SOURCE: Judicial Council of California Civil Jury Instructions (CACI), No. 430 (2019 ed., 

Supplement, adopted by the Judicial Council in May 2019) (Causation – Substantial Factor)]

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FINAL INSTRUCTION 24:

CUSTOM OR PRACTICE

You may consider customs or practices in the community in deciding whether Defendant 

Deputy Timothy Reid acted reasonably. Customs and practices do not necessarily determine what 

a reasonable person would have done in Defendant Deputy Timothy Reid’s situation. They are 

only factors for you to consider.

Following a custom or practice does not excuse conduct that is unreasonable. You should 

consider whether the custom or practice itself is reasonable. 

[SOURCE: Judicial Council of California Civil Jury Instructions, No. 413 (2019 ed.) (Custom or 

Practice)]

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FINAL INSTRUCTION 25

SUDDEN EMERGENCY

Defendant Deputy Timothy Reid claims that he was not negligent because he acted with 

reasonable care in an emergency situation. Defendant Deputy Timothy Reid was not negligent if 

he proves all of the following:

1. That there was a sudden and unexpected emergency situation in which someone 

was in actual or apparent danger of immediate injury;

2. That Defendant Deputy Timothy Reid did not cause the emergency; and

3. That Defendant Deputy Timothy Reid acted as a reasonably careful person would 

have acted in similar circumstances, even if it appears later that a different course of action would 

have been safer.

[SOURCE: Judicial Council of California Civil Jury Instructions, No. 452 (2019 Supp ed.) 

(Sudden Emergency)]

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FINAL INSTRUCTION NO. 26:

LEGAL RELATIONSHIP NOT DISPUTED

In this case, Defendant Deputy Reid was the employee of Defendants Napa County 

Sheriff’s Department and County of Napa. 

If you find that Deputy Reid was acting within the scope of his employment when the 

incident occurred, then Defendants Napa County Sheriff’s Department and County of Napa are 

responsible for any harm caused by Deputy Reid’s violation of the Bane Act, battery, or 

negligence.

The parties have stipulated that Deputy Reid was acting within the scope of his 

employment when the incident occurred. 

[SOURCE: Judicial Council of California Civil Jury Instructions (CACI), No. 3703 (2019 ed.)] 

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FINAL INSTRUCTION 27:

DAMAGES – PROOF; MEASURES OF TYPES OF DAMAGES

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 the plaintiff on any claim, you must determine the plaintiff’s damages for 

such claim. The plaintiff has 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 defendant. 

In determining the measure of damages, you should consider the following:

1. The nature and extent of the injuries;

2. The disability, disfigurement, loss of enjoyment of life experienced and that with 

reasonable probability will be experienced in the future;

3. The physical and emotional pain and suffering experienced and that with reasonable 

probability will be experienced in the future;

4. The reasonable value of necessary medical care, treatment, and services received to the 

present time, and that with reasonable probability will be required in the future;

5. The reasonable value of wages, employment, and employment benefits lost up to the 

present time, and that with reasonable probability will be lost in the future; and

6. The reasonable value of necessary caregiver services required up to the present time, 

and that with reasonable probability will be required in the future;

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.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 5.1 & 5.2 (2017 ed.) (Damages –

Proof; Measures of Types of Damages)] 

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FINAL INSTRUCTION 28:

UNUSUALLY SUSCEPTIBLE PLAINTIFF

You must decide the full amount of money that will reasonably and fairly compensate 

plaintiff Renee LePage for all damages caused by the wrongful conduct of defendant Reid, even if 

Ms. LePage was more susceptible to injury than a normally healthy person would have been, and 

even if a normally healthy person would not have suffered similar injury.

[SOURCE: Judicial Council of California Civil Jury Instructions (CACI), No. 3928 (2019 ed.) 

(Unusually Susceptible Plaintiff)]

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FINAL INSTRUCTION 29:

PUNITIVE DAMAGES 

If you find for the plaintiff, you may, but are not required to, award punitive damages. The 

purposes of punitive damages are to punish a defendant and to deter similar acts in the future. 

Punitive damages may not be awarded to compensate a plaintiff.

The plaintiff has the burden of proving by a preponderance of the evidence that punitive 

damages should be awarded and, if so, the amount of any such damages.

You may award punitive damages only if you find that the defendant’s conduct that 

harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff’s rights. 

Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring 

the plaintiff. Conduct is in reckless disregard of the plaintiff’s rights if, under the circumstances, it 

reflects complete indifference to the plaintiff’s safety or rights, or if the defendant acts in the face 

of a perceived risk that his actions will violate the plaintiff’s rights under federal law. An act or 

omission is oppressive if the defendant injures or damages or otherwise violates the rights of the 

plaintiff with unnecessary harshness or severity, such as by misusing or abusing authority or 

power or by taking advantage of some weakness or disability or misfortune of the plaintiff.

If you find that punitive damages are appropriate, you must use reason in setting the 

amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but 

should not reflect bias, prejudice or sympathy toward any party. In considering the amount of any 

punitive damages, consider the degree of reprehensibility of the defendant’s conduct, including 

whether the conduct that harmed the plaintiff was particularly reprehensible because it also caused 

actual harm or posed a substantial risk of harm to people who are not parties to this case. You 

may not, however, set the amount of any punitive damages in order to punish the defendant for 

harm to anyone other than the plaintiff in this case.

In addition, you may consider the relationship of any award of punitive damages to any 

actual harm inflicted on the plaintiff.

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You may impose punitive damages against one or more of the defendants and not others, 

and may award different amounts against different defendants. Punitive damages may be awarded 

even if you award plaintiff only nominal, and not compensatory, damages.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 5.5 (2017 ed.) (Punitive 

Damages)] 

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FINAL INSTRUCTION 30:

NOMINAL DAMAGES 

The law that applies to this case authorizes an award of nominal damages. If you find for 

the plaintiff but you find that the plaintiff has failed to prove damages as defined in these 

instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions. No. 5.6 (2017 ed. Updated June 

2019)]

Comment from Ninth Circuit Manual of Civil Jury Instructions

Nominal damages are not available in every case. The court must determine whether 

nominal damages are permitted. See, e.g., Chew v. Gates, 27 F.3d 1432, 1437 (9th Cir. 1994) 

(Section 1983 action); Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992) (Title VII 

action).

When a plaintiff has indisputably suffered an actual injury, an award of compensatory 

damages is mandatory. Hazle v. Crofoot, 727 F.3d 983, 991-92 (9th Cir. 2013). However, 

nominal damages “must be awarded in cases in which the plaintiff is not entitled to compensatory 

damages, such as cases in which no actual injury is incurred or can be proven.” Id. at n.6.

Regarding cases brought under 42 U.S.C. § 1983, see Carey v. Piphus, 435 U.S. 247, 266-

67 (1978) (involving violation of procedural due process); Hazle, 727 F.3d at 991 n.6 (involving 

violation of substantive constitutional rights); Floyd v. Laws, 929 F.2d 1390, 1401 n.9 (9th Cir. 

1991) (providing suggested language).

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions. No. 5.6 (2017 ed. Updated June 

2019)]

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FINAL INSTRUCTION 31:

DUTY TO DELIBERATE 

Before you begin your deliberations, elect one member of the jury as your presiding juror. 

The presiding juror will preside over the deliberations and serve as the spokesperson for the jury 

in court.

You shall diligently strive to reach agreement with all of the other jurors if you can do so. 

Your verdict must be unanimous.

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 their views.

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 be unwilling to change 

your opinion if the discussion persuades you that you should. But do not come to a decision 

simply because other jurors think it is right, or change an honest belief about the weight and effect 

of the evidence simply to reach a verdict.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 3.1 (2017 ed.) (Duty to 

Deliberate)] 

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FINAL INSTRUCTION 32:

CONSIDERATION OF EVIDENCE – CONDUCT OF THE JURY 

Because you must base your verdict only on the evidence received in the case and on these 

instructions, I remind you that you must not be exposed to any other information about the case or 

to the issues it involves. Except for discussing the case with your fellow jurors during your 

deliberations:

Do not communicate with anyone in any way and do not let anyone else communicate with 

you in any way about the merits of the case or anything to do with it. This includes discussing the 

case in person, in writing, by phone or electronic means, via email, via text messaging, or any 

internet chat room, blog, website or application, including but not limited to Facebook, YouTube, 

Twitter, Instagram, LinkedIn, Snapchat, or any other forms of social media. This applies to 

communicating with your family members, your employer, the media or press, and the people 

involved in the trial. If you are asked or approached in any way about your jury service or 

anything about this case, you must respond that you have been ordered not to discuss the matter 

and to report the contact to the court.

Do not read, watch, or listen to any news or media accounts or commentary about the case 

or anything to do with it, although I have no information that there will be news reports about this 

case; do not do any research, such as consulting dictionaries, searching the Internet, or using other 

reference materials; and do not make any investigation or in any other way try to learn about the 

case on your own. Do not visit or view any place discussed in this case, and do not use Internet 

programs or other devices to search for or view any place discussed during the trial. Also, do not 

do any research about this case, the law, or the people involved—including the parties, the 

witnesses or the lawyers—until you have been excused as jurors. If you happen to read or hear 

anything touching on this case in the media, turn away and report it to me as soon as possible.

These rules protect each party’s right to have this case decided only on evidence that has 

been presented here in court. Witnesses here in court take an oath to tell the truth, and the accuracy 

of their testimony is tested through the trial process. If you do any research or investigation 

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outside the courtroom, or gain any information through improper communications, then your 

verdict may be influenced by inaccurate, incomplete or misleading information that has not been 

tested by the trial process. Each of the parties is entitled to a fair trial by an impartial jury, and if 

you decide the case based on information not presented in court, you will have denied the parties a 

fair trial. Remember, you have taken an oath to follow the rules, and it is very important that you 

follow these rules.

A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a 

mistrial could result that would require the entire trial process to start over. If any juror is exposed 

to any outside information, please notify the court immediately.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 3.2 (2017 ed.) (Consideration of 

Evidence – Conduct of the Jury)] 

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FINAL INSTRUCTION 33:

COMMUNICATION WITH COURT 

If it becomes necessary during your deliberations to communicate with me, you may send 

a note through the clerk, signed by any one or more of you. No member of the jury should ever 

attempt to communicate with me except by a signed writing. I will not communicate with any 

member of the jury on anything concerning the case except in writing or here in open court. If you 

send out a question, I will consult with the lawyers 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 the court—how the jury stands, whether in 

terms of vote count or otherwise, until after you have reached a unanimous verdict or have been 

discharged. 

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 3.3 (2017 ed.) (Communication 

with Court)] 

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FINAL INSTRUCTION 34:

RETURN OF VERDICT

A verdict form has been prepared for you. After you have reached unanimous agreement 

on a verdict, your presiding juror should complete the verdict form according to your 

deliberations, sign and date it, and advise the clerk that you are ready to return to the courtroom.

[SOURCE: Ninth Circuit Manual of Civil Jury Instructions, No. 3.5 (2017 ed.) (Return of 

Verdict)] 

DATED: September 6, 2019 MUNGER, TOLLES & OLSON LLP

By: /s/ Miriam Kim

MIRIAM KIM

Attorneys for Plaintiff

RENEE LEPAGE

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